Exhibit 10.1


 


EXECUTION COPY


 


$760,000,000


 


CREDIT AGREEMENT


 


Dated as of July 21, 2006,


 


Among


 


CHASE ACQUISITION I, INC.,


 


CHASE MERGER SUB, INC. (to be merged with and into
RBS Global, Inc.)

and

REXNORD CORPORATION,

as Borrowers,


 


THE LENDERS PARTY HERETO,


 


MERRILL LYNCH CAPITAL CORPORATION,

as Administrative Agent,


 


CREDIT SUISSE SECURITIES (USA)
LLC,

as Syndication Agent,


 


and


 


BEAR, STEARNS & CO. INC.


and

LEHMAN BROTHERS INC.,

as Co-Documentation Agents


 






 


MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

CREDIT SUISSE SECURITIES (USA) LLC,

BEAR, STEARNS & CO. INC.

and

LEHMAN BROTHERS INC.,

as Joint Bookrunners


 


MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED

and

CREDIT SUISSE SECURITIES (USA) LLC

as Co-Lead Arrangers


 


 

















 


TABLE OF CONTENTS


 


 


 


ARTICLE I


 


Definitions


 


	
  SECTION 1.01.

  	
  Defined Terms

  	
  1

  
	
  SECTION 1.02.

  	
  Terms Generally

  	
  117

  
	
  SECTION 1.03.

  	
  Effectuation of Transfers

  	
  118

  
	
  SECTION 1.04.

  	
  Exchange Rates; Currency Equivalents

  	
  118

  



 


 


ARTICLE II


 


The Credits


 


	
  SECTION 2.01.

  	
  Commitments

  	
  119

  
	
  SECTION 2.02.

  	
  Loans and Borrowings

  	
  120

  
	
  SECTION 2.03.

  	
  Requests for Borrowings

  	
  122

  
	
  SECTION 2.04.

  	
  Swingline Loans

  	
  124

  
	
  SECTION 2.05.

  	
  Letters of Credit

  	
  127

  
	
  SECTION 2.06.

  	
  Funding of Borrowings

  	
  140

  
	
  SECTION 2.07.

  	
  Interest Elections

  	
  142

  
	
  SECTION 2.08.

  	
  Termination and Reduction of Commitments

  	
  144

  
	
  SECTION 2.09.

  	
  Repayment of Loans; Evidence of Debt

  	
  146

  
	
  SECTION 2.10.

  	
  Repayment of Term Loans and Revolving Facility Loans

  	
  148

  
	
  SECTION 2.11.

  	
  Prepayment of Loans

  	
  152

  
	
  SECTION 2.12.

  	
  Fees

  	
  155

  
	
  SECTION 2.13.

  	
  Interest

  	
  157

  
	
  SECTION 2.14.

  	
  Alternate Rate of Interest

  	
  159

  
	
  SECTION 2.15.

  	
  Increased Costs

  	
  160

  
	
  SECTION 2.16.

  	
  Break Funding Payments

  	
  163

  
	
  SECTION 2.17.

  	
  Taxes

  	
  164

  
	
  SECTION 2.18.

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

  	
  167

  
	
  SECTION 2.19.

  	
  Mitigation Obligations; Replacement of Lenders

  	
  172

  
	
  SECTION 2.20.

  	
  Illegality

  	
  175

  
	
  SECTION 2.21.

  	
  Incremental Commitments

  	
  176

  



 


 


ARTICLE III


 


Representations and Warranties


 


	
  SECTION 3.01.

  	
  Organization; Powers

  	
  181

  
	
  SECTION 3.02.

  	
  Authorization

  	
  182

  



 


 


i

















 


	
  SECTION 3.03.

  	
  Enforceability

  	
  183

  
	
  SECTION 3.04.

  	
  Governmental Approvals

  	
  184

  
	
  SECTION 3.05.

  	
  Financial Statements

  	
  184

  
	
  SECTION 3.06.

  	
  No Material Adverse Effect

  	
  186

  
	
  SECTION 3.07.

  	
  Title to Properties; Possession Under Leases

  	
  186

  
	
  SECTION 3.08.

  	
  Subsidiaries

  	
  188

  
	
  SECTION 3.09.

  	
  Litigation; Compliance with Laws

  	
  188

  
	
  SECTION 3.10.

  	
  Federal Reserve Regulations

  	
  189

  
	
  SECTION 3.11.

  	
  Investment Company Act

  	
  190

  
	
  SECTION 3.12.

  	
  Use of Proceeds

  	
  190

  
	
  SECTION 3.13.

  	
  Tax Returns

  	
  191

  
	
  SECTION 3.14.

  	
  No Material Misstatements

  	
  192

  
	
  SECTION 3.15.

  	
  Employee Benefit Plans

  	
  193

  
	
  SECTION 3.16.

  	
  Environmental Matters

  	
  194

  
	
  SECTION 3.17.

  	
  Security Documents

  	
  196

  
	
  SECTION 3.18.

  	
  Location of Real Property and Leased Premises

  	
  199

  
	
  SECTION 3.19.

  	
  Solvency

  	
  199

  
	
  SECTION 3.20.

  	
  Labor Matters

  	
  200

  
	
  SECTION 3.21.

  	
  Insurance

  	
  201

  
	
  SECTION 3.22.

  	
  No Default

  	
  202

  
	
  SECTION 3.23.

  	
  Intellectual Property; Licenses, Etc.

  	
  202

  
	
  SECTION 3.24.

  	
  Senior Debt

  	
  202

  



 


 


ARTICLE IV


 


Conditions of Lending


 


	
  SECTION 4.01.

  	
  All Credit Events

  	
  203

  
	
  SECTION 4.02.

  	
  First Credit Event

  	
  205

  



 


 


ARTICLE V


 


Affirmative Covenants


 


	
  SECTION 5.01.

  	
  Existence; Business and Properties

  	
  214

  
	
  SECTION 5.02.

  	
  Insurance

  	
  215

  
	
  SECTION 5.03.

  	
  Taxes

  	
  217

  
	
  SECTION 5.04.

  	
  Financial Statements, Reports,
  etc.

  	
  217

  
	
  SECTION 5.05.

  	
  Litigation and Other Notices

  	
  223

  
	
  SECTION 5.06.

  	
  Compliance with Laws

  	
  224

  
	
  SECTION 5.07.

  	
  Maintaining Records; Access to Properties and Inspections

  	
  224

  
	
  SECTION 5.08.

  	
  Use of Proceeds

  	
  225

  
	
  SECTION 5.09.

  	
  Compliance with Environmental Laws

  	
  225

  
	
  SECTION 5.10.

  	
  Further Assurances; Additional Security

  	
  225

  
	
  SECTION 5.11.

  	
  Rating

  	
  231

  



 


 


ii

















 


ARTICLE VI


 


Negative Covenants


 


	
  SECTION 6.01.

  	
  Indebtedness

  	
  232

  
	
  SECTION 6.02.

  	
  Liens

  	
  241

  
	
  SECTION 6.03.

  	
  Sale and Lease-Back Transactions

  	
  250

  
	
  SECTION 6.04.

  	
  Investments, Loans and Advances

  	
  251

  
	
  SECTION 6.05.

  	
  Mergers, Consolidations, Sales of Assets and Acquisitions

  	
  260

  
	
  SECTION 6.06.

  	
  Dividends and Distributions

  	
  267

  
	
  SECTION 6.07.

  	
  Transactions with Affiliates

  	
  271

  
	
  SECTION 6.08.

  	
  Business of the Borrowers and the Subsidiaries

  	
  278

  
	
  SECTION 6.09.

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

  	
  279

  
	
  SECTION 6.10.

  	
  Capital Expenditures

  	
  284

  
	
  SECTION 6.11.

  	
  Total Senior Secured Bank Leverage Ratio

  	
  285

  
	
  SECTION 6.12.

  	
  Swap Agreements 

  	
  286

  
	
  SECTION 6.13.

  	
  No Other “Designated Senior Debt”

  	
  286

  
	
  SECTION 6.14.

  	
  Fiscal Year; Accounting

  	
  287

  



 


 


ARTICLE VIA 
Holdings Negative Covenants


 


 


 


ARTICLE VII


 


Events of Default


 


	
  SECTION 7.01.

  	
  Events of Default

  	
  288

  
	
  SECTION 7.02.

  	
  Exclusion of Immaterial Subsidiaries

  	
  296

  
	
  SECTION 7.03.

  	
  Right to Cure

  	
  297

  



 


 


ARTICLE VIII


 


The Agents


 


	
  SECTION 8.01.

  	
  Appointment

  	
  299

  
	
  SECTION 8.02.

  	
  Delegation of Duties

  	
  303

  
	
  SECTION 8.03.

  	
  Exculpatory Provisions

  	
  304

  
	
  SECTION 8.04.

  	
  Reliance by Administrative Agent

  	
  306

  
	
  SECTION 8.05.

  	
  Notice of Default

  	
  308

  
	
  SECTION 8.06.

  	
  Non-Reliance on Agents and Other Lenders

  	
  308

  
	
  SECTION 8.07.

  	
  Indemnification

  	
  309

  
	
  SECTION 8.08.

  	
  Agent in Its Individual Capacity

  	
  311

  
	
  SECTION 8.09.

  	
  Successor Administrative Agent

  	
  311

  



 


 


iii

















 


	
  SECTION 8.10.

  	
  Agents and Arrangers

  	
  312

  
	
  SECTION 8.11.

  	
  Special Appointment of Collateral Agent (Germany)

  	
  313

  
	
  SECTION 8.12.

  	
  Parallel Debt (The Netherlands and Germany)

  	
  314

  



 


 


ARTICLE IX


 


Miscellaneous


 


	
  SECTION 9.01.

  	
  Notices; Communications

  	
  316

  
	
  SECTION 9.02.

  	
  Survival of Agreement

  	
  319

  
	
  SECTION 9.03.

  	
  Binding Effect

  	
  320

  
	
  SECTION 9.04.

  	
  Successors and Assigns

  	
  321

  
	
  SECTION 9.05.

  	
  Expenses; Indemnity

  	
  332

  
	
  SECTION 9.06.

  	
  Right of Set-off

  	
  336

  
	
  SECTION 9.07.

  	
  Applicable Law

  	
  337

  
	
  SECTION 9.08.

  	
  Waivers; Amendment

  	
  337

  
	
  SECTION 9.09.

  	
  Interest Rate Limitation

  	
  343

  
	
  SECTION 9.10.

  	
  No Liability of the Issuing Bank

  	
  343

  
	
  SECTION 9.11.

  	
  Entire Agreement

  	
  344

  
	
  SECTION 9.12.

  	
  WAIVER OF JURY TRIAL

  	
  345

  
	
  SECTION 9.13.

  	
  Severability

  	
  346

  
	
  SECTION 9.14.

  	
  Counterparts

  	
  346

  
	
  SECTION 9.15.

  	
  Headings

  	
  346

  
	
  SECTION 9.16.

  	
  Jurisdiction; Consent to Service of Process

  	
  347

  
	
  SECTION 9.17.

  	
  Confidentiality

  	
  348

  
	
  SECTION 9.18.

  	
  Platform; Borrowers Materials

  	
  350

  
	
  SECTION 9.19.

  	
  Release of Liens and Guarantees

  	
  351

  
	
  SECTION 9.20.

  	
  Judgment Currency

  	
  352

  
	
  SECTION 9.21.

  	
  USA PATRIOT Act Notice

  	
  353

  



 


 


iv

















 


Exhibits and
Schedules


 


	
  Exhibit A

  	
  Form of Assignment and Acceptance

  
	
  Exhibit B

  	
  Form of Administrative Questionnaire

  
	
  Exhibit C

  	
  Form of Solvency Certificate

  
	
  Exhibit D-1

  	
  Form of Borrowing Request

  
	
  Exhibit D-2

  	
  Form of Swingline Borrowing Request

  
	
  Exhibit E

  	
  Form of Interest Election Request

  
	
  Exhibit F

  	
  Form of Mortgage

  
	
  Exhibit G

  	
  Form of Collateral Agreement

  
	
   

  	
   

  
	
  Schedule 1.01A

  	
  Certain U.S. Subsidiaries

  
	
  Schedule 1.01B

  	
  Mortgaged Properties

  
	
  Schedule 1.01C

  	
  Immaterial Subsidiaries

  
	
  Schedule 1.01D

  	
  Restructuring Transactions

  
	
  Schedule 2.01

  	
  Commitments

  
	
  Schedule 3.01

  	
  Organization and Good Standing

  
	
  Schedule 3.04

  	
  Governmental Approvals

  
	
  Schedule 3.07(b)

  	
  Possession under Leases

  
	
  Schedule 3.07(c)

  	
  Intellectual Property

  
	
  Schedule 3.08(a)

  	
  Subsidiaries

  
	
  Schedule 3.08(b)

  	
  Subscriptions

  
	
  Schedule 3.13

  	
  Taxes

  
	
  Schedule 3.21

  	
  Insurance

  
	
  Schedule 3.23

  	
  Intellectual Property

  
	
  Schedule 4.02(b)

  	
  Local Counsel

  
	
  Schedule 6.01

  	
  Indebtedness

  
	
  Schedule 6.02(a)

  	
  Liens

  
	
  Schedule 6.04

  	
  Investments

  
	
  Schedule 6.07

  	
  Transactions with Affiliates

  
	
  Schedule 9.01

  	
  Notice Information

  
	
  Schedule 9.04

  	
  Processing and Recordation Fees

  



 


 


v

















 


CREDIT AGREEMENT dated as of July 21, 2006 (this “Agreement”),
among CHASE ACQUISITION I, INC., a Delaware corporation (“Holdings”),
CHASE MERGER SUB, INC., a Delaware corporation (“Merger Sub”), to be
merged with and into RBS Global, Inc., a Delaware corporation (“Target”),
REXNORD CORPORATION, a Delaware corporation (“Rexnord” and, together
with Merger Sub (prior to the Merger) and Target (after the Merger), the “Borrowers”),
the LENDERS party hereto from time to time, MERRILL LYNCH CAPITAL
CORPORATION, as
administrative agent (in such capacity, the “Administrative Agent”) for
the Lenders, CREDIT SUISSE SECURITIES (USA) LLC, as syndication agent (in such capacity,
the “Syndication Agent”), and BEAR, STEARNS & CO. INC. and
LEHMAN BROTHERS INC., as co-documentation agents (in such capacities, the
“Documentation Agents”).


WHEREAS, Apollo Management VI, L.P. and other
affiliated co-investment partnerships (collectively, the “Fund”)
have indirectly formed Holdings and Merger Sub for the purpose of entering into
that certain Agreement and Plan of Merger by and among Holdings, Merger Sub,
Target and TC Group, L.L.C., dated as of May 24, 2006 (as amended or supplemented as of the
date hereof, the “Merger Agreement”), pursuant to which
(a) Merger Sub will merge (the
“Merger”) with and into Target, with (i) Target surviving as a
Wholly Owned Subsidiary of Holdings and (ii) Target assuming by operation
of law all of the Obligations of Merger Sub under this Agreement and the
other Loan Documents;
and


WHEREAS, in connection with the consummation of the
Merger, the Borrowers have requested the Lenders to extend credit in the form
of (a) Term B Loans on the Closing Date, in an aggregate principal
amount not in excess of $610.0 million, and (b) Revolving Facility
Loans and Letters of Credit at any time 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;


NOW, THEREFORE, the Lenders are willing to extend such
credit to the Borrowers 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 fluctuating
rate per annum equal to the higher of (a) the Federal Funds Effective Rate
in effect for such day plus 1/2 of 1% and (b) the Prime Rate in effect on
such day.  Any change in such rate due to
a change in the Prime Rate or the Federal Funds Effective Rate shall be
effective from and including the effective date of such change in the Prime
Rate or the Federal Funds Effective Rate, as the case may be.


“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.


“Acquired
Capex Amount” shall mean, for any fiscal year, after the consummation of a
Permitted Business Acquisition, an amount equal to 110% of the average annual
capital expenditures made by the person or business so acquired, as shown in
the financial statements (audited or unaudited) of such person or business (if
available, and, if such financial statements are unavailable, as shown on a
certificate provided in good faith by a Responsible Officer estimating the
approximate annual capital expenditures), during the three fiscal years (or
such shorter period for which such financial statements are available)
preceding such acquisition.


“Additional Mortgage” shall have the meaning
assigned to such term in Section 5.10(c).


“Adjusted LIBO Rate” shall mean, with respect
to any Eurocurrency Borrowing for any Interest Period, an interest rate per
annum equal (rounded upwards, if necessary, to the next 1/16 of 1%) 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 “Pricing Grid.”


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


“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 or such other
form supplied by the Administrative Agent.


“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.


“Agents” shall mean the Administrative Agent,
the Collateral Agent, the Syndication Agent and the Documentation Agents.


 


2

















 


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


“Alternate Currency” shall mean, with respect
to any Letter of Credit, Canadian Dollars, Australian Dollars, Pounds Sterling,
Brazilian Real, Mexican Pesos and Euros and any other currency other than
Dollars as may be acceptable to the Administrative Agent and the Issuing Bank
with respect thereto in their sole discretion.


“Alternate
Currency Letter of Credit” shall mean any Letter of Credit denominated in
an Alternate Currency.


“Applicable Commitment Fee” shall mean for any
day 0.50% per annum; provided, that on and after the first Adjustment
Date occurring after delivery of the financial statements and certificates
required by Section 5.04 upon the completion of one full fiscal quarter of
the Borrowers after the Closing Date, the Applicable Commitment Fee will be
determined pursuant to the Pricing Grid.


“Applicable Margin” shall mean for any day
(i) with respect to any Term B Loan, 2.50% per annum in the case of
any Eurocurrency Loan and 1.50% per annum in the case of any ABR Loan and
(ii) with respect to any Revolving Facility Loan, 2.25% per annum in the
case of any Eurocurrency Loan and 1.25% per annum in the case of any ABR Loan; provided,
that on and after the first Adjustment Date occurring after delivery of the
financial statements and certificates required by Section 5.04 upon the
completion of one full fiscal quarter of the Borrowers after the Closing Date,
the Applicable Margin with respect to the Facilities will be determined
pursuant to the Pricing Grid.


“Applicable Period” means an Excess Cash Flow
Period or an Excess Cash Flow Interim Period, as the case may be.


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


“Asset Sale” shall mean 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 Holdings, the Borrowers or
any Subsidiary.


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


“Assignee Group” shall mean two or more
Assignees permitted hereunder that are Affiliates of one another or two or more
Approved Funds managed by the same investment advisor.


“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 Borrowers (if required by
Section 9.04), in the form of Exhibit A or such other form as
shall be approved by the Administrative Agent.


 


3

















 


“Availability Period” shall mean the period
from and including the Closing Date to but excluding the earlier of the
Revolving Facility Maturity Date and in the case of each of the Revolving
Facility Loans, Revolving Facility Borrowings, Swingline Loans, Swingline
Borrowings and Letters of Credit, 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; provided, that
with respect to any Swingline Lender, the Available Unused Commitment at any
time shall be reduced by the principal amount of any Swingline Loans made by
such Lender outstanding at such time.


“Below Threshold Asset Sale Proceeds” shall
have the meaning assigned to such term in the definition of the term “Cumulative
Credit”.


“Board” shall mean the Board of Governors of
the Federal Reserve System of the United States of America.


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


“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
$5.0 million, except in the case of Swingline Loans, $1.0 million.


“Borrowing Multiple” shall mean $250,000.


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


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


“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 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 the
applicable currency in the London interbank market.


“Capital Expenditures” shall mean, for any
person in respect of any period, the aggregate of all expenditures incurred by
such person during such period that, in accordance with GAAP, are or should be
included in “additions to property, plant or equipment” or similar items
reflected in the statement of cash flows of such person, provided, however,
that Capital Expenditures for Holdings, the Borrowers and the Subsidiaries
shall not include:


 


4

















 


(a)           expenditures to the extent they are
made with proceeds of the issuance of Equity Interests of Holdings after the
Closing Date or funds that would have constituted any Net Proceeds under
clause (a) of the definition of the term “Net Proceeds” (but for the
application of the first proviso to such clause (a)),


(b)           expenditures with 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 Borrowers and the Subsidiaries within
15 months of receipt of such proceeds (or, if not made within such period
of 15 months, are committed to be made during such period),


(c)           interest capitalized during such
period,


(d)           expenditures that are accounted for
as capital expenditures of such person and that actually are paid for by a
third party (excluding Holdings, the Borrowers or any Subsidiary thereof) and
for which none of Holdings, the Borrowers or any 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),


(e)           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,


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


(g)           Investments in respect of a Permitted
Business Acquisition,


(h)           the Merger, or


(i)            the purchase of property, plant or
equipment made within 15 months of the sale of any asset to the extent
purchased with the proceeds of such sale (or, if not made within such period of
15 months, to the extent committed to be made during such period).


“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 


 


5

















 


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 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 Borrowers and the Subsidiaries on a consolidated basis for any
period, Interest Expense for such period, less the sum of, without duplication,
(a) pay in kind Interest Expense or other non-cash Interest Expense
(including as a result of the effects of purchase accounting), (b) to the
extent included in Interest Expense, the amortization of any financing fees
paid by, or on behalf of, the Borrowers or any Subsidiary, including such fees
paid in connection with the Transactions or upon entering into a Permitted
Receivables Financing, (c) the amortization of debt discounts, if any, or
fees in respect of Swap Agreements and (d) cash interest income of the
Borrowers and their Subsidiaries for such period; provided, that Cash
Interest Expense shall exclude any one time financing fees, including those
paid in connection with the Transactions, or upon entering into a Permitted
Receivables Financing or any amendment of this Agreement.


A “Change in Control” shall be deemed to occur
if:


(a)           at any time, (i) Holdings shall
fail to own, directly or indirectly, beneficially and of record, 100% of the
issued and outstanding Equity Interests of the Borrowers, (ii) a majority
of the seats (other than vacant seats) on the board of directors of Holdings
shall at any time be occupied by persons who were neither (A) nominated by
the board of directors of Holdings or a Permitted Holder, (B) appointed by
directors so nominated nor (C) appointed by a Permitted Holder or
(iii) a “change of control” (or similar event) shall occur under the
Senior Unsecured Notes Indenture, Senior Subordinated Notes Indenture, any
Permitted Ratio Debt or any Permitted Refinancing Indebtedness in respect of
any of the foregoing or any Disqualified Stock;


(b)           at any time prior to a Qualified IPO,
any combination of Permitted Holders shall fail to own beneficially (within the
meaning of Rule 13d-5 of the Exchange Act as in effect on the
Closing Date), directly or indirectly, in the aggregate Equity Interests
representing at least a majority of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests of Holdings; or


(c)           at any time after a Qualified IPO,
any person or “group” (within the meaning of Rules 13d-3 and 13d-5
under the Exchange Act as in effect on the Closing Date), other than any
combination of the Permitted Holders or any “group” including any Permitted
Holders, shall have acquired beneficial ownership of 35% or more on a fully
diluted basis of the voting interest in Holdings’ Equity Interests and the
Permitted Holders shall own, directly or indirectly, less than such person or “group”
on a fully diluted basis of the voting interest in Holdings’ Equity Interests.


“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 


 


6

















 


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.


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


“Closing Date” shall mean July 21, 2006.


“Code” shall mean the Internal Revenue Code of
1986, as amended from time to time and the regulations promulgated and rulings
issued thereunder.


“Co-Lead Arrangers” shall mean Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Credit Suisse Securities (USA) LLC, in their capacities as co-lead
arrangers and joint bookrunners.


“Collateral” shall mean all the “Collateral” as
defined in any Security Document and shall also include the Mortgaged
Properties and all other property that is subject to any Lien in favor of the
Administrative Agent, the Collateral Agent or any Subagent for the benefit of
the Lenders pursuant to any Security Documents.


“Collateral Agent” shall mean the
Administrative Agent acting as collateral agent for the Lenders.


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


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


(a)           on the Closing Date, the Collateral
Agent shall have received (i) from Holdings, the Borrowers 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 Subsidiary that is an issuer of Pledged Collateral (as defined in the
Collateral Agreement), if any, that is not a Loan Party;


(b)           on the Closing Date, (i) the
Collateral Agent shall have received (A) a pledge of all the issued and
outstanding Equity Interests of (x) the Borrowers and (y) each
Domestic Subsidiary (other than Subsidiaries listed on Schedule 1.01A)
owned on the Closing Date directly by or on behalf of the Borrowers or any
Subsidiary Loan Party and (B) a pledge of 65% of the outstanding Equity
Interests of each “first tier” Foreign Subsidiary directly owned by any Loan
Party and (ii) the Collateral Agent 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;


(c)           (i) all Indebtedness of
Holdings, the Borrowers and each Subsidiary having, in the case of each
instance of Indebtedness, an aggregate principal amount in 


 


7

















 


excess of $5.0 million
(other than (A) intercompany current liabilities incurred in the ordinary
course of business in connection with the cash management operations of
Holdings and its Subsidiaries or (B) to the extent that a pledge of such
promissory note or instrument would violate applicable law) that is owing to
any Loan Party shall be evidenced by a promissory note or an instrument and
shall have been pledged pursuant to the Collateral Agreement (or other
applicable Security Document as reasonably required by the Collateral Agent),
and (ii) the Collateral Agent 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)           in the case of any person that becomes
a Subsidiary Loan Party after the Closing Date, the Collateral 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;


(e)           in the case of any person that
becomes a “first tier” Foreign Subsidiary directly owned by Holdings, the
Borrowers or a Subsidiary Loan Party after the Closing Date, the Collateral
Agent shall have received, as promptly as practicable following a request by
the Collateral Agent, a Foreign Pledge Agreement, duly executed and delivered
on behalf of such Foreign Subsidiary and the direct parent company of such
Foreign Subsidiary;


(f)            after the Closing Date, (i) all
the outstanding Equity Interests of (A) any person that becomes a
Subsidiary Loan Party after the Closing Date and (B) subject to
Section 5.10(g), all the Equity Interests that are acquired by a Loan
Party after the Closing Date (including, without limitation, the Equity
Interests of any Special Purpose Receivables Subsidiary established 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 the Borrowers, 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 of a Loan Party be pledged to
secure Obligations of the Borrowers, and (ii) the Collateral Agent 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;


(g)           except as otherwise contemplated by
any Security Document, all documents and instruments, including Uniform
Commercial Code financing statements, and filings with the United States
Copyright Office and the United States Patent and Trademark Office, and all
other actions required by law or reasonably requested by the Collateral 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 Collateral Agent for filing, registration or the recording
concurrently with, or promptly following, the execution and delivery of each
such Security Document;


 


8

















 


(h)           on the Closing Date, the Collateral
Agent shall have received (i) counterparts of each Mortgage to be entered
into with respect to each Mortgaged Property set forth on Schedule 1.01B
duly executed and delivered by the record owner of such Mortgaged Property and
suitable for recording or filing and (ii) such other documents including,
but not limited to, any consents, agreements and confirmations of third
parties, as the Collateral Agent may reasonably request with respect to any
such Mortgage or Mortgaged Property;


(i)            on the Closing Date the Collateral
Agent shall have received (i) a policy or policies or marked-up
unconditional binder of title insurance, as applicable, paid for by the
Borrowers, issued by a nationally recognized title insurance company insuring
the Lien of each Mortgage to be entered into on the Closing Date as a valid
first Lien on the Mortgaged Property described therein, free of any other Liens
except Permitted Liens, together with such customary endorsements (including
zoning endorsements where reasonably appropriate and available), coinsurance
and reinsurance as the Collateral Agent may reasonably request, and with respect
to any such property located in a state in which a zoning endorsement is not
available, a zoning compliance letter from the applicable municipality in a
form reasonably acceptable to the Collateral Agent, and (ii) a survey of
each Mortgaged Property (including all improvements, easements and other
customary matters thereon reasonably required by the Collateral Agent), as
applicable, for which all necessary fees (where applicable) have been paid,
which is (A) dated (or redated) not earlier than six months prior to the
date of delivery thereof unless there shall have occurred within six months
prior to such date of delivery any exterior construction on the site of such
Mortgaged Property, in which event such survey shall be dated (or redated)
after the completion of such construction or if such construction shall not
have been completed as of such date of delivery, not earlier than 20 days
prior to such date of delivery, (B) certified by the surveyor (in a manner
reasonably acceptable to the Collateral Agent) to the Collateral Agent and the
title insurance company insuring the Mortgage, (C) complying in all
material respects with the minimum detail requirements of the American Land
Title Association and American Congress of Surveying and Mapping as such requirements
are in effect on the date of preparation of such survey and (D) sufficient
for such title insurance company to remove all standard survey exceptions from
the title insurance policy relating to such Mortgaged Property or otherwise
reasonably acceptable to the Collateral Agent;


(j)            evidence of the insurance required
by the terms of the Mortgages;


(k)           except as otherwise contemplated by
any Security Document, each Loan Party shall have obtained all consents and
approvals required to be obtained by it in connection with (i) the
execution and delivery of all Security Documents (or supplements thereto) to
which it is a party and the granting by it of the Liens thereunder and
(ii) the performance of its obligations thereunder; and


(l)            after the Closing Date, the
Collateral Agent shall have received (i) such other Security Documents as
may be required to be delivered pursuant to Section 5.10, and
(ii) upon reasonable request by the Collateral Agent, evidence of
compliance with any other requirements of Section 5.10.


 


9

















 


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


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


“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; 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.


“Consent Solicitation” shall mean the
solicitation by Target in connection with the Debt Tender Offer of the consent
of the holders of the Existing Senior Subordinated Notes to an amendment of
certain of the covenants of the Existing Senior Subordinated Notes Indenture.


“Consolidated Debt” at any date shall mean the
sum of (without duplication) all Indebtedness (other than letters of credit, to
the extent undrawn) consisting of Capital Lease Obligations, Indebtedness for
borrowed money, Disqualified Stock and Indebtedness in respect of the deferred
purchase price of property or services of the Borrowers and the Subsidiaries
determined on a consolidated basis on such date in accordance with GAAP.


“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 extraordinary,
nonrecurring or unusual gains or losses or income or expense or charge (less
all fees and expenses relating thereto) including, without limitation, any
severance, relocation or other restructuring expenses, and fees, expenses or
charges related to any offering of Equity Interests of Holdings, any
Investment, acquisition or Indebtedness permitted to be incurred hereunder (in
each case, whether or not successful), including any such fees, expenses,
charges or change in control payments related to the Transactions (including
any transition-related expenses incurred before, on or after the Closing Date),
in each case, shall be excluded,


(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 


 


10

















 


ordinary course of business
(as determined in good faith by the Boards of Directors of the Borrowers) 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)           (A) 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 paid in cash (or to the extent converted into cash) to the
referent person or a subsidiary thereof in respect of such period and
(B) the Net Income for such period shall include any ordinary course
dividend distribution or other payment in cash received from any person in
excess of the amounts included in clause (A),


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


(vii)         any increase in amortization or
depreciation or any non-cash charges or increases or reductions in Net Income
resulting from purchase accounting in connection with the Transactions or any
acquisition that is consummated after the Closing Date shall be excluded,


(viii)        any non-cash impairment charges
resulting from the application of Statement of Financial Accounting Standards
No. 142 and 144, and the amortization of intangibles and other fair value
adjustments arising pursuant to No. 141, shall be excluded,


(ix)           any non-cash expenses realized or
resulting from employee benefit plans or post-employment benefit plans, grants
of stock appreciation or similar rights, stock options, restricted stock grants
or other rights to officers, directors and employees of such person or any of
its subsidiaries shall be excluded,


(x)            accruals and reserves that are
established within twelve months after the Closing Date and that are so
required to be established in accordance with GAAP shall be excluded,


(xi)           non-cash gains, losses, income and
expenses resulting from fair value accounting required by Statement of
Financial Accounting Standards No. 133 shall be excluded,


(xii)          any gain, loss, income, expense or
charge resulting from the application of LIFO shall be excluded, and


(xiii)         non-cash charges for deferred tax asset
valuation allowances shall be excluded.


 


11

















 


“Consolidated Total Assets” shall mean, as of
any date, the total assets of the Borrowers and the consolidated Subsidiaries,
determined on a consolidated basis in accordance with GAAP, as set forth on the
consolidated balance sheet of the Borrowers as of such date.


“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.


“Corresponding Debt” shall have the meaning
assigned to such term in Section 8.12.


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


“Cumulative Credit” shall mean, at any date, an
amount, not less than zero in the aggregate, determined on a cumulative basis
equal to, without duplication:


(a) $50.0 million, plus:


(b) the Cumulative Retained Excess Cash Flow
Amount at such time, plus


(c) the aggregate amount of proceeds received
after the Closing Date and prior to such time that would have constituted Net
Proceeds pursuant to clause (a) of the definition thereof except for the
operation of clause (x), (y) or (z) of the second proviso thereof (the “Below
Threshold Asset Sale Proceeds”), plus


(d) the cumulative amount of proceeds (including
cash and the fair market value of property other than cash) from the sale of
Equity Interests of Holdings or any parent of Holdings after the Closing Date
and on or prior to such time (including 
upon exercise of warrants or options) which proceeds have been
contributed as common equity to the capital of the Borrowers and common Equity
Interests of the Borrowers issued upon conversion of Indebtedness (other than
Indebtedness that is contractually subordinated to the Obligations) of the
Borrowers or any Subsidiary owed to a person other than the Borrowers or a
Subsidiary not previously applied for a purpose other than use in the
Cumulative Credit; provided, that this clause (d) shall exclude
Permitted Cure Securities and the proceeds thereof, sales of Equity Interests
financed as contemplated by Section 6.04(e) and any amounts used to
finance the payments or distributions in respect of any Junior Financing
pursuant to Section 6.09(b), plus


(e) 100% of the aggregate amount of contributions
to the common capital of the Borrowers received in cash (and the fair market
value of property other than cash) after the Closing Date (subject to the same
exclusions as are applicable to clause (d) above); provided, that
the Borrowers and their Subsidiaries shall be in Pro Forma Compliance, plus


(f) the principal amount of any Indebtedness
(including the liquidation preference or maximum fixed repurchase price, as the
case may be, of any Disqualified Stock) of the Borrowers or any Subsidiary
thereof issued after the Closing Date (other than Indebtedness issued to a
Subsidiary), which has been converted into or exchanged for Equity Interests
(other than Disqualified Stock) in Holdings or any parent of Holdings, plus


 


12

















 


(g) 100% of the aggregate amount received by the
Borrowers or any Subsidiary in cash (and the fair market value of property
other than cash received by the Borrowers or any Subsidiary) after the Closing
Date from:


(A)          the sale (other than to the Borrowers
or any Subsidiary) of the Equity Interests of an Unrestricted Subsidiary, or


(B)           any dividend or other distribution by
an Unrestricted Subsidiary, plus


(h) in the event any Unrestricted Subsidiary has
been redesignated as a Subsidiary or has been merged, consolidated or
amalgamated with or into, or transfers or conveys its assets to, or is
liquidated into, Holdings, the Borrowers or any Subsidiary, the fair market
value of the Investments of Holdings, the Borrowers or any Subsidiary in such
Unrestricted Subsidiary at the time of such redesignation, combination or
transfer (or of the assets transferred or conveyed, as applicable), plus


(i) an amount equal to any returns (including
dividends, interest, distributions, returns of principal, profits on sale,
repayments, income and similar amounts) actually received by the Borrowers or
any Subsidiary in respect of any Investments made pursuant to
Section 6.04(j), minus 


(j) any amounts thereof used to make Investments
pursuant to Section 6.04(b)(y) after the Closing Date prior to such time, minus


(k) any amounts thereof used to make Investments
pursuant to Section 6.04(j)(ii) after the Closing Date prior to such time,
minus


(l) the cumulative amount of dividends paid and
distributions made pursuant to Section 6.06(e) prior to such time, minus


(m) the cumulative amount of Capital Expenditures
made pursuant to Section 6.10(c) prior to such time, minus


(n) payments or distributions in respect of Junior
Financings pursuant to Section 6.09(b)(i) (other than payments made with
proceeds from the issuance of Equity Interests that were excluded from the
calculation of the Cumulative Credit pursuant to clause (d) above);


provided, however, for purposes of Section 6.06(e),
the calculation of the Cumulative Credit shall not include any Below Threshold
Asset Sale Proceeds except to the extent they are used as contemplated in
clauses (j) and (k) above.


“Cumulative Retained Excess Cash Flow Amount”
shall mean, at any date, an amount, which shall not be not less than zero in
the aggregate, determined on a cumulative basis equal to:


(a)           the
aggregate cumulative sum of the Retained Percentage of Excess Cash Flow for all
Excess Cash Flow Periods ending after the Closing Date and prior to such date, plus


 


13

















 


(b)           for
each Excess Cash Flow Interim Period ended prior to such date but as to which
the corresponding Excess Cash Flow Period has not ended, an amount equal to the
Retained Percentage of Excess Cash Flow for such Excess Cash Flow Interim
Period, minus


(c)           the
cumulative amount of all Retained Excess Cash Flow Overfundings as of such
date.


“Cure Amount” shall have the meaning assigned
to such term in Section 7.03(b).


“Cure Right” shall have the meaning assigned to
such term in Section 7.03(b).


“Current Assets” shall mean, with respect to
the Borrowers and the Subsidiaries on a consolidated basis at any date of
determination, the sum of (a) all assets (other than cash and Permitted
Investments or other cash equivalents that would, in accordance with GAAP, be
classified on a consolidated balance sheet of the Borrowers and the
Subsidiaries as current assets at such date of determination, other than
amounts related to current or deferred Taxes based on income or profits, and
(b) in the event that a Permitted Receivables Financing is accounted for
off balance sheet, (x) gross accounts receivable comprising part of the
Receivables Assets subject to such Permitted Receivables Financing less
(y) collections against the amounts sold pursuant to clause (x).


“Current Liabilities” shall mean, with respect
to the Borrowers and the Subsidiaries on a consolidated basis at any date of
determination, all liabilities that would, in accordance with GAAP, be
classified on a consolidated balance sheet of the Borrowers and the
Subsidiaries as current liabilities at such date of determination, other than
(a) the current portion of any Indebtedness, (b) accruals of Interest
Expense (excluding Interest Expense that is due and unpaid), (c) accruals
for current or deferred Taxes based on income or profits, (d) accruals of
any costs or expenses related to (i) severance or termination of employees
prior to the Closing Date or (ii) bonuses, pension and other
post-retirement benefit obligations, and (e) accruals for add-backs to
EBITDA included in clauses (a)(iv) through (a)(vi) of the definition of
such term.


“Dalong Acquisition” means that certain
transaction contemplated by that certain Equity Acquisition Agreement among
Shanghai Electric (Group) Company, Shanghai Dalong Machinery Co., Ltd, Shanghai
General Machinery (Group) Company and RBS China Holdings, L.L.C., dated
December 16, 2005.


“Debt Service” shall mean, with respect to the
Borrowers and the Subsidiaries on a consolidated basis for any period, Cash
Interest Expense for such period plus scheduled principal amortization of
Consolidated Debt for such period.


“Debt Tender Offer” shall mean the offer to
purchase the Existing Senior Subordinated Notes made by Target on June 2,
2006.


“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.


 


14

















 


“Disqualified Stock” shall mean, with respect
to any person, any Equity Interests of such person that, by its terms (or by
the terms of any security or other Equity Interests into which it is
convertible or for which it is exchangeable), or upon the happening of any
event or condition (a) matures or is mandatorily redeemable (other than
solely for Qualified Equity Interests), pursuant to a sinking fund obligation
or otherwise (except as a result of a change of control or asset sale so long
as any rights of the holders thereof upon the occurrence of a change of control
or asset sale event shall be subject to the prior repayment in full of the
Loans and all other Obligations that are accrued and payable and the
termination of the Commitments), (b) is redeemable at the option of the
holder thereof (other than solely for Qualified Equity Interests), in whole or
in part, (c) provides for the scheduled payments of dividends in cash, or
(d) is or becomes convertible into or exchangeable for Indebtedness or any
other Equity Interests that would constitute Disqualified Stock, in each case,
prior to the date that is ninety-one (91) days after the Term Facility
Maturity Date; provided, however, that only the portion of the
Equity Interests that so mature or are mandatorily redeemable, are so
convertible or exchangeable or are so redeemable at the option of the holder
thereof prior to such date shall be deemed to be Disqualified Stock; provided
further, however, that if such Equity Interests are issued to any
employee or to any plan for the benefit of employees of the Borrowers or the
Subsidiaries or by any such plan to such employees, such Equity Interests shall
not constitute Disqualified Stock solely because they may be required to be
repurchased by the Borrowers in order to satisfy applicable statutory or
regulatory obligations or as a result of such employee’s termination, death or
disability; provided further, however, that, with respect to
clause (d) above, Equity Interests constituting Qualified Equity Interests
when issued shall not cease to constitute Qualified Equity Interests as a
result of the subsequent incurrence of Other Term Loans.


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


“Dollar Equivalent” means, at any time,
(a) with respect to any amount denominated in Dollars, such amount, and
(b) with respect to any amount denominated in any currency other than
Dollars, the equivalent amount thereof in Dollars as determined by the
Administrative Agent at such time on the basis of the Spot Rate (determined in
respect of the most recent Revaluation Date or other applicable date of
determination) for the purchase of Dollars with such currency.


“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 Borrowers
and the Subsidiaries on a consolidated basis for any period, the Consolidated
Net Income of the Borrowers and the 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 (vi) of this
clause (a) reduced such Consolidated Net Income (and were not excluded
therefrom) for the respective period for which EBITDA is being determined):


 


15

















 


(i)            provision for Taxes based on income,
profits or capital of the Borrowers and the Subsidiaries for such period,
including, without limitation, state, franchise and similar taxes,


(ii)           Interest Expense of the Borrowers and
the Subsidiaries for such period (net of interest income of the Borrowers and
their Subsidiaries for such period),


(iii)          depreciation and amortization expenses
of the Borrowers and the Subsidiaries for such period,


(iv)          business optimization expenses and
other restructuring charges (which, for the avoidance of doubt, shall include,
without limitation, the effect of inventory optimization programs, plant
closures, retention, severance, systems establishment costs and excess pension
charges); provided, that with respect to each business optimization
expense or other restructuring charge, the Borrowers shall have delivered to
the Administrative Agent an officers’ certificate specifying and quantifying
such expense or charge,


(v)           any other non-cash charges; provided,
that, for purposes of this subclause (v) of this clause (a), any
non-cash charges or losses shall be treated as cash charges or losses in any
subsequent period during which cash disbursements attributable thereto are
made,


(vi)          the amount of management, consulting,
monitoring, transaction and advisory fees and related expenses paid to the Fund
or any Fund Affiliate (or any accruals related to such fees and related
expenses) during such period; provided, that such amount shall not
exceed in any four quarter period the sum of (i) the greater of
$2.5 million and 1.5% of EBITDA, plus (ii) the amount of
deferred fees (to the extent such fees would otherwise have been permitted to
be included in clause (i) if paid, but were not included in such
clause (i)), plus (iii) 1.5% of the value of transactions
permitted hereunder and entered into by the Borrowers or any of the Subsidiaries
with respect to which the Fund or any Fund Affiliate provides any of the
aforementioned types of services, and


minus (b) the sum of (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) non-cash items increasing Consolidated Net Income of the Borrowers
and the Subsidiaries for such period (but excluding any such items (A) in
respect of which cash was received in a prior period or will be received in a
future period or (B) 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, EBITDA for the fiscal quarter ended September 30, 2005 shall be
deemed to be $50.2 million, EBITDA for the fiscal quarter ended
December 31, 2005 shall be deemed to be $51.0 million, EBITDA for the
fiscal quarter ended March 31, 2006 shall be deemed to be $64.8 million,
and EBITDA for the fiscal quarter ended June 30, 2006 shall be deemed to
be $52.1 million.


“environment” shall mean ambient and indoor
air, surface water and groundwater (including potable water, navigable water
and wetlands), the land surface or subsurface strata, 


 


16

















 


natural resources such as flora and fauna, the
workplace or as otherwise defined in any Environmental Law.


“Environmental Laws” shall mean all applicable
laws (including common law), rules, regulations, codes, ordinances, orders,
binding agreements, 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 resources, the generation, management,
Release or threatened Release of, or exposure to, any Hazardous Material or to
occupational health and safety matters (to the extent relating to the
environment or Hazardous Materials).


“Environmental Permits” shall have the meaning
assigned to such term in Section 3.16.


“Equity Financing” shall mean, in connection
with the consummation of the Merger, the contribution by the Permitted Holders,
directly or indirectly, of an aggregate amount of not less than
$475.0 million in cash, less the Rollover Amount (as defined in the Merger
Agreement), to Holdings in the form of common equity or preferred equity having
terms reasonably satisfactory to the Co-Lead Arrangers, which cash amount
shall be contributed by Holdings to the Borrowers as cash common equity.


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


“ERISA” shall mean the Employee Retirement
Income Security Act of 1974, as the same may be amended from time to time and
any final regulations promulgated and the rulings issued thereunder.


“ERISA Affiliate” shall mean any trade or
business (whether or not incorporated) that, together with Holdings, the
Borrowers 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 or the requirements of Section 4043(b) of ERISA apply with respect
to a Plan; (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 Borrowers, a Subsidiary or any ERISA Affiliate of any liability
under Title IV of ERISA with respect to the termination of any Plan or
Multiemployer Plan; (e) the receipt by Holdings, the Borrowers, a
Subsidiary or any ERISA Affiliate from the PBGC or a plan administrator of any
notice relating 


 


17

















 


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 Borrowers, a Subsidiary or any ERISA Affiliate of
any liability with respect to the withdrawal or partial withdrawal from any
Plan or Multiemployer Plan; (g) the receipt by Holdings, the Borrowers, a
Subsidiary or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from Holdings, the Borrowers, a Subsidiary or any ERISA Affiliate
of any notice, concerning the impending 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; (h) the conditions for imposition of a
lien under Section 302(f) of ERISA shall have been met with respect to any
Plan; or (i) the adoption of an amendment to a Plan requiring the
provision of security to such Plan pursuant to Section 307 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.


“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 Borrowers and their Subsidiaries on a
consolidated basis for any Applicable Period, EBITDA of the Borrowers and their
Subsidiaries on a consolidated basis for such Applicable Period, minus,
without duplication,


(a)           Debt Service
for such Applicable Period,


(b)           the amount of any
voluntary prepayment permitted hereunder of term Indebtedness during such
Applicable Period (other than any voluntary prepayment of the Loans, which
shall be the subject of Section 2.11(c)), so long as the amount of such
prepayment is not already reflected in Debt Service,


(c)           (i) Capital
Expenditures by the Borrowers and the Subsidiaries on a consolidated basis
during such Applicable Period that are paid in cash (to the extent permitted
under this Agreement) and (ii) the aggregate consideration paid in cash
during the Applicable Period in respect of Permitted Business Acquisitions and
other Investments permitted hereunder less any amounts received in
respect thereof as a return of capital,


 


18

















 


(d)           Capital Expenditures
that the Borrowers or any Subsidiary shall, during such Applicable Period,
become obligated to make but that are not made during such Applicable Period
(to the extent permitted under this Agreement); provided, that
(i) Holdings shall deliver a certificate to the Administrative Agent not
later than 90 days after the end of such Applicable Period, signed by a
Responsible Officer of the Borrowers and certifying that such Capital
Expenditures and the delivery of the related equipment will be made in the
following Applicable Period, and (ii) any amount so deducted shall not be
deducted again in a subsequent Applicable Period,


(e)           Taxes paid in
cash by Holdings and its Subsidiaries on a consolidated basis during such
Applicable Period or that will be paid within six months after the close of
such Applicable Period; provided, that with respect to any such amounts
to be paid after the close of such Applicable Period, (i) any amount so
deducted shall not be deducted again in a subsequent Applicable Period, and
(ii) appropriate reserves shall have been established in accordance with
GAAP,


(f)            an amount equal
to any increase in Working Capital of the Borrowers and their Subsidiaries for
such Applicable Period,


(g)           cash
expenditures made in respect of Swap Agreements during such Applicable Period,
to the extent not reflected in the computation of EBITDA or Interest Expense,


(h)           permitted
dividends or distributions or repurchases of its Equity Interests paid in cash
by the Borrowers during such Applicable Period and permitted dividends paid by
any Subsidiary to any person other than Holdings, the Borrowers or any of the
Subsidiaries during such Applicable Period, in each case in accordance with
Section 6.06 (other than Section 6.06(e)),


(i)            amounts paid in
cash during such Applicable Period on account of (A) 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 Borrowers and their Subsidiaries in a prior Applicable Period and
(B) reserves or accruals established in purchase accounting,


(j)            to the extent
not deducted in the computation of Net Proceeds in respect of any asset
disposition or condemnation giving rise thereto, the amount of any mandatory
prepayment of Indebtedness (other than Indebtedness created hereunder or under
any other Loan Document), together with any interest, premium or penalties
required to be paid (and actually paid) in connection therewith, and


(k)           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 to the extent such items represented a cash
payment (which had not reduced Excess Cash Flow upon the accrual thereof in a
prior Applicable Period), or an accrual for a cash payment, by the Borrowers
and their Subsidiaries or did not represent cash received by the Borrowers and
their 


 


19

















 


Subsidiaries, in each case
on a consolidated basis during such Applicable Period,


plus, without duplication,


(a)           an amount equal
to any decrease in Working Capital for such Applicable Period,


(b)           all amounts
referred to in clauses (b), (c) and (d) above to the extent funded with
the proceeds of the issuance or the incurrence of Indebtedness (including
Capital Lease Obligations and purchase money Indebtedness, but excluding,
solely as relating to Capital Expenditures, proceeds of Revolving Facility
Loans), the sale or issuance of any Equity Interests (including any capital
contributions) and 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, in each case to the extent there is a corresponding deduction from
Excess Cash Flow above,


(c)           to the extent
any permitted Capital Expenditures referred to in clause (d) above and the
delivery of the related equipment do not occur in the following Applicable
Period of the Borrowers specified in the certificate of the Borrowers provided
pursuant to clause (d) above, the amount of such Capital Expenditures that
were not so made in such following Applicable Period,


(d)           cash payments
received in respect of Swap Agreements during such Applicable Period to the
extent (i) not included in the computation of EBITDA or (ii) such
payments do not reduce Cash Interest Expense,


(e)           any
extraordinary or nonrecurring gain realized in cash during such Applicable
Period (except to the extent such gain consists of Net Proceeds subject to
Section 2.11(b)),


(f)            to the extent
deducted in the computation of EBITDA, cash interest income, 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
(i) such items represented cash received by the Borrowers or any Subsidiary or
(ii) such items do not represent cash paid by the Borrowers or any Subsidiary,
in each case on a consolidated basis during such Applicable Period.


“Excess Cash
Flow Interim Period” shall mean, (x) during any Excess Cash Flow
Period, any one-, two-, or three-quarter period (a) commencing
on the later of (i) the end of the immediately preceding Excess Cash Flow
Period and (ii) if applicable, the end of any prior Excess Cash Flow
Interim Period occurring during the same Excess Cash Flow Period and
(b) ending on the last day of the most recently ended fiscal quarter
(other than the last day of the Fiscal Year) during such Excess Cash Flow
Period for which financial statements are available 


 


20

















 


and (y) during the
period from the Closing Date until the beginning of the first Excess Cash Flow
Period, any period commencing on the Closing Date and ending on the last day of
the most recently ended fiscal quarter for which financial statements are
available.


“Excess Cash Flow Period” shall mean each
fiscal year of the Borrowers, commencing with the fiscal year of the Borrowers
ending on March 31, 2008.


“Exchange Act” means the Securities Exchange
Act of 1934, as amended.


“Excluded Indebtedness” shall mean all
Indebtedness permitted to be incurred under Section 6.01 (other than
Section 6.01(v)).


“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 Borrowers
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 or locality 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 and (c) in the case of a Lender making a Loan to any
Borrower, any withholding tax (including any backup withholding tax) imposed by
the United States (or the jurisdiction under the laws of which such Lender is
organized or in which its principal office is located or in which its
applicable lending office is located or any other jurisdiction as a result of
such Lender engaging in a trade or business in such jurisdiction for tax
purposes) that (x) is in effect and would apply to amounts payable
hereunder to such Lender at the time such Lender becomes a party to such Loan
to such 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) with respect to such Loan.


“Existing Credit Agreement” shall mean the
Amended and Restated Credit Agreement, among Target, Rexnord, the lenders party
thereto from time to time, Deutsche Bank Trust Company Americas, as
administrative agent, General Electric Capital Corporation and Wachovia Bank,
National Association, as co-documentation agents, and Deutsche Bank
Securities Inc. and Credit Suisse, as joint lead arrangers and joint book
runners, dated as of May 16, 2005, as amended, restated, supplemented or
otherwise modified from time to time.


“Existing Senior Subordinated Notes” shall mean
Rexnord’s 10.125% senior subordinated notes due 2012, issued pursuant to the
Existing Senior Subordinated Notes Indenture.


“Existing Senior Subordinated Notes Indenture”
shall mean the indenture dated as of November 25, 2002 under which the Existing Senior Subordinated Notes
were issued, among Rexnord and certain of the subsidiaries party thereto and
the trustee named therein, as amended, restated, supplemented or otherwise
modified from time to time.


 


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 B Facility and the Revolving Facility
(and no Incremental Revolving Facility Commitments), and thereafter, may
include the Incremental Term Facility and Incremental Revolving Facility
Commitments.


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


“Fee Letter” shall mean that certain Fee Letter
dated May 22, 2006 by and
among Merger Sub, Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Merrill Lynch Capital Corporation, Credit Suisse Securities (USA) LLC, Credit
Suisse, Bear, Stearns & Co. Inc., Bear Stearns Corporate Lending Inc.,
Lehman Commercial Paper Inc. and Lehman Brothers Inc.


“Fees” shall mean the 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.


“Financial Performance Covenant” shall mean the
covenant of the Borrowers set forth in Section 6.11.


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


“Foreign Pledge Agreement” shall mean a pledge
agreement with respect to the Pledged Collateral that constitutes Equity
Interests of a “first tier” Foreign Subsidiary, in form and substance
reasonably satisfactory to the Administrative Agent; provided, that in
no event shall more than 65% of the issued and outstanding voting Equity
Interests of such Foreign Subsidiary be pledged to secure Obligations of the
Borrowers.


“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.


“Fund” shall have the meaning assigned to such
term in the first recital hereto.


 


22

















 


“Fund Affiliate” shall mean (i) each
Affiliate of the Fund that is neither a “portfolio company” (which means a
company actively engaged in providing goods or services to unaffiliated
customers), whether or not controlled, nor a company controlled by a “portfolio
company” and (ii) any individual who is a partner or employee of Apollo
Management, L.P., Apollo Management IV, L.P. or Apollo Management V, L.P.


“GAAP” shall mean generally accepted accounting
principles in effect from time to time in the United States, applied on a
consistent basis, subject to the provisions of Section 1.02; provided
that any reference to the application of GAAP in Sections 3.13(b), 3.20,
5.03, 5.07 and 6.02(e) to a Foreign Subsidiary (and not as a consolidated
Subsidiary of the Borrowers) shall mean generally accepted accounting
principles in effect from time to time in the jurisdiction of organization of
such Foreign Subsidiary.


“German Security” shall mean the assets that
are the subject of that certain Share Pledge Agreement relating to shares in
Rexnord Germany Holdings GmbH dated July 21, 2006 between RBS Acquisition
Corporation, as Pledgor and Merrill Lynch Capital Corporation, as
Administrative Agent, which is governed by German law.  Each Lender hereby authorizes (bevollmaechtigt) the Collateral Agent to accept, as its
representative (Stellvertreter), any German
Security created in favor of such Lender.


“Governmental Authority” shall mean any
federal, state, local or foreign court or governmental agency, authority,
instrumentality or regulatory or legislative body.


“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 or
other obligation (or any existing right, contingent or otherwise, of the holder
of Indebtedness or other obligation to be secured by such a Lien) of any other
person, whether or not such Indebtedness or other obligation is assumed by the
guarantor; provided, however, the term “Guarantee” shall not
include endorsements of instruments for deposit or collection 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 by this Agreement (other than such obligations
with respect to Indebtedness).  The
amount of any Guarantee shall be 


 


23

















 


deemed to be an amount equal to the stated or
determinable amount of the Indebtedness in respect of which such Guarantee is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such person is required to perform
thereunder) as determined by such person in good faith.


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


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


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


“Honeywell Receivables Transaction” shall mean
the sale without recourse of accounts receivable and related assets arising
from goods and services provided to Honeywell International Inc. pursuant to
factoring arrangements entered into in the ordinary course of business.


“Immaterial Subsidiary” shall mean any
Subsidiary that (a) did not, as of the last day of the fiscal quarter of
the Borrowers most recently ended, have assets with a value in excess of 5.0%
of the Consolidated Total Assets or revenues representing in excess of 5.0% of
total revenues of the Borrowers and the Subsidiaries on a consolidated basis as
of such date, and (b) taken together with all Immaterial Subsidiaries as
of the last day of the fiscal quarter of the Borrowers most recently ended, did
not have assets with a value in excess of 10% of Consolidated Total Assets or
revenues representing in excess of 10% of total revenues of the Borrowers and
the Subsidiaries on a consolidated basis as of such date.  Each Immaterial Subsidiary shall be set forth
in Schedule 1.01C, and the Borrowers shall update such Schedule
from time to time after the Closing Date as necessary to reflect all Immaterial
Subsidiaries at such time (the selection of Subsidiaries to be added to or
removed from such Schedule to be made as the Borrowers may determine).


“Increased Amount Date” shall have the meaning
assigned to such term in Section 2.21.


“Incremental Amount” shall mean, at any time,
the excess, if any, of (a) $200.0 million over (b) the
aggregate amount of all Incremental Term Loan Commitments and Incremental
Revolving Facility Commitments established prior to such time pursuant to
Section 2.21.


“Incremental Assumption Agreement” shall mean
an Incremental Assumption Agreement in form and substance reasonably
satisfactory to the Administrative Agent, among the Borrowers, the
Administrative Agent and one or more Incremental Term Lenders and/or
Incremental Revolving Facility Lenders.


 


24

















 


“Incremental Revolving Facility Commitment”
shall mean any increased or incremental Revolving Facility Commitment provided
pursuant to Section 2.21.


“Incremental Revolving Facility Lender” shall
mean a Lender (including an Incremental Revolving Facility Lender) with a
Revolving Facility Commitment or an outstanding Revolving Facility Loan as a
result of an Incremental Revolving Facility Commitment.


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


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


“Incremental Term Facility Maturity Date” shall
mean, with respect to any tranche of Incremental Term Loans established
pursuant to an Incremental Assumption Agreement, the maturity date for such
tranche as set forth in such Incremental Assumption Agreement.


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


“Incremental Term Loan Commitment” shall mean
the commitment of any Lender, established pursuant to Section 2.21, to
make Incremental Term Loans to the Borrowers.


“Incremental Term Loan Installment Date” shall
have, with respect to any tranche of Incremental Term Loans established
pursuant to an Incremental Assumption Agreement, the meaning assigned to such
term in Section 2.10(a)(ii).


“Incremental Term Loans” shall mean Term Loans
made by one or more Lenders to the Borrowers pursuant to Section 2.01(c).  Incremental Term Loans may be made in the
form of additional Term B Loans or, to the extent permitted by
Section 2.21 and provided for in the relevant Incremental Assumption
Agreement, Other Term Loans.


“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, (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, 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 Capital Lease
Obligations of such person, (f) 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,
(g) the principal component of all obligations, contingent or otherwise,
of such person as an account party in respect of letters of credit,
(h) the principal component of all obligations of such person in respect
of bankers’ acceptances, (i) all Guarantees by such person of Indebtedness
described in clauses (a) to (h) above) and (j) the amount of all
obligations of such person with respect to the redemption, repayment or other
repurchase of any 


 


25

















 


Disqualified Stock (excluding accrued dividends that
have not increased the liquidation preference of such Disqualified Stock); provided,
that Indebtedness shall not include (A) trade payables, accrued expenses
and intercompany liabilities arising in the ordinary course of business,
(B) prepaid or deferred revenue arising in the ordinary course of
business, (C) purchase price holdbacks arising in the ordinary course of
business in respect of a portion of the purchase prices of an asset to satisfy
unperformed obligations of the seller of such asset or (D) earn-out
obligations until such obligations become a liability on the balance sheet of
such person in accordance with GAAP. 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.  To the extent not otherwise included,
Indebtedness shall include the amount of any Receivables Net Investment.


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


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


“Industrial Chain Business” shall mean the
engineered chain, roller chain, leaf chain and conveying equipment (including
sprockets, accessories and conveyor components that are complementary to such
chain and conveying equipment products) business of the Borrowers and their
Subsidiaries.


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


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


“Interest Election Request” shall mean a
request by the applicable 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 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, (b) capitalized interest
of such person, and (c) commissions, discounts, yield and other fees and
charges incurred in connection with any Permitted Receivables Financing which
are payable to any person other than the Borrowers or a Subsidiary Loan
Party.  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 Borrowers and the
Subsidiaries with respect to Swap Agreements.


“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 


 


26

















 


any refinancing or conversion of such Borrowing with
or to a Borrowing of a different Type, (b) with respect to any ABR Loan,
the last day of each calendar quarter, or if any such day is not a Business
Day, on the next succeeding Business Day and (c) with respect to any
Swingline Loan, the day that such Swingline Loan is required to be repaid
pursuant to Section 2.09(a).


“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
at the time of the relevant Borrowing, all Lenders make interest periods of such
length available), as the applicable 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, 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 Credit Suisse 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.


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


“Junior Capital” means any Permitted Cure
Securities and any Junior Indebtedness incurred by Holdings, the Borrowers or
any of their Subsidiaries.


“Junior Financing” shall have the meaning
assigned to such term in Section 6.09(b).


“Junior Indebtedness” means Indebtedness of
Holdings, the Borrowers or any of their Subsidiaries that (a) is expressly
subordinated to the prior payment in full in cash of the Obligations (and any
related Guarantees) on terms reasonably satisfactory to the Administrative
Agent (it being understood that the subordination terms of the Senior
Subordinated Notes Documents are so satisfactory), (b) provides that
interest in respect of such Indebtedness shall not be payable in cash,
(c) has a final maturity date that is not earlier than the Term Facility
Maturity Date and has no scheduled payments of principal thereon (including
pursuant to a sinking fund obligation or mandatory redemption obligations (other
than pursuant to customary provisions relating to redemption or repurchase upon
change of control or sale of assets)) prior to such final maturity date and
(d) is not subject to covenants, events of default and remedies that, 


 


27

















 


in the aggregate, are more onerous to Holdings or the
Borrowers, as the case may be, than the terms of this Agreement; provided
that such Indebtedness shall not be subject to any financial maintenance
covenants; provided, further that Indebtedness constituting Junior
Indebtedness when incurred shall not cease to constitute Junior Indebtedness as
a result of the subsequent incurrence of Other Term Loans.


“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 pursuant to Section 9.04 or Section 2.21.


“Lender Default” shall mean (i) the
refusal (which has not been retracted) 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), or (ii) a Lender having notified in
writing the Borrowers 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, including any Alternate Currency
Letter of Credit, Trade Letter of Credit or Standby Letter of Credit.


“Letter of Credit Commitment” shall mean, with
respect to each Issuing Bank, the commitment of such Issuing Bank to issue
Letters of Credit pursuant to Section 2.05.


“Letter of Credit Sublimit” shall mean the
aggregate Letter of Credit Commitments of the Issuing Banks, in an amount not
to exceed $40.0 million (or the equivalent thereof in an Alternate
Currency).


“LIBO Rate” shall mean, with respect to any
Eurocurrency Borrowing for any Interest Period, the rate appearing on
Page 3750 of the Telerate Service (or on any successor or substitute page
of such service, or any successor to or substitute for such service, providing
rate quotations comparable to these currently provided or on such page of such
service, as determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to Dollar
deposits in the London interbank market) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period, for Dollar deposits (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period; provided that if
such rate is not available at such time for any reason, then the “LIBO Rate”
for such Interest Period shall be the rate per annum determined by the 


 


28

















 


Administrative Agent to be the rate at which deposits
in Dollars for delivery on the first day of such Interest Period in same day
funds in the approximate amount of the Eurocurrency Rate Loan being made,
continued or converted by the Administrative Agent and with a term equivalent
to such Interest Period would be offered by the principal London office of the
Administrative Agent to major banks in the London interbank Eurocurrency market
at their request at approximately 11:00 a.m. (London time) two Business
Days prior to the commencement of such Interest Period.


“Lien” shall mean, with respect to any asset,
(a) any mortgage, deed of trust, lien, hypothecation, pledge, charge,
security interest or similar encumbrance 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
Letters of Credit, the Security Documents and any Note issued under
Section 2.09(e), and solely for the purposes of Sections 4.02 and
7.01 hereof, the Fee Letter.


“Loan Parties” shall mean Holdings, the
Borrowers and the Subsidiary Loan Parties.


“Loans” shall mean the Term B Loans, the
Incremental Term Loans (if any), the Revolving Facility Loans and the Swingline
Loans.


“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 Group” means the group consisting
of the directors, executive officers and other management personnel of the
Borrowers and Holdings, as the case may be, on the Closing Date together with
(a) any new directors whose election by such boards of directors or whose
nomination for election by the shareholders of the Borrowers or Holdings, as
the case may be, was approved by a vote of a majority of the directors of the
Borrowers or Holdings, as the case may be, then still in office who were either
directors on the Closing Date or whose election or nomination was previously so
approved and (b) executive officers and other management personnel of the
Borrowers or Holdings, as the case may be, hired at a time when the directors
on the Closing Date together with the directors so approved constituted a
majority of the directors of the Borrowers or Holdings, as the case may be.


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


“Material Adverse Effect” shall mean a material
adverse effect on the business, property, operations or condition of the Borrowers
and their Subsidiaries, taken as a whole, or the validity or enforceability of
any of the Loan Documents or the rights and remedies of the Administrative
Agent and the Lenders thereunder; provided, however, that solely
for purposes of 


 


29

















 


determining whether the condition in
Section 4.01(b) has been satisfied in connection with the first Credit
Event on the Closing Date, any reference to “Material Adverse Effect” in any of
the representations and warranties referred to in Section 4.01(b) shall
mean, and shall be limited to, a material adverse effect on the business,
results of operations or condition (financial or other) of Target and its
subsidiaries, taken as a whole (a “Target MAE”); provided, however, that in no
event shall any of the following, alone or in combination, be deemed to
constitute, nor shall any of the following (including the effect of any of the
following) be taken into account determining whether there has been or will be
a Target MAE:  (A) any change in
economic, business or financial market conditions generally, to the extent that
such change does not disproportionately affect Target and its subsidiaries,
taken as a whole, relative to other participants in Target’s and its subsidiaries’
industry, (B) any change generally affecting any of the industries in
which Target or its subsidiaries operates, to the extent that such change does
not disproportionately affect Target and its subsidiaries, taken as a whole,
relative to other participants in such industries, (C) the announcement or
the execution of the Merger Agreement or the pendency or consummation of the
merger contemplated thereby, (D) the compliance with the terms of the
Merger Agreement or the taking of any action required by the Merger Agreement
or (E) any acts of terrorism or war, to the extent that such acts do not
disproportionately affect Target and its subsidiaries, taken as a whole,
relative to any other entity.


 “Material
Indebtedness” shall mean Indebtedness (other than Loans and Letters of
Credit) of any one or more of Holdings, the Borrowers or any Subsidiary in an
aggregate principal amount exceeding $20.0 million.


“Material Subsidiary” shall mean any Subsidiary
other than an Immaterial Subsidiary.


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


“Merger” shall have the meaning assigned to
such term in the first recital hereto.


“Merger Agreement” shall have the meaning
assigned to such term in the first recital hereto.


“Merger Documents” shall mean the collective
reference to the Merger Agreement, all material exhibits and schedules thereto
and all agreements expressly contemplated thereby.


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


“Mortgaged Properties” shall mean the Real
Properties owned in fee by the Loan Parties that are set forth on Schedule 1.01B
and each additional Real Property encumbered by a Mortgage pursuant to
Section 5.10.


“Mortgages” shall mean, collectively, the
mortgages, trust deeds, deeds of trust, deeds to secure debt, assignments of
leases and rents, and other security documents delivered with respect to
Mortgaged Properties, each substantially in the form of Exhibit F
(with such changes as are reasonably consented to by the Administrative Agent
to account for local law matters), as amended, supplemented or otherwise
modified from time to time.


 


30

















 


“Multiemployer Plan” shall mean a multiemployer
plan as defined in Section 4001(a)(3) of ERISA to which the Borrowers,
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)           100% of the
cash proceeds actually received by the Borrowers or any Subsidiary Loan Party
(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 Asset Sale (other
than those pursuant to Section 6.05(a), (b), (c), (d) (except as
contemplated by Section 6.03(b)(ii)), (e), (f), (h), (i) or (j)), 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, required debt payments and
required payments of other obligations relating to the applicable asset to the
extent such debt or obligations are secured by a Lien permitted hereunder
(other than pursuant to the Loan Documents) on such asset, other customary
expenses and brokerage, consultant and other customary fees actually incurred
in connection therewith, (ii) Taxes paid or payable as a result thereof,
and (iii) the amount of any reasonable reserve established in accordance
with GAAP against any adjustment to the sale price or any liabilities (other
than any taxes deducted pursuant to clause (i) or (ii) above)
(x) related to any of the applicable assets and (y) retained by the
Borrowers or any of the Subsidiaries including, without limitation, pension and
other post-employment benefit liabilities and liabilities related to
environmental matters or against any indemnification obligations (however, the
amount of any subsequent reduction of such reserve (other than in connection
with a payment in respect of any such liability) shall be deemed to be Net
Proceeds of such Asset Sale occurring on the date of such reduction); provided,
that, if no Event of Default exists and Holdings or the Borrowers shall deliver
a certificate of a Responsible Officer of Holdings or the Borrowers to the
Administrative Agent promptly following receipt of any such proceeds setting
forth Holdings’ or the Borrowers’ intention to use any portion of such
proceeds, to acquire, maintain, develop, construct, improve, upgrade or repair
assets useful in the business of the Borrowers and the Subsidiaries or to make
investments in Permitted Business Acquisitions, in each case within
15 months of such receipt, such portion of such proceeds shall not
constitute Net Proceeds except to the extent not, within 15 months of such
receipt, so used or contractually committed to be so used (it being understood
that if any portion of such proceeds are not so used within such 15-month
period but within such 15-month period are contractually committed to be
used, then upon the termination of such contract, such remaining portion shall
constitute Net Proceeds as of the date of such termination or expiry without
giving effect to this proviso); provided, further, that (x) no proceeds 


 


31

















 


realized in a single
transaction or series of related transactions shall constitute Net Proceeds
unless such proceeds shall exceed $5.0 million and (y) no proceeds
shall constitute Net Proceeds in any fiscal year until the aggregate amount of
all such proceeds in such fiscal year shall exceed $10.0 million, and
(z) at any time during the 15-month reinvestment period contemplated
by the immediately preceding proviso, if Holdings or the Borrowers shall
deliver a certificate of a Responsible Officer of Holdings or the Borrowers to
the Administrative Agent certifying that on a Pro Forma Basis after giving
effect to the Asset Sale and the application of the proceeds thereof, the Total
Senior Secured Bank Leverage Ratio is less than or equal to 2.25 to 1.00, up to
$100.0 million of such proceeds shall not constitute Net Proceeds; and


(b)           100% of the
cash proceeds from the incurrence, issuance or sale by the Borrowers or any
Subsidiary Loan Party of any Indebtedness (other than Excluded Indebtedness),
net of all taxes and fees (including investment banking fees), commissions,
costs and other expenses, in each case incurred in connection with such
issuance or sale.


For purposes of calculating the amount of Net
Proceeds, fees, commissions and other costs and expenses payable to Holdings or
the Borrowers or any Affiliate of either of them shall be disregarded, except
for financial advisory fees customary in type and amount paid to Affiliates of
the Fund and otherwise not prohibited from being paid hereunder.


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


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


“Obligations” shall, unless otherwise
indicated, have the meaning assigned to the term “Loan Document Obligations” in
the Collateral Agreement.


“Other Taxes” shall mean any and all present or
future stamp or documentary taxes or any other excise, transfer, sales,
property, intangible, mortgage recording or similar taxes, charges or 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 (but not Excluded Taxes).


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


“Overdraft Line” shall have the meaning
assigned to such term in Section 6.01(w).


“Parallel Debt” shall have the meaning assigned
to such term in Section 8.12(b).


“Parent Entity”
means any direct or indirect parent of Holdings.


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


 


32

















 


“PBGC” shall mean the Pension Benefit Guaranty
Corporation referred to and defined in ERISA.


“Perfection Certificate” shall mean the
Perfection Certificate with respect to Borrowers and the other Loan Parties in
a form reasonably satisfactory to the Administrative Agent.


“Permitted Additional Debt” shall mean any
Indebtedness for borrowed money (a) for which the average life to maturity
of such Permitted Additional Debt is greater than or equal to the remaining
weighted average life to maturity of the Term B Loans and (b) that
does not have a stated maturity prior to the date that is 91 days after
the Term Facility Maturity Date; provided that Indebtedness constituting
Permitted Additional Debt when incurred shall not cease to constitute Permitted
Additional Debt as a result of the subsequent incurrence of Other Term Loans.


“Permitted Business Acquisition” shall mean any
acquisition of all or substantially all the assets of, or all the Equity
Interests (other than directors’ qualifying shares) in, a person or division or
line of business of a person (or any subsequent investment made in a person,
division or line of business previously acquired in a Permitted Business
Acquisition), if immediately after giving effect thereto:  (i) no Event of Default shall have
occurred and be continuing or would result therefrom; (ii) all transactions
related thereto shall be consummated in accordance with applicable laws;
(iii) with respect to any such acquisition or investment with a fair
market value in excess of $10.0 million, the Borrowers and their
Subsidiaries shall be in Pro Forma Compliance after giving effect to such acquisition
or investment and any related transactions; (iv) any acquired or newly
formed Subsidiary shall not be liable for any Indebtedness except for
Indebtedness permitted by Section 6.01; (v) to the extent required by
Section 5.10, any person acquired in such acquisition, if acquired by the
Borrowers or a Domestic Subsidiary, shall be merged into the Borrowers or a
Subsidiary Loan Party or become upon consummation of such acquisition a
Subsidiary Loan Party, and (vi) the aggregate amount of such acquisitions
and  investments in assets that are not
owned by the Borrowers or Subsidiary Loan Parties or in Equity Interests in
Subsidiary Loan Parties or persons that become Subsidiary Loan Parties upon
consummation of such acquisition shall not exceed the greater of (x) 5.0%
of Consolidated Total Assets and (y) $100.0 million.


“Permitted Cure Securities” shall mean any
Equity Interests of Holdings other than Disqualified Stock, and upon which all
dividends or distributions (if any) shall, prior to 91 days after the Term
Facility Maturity Date, be payable solely in additional shares of such Equity
Interests; provided that Equity Interests constituting Permitted Cure
Securities when issued shall not cease to constitute Permitted Cure Securities
as a result of the subsequent incurrence of Other Term Loans.


“Permitted Holder” shall mean each of
(i) the Fund and the Fund Affiliates, and (ii) the Management Group.


 


33

















 


“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);


(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 (other than an Affiliate of any Borrower) 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-1 (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
$5,000.0 million;


(h)           time deposit
accounts, certificates of deposit and money market deposits in an aggregate
face amount not in excess of 0.5% of the total assets of the Borrowers and the
Subsidiaries, on a consolidated basis, as of the end of the Borrowers’ most
recently completed fiscal year; and


(i)            instruments
equivalent to those referred to in clauses (a) through (h) above
denominated in any foreign currency comparable in credit quality and tenor to
those referred to above and commonly used by corporations for cash management
purposes in 


 


34

















 


any jurisdiction outside the
United States to the extent reasonably required in connection with any business
conducted by any Subsidiary organized in such jurisdiction.


“Permitted
Liens” shall have the meaning assigned to such term in Section 6.02.


“Permitted Ratio Debt” shall mean secured or
unsecured debt issued by Holdings, the Borrowers or the Subsidiary Loan
Parties, (i) if secured, the Liens with respect to which are subordinated
to the Liens securing the Obligations pursuant to an intercreditor agreement in
form and substance reasonably satisfactory to the Administrative Agent,
(ii) the terms of which do not provide for a stated maturity date prior to
the date that is 91 days after the Term 
Facility Maturity Date, (iii) the covenants, events of default,
Subsidiary guarantees and other terms of which (other than interest rate and
redemption premiums), taken as a whole, either (x) are not more
restrictive to the Borrowers and their Subsidiaries than the terms of the
Senior Unsecured Note Documents, or (y) if more restrictive, the Loan
Documents are amended to contain such more restrictive terms; provided
that Indebtedness constituting Permitted Ratio Debt when incurred shall not
cease to constitute Permitted Ratio Debt as a result of the subsequent
incurrence of Other Term Loans.


“Permitted Receivables Documents” shall mean
all documents and agreements evidencing, relating to or otherwise governing a
Permitted Receivables Financing.


“Permitted Receivables Financing” shall mean
(a) the Honeywell Receivables Transaction and (b) one or more
transactions pursuant to which (i) Receivables Assets or interests therein
are sold to or financed by one or more Special Purpose Receivables
Subsidiaries, and (ii) such Special Purpose Receivables Subsidiaries finance
their acquisition of such Receivables Assets or interests therein, or the
financing thereof, by selling or borrowing against Receivables Assets; provided,
that (A) recourse to the Borrowers or any Subsidiary (other than the
Special Purpose Receivables Subsidiaries) in connection with such transactions
shall be limited to the extent customary for similar transactions in the
applicable jurisdictions (including, to the extent applicable, in a manner
consistent with the delivery of a “true sale”/”absolute transfer” opinion with
respect to any transfer by the Borrowers or any Subsidiary (other than a
Special Purpose Receivables Subsidiary), (B) the aggregate Receivables Net
Investment outstanding shall not exceed $100.0 million at any time and
(C) the Receivables Net Investment outstanding with respect to the
Honeywell Receivables Transaction shall not exceed $1.5 million at any
time.


“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 and underwriting discounts, fees,
commissions and expenses), (b) except with respect to
Section 6.01(i), the average life to maturity of such Permitted
Refinancing Indebtedness is greater than or equal to the earlier of
(i) the weighted average life to maturity of the Indebtedness being
Refinanced and (ii) 90 days after the Term Facility Maturity Date,
(c) if the Indebtedness being Refinanced is subordinated in 


 


35

















 


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, (d) no Permitted Refinancing Indebtedness shall have different
obligors, or greater guarantees or security, than the Indebtedness being
Refinanced and (e) if the Indebtedness being Refinanced is secured by any
collateral (whether equally and ratably with, or junior to, the Secured Parties
or otherwise), such Permitted Refinancing Indebtedness may be secured by such
collateral (including in respect of working capital facilities of Foreign
Subsidiaries otherwise permitted under this Agreement only, any collateral
pursuant to after-acquired property clauses to the extent any such collateral
secured the Indebtedness being Refinanced) on terms no less favorable to the
Secured Parties than those contained in the documentation governing the
Indebtedness being Refinanced; provided  further, that with respect
to a Refinancing of (x) the Senior Subordinated Notes or Permitted
Additional Debt that are subordinated, such Permitted Refinancing Indebtedness
shall (i) be subordinated to the guarantee by Holdings and the Subsidiary Loan
Parties of the Facilities, and (ii) be otherwise on terms not materially less
favorable to the Lenders than those contained in the documentation governing
the Indebtedness being refinanced, and (y) the Senior Subordinated Notes
or Permitted Additional Debt, such Permitted Refinancing Indebtedness shall
meet the requirements of the definition of “Permitted Additional Debt”; provided
further, that Indebtedness constituting Permitted Refinancing Debt shall
not cease to constitute Permitted Refinancing Debt as a result of the
subsequent incurrence of Other Term Loans.


“person” shall mean any natural person,
corporation, business trust, joint venture, association, company, partnership,
limited liability company or government, individual or family trusts, or any
agency or political subdivision thereof.


“Plan” shall mean any employee pension benefit
plan (other than a Multiemployer Plan) that is (i) subject to the
provisions of Title IV of ERISA or Section 412 of the Code or
Section 302 of ERISA, (ii) sponsored or maintained (at the time of determination
or at any time within the five years prior thereto) by Holdings, the Borrowers
or any ERISA Affiliate, and (iii) in respect of which Holdings, the
Borrowers, 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 9.18.


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


 


36

















 


“Pricing Grid” shall mean the tables set forth
below:


Pricing Grid for
Revolving Facility Loans and Swingline Loans


	
  Total Senior 

  Secured Bank 

  Leverage Ratio

  	
   

  	
  Applicable Margin for ABR Revolving Facility Loans and Swingline
  Loans

  	
   

  	
  Applicable Margin for Eurocurrency Revolving Facility Loans

  	
   

  	
  Applicable 

  Commitment Fee

  	
   

  
	
  Greater than or equal to 2.50 to 1.0

  	
   

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  	
  0.50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less than 2.50 to 1.0, but greater than or equal to 2.00 to 1.0

  	
   

  	
  1.00

  	
  %

  	
  2.00

  	
  %

  	
  0.50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less than 2.00 to 1.0 but greater than or equal to 1.50 to 1.0

  	
   

  	
  0.75

  	
  %

  	
  1.75

  	
  %

  	
  0.50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less than 1.50 to 1.0

  	
   

  	
  0.50

  	
  %

  	
  1.50

  	
  %

  	
  0.375

  	
  %

  



 


Pricing Grid for
Term B Loans


	
  Corporate Credit Ratings
  (Moody’s/S&P)

  	
   

  	
  Applicable Margin for ABR Term Loans

  	
   

  	
  Applicable Margin for Eurocurrency Term Loans

  	
   

  
	
  B1 or better by Moody’s and B+ or better by S&P

  	
   

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Otherwise

  	
   

  	
  1.50

  	
  %

  	
  2.50

  	
  %

  



 


 


For the purposes of the foregoing relating to
Revolving Facility Loans and Swingline Loans, changes in the Applicable Margin
and Applicable Commitment Fee resulting from changes in the Total Senior
Secured Bank Leverage Ratio shall become effective on the date (the “Adjustment
Date”) that is three Business Days 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, at the option of the Administrative Agent or the
Required Lenders, until the date that is three Business Days after the date on
which such financial statements are delivered, the pricing level that is one
pricing level higher than the pricing level theretofore in effect shall apply
as of the first Business Day after the date on which such financial statements
were to have been delivered but were not 


 


37

















 


delivered.  Each
determination of the Total Senior Secured Bank Leverage Ratio pursuant to the
Pricing Grid shall be made in a manner consistent with the determination
thereof pursuant to Section 6.11.


For purposes of the foregoing relating to Term B
Loans, (i) if either S&P or Moody’s shall not have in effect a
corporate credit rating (other than by reason of the circumstances referred to
in the following sentence), then such rating agency (or, if an Event of Default
has occurred and is continuing, both rating agencies) will have deemed to have
established a corporate credit rating that is below B+ (in the case of S&P)
or below B1 (in the case of Moody’s) and (ii) if any rating established or
deemed to have been established by S&P or Moody’s shall be changed (other
than as a result of a change in the rating system of either S&P or Moody’s),
the change in the Applicable Margin shall be effective as of the date on which
such change is first announced by the rating agency making such change.  If the rating system of S&P or Moody’s shall
change, or if either such rating agency shall cease to be in the business of
issuing corporate credit ratings, the Borrowers and the Required Lenders shall
negotiate in good faith to amend this definition to reflect such changed rating
system or the non-availability of ratings from such rating agency and, pending
the effectiveness of any such amendment, the rating of such rating agency shall
be determined by reference to the rating most recently in effect from such
rating agency prior to such change or cessation.


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


“Prime Rate” means the rate of interest which
is identified and normally published by Bloomberg Professional Service Page
Prime as the “Prime Rate” (or, if more than one rate is published as the Prime
Rate, then the highest of such rates). 
Any change in the Prime Rate will become effective as of the date the
rate of interest which is so identified as the “Prime Rate” is different from
that published on the preceding Business Day. 
If Bloomberg Professional Service no longer reports the Prime Rate, or
if such Page Prime no longer exists, or the Administrative Agent determines in
good faith that the rate so reported no longer accurately reflects an accurate
determination of the prevailing Prime Rate, the Administrative Agent in
agreement with the Borrowers may select a reasonably comparable index or source
to use as the basis for the Prime Rate.


“Pro Forma Basis” shall mean, as to any person,
for any events as described below that occur subsequent to the commencement of
a 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 four consecutive fiscal quarter period ended
on or before the occurrence of such event (the “Reference Period”):  (i) in making any determination of
EBITDA, effect shall be given to any Asset Sale, any acquisition (or any
similar transaction or transactions not otherwise permitted under
Section 6.04 or 6.05 that require a waiver or consent of the Required
Lenders and such waiver or consent has been obtained), any dividend, distribution
or other similar payment, any designation of any Subsidiary as an Unrestricted
Subsidiary and any Subsidiary Redesignation, and any restructurings of the
business of the Borrowers or any of their Subsidiaries that are expected to
have a continuing impact and are factually supportable, which would include
cost savings resulting from head count reduction, closure of facilities and
similar 


 


38

















 


operational and other cost savings, which adjustments
the Borrowers determine are reasonable as set forth in a certificate of a
Financial Officer of the Borrowers (the foregoing, together with any
transactions related thereto or in connection therewith, the “relevant
transactions”), in each case that occurred during the Reference Period (or, in
the case of determinations made pursuant to the definition of the term “Permitted
Business Acquisition” or pursuant to Sections 2.11(b), 6.01(r), 6.02(cc)
or 6.06(e), occurring during the Reference Period or thereafter and through and
including the date upon which the respective Permitted Business Acquisition or
incurrence of Indebtedness or Liens or dividend is consummated), (ii) in
making any determination on a Pro Forma Basis, all Indebtedness (including
Indebtedness issued, incurred or assumed as a result of, or to finance, any
relevant transactions 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
and amounts outstanding under any Permitted Receivables Financing, in each case
not to finance any acquisition) issued, incurred, assumed or permanently repaid
during the Reference Period (or, in the case of determinations made pursuant to
the definition of the term “Permitted Business Acquisition” or pursuant to
Sections 2.11(b), 6.01(r), 6.02(cc) or 6.06(e), occurring during the
Reference Period or thereafter and through and including the date upon which
the respective Permitted Business Acquisition or incurrence of Indebtedness or
Liens or dividend is consummated) shall be deemed to have been issued,
incurred, assumed or permanently repaid at the beginning of such period, and
(iii) (A) any Subsidiary Redesignation then being designated, effect
shall be given to such Subsidiary Redesignation and all other Subsidiary
Redesignations after the first day of the relevant Reference Period and on or
prior to the date of the respective Subsidiary Redesignation then being
designated, collectively, and (B) any designation of a Subsidiary as an
Unrestricted Subsidiary, effect shall be given to such designation and all
other designations of Subsidiaries as Unrestricted Subsidiaries after the first
day of the relevant Reference Period and on or prior to the date of the then
applicable designation of a Subsidiary as an Unrestricted Subsidiary,
collectively.


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 Borrowers and may include adjustments to reflect
(1) operating expense reductions and other operating improvements or
synergies reasonably expected to result from any relevant pro forma event and
(2) all adjustments of the nature used in connection with the calculation
of Adjusted EBITDA as set forth in footnote 3 to the “Summary Historical
and Unaudited Pro Forma Financial Data” under “Offering Circular Summary” in
the Senior Unsecured Notes Offering Memorandum and the Senior Subordinated
Notes Offering Memorandum to the extent such adjustments, without duplication,
continue to be applicable to such Reference Period.  The Borrowers shall deliver to the
Administrative Agent a certificate of a Financial Officer of the Borrowers
setting forth such demonstrable or additional operating expense reductions,
other operating improvements or synergies and adjustments pursuant to
clause (2) above, and information and calculations supporting them in
reasonable detail.


“Pro Forma Compliance” shall mean, at any date
of determination, that the Borrowers and their Subsidiaries shall be in
compliance, on a Pro Forma Basis after giving effect on a Pro Forma Basis to
the relevant transactions (including the assumption, the issuance, incurrence
and permanent repayment of Indebtedness), with the Financial Performance
Covenant recomputed as at the last day of the most recently ended fiscal
quarter of the Borrowers and their 


 


39

















 


Subsidiaries for which the financial statements and
certificates required pursuant to Section 5.04 have been delivered, and
the Borrowers shall have delivered to the Administrative Agent a certificate of
a Responsible Officer of the Borrowers to such effect, together with all
relevant financial information.


“Pro Forma EBITDA” shall have the meaning
assigned to such term in Section 3.05(a).


“Pro Forma Financial Statements” shall have the
meaning assigned to such term in Section 3.05(a).


“Projections” shall mean the projections of
Holdings, the Borrowers and the Subsidiaries included in the Information
Memorandum and any other projections and any forward-looking statements
(including statements with respect to booked business) of such entities
furnished to the Lenders or the Administrative Agent by or on behalf of
Holdings, the Borrowers or any of the Subsidiaries prior to the Closing Date.


“Qualified Equity Interests” means any Equity
Interest other than Disqualified Stock.


“Qualified IPO” shall mean an underwritten
public offering of the Equity Interests of Holdings (or any direct or indirect
parent of Holdings) which generates cash proceeds to the Borrowers of at least
$75.0 million.


“Rate” shall have the meaning assigned to such
term in the definition of the term “Type”.


“Real
Property” means, collectively, all right, title and interest (including any
leasehold estate) in and to any and all parcels of or interests in real
property owned in fee or leased by any Loan Party, together with, in each case,
all easements, hereditaments and appurtenances relating thereto, all
improvements and appurtenant fixtures incidental to the ownership or lease
thereof.


“Receivables Assets” shall mean accounts
receivable (including any bills of exchange) and related assets and property
from time to time originated, acquired or otherwise owned by the Borrowers or
any Subsidiary.


“Receivables Net Investment” shall mean the
aggregate cash amount paid by the lenders or purchasers under any Permitted
Receivables Financing in connection with their purchase of, or the making of loans
secured by, Receivables Assets or interests therein, as the same may be reduced
from time to time by collections with respect to such Receivables Assets or
otherwise in accordance with the terms of the Permitted Receivables Documents
(but excluding any such collections used to make payments of items included in
clause (c) of the definition of Interest Expense); provided,
however, that if all or any part of such Receivables Net Investment shall have
been reduced by application of any distribution and thereafter such
distribution is rescinded or must otherwise be returned for any reason, such
Receivables Net Investment shall be increased by the amount of such
distribution, all as though such distribution had not been made.


 


40

















 


“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” shall mean, with respect to any Lender that is
a fund that invests in bank or commercial loans and similar extensions of
credit, any other fund that invests in bank or commercial loans and similar
extensions of credit and is advised or managed by (a) such Lender,
(b) an Affiliate of such Lender or (c) an entity (or an Affiliate of
such entity) that administers, advises or manages such Lender.


“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).


“Repricing Transaction” shall mean any
repayment, refinancing, substitution or replacement, in whole or in part, of
principal of outstanding Term B Loans, directly or indirectly, from the net
proceeds of any Indebtedness of Holdings, the Borrowers or any of their
Subsidiaries having an effective interest rate margin or weighted average yield
(as determined by the Administrative Agent consistent with generally accepted
financial practice) that is less than the Applicable Margin for, or weighted
average yield (as determined by the Administrative Agent on the same basis) of,
the Term B Loans, including, without limitation, as may be effected
through any Incremental Term Loans or any other new or additional loans under
this Agreement 


 


41

















 


or by an amendment of any provisions of this Agreement
relating to the Applicable Margin for, or weighted average yield of, the
Term B Loans.


“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) Revolving L/C Exposures, (y) Swingline Exposures, and
(z) the total 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 (or Excess Cash Flow Interim Period), 50%; provided,
that (a) if the Total Senior Secured Bank Leverage Ratio at the end of the
Applicable Period (or Excess Cash Flow Interim Period) is greater than
2.25:1.00 but less than or equal to 2.50:1.00, such percentage shall be 25%,
and (b) if the Total Senior Secured Bank Leverage Ratio at the end of the
Applicable Period (or Excess Cash Flow Interim Period) is less than or equal to
2.25:1.00, 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.


“Restructuring Transactions” shall mean the
transactions substantially on the terms set forth on Schedule 1.01D
(and any modifications thereto, so long as such modifications are not
materially adverse to the Agents or the Lenders).


“Retained Excess Cash
Flow Overfunding” shall mean, at any time, in respect of any Excess Cash
Flow Period, the amount, if any, by which the portion of the Cumulative Credit
attributable to the Retained Percentage of Excess Cash Flow for all Excess Cash
Flow Interim Periods used in such Excess Cash Flow Period exceeds the actual
Retained Percentage of Excess Cash Flow for such Excess Cash Flow Period.


“Retained Percentage” shall mean, with respect
to any Excess Cash Flow Period (or Excess Cash Flow Interim Period),
(a) 100% minus (b) the Required Percentage with respect to such
Excess Cash Flow Period (or Excess Cash Flow Interim Period).


“Revaluation Date” means, with respect to any
Alternate Currency Letter of Credit, each of the following:  (i) each date of issuance of an
Alternate Currency Letter of Credit, (ii) each date of an amendment of any
Alternate Currency Letter of Credit having the effect of increasing the amount
thereof (solely with respect to the increased amount), (iii) each date of
any payment by the Issuing Bank under any Alternate Currency Letter of Credit,
and (iv) such additional dates as the Administrative Agent or the Issuing
Bank shall determine or the Required Lenders shall require.


“Revolving Facility” shall mean the Revolving
Facility Commitments (including any Incremental Revolving Facility Commitments)
and the extensions of credit made hereunder by the Revolving Facility Lenders.


 


42

















 


“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, (b) reduced or increased from time to
time pursuant to assignments by or to such Lender under Section 9.04, and
(c) increased or provided under Section 2.21.  The initial amount of each Lender’s Revolving
Facility Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance or Incremental Assumption Agreement pursuant to which
such Lender shall have assumed its Revolving Facility Commitment (or
Incremental Revolving Facility Commitment), as applicable.  The initial aggregate amount of the Lenders’
Revolving Facility Commitments prior to any Incremental Revolving Facility
Commitments) 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
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 product of
(x) such Revolving Facility Lender’s Revolving Facility Percentage and
(y) the aggregate Revolving Facility Credit Exposure of all Revolving
Facility Lenders, collectively, 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.


“Revolving Facility Maturity Date” shall mean
July 20, 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 (calculated, in the case of Alternate Currency Letters
of Credit, based on the Dollar Equivalent thereof), (b) the aggregate
principal amount of all L/C Disbursements that have not yet been reimbursed at
such time (calculated, in the case of Alternate Currency Letters of Credit,
based on the Dollar Equivalent thereof). 
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.  For all purposes
of this Agreement, if on any date of determination a Letter of Credit has
expired by its 


 


43

















 


terms but any amount may still be drawn thereunder by
reason of the operation of Rule 3.14 of the ISP, such Letter of Credit
shall be deemed to be “outstanding” in the amount so remaining available to be
drawn.  Unless otherwise specified
herein, the amount of a Letter of Credit at any time shall be deemed to be the
stated amount of such Letter of Credit in effect at such time; provided,
that with respect to any Letter of Credit that, by its terms or the terms of
any document related thereto, provides for one or more automatic increases in
the stated amount thereof, the amount of such Letter of Credit shall be deemed
to be the maximum stated amount of such Letter of Credit after giving effect to
all such increases, whether or not such maximum stated amount is in effect at
such time.


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


“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.


“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, the Foreign Pledge Agreements and each of the
security agreements and other instruments and documents executed and delivered
pursuant to any of the foregoing or pursuant to Section 5.10.


“Senior Secured Bank Debt” at any date shall
mean (i) the aggregate principal amount of Consolidated Debt of the
Borrowers and their Subsidiaries outstanding at such date that consists of,
without duplication, (A) Term Loans or Revolving Facility Credit Exposure
and (B) Indebtedness secured by a Lien (other than any Indebtedness of a
Subsidiary that is not a Loan Party secured by a Lien on assets of a Subsidiary
that is not a Loan Party) under Section 6.02(a), (c), (i), (j), (u) or
(cc) (in each case of (A) and (B), other than letters of credit to the extent
undrawn and not supporting Indebtedness of the type included in Consolidated
Debt), less (ii) without duplication, the Unrestricted Cash and Permitted
Investments of the Borrowers and their Subsidiaries on such date.


“Senior Subordinated Note Documents” shall mean
the Senior Subordinated Notes and the Senior Subordinated Notes Indenture.


“Senior Subordinated Notes” shall mean the
Borrowers’ 11.75% Senior Subordinated Notes due 2016, issued pursuant to the
Senior Subordinated Notes Indenture and any notes issued by the Borrowers in
exchange for, and as contemplated by, the Senior Subordinated Notes and the
related registration rights agreement with substantially identical terms as the
Senior Subordinated Notes.


 


44

















 


“Senior Subordinated Notes Indenture” shall
mean the Indenture dated as of July 21, 2006 under which the Senior
Subordinated Notes were issued, among the Borrowers and certain of the
Subsidiaries party thereto and the trustee named therein from time to time, as
in effect on the Closing Date and as amended, restated, supplemented or
otherwise modified from time to time in accordance with the requirements
thereof and of this Agreement.


“Senior Subordinated Notes Offering Memorandum”
shall mean the Offering Circular, dated July 14, 2006, in respect of the Senior Subordinated Notes.


“Senior Unsecured Note Documents” shall mean
the Senior Unsecured Notes and the Senior Unsecured Notes Indenture.


“Senior Unsecured Notes” shall mean the
Borrowers’ 9.50% Senior Unsecured Notes due 2014, issued pursuant to the Senior
Unsecured Notes Indenture and any notes issued by the Borrowers in exchange
for, and as contemplated by, the Senior Unsecured Notes and the related
registration rights agreement with substantially identical terms as the Senior
Unsecured Notes.


“Senior Unsecured Notes Indenture” shall mean
the Indenture dated as of July 21, 2006 under which the Senior Unsecured
Notes were issued, among the Borrowers and certain of the Subsidiaries party
thereto and the trustee named therein from time to time, as in effect on the
Closing Date and as amended, restated, supplemented or otherwise modified from
time to time in accordance with the requirements thereof and of this Agreement.


“Senior Unsecured Notes Offering Memorandum”
shall mean the Offering Circular, dated July 14, 2006, in respect of the Senior Unsecured Notes.


“Special Purpose Receivables Subsidiary” shall
mean a direct or indirect Subsidiary of the Borrowers established in connection
with a Permitted Receivables Financing for the acquisition of Receivables
Assets or interests therein, and which is organized in a manner intended to
reduce the likelihood that it would be substantively consolidated with
Holdings, the Borrowers or any of the Subsidiaries (other than Special Purpose
Receivables Subsidiaries) in the event Holdings, the Borrowers or any such
Subsidiary becomes subject to a proceeding under the U.S. Bankruptcy Code (or
other insolvency law).


“Specified Representations” shall have the
meaning assigned to such term in Section 4.01.


“Spot Rate” for a currency means the rate
determined by the Administrative Agent or the Issuing Bank, as applicable, to
be the rate quoted by the person acting in such capacity as the spot rate for
the purchase by such person of such currency with another currency through its
principal foreign exchange trading office at approximately 11:00 a.m. on
the date three Business Days prior to the date as of which the foreign exchange
computation is made; provided, that the Administrative Agent or the
Issuing Bank may obtain such spot rate from another financial institution
designated by the Administrative Agent or the Issuing Bank if the person acting
in such capacity does not have as of the date of determination a spot buying
rate for any such currency.


 


45

















 


“Standby Letter of Credit” shall have the
meaning provided in Section 2.05(a).


“Statutory Reserves” shall mean, with respect
to any currency, any reserve, liquid asset or similar requirements established
by any Governmental Authority of the United States of America or of the
jurisdiction of such currency or any jurisdiction in which Loans in such
currency are made to which banks in such jurisdiction are subject for any
category of deposits or liabilities customarily used to fund loans in such
currency or by reference to which interest rates applicable to Loans in such
currency are determined.


“Subagent” shall have the meaning assigned to
such term in Section 8.02.


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


“Subsidiary” shall mean, unless the context
otherwise requires, a subsidiary of the Borrowers.  Notwithstanding the foregoing (and except for
purposes of Sections 3.09, 3.13, 3.15, 3.16, 5.03, 5.09 and 7.01(k), and
the definition of Unrestricted Subsidiary contained herein), an Unrestricted
Subsidiary shall be deemed not to be a Subsidiary of the Borrowers or any of
their Subsidiaries for purposes of this Agreement.


“Subsidiary Loan Party” shall mean each
Domestic Subsidiary of the Borrowers other than (x) any Domestic
Subsidiary that is a subsidiary of a Foreign Subsidiary if such Domestic
Subsidiary was acquired after the Closing Date and (y) any Unrestricted
Subsidiary.


“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 similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or consultants
of Holdings, the Borrowers or any of the 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 Borrowers substantially in the form of Exhibit D-2.


 


46

















 


“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
$30.0 million.


“Swingline Exposure” shall mean at any time the
aggregate principal amount of all outstanding Swingline Borrowings 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 Merrill Lynch
Capital Corporation, acting through any of its Affiliates in its capacity as a
lender of Swingline Loans.


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


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


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


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


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


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


“Term B Facility Maturity Date” shall mean
July 19, 2013.


“Term B Loan Commitment” shall mean with
respect to each Lender, the commitment of such Lender to make Term B Loans
as set forth in Section 2.01(a) or Incremental Term Loans in the form of
Term B Loans as set forth in Section 2.01(c).  The initial amount of each Lender’s
Term B Loan Commitment is set forth on Schedule 2.01, or in the
Assignment and Assumption or Incremental Assumption Agreement pursuant to which
such Lender shall have assumed its Term B Loan Commitment (or its
Incremental Term Commitment), as applicable. 
The aggregate amount of the Term B Loan Commitments on the Closing
Date is $610.0 million.


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


“Term B Loans” shall mean the term loans
made by the Lenders to the Borrowers pursuant to Section 2.01(a) and any
Incremental Term Loans in the form of Term B Loans made by the Incremental
Term Lenders to the Borrowers pursuant to Section 2.01(c).


 


47

















 


“Term Borrowing” shall mean any Term B
Borrowing or any Incremental Term Borrowing.


“Term Facility” shall mean the Term Facility
and/or any or all of the Incremental Term Facilities.


“Term Facility Maturity Date” shall mean the
latest of the Term B Facility Maturity Date and any Incremental Term
Facility Maturity Date.


“Term Loan Commitment” shall mean any
Term B Loan Commitment or any Incremental Term Commitment.


“Term Loan Installment Date” shall mean any
Term B Loan Installment Date or any Incremental Term Loan Installment
Date.


“Term Loans” shall mean the Term B Loans
and/or the Incremental Term Loans.


“Test Period” shall mean, on any date of
determination, the period of four consecutive fiscal quarters of the Borrowers
then most recently ended (taken as one accounting period).


“Total Senior Secured Bank Leverage Ratio”
means, on any date, the ratio of (a) Senior Secured Bank Debt as of such
date to (b) EBITDA for the period of four consecutive fiscal quarters of
the Borrowers most recently ended as of such date, all determined on a
consolidated basis in accordance with GAAP; provided, that for purposes
of clause (b) above, (i) EBITDA shall be determined for the relevant
Test Period on a Pro Forma Basis and (ii) EBITDA for purposes of
Section 6.11 shall include all adjustments of the nature used in
connection with the calculation of Adjusted EBITDA as set forth in
footnote 3 to the “Summary Historical and Unaudited Pro Forma Financial
Data” under “Offering Circular Summary” in the Senior Unsecured Notes Offering
Memorandum and the Senior Subordinated Notes Offering Memorandum to the extent
such adjustments, without duplication, continue to be applicable in the
relevant Test Period; provided, further, that the Borrowers shall
deliver a Financial Officer’s certificate of the type contemplated by the last
sentence of the definition of “Pro Forma Basis” in respect of all adjustments
pursuant to clause (ii) above.


“Trade Letter of Credit” shall have the meaning
provided in Section 2.05(a).


“Transaction Documents” shall mean the Merger
Documents, the Senior Unsecured Note Documents, the Senior Subordinated Note
Documents and the Loan Documents.


“Transaction Expenses” means any fees or
expenses incurred or paid by the Fund, Holdings, the Borrowers (or any direct
or indirect parent of the Borrowers) or any of their Subsidiaries in connection
with the Transactions, this Agreement and the other Loan Documents (including
expenses in connection with Swap Agreements) and the transactions contemplated
hereby and thereby.


“Transactions” shall mean, collectively, the
transactions to occur pursuant to the Transaction Documents, including
(a) the consummation of the Merger; (b) the execution and 


 


48

















 


delivery of the Loan Documents, the creation of the
Liens pursuant to the Security Documents, and the initial borrowings hereunder;
(c) the Equity Financing; (d) the sale and issuance of the Senior
Unsecured Notes and the Senior Subordinated Notes; (e) the Debt Tender
Offer and the Consent Solicitation; (f) the refinancing of the Existing
Credit Agreement; and (g) the payment of all fees and expenses to be paid
on or prior to the Closing Date and owing in connection with the foregoing.


“Type” shall mean, when used in respect of any
Loan or Borrowing, 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.


“Unfunded Pension Liability” means the excess
of a Plan’s “accumulated benefit obligations” as defined under Statement of
Financial Accounting Standards No. 87, over the current fair market value
of that Plan’s assets.


“Uniform Commercial Code” means the Uniform Commercial
Code as the same may from time to time be in effect in the State of New York or
the Uniform Commercial Code (or similar code or statute) of another
jurisdiction, to the extent it may be required to apply to any item or items of
Collateral.


“Unrestricted Cash” shall mean cash or cash
equivalents of the Borrowers or any of their Subsidiaries that would not appear
as “restricted” on a consolidated balance sheet of the Borrowers or any of
their Subsidiaries.


“Unrestricted Subsidiary” shall mean any Subsidiary
of the Borrowers that is acquired or created after the Closing Date and
designated by the Borrowers as an Unrestricted Subsidiary hereunder by written
notice to the Administrative Agent; provided, that the Borrowers shall
only be permitted to so designate a new Unrestricted Subsidiary after the
Closing Date and so long as (a) no Default or Event of Default has
occurred and is continuing or would result therefrom, (b) immediately
after giving effect to such designation (as well as all other such designations
theretofore consummated after the first day of such Reference Period), the
Borrowers shall be in Pro Forma Compliance, (c) such Unrestricted Subsidiary shall be
capitalized (to the extent capitalized by the Borrowers or any of their
Subsidiaries) through Investments as permitted by, and in compliance with,
Section 6.04(j), and any prior or concurrent Investments in such
Subsidiary by the Borrowers or any of their Subsidiaries shall be deemed to
have been made under Section 6.04(j), (d) without duplication of
clause (c), any assets owned by such Unrestricted Subsidiary at the time
of the initial designation thereof shall be treated as Investments pursuant to
Section 6.04(j), and (e) such Subsidiary shall have been designated an “unrestricted
subsidiary” (or otherwise not be subject to the covenants and defaults) under
the Senior Unsecured Notes Indenture, the Senior Subordinated Notes Indenture,
all Permitted Additional Debt and all Permitted Refinancing Indebtedness in
respect of any of the foregoing and all Disqualified Stock; provided, further, that
at the time of the initial Investment by the Borrowers or any of their
Subsidiaries in such Subsidiary, the Borrowers shall designate such entity as
an Unrestricted Subsidiary in a written notice to the Administrative
Agent.  The Borrowers may designate any
Unrestricted Subsidiary to be a Subsidiary for purposes of this Agreement
(each, a “Subsidiary Redesignation”); provided, that
(i) such Unrestricted Subsidiary, 


 


49

















 


both before and after giving effect to such
designation, shall be a Wholly Owned Subsidiary of the Borrowers, (ii) no
Default or Event of Default has occurred and is continuing or would result
therefrom, (iii) immediately after giving effect to such Subsidiary
Redesignation (as well as all other Subsidiary Redesignations theretofore
consummated after the first day of such Reference Period), the Borrowers shall
be in Pro Forma Compliance, (iv) 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, and
(v) the Borrowers shall have delivered to the Administrative Agent an
officer’s certificate executed by a Responsible Officer of the Borrowers,
certifying to the best of such officer’s knowledge, compliance with the
requirements of preceding clauses (i) through (iv), inclusive, and
containing the calculations and information required by the preceding
clause (ii).


“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.


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


“Wholly Owned Subsidiary” of any person shall
mean a subsidiary of such person, all of the Equity Interests of which (other
than directors’ qualifying shares or nominee or other similar shares 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.


“Working Capital” shall mean, with respect to
the Borrowers and the Subsidiaries on a consolidated basis at any date of
determination, Current Assets at such date of determination minus
Current Liabilities at such date of determination; provided, that, for
purposes of calculating Excess Cash Flow, increases or decreases in Working
Capital shall be calculated without regard to any changes in Current Assets or
Current Liabilities as a result of (a) any reclassification in accordance
with GAAP of assets or liabilities, as applicable, between current and
noncurrent or (b) the effects of purchase accounting.


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 shall mean 


 


50

















 


such document as amended,
restated, supplemented or otherwise modified from time to time.  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
Borrowers notify the Administrative Agent that the Borrowers request 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
Borrowers 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.


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


SECTION
1.04.  Exchange Rates; Currency
Equivalents.  (a)  The
Administrative Agent shall determine the Spot Rate as of each Revaluation Date
to be used for calculating Dollar Equivalent amounts of Alternate Currency
Letters of Credit.  Such Spot Rate shall
become effective as of such Revaluation Date and shall be the Spot Rate
employed in converting any amounts between the Dollars and each Alternate
Currency until the next Revaluation Date to occur.  Except for purposes of financial statements
delivered by Loan Parties hereunder or calculating financial covenants
hereunder or except as otherwise provided herein, the applicable amount of any
currency (other than Dollars) for purposes of the Loan Documents shall be such
Dollar Equivalent amount as so determined by the Administrative Agent.  No Default or Event of Default shall arise as
a result of any limitation or threshold set forth in Dollars in Article VI
or paragraph (f) or (j) of Section 7.01 being exceeded solely as a
result of changes in currency exchange rates from those rates applicable on the
first day of the fiscal quarter in which such determination occurs or in
respect of which such determination is being made.


(b)           Wherever
in this Agreement in connection with an Alternate Currency Letter of Credit, an
amount, such as a required minimum or multiple amount, is expressed in Dollars,
such amount shall be the Dollar Equivalent of such Dollar amount (rounded to
the nearest unit of such Alternate Currency, with 0.5 of a unit being rounded
upward), as determined by the Administrative Agent.


 


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ARTICLE
II


 


The
Credits


 


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


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


(b)           each Lender agrees to make Revolving
Facility Loans to the Borrowers 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 principal amount of Revolving Facility Loans made on the Closing Date
shall  not exceed $35.0 million,
plus any amount necessary to fund any working capital adjustment pursuant to
the Merger Agreement.  Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrowers may borrow, prepay and reborrow Revolving Facility Loans; and


(c)           each Lender having an Incremental
Term Loan Commitment agrees, subject to the terms and conditions set forth in
the applicable Incremental Assumption Agreement, to make Incremental Term Loans
to the Borrowers, in an aggregate principal amount not to exceed its
Incremental Term Loan Commitment.


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
Swingline Loans, in accordance with their respective Swingline Commitments);
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.


(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 Borrowers 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 Borrowers 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.


 


52

















 


(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
(i) 5 Eurocurrency Borrowings outstanding under the Term Facility and
(ii) 10 Eurocurrency Borrowings outstanding under the Revolving
Facility.


(d)           Notwithstanding
any other provision of this Agreement, the Borrowers 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 applicable Borrower
shall notify the Administrative Agent of such request by telephone (a) in
the case of a Eurocurrency Borrowing, not later than 12:00 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 12:00 noon, Local
Time, one Business Day before the date of the proposed Borrowing; provided,
that any such notice of an ABR Revolving Facility Borrowing to finance the
reimbursement of an L/C Disbursement as contemplated by Section 2.05(e)
may be given not later than 10:00 a.m., Local Time, on the date of the
proposed Borrowing.  Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Borrowing Request
in a form approved by the Administrative Agent and signed by the applicable
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 Facility Loans, Other Revolving Loans, Term B Loans or
Other 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


 


53

















 


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


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 applicable Borrower shall be deemed to have selected an Interest Period of
one month’s duration.  Promptly following
receipt of a Borrowing Request in accordance with this Section 2.03, 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 Borrowers 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 Borrowers may borrow, prepay and reborrow Swingline Loans.


(b)           To request a
Swingline Borrowing, the applicable Borrower shall notify the Administrative
Agent and the Swingline Lender of such request by telephone (confirmed by a
Swingline Borrowing Request by telecopy), 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 of
such Swingline Borrowing (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 3:00 p.m.,
Local Time, to the account of the applicable 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 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 


 


54

















 


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 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 Borrowers 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 to the
Swingline Lender.  Any amounts received
by the Swingline Lender from the Borrowers (or other party on behalf of the
Borrowers) 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 Borrowers for any reason.  The purchase of participations in a Swingline
Loan pursuant to this paragraph shall not relieve the Borrowers 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 Borrowers may request the
issuance of (x) trade letters of
credit in support of trade obligations of the Borrowers and their Subsidiaries
incurred in the ordinary course of business (such letters of credit issued for
such purposes, “Trade Letters of Credit”) and (y) standby letters
of credit issued for any other lawful purposes of the Borrowers and their
Subsidiaries (such letters of credit issued for such purposes, “Standby
Letters of Credit”) for its own accounts 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 five Business 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 Borrowers to, or entered into
by the Borrowers 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 extension in accordance with paragraph (c) of this
Section) or extension of an outstanding Letter of Credit), the applicable
Borrower shall 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 or extension or such shorter period as the Administrative Agent and
the Issuing Bank in their sole discretion may agree) a notice requesting the
issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended or extended, and specifying the date of issuance, amendment or
extension (which shall be a 


 


55

















 


Business Day), the date on
which such Letter of Credit is to expire (which shall comply with
paragraph (c) of this Section), the amount and currency (which may be
Dollars or an Alternate Currency) of such Letter of Credit, the name and
address of the beneficiary thereof, whether such Letter of Credit constitutes a
Standby Letter of Credit or a Trade Letter of Credit, and such other
information as shall be necessary to issue, amend or extend such Letter of
Credit.  If requested by the applicable
Issuing Bank, the applicable 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.  A Letter of
Credit shall be issued, amended or extended only if (and upon issuance,
amendment or extension of each Letter of Credit the applicable Borrower shall
be deemed to represent and warrant that), after giving effect to such issuance,
amendment or extension (i) the Revolving L/C Exposure shall not exceed the
Letter of Credit Sublimit, (ii) the Revolving Facility Credit Exposure
shall not exceed the total Revolving Facility Commitments and (iii) no
Alternate Currency Letter of Credit shall be issued if, after giving effect
thereto, the aggregate amount of Revolving L/C Exposure with respect to all
Alternate Currency Letters of Credit would exceed $10.0 million.


(c)           Expiration Date.  Each Standby Letter of Credit shall expire at
or prior to the close of business on the earlier of (i) the date one year
(unless otherwise agreed upon by the Administrative Agent and the Issuing Bank
in their sole discretion) after the date of the issuance of such Standby Letter
of Credit (or, in the case of any extension thereof, one year (unless otherwise
agreed upon by the Administrative Agent and the Issuing Bank in their sole
discretion) after such renewal or extension) and (ii) the date that is
five Business Days prior to the Revolving Facility Maturity Date; provided,
that any Standby Letter of Credit with a one year tenor may provide for
automatic extension thereof for additional one year periods (which, in no
event, shall extend beyond the date referred to in clause (ii) of this
paragraph (c)) so long as such Standby Letter of Credit permits the
Issuing Bank to prevent any such extension at least once in each twelve-month
period (commencing with the date of issuance of such Standby Letter of Credit)
by giving prior notice to the beneficiary thereof within a time period during
such twelve-month period to be agreed upon at the time such Standby Letter of
Credit is issued; provided, further, that if the Issuing Bank and
the Administrative Agent each consent in their sole discretion, the expiration
date on any Standby Letter of Credit may extend beyond the date referred to in
clause (ii) above, provided, that if any such Standby Letter of
Credit is outstanding or is issued after the date that is 30 days prior to
the Revolving Facility Maturity Date the applicable Borrower shall provide cash
collateral pursuant to documentation reasonably satisfactory to the
Administrative Agent and the relevant Issuing Bank in an amount equal to 105%
of the face amount of each such Standby Letter of Credit on or prior to the
date that is 30 days prior to the Revolving Facility Maturity Date or, if
later, such date of issuance.  Each Trade
Letter of Credit shall expire on the earlier of (x) 180 days after
such Trade Letter of Credit’s date of issuance or (y) the date five
Business Days prior to the Revolving Facility Maturity Date.


(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 


 


56

















 


of Credit (calculated, in
the case of Alternate Currency Letters of Credit, based on the Dollar
Equivalent thereof).  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, in Dollars, such Revolving Facility
Lender’s Revolving Facility Percentage of each L/C Disbursement made by such
Issuing Bank and not reimbursed by the applicable Borrower on the date due as
provided in paragraph (e) of this Section, or of any reimbursement payment
required to be refunded to the applicable Borrower for any reason (calculated,
in the case of any Alternate Currency Letter of Credit, based on the Dollar
Equivalent thereof).  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 or the fact that, as a result of
changes in currency exchange rates, such Revolving Facility Lender’s Revolving Facility
Credit Exposure at any time might exceed its Revolving Facility Commitment at
such time (in which case Section 2.11(f) would apply), 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 applicable Borrower
shall reimburse such L/C Disbursement by paying to the Administrative Agent an
amount in Dollars equal to such L/C Disbursement (or, in the case of a
Alternate Currency Letter of Credit, the Dollar Equivalent thereof) not later
than 2:00 p.m., Local Time, on the third Business Day after such Borrower
receives notice under paragraph (g) of this Section of such L/C
Disbursement, together with accrued interest thereon from the date of such L/C
Disbursement at the rate applicable to ABR Loans; provided, that the
applicable 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, such
Borrower’s obligation to make such payment shall be discharged and replaced by
the resulting ABR Revolving Facility Borrowing or Swingline Borrowing.  If the applicable 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 such 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 in Dollars its Revolving Facility
Percentage of the payment then due from the applicable Borrower in the same
manner as provided in Section 2.06 with respect to Loans made by such 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 applicable 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 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 


 


57

















 


Revolving Loan or a
Swingline Borrowing as contemplated above) shall not constitute a Loan and
shall not relieve the applicable Borrower of its obligation to reimburse such
L/C Disbursement.


(f)            Obligations
Absolute.  The
obligation of the Borrowers 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 Borrowers’ 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; provided, that the foregoing shall not be construed to
excuse the applicable Issuing Bank from liability to the applicable Borrower to
the extent of any direct damages (as opposed to consequential damages, claims
in respect of which are hereby waived by such Borrower to the extent permitted
by applicable law) suffered by such Borrower that are determined by a court of
competent jurisdiction to have been caused by 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.  The parties hereto expressly agree that, in
the absence of gross negligence or willful misconduct on the part of the
applicable Issuing Bank, such Issuing Bank shall be deemed to have exercised
care in each such determination.  In
furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented that 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 applicable Borrower by telephone
(confirmed by telecopy) of any such demand for payment under a Letter of Credit
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 


 


58

















 


shall not relieve such
Borrower of its obligation to reimburse such Issuing Bank and the Revolving
Facility Lenders with respect to any such L/C Disbursement.


(h)           Interim
Interest.  If an
Issuing Bank shall make any L/C Disbursement, then, unless the applicable
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 such 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 applicable 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 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 Borrowers, 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 applicable 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), on the Business Day
or (ii) in the case of any other Event of Default, on the third Business
Day, in each case, following the date on which the applicable Borrower receives
notice from the Administrative Agent (or, if the maturity of the Loans has been
accelerated, 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, such 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 in Dollars 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 applicable 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 applicable Borrower under
this Agreement.  The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of 


 


59

















 


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
Borrowers, in each case, in Permitted Investments and at the risk and expense
of the Borrowers, 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 applicable 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 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 such
Borrower under this Agreement.  If the
applicable 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 such Borrower within
three Business Days after all Events of Default have been cured or waived.


(k)           Additional
Issuing Banks.  From time
to time, the applicable Borrower may by notice to the Administrative Agent
designate up to three Lenders (in addition to Credit Suisse) each of which
agrees (in its sole discretion) to act in such capacity and is reasonably
satisfactory to the Administrative Agent as an Issuing Bank.  Each such additional Issuing Bank shall
execute a counterpart of this Agreement upon the approval of the 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 applicable 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 or extend any Letter of Credit, the date of such issuance,
amendment or extension, and the aggregate face amount of the Letters of Credit
to be issued, amended or extended by it and outstanding after giving effect to
such issuance, amendment or extension occurred (and whether the amount thereof
changed), and the Issuing Bank shall be permitted to issue, amend or extend
such Letter of Credit if the Administrative Agent shall not have advised the
Issuing Bank that such issuance, amendment 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 with respect to the outstanding Letters of
Credit issued by such Issuing Bank as the Administrative Agent shall reasonably
request.


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 noon,
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 such Loans available to the
applicable Borrower by promptly crediting the amounts so received, in 


 


60

















 


like funds, to an account
of such Borrower designated by such 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 applicable 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 applicable 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 such Borrower to but
excluding the date of payment to the Administrative Agent, at (i) in the
case of such Lender, the greater of (A) the Federal Funds Effective Rate
and (B) a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation or (ii) in the case of
the Borrowers, the interest rate applicable to ABR Loans at such time.  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 applicable 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 applicable 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 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 applicable 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 such 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 by hand delivery or telecopy to the Administrative
Agent of a written Interest Election Request in the form of Exhibit E
and signed by the applicable 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 


 


61

















 


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.”


If any such Interest Election Request requests a
Eurocurrency Borrowing but does not specify an Interest Period, then the
applicable Borrower shall be deemed to have selected an Interest Period of one
month’s duration.


(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
applicable 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 Borrowers, 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.


(b)           The Borrowers
may at any time terminate, or from time to time reduce, the Revolving Facility
Commitments; provided, that (i) each reduction of the Revolving
Facility Commitments shall be in an amount that is an integral multiple of
$1.0 million and not less than $5.0 million (or, if less, the
remaining amount of the Revolving Facility Commitments) and (ii) the
Borrowers 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 Borrowers
shall notify the Administrative Agent of any election to terminate or reduce
the Revolving Facility Commitments under paragraph (b) of this Section at 


 


62

















 


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 Borrowers
pursuant to this Section shall be irrevocable; provided, that a notice
of termination of the Revolving Facility Commitments delivered by the Borrowers
may state that such notice is conditioned upon the effectiveness of other
credit facilities, in which case such notice may be revoked by the Borrowers
(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 shall be
made ratably among the Lenders in accordance with their respective Commitments.


SECTION 2.09.  Repayment
of Loans; Evidence of Debt. 
(a)  The Borrowers hereby unconditionally promise 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 to the
Borrowers 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 earlier of the Revolving Facility Maturity Date and the
first date after such Swingline Loan is made that is the 15th or last day of a
calendar month and is at least five Business Days after such Swingline Loan is
made; provided, that on each date that a Revolving Facility Borrowing is made
by the applicable Borrower, the Borrowers shall repay all Swingline Loans then
outstanding.


(b)           Each Lender
shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrowers 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 shall maintain accounts 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
Borrowers 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; 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 Borrowers to repay the
Loans in accordance with the terms of this Agreement.


(e)           Any Lender may
request that Loans made by it be evidenced by a promissory note (a “Note”).  In such event, the Borrowers 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 reasonably
acceptable to the Borrowers.  Thereafter,
the Loans evidenced by such promissory note and interest thereon shall at all
times (including after assignment pursuant to 


 


63

















 


Section 9.04) be
represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if such promissory note is a registered note,
to such payee and its registered assigns).


SECTION 2.10.  Repayment
of Term Loans and Revolving Facility Loans. 


(a)  Subject to the other paragraphs of this Section, (i) the
Borrowers shall repay Term B 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 opposite such date (each such date
being referred to as a “Term B Loan Installment Date”):




	
  Date

  	
   

  	
  Amount of Term B 

  Borrowings to Be Repaid

  	
   

  
	
  December 31, 2006

  	
   

  	
  $

  	
  1,525,000.00

  	
   

  
	
  March 31, 2007

  	
   

  	
  $

  	
  1,525,000.00

  	
   

  
	
  June 30, 2007

  	
   

  	
  $

  	
  1,525,000.00

  	
   

  
	
  September 30, 2007

  	
   

  	
  $

  	
  1,525,000.00

  	
   

  
	
  December 31, 2007

  	
   

  	
  $

  	
  1,525,000.00

  	
   

  
	
  March 31, 2008

  	
   

  	
  $

  	
  1,525,000.00

  	
   

  
	
  June 30, 2008

  	
   

  	
  $

  	
  1,525,000.00

  	
   

  
	
  September 30, 2008

  	
   

  	
  $

  	
  1,525,000.00

  	
   

  
	
  December 31, 2008

  	
   

  	
  $

  	
  1,525,000.00

  	
   

  
	
  March 31, 2009

  	
   

  	
  $

  	
  1,525,000.00

  	
   

  
	
  June 30, 2009

  	
   

  	
  $

  	
  1,525,000.00

  	
   

  
	
  September 30, 2009

  	
   

  	
  $

  	
  1,525,000.00

  	
   

  
	
  December 31, 2009

  	
   

  	
  $

  	
  1,525,000.00

  	
   

  
	
  March 31, 2010

  	
   

  	
  $

  	
  1,525,000.00

  	
   

  
	
  June 30, 2010

  	
   

  	
  $

  	
  1,525,000.00

  	
   

  
	
  September 30, 2010

  	
   

  	
  $

  	
  1,525,000.00

  	
   

  
	
  December 31, 2010

  	
   

  	
  $

  	
  1,525,000.00

  	
   

  
	
  March 31, 2011

  	
   

  	
  $

  	
  1,525,000.00

  	
   

  
	
  June 30, 2011

  	
   

  	
  $

  	
  1,525,000.00

  	
   

  
	
  September 30, 2011

  	
   

  	
  $

  	
  1,525,000.00

  	
   

  
	
  December 31, 2011

  	
   

  	
  $

  	
  1,525,000.00

  	
   

  
	
  March 31, 2012

  	
   

  	
  $

  	
  1,525,000.00

  	
   

  
	
  June 30, 2012

  	
   

  	
  $

  	
  1,525,000.00

  	
   

  
	
  September 30, 2012

  	
   

  	
  $

  	
  1,525,000.00

  	
   

  
	
  December 31, 2012

  	
   

  	
  $

  	
  1,525,000.00

  	
   

  
	
  March 31, 2013

  	
   

  	
  $

  	
  1,525,000.00

  	
   

  
	
  June 30, 2013

  	
   

  	
  $

  	
  1,525,000.00

  	
   

  
	
  Term B Facility Maturity
  Date

  	
   

  	
  $

  	
  568,825,000.00

  	
   

  
						






 


(ii)           in the event that any Incremental
Term Loans are made on an Increased Amount Date, the Borrowers shall repay such
Incremental Term Loans on the dates and in the amounts set forth in the
Incremental Assumption Agreement (each such date being referred to as an “Incremental
Term Loan Installment Date”); and


 


64

















 


(iii)          to the extent not previously paid,
outstanding Term Loans shall be due and payable on the applicable Term Facility
Maturity Date.


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


(c)           Prepayment of
the Loans from:


(i)            all Net Proceeds pursuant to
Section 2.11(b) and Excess Cash Flow pursuant to Section 2.11(c)
shall be applied to the Term Loans pro rata among the Term Facilities, with the
application thereof (A) to reduce in direct order amounts due on the next
twelve succeeding Term Loan Installment Dates under the applicable Term
Facilities, and (B) thereafter, to reduce on a pro rata basis (based on
the amount of such amortization payments) the remaining scheduled amortization
payments under the applicable Term Facilities; provided, that any
Lender, at its option, may elect to decline any such prepayment of any Term
Loan held by it if it shall give written notice to the Administrative Agent
thereof by 11:00 A.M. Local Time at least three Business Days prior to the
date of such prepayment (any such Lender, a “Declining Lender”) and on
the date of any such prepayment, any amounts that would otherwise have been
applied to prepay Term Loans owing to Declining Lenders shall instead be
retained by the Borrowers for application for any purpose not prohibited by
this Agreement, and


(ii)           any optional prepayments of the Term
Loans pursuant to Section 2.11(a) shall be applied to the remaining
installments of the Term Loans as the Borrowers may direct.


(d)           Any mandatory
prepayment of Term Loans pursuant to Section 2.11(b) or (c) shall be
applied so that the aggregate amount of such prepayment is allocated among the
Term B Loans and Other Term Loans, if any, pro rata based
on the aggregate principal amount of outstanding Term B Loans and Other Term
Loans, if any (unless, with respect to Other Term Loans, the Incremental
Assumption Agreement relating thereto does not so require).  Prior to any repayment of any Loan under any
Facility hereunder, the Borrowers shall select the Borrowing or Borrowings
under the applicable Facility to be repaid and shall notify the Administrative
Agent by telephone (confirmed by telecopy) of such selection not later than
2:00 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.  Repayments of Loans (other than repayments of
ABR Revolving Facility Borrowings that are not made in connection with the
termination or permanent reduction of the Revolving Facility Commitment) shall
be accompanied by accrued interest on the amount repaid.


 


65

















 


(e)           Notwithstanding
anything to the contrary, each prepayment of Term  Loans pursuant to Section 2.11(a) made on or before the date that is one year
after the Closing Date in connection with any Repricing Transaction shall be
accompanied by a prepayment premium equal to 1.00% of the aggregate principal
amount of each such prepayment.


SECTION 2.11.  Prepayment
of Loans.  (a)  The Borrowers
shall have the right at any time and from time to time to prepay any Loan in
whole or in part, without premium or penalty (but subject to
Sections 2.10(e) and 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 Borrowers
shall apply all Net Proceeds promptly upon receipt thereof to prepay Term Loans
in accordance with paragraphs (c) and (d) of Section 2.10.  Notwithstanding the foregoing, the Borrowers
may retain Net Proceeds pursuant to clause (b) of the definition thereof
if the Total Senior Secured Bank Leverage Ratio on a Pro Forma Basis after
giving effect to the relevant incurrence of Indebtedness would be less than or
equal to 2.25 to 1.00.


(c)           Not later than
90 days after the end of each Excess Cash Flow Period, the Borrowers shall
calculate Excess Cash Flow for such Excess Cash Flow Period and shall apply an
amount equal to (i) the Required Percentage of such Excess Cash Flow, minus
(ii) to the extent not financed, using the proceeds of, without
duplication, the incurrence of Indebtedness and the sale or issuance of any
Equity Interests (including any capital contributions), the sum of (A) the
amount of any voluntary prepayments during such Excess Cash Flow Period of Term
Loans (and with respect to the Excess Cash Flow Period ending March 31,
2008, plus the amount of any voluntary prepayments of Term Loans made
prior to such Excess Cash Flow Period) and (B) the amount of any permanent
voluntary reductions during such Excess Cash Flow Period of Revolving Facility
Commitments to the extent that an equal amount of Revolving Facility Loans was
simultaneously repaid, to prepay Term Loans in accordance with
paragraphs (c) and (d) of Section 2.10.  Not later than the date on which the
Borrowers is required to deliver financial statements with respect to the end
of each Excess Cash Flow Period under Section 5.04(a), the Borrowers will
deliver to the Administrative Agent a certificate signed by a Financial Officer
of the Borrowers setting forth the amount, if any, of Excess Cash Flow for such
fiscal year, the amount of any required prepayment in respect thereof and the
calculation thereof in reasonable detail.


(d)           In the event
and on such occasion that the total Revolving Facility Credit Exposure exceeds
the total Revolving Facility Commitments, the Borrowers shall prepay Revolving
Facility Borrowings or Swingline Borrowings (or, if no such Borrowings are
outstanding, deposit cash collateral in an account with the Administrative
Agent pursuant to Section 2.05(j)) in an aggregate amount equal to such
excess.


(e)           In the event
and on such occasion as the Revolving L/C Exposure exceeds the Letter of Credit
Sublimit, the Borrowers shall deposit cash collateral in an account with the
Administrative Agent pursuant to Section 2.05(j) in an amount equal to
such excess.


 


66

















 


(f)            If as a result
of changes in currency exchange rates, on any Revaluation Date, (i) the total
Revolving Facility Credit Exposure exceeds the total Revolving Facility
Commitments, (ii) the Revolving L/C Exposure exceeds the Letter of Credit
Sublimit or (iii) the Revolving L/C Exposure with respect to all Alternate
Currency Letters of Credit exceeds $10.0 million, the Borrowers shall
within ten days of such Revaluation Date (A) prepay Revolving Facility
Borrowings or Swingline Borrowings or (B) deposit cash collateral in an
account with the Administrative Agent pursuant to Section 2.05(j), in an aggregate
amount such that the applicable exposure does not exceed the applicable
commitment, sublimit or amount set forth above.


SECTION 2.12.  Fees.  (a)  The Borrowers agree to pay to
each Lender (other than any Defaulting Lender), through the Administrative
Agent, on the date that is 10 Business Days after the last day of March, June,
September and December in each year, and three Business Days after the date on
which the Revolving Facility Commitments of all the Lenders shall be terminated
as provided herein, a commitment fee (a “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 a rate equal to the Applicable Commitment Fee.  All 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 Lender’s
Commitment Fee, the outstanding Swingline Loans during the period for which
such Lender’s Commitment Fee is calculated shall be deemed to be zero.  The 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 Commitments of such Lender shall be terminated as
provided herein.


(b)           The Borrowers
from time to time agree to pay (i) to each Revolving Facility Lender
(other than any Defaulting Lender), through the Administrative Agent, on the last
Business Day of March, June, September and December of each year and three
Business Days after 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 Business Day of March, June, September and December of
each year and three Business Days after the date on which the Revolving
Facility Commitments of all the Lenders shall be terminated, 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
1/4 of 1% per annum of the daily 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 fees and 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.


 


67

















 


(c)           The Borrowers
agree 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 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 Borrowers 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;
provided, that this paragraph (c) shall not apply to any Event of
Default that has been waived by the Lenders pursuant to Section 9.08.


(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 applicable Term Facility Maturity Date; provided,
that (A) interest accrued pursuant to paragraph (c) of this Section
shall be payable on demand, (B) 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 (C) 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.


 


68

















 


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;


then the Administrative Agent shall give notice
thereof to the Borrowers and the Lenders by telephone or telecopy as promptly
as practicable thereafter and, until the Administrative Agent notifies the
Borrowers 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 the Borrowers 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 or Swingline Loans
held by, such Lender, or the Letters of Credit issued by 


 


69

















 


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 the Borrowers 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 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 Borrowers and shall be conclusive absent manifest error.  The Borrowers shall pay such Lender or Issuing
Bank, as applicable, the amount shown as due on any such certificate within
10 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 Borrowers thereof.  Failure or delay on the part of any Lender or
Issuing Bank to demand compensation pursuant to this Section 2.15 shall
not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such
compensation; provided, that the Borrowers shall not be required to
compensate a Lender or an Issuing Bank pursuant to this Section 2.15 for
any increased costs or reductions incurred more than 180 days prior to the
date that such Lender or Issuing Bank, as applicable, notifies the Borrowers 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 180-day period referred to above
shall be extended to include the period of retroactive effect thereof.


(e)           The foregoing
provisions of this Section 2.15 shall not apply in the case of any Change
in Law in respect of Taxes, which shall instead be 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 Borrowers pursuant to
Section 2.19, then, in any such event, the Borrowers shall compensate each
Lender for the loss, cost and expense attributable to such event.  In the case of a Eurocurrency Loan, such
loss, cost or expense to any Lender shall be deemed to be the amount determined
by such Lender to be the excess, if any, of (i) the amount of interest
that would have accrued on the principal amount of such Loan had such event not
occurred, at the Adjusted LIBO Rate that would have been applicable to such
Loan, for the period from the date of such event to the last day of the then
current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue a Eurocurrency Loan, for the period that would have been
the Interest Period for such Loan), over (ii) the amount of interest that
would accrue on such principal amount for such period at the 


 


70

















 


interest rate which such
Lender would bid were it to bid, at the commencement of such period, for
deposits in Dollars of a comparable amount and period from other banks in the
Eurocurrency market.  A certificate of
any Lender setting forth any amount or amounts that such Lender is entitled to
receive pursuant to this Section 2.16 shall be delivered to the Borrowers
and shall be conclusive absent manifest error. 
The Borrowers shall pay such Lender the amount shown as due on any such
certificate within 10 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 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
hereunder shall be increased as necessary so that after all required deductions
are made (including deductions applicable to additional sums payable under this
Section 2.17) 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 required and 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 2.17) and any reasonable expenses arising therefrom or
with respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental
Authority.  A certificate as to the
amount of such payment or liability delivered to 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, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.


(e)           Any Lender that
is entitled to an exemption from or reduction of withholding Tax under the law
of the jurisdiction in which the Borrowers are located, or any treaty to which
such jurisdiction is a party, with respect to payments under this Agreement
shall deliver to the Borrowers (with a copy to the Administrative Agent), to
the extent such Lender is legally entitled to do so, at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law as may reasonably be requested by the Borrowers to
permit such payments to be made without such withholding tax or 


 


71

















 


at a reduced rate; provided,
that no Lender shall have any obligation under this paragraph (e) with
respect to any withholding Tax imposed by any jurisdiction other than the
United States if in the reasonable judgment of such Lender such compliance
would subject such Lender to any material unreimbursed cost or expense or would
otherwise be disadvantageous to such Lender in any material respect.


(f)            If the
Administrative Agent or a Lender determines, in good faith and in its sole
discretion, that it has received 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
in good faith 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, in good faith and in its sole discretion, to be 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 Borrowers shall make each payment required to be made by them 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
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 Borrowers by the Administrative Agent, except
payments to be made directly to the applicable Issuing Bank or the Swingline
Lender as expressly provided herein and except that payments pursuant to
Sections 2.15, 2.16, 2.17 and 9.05 shall be made directly to the persons
entitled thereto.  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 hereunder shall be due on a
day that is not a Business Day, the date for payment 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 under the Loan Documents 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.


 


72

















 


(b)           If at any time
insufficient funds are received by and available to the Administrative Agent
from the Borrowers to pay fully all amounts of principal, unreimbursed L/C
Disbursements, interest and fees then due from the Borrowers hereunder, such
funds shall be applied (i) first, towards payment of interest and fees
then due from the Borrowers hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, (ii) second, towards payment of principal of Swingline Loans and
unreimbursed L/C Disbursements then due from the Borrowers hereunder, ratably
among the parties entitled thereto in accordance with the amounts of principal
and unreimbursed L/C Disbursements then due to such parties, and
(iii) third, towards payment of principal then due from the Borrowers
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal 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 Borrowers 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
Borrowers or any Subsidiary or Affiliate thereof (as to which the provisions of
this paragraph (c) shall apply). 
The Borrowers consent to the foregoing and agree, to the extent they may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrowers rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrowers in the
amount of such participation.


(d)           Unless the
Administrative Agent shall have received notice from the Borrowers prior to the
date on which any payment is due to the Administrative Agent for the account of
the Lenders or the applicable Issuing Bank hereunder that the Borrowers will
not make such payment, the Administrative Agent may assume that the Borrowers
have 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 Borrowers have 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 


 


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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 Borrowers are 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 Borrowers
hereby agree 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 Borrowers are 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, then the Borrowers may, at their sole expense and effort, upon notice
to such Lender and the Administrative Agent, require any 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 Borrowers shall have received
the prior written consent of the Administrative Agent (and, if in respect of
any Revolving Facility Commitment or Revolving Facility Loan, the Swingline
Lender and the Issuing Bank), which consent, in each case, 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 Borrowers
(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 Borrowers 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 requires the consent of all of the Lenders affected and with
respect to which the Required Lenders shall have granted their consent, then
the Borrowers shall have the right 


 


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(unless such Non-Consenting
Lender grants such consent) at its sole expense (including with respect to the
processing and recordation fee referred to in Section 9.04(b)(ii)(B)), to
replace such Non-Consenting Lender by requiring such Non-Consenting Lender to
(and any such Non-Consenting Lender agrees that it shall, upon the Borrowers’
request) assign its Loans and its Commitments (or, at the Borrowers’ option,
the Loans and Commitments under the Facility that is the subject of the
proposed amendment, waiver, discharge or termination) hereunder to one or more
assignees reasonably acceptable to (i) the Administrative Agent (unless,
in the case of an assignment of Term Loans, such assignee is a Lender, an
Affiliate of a Lender or an Approved Fund) and (ii) if in respect of any
Revolving Facility Commitment or Revolving Facility Loan, the Swingline Lender
and the Issuing Bank; provided that: (a) all Obligations of the
Borrowers 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 and (c) the replacement Lender shall
grant its consent with respect to the applicable proposed amendment, waiver,
discharge or termination.  In connection
with any such assignment the Borrowers, Administrative Agent, such
Non-Consenting Lender and the replacement Lender shall otherwise comply with
Section 9.04.  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 interest hereunder in the circumstance contemplated
by this Section 2.19(c) and the Administrative Agent agrees to effectuate
such assignment within three Business Days after the Borrowers’ request so long
as the other conditions for such assignment set forth in this Section 2.19
and in Section 9.04 have been satisfied.


(d)           Notwithstanding
anything to the contrary, any assignment of any Lender’s Term B Loans
pursuant to Section 2.19(c) effected on or before the date that is one
year after the Closing Date relating to any proposed amendment, waiver or
consent relating to a Repricing Transaction shall be accompanied by a premium
equal to 1.00% of the aggregate principal amount of the Term B Loans
assigned, with such premium to be paid by the Borrowers in cash to the
assigning Lender.


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 Borrowers through the Administrative
Agent, any obligations of such Lender to make or continue Eurocurrency Loans or
to convert ABR Borrowings to Eurocurrency Borrowings shall be suspended until
such Lender notifies the Administrative Agent and the Borrowers that the
circumstances giving rise to such determination no longer exist.  Upon receipt of such notice, the Borrowers
shall upon demand from such Lender (with a copy to the Administrative Agent),
either convert all Eurocurrency Borrowings of such Lender to ABR Borrowings,
either on the last day of the Interest Period therefor, if such Lender may
lawfully continue to maintain such Eurocurrency Borrowings to such day, or
immediately, if such Lender may not lawfully continue to maintain such
Loans.  Upon any such prepayment or conversion,
the Borrowers shall also pay accrued interest on the amount so prepaid or
converted.


 


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SECTION 2.21.  Incremental
Commitments.  (a)  The
Borrowers may, by written notice to the Administrative Agent from time to time,
request Incremental Term Loan Commitments and/or Incremental Revolving Facility
Commitments, as applicable, in an amount not to exceed the Incremental Amount
from one or more Incremental Term Lenders and/or Incremental Revolving Facility
Lenders (which may include any existing Lender) willing to provide such
Incremental Term Loans and/or Incremental Revolving Facility Commitments, as
the case may be, in their own discretion; provided, that each Incremental
Revolving Facility Lender shall be subject to the approval of the
Administrative Agent (which approval shall not be unreasonably withheld) unless
such Incremental Revolving Lender is a Lender, an Affiliate of a Lender or an
Approved Fund.  Such notice shall set
forth (i) the amount of the Incremental Term Loan Commitments and/or
Incremental Revolving Facility Commitments being requested (which shall be in
minimum increments of $5.0 million and a minimum amount of $25.0 million
or equal to the remaining Incremental Amount), (ii) the date on which such
Incremental Term Loan Commitments and/or Incremental Revolving Facility
Commitments are requested to become effective (the “Increased Amount Date”),
(iii) in the case of Incremental Revolving Facility Commitments, whether
such Incremental Revolving Facility Commitments are to be Revolving Loan
Commitments or commitments to make revolving loans with pricing and/or
amortization terms different from the Revolving Loans (“Other Revolving
Loans”), and (iv) in the case of Incremental Term Loan Commitments,
whether such Incremental Term Loan Commitments are to be Term Loan Commitments
or commitments to make term loans with pricing and/or amortization terms
different from the Term B Loans (“Other Term Loans”).


(a)           The Borrowers
and each Incremental Term Lender and/or Incremental Revolving Facility Lender
shall execute and deliver to the Administrative Agent an Incremental Assumption
Agreement and such other documentation as the Administrative Agent shall
reasonably specify to evidence the Incremental Term Loan Commitment of such
Incremental Term Lender and/or Incremental Revolving Facility Commitment of
such Incremental Revolving Facility Lender. 
Each Incremental Assumption Agreement shall specify the terms of the
applicable Incremental Term Loans and/or Incremental Revolving Facility
Commitments; provided, that (i) the Other Term Loans shall rank
pari passu or junior in right of payment and of security with the Term B
Loans, (ii) the final maturity date of any Other Term Loans shall be no
earlier than the Term B Facility Maturity Date and, except as to pricing,
amortization and final maturity date, shall have (x) the same terms as the
Term B Loans or (y) such other terms as shall be reasonably
satisfactory to the Administrative Agent, (iii) the weighted average life
to maturity of any Other Term Loans shall be no shorter than the remaining
weighted average life to maturity of the Term B Loans, (iv) the Other
Revolving Loans shall rank pari passu in right of payment and of security with
the Revolving Facility Loans, (v) the final maturity date of any Other
Revolving Loans shall be no earlier than the Revolving Facility Maturity Date
and, except as to pricing, amortization and final maturity date, shall have
(x) the same terms as the Revolving Facility Loans or (y) such other
terms as shall be reasonably satisfactory to the Administrative Agent, and
(vi) the weighted average life to maturity of any Other Revolving Loans
shall be no shorter than the remaining weighted average life to maturity of the
Revolving Facility Loans; provided, further that the interest
rate margin (which shall be deemed to include all upfront or similar fees or
original issue discount payable to all Lenders providing such Other Term Loan
and/or Other Revolving Loan) in respect of any Other Term Loan and/or Other
Revolving Loan shall be the same as that applicable to the Term Loans and/or
the Revolving Facility Loans; except that the interest rate margin in respect
of any Other Term Loan and/or Other Revolving 


 


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Loan (which shall be deemed
to include all upfront or similar fees or original issue discount payable to
all Lenders providing such Other Term Loan and/or Other Revolving Loan) may
exceed the Applicable Margin for the Term Loans and/or the Revolving Facility
Loans, respectively, by no more than 1⁄2 of 1% (it being understood
that any such increase may take the form of original issue discount (“OID”), with OID being equated
to the interest rates in a manner reasonably determined by the Administrative
Agent based on an assumed three-year life to maturity), or if it does so exceed
such Applicable Margin, such Applicable Margin shall be increased so that the
interest rate margin in respect of such Other Term Loan or Other Revolving Loan,
as the case may be (which shall be deemed to include all upfront or similar
fees or original issue discount payable to all Lenders providing such Other
Term Loan and/or Other Revolving Loan), is no more than 1⁄2 of 1% higher than the
Applicable Margin for the Term Loans or the Revolving Facility Loans,
respectively.  Each of the parties hereto
hereby agrees that, upon the effectiveness of any Incremental Assumption
Agreement, this Agreement shall be amended to the extent (but only to the
extent) necessary to reflect the existence and terms of the Incremental Term
Loan Commitments and/or Incremental Revolving Facility Commitments evidenced
thereby as provided for in Section 9.08(e).  Any such deemed amendment may be memorialized
in writing by the Administrative Agent with the Borrowers’ consent (not to be
unreasonably withheld) and furnished to the other parties hereto.


(b)           Notwithstanding
the foregoing, no Incremental Term Loan Commitment or Incremental Revolving
Facility Commitment shall become effective under this Section 2.21 unless
(i) on the date of such effectiveness, the conditions set forth in
paragraphs (b) and (c) of Section 4.01 shall be satisfied and the
Administrative Agent shall have received a certificate to that effect dated
such date and executed by a Responsible Officer of the Borrowers, (ii) the
Administrative Agent shall have received customary legal opinions, board
resolutions and other customary closing certificates and documentation as
required by the relevant Incremental Assumption Agreement and, to the extent
required by the Administrative Agent, consistent with those delivered on the
Closing Date under Section 4.02 and such additional customary documents
and filings (including amendments to the Mortgages and other Security Documents
and title endorsement bringdowns) as the Administrative Agent may reasonably
require to assure that the Incremental Term Loans and/or Revolving Facility
Loans in respect of Incremental Revolving Facility Commitments are secured by
the Collateral ratably with (or, to the extent agreed by the applicable
Incremental Term Lenders in the applicable Incremental Assumption Agreement,
junior to) the existing Term B Loans and Revolving Facility Loans and
(iii) the Borrowers shall be in Pro Forma Compliance after giving effect
to such Incremental Term Loan Commitment and/or Incremental Revolving Facility
Commitments and the Loans to be made thereunder and the application of the
proceeds therefrom as if made and applied on such date.


(c)           Each of the
parties hereto hereby agrees that the Administrative Agent may take any and all
action as may be reasonably necessary to ensure that (i) all Incremental
Term Loans (other than Other Term Loans) in the form of additional Term B
Loans, when originally made, are included in each Borrowing of outstanding Term
B Loans on a pro rata basis, and (ii) all Revolving Facility Loans in
respect of Incremental Revolving Facility Commitments (other than Other
Revolving Loans), when originally made, are included in each Borrowing of
outstanding Revolving Facility Loans on a pro rata basis.  The Borrowers agree that Section 2.16
shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably
required by the Administrative Agent to effect the foregoing.


 


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ARTICLE
III


 


Representations
and Warranties


 


On the date of each Credit Event as provided in
Section 4.01, the Borrowers represent and warrant to each of the Lenders
that:


SECTION 3.01.  Organization;
Powers.  Except as set forth on
Schedule 3.01, each of Holdings (prior to a Qualified IPO), the Borrowers
and each of the Material Subsidiaries (a) is a 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 in each
jurisdiction where such qualification is required, except where the failure so
to qualify would not reasonably be expected to have a Material Adverse Effect,
and (d) has the power and authority to execute, deliver and perform its
obligations under each of the Loan Documents and each other agreement or
instrument contemplated thereby to which it is or will be a party and, in the
case of the Borrowers, to borrow and otherwise obtain credit hereunder.


SECTION 3.02.  Authorization.  The execution, delivery and performance by
Holdings (prior to a Qualified IPO), the Borrowers 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, partnership
or limited liability company action required to be obtained by Holdings, the
Borrowers and such Subsidiary Loan Parties and (b) will not
(i) violate (A) any provision of law, statute, rule or regulation, or
of the certificate or articles of incorporation or other constitutive documents
(including any partnership, limited liability company or operating agreements)
or by-laws of Holdings, the Borrowers 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 Borrowers 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) or (ii) of this Section 3.02(b), would 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
(prior to a Qualified IPO), the Borrowers or any such Subsidiary Loan Party,
other than the Liens created by the Loan Documents and Permitted Liens.


SECTION 3.03.  Enforceability.  This Agreement has been duly executed and
delivered by Holdings and the Borrowers 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 


 


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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, the perfection or maintenance of the Liens created under the
Security Documents or the exercise by any Agent or any Lender of its rights
under the Loan Documents or the remedies in respect of the Collateral, 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 and approvals the failure of which
to be obtained or made would 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
unaudited pro forma consolidated balance sheet and related consolidated
statements of income and cash flows of the Borrowers, together with its
consolidated Subsidiaries (including the notes thereto) (the “Pro Forma
Financial Statements”) and pro forma EBITDA (the “Pro Forma EBITDA”),
for the fiscal year ending March 31, 2006, copies of which have heretofore
been furnished to each Lender (via inclusion in the Information Memorandum),
have been prepared giving effect (as if such events had occurred on such date,
with respect to the balance sheet, or on the first day of such fiscal year with
respect to such other financial statements) to the Transactions.  Each of the Pro Forma Financial Statements
and the Pro Forma EBITDA has been prepared in good faith based on assumptions
believed by the Borrowers to have been reasonable as of the date of delivery
thereof (it being understood that such assumptions are based on good faith
estimates of certain items and that the actual amount of such items on the
Closing Date is subject to change), and presents fairly in all material
respects on a pro forma basis the estimated financial position of the Borrowers
and their consolidated Subsidiaries as at March 31, 2006, assuming that
the Transactions had actually occurred at such date, and the results of
operations of Borrowers and their consolidated subsidiaries for the
twelve-month period ended March 31, 2006, assuming that the Transactions
had actually occurred on the first day of such twelve-month period.


(b)           The audited
consolidated balance sheets of Target and its consolidated subsidiaries as at
March 31, 2004, 2005 and 2006, and the audited consolidated statements of
income, stockholders’ equity and cash flows for such fiscal years, reported on
by and accompanied by a report from Ernst & Young LLP, copies of which
have heretofore been furnished to each Lender, present fairly in all material
respects the consolidated financial position of Target as at such date and the
consolidated results of operations, shareholders’ equity and cash flows of
Target for the years then ended.


SECTION 3.06.  No
Material Adverse Effect.  Since
March 31, 2006, there has been no event or circumstance that, individually
or in the aggregate with other events or circumstances, has or would reasonably
be expected to have a Material Adverse Effect.


 


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SECTION 3.07.  Title
to Properties; Possession Under Leases.  (a)  Each of Holdings (prior to
Qualified IPO), the Borrowers and the Subsidiaries has good and insurable fee
simple title to, or valid leasehold interests in, or easements or other limited
property interests in, all its Real Properties (including all Mortgaged
Properties) and has good and marketable title to its personal property and
assets, in each case, except for Permitted Liens and except for defects in
title that do not materially interfere with its ability to conduct its business
as currently conducted or to utilize such properties and assets for their
intended purposes and except where the failure to have such title would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.  All such properties and assets
are free and clear of Liens, other than Permitted Liens or Liens arising by
operation of law.


(b)           Each of the
Borrowers and the Subsidiaries has complied with all material obligations under
all leases to which it is a party, except where the failure to comply would not
reasonably be considered to have Material Adverse Effect, and all such leases
are in full force and effect, except leases in respect of which the failure to
be in full force and effect would not reasonably be expected to have a Material
Adverse Effect.  Except as set forth on Schedule 3.07(b),
each of Holdings, the Borrowers and each of the Subsidiaries enjoys peaceful
and undisturbed possession under all such leases, other than leases in respect
of which the failure to enjoy peaceful and undisturbed possession would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.


(c)           Each of the
Borrowers and the Subsidiaries owns or possesses, or is licensed to use, all
patents, trademarks, service marks, trade names and copyrights, all
applications for any of the foregoing and all licenses and rights with respect
to the foregoing necessary for the present conduct of its business, without any
conflict (of which the Borrowers have been notified in writing) with the rights
of others, and free from any burdensome restrictions on the present conduct of
Target, except where such conflicts and restrictions would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect
or except as set forth on Schedule 3.07(c).


(d)           As of the
Closing Date, none of the Borrowers and the Subsidiaries has received any
written notice of any pending or contemplated condemnation proceeding affecting
any of the Mortgaged Properties or any sale or disposition thereof in lieu of
condemnation that remains unresolved as of the Closing Date.


(e)           None of
Holdings, the Borrowers and their Subsidiaries is obligated on the Closing Date
under any right of first refusal, option or other contractual right to sell,
assign or otherwise dispose of any Mortgaged Property or any interest therein,
except as permitted under Section 6.02 or 6.05.


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 Equity Interests owned by Holdings
or by any such subsidiary.


(b)           As of the
Closing Date, after giving effect to the Transactions, there are no outstanding
subscriptions, options, warrants, calls, rights or other agreements or
commitments 


 


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(other than stock options
granted to employees or directors (or entities controlled by directors) and
shares held by directors (or entities controlled by directors)) relating to any
Equity Interests of Holdings, the Borrowers or any of the Subsidiaries, except
as set forth on Schedule 3.08(b).


SECTION 3.09.  Litigation;
Compliance with Laws.  (a)  There
are no actions, suits or proceedings at law or in equity or by or on behalf of
any Governmental Authority or in arbitration now pending, or, to the knowledge
of Holdings (prior to a Qualified IPO) or the Borrowers, threatened in writing
against or affecting Holdings or the Borrowers or any of the 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 (prior to a Qualified IPO), the Borrowers, the Subsidiaries and their
respective properties or assets is in violation of (nor will the continued
operation of their material properties and assets as currently conducted
violate) any law, rule or regulation (including any zoning, building,
ordinance, code or approval or any building permit, but excluding any
Environmental Laws, which 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 would reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.


SECTION 3.10.  Federal
Reserve Regulations. 
(a)  None of Holdings (prior to a Qualified IPO), the
Borrowers and the 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 3.11.  Investment
Company Act.  None of Holdings (prior
to a Qualified IPO), the Borrowers and the Subsidiaries is an “investment
company” as defined in, or subject to regulation under, the Investment Company
Act of 1940, as amended.


SECTION 3.12.  Use
of Proceeds.  The Borrowers will use
the proceeds of the Revolving Facility Loans and Swingline Loans solely for
general corporate purposes (including, without limitation, for Permitted
Business Acquisitions) and, in the case of up to $35.0 million, plus any
amount necessary to fund any working capital adjustment pursuant to the Merger
Agreement, of Revolving Facility Loans made on the Closing Date, and the
Term B Loans (a) to fund a portion of the merger consideration for
the Merger, (b) to finance the Debt Tender Offer and the Consent
Solicitation, (c) to refinance the Existing Credit Agreement and
(d) to pay the Transaction Expenses. 
The Letters of Credit are to be used solely for general corporate
purposes (including, without limitation, for the back-up or replacement
of letters of credit).


 


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SECTION 3.13.  Tax
Returns.  Except as set forth on
Schedule 3.13:


(a)           Each of Holdings, the Borrowers and
the Subsidiaries has filed or caused to be filed all 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;


(b)           Each of Holdings, the Borrowers 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 Taxes 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 Borrowers or any of the
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,
would, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; and


(c)           Other than as would not be,
individually or in the aggregate, reasonably expected to have a Material
Adverse Effect:  as of the Closing Date,
with respect to each of Holdings, the Borrowers and the Subsidiaries, there are
no claims being asserted in writing with respect to any Taxes.


SECTION 3.14.  No
Material Misstatements. 
(a)  All written information (other than the Projections,
estimates and information of a general economic nature) (the “Information”)
concerning Holdings, the Borrowers, the Subsidiaries, the Transactions and any
other transactions contemplated hereby included in the Information Memorandum
or otherwise prepared by or on behalf of the foregoing or their representatives
and made available to any Lenders or the Administrative Agent in connection
with the Transactions or the other transactions contemplated hereby, when taken
as a whole, was true and correct in all material respects, as of the date such
Information was furnished to the Lenders and as of the Closing Date and did
not, taken as a whole, contain any untrue statement of a material fact as of
any such date or omit to state a material fact necessary in order to make the
statements contained therein, taken as a whole, not materially misleading in
light of the circumstances under which such statements were made.


(b)           The Projections
and estimates and information of a general economic nature prepared by or on
behalf of the Borrowers or any of their representatives and that have been made
available to any Lenders or the Administrative Agent in connection with the
Transactions or the other transactions contemplated hereby (i) have been
prepared in good faith based upon assumptions believed by the Borrowers to be
reasonable as of the date thereof (it being understood that actual results may
vary materially from the Projections), as of the date such Projections and
estimates were furnished to the Lenders and as of the Closing Date, and
(ii) as of the Closing Date, have not been modified in any material
respect by the Borrowers.


SECTION 3.15.  Employee
Benefit Plans.  (a)  Except
as would not reasonably be expected, individually or in the aggregate, to have
a Material Adverse Effect:  (i) each
Plan is in 


 


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compliance in all
material respects with the applicable provisions of ERISA and the Code;
(ii) no Reportable Event has occurred during the past five years as to
which the Borrowers, Holdings, any of their Subsidiaries or any ERISA Affiliate
was required to file a report with the PBGC, other than reports that have been
filed; (iii) no Plan has any Unfunded Pension Liability in excess of
$40.0 million; (iv) no ERISA Event has occurred or is reasonably
expected to occur; and (v) none of the Borrowers, Holdings, the
Subsidiaries and the ERISA Affiliates (A) has received any written
notification that any Multiemployer Plan is in reorganization 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 to be
terminated or (B) has incurred or is reasonably expected to incur any
withdrawal liability to any Multiemployer Plan.


(b)           Each of
Holdings, the Borrowers and the Subsidiaries is in compliance (i) with all
applicable provisions of law and all applicable regulations and published
interpretations thereunder with respect to any employee pension benefit plan or
other employee benefit plan governed by the laws of a jurisdiction other than
the United States and (ii) with the terms of any such plan, except, in
each case, for such noncompliance that would not reasonably be expected to have
a Material Adverse Effect.


SECTION 3.16.  Environmental
Matters.  Except as to matters that
would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect:  (i) no
written notice, request for information, order, complaint or penalty has been
received by the Borrowers or any of their Subsidiaries, and there are no
judicial, administrative or other actions, suits or proceedings pending or, to
the Borrowers’ knowledge, threatened which allege a violation of or liability
under any Environmental Laws, in each case relating to the Borrowers or any of
their Subsidiaries or their respective properties, (ii) each of the
Borrowers and their Subsidiaries has all environmental permits, licenses and
other approvals necessary for its operations to comply with all applicable
Environmental Laws (“Environmental Permits”) and is, and during the term
of all applicable statutes of limitation, has been, in compliance with the
terms of such Environmental Permits and with all other applicable Environmental
Laws, (iii) to the Borrowers’ knowledge, no Hazardous Material is located
at, on or under any property currently or formerly owned, operated or leased by
the Borrowers or any of their Subsidiaries or their predecessors that would
reasonably be expected to give rise to any cost, liability or obligation of the
Borrowers or any of their Subsidiaries under any Environmental Laws or
Environmental Permits, and no Hazardous Material has been generated, used,
treated, stored, handled or controlled, disposed, transported to or Released
at, on, from, to or under any location in a manner that would reasonably be
expected to give rise to any cost, liability or obligation of the Borrowers or
any of their Subsidiaries under any Environmental Laws or Environmental
Permits, (iv) there are no agreements in which the Borrowers or any of
their Subsidiaries has expressly assumed or undertaken responsibility for any
known or reasonably likely liability or obligation of any other person arising
under or relating to Environmental Laws, which in any such case has not been
made available to the Administrative Agent prior to the date hereof, and (v) there
has been no material written environmental assessment or audit conducted since
January 1, 2002, by or on behalf of the Borrowers or any of the
Subsidiaries of any property currently or, to the Borrowers’ knowledge,
formerly owned or leased by the Borrowers or any of the Subsidiaries that has
not been made available to the Administrative Agent prior to the date hereof.


 


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SECTION 3.17.  Security
Documents.  (a)  The
Collateral Agreement is effective to create in favor of the Collateral 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 Collateral Agent, and in the case of the other Collateral
described in the Collateral Agreement (other than the Intellectual Property (as
defined in the Collateral Agreement)), when financing statements and other
filings specified in the Perfection Certificate are filed in the offices
specified in the Perfection Certificate, the Collateral 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, Permitted
Liens and Liens having priority by operation of law).


(b)           When the
Collateral Agreement or a summary thereof is properly filed in the United
States Patent and Trademark Office and the United States Copyright Office, and,
with respect to Collateral in which a security interest cannot be perfected by
such filings, upon the proper filing of the financing statements referred to in
paragraph (a) above, the Collateral Agent (for the benefit of the Secured
Parties) shall have a fully perfected (subject to exceptions arising from defects
in the chain of title, which defects in the aggregate do not constitute a
Material Adverse Effect hereunder) Lien on, and security interest in, all
right, title and interest of the Loan Parties thereunder in the domestic
Intellectual Property, in each case prior and superior in right to any other
person (it being understood that subsequent recordings in the United States
Patent and Trademark Office and the United States Copyright Office may be
necessary to perfect a Lien on registered trademarks and patents, trademark and
patent applications and registered copyrights acquired by the grantors after
the Closing Date).


(c)           Each Foreign
Pledge Agreement, if any, shall be effective to create in favor of the
Collateral Agent, for the benefit of the Secured Parties, a legal, valid and
enforceable security interest in the Collateral described therein and proceeds
thereof to the extent permissible under applicable law.  In the case of the Pledged Collateral
described in a Foreign Pledge Agreement, when certificates representing such
Pledged Collateral (if any) are delivered to the Collateral Agent, the
Collateral 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 the proceeds thereof, as security for
the Obligations, in each case prior and superior in right to any other person.


(d)           The Mortgages
executed and delivered on the Closing Date are, and the Mortgages executed and
delivered after the Closing Date pursuant to Section 5.10 shall be,
effective to create in favor of the Collateral 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 Collateral 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 


 


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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 Permitted Liens and Liens having priority by operation of
law.


(e)           Notwithstanding
anything herein (including this Section 3.17) or in any other Loan
Document to the contrary, other than to the extent set forth in the applicable
Foreign Pledge Agreements, no Borrower or any other Loan Party makes any
representation or warranty as to the effects of perfection or non-perfection,
the priority or the enforceability of any pledge of or security interest in any
Equity Interests of any Foreign Subsidiary that is not a Loan Party, or as to
the rights and remedies of the Agents or any Lender with respect thereto, under
foreign law.


SECTION 3.18.  Location
of Real Property and Leased Premises. 
(a)  The Perfection Certificate lists correctly, in all
material respects, as of the Closing Date all material Real Property owned by
Holdings, the Borrowers and the Subsidiary Loan Parties and the addresses
thereof.  As of the Closing Date,
Holdings, the Borrowers and the Subsidiary Loan Parties own in fee all the Real
Property set forth as being owned by them on such Schedules.


(b)           The Perfection
Certificate lists correctly in all material respects, as of the Closing Date,
all material Real Property leased by Holdings, the Borrowers and the Subsidiary
Loan Parties and the addresses thereof. 
As of the Closing Date, Holdings, the Borrowers and the Subsidiary Loan
Parties have in all material respects valid leases in all the Real Property set
forth as being leased by them on such Schedules.


SECTION 3.19.  Solvency.  (a)  Immediately after giving
effect to the Transactions on the Closing Date, (i) the fair value of the
assets of the Borrowers (individually) and Holdings, the Borrowers and their
Subsidiaries on a consolidated basis, at a fair valuation, will exceed the
debts and liabilities, direct, subordinated, contingent or otherwise, of the
Borrowers (individually) and Holdings, the Borrowers and their Subsidiaries on
a consolidated basis, respectively; (ii) the present fair saleable value
of the property of the Borrowers (individually) and Holdings, the Borrowers and
their Subsidiaries on a consolidated basis will be greater than the amount that
will be required to pay the probable liability of the Borrowers (individually)
and Holdings, the Borrowers and their 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) the Borrowers (individually) and Holdings, the
Borrowers and their 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; and (iv) the
Borrowers (individually) and Holdings, the Borrowers and their 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.


(b)           Neither
Holdings (prior to a Qualified IPO) nor the Borrowers intends to, and neither
Holdings (prior to a Qualified IPO) nor the Borrowers believes that it or any
of its Subsidiaries will, incur debts beyond its ability 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.


 


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SECTION 3.20.  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 threatened against Holdings (prior to a
Qualified IPO), the Borrowers or any of the Subsidiaries; (b) the hours
worked and payments made to employees of Holdings (prior to a Qualified IPO),
the Borrowers and the 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 Holdings (prior to a Qualified IPO), the Borrowers
or any of the Subsidiaries or for which any claim may be made against Holdings
(prior to a Qualified IPO), the Borrowers or any of the 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 Holdings (prior to a
Qualified IPO), the Borrowers or such 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 Holdings (prior to a
Qualified IPO), the Borrowers or any of the Subsidiaries (or any predecessor)
is a party or by which Holdings (prior to a Qualified IPO), the Borrowers or
any of the Subsidiaries (or any predecessor) is bound.


SECTION 3.21.  Insurance.  Schedule 3.21 sets forth a true,
complete and correct description of all material insurance maintained by or on
behalf of Holdings, the Borrowers or the Subsidiaries as of the Closing
Date.  As of such date, such insurance is
in full force and effect.


SECTION 3.22.  No
Default.  No Default or Event of
Default has occurred and is continuing or would result from the consummation of
the transactions contemplated by this Agreement or any other Loan Document.


SECTION 3.23.  Intellectual
Property; Licenses, Etc.  Except as
would not reasonably be expected to have a Material Adverse Effect and as set
forth in Schedule 3.23, (a) the Borrowers and each of their
Subsidiaries owns, or possesses the right to use, all of the patents,
registered trademarks, registered service marks or trade names, registered
copyrights or mask works, domain names, applications and registrations for any
of the foregoing (collectively, “Intellectual Property Rights”) that are
reasonably necessary for the operation of their respective businesses, without
conflict with the rights of any other person, (b) to the best knowledge of
the Borrowers, the Borrowers and their Subsidiaries are not interfering with,
infringing upon, misappropriating or otherwise violating Intellectual Property
Rights of any person, and (c) no claim or litigation regarding any of the
foregoing is pending or, to the best knowledge of the Borrowers, threatened.


SECTION 3.24.  Senior
Debt.  The Obligations constitute “Senior
Debt” (or the equivalent thereof) and “Designated Senior Debt” (or the
equivalent thereof) under the Senior Subordinated Notes Indenture and under the
documentation governing any Permitted Additional Debt constituting subordinated
Indebtedness or any Permitted Refinancing Indebtedness in respect of the Senior
Subordinated Notes or any Permitted Additional Debt constituting subordinated
Indebtedness.


 


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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 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).


(b)           (i) In the case of each Credit
Event that occurs on the Closing Date, the conditions in Section 9.2(a) of
the Merger Agreement (but only with respect to representations and warranties
that are material to the interests of the Lenders, and only to the extent that
Merger Sub has the right to terminate its obligations under the Merger
Agreement as a result of a breach of such representations in the Merger
Agreement) shall be satisfied, and the representations and warranties made in
Sections 3.01(b) and (d), 3.02(a), 3.03, 3.10, 3.11, 3.17 and 3.24 (the “Specified
Representations”) shall be true and correct in all material respects; and
(ii) in the case of each other Credit Event, the representations and
warranties set forth in the Loan Documents 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), as applicable, 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).


(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 and, in the
case of each Credit Event that occurs on the Closing Date, other than a Default
or Event of Default arising solely under Section 7.01(a) with respect to
the breach of a representation other than a Specified Representation), as
applicable, no Event of Default or Default shall have occurred and be
continuing.


Each such Borrowing and each issuance, amendment,
extension or renewal of a Letter of Credit shall be deemed to constitute a
representation and warranty by the Borrowers on the date of such Borrowing,
issuance, amendment, extension or renewal as applicable, as to the matters
specified in paragraphs (b) and (c) of this Section 4.01.


 


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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 telecopy 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 favorable written opinion of (i) O’Melveny & Myers LLP,
special counsel for the Loan Parties, in form and substance reasonably
satisfactory to the Administrative Agent and (ii) local counsel reasonably
satisfactory to the Administrative Agent as specified on Schedule 4.02(b),
in each case (A) dated the Closing Date, (B) addressed to each
Issuing Bank on the Closing Date, the Administrative Agent and the Lenders and
(C) in form and substance reasonably satisfactory to the Administrative
Agent and covering such other matters relating to the Loan Documents as the
Administrative Agent shall reasonably request.


(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, certificate of formation
or other equivalent constituent and governing documents, including all
amendments thereto, of each Loan Party, (A) in the case of a corporation,
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) or (B) otherwise
(i) certified by the Secretary or Assistant Secretary of each such Loan
Party or other person duly authorized by the constituent documents of such Loan
Party or (ii) otherwise in form and substance reasonably satisfactory to
the Administrative Agent;


(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 partnership agreement, limited liability
company agreement or other equivalent constituent and 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 


 


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of the Loan Documents to
which such person is a party and, in the case of the Borrowers, 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
or other equivalent constituent and governing documents of such Loan Party have
not been amended since the date of the last amendment thereto disclosed
pursuant to clause (i) above,


(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 and


(E)           as to the absence of any pending
proceeding for the dissolution or liquidation of such Loan Party or, to the
knowledge of such person, threatening the existence of such Loan Party;


(iii)          a certificate of a director or 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)          such other documents as the
Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may
reasonably request (including without limitation, tax identification numbers
and addresses).


(d)           The elements of the Collateral and
Guarantee Requirement required to be satisfied on the Closing Date shall have
been satisfied and the Administrative Agent shall have received a completed
Perfection Certificate dated the Closing Date and signed by a Responsible
Officer of Holdings and the Borrowers, together with all attachments
contemplated thereby, and the results of a search of the Uniform Commercial
Code (or equivalent) filings made with respect to the Loan Parties in the
jurisdictions contemplated by the Perfection Certificate and copies of the
financing statements (or similar documents) disclosed by such search and
evidence reasonably satisfactory to the Administrative Agent that the Liens
indicated by such financing statements (or similar documents) are Permitted
Liens or have been released; provided that, to the extent any security
interest in the intended Collateral or any deliverable related to the
perfection of security interests in the intended Collateral (other than any
Collateral the security interest in which may be perfected by the filing of a
Uniform Commercial Code financing statement or the delivery of stock
certificates or other instruments representing Equity Interests and the
security agreement giving rise to the security interest therein) is not able to
be provided on the Closing Date after the Borrowers’ use of commercially reasonable
efforts to do so, such requirements may be satisfied after the Closing Date in
accordance with Section 5.10.


(e)           The Merger shall have been
consummated or shall be consummated simultaneously with or immediately
following the closing under this Agreement in accordance with applicable law
and on the terms and conditions of the Merger as set forth in the Merger 


 


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Documents, without giving
effect to any waiver or other modification thereof that is materially adverse
to the interests of the Lenders without the prior written consent of the
Administrative Agent.


(f)            The Equity Financing shall have been
consummated.


(g)           The Borrowers shall have received
gross cash proceeds of not less than (i) $485.0 million from the
issuance of the Senior Unsecured Notes and (ii) $300.0 million from
the incurrence of the issuance of the Senior Subordinated Notes.


(h)           The terms and conditions of the
Senior Unsecured Notes and the Senior Subordinated Notes (including terms and
conditions relating to the interest rate, fees, amortization, maturity,
subordination (in the case of the Senior Subordinated Notes), covenants,
defaults and remedies) shall be as set forth in the Senior Unsecured Notes
Indenture and the Senior Subordinated Notes Indenture or otherwise reasonably
satisfactory to the Administrative Agent.


(i)            Target shall have purchased, or
caused to be purchased, each of the issued and outstanding Existing Senior
Subordinated Notes validly tendered and not withdrawn in the Debt Tender Offer
and, to the extent not all the Existing Senior Subordinated Notes shall have
been so purchased, the requisite consents in connection with the Consent
Solicitation shall have been obtained, and the Existing Senior Subordinated
Notes Indenture shall have been amended pursuant to an effective supplemental
indenture that removes the significant negative covenants therefrom.


(j)            All amounts due or outstanding in
respect of the Existing Credit Agreement shall have been (or substantially
simultaneously with the closing under this Agreement shall be) paid in full,
all commitments in respect thereof terminated and all guarantees thereof and
security therefor discharged and released, and the Administrative Agent shall
have received reasonably satisfactory evidence thereof.


(k)           The Lenders shall have received the
financial statements referred to in Section 3.05.


(l)            On the Closing Date, after giving
effect to the Transactions and the other transactions contemplated hereby,
Holdings shall have outstanding no Indebtedness and the Borrowers and the
Subsidiaries shall have outstanding no Indebtedness other than (i) the
Loans and other extensions of credit under this Agreement, (ii) the Senior
Unsecured Notes, (iii) the Senior Subordinated Notes, and (iv) other
Indebtedness permitted pursuant to Section 6.01.


(m)          The Lenders shall have received a
solvency certificate substantially in the form of Exhibit C and
signed by a Financial Officer of the Borrowers confirming the solvency of
Borrowers and their Subsidiaries on a consolidated basis after giving effect to
the Transactions on the Closing Date.


(n)           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 


 


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invoiced, reimbursement or
payment of all reasonable out-of-pocket expenses (including reasonable fees, charges
and disbursements of Cravath, Swaine & Moore LLP) required to be
reimbursed or paid by the Loan Parties hereunder or under any Loan Document.


(o)           The Administrative Agent shall have
received insurance certificates satisfying the requirements of Section 5.02
of the Agreement.


(p)           The Administrative Agent shall have
received, at least three Business 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.


For purposes of determining compliance with the
conditions specified in this Section 4.02, each Lender shall be deemed to
have consented to, approved or accepted or to be satisfied with each document
or other matter required thereunder to be consented to or approved by or
acceptable or satisfactory to the Lenders unless an officer of the
Administrative Agent responsible for the transactions contemplated by the Loan Documents
shall have received notice from such Lender prior to the Closing Date
specifying its objection thereto and such Lender shall not have made available
to the Administrative Agent such Lender’s ratable portion of the initial
Borrowing.


 


ARTICLE
V


 


Affirmative
Covenants


 


The Borrowers covenant and agree with each Lender that
so long as this Agreement shall remain in effect (other than in respect of
contingent indemnification and expense reimbursement obligations for which no
claim has been made) 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 shall have been paid in full and all
Letters of Credit have been canceled or have expired and all amounts drawn or
paid thereunder have been reimbursed in full, unless the Required Lenders shall
otherwise consent in writing, the Borrowers will, and will cause each of the
Material Subsidiaries to:


SECTION
5.01.  Existence; Business 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, in the case of a Subsidiary of the
Borrowers, where the failure to do so would not reasonably be expected to have
a Material Adverse Effect, and except as otherwise expressly permitted under
Section 6.05, and except for the liquidation or dissolution of
Subsidiaries if the assets of such Subsidiaries to the extent they exceed
estimated liabilities are acquired by the Borrowers or a Wholly Owned
Subsidiary of the Borrowers in such liquidation or dissolution; provided, that
Subsidiary Loan Parties may not be liquidated into Subsidiaries that are not
Loan Parties and Domestic Subsidiaries may not be liquidated into Foreign
Subsidiaries.


(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, 


 


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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 necessary to the normal conduct of its
business, and (ii) at all times maintain and preserve all property
necessary to the normal conduct of its business and keep such property in good
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 necessary in order that the business carried on in
connection therewith, if any, may be properly conducted at all times (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 and cause the Collateral Agent to be listed as a co-loss payee
on property and casualty policies and as an additional insured on liability
policies.


(b)           With respect to
any Mortgaged Properties, if at any time the area in which the Premises (as
defined in the Mortgages) are located is designated a “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.


(c)           In connection
with the covenants set forth in this Section 5.02, it is understood and
agreed that:


(i)            none of the Administrative Agent,
the Lenders, the Issuing Bank and their respective agents or employees shall be
liable for any loss or damage insured by the insurance policies required to be
maintained under this Section 5.02, it being understood that (A) the
Loan Parties shall look solely to their insurance companies or any other
parties other than the aforesaid parties for the recovery of such loss or
damage and (B) such insurance companies shall have no rights of
subrogation against the Administrative Agent, the Lenders, any Issuing Bank or
their agents or employees.  If, however,
the insurance policies, as a matter of the internal policy of such insurer, do
not provide waiver of subrogation rights against such parties, as required
above, then each of Holdings and the Borrowers, on behalf of itself and behalf
of each of its Subsidiaries, hereby agrees, to the extent permitted by law, to
waive, and further agrees to cause each of their Subsidiaries to waive, its
right of recovery, if any, against the Administrative Agent, the Lenders, any
Issuing Bank and their agents and employees; and


(ii)           the designation of any form, type or
amount of insurance coverage by the Administrative Agent under this
Section 5.02 shall in no event be deemed a representation, warranty or
advice by the Administrative Agent or the Lenders that such insurance is
adequate for the purposes of the business of Holdings, the Borrowers and the
Subsidiaries or the protection of their properties.


 


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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 before the same shall become delinquent or in default, as well as
all lawful claims which, if unpaid, might give rise to a Lien other than a
Permitted Lien upon such properties or any part thereof; provided, however,
that such payment and discharge shall not be required with respect to any such Tax
assessment, charge, levy or claim so long as (a) the validity or amount
thereof shall be contested in good faith by appropriate proceedings or
procedures and (b) Holdings, the Borrowers or the affected Subsidiary, as
applicable, shall have set aside on its books reserves in accordance with GAAP
with respect thereto.


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


(a)           within 90 days (or, if
applicable, such shorter period as the SEC shall specify for the filing of
annual reports on Form 10-K) after the end of each fiscal year
(commencing with the fiscal year ending March 31, 2007), a consolidated
balance sheet and related statements of operations, cash flows and owners’
equity showing the financial position of the Borrowers and their Subsidiaries
as of the close of such fiscal year and the consolidated results of their
operations during such year and, starting with the fiscal year ending
March 31, 2007, 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 not be qualified as to
scope of audit or as to the status of the Borrowers or any Material Subsidiary
as a going concern) to the effect that such consolidated financial statements
fairly present, in all material respects, the financial position and results of
operations of the Borrowers and their Subsidiaries on a consolidated basis in
accordance with GAAP (it being understood that the delivery by the Borrowers of
annual reports on Form 10-K of the Borrowers and their consolidated
Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the
extent such annual reports include the information specified herein);


(b)           within 45 days (or, if
applicable, such shorter period as the SEC shall specify for the filing of
quarterly reports on Form 10-Q) after the end of each of the first
three fiscal quarters of each fiscal year (commencing with the fiscal quarter
ending September 30, 2006), a consolidated balance sheet and related
statements of operations and cash flows showing the financial position of the
Borrowers and their Subsidiaries as of the close of such fiscal quarter and the
consolidated results of their 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 Borrowers on behalf of the Borrowers as fairly
presenting, in all material respects, the financial position and results of
operations of the Borrowers and their 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 Borrowers
of quarterly reports on Form 10-Q of the Borrowers and their
consolidated Subsidiaries shall satisfy the requirements of this
Section 5.04(b) to the extent such quarterly reports include the
information specified herein);


 


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(c)           (x) concurrently with any
delivery of financial statements under paragraphs (a) or (b) above, a
certificate of a Financial Officer of the Borrowers (i) certifying that no
Event of Default or Default has occurred or, if such 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, (ii) commencing
with the fiscal period ending December 31, 2006, setting forth
computations in reasonable detail satisfactory to the Administrative Agent
demonstrating compliance with the Financial Performance Covenant,
(iii) setting forth the calculation and uses of the Cumulative Credit for
the fiscal period then ended if the Borrowers shall have used the Cumulative
Credit for any purpose during such fiscal period, and (iv) certifying a list
of names of all Immaterial Subsidiaries, that each Subsidiary set forth on such
list individually qualifies as an Immaterial Subsidiary and that all such
Subsidiaries in the aggregate (together with all Unrestricted Subsidiaries) do
not exceed the limitation set forth in clause (b) of the definition of the
term “Immaterial Subsidiary”, and (y) concurrently with any delivery of
financial statements under paragraph (a) above, if the accounting firm is
not restricted from providing such a certificate by the policies of its
national office, 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 (which
certificate may be limited to accounting matters and disclaim responsibility
for legal interpretations);


(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 (prior to a Qualified IPO), the
Borrowers or any of the Subsidiaries with the SEC, or after an initial public
offering, distributed to its stockholders generally, as applicable; provided,
however, that such reports, proxy statements, filings and other
materials required to be delivered pursuant to this clause (d) shall be
deemed delivered for purposes of this Agreement when posted to the website of
the Borrower;


(e)           within 90 days after the
beginning of each fiscal year, a reasonably detailed consolidated quarterly
budget for such fiscal year (including a projected consolidated balance sheet
of the Borrowers and their Subsidiaries as of the end of the following fiscal
year, and the related consolidated statements of projected cash flow and
projected income), 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 Borrowers to
the effect that the Budget is based on assumptions believed by such Financial
Officer to be reasonable as of the date of delivery thereof;


(f)            upon the reasonable request of the
Administrative Agent, an updated Perfection Certificate (or, to the extent such
request relates to specified information contained in the Perfection
Certificate, such information) reflecting all changes since the date of the
information most recently received pursuant to this paragraph (f) or
Section 5.10(f);


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


 


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(h)           in the event that (i) in respect
of the Senior Unsecured Notes or the Senior Subordinated Notes, and any
Refinancing Indebtedness with respect thereto, the rules and regulations of the
SEC permit the Borrowers, Holdings or any Parent Entity to report at Holdings’
or such Parent Entity’s level on a consolidated basis and (ii) Holdings or
such Parent Entity, as the case may be, is not engaged in any business or
activity, and does not own any assets or have other liabilities, other than
those incidental to its ownership directly or indirectly of the Equity
Interests of the Borrowers and the incurrence of Indebtedness for borrowed
money (and, without limitation on the foregoing, does not have any subsidiaries
other than the Borrowers and the Subsidiaries and any direct or indirect parent
companies of the Borrowers that are not engaged in any other business or
activity and do not hold any other assets or have any liabilities except as
indicated above) such consolidated reporting at such Parent Entity’s level in a
manner consistent with that described in paragraphs (a) and (b) of this Section 5.04
for the Borrowers (together with a reconciliation showing the adjustments
necessary to determine compliance by the Borrowers and their Subsidiaries with
the Financial Performance Covenant) will satisfy the requirements of such
paragraphs.


SECTION
5.05.  Litigation and Other Notices.  Furnish to the
Administrative Agent (which will promptly thereafter furnish to the Lenders)
written notice of the following promptly after any Responsible Officer of
Holdings (prior to a Qualified IPO) or the Borrowers obtains actual knowledge
thereof:


(a)           any Event of Default or 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 Borrowers or
any of the Subsidiaries as to which an adverse determination is reasonably
probable and which, if adversely determined, would reasonably be expected to
have a Material Adverse Effect;


(c)           any other development specific to
Holdings, the Borrowers or any of the Subsidiaries that is not a matter of general
public knowledge and that has had, or would reasonably be expected to have, a
Material Adverse Effect; and


(d)           the development of any
ERISA Event that, together with all other ERISA Events that have developed or
occurred, would 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, would 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 5.09, 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 accordance
with GAAP and permit any persons designated by 


 


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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 (prior to a Qualified IPO), the Borrowers or any of the Subsidiaries
at reasonable times, upon reasonable prior notice to Holdings (prior to a
Qualified IPO) or the Borrowers, 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 (prior to a Qualified IPO) or the Borrowers to discuss the affairs,
finances and condition of Holdings (prior to a Qualified IPO), the Borrowers or
any of the Subsidiaries with the officers thereof and independent accountants
therefor (subject to reasonable requirements of confidentiality, including
requirements imposed by law or by contract).


SECTION 5.08.  Use
of Proceeds.  Use the proceeds of the
Loans and the Letters of Credit only as contemplated by Section 3.12.


SECTION 5.09.  Compliance
with Environmental Laws.  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 material authorizations and permits
required pursuant to Environmental Law for its operations and properties, in
each case in accordance with Environmental Laws, except, in each case with respect
to this Section 5.09, to the extent the failure to do so would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.


SECTION 5.10.  Further
Assurances; Additional Security. 
(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 Collateral Agent may
reasonably request, to satisfy the Collateral and Guarantee Requirement and to
cause the Collateral and Guarantee Requirement to be and remain satisfied, all
at the expense of the Loan Parties and provide to the Collateral Agent, from
time to time upon reasonable request, evidence reasonably satisfactory to the
Collateral 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 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 $3.0 million
is acquired by Holdings (prior to a Qualified IPO), the Borrowers or any other
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 (x) assets constituting
Collateral under a Security Document that become subject to the Lien of such
Security Document upon acquisition thereof and (y) assets that are not
required to become subject to Liens in favor of the Collateral Agent pursuant
to Section 5.10(g) or the Security Documents) will (i) notify the
Collateral Agent thereof, (ii) if such asset is comprised of Real
Property, deliver to Collateral Agent an updated Schedule 1.01B reflecting the
addition of such asset, and (iii) 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
Collateral Agent to grant and perfect such Liens, including actions described
in 


 


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paragraph (a) of this
Section, all at the expense of the Loan Parties, subject to paragraph (g)
below.


(c)           Grant and cause
each of the Subsidiary Loan Parties to grant to the Collateral Agent security
interests and mortgages in such Real Property of the Borrowers or any such
Subsidiary Loan Parties as are not covered by the original Mortgages, to the
extent acquired after the Closing Date and having a value at the time of
acquisition in excess of $3.0 million pursuant to documentation
substantially in the form of the Mortgages delivered to the Collateral Agent on
the Closing Date or in such other form as is reasonably satisfactory to the
Collateral Agent (each, an “Additional Mortgage”) and constituting valid
and enforceable Liens subject to no other Liens except Permitted Liens or Liens
arising by operation of law, at the time of perfection thereof, record or file,
and cause each such Subsidiary to record or file, the Additional Mortgage or
instruments related thereto in such manner and in such places as is required by
law to establish, perfect, preserve and protect the Liens in favor of the
Collateral Agent required to be granted pursuant to the Additional Mortgages
and pay, and cause each such Subsidiary to pay, in full, all Taxes, fees and
other charges payable in connection therewith, in each case subject to
paragraph (g) below.  Unless
otherwise waived by the Collateral Agent, with respect to each such Additional
Mortgage, the Borrowers shall deliver, or cause the applicable Subsidiary Loan
Party to deliver, to the Collateral Agent contemporaneously therewith a title
insurance policy, and a survey.


(d)           If any
additional direct or indirect Subsidiary of Holdings (prior to a Qualified IPO)
or the Borrowers is formed or acquired after the Closing Date (with any
Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a
Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if
such Subsidiary is a Subsidiary Loan Party, within five Business Days after the
date such Subsidiary is formed or acquired, notify the Collateral Agent and the
Lenders thereof and, within 20 Business Days after the date such
Subsidiary is formed or acquired or such longer period as the Collateral 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 owned by or on behalf of any Loan Party,
subject to paragraph (g) below.


(e)           If any
additional Foreign Subsidiary of Holdings is formed or acquired after the
Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted
Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of
a Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary,
within five Business Days after the date such Foreign Subsidiary is formed or
acquired, notify the Collateral Agent and the Lenders thereof and, within
20 Business Days after the date such Foreign Subsidiary is formed or
acquired or such longer period as the Collateral Agent shall 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,
subject to paragraph (g) below.


(f)            (i) Furnish
to the Collateral Agent prompt written notice of any change (A) in any
Loan Party’s corporate or organization name, (B) in any Loan Party’s
identity or organizational structure or (C) in any Loan Party’s
organizational identification number; provided, that the Borrowers shall
not effect or permit any such change unless all filings have been made, or will
have been made within any statutory period, under the Uniform Commercial 


 


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Code or otherwise that are
required in order for the Collateral 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 Collateral Agent if any material portion of the Collateral is damaged or
destroyed.


(g)           The Collateral
and Guarantee Requirement and the other provisions of this Section 5.10
need not be satisfied with respect to (i) any Real Property held by the
Borrowers or any of their Subsidiaries as a lessee under a lease or that has an
individual fair market value in an amount less than $3.0 million,
(ii) any vehicle, (iii) cash, deposit accounts and securities
accounts, (iv) any Equity Interests acquired after the Closing Date (other
than Equity Interests in the Borrowers or, in the case of any person which is a
Subsidiary, Equity Interests in such person acquired issued or acquired after
such person became a Subsidiary) in accordance with this Agreement if, and to
the extent that, and for so long as (A) doing so would violate applicable
law or a contractual obligation binding on such Equity Interests and
(B) with respect to contractual obligations, such obligation existed at
the time of the acquisition thereof and was not created or made binding on such
Equity Interests in contemplation of or in connection with the acquisition of
such Subsidiary, or (v) any assets acquired after the Closing Date, to the
extent that, and for so long as, taking such actions would violate an
enforceable 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(i) that is secured by a Permitted Lien); provided,
that, upon the reasonable request of the Collateral Agent, Holdings and the
Borrowers shall, and shall cause any applicable Subsidiary to, use commercially
reasonable efforts to have waived or eliminated any contractual obligation of
the types described in clauses (iv) and (v) above.


(h)           Upon the
reasonable request (in each case, taking into account the relative costs (to
the Loan Parties) and benefits (to the Secured Parties)) of the Collateral
Agent or the Required Lenders, take, or cause to be taken, such action as may
be reasonably requested (including, without limitation (i) subject to the
above-mentioned cost-benefit analysis, the execution and delivery of pledge or
security agreements governed by applicable local law and (ii) the filing
of financing statements) in order to perfect (or maintain the perfection of)
the security interests (or take any analogous actions under the applicable
provisions of local law in order to protect such security interests) in any
Equity Interests in any Foreign Subsidiary or other foreign person that is
organized under the laws of Germany or The Netherlands owned by Borrowers or a
Domestic Subsidiary, in each case to the extent such actions are permitted to
be taken under the laws of the applicable jurisdictions.  Furthermore, Holdings will, and will cause
the other Loan Parties that are Subsidiaries of Holdings to, deliver to the
Collateral Agent such opinions of counsel and other related documents as may be
reasonably requested by the Collateral Agent to assure itself with the Loan
Parties’ compliance with this Section 5.10(h).


(i)            In the event
that any requirement set forth in Section 4.02(d) (without giving effect
to the proviso thereof) has not been satisfied in full on or prior to the
Closing Date, use commercially reasonably efforts to cause such requirement to
be satisfied as promptly as practicable after the Closing Date and, in any
event, cause all such requirements to be satisfied not later than 120 days
following the Closing Date (or such later date as the Administrative Agent may
agree because of delays despite diligent efforts).


 


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SECTION 5.11.  Rating.  Exercise commercially reasonable efforts to
maintain ratings from each of Moody’s and S&P for the Term B Loans.


ARTICLE VI

Negative Covenants


The Borrowers covenant and agree with each Lender
that, so long as this Agreement shall remain in effect (other than in respect
of contingent indemnification and expense reimbursement obligations for which
no claim has been made) 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 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, unless the Required Lenders (or, in the case of
Section 6.11, the Majority Lenders in respect of the Revolving Facility)
shall otherwise consent in writing, the Borrowers will not, and will not permit
any of the Material Subsidiaries to:


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


(a)           Indebtedness existing on the Closing
Date and set forth on Schedule 6.01 and any Permitted Refinancing
Indebtedness incurred to Refinance such Indebtedness (other than intercompany
indebtedness Refinanced with Indebtedness owed to a person not affiliated with
the Borrowers or any Subsidiary);


(b)           Indebtedness created hereunder and
under the other Loan Documents and any Permitted Refinancing Indebtedness
incurred to Refinance such Indebtedness;


(c)           Indebtedness of the Borrowers or any
Subsidiary pursuant to Swap Agreements permitted by Section 6.12;


(d)           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 to the Borrowers or any Subsidiary, pursuant to
reimbursement or indemnification obligations to such person, in each case in
the ordinary course of business; provided, that upon the incurrence of
Indebtedness with respect to reimbursement obligations regarding workers’
compensation claims, such obligations are reimbursed not later than
30 days following such incurrence;


(e)           Indebtedness of the Borrowers to
Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrowers or
any other Subsidiary; provided, that (i) Indebtedness of any
Subsidiary that is not a Subsidiary Loan Party owing to the Loan Parties shall
be subject to Section 6.04(b) and (ii) Indebtedness of the Borrowers
to Holdings or any Subsidiary and Indebtedness of any other Loan Party to
Holdings or any 


 


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Subsidiary that is not a
Subsidiary Loan Party shall be subordinated to the Obligations on terms
reasonably satisfactory to the Administrative Agent;


(f)            Indebtedness in respect of
performance bonds, bid bonds, appeal bonds, surety bonds 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;


(g)           Indebtedness arising from the
honoring by a bank or other financial institution of a check, draft or similar
instrument drawn against insufficient funds in the ordinary course of business
or other cash management services in the ordinary course of business; provided,
that (x) such Indebtedness (other than credit or purchase cards) is
extinguished within ten Business Days of notification to the obligor by such
bank or other financial institution of its incurrence and (y) such
Indebtedness in respect of credit or purchase cards is extinguished within
60 days from its incurrence;


(h)           (i) Indebtedness of a Subsidiary
acquired after the Closing Date or a person merged into or consolidated with
the Borrowers or any Subsidiary after the Closing Date and Indebtedness assumed
in connection with the acquisition of assets, which Indebtedness in each case
exists at the time of such acquisition, merger or consolidation and is not
created in contemplation of such event and where such acquisition, merger or
consolidation is permitted by this Agreement and (ii) any Permitted
Refinancing Indebtedness incurred to Refinance such Indebtedness; provided
that the aggregate amount of such Indebtedness (together with the aggregate
amount of Indebtedness outstanding pursuant to this paragraph (h) and
paragraph (i) of this Section 6.01 and the Remaining Present Value of
outstanding leases permitted under Section 6.03) would not exceed the
greater of $75.0 million and 4% of Consolidated Total Assets as of the end
of the fiscal quarter immediately prior to the date of such acquisition, merger
or consolidation, such assumption or such incurrence, as applicable for which
financial statements have been delivered pursuant to Section 5.04; provided,
further (A) no Default or Event of Default shall have occurred and
be continuing or would result therefrom, and (B) immediately after giving
effect to such acquisition, merger or consolidation, the assumption and
incurrence of any Indebtedness and any related transactions, the Borrowers
shall be in Pro Forma Compliance;


(i)            Capital Lease Obligations, mortgage
financings and purchase money Indebtedness incurred by the Borrowers or any
Subsidiary prior to or within 270 days after the acquisition, lease or
improvement of the respective asset permitted under this Agreement in order to
finance such acquisition 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 the
aggregate amount of Indebtedness outstanding pursuant to this
paragraph (i) and paragraph (h) of this Section 6.01 and the
Remaining Present Value of outstanding leases permitted under
Section 6.03, would not exceed the greater of $75.0 million and 4% of
Consolidated Total Assets as of the end of the fiscal quarter immediately prior
to the date of such incurrence for which financial statements have been
delivered pursuant to Section 5.04;


 


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


(k)           other Indebtedness of the Borrowers
or any Subsidiary, in an aggregate principal amount that at the time of, and
after giving effect to, the incurrence thereof, would not exceed the greater of
$100.0 million and 5% of Consolidated Total Assets as of the end of the
fiscal quarter immediately prior to the date of such incurrence for which
financial statements have been delivered pursuant to Section 5.04;


(l)            Indebtedness of the Borrowers
pursuant to (i) the Senior Unsecured Notes in an aggregate principal
amount that is not in excess of $485.0 million, (ii) the Senior
Subordinated Notes in an aggregate principal amount that is not in excess of
$300.0 million, and (ii) any Permitted Refinancing Indebtedness
incurred to Refinance any such Indebtedness;


(m)          Guarantees (i) by the Subsidiary
Loan Parties of the Indebtedness of the Borrowers described in
paragraph (1) of this Section 6.01, so long as the Guarantee of the
Senior Subordinated Notes or any Permitted Refinancing Indebtedness in respect
thereof is subordinated substantially on terms as set forth in the Senior
Subordinated Notes Indenture with respect to the Senior Subordinated Notes,
(ii) by the Borrowers or any Subsidiary Loan Party of any Indebtedness of
the Borrowers or any Subsidiary Loan Party permitted to be incurred under this
Agreement, (iii) by the Borrowers or any Subsidiary Loan Party of
Indebtedness otherwise permitted hereunder of Holdings or any Subsidiary that
is not a Subsidiary Loan Party to the extent such Guarantees are permitted by
Section 6.04 (other than Section 6.04(v)), (iv) by any Foreign
Subsidiary of Indebtedness of another Foreign Subsidiary, and (v) by the
Borrowers of Indebtedness of Foreign Subsidiaries incurred for working capital
purposes in the ordinary course of business on ordinary business terms so long
as such Indebtedness is permitted to be incurred under Section 6.01(s) to
the extent such Guarantees are permitted by 6.04 (other than
Section 6.04(v)); provided, that Guarantees by the Borrowers or any
Subsidiary Loan Party under this Section 6.01(m) of any other Indebtedness
of a person that is subordinated to other Indebtedness of such person shall be
expressly subordinated to the Obligations to the same extent as the Guarantee
of the Senior Subordinated Notes is under the Senior Subordinated Notes
Indenture;


(n)           Indebtedness arising from agreements
of the Borrowers or any Subsidiary providing for indemnification, adjustment of
purchase or acquisition price or similar obligations, in each case, incurred or
assumed in connection with the Transactions and any Permitted Business
Acquisition or the disposition of any business, assets or a Subsidiary not
prohibited by this Agreement, other than Guarantees of Indebtedness incurred by
any person acquiring all or any portion of such business, assets or a
Subsidiary for the purpose of financing such acquisition;


(o)           Indebtedness in respect of letters of
credit, bank guarantees, warehouse receipts or similar instruments issued to
support performance obligations (other than obligations in respect of other
Indebtedness) in the ordinary course of business;


 


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


(q)           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;


(r)            Indebtedness consisting of Permitted
Ratio Debt and Permitted Refinancing Indebtedness in respect thereof so long as
(i) no Default or Event of Default shall have occurred and be continuing
or would result therefrom, (ii) immediately after giving effect to the
issuance, incurrence or assumption of such Indebtedness, the Total Senior
Secured Bank Leverage Ratio on a Pro Forma Basis after giving effect to such
Indebtedness shall not be greater than 4.50 to 1.00 and (iii) the proceeds
of such Permitted Ratio Debt are used to fund Permitted Business Acquisitions,
to repay Term Loans or to repay any Indebtedness of any Borrower or any
Subsidiary Loan Party;


(s)           Indebtedness of Subsidiaries that are
not Subsidiary Loan Parties in an aggregate amount not to exceed
$75.0 million outstanding at any time;


(t)            unsecured Indebtedness in respect of
obligations of the Borrowers or any Subsidiary to pay the deferred purchase
price of goods or services or progress payments in connection with such goods
and services; provided, that such obligations are incurred in connection
with open accounts extended by suppliers on customary trade terms (which
require that all such payments be made within 60 days after the incurrence
of the related obligations) in the ordinary course of business and not in
connection with the borrowing of money or any Swap Agreements;


(u)           Indebtedness representing deferred
compensation to employees of the Borrowers or any Subsidiary incurred in the
ordinary course of business;


(v)           Indebtedness in connection with
Permitted Receivables Financings; provided that the proceeds thereof are
applied in accordance with Section 2.11(b);


(w)          Indebtedness of the Borrowers and the
Subsidiaries incurred under lines of credit or overdraft facilities (including,
but not limited to, intraday, ACH and purchasing card/T&E services)
extended by one or more financial institutions reasonably acceptable to the
Administrative Agent or one or more of the Lenders and (in each case)
established for the Borrowers’ and the Subsidiaries’ ordinary course of
operations (such Indebtedness, the “Overdraft Line”), which Indebtedness
may be secured as, but only to the extent, provided in
Section 6.02(b) and in the Security Documents (it being understood,
however, that for a period of 30 consecutive days during each fiscal year
of the Borrowers the outstanding principal amount of Indebtedness under the
Overdraft Line shall not exceed $10.0 million);


(x)            intercompany Indebtedness in
connection with the Restructuring Transactions;


 


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


SECTION 6.02.  Liens.  Create, incur, assume or permit to exist any
Lien on any property or assets (including stock or other securities of any
person, including the Borrowers and any Subsidiary) at the time owned by it or
on any income or revenues or rights in respect of any thereof, except the
following (collectively, “Permitted Liens”):


(a)           Liens on property or assets of the
Borrowers and the Subsidiaries existing on the Closing Date and set forth on
Schedule 6.02(a) or, to the extent not listed in such Schedule, where such
property or assets have a fair market value that does not exceed
$10.0 million in the aggregate, and any modifications, replacements,
renewals or extensions thereof; provided, that such Liens shall secure only
those obligations that they secure on the Closing Date (and any Permitted
Refinancing Indebtedness in respect of such obligations permitted by
Section 6.01(a)) and shall not subsequently apply to any other property or
assets of the Borrowers or any Subsidiary other than (A) after-acquired
property that is affixed or incorporated into the property covered by such
Lien, and (B) 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; provided, however, in no event shall the
holders of the Indebtedness under the Overdraft Line have the right to receive
proceeds in respect of a claim in excess of $10.0 million in the aggregate
(plus (i) any accrued and unpaid interest in respect of Indebtedness
incurred by the Borrowers and the Subsidiaries under the Overdraft Line and
(ii) any accrued and unpaid fees and expenses owing by the Borrowers and
the Subsidiaries under the Overdraft Line) from the enforcement of any remedies
available to the Secured Parties under all of the Loan Documents;


(c)           any Lien on any property or asset of
the Borrowers or any Subsidiary securing Indebtedness or Permitted Refinancing
Indebtedness permitted by Section 6.01(h); provided, that such Lien
(i) does not apply to any other property or assets of the Borrowers or any
of the Subsidiaries not securing such Indebtedness at the date of the
acquisition of such property or asset (other than after acquired property
subjected to a Lien securing Indebtedness and other obligations incurred prior
to such date and which Indebtedness and other obligations are permitted
hereunder that require a pledge of after acquired property, it being understood
that such requirement shall not be permitted to apply to any property to which
such requirement would not have applied but for such acquisition),
(ii) such Lien is not created in contemplation of or in connection with
such acquisition and (iii) 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 not yet delinquent or that are being contested
in compliance with Section 5.03;


 


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(e)           Liens imposed by law, such as
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 that are
being contested in good faith by appropriate proceedings and in respect of
which, if applicable, the Borrowers or any Subsidiary shall have set aside on
its books reserves in accordance with GAAP;


(f)            (i) pledges and deposits and
other Liens made 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 liability to insurance carriers under insurance or
self-insurance arrangements in respect of such obligations and
(ii) pledges and deposits and other Liens securing liability for
reimbursement or indemnification obligations of (including obligations in
respect of letters of credit or bank guarantees for the benefit of) insurance
carriers providing property, casualty or liability insurance to the Borrowers
or any Subsidiary;


(g)           deposits and other Liens to secure
the performance of bids, trade contracts (other than for Indebtedness), leases
(other than Capital Lease Obligations), statutory obligations, surety and
appeal bonds, performance and return of money bonds, bids, leases, government
contracts, trade contracts, agreements with utilities, and other obligations of
a like nature (including letters of credit in lieu of any such bonds or to
support the issuance thereof) incurred in the ordinary course of business,
including those incurred to secure health, safety and environmental obligations
in the ordinary course of business;


(h)           zoning restrictions, survey
exceptions, easements, trackage rights, leases (other than Capital Lease
Obligations), licenses, special assessments, rights-of-way, restrictions on use
of Real Property, servicing agreements, development agreements, site plan
agreements and other similar encumbrances incurred in the ordinary course of
business and title defects or irregularities that are of a minor nature and
that, in the aggregate, do not interfere in any material respect with the
ordinary conduct of the business of the Borrowers or any Subsidiary;


(i)            Liens securing Indebtedness
permitted by Section 6.01(i);


(j)            Liens arising out of capitalized
lease 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 thereof and related property;


(k)           Liens securing judgments that do not
constitute an Event of Default under Section 7.01(j), provided,
that such Liens, to the extent that they secure aggregate amounts of more than
$50.0 million, shall be discharged within 60 days of the creation
thereof;


(l)            Liens disclosed by the title
insurance policies delivered on (with respect to all Mortgages delivered on the
Closing Date) or subsequent to the Closing Date and 


 


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pursuant to
Section 5.10 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 or
sublessor under any leases or subleases entered into by the Borrowers or any
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 Borrowers or any
Subsidiary to permit satisfaction of overdraft or similar obligations incurred
in the ordinary course of business of the Borrowers or any Subsidiary or
(iii) relating to purchase orders and other agreements entered into with
customers of the Borrowers or any Subsidiary 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
of trade-related letters of credit and bankers’ acceptances permitted under
Section 6.01(f) or (k) and covering the goods (or the documents of title
in respect of such goods) financed by such letters of credit and the proceeds
and products thereof;


(q)           leases or subleases, licenses or
sublicenses (including with respect to intellectual property and software)
granted to others in the ordinary course of business not interfering in any
material respect with the business of the Borrowers and their Subsidiaries,
taken as a whole;


(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 solely on any cash earnest
money deposits made by the Borrowers or any of the Subsidiaries in connection
with any letter of intent or purchase agreement in respect of any Investment
permitted hereunder;


(t)            Liens with respect to property or
assets of any Foreign Subsidiary securing Indebtedness of a Foreign Subsidiary
permitted under Section 6.01;


(u)           other Liens with respect to property
or assets of the Borrowers or any Subsidiary; provided that
(i) such property and assets constituting Collateral shall have an
aggregate fair market value (valued at the time of creation of the Liens) of
not more than $50.0 million at any time, (ii) such property and
assets not constituting Collateral shall have an aggregate fair market value
(valued at the time of creation of the Liens) of not more than
$25.0 million at any time and (iii) if any such Lien shall cover any
Collateral, the holder of such Lien shall execute and deliver to the
Administrative Agent an intercreditor agreement in form and substance
satisfactory to the Administrative Agent;


 


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(v)           the prior rights of consignees and
their lenders under consignment arrangements entered into in the ordinary
course of business;


(w)          agreements to subordinate any interest
of the Borrowers or any Subsidiary in any accounts receivable or other proceeds
arising from inventory consigned by the Borrowers or any of their Subsidiaries
pursuant to an agreement entered into in the ordinary course of business;


(x)            Liens arising from precautionary
Uniform Commercial Code financing statements regarding operating leases;


(y)           Liens on Equity Interests in joint
ventures securing obligations of such joint venture;


(z)            Liens on securities that are the
subject of repurchase agreements constituting Permitted Investments under
clause (c) of the definition thereof;


(aa)         Liens in respect of Permitted
Receivables Financings that extend only to the receivables subject thereto;


(bb)         Liens securing insurance premiums financing
arrangements, provided, that such Liens are limited to the applicable
unearned insurance premiums;


(cc)         (i) other Liens on assets that are
not Collateral and (ii) other Liens of the type referred to in
Section 6.02(i) (without regard to the amount limitation set forth therein
by reference to Section 6.01(i)) that secure Indebtedness of the type
referred to in Section 6.01(i); provided that, after giving effect
to any such Lien and the incurrence of any Indebtedness incurred at the time
such Lien is created, incurred or permitted to exist on a Pro Forma Basis, the
Total Senior Secured Bank Leverage Ratio on the last day of the Borrowers’ then
most recently completed fiscal quarter for which financial statements are
available shall be less than or equal to 2.50 to 1.00 and at the time of the
incurrence of such Lien and after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing or would result therefrom;


(dd)         Liens in favor of the Borrowers or any
Subsidiary Loan Party; and


(ee)         Liens on not more than
$10.0 million of deposits securing Swap Agreements permitted to be
incurred under Section 6.12.


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 thereafter rent or lease
such property or other property that it intends to use for substantially the
same purpose or purposes as the property being sold or transferred (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 Borrowers or any Domestic Subsidiary that is acquired after the Closing
Date so long as such Sale and Lease-Back Transaction is consummated within
180 days of the acquisition of such property or (ii) owned by any
Foreign Subsidiary regardless 


 


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of when such property was
acquired, and (b) with respect to any property owned by the Borrowers or
any Domestic Subsidiary, (i) 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 Sections 6.01(h) and (i) and the Remaining
Present Value of outstanding leases previously entered into under this
Section 6.03(b), would not exceed the greater of $75.0 million and 4%
of Consolidated Total Assets as of the end of the fiscal quarter immediately
prior to the date the lease was entered into for which financial statements
have been delivered pursuant to Section 5.04 and (ii) if such Sale
and Lease-Back Transaction is of property owned by the Borrowers or any
Domestic Subsidiary as of the Closing Date, the Net Proceeds therefrom are used
to prepay the Term Loans to the extent required by Section 2.11(b).


SECTION 6.04.  Investments,
Loans and Advances.  Purchase, hold
or acquire (including pursuant to any merger with a person that is not a Wholly
Owned Subsidiary immediately prior to such merger) 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 (each, an “Investment”),
any other person, except:


(a)           the Transactions;


(b)           (i) Investments by the Borrowers
or any Subsidiary in the Equity Interests of the Borrowers or any Subsidiary;
(ii) intercompany loans from the Borrowers or any Subsidiary to the
Borrowers or any Subsidiary; and (iii) Guarantees by the Borrowers or any
Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of
the Borrowers or any Subsidiary; provided, that the sum of
(A) Investments (valued at the time of the making thereof and without
giving effect to any write-downs or write-offs thereof) made after the Closing
Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are
not Subsidiary Loan Parties, plus (B) net intercompany loans made
after the Closing Date to Subsidiaries that are not Subsidiary Loan Parties
pursuant to clause (ii), plus (C) Guarantees of Indebtedness
after the Closing Date of Subsidiaries that are not Subsidiary Loan Parties
pursuant to clause (iii), shall not exceed an aggregate net amount equal
to (x) the greater of (1) $75.0 million and (2) 4.5% of
Consolidated Total Assets (plus any return of capital actually received
by the respective investors in respect of Investments theretofore made by them
pursuant to this paragraph (b)); plus (y) the portion, if any,
of the Cumulative Credit on the date of such election that the Borrowers elect
to apply to this Section 6.04(b)(y), such election to be specified in a
written notice of a Responsible Officer of the Borrowers calculating in
reasonable detail the amount of Cumulative Credit immediately prior to such
election and the amount thereof elected to be so applied; provided, further,
that intercompany current liabilities incurred in the ordinary course of
business in connection with the cash management operations of the Borrowers and
the 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;


 


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


(e)           loans and advances to officers,
directors, employees or consultants of the Borrowers or any Subsidiary
(i) in the ordinary course of business not to exceed $15.0 million in
the aggregate at any time outstanding (calculated without regard to write downs
or write offs thereof), (ii) in respect of payroll payments and expenses
in the ordinary course of business and (iii) in connection with such
person’s purchase of Equity Interests of Holdings (or any direct or indirect
parent of Holdings) solely to the extent that the amount of such loans and
advances shall be contributed to the Borrowers in cash as common equity;


(f)            accounts receivable, security
deposits and prepayments arising and trade credit granted in the ordinary
course of business and any assets or securities received in satisfaction or
partial satisfaction thereof from financially troubled account debtors to the
extent reasonably necessary in order to prevent or limit loss and any
prepayments and other credits to suppliers made in the ordinary course of
business;


(g)           Swap Agreements permitted pursuant to
Section 6.12;


(h)           Investments existing on, or
contractually committed as of, the Closing Date and set forth on Schedule 6.04
and any extensions, renewals or reinvestments thereof, so long as the aggregate
amount of all Investments pursuant to this clause (h) is not increased at
any time above the amount of such Investment existing on the Closing Date;


(i)            Investments resulting from pledges
and deposits under Sections 6.02(f), (g), (r), (s), (u) and (ee);


(j)            other Investments by the Borrowers
or any 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) the greater of $100.0 million and 5% of
Consolidated Total Assets as of the end of the fiscal quarter immediately prior
to the date of such Investment for which financial statements have been
delivered pursuant to Section 5.04 plus (ii) the portion, if
any, of the Cumulative Credit on the date of such election that the Borrowers
elect to apply to this Section 6.04(j)(ii), such election to be specified
in a written notice of a Responsible Officer of the Borrowers calculating in
reasonable detail the amount of Cumulative Credit immediately prior to such
election and the amount thereof elected to be so applied;


(k)           Investments constituting Permitted
Business Acquisitions;


(l)            intercompany loans between Foreign
Subsidiaries and Guarantees by Foreign Subsidiaries permitted by
Section 6.01(m);


(m)          Investments received in connection
with the bankruptcy or reorganization of, or settlement of delinquent accounts
and disputes with or judgments against, customers and suppliers, in each case
in the ordinary course of business or Investments 


 


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acquired by the Borrowers as
a result of a foreclosure by the Borrowers or any of the Subsidiaries with
respect to any secured Investments or other transfer of title with respect to any
secured Investment in default;


(n)           Investments of a Subsidiary acquired
after the Closing Date or of a corporation merged into any Borrower or merged
into or consolidated with a Subsidiary after the Closing Date, in each case,
(i) to the extent permitted under this Section 6.04, (ii) in the
case of acquisition, any merger or consolidation, in accordance with
Section 6.05 and (iii) 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;


(o)           acquisitions by the Borrowers of
obligations of one or more officers or other employees of Holdings, any Parent
Entity, the Borrowers or their Subsidiaries in connection with such officer’s
or employee’s acquisition of Equity Interests of Holdings or any Parent Entity,
so long as no cash is actually advanced by the Borrowers or any of the
Subsidiaries to such officers or employees in connection with the acquisition of
any such obligations;


(p)           Guarantees by the Borrowers or any
Subsidiary of operating leases (other than Capital Lease Obligations) or of
other obligations that do not constitute Indebtedness, in each case entered
into by the Borrowers or any Subsidiary in the ordinary course of business;


(q)           Investments to the extent that
payment for such Investments is made with Equity Interests of Holdings (or any
Parent Entity);


(r)            Investments in the Equity Interests
of one or more newly formed persons that are received in consideration of the
contribution by Holdings, the Borrowers or the applicable Subsidiary of assets
(including Equity Interests and cash) to such person or persons; provided,
that (i) the fair market value of such assets, determined on an arms’-length
basis, so contributed pursuant to this paragraph (r) shall not in the
aggregate exceed $10.0 million and (ii) in respect of each such
contribution, a Responsible Officer of the Borrowers shall certify, in a form
to be agreed upon by the Borrowers and the Administrative Agent (x) after
giving effect to such contribution, no Default or Event of Default shall have
occurred and be continuing or would result therefrom, (y) the fair market
value of the assets so contributed and (z) that the requirements of clause (i)
of this proviso remain satisfied;


(s)           Investments consisting of the
redemption, purchase, repurchase or retirement of any Equity Interests
permitted under Section 6.06;


(t)            Investments in the ordinary course
of business consisting of Uniform Commercial Code Article 3 endorsements
for collection or deposit and Uniform Commercial Code Article 4 customary
trade arrangements with customers consistent with past practices;


 


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(u)           Investments in Foreign Subsidiaries
not to exceed $10.0 million in the aggregate, as valued at the fair market
value of such Investment at the time such Investment is made;


(v)           Guarantees permitted under
Section 6.01 (except to the extent such Guarantee is expressly subject to
this Section 6.04);


(w)          advances in the form of a prepayment
of expenses, so long as such expenses are being paid in accordance with
customary trade terms of the Borrowers or such Subsidiary;


(x)            Investments by Borrowers and their
Subsidiaries, including loans to any direct or indirect parent of the
Borrowers, if the Borrowers or any other Subsidiary would otherwise be
permitted to make a dividend or distribution in such amount (provided that the
amount of any such Investment shall also be deemed to be a distribution under
the appropriate clause of Section 6.06 for all purposes of this
Agreement);


(y)           Investments arising as a result of
Permitted Receivables Financings;


(z)            Investments consisting of the
licensing or contribution of intellectual property pursuant to joint marketing
arrangements with other persons;


(aa)         Investments consisting of purchases and
acquisitions of inventory, supplies, materials and equipment or purchases of
contract rights or licenses or leases of intellectual property in each case in
the ordinary course of business;


(bb)         Investments received substantially
contemporaneously in exchange for Equity Interests of the Borrowers; provided
that such Investments are not included in any determination of the Cumulative
Credit;


(cc)         Investments in joint ventures not in
excess of $15.0 million in the aggregate;


(dd)         the Dalong Acquisition; and


(ee)         intercompany Investments in connection
with the Restructuring Transactions.


The amount of Investments that may be made at any time
pursuant to Section 6.04(b) or 6.04(j) (such Sections, the “Related
Sections”) may, at the election of the Borrowers, be increased by the
amount of Investments that could be made at such time under the other Related
Section; provided that the amount of each such increase in respect of
one Related Section shall be treated as having been used under the other
Related Section.


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 transactions) all or any part of its assets (whether now owned or
hereafter acquired), or issue, 


 


110

















 


sell, transfer or
otherwise dispose of any Equity Interests of the Borrowers or any Subsidiary,
or purchase, lease or otherwise acquire (in one transaction or a series of
transactions) all or any substantial part of the assets of any other person,
except that this Section shall not prohibit:


(a)           (i) the purchase and sale of
inventory in the ordinary course of business by the Borrowers or any
Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease)
of any other asset in the ordinary course of business by the Borrowers or any
Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or
other property in the ordinary course of business by the Borrowers or any
Subsidiary or (iv) the sale 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 or would result therefrom, (i) the merger of any
Subsidiary into any Borrower in a transaction in which such Borrower is the
survivor, (ii) the merger or consolidation of any Subsidiary into or with
any Subsidiary Loan Party in a transaction in which the surviving or resulting
entity is a Subsidiary Loan Party and, in the case of each of clauses (i)
and (ii), no person other than the Borrowers or the Subsidiary Loan Parties
receives any consideration, (iii) the merger or consolidation of any
Subsidiary that is not a Subsidiary Loan Party into or with any other
Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or
dissolution or change in form of entity of any Subsidiary (other than the
Borrowers) if the Borrowers determine in good faith that such liquidation,
dissolution or change in form is in the best interests of the Borrowers and is not
materially disadvantageous to the Lenders or (v) any Subsidiary may merge
with any other person in order to effect an Investment permitted pursuant to
Section 6.04 so long as the continuing or surviving person shall be a
Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan
Party and which together with each of their Subsidiaries shall have complied
with the requirements of Section 5.10;


(c)           sales, transfers, leases or other
dispositions to the Borrowers 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 in reliance on this paragraph (c) shall be made in compliance with
Section 6.07 and shall be included in 6.05(g);


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


(e)           Investments permitted by
Section 6.04, Permitted Liens, Dividends permitted by Section 6.06
and purchases and leases permitted by Section 6.10;


(f)            the sale of defaulted 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 not otherwise permitted by this Section 6.05 (or
required to be included in this clause (g) pursuant to
Section 6.05(c)); provided, that (i) the aggregate gross
proceeds (including non-cash proceeds) of any or all assets sold, transferred,
leased or otherwise disposed of in reliance 


 


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upon this paragraph (g)
shall not exceed, in any fiscal year of the Borrowers, the greater of
(x) $100.0 million and (y) 5% of Consolidated Total Assets as of
the end of the fiscal quarter immediately prior to the date of such incurrence
for which financial statements have been delivered pursuant to
Section 5.04, (ii) no Default or Event of Default exists or would
result therefrom, (iii) with respect to any such sale, transfer, lease or
other disposition with aggregate gross proceeds (including non-cash proceeds)
in excess of $10.0 million, immediately after giving effect thereto, the
Borrowers shall be in Pro Forma Compliance, and (iv) the Net Proceeds
thereof are applied in accordance with Section 2.11(b);


(h)           Permitted Business Acquisitions
(including any merger or consolidation in order to effect a Permitted Business
Acquisition); provided, that following any such merger or consolidation
(i) involving any Borrower, such Borrower is the surviving corporation,
(ii) involving a Domestic Subsidiary, the surviving or resulting entity
shall be a Subsidiary Loan Party that is a Wholly Owned Subsidiary and
(iii) involving a Foreign Subsidiary, the surviving or resulting entity
shall be a Wholly Owned Subsidiary;


(i)            leases, licenses (on a non-exclusive
basis with respect to intellectual property), or subleases or sublicenses (on a
non-exclusive basis with respect to intellectual property) of any real or
personal property in the ordinary course of business;


(j)            sales, leases or other dispositions
of inventory of the Borrowers and their Subsidiaries determined by the
management of the Borrowers to be no longer useful or necessary in the
operation of the business of the Borrowers or any of the Subsidiaries; provided
that the Net Proceeds thereof are applied in accordance with
Section 2.11(b);


(k)           acquisitions and purchases made with
the proceeds of any Asset Sale pursuant to the first proviso of
paragraph (a) of the definition of “Net Proceeds”;


(l)            the purchase and sale or other
transfer (including by capital contribution) of Receivables Assets pursuant to
Permitted Receivables Financings; provided that the Net Proceeds thereof are
applied in accordance with Section 2.11(b);


(m)          any exchange of assets for services
and/or other assets of comparable or greater value; provided, that
(i) at least 90% of the consideration received by the transferor consists
of assets that will be used in a business or business activity permitted
hereunder, (ii) in the event of a swap with a fair market value in excess
of $5.0 million, the Administrative Agent shall have received a
certificate from a Responsible Officer of the Borrowers with respect to such
fair market value and (iii) in the event of a swap with a fair market
value in excess of $15.0 million, such exchange shall have been approved
by at least a majority of the board of directors of Holdings or the Borrowers; provided,
further, that (A) the aggregate gross consideration (including
exchange assets, other non-cash consideration and cash proceeds) of any or all
assets exchanged in reliance upon this paragraph (m) shall not exceed, in
any fiscal year of the Borrowers, the greater of $100.0 million and 5% of
Consolidated Total Assets as of the end of the fiscal quarter immediately prior
to the date of such incurrence for which financial statements have been
delivered pursuant to Section 5.04, (B) no Default or Event of
Default exists or would 


 


112

















 


result therefrom,
(C) with respect to any such exchange with aggregate gross consideration
in excess of $10.0 million, immediately after giving effect thereto, the
Borrowers shall be in Pro Forma Compliance, and (D) the Net Proceeds, if
any, thereof are applied in accordance with Section 2.11(b);


(n)           sale of assets comprising all or a portion
of the Industrial Chain Business or Equity Interests in persons the only assets
of which at the time of such sale comprise all or a portion of the Industrial
Chain Business;


(o)           the Honeywell Receivables
Transaction; and


(p)           the Restructuring Transactions.


Notwithstanding anything to the contrary contained in
Section 6.05 above, (i) no sale, transfer or other disposition of
assets shall be permitted by this Section 6.05 (other than sales,
transfers, leases or other dispositions to Loan Parties pursuant to
paragraph (c) hereof) unless such disposition is for fair market value,
(ii) no sale, transfer or other disposition of assets shall be permitted
by paragraph (a) or (d) 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 shall be permitted by paragraph (g) of this
Section 6.05 unless such disposition is for at least 75% cash
consideration; provided that the provisions of clause (ii) shall
not apply to any individual transaction or series of related transactions
involving assets with a fair market value of less than $5.0 million or to
other transactions involving assets with a fair market value of not more than
the greater of $35.0 million and 3% of Consolidated Total Assets in the
aggregate for all such transactions during the term of this Agreement; provided,
further, that for purposes of clause (iii), (a) the amount of
any secured Indebtedness of the Borrowers or any Subsidiary of the Borrowers or
other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the
Borrowers’ or such Subsidiary’s most recent balance sheet or in the notes
thereto) that is assumed by the transferee of any such assets shall be deemed
to be cash and (b) any notes or other obligations or other securities or
assets received by the Borrowers or such Subsidiary from the transferee that
are converted by the Borrowers or such Subsidiary into cash within
180 days after receipt thereof (to the extent of the cash received) shall be
deemed to be cash.


SECTION 6.06.  Dividends
and Distributions.  Declare or pay
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 (other than Disqualified Stock) of the person paying such
dividends or distributions) or directly or indirectly redeem, purchase, retire
or otherwise acquire for value (or permit any Subsidiary to purchase or
acquire) any of its Equity Interests or set aside any amount for any such
purpose (other than through the issuance of additional Equity Interests (other
than Disqualified Stock) of the person redeeming, purchasing, retiring or
acquiring such shares); provided, however, that:


(a)           any Subsidiary of the Borrowers may
declare and pay dividends to, repurchase its Equity Interests from or make
other distributions to the Borrowers or to any Wholly Owned Subsidiary of the
Borrowers (or, in the case of non-Wholly Owned 


 


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Subsidiaries, to the
Borrowers or any Subsidiary that is a direct or indirect parent of such
Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro
rata basis (or more favorable basis from the perspective of the
Borrowers or such Subsidiary) based on their relative ownership interests so
long as any repurchase of its Equity Interests from a person that is not a
Borrower or a Subsidiary is permitted under Section 6.04);


(b)           the Borrowers may declare and pay
dividends or make other distributions to Holdings in respect of
(i) overhead, legal, accounting and other professional fees and expenses
of Holdings or any Parent Entity, (ii) fees and expenses related to any
public offering or private placement of Equity Interests of Holdings or any
direct or indirect parent of Holdings whether or not consummated,
(iii) franchise taxes and other fees, taxes and expenses in connection
with the maintenance of its existence and its (or any Parent Entity’s indirect)
ownership of the Borrowers, (iv) payments permitted by
Section 6.07(b), (v) the tax liability to each relevant jurisdiction
in respect of consolidated, combined, unitary or affiliated tax returns for the
relevant jurisdiction of Holdings (or any Parent Entity) attributable to
Holdings, the Borrowers or their Subsidiaries and (vi) customary salary,
bonus and other benefits payable to, and indemnities provided on behalf of,
officers and employees of Holdings or any Parent Entity, in each case in order
to permit Holdings or any Parent Entity to make such payments; provided,
that in the case of clauses (i), (ii) and (iii), the amount of such
dividends and distributions shall not exceed the portion of any amounts
referred to in such clauses (i), (ii) and (iii) that are allocable to the
Borrowers and their Subsidiaries (which shall be 100% for so long as Holdings
or such Parent Entity, as the case may be, owns no assets other than the Equity
Interests in the Borrowers);


(c)           the Borrowers may declare and pay
dividends or make other distributions to Holdings the proceeds of which are
used to purchase or redeem the Equity Interests of Holdings or any Parent Entity
(including related stock appreciation rights or similar securities) held by
then present or former directors, consultants, officers or employees of
Holdings, the Borrowers or any of the Subsidiaries or by any Plan upon such
person’s death, disability, retirement or termination of employment or under
the terms of any such Plan or any other agreement under which such shares of
stock or related rights were issued; provided, that the aggregate amount
of such purchases or redemptions under this paragraph (c) shall not exceed
in any fiscal year $15.0 million (plus the amount of net proceeds
contributed to the Borrowers that were (x) received by Holdings and any
Parent Entity during such calendar year from sales of Equity Interests of
Holdings or any Parent Entity to directors, consultants, officers or employees
of Holdings, any Parent Entity, the Borrowers or any Subsidiary in connection
with permitted employee compensation and incentive arrangements and (y) of
any key-man life insurance policies received during such calendar year), which,
if not used in any year, may be carried forward to any subsequent calendar
year;


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


 


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(e)           the Borrowers may pay dividends to
Holdings in an aggregate amount equal to the portion, if any, of the Cumulative
Credit on such date that the Borrowers elect to apply to this
Section 6.06(e), such election to be specified in a written notice of a
Responsible Officer of the Borrowers calculating in reasonable detail the
amount of Cumulative Credit immediately prior to such election and the amount thereof
elected to be so applied; provided, that no Default or Event of Default
has occurred and is continuing or would result therefrom and, after giving
effect thereto, that the Borrowers and their Subsidiaries shall be in Pro Forma
Compliance with the Total Senior Secured Bank Leverage Ratio covenant set forth
in Section 6.11;


(f)            the Borrowers may pay dividends on
the Closing Date to consummate the Transactions;


(g)           the Borrowers may pay dividends or
distributions to allow Holdings or any Parent Entity to make payments in cash,
in lieu of the issuance of fractional shares, upon the exercise of warrants or
upon the conversion or exchange of Equity Interests of any such person; and


(h)           after a Qualified IPO, the Borrowers
may pay dividends and make distributions to, or repurchase or redeem shares
from, their equity holders in an amount equal to 6.0% per annum of the net
proceeds received by the Borrowers from any public offering of Equity Interests
of Target or any direct or indirect parent of the Target.


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 or any known direct or indirect holder of 10% or more of any class
of Equity Interest of Holdings (prior to a Qualified IPO) or the Borrowers,
unless such transaction is (i) otherwise permitted (or required) under
this Agreement or (ii) upon terms no less favorable to the Borrowers or
such Subsidiary, as applicable, than would be obtained in a comparable arm’s-length
transaction with a person that is not an Affiliate.


(b)           The foregoing
paragraph (a) shall not prohibit, to the extent otherwise permitted under
this Agreement,


(i)            any issuance of securities, or other
payments, awards or grants in cash, securities or otherwise pursuant to, or the
funding of, employment arrangements, equity purchase agreements, stock options
and stock ownership plans approved by the Board of Directors of Holdings (prior
to a Qualified IPO) or of the Borrowers,


(ii)           loans or advances to employees or
consultants of Holdings (or any Parent Entity), the Borrowers or any of the
Subsidiaries in accordance with Section 6.04(e),


(iii)          transactions among the Borrowers or
any Subsidiary or any entity that becomes a Subsidiary as a result of such
transaction,


(iv)          the payment of fees, reasonable
out-of-pocket costs and indemnities to directors, officers, consultants and
employees of Holdings, any Parent Entity, the Borrowers and the Subsidiaries in
the ordinary course of business (limited, in the case of 


 


115

















 


any Parent Entity, to the
portion of such fees and expenses that are allocable to the Borrowers and their
Subsidiaries (which shall be 100% for so long as Holdings or such Parent
Entity, as the case may be, owns no assets other than the Equity Interests in
the Borrowers and assets incidental to the ownership of the Borrowers and their
Subsidiaries)),


(v)           subject to the limitations set forth
in Section 6.07(b)(xiv), if applicable, 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 agreements
entered into by the Borrowers or any of the 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 or directors, and (C) any employee
compensation, benefit plan or arrangement, any health, disability or similar
insurance plan which covers employees, and any reasonable employment contract
and transactions pursuant thereto,


(vii)         dividends, redemptions and repurchases
permitted under Section 6.06, including payments to Holdings (and any
Parent Entity),


(viii)        any purchase by Holdings of the Equity
Interests of the Borrowers; provided, that any Equity Interests of the
Borrowers purchased by Holdings shall be pledged to the Collateral Agent on
behalf of the Lenders pursuant to the Collateral Agreement,


(ix)           payments by the Borrowers or any of
the Subsidiaries to the Fund or any Fund Affiliate 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 of the Borrowers, or a majority of disinterested members of the Board
of Directors of the Borrowers, in good faith,


(x)            transactions with Wholly Owned
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 Borrowers delivers to the Administrative Agent (for delivery to the
Lenders) a letter addressed to the Board of Directors of the Borrowers 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
Borrowers 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 Borrowers or such Subsidiary, as
applicable, than would be obtained in a comparable arm’s-length transaction
with a person that is not an Affiliate,


 


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(xii)          subject to paragraph (xiv) below,
the payment of all fees, expenses, bonuses and awards related to the
Transactions contemplated by Senior Unsecured Notes Offering Memorandum and the
Senior Subordinated Notes Offering Memorandum, including fees to the Fund or
any Fund Affiliate,


(xiii)         transactions with joint ventures for
the purchase or sale of goods, equipment and services entered into in the
ordinary course of business and in a manner consistent with past practice,


(xiv)        any agreement to pay, and the payment
of, monitoring, management, transaction, advisory or similar fees payable to
the Fund or any Fund Affiliate (A) in an aggregate amount in any fiscal
year not to exceed the sum of (1) the greater of $2.5 million and
1.5% of EBITDA, plus reasonable out of pocket costs and expenses in connection
therewith and unpaid amounts accrued for prior periods; plus (2) any
deferred fees (to the extent such fees were within such amount in clause (A)(1)
above originally), plus (B) 1.5% of the value of transactions with respect
to which the Fund or any Fund Affiliate provides any transaction, advisory or
other services, plus (C) a transaction fee of not more than
$20.0 million to be paid to the Fund or a Fund Affiliate in connection
with the Transactions on the Closing Date, plus (D) so long as no Event of
Default has occurred and is continuing, in the event of a Qualified IPO, the
present value of all future amounts payable pursuant to any agreement referred
to in clause (A)(1) above in connection with the termination of such
agreement with the Fund and its Fund Affiliates; provided, that if any
such payment pursuant to clause (D) is not permitted to be paid as a
result of an Event of Default, such payment shall accrue and may be payable
when no Events of Default are continuing to the extent that no further Event of
Default would result therefrom,


(xv)         the issuance, sale, transfer of Equity
Interests of Borrowers to Holdings and capital contributions by Holdings to
Borrowers,


(xvi)        the issuance of Equity Interests to the
management of Holdings, the Borrowers or any Subsidiary in connection with the
Transactions,


(xvii)       payments by Holdings (and any Parent
Entity), the Borrowers and the Subsidiaries pursuant to tax sharing agreements
among Holdings (and any such parent Entity), the Borrowers and the Subsidiaries
on customary terms that require each party to make payments when such taxes are
due or refunds received of amounts equal to the income tax liabilities and
refunds generated by each such party calculated on a separate return basis and
payments to the party generating tax benefits and credits of amounts equal to
the value of such tax benefits and credits made available to the group by such
party,  or


(xviii)      transactions pursuant to any Permitted
Receivables Financing.


(xix)         payments or loans (or cancellation of
loans) to employees or consultants that are (i) approved by a majority of
the Board of Directors of the Borrowers in good 


 


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faith, (ii) made in
compliance with applicable law and (iii) otherwise permitted under this
Agreement;


(xx)          transactions with customers, clients,
suppliers, or purchasers or sellers of goods or services, in each case in the ordinary
course of business and otherwise in compliance with the terms of this Agreement
that are fair to the Borrowers or the Subsidiaries;


(xxi)         transactions between the Borrowers or
any of the Subsidiaries and any person, a director of which is also a director
of the Borrowers or any direct or indirect parent company of the Borrowers, provided,
however, that (A) such director abstains from voting as a director
of the Borrowers or such direct or indirect parent company, as the case may be,
on any matter involving such other person and (B) such person is not an
Affiliate of the Borrowers for any reason other than such director’s acting in
such capacity;


(xxii)        transactions permitted by, and complying
with, the provisions of Section 6.05;


(xxiii)       intercompany transactions undertaken in
good faith (as certified by a Responsible Officer of the Borrowers) for the
purpose of improving the consolidated tax efficiency of the Borrowers and the
Subsidiaries and not for the purpose of circumventing any covenant set forth
herein; and


(xxiv)       the Restructuring Transactions.


SECTION 6.08.  Business
of the Borrowers and the Subsidiaries. 
Notwithstanding any other provisions hereof, engage at any time in any
business or business activity other than 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, and in the case of a Special Purpose Receivables
Subsidiary, Permitted Receivables Financing.


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 manner (if such granting or termination shall be materially
adverse to the Lenders), the articles or certificate of incorporation, by-laws,
limited liability company operating agreement, partnership agreement or other
organizational documents of the Borrowers or any of the Subsidiaries or the
Merger Agreement.


(b)           (i)  Make,
or agree or offer to pay or 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 the loans under the Senior Subordinated Notes or
any Permitted Additional Debt or any Permitted Refinancing Indebtedness in respect
of any of the foregoing or any preferred Equity Interests or any Disqualified
Stock (collectively, “Junior Financing”), or any payment or other
distribution (whether in cash, securities or 


 


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other property), including
any sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination in respect of any Junior
Financing except for (A) Refinancings permitted by Section 6.01(l) or
(r), (B) payments of regularly scheduled interest, and, to the extent this
Agreement is then in effect, principal on the scheduled maturity date any
Junior Financing, (C) payments or distributions in respect of all or any
portion of the Junior Financing with the proceeds contributed to the Borrowers
by Holdings from the issuance, sale or exchange by Holdings (or any direct or
indirect parent of Holdings) of Equity Interests made within eighteen months
prior thereto, (D) the conversion of any Junior Financing to Equity
Interests of Holdings or any of its direct or indirect parents; and (E) so
long as no Default or Event of Default has occurred and is continuing or would
result therefrom and after giving effect to such payment or distribution the
Borrowers would be in Pro Forma Compliance with the Total Senior Secured Bank
Leverage Ratio covenant set forth in Section 6.11, payments or
distributions in respect of Junior Financings prior to their scheduled maturity
made, in an aggregate amount, not to exceed the sum of (x) $10.0 million
and (y) the portion, if any, of the Cumulative Credit on the date of such
payment or distribution that the Borrowers elect to apply to this Section
6.09(b)(i), such election to be specified in a written notice of a Responsible
Officer of the Borrowers calculating in reasonable detail the amount of
Cumulative Credit immediately prior to such election and the amount thereof
elected to be so applied; or


(ii)           Amend or modify, or permit the
amendment or modification of, any provision of Junior Financing, any Permitted
Receivables Document, or any agreement, document or instrument evidencing or
relating thereto, other than amendments or modifications that (A) are not
in any manner materially adverse to Lenders and that do not affect the subordination
or payment provisions thereof (if any) in a manner adverse to the Lenders or
(B) otherwise comply with the definition of “Permitted Refinancing
Indebtedness”.


(c)           Permit any
Material 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 the Borrowers or any Subsidiary that is a direct or indirect
parent of such Subsidiary or (ii) the granting of Liens by the Borrowers
or such Material Subsidiary 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 under Indebtedness existing on the
Closing Date and set forth on Schedule 6.01, the Senior Unsecured
Notes, the Senior Subordinated Notes or any agreements related to any Permitted
Refinancing Indebtedness in respect of any such Indebtedness that does not
expand the scope of any such encumbrance or restriction;


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


 


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(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 or licenses 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, transfer, lease or
other disposition of any asset permitted under Section 6.05 pending the
consummation of such sale, transfer, lease or other disposition;


(J)            customary restrictions and
conditions contained in the document relating to any Lien, so long as
(1) such Lien is a Permitted Lien and such restrictions or conditions
relate only to the specific asset subject to such Lien, 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, so long as the
Borrowers has determined in good faith that such net worth provisions would not
reasonably be expected to impair the ability of the Borrowers and their
Subsidiaries to meet their ongoing obligations;


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


(M)         restrictions in agreements representing
Indebtedness permitted under Section 6.01 of a Subsidiary of the Borrowers
that is not a Subsidiary Loan Party;


(N)          customary restrictions contained in
leases, subleases, licenses or Equity Interests or asset sale agreements
otherwise permitted hereby as long as such restrictions relate to the Equity
Interests and assets subject thereto;


(O)          restrictions on cash or other deposits
imposed by customers under contracts entered into in the ordinary course of
business; or


(P)           restrictions contained in any
Permitted Receivables Document with respect to any Special Purpose Receivables
Subsidiary.


 


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SECTION 6.10.  Capital
Expenditures.  Permit the Borrowers
or their Subsidiaries to make any Capital Expenditure, except that:


(a)           During any fiscal year the Borrowers
and the Subsidiaries may make Capital Expenditures so long as the aggregate
amount thereof (excluding expenditures pursuant to subsections 6.10(b) and
(c)) does not exceed the sum of (i) $60.0 million, (ii) the
Acquired Capex Amount, and (iii) for each fiscal year after any Acquired
Capex Amount is initially included in clause (ii) above, 5% of such
Acquired Capex Amount, calculated on a cumulative basis.


(b)           Notwithstanding anything to the
contrary contained in paragraph (a) above, to the extent that the
aggregate amount of Capital Expenditures made by the Borrowers and the
Subsidiaries in any fiscal year of the Borrowers pursuant to
Section 6.10(a) is less than the amount set forth for such fiscal year,
the amount of such difference may be carried forward and used to make Capital
Expenditures in any succeeding fiscal year.


(c)           In addition to the Capital
Expenditures permitted pursuant to the preceding paragraphs (a) and (b),
the Borrowers and the Subsidiaries may make additional Capital Expenditures at
any time in an amount not to exceed the portion, if any, of the Cumulative
Credit on the date of such Capital Expenditure that the Borrowers elect to
apply to this Section 6.10(c), such election to be specified in a written
notice of a Responsible Officer of the Borrowers calculating in reasonable
detail the amount of Cumulative Credit immediately prior to such election and
the amount thereof elected to be so applied.


SECTION 6.11.  Total
Senior Secured Bank Leverage Ratio. 
With respect to the Revolving Facility only, permit the Total Senior
Secured Bank Leverage Ratio on the last day of any fiscal quarter (beginning
with the fiscal quarter ending December 31, 2006) to exceed 4.25 to 1.00.


SECTION 6.12.  Swap
Agreements.  Enter into any Swap
Agreement, other than (a) Swap Agreements required by any Permitted
Receivables Financing, (b) Swap Agreements entered into in the ordinary
course of business to hedge or mitigate risks to which the Borrowers 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), (c) 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 Borrowers or any Subsidiary and
(d) Swap Agreements entered into in order to swap currency in connection
with funding the business of the Borrowers and their Subsidiaries in the
ordinary course of business.


SECTION 6.13.  No
Other “Designated Senior Debt”. 
Designate, or permit the designation of, any Indebtedness as “Designated
Senior Debt” or any other similar term for the purpose of the definition of the
same or the subordination provisions contained in the Senior Subordinated Notes
Indenture or any indenture governing any Permitted Additional Debt that is
subordinated to the Obligations or any Permitted Refinancing thereof or of the
Senior 


 


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Subordinated Notes other
than (a) the Obligations under this Agreement and the other Loan
Documents, and (b) the Senior Unsecured Notes.


SECTION 6.14.  Fiscal
Year; Accounting.  In the case
of the Borrowers, permit their fiscal year to end on any date other than
March 31 without prior notice to the Administrative Agent given
concurrently with any required notice to the SEC.


ARTICLE
VIA

Holdings Negative Covenants


Holdings (prior to a Qualified IPO) covenants and
agrees with each Lender that, so long as this Agreement shall remain in effect
(other than in respect of contingent indemnification and expense reimbursement
obligations for which no claim has been made) 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 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, unless the Required
Lenders shall otherwise consent in writing, (a) Holdings will not create,
incur, assume or permit to exist any Lien (other than Liens of a type described
in Section 6.02(d), (e) or (k)) on any of the Equity Interests issued by
the Borrowers other than the Liens created under the Loan Documents,
(b) Holdings shall do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its legal existence;
provided, that so long as no Default has occurred and is continuing or would
result therefrom, Holdings may merge with any other person, and
(c) Holdings shall at all times own directly 100% of the Equity Interests
of Merger Sub (prior to the Merger) and Target (after the Merger) and shall not
sell, transfer or otherwise dispose of any Equity Interests in Merger Sub or
Target.


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, any Borrower or any other Loan Party herein or in
any other Loan Document or any certificate or document delivered pursuant
hereto or thereto shall prove to have been false or misleading in any material
respect when so made or deemed made;


(b)           default shall be made in the payment
of any principal of any Loan 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;


 


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(c)           default shall be made in the payment
of any interest on any Loan or the reimbursement with respect to 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, any Borrower or any of the Subsidiaries
of any covenant, condition or agreement contained in Sections 2.05(c),
5.01(a), 5.05(a) or 5.08 or in Article VI (provided that
Section 6.11 shall apply with respect to the Revolving Facility only) or
Article VIA;


(e)           default shall be made in the due
observance or performance by Holdings, any Borrower or any of the 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 (or 60 days
if such default results solely from a Foreign Subsidiary’s failure to duly
observe or perform any such covenant, condition or agreement) after notice
thereof from the Administrative Agent to the Borrowers;


(f)            (i) any event or condition
occurs that (A) results in any Material Indebtedness becoming due prior to
its scheduled maturity or (B) enables or permits (with all applicable
grace periods having expired) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause any
Material Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity, provided,
that any breach of the Financial Performance Covenant with respect to the
Revolving Facility, shall not, by itself, constitute an Event of Default under
the Term Facility, unless such breach shall continue unremedied for a period of
45 days after notice thereof from the Administrative Agent to the
Borrowers; or (ii) Holdings (prior to a Qualified IPO), any Borrower or
any of the Subsidiaries shall fail to pay the principal of any Material
Indebtedness at the stated final maturity thereof; provided, that this
clause (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 and under the
documents providing for such Indebtedness;


(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 (prior to a
Qualified IPO), any Borrower or any of the Subsidiaries, or of a substantial
part of the property or assets of Holdings (prior to a Qualified IPO), any
Borrower or any 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 (prior to a Qualified IPO), any Borrower or any of the Subsidiaries
or for a substantial part of the property or assets of Holdings (prior to a
Qualified IPO), any Borrower or any of the Subsidiaries or (iii) the
winding-up 


 


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or liquidation of Holdings
(prior to a Qualified IPO), any Borrower or any Subsidiary (except, in the case
of any 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 (prior to a Qualified IPO),
any Borrower or any 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 (prior to
a Qualified IPO), any Borrower or any of the Subsidiaries or for a substantial part
of the property or assets of Holdings (prior to a Qualified IPO), any Borrower
or any 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 (prior to a
Qualified IPO), any Borrower or any Subsidiary to pay one or more final
judgments aggregating in excess of $20.0 million (to the extent not
covered by insurance), which judgments are not discharged or effectively waived
or stayed for a period of 45 consecutive days, or any action shall be
legally taken by a judgment creditor to levy upon assets or properties of
Holdings (prior to a Qualified IPO), any Borrower or any 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) an ERISA Event or ERISA Events shall have occurred with respect to
any Plan or Multiemployer Plan, (iii) the PBGC shall institute proceedings
(including giving notice of intent thereof) to terminate any Plan or Plans, (iv) Holdings
(prior to a Qualified IPO), any Borrower or any 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, (v) Holdings (prior to a Qualified
IPO), any Borrower or any Subsidiary shall engage in any “prohibited
transaction” (as defined in Section 406 of ERISA or Section 4975 of
the Code) involving any Plan or (vi) any other similar event or condition
shall occur or exist with respect to a Plan; and in each case in
clauses (i) through (vi) above, such event or condition, together with all
other such events or conditions, if any, would reasonably be expected to have a
Material Adverse Effect; or


(l)            (i) any Loan Document shall for
any reason be asserted in writing by Holdings (prior to a Qualified IPO), any
Borrower or any 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 (prior to a Qualified IPO), the Borrowers and the Subsidiaries on a
consolidated basis shall cease to be, or shall be asserted in writing by any
Borrower or any other Loan 


 


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Party not to be, a valid and
perfected security interest (perfected as or 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 that any such
loss of perfection or priority results from the limitations of foreign laws,
rules and regulations as they apply to pledges of Equity Interests in Foreign
Subsidiaries or the application thereof, or from the failure of the
Collateral Agent to maintain possession of certificates actually delivered to
it representing securities pledged under the Collateral Agreement or to file
Uniform Commercial Code continuation statements or take the actions described
on Schedule 3.04 and except to the extent that such loss is covered
by a lender’s title insurance policy and the Collateral Agent shall be
reasonably satisfied with the credit of such insurer, or (iii) the
Guarantees pursuant to the Security Documents by Holdings (prior to a Qualified
IPO), the Borrowers 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 (prior to a
Qualified IPO) or any Borrower or any Subsidiary Loan Party not to be in effect
or not to be legal, valid and binding obligations; or


(m)          (i) the Obligations shall fail to
constitute “Senior Debt” (or the equivalent thereof) and “Designated Senior
Debt” (or the equivalent thereof) under the Senior Subordinated Notes Indenture
and under the documentation governing any Permitted Additional Debt
constituting subordinated Indebtedness or any Permitted Refinancing
Indebtedness in respect of the Senior Subordinated Notes or any Permitted
Additional Debt constituting subordinated Indebtedness, or (ii) the
subordination provisions thereunder shall be invalidated or otherwise cease, or
shall be asserted in writing by Holdings, any 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 any Borrower
described in paragraph (h) or (i) above), and at any time thereafter
during the continuance of such event, the Administrative Agent, at the request
of the Required Lenders, shall, by notice to the Borrowers, 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 Borrowers 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 Borrowers, 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 any Borrower described in paragraph (h) or (i) 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 Borrowers 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 


 


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or
any other notice of any kind, all of which are hereby expressly waived by the
Borrowers, anything contained herein or in any other Loan Document to the
contrary notwithstanding.


SECTION 7.02.  Exclusion
of Immaterial Subsidiaries.   Solely
for the purposes of determining whether an Event of Default has occurred under
clause (h), (i) or (j) of Section 7.01, any reference in any such
clause to any Subsidiary shall be deemed not to include any Immaterial
Subsidiary affected by any event or circumstance referred to in any such
clause.


SECTION
7.03.  Right to Cure(a)       .  Notwithstanding anything to the contrary
contained in Section 7.01, in the event that the Borrowers fail (or, but
for the operation of this Section 7.03, would fail) to comply with the
requirements of the Financial Performance Covenant, until the expiration of the
10th day subsequent to the date the certificate calculating such Financial
Performance Covenant is required to be delivered pursuant to
Section 5.04(c),


(a)           Borrowers,
Holdings and any of their respective Subsidiaries shall have the right to issue
Junior Capital for cash or otherwise receive cash contributions to the capital
of such entities, and, in each case, to directly or indirectly apply such
proceeds (the “Revolving Facility Reduction Amount”) to reduce the
aggregate principal amount of Revolving Facility Loans outstanding under the
Revolving Facility to $0 and cash collateralize all outstanding Letters of
Credit in the manner set forth in Section 2.05(j), and upon the
application of such proceeds and the cash collateralization of such Letters of
Credit, the Borrowers shall be deemed to have satisfied the requirements of the
Financial Performance Covenant 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 Financial Performance
Covenant that had occurred shall be deemed cured for this purposes of the
Agreement; and


(b)           Holdings shall
have the right to issue Permitted Cure Securities for cash or otherwise receive
cash contributions to the capital of Holdings, and, in each case, to contribute
any such cash to the capital of the Borrowers (collectively, the “Cure Right”),
and upon the receipt by the Borrowers of such cash (the “Cure Amount”)
pursuant to the exercise by Holdings of such Cure Right such Financial
Performance Covenant shall be recalculated giving effect to a pro forma
adjustment by which EBITDA shall be increased with respect to such applicable
quarter and any four-quarter period that contains such quarter, solely for the
purpose of measuring the Financial Performance Covenant and not for any other
purpose under this Agreement, by an amount equal to the Cure Amount; provided,
that, (i) in each four-fiscal-quarter period there shall be at least
one fiscal quarter in which the Cure Right is not exercised and (ii) for
purposes of this Section 7.03, the Cure Amount shall be no greater than
the amount required for purposes of complying with the Financial Performance
Covenant.  If, after giving effect to
the adjustments in this paragraph (b), the Borrowers shall then be in
compliance with the requirements of the Financial Performance Covenant, the
Borrowers shall be deemed to have satisfied the requirements of the Financial
Performance Covenant 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 Financial Performance Covenant that
had occurred shall be deemed cured for this purposes of the Agreement.


 


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ARTICLE VIII

The Agents


SECTION 8.01.  Appointment.  (a) Each Lender (in its capacities as a
Lender and the Swingline Lender (if applicable) and on behalf of itself and its
Affiliates as potential counterparties to Swap Agreements) and each Issuing
Bank (in such capacities and on behalf of itself and its Affiliates as
potential counterparties to Swap Agreements) hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this Agreement
and the other Loan Documents, including as the Collateral Agent for such Lender
and the other Secured Parties under the Security 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.  In addition, to the
extent required under the laws of any jurisdiction other than the United
States, each of the Lenders and the Issuing Banks hereby grants to the
Administrative Agent any required powers of attorney to execute any Security
Document governed by the laws of such jurisdiction on such Lender’s or Issuing
Bank’s behalf.  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.


(b)           In furtherance
of the foregoing, each Lender (in its capacities as a Lender and the Swingline
Lender (if applicable) and on behalf of itself and its Affiliates as potential
counterparties to Swap Agreements) and each Issuing Bank (in such capacities
and on behalf of itself and its Affiliates as potential counterparties to Swap
Agreements) hereby appoints and authorizes the Administrative Agent to act as
the agent of such Lender for purposes of acquiring, holding and enforcing any
and all Liens on Collateral granted by any of the Loan Parties to secure any of
the Obligations, together with such powers and discretion as are reasonably
incidental thereto.  In this connection,
the Administrative Agent (and any Subagents appointed by the Administrative
Agent pursuant to Section 8.02
for purposes of holding or enforcing any Lien on the Collateral (or any portion
thereof) granted under the Security Documents, or for exercising any rights or
remedies thereunder at the direction of the Administrative Agent) shall be
entitled to the benefits of this Article VIII
(including, without limitation, Section 8.07)
as though the Administrative Agent (and any such Subagents) were an “Agent”
under the Loan Documents, as if set forth in full herein with respect thereto.


(c)           Each Lender (in
its capacities as a Lender and the Swingline Lender (if applicable) and on
behalf of itself and its Affiliates as potential counterparties to Swap
Agreements) and each Issuing Bank (in such capacities and on behalf of itself
and its Affiliates as potential counterparties to Swap Agreements) irrevocably
authorizes the Administrative Agent, at its option and in its discretion,
(i) to release any Lien on any property granted to or held by the
Administrative Agent under any Loan Document (A) upon termination of the
Commitments and payment in full of all Obligations (other than contingent
indemnification 


 


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obligations) and the expiration,
termination or cash collateralization of all Letters of Credit, (B) that
is sold or to be sold as part of or in connection with any sale permitted
hereunder or under any other Loan Document, or (C) if approved, authorized
or ratified in writing in accordance with Section 9.08 hereof,
(ii) to release any Guarantor from its obligations under the Loan
Documents if such person ceases to be a Subsidiary as a result of a transaction
permitted hereunder; and (iii) to subordinate any Lien on any property
granted to or held by the Administrative Agent under any Loan Document to the
holder of any Lien on such property that is permitted by Section 6.02(i)
and (j).  Upon request by the
Administrative Agent at any time, the Required Lenders will confirm in writing
the Administrative Agent’s authority to release its interest in particular
types or items of property, or to release any Guarantor from its obligations
under the Loan Documents.


(d)           In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, (i) the Administrative Agent
(irrespective of whether the principal of any Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrowers)
shall be entitled and empowered, by intervention in such proceeding or
otherwise (A) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of any or all of the
Obligations that are owing and unpaid and to file such other documents as may
be necessary or advisable in order to have the claims of the Lenders, the
Issuing Banks and the Administrative Agent and any Subagents allowed in such
judicial proceeding, and (B) to collect and receive any monies or other
property payable or deliverable on any such claims and to distribute the same,
and (ii) any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Lender and Issuing Bank to make such payments to the
Administrative Agent and, if the Administrative Agent shall consent to the
making of such payments directly to the Lenders and the Issuing Banks, to pay
to the Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent and its agents
and counsel, and any other amounts due the Administrative Agent under the Loan
Documents.  Nothing contained herein
shall be deemed to authorize the Administrative Agent to authorize or consent
to or accept or adopt on behalf of any Lender or Issuing Bank any plan of
reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or Issuing Bank or to authorize the
Administrative Agent to vote in respect of the claim of any Lender or Issuing
Bank in any such proceeding.


SECTION
8.02.  Delegation of Duties.  The Administrative Agent may execute any of
its duties under this Agreement and the other Loan Documents (including for
purposes of holding or enforcing any Lien on the Collateral (or any portion
thereof) by or through agents, employees or attorneys-in-fact and shall be
entitled to advice of counsel and other consultants or experts 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.  The Administrative Agent may also from time
to time, when the Administrative Agent deems it to be necessary or desirable,
appoint one or more trustees, co-trustees, collateral co-agents,
collateral subagents or attorneys-in-fact (each, a “Subagent”) with respect to all or any part of the Collateral;
provided, that no such Subagent shall be authorized to take any action with
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expressly authorized in
writing by the Administrative Agent. 
Should any instrument in writing from the Borrowers or any other Loan
Party be required by any Subagent so appointed by the Administrative Agent to
more fully or certainly vest in and confirm to such Subagent such rights,
powers, privileges and duties, the Borrowers shall, or shall cause such Loan
Party to, execute, acknowledge and deliver any and all such instruments
promptly upon request by the Administrative Agent.  If any Subagent, or successor thereto, shall
die, become incapable of acting, resign or be removed, all rights, powers,
privileges and duties of such Subagent, to the extent permitted by law, shall
automatically vest in and be exercised by the Administrative Agent until the
appointment of a new Subagent.  The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agent, attorney-in-fact or Subagent that it selects in accordance with
the foregoing provisions of this Section 8.02
in the absence of the Administrative Agent’s gross negligence or willful
misconduct.


SECTION 8.03.  Exculpatory
Provisions.  Neither any Agent or its
Affiliates nor any of their respective officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (a) 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 (b) responsible in any manner
to any of the Lenders for 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 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.  The Administrative Agent shall
not have any duties or obligations except those expressly set forth herein and
in the other Loan Documents.  Without
limiting the generality of the foregoing, (a) the Administrative Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether
a Default or Event of Default has occurred and is continuing, and (b) the
Administrative Agent shall not, except as expressly set forth herein and in the
other Loan Documents, have any duty to disclose, and shall not be liable for
the failure to disclose, any information relating to the Borrowers or any of
their Affiliates that is communicated to or obtained by the person serving as
the Administrative Agent or any of its Affiliates in any capacity.  The Administrative Agent shall be deemed not
to have knowledge of any Default or Event of Default unless and until notice
describing such Default or Event of Default is given to the Administrative
Agent by the Borrowers, a Lender or an Issuing Bank.  The Administrative Agent shall not be
responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with this
Agreement or any other Loan Document, (ii) the contents of any
certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith, (iii) the performance or observance of
any of the covenants, agreements or other terms or conditions set forth herein
or therein or the occurrence of any Default or Event of Default, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement, any
other Loan Document or any other agreement, instrument or document, or the
creation, 


 


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perfection or priority of
any Lien purported to be created by the Security Documents, (v) the value
or the sufficiency of any Collateral, or (vi) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.


SECTION 8.04.  Reliance
by Administrative Agent.  The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) or
conversation believed by it to be genuine and to have been signed, sent or
otherwise authenticated by the proper person. 
The Administrative Agent also may rely upon any statement made to it
orally or by telephone and believed by it to have been made by the proper
person, and shall not incur any liability for relying thereon.  In determining compliance with any condition
hereunder to any Credit Event, that by its terms must be fulfilled to the
satisfaction of a Lender or any Issuing Bank, the Administrative Agent may
presume that such condition is satisfactory to such Lender or Issuing Bank
unless the Administrative Agent shall have received notice to the contrary from
such Lender or the Issuing Bank prior to such Credit Event.  The Administrative Agent may consult with
legal counsel (including counsel to Holdings or the Borrowers), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.  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 or other
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 or other 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 Borrowers 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 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 or other 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.


 


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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 and
each Issuing Bank in its capacity as such (to the extent not reimbursed by
Holdings or the Borrowers and without limiting the obligation of Holdings or
the Borrowers to do so), in the amount of its pro rata share (based on its
aggregate Revolving Facility Exposure, outstanding Term Loans and unused
Commitments hereunder; provided, that the aggregate principal amount of
Swingline Loans owing to the Swingline Lender and of L/C Disbursements owing to
any Issuing Bank shall be considered to be owed to the Revolving Facility
Lenders ratably in accordance with their respective Revolving Facility
Exposure), 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
or such Issuing Bank 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 or such Issuing Bank 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 or such Issuing Bank’s gross
negligence or willful misconduct.  The
failure of any Lender to reimburse any Agent or any Issuing Bank, as the case
may be, promptly upon demand for its ratable share of any amount required to be
paid by the Lenders to such Agent or such Issuing Bank, as the case may be, as
provided herein shall not relieve any other Lender of its obligation hereunder
to reimburse such Agent or such Issuing Bank, as the case may be, for its
ratable share of such 


 


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amount, but no Lender
shall be responsible for the failure of any other Lender to reimburse such
Agent or such Issuing Bank, as the case may be, for such other Lender’s ratable
share of such amount.  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
Letter of Credit or Swingline Loan 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 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 10 days’ notice to
the Lenders and the Borrowers.  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 Section 7.01(b), (c), (h) or (i)
shall have occurred and be continuing) be subject to approval by the Borrowers
(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 10
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.  After any retiring Administrative Agent’s
resignation as Administrative Agent, the provisions of this Section 8.09
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement and the other Loan
Documents.


SECTION 8.10.  Agents
and Arrangers.  Neither the
Syndication Agent, the Documentation Agents nor any of the Co-Lead
Arrangers shall have any duties or responsibilities hereunder in its capacity
as such.


SECTION
8.11.  Special Appointment of
Collateral Agent (Germany). 
(a)  Without prejudice to the generality of Article VIII,
(i) each Lender hereby appoints, on the terms hereof by its acceptance of
the benefits of the German Security and by notice in writing to the Collateral
Agent to that effect appoints, on the terms hereof, the Collateral Agent as
trustee (Treuhaender), agent and administrator
for the purpose of holding on trust (Treuhand),
accepting, administering and enforcing the German Security for and on behalf of
the Lenders; (ii) the Collateral Agent accepts its appointment as trustee
(Treuhaender), agent and administrator of
the German Security on the terms and subject to the conditions set out in this
Agreement; and (iii) the Lenders agree that, in relation to the German
Security, no Lender shall 


 


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exercise
any independent power to enforce any German Security or take any other action
in relation to the enforcement of the German Security, or make or receive any
declarations in relation thereto.


(b)           The Collateral
Agent shall administer any German Security which is pledged under German law (verpfändet) to any of the Lenders under an accessory
security right (akzessorische Sicherheit).


(c)           Furthermore,
each Lender hereby authorizes the Collateral Agent (with the right of
sub-delegation) to enter into any documents evidencing German Security and to
make and accept all declarations and take all actions as it considers necessary
or useful in connection with any German Security on behalf of such Lender.  The Collateral Agent shall further be
entitled to rescind, release, amend and/or execute new and different documents
securing the German Security. The Collateral Agent is released from the
restrictions arising under section 181 of the German Civil Code (Buergerliches Gesetzbuch) (restrictions on self-dealing).


SECTION
8.12.  Parallel Debt (The Netherlands
and Germany).  (a)  For the purpose of creating a valid Lien under
applicable Dutch and German law, each of the Loan Parties irrevocably and
unconditionally undertakes (and to the extent necessary undertakes in advance)
to pay to the Collateral Agent amounts equal to any amounts owing from time to
time by a Loan Party to any Secured Party under or pursuant to the Obligations,
as and when those amounts are due.


(b)           All parties hereto acknowledge that the obligations of
a Loan Party under paragraph (a) are several and are separate and
independent from, and shall not in any way limit or affect, the corresponding
obligations of such Loan Party to any Secured Party under or pursuant to the
Obligations (“Corresponding Debt”) nor shall the amounts for which such
Loan Party is liable under paragraph (a) (“Parallel Debt”) be
limited or affected in any way by its Corresponding Debt provided that:  (i) the Parallel Debt of a Loan Party
shall be decreased to the extent that its Corresponding Debt has been
irrevocably paid or (in the case of guarantee obligations) discharged,
(ii) the Corresponding Debt of a Loan Party shall be decreased to the
extent that its Parallel Debt has been irrevocably paid or (in the case of
guarantee obligations) discharged and (iii) the amount of the Parallel
Debt of a Loan Party shall at all times be equal to the amount of its
Corresponding Debt.


(c)           For the purpose of this Section 8.12, the
Collateral Agent acts in its own name and on behalf of itself and not as agent,
representative or trustee of any Secured Party, and its claims in respect of
the Parallel Debt shall not be held on trust. 
Any Lien granted under the Security Documents to the Collateral Agent to
secure a Parallel Debt is granted to the Collateral Agent in its capacity as
creditor of that Parallel Debt and shall not be held on trust.


(d)           All monies received or recovered by the Collateral
Agent pursuant to this Section 8.12, and all amounts received or recovered by
the Collateral Agent from or by the enforcement of any Lien granted to secure
the Parallel Debt, shall be applied in accordance with Section 2.18 of this
Agreement.


 


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(e)           Without limiting or affecting the Collateral Agent’s
rights against a Loan Party (whether under this Section 8.12 or under any
other provision of the Loan Documents), the Borrowers acknowledge that
(i) nothing in this Section 8.12 shall impose any obligation on the
Collateral Agent to advance any sum to a Loan Party or otherwise under or
pursuant to the Obligations, except in its capacity as Lender and (ii) for
the purpose of any vote taken under any Loan Document, the Collateral Agent
shall not be regarded as having any participation or commitment other than
those which it has in its capacity as Lender.


(f)            For the avoidance of doubt, the Parallel Debt of a
Loan Party will become due and payable at the same time the Corresponding Debt
of a Loan Party becomes due and payable.


ARTICLE IX

Miscellaneous


SECTION
9.01.  Notices; Communications.  (a)  Except in the case of notices
and other communications expressly permitted to be given by telephone (and
except as provided in Section 9.01(b) below), all notices and other
communications provided for herein shall be in writing and shall be delivered
by hand or overnight courier service, mailed by certified or registered mail or
sent by telecopier as follows, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:


(i)            if to any Loan Party, the
Administrative Agent, the Issuing Bank or the Swingline Lender, to the address,
telecopier number, electronic mail address or telephone number specified for
such person on Schedule 9.01; and


(ii)           if to any other Lender, to the
address, telecopier number, electronic mail address or telephone number
specified in its Administrative Questionnaire.


(b)           Notices and other communications to
the Lenders and the Issuing Bank hereunder may be delivered or furnished by
electronic communication (including e-mail and Internet or intranet
websites) pursuant to procedures approved by the Administrative Agent; provided
that the foregoing shall not apply to notices to any Lender or the Issuing Bank
pursuant to Article II if such Lender or the Issuing Bank, as applicable,
has notified the Administrative Agent that it is incapable of receiving notices
under such Article by electronic communication. 
The Administrative Agent or the Borrowers may, in their discretion,
agree to accept notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by them, provided that approval of such
procedures may be limited to particular notices or communications.


(c)           Notices sent by hand or overnight
courier service, or mailed by certified or registered mail, shall be deemed to
have been given when received.  Notices
sent by telecopier shall be deemed to have been given when sent (except that,
if not given during normal business hours for the recipient, shall be deemed to
have been given at the 


 


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opening of business on the
next business day for the recipient). 
Notices delivered through electronic communications to the extent
provided in Section 9.01(b) above shall be effective as provided in such
Section 9.01(b).


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


(e)           Documents required to be delivered
pursuant to Section 5.04 (to the extent any such documents are included in
materials otherwise filed with the SEC) may be delivered electronically
(including as set forth in Section 9.18) and if so delivered, shall be
deemed to have been delivered on the date (i) on which the Borrowers post
such documents, or provides a link thereto on the Borrowers’ website on the
Internet at the website address listed on Schedule 9.01, or
(ii) on which such documents are posted on the Borrowers’ behalf on an
Internet or intranet website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial, third-party website or
whether sponsored by the Administrative Agent); provided, that
(A) the Borrowers shall deliver paper copies of such documents to the
Administrative Agent or any Lender that requests the Borrowers to deliver such
paper copies until a written request to cease delivering paper copies is given
by the Administrative Agent or such Lender, and (B) the Borrowers shall
notify the Administrative Agent and each Lender (by telecopier or electronic
mail) of the posting of any such documents and provide to the Administrative
Agent by electronic mail electronic versions (i.e., soft copies) of such
documents.  Notwithstanding anything
contained herein, in every instance the Borrowers shall be required to provide
paper copies of the certificates required by Section 5.04(c) to the
Administrative Agent.  Except for such
certificates required by Section 5.04(c), the Administrative Agent shall
have no obligation to request the delivery or to maintain copies of the
documents referred to above, and in any event shall have no responsibility to
monitor compliance by the Borrowers with any such request for delivery, and
each Lender shall be solely responsible for requesting delivery to it or
maintaining its copies of such documents.


SECTION 9.02.  Survival
of Agreement.  All covenants,
agreements, representations and warranties made by the Loan Parties herein, in
the other Loan Documents and in the certificates or other instruments prepared
or delivered in connection with or pursuant to this Agreement or any other Loan
Document shall be considered to have been relied upon by the Lenders and each
Issuing Bank and shall survive the making by the Lenders of the Loans, the
execution and delivery of the Loan Documents and the issuance of the Letters of
Credit, regardless of any investigation made by such persons or on their
behalf, 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 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, indemnification and reimbursement obligations 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
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SECTION 9.03.  Binding
Effect.  This Agreement shall become
effective when it shall have been executed by Holdings, the Borrowers 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 Borrowers, 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 Borrowers 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 Borrowers 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 paragraph (b)(ii) below, any Lender may
assign to one or more assignees (each, an “Assignee”) 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) with the prior
written consent (such consent not to be unreasonably withheld) of:


(A)          the Borrowers; provided, that
no consent of the Borrowers shall be required for an assignment to a Lender, an
Affiliate of a Lender, an Approved Fund (as defined below), during the primary
syndication of the Loans to persons identified by the Administrative Agent and
reasonably acceptable to the Borrowers on or prior to the Closing Date, or, if
an Event of Default under Sections 7.01(b), (c), (h) or (i) has occurred
and is continuing, any other person;


(B)           the Administrative Agent; provided,
that no consent of the Administrative Agent shall be required for an assignment
of all or any portion of a Term Loan  to
a Lender, an Affiliate of a Lender or an Approved Fund; and


(C)           the Issuing Bank and the Swingline
Lender; provided, that no consent of the Issuing Bank and the Swingline
Lender shall be required for an assignment of all or any portion of a Term
Loan.


(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 Approved Fund or an assignment of the
entire remaining amount of the assigning Lender’s Commitments or Loans under
any Facility, the amount of the 


 


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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 (x) $1.0 million in
the case of Term Loans and (y) $5.0 million in the case of Revolving
Facility Loans or Revolving Facility Commitments, unless each of the Borrowers
and the Administrative Agent otherwise consent; provided, that
(1) no such consent of the Borrowers shall be required if an Event of
Default under Sections 7.01(b), (c), (h) or (i) has occurred and is
continuing and (2) such amounts shall be aggregated in respect of each
Lender and its Affiliates or Approved Funds (with simultaneous assignments to
or by two or more Related Funds shall be treated as one assignment), 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 set
forth on Schedule 9.04;


(C)           the Assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire and any tax forms; and


(D)           the Assignee shall not be the
Borrowers or any of the Borrowers’ Affiliates or Subsidiaries.


For the purposes of this Section 9.04, “Approved
Fund” means any person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions
of credit in the ordinary course and that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate
of an entity that administers or manages a Lender.  Notwithstanding the foregoing, no Lender
shall be permitted to assign or transfer any portion of its rights and
obligations under this Agreement to any entity previously identified in that
certain letter dated as of the date hereof from the Borrowers to the
Administrative Agent.


(iii)          Subject to acceptance and recording
thereof pursuant to paragraph (b)(v) below, from and after the effective
date specified in each Assignment and Acceptance the 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).  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 Borrowers, 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 


 


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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, and the Borrowers, 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 the contrary.  The Register shall be available for
inspection by the Borrowers, the Issuing Bank and any Lender, 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 Assignee, the
Assignee’s completed Administrative Questionnaire (unless the Assignee shall
already be a Lender hereunder), the processing and recordation fee referred to
in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, 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 paragraph (b)(v).


(c)           By executing
and delivering an Assignment and Acceptance, the assigning Lender thereunder
and the Assignee thereunder shall be deemed to confirm to and agree with each
other and the other parties hereto as follows: 
(i) such assigning Lender warrants that it is the legal and beneficial
owner of the interest being assigned thereby free and clear of any adverse
claim and that its Term Loan B Commitment and Revolving Facility
Commitment, and the outstanding balances of its Term Loans and Revolving
Facility Loans, in each case without giving effect to assignments thereof which
have not become effective, are as set forth in such Assignment and Acceptance,
(ii) except as set forth in clause (i) above, such assigning Lender
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
this Agreement, or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement, any other Loan Document or
any other instrument or document furnished pursuant hereto, or the financial
condition of Holdings, the Borrowers or any Subsidiary or the performance or
observance by Holdings, the Borrowers or any Subsidiary of any of its
obligations under this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto; (iii) the Assignee
represents and warrants that it is legally authorized to enter into such
Assignment and Acceptance; (iv) the Assignee confirms that it has received
a copy of this Agreement, together with copies of the most recent financial
statements referred to in Section 3.05 (or delivered pursuant to
Section 5.04), and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (v) the Assignee will independently and without
reliance upon the Administrative Agent, the Collateral Agent, such assigning
Lender 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 decisions in
taking or not taking action under this Agreement; (vi) the Assignee
appoints and authorizes the Administrative Agent to take such action as agent
on its behalf and to exercise such powers under this Agreement as are delegated
to the Administrative Agent by the terms of this Agreement, together with such
powers as are reasonably incidental 


 


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thereto; and (vii) the
Assignee agrees that it will perform in accordance with their terms all the
obligations which by the terms of this Agreement are required to be performed
by it as a Lender.


(d)           (i)  Any
Lender may, without the consent of the Borrowers or the Administrative Agent,
sell participations to one or more banks or other entities (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 Borrowers, 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 (x) such agreement may provide
that such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver that (1) requires the consent of each
Lender directly affected thereby pursuant to Section 9.04(a)(i) or
clauses (i), (ii), (iii), (iv), (v) or (vi) of the first proviso to
Section 9.08(b) and (2) directly affects such Participant and
(y) no other agreement with respect to amendment, modification or waiver
may exist between such Lender and such Participant.  Subject to paragraph (c)(ii) of this
Section 9.04, the Borrowers agree 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
that 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
Borrowers’ prior written consent.  A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 2.17 to the extent such Participant
fails to comply with Section 2.17(e) and (f) as though it were a Lender.


(e)           Any Lender may
at any time 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 in the
case of any Lender that is an Approved Fund, any pledge or assignment to any
holders of obligations owed, or securities issued, by such Lender, including to
any trustee for, or any other representative of, such holders, 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 Assignee for such Lender as a party hereto.


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


 


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(g)           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
Borrowers or the Administrative Agent. 
Each of Holdings, the Borrowers, 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.


(h)           If the
Borrowers wish to replace the Loans or Commitments under any Facility with ones
having different terms, they 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 Borrowers), 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
Borrowers agree 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 Borrowers and the reasonable
fees, disbursements and charges for no more than one 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), including the reasonable fees, charges and
disbursements of Cravath,
Swaine & Moore LLP, counsel for the Administrative Agent and
the Co-Lead Arrangers, and, if necessary, the reasonable fees, charges
and disbursements of one local counsel per jurisdiction, and (ii) all
out-of-pocket expenses (including Other Taxes) 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
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Credit issued hereunder,
including the fees, charges and disbursements of counsel for the Administrative
Agent (including any special and local counsel).


(b)           The Borrowers
agree to indemnify the Administrative Agent, the Agents, the Co-Lead
Arrangers, each Issuing Bank, each Lender, each of their respective Affiliates
and each of their respective directors, trustees, officers, employees, agents,
trustees and advisors (each such person being called an “Indemnitee”)
against, and to hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including reasonable counsel fees,
charges and disbursements (except the allocated costs of in-house
counsel), incurred by or asserted against any Indemnitee arising out of, in any
way connected with, 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 and
regardless of whether such matter is initiated by a third party or by Holdings,
the Borrowers or any of their subsidiaries or Affiliates; provided, that
such indemnity shall not, as to any Indemnitee, be available to the extent that
such losses, claims, damages, liabilities or related expenses are determined by
a final, non-appealable judgment of a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of such Indemnitee (for
purposes of this proviso only, each of the Administrative Agent, any Joint Lead
Arranger, any Issuing Bank or any Lender shall be treated as several and
separate Indemnitees, but each of them together with its respective Related
Parties, shall be treated as a single Indemnitee).  Subject to and without limiting the
generality of the foregoing sentence, the Borrowers agree to indemnify each
Indemnitee against, and hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities and related expenses, including reasonable counsel
or consultant fees, charges and disbursements (limited to not more than one
counsel, plus, if necessary, one local counsel per jurisdiction) (except the
allocated costs of in-house counsel), incurred by or asserted against any
Indemnitee arising out of, in any way connected with, or as a result of
(A) any claim, cost or liability related in any way to Environmental Laws
and Holdings, the Borrowers or any of their Subsidiaries or their respective
predecessors, or (B) any actual or alleged presence, Release or threatened
Release of Hazardous Materials at, under, on, from or to any property currently
or formerly owned, operated or leased by the Borrowers or any of their
Subsidiaries or their respective predecessors, or any other location where
wastes generated by the Borrowers or any of their Subsidiaries or their
respective predecessors were disposed; provided, that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted
from the gross negligence or willful misconduct of such Indemnitee or any of
its Related Parties.  None of the
Indemnitees (or any of their respective affiliates) shall be responsible or
liable to the Fund, Holdings, the Borrowers or any of their respective
subsidiaries, Affiliates or stockholders or any other person or entity for any
special, indirect, consequential or punitive damages, which may be alleged as a
result of the Facilities or the Transactions. 
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 invalidity or unenforceability of any
term or provision of this Agreement or any other Loan Document, or any
investigation made by or on 


 


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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.


(d)           To the fullest
extent permitted by applicable law, Holdings and the Borrowers shall not
assert, and hereby waive, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby, the transactions contemplated hereby or thereby, any Loan
or Letter of Credit or the use of the proceeds thereof.  No Indemnitee shall be liable for any damages
arising from the use by unintended recipients of any information or other materials
distributed by it through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby.


(e)           The agreements
in this Section 9.05 shall survive the resignation of the Administrative
Agent, any Issuing Bank, the replacement of any Lender, the termination of the
Commitments and the repayment, satisfaction or discharge of all the other
Obligations and the termination of this Agreement.


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 (prior to a Qualified IPO), the Borrowers
or any Subsidiary against any of and all the obligations of Holdings (prior to
a Qualified IPO) or the Borrowers 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.


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
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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 otherwise have.  No waiver of any provision of this Agreement
or any other Loan Document or consent to any departure by Holdings, the
Borrowers 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 Borrowers 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)           Neither this
Agreement nor any other Loan Document nor any provision hereof or thereof may
be waived, amended or modified except (x) as provided in
Section 2.21, (y) in the case of this Agreement, pursuant to an
agreement or agreements in writing entered into by Holdings (prior to a
Qualified IPO), the Borrowers and the Required Lenders (or, in respect of any
waiver, amendment or modification of Section 6.11, the Majority Lenders in
respect of the Revolving Facility rather than the Required Lenders), and
(z) 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 decrease or waive any prepayment
premium that is payable under Section 2.10(e) (or waive, amend or modify any
definition related to such prepayment premium), 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 affected thereby, except as
provided in Section 2.05(c); provided, that any amendment to the
financial covenant 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 Commitment of
any Lender or decrease the Commitment Fees or L/C Participation Fees or other
fees of any Lender 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 adversely affected thereby,


(iv)          amend the provisions of
Section 5.02 of the Collateral Agreement, or any analogous provision of
any other Security Document, 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 adversely affected thereby,


 


 


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(v)           amend or modify the provisions of
this Section 9.08 or the definition of the terms “Required Lenders,” “Majority
Lenders” or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the prior written consent
of each Lender 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 any of Holdings (prior to a Qualified IPO), the Borrowers
or all or substantially all of the Subsidiary Loan Parties from their
respective 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;


(vii)         effect any waiver, amendment or
modification that by its terms adversely affects the rights in respect of
payments or collateral of Lenders participating in any Facility differently
from those of Lender participating in another Facility, without the consent of
the Majority Lenders participating in the adversely affected Facility (it being
agreed that the Required Lenders may waive, in whole or in part, any prepayment
or Commitment reduction required by Section 2.11 so long as the
application of any prepayment or Commitment reduction still required to be made
is not changed);


provided, further, that no such agreement shall amend,
modify or otherwise affect the rights or duties of the Administrative Agent or
an Issuing Bank hereunder without the prior written consent of the Administrative
Agent or such Issuing Bank acting as such at the effective date of such
agreement, as applicable.  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, Holdings and
the Borrowers (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 


 


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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.


(e)           Notwithstanding
the foregoing, technical and conforming modifications to the Loan Documents may
be made with the consent of the Borrowers and the Administrative Agent to the
extent necessary to integrate any Incremental Term Loan Commitments or
Incremental Revolving Facility Commitments on substantially the same basis as
the Term Loans or Revolving Facility Loans, as applicable.


SECTION 9.09.  Interest
Rate Limitation.  Notwithstanding
anything herein to the contrary, if at any time the applicable interest rate,
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.  No
Liability of the Issuing Bank.  The
Borrowers assume all risks of the acts or omissions of any beneficiary or
transferee of any Letter of Credit with respect to its use of such Letter of
Credit.  Neither any Issuing Bank nor any
of its officers or directors shall be liable or responsible for:  (a) the use that may be made of any
Letter of Credit or any acts or omissions of any beneficiary or transferee in
connection therewith; (b) the validity, sufficiency or genuineness of
documents, or of any endorsement thereon, even if such documents should prove
to be in any or all respects invalid, insufficient, fraudulent or forged;
(c) payment by such Issuing Bank against presentation of documents that do
not comply with the terms of a Letter of Credit, including failure of any
documents to bear any reference or adequate reference to the Letter of Credit;
or (d) any other circumstances whatsoever in making or failing to make
payment under any Letter of Credit, except that the Borrowers shall have a
claim against such Issuing Bank, and such Issuing Bank shall be liable to the
Borrowers, to the extent of any direct, but not consequential, damages suffered
by the Borrowers that the Borrowers prove were caused by (i) such Issuing
Bank’s willful misconduct or gross negligence as determined in a final,
non-appealable judgment by a court of competent jurisdiction in determining
whether documents presented under any Letter of Credit comply with the terms of
the Letter of Credit or (ii) such Issuing Bank’s willful failure to make
lawful payment under a Letter of Credit after the presentation to it of a draft
and certificates strictly complying with the terms and conditions of the Letter
of Credit.  In furtherance and not in
limitation of the foregoing, such Issuing Bank may accept documents that appear
on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary.


SECTION 9.11.  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
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superseded by this
Agreement and the other Loan Documents. 
Notwithstanding the foregoing, the Fee Letter shall survive the
execution and 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 any rights, remedies,
obligations or liabilities under or by reason of this Agreement or the other
Loan Documents.


SECTION 9.12.  WAIVER
OF JURY TRIAL.  EACH PARTY HERETO
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS.  EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.12.


SECTION 9.13.  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 9.14.  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 (or
other electronic transmission pursuant to procedures approved by the
Administrative Agent) shall be as effective as delivery of a manually signed
original.


SECTION 9.15.  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 9.16.  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
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
(collectively, “New York Courts”), 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 


 


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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 party may
otherwise have to bring any action or proceeding relating to this Agreement or
any of the other Loan Documents in the courts of any jurisdiction, except that
each of the Loan Parties agrees that (a) it will not bring any such action
or proceeding in any court other than New York Courts (it being acknowledged
and agreed by the parties hereto that any other forum would be inconvenient and
inappropriate in view of the fact that more of the Lenders who would be
affected by any such action or proceeding have contacts with the State of New
York than any other jurisdiction), and (b) in any such action or
proceeding brought against any Loan Party in any other court, it will not
assert any cross-claim, counterclaim or setoff, or seek any other affirmative
relief, except to the extent that the failure to assert the same will preclude
such Loan Party from asserting or seeking the same in the New York Courts.


(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.


SECTION 9.17.  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 Borrowers and any Subsidiary furnished to it by or on
behalf of Holdings, the Borrowers or any Subsidiary (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 9.17 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 Borrowers 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 9.17), except: 
(A) to the extent necessary to comply with law or any legal process
or the requirements of any Governmental Authority, 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, (B) as part of normal 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 or auditors (so long as each such person shall have been instructed
to keep the same confidential in accordance with this Section 9.17),
(D) in order to enforce its rights under any Loan Document in a legal
proceeding, (E) to any pledge 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 9.17) and (F) to
any direct or indirect contractual counterparty in Swap Agreements or such
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contractual counterparty
or professional advisor to such contractual counterparty agrees to be bound by
the provisions of this Section 9.17).


SECTION
9.18.  Platform; Borrowers Materials.  The Borrowers hereby acknowledge that
(a) the Administrative Agent and/or the Co-Lead Arrangers will make
available to the Lenders and the Issuing Bank materials and/or information
provided by or on behalf of the Borrowers hereunder (collectively, “Borrowers
Materials”) by posting the Borrowers Materials on IntraLinks or another similar
electronic system (the “Platform”), and (b) certain of the Lenders
may be “public-side” Lenders (i.e., Lenders that do not wish to receive material
non-public information with respect to the Borrowers or their securities)
(each, a “Public Lender”).  The Borrowers
hereby agree that they will use commercially reasonable efforts to identify
that portion of the Borrowers Materials that may be distributed to the Public
Lenders and that (i) all such Borrowers Materials shall be clearly and
conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC”
shall appear prominently on the first page thereof, (ii) by marking
Borrowers Materials “PUBLIC,” the Borrowers shall be deemed to have authorized
the Administrative Agent, the Arranger, the Issuing Bank and the Lenders to
treat such Borrowers Materials as either publicly available information or not
material information (although it may be sensitive and proprietary) with
respect to the Borrowers or their securities for purposes of United States
Federal and state securities laws, (iii) all Borrowers Materials marked “PUBLIC”
are permitted to be made available through a portion of the Platform designated
“Public Investor;” and (iv) the Administrative Agent and the Co-Lead
Arrangers shall be entitled to treat any Borrowers Materials that are not
marked “PUBLIC” as being suitable only for posting on a portion of the Platform
not designated “Public Investor.”


SECTION
9.19.  Release of Liens and Guarantees.  In the event that any Loan Party conveys,
sells, leases, assigns, transfers or otherwise disposes of 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 a
transaction not prohibited by Section 6.05, the Administrative Agent 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 Borrowers and at the Borrowers’ 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 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.  In addition, the Administrative Agent agrees
to take such actions as are reasonably requested by Holdings or the Borrowers
and at the Borrowers’ expense to terminate the Liens and security interests
created by the Loan Documents when all the Obligations (other than contingent
indemnification Obligations and expense reimbursement claims to the extent no
claim therefore has been made) are paid in full and all Letters of Credit and
Commitments are terminated.  In addition,
immediately prior to the consummation of a Qualified IPO, the Guarantee
incurred by Holdings of the Obligations shall automatically terminate.  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.


 


148

















 


SECTION 9.20.  Judgment
Currency.  If, for the purposes of
obtaining judgment in any court, it is necessary to convert a sum due hereunder
or any other Loan Document in one currency into another currency, the rate of
exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the first currency with such
other currency on the Business Day preceding that on which final judgment is
given.  The obligation of the Borrowers
in respect of any such sum due from it to the Administrative Agent or the
Lenders hereunder or under the other Loan Documents shall, notwithstanding any
judgment in a currency (the “Judgment Currency”) other than that in
which such sum is denominated in accordance with the applicable provisions of
this Agreement (the “Agreement Currency”), be discharged only to the extent
that on the Business Day following receipt by the Administrative Agent of any
sum adjudged to be so due in the Judgment Currency, the Administrative Agent
may in accordance with normal banking procedures purchase the Agreement
Currency with the Judgment Currency.  If
the amount of the Agreement Currency so purchased is less than the sum
originally due to the Administrative Agent from the Borrowers in the Agreement
Currency, the Borrowers agree, as a separate obligation and notwithstanding any
such judgment, to indemnify the Administrative Agent or the person to whom such
obligation was owing against such loss. 
If the amount of the Agreement Currency so purchased is greater than the
sum originally due to the Administrative Agent in such currency, the Administrative
Agent agrees to return the amount of any excess to the Borrowers (or to any
other person who may be entitled thereto under applicable law).


SECTION 9.21.  USA
PATRIOT Act Notice.  Each Lender that
is subject to the Act (as hereinafter defined) and the Administrative Agent
(for itself and not on behalf of any Lender) hereby notifies the Borrowers that
pursuant to the requirements of the USA PATRIOT Act, it is required to obtain,
verify and record information that identifies each Loan Party, which
information includes the name and address of each Loan Party and other
information that will allow such Lender or the Administrative Agent, as
applicable, to identify each Loan Party in accordance with the USA PATRIOT Act.


[Signature Pages Follow]


 


149

















 


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.




	
  CHASE MERGER SUB, INC.

  
	
  By:

  	
  /s/ Michael
  Weiner

  
	
   

  	
  Name: 

  	
  Michael Weiner

  
	
   

  	
  Title:

  	
  President

  
	
  CHASE ACQUISITION I, INC.

  
	
  By:

  	
  /s/ Michael
  Weiner

  
	
   

  	
  Name: 

  	
  Michael Weiner

  
	
   

  	
  Title:

  	
  President

  
	
  REXNORD CORPORATION

  
	
  By:

  	
  /s/ Thomas
  Jansen

  
	
   

  	
  Name: 

  	
  Thomas Jansen

  
	
   

  	
  Title:

  	
  Executive Vice President and Chief Financial Officer

  






 


S-1

















 




	
  MERRILL
  LYNCH CAPITAL CORPORATION,

  
	
  as Administrative Agent
  and as a Lender

  
	
  By:

  	
  /s/ Justin
  Sendak

  
	
   

  	
  Name: 

  	
  Justin Sendak

  
	
   

  	
  Title:

  	
  Managing Director

  






 


S-2

















 




	
  CREDIT
  SUISSE SECURITIES (USA) LLC,

  
	
  as Syndication Agent
  and as a Lender

  
	
  By:

  	
  /s/ Richard B.
  Carey

  
	
   

  	
  Name: 

  	
  Richard B. Carey

  
	
   

  	
  Title:

  	
  Managing Director

  
	
  By:

  	
  /s/ Edward
  Neuburg

  
	
   

  	
  Name: 

  	
  Edward Neuburg

  
	
   

  	
  Title:

  	
  Director

  






 


S-3

















 




	
  BEAR,
  STEARNS & CO. INC.,

  
	
  as Co-Documentation
  Agent

  
	
  By:

  	
  /s/ Keith C.
  Barnish

  
	
   

  	
  Name: 

  	
  Keith C. Barnish

  
	
   

  	
  Title:

  	
  Senior Managing Director

  






 


S-4

















 




	
  LEHMAN
  BROTHERS INC.,

  
	
  as Co-Documentation
  Agent

  
	
  By:

  	
  /s/ Stephen
  Mehos

  
	
   

  	
  Name: 

  	
  Stephen Mehos

  
	
   

  	
  Title:

  	
  Managing Director

  






 


S-5

















 


Schedule 9.04


Processing and Recordation Fees


The
Administrative Agent will charge a processing and recordation fee (an “Assignment
Fee”) in the amount of $2,500 for each assignment; provided, however,
that in the event of two or more concurrent assignments to members of the same
Assignee Group (which may be effected by a suballocation of an assigned amount
among member of such Assignee Group) or two or more concurrent assignments by
members of the same Assignee Group to a single Assignee permitted hereunder (or
to an Assignee permitted hereunder and members of its Assignee Group), the
Assignment Fee will be $2,500 plus the amount set forth below:


	
  Transaction

  	
   

  	
  Assignment Fee

  	
   

  
	
  First four concurrent assignments or suballocations to members of an
  Assignee Group (or from members of an Assignee Group, as applicable)

  	
   

  	
  -0-

  	
   

  
	
  Each additional concurrent assignment or suballocation to a member of
  such Assignee Group (or from a member of such Assignee Group, as applicable)

  	
   

  	
  $

  	
  500

  	
   

  
					



Notwithstanding the
foregoing, the Administrative Agent may in its sole discretion elect to waive
such processing and recordation fee in connection with any assignment.