Exhibit 10.20


AMENDMENT NO. 1 TO

AMENDED & RESTATED CREDIT AGREEMENT


This Amendment No. 1
to Amended & Restated Credit Agreement (this “Agreement” or this “Amendment”) dated as of June 21,
2007 (the “Agreement Date”) is made by
and among MUELLER WATER PRODUCTS, INC., a Delaware corporation (the “Borrower”), BANK OF AMERICA, N.A., a
national banking association organized and existing under the laws of the
United States (“Bank of
America”), in its capacity as administrative agent for the
Lenders (as defined in the Credit Agreement (as defined below)) (in such
capacity, the “Administrative
Agent”), and each of the Guarantors (as defined in the Credit
Agreement) signatory hereto.


W I T N E S S E T
H:


WHEREAS, the Borrower, Bank of America, as Administrative
Agent, and the Lenders (as defined in the Credit Agreement) have entered into
that certain Amended & Restated Credit Agreement dated as of May 24,
2007 (as hereby amended and as from time to time further amended, modified,
supplemented, restated, or amended and restated, the “Credit Agreement”; capitalized terms used in this Agreement not
otherwise defined herein shall have the respective meanings given thereto in
the Credit Agreement), pursuant to which the Lenders have made available to the
Borrower a term loan facility and a revolving credit facility, including a
letter of credit facility; and


WHEREAS, each of the Guarantors has entered into a Guaranty
pursuant to which it has guaranteed certain or all of the obligations of the
Borrower under the Credit Agreement and the other Loan Documents; and


WHEREAS,
pursuant to subpart (vii) of the second proviso
to  Section 11.01 of the Credit Agreement, each Lender has agreed
that the Administrative Agent, the Borrower and the Guarantors may enter into
an amendment constituting the Fronting Structure Amendment, which amendment
shall become fully effective as an amendment to the Credit Agreement without
any notice to, action by or consent of any Lender, and the Borrower has
requested that this Agreement be so entered into by the Borrower, the
Guarantors and the Administrative Agent as the Fronting Structure Amendment;


NOW, THEREFORE, in consideration of the premises and further
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:


1.          Amendments to Credit Agreement.   Subject to the terms
and conditions set forth herein, the Credit Agreement is hereby amended such
that, after giving effect to all such amendments, it shall read in its entirety
as attached hereto as Exhibit A,
and each of the parties hereto agrees that such amendment constitutes the
Fronting Structure Amendment provided for in subpart (vii) of
the second proviso to Section 11.01
of the Credit Agreement.


2.          Effectiveness; Conditions Precedent.   The effectiveness
of this Agreement and the amendments to the Credit Agreement provided in Section 1 hereof are all subject to the satisfaction of
each the following conditions precedent:


(a)        The
Administrative Agent shall have received, in form and substance reasonably
acceptable to the Administrative Agent, counterparts of this Agreement, duly
executed by the Borrower, the Administrative Agent and each Guarantor, which
counterparts may be delivered by telefacsimile or other electronic means, but
such delivery will be promptly followed by the delivery of four (4) original
signature pages by each Person party hereto unless waived by the
Administrative Agent.













(b)        All
fees and expenses payable to the Administrative Agent (including the reasonable
fees and expenses of counsel to the Administrative Agent) shall have been paid
in full (without prejudice to final settling of accounts for such fees and
expenses).


3.          Consent of the Guarantors.   Each Guarantor hereby
consents, acknowledges and agrees to the amendments and other matters set forth
herein and hereby confirms and ratifies in all respects the Guaranty to which
such Guarantor is a party (including without limitation the continuation of
such Guarantor’s payment and performance obligations thereunder upon and after
the effectiveness of this Agreement and the amendments, waivers and consents
contemplated hereby) and the enforceability of such Guaranty against such
Guarantor in accordance with its terms.


4.          Representations and Warranties.   In order to induce the
Administrative Agent and the Lenders to enter into this Agreement, the Borrower
represents and warrants to the Administrative Agent and the Lenders as follows:


(a)        The
representations and warranties made by the Borrower in Article VI
of the Credit Agreement and in each of the other Loan Documents to which it is
a party are true and correct in all material respects on and as of the date
hereof, except to the extent that such representations and warranties expressly
relate to an earlier date;


(b)        The
Persons appearing as Guarantors on the signature pages to this Agreement
constitute all Persons who are required to be Guarantors pursuant to the terms
of the Credit Agreement and the other Loan Documents, including without
limitation all Persons who became Subsidiaries or were otherwise required to
become Guarantors after the Closing Date, and each of such Persons has become
and remains a party to the Guaranty as a Guarantor;


(c)        This
Agreement has been duly authorized, executed and delivered by the Borrower and
the Guarantors party hereto and constitutes a legal, valid and binding
obligation of such parties; and


(d)        No
Default or Event of Default has occurred and is continuing.


5.          Entire Agreement.   This Agreement, together with all
the Loan Documents (collectively, the “Relevant Documents”), sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relating to such subject matter. No promise, condition, representation
or warranty, express or implied, not set forth in the Relevant Documents shall
bind any party hereto, and no such party has relied on any such promise,
condition, representation or warranty. Each of the parties hereto acknowledges
that, except as otherwise expressly stated in the Relevant Documents, no
representations, warranties or commitments, express or implied, have been made
by any party to the other in relation to the subject matter hereof or thereof. None
of the terms or conditions of this Agreement may be changed, modified, waived
or canceled orally or otherwise, except in writing and in accordance with Section 9.02 of the Credit Agreement.


6.          Full Force and Effect of Agreement.   Except as hereby
specifically amended, modified or supplemented, the Credit Agreement and all
other Loan Documents are hereby confirmed and ratified in all respects and
shall be and remain in full force and effect according to their respective
terms.


7.          Counterparts.   This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original as against
any party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. Delivery of an executed counterpart of
a signature page of this Agreement by telecopy or electronic delivery
(including by .pdf) shall be effective as delivery of a manually executed
counterpart of this Agreement.


8.          Governing Law.   This Agreement shall in all respects be
governed by, and construed in accordance with, the laws of the State of New
York applicable to contracts executed and to be performed 



 2
 









entirely within such
State, and shall be further subject to the provisions of Sections
11.14 and 11.15 of the
Credit Agreement.


9.          Enforceability.   Should any one or more of the
provisions of this Agreement be determined to be illegal or unenforceable as to
one or more of the parties hereto, all other provisions nevertheless shall
remain effective and binding on the parties hereto.


10.        References.   All references in any of the Loan
Documents to the “Credit Agreement” or the “Agreement” shall mean the Credit
Agreement, as amended hereby.


11.        Successors and Assigns.   This
Agreement shall be binding upon and inure to the benefit of the Borrower, the
Administrative Agent and each of the Guarantors and Lenders, and their
respective successors, legal representatives, and assignees to the extent such
assignees are permitted assignees as provided in Section 11.06
of the Credit Agreement.


[Signature
pages follow.]



 3















IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.




	
   

  	
  BORROWER:

  
	
   

  	
  MUELLER
  WATER PRODUCTS, INC.

  
	
   

  	
  By:

  	
  /s/ WALTER A. SMITH

  
	
   

  	
  Name:  Walter
  A. Smith

  
	
   

  	
  Title:   Senior Vice President and Treasurer

  






 



 4
 









GUARANTORS:


ANVIL 1, LLC

ANVIL 2, LLC

ANVIL INTERNATIONAL, LP


	
  By:  Anvil I, LLC, its General Partner

  



ANVILSTAR, LLC

FAST FABRICATORS, LLC

HENRY PRATT COMPANY, LLC

HENRY PRATT INTERNATIONAL, LLC

HERSEY METERS CO., LLC

HUNT INDUSTRIES, LLC

HYDRO GATE, LLC

JAMES JONES COMPANY, LLC

J.B. SMITH MFG CO., LLC

MCO 1, LLC

MCO 2, LLC

MILLIKEN VALVE, LLC

MUELLER CO. LTD.


	
  By:  MCO 1, LLC, its General Partner

  



 


MUELLER
FINANCIAL SERVICES, LLC

MUELLER GROUP, LLC

MUELLER INTERNATIONAL, INC.  

MUELLER INTERNATIONAL, L.L.C.

MUELLER INTERNATIONAL FINANCE, INC.

MUELLER INTERNATIONAL FINANCE, L.L.C.

MUELLER SERVICE CALIFORNIA, INC.

MUELLER SERVICE CO., LLC

UNITED STATES PIPE AND FOUNDRY COMPANY, LLC


	
  By:

  	
  /s/ WALTER A.
  SMITH

  	
   

  
	
  Name: Walter A. Smith

  	
   

  
	
  Title:   Vice President

  	
   

  
	
  MUELLER GROUP  CO-ISSUER, INC.

  	
   

  
	
  By:

  	
  /s/ WALTER A. SMITH

  	
   

  
	
  Name: Walter A. Smith

  	
   

  
	
  Title: President

  	
   

  
				



 


ADMINISTRATIVE
AGENT:


BANK  OF AMERICA,
N.A.


	
  By:

  	
  /s/ W. THOMAS BARNETT

  	
   

  
	
  Name:  W.
  Thomas Barnett

  	
   

  
	
  Title:  Senior Vice President

  	
   

  



 



 5














EXHIBIT A




 





Published Deal CUSIP
Number:                                      


Published Revolver CUSIP
Number:                               


Published Term Loan A
CUSIP Number:                       


Published Term Loan B CUSIP Number:                        


AMENDED &
RESTATED CREDIT AGREEMENT


Dated as of May 24,
2007

among


MUELLER WATER PRODUCTS, INC.,


as the Borrower,


MUELLER GROUP, LLC,


as the prior borrower (for
the purposes of Section 1.01(i) only)


BANK OF AMERICA, N.A.,


as Administrative
Agent, Swing Line Lender,


an L/C Issuer and a
Lender,


JPMORGAN CHASE BANK, N.A.,


as Syndication Agent, an
L/C Issuer and a Lender,


CITICORP USA, INC.,

CALYON NEW YORK BRANCH,


and


SUNTRUST BANK,


as Co-Documentation Agents
and as Lenders


and


The Other Lenders Party
Hereto


BANC OF AMERICA SECURITIES LLC,


and


J.P. MORGAN 
SECURITIES INC.


as




Joint Lead Arrangers and Joint Book Managers


 



















TABLE
OF CONTENTS




	
  Section

  	
   

  	
   

  	
   

  	
   

  	
  Page

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  ARTICLE I.

  DEFINITIONS AND ACCOUNTING TERMS

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.01

  	
   

  	
   

  	
  Amendment and Restatement; Existing Borrower
  Assignment

  	
   

  	
   

  	
  A-5

  	
   

  	
   

  
	
   

  	
  1.02

  	
   

  	
   

  	
  Defined Terms

  	
   

  	
   

  	
  A-8

  	
   

  	
   

  
	
   

  	
  1.03

  	
   

  	
   

  	
  Other Interpretive Provisions

  	
   

  	
   

  	
  A-37

  	
   

  	
   

  
	
   

  	
  1.04

  	
   

  	
   

  	
  Accounting Terms

  	
   

  	
   

  	
  A-38

  	
   

  	
   

  
	
   

  	
  1.05

  	
   

  	
   

  	
  Rounding

  	
   

  	
   

  	
  A-39

  	
   

  	
   

  
	
   

  	
  1.06

  	
   

  	
   

  	
  Exchange Rates; Currency Equivalents

  	
   

  	
   

  	
  A-39

  	
   

  	
   

  
	
   

  	
  1.07

  	
   

  	
   

  	
  Additional Alternative Currencies

  	
   

  	
   

  	
  A-39

  	
   

  	
   

  
	
   

  	
  1.08

  	
   

  	
   

  	
  Change of Currency

  	
   

  	
   

  	
  A-40

  	
   

  	
   

  
	
   

  	
  1.09

  	
   

  	
   

  	
  Times of Day

  	
   

  	
   

  	
  A-40

  	
   

  	
   

  
	
   

  	
  1.10

  	
   

  	
   

  	
  Letter of Credit Amounts

  	
   

  	
   

  	
  A-40

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  ARTICLE II.

  THE COMMITMENTS AND CREDIT EXTENSIONS

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.01

  	
   

  	
   

  	
  Term Loans

  	
   

  	
   

  	
  A-41

  	
   

  	
   

  
	
   

  	
  2.02

  	
   

  	
   

  	
  Revolving Loans

  	
   

  	
   

  	
  A-42

  	
   

  	
   

  
	
   

  	
  2.03

  	
   

  	
   

  	
  Borrowings, Conversions and Continuations of Committed
  Loans

  	
   

  	
   

  	
  A-42

  	
   

  	
   

  
	
   

  	
  2.04

  	
   

  	
   

  	
  Letters of Credit and Bankers’ Acceptances

  	
   

  	
   

  	
  A-44

  	
   

  	
   

  
	
   

  	
  2.05

  	
   

  	
   

  	
  Swing Line Loans

  	
   

  	
   

  	
  A-53

  	
   

  	
   

  
	
   

  	
  2.06

  	
   

  	
   

  	
  Prepayments

  	
   

  	
   

  	
  A-55

  	
   

  	
   

  
	
   

  	
  2.07

  	
   

  	
   

  	
  Termination or Reduction of Commitments

  	
   

  	
   

  	
  A-57

  	
   

  	
   

  
	
   

  	
  2.08

  	
   

  	
   

  	
  Repayment of Loans.

  	
   

  	
   

  	
  A-57

  	
   

  	
   

  
	
   

  	
  2.09

  	
   

  	
   

  	
  Interest

  	
   

  	
   

  	
  A-58

  	
   

  	
   

  
	
   

  	
  2.10

  	
   

  	
   

  	
  Fees

  	
   

  	
   

  	
  A-58

  	
   

  	
   

  
	
   

  	
  2.11

  	
   

  	
   

  	
  Computation of Interest and Fees; Retroactive
  Adjustments of Applicable Rate

  	
   

  	
   

  	
  A-59

  	
   

  	
   

  
	
   

  	
  2.12

  	
   

  	
   

  	
  Evidence of Debt

  	
   

  	
   

  	
  A-59

  	
   

  	
   

  
	
   

  	
  2.13

  	
   

  	
   

  	
  Payments Generally; Administrative Agent’s Clawback

  	
   

  	
   

  	
  A-60

  	
   

  	
   

  
	
   

  	
  2.14

  	
   

  	
   

  	
  Sharing of Payments by Lenders

  	
   

  	
   

  	
  A-62

  	
   

  	
   

  
	
   

  	
  2.15

  	
   

  	
   

  	
  Increase in Term Loan Facilities

  	
   

  	
   

  	
  A-62

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  ARTICLE III.

  SECURITY

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.01

  	
   

  	
   

  	
  Security

  	
   

  	
   

  	
  A-63

  	
   

  	
   

  
	
   

  	
  3.02

  	
   

  	
   

  	
  Further Assurances

  	
   

  	
   

  	
  A-64

  	
   

  	
   

  
	
   

  	
  3.03

  	
   

  	
   

  	
  Information Regarding Collateral

  	
   

  	
   

  	
  A-65

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  ARTICLE IV.

  TAXES, YIELD PROTECTION AND ILLEGALITY

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.01

  	
   

  	
   

  	
  Taxes

  	
   

  	
   

  	
  A-66

  	
   

  	
   

  
	
   

  	
  4.02

  	
   

  	
   

  	
  Illegality

  	
   

  	
   

  	
  A-67

  	
   

  	
   

  
	
   

  	
  4.03

  	
   

  	
   

  	
  Inability to Determine Rates

  	
   

  	
   

  	
  A-68

  	
   

  	
   

  
	
   

  	
  4.04

  	
   

  	
   

  	
  Increased Costs; Reserves on Eurocurrency Rate Loans

  	
   

  	
   

  	
  A-68

  	
   

  	
   

  
	
   

  	
  4.05

  	
   

  	
   

  	
  Compensation for Losses

  	
   

  	
   

  	
  A-69

  	
   

  	
   

  
	
   

  	
  4.06

  	
   

  	
   

  	
  Mitigation Obligations; Replacement of Lenders

  	
   

  	
   

  	
  A-70

  	
   

  	
   

  
	
   

  	
  4.07

  	
   

  	
   

  	
  Survival

  	
   

  	
   

  	
  A-70

  	
   

  	
   

  
												







 A-1
 









 




	
  

  	
   

  	
   

  	
   

  	
  ARTICLE V.

  CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.01

  	
   

  	
   

  	
  Conditions of Initial
  Credit Extension

  	
   

  	
   

  	
  A-70

  	
   

  	
   

  
	
   

  	
  5.02

  	
   

  	
   

  	
  Conditions to all Credit
  Extensions

  	
   

  	
   

  	
  A-73

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  ARTICLE VI.

  REPRESENTATIONS AND WARRANTIES

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.01

  	
   

  	
   

  	
  Existence,
  Qualification and Power; Compliance with Laws

  	
   

  	
   

  	
  A-73

  	
   

  	
   

  
	
   

  	
  6.02

  	
   

  	
   

  	
  Authorization; No
  Contravention

  	
   

  	
   

  	
  A-74

  	
   

  	
   

  
	
   

  	
  6.03

  	
   

  	
   

  	
  Governmental
  Authorization; Other Consents

  	
   

  	
   

  	
  A-74

  	
   

  	
   

  
	
   

  	
  6.04

  	
   

  	
   

  	
  Binding Effect

  	
   

  	
   

  	
  A-74

  	
   

  	
   

  
	
   

  	
  6.05

  	
   

  	
   

  	
  Financial Statements; No
  Material Adverse Effect

  	
   

  	
   

  	
  A-74

  	
   

  	
   

  
	
   

  	
  6.06

  	
   

  	
   

  	
  Litigation

  	
   

  	
   

  	
  A-75

  	
   

  	
   

  
	
   

  	
  6.07

  	
   

  	
   

  	
  No Default

  	
   

  	
   

  	
  A-75

  	
   

  	
   

  
	
   

  	
  6.08

  	
   

  	
   

  	
  Ownership of Property;
  Liens

  	
   

  	
   

  	
  A-75

  	
   

  	
   

  
	
   

  	
  6.09

  	
   

  	
   

  	
  Environmental Compliance

  	
   

  	
   

  	
  A-75

  	
   

  	
   

  
	
   

  	
  6.10

  	
   

  	
   

  	
  Insurance

  	
   

  	
   

  	
  A-75

  	
   

  	
   

  
	
   

  	
  6.11

  	
   

  	
   

  	
  Taxes

  	
   

  	
   

  	
  A-75

  	
   

  	
   

  
	
   

  	
  6.12

  	
   

  	
   

  	
  ERISA Compliance

  	
   

  	
   

  	
  A-75

  	
   

  	
   

  
	
   

  	
  6.13

  	
   

  	
   

  	
  Subsidiaries; Equity
  Interests

  	
   

  	
   

  	
  A-76

  	
   

  	
   

  
	
   

  	
  6.14

  	
   

  	
   

  	
  Margin Regulations;
  Investment Company Act

  	
   

  	
   

  	
  A-76

  	
   

  	
   

  
	
   

  	
  6.15

  	
   

  	
   

  	
  Disclosure

  	
   

  	
   

  	
  A-77

  	
   

  	
   

  
	
   

  	
  6.16

  	
   

  	
   

  	
  Compliance with Laws

  	
   

  	
   

  	
  A-77

  	
   

  	
   

  
	
   

  	
  6.17

  	
   

  	
   

  	
  Intellectual Property;
  Licenses, Etc. 

  	
   

  	
   

  	
  A-77

  	
   

  	
   

  
	
   

  	
  6.18

  	
   

  	
   

  	
  Senior Indebtedness

  	
   

  	
   

  	
  A-77

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  ARTICLE VII.

  AFFIRMATIVE COVENANTS

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.01

  	
   

  	
   

  	
  Financial
  Statements

  	
   

  	
   

  	
  A-77

  	
   

  	
   

  
	
   

  	
  7.02

  	
   

  	
   

  	
  Certificates; Other
  Information

  	
   

  	
   

  	
  A-78

  	
   

  	
   

  
	
   

  	
  7.03

  	
   

  	
   

  	
  Notices

  	
   

  	
   

  	
  A-80

  	
   

  	
   

  
	
   

  	
  7.04

  	
   

  	
   

  	
  Payment of Obligations

  	
   

  	
   

  	
  A-80

  	
   

  	
   

  
	
   

  	
  7.05

  	
   

  	
   

  	
  Preservation of
  Existence, Etc. 

  	
   

  	
   

  	
  A-80

  	
   

  	
   

  
	
   

  	
  7.06

  	
   

  	
   

  	
  Maintenance of
  Properties

  	
   

  	
   

  	
  A-80

  	
   

  	
   

  
	
   

  	
  7.07

  	
   

  	
   

  	
  Maintenance of Insurance

  	
   

  	
   

  	
  A-81

  	
   

  	
   

  
	
   

  	
  7.08

  	
   

  	
   

  	
  Compliance with Laws

  	
   

  	
   

  	
  A-81

  	
   

  	
   

  
	
   

  	
  7.09

  	
   

  	
   

  	
  Books and Records

  	
   

  	
   

  	
  A-81

  	
   

  	
   

  
	
   

  	
  7.10

  	
   

  	
   

  	
  Inspection Rights

  	
   

  	
   

  	
  A-81

  	
   

  	
   

  
	
   

  	
  7.11

  	
   

  	
   

  	
  Use of Proceeds

  	
   

  	
   

  	
  A-81

  	
   

  	
   

  
	
   

  	
  7.12

  	
   

  	
   

  	
  New Subsidiaries,
  Pledgors and Real Property

  	
   

  	
   

  	
  A-81

  	
   

  	
   

  
	
   

  	
  7.13

  	
   

  	
   

  	
  Compliance with ERISA

  	
   

  	
   

  	
  A-83

  	
   

  	
   

  
	
   

  	
  7.14

  	
   

  	
   

  	
  Further Assurances

  	
   

  	
   

  	
  A-83

  	
   

  	
   

  
	
   

  	
  7.15

  	
   

  	
   

  	
  Unrestricted
  Subsidiaries

  	
   

  	
   

  	
  A-83

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  ARTICLE VIII.

  NEGATIVE COVENANTS

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.01

  	
   

  	
   

  	
  Liens

  	
   

  	
   

  	
  A-85

  	
   

  	
   

  
	
   

  	
  8.02

  	
   

  	
   

  	
  Investments

  	
   

  	
   

  	
  A-86

  	
   

  	
   

  
	
   

  	
  8.03

  	
   

  	
   

  	
  Indebtedness

  	
   

  	
   

  	
  A-88

  	
   

  	
   

  
	
   

  	
  8.04

  	
   

  	
   

  	
  Fundamental Changes

  	
   

  	
   

  	
  A-89

  	
   

  	
   

  







 A-2
 









 




	
  

  	
  8.05

  	
   

  	
   

  	
  Dispositions

  	
   

  	
   

  	
  A-90

  	
   

  	
   

  
	
   

  	
  8.06

  	
   

  	
   

  	
  Restricted Payments

  	
   

  	
   

  	
  A-91

  	
   

  	
   

  
	
   

  	
  8.07

  	
   

  	
   

  	
  Change in Nature of Business

  	
   

  	
   

  	
  A-91

  	
   

  	
   

  
	
   

  	
  8.08

  	
   

  	
   

  	
  Transactions with Affiliates

  	
   

  	
   

  	
  A-92

  	
   

  	
   

  
	
   

  	
  8.09

  	
   

  	
   

  	
  Burdensome Agreements

  	
   

  	
   

  	
  A-92

  	
   

  	
   

  
	
   

  	
  8.10

  	
   

  	
   

  	
  Use of Proceeds

  	
   

  	
   

  	
  A-93

  	
   

  	
   

  
	
   

  	
  8.11

  	
   

  	
   

  	
  Prepayment of Indebtedness; Amendment to Material
  Agreements

  	
   

  	
   

  	
  A-93

  	
   

  	
   

  
	
   

  	
  8.12

  	
   

  	
   

  	
  Financial Covenants

  	
   

  	
   

  	
  A-93

  	
   

  	
   

  
	
   

  	
  8.13

  	
   

  	
   

  	
  Acquisitions

  	
   

  	
   

  	
  A-94

  	
   

  	
   

  
	
   

  	
  8.14

  	
   

  	
   

  	
  Creation of New Subsidiaries

  	
   

  	
   

  	
  A-94

  	
   

  	
   

  
	
   

  	
  8.15

  	
   

  	
   

  	
  Securities of Subsidiaries

  	
   

  	
   

  	
  A-94

  	
   

  	
   

  
	
   

  	
  8.16

  	
   

  	
   

  	
  Sale and Leaseback

  	
   

  	
   

  	
  A-94

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  ARTICLE IX.

  EVENTS OF DEFAULT AND REMEDIES

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.01

  	
   

  	
   

  	
  Events of Default

  	
   

  	
   

  	
  A-94

  	
   

  	
   

  
	
   

  	
  9.02

  	
   

  	
   

  	
  Remedies Upon Event of Default

  	
   

  	
   

  	
  A-96

  	
   

  	
   

  
	
   

  	
  9.03

  	
   

  	
   

  	
  Application of Funds

  	
   

  	
   

  	
  A-97

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  ARTICLE X.

  ADMINISTRATIVE AGENT

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.01

  	
   

  	
   

  	
  Appointment and Authority

  	
   

  	
   

  	
  A-98

  	
   

  	
   

  
	
   

  	
  10.02

  	
   

  	
   

  	
  Rights as a Lender

  	
   

  	
   

  	
  A-98

  	
   

  	
   

  
	
   

  	
  10.03

  	
   

  	
   

  	
  Exculpatory Provisions

  	
   

  	
   

  	
  A-98

  	
   

  	
   

  
	
   

  	
  10.04

  	
   

  	
   

  	
  Reliance by Administrative Agent

  	
   

  	
   

  	
  A-99

  	
   

  	
   

  
	
   

  	
  10.05

  	
   

  	
   

  	
  Delegation of Duties

  	
   

  	
   

  	
  A-99

  	
   

  	
   

  
	
   

  	
  10.06

  	
   

  	
   

  	
  Resignation of Administrative Agent

  	
   

  	
   

  	
  A-99

  	
   

  	
   

  
	
   

  	
  10.07

  	
   

  	
   

  	
  Non-Reliance on Administrative Agent and Other
  Lenders

  	
   

  	
   

  	
  A-100

  	
   

  	
   

  
	
   

  	
  10.08

  	
   

  	
   

  	
  No Other Duties, Etc. 

  	
   

  	
   

  	
  A-100

  	
   

  	
   

  
	
   

  	
  10.09

  	
   

  	
   

  	
  Administrative Agent May File Proofs of Claim

  	
   

  	
   

  	
  A-100

  	
   

  	
   

  
	
   

  	
  10.10

  	
   

  	
   

  	
  Collateral and Guaranty Matters

  	
   

  	
   

  	
  A-101

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  ARTICLE XI.

  MISCELLANEOUS

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.01

  	
   

  	
   

  	
  Amendments, Etc. 

  	
   

  	
   

  	
  A-102

  	
   

  	
   

  
	
   

  	
  11.02

  	
   

  	
   

  	
  Notices; Effectiveness; Electronic Communication

  	
   

  	
   

  	
  A-104

  	
   

  	
   

  
	
   

  	
  11.03

  	
   

  	
   

  	
  No Waiver; Cumulative Remedies

  	
   

  	
   

  	
  A-105

  	
   

  	
   

  
	
   

  	
  11.04

  	
   

  	
   

  	
  Expenses; Indemnity; Damage Waiver

  	
   

  	
   

  	
  A-106

  	
   

  	
   

  
	
   

  	
  11.05

  	
   

  	
   

  	
  Payments Set Aside

  	
   

  	
   

  	
  A-107

  	
   

  	
   

  
	
   

  	
  11.06

  	
   

  	
   

  	
  Successors and Assigns

  	
   

  	
   

  	
  A-108

  	
   

  	
   

  
	
   

  	
  11.07

  	
   

  	
   

  	
  Treatment of Certain Information; Confidentiality

  	
   

  	
   

  	
  A-111

  	
   

  	
   

  
	
   

  	
  11.08

  	
   

  	
   

  	
  Right of Setoff

  	
   

  	
   

  	
  A-112

  	
   

  	
   

  
	
   

  	
  11.09

  	
   

  	
   

  	
  Interest Rate Limitation

  	
   

  	
   

  	
  A-112

  	
   

  	
   

  
	
   

  	
  11.10

  	
   

  	
   

  	
  Counterparts; Integration; Effectiveness

  	
   

  	
   

  	
  A-113

  	
   

  	
   

  
	
   

  	
  11.11

  	
   

  	
   

  	
  Survival of Representations and Warranties

  	
   

  	
   

  	
  A-113

  	
   

  	
   

  
	
   

  	
  11.12

  	
   

  	
   

  	
  Severability

  	
   

  	
   

  	
  A-113

  	
   

  	
   

  
	
   

  	
  11.13

  	
   

  	
   

  	
  Replacement of Lenders

  	
   

  	
   

  	
  A-113

  	
   

  	
   

  
	
   

  	
  11.14

  	
   

  	
   

  	
  Governing Law; Jurisdiction; Etc. 

  	
   

  	
   

  	
  A-114

  	
   

  	
   

  
	
   

  	
  11.15

  	
   

  	
   

  	
  Waiver of Jury Trial

  	
   

  	
   

  	
  A-114

  	
   

  	
   

  
	
   

  	
  11.16

  	
   

  	
   

  	
  USA PATRIOT Act Notice

  	
   

  	
   

  	
  A-115

  	
   

  	
   

  
	
   

  	
  11.17

  	
   

  	
   

  	
  No Advisory or Fiduciary Responsibility

  	
   

  	
   

  	
  A-115

  	
   

  	
   

  
	
   

  	
  SIGNATURES

  	
   

  	
   

  	
  A-116

  	
   

  	
   

  






 



 A-3
 









 


	
  SCHEDULES

  	
   

  	
   

  
	
  1.01

  	
   

  	
  Mandatory Cost Formulae

  
	
  1.02(a)

  	
   

  	
  Unrestricted Subsidiaries

  
	
  2.01

  	
   

  	
  Commitments and Pro Rata Shares

  
	
  3.01

  	
   

  	
  Mortgaged Real Property

  
	
  3.03

  	
   

  	
  Information Regarding Collateral

  
	
  6.06

  	
   

  	
  Litigation

  
	
  6.09

  	
   

  	
  Environmental Matters

  
	
  6.11

  	
   

  	
  Proposed Tax Assessments

  
	
  6.12

  	
   

  	
  ERISA Compliance

  
	
  6.13(a)

  	
   

  	
  Subsidiaries

  
	
  6.13(b)

  	
   

  	
  Other Equity Investments

  
	
  8.01

  	
   

  	
  Existing Liens

  
	
  8.02

  	
   

  	
  Existing Investments

  
	
  8.03

  	
   

  	
  Existing Indebtedness

  
	
  11.02

  	
   

  	
  Administrative Agent’s Office; Certain Addresses for
  Notices

  



 


	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
  Form of

  
	
  A-1

  	
   

  	
  Revolving Loan Notice

  
	
  A-2

  	
   

  	
  Term Loan Interest Rate Selection Notice

  
	
  B

  	
   

  	
  Swing Line Loan Notice

  
	
  C-1

  	
   

  	
  Term Loan A Note

  
	
  C-2

  	
   

  	
  Revolving Loan Note

  
	
  C-3

  	
   

  	
  Term Loan B Note

  
	
  D

  	
   

  	
  Compliance Certificate

  
	
  E

  	
   

  	
  Assignment and Assumption

  
	
  F

  	
   

  	
  Guaranty Agreement

  
	
  G

  	
   

  	
  Security Agreement

  
	
  H

  	
   

  	
  Pledge Agreement

  
	
  I

  	
   

  	
  Mortgage

  



 



 A-4















AMENDED AND
RESTATED CREDIT AGREEMENT


This AMENDED AND
RESTATED  CREDIT AGREEMENT
is entered into as of May 24, 2007,  among MUELLER WATER
PRODUCTS, INC., a Delaware corporation (“MWA”
or the “Borrower”),
each lender from time to time party hereto (collectively, the “Lenders” and
individually, a “Lender”),
BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and an L/C
Issuer, and, solely for purposes of the Amendment and Restatement (defined
below) and the assignment and assumption in Section 1.01,
MUELLER GROUP, LLC, a Delaware limited
liability company.


Preliminary
Statements


A.         Mueller
Group (defined in Section 1.02 below, and in
such capacity the “Existing Borrower”), a
wholly-owned subsidiary of the Borrower, the lenders party thereto (the “Existing Lenders”) and Bank of America,
as administrative agent under the Existing Agreement (defined in Section 1.02 below) (in such capacity, the “Existing Agent”), are parties to
that certain Credit Agreement, dated as of October 3, 2005, pursuant to which
certain of such lenders originally agreed to provide Mueller Group with (a) a
revolving credit facility of up to $145,000,000, including a letter of credit
and bankers’ acceptance subfacility and a swing line subfacility, and (b) a
term loan facility in an initial principal amount of $1,050,000,000.


B.         The
Borrower and Mueller Group have requested that the Existing Agreement be
amended and restated, subject to the conditions set forth herein, in order to,
among other things, (a) add an additional term loan facility, (b) extend
the maturity date of both the revolving credit facility and the existing term
loan facility, (c) increase the maximum aggregate principal amount of the
revolving credit facility from the existing $145,000,000 to $300,000,000 (subject
to an increase option provided in this Agreement), (d) reduce the existing
term loan facility, as the Term Loan B Facility hereunder, from the existing $789,732,412 principal amount to an
aggregate principal amount as of the date hereof of $565,000,000 (subject to an
increase option provided in this Agreement), (e) create a new Term Loan A
Facility hereunder in an initial aggregate principal amount of $150,000,000
(subject to an increase option provided in this Agreement), (f) make the
Borrower, the owner of all issued and outstanding Equity Interests (defined in Section 1.02 below) of Mueller Group, the borrower
under this Agreement, and make Mueller Group a Guarantor (defined in Section 1.02 below) of the Borrower’s obligations
hereunder pursuant to the Guaranty (defined in Section 1.02
below), and (g) make certain other amendments to the Existing Agreement
(the “Amendment and Restatement”).


C.         The
parties hereto are willing to amend and restate the Existing Agreement, to
consent to the assignment to the Borrower of the Existing Borrower’s
obligations under the Existing Agreement pursuant to Section 1.01(i),
and to make and continue to make certain term loan, revolving credit and letter
of credit and bankers’ acceptance facilities available to the Borrower upon the
terms and conditions set forth herein.


In consideration of the
mutual covenants and agreements herein contained, the parties hereto covenant
and agree as follows:


ARTICLE
I.


DEFINITIONS AND
ACCOUNTING TERMS


1.01     Amendment
and Restatement; Existing Borrower Assignment.   In order to facilitate the Amendment and Restatement
and otherwise to effectuate the desires of the Borrower and Mueller Group, the
Borrower, the Administrative Agent and the Lenders agree as follows:


(a)        As of
the Closing Date (immediately prior to the effectiveness of this Agreement) (i) the
Aggregate Revolving Credit Commitments under (and as defined in) the Existing
Agreement is 



 A-5
 









$145,000,000, (ii) the
principal amount of the Revolving Loans (as defined in the Existing Agreement)
outstanding under the Existing Agreement is $0, (iii) there are no Swing
Line Loans (as defined in the Existing Agreement) outstanding under the
Existing Agreement, (iv) the aggregate amount of L/C—BA Obligations (as
defined in the Existing Agreement) outstanding under the Existing Agreement is
$33,350,916.87, and (v) the Outstanding Amount (as defined in the Existing
Agreement) of the Term Loan (as defined in the Existing Agreement) is
$789,732,412.00.


(b)        Each
Existing Lender with an outstanding Revolving Credit Commitment (as defined in
the Existing Agreement) or portion of the Term Loan (as defined in the Existing
Agreement) under the Existing Agreement that either executes and delivers a
signature page to this Agreement or commits to a portion of the Revolving
Credit Commitment or either Term Loan hereunder prior to the Closing Date and
consummates such commitment pursuant to a post-Closing Date assignment (each, a
“Continuing Lender”) will be deemed
to have agreed to the Amendment and Restatement pursuant to the terms of this
Agreement upon the effectiveness of this Agreement. Each Existing Lender that
does not constitute a Continuing Lender (each, a “Departing
Lender”) will be deemed not to have agreed to the Amendment and
Restatement, and will be subject to the mandatory assignment provisions of Section 11.13 of the Existing Agreement upon the
effectiveness of this Agreement.


(c)        Simultaneously
with the Closing Date, the parties hereby agree that (i) the Revolving
Credit Commitments of each Revolving Lender and its Pro Rata Revolving Share
shall be as set forth in Schedule 2.01,
the Revolving Loans outstanding under (and as defined in) the Existing
Agreement shall be reallocated in accordance with such Revolving Credit
Commitments set forth on Schedule 2.01,
and the requisite assignments shall be deemed to be made in such amounts among
the Revolving Lenders and from each Revolving Lender to each other Revolving
Lender, with the same force and effect as if such assignments were evidenced by
applicable Assignments and Assumptions (as defined in the Existing Agreement)
under the Existing Agreement, and (ii) the letter of credit subfacility
under the Existing Agreement shall continue hereunder in the amount of the
Letter of Credit—BA Sublimit as provided for herein and all letters of credit
existing under the Existing Agreement (the “Existing Letters of Credit”)
shall continue as Letters of Credit hereunder.


(d)        Simultaneously
with the Closing Date, the parties hereby agree that the Outstanding Amount of
the Term Loan B, and each Term Loan B Lender’s
Pro Rata Term B Share thereof, shall be as set forth in Schedule 2.01, and the portion of the Outstanding Amount of
the Term Loan  B  held
by each Term Loan B Lender shall be reallocated in accordance with the Pro Rata
Term B Shares of the Term Loan B Lenders set forth in Schedule
2.01, and the requisite assignments shall be deemed to be made in
such amounts among the Term Loan B Lenders and from each Term Loan B Lender to
each other Term Loan B Lender (and, if necessary, to Term Loan B Lenders,
including Bank of America, from Existing Lenders under the Existing Agreement
who elect not to become Term Loan B Lenders under this Agreement or whose
participation in this Agreement as Term Loan B Lenders is expected to be
consummated pursuant to a post-closing assignment with Bank of America), with
the same force and effect as if such assignments were evidenced by applicable
Assignments and Acceptances (as defined in the Existing Agreement) under the
Existing Agreement, but without the payment of any related assignment fee.


(e)        Simultaneously
with the Closing Date, the parties hereby agree that the Outstanding Amount of
the Term Loan A, and each Term Loan A Lender’s
Pro Rata Term A Share thereof, shall be as set forth in Schedule 2.01.


(f)         Notwithstanding
anything to the contrary in the Existing Agreement or in this Agreement, no
other documents or instruments, including any Assignment and Assumption, shall
be, or shall be required to be, executed in connection with the assignments set
forth in this Section 1.01 (all of which
requirements are hereby waived), and such assignments shall be deemed to be
made with all applicable 



 A-6
 









representations,
warranties and covenants as if evidenced by an Assignment and Acceptance. On
the Closing Date, the applicable Lenders shall make full cash settlement with
one another, and with any Departing Lender under the Existing Agreement, either
directly or through the Administrative Agent, as the Administrative Agent may
direct or approve, with respect to all assignments, reallocations and other
changes in Revolving Credit Commitments and the portion of the Outstanding
Amount of the Term Loan B allocable to each Term Loan B Lender, such that
after giving effect to such settlements the Revolving Credit Commitment of each
Revolving Lender, the Pro Rata Term A Share of each Term A Lender and the Pro
Rata Term B Share of each Term Loan B Lender shall be as set forth on Schedule 2.01.


(g)        The
parties hereto hereby agree that upon the effectiveness of this Agreement, the
terms and provisions of the Existing Agreement which in any manner govern or
evidence the Obligations, the obligations of the Borrower, the Existing
Borrower and the other Loan Parties, the rights and interests of the
Administrative Agent and the Lenders and any terms, conditions or matters
related to any thereof, shall be and hereby are amended and restated in their
entirety by the terms, conditions and provisions of this Agreement, and the
terms and provisions of the Existing Agreement, except as otherwise expressly provided
herein or therein, shall be superseded by this Agreement.


(h)        Notwithstanding
this Amendment and Restatement of the Existing Agreement, including anything in
this Section 1.01, and in any related
Loan Documents (as defined in the Existing Agreement and referred to herein,
individually or collectively, as the “Existing Loan Documents”),
but subject to the assignment from the Existing Borrower to the Borrower set
forth in Section 1.01(i) below, (i) all
of the indebtedness, liabilities and obligations owing by any Person under the
Existing Agreement and other Existing Loan Documents shall continue as
Obligations hereunder, and (ii) each of this Agreement and the Notes and
any other Loan Document (as defined herein) that is amended and restated in
connection with this Agreement is given as a substitution of, and not as a
payment of, the indebtedness, liabilities and obligations of the Borrower, the
Existing Borrower or any other Loan Party under the Existing Agreement or any
Existing Loan Document and neither the execution and delivery of such documents
nor the consummation of any other transaction contemplated hereunder is
intended to constitute a novation of the Existing Agreement or of any of the
other Existing Loan Documents or any obligations thereunder. Upon the
effectiveness of this Agreement, unless otherwise agreed to and arranged by the
Administrative Agent, all Revolving Loans (as defined in the Existing
Agreement) and Term Loans (as defined in the Existing Agreement) owing and
outstanding under the Existing Agreement shall be converted to and, subject to
conversion after the Closing Date, shall continue as Base Rate Loans hereunder
and shall constitute advances hereunder, and all Letters of Credit (as defined
in the Existing Agreement) and Bankers’ Acceptances (as defined in the Existing
Agreement) outstanding under the Existing Agreement and any of the Existing
Loan Documents, if any, shall continue as Letters of Credit and Bankers’
Acceptances, as applicable, hereunder; provided that
if any Eurodollar Rate Loans (as defined in the Existing Agreement) are
converted to Base Rate Loans pursuant to this Section 1.01(h) on
a day other than the last day of an Interest Period, the Borrower shall
compensate the Lenders holding such Eurodollar Rate Loans (as defined in the
Existing Agreement) pursuant to Section 4.05
for any loss, cost or expense arising from such conversion on the Closing Date
of Eurodollar Rate Loans under (and as defined in) the Existing Agreement to
Base Rate Loans hereunder; provided further,
that on and after the Closing Date, the Applicable Rate and fees applicable to
Loans, Letters of Credit and Bankers’ Acceptances hereunder shall apply without
regard to any margins or fees otherwise applicable thereto under the Existing
Agreement prior to the Closing Date (which fees and margins applicable prior to
the Closing Date shall either be paid in full on the Closing Date or at the
first date for payment of interest and fees under this Agreement, as determined
by the Borrowers and the Administrative Agent).


(i)         Pursuant
to the request of the Existing Borrower and the Borrower, in connection with
this Amendment and Restatement the Existing Borrower desires to assign to the
Borrower, and the Borrower 



 A-7
 









desires to accept such
assignment from the Existing Borrower, all of the Existing Borrower’s rights
and obligations under the Existing Agreement (as amended and restated by this
Amendment and Restatement) so that, after giving effect thereto, the Borrower
shall be the sole borrower under this Agreement, and the Existing Borrower
shall become a Guarantor hereunder pursuant to its execution and delivery of
the Guaranty. The assignment provided for in this Section 1.01(i) is
hereby agreed and approved by each Lender party hereto, and shall be deemed to
have occurred simultaneously with the occurrence of the Closing Date with
respect to this Agreement, without any further action by any party hereto. The
Existing Borrower has executed this Agreement for the sole purpose of
effectuating the assignment provided in this Section 1.01(i),
and shall have no further rights or obligations under this Agreement (but
without limitation to its rights and obligations contained in any other Loan
Document to which it is a party).


1.02     Defined
Terms.   As used in this Agreement, the following
terms shall have the meanings set forth below:


“Acceptance
Credit” means a commercial Letter of Credit in which the L/C
Issuer engages with the beneficiary of such Letter of Credit to accept a time
draft, and shall include those Existing Letters of Credit which are Acceptance
Credits.


“Acceptance
Documents” means such general acceptance agreements,
applications, certificates and other documents as the L/C Issuer may require in
connection with the creation of Bankers’ Acceptances.


“Account” means
any account (as that term is defined in Section 9-102(a)(2)(i) and
(ii) of the UCC) of the Borrower or any Subsidiary arising from the sale
or lease of goods or the rendering of services.


“Acquisition”
means the acquisition of (a) a controlling equity or other ownership
interest in another Person (including the purchase of an option, warrant or
convertible or similar type security to acquire such a controlling interest at
the time it becomes exercisable by the holder thereof), whether by purchase of
such equity or other ownership interest or upon exercise of an option or
warrant for, or conversion of securities into, such equity or other ownership
interest, or (b) assets of another Person which constitute all or
substantially all of the assets of such Person or of a line or lines of
business conducted by such Person.


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


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


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


“Affiliate”
means, with respect to any Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified.


“Aggregate
Commitments” means, as at any date of determination thereof, the
sum of (a) the Aggregate Revolving Credit Commitments at such date, plus (b) the Outstanding Amount with respect to the
Term Loan Facilities at such date.


“Aggregate
Credit Exposures” means, as at any date of determination
thereof, the sum of (a) the unused portion of the Aggregate Revolving
Credit Commitments then in effect, plus (b) the Total Outstandings at such
time.



 A-8
 









“Aggregate Revolving Credit
Commitments” means, as at any date of determination thereof, the
sum of all Revolving Credit Commitments of all Lenders at such date.


“Agreement” means this
Amended and Restated Credit Agreement.


“Alternative
Currency” means each of Euro, Sterling, Yen, Canadian Dollar and
each other currency (other than Dollars) that is approved in accordance with Section 1.07.


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


“Alternative
Currency Sublimit” means an amount equal to the lesser of the
Aggregate Revolving Credit Commitments and $25,000,000. The Alternative
Currency Sublimit is part of, and not in addition to, the Aggregate Revolving
Credit Commitments; provided that
the Alternative Currency Sublimit shall not be in effect for Revolving Loans
until the Fronting Structure Amendment is effective.


“Amendment
and Restatement” has the meaning specified in the Preliminary
Statements above.


“Applicable Rate”
means, from time to time,


(a)        with respect to Segments of the Term Loan B (i) that are
Eurocurrency Rate Loans, 1.75%, and (ii) that are Base Rate Loans, 0.75%;
and


(b)        with respect to the Commitment Fee,
Revolving Loans, Term Loan A, Swing Line Loans and Letter of Credit—BA Fees,
the following percentages per annum, based upon the Consolidated Leverage Ratio
as set forth in the most recent Compliance Certificate received by the
Administrative Agent pursuant to Section 7.02(b):




	
   

  	
   

  	
   

  	
   

  	
  Revolving Loans, Segments of the

  Term Loan A, Swing Line Loans

  and Letter of Credit—BA Fees

  	
   

  	
   

  	
   

  
	
  Pricing

  Level

  	
   

  	
  Consolidated Leverage Ratio

  	
   

  	
  Base Rate

  Loans

  	
   

  	
  Eurocurrency Rate

  Loans and Letter

  of Credit—BA Fees

  	
   

  	
  Commitment Fee

  	
   

  
	
   

  	
  1

  	
   

  	
   

  	
  Greater than or
  equal to 3.50 to 1.00

  	
   

  	
   

  	
  0.75

  	
  %

  	
   

  	
   

  	
  1.75

  	
  %

  	
   

  	
   

  	
  0.500

  	
  %

  	
   

  
	
   

  	
  2

  	
   

  	
   

  	
  Less than 3.50 to 1.00 but greater than or equal to
  2.50 to 1.00

  	
   

  	
   

  	
  0.50

  	
  %

  	
   

  	
   

  	
  1.50

  	
  %

  	
   

  	
   

  	
  0.375

  	
  %

  	
   

  
	
   

  	
  3

  	
   

  	
   

  	
  Less than 2.50 to 1.00 but greater than or equal to
  1.50 to 1.00

  	
   

  	
   

  	
  0.25

  	
  %

  	
   

  	
   

  	
  1.25

  	
  %

  	
   

  	
   

  	
  0.250

  	
  %

  	
   

  
	
   

  	
  4

  	
   

  	
   

  	
  Less than 1.50 to
  1.00

  	
   

  	
   

  	
  0.00

  	
  %

  	
   

  	
   

  	
  1.00

  	
  %

  	
   

  	
   

  	
  0.200

  	
  %

  	
   

  






 


Any increase or decrease in the Applicable Rate with
respect to Revolving Loans, the Term Loan A (including Segments), Swing Line
Loans and Letter of Credit—BA Fees resulting from a change in the Consolidated
Leverage Ratio shall become effective as of the first Business Day immediately
following the date a Compliance Certificate is delivered pursuant to Section 7.02(b); provided, however, that if a Compliance Certificate is not delivered
when due in accordance with such Section, then Pricing Level 1 shall apply
thereto as of the first Business Day after the date on which such Compliance
Certificate was required to have been delivered until the Business Day
following the date the appropriate certificate is so delivered. Subject to the
proviso in the preceding sentence, from the Closing Date to the Business Day
following the date the Compliance Certificate for the fiscal period ending June 30,
2007 is delivered or is required to be delivered (whichever shall first occur),
the Applicable Rate with respect to the Commitment Fee, Revolving Loans, Term
Loan A, Swing Line Loans and Letter of Credit—BA Fees shall be Pricing Level 2.



 A-9
 









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


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


“Arrangers”
means BAS and JPMS, each in its capacity as a joint lead arranger and joint
book manager.


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


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


“Assumed
Indebtedness” means Indebtedness of a Person which is (a) in
existence at the time such Person becomes a Restricted Subsidiary of the
Borrower or (b) is assumed in connection with an Investment in or
acquisition of such Person, and has not been incurred or created by such Person
in connection with, or in anticipation or contemplation of, such Person
becoming a Restricted Subsidiary of the Borrower.


“Attributable
Indebtedness” means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear
on a balance sheet of such Person prepared as of such date in accordance with
GAAP, and (b) in respect of any Synthetic Lease Obligation, the
capitalized amount of the remaining lease payments under the relevant lease
that would appear on a balance sheet of such Person prepared as of such date in
accordance with GAAP if such lease were accounted for as a capital lease.


“Audited
Financial Statements” means the audited consolidated balance
sheet of the Borrower and its Subsidiaries for the fiscal year ended September 30,
2006, and the related consolidated statements of income or operations, retained
earnings and cash flows for such fiscal year of the Borrower and its
Subsidiaries, including the notes thereto.


“Auditor”
has the meaning specified in Section 7.01(a).


“Availability
Period” means the period from and including the Closing Date to
the earliest of (a) the Revolving Credit Maturity Date, (b) the date
of termination of the Aggregate Revolving Credit Commitments pursuant to Section 2.07, and (c) the date of termination of
the commitment of each Lender to make Loans and of the obligation of the L/C
Issuer to make L/C- BA Credit Extensions pursuant to Section 9.02.


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


“Bank
of America Fee Letter” means the letter agreement, dated as of May 3,
2007, among the Borrower, the Administrative Agent and BAS.


“Bankers’
Acceptance” or “BA” means a time draft, drawn by the beneficiary under
an Acceptance Credit and accepted by the L/C Issuer upon presentation of
documents by the beneficiary of an Acceptance Credit pursuant to Section 2.04 hereof, in the standard form for bankers’
acceptances of the L/C Issuer.



 A-10















“BAS”
means Banc of America Securities LLC.


“Base
Rate” means for any day a fluctuating rate per annum equal to
the higher of (a) the Federal Funds Rate plus
1/2 of 1% and (b) the rate of interest in effect for such day as publicly
announced from time to time by Bank of America as its “prime rate.”  The “prime rate” is a rate set by Bank of
America based upon various factors including Bank of America’s costs and
desired return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in such rate announced by Bank of America shall
take effect at the opening of business on the day specified in the public
announcement of such change.


“Base
Rate Loan” means a Loan (including a Segment) that bears
interest based on the Base Rate. All Base Rate Loans shall be denominated in
Dollars.


“Base
Rate Revolving Loan” means a Revolving Loan that is a Base Rate
Loan.


“Base
Rate Segment” means a Segment bearing interest or to bear
interest at the Base Rate.


“Borrower”
has the meaning specified in the introductory paragraph hereto.


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


“Borrowing”
means any of (a) the advance of the Term Loans pursuant to Section 2.01, (b) a Revolving Borrowing, or (c) a
Swing Line Borrowing, as the context may require.


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


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


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


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


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


“Canadian  Dollar” and “CAN$” mean lawful money of Canada.


“Cash
Collateralize” has the meaning specified in Section 2.04(g).



 A-11
 









“Cash Equivalents”
means any of the following types of property, to the extent owned by the
Borrower or any of its Restricted Subsidiaries free and clear of all Liens
(other than Liens created under the Security Instruments):


(a)        cash,
denominated in U.S. Dollars or in a currency other than U.S. Dollars that is
freely transferable or convertible into U.S. Dollars;


(b)        readily
marketable direct obligations of the government of the United States or any
agency or instrumentality thereof, or obligations the timely payment of
principal and interest on which are fully and unconditionally guaranteed by the
government of the United States or any state or municipality thereof, in each
case so long as such obligation has an investment grade rating by S&P and
Moody’s;


(c)        commercial
paper rated at least P-1 (or the then equivalent grade) by Moody’s and A-1
(or the then equivalent grade) by S&P, or carrying an equivalent rating by
a nationally recognized rating agency if at any time neither Moody’s and
S&P shall be rating such obligations;  provided that up to 25% of the aggregate amount of
Investments in Cash Equivalents pursuant to this subpart (c) of the
definition thereof may be in commercial paper that is rated (I) at least P-1
(or the then equivalent grade) by Moody’s and at least A-2 (or the then
equivalent grade) by S&P, or (II) at least P-2 (or the then
equivalent grade) by Moody’s and at least A-1 (or the then equivalent
grade) by S&P;


(d)        insured
certificates of deposit or bankers’ acceptances of, or time deposits with any
Lender or with any commercial bank that (i) is a member of the Federal
Reserve System, (ii) issues (or the parent of which issues) commercial
paper rated as described in the first portion of clause (c) above (without
regard to the proviso), (iii) is organized under the laws of the United
States or of any state thereof and (iv) has combined capital and surplus
of at least $250,000,000, provided that
no more than 25% of the aggregate amount of Investments in Cash Equivalents
pursuant to this subpart (d) of the definition thereof may be in such
items with a maturity longer than one year;


(e)        readily
marketable general obligations of any corporation organized under the laws of
any state of the United States of America, payable in the United States of
America, expressed to mature not later than twelve months following the date of
issuance thereof and rated A or better by S&P or A2 or better by Moody’s;


(f)         readily
marketable shares of investment companies or money market funds that, in each
case, invest solely in the foregoing Investments described in clauses (a) through
(e) above; and


(g)        in the
case of any Restricted Subsidiary of the Borrower organized or having its
principal place of business outside the United States, investments denominated
in the currency of the jurisdiction in which such Subsidiary is organized or
has its principal place of business which are similar to the items specified in
clauses (a) through (f) above.


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


“Change of Control”
means an event or series of events by which:


(a)        any “person”
or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act, but excluding any employee benefit plan of the Borrower or its
Restricted Subsidiaries, and any person or entity acting in its capacity as
trustee, agent or other fiduciary or administrator of any such plan) becomes
the “beneficial owner” (as defined in Rules 13d-3 and 



 A-12
 









13d-5 under the
Exchange Act, except that a person or group shall be deemed to have “beneficial
ownership” of all securities that such person or group has the right to acquire
(such right, an “option right”), whether such
right is exercisable immediately or only after the passage of time), directly
or indirectly, of 35% or more of the Voting Securities of the Borrower on a
fully-diluted basis (and taking into account all such securities that such
person or group has the right to acquire pursuant to any option right); or


(b)        during
any period of 24 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of the Borrower cease to be
composed of individuals (i) who were members of that board or equivalent
governing body on the first day of such period, (ii) whose election or
nomination to that board or equivalent governing body was approved by
individuals referred to in clause (i) above constituting at the time of
such election or nomination at least a majority of that board or equivalent
governing body or (iii) whose election or nomination to that board or
other equivalent governing body was approved by individuals referred to in
clauses (i) and (ii) above constituting at the time of such election
or nomination at least a majority of that board or equivalent governing body
(excluding, in the case of both clause (ii) and clause (iii), any
individual whose initial nomination for, or assumption of office as, a member
of that board or equivalent governing body occurs as a result of an actual or
threatened solicitation of proxies or consents for the election or removal of
one or more directors by any person or group other than a solicitation for the
election of one or more directors by or on behalf of the board of directors).


“Closing
Date” means the first date all the conditions precedent in Section 5.01 are satisfied or waived in accordance with
Section 11.01 (or, in the case of Section 5.01(b), waived by the Person entitled to
receive the applicable payment).


“Code”
means the Internal Revenue Code of 1986.


“Collateral”
means, collectively, all personal and real property of the Borrower, any
Restricted Subsidiary or any other Person in which the Administrative Agent or
any Lender is granted a Lien under any Security Instrument as security for all
or any portion of the Obligations or any other obligation arising under any
Loan Document.


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


“Compliance
Certificate” means a certificate substantially in the form of Exhibit D.


“Consolidated
Capital Expenditures” means, with respect to the Borrower and
its Restricted Subsidiaries on a consolidated basis, for any period the sum of
(without duplication) all expenditures (whether paid in cash or accrued as
liabilities) by the Borrower or any Restricted Subsidiary during such period
for items that would be classified as “property, plant or equipment” or
comparable items on the consolidated balance sheet of the Borrower and its
Restricted Subsidiaries, including without limitation all transactional costs
incurred in connection with such expenditures provided the same have been
capitalized; provided, that  Consolidated Capital Expenditures shall
exclude any portion of the purchase price of an Acquisition permitted by Section 8.13 which is accounted for as a capital
expenditure.


“Consolidated
Cash Interest Charges” means, for any period, for the Borrower
and its Restricted Subsidiaries on a consolidated basis, that portion of
Consolidated Interest Charges that is either paid or required to be paid in
cash during such period, but excluding prepayment or similar premiums paid in
connection with any prepayment, repurchase or redemption of Consolidated Funded
Indebtedness.



 A-13
 









“Consolidated
EBITDA” means, for any period and in each case without duplication
(including any duplication with any item excluded in calculating Consolidated
Net Income), with respect to the Borrower and its Restricted Subsidiaries, on a
consolidated basis determined in accordance with GAAP, an amount equal to:




	
  

  	
   

  	
  (a)

  	
   

  	
  Consolidated Net Income for such period,

  
	
  plus

  	
   

  	
  (b)

  	
   

  	
  Consolidated Interest Charges for such period, to
  the extent deducted in computing Consolidated Net Income,

  
	
  plus

  	
   

  	
  (c)

  	
   

  	
  the provision for federal, state, local and foreign
  income taxes payable for such period, to the extent deducted in computing
  Consolidated Net Income,

  
	
  plus

  	
   

  	
  (d)

  	
   

  	
  depreciation and depletion expense, to the extent
  deducted in computing Consolidated Net Income,

  
	
  plus

  	
   

  	
  (e)

  	
   

  	
  amortization expense, to the extent deducted in computing
  Consolidated Net Income,

  
	
  plus

  	
   

  	
  (f)

  	
   

  	
  all other non-cash charges or expenses (excluding
  any non-cash charges representing an accrual of, or reserve for, cash charges
  to be paid within the next twelve months) to the extent deducted in computing
  Consolidated Net Income,

  
	
  plus

  	
   

  	
  (g)

  	
   

  	
  any amounts deducted in determining Consolidated Net
  Income representing mark-to-market losses related to interest rate hedges
  that must be recognized currently in net income under Financial Accounting
  Standards Board Statement 133 (to the extent not included in Consolidated
  Interest Charges),

  
	
  minus

  	
   

  	
  (h)

  	
   

  	
  any amounts added in determining Consolidated Net
  Income representing mark-to-market gains related to interest rate hedges that must be recognized
  currently in net income under Financial
  Accounting Standards Board Statement 133 (to the extent not included in
  Consolidated Interest Charges),

  
	
  minus

  	
   

  	
  (i)

  	
   

  	
  all other non-cash income or gains added in
  determining Consolidated Net Income,

  
	
  plus

  	
   

  	
  (j)

  	
   

  	
  expenses incurred in connection with the
  Transactions to the extent deducted in computing Consolidated Net Income,

  
	
  plus

  	
   

  	
  (k)

  	
   

  	
  any amounts deducted in
  determining Consolidated Net
  Income representing cash restructuring costs, or cash costs reasonably
  determined by the Borrower to be associated with facility or product line
  closures, consolidation or rationalization, not to exceed
  (i) $50,000,000 of such costs in the aggregate incurred from the Closing
  Date through the last day of the fiscal year of the Borrower ending September 30,
  2008, (ii) $25,000,000 of such costs in the aggregate incurred during
  the fiscal year of the Borrower ending September 30, 2009,
  (iii) $25,000,000 of such costs in the aggregate incurred during the
  fiscal year of the Borrower ending September 30, 2010, (iv) $25,000,000
  of such costs in the aggregate incurred during the fiscal year of the
  Borrower ending September 30, 2011, and (v) $25,000,000 of such
  costs in the aggregate incurred during the fiscal year of the Borrower ending
  September 30, 2012, provided that any amount not utilized in any fiscal
  year of the Borrower may be carried forward for use in any succeeding fiscal
  year until the Term Loan B Maturity Date, and

  
	
  plus

  	
   

  	
  (l)

  	
   

  	
  for any Four-Quarter period including a fiscal
  quarter of the Borrower ending on or prior to December 31, 2006, up to
  75% of any amounts deducted in
  determining Consolidated Net
  Income representing costs associated with compliance with
  Sarbanes-Oxley;

  






 



 A-14
 









provided,
however, Consolidated EBITDA shall be
decreased by the amount of any cash expenditures in such period related to
non-cash charges added back to Consolidated Net Income in computing
Consolidated EBITDA during any prior periods.


“Consolidated Funded Indebtedness”
means, as of any date of determination, for the Borrower and its Restricted
Subsidiaries on a consolidated basis, the sum of (a) the outstanding
principal amount of all obligations, whether current or long-term, for borrowed
money (including Obligations hereunder) and all obligations evidenced by bonds,
debentures, notes, loan agreements or other similar instruments, (b) all
purchase money Indebtedness, (c) all direct obligations arising under
standby and commercial letters of credit (excluding the undrawn amount
thereof), bankers’ acceptances (including all BAs hereunder), bank guaranties
(excluding the amounts available thereunder as to which demand for payment has
not yet been made), surety bonds (excluding the amounts available thereunder as
to which demand for payment has not yet been made) and similar instruments, (d) all
obligations in respect of the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business), (e) Attributable
Indebtedness in respect of capital leases and Synthetic Lease Obligations and
all Receivables Facility Outstandings, (f) without duplication, all
Guarantees with respect to outstanding Indebtedness of the types specified in
clauses (a) through (e) above of Persons other than the Borrower or
any Restricted Subsidiary, and (g) all Indebtedness of the types referred
to in clauses (a) through (f) above of any partnership or joint
venture (other than a joint venture that is itself a corporation or limited
liability company) in which the Borrower or a Restricted Subsidiary is a
general partner or joint venturer, to the extent such Indebtedness is recourse
to the Borrower or such Restricted Subsidiary.


“Consolidated Interest Charge
Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated EBITDA for the Four-Quarter Period ending on
such date to (b) Consolidated Cash Interest Charges for such period.


“Consolidated Interest Charges”
means, for any period, for the Borrower and its Restricted Subsidiaries on a
consolidated basis, the sum of the following (without duplication), in each
case net of interest income earned (without duplication) on cash balances or
under Swap Contracts hedging against, or otherwise entered into to manage risks
relating to, fluctuations in interest rates to the extent such interest income
is included in the calculation of Consolidated Net Income: (a) all
interest, (b) the portion of rent expense of the Borrower and its
Restricted Subsidiaries with respect to such period under capital leases that
is treated as interest in accordance with GAAP, and (c) any amounts
included in interest expense in respect of Permitted Receivables Transactions
(or, if any such Permitted Receivables Transaction is an “off-balance sheet”
transaction under GAAP, any amounts that would have been so included in respect
of such Permitted Receivables Transaction if it were an “on-balance sheet”
transaction under GAAP).


“Consolidated Leverage Ratio”
means, as of any date of determination, the ratio of (a) Consolidated
Funded Indebtedness as of such date less Cash Equivalents of the Borrower and
the Restricted Subsidiaries on a consolidated basis as of such date to (b) Consolidated
EBITDA for the Four-Quarter Period most recently ended for which the Borrower
has delivered financial statements pursuant to Section 7.01(a) or
(b).


“Consolidated Net Income” means, for any
period, for the Borrower and its Restricted Subsidiaries on a consolidated
basis, the net income after taxation of the Borrower and its Restricted
Subsidiaries for that period excluding (a) net losses or gains realized in
connection with (i) any sale, lease, conveyance or other disposition of
any asset (other than in the ordinary course of business), or (ii) repayment,
repurchase or redemption of Indebtedness, and (b) extraordinary or
nonrecurring income (or expense), including, any compensation charge incurred
in connection with the Transactions; provided that
the net income or loss of any Person that is not a Restricted Subsidiary or
that is accounted for by the equity method of accounting shall be included only
to the extent of the amount of dividends or distributions paid to the Borrower
or a Restricted Subsidiary in cash.



 A-15
 









“Consolidated
Senior Secured Indebtedness” means, as of any date of
determination, all Consolidated Funded Indebtedness that, as of such date, is
secured by any Lien on any asset or property of the Borrower or any of its
Restricted Subsidiaries.


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


“Control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have
meanings correlative thereto. Without limiting the generality of the foregoing,
a Person shall be deemed to be Controlled by another Person if such other
Person possesses, directly or indirectly, power to vote 10% or more of the
securities having ordinary voting power for the election of directors, managing
general partners or the equivalent.


“Core
Business” means any material line of business conducted by the
Borrower and its Subsidiaries as of the Closing Date and any business
reasonably related or incidental thereto.


“Cost
of Acquisition” means, with respect to any Acquisition, as at
the date of entering into any agreement therefor, the sum of the following
(without duplication):  (a) the
amount of any cash and fair market value of other property (excluding the value
of any capital stock, warrants or options to acquire capital stock of the
Borrower or any Restricted Subsidiary and the unpaid principal amount of any
debt instrument) given as consideration, (b) the amount (determined by
using the face amount or the amount payable at maturity, whichever is greater)
of any Indebtedness incurred, assumed or acquired by the Borrower or any Restricted Subsidiary in connection
with such Acquisition, (c) all additional purchase price amounts in the
form of earnouts and other contingent obligations that are to be paid in cash
and that should be recorded on the financial statements of the Borrower and its
Restricted Subsidiaries in
accordance with GAAP, (d) all amounts paid in cash in respect of covenants
not to compete, and consulting agreements that should be recorded on financial
statements of the Borrower and its Restricted
Subsidiaries in accordance with GAAP, (e) the aggregate fair market value
of all other consideration given by the Borrower or any Restricted Subsidiary in connection with such Acquisition (but
excluding the value of any capital stock, warrants or options to acquire
capital stock of the Borrower or any Restricted
Subsidiary), and (f) out-of-pocket transaction costs for the services and
expenses of attorneys, accountants and other consultants incurred in effecting
such transaction, and other similar transaction costs so incurred and
capitalized in accordance with GAAP.


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


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


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


“Default
Rate” means an interest rate equal to (a) the Base Rate
plus (b) the Applicable Rate with respect to Base Rate Loans plus (c) 2%
per annum; provided, however,
that (i) with respect to a Eurocurrency Rate Loan, until the end of the
Interest Period during which the Default Rate is first applicable, the Default
Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate and any Mandatory Cost) otherwise applicable to such
Eurocurrency Rate Loan plus 2% per annum, and thereafter as set forth in the
portion of this sentence preceding this proviso, and (ii) with respect to 



 A-16
 









Letter of Credit—BA Fees,
the Default Rate shall equal the Letter of Credit—BA Fee, then in effect plus
2% per annum, in each case to the fullest extent permitted by applicable Laws.


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


“Direct
Foreign Subsidiary” means a Foreign Subsidiary a majority of
whose Voting Securities, or a majority of whose Subsidiary Securities, are
owned by the Borrower or a Domestic Subsidiary.


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


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


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


“Domestic
Subsidiary” means any Subsidiary that is organized under the
laws of any political subdivision of the United States (but excluding any
territory or possession thereof).


“Eligible
Assignee” means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a
natural person) approved by (i) the Administrative Agent and, in the case
of any assignment of a Revolving Credit Commitment, the L/C Issuer and the
Swing Line Lender, and (ii) unless an Event of Default has occurred and is
continuing, the Borrower (each such approval not to be unreasonably withheld or
delayed); provided that notwithstanding the
foregoing, “Eligible Assignee” shall not include the Borrower or any of the
Borrower’s Affiliates or Subsidiaries.


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


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


“Environmental
Laws” means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems.


“Environmental
Liability” means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation,
fines, penalties or indemnities), of the Borrower, any other Loan Party or any
of their respective Subsidiaries directly or indirectly resulting from or based
upon (a) violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release
or threatened release of any Hazardous Materials into the environment or (e) any
contract, 



 A-17
 









agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.


“Equity
Interests” means, with respect to any Person, all of the shares
of capital stock of (or other ownership or profit interests in) such Person,
all of the warrants, options or other rights for the purchase or acquisition
from such Person of shares of capital stock of (or other ownership or profit
interests in) such Person, all of the 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
acquisition from such Person of such shares (or such other interests), and all
of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting,
and whether or not such shares, warrants, options, rights or other interests
are outstanding on any date of determination.


“ERISA”
means the Employee Retirement Income Security Act of 1974.


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


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


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


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



 A-18
 









“Eurocurrency
Rate Loan” means a Loan (including a Segment) that bears
interest at a rate based on the Eurocurrency Rate. All Revolving Loans
denominated in an Alternative Currency must be Eurocurrency Rate Loans.


“Eurocurrency Rate
Revolving Loans” means a Revolving Loan that bears interest at a
rate based on the Eurocurrency Rate.


“Eurocurrency
Rate Segment” means a Segment bearing interest or to bear
interest at the Eurocurrency Rate.


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


“Exchange
Act” means the Securities Exchange Act of 1934 and the
regulations promulgated thereunder.


“Excluded
Taxes” means, with respect to the Administrative Agent, any
Lender, the L/C Issuer or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) taxes imposed
on or measured by its overall net income (however denominated), and franchise
taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any
political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable Lending Office is located, (b) any branch
profits taxes imposed by the United States or any similar tax imposed by any
other jurisdiction in which the Borrower is located and (c) in the case of
a Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 11.13), any withholding tax
that is imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party hereto (or designates a new Lending Office) or is
attributable to such Foreign Lender’s failure or inability (other than as a
result of a Change in Law) to comply with Section 4.01(e),
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new Lending Office (or assignment),
to receive additional amounts from the Borrower with respect to such
withholding tax pursuant to Section 4.01(a).


“Existing Agent”
has the meaning specified in the Preliminary Statements above.


“Existing Borrower
Notes”
means the 143¤4%
senior discount notes due 2014 issued by the Borrower in an aggregate initial
accreted value not in excess of $110,100,000 pursuant to the Existing Borrower
Notes Indenture, as in effect on the Closing Date and, thereafter, as amended,
supplemented, amended and restated or otherwise modified.


“Existing
Borrower Notes Indenture” means the Indenture, dated as of
April 29, 2004, among the Borrower and Law Debenture Trust Company of New
York, as trustee, as in effect on the Closing Date and, thereafter, as amended,
supplemented, amended and restated or otherwise modified.


“Existing Borrower Notes
Tender” means the offer to purchase and solicitation of consents
made by the Borrower pursuant to the Offers to Purchase for the Existing
Borrower Notes, and the termination, defeasance or other satisfaction in full
in a manner satisfactory to the Administrative Agent of all or substantially
all of the Existing Borrower Notes.


“Existing
Agreement” means that certain Credit Agreement dated as of
October 3, 2005, among Mueller Group, Bank of America, as administrative
agent, and a syndicate of lenders, as amended through the Closing Date, which
Existing Agreement is being amended and restated hereby.


“Existing Letters of Credit” has the meaning specified in Section 1.01(c).


“Existing
Subordinated Notes” means the 10% senior subordinated notes due 2012
co-issued by Mueller Group and Mueller Group Co-Issuer, Inc. in an
aggregate principal amount of $315,000,000, as in effect on the Closing Date
and, thereafter, as amended, supplemented, amended and restated or otherwise
modified in accordance with the terms of this Agreement.



 A-19















“Existing
Subordinated Notes
Indenture” means the Indenture, dated as of April 23, 2004,
among Mueller Group, Mueller Group Co-Issuer, Inc., the guarantors
signatory thereto, and Law Debenture Trust Company of New York, as trustee, as
in effect on the Closing Date and, thereafter, as amended, supplemented,
amended and restated or otherwise modified in accordance with the terms of this
Agreement.


“Existing
Subordinated Notes Tender” means the offer to purchase and
solicitation of consents made by the Borrower pursuant to the Offers to
Purchase and consummated on or prior to the Closing Date, for the Existing
Subordinated Notes, and the termination, defeasance or other satisfaction in
full in a manner satisfactory to the Administrative Agent of all or substantially
all of the Existing Subordinated Notes.


“Facility Termination Date”
means the date as of which all of the following shall have occurred:  (a) the Borrower shall have permanently
terminated the Revolving Credit Facility and each of the Term Loan Facilities
by final payment in full of all Outstanding Amounts, together with all accrued
and unpaid interest and fees thereon, other than (i) the undrawn portion
of Letters of Credit, (ii) the aggregate face amount of all outstanding
Bankers’ Acceptances and (iii) all fees relating to any Letters of Credit
accruing after such date (which fees shall be payable solely for the account of
the L/C Issuer and shall be computed (based on interest rates and the
Applicable Rate then in effect) on such undrawn amounts to the respective
expiry dates of the Letters of Credit), in each case as have been fully Cash
Collateralized or as to which other arrangements with respect thereto
satisfactory to the Administrative Agent and the L/C Issuer shall have been
made, (b) the Aggregate Revolving Credit Commitments, if any, shall have
terminated or expired, (c) the obligations and liabilities of the Borrower
and each other Loan Party under all Related Credit Arrangements shall have been
fully, finally and irrevocably paid and satisfied in full and the Related
Credit Arrangements shall have expired or been terminated, or other
arrangements satisfactory to the counterparties shall have been made with
respect thereto, and (d) each Guarantor shall have fully, finally and
irrevocably paid and satisfied in full its respective obligations and
liabilities arising under the Loan Documents, (except for future obligations
consisting of continuing indemnities and other contingent Obligations of the
Borrower or any Loan Party that may be owing to the Administrative Agent or any
of its Related Parties or any Lender pursuant to the Loan Documents and
expressly survive termination of this Agreement).


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


“Foreign Benefit Law”
means any Law of any foreign nation or any province, state, territory,
protectorate or other political subdivision thereof regulating, relating to, or
imposing liability or standards of conduct concerning, any Plan or Pension
Plan.


“Foreign Investment Basket
Utilization” means, on any date, the sum of (a) the
aggregate Investments in any Foreign Subsidiaries that are Restricted
Subsidiaries pursuant to Section 8.02(k),
plus, (b) the outstanding aggregate
principal amount of Indebtedness incurred by Foreign Subsidiaries pursuant to Section 8.03(i)(ii) plus (c) the aggregate
Costs of Acquisition with respect to all Acquisitions of Foreign Subsidiaries
occurring after the Closing Date, without duplication for any portion thereof
made with the proceeds of Investments described in clause (a) or
Indebtedness described in clause (b) of this definition.



 A-20
 









“Foreign Lender” means
any Lender that is organized under the laws of a jurisdiction other than that
in which the Borrower is resident for tax purposes. For purposes of this
definition, the United States, each State thereof and the District of Columbia
shall be deemed to constitute a single jurisdiction.


“Foreign Pension Plan”
means any plan, arrangement, understanding or scheme maintained by the Borrower
or any Subsidiary that provides retirement or deferred compensation benefits
covering any employee or former employee and which is administered under any
Foreign Benefit Law or regulated by any Governmental Authority other than the
United States.


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


“Four-Quarter Period”
means a period of four full consecutive fiscal quarters of the Borrower and its
Subsidiaries, taken together as one accounting period.


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


“Fronting
Structure Amendment” means an amendment to this Agreement, to be
entered into after the Closing Date by and among the Borrower, the Guarantors
and the Administrative Agent, but without any further action by the Lenders as
provided in subpart (vii) of the second proviso to Section 11.01,
for the purpose of enabling Bank of America to serve as a fronting bank for
Revolving Loans made in Alternative Currencies with respect to each Revolving
Lender that has provided notice to the Administrative Agent that it is unable
to fund Revolving Loans in one or more Alternative Currencies.


“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.


“GAAP” means generally
accepted accounting principles in the United States set forth in the opinions
and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or such other principles as may be
approved by a significant segment of the accounting profession in the United
States, that are applicable to the circumstances as of the date of
determination, consistently applied.


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


“Granting Lender” has
the meaning specified in Section 11.06(h).


“Guarantee” means, as
to any Person, any (a) any obligation, contingent or otherwise, of such
Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation payable or performable by another Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any
obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or
services for the purpose of assuring the obligee in respect of such
Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level
of income or cash flow of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, or (iv) entered into
for the purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any
Lien on any assets of such Person securing any Indebtedness or other obligation
of any other Person, whether or not such 



 A-21
 









Indebtedness
or other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien). The
amount of any Guarantee shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or portion thereof, in
respect of which such Guarantee is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by
the guaranteeing Person in good faith. The term “Guarantee” as a verb has a
corresponding meaning.


“Guarantors” means
each Subsidiary of the Borrower and each other Person that has executed and
delivered the Guaranty or a Guaranty Joinder Agreement.


“Guaranty” means that
certain Amended and Restated Guaranty Agreement dated as of the date hereof
among certain Subsidiaries of the Borrower party thereto and the Administrative
Agent (on behalf of the Lenders) substantially in the form of Exhibit F, as supplemented from time to time by the
execution and delivery of Guaranty Joinder Agreements pursuant to Section 7.12, as from time to time the same may be
otherwise supplemented or amended, modified, amended and restated or replaced.


“Guaranty Joinder Agreement” means each
Guaranty Joinder Agreement, substantially in the form thereof attached to the
Guaranty, executed and delivered by a Guarantor to the Administrative Agent
pursuant to Section 7.12, as amended, modified,
supplemented or amended and restated.


“Hazardous Materials”
means all explosive or radioactive substances or wastes and all hazardous or
toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated
biphenyls, radon gas, infectious or medical wastes and all other substances or
wastes of any nature regulated pursuant to any Environmental Law.


“Honor Date” has the
meaning set forth in Section 2.04(c).


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


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


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


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


(d)        all obligations of such Person to pay the deferred purchase
price of property or services (other than trade accounts payable in the
ordinary course of business);


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


(f)         capital leases and Synthetic Lease Obligations of such
Person and all Receivables Facility Outstandings; and


(g)        all Guarantees of such Person in respect of any of the
foregoing.


For all purposes hereof,
the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which such Person is a general
partner or a joint venturer, to the extent such Indebtedness is recourse to
such Person. The amount of any net obligation under any Swap Contract on any
date shall be deemed to be the Swap Termination Value thereof as of such date. The
amount of any capital lease or Synthetic Lease 



 A-22
 









Obligation as of any date
shall be deemed to be the amount of Attributable Indebtedness in respect
thereof as of such date.


“Indemnified Taxes”
means Taxes other than Excluded Taxes.


“Indemnitees” has the
meaning specified in Section 11.04.


“Information” has the
meaning specified in Section 11.07.


“Interest Payment Date”
means, (a) as to any Eurocurrency Rate Loan, the last day of the relevant
Interest Period, any date that such Loan is prepaid or converted, in whole or
in part, and the Revolving Credit Maturity Date, the Term Loan A Maturity Date
or the Term Loan B Maturity Date, as applicable; provided,
however, that if any Interest Period for
a Eurocurrency Rate Loan exceeds three months, the respective dates that fall
every three months after the beginning of such Interest Period shall also be
Interest Payment Dates; and (b) as to any Base Rate Loan (including a
Swing Line Loan), (i) the fifteenth (or the next Business Day after the
fifteenth, if the fifteenth is not a Business Day) of each January, April, July and
October with respect to interest accrued through the last day of each
fiscal quarter of the Borrower ending immediately prior to such date, and (ii) the
Revolving Credit Maturity Date, the Term Loan A Maturity Date or the Term Loan
B Maturity Date, as applicable, with respect to interest accrued through such
date; provided, further,
that interest accruing at the Default Rate shall be payable from time to time
upon demand of the Administrative Agent.


“Interest Period”
means, as to each Eurocurrency Rate Loan, the period commencing on the date
such Eurocurrency Rate Loan is disbursed or converted to or continued as a
Eurocurrency Rate Loan and ending, in each case, on the date one, two, three or
six or, if consented to by each applicable Lender, nine or twelve  months thereafter, as selected by the
Borrower in its Revolving Loan Notice or Term Loan Interest Rate Selection
Notice (or, in the case of any Eurocurrency Rate Loan made on the Closing Date,
such other interest period less than six months that may be approved by the
Administrative Agent); provided that:


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


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


(iii)      no Interest Period shall extend beyond (a) with
respect to Revolving Loans, the Revolving Credit Maturity Date, (b) with
respect to the Term Loan A, the date set forth in part (a) of the
definition of the Term Loan A Maturity Date, and (c) with respect to the
Term Loan B, the date set forth in part (a) of the definition of the Term
Loan B Maturity Date.


“Investment” means, as
to any Person, any direct or indirect acquisition or investment by such Person,
whether by means of (a) the purchase or other acquisition of capital stock
or other securities of another Person, (b) a loan, advance or capital
contribution to, Guarantee or assumption of debt of, or purchase or other
acquisition of any other debt or equity participation or interest in, another
Person, including any partnership or joint venture interest in such other
Person and any arrangement pursuant to which the investor Guarantees
Indebtedness of such other Person, (c) the purchase or other acquisition
(in one transaction or a series of transactions) of assets of another Person
that constitute a business unit, or (d) the purchase of land and related
infrastructure improvements. For purposes of covenant compliance, the amount of
any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment, less all
returns of principal or equity thereon (and without adjustment by reason of the
financial condition of such other Person) and shall, if made by the 



 A-23
 









transfer
or exchange of property other than cash, be deemed to have been made in an
original principal or capital amount equal to the fair market value of such
property at the time of such transfer or exchange.


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


“IRS” means the United
States Internal Revenue Service.


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


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


“Joinder Agreements”
means, collectively, Guaranty Joinder Agreements, the Pledge Joinder Agreements
and the Security Joinder Agreements.


“JPMorgan”
means JPMorgan Chase Bank, N.A.


“JPMorgan Fee Letter”
means the letter agreement, dated as of May 4, 2007, among the Borrower,
JPMorgan and JPMS.


“JPMS”
means J.P. Morgan Securities Inc.


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


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


“L/C—BA Borrowing”
means an extension of credit resulting from (a) a drawing under any Letter
of Credit (other than an Acceptance Credit) or (b) a payment of a Bankers’
Acceptance upon presentation, in each case which has not been reimbursed on the
date when made or refinanced as a Revolving Borrowing. All L/C—BA Borrowings
shall be denominated in Dollars.


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


“L/C—BA Obligations”
means, as at any date of determination, the aggregate undrawn amount of all
outstanding Letters of Credit, plus the sum of
the maximum aggregate amount which is, or at any time thereafter may become,
payable by the L/C Issuers under all then outstanding Bankers’ Acceptances,
plus the aggregate of all Unreimbursed Amounts, including all L/C—BA Borrowings.
For purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.10. For all purposes of
this Agreement, if on any date of determination a Letter of Credit has expired
by its terms but any amount may still be drawn thereunder by reason of the
operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed
to be “outstanding” in the amount so remaining available to be drawn.


“L/C Issuer” means
each of Bank of America and JPMorgan, each in its capacity as an issuer of
Letters of Credit and Bankers’ Acceptances hereunder, or any successor issuer
of Letters of Credit and 



 A-24
 









Bankers’
Acceptances hereunder. At any time there is more than one L/C Issuer, all
singular references to the L/C Issuer shall mean any L/C Issuer, either L/C
Issuer, each L/C Issuer, the L/C Issuer that has issued the applicable Letter
of Credit, or both L/C Issuers, as the context may require.


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


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


“Letter of Credit” means
any letter of credit issued hereunder, and shall include the Existing Letters
of Credit. A Letter of Credit may be a commercial letter of credit (including
an Acceptance Credit) or a standby letter of credit. Letters of Credit may be
issued in Dollars or in an Alternative Currency.


“Letter of Credit Application”
means an application and agreement for the issuance or amendment of a Letter of
Credit in the form from time to time in use by the L/C Issuer and, in the case
of any Acceptance Credit, shall include the related Acceptance Documents.


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


“Letter of Credit—BA Fees”
means, collectively or individually as the context may indicate, the fees with
respect to Letters of Credit and Bankers’ Acceptances described in Section 2.04(i).


“Letter of Credit—BA Sublimit”
means an amount equal to the lesser of (a) $50,000,000 and (b) the
Aggregate Revolving Credit Commitments. The Letter of Credit—BA Sublimit is
part of, and not in addition to, the Aggregate Revolving Credit Commitments.


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


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


“Loan Documents” means
this Agreement, each Note, the Guaranty (including each Guaranty Joinder
Agreement), each Security Instrument, each Revolving Loan Notice, each Term
Loan Interest Rate Selection Notice, each Issuer Document and each Compliance
Certificate, and all other instruments and documents heretofore or hereafter
executed or delivered to or in favor of any Lender or the Administrative Agent
in connection with the Loans made and transactions contemplated by this
Agreement.


“Loan Parties” means,
collectively, the Borrower, each Guarantor and each other Person providing
Collateral pursuant to any Security Instrument.


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


“Material Adverse Effect”
means (a) a material adverse change in, or a material adverse effect upon,
the operations, business, assets, properties, liabilities (actual or contingent),
condition (financial or otherwise) or prospects of the Borrower and its
Restricted Subsidiaries taken as a whole; (b) a material impairment of the
ability of any Loan Party to perform its obligations under any Loan Document to
which 



 A-25
 









it is a
party; or (c) a material adverse effect upon the legality, validity,
binding effect or enforceability against any Loan Party of any Loan Document to
which it is a party.


“Material Subsidiary”
means, as of any date of determination thereof, each direct or indirect
Restricted Subsidiary of the Borrower that (a) holds, owns or contributes,
as the case may be, 3% or more of the gross revenues, assets (including Equity
Interests in other Subsidiaries) or Consolidated EBITDA of the Borrower and the
Restricted Subsidiaries, on a consolidated basis (calculated as of the most
recent fiscal period with respect to which the Administrative Agent shall have
received financial statements required to be delivered pursuant to Sections 7.01(a) or (b) or if
prior to delivery of any financial statements pursuant to such Sections, then
calculated with respect to the financial statements dated as of March 31,
2007), (b) is designated by the Borrower as a Material Subsidiary, or (c) Guarantees
the Subordinated Notes or any Permitted Subordinated Debt. The Borrower shall
designate one or more Restricted Subsidiaries of the Borrower as Material
Subsidiaries if, in the absence of such designation, the aggregate gross
revenues, assets (including Equity Interests in other Subsidiaries) or
contribution to Consolidated EBITDA of all Restricted Subsidiaries of the
Borrower that are not Material Subsidiaries would exceed 3% of the gross
revenues, assets or Consolidated EBITDA (calculated as of the most recent
fiscal period with respect to which the Administrative Agent shall have
received financial statements required to be delivered pursuant to Sections 7.01(a) or (b) or if
prior to delivery of any financial statements pursuant to such Sections, then
calculated with respect to the financial statements dated as of March 31,
2007).


“Maximum
Annual Payment Amount” means (a) from the Closing Date to
the first anniversary thereof, $50,000,000, and (b) in each subsequent
year, $25,000,000 plus the amount available but not
utilized (whether pursuant to Section 8.02(o),
8.06(e) or 8.11(a)(iv))
in preceding years; provided that
the Maximum Annual Payment Amount in any single year shall not exceed
$75,000,000.


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


“Mortgage” means, individually
or collectively as the context may indicate, those mortgages, deeds of trust,
deeds to secure debt and comparable real estate Lien documents delivered prior
to, on or after the Closing Date to the Administrative Agent with respect to
any Mortgaged Fee Property, substantially in the form attached hereto as Exhibit I.


“Mortgaged Fee Property”
means, collectively, the fee interests of the Borrower or any Guarantor, as
applicable, in such real property, improvements, fixtures and other items of
real and personal property related thereto (and the products and proceeds
thereof) as may be granted to the Administrative Agent prior to or on the
Closing Date, or from time to time thereafter, in accordance with the terms of
this Agreement pursuant to a Mortgage.


“Mortgaged Property Support Documents”
shall mean, for each Mortgaged Fee Property, (a) the Title Policy
pertaining thereto, (b) such surveys and flood hazard certifications
thereof as the Administrative Agent may require prepared by recognized experts
in their respective fields selected by the Borrower and reasonably satisfactory
to the Administrative Agent provided that
if the Title Policy for any Mortgaged Fee Property does not contain a blanket
survey exception and contains survey coverage and survey related endorsements
which are reasonably acceptable to the Administrative Agent, then no survey
shall be required for such Mortgaged Fee Property, (c) as to the Mortgaged
Properties located in a flood hazard area, such flood hazard insurance as the
Administrative Agent may require, (d) such lessee’s affidavits as the
Administrative Agent may reasonably require with respect to any such property
leased to a third party, (e) such opinions of local counsel with respect
to the Mortgages, as applicable, as the Administrative Agent may reasonably
require, and (f) such other documentation as the Administrative Agent may
reasonably require, in each case as shall be in form and substance reasonably
acceptable to the Administrative Agent.



 A-26















“Mueller Group”
means Mueller Group, LLC, a Delaware limited liability company


“Multiemployer
Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of
ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been
obligated to make contributions.


“Net
Cash Proceeds” means, with respect to the sale of any asset by
the Borrower or any Restricted Subsidiary, the excess, if any, of (i) the
sum of cash and cash equivalents received in connection with such sale
(including any cash received by way of deferred payment pursuant to, or by
monetization of, a note receivable or otherwise, but only as and when so
received) over (ii) the sum of (A) the principal amount of any
Indebtedness that is secured by such asset and that is required to be repaid in
connection with the sale thereof (other than Indebtedness under the Loan
Documents and Indebtedness owing to the Borrower or any Restricted Subsidiary),
(B) the out-of-pocket expenses incurred by the Borrower or any Restricted
Subsidiary in connection with such sale, including any brokerage commissions,
underwriting fees and discount, legal fees, finder’s fees and other similar
fees and commissions, (C) taxes paid or reasonably estimated to be payable
by the Borrower or any Restricted Subsidiary in connection with the relevant
asset sale, (D) the amount of any reasonable reserve required to be
established in accordance with GAAP against liabilities (other than taxes
deducted pursuant to (C) above) to the extent such reserves are (I) associated
with the assets that are the object of such sale and (II) retained by the
Borrower or any Restricted Subsidiary, and (E) the amount of any
reasonable reserve for purchase price adjustments and retained fixed
liabilities reasonably expected to be payable by the Borrower or any Restricted
Subsidiary in connection therewith to the extent such reserves are (I) associated
with the assets that are the object of such sale and (II) retained by the
Borrower or any Restricted Subsidiary; provided that
the amount of any subsequent reduction of any reserve provided for in clause (D) or
(E) above (other than in connection with a payment in respect of such
liability) shall (X) be deemed to be Net Cash Proceeds of such asset sale
occurring on the date of such reduction, and (Y) immediately be applied to
the prepayment of Loans in accordance with Section 2.06(d);


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


“Obligations”
means all advances to, and debts, liabilities, obligations, covenants and
duties of, any Loan Party arising under any Loan Document or otherwise with
respect to any Loan, Letter of Credit or Bankers’ Acceptance, or arising under
any Related Credit Arrangement, in each case whether direct or indirect
(including those acquired by assumption), absolute or contingent, due or to
become due, now existing or hereafter arising and including interest and fees
that accrue after the commencement by or against any Loan Party or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming such
Person as the debtor in such proceeding, regardless of whether such interest
and fees are allowed claims in such proceeding.


“Offers to Purchase”
means the Offers to Purchase and Solicitations of Consents made on May 1,
2007 to the holders of the Existing Borrower Notes and the Existing
Subordinated Notes with respect to all such notes.


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



 A-27
 









“Other
Taxes” means all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any
payment made hereunder or under any other Loan Document or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.


“Outstanding
Amount” means (a) with respect to either Term Loan on any
date, the aggregate outstanding principal amount thereof after giving effect to
the Borrowing of the Term Loans on the Closing Date, and any prepayments or
repayments of either Term Loan (or any Segment) occurring on such date, (b) with
respect to Revolving Loans on any date, the Dollar Equivalent amount of the
aggregate outstanding principal amount thereof after giving effect to any
Revolving Borrowings and any prepayments or repayments of Revolving Loans
occurring on such date; (c) with respect to Swing Line Loans on any date,
the aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of Swing Line Loans occurring on such
date; and (d) with respect to any L/C—BA Obligations on any date, the
Dollar Equivalent amount of the aggregate outstanding amount of such L/C—BA
Obligations on such date after giving effect to any L/C—BA Credit Extension
occurring on such date and any other changes in the aggregate amount of the L/C—BA
Obligations as of such date, including as a result of any reimbursements of
amounts paid under Bankers’ Acceptances or outstanding unpaid drawings under
any Letters of Credit or any reductions in the maximum amount available for
drawing under Letters of Credit taking effect on such date.


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


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


“PBGC”
means the Pension Benefit Guaranty Corporation.


“Pension
Plan” means (a) any “employee pension benefit plan” (as
such term is defined in Section 3(2) of ERISA), other than a
Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained
by the Borrower or any ERISA Affiliate or to which the Borrower or any ERISA
Affiliate contributes or has an obligation to contribute, or in the case of a
multiple employer or other plan described in Section 4064(a) of
ERISA, has made contributions at any time during the immediately preceding five
plan years, and (b) any Foreign Pension Plan.


“Permitted
Receivables Transaction” means one or more trade receivables
financing transactions pursuant to which the Borrower and any of its Restricted
Subsidiaries sells Accounts and assets related thereto that are customarily
transferred with such Accounts in receivables financing transactions, or
interests therein, directly or indirectly through another Restricted Subsidiary
of the Borrower to a Receivables Co., and such Receivables Co. sells such
Accounts and related assets, or interests therein, or grants Liens in such
Accounts and related assets, or interests therein, to buyers thereof or
providers of financing based thereon, so long as (i) the aggregate principal
amount outstanding (without duplication) at any time of all such financings
does not exceed $200,000,000, (ii) such financings are subject to
customary terms and conditions or other terms and conditions reasonably
acceptable to the Administrative Agent and (iii) each such financing is
subject to a backstop facility provided by a credit support provider reasonably
acceptable to the Administrative Agent, which backstop facility has a term of
not less than 3 years from the date such backstop facility is entered into, or
otherwise has credit support acceptable to the Administrative Agent.



 A-28
 









“Permitted Subordinated Debt”
means, individually or collectively as the context may indicate, (a) the
Subordinated Notes and (b) any other unsecured subordinated notes issued
by the Borrower having terms consistent with the following: (i) subordination
in right of payment to the Obligations pursuant to terms and conditions
substantially similar to those set forth in the Subordinated Notes Indenture or
other terms and conditions acceptable to the Administrative Agent, (ii) no
scheduled payments of principal for at least one year following the Term Loan B
Maturity Date, (iii) commercially reasonable interest rates, (iv) the
absence of financial maintenance covenants, and (v) the absence of
covenants or any other terms or conditions that, taken as a whole, are more
restrictive than the covenants, terms and restrictions contained in this
Agreement and the other applicable Loan Documents; provided,
in each case that such Indebtedness is either exchanged for, or 100% of the
proceeds of such Indebtedness is used to repay, redeem or repurchase, in whole
or in part, the Subordinated Notes or other Permitted Subordinated Debt and to
pay related premiums, interest, fees, costs and expenses.


“Permitted Subordinated Debt
Documents” means all loan agreements, indentures, note purchase
agreements, promissory notes, guarantees, and other instruments and agreements
evidencing or executed in connection with Permitted Subordinated Debt, in each
case as amended, supplemented, amended and restated or otherwise modified in
accordance with Section 8.11.


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


“Plan” means (a) any
“employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Borrower or, with respect to any such plan that is
subject to section 412 of the Code or Title IV of ERISA, any ERISA Affiliate,
and (b) any Foreign Pension Plan.


“Platform” has the
meaning specified in Section 7.02.


“Pledge Agreement”
means that certain Amended and Restated Securities Pledge Agreement dated as of
the date hereof among the Borrower and one or more of the Guarantors to the
Administrative Agent for the benefit of the Secured Parties, substantially in
the form of Exhibit H, as supplemented from
time to time by the execution and delivery of Pledge Joinder Agreements
pursuant to Sections 3.01 and 7.12,
as the same may be otherwise supplemented (including by Pledge Agreement
Supplement).


“Pledge Agreement Supplement”
means the Pledge Agreement Supplement in the form affixed as an exhibit to the
Pledge Agreement.


“Pledged Interests”
means (a) the Subsidiary Securities of each of the existing or hereafter
organized or acquired Domestic Subsidiaries of the Borrower  that at any time are on Schedule I to the Pledge Agreement (or any similar schedule
serving the same purpose in the Pledge Agreement); (b) all of the
Subsidiary Securities of each of the existing or hereafter organized or
acquired Domestic Subsidiaries of the Borrower
that is a Material Subsidiary; and (c) 65% of the Voting
Securities (or if the relevant Person shall own less than 65% of such Voting Securities,
then 100% of the Voting Securities owned by such Person) and 100% of the
nonvoting Subsidiary Securities of each of the existing or hereafter organized
or acquired Direct Foreign Subsidiaries of the Borrower that is a Material
Subsidiary; provided that the Pledged Interests
shall in each case exclude the Voting Securities and Subsidiary Securities of
any Unrestricted Subsidiary.


“Pledge Joinder Agreement”
means each Pledge Joinder Agreement, substantially in the form thereof attached
to the Pledge Agreement, executed and delivered by a Guarantor to the
Administrative Agent pursuant to Section 7.12.


“Post-Closing
Agreement” means that certain Post-Closing Agreement by and
between the Borrower and the Administrative Agent dated as of the Closing Date
with respect to the satisfaction after the Closing Date of certain real
property collateral matters, including Mortgages and Mortgaged Property Support
Documents.



 A-29
 









“Pro
Rata Revolving Share” means, with respect to each Revolving
Lender at any time, a fraction (expressed as a percentage, carried out to the
ninth decimal place), the numerator of which is the amount of the Revolving
Credit Commitment of such Revolving Lender at such time and the denominator of
which is the amount of the Aggregate Revolving Credit Commitments at such time;
provided that if the Aggregate Revolving
Credit Commitments have been terminated at such time, then the Pro Rata
Revolving Share of each Revolving Lender shall be the Pro Rata Revolving Share
of such Revolving Lender immediately prior to such termination and after giving
effect to any subsequent assignments made pursuant to Section 11.06.
The initial Pro Rata Revolving Share of each Revolving Lender is set forth
opposite the name of such Revolving Lender on Schedule
2.01 or in the Assignment and Assumption pursuant to which such
Revolving Lender becomes a party hereto, as applicable.


“Pro
Rata Term A Share” means, with respect to each Term Loan A
Lender, the percentage (carried out to the ninth decimal place) of the
principal amount of the Term Loan A funded by such Term Loan A Lender. The
initial Pro Rata Term A Share of each Term Loan A Lender is set forth opposite
the name of such Term Loan A Lender on Schedule 2.01
or in the Assignment and Assumption pursuant to which such Term Loan A Lender
becomes a party hereto, as applicable.


“Pro
Rata Term B Share” means, with respect to each Term Loan B
Lender, the percentage (carried out to the ninth decimal place) of the
principal amount of the Term Loan B funded by such Term Loan B Lender. The
initial Pro Rata Term B Share of each Term Loan B Lender is set forth opposite
the name of such Term Loan B Lender on Schedule 2.01
or in the Assignment and Assumption pursuant to which such Term Loan B Lender
becomes a party hereto, as applicable.


“Receivables
Co.”  means any
Restricted Subsidiary of the Borrower whose sole business consists of
purchasing Accounts and related assets, or interests therein, pursuant to a
Permitted Receivables Transaction, from the Borrower and its Restricted Subsidiaries,
selling and granting Liens on such Accounts and related assets, or interests
therein, obtaining credit on the basis of sales of or Liens on such Accounts
and related assets, or interests therein, and such other activities as are
incidental to the foregoing.


“Receivables Facility Outstandings”  means obligations of the Borrower and its Restricted
Subsidiaries, with respect to any Permitted Receivables Transaction, and, for
purposes of this Agreement and each other Loan Document, the amount of such
obligations in respect of any Permitted Receivables Transaction shall be (a) if
such Permitted Receivables Transaction is or should be an “on-balance-sheet”
transaction in accordance with GAAP, the aggregate principal amount of debt
required to be reflected on the consolidated balance sheet of the Borrower and
the Restricted Subsidiaries in respect thereof in accordance with GAAP and (b) if
such Permitted Receivables Transaction is or should be an “off-balance-sheet”
transaction in accordance with GAAP, the aggregate principal amount of debt
that would be required to be reflected on the consolidated balance sheet of the
Borrower and the Restricted Subsidiaries in respect thereof in accordance with
GAAP if such Permitted Receivables Transaction were an “on-balance-sheet”
transaction in accordance with GAAP.


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


“Registered
Public Accounting Firm” has the meaning specified in the
Securities Laws and shall be independent of the Borrower as prescribed in the
Securities Laws.


“Related
Credit Arrangements” means, collectively, Related Swap Contracts
and Related Treasury Management Arrangements.


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



 A-30
 









“Related
Swap Contract” means all Swap Contracts that are entered into or
maintained by any Loan Party with a Lender or Affiliate of a Lender that are
not prohibited by the express terms of the Loan Documents.


“Related
Treasury Management Arrangements” means all arrangements for the
delivery of treasury management services to or for the benefit of any Loan
Party which are entered into or maintained with a Lender or Affiliate of a
Lender and which are not prohibited by the express terms of the Loan Documents.


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


“Request
for Credit Extension” means (a) with respect to a
Borrowing, conversion or continuation of Revolving Loans, a Revolving Loan
Notice, (b) with respect to a conversion or continuation of Segments, a
Term Loan Interest Rate Selection Notice, (c) with respect to an L/C—BA
Credit Extension, a Letter of Credit Application, and (d) with respect to
a Swing Line Loan, a Swing Line Loan Notice.


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


“Required
Revolving Lenders” means, as of any date of determination,
Revolving Lenders having more than 50% of the Aggregate Revolving Credit
Commitments and Outstanding Amount (including risk participations in Letters of
Credit and Swing Line Loans) under the Revolving Credit Facility; provided that the Revolving Credit Commitment of, and the
portion of the Outstanding Amount (including risk participations in Letters of
Credit and Swing Line Loans) under the Revolving Credit Facility held or deemed
held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Revolving Lenders.


“Required
Term Loan A Lenders” means, as of any date of determination,
Term Loan A Lenders having more than 50% of the Outstanding Amount of the Term
Loan A; provided that the Outstanding Amount of
the Term Loan A held or deemed held by any Defaulting Lender shall be excluded
for purposes of making a determination of Required Term Loan A Lenders.


“Required
Term Loan B Lenders” means, as of any date of determination,
Term Loan B Lenders having more than 50% of the Outstanding Amount of the Term
Loan B; provided that the Outstanding Amount of
the Term Loan B held or deemed held by any Defaulting Lender shall be excluded
for purposes of making a determination of Required Term Loan B Lenders.


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


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



 A-31
 









termination of any such
capital stock or other Equity Interest, or on account of any return of capital
to the Borrower’s stockholders, partners or members (or the equivalent Person
thereof). For avoidance of doubt, payments pursuant to any shared services
agreement described in Section 8.08
shall not be deemed to be Restricted Payments.


“Restricted
Subsidiaries” means all Subsidiaries of the Borrower other than
the Unrestricted Subsidiaries.


“Revaluation Date”
means (a) with respect to any Loan, each of the following:  (i) each date of a Borrowing of a
Eurocurrency Rate Loan denominated in an Alternative Currency, (ii) each
date of a continuation of a Eurocurrency Rate Loan denominated in an
Alternative Currency pursuant to Section 2.03,
and (iii) such additional dates as the Administrative Agent shall
determine or the Required Lenders shall require; and (b) with respect to
any Letter of Credit, each of the following: 
(i) each date of issuance of a Letter of Credit denominated in an
Alternative Currency, (ii) each date of an amendment of any such Letter of
Credit having the effect of increasing the amount thereof (solely with respect
to the increased amount), (iii) each date of any payment by the L/C Issuer
under any Letter of Credit denominated in an Alternative Currency, and (iv) such
additional dates as the Administrative Agent or the L/C Issuer shall determine
or the Required Lenders shall require.


“Revolving
Borrowing” means a borrowing consisting of simultaneous
Revolving Loans of the same Type and, in the case of Eurocurrency Rate Loans,
having the same Interest Period, made by each of the Revolving Lenders pursuant
to Section 2.02.


“Revolving
Credit Commitment” means, as to each Revolving Lender, its
obligation to (a) make Revolving Loans to the Borrower pursuant to Section 2.02, (b) purchase participations in L/C—BA
Obligations, and (c) purchase participations in Swing Line Loans, in an
aggregate principal amount at any one time outstanding not to exceed the amount
set forth opposite such Revolving Lender’s name on Schedule
2.01 or in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable, as such amount may be adjusted
from time to time in accordance with this Agreement.


“Revolving
Credit Facility” means the facility described in Sections 2.02, 2.04 and 2.05 providing for Revolving Loans, Swing Line Loans,
Letters of Credit and BAs to or for the benefit of the Borrower by the
Revolving Lenders, Swing Line Lender and L/C Issuer, as the case may be, in the
maximum aggregate principal amount at any time outstanding of $300,000,000,  as adjusted from time to time pursuant to
the terms of this Agreement.


“Revolving
Credit Maturity Date” means the earliest of (a) May 24,
2012,  or (b) such earlier
date upon which the Outstanding Amounts under the Revolving Credit Facility,
including all accrued and unpaid interest, are required to be paid in full, and
all Revolving Credit Commitments terminated, in accordance with the terms
hereof.


“Revolving
Lender” means each Lender that has a Revolving Credit Commitment
or, following termination of the Revolving Credit Commitments, has Revolving
Loans outstanding or participations in an outstanding Letter of Credit, Banker’s
Acceptance or Swing Line Loan.


“Revolving
Loan” means a Base Rate Loan or a Eurocurrency Rate Loan made to
the Borrower by a Revolving Lender in accordance with its Pro Rata Revolving
Share pursuant to Section 2.02, except as
otherwise provided herein. Revolving Loans may be denominated in Dollars or,
subject to the Alternative Currency Sublimit and after the effectiveness of the
Fronting Structure Amendment, in an Alternative Currency.



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“Revolving
Loan Note” means a promissory note made by the Borrower in favor
of a Revolving Lender evidencing Revolving Loans made by such Revolving Lender,
substantially in the form of Exhibit C-2.


“Revolving
Loan Notice” means a notice of (a) a Revolving Borrowing, (b) a
conversion of Revolving Loans from one Type to the other, or (c) a
continuation of Eurocurrency Rate Loans, pursuant to Section 2.03(a),
which, if in writing, shall be substantially in the form of Exhibit A-1.


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


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


“Sarbanes-Oxley”
means the Sarbanes-Oxley Act of 2002.


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


“Secured
Parties” means, collectively, with respect to each of the Security
Instruments, the Administrative Agent, the Lenders and such other Persons for
whose benefit the Lien thereunder is conferred, as therein provided.


“Securities
Laws” means the Securities Act of 1933, the Exchange Act,
Sarbanes-Oxley and the applicable accounting and auditing principles, rules,
standards and practices promulgated, approved or incorporated by the SEC or the
Public Company Accounting Oversight Board, as each of the foregoing may be
amended and in effect on any applicable date hereunder.


“Security
Agreement” means the Amended and Restated Security Agreement
dated as of the date hereof by the Borrower and one or more of the Guarantors
to the Administrative Agent for the benefit of the Secured Parties,
substantially in the form of Exhibit G,
as supplemented from time to time by the execution and delivery of Security
Joinder Agreements pursuant to Section 7.12.


“Security
Instruments” means, collectively or individually as the context
may indicate, the Security Agreement (including the Security Joinder
Agreements), the Pledge Agreement (including the Pledge Joinder Agreements and
the Pledge Agreement Supplements), each Mortgage, each Title Policy and each
other Mortgaged Property Support Document and all other agreements (including
control agreements), instruments and other documents, whether now existing or
hereafter in effect, pursuant to which the Borrower or any Restricted
Subsidiary or other Person shall grant or convey to the Administrative Agent or
the Lenders a Lien in, or any other Person shall acknowledge any such Lien in,
property as security for all or any portion of the Obligations or any other
obligation under any Loan Document, as any of them may be reinstated from time
to time in accordance with the terms hereof and thereof.


“Security
Joinder Agreement” means each Security Joinder Agreement,
substantially in the form thereof attached to the Security Agreement, executed
and delivered by a Guarantor or any other Person to the Administrative Agent
pursuant to Section 7.12.


“Segment”
means a portion of either Term Loan (or all thereof) with respect to which a
particular interest rate is (or is proposed to be) applicable.


“Senior
Credit Facility” means, collectively, the Term Loan Facilities
and the Revolving Credit Facility.



 A-33
 









“Solvent” means, when
used with respect to any Person, that at the time of determination:


(a)        the
fair value of its assets (both at fair valuation and at present fair saleable
value on an orderly basis) is in excess of the total amount of its liabilities,
including contingent obligations; and


(b)        it is
then able and expects to be able to pay its debts as they mature; and


(c)        it has
capital sufficient to carry on its business as conducted and as proposed to be
conducted.


“SPC”
has the meaning specified in Section 11.06(h).


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


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


“Sterling”
and “£” mean the lawful currency of the
United Kingdom.


“Subordinated Notes”  means
the 73¤8% senior subordinated notes due 2017 issued by the
Borrower pursuant to the Subordinated Notes Indenture in an aggregate principal
amount of $425,000,000 on or prior to the Closing Date, as in effect on the
Closing Date and, thereafter, as amended, supplemented, amended and restated or
otherwise modified in accordance with Section 8.11,
and any registered exchange notes issued in exchange therefor.


“Subordinated
Notes Indenture” means the Indenture, dated as of May 24,
2007, among the Borrower, the guarantors signatory thereto, and The Bank of New
York, as trustee, as in effect on the Closing Date and, thereafter, as amended,
supplemented, amended and restated or otherwise modified in accordance with Section 8.11.


“Subsidiary”
of a Person means a corporation, partnership, joint venture, limited liability
company or other business entity (but not a representative office of such
Person) of which a majority of the shares of securities or other interests
having ordinary voting power for the election of directors or other governing
body (other than securities or interests having such power only by reason of
the happening of a contingency) are at the time beneficially owned, or the
management of which is otherwise controlled, directly, or indirectly through
one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall
refer to a Subsidiary or Subsidiaries of the Borrower and shall include,
without limitation, the Unrestricted Subsidiaries.


“Subsidiary
Securities” means the Equity Interests issued by or in any
Subsidiary, whether or not constituting a “security” under Article 8 of
the Uniform Commercial Code as in effect in any jurisdiction.


“Swap
Contract” means (a) any and all rate swap transactions,
basis swaps, credit derivative transactions, forward rate transactions,
commodity swaps, commodity options, forward commodity contracts, equity or
equity index swaps or options, bond or bond price or bond index swaps or
options or 



 A-34
 









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


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


“Swing
Line” means the revolving credit facility made available by the
Swing Line Lender pursuant to Section 2.05.


“Swing
Line Borrowing” means a borrowing of a Swing Line Loan pursuant
to Section 2.05.


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


“Swing
Line Loan” has the meaning specified in Section 2.05(a).


“Swing
Line Loan Notice” means a notice of a Swing Line Borrowing
pursuant to Section 2.05(b), which, if in
writing, shall be substantially in the form of Exhibit B.


“Swing
Line Sublimit” means an amount equal to the lesser of
(a) $25,000,000 and (b) the Aggregate Revolving Credit Commitments.
The Swing Line Sublimit is part of, and not in addition to, the Aggregate
Revolving Credit Commitments.


“Syndication
Agent” means JPMorgan in its capacity as syndication agent under
any of the Loan Documents, or any successor syndication agent.


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


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


“Taxes”
means all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental
Authority, including any interest, additions to tax or penalties applicable
thereto.


“Term
Lenders” means, individually or collectively, the Term Loan A
Lenders and the Term Loan B Lenders.



 A-35















“Term
Loan A” means the loans made pursuant to the Term Loan A
Facility in accordance with Section 2.01.
The loans made pursuant to the Term Loan A Facility may only be denominated in
Dollars.


“Term
Loan A Facility” means the facility described in Section 2.01(a) providing for an advance of the
Term Loan A to the Borrower by the Term Loan A Lenders in the original
principal amount of $150,000,000, as adjusted from time to time pursuant to the
terms of this Agreement.


“Term
Loan A Lender” means each Lender that has a portion of the Term
Loan A outstanding under the Term Loan A Facility.


“Term
Loan A Maturity Date” means the earliest of (a) May 24,
2012,  or (b) such earlier
date upon which the Outstanding Amounts under the Term Loan Facility, including
all accrued and unpaid interest, are required to be paid in full in accordance
with the terms hereof.


“Term
Loan A Note” means a promissory note made by the Borrower in
favor of a Term Loan A Lender evidencing the portion of the Term Loan A made by
such Term Loan A Lender, substantially in the form of Exhibit C-1.


“Term
Loan B” means the loans made pursuant to the Term Loan B
Facility in accordance with Section 2.01.
The loans made pursuant to the Term Loan B Facility may only be denominated in
Dollars.


“Term
Loan B Facility” means the facility described in Section 2.01(b) providing for an advance of the
Term Loan B to the Borrower by the Term Loan B Lenders in the original
principal amount of $565,000,000, as adjusted from time to time pursuant to the
terms of this Agreement.


“Term
Loan B Lender” means each Lender that has a portion of the Term
Loan B outstanding under the Term Loan B Facility.


“Term
Loan B Maturity Date” means the earliest of (a) May 24,
2014,  or (b) such earlier
date upon which the Outstanding Amounts under the Term Loan Facility, including
all accrued and unpaid interest, are required to be paid in full in accordance
with the terms hereof.


“Term
Loan B Note” means a promissory note made by the Borrower in
favor of a Term Loan B Lender evidencing the portion of the Term Loan B made by
such Term Loan B Lender, substantially in the form of Exhibit C-3.


“Term
Loan Facilities” means, individually or collectively, the Term
Loan A Facility and the Term Loan B Facility.


“Term
Loan Interest Rate Selection Notice” means the written notice
delivered by a Responsible Officer of the Borrower in connection with the
election of a subsequent Interest Period for any Eurocurrency Rate Segment or
the conversion of any Eurocurrency Rate Segment into a Base Rate Segment or the
conversion of any Base Rate Segment into a Eurocurrency Rate Segment, which, if
in writing, shall be substantially in the form of Exhibit A-2.


“Term
Loan Notes” means, individually or collectively, the Term Loan A
Notes and the Term Loan B Notes.


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


“Title
Policy” means an ALTA mortgagee title policy insuring the first
lien priority of a Mortgage reflecting only such Liens as are permitted under Section 8.01(a), (c), (d), (g) or (j) or which are otherwise acceptable to the
Administrative Agent, together with all endorsements reasonably requested by
the Administrative Agent.


“Total
Outstandings” means the aggregate Outstanding Amount of all
Loans and all L/C—BA Obligations.



 A-36
 









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


“Transactions”
means, individually or collectively as the context may indicate, (a) the
Existing Subordinated Notes Tender, (b) the Existing Borrower Notes
Tender, (c) the issuance of the Subordinated Notes, and (d) the
entering by the Borrower of this Agreement and the funding of the Term Loan
Facilities and Revolving Credit Facility, and the related amendment and
restatement of the Existing Agreement.


“Type”
means with respect to (a) a Revolving Loan, its character as a Base Rate
Loan or a Eurocurrency Rate Loan, and (b) a Segment, its character as a
Base Rate Segment or a Eurocurrency Rate Segment.


“UCC”
means the Uniform Commercial Code as in effect from time to time in the State
of New York; provided that if, with respect to
any financing statement or by reason of any mandatory provisions of law, the
perfection or the effect of perfection or non-perfection of the security
interests granted to the Administrative Agent pursuant to any applicable Loan
Document is governed by the Uniform Commercial Code as in effect in a
jurisdiction of the United States other than New York, the term “UCC” shall also
include the Uniform Commercial Code as in effect from time to time in such
other jurisdiction for purposes of the provisions of this Agreement, each Loan
Document and any financing statement relating to such perfection or effect of
perfection or non-perfection.


“Unfunded
Pension Liability” means (a) the excess of a Pension Plan’s
(other than a Foreign Pension Plan’s) benefit liabilities under Section 4001(a)(16)
of ERISA, over the current value of that Pension Plan’s (other than a Foreign
Pension Plan’s) assets, determined in accordance with the assumptions used for
funding the Pension Plan (other than a Foreign Pension Plan) pursuant to
section 412 of the Code for the applicable plan year, and (b) with respect
to each Foreign Pension Plan required to be funded under Foreign Benefit Law,
the amount (if any) by which the present value of the accrued benefit
liabilities (whether or not vested) under each Foreign Pension Plan exceeds the
current value of the assets of such Foreign Pension Plan’s assets allocable to
such benefits, all as determined in accordance with the applicable Foreign
Benefit Law for the applicable plan year.


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


“Unreimbursed
Amount” has the meaning specified in Section 2.04(c)(i).


“Unrestricted
Subsidiaries” means (i) each Subsidiary of the Borrower
listed on Schedule 1.02(a) and (ii) any
Subsidiary of the Borrower designated by the board of directors of the Borrower
as an Unrestricted Subsidiary pursuant to Section 7.15
subsequent to the Closing Date.


“Voting
Securities” means shares of capital stock issued by a
corporation, or equivalent interests in any other Person, the holders of which
are ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such Person,
even if the right so to vote has been suspended by the happening of such a
contingency.


“Yen” and “¥”
mean the lawful currency of Japan.


1.03     Other
Interpretive Provisions.   With reference to
this Agreement and each other Loan Document, unless otherwise specified herein
or in such other Loan Document:


(a)        The
definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without
limitation.” The word “will” shall be
construed to have the same meaning and effect as the word “shall.”
Unless the context requires otherwise, (i) any definition of or reference
to 



 A-37
 









any agreement, instrument
or other document (including any Organization Document) shall be construed as
referring to such agreement, instrument or other document as from time to time
amended, supplemented or otherwise modified (subject to any restrictions on
such amendments, supplements or modifications set forth herein or in any other
Loan Document), including any such amendments, supplements or modifications in
connection with this Agreement of documents entered into in connection with the
Existing Agreement, (ii) any reference herein to any Person shall be
construed to include such Person’s successors and assigns, (iii) the words
“herein,” “hereof”
and “hereunder,” and words of similar import
when used in any Loan Document, shall be construed to refer to such Loan
Document in its entirety and not to any particular provision thereof, (iv) all
references in a Loan Document to Articles, Sections, Exhibits and Schedules
shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan Document in which such references appear, (v) any
reference to any law shall include all statutory and regulatory provisions
consolidating, amending, replacing or interpreting such law and any reference
to any law or regulation shall, unless otherwise specified, refer to such law
or regulation as amended, modified or supplemented from time to time, and (vi) 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.


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


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


1.04     Accounting Terms.   (a) Generally.   All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to
time, applied in a manner consistent with that used in preparing the Audited
Financial Statements, except as
otherwise specifically prescribed herein.


(b)        Changes in GAAP.   If at any time any change in GAAP
would affect the computation of any financial ratio or requirement set forth in
any Loan Document, and either the Borrower or the Required Lenders shall so
request, the Administrative Agent, the Lenders and the Borrower shall negotiate
in good faith to amend such ratio or requirement to preserve the original
intent thereof in light of such change in GAAP (subject to the approval of the
Required Lenders); provided  that, until so amended, (i) such ratio or requirement
shall continue to be computed in accordance with GAAP prior to such change
therein and (ii) the Borrower shall provide to the Administrative Agent
and the Lenders financial statements and other documents required under this
Agreement or as reasonably requested hereunder setting forth a reconciliation
between calculations of such ratio or requirement made before and after giving
effect to such change in GAAP.


(c)        All
defined terms used in the calculation of the financial covenants set forth in Section 8.12 hereof shall be calculated on an
historical pro forma basis giving effect (by inclusion or exclusion, as
applicable), during any period of measurement that includes any Acquisition
permitted by Section 8.13  or any Disposition permitted by  Section 8.05(e),
to the actual historical results of the Person so acquired or disposed and
which amounts shall include only adjustments as are permitted under Regulation
S-X of the SEC or are otherwise reasonably satisfactory to the Administrative
Agent.


(d)        Any
pro forma calculation of either financial covenant set forth in Section 8.12 made herein shall be made (i) as if
all Indebtedness incurred or repaid at the time of such measurement had been
incurred or repaid, as applicable, on the first day of the Four-Quarter Period
most recently ended for which the Borrower has delivered financial statements
pursuant to Section 7.01(a) or 7.01(b) (or, if prior to 



 A-38
 









the first such date after
the Closing Date, the Four-Quarter Period ended March 31, 2007) and (ii) pro
forma for any other element of the relevant transaction that would affect the
calculation of either such financial covenant.


(e)        For
the avoidance of doubt, the term “the Borrower and its Restricted Subsidiaries”
as used in the defined terms used in the calculation of the financial covenants
set forth in Section 8.12 hereof shall
not include any consolidation of the assets, liabilities or results of
operations of the Unrestricted Subsidiaries in the assets, liabilities or
results of the Borrower or any Restricted Subsidiary.


(f)         Consolidation of Variable Interest Entities.   Except as
expressly provided otherwise herein, all references herein to consolidated
financial statements of the Borrower and its Subsidiaries or to the
determination of any amount for the Borrower and its Subsidiaries on a
consolidated basis or any similar reference shall, in each case, be deemed to
include each variable interest entity that the Borrower is required to
consolidate pursuant to FASB Interpretation No. 46—Consolidation
of Variable Interest Entities: an interpretation of ARB No. 51 (January 2003)
as if such variable interest entity were a Subsidiary as defined herein.


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


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


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


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


(b)        Any
such request shall be made to the Administrative Agent not later than 11:00 a.m.,
20 Business Days prior to the date of the desired Credit Extension (or such
other time or date as may be agreed by the Administrative Agent and, in the
case of any such request pertaining to Letters of Credit, the L/C Issuer, in
its or their sole discretion). In the case of any such request pertaining to
Eurocurrency Rate 



 A-39
 









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


(c)        Any
failure by a Revolving Lender or the L/C Issuer, as the case may be, to respond
to such request within the time period specified in the preceding sentence
shall be deemed to be a refusal by such Revolving Lender or the L/C Issuer, as
the case may be, to permit Eurocurrency Rate Revolving Loans to be made or
Letters of Credit to be issued in such requested currency. If the
Administrative Agent and all the Revolving Lenders consent to making
Eurocurrency Rate Revolving Loans in such requested currency, the
Administrative Agent shall so notify the Borrower and such currency shall
thereupon be deemed for all purposes to be an Alternative Currency hereunder
for purposes of any Borrowings of Eurocurrency Rate Revolving Loans; and if the
Administrative Agent and the L/C Issuer consent to the issuance of Letters of
Credit in such requested currency, the Administrative Agent shall so notify the
Borrower and such currency shall thereupon be deemed for all purposes to be an
Alternative Currency hereunder for purposes of any Letter of Credit issuances. If
the Administrative Agent shall fail to obtain consent to any request for an
additional currency under this Section 1.07,
the Administrative Agent shall promptly so notify the Borrower.


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


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


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


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


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



 A-40















ARTICLE
II.


THE COMMITMENTS AND
CREDIT EXTENSIONS


2.01     Term
Loans.


(a)        Term Loan A.   Subject to the terms and conditions of
this Agreement, each Term Loan A Lender severally agrees to make an advance of
its Pro Rata Term A Share of the Term Loan A to the Borrower in Dollars on the
Closing Date, and from the Closing Date to the Term Loan A Maturity Date,
convert and continue Segments from time to time in accordance with the terms
hereof. The principal amount of each Segment of the Term Loan A outstanding
hereunder from time to time shall bear interest and the Term Loan A shall be
repayable as herein provided. No amount of the Term Loan A repaid or prepaid by
the Borrower may be reborrowed hereunder, and no subsequent advance under the
Term Loan A Facility shall be allowed after the initial such advance of the
Term Loan A on the Closing Date. Segments of the Term Loan A may be Base Rate
Segments or Eurocurrency Rate Segments at the Borrower’s election, as provided
herein.


(b)        Term Loan B.   Subject to the terms and conditions of
this Agreement, and subject to the provisions of Section 1.01
with respect to the continuation of outstanding amounts of the Term Loan under
(and as defined in) the Existing Agreement, each Term Loan B Lender severally
agrees to make an advance of, or continue from the Existing Agreement, its Pro
Rata Term B Share of the Term Loan B to the Borrower in Dollars on the Closing
Date, and from the Closing Date to the Term Loan Maturity Date, convert and
continue Segments from time to time in accordance with the terms hereof. The
principal amount of each Segment of the Term Loan B outstanding hereunder from
time to time shall bear interest and the Term Loan B shall be repayable as
herein provided. No amount of the Term Loan B repaid or prepaid by the Borrower
may be reborrowed hereunder, and no subsequent advance under the Term Loan B
Facility shall be allowed after the initial such advance of the Term Loan B on
the Closing Date. Segments of the Term Loan B may be Base Rate Segments or
Eurocurrency Rate Segments at the Borrower’s election, as provided herein.


(c)        Term Loans Generally.   Not later than 1:00 P.M.
New York time on the Closing Date, and subject to the provisions of Section 1.01 with respect to the continuation of
outstanding amounts of the Term Loan under (and as defined in) the Existing
Agreement as a portion of the Term Loan B Facility hereunder, each Term Lender
shall, pursuant to the terms and subject to the conditions of this Agreement,
make the amount of its Pro Rata Term A Share of the Term Loan A and/or (to the
extent not already funded under the Existing Agreement and continued hereunder
pursuant to Section 1.01) its Pro Rata Term B
Share of the Term Loan B, as applicable, available by wire transfer to the
Administrative Agent. Such wire transfer shall be directed to the
Administrative Agent at the Administrative Agent’s Office and shall be in Same
Day Funds in Dollars. The amount so received by the Administrative Agent shall,
subject to the terms and conditions of this Agreement, including without
limitation the satisfaction of all applicable conditions in Sections 5.01 and 5.02, be made
available to the Borrower by delivery of the proceeds thereof as shall be
directed by the Responsible Officer of the Borrower and reasonably acceptable
to the Administrative Agent. The initial Borrowing of the Term Loans may be
Eurocurrency Rate Segments, Base Rate Segments, or both; provided
that if the Borrower desires that any portion of the initial Borrowing of
either Term Loan is advanced as a Eurocurrency Rate Segment, the Administrative
Agent shall make such Borrowing as a Eurocurrency Rate Segment only if, not
later than three Business Days prior to the date that is then anticipated to be
the Closing Date, the Administrative Agent has received from the Borrower a
Term Loan Interest Rate Selection Notice with respect thereto, together with
the Borrower’s written acknowledgement in form and substance satisfactory to
the Administrative Agent that the provisions of Section 4.05
hereof shall apply to any failure by the Borrower to borrow on the date set
forth in such Term Loan Interest Rate Selection notice any or all of the
amounts specified in such Term Loan Interest Rate Selection Notice.



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2.02     Revolving
Loans.   Subject to the terms and conditions set forth
herein, each Revolving Lender severally agrees to make, convert and continue
Revolving Loans to the Borrower in Dollars or (after the effectiveness of the
Fronting Structure Amendment) in one or more Alternative Currencies from time
to time, on any Business Day during the Availability Period, in an aggregate
amount not to exceed at any time outstanding the amount of such Revolving
Lender’s Revolving Credit Commitment; provided, however, that after giving effect to any Revolving
Borrowing, (i) the Total Revolving Outstandings shall not exceed the
Aggregate Revolving Credit Commitments, (ii) the aggregate Outstanding
Amount of the Revolving Loans of any Revolving Lender, plus
such Lender’s Pro Rata Revolving Share of the Outstanding Amount of all L/C -
BA Obligations, plus such Lender’s Pro Rata
Revolving Share of the Outstanding Amount of all Swing Line Loans shall not
exceed such Lender’s Revolving Credit Commitment, and (iii) the aggregate
Outstanding Amount of all Loans denominated in Alternative Currencies shall not
exceed the Alternative Currency Sublimit. Within the limits of each Revolving
Lender’s Revolving Credit Commitment, and subject to the other terms and
conditions hereof, the Borrower may borrow under this Section 2.02,
prepay under Section 2.06, and reborrow
under this Section 2.02. Revolving Loans may
be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.


2.03     Borrowings,
Conversions and Continuations of Committed Loans.


(a)        Each
Revolving Borrowing, each conversion of Revolving Loans or Segments of the Term
Loans from one Type to the other, and each continuation of Eurocurrency Rate
Loans shall be made upon the Borrower’s irrevocable notice to the
Administrative Agent, which may be given by telephone. Each such notice must be
received by the Administrative Agent not later than 12:00 noon (i) three
Business Days prior to the requested date of any Borrowing of, conversion to or
continuation of Eurocurrency Rate Loans or of any conversion of Eurocurrency
Rate Loans to Base Rate Loans, (ii) four Business Days (or five Business
Days in the case of a Special Notice Currency) prior to the requested date of
any Borrowing or continuation of Eurocurrency Rate Revolving Loans denominated
in Alternative Currencies and (iii) on the requested date of any Borrowing
of Base Rate Loans; provided, however, that
if the Borrower wishes to request Eurocurrency Rate Loans having an Interest
Period other than one, two, three or six months in duration as provided in the
definition of “Interest Period”, the applicable notice must be received by the
Administrative Agent not later than 11:00 a.m. (i) four Business Days
prior to the requested date of such Borrowing, conversion or continuation of
Eurocurrency Rate Loans denominated in Dollars, or (ii) five Business Days
(or six Business days in the case of a Special Notice Currency) prior to the
requested date of such Borrowing, conversion or continuation of Eurocurrency
Rate Revolving Loans denominated in Alternative Currencies, whereupon the
Administrative Agent shall give prompt notice to the Lenders or the Revolving
Lenders, as the case may be, of such request and determine whether the
requested Interest Period is acceptable to all of them (it being understood
that Interest Periods in a number of days sufficient to expire on our about July 31,
2007 shall be acceptable to the extent such Interest Periods are requested in
connection with the conversion of the Revolving Loans (as defined in the
Existing Credit Agreement) and Term Loans (as defined in the Existing Credit
Agreement) converted to Base Rate Loans on the Closing Date pursuant to Section 1.01(h)). Not later than 11:00 a.m., (i) three
Business Days before the requested date of such Borrowing, conversion or
continuation of Eurocurrency Rate Loans denominated in Dollars, or (ii) four
Business Days (or five Business days in the case of a Special Notice Currency)
prior to the requested date of such Borrowing, conversion or continuation of
Eurocurrency Rate Revolving Loans denominated in Alternative Currencies, the
Administrative Agent shall notify the Borrower (which notice may be by
telephone) whether or not the requested Interest Period has been consented to
by all the Lenders or all the Revolving Lenders, as the case may be. Each
telephonic notice by the Borrower pursuant to this Section 2.03(a) must
be confirmed promptly by delivery to the Administrative Agent of a written
Revolving Loan Notice (as to Revolving Borrowings) or Term Loan Interest Rate
Selection Notice, appropriately completed and signed by a Responsible Officer
of the Borrower (unless such Revolving Loan Notice is being delivered by a
Swing Line Lender pursuant to Section 2.05(c) or
by the 



 A-42
 









Administrative Agent on
behalf of the L/C Issuer pursuant to Section 2.04(c)(i));
provided that the lack of such prompt
confirmation shall not affect the conclusiveness or binding effect of such
telephonic notice. Each Borrowing of, conversion to or continuation of
Eurocurrency Rate Loans shall be in a principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof. Except as provided in Sections 2.04(c) and 2.05(c),
each Borrowing of or conversion to Base Rate Loans shall be in a principal
amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Each
Revolving Loan Notice and Term Loan Interest Rate Selection Notice (whether
telephonic or written) shall specify (i) whether the Borrower is
requesting a Revolving Borrowing (applicable to Revolving Loan Notices only), a
conversion of Revolving Loans from one Type to the other, or a continuation of
Eurocurrency Rate Loans, (ii) the requested date of the Borrowing,
conversion or continuation, as the case may be (which shall be a Business Day),
(iii) the principal amount of Revolving Loans to be borrowed, converted or
continued, (iv) the Type of Revolving Loans to be borrowed or to which
existing Revolving Loans are to be converted, (v) if applicable, the
duration of the Interest Period with respect thereto and (vi) in the case
of a Revolving Borrowing, the currency of the Revolving Loans to be borrowed. Each
written Revolving Loan Notice shall be substantially in the form of Exhibit A-1 attached hereto, and each written
Term Loan Interest Rate Selection Notice shall be substantially in the form of Exhibit A-2 attached hereto. If the Borrower
fails to specify a currency in a Revolving Loan Notice requesting a Revolving
Borrowing, then the Revolving Loans so requested shall be made in Dollars. If
the Borrower fails to specify a Type of Revolving Loans in a Revolving Loan
Notice or if the Borrower fails to give a timely notice requesting a conversion
or continuation of Loans, then the applicable Loans shall, subject to the last
sentence of this Section 2.03(a), be made as,
or continued as, or converted to, Base Rate Loans; provided,
however, that in the case of a failure
to timely request a continuation of Revolving Loans denominated in an
Alternative Currency, such Revolving Loans shall be continued as Eurocurrency
Rate Loans in their original currency with an Interest Period of one month. Any
such automatic conversion to Base Rate Loans shall be effective as of the last
day of the Interest Period then in effect with respect to the applicable
Eurocurrency Rate Loans. If the Borrower requests a Borrowing of, conversion
to, or continuation of Eurocurrency Rate Loans in any such Revolving Loan
Notice or Term Loan Interest Rate Selection Notice, but fails to specify an
Interest Period, it will be deemed to have specified an Interest Period of one
month. No Loan may be converted into or continued as a Loan denominated in a
different currency, but instead must be prepaid in the original currency of
such Loan and reborrowed in the other currency.


(b)        Following
receipt of a Revolving Loan Notice, the Administrative Agent shall promptly
notify each applicable Lender of the amount (and currency) of its Pro Rata
Revolving Share of the applicable Revolving Loans, and if no timely notice of a
conversion or continuation is provided by the Borrower, the Administrative
Agent shall notify each Revolving Lender of the details of any automatic
conversion to Base Rate Loans or continuation of Revolving Loans denominated in
a currency other than Dollars, in each case as described in the preceding
subsection. In the case of a Revolving Borrowing, each applicable Lender shall
make the amount of its Revolving Loan available to the Administrative Agent in
Same Day Funds for the applicable currency at the Administrative Agent’s Office
not later than 2:00 p.m. in the case of any Revolving Loan denominated in
Dollars, and not later than the Applicable Time specified by the Administrative
Agent in the case of any Revolving Loan in an Alternative Currency, in each
case on the Business Day specified in the applicable Revolving Loan Notice. Upon
satisfaction of the applicable conditions set forth in Section 5.02
(and, if such Borrowing is the initial Credit Extension, Section 5.01),
the Administrative Agent shall make all funds so received available to the
Borrower in like funds as received by the Administrative Agent either by (i) crediting
the account of the Borrower on the books of Bank of America with the amount of
such funds or (ii) wire transfer of such funds, in each case in accordance
with instructions provided to (and reasonably acceptable to) the Administrative
Agent by the Borrower; provided, however, that if, on the date the Revolving Loan Notice with
respect to such Borrowing denominated in Dollars is given by the Borrower,
there are Swing Line Loans or L/C - BA Borrowings outstanding, then the
proceeds of such Borrowing, first, shall be
applied to the payment in full of any such 



 A-43
 









L/C—BA Borrowings, second, to the payment in full of any such Swing Line Loans,
and third, to the Borrower as provided
above.


(c)        Except
as otherwise provided herein, a Eurocurrency Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurocurrency Rate
Loan. During the existence of a Default, no Loans may be requested as,
converted to or continued as Eurocurrency Rate Loans (whether in Dollars or any
Alternative Currency) without the consent of the Required Revolving Lenders,
the Required Term Loan A Lenders or the Required Term Loan B Lenders, as
applicable. During the existence of an Event of Default, the Required Revolving
Lenders may demand that any or all of the then outstanding Eurocurrency Rate
Revolving Loans denominated in an Alternative Currency be prepaid, or
redenominated into Dollars in the amount of the Dollar Equivalent thereof, on
the last day of the then current Interest Period with respect thereto.


(d)        The
Administrative Agent shall promptly notify the Borrower and the applicable
Lenders of the interest rate applicable to any Interest Period for Eurocurrency
Rate Loans upon determination of such interest rate. The determination of the
Eurocurrency Rate by the Administrative Agent shall be conclusive in the
absence of manifest error. At any time that Base Rate Loans are outstanding,
the Administrative Agent shall notify the Borrower and the Lenders of any
change in Bank of America’s prime rate used in determining the Base Rate
promptly following the public announcement of such change.


(e)        After
giving effect to all Borrowings, all conversions of Loans from one Type to the
other, and all continuations of Loans as the same Type, there shall not at any
time be more than (a) five Interest Periods in effect with respect to the
Term Loan A, (b) ten Interest Periods in effect with respect to the Term
Loan B, and (c) ten Interest Periods in effect with respect to the
Revolving Credit Facility.


2.04     Letters
of Credit and Bankers’ Acceptances.


(a)        The Letter of Credit—BA Commitment.


(i)         Subject
to the terms and conditions set forth herein, (A) the L/C Issuer agrees,
in reliance upon the agreements of the Revolving
Lenders set forth in this Section 2.04,
(1) from time to time on any Business Day during the period from the
Closing Date until the earlier to occur of the Letter of Credit—BA Expiration
Date or the termination of the Availability Period, to issue Letters of Credit
denominated in Dollars or in one or more Alternative Currencies for the account
of the Borrower or the Borrower and a
Restricted Subsidiary, and to amend Letters of Credit previously issued
by it, in accordance with subsection (b) below, (2) to honor drafts
under the Letters of Credit; and (3) with respect to Acceptance Credits,
to create Bankers’ Acceptances in accordance with the terms thereof and hereof,
and (B) the Revolving Lenders
severally agree to participate in Letters of Credit and Bankers’ Acceptances
issued for the account of the Borrower or
the Borrower and a Restricted Subsidiary and any drawings thereunder; provided that the L/C Issuer shall not be obligated to make
any L/C—BA Credit Extension with respect to any Letter of Credit, and no
Revolving Lender shall be obligated to participate in any Letter of Credit, if (A) as
of the date of such L/C—BA Credit Extension, (x) the Total Revolving
Outstandings would exceed the Aggregate
Revolving Credit Commitments, (y) the aggregate Outstanding Amount
of the Revolving Loans of any Revolving Lender, plus
such Revolving Lender’s Pro Rata
Revolving Share of the Outstanding Amount of all L/C—BA Obligations, plus such Revolving Lender’s Pro Rata Revolving Share of the
Outstanding Amount of all Swing Line Loans would exceed such Revolving Lender’s
Revolving Credit Commitment, and (z) the Outstanding Amount of the L/C—BA
Obligations would exceed the Letter of Credit—BA Sublimit, or (B) as to
Acceptance Credits, the Bankers’ Acceptance created or to be created thereunder
shall not be an eligible bankers’ acceptance under Section 13 of the
Federal Reserve Act (12 U.S.C. § 372). Each request by the Borrower for the
issuance or amendment of a Letter of Credit shall be deemed to be a
representation by the Borrower that the L/C—BA Credit Extension so requested
complies with the 



 A-44
 









conditions set forth in
the proviso to the preceding sentence. Within the foregoing limits, and subject
to the terms and conditions hereof, the Borrower’s ability to obtain Letters of
Credit shall be fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit that
have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be
deemed to have been issued pursuant hereto, and from and after the Closing Date
shall be subject to and governed by the terms and conditions hereof.


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


(A)       subject
to Section 2.04(b)(iii), the expiry
date of such requested Letter of Credit would occur (i) as to standby
Letters of Credit, more than twenty-four months after the date of issuance or
last renewal, and (ii) as to commercial Letters of Credit, later than the
earlier of (1) 270 days after the date of issuance thereof and (2) 60
days before the Letter of Credit—BA Expiration Date, unless in each case the
Required Revolving Lenders have approved such expiry date;


(B)       the
maturity date of any Bankers’ Acceptance issued under any such requested
Acceptance Credit would occur earlier than 30 or later than 120 days from date
of issuance and in any event later than 60 days before the Letter of Credit—BA
Expiration Date, unless the Required Revolving Lenders have approved such
expiry date;


(C)       the
expiry date of such requested Letter of Credit, or the maturity date of any
Bankers’ Acceptance issued under such requested Letter of Credit, would occur
after the Letter of Credit—BA Expiration Date, unless all the Revolving Lenders
have approved such expiry date;


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


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


(B)       the
issuance of such Letter of Credit or any related Bankers’ Acceptance would
violate one or more policies of the L/C Issuer, or the creation of any related
Bankers’ Acceptance would cause the L/C Issuer to exceed the maximum amount of
outstanding bankers’ acceptances permitted by applicable Law;


(C)       except
as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter
of Credit or related Bankers’ Acceptance is to be denominated in a currency
other than Dollars or is in an initial amount less than $10,000; provided, that the Administrative Agent and L/C Issuer agree
that up to 10 Letters of Credit may be issued and outstanding hereunder in
amounts less than $10,000;


(D)       a
default of any Revolving Lender’s obligations to fund under Section 2.04(c) exists or any Revolving Lender is
at such time a Defaulting Lender 



 A-45
 









hereunder, unless the L/C
Issuer has entered into satisfactory arrangements with the Borrower or such
Revolving Lender to eliminate the L/C Issuer’s risk with respect to such
Revolving Lender;


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


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


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


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


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


(b)        Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.


(i)         Each
Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the L/C Issuer (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of the Borrower  and, if applicable, of the applicable
Restricted Subsidiary. Such Letter of Credit Application must be received by
the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at
least two Business Days (or such later date and time as the Administrative
Agent and the L/C Issuer may agree in a particular instance in its sole
discretion) prior to the proposed issuance date or date of amendment, as the
case may be. In the case of a request for an initial issuance of a Letter of
Credit, such Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer: (A) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (B) the amount
and currency thereof; (C) the expiry date thereof; (D) the name and
address of the beneficiary thereof; (E) the documents to be presented by
such beneficiary in case of any drawing or presentation thereunder; (F) the
full text of any certificate to be presented by such beneficiary in case of any
drawing or presentation thereunder; and (G) such other matters as the L/C
Issuer may require. In the case of a request for an amendment of any
outstanding Letter of Credit, such Letter of Credit Application shall specify
in form and detail satisfactory to the L/C Issuer (A) the Letter of Credit
to be amended; (B) the proposed date of amendment thereof (which shall be
a Business Day); (C) the nature of the proposed amendment; and (D) such
other matters as the L/C Issuer may require. Additionally, the Borrower shall
furnish to the L/C Issuer and the Administrative Agent such other documents and
information pertaining 



 A-46
 









to such requested Letter
of Credit issuance or amendment, including any Issuer Documents, as the L/C
Issuer or the Administrative Agent may require.


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


(iii)      If the Borrower so requests in any applicable Letter of
Credit Application, the L/C Issuer may, in its sole and absolute discretion,
agree to issue a Letter of Credit other than a commercial Letter of Credit that
has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must
permit the L/C Issuer to prevent any such extension at least once in each
twelve-month period (commencing with the date of issuance of such Letter of
Credit) by giving prior notice to the beneficiary thereof not later than a day
(the “Non-Extension
Notice Date”) in each such twelve-month period to be agreed upon
at the time such Letter of Credit is issued. Unless otherwise directed by the
L/C Issuer, the Borrower shall not be required to make a specific request to
the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit
has been issued, the Revolving Lenders shall be deemed to have authorized (but
may not require) the L/C Issuer to permit the extension of such Letter of
Credit at any time to an expiry date not later than the Letter of Credit—BA
Expiration Date; provided, however, that the L/C
Issuer shall not permit any such extension if (A) the L/C Issuer has
determined that it would not be permitted, or would have no obligation, at such
time to issue such Letter of Credit in its revised form (as extended) under the
terms hereof (by reason of the provisions clause (ii) or
(iii) of Section 2.04(a) or
otherwise), or (B) it has received notice (which may be by telephone or in
writing) on or before the day that is five Business Days before the
Non-Extension Notice Date (1) from the Administrative Agent that the
Required Revolving Lenders have elected not to permit such extension or (2) from
the Administrative Agent, any Revolving Lender or the Borrower that one or more
of the applicable conditions specified in Section 5.02
is not then satisfied, and in each such case directing the L/C Issuer not to
permit such extension.


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



 A-47
 









(c)        Drawings and Reimbursements; Funding of
Participations.


(i)         Upon receipt from the beneficiary of any Letter of Credit of
any notice of a drawing or, with respect to any Acceptance Credit, presentation
of documents under such Letter of Credit, or any presentation for payment of a
Bankers’ Acceptance, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof. In the case of a Letter of Credit denominated in
an Alternative Currency, the Borrower shall reimburse the L/C Issuer in such
Alternative Currency, unless (A) the L/C Issuer (at its option) shall have
specified in such notice that it will require reimbursement in Dollars, or (B) in
the absence of any such requirement for reimbursement in Dollars, the Borrower
shall have notified the L/C Issuer promptly following receipt of the notice of drawing
that the Borrower will reimburse the L/C Issuer in Dollars. In the case of any
such reimbursement in Dollars of a drawing under a Letter of Credit denominated
in an Alternative Currency, the L/C Issuer shall notify the Borrower of the
Dollar Equivalent of the amount of the drawing promptly following the
determination thereof. Not later than 1:00 p.m. on the date of any payment
by the L/C Issuer under a Letter of Credit or Bankers’ Acceptance to be
reimbursed in Dollars, or the Applicable Time on the date of any payment by the
L/C Issuer under a Letter of Credit to be reimbursed in an Alternative Currency
(each such date, an “Honor
Date”), the Borrower shall reimburse the L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing or
Bankers’ Acceptance, as applicable, and in the applicable currency. If the
Borrower fails so to reimburse the L/C Issuer by such time, the Administrative
Agent shall promptly notify each Revolving Lender of the Honor Date, the amount
of the unreimbursed drawing or payment (expressed in Dollars in the amount of
the Dollar Equivalent thereof in the case of a Letter of Credit denominated in
an Alternative Currency) (the “Unreimbursed Amount”), and the amount of such Revolving
Lender’s Pro Rata Revolving Share thereof. In such event, the Borrower shall be
deemed to have requested a Revolving Borrowing of Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,
without regard to the minimum and multiples specified in Section 2.03
for the principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Aggregate Revolving Credit Commitments and the
conditions set forth in Section 5.02
(other than the delivery of a Revolving Loan Notice). Any notice given by the
L/C Issuer or the Administrative Agent pursuant to this Section 2.04(c)(i) may
be given by telephone if immediately confirmed in writing; provided
that the lack of such an immediate confirmation shall not affect the conclusiveness
or binding effect of such notice.


(ii)       Each Revolving Lender shall upon any
notice pursuant to Section 2.04(c)(i) make
funds available to the Administrative Agent for the account of the L/C Issuer,
in Dollars, at the Administrative Agent’s Office for Dollar-denominated
payments in an amount equal to its Pro Rata Revolving Share of the Unreimbursed
Amount not later than 3:00 p.m. on the Business Day specified in such
notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.04(c)(iii), each Revolving Lender that so
makes funds available shall be deemed to have made a Base Rate Revolving Loan
to the Borrower in such amount. The Administrative Agent shall remit the funds
so received to the L/C Issuer in Dollars.


(iii)      With respect to any Unreimbursed Amount
that is not fully refinanced by a Revolving Borrowing of Base Rate Loans
because the conditions set forth in Section 5.02
cannot be satisfied or for any other reason, the Borrower shall be deemed to
have incurred from the L/C Issuer an L/C—BA Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C—BA Borrowing shall be
due and payable on demand (together with interest) and shall bear interest at
the Default Rate. In such event, each Revolving Lender’s payment to the
Administrative Agent for the account of the L/C Issuer pursuant to Section 2.04(c)(ii) shall be deemed payment in
respect of its participation in such L/C—BA Borrowing and shall constitute an
L/C—BA Advance from such Revolving Lender in satisfaction of its participation
obligation under this Section 2.04.



 A-48
 









(iv)       Until
each Revolving Lender funds its Revolving Loan or L/C—BA Advance pursuant to
this Section 2.04(c) to reimburse
the L/C Issuer for any amount drawn under any Letter of Credit or payments made
on any Bankers’ Acceptance, interest in respect of such Revolving Lender’s Pro
Rata Revolving Share of such amount shall be solely for the account of the L/C
Issuer.


(v)        Each
Revolving Lender’s obligation to make Revolving Loans or L/C—BA Advances to
reimburse the L/C Issuer for amounts drawn under Letters of Credit and payments
made on Bankers’ Acceptances, as contemplated by this Section 2.04(c),
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any set-off, counterclaim, recoupment, defense
or other right which such Revolving Lender may have against the L/C Issuer, the
Borrower or any other Person for any reason whatsoever; (B) the occurrence
or continuance of a Default, or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided,
however, that each Revolving Lender’s
obligation to make Revolving Loans pursuant to this Section 2.04(c) is
subject to the conditions set forth in Section 5.02
(other than delivery by the Borrower of a Revolving Loan Notice). No such
making of an L/C—BA Advance shall relieve or otherwise impair the obligation of
the Borrower to reimburse the L/C Issuer for the amount of any payment made by
the L/C Issuer under any Letter of Credit or Bankers’ Acceptance, together with
interest as provided herein.


(vi)       If any
Revolving Lender fails to make available to the Administrative Agent for the
account of the L/C Issuer any amount required to be paid by such Revolving
Lender pursuant to the foregoing provisions of this Section 2.04(c) by
the time specified in Section 2.04(c)(ii),
the L/C Issuer shall be entitled to recover from such Revolving Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon
for the period from the date such payment is required to the date on which such
payment is immediately available to the L/C Issuer at a rate per annum equal to
the applicable Overnight Rate from time to time in effect, plus
any administrative, processing or similar fees customarily charged by the L/C
Issuer in connection with the foregoing. A certificate of the L/C Issuer
submitted to any Revolving Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (vi) shall be conclusive
absent manifest error.


(d)        Repayment of Participations.


(i)         At
any time after the L/C Issuer has made a payment under any Letter of Credit or
Bankers’ Acceptance and has received from any Revolving Lender such Revolving
Lender’s L/C—BA Advance in respect of such payment in accordance with Section 2.04(c), if the Administrative Agent receives
for the account of the L/C Issuer any payment in respect of the related
Unreimbursed Amount or interest thereon (whether directly from the Borrower or
otherwise, including proceeds of Cash Collateral applied thereto by the
Administrative Agent), the Administrative Agent will distribute to such
Revolving Lender its Pro Rata Revolving Share thereof in Dollars (appropriately
adjusted, in the case of interest payments, to reflect the period of time
during which such Revolving Lender’s L/C—BA Advance was outstanding) and in the
same funds as those received by the Administrative Agent.


(ii)       If any
payment received by the Administrative Agent for the account of the L/C Issuer
pursuant to Section 2.04(c)(i) is required
to be returned under any of the circumstances described in Section 11.05
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Revolving Lender shall pay to the Administrative Agent for
the account of the L/C Issuer its Pro Rata Revolving Share thereof on demand of
the Administrative Agent, plus interest thereon from the date of such demand to
the date such amount is returned by such Revolving Lender, at a rate per annum
equal to the applicable Overnight Rate from time to time in effect. The
obligations of the Revolving Lenders under this clause shall survive the
payment in full of the Obligations and the termination of this Agreement.



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


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


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


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


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


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


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


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


(f)         Role of L/C Issuer.   Each Revolving Lender and the
Borrower agree that, in paying any drawing under a Letter of Credit or making
any payment under a Bankers’ Acceptance, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable to any
Lender for (i) any action taken or omitted in connection herewith at the
request or with the approval of the Revolving Lenders or the Required Revolving
Lenders, as applicable; (ii) any action taken or omitted in the absence of
gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related
to any Letter of Credit, Bankers’ Acceptance or Issuer Document. 



 A-50
 









The Borrower hereby
assumes all risks of the acts or omissions of any beneficiary or transferee
with respect to its use of any Letter of Credit or Bankers’ Acceptance; provided, however, that
this assumption is not intended to, and shall not, preclude the Borrower’s
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties, nor any
correspondent, participant or assignee of the L/C Issuer, shall be liable or
responsible for any of the matters described in clauses (i) through
(vi) of Section 2.04(e);
provided, however,
that anything in such clauses to the contrary notwithstanding, the Borrower may
have a claim against the L/C Issuer, and the L/C Issuer may be liable to the
Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which the Borrower
proves were caused by the L/C Issuer’s willful misconduct or gross negligence
or the L/C Issuer’s willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s) strictly
complying with the terms and conditions of a Letter of Credit or to honor any
Bankers’ Acceptance presented for payment in strict compliance with its terms
and conditions. In furtherance and not in limitation of the foregoing, the L/C
Issuer may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary, and the L/C Issuer shall not be responsible for
the validity or sufficiency of any instrument endorsing, transferring or
assigning or purporting to endorse, transfer or assign a Letter of Credit or
Bankers’ Acceptance or the rights or benefits thereunder or proceeds thereof,
in whole or in part, which may prove to be invalid or ineffective for any
reason.


(g)        Cash Collateral.   Upon the request of the
Administrative Agent, (i) if the L/C Issuer has honored any full or
partial drawing request under any Letter of Credit or made any payment under
any Bankers’ Acceptance and such drawing has resulted in an L/C—BA Borrowing,
or (ii) if, as of the Letter of Credit—BA Expiration Date, any Letter of
Credit for any reason remains outstanding and partially or wholly undrawn, any
Bankers’ Acceptance for any reason remains outstanding, or any L/C—BA
Obligation for any reason remains outstanding, then in each such case the
Borrower shall immediately Cash Collateralize the then Outstanding Amount of
all L/C—BA Obligations (in an amount equal to such Outstanding Amount
determined as of the date of such L/C—BA Borrowing or the Letter of Credit—BA
Expiration Date, as the case may be). The Administrative Agent may, at any time
and from time to time after the initial deposit of Cash Collateral, request
that additional Cash Collateral be provided in order to protect against the
results of exchange rate fluctuations. Sections 2.06
and 9.02(c) set forth certain
additional requirements to deliver Cash Collateral hereunder. For purposes
hereof, “Cash
Collateralize” means to pledge and deposit with or deliver to
the Administrative Agent, for the benefit of the L/C Issuer and the Revolving
Lenders, as collateral for the L/C—BA Obligations, cash or deposit account
balances pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the L/C Issuer (which documents are hereby consented
to by the Revolving Lenders). Derivatives of such term have corresponding
meanings. The Borrower hereby grants to the Administrative Agent, for the
benefit of the L/C Issuer and the Revolving  Lenders,
a security interest in all such cash, deposit accounts and all balances therein
and all proceeds of the foregoing. Cash collateral shall be maintained in
blocked, interest bearing deposit accounts at Bank of America.


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


(i)         Letter of Credit—BA Fees.   Subject to the provisions of
the last sentence of this subsection (i), the Borrower shall pay to the
Administrative Agent for the account of each Revolving Lender in accordance
with its Pro Rata Revolving Share, in Dollars, (i) a Letter of Credit—BA Fee for each 



 A-51
 









commercial
Letter of Credit and each Bankers’ Acceptance equal to 50% of the Applicable
Rate times the Dollar Equivalent of the daily
maximum amount available to be drawn under such Letter of Credit (whether or
not such maximum amount is then in effect under such Letter of Credit) or the
maximum stated amount of such Bankers’ Acceptance, as the case may be, and (ii) a
Letter of Credit—BA Fee for each standby
Letter of Credit equal to the Applicable Rate times
the Dollar Equivalent of the daily amount available to be drawn under such
Letter of Credit (whether or not such maximum amount is then in effect under
such Letter of Credit). For purposes of computing the daily amount available to
be drawn under any Letter of Credit, the amount of such Letter of Credit shall
be determined in accordance with Section 1.10.
Such Letter of Credit—BA Fees shall be computed on a quarterly basis in arrears.
Such Letter of Credit—BA Fees accrued through the last day of each fiscal
quarter of the Borrower and shall be due and payable on the fifteenth (or the
next Business Day after the fifteenth, if the fifteenth is not a Business Day)
of each January, April, July and
October, commencing with the first such date to occur after the issuance
of such Letter of Credit or Bankers’ Acceptance (as the case may be), on the
Letter of Credit—BA Expiration Date and thereafter on demand. If there is any
change in the Applicable Rate during any quarter, the daily maximum amount of
each Letter of Credit and Bankers’ Acceptance shall be computed and multiplied
by the Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect. At all times that the Default Rate shall be
applicable to any Loans pursuant to Section 2.09(b),
the Letter of Credit—BA Fees payable under this subsection (i) shall
accrue and be payable at the Default Rate.


(j)         Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer.   The Borrower shall pay directly to the L/C Issuer for
its own account, in Dollars, a fronting fee with respect to each Letter of
Credit and each Bankers’ Acceptance issued by the L/C Issuer in the amount of
0.125% times the Dollar Equivalent of the daily
maximum amount available to be drawn under such Letter of Credit (whether or
not such maximum amount is then in effect under such Letter of Credit) or the
maximum stated amount of such Bankers’ Acceptance, as the case may be. Such
fronting fees shall be computed on a quarterly basis in arrears. Such fronting
fee shall accrue through the last day of each fiscal quarter of the Borrower
and shall be due and payable on the fifteenth (or the next Business Day after
the fifteenth, if the fifteenth is not a Business Day) of each January, April, July and
October, commencing with the first such date to occur after the issuance of
such Letter of Credit or Bankers’ Acceptance, as applicable, on the Letter of
Credit—BA Expiration Date and thereafter on demand. For purposes of computing
the daily amount available to be drawn under any Letter of Credit, the amount
of such Letter of Credit shall be determined in accordance with Section 1.10. In addition, the Borrower shall pay
directly to the L/C Issuer for its own account, in Dollars, the customary
issuance, presentation, amendment and other processing fees, and other standard
costs and charges, of the L/C Issuer relating to letters of credit and bankers’
acceptances issued by it as from time to time in effect. Such customary fees
and standard costs and charges are due and payable on demand and are
nonrefundable.


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


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



 A-52
 









2.05     Swing Line Loans.


(a)        The Swing Line.   Subject to the terms and conditions
set forth herein, the Swing Line Lender agrees, in reliance upon the agreements
of the other Lenders set forth in this Section 2.05,
to make loans in Dollars (each such loan, a “Swing Line
Loan”) to the Borrower from time to time on any Business Day during
the Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of the Swing Line Sublimit, notwithstanding the fact
that such Swing Line Loans, when aggregated with the Pro Rata Revolving Share
of the Outstanding Amount of Revolving Loans and L/C—BA Obligations of the
Revolving Lender acting as Swing Line Lender, may exceed the amount of such
Revolving Lender’s Revolving Credit Commitment; provided,  however, that
after giving effect to any Swing Line Loan, (i) the Total Revolving
Outstandings shall not exceed the Aggregate Revolving Credit Commitments, and (ii) the
aggregate Outstanding Amount of the Revolving Loans of any Revolving Lender, plus such Revolving Lender’s Pro Rata Revolving Share of the
Outstanding Amount of all L/C—BA Obligations, plus
such Revolving Lender’s Pro Rata Revolving Share of the Outstanding Amount of
all Swing Line Loans shall not exceed such Revolving Lender’s Revolving Credit
Commitment, and provided, further,
that the Borrower shall not use the proceeds of any Swing Line Loan to
refinance any outstanding Swing Line Loan. Within the foregoing limits, and
subject to the other terms and conditions hereof, the Borrower may borrow under
this Section 2.05, prepay under Section 2.06, and reborrow under this Section 2.05. Each Swing Line Loan shall be a Base Rate
Revolving Loan. Immediately upon the making of a Swing Line Loan, each
Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Swing Line Lender a risk participation in such
Swing Line Loan in an amount equal to the product of such Revolving Lender’s
Pro Rata Revolving Share times the
amount of such Swing Line Loan.


(b)        Borrowing Procedures.   Each Swing Line Borrowing shall
be made upon the Borrower’s irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone. Each such notice must be
received by the Swing Line Lender and the Administrative Agent not later than
2:00 p.m. on the requested borrowing date, and shall specify (i) the
amount to be borrowed, which shall be a minimum of $500,000 and integral multiples of $100,000 in excess thereof, and
(ii) the requested borrowing date, which shall be a Business Day. Each
such telephonic notice must be confirmed promptly by delivery to the Swing Line
Lender and the Administrative Agent of a written Swing Line Loan Notice,
appropriately completed and signed by a Responsible Officer of the Borrower. Promptly
after receipt by the Swing Line Lender of any telephonic Swing Line Loan
Notice, the Swing Line Lender will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has also received such
Swing Line Loan Notice and, if not, the Swing Line Lender will notify the
Administrative Agent (by telephone or in writing) of the contents thereof. Unless
the Swing Line Lender has received notice (by telephone or in writing) from the
Administrative Agent (including at the request of any Revolving Lender) prior
to 3:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing
the Swing Line Lender not to make such Swing Line Loan as a result of the
limitations set forth in the proviso to the first sentence of Section 2.05(a), or (B) that one or more of the
applicable conditions specified in Article V
is not then satisfied, then, subject to the terms and conditions hereof, the
Swing Line Lender will, not later than 3:30 p.m. on the borrowing date
specified in such Swing Line Loan Notice, make the amount of its Swing Line
Loan available to the Borrower at its
office by crediting the account of the Borrower on the books of the Swing Line
Lender in Same Day Funds.


(c)        Refinancing of Swing Line Loans.


(i)         The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Borrower (which hereby irrevocably
authorizes the Swing Line Lender to so request on its behalf), that each
Revolving Lender make a Base Rate Revolving Loan in an amount equal to such
Revolving Lender’s Pro Rata Revolving Share of the amount of Swing Line Loans
then outstanding. Such request shall be made in writing (which written request
shall be deemed to be a 



 A-53
 









Revolving Loan
Notice for purposes hereof) and in accordance with the requirements of Section 2.03, without regard to the minimum and
multiples specified therein for the principal amount of Base Rate Loans, but
subject to the unutilized portion of the Aggregate Revolving Credit Commitments
and the conditions set forth in Section 5.02.
The Swing Line Lender shall furnish the Borrower with a copy of the applicable
Revolving Loan Notice promptly after delivering such notice to the
Administrative Agent. Each Revolving Lender shall make an amount equal to its
Pro Rata Revolving Share of the amount specified in such Revolving Loan Notice
available to the Administrative Agent in Same Day Funds for the account of the
Swing Line Lender at the Administrative Agent’s Office for Dollar-denominated
payments not later than 2:00 p.m. on the day specified in such Revolving
Loan Notice, whereupon, subject to Section 2.05(c)(ii),
each Revolving Lender that so makes funds available shall be deemed to have
made a Base Rate Revolving Loan to the Borrower in such amount. The
Administrative Agent shall remit the funds so received to the Swing Line
Lender.


(ii)       If for any reason any Swing Line Loan
cannot be refinanced by such a Revolving Borrowing in accordance with Section 2.05(c)(i), the request for Base Rate Revolving
Loans submitted by the Swing Line Lender as set forth herein shall be deemed to
be a request by the Swing Line Lender that each of the Revolving Lenders fund
its risk participation in the relevant Swing Line Loan and each Revolving
Lender’s payment to the Administrative Agent for the account of the Swing Line
Lender pursuant to Section 2.05(c)(i) shall
be deemed payment in respect of such participation.


(iii)      If any Revolving Lender fails to make
available to the Administrative Agent for the account of the Swing Line Lender
any amount required to be paid by such Revolving Lender pursuant to the
foregoing provisions of this Section 2.05(c) by
the time specified in Section 2.05(c)(i),
the Swing Line Lender shall be entitled to recover from such Revolving Lender
(acting through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the date on
which such payment is immediately available to the Swing Line Lender at a rate
per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative processing or similar fees
customarily charged by the Swing Line Lender in connection with the foregoing. A
certificate of the Swing Line Lender submitted to any Revolving Lender (through
the Administrative Agent) with respect to any amounts owing under this clause (iii) shall
be conclusive absent manifest error.


(iv)       Each Revolving Lender’s obligation to
make Revolving Loans or to purchase and fund risk participations in Swing Line
Loans pursuant to this Section 2.05(c) shall
be absolute and unconditional and shall not be affected by any circumstance,
including (A) any set-off, counterclaim, recoupment, defense or other
right which such Revolving Lender may have against the Swing Line Lender, the
Borrower or any other Person for any reason whatsoever, (B) the occurrence
or continuance of a Default, or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided, however,
that each Revolving Lender’s obligation to make Revolving Loans pursuant to
this Section 2.05(c) is subject to
the conditions set forth in Section 5.02.
No such funding of risk participations shall relieve or otherwise impair the
obligation of the Borrower to repay Swing Line Loans, together with interest as
provided herein.


(d)        Repayment of Participations.


(i)         At any time after any Revolving Lender has purchased and
funded a risk participation in a Swing Line Loan, if the Swing Line Lender
receives any payment on account of such Swing Line Loan, the Swing Line Lender
will distribute to such Revolving Lender its Pro Rata Revolving Share of such
payment (appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such Revolving Lender’s risk participation was
funded) in the same funds as those received by the Swing Line Lender.



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


(e)        Interest for Account of Swing Line Lender.   The Swing
Line Lender shall be responsible for invoicing the Borrower for interest on the
Swing Line Loans. Until each Revolving Lender funds its Base Rate Revolving
Loan or risk participation pursuant to this Section 2.05
to refinance such Revolving Lender’s Pro Rata Revolving Share of any Swing Line
Loan, interest in respect of such Pro Rata Revolving Share shall be solely for
the account of the Swing Line Lender.


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


2.06     Prepayments.


(a)        The
Borrower may, upon notice to the Administrative Agent, at any time or from time
to time voluntarily prepay Loans under the Revolving Credit Facility or either
Term Loan Facility in whole or in part without premium or penalty; provided that (i) such notice must be received by the
Administrative Agent not later than 11:00 a.m. (A) three Business
Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in
Dollars, (B) four Business Days (or five, in the case of prepayment of
Revolving Loans denominated in Special Notice Currencies) prior to any date of
prepayment of Eurocurrency Rate Revolving Loans denominated in Alternative
Currencies, and (C) on the date of prepayment of Base Rate Loans; (ii) any
prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a
principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof; (iii) any prepayment of Eurocurrency Rate Revolving Loans
denominated in Alternative Currencies shall be in a minimum principal amount of
$2,000,000 or a whole multiple of $500,000 in excess thereof; and (iv) any
prepayment of Base Rate Loans under any such credit facility shall be in a
principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof or, in each case, the entire principal amount thereof then outstanding.
Each such notice shall specify the date and amount of such prepayment, the
credit facility to which the prepayment is to be applied, and the Type(s) of
Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the
Interest Period(s) of such Loans. Prepayments of the Term Loans shall be
applied pro rata to remaining installments of the scheduled amortization of the
applicable Term Loan. The Administrative Agent will promptly notify each
applicable Lender of its receipt of each such notice, and of the amount of such
Lender’s ratable share of such prepayment. If such notice is given by the
Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein.
Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued
interest on the amount prepaid, together with any additional amounts required
pursuant to Section 4.05. Each such prepayment
shall be applied to the Loans of the applicable Lenders in accordance with
their Pro Rata Revolving Shares, Pro Rata Term A Shares or Pro Rata Term B
Shares, as applicable.


(b)        The
Borrower may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay
Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the
Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on
the date of the prepayment, and (ii) any such prepayment shall be in a
minimum principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof. 



 A-55
 









Each such notice shall
specify the date and amount of such prepayment. If such notice is given by the
Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified
therein.


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


(d)        If the
Administrative Agent notifies the Borrower at any time that the Outstanding
Amount of all Revolving Loans denominated in Alternative Currencies at such
time exceeds an amount equal to 105% of the Alternative Currency Sublimit then
in effect, then, within two Business Days after receipt of such notice, the
Borrower shall prepay Revolving Loans (or, if necessary, Cash Collateralize
Letters of Credit) in an aggregate amount sufficient to reduce such Outstanding
Amount as of such date of payment  to an amount
not to exceed 100% of the Alternative Currency Sublimit then in effect.


(e)        In
addition to any required payments of principal of the Term Loans and any
optional payments of principal of the Term Loans and the Revolving Loans
effected under subsection (a) above, no
later than 30 calendar days following the receipt of any Net Cash Proceeds from
any Disposition permitted by Section 8.05(e),
the Borrower shall deliver to the Administrative Agent a calculation of the
amount of such Net Cash Proceeds and the Borrower shall make, or shall cause
each applicable Restricted Subsidiary to make, a prepayment to the
Administrative Agent, for the benefit of the applicable Lenders, of the
Outstanding Amount of the Term Loans in an amount equal to one hundred percent
(100%) of such Net Cash Proceeds in excess of $25,000,000 in any fiscal year; provided that no mandatory prepayment on account of such Net
Cash Proceeds shall be required under this Section 2.06(e) if
the Borrower informs the Administrative Agent no later than 30 days following
the receipt of such Net Cash Proceeds of its or its Restricted Subsidiary’s
good faith intention to apply such Net Cash Proceeds to the acquisition of
other assets or property consistent with the Core Business (including by way of
merger or investment) within eighteen months following the receipt of such Net
Cash Proceeds, with the amount of such Net Cash Proceeds unused after such
eighteen-month period being required to applied to such prepayment on the last
day of such eighteen-month period. Each prepayment of the Term Loans required
under this Section 2.06(e) shall be
applied to the Term Loan A and the Term Loan B on a pro rata basis in
accordance with the Outstanding Amounts thereof at such time, and within each
such Term Loan Facility pro rata across remaining installments of the scheduled
amortization of such Term Loan Facility (including the scheduled payment of all
remaining Outstanding Amounts of the applicable Term Loan on the Term Loan
Maturity Date); provided that any Term Loan B
Lender may reject any such mandatory prepayment in whole, with the aggregate
amount of all such rejections by Term Loan B Lenders applied to Outstanding
Amounts of the Term Loan A pro rata across remaining installments of the Term
Loan A Facility, with any excess amount from all such rejections (in the event
all such rejections are more than the aggregate Outstanding Amount of the Term
Loan A at such time) to be applied to the Outstanding Amount of the Term Loan B
pro rata among the rejecting Term Loan B Lenders and pro rata across remaining
installments of the Term Loan B Facility.


(f)         Any
prepayment of a Eurocurrency Rate Loan under this Section 2.06
shall be accompanied by all accrued interest thereon, together with any
additional amounts required pursuant to Section 4.05.
Each prepayment under this Section 2.06
shall be applied to the Loans of the applicable Lenders in accordance with
their Pro Rata Term A Shares, Pro Rata Term B Shares or Pro Rata Revolving
Shares, as applicable.



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2.07     Termination
or Reduction of Commitments.   The Borrower may, upon
notice to the Administrative Agent, terminate the Aggregate Revolving Credit
Commitments, or from time to time permanently reduce the Aggregate Revolving
Credit Commitments; provided that (i) any
such notice shall be received by the Administrative Agent not later than 11:00 a.m.
five Business Days prior to the date of termination or reduction, (ii) any
such partial reduction shall be in an aggregate amount of $5,000,000 or any
whole multiple of $1,000,000 in excess thereof, or the entire remaining
Aggregate Revolving Credit Commitments, (iii) the Borrower shall not
terminate or reduce the Aggregate Revolving Credit Commitments if, after giving
effect thereto and to any concurrent prepayments hereunder, the Total Revolving
Outstandings would exceed the Aggregate Revolving Credit Commitments, and (iv) if,
after giving effect to any reduction of the Aggregate Revolving Credit
Commitments, the Alternative Currency Sublimit, the Letter of Credit—BA
Sublimit or the Swing Line Sublimit exceeds the amount of the Aggregate
Revolving Credit Commitments, such sublimit shall be automatically reduced by
the amount of such excess. The Administrative Agent will promptly notify the
Lenders of any such notice of termination or reduction of the Aggregate
Revolving Credit Commitments. The amount of any such Aggregate Revolving Credit
Commitment reduction shall not be applied to the Alternative Currency Sublimit
or the Letter of Credit Sublimit unless otherwise specified by the Borrower. Any
reduction of the Aggregate Revolving Credit Commitments shall be applied to the
Revolving Credit Commitment of each Revolving Lender according to its Pro Rata
Revolving Share. All commitment fees accrued until the effective date of any
termination of the Aggregate Revolving Credit Commitments shall be paid on the
effective date of such termination.


2.08     Repayment
of Loans.


(a)        The
Borrower shall repay to the Revolving Lenders on the Revolving Credit Maturity
Date the aggregate principal amount of Revolving Loans outstanding on such
date.


(b)        The
Borrower shall repay each Swing Line Loan on the earlier to occur of
(i) the date ten Business Days after such Loan is made and (ii) the
Revolving Credit Maturity Date.


(c)        The
Borrower shall repay the principal amount of the Term Loan A in eleven (11)
consecutive quarterly installments equal to $3,750,000 on the last Business Day
of each March, June, September and December, commencing on the last
Business Day of September 2009, and in a final installment equal to the
aggregate Outstanding Amount of the Term Loan A on the Term Loan A Maturity
Date, in each case subject to adjustments for prepayments made pursuant to Section 2.06 and subject to pro rata increases for each
exercise with respect to the Term Loan A of the increase option provided in Section 2.15.


(d)        The
Borrower shall repay the principal amount of the Term Loan B in twenty-seven
(27) consecutive quarterly installments equal to $1,412,500 on the last
Business Day of each March, June, September and December, commencing on
the last Business Day of September 2007, and in a final installment equal
to the aggregate Outstanding Amount of the Term Loan B on the Term Loan B
Maturity Date, in each case subject to adjustments for prepayments made
pursuant to Section 2.06 and subject to pro
rata increases for each exercise with respect to the Term Loan B of the
increase option provided in Section 2.15.



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2.09     Interest.


(a)        Subject
to the provisions of subsection (b) below,
(i) each Eurocurrency Rate Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to
the Eurocurrency Rate for such Interest Period plus
the Applicable Rate plus (in the
case of a Eurocurrency Rate Loan of any Lender which is lent from a Lending
Office in the United Kingdom or a Participating Member State) the Mandatory
Cost; (ii) each Base Rate Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Base Rate plus the
Applicable Rate; and (iii) each Swing Line Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a
rate per annum equal to the Base Rate plus the
Applicable Rate.


(b)        If any
amount payable by the Borrower under any Loan Document is not paid when due
(without regard to any applicable grace periods), whether at stated maturity,
by acceleration or otherwise, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws. Furthermore, while any Event
of Default exists, the Borrower shall pay interest, at a fluctuating interest
rate per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws, on the principal amount of all (a) outstanding
Obligations under the Revolving Credit Facility upon the affirmative vote of the Required Revolving Lenders, (b) outstanding
Obligations under the Term Loan A
Facility upon the affirmative vote of the Required Term Loan A Lenders, (c) outstanding
Obligations under the Term Loan B
Facility upon the affirmative vote of the Required Term Loan B Lenders and (d) other
Obligations hereunder upon the affirmative vote of the Required Lenders.
Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.


(c)        Interest
on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest
hereunder shall be due and payable in accordance with the terms hereof before
and after judgment, and before and after the commencement of any proceeding
under any Debtor Relief Law.


(d)        For
the purposes of the Interest Act (Canada), (i) whenever a rate of interest
or fee rate hereunder is calculated on the basis of a year (the “deemed year”)
that contains fewer days than the actual number of days in the calendar year of
calculation, such rate of interest or fee rate shall be expressed as a yearly
rate by multiplying such rate of interest or fee rate by the actual number of
days in the calendar year of calculation and dividing it by the number of days
in the deemed year, (ii) the principle of deemed reinvestment of interest
shall not apply to any interest calculation hereunder and (iii) the rates
of interest stipulated herein are intended to be nominal rates and not
effective rates or yields.


2.10     Fees.   In
addition to certain fees described in subsections (i) and
(j) of Section 2.04:


(a)        Commitment Fee.   The Borrower shall pay to the
Administrative Agent for the account of each Revolving Lender in accordance
with its Pro Rata Revolving Share, a commitment fee (the “Commitment Fee”) in
Dollars equal to the Applicable Rate times the
actual daily amount by which the Aggregate Revolving Credit Commitments exceed
the sum of (i) the Outstanding Amount of Revolving Loans and (ii) the
Outstanding Amount of L/C—BA Obligations. The Commitment Fee shall accrue at
all times during the Availability Period, including at any time during which
one or more of the conditions in Article V
is not met, and the amount accrued through the end of each fiscal quarter of
the Borrower shall be due and payable in arrears on the fifteenth (or the next
Business Day after the fifteenth, if the fifteenth is not a Business Day) of
each January, April, July and October, commencing with the first such date
to occur after the Closing Date, and on the Revolving Credit Maturity Date. The
Commitment Fee shall be calculated quarterly in arrears, and if there is any
change in the Applicable Rate during any quarter, the actual daily amount shall
be computed and multiplied by the Applicable Rate separately for each period
during such quarter that such Applicable Rate was in effect.



 A-58
 









(b)        Other Fees.   The Borrower shall pay to the Arrangers,
the Administrative Agent and each of the Lenders, for their own respective
accounts, in Dollars, such fees as shall have been separately agreed upon in
writing (including in the Bank of America Fee Letter and the JPMorgan Fee
Letter, as applicable) in the amounts and at the times so specified, including
an annual administrative fee payable to the Administrative Agent. Such fees
shall be fully earned when paid and shall not be refundable for any reason
whatsoever.


2.11     Computation
of Interest and Fees; Retroactive
Adjustments of Applicable Rate.   (a) All computations of
interest for Base Rate Loans when the Base Rate is determined by Bank of
America’s “prime rate” shall be made on the basis of a year of 365 or 366 days,
as the case may be, and actual days elapsed. All other computations of fees and
interest shall be made on the basis of a 360-day year and actual days
elapsed (which results in more fees or interest, as applicable, being paid than
if computed on the basis of a 365-day year) or, in the case of interest
in respect of Loans denominated in Alternative Currencies as to which market
practice differs from the foregoing, in accordance with such market practice. Interest
shall accrue on each Loan for the day on which the Loan is made, and shall not
accrue on a Loan, or any portion thereof, for the day on which the Loan or such
portion is paid, provided that any Loan that is repaid on the same day on which
it is made shall, subject to Section 2.13(a),
bear interest for one day. Each determination by the Administrative Agent of an
interest rate or fee hereunder shall be conclusive and binding for all
purposes, absent manifest error.


(b)        If, as
a result of any restatement of or other adjustment to the financial statements
of the Borrower or for any other reason, the Borrower or the Lenders determine
that (i) the Consolidated Leverage Ratio as calculated by the Borrower as
of any applicable date was inaccurate and (ii) a proper calculation of the
Consolidated Leverage Ratio would have resulted in higher pricing for such
period, the Borrower shall immediately and retroactively be obligated to pay to
the Administrative Agent for the account of the applicable Lenders, promptly on
demand by the Administrative Agent (or, after the occurrence of an actual or
deemed entry of an order for relief with respect to the Borrower under the
Bankruptcy Code of the United States, automatically and without further action
by the Administrative Agent, any Lender or the L/C Issuer), an amount equal to
the excess of the amount of interest and fees that should have been paid for
such period over the amount of interest and fees actually paid for such period.
This paragraph shall not limit the rights of the Administrative Agent, any
Lender or the L/C Issuer, as the case may be, under Section 2.04(c)(iii),
2.04(i) or 2.09(b) or
under Article IX. The Borrower’s
obligations under this paragraph shall survive the termination of the Aggregate
Commitments and the repayment of all other Obligations hereunder.


2.12     Evidence
of Debt.


(a)        The
Credit Extensions made by each Lender shall be evidenced by one or more
accounts or records maintained by such Lender and by the Administrative Agent
in the ordinary course of business. The accounts or records maintained by the
Administrative Agent and each Lender shall be conclusive absent manifest error
of the amount of the Credit Extensions made by the Lenders to the Borrower and
the interest and payments thereon. Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Obligations. In
the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall
control in the absence of manifest error. Upon the request of any Lender made
through the Administrative Agent, the Borrower shall execute and deliver to
such Lender (through the Administrative Agent) a Note, which shall evidence
such Lender’s Loans in addition to such accounts or records. Each Lender may
attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount, currency and maturity of its Loans and payments with
respect thereto.



 A-59
 









(b)        In
addition to the accounts and records referred to in subsection (a), each Lender
and the Administrative Agent shall maintain in accordance with its usual
practice accounts or records evidencing the purchases and sales by such Lender
of participations in Letters of Credit and Swing Line Loans. In the event of
any conflict between the accounts and records maintained by the Administrative
Agent and the accounts and records of any Lender in respect of such matters,
the accounts and records of the Administrative Agent shall control in the
absence of manifest error.


(c)        Entries
made in good faith by the Administrative Agent in the Register pursuant to Section 2.12(b), and by each Lender in its account or
accounts pursuant to Section 2.12(a),
shall be prima facie evidence of the amount of principal and interest due and
payable or to become due and payable from the Borrower to, in the case of the
Register, each Lender and, in the case of such account or accounts, such
Lender, under this Agreement and the other Loan Documents, absent manifest
error; provided that the failure of the
Administrative Agent or any Lender to make an entry, or any finding that any
entry is incorrect, in the Register or such account or accounts shall not limit
or otherwise affect the Obligations.


2.13     Payments
Generally; Administrative Agent’s Clawback.


(a)        General.   All payments to be made by the Borrower shall
be made without condition or deduction for any counterclaim, defense,
recoupment or setoff. Except as otherwise expressly provided herein and except
with respect to principal of and interest on Loans denominated in an
Alternative Currency, all payments by the Borrower hereunder shall be made to
the Administrative Agent, for the account of the respective Lenders to which
such payment is owed, at the applicable Administrative Agent’s Office in
Dollars and in Same Day Funds not later than 2:00 p.m. on the date
specified herein. Except as otherwise expressly provided herein, all payments
by the Borrower hereunder with respect to principal and interest on Loans
denominated in an Alternative Currency shall be made to the Administrative
Agent, for the account of the respective Lenders to which such payment is owed,
at the applicable Administrative Agent’s Office in such Alternative Currency
and in Same Day Funds not later than the Applicable Time specified by the
Administrative Agent on the dates specified herein. Without limiting the
generality of the foregoing, the Administrative Agent may require that any
payments due under this Agreement be made in the United States. If, for any
reason, the Borrower is prohibited by any Law from making any required payment
hereunder in an Alternative Currency, the Borrower shall make such payment in
Dollars in the Dollar Equivalent of the Alternative Currency payment amount. The
Administrative Agent will promptly distribute to such Lender its ratable share
(or other applicable share as provided herein) of such payment in like funds as
received by wire transfer to such Lender’s Lending Office. All payments
received by the Administrative Agent (i) after 2:00 p.m., in the case
of payments in Dollars, or (ii) after the Applicable Time specified by the
Administrative Agent in the case of payments in an Alternative Currency, shall
be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue. If any payment to be made by the
Borrower shall come due on a day other than a Business Day, payment shall be
made on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be.


(b)        (i) Funding by Lenders; Presumption by Administrative Agent.   Unless
the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing of Eurocurrency Rate Loans (or, in the case of
any Borrowing of Base Rate Loans, prior to 1:00 p.m. on the date of such
Borrowing) that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that
such Lender has made such share available on such date in accordance with Section 2.03 (or, in the case of a Borrowing of Base
Rate Loans, that such Lender has made such share available in accordance with
and at the time required by Section 2.03)
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative




 A-60
 









Agent forthwith on demand
such corresponding amount in Same Day Funds with interest thereon, for each day
from and including the date such amount is made available to the Borrower to
but excluding the date of payment to the Administrative Agent, at (A) in
the case of a payment to be made by such Lender, the Overnight Rate, plus any administrative, processing or similar fees
customarily charged by the Administrative Agent in connection with the
foregoing, and (B) in the case of a payment to be made by the Borrower, the
interest rate applicable to Base Rate Loans; provided
that the Administrative Agent agrees that it shall first make a request (which
request may be telephonic) for payment from such applicable Lender before
making a request with respect thereto to the Borrower. If the Borrower and such
Lender shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such period. If
such Lender pays its share of the applicable Borrowing to the Administrative
Agent, then the amount so paid shall constitute such Lender’s Revolving Loan,
Pro Rata Term A Share of the Term Loan A or Pro Rata Term B Share of the Term
Loan B, as applicable, included in such Borrowing. Any payment by the Borrower
shall be without prejudice to any claim the Borrower may have against a Lender
that shall have failed to make such payment to the Administrative Agent.


(ii)       Payments by Borrower; Presumptions by Administrative Agent.   Unless
the Administrative Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Administrative Agent for the
account of the Lenders or the L/C Issuer hereunder that the Borrower will not
make such payment, the Administrative Agent may assume that the Borrower has
made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders or the L/C Issuer, as the case may
be, the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders or the L/C Issuer, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender or the L/C Issuer, in Same Day Funds with
interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent, at the Overnight Rate.


A notice of the Administrative Agent to any Lender or
the Borrower with respect to any amount owing under this subsection (b) shall
be conclusive, absent manifest error.


(c)        Failure to Satisfy Conditions Precedent.   If any Lender
makes available to the Administrative Agent funds for any Loan to be made by
such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to
the Borrower by the Administrative Agent because the conditions to the
applicable Credit Extension set forth in Article V
are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.


(d)        Obligations of Lenders Several.   The obligations of the
Lenders hereunder to make Revolving Loans, to fund their respective Pro Rata
Term A Shares or Pro Rata Term B Shares of the applicable Term Loan and, to
fund participations in Letters of Credit and Swing Line Loans and to make payments
pursuant to Section 11.04(c) are several
and not joint. The failure of any Lender to make any Revolving Loan, to fund
its Pro Rata Term A Share or Pro Rata Term B Share of the applicable Term Loan,
to fund any participation in Letters of Credit and Swing Line Loans or to make
any payment under Section 11.04(c) on any
date required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the
failure of any other Lender to so make its Revolving Loan, to fund its Pro Rata
Term A Share or Pro Rata Term B Share of the applicable Term Loan, to purchase
its participations in Letters of Credit and Swing Line Loans or to make its
payment under Section 11.04(c).



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(e)        Funding Source.   Nothing herein shall be deemed to
obligate any Lender to obtain the funds for any Loan in any particular place or
manner or to constitute a representation by any Lender that it has obtained or
will obtain the funds for any Loan in any particular place or manner.


2.14     Sharing
of Payments by Lenders.   If any Lender shall, by
exercising any right of setoff or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of the Revolving Loans or the
portion of either Term Loan made by it, or the participations in L/C—BA Obligations
or in Swing Line Loans held by it resulting in such Lender’s receiving payment
of a proportion of the aggregate amount of such Loans or participations and
accrued interest thereon greater than its ratable share thereof as provided
herein, then the Lender receiving such greater proportion shall (a) notify
the Administrative Agent of such fact, and (b) purchase (for cash at face
value) participations in the applicable Revolving Loans and/or portion of the
applicable Term Loan made by it and/or subparticipations in the participations
in L/C—BA Obligations or Swing Line Loans of the other Lenders, as the case may
be, or make such other adjustments as shall be equitable, so that the benefit
of all such payments shall be shared by the applicable Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans, portion of the applicable Term Loan and/or
other amounts owing them, provided that:


(i)         if
any such participations or subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the
extent of such recovery, without interest; and


(ii)       the
provisions of this Section shall not be construed to apply to (x) any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or (y) any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Revolving Loans, portion of either Term Loan or subparticipations in L/C—BA
Obligations or Swing Line Loans to any assignee or participant, other than to
the Borrower or any Subsidiary thereof (as to which the provisions of this Section shall
apply).


The Borrower consents
to the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of setoff and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.


2.15     Increase
in Term Loan Facilities.


(a)        Request for Increase.   Provided there exists no
Default, upon notice to the Administrative Agent (which shall promptly notify
the applicable Term Lenders), the Borrower may from time to time request an
increase in the aggregate amount of the Term Loan A or of the Term Loan B, or
both, by an amount (for all such requests) not exceeding $500,000,000; provided that any such request for an increase shall be in a
minimum amount of $100,000,000 in the aggregate or, if less, the entire
unutilized amount of the maximum amount of all such requests set forth above
(but with not less than $25,000,000, or the entire unutilized maximum amount,
if less, being requested for either the Term Loan A or the Term Loan B in any
such request). At the time of sending such notice, the Borrower (in
consultation with the Administrative Agent) shall specify the time period
within which each applicable Term Lender is requested to respond (which shall
in no event be less than ten Business Days from the date of delivery of such
notice to the applicable Term Lenders).


(b)        Term Lender Elections to Increase.   Each applicable
Term Lender shall notify the Administrative Agent within such time period
whether or not it agrees to commit to a portion of the requested increase of
the applicable Term Loan Facility and, if so, whether by an amount equal to,
greater than, or less than its Pro Rata Term A Share (calculated as of the Term
Loan A prior to such increase) or Pro Rata Term B Share (calculated as of the
Term Loan B prior to such increase) of such requested 



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increase. Any Term Lender
not responding within such time period shall be deemed to have declined to
commit to any portion of the requested increase.


(c)        Notification by Administrative Agent; Additional Term Lenders.   The
Administrative Agent shall notify the Borrower and each applicable Term Lender
of the Term Lenders’ responses to each request made hereunder. To achieve the
full amount of a requested increase and subject to the approval of the
Administrative Agent (which approval shall not be unreasonably withheld), the
Borrower may also invite additional Eligible Assignees to become Term Loan A
Lenders or Term Loan B Lenders, as applicable, pursuant to a joinder agreement
in form and substance satisfactory to the Administrative Agent and its counsel.


(d)        Effective Date and Allocations.   If the Term Loan A or
the Term Loan B are increased in accordance with this Section 2.15,
the Administrative Agent and the Borrower shall determine the effective date
(the “Increase Effective Date”) and the final
allocation of such increase. The Administrative Agent shall promptly notify the
Borrower and the applicable Term Lenders of the final allocation of such
increase and the Increase Effective Date.


(e)        Conditions to Effectiveness of Increase.   As a
condition precedent to such increase, the Borrower shall deliver to the
Administrative Agent a certificate of each Loan Party dated as of the Increase
Effective Date (in sufficient copies for each Lender) signed by a Responsible
Officer of such Loan Party (i) certifying and attaching the resolutions
adopted by such Loan Party approving or consenting to such increase, and (ii) in
the case of the Borrower, certifying that, before and after giving effect to
such increase, (A) the representations and warranties contained in Article VI and the other Loan Documents, or which are
contained in any document furnished at any time under or in connection herewith
or therewith, are true and correct on and as of the Increase Effective Date,
except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they are true and correct as of such
earlier date, and except that for purposes of this Section 2.15,
the representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be deemed to refer to the most
recent statements furnished pursuant to clauses (a) and
(b), respectively, of Section 7.01, and (B) no Default exists. The Term
Loans outstanding on the Increase Effective Date shall be reallocated and
adjusted between and among the applicable Lenders, and the Borrower shall pay
any additional amounts required pursuant to Section 4.05
resulting therefrom, to the extent necessary to keep the outstanding applicable
Segments of the Term Loans ratable among the applicable Lenders with any
revised Pro Rata Term A Shares or Pro Rata Term B Shares, as applicable,
arising from any nonratable increase in the applicable Term Loans under this Section 2.15.


(f)         Conflicting Provisions.   This
Section 2.15 shall supersede any
provisions in Section 2.14 or 11.01 to the contrary.


ARTICLE
III.


SECURITY


3.01     Security.   As security
for the full and timely payment and performance of all Obligations, the
Borrower shall, and shall cause all other Loan Parties to, on or before the
Closing Date (or, with respect to certain real property collateral, within the
time provided in the Post-Closing Agreement), do or cause to be done all things
necessary in the opinion of the Administrative Agent and its counsel to grant
to the Administrative Agent for the benefit of the Secured Parties a duly
perfected first priority security interest in all Collateral subject to no
prior Lien or other encumbrance or restriction on transfer, except as expressly
permitted hereunder. Without limiting the foregoing, and to the extent not
previously delivered in connection with the Existing Agreement, on the Closing
Date (or, with respect to certain real property collateral, within the time
provided in the Post-Closing Agreement) the Borrower shall deliver, and shall
cause each Guarantor to deliver, to the Administrative Agent, in form and
substance reasonably 



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acceptable to the
Administrative Agent, (a) if such party has rights in any Pledged
Interests (i) the Pledge Agreement which shall pledge all of the Pledged
Interests held by such party to the Administrative Agent for the benefit of the
Secured Parties, and (ii) if such Pledged Interests are in the form of
certificated securities, such certificated securities, together with undated
stock powers or other appropriate transfer documents indorsed in blank pertaining
thereto, (b) the Security Agreement, which shall pledge to the
Administrative Agent for the benefit of the Secured Parties certain personal
property of the Borrower and the Guarantors more particularly described
therein, (c) if such party has a fee interest in any of the real property
set forth on Schedule 3.01, which schedule
includes all real property with respect to which a Mortgage has been granted in
connection with the Existing Agreement or as of the Closing Date is required to
be granted hereunder pursuant to the test set forth in Section 3.02(b),
a Mortgage (or amendment or modification to a Mortgage entered into in
connection with the Existing Agreement) with respect thereto and such Mortgaged
Property Support Documents (or amendments or modifications thereto or
endorsements thereof, as appropriate) as the Administrative Agent may request,
and (d) Uniform Commercial Code financing statements in form, substance
and number as requested by the Administrative Agent, reflecting the Lien in
favor of the Secured Parties on the Pledged Interests and all other Collateral,
and shall take such further action and deliver or cause to be delivered such
further documents as required by the Security Instruments or otherwise as the
Administrative Agent may request to effect the transactions contemplated by
this Article III. The Borrower shall
also, and shall cause each Guarantor, to pledge to the Administrative Agent for
the benefit of the Secured Parties (and as appropriate to reaffirm its prior
pledge of) all of the Pledged Interests acquired or created after the Closing
Date and held by such party, or otherwise acquired by such party and not
theretofore pledged to the Administrative Agent for the benefit of the Secured
Parties, and to deliver to the Administrative Agent all of the documents and
instruments in connection therewith as are required pursuant to the terms of Section 7.12 and of the Security Instruments.


3.02     Further
Assurances.


(a)        At the
request of the Administrative Agent, the Borrower will or will cause all other
Loan Parties, as the case may be, from time to time to execute, by its duly
authorized officers, alone or with the Administrative Agent, any certificate,
instrument, financing statement, control agreement, statement or document, or
to procure any such certificate, instrument, statement or document, or to take
such other action (and pay all connected costs) which the Administrative Agent
reasonably deems necessary from time to time to create, continue or preserve
the liens and security interests in Collateral (and the perfection and priority
thereof) of the Administrative Agent contemplated hereby and by the other Loan
Documents and specifically including all Collateral acquired by the Borrower or
other Loan Party after the Closing Date.


(b)        Without
limiting the generality of the foregoing subsection (a), in the event that the
Borrower or any Loan Party (or any Domestic Subsidiary that is required to be a
Loan Party pursuant to the terms of this Agreement) shall acquire (including as
a result of the creation or acquisition of a Restricted Subsidiary or an
existing Subsidiary becoming a Restricted Subsidiary, in each case in
accordance with the terms of this Agreement) any fee interest in real property
having a fair market value as determined in good faith by the Administrative
Agent or the Borrower in excess of $10,000,000 in the aggregate, the Borrower
or the applicable Domestic Subsidiary shall, promptly after such acquisition,
execute and deliver to the Administrative Agent a Mortgage in favor of the
Administrative Agent, as mortgagee for the ratable benefit of the Lenders, and
provide the Administrative Agent with evidence of the completion (or reasonably
satisfactory arrangements for the completion) of all recordings and filings of
such Mortgage as may be necessary or, in the reasonable opinion of the
Administrative Agent, desirable to effectively create a valid, perfected, first
priority Lien, subject to Liens permitted by Section 8.01(a),
(c), (d), (g), (h), (i) or (j), against
the properties purported to be covered thereby, including evidence of the
payment of any filing or recordation fees or taxes, and deliver to the
Administrative Agent such Mortgaged 



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Property Support Documents
as the Administrative Agent may request with respect to the property purported
to be covered by such Mortgage.


(c)        Without
limiting the generality of the foregoing subsection (a), prior to entering into
any new lease of real property or renewing any existing lease of real property
following the Closing Date, the Borrower shall, and shall cause each of its
Domestic Subsidiaries that are or are required to be Loan Parties to, use its
(and their) best efforts (which shall not require the expenditure of cash or
the making of any material concessions under the relevant lease) to deliver to
the Administrative Agent a waiver, in form and substance reasonably
satisfactory to the Administrative Agent, executed by the lessor of any real
property that is to be leased by the Borrower or such Domestic Subsidiary for a
term in excess of one year in any state which by statute grants such lessor a “landlord’s”
(or similar) Lien which is superior to the Administrative Agent’s, to the
extent the value of any personal property of the Borrower and its Domestic
Subsidiaries that are Restricted Subsidiaries held or to be held at such leased
property exceeds (or it is anticipated that the value of such personal property
will, at any point in time during the term of such leasehold term, exceed)
$12,000,000.


(d)        The
Administrative Agent is hereby irrevocably authorized to execute (if necessary)
and file or cause to be filed, with or if permitted by applicable law without
the signature of the Borrower or any Loan Party appearing thereon, all Uniform
Commercial Code financing statements reflecting the Borrower or any other Loan
Party as “debtor” and the Administrative Agent as “secured party”, and
continuations thereof and amendments thereto, as the Administrative Agent
reasonably deems necessary or advisable to give effect to the transactions
contemplated hereby and by the other Loan Documents.


3.03     Information Regarding Collateral.   The
Borrower represents, warrants and covenants that (a) the chief executive
office of the Borrower and each other Person providing Collateral pursuant to a
Security Instrument (each, a “Grantor”) at the Closing Date is located at the address
or addresses specified on Schedule 3.03,
and (b) Schedule 3.03 contains a true and
complete list of (i) the exact legal name, jurisdiction of formation, and
address within the United States of each Grantor and of each other Person that
has effected any merger or consolidation with a Grantor or contributed or
transferred to a Grantor any property constituting Collateral at any time since
January 1, 2002 (excluding Persons making sales in the ordinary course of
their businesses to a Grantor of property constituting inventory in the hands
of such seller), (ii) the exact legal name, jurisdiction of formation,
jurisdiction identification number, and each location of the chief executive
office of each Grantor at any time since January 1, 2002, (iii) each
location within the United States in which material goods constituting
Collateral are located as of the Closing Date (together with the name of each
owner of the property located at such address if not the applicable Grantor,
and a summary description of the relationship between the applicable Grantor
and such Person), and (iv) each trade name, trademark or other trade style
used by any Grantor as of the Closing Date and the purposes for which it is or
was used. The Borrower shall not change, and shall not permit any other Grantor
to change, its name, jurisdiction of formation (whether by reincorporation,
merger or otherwise), the location of its chief executive office or any
location specified in clause (b)(iii) of the immediately preceding
sentence, or use or permit any other Grantor to use, any additional trade name,
trademark or other trade style, except upon giving not less than thirty (30)
days’ prior written notice to the Agent and taking or causing to be taken all
such action at Borrower’s or such other Grantor’s expense as may be reasonably
requested by the Administrative Agent to perfect or maintain the perfection of
the Lien of the Administrative Agent in Collateral.



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ARTICLE
IV.


TAXES, YIELD
PROTECTION AND ILLEGALITY


4.01   Taxes.


(a)        Payments Free of Taxes.   Any and all payments by or on
account of any obligation of the Borrower hereunder or under any other Loan
Document shall be made free and clear of and without reduction or withholding
for any Indemnified Taxes or Other Taxes, provided that
if the Borrower shall be required by applicable law to deduct any Indemnified
Taxes (including any Other Taxes) from such payments, then (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section) the Administrative Agent, Lender or L/C Issuer, as the case may
be, receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall timely pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.


(b)        Payment of Other Taxes by the Borrower.   Without
limiting the provisions of subsection (a) above, the Borrower shall timely
pay any Other Taxes to the relevant Governmental Authority in accordance with
applicable law.


(c)        Indemnification by the Borrower.   The Borrower shall
indemnify the Administrative Agent, each Lender and the L/C Issuer, within 30
days after demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section) paid by the
Administrative Agent, such Lender or the L/C Issuer, as the case may be, and
any penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority.
A certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or the L/C Issuer (with a copy to the Administrative
Agent), or by the Administrative Agent on its own behalf or on behalf of a
Lender or the L/C Issuer, shall be conclusive absent manifest error.


(d)        Evidence of Payments.   As soon as practicable after any
payment of Indemnified Taxes or Other Taxes by the Borrower to a Governmental
Authority, the Borrower shall deliver to the Administrative Agent the original
or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.


(e)        Status of Lenders.   Any Foreign Lender that is entitled
to an exemption from or reduction of withholding tax under the law of the
jurisdiction in which the Borrower is resident for tax purposes, or any treaty
to which such jurisdiction is a party, with respect to payments hereunder or
under any other Loan Document shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent, such properly
completed and executed documentation prescribed by applicable law as will
permit such payments to be made without withholding or at a reduced rate of
withholding. In addition, any Lender, if requested by the Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by
applicable law or reasonably requested by the Borrower or the Administrative
Agent as will enable the Borrower or the Administrative Agent to determine
whether or not such Lender is subject to backup withholding or information
reporting requirements.


Without limiting
the generality of the foregoing, in the event that the Borrower is resident for
tax purposes in the United States, any Foreign Lender shall deliver to the
Borrower and the Administrative Agent (in such number of copies as shall be
requested by the recipient) on or prior to the date on which such Foreign
Lender becomes a Lender under this Agreement (and from time to time thereafter
upon the 



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request
of the Borrower or the Administrative Agent, but only if such Foreign Lender is
legally entitled to do so), whichever of the following is applicable:


(i)         duly
completed copies of Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United States is
a party,


(ii)       duly
completed copies of Internal Revenue Service Form W-8ECI,


(iii)      in the
case of a Foreign Lender claiming the benefits of the exemption for portfolio
interest under section 881(c) of the Code, (x) a certificate to the
effect that such Foreign Lender is not (A) a “bank” within the meaning of
section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of
the Borrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a
“controlled foreign corporation” described in section 881(c)(3)(C) of the
Code and (y) duly completed copies of 
Internal Revenue Service Form W-8BEN, or


(iv)       any
other form prescribed by applicable law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly completed together
with such supplementary documentation as may be prescribed by applicable law to
permit the Borrower to determine the withholding or deduction required to be
made.


(f)         Treatment of Certain Refunds.   If the Administrative
Agent, any Lender or the L/C Issuer determines, in its sole discretion, that it
has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section, it shall pay to the Borrower an
amount equal to such refund (but only to the extent of indemnity payments made,
or additional amounts paid, by the Borrower under this Section with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent, such Lender or the L/C
Issuer, as the case may be, and without interest (other than any interest paid
by the relevant Governmental Authority with respect to such refund), provided that the Borrower, upon the request of the
Administrative Agent, such Lender or the L/C Issuer, agrees to repay the amount
paid over to the Borrower (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the Administrative Agent,
such Lender or the L/C Issuer in the event the Administrative Agent, such
Lender or the L/C Issuer is required to repay such refund to such Governmental
Authority. This subsection shall not be construed to require the Administrative
Agent, any Lender or the L/C Issuer to make available its tax returns (or any
other information relating to its taxes that it deems confidential) to the
Borrower or any other Person.


4.02     Illegality.   If
any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make, maintain or fund Eurocurrency Rate Loans, or
to determine or charge interest rates based upon the Eurocurrency Rate, or any
Governmental Authority has imposed material restrictions on the authority of
such Lender to purchase or sell, or to take deposits of, Dollars or any
Alternative Currency in the applicable interbank market, then, on notice
thereof by such Lender to the Borrower through the Administrative Agent, any
obligation of such Lender to make or continue Eurocurrency Rate Loans in the
affected currency or currencies or, in the case of Eurocurrency Rate Loans in Dollars,
to convert Base Rate Loans to Eurocurrency Rate Loans, shall be suspended until
such Lender notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such determination no longer exist. Upon receipt
of such notice, the Borrower shall, upon demand from such Lender (with a copy
to the Administrative Agent), prepay or, if applicable and such Loans are
denominated in Dollars, convert all Eurocurrency Rate Loans of such Lender to
Base Rate Loans, either on the last day of the Interest Period therefor, if
such Lender may lawfully continue to maintain such Eurocurrency Rate Loans to
such day, or immediately, if such Lender may not lawfully continue to maintain
such Eurocurrency Rate Loans. Upon any such prepayment or conversion, the
Borrower shall also pay accrued interest on the amount so prepaid or converted.



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4.03     Inability
to Determine Rates.   If the Required Lenders determine
that for any reason in connection with any request for a Eurocurrency Rate Loan
or a conversion to or continuation thereof that (a) deposits (whether in
Dollars or an Alternative Currency) are not being offered to banks in the
London interbank eurodollar market for the applicable amount and Interest
Period of such Eurocurrency Rate Loan, (b) adequate and reasonable means
do not exist for determining the Eurocurrency Rate for any requested Interest
Period with respect to a proposed Eurocurrency Rate Loan (whether in Dollars or
an Alternative Currency), or (c) the Eurocurrency Rate for any requested
Interest Period with respect to a proposed Eurocurrency Rate Loan does not
adequately and fairly reflect the cost to such Lenders of funding such Loan,
the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter,
the obligation of the Lenders to make or maintain Eurocurrency Rate Loans in
the affected currency or currencies shall be suspended until the Administrative
Agent (upon the instruction of the Required Lenders) revokes such notice. Upon
receipt of such notice, the Borrower may revoke any pending request for a
Borrowing of, conversion to or continuation of Eurocurrency Rate Loans or,
failing that, will be deemed to have converted such request into a request for
a Borrowing of Base Rate Loans in the amount specified therein.


4.04     Increased
Costs;   Reserves on Eurocurrency Rate Loans.


(a)        Increased Costs Generally.   If any Change in Law shall:


(i)         impose,
modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for
the account of, or credit extended or participated in by, any Lender (except (A) any
reserve requirement
contemplated by Section 4.04(e) and (B) the
requirements of the Bank of England and the Financial Services Authority or the
European Central Bank reflected in the Mandatory Cost, other than as set forth
below) or the L/C Issuer ;


(ii)       subject
any Lender or the L/C Issuer to any tax of any kind whatsoever with respect to
this Agreement, any Letter of Credit, any Bankers’ Acceptance, any
participation in a Letter of Credit or a Bankers’ Acceptance, or any
Eurocurrency Rate Loan made by it, or change the basis of taxation of payments
to such Lender or the L/C Issuer in respect thereof (except for Indemnified
Taxes or Other Taxes covered by Section 4.01
and the imposition of, or any change in the rate of, any Excluded Tax payable
by such Lender or the L/C Issuer);


(iii)      result
in the failure of the Mandatory Cost, as calculated hereunder, to represent the
cost to any Lender of complying with the requirements of the Bank of England
and/or the Financial Services Authority or the European Central Bank in relation
to its making, funding or maintaining Eurocurrency Rate Loans; or


(iv)       impose
on any Lender or the L/C Issuer or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurocurrency Rate Loans
made by such Lender or any Letter of Credit or participation therein;


and the result of any of the foregoing shall be to
increase the cost to such Lender of making or maintaining any Eurocurrency Rate
Loan (or of maintaining its obligation to make any such Loan), or to increase
the cost to such Lender or the L/C Issuer of participating in, issuing or
maintaining any Letter of Credit or Bankers’ Acceptance (or of maintaining its
obligation to participate in or to issue any Letter of Credit or Bankers’
Acceptance), or to reduce the amount of any sum received or receivable by such
Lender or the L/C Issuer hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender or the L/C Issuer, the Borrower will
pay to such Lender or the L/C Issuer, as the case may be, such additional
amount or amounts as will compensate such Lender or the L/C Issuer, as the case
may be, for such additional costs incurred or reduction suffered.



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(b)        Capital Requirements.   If any Lender or the L/C Issuer
determines that any Change in Law affecting such Lender or the L/C Issuer or
any Lending Office of such Lender or such Lender’s or the L/C Issuer’s holding
company, if any, regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender’s or the L/C Issuer’s capital or on
the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a
consequence of this Agreement, the Revolving Credit Commitments of such Lender
or the Loans made by, or participations in Letters of Credit or Bankers’
Acceptances held by, such Lender, or the Letters of Credit or Bankers’
Acceptances issued by the L/C Issuer, to a level below that which such Lender
or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company could
have achieved but for such Change in Law (taking into consideration such Lender’s
or the L/C Issuer’s policies and the policies of such Lender’s or the L/C
Issuer’s holding company with respect to capital adequacy), then from time to
time pursuant to subsection (c) below the Borrower will pay to such Lender
or the L/C Issuer, as the case may be, such additional amount or amounts as
will compensate such Lender or the L/C Issuer or such Lender’s or the L/C
Issuer’s holding company for any such reduction suffered.


(c)        Certificates for Reimbursement.   A certificate of a
Lender or the L/C Issuer setting forth the amount or amounts necessary to
compensate such Lender or the L/C Issuer or its holding company, as the case
may be, as specified in subsection (a) or (b) of this Section and
delivered to the Borrower shall be conclusive absent manifest error. The
Borrower shall pay such Lender or the L/C Issuer, as the case may be, the
amount shown as due on any such certificate within 10 Business Days after
receipt thereof.


(d)        Delay in Requests.   Failure or delay on the part of any
Lender or the L/C Issuer to demand compensation pursuant to the foregoing
provisions of this Section shall not constitute a waiver of such Lender’s
or the L/C Issuer’s right to demand such compensation, provided
that the Borrower shall not be required to compensate a Lender or the L/C
Issuer pursuant to the foregoing provisions of this Section for any
increased costs incurred or reductions suffered more than six months prior to
the date that such Lender or the L/C Issuer, as the case may be, notifies the
Borrower of the Change in Law giving rise to such increased costs or reductions
and of such Lender’s or the L/C Issuer’s intention to claim compensation
therefor (except that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the six-month period referred to above shall
be extended to include the period of retroactive effect thereof).


(e)        Reserves on Eurocurrency Rate Loans.   The Borrower
shall pay to each Lender, as long as such Lender shall be required to maintain
reserves with respect to liabilities or assets consisting of or including
Eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”), additional
interest on the unpaid principal amount of each Eurocurrency Rate Loan equal to
the actual costs of such reserves allocated to such Loan by such Lender (as
determined by such Lender in good faith, which determination shall be
conclusive), which shall be due and payable on each date on which interest is
payable on such Loan, provided the
Borrower shall have received at least 10 days’ prior notice (with a copy to the
Administrative Agent) of such additional interest from such Lender. If a Lender
fails to give notice 10 days prior to the relevant Interest Payment Date, such
additional interest shall be due and payable 10 days from receipt of such
notice.


4.05     Compensation
for Losses.   Upon demand of any Lender (with a copy to
the Administrative Agent) from time to time, the Borrower shall promptly
compensate such Lender for and hold such Lender harmless from any loss, cost or
expense incurred by it as a result of:


(a)        any
continuation, conversion, payment or prepayment of any Loan other than a Base
Rate Loan on a day other than the last day of the Interest Period for such Loan
(whether voluntary, mandatory, automatic, by reason of acceleration, or
otherwise);



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(b)        any
failure by the Borrower (for a reason other than the failure of such Lender to
make a Loan) to prepay, borrow, continue or convert any Loan other than a Base
Rate Loan on the date or in the amount notified by the Borrower;


(c)        any
failure by any Borrower to make payment of any Loan or drawing under any Letter
of Credit (or interest due thereon) denominated in an Alternative Currency on
its scheduled due date or any payment thereof in a different currency; or


(d)        any
assignment of a Eurocurrency Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower pursuant to Section 11.13;


including any loss or expense arising from the
liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
The Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.


For purposes of calculating amounts payable by the
Borrower to the Lenders under this Section 4.05,
each Lender shall be deemed to have funded each Eurocurrency Rate Loan made by
it at the  Eurocurrency Rate for such
Loan by a matching deposit or other borrowing in the London interbank
eurodollar market for a comparable amount and for a comparable period, whether
or not such Eurocurrency Rate Loan was in fact so funded.


4.06     Mitigation
Obligations; Replacement of Lenders.


(a)        Designation of a Different Lending Office.   If any
Lender requests compensation under Section 4.04,
or the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 4.01, or if any Lender gives a notice pursuant
to Section 4.02, then such Lender
shall use reasonable efforts to designate a different Lending Office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the
judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 4.01
or 4.04, as the case may be, in the future,
or eliminate the need for the notice pursuant to Section 4.02,
as applicable, and (ii) in each case, would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment.


(b)        Replacement of Lenders.   If any Lender requests
compensation under Section 4.04,
or if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 4.01, the Borrower may replace such Lender in
accordance with Section 11.13.


4.07     Survival.   All of
the Borrower’s obligations under this Article IV
shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.


ARTICLE
V.


CONDITIONS
PRECEDENT TO CREDIT EXTENSIONS


5.01     Conditions
of Initial Credit Extension.   The obligation of the L/C
Issuer and each Lender to make its initial Credit Extension hereunder is
subject to satisfaction of the following conditions precedent:


(a)        The Administrative Agent’s receipt of the following (except
those items that are expressly permitted to be delivered after the Closing Date
pursuant to the Post-Closing Agreement), each of which shall be originals or
facsimiles (followed promptly by originals) unless otherwise specified, each properly
executed by a Responsible Officer of the signing Loan Party, each dated the
Closing Date (or, in the case 



 A-70
 









of certificates of
governmental officials, a recent date before the Closing Date) and each in form
and substance satisfactory to the Administrative Agent and its legal counsel:


(i)         executed counterparts of this Agreement, each of the
Security Instruments and the Guaranty sufficient in number for distribution to
the Administrative Agent, each Lender and the Borrower;


(ii)       Revolving Loan Notes executed by the
Borrower in favor of each Revolving Lender requesting such a Note;


(iii)      Term Loan Notes executed by the Borrower
in favor of each applicable Term Lender requesting such a Note;


(iv)       such certificates of resolutions or other
action, incumbency certificates (including specimen signatures), and/or other
certificates of Responsible Officers of each Loan Party as the Administrative
Agent may require evidencing the identity, authority and capacity of each
Responsible Officer thereof authorized to act as a Responsible Officer in
connection with this Agreement and the other Loan Documents to which such Loan
Party is a party;


(v)        such documents and certifications as the Administrative Agent
may reasonably require to evidence that each Loan Party is duly organized or
formed, and that each of the Borrower and each Guarantor is validly existing,
in good standing and qualified to engage in business in its jurisdiction of
organization and in any other jurisdiction requested by the Administrative
Agent, including certified copies of each Loan Party’s Organization Documents,
shareholders’ agreements, certificates of good standing and/or qualification to
engage in business;


(vi)       a favorable opinion of Simpson Thacher &
Bartlett LLP, counsel to the Loan Parties, and appropriate local counsel to the
Loan Parties, each addressed to the Administrative Agent and each Lender, as to
the matters concerning the Loan Parties and the Loan Documents as the
Administrative Agent or the Required Lenders may reasonably request;


(vii)     certificates of Responsible Officers of the
Borrower or the applicable Loan Parties either (A) identifying all
consents, licenses and approvals required in connection with the execution,
delivery and performance by each Loan Party and the validity against each such
Loan Party of the Loan Documents to which it is a party, and stating that such
consents, licenses and approvals shall be in full force and effect, and
attaching true and correct copies thereof or (B) stating that no such
consents, licenses or approvals are so required;


(viii)    a certificate signed by a Responsible
Officer of the Borrower certifying (A) that the conditions specified in Sections 5.02(a) and (b) have
been satisfied and (B) as to the matters described in Section 5.01(d);


(ix)       evidence satisfactory to the Arrangers of
the consummation, prior to or substantially simultaneously with the occurrence
of the Closing Date, of each of the following, in each case in compliance with
all applicable laws and regulations, with the receipt of all necessary material
governmental, shareholder and third party consents and approvals:  (A) the issuance of the Subordinated
Notes in accordance with the terms of the Subordinated Notes Indenture, and (B) the
repurchase and termination of substantially all of the Existing Subordinated
Notes pursuant to the Existing Subordinated Notes Tender, and (C) the
repurchase and termination of substantially all of the Existing Borrower Notes
pursuant to the Existing Borrower Notes Tender;


(x)        a certificate signed by the Chief Financial Officer or the
Chief Accounting Officer of the Borrower certifying that, after giving effect
to the entering into of the Loan Documents, including this amendment and
restatement of the Existing Agreement, and the consummation of all of the
Transactions, the Borrower and its Subsidiaries, measured on a consolidated
basis, are Solvent;



 A-71
 









(xi)       evidence
that all insurance required to be maintained pursuant to the Loan Documents has
been obtained and is in effect;


(xii)     an
initial Revolving Loan Notice, if any;


(xiii)    an
initial Term Loan Interest Rate Selection Notice with respect to either or both
of the Term Loan Facilities, as applicable, if any;


(xiv)     delivery
of Uniform Commercial Code financing statements, including amendments to
Uniform Commercial Code financing statements filed in connection with the
Existing Agreement, suitable in form and substance for filing in all places
required by applicable law to perfect the Liens of the Administrative Agent
under the Security Instruments as a first priority Lien as to items of
Collateral in which a security interest may be perfected by the filing of
financing statements, and such other documents and/or evidence of other actions
as may be reasonably necessary under applicable law to perfect the Liens of the
Administrative Agent under such Security Instruments as a first priority Lien
in and to such other Collateral as the Administrative Agent may require,
including without limitation the delivery by the Borrower of all certificates
evidencing Pledged Interests, accompanied in each case by duly executed stock
powers (or other appropriate transfer documents) in blank affixed thereto;


(xv)      with
respect to those parcels of real property set forth on Schedule
3.01, a Mortgage (or an amendment or modification to a Mortgage
entered into in connection with the Existing Agreement) and such Mortgaged
Property Support Documents as the Administrative Agent may request;


(xvi)     Uniform
Commercial Code search results showing only those Liens as are acceptable to
the Lenders;


(xvii)   executed
counterparts of the Post-Closing Agreement;


(xviii)  such
other assurances, certificates, documents, consents or opinions as the
Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required
Lenders may reasonably require.


(b)        Any
fees required to be paid on or before the Closing Date shall have been paid.


(c)        Unless
waived by the Administrative Agent, the Borrower shall have paid all reasonable
fees, charges and disbursements of counsel to the Administrative Agent to the
extent invoiced prior to or on the Closing Date, plus such additional amounts
of such reasonable fees, charges and disbursements as shall constitute its
reasonable estimate of such reasonable fees, charges and disbursements incurred
or to be incurred by it through the closing proceedings (provided that such
estimate shall not thereafter preclude a final settling of accounts between the
Borrower and the Administrative Agent).


(d)        The
Administrative Agent shall be satisfied that after giving effect to the initial
Credit Extension hereunder, the remaining amount available to be drawn under
the Revolving Credit Facility shall not be less than $100,000,000.


Without limiting the generality of the provisions of Section 10.04, for purposes of determining compliance
with the conditions specified in this Section 5.01,
each Lender that has signed this Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.


5.02     Conditions to all Credit Extensions.   The
obligation of each Lender to honor any Request for Credit Extension (other than
a Revolving Loan Notice or Term Loan Interest Rate Selection Notice 



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requesting only a
conversion of Revolving Loans or Segments, as applicable, to the other Type or
a continuation of Eurocurrency Rate Loans or Eurocurrency Rate Segments, as
applicable) or make the initial Credit Extension hereunder is subject to the
following conditions precedent:


(a)        The representations and warranties of the Borrower and each
other Loan Party contained in Article VI
or any other Loan Document, or which are contained in any document furnished at
any time under or in connection herewith or therewith, shall be true and
correct on and as of the date of such Credit Extension, except to the extent
that such representations and warranties specifically refer to an earlier date,
in which case they shall be true and correct as of such earlier date, and
except that for purposes of this Section 5.02(a),
the representations and warranties contained in subsections (a) and (b) of
Section 6.05 shall be deemed to
refer to the most recent statements furnished pursuant to clauses (a) and
(b), respectively, of Section 7.01.


(b)        No Default or Event of Default shall have occurred and be
continuing, or would result from such proposed Credit Extension or from the
application of the proceeds thereof.


(c)        The Administrative Agent and, if applicable, the L/C Issuer
or the Swing Line Lender shall have received a Request for Credit Extension in
accordance with the requirements hereof.


(d)        No limitation exists on any Borrowing or Credit Extension
contained in Article II.


(e)        In the case of a Credit Extension to be denominated in an
Alternative Currency, there shall not have occurred any change in national or
international financial, political or economic conditions or currency exchange
rates or exchange controls which in the reasonable opinion of the
Administrative Agent, the Required Revolving Lenders (in the case of any Loans
to be denominated in an Alternative Currency) or the L/C Issuer (in the case of
any Letter of Credit to be denominated in an Alternative Currency) would make
it impracticable for such Credit Extension to be denominated in the relevant
Alternative Currency.


Each Request for Credit
Extension (other than a Revolving Loan Notice or Term Loan Interest Rate
Selection Notice requesting only a conversion of Revolving Loans or Segments,
as applicable, to the other Type or a continuation of Eurocurrency Rate Loans
or Eurocurrency Rate Segments, as applicable) submitted by the Borrower shall
be deemed to be a representation and warranty that the conditions specified in Sections 5.02(a) and (b) have
been satisfied on and as of the date of the applicable Credit Extension.


ARTICLE
VI.


REPRESENTATIONS
AND WARRANTIES


The
Borrower represents and warrants to the Administrative Agent and the Lenders,
subject to the limitation set forth in Section 5.02(a),
that:


6.01     Existence, Qualification and Power;
Compliance with Laws.   Each Loan Party (a) is a
corporation, partnership or limited liability company duly organized or formed,
validly existing and in good standing under the Laws of the jurisdiction of its
incorporation, organization or formation, (b) has all requisite power and
authority and all requisite governmental licenses, authorizations, consents and
approvals to (i) own or lease its assets and carry on its business as is
now being conducted and (ii) execute, deliver and perform its obligations
under the Loan Documents to which it is a party and to consummate the Transactions,
(c) is duly qualified and is licensed and in good standing under the Laws
of each jurisdiction where its ownership, lease or operation of properties or
the conduct of its business requires such qualification or license, and (d) is
in compliance with all Laws; except in each case referred to in clause (b)(i), (c) or
(d), to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.



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6.02     Authorization; No Contravention.   The
execution, delivery and performance by each Loan Party of each Loan Document to
which such Person is party, and the consummation of the Transactions, have been
duly authorized by all necessary corporate or other organizational action, and
do not and will not (a) contravene the terms of the Organization Documents
of any such Person or of any Person whose Equity Interests are being pledged; (b) conflict
with or result in any breach or contravention of, or the creation of any Lien
under (i) any Contractual Obligation to which such Person or any Person
whose Equity Interests are being pledged is a party or (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral award
to which such Person or its property is subject; or (c) violate any Law.


6.03     Governmental Authorization; Other Consents.   No
approval, consent, exemption, authorization, or other action by, or notice to,
or filing with, any Governmental Authority or any other Person is necessary or
required in connection with the execution, delivery or performance by, or
enforcement against, any Loan Party of this Agreement or any other Loan
Document or the consummation of the Transactions.


6.04     Binding Effect.   This
Agreement has been, and each other Loan Document, when delivered hereunder,
will have been, duly executed and delivered by each Loan Party that is party
thereto. This Agreement constitutes, and each other Loan Document when so
delivered will constitute, a legal, valid and binding obligation of such Loan
Party, enforceable against each Loan Party that is party thereto in accordance
with its terms, except (a) as rights to
indemnification hereunder may be limited by applicable Law and (b) as the
enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar Laws relating to or affecting the rights and remedies of
creditors or by general equitable principles.


6.05     Financial Statements; No Material Adverse
Effect.


(a)        The Audited Financial Statements (i) were prepared in
accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein; (ii) fairly present
the financial condition of the Borrower and its Subsidiaries as of the date
thereof and their results of operations for the period covered thereby in
accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein; (iii) show all
material indebtedness and other liabilities, direct or contingent, of the
Borrower and its Subsidiaries as of the date thereof, including liabilities for
taxes, material commitments and Indebtedness.


(b)        The unaudited consolidated balance sheet of the Borrower and
its Subsidiaries dated as of March 31, 2007, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for the
fiscal quarter then ended (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein, and (ii) fairly present the financial condition
of the Borrower and its Subsidiaries as of the date thereof and their results
of operations for the period covered thereby, subject, in the case of clauses
(i) and (ii), to the absence of footnotes and to normal year-end audit
adjustments.


(c)        Since the later of (i) the date of the Audited Financial
Statements and (ii) the date of the most recent audited financial
statements delivered pursuant to Section 7.01(a),
there has been no event or circumstance, either individually or in the
aggregate, that has had or could reasonably be expected to have a Material
Adverse Effect.


(d)        The Borrower and its Subsidiaries, on a consolidated basis,
have no material indebtedness or other liabilities, direct or contingent,
including liabilities for taxes, material commitments and Indebtedness, except
to the extent (i) set forth in the most recent of (A) the Audited
Financial Statements and (B) the financial statements most recently
delivered pursuant to Section 7.01(a) or
(b), (ii) set forth on Schedule 8.03, or (iii) incurred since the date
referred to in subsection (i) hereof in accordance with the terms of this
Agreement and the other Loan Documents.



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6.06     Litigation.   There
are no actions, suits, proceedings, claims or disputes pending or, to the
knowledge of the Borrower after due investigation, threatened or contemplated,
at law, in equity, in arbitration or before any Governmental Authority, by or
against the Borrower or any of its Subsidiaries or against any of their
properties or revenues that (a) purport to affect or pertain to this
Agreement or any other Loan Document or any of the Transactions or (b) except
as specifically disclosed in Schedule 6.06,
either individually or in the aggregate, if determined adversely, could
reasonably be expected to have a Material Adverse Effect, and there has been no
adverse change in the status, or financial effect on any Loan Party or any
Subsidiary thereof, of the matters described on Schedule
6.06 which could reasonably be expected to have a Material Adverse
Effect.


6.07     No
Default.   Neither the Borrower nor any Subsidiary is in
default under or with respect to any Contractual Obligation that could, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. No Default has occurred and is continuing or would result from
the consummation of the transactions contemplated by this Agreement or any
other Loan Document.


6.08     Ownership
of Property; Liens.   Each of the Borrower and each
Subsidiary has good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary
conduct of its business, except for such defects in title as could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect. The
property of the Borrower and its Subsidiaries is subject to no Liens, other
than Liens permitted by Section 8.01.


6.09     Environmental
Compliance.   The Borrower and its Restricted
Subsidiaries conduct in the ordinary course of business a review of the effect
of existing Environmental Laws and claims alleging potential liability or
responsibility for violation of any Environmental Law on their respective
businesses, operations and properties, and as a result thereof the Borrower has
reasonably concluded that, except as set forth on Schedule
6.09, such Environmental Laws and claims could not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.


6.10     Insurance.   The
properties of the Borrower and its Subsidiaries are insured with financially
sound and reputable insurance companies in such amounts, with such deductibles
and covering such risks as are customarily carried by companies engaged in
similar businesses and owning similar properties in localities where the
Borrower or the applicable Subsidiary operates, none of which insurance shall
be provided by any Subsidiary or any other Affiliate of the Borrower.


6.11     Taxes.   The
Borrower and its Subsidiaries have filed all Federal, state and other material
tax returns and reports required to be filed, and have paid all Federal, state
and other material taxes, assessments, fees and other governmental charges
levied or imposed upon them or their properties, income or assets otherwise due
and payable, except those which are being contested in good faith by
appropriate proceedings diligently conducted and for which adequate reserves
have been provided in accordance with GAAP. Except as specifically described on
Schedule 6.11 hereto, there is no
proposed tax assessment against the Borrower or any Subsidiary that would, if
made, have a Material Adverse Effect. Neither any Loan Party nor any Subsidiary
thereof is party to any tax sharing agreement other than the Tax Sharing
Agreement.


6.12     ERISA
Compliance.


(a)        Each
Plan is in compliance in all material respects with the applicable provisions
of ERISA, the Code and other applicable Laws, including Foreign Benefit Laws. Except
as set forth on Schedule 6.12, each Plan that is
intended to qualify under section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a letter
is currently being processed by the IRS with respect thereto or an application
for such letter will be filed within twelve months of the first Plan year for a
newly adopted Plan and, to the best knowledge of the Borrower, nothing has
occurred which would reasonably be expected to prevent, or cause the loss of,
such qualification. Each Plan subject to any 



 A-75
 









Foreign Benefit Law has,
if required under applicable Foreign Benefit Law, received the required
approvals by any Governmental Authority regulating such Plan or an application
for such approvals is currently being processed, except to the extent that the
failure to so obtain such approval could not reasonably be expected to have a
Material Adverse Effect. The Borrower and each ERISA Affiliate have made all
required contributions to each Plan subject to section 412 of the Code, and no
application for a funding waiver or an extension of any amortization period
pursuant to section 412 of the Code has been made with respect to any Plan. The
Borrower has not (i) failed to make a required contribution or payment
with respect to any Foreign Pension Plan, or (ii) otherwise failed to
operate in compliance with any Foreign Pension Plan except to the extent that
the failure to so operate could not reasonably be expected to have a Material
Adverse Effect.


(b)        There
are no pending or, to the best knowledge of the Borrower, threatened claims,
actions or lawsuits, or action by any Governmental Authority, with respect to
any Plan that could reasonably be expected to have a Material Adverse Effect. Neither
the Borrower nor any ERISA Affiliate has engaged in a non-exempt prohibited
transaction or violation of the fiduciary responsibility rules described
in section 4975 of the Code or Part 4 of Title I of ERISA with respect to
any Plan that has resulted or could reasonably be expected to result in a
Material Adverse Effect.


(c)        (i) No
ERISA Event has occurred for which any liability remains unsatisfied or is
reasonably expected to occur; (ii) except to the extent it could
reasonably be expected to have a Material Adverse Effect, no Pension Plan has
any Unfunded Pension Liability; (iii) neither the Borrower nor any ERISA
Affiliate has had imposed on it, or reasonably expects to have imposed on it,
any material liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any material liability (and no event has occurred which, with the giving
of notice under Section 4219 of ERISA, would reasonably be expected to
result in such liability) under Sections 4201 or 4243 of ERISA with respect to
a Multiemployer Plan; and (v) to the knowledge of the Borrower, neither
the Borrower nor any ERISA Affiliate has engaged in a transaction that could be
subject to Sections 4069 or 4212(c) of ERISA.


(d)        Each
Plan governed by any Foreign Benefit Law is (i) funded to at least the
minimum level required by law or, if higher, to the level required by the terms
governing the Plan, (ii) provided for or recognized in the financial
statements most recently delivered to the Administrative Agent or (iii) estimated
in the formal notes to the financial statements most recently delivered to the
Administrative Agent; provided, that
the failure to so fund, provide for, recognize or estimate the liabilities
arising under such Plan shall not be deemed to be a breach of this
representation unless such failure could reasonably be expected to have a
Material Adverse Effect.


6.13     Subsidiaries;
Equity Interests.   The Borrower (a) has no Subsidiaries other than those
specifically disclosed in Schedule 6.13(a) or
created or acquired in compliance with Section 7.12,
and (b) has no equity investments in any other corporation or entity other
than those specifically disclosed Schedule 6.13(b) or
made after the Closing Date in compliance with this Agreement and the other
Loan Documents.


6.14     Margin
Regulations; Investment Company Act.   The Borrower is
not engaged and will not engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the FRB), or extending credit for the purpose
of purchasing or carrying margin stock. None of the Borrower, any Person
Controlling the Borrower, or any Subsidiary is or is required to be registered
as an “investment company” under the Investment Company Act of 1940.



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6.15     Disclosure.   The
Borrower has disclosed to the Administrative Agent and the Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. No report, financial statement, certificate or other
information furnished (whether in writing or orally) by or on behalf of any
Loan Party to the Administrative Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered
hereunder or under any other Loan Document (in each case, as modified or
supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that,
with respect to projected financial information, the Borrower represents only
that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time.


6.16     Compliance
with Laws.   Each of the Borrower and each Subsidiary is
in compliance in all material respects with the requirements of all Laws and
all orders, writs, injunctions and decrees applicable to it or to its
properties, except in such instances in which (a) such requirement of Law
or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply
therewith, either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.


6.17     Intellectual
Property; Licenses, Etc.   The Borrower and its
Subsidiaries own, or possess the right to use, all of the trademarks, service
marks, trade names, copyrights, patents, patent rights, franchises, licenses
and other intellectual property rights (collectively, “IP Rights”) that are reasonably necessary for
the operation of their respective businesses, without known conflict with the
IP Rights of any other Person, except to the extent any failure so to own or
possess the right to use could not reasonably be expected to have a Material Adverse
Effect. To the knowledge of the Borrower, the operation by the Borrower and its
Subsidiaries of their respective businesses does not infringe upon any IP
Rights held by any other Person.


6.18     Senior Indebtedness.   All
Obligations including those to pay principal of and interest (including
post-petition interest, whether or not allowed as a claim under bankruptcy or
similar laws) on the Loans and other Obligations, and fees and expenses in
connection therewith, constitute “Designated Senior Indebtedness” or similar
term relating to the Obligations and all such Obligations are entitled to the
benefits of the subordination created by the Subordinated Notes Indenture or
any other applicable Permitted Subordinated Debt Document, as applicable. The
Borrower acknowledges that the Administrative Agent, each Lender and the L/C
Issuer is entering into this Agreement and is extending its Commitments in
reliance upon the subordination provisions of the Subordinated Notes Indenture
or applicable Permitted Subordinated Debt Document.


ARTICLE VII.

AFFIRMATIVE COVENANTS


So long as any
Lender shall have any Revolving Credit Commitment hereunder, any Loan or other
Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit or Bankers’ Acceptance shall remain outstanding, the Borrower shall, and
shall (except in the case of the covenants set forth in Sections
7.01, 7.02, 7.03
and 7.11) cause each Restricted Subsidiary
to:


7.01     Financial
Statements.   Deliver to the Administrative Agent and
each Lender:


(a)        as
soon as available, but in any event within 90 days after the end of each fiscal
year of the Borrower or, if earlier, 15 days after the date required to be
filed with the SEC (without giving effect to any extension permitted by the
SEC), a consolidated balance sheet of the Borrower and its  Subsidiaries as at the end of such fiscal
year, and the related consolidated statements of income or operations,
shareholders’ 



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equity and cash flows for
such fiscal year, setting forth in each case in comparative form the figures
for the previous fiscal year, all in reasonable detail and prepared in
accordance with GAAP, and audited and accompanied by (i) a report and
opinion of a Registered Public Accounting Firm of nationally recognized
standing reasonably acceptable to the Administrative Agent (the “Auditor”), which
report and opinion shall be prepared in accordance with audit standards of the Public Company Accounting Oversight Board
and applicable Securities Laws and shall not be subject to any “going concern”
or like qualification or exception or any qualification or exception as to the
scope of such audit or with respect to
the absence of material misstatement and (ii) to the extent
required to be prepared under applicable Securities Laws, the report(s) of
management on the Borrower’s internal control over financial reporting pursuant
to Items 308(a) and 308(c) of Regulation S-K promulgated under the
Exchange Act, the Auditor’s attestation report on management’s assessment of
the Borrower’s internal control over financial reporting as filed with the SEC
on Form 10-K for the Borrower, and an independent assessment by the
Auditor as to the effectiveness of the Borrower’s internal control over
financial reporting as required by Auditing Standard No. 2 of the Public
Company Accounting Oversight Board; and


(b)        as soon as available, but in any event within 45 days
after the end of each of the first three fiscal quarters of each fiscal year of
the Borrower or, if earlier, five Business Days after the date required to be
filed with the SEC (without giving effect to any extension permitted by the
SEC), a consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such fiscal quarter, and the related consolidated statements of
income or operations, and cash flows for such fiscal quarter and for the
portion of the Borrower’s fiscal year then ended, setting forth in each case in
comparative form the figures consistent with the Borrower’s financial statements
filed with the SEC with respect to the fiscal quarter ended July 2, 2005,
or with other comparative figures as are acceptable to the Administrative
Agent, all in reasonable detail and certified by a Responsible Officer of the
Borrower as fairly presenting the financial condition, results of operations,
shareholders’ equity and cash flows of the Borrower and its Subsidiaries in
accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes.


(c)        simultaneously
with the delivery of each set of consolidated financial statements referred to
in clauses (a) and (b) above, the related consolidating financial
statements reflecting the adjustments necessary to eliminate the accounts of
Unrestricted Subsidiaries (if any) from such consolidated financial statements,
or otherwise demonstrating in a manner reasonably satisfactory to the
Administrative Agent compliance with the provisions of Section 7.15
relating to the Unrestricted Subsidiaries.


As to any information contained in materials furnished
pursuant to Section 7.02(d), the Borrower shall
not be separately required to furnish such information under clause (a) or
(b) above, but the foregoing shall not be in derogation of the obligation
of the Borrower to furnish the information and materials described in
subsections (a) and (b) above at the times specified therein.


7.02     Certificates;
Other Information.   Deliver to the Administrative Agent
and each Lender, in form and detail satisfactory to the Administrative Agent
and the Required Lenders:


(a)        concurrently
with the delivery of the financial statements referred to in Section 7.01(a), a certificate of its independent
certified public accountants certifying such financial statements and stating
that in making the examination necessary they have not become aware of any
Default in respect of any term, covenant, condition of Section 8.12
or other provision in so far as they relate to accounting matters or, if any
such Default shall exist, stating the nature and status of such event;


(b)        concurrently
with the delivery of the financial statements referred to in Sections 7.01(a) and (b),
a duly completed Compliance Certificate signed by a Responsible Officer of the
Borrower;


(c)        promptly
after any request by the Administrative Agent, documents and other information
supporting the calculation of any defined term used in the computation in any
Compliance Certificate of the financial covenants set forth in Section 8.12;



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(d)        promptly
after the same are available, copies of each annual report, proxy or financial
statement sent to the stockholders of the Borrower, and copies of all annual,
regular, periodic and special reports and registration statements which the
Borrower may file or be required to file with the SEC under Section 13 or
15(d) of the Exchange Act, and not otherwise required to be delivered to
the Administrative Agent pursuant hereto;


(e)        promptly,
such additional information regarding the business, financial or corporate
affairs of the Borrower or any Subsidiary, or compliance with the terms of the
Loan Documents, as the Administrative Agent or any Lender may from time to time
reasonably request.


Documents required to be delivered pursuant to Section 7.01(a) or (b) or
Section 7.02(d) (to the extent
any such documents are included in materials otherwise filed with the SEC) may
be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or
provides a link thereto on the Borrower’s website on the Internet at the
website address listed on Schedule 11.02;
or (ii) on which such documents are posted on the Borrower’s behalf on an
Internet or intranet website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial, third-party website or
whether sponsored by the Administrative Agent); provided
that: (i) the Borrower shall deliver paper copies of such documents to the
Administrative Agent or any Lender that requests the Borrower to deliver such
paper copies until a written request to cease delivering paper copies is given
by the Administrative Agent or such Lender and (ii) the Borrower shall
notify (which may be by facsimile or electronic mail) the Administrative Agent
and each Lender of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding
anything contained herein, in every instance the Borrower shall be required to
provide paper copies of the Compliance Certificates required by Section 7.02(b) to the Administrative Agent. Except
for such Compliance Certificates, the Administrative Agent shall have no
obligation to request the delivery or to maintain copies of the documents
referred to above, and in any event shall have no responsibility to monitor
compliance by the Borrower with any such request for delivery, and each Lender
shall be solely responsible for requesting delivery to it or maintaining its
copies of such documents.


The Borrower hereby acknowledges that (a) the
Administrative Agent and/or the Arrangers will make available to the Lenders
and the L/C Issuer materials and/or information provided by or on behalf of the
Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower
Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain
of the Lenders (each, a “Public Lender”)
may have personnel who do not wish to receive material non-public information
with respect to the Borrower or its Affiliates, or the respective securities of
any of the foregoing, and who may be engaged in investment and other
market-related activities with respect to such Persons’ securities. The
Borrower hereby agrees that, so long as
the Borrower is the issuer of any outstanding debt or equity securities that
are registered or issued pursuant to a private offering or is actively
contemplating issuing any such securities, (w) all Borrower
Materials that are to be made available to Public Lenders shall be clearly and
conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC”
shall appear prominently on the first page thereof; (x) by marking
Borrower Materials “PUBLIC”, the Borrower shall be deemed to have authorized
the Administrative Agent, the Arrangers, the L/C Issuer and the Lenders to
treat such Borrower Materials as not containing any material non-public
information with respect to the Borrower or its securities for purposes of
United States Federal and state securities laws (provided,
however, that to the extent such
Borrower Materials constitute Information, they shall be treated as set forth
in Section 11.07); (y) all
Borrower Materials marked “PUBLIC” are permitted to be made available through a
portion of the Platform designated “Public Investor”; and (z) the
Administrative Agent and the Arrangers shall be entitled to treat any Borrower
Materials that are not marked “PUBLIC” as being suitable only for posting on a
portion of the Platform not designated “Public Investor”. 



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Notwithstanding
the foregoing, the Borrower shall be under no obligation to mark any Borrower
Materials “PUBLIC.”


7.03     Notices.   Promptly
notify the Administrative Agent and each Lender:


(a)        of the
occurrence of any Default;


(b)        of any
matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect, including (i) breach or non-performance of, or
any default under, a Contractual Obligation of the Borrower or any Subsidiary; (ii) any
dispute, litigation, investigation, proceeding or suspension between the Borrower
or any Subsidiary and any Governmental Authority; or (iii) the
commencement of, or any material development in, any litigation or proceeding
affecting the Borrower or any Subsidiary, including pursuant to any applicable
Environmental Laws;


(c)        of the
occurrence of any ERISA Event; and


(d)        of any
material change in accounting policies or financial reporting practices by the
Borrower or any Subsidiary, including any determination by the Borrower
referred to in Section 2.11(b).


Each notice pursuant to this Section 7.03
shall be accompanied by a statement of a Responsible Officer of the Borrower
setting forth details of the occurrence referred to therein and stating what
action the Borrower has taken and proposes to take with respect thereto. Each
notice pursuant to Section 7.03(a) shall
describe with particularity any and all provisions of this Agreement and any
other Loan Document that have been breached.


7.04     Payment
of Obligations.   Pay and discharge as the same shall
become due and payable, all its obligations and liabilities, including (a) all
tax liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by the Borrower or such Subsidiary; (b) all
lawful claims which, if unpaid, would by law become a Lien upon its property,
except to the extent that any such Lien would otherwise be permitted by Section 8.01; and (c) all Indebtedness having an
aggregate principal amount (including undrawn committed or available amounts
and including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than $10,000,000, as and when due and payable, but
subject to any subordination provisions contained in any instrument or
agreement evidencing such Indebtedness.


7.05     Preservation
of Existence, Etc.   (a) Preserve, renew and
maintain in full force and effect its legal existence and good standing under
the Laws of the jurisdiction of its organization or formation except in a
transaction permitted by Section 8.04
or 8.05; (b) take all reasonable
action to maintain all rights, privileges, permits, licenses and franchises
necessary or desirable in the normal conduct of its business, except to the
extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) preserve or renew all of its registered
patents, trademarks, trade names and service marks, the non-preservation of
which could reasonably be expected to have a Material Adverse Effect.


7.06     Maintenance
of Properties.   (a) Maintain, preserve and protect
all of its properties (other than insignificant properties) and equipment
necessary in the operation of its business in good working order and condition,
ordinary wear and tear excepted except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect; (b) make all
necessary repairs thereto and renewals and replacements thereof except where
the failure to do so could not reasonably be expected to have a Material
Adverse Effect; and (c) use the
standard of care typical in the industry in the operation and maintenance of
its facilities.



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7.07     Maintenance
of Insurance.   In the event compliance with the
insurance requirements set forth in the Security Instruments does not satisfy
the following requirements, and not in limitation of such insurance
requirements in the Security Instruments, maintain, with financially sound and
reputable insurance companies, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by
Persons engaged in the same or similar business, of such types and in such
amounts as are customarily carried under similar circumstances by such other
Persons  and providing for not less than 15 days’ prior notice to the
Administrative Agent of termination, lapse or cancellation of such insurance,
none of which insurance (other than worker’s compensation insurance, disability
insurance and other similar types of insurance that do not constitute the
insurance of its properties or of interruptions to its business operations)
shall be provided by any Subsidiary or any other Affiliate of the Borrower.


7.08     Compliance
with Laws.   Comply in all material respects with the
requirements of all Laws (including without limitation all applicable
Environmental Laws) and all orders, writs, injunctions and decrees applicable
to it or to its business or property, except in such instances in which (a) such
requirement of Law or order, writ, injunction or decree is being contested in
good faith by appropriate proceedings diligently conducted; or (b) the
failure to comply therewith could not reasonably be expected to have a Material
Adverse Effect.


7.09     Books
and Records.   (a) 
Maintain proper books of record and account, in which full, true and correct
entries in conformity with GAAP consistently applied shall be made of all
financial transactions and matters involving the assets and business of the
Borrower or such Subsidiary, as the case may be; and (b) maintain such books of record and account in material
conformity with all applicable requirements of any Governmental Authority
having regulatory jurisdiction over the Borrower or such Subsidiary, as the case may be.


7.10     Inspection
Rights.   Permit representatives and independent
contractors of the Administrative Agent and each Lender to visit and inspect
any of its properties, to examine its corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to discuss its
affairs, finances and accounts with its officers, and independent public
accountants, all at such reasonable times during normal business hours and as
often as may be reasonably desired, upon reasonable advance notice to the
Borrower; provided, however,
that when an Event of Default exists the Administrative Agent or any Lender (or
any of their respective representatives or independent contractors) may do any
of the foregoing at the expense of the Borrower at any time during normal
business hours and without advance notice.


7.11     Use
of Proceeds.   Use the proceeds of the Credit Extensions (i) to
finance a portion of the Existing Senior Subordinated Notes Tender and the
Existing Borrower Notes Tender, (ii) to pay fees and expenses in
connection with the Transactions, and/or (iii) for working capital,
capital expenditures, and other general corporate purposes not in contravention
of any Law or of any Loan Document.


7.12     New
Subsidiaries, Pledgors and Real Property.


(a)        As
soon as practicable but in any event within 30 Business Days following the
acquisition or creation of any Subsidiary that is a Restricted Subsidiary
(other than a Receivables Co.), or the time any existing Subsidiary (other than
any Unrestricted Subsidiary or any Receivables Co.) becomes a Material
Subsidiary (including as a result of a Subsidiary becoming a Restricted
Subsidiary pursuant to Section 7.15
or otherwise) or is otherwise required to become a Guarantor in compliance with
Section 7.15(b)(i), in each such
case cause to be delivered to the Administrative Agent each of the following:


(i)         if
such Subsidiary is both a Domestic Subsidiary and a Material Subsidiary, a
Guaranty Joinder Agreement duly executed by such Material Subsidiary;



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(ii)       if
such Subsidiary is both a Domestic Subsidiary and a Material Subsidiary, (A) a
Security Joinder Agreement duly executed by such Material Subsidiary (with all
schedules thereto appropriately completed) and (B) if such Material
Subsidiary owns a fee interest in any real property having a fair market value
in excess of $10,000,000, those documents as are required by Section 3.02(b);


(iii)      if
such Subsidiary is both a Material Subsidiary and either a Domestic Subsidiary
or a Direct Foreign Subsidiary, and if any of the Subsidiary Securities issued
by such Material Subsidiary are Pledged Interests and are owned by a Material
Subsidiary who has not then executed and delivered to the Administrative Agent
the Pledge Agreement or a Pledge Joinder Agreement granting a Lien to the
Administrative Agent, for the benefit of the Secured Parties, in such Pledged
Interests, a Pledge Joinder Agreement (with all schedules thereto appropriately
completed) duly executed by the Material Subsidiary that directly owns such
Pledged Interests;


(iv)       if
such Subsidiary is both a Material Subsidiary and either a Domestic Subsidiary
or a Direct Foreign Subsidiary, and if any of the Subsidiary Securities issued
by such Material Subsidiary are owned by the Borrower or a Material Subsidiary
who has previously executed a Pledge Agreement or a Pledge Joinder Agreement, a
Pledge Agreement Supplement by the Borrower (if applicable) and each Material
Subsidiary that owns any of such Pledged Interests with respect to such Pledged
Interests in the form required by the Pledge Agreement;


(v)        if
such Subsidiary is a Material Subsidiary and owns any Domestic Subsidiary or
Direct Foreign Subsidiary that is also a Material Subsidiary, a Pledge Joinder
Agreement (with all schedules thereto appropriately completed) duly executed by
such Material Subsidiary;


(vi)       if the
Pledged Interests issued or owned by such Subsidiary constitute securities
under Article 8 of the Uniform Commercial Code (A) the certificates
representing 100% of such Pledged Interests and (B) duly executed, undated
stock powers or other appropriate powers of assignment in blank affixed
thereto;


(vii)     with
respect to any Person that has executed a Pledge Joinder Agreement, a Pledge
Agreement Supplement, or a Security Joinder Agreement, Uniform Commercial Code
financing statements naming such Person as “Debtor” and naming the
Administrative Agent for the benefit of the Secured Parties as “Secured Party,”
in form, substance and number sufficient in the reasonable opinion of the
Administrative Agent and its special counsel to be filed in all Uniform
Commercial Code filing offices and in all jurisdictions in which filing is
necessary to perfect in favor of the Administrative Agent for the benefit of
the Secured Parties the Lien on the Collateral conferred under such Security
Instrument to the extent such Lien may be perfected by Uniform Commercial Code
filing;


(viii)    upon
the reasonable request of the Administrative Agent, an opinion of counsel to
each Subsidiary executing any Joinder Agreement or Pledge Supplement, and the
Borrower if it executes a Pledge Agreement Supplement, pursuant to this Section 7.12, dated as of the date of delivery of such
applicable Joinder Agreements (and other Loan Documents) provided for in this Section 7.12 and addressed to the Administrative Agent
and the Lenders, in form and substance reasonably acceptable to the
Administrative Agent, each of which opinions may be in form and substance,
including assumptions and qualifications contained therein, substantially
similar to those opinions of counsel delivered pursuant to Section 5.01(a);
and


(ix)       with
respect to each Subsidiary executing any Joinder Agreement or Pledge
Supplement, and the Borrower if it executes a Pledge Agreement Supplement,
pursuant to this Section 7.12, current copies
of the Organization Documents of each such Person, minutes of duly called and
conducted meetings (or duly effected consent actions) of the Board of
Directors, 



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partners, or appropriate
committees thereof (and, if required by such Organization Documents or
applicable law, of the shareholders, members or partners) of such Person
authorizing the actions and the execution and delivery of documents described
in this Section 7.12, all certified by the
applicable Governmental Authority or appropriate officer as the Administrative
Agent may elect.


(b)        As
soon as practicable but in any event within 30 Business Days following the
acquisition of any Pledged Interests by any Material Subsidiary who has not
theretofore executed the Pledge Agreement or a Pledge Joinder Agreement and who
is not otherwise required to deliver a Pledge Joinder Agreement pursuant to Section 7.12(a), cause to be delivered to the
Administrative Agent a Pledge Joinder Agreement (with all schedules thereto
appropriately completed) duly executed by such Material Subsidiary, and the
documents, stock certificates, stock powers, financing statements, opinions,
Organization Documents and organizational action relating thereto and to the
pledge contained therein and described in Section 7.12(a)(vi),
(vii), (viii) and
(ix).


(c)        As soon
as practicable but in any event within 30 Business Days following the
acquisition of any fee interest in any real property having a fair market value
in excess of $10,000,000 by any Material Subsidiary, notify the Administrative
Agent of such acquisition and provide to the Administrative Agent the location
and use of such real property, and if requested by the Administrative Agent,
cause to be delivered to the Administrative Agent a Mortgage with respect
thereto, along with such Mortgaged Property Support Documents as are requested
by the Administrative Agent, duly executed by such Material Subsidiary, and
such other documents, financing statements and opinions with respect to the
grant of a mortgage therein as the Administrative Agent may reasonably request,
including evidence of the payment of any filing or recordation fees or taxes.


7.13     Compliance with ERISA.   Do, and cause each of its ERISA
Affiliates to do, each of the following: (a) maintain each Plan in
compliance in all material respects with the applicable provisions of ERISA,
the Code and other applicable Laws, including Foreign Benefit Laws; (b) cause
each Plan which is qualified under section 401(a) of the Code to maintain
such qualification; (c) cause each Plan subject to any Foreign Benefit Law
to maintain any required approvals by any Governmental Authority regulating
such Plan, (d) make all required contributions to any Plan subject to
section 412 of the Code, and (e) make all required contributions and
payments to any Foreign Pension Plans.


7.14     Further Assurances.   At the Borrower’s cost and
expense, upon request of the Administrative Agent, duly execute and deliver or
cause to be duly executed and delivered, to the Administrative Agent such
further instruments, documents, certificates, financing and continuation statements,
and do and cause to be done such further acts that may be reasonably necessary
or advisable in the reasonable opinion of the Administrative Agent to carry out
more effectively the provisions and purposes of this Agreement, the Guaranty,
the Security Instruments and the other Loan Documents.


7.15     Unrestricted
Subsidiaries.


(a)        The
Borrower may at any time designate any Restricted Subsidiary as an Unrestricted
Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) immediately before and after such
designation, no Default shall have occurred and be continuing, (ii) no
Restricted Subsidiary may be designated as an Unrestricted Subsidiary if it was
previously designated an Unrestricted Subsidiary or if any of its Subsidiaries
is a Restricted Subsidiary (unless such Subsidiaries are being designated as
Unrestricted Subsidiaries simultaneously therewith), (iii) immediately
after giving effect to such designation (A) the Borrower and the
Restricted Subsidiaries shall be in compliance, on an historical pro forma
basis, with the covenants set forth in Sections 8.02
and 8.12, (B) the aggregate amount of
revenues of the Unrestricted Subsidiaries shall not exceed 10% of the aggregate
amount of revenues of the Borrower and its Subsidiaries on a consolidated
basis, (C) the consolidated EBITDA (measured on the same basis as “Consolidated
EBITDA” provided herein, but for the Unrestricted Subsidiaries only) of the
Unrestricted Subsidiaries shall not exceed 10% of the Consolidated EBITDA
(measured as if all Subsidiaries were 



 A-83
 









Restricted Subsidiaries
for this purpose) of the Borrower and its Subsidiaries on a consolidated basis,
and (D) the aggregate amount of total assets of the Unrestricted
Subsidiaries shall not exceed 10% of the total assets of the Borrower and its
Subsidiaries, and (iv) prior to the effectiveness of any such designation,
the Borrower shall deliver to the Administrative Agent a certificate setting
forth in reasonable detail the calculations demonstrating compliance with the
preceding subsections (iii)(A) through (iii)(D). The designation of any
Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by the
Borrower therein at the date of designation in an amount equal to the sum of (i) the
Borrower’s direct or indirect equity ownership percentage of the net worth of
such designated Restricted Subsidiary immediately prior to such designation
(such net worth to be calculated without regard to any guarantee provided by
such designated Restricted Subsidiary) and (ii) without duplication, the
aggregate principal amount of all Indebtedness owed by such designated
Unrestricted Subsidiary and its Subsidiaries (to the extent such Subsidiaries
are not previously Unrestricted Subsidiaries) to the Borrower or any Restricted
Subsidiary immediately prior to such designation, all calculated, except as set
forth in the parenthetical to clause (i), on a consolidated basis in accordance
with GAAP (and such designation shall only be permitted to the extent such
Investment is permitted under Section 8.03).


(b)        If at
any time:


(i)         an
Unrestricted Subsidiary becomes a guarantor of the Subordinated Notes or of any
other Indebtedness of the Borrower or any Restricted Subsidiary, then the
Borrower shall provide prompt notice thereof to the Administrative Agent, and
in any case within 10 days of such occurrence, and such Subsidiary shall
automatically become a Restricted Subsidiary and shall become a Guarantor in
compliance with, and otherwise satisfy the provisions of, Section 7.12,
or


(ii)       any of
the following occurs:  (x) the
aggregate amount of revenues of the Unrestricted Subsidiaries exceeds 10% of
the aggregate amount of revenues of the Borrower and its Subsidiaries on a
consolidated basis, (y) the consolidated EBITDA (measured on the same
basis as “Consolidated EBITDA” provided herein, but for the Unrestricted
Subsidiaries only) of the Unrestricted Subsidiaries exceeds 10% of the
Consolidated EBITDA (measured as if all Subsidiaries were Restricted
Subsidiaries for this purpose) of the Borrower and its Subsidiaries on a
consolidated basis, or (z) the aggregate amount of total assets of the
Unrestricted Subsidiaries exceeds 10% of the total assets of the Borrower and
its Subsidiaries,


then in any such case the Borrower will promptly, and
in any event within 10 days thereafter, designate one or more Unrestricted
Subsidiaries as Restricted Subsidiaries so that, after such designation, none
of the tests in subsections (i), (ii) and (iii) is then violated.


(c)        If at
any time a Restricted Subsidiary is designated as an Unrestricted Subsidiary in
compliance with this Agreement, the Administrative Agent shall be authorized
to, and shall at the request of the Borrower, release such Unrestricted
Subsidiary from any Loan Document to which it is a party, and release the
Equity Interests of such Unrestricted Subsidiary from the pledge thereof
pursuant to the Pledge Agreement.


(d)        If at any time any Unrestricted Subsidiary is designated or
becomes a Restricted Subsidiary pursuant to the terms of this Agreement, such
Restricted Subsidiary shall, to the extent required thereby, comply with the
provisions of Section 7.12 within the time
required therein.



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ARTICLE
VIII.


NEGATIVE COVENANTS


So long as any Lender shall have any Revolving Credit
Commitment hereunder, any Loan or other Obligation hereunder shall remain
unpaid or unsatisfied, or any Letter of Credit or Bankers’ Acceptance shall
remain outstanding, the Borrower shall not, nor shall it permit any Restricted  Subsidiary to, directly or indirectly:


8.01     Liens.   Create,
incur, assume or suffer to exist any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired, other than the following:


(a)        Liens
pursuant to any Loan Document;


(b)        Liens
existing on the date hereof and listed on Schedule 8.01
and any renewals or extensions thereof, provided that
the property covered thereby consists only of the property covered by the Liens
being renewed or extended and any renewal or extension of the obligations
secured or benefited thereby is permitted by Section 8.03(b);


(c)        Liens
for taxes, assessments or other governmental charges, not yet due or which are
being contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP;


(d)        Liens
of carriers, warehousemen, mechanics, materialmen, repairmen, landlord or other
like Liens imposed by Law or arising in the ordinary course of business which
are not overdue for a period of more than 30 days or which are being contested
in good faith and by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of the applicable
Person;


(e)        Liens,
pledges or deposits in the ordinary course of business in connection with
workers’ compensation, unemployment insurance and other social security
legislation, other than any Lien imposed by ERISA or a Foreign Benefit Law;


(f)         Liens
or deposits to secure the performance of bids, trade contracts and leases
(other than Indebtedness), statutory obligations, surety bonds (other than
bonds related to judgments or litigation), performance bonds and other
obligations of a like nature incurred in the ordinary course of business, and
including deposits (but not Liens) related to the acquisition of property;


(g)        (i) Liens
with respect to minor imperfections of title and easements, rights-of-way,
covenants, consents, reservations, encroachments, variations and zoning and
other similar restrictions, charges, encumbrances or title defects affecting
real property which, in the aggregate, are not substantial in amount, and which
do not in any case materially detract from the value of the property subject
thereto or materially interfere with the ordinary conduct of the business of
the applicable Person, (ii) in the case of any property covered by a
Mortgage, encumbrances disclosed in the title insurance policy issued to, and
reasonably approved by, the Administrative Agent insuring the Mortgage; and (iii) in
the case of any property covered by a Mortgage, upon certification by the
Borrower that an easement, right-of-way, restriction, reservation, permit,
servitude or other similar encumbrance granted or to be granted by the Borrower
or any such Restricted Subsidiary does not materially detract from the value of
or materially impair the use by the Borrower or such Restricted Subsidiary in
the ordinary course of its business of the property subject to or to be subject
to such encumbrance, the Administrative Agent shall execute such documents as
are reasonably requested to subordinate its Mortgage to such encumbrance;


(h)        with
respect to any Mortgaged Fee Property, Liens which appear as exceptions to the
Title Policy delivered to the Administrative Agent with respect to such
Mortgaged Fee Property that are not otherwise permitted by Section 8.01(a),
(c), (d), (g) or (i) and
are acceptable to the Administrative Agent, it being understood that Liens
appearing on the Title Policies delivered to the Administrative Agent on the 



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Closing Date (or on such
later date as such Title Policies are delivered in accordance with the
Post-Closing Agreement and accepted by the Administrative Agent) are acceptable
to the Administrative Agent;


(i)         any
interest or title of a lessor or sublessor and any restriction or encumbrance
to which the interest or title of such lessor or sublessor may be subject that
is incurred in the ordinary course of business and, either individually or when
aggregated with all other Liens described in clauses (a) through (h) in
effect on any date of determination, could not be reasonably expected to have a
Material Adverse Effect;


(j)         Liens
securing judgments for the payment of money not constituting an Event of
Default under Section 9.01 or securing
appeal or other surety bonds related to such judgments;


(k)        Liens
securing Indebtedness permitted under Section 8.03(e);
provided that (i) such Liens do not
at any time encumber any property other than the property financed by such
Indebtedness and (ii) the Indebtedness secured thereby does not exceed the
cost or fair market value, whichever is lower, of the property being acquired
on the date of acquisition;


(l)         Liens
in the nature of trustees’ Liens granted pursuant to any indenture governing
any Indebtedness permitted by Section 8.03,
in each case in favor of the trustee under such indenture and securing only
obligations to pay compensation to such trustee, to reimburse its expenses and
to indemnify it under the terms thereof;


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


(n)        Liens
securing Assumed Indebtedness of the Borrower and the Restricted Subsidiaries
permitted pursuant to Section 8.03(f);
provided that (i) such Liens do not
at any time encumber any property other than property of the Subsidiary acquired,
or the property acquired, and proceeds thereof in connection with such Assumed
Indebtedness and shall not attach to any assets of the Borrower or any of the
Restricted Subsidiaries theretofore existing or (except for any such proceeds)
which arise after the date thereof and (ii) the Assumed Indebtedness and
other secured Indebtedness of the Borrower and the Restricted Subsidiaries
secured by any such Lien does not exceed the fair market value of the property
being acquired in connection with such Assumed Indebtedness;


(o)        Liens
on assets of Foreign Subsidiaries of the Borrower securing Indebtedness of such
Foreign Subsidiaries permitted pursuant to clause (g) or
(k) of Section 8.03;


(p)        Liens
on the Equity Interests of Unrestricted Subsidiaries securing Indebtedness
incurred by such Unrestricted Subsidiaries;


(q)        operating
leases or subleases granted by the Borrower or any of the Restricted
Subsidiaries to any other Person in the ordinary course of business; and


(r)        Liens
on (i) Accounts sold or contributed to a Receivables Co. in  connection with a Permitted Receivables
Transaction, (ii) other assets related to such Accounts and (iii) proceeds
of the foregoing, in each case created in connection with such Permitted
Receivables Transaction.


8.02     Investments.
Make any Investments, except:


(a)        Investments
held by the Borrower or such Subsidiary in the form of Cash Equivalents;


(b)        loans
and advances to officers, directors and employees of the Borrower and its
Subsidiaries either (i) made in the ordinary course of the business of the
Borrower and its Subsidiaries as conducted on the Closing Date to the extent
permitted by applicable Law,  or (ii) made
in connection with the relocation of any such officer, director or employee in
an aggregate amount at any one time outstanding not to exceed $5,000,000;



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(c)        Investments
consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course
of business, and Investments received in satisfaction or partial satisfaction
thereof from financially troubled account debtors to the extent reasonably
necessary in order to prevent or limit loss;


(d)        letters
of credit issued in support of and Guarantees permitted by Section 8.03;


(e)        equity
Investments existing as of the date hereof and as set forth in Schedule 6.13(a) or Schedule 6.13(b) and
other Investments existing as of the date hereof and as set forth in Schedule 8.02 and extensions or renewals thereof, provided that no such extension or renewal shall be
permitted if it would (x) increase the amount of such Investment at the
time of such extension or renewal or (y) result in a Default hereunder;


(f)         Investments
constituting Consolidated Capital Expenditures;


(g)        Investments
in the form of non-cash consideration received from a Disposition permitted by Section 8.05(e);


(h)        Investments
by the Borrower or any Domestic Subsidiary that is a Restricted Subsidiary
consisting of the transfer of Equity Interests of a Foreign Subsidiary to
another Foreign Subsidiary that is a Restricted Subsidiary;


(i)         Investments
made or held by any Foreign Subsidiary of the Borrower that is a Restricted
Subsidiary in any other Foreign Subsidiary of the Borrower that is a Restricted
Subsidiary;


(j)         Investments
of the Borrower or any Domestic Subsidiary of the Borrower that is a Restricted
Subsidiary in the Borrower or any Domestic Subsidiary of the Borrower that is a
Restricted Subsidiary; provided that
such Investments in any Receivables Co. shall only be made in connection with
and as part of a Permitted Receivables Transaction;


(k)        Investments
in the form of securities of any Person acquired in an Acquisition permitted
hereunder and Assumed Indebtedness in respect of a Person or property acquired
in an Acquisition permitted hereunder;


(l)         Investments
in Swap Contracts permitted to be maintained under Section 8.03(d) or
required to be maintained under Section 7.15;


(m)      Investments
consisting of Indebtedness held by the Borrower or any Restricted Subsidiary
arising on account of the accrual of interest on such Investments;


(n)        Investments
made by any Receivables Co. in connection with any Permitted Receivables
Transaction;


(o)        other
Investments (i) so long as at the time of making such Investment the
Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with
Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, in an unlimited
aggregate amount, and (ii) if at the time of making such Investment the
Consolidated Leverage Ratio (calculated on a pro forma basis in accordance with
Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum
permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an aggregate amount after the
Closing Date not to exceed the sum of (A) 5%
of the total assets of the Borrower and its Subsidiaries as of the end of the
most recently ended fiscal year of the Borrower plus
(B) the amount of the Maximum Annual Payment Amount then in effect (less
any portion of the Maximum Annual Payment Amount utilized to make Restricted
Payments pursuant to Section 8.06(e) or
to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))
plus (C) the amount of Investments
previously made pursuant to this subpart (ii) of Section 8.02(o) that
are repaid or returned to the Borrower or applicable Restricted Subsidiary in
cash; provided that any Investment made
pursuant to subpart (i) above may remain outstanding during such times
that the 



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Consolidated Leverage
Ratio exceeds 3.50 to 1.00, and shall not constitute usage of the basket set
forth in subsection (ii) during such time;


provided that, notwithstanding
the foregoing, (i) any Investment which when made complies with the
requirements of the definition of the term “Cash Equivalent” may continue to be
held notwithstanding that such Investment if made thereafter would not comply
with such requirements; and (ii) no Investment otherwise permitted by
clause (d) (except to the extent related to Indebtedness then permitted to
be incurred under Section 8.03), (k) or (o) shall
be permitted to be made if, immediately before or after giving effect thereto,
any Default shall have occurred and be continuing.


8.03     Indebtedness.
Create, incur, assume or suffer to exist any Indebtedness, except:


(a)        Indebtedness
under the Loan Documents;


(b)        Indebtedness
outstanding on the date hereof and listed on Schedule
8.03 and any refinancings, refundings, renewals or extensions
thereof; provided that (i) the amount of
such Indebtedness is not increased at the time of such refinancing, refunding,
renewal or extension except by an amount equal to a reasonable premium or other
reasonable amount paid, and fees and expenses reasonably incurred, in
connection with such refinancing and by an amount equal to any existing
commitments unutilized thereunder, (ii) the average life to maturity of
any refinancing, refunding, renewal or extension of such Indebtedness permitted
hereby is not less than the then average life to maturity of the Indebtedness
so refinanced or replaced, and (iii) any refinancing, refunding, renewal
or extension of Indebtedness subordinated to the Obligations shall be on terms
no less favorable to the Administrative Agent and the Lenders, and no more
restrictive to the Borrower, than the subordinated Indebtedness being
refinanced, refunded, renewed or extended and in an amount not less than the
amount outstanding at the time thereof;


(c)        Guarantees
of the Borrower or any Guarantor in respect of Indebtedness otherwise permitted
hereunder of the Borrower or any other Guarantor (other than Indebtedness
described in clauses (i) or (k) below), provided that any guarantee of Permitted
Subordinated Debt or of any other Indebtedness permitted hereunder that is
subordinated to the Obligations shall be subordinated to the Obligations on
substantially the same terms as such Permitted Subordinated Debt or other
subordinated Indebtedness;


(d)        obligations
(contingent or otherwise) of the Borrower or any Subsidiary existing or arising
under any Swap Contract, provided that (i) such
obligations are (or were) entered into by such Person in the ordinary course of
business for the purpose of directly mitigating risks associated with
liabilities, commitments, investments, assets, cash flows or property held or
reasonably anticipated by such Person, or changes in the value of securities
issued by such Person, and not for purposes of speculation or taking a “market
view;” and (ii) such Swap Contract does not contain any provision
exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party;


(e)        Indebtedness
in respect of capital leases, Synthetic Lease Obligations and purchase money
obligations for real property and fixed or capital assets within the limitations
set forth in Section 8.01(k); provided, however, that
the aggregate amount of all such Indebtedness at any one time outstanding shall
not exceed $50,000,000;


(f)         Assumed
Indebtedness of the Borrower and the Restricted Subsidiaries in an aggregate
principal amount not to exceed $75,000,000 at any time outstanding;


(g)        Indebtedness
of Foreign Subsidiaries of the Borrower in an aggregate principal amount at any
time outstanding not to exceed 5% of
the total assets of the Borrower and its Restricted Subsidiaries as of the end
of the most recently ended fiscal year of the Borrower;



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(h)        the
endorsement of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business;


(i)         Indebtedness
of (i) (x) any Domestic Subsidiary that is a Restricted Subsidiary
owing to the Borrower or any of the Restricted Subsidiaries, or (y) the
Borrower owing to any of the Restricted Subsidiaries, and (ii) any Foreign
Subsidiary that is a Restricted Subsidiary of the Borrower owing to the Borrower
or any Domestic Subsidiary that is a Restricted Subsidiary; provided that (A) in the case of any Indebtedness
described in subpart (ii) above, the Investment by the Borrower or
Domestic Subsidiary is permitted by Section 8.02(o),
and (B) any such Indebtedness described in this clause (i) which
is owing to the Borrower or any of its Domestic Subsidiaries that are
Restricted Subsidiaries, (1) to the extent requested by the Administrative
Agent, such Indebtedness shall be evidenced by one or more promissory notes in
form and substance satisfactory to the Administrative Agent which shall be duly
executed and delivered to (and indorsed to the order of) the Administrative
Agent in pledge pursuant to a Pledge Agreement and (2) in the case of any
such Indebtedness owed by a Person other than the Borrower or a Subsidiary
Guarantor, such Indebtedness shall not be forgiven or otherwise discharged for
any consideration other than payment (Dollar for Dollar) in cash unless the
Administrative Agent otherwise consents;


(j)         surety
bonds permitted under Section 8.01;


(k)        Indebtedness
of any Foreign Subsidiary owing to any other Foreign Subsidiary;


(l)         Permitted
Subordinated Debt;


(m)      Receivables
Facility Outstandings in an aggregate amount at any time not to exceed $200,000,000,
the recourse of which shall (except in respect of fees, costs,
indemnifications, representations and warranties and other obligations in which
recourse is customarily available against originators or servicers of Accounts
included in special-purpose-vehicle receivables financing arrangements, other
than any of the foregoing which are in effect credit substitutes) be limited
solely to any applicable Receivables Co. and its assets; and


(n)        other
unsecured Indebtedness of the Borrower and its Restricted Subsidiaries so long
as (i) at the time of incurrence thereof the Borrower is in pro forma
compliance (computed in accordance with Sections 1.04(c) and
(d)) with the financial covenants set
forth in Section 8.12, and (ii) such Indebtedness has a stated maturity
date no earlier than the Term Loan B Maturity Date;


provided that (i) no
Indebtedness otherwise permitted by clause (e), (f), (g), (i) (as such clause (i) relates
to loans made by the Borrower or any Subsidiary Guarantor to Restricted
Subsidiaries which are not Subsidiary Guarantors) or (n) may
be incurred if, immediately before or after giving effect to the incurrence
thereof, any Default shall have occurred and be continuing, and (ii) all
such Indebtedness of the type described in clause (i)(i)(y) above
that is owed to Subsidiaries that are not Subsidiary Guarantors shall be
subordinated, in writing, to the Obligations upon terms satisfactory to the
Administrative Agent.


8.04     Fundamental
Changes.   Merge, dissolve, liquidate, consolidate with
or into another Person, or Dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except that, so long
as no Default exists or would result therefrom:


(a)        any
Restricted Subsidiary (other than a Receivables Co.) may merge with the
Borrower or any one or more other Restricted Subsidiaries, provided
that (i) when the Borrower is merging with a Restricted Subsidiary, the
Borrower shall be the continuing or surviving Person, and (ii) when any Guarantor is merging with another
Subsidiary, the Guarantor shall
be the continuing or surviving Person; and



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(b)        any
Restricted Subsidiary may Dispose of all or substantially all of its assets
(upon voluntary liquidation or otherwise) to the Borrower or another Restricted
Subsidiary (other than a Receivables Co.); provided that
if the transferor in such a transaction is a Guarantor, then the transferee
must also be a Guarantor or the Borrower; and


(c)        a merger
or consolidation necessary to consummate (i) an Acquisition permitted by
and in compliance with Section 8.13
or (ii) a Disposition permitted by and in compliance with Section 8.05.


8.05     Dispositions.   Make
any Disposition or enter into any agreement to make any Disposition, except:


(a)        Dispositions
in the ordinary course of its business (and neither constitutes a Disposition
of all or a substantial part of the Borrower’s and the Restricted Subsidiaries’
assets, taken as a whole, nor is made in connection with a Permitted
Receivables Transaction) or of obsolete or worn out property;


(b)        any
Disposition that constitutes (i) an Investment permitted under Section 8.02, (ii) a Lien permitted under Section 8.01 or Section 8.04(a) or
(b), or (iii) a Restricted Payment
permitted under Section 8.06;


(c)        Dispositions
for fair market value of equipment or real property to the extent that (i) such
equipment or real property is exchanged for credit against the purchase price
of similar replacement property or (ii) the proceeds of such Disposition
are reasonably promptly applied to the purchase price of such replacement
equipment or real property, and in each case if the disposed property
constituted Collateral then the relevant Loan Party shall grant a Lien to the
Administrative Agent (including the delivery of any necessary Mortgage and
Mortgaged Property Support Documents) on such new or replacement property;


(d)        Dispositions
of property by the Borrower or any Restricted
Subsidiary to a wholly-owned Restricted  Subsidiary (other  than
a Receivables Co.)  or, solely with
respect to Dispositions of the stock of a Restricted Subsidiary of the
Borrower, the Borrower; provided that
if the transferor of such property is the Borrower or a Guarantor, the
transferee thereof must be a Guarantor or, subject to the limitation above, the
Borrower;


(e)        Dispositions
of assets or stock of the Subsidiaries, so long as (i) each such
Disposition is, in the reasonable judgment of the Borrower, for fair market
value, (ii) both before and after giving effect thereto, no Default or
Event of Default has occurred and is continuing and the Borrower is in
compliance, on an historical pro forma basis as provided in Section 1.04(c), with the financial covenants set forth
in Section 8.12 and (iii) the aggregate
amount of all Dispositions made pursuant to this subsection in any one fiscal
year of the Borrower does not exceed 10% of the total assets of the Borrower
and its Restricted Subsidiaries as of the end of the most recently ended fiscal
year of the Borrower (the “10% Maximum Per Year”);
provided that in one fiscal year (the “Special Year”) the Borrower may carry forward or carry
backward amounts available under this subsection but (I) unused in the
immediately preceding fiscal year, and available for the next succeeding fiscal
year, (II) amounts unused in the immediately preceding two fiscal years or
(III) amounts available in the next two succeeding fiscal  years, in each case up to the 10% Maximum Per
Year so that the aggregate amount available to be used in the Special Year is,
at the option of the Borrower and in connection with one or a series of related
Dispositions identified to the Administrative Agent at such time and
aggregating more than the 10% Maximum Per Year for that fiscal year, increased
to an amount not to exceed 30% of the total assets of the Borrower and its
Restricted Subsidiaries as of the end of the most recently ended fiscal year of
the Borrower (which amount shall be, for the Special Year, in lieu of and not
in addition to the 10% Maximum Per Year), it being understood by the parties
that any amounts carried back from future periods shall reduce the amount
available to be used in the period from which such amount is carried back;



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(f)         such
Disposition results from a casualty or condemnation in respect of such property
or assets;


(g)        such
Disposition consists of the sale or discount of overdue accounts receivable in
the ordinary course of business, but only in connection with the compromise or
collection thereof;


(h)        such
Disposition is of Accounts and related assets and is made pursuant to a
Permitted Receivables Transaction; or


(i)         Dispositions
with respect to which the fair market value of all assets Disposed of, whether
individually or in a series of related transactions, does not exceed
$10,000,000.


8.06     Restricted
Payments.   Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except that, in each case (except Section 8.06(a))
so long as no Default or Event of Default shall have occurred and be continuing
(both before and after the making of such Restricted Payment):


(a)        each
Restricted Subsidiary may make Restricted Payments to the Borrower and to
wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment
by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted
Subsidiary and to each other owner of capital stock or other equity interests
of such Restricted Subsidiary on a pro rata basis based on their relative ownership
interests);


(b)        the
Borrower and each Subsidiary may declare and make dividend payments or other
distributions payable solely in the common stock or other common Equity
Interests of such Person;


(c)        the
Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares
of its common stock or other common Equity Interests or warrants or options to
acquire any such shares in connection with customary employee or management
agreements, plans or arrangements;


(d)        the
Borrower shall be permitted to make Restricted Payments in the form of cash
dividends to the shareholders of the Borrower in an aggregate amount in any
fiscal year not to exceed $10,000,000; provided that,
any amount of cash dividends permitted to be paid by this clause (d) but
not paid in respect of any fiscal year commencing on or after October 1,
2006, may be carried forward and paid in any subsequent fiscal year;


(e)        the
Borrower and each Subsidiary shall be permitted to make other Restricted
Payments in the form of cash dividends, distributions, purchases, redemptions
or other acquisitions of or with respect to shares of its common stock or other
common Equity Interests either (i) if at the time of making such
Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma
basis giving effect to such Restricted Payment and any Indebtedness incurred in
connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d))
is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at
the time of making such Restricted Payment the Consolidated Leverage Ratio
(calculated on a pro forma basis giving effect to such Restricted Payment and
any Indebtedness incurred in connection therewith and any other relevant
factor, all in accordance with Sections 1.04(c) and
(d)) is greater than 3.50 to 1.00 but
less than the maximum permitted level for the most recently ended fiscal
quarter set forth in Section 8.12(a),
in an amount in any fiscal year of the Borrower not greater than the Maximum
Annual Payment Amount (less any portion of the Maximum Annual Payment Amount
utilized to make Investments pursuant to Section 8.02(o) or
to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv)).


8.07     Change
in Nature of Business.   Engage in any material line of
business that is not a Core Business; provided, that
the foregoing shall not restrict any Receivables Co. from entering into any
Permitted Receivables Transaction.



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8.08     Transactions
with Affiliates.   Enter into any transaction of any kind
with any Affiliate of the Borrower, whether or not in the ordinary course of
business, other than (a) transactions on fair and reasonable terms
substantially as favorable to the Borrower or such Subsidiary as would be
obtainable by the Borrower or such Subsidiary at the time in a comparable arm’s
length transaction with a Person other than an Affiliate, (b) the
consummation by the Borrower and its Subsidiaries of the transactions effected
by the Loan Documents, (c) any employment arrangement entered into by the
Borrower or any of its Subsidiaries in the ordinary course of business and
consistent with the past practices of the Borrower or such Subsidiary, (d) transactions
between or among the Borrower and its Restricted Subsidiaries or between or
among Restricted Subsidiaries of the Borrower, in each case to the extent
permitted under the terms of the Loan Documents, (e) the declaration and
payment of dividends and the making of distributions to all holders of any
class of capital stock of the Borrower or any of its Restricted Subsidiaries to
the extent otherwise permitted under Section 8.06,
(f) Permitted Receivables Transactions, (g) the Tax Sharing
Agreement, and (h) shared service arrangements entered into in the
ordinary course of business and allocating expenses and fees reasonably in
accordance with the services provided.


8.09     Burdensome
Agreements.   Enter into any Contractual Obligation
(other than this Agreement or any other Loan Document and, to the extent
pertaining to any Receivables Co., any Permitted Securitization Transaction)
that: 


(a)        requires
the grant of a Lien to secure an obligation of such Person if a Lien is granted
to secure another obligation of such Person, except any such provision
contained in the Subordinated Notes Indenture to the extent such provision does
not require such a grant of a Lien to secure the Subordinated Notes if a Lien
is granted securing the Obligations; or


(b)        limits
the ability (i) of any Restricted Subsidiary to make Restricted Payments
to the Borrower or any Guarantor or to otherwise transfer property to the
Borrower or any Guarantor other than customary restrictions required in
connection with (x) financings permitted by this Agreement, the
limitations of which are no more restrictive than the corresponding limitations
applicable to the Borrower hereunder, and (y) Dispositions permitted by
this Agreement and which limitations cover only such assets or
Person(s) which are the subject matter of such Dispositions and, prior to
such Disposition, permit the Liens granted under the Loan Documents therein,
and (ii) of any Restricted Subsidiary to Guarantee the Indebtedness of the
Borrower, or (iii) of the Borrower or any Restricted Subsidiary to create,
incur, assume or suffer to exist Liens on property of such Person; provided, however, that
this clause (iii) shall not prohibit:


(A)       a
negative pledge contained in either (x) Indebtedness of any Restricted
Subsidiary as of the date it becomes a Restricted Subsidiary of the Borrower in
any transaction otherwise permitted hereunder or (y) Indebtedness
outstanding on the date hereof and listed on Schedule 8.03,
in each case so long as such provision does not impair or conflict with any
Security Instrument or with Section 7.12
hereof;


(B)       provisions
limiting Liens on property as may be contained in the terms of any Indebtedness
permitted under Section 8.03(e) or (f) solely to the extent any such limitations relates
to the property financed by or the subject of such Indebtedness;


(C)       provisions
limiting Liens on property, and only on such property, subject to a prior Lien
permitted under Section 8.01(c), (d), (e), (f), (i), (k), (o), (p) and (r); and


(D)       such
provisions as may be contained in any refinancing or replacing Indebtedness
permitted under Section 8.03, provided that
the terms of such provisions shall be no less favorable to the Administrative
Agent and the Lenders as were contained in the Indebtedness being refinanced or
replaced.



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8.10     Use
of Proceeds.   Use the proceeds of any Credit Extension,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, in any manner that might cause the Credit Extension or the
application of such proceeds to violate Regulations T, U or X of the FRB, in
each case as in effect on the date or dates of such Credit Extension and such
use of proceeds.


8.11     Prepayment
of Indebtedness; Amendment to Material Agreements.


(a)        Prepay,
redeem, purchase, repurchase, defease or otherwise satisfy prior to the
scheduled maturity thereof any Indebtedness that is either subordinated to the
Indebtedness hereunder or has a stated maturity date later than the Term Loan B
Maturity Date, or make any payment in violation of any subordination terms thereof,
including in each case pursuant to any change of control, sale of assets,
issuance of any equity or otherwise as may be set forth in the terms thereof or
available to the Borrower at its option, except prepayments, redemptions,
purchases, repurchases, defeasances or other satisfaction of (i) unsecured
Indebtedness made with the proceeds of any Permitted Subordinated Debt (ii) unsecured
or secured Indebtedness made with the proceeds of other Indebtedness permitted
to be incurred pursuant to Section 8.03
and containing terms and conditions (including terms of subordination, security
and maturity) no less favorable in any material respect to the Administrative
Agent and the Lenders than the Indebtedness being prepaid or otherwise
satisfied therewith, (iii) unsecured Indebtedness so long as after giving
effect thereto the Consolidated Leverage Ratio (calculated on a pro forma basis
in accordance with Sections 1.04(c) and
(d)) is not greater than 3.50 to 1.00,
and (iv) any other Indebtedness not permitted pursuant to the foregoing
subparts (i) through (iii) above so long as the aggregate principal
amount of all Indebtedness prepaid or otherwise satisfied pursuant to this
subpart (iv) in any fiscal year of the Borrower not greater than the
Maximum Annual Restricted Payment Amount (less any portion of the Maximum
Annual Payment Amount utilized in such fiscal year to make Investments pursuant
to Section 8.02(o) or to make
Restricted Payments pursuant to Section 8.06(e)(ii));
or 


(b)        Amend,
modify or change in any manner any term or condition of (i) any
Subordinated Note or the Subordinated Notes Indenture, (ii) any Permitted
Subordinated Debt Document, (iii) any Indebtedness with a stated maturity
date outside the Term Loan B Maturity Date, or (iv) any documents, instruments
and agreements delivered in connection with a Permitted Receivables Transaction
or any schedules, exhibits or agreements related thereto,  in each case so that the terms and
conditions thereof are less favorable in any material respect to the Administrative
Agent and the Lenders than the terms of such Indebtedness as of the Closing
Date, but in no event shall terms of recourse, guarantees or credit support be
any less favorable to the Administrative Agent or the Lenders than the terms of
such Indebtedness as of the Closing Date. 


8.12     Financial
Covenants. 


(a)        Consolidated Leverage Ratio.   Permit the Consolidated
Leverage Ratio at any time during any period of four fiscal quarters of the
Borrower set forth below to be greater than the ratio set forth below opposite
such period:




	
  Four Fiscal Quarters Ending

  	
   

  	
   

  	
   

  	
  Maximum 

  Consolidated 

  Leverage Ratio

  	
   

  
	
  Closing Date
  through September 30, 2008

  	
   

  	
   

  	
  5.25 to 1.00

  	
   

  	
   

  
	
  December 31,
  2008 through September 30, 2009

  	
   

  	
   

  	
  5.00 to 1.00

  	
   

  	
   

  
	
  December 31,
  2009 through September 30, 2010

  	
   

  	
   

  	
  4.75 to 1.00

  	
   

  	
   

  
	
  December 31, 2010
  and each fiscal quarter thereafter

  	
   

  	
   

  	
  4.50 to 1.00

  	
   

  	
   

  






 


(b)        Consolidated Interest Charge Coverage Ratio.   Permit
the Consolidated Interest Charge Coverage Ratio as of the end of any
Four-Quarter Period of the Borrower to be less than 2.50 to 1.00.



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8.13     Acquisitions.   Enter
into any agreement, contract, binding commitment or other arrangement providing
for any Acquisition, or take any action to solicit the tender of securities or
proxies in respect thereof in order to effect any Acquisition, unless (i) the
Person to be (or whose assets are to be) acquired does not oppose such
Acquisition and the line or lines of business of the Person to be acquired
constitute Core Businesses, (ii) after giving effect to such Acquisition
and all Indebtedness incurred or repaid in connection therewith, the Borrower
shall be in compliance on a pro forma basis with each financial covenant set
forth in Section 8.12 (each calculated in
accordance with Sections 1.04(c) and (d))), (iii) no Default or Event of Default shall have
occurred and be continuing either immediately prior to or immediately after
giving effect to such Acquisition and, if the Cost of Acquisition is in excess
of $50,000,000, the Borrower shall have furnished to the Administrative Agent (A) pro
forma historical financial statements as of the end of the most recently
completed four fiscal quarters of the Borrower, giving effect to such
Acquisition, and (B) a Compliance Certificate prepared on a historical pro
forma basis as of March 31, 2007, or, if later, as of the most recent date
for which financial statements have been furnished pursuant to Section 7.01(a) or (b), giving
effect to such Acquisition, which Compliance Certificate shall demonstrate that
no Default or Event of Default would exist immediately after giving effect
thereto (including demonstrating compliance on a pro forma basis with each
financial covenant set forth in Section 8.12
(each calculated in accordance with Sections 1.04(c) and
(d))), (iv) the Person acquired
shall be a wholly-owned Restricted Subsidiary, or be merged with or into a
Restricted Subsidiary, immediately upon consummation of the Acquisition (or if
assets are being acquired, the acquiror shall be a Restricted Subsidiary), and (v) upon
consummation of the Acquisition each Subsidiary shall have complied with the
provisions of Section 7.12, including with
respect to any new assets (including real property) acquired.


8.14     Creation of New Subsidiaries.   Create
or acquire any new Subsidiary after the Closing Date other than Restricted
Subsidiaries created or acquired in accordance with Section 7.12,
provided that any Unrestricted Subsidiary may create a Subsidiary that is an
Unrestricted Subsidiary.


8.15     Securities of Subsidiaries.   Permit any Restricted
Subsidiary to issue any Equity Interests (whether for value or otherwise) to
any Person other than the Borrower or another Subsidiary of the Borrower that
is a Restricted Subsidiary.


8.16     Sale and Leaseback.   Enter into, or permit any
Restricted Subsidiary to, enter into any agreement or arrangement with any
other Person providing for the leasing by the Borrower or any of the Restricted
Subsidiaries of real or personal property which has been or is to be sold or
transferred by the Borrower or any of the Restricted Subsidiaries to such other
Person or to any other Person to whom funds have been or are to be advanced by
such Person on the security of such property or rental obligations of the
Borrower or any of the Restricted Subsidiaries.


ARTICLE
IX.


EVENTS
OF DEFAULT AND REMEDIES 


9.01     Events of Default.   Any
of the following shall constitute an Event of Default:


(a)        Non-Payment.   The Borrower
or any other Loan Party fails to pay (i) when and as required to be paid
herein, any amount of principal of any Loan or any L/C—BA Obligation, or (ii) within
three days after the same becomes due, any interest on any Loan or on any L/C—BA
Obligation, or any commitment or other fee due hereunder, or (iii) within
five days after the same becomes due, any other amount payable hereunder or
under any other Loan Document; or


(b)        Specific Covenants.   The Borrower fails to perform or
observe any term, covenant or agreement contained (A) in any of Section 7.03(a) or (b),
7.05 (other than with respect to the
maintenance of good standing), 7.10, 7.11 or 7.12 or Article VIII, or (B) in either Section 7.01 or 7.02 and such
failure continues for 15 days; or



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(c)        Other Defaults.   Any Loan Party fails to perform or
observe any other covenant or agreement (not specified in subsection (a) or
(b) above) contained in any Loan Document on its part to be performed or observed
and such failure continues for 30 days after the earlier of (i) receipt of
notice of such default by a Responsible Officer of the Borrower from the
Administrative Agent, or (ii) any Responsible Officer of the Borrower
becomes aware of such default; or


(d)        Representations and Warranties.   Any representation,
warranty, certification or statement of fact made or deemed made by or on
behalf of the Borrower or any other Loan Party herein, in any other Loan
Document, or in any document delivered in connection herewith or therewith
shall be incorrect or misleading when made or deemed made in any material
respect; or


(e)        Cross-Default.   (i) The Borrower, any Restricted
Subsidiary or any other Loan Party (A) fails to make any payment when due
(whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise, and after passage of any grace period) in respect of any
Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness
under Swap Contracts) having an aggregate principal amount (including undrawn
committed or available amounts and including amounts owing to all creditors
under any combined or syndicated credit arrangement) of more than $25,000,000,
or (B) fails to observe or perform any other agreement or condition
relating to any such Indebtedness or Guarantee or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event
occurs, and such default continues for more than the period of grace, if any,
therein specified, the effect of which default or other event is to cause, or
to permit the holder or holders of such Indebtedness or the beneficiary or
beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder
or holders or beneficiary or beneficiaries) to cause, with the giving of notice
if required, such Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an
offer to repurchase, prepay, defease or redeem such Indebtedness to be made,
prior to its stated maturity, or such Guarantee to become payable or cash
collateral in respect thereof to be demanded; or (ii) there occurs under
any Swap Contract an Early Termination Date (as defined in such Swap
Contract) resulting from (A) any event of default under such Swap Contract
as to which the Borrower, any Restricted Subsidiary or any other Loan Party is
the Defaulting Party (as defined in such Swap Contract) or (B) any
Termination Event (as so defined) under such Swap Contract as to which the
Borrower, any Restricted Subsidiary or any other Loan Party is an Affected
Party (as so defined) and, in either event, the Swap Termination Value owed by
the Borrower, any Restricted Subsidiary or any other Loan Party as a result
thereof is greater than $25,000,000;


(f)         Insolvency Proceedings, Etc.   The Borrower, any
Restricted Subsidiary or any other Loan Party institutes or consents to the
institution of any proceeding under any Debtor Relief Law, or makes an
assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of its
property; or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or
consent of such Person and the appointment continues undischarged or unstayed
for 60 calendar days; or any proceeding under any Debtor Relief Law relating to
any such Person or to all or any material part of its property is instituted
without the consent of such Person and continues undismissed or unstayed for 60
calendar days, or an order for relief is entered in any such proceeding; or


(g)        Inability to Pay Debts; Attachment.   (i) The
Borrower, any Restricted Subsidiary or any other Loan Party becomes unable or
admits in writing its inability or fails generally to pay its debts as they
become due, or (ii) any writ or warrant of attachment or execution or
similar process is issued or levied against all or any material part of the property
of any such Person and is not released, vacated or fully bonded within 30 days
after its issue or levy; or



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(h)        Judgments.   There is entered against the Borrower, any
Restricted Subsidiary or any other Loan Party (i) one or more final
judgments or orders for the payment of money in an aggregate amount exceeding
$25,000,000 (to the extent not covered by insurance provided by a Person
described in Section 7.07 as to which the
insurer does not dispute coverage), or (ii) any one or more non-monetary
final judgments that have, or would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect and, in either
case, such judgment or order remains unvacated and unpaid and either (A) enforcement
proceedings are commenced by any creditor upon such judgment or order, or (B) there
is a period of 30 consecutive days during which a stay of enforcement of such judgment,
by reason of a pending appeal or otherwise, is not in effect; or 


(i)         ERISA.   (i) An ERISA Event occurs with respect to
a Pension Plan or Multiemployer Plan which has resulted or would reasonably be
expected to result in liability of the Borrower under Title IV of ERISA to the
Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess
of $25,000,000, or (ii) the Borrower or any ERISA Affiliate fails to pay
when due, after the expiration of any applicable grace period, any installment
payment with respect to its withdrawal liability under Section 4201 of
ERISA under a Multiemployer Plan in an aggregate amount in excess of
$25,000,000; or (iii) the benefit liabilities of all Plans governed by
Foreign Benefit Laws, or the funding of which are regulated by any Foreign
Benefit Laws, at any time exceed all such Plans’ assets, as computed in
accordance with applicable law as of the most recent valuation date for such
Plans, by more than $25,000,000; or


(j)         Invalidity of Loan Documents.   Any Loan Document, or
any Lien granted thereunder, at any time after its execution and delivery and
for any reason other than as expressly permitted hereunder or satisfaction in
full of all the Obligations, ceases to be in full force and effect (except with
respect to immaterial assets); or any Loan Party or any other Person contests
in any manner the validity or enforceability of any Loan Document or any Lien
granted to the Administrative Agent pursuant to the Security Instruments; or
any Loan Party denies that it has any or further liability or obligation under
any Loan Document, or purports to revoke, terminate or rescind any Loan
Document; or


(k)        Subordinated Notes and Permitted Subordinated Debt.   The
subordination provisions relating to the Subordinated Notes or any Permitted
Subordinated Debt (the “Subordination Provisions”)
shall fail to be enforceable by the Lenders (which have not effectively waived
the benefits thereof) in accordance with the terms thereof, or the principal or
interest on any Loan, any L/C—BA Obligation or other Obligations shall fail to
constitute “designated senior debt” (or any other similar term) under any
document, instrument or agreement evidencing such Subordinated Notes or
Permitted Subordinated Debt; or the Borrower or any of its Subsidiaries shall,
directly or indirectly, disavow or contest in any manner (i) the
effectiveness, validity or enforceability of any of the Subordination
Provisions, or (ii) that any of such Subordination Provisions exist for
the benefit of the Secured Parties; or 


(l)         Change of Control.   There occurs any Change of Control.


9.02     Remedies
Upon Event of Default.   If any Event of Default occurs
and is continuing, the Administrative Agent shall, at the request of, or may,
with the consent of, the Required Lenders, take any or all of the following
actions:


(a)        declare
the commitment of each Lender to make Loans and any obligation of the L/C
Issuer to make L/C—BA Credit Extensions to be terminated, whereupon such
commitments and obligation shall be terminated; 


(b)        declare
the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any
other Loan Document to be immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Borrower; 



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(c)        require
that the Borrower Cash Collateralize the L/C—BA Obligations (in an amount equal
to the then Outstanding Amount thereof); and


(d)        exercise
on behalf of itself and the Lenders all rights and remedies available to it and
the Lenders under the Loan Documents or applicable Law;


provided,
however, that upon the occurrence of an
actual or deemed entry of an order for relief with respect to the Borrower
under the Bankruptcy Code of the United States, the obligation of each Lender
to make Loans and any obligation of the L/C Issuer to make L/C—BA Credit
Extensions shall automatically terminate, the unpaid principal amount of all
outstanding Loans and all interest and other amounts as aforesaid shall automatically
become due and payable, and the obligation of the Borrower to Cash
Collateralize the L/C—BA Obligations as aforesaid shall automatically become
effective, in each case without further act of the Administrative Agent or any
Lender.


9.03     Application
of Funds.   After the exercise of remedies provided for
in Section 9.02 (or after the Loans
have automatically become immediately due and payable and the L/C—BA
Obligations have automatically been required to be Cash Collateralized as set
forth in the proviso to Section 9.02),
any amounts received on account of the Obligations shall be applied by the
Administrative Agent in the following order: 


First,
to payment of that portion of the Obligations
constituting fees, indemnities, expenses and other amounts (including
reasonable fees, charges and disbursements of counsel to the Administrative
Agent and amounts payable under Article IV)
payable to the Administrative Agent in its capacity as such;


Second,
to payment of that portion of the Obligations constituting
fees, indemnities and other amounts (other than principal, interest, Letter of
Credit—BA Fees and other Obligations expressly described in clauses Third through Fifth below)
payable to the Lenders and the L/C Issuer (including reasonable fees, charges
and disbursements of counsel to the respective Lenders and the L/C Issuer and
amounts payable under Article IV),
ratably among them in proportion to the respective amounts described in this
clause Second payable to them;


Third,
to payment of that portion of the Obligations constituting accrued and unpaid
Letter of Credit—BA Fees and interest on the Loans, L/C—BA Borrowings and other
Obligations, ratably among the Lenders and the L/C Issuer in proportion to the
respective amounts described in this clause Third payable
to them;


Fourth,
(ratably among the Lenders and the L/C Issuer in proportion to the respective
amounts described in this clause Fourth held by them) to (i) the payment
of that portion of the Obligations constituting unpaid principal of the Loans
and L/C—BA Borrowings, (ii) the payment of the maximum amount of all
Bankers’ Acceptances then outstanding, such payment to be for the account of
the L/C Issuer (or to the extent Revolving Lenders have theretofore funded
their participations in any such Bankers’ Acceptance, ratably among such
Revolving Lenders in accordance with their Pro Rata Revolving Shares) and (iii) to
Cash Collateralize that portion of L/C—BA Obligations comprising the aggregate
undrawn amount of Letters of Credit, to the Administrative Agent for the
account of the L/C Issuer; provided that
if the amounts available are insufficient to make all payments provided for in
this clause Fourth, that portion allocable to clause
(iii) shall be applied first to pay Outstanding Amounts of Revolving Loans
and L/C—BA Borrowings before being utilized to Cash Collateralize L/C—BA
Obligations;


Fifth,
to payment of Swap Termination Values and amounts owing under Related Treasury
Management Arrangements, in each case to the extent owing to any Lender or any
Affiliate of any Lender arising under Related Credit Arrangements that shall
have been terminated and as to which the Administrative Agent shall have
received notice of such termination and the Swap Termination Value thereof or
the amount owing under the applicable Related Treasury Management Arrangement
from the applicable Lender or Affiliate of a Lender;



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Sixth,
to the payment of all other Obligations of the Loan Parties owing under or in
respect of the Loan Document that are due and payable to the Administrative
Agent and the other Secured Parties, or any of them, on such date, ratably
based on the respective aggregate amounts of all such Obligations owing to the
Administrative Agent and the other Secured Parties on such date; and


Last,
the balance, if any, after all of the Obligations have been indefeasibly paid
in full, to the Borrower or as otherwise required by Law.


Subject to Section 2.04(c), amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fourth above shall be applied to satisfy drawings under such
Letters of Credit as they occur. If any amount remains on deposit as Cash
Collateral after all Letters of Credit have either been fully drawn or expired,
such remaining amount shall be applied to the other Obligations, if any, in the
order set forth above.


ARTICLE
X.


ADMINISTRATIVE
AGENT 


10.01   Appointment and Authority.   Each
of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America
to act on its behalf as the Administrative Agent hereunder and under the other
Loan Documents and authorizes the Administrative Agent to take such actions on
its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof or thereof, together with such actions and powers as
are reasonably incidental thereto. The provisions of this Article are
solely for the benefit of the Administrative Agent, the Lenders and the L/C
Issuer, and neither the Borrower nor any other Loan Party shall have rights as
a third party beneficiary of any of such provisions.


10.02   Rights as a Lender.   The
Person serving as the Administrative Agent hereunder shall have the same rights
and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not the Administrative Agent and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated or unless the context otherwise
requires, include the Person serving as the Administrative Agent hereunder in
its individual capacity. Such Person and its Affiliates may accept deposits
from, lend money to, act as the financial advisor or in any other advisory
capacity for and generally engage in any kind of business with the Borrower or
any Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to the
Lenders.


10.03   Exculpatory Provisions.   The
Administrative Agent shall not have any duties or obligations except those
expressly set forth herein and in the other Loan Documents. Without limiting
the generality of the foregoing, the Administrative Agent:


(a)        shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing;


(b)        shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the
Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be
expressly provided for herein or in the other Loan Documents), provided that the Administrative Agent shall not be required
to take any action that, in its opinion or the opinion of its counsel, may
expose the Administrative Agent to liability or that is contrary to any Loan
Document or applicable law; and


(c)        shall
not, except as expressly set forth herein and in the other Loan Documents, have
any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent
or any of its Affiliates in any capacity.



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The Administrative Agent shall not be liable for any
action taken or not taken by it (i) with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary, or as the Administrative Agent shall believe in good faith
shall be necessary, under the circumstances as provided in Sections
11.01 and 9.02) or (ii) in
the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default
unless and until notice describing such Default is given to the Administrative
Agent by the Borrower, a Lender or the L/C Issuer.


The Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty
or representation made in or in connection with this Agreement or any other
Loan Document, (ii) the contents of any certificate, report or other
document delivered hereunder or thereunder or in connection herewith or
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any other
agreement, instrument or document or (v) the satisfaction of any condition
set forth in Article V or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.


10.04   Reliance
by Administrative Agent.   The Administrative Agent shall
be entitled to rely upon, and shall not incur any liability for relying upon,
any notice, request, certificate, consent, statement, instrument, document or
other writing (including any electronic message, Internet or intranet website
posting or other distribution) believed by it to be genuine and to have been
signed, sent or otherwise authenticated by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to have been made by the proper Person, and shall
not incur any liability for relying thereon. In determining compliance with any
condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit or Bankers’ Acceptance, that by its terms must be fulfilled to the
satisfaction of a Lender or the L/C Issuer, the Administrative Agent may
presume that such condition is satisfactory to such Lender or the L/C Issuer
unless the Administrative Agent shall have received notice to the contrary from
such Lender or the L/C Issuer prior to the making of such Loan or the issuance
of such Letter of Credit or Bankers’ Acceptance. The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.


10.05   Delegation
of Duties.   The Administrative Agent may perform any and
all of its duties and exercise its rights and powers hereunder or under any
other Loan Document by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this Article shall
apply to any such sub-agent and to the Related Parties of the Administrative
Agent and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as Administrative Agent.


10.06   Resignation
of Administrative Agent.   The Administrative Agent may
at any time give notice of its resignation to the Lenders, the L/C Issuer and
the Borrower. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right, in consultation with the Borrower, to appoint a
successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States. If no such
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may on
behalf of the Lenders and the L/C Issuer, appoint a successor Administrative
Agent meeting the qualifications set forth above; provided
that if the Administrative Agent shall notify the Borrower and the Lenders that
no qualifying Person has 



 A-99
 









accepted such appointment,
then such resignation shall nonetheless become effective in accordance with
such notice and (1) the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any Collateral
held by the Administrative Agent on behalf of the Lenders or the L/C Issuer
under any of the Loan Documents, the retiring Administrative Agent shall continue
to hold such Collateral until such time as a successor Administrative Agent is
appointed) and (2) all payments, communications and determinations
provided to be made by, to or through the Administrative Agent shall instead be
made by or to each Lender and the L/C Issuer directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above
in this Section. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring
(or retired) Administrative Agent, and the retiring Administrative Agent shall
be discharged from all of its duties and obligations hereunder or under the
other Loan Documents (if not already discharged therefrom as provided above in
this Section). The fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise
agreed between the Borrower and such successor. After the retiring
Administrative Agent’s resignation hereunder and under the other Loan
Documents, the provisions of this Article and Section 11.04
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative
Agent was acting as Administrative Agent.


Any resignation by
Bank of America as Administrative Agent pursuant to this Section shall
also constitute its resignation as L/C Issuer and Swing Line Lender. Upon the
acceptance of a successor’s appointment as Administrative Agent hereunder, (a) such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring L/C Issuer and Swing Line Lender, (b) the
retiring L/C Issuer and Swing Line Lender shall be discharged from all of their
respective duties and obligations hereunder or under the other Loan Documents,
and (c) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit and/or Bankers’ Acceptances, if any,
outstanding at the time of such succession or make other arrangements
satisfactory to the retiring L/C Issuer to effectively assume the obligations
of the retiring L/C Issuer with respect to such Letters of Credit and/or
Bankers’ Acceptances.


10.07   Non-Reliance
on Administrative Agent and Other Lenders.   Each Lender
and the L/C Issuer acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related
Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and the L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this
Agreement, any other Loan Document or any related agreement or any document
furnished hereunder or thereunder.


10.08   No
Other Duties, Etc.   Anything herein to the contrary
notwithstanding, none of the Bookrunners, Arrangers, Syndication Agents or
Documentation Agents listed on the cover page hereof shall have any
powers, duties or responsibilities under this Agreement or any of the other
Loan Documents, except in its capacity, as applicable, as the Administrative
Agent, a Lender or the L/C Issuer hereunder.


10.09   Administrative
Agent May File Proofs of Claim.   In
case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective
of whether the principal of any Loan or L/C—BA Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any 



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demand on the Borrower)
shall be entitled and empowered, by intervention in such proceeding or
otherwise


(a)        to
file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C—BA Obligations and all other
Obligations that are owing and unpaid and to file such other documents as may
be necessary or advisable in order to have the claims of the Lenders, the L/C
Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C
Issuer and the Administrative Agent and their respective agents and counsel and
all other amounts due the Lenders, the L/C Issuer and the Administrative Agent
under Sections 2.04(i) and (j), 2.10 and 11.04) allowed in such judicial proceeding; and


(b)        to
collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;


and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to the Administrative Agent and, in the event that the Administrative
Agent shall consent to the making of such payments directly to the Lenders and
the L/C Issuer, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.10
and 11.04.


Nothing contained
herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or the L/C Issuer any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative
Agent to vote in respect of the claim of any Lender in any such proceeding.


10.10   Collateral
and Guaranty Matters.   The
Lenders and the L/C Issuer irrevocably authorize the Administrative Agent, at
its option and in its discretion,


(a)        to
release any Pledged Interest and any Lien on any property granted to or held by
the Administrative Agent under any Loan Document (i) upon the occurrence
of the Facility Termination Date, (ii) that is Disposed or to be Disposed
as part of or in connection with any Disposition permitted hereunder or under
any other Loan Document, (iii) as provided in Section 7.15(c) with
respect to Subsidiaries that become Unrestricted Subsidiaries in accordance
with the terms of this Agreement, or (iv) subject to Section 11.01,
if approved, authorized or ratified in writing by the Required Lenders;


(b)        to
subordinate any Lien on any property granted to or held by the Administrative
Agent under any Loan Document to the holder of any Lien on such property that
is permitted by Section 8.01(k); and


(c)        to
release any Guarantor from its obligations under the Guaranty if such Person
ceases to be a Restricted Subsidiary as a result of a transaction permitted
hereunder (including pursuant to its designation as an Unrestricted Subsidiary
in compliance with the terms hereof, including Section 7.15).


Upon request by the
Administrative Agent at any time, the Required Lenders will confirm in writing
the Administrative Agent’s authority to release or subordinate its interest in
particular types or items of property, or to release any Guarantor from its
obligations under the Guaranty pursuant to this Section 10.10.



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ARTICLE XI.

MISCELLANEOUS 


11.01   Amendments,
Etc.   No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the
Borrower or any other Loan Party therefrom, shall be effective unless in
writing signed by the Required Lenders and the Borrower or the applicable Loan
Party, as the case may be, and acknowledged by the Administrative Agent, and
each such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided,
however, that no such amendment, waiver
or consent shall:


(a)        waive
any condition set forth in Section 5.01(a) without
the written consent of each Lender except to the extent otherwise provided for
in Section 5.01(a);


(b)        extend
or increase (i) the Revolving Credit Commitment of any Revolving Lender
(or reinstate any Revolving Credit Commitment terminated pursuant to Section 9.02) without the written consent of such
Revolving Lender, or (ii) the obligation of any Term Lender to make any
portion of either Term Loan without the written consent of such Term Lender;


(c)        postpone
any date fixed by this Agreement or any other Loan Document for any payment
(but excluding the delay or waiver of any mandatory prepayment) of principal,
interest, fees or other amounts due to the Lenders (or any of them), including
the Term Loan A Maturity Date, the Term Loan B Maturity Date and the Revolving
Credit Maturity Date, or any scheduled
reduction of the Aggregate Revolving Credit Commitments hereunder or
under any other Loan Document, in each case without the written consent of each
Lender directly affected thereby;


(d)        reduce
the principal of, or the rate of interest specified herein on, any Loan or L/C—BA
Borrowing, or (subject to clause (v) of the second proviso to this Section 11.01) any fees or other amounts payable
hereunder or under any other Loan Document, without the written consent of each
Lender directly affected thereby; provided, however, that only the consent of the Required Lenders shall
be necessary (i) to amend the definition of “Default Rate” (so long as
such amendment does not result in the Default Rate being lower than the
interest rate then applicable to Base Rate Loans or Eurocurrency Rate Loans, as
applicable) or to waive any obligation of the Borrower to pay interest or
Letter of Credit—BA Fees at the Default Rate or (ii) to amend any financial covenant hereunder (or any defined
term used therein) even if the effect of such amendment would be to change the
Applicable Rate or amount of prepayment required under Section 2.06(e)(iii) or
(iv);


(e)        change
Section 2.14 or Section 9.03 in a manner that would alter the pro rata
sharing of payments required thereby without the written consent of each Lender
directly affected thereby;


(f)         change
any provision of this Section or
the definition of “Required Lenders” or any other provision hereof specifying
the number or percentage of Lenders required to amend, waive or otherwise
modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender;


(g)        change
any provision of this Section or the definition of “Required Revolving
Lenders” or any other provision hereof specifying the number or percentage of
Revolving Lenders required to amend, waive or otherwise modify any rights
hereunder or make any determination or grant any consent hereunder, without the
written consent of each Revolving Lender;


(h)        change
any provision of this Section or the definition of “Required Term Loan A
Lenders” or any other provision hereof specifying the number or percentage of
Term Loan A Lenders required to amend, waive or otherwise modify any rights
hereunder or make any determination or grant any consent hereunder, without the
written consent of each Term Loan A Lender;



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(i)         change
any provision of this Section or the definition of “Required Term Loan B
Lenders” or any other provision hereof specifying the number or percentage of
Term Loan B Lenders required to amend, waive or otherwise modify any rights
hereunder or make any determination or grant any consent hereunder, without the
written consent of each Term Loan B Lender;


(j)         impose
any greater restriction on the ability of any Lender to assign any of its
rights or obligations hereunder without the written consent of Lenders having
more than 50% of the Aggregate Credit Exposures then in effect within each of
the following classes of commitments: (i) the class consisting of the
Revolving Lenders, (ii) the class consisting of the Term Loan A Lenders,
and (iii) the class consisting of the Term Loan B Lenders; provided that for purposes of this clause, the aggregate
amount of each Lender’s risk participation and funded participation in L/C—BA
Obligations and Swing Line Loans shall be deemed to be held by such Lender;


(k)        release
any Guarantor from the Guaranty without the written consent of each Lender,
except to the extent such Guarantor is the subject of a Disposition permitted
by Section 8.05 (in which case such
release may be made by the Administrative Agent acting alone);


(l)         release
all or a material part of the Collateral without the written consent of each
Lender except with respect to Dispositions and releases of Collateral permitted
or required hereunder (including pursuant to Section 8.05)
or as provided in the other Loan Documents (in which case such release may be
made by the Administrative Agent acting alone);


(m)      reduce
the number or type of events that give rise to a mandatory prepayment pursuant
to Section 2.06(e) or change the
order or manner of application of the Net Cash Proceeds provided therein, in
each case without the written consent of each Lender directly affected thereby
(it being understood that the delay or waiver of any particular mandatory
prepayment, without the permanent waiver or removal of such type of mandatory
prepayment, shall not be included in this Section 11.01(m));
or


(n)        amend Section 1.08
or the definition of “Alternative Currency” without the written consent of each
Lender directly affected thereby;


and, provided  further, that (i) no amendment, waiver or consent
shall, unless in writing and signed by the L/C Issuer in addition to the
Lenders required above, affect the rights or duties of the L/C Issuer under
this Agreement or any Issuer Document relating to any Letter of Credit or
Bankers’ Acceptance issued or to be issued by it; (ii) no amendment,
waiver or consent shall, unless in writing and signed by the Swing Line Lender
in addition to the Lenders required above, affect the rights or duties of the
Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent
shall, unless in writing and signed by the Administrative Agent in addition to
the Lenders required above, affect the rights or duties of the Administrative
Agent under this Agreement or any other Loan Document; (iv) Section 11.06(h) may not be amended, waived or otherwise
modified without the consent of each Granting Lender all or any part of whose
Loans are being funded by an SPC at the time of such amendment, waiver or other
modification; (v) each of the Bank of America Fee Letter and the
JPMorgan Fee Letter may be amended, or rights or privileges thereunder waived,
in a writing executed only by the respective parties thereto; (vi) no
amendment, waiver or consent which has the effect of enabling the Borrower to
satisfy any condition to a Borrowing contained in Section 5.02
hereof which, but for such amendment, waiver or consent would not be satisfied,
shall be effective to require the Revolving Lenders, the Swing Line Lender or
the L/C Issuer to make any additional Revolving Loan or Swing Line Loan, or to
issue any additional or renew any existing Letter of Credit or issue any
Bankers’ Acceptance, unless and until the Required Revolving Lenders (or, if
applicable, all Revolving Lenders) shall have approved such amendment, waiver
or consent; and (vii) notwithstanding anything to the contrary in this Section 11.01, each Lender agrees that, upon the
execution thereof by the Administriatve Agent, the Borrower and the Guarantors
after the Closing Date, the Fronting Structure Amendment shall thereupon be and
become fully effective as an amendment to this Agreement without any further
notice to, action by or consent of any Lender (it being understood that the 



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final Fronting Structure Amendment will be made
available to the Lenders). Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder, except that the Revolving Credit Commitment of
such Lender may not be increased or extended without the consent of such Lender.


11.02   Notices;
Effectiveness; Electronic Communication.


(a)        Notices Generally.   Except in the case of notices and
other communications expressly permitted to be given by telephone or in the
case of notices otherwise expressly provided herein (and except as provided in
subsection (b) below), all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as
follows:


(i)         if to
the Borrower, the Administrative Agent, the L/C Issuer or the Swing Line
Lender, to the address, telecopier number, electronic mail address or telephone
number specified for such Person on Schedule 11.02,
as changed pursuant to subsection (d) below; and


(ii)       if to
any other Lender, to the address, telecopier number, electronic mail address or
telephone number specified in its Administrative Questionnaire, as changed
pursuant to subsection (d) below.


Notices sent by hand or overnight courier service, or
mailed by certified or registered mail, shall be deemed to have been given when
received; notices sent by telecopier shall be deemed to have been given when
sent (except that, if not given during normal business hours for the recipient,
shall be deemed to have been given at the opening of business on the next
business day for the recipient). Notices delivered through electronic
communications to the extent provided in subsection (b) below, shall be
effective as provided in such subsection (b).


(b)        Electronic Communications.   Notices and other
communications to the Lenders and the L/C Issuer hereunder may be delivered or
furnished by electronic communication (including e-mail and Internet or
intranet websites) pursuant to procedures approved by the Administrative Agent,
provided that the foregoing shall not
apply to notices to any Lender or the L/C Issuer pursuant to Article II if such Lender or the L/C Issuer, as
applicable, has notified the Administrative Agent that it is incapable of
receiving notices under such Article by electronic communication. The
Administrative Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it, provided that
approval of such procedures may be limited to particular notices or
communications.


Unless the
Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by
the “return receipt requested” function, as available, return e-mail or other
written acknowledgement), provided that
if such notice or other communication is not sent during the normal business
hours of the recipient, such notice or communication shall be deemed to have
been sent at the opening of business on the next business day for the
recipient, and (ii) notices or communications posted to an Internet or
intranet website shall be deemed received upon the deemed receipt by the
intended recipient at its e-mail address as described in the foregoing clause (i) of
notification that such notice or communication is available and identifying the
website address therefor.


(c)        The Platform.   THE PLATFORM IS PROVIDED “AS IS”
AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE
ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE
PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED 



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OR STATUTORY, INCLUDING
ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE
DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS
OR THE PLATFORM. In no event shall the Administrative Agent or any of its
Related Parties (collectively, the “Agent Parties”) have any liability to the
Borrower, any Lender, the L/C Issuer or any other Person for losses, claims,
damages, liabilities or expenses of any kind (whether in tort, contract or
otherwise) arising out of the Borrower’s or the Administrative Agent’s
transmission of Borrower Materials through the Internet, except to the extent that
such losses, claims, damages, liabilities or expenses are determined by a court
of competent jurisdiction by a final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that
in no event shall any Agent Party have any liability to the borrower, any
Lender, the L/C Issuer or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual damages).


(d)        Change of Address, Etc.   Each of the Borrower, the
Administrative Agent, the L/C Issuer and the Swing Line Lender may change its
address, telecopier or telephone number for notices and other communications
hereunder by notice to the other parties hereto. Each other Lender may change
its address, telecopier or telephone number for notices and other
communications hereunder by notice to the Borrower, the Administrative Agent,
the L/C Issuer and the Swing Line Lender. In addition, each Lender agrees to
notify the Administrative Agent from time to time to ensure that the
Administrative Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which
notices and other communications may be sent and (ii) accurate wire instructions
for such Lender. Furthermore, each Public Lender agrees to cause at least one
individual at or on behalf of such Public Lender to at all times have selected
the “Private Side Information” or similar designation on the content
declaration screen of the Platform (a “Private Side Person”)
in order to enable such Public Lender or its delegate, in accordance with such
Public Lender’s compliance procedures and applicable Law, including United
States Federal and state securities Laws, to make reference to Borrower
Materials that are not made available through the “Public Side Information”
portion of the Platform and that may contain material non-public information
with respect to the Borrower or its securities for purposes of United States
Federal or state securities laws; provided that
nothing in this Agreement shall be deemed to be a consent by any party hereto
to any Private Side Person providing any such Borrower Materials from the “Private
Side” of the Platform that are not available on the “Public Side” of the
Platform to any person at such Public Lender who has not been selected as a
Private Side Person, or otherwise acting in violation of the provisions of Section 11.07 with respect to any such Borrower
Materials.


(e)        Reliance by Administrative Agent, L/C Issuer and Lenders.   The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely
and act upon any notices (including telephonic Revolving Loan Notices, Swing
Line Loan Notices and Term Loan Interest Rate Selection Notices) purportedly
given by or on behalf of the Borrower even if (i) such notices were not
made in a manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof. The
Borrower shall indemnify the Administrative Agent, the L/C Issuer, each Lender
and the Related Parties of each of them from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice purportedly
given by or on behalf of the Borrower. All telephonic notices to and other
telephonic communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.


11.03   No
Waiver; Cumulative Remedies.   No failure by any Lender,
the L/C Issuer or the Administrative Agent to exercise, and no delay by any
such Person in exercising, any right, remedy, power or privilege hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any 



 A-105
 









other right, remedy, power
or privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.


11.04   Expenses;
Indemnity; Damage Waiver.


(a)        Costs and Expenses.   The Borrower shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates and the Arrangers (including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent and the Arrangers), in
connection with the syndication of the credit facilities provided for herein,
the preparation, negotiation, execution, delivery and administration of this
Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the L/C Issuer in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or Banker’s
Acceptance or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, the L/C Issuer,
the Swing Line Lender or the Arrangers (including the fees, charges and
disbursements of any counsel for the Administrative Agent, the Swing Line
Lender, the L/C Issuer or the Arrangers), in connection with the enforcement or
protection of its rights (A) in connection with this Agreement and the
other Loan Documents, including its rights under this Section, or (B) in
connection with the Loans made or Letters of Credit issued hereunder, including
all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.


(b)        Indemnification by the Borrower.   The Borrower shall
indemnify the Administrative Agent (and any sub-agent thereof), each Lender and
the L/C Issuer, and each Related Party of any of the foregoing Persons (each
such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses
(including the reasonable fees, charges and disbursements of any counsel for
any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee
by any third party or by the Borrower or any other Loan Party arising out of,
in connection with, or as a result of (i) the execution or delivery of
this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto of their
respective obligations hereunder or thereunder, the consummation of the
transactions contemplated hereby or thereby or, in the case of the
Administrative agent (and any sub-agent thereof) and its Related Parties only,
the administration of this Agreement and the other Loan Documents, (ii) any
Loan, Letter of Credit or Bankers’ Acceptance or the use or proposed use of the
proceeds therefrom (including any refusal by the L/C Issuer to honor a demand
for payment under a Letter of Credit or Bankers’ Acceptance if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit or Bankers’ Acceptance), (iii) any actual or
alleged presence or release of Hazardous Materials on or from any property
owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by the
Borrower or any other Loan Party, and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses (x) are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result
from a claim brought by the Borrower or any other Loan Party against an
Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder
or under any other Loan Document, if the Borrower or such Loan Party has
obtained a final and nonappealable judgment in its favor on such claim as
determined by a court of competent jurisdiction.



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(c)        Reimbursement by Lenders.   To the extent that the
Borrower for any reason fails to indefeasibly pay any amount required under
subsection (a) or (b) of this Section to be paid by it to the
Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related
Party of any of the foregoing, each Lender severally agrees to pay to the
Administrative Agent (or any such sub-agent), the L/C Issuer or such Related
Party, as the case may be, such Lender’s pro rata share (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought
based on such Lender’s portion of Loans, commitments and risk participations
with respect to the Revolving Credit Facility and the Term Loan Facilities) of
such unpaid amount, provided that
the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity
as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent) or L/C Issuer in connection with
such capacity. The obligations of the Lenders under this subsection (c) are
subject to the provisions of Section 2.13(d);
provided further that any amount due
exclusively to the L/C Issuer in its capacity as such shall be borne pursuant
to this Section 11.04(c) pro rata by
the Revolving Lenders, and not by any Term Lender.


(d)        Waiver of Consequential Damages, Etc.   To the fullest
extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan, Letter of
Credit or Bankers’ Acceptance or the use of the proceeds thereof. No Indemnitee
referred to in subsection (b) above shall be liable for any damages
arising from the use by unintended recipients of any information or other
materials distributed by it through telecommunications, electronic or other
information transmission systems in connection with this Agreement or the other
Loan Documents or the transactions contemplated hereby or thereby.


(e)        Payments.   All amounts due under this Section shall
be payable not later than ten Business Days after demand therefor.


(f)         Survival.   The agreements in this Section shall
survive the resignation of the Administrative Agent, the L/C Issuer and the
Swing Line Lender, the replacement of any Lender and the occurrence of the
Facility Termination Date.


11.05   Payments
Set Aside.   To the extent that any payment by or on
behalf of the Borrower is made to the Administrative Agent, the L/C Issuer or
any Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises
its right of setoff, and such payment or the proceeds of such setoff or any
part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by the Administrative Agent, the L/C Issuer or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to
the extent of such recovery, the obligation or part thereof originally intended
to be satisfied shall be revived and continued in full force and effect as if
such payment had not been made or such setoff had not occurred, and (b) each
Lender and the L/C Issuer severally agrees to pay to the Administrative Agent
upon demand its applicable share (without duplication) of any amount so
recovered from or repaid by the Administrative Agent, plus
interest thereon from the date of such demand to the date such payment is made
at a rate per annum equal to the applicable Overnight Rate from time to time in
effect, in the applicable currency of such recovery or payment. The obligations
of the Lenders and the L/C Issuer under clause (b) of
the preceding sentence shall survive the occurrence of the Facility Termination
Date.



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11.06   Successors
and Assigns.


(a)        Successors and Assigns Generally.   The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except
that the Borrower may not assign
or otherwise transfer any of its rights or obligations hereunder without the
prior written consent of the Administrative Agent and each Lender and no Lender
may assign or otherwise transfer any of its rights or obligations hereunder
except (i) to an Eligible Assignee in accordance with the provisions of subsection
(b) of this Section, (ii) by way of participation in accordance with
the provisions of subsection (d) of this Section, (iii) by way of
pledge or assignment of a security interest subject to the restrictions of
subsection (f) of this Section, or
(iv) to an SPC in accordance with the provisions of subsection (h) of
this Section (and any other attempted assignment or transfer by any
party hereto shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants
to the extent provided in subsection (d) of this Section and, to the
extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.


(b)        Assignments by Lenders.   Any Lender may at any time
assign to one or more Eligible Assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Revolving
Credit Commitment and its Revolving Loans (including for purposes of this
subsection (b), participations in L/C—BA Obligations and in Swing Line Loans),
of its Pro Rata Term A Share of the Term Loan A at the time owing to it, or of
its Pro Rata Term B Share of the Term Loan B at the time owing to it (such
Lender’s portion of Loans, commitments and risk participations with respect to
each of the Revolving Credit Facility and the Term Loan Facilities (each, an “Applicable Facility”)
being referred to in this Section 11.06
as its “Applicable Share”))
at the time owing to it); provided that


(i)         except
in the case of an assignment of the entire remaining amount of the assigning
Lender’s Applicable Share of the Applicable Facility at the time owing to it or
in the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund with respect to a Lender, the aggregate amount of the Applicable
Share (which for this purpose includes Loans outstanding thereunder) with
respect to each Applicable Facility, determined as of the date the Assignment
and Assumption with respect to such assignment is delivered to the
Administrative Agent or, if “Trade Date” is specified in the Assignment and
Assumption, as of the Trade Date, shall not be less than (A) $5,000,000
with respect to the Revolving Credit Facility and (B) $1,000,000 with
respect to each Term Loan Facility, unless in either case each of the
Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed), provided, however, that concurrent assignments to members of an
Assignee Group and concurrent assignments from members of an Assignee Group to
a single Eligible Assignee (or to an Eligible Assignee and members of its
Assignee Group) will be treated as a single assignment for purposes of
determining whether such minimum amount has been met;


(ii)       each
partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement with
respect to the Applicable Facility, except that this clause (ii) shall
not (A) prohibit any Lender from assigning all or a portion of its rights
and obligations among the Applicable Facilities on a non-pro rata basis or (B) apply
to rights in respect of Swing Line Loans;


(iii)      any
assignment of a Revolving Credit Commitment must be approved by the Administrative
Agent, the L/C Issuer and the Swing Line Lender (which consent shall not be
unreasonably withheld) unless the Person that is the proposed assignee is
itself a Lender or an 



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Affiliate of a Lender
(whether or not the proposed assignee would otherwise qualify as an Eligible
Assignee); and


(iv)       the
parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation
fee in the amount of $3,500, provided that
the Administrative Agent may, in its sole discretion, elect to waive such
processing and recordation fee in the case of any assignment, and the Eligible
Assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire.


Subject to
acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the
effective date specified in each Assignment and Assumption, the Eligible
Assignee thereunder shall be a party to this Agreement and, to the extent of
the interest assigned by such Assignment and Assumption, have the rights and
obligations of a Revolving Lender or a Term Lender, as applicable, under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall
continue to be entitled to the benefits of Sections 4.01, 4.04, 4.05, and 11.04 with respect to facts and circumstances occurring
prior to the effective date of such assignment. Upon request, the Borrower (at
its expense) shall execute and deliver applicable Notes to the assignee Lender.
Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with subsection (d) of
this Section.


(c)        Register.   The Administrative Agent, acting solely for
this purpose as an agent of the Borrower (in such capacity, subject to Section 11.17), shall maintain at the Administrative
Agent’s Office a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Revolving Credit Commitments of, and principal amounts of the Loans and L/C—BA
Obligations owing to, each Lender pursuant to the terms hereof from time to
time (the “Register”).
The entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by each of the Borrower and the L/C
Issuer at any reasonable time and from time to time upon reasonable prior
notice. In addition, at any time that a request for a consent for a material or
substantive change to the Loan Documents is pending, any Lender may request and
receive from the Administrative Agent a copy of the Register.


(d)        Participations.   Any Lender may at any time, without
the consent of, or notice to, the Borrower or the Administrative Agent, sell
participations to any Person (other than a natural person or the Borrower or
any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all
or a portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Revolving Credit Commitment and/or the Loans
(including such Lender’s participations in L/C—BA Obligations and/or Swing Line
Loans) owing to it); provided that (i) such
Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative
Agent, the Lenders and the L/C Issuer shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement.


Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, 



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waiver
or other modification described in the first proviso to Section 11.01
that affects such Participant. Subject to subsection (e) of this Section,
the Borrower agrees that each Participant shall be entitled to the benefits of Sections 4.01, 4.04 and 4.05 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to subsection (b) of this Section.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 11.08 as though it were a
Lender, provided such Participant agrees to be
subject to Section 2.14 as though it were a
Lender.


(e)        Limitations upon Participant Rights.   A Participant
shall not be entitled to receive any greater payment under Section 4.01
or 4.04 than the applicable Lender would
have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower’s prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 4.01 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 4.01(e) as
though it were a Lender.


(f)         Certain Pledges.   Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under this
Agreement (including under its Note, if any) to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.


(g)        Electronic Execution of Assignments.   The words “execution,”
“signed,” “signature,” and words of like import in any Assignment and
Assumption shall be deemed to include electronic signatures or the keeping of
records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as
provided for in any applicable law, including the Federal Electronic Signatures
in Global and National Commerce Act, the New York State Electronic Signatures
and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.


(h)        Special Purpose Funding Vehicles.   Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special
purpose funding vehicle identified as such in writing from time to time by the
Granting Lender to the Administrative Agent and the Borrower (an “SPC”) the option
to provide all or any part of any Loan that such Granting Lender would
otherwise be obligated to make pursuant to this Agreement; provided
that (i) nothing herein shall constitute a commitment by any SPC to fund
any Loan, and (ii) if an SPC elects not to exercise such option or
otherwise fails to make all or any part of such Loan, the Granting Lender shall
be obligated to make such Loan pursuant to the terms hereof or, if it fails to
do so, to make such payment to the Administrative Agent as is required under Section 2.13(b)(ii). Each party hereto hereby agrees
that (i) neither the grant to any SPC nor the exercise by any SPC of such
option shall increase the costs or expenses or otherwise increase or change the
obligations of the Borrower under this Agreement (including its obligations
under Section 4.04), (ii) no SPC
shall be liable for any indemnity or similar payment obligation under this
Agreement for which a Lender would be liable, and (iii) the Granting
Lender shall for all purposes, including the approval of any amendment, waiver
or other modification of any provision of any Loan Document, remain the lender
of record hereunder. The making of a Loan by an SPC hereunder shall utilize the
Revolving Credit Commitment or commitment to make an applicable Term Loan of
the Granting Lender to the same extent, and as if, such Loan were made by such
Granting Lender. In furtherance of the foregoing, each party hereto hereby
agrees (which agreement shall survive the occurrence of the Facility
Termination Date) that, prior to the date that is one year and one day after
the payment in full of all outstanding commercial paper or other senior debt of
any SPC, it will not institute against, or join any other Person in instituting
against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or
liquidation proceeding under the laws of the United States or any State thereof.
Notwithstanding anything to the contrary contained herein, any SPC may (i) with
notice to, but 



 A-110
 









without prior consent of
the Borrower and the Administrative Agent and with the payment of a processing fee
in the amount of $2,500, assign all or any portion of its right to receive
payment with respect to any Loan to the Granting Lender and (ii) disclose
on a confidential basis any non-public information relating to its funding of
Loans to any rating agency, commercial paper dealer or provider of any surety
or Guarantee or credit or liquidity enhancement to such SPC.


(i)         Resignation as L/C Issuer or Swing Line Lender after Assignment.   Notwithstanding
anything to the contrary contained herein, if at any time Bank of America or
JPMorgan assigns all of its Revolving
Credit Commitment, Revolving Loans, any Pro Rata Term A Share of the
Term Loan A and any Pro Rata Term B Share of the Term Loan B pursuant to
subsection (b) above, such Person may, (i) upon 30 days’ notice to
the Borrower and the Lenders, resign as L/C Issuer and/or (ii) in the case
of Bank of America, upon 30 days’ notice to the Borrower, resign as Swing Line
Lender. In the event of any such resignation as L/C Issuer or Swing Line
Lender, the Borrower shall be entitled to appoint from among the Lenders
willing to serve in such capacity a successor L/C Issuer or Swing Line Lender
hereunder, as the case may be; provided, however, that no failure by the Borrower to appoint any such
successor shall affect the resignation of such Person as L/C Issuer or Swing
Line Lender, as the case may be. If Bank of America or JPMorgan Chase Bank, N.A
resigns as L/C Issuer, such Person shall retain all the rights, powers,
privileges and duties of the L/C Issuer hereunder with respect to all Letters
of Credit and Bankers’ Acceptances outstanding as of the effective date of its
resignation as L/C Issuer and all L/C—BA Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Loans or fund
risk participations in Unreimbursed Amounts pursuant to Section 2.04(c)).
If Bank of America resigns as Swing Line Lender, it shall retain all the rights
of the Swing Line Lender provided for hereunder with respect to Swing Line
Loans made by it and outstanding as of the effective date of such resignation,
including the right to require the Lenders to make Base Rate Loans or fund risk
participations in outstanding Swing Line Loans pursuant to Section 2.05(c).
Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the
case may be, and (b) the successor L/C Issuer shall issue letters of
credit in substitution for the Letters of Credit and/or Bankers’ Acceptances,
if any, outstanding at the time of such successor or make other arrangements
satisfactory to the retiring L/C Issuer to effectively assume the obligations
of such L/C Issuer with respect to such Letters of Credit and/or Bankers’
Acceptances.


11.07   Treatment
of Certain Information; Confidentiality.   Each of the
Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates’
respective partners, directors, trustees, officers, employees, agents, advisors
and representatives (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to
the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an
agreement containing provisions substantially the same as those of this
Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement or any Eligible Assignee invited to be a Lender pursuant to Section 2.15(c) or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower and its obligations, (g) with the
consent of the Borrower or (h) to the extent such Information (x) becomes
publicly available other than as a result of a breach of this Section or (y) becomes
available to the Administrative Agent, any Lender, the L/C Issuer or any of
their respective Affiliates on a nonconfidential basis from a source other than
the Borrower.



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For purposes of this Section, “Information” means
all information received from the Borrower or any  Subsidiary relating to the Borrower or any  Subsidiary or any of their respective
businesses, other than any such information that is available to the
Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis
prior to disclosure by the Borrower or any  Subsidiary,
provided that, in the case of
information received from the Borrower or any
Subsidiary after the date hereof, any information not marked “PUBLIC”
at the time of delivery will be deemed to be confidential; provided, that any
information marked “PUBLIC may also be marked “Confidential”. Any Person
required to maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.


Each of the
Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the
Information may include material non-public information concerning the Borrower
or a  Subsidiary, as the case may
be, (b) it has developed compliance procedures regarding the use of
material non-public information and (c) it will handle such material
non-public information in accordance with applicable Law, including Federal and
state securities Laws.


11.08   Right
of Setoff.   If an Event of Default shall have occurred
and be continuing, each Lender, the L/C Issuer and each of their respective
Affiliates is hereby authorized at any time and from time to time, after obtaining the prior written consent of
the Administrative Agent, to the fullest extent permitted by applicable
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Lender, the L/C
Issuer or any such Affiliate to or for the credit or the account of the
Borrower against any and all of the obligations of the Borrower now or
hereafter existing under this Agreement or any other Loan Document to such
Lender or the L/C Issuer, irrespective of whether or not such Lender or the L/C
Issuer shall have made any demand under this Agreement or any other Loan
Document and although such obligations of the Borrower  may
be contingent or unmatured or are owed to a branch or office of such Lender or
the L/C Issuer different from the branch or office holding such deposit or
obligated on such indebtedness. The rights of each Lender, the L/C Issuer and
their respective Affiliates under this Section are in addition to other
rights and remedies (including other rights of setoff) that such Lender, the
L/C Issuer or their respective Affiliates may have. Each Lender and the L/C
Issuer agrees to notify the Borrower and the Administrative Agent promptly
after any such setoff and application, provided that
the failure to give such notice shall not affect the validity of such setoff
and application.


11.09   Interest
Rate Limitation.   Notwithstanding anything to the
contrary contained in any Loan Document, the interest paid or agreed to be paid
under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the “Maximum Rate”). If the Administrative Agent
or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if
it exceeds such unpaid principal, refunded to the Borrower. In determining
whether the interest contracted for, charged, or received by the Administrative
Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent
permitted by applicable Law, (a) characterize any payment that is not
principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations hereunder.



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11.10   Counterparts;
Integration; Effectiveness.   This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which
when taken together shall constitute a single contract. This Agreement and the
other Loan Documents constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 5.01, this Agreement
shall become effective when it shall have been executed by the Administrative
Agent and when the Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the other parties
hereto. Delivery of an executed counterpart of a signature page of this
Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.


11.11   Survival
of Representations and Warranties.   All representations
and warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.


11.12   Severability.   If
any provision of this Agreement or the other Loan Documents is held to be
illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the parties
shall endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.


11.13   Replacement
of Lenders.   If any Lender requests compensation under Section 4.04, if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 4.01,
if any Lender is a Defaulting Lender, or if any Lender fails to approve any
amendment, waiver or consent requested by Borrower pursuant to Section 11.01 that has received the written approval of
not less than the Required Lenders but also requires the approval of such
Lender, then in each such case the Borrower may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in, and consents required by, Section 11.06), all of its interests, rights and
obligations under this Agreement and the related Loan Documents to an assignee
that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment), provided that:


(a)        the
Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section 11.06(b);


(b)        such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and L/C—BA Advances, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder and under the other Loan
Documents (including any amounts under Section 4.05)
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts);


(c)        in the
case of any such assignment resulting from a claim for compensation under Section 4.04 or payments required to be made pursuant
to Section 4.01, such assignment will
result in a reduction in such compensation or payments thereafter;



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(d)        in the
case of any such assignment resulting from the refusal of a Lender to approve a
requested amendment, waiver or consent, the Person to whom such assignment is
being made has agreed to approve such requested amendment, waiver or consent;
and


(e)        such
assignment does not conflict with applicable Laws.


A Lender shall not
be required to make any such assignment or delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.


11.14   Governing
Law; Jurisdiction; Etc.


(a)        GOVERNING LAW.   THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


(b)        SUBMISSION TO JURISDICTION.   THE BORROWER IRREVOCABLY
AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY
AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK,
AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE
COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL
COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING
IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE
ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO
BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.


(c)        WAIVER OF VENUE.   THE BORROWER IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.


(d)        SERVICE OF PROCESS.   EACH PARTY HERETO IRREVOCABLY
CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
APPLICABLE LAW.


11.15   Waiver
of Jury Trial.   EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE 



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TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


11.16   USA
PATRIOT Act Notice.   Each Lender that is subject to the
Act (as hereinafter defined) 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 “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 Act.


11.17   No Advisory or Fiduciary Responsibility.   In connection with all aspects
of each transaction contemplated hereby (including in connection with any
amendment, waiver or other modification hereof or of any other Loan Document),
the Borrower acknowledges and agrees, and acknowledges its Affiliates’ understanding,
that: (i) (A) the arranging and other services regarding this
Agreement provided by the Administrative Agent, JPMorgan and the Arrangers are
arm’s-length commercial transactions between the Borrower and its Affiliates,
on the one hand, and the Administrative Agent, JPMorgan and the Arrangers, on
the other hand, (B) the Borrower has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate, and (C) the
Borrower is capable of evaluating, and understands and accepts, the terms,
risks and conditions of the transactions contemplated hereby and by the other
Loan Documents; (ii) (A) each of the Administrative Agent, JPMorgan
and the Arrangers is and has been acting solely as a principal and, except as
expressly agreed in writing by the relevant parties, has not been, is not, and
will not be acting as an advisor, agent or fiduciary for the Borrower or any of
its Affiliates or any other Person and (B) neither the Administrative
Agent, JPMorgan nor either Arranger has any obligation to the Borrower or any
of its Affiliates with respect to the transactions contemplated hereby except
those obligations expressly set forth herein and in the other Loan Documents
and (iii) the Administrative Agent, JPMorgan and the Arrangers and their
respective Affiliates may be engaged in a board range of transactions that
involve interests that differ from those of the Borrower and its Affiliates,
and neither the Administrative Agent, JPMorgan nor either Arranger has any
obligation to disclose any of such interests to the Borrower or its Affiliates.
To the fullest extent permitted by law, the Borrower hereby waives and releases
any claims that it may have against the Administrative Agent, JPMorgan and each
Arranger with respect to any breach or alleged breach of agency or fiduciary
duty in connection with any aspect of any transaction contemplated hereby.


[Remainder
of page is intentionally left blank; signature pages follow.]



 A-115















IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.




	
  

  	
  MUELLER WATER PRODUCTS, INC.

  
	
   

  	
  By:

  	
  /s/ WALTER A. SMITH

  
	
   

  	
  Name:

  	
  Walter A. Smith

  
	
   

  	
  Title:

  	
  Senior Vice President and Treasurer

  
	
   

  	
  MUELLER
  GROUP, LLC, solely for purposes of Section 1.01(i) of
  this Agreement

  
	
   

  	
  By:

  	
  /s/ WALTER A. SMITH

  
	
   

  	
  Name:

  	
  Walter A. Smith

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
  BANK OF
  AMERICA, N.A., as Administrative Agent

  
	
   

  	
  By:

  	
  /s/ W. THOMAS BARNETT

  
	
   

  	
  Name:

  	
  W. Thomas Barnett

  
	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
  BANK OF
  AMERICA, N.A., as a Lender, L/C Issuer and Swing Line
  Lender

  
	
   

  	
  By:

  	
  /s/ W. THOMAS BARNETT

  
	
   

  	
  Name:

  	
  W. Thomas Barnett

  
	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
  JPMORGAN
  CHASE BANK, N.A., as a Lender and L/C Issuer

  
	
   

  	
  By:

  	
  /s/ SUZANNE ERGASTOLO

  
	
   

  	
  Name:

  	
  Suzanne Ergastolo

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
  CITICORP
  USA, INC., as a Lender

  
	
   

  	
  By:

  	
  /s/ JEFFREY A. NEIKIRK

  
	
   

  	
  Name:

  	
  Jeffrey A. Neikirk

  
	
   

  	
  Title:

  	
  Managing Director

  
													







 A-116
 









 




	
  

  	
  CALYON NEW YORK BRANCH,
  as a Lender

  
	
   

  	
  By:

  	
  /s/ SAMUEL L.
  HILL

  
	
   

  	
  Name:

  	
  Samuel L. Hill

  
	
   

  	
  Title:

  	
  Managing Director & Regional Manager

  
	
   

  	
  By: 

  	
  /s/ BRIAN MYERS

  
	
   

  	
  Name:

  	
  Brian Myers

  
	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
  SUNTRUST
  BANK, as a Lender

  
	
   

  	
  By:

  	
  /s/ STACY M. LEWIS

  
	
   

  	
  Name:

  	
  Stacy M. Lewis

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
  RAYMOND
  JAMES BANK, FSB, as a Lender

  
	
   

  	
  By:

  	
  /s/ ANDREW D. HAHN

  
	
   

  	
  Name:

  	
  Andrew D. Hahn

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
  FIFTH THIRD
  BANK, A MICHIGAN BANKING CORPORATION, as a Lender

  
	
   

  	
  By:

  	
  /s/ JOHN A. MARIAN

  
	
   

  	
  Name:

  	
  John A. Marian

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
  NORTH FORK
  BUSINESS CAPITAL CORP., as a Lender

  
	
   

  	
  By:

  	
  /s/ PAUL DELLOVA

  
	
   

  	
  Name:

  	
  Paul Dellova

  
	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
  COMERICA
  BANK, as a Lender

  
	
   

  	
  By:

  	
  /s/ STACEY V. JUDD

  
	
   

  	
  Name:

  	
  Stacey V. Judd

  
	
   

  	
  Title:

  	
  Vice President

  
													







 A-117
 









 




	
  

  	
  CAROLINA FIRST BANK, as
  a Lender

  
	
   

  	
  By:

  	
  /s/ KEVIN M.
  SHORT

  
	
   

  	
  Name:

  	
  Kevin M. Short

  
	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
  KBC BANK
  N.A., as a Lender

  
	
   

  	
  By:

  	
  /s/ THOMAS G. JACKSON

  
	
   

  	
  Name:

  	
  Thomas G. Jackson

  
	
   

  	
  Title:

  	
  First Vice President

  
	
   

  	
  By:

  	
  /s/ JEAN-PIERRE DIELS

  
	
   

  	
  Name:

  	
  Jean-Pierre Diels

  
	
   

  	
  Title:

  	
  First Vice President

  
	
   

  	
  PNC BANK,
  NATIONAL ASSOCIATION, as a Lender

  
	
   

  	
  By:

  	
  /s/ LOUIS K. MCLINDEN

  
	
   

  	
  Name:

  	
  Louis K. McLinden

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
  TD BANKNORTH,
  N.A., as a Lender

  
	
   

  	
  By:

  	
  /s/ JEFFREY R. WESTLING

  
	
   

  	
  Name:

  	
  Jeffrey R. Westling

  
	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
  THE ROYAL
  BANK OF SCOTLAND, PLC, as a Lender

  
	
   

  	
  By: 

  	
  /s/ ANGELA REILLY

  
	
   

  	
  Name: 

  	
  Angela Reilly

  
	
   

  	
  Title: 

  	
  Managing Director

  
	
   

  	
  THE BANK
  OF NEW YORK, as a Lender

  
	
   

  	
  By: 

  	
  /s/ DAVID C. SIEGEL

  
	
   

  	
  Name: 

  	
  David C. Siegel

  
	
   

  	
  Title: 

  	
  Vice President

  
															







 A-118
 









 




	
  

  	
  ISRAEL DISCOUNT BANK OF NEW YORK,
  as a Lender

  
	
   

  	
  By: 

  	
  /s/ ANDY
  BALLTA

  
	
   

  	
  Name: 

  	
  Andy Ballta

  
	
   

  	
  Title: 

  	
  First Vice President

  
	
   

  	
  By: 

  	
  /s/ WALTER T. DUFFY III

  
	
   

  	
  Name: 

  	
  Walter T. Duffy III

  
	
   

  	
  Title: 

  	
  First Vice President

  
	
   

  	
  KEYBANK
  NATIONAL ASSOCIATION, as a Lender

  
	
   

  	
  By: 

  	
  /s/ THOMAS J. PURCELL

  
	
   

  	
  Name: 

  	
  Thomas J. Purcell

  
	
   

  	
  Title: 

  	
  Senior Vice President

  
	
   

  	
  THE NORTHERN
  TRUST COMPANY, as a Lender

  
	
   

  	
  By: 

  	
  /s/ JOHN C. CANTY

  
	
   

  	
  Name: 

  	
  John C. Canty

  
	
   

  	
  Title: 

  	
  Vice President

  
	
   

  	
  FIRSTRUST
  BANK, as a Lender

  
	
   

  	
  By: 

  	
  /s/ ELLEN FRANK

  
	
   

  	
  Name: 

  	
  Ellen Frank

  
	
   

  	
  Title: 

  	
  Vice President

  
											






 



 A-119