AMENDED AND RESTATED CREDIT AGREEMENT Among UNITED COMPONENTS, INC., as Borrower, the Several Lenders From Time to Time Parties Hereto, LEHMAN BROTHERS INC. And J.P. MORGAN SECURITIES INC., as Joint Lead Arrangers, JPMORGAN CHASE BANK, N.A., as …

 

Exhibit 10.12
EXECUTION VERSION
 
$405,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
among
UNITED COMPONENTS, INC.,
as Borrower,
The Several Lenders
from Time to Time Parties Hereto,
LEHMAN BROTHERS INC.
and
J.P. MORGAN SECURITIES INC.,
as Joint Lead Arrangers,


JPMORGAN CHASE BANK, N.A.,
as Syndication Agent,
ABN AMRO BANK N.V.,
BANK OF AMERICA, N.A.,
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as Co-Documentation Agents



and
LEHMAN COMMERCIAL PAPER INC.,
as Administrative Agent
Dated as of May 25, 2006
 


 

TABLE OF CONTENTS
             
        Page
 
  SECTION 1. DEFINITIONS        
1.1
  Defined Terms     1  
1.2
  Other Definitional Provisions     22  
 
  SECTION 2. AMOUNT AND TERMS OF COMMITMENTS        
2.1
  Tranche D Term Loan Commitments     23  
2.2
  Procedure for Tranche D Term Loan Borrowing     23  
2.3
  Repayment of Tranche D Term Loans     24  
2.4
  Revolving Credit Commitments     24  
2.5
  Procedure for Revolving Credit Borrowing     25  
2.6
  Swing Line Commitment     25  
2.7
  Procedure for Swing Line Borrowing; Refunding of Swing Line Loans     25  
2.8
  Repayment of Loans; Evidence of Debt     27  
2.9
  Commitment Fees, etc     27  
2.10
  Termination or Reduction of Revolving Credit Commitments     28  
2.11
  Optional Prepayments     28  
2.12
  Mandatory Prepayments and Commitment Reductions     28  
2.13
  Conversion and Continuation Options     29  
2.14
  Minimum Amounts and Maximum Number of Eurodollar Tranches     30  
2.15
  Interest Rates and Payment Dates     30  
2.16
  Computation of Interest and Fees     31  
2.17
  Inability to Determine Interest Rate     31  
2.18
  Pro Rata Treatment and Payments     31  
2.19
  Requirements of Law     33  
2.20
  Taxes     34  
2.21
  Indemnity     36  
2.22
  Illegality     36  
2.23
  Change of Lending Office     36  
2.24
  Replacement of Lenders under Certain Circumstances     37  
 
  SECTION 3. LETTERS OF CREDIT        
3.1
  L/C Commitment     37  
3.2
  Procedure for Issuance of Letter of Credit     37  
3.3
  Fees and Other Charges     38  
3.4
  L/C Participations     38  
3.5
  Reimbursement Obligation of the Borrower     39  
3.6
  Obligations Absolute     39  
3.7
  Letter of Credit Payments     40  
3.8
  Applications     40  
 
  SECTION 4. REPRESENTATIONS AND WARRANTIES        
4.1
  Financial Condition     40  
4.2
  No Change     41  
4.3
  Corporate Existence; Compliance with Law     41  
4.4
  Power; Authorization; Enforceable Obligations     41  
4.5
  No Legal Bar     41  
4.6
  No Material Litigation     42  
4.7
  No Default     42  
4.8
  Ownership of Property; Liens     42  
4.9
  Intellectual Property     42  

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        Page
4.10
  Taxes     42  
4.11
  Federal Regulations     42  
4.12
  Labor Matters     42  
4.13
  ERISA     43  
4.14
  Investment Company Act; Other Regulations     43  
4.15
  Subsidiaries     43  
4.16
  Use of Proceeds     43  
4.17
  Environmental Matters     43  
4.18
  Accuracy of Information, etc.     44  
4.19
  Security Documents     44  
4.20
  Solvency     45  
4.21
  Senior Indebtedness     45  
4.22
  Regulation H     45  
 
  SECTION 5. CONDITIONS PRECEDENT        
5.1
  Conditions to Initial Extension of Credit     45  
5.2
  Conditions to Each Extension of Credit     47  
 
  SECTION 6. AFFIRMATIVE COVENANTS        
6.1
  Financial Statements     48  
6.2
  Certificates; Other Information     48  
6.3
  Payment of Taxes, etc     49  
6.4
  Conduct of Business and Maintenance of Existence, etc.     49  
6.5
  Maintenance of Property; Insurance     49  
6.6
  Inspection of Property; Books and Records; Discussions     50  
6.7
  Notices     50  
6.8
  Environmental Laws     51  
6.9
  Interest Rate Protection     51  
6.10
  Additional Collateral, etc.     51  
6.11
  Further Assurances     53  
6.12
  Collateral Covenants     53  
 
  SECTION 7. NEGATIVE COVENANTS        
7.1
  Financial Condition Covenants     55  
7.2
  Limitation on Indebtedness     56  
7.3
  Limitation on Liens     58  
7.4
  Limitation on Fundamental Changes     59  
7.5
  Limitation on Disposition of Property     59  
7.6
  Limitation on Restricted Payments     61  
7.7
  Limitation on Capital Expenditures     62  
7.8
  Limitation on Investments     62  
7.9
  Limitation on Optional Payments and Modifications of Debt Instruments, etc.     63  
7.10
  Limitation on Transactions with Affiliates     64  
7.11
  Limitation on Sales and Leasebacks     64  
7.12
  Limitation on Changes in Fiscal Periods     64  
7.13
  Limitation on Negative Pledge Clauses     64  
7.14
  Limitation on Restrictions on Subsidiary Distributions     65  
7.15
  Limitation on Lines of Business     65  
7.16
  Limitation on Hedge Agreements     66  
7.17
  Limitation on Activities of Holdings     66  
 
  SECTION 8. EVENTS OF DEFAULT        
 
  SECTION 9. THE AGENTS        
9.1
  Appointment     69  
9.2
  Delegation of Duties     69  

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        Page
9.3
  Exculpatory Provisions     69  
9.4
  Reliance by Agents     69  
9.5
  Notice of Default     70  
9.6
  Non-Reliance on Agents and Other Lenders     70  
9.7
  Indemnification     70  
9.8
  Agent in Its Individual Capacity     71  
9.9
  Successor Administrative Agent     71  
9.10
  Authorization to Release Liens and Guarantees     71  
9.11
  The Joint Lead Arrangers; the Syndication Agent     71  
 
  SECTION 10. MISCELLANEOUS        
10.1
  Amendments and Waivers     71  
10.2
  Notices     73  
10.3
  No Waiver; Cumulative Remedies     74  
10.4
  Survival of Representations and Warranties     74  
10.5
  Payment of Expenses     74  
10.6
  Successors and Assigns; Participations and Assignments     75  
10.7
  Adjustments; Set-off     78  
10.8
  Counterparts     79  
10.9
  Severability     79  
10.10
  Integration     79  
10.11
  GOVERNING LAW     79  
10.12
  Submission To Jurisdiction; Waivers     79  
10.13
  Acknowledgments     80  
10.14
  Confidentiality     80  
10.15
  Release of Collateral and Guarantee Obligations     80  
10.16
  Accounting Changes     81  
10.17
  Delivery of Lender Addenda     81  
10.18
  WAIVERS OF JURY TRIAL     81  
10.19
  USA Patriot Act Notice     81  

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ANNEXES:
           
 
A
  Pricing Grid        
 
SCHEDULES:
           
 
1.1
  Mortgaged Property        
4.4
  Consents, Authorizations, Filings and Notices        
4.6
  Certain Litigation        
4.15
  Subsidiaries        
4.19(a)-1
  UCC Filing Jurisdictions        
4.19(a)-2
  UCC Financing Statements to Remain on File        
4.19(a)-3
  UCC Financing Statements to be Terminated        
4.19(b)
  Mortgage Filing Jurisdictions        
7.2(d)
  Existing Indebtedness        
7.3(f)
  Existing Liens        
7.8
  Existing Investments        
7.13
  Existing Restrictions on Liens        
 
EXHIBITS:
           
 
A
  Form of Guarantee and Collateral Agreement        
B
  Form of Compliance Certificate        
C
  Form of Closing Certificate        
D
  Form of Mortgage        
E
  Form of Assignment and Acceptance        
F
  Form of Legal Opinion of Latham & Watkins LLP        
G-1
  Form of Tranche D Term Note        
G-2
  Form of Revolving Credit Note        
G-3
  Form of Swing Line Note        
H
  Form of Exemption Certificate        
I
  Form of Lender Addendum        
J
  Form of Borrowing Notice        


 

          AMENDED AND RESTATED CREDIT AGREEMENT, dated as of May 25, 2006, among UNITED COMPONENTS,INC., a Delaware corporation (the “Borrower”), the several banks and other financialinstitutions or entities from time to time parties to this Agreement (the “Lenders”),LEHMAN BROTHERS INC. and J.P. MORGAN SECURITIES INC., as joint advisors, joint lead arrangers andjoint bookrunners (in such capacity, the “Joint Lead Arrangers”), JPMORGAN CHASE BANK,N.A., as syndication agent (in such capacity, the “Syndication Agent”), ABN AMRO BANK N.V.,BANK OF AMERICA, N.A. and GENERAL ELECTRIC CAPITAL CORPORATION, as co-documentation agents (in suchcapacity, the “Co-Documentation Agents”), and LEHMAN COMMERCIAL PAPER INC., asadministrative agent (in such capacity, the “Administrative Agent”).
W I T N E S S E T H:
          WHEREAS, the Borrower is party to that certain Credit Agreement, dated as of June 20, 2003 (asamended, supplemented, modified or waived prior to the date hereof, the “Existing CreditAgreement”), among the Borrower, the lenders party thereto from time to time, certain agentsnamed therein and Lehman Commercial Paper Inc., as administrative agent;
          WHEREAS, it is the intent of the parties hereto that this Agreement not constitute a novationof the obligations and liabilities existing under the Existing Credit Agreement which remainoutstanding or evidence repayment of any of such obligations and liabilities and that thisAgreement amend and restate in its entirety the Existing Credit Agreement and re-evidence theobligations of the Borrower outstanding thereunder;
          NOW, THEREFORE, in consideration of the premises and the agreements hereinafter set forth, theparties hereto hereby agree that on the Closing Date (as defined below) the Existing CreditAgreement shall be, and hereby is, amended and restated in its entirety as follows:
SECTION 1. DEFINITIONS
          1.1 Defined Terms. As used in this Agreement, the terms listed in this Section 1.1shall have the respective meanings set forth in this Section 1.1.
          “Acquisition”: the acquisition by the Borrower of the Target pursuant to the terms ofthe Acquisition Agreement.
          “Acquisition Agreement”: the Stock Purchase Agreement, dated as of March 8, 2006 (asamended from time to time), among the Borrower, the Target and the sellers named therein.
          “Adjustment Date”: as defined in the Pricing Grid.
          “Administrative Agent”: as defined in the preamble hereto.
          “Advance Auto Parts Factoring Arrangement”: those certain transactions contemplatedin the SunTrust (Advance Auto) Factoring Agreement or any similar or successor agreement pursuantto which the Borrower or any of its Subsidiaries factors receivables due from Advance StoresCompany Incorporated or its successors or Affiliates.
          “Affiliate”: as to any Person, any other Person that, directly or indirectly, is incontrol of, is controlled by, or is under common control with, such Person. For purposes of thisdefinition, “control”of a Person means the power, directly or indirectly, either to (a) vote 20% or more of thesecurities having ordinary voting power for the election of directors (or persons performingsimilar functions) of such

 

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Person or (b) direct or cause the direction of the management andpolicies of such Person, whether by contract or otherwise.
          “Agents”: the collective reference to the Syndication Agent, the Co-DocumentationAgents and the Administrative Agent.
          “Aggregate Exposure”: with respect to any Lender at any time, an amount equal to (a)until the Closing Date, the aggregate amount of such Lender’s Commitments and Tranche C Term Loansoutstanding at such time and (b) thereafter, the sum of (i) the aggregate then unpaid principalamount of such Lender’s Tranche D Term Loans and (ii) the amount of such Lender’s Revolving CreditCommitment then in effect or, if the Revolving Credit Commitments have been terminated, the amountof such Lender’s Revolving Extensions of Credit then outstanding.
          “Aggregate Exposure Percentage”: with respect to any Lender at any time, the ratio(expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the sum of theAggregate Exposures of all Lenders at such time.
          “Agreement”: this Amended and Restated Credit Agreement, as amended, supplemented orotherwise modified from time to time.
          “Applicable Margin”: for each Type of Loan under each Facility, (a) with respect tothe Revolving Credit Facility (including Swing Line Loans), the rate per annum set forth on thePricing Grid and (b) with respect to the Tranche D Term Loan Facility, 1.25% for Base Rate Loansand 2.25% for Eurodollar Loans; provided that, if on the date on which financial statementsare delivered to the Lenders pursuant to Section 6.1(b) at the end of the fiscal quarter endingSeptember 30, 2006, or any other Adjustment Date thereafter, the Consolidated Leverage Ratio of theBorrower does not exceed 3.85:1.00, the Applicable Margin with respect to the Tranche D Term LoanFacility shall be 1.00% for Base Rate Loans and 2.00% for Eurodollar Loans.
          “Application”: an application, in such form as the relevant Issuing Lender mayspecify from time to time, requesting such Issuing Lender to issue a Letter of Credit.
          “Asset Sale”: any Disposition of Property or series of related Dispositions ofProperty which yields Net Cash Proceeds to the Borrower or any of its Subsidiaries in excess of$5,000,000, excluding (x) any such Disposition permitted by clause (a), (b), (c), (d), (g), (h),(i), (j), (k) (except to the extent the aggregate Net Cash Proceeds of such Disposition and allother Dispositions made pursuant to such clause (k) since the date of this Agreement exceed$20,000,000), (l), (m) or (n) of Section 7.5 and (y) any Recovery Event.
          “Assignee”: as defined in Section 10.6(c).
          “Assignment and Acceptance”: an Assignment and Acceptance substantially in the formof Exhibit E.
          “Assignor”: as defined in Section 10.6(c).
          “AutoZone Factoring Arrangement”: those certain transactions contemplated in theSunTrust (AutoZone) Factoring Agreement or any similar or successor agreement pursuant to which theBorrower or any of its Subsidiaries factors receivables due from Autozone, Inc. or itssuccessors or Affiliates.


 

3

          “Available Revolving Credit Commitment”: with respect to any Revolving Credit Lenderat any time, an amount equal to the excess, if any, of (a) such Lender’s Revolving CreditCommitment then in effect over (b) such Lender’s Revolving Extensions of Credit thenoutstanding; provided, that in calculating any Lender’s Revolving Extensions of Credit forthe purpose of determining such Lender’s Available Revolving Credit Commitment pursuant to Section2.9(a), the aggregate principal amount of Swing Line Loans then outstanding shall be deemed to bezero.
          “Base Rate”: for any day, a rate per annum (rounded upwards, if necessary, to thenext 1/100 of 1%) equal to the greater of (a) the Prime Rate in effect on such day and (b) theFederal Funds Effective Rate in effect on such day plus 1/2 of 1%. For purposes hereof: “PrimeRate” shall mean the prime lending rate as set forth on the British Banking AssociationTelerate Page 5 (or such other comparable page as may, in the reasonable opinion of theAdministrative Agent, replace such page for the purpose of displaying such rate), as in effect fromtime to time. Any change in the Base Rate due to a change in the Prime Rate or the Federal FundsEffective Rate shall be effective as of the opening of business on the effective day of such changein the Prime Rate or the Federal Funds Effective Rate, respectively.
          “Base Rate Loans”: Loans for which the applicable rate of interest is based upon theBase Rate.
          “BB&T Factoring Agreement”: that certain Supplier Agreement BB&T Factors DraftProgram, effective November 1, 2004, by and between ASC Industries, Inc. and BB&T FactorsCorporation.
          “Benefitted Lender”: as defined in Section 10.7.
          “Board”: the Board of Governors of the Federal Reserve System of the United States(or any successor).
          “Borrower”: as defined in the preamble hereto.
          “Borrowing Date”: any Business Day specified by the Borrower as a date on which theBorrower requests the relevant Lenders to make Loans hereunder.
          “Borrowing Notice”: with respect to any request for borrowing of Loans hereunder, anotice from the Borrower, substantially in the form of, and containing the information prescribedby, Exhibit J, delivered to the Administrative Agent.
          “Business Day”: (a) for all purposes other than as covered by clause (b) below, a dayother than a Saturday, Sunday or other day on which commercial banks in New York City areauthorized or required by law to close and (b) with respect to all notices and determinations inconnection with, and payments of principal and interest on, Eurodollar Loans, any day which is aBusiness Day described in clause (a) and which is also a day for trading by and between banks inDollar deposits in the interbank eurodollar market.
          “Capital Expenditures”: for any period, with respect to any Person, the aggregate ofall cash expenditures by such Person for the acquisition or leasing (pursuant to a capital lease,but excluding any amount representing capitalized interest) of fixed or capital assets or additionsto equipment(including replacements, capitalized repairs and improvements during such period) which arerequired to be capitalized under GAAP on a balance sheet of such Person; provided thatCapital Expenditures shall in any event (a) exclude the purchase price in connection with theacquisition of any Person or all or


 

4

substantially all of the assets, or a division, of any Person,including, without limitation, the Acquisition, and (b) exclude amounts expended with the proceedsof any Recovery Event.
          “Capital Lease”: any lease of (or other arrangement conveying the right to use) realor personal property, or a combination thereof, which obligations are required to be classified andaccounted for as capital leases on a balance sheet of such Person under GAAP.
          “Capital Lease Obligations”: with respect to any Person, the obligations of suchPerson to pay rent or other amounts under any Capital Lease; and, for the purposes of thisAgreement, the amount of such obligations at any time shall be the capitalized amount thereof atsuch time determined in accordance with GAAP.
          “Capital Stock”: any and all shares, interests, participations or other equivalents(however designated) of capital stock of a corporation, any and all equivalent ownership interestsin a Person (other than a corporation) and any and all warrants, rights or options to purchase anyof the foregoing.
          “CarQuest Factoring Arrangement”: those certain transactions contemplated in the BB&TFactoring Agreement or any similar or successor agreement pursuant to which the Borrower or any ofits Subsidiaries factors receivables due from General Parts, Inc. or its successors or Affiliates.
          “Cash Equivalents”: (a) marketable direct obligations issued by, or unconditionallyguaranteed by, the United States government or issued by any agency thereof and backed by the fullfaith and credit of the United States, in each case maturing within one year from the date ofacquisition; (b) certificates of deposit, time deposits, eurodollar time deposits or overnight bankdeposits having maturities of one year or less from the date of acquisition issued by any Lender orby any commercial bank organized under the laws of the United States of America or any statethereof having combined capital and surplus of not less than $500,000,000; (c) commercial paper ofan issuer rated at least A-2 by Standard & Poor’s Ratings Services (“S&P”) or P-2 byMoody’s Investors Service, Inc. (“Moody’s”), or carrying an equivalent rating by anationally recognized rating agency, and maturing within one year from the date of acquisition; (d)repurchase obligations of any Lender or of any commercial bank satisfying the requirements ofclause (b) of this definition, having a term of not more than 30 days with respect to securitiesissued or fully guaranteed or insured by the United States government; (e) securities withmaturities of one year or less from the date of acquisition issued or fully guaranteed by anystate, commonwealth or territory of the United States, by any political subdivision or taxingauthority of any such state, commonwealth or territory or by any foreign government, the securitiesof which state, commonwealth, territory, political subdivision, taxing authority or foreigngovernment (as the case may be) are rated at least A by S&P or A by Moody’s; (f) securities withmaturities of six months or less from the date of acquisition backed by standby letters of creditissued by any Lender or any commercial bank satisfying the requirements of clause (b) of thisdefinition; and (g) shares of money market mutual or similar funds which invest exclusively inassets satisfying the requirements of clauses (a) through (f) of this definition.
          “Change of Control”: the occurrence of any of the following events: (a) thePermitted Investors shall cease to own directly or indirectly (i) prior to a Qualified PublicOffering, at least 51% of the common voting stock of the Borrower and (ii) on and after a QualifiedPublic Offering, at least 30% of the common voting stock of Borrower or such higher percentage thatexceeds the highest percentage of common voting stock owned by any other “person” or “group” (assuch terms are used in Sections 13(d)and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)); or (b) aSpecified Change of Control.


 

5

          “Closing Date”: the date on which all of the conditions precedent set forth inSection 5.1 shall have been satisfied or waived and the Tranche D Term Loans have been funded,which date is May 25, 2006.
          “Code”: the Internal Revenue Code of 1986, as amended from time to time.
          “Co-Documentation Agents”: as defined in the preamble hereto.
          “Collateral”: all Property of the Loan Parties, now owned or hereafter acquired, uponwhich a Lien is purported to be created by any Security Document.
          “Commitment”: with respect to any Lender, each of the Tranche D Term Loan Commitmentand the Revolving Credit Commitment of such Lender.
          “Commitment Fee Rate”: as determined pursuant to the Pricing Grid.
          “Commonly Controlled Entity”: an entity, whether or not incorporated, that is undercommon control with the Borrower within the meaning of Section 4001 of ERISA or is part of a groupthat includes the Borrower and that is treated as a single employer under Section 414 of the Code.
          “Compliance Certificate”: a certificate duly executed by a Responsible Officer,substantially in the form of Exhibit B.
          “Consolidated Current Assets”: of any Person at any date, all amounts (other thancash and Cash Equivalents) that would, in conformity with GAAP, be set forth opposite the caption“total current assets” (or any like caption) on a consolidated balance sheet of such Person and itsSubsidiaries at such date; provided, that with respect to each Subsidiary that is not aWholly-Owned Subsidiary, the amount of the total current assets of such Subsidiary that shall becounted for purposes of the Consolidated Current Assets calculation shall equal the product of (x)the Borrower’s direct and/or indirect percentage ownership of such Subsidiary and (y) the aggregateamount of the total current assets of such Subsidiary as at such date, determined in accordancewith GAAP.
          “Consolidated Current Liabilities”: of any Person at any date, all amounts thatwould, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (orany like caption) on a consolidated balance sheet of such Person and its Subsidiaries at such date,but excluding, with respect to the Borrower, (a) the current portion of any Funded Debt of theBorrower and its Subsidiaries and (b), without duplication, all Indebtedness consisting ofRevolving Credit Loans or Swing Line Loans, to the extent otherwise included therein;provided, that with respect to each Subsidiary that is not a Wholly-Owned Subsidiary, theamount of the total current liabilities of such Subsidiary that shall be counted for purposes ofthe Consolidated Current Liabilities calculation shall equal the product of (x) the Borrower’sdirect and/or indirect percentage ownership of such Subsidiary and (y) the aggregate amount of thetotal current liabilities of such Subsidiary as at such date, determined in accordance with GAAP.
          “Consolidated EBITDA”: of any Person for any period, Consolidated Net Income of suchPerson and its Subsidiaries for such period plus, without duplication and to the extentreflected as a charge in the statement of such Consolidated Net Income for such period, the sum of(a) expenses for taxes based on income, (b) total interest expense of such Person and itsSubsidiaries, amortization orwriteoff of debt discount and debt issuance costs and commissions, discounts and other feesand charges associated with letters of credit, bankers’ acceptance financing or Indebtedness, (c)depreciation and amortization expense, (d) amortization of intangibles (including, but not limitedto, goodwill) and


 

6

organization costs, (e) any extraordinary, unusual or non-recurring expenses orlosses (including, whether or not otherwise includable as a separate item in the statement of suchConsolidated Net Income for such period, losses on sales of assets outside of the ordinary courseof business), (f) any other non-cash charges, (g) payments under the Management Agreement, (h) feesand expenses incurred in connection with the closing of the Acquisition, the Senior SubordinatedNotes and the Loan Documents, (i) costs and expenses incurred in connection with Customer Ramp-Upsand (j) pro forma cost synergies projected to occur during such period by the Borrower as a resultof the Acquisition so long as (i) such synergies are factually supportable and are certified by theChief Financial Officer with summary supporting calculations and (ii) the aggregate amount of suchsynergies during the term of the Agreement shall not exceed $2,100,000 and minus, to theextent included in the statement of such Consolidated Net Income for such period, the sum of (a)interest income (except to the extent deducted in determining Consolidated Interest Expense), (b)any extraordinary, unusual or non-recurring income or gains (including, whether or not otherwiseincludable as a separate item in the statement of such Consolidated Net Income for such period,gains on the sales of assets outside of the ordinary course of business) and (c) any other non-cashincome, all as determined on a consolidated basis; provided that Consolidated EBITDA shallbe computed without taking into account results attributable to the initial implementation of thePOS Program. For purposes of determining compliance with the financial covenants set forth inSection 7.1, any equity contribution made to the Borrower by Holdings after the Original ClosingDate and prior to the day that is 10 days after the day on which financial statements are requiredto be delivered for a fiscal quarter will, at the request of the Borrower, be deemed to increase,dollar for dollar, Consolidated EBITDA for such fiscal quarter for the purposes of determiningcompliance with such financial covenants at the end of such fiscal quarter and applicablesubsequent periods (any such equity contribution so included in the calculation of ConsolidatedEBITDA, a “Specified Equity Contribution”), provided that (a) Specified EquityContributions may be made in no more than two fiscal quarters (which may be consecutive) in anamount not to exceed $10,000,000 for either such fiscal quarter and (b) the amount of any SpecifiedEquity Contribution shall be no greater than the amount required to cause the Borrower to be incompliance with the financial covenants set forth in Section 7.1. Notwithstanding the foregoing,for the fiscal quarters of the Borrower ended September 30, 2005, December 31, 2005 and March 31,2006, Consolidated EBITDA for each such fiscal quarter shall be deemed to be the following amounts:
         
Fiscal Quarter Ending   Consolidated EBITDA
September 30, 2005
  34,571,000  
December 31, 2005
  32,019,000  
March 31, 2006
  34,156,000  
          “Consolidated Interest Coverage Ratio”: for any period, the ratio of (a) ConsolidatedEBITDA of the Borrower and its Subsidiaries for such period to (b) Consolidated Interest Expense ofthe Borrower and its Subsidiaries for such period.
          “Consolidated Interest Expense”: of any Person for any period, the difference of (a)total interest expense due and payable in cash in such period (including capitalized interest andinterest attributable to Capital Lease Obligations) or (without duplication), with respect to theSenior Subordinated Notes, total interest expense accrued during such period, of such Person andits Subsidiaries for such period with respect to all outstanding Indebtedness of such Person andits Subsidiaries(including, without limitation, all commissions, discounts and other fees and charges owed bysuch Person with respect to letters of credit and bankers’ acceptance financing and, withoutduplication, net costs of such Person due and payable in cash in such period under Hedge Agreementsin respect of

 

7

interest rates to the extent such net costs are allocable to such period inaccordance with GAAP), but excluding, however, amortization of deferred financing costs to theextent otherwise included in Consolidated Interest Expense, minus (b) interest incomereceived by such Person in cash for such period (including, without limitation, net cash incomeunder Hedge Agreements in respect of interest rates to the extent such net income is allocable tosuch period in accordance with GAAP); provided, that with respect to each Subsidiary thatis not a Wholly-Owned Subsidiary, (i) the amount of interest expense of such Subsidiary that shallbe counted for purposes of the Consolidated Interest Expense calculation shall equal the product of(x) the Borrower’s direct and/or indirect percentage ownership of such Subsidiary and (y) theaggregate amount of interest expense of such Subsidiary as at such date, determined in accordancewith GAAP, and (ii) the amount of interest income of such Subsidiary that shall be counted forpurposes of the Consolidated Interest Expense calculation shall equal the product of (x) theBorrower’s direct and/or indirect percentage ownership of such Subsidiary and (y) the aggregateamount of interest income of such Subsidiary as at such date, determined in accordance with GAAP.
          “Consolidated Leverage Ratio”: as at the last day of any period of four consecutivefiscal quarters of the Borrower, the ratio of (a) Consolidated Total Debt on such day to (b)Consolidated EBITDA of the Borrower and its Subsidiaries for such period; provided that forpurposes of calculating Consolidated EBITDA of the Borrower and its Subsidiaries for any period,(i) notwithstanding clause (a) of the definition of “Consolidated Net Income”, the ConsolidatedEBITDA of any Person acquired by the Borrower or its Subsidiaries during such period shall beincluded on a pro forma basis for such period (assuming the consummation of such acquisition andthe incurrence or assumption of any Indebtedness in connection therewith occurred on the first dayof such period) and (ii) the Consolidated EBITDA of any Person Disposed of by the Borrower or itsSubsidiaries during such period shall be excluded for such period (assuming the consummation ofsuch Disposition and the repayment of any Indebtedness in connection therewith occurred on thefirst day of such period).
          “Consolidated Net Income”: of any Person for any period, the consolidated net income(or loss) of such Person and its Subsidiaries for such period, determined on a consolidated basisin accordance with GAAP; provided, that in calculating Consolidated Net Income of theBorrower and its consolidated Subsidiaries for any period, there shall be excluded (a) the income(or deficit) of any Person accrued prior to the date it becomes a Subsidiary of the Borrower or ismerged into or consolidated with the Borrower or any of its Subsidiaries, (b) the income (ordeficit) of any Person (other than a Subsidiary of the Borrower) in which the Borrower or any ofits Subsidiaries has an ownership interest, except to the extent that any such income is actuallyreceived by the Borrower or such Subsidiary in the form of dividends or similar distributions and(c) the undistributed earnings of any Subsidiary of the Borrower other than any SubsidiaryGuarantor to the extent that the declaration or payment of dividends or similar distributions bysuch Subsidiary is not at the time permitted by the terms of any Contractual Obligation (other thanunder any Loan Document) or Requirement of Law applicable to such Subsidiary or any OrganizationalDocument of such Subsidiary.
          “Consolidated Senior Debt”: all Consolidated Total Debt, including any Indebtednessassociated with the sale of receivables as permitted pursuant to Section 7.5(m), other than theSenior Subordinated Notes.
          “Consolidated Senior Leverage Ratio”: as of any day, the ratio of (a) the excess, ifany, of (i) Consolidated Senior Debt on such day over (ii) the aggregate amount of cash and CashEquivalents held by the Borrower and its Subsidiaries on such day to (b) Consolidated EBITDA of theBorrower andits Subsidiaries for the period of four consecutive fiscal quarters most recently ended priorto such day for which the Borrower shall have delivered financial statements to the Lenderspursuant to Section 6.1.

 

8

          “Consolidated Total Debt”: at any date, the aggregate principal amount of all FundedDebt of the Borrower and its Subsidiaries at such date, determined on a consolidated basis inaccordance with GAAP; provided, that with respect to each Subsidiary that is not aWholly-Owned Subsidiary, the amount of Funded Debt of such Subsidiary that shall be counted forpurposes of the Consolidated Total Debt calculation shall equal the product of (x) the Borrower’sdirect and/or indirect percentage ownership of such Subsidiary and (y) the aggregate principalamount of Funded Debt of such Subsidiary as at such date, determined in accordance with GAAP.
          “Consolidated Working Capital”: at any date, the difference of (a) ConsolidatedCurrent Assets of the Borrower on such date less (b) Consolidated Current Liabilities of theBorrower on such date.
          “Contractual Obligation”: as to any Person, any provision of any security issued bysuch Person or of any agreement, instrument or other undertaking to which such Person is a party orby which it or any of its Property is bound.
          “Control Investment Affiliate”: as to any Person, any other Person that (i) (a)directly or indirectly, is in control of, is controlled by, or is under common control with, suchPerson and (b) is organized by such Person primarily for the purpose of making or managing equityor debt investments in any other Person or (ii) is managed or advised by such Person or suchPerson’s Subsidiaries. For purposes of this definition, “control” of a Person means the power,directly or indirectly, to direct or cause the direction of the management and policies of suchPerson, whether by contract or otherwise.
          “Customer Ramp-Ups”: start-up costs incurred in connection with change-over inventoryacquisitions, provided that (i) such charges and expenses are paid or otherwise accounted forwithin six months of the date the relevant change-over begins, (ii) the aggregate amount of suchexpenses shall not exceed $5,000,000 in any fiscal year of the Borrower and (iii) the aggregateamount of such expenses shall not exceed $20,000,000 during the term of this Agreement.
          “Default”: any of the events specified in Section 8, whether or not any requirementfor the giving of notice, the lapse of time, or both, has been satisfied.
          “Derivatives Counterparty”: as defined in Section 7.6.
          “Disposition”: with respect to any Property, any sale, sale and leaseback,assignment, conveyance, transfer or other disposition thereof; and the terms “Dispose” and“Disposed of” shall have correlative meanings.
          “Dollars” and “$”: lawful currency of the United States of America.
          “Domestic Subsidiary”: any Subsidiary of the Borrower that (i) is organized under thelaws of any jurisdiction within the United States of America and (ii) is not an ExcludedSubsidiary.
          “ECF Percentage”: with respect to any fiscal year of the Borrower, 50%;provided, that, with respect to any fiscal year of the Borrower, the ECF Percentage shallbe 25% if the Consolidated Leverage Ratio as of the last day of such fiscal year is not greaterthan 3.25 to 1.0; provided, further, that, with respect to any fiscal year of theBorrower, the ECF Percentage shall be 0% if the Consolidated Leverage Ratio as of the last day ofsuch fiscal year is not greater than 2.50 to 1.0.
          “Environmental Laws”: any and all applicable laws, rules, orders, regulations,statutes, ordinances, codes, decrees, or other legally enforceable requirements (including, withoutlimitation,

 

9

common law) of any international authority, foreign government, the United States, orany state, local, municipal or other governmental authority, regulating, relating to or imposingliability or standards of conduct concerning protection of the environment or of human health, oremployee health and safety (in each case to the extent relating to exposure to Materials ofEnvironmental Concern), as has been, is now, or may at any time hereafter be, in effect.
          “Environmental Permits”: any and all permits, licenses, approvals, registrations,exemptions and other authorizations required under any Environmental Law.
          “ERISA”: the Employee Retirement Income Security Act of 1974, as amended from time totime.
          “Eurocurrency Reserve Requirements”: for any day, the aggregate (without duplication)of the maximum rates (expressed as a decimal fraction) of reserve requirements in effect on suchday (including, without limitation, basic, supplemental, marginal and emergency reserves) under anyregulations of the Board or other Governmental Authority having jurisdiction with respect theretodealing with reserve requirements prescribed for eurocurrency funding (currently referred to as“Eurocurrency Liabilities” in Regulation D of the Board) maintained by a member bank of the FederalReserve System.
          “Eurodollar Base Rate”: with respect to each day during each Interest Period, therate per annum determined on the basis of the rate for deposits in Dollars for a period equal tosuch Interest Period commencing on the first day of such Interest Period appearing on Page 3750 ofthe Telerate screen as of 11:00 A.M., London time, two Business Days prior to the beginning of suchInterest Period. In the event that such rate does not appear on Page 3750 of the Telerate screen(or otherwise on such screen), the “Eurodollar Base Rate” for purposes of this definitionshall be determined by reference to such other comparable publicly available service for displayingeurodollar rates as may be selected by the Administrative Agent.
          “Eurodollar Loans”: Loans for which the applicable rate of interest is based upon theEurodollar Rate.
          “Eurodollar Rate”: with respect to each day during each Interest Period, a rate perannum determined for such day in accordance with the following formula (rounded upward to thenearest 1/100th of 1%):
Eurodollar Base Rate

 


1.00 — Eurocurrency Reserve Requirements
          “Eurodollar Tranche”: the collective reference to Eurodollar Loans the then currentInterest Periods with respect to all of which begin on the same date and end on the same later date(whether or not such Loans shall originally have been made on the same day).
          “Event of Default”: any of the events specified in Section 8, provided thatany requirement for the giving of notice, the lapse of time, or both, has been satisfied.
          “Excess Cash Flow”: for any fiscal year of the Borrower, the difference, if any, of(a) the sum, without duplication, of (i) Consolidated Net Income for such fiscal year, (ii) theamount of all non-cash charges (including depreciation and amortization) deducted in arriving atsuch Consolidated Net Income, (iii) the amount of the decrease, if any, in Consolidated WorkingCapital for such fiscal year, (iv)the aggregate net amount of non-cash loss on the Disposition of Property by the Borrower andits Subsidiaries during such fiscal year (other than sales of inventory in the ordinary course ofbusiness), to

 

10

the extent deducted in arriving at such Consolidated Net Income and (v) the netincrease during such fiscal year (if any) in deferred tax accounts of the Borrower minus(b) the sum, without duplication, of (i) the amount of all non-cash credits included in arriving atsuch Consolidated Net Income, (ii) the aggregate amount actually paid by the Borrower and itsSubsidiaries in cash during such fiscal year on account of Capital Expenditures (minus theprincipal amount of Indebtedness incurred in connection with such expenditures and minusthe amount of any such expenditures financed with the proceeds of any Reinvestment DeferredAmount), (iii) the aggregate amount of all prepayments of Revolving Credit Loans and Swing LineLoans during such fiscal year to the extent accompanying permanent optional reductions of theRevolving Credit Commitments, all optional prepayments of the Tranche D Term Loans during suchfiscal year and, to the extent included in computing Consolidated Net Income for such period, allmandatory prepayments of the Tranche D Term Loans during such year pursuant to Section 2.12(b) andattributable to the cash gain on the relevant Asset Sale, (iv) the aggregate amount of allregularly scheduled principal payments of Funded Debt (including, without limitation, the Tranche DTerm Loans) of the Borrower and its Subsidiaries made during such fiscal year (other than inrespect of any revolving credit facility to the extent there is not an equivalent permanentreduction in commitments thereunder), (v) the amount of the increase, if any, in ConsolidatedWorking Capital for such fiscal year, (vi) the aggregate net amount of non-cash gain on theDisposition of Property by the Borrower and its Subsidiaries during such fiscal year (other thansales of inventory in the ordinary course of business), to the extent included in arriving at suchConsolidated Net Income, (vii) the net decrease during such fiscal year (if any) in deferred taxaccounts of the Borrower, (viii) fees and expenses incurred in connection with the closing of theAcquisition, the Senior Subordinated Notes or the Loan Documents, (ix) purchase price adjustmentspaid in connection with the Acquisition or any Permitted Acquisition, (x) the net amount ofInvestments permitted to be made pursuant to Section 7.8, (xi) the aggregate amount of cashpayments made during such period in respect of non-cash charges and (xii) the aggregate amount ofrepurchases of Senior Subordinated Notes during such fiscal year permitted pursuant to Section7.9(a).
          “Excess Cash Flow Application Date”: as defined in Section 2.12(c).
          “Excluded Subsidiaries”: (a) any Foreign Subsidiary in respect of which either (i)the pledge of all of the Capital Stock of such Subsidiary as Collateral or (ii) the guaranteeing bysuch Subsidiary of the Obligations, would, in the good faith judgment of the Borrower (as of theOriginal Closing Date or, if later, as of the date of acquisition thereof directly or indirectly bythe Borrower), result in adverse tax consequences to the Borrower, (b) any Subsidiary of aSubsidiary described in the foregoing clause (a) and (c) any Joint Venture.
          “Existing Credit Agreement”: as defined in the recitals hereto.
          “Facility”: each of (a) the Tranche D Term Loan Commitments and the Tranche D TermLoans made thereunder (the “Tranche D Term Loan Facility”) and (b) the Revolving CreditCommitments and the extensions of credit made thereunder (the “Revolving Credit Facility”).
          “Federal Funds Effective Rate”: for any day, the weighted average of the rates onovernight federal funds transactions with members of the Federal Reserve System arranged by federalfunds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of NewYork, or, if such rate is not so published for any day which is a Business Day, the average of thequotations for the day of such transactions received by the Administrative Agent from three federalfunds brokers of recognized standing selected by it.
          “Foreign Cash Equivalents”: (a) certificates of deposit or bankers acceptances of, andbank deposits with, any bank organized under the laws of any country that is a member of theEuropean Economic Community, whose short-term commercial paper rating from S&P is at least A-1 orthe

 

11

equivalent thereof or from Moody’s is at least P-1 or the equivalent thereof, in each case withmaturities of not more than six months from the date of acquisition, (b) commercial paper maturingnot more than one year from the date of creation thereof and, at the time of acquisition, havingthe highest rating obtainable from either S&P’s or Moody’s and (c) shares of any money marketmutual fund that has its assets invested continuously in the types of investments referred to inclauses (a) and (b) above.
          “Foreign Subsidiary”: any Subsidiary of the Borrower that is not a DomesticSubsidiary.
          “FQ1”, “FQ2”, “FQ3”, and “FQ4”: when used with a numericalyear designation, means the first, second, third or fourth fiscal quarters, respectively, of suchfiscal year of the Borrower. (e.g., FQ4 2006 means the fourth fiscal quarter of the Borrower’s 2006fiscal year, which ends December 31, 2006).
          “Funded Debt”: with respect to any Person, all Indebtedness of such Person of thetypes described in clauses (a), (c) and (e) of the definition of “Indebtedness” in this Section.
          “Funding Office”: the office specified from time to time by the Administrative Agentas its funding office by notice to the Borrower and the Lenders.
          “GAAP”: generally accepted accounting principles in the United States of America asin effect from time to time.
          “Governmental Authority”: any nation or government, any state or other politicalsubdivision thereof and any other public entity exercising executive, legislative, judicial,regulatory or administrative functions of or pertaining to government.
          “Guarantee and Collateral Agreement”: the Guarantee and Collateral Agreement, datedas of June 20, 2003, executed and delivered by the Borrower, Holdings and each Subsidiary Guarantorand substantially in the form of Exhibit A, as the same may be amended, supplemented or otherwisemodified from time to time.
          “Guarantee Obligation”: as to any Person (the “guaranteeing person”), anyobligation of such Person guaranteeing or intended to guarantee any Indebtedness, leases, dividendsor other obligations (the “primary obligations”) of any other third Person (the“primary obligor”) in any manner, whether directly or indirectly, including, withoutlimitation, any obligation of the guaranteeing person, whether or not contingent, (i) to purchaseany such primary obligation or any Property constituting direct or indirect security therefor, (ii)to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) tomaintain working capital or equity capital of the primary obligor or otherwise to maintain the networth or solvency of the primary obligor, (iii) to purchase Property, securities or servicesprimarily for the purpose of assuring the owner of any such primary obligation of the ability ofthe primary obligor to make payment of such primary obligation or (iv) otherwise to assure or holdharmless the owner of any such primary obligation against loss in respect thereof;provided, however, that the term Guarantee Obligation shall not includeendorsements of instruments for deposit or collection in the ordinary course of business. Theamount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of(a) an amount equal to the stated or determinable amount of the primary obligation in respect ofwhich such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeingperson may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation,unless such primary obligation and the maximum amount for which suchguaranteeing person may be liable are not stated or determinable, in which case the amount ofsuch Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipatedliability in respect thereof as determined by the Borrower in good faith.

 

12

          “Hedge Agreements”: all interest rate or currency swaps, caps or collar agreements,foreign exchange agreements, commodity contracts or similar arrangements entered into by theBorrower or its Subsidiaries providing for protection against fluctuations in interest rates,currency exchange rates, commodity prices or the exchange of nominal interest obligations, eithergenerally or under specific contingencies.
          “Holdings”: UCI Acquisition Holdings, Inc., a Delaware corporation.
          “Indebtedness”: of any Person at any date, without duplication, (a) all indebtednessof such Person for borrowed money, (b) all obligations of such Person for the deferred purchaseprice of Property or services (other than trade payables, accrued expenses and deferredcompensation arrangements incurred in the ordinary course of such Person’s business and progressand advance payments received in the ordinary course of such Person’s business) which in accordancewith GAAP would be shown on the liability side of the balance sheet of such Person, (c) allobligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d)all indebtedness created or arising under any conditional sale or other title retention agreementwith respect to Property acquired by such Person (even though the rights and remedies of the selleror lender under such agreement in the event of default are limited to repossession or sale of suchProperty), (e) all Capital Lease Obligations of such Person, (f) all obligations of such Person,contingent or otherwise, as an account party or applicant under acceptance, letter of credit orsimilar facilities, (g) all Guarantee Obligations of such Person in respect of obligations of thekind referred to in clauses (a) through (f) above and (h) all obligations of the kind referred toin clauses (a) through (g) above secured by (or for which the holder of such obligation has anexisting right, contingent or otherwise, to be secured by) any Lien on Property (including, withoutlimitation, accounts and contract rights) owned by such Person, whether or not such Person hasassumed or become liable for the payment of such obligation (provided, that, if such Personhas not assumed or otherwise become liable in respect of such Indebtedness, such Indebtedness shallbe deemed to be in an amount equal to the lesser of the amount of such Indebtedness and the fairmarket value of the Property that is encumbered by such Lien as determined in good faith by suchPerson).
          “Indebtedness for Borrowed Money”: to the extent the following would be reflected ona consolidated balance sheet of the Borrower and its Subsidiaries prepared in accordance with GAAP,the principal amount of all Indebtedness of the Borrower and its Subsidiaries with respect to (i)borrowed money, evidenced by debt securities, debentures, acceptances, notes or other similarinstruments, (ii) obligations under Capital Leases, (iii) reimbursement obligations for letters ofcredit and financial guarantees (without duplication), (other than ordinary course of businesscontingent reimbursement obligations) or (iv) the deferred purchase price of property or services(except for accounts payable, deferred compensation arrangements and accrued expenses and receiptof progress and advance payments related to such purchase price, in each case arising in theordinary course of business).
          “Indemnified Liabilities”: as defined in Section 10.5.
          “Indemnitee”: as defined in Section 10.5.
          “Insolvency”: with respect to any Multiemployer Plan, the condition that such Plan isinsolvent within the meaning of Section 4245 of ERISA.
          “Insolvent”: pertaining to a condition of Insolvency.
          “Intellectual Property”: the collective reference to all rights, priorities andprivileges relating to intellectual property, whether arising under United States, multinational orforeign laws or otherwise, including, without limitation, copyrights, copyright licenses, patents,patent licenses,

 

13

trademarks, trademark licenses, technology, know-how and processes, and all rightsto sue at law or in equity for any infringement or other impairment thereof, including the right toreceive all proceeds and damages therefrom.
          “Interest Payment Date”: (a) as to any Base Rate Loan, the last day of each March,June, September and December to occur while such Loan is outstanding and the final maturity date ofsuch Loan, (b) as to any Eurodollar Loan having an Interest Period of three months or shorter, thelast day of such Interest Period, (c) as to any Eurodollar Loan having an Interest Period longerthan three months, each day that is three months, or a whole multiple thereof, after the first dayof such Interest Period and the last day of such Interest Period and (d) as to any Loan (other thanany Revolving Credit Loan that is a Base Rate Loan and any Swing Line Loan), the date of anyrepayment or prepayment made in respect thereof.
          “Interest Period”: as to any Eurodollar Loan, (a) initially, the period commencing onthe borrowing or conversion date, as the case may be, with respect to such Eurodollar Loan andending one, two, three or six or (if available to all Lenders under the relevant Facility) nine ortwelve months thereafter, as selected by the Borrower in its notice of borrowing or notice ofconversion, as the case may be, given with respect thereto; and (b) thereafter, each periodcommencing on the last day of the next preceding Interest Period applicable to such Eurodollar Loanand ending one, two, three or six or (if available to all Lenders under the relevant Facility) nineor twelve months thereafter, as selected by the Borrower by irrevocable notice to theAdministrative Agent not less than three Business Days prior to the last day of the then currentInterest Period with respect thereto; provided that, all of the foregoing provisionsrelating to Interest Periods are subject to the following:
     (1) if any Interest Period would otherwise end on a day that is not a Business Day,such Interest Period shall be extended to the next succeeding Business Day unless the resultof such extension would be to carry such Interest Period into another calendar month inwhich event such Interest Period shall end on the immediately preceding Business Day;
     (2) any Interest Period that would otherwise extend beyond the Revolving CreditTermination Date or beyond the date final payment is due on the Tranche D Term Loans, as thecase may be, shall end on the Revolving Credit Termination Date or such due date, asapplicable; and
     (3) any Interest Period that begins on the last Business Day of a calendar month (or ona day for which there is no numerically corresponding day in the calendar month at the endof such Interest Period) shall end on the last Business Day of the calendar month at the endof such Interest Period.
          “Investments”: as defined in Section 7.8.
          “Issuing Lender”: Bank of America, N.A., in its capacity as issuer of Letters ofCredit hereunder, and any other Revolving Credit Lender from time to time designated by theBorrower as an Issuing Lender with the consent of such Revolving Credit Lender and theAdministrative Agent (such consent of the Administrative Agent not to be unreasonably withheld ordelayed).
          “Joint Lead Arrangers”: as defined in the preamble hereto.
          “Joint Venture”: any entity in which the Borrower or one or more Subsidiaries holdequity interests representing at least 20%, but not more than 80%, of the total outstanding equityinterests of such entity.

 

14

          “L/C Commitment”: $25,000,000.
          “L/C Fee Payment Date”: the last day of each March, June, September and December(commencing with June 30, 2006) and the last day of the Revolving Credit Commitment Period.
          “L/C Obligations”: at any time, an amount equal to the sum of (a) the aggregate thenundrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amountof drawings under Letters of Credit that have not then been reimbursed by or on behalf of any LoanParty.
          “L/C Participants”: with respect to any Letter of Credit, the collective reference toall the Revolving Credit Lenders other than the Issuing Lender that issued such letter of Credit.
          “Lehman Entity”: any of Lehman Commercial Paper Inc. or any of its affiliates(including Syndicated Loan Funding Trust).
          “Lender Addendum”: (a) with respect to each initial Revolving Credit Lender, a LenderAddendum which was executed and delivered by such Lender on the Original Closing Date and (b) withrespect to each initial Tranche D Term Lender, a Lender Addendum, substantially in the form ofExhibit I, to be executed and delivered by such Lender on the Closing Date as provided in Section10.17.
          “Lenders”: as defined in the preamble hereto.
          “Letters of Credit”: as defined in Section 3.1(a).
          “Lien”: any mortgage, pledge, hypothecation, encumbrance, lien (statutory or other),or other security agreement of any kind or nature whatsoever (including, without limitation, anyconditional sale or other title retention agreement, and any lease in the nature thereof havingsubstantially the same effect as any of the foregoing).
          “Loan”: any loan made by any Lender pursuant to this Agreement.
          “Loan Documents”: this Agreement, the Security Documents, the Applications and theNotes.
          “Loan Parties”: the Borrower, Holdings and each Subsidiary Guarantor.
          “Majority Facility Lenders”: with respect to any Facility, the holders of more than50% of the aggregate unpaid principal amount of the Tranche D Term Loans or the Total RevolvingExtensions of Credit, as the case may be, outstanding under such Facility (or, in the case of theRevolving Credit Facility, prior to any termination of the Revolving Credit Commitments, theholders of more than 50% of the Total Revolving Credit Commitments).
          “Majority Revolving Credit Facility Lenders”: the Majority Facility Lenders inrespect of the Revolving Credit Facility.
          “Management Agreement”: the management agreement of the Borrower with the Sponsorand/or Affiliates of the Sponsor as in effect on the Original Closing Date or as modified from timeto time with the consent of the Administrative Agent.
          “Material Adverse Effect”: a material adverse effect on (a) on or prior to theClosing Date, the Acquisition, (b) the business, assets, property or financial condition of theBorrower and its

 

15

Subsidiaries taken as a whole or (c) the validity or enforceability of thisAgreement or any of the other Loan Documents or the rights or remedies of the Agents or the Lendershereunder or thereunder.
          “Materials of Environmental Concern”: any gasoline or petroleum (including crude oilor any fraction thereof) or petroleum products, polychlorinated biphenyls, urea-formaldehydeinsulation, asbestos, pollutants, contaminants, radioactivity, and any other substances or forcesof any kind, whether or not any such substance or force is defined as hazardous or toxic under anyEnvironmental Law, that is regulated pursuant to or could give rise to liability under anyEnvironmental Law.
          “Material Subsidiary”: any Subsidiary of Borrower that holds assets having a fairmarket value (as reasonably and in good faith determined by the Board of Directors of the Borrower)of $12,500,000 or more.
          “Maximum Investment Amount”: at any time, the sum of (a) $55,000,000 plus (b)the aggregate principal amount of Net Cash Proceeds received by the Borrower and its Subsidiariesfrom Dispositions of Non-Core Assets on or before such date.
          “Mortgaged Properties”: the real properties listed on Schedule 1.1, as to which theAdministrative Agent for the benefit of the Secured Parties shall be granted a Lien pursuant to oneor more Mortgages.
          “Mortgages”: each of the mortgages and deeds of trust made by any Loan Party in favorof, or for the benefit of, the Administrative Agent for the benefit of the Secured Parties,substantially in the form of Exhibit D (with such changes thereto as shall be advisable under thelaw of the jurisdiction in which such mortgage or deed of trust is to be recorded), as the same maybe amended, supplemented or otherwise modified from time to time.
          “Multiemployer Plan”: a Plan that is a multiemployer plan as defined in Section4001(a)(3) of ERISA.
          “Net Cash Proceeds”: (a) in connection with any Asset Sale or any Recovery Event, theproceeds thereof in the form of cash and Cash Equivalents (including any such proceeds received byway of deferred payment of principal pursuant to a note or installment receivable or purchase priceadjustment receivable or otherwise, but only as and when received) of such Asset Sale or RecoveryEvent, net of attorneys’ fees, accountants’ fees, investment banking fees, amounts required to beapplied to the repayment of Indebtedness secured by a Lien expressly permitted hereunder on anyasset which is the subject of such Asset Sale or Recovery Event (other than any Lien pursuant to aSecurity Document) and other customary fees and expenses actually incurred in connection therewithand net of taxes paid or reasonably estimated to be payable as a result thereof (after taking intoaccount any available tax credits or deductions and any tax sharing arrangements) and (b) inconnection with any issuance or sale of equity securities or debt securities or instruments or theincurrence of loans, the cash proceeds received from such issuance or incurrence, net of attorneys’fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and othercustomary fees and expenses actually incurred in connection therewith.
          “Non-Core Assets”: one or more business units or segments of the Borrower or itsSubsidiaries existing on the date hereof that in the aggregate have Consolidated EBITDA for themost recent fiscal year completed prior to the Closing Date of less than $20,000,000.
          “Non-Excluded Taxes”: as defined in Section 2.20(a).

 

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          “Non-U.S. Lender”: as defined in Section 2.20(d).
          “Note”: any promissory note evidencing any Loan.
          “Obligations”: the unpaid principal of and interest on (including, withoutlimitation, interest accruing after the maturity of the Loans and Reimbursement Obligations andinterest accruing after the filing of any petition in bankruptcy, or the commencement of anyinsolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim forpost-filing or post-petition interest is allowed in such proceeding) the Loans, the ReimbursementObligations and all other obligations and liabilities of the Borrower to the Administrative Agentor to any Lender or any Qualified Counterparty, whether direct or indirect, absolute or contingent,due or to become due, or now existing or hereafter incurred, in each case which may arise under,out of, or in connection with, this Agreement, any other Loan Document, the Letters of Credit, anySpecified Hedge Agreement or any other document made, delivered or given in connection herewith ortherewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities,costs, expenses (including, without limitation, all fees, charges and disbursements of counsel tothe Administrative Agent or to any Lender that are required to be paid by the Borrower pursuanthereto) or otherwise; provided, that (i) obligations of the Borrower or any Subsidiaryunder any Specified Hedge Agreement shall be secured and guaranteed pursuant to the SecurityDocuments only to the extent that, and for so long as, the other Obligations are so secured andguaranteed and (ii) any release of Collateral or Guarantors effected in the manner permitted bythis Agreement shall not require the consent of holders of obligations under Specified HedgeAgreements.
          “Organizational Document”: with respect to any Person, the Certificate ofIncorporation and By-Laws or other organizational or governing documents of such Person.
          “Original Acquisition Agreement”: the Purchase Agreement, dated as of April 25, 2003,among UIS, Inc., UIS Industries, Inc. and the Borrower.
          “Original Closing Date”: June 20, 2003.
          “Other Taxes”: any and all present or future stamp or documentary taxes or any otherexcise or property taxes, charges or similar levies arising from any payment made hereunder or fromthe execution, delivery or enforcement of, or otherwise with respect to, this Agreement or anyother Loan Document.
          “Participant”: as defined in Section 10.6(b).
          “Patriot Act”: as defined in Section 10.19.
          “Payment Office”: the office specified from time to time by the Administrative Agentas its payment office by notice to the Borrower and the Lenders.
          “PBGC”: the Pension Benefit Guaranty Corporation established pursuant to Subtitle Aof Title IV of ERISA (or any successor).
          “Permitted Acquisition”: any acquisition by the Borrower or any of its Subsidiariesof all or substantially all of the Capital Stock of (or if the remainder of such Capital Stock willbe held by management, more than 80% of the Capital Stock of), or all or substantially all of theassets constituting a business unit of, any other Person so long as, with respect to any suchacquisition, the following conditions are satisfied:

 

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     (a) no Default or Event of Default shall have occurred and be continuing or wouldresult from such acquisition;
     (b) after giving effect to such acquisition, the Borrower shall be in pro formacompliance with the financial covenants set forth in Section 7.1;
     (c) the target of such acquisition shall be in the same line of business as theBorrower and its Subsidiaries or one reasonably related thereto or a reasonable extensionthereof;
     (d) in the case of the acquisition of the Common Stock of another Person, suchacquisition shall not be commenced by the Borrower or its Subsidiaries unless the board ofdirectors of the target of such acquisition shall have consented thereto; and
     (e) concurrently with the consummation of such acquisition the Borrower shall havecomplied with the requirements of Section 6.10 with respect thereto.
          “Permitted Investors”: the collective reference to the Sponsor, its ControlInvestment Affiliates and members of management of Holdings, the Borrower or any Subsidiary.
          “Permitted Foreign Investment Amount”: at the time of any determination thereof,(without duplication) (a) the sum of (i) the aggregate fair market value (as determined by theBorrower in good faith) of all assets Disposed of by Loan Parties to Excluded Subsidiaries afterthe Closing Date (net of the amount of any consideration received therefor), and (ii) the aggregateamount of Investments made by Loan Parties in Excluded Subsidiaries after the Closing Date (net ofthe amount of returns on such Investments, or if such Investment is a loan or a guarantee, less anycash payments actually received in reimbursement thereof); minus (b) (without duplicationof any returns referred to in clause (a)(ii) above) any dividend received by a Loan Party from anExcluded Subsidiary.
          “Permitted Seller Note”: a promissory note containing subordination and otherprovisions reasonably acceptable to the Administrative Agent, representing Indebtedness of theBorrower or any Subsidiary incurred in connection with any acquisition permitted under Section7.8(h) and payable to the seller in connection therewith.
          “Person”: an individual, partnership, corporation, limited liability company,business trust, joint stock company, trust, unincorporated association, joint venture, GovernmentalAuthority or other entity of whatever nature.
          “Plan”: at a particular time, any employee benefit plan that is covered by ERISA andin respect of which the Borrower or a Commonly Controlled Entity is (or, if such plan wereterminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” asdefined in Section 3(5) of ERISA.
          “POS Program”: AutoZone’s pay-on scan program, pursuant to which the Borrower or itsSubsidiary causes inventory supplied to AutoZone to remain on the books of the Borrower or suchSubsidiary until such products are scanned.
          “Pricing Grid”: the pricing grid attached hereto as Annex A.
          “Pro Forma Balance Sheet”: as defined in Section 4.1(a).

 

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          “Property”: any right or interest in or to property of any kind whatsoever, whetherreal, personal or mixed and whether tangible or intangible, including, without limitation, CapitalStock of another Person.
          “Qualified Counterparty”: with respect to any Specified Hedge Agreement, anycounterparty thereto that, at the time such Specified Hedge Agreement was entered into, was aLender or an affiliate of a Lender.
          “Qualified Public Offering”: any underwritten public offering of the common stock ofthe Borrower or Holdings which generates cash proceeds to the Borrower or Holdings, as applicable,of at least $50,000,000.
          “Recovery Event”: any settlement of or payment in respect of any property or casualtyinsurance claim or any condemnation proceeding relating to any asset of the Borrower or any of itsSubsidiaries.
          “Refunded Swing Line Loans”: as defined in Section 2.7.
          “Refunding Date”: as defined in Section 2.7.
          “Register”: as defined in Section 10.6(d).
          “Regulation H”: Regulation H of the Board as in effect from time to time.
          “Regulation U”: Regulation U of the Board as in effect from time to time.
          “Reimbursement Obligation”: the obligation of the Borrower to reimburse each IssuingLender pursuant to Section 3.5 for amounts drawn under Letters of Credit issued by such IssuingLender.
          “Reinvestment Deferred Amount”: with respect to any Reinvestment Event, the aggregateNet Cash Proceeds received by the Borrower or any of its Subsidiaries in connection therewith thatare not applied to prepay the Tranche D Term Loans or reduce the Revolving Credit Commitmentspursuant to Section 2.12(b) as a result of the delivery of a Reinvestment Notice.
          “Reinvestment Event”: any Asset Sale or Recovery Event in respect of which theBorrower has delivered a Reinvestment Notice.
          “Reinvestment Notice”: a written notice executed by a Responsible Officer statingthat no Event of Default under paragraph (a) of Section 8, paragraph (c) of Section 8 (with respectto the Borrower’s obligations under Section 7.1 only) or paragraph (f) of Section 8 has occurredand is continuing and that the Borrower (directly or indirectly through a Subsidiary) intends andexpects to use all or a specified portion of the Net Cash Proceeds of an Asset Sale or RecoveryEvent to acquire assets (other than inventory (except in connection with a Recovery Event that isitself related to Inventory)) useful in its business (including, without limitation, PermittedAcquisitions).
          “Reinvestment Prepayment Amount”: with respect to any Reinvestment Event, theReinvestment Deferred Amount relating thereto less any amount expended prior to therelevantReinvestment Prepayment Date (or contractually committed on the relevant ReinvestmentPrepayment Date to be expended within 90 days after such Reinvestment Prepayment Date) to acquireassets (other than inventory (except in connection with a Recovery Event that is itself related toInventory)) useful in the business of the Borrower (directly or through a Subsidiary).

 

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          “Reinvestment Prepayment Date”: with respect to any Reinvestment Event, the earlierof (a) the date occurring one year after such Reinvestment Event and (b) with respect to anyportion of a Reinvestment Deferred Amount, the date on which the Borrower shall have determined notto acquire assets (other than inventory (except in connection with a Recovery Event that is itselfrelated to Inventory)) useful in the business of the Borrower (directly or through a Subsidiary)with such portion of such Reinvestment Deferred Amount.
          “Related Fund”: with respect to any Lender, any fund that (x) invests in commercialloans and (y) is managed or advised by the same investment advisor as such Lender or an Affiliateof such investment advisor, or by such Lender or an Affiliate of such Lender.
          “Reorganization”: with respect to any Multiemployer Plan, the condition that suchplan is in reorganization within the meaning of Section 4241 of ERISA.
          “Reportable Event”: any of the events set forth in Section 4043(c) of ERISA, otherthan those events as to which the thirty day notice period is waivedunder subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Reg. § 4043.
          “Required Lenders”: at any time, the holders of more than 50% of (a) until theClosing Date, the Commitments and Tranche C Term Loans outstanding and (b) thereafter, the sum of(i) the aggregate unpaid principal amount of the Tranche D Term Loans then outstanding and (ii) theTotal Revolving Credit Commitments then in effect or, if the Revolving Credit Commitments have beenterminated, the Total Revolving Extensions of Credit then outstanding.
          “Requirement of Law”: as to any Person, any law, treaty, rule or regulation ordetermination of an arbitrator or a court or other Governmental Authority, in each case applicableto or binding upon such Person or any of its Property or to which such Person or any of itsProperty is subject.
          “Responsible Officer”: with respect to financial matters, the chief executiveofficer, president, chief financial officer, treasurer or controller of the Borrower, and withrespect to all other matters, any officer of the Borrower or other applicable Loan Party.
          “Restricted Payments”: as defined in Section 7.6.
          “Revolving Credit Commitment”: as to any Lender, the obligation of such Lender, ifany, to make Revolving Credit Loans and participate in Swing Line Loans and Letters of Credit, inan aggregate principal and/or face amount not to exceed the amount set forth under the heading“Revolving Credit Commitment” opposite such Lender’s name on Schedule 1 to the Lender Addendumdelivered by such Lender on the Original Closing Date, or, as the case may be, in the Assignmentand Acceptance pursuant to which such Lender became a party hereto, as the same may be changed fromtime to time pursuant to the terms hereof. The original aggregate amount of the Total RevolvingCredit Commitments is $75,000,000.
          “Revolving Credit Commitment Period”: the period from and including the OriginalClosing Date to the Revolving Credit Termination Date.
          “Revolving Credit Facility”: as defined in the definition of “Facility” in thisSection 1.1.
          “Revolving Credit Lender”: each Lender that has a Revolving Credit Commitment or thatis the holder of Revolving Credit Loans.

 

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          “Revolving Credit Loans”: as defined in Section 2.4.
          “Revolving Credit Note”: as defined in Section 2.8.
          “Revolving Credit Percentage”: as to any Revolving Credit Lender at any time, thepercentage which such Lender’s Revolving Credit Commitment then constitutes of the Total RevolvingCredit Commitments (or, at any time after the Revolving Credit Commitments shall have expired orterminated, the percentage which the aggregate amount of such Lender’s Revolving Extensions ofCredit then outstanding constitutes the amount of the Total Revolving Extensions of Credit thenoutstanding).
          “Revolving Credit Termination Date”: June 30, 2009.
          “Revolving Extensions of Credit”: as to any Revolving Credit Lender at any time, anamount equal to the sum of (a) the aggregate principal amount of all Revolving Credit Loans made bysuch Lender then outstanding, (b) such Lender’s Revolving Credit Percentage of the L/C Obligationsthen outstanding and (c) such Lender’s Revolving Credit Percentage of the aggregate principalamount of Swing Line Loans then outstanding.
          “SEC”: the Securities and Exchange Commission (or successors thereto or an analogousGovernmental Authority).
          “Secured Parties”: as defined in the Guarantee and Collateral Agreement.
          “Security Documents”: the collective reference to the Guarantee and CollateralAgreement, the Mortgages and all other security documents hereafter delivered to the AdministrativeAgent granting a Lien on any Property of any Person to secure the obligations and liabilities ofany Loan Party under any Loan Document.
          “Senior Subordinated Note Indenture”: the Indenture entered into by the Borrower andcertain of its Subsidiaries in connection with the issuance of the Senior Subordinated Notes,together with all material instruments and other agreements entered into by the Borrower or suchSubsidiaries in connection therewith, as the same may be amended, supplemented or otherwisemodified from time to time in accordance with Section 7.9.
          “Senior Subordinated Notes”: the subordinated notes of the Borrower issued on theOriginal Closing Date and any exchange notes issued in replacement thereof, in each case pursuantto the Senior Subordinated Note Indenture.
          “Single Employer Plan”: any Plan that is covered by Title IV of ERISA, but which isnot a Multiemployer Plan.
          “Solvent”: with respect to any Person, as of any date of determination, (a) theamount of the “present fair saleable value” of the assets of such Person will, as of such date,exceed the amount of all “liabilities of such Person, contingent or otherwise”, as of such date, assuch quoted terms are determined in accordance with applicable federal and state laws governingdeterminations of the insolvency of debtors, (b) the present fair saleable value of the assets ofsuch Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on itsdebts as such debts become absolute and matured, (c) such Person will not have, as of such date, anunreasonably small amount of capital with which to conduct its business, and (d) such Person willbe able to pay its debts as they mature. For purposes of this definition, (i) “debt” meansliability on a “claim”, and (ii) “claim” means any (x) right to payment, whether or not such aright is reduced to judgment, liquidated,

 

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unliquidated, fixed, contingent, matured, unmatured,disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedyfor breach of performance if such breach gives rise to a right to payment, whether or not suchright to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured,disputed, undisputed, secured or unsecured.
          “Specified Change of Control”: a “Change of Control”, as defined in the SeniorSubordinated Note Indenture.
          “Specified Hedge Agreement”: any Hedge Agreement entered into by the Borrower or anySubsidiary Guarantor and any Qualified Counterparty.
          “Sponsor”: TC Group L.L.C. (which operates under the trade name “The Carlyle Group”).
          “Subsidiary”: as to any Person, a corporation, partnership, limited liability companyor other entity of which shares of stock or other ownership interests having ordinary voting power(other than stock or such other ownership interests having such power only by reason of thehappening of a contingency) to elect a majority of the board of directors or other managers of suchcorporation, partnership or other entity are at the time owned, directly or indirectly through oneor more intermediaries, or both, by such Person. Unless otherwise qualified, all references to a“Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries ofthe Borrower.
          “Subsidiary Guarantor”: each Subsidiary of the Borrower other than any ExcludedSubsidiary.
          “SunTrust”: SunTrust Bank, a Georgia banking corporation.
          “SunTrust (Advance Auto) Factoring Agreement”: that certain Letter of Understandingand Agreement, dated February 9, 2004, by and between ASC Industries, Inc. and SunTrust.
          “SunTrust (Autozone) Factoring Agreement”: that certain Supplier Agreement, dated asof November 30, 2004, by and between ASC Industries, Inc. and SunTrust.
          “Swing Line Commitment”: the obligation of the Swing Line Lender to make Swing LineLoans pursuant to Section 2.6 in an aggregate principal amount at any one time outstanding not toexceed $15,000,000.
          “Swing Line Lender”: Lehman Commercial Paper Inc., in its capacity as the lender ofSwing Line Loans.
          “Swing Line Loans”: as defined in Section 2.6.
          “Swing Line Note”: as defined in Section 2.8.
          “Swing Line Participation Amount”: as defined in Section 2.7.
          “Syndication Agent”: as defined in the preamble hereto.
          “Target”: ACAS Acquisitions (ASC), Inc. to be renamed ASC Holdco, Inc. on or aboutthe Closing Date.

 

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          “Total Revolving Credit Commitments”: at any time, the aggregate amount of theRevolving Credit Commitments then in effect.
          “Total Revolving Extensions of Credit”: at any time, the aggregate amount of theRevolving Extensions of Credit of the Revolving Credit Lenders outstanding at such time.
          “Tranche C Term Loan Lender”: as defined in the Existing Credit Agreement.
          “Tranche C Term Loans”: all tranche C term loans outstanding under the ExistingCredit Agreement and repaid in full or converted to Tranche D Term Loans on the Closing Date.
          “Tranche D Term Loan”: as defined in Section 2.1.
          “Tranche D Term Loan Commitment”: as to any Lender, the obligation of such Lender, ifany, to make a Tranche D Term Loan to the Borrower hereunder on the Closing Date in a principalamount not to exceed the amount set forth in paragraph B or paragraph C, as applicable, of theLender Addendum delivered by such Lender, or, as the case may be, in the Assignment and Acceptancepursuant to which such Lender became a party hereto. The original aggregate amount of the TrancheD Term Loan Commitments is $330,000,000.
          “Tranche D Term Loan Lender”: each Lender that has a Tranche D Term Loan Commitmentor that holds a Tranche D Term Loan.
          “Tranche D Term Loan Percentage”: as to any Tranche D Term Lender at any time, thepercentage which such Lender’s Tranche D Term Loan Commitment then constitutes of the aggregateTranche D Term Loan Commitments (or, at any time after the Closing Date, the percentage which theaggregate principal amount of such Lender’s Tranche D Term Loans then outstanding constitutes ofthe aggregate principal amount of the Tranche D Term Loans then outstanding).
          “Tranche D Term Note”: as defined in Section 2.8.
          “Transferee”: as defined in Section 10.14.
          “Type”: as to any Loan, its nature as a Base Rate Loan or a Eurodollar Loan.
          “Wholly Owned Subsidiary”: as to any Person, any other Person all of the CapitalStock of which (other than directors’ qualifying shares required by law) is owned by such Persondirectly and/or through other Wholly Owned Subsidiaries.
          “Wholly Owned Subsidiary Guarantor”: any Subsidiary Guarantor that is a Wholly OwnedSubsidiary of the Borrower.
          1.2 Other Definitional Provisions. (a) Unless otherwise specified therein, all termsdefined in this Agreement shall have the defined meanings when used in the other Loan Documents orany certificate or other document made or delivered pursuant hereto or thereto.
          (b) As used herein and in the other Loan Documents, and any certificate or other document madeor delivered pursuant hereto or thereto, accounting terms relating to the Borrower and itsSubsidiaries not defined in Section 1.1 and accounting terms partly defined in Section 1.1, to theextent not defined, shall have the respective meanings given to them under GAAP.

 

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          (c) The words “hereof”, “herein” and “hereunder” and words of similar import when used in thisAgreement shall refer to this Agreement as a whole and not to any particular provision of thisAgreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwisespecified.
          (d) The meanings given to terms defined herein shall be equally applicable to both thesingular and plural forms of such terms.
          (e) All calculations of financial ratios set forth in Section 7.1 and the calculation of theConsolidated Leverage Ratio for purposes of determining the Applicable Margin shall be calculatedto the same number of decimal places as the relevant ratios are expressed in. For example, if therelevant ratio is to be calculated to the hundredth decimal place and the calculation of the ratiois 5.126, the ratio will be 5.12.
          (f) With respect to each Subsidiary that is not a Wholly-Owned Subsidiary, for purposes ofcalculating any financial covenant, any basket or threshold amount, any liability and/or anycapital expenditures, the amount attributable to such Subsidiary that shall be counted for suchpurposes shall equal the product of (x) the Borrower’s direct and/or indirect percentage ownershipof such Subsidiary and (y) the aggregate amount of the applicable item of such Subsidiary.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
          2.1 Tranche D Term Loan Commitments. Subject to the terms and conditions hereof, theTranche D Term Lenders severally agree to make term loans (each, a “Tranche D Term Loan”)to the Borrower on the Closing Date in an amount for each Tranche D Term Loan Lender not to exceedthe Tranche D Term Loan Commitment of such Lender. The Tranche D Term Loans may from time to timebe Eurodollar Loans or Base Rate Loans, as determined by the Borrower and notified to theAdministrative Agent in accordance with Sections 2.2 and 2.13.
          2.2 Procedure for Tranche D Term Loan Borrowing. The Borrower shall give theAdministrative Agent irrevocable notice (which notice must be received by the Administrative Agentprior to 10:00 A.M., New York City time, (a) three Business Days prior to the anticipated ClosingDate, in the case of Eurodollar Loans (provided that such notice shall contain an agreementsatisfactory to the Administrative Agent that the Borrower agrees to indemnify and hold harmlesseach Lender from any loss or expense that such Lender actually sustains or incurs (but excludingany loss of anticipated profits) as a consequence of the Closing Date not occurring, for anyreason, on the anticipated Closing Date set forth in such notice) and (b) one Business Day prior tothe anticipated Closing Date, in the case of Base Rate Loans) requesting that the Tranche D TermLoan Lenders make the requested Tranche D Term Loans on the Closing Date, and specifying the amountto be borrowed. The Tranche D Term Loans initially made on the Closing Date shall initially beBase Rate Loans, but any Tranche D Term Loans that were converted from Tranche C Term Loans thatwere Eurodollar Loans shall continue as Eurodollar Loans with the same Interest Period as theTranche C Term Loans so converted. Upon receipt of such notice the Administrative Agent shallpromptly notify eachTranche D Term Loan Lender thereof. Not later than 12:00 Noon, New York City time, on theClosing Date, each Tranche D Term Loan Lender shall make available to the Administrative Agent atthe Funding Office an amount in immediately available funds equal to the Tranche D Term Loan orTranche D Term Loans to be made by such Lender; provided, however, that, at theoption of each Tranche D Term Loan Lender that is a Tranche C Term Loan Lender immediately prior togiving effect to the amendment and restatement of the Existing Credit Agreement, all or a portionof the aggregate amount of Tranche C Term Loans of such Tranche D Term Loan Lender may be convertedto Tranche D Term Loans and applied toward the satisfaction of the foregoing funding requirement.Subject to the immediately preceding sentence, the Administrative Agent

 

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shall use the amounts madeavailable to the Administrative Agent by the Tranche D Term Loan Lenders to prepay the Tranche CTerm Loans outstanding and not converted as set forth above on such date.
          2.3 Repayment of Tranche D Term Loans. The Tranche D Term Loan of each Tranche D TermLoan Lender shall mature in 24 consecutive quarterly installments, commencing on September 30,2006, each of which shall be in an amount equal to such Lender’s Tranche D Term Loan Percentagemultiplied by the amount set forth below opposite such installment, as such amount may be reducedby any optional or mandatory prepayment made in accordance with the terms hereof:
         
Installment Date   Principal Amount
September 30, 2006
  $ 825,000  
December 31, 2006
  $ 825,000  
March 31, 2007
  $ 825,000  
June 30, 2007
  $ 825,000  
September 30, 2007
  $ 825,000  
December 31, 2007
  $ 825,000  
March 31, 2008
  $ 825,000  
June 30, 2008
  $ 825,000  
September 30, 2008
  $ 825,000  
December 31, 2008
  $ 825,000  
March 31, 2009
  $ 825,000  
June 30, 2009
  $ 825,000  
September 30, 2009
  $ 825,000  
December 31, 2009
  $ 825,000  
March 31, 2010
  $ 825,000  
June 30, 2010
  $ 825,000  
September 30, 2010
  $ 825,000  
December 31, 2010
  $ 825,000  
March 31, 2011
  $ 825,000  
June 30, 2011
  $ 825,000  
September 30, 2011
  $ 78,375,000  
December 31, 2011
  $ 78,375,000  
March 31, 2012
  $ 78,375,000  
June 30, 2012
  $ 78,375,000  
          2.4 Revolving Credit Commitments. (a) Subject to the terms and conditions hereof, the Revolving Credit Lenders severallyagree to make revolving credit loans (“Revolving Credit Loans”) to the Borrower from timeto time during the Revolving Credit Commitment Period in an aggregate principal amount at any onetime outstanding for each Revolving Credit Lender which, when added to such Lender’s RevolvingCredit Percentage of the sum of (i) the L/C Obligations then outstanding and (ii) the aggregateprincipal amount of the Swing Line Loans then outstanding, does not exceed the amount of suchLender’s Revolving Credit Commitment. During the Revolving Credit Commitment Period the Borrowermay use the Revolving Credit Commitments by borrowing, prepaying the Revolving Credit Loans inwhole or in part, and reborrowing, all in accordance with the terms and conditions hereof. TheRevolving Credit Loans may from time to time be Eurodollar Loans or Base Rate Loans, as determinedby the Borrower and notified to the Administrative Agent in accordance with Sections 2.5 and 2.13,provided that no Revolving Credit Loan shall be made as a Eurodollar Loan after the daythat is one month prior to the Revolving Credit Termination Date. Any Revolving Credit Loan


 

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(asdefined under the Existing Credit Agreement) outstanding on the Closing Date shall remainoutstanding as a Revolving Credit Loan hereunder.
          (b) The Borrower shall repay all outstanding Revolving Credit Loans on the Revolving CreditTermination Date.
          2.5 Procedure for Revolving Credit Borrowing. The Borrower may borrow under theRevolving Credit Commitments on any Business Day during the Revolving Credit Commitment Period,provided that the Borrower shall deliver to the Administrative Agent a Borrowing Notice(which Borrowing Notice must be received by the Administrative Agent prior to 12:00 Noon, New YorkCity time, (a) three Business Days prior to the requested Borrowing Date, in the case of EurodollarLoans, or (b) one Business Day prior to the requested Borrowing Date, in the case of Base RateLoans). Each borrowing of Revolving Credit Loans under the Revolving Credit Commitments shall bein an amount equal to (x) in the case of Base Rate Loans, $250,000 or a multiple of $50,000 inexcess thereof (or, if the then aggregate Available Revolving Credit Commitments are less than$250,000, such lesser amount) and (y) in the case of Eurodollar Loans, $1,000,000 or a multiple of$500,000 in excess thereof; provided, that the Swing Line Lender may request, on behalf ofthe Borrower, borrowings of Base Rate Loans under the Revolving Credit Commitments in other amountspursuant to Section 2.7 and the Borrower may request borrowings of Base Rate Loans under theRevolving Credit Commitments in other amounts pursuant to Section 3.5. Upon receipt of any suchBorrowing Notice from the Borrower, the Administrative Agent shall promptly notify each RevolvingCredit Lender thereof. Each Revolving Credit Lender will make its Revolving Credit Percentage ofthe amount of each borrowing of Revolving Credit Loans available to the Administrative Agent forthe account of the Borrower at the Funding Office prior to 12:00 Noon, New York City time, on theBorrowing Date requested by the Borrower in funds immediately available to the AdministrativeAgent. Such borrowing will then be made available to the Borrower by the Administrative Agent inlike funds as received by the Administrative Agent.
          2.6 Swing Line Commitment. (a) Subject to the terms and conditions hereof, the SwingLine Lender agrees that, during the Revolving Credit Commitment Period, it will make available tothe Borrower in the form of swing line loans (“Swing Line Loans”) a portion of the creditotherwise available to the Borrower under the Revolving Credit Commitments; provided that(i) the aggregate principal amount of Swing Line Loans outstanding at any time shall not exceed theSwing Line Commitment then in effect (notwithstanding that the Swing Line Loans outstanding at anytime, when aggregated with the Swing Line Lender’s other outstanding Revolving Credit Loanshereunder, may exceed the Swing Line Commitment then in effect or such Swing Line Lender’sRevolving Credit Commitment then in effect)and (ii) the Borrower shall not request, and the Swing Line Lender shall not make, any SwingLine Loan if, after giving effect to the making of such Swing Line Loan, the aggregate amount ofthe Available Revolving Credit Commitments would be less than zero. During the Revolving CreditCommitment Period, the Borrower may use the Swing Line Commitment by borrowing, repaying andreborrowing, all in accordance with the terms and conditions hereof. Swing Line Loans shall beBase Rate Loans only.
          (b) The Borrower shall repay all outstanding Swing Line Loans on the Revolving CreditTermination Date.
          2.7 Procedure for Swing Line Borrowing; Refunding of Swing Line Loans. (a) TheBorrower may borrow under the Swing Line Commitment on any Business Day during the Revolving CreditCommitment Period, provided, the Borrower shall give the Swing Line Lender irrevocabletelephonic notice confirmed promptly in writing (which telephonic notice must be received by theSwing Line Lender not later than 12:00 Noon, New York City time, on the proposed Borrowing Date),specifying (i) the amount to be borrowed and (ii) the requested Borrowing Date. Each borrowingunder


 

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the Swing Line Commitment shall be in an amount equal to $100,000 or a whole multiple of$50,000 in excess thereof. Not later than 2:00 P.M., New York City time, on the Borrowing Datespecified in the borrowing notice in respect of any Swing Line Loan, the Swing Line Lender shallmake available to the Administrative Agent at the Funding Office an amount in immediately availablefunds equal to the amount of such Swing Line Loan. The Administrative Agent shall make theproceeds of such Swing Line Loan available to the Borrower on such Borrowing Date in like funds asreceived by the Administrative Agent.
          (b) The Swing Line Lender, at any time and from time to time in its sole and absolutediscretion may, on behalf of the Borrower (which hereby irrevocably directs the Swing Line Lenderto act on its behalf), on one Business Day’s notice given by the Swing Line Lender no later than12:00 Noon, New York City time, request each Revolving Credit Lender to make, and each RevolvingCredit Lender hereby agrees to make, a Revolving Credit Loan (which shall initially be a Base RateLoan), in an amount equal to such Revolving Credit Lender’s Revolving Credit Percentage of theaggregate amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding onthe date of such notice, to repay the Swing Line Lender. Each Revolving Credit Lender shall makethe amount of such Revolving Credit Loan available to the Administrative Agent at the FundingOffice in immediately available funds, not later than 10:00 A.M., New York City time, one BusinessDay after the date of such notice. The proceeds of such Revolving Credit Loans shall be madeimmediately available by the Administrative Agent to the Swing Line Lender for application by theSwing Line Lender to the repayment of the Refunded Swing Line Loans.
          (c) If prior to the time a Revolving Credit Loan would have otherwise been made pursuant toSection 2.7(b), one of the events described in Section 8(f) shall have occurred and be continuingwith respect to the Borrower, or if for any other reason, as determined by the Swing Line Lender inits sole discretion, Revolving Credit Loans may not be made as contemplated by Section 2.7(b), eachRevolving Credit Lender shall, on the date such Revolving Credit Loan was to have been madepursuant to the notice referred to in Section 2.7(b) (the “Refunding Date”), purchase forcash an undivided participating interest in the then outstanding Swing Line Loans by paying to theSwing Line Lender an amount (the “Swing Line Participation Amount”) equal to (i) suchRevolving Credit Lender’s Revolving Credit Percentage times (ii) the sum of the aggregateprincipal amount of Swing Line Loans then outstanding which were to have been repaid with suchRevolving Credit Loans.
          (d) Whenever, at any time after the Swing Line Lender has received from any Revolving CreditLender such Lender’s Swing Line Participation Amount, the Swing Line Lenderreceives any payment on account of the Swing Line Loans, the Swing Line Lender will distributeto such Lender its Swing Line Participation Amount (appropriately adjusted, in the case of interestpayments, to reflect the period of time during which such Lender’s participating interest wasoutstanding and funded and, in the case of principal and interest payments, to reflect suchLender’s pro rata portion of such payment if such payment is not sufficient to paythe principal of and interest on all Swing Line Loans then due); provided, however,that in the event that such payment received by the Swing Line Lender is required to be returned,such Revolving Credit Lender will return to the Swing Line Lender any portion thereof previouslydistributed to it by the Swing Line Lender.
          (e) Each Revolving Credit Lender’s obligation to make the Loans referred to in Section 2.7(b)and to purchase participating interests pursuant to Section 2.7(c) shall be absolute andunconditional and shall not be affected by any circumstance, including, without limitation, (i) anysetoff, counterclaim, recoupment, defense or other right which such Revolving Credit Lender or theBorrower may have against the Swing Line Lender, the Borrower or any other Person for any reasonwhatsoever; (ii) the occurrence or continuance of a Default or an Event of Default or the failureto satisfy any of the other conditions specified in Section 5; (iii) any adverse change in thecondition (financial or otherwise)


 

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of the Borrower; (iv) any breach of this Agreement or any otherLoan Document by the Borrower, any other Loan Party or any other Revolving Credit Lender; or (v)any other circumstance, happening or event whatsoever, whether or not similar to any of theforegoing.
          2.8 Repayment of Loans; Evidence of Debt. (a) The Borrower hereby unconditionallypromises to pay to the Administrative Agent for the account of the appropriate Revolving CreditLender or Tranche D Term Loan Lender, as the case may be, (i) the then unpaid principal amount ofeach Revolving Credit Loan of such Revolving Credit Lender on the Revolving Credit Termination Date(or on such earlier date on which the Loans become due and payable pursuant to Section 8), (ii) thethen unpaid principal amount of each Swing Line Loan of such Swing Line Lender on the RevolvingCredit Termination Date (or on such earlier date on which the Loans become due and payable pursuantto Section 8) and (iii) the principal amount of each Tranche D Term Loan of such Tranche D TermLoan Lender in installments according to the amortization schedule set forth in Section 2.3 (or onsuch earlier date on which the Loans become due and payable pursuant to Section 8);provided that to the extent not otherwise paid in full, all principal and interestoutstanding in respect of the Tranche D Term Loans shall be paid on the date of the lastinstallment thereof. The Borrower hereby further agrees to pay interest on the unpaid principalamount of the Loans from time to time outstanding from the date hereof until payment in fullthereof at the rates per annum, and on the dates, set forth in Section 2.15.
          (b) Each Lender shall maintain in accordance with its usual practice an account or accountsevidencing indebtedness of the Borrower to such Lender resulting from each Loan of such Lender fromtime to time, including the amounts of principal and interest payable and paid to such Lender fromtime to time under this Agreement.
          (c) The Administrative Agent, on behalf of the Borrower, shall maintain the Register pursuantto Section 10.6(d), and a subaccount therein for each Lender, in which shall be recorded (i) theamount of each Loan made hereunder and any Note evidencing such Loan, the Type of such Loan andeach Interest Period applicable thereto, (ii) the amount of any principal or interest due andpayable or to become due and payable from the Borrower to each Lender hereunder and (iii) both theamount of any sum received by the Administrative Agent hereunder from the Borrower and eachLender’s share thereof.
          (d) The entries made in the Register and the accounts of each Lender maintained pursuant toSection 2.8(b) shall, to the extent permitted by applicable law, be presumptively correct,absent manifest error, as to the existence and amounts of the obligations of the Borrowertherein recorded; provided, however, that the failure of any Lender or theAdministrative Agent to maintain the Register or any such account, or any error therein, shall notin any manner affect the obligation of the Borrower to repay (with applicable interest) the Loansmade to the Borrower by such Lender in accordance with the terms of this Agreement.
          (e) The Borrower agrees that, upon the request to the Administrative Agent by any Lender, theBorrower will promptly execute and deliver to such Lender a promissory note of the Borrowerevidencing any Tranche D Term Loans, Revolving Credit Loans or Swing Line Loans, as the case maybe, of such Lender, substantially in the forms of Exhibit G-1, G-2 or G-3, respectively (a“Tranche D Term Note”, “Revolving Credit Note” or “Swing Line Note”,respectively), with appropriate insertions as to date and principal amount; provided, thatdelivery of Notes shall not be a condition precedent to the occurrence of the Closing Date or themaking of the Tranche D Term Loans on the Closing Date.
          2.9 Commitment Fees, etc. (a) The Borrower agrees to pay to the Administrative Agentfor the account of each Revolving Credit Lender a commitment fee for the period from and includingthe Original Closing Date to the last day of the Revolving Credit Commitment Period,


 

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computed atthe Commitment Fee Rate on the average daily amount of the Available Revolving Credit Commitment ofsuch Lender during the period for which payment is made, payable quarterly in arrears on the lastday of each March, June, September and December and on the Revolving Credit Termination Date, withthe payment of such fees having commenced on September 30, 2003.
          (b) The Borrower agrees to pay to the Administrative Agent, the Syndication Agent and theJoint Lead Arrangers the fees in the amounts and on the dates previously agreed to in writing bythe Borrower and the Administrative Agent, the Syndication Agent and the Joint Lead Arrangers (orany of them individually).
          2.10 Termination or Reduction of Revolving Credit Commitments. The Borrower shallhave the right, upon not less than one Business Day’s notice to the Administrative Agent, toterminate the Revolving Credit Commitments or, from time to time, to reduce the aggregate amount ofthe Revolving Credit Commitments; provided that no such termination or reduction ofRevolving Credit Commitments shall be permitted if, after giving effect thereto and to anyprepayments of the Revolving Credit Loans and Swing Line Loans made on the effective date thereof,the Total Revolving Extensions of Credit would exceed the Total Revolving Credit Commitments. Anysuch reduction shall be in an amount equal to $500,000, or a multiple of $50,000 in excess thereof,and shall reduce permanently the Revolving Credit Commitments then in effect.
          2.11 Optional Prepayments. The Borrower may at any time and from time to time prepaythe Loans, in whole or in part, without premium or penalty (except as otherwise provided herein),upon notice delivered to the Administrative Agent at least three Business Days prior thereto in thecase of Eurodollar Loans and at least one Business Day prior thereto in the case of Base RateLoans, which notice shall specify the date and amount of such prepayment, whether such prepaymentis of Tranche D Term Loans or Revolving Credit Loans, and whether such prepayment is of EurodollarLoans or Base Rate Loans; provided, that (i) if a Eurodollar Loan is prepaid on any dayother than the last day of the Interest Period applicable thereto, the Borrower shall also pay anyamounts owing pursuant to Section 2.21 and (ii) no prior notice isrequired for the prepayment of Swing Line Loans. Any notice of prepayment given pursuant tothis Section shall be irrevocable, provided, that such notice may state that it isconditioned upon the effectiveness of other credit facilities, in which case such notice may berevoked if such condition is not satisfied. Upon receipt of any such notice the AdministrativeAgent shall promptly notify each relevant Lender thereof. If any such notice is given, the amountspecified in such notice shall be due and payable on the date specified therein, together with(except in the case of Revolving Credit Loans that are Base Rate Loans and Swing Line Loans)accrued interest to such date on the amount prepaid. Partial prepayments of Tranche D Term Loansand Revolving Credit Loans shall be in an aggregate principal amount of $500,000 or a multiple of$50,000 in excess thereof. Partial prepayments of Swing Line Loans shall be in an aggregateprincipal amount of $100,000 or a whole multiple thereof.
          2.12 Mandatory Prepayments and Commitment Reductions. (a) Unless the RequiredLenders shall otherwise agree, if (i) any Capital Stock shall be issued by Holdings or the Borrower(other than any issuance to Holdings or any of its other Subsidiaries), excluding any such CapitalStock issued by the Borrower or Holdings (A) to any Permitted Investor or (B) the proceeds of whichare used within 360 days after receipt thereof by the Borrower or any Subsidiary to makeInvestments permitted by Section 7.8(h) or Capital Expenditures permitted by this Agreement,(provided that (x) the Borrower shall have notified the Administrative Agent in writing of suchintended use not later than the ten days after the date of receipt of such proceeds and (y) anysuch proceeds not so used within such 360-day period shall be applied to the prepayment of theTranche D Term Loans on the last day of such period), or (ii) any Funded Debt is incurred by theBorrower or any other Loan Party (excluding Indebtedness permitted by Section 7.2), then on thedate of such issuance or incurrence, as the case may be, the Tranche D Term Loans shall be prepaidby an amount equal to the amount 50% of the Net Cash Proceeds of such issuance

 

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of Capital Stock or100% of the Net Cash Proceeds of such incurrence of Indebtedness, as the case may be. Theprovisions of this Section do not constitute a consent to the issuance of any equity securities byany entity whose equity securities are pledged pursuant to the Guarantee and Collateral Agreement,or a consent to the incurrence of any Indebtedness by the Borrower or any of its Subsidiaries.
          (b) Unless the Required Lenders shall otherwise agree, if on any date the Borrower or anyother Loan Party shall receive Net Cash Proceeds from any Asset Sale (including any Disposition ofany Capital Stock of any Subsidiary, whether by the issuer or the Loan Party that is the ownerthereof, other than any such Disposition excluded from being an Asset Sale by the exclusionscontained in the definition of “Asset Sale” in Section 1.1) or Recovery Event yielding Net CashProceeds in excess of $5,000,000 then, unless a Reinvestment Notice shall be delivered in respectthereof, within three Business Days after the date of receipt by such Loan Party of such Net CashProceeds, the Tranche D Term Loans shall be prepaid, and/or the Revolving Credit Commitments shallbe reduced, by an amount equal to the amount of such Net Cash Proceeds, as set forth in Section2.12(d); provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceedsof Asset Sales that may be excluded from the foregoing requirement pursuant to a ReinvestmentNotice shall not exceed the sum of (x) $20,000,000 in any fiscal year of the Borrower and (y) up to$15,000,000 during the term of this Agreement of Net Cash Proceeds from the Disposition of Non-CoreAssets, (ii) on each Reinvestment Prepayment Date the Tranche D Term Loans shall be prepaid, and/orthe Revolving Credit Commitments shall be reduced, by an amount equal to the ReinvestmentPrepayment Amount with respect to the relevant Reinvestment Event, as set forth in Section 2.12(d),and (iii) in any event the Tranche D Term Loans shall be prepaid and/or the Revolving CreditCommitments shall be reduced, by an amount equal to any Net Cash Proceeds of any Asset Sale,Recovery Event or other Disposition of property of any Loan Party that would otherwise be requiredto be used to prepay the Senior Subordinated Notes, on the date such prepayment of the SeniorSubordinated Notes would otherwise be required to be made, as set forth in Section 2.12(d). Theprovisions of this Section do not constitute a consent to the consummation of any Dispositionnot permitted by Section 7.5.
          (c) Unless the Required Lenders shall otherwise agree, if, for any fiscal year of the Borrowercommencing with the fiscal year ending December 31, 2004, there shall be Excess Cash Flow, then, onthe relevant Excess Cash Flow Application Date, the Tranche D Term Loans shall be prepaid by anamount equal to the ECF Percentage of such Excess Cash Flow. Each such prepayment and commitmentreduction shall be made on a date (an “Excess Cash Flow Application Date”) no later thanfive days after the date on which the financial statements of the Borrower referred to in Section6.1(a), for the fiscal year with respect to which such prepayment is made, are required to bedelivered to the Lenders.
          (d) Amounts to be applied in connection with prepayments and Commitment reductions madepursuant to Section 2.12(b) shall be applied, first, to the prepayment of the Tranche DTerm Loans until the Tranche D Term Loans are repaid in full and, second, to reducepermanently the Revolving Credit Commitments. Any such reduction of the Revolving CreditCommitments shall be accompanied by prepayment of the Revolving Credit Loans and/or Swing LineLoans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of theTotal Revolving Credit Commitments as so reduced, provided that if the aggregate principalamount of Revolving Credit Loans and Swing Line Loans then outstanding is less than the amount ofsuch excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to theextent of the balance of such excess, replace outstanding Letters of Credit and/or deposit anamount in cash in a cash collateral account established with the Administrative Agent for thebenefit of the Secured Parties on terms and conditions reasonably satisfactory to theAdministrative Agent.
          2.13 Conversion and Continuation Options. (a) The Borrower may elect from time totime to convert Eurodollar Loans to Base Rate Loans by giving theAdministrative Agent at least one

 

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Business Day’s prior irrevocable notice of such election. The Borrower may elect from time to timeto convert Base Rate Loans to Eurodollar Loans by giving the Administrative Agent at least threeBusiness Days’ prior irrevocable notice of such election (which notice shall specify the length ofthe initial Interest Period therefor), provided that no Base Rate Loan under a particularFacility may be converted into a Eurodollar Loan (i) when any Event of Default has occurred and iscontinuing and the Administrative Agent has, or the Majority Facility Lenders in respect of suchFacility have, determined in its or their sole discretion not to permit such conversions or (ii)after the date that is one month prior to the final scheduled termination or maturity date of suchFacility. Upon receipt of any such notice the Administrative Agent shall promptly notify eachrelevant Lender thereof.
          (b) The Borrower may elect to continue any Eurodollar Loan as such upon the expiration of thethen current Interest Period with respect thereto by giving irrevocable notice to theAdministrative Agent, in accordance with the applicable provisions of the term “Interest Period”set forth in Section 1.1, of the length of the next Interest Period to be applicable to such Loans,provided that no Eurodollar Loan under a particular Facility may be continued as such whenany Event of Default has occurred and is continuing and the Administrative Agent has, or theMajority Facility Lenders in respect of such Facility have, determined in its or their solediscretion not to permit such continuations, and provided, further, that if theBorrower shall fail to give any required notice as described above in this paragraph or if suchcontinuation is not permitted pursuant to the preceding proviso, such Loans shall be convertedautomatically to Base Rate Loans on the last day of such then expiring Interest Period. Uponreceipt of any such notice the Administrative Agent shall promptly notify each relevant Lenderthereof.
          (c) Any Tranche C Term Loan that is a Eurodollar Loan and is converted to a Tranche D TermLoan shall continue as a Eurodollar Loan.
          2.14 Minimum Amounts and Maximum Number of Eurodollar Tranches. Notwithstandinganything to the contrary in this Agreement, all borrowings, conversions, continuations and optionalprepayments of Eurodollar Loans and all selections of Interest Periods shall be in such amounts andbe made pursuant to such elections so that, (a) after giving effect thereto, the aggregateprincipal amount of the Eurodollar Loans comprising each Eurodollar Tranche shall be equal to$1,000,000 or a whole multiple of $500,000 in excess thereof and (b) no more than nine EurodollarTranches shall be outstanding at any one time.
          2.15 Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall bear interestfor each day during each Interest Period with respect thereto at a rate per annum equal to theEurodollar Rate determined for such day plus the Applicable Margin in effect for such day.
          (b) Each Base Rate Loan shall bear interest for each day on which it is outstanding at a rateper annum equal to the Base Rate in effect for such day plus the Applicable Margin in effect forsuch day.
          (c) (i) If all or a portion of the principal amount of any Loan or Reimbursement Obligationshall not be paid when due (whether at the stated maturity, by acceleration or otherwise), suchoverdue amount shall bear interest at a rate per annum that is equal to (x) in the case of theLoans, the rate that would otherwise be applicable thereto pursuant to the foregoing provisions ofthis Section plus 2% or (y) in the case of Reimbursement Obligations, the rate applicable to BaseRate Loans under the Revolving Credit Facility plus 2%, and (ii) if all or a portion of anyinterest payable on any Loan or Reimbursement Obligation or any commitment fee or other amountpayable hereunder shall not be paid when due (whether at the stated maturity, by acceleration orotherwise), such overdue amount shall bear interest at a rate per annum equal to the rate thenapplicable to Base Rate Loans under the relevant Facility plus 2% (or, in the case of any suchother amounts that do not relate to a particular Facility, the rate then applicable


 

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to Base Rate Loans under the Revolving Credit Facility plus 2%), in each case, with respect to clauses (i) and(ii) above, from the date of such non-payment until such amount is paid in full (after as well asbefore judgment).
          (d) Interest shall be payable in arrears on each Interest Payment Date, provided thatinterest accruing pursuant to paragraph (c) of this Section shall be payable from time to time ondemand.
          2.16 Computation of Interest and Fees. (a) Interest, fees and commissions payablepursuant hereto shall be calculated on the basis of a 360-day year for the actual days elapsed,except that, with respect to Base Rate Loans on which interest is calculated on the basis of thePrime Rate, the interest thereon shall be calculated on the basis of a 365- (or 366-, as the casemay be) day year for the actual days elapsed. The Administrative Agent shall as soon aspracticable notify the Borrower and the relevant Lenders of each determination of a EurodollarRate. Any change in the interest rate on a Loan resulting from a change in the Base Rate or theEurocurrency Reserve Requirements shall become effective as of the opening of business on the dayon which such change becomes effective. The Administrative Agent shall as soon as practicablenotify the Borrower and the relevant Lenders of the effective date and the amount of each suchchange in interest rate.
          (b) Each determination of an interest rate by the Administrative Agent pursuant to anyprovision of this Agreement shall be presumptively correct in the absence of manifest error. TheAdministrative Agent shall, at the request of the Borrower, deliver to the Borrower a statementshowing the quotations used by the Administrative Agent in determining any interest rate pursuantto Section 2.15(a).
          2.17 Inability to Determine Interest Rate. If prior to the first day of any InterestPeriod:
          (a) the Administrative Agent shall have determined (which determination shall be conclusiveand binding upon the Borrower) that, by reason of circumstances affecting the relevant market,adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such InterestPeriod, or
          (b) the Administrative Agent shall have received notice from the Majority Facility Lenders inrespect of the relevant Facility that the Eurodollar Rate determined or to be determined for suchInterest Period will not adequately and fairly reflect the cost to such Lenders (as conclusivelycertified by such Lenders) of making or maintaining their affected Loans during such InterestPeriod,
the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and therelevant Lenders as soon as practicable thereafter. If such notice is given (x) any EurodollarLoans under the relevant Facility requested to be made on the first day of such Interest Periodshall be made as Base Rate Loans, (y) any Loans under the relevant Facility that were to have beenconverted on the first day of such Interest Period to Eurodollar Loans shall be continued as BaseRate Loans and (z) any outstanding Eurodollar Loans under the relevant Facility shall be converted,on the last day of the then current Interest Period with respect thereto, to Base Rate Loans.Until such notice has been withdrawn by the Administrative Agent (which the Administrative Agentshall do promptly after the circumstances giving rise to such event no longer exist), no furtherEurodollar Loans under the relevant Facility shall be made or continued as such, nor shall theBorrower have the right to convert Loans under the relevant Facility to Eurodollar Loans.
          2.18 Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from theLenders hereunder, each payment by the Borrower on account of any commitment fee or Letter of

 

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Credit fee, and any reduction of the Commitments of the Lenders, shall be made prorata according to the respective Tranche D Term Loan Percentages or Revolving CreditPercentages, as the case may be, of the relevant Lenders. Each payment (other than prepayments) inrespect of principal or interest in respect of the Tranche D Term Loans and each payment in respectof fees payable hereunder shall be applied to the amounts of such obligations then due and owing tothe Lenders pro rata according to the respective amounts then due and owing to theLenders.
          (b) Each payment (including each prepayment) of outstanding Tranche D Term Loans shall beallocated among the Tranche D Term Loan Lenders holding such Tranche D Term Loans prorata based on the principal amount of such Tranche D Term Loans held by such Tranche D TermLoan Lenders. Each optional prepayment in respect of the Tranche D Term Loans shall be allocatedamong the remaining installments thereof in accordance with the Borrower’s instructions. Eachmandatory prepayment in respect of the Tranche D Term Loans shall be applied to the installments ofsuch Tranche D Term Loans first, in direct order of the next four scheduled installments thereof tobecome due under Section 2.3(a) or (b), and thereafter, pro rata based on theremaining outstandingprincipal amount of the remaining installments. Amounts repaid or prepaid on account of theTranche D Term Loans may not be reborrowed.
          (c) Each payment (including each prepayment) by the Borrower on account of principal of andinterest on the Revolving Credit Loans shall be made pro rata according to therespective outstanding principal amounts of the Revolving Credit Loans then held by the RevolvingCredit Lenders. Each payment in respect of Reimbursement Obligations in respect of any Letter ofCredit shall be made to the Issuing Lender that issued such Letters of Credit.
          (d) The application of any payment of Loans under any Facility (including optional andmandatory prepayments) shall be made, first, to Base Rate Loans under such Facility and,second, to Eurodollar Loans under such Facility. Each payment of the Loans (except in thecase of Swing Line Loans and Revolving Credit Loans that are Base Rate Loans) shall be accompaniedby accrued interest to the date of such payment on the amount paid.
          (e) All payments (including prepayments) to be made by the Borrower hereunder, whether onaccount of principal, interest, fees or otherwise, shall be made without setoff or counterclaim andshall be made prior to 1:00 P.M., New York City time, on the due date thereof to the AdministrativeAgent, for the account of the relevant Lenders, at the Payment Office, in Dollars and inimmediately available funds. Any payment made by the Borrower after 1:00 P.M., New York City time,on any Business Day shall be deemed to have been on the next following Business Day. TheAdministrative Agent shall distribute such payments to the Lenders promptly upon receipt in likefunds as received. If any payment hereunder (other than payments on the Eurodollar Loans) becomesdue and payable on a day other than a Business Day, such payment shall be extended to the nextsucceeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a dayother than a Business Day, the maturity thereof shall be extended to the next succeeding BusinessDay unless the result of such extension would be to extend such payment into another calendarmonth, in which event such payment shall be made on the immediately preceding Business Day. In thecase of any extension of any payment of principal pursuant to the preceding two sentences, interestthereon shall be payable at the then applicable rate during such extension.
          (f) Unless the Administrative Agent shall have been notified in writing by any Lender prior toa borrowing that such Lender will not make the amount that would constitute its share of suchborrowing available to the Administrative Agent, the Administrative Agent may assume that suchLender is making such amount available to the Administrative Agent, and the Administrative Agentmay, in reliance upon such assumption, make available to the Borrower a corresponding amount. Ifsuch


 

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amount is not made available to the Administrative Agent by the required time on the BorrowingDate therefor, such Lender shall pay to the Administrative Agent, on demand, such amount withinterest thereon at a rate equal to the daily average Federal Funds Effective Rate for the perioduntil such Lender makes such amount immediately available to the Administrative Agent. Acertificate of the Administrative Agent submitted to any Lender with respect to any amounts owingunder this paragraph shall be conclusive in the absence of manifest error. If such Lender’s shareof such borrowing is not made available to the Administrative Agent by such Lender within threeBusiness Days after such Borrowing Date, the Administrative Agent shall also be entitled to recoversuch amount with interest thereon at the rate per annum applicable to Base Rate Loans under therelevant Facility, within three Business Days after demand therefor, from the Borrower.
          (g) Unless the Administrative Agent shall have been notified in writing by the Borrower priorto the date of any payment due to be made by the Borrower hereunder that the Borrower will not makesuch payment to the Administrative Agent, the Administrative Agent may assume that the Borrower ismaking such payment, and the Administrative Agent may, but shall not be required to, inreliance upon such assumption, make available to the Lenders their respective prorata shares of a corresponding amount. If such payment is not made to the AdministrativeAgent by the Borrower within three Business Days after such due date, the Administrative Agentshall be entitled to recover, on demand, from each Lender to which any amount which was madeavailable pursuant to the preceding sentence, such amount with interest thereon at the rate perannum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed tolimit the rights of the Administrative Agent or any Lender against the Borrower.
          2.19 Requirements of Law. (a) If the adoption of or any change in any Requirement ofLaw or in the interpretation or application thereof or compliance by any Lender with any request ordirective (whether or not having the force of law) from any central bank or other GovernmentalAuthority first made subsequent to the date hereof:
  (i)   shall subject any Lender to any tax of any kindwhatsoever with respect to this Agreement, any Letter of Credit, anyApplication or any Eurodollar Loan made by it, or change the basis oftaxation of payments to such Lender in respect thereof (except forNon-Excluded Taxes covered by Section 2.20 and changes in the rate oftax on the overall net income, or net profits or capital (if either isimposed in lieu of net income taxes), of such Lender);
 
  (ii)   shall impose, modify or hold applicable anyreserve, special deposit, compulsory loan or similar requirementagainst assets held by, deposits or other liabilities in or for theaccount of, advances, loans or other extensions of credit by, or anyother acquisition of funds by, any office of such Lender that is nototherwise included in the determination of the Eurodollar Ratehereunder; or
 
  (iii)   shall impose on such Lender any othercondition;
and the result of any of the foregoing is to increase the cost to such Lender, by an amount whichsuch Lender reasonably deems to be material, of making, converting into, continuing or maintainingEurodollar Loans or issuing or participating in Letters of Credit, or to reduce any amountreceivable hereunder in respect thereof, then, in any such case, the Borrower shall promptly paysuch Lender, within 30 days after receipt of a reasonably detailed request therefor, any additionalamounts necessary to compensate such Lender for such increased cost or reduced amount receivable.If any Lender becomes entitled to claim

 

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any additional amounts pursuant to this Section, it shallpromptly notify the Borrower (with a copy to the Administrative Agent) of the event by reason ofwhich it has become so entitled.
          (b) If any Lender shall have determined that the adoption of or any change in any Requirementof Law regarding capital adequacy or in the interpretation or application thereof or compliance bysuch Lender or any corporation controlling such Lender with any request or directive regardingcapital adequacy (whether or not having the force of law) from any Governmental Authority firstmade subsequent to the date hereof shall have the effect of reducing the rate of return on suchLender’s or such corporation’s capital as a consequence of its obligations hereunder or under or inrespect of any Letter of Credit to a level below that which such Lender or such corporation couldhave achieved but for such adoption, change or compliance (taking into consideration such Lender’sor such corporation’s policies with respect to capital adequacy) by an amount deemed by such Lenderto be material, then from time to time, within 30 days after submission by such Lender to theBorrower of areasonably detailed request therefor (with a copy to the Administrative Agent) of a writtenrequest therefor, the Borrower shall pay to such Lender such additional amount or amounts as willcompensate such Lender or such corporation for such reduction; provided that the Borrowershall not be required to compensate a Lender pursuant to this paragraph for any amounts incurredmore than six months prior to the date that such Lender notifies the Borrower of such Lender’sintention to claim compensation therefor; and provided further that, if thecircumstances giving rise to such claim have a retroactive effect, then such six-month period shallbe extended to include the period of such retroactive effect.
          (c) A certificate as to any additional amounts payable pursuant to this Section submitted byany Lender to the Borrower (with a copy to the Administrative Agent) shall be conclusive in theabsence of manifest error. The obligations of the Borrower pursuant to this Section shall survivethe termination of this Agreement and the payment of the Loans and all other amounts payablehereunder.
          2.20 Taxes. (a) Except as required by applicable law, all payments made by theBorrower under this Agreement to any Agent or Lender shall be made free and clear of, and withoutdeduction or withholding for or on account of, any present or future income, stamp or other taxes,levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed,levied, collected, withheld or assessed by any Governmental Authority, excluding income taxes andfranchise taxes imposed on or measured by any Agent’s or Lender’s net income, or net profits orcapital if either is imposed in lieu of net income taxes, as a result of a present or formerconnection between such Agent or such Lender and the jurisdiction of the Governmental Authorityimposing such tax or any political subdivision or taxing authority thereof or therein (other thanany such connection arising solely from such Agent’s or such Lender’s having executed, delivered orperformed its obligations or received a payment under, or enforced, this Agreement or any otherLoan Document). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductionsor withholdings (“Non-Excluded Taxes”) or any Other Taxes are required to be withheld fromany amounts payable to any Agent or any Lender hereunder, the amounts so payable to such Agent orsuch Lender shall be increased to the extent necessary to yield to such Agent or such Lender (afterpayment of all Non-Excluded Taxes and Other Taxes) interest or any such other amounts payablehereunder at the rates or in the amounts specified in this Agreement; provided,however, that the Borrower shall not be required to increase any such amounts payable toany Agent or any Lender with respect to any Non-Excluded Taxes (i) that are attributable to suchAgent or Lender’s failure to comply with the requirements of paragraph (d) or (e) of this Sectionor (ii) that are United States withholding taxes imposed on amounts payable to such Agent or Lenderat the time such Agent or Lender becomes a party to this Agreement, except to the extent that suchAgent’s or Lender’s assignor (if any) was entitled, at the time of assignment, to receiveadditional amounts from the Borrower with respect to such Non-Excluded Taxes pursuant to thisparagraph (a).

 

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          (b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authorityin accordance with applicable law.
          (c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the Borrower, as promptly asreasonably possible thereafter the Borrower shall send to the Administrative Agent for the accountof the relevant Agent or Lender, as the case may be, (i) a certified copy of an original officialreceipt received by the Borrower showing payment thereof or (ii) if the Borrower determines that itis unable to provide a certified copy of such receipt, a certificate as to the amount of suchpayment. If the Borrower fails to pay any Non-Excluded Taxes or Other Taxes when due to theappropriate taxing authority or fails to remit to the Administrative Agent copies of the requiredreceipts or other required documentary evidence, the Borrower shall indemnify the Agents and theLenders for any incremental taxes, interest or penalties that may become payable by any Agent orany Lender as a result of any suchfailure. The agreements in this Section shall survive the termination of this Agreement andthe payment of the Loans and all other amounts payable hereunder.
          (d) Each Lender (or Transferee) that is not a United States person as defined in Section7701(a)(30) of the Code (a “Non-U.S. Lender”) shall deliver to the Borrower and theAdministrative Agent (or, in the case of a Participant, to the Borrower and the Lender from whichthe related participation shall have been purchased) two copies of either U.S. Internal RevenueService Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the UnitedStates is a party or Form W-8ECI, or, 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” a statement substantially in the form of Exhibit H and two copies of FormW-8BEN, or any subsequent versions thereof or successors thereto properly completed and dulyexecuted by such Non-U.S. Lender claiming complete exemption from, or a reduced rate of, U.S.federal withholding tax on all payments by the Borrower under this Agreement and the other LoanDocuments. Such forms shall be delivered by each Non-U.S. Lender on or before the date it becomesa party to this Agreement (or, in the case of any Participant, on or before the date suchParticipant purchases the related participation). In addition, each Non-U.S. Lender agrees that itwill deliver to the Borrower (and the Administrative Agent) updated versions of the foregoingdocumentation and such other forms as may be required to confirm or establish the entitlement ofthe Non-U.S. Lender to a continued exemption from or reduction in withholding tax with respect topayments under this Agreement or under any Loan Document and each Non-U.S. Lender shall deliversuch forms promptly upon the obsolescence or invalidity of any form previously delivered by suchNon-U.S. Lender. Each Non-U.S. Lender shall promptly notify the Borrower at any time it determinesthat it is no longer in a position to provide any previously delivered certificate to the Borrower(or any other form of certification adopted by the U.S. taxing authorities for such purpose).Notwithstanding any other provision of this paragraph, a Non-U.S. Lender shall not be required todeliver any form pursuant to this paragraph that such Non-U.S. Lender is not legally able todeliver.
          (e) A Lender that is entitled to an exemption from or reduction of non-U.S. withholding taxunder the law of the jurisdiction in which the Borrower is located, or any treaty to which suchjurisdiction is a party, with respect to payments under this Agreement shall deliver to theBorrower (with a copy to the Administrative Agent), at the time or times prescribed by applicablelaw or reasonably requested by the Borrower, such properly completed and executed documentationprescribed by applicable law as will permit such payments to be made without withholding or at areduced rate, provided that such Lender is legally entitled to complete, execute anddeliver such documentation and in such Lender’s reasonable judgment such completion, execution orsubmission would not materially prejudice the legal position of such Lender.
          (f) Any Lender that is United States person as defined in section 7701(a)(30) of the Codeshall deliver to the Borrower (with a copy to the Administrative Agent) a statement signed by an


 

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authorized signatory of the Lender that it is a United States person and, if necessary to avoidU.S. backup withholding, a duly completed and signed Internal Revenue Service Form W-9 (orsuccessor form) establishing that the Lender is organized under the laws of the United States andis not subject to backup withholding.
          (g) If any Agent or Lender determines, in its good faith judgment, that it has received arefund of, any Non-Excluded Taxes or Other Taxes as to which it has been indemnified by theBorrower or with respect to which the Borrower has paid additional amounts pursuant to Section2.20(a) or Section 2.20(b), it shall pay over such refund to the Borrower within thirty BusinessDays of the receipt of such refund to the extent that it determines that it can do so withoutprejudice to the retention of such refund; provided, however, that the Borrower agrees promptly toreturn such refund (together with any interest with respect thereto due to the relevant taxingauthority) (free of all Non-Excluded Taxes) to theapplicable Agent or Lender, as the case may be, upon receipt of a notice that such refund isrequired to be repaid to the relevant taxing authority. This section shall not be construed torequire any Agent or Lender to make available its tax returns (or any other information relating toits taxes that it deems confidential) to the Borrower or to any other Person.
          2.21 Indemnity. The Borrower agrees to indemnify each Lender for, and to hold eachLender harmless from, any loss or expense that such Lender may actually sustain or incur as aconsequence of (a) default by the Borrower in making a borrowing of, conversion into orcontinuation of Eurodollar Loans after the Borrower has given a notice requesting the same inaccordance with the provisions of this Agreement (other than by operation of Section 2.17 or 2.22),(b) default by the Borrower in making any prepayment after the Borrower has given a notice thereofin accordance with the provisions of this Agreement (whether or not such notice has been revoked orwithdrawn by the Borrower) or (c) the making of a prepayment or conversion of Eurodollar Loans on aday that is not the last day of an Interest Period with respect thereto, other than any conversionof a Tranche C Term Loan that is a Eurodollar Loan to a Tranche D Term Loan on the Closing Date. Acertificate as to any amounts payable pursuant to this Section submitted to the Borrower by anyLender shall be conclusive in the absence of manifest error. This covenant shall survive thetermination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
          2.22 Illegality. Notwithstanding any other provision herein, if the adoption afterthe date hereof of, or any change after the date hereof in, any Requirement of Law or in theinterpretation or application thereof shall make it unlawful for any Lender to make or maintainEurodollar Loans as contemplated by this Agreement, (a) the commitment of such Lender hereunder tomake Eurodollar Loans, continue Eurodollar Loans as such and convert Base Rate Loans to EurodollarLoans shall forthwith be suspended until such time as it is no longer unlawful for such Lender tomake or maintain Eurodollar Loans as contemplated by this Agreement and (b) such Lender’s Loansthen outstanding as Eurodollar Loans, if any, shall be converted automatically to Base Rate Loanson the respective last days of the then current Interest Periods with respect to such Loans orwithin such earlier period as required by law. If any such conversion of a Eurodollar Loan occurson a day which is not the last day of the then current Interest Period with respect thereto, theBorrower shall pay to such Lender such amounts, if any, as may be required pursuant to Section2.21.
          2.23 Change of Lending Office. Each Lender agrees that, upon the occurrence of anyevent giving rise to the operation of Section 2.19, 2.20(a) or 2.22 with respect to such Lender, itwill, if requested by the Borrower, use reasonable efforts (subject to overall policyconsiderations of such Lender) to designate another lending office for any Loans affected by suchevent with the object of avoiding the consequences of such event; provided, that suchdesignation is made on terms that, in the sole judgment of such Lender, cause such Lender and itslending office(s) to suffer no economic, legal or


 

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regulatory disadvantage, and provided,further, that nothing in this Section shall affect or postpone any of the obligations ofany Borrower or the rights of any Lender pursuant to Section 2.19, 2.20(a) or 2.22.
          2.24 Replacement of Lenders under Certain Circumstances. The Borrower shall bepermitted to replace with a replacement financial institution any Lender (a) that requestsreimbursement for amounts owing pursuant to Section 2.19 or 2.20 or gives anotice of illegality pursuant to Section 2.22, (b) that defaults in its obligation to makeLoans hereunder or (c) that has refused to consent to any waiver or amendment with respect to anyLoan Document that has been consented to by the Required Lenders; provided that (i) suchreplacement does not conflict with any Requirement of Law, (ii) prior to any such replacementpursuant to clause (a) above, such Lender shall have taken no action under Section 2.23 so as toeliminate the continued need for payment of amounts owing pursuant to Section 2.19 or 2.20 or toeliminate the illegality referred to in such notice of illegality given pursuant to Section 2.22,(iii) the replacement financial institution shall purchase, at par, all Loans and other amountsowing to such replaced Lender on or prior to the date of replacement, (iv) the Borrower shall beliable to such replaced Lender under Section 2.21 (as though Section 2.21 were applicable) if anyEurodollar Loan owing to such replaced Lender shall be purchased other than on the last day of theInterest Period relating thereto, (v) the replacement financial institution, if not already aLender, shall be reasonably satisfactory to the Administrative Agent, (vi) the replaced Lendershall be obligated to make such replacement in accordance with the provisions of Section 10.6(provided that the Borrower or the assignee Lender shall be obligated to pay the registration andprocessing fee referred to therein), (vii) the Borrower shall pay all additional amounts (if any)required pursuant to Section 2.19 or 2.20, as the case may be, in respect of any period prior tothe date on which such replacement shall be consummated, and (viii) any such replacement shall notbe deemed to be a waiver of any rights that the Borrower, the Administrative Agent or any otherLender shall have against the replaced Lender.
SECTION 3. LETTERS OF CREDIT
          3.1 L/C Commitment. (a) Subject to the terms and conditions hereof, each IssuingLender, in reliance on the agreements of the other Revolving Credit Lenders set forth in Section3.4(a), agrees to issue letters of credit (“Letters of Credit”) for the account of theBorrower, or for the joint and several account of the Borrower and any Subsidiary, on any BusinessDay during the Revolving Credit Commitment Period in such form as may be approved from time to timeby such Issuing Lender; provided, that no Issuing Lender shall have any obligation to issueany Letter of Credit if, after giving effect to such issuance, (i) the L/C Obligations would exceedthe L/C Commitment or (ii) the aggregate amount of the Available Revolving Credit Commitments wouldbe less than zero. Each Letter of Credit shall (i) be denominated in Dollars and (ii) expire nolater than the earlier of (x) the first anniversary of its date of issuance and (y) the date whichis three Business Days prior to the Revolving Credit Termination Date; provided that anyLetter of Credit with a one-year term may provide for the renewal thereof for additional one-yearperiods (which shall in no event extend beyond the date referred to in clause (y) above). AnyLetter of Credit (as defined in the Existing Credit Agreement) that remains outstanding on theClosing Date shall continue to be a Letter of Credit hereunder.
          (b) No Issuing Lender shall at any time be obligated to issue any Letter of Credit hereunderif such issuance would conflict with any applicable Requirement of Law.
          3.2 Procedure for Issuance of Letter of Credit. The Borrower may from time to timerequest that an Issuing Lender issue a Letter of Credit by delivering to such Issuing Lender at itsaddress for notices specified herein an Application with a copy to the Administrative Agenttherefor, completed to the reasonable satisfaction of such Issuing Lender, and such othercertificates, documents and other papers and information as such Issuing Lender may reasonablyrequest. Upon receipt of any Application, an Issuing Lender will process such Application and thecertificates, documents and other papers and


 

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information delivered to it in connection therewith inaccordance with its customary procedures and shall promptly issue the Letter of Credit requestedthereby by issuing the original of such Letter of Credit to the beneficiary thereof or as otherwisemay be agreed to by such Issuing Lender and the Borrower (but in no event shall any IssuingLender be required to issue any Letter of Credit earlier than three Business Days after its receiptof the Application with a copy to the Administrative Agent therefor and all such othercertificates, documents and other papers and information relating thereto). Promptly afterissuance by an Issuing Lender of a Letter of Credit, such Issuing Lender shall furnish a copy ofsuch Letter of Credit to the Borrower. Each Issuing Lender shall promptly give notice to theAdministrative Agent of the issuance of each Letter of Credit issued by such Issuing Lender(including the amount thereof).
          3.3 Fees and Other Charges. (a) The Borrower will pay a fee on the aggregatedrawable amount of all outstanding Letters of Credit at a per annum rate equal to the ApplicableMargin then in effect with respect to Eurodollar Loans under the Revolving Credit Facility (lessthe percentage per annum at which the Fronting Fee (as defined below) is paid in respect of suchLetter of Credit), shared ratably among the Revolving Credit Lenders in accordance with theirrespective Revolving Credit Percentages and payable quarterly in arrears on each L/C Fee PaymentDate after the issuance date. In addition, the Borrower shall pay to the relevant Issuing Lenderfor its own account a fronting fee (the “Fronting Fee”) on the aggregate drawable amount ofall outstanding Letters of Credit issued by it of 0.25% per annum, payable quarterly in arrears oneach L/C Fee Payment Date after the issuance date.
          (b) In addition to the foregoing fees, the Borrower shall pay or reimburse each Issuing Lenderfor such normal and customary costs and expenses as are incurred or charged by such Issuing Lenderin issuing, negotiating, effecting payment under, amending or otherwise administering any Letter ofCredit.
          3.4 L/C Participations. (a) Each Issuing Lender irrevocably agrees to grant andhereby grants to each L/C Participant, and, to induce each Issuing Lender to issue Letters ofCredit hereunder, each L/C Participant irrevocably agrees to accept and purchase and hereby acceptsand purchases from each Issuing Lender, on the terms and conditions hereinafter stated, for suchL/C Participant’s own account and risk, an undivided interest equal to such L/C Participant’sRevolving Credit Percentage in each Issuing Lender’s obligations and rights under each Letter ofCredit issued by such Issuing Lender hereunder and the amount of each draft paid by such IssuingLender thereunder. Each L/C Participant unconditionally and irrevocably agrees with each IssuingLender that, if a draft is paid under any Letter of Credit issued by such Issuing Lender for whichsuch Issuing Lender is not reimbursed in full by the Borrower in accordance with the terms of thisAgreement, such L/C Participant shall pay to such Issuing Lender upon demand at such IssuingLender’s address for notices specified herein an amount equal to such L/C Participant’s RevolvingCredit Percentage of the amount of such draft, or any part thereof, that is not so reimbursed.
          (b) If any amount required to be paid by any L/C Participant to an Issuing Lender pursuant toSection 3.4(a) in respect of any unreimbursed portion of any payment made by such Issuing Lenderunder any Letter of Credit is paid to such Issuing Lender within three Business Days after the datesuch payment is due, such L/C Participant shall pay to such Issuing Lender on demand an amountequal to the product of (i) such amount, times (ii) the daily average Federal Funds Effective Rateduring the period from and including the date such payment is required to the date on which suchpayment is immediately available to such Issuing Lender, times (iii) a fraction the numerator ofwhich is the number of days that elapse during such period and the denominator of which is 360. Ifany such amount required to be paid by any L/C Participant pursuant to Section 3.4(a) is not madeavailable to such Issuing Lender by such L/C Participant within three Business Days after the datesuch payment is due, such Issuing Lender shall be entitled to recover from such L/C Participant, ondemand, such amount with interest thereon calculatedfrom such due date at the rate per annum applicable to Base Rate Loans under the RevolvingCredit


 

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Facility. A certificate of such Issuing Lender submitted to any L/C Participant withrespect to any such amounts owing under this Section shall be conclusive in the absence of manifesterror.
          (c) Whenever, at any time after an Issuing Lender has made payment under any Letter of Creditand has received from any L/C Participant its pro rata share of such payment inaccordance with Section 3.4(a), such Issuing Lender receives any payment related to such Letter ofCredit (whether directly from the Borrower or otherwise, including proceeds of collateral appliedthereto by such Issuing Lender), or any payment of interest on account thereof, such Issuing Lenderwill distribute to such L/C Participant its pro rata share thereof;provided, however, that in the event that any such payment received by such IssuingLender shall be required to be returned by such Issuing Lender, such L/C Participant shall returnto such Issuing Lender the portion thereof previously distributed by such Issuing Lender to it.
          3.5 Reimbursement Obligation of the Borrower. The Borrower agrees to reimburse eachIssuing Lender, on each date on which such Issuing Lender notifies the Borrower of the date andamount of a draft presented under any Letter of Credit and paid by such Issuing Lender, for theamount of (a) such draft so paid and (b) any taxes, fees, charges or other costs or expensesincurred by such Issuing Lender in connection with such payment (the amounts described in theforegoing clauses (a) and (b) in respect of any drawing, collectively, the “PaymentAmount”). Each such payment shall be made to such Issuing Lender at its address for noticesspecified herein in lawful money of the United States of America and in immediately availablefunds. Interest shall be payable on each Payment Amount from the date of the applicable drawinguntil payment in full at the rate set forth in (i) until the third Business Day following the dateof the applicable drawing, Section 2.15(b) and (ii) thereafter, Section 2.15(c). Each drawingunder any Letter of Credit shall (unless an event of the type described in clause (i) or (ii) ofSection 8(f) shall have occurred and be continuing with respect to the Borrower, in which case theprocedures specified in Section 3.4 for funding by L/C Participants shall apply, or unless theBorrower otherwise notifies the Administrative Agent and the relevant Issuing Lender and reimbursessuch Issuing Lender before a Loan would otherwise be made pursuant to this sentence) constitute arequest by the Borrower to the Administrative Agent for a borrowing pursuant to Section 2.5 of BaseRate Loans (or, at the option of the Administrative Agent and the Swing Line Lender in their solediscretion, a borrowing pursuant to Section 2.7 of Swing Line Loans) in the amount of such drawing.The Borrowing Date with respect to such borrowing shall be the first date on which a borrowing ofRevolving Credit Loans (or, if applicable, Swing Line Loans) could be made, pursuant to Section 2.5(or, if applicable, Section 2.7), if the Administrative Agent had received a notice of suchborrowing at the time the Administrative Agent receives notice from the relevant Issuing Lender ofsuch drawing under such Letter of Credit.
          3.6 Obligations Absolute. The Borrower’s obligations under this Section 3 shall beabsolute and unconditional under any and all circumstances and irrespective of any setoff,counterclaim or defense to payment that the Borrower may have or have had against any IssuingLender, any beneficiary of a Letter of Credit or any other Person. The Borrower also agrees witheach Issuing Lender that, unless resulting from the gross negligence or willful misconduct of suchIssuing Lender, such Issuing Lender shall not be responsible for, and the Borrower’s ReimbursementObligations under Section 3.5 shall not be affected by, among other things, the validity orgenuineness of documents or of any endorsements thereon, even though such documents shall in factprove to be invalid, fraudulent or forged, or any dispute between or among the Borrower and anybeneficiary of any Letter of Credit or any other party to which such Letter of Credit may betransferred or any claims whatsoever of the Borrower against any beneficiary of suchLetter of Credit or any such transferee. No Issuing Lender shall be liable for any error,omission, interruption or delay in transmission, dispatch or delivery of any message or advice,however transmitted, in connection with any Letter of Credit, except for errors or omissions foundby a final and nonappealable decision of a court of competent jurisdiction to have resulted fromthe gross negligence or willful misconduct of such Issuing Lender. The Borrower agrees that anyaction taken or


 

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omitted by an Issuing Lender under or in connection with any Letter of Creditissued by it or the related drafts or documents, if done in the absence of gross negligence orwillful misconduct and in accordance with the standards or care specified in the Uniform CommercialCode of the State of New York, shall be binding on the Borrower and shall not result in anyliability of such Issuing Lender to the Borrower.
          3.7 Letter of Credit Payments. If any draft shall be presented for payment under anyLetter of Credit, the relevant Issuing Lender shall promptly notify the Borrower of the date andamount thereof. The responsibility of the relevant Issuing Lender to the Borrower in connectionwith any draft presented for payment under any Letter of Credit, in addition to any paymentobligation expressly provided for in such Letter of Credit issued by such Issuing Lender, shall belimited to determining that the documents (including each draft) delivered under such Letter ofCredit in connection with such presentment appear on their face to be in conformity with suchLetter of Credit.
          3.8 Applications. To the extent that any provision of any Application related to anyLetter of Credit is inconsistent with the provisions of this Section 3, the provisions of thisSection 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
          To induce the Agents and the Lenders to enter into this Agreement and to make the Loans andissue or participate in the Letters of Credit, the Borrower hereby represents and warrants to eachAgent and each Lender that, as of the Closing Date (after giving effect to the Acquisition, exceptas otherwise specified herein) and as of any other date on which the representations and warrantiesset forth in this Section 4 are repeated pursuant to Section 5.2:
          4.1 Financial Condition. (a) The unaudited pro forma consolidatedbalance sheet of the Borrower and its consolidated Subsidiaries as at December 31, 2005 (includingthe notes thereto) (the “Pro Forma Balance Sheet”), copies of which have heretofore beenfurnished to each Lender, has been prepared giving effect (as if such events had occurred on suchdate) to (i) the consummation of the Acquisition, (ii) the Loans to be made on the Closing Date andthe use of proceeds thereof and (iii) the payment of fees and expenses in connection with theforegoing. The Pro Forma Balance Sheet has been prepared based on information believed by theBorrower to be reasonable and correct as of the date of delivery thereof, and presents fairly theBorrower’s good faith estimate on a pro forma basis of the financial position ofBorrower and its consolidated Subsidiaries as at December 31, 2005, assuming that the eventsspecified in the preceding sentence had actually occurred at such date.
          (b) Without giving effect to the Acquisition, the audited consolidated balance sheet of theBorrower and its consolidated Subsidiaries as at December 31, 2005, and the related consolidatedstatements of income and of cash flows for the fiscal year ended on such date, reported on by andaccompanied by an unqualified report from Grant Thornton, present fairly in all material respectsthe consolidated financial condition of the Borrower as at such date, and the consolidated resultsof itsoperations and its consolidated cash flows for the fiscal year then ended. All such financialstatements, including the related schedules and notes thereto, have been prepared in accordancewith GAAP applied consistently throughout the periods involved (except as approved by theaforementioned firm of accountants and disclosed therein). During the period from December 31,2005 to and including the date hereof there has been no Disposition by the Borrower of any materialpart of its business or Property, other than as permitted by the Existing Credit Agreement.
          (c) The audited consolidated balance sheet of the Target and its consolidated Subsidiaries asat December 31, 2005, and the related consolidated statements of income and of cash flows for thefiscal year ended on such date, reported on by and accompanied by an unqualified report


 

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from Ernst& Young, present fairly in all material respects the consolidated financial condition of the Targetas at such date, and the consolidated results of its operations and its consolidated cash flows forthe fiscal year then ended. All such financial statements, including the related schedules andnotes thereto, have been prepared in accordance with GAAP applied consistently throughout theperiods involved (except as approved by the aforementioned firm of accountants and disclosedtherein). During the period from December 31, 2005 to and including the date hereof there has beenno Disposition by the Target of any material part of its business or Property, other than in theordinary course of business as permitted by the Acquisition Agreement.
          4.2 No Change. Since December 31, 2005 there has been no development or event thathas had or could reasonably be expected to have a Material Adverse Effect.
          4.3 Corporate Existence; Compliance with Law. Each of Holdings, the Borrower and itsSubsidiaries (a) is duly organized, validly existing and in good standing under the laws of thejurisdiction of its organization, (b) has the corporate power and authority, and the legal right,to own and operate its Property, to lease the Property it operates as lessee and to conduct thebusiness in which it is currently engaged, (c) is duly qualified as a foreign corporation and ingood standing under the laws of each jurisdiction where its ownership, lease or operation ofProperty or the conduct of its business requires such qualification and (d) is in compliance withall Requirements of Law, except, in the case of the foregoing clauses (c) and (d), to the extentthat the failure to be so qualified or to comply with such Requirements of Law, as the case may be,could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
          4.4 Power; Authorization; Enforceable Obligations. Each Loan Party has the corporateor other power and authority, and the legal right, to make, deliver and perform the Loan Documentsto which it is a party and, in the case of the Borrower, to borrow hereunder. Each Loan Party hastaken all necessary corporate or other organizational action to authorize the execution, deliveryand performance of the Loan Documents to which it is a party and, in the case of the Borrower, toauthorize the borrowings on the terms and conditions of this Agreement. Except as could notreasonably be expected to have a Material Adverse Effect, no consent or authorization of, filingwith, notice to or other act by or in respect of, any Governmental Authority or any other Person isrequired in connection with the Acquisition, the borrowings hereunder or the execution, delivery,performance, validity or enforceability of this Agreement or any of the other Loan Documents,except (i) consents, authorizations, filings and notices described in Schedule 4.4, which consents,authorizations, filings and notices have been obtained or made and are in full force and effect and(ii) the filings referred to in Section 4.19. Each Loan Document has been duly executed anddelivered on behalf of each Loan Party that is a party thereto. This Agreement constitutes, andeach other Loan Documentupon execution will constitute, a legal, valid and binding obligation of each Loan Party thatis a party thereto, enforceable against each such Loan Party in accordance with its terms, exceptas enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratoriumor similar laws affecting the enforcement of creditors’ rights generally and by general equitableprinciples (whether enforcement is sought by proceedings in equity or at law).
          4.5 No Legal Bar. The execution, delivery and performance of this Agreement and theother Loan Documents, the issuance of Letters of Credit, the borrowings hereunder and the use ofthe proceeds thereof (a) will not violate the Organizational Documents of any of the Loan Partiesor (b) except as could not reasonably be expected to have a Material Adverse Effect, violate anyRequirement of Law applicable to, or any Contractual Obligation of, Holdings, the Borrower or anyof its Subsidiaries, or result in, or require, the creation or imposition of any Lien on any oftheir respective properties or revenues pursuant to any Requirement of Law or any such ContractualObligation (other than the Liens created by the Security Documents).

 

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          4.6 No Material Litigation. Except as set forth on Schedule 4.6, no litigation,investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, tothe knowledge of the Borrower, threatened by or against Holdings, the Borrower or any of itsSubsidiaries or against any of their respective properties or revenues (a) with respect to any ofthe Loan Documents or any of the transactions contemplated hereby or thereby, or (b) that couldreasonably be expected to have a Material Adverse Effect.
          4.7 No Default. No Default or Event of Default has occurred and is continuing.
          4.8 Ownership of Property; Liens. Each of the Borrower and each of its Subsidiarieshas title in fee simple to, or a valid leasehold interest in, all its real property, and good titleto, or a valid leasehold interest in, all its other Property, in each case, except where thefailure to do so would not have a Material Adverse Effect, and none of such Property is subject toany Lien except as permitted by Section 7.3.
          4.9 Intellectual Property. Except as all of the following in the aggregate could notreasonably be expected to have a Material Adverse Effect: (a) the Borrower and each of itsSubsidiaries owns, or is licensed to use, all Intellectual Property necessary for the conduct ofits business as currently conducted; (b) no material claim has been asserted and is pending by anyPerson challenging or questioning the use of any material Intellectual Property of the Borrower orits Subsidiaries or the validity or effectiveness of any such material Intellectual Property; and(c) the use of Intellectual Property by the Borrower and its Subsidiaries does not infringe on therights of any Person.
          4.10 Taxes. Each of the Borrower and each of its Subsidiaries has filed or caused tobe filed all material tax returns that are required to be filed and has paid all taxes shown to bedue and payable onsaid returns and all other material taxes, fees or other charges imposed on it or any of itsProperty by any Governmental Authority (other than any the amount or validity of which arecurrently being contested in good faith by appropriate proceedings and with respect to which anyreserves required in conformity with GAAP have been provided on the books of the Borrower or itsSubsidiaries, as the case may be). To the knowledge of the Borrower, no claim is being assertedwith respect to any such tax, fee or other charge described in the proceeding sentence, except ascould not reasonably be expected to have a Material Adverse Effect.
          4.11 Federal Regulations. No part of the proceeds of any Loans will be used for“purchasing” or “carrying” any “margin stock” within the respective meanings of each of the quotedterms under Regulation U as now and from time to time hereafter in effect or for any purpose thatviolates the provisions of the Regulations of the Board. If requested by any Lender (through theAdministrative Agent) or the Administrative Agent, the Borrower will furnish to the AdministrativeAgent and each Lender a statement to the foregoing effect in conformity with the requirements of FRForm G-3 or FR Form U-1 referred to in Regulation U.
          4.12 Labor Matters. There are no strikes or other labor disputes against the Borroweror any of its Subsidiaries pending or, to the knowledge of the Borrower, threatened that(individually or in the aggregate) could reasonably be expected to have a Material Adverse Effect.Hours worked by and payment made to employees of the Borrower and its Subsidiaries have not been inviolation of the Fair Labor Standards Act or any other applicable Requirement of Law dealing withsuch matters that (individually or in the aggregate) could reasonably be expected to have aMaterial Adverse Effect. All payments due from the Borrower or any of its Subsidiaries on accountof employee health and welfare insurance that (individually or in the aggregate) could reasonablybe expected to have a Material Adverse Effect if not paid have been paid or accrued as a liabilityon the books of the Borrower or the relevant Subsidiary.

 

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          4.13 ERISA. Other than exceptions to any of the following that could not,individually or in the aggregate, reasonably be expected to have a Material Adverse Effect: (a)neither a Reportable Event nor an “accumulated funding deficiency” (within the meaning of Section412 of the Code or Section 302 of ERISA) has occurred during the five-year period prior to the dateon which this representation is made or deemed made with respect to any Plan, and each Plan hascomplied in all respects with the applicable provisions of ERISA and the Code; (b) no terminationof a Single Employer Plan has occurred, and no Lien in favor of the PBGC or a Plan has arisen,during such five-year period; (c) the present value of all accrued benefits under each SingleEmployer Plan (based on those assumptions used to fund such Plans) did not, as of the last annualvaluation date prior to the date on which this representation is made or deemed made, exceed thevalue of the assets of such Plan allocable to such accrued benefits; (d) neither the Borrower norany Commonly Controlled Entity has had a complete or partial withdrawal from any Multiemployer Planthat has resulted or could reasonably be expected to result in a liability under ERISA; and (e) nosuch Multiemployer Plan is in Reorganization or Insolvent.
          4.14 Investment Company Act; Other Regulations. No Loan Party is an “investmentcompany”, or a company “controlled” by an “investment company”, within the meaning of theInvestment Company Act of 1940, as amended. NoLoan Party is subject to regulation under any Requirement of Law which limits its ability toincur the Indebtedness to be incurred by it hereunder and under the other Loan Documents.
          4.15 Subsidiaries. (a) The Subsidiaries listed on Schedule 4.15 constitute all theSubsidiaries of Holdings and the Borrower as of the Closing Date. Schedule 4.15 sets forth as ofthe Closing Date the name and jurisdiction of incorporation of each Subsidiary and, as to eachSubsidiary, the percentage of each class of Capital Stock owned by each Loan Party.
          (b) As of the Closing Date, there are no outstanding subscriptions, options, warrants, calls,rights or other agreements or commitments (other than stock options granted to employees ordirectors and directors’ qualifying shares) of any nature relating to any Capital Stock ofHoldings, the Borrower or any Subsidiary, except as disclosed on Schedule 4.15.
          4.16 Use of Proceeds. The proceeds of the Revolving Credit Loans and the Swing LineLoans, and the Letters of Credit, shall be used for general corporate purposes. The proceeds ofthe Tranche D Term Loans shall be used to finance the Acquisition (and related expenses), refinancecertain Indebtedness of the Target and its Subsidiaries and to prepay the Tranche C Term Loansoutstanding on the Closing Date that are not converted to Tranche D Term Loans.
          4.17 Environmental Matters. Other than exceptions to any of the following that couldnot, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect:
          (a) The Borrower and its Subsidiaries: (i) are, and within the period of all applicablestatutes of limitation have been, in compliance with all applicable Environmental Laws; (ii) holdall Environmental Permits (each of which is in full force and effect) required for any of theircurrent operations or for any property owned, leased, or otherwise operated by any of them; and(iii) are, and within the period of all applicable statutes of limitation have been, in compliancewith all of their Environmental Permits.
          (b) Materials of Environmental Concern are not present at, on, under, in, or about any realproperty now or formerly owned, leased or operated by the Borrower or any of its Subsidiaries, orat any other location (including, without limitation, any location to which Materials ofEnvironmental Concern have been sent for re-use or recycling or for treatment, storage, ordisposal) which could reasonably be expected to (i) give rise to liability of the Borrower or anyof its Subsidiaries under any

 

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applicable Environmental Law or otherwise result in costs to theBorrower or any of its Subsidiaries, or (ii) interfere with the Borrower’s or any of itsSubsidiaries’ continued operations, or (iii) impair the fair saleable value of any real propertyowned or leased by the Borrower or any of its Subsidiaries.
          (c) There is no judicial, administrative, or arbitral proceeding (including any notice ofviolation or alleged violation) under or relating to any Environmental Law to which the Borrower orany of its Subsidiaries is, or to the knowledge of the Borrower or any of its Subsidiaries will be,named as a party that is pending or, to the knowledge of the Borrower or any of its Subsidiaries,threatened.
          (d) Neither the Borrower nor any of its Subsidiaries has received any written request forinformation, or been notified that it is a potentially responsible party under or relating to thefederalComprehensive Environmental Response, Compensation, and Liability Act or any similarEnvironmental Law, or with respect to any Materials of Environmental Concern.
          (e) Neither the Borrower nor any of its Subsidiaries has entered into or agreed to any consentdecree, order, or settlement or other agreement, or is subject to any judgment, decree, or order orother agreement, in any judicial, administrative, arbitral, or other forum for dispute resolution,relating to compliance with or liability under any Environmental Law.
          (f) Neither the Borrower nor any of its Subsidiaries has assumed or retained, by contract oroperation of law, any liabilities of any kind, fixed or contingent, known or unknown, under anyEnvironmental Law or with respect to any Materials of Environmental Concern.
          4.18 Accuracy of Information, etc. No statement or information contained in thisAgreement, any other Loan Document or any certificate furnished to the Administrative Agent or theLenders or any of them, by or on behalf of any Loan Party for use in connection with thetransactions contemplated by this Agreement or the other Loan Documents, when taken as a whole,contained as of the date such information or certificate was so furnished, any untrue statement ofa material fact or omitted to state a material fact necessary in order to make the statementscontained herein or therein not misleading in light of the circumstances under which suchstatements were made; provided, however that the Borrower makes no representation andwarranty in respect of any third-party reports. The projections and pro formafinancial information contained in the materials referenced above are based upon good faithestimates and assumptions believed by management of the Borrower to be reasonable at the time made,it being recognized by the Lenders that such financial information as it relates to future eventsis not to be viewed as fact and that actual results during the period or periods covered by suchfinancial information may differ from the projected results set forth therein by a material amount.
          4.19 Security Documents. (a) The Guarantee and Collateral Agreement is effective tocreate in favor of the Administrative Agent, for the benefit of the Secured Parties, a legal, validand enforceable security interest in the Collateral described therein and proceeds thereof. In thecase of the Pledged Stock described in the Guarantee and Collateral Agreement, when any stockcertificates representing such Pledged Stock are delivered to the Administrative Agent, and in thecase of the other Collateral described in the Guarantee and Collateral Agreement, when financingstatements in appropriate form are filed in the offices specified on Schedule 4.19(a)-1 (whichfinancing statements have been duly completed and delivered to the Administrative Agent), or, withrespect to after-acquired property, when the requirements set forth in Section 6.10 have beencomplied with, the Administrative Agent shall have a fully perfected Lien on, and security interestin, all right, title and interest of the Loan Parties in such Collateral and the proceeds thereof,as security for the Obligations (as defined in the Guarantee and Collateral Agreement), in eachcase prior and superior in right to any other Person (except, in the case of Collateral other thanPledged Stock, Liens permitted by Section 7.3), in each case to the extent required by theGuarantee and Collateral Agreement. As of the date hereof, Schedule 4.19(a)-2 lists each UCC


 

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Financing Statement that (i) names any Loan Party as debtor and (ii) will remain on file after theClosing Date. As of the date hereof, Schedule 4.19(a)-3 lists each UCC Financing Statement that(i) names any Loan Party as debtor and (ii) will be terminated on or prior to the Closing Date; andon or prior to the Closing Date, the Borrower will have delivered to the Administrative Agent (orwill have made appropriate arrangements for the delivery thereof to the Administrative Agent), orcaused to be filed, duly completed UCC termination statements, together with the authorization ofthe relevant secured party to file such termination statements, in respect of each UCC FinancingStatement listed in Schedule 4.19(a)-3.
          (b) Each of the Mortgages is effective to create in favor of the Administrative Agent, for thebenefit of the Secured Parties, a legal, valid and enforceable Lien on the Mortgaged Propertiesdescribed therein and proceeds thereof; and the Administrative Agent has (or, when the Mortgagesare filed in the offices designated by the Borrower (in the case of any Mortgage to be executed anddelivered pursuant to Section 6.10(b)), the Administrative Agent will have) a fully perfected Lienon, and security interest in, all right, title and interest of the Loan Parties in the MortgagedProperties described therein and the proceeds thereof, as security for the Obligations (as definedin the relevant Mortgage), in each case prior and superior in right to any other Person (other thanPersons holding Liens or other encumbrances or rights permitted by Section 7.3). As of the ClosingDate, the Mortgaged Properties constitute all fee interests in real property held by any Loan Partyhaving a value (together with improvements thereof) of at least $5,000,000, other than the propertyin Meridian, MS.
          4.20 Solvency. Each Loan Party is, and after giving effect to the Acquisition and theincurrence of all Indebtedness and obligations being incurred in connection herewith and therewithwill be and will continue to be, Solvent.
          4.21 Senior Indebtedness. The Obligations constitute “Senior Indebtedness” of theBorrower under and as defined in the Senior Subordinated Note Indenture. The obligations of eachSubsidiary Guarantor under the Guarantee and Collateral Agreement constitute “Guarantor SeniorIndebtedness” of such Subsidiary Guarantor under and as defined in the Senior Subordinated NoteIndenture.
          4.22 Regulation H. No Mortgage encumbers improved real property which is located inan area that has been identified by the Secretary of Housing and Urban Development as an areahaving special flood hazards and in which flood insurance has been made available under theNational Flood Insurance Act of 1968 (except any Mortgaged Properties as to which such floodinsurance as required by Regulation H has been obtained and is in full force and effect as requiredby this Agreement).
SECTION 5. CONDITIONS PRECEDENT
          5.1 Conditions to Initial Extension of Credit. The agreement of each Lender to makethe initial extension of credit requested to be made by it hereunder is subject to thesatisfaction, prior to or concurrently with the making of such extension of credit on the ClosingDate, of the following conditions precedent:
          (a) Loan Documents. The Administrative Agent shall have received (i) this Agreement,executed and delivered by a duly authorized officer of the Borrower, (ii) joinders to the Guaranteeand Collateral Agreement, executed and delivered by a duly authorized officer of the Target andeach of Target’s Subsidiaries that is to become a Subsidiary Guarantor, (iii) a reaffirmation ofthe Guarantee and Collateral Agreement in form and substance reasonably satisfactory to theAdministrative Agent, executed and delivered by a duly authorized officer of each existingSubsidiary Guarantor; (iv) a Lender Addendum executed and delivered by each Tranche D Term Lenderand accepted by the Borrower


 

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and (v) satisfactory evidence that this Agreement shall have beenconsented to by the Required Lenders under, and as defined in, the Existing Credit Agreement.
          (b) Acquisition, etc. The following transactions shall have been consummated:
     (i) The Acquisition shall have been consummated in accordance with the terms of theAcquisition Agreement, and the Administrative Agent shall have received satisfactoryevidence thereof; and
     (ii) (i) The Administrative Agent shall have received satisfactory evidence that allmaterial Indebtedness of the Target and its Subsidiaries, other than Indebtedness of theTarget’s Chinese operations, shall have been terminated and all amounts thereunder shallhave been paid in full and (ii) satisfactory arrangements shall have been made for thetermination of all Liens granted in connection therewith.
          (c) Pro Forma Balance Sheet; Financial Statements. The Lenders shall have received(i) the Pro Forma Balance Sheet, (ii) audited consolidated financial statements of the Target forthe 2005 and 2004 fiscal years and (iii) unaudited interim consolidated financial statements of theTarget for each quarterly period ended subsequent to the date of the latest applicable financialstatements delivered pursuant to clause (ii) of this paragraph and not less than 45 days prior tothe Closing Date.
          (d) Approvals. All material governmental approvals necessary in connection with theAcquisition and the transactions contemplated hereby shall have been obtained and be in full forceand effect, and all applicable waiting periods shall have expired without any action being taken orthreatened by any competent authority which would restrain, prevent or otherwise impose materialadverse conditions on the Acquisition or the financing contemplated hereby.
          (e) Related Agreements. The Administrative Agent shall have received true and correctcopies, certified as to authenticity by the Borrower, of the Acquisition Agreement and no materialprovision thereof shall have been waived, amended, supplemented or otherwise modified in a mannerthat is material and adverse to the Lenders.
          (f) Fees. The Administrative Agent, the Syndication Agent and the Joint LeadArrangers shall have received all fees required to be paid, and all reasonable out-of-pocketexpenses for which invoices have been presented (including reasonable fees, disbursements and othercharges of counsel to the Agents), on or before the Closing Date.
          (g) Lien Searches. The Administrative Agent shall have received the results of arecent lien search in each of the jurisdictions in which Uniform Commercial Code financingstatement or other filings or recordations should be made to evidence or perfect security interestsin all assets of the Target and its Subsidiaries, and such search shall reveal no liens on any ofthe assets of such Person, except for Liens permitted by Section 7.3 and Liens to be discharged onor prior to the Closing Date.
          (h) Closing Certificate. The Administrative Agent shall have received a certificateof each Loan Party, dated the Closing Date, substantially in the form of Exhibit C, withappropriate insertions and attachments.
          (i) Legal Opinions. The Administrative Agent shall have received the followingexecuted legal opinions:

 

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     (i) the legal opinion of Latham & Watkins LLP, counsel to the Borrower and itsSubsidiaries, substantially in the form of Exhibit F;
     (ii) to the extent consented to by the relevant counsel, each legal opinion, if any,delivered in connection with the Acquisition Agreement, accompanied by a reliance letter infavor of the Lenders; and
     (iii) such legal opinions of local counsel as may be reasonably requested by theAdministrative Agent, in each case covering such matters as the Administrative Agent shallreasonably request.
          (j) Pledged Stock; Stock Powers; Acknowledgment and Consent; Pledged Notes. TheAdministrative Agent shall have received (i) the certificates, if any, representing the shares ofCapital Stock of Target and its Subsidiaries pledged pursuant to the Guarantee and CollateralAgreement, together with an undated stock power for each such certificate executed in blank by aduly authorized officer of the pledgor thereof and (ii) each promissory note of Target and itsSubsidiaries pledged pursuant to the Guarantee and Collateral Agreement endorsed (withoutrecourse) in blank (or accompanied by an executed transfer form in blank satisfactory to theAdministrative Agent) by the pledgor thereof.
          (k) Filings, Registrations and Recordings. Each document (including, withoutlimitation, any Uniform Commercial Code financing statement) required by the Security Documents orreasonably requested by the Administrative Agent to be filed, registered or recorded in order tocreate in favor of the Administrative Agent, for the benefit of the Secured Parties, a perfectedLien on the Collateral described therein, prior and superior in right to any other Person (otherthan with respect to Liens expressly permitted by Section 7.3), shall have been filed, registeredor recorded or shall have been delivered to the Administrative Agent be in proper form for filing,registration or recordation.
          (l) Credit Ratings. The Tranche D Term Loan Facility shall have receivedratings from Standard and Poor’s Ratings Service and Moody’s Investors Service.
          5.2 Conditions to Each Extension of Credit. The agreement of each Lender to make anyextension of credit requested to be made by it hereunder on any date (including, withoutlimitation, its initial extension of credit) is subject to the satisfaction of the followingconditions precedent:
          (a) Representations and Warranties. Each of the representations and warranties madeby any Loan Party in or pursuant to the Loan Documents that is qualified by materiality shall betrue and correct on and as of such date as if made on and as of such date, and each of therepresentations and warranties made by any Loan Party in or pursuant to the Loan Documents that isnot qualified by materiality shall be true and correct in all material respects on and as of suchdate as if made on and as of such date, except, in each case, to the extent that suchrepresentations and warranties expressly relate to an earlier date, in which case suchrepresentations and warranties shall be true and correct, or true and correct in all materialrespects, as the case may be, as of such earlier date.
          (b) No Default. No Default or Event of Default shall have occurred and be continuingon such date or after giving effect to the extensions of credit requested to be made on such date.
          Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower hereunder shallconstitute a representation and warranty by the Borrower as of the date of such extension of creditthat the conditions contained in this Section 5.2 have been satisfied.

 


 

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SECTION 6. AFFIRMATIVE COVENANTS
          The Borrower hereby agrees that, so long as the Commitments remain in effect, any Letter ofCredit remains outstanding that has not been cash-collateralized or backstopped on terms andconditions acceptable to the Administrative Agent and the Issuing Lender in their sole discretionor any Loan or other amount is owing to any Lender or any Agent hereunder, the Borrower shall andshall cause each of its Subsidiaries to:
          6.1 Financial Statements. Furnish to the Administrative Agent (which shall makeavailable such items to the Lenders):
          (a) as soon as available, but in any event within 90 days (or, if the Borrower is not at suchtime required to file with the SEC an Annual Report on Form 10-K with respect to such fiscal year,120 days) after the end of each fiscal year of the Borrower, a copy of the audited consolidatedbalance sheet of the Borrower and its consolidated Subsidiaries as at the end of such year and therelated audited consolidated statements of income and of cash flows for such year, setting forth ineach case, in comparative form the figures as of the end of and for the previous year, reported onwithout a “going concern” or like qualification or exception, or qualification arising out of thescope of the audit, by Grant Thornton or other independent certified public accountants ofnationally recognized standing;
          (b) as soon as available, but in any event not later than 45 days after the end of each of thefirst three quarterly periods of each fiscal year of the Borrower, the unaudited consolidatedbalance sheet of the Borrower and its consolidated Subsidiaries as at the end of such quarter andthe related unaudited consolidated statements of income and of cash flows for such quarter and theportion of the fiscal year through the end of such quarter, setting forth in each case, incomparative form the figures as of the end of and for the corresponding period in the previousyear, certified by a Responsible Officer as being fairly stated in all material respects (subjectto normal year-end audit adjustments and the absence of footnote disclosure); and
          (c) all such financial statements to be complete and correct in all material respects and tobe prepared in reasonable detail and in accordance with GAAP (subject, in the case of quarterlyfinancial statements, to normal year-end audit adjustments and the absence of footnote disclosure)applied consistently throughout the periods reflected therein and with prior periods (except asapproved by such accountants or officer, as the case may be, and disclosed therein).Notwithstanding the foregoing, (i) in the event that the Borrower delivers to the AdministrativeAgent an Annual Report for Borrower on Form 10-K for such fiscal year, as filed with the SEC,within 90 days after the end of such fiscal year, such Form 10-K shall satisfy all requirements ofparagraph (a) of this Section and (ii) in the event that the Borrower delivers to theAdministrative Agent a Quarterly Report for Borrower on Form 10-Q for such fiscal quarter, as filedwith the SEC, within 45 days after the end of such fiscal quarter, such Form 10-Q shall satisfy allrequirements of paragraph (b) of this Section.
          6.2 Certificates; Other Information. Furnish to the Administrative Agent (which shallmake available such items to the Lenders):
          (a) concurrently with the delivery of the financial statements referred to in Section 6.1(a),a certificate of the independent certified public accountants reporting on such financialstatements stating that in making the examination necessary therefor no knowledge was obtained ofany Default orEvent of Default, except as specified in such certificate (it being understood that suchcertificate shall be limited to the items that independent certified public accountants arepermitted to cover in such certificates pursuant to their professional standards and customs of theprofession);

 


 

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          (b) concurrently with the delivery of any financial statements pursuant to Section 6.1, (i) acertificate of a Responsible Officer stating that such Responsible Officer is not aware of anyDefault or Event of Default except as specified in such certificate, (ii) beginning with the dateof delivery of financial statements for the fiscal quarter ended September 30, 2006, a ComplianceCertificate containing all information and calculations necessary for determining compliance by theBorrower and its Subsidiaries with the provisions of this Agreement referred to therein as of thelast day of the fiscal quarter or fiscal year of the Borrower, as the case may be, (iii) to theextent not previously disclosed to the Administrative Agent, a listing of any material patents,trademarks or copyrights (to the extent recorded in the Patent and Trademark Office or CopyrightOffice) acquired by any Loan Party since the date of the most recent list delivered pursuant tothis clause (iii) or pursuant to the Existing Credit Agreement (or, in the case of the first suchlist so delivered, since the Closing Date) and (iv) if during the period covered by such financialstatements the Borrower made any purchases of Senior Subordinated Notes pursuant to the proviso toclause (a) of Section 7.9, a certificate of a Responsible Officer demonstrating that the conditionsto such purchase set forth in such proviso were complied with;
          (c) as soon as available, and in any event no later than 45 days after the end of each fiscalyear of the Borrower, a detailed consolidated budget for the following fiscal year (including aprojected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of thefollowing fiscal year, and the related consolidated statements of projected cash flow, projectedchanges in financial position and projected income);
          (d) no later than five Business Days prior to the effectiveness thereof, copies ofsubstantially final drafts of any proposed amendment, supplement, waiver or other modificationadverse to the Lenders with respect to the Senior Subordinated Note Indenture or the AcquisitionAgreement;
          (e) promptly after the same are sent, copies of all financial statements and reports that theBorrower sends to the holders of any class of its debt securities or public equity securities and,promptly after the same are filed, copies of all financial statements and reports that the Borrowermay make to, or file with, the SEC; and
          (f) promptly, such additional financial and other information as any Lender, through theAdministrative Agent, may from time to time reasonably request.
          6.3 Payment of Taxes, etc. Pay, discharge or otherwise satisfy at or before maturityor before they become delinquent, as the case may be, all material taxes, fees or other chargesimposed on it or any of its Property by any Governmental Authority, except where the amount orvalidity thereof is currently being contested in good faith by appropriate proceedings and anyrequired reserves in conformity with GAAP with respect thereto have been provided on the books ofthe Borrower or its Subsidiaries, as the case may be.
          6.4 Conduct of Business and Maintenance of Existence, etc. (a) (i) Preserve, renewand keep in full force and effect its corporate or other organizational existence and (ii) take allreasonable action to maintain all rights, privileges and franchises necessary or desirable in thenormal conduct of its business, except, in each case, as otherwise permittedby Section 7.4 and except, in the case of clause (ii) above, to the extent that failure to doso could not reasonably be expected to have a Material Adverse Effect; and (b) comply with allRequirements of Law, except to the extent that failure to comply therewith could not, in theaggregate, reasonably be expected to have a Material Adverse Effect.
          6.5 Maintenance of Property; Insurance. (a) (i) Keep all Property and systems usefuland necessary in its business in reasonably good working order and condition, ordinary wear andtear excepted and (ii) maintain with financially sound and reputable insurance companies insuranceon all its

 


 

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Property in at least such amounts and against at least such risks as are usually insuredagainst in the same general area by companies engaged in the same or a similar business.
          (b) Maintain, with financially sound and reputable companies, insurance policies (i) insuringthe Mortgaged Properties and the Inventory and Equipment constituting Collateral against loss byfire, explosion, theft and such other casualties as may be reasonably satisfactory to theAdministrative Agent and (ii) to the extent requested by the Administrative Agent, insuring theapplicable Loan Party and the Administrative Agent for the benefit of the Secured Parties againstliability for personal injury and property damage relating to such Inventory and Equipment, suchpolicies to be in such form and amounts and having such coverage as may be reasonably satisfactoryto the Administrative Agent. All such insurance shall (i) provide that no cancellation, materialreduction in amount or material change in coverage thereof shall be effective until at least 30days after receipt by the Administrative Agent of written notice thereof, (ii) name theAdministrative Agent as insured party or loss payee and (iii) be reasonably satisfactory in allother respects to the Administrative Agent.
          (c) Deliver to the Administrative Agent a report of a reputable insurance broker with respectto insurance maintained by the Loan Parties on the Collateral substantially concurrently with thedelivery by the Borrower to the Administrative Agent of its audited financial statements for eachfiscal year, and such supplemental reports with respect thereto as the Administrative Agent mayfrom time to time reasonably request.
          6.6 Inspection of Property; Books and Records; Discussions. (a) Keep proper books ofrecords and account in which full, true and correct entries in conformity with GAAP and allRequirements of Law shall be made of all material dealings and transactions in relation to itsbusiness and activities and (b) permit representatives of any Lender, upon reasonable notice, tovisit and inspect any of its properties and examine and make abstracts from any of its books andrecords at any reasonable time during normal business hours and as often as may reasonably bedesired and to discuss the business, operations, properties and financial and other condition ofthe Borrower and its Subsidiaries with officers and employees of the Borrower and its Subsidiariesand with its independent certified public accountants; provided, the Lenders shallcoordinate such visits through the Administrative Agent such that, in the absence of any Event ofDefault that has occurred and is continuing, not more than one such visit shall occur in anycalendar year.
          6.7 Notices. Promptly after any Responsible Officer obtains knowledge thereof, givenotice to the Administrative Agent and each Lender of:
          (a) the occurrence of any Default or Event of Default;
          (b) any litigation, investigation or proceeding which may exist at any time between theBorrower or any of its Subsidiaries and any Governmental Authority, that in either case, if notcured or if adversely determined, as the case may be, could reasonably be expected to have aMaterial Adverse Effect;
          (c) any litigation or proceeding affecting the Borrower or any of its Subsidiaries in whichthe amount involved is $1,000,000 or more and not covered by insurance or in which injunctive orsimilar relief is sought;
          (d) the following events, as soon as possible and in any event within 30 days after theBorrower knows or has reason to know thereof: (i) the occurrence of any Reportable Event withrespect to any Plan, a failure to make any required material contribution to a Plan, the creationof any Lien in favor of the PBGC or a Plan or any withdrawal from, or the termination,Reorganization or Insolvency

 


 

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of, any Multiemployer Plan or (ii) the institution of proceedings orthe taking of any other action by the PBGC or the Borrower or any Commonly Controlled Entity or anyMultiemployer Plan with respect to the withdrawal from, or the termination, Reorganization orInsolvency of, any Plan;
          (e) the acquisition by the Borrower or any of its Subsidiaries of any fee interest in realproperty having a value (together with improvements thereof) of at least $5,000,000 (other than anysuch real property owned by an Excluded Subsidiary or subject to a Lien expressly permitted bySection 7.3(g)); and
          (f) any development or event that has had or could reasonably be expected to have a MaterialAdverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a Responsible Officersetting forth details of the occurrence referred to therein and stating what action the Borrower orthe relevant Subsidiary proposes to take with respect thereto.
          6.8 Environmental Laws. (a) Except as would not have a Material Adverse Effect,comply in all material respects with all applicable Environmental Laws, and obtain and comply inall material respects with and maintain any and all material licenses, approvals, notifications,registrations or permits required by applicable Environmental Laws.
          (b) Except as would not have a Material Adverse Effect, conduct and complete allinvestigations, studies, sampling and testing, and all remedial, removal and other actions lawfullyrequired under applicable Environmental Laws and promptly comply in all material respects with alllawful orders and directives of all Governmental Authorities regarding Environmental Laws providedthat the foregoing shall not prohibit Borrower from challenging in good faith any such order,regulation or statute requiring investigation, remediation or other actions (provided suchchallenge would not reasonably be expected to result in a Material Adverse Effect).
          6.9 Interest Rate Protection. In the case of the Borrower, within 120 days after theClosing Date, enter into Hedge Agreements to the extent necessary to provide that at least 35% ofthe aggregate principal amount of the Senior Subordinated Notes and the Tranche D Term Loans issubject to either a fixed interest rate or interest rate protection for a period of not less thantwo years on a weighted average basis, which Hedge Agreements shall have terms and conditionsreasonably satisfactory to the Administrative Agent.
          6.10 Additional Collateral, etc. (a) With respect to any Property acquired after theClosing Date by the Borrower or any of its Subsidiaries (other than (x) any Property described inparagraph (b) or paragraph (c) of this Section or any other interest in real property, (y) anyProperty subject to a Lien expressly permitted by Section 7.3(g) and (z) Property acquired by anExcluded Subsidiary) as to which the Administrative Agent, for the benefit of the Secured Parties,does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent suchamendments to the Guarantee and Collateral Agreement or such other documents as the AdministrativeAgent deems necessary to grant to the Administrative Agent, for the benefit of the Secured Parties,a security interest in such Property, to the extent required by the Guarantee and CollateralAgreement, and (ii) take all actions necessary to grant to the Administrative Agent, for thebenefit of the Secured Parties, a perfected first priority security interest in such Property, tothe extent required by the Guarantee and Collateral Agreement, including without limitation, thefiling of Uniform Commercial Code financing statements in such jurisdictions as may be required bythe Guarantee and Collateral Agreement or as may be requested by the Administrative Agent.

 


 

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          (b) With respect to any fee interest in any real property (including a fee interest inimprovements which are subject to a ground lease) having a value (together with improvementsthereof) of at least $5,000,000 acquired after the Closing Date by the Borrower or any of itsSubsidiaries (other than any such real property owned by an Excluded Subsidiary or subject to aLien expressly permitted by Section 7.3(g)), promptly (i) execute and deliver a first priorityMortgage in favor of the Administrative Agent, for the benefit of the Secured Parties, coveringsuch real property, (ii) if requested by the Administrative Agent, provide the Lenders with (or inthe case of clause (y) use all commercially reasonable efforts to provide the Lenders with) (x)title and extended coverage insurance covering such real property in an amount at least equal tothe purchase price of such real property (or such other amount as shall be reasonably specified bythe Administrative Agent) as well as a current ALTA survey thereof, together with a surveyor’scertificate and (y) any consents or estoppels reasonably deemed necessary by the AdministrativeAgent in connection with such Mortgage, each of the foregoing in form and substance reasonablysatisfactory to the Administrative Agent and (iii) if requested by the Administrative Agent,deliver to the Administrative Agent legal opinions relating to the matters described above, whichopinions shall be in form and substance, and from counsel, reasonably satisfactory to theAdministrative Agent; provided, that the Borrower shall not be required to comply with theforegoing provisions of this paragraph (b) in respect of any parcel of real property as to whichthe Administrative Agent shall have determined that the cost of the foregoing actions isdisproportionate (taking into account any potential environmental issues with respect to suchparcel) to the value of such parcel as Collateral.
          (c) With respect to any new Subsidiary (other than an Excluded Subsidiary) created or acquiredafter the Closing Date (which, for the purposes of this paragraph, shall include any existingSubsidiary that ceases to be an Excluded Subsidiary), by the Borrower or any of its Subsidiaries,promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee andCollateral Agreement as the Administrative Agent reasonably deems necessary to grant to theAdministrative Agent, for the benefit of the Secured Parties, a perfected first priority securityinterest in the Capital Stock of such new Subsidiary that is owned by the Borrower or any of itsSubsidiaries, (ii) deliver to the Administrative Agent the certificates, if any, representing suchCapital Stock, together with undated stock powers, in blank, executed and delivered by a dulyauthorized officer of the Borrower or such Subsidiary, as the case may be, (iii) cause such newSubsidiary (A) to become a party to the Guarantee and Collateral Agreement and (B) to take suchactions reasonably deemed necessary by the Administrative Agent to grant to the AdministrativeAgent for the benefit of the Secured Parties a perfected first priority security interest in theCollateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary,including, without limitation, the filing of Uniform Commercial Code financing statements in suchjurisdictions as may be required by the Guarantee and Collateral Agreement or as may be requestedby the Administrative Agent, and (iv) if reasonably requested by the Administrative Agent,deliver to the Administrative Agent legal opinions relating to the matters described above, whichopinions shall be in form and substance, and from counsel, reasonably satisfactory to theAdministrative Agent.
          (d) With respect to any new Excluded Subsidiary created or acquired after the Closing Date bythe Borrower or any of its Subsidiaries (other than any Excluded Subsidiaries), promptly (i)execute and deliver to the Administrative Agent such amendments to the Guarantee and CollateralAgreement or such other documents as the Administrative Agent deems necessary in order to grant tothe Administrative Agent, for the benefit of the Secured Parties, a perfected first prioritysecurity interest in the Capital Stock of such new Subsidiary that is owned by the Borrower or anyof its Subsidiaries (other than any Excluded Subsidiaries), (provided that in no event shall morethan 65% of the total outstanding Capital Stock of any such new Excluded Subsidiary be required tobe so pledged), (ii) deliver to the Administrative Agent the certificates, if any, representingsuch Capital Stock, together with undated stock powers, in blank, executed and delivered by a dulyauthorized officer of the Borrower or such Subsidiary, as the case may be, and take such otheraction as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect theLien of the Administrative Agent thereon, and (iii) if

 


 

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reasonably requested by the AdministrativeAgent, deliver to the Administrative Agent legal opinions relating to the matters described above,which opinions shall be in form and substance, and from counsel, reasonably satisfactory to theAdministrative Agent.
          6.11 Further Assurances. From time to time execute and deliver, or cause to beexecuted and delivered, such additional instruments, certificates or documents, and take suchactions, as the Administrative Agent may reasonably request for the purposes of implementing oreffectuating the provisions of this Agreement and the other Loan Documents, or of more fullyperfecting or renewing the rights of the Administrative Agent and the Lenders with respect to theCollateral (or with respect to any additions thereto or replacements or proceeds thereof or withrespect to any other property or assets hereafter acquired by the Borrower or any Subsidiary whichmay be deemed to be part of the Collateral) pursuant hereto or thereto. Upon the exercise by theAdministrative Agent of any power, right, privilege or remedy pursuant to this Agreement or theother Loan Documents which requires any consent, approval, recording, qualification orauthorization of any Governmental Authority, the Borrower will execute and deliver, or will causethe execution and delivery of, all applications, certifications, instruments and other documentsand papers that the Administrative Agent may be required to obtain from the Borrower or any of itsSubsidiaries for such governmental consent, approval, recording, qualification or authorization.
          6.12 Collateral Covenants. Take the following actions with respect to the Borrower’sCollateral, and cause each other Loan Party to take the following actions with respect to theCollateral of such Loan Party:
          (a) If any amount in excess of $1,000,000 payable under or in connection with any of theCollateral shall be or become evidenced by any Instrument, Certificated Security or Chattel Paper(as defined in the Uniform Commercial Code in the State of New York), forthwith deliver suchInstrument, Certificated Security or Chattel Paper to the Administrative Agent, duly indorsed in amanner satisfactory to the Administrative Agent, to be held as Collateral pursuant to the Guaranteeand Collateral Agreement.
          (b) Maintain the security interest created by the Guarantee and Collateral Agreement as aperfected security interest having at least the priority described in Section 4.19 of thisAgreement anddefend such security interest against the claims and demands of all Persons whomsoever (otherthan holders of Permitted Liens).
          (c) At any time and from time to time, upon the written request of the Administrative Agent,and at the sole expense of the Borrower, promptly and duly execute and deliver, and have recorded,such further instruments and documents and take such further actions as the Administrative Agentmay reasonably request for the purpose of obtaining or preserving the full benefits of theGuarantee and Collateral Agreement and of the rights and powers therein granted, including, withoutlimitation, (i) the filing of any financing or continuation statements under the Uniform CommercialCode (or other similar laws) in effect in any jurisdiction with respect to the security interestscreated by the Guarantee and Collateral Agreement and (ii) in the case of Investment Property (asdefined in the Uniform Commercial Code in the State of New York) with a fair market value in excessof $1,000,000, taking any actions necessary to enable the Administrative Agent to obtain “control”(within the meaning of the applicable Uniform Commercial Code) with respect thereto, limited, inthe case of Investment Property that is the Capital Stock of a Foreign Subsidiary, to 65% of suchInvestment Property.
          (d) If any Loan Party becomes entitled to receive or receives any certificate (including,without limitation, any certificate representing a dividend or a distribution in connection withany reclassification, increase or reduction of capital or any certificate issued in connection withany

 


 

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reorganization) in respect of the Capital Stock of any Issuer (as defined in the Guarantee andCollateral Agreement), whether in addition to, in substitution of, as a conversion of, or inexchange for, any shares of the Pledged Stock, or otherwise in respect thereof, deliver the sameforthwith to the Administrative Agent in the exact form received, duly indorsed by such Loan Partyto the Administrative Agent, if required, together with an undated stock power covering suchcertificate duly executed in blank by such Loan Party, to be held by the Administrative Agent,subject to the terms of the Guarantee and Collateral Agreement, as additional collateral securityfor the Obligations. If any sums are paid upon or in respect of the Investment Property upon theliquidation or dissolution of any Issuer, other than pursuant to a transaction permitted by Section7.4, cause such sums to be paid over to the Administrative Agent to be held by it under theGuarantee and Collateral Agreement as additional collateral security for the Obligations, and incase any distribution of capital shall be made on or in respect of the Investment Property, or anyproperty shall be distributed upon or with respect to the Investment Property pursuant to therecapitalization or reclassification of the capital of any Issuer or pursuant to the reorganizationthereof, cause the property so distributed, unless otherwise subject to a perfected securityinterest in favor of the Administrative Agent, to be delivered to the Administrative Agent to beheld by it under the Guarantee and Collateral Agreement as additional collateral security for theObligations, to the extent required by the Guarantee and Collateral Agreement. If any sums ofmoney or property so paid or distributed in respect of the Investment Property shall be received byany Loan Party, other than pursuant to a transaction permitted by Section 7.4, hold such money orproperty in trust for the Secured Parties, segregated from other funds of such Loan Party, asadditional collateral security for the Obligations, until such money or property is paid ordelivered to the Administrative Agent. Notwithstanding the foregoing, the Loan Parties shall notbe required to pay over to the Administrative Agent or deliver to the Administrative Agent asCollateral any proceeds of any liquidation or dissolution of any Issuer, or any distribution ofcapital or property in respect of any Investment Property, to the extent that the proceeds thereofare applied toward prepayment of Loans and reduction of Commitments if and to the extent requiredby this Agreement.
          (e) In the case of each Loan Party which is an Issuer, (i) comply with the terms of thisAgreement and the Guarantee and Collateral Agreement relating to the Pledged Securities issued byit insofar as such terms are applicable to it, (ii) notify the Administrative Agent promptly inwriting of the occurrence of any of the events described in Section 6.12(d) with respect to thePledged Securities issued by it and (iii) the terms of Sections 6.3(c) of the Guarantee andCollateral Agreement shall apply to it,mutatis mutandis, with respect to all actions that may be required of itpursuant to Section 6.3(c) of the Guarantee and Collateral Agreement with respect to the PledgedSecurities issued by it.
          (f) In the case of each Loan Party which is an Issuer and is also a partnership or a limitedliability company (i) ensure that none of the terms of any equity interest issued by it providesthat such equity interest is a “security” within the meaning of Sections 8-102 and 8-103 of the NewYork Uniform Commercial Code (a “Security”), (ii) refrain from taking any action to causeor permit any such equity interest to become a Security and (iii) refrain from issuing anycertificate representing any such equity interest, unless, in each case, all required actions havebeen or substantially concurrently are taken to cause the Administrative Agent to have “control”(within the meaning of Section 8-106 of the UCC) of such Security.
          (g) Except as could not reasonably be expected to have a Material Adverse Effect, eitheritself or through licensees (i) continue to use each Trademark in order to maintain such Trademarkin full force free from any claim of abandonment for non-use, (ii) maintain the quality of productsand services offered under such Trademark, (iii) use such Trademark with the appropriate notice ofregistration and all other notices and legends required by applicable Requirements of Law, (iv) notadopt or use any mark which is confusingly similar or a colorable imitation of such Trademarkunless the Administrative Agent, for the ratable benefit of the Secured Parties, shall obtain aperfected security

 


 

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interest in such mark pursuant to the Guarantee and Collateral Agreement, and(v) not do any act or knowingly omit to do any act whereby such Trademark may become invalidated orimpaired in any way.
          (h) Except as could not reasonably be expected to have a Material Adverse Effect, not do anyact, or omit to do any act, whereby any Patent may become forfeited, abandoned or dedicated to thepublic.
          (i) Except as could not reasonably be expected to have a Material Adverse Effect, (i) employeach Copyright, (ii) not do any act or knowingly omit to do any act whereby any of the Copyrightsmay become invalidated or otherwise impaired and (iii) not do any act whereby any of the Copyrightsmay fall into the public domain.
          (j) Except as could not reasonably be expected to have a Material Adverse Effect, take allreasonable and necessary steps, including, without limitation, in any proceeding before the UnitedStates Patent and Trademark Office, the United States Copyright Office or any similar office oragency in any other country or any political subdivision thereof, to maintain and pursue eachapplication relating to any Intellectual Property (and to obtain the relevant registration) and tomaintain each registration of the Intellectual Property, including, without limitation, filing ofapplications for renewal, affidavits of use and affidavits of incontestability.
          (k) In the event that any material Intellectual Property is infringed, misappropriated ordiluted by a third party, (i) take such actions as the Borrower shall reasonably deem appropriateunder the circumstances to protect such Intellectual Property and (ii) if such infringement,misappropriation or dilution could reasonably be expected to have a Material Adverse Effect,promptly notify the Administrative Agent after it learns thereof.
          (l) If any Loan Party shall at any time commence a suit, action or proceeding with respect toany Commercial Tort Claim held by it with a value which such Loan Party reasonably believes to beof $1,000,000 or more, promptly notify the Administrative Agent thereof in a writing signed by suchLoan Party and describing the details thereof and grant to the Administrative Agent for the benefitof the Secured Parties in such writing a security interest therein and in the proceeds thereof, allupon the terms of the Guarantee and Collateral Agreement.
SECTION 7. NEGATIVE COVENANTS
          The Borrower hereby agrees that, so long as the Commitments remain in effect, any Letter ofCredit remains outstanding that has not been cash-collateralized or backstopped on terms andconditions acceptable to the Administrative Agent and the Issuing Lender in their sole discretionor any Loan or other amount is owing to any Lender or any Agent hereunder, the Borrower shall not,and shall not permit any of its Subsidiaries to, directly or indirectly:
          7.1 Financial Condition Covenants.
          (a) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as at thelast day of any period of four consecutive fiscal quarters of the Borrower ending with any fiscalquarter set forth below to exceed the ratio set forth below opposite such fiscal quarter:

 


 

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    Consolidated
Fiscal Quarter   Leverage Ratio
FQ3 2006   5.25:1.00
FQ4 2006   5.25:1.00
FQ1 2007   5.25:1.00
FQ2 2007   5.25:1.00
FQ3 2007   5.00:1.00
FQ4 2007   5.00:1.00
FQ1 2008   5.00:1.00
FQ2 2008   5.00:1.00
FQ3 2008   4.90:1.00
FQ4 2008   4.75:1.00
FQ1 2009   4.60:1.00
FQ2 2009   4.50:1.00
FQ3 2009   4.40:1.00
FQ4 2009   4.10:1.00
FQ1 2010   3.75:1.00
FQ2 2010   3.75:1.00
FQ3 2010   3.50:1.00
FQ4 2010 and thereafter   3.50:1.00
          (b) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest CoverageRatio for any period of four consecutive fiscal quarters of the Borrower ending with any fiscalquarter set forth below to be less than the ratio set forth below opposite such fiscal quarter:
     
    Consolidated Interest Coverage
Fiscal Quarter   Ratio
FQ3 2006   2.25:1.00
FQ4 2006   2.25:1.00
FQ1 2007   2.25:1.00
FQ2 2007   2.25:1.00
FQ3 2007   2.25:1.00
FQ4 2007   2.30:1.00
FQ1 2008   2.40:1.00
FQ2 2008   2.50:1.00
FQ3 2008   2.50:1.00
FQ4 2008   2.50:1.00
FQ1 2009   2.60:1.00
FQ2 2009   2.65:1.00
FQ3 2009   2.75:1.00
FQ4 2009   2.80:1.00
FQ1 2010   3.00:1.00
FQ2 2010   3.00:1.00
FQ3 2010   3.00:1.00
FQ4 2010 and thereafter   3.00:1.00
          7.2 Limitation on Indebtedness. Create, incur, assume or suffer to exist anyIndebtedness, except:
          (a) Indebtedness of any Loan Party pursuant to any Loan Document;
          (b) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary Guarantor to theBorrower or any other Subsidiary;

 


 

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          (c) Indebtedness (including, without limitation, Capital Lease Obligations) secured by Lienspermitted by Section 7.3(g) in an aggregate principal amount not to exceed $12,500,000 at any onetime outstanding;
          (d) Indebtedness outstanding on the date hereof and listed on Schedule 7.2(d) and anyrefinancings, refundings, renewals or extensions thereof (without any shortening of the maturity ofany principal amount thereof); provided that any Indebtedness incurred in connection withany refinancing, refunding, renewals or extensions that increase the principal amount thereof shallonly be permitted pursuant to this Section 7.2(d) to the extent of the principal amount of suchIndebtedness as of the date hereof;
          (e) Guarantee Obligations made in the ordinary course of business by the Borrower or any ofits Subsidiaries of obligations of the Borrower or any Subsidiary Guarantor;
          (f) (i) (x) Indebtedness of the Borrower in respect of the Senior Subordinated Notes in anaggregate principal amount not to exceed $230,000,000 and (y) Guarantee Obligations of anySubsidiary Guarantor in respect of such Indebtedness (provided that such GuaranteeObligations are subordinated to the obligations of such Subsidiary Guarantor under the Guaranteeand Collateral Agreement to the same extent as the obligations of the Borrower in respect of theSenior Subordinated Notes are subordinated to the Obligations) and (ii) and any refinancings,refundings, renewals or extensions of any Indebtedness described in the foregoing clause (i)(provided that (A) the principal amount thereof is not increased, (B) the weighted averagelife to maturity of the principal amount thereof is not decreased, nor the final maturity thereofshortened, (C) the obligations of the Borrower and its Subsidiaries in respect of such Indebtednessare subordinated to the Obligations to the same extent as the obligations of the Borrower and itsSubsidiaries in respect of the Senior Subordinated Notes, (D) the interest rate applicable to andfees payable in connection with such Indebtedness is not in excess of that payable in respect ofthe Senior Subordinated Notes, and (E) such Indebtedness otherwise contains terms which are, whentaken as a whole, at least as favorable to the Borrower and its Subsidiaries as the terms of theIndebtedness described in the foregoing clause (i));
          (g) Indebtedness of any Loan Party pursuant to (x) the Original Acquisition Agreement as ineffect on the Original Closing Date, (y) the Acquisition Agreement or (z) the agreement for anyother acquisition permitted under Section 7.8(h);
          (h) Indebtedness of Excluded Subsidiaries in respect of local lines of credit, letters ofcredit, bank guarantees, factoring arrangements, sale/leaseback transactions and similar extensionsof credit not to exceed an aggregate outstanding principal amount at any one time equal to of thesum of (x) $25,000,000 plus (y) 5% of Consolidated EBITDA of the Borrower for each fiscalyear for which financial statements have been delivered pursuant to Section 6.1(a) prior to theincurrence of such Indebtedness;
          (i) Indebtedness of Excluded Subsidiaries owing to any Loan Party, provided that thePermitted Foreign Investment Amount at such time after giving effect thereto does not exceed theMaximum Investment Amount;
          (j) (i) Guarantee Obligations by Loan Parties of obligations of Excluded Subsidiaries,provided that the aggregate outstanding Permitted Foreign Investment Amount at such timeafter giving effect thereto does not exceed the Maximum Investment Amount and (ii) GuaranteeObligations by Excluded Subsidiaries of obligations of Excluded Subsidiaries;

 


 

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          (k) Indebtedness of the Borrower under Permitted Seller Notes issued as consideration inconnection with an acquisition permitted under Section 7.8(h);
          (l) Indebtedness of the Borrower or any of its Subsidiaries in respect of workers’compensation claims, self-insurance obligations, performance, bid and surety bonds and completionguaranties, in each case in the ordinary course of business;
          (m) Indebtedness of the Borrower or any of its Subsidiaries arising from the honoring by abank or other financial institution of a check, draft or similar instrument inadvertently drawn bythe Borrower or such Subsidiary in the ordinary course of business against insufficient funds, solong as such Indebtedness is repaid within five Business Days; and
          (n) additional unsecured indebtedness of the Borrower or any of its Subsidiaries not to exceedan aggregate outstanding principal amount of $15,000,000 at any time.
          7.3 Limitation on Liens. Create, incur, assume or suffer to exist any Lien upon anyof its Property, whether now owned or hereafter acquired, except for:
          (a) Liens for taxes not yet due or which are being contested in good faith by appropriateproceedings, provided that adequate reserves with respect thereto (if required by GAAP) aremaintained on the books of the Borrower or its Subsidiaries, as the case may be, in conformity withGAAP;
          (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liensarising in the ordinary course of business which are not overdue for a period of more than 30 daysor that are being contested in good faith by appropriate proceedings;
          (c) pledges or deposits in connection with workers’ compensation, unemployment insurance andother social security legislation;
          (d) deposits to secure the performance of bids, trade contracts (other than for borrowedmoney), leases, subleases, statutory obligations, surety and appeal bonds, performance bonds andother obligations of a like nature incurred in the ordinary course of business;
          (e) easements, rights-of-way, restrictions and other similar encumbrances incurred in theordinary course of business that, in the aggregate, are not substantial in amount and which do notin any case materially detract from the value of the Property subject thereto or materiallyinterfere with the ordinary conduct of the business of the Borrower or any of its Subsidiaries;
          (f) Liens in existence on the date hereof listed on Schedule 7.3(f), securing Indebtednesspermitted by Section 7.2(d) or obligations described on Schedule 7.3(f), provided that nosuch Lien is spread to cover any additional Property after the Closing Date and that the amount ofIndebtedness secured thereby is not increased;
          (g) Liens securing Indebtedness of the Borrower or any other Subsidiary incurred pursuant toSection 7.2(c) to finance the acquisition of fixed or capital assets, provided that (i)such Liens shall be created substantially simultaneously with the acquisition of such fixed orcapital assets and (ii) such Liens do not at any time encumber any Property other than the Propertyfinanced by such Indebtedness and the proceeds thereof;
          (h) Liens created pursuant to the Security Documents;

 


 

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          (i) any interest or title of a lessor under any lease entered into by the Borrower or anyother Subsidiary in the ordinary course of its business and covering only the assets so leased;
          (j) Liens arising from judgments in circumstances not constituting an Event of Default underSection 8(h);
          (k) Liens on property or assets acquired pursuant to an acquisition permitted under Section7.8(h) (and proceeds thereof) or assets of a Subsidiary of Borrower in existence at the time suchSubsidiary is acquired pursuant to an acquisition permitted under Section 7.8(h) (and proceedsthereof);
          (l) Liens on Property or assets of Excluded Subsidiaries securing Indebtedness permitted bythis Agreement to be incurred by such Subsidiaries;
          (m) receipt of progress payments and advances from customers in the ordinary course ofbusiness to the extent same creates a Lien on the related inventory and proceeds thereof;
          (n) Liens on receivables and related assets (including proceeds thereof) which are being soldpursuant to factoring arrangements permitted under Section 7.5(m) or (n); and
          (o) other Liens with respect to obligations that do not exceed $7,000,000 at any one timeoutstanding.
          7.4 Limitation on Fundamental Changes. Enter into any merger, consolidation oramalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution),or Dispose of all or substantially all of its Property or business, except that:
          (a) any Subsidiary of the Borrower may be merged or consolidated with or into the Borrower(provided that the Borrower shall be the continuing or surviving corporation) or with orinto any Subsidiary Guarantor (provided that (i) the Subsidiary Guarantor shall be thecontinuing or surviving corporation or (ii) simultaneously with such transaction, the continuing orsurviving corporation shall become a Subsidiary Guarantor and the Borrower shall comply withSection 6.10 in connection therewith);
          (b) any Subsidiary of the Borrower may Dispose of any or all of its assets (upon voluntaryliquidation or otherwise) to the Borrower or any Subsidiary Guarantor;
          (c) acquisitions permitted under Section 7.8(h) may be consummated;
          (d) any Excluded Subsidiary of the Borrower may be merged or consolidated with or into, or beliquidated into, another Excluded Subsidiary of the Borrower;
          (e) any Excluded Subsidiary of the Borrower may Dispose of any or all of its assets (uponvoluntary liquidation or otherwise) to any other Excluded Subsidiary; and
          (f) Dispositions permitted by Section 7.5 may be consummated.
          7.5 Limitation on Disposition of Property. Dispose of any of its Property (including,without limitation, receivables and leasehold interests), whether now owned or hereafter acquired,or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary’s Capital Stock toany Person, except:

 


 

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          (a) the Disposition of obsolete or worn out property in the ordinary course of business;
          (b) the sale of inventory in the ordinary course of business;
          (c) Dispositions permitted by Section 7.4(a), (b), (d) or (e), Section 7.6 or Section 7.8;
          (d) the sale or issuance of any Subsidiary’s Capital Stock to the Borrower or any SubsidiaryGuarantor (or, in the case of the Capital Stock of an Excluded Subsidiary, to any otherSubsidiary);
          (e) the Disposition of other assets having a fair market value not to exceed $25,000,000 inthe aggregate subsequent to the Closing Date (provided that any such Disposition must befor at least 75% cash which is received at the time of closing thereof), provided that theNet Cash Proceeds of any such Disposition are applied to the prepayment of the Loans to the extentrequired by Section 2.12(b);
          (f) any Recovery Event, provided, that the requirements of Section 2.12(b) arecomplied with in connection therewith;
          (g) the sale by Excluded Subsidiaries (without recourse) of receivables (and related assets)pursuant to factoring arrangements entered into in the ordinary course of business;
          (h) leases, occupancy agreements and subleases of real property in the ordinary course ofbusiness;
          (i) licenses or sublicenses in the ordinary course of business of intellectual property;
          (j) the Disposition by any Excluded Subsidiary of any of its Property in an arms’-lengthtransaction for the fair market value thereof;
          (k) the Disposition by the Borrower or any Subsidiary Guarantor of any of its Property to anyExcluded Subsidiary or Joint Venture; provided that, (i) to the extent the considerationpaid by such Excluded Subsidiary or Joint Venture is less than the fair market value thereof, theBorrower shall be in compliance with the provisions of Section 7.8(k) or (l), as applicable and(ii) any Net Cash Proceeds of any such Disposition are applied to the prepayment of the Loans tothe extent required by Section 2.12(b);
          (l) the Disposition by any Loan Party of any equity interest of any Excluded Subsidiary heldby such Loan Party in an arms’-length transaction for the fair market value thereof;
          (m) (i) the Borrower and its Subsidiaries may sell and grant Liens in receivables and relatedassets (including proceeds thereof) arising from goods and services provided to HoneywellInternational, Inc. and its affiliates, pursuant to factoring arrangements entered into in theordinary course of business and (ii) the Borrower and its Subsidiaries may sell receivablespursuant to receivables sales programs arranged by the account debtors in respect of suchreceivables, provided, that (x) the aggregate amount of receivables sold pursuant to thisclause (ii) in any fiscal quarter of the Borrower shall not to exceed 15% of the aggregate amountof receivables of the Loan Parties generated during the immediately preceding four fiscal quarters(which aggregate amount of receivables shall include the receivables of the Target and itsSubsidiaries that are Loan Parties on a pro forma basis) and (y) the annualpercentage

 


 

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discount on the face amount of receivables sold in any such sale pursuant to this clause(ii) shall not exceed a percentage equal to the Eurodollar Rate for a three month Interest Periodcommencing on the date of such sale plus the Applicable Margin then applicable to Eurodollar Loansunder the Revolving Credit Facility;
          (n) the AutoZone Factoring Arrangement, the Advanced Auto Parts Factoring Arrangement and theCarQuest Factoring Arrangement shall be permitted; and
          (o) Disposition of Non-Core Assets (provided that any such Disposition must be for atleast 75% cash which is received at the time of closing thereof), provided that the NetCash Proceeds of any such Disposition are applied to the prepayment of the Loans to the extentrequired by Section 2.12(b).
          7.6 Limitation on Restricted Payments. Declare or pay any dividend on, or make anypayment on account of, or set apart assets for a sinking or other analogous fund for, the purchase,redemption, defeasance, retirement or other acquisition of, any Capital Stock of the Borrower orany Subsidiary, whether now or hereafter outstanding, or make any other distribution in respectthereof, either directly or indirectly, whether in cash or property or in obligations of theBorrower or any Subsidiary, or enter into any derivatives or other transaction with any financialinstitution, commodities or stock exchange or clearinghouse (a “Derivatives Counterparty”)obligating the Borrower or any Subsidiary to make payments to such Derivatives Counterparty as aresult of any change in market value of any such Capital Stock (collectively, “RestrictedPayments”), except that:
          (a) any Subsidiary may make Restricted Payments to the Borrower or any Subsidiary Guarantor;
          (b) the Borrower may make Restricted Payments in the form of common stock of the Borrower;
          (c) the Borrower may purchase the Borrower’s common stock or common stock options from presentor former officers or employers of the Borrower or any Subsidiary upon the death, disability oftermination of employment of such officer or employer, provided, that the aggregate amountof payments under this paragraph subsequent to the Closing Date (net of any proceeds received bythe Borrower subsequent to the date hereof in connection with resales of any common stock or commonstock options so purchased) shall not exceed $20,000,000;
          (d) the Borrower may pay dividends to Holdings to permit Holdings to (i) pay corporateoverhead expenses incurred in the ordinary course of business not to exceed $1,250,000 in anyfiscal year and (ii) pay any taxes which are due and payable by Holdings and the Borrower as partof a consolidated group;
          (e) any non-Wholly Owned Subsidiary of the Borrower may declare and pay cash dividends to itsequity holders generally so long as the Borrower or its respective Subsidiary which owns the equityinterests in the Subsidiary paying such dividends receives at least its proportionate share thereof(based upon its relative holding of the equity interests in the Subsidiary paying such dividendsand taking into account the relative preferences, if any, of the various classes of equity interestof such Subsidiary);
          (f) Excluded Subsidiaries may make Restricted Payments to other Excluded Subsidiaries;

 


 

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          (g) so long as no Default or Event of Default has occurred and is continuing, the Borrower maypurchase fractional shares of the Borrower’s common stock arising out of stock dividends, splits orcombinations or business combinations; and
          (h) the Target may make Restricted Payments required to be made by the Acquisition Agreement.
          7.7 Limitation on Capital Expenditures. Make any Capital Expenditure, except CapitalExpenditures of the Borrower and its Subsidiaries in the ordinary course of business not exceedingfor any fiscal year the sum of (x) $60,000,000 plus (y) the aggregate amount of Net CashProceeds reinvested by the Borrower and its Subsidiaries during such fiscal year in connection witha Reinvestment Notice to the extent such reinvestment constitutes Capital Expenditures;provided, that (i) up to 50% of any such amount referred to above for any period specifiedabove, if not so expended in the period for which it is permitted, may be carried over forexpenditure in the next succeeding such period and (ii) Capital Expenditures made during any periodspecified above shall be deemed made, first, in respect of amounts permitted for suchperiod as provided above and second, in respect of amounts carried over from the priorperiod pursuant to subclause (i) above.
          7.8 Limitation on Investments. Make any advance, loan, extension of credit (by way ofguaranty or otherwise) or capital contribution to, or purchase any Capital Stock, bonds, notes,debentures or other debt securities of,or any assets constituting an ongoing business from, or make any other investment in, anyother Person (all of the foregoing, “Investments”), except:
          (a) extensions of trade credit in the ordinary course of business;
          (b) investments in Cash Equivalents and by Excluded Subsidiaries in Foreign Cash Equivalents;
          (c) Investments arising in connection with the incurrence of Indebtedness permitted by Section7.2(b) and (e);
          (d) loans and advances to officers, directors and employees of Holdings, the Borrower or anySubsidiaries of the Borrower in the ordinary course of business (including, without limitation, fortravel, entertainment and relocation expenses) in an aggregate amount for Holdings, the Borrowerand Subsidiaries of the Borrower not to exceed $3,000,000 at any one time outstanding;
          (e) the Acquisition;
          (f) Investments in assets useful in the Borrower’s business made by the Borrower or any of itsSubsidiaries with the proceeds of any Reinvestment Deferred Amount;
          (g) Investments (other than those relating to the incurrence of Indebtedness permitted bySection 7.8(c)) by the Borrower or any of its Subsidiaries in the Borrower or any Person that,prior to such Investment, is a Subsidiary Guarantor;
          (h) Permitted Acquisitions for consideration (whether in cash, Permitted Seller Notes, CapitalStock or property) not exceeding $65,000,000 in the aggregate for all such Permitted Acquisitionssubsequent to the Closing Date;
          (i) Investments (including debt obligations) received in the ordinary course of business bythe Borrower or any Subsidiary in connection with the bankruptcy or reorganization of

 


 

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suppliers andcustomers and in settlement or delinquent obligations of, and other disputes with, customers andsuppliers arising out of the ordinary course of business;
          (j) Investments by any Excluded Subsidiary in other Excluded Subsidiaries;
          (k) [Reserved];
          (l) Investments by any Loan Party in Excluded Subsidiaries (including Investments consistingof Dispositions of Property to such Excluded Subsidiary to the extent the consideration paid bysuch Excluded Subsidiary for such Property is less than the fair market value thereof, asreasonably determined by the Borrower), provided that the aggregate outstanding PermittedForeign Investment Amount at such time after giving effect thereto does not exceed the MaximumInvestment Amount;
          (m) Investments in existence on the Closing Date and listed on Schedule 7.8, without givingeffect to any additions thereto or replacements thereof;
          (n) Investments so long as the aggregate amount thereof (determined as the amount originallyadvanced, loaned or otherwise invested, less any returns on the respective investment not to exceedthe original amount invested) at no time exceeds $2,500,000;
          (o) Subsidiaries may be established or created, if (A) to the extent such new Subsidiary is aDomestic Subsidiary, such Subsidiary complies with the provisions of Section 6.10(c) and (B) ifsuch new Subsidiary is an Excluded Subsidiary, such Subsidiary complies with the provisions ofSection 6.10(d), provided, that, in each case, to the extent such new Subsidiary is createdsolely for the purpose of consummating a merger transaction pursuant to an acquisition permitted bySection 7.8(h), and such new Subsidiary at no time holds any assets or liabilities other than anymerger consideration contributed to it contemporaneously with the closing of such mergertransactions, such new Subsidiary shall not be required to take the actions set forth in Section6.10(c) or Section 6.10(d), as applicable, until the respective acquisition is consummated (atwhich time the surviving entity of the respective merger transaction shall be required to so complywithin ten Business Days);
          (p) Investments of Borrower or any Subsidiary under Hedge Agreements permitted hereunder; and
          (q) Investments of any Person in existence at the time such Person becomes a Subsidiary of theBorrower; provided such Investment was not made in connection with or anticipation of such Personbecoming a Subsidiary of the Borrower.
          7.9 Limitation on Optional Payments and Modifications of Debt Instruments, etc. (a)Make any optional or voluntary payment, prepayment, repurchase or redemption of, or otherwisevoluntarily or optionally defease, the Senior Subordinated Notes, or segregate funds for any suchpayment, prepayment, repurchase, redemption or defeasance (except in each case in connection withany refinancing permitted by Section 7.2(f)), or enter into any derivative or other transactionwith any Derivatives Counterparty obligating the Borrower or any Subsidiary to make payments tosuch Derivatives Counterparty as a result of any change in market value of the Senior SubordinatedNotes; provided that, notwithstanding the foregoing provisions of this clause (a), theBorrower shall be permitted to repurchase Senior Subordinated Notes in an aggregate principalamount of up to $75,000,000 subsequent to the Closing Date so long as after giving proforma effect to each such purchase, the Consolidated Senior Leverage Ratio would be lessthan or equal to 2.00:1:00, (b) amend, modify or otherwise change, or consent or agree to anyamendment, modification, waiver or other change to, any of the terms of the Senior SubordinatedNotes (other than any such amendment, modification, waiver or

 


 

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other change which (i) would extendthe maturity or reduce the amount of any payment of principal thereof, reduce the rate or extendthe date for payment of interest thereon or relax any covenant or other restriction applicable tothe Borrower or any of its Subsidiaries and (ii) does not involve the payment of a consent fee),(c) designate any Indebtedness (other than the Obligations) as “Designated Senior Indebtedness” forthe purposes of the Senior Subordinated Note Indenture or (d) amend its certificate ofincorporation in any manner reasonably determined by the Administrative Agent to be adverse to theLenders.
          7.10 Limitation on Transactions with Affiliates. Enter into any transaction,including, without limitation, any purchase, sale, lease or exchange of Property, the rendering ofany service or the payment of any management, advisory or similar fees, with any Affiliate (otherthan the Borrower or any Subsidiary Guarantor) unless such transaction is (a) otherwise notprohibited by this Agreement, (b) in the ordinary course of business of the Borrower or suchSubsidiary, as the case may be, and (c) upon fair and reasonable terms no less favorable to theBorrower or such Subsidiary, as the case may be, than it would obtain in a comparable arm’s lengthtransaction with a Person that is not an Affiliate. Notwithstanding the foregoing, (i) theBorrower and its Subsidiaries may pay fees and expenses to the Sponsor and its Control InvestmentAffiliates pursuant to the Management Agreement, (ii) the Borrower and its Subsidiaries may enterinto any transaction with anAffiliate that is expressly permitted by the terms of this Agreement to be entered into by theBorrower or such Subsidiary with an Affiliate and (iii) the Borrower and its Subsidiaries maywithout being subject to the foregoing requirements of this Section enter into transactions withany Person, a director of which is also a director of the Borrower, provided that such directorabstains from voting as a director of the Borrower on any matter involving such other Person, and(iv) transaction fees in connection with the Acquisition in an aggregate amount previouslydisclosed to the Administrative Agent shall be permitted.
          7.11 Limitation on Sales and Leasebacks. Enter into any arrangement with any Personproviding for the leasing by the Borrower or any Subsidiary of real or personal property which, asa part of the same transaction, has been or is to be sold or transferred by the Borrower or suchSubsidiary to such Person or to any other Person to whom funds have been or are to be advanced bysuch Person on the security of such property or rental obligations of the Borrower or suchSubsidiary, except for sale and leaseback transactions involving Property having a book value notexceeding $15,000,000 subsequent to the Closing Date.
          7.12 Limitation on Changes in Fiscal Periods. Permit the fiscal year of the Borrowerto end on a day other than December 31 or change the Borrower’s method of determining fiscalquarters.
          7.13 Limitation on Negative Pledge Clauses. Enter into or suffer to exist or becomeeffective any agreement that prohibits or limits the ability of the Borrower or any of itsSubsidiaries to create, incur, assume or suffer to exist any Lien upon any of its Property orrevenues, whether now owned or hereafter acquired, to secure the Obligations or, in the case of anyguarantor, its obligations under the Guarantee and Collateral Agreement, other than:
          (a) this Agreement and the other Loan Documents;
          (b) the Senior Subordinated Note Indenture (and the instruments or agreements governing anyIndebtedness permitted pursuant to Section 7.2(f)(ii));
          (c) any agreements governing any purchase money Liens or Capital Lease Obligations otherwisepermitted hereby (in which case, any prohibition or limitation shall only be effective against theassets financed thereby);

 


 

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          (d) any agreements regarding Indebtedness of any Excluded Subsidiary (in which case, anyprohibition or limitation shall only be effective against the assets of such Excluded Subsidiaryand its Subsidiaries);
          (e) customary provisions in joint venture agreements and similar agreements that restrict thetransfer of assets of, or equity interests in, Joint Ventures;
          (f) licenses or sublicenses by the Borrower and its Subsidiaries of intellectual property inthe ordinary course of business (in which case, any prohibition or limitation shall only beeffective against the intellectual property subject thereto); and
          (g) prohibitions and limitations in effect on the date hereof and listed on Schedule 7.13.
          7.14 Limitation on Restrictions on Subsidiary Distributions. Enter into or suffer toexist or become effective any consensual encumbrance or restriction on the ability of anySubsidiary to (a) make Restricted Payments in respect of any Capital Stock of such Subsidiary heldby, or pay any Indebtedness owed to, the Borrower or any other Subsidiary, (b) make Investments inthe Borrower or any other Subsidiary or (c) transfer any of its assets to the Borrower or any otherSubsidiary, except for such encumbrances or restrictions existing under or by reason of:
     (i) any restrictions existing under the Loan Documents;
     (ii) any restrictions with respect to a Subsidiary imposed pursuant to an agreementthat has been entered into in connection with the Disposition of all or substantially all ofthe Capital Stock or assets of such Subsidiary;
     (iii) any restrictions set forth in the Senior Subordinated Note Indenture (and theinstruments or agreements governing any Indebtedness permitted pursuant to Section7.2(f)(ii));
     (iv) any restrictions contained in agreements related to Indebtedness of any ExcludedSubsidiary (in which case such restriction shall relate only to such Excluded Subsidiary andits Subsidiaries),
     (v) customary provisions in joint venture agreements and similar agreements thatrestrict the transfer of equity interests in Joint Ventures (which are not Subsidiaries ofthe Borrower) (in which case such restrictions shall relate only to assets of, or equityinterests in, such Joint Venture);
     (vi) any restrictions regarding licenses or sublicenses by the Borrower and itsSubsidiaries of intellectual property in the ordinary course of business (in which casesuch restriction shall relate only to such intellectual property); and
     (vii) with respect to restrictions described in clause (c) of this Section 7.14,restrictions contained in agreements governing Indebtedness permitted by Sections 7.2(c) and7.2(d) hereof.
          7.15 Limitation on Lines of Business. Enter into any business, either directly orthrough any Subsidiary, except for those businesses in which the Borrower and its Subsidiaries areengaged on the date of this Agreement or that are reasonably related thereto or are reasonableextensions thereof.

 


 

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          7.16 Limitation on Hedge Agreements. Enter into any Hedge Agreement other than HedgeAgreements entered into in the ordinary course of business, and not for speculative purposes, toprotect against changes in interest rates, currency exchange rates, commodity prices or theexchange of nominal interest obligations.
          7.17 Limitation on Activities of Holdings. Not permit Holdings to (a) conduct,transact or otherwise engage in any business or operations other than those incidental to itsownership of the Capital Stock of the Borrower, (b) incur,create, assume or suffer to exist any Indebtedness, except (i) nonconsensual obligationsimposed by operation of law, (ii) obligations in respect of taxes imposed on Holdings as a memberof a consolidated group, (iii) indebtedness and obligations of Holdings pursuant to the LoanDocuments to which it is a party, (iv) obligations with respect to its Capital Stock, (v)Indebtedness subordinated to the Obligations on terms reasonably satisfactory to the AdministrativeAgent in an aggregate principal amount of up to $12,500,000, (vi) guarantees, letters of credit andperformance bonds in support of the operations of the Borrower and its Subsidiaries, and (vii) upto $7,000,000 in aggregate principal amount of other Indebtedness, or (c) own, lease, manage orotherwise operate (other than through ownership of the Borrower and its Subsidiaries) anyproperties or assets, other than (i) cash and Cash Equivalents and deposit and securities accountscomprised of cash and cash equivalents, (ii) the ownership of shares of Capital Stock of theBorrower, (iii) other assets, not material in amount, incidental to the operations of Holdings asthe holding company of the Borrower and (iv) other assets with an aggregate fair market value ofnot more than $5,000,000.
SECTION 8. EVENTS OF DEFAULT
          If any of the following events shall occur and be continuing:
          (a) The Borrower shall fail to pay any principal of any Loan or Reimbursement Obligation whendue in accordance with the terms hereof; or the Borrower shall fail to pay any interest on any Loanor Reimbursement Obligation, or any other amount payable hereunder or under any other LoanDocument, within five days after any such interest or other amount becomes due in accordance withthe terms hereof or thereof; or
          (b) Any representation or warranty made or deemed made by any Loan Party herein or in anyother Loan Document or that is contained in any certificate, document or financial or otherstatement furnished by it at any time under or in connection with this Agreement or any such otherLoan Document shall prove to have been inaccurate in any material respect on or as of the date madeor deemed made or furnished; or
          (c) Any Loan Party shall default in the observance or performance of any agreement containedin clause (i) or (ii) of Section 6.4(a) (with respect to the Borrower only), Section 6.7(a) orSection 7; or
          (d) Any Loan Party shall default in the observance or performance of any other agreementcontained in this Agreement or any other Loan Document (other than as provided in paragraphs (a)through (c) of this Section), and such default shall continue unremedied for a period of 30 daysafter notice thereof to the Borrower from the Administrative Agent or any Lender; or
          (e) The Borrower or any of its Subsidiaries shall (i) default in making any payment of anyprincipal of any Indebtedness for Borrowed Money (excluding the Loans and ReimbursementObligations) on the scheduled or original due date with respect thereto; or (ii) default in makingany payment of any interest on any such Indebtedness for Borrowed Money beyond the period of grace,if any, provided in the instrument or agreement under which such Indebtedness was created; or (iii)default

 


 

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in the observance or performance of any other agreement or condition relating to any suchIndebtedness for Borrowed Money or contained in any instrument or agreement evidencing, securing orrelating thereto, the effect of which default is to cause, or to permit the holder or beneficiaryof such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause, withthe giving of notice if required, such Indebtedness to become due prior to its stated maturity orto become subject to a mandatory offer to purchase by the obligor thereunder or (in the case of anysuch Indebtedness constituting a Guarantee Obligation) to become payable; provided, that adefault described in clause (i),(ii) or (iii) of this paragraph (e) shall not at any time constitute an Event of Defaultunless, at such time, one or more defaults of the type described in clauses (i), (ii) and (iii) ofthis paragraph (e) shall have occurred and be continuing with respect to Indebtedness theoutstanding principal amount of which exceeds in the aggregate $12,500,000; or
          (f) Holdings, the Borrower or any of its Material Subsidiaries shall commence any case,proceeding or other action (A) under any existing or future law of any jurisdiction, domestic orforeign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to havean order for relief entered with respect to it, or seeking to adjudicate it a bankrupt orinsolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation,dissolution, composition or other relief with respect to it or its debts, or (B) seekingappointment of a receiver, trustee, custodian, conservator or other similar official for it or forall or any substantial part of its assets, or Holdings, the Borrower or any of its MaterialSubsidiaries shall make a general assignment for the benefit of its creditors; or (ii) there shallbe commenced against Holdings, the Borrower or any of its Material Subsidiaries any case,proceeding or other action of a nature referred to in clause (i) above that (A) results in theentry of an order for relief or any such adjudication or appointment or (B) remains undismissed,undischarged or unbonded for a period of 60 days; or (iii) there shall be commenced againstHoldings, the Borrower or any of its Material Subsidiaries any case, proceeding or other actionseeking issuance of a warrant of attachment, execution, distraint or similar process against all orany substantial part of its assets that results in the entry of an order for any such relief thatshall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from theentry thereof; or (iv) Holdings, the Borrower or any of its Material Subsidiaries shall take anyaction in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of theacts set forth in clause (i), (ii), or (iii) above; or (v) Holdings, the Borrower or any of itsMaterial Subsidiaries shall generally not, or shall be unable to, or shall admit in writing itsinability to, pay its debts as they become due; or
          (g) (i) Any Person shall engage in any “prohibited transaction” (as defined in Section 406 ofERISA or Section 4975 of the Code) involving any Plan, (ii) any “accumulated funding deficiency”(as defined in Section 302 of ERISA), whether or not waived, shall exist with respect to any Plan,or any Lien in favor of the PBGC or a Plan shall arise on the assets of the Borrower or anyCommonly Controlled Entity, (iii) a Reportable Event shall occur with respect to, or proceedingsshall commence to have a trustee appointed, or a trustee shall be appointed, to administer or toterminate, any Single Employer Plan, which Reportable Event or commencement of proceedings orappointment of a trustee is, in the reasonable opinion of the Required Lenders, likely to result inthe termination of such Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan shallterminate for purposes of Title IV of ERISA, (v) the Borrower or any Commonly Controlled Entityshall, or in the reasonable opinion of the Required Lenders shall be likely to, incur any liabilityin connection with a withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Planor (vi) any other event or condition shall occur or exist with respect to a Plan; and in each casein clauses (i) through (vi) above, such event or condition, together with all other such events orconditions, if any, could reasonably be expected to have a Material Adverse Effect; or
          (h) One or more judgments or decrees shall be entered against Holdings, the Borrower or any ofits Material Subsidiaries involving for Holdings, the Borrower and its Material

 


 

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Subsidiaries takenas a whole a liability (not paid or covered by insurance or by an indemnity from a Solventindemnitor) of $12,500,000 or more, and all such judgments or decrees shall not have been vacated,discharged, stayed or bonded pending appeal within 30 days from the entry thereof; or
          (i) Except to the extent resulting from the gross negligence or willful misconduct of theAdministrative Agent, any of the Security Documents shall cease, for any reason (other than byreason of the express release thereof pursuant to Section 10.15), to be in full force and effect inany materialrespect, or any Loan Party shall so assert, or any Lien created by any of the SecurityDocuments shall cease in any material respect to be enforceable and of the same effect and prioritypurported to be created thereby (other than by reason of the express release thereof pursuant toSection 10.15); or
          (j) The guarantee contained in Section 2 of the Guarantee and Collateral Agreement shallcease, for any reason (other than by reason of the express release thereof pursuant to Section10.15), to be in full force and effect or any Loan Party shall so assert; or
          (k) Any Change of Control shall occur; or
          (l) The Senior Subordinated Notes or the guarantees thereof shall cease, for any reason, to bevalidly subordinated to the Obligations or the obligations of the Subsidiary Guarantors under theGuarantee and Collateral Agreement, as the case may be, as provided in the Senior Subordinated NoteIndenture, or any Loan Party shall so assert;
then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or(ii) of paragraph (f) above with respect to the Borrower, automatically the Commitments shallimmediately terminate and the Loans hereunder (with accrued interest thereon) and all other amountsowing under this Agreement and the other Loan Documents (including, without limitation, all amountsof L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Creditshall have presented the documents required thereunder) shall immediately become due and payable,and (B) if such event is any other Event of Default, either or both of the following actions may betaken: (i) with the consent of the Majority Revolving Credit Facility Lenders, the AdministrativeAgent may, or upon the request of the Majority Revolving Credit Facility Lenders, theAdministrative Agent shall, by notice to the Borrower declare the Revolving Credit Commitments tobe terminated forthwith, whereupon the Revolving Credit Commitments shall immediately terminate;and (ii) with the consent of the Required Lenders, the Administrative Agent may, or upon therequest of the Required Lenders, the Administrative Agent shall, by notice to the Borrower, declarethe Loans hereunder (with accrued interest thereon) and all other amounts owing under thisAgreement and the other Loan Documents (including, without limitation, all amounts of L/CObligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall havepresented the documents required thereunder) to be due and payable forthwith, whereupon the sameshall immediately become due and payable. In the case of all Letters of Credit with respect towhich presentment for honor shall not have occurred at the time of an acceleration pursuant to thisparagraph, the Borrower shall at such time deposit in a cash collateral account opened by theAdministrative Agent an amount equal to the aggregate then undrawn and unexpired amount of suchLetters of Credit. Amounts held in such cash collateral account shall be applied by theAdministrative Agent to the payment of drafts drawn under such Letters of Credit, and the unusedportion thereof after all such Letters of Credit shall have expired or been fully drawn upon, ifany, shall be applied to repay other obligations of the Borrower then due and owing hereunder andunder the other Loan Documents. After all such Letters of Credit shall have expired or been fullydrawn upon, all Reimbursement Obligations shall have been satisfied and all other obligations ofthe Borrower hereunder and under the other Loan Documents shall have been paid in full, thebalance, if any, in such cash collateral account shall be returned to the Borrower (or such otherPerson as may be lawfully entitled thereto).

 


 

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SECTION 9. THE AGENTS
          9.1 Appointment. Each Lender hereby irrevocably designates and appoints the Agents asthe agents of such Lender under this Agreement and the other Loan Documents, and each Lenderirrevocably authorizes each Agent, in such capacity, to take such action on its behalf under theprovisions of thisAgreement and the other Loan Documents and to exercise such powers and perform such duties asare expressly delegated to such Agent by the terms of this Agreement and the other Loan Documents,together with such other powers as are reasonably incidental thereto. Notwithstanding anyprovision to the contrary elsewhere in this Agreement, no Agent shall have any duties orresponsibilities, except those expressly set forth herein, or any fiduciary relationship with anyLender, and no implied covenants, functions, responsibilities, duties, obligations or liabilitiesshall be read into this Agreement or any other Loan Document or otherwise exist against any Agent.
          9.2 Delegation of Duties. Each Agent may execute any of its duties under thisAgreement and the other Loan Documents by or through agents or attorneys-in-fact and shall beentitled to advice of counsel concerning all matters pertaining to such duties. No Agent shall beresponsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it withreasonable care.
          9.3 Exculpatory Provisions. Neither any Agent nor any of its officers, directors,employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any action lawfullytaken or omitted to be taken by it or such Person under or in connection with this Agreement or anyother Loan Document (except to the extent that any of the foregoing are found by a final andnonappealable decision of a court of competent jurisdiction to have resulted from its or suchPerson’s own gross negligence or willful misconduct) or (ii) responsible in any manner to any ofthe Lenders for any recitals, statements, representations or warranties made by any Loan Party orany officer thereof contained in this Agreement or any other Loan Document or in any certificate,report, statement or other document referred to or provided for in, or received by the Agents underor in connection with, this Agreement or any other Loan Document or for the value, validity,effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other LoanDocument or for any failure of any Loan Party to perform its obligations hereunder or thereunder.The Agents shall not be under any obligation to any Lender to ascertain or to inquire as to theobservance or performance of any of the agreements contained in, or conditions of, this Agreementor any other Loan Document, or to inspect the properties, books or records of any Loan Party.
          9.4 Reliance by Agents. Each Agent shall be entitled to rely, and shall be fullyprotected in relying, upon any instrument, writing, resolution, notice, consent, certificate,affidavit, letter, telecopy, telex or teletype message, statement, order or other document orconversation believed by it to be genuine and correct and to have been signed, sent or made by theproper Person or Persons and upon advice and statements of legal counsel (including, withoutlimitation, counsel to the Loan Parties), independent accountants and other experts selected bysuch Agent. The Agents may deem and treat the payee of any Note as the owner thereof for allpurposes unless such Note shall have been transferred in accordance with Section 10.6 and allactions required by such Section in connection with such transfer shall have been taken. EachAgent shall be fully justified in failing or refusing to take any action under this Agreement orany other Loan Document unless it shall first receive such advice or concurrence of the RequiredLenders (or, if so specified by this Agreement, all Lenders or any other instructing group ofLenders specified by this Agreement) as it deems appropriate or it shall first be indemnified toits satisfaction by the Lenders against any and all liability and expense that may be incurred byit by reason of taking or continuing to take any such action. Each Agent shall in all cases befully protected in acting, or in refraining from acting, under this Agreement and the other LoanDocuments in accordance with a request of the Required Lenders (or, if so specified by thisAgreement, all Lenders or any other instructing group of Lendersspecified by this Agreement), and such request and any action taken or failure to act pursuantthereto shall be binding upon all the Lenders and all future holders of the Loans.

 


 

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          9.5 Notice of Default. No Agent shall be deemed to have knowledge or notice of theoccurrence of any Default or Event of Default hereunder unless such Agent shall have receivednotice from a Lender or the Borrower referring to this Agreement, describing such Default or Eventof Default and stating that such notice is a “notice of default”. In the event that theAdministrative Agent shall receive such a notice, the Administrative Agent shall give noticethereof to the Lenders. The Administrative Agent shall take such action with respect to suchDefault or Event of Default as shall be reasonably directed by the Required Lenders (or, if sospecified by this Agreement, all Lenders or any other instructing group of Lenders specified bythis Agreement); provided that unless and until the Administrative Agent shall havereceived such directions, the Administrative Agent may (but shall not be obligated to) take suchaction, or refrain from taking such action, with respect to such Default or Event of Default as itshall deem advisable in the best interests of the Lenders.
          9.6 Non-Reliance on Agents and Other Lenders. Each Lender expressly acknowledges thatneither any of the Agents nor any of their respective officers, directors, employees, agents,attorneys-in-fact or affiliates have made any representations or warranties to it and that no actby any Agent hereafter taken, including any review of the affairs of a Loan Party or any affiliateof a Loan Party, shall be deemed to constitute any representation or warranty by any Agent to anyLender. Each Lender represents to the Agents that it has, independently and without reliance uponany Agent or any other Lender, and based on such documents and information as it has deemedappropriate, made its own appraisal of and investigation into the business, operations, property,financial and other condition and creditworthiness of the Loan Parties and their affiliates andmade its own decision to make its Loans hereunder and enter into this Agreement. Each Lender alsorepresents that it will, independently and without reliance upon any Agent or any other Lender, andbased on such documents and information as it shall deem appropriate at the time, continue to makeits own credit analysis, appraisals and decisions in taking or not taking action under thisAgreement and the other Loan Documents, and to make such investigation as it deems necessary toinform itself as to the business, operations, property, financial and other condition andcreditworthiness of the Loan Parties and their affiliates. Except for notices, reports and otherdocuments expressly required to be furnished to the Lenders by the Administrative Agent hereunder,no Agent shall have any duty or responsibility to provide any Lender with any credit or otherinformation concerning the business, operations, property, condition (financial or otherwise),prospects or creditworthiness of any Loan Party or any affiliate of a Loan Party that may come intothe possession of such Agent or any of its officers, directors, employees, agents,attorneys-in-fact or affiliates.
          9.7 Indemnification. The Lenders agree to indemnify each Agent in its capacity assuch (to the extent not reimbursed by the Borrower and without limiting the obligation of theBorrower to do so), ratably according to their respective Aggregate Exposure Percentages in effecton the date on which indemnification is sought under this Section (or, if indemnification is soughtafter the date upon which the Commitments shall have terminated and the Loans shall have been paidin full, ratably in accordance with such Aggregate Exposure Percentages immediately prior to suchdate), for, and to save each Agent harmless from and against, any and all liabilities, obligations,losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kindwhatsoever that may at any time (including, without limitation, at any time following the paymentof the Loans) be imposed on, incurredby or asserted against such Agent in any way relating to or arising out of, the Commitments,this Agreement, any of the other Loan Documents or any documents contemplated by or referred toherein or therein or the transactions contemplated hereby or thereby or any action taken or omittedby such Agent under or in connection with any of the foregoing; provided that no Lendershall be liable for the payment of any portion of such liabilities, obligations, losses, damages,penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a finaland nonappealable decision of a court of competent jurisdiction to have resulted from such Agent’sgross negligence or willful misconduct. The agreements in this Section shall survive the paymentof the Loans and all other amounts payable hereunder.

 


 

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          9.8 Agent in Its Individual Capacity. Each Agent and its affiliates may make loansto, accept deposits from and generally engage in any kind of business with any Loan Party as thoughsuch Agent were not an Agent. With respect to its Loans made or renewed by it and with respect toany Letter of Credit issued or participated in by it, each Agent shall have the same rights andpowers under this Agreement and the other Loan Documents as any Lender and may exercise the same asthough it were not an Agent, and the terms “Lender” and “Lenders” shall include each Agent in itsindividual capacity.
          9.9 Successor Administrative Agent. The Administrative Agent may resign asAdministrative Agent upon 30 days’ notice to the Lenders and the Borrower. If the AdministrativeAgent shall resign as Administrative Agent under this Agreement and the other Loan Documents, thenthe Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, whichsuccessor agent shall (unless an Event of Default under Section 8(a) or Section 8(f) with respectto the Borrower shall have occurred and be continuing) be subject to approval by the Borrower(which approval shall not be unreasonably withheld or delayed), whereupon such successor agentshall succeed to the rights, powers and duties of the Administrative Agent, and the term“Administrative Agent” shall mean such successor agent effective upon such appointment andapproval, and the former Administrative Agent’s rights, powers and duties as Administrative Agentshall be terminated, without any other or further act or deed on the part of such formerAdministrative Agent or any of the parties to this Agreement or any holders of the Loans. If nosuccessor agent has accepted appointment as Administrative Agent by the date that is 30 daysfollowing a retiring Administrative Agent’s notice of resignation, the retiring AdministrativeAgent shall, in consultation with the Borrower, appoint a successor Administrative Agent (whichsuccessor agent shall be a financial institution of nationally-recognized standing that, in theordinary course of business, performs functions equivalent to those of the Administrative Agenthereunder), and the retiring Administrative Agent’s resignation shall become effective only uponsuch appointment. After any retiring Administrative Agent’s resignation as Administrative Agent,the provisions of this Section 9 shall inure to its benefit as to any actions taken or omitted tobe taken by it while it was Administrative Agent under this Agreement and the other Loan Documents.
          9.10 Authorization to Release Liens and Guarantees. The Administrative Agent ishereby irrevocably authorized by each of the Lenders to effect any release of Liens or guaranteeobligations contemplated by Section 10.15.
          9.11 The Joint Lead Arrangers; the Syndication Agent; the Co-Documentation Agents.None of the Joint Lead Arrangers, the Syndication Agent, or any of the Co-Documentation Agents, intheir respective capacities as such, shall have any duties or responsibilities, or shall incur anyliability, under this Agreement or the other Loan Documents.
SECTION 10. MISCELLANEOUS
          10.1 Amendments and Waivers. Neither this Agreement or any other Loan Document, norany terms hereof or thereof may be amended, supplemented or modified except in accordance with theprovisions of this Section 10.1. The Required Lenders and each Loan Party party to the relevantLoan Document may, or (with the written consent of the Required Lenders) the Agents and each LoanParty party to the relevant Loan Document may, from time to time, (a) enter into writtenamendments, supplements or modifications hereto and to the other Loan Documents (includingamendments and restatements hereof or thereof) for the purpose of adding any provisions to thisAgreement or the other Loan Documents or changing in any manner the rights of the Lenders or of theLoan Parties hereunder or thereunder or (b) waive, on such terms and conditions as may be specifiedin the instrument of waiver, any of the requirements of this Agreement or the other Loan Documentsor any

 


 

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Default or Event of Default and its consequences; provided, however, that nosuch waiver and no such amendment, supplement or modification shall:
  (i)   forgive or reduce any principal amount orextend or postpone the final scheduled date of maturity of any Loan orReimbursement Obligation, extend the scheduled date of any amortizationpayment in respect of any Tranche D Term Loan, reduce the stated rateof any interest or fee payable hereunder (it being understood that anyamendment or modification to the financial definitions in thisAgreement shall not constitute a reduction in fees or the rate ofinterest) or extend the scheduled date of any payment thereof, orincrease the amount or extend the expiration date of any Commitment ofany Lender (it being understood that waivers or modifications ofconditions precedent, covenants, Defaults or Events of Default or of amandatory reduction in the Commitments shall not constitute an increaseor extension of a Commitment), in each case without the consent of eachLender directly and adversely affected thereby;
 
  (ii)   amend, modify or waive any provision of thisSection without the consent of each Lender directly and adverselyaffected thereby;
 
  (iii)   reduce any percentage specified in thedefinition of Required Lenders, consent to the assignment or transferby the Borrower of any of its rights and obligations under thisAgreement and the other Loan Documents, release all or substantiallyall of the Collateral or release all or substantially all of theSubsidiary Guarantors from their guarantee obligations under theGuarantee and Collateral Agreement, in each case without the consent ofall Lenders;
 
  (iv)   reduce the percentage specified in thedefinition of Majority Facility Lenders with respect to any Facilitywithout the written consent of all Lenders under such Facility;
 
  (v)   amend, modify or waive any provision of Section9 without the consent of any Agent directly and adversely affectedthereby;
 
  (vi)   amend, modify or waive any provision of Section2.6 or 2.7 without the written consent of the Swing Line Lender;
 
  (vii)   amend, modify or waive any provision ofSection 2.18 without the consent of each Lender directly and adverselyaffected thereby; or
 
  (viii)   amend, modify or waive any provision of Section 3 without the consentof each Issuing Lender directly and adversely affected thereby.
Any such waiver and any such amendment, supplement or modification shall apply equally to each ofthe Lenders and shall be binding upon the Loan Parties, the Lenders, the Agents and all futureholders of the Loans. In the case of any waiver, the Loan Parties, the Lenders and the Agentsshall be restored to their former position and rights hereunder and under the other Loan Documents,and any Default or Event of Default waived shall be deemed to be cured and not continuing; but nosuch waiver shall extend to any subsequent or other Default or Event of Default, or impair anyright consequent thereon. Any such

 


 

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waiver, amendment, supplement or modification shall be effectedby a written instrument signed by the parties required to sign pursuant to the foregoing provisionsof this Section; provided, that delivery of an executed signature page of any suchinstrument by facsimile transmission shall be effective as delivery of a manually executedcounterpart thereof.
          For the avoidance of doubt, this Agreement and any other Loan Document may be amended (oramended and restated) with the written consent of the Required Lenders, the Administrative Agentand each Loan Party to each relevant Loan Document (x) to add one or more additional creditfacilities to this Agreement and to permit the extensions of credit from time to time outstandingthereunder and the accrued interest and fees in respect thereof (collectively, the “AdditionalExtensions of Credit”) to share ratably in the benefits of this Agreement and the other LoanDocuments with the Tranche D Term Loans and Revolving Extensions of Credit and the accrued interestand fees in respect thereof and (y) to include appropriately the Lenders holding such creditfacilities in any determination of the Required Lenders and Majority Revolving Facility Lenders.
          10.2 Notices. All notices, requests and demands to or upon the respective partieshereto to be effective shall be in writing (including by telecopy), and, unless otherwise expresslyprovided herein, shall be deemed to have been duly given or made when delivered, or three BusinessDays after being deposited in the mail, postage prepaid, or, in the case of telecopy notice, whenreceived, addressed (a) in the case of the Borrower and the Agents, as follows and (b) in the caseof the Lenders, as set forth in an administrative questionnaire delivered to the AdministrativeAgent or, in the case of a Lender which becomes a party to this Agreement pursuant to an Assignmentand Acceptance, in such Assignment and Acceptance or (c) in the case of any party, to such otheraddress as such party may hereafter notify to the other parties hereto:
         
 
  The Borrower:   United Components, Inc.
 
      14601 Highway 41N
 
      Evansville, Indiana 47725
 
      Attention: Chief Financial Officer
 
      Telecopy: (812) 867-4157
 
      Telephone: (812) 867-4156
 
       
 
  with a copy to:   The Carlyle Group
 
      1001 Pennsylvania Avenue, N.W.
 
      Suite 200
 
      Washington, D. C. 20004
 
      Attention: Mr. Ian Fujiyama
 
      Telecopy: 202-347-1818
 
      Telephone: 202-347-2626
 
       
 
  The Syndication Agent:   JPMorgan Chase Bank, N.A.
 
      Loan & Agency Services
 
      1111 Fannin-10th Floor
 
      Houston, Texas 77002
 
      Attention: Debbie Meche
 
      Telecopy: 713-750-2938
 
      Telephone: 713-750-7917

 


 

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  with a copy to:   JPMorgan Chase Bank, N.A.
 
      270 Park Avenue – 4th Floor
 
      New York, New York 10017
 
      Attention: Richard Duker
 
      Telecopy: 212-270-5127
 
      Telephone: 212-2702-3057
 
       
 
  The Administrative Agent:   Lehman Commercial Paper Inc.
 
      745 Seventh Avenue, 5th Floor
 
      New York, New York 10019
 
      Attention: Portfolio Manager – United Components
 
      Telecopy: 646-834-4997
 
      Telephone: 212-526-1456
 
       
 
  Issuing Lender:   As notified by such Issuing Lender to the Administrative Agent andthe Borrower
provided that any notice, request or demand to or upon the any Agent, the Issuing Lender orany Lender shall not be effective until received.
          10.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay inexercising, on the part of any Agent or any Lender, any right, remedy, power or privilege hereunderor under the other Loan Documents shall operate as a waiver thereof; nor shall any single orpartial exercise of any right, remedy, power or privilege hereunder preclude any other or furtherexercise 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.
          10.4 Survival of Representations and Warranties. All representations and warrantiesmade herein, in the other Loan Documents and in any document, certificate or statement deliveredpursuant hereto or in connection herewith shall survive the execution and delivery of thisAgreement and the making of the Loans and other extensions of credit hereunder.
          10.5 Payment of Expenses. The Borrower agrees (a) to pay or reimburse the Administrative Agent, the Syndication Agentand the Joint Lead Arrangers for all their reasonable, documented out-of-pocket costs and expensesactually incurred in connection with the syndication of the Facilities (other than fees payable tosyndicate members) and the development, preparation and execution of, and any amendment, supplementor modification to, this Agreement and the other Loan Documents and any other documents prepared inconnection herewith or therewith, and the consummation and administration of the transactionscontemplated hereby and thereby, including, without limitation, the reasonable documented fees anddisbursements and other charges of Simpson Thacher & Bartlett LLP and, if necessary, one localcounsel per relevant jurisdiction and the portion of the out-of-pocket costs of the AdministrativeAgent in respect of the charges of Intralinks that are allocated (ratably based upon the number oftransactions covered by such charges) to the Facilities, (b) to pay or reimburse each Lender andthe Agents for all their documented out-of-pocket costs and expenses incurred in connection withthe enforcement or preservation of any rights under this Agreement, the other Loan Documents andany other documents prepared in connection herewith or therewith, including, without limitation,the documented fees and disbursements of counsel to each Lender and of counsel to the Agents, (c)to pay, indemnify, or reimburse each Lender and the Agents for, and hold each Lender and the Agentsharmless from, any and all recording and filing fees and any and all liabilities with respect to,or resulting from any delay in

 


 

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paying, stamp, excise and other taxes, if any, which may be payableor determined to be payable in connection with the execution and delivery of, or consummation oradministration of any of the transactions contemplated by, or any amendment, supplement ormodification of, or any waiver or consent under or in respect of, this Agreement, the other LoanDocuments and any such other documents, and (d) to pay, indemnify or reimburse each Lender, eachAgent, their respective affiliates, and their respective officers, directors, trustees, employees,advisors, agents and controlling persons (each, an “Indemnitee”) for, and hold eachIndemnitee harmless from and against any and all other liabilities, obligations, losses, damages,penalties, costs, expenses or disbursements arising out of any actions, judgments, suits or otherjudicial or arbitral proceedings of any kind or nature whatsoever, or any investigation relatingthereto, in each case with respect to the execution, delivery, enforcement, performance andadministration of this Agreement, the other Loan Documents and any such other documents, including,without limitation, any of the foregoing relating to the use of proceeds of the Loans or theviolation of, noncompliance with or liability under, any Environmental Law applicable to theoperations of the Borrower any of its Subsidiaries or any of the Properties and the fees anddisbursements and other charges of legal counsel in connection with claims, actions or proceedingsby any Indemnitee against the Borrower hereunder (all the foregoing in this clause (d),collectively, the “Indemnified Liabilities”), provided, that the Borrower shallhave no obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to theextent such Indemnified Liabilities are found by a final and nonappealable decision of a court ofcompetent jurisdiction to have resulted from the gross negligence or willful misconduct of suchIndemnitee or its affiliates, officers, directors, trustees, employees, advisors, agents orcontrolling persons. No Indemnitee shall be liable for any damages arising from the use byunauthorized persons of Information or other materials sent through electronic, telecommunicationsor other information transmission systems that are intercepted by such persons (unless such damagesresult from the gross negligence or willful misconduct of such Indemnitee or its affiliates,officers, directors, trustees, employees, advisors, agents or controlling persons) or for anyspecial, indirect, consequential or punitive damages in connection with the Facilities. Allamounts due under this Section shall be payable not later than 30 days after written demandtherefor. Statements payable by the Borrower pursuant to this Section shall be submitted to UnitedComponents, Inc., Attention: Chief Financial Officer (Telephone No. (618) 445-6011) (Fax No. (618)456-2260), at the address of the Borrower set forth in Section 10.2, or to such other Person oraddress as may be hereafter designated by the Borrower in a notice to the Administrative Agent.The agreements in this Section shall survive repayment of the Loans and all other amounts payablehereunder.
          10.6 Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Borrower, theLenders, the Agents, all future holders of the Loans and their respective successors and permittedassigns, except that the Borrower may not assign or transfer any of its rights or obligations underthis Agreement without the prior written consent of the Agents and each Lender.
          (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, atany time sell to one or more banks, financial institutions or other entities (each, a“Participant”) participating interests in any Loan owing to such Lender, any Commitment ofsuch Lender or any other interest of such Lender hereunder and under the other Loan Documents;unless consented to by the Borrower, no such participation may be sold to any competitor of theBorrower and its Subsidiaries. In the event of any such sale by a Lender of a participatinginterest to a Participant, such Lender’s obligations under this Agreement to the other parties tothis Agreement shall remain unchanged, such Lender shall remain solely responsible for theperformance thereof, such Lender shall remain the holder of any such Loan for all purposes underthis Agreement and the other Loan Documents, and the Borrower and the Agents shall continue to dealsolely and directly with such Lender in connection with such Lender’s rights and obligations underthis Agreement and the other Loan Documents. In no event shall any Participant under any suchparticipation have any right to approve any amendment or waiver of

 


 

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any provision of any LoanDocument, or any consent to any departure by any Loan Party therefrom, except to the extent thatsuch amendment, waiver or consent would require the consent of all Lenders pursuant to Section10.1. The Borrower also agrees that each Participant shall be entitled to the benefits of Sections2.19, 2.20 and 2.21 with respect to its participation in the Commitments and the Loans outstandingfrom time to time as if such Participant were a Lender; provided that, in the case ofSection 2.20, such Participant shall have complied with the requirements of said Section, andprovided, further, that no Participant shall be entitled to receive any greateramount pursuant to any such Section than the transferor Lender would have been entitled to receivein respect of the amount of the participation transferred by such transferor Lender to suchParticipant had no such transfer occurred.
          (c) Any Lender (an “Assignor”) may, in accordance with applicable law, at any time andfrom time to time assign to any Lender or any affiliate, Related Fund or Control InvestmentAffiliate thereof or, with the consent of the Borrower and the Administrative Agent and, in thecase of any assignment of Revolving Credit Commitments, the written consent of the Issuing Lenderand the Swing Line Lender (which, in each case, shall not be unreasonably withheld or delayed)(provided that the consent of the Borrower need not be obtained with respect to anyassignment during the continuance of an Event of Default), to an additional bank, financialinstitution or other entity (an “Assignee”) all or any part of its rights and obligationsunder this Agreement pursuant to an Assignment and Acceptance, substantially in the form of ExhibitE, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Agentsor the Issuing Lender or the Swing Line Lender is required pursuant to the foregoing provisions,by the Borrower and such other Persons) and delivered to the Administrative Agent for itsacceptance and recording in the Register; provided that (A) no such assignment to anAssignee (other than any Lender or any affiliate, Control Investment Affiliate or Related Fundthereof) shall be in an aggregate principal amount of less than $1,000,000, in the case ofassignments of Loans and Commitments under the Tranche D Term Loan Facility, or $5,000,000, in thecase of assignments of Loans and Commitments under any other Facility (in each case other than inthe case of an assignment of all of a Lender’s interests under this Agreement), unless otherwiseagreed by the Borrower and the Administrative Agent and (B) unless consented to by the Borrower, nosuch assignment may be made to any competitor of the Borrower and its Subsidiaries. Any suchassignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptanceand recording, from and after the effective date determined pursuant to such Assignment andAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in suchAssignment and Acceptance, have the rights and obligations of a Lender hereunder with Commitmentsand/or Loans as set forth therein, (y) the Assignor thereunder shall, to the extent provided insuch Assignment and Acceptance, be released from its obligations underthis Agreement (and, in the case of an Assignment and Acceptance covering all of an Assignor’srights and obligations under this Agreement, such Assignor shall cease to be a party hereto, exceptas to Section 2.19, 2.20 and 10.5 in respect of the period prior to such effective date) and (z)the Assignee will be treated as a Lender for purposes of Sections 2.19 and 2.20. For purposes ofthe minimum assignment amounts set forth in this paragraph, multiple assignments by two or moreRelated Funds or Control Investment Affiliates shall be aggregated.
          (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its addressreferred to in Section 10.2 a copy of each Assignment and Acceptance delivered to it and a register(the “Register”) for the recordation of the names and addresses of the Lenders and theCommitment of, and principal amount of the Loans owing to, each Lender from time to time. Theentries in the Register shall be presumptively correct, in the absence of manifest error, and theBorrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Registeras the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes ofthis Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effectiveonly upon appropriate entries with respect thereto being made in the Register (and each Note shallexpressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Noteshall be registered on the Register only

 


 

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upon surrender for registration of assignment or transferof the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance;thereupon one or more new Notes in the same aggregate principal amount shall be issued to thedesignated Assignee, and the old Notes shall be returned by the Administrative Agent to theBorrower marked “canceled”. The Register shall be available for inspection by the Borrower or anyLender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and fromtime to time upon reasonable prior notice. If any amendment or waiver relating to this Agreementor any other Loan Document is pending, at the request of any Lender, the Administrative Agent shallprovide such Lender with a list of the names of all the Lenders. The Administrative Agent shalladvise the Borrower, quarterly and otherwise upon the Borrower’s request, of all assignmentsrecorded by the Administrative Agent pursuant hereto.
          (e) Upon its receipt of an Assignment and Acceptance executed by an Assignor and an Assignee(and, in any case where the consent of any other Person is required by Section 10.6(c), by eachsuch other Person) together with payment to the Administrative Agent of a registration andprocessing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more RelatedFunds as a single assignment) (except that no such registration and processing fee shall be payable(y) in connection with an assignment by or to a Lehman Entity or (z) in the case of an Assigneewhich is already a Lender or is an affiliate or Related Fund of a Lender or a Person under commonmanagement with a Lender), the Administrative Agent shall (i) promptly accept such Assignment andAcceptance and (ii) on the effective date determined pursuant thereto record the informationcontained therein in the Register and give notice of such acceptance and recordation to theBorrower. On or prior to such effective date, the Borrower, at its own expense, upon request,shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Noteand/or applicable Tranche D Term Notes, as the case may be, of the assigning Lender) a newRevolving Credit Note and/or applicable Tranche D Term Notes, as the case may be, to the order ofsuch Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Tranche DTerm Loans, as the case may be, assumed or acquired by it pursuant to such Assignment andAcceptance and, if the Assignor has retained a Revolving Credit Commitment and/or Tranche D TermLoans, as the case may be, upon request, a new Revolving Credit Note and/or Tranche D Term Notes,as the case may be, to the order of the Assignor in an amount equal to the Revolving CreditCommitment and/or applicable Tranche D Term Loans, as the case may be, retained by it hereunder.Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of theNote or Notes replaced thereby.
          (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions ofthis Section concerning assignments of Loans and Notes relate only to absolute assignments and thatsuch provisions do not prohibit assignments creating security interests in Loans and Notes,including, without limitation, any pledge or assignment by a Lender of any Loan or Note to anyFederal Reserve Bank in accordance with applicable law.
          (g) Notwithstanding anything to the contrary contained herein, any Lender (a “GrantingLender”) may grant to a special purpose funding vehicle (an “SPC”), identified as suchin 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 wouldotherwise be obligated to make to the Borrower pursuant to this Agreement; provided that(i) nothing herein shall constitute a commitment by any SPC to make any Loan, (ii) if an SPC electsnot to exercise such option or otherwise fails to provide all or any part of such Loan, theGranting Lender shall be obligated to make such Loan pursuant to the terms hereof and (iii) theGranting Lender’s obligations under this Agreement to the other parties to this Agreement shallremain unchanged, the Granting Lender shall remain solely responsible for the performance thereof,and the Borrower and the Agents shall continue to deal solely and directly with such GrantingLender in connection with such Lender’s rights and obligations under this Agreement and the otherLoan Documents. The making of a Loan by an SPC hereunder shall utilize the

 


 

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Commitment of theGranting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Eachparty hereto hereby agrees that no SPC shall be liable for any indemnity or similar paymentobligation 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 thetermination of this Agreement) that, prior to the date that is one year and one day after thepayment in full of all outstanding commercial paper or other indebtedness of any SPC, it will notinstitute against, or join any other person in instituting against, such SPC any bankruptcy,reorganization, arrangement, insolvency or liquidation proceedings under the laws of the UnitedStates or any state thereof. In addition, notwithstanding anything to the contrary in this Section10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower andthe Administrative Agent and without paying any processing fee therefor, assign all or a portion ofits interests in any Loans to the Granting Lender, or with the prior written consent of theBorrower and the Administrative Agent (which consent shall not be unreasonably withheld) to anyfinancial institutions providing liquidity and/or credit support to or for the account of such SPCto support the funding or maintenance of Loans, and (B) disclose on a confidential basis anynon-public information relating to its Loans to any rating agency, commercial paper dealer orprovider of any surety, guarantee or credit or liquidity enhancement to such SPC; providedthat non-public information with respect to the Borrower may be disclosed only with the Borrower’sconsent which will not be unreasonably withheld. In the event that the consent of all or anyportion of the Lenders is required pursuant to any provision of any Loan Document at a time whenany Loan is held by any SPC, such SPC and the Granting Lender that would otherwise have beenobligated to make such Loan shall agree between themselves as to which of them shall be entitled togrant or withhold any consent applicable to such Loan, but such Granting Lender shall communicatewith the Administrative Agent and the Borrower as to the giving or withholding of such consent, andthe parties to the Loan Documents shall be entitled to rely conclusively on the advice by suchGranting Lender as to whether such consent is being granted or withheld. This paragraph (g) may notbe amended without the written consent of any SPC with Loans outstanding at the time of suchproposed amendment.
          10.7 Adjustments; Set-off. (a) Except to the extent that this Agreement provides forpayments to be allocated to a particular Lender or to the Lenders under a particular Facility, ifany Lender (a “Benefitted Lender”) shall at any time receive any payment of all or part ofthe Obligations owing to it, or receive any collateral in respect thereof (whether voluntarily orinvoluntarily, by set-off, pursuant to events or proceedings of thenature referred to in Section 8(f), or otherwise), in a greater proportion than any suchpayment to or collateral received by any other Lender, if any, in respect of such other Lender’sObligations, such Benefitted Lender shall purchase for cash from the other Lenders a participatinginterest in such portion of each such other Lender’s Obligations, or shall provide such otherLenders with the benefits of any such collateral, as shall be necessary to cause such BenefittedLender to share the excess payment or benefits of such collateral ratably with each of the Lenders;provided, however, that if all or any portion of such excess payment or benefits isthereafter recovered from such Benefitted Lender, such purchase shall be rescinded, and thepurchase price and benefits returned, to the extent of such recovery, but without interest.
          (b) In addition to any rights and remedies of the Lenders provided by law, each Lender shallhave the right, without prior notice to the Borrower, any such notice being expressly waived by theBorrower to the extent permitted by applicable law, upon any amount becoming due and payable by theBorrower hereunder (whether at the stated maturity, by acceleration or otherwise after theexpiration of any applicable grace period), to set off and appropriate and apply against suchamount any and all deposits (general or special, time or demand, provisional or final, but nottrust accounts), 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 timeheld or owing by such Lender or any branch or agency thereof to or for the credit or the account ofthe Borrower. Each Lender agrees promptly to notify the Borrower and the Administrative Agentafter any such setoff and application made by such

 


 

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Lender, provided that the failure togive such notice shall not affect the validity of such setoff and application.
          10.8 Counterparts. This Agreement may be executed by one or more of the parties tothis Agreement on any number of separate counterparts, and all of said counterparts taken togethershall be deemed to constitute one and the same instrument. Delivery of an executed signature pageof this Agreement or of a Lender Addendum by facsimile transmission shall be effective as deliveryof a manually executed counterpart hereof. A set of the copies of this Agreement signed by all theparties shall be lodged with the Borrower and the Administrative Agent.
          10.9 Severability. Any provision of this Agreement that is prohibited orunenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent ofsuch prohibition or unenforceability without invalidating the remaining provisions hereof, and anysuch prohibition or unenforceability in any jurisdiction shall not invalidate or renderunenforceable such provision in any other jurisdiction.
          10.10 Integration. This Agreement and the other Loan Documents represent the entireagreement of the Borrower, the Agents, the Joint Lead Arrangers and the Lenders with respect to thesubject matter hereof and thereof, and there are no promises, undertakings, representations orwarranties by the Joint Lead Arrangers, any Agent or any Lender relative to subject matter hereofnot expressly set forth or referred to herein or in the other Loan Documents.
          10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BEGOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
          10.12 Submission To Jurisdiction; Waivers. The Borrower hereby irrevocably andunconditionally:
          (a) submits for itself and its Property in any legal action or proceeding relating to thisAgreement and the other Loan Documents to which it is a party, or for recognition and enforcementof any judgment in respect thereof, to the non-exclusive general jurisdiction of the courts of theState of New York, the courts of the United States of America for the Southern District of NewYork, and appellate courts from any thereof;
          (b) consents that any such action or proceeding may be brought in such courts and waives anyobjection that it may now or hereafter have to the venue of any such action or proceeding in anysuch court or that such action or proceeding was brought in an inconvenient court and agrees not toplead or claim the same;
          (c) agrees that service of process in any such action or proceeding may be effected by mailinga copy thereof by registered or certified mail (or any substantially similar form of mail), postageprepaid, to the Borrower at its address set forth in Section 10.2 or at such other address of whichthe Administrative Agent shall have been notified pursuant thereto;
          (d) agrees that nothing herein shall affect the right to effect service of process in anyother manner permitted by law or shall limit the right to sue in any other jurisdiction; and

 


 

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          (e) waives, to the maximum extent not prohibited by law, any right it may have to claim orrecover in any legal action or proceeding referred to in this Section any special, exemplary,punitive or consequential damages.
          10.13 Acknowledgments. The Borrower hereby acknowledges that:
          (a) it has been advised by counsel in the negotiation, execution and delivery of thisAgreement and the other Loan Documents;
          (b) neither the Joint Lead Arrangers, any Agent nor any Lender has any fiduciary relationshipwith or duty to the Borrower arising out of or in connection with this Agreement or any of theother Loan Documents, and the relationship between the Joint Lead Arrangers, the Agents and theLenders, on one hand, and the Borrower, on the other hand, in connection herewith or therewith issolely that of debtor and creditor; and
          (c) no joint venture is created hereby or by the other Loan Documents or otherwise exists byvirtue of the transactions contemplated hereby among the Joint Lead Arrangers, the Agents and theLenders or among the Borrower and the Lenders.
          10.14 Confidentiality. Each of the Agents and the Lenders agrees to keep confidential all non-public informationprovided to it by any Loan Party pursuant to this Agreement; provided that nothing herein shallprevent any Agent or any Lender from disclosing any such information (a) to the Joint LeadArrangers, any Agent, any other Lender or any affiliate of any thereof, (b) to any Participant orAssignee (each, a “Transferee”) or prospective Transferee that agrees to comply with theprovisions of this Section or substantially equivalent provisions, (c) to any of its employees,directors, agents, attorneys, accountants and other professional advisors, (d) to any financialinstitution that is a direct or indirect contractual counterparty in swap agreements or suchcontractual counterparty’s professional advisor (so long as such contractual counterparty orprofessional advisor to such contractual counterparty agrees to be bound by the provisions of thisSection), (e) upon the request or demand of any Governmental Authority having jurisdiction over it,(f) in response to any order of any court or other Governmental Authority or as may otherwise berequired pursuant to any Requirement of Law, (g) in connection with any litigation or similarproceeding, (h) that has been publicly disclosed other than in breach of this Section, (i) to theNational Association of Insurance Commissioners or any similar organization or any nationallyrecognized rating agency that requires access to information about a Lender’s investment portfolioin connection with ratings issued with respect to such Lender or (j) in connection with theexercise of any remedy hereunder or under any other Loan Document.
          10.15 Release of Collateral and Guarantee Obligations.
          (a) Notwithstanding anything to the contrary contained herein or in any other Loan Document,upon request of the Borrower in connection with any Disposition of Property permitted by the LoanDocuments, the Administrative Agent shall (without notice to, or vote or consent of, any Lender, orany affiliate of any Lender that is a party to any Specified Hedge Agreement) take such actions asshall be required to release its security interest in any Collateral being Disposed of in suchDisposition, and to release any guarantee obligations under any Loan Document of any Person beingDisposed of in such Disposition, to the extent necessary to permit consummation of such Dispositionin accordance with the Loan Documents.
          (b) Notwithstanding anything to the contrary contained herein or any other Loan Document, whenall Obligations (other than obligations in respect of any Specified Hedge Agreement) have been paidin full, all Commitments have terminated or expired and no Letter of Credit shall be

 


 

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outstanding,unless it has been cash-collateralized or backstopped on terms and conditions acceptable to theAdministrative Agent and the Issuing Lender in their sole discretion, upon request of the Borrower,the Administrative Agent shall (without notice to, or vote or consent of, any Lender, or anyaffiliate of any Lender that is a party to any Specified Hedge Agreement) take such actions asshall be required to release its security interest in all Collateral, and to release all guaranteeobligations under any Loan Document, whether or not on the date of such release there may beoutstanding Obligations in respect of Specified Hedge Agreements. Any such release of guaranteeobligations shall be deemed subject to the provision that such guarantee obligations shall bereinstated if after such release any portion of any payment in respect of the Obligationsguaranteed thereby shall be rescinded or must otherwise be restored or returned upon theinsolvency, bankruptcy, dissolution, liquidation or reorganization of the Borrower or anyGuarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of,or trustee or similar officer for, the Borrower or any Guarantor or any substantial part of itsproperty, or otherwise, all as though such payment had not been made.
          10.16 Accounting Changes. In the event that any “Accounting Change” (as definedbelow) shall occur and such change results in a change in the method of calculation of financialcovenants, standards or terms in this Agreement, then the Borrower and the Administrative Agentagree to enter into negotiations in order toamend such provisions of this Agreement so as to equitably reflect such Accounting Change withthe desired result that the criteria for evaluating the Borrower’s financial condition shall be thesame after such Accounting Change as if such Accounting Change had not been made. Until such timeas such an amendment shall have been executed and delivered by the Borrower, the AdministrativeAgent and the Required Lenders, all financial covenants, standards and terms in this Agreementshall continue to be calculated or construed as if such Accounting Change had not occurred.“Accounting Change” refers to any change in accounting principles required by the promulgation ofany rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of theAmerican Institute of Certified Public Accountants or, if applicable, the SEC.
          10.17 Delivery of Lender Addenda. Each initial Revolving Credit Lender became a partyto this Agreement by delivering to the Administrative Agent a Lender Addendum duly executed by suchLender, the Borrower and the Administrative Agent. Each initial Tranche D Term Loan Lender shallbecome a party to this Agreement by delivering to the Administrative Agent a Lender Addendum dulyexecuted by such Lender, the Borrower and the Administrative Agent. In delivering such LenderAddendum, each Tranche D Term Loan Lender acknowledges and agrees that such delivery shall alsoconstitute its consent to the amendment and restatement of the Existing Credit Agreement pursuantto the terms hereunder.
          10.18 WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENTS AND THE LENDERS HEREBYIRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TOTHIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
          10.19 USA Patriot Act Notice. Each Lender and the Administrative Agent (for itselfand not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements ofthe 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 theBorrower, which information includes the name and address of the Borrower and other informationthat will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower inaccordance with the Act. The Borrower shall, and shall cause each of its Subsidiaries to, provide,to the extent commercially reasonable, such information and take such actions as are reasonablyrequested by each Lender and the Administrative Agent to maintain compliance with the PatriotAct.

 


 

          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed anddelivered by their proper and duly authorized officers as of the day and year first above written.
         
    UNITED COMPONENTS, INC.
 
       
 
  By:    /s/ Authorized Person
 
       
 
        Name:
 
        Title:
 
       
    LEHMAN BROTHERS INC.,
as a Joint Lead Arranger
 
       
 
  By:    /s/ Authorized Person
 
       
 
        Name:
 
        Title:
 
       
    J.P. MORGAN SECURITIES INC.,
as a Joint Lead Arranger
 
       
 
  By:    /s/ Authorized Person
 
       
 
        Name:
 
        Title:
 
       
    JPMORGAN CHASE BANK, N.A.,
as Syndication Agent
 
       
 
  By:    /s/ Authorized Person
 
       
 
        Name:
 
        Title:
 
       
    ABN AMRO BANK N.V.,
as Co-Documentation Agent
 
       
 
  By:    /s/ Authorized Person
 
       
 
        Name:
 
        Title:
 
       
 
  By:    /s/ Authorized Person
 
       
 
        Name:
 
        Title:

 


 

         
    BANK OF AMERICA, N.A.,
as Co-Documentation Agent
 
       
 
  By:    /s/ Authorized Person
 
       
 
        Name:
 
        Title:
 
       
    GENERAL ELECTRIC CAPITAL CORPORATION,
as Co-Documentation Agent
 
       
 
  By:    /s/ Authorized Person
 
       
 
        Name:
 
        Title:
 
       
    LEHMAN COMMERCIAL PAPERINC.,
as Administrative Agent
 
       
 
  By:    /s/ Authorized Person
 
       
 
        Name:
 
        Title:

 


 

Annex A
PRICING GRID FOR REVOLVING CREDIT LOANS, SWING LINE LOANS
AND COMMITMENT FEES
             
    Applicable   Applicable    
    Margin   Margin    
    for Eurodollar   for Base   Commitment
Consolidated Leverage Ratio   Loans   Rate Loans   Fee Rate
 
³ 4.25:1.00   3.250%   2.250%   0.500%
³ 3.75:1.00 but < 4.25:1.00   3.000%   2.000%   0.500%
³ 3.25:1.00 but < 3.75:1.00   2.750%   1.750%   0.500%
³ 2.75:1.00 but < 3.25:1.00   2.500%   1.500%   0.375%
< 2.75:1.00   2.250%   1.250%   0.375%
          Changes in the Applicable Margin or in the Commitment Fee Rate resulting from changes in theConsolidated Leverage Ratio shall become effective on the date (the “Adjustment Date”) onwhich financial statements are delivered to the Lenders pursuant to Section 6.1 (but in any eventnot later than the date such financial statements are required to be delivered) and shall remain ineffect until the next change to be effected pursuant to this paragraph. If any financialstatements referred to above are not delivered within the time periods specified above, then, untilsuch financial statements are delivered, the Consolidated Leverage Ratio as at the end of thefiscal period that would have been covered thereby shall for the purposes of this definition bedeemed to be greater than 4.25 to 1.

 


 

SCHEDULE 1.1
MORTGAGED PROPERTY

 


 

SCHEDULE 4.4
CONSENTS, AUTHORIZATIONS, FILINGS AND NOTICES

 


 

SCHEDULE 4.15
SUBSIDIARIES

 


 

SCHEDULE 4.19(a)-1
UCC FILING JURISDICTIONS
     
Loan Party   Filing Office
     
          [Borrower to list name of each Loan Party which is a party to any Security Document and eachfiling office in which a UCC financing statement must be filed in respect of such Loan Party andits collateral]

 


 

SCHEDULE 4.19(a)-2
UCC FINANCING STATEMENTS TO REMAIN ON FILE

 


 

SCHEDULE 4.19(a)-3
UCC FINANCING STATEMENTS TO BE TERMINATED

 


 

SCHEDULE 4.19(b)
MORTGAGE FILING JURISDICTIONS

 


 

SCHEDULE 7.2(d)
EXISTING INDEBTEDNESS

 


 

SCHEDULE 7.3(f)
EXISTING LIENS