-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, UEkWSrXku04cHpRxd4KNAWvWCLmqQgQ5oi1o3DE2Hji8g42w9sMC3B0W7h3DIYDw iGSTO5rvg+udLMYWZZIo5Q== 0000912057-97-027935.txt : 19970815 0000912057-97-027935.hdr.sgml : 19970815 ACCESSION NUMBER: 0000912057-97-027935 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 15 CONFORMED PERIOD OF REPORT: 19970630 FILED AS OF DATE: 19970814 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMPHENOL CORP /DE/ CENTRAL INDEX KEY: 0000820313 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRONIC CONNECTORS [3678] IRS NUMBER: 222785165 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 001-10879 FILM NUMBER: 97661880 BUSINESS ADDRESS: STREET 1: 358 HALL AVE CITY: WALLINGFORD STATE: CT ZIP: 06492 BUSINESS PHONE: 2032658900 10-Q 1 FORM 10-Q SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-Q [ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended June 30, 1997 or [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from ________________to _________________ Commission File Number 1-10879 AMPHENOL CORPORATION (Exact name of Registrant as specified in its Charter) Delaware 22-2785165 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 358 Hall Avenue, Wallingford, Connecticut 06492 203-265-8900 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) Indicate by check mark whether the Registrant (1) has filed reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No ___ ___ As of July 1, 1997, the total number of shares outstanding of Class A Common Stock was 17,516,955. AMPHENOL CORPORATION Index to Quarterly Report on Form 10-Q Page ____ Part I Financial Information Item 1. Financial Statements: Condensed Consolidated Balance Sheet June 30, 1997 and December 31, 1996 3 Condensed Consolidated Statement of Income Three and six months ended June 30, 1997 and 1996 5 Condensed Consolidated Statement of Cash Flow Six months ended June 30, 1997 and 1996 6 Notes to Condensed Consolidated Financial Statements 7 Item 2. Management's Discussion and Analysis of Results of Operations and Financial Condition 10 Part II Other Information Item 1. Legal Proceedings 13 Item 2. Changes in Securities 13 Item 3. Defaults upon Senior Securities 14 Item 4. Submission of Matters to a Vote of Security-Holders 14 Item 5. Other Information 14 Item 6. Exhibits and Reports on Form 8-K 14 Signatures 18 Part I. Financial Information Item 1. Financial Statements AMPHENOL CORPORATION CONDENSED CONSOLIDATED BALANCE SHEET (dollars in thousands) June 30, December 31, 1997 1996 ------------ ------------ (Unaudited) A S S E T S Current Assets: Cash and short-term cash investments......... $ 10,065 $ 3,984 Accounts receivable, less allowance for doubtful accounts of $2,014 and $1,868, respectively................... 82,709 64,904 Inventories.................................. 163,507 153,283 Prepaid expenses and other assets............ 13,418 11,611 -------- -------- Total current assets........................... 269,699 233,782 -------- -------- Land and depreciable assets, less accumulated depreciation of $164,124 and $163,110, respectively.......... 101,683 102,075 Deferred debt issuance costs................... 38,675 3,717 Excess of cost over fair value of net assets acquired.............................. 344,892 346,583 Other assets................................... 9,942 24,505 -------- -------- $764,891 $710,662 ________ ________ See accompanying notes to condensed consolidated financial statements. AMPHENOL CORPORATION CONDENSED CONSOLIDATED BALANCE SHEET (dollars in thousands) June 30, December 31, 1997 1996 ----------- ------------ (Unaudited) LIABILITIES AND SHAREHOLDERS' EQUITY Current Liabilities: Accounts payable.............................. $ 63,011 $ 49,484 Accrued interest.............................. 8,790 2,481 Other accrued expenses........................ 52,875 37,194 Current portion of long-term debt............. 276 7,759 -------- -------- Total current liabilities....................... 124,952 96,918 -------- -------- Long-term debt.................................. 961,532 219,484 Accrued pension and post employment benefit obligations........................... 10,318 15,016 Deferred taxes and other liabilities............ 21,150 18,696 Shareholders' Equity: Common stock.................................. 20 47 Additional paid-in capital.................... (511,668) 265,425 Accumulated earnings.......................... 172,060 151,634 Cumulative valuation adjustments.............. (13,473) (3,887) Treasury stock, at cost....................... - (52,671) -------- -------- Total shareholders' equity...................... (353,061) 360,548 -------- -------- $764,891 $710,662 ________ ________ See accompanying notes to condensed consolidated financial statements. AMPHENOL CORPORATION CONDENSED CONSOLIDATED STATEMENT OF INCOME (Unaudited) (dollars in thousands, except per share data)
Three months ended Six months ended June 30, June 30, --------------------- --------------------- 1997 1996 1997 1996 -------- -------- -------- -------- Net sales....................................... $226,996 $198,921 $438,769 $393,743 Costs and expenses: Cost of sales, excluding depreciation and amortization............................. 146,463 126,878 283,985 250,806 Depreciation and amortization expense......... 5,055 4,431 9,920 8,905 Selling, general and administrative expense... 31,973 29,553 62,440 58,252 Amortization of goodwill...................... 2,829 2,712 5,659 5,424 -------- -------- -------- -------- Operating income................................ 40,676 35,347 76,765 70,356 Interest expense................................ (14,249) (6,091) (20,671) (12,143) Expenses relating to Merger and Recapitalization (Note 4)................. (2,500) - (2,500) - Other income (expense), net..................... 2,901 (903) 1,684 (1,627) -------- -------- -------- -------- Income before income taxes and extraordinary item........................ 26,828 28,353 55,278 56,586 Provision for income taxes...................... 11,054 10,945 22,007 22,238 -------- -------- -------- -------- Net income before extraordinary item............................ 15,774 17,408 33,271 34,348 Extraordinary item: Loss on early extinguishment of debt, net of income taxes (Note 4)............................... (12,845) - (12,845) - -------- -------- -------- -------- Net income...................................... $ 2,929 $ 17,408 $ 20,426 $ 34,348 ________ ________ ________ ________ Net income per share: Income before extraordinary item............... $.50 $.37 $.87 $.73 Extraordinary charge........................... (.41) - (.34) - ---- ---- ---- ---- Net income..................................... $.09 $.37 $.53 $.73 ____ ____ ____ ____ Average common and common equivalent shares outstanding................. 31,866,577 47,328,447 38,257,794 47,324,492 __________ __________ __________ __________
See accompanying notes to condensed consolidated financial statements. AMPHENOL CORPORATION CONDENSED CONSOLIDATED STATEMENT OF CASH FLOW (Unaudited) (dollars in thousands) Six Months Ended June 30, --------------------- 1997 1996 -------- -------- Net income....................................... $ 20,426 $ 34,348 Adjustments for cash from operations: Depreciation and amortization.................. 15,579 14,329 Amortization of deferred debt issuance costs... 798 346 Net loss on early extinguishment of debt....... 12,845 - Expenses relating to the Merger and Recapitalization 2,500 - Gain on sale of marketable securities.......... (3,917) - Net change in non-cash components of working capital............................... 2,022 (31,497) -------- -------- Cash provided from operations.................... 50,253 17,526 -------- -------- Cash flow from investing activities: Capital additions, net......................... (10,246) (10,636) Proceeds from the sale of marketable securities 7,351 - -------- -------- Cash flow used by investing activities........... (2,895) (10,636) -------- -------- Cash flow from financing activities: Net change in borrowings under revolving credit facilities.......................... (23,824) 2,018 Repurchase of senior notes and subordinated debt (211,153) - Payment of fees and other expenses related to Merger and Recapitalization.................. (48,851) - Borrowings under New Credit Facility........... 750,000 - Decrease in borrowings under New Credit Facility (40,000) - Proceeds from the issuance of senior notes..... 240,000 - Purchase of Amphenol Common stock.............. (1,048,490) - Equity proceeds related to Merger.............. 341,041 - -------- -------- Cash flow from (used by) financing activities.... (41,277) 2,018 -------- -------- Net change in cash and short-term cash investments............................... 6,081 8,908 Cash and short-term cash investments balance, beginning of period................... 3,984 12,028 -------- -------- Cash and short-term cash investments balance, end of period......................... $ 10,065 $ 20,936 ________ ________ Cash paid during the year for: Interest paid $13,751 $11,809 Income taxes paid, net of refunds 9,960 31,034 See accompanying notes to condensed consolidated financial statements. AMPHENOL CORPORATION NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (dollars in thousands, except per share data) Note 1 - Principles of Consolidation and Interim Financial Statements - --------------------------------------------------------------------- The condensed consolidated balance sheet as of June 30, 1997 and December 31, 1996 and the related condensed consolidated statements of income for the three and six months ended June 30, 1997 and 1996 and of cash flow for the six months ended June 30, 1997 and 1996 include the accounts of the Company and its subsidiaries. The interim financial statements included herein are unaudited. In the opinion of management all adjustments, consisting only of normal recurring adjustments, necessary for a fair presentation of such interim financial statements have been included. The results of operations for the three and six months ended June 30, 1997 are not necessarily indicative of the results to be expected for the full year. These financial statements should be read in conjunction with the financial statements and notes included in the Company's 1996 Annual Report on Form 10-K/A. Note 2 - Inventories - -------------------- Inventories consist of: June 30, December 31, 1997 1996 --------- ------------ (Unaudited) Raw materials and supplies......... $ 21,443 $ 21,648 Work in process.................... 98,984 92,771 Finished goods..................... 43,080 38,864 -------- -------- $163,507 $153,283 ________ ________ Note 3 - Commitments and Contingencies - -------------------------------------- In the course of pursuing its normal business activities, the Company is involved in various legal proceedings and claims. Management does not expect that amounts, if any, which may be required to be paid by reason of such proceedings or claims will have a material effect on the Company's financial position or results of operations. Subsequent to the acquisition of Amphenol from Allied Signal Corporation ("Allied") in 1987, Amphenol and Allied have been named jointly and severally liable as potentially responsible parties in relation to several environmental cleanup sites. Amphenol and Allied have jointly consented to perform certain investigations and remedial and monitoring activities at two sites and they have been jointly ordered to perform work at another site. The responsibility for costs incurred relating to these sites is apportioned between Amphenol and Allied based on an agreement entered into in connection with the acquisition. For sites covered by this agreement, to the extent that conditions or circumstances occurred or existed at the time of or prior to the acquisition, the first $13,000 of costs are borne by Amphenol and have been incurred as of December 31, 1996. Allied is obligated to pay 80% of the excess over $13,000 and 100% of the excess over $30,000. Management does not believe that the costs associated with resolution of these or any other environmental matters will have a material adverse effect on the Company's financial position or results of operations. In December 1993, a subsidiary of the Company entered into a four year agreement with a financial institution whereby the subsidiary would sell an undivided interest of up to $50,000 in a designated pool of qualified accounts receivable. In May 1997 the agreement was amended and the term was extended through May 2004. Under the terms of the agreement, new receivables are added to the pool as collections reduce previously sold accounts receivable. The Company services, administers and collects the receivables on behalf of the purchaser. Fees payable to the purchaser under this agreement are equivalent to rates afforded high quality commercial paper issuers plus certain administrative expenses and are included in other income (expense), net in the accompanying Consolidated Statement of Income. The agreement contains certain covenants and provides for various events of termination. In certain circumstances the Company is contingently liable for the collection of the receivables sold; management believes that its allowance for doubtful accounts will be adequate to absorb the expense of any such liability. At June 30, 1997 and December 31, 1996, approximately $50,000 in receivables were sold under the agreement and are therefore not reflected in the accounts receivable balance in the accompanying Consolidated Balance Sheet. Note 4 - Merger and Recapitalization - ------------------------------------ On May 19, 1997, the Company merged with NXS Acquisition Corp., a wholly owned subsidiary of KKR 1996 Fund L.P., KKR Partners II, L.P., and NXS Associates, L.P., limited partnerships formed at the direction of Kohlberg Kravis Roberts & Co. L.P. ("KKR"). The Merger had the effect of affiliates of KKR investing $341,041 in exchange for 13,165,745 shares, or 75% of the Company's common stock. Such equity proceeds, along with $240,000 of proceeds from the sale of 9 7/8% Senior Subordinated Debentures due 2007 and borrowings of $750,000 under a $900,000 bank loan agreement ("Bank Agreement") were used to repurchase 40,325,240 shares of the Company's common stock for $1,048,490, purchase all of the Company's outstanding 10.45% Senior Notes and substantially all of the Company's 12 3/4% Subordinated Debentures for $211,153 and pay fees and expenses relating to the Merger and Recapitalization of $59,436 (of which approximately $10,000 were unpaid at June 30, 1997), including $18,000 paid to KKR. The Merger and related transactions have been recorded as a Recapitalization. Expenses related to the new debt of $39,292 have been recorded as deferred financing costs and are being amortized on the interest method over the life of the related debt, expenses related to the repurchase of the Company's stock of $17,644 have been reflected as a reduction of additional paid-in capital and the remaining expenses, primarily relating to the buyout of certain stock options, are reflected in the accompanying Statement of Income. The cost associated with early extinguishment of debt includes premiums associated with redemption of the Company's 10.45% Senior Notes and 12 3/4% Subordinated Debentures and the write off of unamortized deferred debt issuance costs and is reflected as an extraordinary item net of income taxes of $8,041 in the accompanying Statement of Income. Supplemental earnings per share assuming the Merger and Recapitalization were completed at the beginning of the quarter and six months ended June 30, 1997 but excluding the impact of non-recurring expenses relating to the Merger and Recapitalization, is $.63 and $.95 for the quarter and six months, respectively. Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND FINANCIAL CONDITION (dollars in thousands, except per share data) Results of Operations - --------------------- Quarter and six months ended June 30, 1997 compared to the quarter and six - -------------------------------------------------------------------------- months ended June 30, 1996 - -------------------------- Net sales in the second quarter of 1997 increased approximately 14% from the comparable 1996 quarter to $226,996. For the six months ended June 30, 1997, net sales increased approximately 11% to $438,769. The increase in sales for both the quarter and six month period is primarily attributable to increased sales of interconnect products particularly in the communications, aerospace and industrial markets. Currency translation and the relatively stronger U.S. dollar had the effect of decreasing sales by approximately $4.7 million in the second quarter and approximately $9.5 million in the six month period 1997 when compared to exchange rates for the comparable 1996 periods. The gross profit margin as a percentage of net sales (including depreciation in cost of sales) was 33% for the 1997 second quarter and six month period compared to 34% for the 1996 second quarter and six month period, respectively. The decrease in the gross profit margin in both the 1997 quarter and six month period is generally attributable to margin pressure in the Company's coaxial cable business and certain European interconnect product operations. Selling, general and administrative expenses as a percentage of net sales decreased to approximately 14% for the quarter and six month period ended June 30, 1997 from approximately 15% for the 1996 second quarter and six month periods. The reduction is primarily attributable to higher sales volume in the 1997 periods. Interest expense for the second quarter and six months increased to $14,249 and $20,671 in 1997 from $6,091 and $12,143 in 1996, respectively. The increase in both periods is primarily attributable to increased debt levels resulting from the Merger and Recapitalization which closed on May 19, 1997 (Note 4). Other income (expense), net for the second quarter and six months was $2,901 and $1,684 in 1997 compared to ($903) and ($1,627) in 1996, respectively. The 1997 periods include a gain on sale of marketable securities of $3,917. The provision for income taxes for the six months ended June 30, 1997 was $22,007 compared to $22,238 in 1996. The 1997 estimated effective tax rate of approximately 40% reflects federal, state and foreign taxes. Liquidity and Capital Resources - ------------------------------- Cash provided by operating activities was $50,253 in the six months ended June 30, 1997 compared to $17,526 in the 1996 period. The increase in cash flow from operating activities relates primarily to a net decrease in non-cash components of working capital. The increase in working capital in the 1996 period reflected significantly higher tax payments ($31,034 in 1996, $9,960 in 1997). In 1997 cash from operating activities, proceeds from the sale of marketable securities of $7,351 and net funds available from the Merger and Recapitalization (Note 4) of $22,547 were used to fund capital expenditures of $10,246 and debt reduction of $63,824 (of which $40 million represents a prepayment of term loan borrowings under the Company's Bank Agreement). In conjunction with the Merger and Recapitalization, the Company entered into a $900 million Bank Agreement with a syndicate of financial institutions, comprised of a $150 million revolving credit facility that expires in the year 2004 and a $750 million term loan facility. At June 30, 1997, the Company had prepaid $40 million of the term loan. The credit agreement requires the maintenance of certain interest coverage and leverage ratios, and includes limitations with respect to, among other things, indebtedness, and restricted payments, including dividends on the Company's common stock. At June 30, 1997 there were $710 million of borrowings outstanding under the term loan facility and there were no amounts outstanding under the revolving credit facility. In July the Company entered into interest rate protection agreements that effectively fix the Company's interest cost on $450 million of borrowings under the Bank Agreement to the extent the LIBOR interest rates remain below 7% to 8%. The Company's EBITDA as defined in the Bank agreement was $94.7 million and $84.9 million for the six months ended June 30, 1997 and 1996, respectively. EBITDA is not a defined term under Generally Accepted Accounting Principles (GAAP) and is not an alternative to operating income or cash flow from operations as determined under GAAP. The Company believes that EBITDA provides additional information for determining its ability to meet future debt service requirements; however, EBITDA does not reflect cash available to fund cash requirements. The Company's primary ongoing cash requirements will be for debt service, capital expenditures and product development activities. The Company's debt service requirements consist primarily of principal and interest on bank borrowings and interest on Senior Subordinated Notes due 2007. The Company has not paid, and does not have any present intention to commence payment of, cash dividends on its Common Stock. The Company expects that ongoing requirements for debt service, capital expenditures and product development activities will be funded by internally-generated cash flow and availability under the Company's revolving credit facility. Environmental Matters - --------------------- Subsequent to the acquisition of Amphenol from Allied Signal Corporation ("Allied") in 1987, Amphenol and Allied have been named jointly and severally liable as potentially responsible parties in relation to several environmental cleanup sites. Amphenol and Allied have jointly consented to perform certain investigations and remedial and monitoring activities at two sites and they haven been jointly ordered to perform work at another site. The responsibility for costs incurred relating to these sites is apportioned between Amphenol and Allied based on an agreement entered into in connection with the acquisition. For sites covered by this agreement, to the extent that conditions or circumstances occurred or existed at the time of or prior to the acquisition, the first $13,000 of costs are borne by Amphenol and have been incurred as of December 31, 1996. Allied is obligated to pay 80% of the excess over $13,000 and 100% of the excess over $30,000. Management does not believe that the costs associated with resolution of these or any other environmental matters will have a material adverse effect on the Company's financial position or results of operations. Future Accounting Changes - ------------------------- In June 1996 the Financial Accounting Standards Board issued Statement of Financial Accounting Standards No. 125 (FAS 125), "Accounting for Transfers and Servicing of Financial Assets and Extinguishment of Liabilities." The Company adopted the Statement effective January 1, 1997. Adoption of the Statement had no effect on the Company's financial position or results of operations. In February 1997 the Financial Accounting Standards Board issued Statement of Financial Accounting Standards No. 128 (FAS 128), "Earnings per Share." Management has reviewed the Statement and believes that implementation of the Statement will not have a material effect on the Company's results of operations. The Company is required to adopt the Statement effective December 15, 1997. Cautionary Statements for Purposes of Forward Looking Information - ----------------------------------------------------------------- Statements in this report that are not strictly historical are "forward-looking" statements which should be considered as subject to the many uncertainties that exist in the Company's operations and business environment. These uncertainties which include, among other things, economic and currency conditions, market demand and pricing and competitive and cost factors are set forth in the Company's 1996 Annual Report on Form 10-K/A. PART II OTHER INFORMATION Item 1. LEGAL PROCEEDINGS Reference is made to the Company's 1996 Annual Report on Form 10-K as amended by Amendment No. 1 thereto on Form 10-K/A, (the "10-K"). As described in greater detail in the 10-K, in December 1995, the Company and Allied received a letter from the United States Environ- mental Protection Agency (the "EPA"), demanding that the Company and Allied accept responsibility for the investigation and cleanup of the Sidney Center Landfill, an EPA Superfund site (the "Sidney Site"). The Sidney Center Landfill was a municipal landfill site utilized by the Company's Sidney facility and other local towns and businesses. The Company has acknowledged that it sent general plant refuse to the Sidney Site but no hazardous waste. Allied and the Company offered to prepare a remedial design and to assist the EPA in identifying other potentially responsible parties for the Sidney Site. In July 1996, the Company and Allied received a unilateral order from the EPA directing the Company and Allied to perform certain investigation, design and cleanup activities at the Sidney Site. The Company and Allied responded to the unilateral order by agreeing to undertake certain remedial design activities. In March 1997, the EPA filed a lawsuit by which it seeks to recover from Allied and the Company $2.7 million in alleged past response costs relating to the Sidney Site. To date the Company and Allied have not accepted any responsibility for the cleanup of the Sidney Site. The Company and Allied have, however, continued work on the preparation of a remedial design and the identification of other potentially responsible parties for the Sidney Site. Reference is also made to the Company's Current Report on Form 8-K dated May 9, 1997, relating to the proposed settlement of two class action lawsuits relating to the Merger and Recapitalization. Item 2. CHANGES IN SECURITIES In connection with the Merger and Recapitalization, the stockholders of the Company and the Company adopted and approved a Certificate of Merger dated May 19, 1997 including a Restated Certificate of Incorporation for the Company, which among other things reduced the total number of shares which the Company shall have authority to issue from one hundred one million (101,000,000) consisting of ninety-six million two hundred fifty thousand (96,250,000) shares of Class A Common Stock, three million seven hundred fifty thousand (3,750,000) shares of Class B Common Stock and one million (1,000,000) shares of Preferred Stock to forty million (40,000,000) shares of Common Stock. Of the forty million (40,000,000) shares of Common Stock currently authorized, seventeen million five hundred sixteen thousand nine hundred fifty-five (17,516,955) are currently outstanding. The continuing rights of the holders of the Company's Common Stock have not been materially modified. Item 3. DEFAULTS UPON SENIOR SECURITIES None Item 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY-HOLDERS A Special Meeting in lieu of the 1997 Annual Meeting of the Stockholders of the Company was held on May 14, 1997 to (i) vote upon a proposal to approve and adopt the Agreement and Plan of Merger, dated as of January 23, 1997 and as amended as of April 9, 1997 between the Company and NXS Acquisition Corp. (the "Merger Agreement") ("Proposal 1"); (ii) elect two directors to serve either until their terms expire; provided, that if the Merger Agreement is approved and adopted by the stockholders of the Company, the directors of the Company immediately after the effective time of the closing of the Merger Agreement would be Martin H. Loeffler and the then current directors of NXS Acquisition Corp. ("Proposal 2"); and (iii) ratify the selection of Price Waterhouse LLP as independent auditors of the Company ("Proposal 3"). Proposal 1 was approved by the stockholders of the Company by a vote of 34,749,400 FOR to 319,360 AGAINST, with 164,335 ABSTENTIONS. As a result of the approval of Proposal 1 Martin H. Loeffler and the then current directors of NXS Acquisition Corp. including Henry R. Kravis, George R. Roberts, Michael W. Michelson, Marc S. Lipschultz and Andrew Clarkson became directors of the Company effective with the closing of the Merger. Proposal 3 was approved by the stockholders of the Company by a vote of 38,265,947 FOR to 26,889 AGAINST, with 177,060 ABSTENTIONS. Item 5. OTHER INFORMATION None Item 6. EXHIBITS AND REPORTS ON FORM 8-K (a) Listing of Exhibits 2.1 Agreement and Plan of Merger dated as of January 23, 1997 between NXS Acquisition Corp. and Amphenol Corporation (incorporated by reference to Current Report on Form 8-K dated January 23, 1997).** 2.2 Amendment, dated as of April 9, 1997, to the Agreement and Plan of Merger between NXS Acquisition Corp. and Amphenol Corporation, dated as of January 23, 1997 (incorporated by reference to the Registration Statement on Form S-4 (registration No. 333-25195) filed on April 15, 1997).** 3.1 Certificate of Merger, dated May 19, 1997 (including Restated Certificate of Incorporation of Amphenol Corporation).* * Filed herewith ** Previously filed 3.2 By-Laws of the Company as of May 19, 1997 - NXS Acquisition Corp. By-Laws.* 4.1 Indenture between Amphenol Corporation and IBJ Schroeder Bank and Trust Company, as Trustee, dated as of May 19, 1997, relating to Senior Subordinated Notes due 2007.* 10.1 Amended and Restated Receivables Purchase Agreement dated as of May 19, 1997 among Amphenol Funding Corp., the Company, Pooled Accounts Receivable Capital Corporation and Nesbitt Burns Securities, Inc., as Agent.* 10.2 Amended and Restated Purchase and Sale Agreement dated as of May 19, 1997 among the Originators named therein, Amphenol Funding Corp. and the Company.* 10.3 Credit Agreement dated as of May 19, 1997 among the Company, Amphenol Holding UK, Limited, Amphenol Commercial and Industrial UK, Limited, the Lenders listed therein, The Chase Manhattan Bank, as Syndication Agent, the Bank of New York, as Documentation Agent and Bankers Trust Company, as Administrative Agent and Collateral Agent.* 10.4 1997 Amphenol Incentive Plan (filed as Exhibit 10.13 to the 1996 10-K).** 10.5 Amended and Restated Salaried Employees Pension Plan of Amphenol Corporation (filed as Exhibit 10.12 to the 1994 10-K).** 10.6 Amended and Restated LPL Technologies Inc. Retirement Plan for Salaried Employees (filed as Exhibit 10.13 to the 1994 10-K).** 10.7 Amphenol Corporation Supplemental Employee Retirement Plan formally adopted effective January 25, 1996 (filed as Exhibit 10.18 to the 1996 10-K).** 10.8 LPL Technologies Inc. and Affiliated Companies Employee Savings/401(k) Plan, dated and adopted January 23, 1990 (filed as Exhibit 10.19 to the 1991 Registration Statement).** 10.9 Management Agreement between the Company and Dr. Martin H. Loeffler, dated July 28, 1987 (filed as Exhibit 10.7 to the 1987 Registration Statement).** 10.10 Agreement and Plan of Merger among Amphenol Acquisition Corporation, Allied Corporation and the Company, dated April 1, 1987, and the Amendment thereto dated as of May 15, 1987 (filed as Exhibit 2 to the 1987 Registration Statement).** * Filed herewith ** Previously filed 10.11 Settlement Agreement among Allied Signal Inc., the Company and LPL Investment Group, Inc. dated November 28,1988 (filed as Exhibit 10.20 to the 1991 Registration Statement).** 10.12 Registration Rights Agreement dated as of May 19, 1997, among NXS Acquisition Corp., KKR 1996 Fund L.P., NXS Associates L.P., KKR Partners II, L.P. and NXS I, L.L.C. (filed as Exhibit 99.5 to Schedule 13D, Amendment No.1, relating to the beneficial ownership of shares of the Company's Common Stock by NXS I, L.L.C., KKR 1996 Fund, L.P., KKR Associates (1996) L.P., KKR 1996 GP LLC, KKR Partners II, L.P., KKR Associates L.P., NXS Associates L.P., KKR Associates (NXS) L.P., and KKR-NXS L.L.C. dated May 27, 1997).** 10.13 Management Stockholder's Agreement entered into as of May 19, 1997 between the Company and Martin H. Loeffler.* 10.14 Management Stockholder's Agreement entered into as of May 19, 1997 between the Company and Edward G. Jepsen.* 10.15 Management Stockholder's Agreement entered into as of May 19, 1997 between the Company and Timothy F. Cohane.* 10.16 1997 Option Plan for Key Employees of Amphenol and Subsidiaries.* 10.17 Non-Qualified Stock Option Agreement between the Company and Martin H. Loeffler dated as of May 19, 1997.* 10.18 Non-Qualified Stock Option Agreement between the Company and Edward G. Jepsen dated as of May 19, 1997.* 10.19 Non-Qualified Stock Option Agreement between the Company and Timothy F. Cohane dated as of May 19, 1997.* 27. Financial Data Schedule.* (b) Reports filed on Form 8-K A current report on Form 8-K dated May 9, 1997 was filed with the Securities and Exchange Commission on May 9, 1997, reporting information under Items 5 and 7 thereof and providing a copy of the Press Release announcing the execution of a Memorandum of Under- standing relating to the proposed settlement of two class action lawsuits relating to the Company's then proposed merger with NXS Acquisition Corp., a subsidiary of an affiliate of Kohlberg Kravis Roberts & Co., L.P. * Filed herewith ** Previously filed A current report and Form 8-K dated June 20, 1997 was filed with the Securities and Exchange Commission on June 20, 1997, reporting information under Items 4 and 7 thereof that Deloitte and Touche LLP has been appointed as the Registrant's certified public accountants replacing Price Waterhouse LLP who was dismissed, effective June 13, 1997. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. AMPHENOL CORPORATION DATE: August 14, 1997 /s/ Edward G. Jepsen ----------------- --------------------------- Edward G. Jepsen Executive Vice President and Chief Financial Officer EX-3.1 2 CERTIFICATE OF MERGER Exhibit 3.1 CERTIFICATE OF MERGER OF NXS ACQUISITION CORP. INTO AMPHENOL CORPORATION UNDER SECTION 251 OF THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE Pursuant to Section 251(c) of the General Corporation Law of the State of Delaware, Amphenol Corporation, a Delaware corporation (the "Corporation"), hereby certifies the following information relating to the merger of NXS Acquisition Corp., a Delaware corporation ("Newco"), with and into the Corporation (the "Merger"): FIRST: The names of the constituent corporations in the Merger (the "Constituent Corporations") and their states of incorporation are as follows: Name State ---- ----- Amphenol Corporation Delaware NXS Acquisition Corp. Delaware SECOND: The Agreement and Plan of Merger, dated as of January 23, 1996 and as amended as of April 9, 1997 (the "Merger 2 Agreement") between Newco and the Corporation, setting forth the terms and conditions of the Merger, has been approved, adopted, certified, executed and acknowledged by each of the Constituent Corporations in accordance with the provisions of Section 251 of the General Corporation Law of the State of Delaware. THIRD: The surviving corporation in the Merger is the Corporation (the "Surviving Corporation"). FOURTH: The Restated Certificate of Incorporation of the Corporation shall be amended in its entirety to read as set forth below, and as such shall be the Restated Certificate of Incorporation of the Surviving Corporation: "FIRST: The name of the Corporation is Amphenol Corporation. SECOND: The registered office and registered agent of the Corporation is The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the Delaware General Corporation Law. FOURTH: The total number of shares of stock that the Corporation is authorized to issue is 40,000,000 shares of Class A Common Stock, par value $.001 each. FIFTH: The Board of Directors of the Corporation, acting by majority vote, may alter, amend or repeal the By-Laws of the Corporation. 3 SIXTH: For the management of the business and for the conduct of the affairs of the Corporation, and in further definition, limitation and regulation of the powers of the Corporation and of its directors and of its stockholders or any class thereof, as the case may be, it is further provided: I. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. (1) The directors shall have concurrent power with the stockholders to make, alter, amend, change, add to or repeal the By-Laws of the Corporation. (2) The number of directors of the Corporation shall be three or more as from time to time fixed by, or in the manner provided in, the By-Laws of the Corporation. At all times after December 1, 1987, not less than two directors of the Corporation shall be persons who are not officers or employees of the Corporation or any affiliate of the Corporation and are not members of the immediate family of, controlled by, or under common control with any such officer or employee. Election of directors need not be by written ballot unless the ByLaws so provide. (3) The directors shall be classified, with respect to the time for which they severally hold office, into three classes, as nearly equal in number as possible, one class to hold office initially for a term expiring at the annual meeting of stockholders to be held in 1992, another class to hold office initially for a term expiring at the annual meeting of stockholders to be held in 1993, and another class to hold office initially for a term expiring at the annual meeting of stockholders to be held in 1994, with the members of each class to hold office until their successors are elected and qualified. At each annual meeting of the stockholders of the Corporation following the adoption of this Restated Certificate of Incorporation, the successors to the class of directors whose term expires at that meeting shall be elected to hold office for a term expiring at the annual meeting of stockholders 4 held in the third year following the year of their election. (4) Subject to the rights of the holders of any class or series of capital stock having preference over the Common Stock as to dividends or to elect directors under specified circumstances, any director, or the entire Board of Directors, may be removed from office at any time by the affirmative vote of the majority of the stockholders entitled to vote for the election of directors but only for cause. (5) The affirmative vote of the holders of at least 80 percent of the combined voting power of all the then-outstanding shares of the Corporation entitled to vote in the election of directors, voting together as a single class, shall be required to alter, amend or repeal paragraphs (3), (4), (5) or (6) of this Article SIXTH, or any provision thereof. (6) In addition to the powers and authority hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of the DGCL, this Restated Certificate of Incorporation, and any By-Laws adopted by the stockholders; provided, however, that no By-Laws hereafter adopted by the stockholders shall invalidate any prior act of the directors which would have been valid if such By-Laws had not been adopted. SEVENTH: Except as otherwise provided by the Delaware General Corporation Law as the same exists or may hereafter be amended, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. Any repeal or modification of this Article SEVENTH by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification. 5 EIGHTH: To the fullest extent permitted by the Delaware General Corporation Law, the Corporation shall indemnify any current or former director or officer of the Corporation and may, at the discretion of the Board of Directors, indemnify any current or former employee or agent of the Corporation against all expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with any threatened, pending or completed action, suit or proceeding brought by or in the right of the Corporation or otherwise, to which he was or is a party by reason of his current or former position with the Corporation or by reason of the fact that he is or was serving, at the request of the Corporation, as a director, officer, partner, trustee, employee or agent of another corporation, partnership, joint venture, trust or other enterprise." FIFTH: The executed Merger Agreement is on file at the principal place of business of the Surviving Corporation, 358 Hall Avenue, Wallingford, Connecticut 06492. SIXTH: A copy of the Merger Agreement will be furnished by the Surviving Corporation, on request and without cost, to any stockholder of either of the Constituent Corporations. 6 IN WITNESS WHEREOF, this Certificate of Merger has been executed on the 19th day of May, 1997. AMPHENOL CORPORATION By ---------------------------- Name: Title: EX-3.2 3 BY-LAWS OF COMPANY & NXS CORP. EXHIBIT 3.2 AMPHENOL CORPORATION BY-LAWS ARTICLE I MEETINGS OF STOCKHOLDERS Section 1. Place of Meeting and Notice. Meetings of the stockholders of the Corporation shall be held at such place either within or without the State of Delaware as the Board of Directors may determine. Section 2. Annual and Special Meetings. Annual meetings of stockholders shall be held, at a date, time and place fixed by the Board of Directors and stated in the notice of meeting, to elect a Board of Directors and to transact such other business as may properly come before the meeting. Special meetings of the stockholders may be called by the President for any purpose and shall be called by the President or Secretary if directed by the Board of Directors or requested in writing by the holders of not less than 50% of the capital stock of the Corporation. Each such stockholder request shall state the purpose of the proposed meeting. Unless otherwise determined by the Board of Directors prior to any meeting of stockholders, the presiding officer of such meeting shall determine the order of business and shall have the authority in his or her discretion to regulate the conduct of any such meeting, including, without limitation, by imposing restrictions on the persons (other than stockholders of the Corporation or their duly appointed proxies) who may attend any such meeting, whether any stockholder or stockholders' proxy may be excluded from any meeting of stockholders based upon any determination by the presiding officer, in his or her sole discretion, that any such person has unduly disrupted or is likely to disrupt the proceedings thereat, and the circumstances in which any person may make a statement or ask questions at any meeting of stockholders. Section 3. Notice. Except as otherwise provided by law, at least 10 and not more than 60 days before each meeting of stockholders, written notice of the time, date and place of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be given to each stockholder. Section 4. Quorum. At any meeting of stockholders, the holders of record, present in person or by proxy, of a majority of the Corporation's issued and outstanding capital stock shall constitute a quorum for the transaction of business, except as otherwise provided by law. In the absence of a quorum, any officer entitled to preside at or to act as secretary of the 2 meeting shall have power to adjourn the meeting from time to time until a quorum is present. Section 5. Voting. Except as otherwise provided by law, all matters submitted to a meeting of stockholders shall be decided by vote of the holders of record, present in person or by proxy, of a majority of the Corporation's issued and outstanding capital stock. Section 6. Notice of Stockholder Nominees. Only persons who are nominated in accordance with the following procedures shall be eligible for election as Directors. Nominations of persons for election to the Board of Directors of the Corporation may be made at a meeting of stockholders by or at the direction of the Board of Directors, by any nominating committee or person appointed to make such nominations by the Board of Directors, or by any stockholder of the Corporation entitled to vote for the election of Directors at the meeting who complies with the notice procedures set forth in this Section 6. Such nominations, if made by a stockholder of the Corporation as such, shall be made pursuant to timely notice in writing addressed to the Secretary of the Corporation. To be timely, a stockholder's notice shall be delivered to or mailed and received at the principal executive offices of the Corporation not less than 60 days nor more than 90 days prior to the meeting at which Directors are to be elected; provided, however, that in the event that less than 70 days' notice or prior public disclosure of the date of the meeting is given or made to stockholders, notice by the stockholder to be timely must be so received no later than the close of business on the 10th day following the day on which such notice of the date of the meeting was mailed or such public disclosure was made. Such stockholder's notice shall set forth: (a) as to each person whom the stockholder proposes to nominate for election or re-election as a Director (i) the name, age, business address and residence address of the person, (ii) the principal occupation or employment of the person, (iii) the class and number of shares of stock of the Corporation which are beneficially owned by the person and (iv) any other information relating to the person that would be required to be disclosed in solicitations for proxies for election of Directors pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended, or any successor rule thereto; and (b) as to the stockholder giving the notice (i) the name and record address of the stockholder and (ii) the class and number of shares of the Corporation which are beneficially owned by the stockholder. The Corporation may require any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as a Director of the Corporation. No person shall be eligible for election as a Director of the Corporation unless nominated in accordance with the procedures set forth herein. 3 The presiding officer at the meeting shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedure, and following any such determination, the presiding officer shall so declare to the meeting and the defective nomination shall be disregarded. Section 7. Notice of Stockholder Proposals. At an annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting business must be (a) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (b) otherwise properly brought before the meeting by or at the direction of the Board of Directors, or (c) otherwise properly brought before the meeting by a stockholder entitled to vote on such business at the meeting who complies with the notice provisions set forth in this Section 7. For business to be properly brought before an annual meeting by a stockholder, the stockholder must have given timely notice thereof in writing addressed to the Secretary of the Corporation. To be timely, a stockholder's notice shall be delivered to or mailed and received at the principal executive offices of the Corporation not less than 60 days nor more than 90 days prior to the meeting at which the business would be acted upon; provided, however, that in the event that less than 70 days' notice or prior public disclosure of the date of the meeting is given or made to stockholders, notice by the stockholder to be timely must be so received no later than the close of business on the 10th day following the day on which such notice of the date of the meeting was mailed or such public disclosure was made. Such stockholder's notice shall set forth: (a) as to each matter the stockholder proposes to bring before the annual meeting a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting and (b) as to the stockholder proposing such business (i) the name and record address of the stockholder, (ii) the class and number of shares of the Corporation which are beneficially owned by the stockholder and (iii) any material interest of the stockholder in such business. No business shall be conducted at any annual meeting except in accordance with the procedures set forth herein. The presiding officer at the annual meeting shall, if the facts warrant, determine and declare to the meeting that any stockholder proposal was not properly brought before the meeting and in accordance with the provisions of this Section 7, and following any such determination, the presiding officer shall so declare to the meeting and any such stockholder proposal shall not be acted upon. Section 8. Voting Procedures and Inspectors of Elections. The Corporation shall, in advance of any meeting of stockholders, appoint one or more inspectors to act at the 4 meeting and make a written report thereof. The Corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his duties in accordance with the provisions of the General Corporation Law of the State of Delaware, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his ability. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting. No ballot proxies or votes, nor any revocations thereof or changes thereto, shall be accepted by the inspectors after the closing of the polls except as provided under the General Corporation Law of the State of Delaware. In determining the validity and counting of proxies and ballots, the inspector shall be limited to an examination of the proxies, any envelopes submitted with those proxies, any information provided in accordance with the provisions of the General Corporation Law of the State of Delaware, ballots and the regular books and records of the Corporation, except that the inspectors may consider other reliable information for the limited purpose of reconciling proxies and ballots submitted by or on behalf of banks, brokers, their nominees or similar persons which represent more votes than the holder of a proxy is authorized by the record owner to cast or more votes than the stockholder holds of record. If the inspectors consider other reliable information for the limited purpose permitted herein, the inspectors at the time they make their certification shall specify the precise information considered by them, including the person or persons from whom they obtained the information, when the information was obtained and the basis for the inspectors' belief that such information is accurate and reliable. Section 9. Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporations's notice of meeting pursuant to Article I, Section 3 of these By-Laws. 5 ARTICLE II DIRECTORS Section 1. Number, Election and Removal of Directors. The number of Directors that shall constitute the Board of Directors shall not be less than three or more than fifteen. The Directors shall be divided into three classes in the manner set forth in the Restated Certificate of Incorporation of the Corporation, each class to be elected for the term set forth therein. The number of Directors of the Board of Directors on the date of the adoption and effectiveness of these By-Laws shall be six. Thereafter, within the limits specified above, the number of Directors shall be determined by the Board of Directors or the stockholders. The Directors shall be elected by stockholders at their annual meeting. Vacancies and newly created directorships resulting from any increase in the number of Directors may be filled by a majority of the Directors then in office, although less than a quorum, or by the sole remaining Director or by the stockholders. Section 2. Meetings. Regular meetings of the Board of Directors shall be held at such times and places as may from time to time be fixed by the Board of Directors or as may be specified in a notice of meeting. Special meetings of the Board of Directors may be held at any time upon the call of the President and shall be called by the President or Secretary if directed by the Board of Directors. Telegraphic or written notice of each special meeting of the Board of Directors shall be sent to each Director not less than twenty-four hours before such meeting. A meeting of the Board of Directors may be held without notice immediately after the annual meeting of the stockholders. Notice need not be given of regular meetings of the Board of Directors. Section 3. Quorum. A majority of the total number of Directors shall constitute a quorum for the transaction of business. If a quorum is not present at any meeting of the Board of Directors, the Directors present may adjourn the meeting from time to time, without notice other than announcement at the meeting, until such a quorum is present. Except as otherwise provided by law, the Certificate of Incorporation of the Corporation, these By-Laws or any contract or agreement to which the Corporation is a party, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board of Directors. Section 4. Committees. The Board of Directors may, by resolution adopted by a majority of the whole Board, designate one or more committees, including, without limitation, an Executive Committee, to have and exercise such power and authority as the Board of Directors shall specify. In the absence or disqualification of a member of a committee, the 6 member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another Director to act at the absent or disqualified member. Section 5. Compensation of Directors. Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, the Board of Directors shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as director. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. ARTICLE III OFFICERS The officers of the Corporation shall consist of a President, a Vice President, a Secretary, a Treasurer, an Assistant Secretary, an Assistant Treasurer and such other additional officers with such titles as the Board of Directors shall determine, all of which shall be chosen by and shall serve at the pleasure of the Board of Directors. Such officers shall have the usual powers and shall perform all the usual duties incident to their respective offices. All officers shall be subject to the supervision and direction of the Board of Directors. The authority, duties or responsibilities of any officer of the Corporation may be suspended by the President with or without cause. Any officer elected or appointed by the Board of Directors may be removed by the Board of Directors with or without cause. ARTICLE IV INDEMNIFICATION Section 1. Power to Indemnify in Actions, Suits or Proceedings Other Than Those by or in the Right of the Corporation. Subject to Section 3 of this Article IV, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, other than an action by or in the right of the Corporation, by reason of the fact that he is or was a Director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a Director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by 7 him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation. Subject to Section 3 of this Article IV, the Corporation shall indemnify any person who was or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a Director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a Director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the Corporation unless and only to the extent that the Court of Chancery or the Court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. Section 3. Authorization of Indemnification. Any indemnification under this Article IV (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the Director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 1 or Section 2 of this Article IV, as the case my be. Such determination shall be made (i) by the Board of Directors by a majority vote of a quorum consisting of Directors who were not parties to such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or , even if obtainable a quorum of disinterested Directors so directs, by independent legal counsel in a written opinion, or (iii) by the stockholders. To the extent, however, that a Director, officer, 8 employee or agent of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith, without the necessity for authorization in the specific case. Section 4. Good Faith Defined. For purposes of any determination under Section 3 of this Article IV, a person shall be deemed to have acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have no reasonable cause to believe his conduct was unlawful, if his action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to him by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records given or reports made to the Corporation or another enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The term "another enterprise" as used in this Section 4 shall mean any other corporation or any partnership, joint venture, trust or other enterprise of which such person is or was serving at the request of the Corporation as Director, officer, employee or agent. The provisions of this Section 4 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Sections 1 or 2 of this Article IV, as the case may be. Section 5. Indemnification by a Court. Notwithstanding any contrary determination in the specific case under Section 3 of this Article IV, and notwithstanding the absence of any determination thereunder, any Director, officer, employee or agent may apply to any court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under Sections 1 and 2 of this Article IV. The basis of such indemnification by a court shall be a determination by such court that indemnification of the Director, officer, employee or agent is proper in the circumstances because he had met the applicable standards of conduct set forth in Sections 1 or 2 of this Article IV, as the case may be. Notice of any application for indemnification pursuant to this Section 5 shall be given to the Corporation promptly upon the filing of such application. Section 6. Expenses Payable in Advance. Expenses incurred in defending or investigating a threatened or pending action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding as authorized by the Board of Directors in the 9 specific case upon receipt of an undertaking by or on behalf of the Director, officer, employee or agent to repay such amount unless it shall ultimately be determined that he is entitled to be indemnified by the Corporation as authorized in this Article IV. Section 7. Non-exclusivity and Survival of Indemnification. The indemnification provided by this Article IV shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any By-Law, agreement, contract, vote of stockholders or disinterested Directors or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that indemnification of the persons specified in Sections 1 or 2 of this Article IV shall be made to the fullest extent permitted by law. The provisions of this Article IV shall not be deemed to preclude the indemnification of any person who is not specified in Sections 1 or 2 of this Article IV but whom the Corporation has the power or obligation to indemnify under the provisions of the General Corporation Law of the State of Delaware, or otherwise. The indemnification provided by this Article IV shall continue as to a person who has ceased to be a Director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such person. Section 8. Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a Director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a Director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power or the obligation to indemnify him against such liability under the provisions of this Article IV. Section 9. Meaning of "Corporation" for Purposes of Article IV. For purposes of this Article IV, references to "the Corporation" shall include, in addition to the resulting Corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued would have had power and authority to indemnify its Directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article IV with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued. 10 ARTICLE V GENERAL PROVISIONS Section 1. Notices. Whenever any statute, the Certificate of Incorporation or these By-Laws require notice to be given to any Director or stockholder, such notice may be given in writing by mail, addressed to such Director or stockholder at his address as it appears in the records of the Corporation, with postage thereon prepaid. Such notice shall be deemed to have been given when it is deposited in the United States mail. Notice to Directors may also be given by telegram. A waiver of such notice in writing signed by the person or persons entitled thereto, whether before or after the time stated in such notice, shall be equivalent to the giving of such notice. Attendance of a Director at a meeting shall constitute a waiver of notice of such meeting except where a Director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Section 2. Fiscal Year. The fiscal year of the Corporation shall be fixed by the Board of Directors. ARTICLE VI AMENDMENTS These By-Laws may be amended, added to, rescinded or repealed at any meeting of the Board of Directors or of the stockholders, provided notice of the proposed change was given in the notice of the meeting of the stockholders or in the case of a meeting of the Board of Directors, in a notice given not less than two days prior to the meeting; provided, however, that, notwithstanding any other provisions of these By-Laws or any provision of law which might otherwise permit a lesser vote of the stockholders, the affirmative vote of the holders of at least 80 percent in voting power of all shares of the Corporation entitled to vote generally in the election of Directors, voting together as a single class, shall be required in order for the stockholders to alter, amend or repeal Section 1 of Article II, or this proviso to this Article VI of these By-Laws or to adopt any provision inconsistent with such Section or with this proviso. EX-4.1 4 INDENTURE Exhibit 4.1 EXECUTION COPY AMPHENOL CORPORATION as Issuer and IBJ Schroder Bank & Trust Company as Trustee -------------------- Indenture Dated as of May 15, 1997 --------------------- $240,000,000 97/8% Senior Subordinated Notes due May 15, 2007 AMPHENOL CORPORATION* Reconciliation and tie between Trust Indenture Act of 1939 and Indenture, dated as of May 15, 1997 Trust Indenture Act Section Indenture Section ss. 310(a)(1) .......................................... 608 (a)(2) .......................................... 608 (b) .......................................... 609 ss. 311 .......................................... 101 ss. 312(a) .......................................... 701 (c) .......................................... 702 ss. 313(a) .......................................... 703 (c) .......................................... 703 ss. 314(a)(4) .......................................... 1010(a) (c)(1) .......................................... 102 (c)(2) .......................................... 102 (e) .......................................... 102 ss. 315(a) .......................................... 601(a) (b) .......................................... 602 (c) .......................................... 601(b) (d) .......................................... 601(c), 603 ss. 316(a)(last sentence) .......................................... 101 (a)(1)(A) .......................................... 502, 512 (a)(1)(B) .......................................... 513 (b) .......................................... 508 (c) .......................................... 104(d) ss. 317(a)(1) .......................................... 503 (a)(2) .......................................... 504 (b) .......................................... 1003 ss. 318(a) .......................................... 111 - ---------- *Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture. TABLE OF CONTENTS* Page PARTIES......................................................................1 RECITALS OF THE COMPANY......................................................1 ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION SECTION 101. Definitions............................................... 1 Acquired Indebtedness.............................................. 2 Act ............................................................... 2 Affiliate ......................................................... 2 Agent ............................................................. 2 Asset Sale ........................................................ 2 Authenticating Agent............................................... 3 Bank Agent ........................................................ 3 Bankruptcy Law .................................................... 3 Board of Directors................................................. 3 Board Resolution................................................... 3 Business Day ...................................................... 3 Capital Stock ..................................................... 3 Capitalized Lease Obligation....................................... 3 Cash Equivalents................................................... 4 Change of Control.................................................. 4 Commission ........................................................ 4 Common Stock ...................................................... 4 Company ........................................................... 4 Company Request or Company Order................................... 4 Consolidated Depreciation and Amortization Expense................. 5 Consolidated Interest Expense...................................... 5 Consolidated Net Income............................................ 5 Contingent Obligations............................................. 6 Corporate Trust Office............................................. 6 Custodian ......................................................... 6 Default ........................................................... 6 Defaulted Interest................................................. 6 Depositary ........................................................ 6 Designated Noncash Consideration................................... 6 Designated Preferred Stock......................................... 7 Designated Senior Indebtedness..................................... 7 Disqualified Stock................................................. 7 - ---------- *Note: This table of contents shall not, for any purpose, be deemed to be a part of the Indenture. Page ---- EBITDA ............................................................ 7 Equity Interests................................................... 8 Equity Offering ................................................... 8 Event of Default................................................... 8 Exchange Act ...................................................... 8 Existing Indebtedness.............................................. 8 Existing Notes .................................................... 8 Existing Senior Notes.............................................. 8 Financings ........................................................ 8 Fixed Charge Coverage Ratio........................................ 8 Fixed Charges ..................................................... 9 Foreign Subsidiary................................................. 9 GAAP .............................................................. 9 Government Securities.............................................. 10 guarantee ......................................................... 10 Guarantee ......................................................... 10 Guarantor ......................................................... 10 Hedging Obligations................................................ 10 Holder ............................................................ 10 Indebtedness ...................................................... 11 Indenture ......................................................... 11 Independent Financial Advisor...................................... 11 Interest Payment Date.............................................. 11 Investment Grade Securities........................................ 11 Investments ....................................................... 11 Issuance Date ..................................................... 12 KKR ............................................................... 12 Lien .............................................................. 12 Management Group................................................... 12 Maturity .......................................................... 12 Merger ............................................................ 12 Moody's ........................................................... 12 Net Income ........................................................ 13 Net Proceeds ...................................................... 13 Note Register and Note Registrar................................... 13 Notes ............................................................. 13 Obligations ....................................................... 13 Officer ........................................................... 13 Officers' Certificate.............................................. 13 Opinion of Counsel................................................. 13 Outstanding ....................................................... 14 Pari Passu Indebtedness............................................ 14 Paying Agent ...................................................... 15 Permitted Holders.................................................. 15 Permitted Investments.............................................. 15 ii Page ---- Person ............................................................ 16 Predecessor Note................................................... 16 preferred stock ................................................... 16 Prospectus ........................................................ 16 Receivables Facility............................................... 16 Receivables Fees................................................... 16 Redemption Date ................................................... 16 Redemption Price................................................... 16 Regular Record Date................................................ 16 Related Parties ................................................... 16 Representative .................................................... 16 Repurchase Offer................................................... 17 Responsible Officer................................................ 17 Restricted Investment.............................................. 17 Restricted Subsidiary.............................................. 17 S&P ............................................................... 17 Securities Act .................................................... 17 Senior Credit Facility............................................. 17 Senior Indebtedness................................................ 17 Significant Subsidiary............................................. 18 Similar Business................................................... 18 Special Record Date................................................ 18 Stated Maturity ................................................... 18 Subordinated Indebtedness.......................................... 18 Subordinated Note Obligations...................................... 18 Subsidiary ........................................................ 18 Total Assets ...................................................... 19 Trust Indenture Act or TIA......................................... 19 Trustee ........................................................... 19 Unrestricted Subsidiary............................................ 19 Vice President .................................................... 20 Voting Stock ...................................................... 20 Weighted Average Life to Maturity.................................. 20 Wholly Owned Restricted Subsidiary................................. 20 Wholly Owned Subsidiary............................................ 20 SECTION 102. Compliance Certificates and Opinions...................... 20 SECTION 103. Form of Documents Delivered to Trustee.................... 21 SECTION 104. Acts of Holders........................................... 21 SECTION 105. Notices, Etc., to Trustee, the Company and any Guarantor.. 23 SECTION 106. Notice to Holders; Waiver................................. 23 SECTION 107. Effect of Headings and Table of Contents.................. 24 SECTION 108. Successors and Assigns.................................... 24 SECTION 109. Separability Clause....................................... 24 SECTION 110. Benefits of Indenture..................................... 24 SECTION 111. Governing Law............................................. 24 iii Page ---- SECTION 112. Legal Holidays............................................ 24 SECTION 113. No Personal Liability of Directors, Officers, Employees, Stockholders or Incorporators........................... 25 SECTION 114. Counterparts.............................................. 25 ARTICLE TWO NOTE FORMS SECTION 201. Forms Generally........................................... 25 SECTION 202. Legend.................................................... 26 SECTION 203. Form of Face of Note...................................... 27 SECTION 204. Form of Reverse of Note................................... 29 SECTION 205. Form of Trustee's Certificate of Authentication........... 34 ARTICLE THREE THE NOTES SECTION 301. Title and Terms........................................... 35 SECTION 302. Denominations............................................. 36 SECTION 303. Execution, Authentication, Delivery and Dating............ 36 SECTION 304. Temporary Notes........................................... 37 SECTION 305. Registration, Registration of Transfer and Exchange....... 38 SECTION 306. Book-Entry Provisions for the Global Note................. 39 SECTION 307. Mutilated, Destroyed, Lost and Stolen Notes............... 40 SECTION 308. Payment of Interest; Interest Rights Preserved............ 41 SECTION 309. Persons Deemed Owners..................................... 42 SECTION 310. Cancellation.............................................. 42 SECTION 311. Computation of Interest................................... 42 SECTION 312. CUSIP Numbers............................................. 42 ARTICLE FOUR SATISFACTION AND DISCHARGE SECTION 401. Satisfaction and Discharge of Indenture................... 43 SECTION 402. Application of Trust Money................................ 44 ARTICLE FIVE REMEDIES SECTION 501. Events of Default......................................... 45 SECTION 502. Acceleration of Maturity; Rescission and Annulment........ 46 iv Page ---- SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee................................................. 48 SECTION 504. Trustee May File Proofs of Claim.......................... 48 SECTION 505. Trustee May Enforce Claims Without Possession of Notes.... 49 SECTION 506. Application of Money Collected............................ 49 SECTION 507. Limitation on Suits....................................... 50 SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest..................................... 50 SECTION 509. Restoration of Rights and Remedies........................ 51 SECTION 510. Rights and Remedies Cumulative............................ 51 SECTION 511. Delay or Omission Not Waiver.............................. 51 SECTION 512. Control by Holders........................................ 51 SECTION 513. Waiver of Past Defaults................................... 52 SECTION 514. Waiver of Stay or Extension Laws.......................... 52 SECTION 515. Undertaking for Costs..................................... 52 ARTICLE SIX THE TRUSTEE SECTION 601. Certain Duties and Responsibilities....................... 53 SECTION 602. Notice of Defaults........................................ 54 SECTION 603. Certain Rights of Trustee................................. 54 SECTION 604. Trustee Not Responsible for Recitals or Issuance of Notes. 56 SECTION 605. May Hold Notes............................................ 56 SECTION 606. Money Held in Trust....................................... 56 SECTION 607. Compensation and Reimbursement............................ 56 SECTION 608. Corporate Trustee Required; Eligibility................... 57 SECTION 609. Resignation and Removal; Appointment of Successor......... 58 SECTION 610. Acceptance of Appointment by Successor.................... 59 SECTION 611. Merger, Conversion, Consolidation or Succession to Business................................................ 59 ARTICLE SEVEN HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY SECTION 701. Company to Furnish Trustee Names and Addresses............ 60 SECTION 702. Disclosure of Names and Addresses of Holders.............. 60 SECTION 703. Reports by Trustee........................................ 60 ARTICLE EIGHT MERGER, CONSOLIDATION, OR SALE OF ASSETS SECTION 801. Company May Consolidate, Etc., Only on Certain Terms...... 60 SECTION 802. Successor Substituted..................................... 62 v Page ---- ARTICLE NINE SUPPLEMENTS AND AMENDMENTS TO INDENTURE SECTION 901. Supplemental Indentures Without Consent of Holders........ 62 SECTION 902. Supplemental Indentures with Consent of Holders........... 63 SECTION 903. Execution of Supplemental Indentures...................... 64 SECTION 904. Effect of Supplemental Indentures......................... 64 SECTION 905. Conformity with Trust Indenture Act....................... 64 SECTION 906. Reference in Notes to Supplemental Indentures............. 65 SECTION 907. Notice of Supplemental Indentures......................... 65 SECTION 908. Effect on Senior Indebtedness............................. 65 ARTICLE TEN COVENANTS SECTION 1001. Payment of Principal, Premium, if Any, and Interest...... 65 SECTION 1002. Maintenance of Office or Agency.......................... 66 SECTION 1003. Money for Note Payments to Be Held in Trust.............. 66 SECTION 1004. Corporate Existence...................................... 68 SECTION 1005. Taxes.................................................... 68 SECTION 1006. Maintenance of Properties................................ 68 SECTION 1007. Insurance................................................ 68 SECTION 1008. Compliance with Laws..................................... 69 SECTION 1009. Limitation on Restricted Payments........................ 69 SECTION 1010. Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock...................................... 73 SECTION 1011. Liens.................................................... 77 SECTION 1012. Transactions with Affiliates............................. 77 SECTION 1013. Dividend and Other Payment Restrictions Affecting Subsidiaries............................................ 78 SECTION 1014. Limitation on Guarantees of Indebtedness by Restricted Subsidiaries............................................ 80 SECTION 1015. Limitation on Other Senior Subordinated Indebtedness..... 81 SECTION 1016. Offer to Repurchase Upon Change of Control............... 81 SECTION 1017. Asset Sales.............................................. 82 SECTION 1018. Compliance Certificate................................... 84 SECTION 1019. Reports.................................................. 85 SECTION 1020. Further Assurances....................................... 85 ARTICLE ELEVEN vi Page ---- REDEMPTION OF NOTES SECTION 1101. Redemption............................................... 86 SECTION 1102. Applicability of Article................................. 86 SECTION 1103. Election to Redeem; Notice to Trustee.................... 86 SECTION 1104. Selection by Trustee of Notes to Be Redeemed............. 86 SECTION 1105. Notice of Redemption..................................... 86 SECTION 1106. Deposit of Redemption Price.............................. 88 SECTION 1107. Notes Payable on Redemption Date......................... 88 SECTION 1108. Notes Redeemed in Part................................... 88 ARTICLE TWELVE LEGAL DEFEASANCE AND COVENANT DEFEASANCE SECTION 1201. Company's Option to Effect Legal Defeasance or Covenant Defeasance.............................................. 89 SECTION 1202. Legal Defeasance and Discharge........................... 89 SECTION 1203. Covenant Defeasance...................................... 89 SECTION 1204. Conditions to Legal Defeasance or Covenant Defeasance.... 90 SECTION 1205. Deposited Money and U.S. Government Securities to Be Held in Trust; Other Miscellaneous Provisions................... 91 SECTION 1206. Reinstatement............................................ 92 ARTICLE THIRTEEN SUBORDINATION OF NOTES SECTION 1301. Notes Subordinate to Senior Indebtedness................. 92 SECTION 1302. Payment over of Proceeds upon Dissolution, Etc........... 92 SECTION 1303. Suspension of Payment When Senior Indebtedness in Default 93 SECTION 1304. Acceleration of Notes.................................... 94 SECTION 1305. When Distribution Must Be Paid Over...................... 94 SECTION 1306. Notice by Company........................................ 95 SECTION 1307. Payment Permitted If No Default.......................... 95 SECTION 1308. Subrogation to Rights of Holders of Senior Indebtedness.. 95 SECTION 1309. Provisions Solely to Define Relative Rights.............. 96 SECTION 1310. Trustee to Effectuate Subordination...................... 96 SECTION 1311. Subordination May Not Be Impaired by Company............. 96 SECTION 1312. Distribution or Notice to Representative................. 96 SECTION 1313. Notice to Trustee........................................ 97 SECTION 1314. Reliance on Judicial Order or Certificate of Liquidating Agent................................................... 97 SECTION 1315. Rights of Trustee as a Holder of Senior Indebtedness; Preservation of Trustees' Rights........................ 98 SECTION 1316. Article Applicable to Paying Agents...................... 98 vii Page ---- SECTION 1317. No Suspension of Remedies................................ 98 SECTION 1318. Modification of Terms of Senior Indebtedness............. 98 SECTION 1319. Certain Terms............................................ 99 SECTION 1320. Trust Moneys Not Subordinated............................ 99 viii INDENTURE, dated as of May 15, 1997, between AMPHENOL CORPORATION, a corporation duly organized and existing under the laws of the State of Delaware (the "Company"), having its principal office at 358 Hall Avenue, Wallingford, Connecticut 06492, and IBJ Schroder Bank & Trust Company, a New York banking corporation, as trustee (the "Trustee"). RECITALS OF THE COMPANY The Company has duly authorized the creation of and issuance of its 97/8 Senior Subordinated Notes due May 2007 (the "Notes") of substantially the tenor and amount hereinafter set forth, and to provide therefor the Company has duly authorized the execution and delivery of this Indenture. This Indenture is subject to, and shall be governed by, the provisions of the Trust Indenture Act of 1939, as amended, that are required or deemed to be part of and to govern indentures qualified thereunder. All things necessary have been done to make the Notes, when executed and duly issued by the Company and authenticated and delivered hereunder by the Trustee or the Authenticating Agent, the valid obligations of the Company and to make this Indenture a valid agreement of the Company in accordance with their and its terms. NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Notes, as follows: ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION SECTION 101. Definitions. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires: (a) the terms defined in this Article have the meanings assigned to them in this Article, and words in the singular include the plural as well as the singular, and words in the plural include the singular as well as the plural; (b) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, or defined by Commission rule and not otherwise defined herein have the meanings assigned to them therein, and the terms "cash 2 transaction" and "self-liquidating paper", as used in TIA Section 311, shall have the meanings assigned to them in the rules of the Commission adopted under the Trust Indenture Act; (c) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with Generally Accepted Accounting Principles; (d) the words "herein," "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; (e) the word "or" is not exclusive; and (f) provisions of this Indenture apply to successive events and transactions. Certain terms, used principally in Articles Two, Ten, Twelve and Thirteen, are defined in those Articles. "Acquired Indebtedness" means, with respect to any specified Person, (i) Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Restricted Subsidiary of such specified Person, including, without limitation, Indebtedness incurred in connection with, or in contemplation of, such other Person merging with or into or becoming a Restricted Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person. "Act," when used with respect to any Holder, has the meaning set forth in Section 104. "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, "control" (including, with correlative meanings, the terms "controlling," "controlled by" and "under common control with"), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise; provided, however, that beneficial ownership of 10% or more of the voting securities of a Person shall be deemed to be control. "Agent" means any Paying Agent, Authenticating Agent and Note Registrar under this Indenture. "Asset Sale" means (i) the sale, conveyance, transfer or other disposition (whether in a single transaction or a series of related transactions) of property or assets (including by way of a sale and leaseback) of the Company or any Restricted Subsidiary (each referred to in this definition as a "disposition") or (ii) the issuance or sale of Equity Interests of any Restricted Subsidiary (whether in a single transaction or a series of related transactions), in each case, other than: (a) a disposition of Cash Equivalents or Investment Grade Securities or obsolete equipment in the ordinary course of business; (b) the disposition of all or substantially all of the assets of the Company in a manner permitted pursuant to the provisions of Section 801 hereof or any disposition that constitutes a Change of Control pursuant to this Indenture; (c) any Restricted Payment that is permitted to be made, and is made, under the first paragraph of Section 1009 hereof; (d) any disposition of assets with an aggregate fair market 3 value of less than $1.0 million; (e) any disposition of property or assets by a Restricted Subsidiary to the Company or by the Company or a Restricted Subsidiary to a Wholly Owned Restricted Subsidiary; (f) any exchange of like property pursuant to Section 1031 of the Internal Revenue Code of 1986, as amended, for use in a Similar Business; (g) any financing transaction with respect to property built or acquired by the Company or any Restricted Subsidiary after the Issuance Date including, without limitation, sale-leasebacks and asset securitizations; (h) foreclosures on assets; (i) sales of accounts receivable, or participations therein, in connection with any Receivables Facility; and (j) any sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary. "Authenticating Agent" means the Person appointed, if any, by the Trustee as an authenticating agent pursuant to the last paragraph of Section 303. "Bank Agent" means Bankers Trust Company, in its capacity as administrative agent under the Senior Credit Facility, and any successor administrative agent thereunder. "Bankruptcy Law" means Title 11, United States Bankruptcy Code of 1978, as amended, or any similar United States federal or state or foreign law relating to bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization or relief of debtors or any amendment to, succession to or change in any such law. "Board of Directors" means, with respect to any Person, either the board of directors of such Person or any duly authorized committee thereof. "Board Resolution" means, with respect to any Person, a copy of a resolution certified by the Secretary or an Assistant Secretary of such Person to have been duly adopted by the Board of Directors of such Person and to be in full force and effect on the date of such certification, and delivered to the Trustee. "Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in The City of New York are authorized or obligated by law or executive order to close. "Capital Stock" means (i) in the case of a corporation, corporate stock, (ii) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock, (iii) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited) and (iv) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person. "Capitalized Lease Obligation" means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) in accordance with GAAP. "Cash Equivalents" means (i) U.S. dollars, (ii) securities issued or directly and fully guaranteed or insured by the U.S. Government or any agency or instrumentality thereof, 4 (iii) certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers' acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any commercial bank having capital and surplus in excess of $500.0 million, (iv) repurchase obligations for underlying securities of the types described in clauses (ii) and (iii) entered into with any financial institution meeting the qualifications specified in clause (iii) above, (v) commercial paper rated A-1 or the equivalent thereof by Moody's or S&P and in each case maturing within one year after the date of acquisition, (vi) investment funds investing 95% of their assets in securities of the types described in clauses (i)-(v) above, (vii) readily marketable direct obligations issued by any state of the United States of America or any political subdivision thereof having one of the two highest rating categories obtainable from either Moody's or S&P and (viii) Indebtedness or preferred stock issued by Persons with a rating of "A" or higher from S&P or "A2" or higher from Moody's. "Change of Control" means the occurrence of any of the following: (i) the sale, lease or transfer, in one or a series of related transactions, of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole; or (ii) the Company becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than the Permitted Holders and their Related Parties, in a single transaction or in a related series of transactions, by way of merger, consolidation or other business combination or purchase of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision) of 50% or more of the total voting power of the Voting Stock of the Company. "Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time. "Common Stock" of any Person means any and all shares, interests or other participations in, and other equivalents (however designated, whether voting or non-voting) of such Person's common stock, whether outstanding on the Issuance Date or issued after the Issuance Date and includes, without limitation, all series and class of such common stock. "Company" means the Person named as the "Company" in the first paragraph of this Indenture, until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor Person. "Company Request" or "Company Order" means a written request or order signed in the name of the Company (a) by its Chairman, a Vice-Chairman, its President or any Vice President and (b) by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary and delivered to the Trustee; provided, however, that such written request or order may be signed by any two of the officers or directors listed in clause (a) above in lieu of being 5 signed by one of such officers or directors listed in such clause (a) and one of the officers listed in clause (b) above. "Consolidated Depreciation and Amortization Expense" means with respect to any Person for any period, the total amount of depreciation and amortization expense of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP. "Consolidated Interest Expense" means, with respect to any period, the sum, without duplication, of: (a) consolidated interest expense of such Person and its Restricted Subsidiaries for such period, to the extent, such expense was deducted in computing Consolidated Net Income (including amortization of original issue discount, non-cash interest payments, the interest component of Capitalized Lease Obligations, and net payments and receipts (if any) pursuant to Hedging Obligations to the extent included in Consolidated Interest Expense, excluding amortization of deferred financing fees) and (b) consolidated capitalized interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued; provided, however, that Receivables Fees shall be deemed not to constitute Consolidated Interest Expense. "Consolidated Net Income" means, with respect to any Person for any period, the aggregate of the Net Income, of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, and otherwise determined in accordance with GAAP; provided, however, that (i) any net after-tax extraordinary gains or losses (less all fees and expenses relating thereto) shall be excluded, (ii) the Net Income for such period shall not include the cumulative effect of a change in accounting principles during such period, (iii) any net after-tax income (loss) from discontinued operations and any net after-tax gains or losses on disposal of discontinued operations shall be excluded, (iv) any net after-tax gains or losses (less all fees and expenses relating thereto) attributable to asset dispositions other than in the ordinary course of business (as determined in good faith by the Board of Directors of the Company) shall be excluded, (v) the Net Income for such period of any Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be included only to the extent of the amount of dividends or distributions or other payments paid in cash (or to the extent converted into cash) to the referent Person or a Wholly Owned Restricted Subsidiary thereof in respect of such period, (vi) the Net Income of any Person acquired in a pooling of interests transaction shall not be included for any period prior to the date of such acquisition and (vii) the Net Income for such period of any Restricted Subsidiary shall be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of its Net Income is not at the date of determination permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule, or governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restriction with respect to the payment of dividends or in similar distributions has been legally waived. "Contingent Obligations" means, with respect to any Person, any obligation of such Person guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness ("primary obligations") of any other Person (the "primary obligor") in any 6 manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, or (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof. "Corporate Trust Office" means the principal corporate trust office of the Trustee, at which at any particular time its corporate trust business shall be administered, which office at the date of execution of this Indenture is located at One State Street, New York, NY 10004, except that with respect to presentation of Notes for payment or for registration of transfer or exchange, such term shall mean any office or agency of the Trustee at which, at any particular time, its corporate agency business shall be conducted. "Credit Facilities" means, with respect to the Company, one or more debt facilities (including, without limitation, the Senior Credit Facility) or commercial paper facilities with banks or other institutional lenders providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit, in each case, as amended, restated, modified, renewed, refunded, replaced or refinanced in whole or in part from time to time. "Custodian" means any receiver, trustee, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law. "Default" means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default. "Defaulted Interest" has the meaning set forth in Section 308. "Depositary" means The Depository Trust Company, its nominees and successors. "Designated Noncash Consideration" means the fair market value of noncash consideration received by the Company or one of its Restricted Subsidiaries in connection with an Asset Sale that is so designated as Designated Noncash Consideration pursuant to an Officers' Certificate, setting forth the basis of such valuation, executed by the principal executive officer and the principal financial officer of the Company, less the amount of cash or Cash Equivalents received in connection with a sale of such Designated Noncash Consideration. "Designated Preferred Stock" means preferred stock of the Company (other than Disqualified Stock) that is issued for cash (other than to a Restricted Subsidiary) and is so designated as Designated Preferred Stock, pursuant to an Officers' Certificate executed by the principal executive officer and the principal financial officer of the Company, on the issuance 7 date thereof, the cash proceeds of which are excluded from the calculation set forth in clause (C) of paragraph (a) of Section 1009. "Designated Senior Indebtedness" means (i) Senior Indebtedness under the Senior Credit Facility and (ii) any other Senior Indebtedness permitted under this Indenture the principal amount of which is $50.0 million or more and that has been designated by the Company as Designated Senior Indebtedness. "Disqualified Stock" means, with respect to any Person, any Capital Stock of such Person which, by its terms (or by the terms of any security into which it is convertible or for which it is putable or exchangeable), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part, in each case prior to the date 91 days after the maturity date of the Notes; provided, however, that if such Capital Stock is issued to any employee or to any plan for the benefit of employees of the Company or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Company in order to satisfy applicable statutory or regulatory obligations. "EBITDA" means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period plus (a) provision for taxes based on income or profits of such Person for such period deducted in computing Consolidated Net Income, plus (b) Consolidated Interest Expense of such Person for such period and any Receivables Fees paid by such Person or any of its Restricted Subsidiaries during such period, in each case to the extent the same was deducted in calculating such Consolidated Net Income, plus (c) Consolidated Depreciation and Amortization Expense of such Person for such period to the extent such depreciation and amortization were deducted in computing Consolidated Net Income, plus (d) any expenses or charges related to any Equity Offering, Permitted Investment or Indebtedness permitted to be incurred by this Indenture (including such expenses or charges related to the Merger (including the costs of (i) the cancellation of the stock options and (ii) the retirement of the Existing Notes) and the Financings) and deducted in such period in computing Consolidated Net Income, plus (e) the amount of any restructuring charge deducted in such period in computing Consolidated Net Income, plus (f) without duplication, any other non-cash charges reducing Consolidated Net Income for such period (excluding any such charge which requires an accrual of a cash reserve for anticipated cash charges for any future period), plus (g) the amount of any minority interest expense deducted in calculating Consolidated Net Income, less, without duplication, (h) non-cash items increasing Consolidated Net Income of such Person for such period (excluding any items which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior period). "Equity Interests" means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock). "Equity Offering" means any public or private sale of common stock or preferred stock of the Company (excluding Disqualified Stock), other than (i) public offerings with 8 respect to the Company's Common Stock registered on Form S-8 and (ii) any such public or private sale that constitutes an Excluded Contribution. "Event of Default" has the meaning set forth in Section 501. "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder. "Excluded Contributions" means the net cash proceeds received by the Company after the closing of the Merger from (a) contributions to its common equity capital and (b) the sale (other than to a Subsidiary or to any Company or Subsidiary management equity plan or stock option plan or any other management or employee benefit plan or agreement) of Capital Stock (other than Disqualified Stock) of the Company, in each case designated as Excluded Contributions pursuant to an Officers' Certificate executed by the principal executive officer and the principal financial officer of the Company on the date such capital contributions are made or the date such Equity Interests are sold, as the case may be, the cash proceeds of which are excluded from the calculation set forth in paragraph (C) of Section 1009(a) hereof. "Existing Indebtedness" means Indebtedness of the Company or its Restricted Subsidiaries in existence on the Issuance Date, plus interest accruing thereon, after application of the net proceeds of the sale of the Notes as described in the Prospectus. "Existing Notes" means the Existing Senior Notes and the Company's 12 3/4% Senior Subordinated Notes due 2002. "Existing Senior Notes" means the Company's 10.45% Senior Notes due 2001. "Financings" means the financing transactions consummated on the Issuance Date in conjunction with the Merger, and consists of (a) the consummation of the Senior Credit Facility and (b) the issuance and sale of the Notes to the Underwriters. "Fixed Charge Coverage Ratio" means, with respect to any Person for any period, the ratio of EBITDA of such Person for such period to the Fixed Charges of such Person for such period. In the event that the Company or any of its Restricted Subsidiaries incurs, assumes, guarantees or redeems any Indebtedness (other than in the case of revolving credit borrowings, in which case interest expense shall be computed based upon the average daily balance of such Indebtedness during the applicable period) or issues or redeems preferred stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated but prior to the event for which the calculation of the Fixed Charge Coverage Ratio is made (the "Calculation Date"), then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such incurrence, assumption, guarantee or redemption of Indebtedness, or such issuance or redemption of preferred stock, as if the same had occurred at the beginning of the applicable four-quarter period. For purposes of making the computation referred to above, Investments, acquisitions, dispositions, mergers, consolidations and discontinued operations (as determined in accordance with GAAP) that have been made by the Company or any of its Restricted Subsidiaries during the four-quarter reference period or subsequent to such reference period and on or prior to or simultaneously with the Calculation 9 Date shall be calculated on a pro forma basis assuming that all such Investments, acquisitions, dispositions, discontinued operations, mergers and consolidations (and the reduction of any associated fixed charge obligations and the change in EBITDA resulting therefrom) had occurred on the first day of the four-quarter reference period. If since the beginning of such period any Person (that subsequently became a Restricted Subsidiary or was merged with or into the Company or any Restricted Subsidiary since the beginning of such period) shall have made any Investment, acquisition, disposition, discontinued operation, merger or consolidation that would have required adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such period as if such Investment, acquisition, disposition, discontinued operation, merger or consolidation had occurred at the beginning of the applicable four-quarter period. For purposes of this definition, whenever pro forma effect is to be given to a transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Company. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Company to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Company may designate. "Fixed Charges" means, with respect to any Person for any period, the sum of (a) Consolidated Interest Expense of such Person for such period and (b) all cash dividend payments (excluding items eliminated in consolidation) on any series of preferred stock of such Person. "Foreign Subsidiary" means a Restricted Subsidiary not organized or existing under the laws of the United States, any State thereof, the District of Columbia or any territory thereof. "GAAP" means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect on the Issuance Date. For the purposes of this Indenture, the term "consolidated" with respect to any Person shall mean such Person consolidated with its Restricted Subsidiaries, and shall not include any Unrestricted Subsidiary. "Government Securities" means securities that are (a) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged 10 or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such Government Securities or a specific payment of principal of or interest on any such Government Securities held by such custodian for the account of the holder of such depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Securities or the specific payment of principal of or interest on the Government Securities evidenced by such depository receipt. "guarantee" means a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner (including, without limitation, letters of credit and reimbursement agreements in respect thereof), of all or any part of any Indebtedness or other obligations. "Guarantee" means any guarantee of the obligations of the Company under this Indenture and the Notes by any Person in accordance with the provisions of this Indenture. When used as a verb, "Guarantee" shall have a corresponding meaning. No Guarantees will be issued in connection with the initial offering and sale of the Notes. "Guarantor" means any Person that incurs a Guarantee; provided that upon the release and discharge of such Person from its Guarantee in accordance with this Indenture, such Person shall cease to be a Guarantor. No Guarantees will be issued in connection with the initial offering and sale of the Notes. "Hedging Obligations" means, with respect to any Person, the obligations of such Person under (i) currency exchange or interest rate swap agreements, currency exchange or interest rate cap agreements and currency exchange or interest rate collar agreements and (ii) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange or interest rates. "Holder" means the Person in whose name a Note is registered in the Note Register. "Indebtedness" means, with respect to any Person, (a) any indebtedness of such Person, whether or not contingent (i) in respect of borrowed money, (ii) evidenced by bonds, notes, debentures or similar instruments or letters of credit or bankers' acceptances (or, without double counting, reimbursement agreements in respect thereof), (iii) representing the balance deferred and unpaid of the purchase price of any property (including Capitalized Lease Obligations), except any such balance that constitutes a trade payable or similar obligation to a trade creditor, in each case accrued in the ordinary course of business or (iv) representing any Hedging Obligations, if and to the extent of any of the foregoing Indebtedness (other than letters of credit and Hedging Obligations) that would appear as a liability upon a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP, (b) to the 11 extent not otherwise included, any obligation by such Person to be liable for, or to pay, as obligor, guarantor or otherwise, on the Indebtedness of another Person (other than by endorsement of negotiable instruments for collection in the ordinary course of business) and (c) to the extent not otherwise included, Indebtedness of another Person secured by a Lien on any asset owned by such Person (whether or not such Indebtedness is assumed by such Person); provided, however, that Contingent Obligations incurred in the ordinary course of business shall be deemed not to constitute Indebtedness and obligations under or in respect of Receivables Facilities shall not be deemed to constitute Indebtedness of a Person. "Indenture" means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof. "Independent Financial Advisor" means an accounting, appraisal, investment banking firm or consultant to Persons engaged in Similar Businesses of nationally recognized standing that is, in the judgment of the Company's Board of Directors, as evidenced by a Board Resolution, qualified to perform the task for which it has been engaged. "Interest Payment Date" means the Stated Maturity of an installment of interest on the Notes. "Investment Grade Securities" means (i) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (other than Cash Equivalents), (ii) debt securities or debt instruments with a rating of BBB- or higher by S&P or Baa3 or higher by Moody's or the equivalent of such rating by such rating organization, or, if no rating of S&P or Moody's then exists, the equivalent of such rating by any other nationally recognized securities rating agency, but excluding any debt securities or instruments constituting loans or advances among the Company and its Subsidiaries, and (iii) investments in any fund that invests exclusively in investments of the type described in clauses (i) and (ii) which fund may also hold immaterial amounts of cash pending investment and/or distribution. "Investments" means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of loans (including guarantees), advances or capital contributions (excluding advances to customers, commission, travel and similar advances to officers and employees made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities issued by any other Person and investments that are required by GAAP to be classified on the balance sheet (excluding the footnotes thereto) of the Company in the same manner as the other investments included in this definition to the extent such transactions involve the transfer of cash or other property. For purposes of the definition of "Unrestricted Subsidiary" and Section 1009 hereof, (i) "Investments" shall include the portion (proportionate to the Company's equity interest in such Subsidiary) of the fair market value of the net assets of a Subsidiary of the Company at the time that such Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Company shall be deemed to continue to have a permanent "Investment" in an Unrestricted Subsidiary equal to an amount (if positive) equal to (x) the Company's "Investment" in such Subsidiary 12 at the time of such redesignation less (y) the portion (proportionate to the Company's equity interest in such Subsidiary) of the fair market value of the net assets of such Subsidiary at the time of such redesignation; and (ii) any property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value at the time of such transfer, in each case as determined in good faith by the Board of Directors. "Issuance Date" means the closing date for the sale and original issuance of the Notes hereunder. "KKR" means Kohlberg Kravis Roberts & Co. L.P. "Lien" means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law (including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction); provided that in no event shall an operating lease be deemed to constitute a Lien. "Management Group" means the group consisting of the Officers of the Company. "Maturity" means, with respect to any Note, the date on which any principal of such Note becomes due and payable as therein or herein provided, whether at the Stated Maturity by declaration of acceleration, call for redemption or purchase or otherwise. "Merger" means the merger between the Company and NXS Acquisition Corp., with the surviving corporation being the Company, pursuant to an agreement and plan of merger dated as of January 23, 1997 (as amended as of April 9, 1997), between the Company and NXS Acquisition Corp. "Moody's" means Moody's Investors Service, Inc., and its successors. "Net Income" means, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends. "Net Proceeds" means the aggregate cash proceeds received by the Company or any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash received upon the sale or other disposition of any Designated Noncash Consideration received in any Asset Sale), net of the direct costs relating to such Asset Sale and the sale or disposition of such Designated Noncash Consideration (including, without limitation, legal, accounting and investment banking fees, and brokerage and sales commissions), and any relocation expenses incurred as a result thereof, taxes paid or payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements related thereto), amounts required to be applied to the repayment of principal, premium (if any) and interest on Indebtedness required (other than required by clause (i) of Section 1017(b) 13 hereof) to be paid as a result of such transaction and any deduction of appropriate amounts to be provided by the Company as a reserve in accordance with GAAP against any liabilities associated with the asset disposed of in such transaction and retained by the Company after such sale or other disposition thereof, including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction. "Note Register" and "Note Registrar" have the respective meanings specified in Section 305. "Notes" has the meaning stated in the first recital of this Indenture and more particularly means any Notes authenticated and delivered under this Indenture. "Obligations" means any principal, interest, penalties, fees, indemnifications, reimbursements (including, without limitation, reimbursement obligations with respect to letters of credit and banker's acceptances), damages and other liabilities payable under the documentation governing any Indebtedness. "Officer" means the Chairman of the Board, the President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer or the Secretary of the Company. "Officers' Certificate" means a certificate signed on behalf of the Company by two officers of the Company, one of whom must be the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of the Company that meets the requirements set forth in Section 102. "Opinion of Counsel" means a written opinion of counsel, which and who are reasonably acceptable to, and addressed to, the Trustee complying with the requirements of Section 102. Unless otherwise required by the TIA, such legal counsel may be an employee of or counsel to the Company or the Trustee. "Outstanding," when used with respect to Notes, means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture, except: (a) Notes theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; (b) Notes, or portions thereof, for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Notes; provided that, if such Notes are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; 14 (c) Notes, except to the extent provided in Sections 1202 and 1203, with respect to which the Company has effected defeasance and/or covenant defeasance as provided in Article Twelve; and (d) Notes in exchange for or in lieu of which other Notes (including pursuant to Section 307) have been authenticated and delivered pursuant to this Indenture, other than any such Notes in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Notes are held by a bona fide purchaser in whose hands the Notes are valid obligations of the Company; provided, however, that in determining whether the Holders of the requisite principal amount of Outstanding Notes have given any request, demand, authorization, direction, consent, notice or waiver hereunder, and for the purpose of making the calculations required by TIA Section 313, Notes owned by the Company or any other obligor upon the Notes or any Affiliate of the Company or such other obligor shall be disregarded and deemed not to be Outstanding (provided, that in connection with any offer by the Company or any obligor to purchase the Notes, Notes tendered for purchase will be deemed to be Outstanding and held by the tendering Holder until the date of purchase), except that, in determining whether the Trustee shall be protected in making such calculation or in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes which the Trustee actually knows to be so owned shall be so disregarded. Notes so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Notes and that the pledgee is not the Company or any other obligor upon the Notes or any Affiliate of the Company or such other obligor. "Pari Passu Indebtedness" means (a) with respect to the Notes, Indebtedness which ranks pari passu in right of payment to the Notes and (b) with respect to any Guarantee, Indebtedness which ranks pari passu in right of payment to such Guarantee. "Paying Agent" means any Person (including the Company acting as Paying Agent) authorized by the Company to pay the principal of (and premium, if any) or interest on any Notes on behalf of the Company. "Permitted Holders" means KKR and any of its Affiliates and the Management Group. "Permitted Investments" means (a) any Investment in the Company or any Restricted Subsidiary; (b) any Investment in cash and Cash Equivalents or Investment Grade Securities; (c) any Investment by the Company or any Restricted Subsidiary of the Company in a Person that is a Similar Business if as a result of such Investment (i) such Person becomes a Restricted Subsidiary or (ii) such Person, in one transaction or a series of related transactions, is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Company or a Restricted Subsidiary; (d) any Investment in securities or other assets not constituting cash or Cash Equivalents and received in connection with an Asset Sale made pursuant to the provisions of Section 1017 hereof or any other disposition of assets not constituting an Asset Sale; (e) any Investment existing on 15 the Issuance Date; (f) advances to employees not in excess of $10.0 million outstanding at any one time, in the aggregate; (g) any Investment acquired by the Company or any of its Restricted Subsidiaries (i) in exchange for any other Investment or accounts receivable held by the Company or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the issuer of such other Investment or accounts receivable or (ii) as a result of a foreclosure by the Company or any of its Restricted Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured Investment in default; (h) Hedging Obligations permitted under Section 1010(b)(x) hereof; (i) loans and advances to officers, directors and employees for business-related travel expenses, moving expenses and other similar expenses, in each case incurred in the ordinary course of business; (j) any Investment in a Similar Business (other than an Investment in an Unrestricted Subsidiary) having an aggregate fair market value, taken together with all other Investments made pursuant to this clause (j) that are at that time outstanding, not to exceed the greater of (x) $100.0 million or (y) 15% of Total Assets at the time of such Investment (with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (k) Investments the payment for which consists of Equity Interests of the Company (exclusive of Disqualified Stock); provided, however, that such Equity Interests will not increase the amount available for Restricted Payments under clause (C) of Section 1009(a) hereof; (l) additional Investments having an aggregate fair market value, taken together with all other Investments made pursuant to this clause (l) that are at that time outstanding, not to exceed the greater of (x) $35.0 million or (y) 5% of Total Assets at the time of such Investment (with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (m) any transaction to the extent it constitutes an investment that is permitted by and made in accordance with the provisions of Section 1012(b) hereof (except transactions described in clauses (ii) and (vi) of such paragraph); (n) any Investment by Restricted Subsidiaries in other Restricted Subsidiaries and Investments by Subsidiaries that are not Restricted Subsidiaries in other Subsidiaries that are not Restricted Subsidiaries; and (o) Investments relating to any special purpose Wholly Owned Subsidiary of the Company organized in connection with a Receivables Facility that, in the good faith determination of the Board of Directors of the Company, are necessary or advisable to effect such Receivables Facility. "Person" means any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity. "Physical Notes" means Notes issued in definitive, certificated form. "Predecessor Note" of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 307 in exchange for a mutilated security or in lieu of a lost, destroyed or stolen Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note. "preferred stock" means any Equity Interest with preferential right of payment of dividends or upon liquidation, dissolution, or winding up. 16 "Prospectus" means the prospectus dated May 13, 1997, relating to the Notes. "Receivables Facility" means one or more receivables financing facilities, as amended from time to time, pursuant to which the Company and/or any of its Restricted Subsidiaries sells its accounts receivable to a Person that is not a Restricted Subsidiary. "Receivables Fees" means distributions or payments made directly or by means of discounts with respect to any participation interests issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with, any Receivables Facility. "Redemption Date," when used with respect to any Note to be redeemed, in whole or in part, means the date fixed for such redemption by or pursuant to this Indenture. "Redemption Price," when used with respect to any Note to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture. "Regular Record Date" for the interest payable on any Interest Payment Date means the May 1 or November 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. "Related Parties" means any Person controlled by a Permitted Holder, including any partnership of which a Permitted Holder or its Affiliates is the general partner. "Representative" means (a) with respect to the Senior Credit Facility, the Bank Agent and (b) with respect to any other Senior Indebtedness, the indenture trustee or other trustee, agent or representative for the holders of such Senior Indebtedness. "Repurchase Offer" means an offer made by the Company to purchase all or any portion of a Holder's Notes pursuant to the provisions described under Sections 1016 or 1017 hereof. "Responsible Officer," when used with respect to the Trustee, means the chairman or any vice chairman of the board of directors, the chairman or any vice chairman of the executive committee of the board of directors, the chairman of the trust committee, the president, any vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any trust officer or assistant trust officer, the controller or any assistant controller or any other officer of the Trustee customarily performing functions similar to those performed by any of the above-designated officers, and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject. "Restricted Investment" means an Investment other than a Permitted Investment. "Restricted Subsidiary" means, at any time, any direct or indirect Subsidiary of the Company that is not then an Unrestricted Subsidiary; provided, however, that upon the 17 occurrence of an Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary, such Subsidiary shall be included in the definition of "Restricted Subsidiary." "S&P" means Standard and Poor's Ratings Group and its successors. "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder. "Senior Credit Facility" means that certain credit facility described in the Prospectus among the Company and the lenders from time to time party thereto, including any collateral documents, instruments and agreements executed in connection therewith, and the term Senior Credit Facility shall also include any amendments, supplements, modifications, extensions, renewals, restatements or refundings thereof and any credit facilities that replace, refund or refinance any part of the loans, other credit facilities or commitments thereunder, including any such replacement, refunding or refinancing facility that increases the amount borrowable thereunder or alters the maturity thereof, provided, however, that there shall not be more than one facility at any one time that constitutes the Senior Credit Facility and, if at any time there is more than one facility which would constitute the Senior Credit Facility, the Company will designate to the Trustee which one of such facilities will be the Senior Credit Facility for purposes of this Indenture. "Senior Indebtedness" means (i) the Obligations under the Senior Credit Facility and (ii) any other Indebtedness permitted to be incurred by the Company under the terms of this Indenture, unless the instrument under which such Indebtedness is incurred expressly provides that it is on a parity with or subordinated in right of payment to the Notes, including, with respect to (i) and (ii), interest accruing subsequent to the filing of, or which would have accrued but for the filing of, a petition for bankruptcy, whether or not such interest is an allowable claim in such bankruptcy proceeding. Notwithstanding anything to the contrary in the foregoing, Senior Indebtedness will not include (1) any liability for federal, state, local or other taxes owed or owing by the Company, (2) any obligation of the Company to any of its Subsidiaries, (3) any accounts payable or trade liabilities arising in the ordinary course of business (including instruments evidencing such liabilities) other than obligations in respect of bankers' acceptances and letters of credit under the Senior Credit Facility, (4) any Indebtedness that is incurred in violation of this Indenture, (5) Indebtedness which, when incurred and without respect to any election under Section 1111 (b) of Title 11, United States Code, is without recourse to the Company, (6) any Indebtedness, guarantee or obligation of the Company which is subordinate or junior to any other Indebtedness, guarantee or obligation of the Company, (7) Indebtedness evidenced by the Notes and (8) Capital Stock of the Company. "Significant Subsidiary" means any Subsidiary that would be a "significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the date hereof. "Similar Business" means a business, the majority of whose revenues are derived from the design, manufacture and/or marketing of electrical, electronic and fiber optic connectors, coaxial and flat-ribbon cable, and interconnect systems, or whose revenues are 18 derived from the licensing of the Amphenol name, or any business or activity that is reasonably similar thereto or a reasonable extension, development or expansion thereof or ancillary thereto. "Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 308. "Stated Maturity" when used with respect to any Note or any installment of interest thereon, means the date specified in such Note as the fixed date on which the principal of such Note or such installment of interest is due and payable, and, when used with respect to any other Indebtedness, means the date specified in the instrument governing such Indebtedness as the fixed date on which the principal of such Indebtedness, or any installment of interest thereon, is due and payable. "Subordinated Indebtedness" means (a) with respect to the Notes, any Indebtedness of the Company which is by its terms subordinated in right of payment to the Notes and (b) with respect to any Guarantee, any Indebtedness of the applicable Guarantor which is by its terms subordinated in right of payment to such Guarantee. "Subordinated Note Obligations" means any principal of, premium, if any, and interest on the Notes payable pursuant to the terms of the Notes or upon acceleration, together with and including any amounts received upon the exercise of rights of rescission or other rights of action (including claims for damages) or otherwise, to the extent relating to the purchase price of the Notes or amounts corresponding to such principal, premium, if any, or interest on the Notes. "Subsidiary" means, with respect to any Person, (i) any corporation, association, or other business entity (other than a partnership) of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time of determination owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof and (ii) any partnership, joint venture, limited liability company or similar entity of which (x) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general, special or limited partnership or otherwise and (y) such Person or any Wholly Owned Restricted Subsidiary of such Person is a controlling general partner or otherwise controls such entity. "Total Assets" means the total consolidated assets of the Company and its Restricted Subsidiaries, as shown on the most recent balance sheet (excluding the footnotes thereto) of the Company. "Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 as in force on the date as of which this Indenture was executed, except as provided in Section 905. 19 "Trustee" means the Person named as the "Trustee" in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean such successor Trustee. "Unrestricted Subsidiary" means (i) any Subsidiary of the Company which at the time of determination is an Unrestricted Subsidiary (as designated by the Board of Directors of the Company, as provided below) and (ii) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors of the Company may designate any Subsidiary of the Company (including any existing Subsidiary and any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Equity Interests of, or owns, or holds any Lien on, any property of, the Company or any Subsidiary of the Company (other than any Subsidiary of the Subsidiary to be so designated), provided that (a) any Unrestricted Subsidiary must be an entity of which shares of the capital stock or other equity interests (including partnership interests) entitled to cast at least a majority of the votes that may be cast by all shares or equity interests having ordinary voting power for the election of directors or other governing body are owned, directly or indirectly, by the Company, (b) the Company certifies that such designation complies with Section 1009 hereof and (c) each of (1) the Subsidiary to be so designated and (2) its Subsidiaries has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of the Company or any of its Restricted Subsidiaries. The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that, immediately after giving effect to such designation, (i) the Company could incur at least $1.00 of additional Indebtedness under the provisions of Section 1010(a) hereof or (ii) the Fixed Charge Coverage Ratio for the Company and its Restricted Subsidiaries would be greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such designation, in each case on a pro forma basis taking into account such designation. Any such designation by the Board of Directors shall be notified by the Company to the Trustee by promptly filing with the Trustee a copy of the board resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing provisions. "Vice President," when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title "vice president." "Voting Stock" of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person. "Weighted Average Life to Maturity" means, when applied to any Indebtedness or Disqualified Stock, as the case may be, at any date, the quotient obtained by dividing (i) the sum of the products of the number of years from the date of determination to the date of each successive scheduled principal payment of such Indebtedness or redemption or similar payment with respect to such Disqualified Stock multiplied by the amount of such payment, by (ii) the sum of all such payments. 20 "Wholly Owned Restricted Subsidiary" is any Wholly Owned Subsidiary that is a Restricted Subsidiary. "Wholly Owned Subsidiary" of any Person means a Subsidiary of such Person 100% of the outstanding Capital Stock or other ownership interests of which (other than directors' qualifying shares) shall at the time be owned by such Person or by one or more Wholly Owned Subsidiaries of such Person and one or more Wholly Owned Subsidiaries of such Person. SECTION 102. Compliance Certificates and Opinions. Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company and any Guarantor (if applicable) and any other obligor on the Notes (if applicable) shall furnish to the Trustee an Officers' Certificate in form and substance reasonably acceptable to the Trustee stating that all conditions precedent, if any, provided for in this Indenture (including any covenant compliance with which constitutes a condition precedent) relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of an Officers' Certificate and an Opinion of Counsel is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (including certificates provided pursuant to Section 1018(a)) shall include: (1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of each such individual or such firm, he or it has made such examination or investigation as is necessary to enable him or it to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. 21 SECTION 103. Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. Any certificate or opinion of an Officer of the Company, any Guarantor or other obligor on the Notes may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such Officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an Officer or Officers of the Company, any Guarantor or other obligor on the Notes stating that the information with respect to such factual matters is in the possession of the Company, any Guarantor or other obligor on the Notes unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous. Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument. SECTION 104. Acts of Holders. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 104. (b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner that the Trustee deems sufficient. 22 (c) The principal amount and serial numbers of Notes held by any Person, and the date of holding the same, shall be proved by the Note Register. (d) If the Company shall solicit from the Holders of Notes any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. Notwithstanding TIA Section 316(c), such record date shall be the record date specified in or pursuant to such Board Resolution, which shall be a date not earlier than the date 30 days prior to the first solicitation of Holders generally in connection therewith and not later than the date such solicitation is completed. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding Notes have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Notes shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date. (e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Note shall bind every future Holder of the same Note and the Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof (including in accordance with Section 307) in respect of anything done, omitted or suffered to be done by the Trustee, any Paying Agent or the Company or any Guarantor in reliance thereon, whether or not notation of such action is made upon such Note. SECTION 105. Notices, Etc., to Trustee, the Company and any Guarantor. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with, (1) the Trustee by any Holder or by the Company or any Guarantor or any other obligor on the Notes shall be sufficient for every purpose hereunder if made, given, furnished or delivered in writing and mailed, first-class postage prepaid, or delivered by recognized overnight courier, to or with the Trustee and received at its Corporate Trust Office, Attention: Corporate Trust Department, or (2) the Company or any Guarantor by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or delivered, in writing, or mailed, first-class postage prepaid, or delivered by recognized overnight courier, to the Company or such Guarantor addressed to it at the address of its principal office specified in the first paragraph of 23 this Indenture, or at any other address previously furnished in writing to the Trustee by the Company or such Guarantor. SECTION 106. Notice to Holders; Waiver. Where this Indenture provides for notice of any event to Holders by the Company or the Trustee, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at his address as it appears in the Note Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Any notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been received by such Holder, whether or not such Holder actually receives such notice. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. In case by reason of the suspension of or irregularities in regular mail service or by reason of any other cause, it shall be impracticable to mail notice of any event to Holders when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice for every purpose hereunder. SECTION 107. Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. SECTION 108. Successors and Assigns. All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not. SECTION 109. Separability Clause. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 24 SECTION 110. Benefits of Indenture. Nothing in this Indenture or in the Notes, express or implied, shall give to any Person, (other than the parties hereto, any Agent and their successors hereunder and each of the Holders and, with respect to any provisions hereof relating to the subordination of the Notes or the rights of holders of Senior Indebtedness, the holders of Senior Indebtedness) any benefit or any legal or equitable right, remedy or claim under this Indenture. SECTION 111. Governing Law. THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK EXCLUDING (TO THE GREATEST EXTENT PERMISSIBLE BY LAW) ANY RULE OF LAW THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK. SECTION 112. Legal Holidays. In any case where any Interest Payment Date, any date established for payment of Defaulted Interest pursuant to Section 308 or Redemption Date or Stated Maturity or Maturity of any Note shall not be a Business Day, then (notwithstanding any other provision of this Indenture or of the Notes) payment of principal (or premium, if any) or interest need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment Date or date established for payment of Defaulted Interest pursuant to Section 308, Redemption Date, or at the Stated Maturity or Maturity; provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date or date established for payment of Defaulted Interest pursuant to Section 308, Stated Maturity or Maturity, as the case may be, to the next succeeding Business Day. SECTION 113. No Personal Liability of Directors, Officers, Employees, Stockholders or Incorporators. No director, officer, employee, incorporator or stockholder, as such, of the Company or any Guarantor shall have any liability for any obligations of the Company or such Guarantor under the Notes, this Indenture or any Guarantee or for any claim based on, in respect of, or by reason of, such obligations or their creations. Each Holder by accepting a Note waives and releases all such liability. Such waiver and release are part of the consideration for the issuance of the Notes. SECTION 114. Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be original; but such counterparts shall together constitute but one and the same instrument. 25 ARTICLE TWO NOTE FORMS SECTION 201. Forms Generally. The Notes shall be known as the "97/8% Senior Subordinated Notes due 2007" of the Company. The Notes and the Trustee's certificate of authentication shall be in substantially the forms set forth in this Article, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such Notes, as evidenced by their execution of the Notes. Any portion of the text of any Note may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Note. Each Note shall be dated the date of its authentication. The definitive Notes shall be printed, lithographed or engraved on steel-engraved borders or may be produced in any other manner, all as determined by the officers of the Company executing such Notes, as evidenced by their execution of such Notes. Notes will be issued on the Issuance Date in the form of one or more permanent global Notes substantially in the form set forth in Sections 203 and 204 (the "Global Note") deposited with the Trustee, as custodian for the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Global Note may be represented by more than one certificate, if so required by the Depositary's rules regarding the maximum principal amount to be represented by a single certificate. SECTION 202. Legend. The Global Note shall bear the following legend on the face thereof: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER REPRESENTATIVE OF DTC AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. 26 TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 306 OF THE INDENTURE. 27 SECTION 203. Form of Face of Note. AMPHENOL CORPORATION 97/8% Senior Subordinated Note due 2007 CUSIP No. 032094AD6 No. __________ $ AMPHENOL CORPORATION, a Delaware corporation (herein called the "Company", which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co. or registered assigns, the principal sum of $_____________ U.S. dollars on May 15, 2007, at the office or agency of the Company referred to below, and to pay interest thereon on November 15, 1997 and semi-annually thereafter, on May 15 and November 15 in each year, from May 19, 1997, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, at the rate of 97/8% per annum, until the principal hereof is paid or duly provided for, and (to the extent lawful) to pay on demand interest on any overdue interest at the rate borne by the Notes from the date on which such overdue interest becomes payable to the date payment of such interest has been made or duly provided for. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on the Regular Record Date for such interest, which shall be the May 1 or November 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date, and such defaulted interest, and (to the extent lawful) interest on such defaulted interest at the rate borne by the Notes, may be paid to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Notes not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. Principal of, premium, if any, and interest on the Notes will be payable at the office or agency of the Company maintained for such purpose within the City and State of New York or at such other office or agency of the Company as may be maintained for such purpose, or at the option of the Company, payment of interest may be made by check mailed to the Holders of the Notes at their respective addresses set forth in the register of Holders of Notes or by wire transfer to an account maintained by the payee located in the United States; provided that all payments of principal, premium, interest with respect to Notes represented by one or more permanent global Notes registered in the name of or held by The Depository Trust Company or its nominee will be made by wire transfer of immediately available funds to the accounts specified by the Holders thereof. Until otherwise designated by the Company, the Company's office or agency in New York will be the office of the Trustee maintained for such purpose. 28 Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. Unless the certificate of authentication hereon has been duly executed by the Trustee or the Authenticating Agent referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose. IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal. AMPHENOL CORPORATION By ----------------------------------- Name: Title: Attest: [SEAL] - ----------------- Authorized Officer 29 SECTION 204. Form of Reverse of Note. This Note is one of a duly authorized issue of securities of the Company designated as its 97/8% Senior Subordinated Notes due 2007 (the "Notes"), limited (except as otherwise provided in the Indenture referred to below) in aggregate principal amount of $240,000,000, which may be issued under an indenture (the "Indenture") dated as of May 15, 1997 between the Company and IBJ Schroder Bank & Trust Company, as trustee (the "Trustee", which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Company, the Trustee and the Holders of the Notes, and of the terms upon which the Notes are, and are to be, authenticated and delivered. The indebtedness evidenced by the Notes is, to the extent and in the manner provided in the Indenture, subordinate and subject in right of payment to the prior payment in full of all Senior Indebtedness as defined in the Indenture, and this Note is issued subject to such provisions. Each Holder of this Note, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination as provided in the Indenture and (c) appoints the Trustee his attorney-in-fact for such purpose. On or before each payment date, the Company shall deliver or cause to be delivered to the Trustee or the Paying Agent an amount in dollars sufficient to pay the amount due on such payment date. Except as described below, the Notes will not be redeemable at the Company's option prior to May 15, 2002. From and after May 15, 2002, the Notes will be subject to redemption at any time at the option of the Company, in whole or in part, upon not less than 30 nor more than 60 days' notice, at the Redemption Prices (expressed as percentages of principal amount) set forth below, plus accrued and unpaid interest thereon, if any, to the applicable redemption date, if redeemed during the twelve-month period beginning on May 15 of each of the years indicated below: Redemption Year Price ---- ----- 2002 .............................................. 104.938% 2003............................................... 103.292% 2004 .............................................. 101.646% 2005 and thereafter ............................... 100.000% In addition, at any time or from time to time, on or prior to May 15, 2000, the Company may, at its option, redeem up to 40% of the aggregate principal amount of Notes originally issued under the Indenture on the Issuance Date at a Redemption Price equal to 109.875% of the aggregate principal amount thereof, plus accrued and unpaid interest thereon, if any, to the Redemption Date, with the net cash proceeds of one or more Equity Offerings; provided that at least 60% of the aggregate principal amount of Notes originally issued under 30 the Indenture on the Issuance Date remains outstanding immediately after the occurrence of such redemption; provided further that such redemption shall occur within 60 days of the date of the closing of any such Equity Offering. If less than all the Notes are to be redeemed pursuant to the preceding two paragraphs, the Trustee shall select the Notes or portions thereof to be redeemed in compliance with the requirements of the principal national securities exchange, if any, on which the Notes being redeemed are listed, or if the Notes are not so listed, on a pro rata basis, by lot or by such other method the Trustee shall deem fair and appropriate (and in such manner as complies with applicable legal requirements); provided that no such Notes of less than $1,000 shall be redeemed in part. In the case of any redemption of Notes, interest installments whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Notes, or one or more Predecessor Notes, of record at the close of business on the relevant Regular Record Date or Special Record Date, as the case may be, referred to on the face hereof. Notes (or portions thereof) for whose redemption and payment provision is made in accordance with the Indenture shall cease to bear interest from and after the Redemption Date. In the event of redemption or repurchase of this Note in part only, a new Note or Notes for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof. Upon the occurrence of a Change of Control, the Company will be required to make an offer to purchase all or any part (equal to $1,000 in principal amount or an integral multiple thereof) of Notes at a price in cash equal to 101% of the aggregate principal amount of the Notes thereof, plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the Indenture. Holders of Notes that are subject to an offer to purchase will receive a Change of Control Offer from the Company prior to any related Change of Control Payment Date. Under certain circumstances, in the event the Net Proceeds received by the Company from an Asset Sale, which proceeds are not used (i) to permanently reduce Obligations under the Senior Credit Facility (and to correspondingly reduce commitments with respect thereto) or other Senior Indebtedness or Pari Passu Indebtedness (provided that if the Company shall so reduce Obligations under Pari Passu Indebtedness, it will equally and ratably reduce Obligations under the Notes if the Notes are then prepayable or, if the Notes may not be then prepaid, the Company shall make an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase at 100% of the principal amount thereof the amount of Notes that would otherwise be prepaid), (ii) to make an investment in any one or more businesses, capital expenditures or acquisitions of other assets in each case, used or useful in a Similar Business and/or (iii) to make an investment in properties or assets that replace the properties and assets that are the subject of such Asset Sale, equal or exceed a specified amount, the Company will be required to make an offer to all Holders to purchase the maximum principal amount of Notes, in an integral multiple of $1,000, that may be purchased out of such amount at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date of purchase, in accordance 31 with the Indenture. Holders of Notes that are subject to any offer to purchase will receive an Asset Sale Offer from the Company prior to any related Asset Sale Purchase Date. In the case of any redemption or repurchase of Notes, interest installments whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Notes, or one or more Predecessor Notes, of record at the close of business on the relevant Regular Record Date or Special Record Date, as the case may be, referred to on the face hereof. Notes (or portions thereof) for whose redemption and payment provision is made in accordance with the Indenture shall cease to bear interest from and after the Redemption Date. If an Event of Default shall occur and be continuing, the principal of all the Notes may be declared due and payable in the manner and with the effect provided in the Indenture. The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of the Company on this Note and (b) certain restrictive covenants and the related Defaults and Events of Default, upon compliance by the Company with certain conditions set forth therein, which provisions apply to this Note. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders under the Indenture and the Notes and the Guarantees, if any, at any time by the Company and the Trustee with the consent of the Holders of a specified percentage in aggregate principal amount of the Notes at the time Outstanding. Additionally, the Indenture permits that, without notice to or consent of any Holder, the Company, any Guarantor and the Trustee together may amend or supplement the Indenture, any Guarantee or this Note (i) to cure any ambiguity, defect or inconsistency, (ii) to provide for uncertificated Notes in addition to or in place of certificated Notes, (iii) to comply with Article Eight of the Indenture, (iv) to provide for the assumption of the Company's or any Guarantor's obligations to Holders of such Notes, (v) to make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely affect the legal rights under the Indenture of any such Holder, (vi) to add covenants for the benefit of the Holders or to surrender any right or power conferred upon the Company, (vii) to comply with the requirements of the Commission in order to effect or maintain the qualification of the Indenture under the Trust Indenture Act, (viii) to evidence and provide for the acceptance of appointment under this Indenture by a successor Trustee pursuant to the requirements of Section 610, or (ix) to add a Guarantor under the Indenture. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Notes at the time Outstanding, on behalf of the Holders of all the Notes, to waive compliance by the Company with certain provisions of the Indenture the Notes and the Guarantees, if any, and certain past Defaults under the Indenture and the Notes and the Guarantees, if any, and their consequences. Any such consent or waiver by or on behalf of the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. 32 No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, any Guarantor or any other obligor on the Notes (in the event such Guarantor or other obligor is obligated to make payments in respect of the Notes), which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Note at the times, place, and rate, and in the coin or currency, herein prescribed, subject to the subordination provisions of the Indenture. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is registerable on the Note Register of the Company, upon surrender of this Note for registration of transfer at the office or agency of the Company maintained for such purpose in The City of New York, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Note Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. The Notes are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes of a different authorized denomination, as requested by the Holder surrendering the same. No service charge shall be made for any registration of transfer or exchange or redemption of Notes, but the Company may require payment of a sum sufficient to pay all documentary, stamp or similar issue or transfer taxes or other governmental charges payable in connection therewith. Prior to the time of due presentment of this Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee nor any agent shall be affected by notice to the contrary. 33 THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK EXCLUDING (TO THE GREATEST EXTENT PERMISSIBLE BY LAW) ANY RULE OF LAW THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK. Interest on this Note shall be computed on the basis of a 360-day year of twelve 30-day months. All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture. FORM OF TRANSFER NOTICE FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto Insert Taxpayer Identification No. please print or typewrite name and address including zip code of assignee the within Note and all rights thereunder, hereby irrevocably constituting and appointing attorney to transfer said Note on the books of the Company with full power of substitution in the premises. 34 OPTION OF HOLDER TO ELECT PURCHASE If you wish to have this Note purchased by the Company pursuant to Section 1016 or 1017 of the Indenture, check the applicable Box below: [ ] Section 1016 [ ] Section 1017 If you wish to have a portion of this Note purchased by the Company pursuant to Section 1016 or 1017 of the Indenture, state the amount (in original principal amount) below: $______________________. Date: Your Signature: (Sign exactly as your name appears on the other side of this Note) Signature Guarantee: SECTION 205. Form of Trustee's Certificate of Authentication. The Trustee's certificate of authentication shall be in substantially the following form: TRUSTEE'S CERTIFICATE OF AUTHENTICATION. This is one of the Notes referred to in the within-mentioned Indenture. -----------------------------, as Trustee By -------------------------- Authorized Signatory Dated: ____________________ 35 ARTICLE THREE THE NOTES SECTION 301. Title and Terms. The aggregate principal amount of Notes which may be authenticated and delivered under this Indenture is limited to $240,000,000, except for Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes pursuant to Section 304, 305, 306, 307, 906, 1015, 1017 or 1108. The Notes shall be known and designated as the "97/8% Senior Subordinated Notes due 2007" of the Company. The Stated Maturity of the Notes shall be May 15, 2007, and they shall bear interest at the rate of 97/8% per annum from May 19, 1997, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable on November 15, 1997 and semi-annually thereafter on May 15 and November 15 in each year, until the principal thereof is paid in full and to the Person in whose name the Note (or any predecessor Note) is registered at the close of business on the May 1 or November 1 next preceding such interest payment date. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months, until the principal thereof is paid or duly provided for. Interest on any overdue principal, interest (to the extent lawful) or premium, if any, shall be payable on demand. Principal of, premium, if any, and interest on the Notes will be payable at the office or agency of the Company maintained for such purpose within the City and State of New York or at such other office or agency of the Company as may be maintained for such purposes, or at the option of the Company, payment of interest may be made by check mailed to the Holders of the Notes at their respective addresses set forth in the register of Holders of Notes or by wire transfer to an account maintained by the payee located in the United States; provided that all payments of principal, premium, interest with respect to Notes represented by one or more permanent global Notes registered in the name of or held by The Depository Trust Company or its nominee will be made by wire transfer of immediately available funds to the accounts specified by the Holders thereof. Until otherwise designated by the Company, the Company's office or agency in New York will be the office of the Trustee maintained for such purpose. Holders shall have the right to require the Company to purchase their Notes, in whole or in part, in the event of a Change of Control pursuant to Section 1016. The Notes shall be subject to repurchase by the Company pursuant to an Asset Sale Offer as provided in Section 1017. The Notes shall be redeemable as provided in Article Eleven and in the Notes. 36 The Indebtedness evidenced by the Notes shall be subordinated in right of payment to Senior Indebtedness as provided in Article Thirteen. SECTION 302. Denominations. The Notes shall be issuable only in registered form without coupons and only in denominations of $1,000 and any integral multiple thereof. SECTION 303. Execution, Authentication, Delivery and Dating. The Notes shall be executed on behalf of the Company by its Chief Executive Officer or a Vice President, under its corporate seal reproduced thereon and attested by its Corporate Secretary or an Assistant Secretary. The signature of any of these officers on the Notes may be manual or facsimile signatures of the present or any future such authorized officer and may be imprinted or otherwise reproduced on the Notes. Notes bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Notes or did not hold such offices at the date of such Notes. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Notes executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Notes, directing the Trustee to authenticate the Notes and certifying that all conditions precedent to the issuance of Notes contained herein have been fully complied with, and the Trustee in accordance with such Company Order shall authenticate and deliver such Notes. The Trustee shall be entitled to receive an Officers' Certificate and an Opinion of Counsel of the Company that it may reasonably request in connection with such authentication of Notes. Such order shall specify the amount of Notes to be authenticated and the date on which the original issue of Notes is to be authenticated. Each Note shall be dated the date of its authentication. No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Note a certificate of authentication substantially in the form provided for herein duly executed by the Trustee by manual signature of an authorized signatory, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture. In case the Company or any Guarantor, pursuant to Article Eight, shall be consolidated or merged with or into any other Person or shall convey, transfer, lease or otherwise dispose of its properties and assets substantially as an entirety to any Person, and the successor Person resulting from such consolidation, or surviving such merger, or into which the Company or such Guarantor shall have been merged, or the Person which shall have received a conveyance, transfer, lease or other disposition as aforesaid, shall have executed an 37 indenture supplemental hereto with the Trustee pursuant to Article Eight, any of the Notes authenticated or delivered prior to such consolidation, merger, conveyance, transfer, lease or other disposition may, from time to time, at the request of the successor Person, be exchanged for other Notes executed in the name of the successor Person with such changes in phraseology and form as may be appropriate, but otherwise in substance of like tenor as the Notes surrendered for such exchange and of like principal amount; and the Trustee, upon Company Request of the successor Person, shall authenticate and deliver Notes as specified in such request for the purpose of such exchange. If Notes shall at any time be authenticated and delivered in any new name of a successor Person pursuant to this Section 303 in exchange or substitution for or upon registration of transfer of any Notes, such successor Person, at the option of the Holders but without expense to them, shall provide for the exchange of all Notes at the time Outstanding for Notes authenticated and delivered in such new name. The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes on behalf of the Trustee. Unless limited by the terms of such appointment, an authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as any Note Registrar or Paying Agent to deal with the Company and its Affiliates. SECTION 304. Temporary Notes. Pending the preparation of definitive Notes, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Notes which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Notes in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Notes may determine, as conclusively evidenced by their execution of such Notes. If temporary Notes are issued, the Company will cause definitive Notes to be prepared without unreasonable delay. After the preparation of definitive Notes, the temporary Notes shall be exchangeable for definitive Notes upon surrender of the temporary Notes at the office or agency of the Company designated for such purpose pursuant to Section 1002, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Notes of authorized denominations. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits under this Indenture as definitive Notes. SECTION 305. Registration, Registration of Transfer and Exchange. The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency designated pursuant to Section 1002 being herein sometimes referred to as the "Note Register") in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Notes and of transfers of Notes. The Note Register shall be in written form or 38 any other form capable of being converted into written form within a reasonable time. At all reasonable times, the Note Register shall be open to inspection by the Trustee. The Trustee is hereby initially appointed as security registrar (the Trustee in such capacity, together with any successor of the Trustee in such capacity, the "Note Registrar") for the purpose of registering Notes and transfers of Notes as herein provided. Upon surrender for registration of transfer of any Note at the office or agency of the Company designated pursuant to Section 1002, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of any authorized denomination or denominations of a like aggregate principal amount. Furthermore, any Holder of a Global Note shall, by acceptance of such Global Note, agree that transfers of beneficial interest in such Global Note may be effected only through a book-entry system maintained by the Holder of such Global Note (or its agent), and that ownership of a beneficial interest in the Note shall be required to be reflected in a book entry. At the option of the Holder, Notes may be exchanged for other Notes of any authorized denomination and of a like aggregate principal amount, upon surrender of the Notes to be exchanged at such office or agency. Whenever any Notes are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes which the Holder making the exchange is entitled to receive. All Notes issued upon any registration of transfer or exchange of Notes shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Notes surrendered upon such registration of transfer or exchange. Every Note presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Note Registrar) be duly endorsed, or be accompanied by a written instrument of transfer, in form satisfactory to the Company and the Note Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing. No service charge shall be made for any registration of transfer or exchange or redemption of Notes, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Notes, other than exchanges pursuant to Section 304, 906, 1016, 1017 or 1108, not involving any transfer. SECTION 306. Book-Entry Provisions for the Global Note. (a) The Global Note initially shall (i) be registered in the name of the Depositary for such Global Note or the nominee of such Depositary, (ii) be delivered to the Trustee as custodian for such Depositary and (iii) bear the legend as set forth in Section 202. 39 Members of, or participants in, the Depositary ("Agent Members") shall have no rights under this Indenture with respect to the Global Note held on their behalf by the Depositary, or the Trustee as its custodian, or under the Global Note, and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or shall impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any Note. (b) Transfers of the Global Note shall be limited to transfers of such Global Note in whole, but not in part, to the Depositary, its successors or their respective nominees. Interests of beneficial owners in the Global Note may be transferred in accordance with the rules and procedures of the Depositary. If required to do so pursuant to any applicable law or regulation, beneficial owners may obtain Physical Notes in exchange for their beneficial interests in the Global Note upon written request in accordance with the Depositary's and the Registrar's procedures. In addition, Physical Notes shall be transferred to all beneficial owners in exchange for their beneficial interests in the Global Note if (i) the Depositary notifies the Company that it is unwilling or unable to continue as Depositary for such Global Note or the Depositary ceases to be a clearing agency registered under the Exchange Act, at a time when the Depositary is required to be so registered in order to act as Depositary, and in each case a successor depositary is not appointed by the Company within 90 days of such notice or (ii) the Company executes and delivers to the Trustee and Note Registrar an Officers' Certificate stating that such Global Note shall be so exchangeable or (iii) an Event of Default has occurred and is continuing and the Note Registrar has received a request from the Depositary. (c) In connection with any transfer of a portion of the beneficial interest in the Global Note pursuant to subsection (b) of this Section to beneficial owners who are required to hold Physical Notes, the Note Registrar shall reflect on its books and records the date and a decrease in the principal amount of such Global Note in an amount equal to the principal amount of the beneficial interest in the Global Note to be transferred, and the Company shall execute, and the Trustee shall authenticate and deliver, one or more Physical Notes of like tenor and amount. (d) In connection with the transfer of the entire Global Note to beneficial owners pursuant to subsection (b) of this Section, such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its beneficial interest in such Global Note, an equal aggregate principal amount of Physical Notes of authorized denominations. (e) The registered holder of the Global Note may grant proxies and otherwise authorize any person, including Agent Members and persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes. 40 SECTION 307. Mutilated, Destroyed, Lost and Stolen Notes. If (i) any mutilated Note is surrendered to the Trustee, or (ii) the Company and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Note, and there is delivered to the Company, any Guarantor and the Trustee such security or indemnity, in each case, as may be required by them to save each of them harmless, then, in the absence of notice to the Company any Guarantor or the Trustee that such Note has been acquired by a bona fide purchaser, the Company shall execute and upon Company Order the Trustee shall authenticate and deliver, in exchange for any such mutilated Note or in lieu of any such destroyed, lost or stolen Note, a new Note of like tenor and principal amount, bearing a number not contemporaneously outstanding. In case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Note, pay such Note. Upon the issuance of any new Note under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) in connection therewith. Every new Note issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Company, any Guarantor and any other obligor upon the Notes, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes. SECTION 308. Payment of Interest; Interest Rights Preserved. Interest on any Note which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such Note (or one or more Predecessor Notes) is registered at the close of business on the Regular Record Date for such interest at the office or agency of the Company maintained for such purpose pursuant to Section 1002; provided, however, that each installment of interest may at the Company's option be paid by (i) mailing a check for such interest, payable to or upon the written order of the Person entitled thereto pursuant to Section 309, to the address of such Person as it appears in the Note Register or (ii) wire transfer to an account located in the United States maintained by the payee. Any interest on any Note which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the Holder 41 on the Regular Record Date by virtue of having been such Holder, and such defaulted interest and (to the extent lawful) interest on such defaulted interest at the rate borne by the Notes (such defaulted interest and interest thereon herein collectively called "Defaulted Interest") shall be paid by the Company, at its election in each case, as provided in clause (1) or (2) below: (1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Note and the date (not less than 30 days after such notice) of the proposed payment (the "Special Record Date"), and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the Special Record Date and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date, and in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given in the manner provided for in Section 106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so given, such Defaulted Interest shall be paid to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2). (2) The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee. Subject to the foregoing provisions of this Section, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note. SECTION 309. Persons Deemed Owners. Prior to the due presentment of a Note for registration of transfer, the Company, the Trustee and any agent of the Company, any Guarantor or the Trustee may treat the Person in whose name such Note is registered as the owner of such Note for the purpose of receiving 42 payment of principal of (and premium, if any) and (subject to Sections 305 and 308) interest on such Note and for all other purposes whatsoever, whether or not such Note be overdue, and none of the Company, any Guarantor, the Trustee nor any agent of the Company, any Guarantor or the Trustee shall be affected by notice to the contrary. SECTION 310. Cancellation. All Notes surrendered for payment, redemption, registration of transfer or exchange shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. If the Company shall acquire any of the Notes other than as set forth in the preceding sentence, the acquisition shall not operate as a redemption or satisfaction of the Indebtedness represented by such Notes unless and until the same are surrendered to the Trustee for cancellation pursuant to this Section 310. No Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Notes held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures unless by Company Order the Company shall direct that cancelled Notes be returned to it. SECTION 311. Computation of Interest. Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day months. SECTION 312. CUSIP Numbers. The Company in issuing Notes may use "CUSIP" numbers (if then generally in use) in addition to serial numbers; if so, the Trustee shall use such CUSIP numbers in addition to serial numbers in notices of redemption and repurchase as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such CUSIP numbers either as printed on the Notes or as contained in any notice of a redemption or repurchase and that reliance may be placed only on the serial or other identification numbers printed on the Notes, and any such redemption or repurchase shall not be affected by any defect in or omission of such CUSIP numbers. ARTICLE FOUR SATISFACTION AND DISCHARGE SECTION 401. Satisfaction and Discharge of Indenture. This Indenture shall upon Company Request cease to be of further effect (except as to surviving rights of registration of transfer or exchange of Notes expressly provided for herein or pursuant hereto) and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture when (1) either 43 (a) all such Notes theretofore authenticated and delivered (except (i) lost, stolen or destroyed Notes which have been replaced or paid as provided in Section 307 and (ii) Notes for whose payment money has theretofore been deposited in trust and thereafter repaid to the Company) have been delivered to the Trustee for cancellation; or (b) all such Notes not theretofore delivered to such Trustee for cancellation (i) have become due and payable by reason of the making of a notice of redemption or otherwise; (ii) will become due and payable at their Stated Maturity within one year; or (iii) are called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, and the Company or any Guarantor, in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire indebtedness on such Notes not theretofore delivered to the Trustee for cancellation, for principal, premium, if any and accrued interest to the date of the Stated Maturity or Redemption Date, as the case may be; (2) no Default or Event of Default with respect to this Indenture or the Notes shall have occurred and be continuing on the date of such deposit or shall occur as a result of such deposit and such deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound; (3) the Company or any Guarantor has paid or caused to be paid all sums payable hereunder by the Company or any Guarantor; (4) the Company has delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of such Notes at maturity or the Redemption Date, as the case may be; and (5) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been satisfied. 44 Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 607 and, if money shall have been deposited with the Trustee pursuant to subclause (b) of clause (1) of this Section, the provisions of Section 402 and the last paragraph of Section 1003 shall survive. SECTION 402. Application of Trust Money. Subject to the provisions of the last paragraph of Section 1003, all money deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law. If the Trustee or Paying Agent is unable to apply any money or Government Securities in accordance with Section 401 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company's and any Guarantor's obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 401; provided that if the Company has made any payment of principal of, premium, if any, or interest on any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Government Securities held by the Trustee or Paying Agent. ARTICLE FIVE REMEDIES SECTION 501. Events of Default. "Event of Default," wherever used herein, means any one of the following events (whatever the reason for such Event of Default and whether it shall be occasioned by the provisions of Article Thirteen or be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): (i) default in payment when due and payable, upon redemption, acceleration or otherwise, of principal or premium, if any, on the Notes whether or not such payment shall be prohibited by Article Thirteen; (ii) default for 30 days or more in the payment when due of interest on or with respect to the Notes whether or not such payment shall be prohibited by Article Thirteen; 45 (iii) failure by the Company or any Guarantor for 30 days after receipt of written notice given by the Trustee or the holders of at least 30% in principal amount of the Notes then Outstanding to comply with any of its other agreements in this Indenture or the Notes; (iv) default under any mortgage, indenture or instrument under which there is issued or by which there is secured or evidenced any Indebtedness for money borrowed by the Company or any of its Restricted Subsidiaries or the payment of which is guaranteed by the Company or any of its Restricted Subsidiaries (other than Indebtedness owed to the Company or a Restricted Subsidiary), whether such Indebtedness or guarantee now exists or is created after the Issuance Date, if both (A) such default either (1) results from the failure to pay any such Indebtedness at its stated final maturity (after giving effect to any applicable grace periods) or (2) relates to an obligation other than the obligation to pay principal of any such Indebtedness at its stated final maturity and results in the holder or holders of such Indebtedness causing such Indebtedness to become due prior to its stated maturity and (B) the principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness in default for failure to pay principal at stated final maturity (after giving effect to any applicable grace periods), or the maturity of which has been so accelerated, aggregate $25.0 million or more at any one time outstanding; provided, however, that any default under or acceleration of the Existing Senior Notes within the five day period commencing on the consummation of the Merger shall not be deemed a Default or Event of Default so long as all outstanding Existing Senior Notes have been repaid in full within five days of the consummation of the Merger; (v) failure by the Company or any of its Significant Subsidiaries to pay final judgments aggregating in excess of $25.0 million, which final judgments remain unpaid, undischarged and unstayed for a period of more than 60 days after such judgment becomes final, and in the event such judgment is covered by insurance, an enforcement proceeding has been commenced by any creditor upon such judgment or decree which is not promptly stayed; (vi) the Company or any of its Significant Subsidiaries pursuant to or within the meaning of Federal Bankruptcy Code: (A) commences a voluntary case; (B) consents to the entry of an order for relief against it in an involuntary case; (C) consents to the appointment of a Custodian of it or for all or substantially all of its property; (D) makes a general assignment for the benefit of its creditors, or (E) admits in writing that it is generally not paying its debts (other than debts which are the subject of a bona fide dispute) as they become due; (vii) a court of competent jurisdiction enters an order or decree under any Federal Bankruptcy Code that remains unstayed and in effect for 60 days and: (A) is for relief against the Company or any of its Significant Subsidiaries in an involuntary case; (B) appoints a Custodian of the Company or any of its Significant Subsidiaries or for all or substantially all of the property of the Company or any of its Significant Subsidiaries; or (C) orders the liquidation of the Company or any of its Significant Subsidiaries; provided that clauses (A), (B) and (C) shall not apply to an Unrestricted 46 Subsidiary, unless such action or proceeding has a material adverse effect on the interests of the Company or any Restricted Subsidiary; or (viii) any Guarantee shall for any reason cease to be in full force and effect or is declared null and void or any Responsible Officer of the Company or any Guarantor denies that it has any further liability under any Guarantee or gives notice to such effect (other than by reason of the termination of this Indenture or the release of any such Guarantee in accordance with this Indenture). The Trustee shall not be charged with knowledge of any Event of Default unless written notice thereof shall have been given to a Responsible Officer of the Trustee at the Corporate Trust Office. SECTION 502. Acceleration of Maturity; Rescission and Annulment. If any Event of Default (other than of a type specified in Section 501(vi) or 501(vii)) occurs and is continuing, the Trustee or the Holders of at least 30% in principal amount of the Outstanding Notes may declare the principal, premium, if any, interest and any other monetary obligations on all the then Outstanding Notes to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders); provided, however, that, so long as any Indebtedness permitted to be incurred pursuant to the Senior Credit Facility shall be outstanding, such acceleration shall not be effective until the earlier of (i) acceleration of any such Indebtedness under the Senior Credit Facility or (ii) five Business Days after the giving of written notice to the Company and the Bank Agent of such acceleration. Upon the effectiveness of such declaration, such principal and interest shall be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default specified in Section 501(vi) or 501(vii) occurs and is continuing, then the principal amount of all the Notes shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder. At any time after a declaration of acceleration has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter provided in this Article, the Holders of a majority in aggregate principal amount of the Notes Outstanding, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if (1) the Company has paid or deposited with the Trustee a sum sufficient to pay, (A) all overdue interest on all Outstanding Notes, (B) all unpaid principal of (and premium, if any, on) any Outstanding Notes which has become due otherwise than by such declaration of acceleration, and interest on such unpaid principal and premium at the rate borne by the Notes (for purposes of this clause (B) without duplication to amounts to be paid or deposited under clause (A) above); 47 (C) to the extent that payment of such interest is lawful, interest on overdue interest at the rate borne by the Notes; (D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; (2) all Events of Default, other than the non-payment of amounts of principal of (or premium, if any, on) or interest on Notes which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513; (3) if the rescission would not conflict with any judgment or decree; and (4) in the event of the cure or waiver of an Event of Default specified in clause (iv) of Section 501, the Trustee shall have received an Officers' Certificate and, if appropriate, an Opinion of Counsel that such Event of Default has been cured or waived. No such rescission shall affect any subsequent default or impair any right consequent thereon. Upon a determination by the Company that the Senior Credit Facility is no longer in effect, the Company shall promptly give to the Trustee written notice thereof executed by an Officer of the Company, which notice shall be countersigned by the Bank Agent. Unless and until the Trustee shall have received such written notice with respect to the Senior Credit Facility, the Trustee, subject to the TIA Sections 315(a) through 315(d), shall be entitled in all respects to assume that the Senior Credit Facility is in effect (unless a Responsible Officer of the Trustee shall have knowledge to the contrary). SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee. If an Event of Default specified in Section 501(i) or 501(ii) occurs and is continuing, the Trustee, in its own name as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any Guarantor (in accordance with the applicable Guarantee) or any other obligor upon the Notes and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company, any Guarantor or any other obligor upon the Notes, wherever situated. If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders under this Indenture or any Guarantee by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, including, seeking recourse against any Guarantor pursuant to the terms of any Guarantee, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy including, without limitation, seeking recourse against 48 any Guarantor pursuant to the terms of a Guarantee, or to enforce any other proper remedy, subject however to Section 513. No recovery of any such judgment upon any property of the Company or any Guarantor shall affect or impair any rights, powers or remedies of the Trustee or the Holders. SECTION 504. Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor, including any Guarantor, upon the Notes or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal, premium, if any, or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise, (i) to file and prove a claim for the whole amount of principal (and premium, if any) and interest owing and unpaid in respect of the Notes, to take such other actions (including participating as a member, voting or otherwise, of any official committee of creditors appointed in such matter) and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and (ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided, however, that the Trustee may, on behalf of such Holders, vote for the election of a trustee in bankruptcy or other similar official. SECTION 505. Trustee May Enforce Claims Without Possession of Notes. All rights of action and claims under this Indenture, the Notes or the Guarantees may be prosecuted and enforced by the Trustee without the possession of any of the Notes or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name and as trustee of an express trust, and any 49 recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Notes in respect of which such judgment has been recovered. SECTION 506. Application of Money Collected. Subject to Article Thirteen, any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, upon presentation of the Notes and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid: FIRST: To the payment of all amounts due the Trustee under Section 607 or otherwise pursuant to this Indenture; SECOND: To the payment of the amounts then due and unpaid for principal of (and premium, if any) and interest on the Notes in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Notes for principal (and premium, if any) and interest, respectively; and THIRD: The balance, if any, to the Person or Persons entitled thereto, including the Company or any other obligor on the Notes, as their interests may appear or as a court of competent jurisdiction may direct, provided that all sums due and owing to the Holders and the Trustee have been paid in full as required by this Indenture. SECTION 507. Limitation on Suits. No Holder of any Notes shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless (1) such Holder has previously given written notice to the Trustee of a continuing Event of Default; (2) the Holders of not less than 30% in principal amount of the Outstanding Notes shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder; (3) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; (4) the Trustee for 30 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and 50 (5) no direction inconsistent with such written request has been given to the Trustee during such 30-day period by the Holders of a majority or more in principal amount of the Outstanding Notes; it being understood and intended that no one or more Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture, any Note or any Guarantee to affect, disturb or prejudice the rights of any other Holders, or to obtain or to seek to obtain priority or preference over any other Holders or to enforce any right under this Indenture, any Note or any Guarantee, except in the manner herein provided and for the equal and ratable benefit of all the Holders. SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Note shall have the right, which is absolute and unconditional, to receive payment, as provided herein (including, if applicable, Article Eleven) and in such Note of the principal of (and premium, if any) and (subject to Section 308) interest on such Note on the respective Stated Maturities expressed in such Note (or, in the case of redemption or repurchase, on the Redemption Date or repurchase) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder. SECTION 509. Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture or any Guarantee and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, any Guarantor, any other obligor on the Notes, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted. SECTION 510. Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in the last paragraph of Section 307, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. SECTION 511. Delay or Omission Not Waiver. 51 No delay or omission of the Trustee or of any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be. SECTION 512. Control by Holders. The Holders of not less than a majority in principal amount of the Outstanding Notes shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, provided that (1) such direction shall not be in conflict with any rule of law or with this Indenture or any Guarantee, (2) the Trustee need not take any action which might involve it in personal liability or be unjustly prejudicial to the Holders not consenting; and (3) subject to the provisions of Section 315 of the Trust Indenture Act, the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. SECTION 513. Waiver of Past Defaults. Subject to Sections 508 and 902, the Holders of a majority in aggregate principal amount of the Outstanding Notes (including consents obtained in connection with a tender offer or exchange offer for the Notes) may on behalf of the Holders of all of such Notes waive any existing Default or Event of Default and its consequences under this Indenture or any Guarantee except a continuing Default or Event of Default in the payment of interest on, premium, if any, or the principal of, any such Note held by a non-consenting Holder, or in respect of a covenant or a provision which cannot be amended or modified without the consent of all Holders. In the event that any Event of Default specified in Section 501(iv) shall have occurred and be continuing, such Event of Default and all consequences thereof (including without limitation any acceleration or resulting payment default) shall be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders of the Notes, if within 20 days after such Event of Default arose (x) the Indebtedness or guarantee that is the basis for such Event of Default has been discharged, or (y) the holders thereof have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default, or (z) if the default that is the basis for such Event of Default has been cured. Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this 52 Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon. SECTION 514. Waiver of Stay or Extension Laws. The Company, the Guarantors and any other obligors upon the Notes, covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which would prohibit or forgive the Company, any Guarantor or any such obligor from paying all or any portion of the principal of, premium, if any, or interest on the Notes contemplated herein or in the Notes or which may affect the covenants or the performance of this Indenture; and each of the Company, any Guarantor and any such obligor (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted. SECTION 515. Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Note by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Notes, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest on any Note on or after the respective Stated Maturities expressed in such Note (or, in the case of redemption, on or after the Redemption Date). ARTICLE SIX THE TRUSTEE SECTION 601. Certain Duties and Responsibilities. (a) Except during the continuance of a Default or an Event of Default, (1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and 53 (2) in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions required to be delivered hereunder, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture, but not to verify the contents thereof. (b) In case a Default or an Event of Default has occurred and is continuing of which a Responsible Officer of the Trustee has actual knowledge or of which written notice of such Default or Event of Default shall have been given to the Trustee by the Company, any other obligor of the Notes or by any Holder, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. (c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that (1) this paragraph (c) shall not be construed to limit the effect of paragraph (a) of this Section; (2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; (3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of the Outstanding Notes received by the Trustee pursuant to Sections 502, 512 and 513 hereof or in exercising any trust or power conferred upon the Trustee, under this Indenture; and (4) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section. 54 SECTION 602. Notice of Defaults. Within 90 days after the occurrence of any Default hereunder, the Trustee shall transmit in the manner and to the extent provided in TIA Section 313(c), notice of such Default hereunder known to the Trustee, unless such Default shall have been cured or waived; provided, however, that, except in the case of a Default in the payment of the principal of (or premium, if any) or interest on any Note, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interest of the Holders; and provided further that in the case of any Default of the character specified in Section 501(iii) no such notice to Holders shall be given until at least 30 days after the occurrence thereof. SECTION 603. Certain Rights of Trustee. (a) Subject to the provisions of TIA Sections 315(a) through 315(d): (1) the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (2) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution; (3) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee may, in the absence of bad faith on its part, request and rely upon an Officers' Certificate or an Opinion of Counsel or both; (4) the Trustee may consult with counsel of its selection and any written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; (6) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make 55 such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney; (7) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; and (8) the Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture. (b) The Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. SECTION 604. Trustee Not Responsible for Recitals or Issuance of Notes. The recitals contained herein and in the Notes, except for the Trustee's certificates of authentication, shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Notes and shall not be responsible for any statement of any Person in this Indenture, the Notes or any statement made in connection with the sale of the Notes, provided that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Notes and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility on Form T-1 supplied to the Company are true and accurate, subject to the qualifications set forth therein. The Trustee shall not be accountable for the use or application by the Company of Notes or the proceeds thereof. SECTION 605. May Hold Notes. The Trustee, any Paying Agent, any Note Registrar, any Authenticating Agent or any other agent of the Company or of the Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes and, subject to TIA Sections 310(b) and 311, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Paying Agent, Note Registrar, Authenticating Agent or such other agent. SECTION 606. Money Held in Trust. All moneys received by the Trustee shall, until used or applied as herein provided, be held in trust hereunder for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law. The Trustee shall be 56 under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company. SECTION 607. Compensation and Reimbursement. The Company agrees: (1) to pay to the Trustee from time to time such compensation as shall be agreed to in writing between the Company and the Trustee for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel and costs and expenses of collection), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and (3) to indemnify each of the Trustee or any predecessor Trustee (and their respective directors, officers, employees and agents) for, and to hold it harmless against, any and all loss, damage, claim, liability or expense, including taxes (other than taxes based on the income of the Trustee) incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. The obligations of the Company under this Section to compensate the Trustee, to pay or reimburse the Trustee for expenses, disbursements and advances and to indemnify and hold harmless the Trustee shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture. As security for the performance of such obligations of the Company, the Trustee shall have a lien prior to the Holders of the Notes upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (and premium, if any) or interest on particular Notes. When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 501(vi) or (vii), the expenses (including the reasonable charges and expenses of its counsel) of and the compensation for such services are intended to constitute expenses of administration under any applicable federal or state bankruptcy, insolvency or other similar law. The provisions of this Section shall also apply to the Trustee in its capacity as Note Registrar and for so long as the Trustee shall remain Note Registrar. The provisions of this Section shall survive the termination of this Indenture. 57 SECTION 608. Corporate Trustee Required; Eligibility. There shall be at all times a Trustee hereunder which shall be eligible to act as Trustee under TIA Section 310(a)(1), and which shall have an office in The City of New York and shall have a combined capital and surplus of at least $50,000,000. If the Trustee does not have an office in The City of New York, the Trustee may appoint an agent in The City of New York reasonably acceptable to the Company to conduct any activities which the Trustee may be required under this Indenture to conduct in The City of New York. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of federal, state, territorial or District of Columbia supervising or examining authority, then for the purposes of this Section 608, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 608, it shall resign immediately in the manner and with the effect hereinafter specified in this Article. SECTION 609. Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of this Section. (b) The Trustee may resign at any time by giving written notice thereof to the Company. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee by written instrument executed by authority of the Board of Directors, a copy of which shall be delivered to the resigning Trustee and a copy to the successor trustee. If an instrument of acceptance required by this Section shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee. (c) The Trustee may be removed at any time by Act of the Holders of not less than a majority in principal amount of the Outstanding Notes, delivered to the Trustee and to the Company. (d) If at any time: (1) the Trustee shall fail to comply with the provisions of TIA Section 310(b) after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Note for at least six months, or (2) the Trustee shall cease to be eligible under Section 608 and shall fail to resign after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Note for at least six months, or (3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a Custodian of the Trustee or of its property shall be appointed 58 or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (i) the Company, by a Board Resolution, may remove the Trustee, or (ii) subject to TIA Section 315(e), any Holder who has been a bona fide Holder of a Note for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, the Company, by a Board Resolution, shall promptly appoint a successor Trustee. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Notes delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee and supersede the successor Trustee appointed by the Company. If no successor Trustee shall have been so appointed by the Company or the Holders and accepted appointment in the manner hereinafter provided, any Holder who has been a bona fide Holder of a Note for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee. (f) The Company shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee to the Holders of Notes in the manner provided for in Section 106. Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office. SECTION 610. Acceptance of Appointment by Successor. Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder. Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts. No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article. 59 SECTION 611. Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Notes shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor Trustee had itself authenticated such Notes. In case at that time any of the Notes shall not have been authenticated, any successor Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor Trustee. In all such cases such certificates shall have the full force and effect which this Indenture provides for the certificate of authentication of the Trustee shall have; provided, however, that the right to adopt the certificate of authentication of any predecessor Trustee or to authenticate Notes in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation. ARTICLE SEVEN HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY SECTION 701. Company to Furnish Trustee Names and Addresses. The Company will furnish or cause to be furnished to the Trustee (a) semiannually, not more than 10 days after each Regular Record Date, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders as of such Regular Record Date; and (b) at such other times as the Trustee may reasonably request in writing, within 30 days after receipt by the Company of any such request, a list of similar form and content to that in Subsection (a) hereof as of a date not more than 15 days prior to the time such list is furnished; provided, however that if and so long as the Trustee shall be the Note Registrar, no such list need be furnished. SECTION 702. Disclosure of Names and Addresses of Holders. Every Holder of Notes, by receiving and holding the same, agrees with the Company and the Trustee that none of the Company or the Trustee or any agent of either of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with TIA Section 312, regardless of the source from which such information was derived, and that the Trustee shall not be held 60 accountable by reason of mailing any material pursuant to a request made under TIA Section 312(b). SECTION 703. Reports by Trustee. To the extent required by TIA Section 313(a), within 60 days after May 15 of each year commencing with the first May 15 after the first issuance of Notes, the Trustee shall transmit to the Holders, in the manner and to the extent required by TIA Section 313(c), a brief report dated as of such May 15 if required by TIA Section 313(a). ARTICLE EIGHT MERGER, CONSOLIDATION, OR SALE OF ASSETS SECTION 801. Company May Consolidate, Etc., Only on Certain Terms. (1) The Company shall not consolidate or merge with or into or wind up into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to any Person unless (i) the Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (the Company or such Person, as the case may be, being herein called the "Successor Company"); (ii) the Successor Company (if other than the Company) expressly assumes all the obligations of the Company under this Indenture and the Notes pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee; (iii) immediately after such transaction no Default or Event of Default shall have occurred and be continuing; (iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period, (A) the Successor Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 1010(a) hereof or (B) the Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be greater than such Ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; (v) each Guarantor, if any, unless it is the other party to the transactions described above, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person's obligations under this Indenture and the Notes; and (vi) the Company shall have delivered to the Trustee an Officers' Certificate and an opinion of counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. The Successor Company shall succeed to, and be substituted for, the Company under this Indenture and the Notes. Notwithstanding the foregoing clause (iv), (a) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company and (b) the Company may merge with an Affiliate incorporated solely for the purpose of reincorporating the Company in another State of the United States so 61 long as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby. (2) Each Guarantor, if any, shall not, and the Company shall not permit a Guarantor to, consolidate or merge with or into or wind up into (whether or not such Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to any Person unless (i) such Guarantor is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Guarantor or such Person, as the case may be, being herein called the "Successor Guarantor"); (ii) the Successor Guarantor (if other than such Guarantor) expressly assumes all the obligations of such Guarantor under this Indenture and such Guarantor's Guarantee pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee; (iii) immediately after such transaction no Default or Event of Default shall have occurred and be continuing; and (iv) the Guarantor shall have delivered or caused to be delivered to the Trustee an Officers' Certificate and an opinion of counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. The Successor Guarantor shall succeed to, and be substituted for, such Guarantor under this Indenture and such Guarantor's Guarantee. SECTION 802. Successor Substituted. Upon any consolidation of the Company with or merger of the Company with or into or wind up into any other corporation or any sale, assignment, conveyance, transfer, lease or other disposition of the properties and assets of the Company substantially as an entirety to any Person in accordance with Section 801, the successor Person formed by such consolidation or into which the Company is merged or wound up or to which such sale, assignment, conveyance, transfer, lease or other disposition is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company therein, and thereafter (except in the case of a sale, assignment, transfer, lease, conveyance or other disposition) the predecessor corporation will be relieved of all further obligations and covenants under this Indenture and the Notes; provided that, solely with respect to calculating amounts described in clauses (A), (B) and (C) of paragraph (a) of Section 1009, any such surviving entity to the Company shall only be deemed to have succeeded to and be substituted for the Company with respect to periods subsequent to the effective time of such merger, consolidation, combination or transfer of assets. 62 ARTICLE NINE SUPPLEMENTS AND AMENDMENTS TO INDENTURE SECTION 901. Supplemental Indentures Without Consent of Holders. Without the consent of any Holders of Notes, the Company, any Guarantor (with respect to a Guarantee to which it is a party), when authorized by a Board Resolution, and the Trustee may amend or supplement this Indenture, any Guarantee or the Notes: (1) to cure any ambiguity, defect or inconsistency; or (2) to provide for uncertificated Notes in addition to or in place of certificated Notes; or (3) to comply with Article Eight hereof; or (4) to provide for the assumption of the Company's or any Guarantor's obligations to Holders of such Notes; or (5) to make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely affect the legal rights hereunder of any such Holder; or (6) to add covenants for the benefit of the Holders or to surrender any right or power conferred upon the Company; or (7) to comply with requirements of the Commission in order to effect or maintain the qualification of this Indenture under the Trust Indenture Act; or (8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee pursuant to the requirements of Section 610; or (9) to add a Guarantor hereunder. SECTION 902. Supplemental Indentures with Consent of Holders. With the consent of the Holders of at least a majority in principal amount of the Outstanding Notes (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes), by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of each Holder affected thereby (with respect to any Notes held by a nonconsenting Holder of the Notes): 63 (1) reduce the principal amount of the Notes whose Holders must consent to an amendment, supplement or waiver; or (2) reduce the principal of or change or have the effect of changing the Stated Maturity of any such Note or alter or waive the provisions with respect to the redemption of the Notes (other than Sections 1016 and 1017 and the defined terms used therein); or (3) reduce the rate of or change the time for payment of interest on any Note; or (4) waive a Default or Event of Default in the payment of principal of, premium, if any, or interest on the Notes (except a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of such Notes Outstanding and a waiver of the payment default that resulted from such acceleration), or in respect of a covenant or provision contained in this Indenture or any Guarantee which cannot be amended or modified without the consent of all Holders; or (5) make any Note payable in money other than that stated in such Notes; or (6) make any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders of the Notes to receive payments of principal of or premium, if any, or interest on the Notes; or (7) make any change in the foregoing amendment and waiver provisions; or (8) impair the right of any Holder of the Notes to receive payment of principal of, or interest on such Holder's Notes on or after the due dates theretofore or to institute suit for the enforcement of any payment on or with respect to such Holder's Notes; or (9) make any change in the subordination provisions of this Indenture that would adversely affect the Holders of the Notes. It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. SECTION 903. Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any 64 such supplemental indenture which affects the Trustees own rights, duties or immunities under this Indenture or otherwise. SECTION 904. Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Notes theretofore or thereafter authenticated and delivered hereunder shall be bound thereby (except as provided in Section 902). SECTION 905. Conformity with Trust Indenture Act. Every supplemental indenture executed pursuant to the Article shall conform to the requirements of the Trust Indenture Act as then in effect. SECTION 906. Reference in Notes to Supplemental Indentures. Notes authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Notes so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Notes. SECTION 907. Notice of Supplemental Indentures. Promptly after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of Section 902, the Company shall give notice thereof to the Holders of each Outstanding Note affected, in the manner provided for in Section 106, setting forth in general terms the substance of such supplemental indenture. SECTION 908. Effect on Senior Indebtedness. No supplemental indenture shall adversely affect the rights of any holders of Senior Indebtedness under Article Thirteen unless the requisite holders of each issue of Senior Indebtedness affected thereby shall have consented to such supplemental indenture. 65 ARTICLE TEN COVENANTS SECTION 1001. Payment of Principal, Premium, if Any, and Interest. The Company shall pay or cause to be paid the principal of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest shall be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest then due. SECTION 1002. Maintenance of Office or Agency. The Company shall maintain in the Borough of Manhattan, the City of New York, an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Company shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee. The Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, the City of New York for such purposes. The Company shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. The Company hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Company in accordance with Section 305. SECTION 1003. Money for Note Payments to Be Held in Trust. If the Company shall at any time act as its own Paying Agent, it will, on or before each due date of the principal of (or premium, if any) or interest on any of the Notes, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal of (or premium, if any) or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure to so act. Whenever the Company shall have one or more Paying Agents for the Notes, it will, on or before each due date of the principal of (or premium, if any) or interest on any 66 Notes, deposit with a Paying Agent a sum in same day funds (or New York Clearing House funds if such deposit is made prior to the date on which such deposit is required to be made) sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of such action or any failure to so act. The Company will cause each Paying Agent (other than the Trustee) to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will: (1) hold all sums held by it for the payment of the principal of (and premium, if any) or interest on Notes in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided; (2) give the Trustee notice of any default by the Company (or any other obligor upon the Notes) in the making of any payment of principal (and premium, if any) or interest; and (3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent. The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such sums. Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (or premium, if any) or interest on any Note and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment to the Company, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company. 67 SECTION 1004. Corporate Existence. Subject to Article Eight hereof, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect (i) its corporate existence, and the corporate, partnership or other existence of each of its Restricted Subsidiaries, in accordance with the respective organizational documents (as the same may be amended from time to time) of the Company or any such Restricted Subsidiary and (ii) the rights (charter and statutory), licenses and franchises of the Company and its Restricted Subsidiaries; provided, however, that the Company shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of its Restricted Subsidiaries, if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Restricted Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any material respect to the Holders of the Notes. SECTION 1005. Taxes. The Company shall pay, and shall cause each of its Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and governmental charges except such as are contested in good faith and by appropriate proceedings or where the failure to effect such payment is not adverse in any material respect to the Holders of the Notes. SECTION 1006. Maintenance of Properties. The Company will cause all material properties owned by the Company or any Restricted Subsidiary or used or held for use in the conduct of its business or the business of any Restricted Subsidiary to be maintained and kept in normal condition, repair and working order and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company may be necessary so that the business carried on in connection therewith may be properly conducted at all times; provided, however, that nothing in this Section shall prevent the Company or any of its Restricted Subsidiaries from discontinuing the maintenance of any of such properties if such discontinuance is, in the judgment of the Company, desirable in the conduct of its business or the business of any Restricted Subsidiary and not adverse in any material respect to the Holders. SECTION 1007. Insurance. To the extent available at commercially reasonable rates, the Company will maintain, and will cause its Subsidiaries to maintain, insurance with responsible carriers against such risks and in such amounts, and with such deductibles, retentions, self-insured amounts and co-insurance provisions, as are customarily carried by similar businesses, of similar size, including professional and general liability, property and casualty loss, workers' compensation and interruption of business insurance. 68 SECTION 1008. Compliance with Laws. The Company shall comply, and shall cause each of its Subsidiaries to comply, with all applicable statutes, rules, regulations, orders and restrictions of the United States of America, all states and municipalities thereof, and of any governmental regulatory authority, in respect of the conduct of their respective businesses and the ownership of their respective properties, except for such noncompliances as would not in the aggregate have a material adverse effect on the financial condition or results of operations of the Company and its Subsidiaries, taken as a whole. SECTION 1009. Limitation on Restricted Payments. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make any distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests, including any dividend or distribution payable in connection with any merger or consolidation (other than (A) dividends or distributions by the Company payable in Equity Interests (other than Disqualified Stock) of the Company or (B) dividends or distributions by a Restricted Subsidiary so long as, in the case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Subsidiary other than a Wholly Owned Subsidiary, the Company or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution in accordance with its Equity Interests in such class or series of securities); (ii) purchase, redeem, defease or otherwise acquire or retire for value any Equity Interests of the Company or any direct or indirect parent of the Company; (iii) make any principal payment on, or redeem, repurchase, defease or otherwise acquire or retire for value in each case, prior to any scheduled repayment, or maturity, any Subordinated Indebtedness (other than Indebtedness permitted under clauses (vii) and (ix) of Section 1010(b) hereof); or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, at the time of such Restricted Payment: (A) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; (B) immediately before and immediately after giving effect to such transaction on a pro forma basis, the Company could incur $1.00 of additional Indebtedness under the provisions of Section 1010(a) hereof; and (C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issuance Date (including Restricted Payments permitted by clauses (i), (ii) (with respect to the payment of dividends on Refunding Capital Stock pursuant to clause (B) thereof), (v) (only to the extent that amounts paid pursuant to such clause are greater than amounts that would have been paid pursuant to such clause if $5.0 million and $10.0 million were substituted in such clause for $10.0 million and $20.0 million, respectively), (vi), (ix) and (x) of the next succeeding paragraph, but excluding all other Restricted Payments permitted by the next succeeding paragraph), is less than the sum of (i) 50% 69 of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the fiscal quarter that first begins after the Issuance Date to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, in the case such Consolidated Net Income for such period is a deficit, minus 100% of such deficit), plus (ii) 100% of the aggregate net cash proceeds and the fair market value, as determined in good faith by the Board of Directors, of marketable securities received by the Company since immediately after the closing of the Merger and the Financings from the issue or sale of Equity Interests of the Company (including Refunding Capital Stock (as defined below), but excluding cash proceeds and marketable securities received from the sale of Equity Interests to members of management, directors or consultants of the Company and its Subsidiaries after the Issuance Date to the extent such amounts have been applied to Restricted Payments in accordance with clause (v) of the next succeeding paragraph and excluding Excluded Contributions) or debt securities of the Company that have been converted into such Equity Interests of the Company (other than Refunding Capital Stock (as defined below) or Equity Interests or convertible debt securities of the Company sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or debt securities that have been converted into Disqualified Stock), plus (iii) 100% of the aggregate amount of cash and marketable securities contributed to the capital of the Company following the Issuance Date (excluding Excluded Contributions), plus (iv) 100% of the aggregate amount received in cash and the fair market value of marketable securities (other than Restricted Investments) received from (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company and its Restricted Subsidiaries or (B) a dividend from, or the sale (other than to the Company or a Restricted Subsidiary) of the stock of, an Unrestricted Subsidiary (other than an Unrestricted Subsidiary the Investment in which was made by the Company or a Restricted Subsidiary pursuant to clauses (vii) or (xii) below). (b) The foregoing provisions will not prohibit: (i) the payment of any dividend within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Indenture; (ii) (A) the redemption, repurchase, retirement or other acquisition of any Equity Interests (the "Retired Capital Stock") or Subordinated Indebtedness of the Company in exchange for, or out of the proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary) of, Equity Interests of the Company (other than any Disqualified Stock) (the "Refunding Capital Stock"), and (B) if immediately prior to the retirement of Retired Capital Stock, the declaration and payment of dividends thereon was permitted under clause (vi) of this paragraph, the declaration and payment of dividends on the Refunding Capital Stock in an aggregate amount per year no greater than the aggregate amount of dividends per annum that was declarable and payable on such Retired Capital Stock immediately prior to such retirement; provided, however, that at the time of the declaration of any such dividends, no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; 70 (iii) distributions or payments of Receivables Fees; (iv) the redemption, repurchase or other acquisition or retirement of Subordinated Indebtedness of the Company made by exchange for, or out of the proceeds of the substantially concurrent sale of, new Indebtedness of the Company so long as (A) the principal amount of such new Indebtedness does not exceed the principal amount of the Subordinated Indebtedness being so redeemed, repurchased, acquired or retired for value (plus the amount of any premium required to be paid under the terms of the instrument governing the Subordinated Indebtedness being so redeemed, repurchased, acquired or retired), (B) such Indebtedness is subordinated to the Senior Indebtedness and the Notes at least to the same extent as such Subordinated Indebtedness so purchased, exchanged, redeemed, repurchased, acquired or retired for value, (C) such Indebtedness has a final scheduled maturity date equal to or later than the final scheduled maturity date of the Subordinated Indebtedness being so redeemed, repurchased, acquired or retired and (D) such Indebtedness has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Subordinated Indebtedness being so redeemed, repurchased, acquired or retired; (v) a Restricted Payment to pay for the repurchase, retirement or other acquisition or retirement for value of common Equity Interests of the Company held by any future, present or former employee, director or consultant of the Company or any Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement; provided, however, that the aggregate Restricted Payments made under this clause (v) does not exceed in any calendar year $10.0 million (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $20.0 million in any calendar year); provided further that such amount in any calendar year may be increased by an amount not to exceed (i) the cash proceeds from the sale of Equity Interests of the Company to members of management, directors or consultants of the Company and its Subsidiaries that occurs after the Issuance Date (to the extent the cash proceeds from the sale of such Equity Interest have not otherwise been applied to the payment of Restricted Payments by virtue of the preceding paragraph (C)) plus (ii) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issuance Date less (iii) the amount of any, Restricted Payments previously made pursuant to clauses (i) and (ii) of this subparagraph (v); and provided further that cancellation of Indebtedness owing to the Company from members of management of the Company or any of its Restricted Subsidiaries in connection with a repurchase of Equity Interests of the Company will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Indenture; (vi) the declaration and payment of dividends to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) issued after the Issuance Date (including, without limitation, the declaration and payment of dividends on Refunding Capital Stock in excess of the dividends declarable and payable thereon pursuant to clause (ii)); provided, however, that for the most recently ended four full fiscal quarters for which internal financial statements are available immediately 71 preceding the date of issuance of such Designated Preferred Stock, after giving effect to such issuance on a pro forma basis, the Company and its Restricted Subsidiaries would have had a Fixed Charge Coverage Ratio of at least 1.75 to 1.00; (vii) Investments in Unrestricted Subsidiaries having an aggregate fair market value, taken together with all other Investments made pursuant to this clause (vii) that are at that time outstanding, not to exceed $25.0 million at the time of such Investment (with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (viii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; (ix) the payment of dividends on the Company's Common Stock, following the first public offering of the Company's Common Stock after the Issuance Date, of up to 6% per annum of the net proceeds received by the Company in such public offering, other than public offerings with respect to the Company's Common Stock registered on Form S-8; (x) a Restricted Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Company in existence on the Issuance Date and which are not held by KKR or any of their Affiliates or the Management Group on the Issuance Date (including any Equity Interests issued in respect of such Equity Interests as a result of a stock split, recapitalization, merger, combination, consolidation or otherwise, but excluding any management equity plan or stock option plan or similar agreement), provided that the aggregate Restricted Payments made under this clause (x) shall not exceed $80.0 million, provided further that prior to the first anniversary of the consummation of the Merger, the aggregate amount of Restricted Payments made under this clause (x) shall not exceed $40.0 million, provided further that notwithstanding the foregoing proviso, the Company shall be permitted to make Restricted Payments under this clause (x) only if after giving effect thereto, the Company would be permitted to incur at least $1.00 of additional Indebtedness under the provisions of Section 1010(a) hereof; (xi) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; and (xii) other Restricted Payments in an aggregate amount not to exceed $25.0 million; provided, however, that at the time of, and after giving effect to, any Restricted Payment permitted under clauses (iv), (v), (vi), (vii), (viii), (ix), (x), (xi) and (xii), no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and provided further that for purposes of determining the aggregate amount expended for Restricted Payments in accordance with clause (C) of the immediately preceding paragraph, only the amounts expended under clauses (i), (ii) (with respect to the payment of dividends on Refunding Capital Stock pursuant to clause (b) thereof), (v) (only to the extent that amounts paid pursuant to such clause are greater than amounts that would have been paid pursuant to such clause if $5.0 million 72 and $10.0 million were substituted in such clause for $10.0 million and $20.0 million, respectively), (vi), (ix) and (x) shall be included. (c) As of the Issuance Date, all of the Company's Subsidiaries other then Amphenol Funding Corp. will be Restricted Subsidiaries. The Company will not permit any Unrestricted Subsidiary to become a Restricted Subsidiary except pursuant to the second to last sentence of the definition of "Unrestricted Subsidiary." For purposes of designating any Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so designated will be deemed to be Restricted Payments in an amount determined as set forth in the last sentence of the definition of "Investments." Such designation will only be permitted if a Restricted Payment in such amount would be permitted at such time (whether pursuant to the first paragraph of this covenant or under clause (vii) or (xi)) and if such Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. Unrestricted Subsidiaries will not be subject to any of the restrictive covenants set forth in this Indenture. SECTION 1010. Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, "incur" and collectively, an "incurrence") any Indebtedness (including Acquired Indebtedness) and that the Company will not issue any shares of Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock if the Fixed Charge Coverage Ratio for the Company's and the Restricted Subsidiaries' most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 1.75 to 1.00, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, and the application of proceeds therefrom had occurred at the beginning of such four-quarter period. (b) Section 1010(a) shall not apply to: (i) the incurrence by the Company or its Restricted Subsidiaries of Indebtedness under Credit Facilities and the issuance and creation of letters of credit and banker's acceptances thereunder (with letters of credit and banker's acceptances being deemed to have a principal amount equal to the face amount thereof) up to an aggregate principal amount of $1.0 billion outstanding at any one time; provided, however, that Indebtedness incurred by Restricted Subsidiaries pursuant to this clause (i) does not exceed $100.0 million (or the equivalent thereof in any other currency) at any one time outstanding; (ii) the incurrence by the Company of Indebtedness represented by the Notes; 73 (iii) the Existing Indebtedness (other than Indebtedness described in clauses (i) and (ii)); (iv) Indebtedness (including Capitalized Lease Obligations) incurred by the Company or any of its Restricted Subsidiaries, to finance the purchase, lease or improvement of property (real or personal) or equipment (whether through the direct purchase of assets or the Capital Stock of any Person owning such assets) in an aggregate principal amount which, when aggregated with the principal amount of all other Indebtedness then outstanding and incurred pursuant to this clause (iv) and including all Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (iv), does not exceed 10% of Total Assets; (v) Indebtedness incurred by the Company or any of its Restricted Subsidiaries constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business, including without limitation letters of credit in respect of workers' compensation claims or self-insurance, or other Indebtedness with respect to reimbursement type obligations regarding workers' compensation claims; provided, however, that upon the drawing of such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence; (vi) Indebtedness arising from agreements of the Company or a Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or a Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition; provided, however, that (A) such Indebtedness is not reflected on the balance sheet of the Company or any Restricted Subsidiary (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (A)) and (B) the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds including noncash proceeds (the fair market value of such noncash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Company and its Restricted Subsidiaries in connection with such disposition; (vii) Indebtedness of the Company to a Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note and is subordinated in right of payment to the Notes; provided further that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such Indebtedness (except to the Company or another Restricted Subsidiary) shall be deemed, in each case to be an incurrence of such Indebtedness; (viii) shares of preferred stock of a Restricted Subsidiary issued to the Company or another Restricted Subsidiary; provided that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing 74 to be a Restricted Subsidiary or any other subsequent transfer of any such shares of preferred stock (except to the Company or another Restricted Subsidiary) shall be deemed, in each case to be an issuance of shares of preferred stock; (ix) Indebtedness of a Restricted Subsidiary to the Company or another Restricted Subsidiary; provided that (A) any such Indebtedness is made pursuant to an intercompany note and (B) if a Guarantor incurs such Indebtedness from a Restricted Subsidiary that is not a Guarantor such Indebtedness is subordinated in right of payment to the Guarantee of such Guarantor; provided further that any subsequent transfer of any such Indebtedness (except to the Company or another Restricted Subsidiary) shall be deemed, in each case to be an incurrence of such Indebtedness; (x) Hedging Obligations that are incurred in the ordinary course of business (A) for the purpose of fixing or hedging interest rate risk with respect to any Indebtedness that is permitted by the terms of this Indenture to be outstanding or (B) for the purpose of fixing or hedging currency exchange rate risk with respect to any currency exchanges; (xi) obligations in respect of performance and surety bonds and completion guarantees provided by the Company or any Restricted Subsidiary in the ordinary course of business; (xii) Indebtedness of any Guarantor in respect of such Guarantor's Guarantee; (xiii) Indebtedness of the Company and any of its Restricted Subsidiaries not otherwise permitted hereunder in an aggregate principal amount, which when aggregated with the principal amount of all other Indebtedness then outstanding and incurred pursuant to this clause (xiii), does not exceed $200.0 million at any one time outstanding; provided, however, that (A) Indebtedness of Foreign Subsidiaries, which when aggregated with the principal amount of all other Indebtedness of Foreign Subsidiaries then outstanding and incurred pursuant to this clause (xiii), does not exceed $100.0 million (or the equivalent thereof in any other currency) at any one time outstanding and (B) Indebtedness of a Restricted Subsidiary organized under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, which when aggregated with the principal amount of all other Indebtedness of such Restricted Subsidiaries then outstanding and incurred pursuant to this clause (xiii), does not exceed $100.0 million at any one time outstanding; (xiv) (A) any guarantee by the Company of Indebtedness or other obligations of any of its Restricted Subsidiaries so long as the incurrence of such Indebtedness incurred by such Restricted Subsidiary is permitted under the terms of this Indenture and (B) any Excluded Guarantee (as defined in Section 1014 hereof) of a Restricted Subsidiary; (xv) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness which serves to refund, refinance or restructure any Indebtedness incurred as permitted under the first paragraph of this covenant and clauses (ii) and (iii) above, or any Indebtedness issued to so refund, refinance or restructure such Indebtedness including additional Indebtedness incurred to pay premiums and fees in connection 75 therewith (the "Refinancing Indebtedness") prior to its respective maturity; provided, however, that such Refinancing Indebtedness (A) has a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is incurred which is not less than the remaining Weighted Average Life to Maturity of Indebtedness being refunded or refinanced, (B) to the extent such Refinancing Indebtedness refinances Indebtedness subordinated or pari passu to the Notes, such Refinancing Indebtedness is subordinated or pari passu to the Notes at least to the same extent as the Indebtedness being refinanced or refunded and (C) shall not include (x) Indebtedness of a Subsidiary that refinances Indebtedness of the Company or (y) Indebtedness of the Company or a Restricted Subsidiary that refinances Indebtedness of an Unrestricted Subsidiary; and provided further that subclauses (A) and (B) of this clause (xv) will not apply to any refunding or refinancing of any Senior Indebtedness; and (xvi) Indebtedness or Disqualified Stock of Persons that are acquired by the Company or any of its Restricted Subsidiaries or merged into a Restricted Subsidiary in accordance with the terms of this Indenture; provided that such Indebtedness or Disqualified Stock is not incurred in contemplation of such acquisition or merger; and provided further that after giving effect to such acquisition, either (A) the Company would be permitted to incur at least $1.00 of additional Indebtedness under the provisions of Section 1010(a) or (B) the Fixed Charge Coverage Ratio is greater than immediately prior to such acquisition. For purposes of determining compliance with this covenant, in the event that an item of Indebtedness meets the criteria of more than one of the categories of permitted Indebtedness described in clauses (i) through (xvi) above or is entitled to be incurred pursuant to the first paragraph of this covenant, the Company shall, in its sole discretion, classify such item of Indebtedness in any manner that complies with this covenant and such item of Indebtedness will be treated as having been incurred pursuant to only one of such clauses or pursuant to the first paragraph hereof. Accrual of interest, the accretion of accreted value and the payment of interest in the form of additional Indebtedness will not be deemed to be an incurrence of Indebtedness for purposes of this Section 1010. SECTION 1011. Liens. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly create, incur, assume or suffer to exist any Lien that secures obligations under any Pari Passu Indebtedness or Subordinated Indebtedness on any asset or property of the Company or such Restricted Subsidiary, or any income or profits therefrom, or assign or convey any right to receive income therefrom, unless the Notes are equally and ratably secured with the obligations so secured or until such time as such obligations are no longer secured by a Lien. (b) No Guarantor shall directly or indirectly create, incur, assume or suffer to exist any Lien that secures obligations under any Pari Passu Indebtedness or Subordinated Indebtedness of such Guarantor on any asset or property of such Guarantor or any income or profits therefrom, or assign or convey any right to receive income therefrom, unless the 76 Guarantee of such Guarantor is equally and ratably secured with the obligations so secured or until such time as such obligations are no longer secured by a Lien. (c) Any Lien created, incurred or existing in respect of unfunded pension obligations or any similar obligations of the Company or any of its Restricted Subsidiaries or any Guarantor shall not be deemed to give rise to any obligations under this Section 1011. SECTION 1012. Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (each of the foregoing, an "Affiliate Transaction") involving aggregate consideration in excess of $5.0 million, unless (i) such Affiliate Transaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person and (ii) the Company delivers to the Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 million, a resolution adopted by the majority of the Board of Directors approving such Affiliate Transaction and set forth in an Officers' Certificate certifying that such Affiliate Transaction complies with clause (i) above. (b) Notwithstanding Section 1012(a), this Section 1012 shall not apply to the following: (i) transactions between or among the Company and/or any of its Restricted Subsidiaries; (ii) Restricted Payments permitted by Section 1009 hereof; (iii) the payment of customary annual management, consulting and advisory fees and related expenses to KKR and its Affiliates; (iv) the payment of reasonable and customary fees paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Restricted Subsidiary; (v) payments by the Company or any of its Restricted Subsidiaries to KKR and its Affiliates made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures which payments are approved by a majority of the Board of Directors of the Company in good faith; (vi) transactions in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or meets the requirements of clause (i) of the preceding paragraph; (vii) payments or loans to employees or consultants which are approved by a majority of the Board of Directors of the Company in good faith; (viii) any agreement as in effect as of the Issuance Date or any amendment thereto (so long as any such amendment is not disadvantageous to the Holders of the Notes in any material respect) or any transaction contemplated thereby; (ix) the existence of, or the performance by the Company or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issuance Date and any similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by the Company or any of its Restricted Subsidiaries of obligations under any future amendment to any such 77 existing agreement or under any similar agreement entered into after the Issuance Date shall only be permitted by this clause (ix) to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the Holders of the Notes in any material respect; (x) the payment of all fees and expenses related to the Merger and the Financings; (xi) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture which are fair to the Company or its Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Company or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party; and (xii) sales of accounts receivable, or participations therein, in connection with any Receivables Facility. SECTION 1013. Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to: (a)(i) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (1) on its Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; (b) make loans or advances to the Company or any of its Restricted Subsidiaries; or (c) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries; except (in each case) for such encumbrances or restrictions existing under or by reason of: (1) contractual encumbrances or restrictions in effect on the Issuance Date, including pursuant to the Senior Credit Facility and its related documentation; (2) this Indenture and the Notes; (3) purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquired; (4) applicable law or any applicable rule, regulation or order; (5) any agreement or other instrument of a Person acquired by the Company or any Restricted Subsidiary in existence at the time of such acquisition (but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; (6) contracts for the sale of assets, including, without limitation customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary; 78 (7) secured Indebtedness otherwise permitted to be incurred pursuant to Sections 1010 and 1011 hereof that limit the right of the debtor to dispose of the assets securing such Indebtedness; (8) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; (9) other Indebtedness of Restricted Subsidiaries permitted to be incurred subsequent to the Issuance Date pursuant to the provisions of Section 1010 hereof; (10) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business; (11) customary provisions contained in leases and other agreements entered into in the ordinary course of business; (12) restrictions created in connection with any Receivables Facility that, in the good faith determination of the Board of Directors of the Company, are necessary or advisable to effect such Receivables Facility; or (13) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (11) above, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company's Board of Directors, no more restrictive with respect to such dividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. SECTION 1014. Limitation on Guarantees of Indebtedness by Restricted Subsidiaries. (a) The Company shall not permit any Restricted Subsidiary to guarantee the payment of any Indebtedness of the Company or any Indebtedness of any other Restricted Subsidiary unless (i) such Restricted Subsidiary simultaneously executes and delivers a supplemental indenture to this Indenture providing for a Guarantee of payment of the Notes by such Restricted Subsidiary except that (A) if the Notes are subordinated in right of payment to such Indebtedness, the Guarantee under the supplemental indenture shall be subordinated to such Restricted Subsidiary's guarantee with respect to such Indebtedness substantially to the same extent as the Notes are subordinated to such Indebtedness under this Indenture and (B) if such Indebtedness is by its express terms subordinated in right of payment to the Notes, any such guarantee of such Restricted Subsidiary with respect to such Indebtedness shall be subordinated in right of payment to such Restricted Subsidiary's Guarantee with respect to the Notes substantially to the same extent as such Indebtedness is subordinated to the Notes; (ii) such Restricted Subsidiary waives and will not in any manner whatsoever claim or take the 79 benefit or advantage of, any rights of reimbursement, indemnity or subrogation or any other rights against the Company or any other Restricted Subsidiary as a result of any payment by such Restricted Subsidiary under its Guarantee; and (iii) such Restricted Subsidiary shall deliver to the Trustee an opinion of counsel to the effect that (A) such Guarantee of the Notes has been duly executed and authorized and (B) such Guarantee of the Notes constitutes a valid, binding and enforceable obligation of such Restricted Subsidiary, except insofar as enforcement thereof may be limited by bankruptcy, insolvency or similar laws (including, without limitation, all laws relating to fraudulent transfers) and except insofar as enforcement thereof is subject to general principles of equity; provided that this paragraph (a) shall not be applicable to any guarantee of any Restricted Subsidiary (x) that (A) existed at the time such Person became a Restricted Subsidiary of the Company and (B) was not incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary of the Company or (y) that guarantees the payment of Obligations of the Company or any Restricted Subsidiary under the Senior Credit Facility or any other bank facility which is designated as Senior Indebtedness and any refunding, refinancing or replacement thereof, in whole or in part, provided that such refunding, refinancing or replacement thereof constitutes Senior Indebtedness and is not incurred pursuant to a registered offering of securities under the Securities Act or a private placement of securities (including under Rule 144A) pursuant to an exemption from the registration requirements of the Securities Act, which private placement provides for registration rights under the Securities Act (any guarantee excluded by operations of this clause (y) being an "Excluded Guarantee"). (b) Notwithstanding the foregoing and the other provisions herein, any Guarantee by a Restricted Subsidiary of the Notes shall provide by its terms that it shall be automatically and unconditionally released and discharged upon (i) any sale, exchange or transfer, to any Person not an Affiliate of the Company, of all of the Company's Capital Stock in, or all or substantially all the assets of, such Restricted Subsidiary (which sale, exchange or transfer is not prohibited by this Indenture) or (ii) the release or discharge of the guarantee which resulted in the creation of such Guarantee, except a discharge or release by or as a result of payment under such guarantee. SECTION 1015. Limitation on Other Senior Subordinated Indebtedness. The Company shall not, and shall not permit any Guarantor to, directly or indirectly, incur any Indebtedness (including Acquired Indebtedness) that is subordinate in right of payment to any Indebtedness of the Company or any Indebtedness of any Guarantor, as the case may be, unless such Indebtedness is either (a) pari passu in right of payment with the Notes or such Guarantor's Guarantee, as the case may be or (b) subordinate in right of payment to the Notes, or such Guarantor's Guarantee, as the case may be, in the same manner and at least to the same extent as the Notes are subordinate to Senior Indebtedness or such Guarantor's Guarantee is subordinate to such Guarantor's Senior Indebtedness, as the case may be. SECTION 1016. Offer to Repurchase Upon Change of Control. (a) Upon the occurrence of a Change of Control, the Company shall make an offer to purchase all or any part (equal to $1,000 or an integral multiple thereof) of the 80 Notes pursuant to the offer described below (the "Change of Control Offer") at a price in cash (the "Change of Control Payment") equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase. Within 30 days following any Change of Control, the Company shall mail a notice to each Holder of Notes issued hereunder in the manner set forth in Section 106, with a copy to the Trustee, with the following information: (1) a Change of Control Offer is being made pursuant to this Section 1016, and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment; (2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed, except as may be otherwise required by applicable law (the "Change of Control Payment Date"); (3) any Note not properly tendered will remain outstanding and continue to accrue interest; (4) unless the Company defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest on the Change of Control Payment Date; (5) Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender the Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Notes completed, to the paying agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date; (6) Holders will be entitled to withdraw their tendered Notes and their election to require the Company to purchase such Notes, provided that the paying agent receives, not later than the close of business on the last day of the offer period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing his tendered Notes and his election to have such Notes purchased; and (7) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. (b) Prior to complying with the provisions of this Section 1016, but in any event within 30 days following a Change of Control, the Company shall either repay all outstanding Senior Indebtedness or obtain the requisite consents, if any, under any outstanding Senior Indebtedness to permit the repurchase of the Notes required by this Section 1016. (c) On the Change of Control Payment Date, the Company shall, to the extent permitted by law, (1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer, (2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered and (3) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officers' Certificate stating that such Notes or portions thereof have been tendered to and purchased by the Company. The Paying Agent shall promptly mail to each Holder of Notes the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any, provided, that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. 81 (d) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent that such laws or regulations are applicable in connection with the repurchase of Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described herein by virtue thereof. SECTION 1017. Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, cause, make or suffer to exist an Asset Sale, unless (x) the Company, or its Restricted Subsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Company) of the assets sold or otherwise disposed of and (y) at least 75% of the consideration therefor received by the Company, or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of (A) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes), that are assumed by the transferee of any such assets, (B) any notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of such Asset Sale and (C) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed 15% of Total Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be cash for purposes of this provision and for no other purpose. (b) Within 365 days after the Company's or any Restricted Subsidiary's receipt of the Net Proceeds of any Asset Sale, the Company or such Restricted Subsidiary may apply the Net Proceeds from such Asset Sale, at its option, (i) to permanently reduce Obligations under the Senior Credit Facility (and to correspondingly reduce commitments with respect thereto) or other Senior Indebtedness or Pari Passu Indebtedness (provided that if the Company shall so reduce Obligations under Pari Passu Indebtedness, it will equally and ratably reduce Obligations under the Notes if the Notes are then prepayable or, if the Notes may not be then prepaid, the Company shall make an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase at 100% of the principal amount thereof the amount of Notes that would otherwise be prepaid), (ii) to an investment in any one or more businesses, capital expenditures or acquisitions of other assets in each case, used or useful in a Similar Business and/or (iii) to make an investment in properties or assets that replace the properties and assets that are the subject of such Asset Sale. Pending the final application of any such Net Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest 82 such Net Proceeds in Cash Equivalents or Investment Grade Securities. Any Net Proceeds from the Asset Sale that are not invested as provided and within the time period set forth in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $15.0 million, the Company shall make an offer to all Holders of Notes (an "Asset Sale Offer") to purchase the maximum principal amount of Notes, that is an integral multiple of $1,000, that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date fixed for the closing of such offer (the "Offered Price"). The Company shall commence an Asset Sale Offer with respect to Excess Proceeds within 10 Business Days after the date on which the aggregate amount of Excess Proceeds exceeds $15.0 million by giving to each Holder of the Notes, with a copy to the Trustee, in the manner provided in Section 106 a notice stating: (i) that the Holder has the right to require the Company to repurchase such Holder's Notes at the Offered Price, subject to proration in the event the Excess Proceeds are less than the aggregate Offered Price of all Notes tendered; (ii) the date of purchase of Notes pursuant to the Asset Sale Offer (the "Asset Sale Purchase Date"), which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed; (iii) that the Offered Price will be paid to Holders electing to have Notes purchased on the Asset Sale Purchase Date, provided that a Holder must surrender its Note to the Paying Agent at the address specified in the notice prior to the close of business at least five Business Days prior to the Asset Sale Purchase Date; (iv) any Note not tendered will continue to accrue interest pursuant to its terms; (v) that unless the Company defaults in the payment of the Offered Price, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on and after the Asset Sale Purchase Date; (vi) that Holders will be entitled to withdraw their tendered Notes and their election to require the Company to purchase such Notes, provided that the Company receives, not later than the close of business on the third Business Day preceding the Asset Sale Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes tendered for purchase, and a statement that such Holder is withdrawing its election to have such Notes purchased; (vii) that the Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered; which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof; and (viii) the instructions a Holder must follow in order to have his Notes purchased in accordance with this Section 1017. 83 To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased in the manner described in Section 1104. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 1017, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Indenture. SECTION 1018. Compliance Certificate. (a) The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year, an Officers' Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and there is no Default or Event of Default which has occurred and is continuing in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Company is taking or proposes to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments on account of the principal of or interest, if any, on the Notes is prohibited or if such event has occurred, a description of the event and what action the Company is taking or proposes to take with respect thereto. (b) The Company shall, so long as any of the Notes are outstanding, deliver to the Trustee, within 5 Business Days of any Officer becoming aware of any Default or Event of Default, an Officers' Certificate specifying such Default or Event of Default. SECTION 1019. Reports. Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the Commission, the Company shall file with the Commission (and provide the Trustee and Holders with copies thereof, without cost to each Holder, within 15 days after it files them with the Commission), (i) within 90 days after the end of each fiscal year, annual reports on Form 1O-K (or any successor or comparable form) containing the information required to be contained therein (or required in such successor or comparable 84 form); (ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports on Form 1O-Q (or any successor or comparable form); (iii) promptly from time to time after the occurrence of an event required to be therein reported, such other reports on Form 8-K (or any successor or comparable form); and (iv) any other information, documents and other reports which the Company would be required to file with the Commission if it were subject to Section 13 or 15(d) of the Exchange Act; provided, however, the Company shall not be so obligated to file such reports with the Commission if the Commission does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders, in each case within 15 days after the time the Company would be required to file such information with the Commission, if it were subject to Sections 13 or 15(d) of the Exchange Act. The Company shall at all times comply with TIA ss. 314(a). SECTION 1020. Further Assurances. The Company shall, upon the request of the Trustee, execute and deliver such further instruments and perform such further acts as may reasonably be necessary or proper to carry out more effectively the provisions of this Indenture. ARTICLE ELEVEN REDEMPTION OF NOTES SECTION 1101. Redemption. The Notes may or shall, as the case may be, be redeemed, as a whole or from time to time in part, subject to the conditions and at the Redemption Prices specified in the form of Note, together with accrued interest to the Redemption Date specified in the form of the Note. SECTION 1102. Applicability of Article. Redemption of Notes at the election of the Company or otherwise, as permitted or required by any provision of this Indenture, shall be made in accordance with such provision and this Article. SECTION 1103. Election to Redeem; Notice to Trustee. The election of the Company to redeem any Notes pursuant to Section 1101 shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of Notes to be redeemed and shall deliver to the Trustee such documentation and records as shall enable the Trustee to select the Notes to be redeemed pursuant to Section 1104. SECTION 1104. Selection by Trustee of Notes to Be Redeemed. 85 If less than all the Notes are to be redeemed, selection of such Notes for redemption shall be made by the Trustee not more than 60 days prior to the Redemption Date, from the Outstanding Notes not previously called for redemption, in compliance with the requirements of the principal national securities exchange, if any, on which such Notes are listed, or, if such Notes are not so listed, on a pro rata basis, by lot or by such other method as the Trustee shall deem fair and appropriate (and in such manner as complies with applicable legal requirements) and which may provide for the selection for redemption of portions of the principal of Notes; provided, however, that no Notes of less than $1,000 shall be redeemed in part. The Trustee shall promptly notify the Company in writing of the Notes selected for redemption and, in the case of any Notes selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to redemption of Notes shall relate, in the case of any Note redeemed or to be redeemed only in part, to the portion of the principal amount of such Note which has been or is to be redeemed. SECTION 1105. Notice of Redemption. Notice of redemption shall be given in the manner provided for in Section 106 at least 30 but not more than 60 days prior to the Redemption Date, to each Holder of Notes to be redeemed at such Holder's registered address. The Trustee shall give notice of redemption in the Company's name and at the Company's expense; provided, however, that the Company shall deliver to the Trustee, at least 30 days prior to the Redemption Date, an Officers' Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the following items. All notices of redemption shall state: (1) the Redemption Date, (2) the Redemption Price and the amount of accrued interest to the Redemption Date payable as provided in Section 1107, if any, (3) if less than all Outstanding Notes are to be redeemed, the identification of the particular Notes (or portion thereof) to be redeemed, as well as the aggregate principal amount of Notes to be redeemed and the aggregate principal amount of Notes to be outstanding after such partial redemption, (4) in case any Note is to be redeemed in part only, the notice which relates to such Note shall state that on and after the Redemption Date, upon surrender of such Note, the holder will receive, without charge, a new Note or Notes of authorized denominations for the principal amount thereof remaining unredeemed, 86 (5) that on the Redemption Date the Redemption Price (and accrued interest, if any, to the Redemption Date payable as provided in Section 1107) will become due and payable upon each such Note, or the portion thereof, to be redeemed, and, unless the Company defaults in making the redemption payment, that interest on Notes called for redemption (or the portion thereof) will cease to accrue on and after said date, (6) the place or places where such Notes are to be surrendered for payment of the Redemption Price and accrued interest, if any, (7) the name and address of the Paying Agent, (8) that Notes called for redemption must be surrendered to the Paying Agent to collect the Redemption Price, (9) the CUSIP number, and that no representation is made as to the accuracy or correctness of the CUSIP number, if any, listed in such notice or printed on the Notes, and (10) the paragraph of the Notes pursuant to which the Notes are to be redeemed. SECTION 1106. Deposit of Redemption Price. Prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the Redemption Price of, and accrued interest on, all the Notes which are to be redeemed on that date. SECTION 1107. Notes Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Notes so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified (together with accrued interest, if any, to the Redemption Date), and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Notes shall cease to bear interest. Upon surrender of any such Note for redemption in accordance with said notice, such Note shall be paid by the Company at the Redemption Price, together with accrued interest, if any, to the Redemption Date; provided, however, that installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Notes, or one or more Predecessor Notes, registered as such at the close of business on the relevant Regular Record Date or Special Record Date, as the case may be, according to their terms and the provisions of Section 308. If any Note called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate borne by the Notes. 87 SECTION 1108. Notes Redeemed in Part. Any Note which is to be redeemed only in part (pursuant to the provisions of this Article) shall be surrendered at the office or agency of the Company maintained for such purpose pursuant to Section 1002 (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder's attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Note without service charge, a new Note or Notes, of any authorized denomination as requested by such Holder, in an aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Note so surrendered; provided that each such new Note will be in a principal amount of $1,000 or integral multiple thereof. ARTICLE TWELVE LEGAL DEFEASANCE AND COVENANT DEFEASANCE SECTION 1201. Company's Option to Effect Legal Defeasance or Covenant Defeasance. The Company and the Guarantors may, at their option by Board Resolution, at any time, with respect to the Notes, elect to have either Section 1202 or Section 1203 be applied to all Outstanding Notes upon compliance with the conditions set forth below in this Article Twelve. SECTION 1202. Legal Defeasance and Discharge. Upon the Company's exercise under Section 1201 of the option applicable to this Section 1202, the Company shall be deemed to have been discharged from its obligations with respect to all Outstanding Notes and each Guarantor shall be deemed to have been discharged from its obligations with respect to its Guarantee on the date the conditions set forth in Section 1204 are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means that the Company and any such Guarantor shall be deemed to have paid and discharged the entire Indebtedness represented by the Outstanding Notes, which shall thereafter be deemed to be "Outstanding" only for the purposes of Section 1205 and the other Sections of this Indenture referred to in (A) and (B) below, and to have satisfied all its other obligations under such Notes and this Indenture insofar as such Notes are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (A) the rights of Holders of Outstanding Notes to receive payments in respect of the principal of, premium, if any, and interest on such Notes when such payments are due, solely from the trust fund described in Section 1204 and as more fully set forth in such Section, (B) the Company's obligations with respect to such Notes under Sections 304, 305, 307, 1002 and 1003, (C) the rights, powers, trusts, duties and immunities of the Trustee hereunder, and the Company's obligations in connection therewith and (D) this Article Twelve. 88 Subject to compliance with this Article Twelve, the Company may exercise its option under this Section 1202 notwithstanding the prior exercise of its option under Section 1203 with respect to the Notes. SECTION 1203. Covenant Defeasance. Upon the Company's exercise under Section 1201 of the option applicable to this Section 1203, the Company and each Guarantor shall be released from its obligations under any covenant contained in Section 801 and in Sections 1009 through 1019 with respect to the Outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter be deemed not to be "Outstanding" for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "Outstanding" for all other purposes hereunder (it being understood that such Notes will not be outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the Outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 501(iii), but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby. SECTION 1204. Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to application of either Section 1202 or Section 1203 to the Outstanding Notes: (i) The Company must irrevocably deposit with the Trustee (or another trustee satisfying the requirements of this Indenture who shall agree to comply with the provisions of this Article Twelve applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Notes, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants selected by the Company, to pay the principal of, premium, if any, and interest due on the Outstanding Notes on the Stated Maturity or on the applicable Redemption Date as the case may be, of such principal, premium, if any, or interest on the Outstanding Notes; (ii) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions, (A) the Company has received from, or there has been published by, the United States Internal Revenue Service a ruling or (B) since the Issuance Date, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel in the United States shall confirm that, subject to 89 customary assumptions and exclusions, the Holders of the Outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred; (iii) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions, the Holders of the Outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to such tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; (iv) no Default or Event of Default shall have occurred and be continuing on the date of such deposit or insofar as Events of Default from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of deposit; (v) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound; (vi) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that, as of the date of such opinion and subject to customary assumptions and exclusions following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally under any applicable U.S. federal or state law, and that the Trustee has a perfected security interest in such trust funds for the ratable benefit of the Holders; (vii) the Company shall have delivered to the Trustee an Officers' Certificate stating that the deposit was not made by the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or any Guarantor or others; and (viii) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel in the United States (which Opinion of Counsel may be subject to customary assumptions and exclusions) each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with. SECTION 1205. Deposited Money and U.S. Government Securities to Be Held in Trust; Other Miscellaneous Provisions. 90 Subject to the provisions of the last paragraph of Section 1003, all money and Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 1205, the "Trustee") pursuant to Section 1204 in respect of the Outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal (and premium, if any) and interest, but such money need not be segregated from other funds except to the extent required by law. Money and Government Securities so held in trust are not subject to Article Thirteen. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Securities deposited pursuant to Section 1204 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Notes. Anything in this Article Twelve to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Securities held by it as provided in Section 1204 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent legal defeasance or covenant defeasance, as applicable, in accordance with this Article. SECTION 1206. Reinstatement. If the Trustee or any Paying Agent is unable to apply any money or Government Securities in accordance with Section 1205 by reason of any legal proceeding or by any reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company's obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 1202 or 1203, as the case may be, until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 1205; provided, however, that if the Company makes any payment of principal of (or premium, if any) or interest on any Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money and Government Securities held by the Trustee or Paying Agent. ARTICLE THIRTEEN SUBORDINATION OF NOTES SECTION 1301. Notes Subordinate to Senior Indebtedness. The Company covenants and agrees, and each Holder of a Note, by his acceptance thereof, likewise covenants and agrees, for the benefit of the holders, from time to 91 time, of Senior Indebtedness that, to the extent and in the manner hereinafter set forth in this Article, the Indebtedness represented by the Notes and the payment of the principal of (and premium, if any) and interest on each and all of the Notes and all other Subordinated Note Obligations are hereby expressly made subordinate and subject in right of payment as provided in this Article to the prior payment in full in cash equivalents of all Senior Indebtedness, whether outstanding on the date of this Indenture or thereafter incurred. SECTION 1302. Payment over of Proceeds upon Dissolution, Etc. Upon any distribution to creditors of the Company in a liquidation or dissolution of the Company or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Company or its property, an assignment for the benefit of creditors or any marshalling of the Company's assets and liabilities: (1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash equivalents of such Senior Indebtedness before the Holders of Notes shall be entitled to receive any payment with respect to the Subordinated Note Obligations (except that Holders of Notes may receive (i) shares of stock and any debt securities that are subordinated at least to the same extent as the Notes to (a) Senior Indebtedness and (b) any securities issued in exchange for Senior Indebtedness and (ii) payments and other distributions made from the trusts described in Article Twelve); and (2) until all Obligations with respect to Senior Indebtedness (as provided in subsection (1) above) are paid in full in cash equivalents, any distribution to which Holders would be entitled but for this Article shall be made to holders of Senior Indebtedness (except that Holders of Notes may receive (i) shares of stock and any debt securities that are subordinated to at least the same extent as the Notes to (a) Senior Indebtedness and (b) any securities issued in exchange for Senior Indebtedness and (ii) payments and other distributions made from the trusts described in Article Twelve) as their interests may appear. SECTION 1303. Suspension of Payment When Senior Indebtedness in Default. The Company may not make any payment upon or distribution in respect of the Subordinated Note Obligations (other than (i) securities that are subordinated to at least the same extent as the Notes to (a) Senior Indebtedness and (b) any securities issued in exchange for Senior Indebtedness and (ii) payments and other distributions made from the trusts described in Article Twelve) until all Senior Indebtedness has been paid in full in cash equivalents if: (i) a default in the payment of any principal of, premium, if any, or interest on, or of unreimbursed amounts under drawn letters of credit or in respect of banker's acceptances or fees relating to letters of credit or banker's acceptances constituting, Designated Senior Indebtedness occurs and is continuing beyond any applicable grace period in the agreement, indenture or other document governing such Designated Senior Indebtedness (a "payment default"); or 92 (ii) a default, other than a payment default, on Designated Senior Indebtedness occurs and is continuing that then permits holders of the Designated Senior Indebtedness to accelerate its maturity (a "non-payment default") and the Trustee receives a notice of the default (a "Payment Blockage Notice") from a Person who may give it pursuant to Section 1313 hereof. No new period of payment blockage may be commenced unless and until 365 days have elapsed since the effectiveness of the immediately preceding Payment Blockage Notice. However, if any Payment Blockage Notice within such 365-day period is given by or on behalf of any holders of Designated Senior Indebtedness (other than the Bank Agent under the Senior Credit Facility), the Bank Agent may give another Payment Blockage Notice within such period. In no event, however, may the total number of days during which any Payment Blockage Period or Periods is in effect exceed 179 days in the aggregate during any 365 consecutive day period. No nonpayment default that existed or was continuing on the date of delivery of any Payment Blockage Notice to the Trustee shall be, or be made, the basis for a subsequent Payment Blockage Notice unless such default shall have been cured or waived for a period of not less than 90 days. The Company may and shall resume payments on and distributions in respect of the Notes and may acquire them upon the earlier of: (1) in the case of a payment default, upon the date on which such default is cured or waived or shall have ceased to exist or such Designated Senior Indebtedness shall have been discharged or paid in full in cash equivalents, or (2) in case of a nonpayment default, the earlier of (x) the date on which such nonpayment default is cured or waived, (y) 179 days after the date on which the applicable Payment Blockage Notice is received (each such period, the "Payment Blockage Period") or (z) the date such Payment Blockage Period shall be terminated by written notice to the Trustee from the requisite holders of such Designated Senior Indebtedness necessary to terminate such period or from their Representative, after which the Company shall resume making any and all required payments in respect of the Notes, including any missed payments, if this Article otherwise permits the payment, distribution or acquisition at the time of such payment or acquisition. SECTION 1304. Acceleration of Notes. If payment of the Notes is accelerated because of an Event of Default, the Company shall promptly notify holders of Senior Indebtedness of the acceleration. SECTION 1305. When Distribution Must Be Paid Over. In the event that the Trustee or any Holder receives any payment of any Subordinated Note Obligations at a time when such payment is prohibited by Sections 1302 or 1303, such payment shall be held by the Trustee or such Holder, for the benefit of, and shall be paid forthwith over and delivered, upon written request, to, the holders of Senior 93 Indebtedness as their interests may appear or to their Representative under the indenture or other agreement (if any) pursuant to which such Senior Indebtedness may have been issued, as their respective interests may appear, for application to the payment of all Senior Indebtedness remaining unpaid to the extent necessary to pay such Senior Indebtedness in full in cash equivalents in accordance with their terms, after giving effect to any concurrent payment or distribution to or for the benefit of holders of Senior Indebtedness. With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform only such obligations on the part of the Trustee as are specifically set forth in this Article Thirteen, and no implied covenants or obligations with respect to the holders of Senior Indebtedness shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness, and shall not be liable to any such holders if the Trustee shall pay over or distribute to or on behalf of Holders or the Company or any other Person money or assets to which any holders of Senior Indebtedness shall be entitled by virtue of this Article Thirteen, except if such payment is made as a result of the willful misconduct or gross negligence of the Trustee. SECTION 1306. Notice by Company. The Company shall promptly notify the Trustee and the Paying Agent of any facts known to the Company that would cause a payment of any Obligations with respect to the Notes that violate this Article, but failure to give such notice shall not affect the subordination of the Notes to the Senior Indebtedness as provided in this Article Thirteen. SECTION 1307. Payment Permitted If No Default. Nothing contained in this Article or elsewhere in this Indenture or in any of the Notes shall prevent the Company, at any time except during the pendency of any case, proceeding, dissolution, liquidation or other winding up, assignment for the benefit of creditors or other marshalling of assets and liabilities of the Company referred to in Section 1302 or under the conditions described in Section 1303, from making payments at any time of principal of (and premium, if any, on) or interest on the Notes. SECTION 1308. Subrogation to Rights of Holders of Senior Indebtedness. Subject to the payment in full of all Senior Indebtedness in cash equivalents, the Holders shall be subrogated (equally and ratably with the holders of all Pari Passu Indebtedness of the Company) to the rights of the holders of such Senior Indebtedness to receive payments and distributions of cash, property and securities applicable to the Senior Indebtedness until the Subordinated Note Obligations shall be paid in full. For purposes of such subrogation, no payments or distributions to the holders of Senior Indebtedness of any cash, property or securities to which the Holders of the Notes or the Trustee would be entitled except for the provisions of this Article, and no payments over pursuant to the provisions of this Article to the holders of Senior Indebtedness by Holders of the Notes or on their behalf or by the Trustee, shall, as among the Company, its creditors other than holders of Senior Indebtedness, and the Holders of the Notes, be deemed to be a payment or distribution by the Company to or on account of the Senior Indebtedness; it being understood that the provisions of this Article 94 are intended solely for the purpose of determining the relative rights of the Holders of the Notes, on the one hand, and the holders of Senior Indebtedness, on the other hand. SECTION 1309. Provisions Solely to Define Relative Rights. The provisions of this Article are and are intended solely for the purpose of defining the relative rights of the Holders on the one hand and the holders of Senior Indebtedness on the other hand. Nothing contained in this Article or elsewhere in this Indenture or in the Notes is intended to or shall (a) impair, as between the Company and the Holders, the obligation of the Company, which is absolute and unconditional, to pay to the Holders the principal of (and premium, if any) and interest on the Notes as and when the same shall become due and payable in accordance with their terms; or (b) affect the relative rights against the Company of the Holders and creditors of the Company other than their rights in relation to holders of Senior Indebtedness; or (c) prevent the Trustee or any Holder from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article of the holders of Senior Indebtedness. If the Company fails because of this Article to pay principal (or premium, if any) or interest on a Note on the due date, the failure is still a Default or Event of Default. SECTION 1310. Trustee to Effectuate Subordination. Each Holder of a Note by his acceptance thereof authorizes and directs the Trustee on such Holder's behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article and appoints the Trustee his attorney-in-fact for any and all such purposes. If the Trustee does not file a proper proof of claim or proof of debt in the form required in any proceeding referred to in Section 504 hereof at least 30 days before the expiration of the time to file such claim, the Bank Agent (if the Senior Credit Facility is still outstanding) is hereby authorized to file an appropriate claim for and on behalf of the Holders of the Notes. SECTION 1311. Subordination May Not Be Impaired by Company. No right of any present or future holder of any Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any non-compliance by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof any such holder may have or be otherwise charged with. SECTION 1312. Distribution or Notice to Representative. Whenever a distribution is to be made or a notice given to holders of Senior Indebtedness, the distribution may be made and the notice given to their Representative. Upon any payment or distribution of assets of the Company referred to in this Article Thirteen, the Trustee and the Holders shall be entitled to rely upon any order or decree made by any court of competent jurisdiction or upon any certificate of such Representative or 95 of the liquidating trustee or agent or other Person making any distribution to the Trustee or to the Holders for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of the Senior Indebtedness and other Indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other acts pertinent thereto or to this Article Thirteen. SECTION 1313. Notice to Trustee. (a) The Company shall give prompt written notice to the Trustee of any fact known to the Company which would prohibit the making of any payment to or by the Trustee in respect of the Notes. Notwithstanding the provisions of this Article or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the making of any payment to or by the Trustee in respect of the Notes, unless and until the Trustee shall have received written notice thereof from the Company, the Bank Agent or a holder of Senior Indebtedness or from any trustee, fiduciary or agent therefor; and, prior to the receipt of any such written notice, the Trustee, subject to TIA Sections 315(a) through 315(d), shall be entitled in all respects to assume that no such facts exist; provided, however, that, if the Trustee shall not have received the notice provided for in this Section at least three Business Days prior to the date upon which by the terms hereof any money may become payable for any purpose (including, without limitation, the payment of the principal of (and premium, if any) or interest on any Note), then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such money and to apply the same to the purpose for which such money was received and shall not be affected by any notice to the contrary which may be received by it within three Business Days prior to such date. (b) Subject to TIA Sections 315(a) through 315(d), the Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness (or a trustee, fiduciary or agent therefor) to establish that such notice has been given by a holder of Senior Indebtedness (or a trustee, fiduciary or agent therefor). In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article and, if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment. SECTION 1314. Reliance on Judicial Order or Certificate of Liquidating Agent. Upon any payment or distribution of assets of the Company referred to in this Article, the Trustee, subject to TIA Sections 315(a) through 315(d), and the Holders of the Notes shall be entitled to rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding up or similar case or proceeding is pending, or a certificate of the trustee 96 in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders of Notes, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article; provided that such court, trustee, receiver, custodian, assignee, agent or other Person has been apprised of, or the order, decree or certificate makes reference to, the provisions of this Article. SECTION 1315. Rights of Trustee as a Holder of Senior Indebtedness; Preservation of Trustees' Rights. The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article with respect to any Senior Indebtedness which may at any time be held by it, to the same extent as any other holder of Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder. Nothing in this Article shall apply to claims of, or payments to, the Trustee under or pursuant to Section 607. SECTION 1316. Article Applicable to Paying Agents. In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term "Trustee" as used in this Article shall in such case (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article in addition to or in place of the Trustee; provided, however, that Section 1315 shall not apply to the Company or any Affiliate of the Company if it or such Affiliate acts as Paying Agent. SECTION 1317. No Suspension of Remedies. Nothing contained in this Article shall limit the right of the Trustee or the Holders of Notes to take any action to accelerate the maturity of the Notes pursuant to Article Five or to pursue any rights or remedies hereunder or under applicable law, except as provided in Article Five. SECTION 1318. Modification of Terms of Senior Indebtedness. Any renewal or extension of the time of payment of any Senior Indebtedness or the exercise by the holders of Senior Indebtedness of any of their rights under any instrument creating or evidencing Senior Indebtedness, including, without limitation, the waiver of default thereunder, may be made or done all without notice to or assent from the Holders or the Trustee. No compromise, alteration, amendment, modification, extension, renewal or other change of, or waiver, consent or other action in respect of, any liability or obligation under or in respect of, or of any of the terms, covenants or conditions of any indenture or other instrument under which any Senior Indebtedness is outstanding or of such Senior Indebtedness, 97 whether or not such release is in accordance with the provisions of any applicable document, shall in any way alter or affect any of the provisions of this Article Thirteen or of the Notes relating to the subordination thereof. SECTION 1319. Certain Terms. For purposes of this Article Thirteen, (i) "cash equivalents" means Government Securities with maturities of nine months or less and (ii) unless the context clearly indicates otherwise, any payment or distribution to the Trustee or any Holder in respect of any Subordinated Note Obligation shall include any payment or distribution of any kind or character from any source, whether in cash, property or securities, by set-off or otherwise, including any repurchase, redemption or acquisition of the Notes and any direct or indirect payment payable by reason of any other Indebtedness or Obligation being subordinated to the Notes. SECTION 1320. Trust Moneys Not Subordinated. Notwithstanding anything contained herein to the contrary, payments from cash or the proceeds of Government Securities held in trust under Article Twelve hereof by the Trustee (or other qualifying trustee) and which were deposited in accordance with the terms of Article Twelve hereof and not in violation of Section 1303 hereof for the payment of principal of (and premium, if any) and interest on the Notes shall not be subordinated to the prior payment of any Senior Indebtedness or subject to the restrictions set forth in this Article Thirteen, and none of the Holders shall be obligated to pay over any such amount to the Company or any holder of Senior Indebtedness or any other creditor of the Company. This Indenture may be signed in any number of counterparts each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Indenture. 98 IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written. AMPHENOL CORPORATION, a Delaware corporation By: ------------------------------------ Name: Title: IBJ SCHRODER BANK & TRUST COMPANY, a New York banking corporation, as Trustee By: ------------------------------------ Name: Title: EX-10.1 5 AMENDED & RESTATED RECEIVABLES PURCHASE AGREEMENT Exhibit 10.1 AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT Dated as of May 19, 1997 among AMPHENOL FUNDING CORP., as Seller, AMPHENOL CORPORATION individually and as initial Servicer, POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION as Purchaser, and NESBITT BURNS SECURITIES, INC., as Agent. || TABLE OF CONTENTS ARTICLE I THE COMMITMENT SECTION 1.01 Commitment.......................................................2 SECTION 1.02 Purchase and Reinvestment Limits.................................2 SECTION 1.03 Making Purchases from Seller.....................................2 SECTION 1.04 Number of Participations.........................................3 SECTION 1.05 Commitment Termination Date......................................3 SECTION 1.06 Voluntary Termination of Commitment or Reduction of Purchase Limit...................................................3 SECTION 1.07 Limitation of Ownership Interest.................................3 ARTICLE II PARTICIPATION, PAY-OUT AMOUNT AND RELATED DEFINITIONS SECTION 2.01 Participation....................................................4 SECTION 2.02 Pay-Out Amount...................................................4 SECTION 2.03 Investment.......................................................5 SECTION 2.04 Yield Factor and Related Definitions.............................5 SECTION 2.05 Servicer's Fee Factor and Related Definitions....................7 SECTION 2.06 Total Reserves and Related Definitions...........................7 SECTION 2.07 Purchaser's Share................................................8 ARTICLE III SETTLEMENTS SECTION 3.01 Establishment and Use of Accounts................................9 SECTION 3.02 Non-Investment Reduction Day Settlement Procedures for Collections..................................................9 SECTION 3.03 Investment Reduction Settlement Procedures for Collections......10 SECTION 3.04 Special Settlement Procedures; Reduction of Investment, etc.....11 SECTION 3.05 Reporting.......................................................13 SECTION 3.06 Payments and Computations, Etc..................................14 SECTION 3.07 Dividing or Combining Participations............................14 SECTION 3.08 Treatment of Collections and Deemed Collections.................15 ARTICLE IV FEES AND YIELD PROTECTION SECTION 4.01 Fees............................................................15 Receivables Purchase Agreement - i SECTION 4.02 Yield Protection................................................15 ARTICLE V CONDITIONS OF PURCHASES SECTION 5.01 Conditions Precedent to Purchase................................17 SECTION 5.02 Conditions Precedent to All Purchases and Reinvestments.........19 ARTICLE VI REPRESENTATIONS AND WARRANTIES SECTION 6.01 Representations and Warranties of Seller........................20 SECTION 6.02 Representations and Warranties of Amphenol......................24 ARTICLE VII COVENANTS OF SELLER AND AMPHENOL SECTION 7.01 Affirmative Covenants of Seller and Amphenol....................28 SECTION 7.02 Reporting Requirements of Seller................................32 SECTION 7.03 Negative Covenants..............................................34 ARTICLE VIII ADMINISTRATION AND COLLECTION SECTION 8.01 Designation of Servicer.........................................37 SECTION 8.02 Duties of Servicer and Seller...................................39 SECTION 8.03 Rights of the Agent.............................................40 SECTION 8.04 Further Action Evidencing Purchases.............................42 SECTION 8.05 Application of Collections......................................42 ARTICLE IX TERMINATION EVENTS SECTION 9.01 Termination Events..............................................43 SECTION 9.02 Remedies........................................................44 ARTICLE X THE AGENT SECTION 10.01 Authorization and Action.......................................45 SECTION 10.02 Agent's Reliance, Etc..........................................45 Receivables Purchase Agreement - ii ARTICLE XI ASSIGNMENT OF PURCHASER'S INTEREST SECTION 11.01 Restrictions on Assignments....................................46 SECTION 11.02 Evidence of Assignment; Endorsement on Certificate.............46 SECTION 11.03 Rights of Assignee.............................................46 SECTION 11.04 Rights of Collateral Trustee...................................46 ARTICLE XII INDEMNIFICATION SECTION 12.01 Indemnities by Seller and Amphenol.............................47 ARTICLE XIII SECURITY INTEREST SECTION 13.01 Grant of Security Interest.....................................49 SECTION 13.02 Further Assurances.............................................49 SECTION 13.03 Remedies.......................................................49 ARTICLE XIV MISCELLANEOUS SECTION 14.01 Amendments, Etc................................................49 SECTION 14.02 Notices, Etc...................................................50 SECTION 14.03 No Waiver; Cumulative Remedies................................50 SECTION 14.04 Binding Effect; Assignability..................................50 SECTION 14.05 GOVERNING LAW..................................................50 SECTION 14.06 Costs, Expenses and Taxes......................................50 SECTION 14.07 No Proceedings.................................................51 SECTION 14.08 No Recourse to Certain Persons.................................51 SECTION 14.09 Confidentiality................................................51 SECTION 14.10 Submission to Jurisdiction.....................................52 SECTION 14.11 Waiver of Jury Trial...........................................52 SECTION 14.12 Integration....................................................53 SECTION 14.13 Captions and Cross References..................................53 SECTION 14.14 Execution in Counterparts......................................53 || Receivables Purchase Agreement - iii APPENDICES APPENDIX A Definitions SCHEDULES SCHEDULE 6.01(f) Description of Proceedings SCHEDULE 6.01(m) List of Offices where Records are Kept SCHEDULE 6.01(n) List of Lock-box Banks SCHEDULE 6.01(r) Trade Names and Corporate Reorganizations SCHEDULE 7.01(g) Description of Credit and Collection Policy SCHEDULE 7.03(d) List of Account Banks EXHIBITS EXHIBIT 1.03(a) Notice of Purchase EXHIBIT 3.04(a) Form of Periodic Report EXHIBIT 3.04(b) Form of Liquidation Statement EXHIBIT 5.01(a) Form of Certificate EXHIBIT 5.01(h)(i) Form of Lock-box Agreement EXHIBIT 5.01(h)(ii)-1 Form of Collection Account Agreement EXHIBIT 5.01(h)(ii)-2 Form of Liquidation Account Agreement EXHIBIT 5.01(i)-1 Form of Opinion of Counsel to Seller, Servicer and the Originators EXHIBIT 5.01(i)-2 Form of Opinion of General Counsel of Seller, Servicer and the Originators EXHIBIT 11.01 Form of Assignment Receivables Purchase Agreement - iv THIS AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (this "Agreement"), dated as of May 19, 1997, is among AMPHENOL FUNDING CORP., a Delaware corporation having its principal office at 358 Hall Avenue, Wallingford, Connecticut 06492-7530 ("Seller"), AMPHENOL CORPORATION, a Delaware corporation having its principal office at 358 Hall Avenue, Wallingford, Connecticut 06492-7530 (in its individual capacity, "Amphenol," and as the initial Servicer), POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION, a Delaware corporation having its principal office at c/o Broadstreet Contract Services, Inc., Two Wall Street, New York, New York 10005 ("Purchaser") and NESBITT BURNS SECURITIES, INC., a Delaware corporation having its principal office at 111 West Monroe Street, Chicago, Illinois 60603 ("Nesbitt Burns"), as agent for Purchaser (in such capacity, the "Agent"). Unless otherwise indicated, certain terms that are capitalized and used throughout this Agreement are defined in Appendix A. Background 1. Seller has a portfolio of Receivables referred to herein as the Portfolio in which Seller intends to sell Participations referred to herein as Participations. 2. The parties hereto (except that Nesbitt Burns is the successor to Bank of Montreal) entered into a Receivables Purchase Agreement, dated as of December 3, 1993 (as amended to the date hereof, the "Original RPA"), pursuant to which, among other things, the Seller agreed to sell to the Purchaser, and the Purchaser agreed to purchase from the Seller, Participations in the Portfolio. Seller has requested Purchaser, and Purchaser has agreed, on the terms and subject to the conditions contained in this Agreement, to purchase Participations from Seller from time to time during the term of this Agreement. 3. Seller and Purchaser also desire that, on the terms and subject to the conditions of this Agreement, certain of the daily Collections in respect of such Participations be reinvested in the Portfolio through the sale to Purchaser of additional Participations in the Portfolio, such daily reinvestment of Collections to be effected by an automatic daily adjustment to Purchaser's Participations, and to be intended to permit Purchaser to maintain its Investments fully invested in the Portfolio. 4. Purchaser expects generally to fund its Purchases and Reinvestments through the issuance of Commercial Paper Notes. Purchaser has entered into a Liquidity Agreement with the Banks providing for the making of loans by the Banks secured by Participations in the event Purchaser hereunder is unable to fund its Purchases or Reinvestments pursuant to this Agreement by the issuance of Commercial Paper Notes or otherwise prefers to fund such Purchases or Reinvestments under the Liquidity Agreement rather than by the issuance of Commercial Paper Notes because the Commercial Paper Rate is unavailable or otherwise not desirable, or is unable to pay such Commercial Paper Notes at maturity from the proceeds of Collections from the Portfolio in which it holds a Participation hereunder. Purchaser has also entered into the Insurance Agreement with the Surety Bond Provider providing for the issuance of the surety bond supporting payment of Portfolio Receivables. 5. Nesbitt Burns has been requested, and is willing, to act as the Agent. NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained, the parties hereto agree as follows: ARTICLE I THE COMMITMENT SECTION 1.01 Commitment. On the terms and subject to the conditions set forth in this Agreement: (a) Purchases. Purchaser shall purchase from Seller Participations from time to time during the period from the date hereof to the Commitment Termination Date. Each such purchase and, as the context may require, the purchase price paid by Purchaser to Seller in respect thereof, is called a "Purchase". (b) Reinvestments. Pursuant to Section 3.02(a)(v), during the period from the date hereof to the Commitment Termination Date, Purchaser shall permit Servicer to cause certain of the Collections in respect of each Participation to be applied on behalf of the Purchaser to the reinvestment in Portfolio Receivables (herein called a "Reinvestment"). Purchaser's obligation to make Purchases and Reinvestments is herein called the "Commitment". SECTION 1.02 Purchase and Reinvestment Limits. Under no circumstances shall Purchaser make any Purchase or Reinvestment to the extent that, after giving effect to such Purchase or Reinvestment, as the case may be: (a) Purchase Limit. The Aggregate Investment would exceed an amount (the "Purchase Limit") equal to $50,000,000, as such amount may be reduced pursuant to Section 1.06; or (b) Pay-Out Amount Limit. The Aggregate Pay-Out Amount would exceed an amount (the "Pay-Out Amount Limit") equal to 100% of the Net Portfolio Balance. Receivables Purchase Agreement - 2 SECTION 1.03 Making Purchases from Seller. (a) Notice of Purchase. Seller may request a Purchase by delivering a notice substantially in the form of Exhibit 1.03(a) to the Agent not later than 11:00 a.m. (Chicago time) on the Business Day preceding the date of such proposed Purchase. Each such notice of a proposed Purchase shall specify the desired amount and date of such Purchase and the desired duration of the initial Yield Period for the resulting Participation. The Agent shall select the duration of such initial, and each subsequent, Yield Period in its discretion; provided that it shall use reasonable efforts, taking into account market conditions, to accommodate Seller's preferences. (b) Amount of Purchase. The amount of a Purchase shall be equal to the lesser of (x) the amount proposed by Seller pursuant to Section 1.03(a) and (y) the maximum amount permitted under Section 1.02. (c) Funding of Purchase. On the date of each Purchase, Purchaser shall, upon satisfaction of the applicable conditions set forth in Article V, make available to the Agent at its office indicated above the amount of its Purchase (determined pursuant to Section 1.03(b)) in same day funds, and after the Agent's receipt of such funds, the Agent shall make such funds immediately available to Seller at such office. SECTION 1.04 Number of Participations. The number of Participations hereunder at any one time, after giving effect to any Purchase, Reinvestment, division or combination, shall not exceed seven (7). SECTION 1.05 Commitment Termination Date. (a) The "Commitment Termination Date" shall be the earlier of (i) May 19, 2004 (herein, as such date may be extended, called the "Scheduled Commitment Termination Date"), and (ii) the date of termination of the Commitment pursuant to Section 1.06 or Section 9.02. (b) The then Scheduled Commitment Termination Date may be extended in the sole discretion of Purchaser and the Agent from time to time for an additional one year period by written request given by Seller to the Agent not more than ninety nor less than thirty days before the then Scheduled Commitment Termination Date, and written acceptance given by the Agent to Seller not later than such day. SECTION 1.06 Voluntary Termination of Commitment or Reduction of Purchase Limit. Seller may, upon at least five Business Days' notice to the Agent, terminate the Commitment in whole or reduce in part the unused portion of the Purchase Limit; provided, however, that (a) each partial reduction shall be in an amount equal to $5,000,000 or an integral multiple thereof, and (b) after giving effect to such partial reduction, the remaining Purchase Limit will not be less than $25,000,000. Receivables Purchase Agreement - 3 SECTION 1.07 Limitation of Ownership Interest. Nothing in this Agreement shall be interpreted as providing Purchaser with an ownership interest in any receivables that are not Portfolio Receivables. ARTICLE II PARTICIPATION, PAY-OUT AMOUNT AND RELATED DEFINITIONS SECTION 2.01 Participation. (a) Definition and Computation of Participation. (i) For purposes of this Agreement, "Participation" means, as the context may require, an undivided ownership interest, stated as a percentage determined from time to time as provided in clause (ii) below, in (A) all then outstanding Portfolio Receivables, (B) all Related Security with respect to such Portfolio Receivables, and (C) all Collections with respect to, and other proceeds of, such Portfolio Receivables and Related Security. (ii) The ownership interest in clause (i) above at any time shall be computed as follows: P = PA/NPB where: P = the Participation at any time; PA = the Pay-Out Amount of such Participation at such time as determined pursuant to Section 2.02; and NPB = the Net Portfolio Balance. (b) Frequency of Computation of Participation. Each Participation shall be computed initially as of the opening of business of Servicer on the date of Purchase of such Participation and shall be recomputed upon receipt of each Periodic Report. In addition, until such Participation shall be reduced to zero, such Participation shall be deemed to be automatically recomputed as of the close of business of Servicer on each day, and, as so recomputed, shall constitute the percentage ownership interest in the Portfolio Receivables, the Related Security and the Collections and other proceeds with respect thereto held by Purchaser on such day. Such Participation shall become zero at such time as Purchaser shall have received the Earned Yield for such Participation, shall have recovered the Investment in such Participation and shall have received all other amounts payable to Purchaser Receivables Purchase Agreement - 4 pursuant to this Agreement in respect of such Participation, and Servicer shall have received the accrued Servicer's Fee for such Participation. Such Participation shall remain constant from the time as of which any such computation or recomputation is made until the time as of which the next such recomputation, if any, shall be made. SECTION 2.02 Pay-Out Amount. "Pay-Out Amount" of a Participation at any times means an amount determined as follows: PA = I + YF + SFF + TR where: PA = the Pay-Out Amount of a Participation at any time; I = the Investment in such Participation, as determined pursuant to Section 2.03; YF = the Yield Factor of such Participation at such time, as determined pursuant to Section 2.04; SFF = the Servicer's Fee Factor of such Participation, as determined pursuant to Section 2.05; and TR = the Total Reserves of such Participation, as determined pursuant to Section 2.06. SECTION 2.03 Investment. "Investment" in a Participation means an amount equal to: (i) the aggregate of the amounts theretofore paid to Seller for such Participation: (A) by Purchase pursuant to Sections 1.01(a) and 1.03 and (B) by Reinvestments pursuant to Sections 1.01(b) and 3.02(a)(v) less (ii) the aggregate amount of Collections received and actually distributed to the Purchaser on account of such Investment pursuant to Sections 3.02 and 3.03. SECTION 2.04 Yield Factor and Related Definitions. (a) Yield Factor. "Yield Factor" means, for a related Participation at any time, an amount determined as follows: YF = EY + UYR where: YF = the Yield Factor of such Participation at such time; Receivables Purchase Agreement - 5 EY = the Earned Yield of such Participation as determined pursuant to Section 2.04(b); and UYR = the Unearned Yield Reserve of such Participation as determined pursuant to Section 2.04(d). (b) Earned Yield. "Earned Yield" means, for any Participation (or portion thereof) for each completed day in a related Yield Period during which Purchaser owns such Participation, an amount equal to the sum of (a) the product of (i) the Investment in such Participation on such day, (ii) the Purchaser Rate per annum on such day and (iii) without duplicating the impact of the per annum nature of the Purchaser Rate, 1/360, plus (b) the Negative Spread Fee for such day (if any); provided, however, that if, pursuant to the definition of "Purchaser Rate", different Purchaser Rates would apply to different portions of such Participation, then Earned Yield shall be calculated separately with respect to each such portion, and the Earned Yield for such Participation shall be the sum of the Earned Yields so calculated for such portions. (c) The Purchaser Rate. The "Purchaser Rate" for any Yield Period for any related Participation (or portion thereof) means: (i) in the case of a Participation (or portion thereof) funded by Commercial Paper Notes, the Commercial Paper Rate for such Yield Period; (ii) in the case of a Participation (or portion thereof) funded pursuant to the Liquidity Agreement, the Bank Rate for such Yield Period; provided, however, that the Bank Rate for such Yield Period will be based on the Reference Rate rather than the IBOR Rate (Reserve Adjusted) unless the Agent receives notice from Seller not later than 10:00 a.m. (Chicago time) two IBOR Business Days prior to the first day of such Yield Period; and (iii) with respect to any day on which a Termination Event shall have occurred and shall be continuing, notwithstanding clauses (i) and (ii) of this definition, the "Purchaser Rate" shall be a rate per annum equal to the Reference Rate in effect on such day plus 2% per annum. (d) Unearned Yield Reserve. "Unearned Yield Reserve" means, with respect to any Participation at any time, an amount equal to the product of (A) the related Investment in such Participation at such time, (B) the sum of (x) the Bank Rate for such Participation (for a Yield Period deemed to commence at such time for a period of one month) plus (y) the Yield Protection Margin deemed to be in effect at such time, (C) without duplicating the impact of the per annum nature of the rate described in clause (B), 1/360 and (D) the Adjusted Average Term of the Portfolio. (i) Yield Protection Margin. "Yield Protection Margin" means, during any Yield Period, a rate per annum equal to 0.25 times the IBOR Rate (Reserve Adjusted). Receivables Purchase Agreement - 6 (ii) Adjusted Average Term. "Adjusted Average Term" means, on any day, the product of 1.5 and the Average Term for such day. (iii) Average Term. "Average Term" means, on any day, that period (expressed in days) equal to the weighted average number of days (based on aging categories) that the Portfolio Receivables are outstanding until paid in full as shall be calculated by Servicer as set forth in the most recent Periodic Report in accordance with the provisions thereof; provided, however, that if the Agent shall disagree with any such calculation, the Agent may recalculate the Average Term for such day, which calculation shall, absent manifest errors, be conclusive. SECTION 2.05 Servicer's Fee Factor and Related Definitions. (a) Servicer's Fee Factor. "Servicer's Fee Factor" means, with respect to any Participation at any time, an amount determined as follows: SFF = SF + USFR where: SFF = the Servicer's Fee Factor for such Participation at such time; SF = the accrued and unpaid Servicer's Fee with respect to such Participation at such time, as determined pursuant to Section 2.05(b); and USFR = the Unearned Servicer's Fee Reserve for such Participation at such time, as determined pursuant to Section 2.05(c). (b) Servicer's Fee. "Servicer's Fee" means, with respect to any Participation, an amount accrued each day in a Yield Period equal to (i) the product of (x) 1%, (y) the Investment in such Participation at the close of business on such day and (z) 1/360; or (ii) upon Servicer's reasonable request on and after the date that Amphenol shall no longer be Servicer, an alternative amount specified by Servicer not exceeding 110% of Servicer's reasonable estimate of the costs and expenses to perform its obligations under this Agreement during such Yield Period. (c) Unearned Servicer's Fee Reserve. "Unearned Servicer's Fee Reserve" means, for any Participation at any time, an amount equal to the product of (x) the related Investment in such Participation at such time times (y) 1% (or if Servicer's Fee is calculated pursuant to clause (b)(ii) above, the percentage determined by dividing such Investment at the close of business on such day by the amount of the Servicer's Fee accrued for such day, multiplying the quotient by l/360 and Receivables Purchase Agreement - 7 expressing the product as a percentage), times (z) a fraction the numerator of which is the number of days equal to the then Adjusted Average Term and the denominator of which is 360. SECTION 2.06 Total Reserves and Related Definitions. (a) The "Total Reserves" of any Participation on any day means the Investment in such Participation at the opening of business of Purchaser on such day multiplied by the greater of: (i) the Dilution Reserve Percentage plus the Loss Reserve Percentage and (ii) 12%. (b) The "Dilution Reserve Percentage" of any Participation on any day means an amount, expressed as a percentage, determined as follows: DRP = [(1.5 x ED) + ((DS-ED) x DS/ED)] x DHR where: DRP = the Dilution Reserve Percentage at such time; ED = the "Expected Dilution" means the average of the Dilution Ratios for the 12 most recent calendar months; DS = the "Dilution Spike" means the highest three-month rolling average of the Dilution Ratio during the 12 most recent calendar months; and DHR = the "Dilution Horizon Ratio" means the gross sales of the Originators during the most recent calendar month divided by Eligible Receivables. (c) The "Loss Reserve Percentage" of any Participation on any day means an amount, expressed as a percentage, determined as follows: LRP = (1.5 x LR x LHR) / (1-(1.5 x LR x LHR)) where: LRP = the Loss Reserve Percentage at such time; LR = the "Loss Ratio" means the highest three-month rolling average of the Default Ratio during the 12 most recent calendar months; and LHR = the "Loss Horizon Ratio" means the gross sales of the Originators during the four most recent calendar months divided by the Eligible Receivables. Receivables Purchase Agreement - 8 SECTION 2.07 Purchaser's Share. "Purchaser's Share" of any Participation with regard to any Collections of Portfolio Receivables received (or deemed received) by Seller or Servicer on any day means an amount equal to the product of: (a) the amount of such Collections received (or deemed received) by Seller or Servicer on such day, times (b)(i) if such day is not an Investment Reduction Day, such Participation (expressed as a decimal) on such day, and (ii) if such day is an Investment Reduction Day, the Pro Rata Share in respect of such Participation (expressed as a decimal) on such day; provided, however, that after such time as a Participation shall equal zero, the Purchaser's Share of Collections therefor shall also equal zero. ARTICLE III SETTLEMENTS SECTION 3.01 Establishment and Use of Accounts. (a) Lock-box Accounts. Seller hereby agrees to establish (or already has established in connection with the Original RPA) the Lock-box Accounts listed on Schedule 6.01(n) (and the related post office boxes) on or before the date of the first Purchase hereunder. The Lock-box Accounts shall be used to receive Collections. No funds other than Collections shall be deposited or transferred intentionally into any Lock-box Account. (b) Liquidation Account. Seller hereby agrees to establish (or already has established in connection with the Original RPA) the Liquidation Account on or before the date of the first Purchase hereunder. The Liquidation Account shall be used to receive transfers of certain amounts of the Purchaser's Share of Collections prior to Settlement Dates and for the other purposes described in the Transaction Documents. No funds other than those transferred in accordance with this Article III shall be transferred or deposited into the Liquidation Account. (c) Collection Account. Seller hereby agrees to establish (or already has established in connection with the Original RPA) the Collection Account on or before the date of the first Purchase hereunder. The Collection Account may be used to receive transfers of certain amounts of the Seller's share of Collections and for the other purposes described in the Transaction Documents. SECTION 3.02 Non-Investment Reduction Day Settlement Procedures for Collections. (a) Daily Procedure. On each day (other than an Investment Reduction Day), Servicer shall be deemed to have received an amount equal to the Purchaser's Share of Collections of Portfolio Receivables that are deposited in the Lock-box Accounts on such day in respect of all Participations; and (i) Servicer may transfer from the Lock-box Accounts to the Collection Account (or may apply in accordance with Section 7.03(g)) the Seller's share of Collections in an amount Receivables Purchase Agreement - 9 equal to the excess of (A) the aggregate Collections deposited in the Lock-box Accounts on such day over (B) the Purchaser's Share of such Collections for all Participations, (ii) out of the portion of the Purchaser's Share of such Collections that is allocable to each respective Participation, Servicer shall hold in trust for the benefit of Purchaser and shall transfer to the Liquidation Account (or may retain in one or more Lock-box Accounts) an amount equal to the Earned Yield on the Investment in such Participation accrued to (and including) such day and not previously so transferred to the Liquidation Account as aforesaid, (iii) Out of the portion of the Purchaser's Share of such Collections that is allocable to each respective Participation, Servicer shall transfer to its own account at its convenience, but in any event within five (5) days, the amount of the Servicer's Fee allocated to such Participation (as determined in accordance with Section 2.05(b)) which has accrued to (and including) such day but which has not previously been transferred to Servicer's account as aforesaid, (iv) Servicer shall apply an amount equal to the remainder of the portion of the Purchaser's Share of such Collections that is allocable to each respective Participation to reduce the Investment in each such Participation, such amount to be applied pro rata in accordance with the amount of each such Investment before such reduction (it being understood that such amount need not be physically paid to Purchaser under this clause (iv)), (v) After such reduction, but subject to Section 3.04(b), the amount referred to in the foregoing clause (iv) with respect to each Investment shall be reinvested by Servicer by means of a Reinvestment in the related Participation, thereby increasing the Investment in such Participation and causing a recomputation of such Participation pursuant to Section 2.01 as of the end of such day, and (vi) After any such Reinvestment, Servicer may transfer from the Lock-box Accounts to the Collection Account the amount referred to in the foregoing clause (v), or may apply such amount to make Restricted Payments permitted by Section 7.03(f). (b) Settlement Date Procedure. On each Settlement Date for each Participation (if no Investment Reduction Day shall have occurred during the Settlement Period then ending), Servicer shall transfer from the Liquidation Account (or from the Lock-box Accounts), as applicable, to the Purchaser's Account the amounts set aside as described in Section 3.02(a)(ii) and the amounts, if any, set aside pursuant to Section 3.04(b) or (c) for payment to the Agent on such Settlement Date; provided, however, that, if any Yield Period for a related Participation shall exceed three months, Servicer shall pay to the Agent within two Business Days of the last day of each three-month period in such Yield Period all Earned Yield that shall have accrued through such last day to the same extent as if such Yield Period had ended on such last day. Receivables Purchase Agreement - 10 (c) Order of Application. Upon the Agent's receipt of funds distributed pursuant to Section 3.02(b), the Agent shall distribute them (i) to Purchaser in payment of the Earned Yield for such Participation and (ii) in the case of any amounts set aside pursuant to Section 3.04(b) or (c), to Purchaser in reduction of the related Investment. SECTION 3.03 Investment Reduction Settlement Procedures for Collections. (a) Daily Procedure. On each Investment Reduction Day Servicer shall set aside and hold in trust for Purchaser the Purchaser's Share (calculated in respect of all Participations) of the Collections in respect of the Portfolio Receivables that were deposited in the Lock-box Accounts on such day by transferring an amount equal to the Purchaser's Share of such Collections no later than one Business day after the Servicer Persons' (or the relevant Servicers') deposit of such Collections into the relevant Lock-box Account, (i) to the Liquidation Account (if no Termination Event shall be continuing on such day) or (ii) upon the request of the Agent, to the Purchaser's Account (if a Termination Event shall be continuing on such day). (b) Settlement Date Procedure. On each Settlement Date for each Participation, if one or more Investment Reduction Days for such Participation occurs during the related Yield Period for such Settlement Period, Servicer shall transfer from the Liquidation Account (or from the Lock-box Accounts), as applicable, to the Purchaser's Account the amounts that have been deposited or retained therein pursuant to Sections 3.02(a)(ii) and 3.03(a), but that have not already been transferred to the Purchaser's Account; provided, however, that the total amount transferred to the Purchaser's Account (on an aggregate basis, taking into account both amounts transferred pursuant to this Section 3.03(b) and amounts transferred pursuant to Section 3.03(a) in respect of each Participation) shall not exceed the sum of (i) the Earned Yield for such Participation, (ii) the Investment in such Participation, (iii) the aggregate of other amounts owed hereunder by Seller to Purchaser or Agent (including, without limitation, all fees payable pursuant to the Fee Letter) and (iv) the accrued Servicer's Fee payable with respect to such Participation. (c) Order of Application. Upon receipt of funds deposited to the Purchaser's Account pursuant to Section 3.03(b), the Agent shall distribute them (i) to Purchaser or the Agent (as the case may be) (A) in payment of the Earned Yield for the relevant Participation(s), (B) in reduction of the related Investment in such Participation(s), and (C) in payment of any other amounts owed by Seller hereunder to Purchaser or the Agent, in each case until reduced to zero, and (ii) to Servicer in payment of the accrued Servicer's Fee allocated to such Participation(s), also until reduced to zero. If there shall be insufficient funds on deposit for the Agent to distribute funds in payment in full of the aforementioned amounts, the Agent shall distribute funds, first, in payment of the Earned Yield for the relevant Participation(s), second, if Amphenol is not the Servicer, the amount described in the foregoing clause (ii) owing to such Person, third, in reduction of the related Investment in such Participation(s), fourth, in payment of other amounts payable to Purchaser or the Agent, and fifth, if Amphenol is the Servicer, in payment of the Servicer's Fee payable with respect to such Participation(s) owing to Amphenol. Receivables Purchase Agreement - 11 SECTION 3.04 Special Settlement Procedures; Reduction of Investment, etc. (a) Deemed Collections. If on any day: (i) the Unpaid Balance of any Portfolio Receivable is: (A) reduced as a result of any defective, rejected or returned merchandise or services, any cash discount, incorrect billings or any other adjustment by Seller, any Originator or any other Affiliate of Seller, (B) reduced or cancelled as a result of a setoff in respect of any claim or dispute by the Obligor thereof against Seller, any Originator or any other Affiliate of Seller (whether such claim arises out of the same or a related or an unrelated transaction), or (C) reduced on account of the obligation of Seller, any Originator or any other Affiliate of Seller to pay to the related Obligor any rebate or refund; or (ii) any of the representations or warranties of Seller set forth in Section 6.01(k) or (o) is no longer true with respect to the Portfolio Receivable, then, on such day, Seller shall be deemed to have received a Collection of such Portfolio Receivable: (I) in the case of clause (i) above, in the amount of such reduction; and (II) in the case of clause (ii) above, in the amount of the Unpaid Balance of such Pool Receivable. On or before the fourteenth calendar day after the Month End Date of each month that contains one or more days on which Seller is deemed to have received such a Collection, Seller shall transfer an amount equal to the aggregate amount of such deemed Collections to Servicer (such transfer to be made, to the greatest extent practicable, from the Collection Account) and Servicer shall distribute such transferred amount in the manner set forth in Section 3.02(a) or Section 3.03(a), as the case may be, as if such transferred amount actually had been received by Seller on the date of such transfer from the Obligors of such Receivables and as if such transferred amount actually had been deposited into one or more of the Lock-box Accounts on the date of such transfer. (b) Unreinvested Collections. Collections that may not be reinvested by means of Reinvestments in a Participation on account of the application of the Pay-Out Amount Limit or the Purchase Limit pursuant to Section 1.02 shall be so reinvested as soon as practicable without violating such Pay-Out Amount Limit or Purchase Limit, as the case may be, unless the Conditions Precedent have not been satisfied. To the extent and so long as such Collections may not be so reinvested, Servicer shall hold such Collections for the benefit of Purchaser for payment to the Agent on the Settlement Date for the Yield Period in which such Collections are accumulated to the extent that permitted Reinvestments cannot occur before such Settlement Date, and the related Investment Receivables Purchase Agreement - 12 as to such Participation shall be deemed reduced in the amount to be paid to the Agent only when in fact so paid. During any Investment Reduction Period, all such Collections shall be held in the Liquidation Account, and upon one Business Day's written notice given by the Agent to Seller, Servicer shall transfer such Collections from the Liquidation Account to the Purchaser's Account. (c) Seller's Reduction of Investment. If at any time Seller shall wish to cause the reduction of the Investment in a related Participation (but not to commence the liquidation of all Participations), Seller may do so as follows: (i) Seller shall give the Agent at least five Business Days' prior written notice thereof (including the amount of such proposed reduction and the proposed date on which such reduction will commence), (ii) on the proposed date of commencement of such reduction and on each day thereafter, Servicer shall stop reinvesting Collections until the amount thereof not so reinvested shall equal the desired amount of reduction, and (iii) Servicer shall hold such Collections for the benefit of Purchaser in the Liquidation Account, for payment to the Agent on the Settlement Date for the Yield Period in which such Collections are accumulated, and the Investment in such Participation shall be deemed reduced in the amount to be paid to the Agent only when in fact so paid; provided, however, that (A) the amount of any such reduction shall be not less than $5,000,000 and shall be an integral multiple of $1,000,000, and the Aggregate Investment after giving effect to such reduction shall not be less than $5,000,000 and shall be in an integral multiple of $1,000,000; provided, that the Aggregate Investment after giving effect to such reduction may be $0, (B) Seller shall use reasonable efforts to attempt to choose a reduction amount, and the date of the commencement thereof, so that such reduction shall commence and conclude in the same Yield Period, and (C) if two or more Participations shall be outstanding at the time of any proposed reduction, unless the Agent shall otherwise consent, such proposed reduction shall be applied to the Participation with the shortest remaining Yield Period. (d) Allocations of Obligor's Payments. Except as provided in Section 3.04(a) or as otherwise required by law or the underlying Contract, all Collections received from an Obligor of any Receivable shall be applied to such Obligor's Receivables then outstanding in the order of the age of such Receivables, starting with the oldest such Receivable; provided, however, that, if payment Receivables Purchase Agreement - 13 is designated by such Obligor for application to specific Receivables, it shall be applied to such specified Receivables. (e) Permitted Investments. Any amounts in the Liquidation Account or the Collection Account, as the case may be, may be invested by Seller (or Servicer on Seller's behalf) in Permitted Investments, so long as Purchaser's interest in such Permitted Investments is perfected and such Permitted Investments are subject to no Adverse Claims other than those of Purchaser provided hereunder. SECTION 3.05 Reporting. (a) On or prior to the fifteenth Business Day of each month (the "Report Date"), Servicer shall prepare and forward to the Agent: (i) a Periodic Report, relating to each Participation owned by Purchaser, as of the close of business of Servicer on the preceding Month End Date, (ii) a listing by Obligor of all Portfolio Receivables together with an aging of such Portfolio Receivables as of such Month End Date, and (iii) a certificate of Seller signed on its behalf by its chief financial officer, dated as of such Month End Date, to the effect that no Termination Event or Unmatured Termination Event has occurred and is continuing. (b) On or prior to each Settlement Date of any Settlement Period containing an Investment Reduction Day, Servicer shall prepare and forward to the Agent a Liquidation Statement as of the close of business of Servicer on such Settlement Date. (c) On or prior to each Settlement Date, Seller will advise the Agent and the Servicer of each Investment Reduction Day that occurrred during such Settlement Period ending on such Settlement Date. (d) Upon the request of the Agent, and upon the Commitment Termination Date, Servicer shall deliver to the Agent and the Surety Bond Provider a General Trial Balance as of the date specified in such request or as of the Commitment Termination Date, as the case may be. SECTION 3.06 Payments and Computations, Etc. (a) All amounts to be paid or deposited by Seller hereunder shall be paid or deposited in accordance with the terms hereof no later than 11:00 a.m. (Chicago time) on the day when due in lawful money of the United States of America in same day funds to a special account (account number 372968-8) in the name of the Purchaser (the "Purchaser's Account") and maintained at Harris Trust and Savings Bank at 115 South LaSalle Street, Chicago, Illinois 60603. Receivables Purchase Agreement - 14 (b) Seller or Servicer, as applicable, shall, to the extent permitted by law, pay to the Agent interest on all amounts not paid or deposited when due hereunder at 2% per annum above the Reference Rate, payable on demand; provided, however, that such interest rate shall not at any time exceed the maximum rate permitted by applicable law. Such interest shall be retained by the Agent except to the extent that such failure to make a timely payment or deposit has continued beyond the date for distribution by the Agent of such overdue amount to Purchaser, in which case such interest accruing after such date shall be for the account of, and distributed by the Agent to, Purchaser. (c) All computations of interest and all computations of Earned Yield, Negative Spread Fee and other fees hereunder shall be made on the basis of a year of 360 days for the actual number of days (including the first but excluding the last day) elapsed. SECTION 3.07 Dividing or Combining Participations. (a) Division of Participations. The Agent may as of the last day of any Yield Period for any then existing Participation, divide such existing Participation on such last day into two or more new Participations, each such new Participation having such Investment as the Agent determines, and all such new Participations collectively having Investments in an aggregate amount equal to the Investment of such existing Participation. (b) Combination of Participations. The Agent may as of the last day of any Yield Period, or on or before the date of any proposed Purchase of a Participation by Purchaser, on such last day or such date of Purchase, as the case may be, combine into one new Participation such existing and/or proposed Participations or any combination thereof, such new Participation having an Investment equal to the sum of the Investments of such Participations so combined. SECTION 3.08 Treatment of Collections and Deemed Collections. Seller shall deliver forthwith to Servicer an amount equal to all Collections deemed received by Seller pursuant to Section 3.04(a), and Seller shall hold or distribute such Collections as Earned Yield, accrued Servicer's Fee, repayment of Investment, etc. to the same extent as if such Collections had actually been received on such date. If Collections are being paid to the Agent, or lock boxes or accounts directly or indirectly owned or controlled by the Agent, Servicer shall forthwith cause any deemed Collections to be paid to the Agent or such lock boxes or accounts. So long as Seller shall hold any Collections or deemed Collections required to be paid to Servicer or the Agent, it shall hold such Collections in trust and separate and apart from its own funds and shall clearly mark its records to reflect such trust. Receivables Purchase Agreement - 15 ARTICLE IV FEES AND YIELD PROTECTION SECTION 4.01 Fees. Seller shall pay to the Agent and Purchaser the fees in the amount and in the times set forth in the Fee Letter. SECTION 4.02 Yield Protection. (a) If (i) Regulation D of the Board of Governors of the Federal Reserve System or (ii) any Regulatory Change occurring after the date hereof: (A) shall subject an Affected Party to any tax, duty or other charge with respect to any Participation owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any Investments or Earned Yield made by or owed to or funded by it or any other amounts due under this Agreement in respect of any Participations owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor (except for changes in the rate of tax on the overall net income of such Affected Party imposed by the United States of America or the jurisdiction in which such Affected Party's principal executive office is located); (B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System but excluding any reserve included in the determination of Earned Yield), special deposit, compulsory loan or similar requirement against assets of, deposits or obligations with or for the account of (or with or for the account of any Affiliate of), or credit extended by, any Affected Party; (C) shall change the amount of capital maintained or required, requested or directed to be maintained by such Affected Party; (D) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or any successor thereto) assesses, deposit insurance premiums or similar charges applicable to such Affected Party; or (E) shall impose any other condition affecting any Participations owned or funded by any Affected Party, its Certificates, if any, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; and the result of any of the foregoing is or would be: (x) to increase the cost to (or in the case of Regulation D referred to above to impose a cost on): (I) an Affected Party funding or making or maintaining any Purchases or Receivables Purchase Agreement - 16 Reinvestments, or loans or other extensions of credit under the Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (II) the Agent for continuing its, or Seller's, relationship with Purchaser, (y) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement, the Liquidity Agreement or the Insurance Agreement with respect thereto, or (z) in the reasonable determination of such Affected Party, to reduce the rate or return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which any such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a statement setting forth the basis of such demand), Seller shall pay directly to such Affected Party, subject to the second sentence of subsection (b) below, such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction. (b) Each Affected Party will promptly notify Seller and the Agent within 30 days after it has knowledge of any event occurring after the date hereof which will entitle such Affected Party to such additional amounts as compensation pursuant to this Section 4.02. Such additional amounts shall accrue from the date of such event (or if such notice is not given within 30 days after such Affected Party's knowledge of such Event, from the date which is 30 days prior to the date such notice is given by such Affected Party). (c) In determining any amount provided for in this Section 4.02, the Affected Party may use any reasonable averaging and attribution methods that it (in its sole discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.02 shall submit to Seller a statement as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of manifest error, be conclusive and binding upon Seller. ARTICLE V CONDITIONS OF PURCHASES SECTION 5.01 Conditions Precedent to Purchase. The effectiveness of this Agreement is subject to the condition precedent that the Agent shall have received the following, each (unless otherwise indicated) dated the date hereof, in form and substance satisfactory to the Agent: Receivables Purchase Agreement - 17 (a) Except to the extent already delivered in connection with the Original RPA, a Certificate; (b) A copy of the resolutions of the Board of Directors of Seller and each Originator approving this amendment and restatement of the Original RPA and the transactions contemplated hereby, certified by the Secretary or Assistant Secretary of each such Person; (c) Good standing certificates for Seller and each Originator issued by the Secretary of State of the jurisdiction of such Person's incorporation; (d) Except to the extent that the certificates delivered in connection with the Original RPA remain true and correct, a certificate of the Secretary or Assistant Secretary of Seller and each Originator certifying the names and true signatures of the officers authorized on such Person's behalf to sign the Transaction Documents to be delivered by it (on which certificate the Agent and Purchaser may conclusively rely until such time as the Agent shall receive from Seller a revised certificate meeting the requirements of this subsection (d)); (e) Except to the extent that the certificate of incorporation, other organizational document and/or by-laws delivered in connection with the Original RPA remain true and correct, the certificate of incorporation or other organizational document of each of Seller and each Originator, duly certified by the Secretary of State of the jurisdiction of such Person's incorporation as of a recent date acceptable to Agent, together with a copy of the by-laws of each of Seller and each Originator, duly certified by the Secretary or an Assistant Secretary of such Person; (f) Except to the extent already delivered in connection with the Original RPA: (i) acknowledgment copies of proper financing statements (Form UCC-1), filed on or prior to the date of the initial Purchase, naming Seller as assignor/seller of receivables or an undivided interest therein and Purchaser as the secured party and purchaser as may be necessary or, in the opinion of the Agent, desirable under the UCC to perfect Purchaser's interests in all Participations in which an interest may be assigned to it or otherwise created or arising hereunder and (ii) executed copies of proper Uniform Commercial Code Form UCC-3 termination statements necessary to release all liens and other Adverse Claims of any Person in any Receivables, Related Security and the Lock-box Accounts previously granted by any Person; (g)(i) A written search report provided to the Agent by a search service acceptable to the Agent, listing all effective financing statements that name Seller or any Originator as debtor or assignor and that are filed in the jurisdictions in which filings were made pursuant to subsection (f) above and in such other jurisdictions that Agent shall reasonably request, together with copies of such financing statements (none of which shall cover any Receivable or interests therein or proceeds of any thereof), and (ii) tax and judgment lien search reports Receivables Purchase Agreement - 18 from a Person satisfactory to the Agent showing no evidence of such lien filed against Seller or any Originator; (h) Except to the extent already delivered in connection with the Original RPA, duly executed copies of (i) Lock-box Agreements with each of the Lock-box Banks and (ii) Account Agreements with each of the Account Banks; (i) Favorable opinions from: (i) Simpson Thatcher & Bartlett, counsel to Amphenol (as the Servicer), Seller and the Originators, substantially in the form of Exhibit 5.01(i)-1; and (ii) Edward C. Wetmore, General Counsel of Amphenol (as the Servicer), Seller and the Originators, substantially in the form of Exhibit 5.01(i)-2; (j) Except to the extent already delivered in connection with the Original RPA, such powers of attorney as the Agent shall reasonably request to enable Agent to collect all amounts due under any and all Portfolio Receivables; (k) A Periodic Report as of the most recent Month End Date; (l) Except to the extent already delivered in connection with the Original RPA, the Servicer Person Letter Agreement, duly executed by Seller, Amphenol and the Originators; (m) Evidence (i) of the execution and delivery by each of the parties thereto of the amended and restated Purchase and Sale Agreement, dated as of the date hereof, and all documents, agreements and instruments contemplated thereby (which evidence shall include copies, either original or facsimile, of each of such documents, instruments and agreements), (ii) that each of the conditions precedent to the effectiveness of such amended and restated Purchase and Sale Agreement has been satisfied to the Agent's satisfaction, and (iii) that the initial purchases under such amended and restated Purchase and Sale Agreement have been consummated; (n) A certificate from an officer of Amphenol (in form satisfactory to the Agent) to the effect that, on the date hereof, Seller has a Tangible Net Worth, as calculated in accordance with GAAP, of at least Four Million Dollars ($4,000,000); (o) A certificate from an officer of Amphenol to the effect that Servicer and each Originator have placed on the most recent, and have taken all steps reasonably necessary to ensure that there shall be placed on each subsequent, data processing report that it generates which are of the type which any proposed purchaser or lender would use to evaluate the Receivables, the following legend (or the substantive thereof): "THE RECEIVABLES Receivables Purchase Agreement - 19 DESCRIBED HEREIN HAVE BEEN SOLD TO AMPHENOL FUNDING CORP. PURSUANT TO AN AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT, DATED AS OF MAY 19, 1997, AS AMENDED OR SUPPLEMENTED FROM TIME TO TIME, AMONG AMPHENOL CORPORATION, CERTAIN OTHER ORIGINATORS, AND AMPHENOL FUNDING CORP.; AND UNDIVIDED, FRACTIONAL OWNERSHIP INTERESTS IN THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION PURSUANT TO AN AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT, DATED AS OF MAY 19, 1997, AS THE SAME MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME, AMONG AMPHENOL FUNDING CORP., AMPHENOL CORPORATION, POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION, AND NESBITT BURNS SECURITIES, INC., AS AGENT"; (p) The Fee Letter, together with the fees payable to the Agent pursuant thereto and all costs and expenses due and payable pursuant to Section 14.06, if then invoiced; (q)(i) Duly executed and delivered counterparts of the Amphenol Credit Agreement (which agreement shall have a revolving credit term that expires no earlier than the Scheduled Commitment Termination Date) permitting the transactions contemplated by the Transaction Documents and not providing for any Adverse Claims in the Receivables, Related Security, Lock-box Accounts and other collateral described in Section 13.01, and (ii) confirmation that the recapitalization of Amphenol and its Affiliates shall have closed; (r) A certificate from an authorized officer of Amphenol and an authorized officer of Seller as to the satisfaction of the conditions set forth in Section 5.02; and (s) The Agent shall have received evidence of the execution and delivery of an amendment to the Liquidity Agreement in connection with this amendment and restatement of the Original RPA. SECTION 5.02 Conditions Precedent to All Purchases and Reinvestments. Each Purchase (including the initial Purchase) and each Reinvestment hereunder shall be subject to the further condition precedent ("Conditions Precedent") that on the date of such Purchase or Reinvestment the following statements shall be true (and Seller by accepting the amount of such Purchase or by receiving the proceeds of such Reinvestment shall be deemed to have certified that): (a) The representations and warranties contained in Sections 6.01 and 6.02 are true and correct on and as of such day as though made on and as of such day and shall be deemed to have been made on such day (except to the extent that any such representation or warranty is expressed to be made only as of an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date); Receivables Purchase Agreement - 20 (b) No event has occurred and is continuing, or would result from such Purchase or Reinvestment, that constitutes a Termination Event or an Unmatured Termination Event; (c) After giving effect to each proposed Purchase or Reinvestment, the Aggregate Investment will not exceed the Purchase Limit and the Aggregate Pay-Out Amount will not exceed the Pay-Out Amount Limit; and (d) The Commitment Termination Date shall not have occurred; provided, however, that the absence of the occurrence and continuance of an Unmatured Termination Event (other than an Unmatured Termination Event with respect to an event described in Section 9.01(f)) shall not be a Condition Precedent to: (i) any Reinvestment being made with the proceeds of Collections that were, on the same day, applied in reduction of the Aggregate Investment, or (ii) any other Reinvestment or any Purchase on any day which does not cause the Aggregate Investment, after giving effect to such Reinvestment or Purchase (and any Reinvestment referred to in clause (i) next above) to exceed the Aggregate Investment as of the opening of business on such day. ARTICLE VI REPRESENTATIONS AND WARRANTIES SECTION 6.01 Representations and Warranties of Seller. In order to induce Purchaser and the Agent to enter into this Agreement and, in the case of Purchaser, to make Purchases and Reinvestments hereunder, Seller hereby represents and warrants to Purchaser and the Agent as to itself as follows: (a) Organization and Good Standing. It is a corporation duly organized, validly existing and in good standing under the laws of its state of incorporation; and has all requisite corporate power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted. (b) Due Qualification. It is duly licensed or qualified to do business as a foreign corporation in good standing, and has obtained all necessary licenses and approvals, in all jurisdictions in which the ownership or lease of its property or the conduct of its business requires such qualification, licenses or approvals (except to the extent that the failure to be so licensed or qualified would not be reasonably likely to have a Material Adverse Effect), Receivables Purchase Agreement - 21 (c) Power and Authority; Due Authorization. It has (i) all necessary corporate power and authority and legal right (A) to execute, deliver and perform its obligations under each Transaction Document to which it is a party, and (B) to sell and assign Participations on the terms and conditions herein provided, and (ii) duly authorized by all necessary corporate action (including, if required, any shareholder action) such execution, delivery and performance of such Transaction Documents. Seller had at all relevant times, and now has, all necessary power and authority and legal right to acquire and own the Portfolio Receivables, to sell and assign Participations and to incur obligations hereunder. (d) Valid Sale; Binding Obligations. Each Purchase made pursuant to this Agreement shall constitute a valid sale, transfer and assignment of the relevant Participation to Purchaser, enforceable against creditors of, and purchasers from, Seller; and this Agreement constitutes, and each other Transaction Document executed or to be executed by Seller, when duly executed and delivered, constitutes or will constitute, a legal, valid and binding obligation of Seller enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law. (e) No Violation. The consummation of the transactions contemplated by this Agreement and the other Transaction Documents, and the fulfillment of the terms hereof and thereof, will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice, lapse of time or both) a default under: (A) the articles or certificate of incorporation or by-laws of Seller, or (B) any indenture, loan agreement, mortgage, deed of trust or other agreement or instrument to which Seller is a party or by which it or any of its properties is otherwise bound, (ii) result in the creation or imposition of any Adverse Claim upon any of its Receivables or related properties pursuant to the terms of any such indenture, loan agreement, mortgage, deed of trust or other agreement or instrument, other than the Transaction Documents, or (iii) violate any law or any order, rule or regulation applicable to Seller of any court or of any federal, state or foreign regulatory body, administrative agency or other governmental instrumentality having jurisdiction over Seller or any of its properties. (f) No Proceedings. Except as described in Schedule 6.01(f), (i) there is: (A) no order, judgment, decree, injunction, stipulation or consent order of or with any court or other government authority to which Seller is subject, and (B) there is no action, suit, arbitration, regulatory proceeding or investigation pending or threatened, before or by any court, regulatory body, administrative agency or other tribunal or governmental instrumentality, against Seller, that, in either case, individually or in the aggregate, is reasonably likely to have a Material Adverse Effect; and Receivables Purchase Agreement - 22 (ii) there is no action, suit, proceeding, arbitration or regulatory or governmental investigation, pending or threatened, before or by any court, regulatory body, administrative agency or other tribunal or governmental instrumentality (A) asserting the invalidity of this Agreement, the Certificate or any other Transaction Document, (B) seeking to prevent the sale and assignment of any Participation, the issuance of the Certificate, or the consummation of any of the other transactions contemplated by this Agreement or any other Transaction Document, or (C) seeking to adversely affect the federal income tax attributes of the Purchases and Reinvestments hereunder or the Certificate. (g) Bulk Sales Act. No transaction contemplated by this Agreement or the other Transaction Documents requires compliance with, or will be subject to avoidance under, any bulk sales act or similar law. (h) Government Approvals. No authorization, consent, approval or other action by, and no notice to or filing with, any court, governmental authority or regulatory body or other Person, domestic or foreign (which has not been obtained or made), is or will be required for the due execution, delivery or performance by Seller of any Transaction Document to which it is a party, except for the filing of the UCC Financing Statements referred to in Article V, all of which, at the time required in Article V, shall have been duly made and shall be in full force and effect. (i) Financial Condition. (i) Seller's balance sheet as of the date of this Agreement, certified by the Financial Officer, copies of which have been furnished to Purchaser and the Agent, fairly presents Seller's assets and liabilities at such date; and (ii) Since December 31, 1996, no event has occurred that has had, or is reasonably likely to have, a Material Adverse Effect. (j) Margin Regulations. The use of all funds acquired by Seller under this Agreement will not conflict with or contravene any of Regulations G, T, U and X promulgated by the Board of Governors of the Federal Reserve System from time to time. (k) Quality of Title. Seller owns each Portfolio Receivable, together with the related Contract and all purchase orders and other agreements related to such Portfolio Receivable, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken Receivables Purchase Agreement - 23 by Purchaser or by the Agent) except as expressly provided herein or in the Purchase and Sale Agreement. When Purchaser makes a Purchase, it shall have acquired and shall continue to maintain a valid and perfected first priority undivided percentage ownership interest to the extent of its Participation in each Portfolio Receivable and in the Related Security and Collections with respect thereto free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by Purchaser or by the Agent except as expressly provided under this Agreement or under the Purchase and Sale Agreement). No effective financing statement or other instrument similar in effect covering any Portfolio Receivable, any interest therein, the Related Security or Collections with respect thereto is on file in any recording office except such as may be filed (i) in favor of the relevant Originator in accordance with the Contracts, (ii) in favor of the Seller in accordance with the Purchase and Sale Agreement, (iii) in favor of Purchaser or the Agent in accordance with this Agreement, (iv) in connection with any Adverse Claim arising solely as the result of any action taken by Purchaser (or any assignee thereof) or by the Agent or (v) in favor of the Collateral Trustee. (l) Accurate Reports. No Periodic Report (if prepared by Seller or any Originator, or to the extent that information contained therein was supplied by Seller or any Originator), information, exhibit, financial statement, document, book, record or report furnished or to be furnished by Seller or any Originator to the Agent or Purchaser in connection with this Agreement or the other Transaction Documents was or will be inaccurate in any material respect as of the date it was or will be dated or (except as otherwise disclosed to the Agent or Purchaser, as the case may be, at such time) as of the date so furnished, or contained or will contain any material misstatement of fact or omitted or will omit to state a material fact or any fact necessary to make the statements contained therein not materially misleading. (m) Offices. The principal places of business and chief executive offices of Seller is located at its address referred to in Section 14.02 and the offices where Seller keeps all its books, records and documents evidencing Portfolio Receivables, the related Contracts and all purchase orders and other agreements related to such Portfolio Receivables are located at the address specified in Exhibit 6.01(m) (or at such other locations, notified to the Agent in accordance with Section 7.01(f), in jurisdictions where all action required by Section 8.04 has been taken and completed). (n) Lock-box Accounts. The names and addresses of all the Lock-box Banks, together with the account numbers of the lock-box accounts of Seller at such Lock-box Banks, are specified in Exhibit 6.01(n) (or at such other Lock-box Banks and/or with such other lock-box accounts as have been notified to the Agent in accordance with Section 7.03(d)). (o) Eligible Receivables. Each Receivable included in the Seller's calculation of the Net Portfolio Balance as an Eligible Receivable on the date of any Purchase or Reinvestment shall be an Eligible Receivable on such date. (p) Capitalization.The authorized capital stock of Seller consists of one thousand (1000) shares of common stock, without par value ("Seller Common Stock"), 100 of which shares are currently issued and outstanding. All of such outstanding shares of Seller Common Stock are validly issued, fully paid and nonassessable and are owned (beneficially and of Receivables Purchase Agreement - 24 record) by the Originators in the amounts set forth in Schedule 1 to the Subscription Agreement. (q) Licenses and Labor Controversies. (i) Seller has not failed to obtain any licenses, permits, franchises or other governmental authorizations necessary to the ownership of its properties or to the conduct of its business, which violation or failure to obtain would be reasonably likely to have a Material Adverse Effect; (ii) There are no labor controversies pending against Seller that have had (or are reasonably likely to have) a Material Adverse Effect. (r) Trade Names. Seller does not use any trade name other than its actual corporate name and the trade names set forth in Schedule 6.01(r). From and after December 3, 1988, Seller has not been known by any legal name other than its corporate name as of the date hereof, nor has it been the subject of any merger or other corporate reorganization, except as set forth in Schedule 6.01(r). (s) Taxes. Seller has filed all federal and other tax returns and reports required by law to have been filed by it and has paid all taxes and governmental charges thereby shown to be owing, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves, if any, in accordance with GAAP shall have been set aside on its respective books. (t) Compliance with Applicable Laws. Seller is in compliance with the requirements of (i) all applicable laws, rules, regulations and orders of all governmental authorities (excluding with respect to environmental matters, which are covered by clause (ii)) and (ii) to the best of its knowledge, all applicable environmental laws, rules, regulations and orders of all governmental authorities, in the case of each of clauses (i) and (ii), including federal, state, local or foreign, a breach of any of which, individually or in the aggregate, would be reasonably likely to have a Material Adverse Effect. SECTION 6.02 Representations and Warranties of Amphenol. In order to induce Purchaser and the Agent to enter into this Agreement and, in the case of Purchaser, to make Purchases and Reinvestments hereunder, Amphenol hereby represents and warrants to Purchaser and the Agent as to itself and with respect to each other Originator as follows: (a) Organization and Good Standing. Each Originator has been duly organized and is validly existing as a corporation in good standing under the laws of the state of its incorporation, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted. Receivables Purchase Agreement - 25 (b) Due Qualification. Each Originator is duly licensed or qualified to do business as a foreign corporation in good standing in all jurisdictions in which the ownership or lease of its property or the conduct of its business requires such licensing or qualification (except to the extent that the failure to be so licensed or qualified would not be reasonably likely to have a Material Adverse Effect). (c) Power and Authority; Due Authorization. Each Originator has: (i) all necessary power, authority and legal right: (A) to execute and deliver, and perform its obligations under, each Transaction Document to which it is a party and (B) to generate, own, sell and assign Receivables on the terms and subject to the conditions herein and therein provided; and (ii) duly authorized such execution and delivery and such sale and assignment and the performance of such obligations by all necessary corporate action (including, if required, any shareholder action). (d) Binding Obligations. This Agreement and each other Transaction Document signed or to be signed by each Originator, when duly executed and delivered, constitutes or will constitute, a legal, valid and binding obligation of such Originator, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law. (e) No Violation. The consummation of the transactions contemplated by this Agreement and the other Transaction Documents, and the fulfillment of the terms hereof or thereof, will not (a) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice, lapse of time or both) a default under (i) each Originator's articles or certificate of incorporation or by-laws, or (ii) any indenture, loan agreement, mortgage, deed of trust or other agreement or instrument to which any Originator is a party or by which any Originator or any of their respective properties is bound, except for any conflict, breach or default that would not be reasonably likely to have a Material Adverse Effect, (b) result in the creation or imposition of any Adverse Claim upon any Originator's properties pursuant to the terms of any such indenture, loan agreement, mortgage, deed of trust or other agreement or instrument, other than the Transaction Documents, or (c) violate any law or any order, rule or regulation applicable to it of any court or of any federal, state or foreign regulatory body, administrative agency or other governmental instrumentality having jurisdiction over any Originator or any of its properties, except for any violation that would not be reasonably likely to have a Material Adverse Effect. (f) No Proceedings. Except as described in Schedule 6.01(f), there is no action, suit, proceeding or investigation pending before any court, regulatory body, arbitrator, administrative agency or other tribunal or governmental instrumentality: (i) asserting the Receivables Purchase Agreement - 26 invalidity of any Transaction Document, (ii) seeking to prevent the issuance of any such Originator's Originator Assignment Certificate or the consummation of any of the transactions contemplated by any Transaction Document, or (iii) seeking any determination or ruling that is reasonably likely to have a Material Adverse Effect. (g) Bulk Sales Acts. No transaction contemplated hereby requires compliance with, or will be subject to avoidance under, any bulk sales act or similar law. (h) Government Approvals. Except for the filing of the UCC financing statements referred to in Article V of the Purchase and Sale Agreement, all of which, at the time required in such Article V, shall have been duly made and shall be in full force and effect, no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for each Originator's due execution, delivery and performance of any Transaction Document to which it is a party, except where the failure to receive or make such authorization, approval, action, notice or filing would not be reasonably likely to have a Material Adverse Effect. (i) Financial Condition. (i) The consolidated balance sheets of Amphenol and its consolidated subsidiaries as of December 31, 1996, and the related statements of income and shareholders' equity of Amphenol and its consolidated subsidiaries for the fiscal year then ended certified by Price Waterhouse, Amphenol's independent accountants, copies of which have been furnished to the Agent, present fairly the consolidated financial position of Amphenol and its consolidated subsidiaries as at such date and the consolidated results of the operations of Amphenol and its consolidated subsidiaries for the period ended on such date, all in accordance with GAAP consistently applied; and (ii) Since December 31, 1996, no event has occurred that has had, or is reasonably likely to have, a Material Adverse Effect. (j) Licenses, Contingent Liabilities and Labor Controversies. (i) No Originator has failed to obtain any licenses, permits, franchises or other governmental authorizations necessary to the ownership of its properties or to the conduct of its business, which violation or failure to obtain would be reasonably likely to have a Material Adverse Effect. (ii) There are no labor controversies pending against any Originator that have had (or are reasonably likely to have) a Material Adverse Effect. (k) Margin Regulations. No use of any funds acquired by any Originator under the Purchase and Sale Agreement will conflict with or contravene any of Regulations G, T, U and X promulgated by the Board of Governors of the Federal Reserve System from time to time. Receivables Purchase Agreement - 27 (l) Quality of Title. (i) Each Receivable of each Originator (together with the Related Security for such Receivable) which is to be sold to Seller under the Purchase and Sale Agreement is or shall be owned by such Originator, free and clear of any Adverse Claim, except as provided herein and in the Purchase and Sale Agreement. Whenever Seller makes a purchase under the Purchase and Sale Agreement, it shall have acquired and shall continue to have maintained a valid and perfected ownership interest (free and clear of any Adverse Claim) in all Receivables generated by such Originator and all Collections related thereto, and in such Originator's entire right, title and interest in and to the Related Security with respect thereto. (ii) No effective financing statement or other instrument similar in effect covering any Receivable generated by any Originator or any right related to any such Receivable that is of the type described in Section 1.1 of the Purchase and Sale Agreement is on file in any recording office except such as may be filed in favor of Seller or the Originators, as the case may be, in accordance with the Purchase and Sale Agreement or in favor of Purchaser in accordance with this Agreement. (m) Accuracy of Information. All factual written information heretofore or contemporaneously furnished (and prepared) by each Originator to Seller, Purchaser or the Agent for purposes of or in connection with any Transaction Document or any transaction contemplated hereby or thereby is, and all other such factual written information hereafter furnished (and prepared) by such Originator to Seller, Purchaser or the Agent pursuant to or in connection with any Transaction Document will be, true and accurate in every material respect on the date as of which such information is dated or certified. No information contained in any report delivered pursuant to Section 7.2 of the Purchase and Sale Agreement or in any Purchase Report shall be incomplete by omitting to state any material fact necessary to make such information not misleading on the date as of which such information is dated or certified. (n) Offices. Each Originator's principal place of business and chief executive office are located at their respective addresses set forth on the signature pages to the Purchase and Sale Agreement under such Originator's signature thereto, and the offices where such Originator keeps all its books, records and documents evidencing its Receivables, the related Contracts and all other agreements related to such Receivables are located at the addresses specified in Exhibit 6.01(m) (or at such other locations, notified to Servicer and the Agent in accordance with Section 7.01(f), in jurisdictions where all action required by Section 8.05 has been taken and completed). (o) Trade Names. No Originator uses any trade name other than its actual corporate name and the trade names set forth in Schedule 6.01(r). Except as set forth on Schedule 6.01(r), from and after December 3, 1988, each Originator has not been known by any legal name other than its corporate name as of the date hereof, nor has any Originator been the Receivables Purchase Agreement - 28 subject of any merger or other corporate reorganization, except as set forth in Schedule 6.01(r). (p) Taxes. Each Originator has filed all tax returns and reports required by law to have been filed by it and has paid all taxes and governmental charges thereby shown to be owing, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books. (q) Compliance with Applicable Laws. Each Originator is in compliance with the requirements of all applicable laws, rules, regulations and orders of all governmental authorities, a breach of any of which, individually or in the aggregate, would be reasonably likely to have a Material Adverse Effect. ARTICLE VII COVENANTS OF SELLER AND AMPHENOL SECTION 7.01 Affirmative Covenants of Seller and Amphenol. From the date hereof until the first day following the Commitment Termination Date on which all Participations shall be reduced to zero and all Obligations hereunder shall have been finally and fully paid and performed, Seller hereby covenants and agrees with Purchaser and the Agent as to itself, and Amphenol hereby covenants and agrees with Purchaser and the Agent as to itself, Seller and each Originator, that, unless the Agent shall otherwise consent in writing, it shall: (a) Compliance with Laws, Etc. Comply, and in the case of Amphenol, cause each Originator to comply, in all material respects with all applicable laws, rules, regulations and orders that relate to the Portfolio Receivables and related Contracts except where the failure to so comply would not materially and adversely affect the collectability of the Portfolio Receivables or the rights of Purchaser hereunder. (b) Preservation of Corporate Existence. Preserve and maintain its corporate existence, rights, franchises and privileges in the jurisdiction of its incorporation, and qualify and remain qualified in good standing as a foreign corporation in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would have a Material Adverse Effect. (c) Audits. (i) At any time and from time to time during regular business hours (and upon two Business Days' prior notice so long as no Termination Event is continuing), permit, and in the case of Amphenol, cause the Seller and each Originator to permit, the Agent, or its agents or representatives (and/or, if the Agent shall have consented (which consent shall Receivables Purchase Agreement - 29 not be unreasonably withheld), the Surety Bond Provider or its agents or representatives) (A) to examine and make copies of and abstracts from all books, records and documents (including, without limitation, computer tapes and disks) in possession or under the control of Seller, Amphenol or any other Originator relating to Receivables, including, without limitation, the related Contracts and purchase orders and other agreements, and (B) to visit the offices and properties of Seller, Amphenol and each Originator for the purpose of examining such materials described in clause (i)(A) above, and to discuss matters relating to Portfolio Receivables or the performance hereunder with any of the officers or employees of Seller, Amphenol and each Originator having knowledge of such matters, and (ii) without limiting the foregoing clause (i), from time to time on request of the Agent (given not more than once in each calendar year so long as no Termination Event shall have occurred and be continuing), permit certified public accountants or other auditors acceptable to the Agent to conduct, at Seller's expense (so long as such expenses for Seller's account do not exceed $15,000 in a calendar year), a review of Seller's and Amphenol's books and records with respect to the Receivables. (d) Keeping of Records and Books of Account. Maintain and implement, and in the case of Amphenol, cause Seller and each Originator to maintain and implement, administrative and operating procedures (including, without limitation, an ability to recreate records evidencing Portfolio Receivables in the event of the destruction of the originals thereof), and keep and maintain all documents, books, records and other information reasonably necessary or advisable for the collection of all Portfolio Receivables (including, without limitation, records adequate to permit the daily identification of each new Portfolio Receivable and all Collections of and adjustments to each existing Portfolio Receivable). (e) Performance and Compliance with Receivables and Contracts. Subject to Section 7.03(b), in the case of Amphenol, at its expense timely and fully perform and comply, and cause each other Originator timely and fully to perform and comply, in all material respects with all of the provisions, covenants and other promises required to be observed by it under the Contracts related to the Portfolio Receivables and all purchase orders and other agreements related to such Portfolio Receivables. (f) Location of Records. Keep, and in the case of Amphenol, cause each other Originator to keep, its principal place of business and chief executive office, and the offices where it keeps its records concerning the Portfolio Receivables, all related Contracts and all purchase orders and other agreements related to such Portfolio Receivables (and all original documents relating thereto), at the address(es) referred to in Section 6.01(m) or, upon 15 days' prior written notice to the Agent, at such other locations in jurisdictions where all action required by Section 8.04 shall have been taken and completed. (g) Credit and Collection Policies. In the case of Amphenol, comply, and cause each other Originator to comply, in all material respects with the Credit and Collection Policy of Receivables Purchase Agreement - 30 Amphenol and each such Originator, respectively, in regard to each Portfolio Receivable and the related Contract. (h) Collections. (i) In the case of Amphenol (individually and not as Servicer), promptly remit, and cause each other Originator promptly to remit, to the applicable post office box related to the Lock-box Accounts (or cause to be deposited directly to such Lockbox Accounts) all Collections received by Amphenol or such other Originators, as the case may be; (ii) Amphenol agrees to instruct, and to cause each other Originator to instruct, all Obligors to cause all Collections of Portfolio Receivables to be deposited directly with a Lock-box Bank; and (iii) Amphenol shall, and shall cause each Servicer Person to, promptly draw on any letter of credit supporting any Receivable originated by it in order to ensure the timely payment of such Receivable, and shall cause the proceeds of such drawing to be deposited to a Lock-box Account on the date such drawing is honored by the issuer of such letter of credit. (i) Separate Corporate Existence. Amphenol and Seller hereby acknowledge that Purchaser and the Agent are entering into the transactions contemplated by this Agreement in reliance upon Seller's identity as a legal entity separate from Servicer, Amphenol, and the Originators. Therefore, from and after the date hereof, Seller and Amphenol shall take all reasonable steps to continue Seller's identity as a separate legal entity and to make it apparent to third Persons that Seller is an entity with assets and liabilities distinct from those of Servicer, Amphenol, the Originators and any other Person, and is not a division of Servicer, Amphenol, any Originator or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the covenant set forth in Section 7.01(b), Seller and Amphenol shall take such actions, and Amphenol shall cause the Originators to take such actions, as shall be required in order that: (i) Seller will be a limited purpose corporation whose primary activities are restricted in its certificate of incorporation to purchasing Receivables from the Originators, entering into agreements for the servicing of such Receivables, selling Participations, making Originator Loans and conducting such other activities as it deems necessary or appropriate to carry out its primary activities; (ii) Not less than one member of Seller's Board of Directors (the "Independent Directors") shall be individuals who are not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of any Amphenol Person or any of its Affiliates. Seller's Board of Directors shall not approve, or take any other action to cause, the commencement of a Receivables Purchase Agreement - 31 voluntary case or other proceeding with respect to Seller under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian or other similar official for Seller unless in each case all of the Independent Directors shall approve the taking of such action in writing prior to the taking of such action. The Independent Directors' fiduciary duty shall be to Seller (and creditors) and not to Seller's shareholders in respect of any decision of the type described in the preceding sentence. In the event an Independent Director resigns or otherwise ceases to be a director of Seller, there shall be selected a replacement Independent Director who shall not be an individual within the proscriptions of the first sentence of this clause (ii) or any individual who has any other type of professional relationship with any Amphenol Person or any of its Affiliates or any management personnel of any such Person or Affiliate and who shall be (x) a tenured professor at a business or law school, (y) a retired judge or (z) an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director; (iii) No Independent Director shall at any time serve as a trustee in bankruptcy for any Amphenol Person; (iv) Any employee, consultant or agent of Seller will be compensated from Seller's own bank accounts for services provided to Seller except as provided herein in respect of Servicer's Fee. Seller will engage no agents other than a Servicer for the Receivables, which Servicer will be fully compensated for its services to Seller by payment of the Servicer's Fee; (v) Seller will contract with Servicer to perform for Seller all operations required on a daily basis to service its Receivables. Seller will pay Servicer a monthly fee based on the level of Receivables being managed by Servicer. Seller will not incur any material indirect or overhead expenses for items shared between Seller and any Amphenol Person which are not reflected in the Servicer's Fee. To the extent, if any, that Seller and any Amphenol Person share items of expenses not reflected in the Servicer's Fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered, it being understood that Amphenol shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents and the Liquidity Agreement, including, without limitation, legal, commitment, agency and other fees; Receivables Purchase Agreement - 32 (vi) Seller's operating expenses will not be paid by any Amphenol Person unless Seller shall have agreed in writing with such Amphenol Person to reimburse such Amphenol Person for any such payments; (vii) Seller will have its own separate mailing address and stationery; (viii) Seller's books and records will be maintained separately from those of every other Amphenol Person; (ix) Any financial statements of any Amphenol Person which are consolidated to include Seller will contain detailed notes clearly stating that Seller is a separate corporate entity and has sold ownership interests in Seller's accounts receivable; (x) Seller's assets will be maintained in a manner that facilitates their identification and segregation from those of any other Amphenol Person; (xi) Seller will strictly observe corporate formalities in its dealings with each Amphenol Person, and funds or other assets of Seller will not be commingled with those of any Amphenol Person. Seller shall not maintain joint bank accounts or other depository accounts to which any Amphenol Person (other than Amphenol in its capacity as Servicer or any other Originator in its capacity as a Servicer Person) has independent access. None of Seller's funds will at any time be pooled with any funds of any other Amphenol Person; (xii) Seller shall pay to the appropriate Amphenol Person the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers Seller and any other Amphenol Person, but Seller shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to any other Amphenol Person; (xiii) Seller will maintain arm's length relationships with each Amphenol Person. Any Amphenol Person that renders or otherwise furnishes services to Seller will be compensated by Seller at market rates for such services; and (xiv) Neither Seller nor any Amphenol Person will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other. (j) Post Office Boxes. Except to the extent already provided in connection with the Original RPA, within 60 days after the date hereof, Amphenol shall deliver to the Agent Receivables Purchase Agreement - 33 (with a copy for Purchaser) a certificate from an authorized officer of Amphenol to the effect that (i) the name of the renter of all post office boxes into which Collections may from time to time be mailed have been changed to the name of Seller (unless such post office boxes are in the name of the relevant Lock-box Banks) and (ii) all relevant postmasters have been notified that each of Servicer (and each Servicer Person) and the Agent are authorized to collect mail delivered to such post office boxes (unless such post office boxes are in the name of the relevant Lock-box Banks). SECTION 7.02 Reporting Requirements of Seller. From the date hereof until the first day following the Commitment Termination Date on which all Participations shall be reduced to zero and all Obligations shall have been finally and fully paid and performed, Seller will, unless the Agent shall otherwise consent in writing, furnish to the Agent the following: (a) Quarterly Financial Statements. As soon as available and in any event within 60 days after the end of each of the first three quarters of each fiscal year of Amphenol and Seller, (i) copies of (A) the unaudited consolidated balance sheet of Amphenol and its consolidated subsidiaries, and (B) the unaudited balance sheet of Seller, in each case as at the end of such quarter, together with unaudited statements of earnings, stockholders' equity and cash flows for such quarter and the portion of the fiscal year through such quarter, prepared in accordance with GAAP (subject to ordinary course audit adjustments; provided that any adjusted financial statements shall be furnished to the Agent as soon as reasonably practical thereafter) and certified by the chief financial officer, treasurer or chief accounting officer of Amphenol (such officer being herein called the "Financial Officer"), (ii) a letter from the Financial Officer certifying to the best knowledge of the Financial Officer that neither a Termination Event nor an Unmatured Termination Event has occurred and is continuing; (b) Annual Financial Statements. As soon as available and in any event within 120 days after the end of each fiscal year of each of Amphenol and Seller, a copy of (A) the consolidated balance sheet of Amphenol and its consolidated subsidiaries, and (B) the balance sheet of Seller, in each case as at the end of such fiscal year, together with the related statements of earnings, stockholders' equity and cash flows for such fiscal year, each prepared in accordance with GAAP applied consistently throughout the periods reflected therein (Amphenol's consolidated balance sheet and such related statements to be certified without any Impermissible Qualification by independent certified public accountants of nationally recognized standing, and Seller's balance sheet and such related statements to be certified by the Financial Officer); (c) Reports to Holders and Exchanges. In addition to the reports required by subsections (a) and (b) above, promptly upon the Agent's request, copies of any publicly-filed reports or other documents, including any reports or registration statements that Receivables Purchase Agreement - 34 Amphenol or Seller files with the Securities and Exchange Commission or any national securities exchange other than registration statements relating to employee benefit plans; (d) ERISA. Promptly after receiving any notice of any Reportable Event (as defined in Title IV of ERISA) with respect to any Amphenol Person that would be reasonably likely to have a Material Adverse Effect, a copy of such notice; (e) Termination Events. As soon as possible after the occurrence of, and in any event within three Business Days after the occurrence of, each Termination Event and each Unmatured Termination Event, a written statement of Seller's chief financial officer or chief accounting officer setting forth details thereof and the action that Seller proposes to take with respect thereto, in each case in reasonable detail; (f) Litigation. As soon as possible, and in any event within three Business Days of Seller's knowledge thereof, written notice of (i) any action, suit, proceeding, arbitration, regulatory or governmental investigation of the type described in Schedule 6.01(f) not previously disclosed to the Agent, and (ii) any material adverse development in previously disclosed actions, suits, proceedings, arbitrations, regulatory or governmental investigations; and (g) Other. Promptly, from time to time, such other information, documents, records or reports with respect to the Receivables or the conditions or operations, financial or otherwise, of Seller or Amphenol as the Agent may from time to time reasonably request in order to protect the interests of the Agent or Purchaser in connection with this Agreement. SECTION 7.03 Negative Covenants. From the date hereof until the date following the Commitment Termination Date on which all Participations shall be reduced to zero and all Obligations hereunder shall have been finally and fully paid and performed, Seller and Amphenol shall perform their respective Obligations under this Section 7.03, unless the Agent shall otherwise consent in writing: (a) Sales, Liens, Etc. Except as otherwise provided herein or in the Purchase and Sale Agreement, neither Seller nor Amphenol shall sell, assign (by operation of law or otherwise) or otherwise dispose of, or create or suffer to exist any Adverse Claim upon or with respect to, any Portfolio Receivable or related Contract or Related Security, any interest therein, or upon or with respect to any lock-box account to which any Collections of any Portfolio Receivable are sent, or assign any right to receive income in respect thereof. (b) Extension or Amendment of Receivables. Except as otherwise permitted in Section 8.02(c), Seller and Amphenol shall not, and Amphenol shall not permit any Originator to, extend, amend or otherwise modify in any material respect the terms of any Portfolio Receivable, or amend, modify or waive, in any material respect, any term or Receivables Purchase Agreement - 35 condition of any Contract related thereto (which term or condition relates to payment under, or the enforcement of, such Contract). (c) Change in Business or Credit and Collection Policy. Seller and Amphenol shall not, and Amphenol shall not permit any Originator to, make any change in the character of its business or materially alter its Credit and Collection Policy, which change would, in either case, be reasonably likely to have a Material Adverse Effect. (d) Change in Payment Instructions to Obligors. Add or terminate any bank as a Lock-box Bank from those listed in Exhibit 6.01(n) or make any material change in its instructions to Obligors regarding Collections or payments to be made to any Lock-box Bank, unless (i) the Agent shall have received notice of such addition, termination or change and duly executed copies of Lock-box Agreements with each new Lock-box Bank and copies of such instructions (which shall be in form and substance acceptable to the Agent) and (ii) Purchaser previously shall have consented in writing to such addition, termination or change (which consent, in the case of any such addition or termination, shall not be unreasonably withheld by Purchaser). Seller shall not add or terminate any bank as an Account Bank from those listed in Schedule 7.03(d) or make any change in its instructions regarding payments to be made by any Account Bank, unless (A) the Agent shall have received duly executed counterparts of an Account Agreement with each new Account Bank and copies of such instructions (which shall be in form and substance acceptable to the Agent) and (B) Purchaser previously shall have consented in writing to such addition, termination or change (which consent, in the case of any such addition or termination, shall not be unreasonably withheld by Purchaser). (e) Mergers, Acquisitions, Sales, etc. (i) Seller shall not: (A) be a party to any merger or consolidation, or directly or indirectly purchase or otherwise acquire, whether in one or a series of transactions, all or substantially all of the assets or any stock of any class of, or any partnership or joint venture interest in, any other Person, or sell, transfer, assign, convey or lease any of its property and assets (including, without limitation, any Receivable or any interest therein) other than pursuant to this Agreement; (B) make, incur or suffer to exist an investment in, equity contribution to, loan, credit or advance to, or payment obligation in respect of the deferred purchase price of property from any other Person, except for Permitted Investments and the Originator Notes; or (C) create any direct or indirect Subsidiary or otherwise acquire direct or indirect ownership of any equity interests in any other Person. Receivables Purchase Agreement - 36 (ii) Amphenol shall not, and shall not permit any other Originator to (unless such Originator is removed from the Purchase and Sale Agreement in accordance with the provisions thereof): (A) be a party to any merger or consolidation, except (1) a merger or consolidation involving Amphenol or an Originator where Amphenol or the Originator is the surviving corporation, or (2) a merger or consolidation among two or more Originators (including, without limitation, Amphenol), or (B) directly or indirectly sell, transfer, assign, convey or lease (1) whether in one or a series of transactions, all or substantially all of its assets, except to another Originator (including, without limitation, Amphenol), or (2) any Receivables or any interest therein (other than pursuant to this Agreement or the Purchase and Sale Agreement). (f) Restricted Payments. (i) General Restriction. Except in accordance with this Section 7.03(f), Seller shall not (A) purchase or redeem any shares of its capital stock, (B) declare or pay any Dividend or set aside any funds for any such purpose, (C) prepay, purchase or redeem any subordinated indebtedness of Seller, (D) lend or advance any funds or (E) repay any loans or advances to, for or from any other Amphenol Person. Actions of the type described in this clause (i) are herein collectively called "Restricted Payments". (ii) Types of Permitted Payments. Subject to the limitations set forth in clause (iii) below, Seller may make Restricted Payments so long as such Restricted Payments are made only to the Originators and only in one or more of the following ways: (A) Seller may make cash payments (including prepayments) on the AFC Notes in accordance with their terms; and (B) if no amounts are then outstanding under the AFC Notes, Seller may (1) declare and pay Dividends and (2) make demand loans to one or more of the Originators (so long as each such loan is evidenced by an Originator Note). (iii) Specific Restrictions. Seller may make Restricted Payments only out of funds in the Lock-box Accounts that do not represent the Purchaser's Share of any Receivables Purchase Agreement - 37 Collections (or deemed Collections). Furthermore, Seller shall not pay, make or declare: (A) any Dividend if, after giving effect thereto, Seller's Tangible Net Worth would be less than Four Million Dollars ($4,000,000); or (B) any Restricted Payment (including any Dividend) if, after giving effect thereto, any Termination Event or Unmatured Termination Event shall have occurred and be continuing. (g) Use of Seller's Share of Collections. Seller shall apply its share of Collections to make payments in the following order of priority: first, the payment of its expenses (including, without limitation, the Obligations payable to Purchaser and the Agent hereunder), second, the payment of accrued and unpaid interest on the AFC Notes, third, the payment of the outstanding principal amount of the AFC Notes, and fourth, other legal and valid corporate purposes. (h) Amendments to Certain Documents. (i) Neither Seller nor Amphenol shall, and Amphenol shall not permit any other Originator to, amend, supplement, amend and restate, or otherwise modify the Purchase and Sale Agreement, any Originator Assignment Certificate, any AFC Note, any Originator Note, the Subscription Agreement, any Lock-box Agreement, any agreement between a Lock-box Bank and Seller which is referred to in any Lock-box Agreement, or Seller's certificate of incorporation or by-laws, except (A) in accordance with the terms of such document, instrument or agreement (and, in the case of any agreement between a Lock-box Bank and Seller which is referred to in any Lock-box Agreement, in accordance with the terms of the relevant Lock-box Agreement) and (B) with the advance written consent of Purchaser and the Agent. (ii) Amphenol shall not, and it shall not permit any Amphenol Person (including Seller or any Originator) to, enter into, execute and deliver, or otherwise become bound by, any agreement, instrument, document or other arrangement that restricts the right of any Amphenol Person that is a party to this Agreement or any other Transaction Document to amend, supplement, amend and restate or otherwise modify, or to extend or renew, or to waive any right under, this Agreement or any other Transaction Document. (i) Deposits to Special Accounts. Deposit or otherwise credit, or cause or permit to be so deposited or credited by any Originator or any other Person, to any Lock-box Account or any Bank Account cash or cash proceeds other than Collections of Receivables. (j) Incurrence of Indebtedness. Seller shall not (i) create, incur or permit to exist any Indebtedness, Guaranty or liability or (ii) cause or permit to be issued for its account any Receivables Purchase Agreement - 38 letters of credit or bankers' acceptances, except for Indebtedness incurred pursuant to an AFC Note and liabilities incurred pursuant to or in connection with the Transaction Documents or otherwise permitted therein. ARTICLE VIII ADMINISTRATION AND COLLECTION SECTION 8.01 Designation of Servicer. (a) Amphenol as Initial Servicer. The servicing, administering and collection of the Receivables shall be conducted by the Person designated as servicer hereunder ("Servicer") from time to time in accordance with this Section 8.01. Until the Agent gives notice to Amphenol of the designation of a new Servicer (the "Successor Notice"), which notice may be given at any time after the occurrence and during the continuance of a Termination Event, Amphenol is hereby designated as, and hereby agrees to perform the duties and obligations of, Servicer pursuant to the terms hereof. (b) Successor Notice. Upon Amphenol's receipt of a Successor Notice, Amphenol agrees that it will terminate its activities as Servicer hereunder, and will cause each Servicer Person to terminate its activities in that capacity, in a manner that the Agent indicates will facilitate the transition of the performance of such activities to the new Servicer. The Agent, or such other Person as the Agent shall designate, shall assume each and all of the obligations of Amphenol (and each Servicer Person) to service, administer and collect such Receivables, on the terms and subject to the conditions herein set forth, and Amphenol shall use its best efforts (and shall cause each Servicer Person to use its best efforts) to assist the Agent (or its designee) in assuming such obligations. Prior to designating such Person (other than the Agent) as the new Servicer, the Agent agrees to use reasonable efforts to obtain at least two competitive bids from Persons of sound reputation that are experienced in the business of servicing portfolios of trade receivables and/or that are otherwise acceptable to the Agent and rating agencies then rating Purchaser's Commercial Paper Notes, and agrees to designate as the new Servicer such Person submitting the lowest of such bids; provided, however, that such Person's bid meets all requirements of the Agent specified in its request for such bids; and provided further, that the failure of the Agent to obtain such bids shall not adversely affect the right of the Agent to designate a new Servicer pursuant to Sections 8.01(a) and (b). (c) Subcontracts. Servicer hereby appoints, and Purchaser and the Agent hereby consent to the appointment by Servicer of, each Originator to act as a Servicer Person with respect to the portion of the Portfolio Receivables sold by such Originator to Seller; provided, that Servicer shall remain liable for the performance of all duties and obligations of Servicer pursuant to the terms of this Agreement and the other Transaction Documents. The obligations and rights of each Originator, as a Servicer Person, are set forth in certain letter agreements by and among the parties hereto and the Originators (each a "Servicer Person Letter Agreement"). Receivables Purchase Agreement - 39 (d) Servicer's Fee. Seller hereby agrees to pay to Servicer a fee (the "Servicer's Fee") for each calendar month (or portion thereof in which such Person was acting as Servicer) from and including the date hereof to but excluding the date on which all amounts payable under or in connection with this Agreement and the Purchase and Sale Agreement have been finally paid in full (and this Agreement and the Purchase and Sale Agreement shall have terminated), in an amount calculated as follows: (i) at any time when Amphenol is the Servicer, an amount equal to one-twelfth of 1% of the Unpaid Balance of the Portfolio Receivables as measured on the latest Month End Date referred to in the most recent Periodic Report; or (ii) on and after Servicer's reasonable request made at any time when Amphenol is not the Servicer, the greater of (A) an amount calculated pursuant to the foregoing clause (i) or (B) an alternative amount specified by Servicer not exceeding 110% of the aggregate costs and expenses incurred by Servicer during such calendar month in connection with performing its obligations under this Agreement and the other Transaction Documents. Such Servicer's Fee shall be paid out of the Seller's share of the Collections of Receivables, except to the extent the Servicer's Fee is expressly provided to be paid out of the Purchaser's Share of such Collections pursuant to Section 3.02(a)(iii). Accrued Servicer's Fees shall be payable at the times and in the amounts specified in Article III. In addition, on the fifteenth day of each calendar month (or, if such day is not a Business Day, on the next Business Day), Seller and Servicer shall determine whether there was an aggregate underpayment (in which case Seller shall make an appropriate additional payment to Servicer on such date) or overpayment (in which case Servicer shall make, out of the Seller's share of such Collections, an appropriate rebate to Seller on such date) of the Servicer's Fee during the most recent calendar month. SECTION 8.02 Duties of Servicer and Seller. (a) Appointment; Duties in General. Each of Seller, Purchaser and the Agent hereby appoints the Servicer, from time to time designated pursuant to Section 8.01, as its agent to enforce their respective rights and interests in and under the Portfolio Receivables, the Contracts and the Related Security. Servicer shall take or cause to be taken all such actions as may be necessary or advisable to collect each Receivable (or shall cause each Servicer Person to take or cause to be taken all such actions as may be necessary or advisable to collect each Receivable sold by it to Seller) from time to time, all in accordance with applicable laws, rules and regulations, with reasonable care and diligence, and in accordance with the Credit and Collection Policy of the applicable Originator. (b) Allocation of Collections. Servicer shall set aside for the account of Seller and Purchaser their respective allocable shares of the Collections in accordance with Article III. Receivables Purchase Agreement - 40 (c) Modification of Receivables. Servicer may adjust, and may permit each Servicer Person to adjust, in accordance with the Credit and Collection Policy of the applicable Originator, the Unpaid Balance of any Receivable of such Originator to reflect the reductions or cancellations described in the first sentence of Section 3.04(a). Servicer shall, or shall cause the applicable Servicer Person to, write off Receivables from time to time in accordance with the Credit and Collection Policy of the applicable Originator. (d) Documents and Records. Amphenol shall cause each Originator to deliver to Servicer, and Servicer shall hold in trust for Seller and Purchaser in accordance with their respective interests, all documents, instruments and records (including, without limitation, computer tapes or disks and Contracts) that evidence or relate to Receivables of such Originator, except that an Originator shall not be required to make such a delivery to the extent that (but only so long as) such Originator is acting as a Servicer Person pursuant to this Agreement. (e) Certain Duties to Seller. Servicer shall, as soon as practicable following receipt, turn over to Seller that portion of Collections of Receivables representing Seller's undivided interest therein, less, in the event Amphenol is no longer the Servicer, all reasonable and appropriate out-of-pocket costs and expenses of Servicer of servicing, collecting and administering the Receivables to the extent not covered by the Servicer's Fee received by it. (f) Authorization to Act as Seller's Agent. Seller hereby appoints Servicer (but only for so long as Amphenol is the Servicer in the case of clauses (i), (v) and (vi) below) as its agent for the following purposes: (i) selecting the amount of each requested Purchase, (ii) specifying accounts to which payments are to be made to Seller, (iii) making transfers among, deposits to and withdrawals from the Lock-box Accounts and other deposit accounts of Seller for the purposes described in the Transaction Documents, (iv) arranging payment by Seller of all fees, expenses, other Obligations and other amounts payable under the Transaction Documents, (v) consenting to assignments and delegations by Purchaser and (vi) causing the reduction of the Investment pursuant to Section 3.04(c). Seller irrevocably agrees that (A) it shall be bound by all actions taken by Servicer pursuant to the preceding sentence, and (B) that Purchaser, the Agent, the Lock-box Banks, the Account Banks and the banks holding all other deposit accounts of Seller are entitled to accept submissions, determinations, selections, specifications, transfers, deposits and withdrawal requests, and payments from Servicer on behalf of Seller. (g) Termination. The authorization of Servicer (and each Servicer Person) under this Agreement (and, in the case of the Servicer Persons, under the Purchase and Sale Agreement) shall terminate upon receipt by the Agent, after the Commitment Termination Date, of an amount equal to (i) the Aggregate Investment plus (ii) accrued Earned Yield for each Participation plus (iii) all other amounts owed to Purchaser and the Agent and (unless otherwise agreed to by Servicer and the Agent) to Servicer under this Agreement. Receivables Purchase Agreement - 41 (h) Agreement Not to Resign. Amphenol acknowledges that Purchaser and the Agent have relied on Amphenol's agreement to act as the Servicer hereunder in their respective decisions to execute and deliver the Transaction Documents. In recognition of the foregoing, Amphenol agrees not to resign as Servicer voluntarily, or to permit any other Originator to resign as a Servicer Person voluntarily, unless Amphenol or such Originator is not permitted by law to serve in such capacity, as evidenced by an opinion of counsel to such effect, which opinion shall be satisfactory in form and substance to the Agent. SECTION 8.03 Rights of the Agent. (a) Notice to Obligors. At any time after the occurrence of and during the continuation of a Termination Event, the Agent may notify the Obligors of Receivables, or any of them, of the Purchaser's ownership of Participations. (b) Notice to Lock-box Banks. At any time following the earlier to occur of (i) the occurrence of (and during the continuation of) a Termination Event, or (ii) any of the Conditions Precedent shall not be satisfied and the Agent shall have requested implementation of the settlement procedures set forth in Section 3.03, the Agent is hereby authorized to give notice to the Lock-box Banks, as provided in the Lock-box Agreements, of the transfer to the Agent (for the benefit of Purchaser) of dominion and control over the Lock-box Accounts to which the Obligors of Receivables make payments. Seller hereby transfers to the Agent (for the benefit of Purchaser), effective when the Agent shall give notice to the Lock-box Banks as provided in the Lock-box Agreements, the exclusive dominion and control over such Lock-box Accounts, and shall take any further action that the Agent may reasonably request to effect such transfer. The Agent is hereby authorized to give notice to the Account Banks, as provided in the Account Agreements, of the transfer of dominion and control over the Collection Account and the Liquidation Account to the Agent (for the benefit of Purchaser). Seller hereby transfers to the Agent (for the benefit of Purchaser), effective when the Agent shall give notice to the Account Banks as provided in the Account Agreements, the exclusive dominion and control over such Accounts, and shall take any further action that the Agent may reasonably request to effect such transfer. (c) Rights on Servicer Transfer. At any time following the designation of a Servicer other than Amphenol pursuant to Section 8.01: (i) The Agent may direct any Obligors of Receivables to pay all amounts payable under any Receivable directly to the Agent or its designee. (ii) The Agent may direct any Originator to make payment of all amounts payable to Seller under any Transaction Document (other than any Originator Note) to which such Originator is a party directly to the Agent or its designee. Receivables Purchase Agreement - 42 (iii) Seller shall, at the Agent's request and at Seller's expense, give notice of Purchaser's ownership of Participations to each Obligor and direct that payments be made directly to the Agent or its designee. (iv) Seller and Amphenol shall, at the Agent's request, (A) assemble (and, in the case of Amphenol, cause each other Originator to assemble) all of the documents, instruments and other records (including, without limitation, computer programs, tapes and disks and Contracts) which evidence the Receivables, and the related Contracts and Related Security, or which are otherwise necessary or desirable to collect such Receivables, and shall make the same available to the Agent at a place selected by the Agent or its designee, (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Receivables in a manner acceptable to the Agent and shall, promptly upon receipt, remit all such cash, checks and instruments, duly endorsed or with duly executed instruments of transfer, to the Agent or its designee, and (C) permit (and Amphenol agrees to cause each Originator to permit), any successor Servicer and its agents, employees and assignees access to its respective facilities and its books, records, documents and instruments (including, without limitation, computer programs, tapes and disks and Contracts) related to Receivables. (v) Each of Seller, Amphenol and Purchaser hereby authorizes the Agent to take any and all steps in Seller's name and on behalf of Seller, Amphenol or Purchaser which are necessary, in the reasonable determination of the Agent, to collect all amounts due under any and all Receivables, including, without limitation, indorsing Seller's or any Originator's name on checks and other instruments representing Collections and enforcing such Receivables, the related Contracts and the Related Security therefor. (vi) Seller hereby irrevocably appoints the Agent to act as Seller's attorney-in-fact, with full authority in the place and stead of Seller and in the name of Seller or otherwise, to take any action and to execute any instrument that the Agent, in its reasonable determination, may deem necessary to accomplish the purposes of this Agreement, including, without limitation: (A) to ask, demand, collect, sue for, recover, compromise, receive and give acquittance and receipts for moneys due and to become due under or in respect of any Receivable; (B) to receive, indorse and collect any drafts or other instruments, documents and chattel paper related to the Receivables or the Related Security, or constituting Collections; (C) to file any claims or take any action or institute any proceedings which Purchaser, in its reasonable determination, may deem necessary for the collection of Receivables Purchase Agreement - 43 any of the Receivables or otherwise to enforce the rights of the Agent and Purchaser with respect to any of the Receivables; and (D) to perform the affirmative obligations of Seller under any Transaction Document (other than the Originator Notes). Seller hereby acknowledges, consents and agrees that the power of attorney granted pursuant to this Section 8.03(c) is irrevocable and coupled with an interest. SECTION 8.04 Further Action Evidencing Purchases. Seller agrees that from time to time, at its expense, it will promptly execute and deliver all further instruments and documents, and take all further action, that the Agent may reasonably request in order to perfect, protect or more fully evidence the Participations purchased by Purchaser hereunder, or to enable any of Purchaser, any holder of a Certificate or the Agent to exercise or enforce any of their respective rights hereunder or under their Certificates. Without limiting the generality of the foregoing, Seller will upon the request of the Agent: (i) execute and file such financing or continuation statements, or amendments thereto or assignments thereof, and such other instruments or notices as may be necessary or appropriate; (ii) mark conspicuously each Contract evidencing each Portfolio Receivable, mark its master data processing records evidencing such Portfolio Receivables and related Contracts with the legend described in Section 5.01(o); and (iii) deliver to Purchaser all letters of credit supporting the payment of any Portfolio Receivable, together with all necessary instruments of transfer or assignment. Seller hereby authorizes the Agent to file one or more financing or continuation statements, and amendments thereto and assignments thereof, relative to all or any of the Portfolio Receivables and the Related Security now existing or hereafter arising in the name of Seller. If Seller fails to perform any of its agreements or obligations under this Agreement, the Agent may (but shall not be required to) itself perform, or cause performance of, such Agreement or obligation, and the expenses of the Agent incurred in connection therewith shall be payable by Seller as provided in Section 12.01. SECTION 8.05 Application of Collections. Any payment by an Obligor in respect of any indebtedness owed by it to Seller shall, except as otherwise specified by such Obligor or otherwise required by contract or law and unless otherwise instructed by the Agent, be applied as a Collection of any Portfolio Receivable or Receivables of such Obligor to the extent of any amounts then due and payable thereunder before being applied to any other indebtedness of such Obligor. Receivables Purchase Agreement - 44 ARTICLE IX TERMINATION EVENTS SECTION 9.01 Termination Events. A termination event ("Termination Events") shall occur if any of the following events occurs: (a)(i) Servicer (if Amphenol) shall fail to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (ii)) and such failure shall remain unremedied for three Business Days, or (ii) Servicer (if Amphenol) or Seller shall fail to make any payment or deposit to be made by it hereunder when due; (b) Any representation or warranty made or deemed to be made by Seller, Servicer, Amphenol or any Originator (or any of their respective officers) under or in connection with any Transaction Document or any Periodic Report or Liquidation Statement or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made or deemed made; (c) Seller, Amphenol or any other Originator shall fail to perform or observe in any material respect any other term, covenant or agreement contained in this Agreement or in any other Transaction Document on its part to be performed or observed and any such failure shall remain unremedied for 30 Business Days after written notice thereof shall have been given by the Agent to Seller; (d) A default shall have occurred under any agreements, indentures or instruments under which Seller, Amphenol or any Material Subsidiary of Amphenol has outstanding indebtedness for borrowed money (including guarantees of such indebtedness but excluding non-recourse indebtedness) in excess of $20 million in principal amount and: (i) such indebtedness is already due and payable in full or (ii) such default has resulted in the acceleration of the maturity of such indebtedness, in each case after a period of five days during which period such default shall not have been cured or such acceleration shall not have been rescinded; provided, that no "Termination Event" shall result from any acceleration of any indebtedness existing under the Original RPA due to the recapitalization of Amphenol and its subsidiaries referred to in Section 5.01(q)(i); (e) An Event of Bankruptcy shall have occurred with respect to Seller, Amphenol or any other Originator; (f) The Aggregate Pay-Out Amount shall exceed the Pay-Out Amount Limit at any time during any month and such condition shall continue to exist unremedied for two Business Days after the related Report Date with respect to such month; Receivables Purchase Agreement - 45 (g) The Default Ratio exceeds 8.0% at any time or the arithmetic mean of the Default Ratios for the most recent three calendar months exceeds 5.5%; (h) The Dilution Ratio exceeds 7.75% at any time; (i) The arithmetic mean of the Delinquency Ratios for the most recent three calendar months exceeds 9.5% at any time; (j) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Internal Revenue Code with regard to any of the assets of Seller and such lien shall not have been released within ten Business Days, or the Pension Benefit Guaranty Corporation shall, or shall indicate its intention to, file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of Seller or any Originator; (k) The warranties in Sections 6.01(i)(ii) and 6.02(i)(ii) shall not be true at any time; (l) A Change in Control shall have occurred; (m)(i) Any Transaction Document, or any ownership or other interest granted or created thereunder, shall (except in accordance with its terms), in whole or in part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of Seller, Servicer or any Originator; or (ii) Seller, Servicer, any Originator or any other Amphenol Person shall, directly or indirectly, contest in any manner such effectiveness, validity, binding nature or enforceability; (n) Seller's Tangible Net Worth shall be less than $4,000,000 for more than five (5) consecutive Business Days; or (o) a Purchase and Sale Termination Event shall have occurred and be continuing. SECTION 9.02 Remedies. (a) Optional Termination. Upon the occurrence of a Termination Event (other than a Termination Event described in Section 9.01(e), (g), (h) or (i)), the Agent shall, at the request, or may with the consent, of Purchaser, by notice to Seller declare the Commitment Termination Date to have occurred. (b) Automatic Termination. Upon the occurrence of a Termination Event described in Section 9.01(e), (g), (h) or (i) the Commitment Termination Date shall be deemed to have occurred automatically; provided, however, that with respect to any proceeding instituted against Seller pursuant to 11 U.S.C. ss.303 (an "Involuntary Federal Proceeding"), the settlement procedures described in Section 3.03 shall become applicable upon the commencement of such Proceeding and Receivables Purchase Agreement - 46 no further Purchases or Reinvestments of Collections shall be made; and provided further, that if such Involuntary Federal Proceeding is dismissed within 60 days after its commencement, and if no other Termination Event has occurred, then following such dismissal the Commitment shall be reinstated as if the Commitment Termination Date had not occurred upon the commencement of such Involuntary Federal Proceeding. (c) Additional Remedies. Upon any termination of the Commitment pursuant to this Section 9.02, the Agent and Purchaser, in addition to all other rights and remedies under this Agreement or otherwise, shall have all other rights and remedies provided under the UCC of each applicable jurisdiction and other applicable laws, which rights shall be cumulative. Without limiting the foregoing or the general applicability of Article XI hereof, (i) the occurrence of a Termination Event shall not deny Purchaser any remedy in addition to termination of the Commitment to which Purchaser may be otherwise appropriately entitled, whether at law or in equity, and (ii) Purchaser may elect to assign any Participation owned by Purchaser to an assignee following the occurrence of any Termination Event. ARTICLE X THE AGENT SECTION 10.01 Authorization and Action. Purchaser hereby appoints Nesbitt Burns as its Agent under and for purposes of each Transaction Document, and authorizes the Agent to act on its behalf under each Transaction Document and to exercise such powers hereunder and thereunder as are delegated to the Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. SECTION 10.02 Agent's Reliance, Etc. Neither the Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or the Agent under or in connection with this Agreement (including, without limitation, the Agent's servicing, administering or collecting Portfolio Receivables as Servicer pursuant to Section 8.01), except for its or their own gross negligence or willful misconduct. Without limiting the generality of the foregoing, the Agent: (i) may consult with legal counsel (including counsel for Seller), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (ii) makes no warranty or representation to Purchaser or any holder of a Certificate and shall not be responsible to Purchaser or any holder of a Certificate for any statements, warranties or representations made in or in connection with this Agreement or any other Transaction Document; (iii) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or any other Transaction Document on the part of Seller or any Originator or to inspect the property (including the books and records) of Seller or any Originator; (iv) shall not be responsible to Purchaser or any holder of a Certificate for the due Receivables Purchase Agreement - 47 execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Transaction Document, the Certificates or any other instrument or document furnished pursuant hereto; and (v) shall incur no liability under or in respect of this Agreement or any other Transaction Document by acting upon any notice (including notice by telephone), consent, certificate or other instrument or writing (which may be by telex) believed by it to be genuine and signed or sent by the proper party or parties. ARTICLE XI ASSIGNMENT OF PURCHASER'S INTEREST SECTION 11.01 Restrictions on Assignments. None of Amphenol, Seller or Purchaser may assign its rights hereunder or any interest herein without the prior written consent of the Agent, and, subject to Section 9.02(c), Purchaser may not assign any Participation (or portion thereof) to any Person without the prior written consent of Seller; except that (i) Purchaser may assign a Participation (or any portion thereof) to the Surety Bond Provider pursuant to the Insurance Agreement, and (ii) Purchaser may assign and grant a security interest in each Participation, and in all Purchaser's rights under this Agreement, to Bank of Montreal Trust Company, as Collateral Trustee, and any successor in such capacity, to secure Purchaser's obligations under or in connection with the Commercial Paper Notes, the Liquidity Agreement, the Insurance Agreement, the Depositary Agreement (as defined in the Liquidity Agreement) and certain other obligations of Purchaser incurred in connection with the funding of the Purchases and Reinvestments hereunder, which assignment and grant of a security interest shall not be considered an "assignment" for purposes of the second sentence of this Section 11.01 or, prior to the enforcement of such security interest, for purposes of any other provision of this Agreement; provided, that, notwithstanding any such assignment permitted pursuant to clause (i) or (ii), the Purchaser's obligations hereunder shall remain unchanged. Within five Business Days after notice of such proposed assignment, Seller agrees to advise the Agent of its consent or non-consent thereto. SECTION 11.02 Evidence of Assignment; Endorsement on Certificate. Any assignment of any Participation (or portion thereof) may be evidenced by an instrument of assignment in the form of Exhibit 11.01 or by such other instrument(s) as may be satisfactory to Purchaser, the Agent and the assignee. Purchaser hereby authorizes the Agent to, and the Agent agrees that it shall, endorse the Certificate to reflect any assignments made pursuant to this Article XI or otherwise. SECTION 11.03 Rights of Assignee. Upon the assignment of any Participation (or portion thereof) in accordance with this Article XI, to an assignee (other than the Surety Bond Provider or the Collateral Trustee), such assignee shall have all of the rights of Purchaser hereunder with respect to such Participation (or portion thereof) and all references to Purchaser (including in Section 4.02) shall be deemed to apply to such assignee to the extent of its interest in the related Investment and the related Collection. Receivables Purchase Agreement - 48 SECTION 11.04 Rights of Collateral Trustee. Seller hereby agrees that, upon notice to Seller, the Collateral Trustee may exercise all the rights of Agent hereunder with respect to all Participations (or portions thereof) and Collections with respect thereto that are owned by Purchaser. Without limiting the foregoing, upon such notice the Collateral Trustee: (a) may request Servicer to segregate the Purchaser's Share of Collections from the Seller's allocable share, and from each other's allocable share, in accordance with Section 8.02(b), (b) may give the Successor Notice pursuant to Section 8.01(a), (c) may give or require the Agent to give notice to the Lock-box Banks as referred to in Section 8.03(b), and (d) may direct the Obligors of Portfolio Receivables to make payments in respect thereof directly to an account designated by it to the same extent as the Agent might have done. ARTICLE XII INDEMNIFICATION SECTION 12.01 Indemnities by Seller and Amphenol. (a) General Indemnity. Without limiting any other rights which any such Person may have hereunder or under applicable law, Seller hereby agrees, and Amphenol jointly and severally with Seller, hereby agrees, to indemnify each of the Agent, Purchaser, Nesbitt Burns, the Banks, the Surety Bond Provider, their respective Affiliates, successors, transferees and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each an "Indemnified Party"), forthwith on demand, from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to the failure of Seller, Amphenol or any Originator to perform its obligations under any Transaction Document or arising out of claims asserted against an Indemnified Party relating to the transactions contemplated thereby or the use of proceeds therefrom, including (without limitation) in respect of the ownership or funding of a Participation or in respect of any Receivable or any Contract, excluding, however, (x) Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party, (y) recourse (except as otherwise specifically provided in this Agreement) for Defaulted Receivables or (z) any tax based upon or measured by net income or gross receipts. Without limiting the foregoing, Seller agrees, and Amphenol jointly and severally with Seller agrees, to indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to: (i) the transfer by Seller of any interest in any Receivable other than a Participation; (ii) the breach of any representations or warranties made by Seller, Amphenol (or any of their respective officers) under or in connection with this Agreement, any Periodic Report, Purchase Report or Liquidation Statement or any other information or report delivered by Receivables Purchase Agreement - 49 Seller or Servicer pursuant hereto which shall have been false or incorrect in any material respect when made or deemed made; (iii) the failure by Seller, Amphenol or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or the related Contract, or the nonconformity of any Receivable or the related Contract with any such applicable law, rule or regulation; (iv) the failure to vest and maintain vested in Purchaser an undivided percentage ownership interest, to the extent of each Participation owned by it hereunder, in the Receivables in, or purporting to be in, the Portfolio, free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of Purchaser or the Agent, whether existing at the time of the Purchase of such Participation or at any time thereafter; (v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Portfolio, whether at the time of any Purchase, Reinvestment or any subsequent time; (vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable in, or purporting to be in, the Portfolio (including, without limitation, a defense based on such Receivable's or the related Contract's not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services; (vii) any failure of Amphenol, as Servicer or otherwise, to perform its duties or obligations in accordance with the provisions of Article VIII; (viii) any products liability claim arising out of or in connection with merchandise or services that are the subject of any Portfolio Receivable; or (ix) any tax or governmental fee or charge (other than any tax upon or measured by net income), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of any Participation, or other interest in the Portfolio Receivables or in any goods which secure any such Portfolio Receivables. (b) Contribution. If for any reason the indemnification provided above in this Section 12.01 is unavailable to an Indemnified Party or is insufficient to hold an Indemnified Party harmless, then Receivables Purchase Agreement - 50 Seller and Amphenol shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and Seller and Amphenol on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations. ARTICLE XIII SECURITY INTEREST SECTION 13.01 Grant of Security Interest. To secure the prompt payment and performance of all obligations of Seller arising in connection with this Agreement, the Certificate and each other Transaction Document, whether now or hereafter existing, due or to become due, direct or indirect, or absolute or contingent, including, without limitation, all Indemnified Amounts, payments on account of Collections received or deemed to be received and fees, Seller hereby assigns and grants to Purchaser a first priority security interest in all of Seller's right, title and interest in, to and under all of the following, whether now or hereafter existing: (a) all of Seller's rights, remedies, powers and privileges under, or in respect of, the Purchase and Sale Agreement (other than under, or in respect of, the Originator Notes), (b) all Lock-box Accounts, the Collection Account, the Liquidation Account, all funds on deposit in each of the foregoing accounts and all certificates and instruments, if any, from time to time evidencing such accounts and funds on deposit therein, all investments made with such funds, all claims thereunder or in connection therewith, and all interest, dividends, moneys, instruments, securities and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the foregoing, and (d) all proceeds and amounts received or receivable by Seller under any or all of the foregoing. This Agreement shall constitute a security agreement under applicable law with regard to the security interest granted pursuant to this Section 13.01. SECTION 13.02 Further Assurances. The provisions of Section 8.04 shall apply to the security interest granted under Section 13.01 as well as to the Purchases and all Participations hereunder. SECTION 13.03 Remedies. Upon the occurrence of a Termination Event, Purchaser shall have, with respect to the collateral granted pursuant to Section 13.01, and in addition to all other rights and remedies available to Purchaser or the Agent under this Agreement or other applicable law, all the rights and remedies of a secured party upon default under the UCC. Receivables Purchase Agreement - 51 ARTICLE XIV MISCELLANEOUS SECTION 14.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement nor consent to any departure by Seller or Amphenol therefrom shall in any event be effective unless the same shall be in writing and signed by (i) Seller, Amphenol, the Agent and Purchaser (with respect to an amendment) or (ii) the Agent and Purchaser (with respect to a waiver or consent by them) or Seller or Amphenol (as applicable) (with respect to a waiver or consent by them), as the case may be, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment (other than an extension of the Scheduled Commitment Termination Date) shall be effective unless the rating agencies then rating Purchaser's Commercial Paper Notes shall have issued a written statement that such amendment will not result in a downgrade or withdrawal of the rating of such Commercial Paper Notes. SECTION 14.02 Notices, Etc. All notices and other communications provided for hereunder shall, unless otherwise stated herein, be in writing (including facsimile communication) and shall be personally delivered or sent by facsimile (to be followed by mail) to the intended party at the address or facsimile number of such party set forth under its name on the signature pages hereof or at such other address or facsimile number as shall be designated by such party in a written notice to the other parties hereto. All such notices and communications shall be effective, (i) if personally delivered, when received, and (ii) if transmitted by facsimile, when sent, receipt confirmed by telephone or electronic means, except that notices and communications pursuant to Article I shall not be effective until received. SECTION 14.03 No Waiver; Cumulative Remedies. No failure on the part of the Agent, any Affected Party, any Indemnified Party, Purchaser or any other holder of any Participation (or any portion thereof) to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law. SECTION 14.04 Binding Effect; Assignability. This Agreement shall be binding upon and inure to the benefit of Seller, Amphenol, the Agent and Purchaser and their respective successors and assigns, and the provisions of Section 4.02 and Article XII shall inure to the benefit of the Affected Parties and the Indemnified Parties, respectively, and their respective successors and assigns; provided, however, that nothing in the foregoing shall be deemed to authorize any assignment not permitted in Section 11.01. This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms, and shall remain in full force and effect until such time, after the Commitment Termination Date, as all Participations shall have been reduced to zero and all Obligations shall have been finally and fully paid and performed. The rights and remedies Receivables Purchase Agreement - 52 with respect to any breach of any representation and warranty made by Seller or Amphenol pursuant to Article VI and the provisions of Article XII and Sections 4.02, 14.06 and 14.07 shall be continuing and shall survive any termination of this Agreement. SECTION 14.05 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE INTERESTS OF PURCHASER IN THE RECEIVABLES, OR REMEDIES HEREUNDER IN RESPECT THEREOF, ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK. SECTION 14.06 Costs, Expenses and Taxes. In addition to its obligations under Article XII, Seller and Amphenol, jointly and severally, agree to pay on demand: (a)(i) all costs and expenses of Purchaser, the Agent, Nesbitt Burns and Bank of Montreal (including, without limitation, the reasonable fees and expenses of counsel thereof) in connection with (A) the preparation, execution and delivery of this Agreement, the Certificate, the other Transaction Documents and the Liquidity Agreement, (B) the preparation, execution and delivery of any waiver, amendment or other modification to this Agreement, any of the Transaction Documents and, to the extent caused by any such waiver, amendment or modification, any waiver, amendment or other modification to the Liquidity Agreement, and in each case all related certificates and other documents, and (C) the enforcement of this Agreement, the Certificate and the other Transaction Documents or any claim of breach of contract, breach of warranty or any other breach of this Agreement, the Certificate or any of the other Transaction Documents or any tort claim relating to any of the foregoing, and (ii) all costs and expenses of the Surety Bond Provider (including, without limitation, the reasonable fees and expenses of its counsel) in connection with the circumstance described in clause (C) above; and (b) all stamp and other taxes and fees payable or determined to be payable in connection with the execution, delivery, filing and recording of this Agreement, the Certificates or the other Transaction Documents, and agrees to indemnify each Indemnified Party against any liabilities with respect to or resulting from any delay in paying or omission to pay such taxes and fees. SECTION 14.07 No Proceedings. Each of Seller, Amphenol, the Agent and Nesbitt Burns hereby agree that they will not institute against Purchaser, or join any other Person in instituting against Purchaser, any insolvency proceeding (namely, any proceeding of the type referred to in the definition of Event of Bankruptcy) so long as any Commercial Paper Notes issued by Purchaser shall be outstanding or there shall not have elapsed one year plus one day since the last day on which any such Commercial Paper Notes shall have been outstanding. Receivables Purchase Agreement - 53 SECTION 14.08 No Recourse to Certain Persons. No recourse under any obligation, covenant or agreement of Purchaser contained in this Agreement shall be had against any stockholder, employee, officer, director, affiliate or incorporator of Purchaser; provided, however, that nothing in this Section 14.08 shall relieve any of the foregoing persons from any liability which such Person may otherwise have for its gross negligence or willful misconduct, it being understood, however, that recourse by the Seller to any of the foregoing persons in the event of any such Person's gross negligence or willful misconduct shall be limited to the assets of Purchaser. SECTION 14.09 Confidentiality. Each of the Purchaser and the Agent and each of its respective successors and assigns hereby agrees that it will maintain and cause its respective employees and Affiliates to maintain the confidentiality of all non-public information with respect to Seller, Amphenol and any other Originator and each of their respective businesses obtained by any such party in connection with the exercise of its rights pursuant to Section 7.01(c), except (i) as may be required or appropriate in communications with its respective independent public accountants, legal advisors or with independent financial rating agencies, (ii) as may be required or appropriate in any report, statement or testimony submitted to any municipal, state or Federal regulatory body having or claiming to have jurisdiction over it, (iii) as may be required or appropriate in response to any summons or subpoena or in connection with any litigation or similar proceeding, (iv) as may be required by or in order to comply with any law, order, regulation or ruling, and (v) to any Bank, the Surety Bond Provider, any dealer or placement agent for Purchaser's Commercial Paper Notes (only as to the Periodic Reports), and any actual or potential assignee of, or participants in, any of the rights or obligations of Purchaser, any Bank, the Surety Bond Provider or the Agent; provided, that such Person has been informed of and has agreed to the foregoing confidentiality restrictions. SECTION 14.10 Submission to Jurisdiction. EACH PARTY HERETO HEREBY IRREVOCABLY (a) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ILLINOIS OR UNITED STATES FEDERAL COURTS SITTING IN CHICAGO, ILLINOIS, OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY TRANSACTION DOCUMENT; (b) AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE OR UNITED STATES FEDERAL COURT; (c) WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING; (d) IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES OF SUCH PROCESS TO SUCH PERSON AT ITS ADDRESS SPECIFIED IN SECTION 14.02; AND (e) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS SECTION 14.10 SHALL AFFECT ANY PARTY'S RIGHT TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING ANY Receivables Purchase Agreement - 54 ACTION OR PROCEEDING AGAINST ANY PARTY OR ITS RESPECTIVE PROPERTY IN THE COURTS OF ANY OTHER JURISDICTIONS. SECTION 14.11 Waiver of Jury Trial. EACH PARTY HERETO WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER OR RELATING TO THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, AND AGREES THAT (a) ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY AND (b) ANY PARTY HERETO (OR ANY ASSIGNEE OR THIRD PARTY BENEFICIARY OF THIS AGREEMENT) MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF ANY OTHER PARTY OR PARTIES HERETO TO WAIVER OF ITS OR THEIR RIGHT TO TRIAL BY JURY. SECTION 14.12 Integration. This Agreement and the other Transaction Documents contain a final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and shall constitute the entire Agreement among the parties hereto with respect to the subject matter hereof, superseding all prior oral or written understandings. SECTION 14.13 Captions and Cross References. The various captions (including, without limitation, the table of contents) in this Agreement are included for convenience only and shall not affect the meaning or interpretation of any provision of this Agreement. References in this Agreement to any underscored Section or Exhibit are to such Section or Exhibit of this Agreement, as the case may be. Appendix A and the Exhibits hereto are hereby incorporated by reference into and made a part of this Agreement. SECTION 14.14 Execution in Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same Agreement. [Signature pages begin on next page] Receivables Purchase Agreement - 55 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written. AMPHENOL FUNDING CORP., as Seller By: ---------------------------------------- Name: ------------------------------------ Title: ------------------------------------ 358 Hall Avenue Wallingford, Connecticut 06492 Attention: Treasurer Facsimile No.: (203) 265-8628 AMPHENOL CORPORATION, individually and as initial Servicer By: ---------------------------------------- Name: ------------------------------------ Title: ------------------------------------ 358 Hall Avenue Wallingford, Connecticut 06492 Attention: Treasurer Facsimile No.: (203) 265-8628 POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION, as Purchaser By: ---------------------------------------- Name: ------------------------------------ Title: ------------------------------------ c/o Broad Street Contract Services, Inc. Two Wall Street New York, New York 10005 NESBITT BURNS SECURITIES, INC., as Agent By: ---------------------------------------- Name: ------------------------------------ Title: ------------------------------------ 20th Floor East 111 West Monroe Street Chicago, Illinois 60603 Attention: Kevin Gibbons Telephone: (312) 461-5542 Facsimile No.: (312) 293-4908 Schedule 6.01(f) to Receivables Purchase Agreement DESCRIPTION OF PROCEEDINGS Amphenol Funding Corporation NONE Amphenol Corporation NONE Amphenol Interconnect Products Corporation NONE Times Fiber Communications, Inc. NONE Pyle National Inc. NONE The Sine Companies, Inc. NONE Schedule 6.01(f)-1 Schedule 6.01(m) to Receivables Purchase Agreement AMPHENOL CORPORATION LIST OF OFFICES WHERE RECORDS ARE KEPT
Name Division/Subsidiary Address - ---- ------------------- ------- Amphenol Corporation Subsidiary 358 Hall Avenue, Wallingford, CT 06492-7530 Amphenol Interconnect Subsidiary 20 Valley Street, Endicott, NY 13760 Products Corporation Amphenol - Aerospace Operations Division 40-60 Delaware St., Sidney, NY 13838-1395 (f/k/a Bendix Connector Operations) Amphenol Fiber Optic Products Division 1925A Ohio Street, Lisle, IL 60532 Pyle-National, Inc. Subsidiary 1334 N. Kostner Avenue, Chicago, IL 60651 Amphenol Communications & Network Division One Kennedy Avenue, Danbury, CT 06810 Products Division (f/k/a RF/Microwave Operations) Amphenol Spectra Strip/ITD Division 720 Sherman Avenue, Hamden, CT 06514 Times Fiber Communications, Inc. Subsidiary 358 Hall Avenue, Wallingford, CT 06492-7530 Times Fiber Communications, Inc. Subsidiary Route 2, Chatham Industrial Park, Chatham, VA 24531 The Sine Companies, Inc. Subsidiary 25325 Joy Boulevard, Mt. Clemens, MI 48046-2336
Schedule 6.01(m)-1 Schedule 6.01(n) to Receivables Purchase Agreement AMPHENOL CORPORATION SUMMARY OF LOCKBOX ACCOUNT NUMBERS BANK A/C # LOCKBOX # ---- ----- --------- 1. AAO Northern Trust 963445 92386 Floor B-11 50 South LaSalle Street Chicago, IL 60675 2. AAO Wells Fargo 4159259282 7628 P.O. Box 63020 San Francisco, CA 94163 3. AAO NationsBank 0180744946 840690 600 Peachtree Street Atlanta, GA 30308 4. FOP Bank of America - Illinois 7377169 98291 20th Floor Jackson 231 South LaSalle Street Chicago, IL 60697 5. CNP Bank of America - Illinois 7164769 96144 20th Floor Jackson 231 South LaSalle Street Chicago, IL 60697 6. CNP Fleet 1522434 840 777 Main Street Hartford, CT 06115 7. SS Fleet 9369245973 152 777 Main Street Hartford, CT 06115 8. TFC Fleet 0000227608 1701 One Federal Street Boston, MA 02211 Schedule 6.01(n)-1 BANK A/C # LOCKBOX # ---- ----- --------- 9. AIPC Fleet 1522450 825 777 Main Street Hartford, CT 06115 10. AIPC Wells Fargo 4159259290 7629 P.O. Box 63020 San Francisco, CA 94163 11. P/N Northern Trust 4103327 92616 Floor B-11 50 South LaSalle Street Chicago, IL 60675 12. SINE NBD Bank 0033820-44 78139 P.O. Box 116A Detroit, MI 48232 Schedule 6.01(n)-2 Schedule 6.01(r) to Receivables Purchase Agreement TRADE NAMES AND CORPORATE REORGANIZATIONS Legal Entity Trade Names - ------------ ----------- Amphenol Corporation Amphenol Corporation Amphenol RF Amphenol Products Bendix Connector Operations Spectra-Strip Amphenol Amphenol Aerospace Operations Amphenol Communication & Network Products AAO Amphenol FOP Amphenol Fiber Optic Products Amphenol Interconnect Products Amphenol Interconnect Products Corporation Corporation Amphenol Products Amphenol Amphenol Endicott Endicott AIPC Pyle-National, Inc. Pyle-National, Inc. Pyle Times Fiber Communications, Times Fiber Communications, Inc. Inc. Times Fiber Communications Times Times Fiber TFC The Sine Companies, Inc. The Sine Companies, Inc. Sine Connector Corporation Sine Aaxico Tri-Mate Sine Products Company Schedule 6.01(r)-1 Sine Electro-Mold, Inc. Mil-Specialists, Inc. Amphenol Funding Corp. Amphenol Funding Corp. AFC From and after December 3, 1988, none of Amphenol Funding Corporation, Amphenol Corporation, Amphenol Interconnect Products Corporation, Pyle-National, Inc. and Times Fiber Communications, Inc. has been the subject of any merger or other corporate reorganization. From and after December 31, 1992, the Sine Companies, Inc. has not been the subject of any merger or other corporate reorganization except as follows: Amphenol Corporation has entered into an Agreement and Plan of Merger, dated as of January 23, 1997, with NXS Acquisition Corp. ("NXS"), a wholly-owned subsidiary of KKR 1996 Fund L.P., pursuant to which approximately 90% of the outstanding shares of Amphenol Corporation's Class A common stock will be purchased by NXS for $26.00 per share in cash and approximately 10% of such outstanding shares will be retained by other stockholders. Schedule 6.01(r)-2 Schedule 7.01(g) to Receivables Purchase Agreement DESCRIPTION OF CREDIT AND COLLECTION POLICY [Amphenol to provide] Schedule 7.01(g)-1 Schedule 7.03(d) to Receivables Purchase Agreement LIST OF ACCOUNT BANKS Fleet Bank One Constitution Plaza Hartford, CT 06115-1600 Collection Account ABA #011900571 A/C Amphenol Funding Corporation A/C #936-214-7297 Bankers Trust Company One Bankers Trust Plaza New York, NY 10006 Liquidation Account ABA #021001033 A/C Amphenol Funding Corporation A/C #00-237-307 Schedule 7.03(d)-1 Exhibit 1.03(a) to Receivables Purchase Agreement NOTICE OF PURCHASE -----------, ---- Nesbitt Burns Securities, Inc. 20th Floor East 111 West Monroe Street Chicago, Illinois 60603 Attention: Kevin Gibbons Ladies and Gentlemen: Reference is hereby made to the Amended and Restated Receivables Purchase Agreement, dated as of May 19, 1997 (as heretofore amended or supplemented, the "Purchase Agreement"), among Amphenol Funding Corp., ("Seller"), Amphenol Corporation, as Servicer, Pooled Accounts Receivable Capital Corporation ("Purchaser") and Nesbitt Burns Securities, Inc., as agent for Purchaser (the "Agent"). Capitalized terms used in this Purchase Notice and not otherwise defined herein shall have the meanings assigned thereto in the Purchase Agreement. This letter constitutes a Purchase Notice pursuant to Section 1.03(a) of the Purchase Agreement. Seller desires to sell a Participation on _________, ___ for a purchase price of $________. Seller requests an initial Yield Period of ___ days for such Participation. Seller hereby represents and warrants as of the date hereof, and as of the date of Purchase, as follows: (i) the representations and warranties contained in Section 6.01 of the Purchase Agreement are correct on and as of such dates as though made on and as of such dates and shall be deemed to have been made on such dates; (ii) no Termination Event or Unmatured Termination Event has occurred and is continuing, or would result from such Purchase; (iii) after giving effect to the Purchase proposed hereby, the Aggregate Investment will not exceed the Purchase Limit and the Payout Amount will not exceed the Payout Amount Limit; and (iv) the Commitment Termination Date shall not have occurred. Exhibit 1.03(a)-1 IN WITNESS WHEREOF, the undersigned has caused this Purchase Notice to be executed by its duly authorized officer as of the date first above written. AMPHENOL FUNDING CORP. By: -------------------------------- Name: ---------------------------- Title: --------------------------- Exhibit 1.03(a)-2 Exhibit 3.04(a) to Receivables Purchase Agreement FORM OF PERIODIC REPORT [Nesbitt to provide] Exhibit 3.04(a)-1 Exhibit 3.04(b) to Receivables Purchase Agreement FORM OF LIQUIDATION STATEMENT Liquidation Statement No.__ dated ____________, 19__ for Participations sold pursuant to Amended and Restated Receivables Purchase Agreement Dated as of May 19, 1997 among Amphenol Funding Corp., as Seller, Pooled Accounts Receivable Capital Corporation, as Purchaser and Nesbitt Burns Securities, Inc., as Agent Yield Period Beginning:__________ Ending:___________ The following dates within the Yield Period were Investment Reduction Days: _________________________.(1) Part I. Allocation of Collections to Participation on Investment Reduction Days A. Allocation on each Investment Reduction Day (See Schedule I for calculations.) 1. Investment Reduction Day occurring on __/__/__ $___ - -------- (1) A liquidation statement is only required for Yield Periods during which one or more Investment Reduction Days occurred. Exhibit 3.04(b)-1 2. Investment Reduction Day occurring on __/__/__(2) $___ B. Allocation on all Investment Reduction Days collectively (sum of sub-items of Part I-A) $___ C. Aggregate Earned Yield for Investment Reduction Days occurring in the Yield Period $___ D. Allocation of Investment Reduction Day Collections to reduction of Investment (lesser of (x) Part I-B minus Part I-C and (y) amount of Investment on the last day of the Settlement Period) $___ E. Allocation of Investment Reduction Day Collections to other amounts owed by Seller to Purchaser and the Agent (Part I-B minus the sum of Parts I-C and I-D) $___ F. Allocation of Investment Reduction Day Collections to Servicer's Fee (Part I-B minus the sum of Parts I-C, I-D and II-E) $___ G. Excess Collections on Investment Reduction Days (Part I-B minus the sum of Parts I-C, I-D, I-E and I-F) $___ Part II. Amounts to be Deposited to Purchaser's Account on Last Day of Settlement Period A. Aggregate unpaid Earned Yield for the Settlement Period $___ B. Collections allocated to reduction of Investment in respect of Investment Reduction Days in the Settlement Period (Part I-D) $___ C. Aggregate Servicer's Fee for non-Investment Reduction Days in the Settlement Period $___ D. D. Collections allocated to Servicer's Fee in respect of Investment Reduction Days in the Settlement Period (Part I-F) $___ Part III. Payments A. Aggregate amounts to be paid to Purchaser (sum of Part II-A plus Part II-B) $___ - -------- (2) Expand or contract to reflect actual number of Investment Reduction Days. Exhibit 3.04(b)-2 B. Purchase Price of additional Participations, if any, to be purchased on last day of Settlement Period $___ C. Aggregate amounts to be paid by Agent to Seller (sum of Parts I-G and III-B) $___ D. Aggregate amounts to be paid by Agent to Servicer (sum of Parts II-C and II-D) $___ The Servicer certifies the above figures, and the figures on the attached Schedules, to be true and complete. AMPHENOL CORPORATION Date: By: ----------- ----------------------------------------- Name: ------------------------------------ Title: ----------------------------------- Exhibit 3.04(b)-3 Schedule I to Liquidation Statement Allocation of Collections to Participation on Investment Reduction Day Occurring on __/__/__ (the "Calculation Date")(3) 1. Dollar amount of all Collections received (or deemed received(4)) on the Calculation Date $___ 2. Allocation of such Collections to Participation ("The Purchaser's Share") 2.01 The product of Collections (from Line 1) multiplied by the Pro Rata Share(5) of the Participation on the Calculation Date $___ 2.02 Enter the amount on Line 2.01 above here and in the appropriate sub-item of Part I-A of the main body of the Liquidation Statement. $___ - -------- (3) To be completed for each Investment Reduction Day occurring in the subject Yield Period. (4) This should include the full amount of Collections deemed received pursuant to Sections 3.03(a) and 3.04 of the Purchase Agreement. (5) Pro Rata Share is equal to a fraction the numerator of which is the Investment in such Participation and the denominator of which is the Aggregate Investment, as of the Calculation Date. Exhibit 3.04(b)-4 Exhibit 5.01(a) to Receivables Purchase Agreement FORM OF CERTIFICATE CERTIFICATE OF ASSIGNMENTS Reference is made to the Amended and Restated Receivables Purchase Agreement, dated as of May 19, 1997 (the "Purchase Agreement") among the undersigned, AMPHENOL CORPORATION, POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION ("Purchaser"), and NESBITT BURNS SECURITIES, INC., as Agent. Terms defined in the Purchase Agreement are used herein as therein defined. The undersigned hereby sells, assigns and transfers unto Purchaser each Participation purchased from the undersigned pursuant to the Purchase Agreement. Each Purchase by Purchaser from the undersigned of an Participation shall be endorsed by the Agent on a grid with respect to each such Participation which has been or shall be attached hereto (and upon such attachment made a part hereof) or, at the Agent's option, in the records of the Agent, and such endorsement shall evidence the ownership by Purchaser of the Participation(s) so purchased; provided, however, that the failure of the Agent to make any such endorsement shall not void or otherwise impair any Purchase or limit the undersigned's obligations under the Purchase Agreement with respect to the Participation(s) so purchased. This Certificate of Assignments is made without recourse except as provided in the Purchase Agreement. This Certificate of Assignments is made pursuant to and upon all the representations, warranties, covenants and agreements on the part of the undersigned contained in the Purchase Agreement and is to be governed by and construed and interpreted in accordance with the Purchase Agreement and the internal laws of the State of New York. Assignment by Purchaser of one or more Participations, or any portion thereof, is subject to the terms of the Purchase Agreement, including, without limitation, Article XI thereof. Any such assignment shall be endorsed by the Agent for Purchaser on the grid(s) with respect to such Participation(s) attached hereto or, at the Agent's option, in the records of the Agent, and such endorsement shall evidence the ownership by the assignee named therein of the Participation(s) (or portion thereof) so assigned; provided, however, that the failure of the Agent to make any such endorsement shall not void or otherwise impair any such assignment or limit the undersigned's obligations under the Purchase Agreement to the assignee with respect to the Participation(s) (or portion thereof) so assigned. Exhibit 5.01(a)-1 Each reduction in the Investment in each Participation as a result of the occurrence of an Investment Reduction Day with respect to such Participation and each combination or division of one or more Participations shall also be endorsed by the Agent for Purchaser on the grid(s) with respect to such Participation(s) attached hereto or, at the Agent's option, in the records of the Agent. The undersigned hereby certifies on and as of the date of each Purchase that the conditions set forth in Section 5.02 of the Purchase Agreement are fulfilled on such date. IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly executed this day of ________, 199__. AMPHENOL FUNDING CORP. By: --------------------------------------- Name: ------------------------------------ Title: ------------------------------------ Exhibit 5.01(a)-2 Grid With Respect to Participation No. ___ (6) Attached to and Made a Part of Certificate of Assignment dated __________, 199_ from Amphenol Funding Corp. to Pooled Accounts Receivable Capital Corporation Date of Amount of Amount of Amount of Endorsed Original Amount of Reduction of Increase of Transaction Investment Assignment Investment Investment - ----------- ---------- ---------- ---------- ---------- - -------- (6) A separate grid should be attached reflecting each Participation as sold. Exhibit 5.01(a)-3 Exhibit 5.01(h)(i) to Receivables Purchase Agreement FORM OF LOCK-BOX AGREEMENT --------, ---- - ------------- - ------------- - ------------- Ladies and Gentlemen: Reference is made to lock-box account no. ________ and demand deposit account no. __________ maintained with you (collectively, the "Account"). Pursuant to an Amended and Restated Purchase and Sale Agreement, dated as of May 19, 1997, among ____________ (the "Originator"), various other originators of receivables, Amphenol Funding Corp. (the "Seller") and Amphenol Corporation, individually and as the initial Servicer (the "Servicer"), the Originator has assigned, sold or transferred, and may hereafter assign, sell or transfer, to the Seller: (a) certain accounts, chattel paper, instruments and general intangibles (collectively, the "Receivables") with respect to which payments are or may hereafter be made to the Account and (b) all of its right, title and interest in and to the Account. Pursuant to an Amended and Restated Receivables Purchase Agreement, dated as of May 19, 1997 (the "Receivables Purchase Agreement"), among the Seller, the Servicer, Pooled Accounts Receivable Capital Corporation, as Purchaser (the "Purchaser"), and Nesbitt Burns Securities, Inc., as the agent for the Purchaser (the "Agent"), the Seller has assigned and/or may hereafter assign to the Purchaser one or more undivided percentage interests in certain of the Receivables, and has granted to the Purchaser a security interest in the Account. Your execution of this letter agreement is a condition precedent to the continued maintenance of the Account with you. We hereby transfer exclusive ownership and control of the Account to the Agent, subject only to the condition subsequent that the Agent shall have given you notice of its election to assume such ownership and control, which notice may be in the form attached hereto as Annex A or in any other form that gives you reasonable notice of such election. We hereby irrevocably instruct you, at all times from and after the date of your receipt of notice from the Agent as described above, to make all payments to be made by you out of or in Exhibit 5.01(h)(i)-1 connection with the Account directly to the Agent, at its address set forth below its signature hereto or otherwise notified to you, for the account of the Purchaser (account no. 372968-8, maintained by Harris Trust and Savings Bank in Chicago, Illinois), or otherwise in accordance with the instructions of the Agent. We also hereby notify you that, at all times from and after the date of your receipt of notice from the Agent as described above, the Agent shall be irrevocably entitled to exercise in our place and stead any and all rights in respect of or in connection with the Account, including (without limitation): (a) the right to specify when payments are to be made out of or in connection with the Account and (b) the right to require preparation of duplicate monthly bank statements on the Account for the Agent's audit purposes and mailing of such statements directly to an address specified by the Agent. Notice from the Agent may be personally served or sent by facsimile or U.S. mail, certified return receipt requested, to the address or facsimile number set forth under your signature to this letter agreement (or to such other address or facsimile number as you shall notify to the Agent in writing). If notice is given by facsimile, it will be deemed to have been received when the notice is sent and receipt is confirmed by telephone or other electronic means. All other notices will be deemed to have been received when actually received, or in the case of personal delivery, delivered. By executing this letter agreement, you acknowledge the existence of the Agent's right to ownership and control of the Account and its ownership of and security interest in the amounts from time to time on deposit therein and agree that from the date hereof the Account shall be maintained by you for the benefit of, and amounts from time to time therein held by you as agent for, the Agent on the terms provided herein. Upon execution hereof, the Account is to be entitled "AMPHENOL FUNDING CORP. and NESBITT BURNS SECURITIES, INC., AS AGENT FOR POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION". Except as otherwise provided in this letter agreement, the Account is to be processed in accordance with the procedures, agreements and instructions currently in effect and as they may be modified from time to time. In making, agreeing to or accepting such modifications, before receipt of the Agent's notice described above, you may disregard the interest of the Agent in the Account; provided, that you shall endeavor to notify the Agent of material changes in your standard procedures. All service charges and fees with respect to the Account shall continue to be payable by us at all times, including after your receipt of the Agent's notice described above. By executing this letter agreement, you irrevocably waive and agree not to assert, claim or endeavor to exercise, irrevocably bar and estop yourself from asserting, claiming or exercising, and acknowledge that you have not heretofore received a notice, writ, order or any form of legal process from any other party asserting, claiming or exercising, any right of set-off, banker's lien or other purported form of claim with respect to the Account or any funds from time to time therein, except for your rights to payment of your service charges and fees, to make deductions Exhibit 5.01(h)(i)-2 for returned items, and to make appropriate adjustments with respect to entries previously posted (and your security interest to secure such rights, to the extent provided automatically under applicable law, in items deposited in the Account and proceeds thereof). Except for such rights, you shall have no additional rights in the Account or funds therein. To the extent you may ever have such additional rights, you hereby expressly subordinate all such additional rights to all rights of the Agent. You may terminate this letter agreement by cancelling the Account maintained with you, which cancellation and termination shall become effective only upon ten days' prior written notice thereof from you to the Agent and the undersigned. Incoming mail addressed to the post office box related to the Account received after such cancellation (including before the Agent's notice described above has been delivered to you) shall be forwarded in accordance with the Agent's instructions. This letter agreement may also be terminated upon written notice to you by the Agent stating that the Receivables Purchase Agreement pursuant to which this letter agreement was obtained is no longer in effect. Except as otherwise provided in this paragraph, this letter agreement may not be terminated or amended without the prior written consent of the Agent. Until you have received evidence reasonably satisfactory to you of the authorization of persons giving instructions on behalf of the Agent, upon receipt of a notice from the Agent as described above, you may freeze the Account and refuse to follow any instructions. You shall have no obligation to honor any request to pay out any funds in the Account in excess of collected, available funds in the Account. If you are unable for any reason to validly charge against the Account (by reason of insufficient funds or otherwise) an amount of your service charges and fees, deductions for returned items or appropriate adjustments with respect to entries previously posted, each of the Seller and Amphenol Corporation (and the Agent, but only to the extent relating to fees that accrued or credits that were withdrawn after your receipt of the Agent's notice as described above) agrees to pay such amount to you on demand. Each of the Seller and Amphenol Corporation (and the Agent, but only after your receipt of the Agent's notice as described above) agrees to indemnify and defend you and hold you harmless from any loss, cost, claim or expense (including reasonable attorneys' fees) that you suffer or incur relating to: (a) the deposit of items into the Account, (b) any use by the Agent or the Seller of any amounts in the Account, notwithstanding that such use may be unauthorized, fraudulent, outside the scope of the purchase by the Purchaser, or otherwise, or (c) any specific instructions to you from the Seller (or, after your receipt of the Agent's notice as described above, the Agent), except (in each case) for any loss, cost, claim or expense caused by your gross negligence, willful misconduct or failure to follow such instructions (provided, that the instructions provided pursuant to clause (c): (i) shall not be contrary to your contract with the Originator or with this letter agreement, (ii) shall not be materially contrary to your standard procedures and (iii) shall be capable of being followed by you). Exhibit 5.01(h)(i)-3 Please acknowledge your agreement to the terms set forth in this letter agreement by signing in the space provided below the two copies hereof enclosed herewith, sending one such signed copy to the Agent at its address provided above and returning the other signed copy to us. Very truly yours, AMPHENOL FUNDING CORP. By: --------------------------------------- Name: ------------------------------------ Title: ----------------------------------- AMPHENOL CORPORATION, individually and as Servicer By: --------------------------------------- Name: ------------------------------------ Title: ----------------------------------- ---------------------- By: --------------------------------------- Name: ------------------------------------ Title: ----------------------------------- Exhibit 5.01(h)(i)-4 Accepted and confirmed as of the date first written above: NESBITT BURNS SECURITIES, INC., as Agent By: --------------------------- Name: ----------------------- Title: ---------------------- By: --------------------------- Name: ----------------------- Title: ---------------------- Address for notice: 20th Floor East 111 West Monroe Street Chicago, Illinois 60603 Attention: Kevin Gibbons Telephone: (312) 461-5542 Facsimile No.: (312) 293-4908 Exhibit 5.01(h)(i)-5 Acknowledged and agreed to as of the date first written above: - --------------------------------- By: --------------------------- Name: ----------------------- Title: ---------------------- Address for notice: ------------------------------ ------------------------------ ------------------------------ Attention:_____________________ Telephone: (___) ___-____ Facsimile No.: (___) ___-____ Exhibit 5.01(h)(i)-6 ANNEX A to Lockbox Agreement [Letterhead of the Agent] ------------------------------ ------------------------------ ------------------------------ Re: Amphenol Funding Corp. Lock-box Account No. _________ Ladies and Gentlemen: Reference is made to the letter agreement dated as of ____________ (the "Letter Agreement") among Amphenol Funding Corp., Amphenol Corporation, Pooled Accounts Receivable Capital Corporation (the "Purchaser"), the undersigned, as Agent for the Purchaser, and you concerning the above described lock-box accounts (the "Accounts"). We hereby give you notice of our assumption of ownership and control of the Accounts as provided in the Letter Agreement. We hereby instruct you to make all payments to be made by you out of or in connection with the Accounts [directly to the undersigned, at [our address set forth above], for the account of the Purchaser (account no. _______)]. [other instructions] Very truly yours, NESBITT BURNS SECURITIES, INC., as Agent By: ------------------------------------- Name: ------------------------------- Title: ------------------------------- Exhibit 5.01(h)(i)-7 Exhibit 5.01(h)(ii)-1 to Receivables Purchase Agreement FORM OF COLLECTION ACCOUNT AGREEMENT November 23, 1993 Mr. Edward Gerber Fleet Bank One Constitution Plaza Hartford, CT 06115 Ladies and Gentlemen: Reference is made to account no. 936-214-7297 maintained with you (the "Account"). Pursuant to a Receivables Purchase Agreement dated as of December 3, 1993 among Amphenol Funding Corp., as seller ("Seller"), Amphenol Corporation, as servicer ("Servicer"), POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION, as Purchaser ("Purchaser"), and BANK OF MONTREAL, as agent for Purchaser (the "Agent"), Seller has granted to Purchaser a security interest in the Account. Your execution of this letter agreement is a condition precedent to our continued maintenance of the Account with you. We hereby transfer exclusive ownership and control of the Account to the Agent, subject only to the condition subsequent that the Agent shall have given you notice of its election to assume such ownership and control, which notice may be in the form attached hereto as Annex A or in any other form that gives you reasonable notice of such election. We hereby irrevocably instruct you, at all times from and after the date of your receipt of notice from the Agent as described above, to make all payments to be made by you out of or in connection with the Account directly to the Agent, at its address set forth below its signature hereto or otherwise notified to you, for the account of Purchaser (account no. 936-214-7297), or otherwise in accordance with the instructions of the Agent. We also hereby notify you that, at all times from and after the date of your receipt of notice from the Agent as described above, the Agent shall be irrevocably entitled to exercise in our place and stead any and all rights in respect of or in connection with the Account, including, without limitation, (i) the right to specify when payments are to be made out of or in connection with the Account and (ii) the right to require preparation of duplicate monthly bank statements on the Exhibit 5.01(h)(ii)-1-1 Account for the Agent's audit purposes and mailing of such statements directly to an address specified by the Agent. Notice from the Agent may be personally served or sent by facsimile or U.S. mail, certified return receipt requested, to the address or facsimile number set forth under your signature to this letter agreement (or to such other address or facsimile number as you shall notify to the Agent in writing). If notice is given by facsimile it will be deemed to have been received when receipt is confirmed by telephone or other electronic means. All other notices will be deemed to have been received when actually received, or in the case of personal delivery, delivered. By executing this letter agreement, you acknowledge the existence of the Agent's right to ownership and control of the Account and its ownership of and security interest in the amounts from time to time on deposit therein and agree that from the date hereof the Account shall be maintained by you for the benefit of, and amounts from time to time therein held by you as agent for, the Agent on and subject to the terms provided herein. The Account is to be entitled "AMPHENOL FUNDING CORP. COLLECTION ACCOUNT". Except as otherwise provided in this letter agreement payments to the Account are to be processed in accordance with the standard procedures currently in effect. All service charges and fees with respect to the Account shall continue to be payable by us as under the arrangements currently in effect. By executing this letter agreement, you irrevocably waive and agree not to assert, claim or endeavor to exercise, irrevocably bar and estop yourself from asserting, claiming or exercising, and acknowledge that you have not heretofore received a notice, writ, order or any form of legal process from any other party asserting, claiming or exercising, any right of set-off, banker's lien or other purported form of claim with respect to the Account or any funds from time to time therein. Except for your right to payment of your service charges and fees and to make deductions for returned items, you shall have no rights in the Account or funds therein. To the extent you may ever have such rights, you hereby expressly subordinate all such rights to all rights of the Agent. You may terminate this letter agreement by cancelling the Account maintained with you, which cancellation and termination shall become effective only upon thirty days' prior written notice thereof from you to the Agent. Incoming mail addressed to the post office box related to the Account received after such cancellation shall be forwarded in accordance with the Agent's instructions. This letter agreement may also be terminated upon written notice to you by the Agent stating that the Receivables Purchase Agreement pursuant to which this letter agreement was obtained is no longer in effect. Except as otherwise provided in this paragraph, this letter agreement may not be terminated or amended without the prior written consent of the Agent. Exhibit 5.01(h)(ii)-1-2 Please acknowledge your agreement to the terms set forth in this letter agreement by signing in the space provided below the two copies hereof enclosed herewith, sending one such signed copy to the Agent at its address provided above and returning the other signed copy to us. Very truly yours, AMPHENOL FUNDING CORP. By: --------------------------------------- Name: ----------------------------------- Title: ---------------------------------- AMPHENOL CORPORATION, as Servicer By: --------------------------------------- Name: ----------------------------------- Title: ---------------------------------- Accepted and confirmed as of the date first written above: BANK OF MONTREAL, AS AGENT By: ---------------------------- Name: ------------------------ Title: ----------------------- Address for notice: 115 South LaSalle Street Chicago, Illinois 60603 Attention: Facsimile no.: Exhibit 5.01(h)(ii)-1-3 Acknowledged and agreed to as of the date first written above: FLEET BANK N.A. By: ---------------------------- Name: ------------------------ Title: ----------------------- Address for notice: 1 Constitution Plaza, HMMO3G Hartford, CT 06115-1600 Attention: Edward Gerber Facsimile No.: (203) 244-5391 Exhibit 5.01(h)(ii)-1-4 [Letterhead of Nesbitt Burns Securities, Inc.] [Name and Address of Collection Account Bank] Re: Amphenol Funding Corp. Collection Account No. Ladies and Gentlemen: Reference is made to the letter agreement dated ______, 19__ (the "Letter Agreement") among AMPHENOL FUNDING CORP., AMPHENOL CORPORATION, the undersigned (as successor to the Bank of Montreal), as Agent for POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION (the "Purchaser"), and you concerning the above described account (the "Account"). We hereby give you notice of our assumption of ownership and control of the Account as provided in the Letter Agreement. We hereby instruct you to make all payments to be made by you out of or in connection with the Account[s] [directly to the undersigned, at [our address set forth above], for the account of Purchaser (account no. ____)]. [other instructions] Very truly yours, NESBITT BURNS SECURITIES, INC., as Agent By: ----------------------------------------- Name: ------------------------------------- Title: ------------------------------------- Exhibit 5.01(h)(ii)-1-5 Exhibit 5.01(h)(ii)-2 to Receivables Purchase Agreement FORM OF LIQUIDATION ACCOUNT AGREEMENT December 3, 1993 Bankers Trust Company One Bankers Trust Plaza New York, New York 10006 Ladies and Gentlemen: Reference is made to our liquidation account no. 00-237-307 maintained with you (the "Account[s]"). Pursuant to a Receivables Purchase Agreement dated as of December 3, 1993 among Amphenol Funding Corp., as seller ("Seller"), Amphenol Corporation, as servicer ("Servicer"), POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION, as Purchaser ("Purchaser"), and BANK OF MONTREAL, as agent for Purchaser (the "Agent"), Seller has granted to Purchaser a security interest in the Account. Your execution of this letter agreement is a condition precedent to our continued maintenance of the Account with you. We hereby transfer exclusive ownership and control of the Account to the Agent, subject only to the condition subsequent that the Agent shall have given you notice of its election to assume such ownership and control, which notice may be in the form attached hereto as Annex A or in any other form that gives you reasonable notice of such election. We hereby irrevocably instruct you, at all times from and after the date of your receipt of notice from the Agent as described above, to make all payments to be made by you out of or in connection with the Account directly to the Agent, at its address set forth below its signature hereto or otherwise notified to you, for the account of Purchaser (account no. 379909-5, maintained by Harris Trust and Savings Bank in Chicago, Illinois), or otherwise in accordance with the instructions of the Agent. We also hereby notify you that, at all times from and after the date of your receipt of notice from the Agent as described above, the Agent shall be irrevocably entitled to exercise in our place and stead any and all rights in respect of or in connection with the Account, including, without limitation, (i) the right to specify when payments are to be made out of or in connection with the Account and (ii) the right to require preparation of duplicate monthly bank statements on the Exhibit 5.01(h)(ii)-2-4 Account for the Agent's audit purposes and mailing of such statements directly to an address specified by the Agent. Notice from the Agent may be personally served or sent by facsimile or U.S. mail, certified return receipt requested, to the address or facsimile number set forth under your signature to this letter agreement (or to such other address or facsimile number as you shall notify to the Agent in writing). If notice is given by facsimile it will be deemed to have been received when receipt is confirmed by telephone or other electronic means. All other notices will be deemed to have been received when actually received, or in the case of personal delivery, delivered. By executing this letter agreement, you acknowledge the existence of the Agent's right to ownership and control (subject to the condition subsequent described above) of the Account and its ownership of and security interest in the amounts from time to time on deposit therein and agree that from the date hereof the Account shall be maintained by you for the benefit of, and amounts from time to time therein held by you as agent for, the Agent on and subject to the terms provided herein. The Account is to be entitled "AMPHENOL FUNDING CORP. LIQUIDATION ACCOUNT". Except as otherwise provided in this letter agreement payments to the Account are to be processed in accordance with the standard procedures currently in effect. All service charges and fees with respect to the Account shall continue to be payable by us as under the arrangements currently in effect. By executing this letter agreement: (a) you irrevocably waive and agree not to assert, claim or endeavor to exercise, irrevocably bar and estop yourself from asserting, claiming or exercising any right of set-off, banker's lien or other purported form of claim with respect to the Account or any funds from time to time therein, except for your rights to payment of your service charges and fees, to make deductions for returned items, and (b) you acknowledge that you have not heretofore received a notice, writ, order or any form of legal process from any other party asserting, claiming or exercising any right of set-off, banker's lien or other purported form of claim with respect to the Account or any funds from time to time therein. Except as provided above, to the extent that you may ever have such rights, you hereby expressly subordinate all such rights to all rights of the Agent. You may terminate this letter agreement by cancelling the Account maintained with you, which cancellation and termination shall become effective only upon thirty days' prior written notice thereof from you to the Agent. Incoming mail addressed to the post office box related to the Account received after such cancellation shall be forwarded in accordance with the Agent's instructions. This letter agreement may also be terminated upon written notice to you by the Agent stating that the Receivables Purchase Agreement pursuant to which this letter agreement was obtained is no longer in effect. Except as otherwise provided in this paragraph, this letter agreement may not be terminated or amended without the prior written consent of the Agent. Exhibit 5.01(h)(ii)-2-4 Please acknowledge your agreement to the terms set forth in this letter agreement by signing in the space provided below the two copies hereof enclosed herewith, sending one such signed copy to the Agent at its address provided above and returning the other signed copy to us. Very truly yours, AMPHENOL FUNDING CORP. By: --------------------------------------- Name: ------------------------------------ Title: ----------------------------------- AMPHENOL CORPORATION, as Servicer By: --------------------------------------- Name: ------------------------------------ Title: ----------------------------------- Accepted and confirmed as of the date first written above: BANK OF MONTREAL, AS AGENT By: --------------------------------------- Name: ------------------------------------ Title: ----------------------------------- Address for notice: 115 South LaSalle Street Chicago, Illinois 60603 Attention:_______________ Facsimile no.:___________ Exhibit 5.01(h)(ii)-2-4 Acknowledged and agreed to as of the date first written above: BANKERS TRUST COMPANY By: --------------------------------------- Name: ------------------------------------ Title: ----------------------------------- Address for notice: ---------------------------------- ---------------------------------- Attention:________________________ Facsimile No.:____________________ Exhibit 5.01(h)(ii)-2-4 [Letterhead of Nesbitt Burns Securities, Inc.] Bankers Trust Company One Bankers Trust Plaza New York, New York 10006 Re: Amphenol Funding Corp. Liquidation Account No. Ladies and Gentlemen: Reference is made to the letter agreement dated ________, 19__ (the "Letter Agreement") among AMPHENOL FUNDING CORP., AMPHENOL CORPORATION, the undersigned (as successor to the Bank of Montreal), as Agent for POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION, and you concerning the above described account (the "Account"). We hereby give you notice of our assumption of ownership and control of the Account as provided in the Letter Agreement. We hereby instruct you to make all payments to be made by you out of or in connection with the Account [directly to the undersigned, at [our address set forth above], for the account of Purchaser (account no. ____)]. [other instructions] Very truly yours, NESBITT BURNS SECURITIES, INC., as Agent By: --------------------------------------- Name: ------------------------------------ Title: ----------------------------------- Exhibit 5.01(h)(ii)-2-4 Exhibit 5.01(i)-1 to Receivables Purchase Agreement FORM OF OPINION OF COUNSEL TO SELLER, SERVICER AND THE ORIGINATORS [To be attached] Exhibit 5.01(i)-1-1 Exhibit 5.01(i)-2 to Receivables Purchase Agreement FORM OF OPINION OF GENERAL COUNSEL OF SELLER, SERVICER AND THE ORIGINATORS [To be attached] Exhibit 5.01(i)-2-1 Exhibit 11.01 to Receivables Purchase Agreement FORM OF ASSIGNMENT Assignment dated __________ __, 19 , made by the undersigned to _______ pursuant to the Amended and Restated Receivables Purchase Agreement dated as of May 19, 1997 (the "Purchase Agreement"; terms defined therein being used herein as therein defined) among AMPHENOL FUNDING CORP., AMPHENOL CORPORATION, the undersigned and NESBITT BURNS SECURITIES, INC., as agent. In consideration of the payment of $________, receipt of which payment is hereby acknowledged, the undersigned hereby assigns to ______ [all of] [an undivided ___% interest in] the undersigned's right, title and interest in and to Participation No[s]. ___ [, ____ and ____] purchased by the undersigned in [a] Purchase[s] on _____, 19__, [_____, 19__, [etc.]] under the Purchase Agreement. This Assignment is made without recourse except that the undersigned hereby represents and warrants that it is the owner of the Participation[s] referred to above and that it has not created any Adverse Claim upon or with respect to such Participation[s]. This Assignment shall be governed by and construed in accordance with the laws of the State of New York. IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly executed and delivered by its duly authorized officer or agent as of the date first written above. POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION By: --------------------------------------- Name: ------------------------------------ Title: ----------------------------------- Exhibit 11.01-1 EX-10.2 6 AMENDED & RESTATED RECEIVABLES PURCHASE AGREEMENT Exhibit 10.2 AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT Dated as of May 19, 1997 among THE ORIGINATORS NAMED HEREIN, AMPHENOL FUNDING CORP., and AMPHENOL CORPORATION, individually and as the initial Servicer. TABLE OF CONTENTS ARTICLE I AGREEMENT TO PURCHASE AND SELL; AFC AGREEMENT TO LEND SECTION 1.1 Agreement To Purchase and Sell..................................2 SECTION 1.2 Timing of Purchases.............................................3 SECTION 1.3 Consideration for Purchases.....................................3 SECTION 1.4 AFC Agreement to Make Demand Loans..............................3 SECTION 1.5 Purchase and Sale Termination Date..............................4 ARTICLE II CALCULATION OF PURCHASE PRICE SECTION 2.1 Calculation of Purchase Price...................................4 SECTION 2.2 Definitions and Calculations Related to Purchase Price..........6 ARTICLE III PAYMENT OF PURCHASE PRICE SECTION 3.1 Initial Purchase Price Payment..................................8 SECTION 3.2 Subsequent Purchase Price Payments..............................8 SECTION 3.3 Settlement as to Specific Receivables...........................9 SECTION 3.4 Settlement as to Dilution.......................................9 ARTICLE IV AFC NOTE AND ORIGINATOR NOTE OPERATIONS SECTION 4.1 AFC Note and Originator Note Payments..........................10 ARTICLE V CONDITIONS OF PURCHASES SECTION 5.1 Conditions Precedent to Purchase...............................10 SECTION 5.2 Certification as to Representations and Warranties.............12 ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE ORIGINATORS SECTION 6.1 Organization and Good Standing.................................12 Purchase and Sale Agreement - i SECTION 6.2 Due Qualification..............................................13 SECTION 6.3 Power and Authority; Due Authorization.........................13 SECTION 6.4 Valid Sale; Binding Obligations................................13 SECTION 6.5 No Violation...................................................13 SECTION 6.6 Proceedings....................................................13 SECTION 6.7 Bulk Sales Acts................................................14 SECTION 6.8 Government Approvals...........................................14 SECTION 6.9 Material Adverse Effect........................................14 SECTION 6.10 Licenses, Contingent Liabilities and Labor Controversies......14 SECTION 6.11 Margin Regulations............................................14 SECTION 6.12 Quality of Title..............................................14 SECTION 6.13 Accuracy of Information.......................................15 SECTION 6.14 Offices.......................................................15 SECTION 6.15 Trade Names...................................................15 SECTION 6.16 Taxes.........................................................15 SECTION 6.17 Compliance with Applicable Laws...............................15 ARTICLE VII COVENANTS OF AMPHENOL AND THE OTHER ORIGINATORS SECTION 7.1 Affirmative Covenants..........................................16 SECTION 7.2 Reporting Requirements.........................................18 SECTION 7.3 Negative Covenants.............................................19 SECTION 7.4 Lock-box Banks. ...............................................19 ARTICLE VIII ADDITIONAL RIGHTS AND OBLIGATIONS IN RESPECT OF THE RECEIVABLES SECTION 8.1 Rights of AFC..................................................20 SECTION 8.2 Responsibilities of Each Originator............................20 SECTION 8.3 Further Action Evidencing Purchases............................20 SECTION 8.4 Application of Collections.....................................21 ARTICLE IX PURCHASE AND SALE TERMINATION EVENTS SECTION 9.1 Purchase and Sale Termination Events...........................21 SECTION 9.2 Remedies.......................................................22 Purchase and Sale Agreement - ii ARTICLE X INDEMNIFICATION SECTION 10.1 Indemnities by Amphenol and the Originators...................22 ARTICLE XI MISCELLANEOUS SECTION 11.1 Amendments, Waivers, etc......................................24 SECTION 11.2 Notices, etc..................................................24 SECTION 11.3 Cumulative Remedies...........................................25 SECTION 11.4 Binding Effect; Assignability.................................25 SECTION 11.5 Governing Law.................................................25 SECTION 11.6 Costs, Expenses and Taxes.....................................25 SECTION 11.7 Submission to Jurisdiction....................................25 SECTION 11.8 Waiver of Jury Trial..........................................26 SECTION 11.9 Captions and Cross References; Incorporation by Reference.....26 SECTION 11.10 Execution in Counterparts....................................26 SECTION 11.11 Acknowledgment and Agreement.................................27 APPENDIX A Definitions EXHIBIT A Form of Originator Note EXHIBIT B Form of Purchase Report EXHIBIT C Form of AFC Note EXHIBIT D Form of Originator Assignment Certificate EXHIBIT E Form of Subscription Agreement EXHIBIT F Proceedings EXHIBIT G Office Locations EXHIBIT H Trade Names and Corporate Reorganizations Purchase and Sale Agreement - iii THIS AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT (this "Agreement"), dated as of May 19, 1997, is among AMPHENOL CORPORATION, a Delaware corporation ("Amphenol"), individually and as the initial Servicer, AMPHENOL INTERCONNECT PRODUCTS CORPORATION, a Delaware corporation ("Amphenol Interconnect"), PYLE NATIONAL INC., a Delaware corporation ("Pyle National"), TIMES FIBER COMMUNICATIONS, INC., a Delaware corporation ("Times Fiber"), and THE SINE COMPANIES, INC., a Michigan corporation ("Sine") (Amphenol, Amphenol Interconnect, Pyle National, Times Fiber and Sine are herein collectively called the "Originators" and individually called an "Originator"), and AMPHENOL FUNDING CORP., a Delaware corporation ("AFC"). Definitions Unless otherwise indicated, certain terms that are capitalized and used throughout this Agreement are defined in Appendix A. All references herein to months are to calendar months unless otherwise expressly indicated. Background 1. AFC is a special purpose corporation, all of the issued and outstanding shares of which are owned by the Originators. 2. The Originators generate Receivables in the ordinary course of their respective businesses. 3. The Originators (other than Sine), AFC and Amphenol entered into a Purchase and Sale Agreement, dated as of December 3, 1993 (as amended to the date hereof, including by the addition of Sine as an Originator, the "Original PSA"), pursuant to which, among other things, the Originators agreed to sell to AFC, and AFC agreed to purchase from the Originators, certain Receivables. Pursuant to the Original PSA, the Originators (other than Sine) transferred certain Receivables to AFC as part of the initial capitalization of AFC. 4. The Originators, in order to finance their respective businesses, wish to sell Receivables to AFC, and AFC is willing, on the terms and subject to the conditions set forth herein, to purchase Receivables from the Originators. 5. Each Originator and AFC intends this transaction to be a true sale of Receivables by each Originator to AFC providing AFC with the full benefits of ownership of the Receivables and each Originator and AFC do not intend the transactions hereunder to be, or for any purpose to be, characterized as a loan from AFC to any Originator. 6. AFC intends to sell Participations in the Receivables from time to time pursuant to the Receivables Purchase Agreement. NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained, the parties hereto agree as follows: ARTICLE I AGREEMENT TO PURCHASE AND SELL; AFC AGREEMENT TO LEND SECTION 1.1 Agreement To Purchase and Sell. On the terms and subject to the conditions set forth in this Agreement (including Article V), each Originator, severally and for itself alone, agrees to sell to AFC, and AFC agrees to purchase from such Originator, from time to time on or after the Initial Closing Date, but before the Purchase and Sale Termination Date, all of such Originator's right, title and interest in and to: (a) each Receivable of such Originator that existed and was owing to such Originator as at the closing of such Originator's business on December 6, 1993 (or December 27, 1996 as to Sine) (in each case after giving effect to the transfer of Receivables, if any, made by such Originator on the Initial Closing Date pursuant to the Subscription Agreement); (b) each Receivable created by such Originator from and including the closing of such Originator's business on December 6, 1993 (or December 27, 1996 as to Sine), to and including the Purchase and Sale Termination Date (in each case after giving effect to the transfer of Receivables, if any, made by such Originator pursuant to the Subscription Agreement); (c) all rights to, but not the obligations under, all Related Security; (d) all monies due or to become due with respect to the Receivables described in clauses (a) and (b); (e) all proceeds of Receivables described in clauses (a) and (b) above (as defined in the applicable UCC) that are or were received by such Originator on or after the closing of such Originator's business on December 6, 1993 (or December 27, 1996 as to Sine), including, without limitation, all funds which either are received by such Originator, AFC or Servicer from or on behalf of the Obligors in payment of any amounts owed (including, without limitation, invoice price, finance charges, interest and all other charges) in respect of Receivables, or are applied to such amounts owed by the Obligors (including, without limitation, insurance payments that an Originator or Servicer applies in the ordinary course Purchase and Sale Agreement - 2 of its business to amounts owed in respect of any Receivable and net proceeds of sale or other disposition of repossessed goods or other collateral or property of the Obligors or any other parties directly or indirectly liable for payment of such Receivables); and (f) all books and records related to any of the foregoing. All purchases hereunder shall be made without recourse, but shall be made pursuant to, and in reliance upon, the representations, warranties and covenants of each Originator set forth in this Agreement and each other Transaction Document. No obligation or liability to any Obligor on any Receivable is intended to be assumed by AFC hereunder, and any such assumption is expressly disclaimed. AFC's foregoing commitment to purchase Receivables is herein called the "Purchase Facility." The Purchase Facility and the Originator Loan Facility (as defined in Section 1.4) are herein collectively called the "Facility". SECTION 1.2 Timing of Purchases. (a) Initial Closing Date Purchases. Each Originator's entire right, title and interest in (i) each Receivable that existed and was owing to such Originator as at the closing of such Originator's business on December 6, 1993 (or December 27, 1996 as to Sine), (ii) all Receivables created by such Originator from and including the closing of such Originator's business on December 6, 1993 (or December 27, 1996 as to Sine), to and including the Initial Closing Date (it being agreed by all of the parties hereto that the foregoing clauses (i) and (ii) shall be calculated after giving effect to the transfer of Receivables, if any, to be made by such Originator to AFC on the Initial Closing Date pursuant to the Subscription Agreement), and (iii) all proceeds thereof (as described in subsection (e) of the foregoing Section 1.1) automatically shall be deemed to have been sold to AFC on the Initial Closing Date. (b) Regular Purchases. After the Initial Closing Date, until the Purchase and Sale Termination Date, each Receivable (and the rights related thereto described in Section 1.1) created by each Originator shall be deemed to have been sold to AFC immediately (and without further action) upon the creation of such Receivable. SECTION 1.3 Consideration for Purchases. On the terms and subject to the conditions set forth in this Agreement, AFC agrees to make Purchase Price payments to the respective Originators in accordance with Article III. SECTION 1.4 AFC Agreement to Make Demand Loans. On the terms and subject to the conditions set forth in this Agreement and in the Receivables Purchase Agreement, AFC agrees to make demand loans (each such loan being herein called an "Originator Loan") to each Originator prior to the Purchase and Sale Termination Date in such amounts as such Originator may request (through Servicer) from time to time; provided, however, that: Purchase and Sale Agreement - 3 (a) the Originator Loans made to each Originator shall be evidenced by a demand promissory note in the form of Exhibit A issued by such Originator to the order of AFC (each such demand promissory note, as it may be amended, supplemented, indorsed or otherwise modified from time to time in accordance with the Transaction Documents, together with all promissory notes issued from time to time in substitution therefor or renewal thereof in accordance with the Transaction Documents, being herein called an "Originator Note"); and (b) no Originator Loan shall be made to any Originator to the extent that the making of such Originator Loan would violate Section 7.03(f) of the Receivables Purchase Agreement. AFC's agreement to make Originator Loans is herein called the "Originator Loan Facility." SECTION 1.5 Purchase and Sale Termination Date. The "Purchase and Sale Termination Date" shall be the earliest to occur of (a) the date of the termination of this Agreement pursuant to Section 9.2 and (b) the Payment Date immediately following the day on which all of the Originators shall have given notice to AFC at or prior to 10:00 a.m. (New York City time) that all of the Originators desire to terminate this Agreement; provided, however, that the Purchase and Sale Termination Date shall not occur until the Commitment shall have terminated, the Aggregate Investment shall have been reduced to zero and all Obligations shall have been finally and fully paid and performed. ARTICLE II CALCULATION OF PURCHASE PRICE SECTION 2.1 Calculation of Purchase Price. On each Payment Date (including the Initial Closing Date), Servicer shall deliver to AFC, the Agent and each Originator a report in substantially the form of Exhibit B (each such report being herein called a "Purchase Report") with respect to AFC's purchases of Receivables from each Originator: (a) that are to be made on such Payment Date (in the case of the Purchase Report to be delivered on Initial Closing Date), or (b) that were made during the month immediately preceding such Payment Date (in the case of each subsequent Purchase Report). The "Purchase Price" to be paid to each Originator on each Payment Date for the Receivables that are to be sold by such Originator on such Payment Date (in the case of the Initial Closing Date) or that were sold by such Originator during the month immediately preceding such Payment Date (in Purchase and Sale Agreement - 4 the case of each subsequent Payment Date) shall be set forth in the relevant Purchase Report and shall be determined in accordance with the following formula: PP = AUB - PD where: PP = Purchase Price to be paid to the relevant Originator on the relevant Payment Date AUB = (i) for purposes of calculating the Purchase Price on the Initial Closing Date, the aggregate outstanding Unpaid Balance of all Receivables that were generated by such Originator, as measured as at the closing of such Originator's business on December 6, 1993 (or December 27, 1996 as to Sine), less an amount equal to the aggregate Unpaid Balance of all Receivables that comprised the capital contribution, if any, made by such Originator to AFC on the Initial Closing Date pursuant to the Subscription Agreement, and (ii) for purposes of calculating the Purchase Price on each Payment Date thereafter, the aggregate Unpaid Balance of all Receivables generated by such Originator during the month immediately preceding such Payment Date (it being agreed that, subject to Section 3.4, the Unpaid Balance of each such Receivable shall be measured for this purpose only at the time such Receivable was generated) PD = Purchase Discount for such Originator as measured on such Payment Date where: Purchase Discount z = COFD + SFD + SD + LD and: COFD = Cost of Funds Discount for such Originator as measured on such Payment Date SFD = Servicer's Fee Discount for such Originator as measured on such Payment Date SD = Spread Discount for such Originator as measured on such Payment Purchase and Sale Agreement - 5 Date LD = Loss Discount for such Originator as measured on such Payment Date SECTION 2.2 Definitions and Calculations Related to Purchase Price. (a) Cost of Funds Discount. "Cost of Funds Discount" for a particular Originator, as measured on any Payment Date, shall be determined in accordance with the following formula: COFD = COF x (AUB/SAUB) where: COFD = Cost of Funds Discount for such Originator as measured on such Payment Date COF = (i) for purposes of the Initial Closing Date (other than with respect to Sine), $20,000, and (ii) for purposes of each subsequent Payment Date, the sum of all of AFC's financing costs and expenses incurred during the month preceding such Payment Date, including, without limitation, accrued Earned Yield, interest on the AFC Notes, Commitment Fees, Program Fee, reserve costs, tax payments, and indemnity obligations of AFC for which AFC is not indemnified pursuant to this Agreement AUB, in respect of such Originator, has the meaning assigned thereto in Section 2.1 SAUB = The sum of the separate AUBs calculated in respect of all Originators on such Payment Date (b) Servicer's Fee Discount. The "Servicer's Fee Discount" for a particular Originator, as measured on any Payment Date, shall be determined in accordance with the following formula: SFD = SF x (AUB/SAUB) where: SFD = Servicer's Fee Discount for such Originator as measured on such Payment Date SF = (i) For purposes of the Initial Closing Date, $37,500 (other than with respect to Sine), (ii) for purposes of each subsequent Payment Date, Purchase and Sale Agreement - 6 the aggregate Dollar amount of the Servicer's Fee payable to the Servicer pursuant to clause (i) or (ii), as the case may be, of Section 8.01(d) of the Receivables Purchase Agreement in respect of the month preceding such Payment Date AUB, in respect of such Originator, has the meaning assigned thereto in Section 2.1 SAUB = The sum of the separate AUBs calculated in respect of all Originators on such Payment Date (c) Spread Discount. The "Spread Discount" for a particular Originator, as measured on any Payment Date, shall be calculated in accordance with the following formula: SD = AUB x S where: SD = Spread Discount for such Originator as measured on such Payment Date AUB, in respect of such Originator, has the meaning assigned thereto in Section 2.1 S = Spread of two (2.0) basis points. (d) Loss Discount. The "Loss Discount" for a particular Originator, as measured on any Payment Date, shall be calculated in accordance with the following formula: LD = AUB x LR where: LD = Loss Discount for such Originator as measured on such Payment Date AUB, in respect of such Originator, has the meaning assigned thereto in Section 2.1 LR = (i) for purposes of the first three Payment Dates (including the Initial Closing Date) the Average Loss Rate of the Receivables generated by such Originator, as measured on such Payment Date, and (ii) for purposes of each Payment Date thereafter, the Loss Rate of the Receivables generated by such Originator, as measured on such Payment Date Purchase and Sale Agreement - 7 (e) Average Loss Rate. The "Average Loss Rate" of the Receivables generated by a particular Originator, as measured on any Payment Date, means one-tenth of: (i) the aggregate Unpaid Balance of all such Receivables that were written off during the ten complete months ending October 31, 1993 (or November 30, 1996 as to Sine) divided by (ii) the monthly average Unpaid Balance of all such Receivables generated by such Originator as measured for such ten-month period. (f) Loss Rate. The "Loss Rate" of the Receivables generated by a particular Originator, as measured on any Payment Date, means: (i) the aggregate Unpaid Balance of all such Receivables that became more than 180 days past due (or, without duplication, were written off) during the month preceding such Payment Date divided by (ii) the Month-End Balance of such Receivables for the month preceding such Payment Date. (g) Month-End Balance. The "Month-End Balance", during any month, of the Receivables generated by a particular Originator means an amount equal to the aggregate Unpaid Balance of such Receivables at the close of Servicer's (or, for periods prior to the Initial Closing Date, such Originator's) business on the last Business Day of such month. ARTICLE III PAYMENT OF PURCHASE PRICE SECTION 3.1 Initial Purchase Price Payment. On the terms and subject to the conditions set forth in this Agreement, AFC agrees to pay to each Originator the Purchase Price for the purchase to be made from such Originator on the Initial Closing Date partially in cash (in an amount to be agreed between AFC, Servicer and such Originator and set forth in the initial Purchase Report) and partially by issuing a promissory note in the form of Exhibit C to such Originator with an initial principal balance equal to the remaining Purchase Price (each such promissory note, as it may be amended, supplemented, indorsed or otherwise modified from time to time, together with all promissory notes issued from time to time in substitution therefor or renewal thereof in accordance with the Transaction Documents, being herein called an "AFC Note"). SECTION 3.2 Subsequent Purchase Price Payments. On each Payment Date falling after the Initial Closing Date, on the terms and subject to the conditions set forth in this Agreement, AFC shall pay to each Originator the Purchase Price for the Receivables generated by such Originator during the immediately preceding month as follows: (a) First, the Purchase Price shall be netted against the accrued and unpaid interest under the Originator Note issued by such Originator, thereby fulfilling such Originator's obligation to pay such accrued and unpaid interest to AFC to the extent of such netting, until such accrued and unpaid interest is reduced to zero; Purchase and Sale Agreement - 8 (b) Second, to the extent any portion of the Purchase Price remains unpaid, such remaining Purchase Price shall be netted against the principal amount outstanding under the Originator Note issued by such Originator, thereby fulfilling such Originator's obligation to pay such principal amount to AFC to the extent of such netting, until such outstanding principal amount is reduced to zero; and (c) Third, to the extent any portion of the Purchase Price remains unpaid, the principal amount outstanding under the AFC Note issued to such Originator shall be increased by an amount equal to such remaining Purchase Price. Servicer shall make all appropriate record keeping entries with respect to the Originator Notes and the AFC Notes or otherwise to reflect the foregoing payments and adjustments and to reflect disbursements and payments of Originator Loans, and Servicer's books and records shall constitute rebuttable presumptive evidence of the principal amount of and accrued interest on any AFC Note or Originator Note at any time. Furthermore, Servicer shall hold the AFC Notes for the benefit of the Originators. Each Originator hereby irrevocably authorizes Servicer to mark the AFC Notes "CANCELLED" and to return such AFC Notes to AFC upon the final payment thereof after the occurrence of the Purchase and Sale Termination Date. SECTION 3.3 Settlement as to Specific Receivables. If on the day of purchase of any Receivable from any Originator hereunder any of the representations or warranties relating to title set forth in Section 6.12 is not true with respect to such Receivable, then such Originator forthwith shall deliver to Servicer for deposit into a Lock-box Account same day funds in an amount equal to the Unpaid Balance of such Receivable for application by Servicer to the same extent as if Collections of such Unpaid Balance had actually been received on such date; provided, that if AFC thereafter receives payment on account of Collections due with respect to such Receivable, AFC promptly shall deliver such funds to such Originator. SECTION 3.4 Settlement as to Dilution. Each Purchase Report (other than the Purchase Report to be delivered on the Initial Closing Date) shall include, in respect of the Receivables previously generated by each particular Originator (including those Receivables, if any, that were transferred by such Originator on the Initial Closing Date pursuant to the Subscription Agreement), a calculation of the aggregate net reduction in the aggregate Unpaid Balance of such Receivables owed by particular Obligors on account of any defective, rejected or returned goods or services, any cash discount, or any incorrect billings, other adjustments, or setoffs in respect of any claims by the Obligor(s) thereof against such Originator or any of its Affiliates (whether such claims arise out of the same or a related or unrelated transaction), during the most recent month, as indicated on the books of AFC (or, for periods prior to the Initial Closing Date, the books of such Originator). The Purchase Price that otherwise would be paid to such Originator on the Payment Date on which such Purchase Report is delivered shall be decreased by the amount of such net reduction. If there have been no purchases of Receivables (or insufficiently large purchases of Receivables) from such Originator during the month immediately preceding any Payment Date, any amount owed by which Purchase and Sale Agreement - 9 the Purchase Price payable to an Originator would have been reduced pursuant to the immediately preceding sentence either: (i) shall be paid in cash by such Originator to AFC, or (ii) shall be deemed to be a payment under, and shall be deducted from the principal amount outstanding under, the AFC Note issued to such Originator, to the extent that such payment and reduction is permitted under Section 7.03(f) of the Receivables Purchase Agreement. ARTICLE IV AFC NOTE AND ORIGINATOR NOTE OPERATIONS SECTION 4.1 AFC Note and Originator Note Payments. All payments under all AFC Notes and Originator Notes shall be made to Servicer for the account of the applicable payee thereof. To the extent that a payment is due and payable (and permitted to be paid) under an AFC Note issued to a particular Originator on the same day that a payment is due and payable under the Originator Note issued by such Originator as a result of a demand for payment thereunder by AFC, such payment obligations shall be netted and the only payment that actually shall be made on such day shall be made (a) by the Person owing the larger amount and (b) in an amount equal to the difference between the two amounts that otherwise would be due and payable on such day. ARTICLE V CONDITIONS OF PURCHASES SECTION 5.1 Conditions Precedent to Purchase. The effectiveness of this Agreement is subject to the condition precedent that Servicer (on AFC's behalf) shall have received, on or before the date hereof, the following, each (unless otherwise indicated) dated the date hereof, and each in form and substance satisfactory to Servicer (acting on AFC's behalf): (a) Except to the extent already executed and delivered in connection with the Original PSA, an Originator Assignment Certificate in the form of Exhibit D from each Originator, duly completed, executed and delivered by such Originator; (b) A copy of the resolutions of the Board of Directors of each Originator approving the amendment and restatement of the Original PSA and the transactions contemplated hereby, certified by the respective Secretary or Assistant Secretary of each Originator; Purchase and Sale Agreement - 10 (c) Good standing certificates for each Originator issued as of a recent date acceptable to Servicer by the Secretary of State of the jurisdiction of such Person's incorporation; (d) Except to the extent that the certificates executed in connection with the Original PSA remain true and correct, a certificate of the Secretary or Assistant Secretary of each Originator certifying the names and true signatures of the officers authorized on such Person's behalf to sign the Transaction Documents to be delivered by it (on which certificate Servicer and AFC may conclusively rely until such time as Servicer shall receive from such Person a revised certificate meeting the requirements of this subsection (d)); (e) Except to the extent that the certificate of incorporation, other organizational document and/or by-laws delivered in connection with the Original PSA remain true and correct, the certificate or articles of incorporation or other organizational document of each Originator, duly certified by the Secretary of State of the jurisdiction of such Originator's incorporation as of a recent date acceptable to Servicer, together with a copy of the by-laws of such Originator, each duly certified by the Secretary or an Assistant Secretary of such Originator; (f) Except to the extent already filed in connection with the Original PSA, originals of the proper financing statements (Form UCC-1) that have been duly executed and name each Originator as the assignor and AFC as the assignee (and Purchaser or Bank of Montreal Trust Company (as Collateral Trustee), as assignee of AFC) of the Receivables generated by such Originator as may be necessary or, in Servicer's or the Agent's opinion, desirable under the UCC of all appropriate jurisdictions to perfect AFC's ownership interest in all Receivables and such other rights, accounts, instruments and moneys (including, without limitation, Related Security) in which an ownership or security interest may be assigned to it hereunder; (g)(i) A written search report from a Person satisfactory to Servicer listing all effective financing statements that name any Originator as debtor or assignor and that are filed in the jurisdictions in which filings were made pursuant to the foregoing subsection (f), together with copies of such financing statements (none of which, except for those described in the foregoing subsection (f), shall cover any Receivable or any right related to any Receivable that is of the type described in Section 1.1) which is to be sold to AFC hereunder, and (ii) tax and judgment lien search reports from a Person satisfactory to Servicer showing no evidence of such liens filed against any Originator; (h) A favorable opinion of Simpson Thatcher & Bartlett, special counsel to Amphenol and the other Originators, in form and substance satisfactory to Servicer and the Agent; Purchase and Sale Agreement - 11 (i) Except to the extent already evidenced in connection with the Original PSA, evidence: (i) of the execution and delivery by each of the parties thereto of each of the other Transaction Documents to be executed and delivered in connection herewith and (ii) that each of the conditions precedent to the execution, delivery and effectiveness of such other Transaction Documents has been satisfied to Servicer's satisfaction; (j) Except to the extent already executed in connection with the Original PSA, an AFC Note in favor of each Originator, duly executed by AFC; (k) Except to the extent already executed in connection with the Original PSA, an Originator Note in favor of AFC from each Originator, duly executed by such Originator; (l) A certificate from an officer of each Originator to the effect that Servicer and each Originator have placed on the most recent, and have taken all steps reasonably necessary to ensure that there shall be placed on each subsequent, data processing report that it generates which are of the type that a proposed purchaser or lender would use to evaluate the Receivables, the following legend (or the substantive equivalent thereof): "THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO AMPHENOL FUNDING CORP. PURSUANT TO AN AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT, DATED AS OF MAY 19, 1997, AS AMENDED, AMONG AMPHENOL CORPORATION, CERTAIN OTHER ORIGINATORS, AND AMPHENOL FUNDING CORP.; AND UNDIVIDED, FRACTIONAL OWNERSHIP INTERESTS IN THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION PURSUANT TO AN AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT, DATED AS OF MAY 19, 1997, AS AMENDED, AMONG AMPHENOL FUNDING CORP., AMPHENOL CORPORATION, POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION AND NESBITT BURNS SECURITIES, INC., AS THE AGENT"; and (m) Except to the extent already executed in connection with the Original PSA, a duly executed counterpart of the Subscription Agreement from each Originator party thereto. SECTION 5.2 Certification as to Representations and Warranties. Each Originator, by accepting the Purchase Price related to each purchase of Receivables generated by such Originator, shall be deemed to have certified that the representations and warranties contained in Article VI are true and correct on and as of such day, with the same effect as though made on and as of such day (except to the extent that any such representation or warranty is expressed to be made only as of an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date). Purchase and Sale Agreement - 12 ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE ORIGINATORS In order to induce AFC to enter into this Agreement and to make purchases hereunder, each Originator hereby makes with respect to itself, and Amphenol, jointly and severally, with each Originator makes with respect to such Originator, the representations and warranties set forth in this Article VI. SECTION 6.1 Organization and Good Standing. Such Originator has been duly organized and is validly existing as a corporation in good standing under the laws of the state of its incorporation, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted. SECTION 6.2 Due Qualification. Such Originator is duly licensed or qualified to do business as a foreign corporation in good standing in all jurisdictions in which the ownership or lease of its property or the conduct of its business requires such licensing or qualification (except to the extent that the failure to be so licensed or qualified would not be reasonably likely to have a Material Adverse Effect). SECTION 6.3 Power and Authority; Due Authorization. Such Originator has (a) all necessary power, authority and legal right (i) to execute and deliver, and perform its obligations under, each Transaction Document to which it is a party and (ii) to generate, own, sell and assign Receivables on the terms and subject to the conditions herein and therein provided; and (b) duly authorized such execution and delivery and such sale and assignment and the performance of such obligations by all necessary corporate action (including, if required, all shareholder action). SECTION 6.4 Valid Sale; Binding Obligations. Each sale made by such Originator pursuant to this Agreement shall constitute a valid sale, transfer and assignment of Receivables to AFC, enforceable against creditors of, and purchasers from, such Originator; and this Agreement constitutes, and each other Transaction Document signed or to be signed by such Originator, when duly executed and delivered, constitutes or will constitute, a legal, valid and binding obligation of such Originator, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law. SECTION 6.5 No Violation. The consummation of the transactions contemplated by this Agreement and the other Transaction Documents, and the fulfillment of the terms hereof or thereof, will not (a) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice, lapse of time or both) a default under (i) such Originator's articles or certificate of incorporation or by-laws, or (ii) any indenture, loan agreement, mortgage, deed of trust Purchase and Sale Agreement - 13 or other agreement or instrument to which it is a party or by which it or any of its property is bound, except for any conflict, breach or default that would not be reasonably likely to have a Material Adverse Effect, (b) result in the creation or imposition of any Adverse Claim upon any of its properties pursuant to the terms of any such indenture, loan agreement, mortgage, deed of trust or other agreement or instrument, other than the Transaction Documents, or (c) violate any law or any order, rule or regulation applicable to it of any court or of any federal, state or foreign regulatory body, administrative agency or other governmental instrumentality having jurisdiction over it or any of its properties, except for any violation that would not be reasonably likely to have a Material Adverse Effect. SECTION 6.6 Proceedings. Except as set forth in Exhibit F, there is no action, suit, proceeding or investigation pending before any court, regulatory body, arbitrator, administrative agency or other tribunal or governmental instrumentality (a) asserting the invalidity of any Transaction Document, (b) seeking to prevent the issuance of such Originator's Originator Assignment Certificate or the consummation of any of the transactions contemplated by any Transaction Document, or (c) seeking any determination or ruling that is reasonably likely to have a Material Adverse Effect. SECTION 6.7 Bulk Sales Acts. No transaction contemplated hereby requires compliance with, or will be subject to avoidance under, any bulk sales act or similar law. SECTION 6.8 Government Approvals. Except for the filing of the UCC financing statements referred to in Article V, all of which, at the time required in Article V, shall have been duly made and shall be in full force and effect, no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for such Originator's due execution, delivery and performance of any Transaction Document to which it is a party, except where the failure to receive or make such authorization, approval, action, notice or filing would not be reasonably likely to have a Material Adverse Effect. SECTION 6.9 Material Adverse Effect. Since December 31, 1996, no event has occurred that has had, or is reasonably likely to have, a Material Adverse Effect. SECTION 6.10 Licenses, Contingent Liabilities and Labor Controversies. (a) Such Originator has not failed to obtain any licenses, permits, franchises or other governmental authorizations necessary to the ownership of its properties or to the conduct of its business, which violation or failure to obtain would be reasonably likely to have a Material Adverse Effect. (b) There are no labor controversies pending against such Originator that have had (or are reasonably likely to have) a Material Adverse Effect. Purchase and Sale Agreement - 14 SECTION 6.11 Margin Regulations. No use of any funds acquired by such Originator under this Agreement will conflict with or contravene any of Regulations G, T, U and X promulgated by the Board of Governors of the Federal Reserve System from time to time. SECTION 6.12 Quality of Title. (a) Each Receivable of such Originator (together with the Related Security for such Receivable) which is to be sold to AFC hereunder is or shall be owned by such Originator, free and clear of any Adverse Claim, except as provided herein and in the Receivables Purchase Agreement. Whenever AFC makes a purchase hereunder, it shall have acquired and shall continue to have maintained a valid and perfected ownership interest (free and clear of any Adverse Claim) in all Receivables generated by such Originator and all Collections related thereto, and in such Originator's entire right, title and interest in and to the Related Security with respect thereto. (b) No effective financing statement or other instrument similar in effect covering any Receivable generated by such Originator or any right related to any such Receivable that is of the type described in Section 1.1 is on file in any recording office except such as may be filed in favor of AFC or the Originators, as the case may be, in accordance with this Agreement or in favor of Purchaser in accordance with the Receivables Purchase Agreement. SECTION 6.13 Accuracy of Information. All factual written information heretofore or contemporaneously furnished (and prepared) by such Originator to AFC, Purchaser or the Agent for purposes of or in connection with any Transaction Document or any transaction contemplated hereby or thereby is, and all other such factual written information hereafter furnished (and prepared) by such Originator to AFC, Purchaser or the Agent pursuant to or in connection with any Transaction Document will be, true and accurate in every material respect on the date as of which such information is dated or certified. No information contained in any report delivered pursuant to Section 7.2 or in any Purchase Report shall be incomplete by omitting to state any material fact necessary to make such information not misleading on the date as of which such information is dated or certified. SECTION 6.14 Offices. Such Originator's principal place of business and chief executive office is located at the address set forth under such Originator's signature hereto, and the offices where such Originator keeps all its books, records and documents evidencing its Receivables, the related Contracts and all other agreements related to such Receivables are located at the addresses specified in Exhibit G (or at such other locations, notified to Servicer and the Agent in accordance with Section 7.1(f), in jurisdictions where all action required by Section 8.3 has been taken and completed). SECTION 6.15 Trade Names. Such Originator does not use any trade name other than its actual corporate name and the trade names set forth in Exhibit H. From and after December 3, 1988, such Originator has not been known by any legal name other than its corporate name as of the date hereof, nor has such Originator been the subject of any merger or other corporate reorganization. Purchase and Sale Agreement - 15 SECTION 6.16 Taxes. Such Originator has filed all tax returns and reports required by law to have been filed by it and has paid all taxes and governmental charges thereby shown to be owing, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books. SECTION 6.17 Compliance with Applicable Laws. Such Originator is in compliance with the requirements of all applicable laws, rules, regulations and orders of all governmental authorities, a breach of any of which, individually or in the aggregate, would be reasonably likely to have a Material Adverse Effect. ARTICLE VII COVENANTS OF AMPHENOL AND THE OTHER ORIGINATORS SECTION 7.1 Affirmative Covenants. From the date hereof until the first day following the Purchase and Sale Termination Date, each Originator will, unless Servicer (on behalf of AFC) shall otherwise consent in writing: (a) Compliance with Laws, Etc. Comply in all material respects with all applicable laws, rules, regulations and orders with respect to the Receivables generated by it and the Contracts and other agreements related thereto except where the failure to so comply would not materially and adversely affect the collectibility of such Receivables or the rights of AFC hereunder. (b) Preservation of Corporate Existence. Preserve and maintain its corporate existence, rights, franchises and privileges in the jurisdiction of its incorporation, and qualify and remain qualified in good standing as a foreign corporation in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification would be reasonably likely to have a Material Adverse Effect. (c) Receivables Reviews. (i) At any time and from time to time during regular business hours, and upon two Business Days' prior written notice so long as no Termination Event is continuing, permit AFC or the Agent, or their respective agents or representatives, (and/or, if the Agent shall have consented (which consent shall not be unreasonably withheld), the Surety Bond Provider or its agents or representatives) (A) to examine and make copies of and abstracts from all books, records and documents (including, without limitation, computer tapes and disks) in possession or under the control of such Originator relating to Receivables, including, without limitation, the related Contracts and purchase orders and other agreements related thereto, and (B) to visit the offices and properties of such Originator for the purpose of examining such materials described in clause (i)(A) above, and Purchase and Sale Agreement - 16 to discuss matters relating to Receivables originated by it or the performance hereunder with any of the officers or employees of such Originator having knowledge of such matters, and (ii) without limiting the foregoing clause (i), from time to time on request of the Agent (given not more than once in each calendar year so long as no Purchase and Sale Termination Event shall have occurred and be continuing), permit certified public accountants or other auditors acceptable to AFC and the Agent to conduct, at AFC's expense (so long as such expenses do not exceed $15,000 in any calendar year), a review of such Originator's books and records with respect to such Receivables. (d) Keeping of Records and Books of Account. Maintain and implement administrative and operating procedures (including, without limitation, an ability to recreate records evidencing Receivables it generates in the event of the destruction of the originals thereof), and keep and maintain all documents, books, records and other information reasonably necessary or advisable for the collection of such Receivables (including, without limitation, records adequate to permit the daily identification of each new Receivable and all Collections of and adjustments to each existing Receivable). (e) Performance and Compliance with Receivables and Contracts. Timely and fully perform and comply in all material respects with all the provisions, covenants and other promises required to be observed by it under the Contracts and all other agreements related to the Receivables that it generates. (f) Location of Records. Keep its principal place of business and chief executive office, and the offices where it keeps its records concerning or related to Receivables, at the address(es) referred to in Exhibit G or, upon 15 days' prior written notice to AFC and the Agent, at such other locations in jurisdictions where all action required by Section 8.3 shall have been taken and completed. (g) Credit and Collection Policies. Comply in all material respects with its Credit and Collection Policy in connection with the Receivables that it generates and all Contracts and other agreements related thereto. (h) Separate Corporate Existence of AFC. Take such actions as shall be required in order that: (i) AFC's operating expenses will not be paid by such Originator; (ii) Such Originator's books and records will be maintained separately from those of AFC; Purchase and Sale Agreement - 17 (iii) Any financial statements of such Originator which are consolidated to include AFC will contain detailed notes clearly stating that AFC is a separate corporate entity and has sold ownership interests in AFC's accounts receivable; (iv) Such Originator will strictly observe corporate formalities in its dealing with AFC, and funds or other assets of AFC will not be commingled with those of such Originator; (v) AFC shall pay to the appropriate Amphenol Person the marginal increase (or, in the absence of such increase, the market amount of its portion) of the premium payable with respect to any insurance policy that covers AFC and any other Amphenol Person, but AFC shall not, directly or indirectly, be named or enter into an agreement to be named, as a direct or contingent beneficiary or loss payee, under any such insurance policy, with respect to any amounts payable due to occurrences or events related to any other Amphenol Person; (vi) Such Originator will maintain arm's-length relationships with AFC, and such Originator will be compensated at market rates for any services it renders or otherwise furnishes to AFC; and (vii) Such Originator will not be, and will not hold itself out to be, responsible for the debts of AFC or the decisions or actions in respect of the daily business and affairs of AFC. (i) Post Office Boxes. Except to the extent already provided in connection with the Original PSA, within 60 days after the date hereof, deliver to Servicer (on behalf of AFC) a certificate from an authorized officer of such Originator to the effect that (i) the name of the renter of all post office boxes into which Collections may from time to time be mailed have been changed to the name of AFC (unless such post office boxes are in the name of the relevant Lock-box Banks) and (ii) all relevant postmasters have been notified that each of Servicer (and each Servicer Person) and the Agent are authorized to collect mail delivered to such post office boxes (unless such post office boxes are in the name of the relevant Lock-box Banks). SECTION 7.2 Reporting Requirements. From the date hereof until the first day following the Purchase and Sale Termination Date, each Originator will, unless Servicer (on behalf of AFC) shall otherwise consent in writing, furnish to AFC and the Agent (with a copy for Purchaser) the following: (a) ERISA. Promptly after receipt of any notice with respect to any Reportable Event (as defined in Title IV of ERISA) with respect to such Originator that would be reasonably likely to have a Material Adverse Effect, a copy of such notice; Purchase and Sale Agreement - 18 (b) Purchase and Sale Termination Events. As soon as possible after the occurrence of, and in any event within three Business Days after the occurrence of, each Purchase and Sale Termination Event or each Unmatured Purchase and Sale Termination Event in respect of such Originator, a written statement of the chief financial officer or chief accounting officer of such Originator describing such Purchase and Sale Termination Event or Unmatured Purchase and Sale Termination Event and the action that such Originator proposes to take with respect thereto, in each case in reasonable detail; (c) Proceedings. As soon as possible, and in any event within three Business Days after such Originator otherwise has knowledge thereof, written notice of (i) any action, suit, proceeding or investigation of the type described in Section 6.6 not previously disclosed to AFC and (ii) all material adverse developments that have occurred with respect to any previously disclosed actions, suits, proceedings and investigations; and (d) Other. Promptly, from time to time, such other information, documents, records or reports respecting the Receivables or the conditions or operations, financial or otherwise, of such Originator as AFC, Purchaser or the Agent may from time to time reasonably request in order to protect the interests of AFC, Purchaser or the Agent under or as contemplated by the Transaction Documents. SECTION 7.3 Negative Covenants. From the date hereof until the date following the Purchase and Sale Termination Date, each Originator agrees that, unless Servicer (on behalf of AFC) shall otherwise consent in writing, it shall not: (a) Sales, Liens, Etc. Except as otherwise provided herein or in any other Transaction Document, sell, assign (by operation of law or otherwise) or otherwise dispose of, or create or suffer to exist any Adverse Claim upon or with respect to, any Receivable or related Contract or Related Security, or any interest therein, or any Collections thereon, or assign any right to receive income in respect thereof. (b) Extension or Amendment of Receivables. Except as otherwise permitted in Section 8.02(c) of the Receivables Purchase Agreement, extend, amend or otherwise modify the terms of any Receivable generated by it in any material respect, or amend, modify or waive, in any material respect, any term or condition of any Contract related thereto (which term or condition relates to payments under, or the enforcement of, such Contract). (c) Change in Business or Credit and Collection Policy. Make any change in the character of its business or materially alter its Credit and Collection Policy, which change would, in either case, be reasonably likely to have a Material Adverse Effect. Purchase and Sale Agreement - 19 (d) Receivables Not to be Evidenced by Promissory Notes or Chattel Paper. Take any action to cause or permit any Receivable generated by it to become evidenced by any "instrument" or "chattel paper" (as defined in the applicable UCC). (e) Mergers, Acquisitions, Sales, etc. (i) Be a party to any merger or consolidation, except (A) a merger or consolidation involving Amphenol where Amphenol is the surviving corporation, or (B) a merger or consolidation among two or more Originators (including, without limitation, Amphenol), or (ii) directly or indirectly sell, transfer, assign, convey or lease (A) whether in one or a series of transactions, all or substantially all of its assets, except to another Originator (including, without limitation, Amphenol), or (B) any Receivables or any interest therein (other than pursuant to this Agreement). SECTION 7.4 Lock-box Banks. From the date hereof until the date following the Purchase and Sale Termination Date, each Originator agrees that it shall not make any changes in its instructions to Obligors regarding Collections or add or terminate any Lock-box Bank unless the requirements of Section 7.03(d) of the Receivables Purchase Agreement have been met. ARTICLE VIII ADDITIONAL RIGHTS AND OBLIGATIONS IN RESPECT OF THE RECEIVABLES SECTION 8.1 Rights of AFC. Each Originator hereby authorizes AFC, Servicer or their respective designees to take any and all steps in such Originator's name necessary or desirable, in their respective determination, to collect all amounts due under any and all Receivables, including, without limitation, indorsing the name of such Originator on checks and other instruments representing Collections and enforcing such Receivables and the provisions of the related Contracts that concern payment and/or enforcement of rights to payment. SECTION 8.2 Responsibilities of Each Originator. Anything herein to the contrary notwithstanding: (a) Collection Procedures. Each Originator agrees to direct its respective Obligors to make payments of Receivables directly to a post office box related to the relevant Lock-box Account at a Lock-box Bank. Each Originator further agrees to transfer any Collections that it receives directly to Servicer (for AFC's account) within one (1) Business Day of receipt thereof, and agrees that all such Collections shall be deemed to be received in trust for AFC and shall be maintained and segregated separate and apart from all other funds and monies of such Originator until transfer of such Collections to Servicer. Purchase and Sale Agreement - 20 (b) Each Originator shall perform its obligations hereunder, and the exercise by AFC or its designee of any of its rights hereunder shall not relieve such Originator from such obligations. (c) Neither AFC, Servicer, Purchaser nor the Agent shall have any obligation or liability to any Obligor or any other third Person with respect to any Receivables, Contracts related thereto or any other related agreements, nor shall AFC, Servicer, Purchaser or the Agent be obligated to perform any of the obligations of any Originator thereunder. (d) Each Originator hereby grants to Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of such Originator all steps necessary or advisable to indorse, negotiate or otherwise realize on any writing or other right of any kind held or transmitted by such Originator or transmitted or received by AFC (whether or not from such Originator) in connection with any Receivable. SECTION 8.3 Further Action Evidencing Purchases. Each Originator agrees that from time to time, at its expense, it will promptly execute and deliver all further instruments and documents, and take all further action that Servicer may reasonably request in order to perfect, protect or more fully evidence the Receivables (and the rights related thereto that are of the type described in Section 1.1) purchased by AFC hereunder, or to enable AFC to exercise or enforce any of its rights hereunder or under any other Transaction Document. Without limiting the generality of the foregoing, upon the request of Servicer, each Originator will: (a) execute and file such financing or continuation statements, or amendments thereto or assignments thereof, and such other instruments or notices as may be necessary or appropriate; and (b) mark the master data processing records that evidence or list (i) such Receivables and (ii) related Contracts with the legend set forth in Section 5.1(l). Each Originator hereby authorizes AFC or its designee to file one or more financing or continuation statements, and amendments thereto and assignments thereof, relative to all or any of the Receivables (and the rights related thereto that are of the type described in Section 1.1) now existing or hereafter generated by such Originator. If any Originator fails to perform any of its agreements or obligations under this Agreement, AFC or its designee may (but shall not be required to) itself perform, or cause performance of, such agreement or obligation, and the expenses of AFC or its designee incurred in connection therewith shall be payable by such non-performing Originator as provided in Section 10.1. SECTION 8.4 Application of Collections. Any payment by an Obligor in respect of any indebtedness owed by it to any Originator shall, except as otherwise specified by such Obligor or otherwise required by contract or law and unless otherwise instructed by AFC or the Agent, be Purchase and Sale Agreement - 21 applied as a Collection of any Receivable or Receivables of such Obligor to the extent of any amounts then due and payable thereunder before being applied to any other indebtedness of such Obligor. ARTICLE IX PURCHASE AND SALE TERMINATION EVENTS SECTION 9.1 Purchase and Sale Termination Events. Each of the following events or occurrences described in this Section 9.1 shall constitute a "Purchase and Sale Termination Event": (a) A Termination Event shall have occurred and, in the case of a Termination Event (other than one described in Section 9.01(e), (g), (h) or (i) of the Receivables Purchase Agreement), the Agent, at the request (or with the consent) of Purchaser, shall have declared the Commitment Termination Date to have occurred; or (b) Any Originator shall fail to make any payment or deposit to be made by it hereunder when due and such failure shall remain unremedied for five (5) Business Days; or (c) Any representation or warranty made or deemed to be made by any Originator (or any of its officers) under or in connection with this Agreement, any other Transaction Documents or any other information or report delivered pursuant hereto or thereto shall prove to have been false or incorrect in any material respect when made or deemed made; or (d) Any Originator shall fail to perform or observe any other term, covenant or agreement contained in this Agreement on its part to be performed or observed and such failure shall remain unremedied for 30 calendar days after written notice thereof shall have been given by Servicer to such Originator; or (e) An Event of Bankruptcy shall have occurred with respect to any Originator. SECTION 9.2 Remedies. (a) Optional Termination. Upon the occurrence of a Purchase and Sale Termination Event, but subject to the proviso in Section 1.5, AFC (and not Servicer) shall have the option by notice to the Originators (with a copy to the Agent) to declare the Purchase and Sale Termination Date to have occurred. Purchase and Sale Agreement - 22 (b) Remedies Cumulative. Upon any termination of the Facility pursuant to this Section 9.2, AFC shall have, in addition to all other rights and remedies under this Agreement or otherwise, all other rights and remedies provided under the UCC of each applicable jurisdiction and other applicable laws, which rights shall be cumulative. Without limiting the foregoing, the occurrence of the Purchase and Sale Termination Date shall not deny AFC any remedy in addition to termination of the Purchase Facility to which AFC may be otherwise appropriately entitled, whether at law or equity. ARTICLE X INDEMNIFICATION SECTION 10.1 Indemnities by Amphenol and the Originators. Without limiting any other rights which AFC may have hereunder or under applicable law, each Originator, severally and for itself alone, and Amphenol, jointly and severally with each Originator, hereby agrees to indemnify AFC and each of its officers, directors, employees and agents (each of the foregoing Persons being individually called a "Purchase and Sale Indemnified Party"), forthwith on demand, from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys' fees and disbursements (all of the foregoing being collectively called "Purchase and Sale Indemnified Amounts") awarded against or incurred by any of them arising out of or as a result of the failure of such Originator to perform its obligations under this Agreement, any other Transaction Document or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds herefrom or therefrom, excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii) any indemnification which has the effect of recourse for non-payment of the Receivables to any Amphenol Person (except as otherwise specifically provided under this Section 10.1) and (iii) any tax based upon or measured by net income or gross receipts. Without limiting the foregoing, each Originator, severally and for itself alone, and Amphenol, jointly and severally with each Originator, indemnifies each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from: (a) the transfer by such Originator of an interest in any Receivable to any Person other than AFC; (b) the breach of any representation or warranty made by such Originator (or any of its officers) under or in connection with this Agreement or any other Transaction Document, or any information or report delivered by such Originator pursuant hereto or thereto which shall have been false or incorrect in any material respect when made or deemed made; Purchase and Sale Agreement - 23 (c) the failure by such Originator to comply with any applicable law, rule or regulation with respect to any Receivable generated by such Originator or the related Contract, or the nonconformity of any Receivable generated by such Originator or the related Contract with any such applicable law, rule or regulation; (d) the failure to vest and maintain vested in AFC an ownership interest in the Receivables generated by such Originator free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of an act of AFC, whether existing at the time of the purchase of such Receivables or at any time thereafter; (e) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables or purported Receivables generated by such Originator, whether at the time of any purchase or at any subsequent time; (f) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or purported Receivable generated by such Originator (including, without limitation, a defense based on such Receivable's or the related Contract's not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to any such Receivable or the furnishing of or failure to furnish such merchandise or services; (g) any product liability claim arising out of or in connection with merchandise or services that are the subject of any Receivable generated by such Originator; and (h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause (iii) in the proviso to the preceding sentence), all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or ownership of the Receivables generated by such Originator or any Related Security connected with any such Receivables. If for any reason the indemnification provided above in this Section 10.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then each of the Originators, severally and for itself alone, and Amphenol, jointly and severally with each Originator, shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable law. Purchase and Sale Agreement - 24 ARTICLE XI MISCELLANEOUS SECTION 11.1 Amendments, Waivers, etc. (a) The provisions of this Agreement may from time to time be amended, modified or waived, if such amendment, modification or waiver is in writing and consented to by AFC, Servicer and the Originators (with respect to an amendment) or by AFC (with respect to a waiver or consent by it). (b) No failure or delay on the part of AFC, Servicer, any Originator or any third party beneficiary in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power or right preclude any other or further exercise thereof or the exercise of any other power or right. No notice to or demand on AFC, Servicer, Amphenol or any other Originator in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by AFC or Servicer under this Agreement shall, except as may otherwise be stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval under this Agreement shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. (c) The Transaction Documents contain a final and complete integration of all prior expressions by the parties hereto with respect to the subject matter thereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter thereof, superseding all prior oral or written understandings. SECTION 11.2 Notices, etc. All notices and other communications provided for hereunder shall, unless otherwise stated herein, be in writing (including facsimile communication) and shall be personally delivered or sent by facsimile (to be followed by mail) to the intended party at the address or facsimile number of such party set forth under its name on the signature pages hereof or at such other address or facsimile number as shall be designated by such party in a written notice to the other parties hereto. All such notices and communications shall be effective, (i) if personally delivered, when received, and (ii) if transmitted by facsimile, when sent, receipt confirmed by telephone or electronic means. SECTION 11.3 Cumulative Remedies. The remedies herein provided are cumulative and not exclusive of any remedies provided by law. Without limiting the foregoing, Amphenol and each Originator hereby authorize AFC, at any time and from time to time, to the fullest extent permitted by law, to setoff, against any obligations of such Originator to AFC arising in connection with the Transaction Documents (including, without limitation, amounts payable pursuant to Section 10.1) that are then due and payable or that are not then due and payable but are accruing in respect of the then current Settlement Period, any and all indebtedness at any time owing by AFC to or for the credit or the account of Amphenol or any Originator (including pursuant to any AFC Note). Purchase and Sale Agreement - 25 SECTION 11.4 Binding Effect; Assignability. This Agreement shall be binding upon and inure to the benefit of AFC, Amphenol and each Originator and their respective successors and permitted assigns. No Originator may assign any of its rights hereunder or any interest herein without the prior written consent of AFC, except as otherwise herein specifically provided. This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms, and shall remain in full force and effect until such time as the parties hereto shall agree. The rights and remedies with respect to any breach of any representation and warranty made by any Originator pursuant to Article VI and the indemnification and payment provisions of Article X and Section 11.6 shall be continuing and shall survive any termination of this Agreement. SECTION 11.5 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE PERFECTION (AND THE EFFECT OF PERFECTION OR NONPERFECTION) OF AFC'S INTERESTS IN THE RECEIVABLES IS GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK. SECTION 11.6 Costs, Expenses and Taxes. In addition to the obligations of the Originators under Article X, each Originator, severally and for itself alone, and Amphenol, jointly and severally with each Originator, agrees to pay on demand: (a) all costs and expenses in connection with the enforcement of this Agreement, the Originator Assignment Certificates and the other Transaction Documents; and (b) all stamp and other taxes and fees payable or determined to be payable in connection with the execution, delivery, filing and recording of this Agreement or the other Transaction Documents to be delivered hereunder, and agrees to indemnify each Purchase and Sale Indemnified Party against any liabilities with respect to or resulting from any delay in paying or omission to pay such taxes and fees. SECTION 11.7 Submission to Jurisdiction. EACH PARTY HERETO HEREBY IRREVOCABLY (a) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ILLINOIS OR UNITED STATES FEDERAL COURTS SITTING IN CHICAGO, ILLINOIS, OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY TRANSACTION DOCUMENT; (b) AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE OR UNITED STATES FEDERAL COURT; (c) WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING; (d) IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES OF SUCH PROCESS TO SUCH PERSON AT ITS ADDRESS SPECIFIED IN SECTION 11.2; AND (e) AGREES THAT A Purchase and Sale Agreement - 26 FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS SECTION 11.7 SHALL AFFECT AFC'S RIGHT TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING ANY ACTION OR PROCEEDING AGAINST AMPHENOL, ANY ORIGINATOR OR ITS RESPECTIVE PROPERTY IN THE COURTS OF ANY OTHER JURISDICTIONS. SECTION 11.8 Waiver of Jury Trial. EACH PARTY HERETO WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER OR RELATING TO THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, AND AGREES THAT (a) ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY AND (b) ANY PARTY HERETO (OR ANY ASSIGNEE OR THIRD PARTY BENEFICIARY OF THIS AGREEMENT) MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF ANY OTHER PARTY OR PARTIES HERETO TO WAIVER OF ITS OR THEIR RIGHT TO TRIAL BY JURY. SECTION 11.9 Captions and Cross References; Incorporation by Reference. The various captions (including, without limitation, the table of contents) in this Agreement are included for convenience only and shall not affect the meaning or interpretation of any provision of this Agreement. References in this Agreement to any underscored Section or Exhibit are to such Section or Exhibit of this Agreement, as the case may be. Appendix A and the Exhibits hereto are hereby incorporated by reference into and made a part of this Agreement. SECTION 11.10 Execution in Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same Agreement. SECTION 11.11 Acknowledgment and Agreement. (a) By execution below, Amphenol and each other Originator expressly acknowledge and agree that all of AFC's rights, title and interests in, to and under this Agreement shall be assigned by AFC pursuant to the Receivables Purchase Agreement, and Amphenol and each Originator consents to such assignment. Each of the parties hereto acknowledges and agrees that the Agent and Purchaser are third party beneficiaries of the rights of AFC arising hereunder and under the other Transaction Documents to which Amphenol or any Originator is a party. Purchase and Sale Agreement - 27 (b) By execution below, each Originator acknowledges that Purchaser and the Agent are entering into the Receivables Purchase Agreement in reliance upon AFC's identity as a legal entity separate from any Originator. Purchase and Sale Agreement - 28 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written. AMPHENOL FUNDING CORP. By: ---------------------------------------- Name: ------------------------------------ Title: ----------------------------------- Address: 358 Hall Avenue Wallingford, Connecticut 06492 Attention: Treasurer Facsimile: (203) 265-8628 AMPHENOL CORPORATION By: ---------------------------------------- Name: ------------------------------------ Title: ----------------------------------- Address: 358 Hall Avenue Wallingford, Connecticut 06492 Attention: Treasurer Facsimile: (203) 265-8628 AMPHENOL INTERCONNECT PRODUCTS CORPORATION By: ---------------------------------------- Name: ------------------------------------ Title: ----------------------------------- Address: 358 Hall Avenue Wallingford, Connecticut 06492 Attention: Treasurer Facsimile: (203) 265-8628 Purchase and Sale Agreement - 29 PYLE NATIONAL INC. By: ---------------------------------------- Name: ------------------------------------ Title: ----------------------------------- Address: 358 Hall Avenue Wallingford, Connecticut 06492 Attention: Treasurer Facsimile: (203) 265-8628 TIMES FIBER COMMUNICATIONS, INC. By: ---------------------------------------- Name: ------------------------------------ Title: ----------------------------------- Address: 358 Hall Avenue Wallingford, Connecticut 06492 Attention: Treasurer Facsimile: (203) 265-8628 THE SINE COMPANIES, INC. By: ---------------------------------------- Name: ------------------------------------ Title: ----------------------------------- Address: 25325 Joy Boulevard Mt. Clemens, MI 48046-2336 Attention: Treasurer with copies of any notices to: Amphenol Corporation 358 Hall Avenue Purchase and Sale Agreement - 30 Wallingsford, Connecticut 06492 Attention: Treasurer Facsimile: (203) 265-8628 Purchase and Sale Agreement - 31 Exhibit A to Purchase and Sale Agreement FORM OF ORIGINATOR NOTE DEMAND NOTE New York, New York ___________, ___ The undersigned, _____________, a _________ corporation (the "Originator"), for value received, promises to pay to the order of Amphenol Funding Corp., a Delaware corporation ("AFC"), ON DEMAND, the aggregate unpaid principal amount of all loans made by AFC to the Originator (the "Originator Loans") as shown in the records of the Servicer (as such term is defined in the Purchase and Sale Agreement hereinafter referred to), together with accrued interest on such amounts from time to time outstanding hereunder at the rate provided below. The unpaid principal amount of each Originator Loan from time to time outstanding shall bear interest (which also shall be payable ON DEMAND) on each day from (and including) the day on which such Originator Loan was made to (but excluding) the day on which such Originator Loan is paid in full at a rate per annum equal to: (a) the rate borne on such day by the AFC Note payable to the Originator plus (b) one-quarter of one percent (0.25%). Interest hereunder shall be computed for the actual number of days elapsed on the basis of a year consisting of 360 days. This Demand Note is one of the Originator Notes described in, and is subject to the terms and conditions set forth in, the Amended and Restated Purchase and Sale Agreement, dated as of May 19, 1997 (amending and restating the Purchase and Sale Agreement dated as of December 3, 1993, as the same may at any time be amended, supplemented, amended and restated or otherwise modified from time to time in accordance with its terms, the "Purchase and Sale Agreement") among AFC, the Originator and certain other Persons. Reference is hereby made to the Purchase and Sale Agreement for a statement of certain other rights and obligations of AFC and the Originator. All capitalized terms used but not otherwise defined herein have the meanings assigned thereto in the Purchase and Sale Agreement and Appendix A attached thereto. All payments of principal and interest hereunder are to be made in lawful money of the United States of America in same day funds to the account designated from time to time by the Servicer. Purchase and Sale Agreement A - 1 In addition to and not in limitation of the foregoing, the Originator further agrees, subject to any limitation imposed by applicable law, to pay all expenses, including reasonable attorneys' fees and legal expenses, incurred by the holder of this Demand Note in seeking to collect any amounts payable hereunder that are not paid when due. No failure or delay on the part of AFC or any other holder of this Demand Note in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power or right preclude any other or further exercise thereof or the exercise of any other power or right. No notice to or demand on the Originator shall entitle it to any notice or demand in similar or other circumstances. No amendment, modification or waiver of, or consent with respect to, any provision of this Demand Note shall in any event be effective unless: (a) the same shall be in writing and signed and delivered by the holder hereof and (b) all consents required for such action under the Transaction Documents shall have been received by the appropriate Persons. Upon the occurrence of any Event of Bankruptcy with respect to the Originator, the principal balance hereof and all interest accrued hereon shall be immediately due and payable, without demand, presentment, protest or notice of dishonor. Notwithstanding anything in this Demand Note to the contrary, the Originator shall never be required to pay unearned interest on any amount outstanding hereunder, and shall never be required to pay interest on the principal amount outstanding hereunder, at a rate in excess of the maximum nonusurious interest rate that may be contracted for, charged or received under applicable federal or state law (such maximum rate being herein called the "Highest Lawful Rate"). If the effective rate of interest that would otherwise be payable under this Demand Note would exceed the Highest Lawful Rate, or if the holder of this Demand Note shall receive any unearned interest or shall receive monies that are deemed to constitute interest that would increase the effective rate of interest payable by the Originator under this Demand Note to a rate in excess of the Highest Lawful Rate, then: (a) the amount of interest that would otherwise be payable by the Originator under this Demand Note shall be reduced to the maximum amount allowed by applicable law, and (b) any unearned interest paid by the Originator or any interest paid by the Originator in excess of the Highest Lawful Rate shall, at the option of the holder of this Demand Note, either be refunded to the Originator or credited to the principal amount outstanding under this Demand Note. Without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received by the holder of this Demand Note that are made for the purpose of determining whether such rate exceeds the Highest Lawful Rate applicable to such holder shall be made, to the extent permitted by usury laws applicable to the holder hereof (now or hereafter enacted), by amortizing, prorating and spreading, in equal parts over the period in which the particular Originator Loan has been outstanding, all interest at any time contracted for, charged or received by the holder of this Demand Note in connection herewith. If at any time and from time to time: (i) the amount of interest payable to the holder of this Demand Note on any date shall be computed at the Highest Lawful Rate pursuant to the provisions of the foregoing sentence and (ii) in respect of any subsequent interest computation period the amount of interest otherwise payable to the holder hereof would be less than Purchase and Sale Agreement A - 2 the amount of interest payable to such holder computed at the Highest Lawful Rate, then the amount of interest payable to such holder in respect of such subsequent interest computation period shall continue to be computed at the Highest Lawful Rate until the total amount of interest payable to such holder shall equal the total amount of interest that would have been payable to such holder if the total amount of interest had been computed without giving effect to the provisions of the foregoing sentence. THIS DEMAND NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF LAW). ______________________, a __________ corporation By: --------------------------------- Name: ----------------------------- Title: ---------------------------- Purchase and Sale Agreement A - 3 Exhibit B to Purchase and Sale Agreement FORM OF PURCHASE REPORT - ------------------------- |PURCHASE REPORT| AS OF: - ------------------------- ----------------- ORIGINATOR: ----------------------- ----------------------- AGGREGATE UNPAID BALANCE: ------------------------ PURCHASE DISCOUNT ----------------- a. LOSS DISCOUNT ----------------- b. SERVICING DISCOUNT ----------------- c. COST OF FUNDS DISCOUNT ----------------- d. SPREAD DISCOUNT ----------------- PURCHASE PRICE (AUB-PD) $0.0 Purchase and Sale Agreement B - 1 Exhibit C to Purchase and Sale Agreement FORM OF AFC NOTE NON-NEGOTIABLE TERM NOTE New York, New York _________, ___ FOR VALUE RECEIVED, the undersigned, Amphenol Funding Corp., a Delaware corporation ("AFC"), promises to pay to ___________, a ________ corporation (the "Originator"), on the terms and subject to the conditions set forth herein and in the Purchase and Sale Agreement referred to below, the aggregate unpaid Purchase Price of all Receivables purchased by AFC from the Originator pursuant to such Purchase and Sale Agreement, as such unpaid Purchase Price is shown in the records of the Servicer. 1. Purchase and Sale Agreement. This Term Note is one of the AFC Notes described in, and is subject to the terms and conditions set forth in, the Amended and Restated Purchase and Sale Agreement, dated as of May 19, 1997 (amending and restating the Purchase and Sale Agreement dated as of December 3, 1993, as the same may be amended, supplemented, amended and restated or otherwise modified in accordance with its terms, the "Purchase and Sale Agreement"), among AFC, the Originator and certain other Persons. Reference is hereby made to the Purchase and Sale Agreement for a statement of certain other rights and obligations of AFC and the Originator. 2. Definitions. Capitalized terms used (but not defined) herein have the meanings assigned thereto in Appendix A to the Purchase and Sale Agreement. In addition, as used herein, the following terms have the following meanings: "Bankruptcy Proceedings" has the meaning set forth in paragraph 9(b) hereof. "Final Maturity Date" means the Payment Date immediately following the date that falls one hundred twenty one (121) days after the Purchase and Sale Termination Date. "Interest Period" means the period from and including a Payment Date (or, in the case of the first Interest Period, the date hereof) to but excluding the next Payment Date. Purchase and Sale Agreement C - 1 "Senior Interests" means, collectively: (a) all accrued Earned Yield on the Aggregate Investment, (b) the fees referred to in Section 4.01 of the Receivables Purchase Agreement, (c) all amounts payable pursuant to Section 4.02 of the Receivables Purchase Agreement, (d) the Aggregate Investment and (e) all other Obligations that are due and payable, together with any and all interest and Earned Yield accruing on any such amount after the commencement of any Bankruptcy Proceedings, notwithstanding any provision or rule of law that might restrict the rights of any Senior Interest Holder, as against AFC or anyone else, to collect such interest. "Senior Interest Holders" means, collectively, the Purchaser, the Agent and the Indemnified Parties. "Subordination Provisions" means, collectively, clauses (a) through (l) of paragraph 9 hereof. "Telerate Screen Rate" means, for any Interest Period, the rate for thirty day commercial paper denominated in Dollars that appears on Page 1250 of the Dow Jones Telerate Service (or such other page as may replace that page on that service for the purpose of displaying Dollar commercial paper rates) at approximately 9:00 a.m. (New York City time) on the first day of such Interest Period. 3. Interest. Subject to the Subordination Provisions set forth below, AFC promises to pay interest on this Term Note as follows: (a) before the Final Maturity Date, the aggregate unpaid Purchase Price from time to time outstanding during any Interest Period shall bear interest at a rate per annum equal to the Telerate Screen Rate for such Interest Period, as determined by the Servicer, and (b) from (and including) the Final Maturity Date to (but excluding) the date on which the entire aggregate unpaid Purchase Price is fully paid, the aggregate unpaid Purchase Price from time to time outstanding shall bear interest at a rate per annum equal to the rate of interest publicly announced from time to time by the Bank of Montreal as its "base rate," "reference rate" or other comparable rate, as determined by the Servicer. 4. Interest Payment Dates. Subject to the Subordination Provisions, AFC shall pay accrued interest on this Term Note on each Payment Date, and shall pay accrued interest on the amount of each principal payment made in cash on a date other than a Payment Date at the time of such principal payment. 5. Basis of Computation. Interest accrued hereunder that is computed by reference to the Telerate Screen Rate shall be computed for the actual number of days elapsed on the basis of a 360-day year, and interest accrued hereunder that is computed by reference to the rate described in Purchase and Sale Agreement C - 2 paragraph 3(b) hereof shall be computed for the actual number of days elapsed on the basis of a 365- or 366-day year, as applicable. 6. Principal Payment Dates. Subject to the Subordination Provisions, payments of the principal amount of this Term Note shall be made as follows: (a) the principal amount of this Term Note shall be reduced by an amount equal to each payment deemed made pursuant to Section 3.4(ii) of the Purchase and Sale Agreement, and (b) the entire remaining unpaid Purchase Price of all Receivables purchased by AFC from the Originator pursuant to the Purchase and Sale Agreement shall be paid on the Final Maturity Date. Subject to the Subordination Provisions, the principal amount of and accrued interest on this Term Note may be prepaid on any Business Day without premium or penalty. 7. Payment Mechanics. All payments of principal and interest hereunder are to be made in lawful money of the United States of America in the manner specified in Section 4.1 of the Purchase and Sale Agreement. 8. Enforcement Expenses. In addition to and not in limitation of the foregoing, but subject to the Subordination Provisions and to any limitation imposed by applicable law, AFC agrees to pay all expenses, including reasonable attorneys' fees and legal expenses, incurred by the Originator in seeking to collect any amounts payable hereunder that are not paid when due. 9. Subordination Provisions. AFC covenants and agrees, and the Originator and any other holder of this Term Note (collectively, the Originator and any such other holder are called the "Holder"), by its acceptance of this Term Note, likewise covenants and agrees on behalf of itself and any other holder of this Term Note, that the payment of the principal amount of and interest on this Term Note is hereby expressly subordinated in right of payment to the payment and performance of the Senior Interests to the extent and in the manner set forth as follows: (a) no payment or other distribution of AFC's assets of any kind or character, whether in cash, securities or other rights or property, shall be made on account of this Term Note except to the extent such payment or other distribution is: (i) permitted under Section 7.03(f) of the Receivables Purchase Agreement or (ii) made pursuant to paragraph 6(a) or (b) of this Term Note, (b) in the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to AFC, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or Purchase and Sale Agreement C - 3 upon an assignment for the benefit of creditors, or any other marshalling of the assets and liabilities of AFC or any sale of all or substantially all of the assets of AFC other than as permitted by the Purchase and Sale Agreement (such proceedings being herein collectively called "Bankruptcy Proceedings"), the Senior Interests shall first be paid and performed in full and in cash before the Holder shall be entitled to receive and to retain any payment or distribution in respect of this Term Note. In order to implement the foregoing: (i) all payments and distributions of any kind or character in respect of this Term Note to which the Holder would be entitled except for this clause (b) shall be made directly to the Agent (for the benefit of the Senior Interest Holders), (ii) the Holder shall promptly file a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding amount of this Term Note, and shall use commercially reasonable efforts to cause said claim(s) to be approved and all payments and other distributions in respect thereof to be made directly to the Agent (for the benefit of the Senior Interest Holders) until the Senior Interests shall have been paid and performed in full and in cash, and (iii) the Holder hereby irrevocably agrees that the Purchaser (or the Agent acting on the Purchaser's behalf), in the name of the Holder or otherwise, may demand, sue for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Holder relating to this Term Note, in each case until the Senior Interests shall have been paid and performed in full and in cash, (c) if the Holder receives any payment or other distribution of any kind or character from AFC or from any other source whatsoever in respect of this Term Note, other than as expressly permitted by the terms of this Term Note, such payment or other distribution shall be received in trust for the Senior Interest Holders and shall be turned over by the Holder to the Agent (for the benefit of the Senior Interest Holders) forthwith. The Holder will mark its books and records so as clearly to indicate that this Term Note is subordinated in accordance with the terms hereof. All payments and distributions received by the Agent in respect of this Term Note, to the extent received in or converted into cash, may be applied by the Agent (for the benefit of the Senior Interest Holders) first to the payment of any and all expenses (including reasonable attorneys' fees and legal expenses) paid or incurred by the Senior Interest Holders in enforcing these Subordination Provisions or in endeavoring to collect or realize upon this Term Note, and any balance thereof shall, solely as between the Holder and the Senior Interest Holders, be applied by the Agent (in the order of application set forth in Section 3.03(c) of the Receivables Purchase Agreement) toward the payment of the Senior Interests; but as between AFC and its creditors, no such payments or distributions of any kind or character shall be deemed to be payments or distributions in respect of the Senior Interests, (d) notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Term Note, while any Bankruptcy Proceedings are pending the Holder shall not be subrogated to the then existing rights of the Senior Interest Holders in Purchase and Sale Agreement C - 4 respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. If no Bankruptcy Proceedings are pending, the Holder shall only be entitled to exercise any subrogation rights that it may acquire (by reason of a payment or distribution to the Senior Interest Holders in respect of this Term Note) to the extent that any payment arising out of the exercise of such rights would be permitted under Section 7.03(f) of the Receivables Purchase Agreement, (e) these Subordination Provisions are intended solely for the purpose of defining the relative rights of the Holder, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in these Subordination Provisions or elsewhere in this Term Note is intended to or shall impair, as between AFC, its creditors (other than the Senior Interest Holders) and the Holder, AFC's obligation, which is unconditional and absolute, to pay the Holder the principal of and interest on this Term Note as and when the same shall become due and payable in accordance with the terms hereof or to affect the relative rights of the Holder and creditors of AFC (other than the Senior Interest Holders), (f) the Holder shall not, until the Senior Interests have been paid and performed in full and in cash: (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or collect, or subordinate to any obligation of AFC, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due, other than to the Senior Interests, this Term Note or any rights in respect hereof, or (ii) convert this Term Note into an equity interest in AFC, unless the Holder shall have received the prior written consent of the Agent and the Purchaser in each case, (g) the Holder shall not, without the advance written consent of the Agent and the Purchaser, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to AFC until at least one year and one day shall have passed since the Senior Interests shall have been paid and performed in full and in cash, (h) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made, (i) each of the Senior Interest Holders may, from time to time, at its sole discretion, without notice to the Holder, and without waiving any of its rights under these Subordination Provisions, take any or all of the following actions: (i) retain or obtain an interest in any property to secure any of the Senior Interests, (ii) retain or obtain the primary or secondary obligations of any other obligor(s) with respect to any of the Senior Interests, (iii) extend or renew for one or more periods (whether or not longer than the Purchase and Sale Agreement C - 5 original period), alter or exchange any of the Senior Interests, or release or compromise any obligation of any nature with respect to any of the Senior Interests, (iv) amend, supplement, amend and restate, or otherwise modify any Transaction Document, (v) release its security interest in, or surrender, release or permit any substitution or exchange for, all or any part of any rights or property securing any of the Senior Interests, and (vi) extend or renew for one or more periods (whether or not longer than the original period), or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any rights or property securing any of the Senior Interests, (j) the Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of the Senior Interest Holders, (ii) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests, and (iii) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor, (k) each of the Senior Interest Holders may, from time to time, on the terms and subject to the conditions set forth in the Transaction Documents to which such Persons are party, but without notice to the Holder, assign or transfer any or all of the Senior Interests, or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these Subordination Provisions, and every immediate and successive assignee or transferee of any of the Senior Interests or of any interest of such assignee or transferee in any of the Senior Interests shall be entitled to the benefits of these Subordination Provisions to the same extent as if such assignee or transferee were the assignor or transferor, and (l) these Subordination Provisions constitute a continuing offer from the Holder to all Persons who become the holders of, or who continue to hold, Senior Interests; and these Subordination Provisions are made for the benefit of the Senior Interest Holders, and the Agent may proceed to enforce such provisions on behalf of each of such Persons. 10. General. No failure or delay on the part of the Holder in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power or right preclude any other or further exercise thereof or the exercise of any other power or right. No amendment, modification or waiver of, or consent with respect to, any provision of this Term Note shall in any event be effective unless: (a) the same shall be in writing and signed and delivered by AFC and the Holder and (b) all consents required for such actions under the Transaction Documents shall have been received by the appropriate Persons. 11. Maximum Interest. Notwithstanding anything in this Term Note to the contrary, AFC shall never be required to pay unearned interest on any amount outstanding hereunder and shall never be required to pay interest on the principal amount outstanding hereunder at a rate in excess Purchase and Sale Agreement C - 6 of the maximum nonusurious interest rate that may be contracted for, charged or received under applicable federal or state law (such maximum rate being herein called the "Highest Lawful Rate"). If the effective rate of interest that would otherwise by payable under this Term Note would exceed the Highest Lawful Rate, or if the Holder shall receive any unearned interest or shall receive monies that are deemed to constitute interest that would increase the effective rate of interest payable by AFC under this Term Note to a rate in excess of the Highest Lawful Rate, then: (a) the amount of interest that would otherwise by payable by AFC under this Term Note shall be reduced to the amount allowed by applicable law, and (b) any unearned interest paid by AFC or any interest paid by AFC in excess of the Highest Lawful Rate shall be refunded to AFC. Without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received by the Holder under this Term Note that are made for the purpose of determining whether such rate exceeds the Highest Lawful Rate applicable to the Holder shall be made, to the extent permitted by usury laws applicable to the Holder (now or hereafter enacted), by amortizing, prorating and spreading, in equal parts over the period in which any amount has been outstanding hereunder all interest at any time contracted for, charged or received by the Holder in connection herewith. If at any time and from time to time: (i) the amount of interest payable to the Holder on any date shall be computed at the Highest Lawful Rate pursuant to the provisions of the foregoing sentence and (ii) in respect of any subsequent interest computation period the amount of interest otherwise payable to the Holder would be less than the amount of interest payable to the Holder computed at the Highest Lawful Rate, then the amount of interest payable to the Holder in respect of such subsequent interest computation period shall continue to be computed at the Highest Lawful Rate until the total amount of interest payable to the Holder shall equal the total amount of interest that would have been payable to the Holder if the total amount of interest had been computed without giving effect to the provisions of the foregoing sentence. 12. No Negotiation. This Term Note is not negotiable. 13. Governing Law. THIS TERM NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK, AND SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF LAW). Purchase and Sale Agreement C - 7 14. Captions. Paragraph captions used in this Term Note are for convenience only and shall not affect the meaning or interpretation of any provision of this Term Note. AMPHENOL FUNDING CORP., a Delaware corporation By: --------------------------------- Name: ----------------------------- Title: ---------------------------- Purchase and Sale Agreement C - 8 Exhibit D to Purchase and Sale Agreement FORM OF ORIGINATOR ASSIGNMENT CERTIFICATE Reference is made to the Purchase and Sale Agreement, dated as of May 19, 1997 (amending and restating the Purchase and Sale Agreement dated as of December 3, 1993, as the same may be amended, supplemented, amended and restated or otherwise modified from time to time, the "Purchase and Sale Agreement"), among the undersigned, the other Originators named therein, Amphenol Funding Corp. ("AFC"), and Amphenol Corporation, individually and as the initial Servicer. Unless otherwise defined herein, capitalized terms used herein have the meanings provided in Appendix A to the Purchase and Sale Agreement. The undersigned hereby sells, assigns and transfers unto AFC and its successors and assigns all right, title and interest of the undersigned in and to: (a) each Receivable of the undersigned that existed and was owing to the undersigned as at the closing of the undersigned's business on _________, ____, (b) each Receivable created by the undersigned from and including the closing of the undersigned's business on _________, ____ to and including the Purchase and Sale Termination Date, (c) all rights to, but not the obligations under, all Related Security, (d) all monies due or to become due with respect to the Receivables described in clauses (a) and (b), (e) all proceeds of Receivables described in clauses (a) and (b) (as defined in the applicable UCC) that are or were received by the undersigned on or after the closing of the undersigned's business on _________, ____ including (without limitation) all funds that either are received by the undersigned, AFC or the Servicer from or on behalf of the Obligors in payment of any amounts owed (including, without limitation, invoice price, finance charges, interest and all other charges) in respect of Receivables, or are applied to such amounts owed by the Obligors (including, without limitation, insurance payments that the undersigned or the Servicer applies in the ordinary course of its business to amounts owed in respect of any Receivable and net proceeds of sale or other disposition of repossessed goods or other collateral or property of the Obligors or any other parties directly or indirectly liable for payment of such Receivables), and (f) all books and records related to any of the foregoing. Purchase and Sale Agreement D - 1 This Originator Assignment Certificate is made without recourse but on the terms and subject to the conditions set forth in the Transaction Documents to which the undersigned is a party. The undersigned acknowledges and agrees that AFC and its successors and assigns are accepting this Originator Assignment Certificate in reliance on the representations, warranties and covenants of the undersigned contained in the Transaction Documents to which the undersigned is a party. THIS ORIGINATOR ASSIGNMENT CERTIFICATE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE PURCHASE AND SALE AGREEMENT AND THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF LAW). The undersigned hereby certifies that, in respect of the Receivables described in clause (a) above, each of the conditions set forth in Section 5.1 of the Purchase and Sale Agreement are satisfied as of the date hereof. IN WITNESS WHEREOF, the undersigned has caused this Originator Assignment Certificate to be duly executed and delivered by its duly authorized officer as of this ____ day of _________, ____. _______________________ a __________ corporation By: -------------------------------- Name: ---------------------------- Title: --------------------------- Purchase and Sale Agreement D - 2 Exhibit E to Purchase and Sale Agreement FORM OF SUBSCRIPTION AGREEMENT This Subscription and Shareholder Agreement (this "Agreement") is entered into as of December 3, 1993 among AMPHENOL FUNDING CORP., a Delaware corporation ("Issuer"), AMPHENOL CORPORATION, a Delaware corporation ("Amphenol"), AMPHENOL INTERCONNECT PRODUCTS CORPORATION, a Delaware corporation ("Amphenol Interconnect"), PYLE NATIONAL INC., a Delaware corporation ("Pyle National"), and TIMES FIBER COMMUNICATIONS, INC., a Delaware corporation ("Times Fiber"). Amphenol, Amphenol Interconnect, Pyle National and Times Fiber are herein collectively called "Purchasers" and each individually is called a "Purchaser". R E C I T A L S A. Issuer is organized under the laws of the State of Delaware for the purpose of purchasing and selling the accounts receivable (and certain related rights) of the Purchasers. B. Simultaneously with the execution and delivery of this Agreement: (i) Issuer, Amphenol and the other Purchasers are entering into a Purchase and Sale Agreement (the "Purchase and Sale Agreement") pursuant to which Purchasers will sell all of the Receivables generated by them (other than Receivables being used to purchase Shares (as defined below) hereunder) to Issuer, and (ii) Issuer, Amphenol, Pooled Accounts Receivable Capital Corporation ("Par Capital"), and Bank of Montreal, as agent for Par Capital (the "Agent"), are entering into a Receivables Purchase Agreement ("Receivables Purchase Agreement") pursuant to which Issuer will sell to Par Capital undivided interests in the Receivables, including those referred to in clauses (i) and the Receivables being contributed to Issuer hereunder. The term "Receivables" and the other capitalized terms used (but not otherwise defined) herein shall have the meanings set forth in the Receivables Purchase Agreement. C. Issuer desires to sell shares of its capital stock to Purchasers, and Purchasers desire to purchase such shares, on the terms set forth in this Agreement. NOW, THEREFORE, Issuer and Purchasers agree as follows: 1. Purchase and Sale of Capital Stock. (a) On the Closing Date, Issuer shall sell to Purchasers, and Purchasers shall purchase from Issuer, an aggregate of 100 shares of common stock, without par value, of Issuer (such aggregate number of shares and common stock herein called the "Shares" and Purchase and Sale Agreement E - 1 "Common Stock," respectively). Each Purchaser shall purchase the number of Shares set forth opposite its name on Schedule 1 hereto. (b)(i) The purchase price for the Shares will consist of an aggregate of Four Million Dollars ($4,000,000) in Receivables to be contributed to the capital of Issuer on the Closing Date. (ii) The Receivables that each Purchaser will contribute will consist of the amounts set forth opposite such Purchaser's name in Schedule 1. (iii) The Shares shall be issued to each Purchaser pro rata in accordance with the amount of Receivables contributed by each Purchaser to Issuer as set forth in Schedule 1 (the valuation of such Receivables transferred to Issuer to be at the lower of the book value thereof and the unpaid balance thereof). Common Stock shall have the rights set forth in the Certificate of Incorporation attached hereto as Exhibit A. 2. Closing. The closing of the purchase and sale of the Shares hereunder (the "Closing") shall be held at the offices of Mayer, Brown & Platt in Chicago, Illinois on December 7, 1993 (the "Closing Date"). On the Closing Date, Issuer shall deliver to each Purchaser a certificate registered in such Purchaser's name representing the number of Shares to be purchased by such Purchaser against delivery to Issuer by such Purchaser of the purchase price set forth in Section 1(b) and Schedule 1. 3. Representations and Warranties of Issuer. Issuer represents and warrants to Purchasers as follows: (a) Issuer is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware, and has all requisite corporate power and authority to carry on its business as proposed to be conducted. (b) Issuer has all requisite legal and corporate power to enter into this Agreement, to issue the Shares and to perform its other obligations under the terms of this Agreement. (c) The authorized capital stock of Issuer as of the date hereof and as of the Closing Date is set forth on Schedule 1 hereto. The Shares have been duly authorized and, when issued, will be validly issued, fully paid and nonassessable. (d) Issuer has taken all corporate action necessary for its authorization, execution, and delivery of, and its performance under, this Agreement, except the issuance of the Shares. (e) This Agreement constitutes a legal, valid and binding obligation of Issuer, enforceable against Issuer in accordance with its terms, except that enforceability may be Purchase and Sale Agreement E - 2 limited by (i) bankruptcy, insolvency or other laws affecting the enforcement of creditors' rights generally and (ii) equitable principles of general applicability. 4. Representations and Warranties of Purchasers. Each Purchaser represents and warrants to Issuer as follows: (a) Such Purchaser is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation, and has all requisite corporate power and authority to carry on its business as conducted on the date hereof. (b) Such Purchaser has taken all actions required for its authorization, execution, and delivery of, and its performance under, this Agreement. (c) This Agreement constitutes a valid and binding obligation of such Purchaser, enforceable against such Purchaser in accordance with its terms, except that enforceability may be limited by: (i) bankruptcy, insolvency or other laws affecting the enforcement of creditors' rights generally and (ii) equitable principles of general applicability. (d) Such Purchaser is purchasing its portion of the Shares for investment for its own account, not as a nominee or agent, and not with a view to the sale or distribution of any part thereof; and such Purchaser has no current intention of selling, granting a participation in, or otherwise distributing, the same. (e) Such Purchaser understands that the Shares have not been registered under the Securities Act of 1933, as amended, or under any other Federal or state law, and that Issuer does not contemplate such a registration. (f) Such Purchaser has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the merits and risks of the transactions contemplated by this Agreement, and has made such investigations in connection herewith as have been deemed necessary or desirable to make such evaluation. 5 Conditions to Purchasers' Obligations at the Closing. Purchasers' obligations to purchase the Shares at the Closing are subject to the fulfillment on or prior to the Closing Date of the following conditions, any of which may be waived in whole or in part by the Purchasers: (a) The representations and warranties made by Issuer herein shall be true and correct when made, and shall be true and correct on the Closing Date with the same force and effect as if they had been made on and as of the same date; and Issuer shall have performed all obligations and conditions herein required to be performed or observed by it on or prior to the Closing Date and all documents incident thereto shall be satisfactory in form and content to Purchasers and their counsel. Purchase and Sale Agreement E - 3 (b) Issuer shall have filed the Certificate of Incorporation, as amended, in the form attached hereto as Exhibit A with the Delaware Secretary of State and adopted the By-laws in the form attached hereto as Exhibit B. (c) The purchase of the Shares by Purchasers hereunder shall be legally permitted by all laws and regulations to which Purchasers or Issuer are subject. 6. Conditions to Issuer's Obligations at the Closing. Issuer's obligation to sell and issue the Shares at the Closing is subject to the fulfillment to Issuer's satisfaction on or prior to the Closing Date of the following conditions, any of which may be waived in whole or in part by Issuer: (a) The representations and warranties made by Purchasers herein shall be true and correct when made, and shall be true and correct on the Closing Date with the same force and effect as if they had been made on and as of the same date; and Purchasers shall have performed all obligations and conditions herein required to be performed or observed by them on or prior to the Closing Date and all documents incident thereto shall be satisfactory in form and content to Issuer and its counsel. (b) The purchase of the Shares by Purchasers hereunder shall be legally permitted by all laws and regulations to which Purchasers or Issuer are subject. (c) Issuer, Amphenol and the other Purchasers shall have entered into the Purchase and Sale Agreement. (d) Issuer, Amphenol, Par Capital and the Agent shall have entered into the Receivables Purchase Agreement. (e) Each Purchaser shall have delivered the purchase price for the Shares to be purchased by it hereunder, by conveyance to Issuer of the amount of the Receivables set forth opposite its name on Schedule 1 (which conveyance shall be pursuant to instruments reasonably satisfactory to Issuer). 7. Restrictions on Transfer; Legend. 7.1 Legend. Each certificate representing the Shares shall be endorsed with the following legend: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT COVERING SUCH SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH RULE Purchase and Sale Agreement E - 4 144 OR ANY SUCCESSOR RULE UNDER THE ACT, OR AMPHENOL FUNDING CORP. (THE "COMPANY") RECEIVES AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A SUBSCRIPTION AND SHAREHOLDER AGREEMENT DATED AS OF DECEMBER 3, 1993, AMONG THE PURCHASERS PARTY THERETO AND THE COMPANY, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY, AND THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE VOTED, TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS SUCH VOTING, TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION COMPLIES WITH THE PROVISIONS OF SUCH AGREEMENT. THE CERTIFICATE OF INCORPORATION OF THE COMPANY CONTAINS PROVISIONS REQUIRING THE AFFIRMATIVE VOTE OF ALL OF THE SHAREHOLDERS ELIGIBLE TO VOTE AND/OR ALL OF THE MEMBERS OF THE BOARD OF DIRECTORS OF THE COMPANY TO TRANSACT CERTAIN SPECIFICALLY ENUMERATED ITEMS OF BUSINESS. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY ALL OF THE PROVISIONS OF SUCH AGREEMENT. 7.2 Registration of Transfers. Issuer need not register a transfer of any Shares unless the conditions specified in the foregoing legend are satisfied. Issuer may also instruct its transfer agent not to register the transfer of any Shares unless the conditions specified in the foregoing legend are satisfied. 7.3 Removal of Legends and Transfer Restrictions. The legend relating to the Act endorsed on a stock certificate pursuant to Section 7.1 of this Agreement and the stop transfer instructions with respect to the Shares represented by such certificate shall be removed and Issuer shall issue a certificate without such legend to the holder of such Shares if (a) such Shares are registered under the Act and a prospectus meeting the requirements of Section 10 of the Act is available, (b) such holder provides to Issuer (i) an opinion of counsel for such holder of such Shares reasonably satisfactory to Issuer, or (ii) a no-action letter or interpretive opinion of the staff of the Securities and Exchange Commission to the effect that a public sale, transfer or assignment of such Shares may be made without registration and without compliance with any restriction such as Rule 144, or (c) the above requirements are waived by Issuer. 8. Agreement to Vote; No Petition. (a) Each of the Purchasers hereby agrees and covenants to vote all of the shares of Common Stock now or hereafter owned by it, whether beneficially or otherwise, as is necessary at a meeting of stockholders of Issuer, or by written consent in lieu of any such meeting, to cause to be elected to, and maintained on, Issuer's board of directors at all times one individual (the "Independent Director") who is not direct, indirect or beneficial stockholders, officers, directors, employees, affiliates, associates, customers or suppliers of any Amphenol Person (as such Purchase and Sale Agreement E - 5 term is defined in the Receivables Purchase Agreement) or any affiliate of any such Amphenol Person. Each of the Purchasers hereby further agrees and covenants that in the event the Independent Director resigns or otherwise ceases to be a director of Issuer, such Purchaser will vote all of the shares of Common Stock then owned by it, whether beneficially or otherwise, as is necessary at a meeting of stockholders of Issuer, or by written consent in lieu of any such meeting, to select and cause to be elected a replacement Independent Director who (i) meets all of the qualifications of an Independent Director as set forth in the preceding sentence, (ii) does not have any other type of professional relationship with any Amphenol Person or any affiliate of any such Amphenol Person, and (iii) is a tenured professor at a business or law school, a retired judge or an established independent member of the business community, having a sound reputation and experience relative to the duties to be performed by such individual as an Independent Director. (b) Each of the Purchasers (for itself and its successors and assigns) hereby acknowledges and agrees that any decision to approve or otherwise cause the commencement of a voluntary case or other proceeding with respect to the Issuer under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law, or the appointment of or taking possession by, a receiver, liquidator, assignee, trustee, custodian, or other similar official for the Issuer shall be approved in writing by the Independent Director prior to the making thereof, and the Independent Director shall owe a fiduciary duty to the Issuer (and creditors) and not to the stockholders of Issuer in respect of any such decision. (c) Each of the Purchasers (for itself and its successors and assigns) hereby agrees that it will not institute against Issuer, or join any other Person in instituting against Issuer, any insolvency proceeding (namely, any proceeds of the type referred to in the definition of "Event of Bankruptcy" as defined in the Receivables Purchase Agreement) so long as any Commercial Paper Notes issued by Par Capital shall be outstanding or there shall not have elapsed one year plus one day since the last day on which any such Commercial Paper Notes shall have been outstanding. (d) The obligations provided by this Section 8 shall terminate on the date one year and one day after the payment in full of all Obligations undertaken by Issuer under the Transaction Documents, but in any event ten years from the date hereof. 9. General Restrictions on Transfer and Issuance. (a) No Shares or any interest therein shall be validly sold, assigned, pledged, encumbered, awarded, confirmed, or otherwise transferred, for consideration or otherwise, whether voluntarily, involuntarily, or by operation of law, and no purported transferee shall be recognized as a shareholder of Issuer for any purpose whatsoever unless and until each of the following conditions is satisfied: (a) the holders of all of the other Shares have filed with the secretary of Issuer their written consents to such transfer; (b) except as provided in the following sentence or in Section 9(b), the transferee is not a direct, indirect or beneficial shareholder, officer, director, employee, affiliate, associate, customer or supplier of any of Purchasers or their affiliates; and (c) the transferee has signed an agreement agreeing to be bound by the terms contained in Sections 8 and 9 herein as if such transferee was a Purchaser hereunder. Notwithstanding anything Purchase and Sale Agreement E - 6 to the contrary contained in clause (b) of the preceding sentence, a Purchaser may sell, assign, pledge, encumber, award, confirm or otherwise transfer Shares or an interest therein to another Originator (as such term is defined in the Receivables Purchase Agreement) if each of the following conditions is satisfied: (x) there has been a termination of purchases of Receivables of such Purchaser pursuant to, or such Purchaser is otherwise no longer a party to, the Purchase and Sale Agreement, (y) such transfer is made for fair value, and (z) the conditions set forth in clauses (a) and (c) of the preceding sentence have been satisfied. No additional shares of capital stock shall be issued by Issuer except to a Purchaser, and then only if each of the conditions specified in clauses (a), (b), and (c) of the preceding sentence have been satisfied. A transfer or attempt to transfer subject to the provisions of this Agreement shall be deemed to occur whenever any interest in Common Stock is transferred or is attempted to be transferred, voluntarily, involuntarily, or by operation of law, irrespective of whether any change in the record ownership of any shares of Common Stock occurs. (b) Concurrently with the issuance of the Shares to the Purchasers the Purchasers are pledging and delivering the Shares to Banker's Trust Company, as collateral agent (the "Collateral Agent") under that certain Amended and Restated Credit Agreement, dated as of October 31, 1991, and amended and restated as of December 8, 1992 and as further amended from time to time (the "Credit Agreement"). The Issuer, Par Capital, each Purchaser and Agent acknowledge and consent to such pledge; it being understood that the Collateral Agent is accepting the pledge and delivery of the Shares subject to the provisions of this Agreement. 10. Successors and Assigns. Each party agrees that it will not assign, sell, transfer, delegate, or otherwise dispose of, whether voluntarily or involuntarily, or by operation of law, any right or obligation under this Agreement except in connection with a transfer of Shares in compliance with the terms and conditions hereof or otherwise in accordance with the terms hereof. Any purported assignment, transfer, or delegation in violation of this Section shall be null and void ab initio. Subject to the foregoing limits on assignment and delegation and except as otherwise provided herein, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, legatees, executors, administrators, assignees and legal successors. Any transferee of any shares of Common Stock or any interest hereunder shall take its interest subject to the terms and conditions hereof and shall, upon request of any party hereto, execute a counterpart of this Agreement. 11. Amendments and Waivers. Any term hereof may be amended and the observance of any term hereof may be waived (either generally or in a particular instance and either retroactively or prospectively) only with the written consent of Issuer and all Purchasers. Any amendment or waiver so effected shall be binding upon Issuer and Purchasers. 12. Further Acts. Each party agrees to perform any further acts and execute and deliver any document which may be reasonably necessary to carry out the provisions of this Agreement. 13. Counterparts. This Agreement may be executed in any number of counterparts, all of such counterparts together to be deemed one instrument. Purchase and Sale Agreement E - 7 14. Notices. Any and all notices, acceptances, statements and other communications provided for herein shall be in writing, delivered personally, by telefacsimile or certified mail, return receipt requested, and shall be addressed, if to a corporate party, to its principal office; if to an individual, to the address provided to Issuer at the time of his or her initial purchase unless changed by written notice to Issuer or its successor. 15. Governing Law. This Agreement shall be construed in accordance with and be governed by the internal laws of the State of New York. 16. Entire Agreement. This Agreement and the other documents delivered pursuant hereto constitute the full and entire understanding and agreement between the parties with regard to the subject matter hereof and thereof. 17. Severability of this Agreement. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Purchase and Sale Agreement E - 8 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above. THE ISSUER: AMPHENOL FUNDING CORP., a Delaware corporation By: ---------------------------- Name: ------------------------- Title: ------------------------ THE PURCHASERS: AMPHENOL CORPORATION, a Delaware corporation By: ---------------------------- Name: ------------------------- Title: ------------------------ AMPHENOL INTERCONNECT PRODUCTS CORPORATION, a Delaware corporation By: ---------------------------- Name: ------------------------- Title: ------------------------ PYLE NATIONAL INC., a Delaware corporation By: ---------------------------- Name: ------------------------- Title: ------------------------ TIMES FIBER COMMUNICATIONS INC., a Delaware corporation By: ---------------------------- Purchase and Sale Agreement E - 9 Name: ------------------------- Title: ------------------------ Purchase and Sale Agreement E - 10 SCHEDULE 1 to Subscription and Shareholder Agreement Subscription for Capital Stock Purchase Number & Type of Shares Price ----------------------- -------- Aggregate of 100 shares of Common Stock, each Purchaser subscribing for the following number of shares: 1. Amphenol 50 shares of common stock $ 2,000,000.00 2. Amphenol Interconnect 6 shares of common stock 240,000.00 3. Pyle National 4 shares of common stock 160,000.00 4. Times Fiber 40 shares of common stock 1,600,000.00 * Value of Receivables transferred. Purchase and Sale Agreement E - 11 EXHIBIT A to Subscription and Shareholder Agreement CERTIFICATE OF INCORPORATION Purchase and Sale Agreement E - 12 EXHIBIT B to Subscription and Shareholder Agreement BY-LAWS Purchase and Sale Agreement E - 13 Exhibit F to Purchase and Sale Agreement PROCEEDINGS NONE Purchase and Sale Agreement F - 1 Exhibit G to Purchase and Sale Agreement OFFICE LOCATIONS 358 Hall Avenue Wallingford, CT 06492-7530 20 Valley Street Endicott, NY 13760 40-60 Delaware Street Sidney, NY 13838-1395 1925A Ohio Street Lisle, IL 60532 1334 N. Kostner Avenue Chicago, IL 60651 One Kennedy Avenue Danbury, CT 06810 720 Sherman Avenue Hamden, CT 06514 Route 2, Chatham Industrial Park Chatham, VA 24531 25325 Joy Boulevard Mt. Clemens, MI 48046-2336 Purchase and Sale Agreement G - 1 Exhibit H to Purchase and Sale Agreement TRADE NAMES AND CORPORATE REORGANIZATIONS Legal Entity Trade Names - ------------ ----------- Amphenol Corporation Amphenol Corporation Amphenol RF Amphenol Products Bendix Connector Operations Spectra-Strip Amphenol Amphenol Aerospace Operations Amphenol Communication & Network Products AAO Amphenol FOP Amphenol Fiber Optic Products Amphenol Interconnect Products Amphenol Interconnect Products Corporation Corporation Amphenol Products Amphenol Amphenol Endicott Endicott AIPC Pyle-National, Inc. Pyle-National, Inc. Pyle Times Fiber Communications, Times Fiber Communications, Inc. Inc. Times Fiber Communications Times Times Fiber TFC The Sine Companies, Inc. The Sine Companies, Inc. Sine Connector Corporation Sine Aaxico Tri-Mate Sine Products Company Purchase and Sale Agreement H-1 Sine Electro-Mold, Inc. Mil-Specialists, Inc. From and after December 3, 1988, none of Amphenol Funding Corporation, Amphenol Corporation, Amphenol Interconnect Products Corporation, Pyle-National, Inc. and Times Fiber Communications, Inc. has been the subject of any merger or other corporate reorganization. From and after December 31, 1992, the Sine Companies, Inc. has not been the subject of any merger or other corporate reorganization except as follows: Amphenol Corporation has entered into an Agreement and Plan of Merger, dated as of January 23, 1997, with NXS Acquisition Corp. ("NXS"), a wholly-owned subsidiary of KKR 1996 Fund L.P., pursuant to which approximately 90% of the outstanding shares of Amphenol Corporation's Class A common stock will be purchased by NXS for $26.00 per share in cash and approximately 10% of such outstanding shares will be retained by other stockholders. Purchase and Sale Agreement H-2 EX-10.3 7 CREDIT AGREEMENT Exhibit 10.3 EXECUTION ================================================================================ CREDIT AGREEMENT DATED AS OF MAY 19, 1997 AMONG AMPHENOL CORPORATION, as Borrower, AMPHENOL HOLDING UK, LIMITED and AMPHENOL COMMERCIAL & INDUSTRIAL UK, LIMITED as U.K. Borrowers, THE LENDERS LISTED HEREIN, as Lenders, THE CHASE MANHATTAN BANK, as Syndication Agent, THE BANK OF NEW YORK, as Documentation Agent, and BANKERS TRUST COMPANY, as Administrative Agent and Collateral Agent. ================================================================================ AMPHENOL CORPORATION CREDIT AGREEMENT TABLE OF CONTENTS Page SECTION 1. DEFINITIONS............................. 2 1.1 Certain Defined Terms.............................................. 2 1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations Under Agreement.................................................... 43 1.3 Other Definitional Provisions and Rules of Construction............ 43 SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS.............. 44 2.1 Commitments; Making of Loans; the Register; Notes.................. 44 2.2 Interest on the Loans.............................................. 52 2.3 Fees............................................................... 57 2.4 Repayments, Prepayments and Reductions in Revolving Loan Commitments; General Provisions Regarding Payments; Application of Proceeds of Collateral and Payments Under the Guaranties........ 58 2.5 Use of Proceeds.................................................... 67 2.6 Special Provisions Governing LIBOR Loans........................... 67 2.7 Increased Costs; Capital Adequacy.................................. 70 2.8 Notice of Certain Costs; Obligation of Lenders and Issuing Lenders to Mitigate................................................ 75 2.9 Defaulting Lenders................................................. 76 2.10 Removal or Replacement of a Lender................................. 78 SECTION 3. LETTERS OF CREDIT.......................... 79 3.1 Issuance of Letters of Credit and Lenders' Purchase of Participations Therein............................................. 79 3.2 Letter of Credit Fees.............................................. 83 3.3 Drawings and Reimbursement of Amounts Paid Under Letters of Credit. 84 3.4 Obligations Absolute............................................... 87 3.5 Indemnification; Nature of Issuing Lenders' Duties................. 88 3.6 Increased Costs and Taxes Relating to Letters of Credit............ 89 (i) Page ---- SECTION 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT.............. 90 4.1 Conditions to Initial Loans........................................ 90 4.2 Conditions to All Loans............................................ 95 4.3 Conditions to Letters of Credit.................................... 96 SECTION 5. COMPANY'S REPRESENTATIONS AND WARRANTIES............... 96 5.1 Organization, Powers, Qualification, Good Standing, Business and Subsidiaries................................................... 97 5.2 Authorization of Borrowing, etc.................................... 97 5.3 Financial Condition................................................ 98 5.4 No Material Adverse Effect......................................... 98 5.5 Title to Properties; Liens......................................... 98 5.6 Litigation; Adverse Facts.......................................... 99 5.7 Payment of Taxes................................................... 99 5.8 Governmental Regulation............................................ 99 5.9 Employee Benefit Plans.............................................100 5.10 Environmental Protection...........................................100 5.11 Disclosure.........................................................101 SECTION 6. AFFIRMATIVE COVENANTS........................101 6.1 Financial Statements and Other Reports.............................102 6.2 Corporate Existence, etc...........................................106 6.3 Payment of Taxes and Claims; Tax Consolidation.....................106 6.4 Maintenance of Properties; Insurance...............................106 6.5 Inspection Rights..................................................107 6.6 Compliance with Laws, etc..........................................107 6.7 Execution of Subsidiary Guaranty by Future Domestic Subsidiaries; Pledge of Stock of Future Direct Subsidiaries; Ratable Credit Support; Certain Closing Date Transactions; Certain Post-Closing Actions....107 6.8 Transactions with Affiliates.......................................109 6.9 Conduct of Business................................................109 6.10 Fiscal Year........................................................109 (ii) Page ---- SECTION 7. NEGATIVE COVENANTS..........................110 7.1 Indebtedness.......................................................110 7.2 Liens and Related Matters..........................................112 7.3 Investments; Joint Ventures........................................113 7.4 Guarantee Obligations..............................................114 7.5 Restricted Junior Payments.........................................115 7.6 Financial Covenants................................................116 7.7 Restriction on Certain Fundamental Changes; Asset Sales and Acquisitions...................................................118 7.8 Consolidated Capital Expenditures..................................120 7.9 Amendments of Documents Relating to Subordinated Indebtedness......120 SECTION 8. EVENTS OF DEFAULT..........................120 8.1 Failure to Make Payments When Due..................................120 8.2 Default in Other Agreements........................................121 8.3 Breach of Certain Covenants........................................121 8.4 Breach of Warranty.................................................121 8.5 Other Defaults Under Loan Documents................................121 8.6 Involuntary Bankruptcy; Appointment of Receiver, etc...............122 8.7 Voluntary Bankruptcy; Appointment of Receiver, etc.................122 8.8 Judgments and Attachments..........................................122 8.9 ERISA..............................................................123 8.10 Change of Control..................................................123 8.11 Material Invalidity of Guaranties; Material Failure of Security; Repudiation of Obligations.........................................123 SECTION 9. AGENTS................................125 9.1 Appointment........................................................125 9.2 Powers and Duties; General Immunity................................125 9.3 Representations and Warranties; No Responsibility For Appraisal of Creditworthiness......................................127 9.4 Right to Indemnity.................................................127 9.5 Successor Agents and Swing Line Lender.............................127 9.6 Collateral Documents and Guaranties................................128 (iii) Page ---- SECTION 10. MISCELLANEOUS............................129 10.1 Assignments and Participations in Loans and Letters of Credit......129 10.2 Expenses...........................................................133 10.3 Indemnity..........................................................134 10.4 Set-Off............................................................135 10.5 Ratable Sharing....................................................135 10.6 Amendments and Waivers.............................................136 10.7 Notices............................................................137 10.8 Survival of Representations, Warranties and Agreements.............137 10.9 Failure or Indulgence Not Waiver; Remedies Cumulative..............138 10.10 Marshalling; Payments Set Aside....................................138 10.11 Severability.......................................................138 10.12 Obligations Several; Independent Nature of Lenders' Rights.........139 10.13 Headings...........................................................139 10.14 Applicable Law.....................................................139 10.15 Successors and Assigns.............................................139 10.16 Consent to Jurisdiction and Service of Process.....................139 10.17 Waiver of Jury Trial...............................................140 10.18 Confidentiality....................................................141 10.19 Counterparts; Effectiveness........................................141 10.20 Judgment Currency..................................................142 10.21 European Monetary Union............................................142 Signature pages..........................................................S-1 (iv) EXHIBITS I FORM OF NOTICE OF BORROWING II FORM OF NOTICE OF CONVERSION/CONTINUATION III FORM OF NOTICE OF REQUEST FOR ISSUANCE OF LETTER OF CREDIT IV-A FORM OF TRANCHE A TERM NOTE (DOLLAR LOANS) IV-B FORM OF TRANCHE A TERM NOTE (STERLING LOANS) V FORM OF TRANCHE B TERM NOTE VI FORM OF TRANCHE C TERM NOTE VII FORM OF REVOLVING NOTE VIII FORM OF SWING LINE NOTE IX FORM OF COMPLIANCE CERTIFICATE X FORM OF OPINIONS OF COUNSEL TO THE LOAN PARTIES XI FORM OF OPINION OF O'MELVENY & MYERS XII FORM OF ASSIGNMENT AGREEMENT XIII FORM OF CERTIFICATE RE NON-BANK STATUS XIV FORM OF FINANCIAL CONDITION CERTIFICATE XV FORM OF MASTER PLEDGE AGREEMENT XVI FORM OF SUBSIDIARY GUARANTY XVII FORM OF COMPANY GUARANTY XVIII FORM OF INTERCREDITOR AGREEMENT (v) SCHEDULES 1.1 MANDATORY LIQUID ASSET COSTS FOR STERLING LOANS 2.1 LENDERS' COMMITMENTS, LENDING OFFICES AND PRO RATA SHARES 4.1C MANAGEMENT INVESTORS 5.1 SUBSIDIARIES OF COMPANY 5.6 LITIGATION 7.1 CERTAIN EXISTING INDEBTEDNESS 7.3 CERTAIN EXISTING INVESTMENTS 7.4 CERTAIN EXISTING GUARANTEE OBLIGATIONS (vi) CREDIT AGREEMENT This CREDIT AGREEMENT is dated as of May 19, 1997 and entered into by and among AMPHENOL CORPORATION, a Delaware corporation ("Company"), AMPHENOL HOLDING UK, LIMITED, a limited liability company incorporated under the laws of England and Wales ("UK Holding"), AMPHENOL COMMERCIAL & INDUSTRIAL UK, LIMITED, a limited liability company incorporated under the laws of England and Wales ("ACI"), THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF (each individually referred to herein as a "Lender" and collectively as "Lenders"), THE CHASE MANHATTAN BANK ("Chase"), as syndication agent (in such capacity, "Syndication Agent"), THE BANK OF NEW YORK ("BNY"), as documentation agent (in such capacity, "Documentation Agent"), and BANKERS TRUST COMPANY ("BTCo"), as administrative agent for Lenders (in such capacity, "Administrative Agent") and as the initial collateral agent for Lenders. R E C I T A L S WHEREAS, Newco (this and other capitalized terms used in these recitals without definition being used as defined in subsection 1.1) has been formed by Affiliates of KKR for the purpose of acquiring, in the aggregate, not less than 75% of the PostMerger Shares; WHEREAS, on or before the Closing Date, Affiliates of KKR will make a cash investment in Newco of not less than $341,000,000 (the "Newco Equity Amount") in consideration for all of the outstanding common stock of Newco; WHEREAS, on or before the Closing Date, (i) Management Investors may (a) elect to retain all or a portion of the Pre-Merger Shares held by Management Investors in accordance with the terms of the Merger Agreement and the Management Subscription Agreements and (b) purchase additional Post-Merger Shares pursuant to the terms of the Management Subscription Agreements in an aggregate amount such that, when added to the Post-Merger Shares retained by Management Investors after consummation of the Merger as a result of the election described in the foregoing clause (a), Management Investors will have an aggregate investment in Post-Merger Shares equal in value to approximately $6,500,000, and (ii) Company will issue and sell not less than $240,000,000 in aggregate principal amount of New Sub Debt; WHEREAS, (i) on the Closing Date, Newco will be merged with and into Company pursuant to the Merger Agreement, with Company being the surviving corporation in the Merger and with Individual Seller and Existing Public Stockholders receiving cash consideration and retaining Post-Merger Shares in the respective amounts 1 and ratable proportions determined in accordance with the provisions of the Merger Agreement, and (ii) within 35 days after the Closing Date, an Affiliate of KKR may purchase any Post-Merger Shares retained by Individual Seller pursuant to the terms of the Stockholders Agreement; WHEREAS, Lenders have agreed to extend certain credit facilities to Company, the proceeds of which will be used (i) together with the proceeds of the issuance and sale of the New Sub Debt and the proceeds of the Newco Equity Amount, to fund that portion of the Recapitalization Financing Requirements required to be funded on the Closing Date, (ii) within 35 days after the Closing Date, to fund the repurchase of the Existing Senior Notes, and (iii) to provide financing for working capital and other general corporate purposes of Company and its Subsidiaries; WHEREAS, Lenders have agreed to extend certain credit facilities to U.K. Borrowers, the proceeds of which will be used to provide financing for general corporate purposes of each such Borrower; WHEREAS, Company desires to secure all of the Obligations hereunder and under the other Loan Documents by granting to Collateral Agent, on behalf of Lenders, a first priority pledge of (i) 100% of the capital stock of each of its direct Domestic Subsidiaries and (ii) 65% of the capital stock of each of its direct Material Foreign Subsidiaries; and WHEREAS, Company has agreed to guarantee the Obligations of U.K. Borrowers hereunder and under the other Loan Documents, and Subsidiary Guarantors have agreed to guarantee the Obligations of the Loan Parties hereunder and under the other Loan Documents; NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, Borrowers, Lenders, Syndication Agent, Documentation Agent, Administrative Agent and Collateral Agent agree as follows: Section 1. DEFINITIONS 1.1 Certain Defined Terms. The following terms used in this Agreement shall have the following meanings: "Accounts Receivable Facility" means the Existing A/R Facility and any successor, replacement or additional accounts receivable financing program entered into by Company and/or any of its Subsidiaries on terms customary for accounts receivable 2 financings; provided, in each case, that there is no recourse thereunder against Company or any of its Subsidiaries for any default by any account obligor in the payment of its obligations in connection with the accounts receivable subject to such program, except to the extent that such recourse is limited substantially to the same extent as under the Existing A/R Facility as in effect on the Closing Date; and provided, further, that any accounts receivable financing program shall cease to constitute an "Accounts Receivable Facility" in the event the attributes described in the foregoing proviso cease to exist with regard to such program. "ACI" has the meaning assigned to that term in the introduction to this Agreement. "Acquisition" means the acquisition by Company or any of its Subsidiaries (by purchase or otherwise) of all or substantially all of the business, property or fixed assets of, or the stock or other evidence of beneficial ownership of, any Person or any division, business unit or line of business of any Person. "Administrative Agent" has the meaning assigned to that term in the introduction to this Agreement and also means and includes any successor Administrative Agent appointed pursuant to subsection 9.5A. "Affected Lender" has the meaning assigned to that term in subsection 2.6C. "Affiliate", as applied to any Person, means any other Person directly or indirectly controlling, controlled by, or under common control with, that Person. For the purposes of this definition, "control" (including, with correlative meanings, the terms "controlling", "controlled by" and "under common control with"), as applied to any Person, means the possession, directly or indirectly, of the power to (i) vote 10% or more of the Voting Stock of such Person or (ii) direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise. "Agents" shall mean Administrative Agent and Collateral Agent. "Agreement" means this Credit Agreement dated as of May 19, 1997, as it may be amended, supplemented or otherwise modified from time to time. "Amphenol Borg" means Amphenol Borg Limited, a company incorporated under the laws of England and Wales. "Applicable Commitment Fee Percentage" means, as at any date of determination, a rate per annum equal to the percentage set forth below opposite the Applicable Leverage Ratio in effect as of such date of determination, any change in the 3 Applicable Commitment Fee Percentage to be effective on the date of any corresponding change in the Applicable Leverage Ratio: Applicable Leverage Ratio Applicable Commitment Fee Percentage ------------------------- ------------------------------------ 6.25:1.00 or greater 0.50% 5.50:1.00 or greater, but less than 6.25:1.00 0.425% 4.50:1.00 or greater, but less than 5.50:1.00 0.375% 4.00:1.00 or greater, but less than 4.50:1.00 0.300% less than 4.00:1.00 0.25% "Applicable Currency" means, as to any particular payment or Loan, the currency (being Dollars or Sterling) in which it is denominated or is payable. "Applicable Leverage Ratio" means, with respect to any date of determination, the Consolidated Leverage Ratio set forth in the Pricing Certificate (as defined below) in effect for the Pricing Period (as defined below) in which such date of determination occurs. For purposes of this definition, (i) "Pricing Certificate" means an Officer's Certificate of Company certifying as to the Consolidated Leverage Ratio as of the last day of any Fiscal Quarter and setting forth the calculation of such Consolidated Leverage Ratio in reasonable detail, which Officer's Certificate may be delivered to Administrative Agent at any time on or after the date of delivery by Company of the Compliance Certificate (the "Related Compliance Certificate") with respect to the period ending on the last day of such Fiscal Quarter pursuant to subsection 6.1(iii), and (ii) "Pricing Period" means each period commencing on the first Business Day after the delivery to Administrative Agent of a Pricing Certificate and ending on the first Business Day after the next Pricing Certificate is delivered to Administrative Agent; provided that, anything contained in this definition to the contrary notwithstanding, (a) the first Pricing Period shall commence no earlier than the date which is six months after the Closing Date, and the Pricing Certificate in respect of the first Pricing Period may be delivered at any time on or after such date and shall relate to the most recent financial statements delivered by Company to Administrative Agent pursuant to subsection 6.1(i), (b) the Applicable Leverage Ratio for the period from the Closing Date to but excluding the date of commencement of the first Pricing Period shall be deemed to be 6.25:1.00, and (c) in the event that, after the commencement of the first Pricing Period, (X) Company fails to deliver a Pricing Certificate to Administrative Agent setting forth the Consolidated Leverage Ratio as of the last day of any Fiscal Quarter on or before the last day (the 4 "Cutoff Date") on which Company is required to deliver the Related Compliance Certificate and (Y) Administrative Agent determines (each such determination being an "Agent Determination") on or after the Cutoff Date (on the basis of the Related Compliance Certificate or a Pricing Certificate delivered after the Cutoff Date) that the Applicable Leverage Ratio that would have been in effect if Company had delivered a Pricing Certificate on the Cutoff Date is greater than the Consolidated Leverage Ratio set forth in the most recent Pricing Certificate actually delivered by Company, then (1) the Applicable Leverage Ratio in effect for the period from the Cutoff Date to the date of delivery by Company of the next Pricing Certificate (or, if earlier, the next date on which an Agent Determination is made) shall be the Consolidated Leverage Ratio determined pursuant to the Agent Determination and (2) on the first Business Day after Administrative Agent delivers written notice to Company of any Agent Determination, the applicable Borrower shall pay to Administrative Agent, for distribution (as appropriate) to Lenders, an aggregate amount equal to the additional interest, letter of credit fees and commitment fees such Borrower would have been required to pay in respect of all Loans, Letters of Credit or Commitments in respect of which any interest or fees have been paid by such Borrower during the period from the Cutoff Date to the date such notice is given by Administrative Agent to Company if the amount of such interest and fees had been calculated using the Applicable Leverage Ratio based on such Agent Determination. "Applicable Tranche A Base Rate Margin" means, as at any date of determination, a rate per annum equal to the percentage set forth below opposite the Applicable Leverage Ratio in effect as of such date of determination, any change in any such Applicable Tranche A Base Rate Margin to be effective on the date of any corresponding change in the Applicable Leverage Ratio: Applicable Leverage Ratio Applicable Tranche A Base Rate Margin ------------------------- ------------------------------------- 5.50:1.00 or greater 1.00% 5.00:1.00 or greater, but less than 5.50:1.00 0.75% 4.50:1.00 or greater, but less than 5.00:1.00 0.375% 4.00:1.00 or greater, but less than 4.50:1.00 0.125% less than 4.00:1.00 0.00% "Applicable Tranche A LIBOR Margin" means, as at any date of determination, a rate per annum equal to the percentage set forth below opposite the Applicable Leverage Ratio in effect as of such date of determination, any change in any 5 such Applicable Tranche A LIBOR Margin to be effective on the date of any corresponding change in the Applicable Leverage Ratio: Applicable Leverage Ratio Applicable Tranche A LIBOR Margin ------------------------- --------------------------------- 5.50:1.00 or greater 2.25% 5.00:1.00 or greater, but less than 5.50:1.00 2.00% 4.50:1.00 or greater, but less than 5.00:1.00 1.625% 4.00:1.00 or greater, but less than 4.50:1.00 1.375% 3.50:1.00 or greater, but less than 4.00:1.00 1.125% less than 3.50:1.00 1.00% "Applicable Tranche B Base Rate Margin" means, as at any date of determination, a rate per annum equal to the percentage set forth below opposite the Applicable Leverage Ratio in effect as of such date of determination, any change in any such Applicable Tranche B Base Rate Margin to be effective on the date of any corresponding change in the Applicable Leverage Ratio: Applicable Leverage Ratio Applicable Tranche B Base Rate Margin ------------------------- ------------------------------------- 5.00:1.00 or greater 1.50% 4.00:1.00 or greater, but less than 5.00:1.00 1.25% less than 4.00:1.00 1.00% "Applicable Tranche B LIBOR Margin" means, as at any date of determination, a rate per annum equal to the percentage set forth below opposite the Applicable Leverage Ratio in effect as of such date of determination, any change in any such Applicable Tranche B LIBOR Margin to be effective on the date of any corresponding change in the Applicable Leverage Ratio: 6 Applicable Leverage Ratio Applicable Tranche B LIBOR Margin ------------------------- --------------------------------- 5.00:1.00 or greater 2.75% 4.00:1.00 or greater, but less than 5.00:1.00 2.50% less than 4.00:1.00 2.25% "Applicable Tranche C Base Rate Margin" means, as at any date of determination, a rate per annum equal to the percentage set forth below opposite the Applicable Leverage Ratio in effect as of such date of determination, any change in any such Applicable Tranche C Base Rate Margin to be effective on the date of any corresponding change in the Applicable Leverage Ratio: Applicable Leverage Ratio Applicable Tranche C Base Rate Margin ------------------------- ------------------------------------- 5.00:1.00 or greater 2.00% 4.00:1.00 or greater, but less than 5.00:1.00 1.75% less than 4.00:1.00 1.50% "Applicable Tranche C LIBOR Margin" means, as at any date of determination, a rate per annum equal to the percentage set forth below opposite the Applicable Leverage Ratio in effect as of such date of determination, any change in any such Applicable Tranche C LIBOR Margin to be effective on the date of any corresponding change in the Applicable Leverage Ratio: Applicable Leverage Ratio Applicable Tranche C LIBOR Margin ------------------------- --------------------------------- 5.00:1.00 or greater 3.25% 4.00:1.00 or greater, but less than 5.00:1.00 3.00% less than 4.00:1.00 2.75% "Asset Sale" means the sale by Company or any of its Subsidiaries to any Third Party of (i) any of the stock or other ownership interests of any of Company's Subsidiaries, (ii) substantially all of the assets of any division or line of business of Company or any of its Subsidiaries, or (iii) any other assets (whether tangible or intangible) of Company or any of its Subsidiaries outside of the ordinary course of busi- 7 ness (other than (a) accounts receivable sold pursuant to any Accounts Receivable Facility or sold in accordance with subsection 7.7(iii) and (b) any other such assets to the extent that the aggregate value of such assets sold in any single transaction or related series of transactions is equal to $500,000 or less). "Assignment Agreement" means an Assignment Agreement in substantially the form of Exhibit XII annexed hereto. "Available Amount" means, as of any date of determination, an amount equal to (i) the aggregate amount of net cash proceeds received by Company after the Closing Date in respect of any equity contributions made to Company by, or any issuances of equity Securities by Company to, any Third Party other than an Unrestricted Subsidiary (other than proceeds from purchases of capital stock of Company to the extent such purchases are financed with the proceeds of Investments permitted under subsection 7.3(ii)) plus (ii) the aggregate amount of Retained Excess Cash Flow (as defined in subsection 2.4B(iii)(b)) as of such date plus (iii) the aggregate amount of Retained Prepayments (as defined in subsection 2.4B(iv)(c)) as of such date minus (iv) any proceeds received by Company from the issuance of new shares of its common stock to the extent such proceeds are used as provided in subsection 7.5(iii)(d). "Available Amount Usage" means, as of any date of determination, an amount equal to the sum of (i) the aggregate amount of Investments made pursuant to subsection 7.3(vi)(b) as of such date plus (ii) the aggregate amount of Restricted Junior Payments made pursuant to subsection 7.5(iii)(c) on or prior to such date (other than any such Restricted Junior Payments made pursuant to a Refinancing (as defined in the definition of "Refinancing Sub Debt")) plus (iii) the aggregate amount of any Refinancing Premiums (as defined in the definition of "Refinancing Sub Debt") paid by Company on or prior to such date. "Bankruptcy Code" means Title 11 of the United States Code entitled "Bankruptcy", as now and hereafter in effect, or any successor statute. "Base Rate" means, at any time, the higher of (x) the Prime Rate or (y) the rate which is 1/2 of 1% in excess of the Federal Funds Effective Rate. "Base Rate Loans" means Loans bearing interest at rates determined by reference to the Base Rate as provided in subsection 2.2A. "Borrower" means Company or either U.K. Borrower, as the context requires. "BTCo" has the meaning assigned to that term in the introduction to this Agreement. 8 "Business Day" means, for all purposes other than as covered by clause (ii) below, (i) any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in such state are authorized or required by law or other governmental action to close and, (ii) with respect to all notices, determinations, fundings and payments in connection with LIBOR or any LIBOR Loans, any day that is a Business Day described in clause (i) above and that is also (a) a day for trading by and between banks in Dollar or Sterling deposits, as the case may be, in the London interbank market and (b) a day on which banking institutions are open for business in London. "Capital Lease", as applied to any Person, means any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is accounted for as a capital lease on the balance sheet of that Person. "Cash" means money, currency or a credit balance in a Deposit Account. "Cash Equivalents" means (i) marketable securities (a) issued or directly and unconditionally guaranteed as to interest and principal by the United States Government or (b) issued by any agency of the United States the obligations of which are backed by the full faith and credit of the United States, in each case maturing within 24 months after the date of acquisition thereof; (ii) 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 maturing within 24 months after the date of acquisition thereof and having, at the time of the acquisition thereof, an investment grade rating generally obtainable from either Standard & Poor's Ratings Group ("S&P") or Moody's Investors Service, Inc. ("Moody's"); (iii) commercial paper maturing no more than 12 months from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A-2 from S&P or at least P-2 from Moody's; (iv) domestic and Eurodollar certificates of deposit or bankers' acceptances maturing within 24 months after the date of acquisition thereof and issued or accepted by any Lender or by any other commercial bank that has combined capital and surplus of not less than $250,000,000; (v) repurchase agreements with a term of not more than 30 days for underlying securities of the types described in clauses (i), (ii) and (iv) above entered into with any commercial bank meeting the requirements specified in clause (iv) above or with any securities dealer of recognized national standing, (vi) shares of investment companies that are registered under the Investment Company Act of 1940 and that invest solely in one or more of the types of investments referred to in clauses (i) through (v) above, and (vii) 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 a manner consistent with past practices. "Certificate re Non-Bank Status" means a certificate substantially in the form of Exhibit XIII annexed hereto delivered by a Lender to Administrative Agent pursuant to subsection 2.7B(iii). 9 "Change of Control" means, and shall be deemed to have occurred, if: (i)(a) KKR, its Affiliates and the Management Group shall at any time not own, in the aggregate, directly or indirectly, beneficially and of record, at least 35% of the outstanding Voting Stock of Company (other than as the result of one or more widely distributed offerings of common stock of Company, in each case whether by Company or by KKR, its Affiliates or the Management Group) and/or (b) any person, entity or "group" (within the meaning of Section 13(d) or 14(d) of the Exchange Act) shall at any time have acquired direct or indirect beneficial ownership of a percentage of the outstanding Voting Stock of Company that exceeds the percentage of such Voting Stock then beneficially owned, in the aggregate, by KKR, its Affiliates and the Management Group, unless, in the case of either clause (a) or (b) above, KKR, its Affiliates and the Management Group shall, at the relevant time, have the collective right or ability, either by contract or pursuant to a written proxy or other written evidence of voting power, to elect or designate for election a majority of the Board of Directors of Company; and/or (ii) at any time Continuing Directors shall not constitute a majority of the Board of Directors of Company. For purposes of this definition, "Continuing Director" means, as of any date of determination, an individual (A) who is a member of the Board of Directors of Company on the Closing Date, (B) who, as of such date of determination, has been a member of such Board of Directors for at least the 12 preceding months (or, if such date of determination occurs during the period comprising the first 12 months after the Closing Date, since the Closing Date), or (C) who has been nominated to be a member of such Board of Directors, directly or indirectly, by KKR or Persons nominated by KKR or who has been nominated to be a member of such Board of Directors by a majority of the other Continuing Directors then in office. "Class" means, as applied to Lenders, each of the following three classes of Lenders: (i) Lenders having Revolving Loan Exposure, (ii) Lenders having Tranche A Term Loan Exposure, and (iii) Lenders having Tranche B Term Loan Exposure and/or Tranche C Term Loan Exposure (taken together as a single class). "Closing Date" means the date on or before June 30, 1997, on which the initial Loans are made. "Collateral" means all of the personal property (including capital stock) in which Liens are purported to be granted pursuant to the Collateral Documents as security for the obligations. "Collateral Agent" means BTCo, or any Person serving as successor Administrative Agent hereunder, in its capacity (i) as Collateral Agent under the Pledge Agreements and the Intercreditor Agreement on behalf of (a) Lenders and Lender Counterparties (as defined in the Master Pledge Agreement) and (b) the PBGC, and (ii) as Collateral Agent under this Agreement, the Guaranties and the Collateral Documents (other than the Pledge Agreements) on behalf of Lenders and Lender Counterparties. 10 "Collateral Documents" means the Pledge Agreements, this Agreement (with respect to Section 8 hereof) and any security documents that may be entered into from time to time after the Closing Date by any Subsidiary of Company pursuant to subsection 6.7B or by Company pursuant to Section 8. "Commercial Letter of Credit" means any letter of credit or similar instrument issued for the purpose of providing the primary payment mechanism in connection with the purchase of any materials, goods or services by Company or any of its Subsidiaries in the ordinary course of business of Company or such Subsidiary. "Commitments" means the commitments of Lenders to make Loans as set forth in subsection 2.1A. "Commodities Agreement" means any forward commodities contract, commodity futures contract, commodities option contract or similar agreement or arrangement to which Company or any of its Subsidiaries is a party. "Company" has the meaning assigned to that term in the introduction to this Agreement. "Company Guaranty" means the Company Guaranty executed and delivered by Company on the Closing Date, substantially in the form of Exhibit XVII annexed hereto, as such Company Guaranty may thereafter be amended, supplemented or otherwise modified from time to time. "Compliance Certificate" means a certificate substantially in the form of Exhibit IX annexed hereto delivered to Administrative Agent and Lenders by Company pursuant to subsection 6.1(iii). "Confidential Information Memorandum" means that certain Confidential Information Memorandum relating to Company dated February, 1997. "Consent Solicitation" means the solicitation by Company, from the holders of outstanding Existing Subordinated Notes, of consents to certain amendments to the Existing Subordinated Note Indenture in accordance with the terms of the Debt Tender Offer Materials. "Consolidated Adjusted EBITDA" means, with respect to any Person for any period, an amount equal to (i) Consolidated Net Income plus (ii) to the extent the following items are deducted in calculating such Consolidated Net Income, the sum, without duplication, of the amounts for such period of (a) Consolidated Interest Expense, (b) taxes computed on the basis of income, (c) total depreciation expense, (d) total amortization expense (including amortization of deferred financing fees), (e) any expenses or charges incurred in connection with any issuance of debt or equity Securities (including 11 upfront fees payable in respect of bank facilities), (f) any restructuring charges or reserves, (g) any expenses or charges relating to the Recapitalization, (h) any Receivables Fees, (i) any fees and expenses related to Acquisitions and Investments permitted hereunder, (j) any other non-cash charges, (k) any deduction for minority interest expense, and (l) any other non-recurring charges minus (iii) to the extent the following items are added in calculating such Consolidated Net Income, the sum, without duplication, of the amounts for such period of (a) any non-recurring gains, and (b) any non-cash gains, all of the foregoing as determined on a consolidated basis for such Person and its Subsidiaries in conformity with GAAP; provided that, for purposes of subsections 7.6 and 7.7(ii) only, (X) Consolidated Adjusted EBITDA of any Included Pro Forma Entity (other than any Unrestricted Subsidiary redesignated as a Subsidiary of Company) shall be increased (if positive) or decreased (if negative) by any Pro Forma Adjustment applicable thereto and (Y) Consolidated Adjusted EBITDA of Company and its Subsidiaries shall be increased (if positive) or decreased (if negative) by the Net EBITDA Adjustment. "Consolidated Capital Expenditures" means, for any period, the aggregate of all expenditures (whether paid in cash or other consideration or accrued as a liability and including that portion of Capital Leases which is capitalized as principal on the consolidated balance sheet of Company and its Subsidiaries) by Company and its Subsidiaries during that period that, in conformity with GAAP, are included in "additions to property, plant or equipment" or comparable items reflected in the consolidated statement of cash flows of Company and its Subsidiaries; provided that Consolidated Capital Expenditures shall not include (i) any such expenditures constituting all or a portion of the purchase price in connection with any Acquisition, (ii) any such expenditures made in connection with the replacement, substitution, repair or restoration of any assets to the extent financed (a) with insurance proceeds received by Company or any of its Subsidiaries on account of the loss of, or any damage to, the assets being replaced, substituted for, repaired or restored or (b) with the proceeds of any compensation awarded to Company or any of its Subsidiaries as a result of the taking, by eminent domain or condemnation, of the assets being replaced or substituted for, (iii) the purchase price of any equipment that is purchased simultaneously with the trade-in of any existing equipment by Company or any of its Subsidiaries to the extent that the gross amount of such purchase price is reduced by any credit granted by the seller of such equipment for such equipment being traded in, or (iv) the purchase price of any property, plant or equipment purchased within one year of the consummation of any Asset Sale or any other sale by Company or any of its Subsidiaries of any other property, plant or equipment to the extent purchased with the Net Asset Sale Proceeds of such Asset Sale or the proceeds of such other sale. "Consolidated Current Assets" means, as at any date of determination, the total assets of Company and its Subsidiaries on a consolidated basis which may properly be classified as current assets in conformity with GAAP, excluding Cash and Cash Equivalents. 12 "Consolidated Current Liabilities" means, as at any date of determination, the total liabilities of Company and its Subsidiaries on a consolidated basis which may properly be classified as current liabilities in conformity with GAAP, excluding the current portions of Funded Debt. "Consolidated Excess Cash Flow" means, for any Fiscal Year, an amount (if positive) equal to (i) the sum, without duplication, of the amounts for such Fiscal Year of (a) Consolidated Net Income, (b) the amount of all non-cash charges to the extent deducted in arriving at such Consolidated Net Income, (c) any net decrease in Consolidated Working Capital since the end of the preceding Fiscal Year (other than any such decrease resulting from transfers of accounts receivable pursuant to an Accounts Receivable Facility), and (d) the aggregate net non-cash loss realized by Company and its Subsidiaries in connection with the sale, lease, transfer or other disposition of assets by Company and its Subsidiaries during such Fiscal Year (other than sales in the ordinary course of business), to the extent deducted in arriving at such Consolidated Net Income, minus (ii) the sum, without duplication, of the amounts for such Fiscal Year of (a) the amount of all non-cash credits to the extent added in arriving at such Consolidated Net Income, (b) Consolidated Capital Expenditures actually paid in Cash during such Fiscal Year (net of the principal amount of any Indebtedness incurred to finance such Consolidated Capital Expenditures, whether incurred in such Fiscal Year or in the immediately succeeding Fiscal Year), (c) the aggregate amount of all prepayments of Revolving Loans and Swing Line Loans to the extent accompanied by permanent reductions in the Revolving Loan Commitments, (d) the aggregate amount of all principal payments in respect of any Indebtedness of Company or any of its Subsidiaries (including the Term Loans and the principal component of any payments in respect of Capital Leases), other than (1) any mandatory prepayments of the Term Loans pursuant to subsection 2.4B(iii), (2) any prepayments of Indebtedness with the proceeds of other Indebtedness, or (3) repayments in respect of any revolving credit facility except to the extent there is a permanent reduction in commitments thereunder in connection with such repayments, (e) any net increase in Consolidated Working Capital since the end of the preceding Fiscal Year, (f) the aggregate net non-cash gain realized by Company and its Subsidiaries in connection with the sale, lease, transfer or other disposition of assets by Company and its Subsidiaries during such Fiscal Year (other than sales in the ordinary course of business), (g) the aggregate amount of all Cash payments made by Company and its Subsidiaries in respect of long-term liabilities of Company or any of its Subsidiaries other than Indebtedness, (h) the aggregate amount of new Investments made in Cash in accordance with subsection 7.3(vi), (i) the aggregate amount of Cash consideration paid in connection with any Acquisitions (net of any such consideration paid out of any Net Asset Sale Proceeds), (j) the aggregate amount of Restricted Junior Payments made in accordance with subsection 7.5(iii)(a) (to the extent such Restricted Junior Payments are required by the terms of the applicable management and/or employee stock plan, stock subscription agreement or shareholder agreement) and subsections 7.5(iii)(b), (c) and (f), (k) the aggregate amount of any expenditures actually made in Cash by Company and its Subsidiaries during such Fiscal Year (including 13 expenditures for the payment of financing fees) to the extent such expenditures are not expensed during such Fiscal Year, (l) the aggregate amount of any net currency gains realized by Company and its Subsidiaries during such Fiscal Year that are prohibited from being repatriated to the United States, and (m) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash during such Fiscal Year that are required in connection with any prepayment of Indebtedness and that are accounted for by Company as extraordinary items, all of the foregoing as determined on a consolidated basis for Company and its Subsidiaries in accordance with GAAP. "Consolidated Gross Sales Revenues" means, for any Fiscal Year, an amount equal to gross sales revenues of Company and its Subsidiaries for such Fiscal Year on a consolidated basis determined in conformity with GAAP; provided that, for purposes of calculating such gross sales revenues, (i) the gross sales revenues of any business acquired during such Fiscal Year in an Acquisition permitted under subsection 7.7(ii) shall be determined on a pro forma basis (based on assumptions believed by Company in good faith to be reasonable) as if such Acquisition had been consummated on the first day of such Fiscal Year and (ii) the gross sales revenues of any business sold or otherwise disposed of by Company or any of its Subsidiaries during such Fiscal Year shall be excluded in their entirety. "Consolidated Gross Sales Revenues Adjustment" means, for any Fiscal Year, 5% of the amount equal to (i) the increase (if any) of consolidated gross sales revenues of Company and its Subsidiaries for such Fiscal Year attributable to any business acquired during such Fiscal Year in an Acquisition permitted under subsection 7.7(ii) minus (ii) the decrease (if any) in such consolidated gross sales revenues attributable to any business sold or otherwise disposed of by Company or any of its Subsidiaries during such Fiscal Year. "Consolidated Interest Expense" means, with respect to any Person for any period, an amount equal to, without duplication, (i) total interest expense (including that portion attributable to Capital Leases in accordance with GAAP, capitalized interest and any administrative agency or commitment or other similar fees payable in respect of bank facilities) of such Person and its Subsidiaries, determined on a consolidated basis in accordance with GAAP, with respect to all outstanding Indebtedness of such Person and its Subsidiaries, including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers' acceptance financings and net costs under Interest Rate Agreements, but excluding, however, (a) any interest expense (including amortization of discount, amortization of debt issuance costs, and amortization of any other charges relating to the Recapitalization) not payable in Cash during such period and (b) any Receivables Fees and any amounts referred to in subsection 2.3 payable to Administrative Agent, Syndication Agent, Documentation Agent and Lenders on or before the Closing Date minus (ii) total interest income of such Person and its Subsidiaries, determined on a consolidated basis in accordance with GAAP, but excluding, however, any interest income not received in Cash during such period; provided that, for purposes 14 of subsections 7.6 and 7.7(ii) only, Consolidated Interest Expense of Company and its Subsidiaries shall be increased (if positive) or decreased (if negative) by the Net Interest Adjustment. "Consolidated Leverage Ratio" means, as of the last day of any Fiscal Quarter, the ratio of (i) Consolidated Total Debt as of such date to (ii) Consolidated Adjusted EBITDA of Company and its Subsidiaries for the four-Fiscal Quarter period ending on such date. "Consolidated Net Income" means, with respect to any Person (the "Subject Person") for any period, the net income (or loss) of the Subject Person and its Subsidiaries on a consolidated basis for such period taken as a single accounting period determined in conformity with GAAP; provided that there shall be excluded (i) the income (or loss) of any Person in which any other Person (other than the Subject Person or any of its Subsidiaries) has a joint interest, except to the extent of the amount of dividends or other distributions actually paid to the Subject Person or any of its Subsidiaries by the other Person during such period, (ii) the income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of the Subject Person or is merged into or consolidated with the Subject Person or any of its Subsidiaries or that Person's assets are acquired by the Subject Person or any of its Subsidiaries, (iii) any after-tax gains or losses, and any related fees and expenses, in each case to the extent attributable to Asset Sales or returned surplus assets of any Pension Plan, (iv) any translation currency gains and losses, and (v) (to the extent not included in clauses (i) through (iv) above) any net extraordinary gains or net extraordinary losses. "Consolidated Total Debt" means, as at any date of determination, the aggregate stated balance sheet amount of all Indebtedness of Company and its Subsidiaries under clauses (i), (ii) and (iii) of the definition of "Indebtedness" (but only to the extent, in the case of said clause (iii), of any drawings honored under letters of credit and not yet reimbursed by Company or any of its Subsidiaries), as determined on a consolidated basis in accordance with GAAP. "Consolidated Working Capital" means, as at any date of determination, the excess (or deficit) of Consolidated Current Assets over Consolidated Current Liabilities. "Contractual Obligation", as applied to any Person, means any provision of any Security issued by that Person or of any material indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject. "Currency Agreement" means any foreign exchange contract, currency swap agreement, currency futures contract, currency option contract, synthetic currency 15 exchange rate cap or other similar agreement or arrangement to which Company or any of its Subsidiaries is a party. "Debt Tender Offer" means the offer by Company to repurchase up to 100% of the outstanding Existing Subordinated Notes pursuant to the Debt Tender Offer Materials. "Debt Tender Offer Materials" means the Offer to Purchase and Consent Solicitation Statement dated April 15, 1997 relating to the Debt Tender Offer and the accompanying Consent and Letter of Transmittal. "Defaulting Lender" has the meaning assigned to that term in subsection 2.9. "Default Period" has the meaning assigned to that term in subsection 2.9. "Delayed-Draw Term Loans" means a portion of the Tranche A Term Loans, in an aggregate amount not to exceed the maximum aggregate consideration (including accrued interest and premiums) which Company may be required to pay in connection with the redemption of all outstanding Existing Senior Notes, that may be borrowed by Company at any time during the period commencing on the Closing Date and ending on the 35th day thereafter for the purpose of funding such redemption; provided that (i) Company shall have delivered to Administrative Agent, on or before the tenth Business Day immediately preceding the Closing Date, an Officer's Certificate requesting that a portion of the Tranche A Term Loans be made available as Delayed-Draw Term Loans and setting forth in reasonable detail the calculation of the aggregate principal amount of the Delayed-Draw Term Loans and (ii) on or before the Closing Date, Company shall have caused irrevocable notice of the redemption of the Existing Senior Notes to be given in accordance with the terms of the Existing Senior Note Indenture. "Deposit Account" means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or like organization, other than an account evidenced by a negotiable certificate of deposit. "Documentation Agent" has the meaning assigned to that term in the introduction to this Agreement. "Dollar Loans" means Loans denominated and payable in Dollars. "Dollars" and the sign "$" mean the lawful money of the United States of America. 16 "Domestic Subsidiary" means a Subsidiary of Company organized under the laws of the United States or any state thereof. "Eligible Assignee" means (A) (i) a commercial bank organized under the laws of the United States or any state thereof; (ii) a savings and loan association or savings bank organized under the laws of the United States or any state thereof; (iii) a commercial bank organized under the laws of any other country or a political subdivision thereof; provided that (x) such bank is acting through a branch or agency located in the United States or (y) such bank is organized under the laws of a country that is a member of the Organization for Economic Cooperation and Development or a political subdivision of such country; and (iv) any other entity which is an "accredited investor" (as defined in Regulation D under the Securities Act) which extends credit or buys loans as one of its businesses including insurance companies, mutual funds and lease financing companies; and (B) any Lender, any Affiliate of any Lender and, with respect to any Lender that is an investment fund that invests in commercial loans, any other investment fund that invests in commercial loans and that is managed by the same investment advisor as such Lender or by an Affiliate of such investment advisor; provided that no Affiliate of Company shall be an Eligible Assignee. "Environmental Claims" means any and all administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigations (other than internal reports prepared by Company or any of its Subsidiaries (i) in the ordinary course of such Person's business or (ii) as required in connection with a financing transaction or an acquisition or disposition of real estate) or proceedings relating in any way to any Environmental Law (for purposes of this definition, "Claims"), including (a) any and all Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law and (b) any and all Claims by any Third Party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from Hazardous Materials or arising from alleged injury or threat of injury to health, safety or the environment. "Environmental Laws" means any and all present and future laws, statutes, ordinances, rules, regulations, requirements, restrictions, permits, orders, and determinations of any governmental authority that have the force and effect of law, and that pertain to pollution (including hazardous, toxic or dangerous substances), natural resources or the environment, whether federal, state, or local, domestic or foreign including environmental response laws such as the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 and as the same may be further amended (hereinafter collectively called "CERCLA"). "ERISA" means the Employee Retirement Income Security Act of 1974, as amended, and any regulations promulgated thereunder. 17 "ERISA Affiliate" means any trade or business (whether or not incorporated) under common control with Company or any of its Subsidiaries within the meaning of Section 414(b) or (c) of the Internal Revenue Code or (for purposes of provisions of the Internal Revenue Code relating to Section 412 of the Internal Revenue Code) Section 414(m) or (o) of the Internal Revenue Code. "ERISA Event" means any of the following events or occurrences if such event or occurrence could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect: (i) the failure to make a required contribution to a Pension Plan; (ii) a withdrawal by Company, any of its Subsidiaries 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 operation which is treated as such a withdrawal under Section 4062(e) of ERISA; (iii) a complete or partial withdrawal by Company, any of its Subsidiaries or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization or is insolvent pursuant to Section 4241 or 4245 of ERISA; (iv) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate, in each case with respect to a Pension Plan or Multiemployer Plan; (v) an event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (vi) the imposition of any liability upon Company, any of its Subsidiaries or any ERISA Affiliate under Title IV of ERISA (other than with respect to PBGC premiums due but not delinquent under Section 4007 of ERISA) upon Company, any of its Subsidiaries or any ERISA Affiliate; (vii) the imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan; (viii) receipt from the Internal Revenue Service of notice of the failure of any Pension Plan (or any other Plan intended to qualify under Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code; or (ix) the violation of any applicable foreign law, or an event or occurrence that is comparable to any of the foregoing events or occurrences, in either case with respect to a Plan that is not subject to regulation under ERISA by reason of Section 4(b)(4) of ERISA. "Event of Default" means each of the events set forth in Section 8. "Exchange Act" means the Securities Exchange Act of 1934, as amended from time to time, and any successor statute. "Exchange Rate" means, on any date when an amount expressed in a currency other than Dollars is to be determined with respect to any Letter of Credit, the spot rate of exchange of the applicable Issuing Lender in the New York foreign exchange 18 market for the purchase by such Issuing Lender of such currency in exchange for Dollars two Business Days prior to such date, expressed as a number of units of such currency per one Dollar. "Excluded Pro Forma Entity" means, for any period, (i) any Person, property, business or asset (other than an Unrestricted Subsidiary) that is sold, transferred or otherwise disposed of by Company or any of its Subsidiaries to a Third Party during such period; provided that, for purposes of calculating any consolidated financial information for any Excluded Pro Forma Entity to be used in determining the Net EBITDA Adjustment or Net Interest Adjustment for such period, financial information pertaining to any Person, property, business or asset that was related to such Excluded Pro Forma Entity but that was not disposed of by Company or such Subsidiary shall not be consolidated with the relevant financial information of the Excluded Pro Forma Entity and (ii) any Subsidiary of Company that is redesignated as an Unrestricted Subsidiary during such period. "Existing A/R Facility" means the accounts receivable factoring facility established pursuant to that certain Receivables Purchase Agreement dated as of December 3, 1993 between Amphenol Funding Corp., as Seller, Company, individually and as initial servicer, Pooled Accounts Receivable Capital Corporation, as purchaser, and Bank of Montreal, as agent, as amended prior to the Closing Date. "Existing Credit Agreement" means that certain Credit Agreement dated as of November 30, 1995 between Company, the lenders parties thereto and The Chase Manhattan Bank (formerly Chemical Bank), as agent, as amended prior to the Closing Date. "Existing Public Stockholders" means, collectively, all of the holders of Pre-Merger Shares other than Individual Seller and Management Investors. "Existing Senior Note Indenture" means the indenture pursuant to which the Existing Senior Notes were issued, as such indenture may be amended from time to time. "Existing Senior Notes" means Company's $100,000,000 in initial aggregate principal amount of 10.45% Senior Notes due 2001. "Existing Subordinated Note Indenture" means the indenture pursuant to which the Existing Subordinated Notes were issued, as amended pursuant to the Consent Solicitation and as such indenture may be further amended from time to time. "Existing Subordinated Notes" means Company's $95,000,000 in initial aggregate principal amount of 12.75% Senior Subordinated Notes due 2002. 19 "Federal Funds Effective Rate" means, for any period, a fluctuating interest rate equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by Administrative Agent from three Federal funds brokers of recognized standing selected by Administrative Agent. "Financial Plan" has the meaning assigned to that term in subsection 6.1(ix). "First Priority" means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that (i) such Lien has priority over any other Lien on such Collateral and (ii) such Lien is the only Lien (other than Permitted Encumbrances) to which such Collateral is subject. "Fiscal Quarter" means a fiscal quarter of any Fiscal Year. "Fiscal Year" means the fiscal year of Company and its Subsidiaries ending on December 31 of each calendar year (or any other date to which such Fiscal Year-end is changed pursuant to subsection 6.10). "Funded Debt", as applied to any Person, means all Indebtedness for borrowed money of that Person (including any current portions thereof) which by its terms or by the terms of any instrument or agreement relating thereto matures more than one year from, or is directly renewable or extendable at the option of that Person to a date more than one year from (including an option of that Person under a revolving credit or similar agreement obligating the lender or lenders to extend credit over a period of one year or more from), the date of the creation thereof. "Funding and Payment Office" means (i) in respect of fundings and payments with respect to Dollar Loans, the office of Administrative Agent and Swing Line Lender located at One Bankers Trust Plaza, 130 Liberty Street, New York, New York 10006, (ii) in respect of fundings and payments with respect to Sterling Loans, the office of Administrative Agent located at 1 Appold Street, Broadgate, London EC2A 2AT, or (iii) with respect to either clause (i) or (ii), such other office of Administrative Agent and/or Swing Line Lender as may from time to time hereafter be designated as such in a written notice delivered by Administrative Agent and/or Swing Line Lender to Company and each Lender. "Funding Date" means the date of the funding of a Loan. 20 "GAAP" means, subject to the limitations on the application thereof set forth in subsection 1.2, generally accepted accounting principles set forth in opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession in the United States, in each case as the same are applicable to the circumstances as of the date of determination. "Governmental Authorization" means any permit, license, authorization, plan, directive, consent order or consent decree of or from any federal, state, local or foreign governmental authority, agency or court. "Guarantee Obligations" means, as to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness of any other Person (the "Primary Obligor") in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (i) to purchase any such Indebtedness or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (a) for the purchase or payment of any such Indebtedness or (b) to maintain working capital or equity capital of the Primary Obligor or otherwise to maintain the net worth or solvency of the Primary Obligor, (iii) to purchase property, Securities or services primarily for the purpose of assuring the owner of any such Indebtedness of the ability of the Primary Obligor to make payment of such Indebtedness or (iv) otherwise to assure or hold harmless the owner of such Indebtedness against loss in respect thereof; provided, however, that the term "Guarantee Obligations" shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation shall be deemed to be an amount equal to the stated or determinable amount of the Indebtedness in respect of which such Guarantee Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith. "Guaranties" means the Company Guaranty, the Subsidiary Guaranty and any guaranty entered into by any Subsidiary of Company pursuant to subsection 6.7B. "Hazardous Materials" means any substance that is defined or listed as a hazardous, toxic or dangerous substance under any present or future Environmental Law or that is otherwise regulated or prohibited or subject to investigation or remediation under any present or future Environmental Law because of its hazardous, toxic, or dangerous properties, including (i) any substance that is a "hazardous substance" under CERCLA (as defined in the definition of "Environmental Laws") and (ii) petroleum wastes or products. 21 "Hedge Agreement" means any Interest Rate Agreement, Commodities Agreement or Currency Agreement designed to hedge against fluctuations in interest rates, the price or availability of commodities, or currency values, respectively. "Included Pro Forma Entity" means, for any period, (i) any Person, property, business or asset (other than an Unrestricted Subsidiary) that is acquired by Company or any of its Subsidiaries from a Third Party during such period and not subsequently sold, transferred or otherwise disposed of by Company or such Subsidiary to a Third Party during such period; provided that, for purposes of calculating any consolidated financial information for any Included Pro Forma Entity to be used in determining the Net EBITDA Adjustment or Net Interest Adjustment for such period, financial information pertaining to any Person, property, business or asset that was related to such Included Pro Forma Entity but that was not acquired by Company or such Subsidiary shall not be consolidated with the relevant financial information of the Included Pro Forma Entity and (ii) any Unrestricted Subsidiary that is redesignated as a Subsidiary of Company during such period. "Indebtedness", as applied to any Person, means (i) all indebtedness of such Person for borrowed money, (ii) that portion of obligations with respect to Capital Leases that is properly classified as a liability on a balance sheet of such Person in conformity with GAAP, (iii) any obligation incurred by such Person in connection with banker's acceptances and the maximum aggregate amount from time to time available for drawing under all outstanding letters of credit issued for the account of such Person together, without duplication, with the amount of all honored but unreimbursed drawings thereunder, (iv) any obligation owed for all or any part of the deferred purchase price of property or services (excluding any such obligations incurred under ERISA), which purchase price (a) is due more than six months from the date of incurrence of the obligation in respect thereof and (b) would be shown on the liability side of the balance sheet of such Person in accordance with GAAP, (v) all monetary obligations of such Person under Hedge Agreements (it being understood that monetary obligations under Interest Rate Agreements, Commodities Agreements and Currency Agreements other than Hedge Agreements constitute Investments and not Indebtedness), and (vi) all indebtedness referred to in clauses (i) through (iv) above secured by any Lien on any property or asset owned or held by that Person regardless of whether the indebtedness secured thereby shall have been assumed by that Person or is nonrecourse to the credit of that Person; provided that the term "Indebtedness" shall in no event include (X) any obligations in respect of any Accounts Receivable Facility or (Y) any trade payables or accrued expenses arising in the ordinary course of business. "Indemnitee" has the meaning assigned to that term in subsection 10.3. "Individual Seller" means Lawrence J. DeGeorge and certain of his family members and affiliated investment vehicles owning, in the aggregate, approximately 30% of the Pre-Merger Shares. 22 "Intellectual Property" means all patents, trademarks, tradenames, copyrights, technology, know-how and processes used in or necessary for the conduct of the business of Company and its Subsidiaries as currently conducted that are material to the condition (financial or otherwise), business or operations of Company and its Subsidiaries, taken as a whole. "Intercreditor Agreement" means the Intercreditor Agreement, dated as of the Closing Date, by and among the PBGC, Administrative Agent, Collateral Agent and Company, substantially in the form of Exhibit XVIII annexed hereto, as such Intercreditor Agreement may thereafter be amended, modified or otherwise supplemented from time to time. "Interest Payment Date" means (i) with respect to any Base Rate Loan, each March 31, June 30, September 30 and December 31 of each year, commencing on the first such date to occur after the Closing Date, and (ii) with respect to any LIBOR Loan, the last day of each Interest Period applicable to such Loan; provided that, in the case of each Interest Period of longer than three months, "Interest Payment Date" shall also include each date that is three months, or an integral multiple thereof, after the commencement of such Interest Period. "Interest Period" has the meaning assigned to that term in subsection 2.2B. "Interest Rate Agreement" means any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement or other similar agreement or arrangement to which Company or any of its Subsidiaries is a party. "Interest Rate Determination Date" means (i) with respect to any Interest Period relating to a Dollar Loan, the second Business Day prior to the first day of such Interest Period, and (ii) with respect to any Interest Period relating to a Sterling Loan, the first day of such Interest Period. "Internal Revenue Code" means the Internal Revenue Code of 1986, as amended to the date hereof and from time to time hereafter, and any successor statute. "Investment" means (i) any purchase or other acquisition by Company or any of its Subsidiaries of, or of a beneficial interest in, any Securities of any other Person (other than a Person that prior to such purchase or acquisition was a Subsidiary of Company), (ii) any loan, advance (other than advances to employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business) or capital contribution by Company or any of its Subsidiaries to any Third Party, including all indebtedness and accounts receivable from that Third Party that are not current assets or did not arise from sales to that Third Party in the ordinary course of business, (iii) the designation of any Person as an Unrestricted Subsidiary, or (iv) any monetary obligations under Interest Rate Agreements, Commodities 23 Agreements or Currency Agreements not constituting Hedge Agreements. The amount of any Investment shall be (A) the original cost of such Investment (determined, in the case of an Investment described in clause (iii) above, as provided in the definition of "Subsidiary", without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment, minus (B) the lesser of (1) the aggregate amount of any repayments, redemptions, dividends or distributions thereon or proceeds from the sale thereof, in each case to the extent of Cash payments (including any Cash received by way of deferred payment pursuant to, or monetization of, a note receivable or otherwise, but only as and when so received) actually received by Company or the applicable Subsidiary of Company, and (2) the aggregate amount described in the immediately preceding clause (A). "Issuing Lender" means, with respect to any Letter of Credit, the Lender which agrees or is otherwise obligated to issue such Letter of Credit, determined as provided in subsection 3.1B(ii). "Joint Venture" means a joint venture, partnership or other similar arrangement, whether in corporate, partnership or other legal form; provided that in no event shall any corporate Subsidiary of any Person be considered to be a Joint Venture to which such Person is a party. "KKR" means Kohlberg Kravis Roberts & Co. L.P. "Lender" and "Lenders" means the persons identified as "Lenders" and listed on the signature pages of this Agreement, together with their successors and permitted assigns pursuant to subsection 10.1, and the term "Lenders" shall include Swing Line Lender unless the context otherwise requires; provided that the term "Lenders", when used in the context of a particular Commitment, shall mean Lenders having that Commitment; and provided, further that the terms "Lender" and "Lenders", when used in the context of the making or carrying of the Sterling Loans of any Lender, shall mean and include the Sterling Lender Affiliate, if any, of such Lender. "Lending Office" means, as to any Lender, the offices or offices of such Lender or its Sterling Lender Affiliate specified as the "Dollar Lending Office" or "Sterling Lending Office", as the case may be, on Schedule 2.1 annexed hereto, or such other office or offices as such Lender may from time to time hereafter designate as such in a written notice delivered by such Lender to Company and Administrative Agent. "Letter of Credit" or "Letters of Credit" means Commercial Letters of Credit and Standby Letters of Credit issued or to be issued by Issuing Lenders for the account of Company pursuant to subsection 3.1. "Letter of Credit Usage" means, as at any date of determination, the sum of (i) the maximum aggregate amount which is or at any time thereafter may become 24 available for drawing under all Letters of Credit then outstanding plus (ii) the aggregate amount of all drawings under Letters of Credit honored by Issuing Lenders and not theretofore reimbursed by Company (including any such reimbursement out of the proceeds of Revolving Loans pursuant to subsection 3.3B). For purposes of this definition, any amount described in clause (i) or (ii) of the preceding sentence which is denominated in a currency other than Dollars shall be valued based on the applicable Exchange Rate for such currency as of the applicable date of determination. "LIBOR" means, for any Interest Rate Determination Date with respect to an Interest Period for a LIBOR Loan, the rate per annum determined on the basis of the London interbank offered rate for Dollar deposits (or, in the case of Sterling Loans, Sterling deposits) with maturities comparable to such Interest Period as of approximately 11:00 A.M. (London time) on such Interest Rate Determination Date as set forth on Telerate Page 3750; provided that in the event such rate does not appear on Page 3750 (or otherwise) of the Telerate Service, "LIBOR" for purposes of this paragraph shall be determined by reference to (i) such other publicly available service for displaying interest rates for deposits in the Applicable Currency as may be agreed upon by Company and Administrative Agent or (ii) in the absence of such agreement, the arithmetic average (rounded upward to the nearest 1/16 of one percent) of the offered quotations, if any, to first class banks in the London interbank market for the Applicable Currency by Reference Lenders for Dollar deposits (or, in the case of Sterling Loans, Sterling deposits) of amounts in same day funds comparable to the respective principal amounts of the LIBOR Loans of Reference Lenders for which LIBOR is then being determined (which principal amount shall be deemed to be $1,000,000 (or (pounds)1,000,000, in the case of a Sterling Loan) in the case of any Reference Lender not making, converting to or continuing such a LIBOR Loan) with maturities comparable to such Interest Period as of approximately 10:00 A.M. (New York time) (or 11:00 A.M. (London time), in the case of Sterling Loans) on such Interest Rate Determination Date; provided that if any Reference Lender fails to provide Administrative Agent with its aforementioned quotation then LIBOR shall be determined based on the quotation(s) provided to Administrative Agent by the other Reference Lender(s). "LIBOR Loans" means Loans bearing interest at rates determined by reference to LIBOR as provided in subsection 2.2A. "Lien" means any lien, mortgage, pledge, assignment, security interest, charge or other similar encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any security interest) and any other similar preferential arrangement having the practical effect of any of the foregoing. "LLC Pledge Agreement" means the LLC Pledge Agreement executed and delivered on the Closing Date by Company and Collateral Agent, in form and substance satisfactory to Collateral Agent and Administrative Agent, as such LLC Pledge 25 Agreement may thereafter be amended, supplemented or otherwise modified from time to time. "Loan" or "Loans" means one or more of the Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans, Revolving Loans or Swing Line Loans or any combination thereof. "Loan Documents" means this Agreement, the Notes, the Letters of Credit (and any applications for Letters of Credit), the Guaranties and the Collateral Documents. "Loan Party" means each Borrower, each Subsidiary Guarantor and each Subsidiary executing and delivering a Loan Document after the Closing Date pursuant to subsection 6.7B, and "Loan Parties" means all such Persons, collectively. "MLA Reference Banks" means BTCo, Chase and BNY. "Management Group" means, at any time, the Chairman of the Board, the President, any Executive Vice President or Vice President, the Treasurer and the Secretary of the Borrower at such time. "Management Investors" means the management officers and employees of Company and its Subsidiaries identified as Management Investors on Schedule 4.1C annexed hereto. "Management Subscription Agreements" means the Management Stock Subscription Agreements dated as of the Closing Date between Company and the Management Investors providing for the retention of Pre-Merger Shares and/or the purchase of Post-Merger Shares by the Management Investors, in each case as in effect on the Closing Date. "Mandatory Liquid Asset Costs" means, with respect to each Tranche A Lender in respect of any Sterling Loans, any additional cost to such Lender of complying with the relative reserve asset ratio required by the Bank of England from time to time, expressed as a percentage per annum, and calculated as set forth in Schedule 1.1 annexed hereto. "Margin Stock" has the meaning assigned to that term in Regulation U of the Board of Governors of the Federal Reserve System as in effect from time to time. "Master Pledge Agreement" means the Master Pledge Agreement executed and delivered on the Closing Date by Company and Collateral Agent, substantially in the form of Exhibit XV annexed hereto, as such Master Pledge Agreement may thereafter be amended, supplemented or otherwise modified from time to time. 26 "Material Adverse Effect" means any circumstance or condition affecting the business, assets, operations, properties or financial condition of Company and its Subsidiaries, taken as a whole, that would materially adversely affect (a) the ability of Loan Parties, taken as a whole, to perform their obligations under this Agreement and the other Loan Documents, taken as a whole, or (b) the rights and remedies of Administrative Agent and Lenders under this Agreement and the other Loan Documents, taken as a whole. "Material Foreign Subsidiary" means a Material Subsidiary that is not a Domestic Subsidiary. "Material Subsidiary" means (i) each U.K. Borrower and (ii) each Subsidiary of Company now existing or hereafter acquired or formed by Company which, on a consolidated basis for such Subsidiary and its Subsidiaries, (a) for the most recent Fiscal Year accounted for more than 5% of the consolidated gross revenues of Company and its Subsidiaries or (b) as at the end of such Fiscal Year, was the owner of more than 5% of the consolidated total assets of Company and its Subsidiaries. "Merger" means the merger of Newco with and into Company in accordance with the terms of the Merger Agreement, with Company being the surviving corporation in such Merger. "Merger Agreement" means that certain Agreement and Plan of Merger by and among Company and Newco dated as of January 23, 1997, as amended as of April 19, 1997, in the form delivered to Administrative Agent and Lenders prior to their execution of this Agreement. "Multiemployer Plan" means a "multiemployer plan", within the meaning of Section 4001(a)(3) of ERISA, with respect to which Company, any of its Subsidiaries or any ERISA Affiliate may have liability. "Net Asset Sale Proceeds" means, with respect to any Asset Sale, Cash payments (including any Cash received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) received from such Asset Sale, net of (i) the costs and expenses relating to such Asset Sale, (ii) all taxes paid or estimated to be payable in connection with such Asset Sale, (iii) payment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than the Loans) that is secured by a Lien on the stock or assets in question and that is required to be repaid under the terms thereof as a result of such Asset Sale and (iv) the amount of any reasonable reserves established in accordance with GAAP against any liabilities (other than taxes described in clause (ii) above) that are (a) associated with the assets that are the subject of such Asset Sale and (b) retained by Company or any of its Subsidiaries; provided that (X) in the event the amount of any taxes estimated to be payable as described in clause (ii) above exceeds the 27 amount actually paid, Company or the applicable Subsidiary shall be deemed to have received Net Asset Sale Proceeds in the amount of such excess on the date such taxes are paid, and (Y) upon any subsequent reduction in the amount of any reserve described in clause (iv) above (other than in connection with a payment by Company or the applicable Subsidiary in respect of the applicable liability), Company or the applicable Subsidiary shall be deemed to have received Net Asset Sale Proceeds on the date and in the amount of such reduction. "Net EBITDA Adjustment" means, for any period, an amount equal to (i) the sum of the aggregate of the amounts of Consolidated Adjusted EBITDA for any Included Pro Forma Entities (calculated for the entire such period for each such Included Pro Forma Entity as if such Included Pro Forma Entity had become an Included Pro Forma Entity on the first day of such period) minus (ii) the sum of the aggregate of the amounts of Consolidated Adjusted EBITDA for any Excluded Pro Forma Entities (calculated for the entire such period for each such Excluded Pro Forma Entity, including any portion thereof prior to the date on which it became an Excluded Pro Forma Entity). "Net Interest Adjustment" means, for any period, an amount equal to (i) the sum of the aggregate of the amounts of Consolidated Interest Expense for any Included Pro Forma Entities (calculated for the entire such period for each such Included Pro Forma Entity, including any portion thereof prior to the date on which it became an Included Pro Forma Entity, in each case on a pro forma basis as if any Indebtedness of such Included Pro Forma Entity that was incurred, assumed or prepaid in connection with the transaction pursuant to which it became an Included Pro Forma Entity had been incurred, assumed or prepaid on the first day of such period) minus (ii) the sum of the aggregate of the amounts of Consolidated Interest Expense for any Excluded Pro Forma Entities (calculated for the entire such period for each such Excluded Pro Forma Entity, including any portion thereof prior to the date on which it became an Excluded Pro Forma Entity). "Newco" means NXS Acquisition Corp. a Delaware corporation existing prior to the Merger. "Newco Equity Amount" has the meaning assigned to that term in the recitals to this Agreement. "New Sub Debt" means the $240,000,000 in aggregate principal amount of 97/8% Senior Subordinated Notes due 2007 of Company issued pursuant to the New Sub Debt Indenture. "New Sub Debt Indenture" means the indenture pursuant to which the New Sub Debt is issued, as such indenture may be amended from time to time. 28 "Non-Excluded Tax" has the meaning assigned to that term in subsection 2.7A. "Notes" means one or more of the Tranche A Term Notes, Tranche B Term Notes, Tranche C Term Notes, Revolving Notes or Swing Line Note or any combination thereof. "Notice of Borrowing" means a notice substantially in the form of Exhibit I annexed hereto delivered by the applicable Borrower to Administrative Agent pursuant to subsection 2.1B with respect to a proposed borrowing. "Notice of Conversion/Continuation" means a notice substantially in the form of Exhibit II annexed hereto delivered by the applicable Borrower to Administrative Agent pursuant to subsection 2.2D with respect to a proposed conversion or continuation of the applicable basis for determining the interest rate with respect to the Loans specified therein. "Notice of Request for Issuance of Letter of Credit" means a notice substantially in the form of Exhibit III annexed hereto delivered by Company to Administrative Agent pursuant to subsection 3.1B(i) with respect to the proposed issuance of a Letter of Credit. "Obligations" means all monetary obligations of every nature of each Loan Party from time to time owed to Agents, Lenders or any of them under the Loan Documents, whether for principal, interest, reimbursement of amounts drawn under Letters of Credit, fees, expenses, indemnification or otherwise. "Officer's Certificate" means, as applied to any corporation, a certificate executed on behalf of such corporation by its chairman of the board (if an officer), its president, one of its vice presidents, its chief financial officer, or its treasurer. "PBGC" means the Pension Benefit Guaranty Corporation or any successor thereto. "Pension Plan" means a pension plan as defined in Section 3(2) of ERISA (other than a Multiemployer Plan), with respect to which Company, any of its Subsidiaries or any ERISA Affiliate may have any liability. "Permitted Encumbrances" means the following types of Liens: (i) Liens for taxes, fees, assessments or other governmental charges which are not delinquent or remain payable without penalty, or to the extent that payment thereof is otherwise not, at the time, required by subsection 6.3; 29 (ii) Liens in respect of property or assets imposed by law, such as carriers', warehousemen's, mechanics', landlords', materialmen's, repairmen's or other similar Liens arising in the ordinary course of business, in each case so long as such Liens do not, individually or in the aggregate, have a Material Adverse Effect; (iii) Liens (other than any Lien imposed pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code or by ERISA) incurred or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return-of-money bonds and other similar obligations incurred in the ordinary course of business (exclusive of obligations in respect of payments for borrowed money); (iv) Liens incurred in the ordinary course of business on securities to secure repurchase and reverse repurchase obligations in respect of such securities; (v) Liens consisting of judgment or judicial attachment liens in circumstances not constituting an Event of Default under subsection 8.8; (vi) easements, rights-of-way, restrictions, minor defects or irregularities of title and other similar encumbrances not interfering in any material respect with the business of Company and its Subsidiaries, taken as a whole; (vii) Liens securing obligations in respect of Capital Leases on the assets subject to such Capital Leases; provided that such Capital Leases are otherwise permitted hereunder. (viii) Liens arising solely by virtue of (a) any statutory or common law provision relating to bankers' liens, rights of set-off or similar rights and remedies with respect to deposit accounts or other funds maintained with a creditor depository institution or (b) any contractual netting arrangement with respect to deposit accounts maintained by any Subsidiaries of Company in the United Kingdom, to the extent such arrangement secures the repayment of any overdraft charged against any such account on a net credit/debit balance basis with the other such accounts; provided that (in the case of both clause (a) and (b) above) the applicable deposit account is not a cash collateral account; (ix) any interest or title of a lessor, or secured by a lessor's interest under, any lease permitted by this Agreement; (x) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods; 30 (xi) Liens on goods the purchase price of which is financed by a Commercial Letter of Credit issued for the account of Company or any of its Subsidiaries; provided that such Lien secures only the obligations of Company or such Subsidiary in respect of such Commercial Letter of Credit to the extent permitted under this Agreement; (xii) leases or subleases granted to others not interfering in any material respect with the business of Company and its Subsidiaries, taken as a whole; and (xiii) Liens created or deemed to exist in connection with an Accounts Receivable Facility, to the extent that any such Lien relates to accounts receivables subject to such program. "Person" means and includes natural persons, corporations, limited partnerships, general partnerships, limited liability companies, limited liability partnerships, joint stock companies, Joint Ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and governments (whether federal, state or local, domestic or foreign, and including political subdivisions thereof) and agencies or other administrative or regulatory bodies thereof. "Plan" means an employee benefit plan (as defined in Section 3(3) of ERISA) which Company or any of its Subsidiaries sponsors or maintains, or to which Company or any of its Subsidiaries makes, is making or is obligated to make contributions, or to which Company or any of its Subsidiaries may have any liability, and includes any Pension Plan. "Pledge Agreements" means the Master Pledge Agreement, the LLC Pledge Agreement and any pledge agreements or other similar instruments that Company may enter into from time to time on or after the Closing Date with respect to any Material Foreign Subsidiary pursuant to the terms of the Master Pledge Agreement, as such agreements or instruments may thereafter be amended, supplemented or otherwise modified from time to time. "Pledged Collateral" means, collectively, the "Pledged Collateral" as defined in each of the Master Pledge Agreement and the LLC Pledge Agreement. "Post-Merger Shares" means the Class A common stock of Company, par value $0.001 per share, outstanding immediately after consummation of the Merger. "Potential Event of Default" means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default. 31 "Pre-Merger Shares" means the Class A common stock of Company, par value $0.001 per share, outstanding immediately prior to the consummation of the Merger. "Prime Rate" means the rate that BTCo announces from time to time as its prime lending rate, as in effect from time to time. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. BTCo or any other Lender may make commercial loans or other loans at rates of interest at, above or below the Prime Rate. "Pro Forma Adjustment" means, for any period with respect to any Included Pro Forma Entity (other than an Unrestricted Subsidiary redesignated as a Subsidiary of Company, for which there shall be no Pro Forma Adjustment), the pro forma increase or decrease in the Consolidated Adjusted EBITDA of such Included Pro Forma Entity that Company in good faith predicts will occur as a result of reasonably identifiable and supportable net cost savings or additional net costs or a reasonably identifiable and supportable increase in sales volume, as the case may be, that will be realizable during such period by combining the operations of such Included Pro Forma Entity with the operations of Company and its Subsidiaries; provided that, so long as such net cost savings or additional net costs or increase in sales volume will be realizable at any time during such period it shall be assumed, for purposes of projecting such pro forma increase or decrease in such Consolidated Adjusted EBITDA, that such net cost savings or additional net costs or increase in sales volume will be realizable during the entire such period; and provided, further that any such pro forma increase or decrease in such Consolidated Adjusted EBITDA shall be without duplication of any net cost savings or additional net costs or increase in sales volume actually realized during such period and already included in such Consolidated Adjusted EBITDA. "Pro Forma Adjustment Certificate" shall mean a certificate of a Responsible Officer of Company delivered pursuant to subsection 6.1(xii) setting forth the information described in clause (d) of subsection 6.1(iii). "Pro Rata Share" means (i) with respect to all payments, computations and other matters relating to the Tranche A Term Loan Commitment or the Tranche A Term Loans of any Lender, the percentage obtained by dividing (x) the Tranche A Term Loan Exposure of that Lender by (y) the aggregate Tranche A Term Loan Exposure of all Lenders, (ii) with respect to all payments, computations and other matters relating to the Tranche B Term Loan Commitment or the Tranche B Term Loan of any Lender, the percentage obtained by dividing (x) the Tranche B Term Loan Exposure of that Lender by (y) the aggregate Tranche B Term Loan Exposure of all Lenders, (iii) with respect to all payments, computations and other matters relating to the Tranche C Term Loan Commitment or the Tranche C Term Loan of any Lender, the percentage obtained by dividing (x) the Tranche C Term Loan Exposure of that Lender by (y) the aggregate Tranche C Term Loan Exposure of all Lenders, (iv) with respect to all payments, 32 computations and other matters relating to the Revolving Loan Commitment or the Revolving Loans of any Lender or any Letters of Credit issued or participations therein purchased by any Lender or any participations in any Swing Line Loans purchased by any Lender, the percentage obtained by dividing (x) the Revolving Loan Exposure of that Lender by (y) the aggregate Revolving Loan Exposure of all Lenders, and (v) for all other purposes with respect to each Lender, the percentage obtained by dividing (x) the sum of the Tranche A Term Loan Exposure of that Lender plus the Tranche B Term Loan Exposure of that Lender plus the Tranche C Term Loan Exposure of that Lender plus the Revolving Loan Exposure of that Lender by (y) the sum of the aggregate Tranche A Term Loan Exposure of all Lenders plus the aggregate Tranche B Term Loan Exposure of all Lenders plus the aggregate Tranche C Term Loan Exposure of all Lenders plus the aggregate Revolving Loan Exposure of all Lenders, in any such case as the applicable percentage may be adjusted by assignments permitted pursuant to subsection 10.1. The initial Pro Rata Share of each Lender for purposes of each of clauses (i), (ii), (iii), (iv) and (v) of the preceding sentence is set forth opposite the name of that Lender in Schedule 2.1 annexed hereto. "Recapitalization" means, collectively, (i) the Merger, (ii) the repurchase of the Existing Senior Notes and the Existing Subordinated Notes and the repayment of all amounts outstanding under the Existing Credit Agreement, (iii) the amendment of the Existing Subordinated Note Indenture pursuant to the Consent Solicitation, (iv) the transactions contemplated by the Stockholders Agreement, and (v) the related transactions in respect of management stock, including the cancellation of options for the purchase of Pre-Merger Shares held by certain members of management, the retention and purchase of Post-Merger Shares by certain members of management and the issuance to certain members of management of options for the purchase of Post-Merger Shares. "Recapitalization Financing Requirements" means the aggregate of all amounts necessary (i) to pay the aggregate cash consideration payable to all holders of Pre-Merger Shares pursuant to the Merger Agreement upon consummation of the Merger, (ii) to repurchase the Existing Senior Notes and the Existing Subordinated Notes and to repay all Indebtedness outstanding under the Existing Credit Agreement, and (iii) to pay Transaction Costs. "Receivables Fees" means distributions or payments made directly or by means of discounts with respect to any participation interests issued or sold in connection with, and other fees paid in connection with, any Accounts Receivable Facility. "Reference Lenders" means BTCo, Chase and BNY. "Refinancing Sub Debt" means Indebtedness of Company issued in exchange for, or the proceeds of which are used to repurchase, redeem, defease or otherwise prepay or retire (collectively, to "Refinance" or a "Refinancing"), New Sub Debt; provided that (i) the aggregate principal amount of such Indebtedness shall not 33 exceed the sum of (a) the aggregate principal amount of New Sub Debt thereby Refinanced plus (b) the amount of any tender premium, call premium or similar premium (any such premium being a "Refinancing Premium") paid by Company in connection with such Refinancing, (ii) such Indebtedness is unsecured and is not guarantied by any Subsidiary of Company, and (iii) the terms of such Indebtedness (including the maturity, amortization schedule, covenants, defaults, remedies, subordination provisions and other material terms thereof) shall be no less favorable in any material respect to Lenders than the other terms of the New Sub Debt. "Refinancing Sub Debt Indenture" means the Indenture pursuant to which any Refinancing Sub Debt is issued, as such indenture may be amended from time to time. "Refunded Swing Line Loans" has the meaning assigned to that term in subsection 2.1A(v). "Register" has the meaning assigned to that term in subsection 2.1D. "Regulation D" means Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time. "Reimbursement Date" has the meaning assigned to that term in subsection 3.3B. "Related Agreements" means, collectively, the Merger Agreement, the Debt Tender Offer Materials, the Stockholders Agreement and the New Sub Debt Indenture. "Requisite Class Lenders" means, at any time of determination (i) for the Class of Lenders having Revolving Loan Exposure, Lenders having or holding more than 50% of the aggregate Revolving Loan Exposure of all Lenders, (ii) for the Class of Lenders having Tranche A Term Loan Exposure, Lenders having or holding more than 50% of the aggregate Tranche A Term Loan Exposure of all Lenders, and (iii) for the Class of Lenders having Tranche B Term Loan Exposure and/or Tranche C Term Loan Exposure, Lenders having or holding more than 50% of the sum of the aggregate Tranche B Term Loan Exposure of all Lenders plus the aggregate Tranche C Term Loan Exposure of all Lenders. "Requisite Lenders" means Lenders having or holding more than 50% of the sum of the aggregate Tranche A Term Loan Exposure of all Lenders plus the aggregate Tranche B Term Loan Exposure of all Lenders plus the aggregate Tranche C Term Loan Exposure of all Lenders plus the aggregate Revolving Loan Exposure of all Lenders. 34 "Responsible Officer" means, with respect to any Person, its chief executive officer, president, or any vice president, managing director, treasurer, controller or other officer of such Person having substantially the same authority and responsibility; provided that, with respect to compliance with financial covenants, "Responsible Officer" means the chief financial officer, treasurer or controller of Company, or any other officer of Company having substantially the same authority and responsibility. "Restricted Acquisition Subsidiary" means (i) a Subsidiary of Company (other than any Subsidiary of either U.K. Borrower, for so long as either U.K. Borrower has any Obligations outstanding) that is (a) first created or acquired by Company or any of its Subsidiaries after the Closing Date in connection with an Acquisition and (b) designated as a "Restricted Acquisition Subsidiary" pursuant to a written notice delivered by Company to Administrative Agent prior to the consummation of such Acquisition; provided that Company may, by written notice to Administrative Agent, redesignate any Restricted Acquisition Subsidiary as a Subsidiary that is not a Restricted Acquisition Subsidiary so long as, after giving effect to the aggregate principal amount of any outstanding Indebtedness of such Restricted Acquisition Subsidiary that was originally incurred pursuant to subsection 7.1(x) as if such Indebtedness were being incurred by such Restricted Acquisition Subsidiary as of the date of such redesignation, no Event of Default or Potential Event of Default shall have occurred and be continuing or would result therefrom and (ii) any Subsidiary of a Restricted Acquisition Subsidiary described in the foregoing clause (i). "Restricted Junior Payment" means (i) any dividend or other distribution, direct or indirect, on account of any shares of any class of stock of Company now or hereafter outstanding, except a dividend payable solely in shares of common stock of Company or payable solely in shares of that class of stock to the holders of that class, (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of stock of Company now or hereafter outstanding, (iii) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of stock of Company now or hereafter outstanding, and (iv) any payment or prepayment of principal of, or redemption, purchase, retirement, defeasance (including in-substance or legal defeasance), sinking fund or similar payment with respect to, any Subordinated Indebtedness. "Revolving Loan Commitment" means the commitment of a Lender to make Revolving Loans to Company pursuant to subsection 2.1A(iv), and "Revolving Loan Commitments" means such commitments of all Lenders in the aggregate. "Revolving Loan Commitment Termination Date" means the seventh anniversary of the Closing Date or such earlier date on which the Revolving Loan Commitments may be terminated pursuant to subsection 2.4B or Section 8. 35 "Revolving Loan Exposure" means, with respect to any Lender as of any date of determination (i) prior to the termination of the Revolving Loan Commitments, that Lender's Revolving Loan Commitment and (ii) after the termination of the Revolving Loan Commitments, the sum, without duplication, of (a) the aggregate outstanding principal amount of the Revolving Loans of that Lender plus (b) in the event that Lender is an Issuing Lender, the aggregate Letter of Credit Usage in respect of all Letters of Credit issued by that Lender (in each case net of any participations purchased by other Lenders in such Letters of Credit or any unreimbursed drawings thereunder) plus (c) the aggregate amount of all participations purchased by that Lender in any outstanding Letters of Credit or any unreimbursed drawings under any Letters of Credit plus (d) in the case of Swing Line Lender, the aggregate outstanding principal amount of all Swing Line Loans (net of any participations therein purchased by other Lenders) plus (e) the aggregate amount of all participations purchased by that Lender in any outstanding Swing Line Loans, in each case without duplication. "Revolving Loans" means the Loans made by Lenders to Company pursuant to subsection 2.1A(iv). "Revolving Notes" means (i) any promissory notes of Company issued pursuant to subsection 2.1E to evidence the Revolving Loans of any Lenders and (ii) any promissory notes issued by Company pursuant to the last sentence of subsection 10.1B(i) in connection with assignments of the Revolving Loan Commitments and Revolving Loans of any Lenders, in each case substantially in the form of Exhibit VII annexed hereto, as they may be amended, supplemented or otherwise modified from time to time. "SEC" means the Securities and Exchange Commission or any successor thereto. "Securities" means any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit-sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as "securities" or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing. "Securities Act" means the Securities Act of 1933, as amended from time to time, and any successor statute. "Standby Letter of Credit" means any standby letter of credit or similar instrument issued for the purpose of supporting (i) Indebtedness of Company or any of its Subsidiaries in respect of industrial revenue or development bonds or financings, (ii) workers' compensation liabilities of Company or any of its Subsidiaries, (iii) the obligations of third party insurers of Company or any of its Subsidiaries arising by virtue 36 of the laws of any jurisdiction requiring third party insurers, (iv) obligations with respect to Capital Leases or operating leases of Company or any of its Subsidiaries, and (v) other lawful corporate purposes of Company or any of its Subsidiaries. "Sterling" and the sign "(pounds)" mean the lawful currency from time to time of the United Kingdom. "Sterling Lender Affiliate" has the meaning assigned to that term in subsection 2.1G. "Sterling Loans" means Loans made to U.K. Borrowers denominated and payable in Sterling. "Sterling Notice Office" means the office of Administrative Agent located at BT Services Ireland Limited, Abbey Court, Irish Life Centre, Lower Abbey Street, Dublin 1, Ireland, Attention: Elizabeth Keegan; telephone: 011 353 1 805-1027; facsimile: 011 353 1 805-1708; or such other office of Administrative Agent as may from time to time hereafter be designated as such in a written notice delivered by Administrative Agent to Company and each Lender. "Stockholders Agreement" means that certain Stockholders Agreement dated as of January 23, 1997 by and among NXS I, L.L.C. and the Persons listed on Schedule 1 annexed thereto, in the form delivered to Administrative Agent and Lenders prior to their execution of this Agreement and as such agreement may be amended from time to time thereafter. "Subordinated Indebtedness" means (i) the Indebtedness of Company evidenced by the Existing Subordinated Notes, (ii) the Indebtedness of Company evidenced by the New Sub Debt, and (iii) the Indebtedness of Company evidenced by any Refinancing Sub Debt. "Subsidiary" means, with respect to any Person, any corporation, partnership, limited liability company, association, joint venture or other business entity of which more than 50% of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; provided that, with respect to Company or any of its Subsidiaries, the term "Subsidiary" shall not include any Unrestricted Subsidiary or any special-purpose entity that is a party to any Accounts Receivable Facility; and provided, further that Company shall be permitted from time to time to (i) designate any Unrestricted Subsidiary as a "Subsidiary" of Company hereunder by written notice to Administrative Agent, so long as 37 (a) no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby and (b) the provisions of subsection 6.7 shall have been complied with in respect of such newly-designated Subsidiary, or (ii) designate any Subsidiary of Company that is formed or acquired after the Closing Date (other than a U.K. Borrower or any Subsidiary of a U.K. Borrower, for so long as either U.K. Borrower has any Obligations outstanding), or any Person that, as a result of the acquisition after the Closing Date by Company or any of its Subsidiaries of any equity Securities of such Person, would otherwise be a Subsidiary of Company hereunder, to be an "Unrestricted Subsidiary" by written notice to Administrative Agent so long as (1) after giving effect to such designation as an Investment in such Unrestricted Subsidiary (calculated as an amount equal to the sum of (X) the net worth of the Subsidiary or other Person so designated (the "Designated Person") immediately prior to such designation (such net worth to be calculated, in the case of a Designated Person that is currently a Subsidiary of Company, without regard to any Obligations of such Subsidiary under the Subsidiary Guaranty) and (Y) the aggregate principal amount of any Indebtedness owed by the Designated Person to Company or any of its Subsidiaries immediately prior to such designation, all calculated, except as set forth in the parenthetical to clause (X) above, on a consolidated basis in accordance with GAAP), Company shall be in compliance with the provisions of subsection 7.3(vi), (2) no Subsidiary is a Subsidiary of such Unrestricted Subsidiary, (3) on or promptly after the date of designation of such Person as such Unrestricted Subsidiary, such Unrestricted Subsidiary shall enter into a tax sharing agreement with Company that provides (as determined by Company in good faith) for an appropriate allocation of tax liabilities and benefits, and (4) no recourse whatsoever (whether by contract or by operation of law or otherwise) may be had to Company or any of its Subsidiaries or any of their respective properties or assets for any obligations of such Unrestricted Subsidiary except to the extent that the aggregate maximum amount of such recourse constitutes (X) an Investment permitted under subsection 7.3(vi) or (Y) a Guarantee Obligation permitted under subsection 7.4(vii). "Subsidiary Guarantor" means any Domestic Subsidiary that executes and delivers a counterpart of the Subsidiary Guaranty on the Closing Date or from time to time thereafter pursuant to subsection 6.7. "Subsidiary Guaranty" means the Subsidiary Guaranty executed and delivered by existing Domestic Subsidiaries on the Closing Date and to be executed and delivered by additional Domestic Subsidiaries from time to time thereafter in accordance with subsection 6.7A, substantially in the form of Exhibit XVI annexed hereto, as such Subsidiary Guaranty may thereafter be amended, supplemented or otherwise modified from time to time. "Supermajority Class Lenders" means, at any time of determination (i) for the Class of Lenders having Revolving Loan Exposure, Lenders having or holding more than 66-2/3% of the aggregate Revolving Loan Exposure of all Lenders, (ii) for the Class of Lenders having Tranche A Term Loan Exposure, Lenders having or holding more than 38 66-2/3% of the aggregate Tranche A Term Loan Exposure of all Lenders, and (iii) for the Class of Lenders having Tranche B Term Loan Exposure and/or Tranche C Term Loan Exposure, Lenders having or holding more than 66-2/3% of the sum of the aggregate Tranche B Term Loan Exposure of all Lenders plus the aggregate Tranche C Term Loan Exposure of all Lenders. "Swing Line Lender" means BTCo, or any Person serving as a successor Administrative Agent hereunder, in its capacity as Swing Line Lender hereunder. "Swing Line Loan Commitment" means the commitment of Swing Line Lender to make Swing Line Loans to Company pursuant to subsection 2.1A(v). "Swing Line Loans" means the Loans made by Swing Line Lender to Company pursuant to subsection 2.1A(v). "Swing Line Note" means (i) any promissory note of Company issued pursuant to subsection 2.1E to evidence the Swing Line Loans of Swing Line Lender and (ii) any promissory note issued by Company to any successor Administrative Agent and Swing Line Lender pursuant to the last sentence of subsection 9.5B, in each case substantially in the form of Exhibit VIII annexed hereto, as it may be amended, supplemented or otherwise modified from time to time. "Syndication Agent" has the meaning assigned to that term in the introduction to this Agreement. "Tax" or "Taxes" means any present or future tax, levy, impost, duty, charge, fee, deduction or withholding of any nature and whatever called, by whomsoever, on whomsoever and wherever imposed, levied, collected, withheld or assessed; provided that "Tax on the overall net income" of a Person shall be construed as a reference to a tax imposed by the jurisdiction in which that Person is organized or in which that Person's principal office (and/or, in the case of a Lender, its applicable Lending Office) is located or in which that Person (and/or, in the case of a Lender, its applicable Lending Office) is deemed to be doing business on all or part of the net income, profits or gains (whether worldwide, or only insofar as such income, profits or gains are considered to arise in or to relate to a particular jurisdiction, or otherwise) of that Person (and/or, in the case of a Lender, its applicable Lending Office). "Term Loans" means, collectively, the Tranche A Term Loans, the Tranche B Term Loans and the Tranche C Term Loans. "Third Party" means any Person other than Company or any of its Subsidiaries. 39 "Total Utilization of Revolving Loan Commitments" means, as at any date of determination, the sum of (i) the aggregate principal amount of all outstanding Revolving Loans (other than Revolving Loans made for the purpose of repaying any Refunded Swing Line Loans or reimbursing the applicable Issuing Lender for any amount drawn under any Letter of Credit but not yet so applied) plus (ii) the aggregate principal amount of all outstanding Swing Line Loans plus (iii) the Letter of Credit Usage. "Tranche A Lender" means a Lender that has Tranche A Term Loan Exposure; provided, that if the Sterling Loans of such Lender are made or carried by a Sterling Lender Affiliate of such Lender, the term "Tranche A Lender" shall mean the Sterling Lender Affiliate of such Lender. "Tranche A Term Loan Commitment" means the commitment of a Lender to make Tranche A Term Loans to Company and to U.K. Borrowers pursuant to subsection 2.1A(i), and "Tranche A Term Loan Commitments" means such commitments of all Lenders in the aggregate. "Tranche A Term Loan Exposure" means, with respect to any Lender as of any date of determination (i) prior to the funding of the Tranche A Term Loans, that Lender's Tranche A Term Loan Commitment, (ii) after the initial funding of the Tranche A Term Loans but before the date (the "Tranche A Term Loan Commitment Termination Date") that is 35 days after the Closing Date or (if earlier) the date on which the Delayed-Draw Term Loans are made, the outstanding principal amount of the Tranche A Term Loans of that Lender plus that portion of the Tranche A Term Loan Commitment of that Lender that equals that Lender's Pro Rata Share of the DelayedDraw Term Loans requested by Company pursuant to the proviso to the definition thereof, and (iii) after the Tranche A Term Loan Commitment Termination Date, the outstanding principal amount of the Tranche A Term Loans of that Lender. "Tranche A Term Loans" means the Loans made by Lenders to Company and U.K. Borrowers pursuant to subsection 2.1A(i). "Tranche A Term Notes" means any promissory notes of Company or U.K. Borrowers issued pursuant to subsection 2.1E to evidence the Tranche A Term Loans of any Lenders, substantially in the form of Exhibit IV-A annexed hereto in the case of Dollar Loans, and substantially in the form of Exhibit IV-B annexed hereto in the case of Sterling Loans, as any such note may be amended, supplemented or otherwise modified from time to time. "Tranche B Term Loan Commitment" means the commitment of a Lender to make a Tranche B Term Loan to Company pursuant to subsection 2.1A(ii), and "Tranche B Term Loan Commitments" means such commitments of all Lenders in the aggregate. 40 "Tranche B Term Loan Exposure" means, with respect to any Lender as of any date of determination (i) prior to the funding of the Tranche B Term Loans, that Lender's Tranche B Term Loan Commitment and (ii) after the funding of the Tranche B Term Loans, the outstanding principal amount of the Tranche B Term Loan of that Lender. "Tranche B Term Loans" means the Loans made by Lenders to Company pursuant to subsection 2.1A(ii). "Tranche B Term Notes" means any promissory notes of Company issued pursuant to subsection 2.1E to evidence the Tranche B Term Loans of any Lenders, substantially in the form of Exhibit V annexed hereto, as they may be amended, supplemented or otherwise modified from time to time. "Tranche C Term Loan Commitment" means the commitment of a Lender to make a Tranche C Term Loan to Company pursuant to subsection 2.1A(iii), and "Tranche C Term Loan Commitments" means such commitments of all Lenders in the aggregate. "Tranche C Term Loan Exposure" means, with respect to any Lender as of any date of determination (i) prior to the funding of the Tranche C Term Loans, that Lender's Tranche C Term Loan Commitment and (ii) after the funding of the Tranche C Term Loans, the outstanding principal amount of the Tranche C Term Loan of that Lender. "Tranche C Term Loans" means the Loans made by Lenders to Company pursuant to subsection 2.1A(iii). "Tranche C Term Notes" means any promissory notes of Company issued pursuant to subsection 2.1E to evidence the Tranche C Term Loans of any Lenders, substantially in the form of Exhibit VI annexed hereto, as they may be amended, supplemented or otherwise modified from time to time. "Transaction Costs" means the fees, costs and expenses payable by Company in connection with the transactions contemplated by the Loan Documents, the Related Agreements and the amendment of the Existing A/R Facility on or before the Closing Date. "Type" means, as applied to any Loan, whether such Loan is a Tranche A Term Loan, a Tranche B Term Loan, a Tranche C Term Loan, a Revolving Loan or a Swing Line Loan. "UCC" means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect in any applicable jurisdiction. 41 "U.K. Borrower" means each of UK Holding and ACI, and "U.K. Borrowers" means UK Holding and ACI, collectively. "UK Holding" has the meaning assigned to that term in the introduction to this Agreement. "U.K. Qualifying Bank" means a bank, trust or other financial institution which (i) is a "bank" as defined in Section 840A of the Income and Corporation Taxes Act 1988 (or any statutory re-enactment or modification thereof in substantially the same form and context as at June 21, 1996) which is within the charge to United Kingdom corporation tax as regards interest payable or paid to it in respect of Sterling Loans under this Agreement; or (ii) if at any time Section 349 or Section 840A of the Income and Corporation Taxes Act 1988 (or a statutory re-enactment or modification thereof, in substantially the same form and context as at the date hereof) shall not at any time continue in full force and effect, is a bank carrying on through its Sterling Lending Office (as defined in the definition of "Lending Office") for the purposes of this Agreement a bona fide banking business in the United Kingdom which is within the charge to United Kingdom corporation tax as regards any interest payable or paid to it in respect of Sterling Loans under this Agreement. "Unfunded Pension Liability" means, with respect to any Pension Plan, the amount of unfunded benefit liabilities of such Pension Plan as defined in Section 4001(a)(18) of ERISA. "United Kingdom" means the United Kingdom of Great Britain and Northern Ireland. "Unreinvested Asset Sale Proceeds" means that portion, if any, of any Net Asset Sale Proceeds that shall not have been reinvested by Company and its Subsidiaries in the business of Company and its Subsidiaries within (i) two years after the receipt by Company or any of its Subsidiaries of such Net Asset Sale Proceeds, in the case of an Asset Sale consisting of the issuance of capital stock by any of Company's Subsidiaries to a Third Party or (ii) one year after the receipt by Company or any of its Subsidiaries of such Net Asset Sale Proceeds, in the case of any other Asset Sale. "Unrestricted Subsidiary" means any corporate Subsidiary of Company (determined without giving effect to the provisos set forth in the definition of "Subsidiary") that is formed or acquired after the Closing Date and that is designated by Company as an "Unrestricted Subsidiary" as provided in the definition of "Subsidiary". "Voting Stock" means, with respect to any Person, Securities of such Person having ordinary voting power (without regard to the occurrence of any contingency) to vote in the election of directors of such Person. 42 1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations Under Agreement. Except as otherwise expressly provided in this Agreement, all accounting terms not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP. All computations made for purposes of determining any Applicable Leverage Ratio or any amount of Consolidated Excess Cash Flow or for purposes of determining compliance with any of the provisions of Section 7, including any related computations of amounts represented by terms defined in subsection 1.1, shall utilize accounting principles and policies in effect at the time of preparation of, and consistent with those used to prepare, the historical financial statements of Company and its Subsidiaries described in subsection 5.3. Financial statements and other information required to be delivered by Company to Lenders pursuant to clauses (i), (ii) and (ix) of subsection 6.1 shall be prepared in accordance with GAAP as in effect at the time of such preparation; provided that if any of the computations described in the immediately preceding sentence shall at any time utilize accounting principles and policies different from those utilized in preparing the financial statements referred to in this sentence, such financial statements shall be delivered together with reconciliation worksheets showing in reasonable detail the differences that would result in such computations if the accounting principles and policies utilized in preparing such financial statements were utilized in making such computations. 1.3 Other Definitional Provisions and Rules of Construction. A. Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference. B. References to "Sections" and "subsections" shall be to Sections and subsections, respectively, of this Agreement unless otherwise specifically provided. C. The use in any of the Loan Documents of the word "include" or "including", when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not nonlimiting language (such as "without limitation" or "but not limited to" or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter. 43 Section 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS 2.1 Commitments; Making of Loans; the Register; Notes. A. Commitments. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Borrowers herein set forth, each Lender hereby severally agrees to make the Loans described in subsections 2.1A(i), 2.1A(ii), 2.1A(iii) and 2.1A(iv), and Swing Line Lender hereby agrees to make the Loans described in subsection 2.1A(v). (i) Tranche A Term Loans. Each Lender severally agrees (a) to lend to Company and U.K. Borrowers on the Closing Date (in the case of Tranche A Term Loans other than Delayed-Draw Term Loans) and (b) to lend to Company within 35 days after the Closing Date (in the case of Delayed-Draw Term Loans) an aggregate amount not exceeding its Pro Rata Share of the aggregate amount of the Tranche A Term Loan Commitments to be used for the purposes identified in subsection 2.5A. Loans made to U.K. Borrowers shall be made by Lenders in accordance with their respective Pro Rata Shares and shall be denominated and payable in Sterling, and the aggregate amount of such Loans shall not exceed (x) in the case of Loans made to UK Holding, (pounds)12,499,237.85 and (y) in the case of Loans made to ACI, (pounds)21,645,021.65. The original amount of each Lender's Tranche A Term Loan Commitment is set forth opposite its name on Schedule 2.1 annexed hereto and the aggregate amount of the Tranche A Term Loan Commitments (1) to make Dollar Loans is $294,000,000 and (2) to make Sterling Loans is (pounds)34,144,259.50. Each Lender's Tranche A Term Loan Commitment shall expire immediately and without further action on June 30, 1997 if the initial Tranche A Term Loans are not made on or before that date, and each Lender's Tranche A Term Loan Commitment in respect of the Delayed-Draw Term Loans shall expire immediately and without further action on the date that is 35 days after the Closing Date in the event the Delayed-Draw Term Loans are not made on or before that date. Company may make only two borrowings, and each U.K. Borrower may make only one borrowing, under the Tranche A Term Loan Commitments. Amounts borrowed under this subsection 2.1A(i) and subsequently repaid or prepaid may not be reborrowed. (ii) Tranche B Term Loans. Each Lender severally agrees to lend to Company on the Closing Date an amount not exceeding its Pro Rata Share of the aggregate amount of the Tranche B Term Loan Commitments to be used for the purposes identified in subsection 2.5A. The original amount of each Lender's Tranche B Term Loan Commitment is set forth opposite its name on Schedule 2.1 annexed hereto and the aggregate amount of the Tranche B Term Loan Commitments is $200,000,000. Each Lender's Tranche B Term Loan Commitment shall expire immediately and without further action on June 30, 1997 if the Tranche B Term Loans are not made on or before that date. Company may make only one 44 borrowing under the Tranche B Term Loan Commitments. Amounts borrowed under this subsection 2.1A(ii) and subsequently repaid or prepaid may not be reborrowed. (iii) Tranche C Term Loans. Each Lender severally agrees to lend to Company on the Closing Date an amount not exceeding its Pro Rata Share of the aggregate amount of the Tranche C Term Loan Commitments to be used for the purposes identified in subsection 2.5A. The original amount of each Lender's Tranche C Term Loan Commitment is set forth opposite its name on Schedule 2.1 annexed hereto and the aggregate amount of the Tranche C Term Loan Commitments is $200,000,000. Each Lender's Tranche C Term Loan Commitment shall expire immediately and without further action on June 30, 1997 if the Tranche C Term Loans are not made on or before that date. Company may make only one borrowing under the Tranche C Term Loan Commitments. Amounts borrowed under this subsection 2.1A(iii) and subsequently repaid or prepaid may not be reborrowed. (iv) Revolving Loans. Each Lender severally agrees, subject to the limitations set forth below with respect to the maximum amount of Revolving Loans permitted to be outstanding from time to time, to lend to Company from time to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date an aggregate amount not exceeding its Pro Rata Share of the aggregate amount of the Revolving Loan Commitments to be used for the purposes identified in subsection 2.5B. The original amount of each Lender's Revolving Loan Commitment is set forth opposite its name on Schedule 2.1 annexed hereto and the aggregate original amount of the Revolving Loan Commitments is $150,000,000; provided that the Revolving Loan Commitments of Lenders shall be adjusted to give effect to any assignments of the Revolving Loan Commitments pursuant to subsection 10.1B; and provided, further that the amount of the Revolving Loan Commitments shall be reduced from time to time by the amount of any reductions thereto made pursuant to subsection 2.4B(ii). Each Lender's Revolving Loan Commitment shall expire on the Revolving Loan Commitment Termination Date and all Revolving Loans and all other amounts owed hereunder with respect to the Revolving Loans and the Revolving Loan Commitments shall be paid in full no later than that date; provided that each Lender's Revolving Loan Commitment shall expire immediately and without further action on June 30, 1997 if the initial Term Loans are not made on or before that date. Amounts borrowed under this subsection 2.1A(iv) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, the Revolving Loans and the Revolving Loan Commitments shall be subject to the 45 limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect. (v) Swing Line Loans. Swing Line Lender hereby agrees, subject to the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Company from time to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Company in an aggregate amount not exceeding the amount of the Swing Line Loan Commitment to be used for the purposes identified in subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans and Swing Line Lender's Pro Rata Share of the Letter of Credit Usage then in effect, may exceed Swing Line Lender's Revolving Loan Commitment. The original amount of the Swing Line Loan Commitment is $10,000,000; provided that any reduction of the Revolving Loan Commitments made pursuant to subsection 2.4B(ii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of the Swing Line Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to the amount of the Revolving Loan Commitments, as so reduced, without any further action on the part of Company, Administrative Agent or Swing Line Lender. The Swing Line Loan Commitment shall expire on the Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date; provided that the Swing Line Loan Commitment shall expire immediately and without further action on June 30, 1997 if the initial Term Loans are not made on or before that date. Amounts borrowed under this subsection 2.1A(v) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment shall be subject to the limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect. With respect to any Swing Line Loans which have not been voluntarily prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender may, at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to Company), no later than 11:00 A.M. (New York City time) on the first Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Company) requesting Lenders to make Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loans (the "Refunded Swing Line Loans") outstanding on the date such notice is given which Swing Line 46 Lender requests Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds of such Revolving Loans made by Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Company) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note, if any, of Swing Line Lender but shall instead constitute part of Swing Line Lender's outstanding Revolving Loans and shall be due under the Revolving Note, if any, of Swing Line Lender. If any portion of any such amount paid (or deemed to be paid) to Swing Line Lender should be recovered by or on behalf of Company from Swing Line Lender in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be ratably shared among all Lenders in the manner contemplated by subsection 10.5. If for any reason the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, each Lender shall be deemed to, and hereby agrees to, have purchased a participation in such outstanding Swing Line Loans in an amount equal to its Pro Rata Share (calculated immediately prior to such termination of the Revolving Loan Commitments) of the unpaid amount of such Swing Line Loans together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender, each Lender shall deliver to Swing Line Lender an amount equal to its respective participation in same day funds at the Funding and Payment Office. In order to further evidence such participation (and without prejudice to the effectiveness of the participation provisions set forth above), each Lender agrees to enter into a separate participation agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to such Lender and Swing Line Lender. In the event any Lender fails to make available to Swing Line Lender the amount of such Lender's participation as provided in this paragraph, Swing Line Lender shall be entitled to recover such amount on demand from such Lender together with interest thereon at the Federal Funds Effective Rate for three Business Days and thereafter at the Base Rate. In the event Swing Line Lender receives a payment of any amount in which other Lenders have purchased participations as provided in this paragraph, Swing Line Lender shall promptly distribute to each such other Lender its Pro Rata Share of such payment. Anything contained herein to the contrary notwithstanding, each Lender's obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to the second preceding paragraph and each Lender's obligation to purchase a participation in any unpaid Swing Line Loans pursuant to 47 the immediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, including (a) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against Swing Line Lender, Company or any other Person for any reason whatsoever; (b) the occurrence or continuation of an Event of Default or a Potential Event of Default; (c) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of Company or any of its Subsidiaries; (d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing; provided that such obligations of each Lender are subject to the condition that (X) Swing Line Lender believed in good faith that all conditions under Section 4 to the making of the applicable Refunded Swing Line Loans or other unpaid Swing Line Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made or (Y) the satisfaction of any such condition not satisfied had been waived in accordance with subsection 10.6 prior to or at the time such Refunded Swing Line Loans or other unpaid Swing Line Loans were made. B. Borrowing Mechanics. Tranche A Term Loans (other than Sterling Loans), Tranche B Term Loans or Tranche C Term Loans made on any Funding Date as Base Rate Loans or as LIBOR Loans with a particular Interest Period shall be in an aggregate minimum amount of $5,000,000 and integral multiples of $500,000 in excess of that amount, and Sterling Loans made on the Closing Date with a particular Interest Period shall be in an aggregate minimum amount of (pounds)5,000,000 and integral multiples of (pounds)500,000 in excess of that amount; provided, that no more than one Sterling Loan of each U.K. Borrower may be in an aggregate minimum amount of (pounds)5,000,000 and any amount in excess thereof. Revolving Loans (other than Revolving Loans made pursuant to a request by Swing Line Lender pursuant to subsection 2.1A(v) for the purpose of repaying any Refunded Swing Line Loans or Revolving Loans made pursuant to subsection 3.3B for the purpose of reimbursing any Issuing Lender for the amount of a drawing under a Letter of Credit issued by it) made on any Funding Date shall be in an aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in excess of that amount. Swing Line Loans made on any Funding Date shall be in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in excess of that amount. Whenever a Borrower desires that Lenders make Term Loans or Revolving Loans to such Borrower it shall deliver to Administrative Agent a Notice of Borrowing no later than 11:00 A.M. (New York City time) at least three Business Days in advance of the proposed Funding Date (in the case of a LIBOR Loan) or at least one Business Day in advance of the proposed Funding Date (in the case of a Base Rate Loan). Whenever Company desires that Swing Line Lender make a Swing Line Loan, it shall deliver to Administrative Agent a Notice of Borrowing no later than 1:00 P.M. (New York City time) on the proposed Funding Date. The Notice of Borrowing shall specify (i) the proposed Funding Date (which shall be a Business Day), (ii) the amount and type of Loans requested, (iii) in the case of Swing Line Loans and any Loans (other than Sterling 48 Loans) made on the Closing Date, that such Loans shall be Base Rate Loans, (iv) in the case of Delayed-Draw Term Loans and Revolving Loans not made on the Closing Date, whether such Loans shall be Base Rate Loans or LIBOR Loans, and (v) in the case of any Loans requested to be made as LIBOR Loans, the initial Interest Period requested therefor. Term Loans and Revolving Loans may be continued as or converted into Base Rate Loans and LIBOR Loans in the manner provided in subsection 2.2D; provided, that Sterling Loans may not be converted into Base Rate Loans. In lieu of delivering the above-described Notice of Borrowing, a Borrower may give Administrative Agent telephonic notice by the required time of any proposed borrowing under this subsection 2.1B; provided that such notice shall be promptly confirmed in writing by delivery of a Notice of Borrowing to Administrative Agent on or before the applicable Funding Date. Neither Administrative Agent nor any Lender shall incur any liability to any Borrower in acting upon any telephonic notice referred to above that Administrative Agent believes in good faith to have been given by a duly authorized officer or other person authorized to borrow on behalf of such Borrower or for otherwise acting in good faith under this subsection 2.1B, and upon funding of Loans by Lenders in accordance with this Agreement pursuant to any such telephonic notice the applicable Borrower shall have effected Loans hereunder. Each Borrower shall notify Administrative Agent prior to the funding of any Loans in the event that any of the matters to which such Borrower is required to certify in the applicable Notice of Borrowing is no longer true and correct as of the applicable Funding Date, and the acceptance by such Borrower of the proceeds of any Loans shall constitute a re-certification by Borrowers, as of the applicable Funding Date, as to matters to which Borrowers are required to certify in the applicable Notice of Borrowing. C. Disbursement of Funds. All Term Loans and Revolving Loans under this Agreement shall be made by Lenders simultaneously and proportionately to their respective Pro Rata Shares, it being understood that no Lender shall be responsible for any default by any other Lender in that other Lender's obligation to make a Loan requested hereunder nor shall the Commitment of any Lender to make the particular Type of Loan requested be increased or decreased as a result of a default by any other Lender in that other Lender's obligation to make a Loan requested hereunder. Promptly after receipt by Administrative Agent of a Notice of Borrowing pursuant to subsection 2.1B (or telephonic notice in lieu thereof), Administrative Agent shall notify each Lender or Swing Line Lender, as the case may be, of the proposed borrowing. Each Lender shall make the amount of its Loan available to Administrative Agent in the Applicable Currency not later than 1:00 P.M. (New York City time) on the applicable Funding Date in the case of Loans other than Sterling Loans, and not later than 11:00 A.M. (London time) on the applicable Funding Date in the case of Sterling Loans, and Swing Line Lender shall make the amount of its Swing Line Loan available to Administrative Agent not later than 2:00 P.M.(New York City time) on the applicable Funding Date, in each case in same day funds in Dollars (or Sterling, in the case of Sterling Loans), at the Funding and Payment 49 Office for such Loans. Except as provided in subsection 2.1A(v) or subsection 3.3B with respect to Revolving Loans used to repay Refunded Swing Line Loans or to reimburse any Issuing Lender for the amount of a drawing under a Letter of Credit issued by it, upon satisfaction or waiver of the conditions precedent specified in subsections 4.1 (in the case of Loans made on the Closing Date) and 4.2 (in the case of all Loans), Administrative Agent shall make the proceeds of such Loans available to the applicable Borrower on the applicable Funding Date by causing an amount of same day funds in Dollars (or Sterling, in the case of Sterling Loans) equal to the proceeds of all such Loans received by Administrative Agent from Lenders or Swing Line Lender, as the case may be, to be credited to the account of the applicable Borrower at the Funding and Payment Office for such Loans. Unless Administrative Agent shall have been notified by any Lender prior to the Funding Date for any Loans that such Lender does not intend to make available to Administrative Agent the amount of such Lender's Loan requested on such Funding Date, Administrative Agent may assume that such Lender has made such amount available to Administrative Agent on such Funding Date and Administrative Agent may, in its sole discretion, but shall not be obligated to, make available to the applicable Borrower a corresponding amount in the Applicable Currency on such Funding Date. If such corresponding amount is not in fact made available to Administrative Agent by such Lender, Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon, for each day from such Funding Date until the date such amount is paid to Administrative Agent in the Applicable Currency, (i) for amounts in Dollars, at the Federal Funds Effective Rate for three Business Days and thereafter at the Base Rate or (ii) for amounts in Sterling, at Administrative Agent's cost of funds as determined by Administrative Agent and notified to such Lender for amounts in Sterling. If such Lender does not pay such corresponding amount forthwith upon Administrative Agent's demand therefor, Administrative Agent shall promptly notify the applicable Borrower, and the applicable Borrower shall immediately pay such corresponding amount to Administrative Agent together with interest thereon, all in the Applicable Currency, for each day from such Funding Date until the date such amount is paid to Administrative Agent, at the rate payable under this Agreement for Base Rate Loans in the case of Dollar Loans and at the rate otherwise payable pursuant to subsection 2.2A in the case of Sterling Loans. Nothing in this subsection 2.1C shall be deemed to relieve any Lender from its obligation to fulfill its Commitments hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by such Lender hereunder. D. The Register. (i) Administrative Agent shall maintain, at its address referred to in subsection 10.7, a register for the recordation of the names and addresses of Lenders and the Commitments and Loans (whether or not separately evidenced by one or more Notes) of each Lender from time to time (the "Register"). The 50 Register shall be available for inspection by Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice. (ii) Administrative Agent shall record in the Register the Tranche A Term Loan Commitment, Tranche B Term Loan Commitment, Tranche C Term Loan Commitment and Revolving Loan Commitment and the Tranche A Term Loans, Tranche B Term Loan, Tranche C Term Loan and Revolving Loans from time to time of each Lender, the Swing Line Loan Commitment and the Swing Line Loans from time to time of Swing Line Lender, and each repayment or prepayment in respect of the principal amount of the Tranche A Term Loans, Tranche B Term Loan, Tranche C Term Loan or Revolving Loans of each Lender or the Swing Line Loans of Swing Line Lender. Any such recordation shall be conclusive and binding on Borrowers and each Lender, absent clearly demonstrable error; provided that failure to make any such recordation, or any error in such recordation, shall not affect any Lender's Commitments or Borrowers' Obligations in respect of any applicable Loans. (iii) Each Lender shall record on its internal records (including any Notes held by such Lender) the amount of the Tranche B Term Loan and the Tranche C Term Loan and each Tranche A Term Loan and Revolving Loan made by it and each payment in respect thereof. Any such recordation shall be conclusive and binding on Borrowers, absent clearly demonstrable error; provided that failure to make any such recordation, or any error in such recordation, shall not affect any Lender's Commitments or any Borrower's Obligations in respect of any applicable Loans; and provided, further that in the event of any inconsistency between the Register and any Lender's records, the recordations in the Register shall govern. (iv) Borrowers, Administrative Agent and Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the corresponding Commitments and Loans listed therein for all purposes hereof, and no assignment or transfer of any such Commitment or Loan shall be effective, in each case unless and until an Assignment Agreement effecting the assignment or transfer thereof shall have been accepted by Administrative Agent and recorded in the Register as provided in subsection 10.1B(ii). Prior to such recordation, all amounts owed with respect to the applicable Commitment or Loan shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Commitments or Loans. (v) Each Borrower hereby designates BTCo to serve as its agent solely for purposes of maintaining the Register as provided in this subsection 2.1D, and Borrowers hereby agree that, to the extent BTCo serves in such capacity, BTCo 51 and its officers, directors, employees, agents and affiliates shall constitute Indemnitees for all purposes under subsection 10.3. E. Optional Notes. Upon the request of any Lender made through the Administrative Agent at least two Business Days prior to the Closing Date or at any time after the Closing Date (in the case of Dollar Loans, solely to facilitate the pledge or assignment of such Lender's applicable Loans pursuant to subsection 10.1D), the applicable Borrower shall execute and deliver to such Lender (and/or, if applicable and if so specified in such notice, to any Person who is an assignee of such Lender pursuant to subsection 10.1) on the Closing Date (or, if such notice is delivered after the Closing Date, promptly after such Borrower's receipt of such notice) a promissory note or promissory notes to evidence such Lender's Tranche A Term Loans, Tranche B Term Loan, Tranche C Term Loan, Revolving Loans or Swing Line Loans, as the case may be, substantially in the form of Exhibit IV-A or Exhibit IV-B, Exhibit V, Exhibit VI, Exhibit VII or Exhibit VIII annexed hereto, respectively, with appropriate insertions. F. Company as Agent for U.K. Borrowers. Each U.K. Borrower by its execution of this Agreement irrevocably authorizes Company to give and receive all notices and instructions, to take all actions and make such agreements expressed to be capable of being given, received or taken by Company in this Agreement and the other Loan Documents notwithstanding that they may affect such U.K. Borrower, and each U.K. Borrower shall, as regards Administrative Agent and each Lender, be bound thereby as though such Borrower itself had given or received such notice, taken such action or made such agreement. G. Booking of Sterling Loans; Sterling Lender Affiliates. Each Lender hereby agrees to book the Sterling Loans of such Lender in such a manner as to cause such Lender to be a U.K. Qualifying Bank with respect to such Sterling Loans. In furtherance of the foregoing, such Lender may agree with any Affiliate of such Lender (such Affiliate, the "Sterling Lender Affiliate" of such Lender) that such Affiliate shall make or carry such Sterling Loans for its own account and such Sterling Lender Affiliate shall have, as against Company and the applicable Borrower, all the rights of a Lender with respect to such Sterling Loans as a third party beneficiary hereunder. 2.2 Interest on the Loans. A. Rate of Interest. Subject to the provisions of subsections 2.6 and 2.7, each Term Loan and each Revolving Loan shall bear interest on the unpaid principal amount thereof from the date made to maturity (whether by acceleration or otherwise) at a rate determined by reference to the Base Rate (in the case of all Loans other than Sterling Loans) or LIBOR. Subject to the provisions of subsection 2.7, each Swing Line Loan shall bear interest on the unpaid principal amount thereof from the date made through maturity (whether by acceleration or otherwise) at a rate determined by reference to the Base Rate. The applicable basis for determining the rate of interest with respect to any 52 Term Loan or any Revolving Loan shall be selected by Company initially at the time a Notice of Borrowing is given with respect to such Loan pursuant to subsection 2.1B, and the basis for determining the interest rate with respect to any Term Loan or any Revolving Loan may be changed from time to time pursuant to subsection 2.2D. Subject to the last proviso to the first paragraph of subsection 2.2D, if on any day a Term Loan or Revolving Loan is outstanding with respect to which notice has not been delivered to Administrative Agent in accordance with the terms of this Agreement specifying the applicable basis for determining the rate of interest, then for that day that Loan shall bear interest determined by reference to the Base Rate. (i) Subject to the provisions of subsections 2.2E and 2.7, the Tranche A Term Loans and the Revolving Loans shall bear interest through maturity as follows: (a) if a Base Rate Loan, then at the sum of the Base Rate plus the Applicable Tranche A Base Rate Margin; or (b) if a LIBOR Loan, then at the sum of LIBOR plus the Applicable Tranche A LIBOR Margin plus, in the case of Sterling Loans, any Mandatory Liquid Asset Costs incurred by the applicable Lender in respect of such LIBOR Loan from time to time. (ii) Subject to the provisions of subsections 2.2E and 2.7, the Tranche B Term Loans shall bear interest through maturity as follows: (a) if a Base Rate Loan, then at the sum of the Base Rate plus the Applicable Tranche B Base Rate Margin; or (b) if a LIBOR Loan, then at the sum of LIBOR plus the Applicable Tranche B LIBOR Margin. (iii) Subject to the provisions of subsections 2.2E and 2.7, the Tranche C Term Loans shall bear interest through maturity as follows: (a) if a Base Rate Loan, then at the sum of the Base Rate plus the Applicable Tranche C Base Rate Margin; or (b) if a LIBOR Loan, then at the sum of LIBOR plus the Applicable Tranche C LIBOR Margin. (iv) Subject to the provisions of subsections 2.2E and 2.7, the Swing Line Loans shall bear interest through maturity at the sum of the Base Rate plus the Applicable Tranche A Base Rate Margin minus the Applicable Commitment Fee Percentage. 53 B. Interest Periods. In connection with each LIBOR Loan, the applicable Borrower may, pursuant to the applicable Notice of Borrowing or Notice of Conversion/Continuation, as the case may be, select an interest period (each an "Interest Period") to be applicable to such Loan, which Interest Period shall be, at such Borrower's option, either a one, two, three or six month period or, in the case of Dollar Loans only, if deposits in the interbank Eurodollar market are generally available for such period to all Lenders making the applicable Loans (as determined by such Lenders in good faith based on prevailing market conditions), a nine or twelve month period; provided that: (i) the initial Interest Period for any LIBOR Loan shall commence on the Funding Date in respect of such Loan, in the case of a Loan initially made as a LIBOR Loan, or on the date specified in the applicable Notice of Conversion/Continuation, in the case of a Loan converted to a LIBOR Loan; (ii) in the case of immediately successive Interest Periods applicable to a LIBOR Loan continued as such pursuant to a Notice of Conversion/Continuation, each successive Interest Period shall commence on the day on which the next preceding Interest Period expires; (iii) if an Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day; provided that, if any Interest Period would otherwise expire on a day that is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the next preceding Business Day; (iv) 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, subject to clauses (v) and (vi) of this subsection 2.2B, end on the last Business Day of a calendar month; (v) no Interest Period with respect to any portion of the Tranche A Term Loans shall extend beyond the seventh anniversary of the Closing Date, no Interest Period with respect to any portion of the Tranche B Term Loans shall extend beyond the eighth anniversary of the Closing Date, no Interest Period with respect to any portion of the Tranche C Term Loans shall extend beyond the ninth anniversary of the Closing Date, and no Interest Period with respect to any portion of the Revolving Loans shall extend beyond the Revolving Loan Commitment Termination Date; (vi) no Interest Period with respect to any portion of the Tranche A Term Loans, Tranche B Term Loans or Tranche C Term Loans shall extend beyond a date on which the applicable Borrower is required to make a scheduled payment of principal of the Tranche A Term Loans, Tranche B Term Loans or Tranche C 54 Term Loans, as the case may be, unless the sum of (a) the aggregate principal amount of Tranche A Term Loans, Tranche B Term Loans or Tranche C Term Loans, as the case may be, that are Base Rate Loans plus (b) the aggregate principal amount of Tranche A Term Loans, Tranche B Term Loans or Tranche C Term Loans, as the case may be, that are LIBOR Loans with Interest Periods expiring on or before such date equals or exceeds the principal amount required to be paid on the Tranche A Term Loans, Tranche B Term Loans or Tranche C Term Loans, as the case may be, on such date; (vii) there shall be no more than 20 Interest Periods outstanding at any time; and (viii) in the event the applicable Borrower fails to specify an Interest Period for any LIBOR Loan in the applicable Notice of Borrowing or Notice of Conversion/Continuation, such Borrower shall be deemed to have selected an Interest Period of one month. C. Interest Payments. Subject to the provisions of subsection 2.2E, interest on each Loan shall be payable in arrears on and to each Interest Payment Date applicable to that Loan, upon any prepayment of that Loan (to the extent accrued on the amount being prepaid) and at maturity (including final maturity); provided that in the event any Swing Line Loans or any Revolving Loans that are Base Rate Loans are prepaid pursuant to subsection 2.4B, interest accrued on such Swing Line Loans or Revolving Loans through the date of such prepayment shall be payable on the next succeeding Interest Payment Date applicable to Base Rate Loans (or, if earlier, at final maturity). D. Conversion or Continuation. Subject to the provisions of subsection 2.6, (i) Company shall have the option to convert at any time all or any part of its outstanding Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans or Revolving Loans equal to $5,000,000 and integral multiples of $500,000 in excess of that amount from Loans bearing interest at a rate determined by reference to one basis to Loans bearing interest at a rate determined by reference to an alternative basis and (ii) upon the expiration of any Interest Period applicable to a LIBOR Loan, the applicable Borrower shall have the option to continue as a LIBOR Loan all or any portion of such Loan equal to $5,000,000 and integral multiples of $500,000 in excess of that amount (or, in the case of Sterling Loans, equal to (pounds)5,000,000 and integral multiples of (pounds)500,000 in excess of that amount; provided that no more than one Sterling Loan of each U.K. Borrower outstanding at any time may be in an aggregate minimum amount equal to (pounds)5,000,000 and any amount in excess thereof); provided, however, that if, upon the expiration of any Interest Period applicable to any LIBOR Loan, the applicable Borrower shall have failed to give a Notice of Conversion/Continuation with respect to such LIBOR Loan in accordance with this subsection 2.2D, such Borrower shall be deemed to have given a timely Notice of Conversion/Continuation electing to continue such LIBOR Loan as a LIBOR Loan with an Interest Period of one month. 55 The applicable Borrower shall deliver a Notice of Conversion/Continuation to Administrative Agent no later than 11:00 A.M. (New York City time) at least one Business Day in advance of the proposed conversion date (in the case of a conversion to a Base Rate Loan) and at least three Business Days in advance of the proposed conversion/continuation date (in the case of a conversion to, or a continuation of, a LIBOR Loan), with a copy to the Sterling Notice Office, in the case of Sterling Loans. A Notice of Conversion/Continuation shall specify (i) the proposed conversion/continuation date (which shall be a Business Day), (ii) the amount and type of the Loan to be converted/continued, (iii) the nature of the proposed conversion/continuation, (iv) in the case of a conversion to, or a continuation of, a LIBOR Loan, the requested Interest Period, and (v) in the case of a conversion to, or a continuation of, a LIBOR Loan, that no Potential Event of Default or Event of Default has occurred and is continuing. In lieu of delivering the above-described Notice of Conversion/Continuation, the applicable Borrower may give Administrative Agent telephonic notice by the required time of any proposed conversion/continuation under this subsection 2.2D; provided that such notice shall be promptly confirmed in writing by delivery of a Notice of Conversion/Continuation to Administrative Agent, with a copy to the Sterling Notice Office, in the case of Sterling Loans, on or before the proposed conversion/continuation date. Upon receipt of written or telephonic notice of any proposed conversion/continuation under this subsection 2.2D, Administrative Agent shall promptly transmit such notice by telefacsimile or telephone to each Lender. Neither Administrative Agent nor any Lender shall incur any liability to any Borrower in acting upon any telephonic notice referred to above that Administrative Agent believes in good faith to have been given by a duly authorized officer or other person authorized to act on behalf of such Borrower or for otherwise acting in good faith under this subsection 2.2D, and upon conversion or continuation of the applicable basis for determining the interest rate with respect to any Loans in accordance with this Agreement pursuant to any such telephonic notice the applicable Borrower shall have effected a conversion or continuation, as the case may be, hereunder. Except as otherwise provided in subsections 2.6B, 2.6C, 2.6F and 2.6G, a Notice of Conversion/Continuation for conversion to, or continuation of, a LIBOR Loan (or telephonic notice in lieu thereof) shall be irrevocable on and after the related Interest Rate Determination Date, and the applicable Borrower shall be bound to effect a conversion or continuation in accordance therewith. E. Post-Maturity Interest. Any principal payments on the Loans not paid when due and, to the extent permitted by applicable law, any interest payments on the Loans or any fees or other amounts owed hereunder not paid when due, in each case whether at stated maturity, by notice of prepayment, by acceleration or otherwise, shall thereafter bear interest (including post-petition interest in any proceeding under the Bankruptcy Code or other applicable bankruptcy laws) payable on demand at a rate which is 2% per annum in excess of the interest rate otherwise payable under this Agreement for 56 Base Rate Loans of the applicable Type (any such fees and other amounts being deemed for such purposes to bear interest on the same basis as Revolving Loans) or, in the case of Sterling Loans, for LIBOR Loans having consecutive Interest Periods of one month, commencing on the date of such non-payment. Payment or acceptance of the increased rates of interest provided for in this subsection 2.2E is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of Administrative Agent or any Lender. F. Computation of Interest. Interest on the Loans shall be computed (i) in the case of Base Rate Loans bearing interest at a rate determined by reference to the Prime Rate, on the basis of a 365-day or 366-day year, as the case may be, (ii) in the case of Sterling Loans, on the basis of a 365-day year, and (iii) in the case of other LIBOR Loans and Base Rate Loans bearing interest at a rate determined by reference to the Federal Funds Effective Rate, on the basis of a 360-day year, in each case for the actual number of days elapsed in the period during which it accrues. In computing interest on any Loan, the date of the making of such Loan or the first day of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted from a LIBOR Loan, the date of conversion of such LIBOR Loan to such Base Rate Loan, as the case may be, shall be included, and the date of payment of such Loan or the expiration date of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted to a LIBOR Loan, the date of conversion of such Base Rate Loan to such LIBOR Loan, as the case may be, shall be excluded; provided that if a Loan is repaid on the same day on which it is made, one day's interest shall be paid on that Loan. 2.3 Fees. A. Commitment Fees. Company agrees to pay to Administrative Agent, for distribution to each Lender in proportion to that Lender's Pro Rata Share, commitment fees for the period from and including the Closing Date to and excluding the Revolving Loan Commitment Termination Date equal to the sum of (i) the average of the daily excess of the Revolving Loan Commitments over the aggregate principal amount of outstanding Revolving Loans (but not any outstanding Swing Line Loans or the Letter of Credit Usage) and (ii) any undrawn portion of the Tranche A Term Loan Commitments that is available for borrowing as Delayed-Draw Term Loans multiplied by the Applicable Commitment Fee Percentage, such commitment fees to be calculated on the basis of a 365-day or 366-day year, as the case may be, and the actual number of days elapsed and to be payable quarterly in arrears on March 31, June 30, September 30 and December 31 of each year, commencing on the first such date to occur after the Closing Date, and on the Revolving Loan Commitment Termination Date. B. Other Fees. Company agrees to pay to Administrative Agent, Syndication Agent and Documentation Agent such other fees in the amounts and at the times 57 separately agreed upon between Company and Administrative Agent, Syndication Agent and Documentation Agent, as the case may be. 2.4 Repayments, Prepayments and Reductions in Revolving Loan Commitments; General Provisions Regarding Payments; Application of Proceeds of Collateral and Payments Under the Guaranties. A. Scheduled Payments of Term Loans. (i) Scheduled Payments of Tranche A Term Loans. Each Borrower shall make principal payments on the Tranche A Term Loans made to such Borrower in installments on the second anniversary of the Closing Date and on each subsequent anniversary of the Closing Date until the Tranche A Term Loans are paid in full, each such installment to be in an amount in Dollars or Sterling, as applicable, equal to the corresponding percentages set forth below of the original principal amount of the Tranche A Term Loans (including, in the case of Company, the Delayed-Draw Term Loans) made to such Borrower: Percentage of Original Principal Amount Anniversary of Closing Date of Tranche A Term Loans --------------------------- ----------------------- Second 7.15% Third 10.71% Fourth 13.57% Fifth 17.14% Sixth 22.86% Seventh 28.57% ------- TOTAL 100.00% ; provided that the scheduled installments of principal of the Tranche A Term Loans set forth above shall be reduced in connection with any voluntary or mandatory prepayments of the Tranche A Term Loans in accordance with subsection 2.4B(iv); and provided, further that the Tranche A Term Loans and all other amounts owed hereunder with respect to the Tranche A Term Loans shall be paid in full no later than the seventh anniversary of the Closing Date, and the final installment payable by each Borrower in respect of the Tranche A Term Loans on such date shall be in an amount, if such amount is different from that specified above, sufficient to repay all amounts owing by Borrowers under this Agreement with respect to the Tranche A Term Loans. (ii) Scheduled Payments of Tranche B Term Loans. Company shall make principal payments on the Tranche B Term Loans in installments on the 58 second anniversary of the Closing Date and on each subsequent anniversary of the Closing Date until the Tranche B Term Loans are paid in full, each such installment to be in the correlative amount set forth below: Scheduled Repayment Anniversary of Closing Date of Tranche B Term Loans --------------------------- ----------------------- Second $500,000 Third $500,000 Fourth $500,000 Fifth $500,000 Sixth $500,000 Seventh $500,000 Eighth $197,000,000 ------------ TOTAL $200,000,000 ; provided that the scheduled installments of principal of the Tranche B Term Loans set forth above shall be reduced in connection with any voluntary or mandatory prepayments of the Tranche B Term Loans in accordance with subsection 2.4B(iv); and provided, further that the Tranche B Term Loans and all other amounts owed hereunder with respect to the Tranche B Term Loans shall be paid in full no later than the eighth anniversary of the Closing Date, and the final installment payable by Company in respect of the Tranche B Term Loans on such date shall be in an amount, if such amount is different from that specified above, sufficient to repay all amounts owing by Company under this Agreement with respect to the Tranche B Term Loans. (iii) Scheduled Payments of Tranche C Term Loans. Company shall make principal payments on the Tranche C Term Loans in installments on the second anniversary of the Closing Date and on each subsequent anniversary of the Closing Date until the Tranche C Term Loans are paid in full, each such installment to be in the correlative amount set forth below: 59 Scheduled Repayment Anniversary of Closing Date of Tranche C Term Loans --------------------------- ----------------------- Second $500,000 Third $500,000 Fourth $500,000 Fifth $500,000 Sixth $500,000 Seventh $500,000 Eighth $500,000 Ninth $196,500,000 ------------ TOTAL $200,000,000 ; provided that the scheduled installments of principal of the Tranche C Term Loans set forth above shall be reduced in connection with any voluntary or mandatory prepayments of the Tranche C Term Loans in accordance with subsection 2.4B(iv); and provided, further that the Tranche C Term Loans and all other amounts owed hereunder with respect to the Tranche C Term Loans shall be paid in full no later than the ninth anniversary of the Closing Date, and the final installment payable by Company in respect of the Tranche C Term Loans on such date shall be in an amount, if such amount is different from that specified above, sufficient to repay all amounts owing by Company under this Agreement with respect to the Tranche C Term Loans. B. Prepayments and Reductions in Revolving Loan Commitments. (i) Voluntary Prepayments. Company may, upon written or telephonic notice to Administrative Agent at or prior to 1:00 P.M. (New York City time) on the date of prepayment, which notice, if telephonic, shall be promptly confirmed in writing, at any time and from time to time prepay any Swing Line Loan on any Business Day in whole or in part in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in excess of that amount. Any Borrower may, upon not less than one Business Day's prior written or telephonic notice, in the case of Base Rate Loans, and three Business Days' prior written or telephonic notice, in the case of LIBOR Loans, in each case given to Administrative Agent by 12:00 Noon (New York City time) on the date required and, if given by telephone, promptly confirmed in writing to Administrative Agent (which original written or telephonic notice Administrative Agent will promptly transmit by telefacsimile or telephone to each Lender), at any time and from time to time prepay any of such Borrower's Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans or Revolving Loans on any Business Day in whole or in part in an aggregate minimum amount of $5,000,000 and integral multiples of $500,000 in excess of that amount (or, in the case of Sterling Loans, equal to (pounds)5,000,000 and integral 60 multiples of (pounds)500,000 in excess of that amount). Notice of prepayment having been given as aforesaid, the principal amount of the Loans specified in such notice shall become due and payable on the prepayment date specified therein. Any such voluntary prepayment shall be applied as specified in subsection 2.4B(iv). (ii) Voluntary Reductions of Revolving Loan Commitments. Company may, upon not less than three Business Days' prior written or telephonic notice confirmed in writing to Administrative Agent (which original written or telephonic notice Administrative Agent will promptly transmit by telefacsimile or telephone to each Lender), at any time and from time to time terminate in whole or permanently reduce in part, without premium or penalty, the Revolving Loan Commitments in an amount up to the amount by which the Revolving Loan Commitments exceed the Total Utilization of Revolving Loan Commitments at the time of such proposed termination or reduction; provided that any such partial reduction of the Revolving Loan Commitments shall be in an aggregate minimum amount of $1,000,000 and integral multiples of $500,000 in excess of that amount. Company's notice to Administrative Agent shall designate the date (which shall be a Business Day) of such termination or reduction and the amount of any partial reduction, and such termination or reduction of the Revolving Loan Commitments shall be effective on the date specified in Company's notice and shall reduce the Revolving Loan Commitment of each Lender proportionately to its Pro Rata Share. (iii) Mandatory Prepayments. Subject to the provisions of subsections 2.4B(iv)(d), the Loans shall be prepaid in the amounts and under the circumstances set forth below, all such prepayments to be applied as set forth below or as more specifically provided in subsection 2.4B(iv): (a) Prepayments From Net Asset Sale Proceeds. No later than the fifth Business Day following the date on which any Net Asset Sale Proceeds become Unreinvested Asset Sale Proceeds, Company shall prepay its outstanding Term Loans in an aggregate amount equal to such Unreinvested Asset Sale Proceeds; provided that, to the extent that such Unreinvested Asset Sale Proceeds result from the sale of any assets of a U.K. Borrower that has Term Loans outstanding or any Subsidiary of such U.K. Borrower (other than the other U.K. Borrower), such U.K. Borrower shall prepay its outstanding Term Loans in an aggregate amount equal to such Unreinvested Asset Sale Proceeds (and, if such sale is of the assets of a Subsidiary of both U.K. Borrowers, such prepayment shall be made by the U.K. Borrower that has the most direct ownership interest therein, and, if both U.K. Borrowers shall have a direct ownership interest therein, by both U.K. Borrowers pro rata to their respective ownership interests therein), and Company shall not be required to prepay its Term Loans to the extent of any such prepayment; provided further that Borrowers may in their sole discretion elect, pursuant to a written notice given by Company 61 on behalf of Borrowers to Administrative Agent describing such election, to postpone any mandatory prepayments otherwise required to be made by Borrowers pursuant to this subsection 2.4B(iii)(a) (any such prepayment, until the time actually made, being "Postponed Prepayments") until such time as the aggregate amount of Postponed Prepayments equals $5,000,000. (b) Prepayments from Consolidated Excess Cash Flow. In the event that (1) the Consolidated Leverage Ratio shall be equal to or greater than 4.00:1.00 as of the last day of any Fiscal Year (commencing with Fiscal Year 1997) and (ii) there shall be Consolidated Excess Cash Flow for such Fiscal Year, Company shall, no later than the date on which Company is required to deliver audited financial statements with respect to such Fiscal Year pursuant to subsection 6.1(ii), prepay its outstanding Term Loans in an aggregate amount equal to 50% of such Consolidated Excess Cash Flow (the remaining 50% of such Consolidated Excess Cash Flow being "Retained Excess Cash Flow"). (c) Prepayments Due to Reductions or Restrictions of Revolving Loan Commitments. Company shall from time to time prepay first the Swing Line Loans and second the Revolving Loans to the extent necessary so that the Total Utilization of Revolving Loan Commitments shall not at any time exceed the Revolving Loan Commitments then in effect. (iv) Application of Prepayments. (a) Application of Voluntary Prepayments by Type of Loans and Order of Maturity. Any voluntary prepayments pursuant to subsection 2.4B(i) shall be applied as specified by the applicable Borrower in the applicable notice of prepayment; provided that in the event Company fails to specify the Loans of Company to which any such prepayment shall be applied, such prepayment shall be applied first to repay outstanding Swing Line Loans to the full extent thereof, second to repay outstanding Revolving Loans to the full extent thereof, and third to repay outstanding Term Loans to the full extent thereof. Any voluntary prepayment of any Borrower's Term Loans pursuant to subsection 2.4B(i) shall be applied to prepay the Tranche A Term Loans, and, in the case of Company, the Tranche B Term Loans and/or the Tranche C Term Loans in the manner specified by such Borrower and to reduce the scheduled installments of principal of the Tranche A Term Loans and, in the case of Company, the Tranche B Term Loans and/or the Tranche C Term Loans set forth in subsections 2.4A(i), 2.4A(ii) and/or 2.4A(iii), as the case may be, in such order as such Borrower shall direct. 62 (b) Application of Mandatory Prepayments of Term Loans to Tranche A Term Loans, Tranche B Term Loans and Tranche C Term Loans and the Scheduled Installments of Principal Thereof. Any mandatory prepayments of Company's Term Loans pursuant to subsection 2.4B(iii) shall be applied to prepay the Tranche A Term Loans of Company, the Tranche B Term Loans and the Tranche C Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof). Except as provided in the last sentence of this paragraph, any mandatory prepayment of the Tranche A Term Loans of any Borrower, the Tranche B Term Loans or the Tranche C Term Loans shall be applied first to reduce the next two succeeding scheduled installments of principal of such Tranche A Term Loans, the Tranche B Term Loans or the Tranche C Term Loans, as the case may be, set forth in subsection 2.4A(i), 2.4A(ii) or 2.4A(iii), respectively, that are unpaid at the time of such prepayment in the forward order of maturity and second to reduce each remaining unpaid scheduled installment of principal of such Tranche A Term Loans, the Tranche B Term Loans or the Tranche C Term Loans, as the case may be, on a pro rata basis (in accordance with the respective unpaid principal amounts thereof). Any such mandatory prepayment of the Tranche A Term Loans of any Borrower, the Tranche B Term Loans or the Tranche C Term Loans out of Consolidated Excess Cash Flow shall be applied to reduce each remaining unpaid scheduled installment of principal of such Tranche A Term Loans, the Tranche B Term Loans or the Tranche C Term Loans, as the case may be, in such order as the applicable Borrower shall elect. (c) Waiver of Certain Mandatory Prepayments. Anything contained herein to the contrary notwithstanding, so long as any Tranche A Term Loans are outstanding, in the event Company is required to make any mandatory prepayment (a "Waivable Mandatory Prepayment") of the Tranche B Term Loans or the Tranche C Term Loans pursuant to subsection 2.4B(iii), (V) Company may, by written or telephonic notice (promptly confirmed in writing) given to Administrative Agent not less than three Business Days prior to the date (the "Required Prepayment Date") on which Company is required to make such Waivable Mandatory Prepayment, elect to offer each Lender holding an outstanding Tranche B Term Loan or Tranche C Term Loan, as the case may be, the option to refuse such Lender's Pro Rata Share of such Waivable Mandatory Prepayment, (W) in the event Company gives such notice to Administrative Agent, Administrative Agent will promptly notify each such Lender of the amount of such Lender's Pro Rata Share of such Waivable Mandatory Prepayment and such Lender's option to refuse such amount, (X) each such Lender may exercise such option by giving written notice to Company and Administrative Agent of its election to do so on or before the first Business Day (the "Cutoff Date") prior to the Required Prepayment Date, (Y) on the 63 Required Prepayment Date, Company shall pay to Administrative Agent an amount equal to the sum of (1) that portion of the Waivable Mandatory Prepayment payable to those Lenders that have elected not to exercise such option (it being understood that any Lender which does not notify Company and Administrative Agent of its election to exercise such option on or before the Cutoff Date shall be deemed to have elected, as of the Cutoff Date, not to exercise such option), which amount shall be applied to prepay the Tranche B Term Loans or Tranche C Term Loans, as the case may be, of such Lenders in accordance with subsection 2.4B(iv)(b) plus (2) 50% of that portion (the "Waived Portion") of the Waivable Mandatory Prepayment otherwise payable to those Lenders that have elected to exercise such option, which amount shall be applied to prepay the Tranche A Term Loans in the same manner as voluntary prepayments of the Tranche A Term Loans are applied pursuant to subsection 2.4B(iv)(a), and (Z) Company shall be entitled to retain the remaining 50% of the Waived Portion (such amount being a "Retained Prepayment") to be used for general corporate purposes. (d) Application of Prepayments of Dollar Loans to Base Rate Loans and LIBOR Loans; Option to Defer Certain Mandatory Prepayments of LIBOR Loans. Considering Tranche A Term Loans that are Dollar Loans, Tranche B Term Loans, Tranche C Term Loans and Revolving Loans being prepaid separately, any prepayment thereof shall be applied first to Base Rate Loans to the full extent thereof before application to LIBOR Loans, in each case in a manner which minimizes the amount of any payments required to be made by Company pursuant to subsection 2.6D; provided that, anything contained in this Agreement to the contrary notwithstanding, in the event that (1) the application of any mandatory prepayment pursuant to subsection 2.4B(iii) in accordance with the foregoing provisions of this subsection 2.4B(iv) would result in the prepayment of all or any portion of a LIBOR Loan (whether a Dollar Loan or a Sterling Loan) prior to the end of the Interest Period applicable thereto, (2) the remaining term of such Interest Period is less than three months, and (3) no Potential Event of Default or Event of Default shall have occurred and be continuing, the applicable Borrower shall have the option, by giving written notice (or telephonic notice promptly confirmed in writing) to Administrative Agent of its election to do so on or before the first Business Day prior to the date on which such prepayment would otherwise be required to be made, to defer the making of such prepayment until the last day of such Interest Period or such earlier date as such Borrower may specify in such notice. 64 C. General Provisions Regarding Payments. (i) Manner and Time of Payment. All payments by Company of principal, interest, fees and other Obligations hereunder and under the Notes shall be made in Dollars in same day funds, and all payment by U.K. Borrowers of principal, interest and other Obligations hereunder and under the Notes in respect of the Sterling Loans shall be made in Sterling in same day funds, in each case without defense, setoff or counterclaim, free of any restriction or condition, and delivered to Administrative Agent not later than 3:00 P.M. (New York City time) or 11:00 A.M. (London time), as applicable, on the date due at the applicable Funding and Payment Office for the account of Lenders; funds received by Administrative Agent after that time on such due date shall be deemed to have been paid by Company on the next succeeding Business Day. (ii) Application of Payments to Principal and Interest. Except as provided in subsection 2.2C, all payments in respect of the principal amount of any Loan shall include payment of accrued interest on the principal amount being repaid or prepaid, and all such payments (and, in any event, any payments in respect of any Loan on a date when interest is due and payable with respect to such Loan) shall be applied to the payment of interest before application to principal. (iii) Apportionment of Payments. Aggregate principal and interest payments in respect of Term Loans and Revolving Loans shall be apportioned among all outstanding Loans to which such payments relate, in each case proportionately to Lenders' respective Pro Rata Shares. Administrative Agent shall promptly distribute to each Lender, at its applicable Lending Office or at such other address as such Lender may request, its Pro Rata Share of all such payments received by Administrative Agent and the commitment fees of such Lender when received by Administrative Agent pursuant to subsection 2.3. Notwithstanding the foregoing provisions of this subsection 2.4C(iii), if, pursuant to the provisions of subsection 2.6C, any Notice of Conversion/Continuation is withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any LIBOR Loans, Administrative Agent shall give effect thereto in apportioning payments received thereafter. (iv) Payments on Business Days. Whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time shall be included in the computation of the payment of interest hereunder or of the commitment fees hereunder, as the case may be. 65 (v) Conversion of Amounts to Applicable Currencies. To the extent funds received by Administrative Agent from any Loan Party (or debited from any Loan Party's account with Administrative Agent) in Dollars or in Sterling must be converted into the Applicable Currency required for any payment hereunder, Administrative Agent shall effect such conversion on the applicable payment date on the basis of the rate at which Administrative Agent is able to purchase such Applicable Currency with such other currency on such payment date. D. Application of Proceeds of Collateral and Payments Under the Guaranties. (i) Application of Proceeds of Collateral. Subject to the provisions of the Intercreditor Agreement, all proceeds received by Collateral Agent in respect of any sale of, collection from, or other realization upon all or any part of the Collateral under any Collateral Document may, in the discretion of Collateral Agent, be held by Collateral Agent as Collateral for, and/or (then or at any time thereafter) applied in full or in part by Collateral Agent against, the applicable Secured Obligations (as defined in such Collateral Document) in the following order of priority: (a) To the payment of all costs and expenses of such sale, collection or other realization, including reasonable compensation to Collateral Agent and its agents and counsel, and all other expenses, liabilities and advances made or incurred by Collateral Agent in connection therewith, and all amounts for which Collateral Agent is entitled to indemnification under such Collateral Document and all advances made by Collateral Agent thereunder for the account of the applicable Loan Party, and to the payment of all costs and expenses paid or incurred by Collateral Agent in connection with the exercise of any right or remedy under such Collateral Document, all in accordance with the terms of this Agreement and such Collateral Document; (b) thereafter, to the extent of any excess such proceeds, to the payment of all other such Secured Obligations for the ratable benefit of the holders thereof; and (c) thereafter, to the extent of any excess such proceeds, to the payment to or upon the order of such Loan Party or to whosoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct. (ii) Application of Payments Under the Guaranties. All payments received by Collateral Agent under the Guaranties shall be applied promptly from time to time by Collateral Agent in the following order of priority: 66 (a) To the payment of the costs and expenses of any collection or other realization under the Guaranties, including reasonable compensation to Collateral Agent and its agents and counsel, and all expenses, liabilities and advances made or incurred by Collateral Agent in connection therewith, all in accordance with the terms of this Agreement and such Guaranty; (b) thereafter, to the extent of any excess such payments, to the payment of all other Guarantied Obligations (as defined in such Guaranty) for the ratable benefit of the holders thereof; and (c) thereafter, to the extent of any excess such payments, to the payment to the applicable Guarantor or to whosoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct. 2.5 Use of Proceeds. A. Term Loans. The proceeds of the Term Loans (including the DelayedDraw Term Loans) other than Sterling Loans, together with a portion of the proceeds of the initial Revolving Loans (the "Recapitalization Revolving Loans") and the proceeds of the debt and equity capitalization of Company described in subsection 4.1D(ii), shall be applied by Company to fund the Recapitalization Financing Requirements. The proceeds of the Sterling Loans made to ACI and UK Holding shall be used for general corporate purposes; provided that no proceeds of any Sterling Loan may be used in any way which infringes Section 151 of the Companies Act 1985, as amended. B. Revolving Loans; Swing Line Loans. The proceeds of the Recapitalization Revolving Loans shall be applied by Company as provided in subsection 2.5A. The proceeds of any other Revolving Loans and any Swing Line Loans shall be applied by Company for general corporate purposes. 2.6 Special Provisions Governing LIBOR Loans. Notwithstanding any other provision of this Agreement to the contrary, the following provisions shall govern with respect to LIBOR Loans as to the matters covered: A. Determination of Applicable Interest Rate. As soon as practicable after 10:00 A.M. (New York City time), or, in the case of Sterling Loans, 11:00 A.M. (London time), on each Interest Rate Determination Date, Administrative Agent shall determine (which determination shall, absent clearly demonstrable error, be final, conclusive and binding upon all parties) the interest rate that shall apply to LIBOR Loans for which an interest rate is then being determined for the applicable Interest Period and shall promptly give notice thereof (in writing or by telephone confirmed in writing) to Company, the applicable U.K. Borrower (in the case of Sterling Loans) and each Lender. 67 B. Inability to Determine Applicable Interest Rate. In the event that Administrative Agent shall have reasonably determined (which determination shall, absent clearly demonstrable error, be final and conclusive and binding upon all parties hereto), on any Interest Rate Determination Date with respect to any LIBOR Loans, that by reason of circumstances affecting the London interbank market for the Applicable Currency adequate and fair means do not exist for ascertaining the interest rate applicable to such Loans on the basis provided for in the definition of LIBOR, Administrative Agent shall on such date give notice (by telefacsimile or by telephone confirmed in writing) to the applicable Borrower and each Lender of such determination, whereupon (i) no Dollar Loans may be made as, or converted to, LIBOR Loans until such time as Administrative Agent notifies the applicable Borrower and Lenders that the circumstances giving rise to such notice no longer exist (which notice Administrative Agent shall give at such time as such circumstances no longer exist), (ii) any Notice of Borrowing or Notice of Conversion/Continuation given by any Borrower with respect to the Dollar Loans in respect of which such determination was made shall be deemed to be rescinded by such Borrower and (iii) the provisions of subsection 2.6G shall apply with respect to Sterling Loans. C. Illegality or Impracticability of LIBOR Loans. In the event that on any date any Lender shall have reasonably determined (which determination shall be made only after consultation with Company and Administrative Agent, it being understood that any such determination so made shall, absent clearly demonstrable error, be final and conclusive and binding upon all parties hereto) that the making, maintaining or continuation of its LIBOR Loans (i) has become unlawful as a result of compliance by such Lender in good faith with any law, treaty, governmental rule, regulation, guideline or order (or would conflict with any such treaty, governmental rule, regulation, guideline or order not having the force of law even though the failure to comply therewith would not be unlawful) or (ii) has become impracticable as a result of contingencies occurring after the date of this Agreement which materially and adversely affect the London interbank market for the Applicable Currency then, and in any such event, such Lender shall be an "Affected Lender" and it shall on that day give notice (by telefacsimile or by telephone confirmed in writing) to the applicable Borrower and Administrative Agent of such determination (which notice Administrative Agent shall promptly transmit to each other Lender). Thereafter (a) the obligation of the Affected Lender to make Loans as, or to convert Loans to, LIBOR Loans shall be suspended until such notice shall be withdrawn by the Affected Lender, (b) to the extent such determination by the Affected Lender relates to a LIBOR Loan other than a Sterling Loan then being requested by Company pursuant to a Notice of Borrowing or a Notice of Conversion/Continuation, the Affected Lender shall make such Loan as (or convert such Loan to, as the case may be) a Base Rate Loan, (c) the Affected Lender's obligation to maintain its outstanding LIBOR Loans (the "Affected Loans") shall be terminated at the earlier to occur of the expiration of the Interest Period then in effect with respect to the Affected Loans or when required by law, and (d) any Affected Loans that are Dollar Loans shall automatically convert into Base Rate Loans on the date of such termination. Notwithstanding the foregoing, to the 68 extent a determination by an Affected Lender as described above relates to a LIBOR Loan then being requested by a Borrower pursuant to a Notice of Borrowing or a Notice of Conversion/Continuation, such Borrower shall have the option, subject to the provisions of subsection 2.6D, to rescind such Notice of Borrowing or Notice of Conversion/Continuation as to all Lenders by giving notice (by telefacsimile or by telephone confirmed in writing) to Administrative Agent of such rescission on the date on which the Affected Lender gives notice of its determination as described above (which notice of rescission Administrative Agent shall promptly transmit to each other Lender). Except as provided in the immediately preceding sentence, nothing in this subsection 2.6C shall affect the obligation of any Lender other than an Affected Lender to make or maintain Loans as, or to convert Loans to, LIBOR Loans in accordance with the terms of this Agreement. Notwithstanding the foregoing, if Tranche A Lenders having or holding more than 50% of the outstanding Sterling Loans are Affected Lenders as a result of contingencies materially and adversely affecting the London interbank Sterling market, Administrative Agent shall give prompt written notice of such event to U.K. Borrowers and Lenders, in which event the provisions of subsection 2.6G shall apply; provided that such notice shall not relieve any Lender of any obligation to maintain its outstanding Sterling Loans in accordance with the terms of this Agreement. D. Compensation For Breakage or Non-Commencement of Interest Periods. The applicable Borrower shall compensate each Lender, upon written request by that Lender (which request shall set forth in reasonable detail the basis for requesting such amounts), for all reasonable losses, costs and expenses sustained by that Lender (including losses, costs and expenses actually sustained by that Lender in connection with the liquidation or re-employment of deposits or other funds acquired by it to make or carry the subject LIBOR Loans but excluding any loss of anticipated profits): (i) if for any reason (other than a default by that Lender or Administrative Agent) a borrowing of any LIBOR Loan by such Borrower does not occur on a date specified therefor in a Notice of Borrowing or a telephonic request for borrowing, or a conversion to or continuation of any LIBOR Loan by such Borrower does not occur on a date specified therefor in a Notice of Conversion/Continuation or a telephonic request for conversion or continuation, (ii) if any prepayment (including any prepayment pursuant to subsection 2.4B(i)) or other principal payment or any conversion of any of such Borrower's LIBOR Loans occurs on a date prior to the last day of an Interest Period applicable to that Loan or (iii) if any prepayment of any of such Borrower's LIBOR Loans is not made on any date specified in a notice of prepayment given by such Borrower. E. Booking of LIBOR Loans. Any Lender may make, carry or transfer LIBOR Loans at, to, or for the account of any of its branch offices or the office of an Affiliate of that Lender; provided that Sterling Loans may only be made or carried by a U.K. Qualifying Bank. F. LIBOR Loans After Default. If, after the occurrence of and during the continuation of a Potential Event of Default or an Event of Default, Administrative Agent 69 or Requisite Lenders have determined in its or their sole discretion not to permit the making or continuation of any Dollar Loans as, or the conversion of any Dollar Loans to, LIBOR Loans and Administrative Agent has so notified Borrowers in writing (i) Borrowers may not elect to have any Loans be made as or converted to LIBOR Loans or elect to have any outstanding LIBOR Loans continued as such after the expiration of the Interest Periods then in effect for such LIBOR Loans, (ii) subject to the provisions of subsection 2.6D, any Notice of Borrowing or Notice of Conversion/Continuation given by such Borrower with respect to a requested borrowing or conversion/continuation in respect of LIBOR Loans that has not yet occurred shall be deemed to be rescinded by such Borrower, and (iii) Sterling Loans shall be automatically continued as LIBOR Loans having consecutive Interest Periods of one month. G. Certain Events Affecting Sterling Loans. During the period of 25 days after the giving of any notice by Administrative Agent (i) of the inability to determine a Sterling interest rate pursuant to subsection 2.6B or (ii) that more than 50% of the Tranche A Lenders are Affected Lenders pursuant to subsection 2.6C, Administrative Agent (in consultation with Tranche A Lenders that are affected by such notice (the "Affected Sterling Lenders") shall negotiate with U.K. Borrowers in good faith in order to ascertain whether a substitute interest rate (a "Substitute Rate") or a substitute basis (a "Substitute Basis") may be agreed upon for the maintaining of existing Sterling Loans that are Affected Loans. If a Substitute Rate or a Substitute Basis is agreed upon by U.K. Borrowers and all Affected Sterling Lenders, such Substitute Rate or such Substitute Basis, as the case may be, shall apply in accordance with its terms from the time referred to in clause (c) of the second sentence of subsection 2.6C. If a Substitute Rate or a Substitute Basis is not so agreed upon by U.K. Borrowers and all Affected Sterling Lenders by the end of such 25-day period, each Affected Sterling Lender's Sterling Loans shall thereafter bear interest at a rate equal to the sum of (x) the rate certified by such Affected Sterling Lender to be its cost of funds (from such sources as it may reasonably select out of those sources then available to it) for such Sterling Loans plus (y) the Applicable Tranche A LIBOR Margin plus (z) any Mandatory Liquid Asset Costs incurred by such Affected Sterling Lender in respect of such Sterling Loans from time to time. 2.7 Increased Costs; Capital Adequacy. A. Compensation for Increased Costs and Taxes. Subject to the provisions of subsection 2.7B (which shall be controlling with respect to the matters covered thereby), in the event that any Lender shall reasonably determine (which determination shall, absent clearly demonstrable error, be final and conclusive and binding upon all parties hereto) that the introduction or adoption (after the date hereof) of any law, treaty or governmental rule, regulation or order, or that any change (after the date hereof) in any law, treaty or governmental rule, regulation or order or in the interpretation, administration or application thereof, or that any determination (after the date hereof) by a court or governmental authority, or that compliance by such Lender with any guideline, 70 request or directive issued or made (after the date hereof) by any central bank or other governmental or quasi-governmental authority (whether or not having the force of law), in any such case: (i) subjects such Lender (or its applicable Lending Office) to any additional Tax (excluding (x) any Tax on the overall net income of such Lender and (y) any Tax imposed on any Agent or any Lender as result of a present or former connection between the jurisdiction imposing such Taxes and such Lender (except a present connection arising solely from such Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced any Loan Documents)) with respect to this Agreement or any of its obligations hereunder or any payments to such Lender (or its applicable Lending Office) of principal, interest, fees or any other amount payable hereunder (any such non-excluded Tax, a "Non-Excluded Tax"); (ii) imposes, modifies or holds applicable any reserve (including any marginal, emergency, supplemental, special or other reserve), special deposit, compulsory loan, FDIC insurance or similar requirement against assets held by, or deposits or other liabilities in or for the account of, or advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Lender (other than any included within the definition of Mandatory Liquid Asset Costs); or (iii) imposes any other condition (other than with respect to a Tax matter) on or affecting such Lender (or its applicable Lending Office) or its obligations hereunder or the London interbank market for the Applicable Currency; and the result of any of the foregoing is to increase the cost to such Lender of agreeing to make, making or maintaining Loans hereunder or to reduce any amount received or receivable by such Lender (or its applicable Lending Office) with respect thereto; then, in any such case, the applicable Borrower shall pay to such Lender, promptly after receipt of the statement referred to in the next sentence, such additional amount or amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender in its reasonable discretion shall determine) as may be necessary to compensate such Lender for any such increased cost or reduction in amounts received or receivable hereunder. Such Lender shall deliver to the applicable Borrower (with a copy to Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to such Lender under this subsection 2.7A, which statement shall be conclusive and binding upon all parties hereto absent clearly demonstrable error. Notwithstanding the foregoing, neither U.K. Borrower shall be obligated to compensate any Lender under this subsection 2.7A in respect of any increased cost which is incurred as a result of the implementation after the date hereof, in whole or in part, of the International Convergence of Capital Measurements and Capital Standards dated July 1988 published by the Basle Committee on Banking Regulations and 71 Supervisory Practices (the "Guidance"), except where a higher level of capital adequacy is imposed than that stipulated in the Guidance as at the date of this Agreement. B. Withholding of Taxes. (i) Payments to Be Free and Clear. All sums payable by Borrowers under this Agreement and the other Loan Documents shall (except to the extent required by law) be paid free and clear of, and without any deduction or withholding on account of, any Non-Excluded Tax imposed, levied, collected, withheld or assessed by or within the United States of America or the United Kingdom or any political subdivision in or of the United States of America or the United Kingdom or any other jurisdiction from or to which a payment is made by or on behalf of any Borrower or by any federation or organization of which the United States of America or the United Kingdom or any such jurisdiction is a member at the time of payment. (ii) Grossing-up of Payments. If any Borrower or any other Person is required by law to make any deduction or withholding on account of any such Non-Excluded Tax from any sum paid or payable by such Borrower to Administrative Agent or any Lender under any of the Loan Documents: (a) such Borrower shall notify Administrative Agent of any such requirement or any change in any such requirement as soon as such Borrower becomes aware of it; (b) such Borrower shall pay any such Non-Excluded Tax before the date on which penalties attach thereto, such payment to be made (if the liability to pay is imposed on such Borrower) for its own account or (if that liability is imposed on Administrative Agent or such Lender, as the case may be) on behalf of and in the name of Administrative Agent or such Lender; (c) the sum payable by such Borrower in respect of which the relevant deduction, withholding or payment is required shall be increased to the extent necessary to ensure that, after the making of that deduction, withholding or payment, Administrative Agent or such Lender, as the case may be, receives on the due date a net sum equal to what it would have received had no such deduction, withholding or payment been required or made; and (d) within 30 days after paying any sum from which it is required by law to make any deduction or withholding, and within 30 days after the due date of payment of any Non-Excluded Tax which it is required by clause (b) above to pay, such Borrower shall deliver to Administrative 72 Agent evidence satisfactory to the other affected parties of such deduction, withholding or payment and of the remittance thereof to the relevant taxing or other authority; provided that no such additional amount shall be required to be paid to any Lender under clause (c) above except to the extent that any change after the date hereof (in the case of each Lender listed on the signature pages hereof) or after the date of the Assignment Agreement pursuant to which such Lender became a Lender (in the case of each other Lender) in any such requirement for a deduction, withholding or payment as is mentioned therein shall result in an increase in the rate of such deduction, withholding or payment from that in effect at the date of this Agreement or at the date of such Assignment Agreement, as the case may be, in respect of payments to such Lender. (iii) Evidence of Exemption from U.S. Withholding Tax. (a) Each Lender that is organized under the laws of any jurisdiction other than the United States or any state or other political subdivision thereof (for purposes of this subsection 2.7B(iii), a "Non-US Lender") shall deliver to Administrative Agent for transmission to Company, on or prior to the Closing Date (in the case of each Lender listed on the signature pages hereof) or on or prior to the date of the Assignment Agreement pursuant to which it becomes a Lender (in the case of each other Lender), and at such other times as may be necessary in the determination of Company or Administrative Agent (each in the reasonable exercise of its discretion), (1) two original copies of Internal Revenue Service Form 1001 or 4224 (or any successor forms), properly completed and duly executed by such Lender, together with any other certificate or statement of exemption required under the Internal Revenue Code or the regulations issued thereunder to establish that such Lender is not subject to deduction or withholding of United States federal income tax with respect to any payments to such Lender of principal, interest, fees or other amounts payable under any of the Loan Documents or (2) if such Lender is not a "bank" or other Person described in Section 881(c)(3) of the Internal Revenue Code and cannot deliver either Internal Revenue Service Form 1001 or 4224 pursuant to clause (1) above, a Certificate re Non-Bank Status together with two original copies of Internal Revenue Service Form W-8 (or any successor form), properly completed and duly executed by such Lender, together with any other certificate or statement of exemption required under the Internal Revenue Code or the regulations issued thereunder to establish that such Lender is not subject to deduction or withholding of United States federal income tax with respect to any payments to such Lender of interest payable under any of the Loan Documents. 73 (b) Each Lender required to deliver any forms, certificates or other evidence with respect to United States federal income tax withholding matters pursuant to subsection 2.7B(iii)(a) hereby agrees, from time to time after the initial delivery by such Lender of such forms, certificates or other evidence, whenever a lapse in time or change in circumstances renders such forms, certificates or other evidence obsolete or inaccurate in any material respect, that such Lender shall promptly (1) deliver to Administrative Agent for transmission to Company two new original copies of Internal Revenue Service Form 1001 or 4224, or a Certificate re Non-Bank Status and two original copies of Internal Revenue Service Form W-8, as the case may be, properly completed and duly executed by such Lender, together with any other certificate or statement of exemption required in order to confirm or establish that such Lender is not subject to deduction or withholding of United States federal income tax with respect to payments to such Lender under the Loan Documents or (2) notify Administrative Agent and Company of its inability to deliver any such forms, certificates or other evidence. (c) Company shall not be required to pay any additional amount to any Non-US Lender under clause (c) of subsection 2.7B(ii) if such Lender shall have failed to satisfy the requirements of clause (a) or (b)(1) of this subsection 2.7B(iii); provided that if such Lender shall have satisfied the requirements of subsection 2.7B(iii)(a) on the Closing Date (in the case of each Lender listed on the signature pages hereof) or on the date of the Assignment Agreement pursuant to which it became a Lender (in the case of each other Lender), nothing in this subsection 2.7B(iii)(c) shall relieve Company of its obligation to pay any additional amounts pursuant to clause (c) of subsection 2.7B(ii) in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in the interpretation, administration or application thereof, such Lender is no longer properly entitled to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding as described in subsection 2.7B(iii)(a). (iv) U.K. Tax Status. (a) Each Tranche A Lender represents and warrants that it is a U.K. Qualifying Bank and hereby agrees to deliver to Administrative Agent from time to time such forms, certificates or other evidence with respect to its status as a U.K. Qualifying Bank as Administrative Agent may reasonably request from time to time. (b) Neither U.K. Borrower shall be required to pay any additional amount to any Lender under clause (c) of subsection 2.7B(ii) in respect of deductions or withholdings of income or similar taxes imposed by the 74 United Kingdom with respect to payments by such U.K. Borrower which would not have been imposed on such payment if the Lender to which such payment was made was at the date of payment a U.K. Qualifying Bank and was beneficially entitled to the interest. C. Capital Adequacy Adjustment. If any Lender shall have determined that the introduction or adoption (after the date hereof) of any law, rule or regulation (or any provision thereof) regarding capital adequacy, or that any change (after the date hereof) therein or in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or that compliance by any Lender (or its applicable Lending Office) with any guideline, request or directive regarding capital adequacy (whether or not having the force of law) introduced or adopted (after the date hereof) by any such governmental authority, central bank or comparable agency, in any such case has or would have the effect of reducing the rate of return on the capital of such Lender or any corporation controlling such Lender as a consequence of such Lender's Loans or Commitments or Letters of Credit or participations therein or other obligations hereunder with respect to the Loans or the Letters of Credit to a level below that which such Lender or such controlling corporation could have achieved but for such introduction, adoption, change or compliance (taking into consideration the policies of such Lender or such controlling corporation with regard to capital adequacy), then from time to time, promptly after receipt by the applicable Borrower from such Lender of the statement referred to in the next sentence, such Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling corporation for such reduction. Such Lender shall deliver to such Borrower (with a copy to Administrative Agent) a written statement setting forth in reasonable detail the basis of the calculation of such additional amounts, which statement shall be conclusive and binding upon all parties hereto absent clearly demonstrable error. 2.8 Notice of Certain Costs; Obligation of Lenders and Issuing Lenders to Mitigate. A. Notwithstanding anything in this Agreement to the contrary, to the extent subsection 2.6, 2.7 or 3.6 requires any Lender or Issuing Lender to give notice to any Borrower of an event or a condition that would entitle such Lender or Issuing Lender to receive payments under subsection 2.6, 2.7 or 3.6, as the case may be, in the event such notice is given by such Lender or Issuing Lender more than 180 days after such Lender or Issuing Lender has knowledge of the occurrence or existence of such event or circumstance, such Lender or Issuing Lender shall not be entitled to receive any such payments under subsection 2.6, 2.7 or 3.6, as the case may be, in respect of the period ending on the Business Day immediately preceding the date on which such notice is given to such Borrower. 75 B. Each Lender and Issuing Lender agrees that, if an event occurs or a condition arises that would cause such Lender to become an Affected Lender or that would entitle such Lender or Issuing Lender to receive payments under subsection 2.7 or subsection 3.6, it will, if so requested by any applicable Borrower, use reasonable efforts (subject to overall policy considerations of such Lender) to (i) make, issue, fund or maintain the Commitments of such Lender or the affected Loans or Letters of Credit (or participations therein) of such Lender or Issuing Lender through another lending or letter of credit office of such Lender or Issuing Lender or (ii) take such other measures as such Lender or Issuing Lender may deem reasonable in good faith, if as a result thereof the circumstances which would cause such Lender to be an Affected Lender would cease to exist or the additional amounts which would otherwise be required to be paid to such Lender or Issuing Lender pursuant to subsection 2.7 or subsection 3.6 would be materially reduced and if the making, issuing, funding or maintaining of such Commitments or Loans or Letters of Credit (or participations therein) through such other lending or letter of credit office or in accordance with such other measures, as the case may be, would not otherwise materially adversely affect such Commitments or Loans or Letters of Credit (or participations therein) or cause such Lender or Issuing Lender to suffer any economic, legal or regulatory disadvantage or (except with the express consent of the applicable Borrower) cause such Lender not to be a U.K. Qualifying Bank; provided that nothing in this subsection 2.8 shall affect or postpone any of the Obligations of any Borrower or the rights of any Lender provided in subsection 2.6C, 2.6G, 2.7 or 3.6. 2.9 Defaulting Lenders. Anything contained herein to the contrary notwithstanding, in the event that any Lender (a "Defaulting Lender") defaults (a "Funding Default") in its obligation to fund any Revolving Loan (a "Defaulted Revolving Loan") in accordance with subsection 2.1 as a result of the appointment of a receiver or conservator with respect to such Lender at the direction or request of any regulatory agency or authority, then (i) during any Default Period (as defined below) with respect to such Defaulting Lender, such Defaulting Lender shall be deemed not to be a "Lender" for purposes of voting on any matters (including the granting of any consents or waivers) with respect to any of the Loan Documents, (ii) to the extent permitted by applicable law, until such time as the Default Excess (as defined below) with respect to such Defaulting Lender shall have been reduced to zero, (a) any voluntary prepayment of the Revolving Loans pursuant to subsection 2.4B(i) shall, if Company so directs at the time of making such voluntary prepayment, be applied to the Revolving Loans of other Lenders as if such Defaulting Lender had no Revolving Loans outstanding and the Revolving Loan Exposure of such Defaulting Lender were zero, and (b) any mandatory prepayment of the Revolving Loans pursuant to subsection 2.4B(iii) shall, if Company so directs at the time of making such mandatory prepayment, be applied to the Revolving Loans of other Lenders (but not to the Revolving Loans of such Defaulting Lender) as if such Defaulting Lender had funded all Defaulted Revolving Loans of such Defaulting Lender, it being understood and agreed 76 that Company shall be entitled to retain any portion of any mandatory prepayment of the Revolving Loans that is not paid to such Defaulting Lender solely as a result of the operation of the provisions of this clause (b), (iii) such Defaulting Lender's Revolving Loan Commitment and outstanding Revolving Loans and such Defaulting Lender's Pro Rata Share of the Letter of Credit Usage shall be excluded for purposes of calculating the commitment fee payable to Lenders pursuant to subsection 2.3A in respect of any day during any Default Period with respect to such Defaulting Lender, and such Defaulting Lender shall not be entitled to receive any commitment fee pursuant to subsection 2.3A with respect to such Defaulting Lender's Revolving Loan Commitment in respect of any Default Period with respect to such Defaulting Lender, and (iv) the Total Utilization of Revolving Loan Commitments as at any date of determination shall be calculated as if such Defaulting Lender had funded all Defaulted Revolving Loans of such Defaulting Lender. For purposes of this Agreement, (I) "Default Period" means, with respect to any Defaulting Lender, the period commencing on the date of the applicable Funding Default and ending on the earliest of the following dates: (A) the date on which all Revolving Loan Commitments are cancelled or terminated and/or the Obligations are declared or become immediately due and payable, (B) the date on which (1) the Default Excess with respect to such Defaulting Lender shall have been reduced to zero (whether by the funding by such Defaulting Lender of any Defaulted Revolving Loans of such Defaulting Lender or by the non-pro rata application of any voluntary or mandatory prepayments of the Revolving Loans in accordance with the terms of this subsection 2.9 or by a combination thereof) and (2) such Defaulting Lender shall have delivered to Company and Administrative Agent a written reaffirmation of its intention to honor its obligations under this Agreement with respect to its Revolving Loan Commitment, and (C) the date on which Company, Administrative Agent and Requisite Lenders waive all Funding Defaults of such Defaulting Lender in writing, and (II) "Default Excess" means, with respect to any Defaulting Lender, the excess, if any, of such Defaulting Lender's Pro Rata Share of the aggregate outstanding principal amount of Revolving Loans of all Lenders (calculated as if all Defaulting Lenders (other than such Defaulting Lender) had funded all of their respective Defaulted Revolving Loans) over the aggregate outstanding principal amount of Revolving Loans of such Defaulting Lender. No Commitment of any Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in this subsection 2.9, performance by Company of its obligations under this Agreement and the other Loan Documents shall not be excused or otherwise modified, as a result of any Funding Default or the operation of this subsection 2.9. The rights and remedies against a Defaulting Lender under this subsection 2.9 are in addition to other rights and remedies which Company may have against such Defaulting Lender with respect to any Funding Default and which Administrative Agent or any Lender may have against such Defaulting Lender with respect to any Funding Default. 77 2.10 Removal or Replacement of a Lender. A. Anything contained in this Agreement to the contrary notwithstanding, in the event that: (i) (a) any Lender (an "Increased-Cost Lender") shall give notice to any Borrower that such Lender is an Affected Lender or that such Lender is entitled to receive payments under subsection 2.7 or subsection 3.6, (b) the circumstances which have caused such Lender to be an Affected Lender or which entitle such Lender to receive such payments shall remain in effect, and (c) such Lender shall fail to withdraw such notice within five Business Days after such Borrower's request for such withdrawal; or (ii) (a) any Lender shall become a Defaulting Lender, (b) the Default Period for such Defaulting Lender shall remain in effect, and (c) such Defaulting Lender shall fail to cure the default as a result of which it has become a Defaulting Lender within five Business Days after Company's request that it cure such default; or (iii) (a) in connection with any proposed amendment, modification, termination, waiver or consent with respect to any of the provisions of this Agreement as contemplated by clauses (i) through (iv) of the first proviso to subsection 10.6A, the consent of Requisite Lenders shall have been obtained but the consent of one or more of such other Lenders (each a "Non-Consenting Lender") whose consent is required shall not have been obtained, and (b) the failure to obtain Non-Consenting Lenders' consents does not result solely from the exercise of Non-Consenting Lenders' rights (and the withholding of any required consents by Non-Consenting Lenders) pursuant to the second proviso to subsection 10.6A; then, and in each such case, Company shall have the right, at its option and on behalf of all Borrowers, to remove or replace the applicable Increased-Cost Lender, Defaulting Lender or Non-Consenting Lender (the "Terminated Lender") to the extent permitted by subsection 2.10B. B. Company may, by giving written notice to Administrative Agent and any Terminated Lender of its election to do so: (i) elect to (a) terminate the Revolving Loan Commitment, if any, of such Terminated Lender upon receipt by such Terminated Lender of such notice and (b) prepay on the date of such termination any outstanding Loans made by such Terminated Lender, together with accrued and unpaid interest thereon and any other amounts payable to such Terminated Lender hereunder pursuant to subsection 2.6, subsection 2.7 or subsection 3.6 or otherwise; provided that, in the event such 78 Terminated Lender has any Loans outstanding at the time of such termination, the written consent of Administrative Agent and Requisite Lenders (which consent shall not be unreasonably withheld or delayed) shall be required in order for Company to make the election set forth in this clause (i); or (ii) elect to cause such Terminated Lender (and such Terminated Lender hereby irrevocably agrees) to assign its outstanding Loans and its Revolving Loan Commitment, if any, in full to one or more Eligible Assignees (each a "Replacement Lender") in accordance with the provisions of subsection 10.1B; provided that (a) on the date of such assignment, the applicable Borrower shall pay any amounts payable to such Terminated Lender pursuant to subsection 2.6, subsection 2.7 or subsection 3.6 or otherwise as if it were a prepayment and (b) in the event such Terminated Lender is a Non-Consenting Lender, each Replacement Lender shall consent, at the time of such assignment, to each matter in respect of which such Terminated Lender was a Non-Consenting Lender; provided that (X) Company may not make either of the elections set forth in clauses (i) or (ii) above with respect to any Non-Consenting Lender unless Company also makes one of such elections with respect to each other Terminated Lender which is a Non-Consenting Lender and (Y) Company may not make either of such elections with respect to any Terminated Lender that is an Issuing Lender unless, prior to the effectiveness of such election, Company shall have caused each outstanding Letter of Credit issued by such Issuing Lender to be cancelled. C. Upon the prepayment of all amounts owing to any Terminated Lender and the termination of such Terminated Lender's Revolving Loan Commitment, if any, pursuant to clause (i) of subsection 2.10B, (i) Schedule 2.1 shall be deemed modified to reflect any corresponding changes in the Revolving Loan Commitments and (ii) such Terminated Lender shall no longer constitute a "Lender" for purposes of this Agreement; provided that any rights of such Terminated Lender to indemnification under this Agreement (including under subsections 2.6D, 2.7, 3.6, 10.2 and 10.3) shall survive as to such Terminated Lender. Section 3. LETTERS OF CREDIT 3.1 Issuance of Letters of Credit and Lenders' Purchase of Participations Therein. A. Letters of Credit. In addition to Company requesting that Lenders make Revolving Loans pursuant to subsection 2.1A(iv) and that Swing Line Lender make Swing Line Loans pursuant to subsection 2.1A(v), Company may request, in accordance with the provisions of this subsection 3.1, from time to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date, that one or more Lenders issue Letters of Credit for the account of Company for the purposes 79 specified in the definitions of Commercial Letters of Credit and Standby Letters of Credit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Company herein set forth, any one or more Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters of Credit in accordance with the provisions of this subsection 3.1; provided that Company shall not request that any Lender issue (and no Lender shall issue): (i) any Letter of Credit if, after giving effect to such issuance, the Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan Commitments then in effect; (ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed $100,000,000; (iii) any Standby Letter of Credit having an expiration date later than the earlier of (a) five Business Days prior to the Revolving Loan Commitment Termination Date and (b) the date which is one year from the date of issuance of such Standby Letter of Credit; provided that the immediately preceding clause (b) shall not prevent any Issuing Lender from agreeing that a Standby Letter of Credit will automatically be extended for one or more successive periods not to exceed one year each unless such Issuing Lender elects not to extend for any such additional period; and provided, further that such Issuing Lender shall elect not to extend such Standby Letter of Credit if it has been notified by Administrative Agent that an Event of Default has occurred and is continuing (and has not been waived in accordance with subsection 10.6) at the time such Issuing Lender must elect whether or not to allow such extension; (iv) any Commercial Letter of Credit having an expiration date (a) later than the earlier of (X) the date which is 30 days prior to the Revolving Loan Commitment Termination Date and (Y) the date which is 180 days from the date of issuance of such Commercial Letter of Credit or (b) that is otherwise unacceptable to the applicable Issuing Lender in its reasonable discretion; or (v) any Letter of Credit that does not provide for sight payment. B. Mechanics of Issuance. (i) Notice of Request for Issuance. Whenever Company desires the issuance of a Letter of Credit, it shall deliver to Administrative Agent a Notice of Request for Issuance of Letter of Credit substantially in the form of Exhibit III annexed hereto no later than 12:00 Noon (New York City time) at least three Business Days (in the case of Standby Letters of Credit) or five Business Days (in the case of Commercial Letters of Credit), or in each case such shorter period as may be agreed to by the Issuing Lender in any particular instance, in advance of 80 the proposed date of issuance. The Notice of Request for Issuance of Letter of Credit shall specify (a) the proposed date of issuance (which shall be a Business Day), (b) whether the Letter of Credit is to be a Standby Letter of Credit or a Commercial Letter of Credit, (c) the face amount of the Letter of Credit, (d) in the case of a Letter of Credit which Company requests to be denominated in a currency other than Dollars, the currency in which Company requests such Letter of Credit to be issued, (e) the expiration date of the Letter of Credit, (f) the name and address of the beneficiary, and (g) either the verbatim text of the proposed Letter of Credit or the proposed terms and conditions thereof, including a precise description of any documents to be presented by the beneficiary which, if presented by the beneficiary in substantial compliance with the terms and conditions of the Letter of Credit on or prior to the expiration date of the Letter of Credit, would require the Issuing Lender to make payment under the Letter of Credit; provided that the Issuing Lender, in its reasonable discretion, may require changes in the text of the proposed Letter of Credit or any such documents; and provided, further that no Letter of Credit shall require payment against a conforming draft to be made thereunder on the same business day (under the laws of the jurisdiction in which the office of the Issuing Lender to which such draft is required to be presented is located) that such draft is presented if such presentation is made after 11:00 A.M. (in the time zone of such office of the Issuing Lender) on such business day. Company shall notify the applicable Issuing Lender (and Administrative Agent, if Administrative Agent is not such Issuing Lender) prior to the issuance of any Letter of Credit in the event that any of the matters to which Company is required to certify in the applicable Notice of Request for Issuance of Letter of Credit is no longer true and correct as of the proposed date of issuance of such Letter of Credit, and upon the issuance of any Letter of Credit Company shall be deemed to have re-certified, as of the date of such issuance, as to the matters to which Company is required to certify in the applicable Notice of Request for Issuance of Letter of Credit. (ii) Determination of Issuing Lender. Upon receipt by Administrative Agent of a Notice of Request for Issuance of Letter of Credit pursuant to subsection 3.1B(i) requesting the issuance of a Letter of Credit, in the event Administrative Agent elects to issue such Letter of Credit, Administrative Agent shall promptly so notify Company, and Administrative Agent shall be the Issuing Lender with respect thereto. In the event that Administrative Agent, in its sole discretion, elects not to issue such Letter of Credit, Administrative Agent shall promptly so notify Company, whereupon Company may request any other Lender to issue such Letter of Credit by delivering to such Lender a copy of the applicable Notice of Request for Issuance of Letter of Credit. Any Lender so requested to issue such Letter of Credit shall promptly notify Company and Administrative Agent whether or not, in its sole discretion, it has elected to issue such Letter of 81 Credit, and any such Lender which so elects to issue such Letter of Credit shall be the Issuing Lender with respect thereto. In the event that all other Lenders shall have declined to issue such Letter of Credit, notwithstanding the prior election of Administrative Agent not to issue such Letter of Credit, Administrative Agent shall be obligated to issue such Letter of Credit and shall be the Issuing Lender with respect thereto, notwithstanding the fact that the Letter of Credit Usage with respect to such Letter of Credit and with respect to all other Letters of Credit issued by Administrative Agent, when aggregated with Administrative Agent's outstanding Revolving Loans and Swing Line Loans, may exceed Administrative Agent's Revolving Loan Commitment then in effect; provided that Administrative Agent shall not be obligated to issue any Letter of Credit denominated in a foreign currency which in the judgment of Administrative Agent is not readily and freely available. Company shall notify the applicable Issuing Lender (and Administrative Agent, if Administrative Agent is not such Issuing Lender) prior to the issuance of any Letter of Credit in the event that any of the matters to which Company is required to certify in the applicable Notice of Request for Issuance of Letter of Credit is no longer true and correct as of the proposed date of issuance of such Letter of Credit, and upon the issuance of any Letter of Credit Company shall be deemed to have re-certified, as of the date of such issuance, as to the matters to which Company is required to certify in the applicable Notice of Request for Issuance of Letter of Credit. (iii) Issuance of Letter of Credit. Upon satisfaction or waiver (in accordance with subsection 10.6) of the conditions set forth in subsection 4.3, the Issuing Lender shall issue the requested Letter of Credit in accordance with the Issuing Lender's standard operating procedures. (iv) Notification to Lenders Regarding Standby Letters of Credit. Upon the issuance of any Standby Letter of Credit the applicable Issuing Lender shall promptly notify Administrative Agent and each other Lender of such issuance, which notice shall be accompanied by a copy of such Standby Letter of Credit. Promptly after receipt of such notice (or, if Administrative Agent is the Issuing Lender, together with such notice), Administrative Agent shall notify each Lender of the amount of such Lender's respective participation in such Standby Letter of Credit, determined in accordance with subsection 3.1C. In addition, on the first Business Day of each calendar month each Issuing Lender shall deliver to Administrative Agent and each Lender a report setting forth the maximum aggregate amount which is at or any time thereafter may become available for drawing under all Standby Letters of Credit issued by such Issuing Lender then outstanding (any amount which is denominated in a currency other than Dollars being determined by reference to the applicable Exchange Rate for such currency as at such date), and identifying each Standby Letter of Credit issued by such 82 Issuing Lender, the maximum amount that may become available thereunder and, in the case of each Standby Letter of Credit that is not denominated in Dollars, the applicable Exchange Rate for such Letter of Credit as at such date. (v) Reports to Administrative Agent and Lenders Regarding Commercial Letters of Credit. Each Issuing Lender (other than Administrative Agent) with respect to any Commercial Letter of Credit shall deliver to Administrative Agent, by telefacsimile transmission on the first Business Day of each week, a report setting forth the daily aggregate amount available for drawing during the immediately preceding week under all outstanding Commercial Letters of Credit issued by such Issuing Lender. Within 15 days after the end of each calendar month ending after the Closing Date, so long as any Commercial Letter of Credit shall have been outstanding during such calendar month, Administrative Agent shall deliver to each Lender a report setting forth for such calendar month the daily aggregate amount available to be drawn under all Commercial Letters of Credit that were outstanding during such calendar month. C. Lenders' Purchase of Participations in Letters of Credit. Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby agrees to, have irrevocably purchased from the Issuing Lender a participation in such Letter of Credit and any drawings honored thereunder in an amount equal to such Lender's Pro Rata Share of the maximum amount which is or at any time may become available to be drawn thereunder. 3.2 Letter of Credit Fees. Company agrees to pay the following amounts with respect to Letters of Credit issued hereunder: (i) with respect to each Letter of Credit, (a) a fronting fee, payable directly to the applicable Issuing Lender for its own account, equal to 0.125% per annum multiplied by the daily amount available to be drawn under such Letter of Credit and (b) a letter of credit fee, payable to Administrative Agent for the account of Lenders, equal to the Applicable Tranche A LIBOR Margin minus 0.125% per annum minus the Applicable Commitment Fee Percentage multiplied by the daily amount available to be drawn under such Letter of Credit, each such fronting fee or letter of credit fee to be payable in arrears on and to (but excluding) each March 31, June 30, September 30 and December 31 of each year and on the Revolving Loan Commitment Termination Date, in each case computed on the basis of a 365-day or 366-day year, as the case may be, for the actual number of days elapsed; and (ii) with respect to the issuance, amendment or transfer of each Letter of Credit and each payment of a drawing made thereunder (without duplication of the 83 fees payable under clause (i) above), customary documentary and processing charges payable directly to the applicable Issuing Lender for its own account in accordance with such Issuing Lender's standard schedule for such charges in effect at the time of such issuance, amendment, transfer or payment, as the case may be. For purposes of calculating any fees payable under clause (i) of this subsection 3.2, (1) the daily amount available to be drawn under any Letter of Credit shall be determined as of the close of business on any date of determination and (2) any amount described in such clause which is denominated in a currency other than Dollars shall be valued based on the applicable Exchange Rate for such currency as of the applicable date of determination. Promptly upon receipt by Administrative Agent of any amount described in clause (i)(b) of this subsection 3.2, Administrative Agent shall distribute to each Lender its Pro Rata Share of such amount. 3.3 Drawings and Reimbursement of Amounts Paid Under Letters of Credit. A. Responsibility of Issuing Lender With Respect to Drawings. In determining whether to honor any drawing under any Letter of Credit by the beneficiary thereof, the Issuing Lender shall be responsible only to examine the documents delivered under such Letter of Credit with reasonable care so as to ascertain whether they appear on their face to be in substantial compliance with the terms and conditions of such Letter of Credit. B. Reimbursement by Company of Amounts Paid Under Letters of Credit. In the event an Issuing Lender has determined to honor a drawing under a Letter of Credit issued by it, such Issuing Lender shall immediately notify Company and Administrative Agent, and Company shall reimburse such Issuing Lender on or before the Business Day immediately following the date on which such drawing is honored (the "Reimbursement Date") in an amount in Dollars (which amount, in the case of a drawing under a Letter of Credit which is denominated in a currency other than Dollars, shall be calculated by reference to the applicable Exchange Rate) and in same day funds equal to the amount of such honored drawing; provided that, anything contained in this Agreement to the contrary notwithstanding, (i) unless Company shall have notified Administrative Agent and such Issuing Lender prior to 11:00 A.M. (New York City time) on the date such drawing is honored that Company intends to reimburse such Issuing Lender for the amount of such honored drawing with funds other than the proceeds of Revolving Loans, Company shall be deemed to have given a timely Notice of Borrowing to Administrative Agent requesting Lenders to make Revolving Loans that are Base Rate Loans on the Reimbursement Date in an amount in Dollars (which amount, in the case of a drawing under a Letter of Credit which is denominated in a currency other than Dollars, shall be calculated by reference to the applicable Exchange Rate) equal to the amount of such honored drawing and (ii) subject to satisfaction or waiver of the conditions specified in subsection 4.2B, Lenders shall, on the Reimbursement Date, make Revolving Loans that are Base Rate Loans in the amount of such honored drawing, the proceeds of which 84 shall be applied directly by Administrative Agent to reimburse such Issuing Lender for the amount of such honored drawing; and provided, further that if for any reason proceeds of Revolving Loans are not received by such Issuing Lender on the Reimbursement Date in an amount equal to the amount of such honored drawing, Company shall reimburse such Issuing Lender, on demand, in an amount in same day funds equal to the excess of the amount of such honored drawing over the aggregate amount of such Revolving Loans, if any, which are so received. Nothing in this subsection 3.3B shall be deemed to relieve any Lender from its obligation to make Revolving Loans on the terms and conditions set forth in this Agreement, and Company shall retain any and all rights it may have against any Lender resulting from the failure of such Lender to make such Revolving Loans under this subsection 3.3B. C. Payment by Lenders of Unreimbursed Amounts Paid Under Letters of Credit. (i) Payment by Lenders. In the event that Company shall fail for any reason to reimburse any Issuing Lender as provided in subsection 3.3B in an amount (calculated, in the case of a drawing under a Letter of Credit denominated in a currency other than Dollars, by reference to the applicable Exchange Rate) equal to the amount of any drawing honored by such Issuing Lender under a Letter of Credit issued by it, such Issuing Lender shall promptly notify each other Lender of the unreimbursed amount of such honored drawing and of such other Lender's respective participation therein based on such Lender's Pro Rata Share. Each Lender shall make available to such Issuing Lender an amount equal to its respective participation, in Dollars and in same day funds, at the office of such Issuing Lender specified in such notice, not later than 12:00 Noon (New York City time) on the first business day (under the laws of the jurisdiction in which such office of such Issuing Lender is located) after the date notified by such Issuing Lender. In the event that any Lender fails to make available to such Issuing Lender on such business day the amount of such Lender's participation in such Letter of Credit as provided in this subsection 3.3C, such Issuing Lender shall be entitled to recover such amount on demand from such Lender together with interest thereon at the Federal Funds Effective Rate for three Business Days and thereafter at the Base Rate. Nothing in this subsection 3.3C shall be deemed to prejudice the right of any Lender to recover from any Issuing Lender any amounts made available by such Lender to such Issuing Lender pursuant to this subsection 3.3C in the event that it is determined by the final judgment of a court of competent jurisdiction that the payment with respect to a Letter of Credit by such Issuing Lender in respect of which payment was made by such Lender constituted gross negligence or willful misconduct on the part of such Issuing Lender. (ii) Distribution to Lenders of Reimbursements Received From Company. In the event any Issuing Lender shall have been reimbursed by other Lenders pursuant to subsection 3.3C(i) for all or any portion of any drawing 85 honored by such Issuing Lender under a Letter of Credit issued by it, such Issuing Lender shall distribute to each other Lender which has paid all amounts payable by it under subsection 3.3C(i) with respect to such honored drawing such other Lender's Pro Rata Share of all payments subsequently received by such Issuing Lender from Company in reimbursement of such honored drawing when such payments are received. Any such distribution shall be made to a Lender at its primary address set forth below its name on the appropriate signature page hereof or at such other address as such Lender may request. D. Interest on Amounts Paid Under Letters of Credit. (i) Payment of Interest by Company. Company agrees to pay to each Issuing Lender, with respect to drawings honored under any Letters of Credit issued by it, interest on the amount paid by such Issuing Lender in respect of each such honored drawing from the date such drawing is honored to but excluding the date such amount is reimbursed by Company (including any such reimbursement out of the proceeds of Revolving Loans pursuant to subsection 3.3B) at a rate equal to (a) for the period from the date such drawing is honored to but excluding the Reimbursement Date, the rate then in effect under this Agreement with respect to Revolving Loans that are Base Rate Loans and (b) thereafter, a rate which is 2% per annum in excess of the rate of interest otherwise payable under this Agreement with respect to Revolving Loans that are Base Rate Loans. Interest payable pursuant to this subsection 3.3D(i) shall be computed in the manner specified in subsection 2.2F for the computation of interest on Base Rate Loans and shall be payable on demand or, if no demand is made, on the date on which the related drawing under a Letter of Credit is reimbursed in full. (ii) Distribution of Interest Payments by Issuing Lender. Promptly upon receipt by any Issuing Lender of any payment of interest pursuant to subsection 3.3D(i) with respect to a drawing honored under a Letter of Credit issued by it, (a) such Issuing Lender shall distribute to each other Lender, out of the interest received by such Issuing Lender in respect of the period from the date such drawing is honored to but excluding the date on which such Issuing Lender is reimbursed for the amount of such drawing (including any such reimbursement out of the proceeds of Revolving Loans pursuant to subsection 3.3B), the amount that such other Lender would have been entitled to receive in respect of the letter of credit fee that would have been payable in respect of such Letter of Credit for such period pursuant to subsection 3.2 if no drawing had been honored under such Letter of Credit, and (b) in the event such Issuing Lender shall have been reimbursed by other Lenders pursuant to subsection 3.3C(i) for all or any portion of such honored drawing, such Issuing Lender shall distribute to each other Lender which has paid all amounts payable by it under subsection 3.3C(i) with respect to such honored drawing such other Lender's Pro Rata Share of any interest received by such Issuing Lender in respect of that portion of such honored drawing so 86 reimbursed by other Lenders for the period from the date on which such Issuing Lender was so reimbursed by other Lenders to but excluding the date on which such portion of such honored drawing is reimbursed by Company. Any such distribution shall be made to a Lender at its primary address set forth below its name on the appropriate signature page hereof or at such other address as such Lender may request. 3.4 Obligations Absolute. The obligation of Company to reimburse each Issuing Lender for drawings honored under the Letters of Credit issued by it and to repay any Revolving Loans made by Lenders pursuant to subsection 3.3B and the obligations of Lenders under subsection 3.3C(i) shall be unconditional and irrevocable and shall be paid strictly in accordance with the terms of this Agreement under all circumstances including any of the following circumstances: (i) any lack of validity or enforceability of any Letter of Credit; (ii) the existence of any claim, set-off, defense or other right which Company or any Lender may have at any time against a beneficiary or any transferee of any Letter of Credit (or any Persons for whom any such transferee may be acting), any Issuing Lender or other Lender or any other Person or, in the case of a Lender, against Company, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between Company or one of its Subsidiaries and the beneficiary for which any Letter of Credit was procured); (iii) any draft or other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (iv) payment by the applicable Issuing Lender under any Letter of Credit against presentation of a draft or other document which does not substantially comply with the terms of such Letter of Credit; (v) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of Company or any of its Subsidiaries; (vi) any breach of this Agreement or any other Loan Document by any party thereto; (vii) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing; or 87 (viii) the fact that an Event of Default or a Potential Event of Default shall have occurred and be continuing; provided, in each case, that payment by the applicable Issuing Lender under the applicable Letter of Credit shall not have constituted gross negligence or willful misconduct of such Issuing Lender under the circumstances in question. 3.5 Indemnification; Nature of Issuing Lenders' Duties. A. Indemnification. In addition to amounts payable as provided in subsection 3.6, Company hereby agrees to protect, indemnify, pay and save harmless each Issuing Lender from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable fees, expenses and disbursements of counsel and allocated costs of internal counsel) which such Issuing Lender may incur or be subject to as a consequence, direct or indirect, of (i) the issuance of any Letter of Credit by such Issuing Lender, other than as a result of (a) the gross negligence or willful misconduct of such Issuing Lender as determined by a final judgment of a court of competent jurisdiction or (b) subject to the following clause (ii), the wrongful dishonor by such Issuing Lender of a proper demand for payment made under any Letter of Credit issued by it or (ii) the failure of such Issuing Lender to honor a drawing under any such Letter of Credit as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or governmental authority (all such acts or omissions herein called "Governmental Acts"). B. Nature of Issuing Lenders' Duties. As between Company and any Issuing Lender, Company assumes all risks of the acts and omissions of, or misuse of the Letters of Credit issued by such Issuing Lender by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, such Issuing Lender shall not be responsible for: (i) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for and issuance of any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such 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; (iii) failure of the beneficiary of any such Letter of Credit to comply fully with any conditions required in order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or of the proceeds thereof; (vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or (viii) any consequences arising from causes beyond the control of such Issuing Lender, including any Governmental Acts, and none of 88 the above shall affect or impair, or prevent the vesting of, any of such Issuing Lender's rights or powers hereunder. In furtherance and extension and not in limitation of the specific provisions set forth in the first paragraph of this subsection 3.5B, any action taken or omitted by any Issuing Lender under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put such Issuing Lender under any resulting liability to Company. Notwithstanding anything to the contrary contained in this subsection 3.5, Company shall retain any and all rights it may have against any Issuing Lender for any liability arising solely out of the gross negligence or willful misconduct of such Issuing Lender. 3.6 Increased Costs and Taxes Relating to Letters of Credit. Subject to the provisions of subsection 2.7B (which shall be controlling with respect to the matters covered thereby), in the event that any Issuing Lender or Lender shall reasonably determine (which determination shall, absent clearly demonstrable error, be final and conclusive and binding upon all parties hereto) that the introduction or adoption (after the date hereof) of any law, treaty or governmental rule, regulation or order, or that any change (after the date hereof) therein or in the interpretation, administration or application thereof, or that any determination (after the date hereof) by a court or governmental authority, or that compliance by any Issuing Lender or Lender with any guideline, request or directive issued or made (after the date hereof) by any central bank or other governmental or quasi-governmental authority (whether or not having the force of law), in any such case: (i) subjects such Issuing Lender or Lender (or its applicable lending or letter of credit office) to any additional Tax (other than any Tax on the overall net income of such Issuing Lender or Lender) with respect to the issuing or maintaining of any Letters of Credit or the purchasing or maintaining of any participations therein or any other obligations under this Section 3, whether directly or by such being imposed on or suffered by any particular Issuing Lender; (ii) imposes, modifies or holds applicable any reserve (including any marginal, emergency, supplemental, special or other reserve), special deposit, compulsory loan, FDIC insurance or similar requirement in respect of any Letters of Credit issued by any Issuing Lender or participations therein purchased by any Lender; or (iii) imposes any other condition (other than with respect to a Tax matter) on or affecting such Issuing Lender or Lender (or its applicable lending or letter of 89 credit office) regarding this Section 3 or any Letter of Credit or any participation therein; and the result of any of the foregoing is to increase the cost to such Issuing Lender or Lender of agreeing to issue, issuing or maintaining any Letter of Credit or agreeing to purchase, purchasing or maintaining any participation therein or to reduce any amount received or receivable by such Issuing Lender or Lender (or its applicable lending or letter of credit office) with respect thereto; then, in any case, Company shall pay to such Issuing Lender or Lender, promptly after receipt of the statement referred to in the next sentence, such additional amount or amounts as may be necessary to compensate such Issuing Lender or Lender for any such increased cost or reduction in amounts received or receivable hereunder. Such Issuing Lender or Lender shall deliver to Company (with a copy to Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to such Issuing Lender or Lender under this subsection 3.6, which statement shall be conclusive and binding upon all parties hereto absent clearly demonstrable error. Section 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT The obligations of Lenders to make Loans and the issuance of Letters of Credit hereunder are subject to the satisfaction of the following conditions. 4.1 Conditions to Initial Loans. The obligations of Lenders to make the initial Term Loans and any Revolving Loans and Swing Line Loans to be made on the Closing Date and the issuance of any Letters of Credit to be issued on the Closing Date are, in addition to the conditions precedent specified in subsection 4.2 (in the case of any such Loans) or 4.3 (in the case of any such Letters of Credit), subject to prior or concurrent satisfaction of the following conditions: A. Loan Party Documents. On or before the Closing Date, Company shall, and shall cause each other Loan Party to, deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender and its counsel) the following with respect to Company or such Loan Party, as the case may be, each, unless otherwise noted, dated the Closing Date: (i) Certified copies of the Certificate or Articles of Incorporation of such Person (or, in the case of each of U.K. Borrowers, its Memorandum and Articles of Association), together (in the case of Company only) with a good standing certificate from the Secretary of State of each of the States of Delaware and Connecticut, each dated a recent date prior to the Closing Date; 90 (ii) Copies of the Bylaws of such Person, certified as of the Closing Date by such Person's corporate secretary or an assistant secretary; (iii) Resolutions of the Board of Directors of such Person approving and authorizing the execution, delivery and performance of the Loan Documents and Related Agreements to which it is a party, certified as of the Closing Date by the corporate secretary or an assistant secretary of such Person as being in full force and effect without modification or amendment; (iv) Signature and incumbency certificates of the officers of such Person executing the Loan Documents to which it is a party; and (v) Executed originals of the Loan Documents to which such Person is a party. B. No Material Adverse Effect. No material adverse change has occurred since December 31, 1996 with respect to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Company and its Subsidiaries, taken as a whole. C. Corporate and Capital Structure, Ownership, Etc. (i) Corporate Structure. The corporate organizational structure of Newco and of Company and its Subsidiaries, both before and after giving effect to the Recapitalization, shall be reasonably satisfactory to Administrative Agent. (ii) Capital Structure and Ownership. The capital structure and ownership of Newco and of Company, both before and after giving effect to the Recapitalization, shall be reasonably satisfactory to Administrative Agent. D. Proceeds of Debt and Equity Capitalization of Newco and Company. (i) Equity Capitalization of Newco. On or before the Closing Date, Affiliates of KKR shall have made an aggregate cash investment in Newco in an amount equal to the Newco Equity Amount in exchange for all of the outstanding common stock of Newco. (ii) Issuance of New Sub Debt by Company. On or before the Closing Date, Company shall received not less than $240,000,000 in gross proceeds from the issuance and sale of the New Sub Debt. 91 E. Related Agreements. (i) Form of New Sub Debt Indenture. The New Sub Debt Indenture shall be in the form of Exhibit 4.1 to the Registration Statement of Company on Form S-3 (Registration No. 333-22521) filed with the SEC on February 28, 1997, as amended by Amendment No. 1 and Amendment No. 2 thereto, with such changes thereto, if any, that have been approved by Administrative Agent or that would otherwise have been permitted to be made pursuant to subsection 7.9 if the New Sub Debt were issued and outstanding at the time of any such change. (ii) Related Agreements in Full Force and Effect. Administrative Agent shall have received a fully executed or conformed copy of the Merger Agreement and the New Sub Debt Indenture and any documents executed in connection therewith, and each Related Agreement shall be in full force and effect and no provision thereof shall have been modified or waived in any respect determined by Administrative Agent to be material, in each case without the consent of Administrative Agent. F. Matters Relating to Existing Indebtedness of Company and its Subsidiaries. (i) Termination of Existing Credit Agreement and Related Liens; Existing Letters of Credit. On the Closing Date, Company and its Subsidiaries shall have (a) repaid in full all Indebtedness outstanding under the Existing Credit Agreement, (b) terminated any commitments to lend or make other extensions of credit thereunder, (c) delivered to Administrative Agent all documents or instruments necessary to release all Liens securing Indebtedness or other obligations of Company and its Subsidiaries thereunder, and (d) made arrangements satisfactory to Administrative Agent with respect to the cancellation of any letters of credit outstanding thereunder or the issuance of Letters of Credit to support the obligations of Company and its Subsidiaries with respect thereto. (ii) Consent Solicitation. Pursuant to the Consent Solicitation, Company shall have obtained all such consents and amendments with respect to the Existing Subordinated Note Indenture as may be required to permit the consummation of the Recapitalization, the related financings (including the incurrence of the Obligations hereunder) and the other transactions contemplated by the Loan Documents. (iii) Consummation of Debt Tender Offer. Company shall have repurchased all of the Existing Subordinated Notes tendered in the Debt Tender Offer. (iv) Redemption of Existing Senior Notes. Company shall have either (a) redeemed all of the Existing Senior Notes for aggregate consideration, including 92 accrued interest and premiums, not to exceed $111,000,000 or (b) caused irrevocable notice of such redemption to be given in accordance with the terms of the Existing Senior Note Indenture and provided evidence satisfactory to Administrative Agent that the amount of the Delayed-Draw Term Loans is sufficient to pay the aggregate consideration in respect of such redemption (which amount shall not exceed the amount set forth in the foregoing clause (a)). (v) Existing Indebtedness to Remain Outstanding. Administrative Agent shall have received an Officer's Certificate of Company stating that, after giving effect to the transactions described in this subsection 4.1F, the Indebtedness and unfunded credit facilities of Company and its Subsidiaries (other than Indebtedness and unfunded credit facilities under the Loan Documents and the New Sub Debt) shall consist of the aggregate principal amount of outstanding Indebtedness and commitments to lend described in Schedule 7.1 annexed hereto. G. Necessary Governmental Authorizations and Consents; Expiration of Waiting Periods, Etc. Company shall have obtained all Governmental Authorizations and all consents of other Persons, in each case that are necessary or advisable in connection with the Recapitalization, the other transactions contemplated by the Loan Documents and the Related Agreements, and the continued operation of the business conducted by Company and its Subsidiaries in substantially the same manner as conducted prior to the consummation of the Recapitalization, and each of the foregoing shall be in full force and effect, in each case other than those the failure to obtain or maintain which, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the Recapitalization or the financing thereof. H. Consummation of Recapitalization. (i) The Merger Agreement shall not have been amended and the fulfillment of any conditions set forth therein shall not have been waived, in each case unless such amendment or waiver is not adverse in any material respect to the interests of Lenders; and (ii) the Merger shall have become effective in accordance with the terms of the Merger Agreement and the laws of the State of Delaware. I. Security Interests in Pledged Collateral. Administrative Agent and Collateral Agent shall each have received evidence satisfactory to it that Company shall have taken or caused to be taken all such actions, executed and delivered or caused to be executed and delivered all such agreements, documents and instruments, and made or caused to be made all such registrations, filings and recordings (other than the filing or recording of items described in clause (c) below and the registration of the Liens created 93 by the Pledge Agreement entered into by Company on the Closing Date in respect of the stock of UK Holding with the Registrar of Companies under Section 395 of the Companies Act) that may be necessary or, in the opinion of Collateral Agent, desirable in order to create in favor of Collateral Agent, for the benefit of Lenders, a valid and (upon such filing and recording) perfected First Priority security interest in the entire Pledged Collateral. Such actions shall include the following: (a) Schedules to Pledge Agreements. Delivery to Collateral Agent of accurate and complete schedules to the Pledge Agreements; (b) Stock Certificates. Delivery to Collateral Agent of certificates to the extent applicable (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to Collateral Agent) representing all capital stock included in the Pledged Collateral; and (c) UCC Financing Statements. Delivery to Collateral Agent of a UCC financing statement duly executed by Company with respect to certain Collateral under the Pledge Agreements, for filing in the jurisdiction where Company maintains its "chief executive office" (as that term is defined in the UCC as in effect in the State of New York). J. Financial Statements; Pro Forma Balance Sheet. On or before the Closing Date, Lenders shall have received from Company (i) audited financial statements of Company and its Subsidiaries for Fiscal Years 1994, 1995 and 1996, consisting of balance sheets and the related consolidated statements of income, stockholders' equity and cash flows for such Fiscal Years, and (ii) a pro forma consolidated balance sheet of Company and its Subsidiaries as of the date of the most recent balance sheet filed by Company with the SEC in connection with the Recapitalization, prepared in accordance with GAAP and reflecting the consummation of the Recapitalization, the related financings and the other transactions contemplated by the Loan Documents and the Related Agreements, which pro forma financial statements shall be in form and substance reasonably satisfactory to Lenders. K. Solvency Assurances. On the Closing Date, Administrative Agent and Lenders shall have received (i) a letter from Valuation Research Corporation, dated the Closing Date and addressed to Administrative Agent and Lenders, in form and substance satisfactory to Administrative Agent and with appropriate attachments, and (ii) a Financial Condition Certificate dated the Closing Date, substantially in the form of Exhibit XIV annexed hereto and with appropriate attachments, in each case demonstrating that, after giving effect to the consummation of the Recapitalization, the related financings and the other transactions contemplated by the Loan Documents and the Related Agreements, Company will be solvent. 94 L. Opinions of Counsel to Loan Parties. Lenders and their respective counsel shall have received originally executed copies of one or more favorable written opinions of (i) Edward G. Wetmore, general counsel for Company, (ii) Simpson Thacher & Bartlett, special counsel for Loan Parties, and (iii) Ashurst Morris Crisp, U.K. counsel to U.K. Borrowers, in each case dated as of the Closing Date and setting forth substantially the matters in the opinions designated in Exhibit X annexed hereto, and Company hereby requests such counsel for Loan Parties to deliver such opinions. M. Opinions of Administrative Agent's Counsel. Lenders shall have received originally executed copies of one or more favorable written opinions of O'Melveny & Myers, counsel to Administrative Agent, dated as of the Closing Date, substantially in the form of Exhibit XI annexed hereto and as to such other matters as Administrative Agent acting on behalf of Lenders may reasonably request. N. Opinions of Counsel Delivered Under Related Agreements. Administrative Agent and its counsel shall have received copies of each of the opinions of counsel delivered to the parties under the Related Agreements, together with a letter from each such counsel (if available) authorizing Lenders to rely upon such opinion to the same extent as though it were addressed to Lenders. O. Fees. Company shall have paid to Administrative Agent, for distribution (as appropriate) to Administrative Agent, Documentation Agent, Syndication Agent and Lenders, the fees payable on the Closing Date referred to in subsection 2.3. P. Representations and Warranties; Performance of Agreements. Company shall have delivered to Administrative Agent an Officer's Certificate, in form and substance satisfactory to Administrative Agent, to the effect that the representations and warranties in Section 5 are true and correct in all material respects on and as of the Closing Date to the same extent as though made on and as of that date (or, to the extent such representations and warranties specifically relate to an earlier date, that such representations and warranties were true, correct and complete in all material respects on and as of such earlier date). 4.2 Conditions to All Loans. The obligations of Lenders to make Loans on each Funding Date are subject to the following further conditions precedent: A. Administrative Agent shall have received on or before that Funding Date, in accordance with the provisions of subsection 2.1B, an executed Notice of Borrowing, in each case signed by the chief executive officer, the chief financial officer or the treasurer of the applicable Borrower or by any officer of such Borrower designated by any of the above-described officers on behalf of such Borrower in a writing delivered to Administrative Agent; and 95 B. as of that Funding Date: (i) The representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects on and as of that Funding Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date; and (ii) No event shall have occurred and be continuing or would result from the consummation of the borrowing contemplated by such Notice of Borrowing that would constitute an Event of Default or a Potential Event of Default. 4.3 Conditions to Letters of Credit. The issuance of any Letter of Credit hereunder (whether or not the applicable Issuing Lender is obligated to issue such Letter of Credit) is subject to the following conditions precedent: A. On or before the date of issuance of such Letter of Credit, Administrative Agent shall have received, in accordance with the provisions of subsection 3.1B(i), an originally executed Notice of Request for Issuance of Letter of Credit, in each case signed by the chief executive officer, the chief financial officer or the treasurer of Company or by any officer of Company designated by any of the above-described officers on behalf of Company in a writing delivered to Administrative Agent, together with all other information specified in subsection 3.1B(i); and B. On the date of issuance of such Letter of Credit, all conditions precedent described in subsection 4.2B shall be satisfied to the same extent as if the issuance of such Letter of Credit were the making of a Loan and the date of issuance of such Letter of Credit were a Funding Date. Section 5. COMPANY'S REPRESENTATIONS AND WARRANTIES In order to induce Lenders to enter into this Agreement and to make the Loans, to induce Issuing Lenders to issue Letters of Credit and to induce other Lenders to purchase participations therein, Company represents and warrants to each Lender, on the date of this Agreement, on each Funding Date and on the date of issuance of each Letter of Credit, and each U.K. Borrower represents as to itself on the date of this Agreement and on the Closing Date, that the following statements are true, correct and complete: 96 5.1 Organization, Powers, Qualification, Good Standing, Business and Subsidiaries. A. Organization and Powers. Each Borrower and each Material Subsidiary is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation as specified in Schedule 5.1 annexed hereto and has all requisite corporate power and authority to own and operate its properties and to carry on its business as now conducted and as proposed to be conducted. Each Loan Party has all requisite corporate power and authority to enter into the Loan Documents and Related Agreements to which it is a party and to carry out the transactions contemplated thereby. As of the Closing Date, each U.K. Borrower is a direct wholly-owned Subsidiary of Company. B. Qualification and Good Standing. Each Borrower and each Material Subsidiary is qualified to do business and in good standing in every jurisdiction where its assets are located and wherever necessary to carry out its business and operations, except to the extent that the failure to be so qualified or in good standing has not had and will not have a Material Adverse Effect. C. Subsidiaries. All of the Subsidiaries and Unrestricted Subsidiaries of Company as of the Closing Date are identified in Schedule 5.1 annexed hereto and, to the best knowledge of Company, each Material Subsidiary as of the Closing Date has been so designated on said Schedule 5.1. 5.2 Authorization of Borrowing, etc. A. Authorization of Borrowing. The execution, delivery and performance of the Loan Documents and the Related Agreements have been duly authorized by all necessary corporate action on the part of each Loan Party that is a party thereto. B. No Conflict. The execution, delivery and performance by Loan Parties of the Loan Documents to which they are parties and the consummation of the transactions contemplated by the Loan Documents and the Related Agreements do not and will not (i) violate any provision of any material law or any material governmental rule or regulation applicable to Company or any of its Material Subsidiaries or any other Loan Party, the Certificate or Articles of Incorporation or Bylaws (or equivalent constitutional documents) of Company or any of its Subsidiaries, or any material order, judgment or decree of any court or other agency of government binding on Company or any of its Material Subsidiaries or any other Loan Party, (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any Contractual Obligation (other than the Existing Senior Note Indenture) of Company or any of its Material Subsidiaries or any other Loan Party, or (iii) result in or require the creation or imposition of any Lien under any such Contractual Obligation upon any of the properties 97 or assets of Company or any of its Subsidiaries (other than any Liens created under any of the Loan Documents in favor of Administrative Agent on behalf of Lenders). C. Governmental Consents. The execution, delivery and performance by Loan Parties of the Loan Documents to which they are parties and the consummation of the transactions contemplated by the Loan Documents and the Related Agreements do not and will not require any registration with, consent or approval of, or notice to, or other action to, with or by, any federal, state or other governmental authority or regulatory body except (i) any thereof that have been obtained and are in full force and effect and (ii) as of the Closing Date with respect to the consummation of the Recapitalization, any thereof which the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect. D. Binding Obligation. Each of the Loan Documents has been duly executed and delivered by each Loan Party that is a party thereto and is the legally valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors' rights generally or by equitable principles relating to enforceability. 5.3 Financial Condition. Company has heretofore delivered to Lenders, at Lenders' request, the audited consolidated balance sheet of Company and its Subsidiaries as at December 31, 1996 and the related consolidated statements of income, stockholders' equity and cash flows of Company and its Subsidiaries for the Fiscal Year then ended. All such statements were prepared in conformity with GAAP except as otherwise noted therein and fairly present, in all material respects, the financial position (on a consolidated basis) of the entities described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated basis) of the entities described therein for each of the periods then ended. 5.4 No Material Adverse Effect. Since December 31, 1996, no event or change has occurred that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect. 5.5 Title to Properties; Liens. Company and each of its Subsidiaries have good title to, or leasehold interests in, all properties that are necessary for the conduct of their respective businesses as now conducted and as proposed to be conducted, free and clear of all Liens (other than any Liens permitted by this Agreement), except where the failure to have such good title 98 or leasehold interests could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. 5.6 Litigation; Adverse Facts. Except as set forth in Schedule 5.6 annexed hereto, there are no actions, suits, proceedings, arbitrations or governmental investigations (whether or not purportedly on behalf of Company or any of its Subsidiaries) at law or in equity, or before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign (including any Environmental Claims) that are pending or, to the knowledge of Company, threatened against or affecting Company or any of its Subsidiaries that, individually or in the aggregate (taking into consideration, among other things, the ability of Company and its Subsidiaries to obtain indemnification in respect thereof from Persons that are willing and able to honor any existing indemnification obligations with respect thereto), could reasonably be expected to result in a Material Adverse Effect. 5.7 Payment of Taxes. Each of Company, each of its Subsidiaries and each other corporation (each a "Consolidated Corporation") with whom Company or any of its Subsidiaries joins in the filing of a consolidated return has filed all Federal income tax returns and other material tax returns and reports, domestic and foreign, required to be filed by it, and has paid all material taxes, assessments, fees and other governmental charges levied or imposed upon it or its respective properties, income or assets to the extent the same have become due and payable, except those which are not yet delinquent or which are being contested in good faith. Each of Company, each of its Subsidiaries and each Consolidated Corporation has paid, or has provided adequate reserves (in the good faith judgment of the management of Company) in accordance with GAAP (or, in the case of a Foreign Subsidiary, appropriate reserves under generally accepted accounting principles in the applicable jurisdiction), for the payment of, all such material taxes, assessments, fees and charges relating to all prior taxable years and the current taxable year of Company, each of its Subsidiaries and each Consolidated Corporation. To the best knowledge of Company, there is no proposed tax assessment against Company, any of its Subsidiaries or any Consolidated Corporation that could reasonably be expected to have a Material Adverse Effect. 5.8 Governmental Regulation. Neither the making of any extension of credit hereunder, nor the use of any of the proceeds thereof, will violate the provisions of Regulation G, T, U or X of the Board of Governors of the Federal Reserve System. Company is not an "investment company" within the meaning of the Investment Company Act of 1940. 99 5.9 Employee Benefit Plans. A. Company and each of its Subsidiaries is in compliance with all applicable provisions of ERISA, the Internal Revenue Code and other applicable federal, state or foreign law with respect to each Plan, and has performed all of its obligations under each Plan, except to the extent that failure to comply, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Company, each of its Subsidiaries and each ERISA Affiliate has made all required contributions to any Plan subject to Section 412 of the Internal Revenue Code, except to the extent that a failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Internal Revenue Code has been made with respect to any Plan. B. There are no pending or, to the best knowledge of Company, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Pension Plan which, individually or in the aggregate, have resulted or could reasonably be expected to result in a Material Adverse Effect. C. (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability in an amount which, individually or in the aggregate for all Pension Plans (excluding for purposes of such computation any Pension Plans with respect to which assets exceed benefit liabilities), could reasonably be expected to have a Material Adverse Effect if such Pension Plan or Pension Plans were then terminated, unless such Pension Plan is not reasonably likely to be terminated; and (iii) neither Company nor any of its Subsidiaries nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. 5.10 Environmental Protection. Company and each of its Subsidiaries is in compliance with all applicable Environmental Laws in respect of the conduct of its business and the ownership of its property, except such noncompliance as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Without limiting the effect of the preceding sentence: (a) neither Company nor any of its Subsidiaries has received a complaint, order, citation, notice or other written communication with respect to the existence or alleged existence of a violation of, or liability arising under, any Environmental Law, the outcome of which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect; and 100 (b) to the best of Company's knowledge, after due inquiry, there are no environmental, health or safety conditions existing or reasonably expected to exist at any real property owned, operated, leased or used by Company or any of its existing or former Subsidiaries or any of their respective predecessors, including off-site treatment or disposal facilities used by Company or its existing or former Subsidiaries for wastes treatment or disposal, which could reasonably be expected to require any construction or other capital costs or clean-up obligations to be incurred prior to the final scheduled maturity of the Tranche C Term Loans in order to assure compliance with any Environmental Law, including provisions regarding clean-up, to the extent that any of such conditions, construction or other capital costs or clean-up obligations, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. 5.11 Disclosure. All factual information (taken as a whole) furnished by or on behalf of Company or any of its Subsidiaries to Administrative Agent or any Lender in writing on or before the Closing Date (including any such information contained in the Confidential Information Memorandum or in any Loan Document or Related Agreement or in any other document, certificate or written statement furnished to Lenders by or on behalf of Company or any of its Subsidiaries) for use in connection with the transactions contemplated by this Agreement is true and correct in all material respects and does not omit to state a material fact necessary in order to make the statements contained herein and therein, taken as a whole, not misleading at such time in light of the circumstances in which the same were made, it being understood that, for purposes of this subsection 5.11, such factual information does not include projections and pro forma financial information. Any projections and pro forma financial information contained in such materials are based upon good faith estimates and assumptions believed by Company to be reasonable at the time made, it being recognized by Lenders that such projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ from the projected results. Section 6. AFFIRMATIVE COVENANTS Company covenants and agrees that, so long as any of the Commitments hereunder shall remain in effect and until payment in full of all of the Loans and other Obligations and the cancellation or expiration of all Letters of Credit, unless Requisite Lenders shall otherwise give prior written consent, Company shall perform, and shall cause each of its Subsidiaries to perform, all covenants in this Section 6. Each U.K. Borrower covenants and agrees that, so long as the Tranche A Term Loan Commitments hereunder shall remain in effect and until payment in full of all of the Sterling Loans made to such U.K. Borrower and all Obligations of such U.K. Borrower relating thereto, unless Requisite Lenders shall otherwise give prior written consent, such U.K. Borrower 101 shall perform, and shall cause each of its Subsidiaries to perform, all covenants applicable to it and its Subsidiaries in this Section 6. 6.1 Financial Statements and Other Reports. Company will deliver to Administrative Agent and Lenders: (i) Quarterly Financials: (a) no later than the date on which such financial statements are filed with the SEC, the consolidated balance sheet of Company, its Subsidiaries and its Unrestricted Subsidiaries as at the end of the first three Fiscal Quarters of each Fiscal Year and the related consolidated statements of income, stockholders' equity and cash flows of Company, its Subsidiaries and its Unrestricted Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and (b) promptly when available but in any event no later than 60 days after the end of the first three Fiscal Quarters of each Fiscal Year, the consolidated balance sheet of Company and its Subsidiaries as at the end of each Fiscal Quarter and the related consolidated statements of income, stockholders' equity and cash flows of Company and its Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, setting forth in each case (under both clauses (a) and (b) above) in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year, all in reasonable detail and certified (in the case of both clauses (a) and (b) above) by the chief financial officer of Company that they fairly present, in all material respects, the financial condition of Company, its Subsidiaries and its Unrestricted Subsidiaries or Company and its Subsidiaries, as the case may be, as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments; (ii) Year-End Financials: (a) no later than the date on which such financial statements are filed with the SEC, the consolidated balance sheet of Company, its Subsidiaries and its Unrestricted Subsidiaries as at the end of each Fiscal Year and the related consolidated statements of income, stockholders' equity and cash flows of Company, its Subsidiaries and its Unrestricted Subsidiaries for such Fiscal Year, (b) promptly when available but in any event no later than 120 days after the end of each Fiscal Year, the consolidated balance sheet of Company and its Subsidiaries as at the end of such Fiscal Year and the related consolidated statements of income, stockholders' equity and cash flows of Company and its Subsidiaries for such Fiscal Year, setting forth in each case (under both clauses (a) and (b) above) in comparative form the corresponding figures for the previous Fiscal Year, all in reasonable detail and certified (in the case of both clauses (a) and (b) above) by the chief financial officer of Company that they fairly present, in all material respects, the financial condition of Company and its Subsidiaries as at 102 the end of such Fiscal Year and the results of their operations and their cash flows for such Fiscal Year, and (c) in the case of both clauses (a) and (b) above) a report thereon of a firm of independent certified public accountants of recognized national standing selected by Company, which report shall be unqualified as to the scope of audit or as to the going concern status of Company, its Subsidiaries and its Unrestricted Subsidiaries or Company and its Subsidiaries, as the case may be (in either case taken as a whole), and shall state that such consolidated financial statements fairly present, in all material respects, the consolidated financial condition of Company, its Subsidiaries and its Unrestricted Subsidiaries or Company and its Subsidiaries, as the case may be, as at the end of such Fiscal Year and the results of their operations and their cash flows for such Fiscal Year in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such financial statements) and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; (iii) Officers' and Compliance Certificates: together with each delivery of financial statements of Company and its Subsidiaries pursuant to subdivisions (i) and (ii) above, (a) an Officer's Certificate of Company stating that the signers do not have knowledge of the existence, as at the date of such Officer's Certificate, of any condition or event that constitutes an Event of Default or Potential Event of Default, or, if any such condition or event exists, specifying the nature and period of existence thereof and what action Company has taken, is taking and proposes to take with respect thereto; (b) a Compliance Certificate demonstrating in reasonable detail compliance during and at the end of the applicable accounting periods with the covenants set forth in subsection 7.6 and with any specific dollar amounts specified in respect of any restrictions contained in any other provisions of Section 7; (c) in the event the identity of any of the Subsidiaries or Unrestricted Subsidiaries of Company has changed since the Closing Date (or, if applicable, since the date of the most recent Officer's Certificate delivered to Lenders in accordance with this clause (c)), an Officer's Certificate setting forth such change; (d) the amount of any Pro Forma Adjustment not previously set forth in any Pro Forma Adjustment Certificate or any change in the amount of a Pro Forma Adjustment set forth in any Pro Forma Adjustment Certificate previously provided and, in either case, in reasonable detail, the calculations and basis therefor, and (e) at the time of the delivery of the financial statements pursuant to subdivision (ii) above, the Available Amount as at the end of the Fiscal Year to which such statements relate; (iv) Accountants' Certification: together with each delivery of consolidated financial statements of Company and its Subsidiaries pursuant to subdivision (ii) above, a written statement by the independent certified public accountants giving the report thereon stating whether, in connection with their audit examination, any condition or event that constitutes an Event of Default 103 under subsection 7.6 has come to their attention and, if such a condition or event has come to their attention, specifying the nature thereof, except to the extent that the delivery of such statement would be prohibited by professional auditing standards applicable to such matters; (v) SEC Filings: promptly after the transmission thereof by Company or any of its Subsidiaries to the SEC, copies of any filings on Form 10-K, 10-Q, or 8-K and any effective registration statements (and, upon the effectiveness thereof, any material amendments thereto) filed with the SEC (but not any exhibits to any such registration statement or amendment (except as provided below) or any registration statement on Form S-8), and copies of all financial statements, proxy statements, notices and reports that Company or any of its Subsidiaries actually sends to the holders of any publicly-issued debt Securities of Company or any of its Subsidiaries (including the Subordinated Indebtedness) in their capacity as such holders (in each case to the extent not theretofore delivered to Lenders pursuant to this Agreement and in each case including, to the extent requested by Administrative Agent, any schedules and exhibits thereto), in each case as so transmitted to the SEC; (vi) Events of Default, etc.: promptly upon any Responsible Officer of Company obtaining actual knowledge of (a) any condition or event that constitutes an Event of Default or Potential Event of Default or (b) any acceleration, redemption or purchase demands or notices provided by the trustee for, or any event of default under, any Subordinated Indebtedness, a notice specifying the nature and period of existence of such condition or event or specifying the notice given by such trustee or the nature of such event of default, and what action Company has taken, is taking and proposes to take with respect thereto; (vii) Litigation or Other Proceedings: promptly upon any Responsible Officer of Company obtaining actual knowledge of (X) the institution of any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration against or affecting Company or any of its Subsidiaries or any property of Company or any of its Subsidiaries (collectively, "Proceedings") not previously disclosed in writing by Company to Lenders or (Y) any material development in any Proceeding that, in any such case, could reasonably be expected to give rise to a Material Adverse Effect, written notice thereof together with such other information as may be reasonably available to Company to enable Lenders and their counsel to evaluate such matters; (viii) ERISA Events: promptly upon any Responsible Officer of Company obtaining knowledge of the occurrence or forthcoming occurrence of any ERISA Event, a written notice specifying the nature thereof and what action Company, any of its Subsidiaries or any of their respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto; and, promptly upon receipt thereof, 104 copies of any notice received by Company, any of its Subsidiaries or any of their respective ERISA Affiliates from the Internal Revenue Service, the Department of Labor or the PBGC or from a Multiemployer Plan sponsor concerning any ERISA Event; (ix) Financial Plans: as soon as practicable and in any event no later than 60 days after the beginning of each Fiscal Year, consolidated operating and related budgets for Company and its Subsidiaries for each Fiscal Quarter of such Fiscal Year (the "Financial Plan" for such Fiscal Year), in reasonable detail as customarily prepared by management of Company for its internal use and setting forth an explanation of the principal assumptions on which such budgets are based; (x) Environmental Audits and Reports: as soon as practicable following receipt thereof, copies of all environmental audits, investigations, analyses and reports of any kind or character, whether prepared by personnel of Company or any of its Subsidiaries or by independent consultants, governmental authorities or any other Persons, with respect to significant environmental matters at any Real Estate (as defined in subsection 6.1(xi)(1)) which, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect or with respect to any Environmental Claims which, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect; (xi) Notice of Certain Environmental Matters: promptly upon any Responsible Officer of Company obtaining knowledge of any one or more of the following environmental matters the existence of which, either individually or when aggregated with all other such matters, would reasonably be expected to result in a Material Adverse Effect, a written notice specifying in reasonable detail the nature thereof and what action Company and its Subsidiaries have taken, are taking or propose to take with respect thereto: (1) any pending or threatened Environmental Claim against Company or any of its Subsidiaries or any land, buildings and improvements owned or leased by Company or any of its Subsidiaries (but excluding all operating fixtures and equipment, whether or not incorporated into improvements) (collectively, "Real Estate"); (2) any condition or occurrence that (x) results in noncompliance by Company or any of its Subsidiaries with any applicable Environmental Law or (y) could reasonably be anticipated to form the basis of an Environmental Claim against Company or any of its Subsidiaries or any Real Estate; (3) any condition or occurrence on any Real Estate that could reasonably be anticipated to cause such Real Estate to be subject to any restrictions 105 on the ownership, occupancy, use or transferability of such Real Estate under any Environmental Law; or (4) the taking of any removal or remedial action in response to the actual or alleged presence of any Hazardous Material on any Real Estate; (xii) Pro Forma Adjustment Certificate: not later than the consummation of any Acquisition by Company or any of its Subsidiaries for which there shall be a Pro Forma Adjustment, an Officer's Certificate of Company setting forth the amount of such Pro Forma Adjustment and, in reasonable detail, the calculations and basis therefor; and (xiii) Other Information: with reasonable promptness, such other information and data with respect to Company or any of its Subsidiaries as from time to time may be reasonably requested by Administrative Agent on its own behalf or on behalf of Requisite Lenders. 6.2 Corporate Existence, etc. Except as permitted under subsection 7.7, each Borrower will, and will cause each of its Subsidiaries to, at all times preserve and keep in full force and effect (i) its corporate existence (except, in the case of a Subsidiary of Company (other than U.K. Borrowers) only, to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect) and (ii) all rights and franchises material to its business (except, in any case, to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect). 6.3 Payment of Taxes and Claims; Tax Consolidation Each Borrower will, and will cause each of its Subsidiaries to, pay all material taxes, assessments and other governmental charges imposed upon it or any of its properties or assets or in respect of any of its income, businesses or franchises before any material penalty accrues thereon, and all lawful material claims (including claims for labor, services, materials and supplies) for sums that have become due and payable and that by law have become or could reasonably be expected to become a material Lien upon any of the properties or assets of such Borrower or any of its Subsidiaries; provided that no such charge or claim need be paid if it is being contested in good faith and by proper proceedings, so long as it has maintained adequate reserves (in the good faith judgment of such Borrower or such Subsidiary) with respect thereto in accordance with GAAP. 6.4 Maintenance of Properties; Insurance. A. Maintenance of Properties. Each Borrower will, and will cause each of its Subsidiaries to, maintain or cause to be maintained in good repair, working 106 order and condition, ordinary wear and tear excepted, all material properties used or useful in the business of Company and its Subsidiaries (including all Intellectual Property) and from time to time will make or cause to be made all appropriate repairs, renewals and replacements thereof, in each case except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect. B. Insurance. Each Borrower will, and will cause each of its Material Subsidiaries to, at all times maintain in full force and effect, with insurance companies which such Borrower believes (in the good faith judgment of such Borrower's management) are financially sound and responsible at the time the relevant coverage is placed or renewed, insurance in at least such amounts and against at least such risks (and with such risk retentions) as are usually insured against in the same general area by companies engaged in the same or a similar business. Each Borrower shall furnish to Lenders, upon written request from Administrative Agent, information presented in reasonable detail as to the insurance so carried. 6.5 Inspection Rights. Each Borrower shall, and shall cause each of its Material Subsidiaries to, permit any authorized representatives designated by Administrative Agent or Requisite Lenders to visit and inspect any of the properties of Company or of any of its Material Subsidiaries, to inspect, copy and make abstracts from its and their financial and accounting records, and to discuss its and their affairs, finances and accounts with its and their officers and independent public accountants (provided that such Borrower may, if it so chooses, be present at or participate in any such discussion), all upon reasonable notice and at such reasonable times during normal business hours and as often as may reasonably be requested. 6.6 Compliance with Laws, etc. Each Borrower shall comply, and shall cause each of its Subsidiaries to comply, in all material respects, with the requirements of all applicable laws, rules, regulations and orders (including all Environmental Laws) of any governmental authority having jurisdiction over it, except such as may be contested in good faith or as to which a bona fide dispute may exist and except to the extent that noncompliance therewith could not reasonably be expected to cause, individually or in the aggregate, a Material Adverse Effect. 6.7 Execution of Subsidiary Guaranty by Future Domestic Subsidiaries; Pledge of Stock of Future Direct Subsidiaries; Ratable Credit Support; Certain Closing Date Transactions; Certain Post-Closing Actions. A. In the event that any Person (other than a Restricted Acquisition Subsidiary or a Subsidiary that has incurred Indebtedness permitted under 107 subsection 7.1(xi)(b)) becomes a Domestic Subsidiary after the date hereof, Company will promptly notify each Agent of that fact and cause such Domestic Subsidiary to execute and deliver to Collateral Agent a counterpart of the Subsidiary Guaranty. In the event that any Person (other than a Restricted Acquisition Subsidiary or, subject to subsection 6.7B, a Subsidiary the capital stock of which is pledged pursuant to 7.2(vi)(b)) becomes a direct Domestic Subsidiary or a direct Material Foreign Subsidiary after the date hereof, Company will promptly notify each Agent of that fact and cause the capital stock owned by Company of such direct Domestic Subsidiary or such direct Material Foreign Subsidiary (or, if Company owns 65% or more of any such direct Material Foreign Subsidiary, 65% of the capital stock of such direct Material Foreign Subsidiary) to be pledged under the Master Pledge Agreement (or, if any such direct Domestic Subsidiary is a limited liability company, under the LLC Pledge Agreement) and, in the case of any such direct Material Foreign Subsidiary, also under any pledge agreements or instruments that the Collateral Agent deems necessary or advisable, or that the Collateral Agent may reasonably request, pursuant to the terms of the Master Pledge Agreement to effectuate such pledge in the jurisdiction in which such Material Foreign Subsidiary is organized. B. In the event that any Subsidiary of Company has guaranteed any Indebtedness incurred pursuant to subsection 7.1(xi) in an aggregate principal amount exceeding $125,000,000, or has granted any security interests as collateral therefor, such Subsidiary shall (i) guaranty the Obligations hereunder and under the other Loan Documents on a pari passu basis with its guaranty of any portion of such Indebtedness exceeding $125,000,000 and shall grant Liens on such assets securing the Obligations on an equal and ratable basis with the security for such Indebtedness pursuant to documentation reasonably satisfactory to Administrative Agent and Requisite Lenders and (ii) execute and deliver to Collateral Agent all such documents and instruments as may be necessary or, in the opinion of Collateral Agent, desirable, in order to more fully evidence, perfect or protect such security interest. C. On the Closing Date, (i) UK Holding shall borrow (pounds)12,499,237.85 in Tranche A Term Loans in the United Kingdom, (ii) ACI shall borrow (pounds)21,645,021.65 in Tranche A Term Loans in the United Kingdom, (iii) ACI shall purchase from Company all of the issued and outstanding shares of stock of Amphenol Borg and (iv) immediately thereafter, UK Holding shall purchase from Company all of the issued and outstanding shares of stock of ACI. Upon completion of such transactions, Amphenol Borg will be a wholly-owned Subsidiary of ACI, ACI will be a wholly-owned Subsidiary of UK Holding, and 65% of the stock of UK Holding will be pledged to Collateral Agent by Company pursuant to the Master Pledge Agreement to secure the Obligations of Loan Parties hereunder and under the other Loan Documents. On the Closing Date, neither U.K. Borrower shall be liable with respect to any Indebtedness or Guarantee Obligations other than their respective Obligations and any intercompany Indebtedness permitted pursuant to subsection 7.1(iv). 108 D. Within thirty days of the Closing Date, Company shall have (i) completed (or caused to have been completed) the contemplated reorganization of the German Subsidiaries of Company and certain other foreign Subsidiaries of Company under the common ownership of a newly-formed German corporation which shall be a direct Subsidiary of Company, (ii) pledged 65% of the stock of such newly-formed Subsidiary to Collateral Agent on behalf of Lenders pursuant to the terms of the Master Pledge Agreement and such other agreements or instruments under German law as Collateral Agent may deem necessary or desirable to perfect the First Priority security interest of Collateral Agent therein, and (iii) taken (or caused to be taken) all such other actions with respect thereto (including the delivery of legal opinions) as Collateral Agent shall reasonably request. 6.8 Transactions with Affiliates. Each Borrower shall, and shall cause each of its Subsidiaries to, conduct all transactions with any of its Affiliates (other than Company or any of its Subsidiaries) upon terms that are substantially as favorable to Company or such Subsidiary as it would obtain in a comparable arm's-length transaction with a Person not an Affiliate of Company or such Subsidiary; provided that the foregoing restrictions shall not apply to (a) the payment of customary annual fees to KKR and its Affiliates for management, consulting and financial services rendered to Company and its Subsidiaries, and customary investment banking fees paid to KKR and its Affiliates for services rendered to Company and its Subsidiaries in connection with divestitures, acquisitions, financings and other transactions, (b) reasonable and customary fees paid to members of the Board of Directors of Company and its Subsidiaries, (c) transactions otherwise expressly permitted hereunder between Company or any of its Subsidiaries and any such Affiliate, and (d) transactions between Company or any of its Subsidiaries and any special-purpose entity established in connection with any Accounts Receivable Facility. 6.9 Conduct of Business. From and after the Closing Date, each Borrower shall, and shall cause its Subsidiaries (taken as a whole) to, engage primarily in (i) the lines of business carried on by such Borrower and its Subsidiaries on the Closing Date, (ii) other businesses or activities that are reasonably similar thereto or that constitute a reasonable extension, development or expansion thereof or that are ancillary or reasonably related thereto. 6.10 Fiscal Year. Company shall maintain its Fiscal Year-end at December 31 of each year; provided that Company may, upon prior written notice to Administrative Agent, change such Fiscal Year-end to any other date reasonably acceptable to Administrative Agent, in which case Company and Administrative Agent shall, and are hereby authorized by 109 Lenders to, make any adjustments to this Agreement that are necessary in order to reflect any corresponding changes in financial reporting. Section 7. NEGATIVE COVENANTS Company covenants and agrees that, so long as any of the Commitments hereunder shall remain in effect and until payment in full of all of the Loans and other Obligations and the cancellation or expiration of all Letters of Credit, unless Requisite Lenders shall otherwise give prior written consent, Company shall perform, and shall cause each of its Subsidiaries to perform, all covenants in this Section 7. Each U.K. Borrower covenants and agrees that, so long as the Tranche A Term Loan Commitments hereunder shall remain in effect and until payment in full of all of the Sterling Loans made to such U.K. Borrower and all Obligations of such U.K. Borrower relating thereto, unless Requisite Lenders shall otherwise give prior written consent, such U.K. Borrower shall perform and shall cause each of its Subsidiaries to perform all covenants applicable to it and its Subsidiaries in this Section 7. 7.1 Indebtedness. Each Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, except: (i) Borrowers may become and remain liable with respect to the Obligations; (ii) Company and its Subsidiaries may become and remain liable with respect to Guarantee Obligations permitted under subsection 7.4 and, upon any matured obligations actually arising pursuant thereto, the Indebtedness corresponding to the Guarantee Obligations so extinguished; (iii) Company and its Subsidiaries may become and remain liable with respect to Indebtedness in respect of Capital Leases in an aggregate amount not to exceed at any time $50,000,000; (iv) Company may become and remain liable with respect to Indebtedness to any of its Subsidiaries, and any Subsidiary of Company may become and remain liable with respect to Indebtedness to Company or any other Subsidiary of Company; (v) Company and its Subsidiaries, as applicable, may remain liable with respect to Indebtedness described in Schedule 7.1 annexed hereto; 110 (vi) Company may remain liable with respect to (a) any portion of the Existing Subordinated Notes not tendered pursuant to the Debt Tender Offer and (b) the Existing Senior Notes until the repurchase thereof with the proceeds of the Delayed-Draw Term Loans; (vii) Company may become and remain liable with respect to Indebtedness evidenced by the New Sub Debt and any Refinancing Sub Debt; (viii) Company and its Subsidiaries may become and remain liable with respect to Indebtedness (a) incurred within 270 days of the acquisition, construction or improvement of fixed or capital assets to finance the acquisition, construction or improvement of such fixed or capital assets or (b) otherwise incurred in respect of Capital Expenditures permitted under subsection 7.8; (ix) Company and its Subsidiaries may become and remain liable with respect to Indebtedness under Hedge Agreements; (x) Any Person that becomes a Restricted Acquisition Subsidiary (a) may remain liable with respect to (X) Indebtedness of such Person existing at the time of consummation of the Acquisition pursuant to which such Person becomes a Subsidiary of Company or (Y) Indebtedness secured by assets acquired by such Person in an Acquisition at the time of consummation of such Acquisition; provided that such Indebtedness was not incurred in contemplation of the Acquisition referred to in clause (X) or the acquisition of such assets referred to in clause (Y), as the case may be, and (b) may become and remain liable with respect to Indebtedness incurred to finance the Acquisition pursuant to which such Person becomes a Subsidiary of Company; (xi) Company and its Subsidiaries (a) may remain liable with respect to (X) in the case of a Subsidiary, Indebtedness of such Subsidiary existing at the time of consummation of an Acquisition pursuant to which such Person becomes a Subsidiary of Company or (Y) Indebtedness secured by assets acquired by such Person in an Acquisition at the time of consummation of such Acquisition; provided that such Indebtedness was not incurred in contemplation of the Acquisition referred to in clause (X) or the acquisition of such assets referred to in clause (Y), as the case may be, and (b) may become and remain liable with respect to Indebtedness incurred to finance an Acquisition consummated by such Person, including an Acquisition pursuant to which such Person becomes a Subsidiary of Company; provided that the aggregate outstanding principal amount of all Indebtedness permitted pursuant to this subsection 7.1(xi) shall at no time exceed $200,000,000; (xii) Company and its Subsidiaries may extend the maturity of, and may become and remain liable with respect to Indebtedness incurred to refinance, any 111 Indebtedness permitted under clauses (ii), (v), (viii), (x) and (xi) above; provided that (a) the principal amount of any such Indebtedness is not increased above the principal amount thereof outstanding immediately prior to such extension or refinancing and (y) the direct and contingent obligors with respect to such Indebtedness are not changed as a result of such extension or refinancing; (xiii) Company and its Subsidiaries may enter into and remain liable with respect to commodity consignment arrangements in the ordinary course of business in an aggregate amount not to exceed at any time $20,000,000; and (xiv) Company and its Subsidiaries may become and remain liable with respect to other Indebtedness in an aggregate principal amount not to exceed $200,000,000 at any time outstanding. 7.2 Liens and Related Matters. Each Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist any Lien on or with respect to any property or asset of any kind (including any document or instrument in respect of goods or accounts receivable) of such Borrower or any of its Subsidiaries, whether now owned or hereafter acquired, except: (i) Permitted Encumbrances; (ii) Liens granted pursuant to the Collateral Documents; (iii) Liens existing on the Closing Date securing Indebtedness described on Schedule 7.1 annexed hereto in an aggregate principal amount not to exceed $20,000,000; (iv) Liens placed on property, plant or equipment used in the ordinary course of business of Company or any of its Subsidiaries to secure Indebtedness incurred to pay all or a portion of the purchase price thereof; provided that (a) the Lien encumbering such property, plant or equipment does not encumber any other asset of Company or any of its Subsidiaries and (b) the Indebtedness secured thereby is permitted under subsection 7.1(viii); (v) (a) Liens encumbering assets of a Restricted Acquisition Subsidiary that are granted to secure Indebtedness permitted under subsection 7.1(x) at the time such Indebtedness is assumed by such Restricted Acquisition Subsidiary; provided that such Liens are not granted in contemplation of the Acquisition pursuant to which such Person becomes a Subsidiary of Company, and (b) Liens encumbering the capital stock of a Restricted Acquisition Subsidiary that are granted to secure Indebtedness permitted under subsection 7.1(x)(b); 112 (vi) (a) Liens encumbering assets of a Subsidiary of Company that are granted to secure Indebtedness permitted under subsection 7.1(xi) at the time such Indebtedness is originally incurred and (b) Liens encumbering the capital stock of a Subsidiary of Company that are granted to secure Indebtedness permitted under subsection 7.1(xi)(b); provided that the aggregate outstanding principal amount of Indebtedness secured by all Liens permitted pursuant to this subsection 7.2(vi) shall at no time exceed $125,000,000, except to the extent that such Subsidiary has granted a Lien on the assets securing any portion of such Indebtedness in excess of $125,000,000 on an equal and ratable basis to Collateral Agent on behalf of Lenders to secure the Obligations; (vii) Liens on commodities subject to any arrangement permitted under subsection 7.1(xiii); and (viii) Other Liens securing Indebtedness in an aggregate amount not to exceed $25,000,000 at any time outstanding. 7.3 Investments; Joint Ventures. Each Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any Person, including any Joint Venture, except: (i) Company and its Subsidiaries may make and own Investments in Cash Equivalents; (ii) Company and its Subsidiaries may make loans and advances to officers, directors and employees of Company or any of its Subsidiaries (a) to finance the purchase of capital stock of Company and (b) in an aggregate principal amount not to exceed $5,000,000 at any time outstanding for additional purposes not contemplated by the foregoing clause (a); (iii) Company and its Subsidiaries may make and own Investments consisting of any non-cash proceeds received by Company or any of its Subsidiaries in connection with any Asset Sale permitted under subsection 7.7(v); (iv) Company and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3 annexed hereto and Company and its Subsidiaries may make and own Investments purchased with the proceeds of the sale of any Investments permitted under this subsection 7.3(iv); (v) Company and its Subsidiaries may make and own Investments in special-purpose entities established to purchase accounts receivable from Company or any of its Subsidiaries pursuant to an Accounts Receivable Facility; and 113 (vi) Company and its Subsidiaries may make and own Investments (collectively, "Unrestricted Investments") in addition to those permitted under clauses (i) through (v) above, including Investments in Restricted Acquisition Subsidiaries and in Unrestricted Subsidiaries, as follows: (a) Unrestricted Investments in an aggregate amount not to exceed at any time (1) $50,000,000 for all such Unrestricted Investments in Unrestricted Subsidiaries or (2) $100,000,000 for all such Unrestricted Investments (including all such Unrestricted Investments in Restricted Acquisition Subsidiaries and Unrestricted Subsidiaries) and (b) Unrestricted Investments in addition to the Unrestricted Investments permitted under the preceding clause (a), provided that after giving effect to any such additional Unrestricted Investment pursuant to this clause (b) the Available Amount Usage shall not exceed the Available Amount. 7.4 Guarantee Obligations. Each Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create or become or remain liable with respect to any Guarantee Obligation, except: (i) Company and its Subsidiaries may become and remain liable with respect to Guarantee Obligations in respect of the Guaranties; (ii) Company may become and remain liable with respect to Guarantee Obligations in respect of Letters of Credit; (iii) Company and its Subsidiaries may become and remain liable with respect to Guarantee Obligations in respect of customary indemnification and purchase price adjustment obligations incurred in connection with Asset Sales or other sales of assets; (iv) Company and its Subsidiaries may become and remain liable with respect to Guarantee Obligations under guarantees in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of Company and its Subsidiaries; (v) Company and its Subsidiaries may become and remain liable with respect to Guarantee Obligations in respect of any Indebtedness of Company or any of its Subsidiaries (other than Restricted Acquisition Subsidiaries) permitted by subsection 7.1; provided that neither Company nor any of its Subsidiaries may become or remain liable with respect to Guarantee Obligations in respect of any Indebtedness permitted under subsection 7.1(xi)(b) unless such Person becomes a Subsidiary of Company pursuant to the Acquisition financed with the proceeds of such Indebtedness or acquires a direct Subsidiary pursuant to such Acquisition; 114 (vi) Company and its Subsidiaries, as applicable, may remain liable with respect to Guarantee Obligations described in Schedule 7.4 annexed hereto; and (vii) Company and its Subsidiaries may become and remain liable with respect to other Guarantee Obligations; provided that the maximum aggregate liability, contingent or otherwise, of Company and its Subsidiaries in respect of all such Guarantee Obligations shall at no time exceed $25,000,000. 7.5 Restricted Junior Payments. Each Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; provided that (i) Company may redeem the Existing Senior Notes as contemplated by subsection 4.1F(iv), (ii) Company may make scheduled payments of principal in respect of any Existing Subordinated Notes not tendered pursuant to the Debt Tender Offer in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the Existing Subordinated Note Indenture, and (iii) so long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused thereby, Company may: (a) repurchase shares of its capital stock (together with options or warrants in respect of any thereof) held by officers, directors and employees of Company so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements; (b) repurchase, redeem, defease or otherwise prepay or retire any Existing Subordinated Notes not tendered pursuant to the Debt Tender Offer on terms (set forth in the Existing Subordinated Note Indenture or otherwise) no less favorable in any material respect to Company and Lenders than the terms of the Debt Tender Offer; (c) repurchase, redeem, defease or otherwise prepay or retire New Sub Debt; provided that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount; (d) purchase, redeem or otherwise acquire shares of common stock of Company or warrants or options to acquire any such shares with proceeds received by Company from substantially concurrent equity contributions or issuances of new shares of its common stock; (e) redeem or exchange, in whole or in part, any capital stock of Company for shares of another class of capital stock of Company or rights to acquire shares of such other class of capital stock; provided that such other class of 115 capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and (f) make other Restricted Junior Payments; provided that on the date (the "Declaration Date") of declaration of any dividend in respect of Company's outstanding capital stock pursuant to the terms of this clause (f) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (f), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Company pursuant to this clause (f) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Company and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently ended. 7.6 Financial Covenants. A. Minimum Interest Coverage Ratio. Company shall not permit the ratio of (i) Consolidated Adjusted EBITDA to (ii) Consolidated Interest Expense for the four- Fiscal Quarter period ending on the last day of any Fiscal Quarter set forth below to be less than the correlative ratio indicated: 116 Minimum Interest Year Fiscal Quarter Coverage Ratio ---- -------------- -------------- 1998 First 1.50:1.00 Second 1.50:1.00 Third 1.50:1.00 Fourth 1.50:1.00 1999 First 1.50:1.00 Second 1.50:1.00 Third 1.75:1.00 Fourth 1.75:1.00 2000 First 1.75:1.00 Second 1.75:1.00 Third 1.75:1.00 Fourth 1.75:1.00 2001 First 1.75:1.00 Second 1.75:1.00 Third 2.00:1.00 Thereafter 2.00:1.00 B. Maximum Leverage Ratio. Company shall not permit the Consolidated Leverage Ratio as of the last day of any Fiscal Quarter set forth below to exceed the correlative ratio indicated: 117 Maximum Year Fiscal Quarter Leverage Ratio ---- -------------- -------------- 1998 First 6.65:1.00 Second 6.50:1.00 Third 6.40:1.00 Fourth 6.25:1.00 1999 First 6.00:1.00 Second 6.00:1.00 Third 6.00:1.00 Fourth 5.75:1.00 2000 First 5.50:1.00 Second 5.50:1.00 Third 5.50:1.00 Fourth 5.00:1.00 2001 First 4.75:1.00 Second 4.75:1.00 Third 4.75:1.00 Fourth 4.75:1.00 2002 First 4.25:1.00 Second 4.25:1.00 Third 4.25:1.00 Fourth 4.00:1.00 Thereafter 4.00:1.00 7.7 Restriction on Certain Fundamental Changes; Asset Sales and Acquisitions. Each Borrower shall not, and shall not permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, property or assets, whether now owned or hereafter acquired, or make any Acquisition, except: (i) any Subsidiary of Company may be merged with or into Company or any other Subsidiary of Company, and any Subsidiary of Company may be liquidated, wound up or dissolved, or all or any part of its business, property or assets (including capital stock of any Subsidiary of Company) may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of 118 transactions, to Company or any other Subsidiary of Company; provided that (a) in the case of any such merger involving Company, Company shall be the continuing or surviving corporation, and (b) for so long as either U.K. Borrower has any outstanding Obligations, (1) no such merger shall have the effect of causing a U.K. Borrower to have transferred all or substantially all of its assets to Company or another Subsidiary of Company, (2) in the case of a merger involving a U.K. Borrower (but not Company), a U.K. Borrower shall be the continuing or surviving corporation, (3) neither an Unrestricted Subsidiary nor a Restricted Acquisition Subsidiary may merge with either U.K. Borrower, and (4) neither U.K. Borrower may dispose of all or substantially all of its assets, whether in one transaction or a series of transactions; provided, further that, notwithstanding the restrictions set forth in clauses (1) and (4) of the immediately preceding proviso, one U.K. Borrower may merge into the other U.K. Borrower and any Subsidiary of a U.K. Borrower may merge into such U.K. Borrower; (ii) Company and its Subsidiaries may make Acquisitions (by merger or otherwise) so long as, prior to the consummation of any such Acquisition, Company shall have delivered to Administrative Agent (a) financial statements for Company and its Subsidiaries for the four Fiscal-Quarter period most recently ended (the "Pro Forma Test Period"), prepared on a pro forma basis as if such Acquisition had been consummated on the first day of the Pro Forma Test Period and giving effect to Company's good faith estimate of any anticipated cost savings or increases as a result of the consummation thereof, and (b) a pro forma Compliance Certificate demonstrating that, on the basis of such pro forma financial statements, Company would have been in compliance with all financial covenants set forth in subsection 7.6 on the last day of the Pro Forma Test Period; provided that, for Acquisitions consummated prior to the last day of the first Fiscal Quarter of 1998, the requirements of subsection 7.6 in effect for the four Fiscal-Quarter period ending on such date shall be deemed to be in effect for the Pro Forma Test Period; (iii) Company and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business and sell or discount without recourse accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (iv) Company and its Subsidiaries may sell or otherwise dispose of other assets in transactions that do not constitute Asset Sales; (v) Company and its Subsidiaries may make Asset Sales of assets having a fair value not in excess of $300,000,000 during the term of this Agreement; provided that (w) the consideration received in each such Asset Sale shall be in an amount at least equal to the fair value of the assets being sold; (x) any non-cash consideration received by Company in respect of any such Asset Sale in the form 119 of Indebtedness of any Person in an amount in excess of $5,000,000 shall be evidenced by a promissory note which shall be pledged by Company to Collateral Agent pursuant to the Master Pledge Agreement as security for the Obligations; and (y) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a); (vi) Company may sell the assets described on Schedule 7.3 annexed hereto on the Closing Date; and (vii) Investments permitted under subsection 7.3. 7.8 Consolidated Capital Expenditures. Company shall not, and shall not permit its Subsidiaries to, make or incur Consolidated Capital Expenditures in any Fiscal Year (the "Current Fiscal Year") in an aggregate amount in excess of an amount (the "Maximum Capital Expenditures Amount" for the Current Fiscal Year) equal to (x) 5% of Consolidated Gross Sales Revenues for the immediately preceding Fiscal Year plus (y) the Consolidated Gross Sales Revenues Adjustment for the Current Fiscal Year; provided that the Maximum Capital Expenditures Amount for any Fiscal Year shall be increased by an amount equal to the excess, if any, of the Maximum Capital Expenditures Amount for the previous Fiscal Year (prior to adjustment in accordance with this proviso) over the actual amount of Consolidated Capital Expenditures for such previous Fiscal Year. 7.9 Amendments of Documents Relating to Subordinated Indebtedness. Borrowers shall not, and shall not permit any of their respective Subsidiaries to, amend or otherwise change any of the terms of any Subordinated Indebtedness in a manner that would be adverse to Lenders in any material respect. Section 8. EVENTS OF DEFAULT If any of the following conditions or events ("Events of Default") shall occur: 8.1 Failure to Make Payments When Due. Failure by Company or either U.K. Borrower to pay any installment of principal of any Loan when due from such Borrower, whether at stated maturity, by acceleration, by mandatory prepayment or otherwise; or failure by Company to pay when due any amount payable to an Issuing Lender in reimbursement of any drawing under a Letter of Credit; or failure by any Borrower to pay any interest on any Loan or any fee 120 or any other amount due from such Borrower under this Agreement, in each case within five days after the date due; or 8.2 Default in Other Agreements. (i) Failure of Company or any of its Subsidiaries to pay when due any principal of or interest on or any other amount payable in respect of one or more items of Indebtedness (other than Indebtedness referred to in subsection 8.1) or Guarantee Obligations with an aggregate principal amount of $20,000,000 or more beyond the end of any grace or notice period provided therefor; or (ii) breach or default by Company or any of its Subsidiaries with respect to any other material term of (a) one or more items of Indebtedness or Guarantee Obligations in the aggregate principal amount referred to in clause (i) above or (b) any loan agreement, mortgage, indenture or other agreement relating to such item(s) of Indebtedness or Guarantee Obligation(s), if such breach or default continues after any applicable grace or notice period provided therefor and the effect of such breach or default is to cause, or (other than in the case of the Existing Senior Notes) to permit the holder or holders of that Indebtedness or Contingent Obligation(s) (or a trustee on behalf of such holder or holders) to cause, that Indebtedness or Contingent Obligation(s) to become or be declared due and payable prior to its stated maturity or the stated maturity of any underlying obligation, as the case may be; or 8.3 Breach of Certain Covenants. Failure of any Borrower to perform or comply with any term or condition contained in subsection 6.1(vi)(a) or Section 7; or 8.4 Breach of Warranty. Any representation, warranty, certification or other statement made by Company or any of its Subsidiaries in any Loan Document or in any statement or certificate at any time given by Company or any of its Subsidiaries in writing pursuant hereto or thereto or in connection herewith or therewith shall be false in any material respect on the date as of which made; or 8.5 Other Defaults Under Loan Documents. Any Loan Party shall default in the performance of or compliance with any term contained in this Agreement or any of the other Loan Documents, other than any such term referred to in any other subsection of this Section 8, and such default shall not have been remedied or waived within 30 days after receipt by Company and such Loan Party of notice from Administrative Agent or any Lender of such default; or 121 8.6 Involuntary Bankruptcy; Appointment of Receiver, etc. (i) A court having jurisdiction in the premises shall enter a decree or order for relief in respect of Company or any of its Material Subsidiaries in an involuntary case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect, which decree or order is not stayed; or any other similar relief shall be granted under any applicable federal, state or foreign law; or (ii) an involuntary case shall be commenced against Company or any of its Material Subsidiaries under the Bankruptcy Code or under any other applicable bankruptcy, insolvency, dissolution, liquidation or similar law now or hereafter in effect; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over Company or any of its Material Subsidiaries, or over all or a substantial part of its property, shall have been entered; or there shall have occurred the involuntary appointment of an interim receiver, trustee or other custodian of Company or any of its Material Subsidiaries for all or a substantial part of its property; or a warrant of attachment, execution or similar process shall have been issued against any substantial part of the property of Company or any of its Material Subsidiaries, and any such event described in this clause (ii) shall continue for 60 days unless dismissed, bonded or discharged; or 8.7 Voluntary Bankruptcy; Appointment of Receiver, etc. (i) Company or any of its Material Subsidiaries shall have an order for relief entered with respect to it or commence a voluntary case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency, dissolution, liquidation or similar law (whether federal, state or foreign) now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such law, or shall consent to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property; or Company or any of its Material Subsidiaries shall make any assignment for the benefit of creditors; or (ii) Company or any of its Material Subsidiaries shall fail generally, or shall admit in writing its inability, to pay its debts as such debts become due; or the Board of Directors of Company or any of its Material Subsidiaries (or any committee thereof) shall adopt any resolution or otherwise authorize any action to approve any of the actions referred to in clause (i) above or this clause (ii); or 8.8 Judgments and Attachments. Any money judgments, writs or warrants of attachment or similar processes involving in the aggregate at any time an amount in excess of $20,000,000 (to the extent such amount is not adequately covered by insurance as to which the insurance company has not disputed coverage in writing) shall be entered or filed against Company or any of its Subsidiaries or any of their respective assets and shall remain undischarged, unvacated, unbonded or unstayed for a period of 60 days; or 122 8.9 ERISA. An ERISA Event shall occur with respect to a Pension Plan or Multiemployer Plan; or 8.10 Change of Control. A Change of Control shall occur; or 8.11 Material Invalidity of Guaranties; Material Failure of Security; Repudiation of Obligations. At any time after the execution and delivery thereof, (i) any material provision of the Company Guaranty, the Subsidiary Guaranty or any guaranty entered into by a Subsidiary of Company pursuant to subsection 6.7B for any reason, other than the satisfaction in full of all Obligations, shall cease to be in full force and effect (other than in accordance with its terms) or shall be declared to be null and void, in either case, as to Company, with respect to the Company Guaranty, or as to any material portion of Subsidiary Guarantors and other Subsidiaries guaranteeing the Obligations, with respect to the Subsidiary Guaranty and any guaranty entered into pursuant to subsection 6.7B, (ii) any Collateral Document shall cease to create a valid security interest in the collateral purported to be covered thereby or shall cease to be in full force and effect (other than by reason of a release of Collateral thereunder in accordance with the terms hereof or thereof, the satisfaction in full of the Obligations or any other termination of such Collateral Document in accordance with the terms hereof or thereof), in each case to the extent the same affects a material portion of the Collateral and in each case for any reason other than any act or omission of either Agent or any Lender, or (iii) any Loan Party shall deny in writing its obligations under any Loan Document to which it is a party: THEN (i) upon the occurrence of any Event of Default described in subsection 8.6 or 8.7, each of (a) the unpaid principal amount of and accrued interest on the Loans, (b) an amount equal to the maximum amount that may at any time be drawn under all Letters of Credit then outstanding (whether or not any beneficiary under any such Letter of Credit shall have presented, or shall be entitled at such time to present, the drafts or other documents or certificates required to draw under such Letter of Credit), and (c) all other Obligations shall automatically become immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by Borrowers, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate, and (ii) upon the occurrence and during the continuation of any other Event of Default, Administrative Agent shall, upon the written request or with the written consent of Requisite Lenders, by written notice to Borrowers, declare all or any portion of the amounts described in clauses (a) through (c) above to be, and the same shall forthwith become, immediately due and 123 payable, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate; provided that the foregoing shall not affect in any way the obligations of Lenders under subsection 3.3C(i) or the obligations of Lenders to purchase participations in any unpaid Swing Line Loans as provided in subsection 2.1A(v). Any amounts described in clause (b) above, when received by Administrative Agent, shall be paid to Collateral Agent, for the benefit of Lenders, and held by Collateral Agent, for the benefit of Lenders, as collateral security for the Obligations of Company in respect of all outstanding Letters of Credit, and Company hereby (X) grants to Collateral Agent, for the benefit of Lenders, a security interest in all such amounts, together with any interest accrued thereon and any Investments of such amounts, as security for the Obligations, (Y) agrees to execute and deliver to Collateral Agent all such documents and instruments as may be necessary or, in the opinion of Collateral Agent, desirable in order to more fully evidence, perfect or protect such security interest, and (Z) agrees that, upon the honoring by any Issuing Bank of any drawing under a Letter of Credit issued by it, Collateral Agent is authorized and directed to apply any amounts held as collateral security in accordance with the terms of this paragraph to reimburse such Issuing Lender for the amount of such drawing. Notwithstanding anything contained in the second preceding paragraph, if at any time within 60 days after an acceleration of the Loans pursuant to clause (ii) of such paragraph Borrowers shall pay all arrears of interest and all payments on account of principal which shall have become due otherwise than as a result of such acceleration (with interest on principal and, to the extent permitted by law, on overdue interest, at the rates specified in this Agreement) and all Events of Default and Potential Events of Default (other than non-payment of the principal of and accrued interest on the Loans, in each case which is due and payable solely by virtue of acceleration) shall be remedied or waived pursuant to subsection 10.6, then Requisite Lenders, by written notice to Borrowers, may at their option rescind and annul such acceleration and its consequences; but such action shall not affect any subsequent Event of Default or Potential Event of Default or impair any right consequent thereon. The provisions of this paragraph are intended merely to bind Lenders to a decision which may be made at the election of Requisite Lenders and are not intended, directly or indirectly, to benefit Company, and such provisions shall not at any time be construed so as to grant Company the right to require Lenders to rescind or annul any acceleration hereunder or to preclude Agents or Lenders from exercising any of the rights or remedies available to them under any of the Loan Documents, even if the conditions set forth in this paragraph are met. 124 Section 9. AGENTS 9.1 Appointment of Administrative Agent. BTCo is hereby appointed Administrative Agent hereunder and under the other Loan Documents and each Lender hereby authorizes Administrative Agent to act as its agent in accordance with the terms of this Agreement and the other Loan Documents. Administrative Agent agrees to act upon the express conditions contained in this Agreement and the other Loan Documents, as applicable. The provisions of this Section 9 are solely for the benefit of Administrative Agent and Lenders and no Borrower shall have any rights as a third party beneficiary of any of the provisions thereof. In performing its functions and duties under this Agreement, Administrative Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with or for Company or any of its Subsidiaries. Neither Syndication Agent nor Documentation Agent nor any Lender named as a Lead Manager or Co-Agent hereunder shall have any liability to any Person under this Agreement except in its capacity as a Lender or, if applicable, an Issuing Lender. 9.2 Powers and Duties; General Immunity. A. Powers; Duties Specified. Each Lender irrevocably authorizes each Agent to take such action on such Lender's behalf and to exercise such powers, rights and remedies hereunder and under the other Loan Documents as are specifically delegated or granted to such Agent by the terms hereof and thereof, together with such powers, rights and remedies as are reasonably incidental thereto. Each Agent shall have only those duties and responsibilities that are expressly specified in this Agreement and the other Loan Documents. Administrative Agent may exercise such powers, rights and remedies and perform such duties by or through its agents or employees. Neither Agent shall have, by reason of this Agreement or any of the other Loan Documents, a fiduciary relationship in respect of any Lender; and nothing in this Agreement or any of the other Loan Documents, expressed or implied, is intended to or shall be so construed as to impose upon either Agent any obligations in respect of this Agreement or any of the other Loan Documents except as expressly set forth herein or therein. B. No Responsibility for Certain Matters. Neither Agent shall be responsible to any Lender for the execution, effectiveness, genuineness, validity, enforceability, collectibility or sufficiency of this Agreement or any other Loan Document or for any representations, warranties, recitals or statements made herein or therein or made in any written or oral statements or in any financial or other statements, instruments, reports or certificates or any other documents furnished or made by either Agent to Lenders or by or on behalf of any Borrower to either Agent or any Lender in connection with the Loan Documents and the transactions contemplated thereby or for the financial condition or business affairs of any Borrower or any other Person liable for the 125 payment of any Obligations, nor shall either Agent be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained in any of the Loan Documents or as to the use of the proceeds of the Loans or the use of the Letters of Credit or as to the existence or possible existence of any Event of Default or Potential Event of Default. Anything contained in this Agreement to the contrary notwithstanding, Administrative Agent shall not have any liability arising from confirmations of the amount of outstanding Loans or the Letter of Credit Usage or the component amounts thereof. C. Exculpatory Provisions. Neither Administrative Agent nor Collateral Agent nor any of their respective officers, directors, employees or agents shall be liable to Lenders for any action taken or omitted by such Agent under or in connection with any of the Loan Documents except to the extent caused by such Agent's gross negligence or willful misconduct. Each Agent shall be entitled to refrain from any act or the taking of any action (including the failure to take an action) in connection with this Agreement or any of the other Loan Documents or from the exercise of any power, discretion or authority vested in it hereunder or thereunder unless and until such Agent shall have received instructions in respect thereof from Requisite Lenders (or such other Lenders as may be required to give such instructions under subsection 10.6) and, upon receipt of such instructions from Requisite Lenders (or such other Lenders, as the case may be), such Agent shall be entitled to act or (where so instructed) refrain from acting, or to exercise such power, discretion or authority, in accordance with such instructions. Without prejudice to the generality of the foregoing, (i) each Agent shall be entitled to rely, and shall be fully protected in relying, upon any communication, instrument or document believed by it to be genuine and correct and to have been signed or sent by the proper person or persons, and shall be entitled to rely and shall be protected in relying on opinions and judgments of attorneys (who may be attorneys for Company and its Subsidiaries), accountants, experts and other professional advisors selected by it; and (ii) no Lender shall have any right of action whatsoever against either Agent as a result of such Agent acting or (where so instructed) refraining from acting under this Agreement or any of the other Loan Documents in accordance with the instructions of Requisite Lenders (or such other Lenders as may be required to give such instructions under subsection 10.6). D. Agents Entitled to Act as Lenders. The agency hereby created shall in no way impair or affect any of the rights and powers of, or impose any duties or obligations upon, either Agent in its individual capacity as a Lender hereunder. With respect to its participation in the Loans and the Letters of Credit, such Agent shall have the same rights and powers hereunder as any other Lender and may exercise the same as though it were not performing the duties and functions delegated to it hereunder, and the term "Lender" or "Lenders" or any similar term shall, unless the context clearly otherwise indicates, include each Agent in its individual capacity. Each Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of banking, trust, financial advisory or other business with Company or any of its Affiliates as if it were not performing the duties specified herein, and may accept fees and other consideration from 126 any Borrower for services in connection with this Agreement and otherwise without having to account for the same to Lenders. 9.3 Representations and Warranties; No Responsibility For Appraisal of Credit- worthiness. Each Lender represents and warrants that it has made its own independent investigation of the financial condition and affairs of Company and its Subsidiaries in connection with the making of the Loans and the issuance of Letters of Credit hereunder and that it has made and shall continue to make its own appraisal of the creditworthiness of Company and its Subsidiaries. Neither Agent shall have any duty or responsibility, either initially or on a continuing basis, to make any such investigation or any such appraisal on behalf of Lenders or to provide any Lender with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans or at any time or times thereafter, and neither Agent shall have any responsibility with respect to the accuracy of or the completeness of any information provided to Lenders. 9.4 Right to Indemnity. Each Lender, in proportion to its Pro Rata Share, severally agrees to indemnify Administrative Agent, Collateral Agent, Documentation Agent and Syndication Agent to the extent that such Person shall not have been reimbursed by Company, for and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including counsel fees and disbursements) or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against such Person in exercising its powers, rights and remedies or performing its duties hereunder or under the other Loan Documents or otherwise in its capacity as Administrative Agent, Collateral Agent, Documentation Agent or Syndication Agent, respectively, in any way relating to or arising out of this Agreement or the other Loan Documents; provided that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of the indemnified Person. If any indemnity furnished to Administrative Agent, Collateral Agent, Documentation Agent or Syndication Agent for any purpose shall, in the opinion of such Person, be insufficient or become impaired, such Person may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished. 9.5 Successor Agents and Swing Line Lender. A. Successor Administrative Agent. Administrative Agent may resign at any time by giving 30 days' prior written notice thereof to Lenders and Borrowers, and Administrative Agent may be removed at any time with or without cause by an instrument or concurrent instruments in writing delivered to Borrowers and Administrative Agent and 127 signed by Requisite Lenders. Upon any such notice of resignation or any such removal, Requisite Lenders shall have the right, upon five Business Days' notice to Borrowers, to appoint a successor Administrative Agent acceptable to Company (which acceptance shall not be unreasonably withheld). Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, that successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Administrative Agent and the retiring or removed Administrative Agent shall be discharged from its duties and obligations under this Agreement and the other Loan Documents. After any retiring or removed Administrative Agent's resignation or removal hereunder as Administrative Agent, the provisions of this Section 9 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement. B. Successor Collateral Agent. Any resignation or removal of Administrative Agent pursuant to subsection 9.5A shall also constitute the resignation or removal of BTCo or its successor as Collateral Agent, and any successor Administrative Agent appointed pursuant to subsection 9.5A shall, upon its acceptance of such appointment, become the successor Collateral Agent for all purposes under the Loan Documents. After any resignation or removal of Collateral Agent hereunder, the provisions of this Section 9 shall inure to its benefit as to any actions taken or omitted by it while it was Collateral Agent under the Loan Documents. C. Successor Swing Line Lender. Any resignation or removal of Administrative Agent pursuant to subsection 9.5A shall also constitute the resignation or removal of BTCo or its successor as Swing Line Lender, and any successor Administrative Agent appointed pursuant to subsection 9.5A shall, upon its acceptance of such appointment, become the successor Swing Line Lender for all purposes hereunder. In such event (i) Company shall prepay any outstanding Swing Line Loans made by the retiring or removed Administrative Agent in its capacity as Swing Line Lender, (ii) upon such prepayment, the retiring or removed Administrative Agent and Swing Line Lender shall surrender any Swing Line Note held by it to Company for cancellation, and (iii) if so requested by the successor Administrative Agent and Swing Line Lender in accordance with subsection 2.1E, Company shall issue a new Swing Line Note to the successor Administrative Agent and Swing Line Lender substantially in the form of Exhibit VIII annexed hereto, in the principal amount of the Swing Line Loan Commitment then in effect and with other appropriate insertions. 9.6 Collateral Documents and Guaranties. Each Lender hereby further authorizes Collateral Agent, on behalf of and for the benefit of Lenders, to enter into each Collateral Document as secured party and to be the agent for and representative of Lenders under the Guaranties and to enter into the Intercreditor Agreement, and each Lender agrees to be bound by the terms of each Collateral Document, each Guaranty and the Intercreditor Agreement; provided that 128 Collateral Agent shall not (i) enter into or consent to any material amendment, modification, termination or waiver of any provision contained in any Collateral Document, the Intercreditor Agreement or the Guaranties or (ii) release any Collateral (except as otherwise expressly permitted or required pursuant to the terms of this Agreement or the applicable Collateral Document), in each case without the prior consent of Requisite Lenders (or such other Lenders as may be required to give such instructions under subsection 10.6); provided further, however, that, without further written consent or authorization from Lenders, Collateral Agent may execute any documents or instruments necessary to (a) release any Lien encumbering any item of Collateral that is the subject of a sale or other disposition of assets permitted by this Agreement or to which Requisite Lenders have otherwise consented or (b) release any Subsidiary from its Guaranty if all of the capital stock of such Subsidiary is sold to any Person (other than an Affiliate of Company) pursuant to a sale or other disposition permitted hereunder or to which Requisite Lenders have otherwise consented. Anything contained in any of the Loan Documents to the contrary notwithstanding, Company, Collateral Agent and each Lender hereby agree that (X) no Lender shall have any right individually to realize upon any of the Collateral under any Collateral Document or to enforce the Guaranties, it being understood and agreed that all powers, rights and remedies under the Collateral Documents and the Guaranties may be exercised solely by Collateral Agent for the benefit of Lenders in accordance with the terms thereof, and (Y) in the event of a foreclosure by Collateral Agent on any of the Collateral pursuant to a public or private sale, Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and Collateral Agent, as agent for and representative of Lenders (but not any Lender or Lenders in its or their respective individual capacities unless Requisite Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by Collateral Agent at such sale. Section 10. MISCELLANEOUS 10.1 Assignments and Participations in Loans and Letters of Credit. A. General. Subject to subsection 10.1B, each Lender shall have the right at any time (i) to sell, assign or transfer to any Eligible Assignee, or (ii) to sell participations to any Person in, all or any part of its Commitments or any Loan or Loans made by it or its Letters of Credit or participations therein or any other interest herein or in any other Obligations owed to it; provided that no such sale, assignment, transfer or participation shall, without the consent of Company, require Company to file a registration statement with the SEC or apply to qualify such sale, assignment, transfer or participation under the securities laws of any state; provided, further that no such sale, assignment or transfer described in clause (i) above shall be effective unless and until an Assignment Agreement effecting such sale, assignment or transfer shall have been 129 accepted by Administrative Agent and recorded in the Register as provided in subsection 10.1B(ii); provided, further that no sale, assignment or transfer of any Sterling Loan shall be made except to a U.K. Qualifying Bank and any sale, assignment or transfer of any Tranche A Term Loan shall be made pro rata with a sale, assignment or transfer of such Lender's other Tranche A Term Loans; provided, further that no such sale, assignment, transfer or participation of any Letter of Credit or any participation therein may be made separately from a sale, assignment, transfer or participation of a corresponding interest in the Revolving Loan Commitment and the Revolving Loans of the Lender effecting such sale, assignment, transfer or participation; and provided, further that, anything contained herein to the contrary notwithstanding, the Swing Line Loan Commitment and the Swing Line Loans of Swing Line Lender may not be sold, assigned or transferred as described in clause (i) above to any Person other than a successor Administrative Agent and Swing Line Lender to the extent contemplated by subsection 9.5. Except as otherwise provided in this subsection 10.1, no Lender shall, as between Company and such Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment or transfer of, or any granting of participations in, all or any part of its Commitments or the Loans, the Letters of Credit or participations therein, or the other Obligations owed to such Lender. B. Assignments. (i) Amounts and Terms of Assignments. Each Commitment, Loan, Letter of Credit or participation therein, or other Obligation may (a) be assigned in any amount to another Lender, or to an Affiliate of the assigning Lender or another Lender, with the giving of notice to Company and Administrative Agent or (b) be assigned in an aggregate amount of not less than $5,000,000 (or such lesser amount as shall constitute the aggregate amount of the Commitments, Loans, Letters of Credit and participations therein, and other Obligations of the assigning Lender) to any other Eligible Assignee with the consent of Company and Administrative Agent (which consent of Company and Administrative Agent shall not be unreasonably withheld or delayed); provided, that the consent of Company shall not be required for any assignment that occurs at any time when an Event of Default under subsection 8.6 or 8.7 shall have occurred and be continuing and; provided, further that Sterling Loans may only be assigned to a U.K. Qualifying Bank. To the extent of any such assignment in accordance with either clause (a) or (b) above, the assigning Lender shall be relieved of its obligations with respect to its Commitments, Loans, Letters of Credit or participations therein, or other Obligations or the portion thereof so assigned. The parties to each such assignment shall execute and deliver to Administrative Agent, for its acceptance and recording in the Register, an Assignment Agreement, together with a processing and recordation fee of $3,500 and such forms, certificates or other evidence, if any, with respect to United States federal income tax withholding matters and United Kingdom tax matters as the assignee under such Assignment Agreement may be required to deliver to Administrative Agent pursuant to 130 subsections 2.7B(iii)(a) and 2.7B(iv)(a). Upon such execution, delivery, acceptance and recordation, from and after the effective date specified in such Assignment Agreement, (y) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment Agreement, shall have the rights and obligations of a Lender hereunder and (z) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment Agreement, relinquish its rights (other than any rights which survive the termination of this Agreement under subsection 10.8B) and be released from its obligations under this Agreement (and, in the case of an Assignment Agreement covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto; provided that, anything contained in any of the Loan Documents to the contrary notwithstanding, if such Lender is the Issuing Lender with respect to any outstanding Letters of Credit such Lender shall continue to have all rights and obligations of an Issuing Lender with respect to such Letters of Credit until the cancellation or expiration of such Letters of Credit and the reimbursement of any amounts drawn thereunder). The Commitments hereunder shall be modified to reflect the Commitment of such assignee and any remaining Commitment of such assigning Lender and, if any such assignment occurs after the issuance of any Notes hereunder, the assigning Lender shall, upon the effectiveness of such assignment or as promptly thereafter as practicable, surrender its applicable Notes, if any, to Administrative Agent for cancellation, and thereupon new Notes shall, if so requested by the assignee and/or the assigning Lender in accordance with subsection 2.1E, be issued to the assignee and to the assigning Lender, substantially in the form of Exhibit IV-A or Exhibit IV-B, Exhibit V, Exhibit VI or Exhibit VII annexed hereto, as the case may be, with appropriate insertions, to reflect the new Commitments and/or outstanding Tranche A Term Loans and/or Tranche B Term Loans and/or Tranche C Term Loans, as the case may be, of the assignee and the assigning Lender. (ii) Acceptance by Administrative Agent; Recordation in Register. Upon its receipt of an Assignment Agreement executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with the processing and recordation fee referred to in subsection 10.1B(i) and any forms, certificates or other evidence with respect to United States federal income tax withholding matters and United Kingdom tax matters that such assignee may be required to deliver to Administrative Agent pursuant to subsections 2.7B(iii)(a) and 2.7B(iv)(a), Administrative Agent shall, if Administrative Agent and Company have consented to the assignment evidenced thereby (in each case to the extent such consent is required pursuant to subsection 10.1B(i)), (a) accept such Assignment Agreement by executing a counterpart thereof as provided therein (which acceptance shall evidence any required consent of Administrative Agent to such assignment), (b) record the information contained therein in the Register, and (c) give prompt 131 notice thereof to Company. Administrative Agent shall maintain a copy of each Assignment Agreement delivered to and accepted by it as provided in this subsection 10.1B(ii). C. Participations. The holder of any participation, other than an Affiliate of the Lender granting such participation, shall not be entitled to require such Lender to take or omit to take any action hereunder except action directly affecting (i) the extension of the scheduled final maturity date of any Loan allocated to such participation or (ii) a reduction of the principal amount of or the rate of interest payable on any Loan allocated to such participation or a reduction of the fee payable in respect of any Letter of Credit allocated to such participation or a reduction of any commitment fee in respect of any Commitment allocated to such participation, and all amounts payable by Borrowers hereunder (including amounts payable to such Lender pursuant to subsections 2.6D, 2.7 and 3.6) shall be determined as if such Lender had not sold such participation. Borrowers and each Lender hereby acknowledge and agree that, solely for purposes of subsections 10.4 and 10.5, (a) any participation will give rise to a direct obligation of Company to the participant and (b) the participant shall be considered to be a "Lender". D. Assignments to Federal Reserve Banks and Fund Trustees. In addition to the assignments and participations permitted under the foregoing provisions of this subsection 10.1, any Lender may assign and pledge all or any portion of its Loans, the other Obligations owed to such Lender, and its Notes to any Federal Reserve Bank as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any operating circular issued by such Federal Reserve Bank and with the consent of Company and Administrative Agent any Lender which is an investment fund may pledge all or any portion of its Notes or Loans to its trustee in support of its obligations to its trustee; provided that (i) no Lender shall, as between Company and such Lender, be relieved of any of its obligations hereunder as a result of any such assignment and pledge and (ii) in no event shall such Federal Reserve Bank be considered to be a "Lender" or be entitled to require the assigning Lender to take or omit to take any action hereunder. E. Information. Each Lender may furnish any information concerning Company and its Subsidiaries in the possession of that Lender from time to time to assignees and participants (including prospective assignees and participants), subject to subsection 10.18. F. Representations of Lenders. Each Lender listed on the signature pages hereof hereby represents and warrants (i) that it is an Eligible Assignee described in clause (A) of the definition thereof; (ii) that it has experience and expertise in the making of loans such as the Loans; and (iii) that it will make its Loans for its own account in the ordinary course of its business and without a view to distribution of such Loans within the meaning of the Securities Act or the Exchange Act or other federal securities laws (it being understood that, subject to the provisions of this subsection 10.1, the disposition of 132 such Loans or any interests therein shall at all times remain within its exclusive control). Each Lender that becomes a party hereto pursuant to an Assignment Agreement shall be deemed to agree that the representations and warranties of such Lender contained in Section 2(c) of such Assignment Agreement are incorporated herein by this reference. 10.2 Expenses. Whether or not the transactions contemplated hereby shall be consummated, Company agrees to pay promptly (i) all the actual and reasonable costs and expenses of preparation of the Loan Documents and any consents, amendments, waivers or other modifications thereto; (ii) all the costs of furnishing all opinions by counsel for Company (including any opinions requested by Lenders as to any legal matters arising hereunder) and of Company's performance of and compliance with all agreements and conditions on its part to be performed or complied with under this Agreement and the other Loan Documents including with respect to confirming compliance with environmental, insurance and solvency requirements; (iii) the reasonable fees, expenses and disbursements of counsel to Administrative Agent (including allocated costs of internal counsel) in connection with the negotiation, preparation, execution and administration of the Loan Documents and any consents, amendments, waivers or other modifications thereto and any other documents or matters requested by Company; (iv) all the actual costs and reasonable expenses of creating and perfecting Liens in favor of Collateral Agent on behalf of Lenders pursuant to any Collateral Document, including filing fees, expenses and taxes, stamp or documentary taxes, search fees and reasonable fees, expenses and disbursements of counsel to Collateral Agent; (v) all the actual costs and reasonable expenses (including the reasonable fees, expenses and disbursements of any environmental consultants retained by Administrative Agent or its counsel) of obtaining and reviewing any environmental audits or reports provided for on or before the Closing Date; (vi) all the actual costs and reasonable expenses of the custody or preservation of any of the Collateral; (vii) all other actual and reasonable costs and expenses incurred by Syndication Agent, Documentation Agent and Administrative Agent in connection with the syndication of the Commitments and the negotiation, preparation and execution of the Loan Documents and any consents, amendments, waivers or other modifications thereto and the transactions contemplated thereby; and (viii) after the occurrence of an Event of Default, all costs and expenses, including reasonable attorneys' fees and costs of settlement, incurred by Administrative Agent, Collateral Agent and each Lender in enforcing any Obligations of or in collecting any payments due from any Loan Party hereunder or under the other Loan Documents by reason of such Event of Default (including in connection with the sale of, collection from, or other realization upon any of the Collateral or the enforcement of the Guaranties) or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of a "work-out" or pursuant to any insolvency or bankruptcy proceedings. 133 10.3 Indemnity. In addition to the payment of expenses pursuant to subsection 10.2, whether or not the transactions contemplated hereby shall be consummated, Company agrees to defend (subject to Indemnitees' selection of counsel), indemnify, pay and hold harmless Administrative Agent, Collateral Agent, Syndication Agent, Documentation Agent, each Lead Manager, each Co-Agent and each Lender, and the officers, directors, employees, trustees, partners, agents and affiliates of Administrative Agent, Collateral Agent, Syndication Agent, Documentation Agent, each Lead Manager, each Co-Agent and each Lender (collectively called the "Indemnitees"), from and against any and all Indemnified Liabilities (as hereinafter defined); provided that Company shall not have any obligation to any Indemnitee hereunder with respect to any Indemnified Liabilities to the extent such Indemnified Liabilities arise solely from the gross negligence or willful misconduct of that Indemnitee as determined by a final judgment of a court of competent jurisdiction. As used herein, "Indemnified Liabilities" means, collectively, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened by any Person, whether or not any such Indemnitee shall be designated as a party or a potential party thereto, and any fees or expenses incurred by Indemnitees in enforcing this indemnity), whether direct, indirect or consequential and whether based on any federal, state or foreign laws, statutes, rules or regulations (including securities and commercial laws, statutes, rules or regulations and Environmental Laws), on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against any such Indemnitee, in any manner relating to or arising out of (i) this Agreement or the other Loan Documents or the Related Agreements or the transactions contemplated hereby or thereby (including Lenders' agreement to make the Loans hereunder or the use or intended use of the proceeds thereof or the issuance of Letters of Credit hereunder or the use or intended use of any thereof, or any enforcement of any of the Loan Documents (including any sale of, collection from, or other realization upon any of the Collateral or the enforcement of the Guaranties), (ii) the statements contained in the commitment letter delivered by any Lender to Company with respect thereto, or (iii) any Environmental Claim or any Hazardous Materials relating to or arising from, directly or indirectly, any past or present activity, operation, land ownership, or practice of Company or any of its Subsidiaries. To the extent that the undertakings to defend, indemnify, pay and hold harmless set forth in this subsection 10.3 may be unenforceable in whole or in part because they are violative of any law or public policy, Company shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of them. 134 10.4 Set-Off. In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, upon the occurrence of any Event of Default each Lender is hereby authorized by each Borrower at any time or from time to time, without notice to such Borrower or to any other Person, any such notice being hereby expressly waived, to set off and to appropriate and to apply any and all deposits (general or special, including Indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts) and any other Indebtedness at any time held or owing by that Lender to or for the credit or the account of such Borrower against and on account of any obligations and liabilities of such Borrower then due and payable to that Lender under this Agreement, the Letters of Credit and participations therein and the other Loan Documents, irrespective of whether or not that Lender shall have made any demand for payment thereof. 10.5 Ratable Sharing. Lenders hereby agree among themselves that if any of them shall, whether by voluntary payment (other than a voluntary prepayment of Loans made and applied in accordance with the terms of this Agreement), by realization upon security, through the exercise of any right of set-off or banker's lien, by counterclaim or cross action or by the enforcement of any right under the Loan Documents or otherwise, or as adequate protection of a deposit treated as cash collateral under the Bankruptcy Code, receive payment or reduction of a proportion of the aggregate amount of principal, interest, amounts payable in respect of Letters of Credit, fees and other amounts then due and owing to that Lender hereunder or under the other Loan Documents (collectively, the "Aggregate Amounts Due" to such Lender) which is greater than the proportion received by any other Lender in respect of the Aggregate Amounts Due to such other Lender, then the Lender receiving such proportionately greater payment shall (i) notify Administrative Agent and each other Lender of the receipt of such payment and (ii) apply a portion of such payment to purchase participations (which it shall be deemed to have purchased from each seller of a participation simultaneously upon the receipt by such seller of its portion of such payment) in the Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion to the Aggregate Amounts Due to them; provided that if all or part of such proportionately greater payment received by such purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of Company or otherwise, those purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such purchasing Lender ratably to the extent of such recovery, but without interest. Company expressly consents to the foregoing arrangement and agrees that any holder of a participation so purchased may exercise any and all rights of banker's lien, set-off or counterclaim with respect to any and all monies owing by Company to that holder with respect thereto as fully as if that holder were owed the amount of the participation held by that holder. 135 10.6 Amendments and Waivers. A. No amendment, modification, termination or waiver of any provision of the Loan Documents, or consent to any departure by any Borrower therefrom, shall in any event be effective without the written concurrence of Requisite Lenders; provided that no such amendment, modification, termination, waiver or consent shall, without the consent of each Lender (with Obligations directly affected in the case of the following clause (i)): (i) extend the scheduled final maturity of any Loan or Note, or extend the stated expiration date of any Letter of Credit beyond the Revolving Loan Commitment Termination Date, or reduce the rate of interest on any Loan (other than any waiver of any increase in the interest rate applicable to any Loan pursuant to subsection 2.2E) or any commitment fees or letter of credit fees payable hereunder, or extend the time for payment of any such interest or fees, or reduce the principal amount of any Loan or any reimbursement obligation in respect of any Letter of Credit, (ii) amend, modify, terminate or waive any provision of this subsection 10.6, (iii) reduce the percentage specified in the definition of "Requisite Lenders" (it being understood that, with the consent of Requisite Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of "Requisite Lenders" on substantially the same basis as the Term Loan Commitments, the Term Loans, the Revolving Loan Commitments and the Revolving Loans are included on the Closing Date) or (iv) consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement; provided, further that no such amendment, modification, termination or waiver shall (1) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that no amendment, modification or waiver of any condition precedent, covenant, Potential Event of Default or Event of Default shall constitute an increase in the Commitment of any Lender, and that no increase in the available portion of any Commitment of any Lender shall constitute an increase in such Commitment of such Lender); (2) amend, modify, terminate or waive any provision of subsection 2.1A(v) or any other provision of this Agreement relating to the Swing Line Loan Commitment or the Swing Line Loans without the consent of Swing Line Lender; (3) so long as any Obligations of the applicable U.K. Borrower remain outstanding, consent to the sale of the stock of all or substantially all of the assets of such U.K. Borrower, or release Company from its guaranty of the Obligations of such U.K. Borrower under the Company Guaranty, without the consent of the Tranche A Lenders; (4) amend the definition of "Supermajority Class Lenders" without the consent of the Supermajority Class Lenders of each Class, or release all or substantially all of the Collateral or all or substantially all of the Subsidiary Guarantors from the Subsidiary Guaranty except as expressly provided in the Loan Documents, without the consent of the Supermajority Class Lenders of each Class, (5) amend the definition of "Requisite Class Lenders" without the consent of Requisite Class Lenders of each Class, or alter the required application of any repayments or prepayments as between Classes pursuant to subsection 2.4B(iv) without the consent of Requisite Class Lenders of each Class which is being allocated a lesser repayment or prepayment as a result thereof (although Requisite Lenders may waive, in whole or in part, any mandatory prepayment so long as the 136 application, as between Classes, of any portion of such prepayment which is still required to be made is not altered); (6) without the consent of Requisite Class Lenders of the respective Class, waive, reduce or postpone any scheduled repayment set forth in subsection 2.4A(i), (ii) or (iii) with respect to the applicable Term Loans of such affected Class; (7) amend, modify, terminate or waive any obligation of Lenders relating to the purchase of participations in Letters of Credit as provided in subsection 3.1C without the written concurrence of Administrative Agent and of each Issuing Lender which has a Letter of Credit then outstanding or which has not been reimbursed for a drawing under a Letter of Credit issued it; or (8) amend, modify, terminate or waive any provision of Section 9 as the same applies to Administrative Agent, or any other provision of this Agreement as the same applies to the rights or obligations of Administrative Agent, in each case without the consent of Administrative Agent. B. Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or consents on behalf of that Lender. Any waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower in any case shall entitle any Borrower to any other or further notice or demand in similar or other circumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this subsection 10.6 shall be binding upon each Lender at the time outstanding, each future Lender and, if signed by any Borrower, such Borrower. 10.7 Notices. Unless otherwise specifically provided herein, any notice or other communication herein required or permitted to be given shall be in writing and may be personally served, telexed or sent by telefacsimile or United States mail or courier service and shall be deemed to have been given when delivered in person or by courier service, upon receipt of telefacsimile or telex, or three Business Days after depositing it in the United States mail with postage prepaid and properly addressed; provided that notices to either Agent shall not be effective until received. For the purposes hereof, the address of each party hereto shall be as set forth under such party's name on the signature pages hereof or (i) as to Company and each Agent, such other address as shall be designated by such Person in a written notice delivered to the other parties hereto and (ii) as to each other party, such other address as shall be designated by such party in a written notice delivered to Administrative Agent. 10.8 Survival of Representations, Warranties and Agreements. A. All representations, warranties and agreements made herein shall survive the execution and delivery of this Agreement and the making of the Loans and the issuance of the Letters of Credit hereunder. 137 B. Notwithstanding anything in this Agreement or implied by law to the contrary, the agreements of Borrowers set forth in subsections 2.6D, 2.7, 3.5A, 3.6, 10.2, 10.3 and 10.4 and the agreements of Lenders set forth in subsections 9.2C, 9.4 and 10.5 shall survive the payment of the Loans, the cancellation or expiration of the Letters of Credit and the reimbursement of any amounts drawn thereunder, and the termination of this Agreement. 10.9 Failure or Indulgence Not Waiver; Remedies Cumulative. No failure or delay on the part of any Agent or any Lender in the exercise of any power, right or privilege hereunder or under any other Loan Document shall impair such power, right or privilege or be construed to be a waiver of any default or acquiescence therein, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other power, right or privilege. All rights and remedies existing under this Agreement and the other Loan Documents are cumulative to, and not exclusive of, any rights or remedies otherwise available. 10.10 Marshalling; Payments Set Aside. Neither Administrative Agent, nor Collateral Agent nor any Lender shall be under any obligation to marshal any assets in favor of Company or any other party or against or in payment of any or all of the Obligations. To the extent that any Borrower makes a payment or payments to either Agent or Lenders (or to either Agent for the benefit of Lenders), or either Agent or Lenders enforce any security interests or exercise their rights of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, any other state or federal law, common law or any equitable cause, then, to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor or related thereto, shall be revived and continued in full force and effect as if such payment or payments had not been made or such enforcement or setoff had not occurred. 10.11 Severability. In case any provision in or obligation under this Agreement or the Notes shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. 138 10.12 Obligations Several; Independent Nature of Lenders' Rights. The obligations of Lenders hereunder are several and no Lender shall be responsible for the obligations or Commitments of any other Lender hereunder. Nothing contained herein or in any other Loan Document, and no action taken by Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a partnership, an association, a joint venture or any other kind of entity. The amounts payable at any time hereunder to each Lender shall be a separate and independent debt, and each Lender shall be entitled to protect and enforce its rights arising out of this Agreement and it shall not be necessary for any other Lender to be joined as an additional party in any proceeding for such purpose. 10.13 Headings. Section and subsection headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose or be given any substantive effect. 10.14 Applicable Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. 10.15 Successors and Assigns. This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and the successors and assigns of Lenders (it being understood that Lenders' rights of assignment are subject to subsection 10.1). No Borrower's rights or obligations hereunder or under the other Loan Documents nor any interest therein may be assigned or delegated by such Borrower without the prior written consent of all Lenders. 10.16 Consent to Jurisdiction and Service of Process. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY BORROWER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY 139 EXECUTING AND DELIVERING THIS AGREEMENT, EACH BORROWER, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO SUCH BORROWER AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SUBSECTION 10.7; (IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER SUCH BORROWER IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; (V) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST SUCH BORROWER IN THE COURTS OF ANY OTHER JURISDICTION; AND (VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 10.16 RELATING TO JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402 OR OTHERWISE. 10.17 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS AMONG THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver is intended to be all-encompassing of any and all disputes that may be filed in any court and that relate to the subject matter of this transaction, including contract claims, tort claims, breach of duty claims and all other common law and statutory claims. Each party hereto acknowledges that this waiver is a material inducement to enter into a business relationship, that each has already relied on 140 this waiver in entering into this Agreement, and that each will continue to rely on this waiver in their related future dealings. Each party hereto further warrants and represents that it has reviewed this waiver with its legal counsel and that it knowingly and voluntarily waives its jury trial rights following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION 10.17 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court. 10.18 Confidentiality. Each Lender shall hold all non-public information obtained pursuant to the requirements of this Agreement which has been identified as confidential by Company in accordance with such Lender's customary procedures for handling confidential information of this nature and in accordance with safe and sound banking practices, it being understood and agreed by each Borrower that in any event a Lender may make disclosures to Affiliates of such Lender or disclosures reasonably required by any bona fide assignee, transferee or participant in connection with the contemplated assignment or transfer by such Lender of any Loans or any participations therein or disclosures required or requested by any governmental agency or representative thereof, or the National Association of Insurance Commissioners (the "NAIC") or any other Person with the prior written consent of Company and Administrative Agent in the exercise of their respective sole discretion or pursuant to legal process; provided that, unless specifically prohibited by applicable law or court order, each Lender shall notify Company of any request by any governmental agency or representative thereof or the NAIC (other than any such request in connection with any examination of the financial condition of such Lender by such governmental agency or the NAIC) for disclosure of any such non-public information prior to disclosure of such information; and provided, further that in no event shall any Lender be obligated or required to return any materials furnished by Company or any of its Subsidiaries. 10.19 Counterparts; Effectiveness. This Agreement and any amendments, waivers, consents or supplements hereto or in connection herewith may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically 141 attached to the same document. This Agreement shall become effective upon the execution of a counterpart hereof by each of the parties hereto and receipt by Company and Administrative Agent of written or telephonic notification of such execution and authorization of delivery thereof. 10.20 Judgment Currency. A. Currency Conversion Rate. If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder in any currency (the "Original Currency") into another currency (the "Other Currency"), the parties hereto agree, to the fullest extent permitted by law, that the rate of exchange used shall be that at which in accordance with normal banking procedures Administrative Agent could purchase the Original Currency with the Other Currency on the Business Day preceding that on which final judgment is given. B. Discharge of Judgment. The obligations of each Borrower in respect of any sum due from it to Lenders hereunder shall, notwithstanding any judgment in such Other Currency, be discharged only to the extent that, on the Business Day following receipt by Administrative Agent of any sum adjudged to be so due in the Other Currency, Administrative Agent may in accordance with normal banking procedures purchase the Original Currency with the Other Currency; if the Original Currency so purchased is less than the sum originally due to Lenders in the Original Currency, such Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify Lenders against such loss, and if the amount of the Original Currency so purchased exceeds the sum originally due to Lenders in the Original Currency, Lenders shall remit such excess to such Borrower. 10.21 European Monetary Union. It is hereby acknowledged that during the term of this Agreement the United Kingdom may adopt a single European currency as its lawful currency in place of Sterling as part of the anticipated European Economic and Monetary Union. It is hereby acknowledged and agreed that "Sterling", as defined herein, shall include any such successor currency and that conversion into such successor currency shall be made at the official rate of conversion on the date on which Sterling is so replaced, and that the denomination of the original currency shall be retained hereunder for so long as it is legally permissible. It is hereby further acknowledged and agreed that the provisions of this Agreement relating to Sterling Loans shall remain in full force and effect upon such conversion, and that neither the introduction of a single European currency, the replacement of Sterling thereby, the fixing of the official rate of conversion, nor any economic consequences resulting therefrom shall give rise to any right to terminate, contest, cancel, modify or renegotiate the provisions of this Agreement. [Remainder of page intentionally left blank] 142 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above. COMPANY: AMPHENOL CORPORATION By: ------------------------------------------ Edward G. Jepsen Executive Vice President & CFO Notice Address: 358 Hall Avenue Wallingford, Connecticut 06492 Attention: Treasurer Facsimile: (203) 265-8628 S-1 U.K. BORROWERS: AMPHENOL HOLDING UK, LIMITED By: ------------------------------------------ Martin H. Loeffler Managing Director AMPHENOL COMMERCIAL & INDUSTRIAL UK, LIMITED By: ------------------------------------------ Martin H. Loeffler Managing Director Notice Address for the U.K. Borrowers: c/o Amphenol Corporation 358 Hall Avenue Wallingford, Connecticut 06492 Attention: Treasurer Facsimile: (203) 265-8628 S-2 AGENTS AND LENDERS: THE CHASE MANHATTAN BANK, individually and as Syndication Agent By: ------------------------------------------ Peter Eckstein Vice President Notice Address: 270 Park Avenue, 10th Floor New York, New York 10017-2070 Attention: Stephanie Parker Telephone: (212) 270-6532 Facsimile: (212) 270-1403 S-3 THE BANK OF NEW YORK, individually and as Documentation Agent By: ------------------------------------------ Nancy McEwen Vice President Notice Address: One Wall Street New York, New York 10286 Attention: Telephone: Facsimile: S-4 BANKERS TRUST COMPANY, individually and as Administrative Agent By: ------------------------------------------ Mary Jo Jolly Assistant Vice President Notice Address: 130 Liberty Plaza 14th Floor New York, New York 10006 Attention: Ariana Boer Telephone: (212) 250-7346 Facsimile: (212) 250-7351 with a copy to: 300 South Grand Avenue 41st Floor Los Angeles, California 90071 Attention: Michael R. Duckworth Telephone: (213) 620-8289 Facsimile: (213) 620-8484 S-5 ALLIEDSIGNAL INC. By: ------------------------------------------ Frank X. Whitley Senior Vice Pres. - Shenicman Capital Mgmt., as Attorney-in-Fact Notice Address: 461 5th Avenue New York, New York 10017 Attention: Niall Rosenzweig Telephone: (212) 867-9090 Facsimile: (212) 867-9106 S-6 ALLSTATE INSURANCE COMPANY By: ------------------------------------------ Judith P. Greffin Authorized Signatory By: ------------------------------------------ Jerry D. Zinkula Authorized Signatory ALLSTATE LIFE INSURANCE COMPANY By: ------------------------------------------ Judith Greffin Authorized Signatory By: ------------------------------------------ Jerry D. Zinkula Authorized Signatory Notice Address: 3075 Sanders Road, STE G3A Northbrook, Illinois 60062-7127 Attention: Daniel Leimbach Telephone: (847) 402-9155 Facsimile: (847) 402-3092 S-7 BANQUE FRANCAISE DU COMMERCE EXTERIEUR By: ------------------------------------------ Peter Karl Harris Vice President By: ------------------------------------------ William C. Maier VP - Group Manager Notice Address: 645 5th Avenue New York, New York 10022 Attention: Peter Harris Telephone: (212) 872-5180 Facsimile: (212) 872-5045 S-8 BANK OF AMERICA ILLINOIS By: ------------------------------------------ Eugene Martin Vice President Notice Address: 335 Madison Avenue New York, New York 10017 Attention: Eugene Martin Telephone: (212) 503-7512 Facsimile: (212) 503-7502 S-9 BANKBOSTON, N.A. By: ------------------------------------------ C. Andrew Piculell Vice President Notice Address: 100 Federal Street Mail Stop 01-08-05 Boston, Massachusetts 02110 Attention: C. Andrew Piculell Telephone: (617) 434-4060 Facsimile: (617) 434-4929 S-10 THE BANK OF NOVA SCOTIA By: ------------------------------------------ John Hopmans Senior Relationship Manager Notice Address: One Liberty Plaza New York, New York 10006 Attention: John Hopmans Telephone: (212) 225-5009 Facsimile: (212) 225-5090 S-11 THE BANK OF TOKYO - MITSUBISHI, LTD. By: ------------------------------------------ Nick Campbell Attorney-in-Fact Notice Address: 12th Floor 1251 Avenue of the Americas New York, New York 10020 Attention: Nick Campbell Telephone: (212) 782-4268 Facsimile: (212) 782-4981 S-12 BANQUE PARIBAS By: ------------------------------------------ John J. McCormick, III Vice President By: Mary T. Finnegan Group Vice President Notice Address: 787 Seventh Avenue New York, New York 10019 Attention: John J. McCormick, III Telephone: (212) 841-2382 Facsimile: (212) 841-2333 S-13 CANADIAN IMPERIAL BANK OF COMMERCE By: ------------------------------------------ Tim Doyle Authorized Signatory Notice Address: 425 Lexington Avenue, 8th Floor New York, New York 10017 Attention: Tim Doyle Telephone: (212) 856-3650 Facsimile: (212) 856-3991 S-14 CITICORP USA, INC. By: ------------------------------------------ Jeroen Fikke Attorney-in-Fact CITIBANK, N.A., LONDON By: ------------------------------------------ Jeroen Fikke Attorney-in-Fact Notice Address: 399 Park Avenue, 6th Floor/Zone 4 New York, New York 10043 Attention: George Dewey Telephone: (212) 559-3043 Facsimile: (212) 758-6278 S-15 CORESTATES BANK, N.A. By: ------------------------------------------ Mark S. Supple Vice President Notice Address: 1339 Chestnut Street, FC# 1-8-4-16 Philadelphia, Pennsylvania 19107-3579 Attention: Mark S. Supple Telephone: (215) 973-2562 Facsimile: (215) 973-6680 S-16 CREDIT LYONNAIS NEW YORK BRANCH By: ------------------------------------------ Attila Koc Vice President Notice Address: 1301 Avenue of the Americas New York, New York 10019 Attention: Michael Regan Telephone: (212) 261-7286 Facsimile: (212) 459-3176 S-17 CREDIT SUISSE FIRST BOSTON By: ------------------------------------------ Edward E. Barr Associate By: ------------------------------------------ Joel Glodowski Managing Director Notice Address: 11 Madison Avenue New York, New York 10010 Attention: Ed Barr Telephone: (212) 325-9151 Facsimile: (212) 325-8309 S-18 THE DAI-ICHI KANGYO BANK, LTD. By: ------------------------------------------ Stephanie Rogers Vice President Notice Address: Suite 4911 One World Trade Center New York, New York 10048 Attention: Stephanie Rogers Telephone: (212) 432-6648 Facsimile: (212) 432-8955 S-19 PRIME INCOME TRUST By: ------------------------------------------ Rafael Scolari Vice President Notice Address: c/o Dean Witter Intercapital 2 World Trade Center, 72nd Floor New York, New York 10048 Attention: Louis Pistecchia Telephone: (212) 392-5845 Facsimile: (212) 392-5345 S-20 DLJ CAPITAL FUNDING, INC. By: ------------------------------------------ Stephen P. Hickey Managing Director Notice Address: 277 Park Avenue, 9th Floor New York, New York 10172 Attention: Kevin King Telephone: (212) 892-2403 Facsimile: (212) 892-5286 Fox Plaza, 30th Floor 2121 Avenue of the Stars, Los Angeles, California 90067 Attention: Eric Swanson Telephone: (310) 282-7447 Facsimile: (310) 282-6178 S-21 DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES By: ------------------------------------------ William E. Lambert Assistant Vice President By: ------------------------------------------ Robert Grella Vice President Notice Address: 75 Wall Street New York, New York 10005 Attention: Robert Grella Telephone: (212) 429-2252 Facsimile: (212) 429-2129 S-22 FIRST UNION BANK OF NORTH CAROLINA By: ------------------------------------------ Jorge Gonzalez Senior Vice President Notice Address: 301 South College Street, DC-5 Charlotte, North Carolina 28288 Attention: Jorge Gonzalez Telephone: (704) 383-8461 Facsimile: (704) 374-3300 S-23 FIRSTRUST BANK By: ------------------------------------------ Ed D'Ancona Vice President Notice Address: 1931 Cottman Avenue Philadelphia, Pennsylvania 19111-3897 Attention: Kent Nelson Telephone: (215) 728-8285 Facsimile: (215) 728-8767 S-24 FLEET NATIONAL BANK By: ------------------------------------------ Eric Vander Mel Vice President Notice Address: One Federal Street, MAOFDO3C Boston, Massachusetts 02211 Attention: Eric Vander Mel Telephone: (617) 346-4853 Facsimile: (617) 346-4806 S-25 THE FUJI BANK, LIMITED By: ------------------------------------------ Teiji Teramoto Vice President & Manager Notice Address: Two World Trade Center, 79th Floor New York, New York 10048 Attention: Teiji Teramoto Telephone: (212) 898-2061 Facsimile: (212) 912-0516 S-26 GOLDMAN SACHS CREDIT PARTNERS L.P. By: ------------------------------------------ Robert O'Shea Authorized Signatory Notice Address: 85 Broad Street New York, New York 10004 Attention: Tracy McCaffrey Telephone: (212) 902-1040 Facsimile: (212) 357-4597 S-27 THE INDUSTRIAL BANK OF JAPAN, LIMITED By: ------------------------------------------ Takuya Honjo Senior Vice President Notice Address: 1251 Avenue of the Americas New York, New York 10020-1104 Attention: Ken Takehisa Telephone: (212) 282-3321 Facsimile: (212) 282-4490 S-28 ING CAPITAL SENIOR SECURED HIGH INCOME FUND, L.P. By: ING CAPITAL ADVISORS, INC., as Investment Advisor By: ------------------------------------------ Kathleen A. Lenarcic Vice President & Portfolio Manager Notice Address: 333 South Grand Avenue, Suite 4250 Los Angeles, California 90071 Attention: Kathleen Lenarcic Telephone: (213) 346-3971 Facsimile: (213) 346-3995 S-29 KZH HOLDING CORPORATION By: ------------------------------------------ Robert Goodwin Authorized Agent Notice Address: c/o The Chase Manhattan Bank 450 West 33rd Street, 15th Floor New York, New York 10001 Attention: Robert Goodwin/Joseph Nerich Telephone: (212) 946-7776 S-30 KZH HOLDING CORPORATION II By: ------------------------------------------ Robert Goodwin Authorized Agent Notice Address: c/o The Chase Manhattan Bank 450 West 33rd Street, 15th Floor New York, New York 10001 Attention: Robert Goodwin/Joseph Nerich Telephone: (212) 946-7776 S-31 LEHMAN COMMERCIAL PAPER INC. By: ------------------------------------------ Dennis J. Dee Authorized Signatory Notice Address: 3 World Financial Center, 10th Floor New York, New York 10285 Attention: Michele Swanson Telephone: (212) 526-0330 Facsimile: (212) 528-0819 S-32 LLOYDS BANK PLC By: ------------------------------------------ Michael J. Gilligan Vice President By: ------------------------------------------ Steve Attree Assistant Vice President Notice Address: 199 Water Street New York, New York 10038 Attention: Michael Gilligan Telephone: (212) 607-4954 Facsimile: (212) 607-4999/5410 S-33 THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED By: ------------------------------------------ Shuichi Tajima Deputy General Manager Notice Address: 165 Broadway, 49th Floor New York, New York 10006 Attention: Jay Shankar Telephone: (212) 335-4525 Facsimile: (212) 608-2371 S-34 MARINE MIDLAND BANK By: ------------------------------------------ John Lyons Senior Vice President Notice Address: 140 Broadway, 5th Floor New York, New York 10005 Attention: Gina Sidorsky Telephone: (212) 658-2750 Facsimile: (212) 658-2586 S-35 MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY By: ------------------------------------------ Mary Ann McCarthy Managing Director Notice Address: 1295 State Street Springfield, Massachusetts 01111 Attention: John Wheeler Telephone: (413) 744-6228 Facsimile: (413) 744-6127 S-36 SENIOR HIGH INCOME PORTFOLIO, INC. By: ------------------------------------------ Gilles Marchand, CFA Authorized Signatory Notice Address: c/o Merrill Lynch Asset Management 800 Scudders Mill Road Plainsboro, New Jersey 08536 Attention: Gil Marchand, CFA Telephone: (609) 282-3102 Facsimile: (609) 282-2550 S-37 METROPOLITAN LIFE INSURANCE COMPANY By: ------------------------------------------ James Dingler Assistant Vice President Notice Address: 334 Madison Avenue Convent Station, New Jersey 07961-0633 Attention: James Dingler Telephone: (201) 254-3206 Facsimile: (201) 254-3050 S-38 THE MITSUBISHI TRUST AND BANKING CORPORATION By: ------------------------------------------ Patricia Loret de Mola Senior Vice President Notice Address: 520 Madison Avenue, 26th Floor New York, New York 10022 Attention: Beatrice Kossodo Telephone: (212) 891-8363 Facsimile: (212) 644-6825 S-39 NATIONAL WESTMINSTER BANK PLC By: ------------------------------------------ W. Wakefield Smith Vice President Notice Address: 175 Water Street New York, New York 10038 Attention: W. Wakefield Smith Telephone: (212) 602-8969 Facsimile: (212) 602-4319 S-40 NATIONSBANK, N.A. By: ------------------------------------------ Kerry Shute Vice President Notice Address: 100 North Tryon Street NC 1-007-07-01 Charlotte, North Carolina 28255 Attention: Caryn Chittenden Telephone: (704) 388-5559 Facsimile: (704) 388-0922 S-41 NEW YORK LIFE INSURANCE COMPANY By: ------------------------------------------ Andrew H. Steuerman Investment Manager Notice Address: Room 206 51 Madison Avenue New York, New York 10010 Attention: Andrew Steuerman Telephone: (212) 576-576-5649 Facsimile: (212) 447-4122 S-42 THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY By: ------------------------------------------ Jerome R. Baler Vice President Notice Address: 720 E. Wisconsin Avenue Milwaukee, Wisconsin 53202 Attention: Richard A. Strait Telephone: (414) 299-7350 Facsimile: (414) 299-7124 S-43 OCTAGON CREDIT INVESTORS LOAN PORTFOLIO (A UNIT OF THE CHASE MANHATTAN BANK) By: ------------------------------------------ Joyce DeLucca Managing Director Notice Address: 380 Madison Avenue, 12th Floor New York, New York 10017 Attention: Joyce C. DeLucca Telephone: (212) 622-3104 Facsimile: (212) 622-3797 S-44 PARIBAS CAPITAL FUNDING LLC By: ------------------------------------------ Eric Green Director Notice Address: 787 Seventh Avenue, 32nd Floor New York, New York 10019 Attention: Michael Weinberg Telephone: (212) 841-2544 Facsimile: (212) 841-2144 S-45 PPM AMERICA, INC., as Attorney in Fact, on behalf of JACKSON NATIONAL LIFE INSURANCE COMPANY By: ------------------------------------------ Michael DiRe Managing Director Notice Address: c/o PPM America, Inc. Suite 1200 225 West Wacker Drive Chicago, Illinois 60606-1228 Attention: Michael DiRe Telephone: (312) 634-2509 Facsimile: (312) 634-0054 S-46 ROYAL BANK OF CANADA By: ------------------------------------------ Sheryl L. Greenberg Senior Manager Notice Address: A. For all matters except those covered by B: Royal Bank of Canada Grand Cayman (North America No.1) Branch c/o New York Branch Financial Square, 23rd Floor 32 Old Slip New York, New York 10005-3531 Attention: Manager, Credit Administration Telephone: (212) 428-6204 Facsimile: (212) 428-2372 with a copy to: Financial Square, 24th Floor 32 Old Slip New York, New York 10005-3531 Attention: Sheryl L. Greenberg, Senior Manager Telephone: (212) 428-6476 Facsimile: (212) 428-6489 B. For matters related to Sterling Loans to U.K. Borrowers: Royal Bank of Canada, London Branch 71 Queen Victoria Street London EC4V 4DE, England Attention: Sarah Hood Telephone: (44-171) 653-4066 Facsimile: (44-171) 332-0036 with a copy to: Financial Square, 24th Floor 32 Old Slip New York, New York 10005-3531 Attention: Sheryl L. Greenberg Senior Manager Telephone: (212) 428-6476 Facsimile: (212) 428-6459 S-47 THE SAKURA BANK, LTD. By: ------------------------------------------ Yoshikazu Nagura Vice President Notice Address: 277 Park Avenue, 45th floor New York, New York 10172 Attention: Atsushi Horikawa Telephone: (212) 756-6769 Facsimile: (212) 888-7651 S-48 THE SANWA BANK, LIMITED By: ------------------------------------------ Christian Kambour Vice President Notice Address: 55 East 52nd Street New York, New York 10055 Attention: Christian Kambour Telephone: (212) 339-6232 Facsimile: (212) 754-1304 S-49 SOCIETE GENERALE By: ------------------------------------------ John M. Stack Vice President Notice Address: 1221 Avenue of the Americas New York, New York 10020 Attention: John Stack Telephone: (212) 278-6402 Facsimile: (212) 278-6178 S-50 SOUTHERN PACIFIC THRIFT & LOAN ASSOCIATION By: ------------------------------------------ Chris Kelleher Vice President Notice Address: 12300 Wilshire Boulevard Los Angeles, Califonia 90025 Attention: Chris Kelleher Telephone: (310) 442-3351 Facsimile: (310) 207-4067 S-51 THE SUMITOMO BANK, LIMITED, NEW YORK BRANCH By: ------------------------------------------ John C. Kissinger Joint General Manager Notice Address: 277 Park Avenue New York, New York 10172 Attention: Gregory Aptman Telephone: (212) 224-4131 Facsimile: (212) 224-5188 S-52 TCW ASSET MANAGEMENT COMPANY, as attorney-in-fact for INTEGON LIFE INSURANCE COMPANY By: ------------------------------------------ Justin Driscoll Senior Vice President Notice Address: 200 Park Avenue, Suite 2200 New York, New York 10166-0228 Attention: Justin Driscoll Telephone: (212) 297-4000 Facsimile: (212) 297-4159 S-53 TCW ASSET MANAGEMENT COMPANY, as attorney-in-fact for UNITED COMPANIES LIFE INSURANCE COMPANY By: ------------------------------------------ Justin Driscoll Senior Vice President Notice Address: 200 Park Avenue, Suite 2200 New York, New York 10166-0228 Attention: Justin Driscoll Telephone: (212) 297-4000 Facsimile: (212) 297-4159 S-54 CRESCENT/MACH I PARTNERS, L.P. By: TCW ASSET MANAGEMENT COMPANY, Its Investment Manager By: --------------------------------------- Justin Driscoll Senior Vice President Notice Address: 200 Park Avenue, Suite 2200 New York, New York 10166-0228 Attention: Justin Driscoll Telephone: (212) 297-4000 Facsimile: (212) 297-4159 S-55 THE TRAVELERS INSURANCE COMPANY By: ------------------------------------------ John W. Petchler Second Vice President Notice Address: 1 Tower Square, 9-PB Hartford, Connecticut 06183-2030 Attention: John Petchler Telephone: (860) 277-5346 Facsimile: (860) 954-5243 S-56 VAN KAMPEN AMERICAN CAPITAL PRIME RATE INCOME TRUST By: ------------------------------------------ Jeffrey W. Maillet Sr. Vice President - Portfolio Manager Notice Address: One Parkview Plaza Oakbrook Terrace, IL 60181 Attention: Jeffrey Maillet Telephone: (630) 684-6438 Facsimile: (630) 684-6740/6741 S-57 CAISSE NATIONALE DE CREDIT AGRICOLE By: ------------------------------------------ R. Craig Welch First Vice President Notice Address: 520 Madison Avenue 8th Floor New York, New York 10022 Attention: John McCloskey Telephone: (212) 418-2217 S-58 MEDICAL LIABILITY MUTUAL INSURANCE COMPANY By: ------------------------------------------ K. Wayne Kahle Vice President Notice Address: Chancellor Senior Secured Management, Inc. 1166 Avenue of the Americas 27th Floor New York, New York 10036 Attention: Stephen M. Alfieri Telephone: (212) 278-9563 Facsimile: (212) 278-9619 S-59 GOLDMAN SACHS INTERNATIONAL BANK By: ------------------------------------------ Robert O'Shea Authorized Signatory Notice Address: Peterborough Court 133 Fleet Street London EC4A 2BB, England Attention: Telephone: Facsimile: S-60 FLOATING RATE PORTFOLIO By: CHANCELLOR LGT SENIOR SECURED MANAGEMENT INC., as Attorney-in-Fact By: ------------------------------------ Gregory L. Smith Vice President Notice Address: GT Global Floating Rate Fund, Inc. c/o Chancellor LGT Senior Secured Management, Inc. 1166 Avenue of the Americas New York, New York 10036 Attention: Susan McKofke Facsimile: (212) 278-9847 S-61 DEEPROCK & COMPANY By: EATON VANCE MANAGEMENT, as Investment Advisor By: ----------------------------------- Payson F. Swaffield Vice President Notice Address: Eaton Vance Management 6th Floor 24 Federal Street Boston, MA 02110 Attention: Juliana Riley Facsimile: (617) 695-9594 S-62 EX-10.13 8 MANAGEMENT STOCKHOLDERS AGMT W/ MARTIN LOEFFLER EXHIBIT 10.13 MANAGEMENT STOCKHOLDER'S AGREEMENT This Management Stockholder's Agreement (this "Agreement") is entered into as of May 19, 1997 between Amphenol Corporation, a Delaware Corporation (the "Company"), and Martin Loeffler (the "Management Stockholder") (the Company and the Management Stockholder being hereinafter collectively referred to as the "Parties"). On January 23, 1997, NXS Acquisition Corp., a Delaware corporation ("Newco"), and the Company entered into an Agreement and Plan of Merger (the "Merger Agreement") pursuant to which Newco is to be merged with and into the Company (the "Merger"). Pursuant to the Merger, stockholders of the Company may elect to receive $26.00 per share in cash or to retain the Company's Class A Common Stock, par value $.001 per share (the "Common Stock"), in each case, subject to the effects of proration. In connection with the Merger, certain key employees of the Company have agreed in principle to retain a specified number of shares of Common Stock (such specified number of shares, the "Targeted Retained Number"). This Agreement is one of several other agreements ("Other Management Stockholders' Agreements") which have been, or which in the future will be, entered into between the Company and other individuals who are or will be key employees of the Company or one of its subsidiaries (collectively, the "Other Management Stockholders"). The Company and the Management Stockholder have agreed in principle that (i) if, after giving effect to proration, the actual number of shares of Common Stock retained by such Management Stockholder (the "Actual Retained Number") is higher than the Targeted Retained Number, then such Management Stockholder will be permitted to sell a number of shares equal to such difference, and (ii) if, after giving effect to proration, the Actual Retained Number is less than the Targeted Retained Number, such Management Stockholder will purchase a number of shares equal to such difference. The shares of Common Stock retained by the Management Stockholder after giving effect to any sale contemplated by the preceding clause (i) shall be referred to herein as "Retained Stock." The shares of Common Stock purchased by the Management Stockholder contemplated by the preceding clause (ii), if any, shall be referred to herein as "Purchase Stock." Schedule I hereto sets forth, for the Management Stockholder named above, the Targeted Retained Number, the Actual Retained Number, the number of shares of Retained Stock, the number of shares of Purchase Stock and, if the number of shares of Purchase Stock is greater than zero, whether such shares are to be sold to the Management Stockholder by the Company (any such shares referred to herein as "Issued Stock") or purchased by the Management Stockholder on the New York Stock Exchange (any such shares referred to herein as "Market Stock"). After giving effect to the foregoing, the Management Stockholder shall own, in the aggregate, a total number of shares of Common Stock equal to at least the Targeted Retained Number. In addition, the Company will grant to the Management Stockholder at or as soon as practicable after the effective time of the Merger an option or options to purchase Common Stock ("Options") at an exercise price of $26.00 per share of Common Stock pursuant to the terms of the 1997 2 Option Plan for Key Employees of Amphenol Corporation and Subsidiaries (the "Option Plan") and the "Non-Qualified Stock Option Agreement" attached hereto as Exhibit A. NOW THEREFORE, to implement the foregoing and in consideration of the grant of Options and of the mutual agreements contained herein, the Parties agree as follows: 1. Common Stock; Issuance of Options. (a) If the Actual Retained Number set forth on Schedule I hereto is greater than the Targeted Retained Number, then the Management Stockholder shall, after the Stockholders Meeting (as defined in the Merger Agreement), be permitted to sell a number of shares equal to the difference. Subject to the terms and conditions hereinafter set forth, if the number of shares of Issued Stock set forth on Schedule I hereto is greater than zero, then the Management Stockholder hereby subscribes for and shall purchase, and the Company shall sell to the Management Stockholder, such number of shares of Issued Stock at a purchase price per share of $26.00 (for purposes hereof, such price shall be referred to as the "Base Price") on the date of the Effective Time of the Merger (as defined in the Merger Agreement) (the "Base Date") or, if not on the Base Date, on such later date after the Effective Time of the Merger as may be determined by the Company in consultation with the Management Stockholder (the "Deferred Sale Date"). The Company shall have no obligation to sell any Issued Stock to any person who (i) is a resident or citizen of a state or other jurisdiction in which the sale of the Issued Stock to him or her would constitute a violation of the securities or "blue sky" laws of such jurisdiction or (ii) is not an employee of the Company or any of its subsidiaries on the date hereof. If the number of shares of Market Stock set forth on Schedule I hereto is greater than zero, then the Management Stockholder shall promptly after the date of the Stockholders Meeting purchase such number of shares of Market Stock on The New York Stock Exchange. (b) The aggregate price for the Issued Stock shall be the amount set forth in Schedule I hereto (such amount hereinafter sometimes referred to as the "Aggregate Purchase Price"). The Aggregate Purchase Price shall be paid in the following manner: the Management Stockholder shall deliver to the Company at least three business days prior to the Base Date (or the Deferred Sale Date, if applicable) cash or a certified bank check or checks payable to the order of the Company in the amount of the Aggregate Purchase Price. On the Base Date (or the Deferred Sale Date, if applicable), in consideration of receipt of the Aggregate Purchase Price, the Company will deliver to the Management Stockholder a certificate, registered in the Management Stockholder's name, for the Issued Stock, which shall be subject to the terms and conditions hereinafter set forth. (c) Subject to the terms and conditions hereinafter set forth and upon and as of May 19, 1997 (the "Option Grant Date"), the Company shall issue to the Management Stockholder the Options and the Parties shall execute and deliver to each other copies of the Non-Qualified Stock Option Agreement concurrently with the issuance of the Options. 3 2. Management Stockholder's Representations, Warranties and Agreements. (a) The Management Stockholder agrees and acknowledges that he will not, directly or indirectly, offer, transfer, sell, assign, pledge, hypothecate or otherwise dispose of (any such act being referred to herein as a "transfer") any shares of the Purchase Stock, Retained Stock and, at the time of exercise, the Common Stock issuable upon exercise of the Options (the "Option Stock" and collectively with Retained Stock and Purchase Stock, the "Stock") unless such transfer complies with Section 3 of this Agreement. If the Management Stockholder is an "affiliate" (as defined under Rule 405 of the rules and regulations promulgated under the Act and as interpreted by the Board of Directors of the Company) of the Company (an "Affiliate"), the Management Stockholder also agrees and acknowledges that he will not transfer any shares of the Stock unless (i) the transfer is pursuant to an effective registration statement under the Securities Act of 1933, as amended, and the rules and regulations in effect thereunder (the "Act"), and in compliance with applicable provisions of state securities laws or (ii) (A) counsel for the Management Stockholder (which counsel shall be reasonably acceptable to the Company) shall have furnished the Company with an opinion, satisfactory in form and substance to the Company, that no such registration is required because of the availability of an exemption from registration under the Act and (B) if the Management Stockholder is a citizen or resident of any country other than the United States, or the Management Stockholder desires to effect any transfer in any such country, counsel for the Management Stockholder (which counsel shall be reasonably satisfactory to the Company) shall have furnished the Company with an opinion or other advice reasonably satisfactory in form and substance to the Company to the effect that such transfer will comply with the securities laws of such jurisdiction. Notwithstanding the foregoing, the Company acknowledges and agrees that any of the following transfers are deemed to be in compliance with the Act and this Agreement and no opinion of counsel is required in connection therewith: (x) a transfer made pursuant to Section 4, 5 or 6 hereof, (y) a transfer upon the death of the Management Stockholder to his executors, administrators, testamentary trustees, legatees or beneficiaries (the "Management Stockholder's Estate") or a transfer to the executors, administrators, testamentary trustees, legatees or beneficiaries of a person who has become a holder of Stock in accordance with the terms of this Agreement, provided that it is expressly understood that any such transferee shall be bound by the provisions of this Agreement and (z) a transfer made after the Base Date in compliance with the federal securities laws to a trust or custodianship the beneficiaries of which may include only the Management Stockholder, his spouse or his lineal descendants (a "Management Stockholder's Trust") or a transfer made after the third anniversary of the Base Date to such a trust by a person who has become a holder of Stock in accordance with the terms of this Agreement, provided that such transfer is made expressly subject to this Agreement and that the transferee agrees in writing to be bound by the terms and conditions hereof. (b) The certificate (or certificates) representing the Stock shall bear the following legend: "THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR 4 OTHERWISE DISPOSED OF UNLESS SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION COMPLIES WITH THE PROVISIONS OF THE MANAGEMENT STOCKHOLDER'S AGREEMENT DATED AS OF MAY 19, 1997 BETWEEN AMPHENOL CORPORATION ("THE COMPANY") AND THE MANAGEMENT STOCKHOLDER NAMED ON THE FACE HEREOF (A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY)." (c) The Management Stockholder acknowledges that he has been advised that (i) the Issued Stock, if any, has been registered on Form S-8 under the Act, (ii) a restrictive legend in the form heretofore set forth shall be placed on the certificates representing the Stock and (iii) a notation shall be made in the appropriate records of the Company indicating that the Stock is subject to restrictions on transfer and appropriate stop transfer restrictions will be issued to the Company's transfer agent with respect to the Stock. If the Management Stockholder is an Affiliate, the Management Stockholder also acknowledges that (1) the Stock must be held indefinitely and the Management Stockholder must continue to bear the economic risk of the investment in the Stock unless it is subsequently registered under the Act or an exemption from such registration is available, (2) when and if shares of the Stock may be disposed of without registration in reliance on Rule 144 of the rules and regulations promulgated under the Act, such disposition can be made only in limited amounts in accordance with the terms and conditions of such Rule and (3) if the Rule 144 exemption is not available, public sale without registration will require compliance with some other exemption under the Act. (d) If any shares of the Stock are to be disposed of in accordance with Rule 144 under the Act or otherwise, the Management Stockholder shall promptly notify the Company of such intended disposition and shall deliver to the Company at or prior to the time of such disposition such documentation as the Company may reasonably request in connection with such sale and, in the case of a disposition pursuant to Rule 144, shall deliver to the Company an executed copy of any notice on Form 144 required to be filed with the Securities and Exchange Commission (the "SEC"). (e) The Management Stockholder agrees that, if any shares of the capital stock of the Company are offered to the public pursuant to an effective registration statement under the Act (other than registration of securities issued under an employee plan), the Management Stockholder will not effect any public sale or distribution of any shares of the Stock not covered by such registration statement from the time of the receipt of a notice from the Company that the Company has filed or imminently intends to file such registration statement to, or within 180 days after, the effective date of such registration statement, unless otherwise agreed to in writing by the Company. (f) The Management Stockholder represents and warrants that (i) with respect to Issued Stock, if any, he has received and reviewed the document(s) comprising the Prospectus (the "Prospectus") relating to Issued Stock, if any, and the documents referred to therein, certain of which documents set forth the rights, preferences and restrictions relating to 5 the Stock and (ii) he has been given the opportunity to obtain any additional information or documents and to ask questions and receive answers about such documents, the Company and the business and prospects of the Company which he deems necessary to evaluate the merits and risks related to his investment in the Issued Stock, if any, and to verify the information contained in the Prospectus and the information received as indicated in this Section 2(f)(ii), and he has relied solely on such information. (g) The Management Stockholder further represents and warrants that (i) his financial condition is such that he can afford to bear the economic risk of holding the Issued Stock, if any, for an indefinite period of time and has adequate means for providing for his current needs and personal contingencies, (ii) he can afford to suffer a complete loss of his or her investment in the Issued Stock, if any, (iii) he understands and has taken cognizance of all risk factors related to the purchase of the Issued Stock, if any, including those set forth in the Prospectus referred to above, and (iv) his knowledge and experience in financial and business matters are such that he is capable of evaluating the merits and risks of his purchase of the Issued Stock, if any, as contemplated by this Agreement. 3. Restriction on Transfer. Except for transfers permitted by clauses (x), (y) and (z) of Section 2(a) or a sale of shares of Stock pursuant to an effective registration statement under the Act filed by the Company or pursuant to the Sale Participation Agreement (as defined below), the Management Stockholder agrees that he will not transfer any shares of the Stock at any time prior to the fifth anniversary of the Base Date. No transfer of any such shares in violation hereof shall be made or recorded on the books of the Company and any such transfer shall be void and of no effect. 4. Right of First Refusal. If on the fifth anniversary of the Base Date the Common Stock is not admitted to trading on any national securities exchange or the NASDAQ Stock Market, and, at any time after the fifth anniversary of the Base Date and prior to a Public Offering (as hereinafter defined), the Management Stockholder receives a bona fide offer to purchase any or all of his shares of Stock (the "Offer") from a third party (the "Offeror") which the Management Stockholder wishes to accept, the Management Stockholder shall cause the Offer to be reduced to writing and shall notify the Company in writing of his wish to accept the Offer. The Management Stockholder's notice shall contain an irrevocable offer to sell such shares of Stock to the Company (in the manner set forth below) at a purchase price equal to the price contained in, and on the same terms and conditions of, the Offer, and shall be accompanied by a true copy of the Offer (which shall identify the Offeror). At any time within 30 days after the date of the receipt by the Company of the Management Stockholder's notice, the Company shall have the right and option to purchase, or to arrange for a third party to purchase, all of the shares of Stock covered by the Offer either (i) at the same price and on the same terms and conditions as the Offer or (ii) if the Offer includes any consideration other than cash, then at the sole option of the Company, at the equivalent all cash price, determined in good faith by the Company's Board of Directors, by delivering a certified bank 6 check or checks in the appropriate amount (and any such non-cash consideration to be paid) to the Management Stockholder at the principal office of the Company against delivery of certificates or other instruments representing the shares of Stock so purchased, appropriately endorsed by the Management Stockholder. If at the end of such 30 day period, the Company has not tendered the purchase price for such shares in the manner set forth above, the Management Stockholder may during the succeeding 30 day period sell not less than all of the shares of Stock covered by the Offer to the Offeror at a price and on terms no less favorable to the Management Stockholder than those contained in the Offer. Promptly after such sale, the Management Stockholder shall notify the Company of the consummation thereof and shall furnish such evidence of the completion and time of completion of such sale and of the terms thereof as may reasonably be requested by the Company. If, at the end of 30 days following the expiration of the 30 day period for the Company to purchase the Stock, the Management Stockholder has not completed the sale of such shares of the Stock as aforesaid, all the restrictions on sale, transfer or assignment contained in this Agreement shall again be in effect with respect to such shares of the Stock. 5. Management Stockholder's Resale of Stock and Options to the Company Upon The Management Stockholder's Death or Disability or in Case of Certain Terminations of Employment. (a) Except as otherwise provided herein, if, prior to the fifth anniversary of the Base Date, (i) the Management Stockholder is still in the employ of the Company or any subsidiary of the Company, or has retired from the Company and its subsidiaries at age 65 or over (or such other age as may be approved by the Board of Directors of the Company) after having been employed by the Company or any subsidiary for at least three years after the Base Date, and (ii) the Management Stockholder either dies or becomes permanently disabled then the Management Stockholder, the Management Stockholder's Estate or a Management Stockholder's Trust, as the case may be, shall have the right, for six months following the date of death or permanent disability, (A) to sell to the Company, and the Company shall be required to purchase, on one occasion, all or any portion of the shares of Stock then held by the Management Stockholder, the Management Stockholder's Estate and/or the Management Stockholder's Trust, as the case may be, at the Section 5(a) Repurchase Price, as determined in accordance with Section 7, and (B) to require the Company to pay to the Management Stockholder or the Management Stockholder's Estate or the Management Stockholder's Trust, as the case may be, an additional amount equal to the Option Excess Price determined on the basis of a Section 5(a) Repurchase Price as provided in Section 8 with respect to the termination of outstanding Options held by the Management Stockholder. (b) Except as otherwise provided herein, if the Management Stockholder's employment with the Company is terminated by the Company without Cause (as hereinafter defined) or by the Management Stockholder for Good Reason (as hereinafter defined) and, at such time, the Common Stock is not admitted to trading on any national securities exchange or the NASDAQ Stock Market, then the Management Stockholder (or in the event of the Management Stockholder's death, the Management Stockholder's Estate) or a Management Stockholder's Trust, as the case may be, shall have the right, for 30 days following the date of termination, to sell to the Company, and the Company shall be required to purchase, on 7 one occasion, all or any portion of the Retained Stock and any Issued Stock (other than any shares acquired upon the exercise of Options) or Market Stock (collectively, the "Initial Stock") at the Section 5(b) Repurchase Price, as determined in accordance with Section 7, provided, that such right shall apply only to the actual shares of Common Stock constituting the Initial Stock pursuant to this Agreement, and shall not include any other shares of Common Stock, however acquired. If the Management Stockholder or the Management Stockholder's Trust, as the case may be, exercises the put rights granted under this Section 5(b), then (i) the Options (whether or not then exercisable) held by the Management Stockholder or the Management Stockholder's Trust, as the case may be, will terminate immediately without payment therefor, (ii) any Option Stock acquired prior to the date of the termination of employment may be retained and (iii) the exercise of any Options after the date of the termination of employment and prior to the exercise of the put rights pursuant to this Section 5(b) shall be deemed to be rescinded, and any Option Stock so acquired shall be delivered to the Company in return for the applicable exercise price paid therefor. (c) The Management Stockholder, the Management Stockholder's Estate and/or the Management Stockholder's Trust, as the case may be, shall send written notice to the Company of its intention to sell shares of Stock in exchange for the payment referred in Sections 5(a) and 5(b) above and to terminate such Options (either (i) in the case of Section 5(a), in exchange for the payment referred to in Section 5(a) or (ii) in the case of Section 5(b), without payment therefor) (the "Redemption Notice"). The completion of the purchase shall take place at the principal office of the Company on the tenth business day after the giving of the Redemption Notice. The applicable Repurchase Price and any payment with respect to the Options as described above shall be paid by delivery to the Management Stockholder, the Management Stockholder's Estate or the Management Stockholder's Trust, as the case may be, of a certified bank check or checks in the appropriate amount payable to the order of the Management Stockholder, the Management Stockholder's Estate or the Management Stockholder's Trust, as the case may be, against delivery of certificates or other instruments representing the Stock so purchased and appropriate documents cancelling the Options so terminated appropriately endorsed or executed by the Management Stockholder, the Management Stockholder's Estate or the Management Stockholder's Trust, or his, her or its duly authorized representative. For purposes of this Agreement, the Management Stockholder shall be deemed to have a "permanent disability" if the Management Stockholder is unable to engage in the activities required by the Management Stockholder's job by reason of any medically determined physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. (d) Notwithstanding anything in Section 5(a) or Section 5(b) to the contrary and subject to Section 11, if there exists and is continuing a default or an event of default on the part of the Company or any subsidiary of the Company under any loan, guarantee or other agreement under which the Company or any subsidiary of the Company has borrowed money or if the repurchase referred to in Section 5(a) or Section 5(b) would result in a default or an event of default on the part of the Company or any subsidiary of the Company under any such agreement or if a repurchase would not be permitted under the Delaware General Corporation Law (the "DGCL") or would otherwise violate the DGCL (or if the Company 8 reincorporates in another state, the business corporation law of such state) (each such occurrence being an "Event"), the Company shall not be obligated to repurchase any of the Stock or the Options from the Management Stockholder, the Management Stockholder's Estate or a Management Stockholder's Trust, as the case may be, until the first business day which is 10 calendar days after all of the foregoing Events have ceased to exist (the "Repurchase Eligibility Date"); provided, however, that (i) the number of shares of Stock subject to repurchase under this Section 5(d) shall be that number of shares of Stock, and (ii) in the case of a repurchase pursuant to Section 5(a), the number of Exercisable Option Shares (as defined in Section 8) for purposes of calculating the Option Excess Price payable under this Section 5(d) shall be the number of Exercisable Option Shares, held by the Management Stockholder, the Management Stockholder's Estate or a Management Stockholder's Trust, as the case may be, at the time of delivery of a Redemption Notice in accordance with Section 5(c) hereof; provided, further, that the Repurchase Calculation Date shall be determined in accordance with Section 7 as of the Repurchase Eligibility Date (unless, in a repurchase pursuant to Section 5(a), the Section 5(a) Repurchase Price would be greater if the Repurchase Calculation Date had been determined as if no Event had occurred in which case, solely for purposes of this proviso, the Repurchase Calculation Date shall be determined as if no Event had occurred). All Options exercisable as of the date of a Redemption Notice, in the case of a repurchase pursuant to Section 5(a), shall continue to be exercisable until the repurchase pursuant to such Redemption Notice, provided that to the extent any Options are exercised after the date of such Redemption Notice, the number of Exercisable Option Shares for purposes of calculating the Option Excess Price shall be reduced accordingly. (e) Notwithstanding any other provision of this Section 5 to the contrary and subject to Section 11, the Management Stockholder, the Management Stockholder's Estate or a Management Stockholder's Trust, as the case may be, shall have the right to withdraw any Redemption Notice which has been pending for 60 or more days and which has remained unsatisfied because of the provisions of Section 5(d). 6. The Company's Option to Repurchase Stock and Options of Management Stockholder. (a) If, on or prior to the fifth anniversary of the Base Date, (i) the Management Stockholder's active employment with the Company (and/or, if applicable, its subsidiaries) is terminated by the Company with Cause or by the Management Stockholder without Good Reason, (ii) the beneficiaries of a Management Stockholder's Trust shall include any person or entity other than the Management Stockholder, his spouse or his lineal descendants, or (iii) the Management Stockholder shall effect a transfer of any of the Stock other than as permitted in this Agreement (each, a "Section 6(a) Call Event"), then the Company shall have the right to purchase all, but not less than all, of the shares of the Stock then held by the Management Stockholder or a Management Stockholder's Trust at the Section 6(a) Repurchase Price determined in accordance with Section 7 hereof. If any Section 6(a) Call Event has occurred, then, whether or not the Company exercises the call rights granted under this Section 6(a), the Options (whether or not then exercisable) held by the Management Stockholder or the Management Stockholder's Trust, as the case may be, will terminate immediately without payment therefor. 9 (b) If, on or prior to the fifth anniversary of the Base Date, the Management Stockholder's employment is terminated as a result of the death or permanent disability of the Management Stockholder or if the Management Stockholder dies or becomes permanently disabled after the retirement of the Management Stockholder from the Company or any of its subsidiaries at age 65 or over (or such other age as may be approved by the Board of Directors of the Company) after having been employed by the Company or any subsidiary for at least three years after the Base Date, (each a "Section 6(b) Call Event"), then the Company shall have the right to purchase all, but not less than all, of the shares of Stock then held by the Management Stockholder, the Management Stockholder's Estate or a Management Stockholder's Trust at the Section 5(a) Repurchase Price. (c) If, on or prior to the fifth anniversary of the Base Date, the Management Stockholder's employment is terminated as a result of a termination by the Management Stockholder with Good Reason or upon the retirement of the Management Stockholder from the Company or any of its subsidiaries at age 65 or over (or such other age as may be approved by the Board of Directors of the Company) after having been employed by the Company or any subsidiary for at least three years after the Base Date, or by the Company without Cause (each a "Section 6(c) Call Event" and together with Section 6(a) Call Events and Section 6(b) Call Events, "Call Events"), then the Company shall have the right to purchase all, but not less than all, of the shares of Stock then held by the Management Stockholder or a Management Stockholder's Trust at the Section 6(c) Repurchase Price. (d) The Company shall have a period of 75 days from the date of a Call Event in which to give notice in writing to the Management Stockholder of the exercise of such election ("Call Notice"). In the event that the Company exercises its right to repurchase shares of Stock pursuant to Section 6(b) or Section 6(c), the Company shall also pay the Management Stockholder an amount equal to the Option Excess Price determined on the basis of the Section 5(a) Repurchase Price or Section 6(c) Repurchase Price, respectively, as provided in Section 8, with respect to the termination of outstanding Options held by the Management Stockholder. (e) The completion of the purchases pursuant to the foregoing shall take place at the principal office of the Company on the tenth business day after the giving of notice of the exercise of the option to purchase. The applicable Repurchase Price and any payment with respect to the Options as described in Sections 6(d) above shall be paid by delivery to the Management Stockholder, the Management Stockholder's Estate or a Management Stockholder's Trust, as the case may be, of a certified bank check or checks in the appropriate amount payable to the order of the Management Stockholder, the Management Stockholder's Estate or a Management Stockholder's Trust, as the case may be, against delivery of certificates or other instruments representing the Stock so purchased and appropriate documents cancelling the Options so terminated, appropriately endorsed or executed by the Management Stockholder, the Management Stockholder's Estate or a Management Stockholders Trust or his, her or its authorized representative. (f) Notwithstanding any other provision of this Section 6 to the contrary and subject to Section 11, if there exists and is continuing any Event, the Company shall 10 delay the repurchase of any of the Stock or the Options (pursuant to a Call Notice timely given in accordance with Section 6(d) hereof) from the Management Stockholder, the Management Stockholder's Estate or a Management Stockholder's Trust, as the case may be, until the Repurchase Eligibility Date; provided, however, that (i) the number of shares of Stock subject to repurchase under this Section 6(f) shall be that number of shares of Stock and (ii) in the case of a repurchase pursuant to Section 6(b) or Section 6(c), the number of Exercisable Option Shares for purposes of calculating the Option Excess Price payable under this Section 6(f) shall be the number of Exercisable Option Shares held by the Management Stockholder, the Management Stockholder's Estate or a Management Stockholder's Trust, as the case may be, at the time of delivery of a Call Notice in accordance with Section 6(d) hereof; and provided, further, that the Repurchase Calculation Date shall be determined in accordance with Section 7 based on the Repurchase Eligibility Date (unless (x) in the case of a Section 6(b) Call Event or a Section 6(c) Call Event, the applicable Repurchase Price would be greater if the Repurchase Calculation Date had been determined as if no Event had occurred, in which case the Repurchase Calculation Date shall be determined as if no Event had occurred, and (y) in the case of a Section 6(a) Call Event, the applicable Repurchase Price would be less if the Repurchase Calculation Date had been determined as if no Event had occurred, in which case the Repurchase Calculation Date shall be determined as if no Event had occurred). All Options exercisable as of the date of a Call Notice, in the case of a repurchase pursuant to Section 6(b) or Section 6(c), shall continue to be exercisable until the repurchase pursuant to such Call Notice, provided that to the extent that any Options are exercised after the date of such Call Notice, the number of Exercisable Option Shares for purposes of calculating the Option Excess Price shall be reduced accordingly. 7. Determination of Repurchase Price. (a) The Section 5(a) Repurchase Price, Section 5(b) Repurchase Price, Section 6(a) Repurchase Price and the Section 6(c) Repurchase Price are hereinafter collectively referred to as the "Repurchase Price." The Repurchase Price shall be calculated on the basis of the unaudited financial statements of the Company or the Market Price Per Share (as defined in Section 7(j)) as of the last day of the month preceding the later of (i) the month in which the event giving rise to the repurchase occurs and (ii) the month in which the Repurchase Eligibility Date occurs (hereinafter called the "Repurchase Calculation Date"). The event giving rise to the repurchase shall be the death, permanent disability, retirement or termination of employment, as the case may be, of the Management Stockholder, not the giving of any notice required pursuant to Section 5 or 6. (b) The Section 5(a) Repurchase Price shall be a per share Repurchase Price equal to the Base Price, provided that if the Book Value Per Share (as defined in Section 7(h)) (or, after a Public Offering, the Market Price Per Share) as of the Repurchase Calculation Date is greater than the Base Price, then the Section 5(a) Repurchase Price shall be equal to the Base Price plus the amount by which the Book Value Per Share (or, after a Public Offering, the Market Price Per Share) as of the Repurchase Calculation Date exceeds the Base Price. 11 (c) The Section 5(b) Repurchase Price shall be a per share Repurchase Price equal to the Base Price, provided that if the Book Value Per Share as of the Repurchase Calculation Date is less than the Base Price, then the Section 5(b) Repurchase Price shall be equal to the Base Price less the amount by which the Base Price exceeds the Book Value Per Share as of the Repurchase Calculation Date (but shall not be less than zero). (d) The Section 6(a) Repurchase Price shall be a per share Repurchase Price equal to the least of (i) after a Public Offering, the Market Price Per Share, (ii) if the Book Value Per Share as of the Repurchase Calculation Date is less than the Base Price, the Base Price less the amount by which the Base Price exceeds Book Value Per Share as of the Repurchase Calculation Date (but shall not be less than zero), and (iii) if the Book Value Per Share as of the Repurchase Calculation Date exceeds the Base Price, the Base Price plus (x) the Percentage (as defined below) multiplied by (y) the amount by which the Book Value Per Share as of the Repurchase Calculation Date exceeds the Base Price. (e) The Section 6(c) Repurchase Price shall be a per share Repurchase Price equal to the Base Price, provided (x) if the Book Value Per Share (or, after a Public Offering, the Market Price Per Share) as of the Repurchase Calculation Date is less than the Base Price, then the Section 6(c) Repurchase Price shall equal the Base Price less the amount by which the Base Price exceeds Book Value Per Share (or, after a Public Offering, the Market Price Per Share) as of the Repurchase Calculation Date, and (y) if the Book Value Per Share (or, after a Public Offering, the Market Price Per Share) as of the Repurchase Calculation Date is greater than the Base Price, then the Section 6(c) Repurchase Price shall equal the Base Price plus the amount by which the Book Value Per Share (or, after a Public Offering, the Market Price Per Share) as of the Repurchase Calculation Date exceeds the Base Price, as the case may be. (f) For purposes of this Agreement the following definitions shall apply: "Cause" shall mean (i) the Management Stockholder's willful and continued failure to perform Management Stockholder's duties with respect to the Company or its subsidiaries which continues beyond ten days after a written demand for substantial performance is delivered to Management Stockholder by the Company or (ii) misconduct by Management Stockholder involving (x) dishonesty or breach of trust in connection with Management Stockholder's employment or (y) conduct which would be a reasonable basis for an indictment of Management Stockholder for a felony or for a misdemeanor involving moral turpitude or (z) which results in a demonstrable injury to the Company; and "Good Reason" shall mean (i) a reduction in Management Stockholder's base salary (other than a broad based salary reduction program affecting many members of management), (ii) a substantial reduction in Management Stockholder's duties and responsibilities other than as approved by the Chief Executive Officer of the Company as of the date of this Agreement, (iii) the elimination or reduction of the Management Stockholder's eligibility to participate in the Company's benefit programs that is inconsistent with the eligibility of similarly situated employees of the Company to participate therein, or (iv) a transfer of the Management Stockholder's primary workplace by more than fifty (50) miles from the workplace as of the date hereof. 12 (g) For purposes of this Agreement, the "Percentage" shall be determined as follows: Repurchase Calculation Date Percentage - --------------------------- ---------- Base Date through and including the first anniversary of the 0% Base Date After the first anniversary of the Base Date through and 20% including the second anniversary of the Base Date After the second anniversary of the Base Date through and 40% including the third anniversary of the Base Date After the third anniversary of the Base Date through and 60% including the fourth anniversary of the Base Date After the fourth anniversary of the Base Date through and 80% including the fifth anniversary of the Base Date After the fifth anniversary of the Base Date 100% (h) As used herein, "Book Value Per Share" shall be the quotient of (a) (i) $455,440,830 plus (ii) the aggregate net income of the Company from and after the date of the Effective Time of the Merger (as decreased by any net losses from and after the date of the Effective Time of the Merger) excluding any one time costs and expenses charged to income associated with the Merger and any related transactions plus (iii) the aggregate dollar amount contributed to (or credited to common stockholders' equity of) the Company after the date of the Effective Time of the Merger as equity of the Company (including consideration to be received upon exercise of the Options and other stock equivalents) plus (iv) to the extent reflected as deductions to Book Value Per Share in clause (ii) above, or minus, to the extent reflected as additions to Book Value Per Share in clause (ii) above, unusual or other items recognized by the Company (including, without limitation, one time or accelerated write-offs of good will), in each case, if and to the extent determined in the sole discretion of the Board of Directors of the Company, minus, (v) the aggregate dollar amount of any dividends paid by the Company after the date of the Effective Time of the Merger, divided by (b) the sum of the number of shares of Common Stock then outstanding and the number of shares of Common Stock issuable upon the exercise of all outstanding stock options and other rights to acquire Common Stock and the conversion of all securities convertible into shares of Common Stock. The items referred to in the calculations set forth in clauses (a)(ii), (a)(iii), (a)(iv) and (a)(v) of the immediately preceding sentence shall be determined in accordance with generally accepted accounting principles applied on a basis consistent with any prior periods as reflected in the consolidated financial statements of the Company. (i) As used herein the term "Public Offering" shall mean the sale of shares of Common Stock to the public subsequent to the date hereof pursuant to a registration statement under the Act which has been declared effective by the SEC (other than a registration statement on Form S-8 or any other similar form) which results in an active 13 trading market in 35% or more of the Common Stock. A "Qualified Public Offering" shall mean a Public Offering pursuant to an effective registration statement relating to the sale of shares of the Common Stock held by KKR 1996 Fund L.P., a Delaware limited partnership (the "Partnership") or NXS Associates, L.P., a Delaware limited partnership, or their respective affiliates; provided, however, that a "Qualified Public Offering" shall be deemed to have occurred if there has been any Public Offering and there exists an active trading market in 40% or more of the Common Stock. (j) As used herein, the term "Market Price Per Share" shall mean the price per share equal to the average of the last sale price of the Common Stock on the Repurchase Calculation Date on each exchange on which the Common Stock may at the time be listed or, if there shall have been no sales on any of such exchanges on the Repurchase Calculation Date, the average of the closing bid and asked prices on each such exchange at the end of the Repurchase Calculation Date or if there is no such bid and asked price on the Repurchase Calculation Date on the next preceding date when such bid and asked price occurred or, if the Common Stock shall not be so listed, the average of the closing sales prices as reported by NASDAQ at the end of the Repurchase Calculation Date in the over-the-counter market. If the Common Stock is not so listed or reported by NASDAQ, then the Market Price Per Share shall be the Book Value Per Share. (k) In determining the Repurchase Price, appropriate adjustments shall be made for any stock dividends, splits, combinations, recapitalizations or any other adjustment in the number of outstanding shares of Common Stock in order to maintain, as nearly as practicable, the intended operation of the provisions of this Section 7. 8. Stock Issued to Management Stockholder Upon Exercise of Stock Options; Termination of Options. (a) The Company may from time to time grant to the Management Stockholder, in addition to the Options, options under the Option Plan to purchase shares of Common Stock at the Base Price or at a different option exercise price. The term "Issued Stock" as used in this Agreement shall include all shares of Common Stock of the Company purchased by the Management Stockholder pursuant to this Agreement and issued to the Management Stockholder by the Company upon exercise of the Options and of any other stock options held by the Management Stockholder. (b) In the case of an exercise of the put or call rights described above in Sections 5(b) or 6(a), respectively, all outstanding Options of the Management Stockholder (whether or not then exercisable) will be automatically terminated without payment therefor. In the case of an exercise of the put rights described above in Section 5(a) or of the call rights described above in Sections 6(b) or 6(c), all outstanding Options granted to the Management Stockholder under the Option Plan or otherwise, whether or not then exercisable, will be automatically terminated upon the payment by the Company to the Management Stockholder, pursuant to the provisions of Sections 5(a) or 6(d) of this Agreement, as the case may be, of an amount equal to the Option Excess Price. If the Option Excess Price is zero or a negative number, all outstanding stock options granted to the Management Stockholder 14 under the Option Plan or otherwise, whether or not then exercisable, shall be automatically terminated upon the repurchase of Stock as provided in Sections 5(a), 6(b) or 6(c). With respect to each Option, the Option Excess Price is the excess, if any, of the Section 5(a) Repurchase Price or the Section 6(c) Repurchase Price, depending on which Repurchase Price is being used to repurchase the remainder of the Stock, over the Option Exercise Price (as defined in the Non-Qualified Option Agreement), multiplied by the number of Exercisable Option Shares thereunder. For purposes hereof, "Exercisable Option Shares" shall mean the shares of Common Stock which, at the time of determination of the Option Excess Price could be purchased by the Management Stockholder upon exercise of his or her outstanding options. The Company will use its reasonable best efforts to cause a Registration Statement on Form S-8 covering shares of Issued Stock contemplated hereby to be filed within six months of the date hereof. 9. The Company's Representations and Warranties. (a) The Company represents and warrants to the Management Stockholder that (i) this Agreement has been duly authorized, executed and delivered by the Company and (ii) the Issued Stock, when issued and delivered in accordance with the terms hereof, will be duly and validly issued, fully paid and nonassessable. (b) The Company will file the reports required to be filed by it under the Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder, to the extent required from time to time to enable the Management Stockholder to sell shares of Stock without registration under the Act within the limitations of the exemptions provided by (A) Rule 144 under the Act, as such Rule may be amended from time to time, or (B) any similar rule or regulation hereafter adopted by the SEC. Notwithstanding anything contained in this Section 9(b), the Company may de-register under Section 12 of the Exchange Act if it is then permitted to do so pursuant to the Exchange Act and the rules and regulations thereunder and, in such circumstances, shall not be required hereby to file any reports which may be necessary in order for Rule 144 or any similar rule or regulation under the Act to be available. Nothing in this Section 9(b) shall be deemed to limit in any manner the restrictions on sales of Stock contained in this Agreement. 10. "Piggyback" Registration Rights. (a) Effective upon the date of this Agreement, until the later of (i) the first occurrence of a Qualified Public Offering (as defined in Section 7(i) above) or (ii) the fifth anniversary of the Base Date, the Management Stockholder hereby agrees to be bound by all of the terms, conditions and obligations of the Registration Rights Agreement dated as of May 19, among the Company (as successor by Merger to Newco), KKR 1996 Fund L.P., NXS Associates, L.P. KKR Partners II, L.P. and NXS I, L.L.C. (the "Registration Rights Agreement") and, in the case of a Qualified Public Offering and subject to the limitations set forth in this Section 10, shall have all of the rights and privileges of the Registration Rights Agreement, in each case as if the Management Stockholder were an original party (other than the Company) thereto; provided, however, that the Management Stockholder shall not have any rights to request registration under Section 3 of the Registration Rights Agreement; and 15 provided further, that the Management Stockholder shall not be bound by any amendments to the Registration Rights Agreement unless the Management Stockholder consents thereto. Notwithstanding anything to the contrary contained in the Registration Rights Agreement, the Management Stockholder's rights and obligations under the Registration Rights Agreement shall be subject to the limitations and additional obligations set forth in this Section 10. All Stock purchased or held by the Management Stockholder, the Management Stockholder's Estate or the Management Stockholder's Trust pursuant to this Agreement shall be deemed to be Registrable Securities as defined in the Registration Rights Agreement. (b) The Company will promptly notify the Management Stockholder in writing (a "Notice") of any proposed registration (a "Proposed Registration") in connection with a Qualified Public Offering. If within 15 days of the receipt by the Management Stockholder of such Notice, the Company receives from the Management Stockholder, the Management Stockholder's Estate or the Management Stockholder's Trust a written request (a "Request") to register shares of Stock held by the Management Stockholder, the Management Stockholder's Estate or the Management Stockholder's Trust (which Request will be irrevocable unless otherwise mutually agreed to in writing by the Management Stockholder and the Company), shares of Stock will be so registered as provided in this Section 10; provided, however, that for each such registration statement only one Request, which shall be executed by the Management Stockholder, the Management Stockholder's Estate or the Management Stockholder's Trust, as the case may be, may be submitted for all Registrable Securities held by the Management Stockholder, the Management Stockholder's Estate and the Management Stockholder's Trust. (c) The maximum number of shares of Stock which will be registered pursuant to a Request will be the lowest of (i) the number of shares of Stock then held by the Management Stockholder (which for purposes of this subparagraph (c) shall include shares held by the Management Stockholder's Estate or a Management Stockholder's Trust), including all shares of Stock which the Management Stockholder is then entitled to acquire under an unexercised Option to the extent then exercisable or (ii) the maximum number of shares of Stock which the Company can register in the Proposed Registration without adverse effect on the offering in the view of the managing underwriters (reduced pro rata with all Other Management Stockholders) as more fully described in subsection (d) of this Section 10 or (iii) the maximum number of shares which the Management Stockholder (pro rata based upon the aggregate number of shares of Common Stock the Management Stockholder and all Other Management Stockholders have requested be registered) and all Other Management Stockholders are permitted to register under the Registration Rights Agreement. (d) If a Proposed Registration involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opinion, the number of shares of Stock requested to be included in the Proposed Registration exceeds the number which can be sold in such offering, so as to be likely to have an adverse effect on the price, timing or distribution of the shares of Stock offered in such Qualified Public Offering as contemplated by the Company, then the Company will include in the Proposed Registration (i) first, 100% of the shares of Stock the Company proposes to sell and (ii) second, to the extent of the number of shares of Stock requested to be included in such registration which, 16 in the opinion of such managing underwriter, can be sold without having the adverse effect referred to above, the number of shares of Stock which the "Holders" (as defined in the Registration Rights Agreement), including, without limitation, the Management Stockholder and Other Management Stockholders have requested to be included in the Proposed Registration, such amount to be allocated pro rata among all requesting Holders on the basis of the relative number of shares of Stock then held by each such Holder (provided that any shares thereby allocated to any such Holder that exceed such Holder's request will be reallocated among the remaining requesting Holders in like manner). (e) Upon delivering a Request the Management Stockholder will, if requested by the Company, execute and deliver a custody agreement and power of attorney in form and substance satisfactory to the Company with respect to the shares of Stock to be registered pursuant to this Section 10 (a "Custody Agreement and Power of Attorney"). The Custody Agreement and Power of Attorney will provide, among other things, that the Management Stockholder will deliver to and deposit in custody with the custodian and attorney-in-fact named therein a certificate or certificates representing such shares of Stock (duly endorsed in blank by the registered owner or owners thereof or accompanied by duly executed stock powers in blank) and irrevocably appoint said custodian and attorney-in-fact as the Management Stockholder's agent and attorney-in-fact with full power and authority to act under the Custody Agreement and Power of Attorney on the Management Stockholder's behalf with respect to the matters specified therein. (f) The Management Stockholder agrees that he or she will execute such other agreements as the Company may reasonably request to further evidence the provisions of this Section 10. 11. Pro Rata Repurchases. Notwithstanding anything to the contrary contained in Sections 5, 6 or 7, if at any time consummation of all purchases and payments to be made by the Company pursuant to this Agreement and the Other Management Stockholders' Agreements would result in an Event, then the Company shall make purchases from, and payments to, the Management Stockholder and Other Management Stockholders pro rata (on the basis of the proportion of the number of shares of Stock and the number of Options each such Management Stockholder and all Other Management Stockholders have elected or are required to sell to the Company) for the maximum number of shares of Stock and shall pay the Option Excess Price for the maximum number of Options permitted without resulting in an Event (the "Maximum Repurchase Amount"). The provisions of Section 5(d) and 6(f) shall apply in their entirety to payments and repurchases with respect to Options and shares of Stock which may not be made due to the limits imposed by the Maximum Repurchase Amount under this Section 11. Until all of such Stock and Options are purchased and paid for by the Company, the Management Stockholder and the Other Management Stockholders whose Stock and Options are not purchased in accordance with this Section 11 shall have priority, on a pro rata basis, over other purchases of Common Stock and Options by the Company pursuant to this Agreement and Other Management Stockholders' Agreements. 17 12. Rights to Negotiate Repurchase Price. Nothing in this Agreement shall be deemed to restrict or prohibit the Company from purchasing shares of Stock or Options from the Management Stockholder, at any time, upon such terms and conditions, and for such price, as may be mutually agreed upon between the Parties, whether or not at the time of such purchase circumstances exist which specifically grant the Company the right to purchase, or the Management Stockholder the right to sell, shares of Stock or the Company has the right to pay, or the Management Stockholder has the right to receive, the Option Excess Price under the terms of this Agreement. 13. Covenant Regarding 83(b) Election. Except as the Company may otherwise agree in writing, the Management Stockholder hereby covenants and agrees that he will make an election provided pursuant to Treasury Regulation 1.83-2 with respect to the Stock, including without limitation, the Stock to be acquired pursuant to Section 1 and the Stock to be acquired upon each exercise of the Management Stockholder's Non-Qualified Options; and Management Stockholder further covenants and agrees that he will furnish the Company with copies of the forms of election the Management Stockholder files within 30 days after the date hereof, and within 30 days after each exercise of Management Stockholder's Non-Qualified Options and with evidence that each such election has been filed in a timely manner. The Company agrees that, for purposes of its reporting and withholding in connection with the election provided for in the preceding sentence, the Management Stockholder will not be deemed to have realized any compensation income with respect to any shares of Retained Stock. 14. Notice of Change of Beneficiary. Immediately prior to any transfer of Stock to a Management Stockholder's Trust, the Management Stockholder shall provide the Company with a copy of the instruments creating the Management Stockholder's Trust and with the identity of the beneficiaries of the Management Stockholder's Trust. The Management Stockholder shall notify the Company immediately prior to any change in the identity of any beneficiary of the Management Stockholder's Trust. 15. Expiration of Certain Provisions. The provisions contained in Sections 4, 5 and 6 of this Agreement and the portion of any other provision of this Agreement which incorporates the provisions of Sections 4, 5 and 6, shall terminate and be of no further force or effect with respect to any shares of Stock sold by the Management Stockholder (i) pursuant to an effective registration statement filed by the Company pursuant to Section 10 hereof or (ii) pursuant to the terms of the Sale Participation Agreement of even date herewith, among the Management Stockholder, and KKR 1996 Fund L.P., NXS Associates, L.P. and KKR Partners II, L.P. The provisions contained in Sections 2(e), 3, 4, 5, 6 and 13 of this Agreement, and the portion of any other provisions of this Agreement which incorporate the provisions of 18 such Sections, shall terminate and be of no further force or effect upon (i) the sale of all or substantially all of the assets of the Company to a person or group that is not an affiliate of Kohlberg Kravis Roberts & Co. L.P. ("KKR"), (ii) an acquisition of voting stock of the Company resulting in more than 50% of the voting stock of the Company being held by a person or group that does not include KKR or any of its affiliates or (iii) the consummation of a merger, reorganization, business combination or liquidation of the Company, but only if such merger, reorganization, business combination or liquidation results in the Partnership or NXS Associates, L.P., or any affiliate or affiliates thereof, together no longer having the power (A) to elect a majority of the Board of Directors of the Company or such other corporation which succeeds to the Company's rights and obligations pursuant to such merger, reorganization, business combination or liquidation, or (B) if the resulting entity of such merger, reorganization, business combination or liquidation is not a corporation, to select the general partner(s) or other persons or entities controlling the operations and business of the resulting entity. Such provisions and the portion of any other provisions of this Agreement which incorporate such provisions shall also terminate and be of no further force and effect if the Management Stockholder's employment is terminated and the Company has not given a Call Notice within 75 days from the date of the applicable Call Event (i) with respect to all the Stock of a Management Stockholder if the Management Stockholder's employment has been terminated as a result of termination by the Management Stockholder with Good Reason or by the Company without Cause, and (ii) with respect to only the Initial Stock of a Management Stockholder if the Management Stockholder's employment has been terminated for any other reason. 16. Recapitalizations, etc. The provisions of this Agreement shall apply, to the full extent set forth herein with respect to the Stock or the Options, to any and all shares of capital stock of the Company or any capital stock, partnership units or any other security evidencing ownership interests in any successor or assign of the Company (whether by merger, consolidation, sale of assets or otherwise) which may be issued in respect of, in exchange for, or substitution of the Stock or the Options, by reason of any stock dividend, split, reverse split, combination, recapitalization, liquidation, reclassification, merger, consolidation or otherwise. 17. Management Stockholder's Employment by the Company. Nothing contained in this Agreement or in any other agreement entered into by the Company and the Management Stockholder contemporaneously with the execution of this Agreement (i) obligates the Company or any subsidiary of the Company to employ the Management Stockholder in any capacity whatsoever or (ii) prohibits or restricts the Company (or any such subsidiary) from terminating the employment, if any, of the Management Stockholder at any time or for any reason whatsoever, with or without Cause, and the Management Stockholder hereby acknowledges and agrees that neither the Company nor any other person has made any representations or promises whatsoever to the Management Stockholder concerning the Management Stockholder's employment or continued employment by the Company or any subsidiary of the Company. 19 18. State Securities Laws. The Company hereby agrees to use its best efforts to comply with all state securities or "blue sky" laws which might be applicable to the sale of the Stock and the issuance of the Options to the Management Stockholder. 19. Binding Effect. The provisions of this Agreement shall be binding upon and accrue to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns. In the case of a transferee permitted under Section 2(a) hereof, such transferee shall be deemed the Management Stockholder hereunder; provided, however, that no transferee (including without limitation, transferees referred to in Section 2(a) hereof) shall derive any rights under this Agreement unless and until such transferee has delivered to the Company a valid undertaking and becomes bound by the terms of this Agreement. 20. Amendment. This Agreement may be amended only by a written instrument signed by the Parties hereto. 21. Closing. Except as otherwise provided herein, the closing of each purchase and sale of shares of Stock and the payment of the Option Excess Price, if any, pursuant to this Agreement shall take place at the principal office of the Company on the tenth business day following delivery of the notice by either Party to the other of its exercise of the right to purchase or sell such Stock hereunder or to cause the payment of the Option Excess Price, if any. 22. Applicable Law. The laws of the state of Delaware (or if the Company reincorporates in another state, of that state) shall govern the interpretation, validity and performance of the terms of this Agreement, regardless of the law that might be applied under principles of conflicts of law. Any suit, action or proceeding against the Management Stockholder, with respect to this Agreement, or any judgment entered by any court in respect of any thereof, may be brought in any court of competent jurisdiction in the State of Delaware (or if the Company reincorporates in another state, in that state) or New York, as the Company may elect in its sole discretion, and the Management Stockholder hereby submits to the non-exclusive jurisdiction of such courts for the purpose of any such suit, action, proceeding or judgment. By the execution and delivery of this Agreement, the Management Stockholder appoints The Corporation Trust Company, at its office in New York, New York or Wilmington, Delaware (or if the Company reincorporates in another state, an office in that state), as the case may be, as his agent upon which process may be served in any such suit, action or proceeding. Service of process upon such agent, together with notice of such service given to the 20 Management Stockholder in the manner provided in Section 25 hereof, shall be deemed in every respect effective service of process upon him in any suit, action or proceeding. Nothing herein shall in any way be deemed to limit the ability of the Company to serve any such writs, process or summonses in any other manner permitted by applicable law or to obtain jurisdiction over the Management Stockholder, in such other jurisdictions and in such manner, as may be permitted by applicable law. The Management Stockholder hereby irrevocably waives any objections which he may now or hereafter have to the laying of the venue of any suit, action or proceeding arising out of or relating to this Agreement brought in any court of competent jurisdiction in the State of Delaware (or if the Company reincorporates in another state, in that state) or New York, and hereby further irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in any inconvenient forum. No suit, action or proceeding against the Company with respect to this Agreement may be brought in any court, domestic or foreign, or before any similar domestic or foreign authority other than in a court of competent jurisdiction in the State of Delaware (or if the Company reincorporates in another state, in that state) or New York, and the Management Stockholder hereby irrevocably waives any right which he may otherwise have had to bring such an action in any other court, domestic or foreign, or before any similar domestic or foreign authority. The Company hereby submits to the jurisdiction of such courts for the purpose of any such suit, action or proceeding. Each Party hereto hereby irrevocably and unconditionally waives trial by jury in any legal action or proceeding in relation to this Agreement and for any counterclaim therein. 23. Assignability of Certain Rights by the Company. The Company shall have the right to assign any or all of its rights or obligations to purchase shares of Stock pursuant to Sections 4, 5 and 6 hereof; provided, however, that the Company shall remain obligated to perform its obligations notwithstanding such assignment in the event that such assignee fails to perform the obligations so assigned to it. 24. Miscellaneous. In this Agreement (i) all references to "dollars" or "$" are to United States dollars and (ii) the word "or" is not exclusive. If any provision of this Agreement shall be declared illegal, void or unenforceable by any court of competent jurisdiction, the other provisions shall not be affected, but shall remain in full force and effect. 25. Notices. All notices and other communications provided for herein shall be in writing and shall be deemed to have been duly given if delivered by hand (whether by overnight courier or otherwise) or sent by registered or certified mail, return receipt requested, postage prepaid, or by overnight delivery or telecopy, to the Party to whom it is directed: 21 (a) If to the Company, to it at the following address: c/o Kohlberg Kravis Roberts & Co. 2800 Sand Hill Road Suite 200 Menlo Park, California 94025 Attn: Michael Michelson with a copy to: Simpson Thacher & Bartlett 425 Lexington Avenue New York, New York 10017-3909 Attn: Charles I. Cogut, Esq. (b) If to the Management Stockholder, to him at the address set forth below under his signature; or at such other address as either party shall have specified by notice in writing to the other. 26. Covenant Not to Compete; Confidential Information. (a) In consideration of the Company entering into this Agreement with the Management Stockholder, the Management Stockholder hereby agrees effective as of the Base Date, for so long as the Management Stockholder is employed by the Company or one of its subsidiaries and for a period of one year thereafter (the "Noncompete Period"), the Management Stockholder shall not, directly or indirectly, engage in the production, sale or distribution of any product produced, sold, distributed or which is in development by the Company or its subsidiaries on the date hereof or during the Noncompete Period anywhere in the world in which the Company or its subsidiaries is doing business other than through the Management Stockholder's employment with the Company or any of its subsidiaries. In the event that the Management Stockholder's employment is terminated by the Management Stockholder for Good Reason or by the Company without Cause, then the Company shall pay the Management Stockholder an amount equal to 50% of such Management Stockholder's base salary on the date of the termination of the Management Stockholder's employment. At the Company's option, the Noncompete Period may be extended for an additional one year period if (i) within nine months of the termination of the Management Stockholder's employment, the Company gives the Management Stockholder notice of such extension and (ii) beginning with the first anniversary of such termination, the Company pays the Management Stockholder an amount equal to 50% of the Management Stockholder's base salary on the date of the termination of his employment. Each amount referred to in the preceding two sentences shall be paid in installments in a manner consistent with the then current salary payment policies of the Company; provided that if at any time the Company 22 elects, in its sole discretion, to waive further compliance by the Management Stockholder with the requirements of this Section 26(a) (upon the Management Stockholder securing alternate employment or otherwise), then the Company shall be relieved of its obligation to pay the unpaid balance, if any, of such amounts which is then owing to the Management Stockholder. For purposes of this Agreement, the phrase "directly or indirectly engage in" shall include any direct or indirect ownership or profit participation interest in such enterprise, whether as an owner, stockholder, partner, joint venturer of otherwise, and shall include any direct or indirect participation in such enterprise as a consultant, licensor of technology or otherwise. (b) The Management Stockholder will not disclose or use at any time any Confidential Information (as defined below) of which the Management Stockholder is or becomes aware, whether or not such information is developed by him, except to the extent that such disclosure or use is directly related to and required by the Management Stockholder's performance of duties, if any, assigned to the Management Stockholder by the Company. As used in this Agreement, the term "Confidential Information" means information that is not generally known to the public and that is used, developed or obtained by the Company or its subsidiaries in connection with its business, including but not limited to (i) products or services, (ii) fees, costs and pricing structures, (iii) designs, (iv) computer software, including operating systems, applications and program listings, (v) flow charts, manuals and documentation, (vi) data bases, (vii) accounting and business methods, (viii) inventions, devices, new developments, methods and processes, whether patentable or unpatentable and whether or not reduced to practice, (ix) customers and clients and customer or client lists, (x) other copyrightable works, (xi) all technology and trade secrets, and (xii) all similar and related information in whatever form. Confidential Information will not include any information that has been published in a form generally available to the public prior to the date the Management Stockholder proposes to disclose or use such information. The Management Stockholder acknowledges and agrees that all copyrights, works, inventions, innovations, improvements, developments, patents, trademarks and all similar or related information which relate to the actual or anticipated business of the Company and its subsidiaries (including its predecessors) and conceived, developed or made by the Management Stockholder while employed by the Company or its subsidiaries belong to the Company. The Management Stockholder will perform all actions reasonably requested by the Company (whether during or after the Noncompete Period) to establish and confirm such ownership at the Company's expense (including without limitation assignments, consents, powers of attorney and other instruments). If the Management Stockholder is bound by any other agreement with the Company regarding the use or disclosure of confidential information, the provisions of this Agreement shall be read in such a way as to further restrict and not to permit any more extensive use or disclosure of confidential information. (c) Notwithstanding clauses (a) and (b) above, if at any time a court holds that the restrictions stated in such clauses (a) and (b) are unreasonable or otherwise unenforceable under circumstances then existing, the parties hereto agree that the maximum period, scope or geographic area determined to be reasonable under such circumstances by such court will be substituted for the stated period, scope or area. Because the Management Stockholder's services are unique and because the Management Stockholder has had access to 23 Confidential Information, the parties hereto agree that money damages will be an inadequate remedy for any breach of this Agreement. In the event a breach or threatened breach of this Agreement, the Company or its successors or assigns may, in addition to other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific performance and/or injunctive relief in order to enforce, or prevent any violations of, the provisions hereof (without the posting of a bond or other security). 24 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written. AMPHENOL CORPORATION By: /s/ Edward C. Wetmore --------------------------------- Name: Edward C. Wetmore Title: Secretary and General Counsel /s/ Martin Loeffler ------------------------------------ Martin Loeffler ------------------------------------ Management Stockholder 58 N. Star Drive Southington, CT 05489 Address of Management Stockholder SCHEDULE I Targeted Retained Number: 94,849 Actual Retained Number: 94,849 Number of Shares of Retained Stock: 94,849 Number of Shares of Purchase Stock: 0 Issued Stock: 0 Market Stock: 0 Aggregate Purchase Price: 0 EXHIBIT A Form of Non-Qualified Stock Option Agreement EX-10.14 9 MANAGEMENT STOCKHOLDERS AGMT. W/ EDWARD JEPSEN EXHIBIT 10.14 MANAGEMENT STOCKHOLDER'S AGREEMENT This Management Stockholder's Agreement (this "Agreement") is entered into as of May 19, 1997 between Amphenol Corporation, a Delaware Corporation (the "Company"), and Edward Jepsen (the "Management Stockholder") (the Company and the Management Stockholder being hereinafter collectively referred to as the "Parties"). On January 23, 1997, NXS Acquisition Corp., a Delaware corporation ("Newco"), and the Company entered into an Agreement and Plan of Merger (the "Merger Agreement") pursuant to which Newco is to be merged with and into the Company (the "Merger"). Pursuant to the Merger, stockholders of the Company may elect to receive $26.00 per share in cash or to retain the Company's Class A Common Stock, par value $.001 per share (the "Common Stock"), in each case, subject to the effects of proration. In connection with the Merger, certain key employees of the Company have agreed in principle to retain a specified number of shares of Common Stock (such specified number of shares, the "Targeted Retained Number"). This Agreement is one of several other agreements ("Other Management Stockholders' Agreements") which have been, or which in the future will be, entered into between the Company and other individuals who are or will be key employees of the Company or one of its subsidiaries (collectively, the "Other Management Stockholders"). The Company and the Management Stockholder have agreed in principle that (i) if, after giving effect to proration, the actual number of shares of Common Stock retained by such Management Stockholder (the "Actual Retained Number") is higher than the Targeted Retained Number, then such Management Stockholder will be permitted to sell a number of shares equal to such difference, and (ii) if, after giving effect to proration, the Actual Retained Number is less than the Targeted Retained Number, such Management Stockholder will purchase a number of shares equal to such difference. The shares of Common Stock retained by the Management Stockholder after giving effect to any sale contemplated by the preceding clause (i) shall be referred to herein as "Retained Stock." The shares of Common Stock purchased by the Management Stockholder contemplated by the preceding clause (ii), if any, shall be referred to herein as "Purchase Stock." Schedule I hereto sets forth, for the Management Stockholder named above, the Targeted Retained Number, the Actual Retained Number, the number of shares of Retained Stock, the number of shares of Purchase Stock and, if the number of shares of Purchase Stock is greater than zero, whether such shares are to be sold to the Management Stockholder by the Company (any such shares referred to herein as "Issued Stock") or purchased by the Management Stockholder on the New York Stock Exchange (any such shares referred to herein as "Market Stock"). After giving effect to the foregoing, the Management Stockholder shall own, in the aggregate, a total number of shares of Common Stock equal to at least the Targeted Retained Number. In addition, the Company will grant to the Management Stockholder at or as soon as practicable after the effective time of the Merger an option or options to purchase Common Stock ("Options") at an exercise price of $26.00 per share of Common Stock pursuant to the terms of the 1997 2 Option Plan for Key Employees of Amphenol Corporation and Subsidiaries (the "Option Plan") and the "Non-Qualified Stock Option Agreement" attached hereto as Exhibit A. NOW THEREFORE, to implement the foregoing and in consideration of the grant of Options and of the mutual agreements contained herein, the Parties agree as follows: 1. Common Stock; Issuance of Options. (a) If the Actual Retained Number set forth on Schedule I hereto is greater than the Targeted Retained Number, then the Management Stockholder shall, after the Stockholders Meeting (as defined in the Merger Agreement), be permitted to sell a number of shares equal to the difference. Subject to the terms and conditions hereinafter set forth, if the number of shares of Issued Stock set forth on Schedule I hereto is greater than zero, then the Management Stockholder hereby subscribes for and shall purchase, and the Company shall sell to the Management Stockholder, such number of shares of Issued Stock at a purchase price per share of $26.00 (for purposes hereof, such price shall be referred to as the "Base Price") on the date of the Effective Time of the Merger (as defined in the Merger Agreement) (the "Base Date") or, if not on the Base Date, on such later date after the Effective Time of the Merger as may be determined by the Company in consultation with the Management Stockholder (the "Deferred Sale Date"). The Company shall have no obligation to sell any Issued Stock to any person who (i) is a resident or citizen of a state or other jurisdiction in which the sale of the Issued Stock to him or her would constitute a violation of the securities or "blue sky" laws of such jurisdiction or (ii) is not an employee of the Company or any of its subsidiaries on the date hereof. If the number of shares of Market Stock set forth on Schedule I hereto is greater than zero, then the Management Stockholder shall promptly after the date of the Stockholders Meeting purchase such number of shares of Market Stock on The New York Stock Exchange. (b) The aggregate price for the Issued Stock shall be the amount set forth in Schedule I hereto (such amount hereinafter sometimes referred to as the "Aggregate Purchase Price"). The Aggregate Purchase Price shall be paid in the following manner: the Management Stockholder shall deliver to the Company at least three business days prior to the Base Date (or the Deferred Sale Date, if applicable) cash or a certified bank check or checks payable to the order of the Company in the amount of the Aggregate Purchase Price. On the Base Date (or the Deferred Sale Date, if applicable), in consideration of receipt of the Aggregate Purchase Price, the Company will deliver to the Management Stockholder a certificate, registered in the Management Stockholder's name, for the Issued Stock, which shall be subject to the terms and conditions hereinafter set forth. (c) Subject to the terms and conditions hereinafter set forth and upon and as of May 19, 1997 (the "Option Grant Date"), the Company shall issue to the Management Stockholder the Options and the Parties shall execute and deliver to each other copies of the Non-Qualified Stock Option Agreement concurrently with the issuance of the Options. 3 2. Management Stockholder's Representations, Warranties and Agreements. (a) The Management Stockholder agrees and acknowledges that he will not, directly or indirectly, offer, transfer, sell, assign, pledge, hypothecate or otherwise dispose of (any such act being referred to herein as a "transfer") any shares of the Purchase Stock, Retained Stock and, at the time of exercise, the Common Stock issuable upon exercise of the Options (the "Option Stock" and collectively with Retained Stock and Purchase Stock, the "Stock") unless such transfer complies with Section 3 of this Agreement. If the Management Stockholder is an "affiliate" (as defined under Rule 405 of the rules and regulations promulgated under the Act and as interpreted by the Board of Directors of the Company) of the Company (an "Affiliate"), the Management Stockholder also agrees and acknowledges that he will not transfer any shares of the Stock unless (i) the transfer is pursuant to an effective registration statement under the Securities Act of 1933, as amended, and the rules and regulations in effect thereunder (the "Act"), and in compliance with applicable provisions of state securities laws or (ii) (A) counsel for the Management Stockholder (which counsel shall be reasonably acceptable to the Company) shall have furnished the Company with an opinion, satisfactory in form and substance to the Company, that no such registration is required because of the availability of an exemption from registration under the Act and (B) if the Management Stockholder is a citizen or resident of any country other than the United States, or the Management Stockholder desires to effect any transfer in any such country, counsel for the Management Stockholder (which counsel shall be reasonably satisfactory to the Company) shall have furnished the Company with an opinion or other advice reasonably satisfactory in form and substance to the Company to the effect that such transfer will comply with the securities laws of such jurisdiction. Notwithstanding the foregoing, the Company acknowledges and agrees that any of the following transfers are deemed to be in compliance with the Act and this Agreement and no opinion of counsel is required in connection therewith: (x) a transfer made pursuant to Section 4, 5 or 6 hereof, (y) a transfer upon the death of the Management Stockholder to his executors, administrators, testamentary trustees, legatees or beneficiaries (the "Management Stockholder's Estate") or a transfer to the executors, administrators, testamentary trustees, legatees or beneficiaries of a person who has become a holder of Stock in accordance with the terms of this Agreement, provided that it is expressly understood that any such transferee shall be bound by the provisions of this Agreement and (z) a transfer made after the Base Date in compliance with the federal securities laws to a trust or custodianship the beneficiaries of which may include only the Management Stockholder, his spouse or his lineal descendants (a "Management Stockholder's Trust") or a transfer made after the third anniversary of the Base Date to such a trust by a person who has become a holder of Stock in accordance with the terms of this Agreement, provided that such transfer is made expressly subject to this Agreement and that the transferee agrees in writing to be bound by the terms and conditions hereof. (b) The certificate (or certificates) representing the Stock shall bear the following legend: "THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR 4 OTHERWISE DISPOSED OF UNLESS SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION COMPLIES WITH THE PROVISIONS OF THE MANAGEMENT STOCKHOLDER'S AGREEMENT DATED AS OF MAY 19, 1997 BETWEEN AMPHENOL CORPORATION ("THE COMPANY") AND THE MANAGEMENT STOCKHOLDER NAMED ON THE FACE HEREOF (A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY)." (c) The Management Stockholder acknowledges that he has been advised that (i) the Issued Stock, if any, has been registered on Form S-8 under the Act, (ii) a restrictive legend in the form heretofore set forth shall be placed on the certificates representing the Stock and (iii) a notation shall be made in the appropriate records of the Company indicating that the Stock is subject to restrictions on transfer and appropriate stop transfer restrictions will be issued to the Company's transfer agent with respect to the Stock. If the Management Stockholder is an Affiliate, the Management Stockholder also acknowledges that (1) the Stock must be held indefinitely and the Management Stockholder must continue to bear the economic risk of the investment in the Stock unless it is subsequently registered under the Act or an exemption from such registration is available, (2) when and if shares of the Stock may be disposed of without registration in reliance on Rule 144 of the rules and regulations promulgated under the Act, such disposition can be made only in limited amounts in accordance with the terms and conditions of such Rule and (3) if the Rule 144 exemption is not available, public sale without registration will require compliance with some other exemption under the Act. (d) If any shares of the Stock are to be disposed of in accordance with Rule 144 under the Act or otherwise, the Management Stockholder shall promptly notify the Company of such intended disposition and shall deliver to the Company at or prior to the time of such disposition such documentation as the Company may reasonably request in connection with such sale and, in the case of a disposition pursuant to Rule 144, shall deliver to the Company an executed copy of any notice on Form 144 required to be filed with the Securities and Exchange Commission (the "SEC"). (e) The Management Stockholder agrees that, if any shares of the capital stock of the Company are offered to the public pursuant to an effective registration statement under the Act (other than registration of securities issued under an employee plan), the Management Stockholder will not effect any public sale or distribution of any shares of the Stock not covered by such registration statement from the time of the receipt of a notice from the Company that the Company has filed or imminently intends to file such registration statement to, or within 180 days after, the effective date of such registration statement, unless otherwise agreed to in writing by the Company. (f) The Management Stockholder represents and warrants that (i) with respect to Issued Stock, if any, he has received and reviewed the document(s) comprising the Prospectus (the "Prospectus") relating to Issued Stock, if any, and the documents referred to therein, certain of which documents set forth the rights, preferences and restrictions relating to 5 the Stock and (ii) he has been given the opportunity to obtain any additional information or documents and to ask questions and receive answers about such documents, the Company and the business and prospects of the Company which he deems necessary to evaluate the merits and risks related to his investment in the Issued Stock, if any, and to verify the information contained in the Prospectus and the information received as indicated in this Section 2(f)(ii), and he has relied solely on such information. (g) The Management Stockholder further represents and warrants that (i) his financial condition is such that he can afford to bear the economic risk of holding the Issued Stock, if any, for an indefinite period of time and has adequate means for providing for his current needs and personal contingencies, (ii) he can afford to suffer a complete loss of his or her investment in the Issued Stock, if any, (iii) he understands and has taken cognizance of all risk factors related to the purchase of the Issued Stock, if any, including those set forth in the Prospectus referred to above, and (iv) his knowledge and experience in financial and business matters are such that he is capable of evaluating the merits and risks of his purchase of the Issued Stock, if any, as contemplated by this Agreement. 3. Restriction on Transfer. Except for transfers permitted by clauses (x), (y) and (z) of Section 2(a) or a sale of shares of Stock pursuant to an effective registration statement under the Act filed by the Company or pursuant to the Sale Participation Agreement (as defined below), the Management Stockholder agrees that he will not transfer any shares of the Stock at any time prior to the fifth anniversary of the Base Date. No transfer of any such shares in violation hereof shall be made or recorded on the books of the Company and any such transfer shall be void and of no effect. 4. Right of First Refusal. If at any time after the fifth anniversary of the Base Date and prior to a Public Offering (as hereinafter defined) the Management Stockholder receives a bona fide offer to purchase any or all of his shares of Stock (the "Offer") from a third party (the "Offeror") which the Management Stockholder wishes to accept, the Management Stockholder shall cause the Offer to be reduced to writing and shall notify the Company in writing of his wish to accept the Offer. The Management Stockholder's notice shall contain an irrevocable offer to sell such shares of Stock to the Company (in the manner set forth below) at a purchase price equal to the price contained in, and on the same terms and conditions of, the Offer, and shall be accompanied by a true copy of the Offer (which shall identify the Offeror). At any time within 30 days after the date of the receipt by the Company of the Management Stockholder's notice, the Company shall have the right and option to purchase, or to arrange for a third party to purchase, all of the shares of Stock covered by the Offer either (i) at the same price and on the same terms and conditions as the Offer or (ii) if the Offer includes any consideration other than cash, then at the sole option of the Company, at the equivalent all cash price, determined in good faith by the Company's Board of Directors, by delivering a certified bank check or checks in the appropriate amount (and any such non-cash consideration to be paid) to the Management Stockholder at the principal office of the 6 Company against delivery of certificates or other instruments representing the shares of Stock so purchased, appropriately endorsed by the Management Stockholder. If at the end of such 30 day period, the Company has not tendered the purchase price for such shares in the manner set forth above, the Management Stockholder may during the succeeding 30 day period sell not less than all of the shares of Stock covered by the Offer to the Offeror at a price and on terms no less favorable to the Management Stockholder than those contained in the Offer. Promptly after such sale, the Management Stockholder shall notify the Company of the consummation thereof and shall furnish such evidence of the completion and time of completion of such sale and of the terms thereof as may reasonably be requested by the Company. If, at the end of 30 days following the expiration of the 30 day period for the Company to purchase the Stock, the Management Stockholder has not completed the sale of such shares of the Stock as aforesaid, all the restrictions on sale, transfer or assignment contained in this Agreement shall again be in effect with respect to such shares of the Stock. 5. Management Stockholder's Resale of Stock and Options to the Company Upon The Management Stockholder's Death or Disability or in Case of Certain Terminations of Employment. (a) Except as otherwise provided herein, if, prior to the fifth anniversary of the Base Date, (i) the Management Stockholder is still in the employ of the Company or any subsidiary of the Company, or has retired from the Company and its subsidiaries at age 65 or over (or such other age as may be approved by the Board of Directors of the Company) after having been employed by the Company or any subsidiary for at least three years after the Base Date, and (ii) the Management Stockholder either dies or becomes permanently disabled then the Management Stockholder, the Management Stockholder's Estate or a Management Stockholder's Trust, as the case may be, shall have the right, for six months following the date of death or permanent disability, (A) to sell to the Company, and the Company shall be required to purchase, on one occasion, all or any portion of the shares of Stock then held by the Management Stockholder, the Management Stockholder's Estate and/or the Management Stockholder's Trust, as the case may be, at the Section 5(a) Repurchase Price, as determined in accordance with Section 7, and (B) to require the Company to pay to the Management Stockholder or the Management Stockholder's Estate or the Management Stockholder's Trust, as the case may be, an additional amount equal to the Option Excess Price determined on the basis of a Section 5(a) Repurchase Price as provided in Section 8 with respect to the termination of outstanding Options held by the Management Stockholder. (b) Except as otherwise provided herein, if the Management Stockholder's employment with the Company is terminated by the Company without Cause (as hereinafter defined) or by the Management Stockholder for Good Reason (as hereinafter defined) and, at such time, the Common Stock is not admitted to trading on any national securities exchange or the NASDAQ Stock Market, then the Management Stockholder (or in the event of the Management Stockholder's death, the Management Stockholder's Estate) or a Management Stockholder's Trust, as the case may be, shall have the right, for 30 days following the date of termination, to sell to the Company, and the Company shall be required to purchase, on one occasion, all or any portion of the Retained Stock and any Issued Stock (other than any shares acquired upon the exercise of Options) or Market Stock (collectively, the "Initial 7 Stock") at the Section 5(b) Repurchase Price, as determined in accordance with Section 7, provided, that such right shall apply only to the actual shares of Common Stock constituting the Initial Stock pursuant to this Agreement, and shall not include any other shares of Common Stock, however acquired. If the Management Stockholder or the Management Stockholder's Trust, as the case may be, exercises the put rights granted under this Section 5(b), then (i) the Options (whether or not then exercisable) held by the Management Stockholder or the Management Stockholder's Trust, as the case may be, will terminate immediately without payment therefor, (ii) any Option Stock acquired prior to the date of the termination of employment may be retained and (iii) the exercise of any Options after the date of the termination of employment and prior to the exercise of the put rights pursuant to this Section 5(b) shall be deemed to be rescinded, and any Option Stock so acquired shall be delivered to the Company in return for the applicable exercise price paid therefor. (c) The Management Stockholder, the Management Stockholder's Estate and/or the Management Stockholder's Trust, as the case may be, shall send written notice to the Company of its intention to sell shares of Stock in exchange for the payment referred in Sections 5(a) and 5(b) above and to terminate such Options (either (i) in the case of Section 5(a), in exchange for the payment referred to in Section 5(a) or (ii) in the case of Section 5(b), without payment therefor) (the "Redemption Notice"). The completion of the purchase shall take place at the principal office of the Company on the tenth business day after the giving of the Redemption Notice. The applicable Repurchase Price and any payment with respect to the Options as described above shall be paid by delivery to the Management Stockholder, the Management Stockholder's Estate or the Management Stockholder's Trust, as the case may be, of a certified bank check or checks in the appropriate amount payable to the order of the Management Stockholder, the Management Stockholder's Estate or the Management Stockholder's Trust, as the case may be, against delivery of certificates or other instruments representing the Stock so purchased and appropriate documents cancelling the Options so terminated appropriately endorsed or executed by the Management Stockholder, the Management Stockholder's Estate or the Management Stockholder's Trust, or his, her or its duly authorized representative. For purposes of this Agreement, the Management Stockholder shall be deemed to have a "permanent disability" if the Management Stockholder is unable to engage in the activities required by the Management Stockholder's job by reason of any medically determined physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. (d) Notwithstanding anything in Section 5(a) or Section 5(b) to the contrary and subject to Section 11, if there exists and is continuing a default or an event of default on the part of the Company or any subsidiary of the Company under any loan, guarantee or other agreement under which the Company or any subsidiary of the Company has borrowed money or if the repurchase referred to in Section 5(a) or Section 5(b) would result in a default or an event of default on the part of the Company or any subsidiary of the Company under any such agreement or if a repurchase would not be permitted under the Delaware General Corporation Law (the "DGCL") or would otherwise violate the DGCL (or if the Company reincorporates in another state, the business corporation law of such state) (each such occurrence being an "Event"), the Company shall not be obligated to repurchase any of the 8 Stock or the Options from the Management Stockholder, the Management Stockholder's Estate or a Management Stockholder's Trust, as the case may be, until the first business day which is 10 calendar days after all of the foregoing Events have ceased to exist (the "Repurchase Eligibility Date"); provided, however, that (i) the number of shares of Stock subject to repurchase under this Section 5(d) shall be that number of shares of Stock, and (ii) in the case of a repurchase pursuant to Section 5(a), the number of Exercisable Option Shares (as defined in Section 8) for purposes of calculating the Option Excess Price payable under this Section 5(d) shall be the number of Exercisable Option Shares, held by the Management Stockholder, the Management Stockholder's Estate or a Management Stockholder's Trust, as the case may be, at the time of delivery of a Redemption Notice in accordance with Section 5(c) hereof; provided, further, that the Repurchase Calculation Date shall be determined in accordance with Section 7 as of the Repurchase Eligibility Date (unless, in a repurchase pursuant to Section 5(a), the Section 5(a) Repurchase Price would be greater if the Repurchase Calculation Date had been determined as if no Event had occurred in which case, solely for purposes of this proviso, the Repurchase Calculation Date shall be determined as if no Event had occurred). All Options exercisable as of the date of a Redemption Notice, in the case of a repurchase pursuant to Section 5(a), shall continue to be exercisable until the repurchase pursuant to such Redemption Notice, provided that to the extent any Options are exercised after the date of such Redemption Notice, the number of Exercisable Option Shares for purposes of calculating the Option Excess Price shall be reduced accordingly. (e) Notwithstanding any other provision of this Section 5 to the contrary and subject to Section 11, the Management Stockholder, the Management Stockholder's Estate or a Management Stockholder's Trust, as the case may be, shall have the right to withdraw any Redemption Notice which has been pending for 60 or more days and which has remained unsatisfied because of the provisions of Section 5(d). 6. The Company's Option to Repurchase Stock and Options of Management Stockholder. (a) If, on or prior to the fifth anniversary of the Base Date, (i) the Management Stockholder's active employment with the Company (and/or, if applicable, its subsidiaries) is terminated by the Company with Cause or by the Management Stockholder without Good Reason, (ii) the beneficiaries of a Management Stockholder's Trust shall include any person or entity other than the Management Stockholder, his spouse or his lineal descendants, or (iii) the Management Stockholder shall effect a transfer of any of the Stock other than as permitted in this Agreement (each, a "Section 6(a) Call Event"), then the Company shall have the right to purchase all, but not less than all, of the shares of the Stock then held by the Management Stockholder or a Management Stockholder's Trust at the Section 6(a) Repurchase Price determined in accordance with Section 7 hereof. If any Section 6(a) Call Event has occurred, then, whether or not the Company exercises the call rights granted under this Section 6(a), the Options (whether or not then exercisable) held by the Management Stockholder or the Management Stockholder's Trust, as the case may be, will terminate immediately without payment therefor. 9 (b) If, on or prior to the fifth anniversary of the Base Date, the Management Stockholder's employment is terminated as a result of the death or permanent disability of the Management Stockholder or if the Management Stockholder dies or becomes permanently disabled after the retirement of the Management Stockholder from the Company or any of its subsidiaries at age 65 or over (or such other age as may be approved by the Board of Directors of the Company) after having been employed by the Company or any subsidiary for at least three years after the Base Date, (each a "Section 6(b) Call Event"), then the Company shall have the right to purchase all, but not less than all, of the shares of Stock then held by the Management Stockholder, the Management Stockholder's Estate or a Management Stockholder's Trust at the Section 5(a) Repurchase Price. (c) If, on or prior to the fifth anniversary of the Base Date, the Management Stockholder's employment is terminated as a result of a termination by the Management Stockholder with Good Reason or upon the retirement of the Management Stockholder from the Company or any of its subsidiaries at age 65 or over (or such other age as may be approved by the Board of Directors of the Company) after having been employed by the Company or any subsidiary for at least three years after the Base Date, or by the Company without Cause (each a "Section 6(c) Call Event" and together with Section 6(a) Call Events and Section 6(b) Call Events, "Call Events"), then the Company shall have the right to purchase all, but not less than all, of the shares of Stock then held by the Management Stockholder or a Management Stockholder's Trust at the Section 6(c) Repurchase Price. (d) The Company shall have a period of 75 days from the date of a Call Event in which to give notice in writing to the Management Stockholder of the exercise of such election ("Call Notice"). In the event that the Company exercises its right to repurchase shares of Stock pursuant to Section 6(b) or Section 6(c), the Company shall also pay the Management Stockholder an amount equal to the Option Excess Price determined on the basis of the Section 5(a) Repurchase Price or Section 6(c) Repurchase Price, respectively, as provided in Section 8, with respect to the termination of outstanding Options held by the Management Stockholder. (e) The completion of the purchases pursuant to the foregoing shall take place at the principal office of the Company on the tenth business day after the giving of notice of the exercise of the option to purchase. The applicable Repurchase Price and any payment with respect to the Options as described in Sections 6(d) above shall be paid by delivery to the Management Stockholder, the Management Stockholder's Estate or a Management Stockholder's Trust, as the case may be, of a certified bank check or checks in the appropriate amount payable to the order of the Management Stockholder, the Management Stockholder's Estate or a Management Stockholder's Trust, as the case may be, against delivery of certificates or other instruments representing the Stock so purchased and appropriate documents cancelling the Options so terminated, appropriately endorsed or executed by the Management Stockholder, the Management Stockholder's Estate or a Management Stockholders Trust or his, her or its authorized representative. (f) Notwithstanding any other provision of this Section 6 to the contrary and subject to Section 11, if there exists and is continuing any Event, the Company shall 10 delay the repurchase of any of the Stock or the Options (pursuant to a Call Notice timely given in accordance with Section 6(d) hereof) from the Management Stockholder, the Management Stockholder's Estate or a Management Stockholder's Trust, as the case may be, until the Repurchase Eligibility Date; provided, however, that (i) the number of shares of Stock subject to repurchase under this Section 6(f) shall be that number of shares of Stock and (ii) in the case of a repurchase pursuant to Section 6(b) or Section 6(c), the number of Exercisable Option Shares for purposes of calculating the Option Excess Price payable under this Section 6(f) shall be the number of Exercisable Option Shares held by the Management Stockholder, the Management Stockholder's Estate or a Management Stockholder's Trust, as the case may be, at the time of delivery of a Call Notice in accordance with Section 6(d) hereof; and provided, further, that the Repurchase Calculation Date shall be determined in accordance with Section 7 based on the Repurchase Eligibility Date (unless (x) in the case of a Section 6(b) Call Event or a Section 6(c) Call Event, the applicable Repurchase Price would be greater if the Repurchase Calculation Date had been determined as if no Event had occurred, in which case the Repurchase Calculation Date shall be determined as if no Event had occurred, and (y) in the case of a Section 6(a) Call Event, the applicable Repurchase Price would be less if the Repurchase Calculation Date had been determined as if no Event had occurred, in which case the Repurchase Calculation Date shall be determined as if no Event had occurred). All Options exercisable as of the date of a Call Notice, in the case of a repurchase pursuant to Section 6(b) or Section 6(c), shall continue to be exercisable until the repurchase pursuant to such Call Notice, provided that to the extent that any Options are exercised after the date of such Call Notice, the number of Exercisable Option Shares for purposes of calculating the Option Excess Price shall be reduced accordingly. 7. Determination of Repurchase Price. (a) The Section 5(a) Repurchase Price, Section 5(b) Repurchase Price, Section 6(a) Repurchase Price and the Section 6(c) Repurchase Price are hereinafter collectively referred to as the "Repurchase Price." The Repurchase Price shall be calculated on the basis of the unaudited financial statements of the Company or the Market Price Per Share (as defined in Section 7(j)) as of the last day of the month preceding the later of (i) the month in which the event giving rise to the repurchase occurs and (ii) the month in which the Repurchase Eligibility Date occurs (hereinafter called the "Repurchase Calculation Date"). The event giving rise to the repurchase shall be the death, permanent disability, retirement or termination of employment, as the case may be, of the Management Stockholder, not the giving of any notice required pursuant to Section 5 or 6. (b) The Section 5(a) Repurchase Price shall be a per share Repurchase Price equal to the Base Price, provided that if the Book Value Per Share (as defined in Section 7(h)) (or, after a Public Offering, the Market Price Per Share) as of the Repurchase Calculation Date is greater than the Base Price, then the Section 5(a) Repurchase Price shall be equal to the Base Price plus the amount by which the Book Value Per Share (or, after a Public Offering, the Market Price Per Share) as of the Repurchase Calculation Date exceeds the Base Price. 11 (c) The Section 5(b) Repurchase Price shall be a per share Repurchase Price equal to the Base Price, provided that if the Book Value Per Share as of the Repurchase Calculation Date is less than the Base Price, then the Section 5(b) Repurchase Price shall be equal to the Base Price less the amount by which the Base Price exceeds the Book Value Per Share as of the Repurchase Calculation Date (but shall not be less than zero). (d) The Section 6(a) Repurchase Price shall be a per share Repurchase Price equal to the least of (i) after a Public Offering, the Market Price Per Share, (ii) if the Book Value Per Share as of the Repurchase Calculation Date is less than the Base Price, the Base Price less the amount by which the Base Price exceeds Book Value Per Share as of the Repurchase Calculation Date (but shall not be less than zero), and (iii) if the Book Value Per Share as of the Repurchase Calculation Date exceeds the Base Price, the Base Price plus (x) the Percentage (as defined below) multiplied by (y) the amount by which the Book Value Per Share as of the Repurchase Calculation Date exceeds the Base Price. (e) The Section 6(c) Repurchase Price shall be a per share Repurchase Price equal to the Base Price, provided (x) if the Book Value Per Share (or, after a Public Offering, the Market Price Per Share) as of the Repurchase Calculation Date is less than the Base Price, then the Section 6(c) Repurchase Price shall equal the Base Price less the amount by which the Base Price exceeds Book Value Per Share (or, after a Public Offering, the Market Price Per Share) as of the Repurchase Calculation Date, and (y) if the Book Value Per Share (or, after a Public Offering, the Market Price Per Share) as of the Repurchase Calculation Date is greater than the Base Price, then the Section 6(c) Repurchase Price shall equal the Base Price plus the amount by which the Book Value Per Share (or, after a Public Offering, the Market Price Per Share) as of the Repurchase Calculation Date exceeds the Base Price, as the case may be. (f) For purposes of this Agreement the following definitions shall apply: "Cause" shall mean (i) the Management Stockholder's willful and continued failure to perform Management Stockholder's duties with respect to the Company or its subsidiaries which continues beyond ten days after a written demand for substantial performance is delivered to Management Stockholder by the Company or (ii) misconduct by Management Stockholder involving (x) dishonesty or breach of trust in connection with Management Stockholder's employment or (y) conduct which would be a reasonable basis for an indictment of Management Stockholder for a felony or for a misdemeanor involving moral turpitude or (z) which results in a demonstrable injury to the Company; and "Good Reason" shall mean (i) a reduction in Management Stockholder's base salary (other than a broad based salary reduction program affecting many members of management), (ii) a substantial reduction in Management Stockholder's duties and responsibilities other than as approved by the Chief Executive Officer of the Company as of the date of this Agreement, (iii) the elimination or reduction of the Management Stockholder's eligibility to participate in the Company's benefit programs that is inconsistent with the eligibility of similarly situated employees of the Company to participate therein, or (iv) a transfer of the Management Stockholder's primary workplace by more than fifty (50) miles from the workplace as of the date hereof. 12 (g) For purposes of this Agreement, the "Percentage" shall be determined as follows: Repurchase Calculation Date Percentage - --------------------------- ---------- Base Date through and including the first anniversary of the 0% Base Date After the first anniversary of the Base Date through and 20% including the second anniversary of the Base Date After the second anniversary of the Base Date through and 40% including the third anniversary of the Base Date After the third anniversary of the Base Date through and 60% including the fourth anniversary of the Base Date After the fourth anniversary of the Base Date through and 80% including the fifth anniversary of the Base Date After the fifth anniversary of the Base Date 100% (h) As used herein, "Book Value Per Share" shall be the quotient of (a) (i) $455,440,830 plus (ii) the aggregate net income of the Company from and after the date of the Effective Time of the Merger (as decreased by any net losses from and after the date of the Effective Time of the Merger) excluding any one time costs and expenses charged to income associated with the Merger and any related transactions plus (iii) the aggregate dollar amount contributed to (or credited to common stockholders' equity of) the Company after the date of the Effective Time of the Merger as equity of the Company (including consideration to be received upon exercise of the Options and other stock equivalents) plus (iv) to the extent reflected as deductions to Book Value Per Share in clause (ii) above, or minus, to the extent reflected as additions to Book Value Per Share in clause (ii) above, unusual or other items recognized by the Company (including, without limitation, one time or accelerated write-offs of good will), in each case, if and to the extent determined in the sole discretion of the Board of Directors of the Company, minus, (v) the aggregate dollar amount of any dividends paid by the Company after the date of the Effective Time of the Merger, divided by (b) the sum of the number of shares of Common Stock then outstanding and the number of shares of Common Stock issuable upon the exercise of all outstanding stock options and other rights to acquire Common Stock and the conversion of all securities convertible into shares of Common Stock. The items referred to in the calculations set forth in clauses (a)(ii), (a)(iii), (a)(iv) and (a)(v) of the immediately preceding sentence shall be determined in accordance with generally accepted accounting principles applied on a basis consistent with any prior periods as reflected in the consolidated financial statements of the Company. (i) As used herein the term "Public Offering" shall mean the sale of shares of Common Stock to the public subsequent to the date hereof pursuant to a registration statement under the Act which has been declared effective by the SEC (other than a registration statement on Form S-8 or any other similar form) which results in an active 13 trading market in 35% or more of the Common Stock. A "Qualified Public Offering" shall mean a Public Offering pursuant to an effective registration statement relating to the sale of shares of the Common Stock held by KKR 1996 Fund L.P., a Delaware limited partnership (the "Partnership") or NXS Associates, L.P., a Delaware limited partnership, or their respective affiliates; provided, however, that a "Qualified Public Offering" shall be deemed to have occurred if there has been any Public Offering and there exists an active trading market in 40% or more of the Common Stock. (j) As used herein, the term "Market Price Per Share" shall mean the price per share equal to the average of the last sale price of the Common Stock on the Repurchase Calculation Date on each exchange on which the Common Stock may at the time be listed or, if there shall have been no sales on any of such exchanges on the Repurchase Calculation Date, the average of the closing bid and asked prices on each such exchange at the end of the Repurchase Calculation Date or if there is no such bid and asked price on the Repurchase Calculation Date on the next preceding date when such bid and asked price occurred or, if the Common Stock shall not be so listed, the average of the closing sales prices as reported by NASDAQ at the end of the Repurchase Calculation Date in the over-the-counter market. If the Common Stock is not so listed or reported by NASDAQ, then the Market Price Per Share shall be the Book Value Per Share. (k) In determining the Repurchase Price, appropriate adjustments shall be made for any stock dividends, splits, combinations, recapitalizations or any other adjustment in the number of outstanding shares of Common Stock in order to maintain, as nearly as practicable, the intended operation of the provisions of this Section 7. 8. Stock Issued to Management Stockholder Upon Exercise of Stock Options; Termination of Options. (a) The Company may from time to time grant to the Management Stockholder, in addition to the Options, options under the Option Plan to purchase shares of Common Stock at the Base Price or at a different option exercise price. The term "Issued Stock" as used in this Agreement shall include all shares of Common Stock of the Company purchased by the Management Stockholder pursuant to this Agreement and issued to the Management Stockholder by the Company upon exercise of the Options and of any other stock options held by the Management Stockholder. (b) In the case of an exercise of the put or call rights described above in Sections 5(b) or 6(a), respectively, all outstanding Options of the Management Stockholder (whether or not then exercisable) will be automatically terminated without payment therefor. In the case of an exercise of the put rights described above in Section 5(a) or of the call rights described above in Sections 6(b) or 6(c), all outstanding Options granted to the Management Stockholder under the Option Plan or otherwise, whether or not then exercisable, will be automatically terminated upon the payment by the Company to the Management Stockholder, pursuant to the provisions of Sections 5(a) or 6(d) of this Agreement, as the case may be, of an amount equal to the Option Excess Price. If the Option Excess Price is zero or a negative number, all outstanding stock options granted to the Management Stockholder 14 under the Option Plan or otherwise, whether or not then exercisable, shall be automatically terminated upon the repurchase of Stock as provided in Sections 5(a), 6(b) or 6(c). With respect to each Option, the Option Excess Price is the excess, if any, of the Section 5(a) Repurchase Price or the Section 6(c) Repurchase Price, depending on which Repurchase Price is being used to repurchase the remainder of the Stock, over the Option Exercise Price (as defined in the Non-Qualified Option Agreement), multiplied by the number of Exercisable Option Shares thereunder. For purposes hereof, "Exercisable Option Shares" shall mean the shares of Common Stock which, at the time of determination of the Option Excess Price could be purchased by the Management Stockholder upon exercise of his or her outstanding options. The Company will use its reasonable best efforts to cause a Registration Statement on Form S-8 covering shares of Issued Stock contemplated hereby to be filed within six months of the date hereof. 9. The Company's Representations and Warranties. (a) The Company represents and warrants to the Management Stockholder that (i) this Agreement has been duly authorized, executed and delivered by the Company and (ii) the Issued Stock, when issued and delivered in accordance with the terms hereof, will be duly and validly issued, fully paid and nonassessable. (b) The Company will file the reports required to be filed by it under the Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder, to the extent required from time to time to enable the Management Stockholder to sell shares of Stock without registration under the Act within the limitations of the exemptions provided by (A) Rule 144 under the Act, as such Rule may be amended from time to time, or (B) any similar rule or regulation hereafter adopted by the SEC. Notwithstanding anything contained in this Section 9(b), the Company may de-register under Section 12 of the Exchange Act if it is then permitted to do so pursuant to the Exchange Act and the rules and regulations thereunder and, in such circumstances, shall not be required hereby to file any reports which may be necessary in order for Rule 144 or any similar rule or regulation under the Act to be available. Nothing in this Section 9(b) shall be deemed to limit in any manner the restrictions on sales of Stock contained in this Agreement. 10. "Piggyback" Registration Rights. (a) Effective upon the date of this Agreement, until the later of (i) the first occurrence of a Qualified Public Offering (as defined in Section 7(i) above) or (ii) the fifth anniversary of the Base Date, the Management Stockholder hereby agrees to be bound by all of the terms, conditions and obligations of the Registration Rights Agreement dated as of May 19, among the Company (as successor by Merger to Newco), KKR 1996 Fund L.P., NXS Associates, L.P. KKR Partners II, L.P. and NXS I, L.L.C. (the "Registration Rights Agreement") and, in the case of a Qualified Public Offering and subject to the limitations set forth in this Section 10, shall have all of the rights and privileges of the Registration Rights Agreement, in each case as if the Management Stockholder were an original party (other than the Company) thereto; provided, however, that the Management Stockholder shall not have any rights to request registration under Section 3 of the Registration Rights Agreement; and 15 provided further, that the Management Stockholder shall not be bound by any amendments to the Registration Rights Agreement unless the Management Stockholder consents thereto. Notwithstanding anything to the contrary contained in the Registration Rights Agreement, the Management Stockholder's rights and obligations under the Registration Rights Agreement shall be subject to the limitations and additional obligations set forth in this Section 10. All Stock purchased or held by the Management Stockholder, the Management Stockholder's Estate or the Management Stockholder's Trust pursuant to this Agreement shall be deemed to be Registrable Securities as defined in the Registration Rights Agreement. (b) The Company will promptly notify the Management Stockholder in writing (a "Notice") of any proposed registration (a "Proposed Registration") in connection with a Qualified Public Offering. If within 15 days of the receipt by the Management Stockholder of such Notice, the Company receives from the Management Stockholder, the Management Stockholder's Estate or the Management Stockholder's Trust a written request (a "Request") to register shares of Stock held by the Management Stockholder, the Management Stockholder's Estate or the Management Stockholder's Trust (which Request will be irrevocable unless otherwise mutually agreed to in writing by the Management Stockholder and the Company), shares of Stock will be so registered as provided in this Section 10; provided, however, that for each such registration statement only one Request, which shall be executed by the Management Stockholder, the Management Stockholder's Estate or the Management Stockholder's Trust, as the case may be, may be submitted for all Registrable Securities held by the Management Stockholder, the Management Stockholder's Estate and the Management Stockholder's Trust. (c) The maximum number of shares of Stock which will be registered pursuant to a Request will be the lowest of (i) the number of shares of Stock then held by the Management Stockholder (which for purposes of this subparagraph (c) shall include shares held by the Management Stockholder's Estate or a Management Stockholder's Trust), including all shares of Stock which the Management Stockholder is then entitled to acquire under an unexercised Option to the extent then exercisable or (ii) the maximum number of shares of Stock which the Company can register in the Proposed Registration without adverse effect on the offering in the view of the managing underwriters (reduced pro rata with all Other Management Stockholders) as more fully described in subsection (d) of this Section 10 or (iii) the maximum number of shares which the Management Stockholder (pro rata based upon the aggregate number of shares of Common Stock the Management Stockholder and all Other Management Stockholders have requested be registered) and all Other Management Stockholders are permitted to register under the Registration Rights Agreement. (d) If a Proposed Registration involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opinion, the number of shares of Stock requested to be included in the Proposed Registration exceeds the number which can be sold in such offering, so as to be likely to have an adverse effect on the price, timing or distribution of the shares of Stock offered in such Qualified Public Offering as contemplated by the Company, then the Company will include in the Proposed Registration (i) first, 100% of the shares of Stock the Company proposes to sell and (ii) second, to the extent of the number of shares of Stock requested to be included in such registration which, 16 in the opinion of such managing underwriter, can be sold without having the adverse effect referred to above, the number of shares of Stock which the "Holders" (as defined in the Registration Rights Agreement), including, without limitation, the Management Stockholder and Other Management Stockholders have requested to be included in the Proposed Registration, such amount to be allocated pro rata among all requesting Holders on the basis of the relative number of shares of Stock then held by each such Holder (provided that any shares thereby allocated to any such Holder that exceed such Holder's request will be reallocated among the remaining requesting Holders in like manner). (e) Upon delivering a Request the Management Stockholder will, if requested by the Company, execute and deliver a custody agreement and power of attorney in form and substance satisfactory to the Company with respect to the shares of Stock to be registered pursuant to this Section 10 (a "Custody Agreement and Power of Attorney"). The Custody Agreement and Power of Attorney will provide, among other things, that the Management Stockholder will deliver to and deposit in custody with the custodian and attorney-in-fact named therein a certificate or certificates representing such shares of Stock (duly endorsed in blank by the registered owner or owners thereof or accompanied by duly executed stock powers in blank) and irrevocably appoint said custodian and attorney-in-fact as the Management Stockholder's agent and attorney-in-fact with full power and authority to act under the Custody Agreement and Power of Attorney on the Management Stockholder's behalf with respect to the matters specified therein. (f) The Management Stockholder agrees that he or she will execute such other agreements as the Company may reasonably request to further evidence the provisions of this Section 10. 11. Pro Rata Repurchases. Notwithstanding anything to the contrary contained in Sections 5, 6 or 7, if at any time consummation of all purchases and payments to be made by the Company pursuant to this Agreement and the Other Management Stockholders' Agreements would result in an Event, then the Company shall make purchases from, and payments to, the Management Stockholder and Other Management Stockholders pro rata (on the basis of the proportion of the number of shares of Stock and the number of Options each such Management Stockholder and all Other Management Stockholders have elected or are required to sell to the Company) for the maximum number of shares of Stock and shall pay the Option Excess Price for the maximum number of Options permitted without resulting in an Event (the "Maximum Repurchase Amount"). The provisions of Section 5(d) and 6(f) shall apply in their entirety to payments and repurchases with respect to Options and shares of Stock which may not be made due to the limits imposed by the Maximum Repurchase Amount under this Section 11. Until all of such Stock and Options are purchased and paid for by the Company, the Management Stockholder and the Other Management Stockholders whose Stock and Options are not purchased in accordance with this Section 11 shall have priority, on a pro rata basis, over other purchases of Common Stock and Options by the Company pursuant to this Agreement and Other Management Stockholders' Agreements. 17 12. Rights to Negotiate Repurchase Price. Nothing in this Agreement shall be deemed to restrict or prohibit the Company from purchasing shares of Stock or Options from the Management Stockholder, at any time, upon such terms and conditions, and for such price, as may be mutually agreed upon between the Parties, whether or not at the time of such purchase circumstances exist which specifically grant the Company the right to purchase, or the Management Stockholder the right to sell, shares of Stock or the Company has the right to pay, or the Management Stockholder has the right to receive, the Option Excess Price under the terms of this Agreement. 13. Covenant Regarding 83(b) Election. Except as the Company may otherwise agree in writing, the Management Stockholder hereby covenants and agrees that he will make an election provided pursuant to Treasury Regulation 1.83-2 with respect to the Stock, including without limitation, the Stock to be acquired pursuant to Section 1 and the Stock to be acquired upon each exercise of the Management Stockholder's Non-Qualified Options; and Management Stockholder further covenants and agrees that he will furnish the Company with copies of the forms of election the Management Stockholder files within 30 days after the date hereof, and within 30 days after each exercise of Management Stockholder's Non-Qualified Options and with evidence that each such election has been filed in a timely manner. The Company agrees that, for purposes of its reporting and withholding in connection with the election provided for in the preceding sentence, the Management Stockholder will not be deemed to have realized any compensation income with respect to any shares of Retained Stock. 14. Notice of Change of Beneficiary. Immediately prior to any transfer of Stock to a Management Stockholder's Trust, the Management Stockholder shall provide the Company with a copy of the instruments creating the Management Stockholder's Trust and with the identity of the beneficiaries of the Management Stockholder's Trust. The Management Stockholder shall notify the Company immediately prior to any change in the identity of any beneficiary of the Management Stockholder's Trust. 15. Expiration of Certain Provisions. The provisions contained in Sections 4, 5 and 6 of this Agreement and the portion of any other provision of this Agreement which incorporates the provisions of Sections 4, 5 and 6, shall terminate and be of no further force or effect with respect to any shares of Stock sold by the Management Stockholder (i) pursuant to an effective registration statement filed by the Company pursuant to Section 10 hereof or (ii) pursuant to the terms of the Sale Participation Agreement of even date herewith, among the Management Stockholder, and KKR 1996 Fund L.P., NXS Associates, L.P. and KKR Partners II, L.P. The provisions contained in Sections 2(e), 3, 4, 5, 6 and 13 of this Agreement, and the portion of any other provisions of this Agreement which incorporate the provisions of 18 such Sections, shall terminate and be of no further force or effect upon (i) the sale of all or substantially all of the assets of the Company to a person or group that is not an affiliate of Kohlberg Kravis Roberts & Co. L.P. ("KKR"), (ii) an acquisition of voting stock of the Company resulting in more than 50% of the voting stock of the Company being held by a person or group that does not include KKR or any of its affiliates or (iii) the consummation of a merger, reorganization, business combination or liquidation of the Company, but only if such merger, reorganization, business combination or liquidation results in the Partnership or NXS Associates, L.P., or any affiliate or affiliates thereof, together no longer having the power (A) to elect a majority of the Board of Directors of the Company or such other corporation which succeeds to the Company's rights and obligations pursuant to such merger, reorganization, business combination or liquidation, or (B) if the resulting entity of such merger, reorganization, business combination or liquidation is not a corporation, to select the general partner(s) or other persons or entities controlling the operations and business of the resulting entity. Such provisions and the portion of any other provisions of this Agreement which incorporate such provisions shall also terminate and be of no further force and effect if the Management Stockholder's employment is terminated and the Company has not given a Call Notice within 75 days from the date of the applicable Call Event (i) with respect to all the Stock of a Management Stockholder if the Management Stockholder's employment has been terminated as a result of termination by the Management Stockholder with Good Reason or by the Company without Cause, and (ii) with respect to only the Initial Stock of a Management Stockholder if the Management Stockholder's employment has been terminated for any other reason. 16. Recapitalizations, etc. The provisions of this Agreement shall apply, to the full extent set forth herein with respect to the Stock or the Options, to any and all shares of capital stock of the Company or any capital stock, partnership units or any other security evidencing ownership interests in any successor or assign of the Company (whether by merger, consolidation, sale of assets or otherwise) which may be issued in respect of, in exchange for, or substitution of the Stock or the Options, by reason of any stock dividend, split, reverse split, combination, recapitalization, liquidation, reclassification, merger, consolidation or otherwise. 17. Management Stockholder's Employment by the Company. Nothing contained in this Agreement or in any other agreement entered into by the Company and the Management Stockholder contemporaneously with the execution of this Agreement (i) obligates the Company or any subsidiary of the Company to employ the Management Stockholder in any capacity whatsoever or (ii) prohibits or restricts the Company (or any such subsidiary) from terminating the employment, if any, of the Management Stockholder at any time or for any reason whatsoever, with or without Cause, and the Management Stockholder hereby acknowledges and agrees that neither the Company nor any other person has made any representations or promises whatsoever to the Management Stockholder concerning the Management Stockholder's employment or continued employment by the Company or any subsidiary of the Company. 19 18. State Securities Laws. The Company hereby agrees to use its best efforts to comply with all state securities or "blue sky" laws which might be applicable to the sale of the Stock and the issuance of the Options to the Management Stockholder. 19. Binding Effect. The provisions of this Agreement shall be binding upon and accrue to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns. In the case of a transferee permitted under Section 2(a) hereof, such transferee shall be deemed the Management Stockholder hereunder; provided, however, that no transferee (including without limitation, transferees referred to in Section 2(a) hereof) shall derive any rights under this Agreement unless and until such transferee has delivered to the Company a valid undertaking and becomes bound by the terms of this Agreement. 20. Amendment. This Agreement may be amended only by a written instrument signed by the Parties hereto. 21. Closing. Except as otherwise provided herein, the closing of each purchase and sale of shares of Stock and the payment of the Option Excess Price, if any, pursuant to this Agreement shall take place at the principal office of the Company on the tenth business day following delivery of the notice by either Party to the other of its exercise of the right to purchase or sell such Stock hereunder or to cause the payment of the Option Excess Price, if any. 22. Applicable Law. The laws of the state of Delaware (or if the Company reincorporates in another state, of that state) shall govern the interpretation, validity and performance of the terms of this Agreement, regardless of the law that might be applied under principles of conflicts of law. Any suit, action or proceeding against the Management Stockholder, with respect to this Agreement, or any judgment entered by any court in respect of any thereof, may be brought in any court of competent jurisdiction in the State of Delaware (or if the Company reincorporates in another state, in that state) or New York, as the Company may elect in its sole discretion, and the Management Stockholder hereby submits to the non-exclusive jurisdiction of such courts for the purpose of any such suit, action, proceeding or judgment. By the execution and delivery of this Agreement, the Management Stockholder appoints The Corporation Trust Company, at its office in New York, New York or Wilmington, Delaware (or if the Company reincorporates in another state, an office in that state), as the case may be, as his agent upon which process may be served in any such suit, action or proceeding. Service of process upon such agent, together with notice of such service given to the 20 Management Stockholder in the manner provided in Section 25 hereof, shall be deemed in every respect effective service of process upon him in any suit, action or proceeding. Nothing herein shall in any way be deemed to limit the ability of the Company to serve any such writs, process or summonses in any other manner permitted by applicable law or to obtain jurisdiction over the Management Stockholder, in such other jurisdictions and in such manner, as may be permitted by applicable law. The Management Stockholder hereby irrevocably waives any objections which he may now or hereafter have to the laying of the venue of any suit, action or proceeding arising out of or relating to this Agreement brought in any court of competent jurisdiction in the State of Delaware (or if the Company reincorporates in another state, in that state) or New York, and hereby further irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in any inconvenient forum. No suit, action or proceeding against the Company with respect to this Agreement may be brought in any court, domestic or foreign, or before any similar domestic or foreign authority other than in a court of competent jurisdiction in the State of Delaware (or if the Company reincorporates in another state, in that state) or New York, and the Management Stockholder hereby irrevocably waives any right which he may otherwise have had to bring such an action in any other court, domestic or foreign, or before any similar domestic or foreign authority. The Company hereby submits to the jurisdiction of such courts for the purpose of any such suit, action or proceeding. Each Party hereto hereby irrevocably and unconditionally waives trial by jury in any legal action or proceeding in relation to this Agreement and for any counterclaim therein. 23. Assignability of Certain Rights by the Company. The Company shall have the right to assign any or all of its rights or obligations to purchase shares of Stock pursuant to Sections 4, 5 and 6 hereof; provided, however, that the Company shall remain obligated to perform its obligations notwithstanding such assignment in the event that such assignee fails to perform the obligations so assigned to it. 24. Miscellaneous. In this Agreement (i) all references to "dollars" or "$" are to United States dollars and (ii) the word "or" is not exclusive. If any provision of this Agreement shall be declared illegal, void or unenforceable by any court of competent jurisdiction, the other provisions shall not be affected, but shall remain in full force and effect. 25. Notices. All notices and other communications provided for herein shall be in writing and shall be deemed to have been duly given if delivered by hand (whether by overnight courier or otherwise) or sent by registered or certified mail, return receipt requested, postage prepaid, or by overnight delivery or telecopy, to the Party to whom it is directed: 21 (a) If to the Company, to it at the following address: c/o Kohlberg Kravis Roberts & Co. 2800 Sand Hill Road Suite 200 Menlo Park, California 94025 Attn: Michael Michelson with a copy to: Simpson Thacher & Bartlett 425 Lexington Avenue New York, New York 10017-3909 Attn: Charles I. Cogut, Esq. (b) If to the Management Stockholder, to him at the address set forth below under his signature; or at such other address as either party shall have specified by notice in writing to the other. 26. Covenant Not to Compete; Confidential Information. (a) In consideration of the Company entering into this Agreement with the Management Stockholder, the Management Stockholder hereby agrees effective as of the Base Date, for so long as the Management Stockholder is employed by the Company or one of its subsidiaries and for a period of one year thereafter (the "Noncompete Period"), the Management Stockholder shall not, directly or indirectly, engage in the production, sale or distribution of any product produced, sold, distributed or which is in development by the Company or its subsidiaries on the date hereof or during the Noncompete Period anywhere in the world in which the Company or its subsidiaries is doing business other than through the Management Stockholder's employment with the Company or any of its subsidiaries. In the event that the Management Stockholder's employment is terminated by the Management Stockholder for Good Reason or by the Company without Cause, then the Company shall pay the Management Stockholder an amount equal to 50% of such Management Stockholder's base salary on the date of the termination of the Management Stockholder's employment. At the Company's option, the Noncompete Period may be extended for an additional one year period if (i) within nine months of the termination of the Management Stockholder's employment, the Company gives the Management Stockholder notice of such extension and (ii) beginning with the first anniversary of such termination, the Company pays the Management Stockholder an amount equal to 50% of the Management Stockholder's base salary on the date of the termination of his employment. Each amount referred to in the preceding two sentences shall be paid in installments in a manner consistent with the then current salary payment policies of the Company; provided that if at any time the Company 22 elects, in its sole discretion, to waive further compliance by the Management Stockholder with the requirements of this Section 26(a) (upon the Management Stockholder securing alternate employment or otherwise), then the Company shall be relieved of its obligation to pay the unpaid balance, if any, of such amounts which is then owing to the Management Stockholder. For purposes of this Agreement, the phrase "directly or indirectly engage in" shall include any direct or indirect ownership or profit participation interest in such enterprise, whether as an owner, stockholder, partner, joint venturer of otherwise, and shall include any direct or indirect participation in such enterprise as a consultant, licensor of technology or otherwise. (b) The Management Stockholder will not disclose or use at any time any Confidential Information (as defined below) of which the Management Stockholder is or becomes aware, whether or not such information is developed by him, except to the extent that such disclosure or use is directly related to and required by the Management Stockholder's performance of duties, if any, assigned to the Management Stockholder by the Company. As used in this Agreement, the term "Confidential Information" means information that is not generally known to the public and that is used, developed or obtained by the Company or its subsidiaries in connection with its business, including but not limited to (i) products or services, (ii) fees, costs and pricing structures, (iii) designs, (iv) computer software, including operating systems, applications and program listings, (v) flow charts, manuals and documentation, (vi) data bases, (vii) accounting and business methods, (viii) inventions, devices, new developments, methods and processes, whether patentable or unpatentable and whether or not reduced to practice, (ix) customers and clients and customer or client lists, (x) other copyrightable works, (xi) all technology and trade secrets, and (xii) all similar and related information in whatever form. Confidential Information will not include any information that has been published in a form generally available to the public prior to the date the Management Stockholder proposes to disclose or use such information. The Management Stockholder acknowledges and agrees that all copyrights, works, inventions, innovations, improvements, developments, patents, trademarks and all similar or related information which relate to the actual or anticipated business of the Company and its subsidiaries (including its predecessors) and conceived, developed or made by the Management Stockholder while employed by the Company or its subsidiaries belong to the Company. The Management Stockholder will perform all actions reasonably requested by the Company (whether during or after the Noncompete Period) to establish and confirm such ownership at the Company's expense (including without limitation assignments, consents, powers of attorney and other instruments). If the Management Stockholder is bound by any other agreement with the Company regarding the use or disclosure of confidential information, the provisions of this Agreement shall be read in such a way as to further restrict and not to permit any more extensive use or disclosure of confidential information. (c) Notwithstanding clauses (a) and (b) above, if at any time a court holds that the restrictions stated in such clauses (a) and (b) are unreasonable or otherwise unenforceable under circumstances then existing, the parties hereto agree that the maximum period, scope or geographic area determined to be reasonable under such circumstances by such court will be substituted for the stated period, scope or area. Because the Management Stockholder's services are unique and because the Management Stockholder has had access to 23 Confidential Information, the parties hereto agree that money damages will be an inadequate remedy for any breach of this Agreement. In the event a breach or threatened breach of this Agreement, the Company or its successors or assigns may, in addition to other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific performance and/or injunctive relief in order to enforce, or prevent any violations of, the provisions hereof (without the posting of a bond or other security). 24 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written. AMPHENOL CORPORATION By: /s/ Edward C. Wetmore --------------------------------- Name: Edward C. Wetmore Title: Secretary and General Counsel /s/ Edward Jepsen ------------------------------------ Edward Jepsen ------------------------------------ Management Stockholder 14 Gale Road Bloomfield, CT 06002 Address of Management Stockholder SCHEDULE I Targeted Retained Number: 76,923 Actual Retained Number: 99,514 Number of Shares of Retained Stock: 76,923 Number of Shares of Purchase Stock: 0 Issued Stock: N.A. Market Stock: N.A. Aggregate Purchase Price: N.A. EXHIBIT A Form of Non-Qualified Stock Option Agreement EX-10.15 10 MANAGEMENT STOCKHOLDERS AGMT. W/ TIMOTHY COHANE EXHIBIT 10.15 MANAGEMENT STOCKHOLDER'S AGREEMENT This Management Stockholder's Agreement (this "Agreement") is entered into as of May 19, 1997 between Amphenol Corporation, a Delaware Corporation (the "Company"), and Timothy Cohane (the "Management Stockholder") (the Company and the Management Stockholder being hereinafter collectively referred to as the "Parties"). On January 23, 1997, NXS Acquisition Corp., a Delaware corporation ("Newco"), and the Company entered into an Agreement and Plan of Merger (the "Merger Agreement") pursuant to which Newco is to be merged with and into the Company (the "Merger"). Pursuant to the Merger, stockholders of the Company may elect to receive $26.00 per share in cash or to retain the Company's Class A Common Stock, par value $.001 per share (the "Common Stock"), in each case, subject to the effects of proration. In connection with the Merger, certain key employees of the Company have agreed in principle to retain a specified number of shares of Common Stock (such specified number of shares, the "Targeted Retained Number"). This Agreement is one of several other agreements ("Other Management Stockholders' Agreements") which have been, or which in the future will be, entered into between the Company and other individuals who are or will be key employees of the Company or one of its subsidiaries (collectively, the "Other Management Stockholders"). The Company and the Management Stockholder have agreed in principle that (i) if, after giving effect to proration, the actual number of shares of Common Stock retained by such Management Stockholder (the "Actual Retained Number") is higher than the Targeted Retained Number, then such Management Stockholder will be permitted to sell a number of shares equal to such difference, and (ii) if, after giving effect to proration, the Actual Retained Number is less than the Targeted Retained Number, such Management Stockholder will purchase a number of shares equal to such difference. The shares of Common Stock retained by the Management Stockholder after giving effect to any sale contemplated by the preceding clause (i) shall be referred to herein as "Retained Stock." The shares of Common Stock purchased by the Management Stockholder contemplated by the preceding clause (ii), if any, shall be referred to herein as "Purchase Stock." Schedule I hereto sets forth, for the Management Stockholder named above, the Targeted Retained Number, the Actual Retained Number, the number of shares of Retained Stock, the number of shares of Purchase Stock and, if the number of shares of Purchase Stock is greater than zero, whether such shares are to be sold to the Management Stockholder by the Company (any such shares referred to herein as "Issued Stock") or purchased by the Management Stockholder on the New York Stock Exchange (any such shares referred to herein as "Market Stock"). After giving effect to the foregoing, the Management Stockholder shall own, in the aggregate, a total number of shares of Common Stock equal to at least the Targeted Retained Number. In addition, the Company will grant to the Management Stockholder at or as soon as practicable after the effective time of the Merger an option or options to purchase Common Stock ("Options") at an exercise price of $26.00 per share of Common Stock pursuant to the terms of the 1997 2 Option Plan for Key Employees of Amphenol Corporation and Subsidiaries (the "Option Plan") and the "Non-Qualified Stock Option Agreement" attached hereto as Exhibit A. NOW THEREFORE, to implement the foregoing and in consideration of the grant of Options and of the mutual agreements contained herein, the Parties agree as follows: 1. Common Stock; Issuance of Options. (a) If the Actual Retained Number set forth on Schedule I hereto is greater than the Targeted Retained Number, then the Management Stockholder shall, after the Stockholders Meeting (as defined in the Merger Agreement), be permitted to sell a number of shares equal to the difference. Subject to the terms and conditions hereinafter set forth, if the number of shares of Issued Stock set forth on Schedule I hereto is greater than zero, then the Management Stockholder hereby subscribes for and shall purchase, and the Company shall sell to the Management Stockholder, such number of shares of Issued Stock at a purchase price per share of $26.00 (for purposes hereof, such price shall be referred to as the "Base Price") on the date of the Effective Time of the Merger (as defined in the Merger Agreement) (the "Base Date") or, if not on the Base Date, on such later date after the Effective Time of the Merger as may be determined by the Company in consultation with the Management Stockholder (the "Deferred Sale Date"). The Company shall have no obligation to sell any Issued Stock to any person who (i) is a resident or citizen of a state or other jurisdiction in which the sale of the Issued Stock to him or her would constitute a violation of the securities or "blue sky" laws of such jurisdiction or (ii) is not an employee of the Company or any of its subsidiaries on the date hereof. If the number of shares of Market Stock set forth on Schedule I hereto is greater than zero, then the Management Stockholder shall promptly after the date of the Stockholders Meeting purchase such number of shares of Market Stock on The New York Stock Exchange. (b) The aggregate price for the Issued Stock shall be the amount set forth in Schedule I hereto (such amount hereinafter sometimes referred to as the "Aggregate Purchase Price"). The Aggregate Purchase Price shall be paid in the following manner: the Management Stockholder shall deliver to the Company at least three business days prior to the Base Date (or the Deferred Sale Date, if applicable) cash or a certified bank check or checks payable to the order of the Company in the amount of the Aggregate Purchase Price. On the Base Date (or the Deferred Sale Date, if applicable), in consideration of receipt of the Aggregate Purchase Price, the Company will deliver to the Management Stockholder a certificate, registered in the Management Stockholder's name, for the Issued Stock, which shall be subject to the terms and conditions hereinafter set forth. (c) Subject to the terms and conditions hereinafter set forth and upon and as of May 19, 1997 (the "Option Grant Date"), the Company shall issue to the Management Stockholder the Options and the Parties shall execute and deliver to each other copies of the Non-Qualified Stock Option Agreement concurrently with the issuance of the Options. 3 2. Management Stockholder's Representations, Warranties and Agreements. (a) The Management Stockholder agrees and acknowledges that he will not, directly or indirectly, offer, transfer, sell, assign, pledge, hypothecate or otherwise dispose of (any such act being referred to herein as a "transfer") any shares of the Purchase Stock, Retained Stock and, at the time of exercise, the Common Stock issuable upon exercise of the Options (the "Option Stock" and collectively with Retained Stock and Purchase Stock, the "Stock") unless such transfer complies with Section 3 of this Agreement. If the Management Stockholder is an "affiliate" (as defined under Rule 405 of the rules and regulations promulgated under the Act and as interpreted by the Board of Directors of the Company) of the Company (an "Affiliate"), the Management Stockholder also agrees and acknowledges that he will not transfer any shares of the Stock unless (i) the transfer is pursuant to an effective registration statement under the Securities Act of 1933, as amended, and the rules and regulations in effect thereunder (the "Act"), and in compliance with applicable provisions of state securities laws or (ii) (A) counsel for the Management Stockholder (which counsel shall be reasonably acceptable to the Company) shall have furnished the Company with an opinion, satisfactory in form and substance to the Company, that no such registration is required because of the availability of an exemption from registration under the Act and (B) if the Management Stockholder is a citizen or resident of any country other than the United States, or the Management Stockholder desires to effect any transfer in any such country, counsel for the Management Stockholder (which counsel shall be reasonably satisfactory to the Company) shall have furnished the Company with an opinion or other advice reasonably satisfactory in form and substance to the Company to the effect that such transfer will comply with the securities laws of such jurisdiction. Notwithstanding the foregoing, the Company acknowledges and agrees that any of the following transfers are deemed to be in compliance with the Act and this Agreement and no opinion of counsel is required in connection therewith: (x) a transfer made pursuant to Section 4, 5 or 6 hereof, (y) a transfer upon the death of the Management Stockholder to his executors, administrators, testamentary trustees, legatees or beneficiaries (the "Management Stockholder's Estate") or a transfer to the executors, administrators, testamentary trustees, legatees or beneficiaries of a person who has become a holder of Stock in accordance with the terms of this Agreement, provided that it is expressly understood that any such transferee shall be bound by the provisions of this Agreement and (z) a transfer made after the Base Date in compliance with the federal securities laws to a trust or custodianship the beneficiaries of which may include only the Management Stockholder, his spouse or his lineal descendants (a "Management Stockholder's Trust") or a transfer made after the third anniversary of the Base Date to such a trust by a person who has become a holder of Stock in accordance with the terms of this Agreement, provided that such transfer is made expressly subject to this Agreement and that the transferee agrees in writing to be bound by the terms and conditions hereof. (b) The certificate (or certificates) representing the Stock shall bear the following legend: "THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR 4 OTHERWISE DISPOSED OF UNLESS SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION COMPLIES WITH THE PROVISIONS OF THE MANAGEMENT STOCKHOLDER'S AGREEMENT DATED AS OF MAY 19, 1997 BETWEEN AMPHENOL CORPORATION ("THE COMPANY") AND THE MANAGEMENT STOCKHOLDER NAMED ON THE FACE HEREOF (A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY)." (c) The Management Stockholder acknowledges that he has been advised that (i) the Issued Stock, if any, has been registered on Form S-8 under the Act, (ii) a restrictive legend in the form heretofore set forth shall be placed on the certificates representing the Stock and (iii) a notation shall be made in the appropriate records of the Company indicating that the Stock is subject to restrictions on transfer and appropriate stop transfer restrictions will be issued to the Company's transfer agent with respect to the Stock. If the Management Stockholder is an Affiliate, the Management Stockholder also acknowledges that (1) the Stock must be held indefinitely and the Management Stockholder must continue to bear the economic risk of the investment in the Stock unless it is subsequently registered under the Act or an exemption from such registration is available, (2) when and if shares of the Stock may be disposed of without registration in reliance on Rule 144 of the rules and regulations promulgated under the Act, such disposition can be made only in limited amounts in accordance with the terms and conditions of such Rule and (3) if the Rule 144 exemption is not available, public sale without registration will require compliance with some other exemption under the Act. (d) If any shares of the Stock are to be disposed of in accordance with Rule 144 under the Act or otherwise, the Management Stockholder shall promptly notify the Company of such intended disposition and shall deliver to the Company at or prior to the time of such disposition such documentation as the Company may reasonably request in connection with such sale and, in the case of a disposition pursuant to Rule 144, shall deliver to the Company an executed copy of any notice on Form 144 required to be filed with the Securities and Exchange Commission (the "SEC"). (e) The Management Stockholder agrees that, if any shares of the capital stock of the Company are offered to the public pursuant to an effective registration statement under the Act (other than registration of securities issued under an employee plan), the Management Stockholder will not effect any public sale or distribution of any shares of the Stock not covered by such registration statement from the time of the receipt of a notice from the Company that the Company has filed or imminently intends to file such registration statement to, or within 180 days after, the effective date of such registration statement, unless otherwise agreed to in writing by the Company. (f) The Management Stockholder represents and warrants that (i) with respect to Issued Stock, if any, he has received and reviewed the document(s) comprising the Prospectus (the "Prospectus") relating to Issued Stock, if any, and the documents referred to therein, certain of which documents set forth the rights, preferences and restrictions relating to 5 the Stock and (ii) he has been given the opportunity to obtain any additional information or documents and to ask questions and receive answers about such documents, the Company and the business and prospects of the Company which he deems necessary to evaluate the merits and risks related to his investment in the Issued Stock, if any, and to verify the information contained in the Prospectus and the information received as indicated in this Section 2(f)(ii), and he has relied solely on such information. (g) The Management Stockholder further represents and warrants that (i) his financial condition is such that he can afford to bear the economic risk of holding the Issued Stock, if any, for an indefinite period of time and has adequate means for providing for his current needs and personal contingencies, (ii) he can afford to suffer a complete loss of his or her investment in the Issued Stock, if any, (iii) he understands and has taken cognizance of all risk factors related to the purchase of the Issued Stock, if any, including those set forth in the Prospectus referred to above, and (iv) his knowledge and experience in financial and business matters are such that he is capable of evaluating the merits and risks of his purchase of the Issued Stock, if any, as contemplated by this Agreement. 3. Restriction on Transfer. Except for transfers permitted by clauses (x), (y) and (z) of Section 2(a) or a sale of shares of Stock pursuant to an effective registration statement under the Act filed by the Company or pursuant to the Sale Participation Agreement (as defined below), the Management Stockholder agrees that he will not transfer any shares of the Stock at any time prior to the fifth anniversary of the Base Date. No transfer of any such shares in violation hereof shall be made or recorded on the books of the Company and any such transfer shall be void and of no effect. 4. Right of First Refusal. If at any time after the fifth anniversary of the Base Date and prior to a Public Offering (as hereinafter defined) the Management Stockholder receives a bona fide offer to purchase any or all of his shares of Stock (the "Offer") from a third party (the "Offeror") which the Management Stockholder wishes to accept, the Management Stockholder shall cause the Offer to be reduced to writing and shall notify the Company in writing of his wish to accept the Offer. The Management Stockholder's notice shall contain an irrevocable offer to sell such shares of Stock to the Company (in the manner set forth below) at a purchase price equal to the price contained in, and on the same terms and conditions of, the Offer, and shall be accompanied by a true copy of the Offer (which shall identify the Offeror). At any time within 30 days after the date of the receipt by the Company of the Management Stockholder's notice, the Company shall have the right and option to purchase, or to arrange for a third party to purchase, all of the shares of Stock covered by the Offer either (i) at the same price and on the same terms and conditions as the Offer or (ii) if the Offer includes any consideration other than cash, then at the sole option of the Company, at the equivalent all cash price, determined in good faith by the Company's Board of Directors, by delivering a certified bank check or checks in the appropriate amount (and any such non-cash consideration to be paid) to the Management Stockholder at the principal office of the 6 Company against delivery of certificates or other instruments representing the shares of Stock so purchased, appropriately endorsed by the Management Stockholder. If at the end of such 30 day period, the Company has not tendered the purchase price for such shares in the manner set forth above, the Management Stockholder may during the succeeding 30 day period sell not less than all of the shares of Stock covered by the Offer to the Offeror at a price and on terms no less favorable to the Management Stockholder than those contained in the Offer. Promptly after such sale, the Management Stockholder shall notify the Company of the consummation thereof and shall furnish such evidence of the completion and time of completion of such sale and of the terms thereof as may reasonably be requested by the Company. If, at the end of 30 days following the expiration of the 30 day period for the Company to purchase the Stock, the Management Stockholder has not completed the sale of such shares of the Stock as aforesaid, all the restrictions on sale, transfer or assignment contained in this Agreement shall again be in effect with respect to such shares of the Stock. 5. Management Stockholder's Resale of Stock and Options to the Company Upon The Management Stockholder's Death or Disability or in Case of Certain Terminations of Employment. (a) Except as otherwise provided herein, if, prior to the fifth anniversary of the Base Date, (i) the Management Stockholder is still in the employ of the Company or any subsidiary of the Company, or has retired from the Company and its subsidiaries at age 65 or over (or such other age as may be approved by the Board of Directors of the Company) after having been employed by the Company or any subsidiary for at least three years after the Base Date, and (ii) the Management Stockholder either dies or becomes permanently disabled then the Management Stockholder, the Management Stockholder's Estate or a Management Stockholder's Trust, as the case may be, shall have the right, for six months following the date of death or permanent disability, (A) to sell to the Company, and the Company shall be required to purchase, on one occasion, all or any portion of the shares of Stock then held by the Management Stockholder, the Management Stockholder's Estate and/or the Management Stockholder's Trust, as the case may be, at the Section 5(a) Repurchase Price, as determined in accordance with Section 7, and (B) to require the Company to pay to the Management Stockholder or the Management Stockholder's Estate or the Management Stockholder's Trust, as the case may be, an additional amount equal to the Option Excess Price determined on the basis of a Section 5(a) Repurchase Price as provided in Section 8 with respect to the termination of outstanding Options held by the Management Stockholder. (b) Except as otherwise provided herein, if the Management Stockholder's employment with the Company is terminated by the Company without Cause (as hereinafter defined) or by the Management Stockholder for Good Reason (as hereinafter defined) and, at such time, the Common Stock is not admitted to trading on any national securities exchange or the NASDAQ Stock Market, then the Management Stockholder (or in the event of the Management Stockholder's death, the Management Stockholder's Estate) or a Management Stockholder's Trust, as the case may be, shall have the right, for 30 days following the date of termination, to sell to the Company, and the Company shall be required to purchase, on one occasion, all or any portion of the Retained Stock and any Issued Stock (other than any shares acquired upon the exercise of Options) or Market Stock (collectively, the "Initial 7 Stock") at the Section 5(b) Repurchase Price, as determined in accordance with Section 7, provided, that such right shall apply only to the actual shares of Common Stock constituting the Initial Stock pursuant to this Agreement, and shall not include any other shares of Common Stock, however acquired. If the Management Stockholder or the Management Stockholder's Trust, as the case may be, exercises the put rights granted under this Section 5(b), then (i) the Options (whether or not then exercisable) held by the Management Stockholder or the Management Stockholder's Trust, as the case may be, will terminate immediately without payment therefor, (ii) any Option Stock acquired prior to the date of the termination of employment may be retained and (iii) the exercise of any Options after the date of the termination of employment and prior to the exercise of the put rights pursuant to this Section 5(b) shall be deemed to be rescinded, and any Option Stock so acquired shall be delivered to the Company in return for the applicable exercise price paid therefor. (c) The Management Stockholder, the Management Stockholder's Estate and/or the Management Stockholder's Trust, as the case may be, shall send written notice to the Company of its intention to sell shares of Stock in exchange for the payment referred in Sections 5(a) and 5(b) above and to terminate such Options (either (i) in the case of Section 5(a), in exchange for the payment referred to in Section 5(a) or (ii) in the case of Section 5(b), without payment therefor) (the "Redemption Notice"). The completion of the purchase shall take place at the principal office of the Company on the tenth business day after the giving of the Redemption Notice. The applicable Repurchase Price and any payment with respect to the Options as described above shall be paid by delivery to the Management Stockholder, the Management Stockholder's Estate or the Management Stockholder's Trust, as the case may be, of a certified bank check or checks in the appropriate amount payable to the order of the Management Stockholder, the Management Stockholder's Estate or the Management Stockholder's Trust, as the case may be, against delivery of certificates or other instruments representing the Stock so purchased and appropriate documents cancelling the Options so terminated appropriately endorsed or executed by the Management Stockholder, the Management Stockholder's Estate or the Management Stockholder's Trust, or his, her or its duly authorized representative. For purposes of this Agreement, the Management Stockholder shall be deemed to have a "permanent disability" if the Management Stockholder is unable to engage in the activities required by the Management Stockholder's job by reason of any medically determined physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. (d) Notwithstanding anything in Section 5(a) or Section 5(b) to the contrary and subject to Section 11, if there exists and is continuing a default or an event of default on the part of the Company or any subsidiary of the Company under any loan, guarantee or other agreement under which the Company or any subsidiary of the Company has borrowed money or if the repurchase referred to in Section 5(a) or Section 5(b) would result in a default or an event of default on the part of the Company or any subsidiary of the Company under any such agreement or if a repurchase would not be permitted under the Delaware General Corporation Law (the "DGCL") or would otherwise violate the DGCL (or if the Company reincorporates in another state, the business corporation law of such state) (each such occurrence being an "Event"), the Company shall not be obligated to repurchase any of the 8 Stock or the Options from the Management Stockholder, the Management Stockholder's Estate or a Management Stockholder's Trust, as the case may be, until the first business day which is 10 calendar days after all of the foregoing Events have ceased to exist (the "Repurchase Eligibility Date"); provided, however, that (i) the number of shares of Stock subject to repurchase under this Section 5(d) shall be that number of shares of Stock, and (ii) in the case of a repurchase pursuant to Section 5(a), the number of Exercisable Option Shares (as defined in Section 8) for purposes of calculating the Option Excess Price payable under this Section 5(d) shall be the number of Exercisable Option Shares, held by the Management Stockholder, the Management Stockholder's Estate or a Management Stockholder's Trust, as the case may be, at the time of delivery of a Redemption Notice in accordance with Section 5(c) hereof; provided, further, that the Repurchase Calculation Date shall be determined in accordance with Section 7 as of the Repurchase Eligibility Date (unless, in a repurchase pursuant to Section 5(a), the Section 5(a) Repurchase Price would be greater if the Repurchase Calculation Date had been determined as if no Event had occurred in which case, solely for purposes of this proviso, the Repurchase Calculation Date shall be determined as if no Event had occurred). All Options exercisable as of the date of a Redemption Notice, in the case of a repurchase pursuant to Section 5(a), shall continue to be exercisable until the repurchase pursuant to such Redemption Notice, provided that to the extent any Options are exercised after the date of such Redemption Notice, the number of Exercisable Option Shares for purposes of calculating the Option Excess Price shall be reduced accordingly. (e) Notwithstanding any other provision of this Section 5 to the contrary and subject to Section 11, the Management Stockholder, the Management Stockholder's Estate or a Management Stockholder's Trust, as the case may be, shall have the right to withdraw any Redemption Notice which has been pending for 60 or more days and which has remained unsatisfied because of the provisions of Section 5(d). 6. The Company's Option to Repurchase Stock and Options of Management Stockholder. (a) If, on or prior to the fifth anniversary of the Base Date, (i) the Management Stockholder's active employment with the Company (and/or, if applicable, its subsidiaries) is terminated by the Company with Cause or by the Management Stockholder without Good Reason, (ii) the beneficiaries of a Management Stockholder's Trust shall include any person or entity other than the Management Stockholder, his spouse or his lineal descendants, or (iii) the Management Stockholder shall effect a transfer of any of the Stock other than as permitted in this Agreement (each, a "Section 6(a) Call Event"), then the Company shall have the right to purchase all, but not less than all, of the shares of the Stock then held by the Management Stockholder or a Management Stockholder's Trust at the Section 6(a) Repurchase Price determined in accordance with Section 7 hereof. If any Section 6(a) Call Event has occurred, then, whether or not the Company exercises the call rights granted under this Section 6(a), the Options (whether or not then exercisable) held by the Management Stockholder or the Management Stockholder's Trust, as the case may be, will terminate immediately without payment therefor. 9 (b) If, on or prior to the fifth anniversary of the Base Date, the Management Stockholder's employment is terminated as a result of the death or permanent disability of the Management Stockholder or if the Management Stockholder dies or becomes permanently disabled after the retirement of the Management Stockholder from the Company or any of its subsidiaries at age 65 or over (or such other age as may be approved by the Board of Directors of the Company) after having been employed by the Company or any subsidiary for at least three years after the Base Date, (each a "Section 6(b) Call Event"), then the Company shall have the right to purchase all, but not less than all, of the shares of Stock then held by the Management Stockholder, the Management Stockholder's Estate or a Management Stockholder's Trust at the Section 5(a) Repurchase Price. (c) If, on or prior to the fifth anniversary of the Base Date, the Management Stockholder's employment is terminated as a result of a termination by the Management Stockholder with Good Reason or upon the retirement of the Management Stockholder from the Company or any of its subsidiaries at age 65 or over (or such other age as may be approved by the Board of Directors of the Company) after having been employed by the Company or any subsidiary for at least three years after the Base Date, or by the Company without Cause (each a "Section 6(c) Call Event" and together with Section 6(a) Call Events and Section 6(b) Call Events, "Call Events"), then the Company shall have the right to purchase all, but not less than all, of the shares of Stock then held by the Management Stockholder or a Management Stockholder's Trust at the Section 6(c) Repurchase Price. (d) The Company shall have a period of 75 days from the date of a Call Event in which to give notice in writing to the Management Stockholder of the exercise of such election ("Call Notice"). In the event that the Company exercises its right to repurchase shares of Stock pursuant to Section 6(b) or Section 6(c), the Company shall also pay the Management Stockholder an amount equal to the Option Excess Price determined on the basis of the Section 5(a) Repurchase Price or Section 6(c) Repurchase Price, respectively, as provided in Section 8, with respect to the termination of outstanding Options held by the Management Stockholder. (e) The completion of the purchases pursuant to the foregoing shall take place at the principal office of the Company on the tenth business day after the giving of notice of the exercise of the option to purchase. The applicable Repurchase Price and any payment with respect to the Options as described in Sections 6(d) above shall be paid by delivery to the Management Stockholder, the Management Stockholder's Estate or a Management Stockholder's Trust, as the case may be, of a certified bank check or checks in the appropriate amount payable to the order of the Management Stockholder, the Management Stockholder's Estate or a Management Stockholder's Trust, as the case may be, against delivery of certificates or other instruments representing the Stock so purchased and appropriate documents cancelling the Options so terminated, appropriately endorsed or executed by the Management Stockholder, the Management Stockholder's Estate or a Management Stockholders Trust or his, her or its authorized representative. (f) Notwithstanding any other provision of this Section 6 to the contrary and subject to Section 11, if there exists and is continuing any Event, the Company shall 10 delay the repurchase of any of the Stock or the Options (pursuant to a Call Notice timely given in accordance with Section 6(d) hereof) from the Management Stockholder, the Management Stockholder's Estate or a Management Stockholder's Trust, as the case may be, until the Repurchase Eligibility Date; provided, however, that (i) the number of shares of Stock subject to repurchase under this Section 6(f) shall be that number of shares of Stock and (ii) in the case of a repurchase pursuant to Section 6(b) or Section 6(c), the number of Exercisable Option Shares for purposes of calculating the Option Excess Price payable under this Section 6(f) shall be the number of Exercisable Option Shares held by the Management Stockholder, the Management Stockholder's Estate or a Management Stockholder's Trust, as the case may be, at the time of delivery of a Call Notice in accordance with Section 6(d) hereof; and provided, further, that the Repurchase Calculation Date shall be determined in accordance with Section 7 based on the Repurchase Eligibility Date (unless (x) in the case of a Section 6(b) Call Event or a Section 6(c) Call Event, the applicable Repurchase Price would be greater if the Repurchase Calculation Date had been determined as if no Event had occurred, in which case the Repurchase Calculation Date shall be determined as if no Event had occurred, and (y) in the case of a Section 6(a) Call Event, the applicable Repurchase Price would be less if the Repurchase Calculation Date had been determined as if no Event had occurred, in which case the Repurchase Calculation Date shall be determined as if no Event had occurred). All Options exercisable as of the date of a Call Notice, in the case of a repurchase pursuant to Section 6(b) or Section 6(c), shall continue to be exercisable until the repurchase pursuant to such Call Notice, provided that to the extent that any Options are exercised after the date of such Call Notice, the number of Exercisable Option Shares for purposes of calculating the Option Excess Price shall be reduced accordingly. 7. Determination of Repurchase Price. (a) The Section 5(a) Repurchase Price, Section 5(b) Repurchase Price, Section 6(a) Repurchase Price and the Section 6(c) Repurchase Price are hereinafter collectively referred to as the "Repurchase Price." The Repurchase Price shall be calculated on the basis of the unaudited financial statements of the Company or the Market Price Per Share (as defined in Section 7(j)) as of the last day of the month preceding the later of (i) the month in which the event giving rise to the repurchase occurs and (ii) the month in which the Repurchase Eligibility Date occurs (hereinafter called the "Repurchase Calculation Date"). The event giving rise to the repurchase shall be the death, permanent disability, retirement or termination of employment, as the case may be, of the Management Stockholder, not the giving of any notice required pursuant to Section 5 or 6. (b) The Section 5(a) Repurchase Price shall be a per share Repurchase Price equal to the Base Price, provided that if the Book Value Per Share (as defined in Section 7(h)) (or, after a Public Offering, the Market Price Per Share) as of the Repurchase Calculation Date is greater than the Base Price, then the Section 5(a) Repurchase Price shall be equal to the Base Price plus the amount by which the Book Value Per Share (or, after a Public Offering, the Market Price Per Share) as of the Repurchase Calculation Date exceeds the Base Price. 11 (c) The Section 5(b) Repurchase Price shall be a per share Repurchase Price equal to the Base Price, provided that if the Book Value Per Share as of the Repurchase Calculation Date is less than the Base Price, then the Section 5(b) Repurchase Price shall be equal to the Base Price less the amount by which the Base Price exceeds the Book Value Per Share as of the Repurchase Calculation Date (but shall not be less than zero). (d) The Section 6(a) Repurchase Price shall be a per share Repurchase Price equal to the least of (i) after a Public Offering, the Market Price Per Share, (ii) if the Book Value Per Share as of the Repurchase Calculation Date is less than the Base Price, the Base Price less the amount by which the Base Price exceeds Book Value Per Share as of the Repurchase Calculation Date (but shall not be less than zero), and (iii) if the Book Value Per Share as of the Repurchase Calculation Date exceeds the Base Price, the Base Price plus (x) the Percentage (as defined below) multiplied by (y) the amount by which the Book Value Per Share as of the Repurchase Calculation Date exceeds the Base Price. (e) The Section 6(c) Repurchase Price shall be a per share Repurchase Price equal to the Base Price, provided (x) if the Book Value Per Share (or, after a Public Offering, the Market Price Per Share) as of the Repurchase Calculation Date is less than the Base Price, then the Section 6(c) Repurchase Price shall equal the Base Price less the amount by which the Base Price exceeds Book Value Per Share (or, after a Public Offering, the Market Price Per Share) as of the Repurchase Calculation Date, and (y) if the Book Value Per Share (or, after a Public Offering, the Market Price Per Share) as of the Repurchase Calculation Date is greater than the Base Price, then the Section 6(c) Repurchase Price shall equal the Base Price plus the amount by which the Book Value Per Share (or, after a Public Offering, the Market Price Per Share) as of the Repurchase Calculation Date exceeds the Base Price, as the case may be. (f) For purposes of this Agreement the following definitions shall apply: "Cause" shall mean (i) the Management Stockholder's willful and continued failure to perform Management Stockholder's duties with respect to the Company or its subsidiaries which continues beyond ten days after a written demand for substantial performance is delivered to Management Stockholder by the Company or (ii) misconduct by Management Stockholder involving (x) dishonesty or breach of trust in connection with Management Stockholder's employment or (y) conduct which would be a reasonable basis for an indictment of Management Stockholder for a felony or for a misdemeanor involving moral turpitude or (z) which results in a demonstrable injury to the Company; and "Good Reason" shall mean (i) a reduction in Management Stockholder's base salary (other than a broad based salary reduction program affecting many members of management), (ii) a substantial reduction in Management Stockholder's duties and responsibilities other than as approved by the Chief Executive Officer of the Company as of the date of this Agreement, (iii) the elimination or reduction of the Management Stockholder's eligibility to participate in the Company's benefit programs that is inconsistent with the eligibility of similarly situated employees of the Company to participate therein, or (iv) a transfer of the Management Stockholder's primary workplace by more than fifty (50) miles from the workplace as of the date hereof. 12 (g) For purposes of this Agreement, the "Percentage" shall be determined as follows: Repurchase Calculation Date Percentage - --------------------------- ---------- Base Date through and including the first anniversary of the 0% Base Date After the first anniversary of the Base Date through and 20% including the second anniversary of the Base Date After the second anniversary of the Base Date through and 40% including the third anniversary of the Base Date After the third anniversary of the Base Date through and 60% including the fourth anniversary of the Base Date After the fourth anniversary of the Base Date through and 80% including the fifth anniversary of the Base Date After the fifth anniversary of the Base Date 100% (h) As used herein, "Book Value Per Share" shall be the quotient of (a) (i) $455,440,830 plus (ii) the aggregate net income of the Company from and after the date of the Effective Time of the Merger (as decreased by any net losses from and after the date of the Effective Time of the Merger) excluding any one time costs and expenses charged to income associated with the Merger and any related transactions plus (iii) the aggregate dollar amount contributed to (or credited to common stockholders' equity of) the Company after the date of the Effective Time of the Merger as equity of the Company (including consideration to be received upon exercise of the Options and other stock equivalents) plus (iv) to the extent reflected as deductions to Book Value Per Share in clause (ii) above, or minus, to the extent reflected as additions to Book Value Per Share in clause (ii) above, unusual or other items recognized by the Company (including, without limitation, one time or accelerated write-offs of good will), in each case, if and to the extent determined in the sole discretion of the Board of Directors of the Company, minus, (v) the aggregate dollar amount of any dividends paid by the Company after the date of the Effective Time of the Merger, divided by (b) the sum of the number of shares of Common Stock then outstanding and the number of shares of Common Stock issuable upon the exercise of all outstanding stock options and other rights to acquire Common Stock and the conversion of all securities convertible into shares of Common Stock. The items referred to in the calculations set forth in clauses (a)(ii), (a)(iii), (a)(iv) and (a)(v) of the immediately preceding sentence shall be determined in accordance with generally accepted accounting principles applied on a basis consistent with any prior periods as reflected in the consolidated financial statements of the Company. (i) As used herein the term "Public Offering" shall mean the sale of shares of Common Stock to the public subsequent to the date hereof pursuant to a registration statement under the Act which has been declared effective by the SEC (other than a registration statement on Form S-8 or any other similar form) which results in an active 13 trading market in 35% or more of the Common Stock. A "Qualified Public Offering" shall mean a Public Offering pursuant to an effective registration statement relating to the sale of shares of the Common Stock held by KKR 1996 Fund L.P., a Delaware limited partnership (the "Partnership") or NXS Associates, L.P., a Delaware limited partnership, or their respective affiliates; provided, however, that a "Qualified Public Offering" shall be deemed to have occurred if there has been any Public Offering and there exists an active trading market in 40% or more of the Common Stock. (j) As used herein, the term "Market Price Per Share" shall mean the price per share equal to the average of the last sale price of the Common Stock on the Repurchase Calculation Date on each exchange on which the Common Stock may at the time be listed or, if there shall have been no sales on any of such exchanges on the Repurchase Calculation Date, the average of the closing bid and asked prices on each such exchange at the end of the Repurchase Calculation Date or if there is no such bid and asked price on the Repurchase Calculation Date on the next preceding date when such bid and asked price occurred or, if the Common Stock shall not be so listed, the average of the closing sales prices as reported by NASDAQ at the end of the Repurchase Calculation Date in the over-the-counter market. If the Common Stock is not so listed or reported by NASDAQ, then the Market Price Per Share shall be the Book Value Per Share. (k) In determining the Repurchase Price, appropriate adjustments shall be made for any stock dividends, splits, combinations, recapitalizations or any other adjustment in the number of outstanding shares of Common Stock in order to maintain, as nearly as practicable, the intended operation of the provisions of this Section 7. 8. Stock Issued to Management Stockholder Upon Exercise of Stock Options; Termination of Options. (a) The Company may from time to time grant to the Management Stockholder, in addition to the Options, options under the Option Plan to purchase shares of Common Stock at the Base Price or at a different option exercise price. The term "Issued Stock" as used in this Agreement shall include all shares of Common Stock of the Company purchased by the Management Stockholder pursuant to this Agreement and issued to the Management Stockholder by the Company upon exercise of the Options and of any other stock options held by the Management Stockholder. (b) In the case of an exercise of the put or call rights described above in Sections 5(b) or 6(a), respectively, all outstanding Options of the Management Stockholder (whether or not then exercisable) will be automatically terminated without payment therefor. In the case of an exercise of the put rights described above in Section 5(a) or of the call rights described above in Sections 6(b) or 6(c), all outstanding Options granted to the Management Stockholder under the Option Plan or otherwise, whether or not then exercisable, will be automatically terminated upon the payment by the Company to the Management Stockholder, pursuant to the provisions of Sections 5(a) or 6(d) of this Agreement, as the case may be, of an amount equal to the Option Excess Price. If the Option Excess Price is zero or a negative number, all outstanding stock options granted to the Management Stockholder 14 under the Option Plan or otherwise, whether or not then exercisable, shall be automatically terminated upon the repurchase of Stock as provided in Sections 5(a), 6(b) or 6(c). With respect to each Option, the Option Excess Price is the excess, if any, of the Section 5(a) Repurchase Price or the Section 6(c) Repurchase Price, depending on which Repurchase Price is being used to repurchase the remainder of the Stock, over the Option Exercise Price (as defined in the Non-Qualified Option Agreement), multiplied by the number of Exercisable Option Shares thereunder. For purposes hereof, "Exercisable Option Shares" shall mean the shares of Common Stock which, at the time of determination of the Option Excess Price could be purchased by the Management Stockholder upon exercise of his or her outstanding options. The Company will use its reasonable best efforts to cause a Registration Statement on Form S-8 covering shares of Issued Stock contemplated hereby to be filed within six months of the date hereof. 9. The Company's Representations and Warranties. (a) The Company represents and warrants to the Management Stockholder that (i) this Agreement has been duly authorized, executed and delivered by the Company and (ii) the Issued Stock, when issued and delivered in accordance with the terms hereof, will be duly and validly issued, fully paid and nonassessable. (b) The Company will file the reports required to be filed by it under the Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder, to the extent required from time to time to enable the Management Stockholder to sell shares of Stock without registration under the Act within the limitations of the exemptions provided by (A) Rule 144 under the Act, as such Rule may be amended from time to time, or (B) any similar rule or regulation hereafter adopted by the SEC. Notwithstanding anything contained in this Section 9(b), the Company may de-register under Section 12 of the Exchange Act if it is then permitted to do so pursuant to the Exchange Act and the rules and regulations thereunder and, in such circumstances, shall not be required hereby to file any reports which may be necessary in order for Rule 144 or any similar rule or regulation under the Act to be available. Nothing in this Section 9(b) shall be deemed to limit in any manner the restrictions on sales of Stock contained in this Agreement. 10. "Piggyback" Registration Rights. (a) Effective upon the date of this Agreement, until the later of (i) the first occurrence of a Qualified Public Offering (as defined in Section 7(i) above) or (ii) the fifth anniversary of the Base Date, the Management Stockholder hereby agrees to be bound by all of the terms, conditions and obligations of the Registration Rights Agreement dated as of May 19, among the Company (as successor by Merger to Newco), KKR 1996 Fund L.P., NXS Associates, L.P. KKR Partners II, L.P. and NXS I, L.L.C. (the "Registration Rights Agreement") and, in the case of a Qualified Public Offering and subject to the limitations set forth in this Section 10, shall have all of the rights and privileges of the Registration Rights Agreement, in each case as if the Management Stockholder were an original party (other than the Company) thereto; provided, however, that the Management Stockholder shall not have any rights to request registration under Section 3 of the Registration Rights Agreement; and 15 provided further, that the Management Stockholder shall not be bound by any amendments to the Registration Rights Agreement unless the Management Stockholder consents thereto. Notwithstanding anything to the contrary contained in the Registration Rights Agreement, the Management Stockholder's rights and obligations under the Registration Rights Agreement shall be subject to the limitations and additional obligations set forth in this Section 10. All Stock purchased or held by the Management Stockholder, the Management Stockholder's Estate or the Management Stockholder's Trust pursuant to this Agreement shall be deemed to be Registrable Securities as defined in the Registration Rights Agreement. (b) The Company will promptly notify the Management Stockholder in writing (a "Notice") of any proposed registration (a "Proposed Registration") in connection with a Qualified Public Offering. If within 15 days of the receipt by the Management Stockholder of such Notice, the Company receives from the Management Stockholder, the Management Stockholder's Estate or the Management Stockholder's Trust a written request (a "Request") to register shares of Stock held by the Management Stockholder, the Management Stockholder's Estate or the Management Stockholder's Trust (which Request will be irrevocable unless otherwise mutually agreed to in writing by the Management Stockholder and the Company), shares of Stock will be so registered as provided in this Section 10; provided, however, that for each such registration statement only one Request, which shall be executed by the Management Stockholder, the Management Stockholder's Estate or the Management Stockholder's Trust, as the case may be, may be submitted for all Registrable Securities held by the Management Stockholder, the Management Stockholder's Estate and the Management Stockholder's Trust. (c) The maximum number of shares of Stock which will be registered pursuant to a Request will be the lowest of (i) the number of shares of Stock then held by the Management Stockholder (which for purposes of this subparagraph (c) shall include shares held by the Management Stockholder's Estate or a Management Stockholder's Trust), including all shares of Stock which the Management Stockholder is then entitled to acquire under an unexercised Option to the extent then exercisable or (ii) the maximum number of shares of Stock which the Company can register in the Proposed Registration without adverse effect on the offering in the view of the managing underwriters (reduced pro rata with all Other Management Stockholders) as more fully described in subsection (d) of this Section 10 or (iii) the maximum number of shares which the Management Stockholder (pro rata based upon the aggregate number of shares of Common Stock the Management Stockholder and all Other Management Stockholders have requested be registered) and all Other Management Stockholders are permitted to register under the Registration Rights Agreement. (d) If a Proposed Registration involves an underwritten offering and the managing underwriter advises the Company in writing that, in its opinion, the number of shares of Stock requested to be included in the Proposed Registration exceeds the number which can be sold in such offering, so as to be likely to have an adverse effect on the price, timing or distribution of the shares of Stock offered in such Qualified Public Offering as contemplated by the Company, then the Company will include in the Proposed Registration (i) first, 100% of the shares of Stock the Company proposes to sell and (ii) second, to the extent of the number of shares of Stock requested to be included in such registration which, 16 in the opinion of such managing underwriter, can be sold without having the adverse effect referred to above, the number of shares of Stock which the "Holders" (as defined in the Registration Rights Agreement), including, without limitation, the Management Stockholder and Other Management Stockholders have requested to be included in the Proposed Registration, such amount to be allocated pro rata among all requesting Holders on the basis of the relative number of shares of Stock then held by each such Holder (provided that any shares thereby allocated to any such Holder that exceed such Holder's request will be reallocated among the remaining requesting Holders in like manner). (e) Upon delivering a Request the Management Stockholder will, if requested by the Company, execute and deliver a custody agreement and power of attorney in form and substance satisfactory to the Company with respect to the shares of Stock to be registered pursuant to this Section 10 (a "Custody Agreement and Power of Attorney"). The Custody Agreement and Power of Attorney will provide, among other things, that the Management Stockholder will deliver to and deposit in custody with the custodian and attorney-in-fact named therein a certificate or certificates representing such shares of Stock (duly endorsed in blank by the registered owner or owners thereof or accompanied by duly executed stock powers in blank) and irrevocably appoint said custodian and attorney-in-fact as the Management Stockholder's agent and attorney-in-fact with full power and authority to act under the Custody Agreement and Power of Attorney on the Management Stockholder's behalf with respect to the matters specified therein. (f) The Management Stockholder agrees that he or she will execute such other agreements as the Company may reasonably request to further evidence the provisions of this Section 10. 11. Pro Rata Repurchases. Notwithstanding anything to the contrary contained in Sections 5, 6 or 7, if at any time consummation of all purchases and payments to be made by the Company pursuant to this Agreement and the Other Management Stockholders' Agreements would result in an Event, then the Company shall make purchases from, and payments to, the Management Stockholder and Other Management Stockholders pro rata (on the basis of the proportion of the number of shares of Stock and the number of Options each such Management Stockholder and all Other Management Stockholders have elected or are required to sell to the Company) for the maximum number of shares of Stock and shall pay the Option Excess Price for the maximum number of Options permitted without resulting in an Event (the "Maximum Repurchase Amount"). The provisions of Section 5(d) and 6(f) shall apply in their entirety to payments and repurchases with respect to Options and shares of Stock which may not be made due to the limits imposed by the Maximum Repurchase Amount under this Section 11. Until all of such Stock and Options are purchased and paid for by the Company, the Management Stockholder and the Other Management Stockholders whose Stock and Options are not purchased in accordance with this Section 11 shall have priority, on a pro rata basis, over other purchases of Common Stock and Options by the Company pursuant to this Agreement and Other Management Stockholders' Agreements. 17 12. Rights to Negotiate Repurchase Price. Nothing in this Agreement shall be deemed to restrict or prohibit the Company from purchasing shares of Stock or Options from the Management Stockholder, at any time, upon such terms and conditions, and for such price, as may be mutually agreed upon between the Parties, whether or not at the time of such purchase circumstances exist which specifically grant the Company the right to purchase, or the Management Stockholder the right to sell, shares of Stock or the Company has the right to pay, or the Management Stockholder has the right to receive, the Option Excess Price under the terms of this Agreement. 13. Covenant Regarding 83(b) Election. Except as the Company may otherwise agree in writing, the Management Stockholder hereby covenants and agrees that he will make an election provided pursuant to Treasury Regulation 1.83-2 with respect to the Stock, including without limitation, the Stock to be acquired pursuant to Section 1 and the Stock to be acquired upon each exercise of the Management Stockholder's Non-Qualified Options; and Management Stockholder further covenants and agrees that he will furnish the Company with copies of the forms of election the Management Stockholder files within 30 days after the date hereof, and within 30 days after each exercise of Management Stockholder's Non-Qualified Options and with evidence that each such election has been filed in a timely manner. The Company agrees that, for purposes of its reporting and withholding in connection with the election provided for in the preceding sentence, the Management Stockholder will not be deemed to have realized any compensation income with respect to any shares of Retained Stock. 14. Notice of Change of Beneficiary. Immediately prior to any transfer of Stock to a Management Stockholder's Trust, the Management Stockholder shall provide the Company with a copy of the instruments creating the Management Stockholder's Trust and with the identity of the beneficiaries of the Management Stockholder's Trust. The Management Stockholder shall notify the Company immediately prior to any change in the identity of any beneficiary of the Management Stockholder's Trust. 15. Expiration of Certain Provisions. The provisions contained in Sections 4, 5 and 6 of this Agreement and the portion of any other provision of this Agreement which incorporates the provisions of Sections 4, 5 and 6, shall terminate and be of no further force or effect with respect to any shares of Stock sold by the Management Stockholder (i) pursuant to an effective registration statement filed by the Company pursuant to Section 10 hereof or (ii) pursuant to the terms of the Sale Participation Agreement of even date herewith, among the Management Stockholder, and KKR 1996 Fund L.P., NXS Associates, L.P. and KKR Partners II, L.P. The provisions contained in Sections 2(e), 3, 4, 5, 6 and 13 of this Agreement, and the portion of any other provisions of this Agreement which incorporate the provisions of 18 such Sections, shall terminate and be of no further force or effect upon (i) the sale of all or substantially all of the assets of the Company to a person or group that is not an affiliate of Kohlberg Kravis Roberts & Co. L.P. ("KKR"), (ii) an acquisition of voting stock of the Company resulting in more than 50% of the voting stock of the Company being held by a person or group that does not include KKR or any of its affiliates or (iii) the consummation of a merger, reorganization, business combination or liquidation of the Company, but only if such merger, reorganization, business combination or liquidation results in the Partnership or NXS Associates, L.P., or any affiliate or affiliates thereof, together no longer having the power (A) to elect a majority of the Board of Directors of the Company or such other corporation which succeeds to the Company's rights and obligations pursuant to such merger, reorganization, business combination or liquidation, or (B) if the resulting entity of such merger, reorganization, business combination or liquidation is not a corporation, to select the general partner(s) or other persons or entities controlling the operations and business of the resulting entity. Such provisions and the portion of any other provisions of this Agreement which incorporate such provisions shall also terminate and be of no further force and effect if the Management Stockholder's employment is terminated and the Company has not given a Call Notice within 75 days from the date of the applicable Call Event (i) with respect to all the Stock of a Management Stockholder if the Management Stockholder's employment has been terminated as a result of termination by the Management Stockholder with Good Reason or by the Company without Cause, and (ii) with respect to only the Initial Stock of a Management Stockholder if the Management Stockholder's employment has been terminated for any other reason. 16. Recapitalizations, etc. The provisions of this Agreement shall apply, to the full extent set forth herein with respect to the Stock or the Options, to any and all shares of capital stock of the Company or any capital stock, partnership units or any other security evidencing ownership interests in any successor or assign of the Company (whether by merger, consolidation, sale of assets or otherwise) which may be issued in respect of, in exchange for, or substitution of the Stock or the Options, by reason of any stock dividend, split, reverse split, combination, recapitalization, liquidation, reclassification, merger, consolidation or otherwise. 17. Management Stockholder's Employment by the Company. Nothing contained in this Agreement or in any other agreement entered into by the Company and the Management Stockholder contemporaneously with the execution of this Agreement (i) obligates the Company or any subsidiary of the Company to employ the Management Stockholder in any capacity whatsoever or (ii) prohibits or restricts the Company (or any such subsidiary) from terminating the employment, if any, of the Management Stockholder at any time or for any reason whatsoever, with or without Cause, and the Management Stockholder hereby acknowledges and agrees that neither the Company nor any other person has made any representations or promises whatsoever to the Management Stockholder concerning the Management Stockholder's employment or continued employment by the Company or any subsidiary of the Company. 19 18. State Securities Laws. The Company hereby agrees to use its best efforts to comply with all state securities or "blue sky" laws which might be applicable to the sale of the Stock and the issuance of the Options to the Management Stockholder. 19. Binding Effect. The provisions of this Agreement shall be binding upon and accrue to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns. In the case of a transferee permitted under Section 2(a) hereof, such transferee shall be deemed the Management Stockholder hereunder; provided, however, that no transferee (including without limitation, transferees referred to in Section 2(a) hereof) shall derive any rights under this Agreement unless and until such transferee has delivered to the Company a valid undertaking and becomes bound by the terms of this Agreement. 20. Amendment. This Agreement may be amended only by a written instrument signed by the Parties hereto. 21. Closing. Except as otherwise provided herein, the closing of each purchase and sale of shares of Stock and the payment of the Option Excess Price, if any, pursuant to this Agreement shall take place at the principal office of the Company on the tenth business day following delivery of the notice by either Party to the other of its exercise of the right to purchase or sell such Stock hereunder or to cause the payment of the Option Excess Price, if any. 22. Applicable Law. The laws of the state of Delaware (or if the Company reincorporates in another state, of that state) shall govern the interpretation, validity and performance of the terms of this Agreement, regardless of the law that might be applied under principles of conflicts of law. Any suit, action or proceeding against the Management Stockholder, with respect to this Agreement, or any judgment entered by any court in respect of any thereof, may be brought in any court of competent jurisdiction in the State of Delaware (or if the Company reincorporates in another state, in that state) or New York, as the Company may elect in its sole discretion, and the Management Stockholder hereby submits to the non-exclusive jurisdiction of such courts for the purpose of any such suit, action, proceeding or judgment. By the execution and delivery of this Agreement, the Management Stockholder appoints The Corporation Trust Company, at its office in New York, New York or Wilmington, Delaware (or if the Company reincorporates in another state, an office in that state), as the case may be, as his agent upon which process may be served in any such suit, action or proceeding. Service of process upon such agent, together with notice of such service given to the 20 Management Stockholder in the manner provided in Section 25 hereof, shall be deemed in every respect effective service of process upon him in any suit, action or proceeding. Nothing herein shall in any way be deemed to limit the ability of the Company to serve any such writs, process or summonses in any other manner permitted by applicable law or to obtain jurisdiction over the Management Stockholder, in such other jurisdictions and in such manner, as may be permitted by applicable law. The Management Stockholder hereby irrevocably waives any objections which he may now or hereafter have to the laying of the venue of any suit, action or proceeding arising out of or relating to this Agreement brought in any court of competent jurisdiction in the State of Delaware (or if the Company reincorporates in another state, in that state) or New York, and hereby further irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in any inconvenient forum. No suit, action or proceeding against the Company with respect to this Agreement may be brought in any court, domestic or foreign, or before any similar domestic or foreign authority other than in a court of competent jurisdiction in the State of Delaware (or if the Company reincorporates in another state, in that state) or New York, and the Management Stockholder hereby irrevocably waives any right which he may otherwise have had to bring such an action in any other court, domestic or foreign, or before any similar domestic or foreign authority. The Company hereby submits to the jurisdiction of such courts for the purpose of any such suit, action or proceeding. Each Party hereto hereby irrevocably and unconditionally waives trial by jury in any legal action or proceeding in relation to this Agreement and for any counterclaim therein. 23. Assignability of Certain Rights by the Company. The Company shall have the right to assign any or all of its rights or obligations to purchase shares of Stock pursuant to Sections 4, 5 and 6 hereof; provided, however, that the Company shall remain obligated to perform its obligations notwithstanding such assignment in the event that such assignee fails to perform the obligations so assigned to it. 24. Miscellaneous. In this Agreement (i) all references to "dollars" or "$" are to United States dollars and (ii) the word "or" is not exclusive. If any provision of this Agreement shall be declared illegal, void or unenforceable by any court of competent jurisdiction, the other provisions shall not be affected, but shall remain in full force and effect. 25. Notices. All notices and other communications provided for herein shall be in writing and shall be deemed to have been duly given if delivered by hand (whether by overnight courier or otherwise) or sent by registered or certified mail, return receipt requested, postage prepaid, or by overnight delivery or telecopy, to the Party to whom it is directed: 21 (a) If to the Company, to it at the following address: c/o Kohlberg Kravis Roberts & Co. 2800 Sand Hill Road Suite 200 Menlo Park, California 94025 Attn: Michael Michelson with a copy to: Simpson Thacher & Bartlett 425 Lexington Avenue New York, New York 10017-3909 Attn: Charles I. Cogut, Esq. (b) If to the Management Stockholder, to him at the address set forth below under his signature; or at such other address as either party shall have specified by notice in writing to the other. 26. Covenant Not to Compete; Confidential Information. (a) In consideration of the Company entering into this Agreement with the Management Stockholder, the Management Stockholder hereby agrees effective as of the Base Date, for so long as the Management Stockholder is employed by the Company or one of its subsidiaries and for a period of one year thereafter (the "Noncompete Period"), the Management Stockholder shall not, directly or indirectly, engage in the production, sale or distribution of any product produced, sold, distributed or which is in development by the Company or its subsidiaries on the date hereof or during the Noncompete Period anywhere in the world in which the Company or its subsidiaries is doing business other than through the Management Stockholder's employment with the Company or any of its subsidiaries. In the event that the Management Stockholder's employment is terminated by the Management Stockholder for Good Reason or by the Company without Cause, then the Company shall pay the Management Stockholder an amount equal to 50% of such Management Stockholder's base salary on the date of the termination of the Management Stockholder's employment. At the Company's option, the Noncompete Period may be extended for an additional one year period if (i) within nine months of the termination of the Management Stockholder's employment, the Company gives the Management Stockholder notice of such extension and (ii) beginning with the first anniversary of such termination, the Company pays the Management Stockholder an amount equal to 50% of the Management Stockholder's base salary on the date of the termination of his employment. Each amount referred to in the preceding two sentences shall be paid in installments in a manner consistent with the then current salary payment policies of the Company; provided that if at any time the Company 22 elects, in its sole discretion, to waive further compliance by the Management Stockholder with the requirements of this Section 26(a) (upon the Management Stockholder securing alternate employment or otherwise), then the Company shall be relieved of its obligation to pay the unpaid balance, if any, of such amounts which is then owing to the Management Stockholder. For purposes of this Agreement, the phrase "directly or indirectly engage in" shall include any direct or indirect ownership or profit participation interest in such enterprise, whether as an owner, stockholder, partner, joint venturer of otherwise, and shall include any direct or indirect participation in such enterprise as a consultant, licensor of technology or otherwise. (b) The Management Stockholder will not disclose or use at any time any Confidential Information (as defined below) of which the Management Stockholder is or becomes aware, whether or not such information is developed by him, except to the extent that such disclosure or use is directly related to and required by the Management Stockholder's performance of duties, if any, assigned to the Management Stockholder by the Company. As used in this Agreement, the term "Confidential Information" means information that is not generally known to the public and that is used, developed or obtained by the Company or its subsidiaries in connection with its business, including but not limited to (i) products or services, (ii) fees, costs and pricing structures, (iii) designs, (iv) computer software, including operating systems, applications and program listings, (v) flow charts, manuals and documentation, (vi) data bases, (vii) accounting and business methods, (viii) inventions, devices, new developments, methods and processes, whether patentable or unpatentable and whether or not reduced to practice, (ix) customers and clients and customer or client lists, (x) other copyrightable works, (xi) all technology and trade secrets, and (xii) all similar and related information in whatever form. Confidential Information will not include any information that has been published in a form generally available to the public prior to the date the Management Stockholder proposes to disclose or use such information. The Management Stockholder acknowledges and agrees that all copyrights, works, inventions, innovations, improvements, developments, patents, trademarks and all similar or related information which relate to the actual or anticipated business of the Company and its subsidiaries (including its predecessors) and conceived, developed or made by the Management Stockholder while employed by the Company or its subsidiaries belong to the Company. The Management Stockholder will perform all actions reasonably requested by the Company (whether during or after the Noncompete Period) to establish and confirm such ownership at the Company's expense (including without limitation assignments, consents, powers of attorney and other instruments). If the Management Stockholder is bound by any other agreement with the Company regarding the use or disclosure of confidential information, the provisions of this Agreement shall be read in such a way as to further restrict and not to permit any more extensive use or disclosure of confidential information. (c) Notwithstanding clauses (a) and (b) above, if at any time a court holds that the restrictions stated in such clauses (a) and (b) are unreasonable or otherwise unenforceable under circumstances then existing, the parties hereto agree that the maximum period, scope or geographic area determined to be reasonable under such circumstances by such court will be substituted for the stated period, scope or area. Because the Management Stockholder's services are unique and because the Management Stockholder has had access to 23 Confidential Information, the parties hereto agree that money damages will be an inadequate remedy for any breach of this Agreement. In the event a breach or threatened breach of this Agreement, the Company or its successors or assigns may, in addition to other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific performance and/or injunctive relief in order to enforce, or prevent any violations of, the provisions hereof (without the posting of a bond or other security). 24 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written. AMPHENOL CORPORATION By: /s/ Edward C. Wetmore ---------------------- Name: Edward C. Wetmore Title: Secretary and General Counsel /s/ Timothy Cohane ---------------------------------- Timothy Cohane ---------------------------------- Management Stockholder 65 Pine Brook Court Cheshire, CT 06410 Address of Management Stockholder SCHEDULE I Targeted Retained Number: 76,923 Actual Retained Number: 64,384 (plus 38,787 in wife's name) Number of Shares of Retained Stock: 76,923 Number of Shares of Purchase Stock: 0 Issued Stock: N.A. Market Stock: N.A. Aggregate Purchase Price: N.A. EXHIBIT A Form of Non-Qualified Stock Option Agreement EX-10.16 11 1997 OPTION PLAN FOR KEY EMPLOYEES EXHIBIT 10.16 1997 OPTION PLAN FOR KEY EMPLOYEES OF AMPHENOL AND SUBSIDIARIES 1. Purpose of Plan The 1997 Option Plan for Key Employees of Amphenol and Subsidiaries (the "Plan") is designed: (a) to promote the long term financial interests and growth of Amphenol Corporation (the "Corporation") and its subsidiaries by attracting and retaining management personnel with the training, experience and ability to enable them to make a substantial contribution to the success of the Corporation's business; (b) to motivate management personnel by means of growth-related incentives to achieve long range goals; and (c) to further the alignment of interests of participants with those of the stockholders of the Corporation through opportunities for increased stock, or stock-based, ownership in the Corporation. 2. Definitions As used in the Plan, the following words shall have the following meanings: (a) "Board of Directors" means the Board of Directors of the Corporation. (b) "Code" means the Internal Revenue Code of 1986, as amended. (c) "Committee" means the Compensation Committee of the Board of Directors. (d) "Common Stock" or "Share" means Series A Common Stock of the Corporation which may be authorized but unissued, or issued and reacquired. (e) "Employee" means a person, including an officer, in the regular full-time employment of the Corporation or one of its Subsidiaries who, in the opinion of the Committee, is, or is expected to be, primarily responsible for the management, growth or protection of some part or all of the business of the Corporation. (f) "Exchange Act" means the Securities Exchange Act of 1934, as amended. (g) "Fair Market Value" means such value of a Share as reported for stock exchange transactions and/or determined in accordance with any applicable resolutions or regulations of the Committee in effect at the relevant time. 2 (h) "Management Stockholders' Agreement" means an agreement between the Corporation and a Participant that sets forth the terms and conditions and limitations applicable to any Shares purchased pursuant to Options granted under this Plan. (i) "Option Agreement" means an agreement between the Corporation and a Participant that sets forth the terms, conditions and limitations applicable to a grant of Options pursuant to the Plan. (j) "Option" means an option to purchase shares of the Common Stock which will not be an "incentive stock option" (within the meaning of Section 422 of the Code). (k) "Participant" means an Employee, or other person having a unique relationship with the Corporation or one of its Subsidiaries, to whom one or more grants of Options have been made and such grants have not all been forfeited or terminated under the Plan; provided, however, that a non-employee director of the Corporation or one of its Subsidiaries may not be a Participant. (l) "Subsidiary" shall mean any corporation in an unbroken chain of corporations beginning with the Corporation if each of the corporations, or group of commonly controlled corporations, other than the last corporation in the unbroken chain then owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. 3. Administration of Plan (a) The Plan shall be administered by the Committee. None of the members of the Committee shall be eligible to be selected for Option grants or to purchase Shares under the Plan, or have been so eligible for selection within one year prior thereto; provided, however, that the members of the Committee shall qualify to administer the Plan for purposes of Rule 16b-3 (and any other applicable rule) promulgated under Section 16(b) of the Exchange Act to the extent that the Corporation is subject to such rule. The Committee may adopt its own rules of procedure, and action of a majority of the members of the Committee taken at a meeting, or action taken without a meeting by unanimous written consent, shall constitute action by the Committee. The Committee shall have the power and authority to administer, construe and interpret the Plan, to make rules for carrying it out and to make changes in such rules. Any such interpretations, rules and administration shall be consistent with the basic purposes of the Plan. (b) The Committee may delegate to the Chief Executive Officer and to other senior officers of the Corporation its duties under the Plan subject to such conditions and limitations as the Committee shall prescribe except that only the Committee may designate and make Option grants to Participants who are subject to Section 16 of the Exchange Act. (c) The Committee may employ attorneys, consultants, accountants, appraisers, brokers or other persons. The Committee, the Corporation, and the officers and directors of 3 the Corporation shall be entitled to rely upon the advice, opinions or valuations of any such persons. All actions taken and all interpretations and determinations made by the Committee in good faith shall be final and binding upon all Participants, the Corporation and all other interested persons. No member of the Committee shall be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or Option grants, and all members of the Committee shall be fully protected by the Corporation with respect to any such action, determination or interpretation. 4. Eligibility The Committee may from time to time make Option grants under the Plan to such Employees, or other persons having a unique relationship with Corporation or any of its Subsidiaries, and in such form and having such terms, conditions and limitations as the Committee may determine. No Option grants may be made under this Plan to non-employee directors of Corporation or any of its Subsidiaries. Options may be granted singly, in combination or in tandem. The terms, conditions and limitations of each Option grant under the Plan shall be set forth in an Option Agreement, in a form approved by the Committee, consistent, however, with the terms of the Plan and the Management Stockholders' Agreement. 5. Grants From time to time, the Committee, in its sole discretion, will determine the forms and amounts of Options to be granted to Participants. At the time of an Option grant, the Committee shall determine, and shall include in the Option Agreement or other Plan rules, the option exercise period, the option price, and such other conditions or restrictions on the grant or exercise of the Option as the Committee deems appropriate. In addition to other restrictions contained in the Plan, an Option granted under this Paragraph 5, (i) may not be exercised more than 10 years after the date it is granted and (ii) may not have an option exercise price less than 50% of the Fair Market Value of Common Stock on the date the Option is granted. Payment of the option price shall be made in cash or in shares of Common Stock, or a combination thereof, in accordance with the terms of the Plan, the Option Agreement and of any applicable guidelines of the Committee in effect at the time. Options may be granted prior to the effective date of the Plan (as determined pursuant to Paragraph 13 herein); provided, however, that no Option shall be Exercisable prior to the date of the approval of the Plan by the stockholders of the Corporation. 6. Limitations and Conditions (a) The number of Shares available under this Plan shall be 1,200,000 shares of the authorized Common Stock as of the effective date of the Plan. The number of Shares subject to Options under this Plan to any one Participant shall not be more than 500,000 Shares. Unless restricted by applicable law, Shares related to Options that are forfeited, terminated, cancelled or expire unexercised, shall immediately become available to be subject to Option grants. 4 (b) No Options shall be granted under the Plan beyond ten years after the effective date of the Plan, but the terms of Options granted on or before the expiration of the Plan may extend beyond such expiration. At the time an Option is granted or amended or the terms or conditions of an Option are changed, the Committee may provide for limitations or conditions on such grant or purchase consistent with the terms of the Management Stockholders' Agreement. (c) Nothing contained herein shall affect the right of the Corporation to terminate any Participant's employment at any time or for any reason. (d) Other than as specifically provided with regard to the death of a Participant, no benefit under the Plan shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or charge, and any attempt to do so shall be void. No such benefit shall, prior to receipt thereof by the Participant, be in any manner liable for or subject to the debts, contracts, liabilities, engagements, or torts of the Participant. (e) Participants shall not be, and shall not have any of the rights or privileges of, stockholders of the Corporation in respect of any Shares purchasable in connection with any Option grant unless and until certificates representing any such Shares have been issued by the Corporation to such Participants. (f) No election as to benefits or exercise of Options may be made during a Participant's lifetime by anyone other than the Participant except by a legal representative appointed for or by the Participant. (g) Absent express provisions to the contrary, any grant of Options under this Plan shall not be deemed compensation for purposes of computing benefits or contributions under any retirement plan of the Corporation or its Subsidiaries and shall not affect any benefits under any other benefit plan of any kind now or subsequently in effect under which the availability or amount of benefits is related to level of compensation. This Plan is not a "Retirement Plan" or "Welfare Plan" under the Employee Retirement Income Security Act of 1974, as amended. (h) Unless the Committee determines otherwise, no benefit or promise under the Plan shall be secured by any specific assets of the Corporation or any of its Subsidiaries, nor shall any assets of the Corporation or any of its Subsidiaries be designated as attributable or allocated to the satisfaction of the Corporation's obligations under the Plan. 7. Transfers and Leaves of Absence For purposes of the Plan, unless the Committee determines otherwise: (a) a transfer of a Participant's employment without an intervening period of separation among the Corporation and any Subsidiary shall not be deemed a termination of employment, and (b) a Participant who is granted in writing a leave of absence shall be deemed to have remained in the employ of the Corporation during such leave of absence. 5 8. Adjustments In the event of any change in the outstanding Common Stock by reason of a stock split, spin-off, stock dividend, stock combination or reclassification, recapitalization or merger, change of control, or similar event, the Committee may adjust appropriately the number of Shares subject to the Plan and available for or covered by Option grants and exercise prices related to outstanding Option grants and make such other revisions to outstanding Option grants as it deems are equitably required. 9. Merger, Consolidation, Exchange, Acquisition, Liquidation or Dissolution In its absolute discretion, and on such terms and conditions as it deems appropriate, coincident with or after the grant of any Option, the Committee may provide that such Option cannot be exercised after the merger or consolidation of the Corporation into another corporation, the exchange of all or substantially all of the assets of the Corporation for the securities of another corporation, the acquisition by another corporation of 80% or more of the Corporation's then outstanding shares of voting stock or the recapitalization, reclassification, liquidation or dissolution of the Corporation (a "Transaction"), and if the Committee so provides, it shall, on such terms and conditions as it deems appropriate, also provide, either by the terms of such Option or by a resolution adopted prior to the occurrence of such Transaction, that, for some reasonable period of time prior to such Transaction, such Option shall be exercisable as to all shares subject thereto, notwithstanding anything to the contrary herein (but subject to the provisions of Paragraph 6(b)) and that, upon the occurrence of such event, such Option shall terminate and be of no further force or effect; provided, however, that the Committee may also provide, in its absolute discretion, that even if the Option shall remain exercisable after any such event, from and after such event, any such Option shall be exercisable only for the kind and amount of securities and/or other property, or the cash equivalent thereof, receivable as a result of such event by the holder of a number of shares of stock for which such Option could have been exercised immediately prior to such event. 10. Amendment and Termination The Committee shall have the authority to make such amendments to any terms and conditions applicable to outstanding Option grants as are consistent with this Plan provided that, except for adjustments under Paragraph 8 or 9 hereof, no such action shall modify such Option grant in a manner adverse to the Participant without the Participant's consent except as such modification is provided for or contemplated in the terms of the Option grant. The Board of Directors may amend, suspend or terminate the Plan except that no such action, other than an action under Paragraph 8 or 9 hereof, may be taken which would, without shareholder approval, increase the aggregate number of Shares subject to Options under the Plan, decrease the exercise price of outstanding Options, change the requirements relating to the Committee or extend the term of the Plan. 6 11. Foreign Options and Rights The Committee may grant Options to Employees who are subject to the laws of nations other than the United States, which Option grants may have terms and conditions that differ from the terms thereof as provided elsewhere in the Plan for the purpose of complying with foreign laws. 12. Withholding Taxes The Corporation shall have the right to deduct from any cash payment made under the Plan any federal, state or local income or other taxes required by law to be withheld with respect to such payment. It shall be a condition to the obligation of the Corporation to deliver shares upon the exercise of an Option that the Participant pay to the Corporation such amount as may be requested by the Corporation for the purpose of satisfying any liability for such withholding taxes. Any Option Agreement may provide that the Participant may elect, in accordance with any conditions set forth in such Option Agreement, to pay a portion or all of such withholding taxes in shares of Common Stock. 13. Effective Date and Termination Dates The Plan shall be effective on and as of the date of its approval by the stockholders of the Corporation and shall terminate ten years later, subject to earlier termination by the Board of Directors pursuant to Paragraph 10. EX-10.17 12 NON-QUALIFIED STOCK OPTION PLAN W/ LOEFFLER EXHIBIT 10.17 NON-QUALIFIED STOCK OPTION AGREEMENT THIS AGREEMENT, dated as of May 19, 1997, is made by and between AMPHENOL CORPORATION a Delaware corporation (hereinafter referred to as the "Company"), and MARTIN H. LOEFFLER, an employee of the Company or a Subsidiary (as defined below) or Affiliate (as defined below) of the Company (hereinafter referred to as "Optionee"). WHEREAS, the Company wishes to afford the Optionee the opportunity to purchase shares of its Class A Common Stock, par value $.001 per share (the "Common Stock"); WHEREAS, the Company wishes to carry out the Plan (as hereinafter defined), the terms of which are hereby incorporated by reference and made a part of this Agreement; and WHEREAS, the Committee (as hereinafter defined), appointed to administer the Plan, has determined that it would be to the advantage and best interest of the Company and its stockholders to grant the Non-Qualified Options provided for herein to the Optionee as an incentive for increased efforts during his term of office with the Company or its Subsidiaries or Affiliates, and has advised the Company thereof and instructed the undersigned officers to issue said Options; NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration, receipt of which is hereby acknowledged, the parties hereto do hereby agree as follows: ARTICLE I DEFINITIONS Whenever the following terms are used in this Agreement, they shall have the meaning specified in the Plan or below unless the context clearly indicates to the contrary. Section 1.1 - Affiliate "Affiliate" shall mean, with respect to the Company, any corporation directly or indirectly controlling, controlled by, or under common control with, the Company or any other entity designated by the Board of Directors of the Company in which the Company or an Affiliate has an interest. Section 1.2 - Cause 2 "Cause" shall mean, (i) the Optionee's willful and continued failure to perform his or her duties with respect to the Company or its Subsidiaries which continues beyond 10 days after a written demand for substantial performance is delivered to the Optionee by the Company or (ii) misconduct by the Optionee (x) involving dishonesty or breach of trust in connection with Optionee's employment, (y) which would be a reasonable basis for an indictment of the Optionee of a felony or a misdemeanor involving moral turpitude or (z) which results in a demonstrable injury to the Company. Section 1.3 - Change of Control "Change of Control" shall mean (i) a sale of all or substantially all of the assets of the Company to a Person who is not an Affiliate of Kohlberg Kravis Roberts & Co. L.P. ("KKR"), (ii) an acquisition of voting stock of the Company resulting in more than 50% of the voting stock of the Company being held by a Person or Group that does not include KKR or any of its Affiliates or (iii) the consummation of a merger, reorganization, business combination or liquidation of the Company, but only if such merger, reorganization, business combination or liquidation results in the KKR 1996 Fund L.P., a Delaware limited partnership (the "Partnership") or NXS Associates L.P., or any affiliates or affiliates thereof, together no longer having power (A) to elect a majority of the Board of Directors of the Company or such other corporation which succeeds to the Company's rights and obligation pursuant to such merger, reorganization, business combination or liquidation, or (B) if the resulting entity of such merger, reorganization, business combination or liquidation is not a corporation, to select the general partner(s) or other persons or entities controlling the operations and business of the resulting entity. Section 1.4 - Code "Code" shall mean the Internal Revenue Code of 1986, as amended. Section 1.5 - Committee "Committee" shall mean the Compensation Committee of the Company. Section 1.6 - Good Reason "Good Reason" shall mean (i) a reduction in Optionee's base salary (other than a broad based salary reduction program affecting many members of management), (ii) a substantial reduction in Optionee's duties and responsibilities, (iii) the elimination or reduction of the Optionee's eligibility to participate in the Company's benefit programs that is inconsistent with the eligibility of similarly situated employees of the Company to participate therein, or (iv) a transfer of the Optionee's primary workplace by more than fifty (50) miles from the workplace as of the date hereof. Section 1.7 - Grant Date 3 "Grant Date" shall mean the date on which the Options provided for in this Agreement were granted. Section 1.8 - Group "Group" means two or more Persons acting together as a partnership, limited partnership, syndicate or other group for the purpose of acquiring, holding or disposing of securities of the Company. Section 1.9 - Management Stockholder's Agreement "Management Stockholder's Agreement" shall mean that certain Management Stockholder's Agreement dated as of May 19, 1997, between the Optionee and the Company. Section 1.10 - Options "Options" shall mean the non-qualified options, to purchase Common Stock granted under this Agreement. Section 1.11 - Permanent Disability The Optionee shall be deemed to have a "Permanent Disability" if the Optionee is unable to engage in the activities required by the Optionee's job by reason of any medically determined physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. Section 1.12 - Person "Person" means an individual, partnership, corporation, business trust, joint stock company, trust, unincorporated association, joint venture, governmental authority or other entity of whatever nature. Section 1.13 - Plan "Plan" shall mean the 1997 Option Plan for Key Employees of Amphenol and Subsidiaries. Section 1.14 - Pronouns The masculine pronoun shall include the feminine and neuter, and the singular the plural, where the context so indicates. Section 1.15 - Retirement 4 "Retirement" shall mean retirement at age 65 or over (or such other age as may be approved by the Board of Directors of the Company) after having been employed by the Company or a Subsidiary for at least three years after the Grant Date. 5 Section 1.16 - Secretary "Secretary" shall mean the Secretary of the Company. Section 1.17 - Subsidiary "Subsidiary" shall mean any corporation in an unbroken chain of corporations beginning with the Company if each of the corporations, or group of commonly controlled corporations (other than the last corporation in the unbroken chain), then owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. Section 1.18 - Trigger Date "Trigger Date" shall mean the date hereof. ARTICLE II GRANT OF OPTIONS Section 2.1 - Grant of Options For good and valuable consideration, on and as of the date hereof the Company irrevocably grants to the Optionee an Option to purchase any part or all of an aggregate of 336,538 shares of its $.001 par value Class A Common Stock upon the terms and conditions set forth in this Agreement. Section 2.2 - Exercise Price Subject to Section 2.4, the exercise price of the shares of stock covered by the Options (the "Option Exercise Price") shall be $26.00 per share without commission or other charge. Section 2.3 - No Right to Employment Nothing in this Agreement or in the Plan shall confer upon the Optionee any right to continue in the employ of the Company or any Subsidiary or Affiliate or shall interfere with or restrict in any way the rights of the Company and its Subsidiaries or Affiliates, which are hereby expressly reserved, to terminate the employment of the Optionee at any time for any reason whatsoever, with or without Cause. Section 2.4 - Adjustments in Options Pursuant to Merger, Consolidation, etc. 6 Subject to Section 9 of the Plan, in the event that the outstanding shares of the stock subject to an Option are, from time to time, changed into or exchanged for a different number or kind of shares of the Company or other securities of the Company by reason of a merger, consolidation, recapitalization, reclassification, stock split, stock dividend, combination of shares, or otherwise, the Committee shall make an adjustment in the number and kind of shares and/or the amount of consideration as to which or for which, as the case may be, such Option, or portions thereof then unexercised, shall be exercisable, in such manner as the Committee determines is reasonably necessary to maintain as nearly as practicable the rights, benefits and obligations that the parties would have had absent such event. Any such adjustment made by the Committee shall be final and binding upon the Optionee, the Company and all other interested persons. ARTICLE III PERIOD OF EXERCISABILITY Section 3.1 - Commencement of Exercisability (a) Options shall become exercisable as follows: Percentage of Option Date Option Shares Granted As to Which Becomes Exercisable Option Is Exercisable - ------------------- --------------------- After the first anniversary of the Trigger Date 20% After the second anniversary of the Trigger Date 40% After the third anniversary of the Trigger Date 60% After the fourth anniversary of the Trigger Date 80% After the fifth anniversary of the Trigger Date 100% Notwithstanding the foregoing, (x) no Options shall become exercisable prior to the time the Plan is approved by the Company's stockholders, and (y) subject to the immediately preceding clause (x), the Options shall become immediately exercisable as to 100% of the shares of Common Stock subject to such Options immediately prior to a Change 7 of Control (but only to the extent such Options have not otherwise terminated or become exercisable). (b) Notwithstanding the foregoing, no Option shall become exercisable as to any additional shares of Common Stock following the termination of employment of the Optionee for any reason other than a termination of employment because of death or Permanent Disability of the Optionee, and any Option (other than as provided in the next succeeding sentence) which is non-exercisable as of the Optionee's termination of employment shall be immediately cancelled. In the event of a termination of employment because of such death or Permanent Disability, the Options shall immediately become exercisable as to all shares of Common Stock subject thereto. Section 3.2 - Expiration of Options Except as otherwise provided in Section 5 or 6 of the Management Stockholder's Agreement, the Options may not be exercised to any extent by the Optionee after the first to occur of the following events: (a) The tenth anniversary of the Grant Date; or (b) The first anniversary of the date of the Optionee's termination of employment by reason of death, Permanent Disability or Retirement; or (c) The first business day which is fifteen calendar days after the earlier of (i) 75 days after termination of employment of the Optionee for any reason other than for death, Permanent Disability or Retirement and (ii) the delivery of notice by the Company that it does not intend to exercise its call rights under Section 6 of the Management Stockholder's Agreement; provided, however, that in any event the Options shall remain exercisable under this subsection 3.2(c) until at least 45 days after termination of employment of the Optionee for any reason other than for death, Permanent Disability or Retirement; or (d) The date the Option is terminated pursuant to Section 5, 6 or 8(b) of the Management Stockholder's Agreement; or (e) If the Committee so elects pursuant to Section 9 of the Plan, the effective date of a Transaction; provided, however, that the Committee has provided Optionee with a reasonable period of notice prior to the effective date of such Transaction in which to exercise Options that have then neither been fully exercised nor become unexercisable under this Section 3.2. ARTICLE IV EXERCISE OF OPTIONS 8 Section 4.1 - Person Eligible to Exercise Except as provided in the Management Stockholder's Agreement, during the lifetime of the Optionee, only he may exercise an Option or any portion thereof. After the death of the Optionee, any exercisable portion of an Option may, prior to the time when an Option becomes unexercisable under Section 3.2, be exercised by his personal representative or by any person empowered to do so under the Optionee's will or under the then applicable laws of descent and distribution. Section 4.2 - Partial Exercise Any exercisable portion of an Option or the entire Option, if then wholly exercisable, may be exercised in whole or in part at any time prior to the time when the Option or portion thereof becomes unexercisable under Section 3.2; provided, however, that any partial exercise shall be for whole shares of Common Stock only. Section 4.3 - Manner of Exercise An Option, or any exercisable portion thereof, may be exercised solely by delivering to the Secretary or his office all of the following prior to the time when the Option or such portion becomes unexercisable under Section 3.2: (a) Notice in writing signed by the Optionee or the other person then entitled to exercise the Option or portion thereof, stating that the Option or portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee; (b) Full payment (in cash, by check or by a combination thereof) for the shares with respect to which such Option or portion thereof is exercised; (c) A bona fide written representation and agreement, in a form satisfactory to the Committee, signed by the Optionee or other person then entitled to exercise such Option or portion thereof, stating that the shares of stock are being acquired for his own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act of 1933, as amended (the "Act"), and then applicable rules and regulations thereunder, and that the Optionee or other person then entitled to exercise such Option or portion thereof will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above; provided, however, that the Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations; 9 (d) Full payment to the Company of all amounts which, under federal, state or local law, it is required to withhold upon exercise of the Option; and (e) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the Optionee, appropriate proof of the right of such person or persons to exercise the option. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of shares acquired on exercise of an Option does not violate the Act, and may issue stop-transfer orders covering such shares. Share certificates evidencing stock issued on exercise of this Option shall bear an appropriate legend referring to the provisions of subsection (c) above and the agreements herein. The written representation and agreement referred to in subsection (c) above shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act, and such registration is then effective in respect of such shares. Section 4.4 - Conditions to Issuance of Stock Certificates The shares of stock deliverable upon the exercise of an Option, or any portion thereof, may be either previously authorized but unissued shares or issued shares which have then been reacquired by the Company. Such shares shall be validly issued, fully paid and nonassessable. The Company shall not be required to issue or deliver any certificate or certificates for shares of stock purchased upon the exercise of an Option or portion thereof prior to fulfillment of all of the following conditions: (a) The obtaining of approval or other clearance from any state or federal governmental agency which the Committee shall, in its absolute discretion, determine to be necessary or advisable; and (b) The lapse of such reasonable period of time following the exercise of the Option as the Committee may from time to time establish for reasons of administrative convenience. Section 4.5 - Rights as Stockholder The holder of an Option shall not be, nor have any of the rights or privileges of, a stockholder of the Company in respect of any shares purchasable upon the exercise of the Option or any portion thereof unless and until certificates representing such shares shall have been issued by the Company to such holder. ARTICLE V MISCELLANEOUS Section 5.1 - Administration 10 The Committee shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules. All actions taken and all interpretations and determinations made by the Committee shall be final and binding upon the Optionee, the Company and all other interested persons. No member of the Committee shall be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or the Options. In its absolute discretion, the Board of Directors may at any time and from time to time exercise any and all rights and duties of the Committee under the Plan and this Agreement. Section 5.2 - Options Not Transferable Except as provided in the Management Stockholder's Agreement, neither the Options nor any interest or right therein or part thereof shall be liable for the debts, contracts or engagements of the Optionee or his successors in interest or shall be subject to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other means whether such disposition be voluntary or involuntary or by operation of law by judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy), and any attempted disposition thereof shall be null and void and of no effect; provided, however, that this Section 5.2 shall not prevent transfers by will or by the applicable laws of descent and distribution. Section 5.3 - Shares to Be Reserved The Company shall at all times during the term of the Options reserve and keep available such number of shares of stock as will be sufficient to satisfy the requirements of this Agreement. Section 5.4 - Notices Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of its Secretary, and any notice to be given to the Optionee shall be addressed to him at the address given beneath his signature hereto. By a notice given pursuant to this Section 5.4, either party may hereafter designate a different address for notices to be given to him. Any notice which is required to be given to the Optionee shall, if the Optionee is then deceased, be given to the Optionee's personal representative if such representative has previously informed the Company of his status and address by written notice under this Section 5.4. Any notice shall have been deemed duly given when enclosed in a properly sealed envelope or wrapper addressed as aforesaid, deposited (with postage prepaid) in a post office or branch post office regularly maintained by the United States Postal Service, or when sent by overnight delivery or telecopy. Section 5.5 - Titles Titles are provided herein for convenience only and are not to serve as a basis for interpretation or construction of this Agreement. 11 Section 5.6 - Applicability of Plan and Management Stockholder's Agreement The Options and the shares of Common Stock issued to the Optionee upon exercise of the Options shall be subject to all of the terms and provisions of the Plan and the Management Stockholder's Agreement, to the extent applicable to the Options and such shares. In the event of any conflict between this Agreement and the Plan, the terms of the Plan shall control. In the event of any conflict between this Agreement or the Plan and the Management Stockholder's Agreement, the terms of the Management Stockholder's Agreement shall control. Section 5.7 - Amendment This Agreement may be amended only by a writing executed by the parties hereto which specifically states that it is amending this Agreement. Section 5.8 - Governing Law The laws of the State of Delaware (or if the Company reincorporates in another state, the laws of that state) shall govern the interpretation, validity and performance of the terms of this Agreement regardless of the law that might be applied under principles of conflicts of laws. Section 5.9 - Jurisdiction Any suit, action or proceeding against the Optionee with respect to this Agreement, or any judgment entered by any court in respect of any thereof, may be brought in any court of competent jurisdiction in the State of Delaware (or if the Company reincorporates in another state, in that state) or New York, as the Company may elect in its sole discretion, and the Optionee hereby submits to the non-exclusive jurisdiction of such courts for the purpose of any such suit, action, proceeding or judgment. The Optionee hereby irrevocably waives any objections which he may now or hereafter have to the laying of the venue of any suit, action or proceeding arising out of or relating to this Agreement brought in any court of competent jurisdiction in the State of Delaware (or if the Company reincorporates in another state, in that state) or New York, and hereby further irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in any inconvenient forum. No suit, action or proceeding against the Company with respect to this Agreement may be brought in any court, domestic or foreign, or before any similar domestic or foreign authority other than in a court of competent jurisdiction in the State of Delaware (or if the Company reincorporates in another state, in that state) or New York, and the Optionee hereby irrevocably waives any right which he may otherwise have had to bring such an action in any other court, domestic or foreign, or before any similar domestic or foreign authority. The Company hereby submits to the jurisdiction of such courts for the purpose of any such suit, action or proceeding. The Optionee hereby irrevocably and unconditionally waives trial by jury in any legal action or proceeding in relation to this Agreement and for any counterclaim therein. 12 IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto. Amphenol Corporation By /s/ Edward C. Wetmore ----------------------------------- Name: Edward C. Wetmore Title: Secretary and General Counsel /s/ Martin H. Loeffler - ----------------------------- - ----------------------------- MARTIN H. LOEFFLER - ----------------------------- 58 N. Star Drive Southington, CT 06489 - ----------------------------- Address Martin H. Loeffler's Taxpayer Identification Number: 332 74 0318 - ----------------------------- EX-10.18 13 NON-QUALIFIED STOCK OPTION PLAN W/JEPSEN EXHIBIT 10.18 NON-QUALIFIED STOCK OPTION AGREEMENT THIS AGREEMENT, dated as of May 19, 1997, is made by and between AMPHENOL CORPORATION a Delaware corporation (hereinafter referred to as the "Company"), and EDWARD G. JEPSEN, an employee of the Company or a Subsidiary (as defined below) or Affiliate (as defined below) of the Company (hereinafter referred to as "Optionee"). WHEREAS, the Company wishes to afford the Optionee the opportunity to purchase shares of its Class A Common Stock, par value $.001 per share (the "Common Stock"); WHEREAS, the Company wishes to carry out the Plan (as hereinafter defined), the terms of which are hereby incorporated by reference and made a part of this Agreement; and WHEREAS, the Committee (as hereinafter defined), appointed to administer the Plan, has determined that it would be to the advantage and best interest of the Company and its stockholders to grant the Non-Qualified Options provided for herein to the Optionee as an incentive for increased efforts during his term of office with the Company or its Subsidiaries or Affiliates, and has advised the Company thereof and instructed the undersigned officers to issue said Options; NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration, receipt of which is hereby acknowledged, the parties hereto do hereby agree as follows: ARTICLE I DEFINITIONS Whenever the following terms are used in this Agreement, they shall have the meaning specified in the Plan or below unless the context clearly indicates to the contrary. Section 1.1 - Affiliate "Affiliate" shall mean, with respect to the Company, any corporation directly or indirectly controlling, controlled by, or under common control with, the Company or any other entity designated by the Board of Directors of the Company in which the Company or an Affiliate has an interest. 2 Section 1.2 - Cause "Cause" shall mean, (i) the Optionee's willful and continued failure to perform his or her duties with respect to the Company or its Subsidiaries which continues beyond 10 days after a written demand for substantial performance is delivered to the Optionee by the Company or (ii) misconduct by the Optionee (x) involving dishonesty or breach of trust in connection with Optionee's employment, (y) which would be a reasonable basis for an indictment of the Optionee of a felony or a misdemeanor involving moral turpitude or (z) which results in a demonstrable injury to the Company. Section 1.3 - Change of Control "Change of Control" shall mean (i) a sale of all or substantially all of the assets of the Company to a Person who is not an Affiliate of Kohlberg Kravis Roberts & Co. L.P. ("KKR"), (ii) an acquisition of voting stock of the Company resulting in more than 50% of the voting stock of the Company being held by a Person or Group that does not include KKR or any of its Affiliates or (iii) the consummation of a merger, reorganization, business combination or liquidation of the Company, but only if such merger, reorganization, business combination or liquidation results in the KKR 1996 Fund L.P., a Delaware limited partnership (the "Partnership") or NXS Associates L.P., or any affiliates or affiliates thereof, together no longer having power (A) to elect a majority of the Board of Directors of the Company or such other corporation which succeeds to the Company's rights and obligation pursuant to such merger, reorganization, business combination or liquidation, or (B) if the resulting entity of such merger, reorganization, business combination or liquidation is not a corporation, to select the general partner(s) or other persons or entities controlling the operations and business of the resulting entity. Section 1.4 - Code "Code" shall mean the Internal Revenue Code of 1986, as amended. Section 1.5 - Committee "Committee" shall mean the Compensation Committee of the Company. Section 1.6 - Good Reason "Good Reason" shall mean (i) a reduction in Optionee's base salary (other than a broad based salary reduction program affecting many members of management), (ii) a substantial reduction in Optionee's duties and responsibilities other than as approved by the Chief Executive Officer of the Company as of the date of this Agreement, (iii) the elimination or reduction of the Optionee's eligibility to participate in the Company's benefit programs that is inconsistent with the eligibility of similarly situated employees of the Company to participate therein, or (iv) a transfer of the Optionee's primary workplace by more than fifty (50) miles from the workplace as of the date hereof. 3 Section 1.7 - Grant Date "Grant Date" shall mean the date on which the Options provided for in this Agreement were granted. 4 Section 1.8 - Group "Group" means two or more Persons acting together as a partnership, limited partnership, syndicate or other group for the purpose of acquiring, holding or disposing of securities of the Company. Section 1.9 - Management Stockholder's Agreement "Management Stockholder's Agreement" shall mean that certain Management Stockholder's Agreement dated as of May 19, 1997, between the Optionee and the Company. Section 1.10 - Options "Options" shall mean the non-qualified options, to purchase Common Stock granted under this Agreement. Section 1.11 - Permanent Disability The Optionee shall be deemed to have a "Permanent Disability" if the Optionee is unable to engage in the activities required by the Optionee's job by reason of any medically determined physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. Section 1.12 - Person "Person" means an individual, partnership, corporation, business trust, joint stock company, trust, unincorporated association, joint venture, governmental authority or other entity of whatever nature. Section 1.13 - Plan "Plan" shall mean the 1997 Option Plan for Key Employees of Amphenol and Subsidiaries. Section 1.14 - Pronouns The masculine pronoun shall include the feminine and neuter, and the singular the plural, where the context so indicates. Section 1.15 - Retirement "Retirement" shall mean retirement at age 65 or over (or such other age as may be approved by the Board of Directors of the Company) after having been employed by the Company or a Subsidiary for at least three years after the Grant Date. 5 6 Section 1.16 - Secretary "Secretary" shall mean the Secretary of the Company. Section 1.17 - Subsidiary "Subsidiary" shall mean any corporation in an unbroken chain of corporations beginning with the Company if each of the corporations, or group of commonly controlled corporations (other than the last corporation in the unbroken chain), then owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. Section 1.18 - Trigger Date "Trigger Date" shall mean the date hereof. ARTICLE II GRANT OF OPTIONS Section 2.1 - Grant of Options For good and valuable consideration, on and as of the date hereof the Company irrevocably grants to the Optionee an Option to purchase any part or all of an aggregate of 230,769 shares of its $.001 par value Class A Common Stock upon the terms and conditions set forth in this Agreement. Section 2.2 - Exercise Price Subject to Section 2.4, the exercise price of the shares of stock covered by the Options (the "Option Exercise Price") shall be $26.00 per share without commission or other charge. Section 2.3 - No Right to Employment Nothing in this Agreement or in the Plan shall confer upon the Optionee any right to continue in the employ of the Company or any Subsidiary or Affiliate or shall interfere with or restrict in any way the rights of the Company and its Subsidiaries or Affiliates, which are hereby expressly reserved, to terminate the employment of the Optionee at any time for any reason whatsoever, with or without Cause. Section 2.4 - Adjustments in Options Pursuant to Merger, Consolidation, etc. 7 Subject to Section 9 of the Plan, in the event that the outstanding shares of the stock subject to an Option are, from time to time, changed into or exchanged for a different number or kind of shares of the Company or other securities of the Company by reason of a merger, consolidation, recapitalization, reclassification, stock split, stock dividend, combination of shares, or otherwise, the Committee shall make an adjustment in the number and kind of shares and/or the amount of consideration as to which or for which, as the case may be, such Option, or portions thereof then unexercised, shall be exercisable, in such manner as the Committee determines is reasonably necessary to maintain as nearly as practicable the rights, benefits and obligations that the parties would have had absent such event. Any such adjustment made by the Committee shall be final and binding upon the Optionee, the Company and all other interested persons. ARTICLE III PERIOD OF EXERCISABILITY Section 3.1 - Commencement of Exercisability (a) Options shall become exercisable as follows: Percentage of Option Date Option Shares Granted As to Which Becomes Exercisable Option Is Exercisable - ------------------- --------------------- After the first anniversary of the Trigger Date 20% After the second anniversary of the Trigger Date 40% After the third anniversary of the Trigger Date 60% After the fourth anniversary of the Trigger Date 80% After the fifth anniversary of the Trigger Date 100% Notwithstanding the foregoing, (x) no Options shall become exercisable prior to the time the Plan is approved by the Company's stockholders, and (y) subject to the immediately preceding clause (x), the Options shall become immediately exercisable as to 100% of the shares of Common Stock subject to such Options immediately prior to a Change 8 of Control (but only to the extent such Options have not otherwise terminated or become exercisable). (b) Notwithstanding the foregoing, no Option shall become exercisable as to any additional shares of Common Stock following the termination of employment of the Optionee for any reason other than a termination of employment because of death or Permanent Disability of the Optionee, and any Option (other than as provided in the next succeeding sentence) which is non-exercisable as of the Optionee's termination of employment shall be immediately cancelled. In the event of a termination of employment because of such death or Permanent Disability, the Options shall immediately become exercisable as to all shares of Common Stock subject thereto. Section 3.2 - Expiration of Options Except as otherwise provided in Section 5 or 6 of the Management Stockholder's Agreement, the Options may not be exercised to any extent by the Optionee after the first to occur of the following events: (a) The tenth anniversary of the Grant Date; or (b) The first anniversary of the date of the Optionee's termination of employment by reason of death, Permanent Disability or Retirement; or (c) The first business day which is fifteen calendar days after the earlier of (i) 75 days after termination of employment of the Optionee for any reason other than for death, Permanent Disability or Retirement and (ii) the delivery of notice by the Company that it does not intend to exercise its call rights under Section 6 of the Management Stockholder's Agreement; provided, however, that in any event the Options shall remain exercisable under this subsection 3.2(c) until at least 45 days after termination of employment of the Optionee for any reason other than for death, Permanent Disability or Retirement; or (d) The date the Option is terminated pursuant to Section 5, 6 or 8(b) of the Management Stockholder's Agreement; or (e) If the Committee so elects pursuant to Section 9 of the Plan, the effective date of a Transaction; provided, however, that the Committee has provided Optionee with a reasonable period of notice prior to the effective date of such Transaction in which to exercise Options that have then neither been fully exercised nor become unexercisable under this Section 3.2. ARTICLE IV EXERCISE OF OPTIONS 9 Section 4.1 - Person Eligible to Exercise Except as provided in the Management Stockholder's Agreement, during the lifetime of the Optionee, only he may exercise an Option or any portion thereof. After the death of the Optionee, any exercisable portion of an Option may, prior to the time when an Option becomes unexercisable under Section 3.2, be exercised by his personal representative or by any person empowered to do so under the Optionee's will or under the then applicable laws of descent and distribution. Section 4.2 - Partial Exercise Any exercisable portion of an Option or the entire Option, if then wholly exercisable, may be exercised in whole or in part at any time prior to the time when the Option or portion thereof becomes unexercisable under Section 3.2; provided, however, that any partial exercise shall be for whole shares of Common Stock only. Section 4.3 - Manner of Exercise An Option, or any exercisable portion thereof, may be exercised solely by delivering to the Secretary or his office all of the following prior to the time when the Option or such portion becomes unexercisable under Section 3.2: (a) Notice in writing signed by the Optionee or the other person then entitled to exercise the Option or portion thereof, stating that the Option or portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee; (b) Full payment (in cash, by check or by a combination thereof) for the shares with respect to which such Option or portion thereof is exercised; (c) A bona fide written representation and agreement, in a form satisfactory to the Committee, signed by the Optionee or other person then entitled to exercise such Option or portion thereof, stating that the shares of stock are being acquired for his own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act of 1933, as amended (the "Act"), and then applicable rules and regulations thereunder, and that the Optionee or other person then entitled to exercise such Option or portion thereof will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above; provided, however, that the Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations; 10 (d) Full payment to the Company of all amounts which, under federal, state or local law, it is required to withhold upon exercise of the Option; and (e) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the Optionee, appropriate proof of the right of such person or persons to exercise the option. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of shares acquired on exercise of an Option does not violate the Act, and may issue stop-transfer orders covering such shares. Share certificates evidencing stock issued on exercise of this Option shall bear an appropriate legend referring to the provisions of subsection (c) above and the agreements herein. The written representation and agreement referred to in subsection (c) above shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act, and such registration is then effective in respect of such shares. Section 4.4 - Conditions to Issuance of Stock Certificates The shares of stock deliverable upon the exercise of an Option, or any portion thereof, may be either previously authorized but unissued shares or issued shares which have then been reacquired by the Company. Such shares shall be validly issued, fully paid and nonassessable. The Company shall not be required to issue or deliver any certificate or certificates for shares of stock purchased upon the exercise of an Option or portion thereof prior to fulfillment of all of the following conditions: (a) The obtaining of approval or other clearance from any state or federal governmental agency which the Committee shall, in its absolute discretion, determine to be necessary or advisable; and (b) The lapse of such reasonable period of time following the exercise of the Option as the Committee may from time to time establish for reasons of administrative convenience. Section 4.5 - Rights as Stockholder The holder of an Option shall not be, nor have any of the rights or privileges of, a stockholder of the Company in respect of any shares purchasable upon the exercise of the Option or any portion thereof unless and until certificates representing such shares shall have been issued by the Company to such holder. ARTICLE V MISCELLANEOUS Section 5.1 - Administration 11 The Committee shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules. All actions taken and all interpretations and determinations made by the Committee shall be final and binding upon the Optionee, the Company and all other interested persons. No member of the Committee shall be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or the Options. In its absolute discretion, the Board of Directors may at any time and from time to time exercise any and all rights and duties of the Committee under the Plan and this Agreement. Section 5.2 - Options Not Transferable Except as provided in the Management Stockholder's Agreement, neither the Options nor any interest or right therein or part thereof shall be liable for the debts, contracts or engagements of the Optionee or his successors in interest or shall be subject to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other means whether such disposition be voluntary or involuntary or by operation of law by judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy), and any attempted disposition thereof shall be null and void and of no effect; provided, however, that this Section 5.2 shall not prevent transfers by will or by the applicable laws of descent and distribution. Section 5.3 - Shares to Be Reserved The Company shall at all times during the term of the Options reserve and keep available such number of shares of stock as will be sufficient to satisfy the requirements of this Agreement. Section 5.4 - Notices Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of its Secretary, and any notice to be given to the Optionee shall be addressed to him at the address given beneath his signature hereto. By a notice given pursuant to this Section 5.4, either party may hereafter designate a different address for notices to be given to him. Any notice which is required to be given to the Optionee shall, if the Optionee is then deceased, be given to the Optionee's personal representative if such representative has previously informed the Company of his status and address by written notice under this Section 5.4. Any notice shall have been deemed duly given when enclosed in a properly sealed envelope or wrapper addressed as aforesaid, deposited (with postage prepaid) in a post office or branch post office regularly maintained by the United States Postal Service, or when sent by overnight delivery or telecopy. Section 5.5 - Titles Titles are provided herein for convenience only and are not to serve as a basis for interpretation or construction of this Agreement. 12 Section 5.6 - Applicability of Plan and Management Stockholder's Agreement The Options and the shares of Common Stock issued to the Optionee upon exercise of the Options shall be subject to all of the terms and provisions of the Plan and the Management Stockholder's Agreement, to the extent applicable to the Options and such shares. In the event of any conflict between this Agreement and the Plan, the terms of the Plan shall control. In the event of any conflict between this Agreement or the Plan and the Management Stockholder's Agreement, the terms of the Management Stockholder's Agreement shall control. Section 5.7 - Amendment This Agreement may be amended only by a writing executed by the parties hereto which specifically states that it is amending this Agreement. Section 5.8 - Governing Law The laws of the State of Delaware (or if the Company reincorporates in another state, the laws of that state) shall govern the interpretation, validity and performance of the terms of this Agreement regardless of the law that might be applied under principles of conflicts of laws. Section 5.9 - Jurisdiction Any suit, action or proceeding against the Optionee with respect to this Agreement, or any judgment entered by any court in respect of any thereof, may be brought in any court of competent jurisdiction in the State of Delaware (or if the Company reincorporates in another state, in that state) or New York, as the Company may elect in its sole discretion, and the Optionee hereby submits to the non-exclusive jurisdiction of such courts for the purpose of any such suit, action, proceeding or judgment. The Optionee hereby irrevocably waives any objections which he may now or hereafter have to the laying of the venue of any suit, action or proceeding arising out of or relating to this Agreement brought in any court of competent jurisdiction in the State of Delaware (or if the Company reincorporates in another state, in that state) or New York, and hereby further irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in any inconvenient forum. No suit, action or proceeding against the Company with respect to this Agreement may be brought in any court, domestic or foreign, or before any similar domestic or foreign authority other than in a court of competent jurisdiction in the State of Delaware (or if the Company reincorporates in another state, in that state) or New York, and the Optionee hereby irrevocably waives any right which he may otherwise have had to bring such an action in any other court, domestic or foreign, or before any similar domestic or foreign authority. The Company hereby submits to the jurisdiction of such courts for the purpose of any such suit, action or proceeding. The Optionee hereby irrevocably and unconditionally waives trial by jury in any legal action or proceeding in relation to this Agreement and for any counterclaim therein. 13 IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto. Amphenol Corporation By /s/ Edward C. Wetmore ----------------------------------- Name: Edward C. Wetmore Title: Secretary and General Counsel /s/ Edward G. Jepsen - ----------------------------- - ----------------------------- EDWARD G. JEPSEN - ----------------------------- 14 Gale Road Bloomfield, CT 06002 - ----------------------------- Address Edward G. Jepsen's Taxpayer Identification Number: 507 52 0044 - ----------------------------- EX-10.19 14 NON-QUALIFIED STOCK OPTION PLAN W/ COHANE EXHIBIT 10.19 NON-QUALIFIED STOCK OPTION AGREEMENT THIS AGREEMENT, dated as of May 19, 1997, is made by and between AMPHENOL CORPORATION a Delaware corporation (hereinafter referred to as the "Company"), and TIMOTHY F. COHANE, an employee of the Company or a Subsidiary (as defined below) or Affiliate (as defined below) of the Company (hereinafter referred to as "Optionee"). WHEREAS, the Company wishes to afford the Optionee the opportunity to purchase shares of its Class A Common Stock, par value $.001 per share (the "Common Stock"); WHEREAS, the Company wishes to carry out the Plan (as hereinafter defined), the terms of which are hereby incorporated by reference and made a part of this Agreement; and WHEREAS, the Committee (as hereinafter defined), appointed to administer the Plan, has determined that it would be to the advantage and best interest of the Company and its stockholders to grant the Non-Qualified Options provided for herein to the Optionee as an incentive for increased efforts during his term of office with the Company or its Subsidiaries or Affiliates, and has advised the Company thereof and instructed the undersigned officers to issue said Options; NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration, receipt of which is hereby acknowledged, the parties hereto do hereby agree as follows: ARTICLE I DEFINITIONS Whenever the following terms are used in this Agreement, they shall have the meaning specified in the Plan or below unless the context clearly indicates to the contrary. Section 1.1 - Affiliate "Affiliate" shall mean, with respect to the Company, any corporation directly or indirectly controlling, controlled by, or under common control with, the Company or any other entity designated by the Board of Directors of the Company in which the Company or an Affiliate has an interest. Section 1.2 - Cause "Cause" shall mean, (i) the Optionee's willful and continued failure to perform his or her duties with respect to the Company or its Subsidiaries which continues beyond 10 days after a written demand for substantial performance is delivered to the Optionee by the Company or (ii) misconduct by the Optionee (x) involving dishonesty or breach of trust in 2 connection with Optionee's employment, (y) which would be a reasonable basis for an indictment of the Optionee of a felony or a misdemeanor involving moral turpitude or (z) which results in a demonstrable injury to the Company. Section 1.3 - Change of Control "Change of Control" shall mean (i) a sale of all or substantially all of the assets of the Company to a Person who is not an Affiliate of Kohlberg Kravis Roberts & Co. L.P. ("KKR"), (ii) an acquisition of voting stock of the Company resulting in more than 50% of the voting stock of the Company being held by a Person or Group that does not include KKR or any of its Affiliates or (iii) the consummation of a merger, reorganization, business combination or liquidation of the Company, but only if such merger, reorganization, business combination or liquidation results in the KKR 1996 Fund L.P., a Delaware limited partnership (the "Partnership") or NXS Associates L.P., or any affiliates or affiliates thereof, together no longer having power (A) to elect a majority of the Board of Directors of the Company or such other corporation which succeeds to the Company's rights and obligation pursuant to such merger, reorganization, business combination or liquidation, or (B) if the resulting entity of such merger, reorganization, business combination or liquidation is not a corporation, to select the general partner(s) or other persons or entities controlling the operations and business of the resulting entity. Section 1.4 - Code "Code" shall mean the Internal Revenue Code of 1986, as amended. Section 1.5 - Committee "Committee" shall mean the Compensation Committee of the Company. Section 1.6 - Good Reason "Good Reason" shall mean (i) a reduction in Optionee's base salary (other than a broad based salary reduction program affecting many members of management), (ii) a substantial reduction in Optionee's duties and responsibilities other than as approved by the Chief Executive Officer of the Company as of the date of this Agreement, (iii) the elimination or reduction of the Optionee's eligibility to participate in the Company's benefit programs that is inconsistent with the eligibility of similarly situated employees of the Company to participate therein, or (iv) a transfer of the Optionee's primary workplace by more than fifty (50) miles from the workplace as of the date hereof. Section 1.7 - Grant Date "Grant Date" shall mean the date on which the Options provided for in this Agreement were granted. 3 4 Section 1.8 - Group "Group" means two or more Persons acting together as a partnership, limited partnership, syndicate or other group for the purpose of acquiring, holding or disposing of securities of the Company. Section 1.9 - Management Stockholder's Agreement "Management Stockholder's Agreement" shall mean that certain Management Stockholder's Agreement dated as of May 19, 1997, between the Optionee and the Company. Section 1.10 - Options "Options" shall mean the non-qualified options, to purchase Common Stock granted under this Agreement. Section 1.11 - Permanent Disability The Optionee shall be deemed to have a "Permanent Disability" if the Optionee is unable to engage in the activities required by the Optionee's job by reason of any medically determined physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. Section 1.12 - Person "Person" means an individual, partnership, corporation, business trust, joint stock company, trust, unincorporated association, joint venture, governmental authority or other entity of whatever nature. Section 1.13 - Plan "Plan" shall mean the 1997 Option Plan for Key Employees of Amphenol and Subsidiaries. Section 1.14 - Pronouns The masculine pronoun shall include the feminine and neuter, and the singular the plural, where the context so indicates. Section 1.15 - Retirement "Retirement" shall mean retirement at age 65 or over (or such other age as may be approved by the Board of Directors of the Company) after having been employed by the Company or a Subsidiary for at least three years after the Grant Date. 5 6 Section 1.16 - Secretary "Secretary" shall mean the Secretary of the Company. Section 1.17 - Subsidiary "Subsidiary" shall mean any corporation in an unbroken chain of corporations beginning with the Company if each of the corporations, or group of commonly controlled corporations (other than the last corporation in the unbroken chain), then owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. Section 1.18 - Trigger Date "Trigger Date" shall mean the date hereof. ARTICLE II GRANT OF OPTIONS Section 2.1 - Grant of Options For good and valuable consideration, on and as of the date hereof the Company irrevocably grants to the Optionee an Option to purchase any part or all of an aggregate of 230,769 shares of its $.001 par value Class A Common Stock upon the terms and conditions set forth in this Agreement. Section 2.2 - Exercise Price Subject to Section 2.4, the exercise price of the shares of stock covered by the Options (the "Option Exercise Price") shall be $26.00 per share without commission or other charge. Section 2.3 - No Right to Employment Nothing in this Agreement or in the Plan shall confer upon the Optionee any right to continue in the employ of the Company or any Subsidiary or Affiliate or shall interfere with or restrict in any way the rights of the Company and its Subsidiaries or Affiliates, which are hereby expressly reserved, to terminate the employment of the Optionee at any time for any reason whatsoever, with or without Cause. Section 2.4 - Adjustments in Options Pursuant to Merger, Consolidation, etc. 7 Subject to Section 9 of the Plan, in the event that the outstanding shares of the stock subject to an Option are, from time to time, changed into or exchanged for a different number or kind of shares of the Company or other securities of the Company by reason of a merger, consolidation, recapitalization, reclassification, stock split, stock dividend, combination of shares, or otherwise, the Committee shall make an adjustment in the number and kind of shares and/or the amount of consideration as to which or for which, as the case may be, such Option, or portions thereof then unexercised, shall be exercisable, in such manner as the Committee determines is reasonably necessary to maintain as nearly as practicable the rights, benefits and obligations that the parties would have had absent such event. Any such adjustment made by the Committee shall be final and binding upon the Optionee, the Company and all other interested persons. ARTICLE III PERIOD OF EXERCISABILITY Section 3.1 - Commencement of Exercisability (a) Options shall become exercisable as follows: Percentage of Option Date Option Shares Granted As to Which Becomes Exercisable Option Is Exercisable - ------------------- --------------------- After the first anniversary of the Trigger Date 20% After the second anniversary of the Trigger Date 40% After the third anniversary of the Trigger Date 60% After the fourth anniversary of the Trigger Date 80% After the fifth anniversary of the Trigger Date 100% Notwithstanding the foregoing, (x) no Options shall become exercisable prior to the time the Plan is approved by the Company's stockholders, and (y) subject to the immediately preceding clause (x), the Options shall become immediately exercisable as to 100% of the shares of Common Stock subject to such Options immediately prior to a Change 8 of Control (but only to the extent such Options have not otherwise terminated or become exercisable). (b) Notwithstanding the foregoing, no Option shall become exercisable as to any additional shares of Common Stock following the termination of employment of the Optionee for any reason other than a termination of employment because of death or Permanent Disability of the Optionee, and any Option (other than as provided in the next succeeding sentence) which is non-exercisable as of the Optionee's termination of employment shall be immediately cancelled. In the event of a termination of employment because of such death or Permanent Disability, the Options shall immediately become exercisable as to all shares of Common Stock subject thereto. Section 3.2 - Expiration of Options Except as otherwise provided in Section 5 or 6 of the Management Stockholder's Agreement, the Options may not be exercised to any extent by the Optionee after the first to occur of the following events: (a) The tenth anniversary of the Grant Date; or (b) The first anniversary of the date of the Optionee's termination of employment by reason of death, Permanent Disability or Retirement; or (c) The first business day which is fifteen calendar days after the earlier of (i) 75 days after termination of employment of the Optionee for any reason other than for death, Permanent Disability or Retirement and (ii) the delivery of notice by the Company that it does not intend to exercise its call rights under Section 6 of the Management Stockholder's Agreement; provided, however, that in any event the Options shall remain exercisable under this subsection 3.2(c) until at least 45 days after termination of employment of the Optionee for any reason other than for death, Permanent Disability or Retirement; or (d) The date the Option is terminated pursuant to Section 5, 6 or 8(b) of the Management Stockholder's Agreement; or (e) If the Committee so elects pursuant to Section 9 of the Plan, the effective date of a Transaction; provided, however, that the Committee has provided Optionee with a reasonable period of notice prior to the effective date of such Transaction in which to exercise Options that have then neither been fully exercised nor become unexercisable under this Section 3.2. ARTICLE IV EXERCISE OF OPTIONS 9 Section 4.1 - Person Eligible to Exercise Except as provided in the Management Stockholder's Agreement, during the lifetime of the Optionee, only he may exercise an Option or any portion thereof. After the death of the Optionee, any exercisable portion of an Option may, prior to the time when an Option becomes unexercisable under Section 3.2, be exercised by his personal representative or by any person empowered to do so under the Optionee's will or under the then applicable laws of descent and distribution. Section 4.2 - Partial Exercise Any exercisable portion of an Option or the entire Option, if then wholly exercisable, may be exercised in whole or in part at any time prior to the time when the Option or portion thereof becomes unexercisable under Section 3.2; provided, however, that any partial exercise shall be for whole shares of Common Stock only. Section 4.3 - Manner of Exercise An Option, or any exercisable portion thereof, may be exercised solely by delivering to the Secretary or his office all of the following prior to the time when the Option or such portion becomes unexercisable under Section 3.2: (a) Notice in writing signed by the Optionee or the other person then entitled to exercise the Option or portion thereof, stating that the Option or portion thereof is thereby exercised, such notice complying with all applicable rules established by the Committee; (b) Full payment (in cash, by check or by a combination thereof) for the shares with respect to which such Option or portion thereof is exercised; (c) A bona fide written representation and agreement, in a form satisfactory to the Committee, signed by the Optionee or other person then entitled to exercise such Option or portion thereof, stating that the shares of stock are being acquired for his own account, for investment and without any present intention of distributing or reselling said shares or any of them except as may be permitted under the Securities Act of 1933, as amended (the "Act"), and then applicable rules and regulations thereunder, and that the Optionee or other person then entitled to exercise such Option or portion thereof will indemnify the Company against and hold it free and harmless from any loss, damage, expense or liability resulting to the Company if any sale or distribution of the shares by such person is contrary to the representation and agreement referred to above; provided, however, that the Committee may, in its absolute discretion, take whatever additional actions it deems appropriate to ensure the observance and performance of such representation and agreement and to effect compliance with the Act and any other federal or state securities laws or regulations; 10 (d) Full payment to the Company of all amounts which, under federal, state or local law, it is required to withhold upon exercise of the Option; and (e) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by any person or persons other than the Optionee, appropriate proof of the right of such person or persons to exercise the option. Without limiting the generality of the foregoing, the Committee may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of shares acquired on exercise of an Option does not violate the Act, and may issue stop-transfer orders covering such shares. Share certificates evidencing stock issued on exercise of this Option shall bear an appropriate legend referring to the provisions of subsection (c) above and the agreements herein. The written representation and agreement referred to in subsection (c) above shall, however, not be required if the shares to be issued pursuant to such exercise have been registered under the Act, and such registration is then effective in respect of such shares. Section 4.4 - Conditions to Issuance of Stock Certificates The shares of stock deliverable upon the exercise of an Option, or any portion thereof, may be either previously authorized but unissued shares or issued shares which have then been reacquired by the Company. Such shares shall be validly issued, fully paid and nonassessable. The Company shall not be required to issue or deliver any certificate or certificates for shares of stock purchased upon the exercise of an Option or portion thereof prior to fulfillment of all of the following conditions: (a) The obtaining of approval or other clearance from any state or federal governmental agency which the Committee shall, in its absolute discretion, determine to be necessary or advisable; and (b) The lapse of such reasonable period of time following the exercise of the Option as the Committee may from time to time establish for reasons of administrative convenience. Section 4.5 - Rights as Stockholder The holder of an Option shall not be, nor have any of the rights or privileges of, a stockholder of the Company in respect of any shares purchasable upon the exercise of the Option or any portion thereof unless and until certificates representing such shares shall have been issued by the Company to such holder. ARTICLE V MISCELLANEOUS Section 5.1 - Administration 11 The Committee shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules. All actions taken and all interpretations and determinations made by the Committee shall be final and binding upon the Optionee, the Company and all other interested persons. No member of the Committee shall be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or the Options. In its absolute discretion, the Board of Directors may at any time and from time to time exercise any and all rights and duties of the Committee under the Plan and this Agreement. Section 5.2 - Options Not Transferable Except as provided in the Management Stockholder's Agreement, neither the Options nor any interest or right therein or part thereof shall be liable for the debts, contracts or engagements of the Optionee or his successors in interest or shall be subject to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other means whether such disposition be voluntary or involuntary or by operation of law by judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy), and any attempted disposition thereof shall be null and void and of no effect; provided, however, that this Section 5.2 shall not prevent transfers by will or by the applicable laws of descent and distribution. Section 5.3 - Shares to Be Reserved The Company shall at all times during the term of the Options reserve and keep available such number of shares of stock as will be sufficient to satisfy the requirements of this Agreement. Section 5.4 - Notices Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of its Secretary, and any notice to be given to the Optionee shall be addressed to him at the address given beneath his signature hereto. By a notice given pursuant to this Section 5.4, either party may hereafter designate a different address for notices to be given to him. Any notice which is required to be given to the Optionee shall, if the Optionee is then deceased, be given to the Optionee's personal representative if such representative has previously informed the Company of his status and address by written notice under this Section 5.4. Any notice shall have been deemed duly given when enclosed in a properly sealed envelope or wrapper addressed as aforesaid, deposited (with postage prepaid) in a post office or branch post office regularly maintained by the United States Postal Service, or when sent by overnight delivery or telecopy. Section 5.5 - Titles Titles are provided herein for convenience only and are not to serve as a basis for interpretation or construction of this Agreement. 12 Section 5.6 - Applicability of Plan and Management Stockholder's Agreement The Options and the shares of Common Stock issued to the Optionee upon exercise of the Options shall be subject to all of the terms and provisions of the Plan and the Management Stockholder's Agreement, to the extent applicable to the Options and such shares. In the event of any conflict between this Agreement and the Plan, the terms of the Plan shall control. In the event of any conflict between this Agreement or the Plan and the Management Stockholder's Agreement, the terms of the Management Stockholder's Agreement shall control. Section 5.7 - Amendment This Agreement may be amended only by a writing executed by the parties hereto which specifically states that it is amending this Agreement. Section 5.8 - Governing Law The laws of the State of Delaware (or if the Company reincorporates in another state, the laws of that state) shall govern the interpretation, validity and performance of the terms of this Agreement regardless of the law that might be applied under principles of conflicts of laws. Section 5.9 - Jurisdiction Any suit, action or proceeding against the Optionee with respect to this Agreement, or any judgment entered by any court in respect of any thereof, may be brought in any court of competent jurisdiction in the State of Delaware (or if the Company reincorporates in another state, in that state) or New York, as the Company may elect in its sole discretion, and the Optionee hereby submits to the non-exclusive jurisdiction of such courts for the purpose of any such suit, action, proceeding or judgment. The Optionee hereby irrevocably waives any objections which he may now or hereafter have to the laying of the venue of any suit, action or proceeding arising out of or relating to this Agreement brought in any court of competent jurisdiction in the State of Delaware (or if the Company reincorporates in another state, in that state) or New York, and hereby further irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in any inconvenient forum. No suit, action or proceeding against the Company with respect to this Agreement may be brought in any court, domestic or foreign, or before any similar domestic or foreign authority other than in a court of competent jurisdiction in the State of Delaware (or if the Company reincorporates in another state, in that state) or New York, and the Optionee hereby irrevocably waives any right which he may otherwise have had to bring such an action in any other court, domestic or foreign, or before any similar domestic or foreign authority. The Company hereby submits to the jurisdiction of such courts for the purpose of any such suit, action or proceeding. The Optionee hereby irrevocably and unconditionally waives trial by jury in any legal action or proceeding in relation to this Agreement and for any counterclaim therein. 13 IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto. Amphenol Corporation By /s/ Edward C. Wetmore ----------------------------------- Name: Edward C. Wetmore Title: Secretary and General Counsel /s/ Timothy F. Cohane - ----------------------------- - ----------------------------- TIMOTHY F. COHANE - ----------------------------- 65 Pine Brook Court Cheshire, CT 06410 - ----------------------------- Address Timothy F. Cohane's Taxpayer Identification Number: 045 46 8703 - ----------------------------- EX-27 15 FDS
5 0000820313 AMPHENOL CORPORATION 1,000 6-MOS DEC-31-1997 JAN-01-1997 JUN-30-1997 10,065 0 84,723 (2,014) 163,507 269,699 265,807 (164,124) 764,891 124,952 0 0 0 20 (353,081) 764,891 438,769 438,769 283,985 283,985 0 0 (20,671) 55,278 22,007 33,271 0 (12,845) 0 20,426 .87 .87
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