CREDIT AGREEMENT

Exhibit 10.4

 

Published CUSIP Number:             

CREDIT AGREEMENT

dated as of April 2, 2007

among

ADVANCED MEDICAL OPTICS, INC.,

as the Borrower,

CERTAIN OF ITS SUBSIDIARIES,

as the Guarantors,

UBS SECURITIES LLC,

as Syndication Agent,

GOLDMAN SACHS CREDIT PARTNERS L.P.,

as Documentation Agent,

BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender and L/C Issuer,

and

The Other Lenders Party Hereto

 

UBS SECURITIES LLC and BANC OF AMERICA SECURITIES LLC,

as Joint Lead Arrangers

and

UBS SECURITIES LLC, BANC OF AMERICA SECURITIES LLC

and GOLDMAN SACHS CREDIT PARTNERS L.P.,

as Joint Bookmanagers

 

 

TABLE OF CONTENTS

 

 

 

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CREDIT AGREEMENT

This CREDIT AGREEMENT (this “ Agreement ”) is entered into as of April 2, 2007, among ADVANCED MEDICAL OPTICS, INC., a Delaware corporation (the “ Borrower ”), the Guarantors (as defined herein) from time to time party hereto, each lender from time to time party hereto (collectively, the “ Lenders ” and individually, a “ Lender ”), UBS SECURITIES LLC, as syndication agent (in such capacity, the “ Syndication Agent ”), GOLDMAN SACHS CREDIT PARTNERS L.P., as documentation agent (in such capacity, the “ Documentation Agent ”), and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.

PRELIMINARY STATEMENTS

WHEREAS, the Borrower and Ironman Merger Corporation have entered into that certain Agreement and Plan of Merger, dated as of January 5, 2007 (as amended, supplemented or otherwise modified from time to time, the “ Merger Agreement ”), with IntraLase Corp. to acquire (the “ IntraLase Acquisition ”) IntraLase Corp. and its subsidiaries (taken as a whole, the “ IntraLase Acquired Business ”).

WHEREAS, the Borrower has requested the Lenders to extend credit in the form of (a) Term Loans on the Closing Date, in an aggregate principal amount not in excess of $450,000,000, and (b) Revolving Credit Loans at any time and from time to time prior to the Revolving Maturity Date, in an aggregate principal amount at any time outstanding not in excess of $300,000,000, of which no more than $250,000,000 may be drawn on the Closing Date.

WHEREAS, the Borrower has requested the Swing Line Lender to make Swing Line Loans, at any time and from time to time prior to the Revolving Maturity Date, in an aggregate principal amount at any time outstanding not in excess of $20,000,000.

WHEREAS, the Borrower has requested the L/C Issuer to issue letters of credit, in an aggregate face amount at any time outstanding not in excess of $35,000,000, to support payment obligations incurred in the ordinary course of business by the Borrower and its Subsidiaries.

WHEREAS, the proceeds of the Loans are to be used in accordance with Section 7.11 .

NOW, THEREFORE, the Lenders are willing to extend such credit to Borrower and the L/C Issuer is willing to issue letters of credit for the account of the Borrower on the terms and subject to the conditions set forth herein. Accordingly, the parties hereto agree as follows:

ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS

1.01 Defined Terms .

As used in this Agreement (including the preamble and the preliminary statements hereto), the following terms shall have the meanings set forth below:

“ 2004 Convertible Indenture ” means that certain Indenture dated as of June 22, 2004 between the Borrower and U.S. Bank National Association, as trustee, as such Indenture is in effect on the Closing Date and as the same may be amended, modified, restated or supplemented and in effect from time to time in accordance with the terms hereof and thereof.

“ 2004 Convertible Senior Subordinated Notes ” means those 2.50% Convertible Senior Subordinated Notes of the Borrower due 2024 issued pursuant to the 2004 Convertible Indenture, as in effect on the Closing Date and as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof.

“ 2004 Convertible Senior Subordinated Notes Documents ” means the 2004 Convertible Senior Subordinated Notes, the 2004 Convertible Indenture and all other documents executed and delivered in respect of the 2004 Convertible Senior Subordinated Notes and the 2004 Convertible Indenture, in each case as in effect on the Closing Date and as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof.

“ 2005 Convertible Indenture ” means that certain Indenture dated as of July 18, 2005 between the Borrower and U.S. Bank National Association, as trustee, as such Indenture is in effect on the Closing Date and as the same may be amended, modified, restated or supplemented and in effect from time to time in accordance with the terms hereof and thereof.

“ 2005 Convertible Senior Subordinated Notes ” means those 1.375% Convertible Senior Subordinated Notes of the Borrower due 2025 issued pursuant to the 2005 Convertible Indenture, as in effect on the Closing Date and as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof.

“ 2005 Convertible Senior Subordinated Notes Documents ” means the 2005 Convertible Senior Subordinated Notes, the 2005 Convertible Indenture and all other documents executed and delivered in respect of the 2005 Convertible Senior Subordinated Notes and the 2005 Convertible Indenture, in each case as in effect on the Closing Date and as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof.

“ 2006 Convertible Indenture ” means that certain Indenture dated as of June 13, 2006 between the Borrower and U.S. Bank National Association, as trustee, as such Indenture is in effect on the Closing Date and as the same may be amended, modified, restated or supplemented and in effect from time to time in accordance with the terms hereof and thereof.

“ 2006 Convertible Senior Subordinated Notes ” means those 3.25% Convertible Senior Subordinated Notes of the Borrower due 2026 issued pursuant to the 2006 Convertible Indenture, as in effect on the Closing Date and as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof.

“ 2006 Convertible Senior Subordinated Notes Documents ” means the 2006 Convertible Senior Subordinated Notes, the 2006 Convertible Indenture and all other documents executed and delivered in respect of the 2006 Convertible Senior Subordinated Notes and the 2006 Convertible Indenture, in each case as in effect on the Closing Date and as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof.

“ 2007 Indenture ” means that certain Indenture dated as of April 2, 2007 between the Borrower and Wilmington Trust Company, as trustee, as such Indenture may be amended, modified, restated or supplemented and in effect from time to time in accordance with the terms hereof and thereof.

“ 2007 Senior Subordinated Notes ” means those 7.5% Senior Subordinated Notes of the Borrower due 2017 issued pursuant to the 2007 Indenture, as in effect on the Closing Date and as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof.

 

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“ 2007 Senior Subordinated Notes Documents ” means the 2007 Senior Subordinated Notes, the 2007 Indenture and all other documents executed and delivered in respect of the 2007 Senior Subordinated Notes and the 2007 Indenture, as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof.

“ Acquisition ”, by any Person, means the acquisition by such Person, in a single transaction or in a series of related transactions, of all or any substantial portion of the Property of another Person or at least a majority of the Equity Interests of another Person, in each case whether or not involving a merger or consolidation with such other Person and whether for cash, property, services, assumption of Indebtedness, securities or otherwise.

“ Acquisition Consideration ” means the purchase consideration for any Investment pursuant to Section 8.02(i) and all other payments by the Borrower or any of its Subsidiaries in exchange for, or as part of, or in connection with, any such Investments, whether paid in cash or by exchange of Equity Interests or of properties or otherwise and whether payable at or prior to the consummation of such Investment or deferred for payment at any future time, whether or not any such future payment is subject to the occurrence of any contingency, and includes any and all payments representing the purchase price and any assumptions of Indebtedness, “earn-outs” and other agreements to make any payment the amount of which is, or the terms of payment of which are, in any respect subject to or contingent upon the revenues, income, cash flow or profits (or the like) of any person or business; provided that any such future payment that is subject to a contingency shall be considered Acquisition Consideration only to the extent of the reserve, if any, required under GAAP at the time of such sale to be established in respect thereof by the Borrower or any of its Subsidiaries.

“ Acquisition Documents ” means the Merger Agreement and related agreements, instruments and documents.

“ Act ” has the meaning specified in Section 11.21 .

“ Additional Basket Amount ” means (A) the amount of Qualified Equity Proceeds received by the Borrower after the Closing Date plus the amount of Unswept Excess Cash Flow minus (B) the amount of the sum in (A) of this definition that has been used pursuant to Section 8.02(i) , Section 8.02(j) and Section 8.16(a)(ii) .

“ Additional Subordinated Indebtedness ” means any Indebtedness of the Borrower issued subsequent to the Closing Date (i) which by its terms is expressly subordinated in right of payment to the prior payment of the Obligations under this Agreement and the other Loan Documents, (ii) which contains subordination provisions reasonably satisfactory to the Administrative Agent and (iii) the terms of which do not provide for any scheduled repayment, amortization payment, maturity date, mandatory redemption or sinking fund obligation prior to the date that is three months after the Final Maturity Date.

“ Administrative Agent ” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.

“ Administrative Agent’s Office ” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 11.02 , or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.

“ Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

 

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“ Affiliate ” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. “ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “ Controlling ” and “ Controlled ” have meanings correlative thereto. Without limiting the generality of the foregoing, a Person shall be deemed to be Controlled by another Person if such other Person possesses, directly or indirectly, power to vote 10% or more of the securities or other Equity Interests having, at the time of such determination, ordinary voting power for the election of directors, managing general partners or the equivalent. With respect to Affiliates of the Borrower, the term “Affiliate” shall specifically exclude the Administrative Agent and each Lender.

“ Agent Parties ” has the meaning specified in Section 11.02 .

“ Aggregate Commitments ” means the Commitments of all the Lenders.

“ Agreement ” has the meaning set forth in the preamble hereto, as the same may be further amended, amended and restated, supplemented or otherwise modified from time to time.

“ Anti-Terrorism Laws ” shall have the meaning assigned to such term in Section 6.23 .

“ Applicable Rate ” means a percentage per annum equal to, from time to time, the following percentages per annum, based upon the Consolidated Total Leverage Ratio as set forth below:

Applicable Rate

 

The Applicable Rate shall be determined by reference to the Consolidated Total Leverage Ratio in effect from time to time; provided , however , that (a) no change in the Applicable Rate shall be effective until the Business Day immediately following the date on which the Administrative Agent receives the financial statements required to be delivered pursuant to Section 7.01(a ) or ( b ), as the case may be, and a duly completed Compliance Certificate signed by a Responsible Officer of the Borrower in accordance with Section 7.02(b) demonstrating such Consolidated Total Leverage Ratio; (b) the Applicable Rate shall be at Pricing Level 1 (i) from the Closing Date to the date that is the Business Day immediately following the delivery to the Administrative Agent of the financial statements and certificates required by Section 7.01(b) for the fiscal period ended June 30, 2007, and (ii) for so long as the Borrower has not submitted to the Administrative Agent the information described in clause (a) of this proviso as and when required under Section 7.01(a) or (b) , as the case may be, and (c) if an Event of Default shall have occurred and be continuing at the time any reduction in the Applicable Rate would otherwise be implemented, no such reduction shall be implemented until the date on which such Event of Default shall cease to be continuing (and thereafter the Pricing Level otherwise determined in accordance with this definition shall apply). Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Rate for any period shall be subject to the provisions of Section 2.11(b) .

 

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“ Applicable Time ” means, with respect to any borrowings and payments in any Foreign Currency, the local time in the place of settlement for such Foreign Currency as may be determined by the Administrative Agent or the L/C Issuer, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.

“ Appropriate Lender ” means, at any time, with respect to (a) the Revolving Credit Facility, a Lender that has a Revolving Credit Commitment at such time, (b) the Letter of Credit Sublimit, (i) the L/C Issuer and (ii) if the other Revolving Credit Lenders have made L/C Advances pursuant to Section 2.03(c ) that are outstanding at such time, each such other Revolving Credit Lender and (c) the Term Loans, a Lender that has an outstanding Term Loan.

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

“ Arrangers ” means UBSS and BAS.

“ Assignee Group ” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.

“ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b) ) and accepted by the Administrative Agent, in substantially the form of Exhibit E or any other form approved by the Administrative Agent.

“ Attorney Costs ” means and includes all reasonable and documented fees, expenses and disbursements or other charges of any law firm or other external counsel.

“ Attributable Indebtedness ” means, on any date, (a) in respect of any capital lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease and (c) in respect of any Securitization Transaction of any Person, the outstanding principal amount of such financing, after taking into account reserve accounts and making appropriate adjustments, determined by such Person in its reasonable judgment.

“ Availability Period ” means the period from and including the Closing Date to the earliest of (a) the Business Day immediately preceding the Revolving Maturity Date, (b) the date of termination of the commitment of each Revolving Credit Lender to make Revolving Credit Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 2.03 , and (c) the date of termination of the commitment of each Revolving Credit Lender to make Revolving Credit Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 9.02 .

“ Bank of America ” means Bank of America, N.A. and its successors.

“ BAS ” means Banc of America Securities LLC and its successors.

“ Base Rate ” means for any day a fluctuating rate per annum equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America (or such other bank as may be the Administrative Agent at such time) as its “prime rate”. The “prime rate” is a rate set by Bank of America (or such other bank) based upon

 

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various factors including Bank of America’s (or such other bank’s) costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by Bank of America (or such other bank) shall take effect at the opening of business on the day specified in the public announcement of such change.

“ Base Rate Loan ” means a Loan that bears interest at a rate based on the Base Rate.

“ Bookmanagers ” means UBSS, BAS and GSCP.

“ Borrower ” has the meaning specified in the preamble to this Agreement.

“ Borrower Materials ” has the meaning specified in Section 7.02 .

“ Borrowing ” means a borrowing consisting of simultaneous Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Appropriate Lenders pursuant to Section 2.01 .

“ Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized or required to close under the Laws of, or are in fact closed in, either the state where the Administrative Agent’s Office with respect to Obligations denominated in Dollars or the office of the cash management bank of the Borrower is located and:

(a) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect of any such Eurocurrency Rate Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means any such day on which dealings in deposits in Dollars are conducted by and between banks in the London interbank Eurocurrency market;

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

(c) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Sterling, any fundings, disbursements, settlements and payments in Sterling in respect of any such Eurocurrency Rate Loan, or any other dealings in Sterling to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means any such day on which the relevant financial markets are open for dealings between banks in London;

(d) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in a currency other than Dollars, Euro or Sterling, means any such day on which dealings in deposits in the relevant currency are conducted by and between banks in the London or other applicable offshore interbank market for such currency; and

(e) if such day relates to any fundings, disbursements, settlements and payments in a currency other than Dollars, Euro or Sterling, in respect of a Eurocurrency Rate Loan denominated in a currency other than Dollars, Euro, or Sterling, or any other dealings in any currency other than Dollars, Euro or Sterling to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan (other than any interest rate settings), means any such day on which banks are open for foreign exchange business in the principal financial center of the country of such currency.

 

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“ Cash Collateral ” has the meaning specified in Section 2.03(g) .

“ Cash Collateralize ” has the meaning specified in Section 2.03(g) .

“ Cash Equivalents ” means any of the following, to the extent having a maturity of not greater than 12 months from the date of acquisition thereof: (a) readily marketable direct obligations of the Government of the United States or any agency or instrumentality thereof or obligations unconditionally guaranteed by the full faith and credit of the Government of the United States, (b) readily marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof, in each case having, at the time of the acquisition thereof, a rating of at least BBB+ by Moody’s and Baal by S&P, (c) insured certificates of deposit of or time deposits with any commercial bank that is a Lender or a member of the Federal Reserve System that issues (or the parent of which issues) commercial paper rated as described in clause (d) below, is organized under or subject to regulation under the laws of the United States or any State thereof and has combined capital and surplus of at least $1 billion, (d) commercial paper issued by any corporation organized under the laws of any State of the United States and rated, at the time of the acquisition thereof, at least “Prime-1” (or the then equivalent grade) by Moody’s or “A-1” (or the then equivalent grade) by S&P, (e) repurchase agreements with a term of not more than 30 days for underlying securities of the types described in clauses (a), (b) and (c) above entered into with any commercial bank meeting the requirements specified in clause (d) above or with any securities dealer of recognized national standing meeting the requirements specified in clause (d) above which is (i) is secured by a fully perfected security interest in any obligation of the type described in clause (a) above and (ii) has a market value at the time such repurchase agreement is entered into of not less than 100% of the repurchase obligation of such commercial bank or securities dealer thereunder, (f) diversified money market funds that invest solely in one or more of the types of investments referred to in clauses (a) through (e) above, and (g) in the case of any Foreign Subsidiary, high quality, short-term liquid Investments made by such Foreign Subsidiary in the ordinary course of managing its surplus cash position in investments of similar quality as those described in clauses (a) through (f) above.

“ CERCLA ” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. §§ 9601 et seq. ).

“ Change in Law ” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority.

“ Change of Control ” means, with respect to any Person, an event or series of events by which:

(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire (such right, an “ option right ”), whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of 25% or more of the equity securities of such Person

 

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entitled to vote for members of the board of directors or equivalent governing body of such Person on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or

(b) during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of such Person cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body (excluding, in the case of both clause (ii) and clause (iii), any individual whose initial nomination for, or assumption of office as, a member of that board or equivalent governing body occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the board of directors); or

(c) the occurrence of a “Fundamental Change” (or any comparable term) or “Change of Control” (or any comparable term) under, and as defined in, any Permitted Senior Unsecured Note Document, the 2004 Convertible Senior Subordinated Notes Documents, the 2005 Convertible Senior Subordinated Notes Documents, the 2006 Convertible Senior Subordinated Notes Documents, the 2007 Senior Subordinated Notes Documents or in the documentation evidencing any Additional Subordinated Indebtedness.

“ Closing Date ” means April 2, 2007.

“ Code ” means the Internal Revenue Code of 1986, as amended.

“ Collateral ” shall mean, collectively, all property pledged or granted as collateral pursuant to the Security Agreement and all other property of whatever kind and nature subject or purported to be subject from time to time to a Lien under any Collateral Document.

“ Collateral Documents ” means the Perfection Certificate and the Security Agreement (including, without limitation, each Foreign Subsidiary Pledge Supplement), the IP Security Agreement (including, without limitation, each IP Security Agreement Supplement), any Mortgage and any other agreement that creates or purports to create or perfects a Lien in favor of the Administrative Agent for the benefit of the Secured Parties.

“ Commitment ” means, (a) as to each Revolving Credit Lender, its obligation to (i) make Revolving Credit Loans to the Borrower pursuant to Section 2.01(a) , (ii) purchase participations in L/C Obligations, and (iii) purchase participations in Swing Line Loans in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement and (b) as to each Term Loan Lender, its obligation to make its portion of the Term Loans pursuant to Section 2.01(b) in the principal amount set forth opposite such Term Loan Lender’s name on Schedule 2.01 . The aggregate principal amount of the Commitments of the Revolving Credit Lenders on the Closing Date is $300,000,000. The aggregate principal amount of the Commitments of the Term Loan Lenders is $450,000,000.

 

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“ Commitment Fee ” has the meaning specified in Section 2.10(a) .

“ Commitment Letter ” means the Bank Facilities Commitment Letter dated January 5, 2007 among the Borrower, UBS Loan Finance LLC, UBSS, Bank of America, BAS and GSCP.

“ Compensation Period ” has the meaning specified in Section 2.13(c) .

“ Compliance Certificate ” means a certificate substantially in the form of Exhibit D or otherwise in a form reasonably satisfactory to the Administrative Agent.

“ Consolidated ” refers to the consolidation of accounts in accordance with GAAP.

“ Consolidated EBITDA ” means, for any period, for the Borrower and its Subsidiaries on a Consolidated basis, an amount equal to Consolidated Net Income for such period plus (a) the following to the extent deducted (and not added back) in calculating such Consolidated Net Income, without duplication: (i) Consolidated Interest Charges for such period, (ii) taxes based on income or profits or capital, including, without limitation, state, franchise and similar taxes and foreign withholding taxes paid or accrued during such period, (iii) depreciation and amortization expense, (iv) Transaction Costs paid during such period in an amount not to exceed $34,000,000, (v) expenses or charges (other than depreciation or amortization expense) related to any offering of Equity Interests, Investment, acquisition, Disposition, recapitalization or the incurrence of Indebtedness permitted hereunder (including a refinancing thereof) (whether or not successful), including any amendment or other modification of the 2007 Senior Subordinated Notes Documents and the Loan Documents, (vi) the amount of any non-recurring restructuring charge or reserve in such period, including costs related to the closure and/or consolidation of facilities, (vii) any other non-cash charges, including any write offs or write downs, for such period (provided that if any such non-cash charges represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period and the reversal of any accrual of, or cash reserve for, anticipated charges in any period where such accrual or reserve is no longer required), (viii) cash charges related to the IntraLase Acquisition (including the amount of severance payments made to departing employees) paid during such period so long as such cash charges are made within 12 months of the consummation of the IntraLase Acquisition and do not exceed $30,000,000 in the aggregate and (ix) cash charges of up to $25,000,000 for the fiscal quarter ended March 31, 2007 and up to $15,000,000 for the fiscal quarter ended June 30, 2007, in each case resulting from the Borrower’s voluntary recall of certain eye care product lots as a result of production-line issues at the Borrower’s manufacturing plant in China, and minus (b) all non-cash items increasing Consolidated Net Income for such period, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Consolidated Net Income in any prior period.

For purposes of this definition, “non-recurring” means that any gain, loss or charge as of any date is not reasonably likely to recur within the two years following such date in the good faith determination of (i) the Borrower’s board of directors or a duly authorized committee thereof for transactions in excess of $10,000,000, or (ii) the Borrower’s management for transactions up to $10,000,000.

Notwithstanding any provision to the contrary contained herein, for purposes of calculating the Debt Ratio Conditions and the financial covenants set forth in Section 8.11 , Consolidated EBITDA for the fiscal quarter ended December 31, 2006 shall be deemed to be $72,000,000.

“ Consolidated Interest Charges ” means, for any period, for the Borrower and its Subsidiaries on a Consolidated basis, the sum of (without duplication) (a) consolidated interest expense for the Borrower

 

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and its Subsidiaries for such period, to the extent such expense was deducted (and not added back) in calculating Consolidated Net Income (including (i) amortization of original issue discount resulting from the issuance of Indebtedness at less than par, (ii) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers acceptances, (iii) non-cash interest payments (but excluding any non-cash interest expense attributable to the movement in the mark to market valuation of Obligations under any Swap Contract pursuant to GAAP), (iv) the portion of rent expense of the Borrower and its Subsidiaries with respect to such period under capital leases that is treated as interest in accordance with GAAP, and (v) net payments, if any, pursuant to interest rate Swap Contracts with respect to Indebtedness), (b) imputed interest on Attributable Indebtedness, (c) the interest portion of any deferred payment obligations, and (d) consolidated capitalized interest for such period, whether paid or accrued.

“ Consolidated Interest Coverage Ratio ” means, as of any date of determination, the ratio of (a) Consolidated EBITDA for the period of the four fiscal quarters ending on such date to (b) Consolidated Interest Charges for such period.

“ Consolidated Net Income ” means, for any period, for the Borrower and its Subsidiaries on a Consolidated basis, the net income of the Borrower and its Subsidiaries (excluding extraordinary gains and extraordinary losses) for that period.

“ Consolidated Total Indebtedness ” means, as of any date of determination, for the Borrower and its Subsidiaries on a Consolidated basis, the sum of (a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (b) the outstanding principal amount of all purchase money Indebtedness, (c) all direct or contingent obligations arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments, (d) the outstanding amount of all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business), (e) Attributable Indebtedness in respect of capital leases and Synthetic Lease Obligations, (f) without duplication, all Contingent Obligations with respect to outstanding Indebtedness of the types specified in clauses (a) through (e) above of Persons other than the Borrower or any Subsidiary and (g) all Indebtedness of the types referred to in clauses (a) through (f) above of any partnership or joint venture (other than a joint venture that is itself a corporation, limited liability company or other form of entity that limits liability to its equity holders) in which the Borrower or a Subsidiary is a general partner or joint venturer, unless any such Indebtedness is expressly made non-recourse to the Borrower or such Subsidiary.

“ Consolidated Total Leverage Ratio ” means, as of any date of determination, the ratio of (a) Consolidated Total Indebtedness as of such date to (b) Consolidated EBITDA for the period of the four fiscal quarters most recently ended for which the Borrower is required to deliver financial statements pursuant to Section 7.01(a) or ( b ).

“ Consolidated Working Capital ” means, at any time, the excess of (i) Current Assets (excluding cash and Cash Equivalents) of the Borrower and its Subsidiaries on a Consolidated basis at such time over (ii) Current Liabilities of the Borrower and its Subsidiaries on a Consolidated basis at such time, all as determined in accordance with GAAP.

“ Contingent Obligation ” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “ primary obligor ”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay

 

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(or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.

“ Contractual Obligation ” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

“ Control ” has the meaning specified in the definition of “Affiliate.”

“ Credit Extension ” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.

“ Credit Facilities ” means the Revolving Credit Facility, the Swing Line Loans and the Term Loans.

“ Current Assets ” of any Person means all assets of such Person that would, in accordance with GAAP, be classified as current assets of a company conducting a business the same as or similar to that of such Person, after deducting adequate reserves in each case in which a reserve is proper in accordance with GAAP.

“ Current Liabilities ” of any Person means (a) all Indebtedness of such Person that by its terms is payable on demand or matures within one year after the date of determination (excluding any Indebtedness renewable or extendible, at the option of such Person, to a date more than one year from such date or arising under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date) and (b) all other items (including taxes accrued as estimated) that in accordance with GAAP would be classified as current liabilities of such Person.

“ Debt Ratio Conditions ” shall mean that, after giving effect to the incurrence of any Indebtedness under either Section 2.16 , Section 2.17 or Section 8.03(l) and the application of the proceeds therefrom, or in connection with any Investments permitted under Section 8.02(i) , (a) the Consolidated Total Leverage Ratio for the most recent four-fiscal quarter period of the Borrower shall be less than (i) 5.50 to 1.00 if such Indebtedness is incurred or such Investment is made on or prior to September 30, 2007, (ii) 5.25 to 1.00 if such Indebtedness is incurred or such Investment is made after September 30, 2007 but on or prior to December 31, 2007, (iii) 5.00 to 1.00 if such Indebtedness is incurred or such Investment is made after December 31, 2007 but on or prior to March 31, 2008, (iv) 4.75 to 1.00 if such Indebtedness is incurred or such Investment is made after March 31, 2008 but on or prior to June 30, 2008, (v) 4.50 to 1.00 if such Indebtedness is incurred or such Investment is made after June 30, 2008 but on or prior to

 

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September 30, 2008, (vi) 4.25 to 1.00 if such Indebtedness is incurred or such Investment is made after September 30, 2008 but on or prior to December 31, 2008, (vii) 4.00 to 1.00 if such Indebtedness is incurred or such Investment is made after December 31, 2008 but on or prior to December 31, 2009 and (viii) 3.50 to 1.00 if such Indebtedness is incurred or such Investment is made thereafter and (b) the Consolidated Interest Coverage Ratio for the most recent four-fiscal quarter period of the Borrower shall be greater than (i) 2.50 to 1.00 if such Indebtedness is incurred or such Investment is made on or prior to December 31, 2008 and (ii) 2.75 to 1.00 if such Indebtedness is incurred or such Investment is made thereafter.

“ Debtor Relief Laws ” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

“ Default ” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

“ Default Rate ” means an interest rate equal to (a) in the case of Eurocurrency Rate Loans, the sum of (i) the Eurocurrency Rate for such Loans, plus (ii) the Applicable Rate applicable to such Loans, plus (iii) the Mandatory Cost, if any, plus (iv) 2% per annum, and (b) for Base Rate Loans and for all other purposes, the sum of (i) the Base Rate then in effect plus (ii) the Applicable Rate applicable to Base Rate Loans plus (iii) 2% per annum.

“ Defaulting Lender ” means any Lender that (a) has failed to fund any portion of the Loans, participations in L/C Obligations or participations in Swing Line Loans required to be funded by it hereunder within one Business Day of the date required to be funded by it hereunder unless such failure has been cured, (b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute or unless such failure has been cured, or (c) has been deemed insolvent or become the subject of a proceeding under any Debtor Relief Laws.

“ Determination Date ” has the meaning specified in Section 2.15 .

“ Disposition ” or “ Dispose ” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.

“ Disqualified Capital Stock ” means any Equity Interest which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable (other than solely for Qualified Capital Stock), pursuant to a sinking fund obligation or otherwise, or is redeemable (other than solely for Qualified Capital Stock) at the option of the holder thereof, in whole or in part, on or prior to the date that is 91 days after the Final Maturity Date, (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any Equity Interests referred to in (a) above, in each case at any time on or prior to the date that is 91 days after the Final Maturity Date, or (c) contains any repurchase obligation which may come into effect prior to payment in full of all Obligations; provided , however , that any Equity Interests that would not constitute Disqualified Capital Stock but for provisions thereof giving holders thereof (or the holders of any security into or for which such Equity Interests is convertible, exchangeable or exercisable) the right to require the issuer thereof to redeem such Equity Interests upon the occurrence of a change in control or an asset sale occurring prior to the date that is 91 days after the Final Maturity Date

 

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shall not constitute Disqualified Capital Stock if such Equity Interests provide that the issuer thereof will not redeem any such Equity Interests pursuant to such provisions prior to the repayment in full of the Obligations.

“ Documentation Agent ” means GSCP.

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

“ Dollar Equivalent ” means, at any time, (a) as to any amount denominated in Dollars, the amount thereof at such time, and (b) as to any amount denominated in any Foreign Currency, the equivalent amount thereof in Dollars as determined by the Administrative Agent or the L/C Issuer, as the case may be, at such time on the basis of the Spot Rate for the purchase of Dollars with such Foreign Currency on the most recent Determination Date.

“ Domestic Subsidiary ” means any Subsidiary that is created or organized in the United States or under the Laws of the United States or any State therein.

“ Eligible Assignee ” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; or (d) any other Person (other than a natural person) approved by the Administrative Agent (and in the case of an assignment of a Revolving Credit Commitment, the L/C Issuer and the Swing Line Lender) and the Borrower (each such approval not to be unreasonably withheld or delayed); provided that notwithstanding the foregoing, (x) none of the foregoing approvals shall be required prior to the completion of the primary syndication of the Revolving Credit Commitments and Loans (as determined by the Bookmanagers) (it being understood and agreed that the Borrower shall be consulted prior to final allocations in the primary syndication), (y) no approval of the Borrower shall be required after the occurrence and during the continuance of an Event of Default of the type set forth in Section 9.01(a) , (f)  or (g)  and (z) “Eligible Assignee” shall not include the Borrower or any of its Affiliates or Subsidiaries or any natural person.

“ Embargoed Person ” shall have the meaning assigned to such term in Section 8.24 .

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

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

“ Environmental Action ” means any action, suit, demand, demand letter, claim, notice of non-compliance or violation, notice of liability or potential liability, investigation, proceeding, consent order or final and enforceable consent agreement under or pursuant to any Environmental Law or resulting from the release of Hazardous Materials.

“ Environmental Laws ” means any federal, state, local, and foreign statutes, laws, regulations, and final and enforceable ordinances, rules, judgments, orders, decrees or governmental restrictions governing pollution and the protection of the environment or the release of any Hazardous Materials into the environment.

“ Environmental Liability ” means any liability (including any liability for damages, costs of environmental remediation, fines or penalties), of the Borrower, any other Loan Party or any of their respective Subsidiaries resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials,

 

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(c) the release or threatened release of any Hazardous Materials into the environment or (d) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“ Equity Interests ” means, with respect to any Person, shares of capital stock of (or other ownership or profit interests in) such Person, warrants, options or other rights for the purchase or other acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

“ ERISA Affiliate ” means any trade or business (whether or not incorporated) under common control with any Loan Party within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

“ ERISA Event ” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Loan Party or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party or any ERISA Affiliate.

“ Euro ” means the lawful currency of the Participating Member States introduced in accordance with the EMU Legislation.

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

“ Eurocurrency Rate Loan ” means a Loan that bears interest at a rate based on the Eurocurrency Rate. Eurocurrency Rate Loans may be denominated in Dollars or a Foreign Currency. All Loans denominated in a Foreign Currency must be Eurocurrency Rate Loans.

 

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“ Event of Default ” has the meaning specified in Section 9.01 .

“ Excess Amount ” has the meaning specified in Section 2.06(f) .

“ Excess Cash Flow ” means, for any period for the Borrower and its Subsidiaries, an amount equal to the sum of (a) Consolidated EBITDA for such period minus (without duplication for all of the following clauses) (b) capital expenditures (net of any proceeds of (i) any related financings with respect to such expenditures and (ii) any sales of assets used to finance such expenditures) to the extent permitted under Section 8.12 for such period minus (c) the cash portion of Consolidated Interest Charges for such period minus (d) scheduled debt amortization payments made during such period minus (e) mandatory principal payments on Revolving Credit Loans if accompanied simultaneously by a dollar for dollar permanent reduction in the Revolving Credit Commitments during such period minus (f) any premium paid during such period in connection with the prepayment, redemption, purchase, defeasance or other satisfaction prior to the scheduled maturity of Indebtedness permitted to be prepaid, redeemed, purchased, defeased or satisfied hereunder minus (g) cash charges made during such period related to the conversion of the 2004 Convertible Senior Subordinated Notes, the 2005 Convertible Senior Subordinated Notes and the 2006 Convertible Senior Subordinated Notes minus (h) increases in Consolidated Working Capital for such period minus (i) taxes of the Borrower and its Subsidiaries that were paid in cash during such period minus (j) to the extent added to determine Consolidated EBITDA, all items that did not result from a cash payment to Borrower or any of its Subsidiaries on a Consolidated basis during such period plus (k) decreases in Consolidated Working Capital for such period, in each case on a consolidated basis determined in accordance with GAAP.

“ Excluded Subsidiary ” shall mean (a) any Subsidiary that is not a wholly-owned Subsidiary, (b) any Domestic Subsidiary that is a Subsidiary of a Foreign Subsidiary, (c) any Securitization Subsidiary and (d) any Immaterial Subsidiary (provided however that if such Immaterial Subsidiary is a Domestic Subsidiary and ceases to meet the definition for Immaterial Subsidiary at any time, then such Subsidiary shall no longer be an Excluded Subsidiary).

“ Executive Order ” shall have the meaning assigned to such term in Section 6.23 .

“ Existing Debt ” means Indebtedness of the Borrower and its Subsidiaries described on Schedule 8.03 hereto.

“ Existing Letters of Credit ” means those certain letters of credit in existence on the Closing Date and set forth on Schedule 1.01(a) hereto.

“ Extraordinary Receipt ” means any proceeds of insurance and condemnation awards (and payments in lieu thereof) received by or paid to or for the account of any Person not in the ordinary course of business.

“ Federal Funds Rate ” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America (or such other bank as may be the Administrative Agent at such time) on such day on such transactions as determined by the Administrative Agent.

 

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“ Fee Letter ” means the letter agreement dated January 5, 2007 among the Borrower, UBS Loan Finance LLC, UBSS, Bank of America, BAS and GSCP.

“ Final Maturity Date ” means the latest of the Revolving Maturity Date, the Term Loan Maturity Date and any Incremental Term Loan Maturity Date applicable to existing Incremental Term Loans, as of any date of determination.

“ Fiscal Year ” means a fiscal year of the Borrower and its Consolidated Subsidiaries ending on December 31 in any calendar year.

“ Foreign Currency ” means Euros, Japanese yen, Sterling, Canadian Dollars, Australian Dollars, Hong Kong Dollars, and other freely transferable currencies satisfactory to each of the Revolving Credit Lenders in their sole discretion.

“ Foreign Currency Equivalent ” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Foreign Currency as determined by the Administrative Agent at such time on the basis of the Spot Rate (determined in respect of the most recent Determination Date) for the purchase of such Foreign Currency with Dollars.

“ Foreign Currency Sublimit ” means, at any time, an amount equal to the lesser of (a) $75,000,000 and (b) the unused amount of the Aggregate Commitments under the Revolving Credit Facility at such time. The Foreign Currency Sublimit is part of, and not in addition to, the Revolving Credit Commitments.

“ Foreign Lender ” has the meaning specified in Section 11.14(a)(i) .

“ Foreign Subsidiary ” means any Subsidiary that is not a Domestic Subsidiary.

“ Foreign Subsidiary Pledge Supplement ” means each supplement to the Security Agreement in respect of the pledge of Equity Interests of a Foreign Subsidiary.

“ FRB ” means the Board of Governors of the Federal Reserve System of the United States.

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

“ GAAP ” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, that are applicable to the circumstances as of the date of determination, consistently applied.

“ Governmental Authority ” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

“ GSCP ” means Goldman Sachs Credit Partners L.P. and its successors.

 

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“ Guarantors ” means, collectively, the Domestic Subsidiaries of the Borrower party hereto on the Closing Date and each other Subsidiary of the Borrower that joins as a Guarantor pursuant to Section 7.12 .

“ Guarantee ” means the Guarantee made by the Guarantors pursuant to Article IV hereof.

“ Guaranteed Obligations ” has the meaning specified in Section 4.01 .

“ Hazardous Materials ” means all hazardous or toxic substances, wastes or pollutants (including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls and radon gas) regulated under any Environmental Law.

“ Honor Date ” has the meaning specified in Section 2.03(c)(i) .

“ Immaterial Subsidiary ” means any direct or indirect Subsidiary of the Borrower now existing or hereafter acquired or formed, and each successor thereto, which, either individually or in the aggregate with all other Immaterial Subsidiaries, accounts for less than 5% of (i) the Consolidated gross revenues of the Borrower and its Subsidiaries for the twelve month period ending as of the most recently completed fiscal quarter, (ii) Consolidated EBITDA for the twelve month period ending as of the most recently completed fiscal quarter, and (iii) the Consolidated assets of the Borrower and its Subsidiaries, in each case, as of the last day of the most recently completed fiscal quarter of the Borrower with respect to which, pursuant to clauses (a) or (b)  of Section 7.01 , financial statements have been, or are required to be, delivered by the Borrower.

“ Incremental Term Loan Effective Date ” has the meaning specified in Section 2.17(d) .

“ Incremental Term Loan Maturity Date ” has the meaning specified in Section 2.17(f)(ii) .

“ Incremental Term Loans ” has the meaning specified in Section 2.17(a) .

“ Indebtedness ” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

(a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

(b) all direct obligations or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;

(c) net obligations of such Person under any Swap Contract;

(d) the Attributable Indebtedness of Securitization Transactions;

(e) all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business and, except for those being contested in good faith, not past due for more than 60 days after the date on which each such trade payable or account payable was created);

(f) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;

 

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(g) capital leases and Synthetic Lease Obligations;

(h) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Disqualified Capital Stock; and

(i) all Contingent Obligations (including Guarantees) of such Person in respect of any of the foregoing.

For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation, limited liability company or other form of entity that limits liability to its equity holders) in which such Person is a general partner or a joint venturer, except to the extent such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any capital lease or Synthetic Lease Obligation or Securitization Transaction as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date.

“ Indemnitees ” has the meaning specified in Section 11.04(b) .

“ Information ” has the meaning specified in Section 11.07 .

“ Information Memorandum ” means the confidential information memorandum dated March 2007 containing information supplied by the Borrower and used by the Bookmanagers in connection with the syndication of the Commitments.

“ Intercompany Subordination Agreement ” means an agreement substantially in the form of Exhibit J or otherwise in a form reasonably satisfactory to the Administrative Agent.

“ Interest Payment Date ” means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Term Loan Maturity Date, Revolving Maturity Date or an Incremental Term Loan Maturity Date, as the case may be; provided , however , that if any Interest Period for a Eurocurrency Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the last Business Day of each March, June, September and December and the Term Loan Maturity Date, Revolving Maturity Date or an Incremental Term Loan Maturity Date, as the case may be.

“ Interest Period ” means, as to each Eurocurrency Rate Loan, the period commencing on the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and ending on the date one, two, three, six, or if available to all Appropriate Lenders, nine or twelve months thereafter, as selected by the Borrower in its Loan Notice; provided that:

(i) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

(ii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

 

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(iii) no Interest Period for any Loan shall extend beyond the Term Loan Maturity Date, Revolving Maturity Date or an Incremental Term Loan Maturity Date, as the case may be.

“ IntraLase Acquired Business ” has the meaning specified in the preliminary statements hereof.

“ IntraLase Acquisition ” has the meaning specified in the preliminary statements hereof.

“ IntraLase IP Transaction ” means (i) the Investments by AMO Holdings, Inc. in AMO Regional Holdings to allow AMO Regional Holdings to acquire non-exclusive rights to the intellectual property of IntraLase Corp. for the entire world, with the exception of North America and South America, in an amount not to exceed $90,000,000 and (ii) the sale by IntraLase Corp. of such rights to AMO Regional Holdings; in each case provided that (x) 100% of the amount of the Investments made by AMO Holdings Inc. in AMO Regional Holdings is used for the purchase of such intellectual property rights and 100% of such invested amount is, after the purchase of such intellectual property rights, held by either IntraLase Corp. or another Loan Party and (y) the foregoing transactions occur within 60 days after the Closing Date.

“ Investment ” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other securities of another Person, (b) a loan, advance or capital contribution to, Contingent Obligation with respect to or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor incurs debt of the type referred to in clause (h) of the definition of “Indebtedness” set forth in this Section 1.01 in respect of such Person, (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit or (d) any other investment in another Person. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.

“ IP Rights ” has the meaning set forth in Section 6.17 .

“ IP Security Agreement ” means the Intellectual Property Security Agreement made by each Loan Party to the Administrative Agent, dated as of the Closing Date, as amended, amended and restated, supplemented or otherwise modified from time to time.

“ IP Security Agreement Supplement ” means each supplement to the IP Security Agreement with respect to the intellectual property of the Loan Parties.

“ IRS ” means the United States Internal Revenue Service.

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

“ Issuer Documents ” means with respect to any Letter of Credit, the Letter of Credit Application and any other document or agreement and instrument entered into by the L/C Issuer and the Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to any such Letter of Credit.

 

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“ Joinder Agreement ” means a joinder agreement substantially in the form of Exhibit F executed and delivered by a Loan Party in accordance with the provisions of Section 7.12 .

“ Judgment Currency ” has the meaning specified in Section 11.18 .

“ Laws ” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

“ L/C Advance ” means, with respect to each Revolving Credit Lender, such Revolving Credit Lender’s funding of its participation in any L/C Borrowing in accordance with its Pro Rata Share. All L/C Advances shall be denominated in Dollars.

“ L/C Borrowing ” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when reimbursement is required under Section 2.03(c ) or refinanced as a Revolving Credit Borrowing. All L/C Borrowings shall be denominated in Dollars.

“ L/C Credit Extension ” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof.

“ L/C Issuer ” means (a) Bank of America or (b) any other Revolving Credit Lender from time to time designated by the Borrower as an L/C Issuer with the consent of such other Revolving Credit Lender and the Administrative Agent (such consent of the Administrative Agent not to be unreasonably withheld, conditioned or delayed), in each case in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder. In the event that there is more than one L/C Issuer at any time, references herein and in the other Loan Documents to the L/C Issuer shall be deemed to refer to the L/C Issuer in respect of the applicable Letter of Credit or to all L/C Issuers, as the context requires.

“ L/C Obligations ” means, as at any date of determination and without duplication, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.07 . For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

“ Lender ” has the meaning specified in the introductory paragraph hereto and, as the context requires, includes the L/C Issuer and the Swing Line Lender.

“ Lending Office ” means, as to any Lender, the office or offices or branch or branches of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices or branch or branches as a Lender may from time to time notify the Borrower and the Administrative Agent.

“ Letter of Credit ” means any letter of credit issued hereunder and shall include the Existing Letters of Credit. A Letter of Credit may be a commercial letter of credit or a standby letter of credit. Letters of Credit may be issued in Dollars or in a Foreign Currency.

 

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“ Letter of Credit Application ” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.

“ Letter of Credit Expiration Date ” means the day that is seven (7) days prior to the Revolving Maturity Date (or, if such day is not a Business Day, the next preceding Business Day).

“ Letter of Credit Fee ” has the meaning specified in Section 2.03(i) .

“ Letter of Credit Sublimit ” means, at any time, an amount equal to the lesser of (a) $35,000,000 and (b) the unused amount of the Aggregate Commitments under the Revolving Credit Facility at such time. The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Credit Facility.

“ Lien ” means any mortgage, pledge, hypothecation, assignment, encumbrance, lien (statutory or other), charge, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).

“ Loan ” means an extension of credit by a Lender to the Borrower under Article II in the form of a Revolving Credit Loan, a Term Loan or a Swing Line Loan.

“ Loan Documents ” means this Agreement, the Intercompany Subordination Agreement, the Notes, any amendment, supplement or modification hereof or thereof, the Collateral Documents, the Fee Letter, each Issuer Document, each Secured Swap Contract and each Secured Treasury Management Contract.

“ Loan Notice ” means a notice of (a) a Borrowing (other than a Swing Line Loan Borrowing), (b) a conversion of Loans from one Type to the other, or (c) a continuation of Eurocurrency Rate Loans, pursuant to Section 2.02 , which, if in writing, shall be substantially in the form of Exhibit A .

“ Loan Parties ” means, collectively, the Borrower and each Guarantor, and individually, any of the Loan Parties.

“ Mandatory Cost ” means, with respect to any period, the percentage rate per annum determined in accordance with Schedule 1.01(b) .

“ Material Adverse Change ” means any change, effect or circumstance occurring that (i) is materially adverse to the business, condition (financial or otherwise), operations, performance, properties or prospects of the IntraLase Acquired Business, or (ii) materially adversely affects the IntraLase Acquisition; provided , however , that in no event shall any of the following, either alone or in combination, be deemed to be “materially adverse”, nor shall any of the following be taken into account in determining whether a change, effect or circumstance is “materially adverse”: (A) any changes resulting from or arising out of general market, economic or political conditions (including any changes arising out of acts of terrorism, or war, weather conditions or other force majeure events), provided that such changes do not have a substantially disproportionate impact on the IntraLase Acquired Business, (B) any changes resulting from or arising out of general market, economic or political conditions in the industries in which the IntraLase Acquired Business conducts business (including any changes arising out of acts of terrorism, or war, weather conditions or other force majeure events), provided that such changes do not have a substantially disproportionate impact on the IntraLase Acquired Business, (C) any changes resulting from or arising out of actions taken pursuant to (and required by) the Merger Agreement or the failure to take any actions due to restrictions set forth in the Merger Agreement, (D) any changes in the

 

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price or trading volume of IntraLase Corp.’s stock, in and of itself, (E) any failure by the IntraLase Acquired Business to meet published revenue or earnings projections, in and of itself, (F) any changes or effects arising out of or resulting from any legal claims or other proceedings made by any of the stockholders of IntraLase Corp. or its subsidiaries arising out of or related to the Merger Agreement or the IntraLase Acquisition or (G) any changes arising out of or resulting from any delay with respect to the receipt by the IntraLase Acquired Business of pending regulatory approvals relating to its proposed product offerings of no longer than three months after the date that the IntraLase Acquired Business has informed the Borrower it expects to obtain such pending regulatory approvals (provided that at all times during such period, such approvals are still pending and can be reasonably expected to be obtained within such period).

“ Material Adverse Effect ” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (actual or contingent) or financial condition of the Borrower and its Subsidiaries, taken as a whole; (b) a material impairment of the rights and remedies of the Administrative Agent or any Lender under any Loan Document, or of the ability of any Loan Party to perform its obligations under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party.

“ Maximum Rate ” has the meaning specified in Section 11.09 .

“ Merger Agreement ” has the meaning specified in the preliminary statements hereof.

“ Moody’s ” means Moody’s Investors Service, Inc. and any successor thereto.

“ Mortgage ” means a mortgage, deed of trust or any other document, creating and evidencing a Lien on a Mortgaged Property, which shall be in a form reasonably satisfactory to the Administrative Agent.

“ Mortgaged Property ” means any Real Estate, if any, which shall be subject to a Mortgage delivered after the Closing Date pursuant to Section 7.12 .

“ Multiemployer Plan ” means any “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA) that is subject to Title IV of ERISA and to which any Loan Party or any ERISA Affiliate makes or is obligated to make contributions, or has made or been obligated to make contributions at any time, or under which any Loan Party or any ERISA Affiliate has or may have any liability or obligations.

“ Net Cash Proceeds ” means, with respect to any sale, lease, transfer or other disposition of any asset or the incurrence or issuance of any Indebtedness or the sale or issuance of any Equity Interests (including, without limitation, any capital contribution) by any Person, or any Extraordinary Receipt received by or paid to or for the account of any Person, the aggregate amount of cash received from time to time (whether as initial consideration or through payment or disposition of deferred consideration or as a refund) by or on behalf of such Person in connection with such transaction after deducting therefrom only (without duplication) (a) reasonable and customary brokerage commissions, underwriting fees and discounts, legal fees, finder’s fees and other similar fees and commissions, (b) the amount of taxes payable in connection with or as a result of such transaction and (c) the amount of any Indebtedness that, by the terms of the agreement or instrument governing such Indebtedness, is required to be repaid upon such disposition, in each case to the extent, but only to the extent, that the amounts so deducted are, at the time of receipt of such cash, actually paid or accrued for future payments within 90 days after consummation of such disposition to a Person that is not an Affiliate of such Person or any Loan Party or

 

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any Affiliate of any Loan Party and are properly attributable to such transaction or to the asset that is the subject thereof; provided , however , that in the case of amounts deducted but not actually paid or that are not then payable, if at the time such amounts are paid the amount so deducted exceeds the amount actually paid, then an amount equal to such excess shall constitute “Net Cash Proceeds” for all purposes hereunder.

“ Note ” or “ Notes ” means the Revolving Credit Notes and/or the Term Notes, individually or collectively, as appropriate.

“ Obligations ” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. Without limiting the generality of the foregoing, the Obligations of the Loan Parties under the Loan Documents include (a) the obligation to pay principal, interest, Letter of Credit commissions, charges, expenses, fees, attorneys’ fees and disbursements, indemnities and other amounts payable by any Loan Party under any Loan Document and (b) the obligation of any Loan Party to reimburse any amount in respect of any of the foregoing that any Lender, in its sole discretion, may elect to pay or advance on behalf of such Loan Party.

“ Organization Documents ” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

“ Other Taxes ” has the meaning specified in Section 3.01(b) .

“ Outstanding Amount ” means (a) with respect to Revolving Credit Loans, Swing Line Loans and the Term Loans on any date, the Dollar Equivalent amount of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Revolving Credit Loans, Swing Line Loans and the Term Loans, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the Dollar Equivalent amount of the aggregate outstanding amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements of outstanding unpaid drawings under any Letters of Credit or any reductions in the maximum amount available for drawing under Letters of Credit taking effect on such date.

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

 

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“ Participant ” has the meaning specified in Section 11.06(d) .

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

“ PBGC ” means the Pension Benefit Guaranty Corporation (or any successor).

“ Pension Plan ” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Section 412 of the Code or Section 302 or Title IV of ERISA and is sponsored or maintained by any Loan Party or any ERISA Affiliate or to which any Loan Party or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer plan described in Section 4064(a) of ERISA, has made or been obligated to make contributions at any time, or under which any Loan Party or any ERISA Affiliate has or may have any liability or obligations.

“ Perfection Certificate ” means a certificate in the form of Exhibit H or any other form approved by the Administrative Agent.

“ Permitted Securitization ” means a Securitization that complies with the following criteria: (i) the cash portion of the initial purchase price paid by the Securitization Subsidiary at closing for the Securitization Assets is at least 75% of the fair market value of the Securitization Assets at such time, (ii) the proceeds to any Loan Party, net of fees, commissions and expenses of the Securitization, from the sale of Securitization Assets are applied to repay Term Loans hereunder in accordance with Section 2.06(a) , (iii) the aggregate Investment by any Loan Party does not exceed $50,000,000, (iv) the face amount of Securitization Assets sold, conveyed or transferred in all Permitted Securitizations does not exceed $50,000,000 in the aggregate and (v) the Seller’s Retained Interest and all proceeds thereof shall constitute collateral hereunder and all necessary steps to perfect a security interest in such Seller’s Retained Interest in favor of the Administrative Agent are taken by the applicable Loan Parties.

“ Permitted Senior Unsecured Indebtedness ” means the senior unsecured Indebtedness of the Borrower (and senior unsecured guaranties thereof by any Guarantor) incurred under the Permitted Senior Unsecured Notes and the other Permitted Senior Unsecured Note Documents which satisfies the following requirements: (a) at least five (5) Business Days prior to the issuance thereof, the Borrower shall have delivered to the Administrative Agent the then current drafts of the Permitted Senior Unsecured Note Documents and with any changes thereto made after the initial delivery of such Permitted Senior Unsecured Note Documents to be delivered to the Administrative Agent prior to the incurrence of the related Permitted Senior Unsecured Notes, (b) the final maturity thereof is no earlier than six (6) months following the Final Maturity Date, (c) the respective Permitted Senior Unsecured Note Documents do not contain (i) any financial maintenance covenants (or defaults having the same effect as a financial maintenance covenant) or (ii) any cross-default provisions to the Credit Facilities (other than cross payment default provisions), (d) there are no scheduled amortization, mandatory redemption or sinking fund provisions or similar provisions prior to the maturity of the Permitted Senior Unsecured Notes and (e) the other terms and conditions of each incurrence of Permitted Senior Unsecured Notes shall be no more onerous or restrictive on the Borrower and its Subsidiaries, taken as a whole, than the terms and conditions contained in this Agreement.

“ Permitted Senior Unsecured Notes ” means senior unsecured notes of the Borrower (which may be guarantied by any Guarantor) issued pursuant to an effective registration statement under the Securities Act of 1933, as amended, or Rule 144A thereunder.

 

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“ Permitted Senior Unsecured Note Documents ” means all documentation (including, without limitation, any indenture or purchase agreement) entered into in connection with any issuance of Permitted Senior Unsecured Notes.

“ Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

“ Platform ” has the meaning specified in Section 7.02 .

“ Preferred Stock ” means, with respect to any Person, any and all preferred or preference Equity Interests (however designated) of such Person whether now outstanding or issued after the Closing Date.

“ Pro Forma Basis ” means, for purposes of calculating the Debt Ratio Conditions and the financial covenants set forth in Section 8.11 (including for purposes of determining the Applicable Rate), that any Disposition or Acquisition shall be deemed to have occurred as of the first day of the most recent four fiscal quarter period preceding the date of such transaction for which the Borrower has delivered financial statements pursuant to Section 7.01(a) or (b) . In connection with the foregoing, (a) with respect to any Disposition (i) income statement and cash flow statement items (whether positive or negative) attributable to the property disposed of shall be excluded to the extent relating to any period occurring prior to the date of such transaction and (ii) Indebtedness which is retired shall be excluded and deemed to have been retired as of the first day of the applicable period and (b) with respect to any Acquisition (i) income statement items (whether positive or negative) attributable to the Person or property acquired shall be included to the extent relating to any period applicable in such calculations to the extent (A) such items are not otherwise included in such income statement items for the Borrower and its Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in Section 1.01 and (B) such items are supported by audited financial statements or other information reasonably satisfactory to the Administrative Agent and (ii) any Indebtedness incurred or assumed by the Borrower or any Subsidiary (including the Person or property acquired) in connection with such transaction and any Indebtedness of the Person or property acquired which is not retired in connection with such transaction (A) shall be deemed to have been incurred as of the first day of the applicable period and (B) if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination.

“ Pro Rata Share ” means, (a) with respect to each Revolving Credit Lender at any time, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Revolving Credit Commitment of such Lender at such time and the denominator of which is the amount of the Revolving Credit Facility at such time; provided that if the commitment of each Revolving Credit Lender to make Revolving Credit Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 9.02 , then the Pro Rata Share of each Revolving Credit Lender shall be determined based on the Revolving Credit Outstandings of such Revolving Credit Lender and (b) with respect to each Term Loan Lender at any time, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the principal amount of the Term Loans held by such Term Loan Lender at such time and the denominator of which is the aggregate principal amount of the Term Loans at such time. The initial Pro Rata Share of each Revolving Credit Lender for the Revolving Credit Facility is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption or joinder agreement under Section 2.16(c) pursuant to which such Lender becomes a party hereto, as applicable. The initial Pro Rata Share of each Term Loan Lender is set forth opposite such Term Loan Lender on Schedule 2.01 or in the Assignment and Assumption or joinder agreement under Section 2.17(c) pursuant to which such Term Loan Lender becomes a party hereto, as applicable.

 

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“ Public Lender ” has the meaning specified in Section 7.02 .

“ Qualified Capital Stock ” of any Person means any Equity Interests of such Person that are not Disqualified Capital Stock.

“ Qualified Equity Proceeds ” means the Net Cash Proceeds actually received by the Borrower after the Closing Date from any sale or offering of, or capital contribution in respect of, Qualified Capital Stock of the Borrower.

“ Real Estate ” means, for any Person, all of the real property owned, leased, subleased or used by such Person.

“ Refinancing ” means the repayment in full and the termination of any commitment to make extensions of credit under all of the outstanding indebtedness listed on Schedule 1.01(c) of the Borrower or any of its Subsidiaries.

“ Register ” has the meaning set forth in Section 11.06(c) .

“ Related Parties ” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees and advisors of such Person and of such Person’s Affiliates.

“ Reportable Event ” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30-day notice period has been waived.

“ Request for Credit Extension ” means (a) with respect to a Borrowing, conversion or continuation of Loans (other than Swing Line Loans), a Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.

“ Required Lenders ” means, as of any date of determination, (a) Lenders holding in the aggregate more than 50% of the sum of the Revolving Credit Commitments and the outstanding Term Loans or (b) if the commitment of each Revolving Credit Lender to make Revolving Credit Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 9.02 or otherwise, Lenders holding in the aggregate more than 50% of the sum of the Revolving Credit Outstandings (with the aggregate amount of each Revolving Credit Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition) and the outstanding Term Loans; provided that the Commitment of, and the portion of the Revolving Credit Outstandings and the portion of the outstanding Term Loans held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.

“ Responsible Officer ” means the chief executive officer, president, chief financial officer, treasurer or assistant treasurer of a Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

“ Restricted Payment ” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of any Person or any of its Subsidiaries, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of

 

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any such Equity Interest, or on account of any return of capital to any Person’s stockholders, partners or members (or the equivalent of any thereof), or any option, warrant or other right to acquire any such Equity Interest.

“ Revolving Credit Borrowing ” means a borrowing consisting of simultaneous Revolving Credit Loans of the same Type made by the Revolving Credit Lenders.

“ Revolving Credit Commitment ” means, with respect to any Revolving Credit Lender at any time, the amount set forth opposite such Revolving Credit Lender’s name on Schedule 2.01 under the caption “Revolving Credit Commitment” or, if a Revolving Credit Lender has entered into one or more Assignment and Assumptions, has increased its Revolving Credit Commitment pursuant to Section 2.16 , or has entered into a joinder agreement pursuant to Section 2.16 , set forth for such Revolving Credit Lender in the Register maintained by the Administrative Agent pursuant to Section 11.06(c) as such Lender’s “Revolving Credit Commitment,” as such amount may be reduced at or prior to such time pursuant to Section 2.07 .

“ Revolving Credit Facility ” means, at any time, the aggregate amount of the Revolving Credit Lenders’ Revolving Credit Commitments at such time.

“ Revolving Credit Lender ” means any Lender that has a Revolving Credit Commitment.

“ Revolving Credit Loan ” has the meaning specified in Section 2.01(a) .

“ Revolving Credit Note ” means a promissory note of the Borrower payable to the order of any Revolving Credit Lender, in substantially the form of Exhibit B , evidencing the aggregate indebtedness of the Borrower to such Revolving Credit Lender resulting from the Revolving Credit Loans, L/C Advances and participations in Swing Line Loans made by such Lender, as amended, endorsed or otherwise modified from time to time.

“ Revolving Credit Outstandings ” means the aggregate Outstanding Amount of all Revolving Credit Loans, all Swing Line Loans and all L/C Obligations.

“ Revolving Maturity Date ” means April 2, 2013.

“ S&P ” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and any successor thereto.

“ Sale and Leaseback Transaction ” means, with respect to the Borrower or any Subsidiary, any arrangement, directly or indirectly, with any Person whereby the Borrower or such Subsidiary shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred.

“ Same Day Funds ” means (a) with respect to disbursements and payments in Dollars, immediately available funds, and (b) with respect to disbursements and payments in a Foreign Currency, same day or other funds as may be determined by the Administrative Agent or the L/C Issuer, as the case may be, to be customary in the place of disbursement or payment for the settlement of international banking transactions in the relevant Foreign Currency.

“ SEC ” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

 

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“ Secured Obligations ” has the meaning specified in Section 2 of the Security Agreement.

“ Secured Parties ” means, collectively, the Administrative Agent, the Lenders, the L/C Issuer, the Swap Banks, the Treasury Management Banks, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 10.05 and the other Persons the Obligations owing to which are or are purported to be secured by the Collateral.

“ Secured Swap Contract ” means any Swap Contract required or permitted under this Agreement that is entered into by and between the Borrower or any of its Subsidiaries and any Swap Bank.

“ Secured Treasury Management Contract ” means any Treasury Management Agreement required or permitted under this Agreement that is entered into by and between the Borrower or any of its Subsidiaries and any Treasury Management Bank.

“ Securitization ” means any transaction or series of transactions entered into by a Loan Party pursuant to which such Loan Party sells, conveys, assigns, grants an interest in or otherwise transfers to a Securitization Subsidiary, Securitization Assets (and/or grants or permits a security interest in such Securitization Assets transferred or purported to be transferred to such Securitization Subsidiary), and which Securitization Subsidiary finances the acquisition of such Securitization Assets (i) with cash, (ii) with the issuance to a Loan Party of Seller’s Retained Interests or an increase in such Seller’s Retained Interests, or (iii) with proceeds from the sale or collection of Securitization Assets.

“ Securitization Assets ” means any domestic accounts receivable owed to any Loan Party (whether now existing or arising or acquired in the future) arising in the ordinary course of business from the sale of goods or services, all collateral securing such accounts receivable, all contracts and contract rights and all guarantees or other obligations in respect of such accounts receivable, all proceeds of such accounts receivable and other assets (including contract rights) which are of the type customarily transferred or in respect of which security interests are customarily granted in connection with securitizations of accounts receivable and which are sold, transferred or otherwise conveyed by such Loan Party to a Securitization Subsidiary.

“ Securitization Subsidiary ” means a Person in which a Loan Party makes an Investment and to which a Loan Party sells, conveys, transfers or grants a security interest in Securitization Assets, which Person is formed for the limited purpose of effecting one or more Securitizations involving the Securitization Assets and related activities; provided that , (a) no portion of the Indebtedness or any related obligations (including with respect to principal, premium, interest, penalties, fees, indemnifications, reimbursements and all other amounts payable pursuant to the documentation of such Indebtedness) of the Securitization Subsidiary, contingent or otherwise (i) is guaranteed by the Borrower or any other Subsidiary (excluding the Standard Securitization Undertakings), (ii) is recourse to or obligates the Borrower or any other Subsidiary in any way other than pursuant to the Standard Securitization Undertakings or (iii) subjects any property or asset (including contract rights) of the Borrower or any other Subsidiary (other than Securitization Assets), directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to the Standard Securitization Undertakings and (b) the Borrower or any other Subsidiary has no obligation to maintain or preserve the Securitization Subsidiary’s financial condition or cause such Securitization Subsidiary to achieve certain levels of operating results. The Borrower shall provide written notice to the Administrative Agent of any designation of a Subsidiary as a Securitization Subsidiary by the board of directors of the Borrower, which notice shall be accompanied by a certified copy of the resolution of the board of directors of the Borrower giving effect to such designation and a certificate of a Responsible Officer of the Borrower certifying that such designation complied with the foregoing conditions.

 

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“ Securitization Transaction ” means any financing transaction or series of financing transactions (including factoring arrangements) pursuant to which the Borrower or any Subsidiary may sell, convey or otherwise transfer, or grant a security interest in, accounts, payments, receivables, rights to future lease payments or residuals or similar rights to payment to a special purpose subsidiary or affiliate of the Borrower.

“ Security Agreement ” means the Security Agreement made by each Loan Party to the Administrative Agent for the benefit of the Secured Parties, dated as of the Closing Date, as amended, amended and restated, supplemented or otherwise modified from time to time.

“ Seller’s Retained Interest ” means the debt or equity interests held by any Loan Party in a Securitization Subsidiary to which Securitization Assets have been transferred, including any such debt or equity received as consideration for or as a portion of the purchase price for the Securitization Assets transferred, or any other instrument through which any Loan Party has rights to or receives distributions in respect of any residual or excess interest in the Securitization Assets.

“ Solvent ” and “ Solvency ” mean, with respect to any Person on a particular date, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

“ Special Notice Currency ” means at any time a Foreign Currency, other than the currency of a country that is a member of the Organization for Economic Cooperation and Development at such time located in North America or Europe.

“ Spot Rate ” for a currency means the rate quoted by the Administrative Agent or the L/C Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent or the L/C Issuer may obtain such spot rate from another financial institution designated by the Administrative Agent or the L/C Issuer if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; and provided further that the L/C Issuer may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in a Foreign Currency.

“ Standard Securitization Undertakings ” means representations, warranties, covenants, repurchase obligations and indemnities entered into by a Loan Party which are customary for a seller or servicer of assets transferred in connection with a Permitted Securitization.

“ Sterling ” means the lawful currency of the United Kingdom.

“ Subsidiary ” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having

 

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ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower. Notwithstanding the foregoing, all references to a “Subsidiary” or “Subsidiaries” shall not include any Securitization Subsidiary.

“ Swap Bank ” means any Lender or an Affiliate of a Lender in its capacity as a party to a Secured Swap Contract and any Person that is a Lender or an Affiliate of a Lender at the time of execution of any Swap Contract.

“ Swap Contract ” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, interest rate hedging, foreign currency hedging, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “ Master Agreement ”), including any such obligations or liabilities under any Master Agreement.

“ Swap Termination Value ” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).

“ Swing Line Borrowing ” means a borrowing of a Swing Line Loan pursuant to Section 2.04(a) .

“ Swing Line Lender ” means Bank of America in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.

“ Swing Line Loan ” has the meaning specified in Section 2.04(a).

“ Swing Line Loan Notice ” means a notice of a Borrowing of Swing Line Loans pursuant to Section 2.04(b) , which, if in writing, shall be substantially in the form of Exhibit G .

“ Swing Line Sublimit ” means, at any time, an amount equal to the lesser of (a) $20,000,000 and (b) the unused amount of the Aggregate Commitments under the Revolving Credit Facility as such time. The Swing Line Sublimit is part of, and not in addition to, the Revolving Credit Commitments.

“ Syndication Agent ” means UBSS.

 

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“ Synthetic Lease Obligation ” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).

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

“ Taxes ” has the meaning specified in Section 3.01(a) .

“ Term Loan Lender ” means any Lender holding outstanding Term Loans or a Commitment in respect of Term Loans hereunder.

“ Term Loan Maturity Date ” means April 2, 2014.

“ Term Loans ” means the term loans made by the Lenders to the Borrower pursuant to Section 2.01(b) and Incremental Term Loans, if any. All Term Loans must be made in Dollars.

“ Term Note ” means a promissory note of the Borrower payable to the order of any Term Loan Lender, in substantially the form of Exhibit C , evidencing the aggregate indebtedness of the Borrower to such Lender resulting from the Term Loans, as amended, endorsed or otherwise modified from time to time.

“ Threshold Amount ” means $25,000,000.

“ Transaction Documents ” means the Acquisition Documents, the 2007 Senior Subordinated Notes Documents and the Loan Documents.

“ Transaction Costs ” means the fees, costs and expenses payable by the Borrower in connection with the transactions contemplated by the Transaction Documents.

“ Transactions ” means, collectively, the transactions to occur on or prior to the Closing Date pursuant to the Transaction Documents, including (a) the consummation of the IntraLase Acquisition; (b) the execution, delivery and performance of the Loan Documents and the initial borrowings hereunder; (c) the Refinancing; (d) the issuance of the 2007 Senior Subordinated Notes; and (e) the payment of all fees and expenses to be paid on or prior to the Closing Date and owing in connection with the foregoing.

“ Transferred Guarantor ” has the meaning set forth in Section 4.10 .

“ Treasury Management Agreement ” means any agreement to provide treasury or cash management services, including deposit accounts, overdraft, credit or debit card, funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation, reporting and trade finance services and other cash management arrangements.

“ Treasury Management Bank ” means any Person that, at the time it enters into a Treasury Management Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Treasury Management Agreement.

 

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“ Type ” means, with respect to a Loan, its character as a Base Rate Loan or a Eurocurrency Rate Loan.

“ UBSS ” means UBS Securities LLC and its successors.

“ UCC ” means the Uniform Commercial Code as in effect from time to time (except as otherwise specified) in any applicable state or jurisdiction.

“ Unfunded Pension Liability ” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code, as determined under the most recent actuarial valuation of such Pension Plan.

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

“ Unreimbursed Amount ” has the meaning set forth in Section 2.03(c)(i) .

“ Unswept Excess Cash Flow ” means, as at any date of determination, (a) the cumulative amount of Excess Cash Flow for all fiscal years completed after the Closing Date (commencing with the Fiscal Year ending December 31, 2007; provided , however , that solely with respect to the Fiscal Year ending December 31, 2007, Excess Cash Flow shall only be measured from the Closing Date to December 31, 2007) and prior to such date of determination minus (b) the portion of such Excess Cash Flow that has been after the Closing Date and on or prior to such date of determination (or will be) applied to the Term Loans pursuant to the mandatory prepayment provisions of Section 2.06(a) .

1.02 Other Interpretive Provisions .

With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

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

(b) Unless the context otherwise requires:

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

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

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

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

(v) The word “ will ” shall be construed to have the same meaning and effect as the word “ shall .”

 

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(vi) Any reference herein to any Person shall be construed to include such Person’s successors and assigns.

(vii) The words “ asset ” and “ property ” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

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

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

(e) Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.

1.03 Accounting Terms .

(a) All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the audited financial statements of the Borrower and its Subsidiaries immediately prior to the date of this Agreement referenced in Section 6.05(a) and heretofore delivered to the Administrative Agent, except as otherwise specifically prescribed herein.

(b) If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders (such approval not to be unreasonably withheld, delayed or conditioned)); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.

(c) Notwithstanding the above, the parties hereto acknowledge and agree that all calculations involving Consolidated EBITDA (other than Excess Cash Flow) and all calculations of the Debt Ratio Conditions and the financial covenants in Section 8.11 (including for purposes of determining the Applicable Rate) shall be made on a Pro Forma Basis.

1.04 Rounding .

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

 

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1.05 References to Agreements and Laws .

Unless otherwise expressly provided herein, (a) references to Organization Documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are not prohibited by any Loan Document; and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.

1.06 Times of Day .

Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

1.07 Letter of Credit Amounts .

Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of the stated amount of such Letter of Credit in effect at such time; provided , however , that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

1.08 Exchange Rates; Currency Equivalents .

(a) The Administrative Agent or the L/C Issuer, as applicable, shall determine the Spot Rates as of each Determination Date to be used for calculating Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts denominated in Foreign Currencies. Such Spot Rates shall become effective as of such Determination Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next Determination Date to occur. Except for purposes of financial statements delivered by Loan Parties hereunder or calculating financial covenants hereunder or except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by the Administrative Agent or the L/C Issuer, as applicable.

(b) Wherever in this Agreement in connection with a Borrowing, conversion, continuation or prepayment of a Eurocurrency Rate Loan or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Borrowing, Eurocurrency Rate Loan or Letter of Credit is denominated in a Foreign Currency, such amount shall be the relevant Foreign Currency Equivalent of such Dollar amount (rounded to the nearest unit of such Foreign Currency, with 0.5 of a unit being rounded upward), as determined by the Administrative Agent or the L/C Issuer, as the case may be.

1.09 Additional Foreign Currencies .

(a) The Borrower may from time to time request that Eurocurrency Rate Loans be made and/or Letters of Credit be issued in a currency other than those specifically listed in the definition of “Foreign Currency;” provided that such requested currency is a lawful currency (other than Dollars) that is readily available and freely transferable and convertible into Dollars. In the case of any such request with respect to the making of Eurocurrency Rate Loans, such request shall be subject to the approval of

 

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the Administrative Agent and the Revolving Credit Lenders; and in the case of any such request with respect to the issuance of Letters of Credit, such request shall be subject to the approval of the Administrative Agent and the L/C Issuer.

(b) Any such request shall be made to the Administrative Agent not later than 11:00 a.m., 20 Business Days prior to the date of the desired Credit Extension (or such other time or date as may be agreed by the Administrative Agent and, in the case of any such request pertaining to Letters of Credit, the L/C Issuer, in its or their sole discretion). In the case of any such request pertaining to Eurocurrency Rate Loans, the Administrative Agent shall promptly notify each Revolving Credit Lender thereof; and in the case of any such request pertaining to Letters of Credit, the Administrative Agent shall promptly notify the L/C Issuer thereof. Each Revolving Credit Lender (in the case of any such request pertaining to Eurocurrency Rate Loans) or the L/C Issuer (in the case of a request pertaining to Letters of Credit) shall notify the Administrative Agent, not later than 11:00 a.m., ten Business Days after receipt of such request whether it consents, in its sole discretion, to the making of Eurocurrency Rate Loans or the issuance of Letters of Credit, as the case may be, in such requested currency.

(c) Any failure by a Revolving Credit Lender or the L/C Issuer, as the case may be, to respond to such request within the time period specified in the preceding sentence shall be deemed to be a refusal by such Lender or the L/C Issuer, as the case may be, to permit Eurocurrency Rate Loans to be made or Letters of Credit to be issued in such requested currency. If the Administrative Agent and all the Revolving Credit Lenders consent to making Eurocurrency Rate Loans in such requested currency, the Administrative Agent shall so notify Borrower and such currency shall thereupon be deemed for all purposes to be a Foreign Currency hereunder for purposes of any Borrowings of Eurocurrency Rate Loans; and if the Administrative Agent and the L/C Issuer consent to the issuance of Letters of Credit in such requested currency, the Administrative Agent shall so notify the Borrower and such currency shall thereupon be deemed for all purposes to be a Foreign Currency hereunder for purposes of any Letter of Credit issuances. If the Administrative Agent shall fail to obtain consent to any request for an additional currency under this Section 1.09 , the Administrative Agent shall promptly so notify the Borrower. Any specified currency of an Existing Letter of Credit that is neither Dollars nor one of the Foreign Currencies specifically listed in the definition of “Foreign Currency” shall be deemed a Foreign Currency with respect to such Existing Letter of Credit only.

1.10 Change of Currency .

(a) Each obligation of the Borrower to make a payment denominated in the national currency unit of any member state of the European Union that adopts the Euro as its lawful currency after the date hereof shall be redenominated into Euro at the time of such adoption (in accordance with the EMU Legislation). If, in relation to the currency of any such member state, the basis of accrual of interest expressed in this Agreement in respect of that currency shall be inconsistent with any convention or practice in the London interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such convention or practice with effect from the date on which such member state adopts the Euro as its lawful currency; provided that if any Borrowing in the currency of such member state is outstanding immediately prior to such date, such replacement shall take effect, with respect to such Borrowing, at the end of the then current Interest Period.

(b) Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions or practices relating to the Euro.

 

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(c) Each provision of this Agreement also shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect a change in currency of any other country and any relevant market conventions or practices relating to the change in currency.

ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS

2.01 Loans .

(a) Subject to the terms and conditions set forth herein, each Revolving Credit Lender severally agrees to make loans (each such loan, a “ Revolving Credit Loan ”) to the Borrower in Dollars or in one or more Foreign Currencies from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Revolving Credit Lender’s Revolving Credit Commitment; provided , however , that after giving effect to any Revolving Credit Borrowing, (A) the Revolving Credit Outstandings shall not exceed the Revolving Credit Facility, (B) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender, plus such Revolving Credit Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Revolving Credit Lenders’ Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed such Revolving Credit Lender’s Revolving Credit Commitment, and (C) the Outstanding Amount of all Revolving Credit Loans that were made in a Foreign Currency shall not exceed the Foreign Currency Sublimit. Within the limits of each Revolving Credit Lender’s Revolving Credit Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01(a) , prepay under Section 2.05 , and reborrow under this Section 2.01(a) . Revolving Credit Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein. Notwithstanding anything to the contrary in this Section 2.01(a) , on the Closing Date, (i) the Borrower may not borrow more than $250,000,000 of Revolving Credit Loans and (ii) any Revolving Credit Loans must be borrowed in Dollars.

(b) Subject to the terms and conditions set forth herein, each Term Loan Lender severally agrees to make a single loan to the Borrower on the Closing Date in an amount not to exceed its Commitment in respect of Term Loans. Borrowings of Term Loans shall consist of Term Loans made simultaneously by the Term Loan Lenders in accordance with their respective Commitments in respect of Term Loans. Amounts repaid or prepaid on the Term Loans may not be reborrowed. The Term Loans may consist of Base Rate Loans or Eurocurrency Rate Loans, as further provided herein. Term Loans may only be made in Dollars.

2.02 Borrowings, Conversions and Continuations of Loans .

(a) Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of Eurocurrency Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice must be received by the Administrative Agent not later than 1:00 p.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurocurrency Rate Loans denominated in Dollars or of any conversion of Eurocurrency Rate Loans denominated in Dollars to Base Rate Loans, (ii) four Business Days (or five Business Days in the case of a Special Notice Currency) prior to the requested date of any Borrowing or continuation of Eurocurrency Rate Loans denominated in a Foreign Currency, and (iii) one Business Day prior to the requested date of any Borrowing of Base Rate Loans; provided , however , that if the Borrower wishes to request Eurocurrency Rate Loans having an Interest Period other than one, two, three or six months in duration, the applicable notice must be received by the

 

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Administrative Agent not later than 1:00 p.m. (i) four Business Days prior to the requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans denominated in Dollars, or (ii) five Business Days (or six Business days in the case of a Special Notice Currency) prior to the requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans denominated in a Foreign Currency, whereupon the Administrative Agent shall give prompt notice to the Appropriate Lenders of such request and determine whether the requested Interest Period is acceptable to all of them. Not later than 1:00 p.m., (i) three Business Days before the requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans denominated in Dollars, or (ii) four Business Days (or five Business days in the case of a Special Notice Currency) prior to the requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans denominated in a Foreign Currency, the Administrative Agent shall notify the Borrower (which notice may be by telephone) whether or not the requested Interest Period is available to all the Appropriate Lenders. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly (and in any event on the date of such telephonic notice) by delivery to the Administrative Agent of a written Loan Notice appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or continuation of Eurocurrency Rate Loans shall be in a principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof. Except as provided in Section 2.03(c) , each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower is requesting a Borrowing, a conversion of Loans from one Type to the other, or a continuation of Eurocurrency Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, (v) if applicable, the Foreign Currency in which such Loans are to be made, and (vi) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify a currency in a Loan Notice requesting a Borrowing, then the Loan so requested shall be made in Dollars. If the Borrower fails to specify a Type of Loan in a Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans; provided , however, that in the case of a failure to timely request a continuation of Loans denominated in a Foreign Currency, such Loans shall be continued as Eurocurrency Rate Loans in their original currency with an Interest Period of one month. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurocurrency Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any such Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. No Loan may be converted into or continued as a Loan denominated in a different currency, but instead must be prepaid in the original currency of such Loan and reborrowed in the other currency.

(b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each Appropriate Lender of the amount (and currency) of its Pro Rata Share of the applicable Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Appropriate Lender of the details of any automatic conversion to Base Rate Loans or continuation of Loans denominated in a currency other than Dollars, in each case, described in the preceding subsection (a). In the case of a Borrowing, each Appropriate Lender shall make the amount of its Loan available to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office for the applicable currency not later than 1:00 p.m., in the case of any Loan denominated in Dollars, and not later than the Applicable Time specified by the Administrative Agent in the case of any Loan in a Foreign Currency, in each case on the Business Day specified in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 5.02 (and if such Borrowing is the initial Credit Extension, Section 5.01 ), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of

 

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the Borrower on the books of Bank of America (or such other bank as may be the Administrative Agent at such time) with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to the Administrative Agent by the Borrower; provided , however , that if, on the date the Loan Notice with respect to such Borrowing is given by the Borrower, there are L/C Borrowings outstanding, then the proceeds of such Borrowing shall be applied, first , to the payment in full of any such L/C Borrowings, and second , to the Borrower, as provided above.

(c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurocurrency Rate Loan. During the existence of an Event of Default, (i) no Revolving Credit Loans may be converted to or continued as Eurocurrency Rate Loans (whether in Dollars or any Foreign Currency) if the Administrative Agent has, or (A) the Revolving Credit Lenders holding more than fifty percent (50%) of the Revolving Credit Commitments (other than Defaulting Lenders) or (B) if the commitment of each Revolving Credit Lender to make Revolving Credit Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 9.02 or otherwise, Lenders holding in the aggregate more than 50% of the Revolving Credit Outstandings (with the aggregate amount of each Revolving Credit Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes hereof) have, determined in its or their sole discretion not to permit such conversion or continuation, and such Lenders may demand that (1) any or all of the then outstanding Eurocurrency Rate Loans be converted immediately to Base Rate Loans and (2) any or all of the then outstanding Eurocurrency Rate Loans denominated in a Foreign Currency be prepaid, or redenominated into Dollars in the amount of the Dollar Equivalent thereof, in each case on the last day of the then current Interest Period with respect thereto and (ii) no Term Loans may be converted to or continued as Eurocurrency Rate Loans if the Administrative Agent has, or the Lenders (other than Defaulting Lenders) holding in the aggregate at least a majority of the outstanding Term Loans have, determined in its or their sole discretion not to permit such conversion or continuation, if any, and such Lenders may demand that any or all of the then outstanding Term Loans that are Eurocurrency Rate Loans be converted immediately to Base Rate Loans.

(d) The Administrative Agent shall promptly notify the Borrower and the Appropriate Lenders of the interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Appropriate Lenders of any change in the prime rate of Bank of America (or such other bank as may be the Administrative Agent at such time) used in determining the Base Rate promptly following the public announcement of such change.

(e) After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there shall not be more than ten (10) Interest Periods in effect with respect to the Revolving Credit Loans and ten (10) Interest Periods in effect with respect to the Term Loans.

(f) The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.

 

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2.03 Letters of Credit .

(a) The Letter of Credit Commitment .

(i) Subject to the terms and conditions set forth herein, the Existing Letters of Credit shall be continued as Letters of Credit governed by this Agreement and (A) the L/C Issuer agrees, in reliance upon the agreements of the other Revolving Credit Lenders set forth in this Section 2.03 , (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in one or more Foreign Currencies for the account of the Borrower, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Revolving Credit Outstandings shall not exceed the Revolving Credit Facility, (y) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender, plus such Revolving Credit Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Revolving Credit Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Credit Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.

(ii) The L/C Issuer shall not issue any Letter of Credit, if:

(A) subject to Section 2.03(b)(iii) , the expiry date of such requested Letter of Credit would occur more than 12 months after the date of issuance or last extension, unless the Revolving Credit Lenders holding in the aggregate more than 50% of the Revolving Credit Commitments have approved such expiry date (it being understood that no such approval shall be required for the issuance of any Letter of Credit that has an expiry date of 12 months or less from the date of issuance, but that includes provision for automatic renewal beyond such 12 month period); or

(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Credit Lenders have approved such expiry date.

(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:

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

 

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

(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is to be denominated in a currency other than Dollars or a Foreign Currency;

(D) the L/C Issuer does not as of the issuance date of such requested Letter of Credit issue Letters of Credit in the requested currency; or

(E) a default of any Revolving Credit Lender’s obligations to fund under Section 2.03(c) exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless the L/C Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the L/C Issuer’s risk with respect to such Revolving Credit Lender.

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

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

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

(b) Procedures for Issuance and Amendment of Letters of Credit .

(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower. Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent (A) not later than 1:00 p.m. at least three (3) Business Days prior to the proposed issuance date or date of amendment, as the case may be, of any Letter of Credit denominated in Dollars, and (B) not later than 1:00 p.m. at least ten (10) Business Days prior to the proposed issuance date or date of amendment, as the case may be, of any Letter of Credit denominated in a Foreign Currency (or in each case such later date and time as the Administrative Agent and the L/C Issuer may agree in a particular instance in their sole discretion). In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the

 

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requested Letter of Credit (which shall be a Business Day); (B) the amount and currency thereof and in the absence of specification of currency shall be deemed a request for a Letter of Credit denominated in Dollars; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the L/C Issuer may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the L/C Issuer may reasonably require. Additionally, the Borrower shall furnish to the L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may require.

(ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the L/C Issuer has received written notice from any Lender, the Administrative Agent or any Loan Party at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article V shall not be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Pro Rata Share times the amount of such Letter of Credit.

(iii) If the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “ Auto-Extension Letter of Credit ”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “ Non-Extension Notice Date ”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided , however , that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Revolving Credit Lenders holding in the aggregate more than 50% of the Revolving Credit Commitments have elected not to permit such extension or (2) from the Administrative Agent, any Lender or any Loan Party that one or more of the applicable conditions specified in Section 5.02 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.

 

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(iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.

(c) Drawings and Reimbursements; Funding of Participations .

(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower and the Administrative Agent thereof. In the case of a Letter of Credit denominated in a Foreign Currency, the Borrower shall reimburse the L/C Issuer in such Foreign Currency, unless (A) the L/C Issuer (at its option) shall have specified in such notice that it will require reimbursement in Dollars, or (B) in the absence of any such requirement for reimbursement in Dollars, the Borrower shall have notified the L/C Issuer promptly following receipt of the notice of drawing that the Borrower will reimburse the L/C Issuer in Dollars. In the case of any such reimbursement in Dollars of a drawing under a Letter of Credit denominated in a Foreign Currency, the L/C Issuer shall notify the Borrower of the Dollar Equivalent of the amount of the drawing promptly following the determination thereof. Not later than 1:00 p.m. on the date of any payment by the L/C Issuer under a Letter of Credit to be reimbursed in Dollars if the L/C Issuer delivers notice of such payment by 11:00 a.m. on such day (or, if notice of such payment by the L/C Issuer is made after 11:00 a.m., not later than 10:00 a.m. the next succeeding Business Day), or the Applicable Time on the date of any payment by the L/C Issuer under a Letter of Credit to be reimbursed in a Foreign Currency (each such date, an “ Honor Date ”), the Borrower shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing and in the applicable currency. If the Borrower fails to so reimburse the L/C Issuer by such time, the Administrative Agent shall promptly notify each Revolving Credit Lender of the Honor Date, the amount of the unreimbursed drawing (expressed in Dollars in the amount of the Dollar Equivalent thereof in the case of a Letter of Credit denominated in Foreign Currency) (the “ Unreimbursed Amount ”), and the Dollar Equivalent amount of such Lender’s Pro Rata Share thereof. In such event, the Borrower shall be deemed to have requested a Revolving Credit Borrowing in Dollars of Base Rate Loans to be disbursed on the Honor Date in a Dollar Equivalent amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Revolving Credit Facility and the conditions set forth in Section 5.02 (other than the delivery of a Loan Notice). Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

(ii) Each Revolving Credit Lender (including the Revolving Credit Lender acting as L/C Issuer) shall upon any notice pursuant to Section 2.03(c)(i) make funds available to the Administrative Agent for the account of the L/C Issuer, in Dollars, at the Administrative Agent’s Office for Dollar-denominated payments in an amount equal to its Pro Rata Share of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii) , each Revolving Credit Lender that so makes funds available shall be deemed to have made a Base Rate Loan in Dollars under the Revolving Credit Facility to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the L/C Issuer in Dollars.

 

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(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Credit Borrowing of Base Rate Loans because the conditions set forth in Section 5.02 cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Revolving Credit Lender’s payment to the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03 .

(iv) Until each Revolving Credit Lender funds its Revolving Credit Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Pro Rata Share of such amount shall be solely for the account of the L/C Issuer.

(v) Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c) , shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the L/C Issuer, the Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default; or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided , however , that each Revolving Credit Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 5.02 (other than delivery by the Borrower of a Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein.

(vi) If any Revolving Credit Lender fails to make available to the Administrative Agent for the account of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii) , the L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the L/C Issuer in connection with the foregoing. If such Revolving Credit Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Credit Lender’s Revolving Credit Loan included in the relevant Revolving Credit Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the L/C Issuer submitted to any Revolving Credit Lender (through the Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.

(d) Repayment of Participations .

(i) At any time after the L/C Issuer has made a payment under any Letter of Credit and has received from any Revolving Credit Lender such Revolving Credit Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c) , if the Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise,

 

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including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Revolving Credit Lender its Pro Rata Share thereof in Dollars and in the same funds as those received by the Administrative Agent.

(ii) If any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Revolving Credit Lender shall pay to the Administrative Agent for the account of the L/C Issuer its Pro Rata Share thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the applicable Overnight Rate from time to time in effect. The obligations of the Revolving Credit Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.

(e) Obligations Absolute . The obligation of the Borrower to reimburse the L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:

(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, any other agreement or instrument relating thereto or any other Loan Document;

(ii) the existence of any claim, counterclaim, setoff, defense or other right that the Borrower or any of its Subsidiaries may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;

(iii) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;

(iv) any payment by the L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law;

(v) any exchange, release or nonperfection of any collateral, or any release or amendment or waiver of or consent to departure from the Guarantee or any other guarantee, for all or any of the Obligations of the Borrower in respect of such Letter of Credit;

(vi) any adverse change in the relevant exchange rates or in the availability of the relevant Foreign Currency to the Borrower or any Subsidiary or in the relevant currency markets generally; or

 

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(vii) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower or any Subsidiary.

The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will immediately notify the L/C Issuer. The Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid.

(f) Role of L/C Issuer . Each Revolving Credit Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties, nor any correspondent, participant or assignee of the L/C Issuer shall be liable to any Revolving Credit Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided , however , that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer, shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.03(e) ; provided , however , that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.

(g) Cash Collateral . (i) Upon the request of the Administrative Agent, (A) if the L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or (B) if, as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the Borrower shall, in each case, immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations.

(ii) The Administrative Agent may, at any time and from time to time after the initial deposit of Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of exchange rate fluctuations.

(iii) Sections 2.06 and 9.02(c) set forth certain additional requirements to deliver Cash Collateral hereunder. For purposes of this Section 2.03 , Section 2.06 and Section 9.02(c) , “ Cash

 

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Collateralize ” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the L/C Issuer and the Revolving Credit Lenders, as collateral for the L/C Obligations, cash or deposit account balances (“ Cash Collateral ”) pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the L/C Issuer (which documents are hereby consented to by the Revolving Credit Lenders). Derivatives of such term have corresponding meanings. The Borrower hereby grants to the Administrative Agent, for the benefit of the L/C Issuer and the Revolving Credit Lenders, a security interest in all such cash, deposit accounts and all balances therein and all proceeds of the foregoing. Cash Collateral shall be maintained in blocked, interest bearing deposit accounts at Bank of America (or such other bank as may be the Administrative Agent at such time). If at any time the Administrative Agent determines that any funds held as Cash Collateral are subject to any right or claim of any Person other than the Administrative Agent or that the total amount of such funds is less than the aggregate Outstanding Amount of the L/C Obligations, the Borrower will, forthwith upon demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited and held in the deposit accounts at Bank of America (or such other bank as may be the Administrative Agent at such time) as aforesaid, an amount equal to the excess of (a) such aggregate Outstanding Amount over (b) the total amount of funds, if any, then held as Cash Collateral that the Administrative Agent determines to be free and clear of any such right and claim. Upon the drawing of any Letter of Credit for which funds are on deposit as Cash Collateral, such funds shall be applied, to the extent permitted under applicable law, to reimburse the L/C Issuer. So long as no Default has occurred and is continuing and no Obligations of the Borrower or any Loan Party that are due and payable remain unpaid, if any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be returned to the Borrower.

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

(i) Letter of Credit Fees . The Borrower shall pay to the Administrative Agent for the account of each Revolving Credit Lender in accordance with its Pro Rata Share, in Dollars, a Letter of Credit fee (the “ Letter of Credit Fee ”) for each Letter of Credit equal to the Applicable Rate for Revolving Credit Loans that are also Eurocurrency Rate Loans times the Dollar Equivalent of the daily maximum amount available to be drawn under such Letter of Credit (whether or not such maximum amount is then in effect under such Letter of Credit). For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.07 . Letter of Credit Fees shall be (i) due and payable on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii) computed on a quarterly basis in arrears. If there is any change in the Applicable Rate during any quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rate for Revolving Credit Loans that are also Eurocurrency Rate Loans separately for each period during such quarter that such Applicable Rate was in effect.

(j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer . The Borrower shall pay directly to the L/C Issuer for its own account, in Dollars, a fronting fee at the rate per annum specified in the Fee Letter, computed on the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears. Such fronting fee shall be due and payable on the last Business Day of each March, June, September and December in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with

 

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the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.07 . In addition, the Borrower shall pay directly to the L/C Issuer for its own account, in Dollars, the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.

(k) Conflict with Issuer Documents . In the event of any conflict between the terms hereof and the terms of any Issuer Documents, the terms hereof shall control.

2.04 Swing Line Loans .

(a) The Swing Line . Subject to the terms and conditions set forth herein, the Swing Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04 to make loans in Dollars (each such loan, a “ Swing Line Loan ”) to the Borrower from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Pro Rata Share of the Outstanding Amount of Loans (other than Swing Line Loans) and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Revolving Credit Commitment; provided , however , that after giving effect to any Swing Line Loan, (1) the Revolving Credit Outstandings shall not exceed the Revolving Credit Facility, and (2) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender, plus such Revolving Credit Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Revolving Credit Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed such Revolving Credit Lender’s Revolving Credit Commitment, and provided , further, that the Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.04 , prepay under Section 2.05 , and reborrow under this Section 2.04 . Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Lender’s Pro Rata Share times the amount of such Swing Line Loan.

(b) Borrowing Procedures . Each Swing Line Borrowing shall be made upon the Borrower’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent not later than 3:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of principal amount of $250,000 and integral multiples of $100,000 in excess thereof and (ii) the requested borrowing date, which shall be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Revolving Credit Lender) prior to 4:00 p.m.

 

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on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.04(a) , or (B) that one or more of the applicable conditions specified in Article V is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 5:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Borrower.

(c) Refinancing of Swing Line Loans .

(i) The Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each Revolving Credit Lender make a Revolving Credit Loan that is a Base Rate Loan in an amount equal to such Lender’s Pro Rata Share of the amount of Swing Line Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02 , without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving Credit Facility and the conditions set forth in Section 5.02 . The Swing Line Lender shall furnish the Borrower with a copy of the applicable Loan Notice promptly after delivering such notice to the Administrative Agent. Each Revolving Credit Lender shall make an amount equal to its Pro Rata Share of the amount specified in such Loan Notice available to the Administrative Agent in Same Day Funds for the account of the Swing Line Lender at the Administrative Agent’s Office for Dollar-denominated payments not later than 1:00 p.m. on the day specified in such Loan Notice, whereupon, subject to Section 2.04(c)(ii) , each Revolving Credit Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender.

(ii) If for any reason any Swing Line Loan cannot be refinanced by such a Borrowing in accordance with Section 2.04(c)(i) , the request for Base Rate Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Revolving Credit Lenders fund its risk participation in the relevant Swing Line Loan and each Revolving Credit Lender’s payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation.

(iii) If any Revolving Credit Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i) , the Swing Line Lender shall be entitled to recover from such Revolving Credit Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Swing Line Lender in connection with the foregoing. If such Revolving Credit Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Credit Lender’s Revolving Credit Loan included in the relevant Revolving Credit Borrowing or funded participation in the relevant Swing Line Loan, as the case may be. A certificate of the Swing Line Lender submitted to any Revolving Credit Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.

 

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(iv) Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Revolving Credit Lender may have against the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or Event of Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided however that each Revolving Credit Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 5.02 . No such purchase or funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans, together with interest as provided herein.

(d) Repayment of Participations .

(i) At any time after any Revolving Credit Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Revolving Credit Lender its Pro Rata Share of such payment in the same funds as those received by the Swing Line Lender.

(B) If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Revolving Credit Lender shall pay to the Swing Line Lender its Pro Rata Share thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the applicable Overnight Rate. The Administrative Agent will make such demand upon the request of the Swing Line Lender. The obligations of the Revolving Credit Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.

(viii) Interest for Account of Swing Line Lender . The Swing Line Lender shall be responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each Revolving Credit Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to refinance such Lender’s Pro Rata Share of any Swing Line Loan, interest in respect of such Pro Rata Share shall be solely for the account of the Swing Line Lender.

(ix) Payments Directly to Swing Line Lender . The Borrower shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.

2.05 Voluntary Prepayments .

(a) Subject to the last sentence of this paragraph, the Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Loans in whole or in part without premium or penalty; provided that (a) such notice must be received by the Administrative Agent not later than 1:00 p.m. (i) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (ii) four Business Days (or five, in the case of prepayment of Loans

 

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denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Loans denominated in Foreign Currencies, and (iii) one Business Day prior to any date of prepayment of Base Rate Loans; (b) any prepayment of Eurocurrency Rate Loans (whether denominated in Dollars or a Foreign Currency) shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof; and (c) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans and the manner in which the prepayment should be applied by the Administrative Agent (it being understood that prepayments pursuant to this Section 2.05(a) may be applied as directed by the Borrower; provided however that the Borrower may not specify that any Lender receives more or less than its Pro Rata Share of any such prepayment). The Administrative Agent will promptly notify each Appropriate Lender of its receipt of each such notice, and of the amount of such Lender’s Pro Rata Share of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Loan shall be accompanied by all accrued interest thereon, together with, in the case of a Eurocurrency Rate Loan, any additional amounts required pursuant to Section 3.05 . Each such prepayment shall be applied to the Loans of the Appropriate Lenders in accordance with their respective Pro Rata Shares. Notwithstanding anything to the contrary contained herein, the Borrower shall not be permitted to prepay the Term Loans in whole or in part pursuant to this Section 2.05(a) during the period from the Closing Date through the date ten Business Days thereafter.

(b) The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (A) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (B) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.

2.06 Mandatory Prepayments .

(a) The Borrower shall promptly (and in any event within five (5) Business Days) after receipt of the Net Cash Proceeds by the Borrower or any of its Subsidiaries from (i) the Disposition of any assets of the Borrower or any of its Subsidiaries (other than any Disposition of assets pursuant to clause (a), (b), (c), (d), (e), (g), (h) or (k) of Section 8.05 ) for an aggregate amount of $40,000,000 or more after the Closing Date (provided however that the Net Cash Proceeds of any Dispositions of assets pursuant to Section 8.05(f) shall not be considered for purposes of the $40,000,000 threshold and an amount equal to such Net Cash Proceeds shall be promptly and in any event within five (5) Business Days after receipt thereof used to prepay the Term Loans in the manner set forth below), (ii) the incurrence or issuance by the Borrower or any of its Subsidiaries of any Indebtedness or Preferred Stock (other than Indebtedness or Preferred Stock incurred or issued pursuant to clause (a), (b), (c), (d)(i), (e), (f), (g), (i), (j), (k), (l), (m), (n), (o), (p) or (q) of Section 8.03 ), and (iii) any Extraordinary Receipt received by or paid to or for the account of the Borrower or any of its Subsidiaries in an aggregate amount of $30,000,000 or more in any Fiscal Year and not otherwise included in clause (i) or (ii) above, prepay an aggregate principal amount of the Term Loans in an amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied to the Term Loans (applied first to the principal amortization payments due on the repayment dates set forth in Section 2.08(b) occurring within the 12 months following such prepayment in direct order of maturity and second ratably to the remaining principal amortization payments scheduled for the other repayment dates set forth in Section 2.08(b) ).

 

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With respect to any Net Cash Proceeds (I) realized under a Disposition described in clause (i) above (other than Net Cash Proceeds realized in connection with the Disposition of assets pursuant to Section 8.05(f) , which shall not be subject to the reinvestment rights set forth in this sentence) or (II) described in clause (iii) above, at the option of the Borrower (as elected by the Borrower in writing to the Administrative Agent no later than five (5) Business Days after the receipt of any related Net Cash Proceeds), and so long as no Default or Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Net Cash Proceeds in assets useful in the business of the Borrower and its Subsidiaries so long as within 365 days after the receipt of such Net Cash Proceeds, such reinvestment shall have been consummated (with any such reinvestments being subject to the terms of this Agreement); provided further , however , that any Net Cash Proceeds not so reinvested after such 365-day period shall be immediately applied to the prepayment of the Loans as set forth above. Furthermore, in the case of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2007; provided , however that solely with respect to the Fiscal Year ending December 31, 2007, Excess Cash Flow shall only be measured from the Closing Date to December 31, 2007), not later than five Business Days after the date on which the financial statements referred to in Section 7.01(a) for such Fiscal Year are required to be delivered to the Administrative Agent, the Borrower shall prepay the Term Loans (applied first to the principal amortization payments due on the repayment dates set forth in Section 2.08(b) occurring within the 12 months following such prepayment in direct order of maturity and second ratably to the remaining principal amortization payments scheduled for the other repayment dates set forth in Section 2.08(b) ) in an amount equal to (x) 50% of Excess Cash Flow for such Fiscal Year minus (y) the aggregate principal amount of Term Loans voluntarily prepaid pursuant to Section 2.05 and Revolving Credit Loans voluntarily prepaid pursuant to Section 2.05 (to the extent accompanied by a reduction of the Revolving Credit Commitments in an equal amount pursuant to Section 2.07 ), in each case during such Fiscal Year (excluding the aggregate principal amount of any such voluntary prepayments made with the proceeds of any financings with respect to such prepayments); provided that (A) the percentage referred to above in this sentence shall be reduced to 25% if the Consolidated Total Leverage Ratio as of the end of such Fiscal Year is no greater than 3.50 to 1.00 but greater than 2.50 to 1.0 and (B) no prepayment using any percentage of Excess Cash Flow shall be required pursuant to this sentence if the Consolidated Total Leverage Ratio as of the end of such Fiscal Year is no greater than 2.50 to 1.00.

(b) If for any reason the Revolving Credit Outstandings at any time exceed the Revolving Credit Facility then in effect, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess; provided , however , that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Revolving Credit Loans, the Swing Line Loans and the L/C Borrowings the Revolving Credit Outstandings exceed the Revolving Credit Facility then in effect.

(c) The Borrower shall, on each Business Day, Cash Collateralize the L/C Obligations in an amount (if any) equal to the amount by which th