THIRD AMENDED AND RESTATED CREDIT AGREEMENT among SWITCH & DATA HOLDINGS, INC., as the Borrower THE INSTITUTIONS PARTY HERETO FROM TIME TO TIME AS LENDERS, as the Lenders, DEUTSCHE BANK AG NEW YORK BRANCH, as the Administrative Agent, CANADIAN...

Exhibit 10.6

EXECUTION COPY

THIRD AMENDED AND RESTATED

CREDIT AGREEMENT

among

SWITCH & DATA HOLDINGS, INC.,

as the Borrower

THE INSTITUTIONS PARTY HERETO

FROM TIME TO TIME AS LENDERS,

as the Lenders,

DEUTSCHE BANK AG NEW YORK BRANCH,

as the Administrative Agent,

CANADIAN IMPERIAL BANK OF COMMERCE,

and ROYAL BANK OF CANADA

as the Co-Documentation Agents,

CIT LENDING SERVICES CORPORATION

and BNP PARIBAS

as the Co-Syndication Agents,

and

DEUTSCHE BANK SECURITIES, INC.

BNP PARIBAS,

as Joint Lead Arrangers

AMENDED AND RESTATED AS OF

OCTOBER 13, 2005

TABLE OF CONTENTS


		Page
ARTICLE I. DEFINITIONS		1

Section 1.1.	Defined Terms	1
Section 1.2.	Accounting Terms; Utilization of GAAP for Purposes of Calculations Under Agreement	36
Section 1.3.	Other Definitional Provisions and Rules of Construction	36

ARTICLE II. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS		38

Section 2.1.	Commitments; Making of Loans; the Register; Notes	38
Section 2.2.	Letters of Credit	42
Section 2.3.	Interest on the Loans	47
Section 2.4.	Fees	50
Section 2.5.	Repayments, Prepayments and Reductions in Commitments; General Provisions Regarding Payments	51
Section 2.6.	Special Provisions Governing Eurodollar Rate Loans	57
Section 2.7.	Increased Costs; Taxes; Capital Adequacy	59
Section 2.8.	Obligation of the Lenders to Mitigate	63

ARTICLE III. CONDITIONS PRECEDENT TO THE EFFECTIVE DATE AND TO ALL LOANS ON THE EFFECTIVE DATE		64

Section 3.1.	Conditions Precedent to the Effective Date and Loans	64
Section 3.2.	Conditions Precedent to All Loans	69

ARTICLE IV. REPRESENTATIONS AND WARRANTIES		70

Section 4.1.	Organization, Powers, Qualification, Good Standing, Business and Subsidiaries	70
Section 4.2.	Authorization of Borrowing, etc	71
Section 4.3.	Solvency	72
Section 4.4.	Financial Condition	72
Section 4.5.	No Material Adverse Effect	73
Section 4.6.	Title to Properties; Liens; Real Property; Accounts	73
Section 4.7.	Litigation; Adverse Facts	73
Section 4.8.	Payment of Taxes	74
Section 4.9.	Performance of Agreements; Material Contracts	74
Section 4.10.	Governmental Regulation	74
Section 4.11.	Securities Activities	74
Section 4.12.	Labor Matters	75
Section 4.13.	Certain Fees	75

TABLE OF CONTENTS

(continued)


		Page
Section 4.14.	Environmental Protection	75
Section 4.15.	Matters Relating to Collateral	76
Section 4.16.	Immunity	77
Section 4.17.	Additional Matters	77
Section 4.18.	Pro Forma Leverage Ratio on Closing Date	78

ARTICLE V. BORROWER’S AFFIRMATIVE COVENANTS		78

Section 5.1.	Financial Statements and Other Reports	78
Section 5.2.	Performance of Obligations; Conduct of Business	83
Section 5.3.	Projections	83
Section 5.4.	Existence	84
Section 5.5.	Payment of Obligations	84
Section 5.6.	Maintenance of Properties; Insurance	84
Section 5.7.	Inspection; Lender Meeting	85
Section 5.8.	Compliance with Laws; Governmental Actions and Rights of Way	85
Section 5.9.	Environmental Matters	86
Section 5.10.	Payment of Liens	89
Section 5.11.	Additional Actions Related to Collateral	89
Section 5.12.	Further Assurances	92
Section 5.13.	Use of Proceeds	93
Section 5.14.	Intellectual Property	93
Section 5.15.	Interest Rate Protection	94
Section 5.16.	Landlord Consents And Estoppel Agreements	94
Section 5.17.	Unrestricted Subsidiaries and Restricted Subsidiaries	94
Section 5.18.	Redemption and Series C Share Payments	95

ARTICLE VI. BORROWER’S NEGATIVE COVENANTS		95

Section 6.1.	Indebtedness	96
Section 6.2.	Liens and Related Matters	97
Section 6.3.	Change of Filing Location	98
Section 6.4.	Change of Name	98
Section 6.5.	Investments; Joint Ventures	98
Section 6.6.	Financial Covenants	98
Section 6.7.	Restriction on Fundamental Changes; Asset Sales and Acquisitions	99
Section 6.8.	Sales and Lease-Backs	100
Section 6.9.	Sale or Discount of Receivables	100

TABLE OF CONTENTS

(continued)


		Page
Section 6.10.	Transactions with Shareholders and Affiliates	101
Section 6.11.	Certain Restrictions on Changes to Charter Documents	102
Section 6.12.	Certain Restrictions in Respect of Material Contracts	102
Section 6.13.	Limitations on Restricted Actions	103
Section 6.14.	Nature of Business	103
Section 6.15.	Fiscal Year	103
Section 6.16.	Restricted Payments	103
Section 6.17.	Accounts	104
Section 6.18.	Funding of Foreign Subsidiaries	104
Section 6.19.	Termination of Real Estate Leases; Lease Litigation Cost	104
Section 6.20.	Limitations on Unrestricted Subsidiaries	104
Section 6.21.	Limitations on Uses of Proceeds of Canadian Subsidiary Contribution and Canadian Revolver Note.	105

ARTICLE VII. EVENTS OF DEFAULT		105

Section 7.1.	Failure to Make Payments When Due	105
Section 7.2.	Default Under Other Indebtedness	105
Section 7.3.	Breach of Warranty	106
Section 7.4.	Involuntary Bankruptcy Proceeding, Etc	106
Section 7.5.	Voluntary Bankruptcy Proceeding, Etc	106
Section 7.6.	Judgments	106
Section 7.7.	Dissolution	107
Section 7.8.	Change in Control	107
Section 7.9.	Non-Performance of Certain Covenants and Obligations	107
Section 7.10.	Impairment of Material Contract	107
Section 7.11.	Default Under or Termination of Material Contracts	107
Section 7.12.	Default Under or Termination of Governmental Actions	108
Section 7.13.	Failure of Guaranty or Other Loan Document; Repudiation of Obligations	108
Section 7.14.	Criminal Proceeding	108
Section 7.15.	ERISA	108
Section 7.16.	Initial Remedies	109

ARTICLE VIII. AGENTS		110

Section 8.1.	Appointment	110
Section 8.2.	Powers and Duties; General Immunity	111
Section 8.3.	Representations and Warranties; No Responsibility for Appraisal of Credit Worthiness	112

iii

TABLE OF CONTENTS

(continued)


		Page
Section 8.4.	Right to Indemnity	113
Section 8.5.	Successor Agents	113
Section 8.6.	Intercreditor Agreement, Collateral Documents and Subsidiary Guaranties	113
Section 8.7.	Application of Proceeds	114

ARTICLE IX. MISCELLANEOUS		115

Section 9.1.	Assignments and Participations in Loans	115
Section 9.2.	Expenses	118
Section 9.3.	Indemnity	119
Section 9.4.	Set-Off; Security Interest in Deposit Accounts	120
Section 9.5.	Ratable Sharing	121
Section 9.6.	Amendments and Waivers	121
Section 9.7.	Independence of Covenants	123
Section 9.8.	Notices	123
Section 9.9.	Survival of Representations, Warranties and Agreements	124
Section 9.10.	Failure or Indulgence Not Waiver; Remedies Cumulative	124
Section 9.11.	Marshaling; Payments Set Aside	124
Section 9.12.	Severability	125
Section 9.13.	Obligations Several; Independent Nature of the Lenders’ Rights	125
Section 9.14.	Effectiveness	125
Section 9.15.	Headings	125
Section 9.16.	Governing Law; Entire Agreement	125
Section 9.17.	Successors and Assigns	125
Section 9.18.	Consent to Jurisdiction and Service of Process	126
Section 9.19.	Waiver of Jury Trial	126
Section 9.20.	Limited Recourse	127
Section 9.21.	Limitation of Liability	127
Section 9.22.	Satisfaction	127
Section 9.23.	Counterparts; Effectiveness	127
Section 9.24.	Confidentiality	128
Section 9.25.	Amounts in Canadian Dollars; Judgment Currency	129
Section 9.26.	USA Patriot Act Notice	129

Schedules


Schedule A		Pre-Effective Date Indebtedness
Schedule 1.1.A		Colocation Facilities
Schedule 1.1.B		Colocation Leases
Schedule 1.1.D		Permitted Investments
Schedule 1.1.E		Permitted Liens
Schedule 2.1		Lenders’ Commitments
Schedule 3.1.A		Pledged Accounts
Schedule 3.1.B		Blocked Accounts
Schedule 4.1.C		Capital Structure
Schedule 4.1.D		Options; Warrants; Special Junior Stock
Schedule 4.2		Governmental Actions
Schedule 4.4		Contingent Obligations, Liabilities and Taxes
Schedule 4.6		Title to Properties; Liens; Real Property; Accounts
Schedule 4.7		Litigation; Adverse Facts
Schedule 4.9		Material Contracts
Schedule 4.9.B		Specified Material Contracts
Schedule 4.12		Labor Matters
Schedule 4.13		Broker’s Fees
Schedule 4.14		Environmental Matters
Schedule 4.15.A		Filings and Other Actions
Schedule 4.15.D		Chief Executive Offices
Schedule 4.17		Intellectual Property
Schedule 5.6		Insurance
Schedule 6.1		Indebtedness
Schedule 6.6		Financial Covenants
Schedule 6.12		Termination of Material Contracts

Exhibits


Exhibit A		Form of Assignment Agreement
Exhibit B		Form of Certificate Regarding Non–Bank Status
Exhibit C		Form of Closing Date Certificate
Exhibit D		Form of Compliance Certificate
Exhibit E		Form of Securities Accounts and Control Agreement
Exhibit F		Form of Loan/Letter of Credit Certificate
Exhibit G		Form of Loan/Letter of Credit Request
Exhibit H		Form of Notice of Continuation/Conversion
Exhibit I		Form of Solvency Certificate
Exhibit J		Form of Guaranty Agreement
Exhibit K		Form of Pledge Agreement
Exhibit L		Form of Security Agreement
Exhibit M-1		Form of Term Loan A Note
Exhibit M-2		Form of Term Loan B Note
Exhibit M-3		Form of Revolving Loan Note
Exhibit N		Form of Estoppel Certificate and Consent
Exhibit O		Form of Blocked Account Agreement
Exhibit P		Form of Borrower Group Release
Exhibit Q		Form of Intercreditor Agreement

This THIRD AMENDED AND RESTATED CREDIT AGREEMENT (as amended, supplemented, amended and restated or otherwise modified from time to time, this “Agreement”), is entered into as of October 13, 2005, among SWITCH & DATA HOLDINGS, INC., a Delaware corporation (the “Borrower”), THE FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTIES HERETO AS LENDERS (each individually referred to herein as a “Lender” and, collectively, as the “Lenders”), DEUTSCHE BANK AG NEW YORK BRANCH (“DBAG”), as administrative agent for the Lenders and as collateral agent for the Secured Parties (in such capacities, the “Administrative Agent”), CANADIAN IMPERIAL BANK OF COMMERCE and ROYAL BANK OF CANADA, as the co-documentation agents for the Lenders (in such capacity, the “Co-Documentation Agents”), CIT LENDING SERVICES CORPORATION and BNP PARIBAS, as the co-syndication agents for the Lenders (in such capacity, the “Co-Syndication Agents”) and DEUTSCHE BANK SECURITIES INC. and BNP PARIBAS as the joint lead arrangers (in such capacity, the “Lead Arrangers”).

WITNESSETH

A. The Borrower, certain of the Lenders, and the Administrative Agent are parties to a Credit Agreement dated as of January 26, 2001, as amended and restated by an Amended and Restated Credit Agreement dated as of March 14, 2003 and a Second Amended and Restated Credit Agreement, dated as of March 4, 2004 (the “Original Credit Agreement”).

B. Certain of the Lenders have made loans to the Borrower pursuant to the Original Credit Agreement. The current principal balances of the outstanding Loans to the Borrower are set forth on Schedule A attached hereto (the “Pre-Effective Date Indebtedness”).

C. The Parent and other members of the Borrower Group have executed Guaranty Agreements pursuant to which such Persons have guaranteed the Obligations on the terms set forth therein.

D. Upon the occurrence of the Effective Date, the parties have agreed to amend and restate the Original Credit Agreement as set forth herein.

NOW, THEREFORE, the Borrower, the Lenders, the Agents and the Lead Arrangers agree that as of the Effective Date (as hereinafter defined) the Original Credit Agreement shall be amended and restated in its entirety as set forth herein, and the parties hereto agree as follows:

ARTICLE I.

DEFINITIONS

Section 1.1. Defined Terms. Capitalized words and phrases used and not otherwise defined elsewhere in this Agreement shall have the following meanings:

“Accounts” means the securities accounts (as such term is defined in the UCC) of any member of the Borrower Group pledged to the Administrative Agent, for the benefit of the Secured Parties, by any member of the Borrower Group in accordance with the terms of this Agreement and the other Loan Documents.

“Adjusted Eurodollar Rate” means, with respect to any Eurodollar Rate Loan for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the Eurodollar Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.

“Administrative Agent” has the meaning assigned to that term in the introductory paragraph of this Agreement and includes each of its successors and assigns.

“Affected Lender” has the meaning assigned to that term in Section 2.6.C.

“Affected Loans” has the meaning assigned to that term in Section 2.6.C.

“Affiliate” as applied to any Person, means any other Person directly or indirectly controlling, controlled by, or under direct or indirect 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 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. Notwithstanding anything to the contrary herein, for the purposes of the Loan Documents, no Agent nor any Affiliate thereof shall be an Affiliate of any member of the Borrower Group.

“Agents” means the collective reference to the Administrative Agent, the Co-Documentation Agents, the Co-Syndication Agents, the Lead Arrangers and any Supplemental Agent.

“Agreement” has the meaning assigned to that term in the introductory paragraph of this agreement.

“Applicable Margin” for each Loan means (a) from and after the Closing Date to the date that a Compliance Certificate is delivered by the Borrower to the Administrative Agent with respect to the fiscal quarter ended December 31, 2005, 4.00% per annum for Term Loan A Eurodollar Rate Loans and Revolving Loan Eurodollar Rate Loans, 4.25% for Term Loan B Eurodollar Rate Loans, 3.00% per annum for Term Loan A Base Rate Loans and Revolving Loan Base Rate Loans, and 3.25% per annum for Term Loan B Base Rate Loans; and (B) from and after the date that clause (a) of this definition is no longer applicable, for the period from each day of delivery of any certificate delivered in accordance with the following sentence (each a “Start Date”) to and including the applicable End Date described below, a percentage per annum based on the then-existing Consolidated Leverage Ratio as set forth below:


Consolidated Leverage Ratio	Revolving Loan and Term Loan A Base Rate Loans		Term Loan B Base Rate Loans		Revolving Loan and Term Loan A Eurodollar Rate Loans		Term Loan B Eurodollar Rate Loans
Greater than or equal to 3.50:1.00	3.00	%	3.25	%	4.00	%	4.25	%
Greater than or equal to 2.50:1.00 and less 3.50:1.00	2.75	%	3.25	%	3.75	%	4.25	%
Less than 2.50 :1.00	2.50	%	3.00	%	3.50	%	4.00	%

For purposes of calculating the Applicable Margin under clause (b) of this definition, the Consolidated Leverage Ratio shall be determined based on the delivery of a Compliance Certificate delivered by the Borrower to the Administrative Agent within 45 days after the last day of any fiscal quarter of the Parent (commencing with its fiscal quarter ending on December 31, 2005), which certificate shall set forth the calculation of the Consolidated Leverage Ratio for the Test Period ended immediately prior to the relevant Start Date and the Applicable Margin which shall be thereafter applicable (until the same is changed or ceases to apply in accordance with the following sentences). The Applicable Margin so determined shall apply, except as set forth in the succeeding sentence, from the Start Date to the earlier of (x) the date on which the next Compliance Certificate is delivered to the Administrative Agent and (y) the date which is 45 days following the last day of the fiscal quarter in which the previous Start Date occurred (the “End Date”), at which time, if no Compliance Certificate has been delivered to the Administrative Agent indicating an entitlement to a different Applicable Margin, the Applicable Margin shall be 4.00% per annum for Term Loan A Eurodollar Rate Loans and Revolving Loan Eurodollar Rate Loans, 4.25% for Term Loan B Eurodollar Rate Loans, 3.00% per annum for Term Loan A Base Rate Loans and Revolving Loan Base Rate Loans, and 3.25% per annum for Term Loan B Base Rate Loans. Notwithstanding anything to the contrary contained above in this definition, the Applicable Margin shall also be 4.00% per annum for Term Loan A Eurodollar Rate Loans and Revolving Loan Eurodollar Rate Loans, 4.25% for Term Loan B Eurodollar Rate Loans, 3.00% per annum for Term Loan A Base Rate Loans and Revolving Loan Base Rate Loans, and 3.25% per annum for Term Loan B Base Rate Loans at all times during which there shall exist a Potential Event of Default or an Event of Default. Nothing in this paragraph is intended to limit or affect in any way the rights and remedies of the Administrative Agent and the Lenders (including, without limitation, the right to demand default interest) upon the occurrence of an Event of Default.

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

“Asset Sale” means the sale or issuance by any member of the Borrower Group to any Person of (i) any of the stock of any of such Person’s Subsidiaries, (ii) substantially all of the assets of any division or line of business of any member of the Borrower Group, or (iii) any other assets (whether tangible or intangible) of any member of the Borrower Group (other than Excluded Asset Sales).

“Assignment Agreement” means an Assignment Agreement in substantially the form of Exhibit A hereto.

“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, a rate per annum equal to the greater of (i) the Prime Rate or (ii) the rate which is 1/2 of 1% in excess of the Federal Funds Effective Rate. Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective from and including the effective date of such change in the Prime Rate or the Federal Funds Effective Rate, as the case may be.

“Base Rate Loans” means Loans bearing interest at rates determined by reference to the Base Rate as provided in Section 2.3.

“Blocked Account Agreement” means each agreement that any member of the Borrower Group may enter into in substantially the form of Exhibit O with such modifications as the Administrative Agent may reasonably request or consent to.

“Blocked Accounts” means the accounts of any member of the Borrower Group subject to a Blocked Account Agreement in accordance with the terms of this Agreement.

“Borrower” has the meaning assigned to such term in the introductory paragraph of this Agreement.

“Borrower Group” means the Parent and each of its direct or indirect Restricted Subsidiaries, including the Canadian Subsidiaries.

“Borrower Group Release” means the Release, executed and delivered by the members of the Borrower Group on or before the Closing Date substantially in the form of Exhibit P.

“Business Day” means (i) for all purposes other than as covered by clauses (ii) and (iii) below, 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 the State of New York are authorized or required by law or other governmental action to close, (ii) with respect to all notices, determinations, fundings and payments in connection with the Adjusted Eurodollar Rate or any Eurodollar Rate Loans, any day that is a Business Day described in clause (i) above and that is also a day for trading by and between banks in Dollar deposits in the London interbank market, and (iii) with respect to all notices, determinations, fundings and payments in connection with Letters of Credit, any day that is a Business Day described in clause (i) above (and, if applicable, clause (ii) above) that is also not a day on which banking institutions are authorized or required by law or other governmental action to close in the jurisdiction in which the Issuing Bank for such Letter of Credit is located.

“2004 Canadian Investment Note” means that certain Canadian Investment Note, dated as of March 11, 2004 executed and delivered by Switch and Data Toronto

Ltd in favor of Switch and Data Enterprises, Inc. and endorsed in favor of Deutsche Bank AG New York Branch, in its capacity as Administrative Agent, in the original principal amount of $2,250,000, as amended from time to time with the written consent of the Administrative Agent.

“2005 Canadian Investment Note” has the meaning assigned to such term in clause (viii) of the definition of Permitted Investments herein.

“Canadian Revolving Note” has the meaning assigned to such term in clause (x) of Section 6.1 herein.

“Canadian Subsidiaries” means Switch and Data Toronto, Ltd., an Ontario corporation, and such other subsidiaries organized under the laws of Canada, and organized or acquired in accordance of Section 5.11.B hereof.

“Canadian Subsidiary Contribution” means the contribution of up to $4,000,000 in the aggregate to one or more of the Canadian Subsidiaries, of which amount of up to $4,000,000 at least two-thirds thereof shall be advanced in the form of a loan evidenced by the 2005 Canadian Investment Note.

“Capital Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is accounted for as a capital lease on the balance sheet of that Person.

“Capital Lease Obligations” means, as applied to any Person, the obligations of such Person to pay rent or other amounts under any Capital Lease, the amount of which obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP.

“Cash” means (i) money or (ii) currency.

“Cash Equivalents” means:

(i) readily marketable direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of acquisition thereof;

(ii) investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, a credit rating of at least A-1 from S&P or at least P-1 from ▇▇▇▇▇’▇;

(iii) bankers’ acceptances, time deposit accounts, certificates of deposit and money market deposits maturing within 180 days of the date of acquisition thereof issued by a Lender or a bank or trust company which is organized under the laws of the United States of America, any state thereof or any member of the EMU, and which bank or trust company has capital, surplus and undivided profits aggregating in excess of U.S.

$50,000,000 (or the foreign currency equivalent thereof) and has outstanding debt which is rated at least A-1 by S&P or at least P-1 by ▇▇▇▇▇’▇;

(iv) money market mutual funds registered under the U.S. Investment Company Act of 1940, as amended, having a rating in the highest investment category by S&P and ▇▇▇▇▇’▇; and

(v) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (i) above and entered into with a financial institution satisfying the criteria described in clause (iii) above.

“Casualty Proceeds” means all payments received by the Administrative Agent or any member of the Borrower Group from any insurer in respect of any Event of Loss, but excluding business interruption insurance or delayed opening of business insurance and payments in respect of liability policies.

“Certificate Regarding Non-Bank Status” means a certificate substantially in the form of Exhibit B hereto delivered by a Lender to the Administrative Agent pursuant to Section 2.7.B(iii).

“Change in Control” means and shall be deemed to have occurred if:

(i) (a) there shall have occurred the sale, lease, transfer or other disposition, in one or a series of related transactions, of all or substantially all of the assets of the members of the Borrower Group taken as a whole to any “person” or “group” (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act) or (b) an event or series of events shall have occurred as a result of which any “person” or “group” (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act), other than the controlling investors (as defined in clause (ii) of this definition), shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act), directly or indirectly, of fifty percent (50%) or more of the combined voting power of or economic interests in the outstanding Equity Interests of Parent, or (c) an event or series of events shall have occurred as a result of which any “person” or “group” other than Persons who Control the respective controlling investors on the Closing Date, shall have acquired beneficial ownership, directly or indirectly, of fifty percent (50%) or more of the combined voting power of or economic interests in the outstanding Equity Interests of any of the controlling investors, provided that the events described in this clause (c) shall only constitute a Change of Control if, at or at any after the events described in this clause (c) occur, the controlling investor or controlling investors whose Equity Interests were acquired become the beneficial owner(s), directly or indirectly, of fifty percent (50%) or more of the combined voting power of or economic interests in the outstanding Equity Interests of Parent;

(ii) during any period of twelve consecutive months, individuals who at the beginning of such period constituted the board of directors of the Borrower or Parent (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower or Parent was approved by Summit/Switch

& Data Partners, LP, ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇, ▇▇, ▇▇▇▇▇▇▇▇▇ Group, LLC, CapStreet Co-Investment II-A, L.P., CEA Capital Partners USA, LP, CEA Capital Partners USA CI, LP, Seaport Investments, LLC or Seaport Capital Partners II, LP (collectively, the “controlling investors”) or by a vote of a majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved), cease for any reason to constitute a majority of the board of directors of the Borrower or Parent then in office, provided, however, that a “Change in Control” shall not be deemed to have occurred as a result of any director being appointed or terminated by the controlling investors;

(iii) the holders of Equity Interests of the Borrower shall approve any plan or proposal for the liquidation or dissolution of such entity or entities; or

(iv) the Parent shall cease to own, directly or indirectly, 100% of the voting and economic interests in Borrower or shall cease to own, directly or indirectly, 100% of the voting and economic interests in any of the Subsidiaries that own assets acquired in any acquisition listed on Schedule 4.9.

“Class” when used in reference to any Loan, refers to whether such Loan is Term Loan A, Term Loan B or a Revolving Loan and, when used in reference to any Commitment, refers to whether such Commitment is a Term Loan A Commitment, a Term Loan B Commitment or a Revolving Loan Commitment.

“Closing Date” means October 13, 2005.

“Closing Date Certificate” means a certificate of a Responsible Officer of the Borrower, substantially in the form of Exhibit C hereto, delivered to the Administrative Agent and the Lenders by such Responsible Officer on the Closing Date.

“Co-Documentation Agents” has the meaning assigned to that term in the introductory paragraph to this Agreement.

“Co-Syndication Agents” has the meaning assigned to that term in the introductory paragraph to this Agreement.

“Code” means the Internal Revenue Code of 1986, amendments thereto, and successor statutes, and regulations, rulings and guidance promulgated or issued thereunder.

“Collateral” means, collectively, all of the real, personal and mixed property (including Accounts and Equity Interests) in which Liens are purported to be granted pursuant to the Collateral Documents as security for the Obligations.

“Collateral Documents” means each Pledge Agreement, each Security Agreement, each Guaranty Agreement, each Consent, each Control Agreement, and all other instruments or documents delivered by a Loan Party pursuant to this Agreement or any of the other Loan Documents in order to grant to the Administrative Agent, for the

benefit of the Secured Parties, a Lien on any real, personal or mixed property of that Loan Party as security for the Obligations.

“Colocation Facility” means any location (whether owned or leased) at which any member of the Borrower Group principally houses and/or manages voice and/or data networking and other communications equipment for itself or any of its customers, including without limitation those Colocation Facilities listed on Schedule 1.1.A hereto.

“Colocation Lease” means any lease pursuant to which a member of the Borrower Group leases real property in respect of a Colocation Facility, including without limitation those Colocation Leases listed on Schedule 1.1.B hereto.

“Commitments” means the Term Loan A Commitments, the Term Loan B Commitments and the Revolving Loan Commitments.

“Compliance Certificate” means a certificate substantially in the form of Exhibit D hereto delivered to the Administrative Agent and the Lenders by the Borrower.

“Consents” means each Landlord Consent and Estoppel Agreement and each consent executed by the applicable counterparty in connection with certain revenue contracts and leases of certain members of the Borrower Group.

“Consolidated Capital Expenditures” means, for any period, the aggregate of all expenditures by the members of the Borrower Group during such period for the acquisition or leasing (pursuant to a Capital Lease) of fixed or capital assets or additions to equipment (including replacements, capitalized repairs and improvements during such period) (including, for the avoidance of any doubt, the Canadian Subsidiary Contribution) which would be capitalized or reflected as accrued capital expenditures, under GAAP on a consolidated cash flow statement of the members of the Borrower Group.

“Consolidated EBITDA” means, for any period, Consolidated Net Income for such period plus, without duplication and to the extent reflected as a charge in the statement of such Consolidated Net Income for such period, the sum of:

(i) income and franchise tax expense;

(ii) Consolidated Interest Expense of the members of the Borrower Group, amortization or write-off of debt discount and debt issuance costs and commissions, discounts and other fees and charges associated with Indebtedness (including, in the case of the Borrower, the Loans and Letters of Credit);

(iii) depreciation and amortization expense;

(iv) amortization of intangibles (including goodwill) and organization costs;

(v) any other non-cash charges;

(vi) any extraordinary, unusual or non-recurring charges incurred in connection with the termination or cancellation of any of the Colocation Leases appearing on Schedule 4.9 prior to its stated expiration date and any litigation or settlement regarding any such termination or cancellation or any claim relating thereto;

(vii) adjustments to net income arising from new guidance with respect to Financial Accounting Standards Board Statement Number 145 in respect of non-cash deferred rent;

(viii) any reasonable and documented legal, accounting and rating agency fees, and ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ filing expenses, in each case incurred by Borrower in respect of the terminated acquisition of The Telx Group, Inc., a Delaware corporation, in an amount not to exceed $700,000 in the aggregate; and

(ix) any reasonable and documented legal, accounting and/or other fees, in each case incurred by Borrower in respect of its terminated initial public offering efforts, in an amount not to exceed $620,000 in the aggregate;

and minus, to the extent included in the statement of such Consolidated Net Income for such period, the sum of (a) interest income (except to the extent deducted in determining Consolidated Interest Expense), (b) any extraordinary, unusual or non-recurring income or gains (including, whether or not otherwise includable as a separate item in the statement of such Consolidated Net Income for such period, gains on the sales of assets outside of the ordinary course of business), including without limitation any income from or as a result of the cancellation or termination of any customer contract or service contract, provided that the first $1,000,000 in the aggregate of income from or as a result of the cancellation or termination of customer contracts and service contracts in any fiscal year shall not be subtracted from Consolidated EBITDA pursuant to this clause (b), and (c) any other non-cash income, all as determined on a consolidated basis.

“Consolidated Fixed Charge Coverage Ratio” means, as at the last day of any Fiscal Quarter, the ratio of (i) Consolidated EBITDA for the four preceding Fiscal Quarters ended on such date to (ii) Consolidated Fixed Charges for such Fiscal Quarters.

“Consolidated Fixed Charges” means, for any period, the sum (without duplication) of (i) Consolidated Interest Expense for such period, (ii) payment of cash income taxes made by any member of the Borrower Group on a consolidated basis during such period, (iii) scheduled payments made or scheduled to be made during such period on account of principal of Indebtedness of any member of the Borrower Group (including scheduled principal payments in respect of the Loans), (iv) Consolidated Capital Expenditures made during such period and (v) cash dividends paid by the Borrower Group on a consolidated basis during such period.

“Consolidated Interest Coverage Ratio” means, as at the last day of any Fiscal Quarter, the ratio of (i) Consolidated EBITDA for the four Fiscal Quarters ended on such date to (ii) Consolidated Interest Expense for the four Fiscal Quarters ending on such date.

“Consolidated Interest Expense” means, for any period, the total cash interest expense (including that attributable to Capital Lease Obligations) of the members of the Borrower Group for such period with respect to all outstanding Indebtedness of the members of the Borrower Group (including all commissions, discounts and other fees and charges owed by members of the Borrower Group with respect to letters of credit and bankers’ acceptance financing and net costs of such Person under Interest Rate Agreements in respect of interest rates to the extent such net costs are allocable to such period in accordance with GAAP, determined on a consolidated basis in accordance with GAAP) minus amounts received by such Person under Interest Rate Agreements in respect of interest rates to the extent such amounts received are allocable to such period in accordance with GAAP, determined on a consolidated basis in accordance with GAAP).

“Consolidated Leverage Ratio” means, as at the last day of any Fiscal Quarter, the ratio of (i) Consolidated Total Debt on such day to (ii) Consolidated EBITDA for the four preceding Fiscal Quarters ended on such date.

“Consolidated Net Income” means, for any period, the consolidated net income (or loss) of the members of the Borrower Group for such period (excluding any such net income derived from a source other than the Colocation Facilities), determined on a consolidated basis in accordance with GAAP; provided, that in calculating Consolidated Net Income of the Borrower Group for any Period, there shall be excluded (i) the income (or deficit) of any Person accrued prior to the date it became a member of the Borrower Group or is merged into or consolidated with any member of the Borrower Group, (ii) the income (or deficit) of any Person (other than a member of the Borrower Group) in which any member of the Borrower Group has an ownership interest, except to the extent that any such income is actually received by a member of the Borrower Group in the form of dividends or similar distributions, (iii) the income (or deficit) of any Unrestricted Subsidiary, in each case to the extent (with respect to positive income) that such income has not been distributed to a member of the Borrower Group organized in the United States whose principal place of business is in the United States, (iv) the income of any member of the Borrower Group to the extent that the declaration or payment of dividends or similar distributions by such member is not at the time permitted by the terms of any Contractual Obligation (other than under any Loan Document) or Legal Requirement applicable to such member.

“Consolidated Total Debt” means, as of any date, the aggregate principal amount of all Indebtedness of the members of the Borrower Group at such date, determined on a consolidated basis in accordance with GAAP.

“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.

“Control” means, with respect to any Person, the possession, directly or indirectly, of the power (i) to vote 50% or more of the securities having ordinary voting

power for the election of directors (or Persons having equivalent management responsibilities) of such Person, or (ii) to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.

“Control Agreement” means a securities account control agreement at any time entered into among the Administrative Agent (for the benefit of the Secured Parties), a securities intermediary and a member of the Borrower Group (in substantially the form of Exhibit E with such modifications as the Administrative Agent may reasonably request or consent to).

“DBSI” has the meaning assigned to such term in the introductory paragraph of this Agreement.

“DBAG” has the meaning assigned to such term in the introductory paragraph of this Agreement.

“Defunct Subsidiary” has the meaning assigned to such term in Section 4.1.C.

“Disposition” means, with respect to any Property, any sale, lease, sale and leaseback, assignment, conveyance, transfer or other disposition thereof, including the issuance of Equity Interests by any Person, and the terms “Dispose” and “Disposed of” shall have correlative meanings.

“Dollar Equivalent” means, on any particular date, with respect to any amount denominated in Canadian Dollars, the amount (as conclusively ascertained by the Administrative Agent absent manifest error) of Dollars which could be purchased by the Administrative Agent (in accordance with its normal banking practices) in the United States foreign currency exchange markets with such amount of such currency at the spot rate of exchange prevailing at or about 11:00 a.m. (New York time) on such date (or, if such foreign currency exchange markets are not open on such date, on the most recent previous day on which such markets were open).

“Dollars” and the sign “$” mean the lawful money of the United States of America.

“Effective Date” means the first date on or after the Closing Date on which the conditions set forth in Sections 3.1 and 3.2 have been satisfied or waived and any Loans are to be made or any Letter of Credit is to be issued.

“Eligible Assignee” means:

(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;

(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;

(v) any entity in connection with a securitization of all or a portion of the amounts payable to or for the benefit of any Lender under the Loan Documents, provided that the rights of such entity under the Loan Documents are serviced or administered for such entity by the relevant Lender or another Eligible Assignee; and

(vi) any Lender and any Affiliate of any Lender and any Approved Fund;

provided that no member of the Borrower Group nor any Affiliate thereof shall be an Eligible Assignee.

“Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA which is, or was at any time during the current calendar year or the six calendar years preceding the date of this Agreement maintained or contributed to by any member of the Borrower Group or any of their respective ERISA Affiliates.

“End Date” shall have the meaning assigned to such term in the definition of Applicable Margin.

“Environmental Claim” means any investigation, notice of violation, claim, action, suit, proceeding, demand, abatement order or other order or directive (conditional or otherwise), by any governmental authority or any other Person, arising (i) pursuant to or in connection with any actual or alleged violation of any Environmental Law, (ii) in connection with any Hazardous Materials or any actual or alleged Hazardous Materials Activity, or (iii) in connection with any actual or alleged damage, injury, threat or harm to health, safety, natural resources or the environment.

“Environmental Laws” means any and all statutes, ordinances, orders, rules, regulations, judgments, Governmental Actions, or any other legally enforceable requirements of governmental authorities with appropriate jurisdiction relating to (i) environmental matters, including those relating to any Hazardous Materials Activity, (ii) the generation, use, storage, transportation or disposal of Hazardous Materials, or (iii) occupational safety and health, land use or the protection of human, plant or animal health or welfare, in any manner applicable to any member of the Borrower Group or any site, location or operation of any member of the Borrower Group including the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9601 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. § 1801 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42 U.S.C. § 7401

et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. §136 et seq.), the Occupational Safety and Health Act (29 U.S.C. § 651 et seq.), the Oil Pollution Act (33 U.S.C. § 2701 et seq.) and the Emergency Planning and Community Right-to-Know Act (42 U.S.C. § 11001 et seq.), each as amended or supplemented, any analogous state or local statutes or laws, and any regulations promulgated pursuant to any of the foregoing.

“Environmental Reports” has the meaning assigned to such term in Section 5.9.

“Equity Interests” means, with respect to any Person, shares of capital stock of (or other ownership or profit interests in) such Person, warrants, options or other rights for the purchase or other acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person, or warrants, rights or options for the purchase or other acquisition from such Person of such shares (or such other interests), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are authorized or otherwise existing on any date of determination.

“ERISA” means the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§1000 et seq., amendments thereto, and successor statutes, and regulations or guidance promulgated thereunder.

“ERISA Affiliate” means, as applied to any Person, (i) any corporation which is a member of a controlled group of corporations within the meaning of Section 414(b) of the Code of which that Person is a member; (ii) any trade or business (whether or not incorporated) which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Code of which that Person is a member; and (iii) any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Code of which that Person, any corporation described in clause (i) above or any trade or business described in clause (ii) above is a member. Any former ERISA Affiliate of any member of the Borrower Group shall continue to be considered an ERISA Affiliate of such member of the Borrower Group within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of such member of the Borrower Group and with respect to liabilities arising after such period for which such member of the Borrower Group could be liable under the Code or ERISA.

“Eurodollar Rate” means, for any Interest Rate Determination Date with respect to an Interest Period for a Eurodollar Rate Loan, the rate per annum appearing on Dow ▇▇▇▇▇ Markets Page 3750 (or on any successor or substitute page of such Service, or any successor to or substitute for such Service, providing rate quotations comparable to those currently provided on such page of such Service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London time, on such Interest Rate Determination Date, at the rate for dollar deposits with a maturity comparable to such Interest Period. In the event that such rate is not available at

such time for any reason, then the “Eurodollar Rate” for such Interest Rate Determination Date shall be the average rate (rounded upwards, if necessary, to the next 1/16 of 1%) at which dollar deposits in amounts comparable to the outstanding principal amount of the Eurodollar Rate Loan with respect to which such Eurodollar Rate will be applicable during such Interest Period and for a maturity comparable to such Interest Period are offered by the principal office of Deutsche Bank AG located in London, England in immediately available funds in the London interbank market at approximately 11:00 a.m., London Time, on such Interest Rate Determination Date.

“Eurodollar Rate Loans” means Loans bearing interest at rates determined by reference to the Adjusted Eurodollar Rate as provided in Section 2.3.

“Event of Default” means each of the events or occurrences set forth in Article VII.

“Event of Loss” means, with respect to any property or asset (tangible or intangible, real or personal), any of the following: (i) any loss, destruction or damage of such property or asset; (ii) any actual condemnation, seizure or taking by exercise of the power of eminent domain or otherwise of such property or asset, or confiscation of such property or asset or the requisition of the use of such property or asset; or (iii) any settlement in lieu of clause (ii) above.

“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and any successor statute.

“Excess Cash Flow” means, for any Fiscal Year, without duplication, (a) Consolidated EBITDA for such Fiscal Year less (b) the sum of (i) Consolidated Fixed Charges for such Fiscal Year plus (ii) any prepayments made in such Fiscal Year in respect of the prior Fiscal Year pursuant to Section 2.5.B(iii)(d) to the extent not included in Consolidated Fixed Charges.

“Excess Cash Flow Application Date” is defined in Section 2.5.B(iii)(d).

“Excluded Asset Sales” means (a) any lease, license or other transfer (but excluding sales) of the right to use a portion of any Colocation Facility to any customer or provider of fiber optic, satellite, wireline or other connectivity to a Colocation Facility in the ordinary course of business, (b) sales of property or equipment that has become worn out, obsolete or damaged or otherwise unsuitable for use in connection with a Permitted Business, (c) Dispositions of property in the ordinary course of business in an amount not exceeding $2,000,000 in the aggregate for all such Dispositions after the Closing Date taken together, or (d) any transfer or assignment by Borrower or a Restricted Subsidiary which is a Guarantor to Borrower or any other Restricted Subsidiary which is a Guarantor.

“FDIC” means the Federal Deposit Insurance Corporation.

“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 the Administrative Agent from three Federal funds brokers of recognized standing selected by the Administrative Agent.

“Fee Letters” means the Structuring Fee Letter dated October 4, 2005, among the Borrower and DBSI, and the Engagement Letter dated October 4, 2005 between the Borrower, the Administrative Agent, and DBSI.

“First Lien Consolidated Leverage Ratio” means, as at the last day of any Fiscal Quarter, the ratio of (i) First Lien Consolidated Total Debt on such day to (ii) Consolidated EBITDA for the four preceding Fiscal Quarters.

“First Lien Consolidated Total Debt” means, as of any date, the aggregate principal amount of all Indebtedness of the members of the Borrower Group at such date arising under and in connection with this Agreement and the other Loan Documents, determined on a consolidated basis in accordance with GAAP.

“First Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that such Lien is the only Lien (other than Permitted Liens) to which such Collateral is subject.

“Fiscal Year” means the fiscal year of the applicable Person, which, for the members of the Borrower Group, begins on January 1 and ends on December 31 of each calendar year, and “Fiscal Quarter” means a corresponding fiscal quarter of such Person.

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

“Funding and Payment Office” means (i) the office of the Administrative Agent located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or (ii) such other office of the Administrative Agent as may from time to time hereafter be designated as such in a written notice delivered by the Administrative Agent to the Borrower and each Lender.

“GAAP” means, subject to the limitations on the application thereof set forth in Section 1.2, generally accepted accounting principles in the United States of America 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 of America, in each case as the same are applicable to the circumstances as of the date of determination.

“Governmental Action” means all permits, authorizations, registrations, consents, approvals, legally enforceable determinations, decrees, waivers, certifications, environmental clearances, legally enforceable notices and licenses of any Governmental Instrumentality with appropriate jurisdiction.

“Governmental Instrumentality” means any national, state or local government (whether domestic or foreign), any political subdivision thereof or any other governmental, quasi-governmental, judicial, public or statutory instrumentality, authority, body, agency, bureau or entity (including any zoning authority, the FDIC, the Comptroller of the Currency or the Federal Reserve Board, any central bank or any comparable authority) or any arbitrator with authority to bind a party at law.

“Guarantor” means each Person that has executed a Guaranty Agreement.

“Guaranty Agreement” means each Guaranty Agreement executed and delivered by Parent or any member of the Borrower Group, other than the Borrower, in each case substantially in the form of Exhibit J hereto, except that the Canadian Subsidiaries shall not be required to execute a Guaranty Agreement, with such modifications as the Administrative Agent may reasonably request or consent to.

“Hazardous Materials” means (i) any chemical, material or substance at any time defined as or included in the definition of “hazardous substances,” “hazardous wastes,” “hazardous materials,” “extremely hazardous waste,” “acutely hazardous waste,” “radioactive waste,” “biohazardous waste,” “pollutant,” “toxic pollutant,” “contaminant,” “restricted hazardous waste,” “infectious waste,” “toxic substances,” or any other comparable term or expression intended to define or classify substances by reason of properties harmful to health, safety or the indoor or outdoor environment (including harmful properties such as ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity, “TCLP toxicity” or “EP toxicity” or words of similar import under any applicable Environmental Laws); (ii) any oil, petroleum, petroleum fraction or petroleum derived substance; (iii) any drilling fluids, produced waters and other wastes associated with the exploration, development or production of crude oil, natural gas or geothermal resources; (iv) any flammable substances or explosives; (v) any radioactive materials; (vi) any asbestos-containing materials; (vii) urea formaldehyde foam insulation; (viii) polychlorinated biphenyls; (ix) pesticides; and (x) any other chemical, material or substance, exposure to which is prohibited or regulated under Environmental Laws.

“Hazardous Materials Activity” means any activity, event or occurrence involving any Hazardous Materials, including the use, manufacture, possession, storage, holding, presence, existence, location, Release, threatened Release, discharge, placement, generation, transportation, processing, construction, treatment, abatement, removal, remediation, disposal, disposition or handling of any Hazardous Materials, and any corrective action or response action with respect thereto.

“Included Taxes” has the meaning assigned to that term in Section 2.7.B.

“Indebtedness,” as applied to any Person means, without duplication,

(i) all indebtedness of such Person for borrowed money;

(ii) all obligations of such Person for the deferred purchase price of property or services (other than trade payables not overdue by more than 90 days incurred in the ordinary course of such Person’s business);

(iii) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments;

(iv) all obligations of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (unless the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property);

(v) that portion of obligations with respect to Capital Leases that is properly classified as a liability on a balance sheet in conformity with GAAP;

(vi) all obligations, contingent or otherwise, of such Person under acceptance, letter of guaranty, letter of credit or similar facilities;

(vii) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any cash payment in respect of any capital stock of or other ownership or profit interest in such Person or any other Person or any warrants, rights or options to acquire such capital stock;

(viii) all obligations of such Person in respect of Interest Rate Agreements;

(ix) all Indebtedness of others referred to in clauses (i) through (viii) above guaranteed directly or indirectly in any manner by such Person, or in effect guaranteed directly or indirectly by such Person through an agreement (a) to pay or purchase such Indebtedness or to advance or supply funds for the payment or purchase of such Indebtedness, (b) to purchase, sell or lease (as lessee or lessor) property, or to purchase or sell services, primarily for the purpose of enabling the debtor to make payment of such Indebtedness or to assure the holder of such Indebtedness against loss, (c) to supply funds to or in any other manner invest in the debtor (including any agreement to pay for property or services irrespective of whether such property is received or such services are rendered), or (d) otherwise to assure a creditor against loss; and

(x) all Indebtedness referred to in clauses (i) through (viii) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by such Person.

All obligations under the Loan Documents shall constitute Indebtedness.

“Indemnified Liabilities” has the meaning assigned to that term in Section 9.3.

“Indemnitee” has the meaning assigned to that term in Section 9.3.

“Intellectual Property” means all patents, trademarks, tradenames, copyrights, technology, know-how and processes used in or necessary for the conduct of the business of any member of the Borrower Group that are material to the condition (financial or otherwise), business or operations of any member of the Borrower Group.

“Intercreditor Agreement” means an Intercreditor Agreement executed and delivered on or before the Closing Date by Administrative Agent and the Second Lien Administrative Agent, and acknowledged by each member of the Borrower Group, substantially in the form of Exhibit Q hereto, together with any amendments or modifications thereto as the Administrative Agent may reasonably request or consent to.

“Interest Payment Date” means (i) with respect to any Base Rate Loan (regardless of whether such Base Rate Loan is a Revolving Loan or a Term 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 Eurodollar Rate 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 Section 2.3.B.

“Interest Rate Agreement” means any interest rate protection or hedge agreement, including any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement or other similar agreement or arrangement, in each case, as entered into by a member of the Borrower Group in accordance with the terms hereof.

“Interest Rate Determination Date” means, with respect to any Interest Period, two Business Days prior to the first day of such Interest Period.

“Investment” means:

(i) any direct or indirect purchase or other acquisition (including through a lease) by a Person of, or of a beneficial interest in, any Securities of, or assets constituting an ongoing business from, any other Person,

(ii) any direct or indirect redemption, retirement, purchase or other acquisition for value by a Person from any other Person, of any equity Securities of any Subsidiary of such other Person, or

(iii) any direct or indirect 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 such Person to any other Person, including all accounts receivable in respect of which that other Person is the account debtor that are not current assets or did not arise from sales to that other Person in the ordinary course of business.

The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment. If any member of the Borrower Group Disposes of any Equity Interests of any Subsidiary thereof or enters into any merger, consolidation or amalgamation, such that, after giving effect to any such Disposition, merger, consolidation or amalgamation, such Person is no longer a Wholly-Owned Subsidiary of a member of the Borrower Group, such member of the Borrower Group which owns such Person shall be deemed to have made an Investment on the date of such Disposition, merger, consolidation or amalgamation equal to the fair market value of the Equity Interests of such Person owned by such member of the Borrower Group after giving effect to such Disposition, merger, consolidation or amalgamation.

“ISP98” has the meaning assigned to that term in Section 2.2.H.

“Issuing Bank” means DBAG, as the issuer of Letters of Credit hereunder for the account of the Borrower, or any other Lender, Affiliate of any Lender or other financial institution reasonably acceptable to the Administrative Agent and the Borrower which may at any time issue a Letter of Credit for the account of the Borrower under this Agreement. If there is more than one Issuing Bank, all references to the “Issuing Bank” shall be deemed to refer to each Issuing Bank or to all Issuing Banks, as the context requires.

“Joint Venture” means a joint venture, partnership or other similar arrangement, whether in corporate, partnership, limited liability company 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.

“Landlord Consent and Estoppel Agreement” means each Landlord Consent and Estoppel Agreement substantially in the form attached hereto as Exhibit N, with such modifications as the Lead Arrangers may reasonably request or consent to.

“Lead Arrangers” has the meaning assigned to that term in the Preamble hereto.

“Legal Requirements” means all laws, statutes, orders, decrees, injunctions, licenses, permits, approvals, authorizations, agreements and regulations of any Governmental Instrumentality having jurisdiction over the matter in question.

“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 Section 9.1; provided that the term “Lenders,” when used in the context of a particular Commitment, shall mean the Lenders having that Commitment.

“Letter of Credit Fee” has the meaning assigned to that term in Section 2.4.A.

“Letter of Credit Obligations” means the sum of the aggregate undrawn amount of all Letters of Credit outstanding, plus the aggregate amount of all drawings under Letters of Credit for which the Borrower has not reimbursed the Issuing Bank.

“Letter of Credit” means any letter of credit issued under Section 2.3 (including without limitation letters of credit, if any, issued pursuant to the Original Credit Agreement) and all amendments, renewals, extensions and replacements thereof.

“Letter of Credit Date” means the date of the issuance of any Letter of Credit.

“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 UCC).

“Loan/Letter of Credit Certificate” means a certificate substantially in the form of Exhibit F hereto delivered by the Borrower to the Administrative Agent pursuant to Section 2.1 or Section 2.2 with respect to a proposed Loan or Letter of Credit.

“Loan/Letter of Credit Request” means a notice substantially in the form of Exhibit G hereto delivered by the Borrower to the Administrative Agent pursuant to Section 2.1.B or Section 2.2.B with respect to a proposed Loan or Letter of Credit.

“Loan Date” means, with respect to any Loan, the date of the making of such Loan.

“Loan Documents” means this Agreement, the Notes, the Collateral Documents, the LOC Documents, the Fee Letters, the Intercreditor Agreement, the Borrower Group Release and all other agreements, certificates, instruments or documents delivered by a Loan Party pursuant to any of the Loan Documents.

“Loan Exposure” means, with respect to any Lender as of any date of determination (i) prior to the termination of the Commitments, that Lender’s Commitments (including all drawn and undrawn portions thereof) and (ii) after the termination of the Commitments, the aggregate outstanding principal amount of the Loans of that Lender.

“Loan Party” means each member of the Borrower Group and any Affiliate of any member of the Borrower Group (other than the Defunct Subsidiaries) which may in each case hereafter become a party to any Loan Document, and “Loan Parties” means all such Persons, collectively.

“Loans” means the Term Loans and the Revolving Loans made by the Lenders pursuant to Section 2.1.A.

“LOC Committed Amount” has the meaning assigned to that term in Section 2.2.A.

“LOC Documents” means, with respect to any Letter of Credit, such Letter of Credit, any amendments thereto, any documents delivered in connection therewith, any

application therefor, and any agreements, instruments, guarantees or other documents (whether general in application or applicable only to such Letter of Credit) governing or providing for (i) the rights and obligations of the parties concerned or at risk or (ii) any collateral security for such obligations.

“LOC Facing Fee” is defined in Section 2.4.

“Majority Term Loan A Lenders” means Term Loan A Lenders having or holding a majority of the sum of the aggregate Term Loan A Loans and Term Loan A Commitments of all of the Term Loan A Lenders.

“Margin Stock” has the meaning assigned to that term in Regulations T, U and X of the Board of Governors of the Federal Reserve System as in effect from time to time.

“Master Assignment and Acceptance Agreement” means the Master Assignment and Acceptance Agreement pursuant to which the lenders under the Original Credit Agreement shall have assigned to the Lenders hereunder all of the Pre-Effective Date Indebtedness and all of their commitments to make loans under the Original Credit Agreement.

“Material Adverse Effect” means (i) a material adverse effect on the business, assets, revenues, operations, results of operations, prospects or condition (financial or otherwise) of the Borrower Group taken as a whole, (ii) a material adverse effect on the ability of any Loan Party to perform its obligations under the Loan Documents to which it is a party, or (iii) a material adverse effect on the validity or enforceability of the Loan Documents, the Liens granted under the Loan Documents or the Lenders’ or any Agent’s rights and remedies under the Loan Documents.

“Material Contract” means any contract, lease or other agreement or arrangement to which any Loan Party is a party (other than the Loan Documents) (a) involving aggregate consideration payable to or by any Loan Party in excess of the greater of (i) $3,000,000 and (ii) the lesser of (A) an amount equal to 10% of the product of (x) Consolidated EBITDA for the four most recent fiscal quarters for which an income statement has been delivered hereunder prior to the date that the determination is being made hereunder, multiplied by (y) two (2), and (B) $5,000,000, or (b) which is otherwise material to the business, assets, operations, results of operations or condition (financial or otherwise) of the Borrower Group, taken as a whole, including without limitation the Specified Material Contracts, or (c) that is a Colocation Lease.

“Material Subsidiaries” means the direct and indirect Subsidiaries of the Parent other than Switch & Data AZ One LLC, Switch and Data Communications LLC, Switch & Data FL Four LLC, Switch and Data IL Four LLC, Switch and Data IL Five LLC, Switch & Data LA One LLC, Switch & Data MO One LLC, Switch & Data TN Two LLC, and Telx Acquisition, Inc.

“Moody’s” means ▇▇▇▇▇’▇ Investors Service, Inc.

“Multiemployer Plan” means a “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA) to which any Loan Party or any ERISA Affiliate has contributed during the current calendar year or the six calendar years preceding the date of this Agreement or with respect to which any Loan Party may incur any liability.

“Net Asset Sale Proceeds” means the aggregate cash proceeds received by any member of the Borrower Group in respect of any Asset Sale, net of:

(i) the direct costs relating to such Asset Sale (including legal, accounting and investment banking fees and expenses, employee severance and termination costs, any trade payables or similar liabilities related to the assets sold and required to be paid by the seller as a result thereof and sales, finders’ or brokers’ commissions);

(ii) any relocation expenses incurred as a result thereof;

(iii) taxes paid or payable as a result thereof (including any such taxes paid or payable by an owner of any member of the Borrower Group) (after taking into account any available tax credits or deductions and any tax sharing arrangements);

(iv) amounts required to be applied to the repayment of Indebtedness secured by a Permitted Lien which is prior to the Lien under the Collateral Documents on the asset or assets that are the subject of such Asset Sale;

(v) all distributions and other payments required to be made to minority interest holders in a Subsidiary or Joint Venture as a result of the Asset Sale; and

(vi) any reserve for adjustment in respect of the sale price of such asset or assets or any liabilities associated with the asset disposed of in such Asset Sale.

“Net Proceeds” has the meaning assigned to that term in Section 2.5.B(iii)(a).

“Net Proceeds Amount” is defined in Section 2.5.B(iv).

“Net Revenue” means, for any period, all revenue received by the members of the Borrower Group in respect of any Colocation Facility, that would, in conformity with GAAP, be included on the consolidated income statement of the Borrower Group as revenue at such date.

“Non-Recourse Indebtedness” means Indebtedness:

(i) as to which no member of the Borrower Group (A) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness), (B) is directly or indirectly liable as a guarantor or otherwise, or (C) is the lender;

(ii) which, if in default, would not permit (upon notice, lapse of time or both) any holder of any other Indebtedness of any member of the Borrower Group to declare a default on such other Indebtedness or cause the payment thereof to be accelerated or

payable prior to its stated maturity (including the right of such holders to take enforcement action against an Unrestricted Subsidiary); and

(iii) as to which the lenders thereof have been notified in writing that they will not have any recourse to the Equity Interests or assets (other than the Equity Interests of any Person other than a member of the Borrower Group) of any member of the Borrower Group, provided that the inclusion of any of the Specified Exceptions to Non-Recourse Provisions in the documents evidencing such Indebtedness will not, solely be virtue thereof, prevent such Indebtedness from constituting Non-Recourse Indebtedness unless and until the conditions of any of such Specified Exceptions to Non-Recourse Provisions that are included in the documents evidencing such Indebtedness are satisfied and the holder of such Indebtedness obtains, by virtue thereof, the right to take action against the Equity Interests or assets of a member of the Borrower Group.

“Non-US Lender” has the meaning assigned to that term in Section 2.7.B(iii).

“Notes” means the Revolving Loan Notes and the Term Loan Notes.

“Notice of Conversion/Continuation” means a notice substantially in the form of Exhibit H hereto delivered to the Administrative Agent pursuant to Section 2.3.D with respect to a proposed conversion or continuation of the applicable basis for determining the interest rate with respect to the Loans specified therein.

“Obligations” means the collective reference to the Letter of Credit Obligations (including cash collateral for outstanding Letters of Credit as provided herein in an amount equal to 105% of such Letter of Credit Obligations) and the unpaid principal of, and the accrued and unpaid interest on, the Loans and all other obligations and liabilities of any Loan Party to each Agent, the Lenders and the Issuing Bank (including each Loan Party’s liability for all interest that accrues after the maturity of the Loans and all interest that accrues after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to any Loan Party whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter incurred, that may arise under, out of, or in connection with, this Agreement, any other Loan Document, any Interest Rate Agreement entered into by the Borrower with any Lender or Affiliate thereof pursuant to this Agreement or any other document made, delivered or given in connection with this Agreement, any other Loan Document or any such Interest Rate Agreement, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including all fees and disbursements of counsel to each Agent, the Lenders and the Issuing Bank that are required to be paid by the Borrower pursuant to the terms of any such agreement), and all other obligations and liabilities of any or all of the Loan Parties to each Agent, the Issuing Bank and/or any Lender under this Agreement, or any other Loan Document.

“Officer’s Certificate” means a certificate executed on behalf of a Person by a Responsible Officer thereof (in his capacity as such officer); provided that every Officer’s Certificate with respect to the compliance with a condition precedent to the

making of any Loans hereunder shall include (i) a statement that the Responsible Officer making or giving such Officer’s Certificate has read such condition and any definitions or other provisions contained in this Agreement relating thereto, (ii) a statement that, in the opinion of such Responsible Officer, he is reasonably familiar with the assets, liabilities, operations and affairs of the Borrower Group and, accordingly, is able to express an informed opinion as to whether or not such condition has been complied with, and (iii) a statement as to whether, in the opinion of the Responsible Officer, such condition has been complied with in all material respects.

“Operating Lease” means, as applied to any Person, any lease (including leases that may be terminated by the lessee at any time) of any property (whether real, personal or mixed) that is not a Capital Lease other than any such lease under which that Person is the lessor.

“Original Credit Agreement” has the meaning assigned to that term in the Preamble hereto.

“Other Taxes” has the meaning assigned to that term in Section 2.7.B.

“Parent” means Switch & Data Facilities Company, Inc.

“Patriot Act” has the meaning assigned to that term in Section 9.26.

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

“Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to Section 412 of the Code or Section 302 of ERISA.

“Permitted Business” means the designing, constructing, acquiring, owning, operating and leasing of the Colocation Facilities to telecommunications carriers, Internet service providers, content providers, data service providers and others and the provision of services in connection therewith, including, but not limited to, connectivity to public and private network services, security and monitoring services, data recovery services, colocation services, hosting services, voice-over IP services, video services, and content aggregation, together with any activity reasonably related to or ancillary to the foregoing and the making of any rent payments under a Colocation Lease.

“Permitted Investments” means Investments which are:

(i) Cash or Cash Equivalents;

(ii) accounts receivable created, acquired or made by any Loan Party in the ordinary course of business;

(iii) Investments consisting of Equity Interests, obligations, securities or other property received by any Loan Party in settlement of accounts receivable or in satisfaction of judgments (each created in the ordinary course of business) from obligors

in the ordinary course of business or received pursuant to bankruptcy or insolvency proceedings of the account debtor;

(iv) Investments existing as of the Closing Date and set forth in Schedule 1.1.D;

(v) subject to Section 6.18, Investments in Property to be used as a Colocation Facility or useful in connection with the conduct of a Permitted Business (to the extent constituting an ongoing business) or, so long as no Event of Default has occurred and is continuing, in a Person that is (or upon the consummation of any such Investment will become) a Wholly-Owned Restricted Subsidiary of the Borrower or of a Restricted Subsidiary of the Borrower and whose assets principally consist of Property to be used as a Colocation Facility or useful in connection with the conduct of a Permitted Business, provided that no Investment in the Canadian Subsidiaries may be made under this clause (v);

(vi) to the extent permitted under Section 6.7, Investments consisting of non-cash consideration received by any Loan Party in any Asset Sales;

(vii) subject to Section 6.18, Investments made by any member of the Borrower Group in any other member of the Borrower Group other than the Canadian Subsidiaries;

(viii) the Canadian Subsidiary Contribution, provided that, the Canadian Subsidiary Contribution shall only be a Permitted Investment if (a) at least two-thirds of such Investment is made in the form of a loan which is evidenced by a promissory note from the Canadian Subsidiary to which loan is made, which note shall be in form and substance acceptable to the Administrative Agent (as amended from time to time with the written consent of the Administrative Agent, the “2005 Canadian Investment Note”), and (b) the Person that makes such Investment and receives such Canadian Investment Note shall pledge and deliver such Canadian Investment Note to the Administrative Agent on the date that the Canadian Subsidiary Contribution is made, pursuant to a pledge agreement in form and substance satisfactory to the Administrative Agent, as additional Collateral for the Obligations, and

(ix) the Investment evidenced by the Canadian Revolving Note.

“Permitted Liens” means the following types of Liens, excluding (a) any such Lien imposed pursuant to Section 401(a)(29) or 412(n) of the Code or by ERISA, (b) any such Lien relating to or imposed in connection with any Environmental Claim, and (c) any such Lien expressly prohibited by any applicable terms of any of the Collateral Documents:

(i) Liens for taxes, assessments or governmental charges or claims the payment of which is not, at the time, required by Section 5.5;

(ii) Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 6.5;

(iii) Liens of sellers of goods to any Loan Party arising under Article 2 of the UCC or similar provisions of applicable law in the ordinary course of business, covering only goods sold and securing only the unpaid purchase price for such goods and related expenses;

(iv) statutory Liens of landlords, statutory Liens of banks and rights of set-off, statutory Liens of carriers, warehousemen, mechanics, repairmen, workmen and materialmen, and other Liens imposed by law, in each case incurred in the ordinary course of business (a) for amounts not yet overdue or (b) for amounts that are overdue and that (in the case of any such amounts overdue for a period in excess of five days) are being contested in good faith by appropriate proceedings, so long as (1) if any such Liens under this clause (iv) secure amounts in excess of $500,000 in the aggregate, the applicable members of the Borrower Group maintain cash reserves sufficient to discharge all such Liens, and (2) in the case of a Lien with respect to any portion of the Collateral, such contest proceedings conclusively operate to stay the sale of any portion of the Collateral on account of such Lien;

(v) Liens incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security (exclusive of obligations for the payment of borrowed money), incurred in the ordinary course of business (a) for amounts not yet overdue or (b) for amounts that are overdue and that (in the case of any such amounts overdue for a period in excess of five days) are being contested in good faith by appropriate proceedings, so long as (1) the applicable member of the Borrower Group maintains cash reserves sufficient to discharge any such Lien, and (2) in the case of a Lien with respect to any portion of the Collateral, such contest proceedings conclusively operate to stay the sale of any portion of the Collateral on account of such Lien;

(vi) real property leases, subleases or other occupancy agreements granted to third parties not in violation of any provision of any Loan Document, provided that each such lease, sublease or other occupancy agreement does not adversely interfere in any material respect with the ordinary conduct of the business of the Borrower Group;

(vii) easements, rights-of-way, restrictions, encroachments and other minor defects or irregularities in title, in each case which do not and will not interfere in any material respect with the ordinary conduct of the business of any member of the Borrower Group or result in a material diminution in the value of any Collateral as security for the Obligations;

(viii) any zoning or similar law or right reserved to or vested in any governmental office or agency to control or regulate the use of any real property;

(ix) Liens granted pursuant to the Collateral Documents;

(x) without limiting any of the Borrower’s obligations under Section 5.12, Section 5.16 and Section 6.13, landlords’ Liens with respect to leases entered into by a member of the Borrower Group; provided that the exercise of any such Lien would not

materially adversely affect the Borrower Groups’ or the Lenders’ rights in the Collateral subject to such Lien;

(xi) Liens existing as of the Closing Date and set forth on Schedule 1.1.E, provided that no such Lien shall at any time be extended to or cover any asset or property other than the asset or property subject thereto on the Closing Date;

(xii) Liens securing any Indebtedness renewing, refinancing or extending Indebtedness secured by Liens permitted pursuant to clause (xi) above on terms and conditions no less favorable to the applicable Loan Party, provided that no such Lien shall at any time be extended to or cover any asset or property other than the asset or property subject to such prior Lien on the Closing Date;

(xiii) Liens securing any Indebtedness permitted under Section 6.1(iv), Section 6.1(v), Section 6.1(vi) or Section 6.1(xi);

(xiv) other Liens securing Indebtedness in an aggregate amount not to exceed $1,500,000 at any time outstanding, so long as such Liens are secured by property with a fair market value not in excess of $2,000,000; and

(xv) financing statements filed to give notice of an operating lease of personal property which financing statements do not list any collateral except for the operating lease and the property that is the subject of the operating lease;

provided in each case that such Liens do not secure Indebtedness for borrowed money (other than Indebtedness of the nature described in clauses (iv), (v), (vi) and (xi) of Section 6.1).

“Permitted Purpose” has the meaning assigned to that term in Section 5.13.

“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 Governmental Instrumentalities.

“Pledge Agreements” means each Pledge Agreement executed and delivered on or before the Closing Date and each pledge agreement, pledge, charge or similar instrument to be executed and delivered by a Loan Party substantially in the form of Exhibit K, with such modifications as the Administrative Agent may reasonably request or consent to.

“Potential Event of Default” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default.

“Pre-Effective Date Indebtedness” has the meaning assigned to such term in the Preamble hereto.

“Prime Rate” means the rate that DBAG announces from time to time as its Dollar 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. DBAG or any other Lender may make commercial loans or other loans at rates of interest at, above or below the Prime Rate.

“Prior Amendment Date” means March 4, 2004.

“Pro Forma Basis” means, with respect to the calculation of financial covenants on a pro forma basis in connection with a proposed acquisition, the calculation of the financial covenants set forth in Section 6.6 hereof (including the Person or assets to be acquired as well as the Borrower Group) with reference to (i) the audited historical financial results of such Person to be acquired for the Test Period, if available, and if not so available, then with reference to such management certified financial results of such Person for the Test Period as shall be reasonably acceptable to the Administrative Agent (or, if an acquisition of assets, the financial results attributable to such assets) and the financial statements of the Borrower Group and its Subsidiaries for the Test Period ending immediately prior to the date of such acquisition, after giving effect on a pro forma basis to such acquisition in the manner described below:

(i) all Indebtedness (whether under this Agreement or otherwise) and any other balance sheet adjustments incurred or made in connection with the acquisition shall be deemed to have been incurred or made on the first day of the Test Period, and all Indebtedness of the Person acquired or to be acquired in such acquisition which was or will have been repaid in connection with the consummation of the acquisition shall be deemed to have been repaid concurrently with the deemed incurrence of the Indebtedness incurred in connection with the acquisition;

(ii) all Indebtedness assumed to have been incurred pursuant to the preceding clause (i) shall be deemed to have borne interest at the sum of (a) the arithmetic mean of (x) the LIBOR Rate for LIBOR Rate Loans having an Interest Period of one month in effect on the first day of the Test Period and (y) the LIBOR Rate for LIBOR Rate Loans having an Interest Period of one month in effect on the last day of the Test Period plus (b) the Applicable Margin then in effect (after giving effect to the acquisition on a Pro Forma Basis); and

(iii) reasonable specified cost savings, expenses and other income statement or operating statement adjustments which are attributable to the change in ownership and/or management resulting from such acquisition as may be approved by the Administrative Agent in writing shall be deemed to have been realized on the first day of the Test Period.

“Pro Rata Share” means (i) with respect to all payments, computations and other matters relating to the Term Loan Commitment or the Term Loans of any Lender with respect to any Class of Term Loans, the percentage obtained by dividing (a) the Term Loan Exposure of that Lender with respect to such Class by (b) the aggregate Term Loan

Exposure of all the Lenders with respect to such Class, and (ii) with respect to all payments, computations and other matters relating to the Revolving Loan Commitment or the Revolving Loans or the obligations or unreimbursed drawings with respect to a Letter of Credit of any Lender, the percentage obtained by dividing (x) the Revolving Loan Exposure of that Lender by (y) the aggregate Revolving Loan Exposure of all the Lenders. The initial Pro Rata Share of each Lender with respect to each Class of Loans is set forth opposite the name of such Lender in Schedule 2.1 hereto.

“Proceedings” has the meaning assigned to that term in Section 5.1.

“Projections” means the financial projections regarding the Borrower Group prepared by the management of the Parent, which shall be reasonably satisfactory in form and substance to the Administrative Agent and the Lenders.

“Property” means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether intangible or tangible.

“Redemption” means the redemption of all of the issued and outstanding Series D Redeemable Preferred Stock of the Parent in an aggregate redemption price of up to $44,250,000 and made pursuant to the Certificate of Designations, Preferences and Rights of Series D Redeemable Preferred Stock of Switch & Data Facilities Company, Inc., dated as of March 14, 2003, on the Effective Date.

“Register” has the meaning assigned to that term in Section 2.1.D(i).

“Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.

“Reinvestment Notice” means a written notice executed by a Responsible Officer of the Borrower stating that no Potential Event of Default or Event of Default has occurred and is continuing and that the Borrower or any other member of the Borrower Group intends and expects to use all or a specified portion of any Casualty Proceeds to acquire assets useful in a Permitted Business or to rebuild or restore assets used in a Permitted Business.

“Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, or leaching of Hazardous Materials into the indoor or outdoor environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Materials), including the migration of any Hazardous Materials through the air, soil, surface water or groundwater.

“Required Lenders” means the Lenders having or holding a majority of the sum of the aggregate Loans, outstanding Letters of Credit and Unused Revolving Loan Commitments of all the Lenders.

“Responsible Officer” means, with respect to any matter and with respect to any Person, the Chairman, the Chief Executive Officer, the Chief Financial Officer, the

President, any Vice President, Assistant Vice President, Treasurer, Assistant Treasurer, Assistant Secretary, Manager or General Partner of such Person or if such Person has no appointed officers, any authorized representative of such Person.

“Restricted Cash” means security deposits of customers of any member of the Borrower Group.

“Restricted Payment” means:

(i) any dividend or other distribution, direct or indirect, on account of any shares of any class of stock of any member of the Borrower Group now or hereafter outstanding (except a dividend or distribution payable solely in shares of that class of stock to the holders of that class (or the accretion of such dividends or distribution)) or any payment of a management fee or similar fee by a member of the Borrower Group to a beneficial holder of any Equity Interest in any member of the Borrower Group or to any Affiliate of any such beneficial holder or any employee, officer, director or manager of any such holder or Affiliate, except for payments that are permitted by clause (iii) of Section 6.10 hereof;

(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 any member of the Borrower Group 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 any member of the Borrower Group now or hereafter outstanding;

(iv) any payment or prepayment of principal of, premium, if any, or cash interest on, or redemption, purchase, retirement, defeasance (including covenant or legal defeasance), sinking fund or similar payment with respect to Indebtedness of any member of the Borrower Group and which is subordinated in right of payment of the Obligations; and

(v) any Investment that is not a Permitted Investment.

“Restricted Subsidiary” means each Subsidiary of the Parent and of its direct or indirect Subsidiaries that is not an Unrestricted Subsidiary which is listed as an Unrestricted Subsidiary on Schedule 4.1.C as in effect on the Closing Date.

“Revolving Loan Availability Period” means the period from and including the Closing Date to and including the earlier to occur of (i) the date which is five (5) Business Days prior to the Revolving Loan Maturity Date and (ii) the date on which all of the Revolving Loan Commitments terminate or expire pursuant to Section 2.5 or Section 7.16.

“Revolving Loan Commitment” means the commitment of a Revolving Loan Lender to make a Revolving Loan to the Borrower pursuant to Section 2.1.A and/or to participate in any Letter of Credit pursuant to Section 2.2.C, up to the amount set forth on

Schedule 2.1 as the Revolving Loan Commitment of such Revolving Loan Lender (or as set forth in the Register pursuant to any assignment of any such Revolving Loan Commitment in accordance with the terms hereof), and “Revolving Loan Commitments” means all such commitments of the Revolving Loan Lenders in the aggregate.

“Revolving Loan Exposure” means, with respect to any Revolving Lender as of any date of determination, (i) prior to the termination of the Revolving Loan Commitments, that Lender’s Revolving Loan Commitment (including all drawn and undrawn portions thereof) and (ii) after the termination of the Revolving Loan Commitments, the aggregate outstanding principal amount of the Revolving Loans of that Lender and such Lender’s Pro Rata Share of the Letter of Credit Obligations.

“Revolving Loan Lenders” means any Lender who has a Revolving Loan Commitment.

“Revolving Loans” is defined in Section 2.1.A.

“Revolving Loan Maturity Date” means October 13, 2010.

“Revolving Loan Notes” means (i) the promissory notes of the Borrower issued pursuant to Section 2.1.E on the Closing Date in respect of its Revolving Loans and (ii) any promissory note issued by the Borrower pursuant to Section 9.1.B in connection with assignments of the Revolving Loan Commitments or Revolving Loans of any of the Lenders, in each case substantially in the form of Exhibit M-3 hereto.

“S&P” means Standard & Poor’s Ratings Services, a division of McGraw Hill Companies, Inc.

“Second Lien Administrative Agent” means DBAG in its capacity as “Administrative Agent” under the Second Lien Credit Agreement or any successor “Administrative Agent” appointed thereunder pursuant to the terms thereof.

“Second Lien Collateral Documents” means the “Collateral Documents” under and as defined in the Second Lien Credit Agreement as in effect on the date hereof.

“Second Lien Credit Agreement” means that certain Credit Agreement, dated as of October 13, 2005, together with all Exhibits and Schedules attached thereto, among the Borrower, the financial institutions party thereto from time to time and the Second Lien Administrative Agent, as in effect on the date hereof.

“Secured Parties” means the Administrative Agent, the Lead Arrangers, the Lenders, the Issuing Bank and any Lender or Affiliate of a Lender party to an Interest Rate Agreement.

“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.

“Security Agreements” means each Security Agreement executed and delivered on or before the Closing Date and each security agreement, pledge, charge or similar instrument to be executed and delivered by any member of the Borrower Group substantially in the form of Exhibit L with such modifications as the Administrative Agent may reasonably request or consent to, provided that the Canadian Subsidiaries shall not be required to execute a Security Agreement.

“Series C Preferred Share Payments” means the payment of (i) all accrued and unpaid dividends on the Series C Redeemable Preferred Stock of the Parent and (ii) the “Series C Interim Preference Amount” (as defined in the First Amended and Restated Certificate of Designations, Preferences and Rights, dated as of March 14, 2003 of such Series C Redeemable Preferred Stock, made on the Effective Date in an aggregate amount for both clause (i) and clause (ii) above not to exceed $16,000,000.

“Solvency Certificate” means a certificate substantially in the form of Exhibit I hereto delivered by each of the Material Subsidiaries and the Parent to the Administrative Agent pursuant to Section 3.1.R.

“Solvent” or “Solvency” means, with respect to any Person as of a particular date, that on such date (i) such Person is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and other commitments as they mature in the normal course of business, (ii) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature in their ordinary course, (iii) such Person is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which such Person’s property or assets would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such Person is engaged or is to engage, (iv) the fair value of the property or assets of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person and (v) the present fair salable value of the assets of such Person, as a going concern, is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured. In computing the amount of contingent liabilities at any time, it is intended that such liabilities will be computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

“Specified Exceptions to Non-Recourse Provisions” shall mean provisions effectively setting forth one or more of the following events in relation to Indebtedness which, but for the occurrence of one or more of the following, would be Non-Recourse Indebtedness:

(i) the collateral is sold or otherwise disposed of or the title thereto is encumbered, otherwise than as permitted by the mortgage granting such collateral;

(ii) fraud by the borrower in connection with the applicable Indebtedness;

(iii) misapplication of (A) proceeds paid under any insurance policies by reason of damage, loss or destruction affecting any portion of the collateral for the Indebtedness (to the extent of such proceeds), (B) any proceeds or awards resulting from the condemnation of all or any part of such collateral (to the extent of such proceeds or awards), or (C) rents received with respect to the collateral; or

(iv) damage or destruction to the collateral due to willful acts or gross negligence of the Maker;

“Specified Material Contracts” means the contracts and agreements listed on Schedule 4.9.B.

“Start Date” shall have the meaning assigned to such term in the definition of Applicable Margin.

“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board to which the Administrative Agent is subject with respect to the Adjusted Eurodollar Rate for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board). Such reserve percentages shall include those imposed pursuant to such Regulation D. Eurodollar Rate Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

“Subsidiary” means, with respect to any Person, (i) 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 and (ii) any partnership or limited liability company of which more than 50% of such entities’ capital accounts, distribution rights, general or limited partnership interests or

membership interests are owned or controlled directly or indirectly by such Person or one of more other Subsidiaries of that Person or a combination thereof.

“Supermajority Lenders” means the Lenders having or holding at least 66 2/3% of the sum of the aggregate Loans, outstanding Letters of Credit and Unused Revolving Loan Commitments of all of the Lenders.

“Supplemental Agent” has the meaning assigned to such term in Section 8.1.B.

“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, including interest, penalties and additions in connection therewith; 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 lending office) is located or in which that Person (and/or, in the case of a Lender, its 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 lending office).

“Term Loan A” is defined in Section 2.1.A(i).

“Term Loan A Commitment” means the commitment of a Term Loan A Lender to make a Term Loan A to the Borrower pursuant to Section 2.1.A(i), up to the amount set forth on Schedule 2.1 as the Term Loan A Commitment of such Term Loan A Lender (or as set forth in the Register pursuant to any assignment of any such Term Loan A Commitment in accordance with the terms hereof) and “Term Loan A Commitments” means all such commitments of the Term Loan A Lenders in the aggregate.

“Term Loan A Lender” means the persons identified as “Term Loan A Lenders” and listed on the signature pages of this Agreement and Schedule 2.1, together with their successors and permitted assigns pursuant to Section 9.1.

“Term Loan A Maturity Date” means October 13, 2010.

“Term Loan A Notes” means (i) the promissory notes of the Borrower issued pursuant to Section 2.1.E on the Closing Date in respect of Term Loan A and (ii) any promissory note issued by the Borrower pursuant to Section 9.1.B in connection with assignments of Term Loan A of any of the Term Loan Lenders, in each case substantially in the form of Exhibit M-1 hereto.

“Term Loan B” is defined in Section 2.1.A(ii).

“Term Loan B Commitment” means the commitment of a Term Loan B Lender to make a Term Loan B to the Borrower pursuant to Section 2.1.A(ii), up to the amount set forth on Schedule 2.1 as the Term Loan B Commitment of such Term Loan B Lender (or as set forth in the Register pursuant to any assignment of any such Term Loan B

Commitment in accordance with the terms hereof) and “Term Loan B Commitments” means all such commitments of the Term Loan B Lenders in the aggregate.

“Term Loan B Lender” means the persons identified as “Term Loan B Lenders” and listed on the signature pages of this Agreement and Schedule 2.1, together with their successors and permitted assigns pursuant to Section 9.1.

“Term Loan B Maturity Date” means October 13, 2011.

“Term Loan B Notes” means (i) the promissory notes of the Borrower issued pursuant to Section 2.1.E on the Closing Date in respect of Term Loan B and (ii) any promissory note issued by the Borrower pursuant to Section 9.1.B in connection with assignments of the Term Loan B of any of the Term Loan Lenders, in each case substantially in the form of Exhibit M-2 hereto.

“Term Loan Commitments” means the Term Loan A Commitments and the Term Loan B Commitments.

“Term Loan Exposure” means, with respect to any Term Lender as of any date of determination with respect to any Class of Term Loans, (i) prior to the termination of the Term Loan Commitments, that Lender’s Term Loan Commitment (including all drawn and undrawn portions thereof) with respect to such Class of Term Loans, and (ii) after the termination of the Term Loan Commitments, the aggregate outstanding principal amount of the Term Loans of that Lender with respect to such Class of Term Loans.

“Term Loan Lenders” means Term Loan A Lenders and Term Loan B Lenders.

“Term Loan Notes” means Term Loan A Notes and Term Loan B Notes.

“Term Loans” means Term Loan A and Term Loan B.

“Test Period” means, in connection with the calculation of any financial covenant on a Pro Forma Basis, the period of all fiscal quarters (and any portion of a fiscal quarter) prior to the date of such acquisition that are included in the calculation of such financial covenant (or any component thereof).

“Total Utilization of Revolving Loan Commitments” means, as at any date of determination, the aggregate principal amount of all outstanding Revolving Loans and the maximum amount available to be drawn under all Letters of Credit.

“Transaction Costs” means the fees, costs and expenses payable by any member of the Borrower Group on or before the Closing Date in connection with the transactions contemplated by the Loan Documents.

“UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect in any applicable jurisdiction.

“UCP” has the meaning assigned to that term in Section 2.2.I.

“Unadjusted Eurodollar Rate Component” has the meaning assigned to that term in Section 5.15.

“Unrestricted Subsidiary” means each Subsidiary described as an Unrestricted Subsidiary on Schedule 4.1.C as in effect on the Closing Date.

“Unused Revolving Loan Commitments” means, for any period, the average of the daily excess of the Revolving Loan Commitments in effect during such period over the average daily aggregate principal amount of Revolving Loans and the maximum amount available to be drawn under all Letters of Credit outstanding during such period.

“Wholly-Owned Subsidiary” of any Person means a Subsidiary of such Person all of the outstanding Equity Interests of which (other than directors’ qualifying shares) shall at the time be owned by such Person and/or by one or more Wholly-Owned Subsidiaries of such Person.

Section 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. Without limiting the foregoing, financial statements and other information required to be delivered to the Lenders pursuant to Section 3.1 and Section 5.1 shall be prepared in accordance with GAAP as in effect at the time of such preparation (and delivered together with the reconciliation statements provided for in Section 5.1). Calculations in connection with the definitions, covenants and other provisions of this Agreement shall utilize accounting principles and policies in conformity with those used to prepare the financial statements referred to in Section 5.1.

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

C. Any reference to any agreement or instrument shall be deemed to include a reference to such agreement or instrument as assigned, amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms of this Agreement.

D. 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. The word “will” shall be construed to have the same meaning and effect as the word “shall.” Any provision stating that an Agent or Lender “may” take certain action shall be construed to mean that Agent or Lender may, but shall not be obligated to, take such action.

E. References to “Sections” and “subsections” shall be to Sections and subsections, respectively, of this Agreement unless otherwise specifically provided.

F. References to “Articles” shall be to Articles of this Agreement unless otherwise specifically provided.

G. The use in this Agreement of the words “herein,” “hereof,” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof.

H. The use in this Agreement of the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

I. This Agreement, the other Loan Documents and any documents or instruments delivered pursuant hereto shall be construed without regard to the identity of the party who drafted the various provisions of the same. Each and every provision of this Agreement, the other Loan Documents and instruments and documents entered into and delivered in connection therewith shall be construed as though the parties participated equally in the drafting of the same. Consequently, each of the parties acknowledges and agrees that any rule of construction that a document is to be construed against the drafting party shall not be applicable either to this Agreement, or the other Loan Documents and instruments and documents entered into and delivered in connection therewith.

J. All of the Obligations are the joint and several obligations of the Borrower and the Guarantors, regardless of whether any provision hereof with respect to any such Obligation expressly states that such Obligation is a joint and several obligation.

K. With respect to any covenant herein by the Borrower not to permit another member of the Borrower Group to take certain action or which requires the Borrower to cause another member of the Borrower Group to take certain action, it will be a breach of such covenant if any member of the Borrower Group fails to take such action, regardless of whether the Borrower had the right, authority or power to permit or cause such other member of the Borrower Group to take or not take such action.

ARTICLE II.

AMOUNTS AND TERMS OF COMMITMENTS AND LOANS

Section 2.1. Commitments; Making of Loans; the Register; Notes.

A. Commitments.

(i) Term Loan A. Subject to the terms and conditions hereof (including without limitation the conditions in Section 3.2) and in reliance upon the representations and warranties set forth herein, each Term Loan A Lender severally agrees to make a Term Loan A on the Effective Date to the Borrower in an aggregate amount not to exceed the lesser of (a) its Pro Rata Share of the Term Loan A Commitments and (b) its Term Loan A Commitment. Concurrently with the funding of the Term Loan A, all Term Loan A Commitments shall terminate and no advances of Term Loan A will be available to the Borrower after the Effective Date. Proceeds of the Term Loan A borrowed under this Section 2.1.A(i) and subsequently repaid or prepaid may not be reborrowed.

(ii) Term Loan B. Subject to the terms and conditions hereof and in reliance upon the representations and warranties set forth herein, the Pre-Effective Date Indebtedness shall be converted into a portion of Term Loan B, without constituting a novation. Each Term Loan B Lender severally agrees to advance (or, if applicable, to permit to be outstanding hereunder) the balance of its Term Loan B Commitment to the Borrower on the Effective Date in an aggregate amount not exceeding (in the aggregate including its portion of the Pre-Effective Date Indebtedness) the lesser of (a) its Pro Rata Share of the Term Loan B Commitments and (b) its Term Loan B Commitment. Concurrently with the funding of the Term Loan B, all Term Loan B Commitments shall terminate and no advances of Term Loan B will be available to the Borrower after the Effective Date. Proceeds of the Term Loan B borrowed under this Section 2.1.A(ii) and subsequently repaid or prepaid may not be reborrowed.

(iii) Revolving Loans. Subject to the terms and conditions hereof and in reliance upon the representations and warranties set forth herein, each Revolving Loan Lender severally agrees to make revolving loans (“Revolving Loans”) to the Borrower from time to time during the Revolving Loan Availability Period in an aggregate amount not exceeding the lesser of (a) its Pro Rata Share of the Revolving Loan Commitments and (b) its Revolving Loan Commitment. The amount of each Revolving Loan Lender’s Revolving Loan Commitment as of the Closing Date is set forth opposite its name on Schedule 2.1 hereto and the aggregate amount of the Revolving Loan Commitments as of the Closing Date is as set forth on Schedule 2.1; provided that the Revolving Loan Commitments of the applicable Revolving Loan Lenders shall be adjusted to give effect to any assignments of such Revolving Loan Lender’s Revolving Loan Commitments pursuant to Section 9.1; 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 Section 2.5. Each Revolving Loan Lender’s Revolving Loan Commitments shall expire immediately and without further action at the expiration of the Revolving Loan Availability Period and no Revolving Loans shall be made after such date. Revolving Loans borrowed under this Section 2.1.A(iii) and subsequently repaid or prepaid may be reborrowed during the Revolving Loan Availability Period; provided, however, that the aggregate principal amount of the Revolving Loans outstanding at any time, when added to the aggregate amount of the Letter of Credit Obligations, may not exceed the aggregate amount of the Revolving Loan Commitments.

B. Borrowing Mechanics. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of the Borrower herein set forth, each

Lender hereby severally agrees to make the Loans described in Section 2.1.A, if, and only if, the borrowing mechanics set forth as follows are satisfied:

(i) Base Rate Loans shall be in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in excess of that amount and Eurodollar Rate Loans shall be in an aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in excess of that amount.

(ii) Whenever the Borrower desires that the Lenders make Loans, the Borrower shall deliver to the Administrative Agent a Loan/Letter of Credit Request no later than 10:00 A.M. (New York City time) at least three Business Days in advance of the proposed Loan Date (in the case of a Eurodollar Rate Loan) or at least one Business Day in advance of the proposed Loan Date (in the case of a Base Rate Loan).

(iii) Each Loan/Letter of Credit Request shall (a) specify (1) the aggregate amount and Class of the requested Loan, (2) the proposed Loan Date (which may occur only on a Business Day), (3) whether such Loan shall be a Base Rate Loan or a Eurodollar Rate Loan, (4) in the case of any Loans requested to be made as Eurodollar Rate Loans, the initial Interest Period requested therefor, which shall be a period contemplated by the definition of the term “Interest Period,” and (5) the intended use of proceeds of such Loan, and (b) be accompanied by an accurate and complete Loan/Letter of Credit Certificate.

(iv) The Borrower shall notify the Administrative Agent prior to the making of any Loan in the event that any of the matters to which the Borrower is required to certify in the applicable Loan/Letter of Credit Request or Loan/Letter of Credit Certificate, as applicable, is no longer accurate and complete as of the applicable Loan Date, and the acceptance by the Borrower of the proceeds of any Loan shall constitute a re-certification by the Borrower, as of the applicable Loan Date, as to the matters to which the Borrower is required to certify in the applicable Loan/Letter of Credit Request and Loan/Letter of Credit Certificate (it being understood that, if a Loan is made during the continuance of an Event of Default, the making of such Loan shall not constitute a waiver of such Event of Default).

(v) Notwithstanding the foregoing in this Section 2.1.B, Loans made on the Effective Date may be either Base Rate Loans or Eurodollar Rate Loans; provided, however, any Loans that are Eurodollar Rate Loans shall have an initial Interest Period of one month.

Except as otherwise provided in Section 2.6.B and Section 2.6.C, a Loan/Letter of Credit Request for a Eurodollar Rate Loan shall be irrevocable on and after the related Interest Rate Determination Date, and a Loan/Letter of Credit Request for a Base Rate Loan shall be irrevocable on and after the delivery of such Loan/Letter of Credit Request to the Administrative Agent and, in each case, the Borrower shall be bound to make a borrowing in accordance therewith.

C. Disbursement of Funds. All Loans under this Agreement shall be made by the 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 the Administrative Agent of a Loan/Letter of Credit Request pursuant to Section 2.1.B, the Administrative Agent shall notify each Lender of the proposed borrowing. Each Lender shall make the amount of its Loan available to the Administrative Agent not later than 12:00 Noon (New York City time) on the applicable Loan Date, in immediately available funds in Dollars, at the Funding and Payment Office. The Administrative Agent shall disburse the proceeds of each Loan, all in accordance with and as more particularly described in the Loan/Letter of Credit Request.

Unless the Administrative Agent shall have been notified by any Lender on or prior to the Loan Date that such Lender does not intend to make available to the Administrative Agent the amount of such Lender’s share of such Loan requested on such Loan Date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such Loan Date and the Administrative Agent may, in its sole discretion, but shall not be obligated to, make available to the Borrower a corresponding amount on such Loan Date. If such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon, for each day from such Loan Date until the date such amount is paid to the Administrative Agent, at the Federal Funds Effective Rate for the first three Business Days and thereafter at the rate payable under this Agreement for Base Rate Loans of the applicable Class of Loans. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s share of the Loan included in such Loan. If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent shall promptly notify the Borrower and the Borrower shall immediately pay such corresponding amount to the Administrative Agent together with interest thereon, for each day from such Loan Date until the date such amount is paid to the Administrative Agent, at the rate payable under this Agreement for Base Rate Loans of the applicable Class of Loans. Nothing in this Section 2.1.C shall be deemed to relieve any Lender from its obligation to fulfill its Commitments hereunder or to prejudice any rights that the Borrower may have against any Lender as a result of any default by such Lender hereunder.

D. The Register.

(i) The Administrative Agent shall maintain, at its address referred to in Section 9.8, a register for the recordation of the names and addresses of the Lenders and the Commitments and Loans of each Lender from time to time (the “Register”). The Register shall be available for inspection by any Loan Party or any Lender at any reasonable time and from time to time upon reasonable prior notice.

(ii) The Administrative Agent shall record in the Register (a) the Term Loan A Commitment, the Term Loan B Commitment, the Revolving Loan Commitment and

the Loans from time to time of each Lender, (b) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder, (c) each repayment or prepayment in respect of the principal amount of the Loans of each Lender, (d) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof, and (e) the date of issuance, face amount and expiry date of each Letter of Credit and the Issuing Bank with respect thereto. Any such recordation shall be conclusive and binding on the Borrower and each Lender, absent manifest error; provided that failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Commitments or the 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 each Loan made by it and each payment in respect thereof. Any such recordation shall be conclusive and binding on the Borrower, absent manifest error; provided that failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Commitments or Obligations in respect of any applicable Loans or otherwise; 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) The Administrative Agent and the Lenders shall deem and treat the Persons listed as the 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 Loans shall be effective, in each case unless and until an Assignment Agreement effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided in Section 9.1. 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.

E. Notes. The Borrower shall execute and deliver on the Closing Date and on the date of any assignment or transfer of any Loan or Commitment to each Lender who so requests (or to the Administrative Agent on behalf of that Lender) (i) a Term Loan A Note substantially in the form of Exhibit M-1 hereto and a Term Loan B Note substantially in the form of Exhibit M-2 hereto to evidence that Lender’s Term Loans, in the principal amount of the sum of that Lender’s Term Loan A Commitment and Term Loan B Commitment, respectively, and with other appropriate insertions and/or (ii) a Revolving Note, substantially in the form of Exhibit M-3 hereto to evidence that Lender’s Revolving Loans, in the principal amount of that Lender’s Revolving Loan Commitment and with other appropriate insertions, as applicable.

The Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes hereof unless and until an Assignment Agreement effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent as provided in Section 9.1. Any request, authority or consent of any person or entity who, at the time of

making such request or giving such authority or consent, is the holder of any Note shall be conclusive and binding on any subsequent holder, assignee or transferee of that Note or of any Note or Notes issued in exchange therefor.

Section 2.2. Letters of Credit.

A. Issuance of Letters of Credit. Subject to the terms and conditions hereof and in reliance upon the representations and warranties set forth herein, each Issuing Bank agrees to issue, and each Revolving Loan Lender severally agrees to participate in the issuance by the Issuing Bank of, standby Letters of Credit in Dollars from time to during the Revolving Loan Availability Period as the Borrower may request, in a form mutually acceptable to the Issuing Bank and the Borrower; provided, however, that (i) the outstanding Letter of Credit Obligations (including those outstanding immediately prior to the Closing Date) shall not at any time exceed $1,000,000 (the “LOC Committed Amount”) and (ii) the sum of the aggregate outstanding principal amount of Revolving Loans plus Letter of Credit Obligations shall not at any time exceed the aggregate amount of the Revolving Loan Commitments. No Letter of Credit shall (a) have an original expiry date more than one year from the date of issuance (provided that any such Letter of Credit may contain customary “evergreen” provisions pursuant to which the expiry date is automatically extended by a specific time period unless the Issuing Bank gives notice of expiration or termination to the beneficiary of such Letter of Credit at least a specified time period prior to the expiry date then in effect) or (b) as originally issued or as extended, have an expiry date extending beyond the Revolving Loan Maturity Date. Each Letter of Credit shall comply with the related LOC Documents. The issuance and expiry dates of each Letter of Credit shall be a Business Day. Each Letter of Credit which remains outstanding under the Original Credit Agreement after the Closing Date shall be deemed to be a Letter of Credit issued under this Agreement as of the Effective Date.

B. Notice and Reports.

(i) The request for the issuance of a Letter of Credit shall be submitted by the Borrower to the Issuing Bank no later than 10:00 A.M. (New York City time) at least two Business Days in advance of the proposed Letter of Credit Date. The Borrower shall request the issuance of a Letter of Credit no more frequently than twice per month. Each request for the issuance of a Letter of Credit shall utilize a Loan/Letter of Credit Request and shall (a) specify (1) the aggregate amount of the requested Letter of Credit and (2) the proposed Letter of Credit Date and expiry date, and (b) be accompanied by an accurate and complete Loan/Letter of Credit Certificate.

(ii) The Issuing Bank shall, at least quarterly and more frequently upon reasonable request, disseminate to each of the Revolving Loan Lenders a detailed report specifying the Letters of Credit which are then issued and outstanding and any activity with respect thereto which may have occurred since the date of the prior report, and including therein, among other things, the beneficiary, the face amount and the expiry date, as well as any payment or expirations which may have occurred.

(iii) The Administrative Agent and the Lenders shall deem and treat the Persons listed as the Revolving Loan Lenders in the Register as the holders and owners

of the corresponding Revolving Loan Commitments, Loans and Letters of Credit listed therein for all purposes hereof, and no assignment or transfer of any such Revolving Loan Commitment or Letters of Credit shall be effective, in each case unless and until an Assignment Agreement effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided in Section 9.1. Prior to such recordation, all amounts owed with respect to the applicable Revolving Loan Commitment or Letter of Credit 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 Revolving Loan Commitments, Loans or Letters of Credit.

(iv) The Borrower shall notify the Administrative Agent prior to the issuance of any Letter of Credit in the event that any of the matters to which the Borrower is required to certify in the applicable Loan/Letter of Credit Request or Loan/Letter of Credit Certificate, as applicable, is no longer accurate and complete as of the applicable Loan Date, and the acceptance by the Borrower of the issuance of the Letter of Credit shall constitute a re-certification by the Borrower, as of the applicable Letter of Credit Date, as to the matters to which the Borrower is required to certify in the applicable Loan/Letter of Credit Request and Loan/Letter of Credit Certificate.

C. Participation. Each Revolving Loan Lender, upon issuance of a Letter of Credit, shall be deemed to have purchased without recourse a participation interest from the Issuing Bank in such Letter of Credit and the obligations arising thereunder and any collateral relating thereto, in each case in an amount equal to its Pro Rata Share of the obligations under such Letter of Credit and shall absolutely, unconditionally and irrevocably assume and be obligated to pay to the Issuing Bank and discharge when due its Pro Rata Share of the obligations arising under such Letter of Credit. Without limiting the scope and nature of each Lender’s participation interest in any Letter of Credit, to the extent that the Issuing Bank has not been reimbursed as required hereunder or under any such Letter of Credit, each such Lender shall pay to the Issuing Bank its Pro Rata Share of such unreimbursed drawing in same day funds on the day of notification by the Issuing Bank of an unreimbursed drawing pursuant to the provisions of Section 2.2.D below. The obligation of each Lender to so reimburse the Issuing Bank shall be absolute and unconditional and shall not be affected by the occurrence of a Potential Event of Default, an Event of Default or any other occurrence or event. Any such reimbursement shall not relieve or otherwise impair the obligation of the Borrower to reimburse the Issuing Bank under any Letter of Credit, together with interest as hereinafter provided.

D. Reimbursement. In the event of any drawing under any Letter of Credit, the Issuing Bank shall promptly notify the Borrower. Unless the Borrower shall immediately notify the Issuing Bank that it intends to otherwise reimburse the Issuing Bank for such drawing, the Borrower shall be deemed to have requested that the Lenders make a Revolving Loan in the amount of the drawing as provided in Section 2.2.E below on the related Letter of Credit, the proceeds of which shall be used to satisfy the related reimbursement obligations. The Borrower promises to reimburse the Issuing Bank on the day of drawing under any Letter of Credit (either with the proceeds of a Loan obtained hereunder or otherwise) in same day funds. If the

Borrower shall fail to reimburse the Issuing Bank as provided hereinabove, the unreimbursed amount of such drawing shall bear interest at a per annum rate equal to 2.00% per annum in excess of the interest rate otherwise payable under this Agreement for Revolving Loans that are Base Rate Loans. The Borrower’s reimbursement obligations hereunder shall be absolute and unconditional under all circumstances irrespective of any rights of setoff, counterclaim or defense to payment the Borrower may claim or have against the Issuing Bank, any Agent, the Lenders, the beneficiary of the Letter of Credit drawn upon or any other Person, including any defense based on any failure of the Borrower or any other Loan Party to receive consideration or the legality, validity, regularity or unenforceability of the Letter of Credit. The Issuing Bank will promptly notify the other Lenders of the amount of any unreimbursed drawing and each Lender shall promptly pay to the Administrative Agent for the account of the Issuing Bank, in Dollars and in immediately available funds, the amount of such Lender’s Pro Rata Share of such unreimbursed drawing. Such payment shall be made on the day such notice is received by such Lender from the Issuing Bank if such notice is received at or before 1:00 P.M. (New York City time), and otherwise such payment shall be made at or before 11:00 A.M. (New York City time) on the Business Day next succeeding the day such notice is received. If such Lender does not pay such amount to the Issuing Bank in full upon such request, such Lender shall, on demand, pay to the Administrative Agent for the account of the Issuing Bank interest on the unpaid amount during the period from the date of such drawing until such Lender pays such amount to the Issuing Bank in full at a rate per annum equal to, if paid within three Business Days of the date that such Lender is required to make payments of such amount pursuant to the preceding sentence, the Federal Funds Effective Rate and, thereafter, at a rate equal to the interest rate otherwise payable under this Agreement for Revolving Loans that are Base Rate Loans. Each Lender’s obligation to make such payment to the Issuing Bank, and the right of the Issuing Bank to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and shall be without regard to the termination of this Agreement or the Commitments hereunder, the existence of a Potential Event of Default or Event of Default or the acceleration of the obligations of the Borrower hereunder and shall be made without any offset, abatement, withholding or reduction whatsoever. Simultaneously with the making of each such payment by a Lender to the Issuing Bank, such Lender shall, automatically and without any further action on the part of the Issuing Bank or such Lender, acquire a participation interest in an amount equal to such payment (excluding the portion of such payment constituting interest owing to the Issuing Bank) in the related unreimbursed drawing portion of the Letter of Credit Obligation and in the interest thereon and in the related LOC Documents, and shall have a claim against the Borrower with respect thereto.

E. Repayment with Loans. On any day on which the Borrower shall have requested, or been deemed to have requested, a Loan to reimburse a drawing under a Letter of Credit, the Administrative Agent shall give notice to the Revolving Loan Lenders that a Loan has been requested or deemed requested by the Borrower to be made in connection with a drawing under a Letter of Credit, in which case a Loan comprised of Base Rate Loans (or Eurodollar Loans to the extent the Borrower has complied with the procedures of Section 2.1.B with respect thereto) shall be immediately made to the Borrower by all Lenders in accordance with their Pro Rata Shares and the proceeds thereof shall be paid directly to the Issuing Bank for application to the respective Letter of Credit Obligations. Each such Lender hereby irrevocably agrees to make its Pro Rata Share of each such Loan immediately upon any such request or deemed request in the amount, in the manner and on the date specified in the preceding sentence notwithstanding

(i) the amount of such borrowing may not comply with the minimum amount for advances of Loans otherwise required hereunder, (ii) whether any conditions specified in Section 3.2 are then satisfied, (iii) whether a Potential Event of Default or an Event of Default then exists, (iv) failure for any such request or deemed request for Loans to be made by the time otherwise required hereunder, (v) whether the date of such borrowing is a date on which Loans are otherwise permitted to be made hereunder or (vi) any termination of the Commitments relating thereto immediately prior to or contemporaneously with such borrowing.

F. Cash Collateral For Letter of Credit Obligations. In the event that on the Revolving Loan Maturity Date there are any outstanding Letters of Credit, the Borrower shall, on such date, deposit with the Issuing Bank an amount equal to 105% of the amount of the Letter of Credit Obligations, to be held by the Issuing Bank as cash collateral.

G. Designation of Subsidiary as Account Party. Notwithstanding anything to the contrary set forth in this Agreement, a Letter of Credit issued hereunder may contain a statement to the effect that such Letter of Credit is issued for the account of any other member of the Borrower Group other than the Canadian Subsidiaries, provided that notwithstanding such statement, the Borrower shall be the actual account party for all purposes of this Agreement for such Letter of Credit and such statement shall not affect the reimbursement obligations of the Borrower hereunder with respect to such Letter of Credit.

H. Renewal; Extension. The renewal or extension of any Letter of Credit shall, for purposes hereof, be treated in all respects in the same manner as the issuance of a new Letter of Credit hereunder.

I. Uniform Customs and Practices. The Issuing Bank may have the Letters of Credit be subject to The Uniform Customs and Practice for Documentary Credits (the “UCP”) or the International Standby Practices 1998 (the “ISP98”), in either case as published as of the date of issue by the International Chamber of Commerce, in which case the UCP or the ISP98, as applicable, may be incorporated therein and deemed in all respects to be a part thereof.

J. Indemnification; Nature of Issuing Bank’s Duties.

(i) In addition to its other obligations under this Section 2.2, the Borrower hereby agrees to pay, and protect, indemnify and save each Lender harmless from and against, any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees) that such Lender may incur or be subject to as a consequence, direct or indirect, of (a) the issuance of any Letter of Credit or (b) the failure of such Lender to honor a drawing under a Letter of Credit as a result of any act or omission, whether rightful or wrongful, in connection with any present or future de jure or de facto Legal Requirement.

(ii) As between the Borrower and the Lenders (including the Issuing Bank), the Borrower shall assume all risks of the acts, omissions or misuse of any Letter of Credit by the beneficiary thereof. No Lender (including the Issuing Bank) shall be responsible: (a) for 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 Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (b) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (c) for 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; (d) for any loss or delay in the transmission or otherwise of any document required in order to make a drawing under a Letter of Credit or of the proceeds thereof; and (e) for any consequences arising from causes beyond the control of such Lender, including any Governmental Action. None of the above shall affect, impair, or prevent the vesting of the Issuing Bank’s rights or powers hereunder, or otherwise limit the indemnities provided for in Section 9.3 or in any of the LOC Documents.

(iii) In furtherance and extension and not in limitation of the specific provisions hereinabove set forth, any action taken or omitted by any Lender (including the Issuing Bank), under or in connection with any Letter of Credit or the related certificates, if taken or omitted in good faith, shall not put such Lender under any resulting liability to the Borrower or any other Loan Party. It is the intention of the parties that this Agreement shall be construed and applied to protect and indemnify each Lender (including the Issuing Bank) against any and all risks involved in the issuance of the Letters of Credit, all of which risks are hereby assumed by the Borrower (on behalf of itself and each of the other Loan Parties), including any and all Governmental Action. No Lender (including the Issuing Bank) shall, in any way, be liable for any failure by such Lender or anyone else to pay any drawing under any Letter of Credit as a result of any Government Action or any other cause beyond the control of such Lender.

(iv) Nothing in this Section 2.2.J is intended to limit the reimbursement obligations of the Borrower contained in Section 2.2.D above. The obligations of the Borrower under this Section 2.2.J shall survive the termination of this Agreement. No act or omission of any current or prior beneficiary of a Letter of Credit shall in any way affect or impair the rights of the Lenders (including the Issuing Bank) to enforce any right, power or benefit under this Agreement.

(v) Notwithstanding anything to the contrary contained in this Section 2.2.J, the Borrower shall not have any obligation (a) to indemnify any Lender (including the Issuing Bank) in respect of any liability incurred by such Lender to the extent arising out of the gross negligence or willful misconduct of such Lender, as determined in a final judgment of a court of competent jurisdiction, or (b) to indemnify the Issuing Bank to the extent caused by the Issuing Bank’s failure to pay under any Letter of Credit after presentation to it of a request strictly complying with the terms and conditions of such Letter of Credit, as determined in a final judgment of a court of competent jurisdiction, unless such payment is prohibited by any Legal Requirement.

K. Responsibility of Issuing Bank. It is expressly understood and agreed that the obligations of the Issuing Bank hereunder to the Lenders are only those expressly set forth in this Agreement and that the Issuing Bank shall be entitled to assume that the conditions precedent set

forth in Sections 3.2 have been satisfied as of the applicable Letter of Credit Date unless it shall have been notified in writing by the Borrower or the Administrative Agent that any such condition precedent has not been satisfied; provided, however, that nothing set forth in this Section 2.2 shall be deemed to prejudice the right of any Lender to recover from the Issuing Bank any amounts made available by such Lender to the Issuing Bank pursuant to this Section 2.2 in the event that it is determined by a court of competent jurisdiction that the payment with respect to a Letter of Credit constituted gross negligence or willful misconduct on the part of the Issuing Bank.

L. Conflict with LOC Documents. In the event of any conflict between this Agreement and any LOC Document (including any letter of credit application), this Agreement shall control.

Section 2.3. Interest on the Loans.

A. Rate of Interest. Subject to the provisions of Sections 2.3.E, 2.6 and 2.7, each Term 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 or the Adjusted Eurodollar Rate. The applicable basis for determining the rate of interest with respect to any Term Loan shall be selected by the Borrower initially at the time a Loan/Letter of Credit Request is given with respect to such Loan pursuant to Section 2.1.B, and the basis for determining the interest rate with respect to any Term Loan may be changed from time to time pursuant to Section 2.3.D. If on any day a Term Loan is outstanding with respect to which notice has not been delivered to the 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 Term Loan shall bear interest determined by reference to the Base Rate.

Subject to the provisions of Sections 2.3.E, 2.6 and 2.7, until they are paid in full the Loans shall bear interest as follows:

(i) if a Term Loan that is a Base Rate Loan, then at a rate equal to the sum of the Base Rate plus the Applicable Margin for the applicable Class of Term Loans; or

(ii) if a Term Loan that is a Eurodollar Rate Loan, then at a rate equal to the sum of the Adjusted Eurodollar Rate plus the Applicable Margin for the applicable Class of Term Loans; or

(iii) if a Revolving Loan, that is a Base Rate Loan, then at a rate equal to the sum of the Base Rate plus the Applicable Margin for Revolving Loans that are Base Rate Loans; or

(iv) if a Revolving Loan, that is a Eurodollar Rate Loan, then at a rate equal to the sum of the Adjusted Eurodollar Rate plus the Applicable Margin for Revolving Loans that are Eurodollar Rate Loans

B. Interest Periods. In connection with each Loan that is a Eurodollar Rate Loan, the Borrower may, pursuant to the applicable Loan/Letter of Credit Request 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 the Borrower’s option, either a one, two, three or six month period; provided that:

(i) the initial Interest Period for any Term Loan that is a Eurodollar Rate Loan shall commence on the Loan Date in respect of such Term Loan, in the case of a Term Loan initially made as a Eurodollar Rate Loan, or on the date specified in the applicable Notice of Conversion/Continuation, in the case of a Term Loan converted to a Eurodollar Rate Loan;

(ii) in the case of immediately successive Interest Periods applicable to a Eurodollar Rate 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 clause (iii) of this Section 2.3.B, end on the last Business Day of a calendar month;

(v) no Interest Period with respect to any portion of Term Loan A shall extend beyond the Term Loan A Maturity Date and no Interest Period with respect to any portion of Term Loan B shall extend beyond the Term Loan B Maturity Date;

(vi) no Interest Period with respect to any portion of a Class of Term Loans shall extend beyond a date on which the Borrower is required to make a scheduled payment of principal of such Class of Term Loans unless the sum of (a) the aggregate principal amount of Term Loans of that Class that are Base Rate Loans plus (b) the aggregate principal amount of Term Loans of that Class that are Eurodollar Rate Loans with Interest Periods expiring on or before such date plus (c) the excess of the Revolving Loan Commitments then in effect (after giving effect to any reduction or termination of the Revolving Loan Commitments that is scheduled to occur prior to the end of such Interest Period) over the aggregate principal amount of the Revolving Loans and Letter of Credit Obligations then outstanding equals or exceeds the principal amount required to be paid on the Term Loans of such Class on such date;

(vii) there shall be no more than eight Interest Periods outstanding at any time; and

(viii) in the event the Borrower fails to specify an Interest Period for any Eurodollar Rate Loan in the applicable Loan/Letter of Credit Request or Notice of Conversion/Continuation, the Borrower shall be deemed to have selected an Interest Period of one month.

C. Interest Payments. Subject to the provisions of Section 2.3.E, interest on each Loan shall be payable in arrears on and to each Interest Payment Date applicable to that Loan, upon any prepayment of a Term Loan (to the extent accrued on the amount being prepaid) and at maturity (including final maturity).

D. Conversion or Continuation. Subject to the provisions of Section 2.6 and Section 2.1.B(i), the Borrower shall have the option (i) to convert at any time all or any part of its outstanding Term Loans bearing interest at a rate determined by reference to one basis to Term Loans bearing interest at a rate determined by reference to an alternative basis or (ii) upon the expiration of any Interest Period applicable to a Eurodollar Rate Loan, to continue all or any portion of such Loan as a Eurodollar Rate Loan; provided, however, that a Eurodollar Rate Loan may only be converted into a Base Rate Loan on the expiration date of an Interest Period applicable thereto.

The Borrower shall deliver a Notice of Conversion/Continuation to the Administrative Agent no later than 10:00 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 Eurodollar Rate Loan). 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 Eurodollar Rate Loan, the requested Interest Period, and (v) in the case of a conversion to, or a continuation of, a Eurodollar Rate Loan, that no Potential Event of Default or Event of Default has occurred and is continuing. Further, the submission by the Borrower of a Notice of Conversion/Continuation shall constitute a re-certification by the Borrower, as of the date of the proposed conversion/continuation, as to the matters to which the Borrower certified to in the applicable Loan/Letter of Credit Request and Loan/Letter of Credit Certificate.

Except as otherwise provided in Sections 2.6.B and 2.6.C, a Notice of Conversion/Continuation for conversion to, or continuation of, a Eurodollar Rate Loan shall be irrevocable on and after the related Interest Rate Determination Date, and the Borrower shall be bound to effect a conversion or continuation in accordance therewith.

E. Default Rate. Upon the occurrence and during the continuation of any Event of Default, the outstanding principal amount of all Loans and, to the extent permitted by applicable law, any interest payments thereon not paid when due and any fees and other amounts then due and payable hereunder, shall thereafter bear interest (including post-petition interest in any proceeding under the Bankruptcy Code or other applicable bankruptcy laws) payable upon demand at a rate that is 2.00% per annum in excess of the interest rate otherwise payable under this Agreement with respect to the applicable Loans (or, in the case of any such fees and other amounts, at a rate which is 2.00% per annum in excess of the interest rate otherwise payable under this Agreement for Revolving Loans that are Base Rate Loans); provided that, in the case of Eurodollar Rate Loans, upon the expiration of the Interest Period in effect at the time any such increase in interest rate is effective, such Eurodollar Rate Loans shall thereupon become Base Rate Loans and shall thereafter bear interest payable upon demand at a rate which is 2.00% per annum in excess of the interest rate otherwise payable under this Agreement for Loans of the

applicable Class that are Base Rate Loans. Payment or acceptance of the increased rates of interest provided for in this Section 2.3.E 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 the Administrative Agent or any Lender.

F. Computation of Interest. Interest on the Loans shall be computed on the basis of a 360-day year, except that interest computed by reference to the Base Rate at times when the Base Rate is based on the Prime Rate shall be computed on the basis of a 365 day year (or 366 days in a leap year), and in each case interest shall be payable for the actual number of days elapsed in the period during which it accrues. In computing interest on any Loan, (i) the date of the making of such Loan, (ii) the first day of an Interest Period applicable to such Loan and (iii) with respect to a Base Rate Loan being converted from a Eurodollar Rate Loan, the date of conversion of such Eurodollar Rate Loan to such Base Rate Loan, in each case 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 Eurodollar Rate Loan, the date of conversion of such Base Rate Loan to such Eurodollar Rate 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.

Section 2.4. Fees.

A. Letter of Credit Fees.

(i) The Borrower agrees to pay to the Issuing Bank, for its own account, on the date of issuance of any Letter of Credit, a facing fee equal to 0.125% per annum on the initial face amount and stated duration of each such Letter of Credit (the “LOC Facing Fee”).

(ii) The Borrower shall also pay to the Administrative Agent, for the account of the Lenders, a fee equal to the undrawn amount of each Letter of Credit multiplied by the then Applicable Margin for Revolving Loans that are Eurodollar Loans (the “Letter of Credit Fee”).

(iii) The Letter of Credit fees referred to in clause (ii) above shall be calculated on the basis of a 360-day year and the actual number of days elapsed and shall 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.

B. Unused Facility Fees. The Borrower shall pay to the Administrative Agent, for the account of the Lenders, unused facility fees for the period from and after the Closing Date until but excluding the Revolving Loan Maturity Date in an amount equal to the Unused Revolving Loan Commitments multiplied by 0.50% per annum. The unused facility fees shall be calculated on the basis of a 360-day year and the actual number of days elapsed and shall 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 Maturity Date. Notwithstanding anything to the contrary herein, any unused facility fee accrued with respect to any of the Commitments of a Defaulting Lender during the Fiscal Quarter prior to

the time such Lender became a Defaulting Lender and unpaid at such time shall not be payable by the Borrower so long as such Lender shall be a Defaulting Lender except to the extent that such unused facility fee shall otherwise have been due and payable by the Borrower prior to such time; and provided further that no unused facility fee shall accrue on any of the Commitments of a Defaulting Lender so long as such Lender shall be Defaulting Lender.

C. Annual Administrative Fee. The Borrower shall pay to the Administrative Agent an annual administrative fee in an amount equal to $75,000 per annum from and including the Closing Date to and including the Term Loan B Maturity Date. Such administrative fee shall be payable yearly in advance, commencing on the Closing Date and thereafter on each anniversary of the Closing Date.

D. Other Fees. The Borrower shall pay such other fees, costs and expenses as are set forth in the Fee Letters, in each case in the amounts, and at the times, provided for in the Fee Letters.

Section 2.5. Repayments, Prepayments and Reductions in Commitments; General Provisions Regarding Payments.

A. Scheduled Payments of Loans.

(i) On the Revolving Loan Maturity Date, the entire remaining unpaid principal amount of the Revolving Loans shall be due and payable by the Borrower. On each of the dates set forth below, principal payments of the Term Loans shall be payable by the Borrower in the amounts set forth opposite each such date for the applicable Class of Loans:

Term Loan A:


Date		Amount of Payment (stated as a percentage of principal balance of Term Loan A after its advance on the Closing Date)

On each of December 31, 2005, March 31, 2006, June 30, 2006 and September 30, 2006		0.25% (i.e. 1% in the aggregate for such payments)

On each of December 31, 2006, March 31, 2007, June 30, 2007 and September 30, 2007		1.625% (i.e. 6.5% in the aggregate for such payments)

On each of December 31, 2007, March 31, 2008, June 30, 2008 and September 30, 2008		5.625% (i.e. 22.5% in the aggregate for such payments)


Date		Amount of Payment (stated as a percentage of principal balance of Term Loan A after its advance on the Closing Date)

On each of December 31, 2008, March 31, 2009, June 30, 2009 and September 30, 2009		7.5% (i.e. 30% in the aggregate for such payments)

On each of December 31, 2009, March 31, 2010 and June 30, 2010		10% (i.e. 30% in the aggregate for such payments)

Term Loan A Maturity Date		Any remaining balance of Term Loan A

Term Loan B:


Date		Amount of Payment (stated as a percentage of principal balance of Term Loan B after it is advanced on Closing Date)

On each of December 31, 2005, March 31, 2006, June 30, 2006 and September 30, 2006		0.00% (i.e. 0.0% in the aggregate for such payments)

On each of December 31, 2006, March 31, 2007, June 30, 2007 and September 30, 2007		0.25% (i.e. 1.0% in the aggregate for such payments)

On each of December 31, 2007, March 31, 2008, June 30, 2008 and September 30, 2008		1.25% (i.e. 5.0% in the aggregate for such payments)

On each of December 31, 2008, March 31, 2009, June 30, 2009 and September 30, 2009		1.25% (i.e. 5% in the aggregate for such payments)

On each of December 31, 2009, March 31, 2010, June 30, 2010 and September 30, 2010		2.50% (i.e. 10% in the aggregate for such payments)


Date		Amount of Payment (stated as a percentage of principal balance of Term Loan B after it is advanced on Closing Date)
On each of December 31, 2010, March 31, 2011 and June 30, 2011		19.75% (i.e. 59.25% in the aggregate for such payments)

Term Loan B Maturity Date		Any remaining balance of Term Loan B

The Borrower shall make all such amounts due and payable under this subsection A available to the Administrative Agent not later than 12:00 Noon (New York City time) on the applicable payment date, in immediately available funds in Dollars, at the Funding and Payment Office.

B. Prepayments and Unscheduled Reductions in Commitments.

(i) Voluntary Prepayments. The Borrower may, upon not less than three Business Day’s prior written notice given to the Administrative Agent by 12:00 Noon (New York City time) on the date required, at any time and from time to time prepay, without premium or penalty, any Loan on any Business Day in whole or in part in an aggregate minimum principal amount of $1,000,000 and integral multiples of $100,000 in excess of that amount (the amount due upon such prepayment being equal to the principal amount being so prepaid plus accrued and unpaid interest thereon, plus with respect to any Eurodollar Rate Loan not prepaid on the expiration of the Interest Period applicable thereto, any amount payable pursuant to Section 2.6.D). The Borrower’s notice to the Administrative Agent shall designate (a) the date (which shall be a Business Day) of such prepayment, (b) whether such prepayment applies to Term Loans or Revolving Loans (and to which Term Loans or Revolving Loans the prepayment applies) and (c) the amount of such prepayment. 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 Section 2.5.C.

(ii) Voluntary Reductions of Revolving Loan Commitments. The Borrower may, upon not less than three Business Days’ prior written notice given to the Administrative Agent by 12:00 Noon (New York time) on the date required, at any time and from time to time, without premium or penalty, terminate in whole or permanently reduce in part the Revolving Loan Commitments; provided that (a) the Borrower may not terminate or reduce the Revolving Loan Commitments to an amount less than the Total Utilization of Revolving Loan Commitments and (b) any such partial reduction of the Revolving Loan Commitments shall be in an aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in excess of that amount. The Borrower’s notice to the Administrative Agent shall designate (x) the date (which shall be a Business Day) of such termination or reduction, and (y) the amount of any such reduction or termination. Notice of such reduction or termination having been given as aforesaid, such termination or reduction of the Revolving Loan Commitments shall be effective on the date specified

in the Borrower’s notice and shall reduce the Revolving Loan Commitment of each Lender proportionately by its Pro Rata Share thereof.

(iii) Mandatory Prepayments. The Borrower shall prepay the Loans and the Commitments shall be permanently reduced in the amounts, at the times and under the circumstances set forth below:

(a) Prepayments Due to Issuance of Debt or Equity. Subject to Section 2.5.B(iv) below, on the fifth Business Day following the date of receipt by any member of the Borrower Group of the Cash proceeds (any such proceeds, net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, including reasonable legal fees and expenses, being “Net Proceeds”) from the incurrence of any Indebtedness by, or issuance of any equity of, any member of the Borrower Group, the Borrower shall pay to the Administrative Agent for the account of the Lenders for application to the Loans (i) 100% of the Net Proceeds in respect of any such Indebtedness incurrence (other than those incurrences permitted pursuant to Section 6.1), (ii) 75% of the Net Proceeds in respect of any such equity issuance in the event the Consolidated Leverage Ratio of the Borrower Group equals or exceeds 3.00 to 1.00 and (iii) 50% of the Net Proceeds in respect of any such equity issuance in the event the Consolidated Leverage Ratio of the Borrower Group is less than 3.00 to 1.00.

(b) Prepayments From Net Asset Sale Proceeds. Subject to Section 2.5.B(iv) below, (i) no later than the fifth Business Day following the date of receipt by any member of the Borrower Group of any Net Asset Sale Proceeds in respect of any Asset Sale, the Borrower shall pay to the Administrative Agent for the account of the Lenders for application to the Loans an amount equal to 100% of such Net Asset Sale Proceeds (which, in the case of Net Asset Sale Proceeds received by a Canadian Subsidiary, shall be applied, first, to the extent of the balance of the 2005 Canadian Investment Note, and, second, to the extent of the balance of the 2004 Canadian Investment Note, in each case, as a prepayment of such 2005 Canadian Investment Note and/or 2004 Canadian Investment Note to fund (to the extent of such prepayment) all or a portion of the mandatory prepayment required by this clause (b)); provided, however, that no such reduction in Commitments and payment of Loans shall be required if such Net Asset Sale Proceeds were received by any such member pursuant to an Excluded Asset Sale at a time when no Event of Default has occurred and is continuing, and (ii) no later than the fifth Business Day following the date that any reserve maintained for adjustment in respect of the sale price of the assets sold in any such Asset Sale (as referred to in clause (vi) of the definition of Net Asset Sale Proceeds) or with respect to any liabilities associated with the assets disposed of in such Asset Sale is no longer required or is reduced, the Borrower shall pay to the Administrative Agent for the account of the Lenders for application to the Loans an amount equal to 100% of the amount of such reserve (if it is no longer required to be maintained) or of such reduction of such reserve.

(c) Prepayments from Receipt of Casualty Proceeds. Subject to Section 2.5.B(iv) below, on the fifth Business Day following the date of receipt by any member of the Borrower Group of any Casualty Proceeds, the Borrower shall pay to the Administrative Agent for the account of the Lenders for application to the Loans an amount equal to 100% of such Casualty Proceeds (which, in the case of Casualty Proceeds received by a Canadian Subsidiary, shall be applied, to the extent of the balance of the Canadian Investment Note, as a prepayment of the Canadian Investment Note to fund (to the extent of such prepayment) all or a portion of the mandatory prepayment required by this clause (c)); provided, however, that no such reduction in the Commitments shall be required if (1) the Borrower delivers to the Administrative Agent an accurate and complete Reinvestment Notice in respect of such Casualty Proceeds within such five Business Day period and (2) such Casualty Proceeds are reinvested by such member within 180 days of the receipt by such member thereof in assets related to a Permitted Business at a time when no Event of Default has occurred and is continuing.

(d) Prepayments from Excess Cash Flow. If the Borrower Group has Excess Cash Flow greater than zero for any Fiscal Year commencing with the Fiscal Year ending December 31, 2006, on the Excess Cash Flow Application Date, the Borrower shall pay to the Administrative Agent for the account of the Lenders for application to the Loans an amount equal to (1) the amount of such Excess Cash Flow multiplied by (2) 50%. The “Excess Cash Flow Application Date” shall be the fifth Business Day following the date on which the financial statements of the Borrower Group referred to in Section 5.1 for the Fiscal Year with respect to which such reduction in commitment is made are required to be delivered to the Administrative Agent.

(iv) Calculations of Net Proceeds Amounts; Additional Prepayments Based on Subsequent Calculations. Concurrently with any prepayment of the Loans pursuant to this Section 2.5.B, the Borrower shall deliver to the Administrative Agent an Officer’s Certificate executed by a Responsible Officer demonstrating the calculation of the amount (the “Net Proceeds Amount”) of the applicable Net Asset Sale Proceeds, the applicable Net Proceeds, the applicable Casualty Proceeds or other amounts, as the case may be, that gave rise to such prepayment and/or reduction. In the event that the Borrower subsequently determines that the actual Net Proceeds Amount was greater than the amount set forth in such Officer’s Certificate, the outstanding Term Loans shall be automatically reduced in an amount equal to the amount of such excess in accordance with Section 2.5.C(ii), and the Borrower shall concurrently therewith deliver to the Administrative Agent an Officer’s Certificate executed by a Responsible Officer demonstrating the derivation of the additional Net Proceeds Amount resulting in such additional prepayment.

(v) Prepayments Due to Reductions of Commitments. The Borrower shall from time to time prepay 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, unless the Total Utilization of Revolving Loan

Commitments exceeds the Revolving Loan Commitments by virtue of the expiration of the Revolving Loan Commitments at the end of the Revolving Loan Availability Period pursuant to clause (i) of the definition thereof. The amount due upon any such prepayment shall be equal to the principal amount being so paid, plus accrued and unpaid interest thereon, plus, with respect to any Loan not prepaid on the expiration of the Interest Period applicable thereto, any amount payable pursuant to Section 2.6.D. In addition, if as a result of any reduction in Commitments pursuant to this Section 2.5, the Revolving Loan Exposure exceeds the Revolving Loan Commitment so reduced because Letter of Credit Obligations constitute a portion thereof, the Borrower shall, in an amount equal to the amount of such excess, replace outstanding Letters of Credit and/or deposit an amount in immediately available funds an amount equal to 105% of such excess in a cash collateral account established with the Administrative Agent for the benefit of the Issuing Bank and the Lenders an terms and conditions reasonably satisfactory to the Administrative Agent (and the Borrower hereby grants to the Administrative Agent, for the ratable benefit of the Issuing Banks and the Lenders, a continuing security interest in all amounts at any time on deposit in such cash collateral account to secure all Letter of Credit Obligations from time to time outstanding and all other Obligations).

C. Application of Prepayments and Reductions of Loan Commitments.

(i) Any voluntary prepayments pursuant to Section 2.5.B(i) shall be applied as specified by the Borrower in the applicable notice of prepayment; provided that if the Borrower fails to specify the Loans to which any such prepayment shall be applied, such prepayment shall be applied first to repay the Term Loan A in the inverse order of maturity, second to repay the Term Loan B in the inverse order of maturity and third to repay outstanding Revolving Loans (such voluntary prepayment shall not give rise to any permanent reduction in the Revolving Loan Commitment).

(ii) Any mandatory prepayments pursuant to Section 2.5.B(iii)(a) through (d) shall be applied first to repay the Term Loan A in the inverse order of maturity, second to repay the Term Loan B in the inverse order of maturity and third to repay outstanding Revolving Loans and, after the occurrence and during the continuance of a Potential Event of Default or an Event of Default, to the provision of cash collateral in respect of Letter of Credit Obligations in an amount equal to 105% of the Letter of Credit Obligations and to permanently reduce the Revolving Loan Commitment.

D. General Provisions Regarding Payments.

(i) Manner and Time of Payment. All payments by the Borrower of principal, interest, fees, expenses and other Obligations hereunder and under the Notes shall be made in Dollars in immediately available funds, without defense, set-off or counterclaim, free of any restriction or condition, and delivered to the Administrative Agent not later than 12:00 Noon (New York City time) on the date due at the Funding and Payment Office for the account of the Lenders; funds received by the Administrative Agent after that time on such due date shall be deemed to have been paid by the Borrower on the next succeeding Business Day.

(ii) Application of Payments to Principal and Interest. 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 shall be applied to the payment of interest before application to the payment of principal.

(iii) Apportionment of Payments. Aggregate principal and interest payments in respect of Loans shall be apportioned among all outstanding Loans proportionately to the Lenders’ respective Pro Rata Shares. Notwithstanding the foregoing provisions of this Section 2.5.D(iii), if, pursuant to the provisions of Section 2.6, 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 Eurodollar Rate Loans, the 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.

(v) Notation of Payment. Each Lender agrees that before disposing of any Note held by it, or any part thereof (other than by granting participations therein), that Lender may make a notation thereon of all Loans evidenced by that Note and all principal payments previously made thereon and of the date to which interest thereon has been paid; provided that the failure to make (or any error in the making of) a notation of any Loan made under such Note shall not limit or otherwise affect the obligations of the Borrower hereunder or under such Note with respect to any Loan or any payments of principal or interest on such Note.

Section 2.6. Special Provisions Governing Eurodollar Rate Loans.

Notwithstanding any other provision of this Agreement to the contrary, the following provisions shall govern with respect to Eurodollar Rate 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) on each Interest Rate Determination Date, the Administrative Agent shall determine (which determination shall, absent manifest error, be final, conclusive and binding upon all parties) the interest rate that shall apply to the Eurodollar Rate 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 the Borrower and each Lender.

B. Inability to Determine Applicable Interest Rate. In the event that the Administrative Agent shall have determined (which determination shall be final, conclusive and binding upon all parties hereto), on any Interest Rate Determination Date with respect to any Eurodollar Rate Loans, that, by reason of circumstances affecting the interbank Eurodollar market, 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 Adjusted Eurodollar Rate, the Administrative Agent shall on such date give notice (by telefacsimile or by telephone confirmed in writing) to the Borrower and each Lender of such determination, whereupon (i) no Loans may be made as, or converted to, Eurodollar Rate Loans until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and (ii) any Loan/Letter of Credit Request or Notice of Conversion/Continuation given by the Borrower with respect to the Loans in respect of which such determination was made shall be deemed to be made with respect to Base Rate Loans.

C. Illegality or Impracticability of Eurodollar Rate Loans. In the event that on any date any Lender shall have determined (which determination shall be final, conclusive and binding upon all parties hereto but shall be made only after consultation with the Borrower and the Administrative Agent) that the making, maintaining or continuation of its Eurodollar Rate 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 not in effect on the date such Person became a Lender (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) would cause such Lender material financial hardship as a result of contingencies occurring after the date of this Agreement which materially and adversely affect the interbank Eurodollar market or the position of such Lender in that market, 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 Borrower and the Administrative Agent of such determination (which notice the 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, Eurodollar Rate Loans shall be suspended until such notice shall be withdrawn by the Affected Lender (which such Affected Lender shall do at the earliest practicable date), (b) to the extent such determination by the Affected Lender relates to a Eurodollar Rate Loan then being requested by the Borrower pursuant to a Loan/Letter of Credit Request 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 Eurodollar Rate 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) the Affected Loans shall automatically convert into Base Rate Loans on the date of such termination. Except as provided in the immediately preceding sentence, nothing in this Section 2.6.C shall affect the obligation of any Lender other than an Affected Lender to make or maintain Loans as, or to convert Loans to, Eurodollar Rate Loans in accordance with the terms of this Agreement.

D. Compensation For Breakage or Non-Commencement of Interest Periods. The Borrower shall compensate each Lender, upon written request by that Lender (which request shall set forth the basis for requesting such amounts), for all reasonable losses (not including lost profits), expenses and liabilities (including any interest paid by that Lender to lenders of funds borrowed by it to make or carry its Eurodollar Rate Loans and any loss, expense or liability sustained by that Lender in connection with the liquidation or re-employment of such funds) which that Lender may sustain: (i) if for any reason (other than a default by that Lender) a borrowing of any Eurodollar Rate Loan does not occur on a date specified therefor in a Loan/Letter of Credit Request, or a conversion to or continuation of any Eurodollar Rate Loan

does not occur on a date specified therefor in a Notice of Conversion/Continuation, (ii) if any prepayment (including any prepayment pursuant to Section 2.5.B) or other principal payment or any conversion of any of its Eurodollar Rate Loans occurs on a date prior to the last day of an Interest Period applicable to that Loan, (iii) if any prepayment of any of its Eurodollar Rate Loans is not made on any date specified in a notice of prepayment given by the Borrower, or (iv) as a consequence of any other default by the Borrower in the repayment of its Eurodollar Rate Loans when required by the terms of this Agreement.

E. Booking of Eurodollar Rate Loans. Any Lender may make, carry or transfer Eurodollar Rate Loans at, to, or for the account of any of its branch offices or the office of an Affiliate of that Lender.

Section 2.7. Increased Costs; Taxes; Capital Adequacy.

A. Compensation for Increased Costs and Taxes. Subject to the provisions of Section 2.7.B (which shall be controlling with respect to the matters covered thereby), in the event that any Lender shall determine (which determination shall, absent manifest error, be final, conclusive and binding upon all parties hereto) after the date hereof that any law, treaty or governmental rule, regulation or order, or any change therein or in the interpretation, administration or application thereof (including the introduction of any new law, treaty or governmental rule, regulation or order), or any determination of a court or governmental authority, in each case that becomes effective after the date hereof, or compliance by such 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):

(i) subjects such Lender (or its applicable lending office) to any additional Tax (other than any Tax on the overall net income of such Lender) 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;

(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; 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 interbank Eurodollar market;

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 Borrower shall promptly pay to such Lender, upon 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 sole 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 promptly deliver to the Borrower (with a copy to the Administrative Agent) a written statement setting forth in reasonable detail the basis for calculating the additional amounts owed to such Lender under this Section 2.7.A, which statement shall be final, conclusive and binding upon all parties hereto absent manifest error.

B. Withholding of Taxes.

(i) Payments to Be Free and Clear. All sums payable by the Borrower 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 Tax (other than a Tax on the overall net income of any Lender or any franchise Tax imposed on any Lender by the jurisdiction (or political subdivision thereof) under the laws of which such Lender is organized or in which such Lender is doing business; provided, however, that solely carrying out the transactions contemplated by this Agreement, standing alone, shall not be considered “doing business”) (all such Taxes being hereinafter collectively referred to as “Included Taxes”).

(ii) Grossing-up of Payments. If the Borrower or any other Person is required by law to make any deduction or withholding on account of any such Included Tax from any sum paid or payable by the Borrower to the Administrative Agent or any Lender under any of the Loan Documents:

(a) the Borrower shall notify the Administrative Agent of any such requirement or any change in any such requirement as soon as the Borrower becomes aware of it;

(b) the Borrower shall pay any such Included Tax before the date on which penalties attach thereto, such payment to be made (if the liability to pay is imposed on the Borrower) for its own account or (if that liability is imposed on the Administrative Agent or such Lender, as the case may be) on behalf of and in the name of the Administrative Agent or such Lender;

(c) the sum payable by the 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, the 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 the due date of payment of any Included Tax which it is required by clause (b) above to pay, the Borrower shall deliver to the Administrative 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 with respect to (and only to the extent of) any deduction or withholding applicable as of the date hereof (in the case of each Lender listed on the signature pages hereof) or the date of the Assignment Agreement pursuant to which such Lender became a Lender (in the case of each other Lender), in respect of payments to such Lender.

In addition, the Borrower agrees to pay any present or future stamp, mortgage recording or documentary taxes or any other excise or property taxes, charges or similar levies which arise from any payment made under this Agreement or any of the other Loan Documents or from the execution, delivery or registration of, or otherwise with respect to, this Agreement or any of the other Loan Documents (hereinafter referred to as “Other Taxes”) and hold the Administrative Agent and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay or omission (other than to the extent attributable to such Lender) to pay such Other Taxes.

(iii) Evidence of Exemption from United States 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 Section 2.7.B(iii) a “Non-US Lender”) shall deliver to the Administrative Agent for delivery to the Borrower, 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 reasonably requested by the Borrower or the Administrative Agent (each in the reasonable exercise of its discretion) (1) two original copies of Internal Revenue Service Form W-8BEN (claiming benefits under an applicable treaty) or W-8ECI (or any successor forms), properly completed and duly executed by such Lender, together with any other certificate or statement of exemption required under the Code or the regulations issued thereunder to establish that such Lender is not subject to (or is subject to a reduced rate of) 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 Code and cannot deliver either Internal Revenue Service Form W-8BEN or W-8ECI pursuant to clause (1) above, a Certificate Regarding Non-Bank Status together with two original copies of Internal Revenue Service Form W-8BEN (or any successor form), properly completed and duly executed by such Lender, together with any other certificate or statement of exemption or reduction required under the Code or the regulations issued thereunder to establish that such Lender is exempt from or entitled to a reduction in the amount of the 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.

(b) Each Lender required to deliver any forms, certificates or other evidence with respect to United States federal income tax withholding matters pursuant to Section 2.7.B(iii) 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) to the extent that it may lawfully do so, deliver to the Administrative Agent for delivery to the Borrower two new original copies of Internal Revenue Service Form W-8BEN or W-8ECI, or a Certificate Regarding Non-Bank Status and two original copies of Internal Revenue Service Form W-8BEN, as the case may be, properly completed and duly executed by such Lender, together with any other certificate or statement of exemption or reduction required in order to confirm or establish that such Lender is exempt from or entitled to a reduction in the amount of the deduction or withholding of United States federal income tax with respect to payments to such Lender under the Loan Documents or (2) notify the Administrative Agent and the Borrower of its inability to deliver any such forms, certificates or other evidence.

(c) The Borrower shall not be required to pay any additional amount to any Non-US Lender under clause (c) of Section 2.7.B(ii) to the extent any deduction or withholding is a result of such Lender’s failure to satisfy the requirements of clause (a) or (b)(1) of this Section 2.7.B(iii); provided that if such Lender shall have satisfied the requirements of Section 2.7(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 Section 2.7.B(iii)(c) shall relieve the Borrower of its obligation to pay any additional amounts otherwise payable pursuant to clause (c) of Section 2.7.B(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 Section 2.7.B(iii).

(d) The Borrower will indemnify the Administrative Agent and any Lender for the full amount of Included Taxes or Other Taxes arising in connection with payments made under this Agreement or any other Loan Document (including any Included Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 2.7.B) paid by the Administrative Agent or any Lender or any of their respective Affiliates and any liability (including penalties, additions to tax, interest and expenses) arising therefrom or with respect thereto). Payment under this indemnification shall be made within fifteen days from the date the Administrative Agent or any Lender or any of their respective Affiliates makes written demand therefor; provided, however, that the Borrower shall not be obligated to make payment to the Lenders or the Administrative Agent (as the case may be) pursuant to this Section 2.7.B(iii) in respect of penalties, interest and other liabilities attributable to any Included Taxes or Other Taxes if written demand therefor has not been made by such Lender or the Administrative Agent within 60 days from the date on which such Lender or the Administrative Agent received written notice of the imposition of Included Taxes

or Other Taxes by the relevant taxing or governmental authority, but only to the extent such penalties, interest and other similar liabilities are attributable to such failure or delay by the Administrative Agent or the Lender in making such written demand. After the Lender or the Administrative Agent (as the case may be) has received written notice of the imposition of the Included Taxes or Other Taxes which are subject to this Section 2.7.B(iii), such Lender and the Administrative Agent will act in good faith to promptly notify the Borrower of its obligations under this Agreement; provided, however, that the failure to so act shall not, standing alone, affect the rights of the Administrative Agent or the Lenders under this Section 2.7.B(iii).

C. Capital Adequacy Adjustment. If any Lender shall have determined that the adoption, effectiveness, phase-in or applicability after the date hereof of any law, rule or regulation (or any provision thereof) regarding capital adequacy, or any change therein or in the interpretation or administration thereof after the date hereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or 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) of any such governmental authority, central bank or comparable agency, 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, or with reference to, such Lender’s Loans or participations therein or other obligations hereunder with respect to the Loans to a level below that which such Lender or such controlling corporation could have achieved but for such adoption, effectiveness, phase-in, applicability, 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, within five Business Days after receipt by the Borrower from such Lender of the statement referred to in the next sentence, the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling corporation on an after-tax basis for such reduction. Such Lender shall promptly deliver to the Borrower (with a copy to the 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 manifest error.

Section 2.8. Obligation of the Lenders to Mitigate.

Each Lender agrees that, as promptly as practicable after the officer of such Lender responsible for administering the Loans of such Lender becomes aware of the occurrence of an event or the existence of a condition that would cause such Lender to become an Affected Lender or that would entitle such Lender to receive payments under Section 2.7, it will, to the extent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions, use reasonable efforts to (i) make, issue, fund or maintain the Commitments of such Lender or the affected Loans of such Lender through another lending office of such Lender or (ii) take such other measures as such Lender may deem reasonable, 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 pursuant to Section 2.7 would be materially reduced and if, as determined by such Lender in its sole discretion, the making, issuing, funding or maintaining of such Commitments

or Loans through such other lending office or in accordance with such other measures, as the case may be, would not otherwise materially adversely affect such Commitments or Loans or the interests of such Lender; provided that such Lender will not be obligated to utilize such other lending office pursuant to this Section 2.8 if such Lender would incur incremental expenses as a result of utilizing such other lending office as described in clause (i) above. A certificate as to the amount of any such expenses payable by the Borrower pursuant to this Section 2.8 (setting forth in reasonable detail the basis for requesting such amount) submitted by such Lender to the Borrower (with a copy to the Administrative Agent) shall be conclusive and binding absent manifest error.

ARTICLE III.

CONDITIONS PRECEDENT TO THE EFFECTIVE DATE AND TO ALL LOANS ON

THE EFFECTIVE DATE

Section 3.1. Conditions Precedent to the Effective Date and Loans.

The occurrence of the Effective Date, the obligation of the Lenders to make or convert Loans on the Effective Date, and the obligation of the Issuing Bank to issue or continue Letters of Credit on the Effective Date, are subject, at the time of each such event (except as otherwise hereinafter indicated), to the satisfaction of each of the following conditions:

A. Loan Documents. The Administrative Agent shall have received, with a counterpart for each Lender, each of the following documents, in form and substance acceptable to the Administrative Agent:

(i) this Agreement, duly executed and delivered by each of the parties hereto;

(ii) the Notes, if any, duly executed and delivered by the Borrower;

(iii) the Security Agreement, duly executed and delivered by the members of the Borrower Group (other than the Canadian Subsidiaries);

(iv) the Guaranty, duly executed and delivered by the members of the Borrower Group (other than the Borrower and the Canadian Subsidiaries);

(v) the Pledge Agreement, duly executed and delivered by the members of the Borrower Group (other than the Canadian Subsidiaries);

the Blocked Account Agreements, duly executed and delivered by the members of the Borrower Group and the applicable third-party financial institutions;

(vii) the Control Agreement, duly executed and delivered by the members of the Borrower Group and the applicable third-party financial institution;

(vi) the Intercreditor Agreement, duly executed and delivered by the Second Lien Administrative Agent and acknowledged by the members of the Borrower Group;

(vii) the Borrower Group Release, duly executed and delivered by members of the Borrower Group;

(viii) a confirmation and reaffirmation of the Loan Documents, Consents, the obligations under the 2004 Canadian Investment Note and the Canadian Revolver Note and other collateral documents, duly executed and delivered by each member of the Borrower Group and the Administrative Agent in form and substance acceptable to the Lenders, pursuant to which the members of the Borrower Group party thereto confirm and ratify the continuing effect of their Guaranty Agreements, Security Agreements, Pledge Agreements, Control Agreements in respect of all accounts identified on Schedule 3.1.A attached hereto, Blocked Account Agreements in respect of the accounts identified on Schedule 3.1.B, Consents, the obligations under the 2004 Canadian Investment Note and the Canadian Revolver Note and other Loan Documents as of the Closing Date and after giving effect to the amendment and restatement of this Agreement as set forth herein; and

(ix) the Master Assignment and Acceptance Agreement.

B. Financial Documents. The Administrative Agent and the Lenders shall have received, reviewed, and be satisfied with:

(i) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of each of Parent and Borrower prepared in accordance with GAAP for the fiscal year ending on December 31, 2004 for the preceding fiscal year,

(ii) unaudited consolidated balance sheets and related statements of income and cash flows of each of Parent and Borrower prepared in accordance with GAAP for each month and fiscal quarter ending through June 2005 and 30 days prior to the Closing Date and for the comparable periods of the preceding fiscal year (the “Unaudited Financial Statements”),

(iii) pro forma consolidated balance sheet and related statements of income and cash flows for Borrower (the “Pro Forma Financial Statements”), as well as pro forma levels of EBITDA and other operating data (the “Pro Forma Data”), for the twelve months ended July 2005 (to the extent necessary to reflect any changes to the structure of the Redemption and the Series C Preferred Share Payments from the structure contemplated and presented to the Administrative Agent on September 7, 2005) and each month covered by the Unaudited Financial Statements and for the latest twelve-month period ending more than 30 days prior to the Closing Date, in each case after giving effect to the Redemption and the Series C Preferred Share Payments and other transactions contemplated hereby, and

(iv) forecasts of the financial performance of Borrower and its Subsidiaries for the next five (5) fiscal years of Borrower following the Closing Date.

The Pro Forma Financial Statements and Pro Forma Data, including the pro forma EBITDA, shall be prepared on a basis consistent with the Pro Forma Financial Statements delivered to

Administrative Agent and Lead Arrangers prior to the date hereof and shall be consistent in all material respects with the projections provided previously to Administrative Agent and Lead Arrangers.

C. No Material Adverse Change. Since December 31, 2004, no event shall have occurred and no circumstance shall exist (and neither the Lenders nor the Administrative Agent shall have become aware of any facts or conditions not previously known) which the Administrative Agent or the Required Lenders shall determine (a) has, or is reasonably likely to have, a material adverse effect on the rights or remedies of the Lenders or the Administrative Agent hereunder or under any other Loan Document, or on the ability of the Borrower or Guarantors to perform their obligations to the Lenders and Administrative Agent hereunder or under any other Loan Document, or (b) has, or is reasonably likely to have, a Material Adverse Effect.

D. Material Contracts. The Administrative Agent shall have received a true and complete copy of each Material Contract (other than those that have been previously delivered to the Administrative Agent), duly certified as such and as being in full force and effect as of the Closing Date by a Responsible Officer of the Borrower.

E. Legal Opinions. The Administrative Agent shall have received, with a counterpart for each Lender, the legal opinion of Holland & Knight, LLP, counsel to the members of the Borrower Group, in form and substance reasonably satisfactory to the Lenders, dated as of the Closing Date.

F. Security Interests (Recordings and Filings). Each of the documents and instruments set forth in Schedule 4.15.A (i) shall have been delivered to the Administrative Agent for recording or filing or (ii) shall have been recorded or filed in the respective places or offices set forth in Schedule 4.15.A and, in each such case, any and all recording and filing fees with respect thereto shall have been paid, and each of the other actions set forth in Schedule 4.15.A shall have been taken.

▇. ▇▇▇▇ Searches. The Administrative Agent shall have received searches of UCC filings in the respective jurisdictions in which each member of the Borrower Group (other than the Canadian Subsidiary) is organized, the respective jurisdictions in which the chief executive offices of the Parent and the Borrower are located, and the respective jurisdictions in which any Collateral owned by any member of the Borrower Group (other than a Canadian Subsidiary) is located, and each other jurisdiction in which a filing would need to be made in order to perfect the Administrative Agent’s security interest in the Collateral owned by the members of the Borrower Group (other than a Canadian Subsidiary), copies of the financing statements on file in such jurisdictions and other evidence that the Administrative Agent may reasonably require to confirm that no Liens exist as of the Closing Date other than Permitted Liens.

H. No Violation of Law. The consummation of the transactions contemplated by the Loan Documents shall not violate any Legal Requirements.

I. Corporate Proceedings of the Loan Parties. The Administrative Agent shall have received a copy of the resolutions, in form and substance reasonably satisfactory to the

Administrative Agent, of the Board of Directors, Manager or General Partner of each member of the Borrower Group that is executing any Loan Documents on the Closing Date authorizing, among other things, (i) the execution, delivery and performance of each Loan Document that it is executing, (ii) with respect to the Borrower, the Loans and Letters of Credit contemplated hereunder and (iii) the granting by it of the Liens created pursuant to the Collateral Documents to which it is a party, certified by the Secretary or Assistant Secretary of such member of the Borrower Group as of the Closing Date, which certificate shall be in form and substance reasonably satisfactory to the Administrative Agent and shall state that the resolutions thereby certified (x) are accurate and complete and (y) are in full force and effect as of the Closing Date.

J. Incumbency Certificate of the Loan Parties. The Administrative Agent shall have received a certificate of each Loan Party that is executing any Loan Documents on the Closing Date, dated as of the Closing Date, as to the incumbency and signature of the officers of such Loan Party executing any Loan Document, in form and substance reasonably satisfactory to the Administrative Agent, executed by the Chairman, the Chief Executive Officer, the Manager or the President and the Secretary or any Assistant Secretary of such Loan Party.

K. Corporate Documents. The Administrative Agent shall have received accurate and complete copies of the certificate or articles of incorporation, certificate of formation, by-laws and limited liability company agreements (or such other organizational and governing documents as may be in existence) of each member of the Borrower Group, certified as of the Closing Date as accurate and complete copies thereof by a Responsible Officer of each such member of the Borrower Group.

L. Good Standing Certificates. The Administrative Agent shall have received certificates of good standing, existence, foreign qualification or its equivalent with respect to the each member of the Borrower Group, each certified as of a date not more than twenty-one (21) days prior to the Closing Date by the appropriate Government Instrumentality of (i) the jurisdiction of organization and the principal place of business of such Person, and (ii) each other jurisdiction in which the failure to so qualify and be in good standing could reasonably be expected to have a Material Adverse Effect.

M. Insurance. The Administrative Agent shall have received copies of insurance policies or certificates of insurance of each member of the Borrower Group (other than the Canadian Subsidiaries) evidencing insurance meeting the requirements set forth in Section 5.6 including naming the Administrative Agent as additional insured (in the case of liability insurance) or sole loss payee (in the case of hazard insurance) on behalf of the Lenders.

N. Governmental and Third-Party Consents. The Administrative Agent shall have received evidence satisfactory to the Required Lenders that each consent, authorization, clearance, notice and filing required to be made or obtained by or on behalf of any Loan Party in connection with the consummation of the transactions contemplated hereby have been made or obtained.

O. Representations and Warranties. All representations and warranties made by the Borrower and each other Loan Party in any Loan Document shall be true and correct in all material respects as of the Closing Date (unless any such representation or warranty relates

solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date).

P. No Potential Event of Default or Event of Default. No Potential Event of Default or Event of Default shall have occurred and be continuing as of the Closing Date.

Q. Closing Date Certificate. The Administrative Agent shall have received the Closing Date Certificate in the form of Exhibit C hereto, dated as of the Closing Date and duly executed by a Responsible Officer of the Borrower, stating that (i) all representations and warranties made by the Borrower in any Loan Document are true and correct in all material respects as of the Closing Date (unless any such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date), (ii) to the best of such Responsible Officer’s knowledge, all representations and warranties made by each other Loan Party in any Loan Document are true and correct in all material respects as of the Closing Date (unless any such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date), (iii) no Potential Event of Default or Event of Default shall have occurred and be continuing as of the Closing Date, and (iv) the Consolidated Leverage Ratio as of the Closing Date, calculated on a pro forma basis to include the Redemption, is less than 4.00 to 1.00.

R. Solvency Certificate. The Administrative Agent shall have received the Solvency Certificate in the form of Exhibit I hereto, dated as of the Closing Date and duly executed by the Chief Financial Officer or Treasurer of each of the Material Subsidiaries and the Parent, or of such entity’s direct or indirect manager, as the case may be, regarding the financial condition, solvency and related matters of each of the Material Subsidiaries and the Parent.

S. Loan/Letter of Credit Request. The Administrative Agent shall have received a properly completed Loan/Letter of Credit Request in accordance with Section 2.1.B or Section 2.2.B, as applicable, executed by a Responsible Officer of the Borrower.

T. Loan/Letter of Credit Certificate. The Administrative Agent shall have received a properly completed Loan/Letter of Credit Certificate executed by a Responsible Officer of the Borrower in accordance with Section 2.1.B or Section 2.2.B, as applicable, dated as of the applicable Loan Date or Letter of Credit Date.

U. Fees and Expenses. The Borrower shall have paid (or shall concurrently pay) to each of the Lenders and the Agents any and all other fees, expenses and costs relating to this Agreement, the Fee Letters, the other Loan Documents and the transactions contemplated hereby and thereby which are due and payable on the Closing Date.

V. Assumptions Regarding Sources and Uses. The assumptions relating to the proposed sources and uses of funds set forth in Schedule 1 to the term sheet dated September 6, 2005 (including indebtedness or preferred equity of the Borrower Group after giving effect to the Redemption and the Series C Preferred Share Payments) shall be acceptable to the Agents and the Lenders in their sole discretion.

W. Redemption and Series C Preferred Share Payments Documents. The Administrative Agent, the Lead Arrangers and the Lenders shall have reviewed, and be satisfied with, the final terms and conditions and shall have received copies, certified to be true and complete, of each of the documents relating to the Redemption and the Series C Preferred Share Payments, together with all schedules, exhibits and ancillary and other support documentation relating thereto, in each case in form and substance satisfactory to the Administrative Agent, Lead Arrangers and the Lenders.

X. Closing of the Second Lien Credit Agreement and Second Lien Collateral Documents. Concurrently with the occurrence of the Effective Date, the Second Lien Credit Agreement and the other Second Lien Collateral Documents, each in form and substance reasonably satisfactory to the Administrative Agent, shall be effective and the Second Lien Administrative Agent and the lenders thereunder shall have funded the term loan facilities provided pursuant to the terms thereof.

Section 3.2. Conditions Precedent to All Loans.

The making of any Loan or the issuance of any Letter of Credit shall be subject to the fulfillment, or waiver (a) by each of the Lenders on the Effective Date of the conditions set forth in Section 3.1, and (b) by the Supermajority Lenders on the date of each Loan and the date of each issuance of a Letter of Credit after the Effective Date, of each of the following additional conditions precedent, provided that any waiver granted by the Lenders in respect of a Loan or the issuance of a Letter of Credit shall only be effective in respect of such Loan or Letter of Credit, as the case may be, and shall not, unless subsequently waived in respect of a subsequent Loan or Letter of Credit, be effective as to any subsequent Loan or Letter of Credit:

A. Representations and Warranties. All representations and warranties made by the Borrower and each other Loan Party in any Loan Document shall be true and correct in all material respects as of the applicable Loan Date or Letter of Credit Date, as the case may be (unless any such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date).

B. No Potential Event of Default or Event of Default. No Potential Event of Default or Event of Default shall have occurred and be continuing as of the applicable Loan Date or Letter of Credit Date, as the case may be.

C. Loan/Letter of Credit Request. The Administrative Agent shall have received a properly completed Loan/Letter of Credit Request in accordance with Section 2.1.B or Section 2.2.B, as applicable, executed by a Responsible Officer of the Borrower.

D. Loan/Letter of Credit Certificate. The Administrative Agent shall have received an accurate and complete Loan/Letter of Credit Certificate in accordance with Section 2.1.B or Section 2.2.B, as applicable, dated as of the applicable Loan Date or Letter of Credit Date, as the case may be, executed by a Responsible Officer of the Borrower which will include without limitation certification as to the amount of Cash and Cash Equivalents (not including Restricted Cash) that the Borrower Group has.

▇▇

▇. ▇▇▇▇▇▇▇▇ Compliance. The Loan/Letter of Credit Certificate delivered by the Borrower to the Administrative Agent in connection with the requested Loan or Letter of Credit shall demonstrate in reasonable detail that, immediately before and after giving effect to the making of the applicable Loan or the issuance of the applicable Letter of Credit and the intended application of the proceeds therefrom, the Borrower Group is in pro forma compliance with each of the covenants set forth in Section 6.6, calculated based on the most recent quarterly Financial Statements delivered to the Administrative Agent pursuant to Section 5.1 on or prior to the applicable Letter of Credit Date or Loan Date.

F. Maximum Amount of Cash. With respect to any request for a Revolving Loan, after giving effect to such Loan, the Borrower Group (other than the Canadian Subsidiaries) shall have no more than $4,000,000 in Cash and Cash Equivalents (not including Restricted Cash).

ARTICLE IV.

REPRESENTATIONS AND WARRANTIES

In order to induce the Lenders to enter into this Agreement and to make the Loans, and to induce the Issuing Bank to issue the Letters of Credit, the Borrower represents and warrants to the Administrative Agent, the Issuing Bank and each Lender that, on the Closing Date and on each Loan Date and each Letter of Credit Date after the Closing Date (provided that, with respect to the deemed representations and warranties herein on each Loan Date and Letter of Credit Date after the Closing Date, the representation and warranty in Sections 4.1D and 4.2C, the last sentence of Section 4.4, the first sentence of Sections 4.7 and 4.12, and Section 4.14, shall be deemed to have been updated by any information provided by the Borrower to the Administrative Agent in writing prior to such Loan Date or Letter of Credit Date which expressly refers to the Section hereof that it is updating):

Section 4.1. Organization, Powers, Qualification, Good Standing, Business and Subsidiaries.

A. Organization and Powers. Each Loan Party is a legal entity duly organized, validly existing and in good standing under the laws of its jurisdiction of formation. Each Loan Party has all requisite corporate power and authority to own and operate its properties, to carry on its business as now conducted and as proposed to be conducted, to enter into the Loan Documents and the Material Contracts to which it is a party and to carry out the transactions contemplated thereby.

B. Qualification and Good Standing. Each Loan Party is qualified to do business and is in good standing in its jurisdiction of formation or organization and every other jurisdiction where its assets are located and wherever necessary to carry out its business and operations, except where the failure to be so qualified or in good standing could not reasonably be expected to have a Material Adverse Effect.

C. Ownership. All of the direct and indirect Subsidiaries of the Parent are identified in Schedule 4.1.C hereto, as such Schedule 4.1.C may be amended, supplemented or otherwise modified from time to time in connection with the creation or acquisition by any Loan Party of a new Subsidiary. The Equity Interests of each of the Subsidiaries of the Parent are identified in

Schedule 4.1.C hereto (as so amended, supplemented or otherwise modified) and such Equity Interests are duly authorized, validly issued and fully paid and nonassessable and none of such Equity Interests constitutes Margin Stock. Schedule 4.1.C hereto (as so amended, supplemented or otherwise modified ) completely and correctly sets forth the ownership of each direct and indirect Subsidiary of the Parent. Schedule 4.1.C (as so amended, supplemented or otherwise modified ) correctly identifies whether each such Subsidiary is a Restricted Subsidiary or an Unrestricted Subsidiary (it being understood that no Subsidiary of the Borrower or any of its direct or indirect Subsidiaries may become an Unrestricted Subsidiary after the Closing Date). As of the Closing Date, none of the Unrestricted Subsidiaries conducts any business or has any assets or Indebtedness except as listed on Schedule 4.1.C. Schedule 4.1.C (as so amended, supplemented or otherwise modified ) correctly sets forth a list of each Subsidiary that was once a Loan Party and is now a defunct entity no longer in legal existence (the “Defunct Subsidiaries”).

D. Rights to Acquire Equity Interests. There are no options, warrants, convertible securities or other rights to acquire any Equity Interests in any Loan Party except as set forth as Schedule 4.1.D, as such Schedule 4.1.D may be supplemented from time to time in connection with the creation or acquisition by any Loan Party of a new Subsidiary.

E. Conduct of Business. No member of the Borrower Group is engaged in any material respect in any business which is not a Permitted Business.

Section 4.2. Authorization of Borrowing, etc.

A. Authorization of Borrowing. The execution, delivery and performance of the Loan Documents have been duly authorized by all necessary action on the part of each Loan Party that is a party thereto.

B. No Conflict. The execution, delivery and performance by each Loan Party of the Loan Documents and Material Contracts to which it is a party and the consummation of the transactions contemplated by the Loan Documents and the Material Contracts do not and will not:

(i) violate any provision of (a) any Legal Requirement applicable to such Loan Party which violation could reasonably be expected to have a Material Adverse Effect, (b) the certificate or articles of incorporation, certification of formation, by-laws or limited liability company agreements (or any other organizational or governing document) of such Loan Party or (c) any order, judgment or decree of any court or agency or Governmental Instrumentality binding on such 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 of such Loan Party which violation could reasonably be expected to have a Material Adverse Effect,

(iii) result in or require the creation or imposition of any Lien upon any of the properties or assets of such Loan Party (other than any Liens created under any of the Loan Documents in favor of the Administrative Agent for the benefit of the Lenders), or

(iv) require any approval of stockholders or members of any Loan Party, or any approval or consent of any Person under any Contractual Obligation of such Loan Party except for such approvals or consents which will be obtained on or before the Closing Date and which are disclosed in writing to the Administrative Agent pursuant to Section 3.1.N.

C. Governmental Consents. Except for those consents and approvals listed in Schedule 4.2 (which have been received and are in full force and effect), the execution, delivery and performance by each Loan Party of the Loan Documents to which they are parties and the consummation of the transactions contemplated by the Loan Documents do not and will not require any registration with, consent or approval of, or notice to, or other action to, with or by, any Governmental Instrumentality.

D. Binding Obligation. The Original Credit Agreement as amended by this Third Amended and Restated Credit Agreement, and each of the other Loan Documents and Material Contracts has been duly executed and delivered by each Loan Party that is party hereto or thereto, as applicable, 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, whether brought in a proceeding in equity or at law. The Pre-Effective Date Indebtedness is validly jointly and severally owed by the Borrower and each of the Guarantors to the Lenders and neither the Borrower nor any of the Guarantors has any defense, offset, counterclaim or right of recoupment with respect to the obligation of the Borrower and the Guarantors to pay such Pre-Effective Date Indebtedness.

Section 4.3. Solvency.

Both before and after giving effect to the transactions contemplated by this Agreement, each of the Material Subsidiaries and the Parent is and will be Solvent.

Section 4.4. Financial Condition.

In the case of each financial statement and accompanying information delivered by the Borrower hereunder, each such financial statement and information shall have been prepared in conformity with GAAP and fairly present, in all material respects, the financial position (on a consolidated and, where applicable, consolidating 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 and, where applicable, consolidating basis) of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. Except for obligations under the Material Contracts and the Loan Documents and as set forth on Schedule 4.4, the Borrower Group does not have any contingent obligations, unmatured liabilities, contingent liability or liability for taxes, long-term lease or forward or long-term commitment that is not reflected in the foregoing financial statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, financial condition or prospects of the members of the Borrower Group taken as a whole.

Section 4.5. No Material Adverse Effect.

Since December 31, 2004 no development, event or change in respect of the Borrower Group has occurred that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect.

Section 4.6. Title to Properties; Liens; Real Property; Accounts.

A. Title to Properties; Liens. Each member of the Borrower Group has (i) good marketable and insurable fee simple title to (in the case of fee interests in real property), (ii) valid leasehold interests in (in the case of leasehold interests in real or personal property), or (iii) good title to (in the case of all other personal property), all of their respective material properties and assets reflected in the financial statements referred to in Section 4.4 or in the most recent financial statements delivered pursuant to Section 5.1, in each case except for assets Disposed of since the date of such financial statements in the ordinary course of business or as otherwise permitted under Section 6.7. Except as permitted by this Agreement, all such properties and assets are held free and clear of Liens.

B. Real Property. As of the Closing Date, Schedule 4.6 contains an accurate and complete list of (i) all material properties owned by the members of the Borrower Group and (ii) all material leases, subleases or assignments of leases (together with all amendments, modifications, supplements, renewals or extensions of any thereof) affecting real estate of properties owned or leased by the members of the Borrower Group regardless of whether the relevant member of the Borrower Group is the landlord or tenant (whether directly or as an assignee or successor in interest) under such lease, sublease or assignment.

C. Accounts. As of the Closing Date, Schedule 4.6 contains an accurate and complete list of all deposit, checking and other bank accounts, all securities and other accounts maintained with any broker dealer and all other similar accounts maintained by each member of the Borrower Group, together with a description thereof (i.e., the bank or broker dealer at which such deposit or other account is maintained and the account number and the purpose thereof).

Section 4.7. Litigation; Adverse Facts.

Except as set forth in Schedule 4.7, there are no actions, suits, proceedings, arbitrations or governmental investigations at law or in equity, or before or by any arbitrator or Governmental Instrumentality, domestic or foreign (including any Environmental Claims) that are, to the knowledge of the Borrower, pending or threatened against or affecting any Loan Party or any property of any Loan Party, which, if adversely determined, could reasonably be expected to have a Material Adverse Effect. No Loan Party (i) is in violation of any applicable Legal Requirement (including Environmental Laws) or (ii) is subject to or in default with respect to any final judgments, writs, injunctions, decrees, rules or regulations of any court or any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which could reasonably be expected to have a Material Adverse Effect.

Section 4.8. Payment of Taxes.

All tax returns and reports of each Loan Party required to be filed by any such Person have been timely filed, and all taxes required to be paid with respect to such tax returns to be due and payable and all material assessments, fees and other governmental charges upon each Loan Party and upon their respective properties, assets, income, businesses and franchises which are due and payable have been paid when due and payable other than any of the foregoing (i) that is being actively contested by such Person in good faith and by appropriate proceedings or (ii) which could not reasonably be expected to have a Material Adverse Effect. There is no proposed tax assessment against any Loan Party which could reasonably be expected to have a Material Adverse Effect that is not being actively contested by such Person in good faith and by appropriate proceedings and for which reserves or other appropriate provisions, if any, as shall be required in conformity with GAAP shall not have been made or provided therefor.

Section 4.9. Performance of Agreements; Material Contracts.

A. Except as set forth on Schedule 4.9, no Loan Party is in default in the performance, observance or fulfillment of any of the material obligations, covenants or conditions contained in any of its Material Contracts and no condition exists that, with the giving of notice or the lapse of time or both, would constitute such a default, or that would permit the counterparty to any Material Contract to terminate the Material Contract to which it is a party. Except as set forth on Schedule 4.9, no Loan Party is in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any of its contracts and no condition exists that, with the giving of notice or the lapse of time or both, would constitute such a default, which, taken as a whole, would have a Material Adverse Effect.

B. Schedule 4.9 contains an accurate and complete list of all the Material Contracts in effect on the Closing Date. Except as described on Schedule 4.9, such Material Contracts are in full force and effect and no defaults currently exist thereunder.

Section 4.10. Governmental Regulation.

No Loan Party is subject to regulation under the Public Utility Holding Company Act of 1935, the Federal Power Act, or the Interstate Commerce Act, nor is an “investment company” as defined in the Investment Company Act of 1940, or subject to regulation under the Investment Company Act of 1940, or under any other federal or state statute or regulation which may limit its ability to incur Indebtedness or which may otherwise render all or any portion of the Obligations unenforceable.

Section 4.11. Securities Activities.

The Borrower is not engaged nor will it engage in the business of extending credit for the purpose of “buying” or “carrying” any “margin stock” within the respective meanings of each of the quoted terms under Regulations T, U and X of the Board of Governors of the Federal Reserve System as now and from time to time hereafter in effect. No portion of the proceeds of any Loan made or Letter of Credit issued under this Agreement will be used for “buying” or “carrying” any “margin stock” as so defined or for any purpose which violates the provisions of the Regulations of such Board of Governors.

Section 4.12. Labor Matters.

Except as disclosed and described in Schedule 4.12, there are no collective bargaining agreements or Multiemployer Plans covering the employees of a Loan Party as of the Closing Date. No Loan Party is engaged in any unfair labor practice that could reasonably be expected to have a Material Adverse Effect. There is no strike, labor dispute, union organizing activity, slowdown or stoppage pending or, to the best knowledge of the Borrower, threatened against any Loan Party which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

Section 4.13. Certain Fees.

Except as set forth as Schedule 4.13, no broker’s or finder’s fee or commission will be payable with respect to this Agreement or any of the transactions contemplated hereby (other than fees payable to the Lead Arrangers, the Administrative Agent, the Issuing Bank and the Lenders), and the Borrower hereby indemnifies the Lead Arrangers, the Administrative Agent, the Issuing Bank and the Lenders against, and agrees that it will hold each of the Lead Arrangers, the Administrative Agent, the Issuing Bank and the Lenders harmless from, any claim, demand or liability for any such broker’s or finder’s fees alleged to have been incurred in connection herewith or therewith and any expenses (including reasonable fees, expenses and disbursements of counsel) arising in connection with any such claim, demand or liability.

Section 4.14. Environmental Protection.

Except as set forth in Schedule 4.14 hereto:

(i) no Loan Party nor any site or operation of any Loan Party is subject to any outstanding written order or consent decree with any Government Instrumentality or outstanding settlement agreement with any Person relating to (a) any Environmental Law, (b) any Environmental Claim or (c) any Hazardous Materials Activity;

(ii) no Loan Party has received any letter or written request for information under Section 104 of the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9604) or any comparable state law;

(iii) there are and, to the Borrower’s knowledge, have been, no conditions, occurrences, or Hazardous Materials Activities on any site, location or operation, which could reasonably be expected to form the basis of a material Environmental Claim against any Loan Party; and

(iv) no Loan Party nor, to the Borrower’s knowledge, any predecessor of any Loan Party has filed any notice under any Environmental Law indicating past or present treatment of Hazardous Materials at any site or operation of any Loan Party, and no Loan Party’s operations involves the generation, transportation, treatment, storage or disposal of hazardous waste, as defined under 40 C.F.R. Parts 260-270 or any state equivalent.

Notwithstanding anything in this Section 4.14 to the contrary, no facts or circumstances exist and no event or condition is occurring or, to the Borrower’s knowledge has occurred, with

respect to any Loan Party relating to any Environmental Law, any Release of Hazardous Materials, or any Hazardous Materials Activity, including any matter disclosed on Schedule 4.14 hereto or any Loan Party’s compliance with all current or reasonably foreseeable future requirements of Environmental Law, that individually or in the aggregate could reasonably be expected to have a Material Adverse Effect.

Section 4.15. Matters Relating to Collateral.

A. Creation, Perfection and Priority of Liens.

(i) As of the date that each of the Collateral Documents has been executed and delivered on or before the Closing Date, the execution and delivery of such Collateral Document by the Loan Parties, together with the actions taken on or prior to the date hereof set forth in Schedule 4.15.A, are effective to create in favor of the Administrative Agent for the benefit of the Secured Parties, as security for the Obligations, a valid and perfected First Priority Lien on all of the Collateral described therein (other than (x) real property on which no mortgage has been granted, (y) deposit accounts that are not required to be Blocked Accounts pursuant to Section 5.11.A(ii) and, (z) to the extent that no Liens have been nor will be granted by the Canadian Subsidiaries on assets owned by the Canadian Subsidiaries, such assets owned by the Canadian Subsidiaries).

(ii) After the Closing Date (or such later date, as applicable), the execution and delivery of the Collateral Documents by the Loan Parties, together with the actions taken on or prior to such date set forth in Schedule 4.15.A or Section 5.11, are effective to create in favor of the Administrative Agent for the benefit of the Secured Parties, as security for the Obligations, a valid and perfected First Priority Lien on all of the Collateral described therein (other than (x) real property on which no mortgage has been granted, (y) deposit accounts that are not required to be Blocked Accounts pursuant to Section 5.11.A(ii) and, (z) to the extent that no Liens have been nor will be granted by the Canadian Subsidiaries on assets owned by the Canadian Subsidiaries, such assets owned by the Canadian Subsidiaries).

(iii) All filings and other actions necessary to perfect and maintain the perfection and priority status of the Liens purported to be afforded by the Collateral Documents (other than Liens on real property on which no mortgage has been granted and as described more fully in Schedule 4.9) have been duly made or taken and remain in full force and effect, other than the filing of any UCC financing statements delivered to the Administrative Agent for filing (but not yet filed) and the periodic filing of UCC continuation statements in respect of UCC financing statements filed by or on behalf of the Administrative Agent.

B. Governmental Actions. No authorization, approval or other action by, and no notice to or filing with, any Governmental Instrumentality is required for either (i) the pledge or grant by any Loan Party of the Liens purported to be created in favor of the Administrative Agent pursuant to any of the Collateral Documents or (ii) the exercise by the Administrative Agent of any rights or remedies in respect of any Collateral (whether specifically granted or

created pursuant to any of the Collateral Documents or created or provided for by applicable law), except for filings or recordings set forth in Schedule 4.15.A.

C. Absence of Third-Party Filings. Except such as may have been (i) filed in favor of the Administrative Agent as contemplated by Section 4.15.A or (ii) filed to perfect a Lien permitted under Section 6.2, no effective UCC financing statement, fixture filing or other instrument similar in effect covering all or any part of the Collateral is on file in any filing or recording office.

D. Filing Location. As of the Closing Date, the “chief executive office,” “major executive office,” “principal place of business” and jurisdiction of formation of each member of the Borrower Group are set forth in Schedule 4.15.D.

E. Information Regarding Collateral. All information supplied to the Administrative Agent by or on behalf of any Loan Party with respect to any of the Collateral (in each case taken as a whole with respect to any particular Collateral) is accurate and complete in all material respects.

Section 4.16. Immunity.

No Loan Party is entitled to claim for itself or any of its assets immunity from suit, execution, attachment or other legal process in any proceeding in any jurisdiction in connection with any of the Loan Documents to which it is a party.

Section 4.17. Additional Matters.

A. Disclosure. The written factual information furnished by (or based on written information furnished by) the members of the Borrower Group to the Lenders in connection with the negotiation of this Agreement (excluding any financial projections and other estimates or views of future circumstances), taken as a whole, does not contain, as of the Closing Date, any untrue statements of material fact and does not omit to state, as of the Closing Date, any material fact necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not materially misleading (unless superseded or corrected and disclosed in writing to the Administrative Agent prior to the Closing Date). Any additional information provided to the Lenders by the members of the Borrower Group will be true and correct in all material respects. The Projections delivered to the Administrative Agent were prepared in good faith and were based on assumptions which were reasonable at the time prepared. The updated Projections, when delivered in accordance with Section 5.3, shall have been, as of the date delivered to the Administrative Agent in accordance with the terms hereof, prepared by the Borrower in good faith and shall have been based on assumptions which were reasonable at the time prepared.

B. Licenses and Permits. Each Loan Party has obtained and holds in full force and effect, free from burdensome restrictions, all Governmental Actions, franchises, leases, qualifications, easements, rights of way and other rights and approvals which are necessary for the operation of its business as presently conducted, except where the failure to obtain such rights and approvals, individually and in the aggregate, could not be reasonably expected to have a Material Adverse Effect. No Loan Party is in violation of the terms or conditions of any such

Governmental Action, franchise, lease, qualification, easement, right of way, right or approval, which violation could reasonably be expected to have a Material Adverse Effect.

C. Intellectual Property. Each Loan Party has obtained and holds in full force and effect the Intellectual Property, free from burdensome restrictions, which is necessary for the operation of its business as presently conducted except for that Intellectual Property which the failure to own or license could not reasonably be expected to have a Material Adverse Effect. No product, process, method, substance, part or other material presently sold or employed by any Loan Party in connection with such business infringes any Intellectual Property owned by any other Person, except as could not, individually and in the aggregate, reasonably be expected to have a Material Adverse Effect. All of the material Intellectual Property owned or used by any Loan Party as of the Closing Date is set forth in Schedule 4.17. Upon the recordation or filing of the applicable Loan Documents, all material Intellectual Property owned, licensed or used by any Loan Party, other than Intellectual Property that is in the public domain and Intellectual Property with respect to which a Loan Party has a license the enforceable terms of which would prohibit the granting of a Lien by such Loan Party, is or will be subject to a First Priority Lien in favor of the Administrative Agent, for the benefit of the Secured Parties.

Section 4.18. Pro Forma Leverage Ratio on Closing Date.

The Consolidated Leverage Ratio as of the Closing Date, calculated on a pro forma basis based on the financial statements most recently delivered to the Administrative Agent to include the applicable financial information with respect to the Redemption and the Series C Preferred Share Payments, is less than 4.00 to 1.00.

ARTICLE V.

BORROWER’S AFFIRMATIVE COVENANTS

The Borrower covenants and agrees that, so long as any of the Commitments hereunder shall remain in effect and until payment and performance in full of all of the Loans and other Obligations, such Person shall perform, and shall cause each member of the Borrower Group (including without limitation, pursuant to the definition of Borrower Group, the Canadian Subsidiaries) to perform, all covenants set forth in this Article V.

Section 5.1. Financial Statements and Other Reports.

The Borrower shall, and shall cause each member of the Borrower Group to, maintain a system of accounting established and administered in accordance with sound business practices to permit preparation of financial statements in conformity with GAAP. The Borrower shall deliver to the Administrative Agent, with a copy for each Lender, the following:

(i) Monthly Financials: as soon as available and in any event within 25 days after the end of each month, the monthly financial statements of the Borrower Group, for the prior month prepared by the Borrower for its internal purposes.

(ii) Quarterly Financials: as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year, the consolidated balance sheets of the Borrower Group, as at the end of such Fiscal Quarter

and the related consolidated statements of income and cash flows of the applicable entities 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 in comparative form the corresponding figures from the Projections for the current Fiscal Year, all in reasonable detail and certified by the chief financial officer or treasurer of the applicable entities, on behalf of the Borrower Group, that they fairly present, in all material respects, the financial condition of the applicable entities 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.

(iii) Year-End Financials: as soon as available and in any event 90 days after the end of each such Fiscal Year,

(a) the consolidated balance sheets of the Borrower Group, as at the end of such Fiscal Year and the related consolidated statements of income, stockholders’ or members’ equity and cash flows of the applicable entities for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year and the corresponding figures from the Projections for the Fiscal Year covered by such financial statements, all in reasonable detail and certified by the chief financial officer or treasurer of the Parent on behalf of the Borrower Group, that they fairly present, in all material respects, the financial condition of the entities included in such financial statements as at the dates indicated and the results of their operations and their cash flows for the periods indicated; and

(b) in the case of consolidated financial statements of the Borrower Group (and, if audited statements of any other group of entities that are included in the Borrower Group, those statements as well) specified in paragraph (a) above, a report thereon of PriceWaterhouse Coopers LLP or of any other of the so-called “Big 4” independent certified public accounting firms, which report shall be unqualified as to scope of audit, shall express no doubts about the ability of the Persons covered thereby to continue as a going concern, and shall state that such consolidated financial statements fairly present, in all material respects, the consolidated financial position of the entities included in such financial statements, as at the dates indicated and the results of their operations and their cash flows for the periods indicated 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.

(iv) Officers’ and Compliance Certificates: together with each delivery of financial statements pursuant to paragraphs (ii) and (iii) above:

(a) an Officer’s Certificate executed by the chief financial officer or treasurer of the applicable entities stating, on behalf of the Borrower Group, that after due inquiry, to such officer’s knowledge, there was not in existence during

or at the end of such accounting period, and there is not in existence as at the date of such Officer’s Certificate, any condition or event that constitutes an Event of Default or a Potential Event of Default, or, if any such condition or event existed or exists, specifying the nature and period of existence thereof and what action the Borrower has taken, is taking and proposes to take with respect thereto and

(b) a Compliance Certificate demonstrating in reasonable detail compliance during and at the end of the applicable accounting periods with the restrictions contained in Article V and Article VI;

(v) Reconciliation Statements: if, as a result of any change in accounting principles and policies from those used in the preparation of the audited financial statements referred to in Section 4.4, any of the financial statements delivered pursuant to paragraph (ii) or (iii) of this Section 5.1 will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such paragraphs had no such change in accounting principles and policies been made, then:

(a) together with the first delivery of financial statements pursuant to paragraph (ii) or (iii) of this Section 5.1 following such change, financial statements of the applicable group of entities for (y) the current Fiscal Year to the effective date of such change and (z) the two full Fiscal Years immediately preceding the Fiscal Year in which such change is made, in each case prepared on a pro forma basis as if such change had been in effect during such periods, and

(b) together with each delivery of financial statements pursuant to paragraph (ii) or (iii) of this Section 5.1 following such change, a written statement of the chief financial officer or treasurer of the Parent setting forth the differences (including any differences that would affect any calculations relating to the financial covenants set forth in Section 6.6) which would have resulted if such financial statements had been prepared without giving effect to such change;

(vi) Accountants’ Certification: together with each delivery of consolidated financial statements pursuant to paragraph (iii) above, a written statement by the independent certified public accountants giving the report thereon:

(a) stating that their audit examination has included a review of the terms of this Agreement and the other Loan Documents as they relate to accounting matters,

(b) stating whether, in connection with their audit examination, any condition or event that constitutes an Event of Default or Potential Event of Default has come to their attention and, if such a condition or event has come to their attention, specifying the nature and period of existence thereof; provided that such accountants shall not be liable by reason of any failure to obtain knowledge of any such Event of Default or Potential Event of Default that would not be disclosed in the course of their audit examination, and

(c) stating that based on their audit examination nothing has come to their attention that causes them to believe either or both that the information contained in the certificates delivered therewith pursuant to clause (b) of paragraph (v) above is not correct or that the matters set forth in the Compliance Certificates delivered therewith pursuant to clause (b) of paragraph (iv) above for the applicable Fiscal Year are not stated in accordance with the terms of this Agreement;

(vii) Accountants’ Reports: promptly upon receipt thereof (unless restricted by applicable professional standards), copies of all reports or “management letters” submitted to any member of the Borrower Group by independent certified public accountants in connection with each annual, interim or special audit of the financial statements of the Borrower Group made by such accountants, including any comment letter submitted by such accountants to management in connection with their annual audit;

(viii) SEC Filings, Press Releases and Other Financial Reports: promptly upon its becoming available, if ever, copies of:

(a) all financial statements, reports, notices and proxy statements sent or made available generally by any Loan Party to their security holders,

(b) all regular and periodic reports and all registration statements (other than on Form S-8 or a similar form) and prospectuses, if any, filed by any Loan Party with any securities exchange or with the Securities and Exchange Commission or any governmental or private regulatory authority and

(c) all press releases and other statements made available generally by any Loan Party to the public concerning material developments in the business of the members of the Borrower Group;

(ix) Events of Default, Etc.: promptly upon any Responsible Officer of the Borrower obtaining knowledge:

(a) of any condition or event that constitutes an Event of Default or Potential Event of Default, or becoming aware that any Lender has given any notice (other than to the Administrative Agent) or taken any other action with respect to a claimed Event of Default or Potential Event of Default,

(b) of (x) the receipt by a member of the Borrower Group of written notice that a default has occurred under any Colocation Lease or any other Material Contract, or (y) the existence of a default under one or more Colocation Leases and/or other Material Contracts which, taken individually or together, could have a Material Adverse Effect, in each case, within five Business Days of the event or circumstance referred to in clause (x) or (y), as applicable,

(c) that any Person has given any notice to any member of the Borrower Group or taken any other action with respect to a claimed default or event or condition of the type referred to in Section 7.11,

(d) any change in the certifying accountant of the Borrower Group (to the extent that such change would be required to be disclosed by Form 8-K if the Borrower was required to file Form 8-K with the Securities and Exchange Commission) or of any director of the Borrower resigning or declining to stand for re-election because of a disagreement with a member of the Borrower Group on any matter relating to the operations, policies or practices of any member of the Borrower Group (to the extent that such change would be required to be disclosed by Form 8-K if the Borrower was required to file Form 8-K with the Securities and Exchange Commission), or

(e) of the occurrence of any event or change that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect, an Officer’s Certificate specifying the nature and period of existence of such condition, event or change, or specifying the notice given or action taken by any such Person and the nature of such claimed Event of Default, Potential Event of Default, default, event or condition, and what action the Borrower has taken, is taking and proposes to take with respect thereto;

(x) Litigation or Other Proceedings: promptly upon any Responsible Officer of the Borrower obtaining knowledge of (1) the institution of, or written threat of, any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration against or affecting any member of the Borrower Group, or any property of a member of the Borrower Group (collectively, “Proceedings”) not previously disclosed in writing by the Borrower to the Lenders or (2) any development in any Proceeding that, in any case:

(a) if adversely determined, could reasonably be expected to have a Material Adverse Effect;

(b) seeks to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, the transactions contemplated hereby; or

(c) if adversely determined, could materially adversely impact the ability of the Borrower Group to achieve the most recent Projections delivered to the Administrative Agent,

written notice thereof together with such other information as may be reasonably requested by the Administrative Agent to enable the Lenders and their counsel to evaluate such matters;

(xi) ERISA Events: promptly upon becoming aware of the occurrence of or forthcoming occurrence of any event in connection with an Employee Benefit Plan or Multiemployer Plan which has had or could reasonably be expected to have a Material

Adverse Effect, a written notice specifying the nature of such event, what action the Borrower or any of its respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto and, when known, any action taken or threatened by the Internal Revenue Service, the Department of Labor or the PBGC with respect thereto;

(xii) Insurance: as soon as practicable and in any event by the last day of each Fiscal Year, a report in form and substance reasonably satisfactory to the Administrative Agent outlining all insurance coverage maintained as of the date of such report by the Borrower Group and all insurance coverage planned to be maintained by the Borrower Group in the immediately succeeding Fiscal Year;

(xiii) New Subsidiaries: promptly upon any Person becoming a Subsidiary of Parent, a written notice setting forth with respect to such Person:

(a) the date on which such Person became a Subsidiary of Parent, and

(b) all of the data required to be set forth in Schedule 4.1.C hereto with respect to all Subsidiaries of Parent (it being understood that such written notice shall be deemed to supplement Schedule 4.1.C hereto for all purposes of this Agreement); and

(xiv) Other Information: with reasonable promptness, such other information and data regarding the business, properties or financial condition of, or compliance with the terms and conditions of the Loan Documents by, any member of the Borrower Group, including, without limitation any financial statement or other report in respect of the Canadian Subsidiaries, as from time to time may be reasonably requested by the Administrative Agent or any Lender.

Section 5.2. Performance of Obligations; Conduct of Business.

The Borrower shall, and shall cause each member of the Borrower Group to, perform in all material respects all of its obligations under the terms of all Material Contracts to which it is a party or by which it is bound, provided, that any such Loan Party shall not be obligated to perform any such obligation if such obligation or the nature of such performance is being contested in good faith by appropriate proceedings promptly instituted and diligently conducted, or if such obligation arises in connection with a lease that is being terminated or cancelled prior to its stated expiration date if the Borrower is in compliance with Section 6.19 hereof. The Borrower shall, and shall cause each member of the Borrower Group to, operate and maintain its business in an efficient and business-like manner in accordance with good industry practice.

Section 5.3. Projections.

Within 30 days after the end of each Fiscal Year, the Borrower shall deliver a copy of updated Projections covering the period ending on the Term Loan B Maturity Date to the Administrative Agent. In addition, the Borrower shall promptly notify the Administrative Agent of any material change to the then current Projections.

Section 5.4. Existence.

The Borrower shall, and shall cause each member of the Borrower Group to, do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and take all reasonable action to maintain all rights, licenses, privileges and franchises necessary in the normal conduct of its business; provided that the foregoing shall not prohibit (a) any merger, consolidation, liquidation or dissolution permitted under Section 6.7, (b) any merger of members of the Borrower Group (other than a merger of a Person organized in the United States with a Person organized outside of the United States) as to which at least ten (10) days prior written notice is given to the Administrative Agent, (c) any dissolution of any member of the Borrower Group in connection with the closure of (i) any facility related to such member that is identified in Schedule 1.1.A as closing and (ii) any facility related to such member the lease for which is the subject of any litigation referred to on Schedule 4.7, or (d) the dissolution of a Subsidiary of the Borrower which has no assets or liabilities, is not a party to any contract, and conducts no business.

Section 5.5. Payment of Obligations.

The Borrower shall, and shall cause each member of the Borrower Group to, pay at or before maturity or before they become delinquent, as the case may be, all its material obligations of whatever nature, including all 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 penalty accrues thereon, and all claims (including claims for labor, services, materials and supplies) for sums that have become due and payable and that by law have or may become a Lien upon any of its properties or assets, prior to the time when any penalty or fine shall be incurred with respect thereto; provided that no such charge or claim need be paid if it is being contested in good faith by appropriate proceedings promptly instituted and diligently conducted, so long as such reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made therefor or if it is owed under a lease that is being terminated or cancelled prior to its stated expiration date if the Borrower is in compliance with Section 6.19 hereof.

Section 5.6. Maintenance of Properties; Insurance.

A. Maintenance of Properties. The Borrower shall, and shall cause each member of the Borrower Group to, maintain or cause to be maintained in good repair, working order and condition, ordinary wear and tear excepted, all material properties of the members of the Borrower Group and from time to time will make or cause to be made all appropriate repairs, renewals and replacements thereof except to the extent that such member of the Borrower Group, determines in good faith not to maintain, repair, renew or replace such property if such property is no longer desirable in respect of the business of such member of the Borrower Group and the failure to do so is not disadvantageous in any material respect to the members of the Borrower Group, taken as a whole.

B. Insurance. The Borrower shall, and shall cause each member of the Borrower Group to, at all times maintain, with financially sound and reputable insurers, in full force and effect insurance (including worker’s compensation insurance, liability insurance, casualty

insurance and business interruption insurance) in such amounts, covering such risks and liabilities and with such deductibles or self-insurance retentions as are in accordance with normal industry practice or as otherwise required by the Collateral Documents. The Administrative Agent shall be named as loss payee or mortgagee, as its interest may appear, and/or additional insured with respect to each such insurance providing coverage in respect of any Collateral, and, each provider of any such insurance shall agree, by endorsement upon the policy or policies issued by it or by independent instruments furnished to the Administrative Agent, that it will give the Administrative Agent 30 days prior written notice before any such policy or policies shall be materially altered or canceled, and that no act or default of any Loan Party or any other Person shall affect the rights of the Administrative Agent or the Lenders under such policy or policies. The present insurance coverage of the Loan Parties is outlined as to carrier, policy number, expiration date, type and amount on Schedule 5.6.

Section 5.7. Inspection; Lender Meeting.

A. Inspection Rights. The Borrower shall, and shall cause each member of the Borrower Group to, keep proper books of record and account in which full, true and correct entries in all material respects are made of all dealings and transactions in relation to its business and activities. Upon reasonable notice, during normal business hours and at the sole expense of the Lenders (or, if a Potential Event of Default or an Event of Default exists, at any time (during normal business hours) and at the sole expense of the Borrower), the Borrower shall, and shall cause each member of the Borrower Group to, permit representatives appointed by the Administrative Agent, including independent accountants, agents, representatives of Lenders, attorneys, and appraisers, to visit and inspect its property, including its books and records, its accounts receivable and inventory, its facilities and its other business assets, and to make photocopies or photographs thereof and to write down and record any information such representative obtains and shall permit the Administrative Agent or its representatives to investigate and verify the accuracy of information provided to the Administrative Agent or Lenders and to discuss all such matters with the officers, employees and representatives of such members of the Borrower Group, provided that the foregoing rights shall be subject to the confidentiality provisions set forth in Section 9.24.

B. Lenders Meeting. The Borrower shall, upon the request of the Administrative Agent or the Required Lenders from time to time, participate in meetings of the Administrative Agent and the Lenders to be held at the Borrower’s corporate offices (or at such other location as may be agreed to by the Borrower and the Administrative Agent) at such times as may be reasonably agreed to by the Borrower and the Administrative Agent.

Section 5.8. Compliance with Laws; Governmental Actions and Rights of Way.

A. Legal Requirements. The Borrower shall, and shall cause each member of the Borrower Group to, comply in all material respects with all applicable Legal Requirements (including all Environmental Laws, United States export laws and regulations, and the Foreign Corrupt Practices Act of the United States, if applicable) except, in each case, where the failure to comply with such Legal Requirement would not have a Material Adverse Effect.

B. Governmental Actions; Rights of Way. The Borrower shall, and shall cause each member of the Borrower Group to, from time to time (i) file for and obtain all Governmental Actions and private party rights of way, franchises, licenses, consents and approvals as shall now or hereafter be necessary in the conduct of the business of the Borrower Group or the execution, validity, legality or enforceability of the Loan Documents, and (ii) maintain, retain, observe, keep in full force and effect and comply in all material respects with the terms, conditions and provisions of all Governmental Actions as shall now or hereafter be necessary under applicable laws except, in each case, where the failure to comply with the foregoing would not have a Material Adverse Effect.

Section 5.9. Environmental Matters.

A. Environmental Review and Investigation. The Borrower agrees that the Administrative Agent may, following the occurrence of any event or the discovery of any condition that the Administrative Agent or the Required Lenders reasonably believes has caused (or could reasonably be expected to cause) the representations and warranties set forth in Section 4.14 to be untrue in any respect that may result in a Material Adverse Effect:

(i) review, any environmental audits, investigations, analyses and reports (“Environmental Reports”) relating to Hazardous Materials in respect of any site or operation prepared by or for the Borrower by an independent professional consultant retained at the Borrower’s expense, and

(ii) if reasonably determined to be necessary following review of any Environmental Reports provided by the Borrower, conduct its own investigation of any site or operation and as to the compliance by any member of the Borrower Group with the representations and warranties set forth in Section 4.14.

For purposes of conducting such a review and/or investigation, the Borrower hereby grants to the Administrative Agent and its agents, employees, consultants and contractors the right (subject to the approval of any other Person from whom the Borrower Group is legally obligated to obtain permission or consent prior to granting access at such sites or operations) to enter into or onto any portion of any site or operation then owned, leased, operated or used by any member of the Borrower Group and to perform such tests on such property (including taking samples of soil, groundwater and suspected asbestos-containing materials) as are reasonably necessary in connection therewith. Any such investigation of any portion of any site or operation shall be conducted, unless otherwise agreed to by the Borrower and the Administrative Agent, during normal business hours and, to the extent reasonably practicable, shall be conducted so as not to interfere with the ongoing operations at such portion of any site or operation and all reasonable efforts shall be used not to cause any damage or loss to any property at such portion of the applicable site or operation. The Borrower and the Administrative Agent hereby acknowledge and agree that any report of any investigation conducted at the request of the Administrative Agent pursuant to this Section 5.9 will be obtained and shall be used by the Administrative Agent and the Lenders for the purposes of the Lenders’ internal credit decisions, to monitor the Loans and to protect the Lenders’ security interests created by the Collateral Documents. The Administrative Agent agrees to deliver a copy of any such report to the Borrower with the understanding that the Borrower acknowledges and agrees that (x) the Borrower will indemnify

and hold harmless the Administrative Agent and each Lender from any costs, losses or liabilities relating to the Borrower’s use of or reliance on such report, (y) neither the Administrative Agent nor any Lender makes any representation or warranty with respect to such report, and (z) by delivering such report to the Borrower, neither the Administrative Agent nor any Lender is requiring or recommending the implementation of any suggestions or recommendations contained in such report.

B. Environmental Disclosure. The Borrower shall deliver to the Administrative Agent and the Lenders:

(i) Environmental Audits and Reports. As soon as practicable following receipt thereof, final copies (or the latest draft thereof if no final version is being prepared) of all environmental audits, investigations, analyses and reports of any kind or character, whether prepared by personnel of any member of the Borrower Group or by independent consultants, governmental authorities or any other Persons, with respect to significant environmental matters at any portion of any site or operation or with respect to any Environmental Claims;

(ii) Notice of Certain Releases, Remedial Actions, Etc. Promptly upon the discovery thereof by any member of the Borrower Group, written notice describing in reasonable detail (a) any Release relating to or affecting the sites or operations of any member of the Borrower Group required to be reported to any federal, state or local governmental or regulatory agency under any applicable Environmental Laws, (b) any remedial action taken by the Borrower or any other Person in response to (1) any Hazardous Materials Activities relating to or affecting the sites or operations of any member of the Borrower Group the existence of which has a reasonable possibility of resulting in one or more Environmental Claims having, individually or in the aggregate, a Material Adverse Effect, or (2) any Environmental Claims relating to or affecting the sites or operations of any member of the Borrower Group that, individually or in the aggregate, have a reasonable possibility of resulting in a Material Adverse Effect;

(iii) Written Communications Regarding Environmental Claims, Releases, Etc. As soon as practicable following the sending or receipt thereof by any member of the Borrower Group, a copy of any and all written communications with respect to (a) any Environmental Claims relating to or affecting the sites or operations of any member of the Borrower Group that, individually or in the aggregate, have a reasonable possibility of giving rise to a Material Adverse Effect, (b) any Release relating to or affecting the sites or operations of any member of the Borrower Group required to be reported to any federal, state or local governmental or regulatory agency, and (c) any request for information from any governmental agency that suggests such agency is investigating whether any member of the Borrower Group may be potentially responsible for any Hazardous Materials Activity;

(iv) Notice of Certain Proposed Actions Having Environmental Impact. Prompt written notice describing in reasonable detail (a) any proposed acquisition of Securities, assets, or property by any member of the Borrower Group that could reasonably be expected to (1) expose any member of the Borrower Group to, or result in,

Environmental Claims that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or (2) affect the ability of any member of the Borrower Group to maintain in full force and effect all material Governmental Actions required under any Environmental Laws for their respective operations and (b) any proposed action to be taken by any member of the Borrower Group to modify current operations in a manner that could reasonably be expected to subject any member of the Borrower Group to any material additional obligations or requirements under any Environmental Laws that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Written notice received 30 days prior to any such event shall be presumed to be prompt for purposes of this Section 5.9.B, provided, however, that such presumption shall not constitute a waiver of Borrower’s obligation to give notice at an earlier date where necessary to afford the Administrative Agent and the Lenders a reasonable opportunity to evaluate the proposed action and to take adequate measures to protect the Lenders’ security interests created by the Collateral Documents; and

(v) Other Information. With reasonable promptness, such other documents and information as from time to time may be reasonably requested by the Administrative Agent in relation to any matters disclosed pursuant to this Section 5.9.

C. The Borrower’s Actions Regarding Hazardous Materials Activities, Environmental Claims and Violations of Environmental Laws.

(i) Remedial Actions Relating to Hazardous Materials Activities. The Borrower shall, and shall cause each member of the Borrower Group to, promptly undertake, any and all investigations, studies, sampling, testing, abatement, clean-up, removal, remediation or other response actions necessary to remove, remediate, clean up or ▇▇▇▇▇ any Hazardous Materials Activity on, under or about any portion of any site or property of any member of the Borrower Group that is in violation of any Environmental Laws or that presents a material risk of giving rise to an Environmental Claim except when, and only to the extent that, the liability of such member of the Borrower Group with respect to such Hazardous Materials Activity, violation of Environmental Law or Environmental Claim is being contested in good faith by such member of the Borrower Group. In the event and to the extent that any member of the Borrower Group undertakes any such action with respect to any Hazardous Materials, such member of the Borrower Group shall conduct and complete such action in compliance with all applicable Environmental Laws and in accordance with the orders and legally enforceable directives of all federal, state and local governmental authorities.

(ii) Actions with Respect to Environmental Claims and Violations of Environmental Laws. The Borrower shall, and shall cause each member of the Borrower Group to, promptly take any and all actions necessary to (i) cure any material violation of applicable Environmental Laws caused by any member of the Borrower Group and (ii) make an appropriate response to any Environmental Claim against any member of the Borrower Group and, unless the liability of such member of the Borrower Group as alleged in the Environmental Claim is being contested in good faith, discharge any obligations it may have to any Person thereunder.

Section 5.10. Payment of Liens.

A. Removal by the Borrower. In the event that, notwithstanding the covenants contained in Section 6.2, a Lien not otherwise permitted under Section 6.2 may encumber the Collateral or any portion thereof, the Borrower shall promptly discharge or cause to be discharged by payment to the lien holder or lien claimant or promptly secure removal by bonding or deposit with the county clerk or otherwise; provided that, compliance with the provisions of this Section 5.10 shall not be deemed to constitute a waiver of the provisions of Section 6.2. The Borrower shall exhibit to the Administrative Agent upon request all receipts or other satisfactory evidence of payment, bonding, deposit of taxes, assessments, Liens or any other item which may cause any such Lien to be filed against the Collateral or any portion thereof of the Borrower Group. The Borrower shall, and shall cause each member of the Borrower Group to, fully preserve the Lien and the priority of each of the Collateral Documents without cost or expense to the Administrative Agent or the Lenders.

B. Removal by the Agent. If any member of the Borrower Group fails to promptly discharge, remove or bond off any such Lien or mechanics’ or materialmen’s claim of lien as described above, which is not being contested by any member of the Borrower Group in good faith by appropriate proceedings promptly instituted and diligently conducted, within 30 days after the receipt by such member of the Borrower Group of notice thereof, then the Administrative Agent may, but shall not be required to, procure the release and discharge of such Lien, mechanics’ or materialmen’s claim of lien and any judgment or decree thereon, and in furtherance thereof may, in its sole discretion, effect any settlement or compromise with the lien holder or lien claimant or post any bond or furnish any security or indemnity as the Administrative Agent, in its sole discretion, may elect. In settling, compromising or arranging for the discharge of any Liens under this subsection, the Administrative Agent shall not be required to establish or confirm the validity or amount of the Lien. The Borrower agrees that all costs and expenses expended or otherwise incurred pursuant to this Section 5.10 (including reasonable attorneys’ fees and disbursements) by the Administrative Agent shall be paid by the Borrower in accordance with the terms hereof.

Section 5.11. Additional Actions Related to Collateral.

A. Accounts. If any member of the Borrower Group (other than a Canadian Subsidiary) is holder of, opens, creates or acquires an Account or a deposit account, or any Canadian Subsidiary is holder of, opens, creates or acquires an Account or a deposit account maintained in the United States, then the Borrower shall, and shall cause each member of the Borrower Group that may have opened, created or acquired such Account or deposit account to, in each case, at the Borrower’s expense:

(i) within ten Business Days of the date of the opening, creation or acquisition of any Account, duly execute and deliver to the Administrative Agent, each Security Agreement or Control Agreement (or amendment thereto) and take such other actions which, in each case, are necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent on behalf of the Secured Parties a First Priority Lien on such Account; and

(ii) within ten Business Days of the date of the opening, creation or acquisition of any deposit account, duly execute and deliver to the Administrative Agent a Blocked Account Agreement with respect to such deposit account and take such other actions which, in each case, are necessary or advisable in the reasonable opinion of the Administrative Agent with respect thereto, and neither Borrower nor any other member of the Borrower Group (other than a Canadian Subsidiary, unless such Canadian Subsidiary is the holder, opens, creates or acquires an Account or a deposit account maintained in the United States) may maintain any deposit account except a Blocked Account, except that the any member of the Borrower Group may maintain at any one time up to $4,000,000 (or such greater amount as may be consented to in writing by the Administrative Agent from time to time) in the aggregate (i.e. for the Borrower Group (other than a Canadian Subsidiary, unless such Canadian Subsidiary is the holder, opens, creates or acquires an Account or a deposit account maintained in the United States) in the aggregate) in deposit accounts which are not Blocked Accounts and as to which no Blocked Account Agreement shall be required so long as the amounts in such deposit accounts never exceed such $4,000,000 (or such greater amount as may be consented to by the Administrative Agent) and the balance of such deposit accounts (a) does not exceed an average daily balance in any month in excess of $1,000,000 in any individual account and (b) does not exceed an average daily balance in any month in excess of $3,000,000 for all such accounts in the aggregate;

B. Acquisition and Creation of Equity Interests of Subsidiaries. The Borrower shall not, and shall not permit any member of the Borrower Group to, acquire, issue or create any Equity Interests in any Person that constitutes a Restricted Subsidiary unless:

(i) the creation or acquisition of such new Subsidiary could not reasonably be expected to have a Material Adverse Effect;

(ii) such new Restricted Subsidiary (other than the Canadian Subsidiaries) shall be or become a party to a Guaranty Agreement;

(iii) the applicable member of the Borrower Group (other than a Canadian Subsidiary; but, in the case of the Equity Interests in a Canadian Subsidiary, any other entity organized in the United States which owns any Equity Interests in such Canadian Subsidiary) shall pledge, have pledged or cause or have caused to be pledged to the Administrative Agent (A) all of the outstanding shares of Equity Interests or other Equity Interests of such new Restricted Subsidiary owned directly or indirectly by it (or, the case of the Equity Interests of a Canadian Subsidiary of which any Equity Interests are owned by an entity organized in the United States, sixty-five percent (65%) of the Equity Interests of the Canadian Subsidiary), or (B) to the extent that the Administrative Agent, acting on behalf of the Secured Parties does not already have a First Priority Lien thereon, such newly issued Equity Interests of such Restricted Subsidiary, in each case, along with undated stock powers for such certificates, executed in blank (or, if any such shares of Equity Interests are uncertificated, confirmation and evidence satisfactory to the Administrative Agent that the security interest in such uncertificated securities has been perfected by the Administrative Agent in accordance with Article 8 of the UCC or any similar law which may be applicable); in order to effect the foregoing, the Borrower (or

any member of the Borrower Group (other than a Canadian Subsidiary; but, in the case of the Equity Interests in a Canadian Subsidiary, any other entity organized in the United States which owns any Equity Interests in such Canadian Subsidiary) which is the direct owner of such new Restricted Subsidiary) shall either enter into a Pledge Agreement or, if it has already entered into such a Pledge Agreement, amend such pledge agreement in order to identify the Equity Interests and other related collateral in respect of such new Restricted Subsidiary or newly issued Equity Interests, and, in the case of a Restricted Subsidiary incorporated or otherwise existing pursuant to the laws of any jurisdiction other than the United States or any political subdivision thereof, shall enter into a pledge agreement in form and substance reasonably satisfactory to the Administrative Agent;

(iv) the Borrower shall, and shall cause the new Restricted Subsidiary (other than the Canadian Subsidiaries) to, take such other actions (including entering into a Security Agreement, Pledge Agreement, Control Agreement or Blocked Account Agreement) as are necessary or advisable in the reasonable opinion of the Administrative Agent in order to grant to the Administrative Agent, acting on behalf of the Secured Parties, a First Priority Lien on all Equity Interests in such Subsidiary and all Property of such Subsidiary in existence as of such date and in all after acquired Property of such Subsidiary in which First Priority Liens are required to be granted pursuant to this Agreement;

(v) (A) with respect to any Restricted Subsidiary holding assets having an aggregate net fair market value in excess of $1,000,000, then concurrently with the execution and delivery of each Guaranty Agreement, Security Agreement, Control Agreement, Pledge Agreement or other document referred to above, or (B) upon such Restricted Subsidiary’s acquisition of assets having an aggregate fair market value of at least $1,000,000, the Administrative Agent shall have received such favorable opinions of legal counsel for the applicable member of the Borrower Group relating to each of the matters identified in clauses (ii), (iii), and (iv) above, in form and substance reasonably satisfactory to the Administrative Agent; and

(vi) the Administrative Agent shall have received (a) certified copies of such new Restricted Subsidiary’s certificate or articles of incorporation, together with a good standing certificate from the Secretary of State of the jurisdiction of its incorporation and each other state in which such Person is qualified as a foreign corporation to do business, each to be dated a recent date prior to their delivery to the Administrative Agent, (b) a copy of such new Restricted Subsidiary’s by-laws (or other operating agreement or governing document), certified by its corporate secretary or an assistant secretary as of a recent date prior to their delivery to the Administrative Agent and, (c) a certificate executed by the secretary or an assistant secretary of such new Restricted Subsidiary certifying as to (1) the fact that the attached resolutions of the Board of Directors or other governing body of such new Restricted Subsidiary approving and authorizing the execution, delivery and performance of any Loan Documents to which it is a party are in full force and effect and have not been modified or amended and (2) the incumbency and signatures of the officers of such new Restricted Subsidiary executing any Loan Documents.

Section 5.12. Further Assurances.

A. Assurances. Without expense or cost to the Administrative Agent or the Lenders, the Borrower shall, and shall cause each member of the Borrower Group to, from time to time hereafter, execute, acknowledge, file, record, do and deliver all and any further acts, deeds, conveyances, mortgages, deeds of trust, deeds to secure debt, security agreements, hypothecations, pledges, charges, assignments, financing statements and continuations thereof, notices of assignment, transfers, certificates, assurances and other instruments as the Administrative Agent may from time to time reasonably require in order to carry out more effectively the purposes of this Agreement or the other Loan Documents, including to subject any items of Collateral, intended to now or hereafter be covered, to the Liens created by the Collateral Documents, to perfect and maintain such Liens, and to assure, convey, assign, transfer and confirm unto the Administrative Agent the property and rights hereby conveyed and assigned or intended to now or hereafter be conveyed or assigned or which any member of the Borrower Group may be or may hereafter become bound to convey or to assign to the Administrative Agent or for carrying out the intention of or facilitating the performance of the terms of this Agreement or any other Loan Document or for filing, registering or recording this Agreement or any other Loan Document. Promptly upon a reasonable request, the Borrower shall, and shall cause each member of the Borrower Group (other than the Canadian Subsidiaries, except in respect of (i) the Equity Interests in a Canadian Subsidiary owned by any member of the Borrower Group which is organized in the United States and (ii) Accounts and deposit accounts subject to Section 5.11 hereof) to, execute and deliver, and hereby authorizes the Administrative Agent to execute and file in the name of such member of the Borrower Group, to the extent the Administrative Agent may lawfully do so, one or more financing statements, chattel mortgages or comparable security instruments to evidence more effectively the Liens of the Collateral Documents upon the Collateral.

B. Filing and Recording Obligations. The Borrower shall pay or cause to be paid all filing, registration and recording fees and all expenses incident to the execution and acknowledgment of a deed of trust, leasehold of deed of trust, mortgage, leasehold mortgage, or any other Loan Document, including any instrument of further assurance described in Section 5.12.A, and shall pay or cause to be paid all mortgage recording taxes, transfer taxes, general intangibles taxes and governmental stamp and other taxes, duties, imposts, assessments and charges arising out of or in connection with the execution, delivery, filing, recording or registration of any Collateral Document or any other Loan Document, including any instrument of further assurance described in Section 5.12.A, or by reason of its interest in, or measured by amounts payable under, the Notes, any Collateral Document or any other Loan Document, including any instrument of further assurance described in Section 5.12.A, and shall pay all stamp taxes and other taxes required to be paid on the Notes or any other Loan Document, but excluding in the case of each Lender and the Administrative Agent, Taxes imposed on its income by a jurisdiction under the laws of which it is organized or in which its principal executive office is located or in which its applicable lending office for funding or booking its Loans hereunder is located. If the Borrower fails to make or cause to be made any of the payments described in the preceding sentence within 15 days after notice thereof from the Administrative Agent (or such shorter period as is necessary to protect the loss of or diminution in value of any Collateral by reason of tax foreclosure or otherwise, as determined by the Administrative Agent in its sole discretion) accompanied by documentation verifying the nature and amount of such payments,

the Administrative Agent may (but shall not be obligated to) pay the amount due and the Borrower shall reimburse all amounts in accordance with the terms hereof.

C. Costs of Defending and Upholding the Lien. The Administrative Agent may, upon at least five days’ prior notice to the Borrower, (i) appear in and defend any action or proceeding, in the name and on behalf of the Administrative Agent or the Lenders, in which the Administrative Agent or any Lender is named or which the Administrative Agent in its sole discretion determines is reasonably likely to materially adversely affect the Collateral, any Collateral Document, the Lien thereof or any other Loan Document and (ii) institute any action or proceeding which the Administrative Agent reasonably determines should be instituted to protect the interest or rights of the Administrative Agent and the Lenders in the Collateral or under this Agreement, the Collateral Documents or any other Loan Document. The Borrower agrees that all reasonable costs and expenses expended or otherwise incurred pursuant to this subsection (including reasonable attorneys’ fees and disbursements) by the Administrative Agent shall be paid by the Borrower or reimbursed by the Borrower to the Administrative Agent promptly after demand.

D. Costs of Enforcement. The Borrower agrees to bear and shall pay or reimburse the Secured Parties in accordance with the terms of Section 9.2 for all reasonable sums, costs and expenses incurred by the Secured Parties (including reasonable attorneys’ fees and the expenses and fees of any receiver or similar official) of or incidental to the collection of any of the Obligations, any foreclosure (or transfer in lieu of foreclosure) of this Agreement, any Collateral Document or any other Loan Document or any sale of all or any portion of the Collateral.

Section 5.13. Use of Proceeds.

A. The proceeds of the Loans hereunder shall be used solely as follows: (1) the Revolving Loans shall be used for working capital and other general corporate purposes, including Transaction Costs; and (2) the Term Loans shall be used (x) to fund a dividend on the Closing Date to Parent to pay the Redemption and the Series C Preferred Share Payments on the Effective Date for to the extent that such Redemption and Series C Preferred Share Payments have not been paid from the proceeds of the Second Lien Credit Agreement, (y) to refinance the outstanding indebtedness owed by the Borrower under the Original Credit Agreement, and (z) for working capital and other general corporate purposes, including Transaction Costs (each of the foregoing, as applicable to its Class of Loans, individually, a “Permitted Purpose” and, collectively, the “Permitted Purposes”). The Borrower may, subject to Section 6.1, use the proceeds of the Loans to make loans or capital contributions to other members of the Borrower Group (other than Parent); provided that the Borrower shall cause each member of the Borrower Group to, use such proceeds for a Permitted Purpose.

B. The Letters of Credit shall be used only in connection with a Permitted Purpose, as defined in relation to Revolving Loans.

Section 5.14. Intellectual Property.

The Borrower shall not, and shall not permit any member of the Borrower Group to, do any act, or omit to do any act, whereby any of its Intellectual Property may lapse or become

abandoned or dedicated to the public or unenforceable, unless such lapse, abandonment, dedication or unenforceability could not reasonably be expected to have a Material Adverse Effect. The Borrower shall take, and shall cause each member of the Borrower Group to, take all reasonably necessary steps to maintain and pursue any application (and to obtain the relevant registration) filed with respect to, and to maintain any registration of, any material part of its Intellectual Property, except where the failure to so maintain, obtain or pursue could not reasonably be expected to have a Material Adverse Effect.

Section 5.15. Interest Rate Protection.

On or before November 30, 2005, the Borrower shall maintain in effect for a period of not less than three years, one or more Interest Rate Agreements with respect to the Term Loans, each such Interest Rate Agreement to be for a term and in form and substance reasonably satisfactory to the Administrative Agent, which Interest Rate Agreements shall effectively limit the Unadjusted Eurodollar Rate Component (as hereinafter defined) of the interest costs to the Borrower with respect to an aggregate notional principal amount of not less than 50% of the aggregate principal amount of the Term Loans outstanding from time to time (based on the assumption that such notional principal amount was a Eurodollar Rate Loan with an Interest Period of three months). For purposes of this Section 5.15, the term “Unadjusted Eurodollar Rate Component” means that component of the interest costs to the Borrower in respect of a Eurodollar Rate Loan that is based upon the rate obtained pursuant to clause (a) of the definition of Adjusted Eurodollar Rate.

Section 5.16. Landlord Consents And Estoppel Agreements.

The Borrower shall, and shall cause each member of the Borrower Group to, (a) use reasonable efforts to obtain from the relevant lessors with respect to each Colocation Lease entered into after the Effective Date Landlord Consent and Estoppel Agreements in favor of the Administrative Agent, and (b) report to the Administrative Agent in writing within sixty days after entering into each Colocation Lease after the Closing Date as to the status of such efforts with respect to each Colocation Lease. The Borrower shall deliver or cause to be delivered to the Administrative Agent, promptly upon their execution, all such Landlord Consent and Estoppel Agreements.

Section 5.17. Unrestricted Subsidiaries and Restricted Subsidiaries.

A. Except for the Unrestricted Subsidiaries listed as such on Schedule 4.1.C as of the Closing Date, the Borrower shall not have the right to designate any Subsidiary as an Unrestricted Subsidiary and all Subsidiaries shall be Restricted Subsidiaries. The Borrower shall cause each Unrestricted Subsidiary to comply with the following:

(i) such Subsidiary shall not own, directly or indirectly, Equity Interests in any Restricted Subsidiary which, when added to any other Equity Interests which are owned in such Restricted Subsidiary by any other Unrestricted Subsidiaries, totals 50% or more of the Equity Interests of such Restricted Subsidiary;

(ii) such Subsidiary shall have no Indebtedness other than Non-Recourse Indebtedness or unsecured intercompany Indebtedness in an amount not to exceed

$1,000,000 in the aggregate for all such Non-Recourse Indebtedness and unsecured intercompany Indebtedness taken together;

(iii) such Subsidiary shall not be a party to any agreement, contract, arrangement or understanding with any member of the Borrower Group other than any such agreement, contract, arrangement or understanding the terms of which are no less favorable to such member of the Borrower Group than the terms that such member could obtain at the time from Persons who are not Affiliates of a member of the Borrower Group;

(iv) such Subsidiary shall be a Person with respect to which no member of the Borrower Group has any direct or indirect obligation (a) to subscribe for additional Equity Interests (unless the amount of such subscription could be made as a Restricted Payment) or (b) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results;

(v) such Subsidiary shall not guarantee or otherwise directly or indirectly provide credit support for any Indebtedness of any member of the Borrower Group; and

(vi) such Subsidiary shall not construct or operate any Colocation Facility and shall not enter into any Colocation Lease.

Section 5.18. Redemption and Series C Share Payments.

Immediately upon the making of the payments in respect of the Redemption and the Series C Share Payments pursuant to the terms and conditions hereof, the Borrower shall deliver to the Administrative Agent evidence (in form, substance and scope satisfactory to the Administrative Agent) that proceeds of the Term Loans in an amount not to exceed $17,000,000 in the aggregate were used to fund a dividend to the Parent for such Redemption and Series C Share Payments and that the Parent made such Redemption and Series C Share Payments as provided herein. In addition to, and not in lieu of, the foregoing, the Borrower shall permit, and shall cause Parent to permit, at the Borrower’s expense, Administrative Agent and/or any representative or designee of the Administrative Agent to visit and inspect the books and records of Parent, Borrower or any member of the Borrower Group, to investigate and verify the accuracy of the information provided to the Administrative Agent in respect of the payments made for the Redemption and the Series C Preferred Share Payments and to take all such other actions set forth in Section 5.7 hereof in connection therewith.

ARTICLE VI.

BORROWER’S NEGATIVE COVENANTS

The Borrower covenants and agrees that, so long as any of the Commitments hereunder shall remain in effect and until payment and performance in full of all of the Loans and other Obligations, the Borrower shall, and shall cause each member of the Borrower Group (including without limitation, pursuant to the definition of Borrower Group, the Canadian Subsidiaries), to perform all of the covenants set forth in this Article VI.

Section 6.1. Indebtedness.

The Borrower shall not, and shall not permit any member of the Borrower Group 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) the Obligations;

(ii) any Indebtedness set forth in Schedule 6.1 (and renewals, refinancings and extensions thereof on terms and conditions no less favorable to the members of the Borrower Group, in a principal amount not in excess of the principal balance outstanding thereon at the time of such renewal, refinancing or extension and with a maturity date and weighted average life no greater than the Indebtedness being refinanced);

(iii) trade or other similar Indebtedness incurred in the ordinary course of business and payable within sixty days;

(iv) purchase money Indebtedness (including obligations in respect of Capital Leases and vendor financing) hereafter incurred by any member of the Borrower Group to finance the purchase of fixed assets not owned as of the date hereof, provided, that (a) the aggregate amount of such Indebtedness shall not exceed an aggregate principal amount of $5,000,000 at any one time outstanding, (b) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed and (c) any Lien securing such Indebtedness shall attach to the acquired assets within 90 days after the acquisition thereof;

(v) renewals, refinancings and extensions of any Indebtedness permitted pursuant to clause (iv) above on terms and conditions no less favorable to such member of the Borrower Group and in a principal amount not in excess of the principal balance outstanding thereon at the time of such renewal, refinancing or extension;

(vi) Indebtedness under, or constituting net exposure under, Interest Rate Agreements entered into in accordance with Section 5.15 hereof and/or entered into in accordance with Section 5.15 of the Second Lien Credit Agreement; and

(vii) other Indebtedness, provided that the Indebtedness under this clause (vii) shall not exceed $3,000,000 in the aggregate; and

(viii) intercompany Indebtedness between any members of the Borrower Group other than the Canadian Subsidiaries, so long as such Indebtedness is expressly subordinated in all respects to the Obligations; and

(ix) the Indebtedness evidenced by the 2005 Canadian Investment Note and the 2004 Canadian Investment Note, provided that the 2005 Canadian Investment Note shall provide that (x) the 2005 Canadian Investment Note shall be amortized on the same dates and the same percentages that Term Loan B amortizes hereunder and shall be due and payable in full no later than the Term Loan B Maturity Date, and (y) among other events of default thereunder, it shall be an event of default thereunder if any Event of

Default occurs under this Agreement; and provided, further, that the 2004 Canadian Investment Note shall provide that (x) the 2004 Canadian Investment Note shall be amortized on the same dates and the same percentages as provided therein on the Effective Date and shall be due and payable in full no later than August 4, 2008, and (y) among other events of default thereunder, it shall be an event of default thereunder if any Event of Default occurs under this Agreement; and

(x) intercompany Indebtedness between any member of the Borrower Group and the Canadian Subsidiaries, not to exceed $2,750,000 in the aggregate (not including the 2005 Canadian Investment Note and the 2004 Canadian Investment), provided that (1) no intercompany Indebtedness may be advanced (and no advance of any revolving loan facility pursuant to which all or a portion of such $2,750,000 may be advanced) to a Canadian Subsidiary at any time that an event of default has occurred and is continuing under either the 2005 Canadian Investment Note or the 2004 Canadian Investment Note or an Event of Default has occurred and is continuing, (2) the intercompany Indebtedness referred to in this clause (x) shall only be permitted by this clause (x) if it is evidenced by a promissory note in form and substance acceptable to the Administrative Agent (as amended from time to time with the written consent of the Administrative Agent, the “Canadian Revolving Note”), and such Canadian Revolving Note is pledged and delivered to the Administrative Agent on or before the date that any such Indebtedness is incurred, pursuant to a pledge agreement in form and substance satisfactory to the Administrative Agent, as additional Collateral for the Obligations, and (z) such Canadian Revolving Note provides that such intercompany Indebtedness shall be due and payable in full no later than the Revolving Loan Maturity Date and that, among other events of default thereunder, it shall be an event of default thereunder if any Event of Default occurs under this Agreement; and

(xi) Indebtedness incurred pursuant to the Second Lien Credit Agreement and the other “Loan Documents” (as defined in the Second Lien Credit Agreement”) in an amount not to exceed $45,000,000 (plus any accrued interest, fees and expenses in connection therewith), the proceeds of which shall be utilized to refinance the Original Credit Agreement, to pay for the Redemption and Series C Preferred Share Payments as provided therein and to pay any “Transaction Costs” (as defined in the Second Lien Credit Agreement) incurred pursuant to the terms and conditions thereof.

Section 6.2. Liens and Related Matters.

A. Prohibition on Liens. The Borrower shall not, and shall not permit any member of the Borrower Group 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 any member of the Borrower Group, whether now owned or hereafter acquired, or any income or profits therefrom, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any Lien with respect to any such property, asset, income or profits under the UCC of any State or under any similar recording or notice statute, except Permitted Liens, provided that, with respect to Liens upon the assets of the Canadian Subsidiaries, the Permitted Liens shall not include the Liens described in clauses (xiii) and (xiv) of the definition of Permitted Liens.

B. No Further Negative Pledges. The Borrower shall not, and shall not permit any member of the Borrower Group to, enter into, assume or become subject to any agreement prohibiting or otherwise restricting the creation or assumption of any Lien upon its properties or assets for the purpose of securing the Obligations, whether now owned or hereafter acquired, or requiring the grant of any security for obligations relating to such agreement if security is given for the Obligations, except (i) pursuant to this Agreement and the other Loan Documents, (ii) pursuant to customary restrictions and conditions contained in any agreement relating to the sale of any Property permitted under Section 6.7, pending the consummation of such sale, and (iii) any provision in any agreement or instrument governing Indebtedness permitted pursuant to Section 6.1(iv) or Section 6.1(v) that prohibits or otherwise restricts the creation or assumption of any Lien upon any asset acquired or maintained utilizing the proceeds of such Indebtedness.

Section 6.3. Change of Filing Location.

The Borrower shall not, and shall not permit any member of the Borrower Group to, reorganize any member of the Borrower Group under the laws of a different jurisdiction unless the Borrower shall have given the Administrative Agent at least 20 days’ prior written notice thereof and all action reasonably requested by the Administrative Agent to protect and perfect the Liens and security interests in the Collateral shall have been taken.

Section 6.4. Change of Name.

The Borrower shall not, and shall not permit any member of the Borrower Group to, change its name or organizational structure or jurisdiction in which it is organized unless the Borrower shall have given the Administrative Agent at least 20 days’ prior written notice thereof and all action reasonably requested by the Administrative Agent to protect and perfect the Liens and security interests in the Collateral shall have been taken.

Section 6.5. Investments; Joint Ventures.

The Borrower shall not, and shall not permit any member of the Borrower Group to, directly or indirectly, make or own any Investment in any Person, including any Joint Venture, or otherwise form or create any Subsidiary (other than in accordance with Section 5.11.B), except for Permitted Investments.

Section 6.6. Financial Covenants.

A. Consolidated Leverage Ratio. As of the end of each Fiscal Quarter ending on or after the Closing Date, the Consolidated Leverage Ratio shall not exceed the corresponding ratio set forth in Section A of Schedule 6.6 for such Fiscal Quarter.

B. First Lien Consolidated Leverage Ratio. As of the end of each Fiscal Quarter ending on or after the Closing Date, the First Lien Consolidated Leverage Ratio shall not exceed the corresponding ratio set forth in Section B of Schedule 6.6 for such Fiscal Quarter.

C. Consolidated Interest Coverage Ratio. As of the end of each Fiscal Quarter ending on or after the Closing Date, Consolidated Interest Coverage Ratio shall not be less than the corresponding ratio set forth in Section C of Schedule 6.6 for such Fiscal Quarter.

D. Consolidated Fixed Charge Coverage Ratio. As of the end of each Fiscal Quarter ending on or after the Closing Date, the Consolidated Fixed Charge Coverage Ratio shall not be less than the corresponding ratio set forth in Section D of Schedule 6.6 for such Fiscal Quarter.

Section 6.7. Restriction on Fundamental Changes; Asset Sales and Acquisitions.

The Borrower shall not, and shall not permit any member of the Borrower Group to, 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 acquire by purchase or otherwise all or substantially all of the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person (including any issuance or sale by any member of the Borrower Group of Equity Interests in any of their respective Restricted Subsidiaries), except:

(i) the members of the Borrower Group may Dispose of obsolete, worn out or surplus assets or assets no longer used or useful in the business of the Borrower Group to the extent made in the ordinary course of business, provided that either (a) such Disposal does not materially adversely affect any portion of such Person’s business, or (b) prior to or within twelve months following such Disposal, any such property shall be replaced with other property of substantially equal utility and a value at least substantially equal to that of the replaced property when first acquired and free from any security of any other Person, subject only to Permitted Liens, and by such removal and replacement the members of the Borrower Group shall be deemed to have subjected such replacement property to the lien of the Collateral Documents in favor of the Secured Parties, as applicable, provided that the aggregate amount of proceeds that may be used to replace assets Disposed of pursuant to this clause (b) shall not exceed $2,000,000 in the aggregate for all such assets acquired after the Closing Date;

(ii) the members of the Borrower Group may sell or otherwise Dispose of assets in transactions that do not constitute Asset Sales, provided that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; and provided, further, that the members of the Borrower Group may not lease or sublease to other Persons any portion of the interest of the applicable member of the Borrower Group in any of its Colocation Facilities, unless each such lease or sublease (a) is made in the ordinary course of business and is in connection with the provision of co-location services by any member of the Borrower Group and (b) does not interfere in any material respect with the ordinary conduct of the business of any member of the Borrower Group;

(iii) Dispositions pursuant to a Capital Lease permitted by Section 6.1 and Section 6.2;

(iv) in a transaction authorized by Section 6.18;

(v) any Permitted Investments, so long as (x) any acquisition of all or substantially all of the business, property or fixed assets of, or stock or other evidence of

beneficial ownership of, any Person or any division or line of business of any Person is evidenced by an acquisition agreement in form and substance acceptable to the Required Lenders, and (y) the rights (but not the obligations) of the acquiring entity are collaterally assigned to the Administrative Agent as additional Collateral for the Obligations, pursuant to an assignment agreement in form and substance acceptable to the Administrative Agent; and

(vi) any Excluded Asset Sale; and

(vii) any Dispositions of assets of the Borrower Group occurring as a result of the closure of (x) any of those facilities that are identified in Schedule 1.1.A as closing or any facility the lease for which is the subject of any litigation referred to on Schedule 4.7 or (y) any other Colocation Facilities which have negative cash flow, so long as the amount of the assets that are Disposed of pursuant to this clause (y) does not exceed $1,000,000 (based on the greater of the fair market value of such assets at the time of such Disposition or the net proceeds from each such Disposition of such assets) after the Closing Date as a result of the closure of any individual facility and does not exceed $4,000,000 (based on the greater of the fair market value of such assets at the time of such Disposition or the net proceeds from each such Disposition of such assets) after the Closing Date as a result of the closure of all such facilities in the aggregate.

Notwithstanding the foregoing provisions of this Section 6.7, each of the clauses in this Section 6.7 shall be subject to the additional proviso that no Event of Default or Potential Event of Default shall exist and be continuing at the time of such transaction or would occur as a result of entering into such transaction (or immediately after any renewal or extension thereof at the option of any member of the Borrower Group). Further, the proceeds or the Net Asset Sale Proceeds of any lease or transaction of the nature described in each of the clauses to this Section 6.7 shall be applied in accordance with the provisions of Section 2.5.

Section 6.8. Sales and Lease-Backs.

The Borrower shall not, and shall not permit any member of the Borrower Group to, directly or indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any lease, whether an Operating Lease or a Capital Lease, of any property (whether real, personal or mixed), whether now owned or hereafter acquired, (i) which any member of the Borrower Group has sold or transferred or is to sell or transfer to any other Person or (ii) which any member of the Borrower Group intends to use for substantially the same purpose as any other property which has been or is to be sold or transferred by any member of the Borrower Group to any Person in connection with such lease.

Section 6.9. Sale or Discount of Receivables.

The Borrower shall not, and shall not permit any member of the Borrower Group to, directly or indirectly, sell with recourse, or discount or otherwise sell for less than the face value thereof, any of its notes or accounts receivable. For the avoidance of doubt, this paragraph is not intended to prevent the Borrower from taking action in good faith in the ordinary course of its business in respect of the collection of accounts receivable owed by account debtors, to the

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extent that the compromise or settlement of any such accounts receivable that are owed by (a) an account debtor that is a debtor in bankruptcy or insolvency proceedings, or (b) other account debtors as to which the Borrower has taken a specific reserve on its balance sheet in accordance with GAAP for the accounts of such accounts debtors and as to which Borrower believes in good faith that the financial condition of the account debtor is impaired to an extent that the Borrower should agree to the recovery of the compromised or settlement amount (or the sale or discount thereof for such amount), provided that the amount of discounts agreed to under this clause (b) with respect to any account debtor shall not exceed the amount of such reserves that were taken in accordance with GAAP with respect to the accounts of such account debtor.

Section 6.10. Transactions with Shareholders and Affiliates.

The Borrower shall not, and shall not permit any member of the Borrower Group to, directly or indirectly, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any holder of 5% or more of any class of equity Securities of any member of the Borrower Group or with any Affiliate thereof or of any such holder, except:

(i) transactions that are on terms that are not less favorable to such member of the Borrower Group, than those that might be obtained at the time from Persons who are not such a holder or Affiliate as long as (a) the Borrower has delivered to the Administrative Agent (1) with respect to any transaction involving an amount in excess of $1,000,000 an Officer’s Certificate certifying that such transaction complies with this Section 6.10 at the time such transaction is entered into, (2) with respect to any transaction involving an amount in excess of $2,000,000 a resolution adopted by a majority of the disinterested non-employee directors of the applicable member of the Borrower Group approving such transaction and an Officer’s Certificate certifying that such transaction complies with this Section 6.10 at the time such transaction is entered into and (b) with respect to any such transaction that involves aggregate payments in excess of $5,000,000, either (1) an opinion as to the fairness to the applicable member of the Borrower Group from a financial point of view issued by a qualified independent accounting or appraisal firm of nationally recognized standing at the time such transaction is entered into or (2) the receipt of the prior written consent of the Required Lenders;

(ii) any Material Contract that was in existence as of the Prior Amendment Date;

(iii) any employment, indemnification, noncompetition or confidentiality agreement entered into by any member of the Borrower Group with their employees or directors in the ordinary course of business, provided that no such agreement with a Person that is also (x) a shareholder or other equityholder of the Parent or (y) an employee, officer, director or manager of any such shareholder or other equityholder or any Affiliate thereof, other than an employee, officer, director or manager of one or more members of the Borrower Group, shall provide for the payment of compensation or other amounts in excess of the amounts payable to any such Person pursuant to agreements in

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effect on the Prior Amendment Date (without giving effect to any subsequent amendments thereof);

(iv) the payment of normal compensation, fees and reimbursement of expenses of officers and directors of the members of the Borrower Group who are not employees thereof, provided that no such agreement with a Person that is also (x) a shareholder or other equityholder of the Parent or (y) an employee, officer, director or manager of any such shareholder or other equityholder or any Affiliate thereof, other than an employee, officer, director or manager of one or more members of the Borrower Group, shall provide for the payment of compensation or other amounts in excess of the amounts payable to any such Person pursuant to agreements in effect on the Closing Date (without giving effect to any subsequent amendments thereof);

(v) transactions between or among the members of the Borrower Group and any of their respective direct or indirect Wholly-Owned Subsidiaries that are members of the Borrower Group; and

(vi) transactions set forth in the Material Contracts listed on Schedule 4.9.

Section 6.11. Certain Restrictions on Changes to Charter Documents.

The Borrower shall not, and shall not permit any member of the Borrower Group to, amend, supplement or otherwise modify, or permit the amendment, modification or supplementation of its certificate or articles of incorporation, certificate of formation or by-laws or other organizational documents (including any limited liability company agreement) in a manner which is inconsistent with or violates the terms of or could reasonably be expected to prevent compliance with any of the terms of any Loan Document or any Material Contract or could reasonably be expected to result in a Material Adverse Effect.

Section 6.12. Certain Restrictions in Respect of Material Contracts.

A. Termination, amendment or modification. The Borrower shall not, and shall not permit any member of the Borrower Group to, agree to any amendment, modification or termination of any Material Contract if such amendment, modification or termination could reasonably be expected to have a Material Adverse Effect, except (i) that amendments, modifications or terminations made in connection with the closure of those facilities that (x) are identified in Schedule 1.1.A as closing or (y) the lease for which is the subject of any litigation referred to on Schedule 4.7 shall not be deemed to be prohibited by this Section and (ii) the termination of the Material Contracts identified on Schedule 6.12. In addition, the Borrower shall not, and shall not permit any member of the Borrower Group to, assign or transfer any of its material rights or obligations under any of the Material Contracts, other than an assignment or transfer to another member (other than the Canadian Subsidiaries) of the Borrower Group.

B. Security Interest in Material Contracts. The Borrower shall not, and shall not permit any member of the Borrower Group to, enter into any Material Contract (other than the Security Agreements) if such agreement (i) prohibits the granting to the Administrative Agent or any Lender a lien thereon or (ii) otherwise unreasonably restricts or inhibits the Administrative Agent’s or any Lender’s ability to realize the benefit of any lien on any of the Collateral. The

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Borrower shall not, and shall not permit any member of the Borrower Group to, enter into contracts if such agreements (i) prohibit the granting to the Administrative Agent or any Lender a lien thereon or (ii) otherwise unreasonably restrict or inhibit the Administrative Agent’s or any Lender’s ability to realize the benefit of any lien on any of the Collateral which, taken as a whole, would have a Material Adverse Effect.

Section 6.13. Limitations on Restricted Actions.

Except as provided herein, the Borrower shall not, and shall not permit any member of the Borrower Group to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any of its Subsidiaries to (i) pay dividends or make any other distributions on any of such Subsidiary’s Equity Interests owned by any member of the Borrower Group, (ii) repay or prepay any Indebtedness owed by any member of the Borrower Group, (iii) make loans or advances to the Borrower, or (iv) transfer any of its property or assets to the Borrower other than as provided for herein or in the other Loan Documents (other than pursuant to any agreement or instrument governing Indebtedness permitted pursuant to Section 6.1(iv) or Section 6.1(v) that prohibits or otherwise restricts the transfer of any asset acquired or maintained utilizing the proceeds of such Indebtedness).

Section 6.14. Nature of Business.

No member of the Borrower Group (other than Parent) shall engage in any material respect in any business activity other than those activities specifically described in the definition of “Permitted Business.” Parent shall not engage in any business activity other than as a holding company of the Borrower.

Section 6.15. Fiscal Year.

No member of the Borrower Group shall change the end of its Fiscal Year from December 31.

Section 6.16. Restricted Payments.

The Borrower shall not, and shall not permit any member of the Borrower Group to, declare or make any Restricted Payment or any payment in connection with any tax sharing arrangement except for (a) Restricted Payments by any member of the Borrower Group (other than Parent) to any parent (other than Parent and the Canadian Subsidiaries) that is also a member of the Borrower Group; (b) dividends or other distributions, direct or indirect, to Parent (i) for the purchase of Equity Interests of Parent from officers and employees of any member of the Borrower Group pursuant to employee stock option plans and any similar agreements in an aggregate amount not to exceed $2,500,000 in any fiscal year, (ii) for the payment of Taxes due and payable by the Parent in respect of Parent’s income and/or the business of the Borrower Group and (iii) to pay the Redemption and Series C Preferred Share Payment on the Effective Date; and (c) distributions by any member of the Borrower Group (other than Parent) in respect of its Equity Interests which are payable solely in additional Equity Interests which are subject to a First Priority Lien in favor of the Administrative Agent (or, in the case of distributions by a Canadian Subsidiary any Equity Interests of which are owned by an entity organized in the

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▇▇▇▇▇▇ ▇▇▇▇▇▇, sixty-five percent (65%) of which is subject to such First Priority Lien in favor of the Administrative Agent).

Section 6.17. Accounts.

Except as otherwise provided in Section 5.11, the Borrower shall not, and shall not permit any member of the Borrower Group to, create or open any deposit account or securities account (each within the meaning of the UCC) (other than any Account subject to a Control Agreement or a Blocked Account subject to a Blocked Account Agreement) and other than any account maintained by any member of the Borrower Group to hold security deposits from counterparties to the revenue generating contracts entered into by the members of the Borrower Group.

Section 6.18. Funding of Foreign Subsidiaries

The Borrower shall not, and shall not permit any member of the Borrower Group to, (a) except for capital expenditures by a Canadian Subsidiary for its own account, make Consolidated Capital Expenditures on behalf of any members of the Borrower Group organized under the laws of any jurisdiction located outside of the United States or (b) make any capital contribution to or transfer any asset to any members of the Borrower Group organized under the laws of any jurisdiction located outside of the United States in an amount exceeding $10,000 in any fiscal year except for the Canadian Subsidiary Contribution.

Section 6.19. Termination of Real Estate Leases; Lease Litigation Cost.

The Borrower shall not, and shall not permit the Borrower Group to, incur cash costs in an aggregate amount greater than $4,000,000 in the aggregate after the Closing Date in connection with (a) the termination or cancellation, prior to their stated expiration dates, of any real estate leases and (b) any litigation or settlement regarding any such termination or cancellation or any claim relating thereto.

Section 6.20. Limitations on Unrestricted Subsidiaries.

Borrower shall not, permit Parent or any of its Subsidiaries that are not members of the Borrower Group, to be party to any contract, lease or other agreement which is, or own any assets which are, material to the business, assets, operations, results of operations or condition (financial or otherwise) of any member of the Borrower Group, other than:

(i) any contract pursuant to which any member of the Borrower Group is also a party if such contract provides that all rights and benefits (including the right to receive payments) provided to such member of the Borrower Group party thereto shall run in favor of only the member of the Borrower Group party thereto (and that the Parent or any Unrestricted Subsidiary shall have no right, title or interest in or to any such right or benefit);

(ii) any contract that is a guarantee of the obligations of any member of the Borrower Group under any contract to which it is a party; and

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(iii) any contract or other agreement in respect of the issuance by the Parent of its Equity Interests or debt securities, agreements in respect of Indebtedness or the issuance of equity of, or the contribution of capital to, any member of the Borrower Group, to the extent that such contract or other agreement is not otherwise prohibited by this Agreement or any of the other Loan Documents.

Section 6.21. Limitations on Uses of Proceeds of Canadian Subsidiary Contribution and Canadian Revolver Note.

Borrower shall not, and shall not permit any member of the Borrower Group (including, for the avoidance of doubt, any Canadian Subsidiary), to use the proceeds of (i) the Canadian Subsidiary Contribution for any purpose other than capital expenditures in respect of fixed or capital assets or additions to equipment (including replacements, capitalized repairs and improvements during such period) of any Canadian Subsidiary and (ii) the Canadian Revolver Note for any purpose other than general working capital and other general corporate purposes by the Canadian Subsidiaries.

ARTICLE VII.

EVENTS OF DEFAULT

Each of the following events or occurrences set forth in Section 7.1 through Section 7.15 shall constitute an “Event of Default”:

Section 7.1. Failure to Make Payments When Due.

The Borrower shall fail to pay any scheduled principal of any Loan when and as the same shall become due and payable; or the Borrower shall fail to pay any interest on any Loan or any fee payable under this Agreement or any other Loan Document when and as the same shall become due and payable, and such failure shall continue unremedied for a period of three days; or the Borrower or any other member of the Borrower Group shall fail to pay any other unscheduled principal amount or amount payable under this Agreement or any other Loan Document when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five days; or

Section 7.2. Default Under Other Indebtedness.

Any member of the Borrower Group (i) shall fail 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 Section 7.1) in an individual or aggregate principal amount of $2,500,000 or more beyond the end of any grace period provided therefor; or (ii) shall breach or default in its obligations with respect to any other material term of (a) one or more items of Indebtedness in the individual or aggregate principal amounts referred to in clause (i) above or (b) any loan agreement, mortgage, indenture or other agreement relating to such item(s) of Indebtedness, if the effect of such breach or default is to cause, or to permit the holder or holders of that Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, that Indebtedness 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 (upon the giving or receiving of notice, lapse of time, both, or otherwise); provided, however, the Event of Default that results under this

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Section 7.2 as a result of any such declaration under the Second Lien Credit Agreement will be automatically waived if and as of the time that declaration of acceleration is rescinded or waived under the Second Lien Credit Agreement; or

Section 7.3. Breach of Warranty.

Any representation or warranty made or deemed made by the Borrower or any Loan Party in this Agreement, or in any other Loan Document to which it is a party or in any certificate delivered by the Borrower or any Loan Party pursuant to this Agreement or any other Loan Document shall prove to have been false or misleading in any material respect as of the time made or deemed made; or

Section 7.4. Involuntary Bankruptcy Proceeding, Etc.

An involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of any Loan Party, or, in any such case, its debts, or a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Loan Party, and such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered; or

Section 7.5. Voluntary Bankruptcy Proceeding, Etc.

Any Loan Party shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of any proceeding or petition described in Section 7.4, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Loan Party for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing; or

Section 7.6. Judgments.

Any judgment or judgments (i) for the payment of money in an aggregate amount (not paid or entirely covered by insurance) in excess of $6,000,000 shall be entered or filed against any Loan Party or any of its assets and shall remain unpaid and undischarged, unvacated, unbonded or unstayed for a period of 45 days (or in any event later than five days prior to the date of any proposed sale of the respective assets thereunder), or (ii) shall be entered in the form of an injunction or similar form of relief requiring suspension or abandonment of a Permitted Business by any Loan Party and such injunction or similar relief requiring suspension or abandonment of a Permitted Business by any Loan Party and such injunction or similar relief shall not have been stayed, discharged or vacated within 45 days; or

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Section 7.7. Dissolution.

Any order, judgment or decree shall be entered against (a) any member or members of the Borrower Group that in the aggregate account for $7,000,000 or more of the Net Revenue of the Borrower Group (other than as a result of or in connection with the closure of (i) those facilities that are identified in Schedule 1.1.A as closing or (ii) those facilities the lease for which is the subject of any litigation referred to on Schedule 4.7), (b) the Borrower, or (c) the Parent, decreeing the dissolution or split up of such Person or Persons, and such order shall remain undischarged or unstayed for a period in excess of 30 days; or

Section 7.8. Change in Control.

A Change in Control shall have occurred; or

Section 7.9. Non-Performance of Certain Covenants and Obligations.

(i) Any Loan Party shall fail to perform any of its negative covenants (including all of the covenants set forth in Article VI of this Agreement) or agreements contained in any Loan Document to which it is a party; or

(ii) any Loan Party shall fail to observe or perform any covenant or agreement contained in this Agreement or any other Loan Document to which it is a party (other than those specified in Section 7.1 and Section 7.3 above or in clause (i) of this Section 7.9), and such failure in any case shall continue unremedied or unwaived for a period of 30 days after the earlier of (x) such Loan Party receives written notice thereof from the Administrative Agent and (y) an officer of such Loan Party becomes aware of such failure; or

Section 7.10. Impairment of Material Contract.

Any Material Contract shall cease to be valid and binding and in full force and effect (other than as a result of any termination due to the occurrence of the stated expiration date of such material contract) and such condition shall continue unremedied or unwaived for a period of 30 days; provided that, an Event of Default shall occur under this Section only if the failure of such other Material Contract to remain valid and binding and in full force and effect could reasonably be expected to have a Material Adverse Effect; or

Section 7.11. Default Under or Termination of Material Contracts.

Any of the Material Contracts shall terminate or be terminated or canceled prior to its stated expiration date or any Loan Party shall be in default (after the giving of any applicable notice and the expiration of any applicable grace period) under any of the Material Contracts and such condition shall continue unremedied or unwaived for a period of 30 days; provided that a default under or termination or cancellation of any Material Contracts shall constitute an Event of Default hereunder only if the termination of such Material Contract could reasonably be expected to have a Material Adverse Effect; or

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Section 7.12. Default Under or Termination of Governmental Actions.

The members of the Borrower Group shall fail to observe, satisfy or perform, or there shall be a violation or breach of, any of the material terms, provisions, agreements, covenants or conditions attaching to or under any material Governmental Action held by such member of the Borrower Group, or any such Governmental Action or any material provision thereof shall be terminated or fail to be in full force and effect, or any Governmental Instrumentality shall challenge or seek to revoke any such Governmental Action, if such failure to observe, satisfy or perform, breach or termination or challenge or revocation could reasonably be expected to have a Material Adverse Effect and such condition shall continue unremedied or unwaived for a period of 30 days; or

Section 7.13. Failure of Guaranty or Other Loan Document; Repudiation of Obligations.

At any time after the execution and delivery thereof, (i) any material provision of any Loan Document 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 a Loan Document in accordance with the terms hereof or thereof) or any Loan Document shall be declared null and void by a Governmental Instrumentality of competent jurisdiction, (ii) the Administrative Agent shall not have or shall cease to have a valid and perfected First Priority Lien in any material portion of the Collateral for any reason, or (iii) any Loan Party shall contest the validity or enforceability of any Loan Document in writing or deny in writing that it has any further liability prior to the indefeasible payment in full of all Obligations and the termination of all Commitments, including with respect to future advances by the Lenders, under any Loan Document to which it is a party; or

Section 7.14. Criminal Proceeding.

A criminal proceeding shall be commenced or a criminal indictment shall be filed against any member of the Borrower Group, which proceeding or indictment, if adversely determined, could reasonably be expected to have a Material Adverse Effect; or

Section 7.15. ERISA.

Any of the following events or conditions, if such event or condition could reasonably be expected to have a Material Adverse Effect: (i) any “accumulated funding deficiency,” as such term is defined in Section 302 of ERISA and Section 412 of the Code, whether or not waived, shall exist with respect to any Pension Plan, or any lien shall arise on the assets of any Loan Party or any ERISA Affiliate in favor of the PBGC or a Pension Plan; (ii) an ERISA Event shall occur with respect to a Pension Plan, which is, in the reasonable opinion of the Administrative Agent, likely to result in the termination of such Plan for purposes of Title IV of ERISA; (iii) an ERISA Event shall occur with respect to a Multiemployer Plan which is, in the reasonable opinion of the Administrative Agent, likely to result in (a) the termination of such Plan for purposes of Title IV of ERISA, or (b) any Loan Party or any ERISA Affiliate incurring any liability in connection with a withdrawal from, reorganization of (within the meaning of Section 4241 of ERISA), or insolvency (within the meaning of Section 4245 of ERISA) of such

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Plan; or (iv) any prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall occur which may subject any Loan Party or any ERISA Affiliate to any liability under Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant to which any Loan Party or any ERISA Affiliate has agreed or is required to indemnify any person against any such liability; or

Section 7.16. Initial Remedies.

Upon the occurrence of any Event of Default described in Section 7.4 or Section 7.5, each of (i) the unpaid principal amount of and accrued interest on the Loans and all fees, expenses and indemnities payable hereunder and (ii) 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 the Borrower, and the Commitments and obligation of each Lender to make any Loan or the Issuing Bank to issue any Letter of Credit shall thereupon terminate. Upon the occurrence and during the continuation of any other Event of Default, the Administrative Agent may, and upon the written request or with the written consent of the Required Lenders shall, by written notice to the Borrower, declare all or any portion of the amounts described in clauses (i) and (ii) above to be, and the same shall forthwith become, immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by the members of the Borrower Group, and the Commitments and obligation of each Lender to make any Loan or the Issuing Bank to issue any Letter of Credit shall thereupon terminate. Any amounts described in clause (ii) above which are unliquidated or contingent when received by the Administrative Agent, shall be held by the Administrative Agent pursuant to a cash collateral arrangement reasonably satisfactory to the Administrative Agent, to secure the Obligations. Nothing herein shall limit the right of the Administrative Agent, for the benefit of the Secured Parties, to exercise any other rights or remedies available to it or the Secured Parties at law or in equity, including without limitation all rights and remedies under the Collateral Documents and this Agreement. The Administrative Agent agrees that it will not issue any entitlement orders, directions and instructions with respect to any Blocked Account or the financial assets credited thereto until the occurrence and during the continuance of an Event of Default.

Furthermore, upon the occurrence of any Event of Default, the Administrative Agent may, and upon the written request or with the written consent of the Required Lenders shall, direct the Borrower to pay (and the Borrower agrees that upon receipt of such notice by the Borrower, or upon the occurrence of an Event of Default under either Section 7.4 or Section 7.5 the Borrower shall immediately pay) to the Administrative Agent additional cash, to be held by the Administrative Agent as cash collateral, for the benefit of the Lenders, as additional security for the Letter of Credit Obligations in respect of subsequent drawings under all then outstanding Letters of Credit in an amount equal to 105% of the Letter of Credit Obligations.

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ARTICLE VIII.

AGENTS

Section 8.1. Appointment.

A. Appointment of Agents. (i) DBAG is hereby appointed administrative agent and (ii) Canadian Imperial Bank of Commerce and Royal Bank of Canada are hereby appointed co-documentation agents, in each case under this Agreement and under the other Loan Documents. Each Lender hereby authorizes the Administrative Agent to act as its agent in accordance with the terms of this Agreement and the other Loan Documents. The Agents each agree to act upon the express conditions contained in this Agreement and the other Loan Documents, as applicable. The provisions of this Section 8.1 are solely for the benefit of the Agents and the Lenders. The Borrower shall have no rights as a third party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement, each of the Agents shall act solely as an agent of the Lenders for the Secured Parties and each Agent does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with or for the members of the Borrower Group.

B. Appointment of Supplemental Agents. It is the purpose of this Agreement and the other Loan Documents that there shall be no violation of any law of any jurisdiction denying or restricting the right of banking corporations or associations to transact business as agent or trustee in such jurisdiction. It is recognized that in case of litigation under this Agreement or any of the other Loan Documents, and in particular in case of the enforcement of any of the Loan Documents, or in case the Administrative Agent deems that by reason of any present or future law of any jurisdiction it may not exercise any of the rights, powers or remedies granted herein or in any of the other Loan Documents or take any other action which may be desirable or necessary in connection therewith, it may be necessary that the Administrative Agent appoint an additional individual or institution as a separate trustee, co-trustee, collateral agent or collateral co-agent (any such additional individual or institution being referred to herein individually as a “Supplemental Agent” and collectively as “Supplemental Agents”).

In the event that the Administrative Agent appoints a Supplemental Agent with respect to any Collateral, (i) each and every right, power, privilege or duty expressed or intended by this Agreement or any of the other Loan Documents to be exercised by or vested in or conveyed to the Administrative Agent with respect to such Collateral shall be exercisable by and vest in such Supplemental Agent to the extent, and only to the extent, necessary to enable such Supplemental Agent to exercise such rights, powers and privileges with respect to such Collateral and to perform such duties with respect to such Collateral, and every covenant and obligation contained in the Loan Documents and necessary to the exercise or performance thereof by such Supplemental Agent shall run to and be enforceable by either the Administrative Agent or such Supplemental Agent, (ii) the Administrative Agent shall have the right to remove any Supplemental Agent with or without cause at any time, and (iii) the provisions of this Section 8.1 and of Sections 9.2 and 9.3 that refer to the Administrative Agent shall inure to the benefit of such Supplemental Agent and all references therein to the Administrative Agent shall be deemed to be references to the Administrative Agent and/or such Supplemental Agent, as the context may require.

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Should any instrument in writing from the Borrower or any other Loan Party be required by any Supplemental Agent so appointed for more fully and certainly vesting in and confirming to it such rights, powers, privileges and duties, the Borrower shall, or shall cause such Loan Party to, execute, acknowledge and deliver any and all such instruments promptly upon request by the Administrative Agent. In case any Supplemental Agent, or a successor thereto, shall die, become incapable of acting, resign or be removed, all the rights, powers, privileges and duties of such Supplemental Agent, to the extent permitted by law, shall vest in and be exercised by the Administrative Agent until the appointment of a new Supplemental Agent.

Section 8.2. Powers and Duties; General Immunity.

▇. ▇▇▇▇▇▇; Duties Specified. Each Lender irrevocably authorizes the Administrative 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 the Administrative Agent by the terms hereof and thereof, together with such powers, rights and remedies as are reasonably incidental thereto. The Administrative Agent shall have only those duties and responsibilities that are expressly specified in this Agreement and the other Loan Documents. The Administrative Agent may exercise such powers, rights and remedies and perform such duties by or through its agents or employees. The Administrative Agent shall not 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 the Administrative 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. No Agent shall be responsible to any Lender for the execution, effectiveness, genuineness, validity, enforceability, collectability 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 any Agent to the Lenders or by or on behalf of the Borrower to any Agent or any Lender in connection with the Loan Documents and the transactions contemplated thereby or for the financial condition or business affairs of the Borrower Group or any other Person liable for the payment of any Obligations, nor shall any 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 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, no Agent shall have any liability arising from confirmations of the amount of outstanding Loans or the component amounts thereof.

C. Exculpatory Provisions. None of the Agents nor any of their respective officers, directors, employees or agents shall be liable to the Lenders for any action taken or omitted by any 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. The Agents 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

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power, discretion or authority vested in it hereunder or thereunder unless and until such Agent shall have received instructions in respect thereof from the Required Lenders (or such other Lenders as may be required to give such instructions under Section 9.6) and, upon receipt of such instructions from the Required 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 limiting 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 the members of the Borrower Group), accountants, experts and other professional advisors selected by it and (ii) no Lender shall have any right of action whatsoever against any 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 the Required Lenders (or such other Lenders as may be required to give such instructions under Section 9.6).

D. Agents Entitled to Act as Lender. The agencies hereby created shall in no way impair or affect any of the rights and powers of, or impose any duties or obligations upon, any Agent in its individual capacity as a Lender hereunder. With respect to its participation in the Loans or Letters of Credit, each 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 the “Lenders” or any similar term shall, unless the context clearly otherwise indicates, include each Agent in its individual capacity as a Lender. 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 any member of the Borrower Group or any of its Affiliates as if it were not performing the duties specified herein, and may accept fees and other consideration from the members of the Borrower Group for services in connection with this Agreement and otherwise without having to account for the same to the Lenders.

E. No Co-Documentation Agent and Syndication Agent Duties. Notwithstanding anything to the contrary herein, the Co-Documentation Agents and the Co-Syndication Agents shall have no duties or obligations under this Agreement or the other Loan Documents.

Section 8.3. Representations and Warranties; No Responsibility for Appraisal of Credit Worthiness.

Each Lender represents and warrants to the Agents and each other Lender that it has made its own independent investigation of the financial condition and affairs of the members of the Borrower Group in connection with the making of the Loans hereunder and that it has made and shall continue to make its own appraisal of the creditworthiness of the members of the Borrower Group. No 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 the 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 no Agent shall have any responsibility with respect to the accuracy of or the completeness of any information provided to the Lenders.

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Section 8.4. Right to Indemnity.

Each Lender, in proportion to its Pro Rata Share, severally agrees to indemnify each Agent, to the extent that each Agent shall not have been reimbursed by the Borrower or any member of the Borrower Group, 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 any Agent in exercising its powers, rights and remedies or performing its duties hereunder or under the other Loan Documents or otherwise in its capacity as Agent 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 such Agent’s gross negligence or willful misconduct. If any indemnity furnished to any Agent for any purpose shall, in the opinion of such Agent be insufficient or become impaired, such Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished.

Section 8.5. Successor Agents.

Any Agent may resign at any time by giving 30 days’ prior written notice thereof to the Lenders and the Borrower. Upon any such notice of resignation, the Required Lenders shall have the right, upon five Business Days’ notice to the Borrower, to appoint a successor Agent (provided that such successor is or simultaneously therewith becomes a Lender). Upon the acceptance of any appointment as Agent hereunder by a successor Agent, that successor Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations under this Agreement. After any retiring Agent’s resignation hereunder as Agent, the provisions of this Article VIII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement.

Section 8.6. Intercreditor Agreement, Collateral Documents and Subsidiary Guaranties.

Each Lender hereby further authorizes the Administrative Agent, on behalf of and for the benefit of the Lenders, to enter into the Intercreditor Agreement and each Collateral Document as secured party or beneficiary (as applicable), and each Lender agrees to be bound by the terms of the Intercreditor Agreement and each Collateral Document; provided that the Administrative Agent shall not (i) enter into or consent to any material amendment, modification, termination or waiver of any provision of the Intercreditor Agreement or any Collateral Document, 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 the Required Lenders (or, if required pursuant to Section 9.6, all the Lenders); provided, further, however, that, without further written consent or authorization from the Lenders, the Administrative Agent may execute any documents or instruments necessary to (i) release any Subsidiary from its Guaranty Agreement to the extent all of the stock of such Subsidiary is sold in a transaction permitted under this Agreement or otherwise consented to by the Required Lenders in accordance with Section 9.6 (or by all Lenders, if required by Section 9.6) and (ii)

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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 the Required Lenders have otherwise consented in accordance with Section 9.6 (or to which all Lenders have consented, if required by Section 9.6). Anything contained in any of the Loan Documents to the contrary notwithstanding, the Borrower, the Administrative 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, it being understood and agreed that all powers, rights and remedies under the Collateral Documents may be exercised solely by the Administrative Agent for the benefit of the Secured Parties in accordance with the terms thereof, and (Y) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or the Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent at such sale.

Section 8.7. Application of Proceeds.

Following the occurrence of an Event of Default, subject to the provisions and effects of the Intercreditor Agreement, the proceeds of any collection, sale or other realization of all or any part of the Collateral pursuant to the Collateral Documents, and any other cash at the time of such collection, sale or other realization held by or on behalf of the Administrative Agent under the Collateral Documents or this Section, shall be applied by the Administrative Agent in the following order or priority and, with the exception of clause (i) below, shall be based upon information furnished to the Administrative Agent by the appropriate Secured Party:

(i) first, to the payment of (a) all costs and expenses relating to the sale of the Collateral and the collection of all amounts owing hereunder (including reasonable attorneys’ fees and actual expenses and the reasonable compensation of the Administrative Agent for services rendered in connection therewith or in connection with any proceeding to sell if a sale is not completed, in each case, whether arising hereunder or under the Loan Documents), (b) all charges, expenses and advances incurred or made by the Administrative Agent in order to protect the Liens of the Collateral Documents or the security afforded thereby, (c) all liabilities (including those specified in clauses (a) and (b) immediately above) incurred by the Administrative Agent regardless of whether such liabilities arise out of the sale of Collateral or the collection of amounts owing hereunder and (d) all expenses owed to the Agents pursuant to Section 9.2 hereof, together with interest thereon at the rate per annum equal to the Default Rate computed on the basis of the actual number of days elapsed and a year of 360 days;

(ii) second, to the payment of accrued and unpaid interest on principal of the Obligations, ratably, in an amount necessary to make the Secured Parties current on interest on overdue principal due under the Loan Documents to the same proportionate extent as the other Secured Parties are then current on interest on overdue principal due under the Loan Documents;

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(iii) third, to the payment to each of the Secured Parties of any accrued but unpaid commitment fees or other fees owed to such Person, pro rata in accordance with the amount of such unpaid fees owed to such Person;

(iv) fourth, to the payment to each of the Secured Parties of the remaining principal, premium, interest, fees and other Obligations (including the provision of cash collateral in respect of the outstanding Letters of Credit in an amount equal to 105% of such Letter of Credit Obligations) owed to such Person, pro rata in accordance with the amount of principal, premium, interest, fees and other Obligations owed to such Person, to be applied by each such Person in accordance with the respective Loan Documents or Interest Rate Agreement pursuant to which such Obligations were incurred;

(v) fifth, to amounts secured by the Second Lien Collateral Documents; and

(vi) sixth, to such other Person or Persons as may be entitled thereto.

As used herein, “proceeds” of Collateral shall mean cash, Cash Equivalents, securities and other property realized in respect of, and distributions in kind of, Collateral, including any cash, securities and other property received under any reorganization, liquidation or adjustment of indebtedness of any member of the Borrower Group or any other issuer of or obligor on any of the Collateral.

ARTICLE IX.

MISCELLANEOUS

Section 9.1. Assignments and Participations in Loans.

A. General. Subject to Section 9.1.B, any Lender shall have the right at any time to:

(i) sell, assign or transfer to any Eligible Assignee, or

(ii) sell participations to any Eligible Assignee or, with the approval of the Borrower (which shall not be unreasonably withheld or delayed) to any other Person in, all or any part of its Commitments or any Loan or Loans made by it 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 the Borrower, require the Borrower to file a registration statement with the Securities and Exchange Commission 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 accepted by and recorded by the Administrative Agent in the Register as provided in Section 9.1.B(ii). Except as otherwise provided in this Section 9.1, no Lender shall, as between the Borrower 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 or participations therein, or the other Obligations owed to such Lender.

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B. Assignments.

(i) Amounts and Terms of Assignments. Each Commitment, Loan, 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 or an Approved Fund, with the giving of notice to the Borrower and the Administrative Agent, or

(b) be assigned in an aggregate amount of not less than $1,000,000 (or such lesser amount as shall constitute the aggregate amount of the Commitments, Loans, and other Obligations of the assigning Lender) to any other Eligible Assignee (i) with the consent of the Borrower and the Administrative Agent (which consent shall not, in each such case, be unreasonably withheld or delayed), provided that the consent of the Borrower shall not be required with respect to any assignment by any of the Agents, in their capacities as Lenders, during the forty-five (45) day period commencing on the Closing Date, or (ii) upon the occurrence and during the continuance of an Event of Default or Potential Event of Default, with the consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed).

(c) 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, or participations therein, or other Obligations or the portion thereof so assigned. The assignor or assignee to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment Agreement, together with a processing and recordation fee of $3,500 (other than with respect to an assignment to an Affiliate of the assignor or to an Approved Fund with respect to the assignor) and such forms, certificates or other evidence, if any, with respect to United States federal income tax withholding matters as the assignee under such Assignment Agreement may be required to deliver to the Administrative Agent pursuant to Section 2.7.B. 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 Section 9.9) 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). 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 Notes hereunder, the assigning

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Lender shall, upon the effectiveness of such assignment or as promptly thereafter as practicable, surrender its applicable Note to the Administrative Agent for cancellation, and thereupon a new Note shall be issued to the assignee and to the assigning Lender, substantially in the form of Exhibit ▇-▇, ▇-▇ ▇▇ ▇-▇ hereto, as applicable, with appropriate insertions, to reflect the new Commitments and/or outstanding 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 Section 9.1.B(i) and any forms, certificates or other evidence with respect to United States federal income tax withholding matters that such assignee may be required to deliver to the Administrative Agent pursuant to Section 2.7.B, the Administrative Agent shall, if the Administrative Agent has consented to the assignment evidenced thereby (to the extent such consent is required pursuant Section 9.1.B(i)), (a) accept such Assignment Agreement by executing a counterpart thereof as provided therein (which acceptance shall evidence any required consent of the Administrative Agent to such assignment), (b) record the information contained therein in the Register, and (c) give prompt notice thereof to the Borrower. An assignment shall not be effective until properly recorded in the Register. The Administrative Agent shall maintain a copy of each Assignment Agreement delivered to and accepted by the Administrative Agent as provided in this Section 9.1.B(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, (ii) a reduction of the principal amount of or the rate of interest payable on any Loan allocated to such participation, or (iii) releasing all or substantially all of the Collateral, and all amounts payable by the Borrower hereunder (including amounts payable to such Lender pursuant to Sections 2.6.D and 2.7) shall be determined as if such Lender had not sold such participation. The Borrower and each Lender hereby acknowledge and agree that, solely for purposes of Sections 9.4 and 9.5, (a) any participation will give rise to a direct obligation of the Borrower to the participant and (b) the participant shall be considered to be a “Lender.”

D. Pledges of Loans. In addition to the assignments and participations permitted under the foregoing provisions of this Section 9.1, any Lender may assign and pledge all or any portion of its Loans, the other Obligations owed to such Lender, and its Notes (i) 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/or (ii) with prior notification to the Administrative Agent (but without the consent of the Administrative Agent or the Borrower), to any trustee, collateral agent or creditor that is providing credit or credit support to such Lender in support of its obligations to such trustee, such collateral agent or such creditor, as the case may be; provided that (i) no Lender shall, as between the Borrower and such Lender, be relieved of any of its obligations hereunder as a result of any such assignment and pledge, (ii) in no event shall such Federal Reserve Bank or such trustee, collateral agent or other creditor be considered to be a “Lender” or be entitled to require

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the assigning Lender to take or omit to take any action hereunder, and (iii) no such pledgee referred to in this paragraph shall have the right to become a Lender or to further transfer all or any portion of the Loans or other rights pledged to or granted to it, whether by means of foreclosure or otherwise, except in compliance with the assignment provisions (including any required consents and notices) set forth in this Agreement.

E. Information. Each Lender may furnish any information concerning the members of the Borrower Group, the Loan Documents, and any related documents or information in the possession of that Lender from time to time to assignees and participants (including prospective assignees and participants).

F. Representations of the Lenders. Each Lender hereby represents and warrants 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 or state securities laws (it being understood that, subject to the provisions of this Section 9.1, the disposition of 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 such Assignment Agreement are incorporated herein by this reference.

Section 9.2. Expenses.

Whether or not the transactions contemplated hereby shall be consummated, the Borrower agrees to pay promptly:

(i) all the actual and reasonable costs and expenses of negotiation, preparation, and execution of the Loan Documents and any consents, amendments, waivers or other modifications thereto (whether or not such costs were incurred prior to or after the Closing Date);

(ii) all the costs of furnishing all opinions by counsel for the members of the Borrower Group, including any opinions requested by the Lenders as to any legal matters arising hereunder and of the performance of and compliance by the member of the Borrower Group 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 any Agent 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 the Borrower;

(iv) all the actual costs and reasonable expenses of creating and perfecting Liens in favor of the Administrative Agent on behalf of the Secured Parties pursuant to any Collateral Document, including filing and recording fees, expenses and taxes, stamp or documentary taxes, search fees, title insurance premiums, and reasonable fees, expenses and disbursements of counsel to the Administrative Agent and of counsel

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providing any opinions that the Administrative Agent may request in respect of the Collateral Documents or the Liens created pursuant thereto;

(v) all the actual costs and reasonable expenses (including the reasonable fees, expenses and disbursements) of any auditors, accountants or appraisers and any environmental or other consultants, any advisors and agents employed or retained by the Administrative Agent or any Supplemental Agent pursuant to this Agreement or any other Loan Document (including, without limitation, any financial advisor for the purpose of evaluating the projections and business plan of the Borrower Group or undertaking a valuation opinion and/or a liquidation analysis);

(vi) costs and expenses relating to the custody or preservation of any of the Collateral;

(vii) all other actual and reasonable costs and expenses incurred by the Agents in connection with the syndication of the Commitments; and

(viii) after the occurrence of an Event of Default, all costs and expenses, including reasonable attorneys’ fees (including allocated costs of internal counsel) and costs of settlement, incurred by each Agent and the Lenders 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 any guaranty) 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.

Section 9.3. Indemnity.

In addition to the payment of expenses pursuant to Section 9.2, whether or not the transactions contemplated hereby shall be consummated, the Borrower agrees to defend, indemnify, pay and hold harmless each Agent, the Lead Arrangers and the Lenders, and the officers, directors, employees, agents and affiliates of each Agent, the Lead Arrangers and the Lenders (collectively, the “Indemnitees”), from and against any and all Indemnified Liabilities (as hereinafter defined); provided that the Borrower 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 (including natural resource damages), penalties, actions, judgments, suits, claims (including Environmental Claims), costs (including the costs of any investigation, study, sampling, testing, abatement, cleanup, removal, remediation or other response action necessary to remove, remediate, clean up or ▇▇▇▇▇ any Hazardous Materials Activity as required by applicable Environmental Laws), 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

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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, the Material Contracts, or the transactions contemplated hereby or thereby (including the Lenders’ agreement to make the Loans hereunder or the use or intended use of the proceeds thereof 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 any guaranty), (ii) the statements contained in the Commitment Letter delivered by any Lender to the Borrower with respect thereto, or (iii) any Environmental Claim or any Hazardous Materials Activity relating to or arising from, directly or indirectly, any past or present activity, operation, land ownership, or practice of any member of the Borrower Group, but excluding any Environmental Claim to the extent arising solely as a result of the gross negligence of any Indemnitee during the course of any investigations of the Borrower Group’s sites or operations by such Indemnitee pursuant to Section 5.9.A of this Agreement.

To the extent that the undertakings to defend, indemnify, pay and hold harmless set forth in this Section 9.3 may be unenforceable in whole or in part because they are violative of any law or public policy, the Borrower 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 the Indemnitees or any of them.

Section 9.4. Set-Off; Security Interest in Deposit Accounts.

Subject to the last sentence of this Section 9.4, 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 the Borrower at any time or from time to time, without notice to the 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 the Borrower against and on account of the obligations and liabilities of the Borrower to that Lender under this Agreement and the other Loan Documents, including all claims of any nature or description arising out of or connected with this Agreement or any other Loan Document, irrespective of whether or not (i) that Lender shall have made any demand hereunder or (ii) the principal of or the interest on the Loans or any other amounts due hereunder shall have become due and payable pursuant to Article VII and although said obligations and liabilities, or any of them, may be contingent or unmatured. The Borrower hereby further grants to the Administrative Agent and each Lender a security interest in all deposits and accounts maintained with the Administrative Agent or such Lender as security for the Obligations. Notwithstanding anything to the contrary herein or in any other Loan Document, the Lenders hereby agree among themselves that no Lender shall exercise any right of setoff or banker’s lien, collect any payments due from any Loan Party hereunder or under any of the other Loan Documents, or otherwise exercise any of their rights in respect of the

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Collateral hereunder or under any of the other Loan Documents without the prior written consent of either the Administrative Agent or the Required Lenders.

Section 9.5. Ratable Sharing.

The 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 setoff 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, 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 the 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 the Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by all the 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 the Borrower 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. The Borrower 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 the Borrower to that holder with respect thereto as fully as if that holder were owed the amount of the participation held by that holder.

Section 9.6. Amendments and Waivers.

No amendment, modification, termination or waiver of any provision of this Agreement or of the Notes, and no consent to any departure by the Borrower therefrom, shall in any event be effective without the written concurrence of the Required Lenders; provided that any such amendment, modification, termination, waiver or consent which:

(i) increases the aggregate amount of the Commitments of any Class of Loans (other than as a result of a waiver of an Event of Default) or reduces the principal amount of any of the Loans;

(ii) changes in any manner the definition of “Pro Rata Shares” or the definition of “Required Lenders” or any provision to the extent that it provides for Loans to be made (or for indemnities or other obligations of the Lenders to be shared) on a pro rata basis or for payments to be allocated to a Class of Loans on a pro rata basis;

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(iii) changes in any manner any provision of this Agreement which, by its terms, expressly requires the approval or concurrence of all the Lenders;

(iv) increases the maximum duration of Interest Periods permitted hereunder;

(v) changes in any manner the provisions contained in Section 9.1 or this Section 9.6; or

(vi) releases or subordinates any Lien (other than in accordance with the Loan Documents) granted in favor of the Administrative Agent with respect to all or substantially all of the Collateral;

shall be effective only if evidenced by a writing signed by all of the Lenders; and provided further that any amendment, modification, termination, waiver or consent in respect of any Class of Loans which:

(i) postpones the scheduled final maturity date of such Class of Loans;

(ii) postpones the date or reduces the amount of any scheduled payment (but not prepayment) of principal of such Class of Loans or any scheduled reduction in Commitments thereof;

(iii) postpones the date on which any interest or any fees or other amounts are payable;

(iv) decreases the interest rate or the amount of interest borne by any of the Loans (other than any waiver of any increase in the interest rate applicable to any of the Loans pursuant to Section 2.3.E) or the amount of any fees or other amounts payable hereunder;

shall be effective only if evidenced by a writing signed by all of the Lenders of such Class of Loans. In addition, notwithstanding anything else herein to the contrary, (i) no amendment, modification, termination or waiver of any provision of any Note or of the amount of any Commitment by a Lender shall be effective without the written concurrence of the Lender which is the holder of that Note or which made such Commitment, (ii) no amendment, modification, termination or waiver of any provision of Article VIII or of any other provision of this Agreement which, by its terms, expressly requires the approval or concurrence of the Administrative Agent shall be effective without the written concurrence of the Administrative Agent, (iii) no amendment, modification, termination or waiver of any right or obligation of any Issuing Bank or of any other provision of this Agreement which, by its terms, expressly requires the approval or concurrence of any Issuing Bank shall be effective without the written concurrence of such Issuing Bank, and (iv) no amendment, modification, termination or waiver of any condition set forth in Section 3.2 (including without limitation any waiver of an Event of Default or Potential Event of Default for the purpose of satisfying the conditions of such sections, even though such Event of Default or Potential Event of Default may be waived by the Required Lenders for other purposes) with respect to the making of a Revolving Loan or issuing a Letter of Credit shall be effective without the

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written concurrence of the Supermajority Lenders. The Administrative Agent may, but shall have no obligation to, with the written 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 the Borrower in any case shall entitle the 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 Section 9.6 shall be binding upon each Lender at the time outstanding, each future Lender and, if signed by the Borrower, on the Borrower.

Section 9.7. Independence of Covenants.

All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or would otherwise be within the limitations of, another covenant shall not avoid the occurrence of an Event of Default or Potential Event of Default if such action is taken or condition exists.

Section 9.8. Notices.

Unless otherwise specifically provided herein, any notice or other communication herein required or permitted to be given shall be in writing addressed to the respective party as set forth below or on Schedule 2.1 and may be personally served, telexed, or sent by telefacsimile, overnight courier service or United States mail and shall be deemed to have been given: (a) if delivered in person, when delivered; (b) if delivered by telecopy, on the date of transmission if transmitted on a Business Day before 4:00 p.m. Eastern Standard Time or, if not, on the next succeeding Business Day; (c) if delivered by overnight courier, two days after delivery to such courier properly addressed; or (d) if delivered by United States mail, three Business Days after deposit in the United States mail, with postage prepaid and properly addressed; provided, however, that notices to the Administrative Agent shall not be effective until received.

If to the Administrative Agent, DBAG or DBSI:

▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇

▇▇ ▇▇▇▇ ▇▇▇▇▇▇

▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇

Attention: ▇▇▇▇ ▇▇▇▇▇▇, Director

Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇

If to the Borrower:

Switch & Data Holdings, Inc.

▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇

▇▇▇▇▇, ▇▇ ▇▇▇▇▇

Attention: Chief Financial Officer

Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇

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or to such other address as the party addressed shall have previously designated by written notice to the serving party, given in accordance with this Section.

Section 9.9. Survival of Representations, Warranties and Agreements.

A. All representations, warranties, covenants and agreements made herein and in the certificates or other instruments delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the parties hereto and shall survive the execution and delivery of this Agreement and the making of the Loans.

B. Notwithstanding anything in this Agreement or implied by law to the contrary, (i) the agreements of the Borrower set forth in Sections 2.2.J, 2.6.D, 2.7, 9.2, 9.3 and 9.4 and the agreements of the Lenders set forth in Sections 8.2.C, 8.4, and 9.5 shall survive the payment of the Loans and the reimbursement of any amounts drawn thereunder, and the termination of this Agreement, and (ii) amounts which are payable under the Sections listed in clause (i) of this paragraph under the Original Credit Agreement shall continue to be payable, for the benefit of the current Lenders and all former Lenders, as applicable, under this Second Amended and Restated Credit Agreement.

Section 9.10. 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.

Section 9.11. Marshaling; Payments Set Aside.

Neither the Administrative Agent nor any Lender shall be under any obligation to marshal any assets in favor of the Borrower or any other party or against or in payment of any or all of the Obligations. To the extent that the Borrower makes a payment or payments to the Administrative Agent or the Lenders (or to the Administrative Agent for the benefit of the Lenders), or the Administrative Agent or the 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.

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Section 9.12. 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.

Section 9.13. Obligations Several; Independent Nature of the Lenders’ Rights.

The obligations of the 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 the Lenders pursuant hereto or thereto, shall be deemed to constitute the 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.

Section 9.14. Effectiveness.

This Agreement shall become effective, and the Original Credit Agreement shall be amended and restated, on the Effective Date.

Section 9.15. Headings.

Section and subsection headings contained in this Agreement are inserted for convenience of reference only, shall not be deemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the provisions hereof.

Section 9.16. Governing Law; Entire Agreement.

This Agreement shall be governed by, and shall be construed and enforced in accordance with, the internal laws of the State of New York, without regard to conflicts of laws principles (other than Sections 5-1401 and 5-1402 of the General Obligations Law of the State of New York). This Agreement and the other Loan Documents constitute the entire understanding among the parties hereto with respect to the subject matter hereof and supersede any prior agreements, written or oral, with respect thereto.

Section 9.17. Successors and Assigns.

This Agreement shall be binding upon the parties hereto and their respective successors and permitted assigns and shall inure to the benefit of the parties hereto and the successors and permitted assigns of the Lenders (it being understood that the Lenders’ rights of assignment are subject to Section 9.1). None of the Borrower’s rights or obligations hereunder nor any interest therein may be assigned or delegated by the Borrower without the prior written consent of all the Lenders.

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Section 9.18. Consent to Jurisdiction and Service of Process.

All judicial proceedings brought against any party hereto 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 executing and delivering this Agreement or an Assignment Agreement, each party 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 its address provided in accordance with Section 9.8 or an Assignment Agreement;

(iv) with respect to the Borrower, agrees that service as provided in clause (iii) above is sufficient to confer personal jurisdiction over the Borrower in any such proceeding in any such court, and otherwise constitutes effective and binding service in every respect;

(v) with respect to the Borrower, agrees that Lenders retain the right to serve process in any other manner permitted by law or to bring proceedings against the Borrower in the courts of any other jurisdiction; and

(vi) agrees that the provisions of this Section 9.18 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.

Section 9.19. Waiver of Jury Trial.

EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE 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 BETWEEN 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 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 SECTION 9.19 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS

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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.

Section 9.20. Limited Recourse.

There shall be full recourse to the members of the Borrower Group for the liabilities of the members of the Borrower Group under this Agreement and the other Loan Documents, but in no event shall any holder of any equity interest in the Parent (or any officer or director of such holder or any officer or director of any member of the Borrower Group, in its capacity as such) be personally liable or obligated for such liabilities of the members of the Borrower Group except to the extent set forth in any Loan Document to which it is a party.

Section 9.21. Limitation of Liability.

No claim shall be made by the Borrower or any of its Affiliates against any of the Agents, the Lead Arranger, any of the Lenders or any of their Affiliates, directors, employees, attorneys or agents for any special, indirect, consequential or punitive damages (whether or not the claim therefor is based on contract, tort or duty imposed by law), in connection with, arising out of or in any way related to the transactions contemplated by this Agreement, the other Loan Documents, the Material Contracts or any act or omission or event occurring in connection therewith, and the Borrower hereby waives, releases and agrees not to ▇▇▇ upon any such claim for any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.

Section 9.22. Satisfaction.

Upon the indefeasible payment (whether in Cash and/or other consideration which is satisfactory to the Lenders in their sole discretion) and performance in full of the Obligations and termination of all of the Commitments hereunder, and the termination of all Interest Rate Agreements to which any Secured Party is a party (i) each of the Collateral Documents and the security interest created thereby shall terminate and (ii) upon written request of the Borrower, the Administrative Agent shall execute and deliver to the Borrower, at the Borrower’s expense and without representation or warranty by or recourse to the Administrative Agent or the Secured Parties, all certificates, representations or evidences of the Pledged Shares (as defined in the Pledge Agreements) together with all other Pledged Collateral (as defined in the Pledge Agreements) held by the Administrative Agent under any of the Collateral Documents and such documents as the Borrower shall reasonably request to evidence such termination, and the Borrower shall deliver to the Administrative Agent a general release of all of the Administrative Agent’s and the Secured Parties’ liabilities and Obligations under all Loan Documents and an acknowledgment that the same have been terminated.

Section 9.23. 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

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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 attached to the same document. A facsimile of an executed counterpart shall have the same effect as the original executed counterpart.

Section 9.24. Confidentiality.

In connection with the negotiation and administration of this Agreement and the other Loan Documents, the Borrower has furnished and will from time to time furnish to the Agents, the Issuing Bank and the Lenders (each a “Recipient”), written information which is identified to the Recipient in writing when delivered as confidential (such information, other than any such information which (i) was publicly available or otherwise known to the Recipient at the time of disclosure, (ii) subsequently becomes publicly available other than through any act or omission by the Recipient, or (iii) otherwise subsequently becomes known to the Recipient other than through a Person whom the Recipient knows to be acting in violation of his or its obligations to the Borrower, being hereinafter referred to as “Confidential Information”). The Recipient shall maintain the confidentiality of any Confidential Information in accordance with such procedures as the Recipient applies generally to information of that nature. It is understood, however, that the foregoing will not restrict the Recipient’s ability to freely exchange such Confidential Information with current or prospective participants in, assignees of, or counterparties (or their advisors) to any swap, securitization or derivative transaction referencing the Recipient’s position herein, but the Recipient’s ability to so exchange Confidential Information shall be conditioned upon any such prospective participant’s, assignee’s or counterparty’s entering into a written agreement as to confidentiality that is similar to this provision. It is further understood that the foregoing will not prohibit the disclosure of any or all Confidential Information if and to the extent that such disclosure may be required or requested:

(i) by a regulatory agency or otherwise in connection with an examination of the Recipient’s records by appropriate authorities;

(ii) pursuant to court order, subpoena or other legal process or in connection with any pending or threatened litigation;

(iii) otherwise as required by law; or

(iv) in order to protect its interest or its rights or remedies hereunder or under the other Loan Documents.

(v) In the event of any required disclosure under clause (ii) or (iii) above, the Recipient agrees to use reasonable efforts to inform the Borrower as promptly as practicable.

Notwithstanding anything herein to the contrary, the Administrative Agent and each Lender may disclose to any Persons any information with respect to the U.S. federal income tax treatment and U.S. federal income tax structure of the transactions contemplated by this Agreement, and all materials of any kind, including opinions or other tax analyses, that are provided to the Administrative Agent or any Lender relating to such tax treatment and tax structure.

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Section 9.25. Amounts in Canadian Dollars; Judgment Currency.

(a) Any limitation or amount that is referred to herein with respect to the Canadian Subsidiaries that is denominated herein in Dollars which is received or paid by a Canadian Subsidiary in Canadian Dollars, including any distribution of income to another member of the Borrower Group that is to be included in the Consolidated Net Income of the Borrower and its Subsidiaries pursuant to clause (iii) of the definition of Consolidated Net Income, shall be valued for the purposes hereof at the Dollar Equivalent of such Canadian Dollar amount on the date that such amount is received or paid by such Canadian Subsidiary (i.e. with respect to the amounts included in Consolidated Net Income pursuant to clause (iii) of the definition thereof, the Dollar Equivalent on the date of the payment of the applicable amount to another member of the Borrower Group).

(b) Borrower waives any right it may have in any jurisdiction to pay any amount with respect to the Obligations in a currency other than Dollars. Notwithstanding the foregoing, if, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder in Dollars into another currency, the parties hereto agree, to the fullest extent permitted by applicable Legal Requirements, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase Dollars with such other currency on the Business Day preceding that on which final judgment is given. The obligations of the Borrower in respect of any sum due from them to the Administrative Agent hereunder shall, notwithstanding any judgment in a currency other than Dollars, be discharged only to the extent that, on the Business Day following receipt thereof by the Administrative Agent, the Administrative Agent may in accordance with normal banking procedures purchase Dollars with such other currency in which judgment was rendered; if the amount of Dollars, so purchased exceeds the sum originally due to the Administrative Agent in the former currency, the Administrative Agent agrees to remit to the Borrower such excess.

Section 9.26. USA Patriot Act Notice.

Each Lender and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub.L.107-56 (signed into law October 26, 2001)) (the “Patriot Act”), it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in accordance with the Patriot Act.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized representatives as of the day and year first above written.


SWITCH & DATA HOLDINGS, INC., as Borrower

By:		/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Name:		▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title:		Treasurer