Exhibit 10.5


 


	
   

  



$1,100,000,000


 


CREDIT AGREEMENT


 


Dated as of November 10,
2006,


 


Among


 


GENERAC ACQUISITION CORP.,


 


GPS CCMP MERGER CORP.,


 


THE LENDERS PARTY HERETO,


 


GOLDMAN SACHS CREDIT
PARTNERS L.P.,


as Administrative Agent,


 


JPMORGAN CHASE BANK, N.A.,


as Syndication Agent,


 


and


 


BARCLAYS BANK PLC,


 


as Documentation Agent


 






 


	
  GOLDMAN SACHS CREDIT PARTNERS L.P.

  	
   

  	
  J.P. MORGAN SECURITIES INC.

  



as Joint Lead Arrangers and as Joint
Bookrunners


	
   

  



 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  
	
   

  
	
  Definitions

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
  Defined Terms

  	
  1

  
	
  SECTION 1.02.

  	
  Terms Generally

  	
  34

  
	
  SECTION 1.03.

  	
  Effectuation of Transactions

  	
  35

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  II

  
	
   

  
	
  The
  Credits

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
  Commitments

  	
  35

  
	
  SECTION 2.02.

  	
  Loans and Borrowings

  	
  35

  
	
  SECTION 2.03.

  	
  Requests for Borrowings

  	
  36

  
	
  SECTION 2.04.

  	
  Swingline Loans

  	
  37

  
	
  SECTION 2.05.

  	
  Letters of Credit

  	
  38

  
	
  SECTION 2.06.

  	
  Funding of Borrowings

  	
  42

  
	
  SECTION 2.07.

  	
  Interest Elections

  	
  42

  
	
  SECTION 2.08.

  	
  Termination and Reduction of Commitments

  	
  43

  
	
  SECTION 2.09.

  	
  Repayment of Loans; Evidence of Debt

  	
  44

  
	
  SECTION 2.10.

  	
  Repayment of Term Loans and Revolving Facility Loans

  	
  45

  
	
  SECTION 2.11.

  	
  Prepayment of Loans

  	
  46

  
	
  SECTION 2.12.

  	
  Fees

  	
  47

  
	
  SECTION 2.13.

  	
  Interest

  	
  48

  
	
  SECTION 2.14.

  	
  Alternate Rate of Interest

  	
  48

  
	
  SECTION 2.15.

  	
  Increased Costs

  	
  49

  
	
  SECTION 2.16.

  	
  Break Funding Payments

  	
  50

  
	
  SECTION 2.17.

  	
  Taxes

  	
  50

  
	
  SECTION 2.18.

  	
  Payments Generally; Pro Rata Treatment; Sharing of
  Set-offs

  	
  51

  
	
  SECTION 2.19.

  	
  Mitigation Obligations; Replacement of Lenders

  	
  53

  
	
  SECTION 2.20.

  	
  Illegality

  	
  54

  
	
  SECTION 2.21.

  	
  Incremental Extensions of Credit

  	
  54

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  III

  
	
   

  
	
  Representations
  and Warranties

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01.

  	
  Organization; Powers

  	
  55

  
	
  SECTION 3.02.

  	
  Authorization

  	
  56

  
	
  SECTION 3.03.

  	
  Enforceability

  	
  56

  
	
  SECTION 3.04.

  	
  Governmental Approvals

  	
  56

  
	
  SECTION 3.05.

  	
  Financial Statements

  	
  56

  
	
  SECTION 3.06.

  	
  No Material Adverse Effect

  	
  57

  
	
  SECTION 3.07.

  	
  Title to Properties; Possession Under Leases

  	
  57

  
	
  SECTION 3.08.

  	
  Subsidiaries

  	
  57

  
	
  SECTION 3.09.

  	
  Litigation; Compliance with Laws

  	
  57

  



 


i

















 


	
  SECTION 3.10.

  	
  Investment Company Act

  	
  58

  
	
  SECTION 3.11.

  	
  Use of Proceeds

  	
  58

  
	
  SECTION 3.12.

  	
  Federal Reserve Regulations

  	
  58

  
	
  SECTION 3.13.

  	
  Tax Returns

  	
  58

  
	
  SECTION 3.14.

  	
  No Material Misstatements

  	
  58

  
	
  SECTION 3.15.

  	
  Employee Benefit Plans

  	
  59

  
	
  SECTION 3.16.

  	
  Environmental Matters

  	
  59

  
	
  SECTION 3.17.

  	
  Security Documents

  	
  60

  
	
  SECTION 3.18.

  	
  Solvency

  	
  60

  
	
  SECTION 3.19.

  	
  Labor Matters

  	
  61

  
	
  SECTION 3.20.

  	
  Insurance

  	
  61

  
	
  SECTION 3.21.

  	
  Transaction
  Documents

  	
  61

  
	
  SECTION 3.22.

  	
  Patriot Act

  	
  61

  
	
  SECTION 3.23.

  	
  No Default

  	
  62

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IV

  
	
   

  
	
  Conditions
  of Lending

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
  All Credit Events

  	
  62

  
	
  SECTION 4.02.

  	
  First Credit Event

  	
  63

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
   

  
	
  Affirmative Covenants

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
  Existence; Businesses and Properties

  	
  65

  
	
  SECTION 5.02.

  	
  Insurance

  	
  66

  
	
  SECTION 5.03.

  	
  Taxes

  	
  66

  
	
  SECTION 5.04.

  	
  Financial Statements, Reports, etc.

  	
  66

  
	
  SECTION 5.05.

  	
  Litigation and Other Notices

  	
  68

  
	
  SECTION 5.06.

  	
  Compliance with Laws

  	
  69

  
	
  SECTION 5.07.

  	
  Maintaining Records; Access to Properties and
  Inspections

  	
  69

  
	
  SECTION 5.08.

  	
  Compliance with Environmental Laws

  	
  69

  
	
  SECTION 5.09.

  	
  Further Assurances; Mortgages

  	
  70

  
	
  SECTION 5.10.

  	
  Fiscal Year; Accounting

  	
  71

  
	
  SECTION 5.11.

  	
  Maintenance of Ratings

  	
  71

  
	
  SECTION 5.12.

  	
  Interest Rate Protection

  	
  71

  
	
  SECTION 5.13.

  	
  Use of Proceeds

  	
  71

  
	
  SECTION 5.14.

  	
  Certification of Public Information

  	
  71

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VI

  
	
   

  
	
  Negative
  Covenants

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01.

  	
  Indebtedness

  	
  72

  
	
  SECTION 6.02.

  	
  Liens

  	
  75

  
	
  SECTION 6.03.

  	
  Sale and Lease-Back Transactions

  	
  78

  
	
  SECTION 6.04.

  	
  Investments, Loans and Advances

  	
  78

  
	
  SECTION 6.05.

  	
  Mergers, Consolidations, Sales of Assets and
  Acquisitions

  	
  80

  
	
  SECTION 6.06.

  	
  Dividends and Distributions

  	
  83

  



 


ii

















 


	
  SECTION 6.07.

  	
  Transactions with Affiliates

  	
  84

  
	
  SECTION 6.08.

  	
  Business of Holdings, the Borrower and the
  Subsidiaries

  	
  86

  
	
  SECTION 6.09.

  	
  Limitation
  on Modifications of Indebtedness; Modifications of Certificate of
  Incorporation, By-Laws and Certain Other Agreements; etc.

  	
  86

  
	
  SECTION 6.10.

  	
  Total Leverage Ratio

  	
  89

  
	
  SECTION 6.11.

  	
  Swap Agreements

  	
  89

  
	
  SECTION 6.12.

  	
  Capital Expenditures

  	
  89

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VII

  
	
   

  
	
  Events of
  Default

  
	
   

  	
   

  	
   

  
	
  SECTION 7.01.

  	
  Events of Default

  	
  90

  
	
  SECTION 7.02.

  	
  Holdings’s Right to Cure

  	
  93

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII

  
	
   

  
	
  The
  Agents

  
	
   

  	
   

  	
   

  
	
  SECTION 8.01.

  	
  Appointment

  	
  93

  
	
  SECTION 8.02.

  	
  Delegation of Duties

  	
  94

  
	
  SECTION 8.03.

  	
  Exculpatory Provisions

  	
  94

  
	
  SECTION 8.04.

  	
  Reliance by Administrative Agent

  	
  94

  
	
  SECTION 8.05.

  	
  Notice of Default

  	
  94

  
	
  SECTION 8.06.

  	
  Non-Reliance on Agents and Other Lenders

  	
  95

  
	
  SECTION 8.07.

  	
  Indemnification

  	
  95

  
	
  SECTION 8.08.

  	
  Agent in Its Individual Capacity

  	
  95

  
	
  SECTION 8.09.

  	
  Successor Administrative Agent

  	
  96

  
	
  SECTION 8.10.

  	
  Syndication Agent and Documentation Agent

  	
  96

  
	
  SECTION 8.11.

  	
  Withholding Tax

  	
  96

  
	
  SECTION 8.12.

  	
  Co-Collateral Agent; Separate Collateral Agent

  	
  96

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IX

  
	
   

  
	
  Miscellaneous

  
	
   

  	
   

  	
   

  
	
  SECTION 9.01.

  	
  Notices

  	
  97

  
	
  SECTION 9.02.

  	
  Survival of Agreement

  	
  98

  
	
  SECTION 9.03.

  	
  Binding Effect

  	
  98

  
	
  SECTION 9.04.

  	
  Successors and Assigns

  	
  98

  
	
  SECTION 9.05.

  	
  Expenses; Indemnity

  	
  101

  
	
  SECTION 9.06.

  	
  Right of Set-off

  	
  103

  
	
  SECTION 9.07.

  	
  Applicable Law

  	
  103

  
	
  SECTION 9.08.

  	
  Waivers; Amendment

  	
  103

  
	
  SECTION 9.09.

  	
  Interest Rate Limitation

  	
  105

  
	
  SECTION 9.10.

  	
  Entire Agreement

  	
  105

  
	
  SECTION 9.11.

  	
  WAIVER OF JURY TRIAL

  	
  106

  
	
  SECTION 9.12.

  	
  Severability

  	
  106

  
	
  SECTION 9.13.

  	
  Counterparts

  	
  106

  
	
  SECTION 9.14.

  	
  Headings

  	
  106

  
	
  SECTION 9.15.

  	
  Jurisdiction; Consent to Service of Process

  	
  106

  



 


iii

















 


	
  SECTION 9.16.

  	
  Confidentiality

  	
  107

  
	
  SECTION 9.17.

  	
  Release of Liens and Guarantees

  	
  108

  
	
  SECTION 9.18.

  	
  USA PATRIOT Act

  	
  108

  
	
  SECTION 9.19.

  	
  Marshalling; Payments Set Aside

  	
  108

  
	
  SECTION 9.20.

  	
  Obligations Several; Independent Nature of Lenders’
  Rights

  	
  108

  
	
  SECTION 9.21.

  	
  Electronic
  Execution of Assignments

  	
  109

  



 


	
  Exhibits and Schedules

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of Assignment
  and Acceptance

  	
   

  
	
  Exhibit B

  	
  Form of
  Administrative Questionnaire

  	
   

  
	
  Exhibit C-1

  	
  Form of Borrowing
  Request

  	
   

  
	
  Exhibit C-2

  	
  Form of Swingline
  Borrowing Request

  	
   

  
	
  Exhibit D

  	
  Form of Interest
  Election Request

  	
   

  
	
  Exhibit E

  	
  Form of Collateral
  Agreement

  	
   

  
	
  Exhibit F

  	
  Form of Solvency
  Certificate

  	
   

  
	
  Exhibit G

  	
  Form of Subordination
  Provisions

  	
   

  
	
  Exhibit H

  	
  Form of Intercompany
  Note

  	
   

  
	
  Exhibit I

  	
  Form of Compliance
  Certificate

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 1.01(a)

  	
  Swap Agreements

  	
   

  
	
  Schedule 1.01(b)

  	
  Existing Letters of Credit

  	
   

  
	
  Schedule 2.01

  	
  Commitments

  	
   

  
	
  Schedule 3.04

  	
  Governmental Approvals

  	
   

  
	
  Schedule 3.08(a)

  	
  Subsidiaries

  	
   

  
	
  Schedule 3.17

  	
  Financing Statements and
  Other Filings

  	
   

  
	
  Schedule 3.20

  	
  Insurance

  	
   

  
	
  Schedule 5.09

  	
  Mortgaged Properties

  	
   

  
	
  Schedule 6.01

  	
  Indebtedness

  	
   

  
	
  Schedule 6.02(a)

  	
  Liens

  	
   

  
	
  Schedule 6.04

  	
  Investments

  	
   

  
	
  Schedule 6.07

  	
  Transactions with
  Affiliates

  	
   

  



 


iv

















 


CREDIT
AGREEMENT dated as of November 10, 2006 (this “Agreement”), among GPS
CCMP MERGER CORP., a Wisconsin corporation (the “Company”), GENERAC
ACQUISITION CORP., a Delaware corporation (“Holdings”), the LENDERS
party hereto from time to time, GOLDMAN SACHS CREDIT PARTNERS L.P. (“GSCP”),
as administrative agent (in such capacity, the “Administrative Agent”), JP
MORGAN CHASE BANK, N.A., as syndication agent (in such capacity, the “Syndication
Agent”), BARCLAYS BANK PLC, as documentation agent (in such capacity, the “Documentation
Agent”), and GOLDMAN SACHS CREDIT PARTNERS L.P. and J.P. MORGAN SECURITIES
INC. as joint lead arrangers and joint bookrunners (in such capacities, the “Joint
Lead Arrangers”).


 


Pursuant
to and in connection with the Merger Agreement (with such term and each other
capitalized term used but not defined in this preamble having the meaning
assigned thereto in Article I) and the transactions contemplated
thereby, (a) the Second Lien Financing will be consummated, (b) the
Merger will be consummated in accordance with the terms of the Merger Agreement
and (c) the Transaction Costs will be paid.


 


The
Borrower has requested that the Lenders extend credit in the form of (a) Term
Loans on the Closing Date in an aggregate principal amount of
$950.0 million, (b) Revolving Facility Loans and Letters of Credit at
any time on or after the Closing Date and from time to time prior to the
Revolving Facility Maturity Date, in an aggregate principal amount at any time
outstanding not in excess of $150.0 million; provided that the
aggregate amount of Revolving Facility Loans made (excluding the face amount of
Letters of Credit issued) on the Closing Date will not exceed $25.0 million.


 


The
Lenders are willing to extend such credit to the Borrower, the Swingline Lender
is willing to make Swingline Loans to the Borrower and the Issuing Bank is
willing to issue Letters of Credit for the account of the Borrower on the terms
and subject to the conditions set forth herein. 
Accordingly, the parties hereto agree as follows:


 


ARTICLE
I


 


Definitions


 


SECTION 1.01.             Defined Terms. 
As used in this Agreement, the following terms shall have the meanings
specified below:


 


“ABR”
shall mean for any day, a rate per annum equal to the greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective Rate
in effect on such day plus 1⁄2 of 1%.  For
purposes hereof: “Prime Rate” shall mean the rate of interest per annum
determined from time to time by JPMorgan Chase Bank, N.A. as its prime rate in
effect at its principal office in New York, City and notified to the Borrower
(the Prime Rate not being intended to be the lowest rate of interest charged by
JPMorgan Chase Bank, N.A. in connection with extensions of credit to
debtors).  Any change in the ABR due to a
change in the Prime Rate or the Federal Funds Effective Rate shall be effective
as of the opening of business on the effective day of such change in the Prime
Rate or the Federal Funds Effective Rate, respectively.


 


“ABR
Borrowing” shall mean a Borrowing comprised of ABR Loans.


 


“ABR
Loan” shall mean any ABR Term Loan, ABR Revolving Loan or Swingline Loan.


 


“ABR
Revolving Facility Borrowing” shall mean a Borrowing comprised of ABR
Revolving Loans.


 

















 


“ABR
Revolving Loan” shall mean any Revolving Facility Loan bearing interest at
a rate determined by reference to the ABR in accordance with the provisions of Article II.


 


“ABR
Term Loan” shall mean any Term Loan bearing interest at a rate determined
by reference to the ABR in accordance with the provisions of Article II.


 


“Additional
Lender” shall have the meaning assigned to such term in Section 2.21.


 


“Adjusted
LIBO Rate” shall mean, with respect to any Eurocurrency Borrowing for any
Interest Period, an interest rate per annum equal to (a) the LIBO Rate in
effect for such Interest Period divided by (b) one minus the Statutory
Reserves applicable to such Eurocurrency Borrowing, if any.


 


“Adjustment
Date” shall have the meaning assigned to such term in the definition of “Applicable
Pricing Grid”.


 


“Administrative
Agent” shall have the meaning assigned to such term in the introductory
paragraph of this Agreement.


 


“Administrative
Agent Fee Letter” shall mean the Fee Letter dated November 9, 2006
between the Borrower and the Administrative Agent.


 


“Administrative
Agent Fees” shall have the meaning assigned to such term in Section 2.12(c).


 


“Administrative
Questionnaire” shall mean an Administrative Questionnaire in the form of Exhibit B.


 


“Affected
Lender” shall have the meaning assigned to such term in Section 2.20.


 


“Affiliate”
shall mean, when used with respect to a specified 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; provided,
however, no Agent or Lender shall be deemed to be an Affiliate of any
Loan Party by virtue of its execution of this Agreement.


 


“Agents”
shall mean the Administrative Agent (and any co-collateral agent or separate collateral
agent appointed by the Administrative Agent pursuant to Section 8.12), the
Syndication Agent and the Documentation Agent.


 


“Agreement”
shall have the meaning assigned to such term in the introductory paragraph of
this Agreement.


 


“Applicable
Margin” shall mean for each Type of Loan, the rate per annum set forth
under the relevant column heading below:


 


	
   

  	
   

  	
  ABR
  Loans

  	
   

  	
  Eurodollar
  Loans

  	
   

  
	
  Revolving Loans and Swingline Loans

  	
   

  	
  1.50

  	
  %

  	
  2.50

  	
  %

  
	
  Term Loans

  	
   

  	
  1.50

  	
  %

  	
  2.50

  	
  %

  



 


2

















 


;
provided, that on and after the first Adjustment Date occurring after
the completion of one full fiscal quarter of the Borrower after the Closing
Date, the Applicable Margin with respect to Revolving Loans and Swingline Loans
will be determined pursuant to the Applicable Pricing Grid.


 


“Applicable
Pricing Grid”:  the table set forth
below:


 


	
  Total Leverage Ratio

  	
   

  	
  Applicable Margin for

  Eurodollar Loans

  	
   

  	
  Applicable Margin for

  ABR Loans

  	
   

  	
  Revolving Credit

  Commitment Fee Rate

  	
   

  
	
  Greater
  than 6.00 to 1.00

  	
   

  	
  2.50

  	
   

  	
  1.50

  	
   

  	
  0.50

  	
   

  
	
  Less
  than 6.00 to 1.00 but greater than 5.00 to 1.00

  	
   

  	
  2.25

  	
   

  	
  1.25

  	
   

  	
  0.50

  	
   

  
	
  Less
  than 5.00 to 1.00

  	
   

  	
  2.00

  	
   

  	
  1.00

  	
   

  	
  0.375

  	
   

  



 


For
the purposes of the Applicable Pricing Grid, changes in the Applicable Margin
resulting from changes in the Total Leverage Ratio shall become effective on
the date (the “Adjustment Date”) that is one Business Day after the date
on which financial statements are delivered to the Lenders pursuant to Section 5.04
and shall remain in effect until the next change to be effected pursuant to
this paragraph.  If any financial
statements referred to above are not delivered within the time periods
specified in Section 5.04, then, until the date that is one
Business Day after the date on which such financial statements are delivered,
the highest rate set forth in each column of the Applicable Pricing Grid shall
apply.  In addition, at all times while
an Event of Default shall have occurred and be continuing, the highest rate set
forth in each column of the Applicable Pricing Grid shall apply.  Each determination of the Total Leverage
Ratio pursuant to the Applicable Pricing Grid shall be made in a manner
consistent with the determination thereof pursuant to Section 6.10.


 


“Assignment
and Acceptance” shall mean an assignment and acceptance entered into by a
Lender and an assignee, and accepted by the Administrative Agent and the
Borrower (if the Borrower’s consent is required by this Agreement), in the form
of Exhibit A or such other form as shall be approved by the Administrative
Agent.


 


“Available
Basket Amount” at any date of determination, an amount (to the extent not
otherwise applied prior to such date) equal to:


 


(a)   the sum of (i) the
Available Excess Cash Flow Amount, (ii) the cumulative amount of cash
proceeds from the sale of Qualified Capital Stock of the Borrower after the
Closing Date the proceeds of which have been received by the Borrower (other
than such proceeds used for the purpose specified in Section 6.09(b) or
for any Specified Equity Contribution) and (iii) the aggregate amount of
Below Threshold Net Proceeds, minus


 


(b)   the sum at the time of
determination of:


 


(i)         any amounts thereof
used to make (A) Investments pursuant to Section 6.04(b) and (q) and
(B) expenditures that would be Capital Expenditures but for paragraph (a) of
the proviso to the definition thereof after the Closing Date and on or prior to
the date of determination, and


 


(ii)        the cumulative amount
of dividends paid and distributions made pursuant to Section 6.06(e)(ii) (without
duplication of amounts paid by the Borrower to Holdings which are


 


3

















 


then
further distributed by Holdings under said section) after the Closing Date and
on or prior to the date of determination.


 


“Available
Excess Cash Flow Amount” shall mean, at any date of determination, (a) 
the sum of the amounts of Excess Cash Flow for all Excess Cash Flow Periods
ending on or prior to such date minus (b) the sum at such date of (i) the
aggregate amount of prepayments required to be made pursuant to Section 2.11(c) through
the date of determination and (ii) the aggregate amount of Voluntary
Prepayments made for all Excess Cash Flow Periods ending on or prior to the
date of determination; provided that, in the case of any Excess Cash
Flow Period which has been completed and in respect of which the amount of
Excess Cash Flow shall have been calculated as contemplated by Section 5.04(c) but
the prepayment required pursuant to Section 2.11(c) is not yet
due and payable in accordance with the provisions of Section 2.11(c) as
of such date of determination, then the amount of Excess Cash Flow for such
Excess Cash Flow Period and the amount of prepayments that will be so required
to be made in respect of such Excess Cash Flow shall be included for purposes
of this definition.


 


“Availability
Period” shall mean the period from and including the Closing Date (subject
to the limitations set forth in Section 2.01(b) with respect
to the Closing Date) to but excluding the earlier of the Revolving Facility
Maturity Date and the date of termination of the Revolving Facility
Commitments.


 


“Available
Unused Commitment” shall mean, with respect to a Revolving Facility Lender
at any time, an amount equal to the amount by which (a) the Revolving
Facility Commitment of such Revolving Facility Lender at such time exceeds (b) the
Revolving Facility Credit Exposure of such Revolving Facility Lender at such
time.


 


“Below
Threshold Net Proceeds” shall mean cash proceeds received by the Borrower
or any of its Restricted Subsidiaries, which in any fiscal year do not exceed
$5 million and which otherwise would constitute Net Proceeds.


 


“Board”
shall mean the Board of Governors of the Federal Reserve System of the United
States of America, or any successor thereto.


 


“Borrower”
shall mean, initially the Company, and after giving effect to the Transactions
on the Closing Date, Generac.


 


“Borrowing”
shall mean a group of Loans of a single Type under a single Facility and made
on a single date and, in the case of Eurocurrency Loans, as to which a single
Interest Period is in effect.


 


“Borrowing
Minimum” shall mean $1.0 million; provided, however,
that with respect to any Swingline Loans, “Borrowing Minimum” shall mean
$250,000.


 


“Borrowing
Multiple” shall mean $500,000; provided, however, that with
respect to any Swingline Loans, “Borrowing Multiple” shall mean $250,000.


 


“Borrowing
Request” shall mean a request by the Borrower in accordance with the terms
of Section 2.03 and, if written, substantially in the form of Exhibit C-1.


 


“Budget”
shall have the meaning assigned to such term in Section 5.04(e).


 


4














 


“Business Day” shall mean any day that is
not a Saturday, Sunday or other day on which commercial banks in New York City
are authorized or required by law or other governmental action to remain
closed; provided that when used in connection with a Eurocurrency Loan,
the term “Business Day” shall also exclude any day on which banks are
not open for dealings in deposits in Dollars in the London interbank market.


 


“Capital Expenditures”:  in respect of any period, the aggregate of
all expenditures incurred by the Borrower and its Restricted Subsidiaries
during such period that, in accordance with GAAP, are required to be classified
as capital expenditures, including Capital Lease Obligations incurred, provided,
however, that Capital Expenditures for the Borrower and the Restricted
Subsidiaries shall not include:


 


(a)   expenditures to the extent they are made with
proceeds of the Available Basket Amount,


 


(b)   expenditures of proceeds of insurance
settlements, condemnation awards and other settlements in respect of lost,
destroyed, damaged or condemned assets, equipment or other property to the
extent such expenditures are made to replace or repair such lost, destroyed,
damaged or condemned assets, equipment or other property or otherwise to
acquire, maintain, develop, construct, improve, upgrade or repair assets or
properties useful in the business of the Borrower and its Restricted
Subsidiaries within 12 months of receipt of such proceeds,


 


(c)   expenditures that are accounted for as
capital expenditures of such person and that actually have been paid for by a
third party (other than the Borrower or any Restricted Subsidiary thereof) and
for which neither the Borrower nor any Restricted Subsidiary has provided or is
required to provide or incur, directly or indirectly, any consideration or
obligation to such third party or any other person (whether before, during or
after such period),


 


(d)   the book value of any asset owned by such
person prior to or during such period to the extent that such book value is
included as a capital expenditure during such period as a result of such person
reusing or beginning to reuse such asset during such period without a
corresponding expenditure actually having been made in such period, provided
that (i) any expenditure necessary in order to permit such asset to be
reused shall be included as a Capital Expenditure during the period that such
expenditure actually is made and (ii) such book value shall have been
included in Capital Expenditures when such asset was originally acquired,


 


(e)   the purchase price of equipment or property
purchased during such period to the extent the consideration therefor consists
of any combination of (i) used or surplus equipment or property traded in
at the time of such purchase and (ii) the proceeds of a reasonably
concurrent sale of used or surplus equipment or property, in each case, in the
ordinary course of business,


 


(f)    expenditures that are accounted for as
capital expenditures in connection with transactions constituting Permitted
Business Acquisitions, or


 


(g)   expenditures under vendor agreements that are
satisfied through non-cash means including the delivery of product.


 


“Capital Lease Obligations” of any person
shall mean the obligations of such person to pay rent or other amounts under
any lease of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such
person under GAAP and, for purposes hereof, the amount


 


5

















 


of such obligations at any time shall be the
capitalized amount thereof at such time determined in accordance with GAAP.


 


“Cash Interest Expense” shall mean, with
respect to the Borrower and its Restricted Subsidiaries on a consolidated basis
for any period Interest Expense paid in cash for such Period.


 


“Cash Management Obligations” shall mean
obligations owed by the Borrower and its Restricted Subsidiaries to any Lender
Counterparty in respect of any overdraft and related liabilities arising from
treasury and cash management services or any automated clearing house transfer
of funds.


 


“CCMP” shall mean CCMP Capital Advisors,
LLC.


 


“Change in Control” shall mean:


 


(a)   the acquisition of record ownership or direct
beneficial ownership (i.e., excluding indirect beneficial ownership through
intermediate entities by any person which is the subject of clause (b) and
(c) below) by any person other than Holdings (or another Parent Entity
that has become a Loan Party) of any Equity Interests in the Borrower, such
that after giving effect thereto Holdings (or another Parent Entity that has
become a Loan Party) shall cease to beneficially own and control 100% of the
Equity Interests of the Company,


 


(b)   prior to a Qualified IPO, the failure by the
Permitted Investors to beneficially own, directly or indirectly, Equity
Interests of Holdings (or another Parent Entity that has become a Loan Party)
representing at least 50% of the aggregate ordinary voting power and economic
interest represented by the issued and outstanding Equity Interests in Holdings
(or another Parent Entity that has a become a Loan Party),


 


(c)   after a Qualified IPO, (i) the
acquisition of beneficial ownership, directly or indirectly, by any person or
group (within the meaning of the Securities Exchange Act of 1934, as amended,
and the rules of the SEC thereunder as in effect on the date hereof),
other than the Permitted Investors, of Equity Interests in Holdings
representing more than 35% of the aggregate ordinary voting power represented
by the issued and outstanding Equity Interests in Holdings and (ii) the
beneficial ownership, directly or indirectly, by the Permitted Investors of
Equity Interests in Holdings representing in the aggregate a lesser percentage
of the aggregate ordinary voting power represented by the issued and
outstanding Equity Interests in Holdings than such person or group, or


 


(d)   occupation of a majority of the seats (other
than vacant seats) on the board of managers (or equivalent governing body) of
Holdings, by persons who were not nominated or appointed by such board of
managers (or equivalent governing body) or by the Permitted Investors, directly
or indirectly (including pursuant to any agreement among equity holders of
Holdings or any other Parent Entity).


 


“Change in Law” shall mean (a) the
adoption of any law, rule or regulation after the Closing Date, (b) any
change in law, rule or regulation or in the interpretation or application
thereof by any Governmental Authority after the Closing Date or (c) compliance
by any Lender or Issuing Bank (or, for purposes of Section 2.15(b),
by any Lending Office of such Lender or by such Lender’s or Issuing Bank’s
holding company, if any) with any written request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the Closing Date.


 


6

















 


“Change in Working Capital” shall mean, with
respect to the Borrower and the Restricted Subsidiaries on a consolidated basis
at any date of determination, the amount of Changes in Current Assets and
Liabilities; provided that, Changes in Working Capital shall be
calculated without regard to any Changes in Current Assets and Liabilities as a
result of (a) any reclassification in accordance with GAAP of assets or
liabilities, as applicable, between current and noncurrent, (b) the
effects of purchase accounting  or (c) the
effect of fluctuations in the amount of accrued or contingent obligations under
Swap Agreements.


 


“Changes in Current Assets and Liabilities”
shall mean the sum of those amounts that comprise the changes in the current
assets (excluding cash and cash equivalents (including Permitted Investments)
and deferred tax accounts) and current liabilities section of the Borrower’s
statement of cash flows as prepared on a consolidated basis excluding tax
accruals and deferred taxes.


 


“Charges” shall have the meaning assigned to
such term in Section 9.09.


 


“Closing Date” shall mean November 10,
2006.


 


“Code” shall mean the Internal Revenue Code
of 1986, as amended from time to time.


 


“Documentation Agent” shall have the meaning
assigned to such term in the introductory paragraph of this Agreement.


 


“Collateral” shall mean all the “Collateral”
as defined in any Security Document and shall also include the Mortgaged
Properties, if any.


 


“Collateral Agreement” shall mean the First
Lien Guarantee and Collateral Agreement, as amended, supplemented or otherwise
modified from time to time, in the form of Exhibit E, among Holdings, the
Borrower, each Subsidiary Loan Party and the Administrative Agent.


 


“Collateral and Guarantee Requirement” shall
mean the requirement that:


 


(a)   on the Closing Date, the Administrative Agent
shall have received (I) from Holdings, the Borrower and each Subsidiary
Loan Party, a counterpart of the Collateral Agreement duly executed and
delivered on behalf of such person and (II) an Acknowledgment and Consent
in the form attached to the Collateral Agreement, executed and delivered by
each issuer of Pledged Collateral (as defined in the Collateral Agreement), if
any, that is a Loan Party,


 


(b)   on the Closing Date or as otherwise provided
in the Collateral Agreement, the Administrative Agent for the benefit of the Secured
Parties shall have received (I) a pledge of all the issued and outstanding
Equity Interests of (A) the Borrower and (B) each Domestic Subsidiary
which is a Restricted Subsidiary owned on the Closing Date directly by or on
behalf of Holdings, the Borrower or any Subsidiary Loan Party; (II) a
pledge of 65% of the outstanding Equity Interests of each “first tier” Foreign
Subsidiary directly owned by Holdings, the Borrower or a Subsidiary Loan Party;
and (III) all certificates or other instruments (if any) representing such
Equity Interests, together with stock powers or other instruments of transfer
with respect thereto endorsed in blank,


 


(c)   on the Closing Date, all Indebtedness having,
in the case of each instance of Indebtedness, an aggregate principal amount in
excess of $5.0 million (other than (i) intercompany current liabilities
incurred in the ordinary course of business in connection with the cash
management operations of Holdings and its Subsidiaries or (ii) to the
extent that a pledge


 


7

















 


of such
promissory note or instrument would violate applicable law) that is owing to
any Loan Party and evidenced by a promissory note or an instrument and shall
have been pledged pursuant to the Collateral Agreement, and the Administrative
Agent for the benefit of the Secured Parties shall have received all such
promissory notes or instruments, together with note powers or other instruments
of transfer with respect thereto endorsed in blank,


 


(d)   on the Closing Date, the Borrower shall grant
to the Administrative Agent (or a co-collateral agent, sub-collateral agent or
separate collateral agent appointed pursuant to Section 8.12) security
interests and mortgages in the Mortgaged Property referred to in Schedule 5.09
owned on the date hereof pursuant to a Mortgage, record or file, the Mortgage
in such manner and in such places as is required by law to establish, perfect,
preserve and protect the Liens pursuant to the Mortgages and pay, all Taxes,
fees and other charges payable in connection therewith.  Unless otherwise waived by the Administrative
Agent, with respect to each such Mortgage, the Borrower shall deliver to the
Administrative Agent contemporaneously therewith (A) a policy or policies
or marked-up unconditional binder of title insurance or foreign equivalent
thereof, as applicable, paid for by the Borrower, issued by a nationally
recognized title insurance company insuring the Lien of each such Mortgage as a
valid first Lien on the Mortgaged Property described therein, free of any other
Liens except as permitted by Section 6.02, together with such
endorsements, coinsurance and reinsurance as the Administrative Agent may
reasonably request and (B) the legal opinions of local U.S. counsel in the
state where such Mortgaged Property is located, in form and substance
reasonably satisfactory to the Administrative Agent,


 


(e)   on the Closing Date, or as otherwise provided
in the Collateral Agreement, the Administrative Agent for the benefit of the
Secured Parties, shall have been granted security interests in personal
property of Holdings, the Borrower or any such Subsidiary Loan Parties in
accordance with the Collateral Agreement,


 


(f)    in the case of any person that becomes a
Subsidiary Loan Party after the Closing Date, the Administrative Agent shall
have received a supplement to the Collateral Agreement, in the form specified
therein, duly executed and delivered on behalf of such Subsidiary Loan Party,


 


(g)   after the Closing Date, (A) all the
outstanding Equity Interests of any person that becomes a Subsidiary Loan Party
after the Closing Date, (B) all the Equity Interests of Borrower issued
after the Closing Date and (C) subject to Section 5.09(g) and
Section 6.02(w), all other Equity Interests of any other Subsidiary
that are acquired by a Loan Party after the Closing Date, shall have been
pledged pursuant to the Collateral Agreement (provided that in no event
shall more than 65% of the issued and outstanding Equity Interests of any “first
tier” Foreign Subsidiary directly owned by such Loan Party be pledged to secure
Obligations of any Loan Party, and in no event shall any of the issued and
outstanding Equity Interests of any Foreign Subsidiary that is not a “first
tier” Foreign Subsidiary be pledged to secure Obligations of any Loan Party),
and the Administrative Agent for the benefit of the Secured Parties shall have
received all certificates or other instruments (if any) representing such
Equity Interests, together with stock powers or other instruments of transfer
with respect thereto endorsed in blank,


 


(h)   except as disclosed on Schedule 3.04
or as otherwise contemplated by any Security Document, all documents and
instruments, including Uniform Commercial Code financing statements, required
by law or reasonably requested by the Administrative Agent to be filed,
registered or recorded to create the Liens intended to be created by the
Security Documents (in each case, including any supplements thereto) and
perfect such Liens to the extent required by, and with the priority required
by, the Security Documents, shall have been filed, registered or recorded or
delivered to the Administrative Agent for filing, registration or the recording


 


8

















 


concurrently
with, or promptly following, the execution and delivery of each such Security
Document, and


 


(i)    On the Closing Date, the Administative Agent
shall have received insurance certificates from the Borrower’s insurance broker
or other evidence reasonably satisfactory to it that all insurance required to
be maintained pursuant to Section 5.02 is in full force and effect
and such certificates shall (i) name the Administrative Agent, as
collateral agent on behalf of the Secured Parties as an additional insured
thereunder as its interests may appear and (ii) in the case of each
casualty insurance policy, contain a loss payable clause or endorsement,
reasonably satisfactory in form and substance to Administrative Agent, that
names the Administrative Agent, on behalf of Lenders as the loss payee
thereunder and provides for at least thirty days’ prior written notice to the
Administrative Agent of any modification or cancellation of such policy.


 


“Collateral Questionnaire” shall mean a
certificate in form reasonably satisfactory to the Administrative Agent that
provides information with respect to the personal or mixed property of each
Loan Party.


 


“Commitments” shall mean (a) with
respect to any Lender, such Lender’s Revolving Facility Commitment and Term
Loan Commitment and (b) with respect to any Swingline Lender, its
Swingline Commitment.


 


“Company” shall have the meaning assigned to
such term in the introductory paragraph of this Agreement.


 


“Company Competitor” shall mean any person
that competes with or controls a person that competes with the business of the
Company from time to time as notified by the Borrower to the Administrative
Agent in writing.


 


“Conduit Lender” shall mean any special
purpose corporation organized and administered by any Lender for the purpose of
making Loans otherwise required to be made by such Lender and designated by
such Lender in a written instrument; provided, that the designation by
any Lender of a Conduit Lender shall not relieve the designating Lender of any
of its obligations to fund a Loan under this Agreement if, for any reason, its
Conduit Lender fails to fund any such Loan, and the designating Lender (and not
the Conduit Lender) shall have the sole right and responsibility to deliver all
consents and waivers required or requested under this Agreement with respect to
its Conduit Lender, and provided, further, that no Conduit Lender
shall (a) be entitled to receive any greater amount pursuant to Section 2.15,
2.16, 2.17 or 9.05 than the designating Lender would have
been entitled to receive in respect of the extensions of credit made by such
Conduit Lender or (b) be deemed to have any Commitment.


 


“Consolidated Net Income” shall mean, with
respect to any person for any period, the aggregate of the Net Income of such
person and its subsidiaries for such period, on a consolidated basis; provided,
however, that, without duplication,


 


(i)         any net after-tax (A) extraordinary,
(B) nonrecurring or (C) unusual gains or losses or income or expenses
(less all fees and expenses relating thereto) including, without limitation,
any severance expenses, and fees, expenses or charges related to any offering
of Equity Interests of Holdings or the Borrower, any Investment or Indebtedness
permitted to be incurred hereunder or refinancings thereof (in each case,
whether or not successful), including any such fees, expenses or charges
related to the Transactions, in each case, shall be excluded,


 


9

















 


(ii)        any net after-tax income or loss from
discontinued operations and any net after-tax gain or loss on disposal of
discontinued operations shall be excluded,


 


(iii)       any net after-tax gain or loss (less all
fees and expenses or charges relating thereto) attributable to business
dispositions or asset dispositions other than in the ordinary course of
business (as determined in good faith by the board of directors (or equivalent
governing body) of the Borrower) shall be excluded,


 


(iv)       any net after-tax income or loss (less
all fees and expenses or charges relating thereto) attributable to the early
extinguishment of indebtedness shall be excluded,


 


(v)        the Net Income for such period of any
person that is not a subsidiary of such person, or is an Unrestricted
Subsidiary, or that is accounted for by the equity method of accounting, shall be
included only to the extent of the amount of dividends or distributions or
other payments (including any ordinary course dividend, distribution or other
payment) paid in cash (or to the extent converted into cash) to the referent
person or a subsidiary thereof in respect of such period,


 


(vi)       consolidated Net Income for such period
shall not include the cumulative effect of a change in accounting principles
during such period, and


 


(vii)      any increase in amortization or
depreciation or any non-cash charges resulting from any amortization, write-up,
write-down or write-off of assets with respect to assets revalued upon the
application of purchase accounting (including tangible and intangible assets,
goodwill, deferred financing costs and inventory (including any adjustment
reflected in the “cost
of goods sold” or similar line item of the financial
statements)) in connection with the Transactions, Permitted Business
Acquisitions or an merger, consolidation or similar transaction not prohibited
hereunder.


 


“Consolidated Senior Secured Debt” at any
date shall mean the sum of (without duplication) (i) the principal of all
Loans of the Borrower and its Restricted Subsidiaries outstanding under this
Agreement plus, (ii) the aggregate principal amount of all other Indebtedness
of the Borrower and its Restricted Subsidiaries (other than Second Lien
Indebtedness) that is secured by any Lien on any asset of the Borrower or any
of its Restricted Subsidiaries, is outstanding at such time is otherwise
included in Consolidated Total Debt and which Lien is not subordinated to the
Liens securing the Loans less the unrestricted (other than to the extent
constituting Collateral) cash and marketable securities (determined in
accordance with GAAP) of the Borrower and its Restricted Subsidiaries on such
date.


 


“Consolidated Total Debt” at any date shall
mean the sum of (without duplication) (i) all Capital Lease Obligations
and Indebtedness of the Borrower and its Restricted Subsidiaries for borrowed
money (excluding letters of credit to the extent undrawn), (ii) Indebtedness
in respect of the deferred purchase price of property or services of the
Borrower and its Restricted Subsidiaries to the extent in the case of clause (ii) such
Indebtedness appears or should appear in the “liabilities” section of the
consolidated balance sheet of the Borrower and its Restricted Subsidiaries in
accordance with GAAP determined on a consolidated basis on such date less the
unrestricted (other than to the extent constituting Collateral) cash and marketable
securities (determined in accordance with GAAP) of the Borrower and its
Restricted Subsidiaries on such date.


 


“Contractual Obligation” means, as applied
to any person, any provision of any security issued by that person or of any
indenture, mortgage, deed of trust, contract, written undertaking,


 


10

















 


agreement or other instrument to which that person
is a party or by which it or any of its properties is bound or to which it or
any of its properties is subject.


 


“Control” shall mean 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 ownership of voting
securities, by contract or otherwise, and “Controlling” and “Controlled”
shall have meanings correlative thereto.


 


“Credit Event” shall have the meaning
assigned to such term in Article IV.


 


“Cure Right” shall have the meaning assigned
to such term in Section 7.02(a).


 


“Default” shall mean any event or condition
that upon notice, lapse of time or both would constitute an Event of Default.


 


“Defaulting Lender” shall mean any Lender
with respect to which a Lender Default is in effect.


 


“Disinterested Director” shall mean, with
respect to any person and transaction, a member of the board of managers (or
equivalent governing body) of such person who does not have any material direct
or indirect financial interest in or with respect to such transaction.


 


“Disqualified Institutions” shall mean
Company Competitors and those banks, financial institutions or other
institutional lenders in each case identified to the Administrative Agent in
writing from time to time.


 


“Dollars” or “$” shall mean lawful money of
the United States of America.


 


“Domestic Subsidiary” shall mean any
Subsidiary that is not a Foreign Subsidiary.


 


“EBITDA” shall mean, with respect to
Borrower and its Restricted Subsidiaries on a consolidated basis for any
period, the Consolidated Net Income of Borrower and the Restricted Subsidiaries
for such period plus (a) the sum of (in each case without
duplication and to the extent the respective amounts described in
subclauses (i) through (x) of this clause (a) reduced
such Consolidated Net Income for the respective period for which EBITDA is
being determined):


 


(i)         provision for Taxes based on income,
profits or capital of the Borrower and the Restricted Subsidiaries for such
period, including, without limitation, state, foreign, franchise and similar
taxes, and Tax Distributions made by the Borrower during such period,


 


(ii)        Interest Expense of the Borrower and the
Restricted Subsidiaries for such period,


 


(iii)       depreciation and amortization expenses of
the Borrower and its Restricted Subsidiaries for such period,


 


(iv)       business optimization expenses and restructuring
charges and reserves (which, for the avoidance of doubt, shall include
retention, severance, systems establishment cost, excess pension charges,
contract termination costs (including future lease commitments) and costs to
consolidate facilities and relocate employees); provided that with
respect to each business optimization expense or restructuring charge or
reserve, the Borrower shall have delivered to the Administrative Agent a
certificate of the Chief Financial Officer of the Borrower specifying and


 


11

















 


quantifying
such expense, charge or reserve and stating that such expense, charge or
reserve is a business optimization expense or restructuring charge or reserve,
as the case may be,


 


(v)        the amount of management, consulting,
monitoring, transaction and advisory fees and related expenses paid to the
Permitted Investors (or any accruals related to such fees and related expenses)
during such period;


 


(vi)       Transaction Costs, cash expenses incurred
directly in connection with any Investment, equity issuance or debt issuance or
refinancings (whether or not consummated),


 


(vii)      any non-cash charges reducing Consolidated
Net Income (excluding any such non-cash charge to the extent it represents an
accrual of or reserve for cash charges in any future period or amortization of
a prepaid cash expense that was paid in a prior period not included in the
calculation),


 


(viii)     letter of credit fees,


 


(ix)       to the extent actually reimbursed,
expenses incurred to the extent covered by indemnification provisions in any
agreement in connection with a Permitted Business Acquisition, and


 


(x)        to the extent covered by insurance under
which the insurer has been properly notified and has not denied or contested
coverage, expenses with respect to liability events, or casualty events or
business interruption,


 


minus (b) (without duplication
and to the extent the amounts described in this clause (b) increased
such Consolidated Net Income for the respective period for which EBITDA is
being determined) income tax credits and distributions and dividends pursuant
to Section 6.06(b)(i) and (iii) and all non-cash gains
increasing Consolidated Net Income of the Borrower and its Restricted
Subsidiaries for such period (but excluding any such gains (x) in respect
of which cash or other assets were received in a prior period or will be
received in a future period or (y) which represent the reversal of any
accrual of, or cash reserve for, anticipated cash charges in any prior period).


 


For purposes of determining EBITDA under this
Agreement for any period that includes any of the fiscal quarters ended December 31,
2005, March 31, 2006, June 30, 2006 and September 30, 2006
EBITDA for such fiscal quarters shall be deemed to be $42,800,000, $40,300,000,
$67,300,000 and $56,400,000, respectively.


 


“Eligible Assignee” shall mean (i) any
Lender, any Affiliate of any Lender and any Related Fund (any two or more
Related Funds being treated as a single Eligible Assignee for all purposes
hereof), and (ii) any commercial bank, insurance company, investment or
mutual fund or other entity that is an “accredited investor” (as defined in
Regulation D under the Securities Act) and which extends credit or buys
loans.


 


“environment” shall mean ambient and indoor air,
surface water and groundwater (including potable water, navigable water and
wetlands), the land surface or subsurface strata, natural resources such as
flora and fauna, the workplace or as otherwise defined in any Environmental
Law.


 


“Environmental Laws” shall mean all laws
(including common law), rules, regulations, codes, ordinances, orders, decrees
or judgments, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural


 


12

















 


resources, the generation, management, Release or
threatened Release of, or actual or alleged exposure to, any Hazardous
Materials or to occupational health and safety (to the extent relating to the
environment or Hazardous Materials).


 


“Equity Interests” of any person shall mean
any and all shares, interests, participations or other equivalents of or
interests in (however designated) equity of such person, including any
preferred stock, any limited or general partnership interest and any limited
liability company membership interest and any and all warrants, rights or
options to purchase or other rights to acquire any of the foregoing.


 


“Equity Financing” shall mean the investment
by CCMP and its Affiliates, directly or indirectly, in common equity or
Qualified Capital Stock of the Borrower in an aggregate amount in cash equal to
not less than 25% of the Pro Forma total consolidated capitalization of the
Borrower after giving effect to the Transactions on the Closing Date.


 


“ERISA” shall mean the Employee Retirement
Income Security Act of 1974, as the same may be amended from time to time.


 


“ERISA Affiliate” shall mean any trade or
business (whether or not incorporated) that, together with Holdings, the
Borrower or a Subsidiary, is treated as a single employer under Section 414(b) or
(c) of the Code, or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.


 


“ERISA Event” shall mean (a) any
Reportable Event; (b) the existence with respect to any Plan of an “accumulated
funding deficiency” (as defined in Section 412 of the Code or Section 302
of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of
the Code or Section 303(d) of ERISA of an application for a
waiver of the minimum funding standard with respect to any Plan, the failure to
make by its due date a required installment under Section 412(m) of
the Code with respect to any Plan or the failure to make any required
contribution to a Multiemployer Plan; (d) the incurrence by Holdings, the
Borrower, a Subsidiary or any ERISA Affiliate of any liability under Title IV
of ERISA with respect to the termination of any Plan; (e) the receipt by
Holdings, the Borrower, a Subsidiary or any ERISA Affiliate from the PBGC or a
plan administrator of any notice relating to an intention to terminate any Plan
or to appoint a trustee to administer any Plan under Section 4042
of ERISA; (f) the incurrence by Holdings, the Borrower, a Subsidiary or
any ERISA Affiliate of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by
Holdings, the Borrower, a Subsidiary or any ERISA Affiliate of any notice, or
the receipt by any Multiemployer Plan from Holdings, the Borrower, a Subsidiary
or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal
Liability or a determination that a Multiemployer Plan is, or is expected to
be, insolvent or in reorganization, within the meaning of Title IV of ERISA.


 


“Eurocurrency Borrowing” shall mean a
Borrowing comprised of Eurocurrency Loans.


 


“Eurocurrency Loan” shall mean any
Eurocurrency Term Loan or Eurocurrency Revolving Loan.


 


“Eurocurrency Revolving Facility Borrowing”
shall mean a Borrowing comprised of Eurocurrency Revolving Loans.


 


“Eurocurrency Revolving Loan” shall mean any
Revolving Facility Loan bearing interest at a rate determined by reference to
the Adjusted LIBO Rate in accordance with the provisions of Article II.


 


13














 


“Eurocurrency
Term Loan” shall mean any Term Loan bearing interest at a rate determined
by reference to the Adjusted LIBO Rate in accordance with the provisions of Article II.


 


“Event
of Default” shall have the meaning assigned to such term in Section 7.01.


 


“Excess
Cash Flow” shall mean, with respect to the Borrower and its Subsidiaries on
a consolidated basis for any Excess Cash Flow Period, an amount (in any case
not less than zero) equal to (A) EBITDA of the Borrower and its
Subsidiaries on a consolidated basis for such Excess Cash Flow Period, minus,
without duplication, (B) the sum of


 


(a)   Cash Interest Expense and
scheduled payments of Indebtedness for such Excess Cash Flow Period,


 


(b)   (i) Capital Expenditures
and (ii) the aggregate consideration paid in cash during the Excess Cash
Flow Period in respect of Investments permitted under Section 6.04
(including Permitted Business Acquisitions) to the extent such Investments are
not financed, or intended to be financed, using the proceeds of the incurrence
of long-term Indebtedness,


 


(c)   Capital Expenditures that the
Borrower or any Restricted Subsidiary shall, during such Excess Cash Flow
Period, become obligated to make, but that are not made during such Excess Cash
Flow Period, provided that the Borrower shall deliver a certificate to
the Administrative Agent in connection with the delivery of the Excess Cash
Flow certificate for such Excess Cash Flow Period, signed by a Responsible
Officer of the Borrower and certifying that such Capital Expenditures will be
completed in the first 125 days of the following Excess Cash Flow Period,


 


(d)   all Taxes based on income,
profits or capital of the Borrower and its Restricted Subsidiaries including
state, foreign, franchise and similar taxes and Tax Distributions made by the
Borrower during such Excess Cash Flow Period or that will be made within six
months after the close of such Excess Cash Flow Period, in each case, paid in
cash, (provided that any amount so deducted in respect of such Taxes or
Tax Distribution that will be made after the close of such Excess Cash Flow
Period shall not be deducted again in a subsequent Excess Cash Flow Period),


 


(e)   an amount equal to any
positive Change in Working Capital of the Borrower and its Restricted
Subsidiaries for such Excess Cash Flow Period,


 


(f)    cash expenditures made in
respect of Swap Agreements during such Excess Cash Flow Period, to the extent
not reflected as a subtraction in the computation of EBITDA (or to the extent
added thereto) or an addition to Cash Interest Expense,


 


(g)   amounts paid in cash during
such Excess Cash Flow Period on account of (x) items that were accounted
for as non-cash reductions of Net Income in determining Consolidated Net Income
or as non-cash reductions of Consolidated Net Income in determining EBITDA of
the Borrower and its Restricted Subsidiaries in a prior Excess Cash Flow Period
and (y) reserves or accruals established in purchase accounting, and


 


(h)   the amount related to items
that were added to or not deducted from Net Income in calculating Consolidated
Net Income or were added to or not deducted from Consolidated Net Income in
calculating EBITDA (including the items referred to in clauses (iv), (v), (vi),
(viii), (ix) and (x) of the definition thereof) to the extent either (x) such
items represented a cash payment (which had not reduced Excess Cash Flow upon
the accrual thereof in a prior Excess Cash Flow


 


14

















 


Period),
or an accrual for a cash payment, by the Borrower and its Restricted
Subsidiaries or (y) such items did not represent cash received by the
Borrower and its Restricted Subsidiaries, in each case on a consolidated basis
during such Excess Cash Flow Period,


 


plus, without duplication, (C) the sum of


 


(a)   an amount equal to any
negative Change in Working Capital for such Excess Cash Flow Period,


 


(b)   to the extent any permitted
Capital Expenditures referred to in clause (B)(c) above do not occur in
the first 125 days of the following Excess Cash Flow Period of the Borrower
specified in the certificate of the Borrower delivered pursuant to
clause (B)(c) above, the amount of such Capital Expenditures that
were not so made in such 125-day period,


 


(c)   cash payments received in
respect of Swap Agreements during such Excess Cash Flow Period to the extent
not included in the computation of EBITDA,


 


(d)   any extraordinary, unusual or
nonrecurring gain realized in cash during such Excess Cash Flow Period (except
to the extent such gain consists of Net Proceeds subject to Section 2.11(b)),


 


(e)   to the extent deducted in the
computation of EBITDA, cash interest income,


 


(f)    the amount of consideration
paid with respect to assets acquired as part of a Permitted Business
Acquisition to the extent such assets have been subsequently disposed of
pursuant to Section 6.05(h) and such amount reduced Excess
Cash Flow in a prior year, and


 


(g)   the amount related to items
that were deducted from or not added to Net Income in connection with
calculating consolidated Net Income or were deducted from or not added to
consolidated Net Income in calculating EBITDA to the extent either (x) such
items represented cash received by the Borrower or any Subsidiary or (y) such
items do not represent cash paid by the Borrower or any Subsidiary, in each
case on a consolidated basis during such Excess Cash Flow Period.


 


“Excess
Cash Flow Period” shall mean each fiscal year of the Borrower commencing
with the 2007 fiscal year.


 


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


 


“Excluded
Taxes” shall mean, with respect to the Administrative Agent, any Lender,
any Issuing Bank or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) income taxes imposed
on (or measured by) its net income (or franchise taxes imposed in lieu of net
income taxes) by the United States of America (or any state thereof) or the
jurisdiction 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 or any other jurisdiction as a result of
such recipient engaging in a trade or business in such jurisdiction for tax
purposes, (b) any branch profits tax or any similar tax that is imposed by
any jurisdiction described in clause (a) above (c) in the case
of a Lender making a Loan to the Borrower, any withholding tax imposed by the
United States or imposed by the jurisdiction in which such Lender is
incorporated or has its principal place of business that (x) is in effect
and would apply to amounts payable hereunder to such Lender at the time


 


15

















 


such Lender becomes a party to such Loan to the
Borrower (or designates a new Lending Office) except to the extent that such
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 a Loan
Party with respect to any withholding tax pursuant to Section 2.17(a) or
Section 2.17(c) or (y) is attributable to such Lender’s
failure to comply with Section 2.17(e) (without giving effect
to the last sentence thereof) with respect to such Loan unless such failure to
comply with Section 2.17(e) is a result of a change in law after the
date such Lender becomes a party to such Loan to the Borrower (or designates a
new Lending Office) and (d) any interest, additions to taxes or penalties
with respect to the foregoing.


 


“Existing
Debt” shall mean the Indebtedness of Holdings and its Subsidiaries in
existence on the Closing Date prior to the consummation of the Transactions to
be consummated on the Closing Date.


 


“Existing
Debt Documents” shall mean any and all of the documents or instruments
governing the Existing Debt.


 


“Existing
Owners” shall mean the Reinvesting Management Group, as such terms are
defined in the Merger Agreement as in effect on the Closing Date.


 


“Existing
Term Loans” shall have the meaning assigned to such term in Section 2.21.


 


“Facility”
shall mean the respective facility and commitments utilized in making Loans and
credit extensions hereunder, it being understood that as of the date of this
Agreement there are two Facilities, i.e., the Term Facility and the
Revolving Facility.


 


“Family
Members” shall mean an individual’s spouse, former spouse, parent,
siblings, children, or other lineal descendants of such individual.


 


“Federal
Funds Effective Rate” shall mean, for any day the rate per annum
(expressed, as a decimal, rounded upwards, if necessary, to the next higher
1/100 of 1%) 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, (i) 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 (ii) 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 charged to Administrative Agent, in its  capacity as a Lender, on such day on such transactions
as determined by Administrative Agent.


 


“Fee
Letter” shall mean that certain Fee Letter dated October 20, 2006 by
and among the Borrower, the Agents and certain other parties.


 


“Fees”
shall mean the Revolving Credit Commitment Fees, the L/C Participation Fees,
the Issuing Bank Fees and the Administrative Agent Fees.


 


“Financial
Officer” of any person shall mean the Chief Financial Officer, principal
accounting officer, Treasurer, Assistant Treasurer or Controller of such
person.


 


“First
Lien Leverage Ratio” shall mean, on any date, the ratio of Consolidated
Senior Secured Debt, as of such date to (b) EBITDA for the relevant Test
Period, all determined on a consolidated basis.


 


16

















 


“First
Lien Term Facility” shall mean the seven-year first lien term loan facility
in aggregate principal amount of $950,000,000 under this Agreement.


 


“Foreign
Lender” shall mean any Lender that is not a “United States person” as
defined in Section 7701(a)(30) of the Code.


 


“Foreign
Subsidiary” shall mean any Subsidiary that is incorporated or organized
under the laws of any jurisdiction other than the United States of America, any
State thereof or the District of Columbia.


 


“GAAP”
shall mean generally accepted accounting principles in effect from time to time
in the United States.


 


“Generac”
shall mean Generac Power Systems, Inc., a Wisconsin corporation.


 


“GSCP”
shall have the meaning assigned to such term in the introductory paragraph of
this Agreement.


 


“Governmental
Authority” shall mean any federal, state, local or foreign court or
governmental agency, authority, instrumentality or regulatory or legislative
body or any entity or officer exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to any government or
any court, in each case whether associated with a state of the United States,
the United States, or a foreign entity or government.


 


“Guarantee”
of or by any person (the “guarantor”) shall mean (a) any
obligation, contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other obligation of any
other person (the “primary obligor”) in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep well, to purchase assets, goods, securities
or services, to take-or-pay or otherwise) or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such
Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof, (iii) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay
such Indebtedness or other obligation, (iv) entered into for the purpose
of assuring in any other manner the holders of such Indebtedness or other
obligation of the payment thereof or to protect such holders against loss in
respect thereof (in whole or in part) or (v) as an account party in
respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or other obligation, or (b) any Lien on any assets of the
guarantor securing any Indebtedness of any other person, whether or not such
Indebtedness or other obligation is assumed by the guarantor; provided, however,
that the term “Guarantee” shall not include endorsements for collection or
deposit, in either case in the ordinary course of business, or customary and
reasonable indemnity obligations in effect on the Closing Date or entered into
in connection with any acquisition or disposition of assets permitted under
this Agreement.  The amount of any
Guarantee for purposes of clause (b) shall be deemed to be equal to
the lesser of (i) the aggregate unpaid amount of such Indebtedness and (ii) the
fair market value of the property encumbered thereby as determined by such
person in good faith.


 


“guarantor”
shall have the meaning assigned to such term in the definition of the term “Guarantee”.


 


17

















 


“Hazardous
Materials” shall mean all pollutants, contaminants, wastes, chemicals,
materials, substances and constituents of any nature which are subject to
regulation by any Governmental Authority or which would reasonably be likely to
give rise to liability under any Environmental Law, including, without
limitation, explosive or radioactive substances or petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated
biphenyls or radon gas.


 


“Holdings”
shall have the meaning assigned to such term in the introductory paragraph of
this Agreement.


 


“Incremental
Extensions of Credit” shall have the meaning assigned to such term in Section 2.21.


 


“Incremental
Facility Amendment” shall have the meaning assigned to such term in Section 2.21.


 


“Incremental
Facility Closing Date” shall have the meaning assigned to such term in Section 2.21.


 


“Indebtedness”
of any person shall mean, without duplication, (a) all obligations of such
person for borrowed money, (b) all obligations of such person evidenced by
bonds, debentures, notes or similar instruments to the extent the same would
appear as a liability on a balance sheet prepared in accordance with GAAP, (c) all
obligations of such person under conditional sale or other title retention
agreements relating to property or assets purchased by such person, (d) all
obligations of such person issued or assumed as the deferred purchase price of
property or services (other than current intercompany liabilities (but not any
refinancings, extensions, renewals or replacements thereof) incurred in the
ordinary course of business and maturing within 365 days after the incurrence
thereof), to the extent that the same would be required to be shown as a long
term liability on a balance sheet prepared in accordance with GAAP, (e) all
Guarantees by such person of Indebtedness of others, (f) all Capital Lease
Obligations of such person, (g) all payments that such person would have
to make in the event of an early termination, on the date Indebtedness of such
person is being determined, in respect of outstanding Swap Agreements net of
payments such person would receive in the event of early termination on such
date of determination, (h) the principal component of all obligations,
contingent or otherwise, of such person as an account party in respect of
letters of credit and (i) the principal component of all obligations of
such person in respect of bankers’ acceptances. 
The Indebtedness of any person shall include the Indebtedness of any
partnership in which such person is a general partner, other than to the extent
that the instrument or agreement evidencing such Indebtedness expressly limits
the liability of such person in respect thereof.  The Indebtedness of the Borrower and the
Restricted Subsidiaries shall exclude (i) accrued expenses and accounts
and trade payables, (ii) liabilities under vendor agreements to the extent
such indebtedness may be satisfied through non-cash means such as purchase
volume earnings credits and (iii) reserves for deferred income taxes.


 


“Indemnified
Taxes” shall mean all Taxes other than Excluded Taxes and Other Taxes.


 


“Indemnitee”
shall have the meaning assigned to such term in Section 9.05(b).


 


“Information”
shall have the meaning assigned to such term in Section 3.14(a).


 


“Information
Memorandum” shall mean the Confidential Information Memorandum dated October 2006,
as modified or supplemented prior to the Closing Date.


 


18

















 


“Intercompany
Note” shall mean the Intercompany Note substantially in the form of Exhibit H.


 


“Intercreditor
Agreement” shall mean the Intercreditor Agreement, dated as of the date
hereof, among the Administrative Agent and the administrative agent under the
Second Lien Credit Agreement, the Collateral Agent and acknowledged by the
Borrower.


 


“Interest
Election Request” shall mean a request by the Borrower to convert or
continue a Term Borrowing or Revolving Facility Borrowing in accordance with Section 2.07.


 


“Interest
Expense” shall mean, with respect to any person for any period, the sum
without duplication of (a) gross interest expense of such person for such
period on a consolidated basis, including (i) the amortization of debt
discounts, (ii) the amortization of all fees (including fees with respect
to Swap Agreements) payable in connection with the incurrence of Indebtedness
to the extent included in interest expense and (iii) the portion of any
payments or accruals with respect to Capital Lease Obligations allocable to
interest expense and (b) capitalized interest of such person.  For purposes of the foregoing, gross interest
expense shall be determined after giving effect to any net payments made or
received and costs incurred by the Borrower and its Restricted Subsidiaries
with respect to Swap Agreements (provided that payments and costs upon
the settlement or termination of a Swap Agreement will not be included in
Interest Expense).


 


“Interest
Payment Date” shall mean, (a) with respect to any Eurocurrency Loan,
the last day of the Interest Period applicable to the Borrowing of which such
Loan is a part and, in the case of a Eurocurrency Borrowing with an Interest
Period of more than three months’ duration, each day that would have been an
Interest Payment Date had successive Interest Periods of three months’ duration
been applicable to such Borrowing and, in addition, the date of any refinancing
or conversion of such Borrowing with or to a Borrowing of a different Type and (b) with
respect to any ABR Loan (including any Swingline Loan), the last day of March,
June, September and December of each year.


 


“Interest
Period” shall mean, as to any Eurocurrency Borrowing, the period commencing
on the date of such Borrowing or on the last day of the immediately preceding
Interest Period applicable to such Borrowing, as applicable, and ending on the
numerically corresponding day (or, if there is no numerically corresponding
day, on the last day) in the calendar month that is 1, 2, 3 or 6 months thereafter
(or 9 or 12 months, if available to all relevant Lenders), as the Borrower may
elect, or the date any Eurocurrency Borrowing is converted to an ABR Borrowing
in accordance with Section 2.07 or repaid or prepaid in accordance
with Section 2.09, 2.10 or 2.11; provided,
unless the Administrative Agent shall otherwise agree, that the Interest Period
for the initial Eurocurrency Borrowing shall be of one month’s duration; provided,
however, that if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day.  Interest shall
accrue from and including the first day of an Interest Period to but excluding
the last day of such Interest Period.


 


“Investment”
shall have the meaning assigned to such term in Section 6.04.


 


“Issuing
Bank” shall mean JPMorgan Chase Bank, N.A., acting through any of its
Affiliates or branches, and each other Issuing Bank designated pursuant to Section 2.05(k),
in each case in its capacity as an issuer of Letters of Credit hereunder, and
its successors in such capacity as provided in Section 2.05(i).  An Issuing Bank may, in its discretion,
arrange for one or more Letters of Credit to be issued by Affiliates of such
Issuing Bank, in which case the term “Issuing Bank” shall include any such
Affiliate with respect to Letters of Credit issued by such Affiliate.


 


19

















 


“Issuing
Bank Fees” shall have the meaning assigned to such term in Section 2.12(b).


 


“Joint
Lead Arrangers” shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.


 


“Joint
Venture” shall mean a joint venture or similar arrangement, whether in
corporate, partnership or other legal form which is not a Subsidiary but in
which the Borrower or any Subsidiary owns or controls any Equity Interests; provided,
in no event shall any corporate Subsidiary of any person be considered to be a
Joint Venture to which such person is a party.


 


“L/C
Disbursement” shall mean a payment or disbursement made by an Issuing Bank
pursuant to a Letter of Credit.


 


“L/C
Participation Fee” shall have the meaning assigned such term in Section 2.12(b).


 


“Lender”
shall mean each financial institution listed on Schedule 2.01
(other than any such person that has ceased to be a party hereto pursuant to an
Assignment and Acceptance in accordance with Section 9.04), as well
as any person that becomes a “Lender” hereunder in accordance with Section 9.04.


 


“Lender
Counterparty” shall mean any counterparty to a Cash Management Obligation
or Swap Agreement that (i) was a Lender on the Closing Date or (ii) at
the time the Cash Management Obligation or Swap Agreement was entered into, was
a Joint Lead Arranger, a Lender, an Issuing Bank or an Affiliate of any
thereof, including each such Affiliate that enters into a joinder agreement
with the Administrative Agent.


 


“Lender
Default” shall mean (i) the refusal (which has not been retracted) or
failure of a Lender to make available its portion of any Borrowing, to acquire
participations in a Swingline Loan pursuant to Section 2.04 or to
fund its portion of any unreimbursed payment under Section 2.05(e) (in
each case, when required to be made available, acquired or funded in accordance
with the terms hereof), or (ii) a Lender having notified the Borrower
and/or the Administrative Agent that it does not intend to comply with its
obligations under Section 2.04, 2.05 or 2.06.


 


“Lending
Office” shall mean, as to any Lender, the applicable branch, office or
Affiliate of such Lender designated by such Lender to make Loans.


 


“Letter
of Credit” shall mean any letter of credit issued pursuant to Section 2.05
and any existing letter of credit listed on Schedule 1.01(b).


 


“LIBO
Rate” shall mean, with respect to any Eurocurrency Borrowing for any
Interest Period, the rate per annum equal to the rate determined by
Administrative Agent to be the offered rate which appears on the page of
the Telerate Screen which displays an average British Bankers Association
Interest Settlement Rate (such page currently being page number 3740
or 3750, as applicable) for deposits (for delivery on the first day of such
period) with a term equivalent to such period in Dollars, determined as of
approximately 11:00 a.m. (London, England time) on the Quotation Day for
such Interest Period, or (b) in the event the rate referenced in the
preceding clause (a) does not appear on such page or service or if
such page or service shall cease to be available, the rate per annum equal
to the rate determined by Administrative Agent to be the offered rate on such
other page or other service which displays an average British Bankers
Association Interest Settlement Rate for deposits (for delivery on the first
day of such period) with a term equivalent to such period in Dollars,
determined as of approximately 11:00 a.m. (London, England time) on the
Quotation Day for such Interest Period, or (c) in the event the rates


 


20

















 


referenced in the preceding clauses (a) and (b) are
not available, the rate per annum equal to the offered quotation rate to first
class banks in the London interbank market by Deutche Bank Trust Company
Americas for deposits (for delivery on the first day of the relevant period) in
Dollars of amounts in same day funds comparable to the principal amount of the
applicable Loan of Administrative Agent, in its capacity as a Lender, for which
the Adjusted Eurodollar Rate is then being determined with maturities
comparable to such period as of approximately 11:00 a.m. (London, England
time) on such Interest Rate Determination Date.


 


“Lien”
shall mean, with respect to any asset, (a) any mortgage, deed of trust,
lien, hypothecation, pledge, encumbrance, charge or security interest in or on
such asset and (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset.


 


“Loan
Documents” shall mean this Agreement, the Intercreditor Agreement, the
Letters of Credit, the Security Documents, the Administrative Agent Fee Letter,
the Fee Letter and any Note issued under Section 2.09(e), any
amendments (including any Incremental Facility Amendment) and waivers to any of
the foregoing.


 


“Loan
Parties” shall mean Holdings, the Borrower and the Subsidiary Loan Parties
and any Parent Entity, in lieu of Holdings, that has executed and delivered an
assumption agreement in substantially the form of Exhibit D to the
Collateral Agreement and become a “Guarantor” and “Grantor” thereunder.


 


“Loans”
shall mean the Term Loans, the Revolving Facility Loans, the Swingline Loans
and loans in respect of Incremental Extensions of Credit.


 


“Local
Time” shall mean New York City time.


 


“Majority
Lenders” of any Facility shall mean, at any time, Lenders under such
Facility having Loans and unused Commitments representing more than 50% of the
sum of all Loans outstanding under such Facility and unused Commitments under
such Facility at such time.


 


“Management
Agreement” means that certain Advisory Services Agreement dated as of November 10,
2006 by and among Generac Acquisition Corp, GPS CCMP Acquisition Corp., Generac
Power Systems, Inc., CCMP Capital Advisors, LLC, and CCMP Capital Asia
PTE, Ltd. and CCMP Capital Asia Consulting Company Ltd.


 


“Management
Group” shall mean the group consisting of the directors, officers and other
management personnel of Holdings, the Borrower and its Restricted Subsidiaries.


 


“Margin
Stock” shall have the meaning assigned to such term in Regulation U.


 


“Material
Adverse Effect” shall mean a material adverse effect on and/or material
adverse developments with respect to the business, property, operations or
condition of the Borrower and its Subsidiaries, taken as a whole.


 


“Maximum
Rate” shall have the meaning assigned to such term in Section 9.09.


 


“Merger”
shall mean the merger of the Company with and into Generac, with Generac being
the surviving corporation, who without any further act or deed shall
automatically by operation of


 


21

















 


law become the Borrower hereunder and assume all of
the obligations, covenants, duties and liabilities of GPS CCMP Merger Corp. as
if originally a party hereto.


 


“Merger
Agreement” shall mean the Agreement and Plan of Merger, dated as of September 13,
2006, by and among Generac, Holdings, the Borrower and Robert D. Kern, as
representative for the shareholders listed on Exhibit A thereto.


 


“Moody’s”
shall mean Moody’s Investors Service, Inc.


 


“Mortgaged
Properties” shall mean the properties listed on Schedule 5.09 and the owned
real properties of the Loan Parties encumbered by a Mortgage pursuant to Section 5.09.


 


“Mortgage”
shall have the meaning assigned to such term in Section 5.09(c).


 


“Multiemployer
Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of
ERISA to which the Borrower, Holdings or any Subsidiary or any ERISA Affiliate
(other than one considered an ERISA Affiliate only pursuant to subsection (m) or
(o) of Code Section 414) is making or accruing an obligation
to make contributions, or has within any of the preceding six plan years made
or accrued an obligation to make contributions.


 


“Net
Income” shall mean, with respect to any person, the net income (loss) of
such person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends.


 


“Net
Proceeds” shall mean:


 


(a)   an amount equal to 100% of
the cash proceeds actually received by the Borrower or any of its Restricted
Subsidiaries, which, in any fiscal year in the aggregate for all such persons
exceeds $5,000,000 (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or purchase
price adjustment receivable or otherwise and including casualty insurance
settlements and condemnation awards, but only as and when received) from any
loss, damage, destruction or condemnation of, or any sale, transfer or other
disposition (including any sale and leaseback of assets and any mortgage or
lease of real property) to any person of any asset or assets of the Borrower or
any Restricted Subsidiary in a single transaction or series of related
transactions (other than those pursuant to Section 6.05(a), (b),
(c), (e), (f), (i), (j), (k), (m),
(n), (o), (p), (r), (t), (u), and (v)),
net of (i) attorneys’ fees, accountants’ fees, investment banking fees,
survey costs, title insurance premiums, and related search and recording
charges, transfer taxes, deed or mortgage recording taxes, payments of debt and
other obligations relating to the applicable asset then due and payable or
required to be paid or discharged by the purchaser, transfer or other
disposition of such asset (other than pursuant hereto or pursuant to any Second
Lien Indebtedness), other customary expenses and brokerage, consultant and
other customary fees and expenses actually incurred in connection therewith, (ii) Taxes
paid or payable as a result thereof or any Tax Distributions resulting
therefrom) and (iii) any reserve for adjustment in respect of (A) the
sale price of such asset or assets established in accordance with GAAP and (B) any
liabilities associated with such asset or assets and retained by the Borrower
or such Restricted Subsidiary after such sale, transfer or other disposition
thereof, including pension and other post-employment benefit obligations
associated with such transaction, provided that if no Event of Default
exists and Holdings or the Borrower shall deliver a certificate of a
Responsible Officer of the Borrower to the Administrative Agent promptly
following receipt of any such proceeds setting forth the Borrower’s intention
to use or commit to use any portion of such proceeds, to acquire, maintain,
develop, construct, improve, upgrade or repair assets useful


 


22

















 


in
the business the Borrower and its Restricted Subsidiaries or make Permitted
Business Acquisitions, in each case within 15 months of such receipt, then such
portion shall not constitute Net Proceeds except to the extent not so used or
not contractually committed to be so used within such 15 month period (it being
understood that (1) any amount so contractually committed to be used
within such 15 month period must be so used within 180 days of such commitment
and (2) if any portion of such proceeds are not so used within such period
(whether because such amount is contractually committed to be used and
subsequent to such date such contract is terminated or expires without such
portion being so used or for any other reason), such remaining portion shall
constitute Net Proceeds (as of the date of such termination or expiration (if
applicable) without giving effect to this proviso), provided that if
such Net Proceeds arose from the sale of an asset of a Loan Party, such
proceeds must be reinvested in the assets of a Loan Party or be permitted as an
Investment pursuant to Section 6.04, and,


 


(b)   an amount equal to 100% of
the cash proceeds received by the Borrower or any Restricted Subsidiary from
the incurrence, issuance or sale by the Borrower or any of its Restricted
Subsidiaries of any Indebtedness (other than Indebtedness permitted by Section 6.01)
net of all taxes and fees (including investment banking fees), commissions,
underwriting discounts, costs and other expenses, in each case incurred in
connection with such issuance or sale.


 


“Non-Consenting
Lender” shall have the meaning assigned to such term in Section 2.19(c).


 


“Nonpublic
Information” shall mean information which has not been disseminated in a
manner making it available to investors generally, within the meaning of
Regulation FD.


 


“Note”
shall have the meaning assigned to such term in Section 2.09(e).


 


“Obligations”
shall mean all obligations of every nature of each Loan Party from time to time
owed to the Agents (including former Agents), the Lenders or any Lender
Counterparties, under any Loan Document or Swap Agreement (including, without
limitation, with respect to a Swap Agreement, (i) obligations owed
thereunder to any person who was a Lender or an Affiliate of a Lender on the
Closing Date or at the time such Swap Agreement was entered into and (ii) Obligations
owed thereunder to the counterparties specified on Schedule 1.01(a) in
respect of the Swap Agreements referred to on Schedule 1.01(a)), whether for
principal, interest (including interest which, but for the filing of a petition
in bankruptcy with respect to such Loan Party, would have accrued on any
Obligation, whether or not a claim is allowed against such Loan Party for such
interest in the related bankruptcy proceeding), reimbursement of amounts drawn
under Letters of Credit, payments for early termination of Swap Agreements,
fees, expenses, indemnification or otherwise. 
For the avoidance of doubt, Incremental Term Loans and Incremental
Revolving Loans incurred pursuant to Section 2.21 shall constitute
Obligations.


 


“Other
Taxes” shall mean any and 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 from the execution, delivery or enforcement of,
or otherwise with respect to, the Loan Documents, and any and all interest and
penalties related thereto.


 


“Parent
Entity” shall mean any of (i) Holdings and (ii) any other person
of which Holdings is a Subsidiary.


 


“Participant”
shall have the meaning assigned to such term in Section 9.04(c).


 


23

















 


“PBGC”
shall mean the Pension Benefit Guaranty Corporation referred to and defined in
ERISA and any successor entity performing similar functions.


 


“Permitted
Business Acquisition” shall mean any acquisition by the Borrower or any
Restricted Subsidiary of all or substantially all of the assets of, or a
majority of the outstanding Equity Interests (other than directors’ qualifying
shares and similar de minimis
holdings required by applicable law) in, a person or division or line of
business of a person, provided that: (i) immediately prior to, and
after giving effect thereto, no Event of Default shall have occurred and be
continuing or would result therefrom; (ii) (A) the Borrower and its
Subsidiaries shall be in compliance, on a Pro Forma Basis with the Total
Leverage Ratio and, the Borrower shall have delivered to the Administrative
Agent at least five days prior to such acquisition a certificate of a
Responsible Officer of the Borrower to such effect, together with all financial
information for such Subsidiary or assets that is reasonably requested by the
Administrative Agent and available to the Borrower, and (B) any acquired
or newly formed Subsidiary shall not be liable for any Indebtedness (except for
Indebtedness permitted by Section 6.01), (iii) if less than
all of the Equity Interests of a person are acquired, such person shall,
notwithstanding the definition of Subsidiary Loan Party, become a Subsidiary
Loan Party and (iv) if such person is 
a Foreign Subsidiary of the Borrower, the acquisition thereof and any
Investments therein shall be permitted by Section 6.04(b).


 


“Permitted
Debt Securities” shall mean unsecured Indebtedness of the Borrower, (i) that
are expressly subordinated to the prior payment in full of the Obligations
pursuant to provisions substantially similar to those set forth in Exhibit G
or otherwise on terms reasonably satisfactory to the Administrative Agent (it
being understood that customary high yield subordination terms prevailing at
the time of determination shall be deemed to be so satisfactory), (ii) the
terms of which do not provide for any scheduled repayment, mandatory redemption
(other than pursuant to customary provisions relating to redemption or
repurchase upon change of control or sale of assets) or sinking fund obligation
prior to the date that is 91 days after the Term Facility Maturity Date, (iii) in
the case of such Indebtedness in excess of $35 million, the covenants, events
of default, and remedy provisions of which, taken as a whole, are not more
restrictive to, or the mandatory repurchase or redemption provisions thereof
are not more onerous or expansive in scope, taken as a whole, on, the Borrower
and its Restricted Subsidiaries than the terms of the Second Lien Loan
Documents, as reasonably determined by the Administrative Agent and (iv) in
the case of such Indebtedness in excess of $35 million, in respect of which no
Subsidiary of the Borrower that is not an obligor under the Loan Documents is
an obligor.


 


“Permitted
Investments” shall mean:


 


(a)   direct obligations of the
United States of America or any member of the European Union or any agency
thereof or obligations guaranteed by the United States of America or any member
of the European Union or any agency thereof, in each case with maturities not
exceeding two years;


 


(b)   time deposit accounts,
certificates of deposit and money market deposits maturing within 180 days of
the date of acquisition thereof issued by a bank or trust company that is
organized under the laws of the United States of America, any state thereof or
any foreign country recognized by the United States of America having capital,
surplus and undivided profits in excess of $250.0 million and whose long-term
debt, or whose parent holding company’s long-term debt, is rated A (or such
similar equivalent rating or higher by at least one nationally recognized
statistical rating organization (as defined in Rule 436 under the
Securities Act);


 


24














 


(c)   repurchase obligations with a term of not more than 180 days for
underlying securities of the types described in clause (a) above
entered into with a bank meeting the qualifications described in
clause (b) above;


 


(d)   commercial paper, maturing not more than one year after the date
of acquisition, issued by a corporation organized and in existence under the
laws of the United States of America or any foreign country recognized by the
United States of America with a rating at the time as of which any investment
therein is made of P-2 (or higher) according to Moody’s, or A-1 (or higher)
according to S&P;


 


(e)   securities with maturities of two years or less from the date of
acquisition issued or fully guaranteed by any State, commonwealth or territory
of the United States of America, or by any political subdivision or taxing
authority thereof, and rated at least A by S&P or A by Moody’s;


 


(f)    shares of mutual funds whose investment guidelines restrict 95%
of such funds’ investments to those satisfying the provisions of clauses
(a) through (e) above;


 


(g)   money market funds that (i) comply with the criteria set
forth in Rule 2a-7 under the Investment Company Act of 1940, (ii) are
rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of
at least $5.0 billion; and


 


(h)   other short-term investments utilized by Foreign Subsidiaries of
the Borrower in accordance with normal investment practices for cash management
in investments of a type analogous to the foregoing.


 


“Permitted Investors” shall mean (x) the
Sponsors, (y) the Existing Owners and any of their Permitted Transferees
and (z) the members of the Management Group so long as the Sponsors shall
own, directly or indirectly, Equity Interests in Holdings representing a
majority of the Equity Interests in Holdings owned directly or indirectly by
the persons described in clauses (x), (y) and (z).


 


“Permitted Refinancing Indebtedness” shall
mean any Indebtedness issued in exchange for, or the net proceeds of which are
used to extend, refinance, renew, replace, defease or refund (collectively, to
“Refinance”), the Indebtedness being Refinanced (or previous
refinancings thereof constituting Permitted Refinancing Indebtedness); provided
that (a) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount (or
accreted value, if applicable) of the Indebtedness so Refinanced (plus unpaid
accrued interest and premium thereon, any committed or undrawn amounts and
underwriting discounts, fees, commissions and expenses, associated with such
Permitted Refinancing Indebtedness), except as otherwise permitted under
Section 6.01, (b) the final maturity date of such Permitted
Refinancing Indebtedness is no earlier than the earlier of (i) the final
maturity date of the Indebtedness being refinanced and (ii) the date that
is 91 days after the Term Facility Maturity Date, (c) if the Indebtedness
being Refinanced is by its terms subordinated in right of payment to the
Obligations under this Agreement, such Permitted Refinancing Indebtedness shall
be subordinated in right of payment to such Obligations on terms at least as
favorable to the Lenders as those contained in the documentation governing the
Indebtedness being Refinanced, taken as a whole, (d) no Permitted
Refinancing Indebtedness shall have obligors or contingent obligors that were
not obligors or contingent obligors (or that would not have been required to
become obligors or contingent obligors) in respect of the Indebtedness being
Refinanced and (e) if the Indebtedness being Refinanced is (or would have
been required to be) secured by any collateral of a Loan Party (whether equally
and ratably with, or junior to, the Secured Parties or otherwise), such
Permitted Refinancing Indebtedness may be secured by such collateral on terms
no less favorable, taken as a whole, to the


 


25

















 


Secured
Parties than those contained in the documentation governing the Indebtedness
being Refinanced, taken as a whole; and provided further,
that with respect to a Refinancing of (x) Permitted Debt Securities such
Permitted Refinancing Indebtedness shall meet the requirements of clauses (i),
(ii), (iii) and (iv) of the definition of “Permitted Debt
Securities” and (y) Second Lien Indebtedness, any Liens securing such
Permitted Refinancing Indebtedness shall be subject to the Intercreditor
Agreement or another intercreditor agreement that is no less favorable, taken
as a whole, to the Secured Parties than the Intercreditor Agreement.


 


“Permitted Transferees” shall mean the
collective reference to (i) any Existing Owner, (ii) any direct or
indirect stockholder, member, partner or Affiliate of any Existing Owner;
(ii) transferees of Equity Interests of any Existing Owner pursuant to
buy/sell provisions under current stockholder, partnership, operating or
similar agreements to which any Existing Owner is bound, solely to the extent
any such transfer is made to a party to such agreements (or to an Affiliate of
such party); (iii) any Family Member of any person described in the
foregoing clauses (i) and (ii) (or a Family Member of any such
person’s spouse, former spouse, parent, sibling, children or other lineal
descendants, heirs or estate), a company, partnership or a trust established
for the benefit of any of the foregoing or any personal representative, estate
or executor under any will of any such Family Member or pursuant to the laws of
intestate succession.


 


“person” shall mean any natural person,
corporation, business trust, joint venture, association, company, partnership,
limited liability company, individual or family trust, or other organization
(whether or not a legal entity), or any government or any agency or political
subdivision thereof.


 


“Plan” shall mean any employee pension
benefit plan (other than a Multiemployer Plan) subject to the provisions of
Title IV of ERISA or Section 412 of the Code and in respect of
which Holdings, the Borrower, any Subsidiary or any ERISA Affiliate is (or, if
such plan were terminated, would under Section 4069 of ERISA be
deemed to be) an “employer” as defined in Section 3(5) of
ERISA.


 


“Platform” shall have the meaning assigned to
such term in Section 5.14.


 


“Pledged Collateral” shall have the meaning
assigned to such term in the Collateral Agreement.


 


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


 


“primary obligor” shall have the meaning
assigned to such term in the definition of the term “Guarantee”.


 


“Pro Forma Basis” shall mean, as to any
calculation of the Total Leverage Ratio or the First Lien Leverage Ratio for
any events as described below that occur subsequent to the commencement of any
period of four consecutive quarters (the “Reference Period”) for which
the financial effect of such events is being calculated, and giving effect to
the events for which such calculation is being made, such calculation as will
give pro forma effect to such events as if such events
occurred on the first day of the Reference Period (it being understood and
agreed that unless otherwise specified, such Reference Period shall be deemed
to be the four consecutive fiscal quarters ending on the last day of the most
recently ended fiscal quarter of the Borrower and its Subsidiaries for which
financial statements are available and such pro forma adjustments shall be
excluded to the extent already accounted for in the calculation of EBITDA for
such period):  (i) in making any
determination of EBITDA, pro forma effect shall be given


 


26

















 


to
any asset disposition of a Restricted Subsidiary, manufacturing facility or
line of business, to any asset acquisition, any discontinued operation or any
operational change and any Subsidiary Redesignation in each case that occurred
during the Reference Period (or, in the case of determinations made with
respect to any action the taking of which hereunder is subject to compliance on
a Pro Forma Basis or otherwise with the Total Leverage Ratio or the First Lien Leverage
Ratio (any such action, a “Restricted Action”) occurring during the
Reference Period or thereafter and through and including the date of such
determination) and (ii) in making any determination on a Pro Forma Basis,
(x) all Indebtedness (including Indebtedness incurred or assumed and for
which the financial effect is being calculated, whether incurred under this
Agreement or otherwise, but excluding normal fluctuations in revolving
Indebtedness incurred for working capital purposes) incurred or permanently
repaid during the Reference Period (or, in the case of determinations made with
respect to any Restricted Action, occurring during the Reference Period or
thereafter and through and including the date of such determination) shall be
deemed to have been incurred or repaid at the beginning of such period and
(y) Interest Expense of such person attributable to interest on any
Indebtedness, for which pro forma effect is being given as
provided in the preceding clause (x), bearing floating interest rates shall
be computed on a pro forma basis utilizing the rate which is
or would be in effect with respect to such Indebtedness as at the relevant date
of determination as if such rate had been actually in effect during the period
for which pro forma effect is being given.


 


Pro forma
calculations made pursuant to the definition of the term “Pro Forma Basis”
shall be determined in good faith by a Responsible Officer of the Borrower and,
for any fiscal period ending on or prior to the first anniversary of any such
asset acquisition, asset disposition, discontinued operation or operational
change or Subsidiary Redesignation, may include adjustments to reflect
operating expense reductions and other operating improvements or synergies
reasonably expected to result from such asset acquisition, asset disposition,
discontinued operation, operational change, or Subsidiary Redesignation and for
purposes of determining compliance with the Total Leverage Ratio or the First
Lien Leverage Ratio, such adjustments may reflect additional operating expense
reductions and other additional operating improvements and synergies that
(x) would be includable in pro forma financial statements prepared in
accordance with Regulation S-X and (y) such other adjustments not includable
in Regulation S-X under the Securities Act for which substantially all of the
steps necessary for the realization thereof have been taken or are reasonably
anticipated by the Borrower to be taken in the next 12 month period following
the consummation thereof and, are estimated on a good faith basis by the
Borrower; provided, however that the aggregate amount of any such
adjustments pursuant to clause (y) shall not exceed three percent (3%) of
the consolidated revenues of the Borrower in any fiscal year.  The Borrower shall deliver to the
Administrative Agent a certificate of a Responsible Officer of the Borrower
setting forth such demonstrable or additional operating expense reductions and
other operating improvements or synergies and information and calculations supporting
them in reasonable detail.


 


“Projections” shall mean the projections of
Holdings, the Borrower and the Subsidiaries included in the Information
Memorandum and any other projections and any forward-looking statements  of such entities furnished to the Lenders or
the Administrative Agent in writing by or on behalf of Holdings, the Borrower
or any of its Subsidiaries.


 


“Qualified Capital Stock” means any Equity
Interest of any person that does not by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable or
exercisable) or upon the happening of any event (a) provide for scheduled
payments of dividends in cash (other than at the option of the issuer) prior to
the date that is 91 days after the Term Facility Maturity Date, (b) become
mandatorily redeemable (other than pursuant to customary provisions relating to
redemption upon a change of control or sale of assets) pursuant to a sinking
fund obligation or otherwise prior to the date that is 91 days after the Term
Facility Maturity Date, (c) become convertible or exchangeable at the
option of the holder thereof for Indebtedness (other than Indebtedness
constituting Permitted Debt Securities that the Borrower would be permitted to
incur under Section 6.01(o) on the date


 


27

















 


of
conversion) or Equity Interests that are not Qualified Capital Stock, or
(d) contain any maintenance covenants, other covenants adverse to the
Lenders or remedies (other than voting rights and increases in dividends).


 


“Qualified IPO” shall mean an underwritten
public offering of the Equity Interests of any Parent Entity which generates
gross proceeds to such Parent Entity of at least $100.0 million.


 


“Quotation Day” shall mean, with respect to
any Eurocurrency Borrowing and any Interest Period, the day on which it is
market practice in the relevant interbank market for prime banks to give
quotations for deposits in Dollars for delivery on the first day of such
Interest Period.  If such quotations
would normally be given by prime banks on more than one day, the Quotation Day
will be the last of such days.


 


“Reference Period” shall have the meaning
assigned to such term in the definition of the term “Pro Forma Basis”.


 


“Refinance” shall have the meaning assigned
to such term in the definition of the term “Permitted Refinancing
Indebtedness”, and “Refinanced” shall have a meaning correlative thereto.


 


“Register” shall have the meaning assigned to
such term in Section 9.04(b).


 


“Regulation U” shall mean
Regulation U of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.


 


“Regulation X” shall mean
Regulation X of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.


 


“Related Fund” means, with respect to any
Lender that is an investment fund, any other investment fund that invests in
commercial loans and that is managed or advised by the same investment advisor
as such Lender or by an Affiliate of such investment advisor.


 


“Related Parties” shall mean, with respect to
any specified person, such person’s Affiliates and the respective directors,
trustees, officers, employees, agents and advisors of such person and such
person’s Affiliates.


 


“Release” shall mean any spilling, leaking,
seepage, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, disposing, depositing, emanating or migrating in,
into, onto or through the environment.


 


“Remaining Present Value” shall mean, as of
any date with respect to any lease, the present value as of such date of the
scheduled future lease payments with respect to such lease, determined with a
discount rate equal to a market rate of interest for such lease reasonably determined
at the time such lease was entered into.


 


“Reportable Event” shall mean any reportable
event as defined in Section 4043(c) of ERISA or the
regulations issued thereunder, other than those events as to which the 30-day
notice period referred to in Section 4043(c) of ERISA has been
waived, with respect to a Plan (other than a Plan maintained by an ERISA
Affiliate that is considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of Section 414 of the Code).


 


28

















 


“Required Lenders” shall mean, at any time,
Lenders having (a) Loans (other than Swingline Loans) outstanding,
(b) Revolving L/C Exposures, (c) Swingline Exposures and
(d) Available Unused Commitments, that, taken together, represent more than
50% of the sum of (w) all Loans (other than Swingline Loans) outstanding,
(x) the Revolving L/C Exposure, (y) the Swingline Exposure and
(z) all Available Unused Commitments at such time.  The Loans, Revolving L/C Exposures, Swingline
Exposures and Available Unused Commitment of any Defaulting Lender shall be
disregarded in determining Required Lenders at any time.


 


“Required Percentage” shall mean, with
respect to an Excess Cash Flow Period, 50%, provided that (a) if
the Total Leverage Ratio at the end of such Excess Cash Flow Period is greater
than 4.00:1.00 but less than or equal to 4.50:1.00, such percentage shall be
25%, and (b) if the Total Leverage Ratio at the end of such Excess Cash
Flow Period is less than or equal to 4.00:1.00, such percentage shall be 0%.


 


“Responsible Officer” of any person shall
mean any executive officer or Financial Officer of such person and any other
officer or similar official thereof responsible for the administration of the
obligations of such person in respect of this Agreement.


 


“Restricted Action” shall have the meaning
assigned to such term in the definition of “Pro Forma Basis.”


 


“Restricted Subsidiary” means each Subsidiary
of the Borrower that is not an Unrestricted Subsidiary.


 


“Revolving Credit Commitment Fee” shall have
the meaning assigned to such term in Section 2.12(a).


 


“Revolving Credit Commitment Fee Rate” shall
mean a rate equal to 0.50% per annum; provided, that on and after the
first Adjustment Date occurring after the completion of one full fiscal quarter
of the Borrower after the Closing Date, the Revolving Credit Commitment Fee
Rate will be determined pursuant to the Applicable Pricing Grid.


 


“Revolving Facility” shall mean the Revolving
Facility Commitments and the extensions of credit made hereunder by the
Revolving Facility Lenders.


 


“Revolving Facility Borrowing” shall mean a
Borrowing comprised of Revolving Facility Loans.


 


“Revolving Facility Commitment” shall mean,
with respect to each Revolving Facility Lender, the commitment of such
Revolving Facility Lender to make Revolving Facility Loans pursuant to Section 2.01,
expressed as an amount representing the maximum aggregate permitted amount of
such Revolving Facility Lender’s Revolving Facility Credit Exposure hereunder,
as such commitment may be (a) reduced from time to time pursuant to Section 2.08
and (b) reduced or increased from time to time pursuant to assignments by
or to such Lender under Section 9.04.  The initial amount of each Revolving Facility
Lender’s Revolving Facility Commitment is set forth on Schedule 2.01,
or in the Assignment and Acceptance pursuant to which such Revolving Facility
Lender shall have assumed its Revolving Facility Commitment, as
applicable.  The aggregate amount of the
Revolving Facility Commitments of all Revolving Facility Lenders is $150.0
million.


 


“Revolving Facility Credit Exposure” shall
mean, at any time, the sum of (a) the aggregate principal amount of the
Revolving Facility Loans outstanding at such time, (b) the Swingline


 


29

















 


Exposure
at such time and (c) the Revolving L/C Exposure at such time.  The Revolving Facility Credit Exposure of any
Revolving Facility Lender at any time shall be the sum of (x) the
aggregate principal amount of such Revolving Facility Lender’s Revolving
Facility Loans outstanding at such time and (y) such Revolving Facility
Lender’s (i) Revolving L/C Exposure and (ii) except for purposes of
calculating the Revolving Credit Commitment Fee, Swingline Exposure, at such
time.


 


“Revolving Facility Lender” shall mean a
Lender with a Revolving Facility Commitment or with outstanding Revolving
Facility Loans.


 


“Revolving Facility Loan” shall mean a Loan
made by a Revolving Facility Lender pursuant to Section 2.01(b).


 


“Revolving Facility Maturity Date” shall mean
November 10, 2012.


 


“Revolving Facility Percentage” shall mean,
with respect to any Revolving Facility Lender, the percentage of the total
Revolving Facility Commitments represented by such Lender’s Revolving Facility
Commitment.  If the Revolving Facility
Commitments have terminated or expired, the Revolving Facility Percentages
shall be determined based upon the Revolving Facility Commitments most recently
in effect, giving effect to any assignments pursuant to Section 9.04.


 


“Revolving L/C Exposure” shall mean at any
time the sum of (a) the aggregate undrawn amount of all Letters of Credit
outstanding at such time and (b) the aggregate principal amount of all L/C
Disbursements that have not yet been reimbursed at such time.  The Revolving L/C Exposure of any Revolving
Facility Lender at any time shall mean its Revolving Facility Percentage of the
aggregate Revolving L/C Exposure at such time.


 


“S&P” shall mean Standard &
Poor’s Ratings Group, Inc.


 


“Sale and Lease-Back Transaction” shall have
the meaning assigned to such term in Section 6.03.


 


“SEC” shall mean the Securities and Exchange
Commission or any successor thereto.


 


“Second Lien Collateral Agent” shall mean
Wilmington Trust Company or any other financial institution then acting as
Collateral Agent under the Second Lien Loan Documents.


 


“Second Lien Collateral Documents” shall mean
the “Guaranty and Collateral Agreement” and any “Mortgages” (in each case as
defined in the Second Lien Credit Agreement) and each other security agreement
or other instrument or document executed and delivered to secure Second Lien
Indebtedness and any related obligations, as amended, restated, supplemented,
otherwise modified, replaced, renewed, extended or refinanced from time to time
in accordance with requirements thereof and of this Agreement, and the
Intercreditor Agreement.


 


“Second Lien Credit Agreement” shall mean the
Credit Agreement, dated as of November 10, 2006, by and among Holdings,
the Borrower, the financial institutions from time to time party thereto as
lenders, JPMorgan Chase Bank, N.A., as administrative agent, Goldman Sachs
Credit Partners, L.P., as syndication agent, Barclays Bank, PLC, as
documentation agent, and Goldman Sachs Credit Partners, L.P. and J.P. Morgan
Securities Inc., as joint lead arrangers and joint bookrunners, as amended,
restated, supplemented, otherwise modified, replaced, renewed, extended or
refinanced from time to time in accordance with requirements thereof and of
this Agreement, and the Intercreditor Agreement.


 


30

















 


“Second Lien Financing” shall mean the
financing contemplated by the Second Lien Loan Documents.


 


“Second Lien Indebtedness” shall mean
Indebtedness pursuant to the Second Lien Loan Documents.


 


“Second Lien Loan Documents” shall mean the
“Loan Documents” as defined in the Second Lien Credit Agreement as in effect on
the date hereof, in each case as amended, restated, supplemented, otherwise
modified, replaced, renewed, extended or refinanced from time to time in
accordance with requirements thereof and of this Agreement, and the
Intercreditor Agreement.


 


“Second Lien Term Facility” shall mean the
seven-and-a-half-year second lien term loan facility in aggregate principal
amount of $430,000,000 under the Second Lien Credit Agreement.


 


“Secured Parties” shall mean the “Secured
Parties” as defined in the Collateral Agreement.


 


“Securities Act” shall mean the Securities
Act of 1933, as amended.


 


“Security Documents” shall mean the
Mortgages, the Collateral Agreement and each of the security agreements,
mortgages and other instruments and documents executed and delivered pursuant
to any of the foregoing or pursuant to Section 5.09.


 


“Specified Equity Contribution” shall have
the meaning assigned to such term Section 7.02(a).


 


“Sponsors” shall mean CCMP and its
Affiliates.


 


“Statutory Reserves” shall mean the aggregate
of the maximum reserve percentages (including any marginal, special, emergency
or supplemental reserves) expressed as a decimal established by the Board and
any other banking authority, domestic or foreign, to which the Administrative
Agent or any Lender (including any branch, Affiliate, or other fronting office
making or holding a Loan) is subject for Eurocurrency Liabilities (as defined
in Regulation D of the Board). 
Eurocurrency Loans shall be deemed to constitute Eurocurrency
Liabilities as defined in Regulation D of the Board) and to be subject to
such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D. Statutory Reserves shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.


 


“Subordinated Intercompany Debt” shall have
the meaning assigned to such term in Section 6.01(d).


 


“Subsidiary” shall mean, with respect to any
person (herein referred to as the “parent”), any corporation,
partnership, association or other business entity of which securities or other
ownership interests representing more than 50% of the ordinary voting power or
more than 50% of the partnership interests are, at the time any determination
is being made, directly or indirectly, owned, Controlled or held by the parent.


 


“Subsidiary Loan Party” shall mean each Restricted
Subsidiary that is a Wholly Owned Subsidiary of the Borrower, other than
(a) any Foreign Subsidiary of the Borrower (b) any Subsidiary of a
Foreign Subsidiary and (c) any Unrestricted Subsidiary.


 


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“Subsidiary Redesignation” shall have the
meaning provided in the definition of “Unrestricted Subsidiary” contained in
this Section 1.01.


 


“Swap Agreement” shall mean any agreement
with respect to any swap, forward, future or derivative transaction or option
or similar agreement involving, or settled by reference to, one or more rates,
currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk
or value or any similar transaction or any combination of these transactions, provided
that no phantom stock or other employee benefit plan providing for payments
only on account of services provided by current or former directors, officers,
employees, members of management or consultants of Holdings, the Borrower or
any of its Subsidiaries shall be a Swap Agreement.


 


“Swingline Borrowing” shall mean a Borrowing
comprised of Swingline Loans.


 


“Swingline Borrowing Request” shall mean a
request by the Borrower substantially in the form of Exhibit C-2.


 


“Swingline Commitment” shall mean, with
respect to each Swingline Lender, the commitment of such Swingline Lender to
make Swingline Loans pursuant to Section 2.04.  The aggregate amount of the Swingline
Commitments on the Closing Date is $15 million.


 


“Swingline Exposure” shall mean at any time
the aggregate principal amount of all outstanding Swingline Loans at such
time.  The Swingline Exposure of any
Revolving Facility Lender at any time shall mean its Revolving Facility
Percentage of the aggregate Swingline Exposure at such time.


 


“Swingline Lender” shall mean JPMorgan Chase
Bank, N.A., acting through any of its Affiliates or branches, in its capacity
as a lender of Swingline Loans.


 


“Swingline Loans” shall mean the swingline
loans made to the Borrower pursuant to Section 2.04.


 


“Syndication Agent” shall have the meaning
assigned to such term in the introductory paragraph of this Agreement.


 


“Tax Distribution” shall have the meaning
assigned to such term in Section 6.06(f).


 


“Taxes” shall mean any and all present or
future taxes, levies, imposts, duties (including stamp duties), deductions,
charges (including ad valorem charges) or withholdings imposed by any
Governmental Authority and any and all interest and penalties related thereto.


 


“Tax Sharing Agreement” means the Tax Sharing
Agreement dated as of November 10, 2006 among the Borrower and GPS CCMP
Acquisition Corp.


 


“Term Borrowing” shall mean a Borrowing
comprised of Term Loans.


 


“Term Facility” shall mean the Term Loan
Commitments and the Term Loans made hereunder.


 


“Term Loan Commitment” shall mean with
respect to each Lender, the commitment of such Lender to make Term Loans
pursuant to Section 2.01(a) in an aggregate amount not to
exceed the amount set forth opposite such Lender’s name on Schedule 2.01
under the caption “Term Commitment”


 


32

















 


or
in an Assignment and Acceptance pursuant to which such Lender becomes a party
hereto in accordance with Section 9.04, as applicable, as such
amount may be adjusted from time to time in accordance with this
Agreement.  The aggregate amount of the
Term Loan Commitments on the Closing Date is $950.0 million.


 


“Term Loans” shall mean the term loans made
by the Lenders to the Borrower on the Closing Date pursuant to Section 2.01(a).


 


“Term Facility Maturity Date” shall mean
November 10, 2013.


 


“Term Lender” shall mean a Lender with a Term
Loan Commitment and/or an outstanding Term Loan.


 


“Term Loan Installment Date” shall have the
meaning assigned to such term in Section 2.10(a).


 


“Test Period” shall mean, on any date of
determination, the period of four consecutive fiscal quarters (taken as one
accounting period) of the Borrower (a) then most recently ended for which
financial statements are available or (b) in the case of calculations
pursuant to Section 6.10, ended on the last day of the fiscal
quarter in question.


 


“Total Leverage Ratio” shall mean, on any
date, the ratio of Consolidated Total Debt to EBITDA for the relevant Test Period,
all determined on a consolidated basis.


 


“Transaction Costs” means fees and expenses
payable or otherwise borne by Holdings, any other Parent Entity, the Borrower
and the Subsidiaries in connection with the Transactions occurring on or about
the Closing Date.


 


“Transaction Documents” shall mean the Merger
Agreement, Second Lien Loan Documents and the Loan Documents.


 


“Transactions” shall mean, collectively, the
transactions to occur pursuant to the Transaction Documents, including
(a) the consummation of the Merger; (b) the execution and delivery of
the Loan Documents and the initial borrowings hereunder; (c) the Second
Lien Financing; (d) the repayment of the Existing Debt and (e) the
payment of the Transaction Costs.


 


“Type”, when used in respect of any Loan or
Borrowing, shall refer to the Rate by reference to which interest on such Loan
or on the Loans comprising such Borrowing is determined.  For purposes hereof, the term “Rate” shall
include the Adjusted LIBO Rate and the ABR.


 


“Uniform Customs” shall have the meaning
assigned to such term in Section 9.07.


 


“USA PATRIOT Act” shall mean The Uniting and
Strengthening America by Providing Adequate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56
(signed into law October 26, 2001)).


 


“U.S. Bankruptcy Code” shall mean
Title 11 of the United States Code, as amended, or any similar federal or
state law for the relief of debtors.


 


“Unrestricted Subsidiary” shall mean any
Subsidiary of the Borrower that is acquired or created after the Closing Date
designated by the Borrower as an Unrestricted Subsidiary hereunder by


 


33

















 


written
notice to the Administrative Agent; provided that the Borrower shall
only be permitted to so designate an Unrestricted Subsidiary so long as
(a) no Default or Event of Default exists or would result therefrom and
(b) the designation of such Unrestricted Subsidiary shall comply with Section 6.04,
with the amount of the fair market value of any assets owned by such
Unrestricted Subsidiary and any of its Subsidiaries at the time of the
designation thereof  being deemed an
Investment pursuant to Section 6.04.  The Borrower may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary for purposes of the credit
documentation (each, a “Subsidiary Redesignation”); provided that
(i)  no Default or Event of Default then exists or would occur as a
consequence of any such Subsidiary Redesignation (including, but not limited
to, under Sections 6.01 and 6.02), (ii) calculations are
made by the Borrower of compliance with the Total Leverage Ratio for the
relevant Reference Period, on a Pro Forma Basis as if the respective Subsidiary
Redesignation (as well as all other Subsidiary Redesignations theretofore
consummated after the first day of such Reference Period) had occurred on the
first day of such Reference Period, and such calculations shall show that such
financial covenants would have been complied with if the Subsidiary
Redesignation had occurred on the first day of such Reference Period (for this
purpose, if the first day of the respective Reference Period occurs prior to
the Closing Date, calculated as if the Total Leverage Ratio had been applicable
from the first day of the Reference Period), (iii) all representations and
warranties contained herein and in the other Loan Documents shall be true and
correct in all material respects with the same effect as though such
representations and warranties had been made on and as of the date of such Subsidiary
Redesignation (both before and after giving effect thereto), unless stated to
relate to a specific earlier date, in which case such representations and
warranties shall be true and correct in all material respects as of such
earlier date, (iv) treating such Subsidiary Redesignation as a
contribution to the Borrower of an amount equal to the fair market value of
such Unrestricted Subsidiary and (v) the Borrower shall have delivered to
the Administrative Agent an officer’s certificate executed by a Responsible
Officer of the Borrower, certifying to such officer’s knowledge, compliance
with the requirements of preceding clauses (i) through (iv),
inclusive, and containing the calculations required by the preceding
clause (ii).


 


“Voluntary Prepayments” shall mean
(a) any voluntary prepayment of Term Loans pursuant to Section 2.11(a) in
any year and (b) any voluntary prepayment of Revolving Facility Loans
pursuant to Section 2.11(a) to the extent that the Revolving
Facility Commitments are substantially concurrently reduced voluntarily in an
equal amount pursuant to Section 2.08(b), in each case, to the
extent not financed using the proceeds of the incurrence of any long-term
Indebtedness (other than Permitted Debt Securities).


 


“Wholly Owned Subsidiary” of any person shall
mean a subsidiary of such person, all of the outstanding Equity Interests of
which (other than directors’ qualifying shares or nominee or other similar
shares (including shares issued to foreign nationals) required pursuant to
applicable law) are owned by such person or another Wholly Owned Subsidiary of
such person.


 


“Withdrawal Liability” shall mean liability
to a Multiemployer Plan as a result of a complete or partial withdrawal from
such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.


 


SECTION 1.02.              Terms Generally.  The definitions set forth or referred to in Section 1.01
shall apply equally to both 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”. All references herein to Articles, Sections, Exhibits and
Schedules shall be deemed references to Articles and Sections of, and Exhibits
and Schedules to, this Agreement unless the context shall otherwise
require.  Except as otherwise expressly
provided herein, any reference in this Agreement to any Loan Document or other
agreement or instrument shall mean such Loan Document, agreement or


 


34

















 


instrument as amended, restated, amended and
restated, supplemented, otherwise modified, replaced, renewed, extended or
refinanced from time to time and any reference in this Agreement to any person
shall include a reference to such person’s successors-in-interest.  Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that, if
the Borrower notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the Closing Date in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have
been withdrawn or such provision amended in accordance herewith; provided
further that if an amendment is requested by the Borrower or the Required
Lenders, then the Borrower and the Administrative Agent shall negotiate in good
faith to enter into an amendment of such affected provisions to preserve the
original intent thereof in light of such change in GAAP or the application
thereof subject to the approval of the Required Lenders.


 


SECTION 1.03.              Effectuation of Transactions.  Each of the representations and warranties of
Holdings and the Borrower contained in this Agreement (and all corresponding
definitions) are made after giving effect to the Transactions, unless the
context otherwise requires.


 


ARTICLE
II


 


The
Credits


 


SECTION 2.01.              Commitments.  Subject to the terms and conditions set forth
herein:


 


(a)   each Term Lender agrees to and shall make
Term Loans to the Borrower on the Closing Date in a principal amount not to
exceed its Term Loan Commitment; and


 


(b)   each Revolving Facility Lender agrees to make
Revolving Facility Loans to the Borrower from time to time during the
Availability Period in an aggregate principal amount that will not result in
(i) such Lender’s Revolving Facility Credit Exposure exceeding such
Lender’s Revolving Facility Commitment or (ii) the Revolving Facility
Credit Exposure exceeding the total Revolving Facility Commitments; provided
that the aggregate of the principal amount of Revolving Facility Loans made
(excluding the face amount of Letters of Credit issued) on the Closing Date
shall not exceed $25.0 million. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Revolving Facility Loans.


 


SECTION 2.02.              Loans and Borrowings.  (a)  Each Loan shall be made as
part of a Borrowing consisting of Loans under the same Facility and of the same
Type made by the Lenders ratably in accordance with their respective
Commitments under the applicable Facility (or, in the case of Term Loans or
Swingline Loans, in accordance with their respective Term Loan Commitments or
Swingline Commitments, as applicable); provided, however, that
Revolving Facility Loans shall be made by the Revolving Facility Lenders
ratably in accordance with their respective Revolving Facility Percentages on the
date such Loans are made hereunder.  The
failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
Commitments of the Lenders are several and no Lender shall be responsible for
any other Lender’s failure to make Loans as required.


 


35














 


(b)   Subject to Section 2.14,
each Borrowing (other than a Swingline Borrowing) shall be comprised entirely
of ABR Loans or Eurocurrency Loans as the Borrower may request in accordance
herewith.  Each Swingline Borrowing shall
be an ABR Borrowing.  Each Lender at its
option may make any ABR Loan or Eurocurrency Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided
that any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of this Agreement and
such Lender shall not be entitled to any amounts payable under Section 2.15
or 2.17 solely in respect of increased costs resulting from such
exercise and existing at the time of such exercise.


 


(c)   At the
commencement of each Interest Period for any Eurocurrency Revolving Facility
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of the Borrowing Multiple and not less than the Borrowing Minimum.  At the time that each ABR Revolving Facility
Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of the Borrowing Multiple and not less than the Borrowing
Minimum; provided that an ABR Revolving Facility Borrowing may be in an
aggregate amount that is equal to the entire unused balance of the Revolving
Facility Commitments or that is required to finance the reimbursement of an L/C
Disbursement as contemplated by Section 2.05(e).  Each Swingline Borrowing shall be in an
amount that is an integral multiple of the Borrowing Multiple and not less than
the Borrowing Minimum.  Borrowings of
more than one Type and under more than one Facility may be outstanding at the
same time; provided that there shall not at any time be more than a total
of fifteen (15) Eurocurrency Borrowings outstanding.


 


(d)  
Notwithstanding any other provision of this Agreement, the Borrower shall not
be entitled to request, or to elect to convert or continue, any Borrowing if
the Interest Period requested with respect thereto would end after the
Revolving Facility Maturity Date or the Term Facility Maturity Date, as
applicable.


 


SECTION 2.03.              Requests
for Borrowings.  To request a
Revolving Facility Borrowing and/or a Term Borrowing, the Borrower shall notify
the Administrative Agent of such request by telephone (a) in the case of a
Eurocurrency Borrowing, not later than 1:00 p.m., Local Time, three
Business Days before the date of the proposed Borrowing or (b) in the case
of an ABR Borrowing, not later than 1:00 p.m., Local Time. one Business
Day before the date of the proposed Borrowing. 
Each such telephonic Borrowing Request shall be irrevocable and shall be
confirmed promptly by hand delivery or fax to the Administrative Agent of a
written Borrowing Request in a form approved by the Administrative Agent and
signed by the Borrower.  Each such
telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:


 


(i)       whether such Borrowing is to be a Borrowing of Revolving Loans
or Term Loans;


 


(ii)      the aggregate amount of the requested Borrowing;


 


(iii)     the date of such Borrowing, which shall be a Business Day;


 


(iv)     whether such Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing;


 


(v)      in the case of a Eurocurrency Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by the
definition of the term “Interest Period”; and


 


(vi)     the location and number of the Borrower’s account to which funds
are to be disbursed.


 


36

















 


If no election as to the
Type of Revolving Facility Borrowing is specified, then the requested Revolving
Facility Borrowing shall be an ABR Borrowing. 
If no Interest Period is specified with respect to any requested
Eurocurrency Borrowing, then the Borrower shall be deemed to have selected a
Eurocurrency Borrowing with an Interest Period of one month’s duration.  Promptly following receipt of a Borrowing
Request in accordance with this Section, the Administrative Agent shall advise
each Lender of the details thereof and of the amount of such Lender’s Loan to
be made as part of the requested Borrowing.


 


SECTION 2.04.              Swingline
Loans.  (a)  Subject to the
terms and conditions set forth herein, the Swingline Lender agrees to make
Swingline Loans to the Borrower from time to time during the Availability
Period, in an aggregate principal amount at any time outstanding that will not
result in (i) the aggregate principal amount of outstanding Swingline
Loans exceeding the Swingline Commitment or (ii) the Revolving Facility
Credit Exposure exceeding the total Revolving Facility Commitments; provided
that the Swingline Lender shall not be required to make a Swingline Loan to
refinance an outstanding Swingline Borrowing. 
Within the foregoing limits and subject to the terms and conditions set
forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.


 


(b)   To request a
Swingline Borrowing, the Borrower shall notify the Administrative Agent and the
Swingline Lender of such request by telephone (confirmed by a Swingline
Borrowing Request by fax), not later than 1:00 p.m., Local Time, on the
day of a proposed Swingline Borrowing. 
Each such notice and Swingline Borrowing Request shall be irrevocable and
shall specify (i) the requested date (which shall be a Business Day) and (ii) the
amount of the requested Swingline Borrowing. 
The Swingline Lender shall consult with the Administrative Agent as to
whether the making of the Swingline Loan is in accordance with the terms of
this Agreement prior to the Swingline Lender funding such Swingline Loan.  The Swingline Lender shall make each
Swingline Loan in accordance with Section 2.02(a) on the
proposed date thereof by wire transfer of immediately available funds by 4:00 p.m.,
Local Time, to the account of the Borrower (or, in the case of a Swingline
Borrowing made to finance the reimbursement of an L/C Disbursement as provided
in Section 2.05(e), by remittance to the applicable Issuing Bank).


 


(c)   The Swingline
Lender may, by written notice given to the Administrative Agent not later than
10:00 a.m., Local Time, on any Business Day require the Revolving Facility
Lenders to acquire participations on such Business Day in all or a portion of
the outstanding Swingline Loans made by it. 
Such notice shall specify the aggregate amount of such Swingline Loans
in which the Revolving Facility Lenders will participate.  Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each such Lender, specifying
in such notice such Lender’s Revolving Facility Percentage of such Swingline
Loan or Loans.  Each Revolving Facility
Lender hereby absolutely and unconditionally agrees, upon receipt of notice as
provided above, to pay to the Administrative Agent, for the account of the
Swingline Lender, such Revolving Facility Lender’s Revolving Facility
Percentage of such Swingline Loan or Loans. 
Each Revolving Facility Lender acknowledges and agrees that its
respective obligation to acquire participations in Swingline Loans pursuant to
this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or Event of Default or reduction or termination of the Commitments, and that
each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever.  Each Revolving
Facility Lender shall comply with its obligation under this paragraph by wire
transfer of immediately available funds, in the same manner as provided in Section 2.06
with respect to Loans made by such Revolving Facility Lender (and Section 2.06
shall apply, mutatis mutandis, to the payment obligations of
the Lenders), and the Administrative Agent shall promptly pay to the Swingline
Lender the amounts so received by it from the Revolving Facility Lenders.  The Administrative Agent shall notify the
Borrower of any participations in any Swingline Loan acquired pursuant to this
paragraph (c), and thereafter payments in respect of such Swingline Loan
shall be made to the Administrative Agent and not 


 


37

















 


to the Swingline
Lender.  Any amounts received by the
Swingline Lender from the Borrower (or other person on behalf of the Borrower)
in respect of a Swingline Loan after receipt by the Swingline Lender of the
proceeds of a sale of participations therein shall be promptly remitted to the
Administrative Agent; any such amounts received by the Administrative Agent
shall be promptly remitted by the Administrative Agent to the Revolving
Facility Lenders that shall have made their payments pursuant to this paragraph
and to the Swingline Lender, as their interests may appear; provided
that any such payment so remitted shall be repaid to the Swingline Lender or to
the Administrative Agent, as applicable, if and to the extent such payment is
required to be refunded to the Borrower (or such other person) for any
reason.  The purchase of participations
in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower
of any default in the payment thereof.


 


SECTION 2.05.              Letters
of Credit.  (a)  General.  Subject to the terms and conditions set forth
herein, the Borrower may request the issuance of Letters of Credit for its own
account, or for the account of any Loan Party, in a form reasonably acceptable
to the applicable Issuing Bank, at any time and from time to time during the
Availability Period and prior to the date that is thirty days prior to the
Revolving Facility Maturity Date.  In the
event of any inconsistency between the terms and conditions of this Agreement
and the terms and conditions of any form of letter of credit application or
other agreement submitted by the Borrower to, or entered into by the Borrower
with, an Issuing Bank relating to any Letter of Credit, the terms and
conditions of this Agreement shall control.


 


(b)   Notice of
Issuance, Amendment, Renewal, Extension: Certain Conditions.  To request the issuance of a Letter of Credit
(or the amendment, renewal (other than an automatic renewal in accordance with
paragraph (c) of this Section) or extension of an outstanding Letter
of Credit), the Borrower shall either (i) provide telephonic notice
promptly followed by written notice or (ii) hand deliver or telecopy (or
transmit by electronic communication, if arrangements for doing so have been
approved by the applicable Issuing Bank) to the applicable Issuing Bank and the
Administrative Agent (three Business Days in advance of the requested date of
issuance, amendment, renewal or extension) a notice requesting the issuance of
a Letter of Credit, or identifying the Letter of Credit to be amended, renewed
or extended, and specifying the date of issuance, amendment, renewal or
extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this
Section), the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to issue,
amend, renew or extend such Letter of Credit. 
If requested by the applicable Issuing Bank, the Borrower also shall
submit a letter of credit application on such Issuing Bank’s standard form in
connection with any request for a Letter of Credit; provided that to the
extent such standard form is inconsistent with the Loan Documents, the
provisions of the Loan Documents shall control. 
Upon satisfaction or waiver (in
accordance with Section 9.08) of the conditions set forth in Section 4.01
(and in the case of any Letters of Credit to be issued on the Closing Date, Section 4.02),
the Issuing Bank shall issue or extend the requested Letter of Credit in
accordance with the Issuing Lender’s standard operating procedures.  A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit, the Borrower shall be deemed to represent
and warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the Revolving L/C Exposure shall not exceed
$15.0 million and (ii) the Revolving Facility Credit Exposure shall
not exceed the total Revolving Facility Commitments.


 


(c)   Expiration
Date.  Each Letter of Credit shall
expire at or prior to the close of business on the earlier of (i) the date
twelve months after the date of the issuance of such Letter of Credit (or, in
the case of any renewal or extension thereof, twelve months after such renewal
or extension) and (ii) the date that is five Business Days prior to the
Revolving Facility Maturity Date; provided that any Letter of Credit
with a one-year tenor may provide for the automatic renewal thereof for
additional 


 


38

















 


twelve-month periods (which,
in no event, shall extend beyond the date referred to in clause (ii) of
this paragraph (c) unless otherwise agreed by the Issuing Bank and
the Administrative Agent).


 


(d)   Participations.  By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the applicable Issuing Bank or the Revolving
Facility Lenders, such Issuing Bank hereby grants to each Revolving Facility
Lender, and each Revolving Facility Lender hereby acquires from such Issuing Bank,
a participation in such Letter of Credit equal to such Revolving Facility
Lender’s Revolving Facility Percentage of the aggregate amount available to be
drawn under such Letter of Credit.  In
consideration and in furtherance of the foregoing, each Revolving Facility
Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the applicable Issuing Bank, such
Revolving Facility Lender’s Revolving Facility Percentage of each L/C
Disbursement made by such Issuing Bank and not reimbursed by the Borrower on
the date due as provided in paragraph (e) of this Section, or of any
reimbursement payment required to be refunded to the Borrower for any
reason.  Each Revolving Facility Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the occurrence and
continuance of a Default or Event of Default or reduction or termination of the
Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever.


 


(e)   Reimbursement.  If the applicable Issuing Bank shall make any
L/C Disbursement in respect of a Letter of Credit, the Borrower shall reimburse
such L/C Disbursement by paying to the Administrative Agent an amount equal to
such L/C Disbursement not later than 4:00 p.m., Local Time, on (i) the
Business Day that the Borrower receives notice under paragraph (g) of this
Section of such L/C Disbursement, if such notice is received on such day
prior to 1:00 p.m., Local Time, or (ii) if clause (i) does not
apply, the Business Day immediately following the date the Borrower receives
such notice, provided that the Borrower may, subject to the conditions
to borrowing set forth herein, request in accordance with Section 2.03
or 2.04 that such payment be financed with an ABR Revolving Facility Borrowing
or a Swingline Borrowing, as applicable, in an equivalent amount and, to the
extent so financed, the Borrower’s obligation to make such payment shall be
discharged and replaced by the resulting ABR Revolving Facility Borrowing or
Swingline Borrowing.  If the Borrower
fails to reimburse any L/C Disbursement when due, then the Administrative Agent
shall promptly notify the applicable Issuing Bank and each other Revolving
Facility Lender of the applicable L/C Disbursement, the payment then due from
the Borrower in respect thereof and, in the case of a Revolving Facility
Lender, such Lender’s Revolving Facility Percentage thereof.  Promptly following receipt of such notice,
each Revolving Facility Lender shall pay to the Administrative Agent its
Revolving Facility Percentage of the payment then due from the Borrower in
respect of such L/C Disbursement in the same manner as provided in Section 2.06
with respect to Loans made by such Revolving Facility Lender (and Section 2.06
shall apply, mutatis mutandis, to the payment obligations of
the Revolving Facility Lenders), and the Administrative Agent shall promptly
pay to the applicable Issuing Bank the amounts so received by it from the
Revolving Facility Lenders.  Promptly
following receipt by the Administrative Agent of any payment from the Borrower
pursuant to this paragraph, the Administrative Agent shall distribute such
payment to the applicable Issuing Bank or, to the extent that Revolving
Facility Lenders have made payments pursuant to this paragraph to reimburse
such Issuing Bank, then to such Revolving Facility Lenders and such Issuing
Bank as their interests may appear.  Any
payment made by a Revolving Facility Lender pursuant to this paragraph to
reimburse an Issuing Bank for any L/C Disbursement (other than the funding of
an ABR Revolving Loan or a Swingline Borrowing as contemplated above) shall not
constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such L/C Disbursement in accordance with Section 2.05(e).


 


39

















 


(f)   Obligations
Absolute.  The obligation of the
Borrower to reimburse L/C Disbursements as provided in paragraph (e) of
this Section shall be absolute, unconditional and irrevocable, and shall
be performed strictly in accordance with the terms of this Agreement under any
and all circumstances whatsoever and irrespective of (i) any lack of
validity or enforceability of any Letter of Credit or this Agreement, or any
term or provision therein, (ii) any draft or other document presented
under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iii) payment
by the applicable Issuing Bank under a Letter of Credit against presentation of
a draft or other document that does not comply with the terms of such Letter of
Credit or (iv) any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of this
Section, constitute a legal or equitable discharge of, or provide a right of
setoff against, the Borrower’s obligations hereunder.  Neither the Administrative Agent, the Lenders
nor any Issuing Bank, nor any of their Related Parties, shall have any
liability or responsibility by reason of or in connection with the issuance or
transfer of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of such Issuing Bank, or any
of the circumstances referred to in clauses (i), (ii) or (iii) of the
first sentence of this Section 2.05(f); provided that the
foregoing shall not be construed to excuse the applicable Issuing Bank from
liability to the Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the
Borrower to the extent permitted by applicable law) suffered by the Borrower
caused by (i) such Issuing Bank’s failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof or (ii) such Issuing Bank’s refusal
to issue a Letter of Credit in accordance with the terms of this
Agreement.  The parties hereto expressly
agree that, in the absence of gross negligence, willful misconduct or bad faith
on the part of, or breach of any Loan Document by, the applicable Issuing Bank,
such Issuing Bank shall be deemed to have exercised care in each such
determination and each refusal to issue a Letter of Credit.  In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to documents
presented which appear on their face to be in substantial compliance with the
terms of a Letter of Credit, the applicable Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.


 


(g)   Disbursement
Procedures.  The applicable Issuing
Bank shall, promptly following its receipt thereof, examine all documents
purporting to represent a demand for payment under a Letter of Credit.  Such Issuing Bank shall promptly notify the
Administrative Agent and the Borrower by telephone (confirmed by fax) of such
demand for payment and whether such Issuing Bank has made or will make a L/C
Disbursement thereunder; provided that any failure to give or delay in
giving such notice shall not relieve the Borrower of its obligation to
reimburse such Issuing Bank or the Revolving Facility Lenders from the amount
of any such L/C Disbursement.


 


(h)   Interim
Interest.  If an Issuing Bank shall
make any L/C Disbursement, then, unless the Borrower shall reimburse such L/C
Disbursement in full on the date such L/C Disbursement is made, the unpaid
amount thereof shall bear interest, for each day from and including the date
such L/C Disbursement is made to but excluding the date that the Borrower
reimburses such L/C Disbursement, at the rate per annum then applicable to ABR
Revolving Loans; provided that, if such L/C Disbursement is not
reimbursed by the Borrower when due pursuant to paragraph (e) of this
Section, then Section 2.13(c) shall apply.  Interest accrued pursuant to this paragraph
shall be for the account of the applicable Issuing Bank, except that interest
accrued on and after the date of payment by any Revolving Facility Lender 


 


40

















 


pursuant to paragraph (e) of
this Section to reimburse such Issuing Bank shall be for the account of
such Revolving Facility Lender to the extent of such payment.


 


(i)   Replacement
of an Issuing Bank.  An Issuing Bank
may be replaced at any time by written agreement among the Borrower, the
Administrative Agent, the replaced Issuing Bank and the successor Issuing
Bank.  The Administrative Agent shall
notify the Lenders of any such replacement of an Issuing Bank.  At the time any such replacement shall become
effective, the Borrower shall pay all unpaid fees accrued for the account of
the replaced Issuing Bank pursuant to Section 2.12.  From and after the effective date of any such
replacement, (i) the successor Issuing Bank shall have all the rights and
obligations of the replaced Issuing Bank under this Agreement with respect to
Letters of Credit to be issued thereafter and (ii) references herein to
the term “Issuing Bank” shall be deemed to refer to such successor or to any
previous Issuing Bank, or to such successor and all previous Issuing Banks, as
the context shall require.  After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall
remain a party hereto and shall continue to have all the rights and obligations
of such Issuing Bank under this Agreement with respect to Letters of Credit
issued by it prior to such replacement but shall not be required to issue
additional Letters of Credit.


 


(j)   Cash
Collateralization.  If any Event of
Default shall occur and be continuing (i) in the case of an Event of
Default described in Section 7.01(h) or (i)(i), (ii), (iii) or
(iv) on the Business Day or (ii) in the case of any other Event
of Default, on the third Business Day, following the date on which the Borrower
receives notice from the Administrative Agent (or, if the maturity of the Loans
has been accelerated, the Revolving Facility Lenders with Revolving L/C
Exposure representing greater than 50% of the total Revolving L/C Exposure)
demanding the deposit of cash collateral pursuant to this paragraph, the
Borrower shall deposit in an account with or at the direction of the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
Lenders, an amount in cash equal to the Revolving L/C Exposure as of such date
plus any accrued and unpaid interest thereon; provided that upon the
occurrence of any Event of Default with respect to the Borrower described in
clause (h) or (i) of Section 7.01, the obligation to
deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other
notice of any kind.  Each such deposit
pursuant to this paragraph shall be held by the Administrative Agent as
collateral for the payment and performance of the obligations of the Borrower
under this Agreement.  The Administrative
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account.  Other
than any interest earned on the investment of such deposits, which investments
shall be made at the option and sole discretion of (i) for so long as an
Event of Default shall be continuing, the Administrative Agent and (ii) at
any other time, the Borrower, in each case, in Permitted Investments and at the
risk and expense of the Borrower, such deposits shall not bear interest.  Interest or profits, if any, on such investments
shall accumulate in such account.  Moneys
in such account shall be applied by the Administrative Agent to reimburse each
Issuing Bank for L/C Disbursements for which such Issuing Bank has not been
reimbursed and, to the extent not so applied, shall be held for the
satisfaction of the reimbursement obligations of the Borrower for the Revolving
L/C Exposure at such time or, if the maturity of the Loans has been accelerated
(but subject to the consent of the Revolving Facility Lenders with Revolving L/C
Exposure representing greater than 50% of the total Revolving L/C Exposure), be
applied to satisfy other obligations of the Borrower under this Agreement.  If the Borrower is required to provide an
amount of cash collateral hereunder as a result of the occurrence of an Event
of Default, such amount (to the extent not applied as aforesaid) shall be
returned to the Borrower within three Business Days after all Events of Default
have been cured or waived.


 


(k)   Additional
Issuing Banks.  From time to time, the
Borrower may by notice to the Administrative Agent designate additional Lenders
as an Issuing Bank each of which agrees (in its sole discretion) to act in such
capacity and is reasonably satisfactory to the Administrative Agent.  Each such additional Issuing Bank shall
execute a counterpart of this Agreement upon the approval of the 


 


41

















 


Administrative Agent (which
approval shall not be unreasonably withheld) and shall thereafter be an Issuing
Bank hereunder for all purposes.


 


(l)   Reporting.  Unless otherwise requested by the
Administrative Agent, each Issuing Bank shall (i) provide to the
Administrative Agent copies of any notice received from the Borrower pursuant
to Section 2.05(b) no later than the next Business Day after
receipt thereof and (ii) report in writing to the Administrative Agent (A) on
or prior to each Business Day on which such Issuing Bank expects to issue,
amend, renew or extend any Letter of Credit, the date of such issuance,
amendment, renewal or extension, and the aggregate face amount of the Letters
of Credit to be issued, amended, renewed or extended by it and outstanding
after giving effect to such issuance, amendment, renewal or extension (and
whether the amount thereof changed), and the Issuing Bank shall be permitted to
issue, amend, renew or extend such Letter of Credit if the Administrative Agent
shall not have advised the Issuing Bank that such issuance, amendment renewal
or extension would not be in conformity with the requirements of this
Agreement, (B) on each Business Day on which such Issuing Bank makes any
L/C Disbursement, the date of such L/C Disbursement and the amount of such L/C
Disbursement and (C) on any other Business Day, such other information as
the Administrative Agent shall reasonably request, including but not limited to
prompt verification of such information as may be requested by the
Administrative Agent.


 


SECTION 2.06.              Funding
of Borrowings.  (a)  Each
Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds by 12:00 p.m.,
Local Time, to the account of the Administrative Agent most recently designated
by it for such purpose by notice to the Lenders; provided that Swingline
Loans shall be made as provided in Section 2.04.  The Administrative Agent will make the
proceeds of such Loans available to the Borrower by promptly crediting the
amounts so received, in like funds, to an account designated by the Borrower in
the applicable Borrowing Request; provided that ABR Revolving Loans and
Swingline Borrowings made to finance the reimbursement of a L/C Disbursement
and reimbursements as provided in Section 2.05(e) shall be
remitted by the Administrative Agent to the applicable Issuing Bank.


 


(b)   Unless the
Administrative Agent shall have received notice from a Lender prior to the
proposed date of any 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 paragraph (a) of this Section 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 Agent forthwith on demand (without
duplication) such corresponding amount 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 (i) in the
case of such Lender, the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation or (ii) in the case of the Borrower, the interest
rate applicable to ABR Loans.  If such
Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender’s Loan included in such Borrowing.


 


SECTION 2.07.              Interest
Elections.  (a)  Each
Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurocurrency Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request.  Thereafter, the Borrower may elect to convert
such Borrowing to a different Type or to continue such Borrowing and, in the
case of a Eurocurrency Borrowing, may elect Interest Periods therefor, all as
provided in this Section.  The Borrower
may elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising 


 


42

















 


such
Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing.  This Section shall
not apply to Swingline Borrowings, which may not be converted or continued.


 


(b)      To make an election pursuant to this
Section, the Borrower shall notify the Administrative Agent of such election by
telephone by the time that a Borrowing Request would be required under Section 2.03
if the Borrower were requesting a Borrowing of the Type resulting from such
election to be made on the effective date of such election.  Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly (but in any event
on the same Business Day) by hand delivery or fax to the Administrative Agent
of a written Interest Election Request in the form of Exhibit D and signed
by the Borrower.


 


(c)      Each telephonic and written Interest
Election Request shall specify the following information in compliance with Section 2.02:


 


(i)       the Borrowing to which such Interest
Election Request applies and, if different options are being elected with
respect to different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);


 


(ii)      the effective date of the election made
pursuant to such Interest Election Request, which shall be a Business Day;


 


(iii)     whether the resulting Borrowing is to be an
ABR Borrowing or a Eurocurrency Borrowing; and


 


(iv)     if the resulting Borrowing is a
Eurocurrency Borrowing, the Interest Period to be applicable thereto after
giving effect to such election, which shall be a period contemplated by the definition
of the term “Interest Period”.


 


(d)      Promptly following receipt of an Interest
Election Request, the Administrative Agent shall advise each Lender to which
such Interest Election Request relates of the details thereof and of such
Lender’s portion of each resulting Borrowing.


 


(e)      If the Borrower fails to deliver a timely
Interest Election Request with respect to a Eurocurrency Borrowing prior to the
end of the Interest Period applicable thereto, then, unless such Borrowing is
repaid as provided herein, at the end of such Interest Period such Borrowing
shall be converted to an ABR Borrowing. 
Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and the Administrative Agent, at the written
request (including a request through electronic means) of the Required Lenders,
so notifies the Borrower, then, so long as an Event of Default is continuing (i) no
outstanding Borrowing may be converted to or continued as a Eurocurrency
Borrowing and (ii) unless repaid, each Eurocurrency Borrowing shall be
converted to an ABR Borrowing at the end of the Interest Period applicable
thereto.


 


SECTION 2.08.              Termination
and Reduction of Commitments.  (a)  Unless
previously terminated, the Revolving Facility Commitments shall terminate on
the Revolving Facility Maturity Date. 
The parties hereto acknowledge that the Term Loan Commitments will
terminate at the earlier to occur of (x) 5:00 p.m., Local Time, on
the Closing Date and (y) the making of any Term Loans hereunder.


 


(b)      The Borrower may at any time terminate, or
from time to time reduce, the Commitments under any Facility; provided
that (i) each reduction of the Commitments under any Facility 


 


43

















 


shall be in an amount that is
an integral multiple of the Borrowing Multiple and not less than the Borrowing
Minimum (or, if less, the remaining amount of the Revolving Facility
Commitments) and (ii) the Borrower shall not terminate or reduce the
Revolving Facility Commitments if, after giving effect to any concurrent
prepayment of the Revolving Facility Loans in accordance with Section 2.11,
the Revolving Facility Credit Exposure would exceed the total Revolving
Facility Commitments.


 


(c)   The Borrower
shall notify the Administrative Agent of any election to terminate or reduce
the Revolving Facility Commitments under paragraph (b) of this Section at
least three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof.  Promptly following receipt of any notice, the
Administrative Agent shall advise the applicable Lenders of the contents
thereof.  Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided
that a notice of termination of the Revolving Facility Commitments delivered by
the Borrower may state that such notice is conditioned upon the effectiveness
of other credit facilities, in which case such notice may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied.  Any termination or reduction of the
Commitments shall be permanent.  Each
reduction of the Commitments under a Facility shall be made ratably among the
Lenders in accordance with their respective Commitments under such Facility.


 


SECTION 2.09.              Repayment
of Loans; Evidence of Debt.  (a)  The
Borrower hereby unconditionally promises to pay (i) to the Administrative
Agent for the account of each Revolving Facility Lender the then unpaid
principal amount of each Revolving Facility Loan on the Revolving Facility
Maturity Date, (ii) to the Administrative Agent for the account of each
Lender the then unpaid principal amount of each Term Loan of such Lender as
provided in Section 2.10 and (iii) to the Swingline Lender the
then unpaid principal amount of each Swingline Loan on the Revolving Facility
Maturity Date.  Once prepaid or repaid,
Term Loans may not be reborrowed.


 


(b)   Each Lender
shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each
Loan made by such Lender, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder.


 


(c)   The
Administrative Agent (or its agent or sub-agent appointed by it) shall maintain
the Register, as set forth in Section 9.04(b)(iv), in which it
shall record (i) the amount of each Loan made hereunder, the Facility and
Type thereof and the Interest Period (if any) applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and
payable from the Borrower to each Lender hereunder and (iii) any amount
received by the Administrative Agent hereunder for the account of the Lenders
and each Lender’s share thereof.


 


(d)   The entries
made in the accounts maintained pursuant to paragraph (b) or (c) of
this Section shall be prima facie evidence of the existence and amounts of
the obligations recorded therein absent manifest error; provided that
the failure of any Lender or the Administrative Agent to maintain such accounts
or any error therein shall not in any manner affect the obligation of the
Borrower to repay the Loans in accordance with the terms of this Agreement and,
provided further that in the event of any inconsistency
between the Register and any Lender’s records, the recordations in the Register
shall govern.


 


(e)   Any Lender
may request that Loans made by it be evidenced by a promissory note (a “Note”).  In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent and the Borrower.  Thereafter, 


 


44

















 


the Loans evidenced by such
promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more
promissory notes in such form payable to the payee named therein.


 


SECTION 2.10.              Repayment
of Term Loans and Revolving Facility Loans. 
(a)  Subject to the other paragraphs of this Section, the
Borrower shall repay Term Borrowings on each date set forth below, or if any
such date is not a Business Day, on the next succeeding Business Day, in the
aggregate principal amount set forth below opposite such date (each such date
being referred to as a “Term Loan Installment Date”):


 




	
  Date

  	
   

  	
  Amount of Term

  Borrowings to be Repaid

  	
   

  
	
  March 31, 2007

  	
   

  	
  $

  	
  2,375,000

  	
   

  
	
  June 30, 2007

  	
   

  	
  $

  	
  2,375,000

  	
   

  
	
  September 30, 2007

  	
   

  	
  $

  	
  2,375,000

  	
   

  
	
  December 31, 2007

  	
   

  	
  $

  	
  2,375,000

  	
   

  
	
  March 31, 2008

  	
   

  	
  $

  	
  2,375,000

  	
   

  
	
  June 30, 2008

  	
   

  	
  $

  	
  2,375,000

  	
   

  
	
  September 30, 2008

  	
   

  	
  $

  	
  2,375,000

  	
   

  
	
  December 31, 2008

  	
   

  	
  $

  	
  2,375,000

  	
   

  
	
  March 31, 2009

  	
   

  	
  $

  	
  2,375,000

  	
   

  
	
  June 30, 2009

  	
   

  	
  $

  	
  2,375,000

  	
   

  
	
  September 30, 2009

  	
   

  	
  $

  	
  2,375,000

  	
   

  
	
  December 31, 2009

  	
   

  	
  $

  	
  2,375,000

  	
   

  
	
  March 31, 2010

  	
   

  	
  $

  	
  2,375,000

  	
   

  
	
  June 30, 2010

  	
   

  	
  $

  	
  2,375,000

  	
   

  
	
  September 30, 2010

  	
   

  	
  $

  	
  2,375,000

  	
   

  
	
  December 31, 2010

  	
   

  	
  $

  	
  2,375,000

  	
   

  
	
  March 31, 2011

  	
   

  	
  $

  	
  2,375,000

  	
   

  
	
  June 30, 2011

  	
   

  	
  $

  	
  2,375,000

  	
   

  
	
  September 30, 2011

  	
   

  	
  $

  	
  2,375,000

  	
   

  
	
  December 31, 2011

  	
   

  	
  $

  	
  2,375,000

  	
   

  
	
  March 31, 2012

  	
   

  	
  $

  	
  2,375,000

  	
   

  
	
  June 30, 2012

  	
   

  	
  $

  	
  2,375,000

  	
   

  
	
  September 30, 2012

  	
   

  	
  $

  	
  2,375,000

  	
   

  
	
  December 31, 2012

  	
   

  	
  $

  	
  2,375,000

  	
   

  
	
  March 31, 2013

  	
   

  	
  $

  	
  2,375,000

  	
   

  
	
  June 30, 2013

  	
   

  	
  $

  	
  2,375,000

  	
   

  
	
  September 30, 2013

  	
   

  	
  $

  	
  2,375,000

  	
   

  
	
  Term Facility Maturity Date

  	
   

  	
  $

  	
  885,875,000

  	
   

  






 


provided that the final
principal repayment installment of the Term Loans repaid on the Term Facility
Maturity Date shall be, in any event, in an amount equal to the aggregate
principal amount of all Term Loans outstanding on such date.


 


(b)   To the
extent not previously paid, outstanding Revolving Facility Loans shall be due
and payable on the Revolving Facility Maturity Date.


 


45














 


(c)   Prepayment
of the Borrowings from:


 


(i)   Net Proceeds
pursuant to Section 2.11(b) and Excess Cash Flow pursuant to Section 2.11(c) shall
be applied first to ABR Term Loans and then to Eurocurrency Term Loans, and to
such Term Borrowings on a pro rata basis, with the
application thereof in direct order of maturity, and


 


(ii)   any
optional prepayments of the Term Loans pursuant to Section 2.11(a) shall
be applied to the remaining installments thereof as directed by the Borrower.


 


(d)   Prior to any
optional repayment of any Borrowing under any Facility hereunder, the Borrower
shall notify the Administrative Agent by telephone (confirmed by fax) of the
Borrowings under the applicable Facility to be repaid not later than 12:00 p.m.,
Local Time, (i) in the case of an ABR Borrowing, one Business Day before
the scheduled date of such repayment and (ii) in the case of a
Eurocurrency Borrowing, three Business Days before the scheduled date of such
repayment.  Each repayment of a Borrowing
(x) in the case of the Revolving Facility, shall be applied to the
Revolving Facility Loans included in the repaid Borrowing such that each
Revolving Facility Lender receives its ratable share of such repayment (based
upon the respective Revolving Facility Credit Exposures of the Revolving
Facility Lenders at the time of such repayment) and (y) in all other
cases, shall be applied ratably to the Loans included in the repaid
Borrowing.  Notwithstanding anything to
the contrary in the immediately preceding sentence, prior to any repayment of a
Swingline Borrowing hereunder, the Borrower shall select the Borrowing or
Borrowings to be repaid and shall notify the Administrative Agent by telephone
(confirmed by fax) of such selection not later than 1:00 p.m., Local Time,
on the scheduled date of such repayment. 
Repayments of Borrowings (other than repayments of ABR Revolving
Facility Borrowings that are not made in connection with the termination or
permanent reduction of the Revolving Facility Commitments) shall be accompanied
by accrued interest on the amount repaid. 
In the event the Borrower fails to specify the Borrowings to which any
such voluntary prepayment shall be applied, such prepayment shall be applied as
follows:


 


first, to repay
outstanding ABR Swing line Loans to the full extent thereof;


 


second, to repay
outstanding ABR Revolving Facility Loans and then to outstanding Eurocurrency
Revolving Facility Loans to the full extent thereof; and


 


third, to prepay the
ABR Term Loans and then to the Eurocurrency Term Loans, in each case, on a pro
rata basis (in accordance with the respective outstanding principal amounts
thereof).


 


SECTION 2.11.              Prepayment
of Loans.  (a)  The
Borrower shall have the right at any time and from time to time to prepay any
Borrowing in whole or in part, without premium or penalty (but subject to Section 2.16),
in an aggregate principal amount that is an integral multiple of the Borrowing
Multiple and not less than the Borrowing Minimum or, if less, the amount
outstanding, subject to prior notice in accordance with Section 2.10(d).


 


(b)   The Borrower
shall apply, without duplication, all Net Proceeds within three Business Days
of receipt thereof to prepay Term Borrowings in accordance with paragraphs (c) and
(d) of Section 2.10.


 


(c)  
Not later than 125 days after the end of each Excess Cash Flow Period, the
Borrower shall prepay Term Borrowings in an amount equal to (i) an amount
equal to the Required Percentage of Excess Cash Flow for such Excess Cash Flow
Period minus (ii) the aggregate amount of Voluntary 


 


46

















 


Prepayments made during such
Excess Cash Flow Period.  Prepayments
pursuant to the immediately preceding sentence shall be applied in accordance
with paragraphs (c) and (d) of Section 2.10.


 


(d)  
If at any time the aggregate amount of the Revolving Credit Exposure exceeds
the total Revolving Facility Commitment then in effect, the Borrower will
immediately prepay Swing Line Borrowings and Revolving Facility Borrowings and
cash collateralize the Revolving L/C Exposure in an aggregate amount equal to
such excess (with no reduction of the Revolving Facility Commitment).


 


(e)  
Concurrently with any prepayment pursuant to Section 2.11(b), the
Borrower shall deliver to the Administrative Agent a certificate of a Financial
Officer demonstrating the calculation of the amount of the applicable Net
Proceeds.  In the event that the Borrower
shall subsequently determine that the actual amount received exceeded the amount
set forth in such certificate, the Borrower shall promptly make an additional
prepayment of the Loans in an amount equal to such excess, and the Borrower
shall concurrently therewith deliver to Administrative Agent a certificate of a
Financial Officer demonstrating the derivation of such excess.


 


SECTION 2.12.              Fees.  (a)  The Borrower agrees to pay to
each Revolving Facility Lender (other than any Defaulting Lender), through the
Administrative Agent, on the last day of March, June, September and December in
each year, and on the date on which the Revolving Facility Commitments of all
the Revolving Facility Lenders shall be terminated as provided herein, a
commitment fee (a “Revolving Credit Commitment Fee”) on the daily amount
of the Available Unused Commitment of such Lender during the preceding quarter
(or other period commencing with the Closing Date or ending with the date on
which the last of the Commitments of such Lender shall be terminated) at the
Revolving Credit Commitment Fee Rate. 
All Revolving Credit Commitment Fees shall be computed on the basis of
the actual number of days elapsed in a year of 360 days.  For the purpose of calculating any Revolving
Facility Lender’s Revolving Credit Commitment Fee, the outstanding Swingline
Loans during the period for which such Revolving Facility Lender’s Revolving
Credit Commitment Fee is calculated shall be deemed to be zero.  The Revolving Credit Commitment Fee due to
each Lender shall commence to accrue on the Closing Date and shall cease to
accrue on the date on which the last of the Revolving Facility Commitments of
such Revolving Facility Lender shall be terminated as provided herein.


 


(b)   The Borrower
from time to time agrees to pay (i) to each Revolving Facility Lender
(other than any Defaulting Lender), through the Administrative Agent, on the
last day of March, June, September and December of each year and on
the date on which the Revolving Facility Commitments of all the Lenders shall
be terminated as provided herein, a fee (an “L/C Participation Fee”) on
such Lender’s Revolving Facility Percentage of the daily aggregate Revolving
L/C Exposure (excluding the portion thereof attributable to unreimbursed L/C
Disbursements), during the preceding quarter (or shorter period commencing with
the Closing Date or ending with the Revolving Facility Maturity Date or the
date on which the Revolving Facility Commitments shall be terminated) at the
rate per annum equal to the Applicable Margin for Eurocurrency Revolving
Facility Borrowings effective for each day in such period and (ii) to each
Issuing Bank, for its own account, (x) on the last day of March,
June, September and December of each year and on the date on which
the Revolving Facility Commitments of all the Lenders shall be terminated as
provided herein, a fronting fee in respect of each Letter of Credit issued by
such Issuing Bank for the period from and including the date of issuance of
such Letter of Credit to and including the termination of such Letter of
Credit, computed at a rate equal to 0.125% of the daily average stated amount of
such Letter of Credit, plus (y) in connection with the issuance,
amendment or transfer of any such Letter of Credit or any L/C Disbursement
thereunder, such Issuing Bank’s customary documentary and processing charges
(collectively, “Issuing Bank Fees”). 
All L/C Participation Fees and Issuing Bank Fees that are payable on a
per annum basis shall be computed on the basis of the actual number of days
elapsed in a year of 360 days.


 


47

















 


(c)   The Borrower
agrees to pay to the Administrative Agent, for the account of the
Administrative Agent, the agency fees set forth in the Fee Letter, as amended,
restated, supplemented or otherwise modified from time to time, at the times
and in the amount specified therein (the “Administrative Agent Fees”).


 


(d)   All Fees
shall be paid on the dates due, in immediately available funds, to the
Administrative Agent for distribution, if and as appropriate, among the
Lenders, except that Issuing Bank Fees shall be paid directly to the applicable
Issuing Banks.  Once paid, none of the
Fees shall be refundable under any circumstances.


 


SECTION 2.13.              Interest.  (a)  The Loans comprising each ABR
Borrowing (including each Swingline Loan) shall bear interest at the ABR plus
the Applicable Margin.


 


(b)   The Loans
comprising each Eurocurrency Borrowing shall bear interest at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable
Margin.


 


(c)  
Notwithstanding the foregoing, if any principal of or interest on any Loan or
any Fees or other amount payable by the Borrower hereunder is not paid when
due, whether at stated maturity, upon acceleration or otherwise, such overdue
amount shall bear interest, after as well as before judgment, at a rate per annum
equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the
rate applicable to ABR Loans as provided in paragraph (a) of this
Section.


 


(d)   Accrued
interest on each Loan shall be payable in arrears (i) on each Interest
Payment Date for such Loan, (ii) in the case of Revolving Facility Loans,
upon termination of the Revolving Facility Commitments and (iii) in the
case of the Term Loans, on the Term Facility Maturity Date; provided
that (i) interest accrued pursuant to paragraph (c) of this Section shall
be payable on demand, (ii) in the event of any repayment or prepayment of
any Loan (other than a prepayment of an ABR Revolving Loan prior to the end of
the Availability Period), accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and (iii) in
the event of any conversion of any Eurocurrency Loan prior to the end of the
current Interest Period therefor, accrued interest on such Loan shall be
payable on the effective date of such conversion.


 


(e)   All interest
hereunder shall be computed on the basis of a year of 360 days, except that interest
computed by reference to the ABR at times when the ABR is based on the Prime
Rate shall be computed on the basis of a year of 365 days (or 366 days in a
leap year), and in each case shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).  The applicable ABR, Adjusted LIBO Rate or
LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.


 


SECTION 2.14.              Alternate
Rate of Interest.  If prior to the
commencement of any Interest Period for a Eurocurrency Borrowing:


 


(a)   the Administrative Agent
determines (which determination shall be conclusive absent manifest error) that
adequate and reasonable means do not exist for ascertaining the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for such Interest Period; or


 


(b)   the Administrative Agent is
advised by the Required Lenders or the Majority Lenders under the Revolving
Facility that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such
Interest Period will not adequately and fairly reflect the cost to such Lenders
of making or maintaining their Loans included in such Borrowing for such
Interest Period;


 


48

















 


then the Administrative
Agent shall give written notice thereof to the Borrower and the Lenders as
promptly as practicable thereafter and, until the Administrative Agent notifies
the Borrower and the Lenders that the circumstances giving rise to such notice
no longer exist, (i) any Interest Election Request that requests the
conversion of any Borrowing to, or continuation of any Borrowing as, a
Eurocurrency Borrowing shall be ineffective and such Borrowing shall be
converted to or continued as on the last day of the Interest Period applicable
thereto an ABR Borrowing, and (ii) if any Borrowing Request requests a
Eurocurrency Borrowing, such Borrowing shall be made as an ABR Borrowing.


 


SECTION 2.15.              Increased
Costs.  (a)  If any Change
in Law shall:


 


(i)   impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in the Adjusted LIBO
Rate) or Issuing Bank; or


 


(ii)   impose on
any Lender or Issuing Bank or the London interbank market any other condition
affecting this Agreement or Eurocurrency 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 Loan (or of maintaining its obligation to make any such Loan)
or to increase the cost to such Lender or Issuing Bank of participating in,
issuing or maintaining any Letter of Credit or to reduce the amount of any sum
received or receivable by such Lender or Issuing Bank hereunder (whether of
principal, interest or otherwise), then within thirty days of receipt of a
certificate of the type specified in paragraph (c) below the Borrower will
pay to such Lender or Issuing Bank, as applicable, such additional amount or
amounts as will compensate such Lender or Issuing Bank, as applicable, for such
additional costs incurred or reduction suffered.


 


(b)   If any
Lender or Issuing Bank determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on
such Lender’s or Issuing Bank’s capital or on the capital of such Lender’s or
Issuing Bank’s holding company, if any, as a consequence of this Agreement or
the Loans made by, or participations in Letters of Credit held by, such Lender,
or the Letters of Credit issued by such Issuing Bank, to a level below that
which such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding
company could have achieved but for such Change in Law (taking into
consideration such Lender’s or such Issuing Bank’s policies and the policies of
such Lender’s or such Issuing Bank’s holding company with respect to capital
adequacy), then from time to time within thirty days of receipt of a
certificate of the type specified in paragraph (c) below the Borrower
shall pay to such Lender or such Issuing Bank, as applicable, such additional
amount or amounts as will compensate such Lender or such Issuing Bank or such
Lender’s or such Issuing Bank’s holding company for any such reduction
suffered.


 


(c)   A
certificate of a Lender or an Issuing Bank setting forth in reasonable detail
the calculation of the amount or amounts necessary to compensate such Lender or
Issuing Bank or its holding company, as applicable, as specified in
paragraph (a) or (b) of this Section shall be delivered to
the Borrower and shall be conclusive absent manifest error.  The Borrower shall pay such Lender or Issuing
Bank, as applicable, the amount shown as due on any such certificate within 30
days after receipt thereof.


 


(d)   Promptly
after any Lender or any Issuing Bank has determined that it will make a request
for increased compensation pursuant to this Section 2.15, such Lender
or Issuing Bank shall notify the Borrower thereof.  Failure or delay on the part of any Lender or
Issuing Bank to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender’s or Issuing Bank’s 


 


49

















 


right to demand such
compensation; provided that the Borrower shall not be required to
compensate a Lender or an Issuing Bank pursuant to this Section for any
increased costs or reductions incurred more than 90 days prior to the date that
such Lender or Issuing Bank, as applicable, notifies the Borrower of the Change
in Law giving rise to such increased costs or reductions and of such Lender’s
or Issuing Bank’s intention to claim compensation therefor; provided, further,
that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 90-day period referred to above shall be extended to
include the period of retroactive effect thereof


 


(e)   This Section 2.15
shall not apply to Taxes, which shall be exclusively governed by Section 2.17.


 


SECTION 2.16.              Break
Funding Payments.  In the event of (a) the
payment of any principal of any Eurocurrency Loan other than on the last day of
an Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurocurrency Loan other than on the
last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Eurocurrency Loan on the date specified
in any notice delivered pursuant hereto or (d) the assignment of any
Eurocurrency Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.19,
then, in any such event, the Borrower shall compensate each Lender for the
loss, cost and expense attributable to such event (excluding loss of
margin).  A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive
pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error.  The
Borrower shall pay such Lender the amount shown as due on any such certificate
within 30 days after receipt thereof.


 


SECTION 2.17.              Taxes.  (a)  Any and all payments by or on
account of any obligation of any Loan Party hereunder shall be made free and
clear of and without deduction or withholding for any Indemnified Taxes or
Other Taxes; provided that if a Loan Party shall be required to deduct
any Indemnified Taxes or 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, any Lender or any Issuing Bank, as
applicable, receives an amount equal to the sum it would have received had no
such deductions been made, (ii) such Loan Party shall make such deductions
and (iii) such Loan Party shall timely pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.


 


(b)   In addition,
the Loan Parties shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.


 


(c)   Each Loan
Party shall indemnify the Administrative Agent, each Lender and each Issuing
Bank, within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Lender
or such Issuing Bank, as applicable, on or with respect to any payment by or on
account of any obligation of such Loan Party hereunder (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto.  A certificate
as to the amount of such payment or liability, prepared in good faith and
delivered to such Loan Party by a Lender or an Issuing Bank, or by the
Administrative Agent on its own behalf, on behalf of another Agent or on behalf
of a Lender or an Issuing Bank, shall be conclusive absent manifest error.


 


(d)   As soon as
practicable after any payment of Indemnified Taxes or Other Taxes by a Loan
Party to a Governmental Authority, such Loan Party shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, 


 


50

















 


a copy of the return
reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.


 


(e)   Each Foreign
Lender shall deliver to the Borrower and the Administrative Agent (in such
number of copies as shall be reasonably requested by the recipient) on the date
on which such Foreign Lender becomes a Lender under this Agreement, whichever
of the following is applicable:  (i) duly
completed copies of Internal Revenue Service Form W-8BEN (or any
subsequent versions thereof or successors thereto), claiming eligibility for
benefits of an income tax treaty to which the United States of America is a
party, (ii) duly completed copies of Internal Revenue Service Form W-8ECI
(or any subsequent versions thereof or successors thereto), (iii) in the
case of a Foreign Lender claiming the benefits of the exemption for portfolio
interest under Section 871(h) or 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 871(h)(3) or
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 any subsequent versions thereof or successors
thereto) 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. 
Each Foreign Lender shall promptly notify the Borrower and the
Administrative Agent at any time it determines that it is no longer in a position
to provide any previously delivered certificate to the Borrower (or any other
form of certification adopted by the United States of America or other taxing
authorities for such purpose) and shall deliver updated forms and/or
certifications promptly upon the inaccuracy or invalidity of any previously
delivered form or certificate.  In
addition, each Lender that is not a Foreign Lender shall deliver to the
Borrower and the Administrative Agent two copies of Internal Revenue Service Form W-9
(or any subsequent versions thereof or successors thereto) on or before the
date such Lender becomes a party and upon the expiration or inaccuracy of any
form previously delivered by such Lender. 
Notwithstanding any other provision of this paragraph, a Lender shall
not be required to deliver any form pursuant to this paragraph that such Lender
is not legally able to deliver.


 


(f)   If the
Administrative Agent or a Lender receives a refund of any Indemnified Taxes or
Other Taxes as to which it has been indemnified by a Loan Party or with respect
to which such Loan Party has paid additional amounts pursuant to this Section 2.17,
it shall pay over such refund to such Loan Party (but only to the extent of
indemnity payments made, or additional amounts paid, by such Loan Party under
this Section 2.17 with respect to the Indemnified Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent or such Lender (including any Taxes imposed with respect
to such refund) as is determined by the Administrative Agent or Lender and in
its sole discretion, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund); provided
that such Loan Party, upon the request of the Administrative Agent or such
Lender, agrees to repay as soon as reasonably practicable the amount paid over
to such Loan Party (plus any penalties, interest or other charges imposed by
the relevant Governmental Authority) to the Administrative Agent or such Lender
in the event the Administrative Agent or such Lender is required to repay such
refund to such Governmental Authority. 
This Section 2.17(f) shall not be construed to require
the Administrative Agent or any Lender to make available its Tax returns (or
any other information relating to its Taxes which it deems confidential) to the
Loan Parties or any other person.


 


SECTION 2.18.              Payments
Generally; Pro Rata Treatment; Sharing of Set-offs.  (a)  Unless otherwise specified,
the Borrower shall make each payment required to be made by it hereunder (whether
of principal, interest, fees or reimbursement of L/C Disbursements, or of
amounts payable under Section 2.15, 2.16, or 2.17, or
otherwise) prior to 2:00 p.m., Local Time, on the date when due, in
immediately available funds, without condition or deduction for any defense,
recoupment, set-off or 


 


51

















 


counterclaim.  Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon.  All such payments
shall be made to the Administrative Agent to the applicable account designated
to the Borrower by the Administrative Agent, except payments to be made
directly to the applicable Issuing Bank or the Swingline Lender as expressly
provided herein.  The Administrative
Agent shall distribute any such payments received by it for the account of any
other person to the appropriate recipient promptly following receipt thereof.  If any payment or performance obligation
hereunder shall be due or required on a day that is not a Business Day, the
date for payment or performance shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension.  All payments hereunder shall be made in
Dollars.  Any payment required to be made
by the Administrative Agent hereunder shall be deemed to have been made by the
time required if the Administrative Agent shall, at or before such time, have
taken the necessary steps to make such payment in accordance with the
regulations or operating procedures of the clearing or settlement system used
by the Administrative Agent to make such payment.


 


(b)   If at any
time insufficient funds are received by and available to the Administrative
Agent from the Borrower to pay fully all amounts of principal, unreimbursed L/C
Disbursements, interest and fees then due from the Borrower hereunder, such
funds (except as otherwise provided in the Collateral Agreement with respect to
the application of amounts realized from the Collateral) shall be applied (i) first,
towards payment of interest and fees then due from the Borrower hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, towards
payment of principal and unreimbursed L/C Disbursements then due from the
Borrower hereunder, ratably among the parties entitled thereto in accordance
with the amounts of principal and unreimbursed L/C Disbursements then due to
such parties.


 


(c)   If any
Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Term
Loans, Revolving Facility Loans or participations in L/C Disbursements or
Swingline Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Term Loans, Revolving Facility Loans
and participations in L/C Disbursements and Swingline Loans and accrued
interest thereon than the proportion received by any other Lender, then the
Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Term Loans, Revolving Facility Loans and
participations in L/C Disbursements and Swingline Loans of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by
the Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Term Loans, Revolving Facility Loans and
participations in L/C Disbursements and Swingline Loans; provided that (i) if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and
the purchase price restored to the extent of such recovery, without interest,
and (ii) the provisions of this paragraph (c) shall not be
construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by
a Lender as consideration for the assignment of or sale of a participation in
any of its Loans or participations in L/C Disbursements to any assignee or
participant, other than to the Borrower or any Subsidiary thereof (as to which
the provisions of this paragraph (c) 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 set-off 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.


 


(d)   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 


 


52

















 


applicable Issuing Bank
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 applicable Issuing Bank, as applicable, the amount due.  In such event, if the Borrower has not in
fact made such payment, then each of the Lenders or the applicable Issuing
Bank, as applicable, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or Issuing Bank
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 greater of the Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation.


 


(e)   If any
Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c),
2.05(d) or (e), 2.06(b) or 2.18(d), then
the Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender’s obligations under
such Sections until all such unsatisfied obligations are fully paid.


 


SECTION 2.19.              Mitigation
Obligations; Replacement of Lenders. 
(a)  If any Lender requests compensation under Section 2.15,
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 2.17,
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 reasonable judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17,
as applicable, in the future and (ii) would not subject such Lender to any
material unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender in any material respect.  The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment.


 


(b)   If any
Lender requests compensation under Section 2.15, 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 2.17, or is a
Defaulting Lender, or becomes an Affected Lender, then the Borrower may, at its
sole expense and effort, upon notice to such Lender and the Administrative
Agent, (i) terminate the Commitments of such Lender and repay all
obligations of the Borrower owing to such Lender relating to the Loans and
participations held by such Lender as of such termination date or (ii) require
such Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in Section 9.04), all its
interests, rights and obligations under this Agreement to an assignee that
shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent,
which consent shall not unreasonably be withheld, (ii) such Lender shall
have received payment of an amount equal to the outstanding principal of its
Loans and participations in L/C Disbursements and Swingline Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
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) and (iii) in
the case of any such assignment resulting from a claim for compensation under Section 2.15
or payments required to be made pursuant to Section 2.17, such
assignment will result in a reduction in such compensation or payments.  Nothing in this Section 2.19
shall be deemed to prejudice any rights that the Borrower may have against any
Lender that is a Defaulting Lender.


 


(c)   If any
Lender (such Lender, a “Non-Consenting Lender”) has failed to consent to
a proposed amendment, waiver, discharge or termination which pursuant to the
terms of Section 9.08  


 


53

















 


requires the consent of all
of the Lenders affected and with respect to which the Required Lenders shall
have granted their consent, then the Borrower shall have the right (unless such
Non-Consenting Lender grants such consent) to replace such Non-Consenting
Lender by (i) terminating the Commitments of such Lender and repaying all
obligations of the Borrower owing to such Lender relating to the Loans and
participations held by such Lender as of such termination date or (ii) requiring
such Non-Consenting Lender to assign all or the affected portion of its Loans,
and its Commitments hereunder to one or more assignees reasonably acceptable to
the Administrative Agent, provided that: (a) all Obligations of the
Borrower owing to such Non-Consenting Lender being replaced shall be paid in
full to such Non-Consenting Lender concurrently with such assignment, (b) the
replacement Lender shall purchase the foregoing by paying to such
Non-Consenting Lender a price equal to the principal amount thereof plus
accrued and unpaid interest thereon, (c) in connection with any such
assignment the Borrower, Administrative Agent, such Non-Consenting Lender shall
otherwise comply with Section 9.04 and (d) the replacement
Lender shall grant its consent with respect to the applicable proposed
amendment, waiver, discharge or termination. 
Each Lender hereby grants to the Administrative Agent an irrevocable
power of attorney (which power is coupled with an interest) to execute and
deliver, on behalf of such Lender as assignor, any Assignment and Acceptance
necessary to effectuate any assignment of such Lender’s interests hereunder in the
circumstances contemplated by this Section 2.19(c).


 


SECTION 2.20.              Illegality  If any Lender reasonably determines that any
Change in Law has made it unlawful, or that any Governmental Authority has
asserted after the Closing Date that it is unlawful, for any Lender or its
applicable Lending Office to make or maintain any Eurocurrency Loans, then, on
notice thereof by such Lender to the Borrower through the Administrative Agent (at which time such Lender shall be deemed an “Affected
Lender”), any obligations of such Affected Lender to make or
continue Eurocurrency Loans or to convert ABR Borrowings to Eurocurrency
Borrowings shall be suspended until such Affected 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 Affected
Lender (with a copy to the Administrative Agent), either convert all
Eurocurrency Borrowings of such Affected Lender to ABR Borrowings, either on
the last day of the Interest Period therefor, if such Affected Lender may
lawfully continue to maintain such Eurocurrency Borrowings to such day, or
immediately, if such Affected Lender may not lawfully continue to maintain such
Loans.  Upon any such prepayment or
conversion, the Borrower shall also pay accrued interest on the amount so
prepaid or converted.


 


SECTION 2.21.              Incremental
Extensions of Credit.  Subject to the
terms and conditions set forth herein, the Borrower may at any time and from
time to time, request to add additional term loans and/or increase the
Revolving Facility (the “Incremental Extensions of Credit”) in minimum
principal amounts of $20.0 million, provided that (a) immediately
prior to and after giving effect to any Incremental Facility Amendment (and the
making of any Incremental Extensions of Credit pursuant thereto), no Default or
Event of Default has occurred or is continuing or shall result therefrom and
the Borrower shall be in compliance, on a Pro Forma Basis (including giving pro forma
effect to any Incremental Facility Amendment (and the making of any Incremental
Extensions of Credit pursuant thereto)), with the Total Leverage Ratio required
by Section 6.10 and (b) the aggregate principal amount (or
committed amount, if applicable) of all Incremental Extensions of Credit
pursuant to this Section 2.21 shall not exceed (i) $100.0
million minus (ii) the aggregate principal amount (or committed
amount, if applicable) of “Incremental Extensions of Credit” (as defined in the
Second Lien Credit Agreement). The Incremental Extensions of Credit shall rank pari passu
in right of payment and right of security in respect of the Collateral with the
Term Loans or the Revolving Loans, as applicable.  In the case of additional term loans, other
than amortization, pricing or maturity date, such additional term loans shall
have the same terms as the Term Loans (the “Existing Term Loans”)
existing immediately prior to the effectiveness of an Incremental Facility
Amendment (except as otherwise agreed by the Administrative Agent and
Additional Lenders agreeing to provide a commitment in respect of such
Incremental 


 


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Extension
of Credit provided that any such agreement shall affect solely the terms
of such Incremental Extension of Credit and not any other Loan or Borrowings or
Commitments (or any other Lender) unless this Agreement has been amended in
accordance with Section 9.08 without reference to this Section 2.21);
provided that, without the prior written consent of the Required
Lenders, (i) any increase in the Revolving Facility shall be on the terms
described in this Section 2.21 and pursuant to the terms hereof
otherwise applicable to the Revolving Facility, (ii) the Incremental
Extensions of Credit shall not have a final maturity date earlier than the Term
Loan Maturity Date or the Revolving Facility Maturity Date, as applicable, and (iii) in
the case of additional term loans, Incremental Extensions of Credit shall not
have a weighted average life that is shorter than that of the then-remaining
weighted average life of the Term Loans. 
Any additional bank, financial institution, existing Lender or other
person that elects to extend commitments to provide Incremental Extensions of
Credit shall be reasonably satisfactory to the Borrower and the Administrative
Agent (any such bank, financial institution or other person being called an “Additional
Lender”) and shall become a Lender under this Agreement, pursuant to an
amendment (an “Incremental Facility Amendment”) to this Agreement,
giving effect to the modifications permitted by this Section 2.21,
and, as appropriate, the other Loan Documents, executed by the Borrower, each
Additional Lender, if any, and the Administrative Agent.  Commitments in respect of Incremental
Extensions of Credit shall become Commitments under this Agreement after giving
effect to such Incremental Facility Amendment. 
An Incremental Facility Amendment providing for term loans may, without
the consent of any other Lenders, effect such amendments to this Agreement and
the other Loan Documents as may be reasonably necessary or appropriate, in the
opinion of the Administrative Agent, to effect the provisions of this Section,
and provided, however, the interest rates and fees applicable to
any Incremental Extension of Credit shall be determined by the Borrower and the
Additional Lenders (as defined below). 
The effectiveness of any Incremental Facility Amendment shall be subject
to the satisfaction on the date thereof (each, an “Incremental Facility
Closing Date”) of each of the conditions set forth in Section 4.01
(it being understood that all references to “the date of such Borrowing” in
such Section 4.01 shall be deemed to refer to the Incremental
Facility Closing Date), and, except as otherwise specified in the applicable
Incremental Facility Amendment, the Administrative Agent shall have received
legal opinions, board resolutions and other closing documents and certificates
reasonably requested by the Administrative Agent and consistent with those
delivered on the Closing Date under Section 4.02.  The proceeds of the Incremental Extensions of
Credit may be used for any purpose not otherwise prohibited hereunder.  Notwithstanding anything to the contrary in
this Section 2.21, no existing Lender shall be obligated to provide
Incremental Extensions of Credit.


 


ARTICLE
III


 


Representations
and Warranties


 


Each of Holdings (solely to
the extent applicable to it) and the Borrower represents and warrants to each
of the Lenders that (it being understood and agreed that the representations
and warranties made on the Closing Date are deemed to be made concurrently with
the Transactions):


 


SECTION 3.01.              Organization;
Powers.  Each of Holdings, the
Borrower and each of the Restricted Subsidiaries (a) is a limited
partnership, limited liability company or corporation duly organized, validly
existing and in good standing (or, if applicable in a foreign jurisdiction,
enjoys the equivalent status under the laws of any jurisdiction of organization
outside the United States) under the laws of the jurisdiction of its
organization, (b) has all requisite power and authority to own its
property and assets and to carry on its business as now conducted, (c) is
qualified to do business and in good standing in each jurisdiction where such
qualification is required, except where the failure so to qualify or to be in
good standing could not reasonably be expected to have a Material Adverse
Effect.


 


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SECTION 3.02.              Authorization.  The execution, delivery and performance by
Holdings, the Borrower and each of the Subsidiary Loan Parties of each of the
Loan Documents to which it is a party, and the borrowings hereunder and the
transactions forming a part of the Transactions (a) have been duly
authorized by all corporate, stockholder, limited partnership or limited
liability company action required to be obtained by Holdings, the Borrower and
such Subsidiary Loan Parties and (b) will not (i) violate (A) any
provision of (x) law, statute, rule or regulation applicable to such
party, or (y) of the certificate or articles of incorporation or other
constitutive documents or by-laws of Holdings, the Borrower or any such
Subsidiary Loan Party, (B) any applicable order of any court or any rule,
regulation or order of any Governmental Authority or (C) any provision of
any indenture, certificate of designation for preferred stock, agreement or
other instrument to which Holdings, the Borrower or any such Subsidiary Loan
Party is a party or by which any of them or any of their property is or may be
bound, (ii) be in conflict with, result in a breach of or constitute
(alone or with notice or lapse of time or both) a default under, give rise to a
right of or result in any cancellation or acceleration of any right or
obligation (including any payment) or to a loss of a material benefit under any
such indenture, certificate of designation for preferred stock, agreement or
other instrument, where any such conflict, violation, breach or default
referred to in clause (i)(A)(x), (i)(B), (i)(C) or (ii) of this Section 3.02,
could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, or (iii) result in the creation or imposition of
any Lien upon or with respect to any property or assets now owned or hereafter
acquired by Holdings, the Borrower or any such Subsidiary Loan Party, other
than the Liens created by the Loan Documents and Liens permitted by Section 6.02
hereof.


 


SECTION 3.03.              Enforceability.  This Agreement has been duly executed and
delivered by Holdings and the Borrower and constitutes, and each other Loan
Document when executed and delivered by each Loan Party that is party thereto
will constitute, a legal, valid and binding obligation of such Loan Party
enforceable against each such Loan Party in accordance with its terms, subject
to (i) the effects of bankruptcy, insolvency, moratorium, reorganization,
fraudulent conveyance or other similar laws affecting creditors’ rights
generally, (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and (iii) implied
covenants of good faith and fair dealing.


 


SECTION 3.04.              Governmental
Approvals.  No action, consent or
approval of, registration or filing with or any other action by any
Governmental Authority is or will be required in connection with the
Transactions, except for (a) the filing of Uniform Commercial Code
financing statements, (b) filings with the United States Patent and
Trademark Office and the United States Copyright Office and comparable offices
in foreign jurisdictions and equivalent filings in foreign jurisdictions, (c) recordation
of the Mortgages, (d) such as have been made or obtained and are in full
force and effect, (e) such actions, consents, approvals, registrations or
filings the failure to be obtained or made which could not reasonably be
expected to have a Material Adverse Effect and (f) filings or other
actions listed on Schedule 3.04.


 


SECTION 3.05.              Financial
Statements.  (a)  The
audited combined balance sheets of Generac and its Subsidiaries at December 31,
2003, 2004 and 2005, and the audited combined statements of income and cash
flows of Generac and it Subsidiaries for such fiscal years, reported on by and
accompanied by an audit opinion from Deloitte & Touche LLP, copies of
which have heretofore been furnished to each Lender, present fairly in all
material respects the combined financial condition of Generac and its
Subsidiaries for such periods and as at such dates and the combined results of
operations and cash flows of Generac and its Subsidiaries for the years then
ended.


 


(b)   The
unaudited interim consolidated balance sheet of Generac and its Subsidiaries as
at June 30, 2006, and the related unaudited interim combined statements of
income and cash flows for the 6-month period ended June 30, 2006
(including for the comparable period in fiscal year 2005), present 


 


56

















 


fairly in all material
respects the combined financial condition of Generac and its Subsidiaries as at
such date (subject to normal year-end audit adjustments).  All such financial statements have been
prepared in accordance with GAAP (subject to (i) normal
year-end adjustments and (ii) the absence of notes), except as approved by
the aforementioned firm of accountants and disclosed therein.


 


SECTION 3.06.              No
Material Adverse Effect.  Since December 31,
2005, there has been no event, development, circumstance or change has occurred
that has or would reasonably be expected to have a Material Adverse Effect.


 


SECTION 3.07.              Title
to Properties; Possession Under Leases. 
(a)  Each of Holdings, the Borrower and its Restricted
Subsidiaries has good and insurable fee simple title to the Mortgaged
Properties, and good and insurable fee simple title to, or easements or other
limited property interests in, all its other real properties and has good and
valid title to its personal property and assets, in each case, free and clear
of Liens except for defects in title that do not impair the value thereof in
any material respect or interfere with its ability to conduct its business as
currently conducted or to utilize such properties and assets for their intended
purposes and Liens expressly permitted by Section 6.02 or arising
by operation of law and except where the failure to have such title or interest
or existence of such Lien could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.


 


(b)   Each of
Holdings, the Borrower and the Restricted Subsidiaries owns or possesses, or is
licensed or otherwise has the right to use, all patents, trademarks, service
marks, trade names and copyrights and all licenses and rights with respect to
the foregoing, reasonably necessary for the present conduct of its business,
without any conflict (of which the Borrower has been notified in writing) with
the rights of others, except where the failure
to have such rights or where such conflicts and restrictions could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.


 


SECTION 3.08.              Subsidiaries.  (a)  Schedule 3.08(a) 
sets forth as of the Closing Date the name and jurisdiction of incorporation,
formation or organization of each Subsidiary of Holdings and, as to each such
Subsidiary, the percentage of each class of outstanding Equity Interests owned
by Holdings or by any such subsidiary.


 


(b)   As of the
Closing Date, there are no outstanding subscriptions, options, warrants, calls,
rights or other agreements or commitments (other than directors’ qualifying
shares) of any nature relating to any Equity Interests of any Restricted
Subsidiaries of the Borrower.


 


SECTION 3.09.              Litigation;
Compliance with Laws.  (a)  There
are no actions, suits, investigations or proceedings at law or in equity or by
or on behalf of any Governmental Authority or in arbitration now pending
against, or to the knowledge of Holdings or the Borrower threatened in writing
against, Holdings or the Borrower or any of its Restricted Subsidiaries or any
business, property or rights of any such person (i) that involve any Loan
Document or the Transactions or (ii) that would reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.


 


(b)   None of
Holdings, the Borrower, the Subsidiaries or their respective properties or
assets is in violation of any law, rule or regulation (including any
zoning, building, ordinance, code or approval or any building permit, but
excluding any Environmental Laws that are the subject of Section 3.16)
or any restriction of record or agreement affecting any Mortgaged Property, or
is in default with respect to any judgment, writ, injunction or decree of any
Governmental Authority, where such violation or default could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.


 


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SECTION 3.10.              Investment
Company Act.  None of Holdings, the
Borrower and the Restricted Subsidiaries is an “investment company” as defined
in, or subject to regulation under, the Investment Company Act of 1940, as
amended.


 


SECTION 3.11.              Use
of Proceeds.  Subject to the
immediately succeeding sentence, the Borrower will use the proceeds of the Revolving
Facility Loans and Swingline Loans, and may request the issuance of Letters of
Credit, solely for working capital and general corporate purposes, including
Permitted Business Acquisitions.  The
Borrower will use the proceeds of the Term Loans made on the Closing Date and
up to $25.0 million of Revolving Facility Loans (excluding Letters of Credit),
together with the proceeds of the Second Lien Financing, solely to consummate
the Transactions (including the payment of Transaction Costs).


 


SECTION 3.12.              Federal
Reserve Regulations.  (a)  None
of Holdings, the Borrower and the Restricted Subsidiaries is engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying Margin Stock.


 


(b)   No part of
the proceeds of any Loan will be used, whether directly or indirectly, and
whether immediately, incidentally or ultimately, (i) to purchase or carry
Margin Stock or to extend credit to others for the purpose of purchasing or
carrying Margin Stock or to refund indebtedness originally incurred for such
purpose, or (ii) for any purpose that entails a violation of, or that is
inconsistent with, the provisions of the Regulations of the Board, including
Regulation U or Regulation X.


 


SECTION 3.13.              Tax
Returns.


 


(a)   Each of
Holdings, the Borrower and the Subsidiaries has filed or caused to be filed all
U.S. federal, state, local and non-U.S. Tax returns required to have been filed
by it that are material to such companies, taken as a whole, and each such Tax
return is true and correct in all material respects, except, in each case, as
could not be, individually or in the aggregate, reasonably expected to have a
Material Adverse Effect;


 


(b)   Each of
Holdings, the Borrower and the Subsidiaries has timely paid or caused to be
timely paid all Taxes shown to be due and payable by it on the returns referred
to in clause (a) and all other Taxes or assessments (or made adequate
provision (in accordance with GAAP) for the payment of all such amounts due) with
respect to all periods or portions thereof ending on or before the Closing Date
(except Taxes or assessments that are being contested in good faith by
appropriate proceedings in accordance with Section 5.03 and for
which Holdings, the Borrower or any of its Subsidiaries (as the case may be)
has set aside on its books adequate reserves in accordance with GAAP), which
Taxes, if not paid or adequately provided for, could, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; and


 


(c)   Other than
as could not be, individually or in the aggregate, reasonably expected to have
a Material Adverse Effect, with respect to each of Holdings, the Borrower and
the Subsidiaries, no tax lien has been filed, and, to the knowledge of the
Borrower and its Subsidiaries, no claim is being asserted, with respect to any
such Taxes.


 


SECTION 3.14.              No
Material Misstatements.  To the
Borrower’s knowledge, (a)  all written information (other than the
Projections, other forward looking information and information of a general
economic or industry specific nature) (the “Information”)
concerning Holdings, the Borrower, its Subsidiaries and the Transactions
included in the Information Memorandum or otherwise prepared by or on behalf of
the foregoing or their representatives and made available, by or on behalf of
Holdings or the Borrower, to the Joint Lead Arrangers, any Lenders or the
Administrative Agent in connection with the 


 


58

















 


Transactions
or any other transactions contemplated hereby, when taken as a whole, were true
and correct in all material respects as of the Closing Date and does not as of
such date contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained therein not
materially misleading in light of the circumstances under which such statements
were made.


 


(b)   The
Projections furnished to the Joint Lead Arrangers, the Administrative Agent or
the Lenders (i) have been prepared in good faith based upon assumptions
believed by the Borrower to be reasonable at the time made, as of the date the
Projections were furnished to the Joint Lead Arrangers, the Administrative
Agent or the Lenders and as of the Closing Date (it being understood that
actual results may vary from the Projections and that such variations may be
material).


 


SECTION 3.15.              Employee
Benefit Plans.  (a)  Except
as could not reasonably be expected, individually or in the aggregate, to have
a Material Adverse Effect:  (i) each
of the Borrower, the Restricted Subsidiaries and the ERISA Affiliates is in
compliance with the applicable provisions of ERISA and the provisions of the
Code relating to Plans and the regulations and published interpretations
thereunder; (ii) no Reportable Event has occurred during the past five
years as to which the Borrower, any of its Restricted Subsidiaries or any ERISA
Affiliate was required to file a report with the PBGC, other than reports that
have been filed; (iii) the present value of all benefit liabilities under
each Plan of the Borrower its Restricted Subsidiaries and the ERISA Affiliates
(based on those assumptions used to fund such Plan), does not exceed the value
of the assets of such Plan and the present value of all accrued benefit
obligations of all underfunded Plans (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) does not
exceed the value of the assets of all such underfunded Plans; (iv) no
ERISA Event has occurred or is reasonably expected to occur; and (v) none
of the Borrower, the Restricted Subsidiaries and the ERISA Affiliates has
received any written notification that any Multiemployer Plan is in
reorganization or is in endangered or critical status or has been terminated
within the meaning of Title IV of ERISA, or has knowledge that any
Multiemployer Plan is reasonably expected to be in reorganization or in
endangered or critical status or to be terminated.


 


(b)   With respect
to each employee benefit arrangement mandated by non-US law (a “Foreign Benefit
Arrangement”) and with respect to each employee benefit plan (within the
meaning of Section 3(3) of ERISA, whether or not subject to
ERISA) maintained or contributed to by any of the Borrower, the Restricted Subsidiaries
or any ERISA Affiliate that is not subject to US law (a “Foreign Plan”), (i) any
employer and employee contributions required by applicable law or by the terms
of such Foreign Arrangement or Foreign Plan have been made, or, if applicable,
accrued in accordance with normal accounting practices; (ii) the accrued
benefit obligations of each Foreign Plan with respect to all current and former
participants (based on the assumptions used to fund such Foreign Plan) do not
exceed the assets of such Foreign Plan; (iii) each Foreign Plan that is
required to be registered has been registered and has been maintained in good
standing with applicable regulatory authorities; and (iv) each such
Foreign Benefit Arrangement and Foreign Plan is in compliance (A) with all
applicable provisions of law and all applicable regulations and published
interpretations thereunder with respect to such Foreign Plan or Foreign Benefit
Arrangement and (B) with the terms of such plan, except, in each case, for
such noncompliance that could not reasonably be expected to have a Material
Adverse Effect..


 


SECTION 3.16.              Environmental
Matters.  Except as to matters that
could not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect: (i) no written notice of violation, request for
information, order, complaint or assertion of penalty has been received by the
Borrower or any of its Restricted Subsidiaries, and there are no judicial,
administrative or other actions, suits or proceedings pending or, to the
knowledge of the Borrower, threatened which allege a violation of or liability
under any Environmental Laws or concerning Hazardous Materials, in each case
relating to the Borrower or any of its Restricted Subsidiaries, (ii) each
of the Borrower and its Restricted Subsidiaries has all permits necessary for
its operations to comply with all applicable Environmental 


 


59

















 


Laws
and is, and during the term of all applicable statutes of limitation, has been,
in compliance with the terms of such permits and with all other applicable
Environmental Laws, (iii) no Hazardous Material is located at any property
currently or formerly owned, operated or leased by the Borrower or any of its
Restricted Subsidiaries in quantities or concentrations that would reasonably
be expected to give rise to any liability or obligation of the Borrower or any
of its Restricted Subsidiaries under any Environmental Laws, and no Hazardous
Material has been generated by or on behalf of the Borrower or any of its
Restricted Subsidiaries that has been transported to or Released at or from any
location in a manner that would reasonably be expected to give rise to any
liability or obligation of the Borrower or any of its Restricted Subsidiaries,
and (iv) there is no agreement to which the Borrower or any of its
Restricted Subsidiaries is a party in which the Borrower or any of its
Restricted Subsidiaries has assumed or undertaken, or retained, responsibility
for any known or reasonably likely liability or obligation arising under or
relating to Environmental Laws.


 


SECTION 3.17.              Security
Documents.  (a)  The
Collateral Agreement is effective to create in favor of the Administrative
Agent (for the benefit of the Secured Parties) a legal, valid and enforceable
security interest in the Collateral described therein and proceeds
thereof.  In the case of the Pledged
Collateral described in the Collateral Agreement, when certificates or
promissory notes, as applicable, representing such Pledged Collateral are
delivered to the Administrative Agent (together with transfer powers or
endorsements executed in blank), and in the case of the other Collateral
described in the Collateral Agreement (other than registered copyrights and
copyright applications), when financing statements and other filings described
on Schedule 3.17 are filed in the offices specified on Schedule 3.17,
the Administrative Agent (for the benefit of the Secured Parties) shall have a
fully perfected Lien on, and security interest in, all right, title and
interest of the Loan Parties in such Collateral and, subject to Section 9-315
of the New York Uniform Commercial Code, the proceeds thereof, as security for
the Obligations to the extent perfection can be obtained by filing Uniform
Commercial Code financing statements, in each case prior and superior in right
to any other person (except, in the case of Collateral other than Pledged
Collateral, Liens expressly permitted by Section 6.02 and Liens
having priority by operation of law).


 


(b)   When the
Collateral Agreement or a summary thereof is properly filed in the United
States Copyright Office or the United States Patent and Trademark Office, as
applicable, the Administrative Agent (for the benefit of the Secured Parties)
shall have a fully perfected Lien on, and security interest in, all right,
title and interest of the Loan Parties thereunder in the Collateral consisting
of registered copyrights and copyright applications, in each case prior and
superior in right to any other person except Liens expressly permitted by Section 6.02
and Liens having priority by operation of law (it being understood that
subsequent recordings in the United States Copyright Office or United States
Patent and Trademark Office, as the case may be, may be necessary to perfect a
lien on registered copyrights and copyright applications acquired by the
grantors after the Closing Date).


 


(c)   The
Mortgages shall be effective to create in favor of the Administrative Agent
(for the benefit of the Secured Parties) a legal, valid and enforceable Lien on
all of the Loan Parties’ right, title and interest in and to the Mortgaged
Property thereunder and the proceeds thereof, and when such Mortgages are filed
or recorded in the proper real estate filing or recording offices, the Administrative
Agent (for the benefit of the Secured Parties) shall have a fully perfected
Lien on, and security interest in, all right, title and interest of the Loan
Parties in such Mortgaged Property and, to the extent applicable, subject to Section 9-315
of the Uniform Commercial Code, the proceeds thereof, in each case prior and
superior in right to any other person, other than with respect to the rights of
a person pursuant to Liens expressly permitted by Section 6.02 and
Liens having priority by operation of law.


 


SECTION 3.18.              Solvency.  (a)  Immediately after giving
effect to the Transactions on the Closing Date and immediately following the
making of each Loan on the Closing Date and after giving effect to the
application of the proceeds of each Loan, (i) the fair value of the assets
of Holdings, 


 


60

















 


the Borrower and its Subsidiaries on a consolidated basis, at a fair
valuation, will exceed the debts and liabilities, direct, subordinated,
contingent or otherwise, of Holdings, the Borrower and its Subsidiaries on a
consolidated basis, respectively; (ii) the present fair saleable value of
the property of Holdings, the Borrower and its Subsidiaries on a consolidated
basis will be greater than the amount that will be required to pay the probable
liability of Holdings, the Borrower and its Subsidiaries on a consolidated
basis, respectively, on their debts and other liabilities, direct,
subordinated, contingent or otherwise, as such debts and other liabilities become
absolute and matured; (iii) Holdings, the Borrower and its Subsidiaries on
a consolidated basis will be able to pay their debts and liabilities, direct,
subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; (iv) Holdings, the Borrower and its Subsidiaries on
a consolidated basis will not have unreasonably small capital with which to
conduct the businesses in which they are engaged as such businesses are now
conducted and are proposed to be conducted following the Closing Date; and (v) neither
Holdings, the Borrower, nor any of its Subsidiaries shall be “insolvent” under the meaning assigned to such term in 11 U.S.C. §101 et. seq. and
Wisconsin Statutes Chapter 242.


 


(b)   Neither
Holdings nor the Borrower intends to, and neither Holdings nor the Borrower
believes that it or any of its subsidiaries will, incur debts beyond the
ability of Holdings and its Subsidiaries, on a consolidated basis, to pay such
debts as they mature, taking into account the timing and amounts of cash to be
received by it or any such subsidiary and the timing and amounts of cash to be
payable on or in respect of its Indebtedness or the Indebtedness of any such
subsidiary.


 


SECTION 3.19.              Labor
Matters.  Except as, individually or
in the aggregate, would not reasonably be expected to have a Material Adverse
Effect:  (a) there are no strikes or
other labor disputes pending or, to the knowledge of Holdings or the Borrower,
threatened in writing against the Borrower or any of its Restricted Subsidiaries;
(b) the hours worked and payments made to employees of the Borrower and
its Restricted Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable law dealing with such matters; and (c) all
payments due from the Borrower or any of its Restricted Subsidiaries or for
which any claim may be made against the Borrower or any of its Restricted
Subsidiaries, on account of wages and employee health and welfare insurance and
other benefits have been paid or accrued as a liability on the books of the
Borrower or such Restricted Subsidiary to the extent required by GAAP.  Except as, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect the
consummation of the Transactions will not give rise to a right of termination
or right of renegotiation on the part of any union under any material
collective bargaining agreement to which the Borrower or any of its
Subsidiaries (or any predecessor) is a party or by which Holdings, the Borrower
or any of its Subsidiaries (or any predecessor) is bound.


 


SECTION 3.20.              Insurance.  Schedule 3.20 sets forth a true,
complete and correct description of all material insurance maintained by or on
behalf of Holdings, the Borrower or the Subsidiaries as of the Closing
Date.  As of such date, such insurance is
in full force and effect.


 


SECTION 3.21.              Transaction
Documents.  Holdings and the Borrower
have delivered to the Administrative Agent a true and correct copy of the
Merger Agreement (including all schedules, exhibits, amendments, supplements
and modifications thereto) and the Second Lien Loan Documents.


 


SECTION 3.22.              Patriot
Act.  To the extent applicable, each
Loan Party is in compliance, in all material respects, with the (i) Trading
with the Enemy Act, as amended, and each of the foreign assets control
regulations of the Untied States Treasury Department (31 CFR, Subtitle B,
Chapter V, as amended) and any other enabling legislation or executive order
relating thereto, and (ii) Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act
of 2001).  To the knowledge of the
Borrower, no part of the proceeds of the Loans will be used, directly or indirectly,
for any payments to any governmental official or employee, political party, 


 


61

















 


official
of a political party, candidate for political office, or anyone else acting in
an official capacity, in order to obtain, retain or direct business or obtain
any improper advantage, in violation of the United States Foreign Corrupt
Practices Act of 1977, as amended.


 


SECTION 3.23.              No
Default.  Neither Holdings, the
Borrower nor any of their Restricted Subsidiaries is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any of its Contractual Obligations, and no condition
exists which, with the giving of notice or the lapse of time or both, could
constitute such a default, except where the consequences, direct or indirect,
of such default or defaults, if any, could not reasonably be expected to have a
Material Adverse Effect.


 


ARTICLE
IV


 


Conditions
of Lending


 


The obligations of (a) the
Lenders (including the Swingline Lender) to make Loans and (b) any Issuing
Bank to issue Letters of Credit or increase the stated amounts of Letters of
Credit hereunder (each, a “Credit Event”) are subject to the
satisfaction of the following conditions:


 


SECTION 4.01.              All
Credit Events.  On the date of each
Borrowing (including each Swingline Borrowing) and on the date of each
issuance, amendment, extension or renewal of a Letter of Credit:


 


(a)   The
Administrative Agent shall have received, in the case of a Borrowing, a
Borrowing Request as required by Section 2.03 (or a Borrowing
Request shall have been deemed given in accordance with the last paragraph of Section 2.03)
or, in the case of the issuance of a Letter of Credit, the applicable Issuing
Bank and the Administrative Agent shall have received a notice requesting the
issuance of such Letter of Credit as required by Section 2.05(b) or,
in the case of a Swingline Borrowing, the Swingline Lender and the
Administrative Agent shall have received a Swingline Borrowing Request as
required by Section 2.04(b).


 


(b)   The
representations and warranties set forth in Article III hereof
(other than, if the date of such Borrowing or issuance, amendment, extension or
renewal of a Letter of Credit is the Closing Date, in Section 3.06)
shall be true and correct in all material respects as of such date (other than
an amendment, extension or renewal of a Letter of Credit without any increase
in the stated amount of such Letter of Credit), with the same effect as though
made on and as of such date, except to the extent such representations and
warranties expressly relate to an earlier date (in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date); provided that, notwithstanding
anything to the contrary contained herein, the only representation relating to
the Borrower and its Subsidiaries and their businesses the making of which
shall be a condition to Borrowing on the Closing Date, shall be (i) the
representations made by Generac in the Merger Agreement as are material to the
interests of the Lenders, but only to the extent that Holdings and the Borrower
have the right to terminate their obligations under the Merger Agreement as a
result of a breach of such representations in the Merger Agreement and (ii) the
representations and warranties in Sections 3.01, 3.02, 3.03,
3.10 and 3.12 of this Agreement.


 


(c)   At the time
of and immediately after such Borrowing or issuance, amendment, extension or
renewal of a Letter of Credit (other than an amendment, extension or renewal of
a Letter of Credit without any increase in the stated amount of such Letter of
Credit), as applicable, no Event of Default or Default shall have occurred and
be continuing.


 


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Each Borrowing and each
issuance, amendment, extension or renewal of a Letter of Credit shall be deemed
to constitute a representation and warranty by the Borrower on the date of such
Borrowing, issuance, amendment, extension or renewal as applicable, that the conditions
specified in paragraphs (b) and (c) of this Section 4.01
shall have been satisfied on such date in accordance with the terms of such
paragraphs.


 


SECTION 4.02.              First
Credit Event.  On the Closing Date:


 


(a)   The
Administrative Agent (or its counsel) shall have received from each party
hereto either (i) a counterpart of this Agreement signed on behalf of such
party or (ii) written evidence satisfactory to the Administrative Agent
(which may include fax transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement.


 


(b)   The
Administrative Agent shall have received, on behalf of itself, the Lenders and
each Issuing Bank on the Closing Date, a written opinion of Weil, Gotshal &
Manges LLP, special counsel for Holdings and the Borrower, (A) dated the
Closing Date, (B) addressed to each Issuing Bank, the Administrative Agent
and the Lenders on the Closing Date and (C) in form and substance
reasonably satisfactory to the Administrative Agent and covering such other
matters relating to the Loan Documents and the Transactions as the
Administrative Agent shall reasonably request, and each of Holdings and the
Borrower hereby instructs its counsel to deliver such opinions.


 


(c)   The
Administrative Agent shall have received in the case of each Loan Party each of
the items referred to in clauses (i), (ii), (iii) and (iv) below:


 


(i)   a copy of
the certificate or articles of incorporation, certificate of limited
partnership or certificate of formation, including all amendments thereto, of
each Loan Party, certified as of a recent date by the Secretary of State (or
other similar official) of the jurisdiction of its organization, and a
certificate as to the good standing (to the extent such concept or a similar
concept exists under the laws of such jurisdiction) of each such Loan Party as
of a recent date from such Secretary of State (or other similar official);


 


(ii)   a
certificate of the secretary or assistant secretary or similar officer of each
Loan Party dated the Closing Date and certifying:


 


(A)          that attached thereto is a true and
complete copy of the by-laws (or limited partnership agreement, limited
liability company agreement or other equivalent governing documents) of such
Loan Party as in effect on the Closing Date and at all times since a date prior
to the date of the resolutions described in clause (B) below,


 


(B)           that attached thereto is a true and
complete copy of resolutions duly adopted by the board of directors (or
equivalent governing body) of such Loan Party (or its managing general partner
or managing member) authorizing the execution, delivery and performance of the
Loan Documents to which such person is a party and, in the case of the
Borrower, the borrowings hereunder, and that such resolutions have not been
modified, rescinded or amended and are in full force and effect on the Closing
Date,


 


(C)           that the certificate or articles of
incorporation, certificate of limited partnership or certificate of formation
of such Loan Party has not been amended since the date of the last amendment
thereto disclosed pursuant to clause (i) above,


 


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(D)          as to the incumbency and specimen
signature of each officer executing any Loan Document or any other document
delivered in connection herewith on behalf of such Loan Party,


 


(E)           as to the absence of any pending
proceeding for the dissolution or liquidation of such Loan Party;


 


(iii)   a
certificate of another officer as to the incumbency and specimen signature of
the Secretary or Assistant Secretary or similar officer executing the
certificate pursuant to clause (ii) above; and


 


(iv)   a
certificate of a Responsible Officer of Holdings or the Borrower certifying
that  as of the Closing Date (i) all
the representations and warranties set forth in Section 4.01 are
true and correct and (ii) that as of the Closing Date, no Default or Event
of Default has occurred and is continuing or would result from any Borrowing to
occur on the date hereof or the application of the proceeds thereof.


 


(d)   (i) The
Collateral and Guarantee Requirement shall have been satisfied, (ii) the
Administrative Agent shall have received a duly completed Collateral
Questionnaire dated the Closing Date, together with all attachments contemplated
thereby, (iii) the Administrative Agent shall have received the results of
a search of the Uniform Commercial Code (or equivalent) filings made with
respect to the Loan Parties and copies of the financing statements (or similar
documents) disclosed by such search and (iv) the Administrative Agent
shall have received evidence reasonably satisfactory to the Administrative
Agent that the Liens indicated by such financing statements (or similar
documents) are either permitted by Section 6.02 or have been released
(or authorized for release in a manner satisfactory of the Agent).


 


(e)   The Lenders
shall have received the financial statements, Projections and other financial
information referred to in Sections 3.05 and Section 3.14.


 


(f)   On the
Closing Date, substantially concurrently with the funding of the Loans,
Holdings and its Subsidiaries shall have (i) consummated the Merger in all
material respects on the terms described in the Merger Agreement and no
provisions thereof shall have been waived, amended, supplemented or otherwise
modified in a manner adverse to the Lenders in any material respect without the
consent of the Administrative Agent and the Administrative Agent under the
Second Lien Credit Agreement, (ii) consummated the Equity Financing, (iii) repaid
in full all Existing Debt (other than Indebtedness permitted under Section 6.01)
and caused the termination of any commitments to lend or make other extensions
of credit under all such Existing Debt, (v) delivered to the
Administrative Agent all documents or instruments necessary to release all
Liens securing Indebtedness or other obligations of Holdings and its
Subsidiaries being so repaid or terminated, and (vi) made arrangements
satisfactory to Administrative Agent with respect to the cancellation of any
letters of credit outstanding with respect to the Indebtedness being so repaid
or terminated, or the issuance of Letters of Credit to support the obligations
of Holdings and its Subsidiaries with respect thereto.


 


(g)   The Lenders
shall have received a solvency certificate substantially in the form of Exhibit F
and signed by the Chief Financial Officer of the Borrower.


 


(h)   The Agents
shall have received all fees payable thereto or to any Lender on or prior to
the Closing Date and, to the extent invoiced, all other amounts due and payable
pursuant to the Loan Documents on or prior to the Closing Date, including, to
the extent invoiced, reimbursement or payment of all reasonable out-of-pocket
expenses (including reasonable fees, charges and disbursements of 


 


64

















 


Simpson Thacher &
Bartlett LLP) required to be reimbursed or paid by the Loan Parties hereunder
or under any other Loan Document.


 


(i)   Since June 30, 2006,
except as contemplated by the Acquisition and the Transactions, there shall not
have occurred and there is no circumstance or occurrence that is reasonably
likely to have (individually or in the aggregate) a Material Adverse Effect (as
such term is defined in the Merger Agreement).


 


(j)   The Agents
shall have received, at least ten days prior to the Closing Date, all
documentation and other information required by regulatory authorities under
applicable “know your customer” and anti-money laundering rules and
regulations, including without limitation the USA PATRIOT Act.


 


(k)   The
Administrative Agent shall have received duly executed originals of a letter of
direction from the Borrower addressed to the Administrative Agent, on behalf of
itself and Lenders, with respect to the disbursement on the Closing Date of the
proceeds of the Loans made on such date.


 


Each Agent and each Lender,
by delivering its signature page to this Agreement and funding a Loan on
the Closing Date shall be deemed to have acknowledged receipt of and consented
to and approved each Loan Document and each other document required to be
approved by any Agent or Lender, as applicable, on the Closing Date.


 


ARTICLE
V


 


Affirmative
Covenants


 


Each of Holdings (solely as
to Sections 5.01, 5.05 and 5.09 as applicable to it) and
the Borrower covenants and agrees with each Lender that so long as this
Agreement shall remain in effect and until the Commitments have been terminated
and the principal of and interest on each Loan, all Fees and all other expenses
or amounts payable under any Loan Document (other
than obligations for taxes, costs, indemnifications, reimbursements, damages
and other contingent liabilities in respect of which no claim or demand for
payment has been made or, in the case of indemnifications, no notice been given
(or reasonably satisfactory arrangements have otherwise been made)) shall
have been paid in full and all Letters of Credit have been canceled or have
expired (or have been cash collateralized in a
manner consistent with the requirements of Section 2.05 or
backstopped with a letter of credit having terms and conditions reasonably
satisfactory to the applicable Issuing Banks), and all amounts drawn
thereunder have been reimbursed in full, unless the Required Lenders shall
otherwise consent in writing, the Borrower (and Holdings solely to the extent
applicable to it) will, and the Borrower will cause each of its Restricted
Subsidiaries to:


 


SECTION 5.01.              Existence;
Businesses and Properties.  (a)  Do
or cause to be done all things necessary to preserve, renew and keep in full
force and effect its legal existence, except (i) where the failure to do
so would not reasonably be expected to have a Material Adverse Effect, (ii) as
otherwise expressly permitted under Section 6.05, and (iii) the
liquidation or dissolution of Restricted Subsidiaries if the assets of such
Restricted Subsidiaries (to the extent they exceed estimated liabilities) are
acquired by the Borrower or a Subsidiary of the Borrower.


 


(b)   Except where
the failure to do so would not reasonably be expected to have a Material
Adverse Effect, do or cause to be done all things necessary to (i) lawfully
obtain, preserve, renew, extend and keep in full force and effect the permits,
franchises, authorizations, patents, trademarks, service marks, trade names,
copyrights, licenses and rights with respect thereto reasonably necessary to 


 


65

















 


the normal conduct of the
business of the Borrower and its Restricted Subsidiaries, and (ii) at all
times maintain and preserve all property reasonably necessary to the normal
conduct of the business of the Borrower and its Restricted Subsidiaries and
keep such property in satisfactory repair, working order and condition and from
time to time make, or cause to be made, all needful and proper repairs,
renewals, additions, improvements and replacements thereto in accordance with
prudent industry practice (in each case except as expressly permitted by this
Agreement).


 


SECTION 5.02.              Insurance.  (a)  Maintain, with financially
sound and reputable insurance companies, insurance in such amounts and against
such risks as are customarily maintained by similarly situated companies
engaged in the same or similar businesses operating in the same or similar
locations.  Each such policy of insurance
shall (i) name the Administrative Agent, on behalf of Secured Parties as
an additional insured thereunder as its interests may appear and (ii) in
the case of each casualty insurance policy, contain a loss payable clause or
endorsement, reasonably satisfactory in form and substance to the
Administrative Agent, that names Collateral Agent, on behalf of Lenders as the
loss payee thereunder and provides for at least thirty days’ prior written
notice to Collateral Agent of any cancellation of such policy.


 


(b)   If at any
time the area in which the Premises (as defined in the Mortgages) are located
is designated a special “flood hazard area” in any Flood Insurance Rate Map
published by the Federal Emergency Management Agency (or any successor agency),
obtain flood insurance in such reasonable total amount as the Administrative
Agent may from time to time reasonably require, and otherwise comply with the
National Flood Insurance Program as set forth in the Flood Disaster Protection
Act of 1973, as it may be amended from time to time.


 


SECTION 5.03.              Taxes.  Pay and discharge promptly when due all
material Taxes, imposed upon it or upon its income or profits or in respect of
its property, as well as all lawful claims which, if unpaid, might give rise to
a Lien (other than a Lien permitted under Section 6.02) upon such
properties or any part thereof except to the extent not overdue by more than 30
days or, if more than 30 days overdue; (i) the validity or amount thereof
shall be contested in good faith by appropriate proceedings, and the Borrower
or the affected Restricted Subsidiary, as applicable, shall have set aside on
its books reserves in accordance with GAAP with respect thereto or (ii) with
respect to which the failure to make payment could not reasonably be expected
to have a Material Adverse Effect, and (b) in the case of a Tax or claim
which has or may become a Lien on any of the Collateral, such contest
proceedings conclusively operate to stay the sale of any portion of the
Collateral to satisfy such Tax or claim.


 


SECTION 5.04.              Financial
Statements, Reports, etc.  Furnish to
the Administrative Agent (which will promptly furnish such information to the
Lenders):


 


(a)   within 110 days after the
end of each fiscal year (commencing with fiscal year 2006), (x) a
consolidated balance sheet and related statements of operations, cash flows and
owners’ equity showing the financial position of the Borrower and its
Subsidiaries as of the close of such fiscal year and the consolidated results
of its operations during such year and setting forth in comparative form the
corresponding figures for the prior fiscal year, which consolidated balance
sheet and related statements of operations, cash flows and owners’ equity shall
be audited by independent public accountants of recognized national standing
and accompanied by an opinion of such accountants (which opinion shall be
without a “going concern” or like qualification or exception and without any
qualification or exception as to the scope of such audit) to the effect that
such consolidated financial statements fairly present, in all material
respects, the financial condition and results of operations of the Borrower and
its Subsidiaries on a consolidated basis in accordance with GAAP (it being
understood that the delivery by the Borrower of annual reports on Form 10-K
of the Borrower and its consolidated Subsidiaries shall satisfy the
requirements of 


 


66

















 


this
Section 5.04(a) to the extent such annual reports include the
information specified herein) and (y) supporting schedules reconciling
such consolidated balance sheet and related statements of operations, cash
flows and owners’ equity with the consolidated financial condition and results
of operations of the Borrower for the relevant period;


 


(b)   within 45 days after the end
of each of the first three fiscal quarters of each fiscal year (commencing with
the first fiscal quarter of 2007), (x) a consolidated balance sheet and
related statements of operations and cash flows showing the financial position
of the Borrower and its Subsidiaries as of the close of such fiscal quarter and
the consolidated results of its operations during such fiscal quarter and the
then-elapsed portion of the fiscal year and setting forth in comparative form
the corresponding figures for the corresponding periods of the prior fiscal
year, all of which shall be in reasonable detail and which consolidated balance
sheet and related statements of operations and cash flows shall be certified by
a Financial Officer of the Borrower on behalf of the Borrower as fairly
presenting, in all material respects, the financial position and results of
operations of the Borrower and its Subsidiaries on a consolidated basis in
accordance with GAAP (subject to normal year-end audit adjustments and the
absence of footnotes) (it being understood that the delivery by the Borrower of
quarterly reports on Form 10-Q of the Borrower and its consolidated
Subsidiaries shall satisfy the requirements of this Section 5.04(b) to
the extent such quarterly reports include the information specified herein) and
(y) supporting schedules reconciling such consolidated balance sheet and
related statements of operations, cash flows and owners’ equity with the
consolidated financial position and results of operations of the Borrower for
the relevant period;


 


(c)   (i) concurrently with
any delivery of financial statements under paragraphs (a) or (b) above,
a certificate of a Financial Officer of the Borrower in substantially the form
attached hereto as Exhibit I (x) certifying that no Default or Event
of Default has occurred or, if such a Default or an Event of Default or Default
has occurred, specifying the nature and extent thereof and any corrective
action taken or proposed to be taken with respect thereto and (y) commencing
with the fiscal quarter ending September 30, 2007, setting forth
computations in detail reasonably satisfactory to the Administrative Agent
demonstrating compliance with the Total Leverage Ratio and (ii) concurrently
with any delivery of financial statements under paragraph (a) above, (A) a
certificate of the accounting firm opining on or certifying such statements
stating whether they obtained knowledge during the course of their examination
of such statements of any Default or Event of Default under Section 6.10
(which certificate may be limited to accounting matters and disclaims
responsibility for legal interpretations, and may be subject to other customary
qualifications) and (B) a certificate of a Financial Officer of the
Borrower commencing with the 2007 Excess Cash Flow Period, setting forth the
amount, if any, of Excess Cash Flow for the Excess Cash Flow Period then ended
and the Available Excess Cash Flow Amount as of the date of such certificate,
in each case together with the calculation thereof in reasonable detail;


 


(d)   promptly after the same
become publicly available, copies of all periodic and other publicly available
reports, proxy statements and, to the extent requested by the Administrative
Agent, other materials filed by Holdings, the Borrower or any of its
Subsidiaries with the SEC or any securities exchange, or after an initial
public offering, distributed to its stockholders generally, as applicable and
all press releases and other statements made available generally by Holdings or
any of its Subsidiaries to the public concerning material developments in the
business of Holdings or any of its Subsidiaries;


 


(e)   within 90 days after the
beginning of each fiscal year, a detailed consolidated and consolidated
quarterly budget for such fiscal year (including a projected consolidated and
consolidated balance sheet of the Borrower and its Subsidiaries as of the end
of such fiscal year, 


 


67

















 


and
the related consolidated and consolidated statements of projected cash flow and
projected income) and, as soon as available, significant revisions, if any, of
such budget and quarterly projections with respect to such fiscal year (to the
extent that such revisions have been approved
by the Borrower’s board of directors (or equivalent governing body)),
including a description of underlying assumptions with respect thereto
(collectively, the “Budget”), which Budget shall in each case be
accompanied by the statement of a Financial Officer of the Borrower to the
effect that, to such Financial Officer’s knowledge, the Budget is a reasonable
estimate for the period covered thereby;


 


(f)    promptly, a copy of the
final management letter of independent accountants submitted to the board of
directors (or equivalent governing body) or any committee thereof of any of the
Borrower or any Restricted Subsidiary in connection with the annual audit made
by independent accountants of the books of the Borrower or any such Restricted
Subsidiary;


 


(g)   promptly following a request
therefor, all documentation and other information that the Administrative Agent
reasonably requests on its behalf or on behalf of any Lender in order to comply
with its ongoing obligations under applicable “know your customer” and
anti-money laundering rules and regulations, including the USA PATRIOT
Act;


 


(h)   together with the delivery
of the annual compliance certificate required by Section 5.04(c),
deliver an updated Collateral Questionnaire reflecting all changes since the
date of the information most recently received pursuant to this paragraph (i) or
Section 5.09(f); and


 


(i)    in connection with each
annual renewal of the insurance policies referred to in Section 5.02, an
insurance broker’s certificate evidencing the insurance coverage maintained by
the Loan Parties and a certificate by the Borrower that such insurance is in
compliance with the insurance coverage required by the Loan Documents; and


 


(j)    promptly, from time to
time, such other information regarding the operations, business affairs and
financial condition of Holdings, the Borrower or any of its Subsidiaries, or
compliance with the terms of any Loan Document, as in each case the
Administrative Agent may reasonably request (for itself or on behalf of any Lender).


 


SECTION 5.05.              Litigation
and Other Notices.  Furnish to the
Administrative Agent written notice of the following promptly after any
Responsible Officer of Holdings or the Borrower obtains actual knowledge
thereof:


 


(a)   any Default or Event of
Default, specifying the nature and extent thereof and the corrective action (if
any) proposed to be taken with respect thereto;


 


(b)   the filing or commencement
of, or any written threat or notice of intention of any person to file or
commence, any action, suit or proceeding, whether at law or in equity or by or
before any Governmental Authority or in arbitration, against Holdings, the
Borrower or any of its Subsidiaries as to which an adverse determination is
reasonably probable and which, if adversely determined, could reasonably be
expected to have a Material Adverse Effect;


 


(c)   the occurrence of any ERISA
Event that, together with all other ERISA Events that have occurred, could
reasonably be expected to have a Material Adverse Effect; and


 


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(d)   any other development
specific to Holdings, the Borrower or any of its Subsidiaries that is not a
matter of general public knowledge and that has had, or could reasonably be
expected to have, a Material Adverse Effect.


 


SECTION 5.06.              Compliance
with Laws.  Comply with all laws,
rules, regulations and orders of any Governmental Authority applicable to it or
its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect;
provided that this Section 5.06 shall not apply to Environmental
Laws, which are the subject of Section 5.08, or to laws related to
Taxes, which are the subject of Section 5.03.


 


SECTION 5.07.              Maintaining
Records; Access to Properties and Inspections.  Maintain all financial records in a manner sufficient to permit the preparation of
consolidated financial statements in accordance with GAAP.  Upon the request of Administrative Agent
permit any persons designated by the Administrative Agent or, upon the
occurrence and during the continuance of an Event of Default, any Lender to
visit and inspect the financial records and the properties of Holdings, the
Borrower or any of its Subsidiaries at reasonable times during normal business
hours, upon reasonable prior notice to Holdings or the Borrower, and as often
as reasonably requested and to make extracts from and copies of such financial
records, and permit any persons designated by the Administrative Agent or, upon
the occurrence and during the continuance of an Event of Default, any Lender
upon reasonable prior notice to Holdings or the Borrower to discuss the
affairs, finances and condition of Holdings, the Borrower or any of its
Subsidiaries with the officers thereof and independent accountants therefor
(subject to reasonable requirements of confidentiality, including requirements
imposed by law or by contract); provided, that the Borrower shall have the right to have one
or more of its designees present during any discussions with its independent
accountants and provided, further, that the Administrative Agent
shall not exercise its rights under this Section 5.07 more than two
times during any calendar year absent the existence of an Event of Default and
only one such time shall be at the Borrower’s expense.  To the extent practicable and so long as no
Event of Default has occurred and is continuing, the Administrative Agent
agrees to use commercially reasonable efforts to coordinate and otherwise to
conduct the foregoing visits and inspections so as to avoid creating
unreasonable burdens upon management of the Borrower and its Subsidiaries.


 


SECTION 5.08.              Compliance
with Environmental Laws.  (a)  Comply, and make reasonable efforts to cause
all lessees and other persons occupying its properties to comply, with all
Environmental Laws applicable to its operations and properties; and obtain and
renew all authorizations and permits required pursuant to Environmental Law for
its operations and properties, in each case in accordance with Environmental
Laws.  This clause (a) shall be deemed
not breached by a noncompliance with the foregoing if, upon learning of such
noncompliance, the Borrower and any affected Subsidiaries promptly undertake
reasonable efforts to eliminate such noncompliance, and such noncompliance and
the elimination thereof, in the aggregate with any other noncompliance with any
of the foregoing and the elimination thereof, could not reasonably be expected
to have a Material Adverse Effect


 


(b)   Except as could not reasonably be expected to
have a Material Adverse Effect,  generate, use, treat, store, release, dispose
of, and otherwise manage Hazardous Materials in a manner that would not
reasonably be expected to result in a material liability to any Borrower or any
of its Restricted Subsidiaries or to materially affect any real property owned
or leased by any of them; and take reasonable efforts to prevent any other
person from generating, using, treating, storing, releasing, disposing of, or
otherwise managing Hazardous Materials in a manner that could reasonably be
expected to result in a material liability to, or materially affect any real
property owned or operated by, the Borrower or any of its Restricted
Subsidiaries.


 


69

















 


SECTION 5.09.              Further
Assurances; Mortgages.  (a)  Execute any and all further documents,
financing statements, agreements and instruments, and take all such further
actions (including the filing and recording of financing statements, fixture
filings, Mortgages and other documents and recordings of Liens in stock
registries), that may be required under any applicable law, or that the
Administrative Agent may reasonably request, to cause the Collateral and
Guarantee Requirement to be and remain satisfied, all at the expense of the
Loan Parties and provide to the Administrative Agent, from time to time upon
reasonable request, evidence reasonably satisfactory to the Administrative
Agent as to the perfection and priority of the Liens created or intended to be
created by the Security Documents.


 


(b)   If any
asset (including any fee owned real property (other than real property covered
by paragraph (c) below) or improvements thereto or any interest therein) that
has an individual fair market value in an amount greater than $5.0 million is
acquired by Holdings, the Borrower or any Subsidiary Loan Party after the
Closing Date or owned by an entity at the time it becomes a Subsidiary Loan
Party (in each case other than assets constituting Collateral under a Security
Document that become subject to the Lien of such Security Document upon
acquisition thereof), cause such asset to be subjected to a Lien securing the
Obligations and take, and cause the Subsidiary Loan Parties to take, such
actions as shall be necessary or reasonably requested by the Administrative
Agent to grant and perfect such Liens, including actions described in paragraph
(a) of this Section, all at the expense of the Loan Parties, subject to
paragraph (c) or paragraph (g) below.


 


(c)   Upon
the request of the Administrative Agent, grant and cause each of the Subsidiary
Loan Parties to grant to the Administrative Agent (or, if the Administrative Agent shall so direct, to a co-collateral agent,
sub-collateral agent or separate collateral agent pursuant to Section 8.12) security
interests and mortgages in such owned real property of the Borrower or any such
Subsidiary Loan Parties acquired after the Closing Date and having a value at
the time of acquisition in excess of $5.0 million pursuant to documentation in
such form as is reasonably satisfactory to the Administrative Agent (each, a “Mortgage”)
and constituting valid and enforceable Liens subject to no other Liens except
as are permitted by Section 6.02. 
Unless otherwise waived by the Administrative Agent, with respect to
each such Mortgage, the Borrower shall deliver (at its expense) to the
Administrative Agent contemporaneously therewith (i) a policy or policies or
marked-up unconditional binder of title insurance or foreign equivalent
thereof, as applicable, paid for by the Borrower, issued by a nationally
recognized title insurance company insuring the Lien of each such Mortgage as a
valid first Lien on the Mortgaged Property described therein, free of any other
Liens except as permitted by Section 6.02, together with such
endorsements, coinsurance and reinsurance as the Administrative Agent may
reasonably request and (ii) the legal opinions of local U.S. counsel in the
state where such real property is located, in form and substance reasonably
satisfactory to the Administrative Agent.


 


(d)   If any
additional direct or indirect Restricted Subsidiary of Holdings is formed or
acquired after the Closing Date and if such Subsidiary  is a Subsidiary Loan Party, concurrently with
the delivery of financial statements pursuant to Section 5.04(a) or (b),
notify the Administrative Agent and the Lenders thereof and, within 20 Business
Days after such date or such longer period as the Administrative Agent shall
agree, cause the Collateral and Guarantee Requirement to be satisfied with
respect to such Subsidiary and with respect to any Equity Interest in or
Indebtedness of such Subsidiary Loan Party owned by or on behalf of any Loan
Party.


 


(e)   If any
additional Foreign Subsidiary of Holdings is formed or acquired after the Closing
Date and if such Subsidiary is a “first tier” Foreign Subsidiary, concurrently
with the delivery of financial statements pursuant to Section 5.04(a) or
(b), notify the Administrative Agent and the Lenders thereof and, within
20 Business Days after such date or such longer period as the Administrative
Agent shall reasonably agree, cause the Collateral and Guarantee Requirement to
be satisfied with respect to any Equity Interest in such Foreign Subsidiary
owned by or on behalf of any Loan Party.


 


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(f)   (i) Furnish
to the Administrative Agent prompt written notice of any change in (A) any Loan
Party’s corporate or organization name, (B) any Loan Party’s organizational
form or (C) any Loan Party’s organizational identification number; provided
that neither Holdings nor the Borrower shall effect or permit any such change
unless all filings have been made, or will have been made within any applicable
statutory period, under the Uniform Commercial Code or otherwise that are
required in order for the Administrative Agent to continue at all times
following such change to have a valid, legal and perfected security interest in
all the Collateral for the benefit of the Secured Parties and (ii) promptly
notify the Administrative Agent if any material portion of the Collateral is
damaged or destroyed.


 


(g)   The
Collateral and Guarantee Requirement and the provisions of this Section 5.09
need not be satisfied with respect to (i) any Equity Interests if, and to the
extent that, and for so long as doing so would violate, applicable law or,
other than in the case of Wholly-Owned Subsidiaries, a contractual obligation
binding on such Equity Interests, (ii) any assets acquired after the Closing
Date, to the extent that, and for so long as, taking such actions would violate
applicable law or a contractual obligation binding on such assets that existed
at the time of the acquisition thereof and was not created or made binding on
such assets in contemplation or in connection with the acquisition of such
assets (except in the case of assets acquired with Indebtedness permitted
pursuant to Section 6.01 that is secured by a Lien permitted pursuant to
Section 6.02); (ii) any cash, cash equivalents or deposit accounts or
securities accounts, (iii) any motor vehicles or similar property subject to
state law certificate of title statutes, (iv) other assets as to which the
Administrative Agent determines, in its reasonable discretion, that the costs
of obtaining a perfected security interest are excessive in relation to the
value of the security to be afforded thereby and (v) other assets which the
Administrative Agent, in consultation with the Borrower, determines, in its
reasonable discretion, should be excluded taking into account the practical
operations of the Borrower’s business and its client relationships.


 


SECTION 5.10.              Fiscal
Year; Accounting.  In the case of
Holdings and the Borrower, cause its fiscal year to end on December 31.


 


SECTION 5.11.              Maintenance
of Ratings.  At all times use
commercially reasonable efforts to maintain ratings issued by Moody’s and
S&P with respect to the Facilities.


 


SECTION 5.12.              Interest
Rate Protection.  Within 90 days
after the Closing Date, the Borrower will enter into, and thereafter for a
period of not less than two years (which may be satisfied with a combination of
Eurocurrency Borrowings with an Interest Period of 12 months and a forward Swap
Agreement that effectively fixes the rate of interest for a continual period of
not less than two years) will maintain in effect, one or more Swap Agreements
for interest rate protection, provided that not more than 50% of the
outstanding Loans under Term Facility and the Second Lien Term Facility as of
the Closing Date shall be required to be subject to such Swap Agreements or
bear interest at a fixed rate of interest.


 


SECTION 5.13.              Use
of Proceeds.  Subject to the
following clause, use the proceeds of the Revolving Facility Loans and the
Swingline Loans and request the issuance of Letters of Credit solely for
working capital and general corporate purposes including Permitted Business
Acquisitions and distributions permitted by Section 6.06; and use the
proceeds of the Term Loans made on the Closing Date and up to $25.0 million of
Revolving Facility Loans (exclusive of Letters of Credit) solely to consummate
the Transactions (including the payment of Transaction Costs).


 


SECTION 5.14.              Certification
of Public Information.  Concurrently
with the delivery of any document or notice required to be delivered pursuant
to any Loan Document, the Borrower shall indicate in writing whether such
document or notice contains Nonpublic Information.  The Borrower and 


 


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each
Lender acknowledge that certain of the Lenders may be “public-side” Lenders
(Lenders that do not wish to receive material non-public information with
respect to the Borrower, its Subsidiaries or their securities) and, if
documents or notices required to be delivered pursuant to this Section 5.15
or otherwise are being distributed through IntraLinks/IntraAgency, Syndtrak or
another relevant website or other information platform (the “Platform”), any
document or notice that the Borrower has indicated contains Nonpublic
Information shall not be posted on that portion of the Platform designated for
such public-side Lenders.  If the
Borrower has not indicated whether a document or notice delivered pursuant to
this Section 5.15 contains Nonpublic Information, the Administrative
Agent reserves the right to post such document or notice solely on that portion
of the Platform designated for Lenders who wish to receive material nonpublic
information with respect to the Borrower, its Subsidiaries and their
securities.


 


ARTICLE
VI


 


Negative
Covenants


 


Each of Holdings (solely as
to Section 6.08(a)) and the Borrower covenants and agrees with each
Lender that, so long as this Agreement shall remain in effect and until the
Commitments have been terminated and the principal of and interest on each
Loan, all Fees and all other expenses or amounts payable under any Loan
Document (other than obligations for taxes,
costs, indemnifications, reimbursements, damages and other contingent
liabilities in respect of which no claim or demand for payment or has been made
or, in the case of indemnifications, no notice been given or reasonably
satisfactory arrangements have otherwise been made) have been paid in
full and all Letters of Credit have been canceled or have expired and all
amounts drawn thereunder have been reimbursed in full (or have been cash collateralized in a manner consistent with the
requirements of Section 2.05 or backstopped with a letter of credit
having terms and conditions reasonably satisfactory to the applicable Issuing
Banks), unless the Required Lenders shall otherwise consent in writing,
the Borrower will not and will not permit any of its Restricted Subsidiaries to
(and Holdings as to Section 6.08(a), will not):


 


SECTION 6.01.              Indebtedness.  Incur, create, assume or permit to exist any
Indebtedness, except:


 


(a)   Indebtedness created
hereunder and under the other Loan Documents;


 


(b)   Indebtedness pursuant to
Swap Agreements permitted by Section 6.11;


 


(c)   Indebtedness owed to
(including obligations in respect of letters of credit or bank guarantees or
similar instruments for the benefit of) any person providing workers’
compensation, health, disability or other employee benefits or property,
casualty or liability insurance or self-insurance or other similar obligations
to the Borrower or any Restricted Subsidiary, pursuant to reimbursement or
indemnification obligations to such person, provided that upon the
incurrence of Indebtedness with respect to reimbursement obligations regarding
workers’ compensation claims, such obligations are reimbursed not later than 60
days following such incurrence;


 


(d)   Indebtedness of the Borrower
to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary
(including pursuant to the Intercompany Note), provided that (i) Indebtedness
of any Subsidiary that is not a Subsidiary Loan Party to the Loan Parties shall
be permitted under Section 6.04 and (ii) Indebtedness of the Borrower to
any Subsidiary and Indebtedness of any other Loan Party to any Subsidiary that
is not a Subsidiary Loan Party (the “Subordinated Intercompany Debt”)
shall be subordinated to the Obligations pursuant to the subordination terms
set forth in the Intercompany Note;


 


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(e)   Indebtedness in respect of
bids, trade contracts (other than for debt for borrowed money), leases (other
than Capital Lease Obligations), statutory obligations, surety, stay, customs
and appeal bonds, performance, performance and completion and return of money
bonds, government contracts, financial assurances and completion guarantees and
similar obligations, in each case provided in the ordinary course of business,
including those incurred to secure health, safety and environmental obligations
in the ordinary course of business (including letters of credit, bank
guarantees or similar instruments in lieu of such items to support the issuance
thereof);


 


(f)    Cash Management Obligations
and other Indebtedness in respect of netting services, overdraft protection and
similar arrangements, in each case, in connection with cash management and
deposit accounts;


 


(g)   (i) Indebtedness assumed or
acquired in connection with Permitted Business Acquisitions, which Indebtedness
in each case, exists at the time of such Permitted Business Acquisition and is
not created in contemplation of such event, the aggregate principal amount
thereof at the time of such acquisition or assumption together with
Indebtedness outstanding pursuant to paragraph (h) of this Section 6.01,
this paragraph (g) and the Remaining Present Value of leases permitted under Section
6.03 does not exceed the greater of (x) $75.0 million and (y) an amount
equal to 10.0% of the consolidated revenues of the Borrower and its Restricted
Subsidiaries for the period of four fiscal quarters most recently ended on or
prior to the date of determination for which financial statements are
available; and (ii) any Permitted Refinancing Indebtedness incurred to
Refinance such Indebtedness;


 


(h)   Capital Lease Obligations,
mortgage financings and purchase money Indebtedness (including any industrial
revenue bond, industrial development bond and similar financings) incurred by
the Borrower or any Restricted Subsidiary prior to or within 270 days after the
acquisition, lease, repair or improvement of the respective asset in order to
finance such acquisition, lease, repair or improvement, and any Permitted
Refinancing Indebtedness in respect thereof, in an aggregate principal amount
that at the time of, and after giving effect to, the incurrence thereof
(together with Indebtedness outstanding pursuant to paragraph (g) of this Section
6.01, this paragraph (h) and the Remaining Present Value of leases
permitted under Section 6.03) would not exceed the greater of (x) $75.0
million and (y) an amount equal to 10.0% of the consolidated revenues of the
Borrower and its Restricted Subsidiaries for the period of four fiscal quarters
most recently ended on or prior to the date of determination for which
financial statements are available;


 


(i)    Capital Lease Obligations
incurred by the Borrower or any Restricted Subsidiary in respect of any Sale
and Lease-Back Transaction that is permitted under Section 6.03;


 


(j)    Second Lien Indebtedness in
an aggregate principal amount that is not in excess of $430.0 million, and any
Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;


 


(k)   Guarantees (i) by the
Subsidiary Loan Parties of the Indebtedness of the Borrower described in
paragraph (j), (ii) by the Borrower or any Subsidiary Loan Party of any
Indebtedness of any other Loan Party permitted to be incurred under this
Agreement, (iii) by the Borrower or any Subsidiary Loan Party of Indebtedness
otherwise permitted hereunder of any Subsidiary that is not a Subsidiary Loan
Party or (iv) by any Restricted Subsidiary that is not a Loan Party of Holdings
and its Subsidiaries to the extent, in the case of clauses (iii) and (iv), such
Guarantees are permitted by Section 6.04(b), (j), (m), (o)
or (q); provided that Guarantees by the Borrower or any
Subsidiary Loan Party under this Section 6.01(k) of any other Indebtedness
of a person that is 


 


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subordinated
to the Obligations shall be expressly subordinated to the Obligations on terms
not materially less favorable to the Lenders as those contained in the
subordination of such other Indebtedness to the Obligations;


 


(l)    Indebtedness arising from
agreements of the Borrower or any Restricted Subsidiary providing for
indemnification, adjustment of purchase or acquisition price or similar
obligations, in each case, incurred or assumed in connection with the
acquisition or disposition of any business or assets (including Equity
Interests of Subsidiaries) of the Borrower or any Subsidiary permitted by Section
6.04 or Section 6.05, other than Guarantees of Indebtedness incurred
by any person acquiring all or any portion of such business or assets for the
purpose of financing such acquisition;


 


(m)  Indebtedness supported by a
Letter of Credit, in a principal amount not in excess of the stated amount of
such Letter of Credit;


 


(n)   Indebtedness consisting of (i)
the financing of insurance premiums or (ii) take-or-pay obligations contained
in supply arrangements, in each case, in the ordinary course of business;


 


(o)   (i) Permitted Debt
Securities and (ii) Permitted Refinancing Indebtedness in respect thereof; provided
that, in the case of clause (i), after giving effect to any such incurrence, no
Event of Default shall have occurred and be continuing and the Borrower shall
be in compliance with the Total Leverage Ratio on a Pro Forma Basis;


 


(p)   other Indebtedness of the
Borrower or any Restricted Subsidiary, in an aggregate principal amount that at
the time of, and after giving effect to, the incurrence thereof, would not
exceed the sum of $50 million plus the amount by which (A) the greater of (x) $75.0
million and (y) an amount equal to 10.0% of the consolidated revenues of the
Borrower and its Restricted Subsidiaries for the period of four fiscal quarters
most recently ended on or prior to the date of determination for which financial
statements are available exceeds (B) the sum of all Indebtedness outstanding
pursuant to paragraphs (h) and (i) of this Section 6.01 plus the
Remaining Present Value of leases permitted under Section 6.03;


 


(q)   Indebtedness existing on the
Closing Date and set forth on Schedule 6.01 and any Permitted
Refinancing Indebtedness incurred to Refinance such Indebtedness;


 


(r)    letters of credit or bank
guarantees (other than Letters of Credit issued pursuant to this Agreement)
having an aggregate face amount not to exceed $15.0 million outstanding at any
time;


 


(s)   Indebtedness incurred by the
Borrower and its Restricted Subsidiaries representing (i) deferred compensation
to directors, officers, employees, members of management and consultants of
such person in the ordinary course of business or (ii) deferred compensation or
other similar arrangements in connection with the Transactions or any Permitted
Business Acquisition;


 


(t)    Indebtedness consisting of
promissory notes issued by the Borrower and its Restricted Subsidiaries to
current or former directors, officers, employees, members of management or
consultants of such person (or their respective estate, heirs, family members,
spouse or former spouse) to finance the purchase or redemption of Equity
Interests of any Parent Entity permitted by Section 6.05;


 


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(u)   Indebtedness in respect of
letters of credit, bankers’ acceptances supporting trade payables, warehouse
receipts or similar facilities entered into in the ordinary course of business;
and


 


(v)   all premium (if any),
interest (including post-petition interest), fees, expenses, charges and
additional or contingent interest on Indebtedness described in paragraphs (a) through
(u) above.


 


SECTION 6.02.              Liens.  Create, incur, assume or permit to exist any
Lien on any property or assets (including Equity Interests, evidences of
Indebtedness or other securities of any person) at the time owned by it or on
any income or revenues or rights in respect of any thereof, except:


 


(a)   Liens on property or assets
of the Borrower and its Restricted Subsidiaries existing on the Closing Date
and set forth on Schedule 6.02 or, to the extent not listed in such
Schedule, where such property or assets have a fair market value that does not
exceed $1.0 million in the aggregate and any refinancing, modification,
replacement, renewal or extension thereof; provided, that the Lien does
not extend to any additional property other than after-acquired property that
is affixed to or incorporated in the property covered by such Lien and the
proceeds and products thereof;


 


(b)   any Lien created under the
Loan Documents or permitted in respect of any Mortgaged Property by the terms
of the applicable Mortgage;


 


(c)   any Lien securing
Indebtedness or Permitted Refinancing Indebtedness permitted by Section 6.01(g),
provided that such Lien (i) in the case of Liens securing Capital Lease
Obligations, applies solely to the assets securing such Indebtedness
immediately prior to the consummation of the related Permitted Business
Acquisition and after acquired property, to the extent required by the
documentation governing such Indebtedness (without giving effect to any
amendment thereof effected in contemplation of such acquisition or assumption),
and the proceeds and products thereof; provided, that individual
financings otherwise permitted to be secured hereunder provided by one person
(or its affiliates) may be cross collateralized to other such financings
provided by such person (or its affiliates), (ii) in the case of Liens securing
Indebtedness other than Capital Lease Obligations or purchase money
Indebtedness, such Liens do not extend to the property of any person other than
the person acquired or formed to make such acquisition and the subsidiaries of
such person (which person shall own no property other than the property
acquired in such Permitted Business Acquisition), (iii) in the case of clause
(i) and clause (ii), such Lien is not created in contemplation of or
in connection with such acquisition or assumption and (iv) in the case of a
Lien securing Permitted Refinancing Indebtedness, any such Lien is permitted,
subject to compliance with clause (e) of the definition of the term “Permitted
Refinancing Indebtedness”;


 


(d)   Liens for Taxes, assessments
or other governmental charges or levies which are not overdue by more than 30
days or, if more than 30 days overdue, (i) which are being contested in
accordance with Section 5.03 or (ii) the aggregate amount of which is
not in excess of $5 million;


 


(e)   landlord’s, carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s, construction or other
like Liens arising in the ordinary course of business and securing obligations
that are not overdue by more than 30 days or, if more than 30 days overdue, (i)
which are being contested in accordance with Section 5.03 or (ii) the
aggregate amount of which is not in excess of $5 million;


 


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(f)    (i) pledges and deposits
made (including obligations in respect of letters of credit, bank guarantees or
similar instruments to secure) in the ordinary course of business in compliance
with the Federal Employers Liability Act or any other workers’ compensation,
unemployment insurance and other social security laws or regulations and
deposits securing premiums or liability to insurance carriers under insurance
or self-insurance arrangements in respect of such obligations or otherwise as
permitted in Section 6.01(c) and (ii) pledges and deposits securing liability
for reimbursement or indemnification obligations of (including obligations in
respect of letters of credit, bank guarantees or similar instruments for the
benefit of) insurance carriers in respect of property, casualty or liability
insurance to the Borrower or any Subsidiary provided by such insurance
carriers;


 


(g)   deposits to secure the
performance of bids, trade contracts (other than for debt for borrowed money),
leases (other than Capital Lease Obligations), statutory obligations, surety,
stay, customs and appeal bonds, performance, performance and completion and
return of money bonds, government contracts, financial assurances and
completion and similar obligations and similar obligations of a like nature
(including letters of credit, bank guarantees or similar instruments in lieu of
any such items or to support the issuance thereof) incurred in the ordinary
course of business, including those incurred pursuant to Environmental Laws in
the ordinary course of business;


 


(h)   zoning restrictions,
easements, trackage rights, leases (other than Capital Lease Obligations),
licenses, special assessments, rights-of-way, restrictions on use of real
property and other similar encumbrances incurred in the ordinary course of
business that, in the aggregate, do not interfere in any material respect with
the ordinary conduct of the business of the Borrower or any Subsidiary;


 


(i)    Liens securing Capital
Lease Obligations, mortgage financings, and purchase money Indebtedness or
improvements thereto hereafter acquired, leased or repaired by the Borrower or
any Restricted Subsidiary (including the interests of vendors and lessors under
conditional sale and title retention agreements); provided that (i) such
security interests secure Indebtedness permitted by Section 6.01(h) (including
any Permitted Refinancing Indebtedness in respect thereof), (ii) such security
interests are created, and the Indebtedness secured thereby is incurred, within
270 days after such acquisition, lease, completion
of construction or repair or improvement, (iii) the Indebtedness secured
thereby does not exceed the cost of such equipment or other property or
improvements at the time of such acquisition or construction, including
transaction costs (including any fees, costs or expenses or prepaid interest or
similar items) incurred by the Borrower or any Restricted Subsidiary in
connection with such acquisition or construction or material repair or
improvement or financing thereof and (iv) such security interests do not apply
to any other property or assets of the Borrower or any Restricted Subsidiary
(other than to the proceeds and products of and the accessions to such
equipment or other property or improvements but not to other parts of the
property to which any such improvements are made); provided, that individual
financings otherwise permitted to be secured hereunder provided by one person
(or its affiliates) may be cross collateralized to other such financings
provided by such person (or its affiliates);


 


(j)    Liens arising out of sale
and lease-back transactions permitted under Section 6.03, so long as
such Liens attach only to the property sold and being leased in such
transaction and any accessions thereto or proceeds or products thereof and
related property;


 


(k)   Liens securing judgments
that do not constitute an Event of Default under Section 7.01(j);


 


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(l)    Liens disclosed by the
title insurance policies delivered pursuant to Section 5.09 and any
replacement, extension or renewal of any such Lien; provided that such
replacement, extension or renewal Lien shall not cover any property other than
the property that was subject to such Lien prior to such replacement, extension
or renewal; provided, further, that the Indebtedness and other
obligations secured by such replacement, extension or renewal Lien are
permitted by this Agreement;


 


(m)  any interest or title of a
lessor, sublessor, licensor or sublicensee under any leases, subleases,
licenses or sublicenses entered into by the Borrower or any Restricted Subsidiary
in the ordinary course of business;


 


(n)   Liens that are contractual
rights of set-off (i) relating to the establishment of depository relations
with banks not given in connection with the issuance of Indebtedness, (ii) relating
to pooled deposit or sweep accounts of the Borrower or any Restricted
Subsidiary to permit satisfaction of overdraft or similar obligations incurred
in the ordinary course of business of the Borrower or any Restricted
Subsidiary, (iii) relating to purchase orders and other agreements entered into
with customers of the Borrower or any Restricted Subsidiary in the ordinary
course of business and (iv) attaching to commodity trading or other brokerage
accounts incurred in the ordinary course of business;


 


(o)   Liens arising solely by
virtue of any statutory or common law provision relating to banker’s liens,
rights of set-off or similar rights;


 


(p)   Liens securing obligations
in respect letters of credit permitted under Section 6.01(c), (e), (r) and
(u);


 


(q)   (i) leases, subleases, licenses
or sublicenses of property in the ordinary course of business or (ii) rights
reserved to or vested in any person by the terms of any lease, license,
franchise, grant or permit held by the Borrower or any Restricted Subsidiary or
by a statutory provision to terminate any such lease, license, franchise, grant
or permit or to require periodic payments as a condition to the continuance
thereof;


 


(r)    Liens in favor of customs
and revenue authorities arising as a matter of law to secure payment of customs
duties in connection with the importation of goods;


 


(s)   Liens (i) solely on any cash
earnest money deposits or Permitted Investments made by the Borrower or any of
its Restricted Subsidiaries in connection with any letter of intent or purchase
agreement with respect to any Permitted Business Acquisition and (ii) consisting
of an agreement to dispose of any property in a transaction permitted under Section
6.05;


 


(t)    Liens arising from
precautionary UCC financing statements regarding operating leases or consignment
or bailee arrangements;


 


(u)   Liens on securities that are
the subject of repurchase agreements constituting Permitted Investments under
clause (c) of the definition thereof arising out of such repurchase
transaction;


 


(v)   Liens securing obligations
under the Second Lien Loan Documents; provided that such Liens are
subordinated to the Liens securing the Obligations in accordance with the terms
of the Intercreditor Agreement or any other intercreditor agreement meeting the
requirements of clause (y) of the definition of Permitted Refinancing
Indebtedness;


 


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(w)  Liens on Equity Interests in
Joint Ventures or Unrestricted Subsidiaries securing obligations of such Joint
Venture or Unrestricted Subsidiaries, as applicable;


 


(x)    Liens in favor of the
Borrower or its Restricted Subsidiaries securing Indebtedness permitted under Section
6.04(b);


 


(y)   Liens arising out of
conditional sale, title retention, consignment or similar arrangements for sale
of goods entered into by the Borrower or its Restricted Subsidiaries in the
ordinary course of business; and


 


(z)    other Liens with respect to
property or assets of the Borrower or any Restricted Subsidiaries; provided
that the amount of the Indebtedness or other obligations secured by such Liens
does not exceed $25.0 million at any time.


 


SECTION 6.03.              Sale
and Lease-Back Transactions.  Enter
into any arrangement, directly or indirectly, with any person whereby it shall
sell or transfer any property, real or personal, used or useful in its
business, whether now owned or hereafter acquired, and substantially
contemporaneously rent or lease from the transferee such property or other
property that it intends to use for substantially the same purpose or purposes
as the property being sold or transferred (a “Sale and Lease-Back
Transaction”), provided that a Sale and Lease-Back Transaction shall
be permitted (a) with respect to property (i) owned by the Borrower or any
Domestic Subsidiary which is a Restricted Subsidiary that is acquired, leased,
repaired or improved after the Closing Date so long as such Sale and Lease-Back
Transaction is consummated within 270 days of the acquisition, lease, repair or
improvement of such property or (ii) owned by any Foreign Subsidiary which is a
Restricted Subsidiary regardless of when such property was acquired or (b) with
respect to any property owned by the Borrower or any Domestic Subsidiary which
is a Restricted Subsidiary, if at the time the lease in connection therewith is
entered into, and after giving effect to the entering into of such lease, the
Remaining Present Value of such lease (together with Indebtedness outstanding
pursuant to paragraphs (g) and (h) of Section 6.01 and the Remaining
Present Value of outstanding leases previously entered into under this Section
6.03(b)) would not exceed the greater of (x) $75.0 million and (y) an
amount equal to 10.0% of the consolidated revenues of the Borrower and its
Restricted Subsidiaries for the period of four fiscal quarters most recently
ended on or prior to the date of determination for which financial statements
are available.


 


SECTION 6.04.              Investments,
Loans and Advances.  Purchase, hold
or acquire any Equity Interests, evidences of Indebtedness or other securities
of, make or permit to exist any loans or advances to or Guarantees of the
obligations of, or make or permit to exist any investment or any other interest
in any other person, or make a designation of a Restricted Subsidiary as an
Unrestricted Subsidiary of (each, an “Investment”), except:


 


(a)   the Transactions;


 


(b)   Investments by the Borrower
or any Restricted Subsidiary in the Equity Interests of the Borrower or any
Subsidiary as a result of intercompany loans or Guarantees of Indebtedness
otherwise expressly permitted hereunder of the Borrower or any Subsidiary; provided
that the sum of Investments (valued at the time of the making thereof and
without giving effect to any write-downs or write-offs thereof, but net in the
case of intercompany loans) after the Closing Date by the Borrower and the
Subsidiary Loan Parties in Subsidiaries (including Foreign Subsidiaries of the
Borrower) that are not Subsidiary Loan Parties shall not exceed an aggregate
net amount equal to (x) $35.0 million (plus any return of capital actually
received in cash by the Borrower or any Subsidiary Loan Party in respect of
Investments theretofore made by them pursuant to this paragraph (b)); plus
(y) the portion, if any, of the Available Basket Amount on 


 


78

















 


the
date of such election that the Borrower elects to apply to this clause(b)(y);
and provided  further that intercompany current liabilities
incurred in the ordinary course of business in connection with the cash
management operations of the Borrower and its Restricted Subsidiaries shall not
be included in calculating the limitation in this paragraph at any time;


 


(c)   Permitted Investments and
investments that were Permitted Investments when made;


 


(d)   Investments arising out of
the receipt by the Borrower or any Subsidiary of non-cash consideration for the
sale of assets permitted under Section 6.05 (excluding Section 6.05(e));


 


(e)   (i) loans and advances to
directors, officers, employees, members of management or consultants of
Holdings, the Borrower or any Restricted Subsidiary in the ordinary course of
business not to exceed $7.5 million in the aggregate at any time outstanding
(calculated without regard to write-downs or write-offs thereof) and (ii) advances
of payroll payments and expenses to directors, officers, employees, members of
management or consultants in the ordinary course of business;


 


(f)    accounts receivable, notes
receivable, security deposits and prepayments arising and trade credit granted
in the ordinary course of business and any Investments received in satisfaction
or partial satisfaction thereof from financially troubled account debtors and
other credits to suppliers made in the ordinary course of business;


 


(g)   Investments under Swap
Agreements permitted pursuant to Section 6.11;


 


(h)   Investments existing on, or
contractually committed as of, the Closing Date and set forth on Schedule 6.04
and any modification, replacement, renewal or extension thereof so long as any
such modification, renewal or extension thereof does not increase the amount of
such Investment except as otherwise permitted by this Section 6.04;


 


(i)    Investments resulting from
pledges and deposits permitted by Section 6.02(f) and (g);


 


(j)    Investments constituting
Permitted Business Acquisitions;


 


(k)   Guarantees (i) permitted by Sections
6.01(k) and (ii) of leases (other than Capital Lease Obligations) or of
other obligations not constituting Indebtedness, in each case in the ordinary
course of business;


 


(l)    Investments received in
connection with the bankruptcy or reorganization of any person, or settlement
of obligations of, or other disputes with or judgments against, or foreclosure
or deed in lieu of foreclosure with respect to any Lien held as security for an
obligation, in each case in the ordinary course of business;


 


(m)  Investments of the Borrower
or any Restricted Subsidiary acquired after the Closing Date or of a person
merged into or consolidated with the Borrower or a Restricted Subsidiary, in
each case, in accordance with Section 6.05 (other than Section 6.05(e)),
after the Closing Date to the extent that such Investments were not made in
contemplation of or in connection with such acquisition, merger or
consolidation and were in existence on the date of such acquisition, merger or
consolidation and any modification, replacement, renewal or extension thereof
so long as any such modification, renewal or extension thereof does not
increase the amount of such Investment except as otherwise permitted by this Section
6.04;


 


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(n)   acquisitions by the Borrower
of obligations of one or more directors, officers, employees, members or
management or consultants of Holdings, the Borrower or its Subsidiaries in
connection with such person’s acquisition of Equity Interests of Holdings (or
its Parent Entity), so long as no cash is actually advanced by the Borrower or
any of its Subsidiaries to such persons in connection with the acquisition of
any such obligations;


 


(o)   Investments in Holdings in
amounts and for purposes for which dividends or distributions to Holdings are
permitted under Section 6.06;


 


(p)   Investments consisting of
Indebtedness, Liens, Sale and Lease-Back Transactions, mergers, consolidations,
sales of assets and acquisition and dividends and distributions permitted under
Section 6.01, 6.02, 6.03, 6.05 and 6.06;
and


 


(q)   other Investments by the
Borrower or any Restricted Subsidiary in an aggregate amount (valued at the
time of the making thereof, and without giving effect to any write-downs or
write-offs thereof) not to exceed (i) $50 million, (plus any
returns of capital actually received in cash by the relevant investor in
respect of investments theretofore made by it pursuant to this
paragraph (q)) plus (ii) the portion, if any, of the Available
Basket Amount on the date of such election that the Borrower elects to apply to
this Section 6.04(q); provided that, with respect to clause
(ii), any such Investment in an Unrestricted Subsidiary may not be used to pay
or facilitate the payment of a dividend or any other distribution to the
ultimate shareholder of any Parent Entity unless such dividend or other
distribution is otherwise permitted by Section 6.06(e).


 


SECTION 6.05.              Mergers,
Consolidations, Sales of Assets and Acquisitions.  Merge into or consolidate with any other
person, or permit any other person to merge into or consolidate with it, or
sell, transfer, lease or otherwise dispose of (in one transaction or in a
series of related transactions) all or any part of its assets (whether now
owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of
any Equity Interests of any Restricted Subsidiary of the Borrower, except that this Section shall not prohibit:


 


(a)   (i) the sale of
inventory in the ordinary course of business by the Borrower or any Restricted
Subsidiary, (ii) the sale of surplus, obsolete or worn out equipment or
other property in the ordinary course of business by the Borrower or any
Restricted Subsidiary, (iii) the leasing or subleasing of real property in
the ordinary course of business by the Borrower or any Restricted Subsidiary or
(iv) the sale of or other disposition of Permitted Investments in the
ordinary course of business;


 


(b)   if at the time thereof and
immediately after giving effect thereto no Event of Default shall have occurred
and be continuing, (i) the merger of any Subsidiary of Holdings (which
shall either be (A) newly formed expressly for the purpose of such
transaction and which owns no assets or (B) a Subsidiary of the Borrower)
into the Borrower in a transaction in which the Borrower is the surviving or
resulting entity or the surviving or resulting person expressly assumes the
obligations of the Borrower in a manner reasonably satisfactory to the
Administrative Agent, (ii) the merger or consolidation of any Subsidiary
with or into any other Subsidiary; provided that in a transaction
involving (A) the Borrower or (B) any Subsidiary Loan Party, a
Subsidiary Loan Party shall be the surviving or resulting person or such
transaction shall be an Investment permitted by Section 6.04 or (iii) the
liquidation or dissolution of any Restricted Subsidiary (other than the
Borrower) or change in form of entity of any Restricted Subsidiary if the
Borrower determines in good faith that such liquidation, dissolution or change
in form is in the best interests of the Borrower;


 


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(c)   sales, transfers, leases or
other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation
or otherwise); provided that any sales, transfers, leases or other
dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan
Party shall be made in compliance with Section 6.04 and Section 6.07;


 


(d)   Sale and Lease-Back
Transactions permitted by Section 6.03;


 


(e)   Liens permitted by Section 6.02,
Investments permitted by Section 6.04, and dividends,
distributions, redemptions and repurchases permitted by Section 6.06;


 


(f)    the sales, transfers or
other dispositions of receivables in the ordinary course of business and not as
part of an accounts receivables financing transaction;


 


(g)   sales, transfers, leases or
other dispositions of assets by the Borrower or any Restricted Subsidiary not
otherwise permitted by this Section 6.05; provided that the
aggregate gross proceeds (including non-cash proceeds) of any or all assets
sold, transferred, leased or otherwise disposed of in reliance upon this
paragraph (g) shall not exceed during any fiscal year $25.0 million with
any unused amount to be carried forward to the succeeding 730 days; provided,
further, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);


 


(h)   sales, transfers, leases or
other dispositions by the Borrower or any Restricted Subsidiary of assets that
were acquired in connection with an acquisition permitted hereunder (including,
without limitation, Permitted Business Acquisitions); provided that any
such sale, transfer, lease or other disposition shall be made or contractually
committed to be made within 270 days of the date such assets were acquired
by the Borrower or such Subsidiary; and provided  further that, on
a Pro Forma Basis for such disposition of a line of business or manufacturing
facility and the consummation of such Permitted Business Acquisition, the
Borrower and its Restricted Subsidiaries are in compliance with the Total
Leverage Ratio;


 


(i)    any merger or consolidation
in connection with an Investment permitted under Section 6.04
(including any Subsidiary Redesignation or the designation of an Unrestricted
Subsidiary as a Restricted Subsidiary); provided that (i) if the
continuing or surviving person is a Restricted Subsidiary, such Restricted
Subsidiary shall have complied with its obligations under Section 5.09,
(ii) in the case of a transaction, the purpose of which is a Subsidiary
Redesignation or the designation of an Unrestricted Subsidiary as a Restricted
Subsidiary, such transaction must be consummated in compliance with Section 6.04,
and (iii) if the Borrower is a party thereto, the Borrower shall be the
continuing or surviving person or the continuing or surviving person shall
assume the obligations of the Borrower in a manner reasonably acceptable to the
Administrative Agent;


 


(j)    licensing and
cross-licensing arrangements involving any technology or other intellectual
property of the Borrower or any Restricted Subsidiary in the ordinary course of
business;


 


(k)   sales, leases or other
dispositions of inventory of the Borrower and its Restricted Subsidiaries
determined by the management of the Borrower to be no longer useful or necessary
in the operation of the business of the Borrower or any of its Subsidiaries;


 


(l)    Permitted Business
Acquisitions;


 


(m)  the issuance of Qualified
Capital Stock by the Borrower;


 


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(n)   sales of Equity Interests of
any Subsidiary of the Borrower; provided that, in the case of the sale
of the Equity Interests of a Subsidiary Loan Party, the purchaser shall be the
Borrower or another Subsidiary Loan Party or such transaction shall fit within
another clause of this Section 6.05 or constitute an Investment
permitted by Section 6.04 (other than Section 6.04(d));


 


(o)   sales, transfers, leases and
other dispositions of property to the extent that (A) such property is
exchanged for credit against the purchase price of similar replacement property
or (B) the proceeds of such sale, transfer, lease or other disposition are
promptly applied to the purchase price of such replacement property;


 


(p)   leases, subleases, licenses
or sublicenses of property in the ordinary course of business and which do not
materially interfere with the business of the Borrower and its Restricted
Subsidiaries;


 


(q)   transfers of property
subject to casualty or condemnation proceeding (including in lieu thereof) upon
receipt of the Net Proceeds therefor;


 


(r)    sales, transfers, leases
and other dispositions of property in the ordinary course of business
consisting of the abandonment of intellectual property rights which, in the
reasonable good faith determination of the Borrower, are not material to the
conduct of the business of the Borrower and its Restricted Subsidiaries;


 


(s)   sales, transfers, leases and
other dispositions of Investments in Joint Ventures to the extent required by,
or made pursuant to, buy/sell arrangements between the joint venture parties
set forth in, joint venture arrangements and similar binding arrangements;


 


(t)    sales, transfers, leases
and other dispositions of real property and related assets in the ordinary
course of business in connection with relocation activities for directors,
officers, employees, members of management, or consultants of the Borrower and
its Restricted Subsidiaries;


 


(u)   voluntary terminations of
Swap Agreements;


 


(v)   the expiration of any option
agreement in respect of real or personal property;


 


(w)  sales, transfers, leases and
other dispositions of Unrestricted Subsidiaries;


 


(x)    any Restricted Subsidiary
of the Borrower may consummate a merger, dissolution, liquidation or
consolidation, the purpose of which is to effect a sale, lease, transfer or other
disposition of assets otherwise permitted under this Section 6.05;
and


 


(y)  sales, transfers, leases and
other dispositions permitted by Section 6.04 (other than Section 6.04(p))
and Section 6.06 (other than Section 6.06(h)) and Liens
permitted by Section 6.02.


 


Notwithstanding
anything to the contrary contained above in this Section 6.05, (i) no
sale, transfer or other disposition of assets in excess of $5.0 million shall
be permitted by this Section 6.05 (other than sales, transfers,
leases or other dispositions pursuant to clause (b), (c), (l), (r), (s) or
(t)) unless such disposition is for fair market value and (ii) no sale,
transfer or other disposition of assets shall be permitted by paragraph (d) or
(k) of this Section 6.05 unless such disposition is for at
least 75% cash consideration and (iii) no sale, transfer or other
disposition of assets in excess of $5.0 million shall be


 


82

















 


permitted
by paragraph (g) or (h) of this Section 6.05 unless such disposition
is for at least 75% cash consideration; provided that for purposes of
the 75% cash consideration requirement in the foregoing clauses (ii) and
(iii), (x) the amount of any Indebtedness of the Borrower or any
Restricted Subsidiary (as shown on such person’s most recent balance sheet or
in the notes thereto) that is assumed by the transferee of any such assets and (y) the amount of any trade-in value applied
to the purchase price of any replacement assets acquired in connection with
such sale transfer or disposition shall be deemed to be cash.


 


SECTION 6.06.              Dividends
and Distributions.  Declare or pay,
directly or indirectly, any dividend or make any other distribution (by
reduction of capital or otherwise), whether in cash, property, securities or a
combination thereof, with respect to any of its Equity Interests (other than
dividends and distributions on Equity Interests payable solely by the issuance
of additional Equity Interests of the person paying such dividends or
distributions) or directly or indirectly redeem, purchase, retire or otherwise
acquire for value any of its Equity Interests or set aside any amount for any
such purpose (other than through the issuance of additional Equity Interests of
the person redeeming, purchasing, retiring or acquiring such shares); provided,
however, that:


 


(a)   any Restricted Subsidiary of
the Borrower may declare and pay dividends to, repurchase its Equity Interests
from or make other distributions to the Borrower or to any Restricted
Subsidiary of the Borrower (which, in the case of non-Wholly Owned
Subsidiaries, shall be made (x) to the Borrower or any Restricted
Subsidiary that is a direct or indirect parent of such Subsidiary and to each
other owner of Equity Interests of such Subsidiary based on their relative
ownership interests or (y) to the extent required by agreements set forth
on Schedule 6.07);


 


(b)   the Borrower may declare and
pay dividends or make other distributions as shall be necessary to allow
Holdings (or any Parent Entity) (i) to pay operating expenses in the
ordinary course of business and other corporate overhead, legal, accounting and
other professional fees and expenses, (ii) to pay fees and expenses
related to any debt or equity offering, investment or acquisition permitted
hereunder (whether or not successful), (iii) to pay franchise or similar
taxes and other fees and expenses reasonably required in connection with the
maintenance of its existence and its ownership of the Borrower and in order to
permit Holdings to make payments (other than cash interest payments) which
would otherwise be permitted to be paid by the Borrower under Section 6.07(b),
(iv) to finance any Investment permitted to be made under Section 6.04; provided,
that (A) such dividend or distribution under this clause (iv) shall
be made substantially concurrently with the closing of such Investment and, (B) the
Parent Entity shall, immediately following the closing thereof cause all
property acquired to be contributed to the Borrower or one of its Restricted
Subsidiaries or the merger of the person formed or acquired into the Borrower
or one of its Restricted Subsidiaries in order to consummate such Investment;
and (v) the proceeds of which shall be used by any Parent Entity to pay
customary salary, bonus and other benefits payable to directors, officers,
employees, members of management or consultants of the Parent Entity to the
extent such salary, bonuses and other benefits are directly attributable and
reasonably allocated to the operations of the Borrower and its Subsidiaries;


 


(c)   the Borrower may declare and
pay dividends or make other distributions the proceeds of which are used to
purchase or redeem (i) the Equity Interests of any Parent Entity
(including related stock appreciation rights or similar securities) held by
then present or former directors, officers, employees, members of management or
consultants of Holdings, the Borrower or any of its Subsidiaries (or the
estate, heirs, family members, spouse or former spouse of any of the foregoing)
or by any Plan, provided that the aggregate amount of such purchases or
redemptions under this paragraph (c) shall not exceed in any fiscal year
$7.5 million (plus the sum of the


 


83

















 


amount
of (x) net proceeds received by the Borrower during such fiscal year from
sales of Equity Interests of any Parent Entity to directors, officers,
employees, members of management or consultants of Holdings, the Borrower or
any Subsidiary (or the estate, heirs, family members, spouse or former spouse
of any of the foregoing), or any Plan and (y) net proceeds of any key-man
life insurance policies received during such fiscal year), which, if not used
in any year, may be carried forward to the next subsequent fiscal year and (ii) fractional
shares of stock;


 


(d)   the Borrower may make
non-cash repurchases of Equity Interests deemed to occur upon exercise of stock
options or similar Equity Interests if such repurchased Equity Interests
represent a portion of the exercise price of such options;


 


(e)   the Borrower may pay
dividends or make distributions to Holdings in an aggregate amount equal to (i) $35.0 million
plus (ii) the portion, if any, of the Available Basket Amount on
the date of such election that the Borrower elects to apply to this Section 6.06(e)(ii);
provided that, with respect to clause (ii), at the time of such dividend
or distribution and after giving effect thereto and to any borrowing in
connection therewith, the First Lien Leverage Ratio on a Pro Forma Basis does
not exceed 3.00:1.00 and, with respect to both clause (i) and clause (ii),
no Default or Event of Default has occurred and is continuing;


 


(f)    the Borrower and any
Subsidiary may pay dividends or other distributions to any direct or indirect
member of an affiliated group of corporations that files a consolidated U.S.
federal tax return with the Borrower in accordance with the Tax Sharing
Agreement (the “Tax Distributions”), provided that, such Tax
Distributions shall not exceed the amount that the Borrower or the Subsidiaries
would have been required to pay in respect of federal, state or local taxes, as
the case may be, in respect of such year if the Borrower or the Subsidiaries
had paid such taxes directly as a stand-alone taxpayer or stand-alone group;


 


(g)   the Borrower may make
dividends and distributions with the net proceeds of any issuance of Qualified
Capital Stock after the Closing Date; and


 


(h)   to the extent constituting a
dividend and other distribution permitted under this Section 6.06,
the Borrower and its Restricted Subsidiaries may enter into the transactions
expressly permitted by Section 6.05 (other than Section 6.05(e))
or Section 6.07.


 


SECTION 6.07.              Transactions
with Affiliates.  (a)  Sell
or transfer any property or assets to, or purchase or acquire any property or
assets from, or otherwise engage in any other transaction with, any of its
Affiliates, unless such transaction is (i) otherwise permitted (or
required) under this Agreement or (ii) upon terms no less favorable to the
Borrower or such Restricted Subsidiary, as applicable, than would be obtained
in a comparable arm’s-length transaction with a person that is not an
Affiliate; provided that this clause (ii) shall not apply to (A) the
payment to the Permitted Investors of the monitoring and management fees,
transactions fees and expenses permitted under the Management Agreement or (B) the
indemnification of directors, officers, employees, members of management or
consultants of any Parent Entity, the Borrower and its Subsidiaries in
accordance with customary practice.  Any
transaction or series of related transactions involving the payment of less
than $2.0 million with any such Affiliate shall be deemed to have satisfied the
standard set forth in clause (ii) above if such transaction is approved by
a majority of the Disinterested Directors of the board of managers (or
equivalent governing body) of any Parent Entity, the Borrower or such
Restricted Subsidiary.


 


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(b)   The
foregoing paragraph (a) shall not prohibit,


 


(i)   any issuance of securities,
or other payments, awards or grants in cash, securities or otherwise pursuant
to, or the funding of, employment arrangements, stock options and stock
ownership plans approved by the board of directors (or equivalent governing
body) of any Parent Entity,


 


(ii)   loans or advances to
directors, officers, employees, members of management or consultants of
Holdings, the Borrower or any of its Subsidiaries permitted or not prohibited
by Section 6.04,


 


(iii)   transactions among
Holdings, the Borrower and the Subsidiary Loan Parties and transactions among
the Subsidiary Loan Parties otherwise or not prohibited by the Loan Documents,


 


(iv)   the payment of fees and
indemnities to directors, officers, employees, members of management or
consultants of any Parent Entity, the Borrower and its Restricted Subsidiaries
in the ordinary course of business,


 


(v)   transactions pursuant to the
Transaction Documents and permitted agreements in existence on the Closing Date
and set forth on Schedule 6.07 or any amendment thereto to the
extent such amendment is not adverse to the Lenders in any material respect,


 


(vi)   (A) any employment or
severance agreements or arrangements entered into by the Borrower or any of its
Restricted Subsidiaries in the ordinary course of business, (B) any
subscription agreement or similar agreement pertaining to the repurchase of
Equity Interests pursuant to put/call rights or similar rights with employees,
officers, directors, members of management or consultants, and (C) any
employee compensation, benefit plan or arrangement, any health, disability or
similar insurance plan which covers employees, and any reasonable employment
contract or arrangement and transactions pursuant thereto,


 


(vii)   dividends, distributions,
redemptions and repurchases permitted under Section 6.06,


 


(viii)   any purchase by Holdings
of or contributions to, the equity capital of the Borrower; provided
that all Equity Interests of the Borrower shall be pledged to the
Administrative Agent on behalf of the Lenders pursuant to the Collateral
Agreement,


 


(ix)   payments by the Borrower or
any of its Restricted Subsidiaries to the Permitted Investors made for any
financial advisory, financing, underwriting or placement services or in respect
of other investment banking activities, including in connection with
acquisitions or divestitures, which payments are approved by the majority of
the board of directors (or equivalent governing body) of the Borrower, in good
faith,


 


(x)   transactions among the
Borrower and its Restricted Subsidiaries for the purchase or sale of goods,
products, parts and services entered into in the ordinary course of business in
a manner consistent with past practice,


 


(xi)   any transaction in respect
of which the Borrower delivers to the Administrative Agent (for delivery to the
Lenders) a letter addressed to the board of directors (or equivalent governing
body) of the Borrower from an accounting, appraisal or investment banking firm,
in each case of nationally recognized standing that is (A) in the good
faith determination of the


 


85

















 


Borrower qualified to render such letter and (B) reasonably
satisfactory to the Administrative Agent, which letter states that such transaction
is on terms that are no less favorable to the Borrower or such Subsidiary, as
applicable, than would be obtained in a comparable arm’s-length transaction
with a person that is not an Affiliate,


 


(xii)   the payment of all fees,
expenses, bonuses and awards related to the Transactions contemplated by the
Transaction Documents, including fees to the Permitted Investors,


 


(xiii)   Guarantees permitted by Section 6.01,


 


(xiv)   the issuance and sale of
Qualified Capital Stock or Permitted Debt Securities,


 


(xv)   transactions with Joint
Ventures for the purchase or sale of goods and services entered into in the
ordinary course of business,


 


(xvi)   transactions pursuant to
the Tax Sharing Agreement, and


 


(xvii)   the payment of fees and
expenses, and the making of indemnification payments pursuant to, the
Managements Agreements.


 


SECTION 6.08.              Business
of Holdings, the Borrower and the Subsidiaries.  Notwithstanding any other provisions hereof,
engage at any time in any business or business activity other than:


 


(a)   in the case
of Holdings, (A) ownership and acquisition of Equity Interests in the
Borrower, together with activities directly related thereto, (B) performance
of its obligations under and in connection with the Loan Documents, the Second
Lien Loan Documents (and Permitted Refinancing Indebtedness in respect thereof)
and the other agreements contemplated hereby and thereby, (C) actions
incidental to the consummation of the Transactions, (D) the incurrence of
and performance of its obligations related to Indebtedness and Guarantees
incurred by Holdings after the Closing Date and that is related to the other
activities referred to in, or otherwise permitted by, this Section 6.08(a) including
the payment by Holdings of dividends or other distributions in respect of its
Equity Interests including as referred to in clause (F), (E) actions
required by law to maintain its existence, (F) the payment of dividends
and the making of other distributions and taxes, (G) the issuance of
Equity Interests and (H) activities incidental to its maintenance and
continuance and to the foregoing activities, or


 


(b)   in the case
of the Borrower and any Restricted Subsidiary, any business or business
activity conducted by any of them on the Closing Date and any business or
business activities incidental or related thereto, or any business or activity
that is reasonably similar thereto or a reasonable extension, development or
expansion thereof or ancillary thereto.


 


Notwithstanding anything to
the contrary contained in herein, Holdings shall not sell, dispose of, grant a
Lien on or otherwise transfer its Equity Interests in the Borrower (other (i) than
Liens created by the Collateral Documents and the Second Lien Collateral
Documents, (ii) Liens arising by operation of law that would be permitted
under Section 6.02(d) or (iii) the sale, disposition or other
transfer (whether by purchase and sale, merger, consolidation, liquidation or
otherwise) of the Equity Interests of the Borrower to any Parent Entity that
becomes a Loan Party and agrees to be bound by this Section 6.08).


 


SECTION 6.09.              Limitation
on Modifications of Indebtedness; Modifications of Certificate of
Incorporation, By-Laws and Certain Other Agreements; etc.  (a)  Amend or modify in any manner
materially adverse to the Lenders, or grant any waiver or release under or
terminate in any


 


86

















 


manner
(if such granting or termination shall be materially adverse to the Lenders),
the articles or certificate of incorporation or by-laws or limited liability
company operating agreement of Holdings, the Borrower or any of the Subsidiary
Loan Parties, the Management Agreements or the Merger Agreement.


 


(b)   Make, or
agree to make, directly or indirectly, any payment or other distribution
(whether in cash, securities or other property) of or in respect of principal
of or interest on any Second Lien Indebtedness, Permitted Debt Securities or
any Permitted Refinancing Indebtedness in respect thereof, or any payment or
other distribution (whether in cash, securities or other property), including
any sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any Second Lien
Indebtedness, Permitted Debt Securities or any Permitted Refinancing
Indebtedness in respect thereof (except for Refinancings otherwise permitted by
Section 6.01(j) or (o), except for payments of
regularly scheduled interest, and, to the extent this Agreement is then in
effect, principal on the scheduled maturity date thereof; provided, however,
that the Borrower may at any time and from time to time repurchase, redeem,
acquire, cancel or terminate all or any portion of any Second Lien Indebtedness
or Permitted Debt Securities with the cash proceeds of Qualified Capital Stock
issued by the Borrower, so long as such proceeds are not included in any
determination of the Available Basket Amount, and do not constitute a Specified
Equity Contribution the proceeds of which are applied as contemplated by Section 7.02
and provided, further that any Second Lien Indebtedness or any
Permitted Refinancing Indebtedness in respect thereof may be repurchased,
redeemed, retired, acquired, cancelled or terminated so long as (A) immediately
prior to and after giving effect to such repurchase, no Default or Event of
Default shall have occurred or be continuing, (B) the aggregate principal
amount of such repurchases shall not exceed in the aggregate $100.0 million
plus the amount, if any, of Net Proceeds and Excess Cash Flow if the Required
Lenders shall have waived, in accordance with Section 9.08(b) the
application of such Net Proceeds and Excess Cash Flow to the mandatory
prepayment of the Term Loans pursuant to Section 2.11(b) or (c),
as applicable and (C) after giving effect to such repurchase, the First
Lien Leverage Ratio, with respect to clauses (B)(1) and (B)(2) above,
for the most recently completed Test Period calculated on a Pro Forma Basis is
not more than 3.50 to 1.00; or


 


(i)   Amend or modify, or permit
the amendment or modification of, any provision of any Permitted Debt
Securities or any Permitted Refinancing Indebtedness in respect thereof, or any
agreement relating thereto, other than amendments or modifications that are not
materially adverse to Lenders and that do not affect the subordination
provisions thereof (if any) in a manner adverse to the Lenders; or


 


(ii)   Amend or modify, or permit
the amendment or modification of, any provision of the Second Lien Loan
Documents except to the extent not prohibited under the Intercreditor
Agreement.


 


(c)   Permit the
Borrower or any Restricted Subsidiary to enter into any agreement or instrument
that by its terms restricts (i) the payment of dividends or distributions
or the making of cash advances to (or the repayment of cash advances from) the
Borrower or any Restricted Subsidiary or (ii) the granting of Liens
pursuant to the Security Documents, in each case other than those arising under
any Loan Document, except, in each case, restrictions existing by reason of:


 


(A)          restrictions imposed by applicable
law;


 


(B)           contractual encumbrances or
restrictions in effect on the Closing Date (including under the Second Lien
Loan Documents) or contained in any agreements related to any Permitted
Refinancing Indebtedness incurred to Refinance such Indebtedness, or any such
encumbrances or restrictions in any agreements relating to any Permitted Debt
Securities issued after the Closing Date or Permitted Refinancing


 


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Indebtedness in respect
thereof, in each case so long as the scope of such encumbrance or restriction
is no more expansive in any material respect than any such encumbrance or
restriction in effect on the Closing Date (or the date of issuance as the case
may be), or any agreement (regardless of whether such agreement is in effect on
the Closing Date) providing for the subordination of Subordinated Intercompany
Debt;


 


(C)           any restriction on a Subsidiary
imposed pursuant to an agreement entered into for the sale or disposition of
all or substantially all the Equity Interests or assets of such Subsidiary
pending the closing of such sale or disposition;


 


(D)          customary provisions in Joint Venture
agreements and other similar agreements applicable to Joint Ventures entered
into in the ordinary course of business;


 


(E)           any restrictions imposed by any
agreement relating to secured Indebtedness permitted by this Agreement to the
extent that such restrictions apply only to the property or assets securing
such Indebtedness;


 


(F)           customary provisions contained in
leases, subleases, licenses or sublicenses of intellectual property and other
similar agreements entered into in the ordinary course of business;


 


(G)           customary provisions restricting
subletting or assignment of any lease governing a leasehold interest;


 


(H)          customary provisions restricting
assignment of any agreement entered into in the ordinary course of business;


 


(I)            customary restrictions and
conditions contained in any agreement relating to the sale of any asset or
person permitted under Section 6.05 pending the consummation of
such sale;


 


(J)            customary restrictions and
conditions contained in the document relating to any Lien, so long as (1) such
Lien is permitted under Section 6.02 and such restrictions or
conditions relate only to the specific asset subject to such Lien and the
proceeds and products thereof, and (2) such restrictions and conditions
are not created for the purpose of avoiding the restrictions imposed by this Section 6.09;


 


(K)          customary net worth provisions
contained in real property leases entered into by Subsidiaries of the Borrower,
so long as the Borrower has determined in good faith that such net worth
provisions could not reasonably be expected to impair the ability of the
Borrower and its Subsidiaries to meet their ongoing obligations;


 


(L)           any agreement in effect at the time
such person becomes a Restricted Subsidiary, so long as such agreement was not
entered into in contemplation of such person becoming a Restricted Subsidiary;
or


 


(M)         restrictions contained in any documents
documenting Indebtedness of any Foreign Subsidiary permitted hereunder.


 


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SECTION 6.10.              Total
Leverage Ratio.  Permit the Total
Leverage Ratio for any Test Period ending on the last day of any fiscal quarter
occurring in any period set forth below, to be in excess of the ratio set forth
below for such period.


 


	
  Period

  	
   

  	
  Ratio

  	
   

  
	
  October 1, 2007 to December 31, 2007

  	
   

  	
  8.75 to 1.00

  	
   

  
	
  January 1, 2008 to March 31, 2008

  	
   

  	
  8.75 to 1.00

  	
   

  
	
  April 1, 2008 to June 30, 2008

  	
   

  	
  8.50 to 1.00

  	
   

  
	
  July 1, 2008 to September 30, 2008

  	
   

  	
  8.25 to 1.00

  	
   

  
	
  October 1, 2008 to December 31, 2008

  	
   

  	
  7.75 to 1.00

  	
   

  
	
  January 1, 2009 to March 31, 2009

  	
   

  	
  7.75 to 1.00

  	
   

  
	
  April 1, 2009 to June 30, 2009

  	
   

  	
  7.50 to 1.00

  	
   

  
	
  July 10, 2009 to September 30, 2009

  	
   

  	
  7.25 to 1.00

  	
   

  
	
  October 1, 2009 to December 31, 2009

  	
   

  	
  6.75 to 1.00

  	
   

  
	
  January 1, 2010 to March 31, 2010

  	
   

  	
  6.75 to 1.00

  	
   

  
	
  April 1, 2010 to June 30, 2010

  	
   

  	
  6.50 to 1.00

  	
   

  
	
  July 1, 2010 to September 30, 2010

  	
   

  	
  6.25 to 1.00

  	
   

  
	
  October 1, 2010 to December 31, 2010

  	
   

  	
  5.75 to 1.00

  	
   

  
	
  January 1, 2011 to March 31, 2011

  	
   

  	
  5.75 to 1.00

  	
   

  
	
  April 1, 2011 to June 30, 2011

  	
   

  	
  5.50 to 1.00

  	
   

  
	
  July 1, 2011 to September 30, 2011

  	
   

  	
  5.25 to 1.00

  	
   

  
	
  Thereafter

  	
   

  	
  4.75 to 1.00

  	
   

  



 


If the Borrower or a
Restricted Subsidiary intends to take any Restricted Action prior to the date
on which the Borrower first would be required to deliver a compliance
certificate pursuant to Section 5.04(a), then, for purposes of
determining compliance with the Total Leverage Ratio, the applicable Total
Leverage Ratio shall be 8.75:1.00 and EBITDA shall be measured for the most
recent four fiscal quarter period for which quarterly financial statements are
available.


 


SECTION 6.11.              Swap
Agreements.  Enter into any Swap
Agreement, other than (a) Swap Agreements entered into in the ordinary
course of business (and not for speculative purposes) to hedge or mitigate
risks to which the Borrower or any Subsidiary is exposed in the conduct of its
business or the management of its liabilities (including, without limitation,
raw material, supply costs and currency risks), and (b) Swap Agreements
entered into in order to effectively cap, collar or exchange interest rates
(from fixed to floating rates, from one floating rate to another floating rate
or otherwise) with respect to any interest-bearing liability or investment of
the Borrower or any Subsidiary (and not for speculative purposes).


 


SECTION 6.12.              Capital
Expenditures.  Make or commit to make
any Capital Expenditure, except Capital Expenditures of the Borrower and its
Restricted Subsidiaries in the ordinary course of business not exceeding (a) for
the period from the Closing Date to December 31, 2006, $15 million; and
for each fiscal year thereafter $30 million plus (b) plus the average
Capital Expenditures of any person acquired in connection with a Permitted
Business Acquisition for three fiscal years immediately preceding such
Permitted Business Acquisition multiplied by 1.25.  Notwithstanding anything to the contrary in
the preceding sentence, (a) to the extent that the aggregate amount of
Capital Expenditures made by the Borrower and its Restricted Subsidiaries in
any fiscal year pursuant to the preceding sentence is less than the amount
permitted for such fiscal year, the amount of the difference may be carried
forward and used to make Capital Expenditures in the immediately succeeding
fiscal year (the “Carryforward Amount”) and (b) if the aggregate
amount of Capital Expenditures made by the Borrower and its Restricted
Subsidiaries in any fiscal year is greater than the amount otherwise available


 


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for Capital Expenditures in such fiscal year (including the
Carryforward Amount), an amount up to 100% of the amount otherwise available in
the immediately succeeding fiscal year pursuant to the preceding sentence may
be reallocated to such current fiscal year so long as the base amount of
Capital Expenditures permitted in the preceding sentence during the next
succeeding fiscal year shall be reduced by such amount carried back.


 


ARTICLE
VII


 


Events
of Default


 


SECTION 7.01.              Events
of Default.  In case of the happening
of any of the following events (each, an “Event of Default”):


 


(a)   any representation or
warranty made or deemed made by Holdings, the Borrower or any other Loan Party
in any Loan Document, or in any certificate or other instrument furnished in
connection with or pursuant to any Loan Document, shall prove to have been
false or misleading in any material respect when so made, deemed made pursuant
to the terms of the Loan Documents or furnished by Holdings, the Borrower or
any other Loan Party;


 


(b)   default shall be made in the
payment of any principal of any Loan or the reimbursement with respect to any
L/C Disbursement when and as the same shall become due and payable, whether at
the due date thereof or at a date fixed for prepayment thereof or by
acceleration thereof or otherwise;


 


(c)   default shall be made in the
payment of any interest on any Loan or on any L/C Disbursement or in the
payment of any Fee or any other amount (other than an amount referred to in
paragraph (b) above) due under any Loan Document, when and as the same
shall become due and payable, and such default shall continue unremedied for a
period of five Business Days;


 


(d)   default shall be made in the
due observance or performance by Holdings, the Borrower or any of its
Restricted Subsidiaries of any covenant, condition or agreement contained in Section 5.01(a) (with
respect to Holdings or the Borrower), 5.05(a) or in Article VI;


 


(e)   default shall be made in the
due observance or performance by Holdings, the Borrower or any of its
Restricted Subsidiaries of any covenant, condition or agreement contained in
any Loan Document (other than those specified in paragraphs (b), (c) and (d) above)
and such default shall continue unremedied for a period of 30 days after notice
thereof from the Administrative Agent or the Required Lenders to the Borrower;


 


(f)    (i) any event or
condition occurs that (A) results in the Second Lien Indebtedness or any
other Indebtedness in excess of $25 million becoming due prior to its scheduled
maturity or (B) enables or permits (with all applicable grace periods
having expired) the holder or holders of Second Lien Indebtedness or any other
Indebtedness in excess of $25 million or any trustee or agent on its or their
behalf to cause any Second Lien Indebtedness or any other Indebtedness in
excess of $25 million to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity or (ii) Holdings,
the Borrower or any of its Restricted Subsidiaries shall fail to pay the
principal of any Indebtedness in excess of $25 million at the stated final
maturity thereof; provided that this paragraph (f) shall not apply
to secured Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness if such sale or
transfer is permitted hereunder;


 


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(g)   there shall have occurred a
Change in Control;


 


(h)   an involuntary proceeding
shall be commenced or an involuntary petition shall be filed in a court of
competent jurisdiction seeking (i) relief in respect of Holdings, the
Borrower or any of its Restricted Subsidiaries, or of a substantial part of the
property or assets of Holdings, the Borrower or any Restricted Subsidiary,
under Title 11 of the United States Code, as now constituted or hereafter
amended, or any other federal, state or foreign bankruptcy, insolvency,
receivership or similar law, (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for Holdings, the
Borrower or any of its Restricted Subsidiaries or for a substantial part of the
property or assets of Holdings, the Borrower or any of its Restricted
Subsidiaries or (iii) the winding-up or liquidation of Holdings, the
Borrower or any Restricted Subsidiary (except, in the case of any Restricted
Subsidiary, in a transaction permitted by Section 6.05); and such
proceeding or petition shall continue undismissed for 60 days or an order or
decree approving or ordering any of the foregoing shall be entered;


 


(i)    Holdings, the Borrower or
any Restricted Subsidiary shall (i) voluntarily commence any proceeding or
file any petition seeking relief under Title 11 of the United States Code, as
now constituted or hereafter amended, or any other federal, state or foreign
bankruptcy, insolvency, receivership or similar law, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or the filing of any petition described in paragraph (h) above,
(iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for Holdings, the
Borrower or any of its Restricted Subsidiaries or for a substantial part of the
property or assets of Holdings, the Borrower or any Restricted Subsidiary, (iv) file
an answer admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) become unable or admit in writing its inability or fail
generally to pay its debts as they become due;


 


(j)    the failure by Holdings,
the Borrower or any Restricted Subsidiary to pay one or more final judgments
aggregating in excess of $25.0 million (to the extent not covered by
third-party insurance as to which the insurer has been notified of such
judgment and does not deny coverage), which judgments are not discharged or
effectively waived or stayed for a period of 60 consecutive days, or any action
shall be legally taken by a judgment creditor to levy upon assets or properties
of Holdings, the Borrower or any Restricted Subsidiary to enforce any such
judgment;


 


(k)   (i) a Reportable Event
or Reportable Events shall have occurred with respect to any Plan or a trustee
shall be appointed by a United States district court to administer any Plan, (ii) the
PBGC shall institute proceedings (including giving notice of intent thereof) to
terminate any Plan or Plans, (iii) Holdings, the Borrower or any
Restricted Subsidiary or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that it has incurred or will be assessed
Withdrawal Liability to such Multiemployer Plan and such person does not have
reasonable grounds for contesting such Withdrawal Liability or is not
contesting such Withdrawal Liability in a timely and appropriate manner, (iv) Holdings,
the Borrower or any Restricted Subsidiary or any ERISA Affiliate shall have
been notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of Title
IV of ERISA or (v) Holdings, the Borrower or any Restricted Subsidiary
shall engage in any “prohibited transaction” (as defined in Section 406
of ERISA or Section 4975 of the Code) involving any Plan; and in
each case in clauses (i) through (v) above, such event or condition,
together with all other such events or conditions, if any, could reasonably be
expected to have a Material Adverse Effect; or


 


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(l)    (i) any Loan Document
shall for any reason cease to be, or shall be asserted in writing by Holdings,
the Borrower or any Restricted Subsidiary not to be, a legal, valid and binding
obligation of any party thereto, (ii) any security interest purported to
be created by any Security Document and to extend to assets that are not
immaterial to Holdings, the Borrower and the Restricted Subsidiaries on a
consolidated basis shall cease to be, or shall be asserted in writing by
Holdings, the Borrower or any other Loan Party not to be (other than in a
notice to the Administrative Agent to take requisite actions to perfect such Lien),
a valid and perfected security interest (perfected as and having the priority
required by this Agreement or the relevant Security Document and subject to
such limitations and restrictions as are set forth herein and therein) in the
securities, assets or properties covered thereby, except to the extent (x) any
such loss of perfection or priority results from the failure of the
Administrative Agent to maintain possession of certificates actually delivered
to it representing securities pledged under the Collateral Agreement, (y) such
loss is covered by a lender’s title insurance policy as to which the insurer
has been notified of such loss and does not deny coverage and the
Administrative Agent shall be reasonably satisfied with the credit of such
insurer or (z) such loss of perfected security interest may be remedied by
the filing of appropriate documentation without the loss of priority, (iii) the
Guarantees pursuant to the Security Documents by Holdings, the Borrower or the
Subsidiary Loan Parties of any of the Obligations shall cease to be in full
force and effect (other than in accordance with the terms thereof), or shall be
asserted in writing by Holdings or the Borrower or any Subsidiary Loan Party
not to be in effect or not to be legal, valid and binding obligations, (iv) the
Obligations of the Borrower or the Guarantees pursuant to the Security
Documents by Holdings, the Borrower or the Subsidiary Loan Parties shall cease
to constitute senior indebtedness under the subordination provisions of any indenture
or other instruments, agreements and documents evidencing or governing any
Permitted Debt Securities in excess of $25 million or such subordination
provisions shall be invalidated or otherwise cease (in each case so long as
such indenture, instrument, agreement or document is then in effect), or shall
be asserted in writing by Holdings, the Borrower or any Subsidiary Loan Party
to be invalid or to cease to be legal, valid and binding obligations of the
parties thereto, enforceable in accordance with their terms or (v) the
Liens of the administrative agent under the Second Lien Loan Documents (for the
benefit of the Secured Parties (as defined in the Second Lien Collateral
Documents)) shall cease to be subordinated under the subordination provisions
of the Intercreditor Agreement, or such subordination provisions shall be
invalidated or otherwise cease (in each case so long as the Second Lien Loan
Documents are in effect), or shall be asserted in writing by Holdings, the
Borrower or any Subsidiary Loan Party to be invalid or to cease to be legal,
valid and binding obligations of the parties thereto, enforceable in accordance
with their terms;


 


then, and in every such
event (other than an event with respect to the Borrower described in
paragraph (h) or (i)(i), (ii), (iii) or (iv) above), and at
any time thereafter during the continuance of such event, the Administrative
Agent may, and at the request of the Required Lenders shall, upon notice to the
Borrower, take any or all of the following actions, at the same or different
times:  (i) terminate forthwith the
Commitments, (ii) declare the Loans then outstanding to be forthwith due
and payable in whole or in part, whereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and any
unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder
and under any other Loan Document, shall become forthwith due and payable,
without presentment, demand, protest or any other notice of any kind, all of which
are hereby expressly waived by the Borrower, anything contained herein or in
any other Loan Document to the contrary notwithstanding and (iii) if the
Loans have been declared due and payable pursuant to clause (ii) above,
demand cash collateral pursuant to Section 2.05(j); and in any
event with respect to the Borrower described in paragraph (h) or
(i)(i), (ii), (iii) or (iv) above, the Commitments shall
automatically terminate, the principal of the Loans then outstanding, together
with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the


 


92

















 


Borrower accrued hereunder
and under any other Loan Document, shall automatically become due and payable
and the Administrative Agent shall be deemed to have made a demand for cash
collateral to the full extent permitted under Section 2.05(j),
without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived by the Borrower, anything contained herein or
in any other Loan Document to the contrary notwithstanding.


 


SECTION 7.02.              Holdings’s
Right to Cure.


 


(a)  
Notwithstanding anything to the contrary contained in Section 7.01,
in the event that the Borrower fails (or, but for the operation of this Section 7.02,
would fail) to comply with the requirements of the Total Leverage Ratio, until
the expiration of the 20th day subsequent to the date the certificate
calculating the Total Leverage Ratio is required to be delivered pursuant to Section 5.04(c),
the Borrower shall have the right to issue Qualified Capital Stock for cash
(the “Cure Right”), and upon the receipt by the Borrower of such cash
(the “Specified Equity Contribution”) the Total Leverage Ratio shall be
recalculated giving effect to the following pro forma
adjustments:


 


(i)   EBITDA shall be increased,
solely for the purpose of determining compliance with Section 6.10
and not for any other purpose under this Agreement (including taking any
Restricted Action), by an amount equal to the Specified Equity Contribution;
and


 


(ii)   if, after giving effect to
the foregoing recalculations, the Borrower shall then be in compliance with the
requirements of the Total Leverage Ratio, the Borrower shall be deemed to have
satisfied the requirements of the Total Leverage Ratio as of the relevant date
of determination with the same effect as though there had been no failure to
comply therewith at such date, and the applicable breach or default of the
Total Leverage Ratio that had occurred shall be deemed cured for this purposes
of this Agreement.


 


(b)  
Notwithstanding anything herein to the contrary, (i) in each
four-fiscal-quarter period there shall be at least one fiscal quarter with
respect to which the Cure Right is not exercised, (ii) in each eight
fiscal quarter period, there shall be a period of at least four consecutive
fiscal quarters with respect to which the Cure Right is not exercised and (iii) the
Specified Equity Contribution shall be no greater than the amount required for
purposes of complying with the Total Leverage Ratio.


 


ARTICLE
VIII


 


The
Agents


 


SECTION 8.01.              Appointment.  Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental
thereto.  Notwithstanding any provision
to the contrary elsewhere in this Agreement, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein,
or any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.  Without limiting
the generality of the foregoing, the Agents are hereby expressly authorized to
execute any and all documents (including releases) with respect to the
Collateral and the rights of the Secured Parties with respect thereto, as
contemplated by and in accordance with the provisions of this Agreement and the
Security Documents.


 


93

















 


SECTION 8.02.              Delegation
of Duties.  The Administrative Agent
may execute any of its duties under this Agreement and the other Loan Documents
by or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties.  The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.


 


SECTION 8.03.              Exculpatory
Provisions.  The Agents shall not
have any duties or obligations except those expressly set forth in the Loan
Documents.  Neither any Agent nor any of
their respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to
be taken by it or such person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found
by a final and nonappealable decision of a court of competent jurisdiction to
have resulted from its or such person’s own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Lenders for
(or have any duty to ascertain or acquire into) any recitals, statements,
representations or warranties made by any Loan Party or any officer thereof
contained in this Agreement or any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Agents under or in connection with, this Agreement or any other Loan
Document or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document or for any failure
of any Loan Party a party thereto to perform its obligations hereunder or
thereunder.  The Agents shall not (x) be
subject to any fiduciary or other implied duties regardless of whether a
Default has occurred and is continuing and (y) except as expressly set
forth in the Loan Documents, have any duty to disclose, nor shall it be liable
for the failure to disclose, any information relating to Holdings, the Borrower
or any Subsidiary that is communicated to or obtained by the bank serving as
Administrative Agent or any of its affiliates in any capacity.  The Agents shall not be under any obligation
to any Lender to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of any Loan
Party.


 


SECTION 8.04.              Reliance
by Administrative Agent.  The
Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any instrument, writing, resolution, notice, consent,
certificate, affidavit, letter, fax, telex or teletype message, statement,
order or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper person or persons
and upon advice and statements of legal counsel (including counsel to Holdings
or the Borrower), independent accountants and other experts selected by the
Administrative Agent.  The Administrative
Agent may deem and treat the payee of any Note as the owner thereof for all
purposes unless a written notice of assignment, negotiation or transfer thereof
shall have been filed with the Administrative Agent.  The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or concurrence of
the Required Lenders (or, if so specified by this Agreement, all Lenders) as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense that may be incurred by it by
reason of taking or continuing to take any such action.  The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this
Agreement and the other Loan Documents in accordance with a request of the
Required Lenders (or, if so specified by this Agreement, all Lenders), and such
request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the Loans.


 


SECTION 8.05.              Notice
of Default.  The Administrative Agent
shall not be deemed to have knowledge or notice of the occurrence of any
Default or Event of Default unless the Administrative Agent has received notice
from a Lender, Holdings or the Borrower referring to this Agreement, describing
such Default or Event of Default and stating that such notice is a “notice of
default”.  In the event that the
Administrative Agent receives such a notice, the Administrative Agent


 


94

















 


shall
give notice thereof to the Lenders.  The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders (or,
if so specified by this Agreement, all Lenders); provided that unless
and until the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders.


 


SECTION 8.06.              Non-Reliance
on Agents and Other Lenders.  Each
Lender expressly acknowledges that neither the Agents nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates have made any representations or warranties to it and that no act by
any Agent hereafter taken, including any review of the affairs of a Loan Party
or any affiliate of a Loan Party, shall be deemed to constitute any
representation or warranty by any Agent to any Lender.  Each Lender represents to the Agents that it
has, independently and without reliance upon any Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and
their affiliates and made its own decision to make its Loans hereunder and
enter into this Agreement.  Each Lender
also represents that it will, independently and without reliance upon any Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement
and the other Loan Documents, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property, financial
and other condition and creditworthiness of the Loan Parties and their
affiliates.  Except for notices, reports
and other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of any Loan Party or any affiliate
of a Loan Party that may come into the possession of the Administrative Agent
or any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.


 


SECTION 8.07.              Indemnification.  The Lenders agree to indemnify each Agent in
its capacity as such (to the extent not reimbursed by Holdings or the Borrower
and without limiting the obligation of Holdings or the Borrower to do so), each
in an amount equal to its pro rata share (based on its
Commitments hereunder (or if such Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of its
applicable outstanding Loans or participations in L/C Disbursements, as applicable))
thereof, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever that may at any time (whether before or after the
payment of the Loans) be imposed on, incurred by or asserted against such Agent
in any way relating to or arising out of, the Commitments, this Agreement, any
of the other Loan Documents or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by such Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements that are found by a
final and nonappealable decision of a court of competent jurisdiction to have
resulted from such Agent’s gross negligence or willful misconduct.  The agreements in this Section shall
survive the payment of the Loans and all other amounts payable hereunder.


 


SECTION 8.08.              Agent
in Its Individual Capacity.  Each
Agent and its affiliates may make loans to, accept deposits from and generally
engage in any kind of business with any Loan Party as though such Agent were
not an Agent.  With respect to its Loans
made or renewed by it and with respect to any Letter of Credit issued or
participated in by it, each Agent shall have the same rights and powers under
this Agreement and the other Loan Documents as any Lender and may exercise the
same as though


 


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it
were not an Agent, and the terms “Lender” and “Lenders” shall include each
Agent in its individual capacity.


 


SECTION 8.09.              Successor
Administrative Agent.  The
Administrative Agent may resign as Administrative Agent upon 30 days’ notice to
the Lenders and the Borrower.  If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from
among the Lenders a successor agent for the Lenders, which successor agent
shall (unless an Event of Default under Sections 7.01 (h) or (i)(i),
(ii), (iii) or (iv) above shall have occurred and be continuing)
be subject to approval by the Borrower (which approval shall not be
unreasonably withheld or delayed), whereupon such successor agent shall succeed
to the rights, powers and duties of the Administrative Agent, and the term “Administrative
Agent” shall mean such successor agent effective upon such appointment and
approval, and the former Administrative Agent’s rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement or any holders of the Loans. 
If no successor agent has accepted appointment as Administrative Agent
by the date that is 30 days following a retiring Administrative Agent’s notice
of resignation, the retiring Administrative Agent’s resignation shall
nevertheless thereupon become effective, and the Lenders shall assume and
perform all of the duties of the Administrative Agent hereunder until such
time, if any, as the Required Lenders appoint a successor agent as provided for
above; provided that nothing herein shall require that the
Administrative Agent resign or retire from its role as collateral agent under
any Security Document whether referred to therein as administrative agent,
collateral agent or any analogous term therein. 
After any retiring Administrative Agent’s resignation as Administrative
Agent, the provisions of this Article VIII shall inure to its
benefit and to the benefit of its officers, directors, employees, agents,
attorneys-in-fact and affiliates as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Agreement and the other Loan
Documents.


 


SECTION 8.10.              Syndication
Agent and Documentation Agent.  Neither the Syndication Agent nor the
Documentation Agent shall have any duties or responsibilities hereunder in its
capacity as such.


 


SECTION 8.11.              Withholding
Tax.  To the extent required by any
applicable law, the Administrative Agent may withhold from any interest payment
to any Lender an amount equivalent to any applicable withholding tax.  If the Internal Revenue Service or any other
Governmental Authority asserts a claim that the Administrative Agent did not
properly withhold tax from amounts paid to or for the account of any Lender
because the appropriate form was not delivered or was not properly executed or
because such Lender failed to notify the Administrative Agent of a change in
circumstance which rendered the exemption from, or reduction of, withholding
tax ineffective or for any other reason, such Lender shall indemnify the
Administrative Agent fully for all amounts paid, directly or indirectly, by the
Administrative Agent as tax or otherwise, including any penalties or interest
and together with all expenses (including legal expenses, allocated internal
costs and out-of-pocket expenses) incurred.


 


SECTION 8.12.              Co-Collateral
Agent; Separate Collateral Agent.


 


(a)     At any
time or from time to time, in order to comply with any applicable requirement
of law, the Administrative Agent may appoint another bank or trust company or
one or more other persons, either to act as co-agent or agents on behalf of the
Administrative Agent and the other Secured Parties with such power and
authority as may be necessary for the effectual operation of the provisions
hereof and which may be specified in the instrument of appointment (which may,
in the discretion of the Administrative Agent, include provisions for
indemnification and similar protections of such co-agent or separate agent
substantially the same as those contained herein). Each of the Borrower,
for itself and on behalf of each Grantor (as defined in the Collateral
Agreement), and each other party


 


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hereto, accepts the appointment of Goldman
Sachs Specialty Lending Group, L.P, as sub-collateral agent and mortgagee under
each of the Mortgages.  Notwithstanding
anything to the contrary contained herein, every such agent, sub-collateral
agent and every co-agent shall, to the extent permitted by law, be appointed
and act and be such, subject to the condition that no power given hereby, or
which is provided herein or in any other Loan Document to any such co- agent,
sub-collateral agent or agent shall be exercised hereunder or thereunder by
such co- agent or agent except jointly with, or with the consent in writing of,
the Administrative Agent.


 


ARTICLE
IX


 


Miscellaneous


 


SECTION 9.01.              Notices.  (a)  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 fax, as follows:


 


(i)   if to any Loan Party, to
Generac Power Systems, Inc., Highway 59 and Hillside Road, P.O. Box
8, Waukesha Wisconsin, 53187, attention Aaron Jagdfeld, York Ragen and Joseph
Kavalary, Telecopier: (262) 968-9372, with a copy to GPS CCMP Merger
Corp. c/o CCMP Capital Advisors, LLC, 245 Park Avenue, 16th Floor, New York, NY, 10167-2403, attention:
Stephen McKenna, Telecopier: (212) xxx-xxxx, with a copy to Weil, Gotshal &
Manges LLP, 200 Crescent Court, Suite 300, Dallas, Texas 75201-6950,
Attention Angela L. Fontana, Telecopier: (214) 746-7777;


 


(ii)   if to the Administrative
Agent, to Goldman Sachs Credit Partners L.P., c/o Goldman, Sachs &
Co., 30 Hudson Street, 17th Floor, Jersey City, NJ 07302,
Attention: SBD Operations, Attention: Pedro Ramirez, Telecopier: (212)
357-4597, with a copy to Goldman Sachs Credit Partners L.P., 1 New York Plaza,
New York, NY 10004, Attention: Rob Schatzman, Telecopier: (212) 902-3000.


 


(iii)   if to an Issuing Bank, to
it at the address or fax number set forth separately in writing.


 


(iv)   if to a Lender, to it at the
address or fax number set forth on Schedule 2.01 or in the Assignment
and Acceptance pursuant to which such Lender becomes a party hereto.


 


(b)   Notices and
other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative
Agent; provided that the foregoing shall not apply to notices pursuant
to Article II unless otherwise agreed by the Administrative Agent
and the applicable Lender.  Each of the
Administrative Agent and 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, further, that
approval of such procedures may be limited to particular notices or
communications.


 


(c)   All notices
and other communications given to any party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given on the date of
receipt if delivered by hand or overnight courier service, sent by fax or (to
the extent permitted by paragraph (b) above) electronic means or on
the date five Business Days after dispatch by certified or registered mail if
mailed, in each case delivered, sent or mailed (properly addressed) to such
party as provided in this Section 9.01 or in accordance with the
latest unrevoked direction from such party given in accordance with this Section 9.01.


 


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(d)   Any party
hereto may change its address or fax number for notices and other
communications hereunder by notice to the other parties hereto.


 


SECTION 9.02.              Survival
of Agreement.  All representations
and warranties made by the Loan Parties herein and in the other Loan Documents
shall be considered to have been relied upon by the Lenders and each Issuing
Bank and shall survive the making of the Loans, the execution and delivery of
the Loan Documents and the issuance of the Letters of Credit, and shall
continue in full force and effect as long as the principal of or any accrued
interest on any Loan or L/C Disbursement or any Fee or any other amount (other
than obligations for taxes, costs, indemnifications, reimbursements, damages
and other contingent liabilities in respect of which no claim or demand for
payment has been made or, in the case of indemnifications, no notice has been
given (or reasonably satisfactory arrangements have otherwise been made))
payable under this Agreement or any other Loan Document is outstanding and
unpaid or any Letter of Credit is outstanding and so long as the Commitments
have not been terminated.  Without
prejudice to the survival of any other agreements contained herein, obligations
for taxes, costs, indemnifications, reimbursements, damages and other
contingent liabilities contained herein (including pursuant to Sections 2.15,
2.17 and 9.05) shall survive the payment in full of the principal
and interest hereunder, the expiration of the Letters of Credit, the
termination of the Commitments or this Agreement limited in the manner set
forth herein, or the invalidity or unenforceability of any term or provision of
this Agreement or any other Loan Document.


 


SECTION 9.03.              Binding
Effect.  This Agreement shall become
effective when it shall have been executed by Holdings, the Borrower and the
Administrative Agent and when the Administrative Agent shall have received
copies hereof which, when taken together, bear the signatures of each of the
other parties hereto, and thereafter shall be binding upon and inure to the
benefit of Holdings, the Borrower, each Issuing Bank, the Administrative Agent
and each Lender and their respective permitted successors and assigns.


 


SECTION 9.04.              Successors
and Assigns.  (a)  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
(including any Affiliate of the Issuing Bank that issues any Letter of Credit),
except that (i) the Borrower may not assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by the Borrower without such
consent shall be null and void) and (ii) no Lender may assign or otherwise
transfer its rights or obligations hereunder except in accordance with this Section 9.04.  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 (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), Participants
(to the extent provided in paragraph (c) of this Section 9.04),
and, to the extent expressly contemplated hereby, the Related Parties of each
of the Agents, the Issuing Bank and the Lenders) any legal or equitable right,
remedy or claim under or by reason of this Agreement.


 


(b)   (i)    Subject to the conditions set forth in clause
(ii) below, any Lender may assign to one or more Eligible Assignees (other
than to any Disqualified Institution) all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitments
and the Loans at the time owing to it) (provided, however, that pro rata
assignments shall not be required and each assignment shall be of a uniform,
and not varying, percentage of all rights and obligations under and in respect
of any applicable Loan and any related Commitments) with the prior written
consent (such consent not to be unreasonably withheld or delayed) of:


 


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(A)          the Borrower, provided that no
consent of the Borrower shall be required for an assignment to an Affiliate of
a Lender, or if an Event of Default under Section 7.01(b), (c),
(h) or (i)(i), (ii), (iii) or (iv) has
occurred and is continuing; and


 


(B)           in the case of the Revolving
Facility, the Issuing Bank and the Swingline Lender.


 


(ii)   Assignments shall be subject
to the following additional conditions:


 


(A)          except in the case of an assignment to
a Lender, an affiliate of a Lender or an Related Fund or an assignment of the
entire remaining amount of the assigning Lender’s Commitments or Loans under
any Facility, the amount of the Commitments or Loans of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $1.0 million in the case of Term Loans, and not
less than $5.0 million in the case of Revolving Facility Loans or Revolving
Facility Commitments, unless each of the Borrower and the Administrative Agent
otherwise consent, provided that (1) no such consent of the
Borrower shall be required if an Event of Default under Section 7.01(b),
(c), (h) or (i)(i), (ii), (iii) or (iv) has
occurred and is continuing and (2) such amounts shall be aggregated in
respect of each Lender and its Affiliates or Related Funds, if any.


 


(B)           the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Acceptance
together with a processing and recordation fee of $3,500; and


 


(C)           the Eligible Assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire and all applicable tax forms.


 


(iii)   Subject to acceptance and
recording thereof pursuant to clause (b)(v) below, from and after the
effective date specified in each Assignment and Acceptance the Eligible
Assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of
a Lender under this Agreement, and the assigning Lender thereunder shall, to
the extent of the interest assigned by such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance 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 2.15, 2.16,
2.17 and 9.05, as well as any Fees accrued for its account and
not yet paid).  Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does
not comply with this Section 9.04 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 paragraph (c) of this Section 9.04.


 


(iv)   The Administrative Agent,
acting for this purpose as an agent of the Borrower, shall maintain at one of
its offices a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amount of the Loans and Revolving L/C Exposure
owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive absent manifest error, and the Borrower, the Administrative Agent,
the Issuing Bank 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


 


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the contrary.  The Register shall
be available for inspection by the Borrower, the Issuing Bank and any Lender
(with respect to any entry related to such Lender’s Loans), at any reasonable
time and from time to time upon reasonable prior notice.


 


(v)   Upon its receipt of a duly
completed Assignment and Acceptance executed by an assigning Lender and an
Eligible Assignee, the Eligible Assignee’s completed Administrative
Questionnaire (unless the Eligible Assignee shall already be a Lender
hereunder) and any applicable tax forms, and any written consent to such
assignment required by clause (i) above, the Administrative Agent shall
accept such Assignment and Acceptance and record the information contained
therein in the Register.  No assignment,
whether or not evidenced by a promissory note, shall be effective for purposes
of this Agreement unless it has been recorded in the Register as provided in
this clause (v).


 


(c)   (i)    Any Lender may, without the consent of the
Borrower, the Swingline Lender, the Issuing Bank or the Administrative Agent,
sell participations to one or more banks or other entities (other than to any
Company Competitor) (a “Participant”) in all or a portion of such Lender’s
rights and obligations under this Agreement (including all or a portion of its
Commitments and the Loans owing to it); provided that (A) such
Lender’s obligations under this Agreement shall remain unchanged, (B) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (C) the Borrower, the Administrative
Agent, the Issuing Bank and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement.  Any
agreement pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and the
other Loan Documents and to approve any amendment, modification or waiver of
any provision of this Agreement and the other Loan Documents; provided
that such agreement may provide that such Lender will not, without the consent
of the Participant, agree to any amendment, modification or waiver that
requires the consent of each Lender directly affected thereby pursuant to Section 9.04(a)(i) or
clauses (i), (ii), (iii) or (vi) of the
first proviso to Section 9.08(b). 
Subject to paragraph (c)(ii) of this Section 9.04,
the Borrower agrees that each Participant shall be entitled to the benefits of Sections
2.15, 2.16 and 2.17 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to paragraph (b) of
this Section 9.04.  To the
extent permitted by law, each Participant also shall be entitled to the benefits
of Section 9.06 as though it were a Lender, provided such
Participant shall be subject to Section 2.18(c) as though it
were a Lender.


 


(ii)   A Participant shall not be
entitled to receive any greater payment under Section 2.15, 2.16 or
2.17 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 expressly acknowledging such Participant may receive a greater
benefit.  A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.17
to the extent such Participant fails to comply with Section 2.17(e) as
though it were a Lender.


 


(d)   Any Lender
may at any time, without the consent of or notice to the Administrative Agent
or the Borrower, pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including
any pledge or assignment to secure obligations to a Federal Reserve Bank, and
this Section 9.04 shall not apply to any such pledge or assignment
of a security interest; provided that no such pledge or assignment of a
security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or Eligible Assignee for such Lender as a party
hereto.


 


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(e)   The
Borrower, upon receipt of written notice from the relevant Lender, agrees to
issue Notes to any Lender requiring Notes to facilitate transactions of the
type described in paragraph (d) above.


 


(f)  
Notwithstanding the foregoing, any Conduit Lender may assign any or all of the
Loans it may have funded hereunder to its designating Lender without the
consent of the Borrower or the Administrative Agent.  Each of Holdings, the Borrower, each Lender
and the Administrative Agent hereby confirms that it will not institute against
a Conduit Lender or join any other person in instituting against a Conduit
Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding under any state bankruptcy or similar law, for one year and one day
after the payment in full of the latest maturing commercial paper note issued
by such Conduit Lender; provided, however, that each Lender
designating any Conduit Lender hereby agrees to indemnify, save and hold
harmless each other party hereto and each Loan Party for any loss, cost, damage
or expense arising out of its inability to institute such a proceeding against
such Conduit Lender during such period of forbearance.


 


(g)   If the
Borrower wishes to replace the Loans or Commitments under any Facility with
ones having different terms, it shall have the option, with the consent of the
Administrative Agent and subject to at least three Business Days’ advance
notice to the Lenders under such Facility, instead of prepaying the Loans or
reducing or terminating the Commitments to be replaced, to (i) require the
Lenders under such Facility to assign such Loans or Commitments to the
Administrative Agent or its designees and (ii) amend the terms thereof in
accordance with Section 9.08 (with such replacement, if applicable,
being deemed to have been made pursuant to Section 9.08(d)).  Pursuant to any such assignment, all Loans
and Commitments to be replaced shall be purchased at par (allocated among the
Lenders under such Facility in the same manner as would be required if such
Loans were being optionally prepaid or such Commitments were being optionally
reduced or terminated by the Borrower), accompanied by payment of any accrued
interest and fees thereon and any amounts owing pursuant to Section 9.05(b).  By receiving such purchase price, the Lenders
under such Facility shall automatically be deemed to have assigned the Loans or
Commitments under such Facility pursuant to the terms of the form of Assignment
and Acceptance attached hereto as Exhibit A, and accordingly no other
action by such Lenders shall be required in connection therewith.  The provisions of this paragraph (g) are
intended to facilitate the maintenance of the perfection and priority of
existing security interests in the Collateral during any such replacement.


 


SECTION 9.05.              Expenses;
Indemnity.  (a)  The
Borrower agrees to pay (i) all reasonable out-of-pocket expenses
(including Other Taxes) incurred by the Administrative Agent in connection with
the preparation of this Agreement and the other Loan Documents, or by the
Administrative Agent in connection with the syndication of the Commitments or
the administration of this Agreement (including expenses incurred in connection
with due diligence and initial and ongoing Collateral examination to the extent
incurred with the reasonable prior approval of the Borrower and the reasonable
fees, disbursements and charges for no more than one outside counsel and, if
necessary one local counsel in each jurisdiction where Collateral is located)
or in connection with the administration of this Agreement and any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not
the Transactions hereby contemplated shall be consummated) and (ii) all
reasonable out-of-pocket expenses incurred by the Administrative Agent or any
Lender in connection with the enforcement or protection of their rights in
connection with this Agreement and the other Loan Documents, in connection with
the Loans made or the Letters of Credit issued hereunder (including the
reasonable fees, charges and disbursements of Simpson Thacher & LLP,
counsel for the Administrative Agent and the Joint Lead Arrangers, and, if
necessary, the reasonable fees, charges and disbursements of one local counsel
per relevant jurisdiction).


 


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(b)   The Borrower
agrees to indemnify the Administrative Agent, the Joint Lead Arrangers, each
Issuing Bank, each Lender and each of their respective Affiliates, successors
and assigns and the directors, trustees, officers, employees, advisors,
controlling persons and agents of each of the foregoing (each such person being
called an “Indemnitee”) against, and to hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and reasonable
out-of-pocket costs and related expenses (including reasonable documented fees,
charges and disbursements of Simpson Thacher & Bartlett LLP and, if
necessary, one local counsel in each relevant jurisdiction to the Agents, taken
as a whole, in each relevant jurisdiction) incurred by or asserted against any
Indemnitee arising out of, relating to, or as a result of (i) the
execution or delivery of this Agreement or any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto and thereto of their respective obligations thereunder or the
consummation of the Transactions and the other transactions contemplated
hereby, (ii) the use of the proceeds of the Loans or the use of any Letter
of Credit or (iii) any claim, litigation, investigation or proceeding
relating to any of the foregoing, whether or not 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
costs or related expenses (x) are determined by a judgment of a court of
competent jurisdiction to have resulted by reason of the gross negligence, bad
faith or willful misconduct of, or breach by, such Indemnitee (or its Related
Parties), (y) arise out of any claim, litigation, investigation or
proceeding brought by such Indemnitee (or its Related Parties) against another
Indemnitee (or its Related Parties) (other than any claim, litigation,
investigation or proceeding brought by or against the Administrative Agent,
acting in its capacity as Administrative Agent) that does not involve any act
or omission of the Borrower or any of its Affiliates and arises out of disputes
among the Lenders and/or their transferees. 
Subject to and without limiting the generality of the foregoing
sentence, the Borrower agrees to indemnify each Indemnitee against, and hold
each Indemnitee harmless from, any and all losses, claims, damages, liabilities
and reasonable out-of-pocket documented costs and reasonable out-of-pocket
costs and related expenses, including reasonable counsel or consultant fees,
charges and disbursements (limited to one counsel, plus, if necessary, one
local counsel in each relevant jurisdiction), incurred by or asserted against
any Indemnitee arising out of, in any way connected with, or as a result of (A) any
claim related in any way to Environmental Laws and Holdings, the Borrower or
any of their Subsidiaries, or (B) any actual or alleged presence, Release
or threatened Release of Hazardous Materials at, under, on or from any
Property, provided that such indemnity shall not, as to any Indemnitee,
be available to the extent that such losses, claims, damages, liabilities or
costs or related expenses are determined by a court of competent jurisdiction
by judgment to have resulted from the gross negligence, bad faith or willful
misconduct of, or breach by, such Indemnitee or any of its Related
Parties.  The Borrower shall not be
liable for any settlement of any proceeding referred to in this Section 9.05
effected without the Borrower’s written consent (such consent not to be
unreasonably withheld or delayed); provided, however, that the
Borrower shall indemnify the Indemnitees from and against any loss or liability
by reason of such settlement if the Borrower was offered the right to assume
the defense of such proceeding and did not assume such defense or such
proceeding was settled with the written consent of the Borrower, subject to, in
each case, the Borrower’s right in this Section 9.05 to claim an
exemption from such indemnity obligations. 
The Borrower shall indemnify the Indemnitees from and against any final
judgment for the plaintiff in any proceeding referred to in this Section 9.05,
subject to the Borrower’s right in this Section 9.05 to claim an
exemption from such indemnity obligations. 
The Borrower shall not, without the prior written consent of any
Indemnitee, effect any settlement of any pending or threatened proceeding in
respect of which such Indemnitee is a party and indemnity could have been
sought hereunder by such Indemnitee unless such settlement (i) includes an
unconditional release of such Indemnitee from all liability or claims that are
the subject matter of such proceeding and (ii) does not include a statement
as to or an admission of fault, culpability or a failure to act by or on behalf
of any Indemnitee.  To the extent
permitted by applicable law, each party hereto hereby waives for itself (and,
in the case of the Borrower, for each other Loan Party) any claim against any
Loan Party, any Lender, any Agent and their respective affiliates, directors,
employees, attorneys, agents or sub-agents, on any theory of liability, for
special, indirect, consequential


 


102

















 


or punitive damages (as opposed to direct or
actual damages) (whether or not the claim therefor is based on contract, tort
or duty imposed by any applicable legal requirement) arising out of, in
connection with, as a result of, or in any way related to, this Agreement or
any Loan Document or any agreement or instrument contemplated hereby or thereby
or referred to herein or therein, the transactions contemplated hereby or
thereby, any Loan or the use of the proceeds thereof or any act or omission or
event occurring in connection therewith, and each party hereto (and in the case
of the Borrower on behalf of each other Loan Party) hereby waive, release and
agree not to sue upon any such claim or any such damages, whether or not
accrued and whether or not known or suspected to exist in its favor.  The provisions of this Section 9.05
shall remain operative and in full force and effect regardless of the
expiration of the term of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Obligations, the termination
of the Commitments, the expiration of any Letters of Credit, the invalidity or
unenforceability of any term or provision of this Agreement or any other Loan
Document, or any investigation made by or on behalf of the Administrative
Agent, any Issuing Bank or any Lender. 
All amounts due under this Section 9.05 shall be payable on
written demand therefor accompanied by reasonable documentation with respect to
any reimbursement, indemnification or other amount requested.


 


(c)   Except as
expressly provided in Section 9.05(a) with respect to Other
Taxes, which shall not be duplicative with any amounts paid pursuant to Section 2.17,
this Section 9.05 shall not apply to Taxes.


 


SECTION 9.06.              Right
of Set-off.  If an Event of Default
shall have occurred and be continuing, each Lender and each Issuing Bank is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender or such Issuing Bank to or for
the credit or the account of Holdings, the Borrower or any Subsidiary Loan
Party against any of and all the obligations of Holdings or the Borrower now or
hereafter existing under this Agreement or any other Loan Document held by such
Lender or such Issuing Bank, irrespective of whether or not such Lender or such
Issuing Bank shall have made any demand under this Agreement or such other Loan
Document and although the obligations may be unmatured.  The rights of each Lender and each Issuing
Bank under this Section 9.06 are in addition to other rights and
remedies (including other rights of set-off) that such Lender or such Issuing
Bank may have.


 


SECTION 9.07.              Applicable
Law.  THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN
OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK.  EACH
LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE
WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO SUCH LAWS
OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY
CREDITS MOST RECENTLY PUBLISHED AND IN EFFECT, ON THE DATE SUCH LETTER OF
CREDIT WAS ISSUED, BY THE INTERNATIONAL CHAMBER OF COMMERCE (THE “UNIFORM CUSTOMS”)
AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE
STATE OF NEW YORK.


 


SECTION 9.08.              Waivers;
Amendment.  (a)  No failure
or delay of the Administrative Agent, any Issuing Bank or any Lender in
exercising any right or power hereunder or under any Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. 
The rights and remedies of the Administrative Agent, each Issuing Bank
and the Lenders hereunder and under the other Loan Documents are cumulative and
are not exclusive of any rights or remedies that they would


 


103

















 


otherwise
have.  No waiver of any provision of this
Agreement or any other Loan Document or consent to any departure by Holdings,
the Borrower or any other Loan Party therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) below, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given.  No notice
or demand on Holdings, the Borrower or any other Loan Party in any case shall
entitle such person to any other or further notice or demand in similar or
other circumstances.


 


(b)   Except as
provided in Section 2.21 with respect to an Incremental Facility
Amendment, neither this Agreement nor any other Loan Document nor any provision
hereof or thereof may be waived, amended or modified except (x) in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by Holdings, the Borrower, the Administrative Agent and the
Required Lenders and (y) in the case of any other Loan Document, pursuant
to an agreement or agreements in writing entered into by each party thereto and
the Administrative Agent and consented to by the Required Lenders; provided,
however, that no such agreement shall


 


(i)   decrease or forgive the
principal amount of, or extend the final maturity of, or decrease the rate of
interest on, any Loan or any L/C Disbursement, or extend the stated expiration
of any Letter of Credit beyond the Revolving Facility Maturity Date, without
the prior written consent of each Lender directly and adversely affected
thereby; provided, that any amendment to the Total Leverage Ratio or the
component definitions in this Agreement shall not constitute a reduction in the
rate of interest for purposes of this clause (i),


 


(ii)   increase or extend the
Revolving Credit Commitment of any Lender or decrease the Revolving Credit
Commitment Fees or L/C Participation Fees without the prior written consent of
such Lender (it being understood that waivers or modifications of conditions
precedent, covenants, Defaults or Events of Default or of a mandatory reduction
in the aggregate Commitments shall not constitute an increase of the
Commitments of any Lender),


 


(iii)   extend or waive any Term
Loan Installment Date or reduce the amount due on any Term Loan Installment
Date or extend any date on which payment of interest on any Loan or any L/C
Disbursement or any Fees is due, without the prior written consent of each
Lender directly and adversely affected thereby,


 


(iv)   amend or modify the
provisions of Section 2.18(b) or (c) or 2.10(d) of
this Agreement or Section 6.5 of the Collateral Agreement in a
manner that would by its terms alter the pro rata sharing of
payments required thereby, without the prior written consent of each Lender
directly and adversely affected thereby,


 


(v)   amend or modify the
provisions of this Section 9.08, Section 9.04(a)(i) or
the definition of the terms “Required Lenders”, “Majority Lenders”, without the
prior written consent of each Lender directly and adversely affected thereby
(it being understood that, with the consent of the Required Lenders, additional
extensions of credit pursuant to this Agreement may be included in the
determination of the Required Lenders on substantially the same basis as the
Loans and Commitments are included on the Closing Date),


 


(vi)   release all or substantially
all the Collateral or release all or substantially all of the value of the
Guarantees under the Collateral Agreement, unless, in the case of a Subsidiary
Loan Party, all or substantially all the Equity Interests of such Subsidiary
Loan Party is sold or otherwise disposed of in a transaction permitted by this
Agreement, without the prior written consent of each Lender, or


 


104

















 


(vii)   amend, modify or waive Section 2.18(b) or
(c) of this Agreement or the analogous provisions of any Security
Document so as to alter the ratable treatment of Obligations arising under the
Loan Documents and Obligations arising under Swap Agreements or the definition
of “Lender Counterparty,” “Swap Agreement,” or “Obligations,” in each case in a
manner adverse to any Lender Counterparty with Obligations then outstanding
without the written consent of any such Lender Counterparty,


 


provided, further,
that no such agreement shall amend, modify or otherwise affect the rights or
duties of the Administrative Agent, an Issuing Bank or the Swingline Lender
hereunder without the prior written consent of the Administrative Agent, such
Issuing Bank acting as such at the effective date of such agreement or the
Swingline Lender, as applicable; provided, however, if an Affiliate of
Holdings or any Permitted Investor shall be a Lender, the Loans held by such
person shall be deemed to have been voted in the same manner as the Required
Lenders (assuming for this purpose that the Loans held by such person were not
outstanding other than in respect of Section 9.04(a)(ii), and clauses (i),
(ii), (iii) or (iv) of the first proviso to this Section 9.08(b)).  Each Lender shall be bound by any waiver,
amendment or modification authorized by this Section 9.08 and any
consent by any Lender pursuant to this Section 9.08 shall bind any
assignee of such Lender.


 


(c)   Without the
consent of the Syndication Agent, the Documentation Agent or any Joint Lead
Arranger or Lender or Issuing Bank, the Loan Parties and the Administrative
Agent may (in their respective sole discretion, or shall, to the extent
required by any Loan Document) enter into any amendment, modification or waiver
of any Loan Document, or enter into any new agreement or instrument, to effect
the granting, perfection, protection, expansion or enhancement of any security
interest in any Collateral or additional property to become Collateral for the
benefit of the Secured Parties, or as required by local law to give effect to,
or protect any security interest for the benefit of the Secured Parties, in any
property or so that the security interests therein comply with applicable law.


 


(d)  
Notwithstanding the foregoing, this Agreement may be amended (or amended and
restated) with the written consent of the Required Lenders, the Administrative
Agent and the Borrower (a) to add one or more additional credit facilities
to this Agreement and to permit the extensions of credit from time to time
outstanding thereunder and the accrued interest and fees in respect thereof to
share ratably in the benefits of this Agreement and the other Loan Documents
with the Term Loans and the Revolving Facility Loans and the accrued interest
and fees in respect thereof and (b) to include appropriately the Lenders
holding such credit facilities in any determination of the Required Lenders.


 


SECTION 9.09.              Interest
Rate Limitation.  Notwithstanding
anything herein to the contrary, if at any time the applicable interest rate on
any Loan or participation in any L/C Disbursement, together with all fees and
charges that are treated as interest under applicable law (collectively, the “Charges”),
as provided for herein or in any other document executed in connection
herewith, or otherwise contracted for, charged, received, taken or reserved by
any Lender or any Issuing Bank, shall exceed the maximum lawful rate (the “Maximum
Rate”) that may be contracted for, charged, taken, received or reserved by
such Lender in accordance with applicable law, the rate of interest payable
hereunder, together with all Charges payable to such Lender or such Issuing
Bank, shall be limited to the Maximum Rate, provided that such excess
amount shall be paid to such Lender or such Issuing Bank on subsequent payment
dates to the extent not exceeding the legal limitation.


 


SECTION 9.10.              Entire
Agreement.  This Agreement, the other
Loan Documents and the agreements regarding certain Fees referred to herein
constitute the entire contract between the parties relative to the subject
matter hereof.  Any previous agreement
among or representations from the parties or their Affiliates with respect to
the subject matter hereof is superseded by this Agreement and the other Loan
Documents.  Notwithstanding the
foregoing, the Fee Letter shall survive the execution and


 


105

















 


delivery
of this Agreement and remain in full force and effect.  Nothing in this Agreement or in the other
Loan Documents, expressed or implied, is intended to confer upon any party
other than the parties hereto and thereto, and their respective successors and
assigns permitted hereunder, any rights, remedies, obligations or liabilities
under or by reason of this Agreement or the other Loan Documents.


 


SECTION 9.11.              WAIVER
OF JURY TRIAL.  EACH OF THE PARTIES
HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE
OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT
MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS
BEING ESTABLISHED.  THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE
FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS.  EACH
PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER
INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN
ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS
WAIVER IN ITS RELATED FUTURE DEALINGS. 
EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED
THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES
ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.  THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT
BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER
SPECIFICALLY REFERRING TO THIS SECTION 9.11 AND EXECUTED BY EACH OF
THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER LOAN
DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE
HEREUNDER.  IN THE EVENT OF LITIGATION,
THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.


 


SECTION 9.12.              Severability.  In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby.  The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.


 


SECTION 9.13.              Counterparts.  This Agreement may be executed in two or more
counterparts, each of which shall constitute an original but all of which, when
taken together, shall constitute but one contract, and shall become effective
as provided in Section 9.03. 
Delivery of an executed counterpart to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed original.


 


SECTION 9.14.              Headings.  Article and Section headings and
the Table of Contents used herein are for convenience of reference only, are
not part of this Agreement and are not to affect the construction of, or to be
taken into consideration in interpreting, this Agreement.


 


SECTION 9.15.              Jurisdiction;
Consent to Service of Process.  (a)  Each
of the parties hereto hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive


 


106

















 


jurisdiction
of any New York State court or federal court of the United States of America
sitting in New York City, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Agreement or the other
Loan Documents, or for recognition or enforcement of any judgment, and each of
the parties hereto hereby 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 or, to the extent permitted by 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 shall affect any right that any Lender, the Administrative Agent or
any Issuing Bank may otherwise have to bring any action or proceeding relating
to this Agreement or the other Loan Documents against Holdings, the Borrower or
any Loan Party or their properties in the courts of any jurisdiction.


 


(b)   Each of the
parties hereto hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement or the other Loan Documents in any New York
State or federal court.  Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.


 


(c)   Each of the
parties hereto agrees that service of all process in any such proceeding  in any such court may be made by registered
or certified mail, return receipt requested at its address provided in Section 9.01
agrees that service as so provided in is sufficient to confer personal
jurisdiction over the applicable credit party in any such proceeding in any
such court, and otherwise constitutes effective and binding service in every
respect; and agrees that agents and lenders retain the right to serve process
in any other manner permitted by law or to bring proceedings against any credit
party in the courts of any other jurisdiction.


 


SECTION 9.16.              Confidentiality.  Each of the Lenders, each Issuing Bank and
each of the Agents agrees that it shall maintain in confidence any information
relating to Holdings, the Borrower and the other Loan Parties furnished to it
by or on behalf of Holdings, the Borrower or the other Loan Parties (other than
information that (a) has become generally available to the public other
than as a result of a disclosure by such party, (b) has been independently
developed by such Lender, such Issuing Bank or such Agent without violating
this Section 9.16 or (c) was available to such Lender, such
Issuing Bank or such Agent from a third party having, to such person’s
knowledge, no obligations of confidentiality to Holdings, the Borrower or any
other Loan Party) and shall not reveal the same other than to its directors,
trustees, officers, employees and advisors with a need to know or to any person
that approves or administers the Loans on behalf of such Lender (so long as
each such person shall have been instructed to keep the same confidential in
accordance with this Section 9.16), except:  (A) to the extent necessary to comply
with law or any legal process or the requirements of any Governmental
Authority, self-regulatory authorities (including the National Association of
Insurance Commissioners) or of any securities exchange on which securities of
the disclosing party or any affiliate of the disclosing party are listed or
traded (in which case we will promptly notify you, in advance, to the extent
permitted by applicable law or the rules governing the process requiring
such disclosure) (B) as part of the reporting or review procedures to, or
examinations by, Governmental Authorities or self-regulatory authorities,
including the National Association of Insurance Commissioners or the National
Association of Securities Dealers, Inc., (C) to its parent companies,
affiliates, auditors, assignees, transferees and participants (so long as each
such person shall have been instructed to keep the same confidential in
accordance provisions not less restrictive than this Section 9.16),
(D) in order to enforce its rights under any Loan Document in a legal
proceeding, (E) to any pledgee under Section 9.04(d) or
any other prospective assignee of, or prospective Participant in, any of its
rights under this Agreement (so long as such person shall have been instructed
to keep the same confidential in accordance with this Section 9.16
or other


 


107

















 


provisions
at least as restrictive as this Section 9.16), (F) to any
direct or indirect contractual counterparty in Swap Agreements or such
contractual counterparty’s professional advisor (so long as such contractual
counterparty or professional advisor to such contractual counterparty agrees to
be bound by the provisions of this Section 9.16), (G) disclosure
to any rating agency when required by it (so long as such person shall have
been instructed to keep the same confidential in accordance with this Section 9.16)
and (H) with the consent of the Borrower. 
In addition, each Agent and each Lender may disclose the existence of
this Agreement and the information about this Agreement to market data collectors,
similar services providers to the lending industry, and service providers to
the Agents and the Lenders in connection with the administration and management
of this Agreement,  the other Loan
Documents any Swap Agreement to which a Lender Counterparty is a party.


 


SECTION 9.17.              Release
of Liens and Guarantees.  In the
event that any Loan Party conveys, sells, leases, assigns, transfers or
otherwise disposes of any assets or all or any portion of any of the Equity
Interests or assets of any Subsidiary Loan Party to a person that is not (and
is not required to become) a Loan Party in each case in a transaction not
prohibited by Section 6.05 or in connection with a Subsidiary
Redesignation or in connection with a pledge of the Equity Interests of joint
ventures permitted by Section 6.02, the Administrative Agent (or any
co-agent, sub-collateral agent or other agent appointed pursuant to Section 8.12)
shall promptly (and the Lenders hereby authorize the Administrative Agent to)
take such action and execute any such documents as may be reasonably requested
by Holdings or the Borrower and at the Borrower’s expense to release any Liens
created by any Loan Document in respect of such Equity Interests or assets,
and, in the case of a disposition of the Equity Interests of any Subsidiary
Loan Party in a transaction permitted by Section 6.05 and Section 8.12
or in connection with a Subsidiary Redesignation and as a result of which such
Subsidiary Loan Party would cease to be a Subsidiary, terminate such Subsidiary
Loan Party’s obligations under its Guarantee. 
Any representation, warranty or covenant contained in any Loan Document
relating to any such Equity Interests, asset or subsidiary of Holdings shall no
longer be deemed to be made once such Equity Interests or asset is so conveyed,
sold, leased, assigned, transferred or disposed of.


 


SECTION 9.18.              USA
PATRIOT Act.  Each Lender hereby
notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act,
it is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and
other information that will allow such Lender to identify the Borrower in
accordance with the USA PATRIOT Act.


 


SECTION 9.19.              Marshalling;
Payments Set Aside.  Neither any Agent nor any Lender shall be
under any obligation to marshal any assets in favor of any Loan Party or any
other person or against or in payment of any or all of the Obligations.  To the extent that any Loan Party makes a
payment or payments to Administrative Agent or Lenders (or to Administrative
Agent, on behalf of Lenders), or any Agent or Lenders enforce any security
interests or exercise their rights of setoff, and such payment or payments or
the proceeds of such enforcement or setoff or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, any other state or federal law, common law or any equitable
cause, then, to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied, and all Liens, rights and remedies
therefor or related thereto, shall be revived and continued in full force and
effect as if such payment or payments had not been made or such enforcement or
setoff had not occurred.


 


SECTION 9.20.              Obligations
Several; Independent Nature of Lenders’ Rights.  The obligations of
Lenders hereunder are several and no Lender shall be responsible for the obligations
or Commitment of any other Lender hereunder. 
Nothing contained herein or in any other Loan Document, and no action
taken by Lenders pursuant hereto or thereto, shall be deemed to constitute
Lenders as a


 


108

















 


partnership,
an association, a joint venture or any other kind of entity. The amounts
payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights arising out hereof and it shall not be necessary for any other Lender to
be joined as an additional party in any proceeding for such purpose.


 


SECTION 9.21.              Electronic
Execution of Assignments.   The words “execution,” “signed,” “signature,”
and words of like import in any Assignment Agreement 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.


 


[Signature Pages Follow]


 


109

















 


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


 


	
   

  	
  GENERAC
  ACQUISITION CORP.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  	
  /s/
  Aaron P. Jagdfeld

  
	
   

  	
   

  	
   

  	
  Name:    Aaron
  P. Jagdfeld

  
	
   

  	
   

  	
   

  	
  Title:     Chief
  Financial Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  GPS
  CCMP MERGER CORP.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  	
  /s/
  Aaron P. Jagdfeld

  
	
   

  	
   

  	
   

  	
  Name:    Aaron
  P. Jagdfeld

  
	
   

  	
   

  	
   

  	
  Title:     Chief
  Financial Officer

  



 


110














 


	
   

  	
  GOLDMAN
  SACHS CREDIT PARTNERS L.P., as Lender and as Administrative Agent

  
	
   

  	
   

  
	
   

  	
  by:

  	
  Illegible

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


111

















 


	
   

  	
  JPMORGAN
  CHASE BANK, N.A. as a Lender and as Syndication Agent

  
	
   

  	
   

  
	
   

  	
  by:

  	
  /s/
  Kathryn A. Duncan

  
	
   

  	
   

  	
  Name:

  	
  Kathryn
  A. Duncan

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  



 


112

















 


	
   

  	
  BARCLAYS
  BANK, PLC, as a Lender and as Documentation Agent

  
	
   

  	
   

  
	
   

  	
  by:

  	
  /s/
  David Barton

  
	
   

  	
   

  	
  Name:

  	
  David
  Barton

  
	
   

  	
   

  	
  Title:

  	
  Associate
  Director

  



 


113

















 


	
   

  	
  GENERAL ELECTRIC CAPITAL CORPORATION

  
	
   

  	
   

  
	
   

  	
  by:

  	
  Illegible

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


114

















 


	
   

  	
  MIZUHO CORPORATE BANK, LTD

  
	
   

  	
   

  
	
   

  	
  by:

  	
  /s/
  James. R. Fayen 

  
	
   

  	
   

  	
  Name:

  	
  James
  R. Fayen 

  
	
   

  	
   

  	
  Title:

  	
  Deputy
  General Manager 

  



 


115

















 


	
   

  	
  WELLS
  FARGO BANK, N.A.

  
	
   

  	
   

  
	
   

  	
  by:

  	
  /s/
  Paul J. Hennessy

  
	
   

  	
   

  	
  Name:

  	
  Paul
  J. Hennessy

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


116

















 


	
   

  	
  METLIFE INSURANCE COMPANY OF CONNECTICUT

  
	
   

  	
   

  
	
   

  	
  by:

  	
  /s/
  James R. Dingler

  
	
   

  	
   

  	
  Name:

  	
  James
  R. Dingler 

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 


117