EX-10.1



 





Exhibit 10.1




CREDIT AGREEMENT




among




TOWN SPORTS INTERNATIONAL HOLDINGS, INC.,




TOWN SPORTS INTERNATIONAL, LLC,




VARIOUS LENDERS




and




DEUTSCHE BANK TRUST COMPANY AMERICAS,

as ADMINISTRATIVE AGENT



 




Dated as of February 27, 2007



 




DEUTSCHE BANK SECURITIES INC.,




as SOLE LEAD ARRANGER and BOOK MANAGER




 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	SECTION 1. Amount and Terms of Credit
	 	 	1	 
	 
	 	 	 	 
	1.01 The Commitments
	 	 	1	 
	1.02 Minimum Amount of Each Borrowing
	 	 	3	 
	1.03 Notice of Borrowing
	 	 	4	 
	1.04 Disbursement of Funds
	 	 	5	 
	1.05 Notes
	 	 	5	 
	1.06 Conversions
	 	 	6	 
	1.07 Pro Rata Borrowings
	 	 	7	 
	1.08 Interest
	 	 	7	 
	1.09 Interest Periods
	 	 	8	 
	1.10 Increased Costs, Illegality, etc.
	 	 	9	 
	1.11 Compensation
	 	 	11	 
	1.12 Change of Lending Office
	 	 	11	 
	1.13 Replacement of Lenders
	 	 	11	 
	1.14 Incremental Term Loan Commitments
	 	 	13	 
	 
	 	 	 	 
	SECTION 2. Letters of Credit
	 	 	16	 
	 
	 	 	 	 
	2.01 Letters of Credit
	 	 	16	 
	2.02 Maximum Letter of Credit Outstandings; Final Maturities
	 	 	16	 
	2.03 Letter of Credit Requests; Minimum Stated Amount
	 	 	17	 
	2.04 Letter of Credit Participations
	 	 	18	 
	2.05 Agreement to Repay Letter of Credit Drawings
	 	 	20	 
	2.06 Increased Costs
	 	 	20	 
	 
	 	 	 	 
	SECTION 3. Commitment Commission; Fees; Reductions of Commitment
	 	 	21	 
	 
	 	 	 	 
	3.01 Fees
	 	 	21	 
	3.02 Voluntary Termination of Unutilized Revolving Loan Commitments
	 	 	22	 
	3.03 Mandatory Reduction of Commitments
	 	 	23	 
	 
	 	 	 	 
	SECTION 4. Prepayments; Payments; Taxes
	 	 	23	 
	 
	 	 	 	 
	4.01 Voluntary Prepayments
	 	 	23	 
	4.02 Mandatory Repayments
	 	 	25	 
	4.03 Method and Place of Payment
	 	 	29	 
	4.04 Net Payments
	 	 	30	 
	 
	 	 	 	 
	SECTION 5. Conditions Precedent to Credit Events on the Initial Borrowing Date
	 	 	32	 
	 
	 	 	 	 
	5.01 Effective Date; Notes
	 	 	32	 
	5.02 Officer’s Certificate
	 	 	32	 
	5.03 Opinions of Counsel
	 	 	32	 






 









 






	 	 	 	 	 
	 	 	Page	 
	5.04 Corporate Documents; Proceedings; etc.
	 	 	32	 
	5.05 Shareholders’ Agreements; Management Agreements; Non-Compete Agreements; Tax
Sharing Agreements; and Existing Indebtedness Agreements
	 	 	33	 
	5.06 Existing Senior Notes Tender Offer/Consent Solicitation; Redemption and
Discharge of any remaining Existing Senior Notes
	 	 	34	 
	5.07 Refinancing
	 	 	35	 
	5.08 Adverse Change, Approvals
	 	 	35	 
	5.09 Litigation
	 	 	35	 
	5.10 Pledge Agreements
	 	 	36	 
	5.11 Security Agreement
	 	 	36	 
	5.12 Subsidiaries Guaranty
	 	 	37	 
	5.13
Financial Statements; Pro Forma Financials; Projections; etc
	 	 	37	 
	5.14 Solvency Certificate; Insurance Certificates
	 	 	37	 
	5.15 Fees, etc.
	 	 	38	 
	 
	 	 	 	 
	SECTION 6. Conditions Precedent to All Credit Events
	 	 	38	 
	 
	 	 	 	 
	6.01 No Default; Representations and Warranties
	 	 	38	 
	6.02 Notice of Borrowing; Letter of Credit Request
	 	 	38	 
	6.03 No Excess Cash
	 	 	38	 
	 
	 	 	 	 
	SECTION 7. Representations, Warranties and Agreements
	 	 	39	 
	 
	 	 	 	 
	7.01 Organizational Status
	 	 	39	 
	7.02 Power and Authority
	 	 	39	 
	7.03 No Violation
	 	 	40	 
	7.04 Approvals
	 	 	40	 
	7.05 Financial Statements; Financial Condition; Undisclosed Liabilities; Holdings’
Projections
	 	 	40	 
	7.06 Litigation
	 	 	42	 
	7.07 True and Complete Disclosure
	 	 	42	 
	7.08 Use of Proceeds; Margin Regulations
	 	 	42	 
	7.09 Tax Returns and Payments
	 	 	43	 
	7.10 Compliance with ERISA
	 	 	43	 
	7.11 The Security Documents
	 	 	44	 
	7.12 Properties
	 	 	45	 
	7.13 Capitalization
	 	 	45	 
	7.14 Subsidiaries
	 	 	45	 
	7.15 Compliance with Statutes, etc.
	 	 	45	 
	7.16 Investment Company Act
	 	 	46	 
	7.17 Environmental Matters
	 	 	46	 
	7.18 Labor Relations
	 	 	46	 
	7.19 Intellectual Property, etc.
	 	 	47	 
	7.20 Indebtedness
	 	 	47	 
	7.21 Insurance
	 	 	47	 
	7.22 Legal Names; Type of Organization (and Whether a Registered Organization);
Jurisdiction of Organization; etc.
	 	 	47	 






 









 






	 	 	 	 	 
	 	 	Page	 
	7.23 Subordination
	 	 	47	 
	 
	 	 	 	 
	SECTION 8. Affirmative Covenants
	 	 	47	 
	 
	 	 	 	 
	8.01 Information Covenants
	 	 	48	 
	(a)     Monthly Reports
	 	 	48	 
	(b)     Quarterly Financial Statements
	 	 	48	 
	(c)     Annual Financial Statements
	 	 	48	 
	(d)     Management Letters
	 	 	49	 
	(e)     Budgets
	 	 	49	 
	(f)     Officer’s Certificates
	 	 	49	 
	(g)     Notice of Default, Litigation and Material Adverse Effect
	 	 	50	 
	(h)     Other Reports and Filings
	 	 	50	 
	(i)     Environmental Matters
	 	 	50	 
	(j)     Other Information
	 	 	51	 
	8.02 Books, Records and Inspections; Annual Meetings
	 	 	51	 
	8.03 Maintenance of Property; Insurance
	 	 	51	 
	8.04 Existence; Franchises
	 	 	52	 
	8.05 Compliance with Statutes, etc.
	 	 	52	 
	8.06 Compliance with Environmental Laws
	 	 	52	 
	8.07 ERISA
	 	 	53	 
	8.08 End of Fiscal Years; Fiscal Quarters
	 	 	54	 
	8.09 Performance of Obligations
	 	 	55	 
	8.10 Payment of Taxes
	 	 	55	 
	8.11 Use of Proceeds
	 	 	55	 
	8.12 Additional Security; Further Assurances; etc.
	 	 	55	 
	8.13 Foreign Subsidiaries Security
	 	 	56	 
	8.14 Ownership of Subsidiaries; etc.
	 	 	57	 
	8.15 Maintenance of Corporate Separateness
	 	 	57	 
	8.16 Permitted Acquisitions
	 	 	57	 
	8.17 Cash on Hand at the Captive Insurance Company and the License Subsidiary
	 	 	59	 
	8.18 Existing Senior Notes Redemption
	 	 	59	 
	8.19 Contributions
	 	 	59	 
	 
	 	 	 	 
	SECTION 9. Negative Covenants
	 	 	59	 
	 
	 	 	 	 
	9.01 Liens
	 	 	59	 
	9.02 Consolidation, Merger, Purchase or Sale of Assets, etc.
	 	 	62	 
	9.03 Dividends
	 	 	64	 
	9.04 Indebtedness
	 	 	65	 
	9.05 Advances, Investments and Loans
	 	 	68	 
	9.06 Transactions with Affiliates
	 	 	70	 
	9.07 Maximum Total Leverage Ratio
	 	 	71	 
	9.08 Limitations on Payments of Existing Holdings Notes, Replacement Holdings Notes
and Borrower Notes; Modifications of Existing Holdings Note Documents, Replacement
Holdings Note Documents, Certificate of Incorporation, By-Laws and Certain Other
Agreements, etc.
	 	 	71	 






 









 






	 	 	 	 	 
	 	 	Page	 
	9.09 Limitation on Certain Restrictions on Subsidiaries
	 	 	72	 
	9.10 Limitation on Issuance of Capital Stock
	 	 	72	 
	9.11 Business, etc.
	 	 	73	 
	9.12 Limitation on Creation of Subsidiaries, etc.
	 	 	74	 
	9.13 Change of Legal Names; Type of Organization (and Whether a Registered
Organization); Jurisdiction of Organization etc.
	 	 	74	 
	9.14 Certain Deposit Accounts
	 	 	75	 
	 
	 	 	 	 
	SECTION 10. Events of Default
	 	 	75	 
	 
	 	 	 	 
	10.01 Payments
	 	 	75	 
	10.02 Representations, etc.
	 	 	75	 
	10.03 Covenants
	 	 	75	 
	10.04 Default Under Other Agreements
	 	 	75	 
	10.05 Bankruptcy, etc.
	 	 	76	 
	10.06 ERISA
	 	 	76	 
	10.07 Security Documents
	 	 	77	 
	10.08 Subsidiaries Guaranty
	 	 	77	 
	10.09 Judgments
	 	 	77	 
	10.10 Change of Control
	 	 	77	 
	 
	 	 	 	 
	SECTION 11. Definitions and Accounting Terms
	 	 	78	 
	 
	 	 	 	 
	11.01 Defined Terms
	 	 	78	 
	 
	 	 	 	 
	SECTION 12. The Administrative Agent
	 	 	107	 
	 
	 	 	 	 
	12.01 Appointment
	 	 	107	 
	12.02 Nature of Duties
	 	 	108	 
	12.03 Lack of Reliance on the Administrative Agent
	 	 	108	 
	12.04 Certain Rights of the Administrative Agent
	 	 	109	 
	12.05 Reliance
	 	 	109	 
	12.06 Indemnification
	 	 	109	 
	12.07 The Administrative Agent in its Individual Capacity
	 	 	110	 
	12.08 Holders
	 	 	110	 
	12.09 Resignation by the Administrative Agent
	 	 	110	 
	 
	 	 	 	 
	SECTION 13. Miscellaneous
	 	 	111	 
	 
	 	 	 	 
	13.01 Payment of Expenses, etc.
	 	 	111	 
	13.02 Right of Setoff
	 	 	112	 
	13.03 Notices
	 	 	113	 
	13.04 Benefit of Agreement; Assignments; Participations
	 	 	113	 
	13.05 No Waiver; Remedies Cumulative
	 	 	115	 
	13.06 Payments Pro Rata
	 	 	115	 
	13.07 Calculations; Computations
	 	 	116	 
	13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL
	 	 	116	 






 









 






	 	 	 	 	 
	 	 	Page	 
	13.09 Counterparts
	 	 	118	 
	13.10 Effectiveness
	 	 	118	 
	13.11 Headings Descriptive
	 	 	118	 
	13.12 Amendment or Waiver; etc.
	 	 	118	 
	13.13 Survival
	 	 	120	 
	13.14 Domicile of Loans
	 	 	120	 
	13.15 Register
	 	 	120	 
	13.16 Confidentiality
	 	 	121	 






SCHEDULES




	 	 	 
	SCHEDULE I

	 	Commitments
	SCHEDULE II

	 	Lender Addresses
	SCHEDULE III

	 	Existing Letters of Credit
	SCHEDULE IV

	 	Real Property
	SCHEDULE V

	 	Plans
	SCHEDULE VI

	 	Subsidiaries
	SCHEDULE VII

	 	Existing Indebtedness
	SCHEDULE VIII

	 	Insurance
	SCHEDULE IX

	 	Legal Names, Type of Organization (and Whether a Registered Organization); Jurisdiction of Organization; etc.
	SCHEDULE X

	 	Existing Liens
	SCHEDULE XI

	 	Existing Investments






EXHIBITS




	 	 	 
	EXHIBIT A-1

	 	Notice of Borrowing
	EXHIBIT A-2

	 	Notice of Conversion/Continuation
	EXHIBIT B-1

	 	Initial Term Note
	EXHIBIT B-2

	 	Revolving Note
	EXHIBIT B-3

	 	Swingline Note
	EXHIBIT B-4

	 	Incremental Term Note
	EXHIBIT C

	 	Letter of Credit Request
	EXHIBIT D

	 	Section 4.04(b)(ii) Certificate
	EXHIBIT E

	 	Opinion of Proskauer Rose LLP
	EXHIBIT F

	 	Officers’ Certificate
	EXHIBIT G-1

	 	Borrower/Sub Pledge Agreement
	EXHIBIT G-2

	 	Holdings Pledge Agreement
	EXHIBIT H

	 	Security Agreement
	EXHIBIT I

	 	Subsidiaries Guaranty
	EXHIBIT J

	 	Solvency Certificate
	EXHIBIT K

	 	Compliance Certificate
	EXHIBIT L

	 	Assignment and Assumption Agreement
	EXHIBIT M

	 	Joinder Agreement
	EXHIBIT N

	 	Subordination Provisions
	EXHIBIT O

	 	Incremental Term Loan Commitment Agreement






 









 






     CREDIT AGREEMENT, dated as of February 27, 2007, among TOWN SPORTS INTERNATIONAL HOLDINGS,
INC., a Delaware corporation (“Holdings”), TOWN SPORTS INTERNATIONAL, LLC, a New York limited
liability company (the “Borrower”), the Lenders party hereto from time to time, and
DEUTSCHE BANK TRUST COMPANY AMERICAS, as administrative agent (in such capacity, the
“Administrative Agent”). All capitalized terms used herein and defined in Section
11 are used herein as therein defined.



W I T N E S S E T H:




     WHEREAS, subject to and upon the terms and conditions set forth herein, the Lenders are
willing to make available to the Borrower the respective credit facilities provided for herein;



     NOW, THEREFORE, IT IS AGREED:



     SECTION 1. Amount and Terms of Credit.



     1.01 The Commitments. (a) Subject to and upon the terms and conditions set forth herein,
each Lender with an Initial Term Loan Commitment severally agrees to make a term loan or term loans
(each, an “Initial Term Loan” and, collectively, the “Initial Term Loans”) to the
Borrower, which Initial Term Loans (i) shall be incurred pursuant to a single drawing on the
Initial Borrowing Date, (ii) shall be denominated in Dollars, (iii) except as hereinafter provided,
shall, at the option of the Borrower, be incurred and maintained as, and/or converted into, Base
Rate Loans or Eurodollar Loans, provided that, (A) except as otherwise specifically
provided in Section 1.10(b), all Initial Term Loans comprising the same Borrowing shall at
all times be of the same Type, and (B) unless the Administrative Agent otherwise has agreed or has
determined that the Syndication Date has occurred (at which time this clause (B) shall no longer be
applicable), no more than one Borrowing of Initial Term Loans to be maintained as Eurodollar Loans
may be incurred prior to the 30th day after the Initial Borrowing Date, which Borrowing of
Eurodollar Loans may only have an Interest Period of one month and which may only be made within
five Business Days after the Initial Borrowing Date, and (iv) shall be made by each such Lender in
that aggregate principal amount which does not exceed the Initial Term Loan Commitment of such
Lender on the Initial Borrowing Date. Once repaid, Initial Term Loans incurred hereunder may not
be reborrowed.



     (b) Subject to and upon the terms and conditions set forth herein, each Lender with a
Revolving Loan Commitment severally agrees to make, at any time and from time to time on or after
the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, a revolving loan or
revolving loans (each a “Revolving Loan” and, collectively, the “Revolving Loans”)
to the Borrower, which Revolving Loans (i) shall be denominated in Dollars, (ii) shall, at the
option of the Borrower, be incurred and maintained as, and/or converted into, Base Rate
Loans or Eurodollar Loans, provided that, except as otherwise specifically provided in
Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of
the same Type, (iii) may be repaid and reborrowed in accordance with the provisions hereof, and
(iv) shall not exceed for any such Lender at any time outstanding that aggregate principal amount
which,



 









 




when added to the product of (x) such Lender’s RL Percentage and (y) the sum of (I) the
aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are
repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence
of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans
(exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving
Loan Commitment of such Lender at such time.




     (c) Subject to and upon the terms and conditions set forth herein, each Lender with an
Incremental Term Loan Commitment for a given Tranche of Incremental Term Loans severally agrees to
make a term loan or term loans (each, an “Incremental Term Loan” and, collectively, the
“Incremental Term Loans”) to the Borrower, which Incremental Term Loans (i) shall be
incurred pursuant to a single drawing of such Tranche on the applicable Incremental Term Loan
Borrowing Date, (ii) shall be denominated in Dollars, (iii) except as hereinafter provided, shall,
at the option of the Borrower, be incurred and maintained as, and/or converted into, Base Rate
Loans or Eurodollar Loans, provided that, except as otherwise specifically provided in Section
1.10(b), all Incremental Term Loans of a given Tranche made as part of the same Borrowing shall
at all times consist of Incremental Term Loans of the same Type, and (iv) shall not exceed for any
such Incremental Term Loan Lender at any time of any incurrence thereof, the Incremental Term Loan
Commitment of such Incremental Term Loan Lender for such Tranche on the respective Incremental Term
Loan Borrowing Date. Once repaid, Incremental Term Loans incurred hereunder may not be reborrowed.



     (d) Subject to and upon the terms and conditions set forth herein, the Swingline Lender agrees
to make, at any time and from time to time on or after the Initial Borrowing Date and prior to the
Swingline Expiry Date, a revolving loan or revolving loans (each a “Swingline Loan” and,
collectively, the “Swingline Loans”) to the Borrower, which Swingline Loans (i) shall be
incurred and maintained as Base Rate Loans, (ii) shall be denominated in Dollars, (iii) may be
repaid and reborrowed in accordance with the provisions hereof, (iv) shall not exceed in aggregate
principal amount at any time outstanding, when combined with the aggregate principal amount of all
Revolving Loans then outstanding and the aggregate amount of all Letter of Credit Outstandings
(exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Swingline Loans) at such time, an amount equal to the
Total Revolving Loan Commitment at such time, and (v) shall not exceed in aggregate principal
amount at any time outstanding the Maximum Swingline Amount. Notwithstanding anything to the
contrary contained in this Section 1.01(d), (1) the Swingline Lender shall not be obligated
to make any Swingline Loans at a time when a Lender Default exists with respect to an RL Lender
unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to
eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting
Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting
Lender’s or Defaulting Lenders’ RL Percentage of the outstanding Swingline Loans, and (2) the
Swingline Lender shall not make any Swingline Loan after it has received written notice from the
Borrower, any other
Credit Party or the Required Lenders stating that a Default or an Event of Default exists and
is continuing until such time as the Swingline Lender shall have received written notice (A) of
rescission of all such notices from the party or parties originally delivering such notice or
notices or (B) of the waiver of such Default or Event of Default by the Required Lenders.



-2-









 





     (e) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the
RL Lenders that the Swingline Lender’s outstanding Swingline Loans shall be funded with one or more
Borrowings of Revolving Loans (provided that such notice shall be deemed to have been
automatically given upon the occurrence of a Default or an Event of Default under Section
10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section
10), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each
such Borrowing, a “Mandatory Borrowing”) shall be made on the immediately succeeding
Business Day by all RL Lenders pro rata based on each such RL Lender’s RL
Percentage (determined before giving effect to any termination of the Revolving Loan Commitments
pursuant to the last paragraph of Section 10) and the proceeds thereof shall be applied
directly by the Swingline Lender to repay the Swingline Lender for such outstanding Swingline
Loans. Each RL Lender hereby irrevocably agrees to make Revolving Loans upon one Business Day’s
notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the
preceding sentence and on the date specified in writing by the Swingline Lender notwithstanding (i)
the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise
required hereunder, (ii) whether any conditions specified in Section 6 are then satisfied,
(iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory
Borrowing, and (v) the amount of the Total Revolving Loan Commitment at such time. In the event
that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above
(including, without limitation, as a result of the commencement of a proceeding under the
Bankruptcy Code with respect to the Borrower), then each RL Lender hereby agrees that it shall
forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but
adjusted for any payments received from the Borrower on or after such date and prior to such
purchase) from the Swingline Lender such participations in the outstanding Swingline Loans as shall
be necessary to cause the RL Lenders to share in such Swingline Loans ratably based upon their
respective RL Percentages (determined before giving effect to any termination of the Revolving Loan
Commitments pursuant to the last paragraph of Section 10), provided that (x) all
interest payable on the Swingline Loans shall be for the account of the Swingline Lender until the
date as of which the respective participation is required to be purchased and, to the extent
attributable to the purchased participation, shall be payable to the participant from and after
such date and (y) at the time any purchase of participations pursuant to this sentence is actually
made, the purchasing RL Lender shall be required to pay the Swingline Lender interest on the
principal amount of participation purchased for each day from and including the day upon which the
Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such
participation, at the overnight Federal Funds Rate for the first three days and at the interest
rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day
thereafter.



     1.02 Minimum Amount of Each Borrowing. The aggregate principal amount of each Borrowing of Loans under a respective Tranche shall
not be less than the Minimum Borrowing Amount applicable to such Tranche. More than one Borrowing
may occur on the same date, but at no time shall there be outstanding more than 15 Borrowings of
Eurodollar Loans in the aggregate for all Tranches of Loans (unless a greater number of such
Borrowings is agreed to by the Administrative Agent).



-3-









 





     1.03 Notice of Borrowing. (a) Whenever the Borrower desires to incur (x) Eurodollar
Loans hereunder, it shall give the Administrative Agent at the Notice Office at least three
Business Days’ prior notice of each Eurodollar Loan to be incurred hereunder or (y) Base Rate Loans
hereunder (excluding Swingline Loans and Revolving Loans made pursuant to a Mandatory Borrowing),
it shall give the Administrative Agent at the Notice Office at least one Business Day’s prior
notice of each Base Rate Loan to be incurred hereunder, provided that (in each case) any
such notice shall be deemed to have been given on a certain day only if given before 11:00 A.M.
(New York time) on such day. Each such notice (each a “Notice of Borrowing”), except as
otherwise expressly provided in Section 1.10, shall be irrevocable and shall be in writing,
or by telephone promptly confirmed in writing, in the form of Exhibit A-1, appropriately
completed to specify: (i) the aggregate principal amount of the Loans to be incurred pursuant to
such Borrowing, (ii) the date of such Borrowing (which shall be a Business Day), (iii) whether the
Loans being incurred pursuant to such Borrowing shall constitute Initial Term Loans, Revolving
Loans or Incremental Term Loans and, if Incremental Term Loans, the specific Tranche thereof, (iv)
whether the Loans being incurred pursuant to such Borrowing are to be initially maintained as Base
Rate Loans or, to the extent permitted hereunder, Eurodollar Loans and, if Eurodollar Loans, the
initial Interest Period to be applicable thereto, and (v) to the extent that the Existing Holdings
Note Indenture is in effect and the aggregate amount of the Revolving Obligations after giving
effect to such Borrowing would exceed $50,000,000, that the Borrower has confirmed that such
Borrowing is permitted to be incurred under, and does not violate the provisions of, the Existing
Holdings Note Indenture and the specific clause of the Existing Holdings Note Indenture that the
Borrower is relying on to incur such Borrowing. The Administrative Agent shall promptly give each
Lender which is required to make Loans of the Tranche specified in the respective Notice of
Borrowing, written notice of such proposed Borrowing, of such Lender’s proportionate share thereof
and of the other matters required by the immediately preceding sentence to be specified in the
Notice of Borrowing.



     (b) (i) Whenever the Borrower desires to incur Swingline Loans hereunder, the Borrower shall
give the Swingline Lender no later than 1:00 P.M. (New York time) on the date that a Swingline Loan
is to be incurred, written notice or telephonic notice promptly confirmed in writing of each
Swingline Loan to be incurred hereunder. Each such notice shall be irrevocable and specify in each
case (A) the date of Borrowing (which shall be a Business Day) and (B) the aggregate principal
amount of the Swingline Loans to be incurred pursuant to such Borrowing.



     (ii) Mandatory Borrowings shall be made upon the notice specified in Section 1.01(e),
with the Borrower irrevocably agreeing, by its incurrence of any Swingline Loan, to the making of
the Mandatory Borrowings as set forth in Section 1.01(e).



     (c) Without in any way limiting the obligation of the Borrower to confirm in writing any
telephonic notice of any Borrowing or prepayment of Loans, the Administrative Agent or the
Swingline Lender, as the case may be, may act without liability upon the basis of telephonic notice
of such Borrowing or prepayment, as the case may be, believed by the Administrative Agent or the
Swingline Lender, as the case may be, in good faith to be from an Authorized Officer of the
Borrower, prior to receipt of written confirmation. In each such case, the Borrower hereby waives
the right to dispute the Administrative Agent’s or the Swingline



-4-









 




Lender’s record of the terms of
such telephonic notice of such Borrowing or prepayment of Loans, as the case may be, absent
manifest error.




     1.04 Disbursement of Funds. No later than 1:00 P.M. (New York time) on the date
specified in each Notice of Borrowing (or (x) in the case of Swingline Loans, no later than 3:00
P.M. (New York time) on the date specified pursuant to Section 1.03(b)(i) or (y) in the
case of Mandatory Borrowings, no later than 1:00 P.M. (New York time) on the date specified in
Section 1.01(e)), each Lender with a Commitment of the respective Tranche will make
available its pro rata portion (determined in accordance with Section 1.07)
of each such Borrowing requested to be made on such date (or in the case of Swingline Loans, the
Swingline Lender will make available the full amount thereof). All such amounts will be made
available in Dollars and in immediately available funds at the Payment Office, and the
Administrative Agent will, except in the case of Revolving Loans made pursuant to a Mandatory
Borrowing, make available to the Borrower at the Payment Office the aggregate of the amounts so
made available by the Lenders. Unless the Administrative Agent shall have been notified by any
Lender prior to the date of Borrowing that such Lender does not intend to make available to the
Administrative Agent such Lender’s portion of any Borrowing to be made on such date, the
Administrative Agent may assume that such Lender has made such amount available to the
Administrative Agent on such date of Borrowing and the Administrative Agent may (but shall not be
obligated to), in reliance upon such assumption, make available to the Borrower a corresponding
amount. If such corresponding amount is not in fact made available to the Administrative Agent by
such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender. If such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent’s demand therefor, the Administrative Agent shall promptly notify the Borrower
and the Borrower shall immediately pay such corresponding amount to the Administrative Agent. The
Administrative Agent also shall be entitled to recover on demand from such Lender or the Borrower,
as the case may be, interest on such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative Agent to the Borrower until the date
such corresponding amount is recovered by the Administrative Agent, at a rate per annum equal to
(i) if recovered from such Lender, the overnight Federal Funds Rate for the first three days and at
the interest rate otherwise applicable to such Loans for each day thereafter and (ii) if recovered
from the Borrower, the rate of interest applicable to the respective Borrowing, as determined
pursuant to Section 1.08. Nothing in this Section 1.04 shall be deemed to relieve
any Lender from its obligation to make Loans hereunder or to prejudice any rights which the
Borrower may have against any Lender as a result of any failure by such Lender to make Loans
hereunder.



     1.05 Notes. (a) The Borrower’s obligations to pay the principal of, and interest on, the Loans made by each
Lender shall be evidenced in the Register maintained by the Administrative Agent pursuant to
Section 13.15 and shall, if requested by such Lender, also be evidenced (i) in the case of
Initial Term Loans, by a promissory note duly executed and delivered by the Borrower substantially
in the form of Exhibit B-1, with blanks appropriately completed in conformity herewith
(each an “Initial Term Note” and, collectively, the “Initial Term Notes”), (ii) in
the case of Revolving Loans, by a promissory note duly executed and delivered by the Borrower
substantially in the form of Exhibit B-2, with blanks appropriately completed in conformity
herewith (each a “Revolving Note” and, collectively, the “Revolving Notes”), (iii)
in the case of Swingline Loans, by a promissory note duly executed and delivered by the Borrower



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substantially in the form of Exhibit B-3, with blanks appropriately completed in conformity
herewith (the “Swingline Note”), and (iv) in the case of Incremental Term Loans, by a
promissory note duly executed and delivered by the Borrower substantially in the form of
Exhibit B-4, with blanks appropriately completed in conformity herewith (each, an
“Incremental Term Note” and, collectively, the “Incremental Term Notes”).




     (b) Each Lender will note on its internal records the amount of each Loan made by it and each
payment in respect thereof and prior to any transfer of any of its Notes will endorse on the
reverse side thereof the outstanding principal amount of Loans evidenced thereby. Failure to make
any such notation or any error in such notation shall not affect the Borrower’s obligations in
respect of such Loans.



     (c) Notwithstanding anything to the contrary contained above in this Section 1.05 or
elsewhere in this Agreement, Notes shall only be delivered to Lenders which at any time
specifically request the delivery of such Notes. No failure of any Lender to request or obtain a
Note evidencing its Loans to the Borrower shall affect or in any manner impair the obligations of
the Borrower to pay the Loans (and all related Obligations) incurred by the Borrower which would
otherwise be evidenced thereby in accordance with the requirements of this Agreement, and shall not
in any way affect the security or guaranties therefor provided pursuant to the various Credit
Documents. Any Lender which does not have a Note evidencing its outstanding Loans shall in no
event be required to make the notations otherwise described in preceding clause (b). At any time
when any Lender requests the delivery of a Note to evidence any of its Loans, the Borrower shall
(at its expense) promptly execute and deliver to the respective Lender the requested Note in the
appropriate amount or amounts to evidence such Loans.



     1.06 Conversions. The Borrower shall have the option to convert, on any Business Day,
all or a portion equal to at least the Minimum Borrowing Amount of the outstanding principal amount
of Loans (other than Swingline Loans which may not be converted pursuant to this Section
1.06) made pursuant to one or more Borrowings (so long as of the same Tranche) of one or more
Types of Loans into a Borrowing (of the same Tranche) of another Type of Loan, provided
that, (i) except as otherwise provided in Section 1.10(b), Eurodollar Loans may be
converted into Base Rate Loans only on the last day of an Interest Period applicable to the Loans
being converted and no such partial conversion of Eurodollar Loans shall reduce the outstanding
principal amount of such Eurodollar Loans made pursuant to a single Borrowing to less than the
Minimum Borrowing Amount applicable thereto, (ii) Base Rate Loans may not be converted into
Eurodollar Loans if (x) any Event of Default under Section 10.05 is in existence on
the proposed date of conversion or (y) any other Event of Default or any Specified Default is in
existence on the proposed date of the conversion and (in the case of this sub-clause (y) only) the
Required Lenders determine (in their sole discretion) that such conversion would be disadvantageous
to the Lenders at such time, (iii) unless the Administrative Agent otherwise has agreed or has
determined that the Syndication Date has occurred (at which time this clause (iii) shall no longer
be applicable), prior to the 30th day following the Initial Borrowing Date, conversions of Initial
Term Loans that are maintained as Base Rate Loans into Eurodollar Loans may only be made if any
such conversion is effective on the first day of the first Interest Period referred to in clause
(B) of Section 1.01(a)(iii) and so long as such conversion does not result in a greater
number of Borrowings of Initial Term Loans that are maintained as Eurodollar Loans prior to the
30th day after the Initial Borrowing Date than are permitted under
Section



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1.01(a)(iii),
and (iv) no conversion pursuant to this Section 1.06 shall result in a greater number of
Borrowings of Eurodollar Loans than is permitted under Section 1.02. Each such conversion
shall be effected by the Borrower by giving the Administrative Agent at the Notice Office prior to
11:00 A.M. (New York time) (x) at least three Business Days’ prior written notice (or telephonic
notice promptly confirmed in writing) in the case of a conversion into Eurodollar Loans and (y) at
least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing)
in the case of a conversion into Base Rate Loans (in each case, a “Notice of
Conversion/Continuation”) in the form of Exhibit A-2, appropriately completed to
specify the Loans to be so converted, the Borrowing or Borrowings pursuant to which such Loans were
incurred and, if to be converted into Eurodollar Loans, the Interest Period to be initially
applicable thereto. The Administrative Agent shall give each Lender prompt notice of any such
proposed conversion affecting any of its Loans.




     1.07 Pro Rata Borrowings. All Borrowings of Initial Term Loans, Incremental Term Loans and
Revolving Loans under this Agreement shall be incurred from the Lenders pro rata on
the basis of their Initial Term Loan Commitments, applicable Incremental Term Loan Commitments or
Revolving Loan Commitments, as the case may be, provided that all Mandatory Borrowings
shall be incurred from the RL Lenders pro rata on the basis of their RL
Percentages. It is understood that no Lender shall be responsible for any default by any other
Lender of its obligation to make Loans hereunder and that each Lender shall be obligated to make
the Loans provided to be made by it hereunder, regardless of the failure of any other Lender to
make its Loans hereunder.



     1.08 Interest. (a) The Borrower agrees to pay interest in respect of the unpaid principal
amount of each Base Rate Loan from the date of Borrowing thereof until the earlier of (i) the
maturity thereof (whether by acceleration or otherwise) and (ii) the conversion of such Base Rate
Loan to a Eurodollar Loan pursuant to Section 1.06 or 1.09, as applicable, at a
rate per annum which shall be equal to the sum of the relevant Applicable Margin plus the Base
Rate, each as in effect from time to time.



     (b) The Borrower agrees to pay interest in respect of the unpaid principal amount of each
Eurodollar Loan from the date of Borrowing thereof until the earlier of (i) the
maturity thereof (whether by acceleration or otherwise) and (ii) the conversion of such
Eurodollar Loan to a Base Rate Loan pursuant to Section 1.06, 1.09 or 1.10,
as applicable, at a rate per annum which shall, during each Interest Period applicable thereto, be
equal to the sum of the relevant Applicable Margin as in effect from time to time during such
Interest Period plus the Eurodollar Rate for such Interest Period.



     (c) Overdue principal and, to the extent permitted by law, overdue interest in respect of each
Loan shall, in each case, bear interest at a rate per annum equal to the greater of (x) the rate
which is 2% in excess of the rate then borne by such Loans and (y) the rate which is 2% in excess
of the rate otherwise applicable to Base Rate Loans of the respective Tranche from time to time,
and all other overdue amounts payable hereunder and under any other Credit Document shall bear
interest at a rate per annum equal to the rate which is 2% in excess of the rate applicable to
Revolving Loans that are maintained as Base Rate Loans from time to time. Interest that accrues
under this Section 1.08(c) shall be payable on demand.



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     (d) Accrued (and theretofore unpaid) interest shall be payable (i) in respect of each Base
Rate Loan, (x) quarterly in arrears on each Quarterly Payment Date, (y) on the date of any
repayment or prepayment in full of all outstanding Base Rate Loans of any Tranche, and (z) at
maturity (whether by acceleration or otherwise) and, after such maturity, on demand, and (ii) in
respect of each Eurodollar Loan, (x) on the last day of each Interest Period applicable thereto
and, in the case of an Interest Period in excess of three months, on each date occurring at three
month intervals after the first day of such Interest Period, (y) on the date of any repayment or
prepayment (on the amount repaid or prepaid), and (z) at maturity (whether by acceleration or
otherwise) and, after such maturity, on demand.



     (e) Upon each Interest Determination Date, the Administrative Agent shall determine the
Eurodollar Rate for each Interest Period applicable to the respective Eurodollar Loans and shall
promptly notify the Borrower and the Lenders thereof. Each such determination shall, absent
manifest error, be final and conclusive and binding on all parties hereto.



     1.09 Interest Periods. At the time the Borrower gives any Notice of Borrowing or Notice of
Conversion/Continuation in respect of the making of, or conversion into, any Eurodollar Loan (in
the case of the initial Interest Period applicable thereto) or prior to 11:00 A.M. (New York time)
on the third Business Day prior to the expiration of an Interest Period applicable to such
Eurodollar Loan (in the case of any subsequent Interest Period), the Borrower shall have the right
to elect the interest period (each, an “Interest Period”) applicable to such Eurodollar
Loan, which Interest Period shall, at the option of the Borrower (but otherwise subject to the
provisions of clause (B) of the proviso in Section 1.01(a)(iii)), be a one, two, three or
six month period, provided that (in each case):




     (i) all Eurodollar Loans comprising a Borrowing shall at all times have the same
Interest Period;




     (ii) the initial Interest Period for any Eurodollar Loan shall commence on the date of
Borrowing of such Eurodollar Loan (including the date of any conversion thereto from a Base
Rate Loan) and each Interest Period occurring thereafter in respect of such
Eurodollar Loan shall commence on the day on which the next preceding Interest Period
applicable thereto expires;




     (iii) if any Interest Period for a Eurodollar Loan begins on a day for which there is
no numerically corresponding day in the calendar month at the end of such Interest Period,
such Interest Period shall end on the last Business Day of such calendar month;




     (iv) if any Interest Period for a Eurodollar Loan would otherwise expire on a day which
is not a Business Day, such Interest Period shall expire on the next succeeding Business
Day; provided, however, that if any Interest Period for a Eurodollar Loan
would otherwise expire on a day which is not a Business Day but is a day of the month after
which no further Business Day occurs in such month, such Interest Period shall expire on the
next preceding Business Day;



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     (v) no Interest Period may be selected at any time if (x) an Event of Default under
Section 10.05 is then in existence or (y) any other Event of Default or any
Specified Default is then in existence and (in the case of this sub-clause (y) only) the
Required Lenders determine (in their sole discretion) that such conversion would be
disadvantageous to the Lenders at such time;




     (vi) no Interest Period in respect of any Borrowing of any Tranche of Loans shall be
selected which extends beyond the Maturity Date for such Tranche of Loans; and




     (vii) no Interest Period in respect of any Borrowing of any Tranche of Term Loans shall
be selected which extends beyond any date upon which a mandatory repayment of such Tranche
of Term Loans will be required to be made under Section 4.02(b) if the aggregate
principal amount of such Tranche of Term Loans which have Interest Periods which will expire
after such date will be in excess of the aggregate principal amount of such Tranche of Term
Loans then outstanding less the aggregate amount of such required repayment.


If by 11:00 A.M. (New York time) on the third Business Day prior to the expiration of any Interest
Period applicable to a Borrowing of Eurodollar Loans, the Borrower has failed to elect, or is not
permitted to elect, a new Interest Period to be applicable to such Eurodollar Loans as provided
above, the Borrower shall be deemed to have elected to convert such Eurodollar Loans into Base Rate
Loans effective as of the expiration date of such current Interest Period.




          1.10 Increased Costs, Illegality, etc. (a) In the event that any Lender shall have
determined (which determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto but, with respect to clause (i) below, may be made only by the
Administrative Agent):




     (i) on any Interest Determination Date that, by reason of any changes arising after the
date of this Agreement affecting the interbank Eurodollar market, adequate and fair means do
not exist for ascertaining the applicable interest rate on the basis provided for in the
definition of Eurodollar Rate; or




     (ii) at any time, that such Lender shall incur increased costs or reductions in the
amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x)
any change since the Effective Date in any applicable law or governmental rule, regulation,
order, guideline or request (whether or not having the force of law) or in the
interpretation or administration thereof and including the introduction of any new law or
governmental rule, regulation, order, guideline or request, such as, but not limited to:
(A) a change in the basis of taxation of payment to any Lender of the principal of or
interest on the Loans or the Notes or any other amounts payable hereunder (except for
changes in the rate of tax on, or determined by reference to, the net income or net profits
of such Lender pursuant to the laws of the jurisdiction in which it is organized or in which
its principal office or applicable lending office is located or any subdivision thereof or
therein) or (B) a change in official reserve requirements, but, in all events, excluding
reserves required under Regulation D to the extent included in the computation of the
Eurodollar Rate and/or (y) other circumstances arising since the Effective Date



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affecting
such Lender, the interbank Eurodollar market or the position of such Lender in such market;
or




     (iii) at any time, that the making or continuance of any Eurodollar Loan has been made
(x) unlawful by any law or governmental rule, regulation or order, (y) impossible by
compliance by any Lender in good faith with any governmental request (whether or not having
force of law) or (z) impracticable as a result of a contingency occurring after the
Effective Date which materially and adversely affects the interbank Eurodollar market;


then, and in any such event, such Lender (or the Administrative Agent, in the case of clause (i)
above) shall promptly give notice (by telephone promptly confirmed in writing) to the Borrower and,
except in the case of clause (i) above, to the Administrative Agent of such determination (which
notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter
(x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time
as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving
rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or
Notice of Conversion/Continuation given by the Borrower with respect to Eurodollar Loans which have
not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower,
(y) in the case of clause (ii) above, the Borrower agrees to pay to such Lender, upon such Lender’s
written request therefor, such additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender in its sole discretion shall
determine) as shall be required to compensate such Lender for such increased costs or reductions in
amounts received or receivable hereunder (a written notice as to the additional amounts owed to
such Lender, showing in reasonable detail the basis for the calculation thereof, submitted to the
Borrower by such Lender shall, absent manifest error, be final and conclusive and binding on all
the parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the
actions specified in Section 1.10(b) as promptly as possible and, in any event, within the
time period required by law.




     (b) At any time that any Eurodollar Loan is affected by the circumstances described in
Section 1.10(a)(ii), the Borrower may, and in the case of a Eurodollar Loan affected by the
circumstances described in Section 1.10(a)(iii), the Borrower shall, either (x) if the
affected Eurodollar Loan is then being made initially or pursuant to a conversion, cancel such
Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same
date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to
Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then
outstanding, upon at least three Business Days’ written notice to the Administrative Agent, require
the affected Lender to convert such Eurodollar Loan into a Base Rate Loan, provided that if
more than one Lender is affected at any time, then all affected Lenders must be treated the same
pursuant to this Section 1.10(b).



     (c) If any Lender determines that after the Effective Date the introduction or effectiveness
of or any change in any applicable law or governmental rule, regulation, order, guideline,
directive or request (whether or not having the force of law) concerning capital adequacy, or any
change in interpretation or administration thereof by the NAIC or any governmental authority,
central bank or comparable agency, will have the effect of increasing the



-10-









 




amount of capital
required or expected to be maintained by such Lender or any corporation controlling such Lender
based on the existence of such Lender’s Commitments hereunder or its obligations hereunder, then
the Borrower agrees to pay to such Lender, upon its written demand therefor, such additional
amounts as shall be required to compensate such Lender or such other corporation for the increased
cost to such Lender or such other corporation or the reduction in the rate of return to such Lender
or such other corporation as a result of such increase of capital. In determining such additional
amounts, each Lender will act reasonably and in good faith and will use averaging and attribution
methods which are reasonable, provided that such Lender’s determination of compensation
owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and
binding on all the parties hereto. Each Lender, upon determining that any additional amounts will
be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the
Borrower, which notice shall show in reasonable detail the basis for calculation of such additional
amounts.




     1.11 Compensation. The Borrower agrees to compensate each Lender, upon its written request
(which request shall set forth in reasonable detail the basis for requesting such compensation),
for all reasonable losses, expenses and liabilities (including, without limitation, any loss,
expense or liability incurred by reason of the liquidation or reemployment of deposits or other
funds required by such Lender to fund its Eurodollar Loans but excluding loss of anticipated
profits) which such Lender may sustain: (i) if for any reason (other than a default by such Lender
or the Administrative Agent) a Borrowing of, or conversion from or into, Eurodollar Loans does not
occur on a date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation
(whether or not withdrawn by the Borrower or deemed withdrawn pursuant to Section 1.10(a));
(ii) if any prepayment or repayment (including any prepayment or repayment made pursuant to
Section 4.01, Section 4.02 or as a result of an acceleration of the Loans pursuant
to Section 10) or conversion of any of its Eurodollar Loans, or assignment of any of its
Eurodollar Loans pursuant to Section 1.13, occurs on a date which is not the last day of an
Interest Period with respect thereto; (iii) if any prepayment of any of its Eurodollar Loans is not
made on any date specified in a notice of prepayment given by the Borrower; or (iv) as a
consequence of (x) any other default by the Borrower to repay Eurodollar Loans when required
by the terms of this Agreement or any Note held by such Lender or (y) any election made pursuant to
Section 1.10(b).



     1.12 Change of Lending Office. Each Lender agrees that upon the occurrence of any event
giving rise to the operation of Section 1.10(a)(ii) or (iii), Section
1.10(c), Section 2.06 or Section 4.04 with respect to such Lender, it will, if
requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such
Lender) to designate another lending office for any Loans or Letters of Credit affected by such
event, provided that such designation is made on such terms that such Lender and its
lending office suffer no economic, legal or regulatory disadvantage, with the object of avoiding
the consequence of the event giving rise to the operation of such Section. Nothing in this
Section 1.12 shall affect or postpone any of the obligations of the Borrower or the right
of any Lender provided in Sections 1.10, 2.06 and 4.04.



     1.13 Replacement of Lenders. (x) If any Lender becomes a Defaulting Lender or otherwise
defaults in its obligations to make Loans, (y) upon the occurrence of an event giving rise to the
operation of Section 1.10(a)(ii) or (iii), Section 1.10(c), Section
2.06 or Section 4.04



-11-









 




with respect to any Lender which results in such Lender charging
to the Borrower increased costs in excess of those being generally charged by the other Lenders or
(z) in the case of a refusal by a Lender to consent to certain proposed changes, waivers,
discharges or terminations with respect to this Agreement which have been approved by the Required
Lenders as (and to the extent) provided in Section 13.12(b), the Borrower shall have the
right, if no Default or Event of Default then exists (or, in the case of preceding clause (z), will
exist immediately after giving effect to such replacement), to replace such Lender (the
“Replaced Lender”) with one or more other Eligible Transferees, none of whom shall
constitute a Defaulting Lender at the time of such replacement (collectively, the “Replacement
Lender”) and each of whom shall be required to be reasonably acceptable to the Administrative
Agent or, in the case of a replacement as provided in Section 13.12(b) where the consent of
the respective Lender is required with respect to less than all Tranches of its Loans or
Commitments, to replace the Commitments and/or outstanding Loans of such Lender in respect of each
Tranche where the consent of such Lender would otherwise be individually required, with identical
Commitments and/or Loans of the respective Tranche provided by the Replacement Lender,
provided that:





     (a) at the time of any replacement pursuant to this Section 1.13, the
Replacement Lender shall enter into one or more Assignment and Assumption Agreements
pursuant to Section 13.04(b) (and with all fees payable pursuant to said Section
13.04(b) to be paid by the Replacement Lender) pursuant to which the Replacement Lender
shall acquire all of the Commitments and outstanding Loans (or, in the case of the
replacement of only (a) the Revolving Loan Commitment, the Revolving Loan Commitment and
outstanding Revolving Loans and participations in Letter of Credit Outstandings and/or (b)
the outstanding Term Loans of a Tranche or Tranches, the outstanding Term Loans of such
Tranche or Tranches with respect to which such Lender is being replaced) of, and in each
case (except for the replacement of only the outstanding Term Loans of the respective
Lender) all participations in Letters of Credit by, the
Replaced Lender and, in connection therewith, shall pay to (x) the Replaced Lender in
respect thereof an amount equal to the sum of (I) an amount equal to the principal of, and
all accrued and unpaid interest on, all outstanding Loans of the respective Replaced Lender
under each Tranche with respect to which such Replaced Lender is being replaced, (II) an
amount equal to all Unpaid Drawings (unless there are no Unpaid Drawings with respect to the
Tranche being replaced) that have been funded by (and not reimbursed to) such Replaced
Lender, together with all then accrued and unpaid interest with respect thereto at such time
and (III) an amount equal to all accrued, but theretofore unpaid, Fees owing to the Replaced
Lender (but only with respect to the relevant Tranche, in the case of the replacement of
less than all Tranches of Loans then held by the respective Replaced Lender) pursuant to
Section 3.01, (y) except in the case of the replacement of only the outstanding Term
Loans of a Replaced Lender, each Issuing Lender an amount equal to such Replaced Lender’s RL
Percentage of any Unpaid Drawing relating to Letters of Credit issued by such Issuing Lender
(which at such time remains an Unpaid Drawing) to the extent such amount was not theretofore
funded by such Replaced Lender to such Issuing Lender, together with all then accrued and
unpaid interest with respect thereto at such time, and (z) in the case of any replacement of
Revolving Loan Commitments, the Swingline Lender an amount equal to such Replaced Lender’s
RL Percentage of any Mandatory Borrowing to the extent such amount was not



-12-









 






theretofore
funded by such Replaced Lender to the Swingline Lender, together with all then accrued and
unpaid interest thereon at such time; and




     (b) all obligations of the Borrower due and owing to the Replaced Lender at such time
(other than those (x) specifically described in clause (a) above in respect of which the
assignment purchase price has been, or is concurrently being, paid, but including all
amounts, if any, owing under Section 1.11 or (y) relating to any Tranche of Loans
and/or Commitments of the respective Replaced Lender which will remain outstanding after
giving effect to the respective replacement) shall be paid in full to such Replaced Lender
concurrently with such replacement.



     Upon the execution of the respective Assignment and Assumption Agreement, the payment of
amounts referred to in clauses (a) and (b) above and, if so requested by the Replacement Lender,
delivery to the Replacement Lender of the appropriate Note or Notes executed by the Borrower, (x)
the Replacement Lender shall become a Lender hereunder and, unless the respective Replaced Lender
continues to have outstanding Term Loans and/or a Revolving Loan Commitment hereunder, the Replaced
Lender shall cease to constitute a Lender hereunder and, except with respect to indemnification
provisions under this Agreement (including, without limitation, Sections 1.10,
1.11, 2.06, 4.04, 12.06 and 13.01), which shall survive as
to such Replaced Lender and (y) except in the case of the replacement of only outstanding Term
Loans pursuant to this Section 1.13, the RL Percentages of the Lenders shall be
automatically adjusted at such time to give effect to such replacement.



     1.14 Incremental Term Loan Commitments. (a) The Borrower shall have the right, with the
consent of, and in coordination with, the Administrative Agent as to all of the matters set forth
below in this Section 1.14, but without requiring the consent of any of the Lenders, to
request at any time after the Initial Borrowing
Date and prior to February 27, 2012, that one or more Lenders (and/or one or more other Persons
which are Eligible Transferees and which will become Lenders) provide Incremental Term Loan
Commitments to the Borrower and, subject to the terms and conditions contained in this Agreement
and in the respective Incremental Term Loan Commitment Agreement, make Incremental Term Loans
pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to
provide an Incremental Term Loan Commitment as a result of any such request by the Borrower, and
until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental
Term Loan Commitment and executed and delivered to the Administrative Agent and the Borrower an
Incremental Term Loan Commitment Agreement as provided in clause (b) of this Section 1.14,
such Lender shall not be obligated to fund any Incremental Term Loans, (ii) any Lender (including
any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan
Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan
Commitments, and all Incremental Term Loans to be made pursuant thereto, shall be denominated in
Dollars, (iv) the amount of each Tranche of Incremental Term Loan Commitments (whether constituting
a new Tranche of Incremental Term Loans or being added to (and thereafter constituting a part of) a
then outstanding Tranche of Term Loans) shall be in a minimum aggregate amount for all Lenders
which provide an Incremental Term Loan Commitment under such Tranche of Incremental Term Loans
(including Eligible Transferees who will become Lenders) of at least $25,000,000 and in integral
multiples of $5,000,000 in excess thereof (or such other integral multiple as may be acceptable to
the Administrative



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Agent), (v) the aggregate amount of all Incremental Term Loan Commitments
provided pursuant to this Section 1.14 and the aggregate principal amount of all
Incremental Term Loans to be made pursuant thereto shall not exceed $100,000,000, (vi) the up-front
fees and, if applicable, any unutilized commitment fees and/or other fees, payable to each
Incremental Term Loan Lender in respect of each Incremental Term Loan Commitment shall be
separately agreed to by the Borrower, the Administrative Agent and each such Incremental Term Loan
Lender, (vii) each Tranche of Incremental Term Loans shall (A) have an Incremental Term Loan
Maturity Date of no earlier than the Initial Term Loan Maturity Date, (B) have a Weighted Average
Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the
Initial Term Loans and (C) be subject to the Applicable Margins as are set forth in the Incremental
Term Loan Commitment Agreement governing such Tranche of Incremental Term Loans, (viii) the
proceeds of all Incremental Term Loans shall be used only for the purposes permitted by Section
7.08(c), (ix) each Incremental Term Loan Commitment Agreement shall specifically designate the
Tranche or Tranches of the Incremental Term Loan Commitments being provided thereunder (which
Tranche shall be a new Tranche (i.e., not the same as the Initial Term Loans or any other
then existing Tranche of Term Loans) unless the requirements of Section 1.14(c) are
satisfied), (x) all Incremental Term Loans (and all interest, fees and other amounts payable
thereon) shall be Obligations under this Agreement and the other applicable Credit Documents and
shall be secured by the Security Documents, and guaranteed under the Subsidiaries Guaranty, on a
pari passu basis with all other Obligations secured by the Security Documents and guaranteed under
the Subsidiaries Guaranty, and (xi) each Lender (including any Eligible Transferee who will become
a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term
Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth
in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term
Loan Commitment Agreement as provided in Section 1.01(c) and such Incremental Term Loans
shall
thereafter be deemed to be Incremental Term Loans under such Tranche for all purposes of this
Agreement and the other applicable Credit Documents.




     (b) At the time of the provision of Incremental Term Loan Commitments pursuant to this
Section 1.14, the Borrower, the Administrative Agent and each such Lender or other Eligible
Transferee which agrees to provide an Incremental Term Loan Commitment (each, an “Incremental Term
Loan Lender”) shall execute and deliver to the Administrative Agent an Incremental Term Loan
Commitment Agreement, with the effectiveness of the Incremental Term Loan Commitment provided
therein (and the making of the respective Incremental Term Loans thereunder) to occur on the date
set forth in such Incremental Term Loan Commitment Agreement, which date in any event shall be no
earlier than the date on which (w) all fees required to be paid in connection therewith at the time
of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front
or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all
Incremental Term Loan Commitment Requirements are satisfied, (y) all other conditions set forth in
this Section 1.14 shall have been satisfied, and (z) all other conditions precedent that
may be set forth in such Incremental Term Loan Commitment Agreement shall have been satisfied. The
Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental
Term Loan Commitment Agreement, and at such time, (i) Schedule I shall be deemed modified
to reflect the Incremental Term Loan Commitments of the affected Lenders and (ii) to the extent
requested by any Incremental Term Loan Lender, Incremental Term Notes will be issued, at the
Borrower’s



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expense, to such Incremental Term Loan Lender in conformity with the requirements of
Section 1.05.




     (c) Notwithstanding anything to the contrary contained above in this Section 1.14, the
Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or Incremental Term
Loan Lenders, as the case may be, pursuant to each Incremental Term Loan Commitment Agreement shall
constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant
to this Agreement (with a designation which may be made in letters (i.e., A, B, C, etc.), numbers
(1, 2, 3, etc.) or a combination thereof (i.e., A-1, A-2, A-3, B-1, B-2, B-3, C-1, C-2, C-3, etc.),
provided that, with the consent of the Administrative Agent, the parties to a given Incremental
Term Loan Commitment Agreement may specify therein that the respective Incremental Term Loans made
pursuant thereto shall constitute part of, and be added to, a then outstanding Tranche of Term
Loans so long as the following requirements are satisfied:




     (i) the Incremental Term Loans to be made pursuant to such Incremental Term Loan
Commitment Agreement shall have the same Maturity Date and shall have the same Applicable
Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being
added;




     (ii) the new Incremental Term Loans to be made pursuant to such Incremental Term Loan
Commitment Agreement shall have the same Scheduled Term Loan Repayment Dates as then remain
with respect to the Tranche of Term Loans to which such new Incremental Term Loans are being
added (with the amount of each Scheduled Term Loan Repayment applicable to such new
Incremental Term Loans to be the same (on a proportionate basis) as is theretofore
applicable to the Tranche of Term Loans to
which such new Incremental Term Loans are being added, thereby increasing the amount of
each then remaining Scheduled Term Loan Repayments of the respective Tranche of Term Loans
proportionately); and




     (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding
anything to the contrary set forth in Section 1.09, such new Incremental Term Loans
shall be added to (and form part of) each Borrowing of outstanding Term Loans of the
respective Tranche on a pro rata basis (based on the relative sizes of the various
outstanding Borrowings), so that each Lender will participate proportionately in each then
outstanding Borrowing of Term Loans of the respective Tranche.



     To the extent the provisions of preceding clause (iii) require that Lenders making new
Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of
Eurodollar Loans of the respective Tranche of Term Loans, it is acknowledged that the effect
thereof may result in such new Incremental Term Loans having short Interest Periods (i.e.,
an Interest Period that began during an Interest Period then applicable to outstanding Eurodollar
Loans of the respective Tranche and which will end on the last day of such Interest Period). In
connection therewith, the Borrower hereby agrees to compensate the Lenders making the new
Incremental Term Loans of the respective Tranche for funding Eurodollar Loans during an existing
Interest Period on such basis as may be agreed by the



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Borrower and the respective Lender or Lenders
as may be provided in the respective Incremental Term Loan Commitment Agreement




     SECTION 2. Letters of Credit.



     2.01 Letters of Credit. (a) Subject to and upon the terms and conditions set forth
herein, the Borrower may request that an Issuing Lender issue, at any time and from time to time on
and after the Initial Borrowing Date and prior to the 60th day prior to the Revolving Loan Maturity
Date, for the account of the Borrower and for the benefit of (x) any holder (or any trustee, agent
or other similar representative for any such holders) of L/C Supportable Obligations, an
irrevocable standby letter of credit, in a form customarily used by such Issuing Lender or in such
other form as is reasonably acceptable to such Issuing Lender, and (y) sellers of goods to the
Borrower or any of its Subsidiaries, an irrevocable trade letter of credit, in a form customarily
used by such Issuing Lender or in such other form as has been approved by such Issuing Lender (each
such letter of credit, a “Letter of Credit” and, collectively, the “Letters of
Credit”). All Letters of Credit shall be denominated in Dollars and shall be issued on a sight
basis only.



     (b) Subject to and upon the terms and conditions set forth herein, each Issuing Lender agrees
that it will, at any time and from time to time on and after the Initial Borrowing Date and prior
to the 60th day prior to the Revolving Loan Maturity Date, following its receipt of the respective
Letter of Credit Request, issue for account of the Borrower, one or more Letters of Credit as are
permitted to remain outstanding hereunder without giving rise to a Default or an
Event of Default, provided that no Issuing Lender shall be under any obligation to
issue any Letter of Credit of the types described above if at the time of such issuance:




     (i) any order, judgment or decree of any governmental authority or arbitrator shall
purport by its terms to enjoin or restrain such Issuing Lender from issuing such Letter of
Credit or any requirement of law applicable to such Issuing Lender or any request or
directive (whether or not having the force of law) from any governmental authority with
jurisdiction over such Issuing Lender shall prohibit, or request that such Issuing Lender
refrain from, the issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon such Issuing Lender with respect to such Letter of Credit
any restriction or reserve or capital requirement (for which such Issuing Lender is not
otherwise compensated hereunder) not in effect with respect to such Issuing Lender on the
date hereof, or any unreimbursed loss, cost or expense which was not applicable or in effect
with respect to such Issuing Lender as of the date hereof and which such Issuing Lender
reasonably and in good faith deems material to it; or




     (ii) such Issuing Lender shall have received from the Borrower, any other Credit Party
or the Required Lenders prior to the issuance of such Letter of Credit notice of the type
described in the second sentence of Section 2.03(b).



     2.02 Maximum Letter of Credit Outstandings; Final Maturities. (a) Notwithstanding anything to the contrary contained in this Agreement, (i) no Letter of Credit
shall be issued the Stated Amount of which, when added to the Letter of Credit Outstandings
(exclusive of Unpaid Drawings which are repaid on the date of, and prior to the issuance of, the



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respective Letter of Credit) at such time would exceed either (x) $25,000,000 or (y) when added to
the sum of (I) the aggregate principal amount of all Revolving Loans then outstanding and (II) the
aggregate principal amount of all Swingline Loans then outstanding, an amount equal to the Total
Revolving Loan Commitment at such time, and (ii) each Letter of Credit shall by its terms terminate
(x) in the case of standby Letters of Credit, on or before the earlier of (A) the date which occurs
12 months after the date of the issuance thereof (although any such standby Letter of Credit shall
be extendible for successive periods of up to 12 months, but, in each case, not beyond the fifth
Business Day prior to the Revolving Loan Maturity Date, on terms acceptable to the respective
Issuing Lender) and (B) five Business Days prior to the Revolving Loan Maturity Date, and (y) in
the case of trade Letters of Credit, on or before the earlier of (A) the date which occurs 180 days
after the date of issuance thereof and (B) 30 days prior to the Revolving Loan Maturity Date.




     (b) Schedule III contains a description of all letters of credit issued by each
Issuing Lender pursuant to the Existing Credit Agreement and which are to remain outstanding on the
Initial Borrowing Date and sets forth, with respect to each such letter of credit, (i) the name of
the issuing lender, (ii) the letter of credit number, (iii) the stated amount, (iv) the name of the
beneficiary and (v) the expiry date. Each such letter of credit, including any extension thereof,
shall constitute a “Letter of Credit” under, as defined in, and for all purposes of, this
Agreement and shall be deemed issued on the Initial Borrowing Date.



     2.03 Letter of Credit Requests; Minimum Stated Amount. (a) Whenever the Borrower desires
that a Letter of Credit be issued for its account, the Borrower shall give the Administrative Agent
and the respective Issuing Lender at least four Business Days’ (or such shorter period as is
acceptable to such Issuing Lender) written notice thereof (including by way of facsimile). Each
notice shall be in the form of Exhibit C, appropriately completed (each a “Letter of
Credit Request”).



     (b) The making of each Letter of Credit Request shall be deemed to be a representation and
warranty by the Borrower to the Lenders that such Letter of Credit may be issued in accordance
with, and will not violate the requirements of, Section 2.02. Unless the respective
Issuing Lender has received notice from the Borrower, any other Credit Party or the Required
Lenders before it issues a Letter of Credit that one or more of the conditions specified in
Section 5 or 6 are not then satisfied, or that the issuance of such Letter of
Credit would violate Section 2.02, then such Issuing Lender shall, subject to the terms and
conditions of this Agreement, issue the requested Letter of Credit for the account of the Borrower
in accordance with such Issuing Lender’s usual and customary practices. Upon the issuance of or
modification or amendment to any standby Letter of Credit, each Issuing Lender shall promptly
notify the Borrower and the Administrative Agent, in writing of such issuance, modification or
amendment and such notice shall be accompanied by a copy of such Letter of Credit or the respective
modification or amendment thereto, as the case may be. Promptly after receipt of such notice the
Administrative Agent shall notify the Participants, in writing, of such issuance, modification or
amendment. On the first Business Day of each week, each Issuing Lender shall furnish the
Administrative Agent with a written report (which may be transmitted via facsimile) of the daily
aggregate outstandings of trade Letters of Credit issued by such Issuing Lender for the immediately
preceding week. Notwithstanding anything to the contrary contained in this Agreement, in the event
that a Lender Default exists with respect to an RL Lender, no Issuing



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Lender shall be required to
issue any Letter of Credit unless such Issuing Lender has entered into arrangements satisfactory to
it and the Borrower to eliminate such Issuing Lender’s risk with respect to the participation in
Letters of Credit by the Defaulting Lender or Lenders, including by cash collateralizing such
Defaulting Lender’s or Lenders’ RL Percentage of the Letter of Credit Outstandings.




     (c) The initial Stated Amount of each Letter of Credit shall not be less than $20,000 or such
lesser amount as is acceptable to the respective Issuing Lender.



     2.04 Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing
Lender of any Letter of Credit, such Issuing Lender shall be deemed to have sold and transferred to
each RL Lender, and each such RL Lender (in its capacity under this Section 2.04, a
“Participant”) shall be deemed irrevocably and unconditionally to have purchased and
received from such Issuing Lender, without recourse or warranty, an undivided interest and
participation, to the extent of such Participant’s RL Percentage, in such Letter of Credit, each
drawing or payment made thereunder and the obligations of the Borrower under this Agreement with
respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the
Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 1.13 or
13.04(b), it is hereby agreed that, with
respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be
an automatic adjustment to the participations pursuant to this Section 2.04 to reflect the
new RL Percentages of the assignor and assignee Lender, as the case may be.



     (b) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any
obligation relative to the other Lenders other than to confirm that any documents required to be
delivered under such Letter of Credit appear to have been delivered and that they appear to
substantially comply on their face with the requirements of such Letter of Credit. Any action
taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit
issued by it shall not create for such Issuing Lender any resulting liability to the Borrower, any
other Credit Party, any Lender or any other Person unless such action is taken or omitted to be
taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined
by a court of competent jurisdiction in a final and non-appealable decision).



     (c) In the event that any Issuing Lender makes any payment under any Letter of Credit issued
by it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender
pursuant to Section 2.05(a), such Issuing Lender shall promptly notify the Administrative
Agent, which shall promptly notify each Participant of such failure, and each Participant shall
promptly and unconditionally pay to such Issuing Lender the amount of such Participant’s RL
Percentage of such unreimbursed payment in Dollars and in same day funds. If the Administrative
Agent so notifies, on or prior to 1:00 P.M. (New York time) on any Business Day, any Participant
required to fund a payment under a Letter of Credit, such Participant shall make available to the
respective Issuing Lender in Dollars such Participant’s RL Percentage of the amount of such payment
on such Business Day (or to the extent that the Administrative Agent so notifies such Participant
after 1:00 P.M. (New York time) on such Business Day, on the immediately succeeding Business Day,
in either case) in same day funds. If and to the extent such Participant shall not have so made
its RL Percentage of the amount of such payment



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available to the respective Issuing Lender, such
Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with
interest thereon, for each day from such date until the date such amount is paid to such Issuing
Lender at the overnight Federal Funds Rate for the first three days and at the interest rate
applicable to Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The
failure of any Participant to make available to an Issuing Lender its RL Percentage of any payment
under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of
its obligation hereunder to make available to such Issuing Lender its RL Percentage of any payment
under any Letter of Credit on the date required, as specified above, but no Participant shall be
responsible for the failure of any other Participant to make available to such Issuing Lender such
other Participant’s RL Percentage of any such payment.




     (d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it
has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender
shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars and in same
day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate
amount originally funded by such Participant to the aggregate amount funded by all Participants) of
the principal amount of such reimbursement obligation and interest thereon accruing after the
purchase of the respective participations.



     (e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant
copies of any standby Letter of Credit issued by it and such other documentation as may reasonably
be requested by such Participant.



     (f) The obligations of the Participants to make payments to each Issuing Lender with respect
to Letters of Credit shall be irrevocable and not subject to any qualification or exception
whatsoever (except in the case of an Issuing Lender’s gross negligence or willful misconduct (as
determined by a court of competent jurisdiction in a final and non-appealable decision)) and shall
be made in accordance with the terms and conditions of this Agreement under all circumstances,
including, without limitation, any of the following circumstances:




     (i) any lack of validity or enforceability of this Agreement or any of the other Credit
Documents;




     (ii) the existence of any claim, setoff, defense or other right which Holdings or any
of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit,
any transferee of any Letter of Credit (or any Person for whom any such transferee may be
acting), the Administrative Agent, any Participant, or any other Person, whether in
connection with this Agreement, any Letter of Credit, the transactions contemplated herein
or any unrelated transactions (including any underlying transaction between Holdings or any
Subsidiary of Holdings and the beneficiary named in any such Letter of Credit);




     (iii) any draft, certificate or any other document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;



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     (iv) the surrender or impairment of any security for the performance or observance of
any of the terms of any of the Credit Documents; or




     (v) the occurrence of any Default or Event of Default.



     2.05 Agreement to Repay Letter of Credit Drawings. (a) The Borrower agrees to reimburse
each Issuing Lender, by making payment to the Administrative Agent in immediately available funds
at the Payment Office, for any payment or disbursement made by such Issuing Lender under any Letter
of Credit issued by it (each such amount, so paid until reimbursed by the Borrower, an “Unpaid
Drawing”), not later than one Business Day following receipt by the Borrower of notice of such
payment or disbursement (provided that no such notice shall be required to be given if a
Default or an Event of Default under Section 10.05 shall have occurred and be continuing,
in which case the Unpaid Drawing shall be due and payable immediately without presentment, demand,
protest or notice of any kind (all of which are hereby waived by the Borrower)), with interest on
the amount so paid or disbursed by such Issuing Lender, to the extent not reimbursed prior to 1:00
P.M. (New York time) on the date of such payment or disbursement, from and including the date paid
or disbursed to but excluding the date such Issuing Lender was reimbursed by the Borrower therefor
at a rate per annum equal to the Base Rate in effect from time to time plus the Applicable Margin
as in effect from time to time for Revolving Loans that are maintained as Base Rate Loans;
provided,
however, to the extent such amounts are not reimbursed prior to 1:00 P.M. (New York time)
on the third Business Day following the receipt by the Borrower of notice of such payment or
disbursement or following the occurrence of a Default or an Event of Default under Section
10.05, interest shall thereafter accrue on the amounts so paid or disbursed by such Issuing
Lender (and until reimbursed by the Borrower) at a rate per annum equal to the Base Rate as in
effect from time to time plus the Applicable Margin for Revolving Loans that are maintained as Base
Rate Loans as in effect from time to time plus 2%, with such interest to be payable on demand.
Each Issuing Lender shall give the Borrower prompt written notice of each Drawing under any Letter
of Credit issued by it, provided that the failure to give any such notice shall in no way
affect, impair or diminish the Borrower’s obligations hereunder.



     (b) The obligations of the Borrower under this Section 2.05 to reimburse each Issuing
Lender with respect to drafts, demands and other presentations for payment under Letters of Credit
issued by it (each, a “Drawing”) (including, in each case, interest thereon) shall be
absolute and unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which Holdings or any Subsidiary of Holdings may have or have
had against any Lender (including in its capacity as an Issuing Lender or as a Participant),
including, without limitation, any defense based upon the failure of any drawing under a Letter of
Credit to conform to the terms of the Letter of Credit or any nonapplication or misapplication by
the beneficiary of the proceeds of such Drawing; provided, however, that the
Borrower shall not be obligated to reimburse any Issuing Lender for any wrongful payment made by
such Issuing Lender under a Letter of Credit issued by it as a result of acts or omissions
constituting willful misconduct or gross negligence on the part of such Issuing Lender (as
determined by a court of competent jurisdiction in a final and non-appealable decision).



     2.06 Increased Costs. If at any time after the Effective Date, the introduction or
effectiveness of or any change in any applicable law, rule, regulation, order, guideline or request



-20-









 




or in the interpretation or administration thereof by the NAIC or any governmental authority
charged with the interpretation or administration thereof, or compliance by any Issuing Lender or
any Participant with any request or directive by the NAIC or by any such governmental authority
(whether or not having the force of law), shall either (i) impose, modify or make applicable any
reserve, deposit, capital adequacy or similar requirement against letters of credit issued by any
Issuing Lender or participated in by any Participant, or (ii) impose on any Issuing Lender or any
Participant any other conditions relating, directly or indirectly, to this Agreement or any Letter
of Credit; and the result of any of the foregoing is to increase the cost to any Issuing Lender or
any Participant of issuing, maintaining or participating in any Letter of Credit, or reduce the
amount of any sum received or receivable by any Issuing Lender or any Participant hereunder or
reduce the rate of return on its capital with respect to Letters of Credit (except for changes in
the rate of tax on, or determined by reference to, the net income or net profits of such Issuing
Lender or such Participant pursuant to the laws of the jurisdiction in which it is organized or in
which its principal office or applicable lending office is located or any subdivision thereof or
therein), then, upon the delivery of the certificate referred to below to the Borrower by any
Issuing Lender or any Participant (a copy of which certificate shall be sent by such Issuing Lender
or such Participant to the Administrative Agent), the Borrower agrees to pay to such Issuing Lender
or such Participant such additional amount or amounts as will compensate such Issuing Lender or
such Participant for such increased cost or reduction in the amount receivable or reduction on the
rate of return on its capital. Any Issuing Lender or any Participant, upon determining that any
additional amounts will be payable pursuant to this Section 2.06, will give prompt written
notice thereof to the Borrower, which notice shall include a certificate submitted to the Borrower
by such Issuing Lender or such Participant (a copy of which certificate shall be sent by such
Issuing Lender or such Participant to the Administrative Agent), setting forth in reasonable detail
the basis for the calculation of such additional amount or amounts necessary to compensate such
Issuing Lender or such Participant. The certificate required to be delivered pursuant to this
Section 2.06 shall, absent manifest error, be final and conclusive and binding on the
Borrower.




     SECTION 3. Commitment Commission; Fees; Reductions of Commitment.



     3.01 Fees. (a) The Borrower agrees to pay to the Administrative Agent for distribution to
each Non-Defaulting RL Lender a commitment commission (the “Commitment Commission”) for the
period from and including the Effective Date to and including the Revolving Loan Maturity Date (or
such earlier date on which the Total Revolving Loan Commitment has been terminated) computed at a
rate per annum equal to the Applicable Commitment Commission Percentage of the Unutilized Revolving
Loan Commitment of such Non-Defaulting RL Lender as in effect from time to time. Accrued
Commitment Commission shall be due and payable quarterly in arrears on each Quarterly Payment Date
and on the date upon which the Total Revolving Loan Commitment is terminated.



     (b) The Borrower agrees to pay to the Administrative Agent for distribution to each RL Lender
(based on such RL Lender’s respective RL Percentage) a fee in respect of each Letter of Credit (the
“Letter of Credit Fee”) for the period from and including the date of issuance of such
Letter of Credit to and including the date of termination or expiration of such Letter of Credit,
computed at a rate per annum equal to the Applicable Margin as in effect from time to time during
such period with respect to Revolving Loans that are maintained as Eurodollar Loans on the daily
Stated Amount of each such Letter of Credit. Accrued Letter of



-21-









 




Credit Fees shall be due and
payable quarterly in arrears on each Quarterly Payment Date and on the first day on or after the
termination of the Total Revolving Loan Commitment upon which no Letters of Credit remain
outstanding.




     (c) The Borrower agrees to pay to each Issuing Lender, for its own account, a facing fee in
respect of each Letter of Credit issued by it (the “Facing Fee”) for the period from and
including the date of issuance of such Letter of Credit to and including the date of termination or
expiration of such Letter of Credit, computed at a rate per annum equal to 1/4 of 1% on the daily
Stated Amount of such Letter of Credit, provided that in any event the minimum amount of
Facing Fees payable in any twelve-month period for each Letter of Credit shall be not less than
$500; it being agreed that, on the day of issuance of any Letter of Credit and on each anniversary
thereof prior to the termination or expiration of such Letter of Credit, if $500 will exceed the
amount of Facing Fees that will accrue with respect to such Letter of Credit for the immediately
succeeding twelve-month period, the full $500 shall be payable on the date of
issuance of such Letter of Credit and on each such anniversary thereof. Except as otherwise
provided in the proviso to the immediately preceding sentence, accrued Facing Fees shall be due and
payable quarterly in arrears on each Quarterly Payment Date and upon the first day on or after the
termination of the Total Revolving Loan Commitment upon which no Letters of Credit remain
outstanding.



     (d) The Borrower agrees to pay to each Issuing Lender, for its own account, upon each payment
under, issuance of, or amendment to, any Letter of Credit issued by it, such amount as shall at the
time of such event be the administrative charge and the reasonable expenses which such Issuing
Lender is generally imposing in connection with such occurrence with respect to letters of credit.



     (e) The Borrower agrees to pay to the Administrative Agent for distribution to the respective
Incremental Term Loan Lenders such fees as may be agreed to as provided in Section 1.14(a).



     (f) The Borrower agrees to pay to the Administrative Agent and its Affiliates such fees as may
be agreed to in writing from time to time by Holdings and/or any of its Subsidiaries and the
Administrative Agent and such Affiliates.



     3.02 Voluntary Termination of Unutilized Revolving Loan Commitments. (a) Upon at least
three Business Days’ prior written notice to the Administrative Agent at the Notice Office (which
notice the Administrative Agent shall promptly transmit to each of the Lenders), the Borrower shall
have the right, at any time or from time to time, without premium or penalty to terminate the Total
Unutilized Revolving Loan Commitment in whole, or reduce it in part, pursuant to this Section
3.02(a), in an integral multiple of $1,000,000 in the case of partial reductions to the Total
Unutilized Revolving Loan Commitment, provided that each such reduction shall apply
proportionately to permanently reduce the Revolving Loan Commitment of each RL Lender.



     (b) In the event of a refusal by a Lender to consent to certain proposed changes, waivers,
discharges or terminations with respect to this Agreement which have been approved by the Required
Lenders as (and to the extent) provided in Section 13.12(b), the



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Borrower shall have the
right, subject to obtaining the consents required by Section 13.12(b), upon five Business
Days’ prior written notice to the Administrative Agent at the Notice Office (which notice the
Administrative Agent shall promptly transmit to each of the Lenders), to terminate the entire
Revolving Loan Commitment of such Lender, so long as all Loans, together with accrued and unpaid
interest, Fees and all other amounts, owing to such Lender (including all amounts, if any, owing
pursuant to Section 1.11 but excluding the payment of amounts owing in respect of Loans of
any Tranche maintained by such Lender, if such Loans are not being repaid pursuant to Section
13.12(b)) are repaid concurrently with the effectiveness of such termination pursuant to
Section 4.01(b) (at which time Schedule I shall be deemed modified to reflect such
changed amounts) and such Lender’s RL Percentage of all outstanding Letters of Credit is cash
collateralized in a manner satisfactory to the Administrative Agent and the respective Issuing
Lenders, and at such time, unless the respective Lender continues to have outstanding Term Loans
hereunder, such Lender shall no longer constitute a “Lender” for
purposes of this Agreement, except with respect to indemnifications under this Agreement
(including, without limitation, Sections 1.10, 1.11, 2.06, 4.04,
12.06 and 13.01), which shall survive as to such repaid Lender.




     3.03 Mandatory Reduction of Commitments. (a) The Total Commitment (and the Commitment of
each Lender) shall terminate in its entirety on March 15, 2007, unless the Initial Borrowing Date
has occurred on or prior to such date.



     (b) In addition to any other mandatory commitment reductions pursuant to this Section
3.03, the Total Initial Term Loan Commitment (and the Initial Term Loan Commitment of each
Lender) shall terminate in its entirety on the Initial Borrowing Date (after giving effect to the
incurrence of Initial Term Loans on such date).



     (c) In addition to any other mandatory commitment reductions pursuant to this Section
3.03, the Total Incremental Term Loan Commitment under a given Tranche shall terminate in its
entirety on the Incremental Term Loan Borrowing Date for such Tranche of Incremental Term Loans
(after giving effect to the incurrence of Incremental Term Loans of such Tranche on such date).



     (d) In addition to any other mandatory commitment reductions pursuant to this Section
3.03, the Total Revolving Loan Commitment (and the Revolving Loan Commitment of each RL Lender)
shall terminate in its entirety upon the earlier of (i) the Revolving Loan Maturity Date and (ii)
unless the Required Lenders otherwise agree in writing, on the date on which a Change of Control
occurs.



     SECTION 4. Prepayments; Payments; Taxes.



     4.01 Voluntary Prepayments. (a) The Borrower shall have the right to prepay the
Loans, without premium or penalty, in whole or in part at any time and from time to time on the
following terms and conditions: (i) the Borrower shall give the Administrative Agent prior to
11:00 A.M. (New York time) at the Notice Office (x) at least one Business Day’s prior written
notice (or telephonic notice promptly confirmed in writing) of its intent to prepay Base Rate Loans
(or same day notice in the case of a prepayment of Swingline Loans) and (y) at least two Business
Days’ prior written notice (or telephonic notice promptly confirmed in writing) of its



-23-









 




intent to
prepay Eurodollar Loans, which notice (in each case) shall specify (I) whether Initial Term Loans,
Incremental Term Loans under a given Tranche, Revolving Loans or Swingline Loans shall be prepaid,
(II) the amount of such prepayment, (III) the Types of Loans to be prepaid, and (IV) in the case of
Eurodollar Loans, the specific Borrowing or Borrowings pursuant to which such Eurodollar Loans were
made, and which notice the Administrative Agent shall, except in the case of a prepayment of
Swingline Loans, promptly transmit to each of the Lenders; (ii) (x) each partial prepayment of Term
Loans pursuant to this Section 4.01(a) shall be in an aggregate principal amount of at
least $500,000 (or such lesser amount as is acceptable to the
Administrative Agent), (y) each partial prepayment of Revolving Loans pursuant to this
Section 4.01(a) shall be in an aggregate principal amount of at least $500,000 (or such
lesser amount as is acceptable to the Administrative Agent) and (z) each partial prepayment of
Swingline Loans pursuant to this Section 4.01(a) shall be in an aggregate principal amount
of at least $50,000 (or such lesser amount as is acceptable to the Administrative Agent),
provided that if any partial prepayment of Eurodollar Loans made pursuant to any Borrowing
shall reduce the outstanding principal amount of Eurodollar Loans made pursuant to such Borrowing
to an amount less than the Minimum Borrowing Amount applicable thereto, then such Borrowing may not
be continued as a Borrowing of Eurodollar Loans (and same shall automatically be converted into a
Borrowing of Base Rate Loans) and any election of an Interest Period with respect thereto given by
the Borrower shall have no force or effect; (iii) each prepayment pursuant to this Section
4.01(a) in respect of any Loans made pursuant to a Borrowing shall be applied pro
rata among such Loans, provided that at the Borrower’s election in connection with
any prepayment of Revolving Loans pursuant to this Section 4.01(a), such prepayment shall
not, so long as no Default or Event of Default then exists, be applied to any Revolving Loan of a
Defaulting Lender; (iv) each prepayment in respect of any Tranche of Term Loans made pursuant to
this Section 4.01(a) shall be allocated among each of the outstanding Tranches of Term
Loans on a pro rata basis, with each Tranche of Term Loans to be allocated its Term
Loan Percentage of the amount of such prepayment; and (v) each prepayment of any Tranche of Term
Loans pursuant to this Section 4.01(a) shall reduce the then remaining Scheduled Term Loan
Repayments of such Tranche of Term Loans on a pro rata basis (based upon the then
remaining principal amount of each such Scheduled Term Loan Repayment of such Tranche of Term Loans
after giving effect to all prior reductions thereto).




     (b) In the event of a refusal by a Lender to consent to certain proposed changes, waivers,
discharges or terminations with respect to this Agreement which have been approved by the Required
Lenders as (and to the extent) provided in Section 13.12(b), the Borrower shall have the
right, upon five Business Days’ prior written notice to the Administrative Agent at the Notice
Office (which notice the Administrative Agent shall promptly transmit to each of the Lenders), to
repay all Loans of such Lender, together with accrued and unpaid interest, Fees, and all other
amounts (including all amounts, if any, owing under Section 1.11) then owing to such Lender
(or owing to such Lender with respect to each Tranche which gave rise to the need to obtain such
Lender’s individual consent) in accordance with, and subject to the requirements of, said
Section 13.12(b), so long as (A) in the case of the repayment of Revolving Loans of any
Lender pursuant to this clause (b), (x) the Revolving Loan Commitment of such Lender is terminated
concurrently with such repayment pursuant to Section 3.02(b) (at which time Schedule
I shall be deemed modified to reflect the changed Revolving Loan Commitments), and (y) such
Lender’s RL Percentage of all outstanding Letters of Credit is cash collateralized in a manner
satisfactory to the Administrative Agent and the respective



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Issuing Lenders and (B) the consents,
if any, required by Section 13.12(b) in connection with the repayment pursuant to this
clause (b) shall have been obtained. Each prepayment of any Tranche of Term Loans pursuant to this
Section 4.01(b) shall reduce the then remaining Scheduled Term Loan Repayments of such
Tranche of Term Loans on a pro rata basis (based upon the then remaining principal
amount of each such Scheduled Term Loan Repayment of such Tranche of Term Loans after giving effect
to all prior reductions thereto).




     4.02 Mandatory Repayments . (a) On any day on which the sum of (I) the aggregate outstanding principal amount of all
Revolving Loans (after giving effect to all other repayments thereof on such date), (II) the
aggregate outstanding principal amount of all Swingline Loans (after giving effect to all other
repayments thereof on such date) and (III) the aggregate amount of all Letter of Credit
Outstandings exceeds the Total Revolving Loan Commitment at such time, the Borrower shall prepay on
such day the principal of Swingline Loans and, after all Swingline Loans have been repaid in full
or if no Swingline Loans are outstanding, Revolving Loans in an amount equal to such excess. If,
after giving effect to the prepayment of all outstanding Swingline Loans and Revolving Loans, the
aggregate amount of the Letter of Credit Outstandings exceeds the Total Revolving Loan Commitment
at such time, the Borrower shall pay to the Administrative Agent at the Payment Office on such day
an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum
amount equal to the Letter of Credit Outstandings at such time), such cash and/or Cash Equivalents
to be held as security for all Obligations of the Borrower to the Issuing Lenders and the Lenders
hereunder in a cash collateral account to be established and controlled by the Administrative
Agent.



     (b) (i) In addition to any other mandatory repayments pursuant to this Section 4.02,
on each date set forth below (each, a “Scheduled Initial Term Loan Repayment Date”), the
Borrower shall be required to repay that principal amount of Initial Term Loans, to the extent then
outstanding, as is set forth opposite each such date below (each such repayment, as the same may be
(x) reduced as provided in Section 4.01(a), 4.01(b) or 4.02(g) or (y)
increased as provided in Section 1.14(c), a “Scheduled Initial Term Loan
Repayment”):



	 	 	 	 	 
	Scheduled Initial Term Loan Repayment Date	 	Amount
	The last Business Day of the Borrower’s fiscal quarter ending June 30, 2007
	 	$	462,500	 
	The last Business Day of the Borrower’s fiscal quarter ending September 30, 2007
	 	$	462,500	 
	The last Business Day of the Borrower’s fiscal quarter ending December 31, 2007
	 	$	462,500	 
	The last Business Day of the Borrower’s fiscal quarter ending March 31, 2008
	 	$	462,500	 
	The last Business Day of the Borrower’s fiscal quarter ending June 30, 2008
	 	$	462,500	 






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	Scheduled Initial Term Loan Repayment Date	 	Amount
	The last Business Day of the Borrower’s fiscal quarter ending September 30, 2008
	 	$	462,500	 
	The last Business Day of the Borrower’s fiscal quarter ending December 31, 2008
	 	$	462,500	 
	The last Business Day of the Borrower’s fiscal quarter ending March 31, 2009
	 	$	462,500	 
	The last Business Day of the Borrower’s fiscal quarter ending June 30, 2009
	 	$	462,500	 
	The last Business Day of the Borrower’s fiscal quarter ending September 30, 2009
	 	$	462,500	 
	The last Business Day of the Borrower’s fiscal quarter ending December 31, 2009
	 	$	462,500	 
	The last Business Day of the Borrower’s fiscal quarter ending March 31, 2010
	 	$	462,500	 
	The last Business Day of the Borrower’s fiscal quarter ending June 30, 2010
	 	$	462,500	 
	The last Business Day of the Borrower’s fiscal quarter ending September 30, 2010
	 	$	462,500	 
	The last Business Day of the Borrower’s fiscal quarter ending December 31, 2010
	 	$	462,500	 
	The last Business Day of the Borrower’s fiscal quarter ending March 31, 2011
	 	$	462,500	 
	The last Business Day of the Borrower’s fiscal quarter ending June 30, 2011
	 	$	462,500	 
	The last Business Day of the Borrower’s fiscal quarter ending September 30, 2011
	 	$	462,500	 
	The last Business Day of the Borrower’s fiscal quarter ending December 31, 2011
	 	$	462,500	 
	The last Business Day of the Borrower’s fiscal quarter ending March 31, 2012
	 	$	462,500	 






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	Scheduled Initial Term Loan Repayment Date	 	Amount
	The last Business Day of the Borrower’s fiscal quarter ending June 30, 2012
	 	$	462,500	 
	The last Business Day of the Borrower’s fiscal quarter ending September 30, 2012
	 	$	462,500	 
	The last Business Day of the Borrower’s fiscal quarter ending December 31, 2012
	 	$	462,500	 
	The last Business Day of the Borrower’s fiscal quarter ending March 31, 2013
	 	$	462,500	 
	The last Business Day of the Borrower’s fiscal quarter ending June 30, 2013
	 	$	462,500	 
	The last Business Day of the Borrower’s fiscal quarter ending September 30, 2013
	 	$	462,500	 
	The last Business Day of the Borrower’s fiscal quarter ending December 31, 2013
	 	$	462,500	 
	Initial Term Loan Maturity Date
	 	$	172,512,500	 






     (ii) In addition to any other mandatory repayments pursuant to this Section 4.02, the
Borrower shall be required to make, with respect to each Tranche of Incremental Term Loans, to the
extent then outstanding, scheduled amortization payments of such Tranche of Incremental Term Loans
on the dates and in the principal amounts set forth in the respective Incremental Term Loan
Commitment Agreement (each such date, a “Scheduled Incremental Term Loan Repayment Date”,
and each such repayment, as the same may be (x) reduced as provided in Section 4.01(a),
4.01(b) or 4.02(g) or (y) increased as provided in Section 1.14(c), a
“Scheduled Incremental Term Loan Repayment”).



     (c) In addition to any other mandatory repayments pursuant to this Section 4.02, on
each date on or after the Initial Borrowing Date upon which Holdings or any of its Subsidiaries
receives any cash proceeds from any issuance or incurrence by Holdings or any of its Subsidiaries
of Indebtedness for borrowed money (other than Indebtedness for borrowed money permitted to be
incurred pursuant to Section 9.04 as in effect on the Effective Date), an amount equal to
100% of the Net Debt Proceeds of the respective incurrence of Indebtedness shall be applied on such
date as a mandatory repayment in accordance with the requirements of Sections 4.02(g) and
(h).



-27-









 





     (d) In addition to any other mandatory repayments pursuant to this Section 4.02, on
each date on or after the Initial Borrowing Date upon which Holdings or any of its Subsidiaries
receives any cash proceeds from any Asset Sale, an amount equal to 100% of the Net Sale Proceeds
therefrom shall be applied on such date as a mandatory repayment in accordance with the
requirements of Sections 4.02(g) and (h); provided, however, that
with respect to no more than $25,000,000 in the aggregate of such Net Sale Proceeds received by
Holdings or its Subsidiaries in any fiscal year of Holdings, such Net Sale Proceeds shall not be
required to be so applied on such date so long as no Default or Event of Default then exists and
such Net Sale Proceeds shall be used to purchase assets (other than working capital) used or to be
used in the businesses permitted pursuant to Section 9.11 within 359 days following the
date of such Asset Sale; and provided further, however, that if all or any portion of such
Net Sale Proceeds not required to be so applied as provided above in this Section 4.02(d)
are not so reinvested within such 359-day period (or such earlier date, if any, as Holdings or the
relevant Subsidiary determines not to reinvest the Net Sale Proceeds from such Asset Sale as set
forth above), such remaining portion shall be applied on the last day of such period (or such
earlier date, as the case may be) as provided above in this Section 4.02(d) without regard
to the preceding proviso.



     (e) In addition to any other mandatory repayments pursuant to this Section 4.02, on
each Excess Cash Flow Payment Date, an amount equal to remainder (if positive) of (A) the
Applicable Excess Cash Flow Repayment Percentage of the Excess Cash Flow for the related Excess
Cash Flow Payment Period minus (B) the aggregate amount of principal repayments of Loans to
the extent (and only to the extent) that such repayments were made as a voluntary prepayment
pursuant to Section 4.01 with internally generated funds (but in a case of a voluntary
prepayment of Revolving Loans or Swingline Loans, only to the extent accompanied by a voluntary
reduction to the Total Revolving Loan Commitment in an amount equal to such prepayment) during the
relevant Excess Cash Flow Payment Period, shall be applied as a mandatory repayment in accordance
with the requirements of Sections 4.02(g) and (h).



     (f) In addition to any other mandatory repayments pursuant to this Section 4.02,
within 30 days following each date on or after the Initial Borrowing Date upon which Holdings or
any of its Subsidiaries receives any cash proceeds from any Recovery Event (other than Recovery
Events where the Net Recovery Event Proceeds therefrom do not exceed $100,000), an amount equal to
100% of the Net Recovery Event Proceeds from such Recovery Event shall be applied within such 30
day period as a mandatory repayment in accordance with the requirements of Sections 4.02(g)
and (h); provided, however that, so long as no Default or Event of Default
then exists and such Net Recovery Event Proceeds do not exceed $15,000,000, such Net Recovery Event
Proceeds shall not be required to be so applied within such 30 day
period to the extent that Holdings has delivered a certificate to the Administrative Agent
within such 30-day period stating that such Net Recovery Event Proceeds shall be used to replace or
restore any properties or assets in respect of which such Net Recovery Event Proceeds were paid
within 180 days following the date of the receipt of such Net Recovery Event Proceeds (which
certificate shall set forth the estimates of the Net Recovery Event Proceeds to be so expended);
and provided further, that (i) if the amount of such Net Recovery Event Proceeds exceeds
$15,000,000, then the entire amount of such Net Recovery Event Proceeds and not just the portion in
excess of $15,000,000 shall be applied as provided above in this Section 4.02(f) without
regard to the immediately preceding proviso and (ii) if all or any portion of such Net



-28-









 




Recovery
Event Proceeds not required to be so applied pursuant to the preceding proviso are not so used
within 180 days after the date of the receipt of such Net Recovery Event Proceeds (or such earlier
date, if any, as Holdings or the relevant Subsidiary determines not to reinvest the Net Recovery
Event Proceeds relating to such Recovery Event as set forth above), such remaining portion shall be
applied on the last day of such period (or such earlier date, as the case may be) as provided above
in this Section 4.02(f) without regard to the immediately preceding proviso.




     (g) Each amount required to be applied pursuant to Sections 4.02(c), (d),
(e) and (f) in accordance with this Section 4.02(g) shall be applied to
repay the outstanding principal amount of Term Loans and shall be allocated among each Tranche of
outstanding Term Loans on a pro rata basis, with each Tranche of Term Loans to be
allocated its Term Loan Percentage of the amount of the respective repayment. The amount of each
principal repayment of each Tranche of Term Loans made as required by Sections 4.02(c),
4.02(d), 4.02(e) and 4.02(f) shall be applied to reduce the then remaining
Scheduled Term Loan Repayments on a pro rata basis (based upon the then remaining
principal amounts of such Scheduled Term Loan Repayments of such Tranche of Term Loans after giving
effect to all prior reductions thereto).



     (h) With respect to each repayment of Loans required by this Section 4.02, the
Borrower may designate the Types of Loans of the respective Tranche which are to be repaid and, in
the case of Eurodollar Loans, the specific Borrowing or Borrowings of the respective Tranche
pursuant to which such Eurodollar Loans were made, provided that: (i) repayments of
Eurodollar Loans pursuant to this Section 4.02 may only be made on the last day of an
Interest Period applicable thereto unless all Eurodollar Loans of the respective Tranche with
Interest Periods ending on such date of required repayment and all Base Rate Loans of the
respective Tranche have been paid in full; (ii) if any repayment of Eurodollar Loans made pursuant
to a single Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to such Borrowing
to an amount less than the Minimum Borrowing Amount applicable thereto, such Borrowing shall be
automatically converted into a Borrowing of Base Rate Loans; and (iii) each repayment of any Loans
made pursuant to a Borrowing shall be applied pro rata among such Loans. In the
absence of a designation by the Borrower as described in the preceding sentence, the Administrative
Agent shall, subject to the above, make such designation in its sole discretion with a view, but
not an obligation, to minimize breakage cost owing under Section 1.11.



     (i) In addition to any other mandatory repayments pursuant to this Section 4.02, (i)
notwithstanding anything to the contrary contained herein, all then outstanding Loans of a
respective Tranche shall be repaid in full on the respective Maturity Date for such Tranche of
Loans, and (ii) unless the Required Lenders otherwise agree in writing, all then outstanding Loans
shall be repaid in full on the date on which a Change of Control occurs.



     4.03 Method and Place of Payment. Except as otherwise specifically provided herein, all
payments under this Agreement and under any Note shall be made to the Administrative Agent for the
account of the Lender or Lenders entitled thereto not later than 1:00 P.M. (New York time) on the
date when due and shall be made in Dollars in immediately available funds at the Payment Office;
provided that, written notice by the Borrower to the Administrative Agent regarding the
making of any payment from the Borrower’s account at the Payment Office shall be deemed the making
of such payment to the extent that a sufficient amount of funds are available to be withdrawn from
such account and such funds are in fact



-29-









 




transferred to the Payment Office. Any payments under this
Agreement or under any Note which are made later than 1:00 P.M. (New York time) on any day shall be
deemed to have been made on the next succeeding Business Day. Whenever any payment to be made
hereunder or under any Note shall be stated to be due on a day which is not a Business Day, the due
date thereof shall be extended to the next succeeding Business Day and, with respect to payments of
principal, interest shall be payable at the applicable rate during such extension.




     4.04 Net Payments. (a) All payments made by the Borrower hereunder and under any Note
will be made without setoff, counterclaim or other defense. Except as provided in Section
4.04(b), all such payments will be made free and clear of, and without deduction or withholding
for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or
taxing authority thereof or therein with respect to such payments (but excluding, except as
provided in the second succeeding sentence, any tax imposed on or measured by the net income or net
profits of a Lender pursuant to the laws of the jurisdiction in which it is organized or the
jurisdiction in which the principal office or applicable lending office of such Lender is located
or any subdivision thereof or therein) and all interest, penalties or similar liabilities with
respect to such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges
(all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being
referred to collectively as “Taxes”). If any Taxes are so levied or imposed, the Borrower
agrees to pay the full amount of such Taxes, and such additional amounts as may be necessary so
that every payment of all amounts due under this Agreement or under any Note, after withholding or
deduction for or on account of any Taxes, will not be less than the amount provided for herein or
in such Note. If any amounts are payable in respect of Taxes pursuant to the preceding sentence,
the Borrower agrees to reimburse each Lender, upon the written request of such Lender, for taxes
imposed on or measured by the net income or net profits of such Lender pursuant to the laws of the
jurisdiction in which such Lender is organized or in which the principal office or applicable
lending office of such Lender is located or under the laws of any political subdivision or taxing
authority of any such jurisdiction in which such Lender is organized or in which the principal
office or applicable lending office of such Lender is located and for any withholding of taxes as
such Lender shall determine are payable by, or withheld from, such Lender, in respect of such
amounts so paid to or on behalf of such Lender pursuant to the preceding sentence and in respect of
any amounts paid to or on behalf of such Lender pursuant to this sentence. The Borrower will
furnish to the Administrative Agent within 45 days after the date the payment of any Taxes is due
pursuant to applicable law certified copies of tax receipts (or such other evidence reasonably
satisfactory to the Administrative Agent) evidencing such payment by the Borrower. The Borrower
agrees to indemnify and hold harmless each Lender, and reimburse such Lender upon its written
request, for the amount of any Taxes so levied or imposed and paid by such Lender.



     (b) Each Lender that is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for U.S. Federal income tax purposes agrees to deliver to the Borrower and
the Administrative Agent on or prior to the Effective Date or, in the case of a Lender that is an
assignee or transferee of an interest under this Agreement pursuant to Section 1.13 or
13.04(b) (unless the respective Lender was already a Lender hereunder immediately prior to
such assignment or transfer), on the date of such assignment or transfer to such Lender, (i) two
accurate and complete original signed copies of Internal Revenue Service Form W-8ECI or Form



-30-









 




W-8BEN
(with respect to a complete exemption under an income tax treaty) (or successor forms) certifying
to such Lender’s entitlement as of such date to a complete exemption from United States withholding
tax with respect to payments to be made under this Agreement and under any Note, or (ii) if the
Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver
either Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption
under an income tax treaty) (or any successor forms) pursuant to clause (i) above, (x) a
certificate substantially in the form of Exhibit D (any such certificate, a “Section
4.04(b)(ii) Certificate”) and (y) two accurate and complete original signed copies of Internal
Revenue Service Form W-8BEN (with respect to the portfolio interest exemption) (or successor form)
certifying to such Lender’s entitlement as of such date to a complete exemption from United States
withholding tax with respect to payments of interest to be made under this Agreement and under any
Note. In addition, each Lender agrees that from time to time after the Effective Date, when a
lapse in time or change in circumstances renders the previous certification obsolete or inaccurate
in any material respect, such Lender will deliver to the Borrower and the Administrative Agent two
new accurate and complete original signed copies of Internal Revenue Service Form W-8ECI, Form
W-8BEN (with respect to the benefits of any income tax treaty), or Form W-8BEN (with respect to the
portfolio interest exemption) and a Section 4.04(b)(ii) Certificate, as the case may be, and such
other forms as may be required in order to confirm or establish the entitlement of such Lender to a
continued exemption from or reduction in United States withholding tax with respect to payments
under this Agreement and any Note, or such Lender shall immediately notify the Borrower and the
Administrative Agent of its inability to deliver any such Form or Certificate, in which case such
Lender shall not be required to deliver any such Form or Certificate pursuant to this Section
4.04(b). Notwithstanding anything to the contrary contained in Section 4.04(a), but
subject to Section 13.04(b) and the immediately succeeding sentence, (x) the Borrower shall
be entitled, to the extent it is required to do so by law, to deduct or withhold income or similar
taxes imposed by the United States (or any political subdivision or taxing authority thereof or
therein) from interest, Fees or other amounts payable hereunder for the account of any Lender which
is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for U.S.
Federal income tax purposes to the extent that such Lender has not provided to the Borrower U.S.
Internal Revenue Service Forms that establish a complete exemption from such deduction or
withholding and (y) the Borrower shall not be obligated pursuant to Section 4.04(a) to
gross-up payments to be made to a Lender in respect of income or similar taxes imposed by the
United States if (I) such Lender has not provided to the Borrower the Internal Revenue Service
Forms required to be provided to the Borrower pursuant to this Section 4.04(b) or (II) in
the case of a payment, other than interest, to a Lender described in clause (ii) above, to the
extent that such
forms do not establish a complete exemption from withholding of such taxes. Notwithstanding
anything to the contrary contained in the preceding sentence or elsewhere in this Section
4.04 and except as set forth in Section 13.04(b), the Borrower agrees to pay any
additional amounts and to indemnify each Lender in the manner set forth in Section 4.04(a)

(without regard to the identity of the jurisdiction requiring the deduction or withholding) in
respect of any amounts deducted or withheld by it as described in the immediately preceding
sentence as a result of any changes that are effective after the Effective Date in any applicable
law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof,
relating to the deducting or withholding of such Taxes.





-31-









 








     (c) If the Borrower pays any additional amount under this Section 4.04 to a Lender and
such Lender determines in its sole discretion that it has actually received or realized in
connection therewith any refund or any reduction of, or credit against, its Tax liabilities in or
with respect to the taxable year in which the additional amount is paid (a “Tax Benefit”),
such Lender shall pay to the Borrower an amount that the Lender shall, in its sole discretion,
determine is equal to the net benefit, after tax, which was obtained by such Lender in such year as
a consequence of such Tax Benefit; provided, however, that (i) any Lender may
determine, in its sole discretion consistent with the policies of such Lender, whether to seek a
Tax Benefit, (ii) any Taxes that are imposed on a Lender as a result of a disallowance or reduction
(including through the expiration of any tax credit carryover or carryback of such Lender that
otherwise would not have expired) of any Tax Benefit with respect to which such Lender has made a
payment to the Borrower pursuant to this Section 4.04(c) shall be treated as a Tax for
which the Borrower is obligated to indemnify such Lender pursuant to this Section 4.04
without any exclusions or defenses, (iii) nothing in this Section 4.04(c) shall require any
Lender to disclose any confidential information to the Borrower (including, without limitation, its
tax returns), and (iv) no Lender shall be required to pay any amounts pursuant to this Section
4.04(c) at any time when a Default or an Event of Default exists.



     SECTION 5. Conditions Precedent to Credit Events on the Initial Borrowing Date. The
obligation of each Lender to make Loans, and the obligation of each Issuing Lender to issue Letters
of Credit, on the Initial Borrowing Date, are subject at the time of the making of such Loans or
the issuance of such Letters of Credit to the satisfaction of the following conditions:



     5.01 Effective Date; Notes. On or prior to the Initial Borrowing Date, (i) the Effective
Date shall have occurred as provided in Section 13.10 and (ii) there shall have been
delivered to the Administrative Agent for the account of each of the Lenders that has requested
same the appropriate Initial Term Note and/or Revolving Note executed by the Borrower and, if
requested by the Swingline Lender, the Swingline Note executed by the Borrower, in each case in the
amount, maturity and as otherwise provided herein.



     5.02 Officer’s Certificate. On the Initial Borrowing Date, the Administrative Agent shall have received a certificate, dated
the Initial Borrowing Date and signed on behalf of the Borrower by the chairman of the board, the
chief executive officer, the president, the chief financial officer or any vice president of the
Borrower, certifying on behalf of the Borrower that all of the conditions in Sections 5.06,
5.07, 5.08, 5.09 and 6.01 have been satisfied on such date.



     5.03 Opinions of Counsel. On the Initial Borrowing Date, the Administrative Agent shall
have received from Proskauer Rose LLP, special counsel to the Credit Parties, an opinion addressed
to the Administrative Agent, the Collateral Agent and each of the Lenders and dated the Initial
Borrowing Date covering the matters set forth in Exhibit E.



     5.04 Corporate Documents; Proceedings; etc. (a) On the Initial Borrowing Date, the
Administrative Agent shall have received a certificate from each Credit Party, dated the Initial
Borrowing Date, signed by the chairman of the board, the chief executive officer, the president,
the chief financial officer or any vice president of such Credit Party, and attested to by the
secretary or any assistant secretary of such Credit Party, in the form of Exhibit F with



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appropriate insertions, together with copies of the certificate or articles of incorporation and
by-laws (or other equivalent organizational documents), as applicable, of such Credit Party and the
resolutions of such Credit Party referred to in such certificate, and each of the foregoing shall
be in form and substance reasonably acceptable to the Administrative Agent.




     (b) On the Initial Borrowing Date, all corporate, limited liability company, partnership and
legal proceedings and all instruments and agreements in connection with the transactions
contemplated by this Agreement and the other Documents shall be reasonably satisfactory in form and
substance to the Administrative Agent, and the Administrative Agent shall have received all
information and copies of all documents and papers, including records of corporate proceedings,
governmental approvals, good standing certificates and bring-down telegrams or facsimiles, if any,
which the Administrative Agent reasonably may have requested in connection therewith, such
documents and papers where appropriate to be certified by proper corporate, limited liability
company, partnership or governmental authorities.



     5.05 Shareholders’ Agreements; Management Agreements; Non-Compete Agreements; Tax Sharing
Agreements; and Existing Indebtedness Agreements. On or prior to the Initial Borrowing Date,
there shall have been delivered to the Administrative Agent true and correct copies of the
following documents, certified as such by an Authorized Officer of Holdings or the Borrower, as
applicable:




     (i) all agreements entered into by Holdings or any of its Subsidiaries governing the
terms and relative rights of its Equity Interests and any agreements entered into by its
shareholders, members or partners relating to any such entity with respect to its Equity
Interests (collectively, the “Shareholders’ Agreements”);




     (ii) all material agreements between Holdings or any of its Subsidiaries and members of
the management of Holdings or any of its Subsidiaries or with respect to the management of
Holdings or any of its Subsidiaries (collectively, the “Management Agreements”);




     (iii) all non-compete agreements entered into by Holdings or any of its Subsidiaries
which restrict the activities of Holdings or any of its Subsidiaries (collectively, the
“Non-Compete Agreements”);




     (iv) all tax sharing, tax allocation and other similar agreements entered into by
Holdings or any of its Subsidiaries (collectively, the “Tax Sharing Agreements”);
and




     (v) all agreements evidencing or relating to Indebtedness of Holdings or any of its
Subsidiaries which is to remain outstanding after giving effect to the Transaction (the
“Existing Indebtedness Agreements”).


all of which Shareholders’ Agreements, Management Agreements, Non-Compete Agreements, Tax Sharing
Agreements and Existing Indebtedness Agreements shall be in form and substance reasonably
satisfactory to the Administrative Agent and shall be in full force and effect on the Initial
Borrowing Date.





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     5.06 Existing Senior Notes Tender Offer/Consent Solicitation; Redemption and Discharge of
any remaining Existing Senior Notes. (a) On or prior to the Initial Borrowing Date, (i) the
Borrower’s tender offer and consent solicitation with respect to its outstanding Existing Senior
Notes (the “Existing Senior Notes Tender Offer/Consent Solicitation”), pursuant to which
the Borrower shall have (x) offered, subject to the terms and conditions contained in the Offer to
Purchase and Consent Solicitation Statement, dated January 29, 2007, as amended from time to time
with the consent of the Administrative Agent (the “Offer to Purchase”) and related Letter
of Transmittal and Consent, dated January 29, 2007, as amended from time to time with the consent
of the Administrative Agent (the “Letter of Transmittal”), to purchase any and all of the
outstanding Existing Senior Notes at the cash price set forth in the Offer to Purchase and (y)
solicited consents to certain proposed amendments to the Existing Senior Notes Indenture, on terms
and conditions set forth in the Offer to Purchase and Letter of Transmittal, which proposed
amendments shall have provided for the substantial elimination of the operating covenants contained
in the Existing Senior Notes Indenture (including, without limitation, restrictions on the
incurrence of liens, restricted payments, transactions with affiliates and indebtedness) and the
amendment or elimination of certain other provisions in the Existing Senior Notes Indenture, shall
have expired, (ii) the Borrower shall have received sufficient consents from the holders of the
Existing Senior Notes to authorize the execution and delivery of the Existing Senior Notes
Indenture Supplement, (iii) the Borrower, the Subsidiary Guarantors and the Existing Senior Notes
Trustee shall have duly executed and delivered the Existing Senior Notes Indenture Supplement, (iv)
concurrently with the funding of the Initial Term Loans hereunder, the Borrower shall have accepted
for purchase all of the Existing Senior Notes validly tendered, and not theretofore withdrawn,
pursuant to the Offer to Purchase and Letter of Transmittal (which shall in no event be less than a
majority in aggregate principal amount of all outstanding Existing
Senior Notes), (v) the Administrative Agent shall have received true and correct copies of the
Offer to Purchase, Letter of Transmittal and Existing Senior Notes Indenture Supplement delivered
and/or entered into in connection with the Existing Senior Notes Tender Offer/Consent Solicitation,
and (vi) the Administrative Agent shall be reasonably satisfied that upon (x) the purchase of all
of the Existing Senior Notes validly tendered, and not theretofore withdrawn, pursuant to the Offer
to Purchase and Letter of Transmittal and (y) the execution and delivery of the Existing Senior
Notes Indenture Supplement by the Borrower and the Subsidiary Guarantors, the Existing Senior Notes
Tender Offer/Consent Solicitation shall have been consummated in accordance with the terms of the
Offer to Purchase, Letter of Transmittal, the Existing Senior Notes Indenture and all applicable
laws.



     (b) To the extent that any Existing Senior Notes remain outstanding on the Initial Borrowing
Date after giving effect to the Existing Senior Notes Tender Offer/Consent Solicitation, (i) the
Borrower shall have delivered to the Existing Senior Notes Trustee an irrevocable notice of
redemption for all outstanding Existing Senior Notes, which redemption (the “Existing Senior Notes
Redemption”) shall be effected on April 15, 2007 (the “Existing Senior Notes Redemption Date”) in
accordance with the optional redemption provisions set forth in Article Three of the Existing
Senior Notes Indenture, (ii) either (x) concurrently with the funding of the Initial Term Loans
hereunder, (I) the Borrower shall have irrevocably deposited with the Existing Senior Notes Trustee
cash in an amount sufficient to pay and discharge the entire Indebtedness on the outstanding
Existing Senior Notes for principal of, premium, if any, and interest on such Existing Senior Notes
through the Existing Senior Notes Redemption Date, (II) the Borrower shall have paid all other sums
that are then payable by the Borrower under the



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Existing Senior Notes Indenture, and (III) the
Borrower shall have irrevocably instructed the Existing Senior Notes Trustee in writing to apply
the funds referred to in preceding sub-clause (x) (I) to the payment of the Existing Senior Notes
on the Existing Senior Notes Redemption Date, or (y) concurrently with the funding of the Initial
Term Loans hereunder, the Borrower shall have deposited cash in an amount equal to that amount set
forth in preceding sub-clause (x) (I) with the Collateral Agent pursuant to cash collateral
arrangements reasonably satisfactory to the Administrative Agent to be held by the Collateral Agent
until the Existing Senior Notes Redemption Date and (iii) the Administrative Agent shall have
received evidence, in form and substance reasonably satisfactory to it, that the matters set forth
in preceding clauses (i) through (iii) have been satisfied.




     5.07 Refinancing. On the Initial Borrowing Date and concurrently with the funding of the
Initial Term Loans hereunder, all Indebtedness under the Existing Credit Agreement shall have been
repaid in full (other than the Existing Letters of Credit that are incorporated herein as Letters
of Credit) and all commitments in respect thereof shall have been terminated and all Liens and
guaranties in connection therewith shall have been terminated (and all appropriate releases,
termination statements or other instruments of assignment with respect thereto shall have been
obtained) to the reasonable satisfaction of the Administrative Agent. The Administrative Agent
shall have received satisfactory evidence (including satisfactory pay-off letters, mortgage
releases, intellectual property releases and UCC-3 termination statements) that the matters set
forth in the immediately preceding sentence have been satisfied as of the Initial Borrowing Date.



     5.08 Adverse Change, Approvals. (a) Since December 31, 2005 (but for this purpose
assuming that the Transaction had occurred prior to December 31, 2005), nothing shall have occurred
(and neither the Administrative Agent nor any Lender shall have become aware of any facts or
conditions not previously known) which the Administrative Agent or the Required Lenders shall
determine has had, or could reasonably be expected to have, (i) a Material Adverse Effect or (ii) a
material adverse effect on the Transaction.



     (b) On or prior to the Initial Borrowing Date, all necessary governmental (domestic and
foreign) and material third party approvals and/or consents in connection with the Transaction, the
other transactions contemplated hereby and the granting of Liens under the Credit Documents shall
have been obtained and remain in effect, and all applicable waiting periods with respect thereto
shall have expired without any action being taken by any competent authority which restrains,
prevents or imposes materially adverse conditions upon the consummation of the Transaction or the
other transactions contemplated by the Documents or otherwise referred to herein or therein. On
the Initial Borrowing Date, there shall not exist any judgment, order, injunction or other
restraint issued or filed or a hearing seeking injunctive relief or other restraint pending or
notified prohibiting or imposing materially adverse conditions upon the Transaction or the other
transactions contemplated by the Documents or otherwise referred to herein or therein.



     5.09 Litigation. On the Initial Borrowing Date, there shall be no actions, suits,
investigations or proceedings pending or threatened (i) with respect to the Transaction, this
Agreement or any other Document or (ii) which the Administrative Agent or the Required



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Lenders
shall determine has had, or could reasonably be expected to have, a materially adverse effect on
the Transaction or a Material Adverse Effect.




     5.10 Pledge Agreements. (a) On the Initial Borrowing Date, the Borrower and each
Subsidiary Guarantor shall have duly authorized, executed and delivered the Pledge Agreement in the
form of Exhibit G-1 (as amended, modified or supplemented from time to time, the
(“Borrower/Sub Pledge Agreement”) and shall have delivered to the Collateral Agent, as
pledgee thereunder, all of the Pledge Agreement Collateral, if any, referred to therein and then
owned by the Borrower or such Subsidiary Guarantor, (x) endorsed in blank in the case of promissory
notes constituting Pledge Agreement Collateral and (y) together with executed and undated
endorsements for transfer in the case of Equity Interests constituting certificated Pledge
Agreement Collateral, along with evidence that all other actions necessary or, in the reasonable
opinion of the Collateral Agent desirable, to perfect the security interests purported to be
created by the Borrower/Sub Pledge Agreement have been taken and the Borrower/Sub Pledge Agreement
shall be in full force and effect.



     (b) On the Initial Borrowing Date, Holdings shall have duly authorized, executed and delivered
the Pledge Agreement in the form of Exhibit G-2 (as amended, modified,
restated and/or supplemented from time to time, the “Holdings Pledge Agreement”) and
shall have delivered to the Collateral Agent, as pledgee thereunder, all of the Pledge Agreement
Collateral referred to therein and then owned by Holdings, together with executed and undated
endorsements for transfer in the case of Equity Interests constituting certificated Pledge
Agreement Collateral, along with evidence that all other actions necessary or, in the reasonable
opinion of the Collateral Agent, desirable, to perfect the security interests purported to be
created by the Holdings Pledge Agreement have been taken, and the Holdings Pledge Agreement shall
be in full force and effect.



     5.11 Security Agreement. On the Initial Borrowing Date, the Borrower and each Subsidiary
Guarantor shall have duly authorized, executed and delivered the Security Agreement in the form of
Exhibit H (as amended, modified or supplemented from time to time, the “Security
Agreement”) covering all of the Borrower’s or such Subsidiary Guarantor’s Security Agreement
Collateral, together with:




     (i) proper financing statements (Form UCC-1 or the equivalent) fully authorized for
filing under the UCC or other appropriate filing offices of each jurisdiction as may be
necessary or, in the reasonable opinion of the Collateral Agent desirable, to perfect the
security interests purported to be created by the Security Agreement;




     (ii) certified copies of requests for information or copies (Form UCC-11), or
equivalent reports as of a recent date, listing all effective financing statements that name
Holdings or any of its Subsidiaries as debtor and that are filed in the jurisdictions
referred to in clause (i) above and in such other jurisdictions in which Collateral is
located on the Initial Borrowing Date, together with copies of such other financing
statements that name Holdings or any of its Subsidiaries as debtor (none of which shall
cover any of the Collateral except (x) to the extent evidencing Permitted Liens or (y) those
in respect of which the Collateral Agent shall have received termination statements (Form
UCC-3) or



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such other termination statements as shall be required by local law fully executed
for filing);




     (iii) evidence of the completion of all other recordings and filings of, or with
respect to, the Security Agreement as may be necessary or, in the reasonable opinion of the
Collateral Agent desirable, to perfect the security interests intended to be created by the
Security Agreement; and




     (iv) evidence that all other actions necessary or, in the reasonable opinion of the
Collateral Agent desirable to perfect and protect the security interests purported to be
created by the Security Agreement have been taken, and the Security Agreement shall be in
full force and effect.


In addition, the Borrower shall have used its commercially reasonable efforts to obtain “control
agreements” in the form attached as Annex G to the Security Agreement (with such modifications
thereto as may be agreed to by the Administrative Agent) from JP Morgan Chase Bank with respect to
those deposit accounts listed on Annex F-2 to the Security Agreement, and
the Borrower shall have delivered to the Administrative Agent fully executed counterparts of those
“control agreements” so obtained by the Initial Borrowing Date.




     5.12 Subsidiaries Guaranty. On the Initial Borrowing Date, each Subsidiary Guarantor shall
have duly authorized, executed and delivered the Subsidiaries Guaranty in the form of Exhibit
I (as amended, modified or supplemented from time to time, the “Subsidiaries
Guaranty”), and the Subsidiaries Guaranty shall be in full force and effect.



     5.13 Financial Statements; Pro Forma Financials; Projections; etc. On or prior to the
Initial Borrowing Date, the Administrative Agent shall have received true and correct copies of the
historical financial statements, the pro forma financial statements and the
Projections referred to in Sections 7.05(a) and (d), which historical financial
statements, pro forma financial statements and Projections shall be in form and
substance reasonably satisfactory to the Administrative Agent and the Required Lenders.



     (b) On the Initial Borrowing Date, the Administrative Agent shall have received a certificate,
dated the Initial Borrowing Date and signed on behalf of Holdings by the chief financial officer of
Holdings, (i) certifying on behalf of Holdings that this Agreement and the incurrence of all Loans
and the issuance of all Letters of Credit, and the entering into of the Holdings Pledge Agreement,
on the Initial Borrowing Date are permitted under (and do not violate the provisions of) the
Existing Holdings Notes Indenture and (ii) containing financial calculations (in reasonable detail)
demonstrating that the Consolidated Fixed Coverage Ratio (as defined in the Existing Holdings Notes
Indenture) of each of Holdings and the Borrower exceeds 2.0 to 1.0 (after giving pro
forma effect to the Transaction on the Initial Borrowing Date).



     5.14 Solvency Certificate; Insurance Certificates. On the Initial Borrowing Date, the
Administrative Agent shall have received:




     (i) a solvency certificate from the chief financial officer of Holdings in the form of
Exhibit J hereto; and



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     (ii) certificates of insurance complying with the requirements of Section 8.03
for the business and properties of the Holdings and its Subsidiaries, in form and substance
reasonably satisfactory to the Administrative Agent and naming the Collateral Agent as an
additional insured and/or as loss payee, and stating that such insurance shall not be
canceled without at least 30 days’ prior written notice by the insurer to the Collateral
Agent.



     5.15 Fees, etc. On the Initial Borrowing Date, the Borrower shall have paid to the
Administrative Agent and each Lender all costs, fees and expenses (including, without limitation,
reasonable legal fees and expenses) and other compensation contemplated hereby payable to the
Administrative Agent or such Lender to the extent then due.



     SECTION 6. Conditions Precedent to All Credit Events. The obligation of each Lender to
make Loans (including Loans made on the Initial Borrowing Date), and the obligation of each Issuing
Lender to issue Letters of Credit (including Letters of Credit issued on the Initial Borrowing
Date), are subject, at the time of each such Credit Event (except as hereinafter indicated), to the
satisfaction of the following conditions:



     6.01 No Default; Representations and Warranties. At the time of each such Credit Event and
also after giving effect thereto (i) there shall exist no Default or Event of Default and (ii) all
representations and warranties contained herein and in the other Credit Documents shall be true and
correct in all material respects with the same effect as though such representations and warranties
had been made on the date of such Credit Event (it being understood and agreed that any
representation or warranty which by its terms is made as of a specified date shall be required to
be true and correct in all material respects only as of such specified date).



     6.02 Notice of Borrowing; Letter of Credit Request. (a) Prior to the making of each Loan
(other than a Swingline Loan or Revolving Loan made pursuant to a Mandatory Borrowing), the
Administrative Agent shall have received a Notice of Borrowing meeting the requirements of
Section 1.03(a). Prior to the making of each Swingline Loan, the Swingline Lender shall
have received the notice referred to in Section 1.03(b)(i).



     (b) Prior to the issuance of each Letter of Credit (other than the Letters of Credit referred
to in Section 2.02(b)), the Administrative Agent and the respective Issuing Lender shall
have received a Letter of Credit Request meeting the requirements of Section 2.03(a).



     6.03 No Excess Cash. The obligation of each Lender to make Revolving Loans, and the
obligation of the Swingline Lender to make Swingline Loans, in each case, shall be subject to the
satisfaction of the condition that at the time of each such making of a Revolving Loan or Swingline
Loan and immediately after giving effect thereto the Borrower and its Domestic Subsidiaries shall
not hold cash and Cash Equivalents in an aggregate amount (after giving effect to the incurrence of
such Credit Event and the application of proceeds therefrom and the application of any other cash
or Cash Equivalents on hand (to the extent such proceeds and/or other cash or Cash Equivalents are
actually utilized by the Borrower and/or any Domestic



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Subsidiary of the Borrower on the respective
date of incurrence of the respective Credit Event for a permitted purpose other than an investment
in Cash Equivalents)) in excess of $15,000,000.




     The acceptance of the benefits of each Credit Event shall constitute a representation and
warranty by Holdings and the Borrower to the Administrative Agent and each of the Lenders that all
the conditions specified in Section 5 (with respect to Credit Events on the Initial
Borrowing Date) and in this Section 6 (with respect to Credit Events on or after the
Initial Borrowing Date) and applicable to such Credit Event are satisfied as of that time. All of
the Notes, certificates, legal opinions and other documents and papers referred to in Section
5 and in
this Section 6, unless otherwise specified, shall be delivered to the Administrative
Agent at the Notice Office for the account of each of the Lenders and, except for the Notes, in
sufficient counterparts or copies for each of the Lenders and shall be in form and substance
reasonably satisfactory to the Administrative Agent and the Required Lenders.



     SECTION 7. Representations, Warranties and Agreements. In order to induce the Lenders to
enter into this Agreement and to make the Loans, and issue (or participate in) the Letters of
Credit as provided herein, each of Holdings (as to itself only) and the Borrower (as to itself and
each of its Subsidiaries) makes the following representations, warranties and agreements, in each
case after giving effect to the Transaction, all of which shall survive the execution and delivery
of this Agreement and the Notes and the making of the Loans and the issuance of the Letters of
Credit, with the occurrence of each Credit Event on or after the Initial Borrowing Date being
deemed to constitute a representation and warranty that the matters specified in this Section
7 are true and correct in all material respects on and as of the Initial Borrowing Date and on
the date of each such other Credit Event (it being understood and agreed that any representation or
warranty which by its terms is made as of a specified date shall be required to be true and correct
in all material respects only as of such specified date).



     7.01 Organizational Status. Each of Holdings and each of its Subsidiaries (i) is a duly
organized and validly existing corporation, partnership or limited liability company, as the case
may be, in good standing under the laws of the jurisdiction of its organization, (ii) has the
corporate, partnership or limited liability company power and authority, as the case may be, to own
its property and assets and to transact the business in which it is engaged and presently proposes
to engage, and (iii) is duly qualified and is authorized to do business and is in good standing in
each jurisdiction where the ownership, leasing or operation of its property or the conduct of its
business requires such qualifications, except for failures to be so qualified or authorized which,
either individually or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.



     7.02 Power and Authority. Each Credit Party has the corporate, partnership or limited
liability company power and authority, as the case may be, to execute, deliver and perform the
terms and provisions of each of the Documents to which it is a party and has taken all necessary
corporate, partnership or limited liability company action, as the case may be, to authorize the
execution, delivery and performance by it of each of such Documents. Each Credit Party has duly
executed and delivered each of the Documents to which it is party, and each of such Documents
constitutes its legal, valid and binding obligation enforceable in accordance with its terms,
except to the extent that the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws generally affecting



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creditors’ rights
and by equitable principles (regardless of whether enforcement is sought in equity or at law).




     7.03 No Violation. Neither the execution, delivery or performance by any Credit Party
of the Documents to which it is a party, nor compliance by it with the terms and provisions
thereof, (i)
will contravene any provision of any law, statute, rule or regulation or any order, writ,
injunction or decree of any court or governmental instrumentality, (ii) will conflict with or
result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of (or the obligation to create or impose)
any Lien (except pursuant to the Security Documents) upon any of the property or assets of any
Credit Party or any of its Subsidiaries pursuant to the terms of any indenture, mortgage, deed of
trust, credit agreement or loan agreement, or any other material agreement, contract or instrument,
in each case to which any Credit Party or any of its Subsidiaries is a party or by which it or any
its property or assets is bound or to which it may be subject, or (iii) will violate any provision
of the certificate or articles of incorporation, certificate of formation, limited liability
company agreement, partnership agreement or by-laws (or equivalent organizational documents), as
applicable, of any Credit Party or any of its Subsidiaries.



     7.04 Approvals. No order, consent, approval, license, authorization or validation of, or
filing, recording or registration with (except for (x) those that have otherwise been obtained or
made on or prior to the Initial Borrowing Date and which remain in full force and effect on the
Initial Borrowing Date and (y) filings which are necessary to perfect the security interests
created under the Security Documents, which filings will be made within ten days following the
Initial Borrowing Date), or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to be obtained or made by, or on behalf of, any Credit Party to
authorize, or is required to be obtained or made by, or on behalf of, any Credit Party in
connection with, (i) the execution, delivery and performance of any Document or (ii) the legality,
validity, binding effect or enforceability of any such Document.



     7.05 Financial Statements; Financial Condition; Undisclosed Liabilities; Holdings’
Projections. (a) (i) The consolidated balance sheets of Holdings and its Subsidiaries for
Holdings’ fiscal years ended on December 31, 2004 and December 31, 2005, respectively, and its
fiscal quarter ended on September 30, 2006, and (in each case) the related consolidated statements
of income, cash flows and shareholders’ equity (or deficit, as the case may be) of Holdings and its
Subsidiaries for such fiscal years or fiscal quarter (as the case may be) ended on such dates,
copies of which have been furnished to the Lenders prior to the Initial Borrowing Date, present
fairly in all material respects the consolidated financial position of Holdings and its
Subsidiaries at the dates of such balance sheets and the consolidated results of the operations of
Holdings and its Subsidiaries for the periods covered thereby. All of the foregoing historical
financial statements have been prepared in accordance with generally accepted accounting principles
consistently applied (except, in the case of such interim financial statements, for the absence of
footnotes and normal year-end audit adjustments).



     (ii) The pro forma consolidated financial statements of Holdings and its
Subsidiaries at September 30, 2006 after giving effect to the Transaction and the financing
therefor, copies of which have been furnished to the Lenders prior to the Initial Borrowing Date,
present fairly in all material respects the pro forma consolidated financial
position of Holdings



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and its Subsidiaries as of September 30, 2006 and the pro
forma consolidated results of
operations of Holdings and its Subsidiaries for the twelve-month period ended on September 30,
2006. Such pro forma financial statements have been prepared on a basis consistent
with the historical financial statements set forth in clause (i) of this Section 7.05(a).




     (b) On and as of the Initial Borrowing Date, and after giving effect to the Transaction and to
all Indebtedness (including the Loans) being incurred or assumed and Liens created by the Credit
Parties in connection therewith, (i) the sum of the assets, at a fair valuation, of the Borrower on
a stand-alone basis, of Holdings and its Subsidiaries taken as a whole and of the Borrower and its
Subsidiaries taken as a whole will exceed its or their respective debts, (ii) the Borrower on a
stand-alone basis, Holdings and its Subsidiaries taken as a whole and the Borrower and its
Subsidiaries taken as a whole has or have not incurred and does or do not intend to incur, and does
or do not believe that it or they will incur, debts beyond its or their respective ability to pay
such debts as such debts mature, and (iii) the Borrower on a stand-alone basis, Holdings and its
Subsidiaries taken as a whole and the Borrower and its Subsidiaries taken as a whole will have
sufficient capital with which to conduct their respective businesses. For purposes of this
Section 7.05(b), “debt” means any liability on a claim, and “claim” means (a) right to
payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured or
(b) right to an equitable remedy for breach of performance if such breach gives rise to a payment,
whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent,
matured, unmatured, disputed, undisputed, secured or unsecured. The amount of contingent
liabilities at any time shall be computed as the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.



     (c) Except (i) as fully disclosed in the financial statements referred to in Section
7.05(a) and (ii) for the Obligations, there were as of the Initial Borrowing Date no
liabilities or obligations with respect to Holdings or any of its Subsidiaries of any nature
whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which,
either individually or in the aggregate, could reasonably be expected to have a Material Adverse
Effect. As of the Initial Borrowing Date and except for the Obligations, neither Holdings nor the
Borrower knows of no reasonable basis for the assertion against it or any of its Subsidiaries of
any liability or obligation of any nature whatsoever that is not fully disclosed in the financial
statements or referred to in Section 7.05(a) which, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.



     (d) The Projections delivered to the Administrative Agent and the Lenders prior to the Initial
Borrowing Date represent estimates of the performance of the Borrower and its Subsidiaries for the
periods stated therein based upon assumptions which were believed by the Borrower in good faith to
be reasonable when made and continue to be reasonable as of the Initial Borrowing Date;
provided, however, that the foregoing is not a guarantee that such projections will
be achieved. The Projections are based upon estimates and assumptions stated therein, all of which
the Borrower believes in good faith to be reasonable and fair in light of current conditions and
current facts known to the Borrower and, as of the Initial Borrowing Date, reflect the Borrower’s
good faith and reasonable estimates of the future financial performance of the Borrower and its
Subsidiaries and of the other information projected therein for the periods



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set forth therein; it being understood that the Projections are subject to significant risks
and uncertainties, many of which are beyond the Borrower’s control.




     (e) After giving effect to the Transaction (but for this purpose assuming that the Transaction
and the related financing had occurred prior to December 31, 2005), since December 31, 2005, there
has been no change in the condition (financial or otherwise), business, operations, assets,
liabilities or prospects of Holdings or any of its Subsidiaries that has had, or could reasonably
be expected to have, either individually or in the aggregate, a Material Adverse Effect.



     7.06 Litigation. There are no actions, suits or proceedings pending or, to the knowledge
of Holdings and the Borrower, threatened (i) with respect to the Transaction or any Document or
(ii) that could reasonably be expected, either individually or in the aggregate, to have a Material
Adverse Effect.



     7.07 True and Complete Disclosure. All factual information (taken as a whole) furnished by
or on behalf of Holdings or the Borrower in writing to the Administrative Agent or any Lender
(including, without limitation, all information contained in the Documents) for purposes of or in
connection with this Agreement, the other Credit Documents or any transaction contemplated herein
or therein is, and all other such factual information (taken as a whole) hereafter furnished by or
on behalf of Holdings or the Borrower in writing to the Administrative Agent or any Lender will be,
true and accurate in all material respects on the date as of which such information is dated or
certified and not incomplete by omitting to state any fact necessary to make such information
(taken as a whole) not misleading in any material respect at such time in light of the
circumstances under which such information was provided.



     7.08 Use of Proceeds; Margin Regulations. (a) All proceeds of the Term Loans will be
used by the Borrower to (i) finance the Refinancing, (ii) finance the Existing Senior Notes Tender
Offer/Consent Solicitation and the Existing Senior Notes Redemption, (iii) add up to approximately
$4,000,000 in cash to the Borrower’s balance sheet and (iv) pay the fees and expenses incurred in
connection with the Transaction.



     (b) All proceeds of the Revolving Loans and the Swingline Loans will be used for the working
capital, capital expenditures and other general corporate purposes of the Borrower and its
Subsidiaries; provided that no proceeds of Revolving Loans or Swingline Loans may be used
to effect the Transaction or to pay any fees and expenses incurred in connection therewith.



     (c) All proceeds of Incremental Term Loans will be used for the working capital, capital
expenditures and other general corporate purposes of the Borrower and its Subsidiaries.



     (d) No part of any Credit Event (or the proceeds thereof) will be used to purchase or carry
any Margin Stock or to extend credit for the purpose of purchasing or carrying any Margin Stock.
Neither the making of any Loan nor the use of the proceeds thereof nor the occurrence of any other
Credit Event will violate or be inconsistent with the provisions of Regulation T, U or X of the
Board of Governors of the Federal Reserve System.



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     7.09 Tax Returns and Payments. Each of Holdings and each of its Subsidiaries has timely
filed or caused to be timely filed with the appropriate taxing authority all federal and state
income tax returns and all other material tax returns, domestic and foreign (the “Returns”)
required to be filed by, or with respect to the income, properties or operations of, Holdings
and/or any of its Subsidiaries. The Returns accurately reflect in all material respects all
liability for taxes of Holdings and its Subsidiaries for the periods covered thereby. Each of
Holdings and each of its Subsidiaries has paid all taxes and assessments due and payable by it,
other than those that are immaterial and those that are being contested in good faith and
adequately disclosed and fully provided for on the financial statements of Holdings and its
Subsidiaries in accordance with generally accepted accounting principles. There is no action,
suit, proceeding, investigation, audit or claim now pending or, to the best knowledge of Holdings
or any of its Subsidiaries, threatened by any authority regarding any taxes relating to Holdings or
any of its Subsidiaries that, either individually or in the aggregate, could reasonably be expected
to result in a material liability to Holdings and its Subsidiaries taken as a whole. As of the
Initial Borrowing Date, neither Holdings nor any of its Subsidiaries has entered into an agreement
or waiver or been requested to enter into an agreement or waiver extending any statute of
limitations relating to the payment or collection of taxes of Holdings or any of its Subsidiaries,
or is aware of any circumstances that would cause the taxable years or other taxable periods of
Holdings or any of its Subsidiaries not to be subject to the normally applicable statute of
limitations.



     7.10 Compliance with ERISA. (a) Schedule V sets forth, as of the Initial
Borrowing Date, the name of each Plan. Except to the extent that a breach of any of the following
representations or warranties in this clause (a), either individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect: each Plan is in compliance with its
terms and with all applicable laws, including, without limitation, ERISA and the Code; each Plan
(and each related trust, if any) that is intended to be qualified under Section 401(a) of the Code
has received a determination letter from the Internal Revenue Service or has submitted or is within
the remedial amendment period for submitting an application for a determination letter with the
Internal Revenue Service, or is a prototype plan that has received an Internal Revenue Service
opinion letter with respect to the prototype plan document, to the effect that it meets the
requirements of Sections 401(a) and 501(a) of the Code, and, to Holdings’ and the Borrower’s
knowledge, no event has occurred and no condition or circumstance has existed that has resulted, or
would be likely to result, in the revocation of any such determination or opinion, rejection of
such an application or the failure to issue such a favorable determination letter; no Reportable
Event has occurred; no Plan that is a multiemployer plan (as defined in Section 4001(a)(3) of
ERISA) is insolvent or in reorganization; no Plan has an Unfunded Current Liability; no Plan that
is subject to Section 412 of the Code or Section 302 of ERISA has an accumulated funding
deficiency, within the
meaning of such Sections of the Code or ERISA, or has applied for or received a waiver of an
accumulated funding deficiency or an extension of any amortization period, within the meaning of
Section 412 of the Code or Section 303 or 304 of ERISA; all contributions required to be made with
respect to a Plan have been timely made; neither Holdings nor any Subsidiary of Holdings nor any
ERISA Affiliate has incurred any liability to or on account of a Plan pursuant to Section 409,
502(i), 502(l), 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or
4975 of the Code or, to Holdings’ and the Borrower’s knowledge, expects to incur any such liability
under any of the foregoing sections with respect to any Plan; no condition exists which presents a
material risk to Holdings or any Subsidiary of Holdings or any ERISA Affiliate of incurring a
liability to or on



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account of a Plan pursuant to the foregoing provisions of ERISA and the Code; no
proceedings have been instituted to terminate or appoint a trustee to administer any Plan which is
subject to Title IV of ERISA; no action, suit, proceeding, hearing, audit or investigation with
respect to the administration, operation or the investment of assets of any Plan (other than
routine claims for benefits) is pending, or, to Holdings’ and the Borrower’s knowledge, expected or
threatened; using actuarial assumptions and computation methods consistent with Part 1 of subtitle
E of Title IV of ERISA, the aggregate liabilities of Holdings and its Subsidiaries and its ERISA
Affiliates to all Plans that are multiemployer plans (as defined in Section 4001(a)(3) of ERISA) in
the event of a complete withdrawal therefrom, as of the close of the most recent fiscal year of
each such Plan ended prior to the date hereof could not reasonably be expected, either individually
or in the aggregate, to be material; each group health plan (as defined in Section 607(1) of ERISA
or Section 4980B(g)(2) of the Code) which covers or has covered employees or former employees of
Holdings, any Subsidiary of Holdings, or any ERISA Affiliate has at all times been operated in
compliance with the provisions of Part 6 of subtitle B of Title I of ERISA and Section 4980B of the
Code; no lien imposed under the Code or ERISA on the assets of Holdings or any Subsidiary of
Holdings or any ERISA Affiliate exists or is likely to arise on account of any Plan; and Holdings
and its Subsidiaries do not maintain or contribute to any employee welfare benefit plan (as defined
in Section 3(1) of ERISA) which provides benefits to retired employees or other former employees
(other than as required by Section 601 of ERISA) or any Plan the obligations with respect to which
could reasonably be expected to be material.




     (b) Except to the extent that a breach of any of the following representations or warranties
in this clause (b), either individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect: each Foreign Pension Plan has been maintained in substantial
compliance with its terms and with the requirements of any and all applicable laws, statutes,
rules, regulations and orders and has been maintained, where required, in good standing with
applicable regulatory authorities; all contributions required to be made with respect to a Foreign
Pension Plan have been timely made; neither Holdings nor any of its Subsidiaries has incurred any
obligation in connection with the termination of, or withdrawal from, any Foreign Pension Plan; the
present value of the accrued benefit liabilities (whether or not vested) under each Foreign Pension
Plan, determined as of the end of Holdings’ most recently ended fiscal year on the basis of
actuarial assumptions, each of which is reasonable, did not exceed the current value of the assets
of such Foreign Pension Plan allocable to such benefit liabilities.



     7.11 The Security Documents. (a) The provisions of the Security Agreement are effective to create in favor of the Collateral
Agent for the benefit of the Secured Creditors a legal, valid and enforceable security interest in
all right, title and interest of the respective Credit Parties in the Security Agreement Collateral
described therein, and the Collateral Agent, for the benefit of the Secured Creditors, has (or
within 10 days (or 90 days in the case of filings to be made with the United States Copyright
Office or the United States Patent and Trademark Office) following the Initial Borrowing Date will
have) a fully perfected security interest in all right, title and interest in all of the Security
Agreement Collateral described therein, subject to no other Liens other than Permitted Liens. The
recordation of (x) the Grant of Security Interest in U.S. Patents, if applicable, and (y) the Grant
of Security Interest in U.S. Trademarks, if applicable, in the respective form attached to the
Security Agreement, in each case in the United States Patent and Trademark Office, together with
filings on Form UCC-1 made pursuant to the Security Agreement, will create, as may be perfected by
such filings and recordation, a perfected security



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interest in the United States trademarks and
patents covered by the Security Agreement, and the recordation of the Grant of Security Interest in
U.S. Copyrights, if applicable, in the form attached to the Security Agreement with the United
States Copyright Office, together with filings on Form UCC-1 made pursuant to the Security
Agreement, will create, as may be perfected by such filings and recordation, a perfected security
interest in the United States copyrights covered by the Security Agreement.




     (b) The security interests created under each Pledge Agreement in favor of the Collateral
Agent, as Pledgee, for the benefit of the Secured Creditors, constitute perfected security
interests in the Pledge Agreement Collateral described in each Pledge Agreement, subject to no
security interests of any other Person. No filings or recordings are required in order to perfect
(or maintain the perfection or priority of) the security interests created in the Pledge Agreement
Collateral under either Pledge Agreement other than with respect to that portion of the Pledge
Agreement Collateral constituting a “general intangible” under the UCC which is not also a
“certificated security” (as defined in the UCC as in effect with New York).



     7.12 Properties. All Real Property owned or leased by Holdings or any of its Subsidiaries
as of the Initial Borrowing Date, and the nature of the interest therein, is set forth in
Schedule IV. Each of Holdings and each of its Subsidiaries has good and marketable title
to all material properties owned by it, and a valid leasehold interest in all material property
leased by it, including (in each case) all material property reflected in the most recent
historical balance sheets referred to in Section 7.05(a) (except as sold or otherwise
disposed of since the date of such balance sheet in the ordinary course of business or as permitted
by the terms of this Agreement), free and clear of all Liens, other than Permitted Liens.



     7.13 Capitalization. On the Initial Borrowing Date, the authorized capital stock of
Holdings consists of (i) 100,000,000 shares of common stock, par value $.001 per share (the
“Holdings Common Stock”), and (ii) 5,000,000 shares of preferred stock, par value $0.001
per share, no shares of which preferred stock are issued or outstanding. All outstanding shares of
capital stock of Holdings have been duly and validly issued and are fully paid and non-assessable.
Holdings
does not have outstanding any capital stock or other securities convertible into or exchangeable
for its capital stock or any rights to subscribe for or to purchase, or any options for the
purchase of, or any agreement providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to, its capital stock, except for options
and warrants to purchase shares of Holdings common stock and/or Qualified Preferred Stock which may
be issued from time to time.



     7.14 Subsidiaries. Holdings has no Subsidiaries other than (i) those Subsidiaries listed
on Schedule VI (which Schedule identifies the direct owner of each such Subsidiary on the
Initial Borrowing Date and their percentage ownership interest therein) and (ii) new Subsidiaries
created in compliance with Section 9.12.



     7.15 Compliance with Statutes, etc. Each of Holdings and each of its Subsidiaries is in
compliance with all applicable statutes, regulations and orders of, and all applicable restrictions
imposed by, all governmental bodies, domestic or foreign, in respect of the conduct of its business
and the ownership of its property (including, without limitation, applicable statutes, regulations,
orders and restrictions relating to environmental standards and



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controls), except such
noncompliances as could not, either individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.




     7.16 Investment Company Act. Neither Holdings nor any of its Subsidiaries is an
“investment company” or a company “controlled” by an “investment company,” within the meaning of
the Investment Company Act of 1940, as amended.



     7.17 Environmental Matters. (a) Each of Holdings and each of its Subsidiaries is in
compliance with all applicable Environmental Laws and the requirements of any permits issued under
such Environmental Laws. There are no pending or, to the knowledge of Holdings and the Borrower,
threatened Environmental Claims against Holdings or any of its Subsidiaries or any Real Property
owned, leased or operated by Holdings or any of its Subsidiaries (including, to the knowledge of
Holdings and the Borrower, any such claim arising out of the ownership, lease or operation by
Holdings or any of its Subsidiaries of any Real Property formerly owned, leased or operated by
Holdings or any of its Subsidiaries but no longer owned, leased or operated by Holdings or any of
its Subsidiaries). There are no facts, circumstances, conditions or occurrences with respect to
the business or operations of Holdings or any of its Subsidiaries, or any Real Property owned,
leased or operated by Holdings or any of its Subsidiaries (including, to the knowledge of Holdings
and the Borrower, any Real Property formerly owned, leased or operated by Holdings or any of its
Subsidiaries but no longer owned, leased or operated by Holdings or any of its Subsidiaries) or, to
the knowledge of Holdings and the Borrower, any property adjoining or adjacent to any such Real
Property that could be reasonably expected (i) to form the basis of an Environmental Claim against
Holdings or any of its Subsidiaries or any Real Property owned, leased or operated by Holdings or
any of its Subsidiaries or (ii) to cause any Real Property
owned, leased or operated by Holdings or any of its Subsidiaries to be subject to any restrictions
on the ownership, lease, occupancy or transferability of such Real Property by Holdings or any of
its Subsidiaries under any applicable Environmental Law.



     (b) Hazardous Materials have not at any time been generated, used, treated or stored on, or
transported to or from, or Released on or from, any Real Property owned, leased or operated by
Holdings or any of its Subsidiaries or, to the knowledge of Holdings and the Borrower, any property
adjoining or adjacent to any Real Property, where such generation, use, treatment, storage,
transportation or Release has violated or could be reasonably expected to violate any applicable
Environmental Law or give rise to an Environmental Claim against Holdings or any of its
Subsidiaries.



     (c) Notwithstanding anything to the contrary in this Section 7.17, the representations
and warranties made in this Section 7.17 shall be untrue only if the effect of any or all
conditions, violations, claims, restrictions, failures and noncompliances of the types described
above could, either individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.



     7.18 Labor Relations. Neither Holdings nor any of its Subsidiaries is engaged in any
unfair labor practice that could reasonably be expected, either individually or in the aggregate,
to have a Material Adverse Effect. There is (i) no unfair labor practice complaint pending against
Holdings or any of its Subsidiaries or, to the knowledge of Holdings and the Borrower, threatened
against any of them, before the National Labor Relations Board, and no



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grievance or arbitration
proceeding arising out of or under any collective bargaining agreement is so pending against
Holdings or any of its Subsidiaries or, to the knowledge of Holdings and the Borrower, threatened
against any of them, (ii) no strike, labor dispute, slowdown or stoppage pending against Holdings
or any of its Subsidiaries or, to the knowledge of Holdings and the Borrower, threatened against
Holdings or any of its Subsidiaries and (iii) no union representation question exists with respect
to the employees of Holdings or any of its Subsidiaries, except (with respect to any matter
specified in clause (i), (ii) or (iii) above, either individually or in the aggregate) such as
could not reasonably be expected to have a Material Adverse Effect.




     7.19 Intellectual Property, etc. Each of Holdings and each of its Subsidiaries owns or has
the right to use all the domestic and foreign patents, trademarks, permits, domain names, service
marks, trade names, copyrights, licenses, franchises, inventions, trade secrets, proprietary
information and know-how of any type, whether or not written (including, but not limited to, rights
in computer programs, databases and data collections) and formulas, or has rights with respect to
the foregoing, and has obtained assignments of all licenses and other proprietary rights of
whatever nature, necessary for the present conduct of its business, without any known conflict with
the rights of others which, or the failure to obtain which, as the case may be, could reasonably be
expected, either individually or in the aggregate, to have a Material Adverse Effect.



     7.20 Indebtedness. Schedule VII sets forth a true and complete list of all Indebtedness (including
Contingent Obligations) of Holdings and its Subsidiaries as of the Initial Borrowing Date
(excluding the Obligations and the Existing Holdings Notes, the “Existing Indebtedness”)
and which is to remain outstanding after giving effect to the Transaction, in each case showing the
aggregate principal amount thereof and the name of the respective borrower and any Credit Party or
any of its Subsidiaries which directly or indirectly guarantees such debt.



     7.21 Insurance. Schedule VIII sets forth a true and complete listing of all
insurance maintained by Holdings and its Subsidiaries as of the Initial Borrowing Date, with the
amounts insured (and any deductibles) set forth therein.



     7.22 Legal Names; Type of Organization (and Whether a Registered Organization); Jurisdiction of
Organization; etc. Schedule IX sets forth, as of the Initial Borrowing Date, the legal
name of each Credit Party, the type of organization of each Credit Party, whether or not each
Credit Party is a registered organization (within the meaning of the New York UCC), the
jurisdiction of organization of each Credit Party, the location (within the meaning of the New York
UCC) of each Credit Party, and the organizational identification number (if any) of each of Credit
Party.



     7.23 Subordination. After the execution and delivery thereof, each Borrower Note Document,
to the extent that the Borrower Notes are issued on a subordinated basis, is enforceable against
the Borrower, the Subsidiary Guarantors and the holders of the Borrower Notes evidenced thereby,
and all Obligations of the Borrower and the Subsidiary Guarantors hereunder and under the other
Credit Documents are within the definition of “Senior Debt” (or any relevant similar term) included
in such subordination provisions



     SECTION 8. Affirmative Covenants. Each of Holdings (as to itself only) and



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the Borrower
(as to itself and each of its Subsidiaries) hereby covenants and agrees that on and after the
Effective Date and until the Total Commitment and all Letters of Credit have terminated and the
Loans, Notes and Unpaid Drawings (in each case together with interest thereon), Fees and all other
Obligations (other than indemnities described in Section 13.13 which are not then due and
payable) incurred hereunder and thereunder, are paid in full:




     8.01 Information Covenants. Holdings will furnish to each Lender:



     (a) Monthly Reports. Within 30 days after the end of each fiscal month of Holdings
(commencing with its fiscal month ending on February 28, 2007), the consolidated balance sheet of
Holdings and its
Subsidiaries as at the end of such fiscal month and the related consolidated statements of income
and retained earnings (or accumulated deficit, as the case may be) and statement of cash flows for
such fiscal month and for the elapsed portion of the fiscal year ended with the last day of such
fiscal month, in each case setting forth comparative figures for the corresponding fiscal month in
the prior fiscal year and comparable budgeted figures for such fiscal month as set forth in the
respective budget delivered pursuant to Section 8.01(e), all of which shall be certified by
an Authorized Financial Officer of Holdings that they fairly present in all material respects in
accordance with generally accepted accounting principles the financial condition of Holdings and
its Subsidiaries as of the dates indicated and the results of their operations for the periods
indicated, subject to normal year-end audit adjustments and the absence of footnotes.



     (b) Quarterly Financial Statements. Within 45 days after the close of each of the first
three quarterly accounting periods in each fiscal year of Holdings, (i) the consolidated balance
sheet of Holdings and its Subsidiaries at the end of such quarterly accounting period and the
related consolidated statements of income and retained earnings (or accumulated deficit, as the
case may be) and statement of cash flows for such quarterly accounting period and for the elapsed
portion of the fiscal year ended with the last day of such quarterly accounting period, in each
case setting forth comparative figures for the corresponding quarterly accounting period in the
prior fiscal year and comparable budgeted figures for such quarterly accounting period as set forth
in the respective budget delivered pursuant to Section 8.01(e), all of which shall be
certified by an Authorized Financial Officer of Holdings that they fairly present in all material
respects in accordance with generally accepted accounting principles the financial condition of
Holdings and its Subsidiaries as of the dates indicated and the results of their operations for the
periods indicated, subject to normal year-end audit adjustments and the absence of footnotes, and
(ii) management’s discussion and analysis of the important operational and financial developments
during such quarterly accounting period (it being understood and agreed that any such management’s
discussion and analysis set forth in Holdings’ Form 10-Q filed with the SEC for the respective
quarterly accounting period shall satisfy the requirements of this sub-clause (ii) so long as a
copy of such Form 10-Q has been delivered to the Lenders pursuant to this Section 8.01(b)
or Section 8.01(h)).



     (c) Annual Financial Statements. Within 90 days after the close of each fiscal year of
Holdings (commencing with its fiscal year ended December 31, 2006), (i) the consolidated balance
sheet of Holdings and its Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income and retained earnings (or accumulated deficit, as the case may
be) and statement of cash flows for such fiscal year setting forth comparative



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figures for the
preceding fiscal year and certified by PricewaterhouseCoopers LLP or other independent certified
public accountants of recognized national standing reasonably acceptable to the Administrative
Agent, together with a report of such accounting firm stating that in the course of its regular
audit of the financial statements of Holdings and its Subsidiaries, which audit was conducted in
accordance with generally accepted auditing standards, such accounting firm obtained no knowledge
of any Default or Event of Default relating to financial or accounting matters which has occurred
and is continuing or, if in the opinion of such accounting firm such a Default or an Event of
Default has occurred and is continuing, a statement as to the nature thereof, and (ii) management’s
discussion and analysis of
the important operational and financial developments during such fiscal year (it being understood
and agreed that any such management’s discussion and analysis set forth in Holdings’ Form 10-K
filed with the SEC for the respective fiscal year shall satisfy the requirements of this sub-clause
(ii) so long as a copy of such Form 10-K has been delivered to the Lenders pursuant to this
Section 8.01(c) or Section 8.01(h).




     (d) Management Letters. Promptly after Holdings’ or any of its Subsidiaries’ receipt
thereof, a copy of any “management letter” received from its certified public accountants and
management’s response thereto.



     (e) Budgets. No later than 30 days following the first day of each fiscal year of
Holdings, a budget in form reasonably satisfactory to the Administrative Agent (including budgeted
statements of income, sources and uses of cash and balance sheets for Holdings and its Subsidiaries
on a consolidated basis) for each of the twelve months of such fiscal year prepared in detail
setting forth, with appropriate discussion, the principal assumptions upon which such budget is
based.



     (f) Officer’s Certificates. At the time of the delivery of the financial statements
provided for in Sections 8.01(b) and (c) (provided that the compliance certificate
delivered in connection with the annual financial statements for Holdings’ fiscal year ended
December 31, 2006 may be delivered with 120 days after the close of such fiscal year), a compliance
certificate from an Authorized Financial Officer of Holdings in the form of Exhibit K
certifying on behalf of Holdings that, to such officer’s knowledge after due inquiry, no Default or
Event of Default has occurred and is continuing or, if any Default or Event of Default has occurred
and is continuing, specifying the nature and extent thereof, which certificate shall (i) set forth
in reasonable detail the calculations required to establish whether Holdings and its Subsidiaries
were in compliance with the provisions of Sections 9.01(x), 9.01(xv),
9.02(iv), 9.03(iii), 9.03(v), 9.03(ix), 9.04(iii),
9.04(vi), 9.04(xiii), 9.05(vii) (in respect of Intercompany Loans
outstanding to Wholly-Owned Foreign Subsidiaries of the Borrower and to the Captive Insurance
Company and the License Subsidiary), 9.05(viii) (in respect of cash capital contributions
to the Captive Insurance Company and the License Subsidiary), 9.05(xiii) and 9.07,
at the end of such fiscal quarter or year, as the case may be, (ii) if delivered with the financial
statements required by Section 9.01(c), set forth in reasonable detail the amount of (and
the calculations required to establish the amount of) Excess Cash Flow for the respective Excess
Cash Flow Payment Period as well as the Applicable Excess Cash Flow Repayment Percentage, and (iii)
certify that there have been no changes to Annexes C through F, and Annexes I through K, in each
case of the Security Agreement, Annexes A through F of the Borrower/Sub Pledge Agreement and
Annexes A through F of the Holdings Pledge Agreement, in each case since the



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Initial Borrowing Date
or, if later, since the date of the most recent certificate delivered pursuant to this Section
8.01(f), or if there have been any such changes, a list in reasonable detail of such changes
(but, in each case with respect to this clause
(iii), only to the extent that such changes are required to be reported to the Collateral
Agent pursuant to the terms of such Security Documents).




     (g) Notice of Default, Litigation and Material Adverse Effect. Promptly, and in any
event within three Business Days after any officer of Holdings or the Borrower obtains knowledge
thereof, notice of (i) the occurrence of any event which constitutes a Default or an Event of
Default, (ii) any litigation or governmental investigation (including, without limitation, by the
New York Insurance Department) or proceeding pending against Holdings or any of its Subsidiaries
(x) which, either individually or in the aggregate, could reasonably be expected to have a Material
Adverse Effect or (y) with respect to any Credit Document, or (iii) any other event, change or
circumstance that has had, or could reasonably be expected to have, a Material Adverse Effect.



     (h) Other Reports and Filings. Promptly after the filing or delivery thereof, copies
of all financial information, proxy materials and reports, if any, which Holdings or any of its
Subsidiaries shall publicly file with the Securities and Exchange Commission or any successor
thereto (the “SEC”) or deliver to holders (or any trustee, agent or other representative
therefor) of its material Indebtedness (including the Existing Holdings Notes, any Replacement
Holdings Notes or any Borrower Notes) pursuant to the terms of the documentation governing such
Indebtedness.



     (i) Environmental Matters. Promptly after any officer of Holdings or any of its
Subsidiaries obtains knowledge thereof, notice of one or more of the following environmental
matters to the extent that such environmental matters, either individually or when aggregated with
all other such environmental matters, could reasonably be expected to have a Material Adverse
Effect:




     (i) any pending or threatened Environmental Claim against Holdings or any of
its Subsidiaries or any Real Property owned, leased or operated by Holdings or any
of its Subsidiaries;




     (ii) any condition or occurrence on or arising from any Real Property owned,
leased or operated by Holdings or any of its Subsidiaries that (a) results in
noncompliance by Holdings or any of its Subsidiaries with any applicable
Environmental Law or (b) could reasonably be expected to form the basis of an
Environmental Claim against Holdings or any of its Subsidiaries or any such Real
Property;




     (iii) any condition or occurrence on any Real Property owned, leased or
operated by Holdings or any of its Subsidiaries that could reasonably be expected to
cause such Real Property to be subject to any restrictions on the ownership, lease,
occupancy, use or transferability by Holdings or any of its Subsidiaries of such
Real Property under any Environmental Law; and



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     (iv) the taking of any removal or remedial action in response to the actual or
alleged presence of any Hazardous Material on any Real Property owned, leased or
operated by Holdings or any of its Subsidiaries as required by any Environmental Law
or any governmental or other administrative agency; provided that in any
event Holdings shall deliver to each Lender all notices received by Holdings or any
of its Subsidiaries from any government or governmental agency under, or pursuant
to, CERCLA which identify Holdings or any of its Subsidiaries as potentially
responsible parties for remediation costs or which otherwise notify Holdings or any
of its Subsidiaries of potential liability under CERCLA.


All such notices shall describe in reasonable detail the nature of the claim, investigation,
condition, occurrence or removal or remedial action and Holdings’ or such Subsidiary’s response
thereto.




     (j) Other Information. From time to time, such other information or documents
(financial or otherwise) with respect to Holdings or any of its Subsidiaries as the Administrative
Agent or any Lender may reasonably request.



     8.02 Books, Records and Inspections; Annual Meetings. (a) Holdings and the Borrower will,
and the Borrower will cause each of its Subsidiaries to, keep proper books of record and accounts
in which full, true and correct entries in conformity with (and to the extent required by)
generally accepted accounting principles and all applicable requirements of law shall be made in
relation to its business and activities. Holdings and the Borrower will, and the Borrower will
cause each of its Subsidiaries to, permit, upon reasonable notice to Holdings, officers and
designated representatives of the Administrative Agent or the Required Lenders to visit and
inspect, under guidance of officers of Holdings or such Subsidiary, any of the properties of
Holdings or such Subsidiary, and to examine the books of account of Holdings or such Subsidiary and
discuss the affairs, finances and accounts of Holdings or such Subsidiary with, and be advised as
to the same by, its and their officers and independent accountants, all upon reasonable prior
notice and at such reasonable times and intervals and to such reasonable extent as the
Administrative Agent or the Required Lenders may reasonably request.



     (b) At a date to be mutually agreed upon between the Administrative Agent and the Borrower
occurring on or prior to the 150th day after the close of each fiscal year of the Borrower
(commencing with Borrower’s fiscal year ending December 31, 2007), the Borrower will, at the
request of the Administrative Agent, hold a meeting with all of the Lenders at which meeting will
be reviewed the financial results of Holdings and its Subsidiaries for the previous fiscal year and
the budgets presented for the current fiscal year of the Borrower.



     8.03 Maintenance of Property; Insurance. (a) Holdings and the Borrower will, and the
Borrower will cause each of its Subsidiaries to, (i) keep, in all material respects, all material
property necessary to the business of Holdings and its
Subsidiaries in good working order and condition, ordinary wear and tear excepted, (ii) maintain
with financially sound and reputable third party insurance companies insurance on all such property
and against all such risks as is consistent and in accordance with industry practice for companies
similarly situated owning similar properties and engaged in similar businesses as Holdings and its
Subsidiaries,



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and (iii) furnish to the Administrative Agent, upon its written request therefor,
full information as to the insurance carried. The provisions of this Section 8.03 shall be
deemed supplemental to, but not duplicative of, the provisions of any Security Documents that
require the maintenance of insurance.




     (b) Holdings and the Borrower will, and the Borrower will cause each of its Subsidiaries to,
at all times keep its property insured in favor of the Collateral Agent as loss payee and/or
additional insured, as applicable, and all policies or certificates (or certified copies thereof)
with respect to such insurance (and any other insurance maintained by Holdings and/or such
Subsidiaries) (i) shall be endorsed to the Collateral Agent’s satisfaction for the benefit of the
Collateral Agent (including, without limitation, by naming the Collateral Agent as loss payee
and/or additional insured, as applicable), (ii) shall state that such insurance policies shall not
be canceled without at least 30 days’ prior written notice thereof by the respective insurer to the
Collateral Agent, (iii) shall provide that the respective insurers irrevocably waive any and all
rights of subrogation with respect to the Collateral Agent and the other Secured Creditors, and
(iv) shall be deposited with the Collateral Agent.



     (c) If Holdings or any of its Subsidiaries shall fail to maintain insurance in accordance with
this Section 8.03, or if Holdings or any of its Subsidiaries shall fail to so endorse and
deposit all policies or certificates with respect thereto, the Administrative Agent shall have the
right (but shall be under no obligation) to procure such insurance and the Borrower agrees to
reimburse the Administrative Agent for all reasonable costs and expenses of procuring such
insurance.



     8.04 Existence; Franchises. Holdings and the Borrower will, and the Borrower will cause
each of its Subsidiaries to, do or cause to be done, all things necessary to preserve and keep in
full force and effect its existence and its material rights, franchises, licenses, permits,
copyrights, trademarks and patents; provided, however, that nothing in this
Section 8.04 shall prevent (i) sales of assets and other transactions by Holdings or any of
its Subsidiaries in accordance with Section 9.02 or (ii) the withdrawal by Holdings or any
of its Subsidiaries of its qualification as a foreign corporation, partnership or limited liability
company, as the case may be, in any jurisdiction if such withdrawal could not, either individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.



     8.05 Compliance with Statutes, etc. Holdings and the Borrower will, and the Borrower will
cause each of its Subsidiaries to, comply with all applicable statutes, regulations and orders of,
and all applicable restrictions imposed by, all governmental bodies, domestic or foreign, in
respect of the conduct of its business and the ownership of its property, except such
noncompliances as could not, either individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.



     8.06 Compliance with Environmental Laws. (a) Holdings and the Borrower will comply,
and the Borrower will cause each of its Subsidiaries to comply, with all Environmental Laws and
permits applicable to, or required by, the ownership, lease or use of its Real Property now or
hereafter owned, leased or operated by Holdings or any of its Subsidiaries, except such
noncompliances as could not, either individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect, and will promptly pay or cause to be paid all costs



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and expenses
incurred in connection with such compliance, and will keep or cause to be kept all such Real
Property free and clear of any Liens imposed pursuant to such Environmental Laws. Neither Holdings
nor any of its Subsidiaries will generate, use, treat, store, Release or dispose of, or permit the
generation, use, treatment, storage, Release or disposal of Hazardous Materials on any Real
Property now or hereafter owned, leased or operated by Holdings or any of its Subsidiaries, or
transport or permit the transportation of Hazardous Materials to or from any such Real Property,
except for Hazardous Materials generated, used, treated, stored, Released or disposed of at any
such Real Properties in compliance in all material respects with all applicable Environmental Laws
and as required in connection with the normal operation, use and maintenance of the business or
operations of Holdings or any of its Subsidiaries.




     (b) (i) After the receipt by the Administrative Agent or any Lender of any notice of the type
described in Section 8.01(i), (ii) at any time that Holdings or any of its Subsidiaries are
not in compliance with Section 8.06(a) or (iii) in the event that the Administrative Agent
or the Lenders have exercised any of the remedies pursuant to the last paragraph of Section
10, Holdings and the Borrower will (in each case) provide, at the sole expense of Holdings and
the Borrower and at the request of the Administrative Agent, an environmental site assessment
report concerning any Real Property owned, leased or operated by Holdings or any of its
Subsidiaries, prepared by an environmental consulting firm reasonably approved by the
Administrative Agent, indicating the presence or absence of Hazardous Materials and the potential
cost of any removal or remedial action in connection with such Hazardous Materials on such Real
Property. If Holdings or the Borrower fails to provide the same within 30 days after such request
was made, the Administrative Agent may order the same, the cost of which shall be borne by Holdings
and the Borrower, and Holdings and the Borrower shall grant and hereby grant to the Administrative
Agent and the Lenders and their respective agents access to such Real Property and specifically
grant the Administrative Agent and the Lenders an irrevocable non-exclusive license, subject to the
rights of tenants, to undertake such an assessment at any reasonable time upon reasonable notice to
Holdings or the Borrower, all at the sole expense of the Borrower.



     8.07 ERISA. As soon as possible and, in any event, within fifteen (15) Business Days after
Holdings, any Subsidiary of Holdings or any ERISA Affiliate knows of the occurrence of any of the
following to the extent that same, either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, Holdings will deliver to each of the Lenders a
certificate of an Authorized Financial Officer of Holdings setting forth the full details as to
such occurrence and the action, if any, that Holdings, such Subsidiary or such ERISA Affiliate is
required or proposes to take, together with any notices required or proposed to be given or filed
by Holdings, such
Subsidiary, the Plan administrator or such ERISA Affiliate to or with the PBGC or any other
governmental agency and any notices received by Holdings, such Subsidiary or such ERISA Affiliate
from the PBGC or any other government agency with respect thereto: that a Reportable Event has
occurred (except to the extent that Holdings has previously delivered to the Lenders a certificate
and notices (if any) concerning such event pursuant to the next clause hereof); that a contributing
sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan subject to Title IV of ERISA is
subject to the advance reporting requirement of PBGC Regulation Section 4043.61 (without regard to
subparagraph (b)(1) thereof), and an event described in subsection .62, .63, .64, .65, .66, .67 or
..68 of PBGC Regulation Section 4043 is reasonably expected to occur with respect to such Plan
within the following 30 days; that an



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accumulated funding deficiency, within the meaning of Section
412 of the Code or Section 302 of ERISA, has been incurred or an application may be or has been
made for a waiver or modification of the minimum funding standard (including any required
installment payments) or an extension of any amortization period under Section 412 of the Code or
Section 303 or 304 of ERISA with respect to a Plan; that any contribution required to be made with
respect to a Plan or Foreign Pension Plan has not been timely made; that a Plan has been or may be
terminated, reorganized, partitioned or declared insolvent under Title IV of ERISA; that a Plan has
an Unfunded Current Liability; that proceedings have been or are reasonably expected to be
instituted to terminate or appoint a trustee to administer a Plan which is subject to Title IV of
ERISA; that a proceeding has been instituted pursuant to Section 515 of ERISA to collect a
delinquent contribution to a Plan; that Holdings, any Subsidiary of Holdings or any ERISA Affiliate
will or is reasonably likely to incur any liability to or on account of the termination of or
withdrawal from a Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with
respect to a Plan under Section 401(a)(29), 4971, 4975 or 4980 of the Code or Section 409, 502(i)
or 502(l) of ERISA or with respect to a group health plan (as defined in Section 607(1) of ERISA or
Section 4980B(g)(2) of the Code) under Section 4980B of the Code; or that Holdings or any
Subsidiary of Holdings may incur any liability for retiree benefits pursuant to any employee
welfare benefit plan (as defined in Section 3(1) of ERISA) that provides benefits to retired
employees or other former employees (other than as required by the severance pay plans of Holdings
or any of its Subsidiaries or Section 601 of ERISA) or any Plan or any Foreign Pension Plan. In
addition, Holdings will deliver to each of the Lenders copies of any records, documents or other
information that must be furnished to the PBGC with respect to any Plan pursuant to Section 4010 of
ERISA. At the request of any Lender, Holdings will also deliver to such Lender a complete copy of
the annual report (on Internal Revenue Service Form 5500-series) of each Plan (including, to the
extent required, the related financial and actuarial statements and opinions and other supporting
statements, certifications, schedules and information) required to be filed with the Internal
Revenue Service. In addition to any certificates or notices delivered to the Lenders pursuant to
the first sentence hereof, copies of annual reports and any records, documents or other information
required to be furnished to the PBGC, and any material notices received by Holdings, any Subsidiary
of Holdings or any ERISA Affiliate with respect to any Plan or Foreign Pension Plan or received
from any governmental agency or plan administrator or sponsor or trustee with respect to any
multiemployer plan (as defined in Section 4001(a)(3) of ERISA), shall be delivered to the Lenders
no later than ten (10) days after the date such records, documents and/or information has been
furnished to the PBGC or any other governmental agency or such notice has been received by
Holdings, the respective Subsidiary or the ERISA Affiliate, as applicable. Holdings will ensure,
and cause each of its applicable Subsidiaries to
ensure, that all Foreign Pension Plans administered by it or into which it makes payments obtains
or retains (as applicable) registered status under and as required by applicable law and is
administered in a timely manner in all respects in compliance with all applicable laws except where
the failure to do any of the foregoing could not, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.




     8.08 End of Fiscal Years; Fiscal Quarters. Holdings and the Borrower will, and the
Borrower will cause (i) each of its, and each of its Domestic Subsidiaries’, fiscal years to end on
December 31 of each year and (ii) each of its, and each of its Domestic Subsidiaries’, fiscal
quarters to end on March 31, June 30, September 30 and December 31, of each fiscal year.



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     8.09 Performance of Obligations. Holdings and the Borrower will, and the Borrower will
cause each of its Subsidiaries to, perform all of its obligations under the terms of each mortgage,
indenture, security agreement, loan agreement or credit agreement and each other agreement,
contract or instrument by which it is bound, except such non-performances as could not, either
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.



     8.10 Payment of Taxes. Holdings and the Borrower will pay and discharge, and the Borrower
will cause each of its Subsidiaries to pay and discharge, all taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits or upon any properties belonging to
it, in each case on a timely basis, and all lawful claims which, if unpaid, might become a Lien or
charge upon any properties of Holdings or any of its Subsidiaries not otherwise permitted under
Section 9.01(i); provided that neither Holdings nor any of its Subsidiaries shall
be required to pay any such tax, assessment, charge, levy or claim which is being contested in good
faith and by proper proceedings if it has maintained adequate reserves with respect thereto in
accordance with generally accepted accounting principles.



     8.11 Use of Proceeds. The Borrower will use the proceeds of the Loans only as provided in
Section 7.08.



     8.12 Additional Security; Further Assurances; etc. (a) Holdings and the Borrower will,
and the Borrower will cause each of the other Credit Parties to, grant to the Collateral Agent for
the benefit of the Secured Creditors security interests in such assets and properties (leased or
owned) of the Borrower and the other Credit Parties as are not covered by the original Security
Documents and as may be reasonably requested from time to time by the Administrative Agent or the
Required Lenders (collectively, the “Additional Security Documents”); provided,
however, until such time as the Existing Holdings Notes have been repaid in full (or the
limitation on Liens covenant under the Existing Holdings Note Indenture has been eliminated),
Holdings only shall be required to pledge the Equity Interests of its Subsidiaries pursuant to this
Section 8.12. All such security interests shall be granted
pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent
and shall constitute valid and enforceable perfected security interests superior to and prior to
the rights of all third Persons and subject to no other Liens except for Permitted Liens. The
Additional Security Documents or instruments related thereto shall be duly recorded or filed in
such manner and in such places as are 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
Security Documents and all taxes, fees and other charges payable in connection therewith shall be
paid in full.



     (b) Holdings and the Borrower will, and the Borrower will cause each of the other Credit
Parties to, at the expense of Holdings and the Borrower, make, execute, endorse, acknowledge, file
and/or deliver to the Collateral Agent from time to time such vouchers, invoices, schedules,
confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of
attorney, certificates, real property surveys, reports and other assurances or instruments and take
such further steps relating to the Collateral covered by any of the Security Documents as the
Collateral Agent may reasonably require pursuant to this Section 8.12. Additionally, upon
the request of the Collateral Agent or the Required Lenders, Holdings



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and the Borrower will take,
or the Borrower will cause to be taken, such action as may be requested 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 Collateral
located outside the U.S. owned by Holdings or the other Credit Parties, in each case to the extent
such actions are permitted to be taken under the laws of the applicable jurisdictions.
Furthermore, Holdings will cause to be delivered to the Collateral Agent such opinions of counsel,
title insurance, flood certifications and other related documents as may be reasonably requested by
the Collateral Agent to assure itself that this Section 8.12 has been complied with.




     (c) The Borrower agrees to cause each other Credit Party established or created in accordance
with Section 9.12 or acquired pursuant to Section 8.16, within 10 Business Days
after any such establishment, creation or acquisition, to execute and deliver a counterpart of a
Joinder Agreement pursuant to which such Credit Party shall become a party to the Subsidiaries
Guaranty, the Borrower/Sub Pledge Agreement and the Security Agreement.



     (d) Except as otherwise provided in clause (c) of this Section 8.12, Holdings and the
Borrower agree that each action required above by this Section 8.12 shall be completed as
soon as reasonably practicable, but in no event later than 30 days after such action is requested
to be taken by the Administrative Agent, the Collateral Agent or the Required Lenders.



     8.13 Foreign Subsidiaries Security. If following a change in the relevant sections of the
Code or the regulations, rules, rulings, notices or other official pronouncements issued or
promulgated thereunder, counsel for Holdings or the Borrower, as applicable, reasonably acceptable
to the Administrative Agent does not within 30 days after a request from the Administrative Agent
or the Required Lenders deliver to the Administrative Agent evidence, in form and substance
reasonably satisfactory to the Administrative Agent, with respect to any Foreign Subsidiary which
has not already had all of its stock pledged pursuant to either Pledge Agreement that (i) a pledge
of 66-2/3% or more of the
total combined voting power of all classes of capital stock of such Foreign Subsidiary entitled to
vote or, in the case of a Foreign Subsidiary whose capital stock is held by another Foreign
Subsidiary, a pledge of any of the capital stock of such Foreign Subsidiary, (ii) the entering into
by such Foreign Subsidiary of a security agreement in substantially the form of the Security
Agreement, (iii) the entering into by such Foreign Subsidiary of a pledge agreement in
substantially the form of the Borrower/Sub Pledge Agreement and (iv) the entering into by such
Foreign Subsidiary of a guaranty in substantially the form of the Subsidiaries Guaranty, in any
such case would cause (A) the undistributed earnings of such Foreign Subsidiary (or such Foreign
Subsidiary’s parent or indirect parent to the extent that such parent is also a Foreign Subsidiary)
as determined for U.S. federal income tax purposes to be treated as a deemed dividend to such
Foreign Subsidiary’s United States parent for federal income tax purposes or (B) other material
adverse U.S. federal income tax consequences to the Credit Parties, then in the case of a failure
to deliver the evidence described in clause (i) above, that portion of such Foreign Subsidiary’s
outstanding capital stock not theretofore pledged pursuant to the applicable Pledge Agreement shall
be pledged to the Collateral Agent for the benefit of the Secured Creditors pursuant to such Pledge
Agreement (or another pledge agreement in substantially similar form, if needed), and in the case
of a failure to deliver the evidence described in clause (ii) or (iii) above, such Foreign
Subsidiary shall execute and deliver the Security Agreement (or another security agreement in
substantially similar form,



-56-









 




if needed) or the Borrower/Sub Pledge Agreement (or another pledge
agreement in substantially similar form, if needed), as the case may be, granting to the Collateral
Agent for the benefit of the Secured Creditors a security interest in all of such Foreign
Subsidiary’s assets or the equity interests and promissory notes owned by such Foreign Subsidiary,
as the case may be, and securing the Obligations of the Borrower under the Credit Documents and
under any Interest Rate Protection Agreement and, in the event the Subsidiaries Guaranty shall have
been executed by such Foreign Subsidiary, the obligations of such Foreign Subsidiary thereunder,
and in the case of a failure to deliver the evidence described in clause (iv) above, such Foreign
Subsidiary shall execute and deliver the Subsidiaries Guaranty (or another guaranty in
substantially similar form, if needed), guaranteeing the Obligations of the Borrower under the
Credit Documents and under any Interest Rate Protection Agreement, in each case to the extent that
the entering into of such Security Agreement, Borrower/Sub Pledge Agreement or Subsidiaries
Guaranty (or substantially similar document) is permitted by the laws of the respective foreign
jurisdiction and with all documents delivered pursuant to this Section 8.13 to be in form
and substance reasonably satisfactory to the Administrative Agent and the Required Lenders.




     8.14 Ownership of Subsidiaries; etc. Except as otherwise permitted by Section
9.05(xiii) and the definition of “Permitted Acquisition”, Holdings and the Borrower
will, and the Borrower will cause each of its Subsidiaries to, own 100% of the capital stock and
other Equity Interests of each of their Subsidiaries (other than, in the case of Foreign
Subsidiaries, directors’ qualifying shares and other nominal amounts held by local nationals, in
each case to the extent required by applicable law).



     8.15 Maintenance of Corporate Separateness. Holdings and the Borrower will, and the Borrower will cause each of its Subsidiaries to, satisfy
in all material respects customary corporate formalities, including the holding of regular board of
directors’ and shareholders’ meetings or action by directors or shareholders without a meeting and
the maintenance of corporate offices and records. Neither Holdings nor any of its Subsidiaries
will take any action, or conduct its affairs in a manner, which is likely to result in the
corporate existence of Holdings or any of its Subsidiaries being ignored, or in the assets and
liabilities of Holdings or any of its Subsidiaries being substantively consolidated with those of
any other such Person in a bankruptcy, reorganization or other insolvency proceeding.



     8.16 Permitted Acquisitions. (a) Subject to the provisions of this Section 8.16
and the requirements contained in the definition of Permitted Acquisition, the Borrower and the
Subsidiary Guarantors that are Wholly-Owned Domestic Subsidiaries may from time to time effect
Permitted Acquisitions, so long as (in each case except to the extent the Required Lenders
otherwise specifically agree in writing in the case of a specific Permitted Acquisition): (i) no
Default or Event of Default shall have occurred and be continuing at the time of the consummation
of the proposed Permitted Acquisition or immediately after giving effect thereto; (ii) the Borrower
shall have given to the Administrative Agent and the Lenders at least 10 Business Days’ (or such
shorter period of time as may be reasonably acceptable to the Administrative Agent) prior written
notice of any Permitted Acquisition, which notice shall describe in reasonable detail the principal
terms and conditions of such Permitted Acquisition; (iii) the Borrower shall have provided to the
Administrative Agent and the Lenders as soon as available but not later than five Business Days (or
such shorter period of time as may be reasonably acceptable to the Administrative Agent) after the
execution thereof, a copy of any




-57-









 




executed purchase agreement or similar agreement (and the exhibits
and schedules thereto) with respect to each such Permitted Acquisition; (iv) the Lenders shall have
received (x) in the case of a proposed Permitted Acquisition in which the aggregate Maximum
Permitted Consideration is at least $20,000,000, audited year end financial statements for at least
the previous fiscal year and, to the extent available, interim unaudited quarterly financial
statements for the then current fiscal year of the Acquired Entity or Business being acquired
pursuant to such proposed Permitted Acquisition and (y) in the case of each proposed Permitted
Acquisition, a pro forma consolidated balance sheet of Holdings and its
Subsidiaries as of the last day of the most recently ended fiscal quarter of Holdings and a
pro forma consolidated statement of income of Holdings and its Subsidiaries for the
most recently ended four fiscal quarter period, in each case on a Pro Forma Basis
after giving effect to such proposed Permitted Acquisition; (v) calculations are made by the
Borrower showing compliance with the financial covenant contained in Section 9.07 for the
respective Calculation Period on a Pro Forma Basis as if the respective Permitted
Acquisition (as well as all other Permitted Acquisitions theretofore consummated after the first
day of such Calculation Period) had occurred on the first day of such Calculation Period
(regardless of whether Section 9.07 is otherwise required to be complied with at such
time), and such recalculations shall show that such financial covenant would have been complied
with as of the last day of such Calculation Period if the respective Permitted Acquisition had
occurred on the first day of such Calculation Period; (vi) all representations and warranties
contained herein and in the other Credit 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 the respective Permitted Acquisition (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; (vii) the
Maximum Permitted Consideration for the respective Permitted Acquisition, when added to the
aggregate Maximum Permitted Consideration paid for all other Permitted Acquisitions theretofore or
then being consummated, does not exceed the Permitted Acquisition Basket Amount at such time;
(viii) after giving effect to such proposed Permitted Acquisition and the payment of all amounts
(including fees and expenses) owing in connection therewith, the Total Unutilized Revolving Loan
Commitment shall equal or exceed the sum of (x) $15,000,000 plus (y) an amount equal to the
aggregate amount reasonably likely to be payable in respect of all post-closing purchase price
adjustments required or which will be required in connection with such Permitted Acquisition (and
all other Permitted Acquisitions for which such purchase price adjustments may be required to be
made) as determined by the Borrower in good faith; and (ix) the Borrower shall have delivered to
the Administrative Agent and each Lender a certificate executed by an Authorized Financial Officer
thereof, certifying to the best of such officer’s knowledge, compliance with the requirements of
preceding clauses (i) through (viii), inclusive, and containing the calculations (in reasonable
detail) required by preceding clauses (v), (vi) and (viii).




     (b) At the time of each Permitted Acquisition involving the creation or acquisition of a
Subsidiary, or the acquisition of capital stock or other Equity Interest of any
Person, the capital stock or other Equity Interests thereof created or acquired in connection
with such Permitted Acquisition shall be pledged for the benefit of the Secured Creditors pursuant
to (and to the extent required by) the Borrower/Sub Pledge Agreement.



     (c) The Borrower will cause each Subsidiary which is formed to effect, or is acquired pursuant
to, a Permitted Acquisition to comply with, and to execute and deliver all of



 -58- 









 







the documentation as
and to the extent required by, Sections 8.12 and 9.12, to the reasonable
satisfaction of the Administrative Agent.



     (d) The consummation of each Permitted Acquisition shall be deemed to be a representation and
warranty by each of Holdings and the Borrower that the certifications pursuant to this Section
8.16 are true and correct and that all conditions thereto have been satisfied and that same is
permitted in accordance with the terms of this Agreement, which representation and warranty shall
be deemed to be a representation and warranty for all purposes hereunder, including, without
limitation, Sections 7 and 10.



     8.17 Cash on Hand at the Captive Insurance Company and the License Subsidiary. (a) If at
any time the Captive Insurance Company holds cash or Cash Equivalents in excess of $2,000,000 in
the aggregate for a period of more than five consecutive Business Days, the Borrower will cause the
Captive Insurance Company to immediately pay a cash Dividend up to the Borrower in an amount equal
to such excess.



     (b) If at any time the License Subsidiary (to the extent that it is a Subsidiary of the
Captive Insurance Company) holds cash or Cash Equivalents in excess of $500,000 in the aggregate
for a period of more than five consecutive Business Days, the Borrower will cause the License
Subsidiary to immediately pay a cash Dividend up to the Borrower in an amount equal to such excess.



     8.18 Existing Senior Notes Redemption. The Borrower will, on the Existing Senior Notes
Redemption Date, cause the Existing Senior Notes Redemption to occur and the Existing Senior Notes
Indenture to be satisfied and discharged in accordance with the terms of Section 11.1 thereof.



     8.19 Contributions. Holdings will contribute as a common equity contribution to the
capital of the Borrower upon Holdings’ receipt thereof, any cash proceeds received by Holdings from
any asset sale, any incurrence of Indebtedness (other than from the issuance or incurrence of
Replacement Holdings Notes the proceeds of which are used for the purposes described in Section
9.04(xi)), any Recovery Event, any issuance or sale of its equity (other than any sale or
issuance of its equity the proceeds of which are promptly used to refinance, replace or redeem
Existing Holdings Notes as permitted by Section 9.08(i)), any cash capital contributions or
any tax refunds (other
than any tax refunds that are repaid to the Borrower pursuant to the Holdings Tax Sharing
Agreement).



     SECTION 9. Negative Covenants. Each of Holdings (as to itself only) and the Borrower
(as to itself and each of its Subsidiaries) hereby covenants and agrees that on and after the
Effective Date and until the Total Commitment and all Letters of Credit have terminated and the
Loans, Notes and Unpaid Drawings (in each case, together with interest thereon), Fees and all other
Obligations (other than any indemnities described in Section 13.13 which are not then due
and payable) incurred hereunder and thereunder, are paid in full:



     9.01 Liens. Neither Holdings nor the Borrower will, nor will the Borrower permit any of
its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with respect to any
property or assets (real or personal, tangible or intangible) of Holdings or any of



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its
Subsidiaries, whether now owned or hereafter acquired, or sell any such property or assets subject
to an understanding or agreement, contingent or otherwise, to repurchase such property or assets
(including sales of accounts receivable with recourse to Holdings or any of its Subsidiaries), or
assign any right to receive income or permit the filing of any financing statement under the UCC or
any other similar notice of Lien under any similar recording or notice statute; provided
that the provisions of this Section 9.01 shall not prevent the creation, incurrence,
assumption or existence of the following (Liens described below are herein referred to as
“Permitted Liens”):




     (i) inchoate Liens for taxes, assessments or governmental charges or levies not yet due
or Liens for taxes, assessments or governmental charges or levies being contested in good
faith and by appropriate proceedings for which adequate reserves have been established in
accordance with generally accepted accounting principles;




     (ii) Liens in respect of property or assets of Holdings or any of its Subsidiaries
imposed by law, which were incurred in the ordinary course of business and do not secure
Indebtedness for borrowed money, such as carriers’, warehousemen’s, materialmen’s and
mechanics’ liens and other similar Liens arising in the ordinary course of business, and (x)
which do not in the aggregate materially detract from the value of Holdings’ or such
Subsidiary’s property or assets or materially impair the use thereof in the operation of the
business of Holdings or such Subsidiary or (y) which are being contested in good faith by
appropriate proceedings, which proceedings have the effect of preventing the forfeiture or
sale of the property or assets subject to any such Lien;




     (iii) Liens in existence on the Initial Borrowing Date which are listed, and the
property subject thereto described, in Schedule X, but only to the respective date,
if any, set forth in such Schedule X for the removal, replacement and termination of
any such Liens without giving effect to any renewals, replacements and extensions thereof;




     (iv) Liens created pursuant to the Security Documents;




     (v) licenses, sublicenses, leases or subleases granted to other Persons not materially
interfering with the conduct of the business of Holdings and its Subsidiaries taken as a
whole;




     (vi) Liens upon assets of the Borrower or any of its Subsidiaries subject to
Capitalized Lease Obligations to the extent such Capitalized Lease Obligations are permitted
by Section 9.04(iii), provided that (x) such Liens only serve to secure the
payment of Indebtedness arising under such Capitalized Lease Obligation and (y) the Lien
encumbering the asset giving rise to the Capitalized Lease Obligation does not encumber any
asset of Holdings or any other asset of the Borrower or any Subsidiary of the Borrower;




     (vii) Liens placed upon equipment or machinery acquired after the Initial Borrowing
Date and used in the ordinary course of business of the Borrower or any of its Subsidiaries
and placed at the time of the acquisition thereof by the Borrower or such Subsidiary or
within 90 days thereafter to secure Indebtedness incurred to pay all or a



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portion of the
purchase price thereof or to secure Indebtedness incurred solely for the purpose of
financing the acquisition of any such equipment or machinery or extensions, renewals or
replacements of any of the foregoing for the same or a lesser amount, provided that
(x) the Indebtedness secured by such Liens is permitted by Section 9.04(iii) and (y)
in all events, the Lien encumbering the equipment or machinery so acquired does not encumber
any asset of Holdings or any other asset of the Borrower or any Subsidiary of the Borrower;




     (viii) easements, rights-of-way, restrictions, encroachments and other similar charges
or encumbrances, and minor title deficiencies, in each case not securing Indebtedness and
not materially interfering with the ordinary conduct of the business of Holdings or any of
its Subsidiaries;




     (ix) Liens arising from precautionary UCC financing statement filings regarding
operating leases entered into in the ordinary course of business;




     (x) Liens arising out of the existence of judgments or awards in respect of which
Holdings or any of its Subsidiaries shall in good faith be prosecuting an appeal or
proceedings for review and in respect of which there shall have been secured a subsisting
stay of execution pending such appeal or proceedings, provided that the aggregate
amount of all cash (including the stated amount of all letters of credit supporting such
judgments or awards) and the fair market value of all other property subject to such Liens
does not exceed $5,000,000 at any time outstanding;




     (xi) statutory and common law landlords’ liens under leases to which the Borrower or
any of its Subsidiaries is a party;




     (xii) Liens (other than Liens imposed under ERISA) incurred in the ordinary course of
business in connection with workers’ compensation claims, unemployment insurance and social
security benefits and Liens securing the performance of bids, tenders, leases and contracts
in the ordinary course of business, statutory obligations,
surety bonds, performance bonds and other obligations of a like nature incurred in the
ordinary course of business and consistent with past practice (exclusive of appeal bonds and
obligations in respect of the payment for borrowed money);




     (xiii) Liens on property or assets acquired pursuant to a Permitted Acquisition, or on
property or assets of a Subsidiary of the Borrower in existence at the time such Subsidiary
is acquired pursuant to a Permitted Acquisition, provided that (x) any Indebtedness
that is secured by such Liens is permitted to exist under Section 9.04(vi), and (y)
such Liens are not incurred in connection with, or in contemplation or anticipation of, such
Permitted Acquisition and do not attach to any asset of Holdings or any other asset of the
Borrower or any of its Subsidiaries;




     (xiv) Liens on property or assets acquired pursuant to a Permitted Acquisition (other
than the capital stock or other Equity Interests of any Subsidiary of the Borrower) securing
any Seller Financing incurred by the Borrower or a Subsidiary Guarantor to finance (in whole
or in part) the respective Permitted Acquisition, provided that (x) such



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Liens only
serve to secure the Seller Financing incurred as part of such Permitted Acquisition, (y) any
Seller Financing that is secured by such Liens is permitted to exist under Section
9.04(iii), and (z) such Liens do not attach to any asset of Holdings or any other asset
of the Borrower or any of its Subsidiaries; and




     (xv) Liens not otherwise permitted pursuant to this Section 9.01 which secure
obligations of the Borrower or any of its Subsidiaries permitted under this Agreement (other
than Indebtedness for, or in respect of, borrowed money or for the deferred purchase price
of a Permitted Acquisition or an Investment) not exceeding $20,000,000 in the aggregate at
any time outstanding and which apply to property and/or assets of the Borrower or any of its
Subsidiaries with an aggregate fair market value (as determined by the Borrower in good
faith) not to exceed at any time the amount referenced above in this clause (xv).


In connection with the granting of Liens of the type described in clauses (vi), (vii), (xiii) and
(xiv) of this Section 9.01 by the Borrower of any of its Subsidiaries, the Administrative
Agent and the Collateral Agent shall be authorized to take any actions deemed appropriate by it in
connection therewith (including, without limitation, by executing appropriate lien releases or lien
subordination agreements in favor of the holder or holders of such Liens, in either case solely
with respect to the item or items of equipment or other assets subject to such Liens).




          9.02 Consolidation, Merger, Purchase or Sale of Assets, etc. Neither Holdings nor the
Borrower will, nor will the Borrower permit any of its Subsidiaries to, wind up, liquidate or
dissolve its affairs or enter into any partnership, joint venture, or transaction of merger or
consolidation, or convey, sell, lease or otherwise dispose of all or any part of its property or
assets, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or
a series of related transactions) any part of the property or assets (other than purchases or other
acquisitions of inventory, materials, equipment and intellectual property in the ordinary course of
business) of any Person (or agree to do any of the foregoing at any future time), except that:





     (i) Capital Expenditures by the Borrower and its Subsidiaries shall be permitted (other
than Capital Expenditures constituting Permitted Acquisition unless same are independently
permitted by Section 8.16);




     (ii) each of the Borrower and its Subsidiaries may make sales of inventory in the
ordinary course of business;




     (iii) Investments may be made to the extent permitted by Section 9.05;




     (iv) the Borrower and its Subsidiaries may consummate the Swiss Clubs Sale and may sell
other assets (including the capital stock or other Equity Interests of any Subsidiary but
otherwise subject to the proviso to this clause (iv) in the case of a Subsidiary Guarantor),
so long as (v) no Default or Event of Default then exists or would result therefrom, (w)
each such sale is in an arm’s-length transaction and the Borrower or the respective
Subsidiary receives at least fair market value (as determined in good faith by the Borrower
or such Subsidiary, as the case may be), (x) the consideration received by the Borrower or
such Subsidiary consists of at least 75% cash and is paid at the time



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of the closing of such
sale, (y) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the
extent) required by Section 4.02(d) and (z) the aggregate amount of the proceeds
received from all assets sold pursuant to this clause (iv) (exclusive of any proceeds
received from the Swiss Clubs Sale) shall not exceed $25,000,000 in any fiscal year of
Holdings, provided that the sale of the capital stock or other Equity Interests of
any Subsidiary Guarantor shall not be permitted pursuant to this clause (iv) unless such
sale is for all of the outstanding capital stock or other Equity Interests of such
Subsidiary Guarantor;




     (v) each of the Borrower and its Subsidiaries may lease (as lessee) or license (as
licensee) real or personal property (so long as any such lease or license does not create a
Capitalized Lease Obligation except to the extent permitted by Section 9.04(iii));




     (vi) each of the Borrower and its Subsidiaries may sell or discount, in each case
without recourse and in the ordinary course of business, accounts receivable arising in the
ordinary course of business, but only in connection with the compromise or collection
thereof and not as part of any financing transaction;




     (vii) each of the Borrower and its Subsidiaries may grant licenses, sublicenses, leases
or subleases to other Persons not materially interfering with the conduct of the business of
the Borrower and its Subsidiaries taken as a whole, in each case so long as no such grant
otherwise affects the Collateral Agent’s security interest in the asset or property subject
thereto;




     (viii) any Subsidiary of the Borrower (other than the Captive Insurance Company and the
License Subsidiary) may merge with and into, or be dissolved or liquidated into, the
Borrower or any Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary
Guarantor so long as (i) in the case of any such merger, dissolution or liquidation
involving the Borrower, the Borrower is the surviving Person of any such merger, dissolution
or liquidation, (ii) in all other cases, a Wholly-Owned
Domestic Subsidiary which is a Subsidiary Guarantor is the surviving Person of any such
merger, dissolution or liquidation, and (iii) in all cases, the security interests granted
to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security
Documents in the assets of such Subsidiary shall remain in full force and effect and
perfected (to at least the same extent as in effect immediately prior to such merger,
dissolution or liquidation);




     (ix) Permitted Acquisitions may be made to the extent permitted by Section
8.16;




     (x) the Borrower and its Subsidiaries may sell or exchange specific items of equipment
(including pursuant to trade up/trade in transactions), so long as the purpose of each such
sale or exchange is to acquire (and results within 90 days of such sale or exchange in the
acquisition of) replacement items of equipment which are the functional equivalent of the
item of equipment so sold or exchanged;



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     (xi) (A) the Borrower may transfer assets to any Wholly-Owned Domestic Subsidiary of
the Borrower which is a Subsidiary Guarantor (other than the Captive Insurance Company and
the License Subsidiary) and any Subsidiary of the Borrower may transfer assets to the
Borrower or to any Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary
Guarantor (other than the Captive Insurance Company and the License Subsidiary) and (B) the
Borrower and its Subsidiaries may transfer intellectual property to the License Subsidiary,
in each case so long as the security interests granted to the Collateral Agent for the
benefit of the Secured Creditors pursuant to the Security Documents in the assets so
transferred shall remain in full force and effect and perfected (to at least the same extent
as in effect immediately prior to such transfer); and




     (xii) the Borrower and its Subsidiaries may, in the ordinary course of business, sell,
transfer or otherwise dispose of patents, trademarks, service marks, trade names and
copyrights which, in the reasonable judgment of the Borrower or such Subsidiary, are
determined to be uneconomical, negligible or obsolete in the conduct of its business.


To the extent the Required Lenders (or all of the Lenders, as the case may be) waive the provisions
of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold
as permitted by this Section 9.02 (other than to Holdings or a Subsidiary thereof), such
Collateral shall be sold free and clear of the Liens created by the Security Documents, and the
Administrative Agent and the Collateral Agent shall be authorized to take any actions deemed
appropriate in order to effect the foregoing.




          9.03 Dividends. Neither Holdings nor the Borrower will, nor will the Borrower permit any
of its Subsidiaries to, authorize, declare or pay any Dividends with respect to Holdings or any of
its Subsidiaries, except that:





     (i) any Subsidiary of the Borrower may pay cash Dividends to the Borrower or to any
Wholly-Owned Domestic Subsidiary of the Borrower and any Foreign
Subsidiary of the Borrower also may pay cash Dividends to any Wholly-Owned Foreign
Subsidiary of the Borrower;




     (ii) any non-Wholly-Owned Subsidiary of the Borrower may pay cash Dividends to its
shareholders, partners or members generally so long as the Borrower or its respective
Subsidiary which owns the Equity Interest in the Subsidiary paying such Dividends receives
at least its proportionate share thereof (based upon its relative holding of the Equity
Interest in the Subsidiary paying such Dividends and taking into account the relative
preferences, if any, of the various classes of Equity Interests of such Subsidiary;




     (iii) the Borrower may pay cash Dividends to Holdings so long as Holdings promptly uses
such proceeds solely to (and Holdings may) redeem or repurchase outstanding shares of
Holdings’ common stock (or options to purchase such common stock) following the death,
disability, retirement or termination of employment of officers, directors or employees of
Holdings or any of its Subsidiaries, provided that (x) neither Holdings nor any of
its Subsidiaries shall have any obligations in respect of such redemptions or repurchases,
(y) the aggregate amount of Dividends pursuant to this



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Section 9.03(iii) shall not
exceed (I) $750,000 in any fiscal year of Holdings plus (II) the aggregate amount of
cash proceeds received by Holdings after the Initial Borrowing Date in connection with the
issuance of Holdings’ common stock (or options to purchase such common stock) to officers,
directors or employees of Holdings and its Subsidiaries plus (III) any cash proceeds
received by Holdings or the Borrower from key man life insurance policies obtained solely
for the purpose of making such redemptions or repurchases and (z) at the time of any
Dividend (including any such redemption or repurchase) permitted to be made pursuant to this
Section 9.03(iii), no Default or Event of Default shall then exist or result
therefrom;




     (iv) Holdings may pay regularly scheduled Dividends on its Qualified Preferred Stock
pursuant to the terms thereof solely through the issuance of additional shares of such
Qualified Preferred Stock rather than in cash;




     (v) the Borrower may pay cash Dividends to Holdings so long as the proceeds thereof are
promptly used by Holdings solely to pay operating expenses incurred in the ordinary course
of business (including, without limitation, professional fees and expenses) and other
similar corporate overhead costs and expenses, provided that the aggregate amount of
all cash Dividends paid pursuant to this clause (v) shall not exceed $1,000,000 in any
fiscal year of Holdings;




     (vi) so long as no Default or Event of Default then exists or would result therefrom,
from and after February 1, 2009, the Borrower may pay cash Dividends to Holdings at the
times, and in the amounts, necessary to permit Holdings (and Holdings shall use such
proceeds solely) to pay regularly scheduled cash interest on the Existing Holdings Notes;




     (vii) so long as no Default or Event of Default then exists or would result therefrom,
from and after the fifth anniversary of the issuance of any Replacement Holdings Notes, the
Borrower may pay cash Dividends to Holdings at the times, and in
the amounts, necessary to permit Holdings (and Holdings shall use such proceeds solely)
to pay regularly scheduled cash interest on any Replacement Holdings Notes;




     (viii) the Borrower may use the Net Cash Proceeds received by it from the issuance of
any Borrower Notes to pay a Dividend to Holdings so long as Holdings uses all of the
proceeds therefrom on the date of receipt thereof to refinance, redeem or purchase
outstanding Existing Holdings Notes; and




     (ix) so long as no Default or Event of Default then exists or would result therefrom,
the Borrower may pay additional cash Dividends to Holdings, and Holdings may pay cash
Dividends promptly upon its receipt of such cash Dividends from the Borrower, in an
aggregate amount not to exceed $25,000,000 for all Dividends paid pursuant to this clause
(ix).



          9.04 Indebtedness. Neither Holdings nor the Borrower will, nor will the Borrower permit
any of its Subsidiaries to, contract, create, incur, assume or suffer to exist any Indebtedness,
except:





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     (i) Indebtedness incurred pursuant to this Agreement and the other Credit Documents;




     (ii) Indebtedness of the Borrower under Interest Rate Protection Agreements entered
into with respect to other Indebtedness permitted under this Section 9.04 so long as
the entering into of such Interest Rate Protection Agreements are bona fide hedging
activities and are not for speculative purposes;




     (iii) Indebtedness of the Borrower and its Subsidiaries evidenced by Capitalized Lease
Obligations, purchase money Indebtedness described in Section 9.01(vii) and Seller
Financing, provided that in no event shall the sum of the aggregate principal amount
of all Capitalized Lease Obligations, purchase money Indebtedness and Seller Financing
permitted by this clause (iii) exceed $20,000,000 at any time outstanding;




     (iv) unsecured Indebtedness of Holdings under the Existing Holdings Note Documents in
an aggregate principal amount not to exceed that amount outstanding on the Initial Borrowing
Date (as such amount (x) may continue to accrete in accordance with the terms thereof and
(y) may be reduced by any repayments of principal made after the Initial Borrowing Date);




     (v) Existing Indebtedness outstanding on the Initial Borrowing Date and listed on
Schedule VII (as reduced by any repayments thereof on or after the Initial Borrowing
Date), without giving effect to any subsequent extension, renewal or refinancing thereof
(provided that the Existing Senior Notes shall only be permitted to remain
outstanding through the Existing Senior Notes Redemption Date);




     (vi) Indebtedness of a Subsidiary of the Borrower acquired pursuant to a Permitted
Acquisition or Indebtedness assumed at the time of a Permitted Acquisition
involving the purchase of an asset or assets securing such Indebtedness) (such
Indebtedness, in either case, “Permitted Acquired Debt”), provided that (x)
such Indebtedness was not incurred in connection with, or in anticipation or contemplation
of, such Permitted Acquisition and (y) the aggregate principal amount of all Indebtedness
permitted by this clause (vi) shall not exceed $10,000,000 at any one time outstanding;




     (vii) intercompany Indebtedness among the Borrower and its Subsidiaries to the extent
permitted by Sections 9.05(vii) and (xiii);




     (viii) Indebtedness consisting of guaranties by the Borrower of lease obligations of
Wholly-Owned Subsidiaries of the Borrower;




     (ix) Contingent Obligations of the Borrower or any Subsidiary Guarantor with respect to
Indebtedness and lease obligations of the Borrower or any Subsidiary Guarantor otherwise
permitted under this Agreement;




     (x) Indebtedness of the Borrower or any of its Subsidiaries under any foreign exchange
contracts or currency swap agreements constituting Other Hedging Agreements entered into in
connection with the Borrower’s or any of its Subsidiaries foreign



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operations so long as
entering into of such Other Hedging Agreements are bona fide hedging activities and are not
for speculative purposes;




     (xi) unsecured Indebtedness of Holdings the proceeds of which are used to refinance,
redeem or purchase outstanding Existing Holdings Notes and to pay all fees and expenses
associated with the incurrence or issuance of such Indebtedness so long as (i) no Default or
Event of Default then exists or would result therefrom, (ii) neither the Borrower nor any
Subsidiary of the Borrower shall guaranty such Indebtedness, (iii) the aggregate principal
amount thereof does not exceed the aggregate principal amount (or the then accreted value)
of the Existing Holdings Notes being refinanced, redeemed or purchased (plus any accrued and
unpaid interest thereon, any premiums required to be paid in connection therewith and the
reasonable fees and expenses associated with the issuance or incurrence of such
Indebtedness), (iv) the terms of such Indebtedness do not require the payment of cash
interest prior to the fifth anniversary of the issuance or incurrence thereof, (v) such
Indebtedness does not have any scheduled amortization, maturity, redemption, sinking fund or
similar payment prior to the one year anniversary of the latest Maturity Date and (vi) all
of the terms and conditions thereof (other than interest rate) are no more restrictive on
Holdings and its Subsidiaries, or less favorable to the Lenders, than the terms and
conditions of the Existing Holdings Notes and are otherwise reasonably satisfactory to the
Administrative Agent (such Indebtedness is referred to herein as “Replacement Holdings
Notes”);




     (xii) unsecured senior or subordinated Indebtedness of the Borrower, which may be
guaranteed on a like basis by the Subsidiary Guarantors, the proceeds of which are used to
refinance, redeem or purchase outstanding Existing Holdings Notes and to pay all fees and
expenses associated with the incurrence or issuance of such Indebtedness so long as (i) no
Default or Event of Default then exists or would result therefrom, (ii) the aggregate
principal amount thereof does not exceed the aggregate principal amount (or
the then accreted value) of the Existing Holdings Notes being refinanced, redeemed or
purchased (plus any accrued and unpaid interest thereon, any premiums required to be paid in
connection therewith and the reasonable fees and expenses associated with the issuance or
incurrence of such Indebtedness), (iii) calculations are made by Holdings demonstrating
compliance with the financial covenant contained in Section 9.07 for the Calculation
Period most recently ended, on a Pro Forma Basis, as if such Indebtedness
had been incurred, and the proceeds therefrom had been applied, on the first day of such
Calculation Period, (iv) Holdings shall have delivered to the Administrative Agent on or
prior to such date an officer’s certificate executed by an Authorized Financial Officer of
Holdings and certifying as to compliance with preceding clauses (i), (ii) and (iii) and
containing the calculations (in reasonable detail) required by preceding clauses (ii) and
(iii), (v) such Indebtedness does not have any scheduled amortization, maturity, redemption,
sinking fund or similar payment prior to the one year anniversary of the latest Maturity
Date and (vi) all of the terms and conditions thereof (other than interest rate) are no more
restrictive on Holdings and its Subsidiaries, or less favorable to the Lenders, than the
terms and conditions of the Existing Holdings Notes and are otherwise reasonably
satisfactory to the Administrative Agent (such Indebtedness is referred to herein as
“Borrower Notes”); and



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     (xiii) so long as no Default or Event of Default then exists or would result therefrom,
additional Indebtedness of the Borrower and its Subsidiaries (other than Indebtedness owed
to Holdings) not to exceed $50,000,000 in aggregate principal amount at any time
outstanding, which Indebtedness shall be unsecured unless otherwise permitted under
Section 9.01(xv).



          9.05 Advances, Investments and Loans. Neither Holdings nor the Borrower will, nor will the
Borrower permit any of its Subsidiaries to, directly or indirectly, lend money or credit or make
advances to any Person, or purchase or acquire any stock, obligations or securities of, or any
other interest in, or make any capital contribution to, any other Person, or purchase or own a
futures contract or otherwise become liable for the purchase or sale of currency or other
commodities at a future date in the nature of a futures contract, or hold any cash or Cash
Equivalents (each of the foregoing an “Investment” and, collectively,
“Investments”), except that the following shall be permitted:





     (i) the Borrower and its Subsidiaries may acquire and hold accounts receivables owing
to any of them, if created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms of the Borrower or such Subsidiary;




     (ii) Holdings and its Subsidiaries may acquire and hold cash and Cash Equivalents,
provided that during any time that Revolving Loans or Swingline Loans are
outstanding, the aggregate amount of cash and Cash Equivalents permitted to be held by
Holdings and its Subsidiaries shall not exceed $15,000,000 for any period of five
consecutive Business Days during any fiscal year of Holdings;




     (iii) Holdings and its Subsidiaries may hold the Investments held by them on the
Initial Borrowing Date and described on Schedule XI, provided that any
additional Investments made with respect thereto shall be permitted only if permitted under
the other provisions of this Section 9.05;




     (iv) the Borrower and its Subsidiaries may acquire and own investments (including debt
obligations) received in connection with the bankruptcy or reorganization of suppliers and
customers and in good faith settlement of delinquent obligations of, and other disputes
with, customers and suppliers arising in the ordinary course of business;




     (v) the Borrower and its Subsidiaries may make loans and advances to their officers and
employees for moving, relocation and travel expenses and other similar expenditures, in each
case in the ordinary course of business in an aggregate amount not to exceed $200,000 at any
time (determined without regard to any write-downs or write-offs of such loans and
advances);




     (vi) the Borrower may enter into Interest Rate Protection Agreements to the extent
permitted by Section 9.04(ii);




     (vii) (A) the Borrower and the Subsidiary Guarantors that are Wholly-Owned Domestic
Subsidiaries may make intercompany loans and advances (I) between and among one another and
(II) to Wholly-Owned Foreign Subsidiaries of the Borrower in an



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aggregate amount not to
exceed $3,000,000 at any time (determined without regard to any write-downs or write-offs of
such loans and advances) and (B) Wholly-Owned Foreign Subsidiaries of the Borrower may make
intercompany loans and advances between and among one another (all such intercompany loans
and advances referred to in preceding clauses (A) and (B), collectively, the
“Intercompany Loans”), so long as (x) any note held by a Credit Party and evidencing
any such Intercompany Loan is pledged to the Collateral Agent pursuant to, and to the extent
required by, the Borrower/Sub Pledge Agreement, (y) the aggregate outstanding principal
amount of all Intercompany Loans made pursuant to this clause (vii) to the Captive Insurance
Company and the License Subsidiary, when added to the aggregate amount of all capital
contributions made to such Credit Parties pursuant to clause (viii) of this Section
9.05, shall not exceed $2,500,000 at any time outstanding (determined without regard to
any write-downs or write-offs of any such Investments) and no such Intercompany Loans may be
made at a time when a Default or an Event of Default exists, and (z) any Intercompany Loans
made by the Captive Insurance Company or the License Subsidiary to any other Credit Party
shall be subject to the subordination provisions set forth in Exhibit N;




     (viii) the Borrower and the Subsidiary Guarantors that are Wholly-Owned Domestic
Subsidiaries may make capital contributions to their respective Subsidiaries that are also
Subsidiary Guarantors that are Wholly-Owned Domestic Subsidiaries, provided that (A)
the aggregate amount of all capital contributions made to the Captive Insurance Company and
the License Subsidiary pursuant to this clause (viii), when added to the aggregate
outstanding principal amount of all Intercompany Loans made to such Credit Parties pursuant
to clause (vii) of this Section 9.05, shall not exceed $2,500,000 at
any time outstanding (determined without regard to any write-downs or write-offs of any
such Investments), and (B) no such Investments may be made to the Captive Insurance Company
or the License Subsidiary pursuant to this clause (viii) at a time when a Default or an
Event of Default exists;




     (ix) Permitted Acquisitions shall be permitted in accordance with Section 8.16;




     (x) the Borrower and its Subsidiaries may acquire and hold non-cash consideration
received from Asset Sales to the extent permitted pursuant to Section 9.02(iv);




     (xi) Holdings may acquire and hold obligations of one or more officers, directors or
employees of Holdings or any of its Subsidiaries in connection with such officers’,
directors’ or employees’ acquisition of shares of capital stock of Holdings so long as no
cash is paid by Holdings or any of its Subsidiaries to such officers, directors or employees
in connection with the acquisition of any such obligations;




     (xii) the Borrower and its Subsidiaries may enter into Other Hedging Agreements to the
extent permitted by Section 9.04(x); and




     (xiii) the Borrower and its Subsidiaries may make Investments not otherwise permitted
by this Section 9.05 (other than Investments in or to Holdings) in an aggregate



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amount not to exceed $10,000,000 (determined without regard to any write-downs or write-offs
thereof), net of cash payments of principal in the case of loans and cash equity returns
(whether as a dividend or redemption) in the case of equity investments.



          9.06 Transactions with Affiliates. Neither Holdings nor the Borrower will, nor will the
Borrower permit any of its Subsidiaries to, enter into any transaction or series of related
transactions with any Affiliate of Holdings or any of its Subsidiaries, other than in the ordinary
course of business and on terms and conditions substantially as favorable to Holdings or such
Subsidiary as would reasonably be obtained by Holdings or such Subsidiary at that time in a
comparable arm’s-length transaction with a Person other than an Affiliate, except that the
following in any event shall be permitted:





     (i) Dividends may be paid to the extent provided in Section 9.03;




     (ii) loans may be made and repaid and other transactions may be entered into by
Holdings and its Subsidiaries to the extent permitted by Sections 9.02, 9.04
and 9.05;




     (iii) customary fees may be paid to non-officer directors of Holdings and its
Subsidiaries;




     (iv) Holdings and its Subsidiaries may enter into, and may make payments under,
employment agreements, employee benefits plans, stock option plans, indemnification
provisions and other similar compensatory arrangements (including arrangements made with
respect to bonuses) with officers, employees and directors of Holdings and its Subsidiaries
in the ordinary course of business;




     (v) so long as no Default or Event of Default shall exist, the Borrower may pay
management fees to BRS and its Affiliates in any fiscal year of the Borrower in an aggregate
amount for all such Persons taken together not to exceed 1.5% of Consolidated EBITDA for the
immediately preceding fiscal year of the Borrower;




     (vi) (A) the Borrower and its Subsidiaries may make payments to (x) the Captive
Insurance Company for the sole purpose of paying insurance premiums owed to the Captive
Insurance Company and (y) the License Subsidiary for the sole purpose of paying any license
fees owed to the License Subsidiary, and (B) (x) the Captive Insurance Company may pay out
claims to (or on behalf of) the Borrower and its Subsidiaries in respect of the Designated
Insured Risks and (y) the License Subsidiary may pay intellectual property maintenance fees
to the Borrower and its other Subsidiaries;




     (vii) the Borrower may enter into, and may make payments under, the Holdings Tax
Sharing Agreement; and




     (viii) Holdings may issue shares of its Equity Interests otherwise permitted to be
issued by it under this Agreement.


Notwithstanding anything to the contrary contained above in this Section 9.06, (x) in
no event shall Holdings or any of its Subsidiaries pay any management, consulting or similar fee to
any of


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their respective Affiliates (other than to the Borrower or a Wholly-Owned Domestic
Subsidiary thereof that is a Subsidiary Guarantor (other than the Captive Insurance Company or the
License Subsidiary)), except as specifically provided in clause (v) of this Section 9.06
and (y) neither the Borrower nor any Subsidiary of the Borrower shall make any payments to the
Captive Insurance Company and the License Subsidiary except as specifically provided in clause (vi)
of this Section 9.06 and as otherwise permitted by Section 9.05.




          9.07 Maximum Total Leverage Ratio. At any time that Revolving Loans, Swingline Loans or
Letters of Credit are outstanding, Holdings and the Borrower will not permit the Total Leverage
Ratio at any time to be greater than 4.25:1.00.




          9.08 Limitations on Payments of Existing Holdings Notes, Replacement Holdings Notes and
Borrower Notes; Modifications of Existing Holdings Note Documents, Replacement Holdings Note
Documents, Certificate of Incorporation, By-Laws and Certain Other Agreements, etc. Neither
Holdings nor the Borrower will, nor will the Borrower permit any of its Subsidiaries to:





     (i) make (or give any notice in respect of) any voluntary or optional payment or
prepayment on or redemption, repurchase or acquisition for value of, or any prepayment or
redemption as a result of any asset sale, change of control or similar event of (including,
in each case without limitation, by way of depositing with the trustee with respect thereto
money or securities before due for the purpose of paying when due), any Existing Holdings
Notes, Replacement Holdings Notes or Borrower Notes, provided that
Holdings may refinance, redeem or purchase Existing Holdings Notes to the extent
permitted by Section 9.04(xi) or (xii) and/or with proceeds of equity
issuances by Holdings after the Initial Borrowing Date;




     (ii) amend or modify, or permit the amendment or modification of any provision of, any
Existing Holdings Note Document, any Replacement Holdings Note Document or any Borrower Note
Document other than any amendments or modifications which could not reasonably be expected
to be adverse to the interests of the Lenders in any material respect and which do not
require the payment of any fees to the holders of the Existing Holdings Notes, Replacement
Holdings Notes or Borrower Notes in connection therewith, provided that the prior
written consent of the Administrative Agent is obtained in connection with any such
amendment or modification;




     (iii) amend, modify or change its certificate or articles of incorporation (including,
without limitation, by the filing or modification of any certificate or articles of
designation), certificate of formation, limited liability company agreement or by-laws (or
the equivalent organizational documents), as applicable, or any agreement entered into by it
with respect to its capital stock or other Equity Interests (including any Shareholders’
Agreement), or enter into any new agreement with respect to its capital stock or other
Equity Interests, unless such amendment, modification, change or other action contemplated
by this clause (iii) could not reasonably be expected to be adverse to the interests of the
Lenders in any material respect;



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     (iv) amend, modify or change any provision of (x) any Management Agreement unless such
amendment, modification or change could not reasonably be expected to be adverse to the
interests of the Lenders in any material respect (although no amendment, modification or
change may be made to any monetary term thereof other than to increase the annual fees
thereof up to that amount permitted to be paid by Section 9.06(v)) or (y) any Tax
Sharing Agreement (including the Holdings Tax Sharing Agreement) or enter into any new tax
sharing agreement, tax allocation agreement or similar agreement without the prior written
consent of the Administrative Agent (other than any Tax Sharing Agreement or similar tax
agreement entered into exclusively among Holdings and its Subsidiaries);




     (v) repay any Intercompany Loan owed to the Captive Insurance Company or the License
Subsidiary at any time that a Default or an Event of Default exists; or




     (vi) increase in any material respect the basis on which the insurance premiums and
licensing fees paid to the Captive Insurance Company and the License Subsidiary are
calculated, as the case may be.



          9.09 Limitation on Certain Restrictions on Subsidiaries. Neither Holdings nor the Borrower
will, nor will the Borrower permit any of its Subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or restriction on the
ability of any such Subsidiary to (a) pay dividends or make any other distributions on its capital
stock or any other interest or participation in its profits
owned by Holdings or any of its Subsidiaries, or pay any Indebtedness owed to Holdings or any of
its Subsidiaries, (b) make loans or advances to Holdings or any of its Subsidiaries or (c) transfer
any of its properties or assets to Holdings or any of its Subsidiaries, except for such
encumbrances or restrictions existing under or by reason of (i) applicable law (including, in the
case of the Captive Insurance Company, the New York Insurance Law and the regulations promulgated
thereunder), (ii) this Agreement and the other Credit Documents, (iii) the Existing Holdings Note
Documents, the Replacement Holdings Note Documents and the Borrower Note Documents, (iv) customary
provisions restricting subletting or assignment of any lease governing any leasehold interest of
Holdings or any of its Subsidiaries, (v) customary provisions restricting assignment of any
licensing agreement (in which Holdings or any of its Subsidiaries is the licensee) or other
contract entered into by Holdings or any of its Subsidiaries in the ordinary course of business,
(vi) restrictions on the transfer of any asset pending the close of the sale of such asset, (vii)
restrictions on the transfer of any asset subject to a Lien permitted by Section 9.01(iii),
(vi), (vii), (xiii) or (xiv), and (viii) restrictions or
encumbrances with respect to a Subsidiary of the Borrower imposed pursuant to an agreement that has
been entered into for the sale or disposition of all or substantially all of the capital stock or
other Equity Interests or all or substantially all of the assets of such Subsidiary, so long as
such sale or disposition is permitted under this Agreement and the other Credit Documents.




          9.10 Limitation on Issuance of Capital Stock. (a) Neither Holdings nor the Borrower will,
nor will the Borrower permit any of its Subsidiaries to, issue (i) any preferred stock or other
preferred Equity Interests other than Qualified Preferred Stock or (ii) any redeemable common stock
or other redeemable common Equity Interests other than common

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stock or other redeemable common
Equity Interests that are redeemable at the sole option of Holdings or such Subsidiary, as the case
may be.




     (b) The Borrower will not, and will not permit any of its Subsidiaries to, issue any capital
stock or other Equity Interests (including by way of sales of treasury stock) or any options or
warrants to purchase, or securities convertible into, capital stock or other Equity Interests,
except (i) for transfers and replacements of then outstanding shares of capital stock or other
Equity Interests, (ii) for stock splits, stock dividends and similar issuances which do not
decrease the percentage ownership of Holdings or any of its Subsidiaries in any class of the
capital stock or other equity interests of the Borrower or such Subsidiary, (iii) in the case of
Foreign Subsidiaries of the Borrower, to qualify directors and for nominal shares required to be
held by local nationals, in each case to the extent required by applicable law or (iv) for
issuances by Subsidiaries of the Borrower which are newly created or acquired in accordance with
the terms of this Agreement.



          9.11 Business, etc. (a) Neither Holdings nor the Borrower will, nor will the Borrower
permit any of its Subsidiaries to, engage in any business other than the businesses engaged in by
Holdings and its Subsidiaries as of the Effective Date and reasonable extensions thereof.




     (b) Notwithstanding the foregoing or anything else in this Agreement to the contrary, (i)
Holdings will not engage in any business or own any significant assets or have any
material liabilities other than (x) its ownership of the capital stock or other Equity
Interests of the Borrower, (y) its ownership of those Investments permitted to be held by it under
Section 9.05(xi), and (z) those liabilities which it is responsible for under this
Agreement, the other Credit Documents to which it is a party, the Existing Holdings Note Documents
and the Replacement Holdings Note Documents, provided that Holdings may engage in those
activities that are incidental to the maintenance of its existence in compliance with applicable
law and legal, tax and accounting matters in connection with any of the foregoing activities, and
(ii) the Borrower will not permit (I) the Captive Insurance Company to engage in any business or
own any significant assets or have any material liabilities other than (x) its ownership of the
capital stock or other Equity Interests of the License Subsidiary and its holding of any
Intercompany Loans owed to it as permitted by this Agreement, (y) having those liabilities which it
is responsible for under this Agreement and the other Credit Documents to which it is a party and
in respect of any Intercompany Loans owed by it as permitted by this Agreement and (z) providing
insurance only to, and collecting related premiums only from, the Borrower and its Subsidiaries
with respect to the Designated Insured Risks (it being understood that in no event shall the
Borrower permit the Captive Insurance Company to assume any reinsurance from any other insurance
company, including any reinsurance of the Borrower’s and its Subsidiaries’ risks that are directly
insured by any other insurance company) and (II) the License Subsidiary to engage in any business
or own any significant assets or have any material liabilities other than (x) owning the
intellectual property owned by the License Subsidiary and its holding of any Intercompany Loans
owed to it as permitted by this Agreement, (y) the licensing of such intellectual property to the
Borrower, its other Subsidiaries and third Persons as permitted by this Agreement pursuant to
customary licensing arrangements and the receipt of license fees from the Borrower, its
Subsidiaries and such other Persons with respect thereto, and (z) having those liabilities which it
is responsible for under this Agreement and the other Credit Documents to



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which it is a party and
in respect of any Intercompany Loans and intellectual property maintenance fees owed by it as
permitted by this Agreement provided that, in addition to the foregoing, each of the
Captive Insurance Company and the License Subsidiary may engage in those activities that are
incidental to the maintenance of its existence in compliance with applicable law and legal, tax and
accounting matters in connection with any of the foregoing activities.




          9.12 Limitation on Creation of Subsidiaries, etc. Neither Holdings nor the Borrower
will, nor will the Borrower permit any of its Subsidiaries to, establish, create or acquire after
the Initial Borrowing Date any additional Subsidiaries; provided that the Borrower and its
Wholly-Owned Subsidiaries (other than the Captive Insurance Company and the License Subsidiary)
shall be permitted to establish, create and, to the extent permitted by this Agreement, acquire
Wholly-Owned Subsidiaries and, to the extent permitted by Section 9.05(xiii) and the
definition of Permitted Acquisition, non-Wholly-Owned Subsidiaries, in each case so long as (i) the
Equity Interests of each such new Subsidiary (to the extent owned by a Credit Party) is pledged
pursuant to, and to the extent required by, the applicable Pledge Agreement, (ii) each such new
Domestic Subsidiary (and, to the extent required by Section 8.13, each such new Foreign
Subsidiary), within 10 Business Days after the establishment, creation or acquisition thereof,
executes a counterpart of a Joinder Agreement pursuant to which such new Subsidiary shall become a
party to the Subsidiaries Guaranty, the Borrower/Sub Pledge Agreement and the Security Agreement,
and (iii) each such new Domestic
Subsidiary (and, to the extent required by Section 8.13, each such new Foreign
Subsidiary), to the extent requested by the Administrative Agent or the Required Lenders, takes all
other actions required pursuant to Section 8.12. In addition, each such new Subsidiary
which is required to become a Credit Party will execute and deliver, or cause to be executed and
delivered, all other relevant documentation of the type described in Section 5 as the
Administrative Agent may request and as such new Subsidiary would have had to deliver if such new
Subsidiary were a Credit Party on the Initial Borrowing Date.




          9.13 Change of Legal Names; Type of Organization (and Whether a Registered Organization);
Jurisdiction of Organization etc. Neither Holdings nor the Borrower will, nor will the
Borrower permit any Subsidiary Guarantor to, change its legal name, its type of organization, its
status as a registered organization (in the case of a registered organization), its jurisdiction of
organization, its location, or its organizational identification number (if any), except that any
such changes shall be permitted (so long as not in violation of the applicable requirements of the
Security Documents and so long as same do not involve (x) a registered organization ceasing to
constitute the same or (y) a Credit Party changing its jurisdiction of organization or location
from the United States or a State thereof to a jurisdiction of organization or location, as the
case may be, outside the United States or a State thereof) if (i) it shall have given to the
Collateral Agent not more than 15 days’ written notice after each change to the information listed
on Schedule IX (as adjusted for any subsequent changes thereto previously made in
accordance with this sentence), together with a supplement to Schedule IX which shall
correct all information contained therein for the respective Credit Party, and (ii) in connection
with the respective such change or changes, it shall have taken all action reasonably requested by
the Collateral Agent to maintain the security interests of the Collateral Agent in the Collateral
intended to be granted hereby at all times fully perfected and in full force and effect.





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          9.14 Certain Deposit Accounts. Without limiting the provisions of Sections 6.03
and 9.05(ii), the Borrower will not, and will not permit any of its Domestic Subsidiaries
to, maintain Deposit Accounts (as defined in the Security Agreement) in which the Borrower or any
such Domestic Subsidiary holds more than an average daily balance of $1,000,000 measured on a
rolling trailing thirty (30) day basis for the Borrower or any such Domestic Subsidiary (on an
individual basis), unless such Deposit Account or Deposit Accounts are (x) subject to a “control
agreement” referred to in Section 3.9 of the Security Agreement or (y) otherwise under the
“control” (within the meaning of Section 9-104 of the New York UCC) of the Collateral Agent.




          SECTION 10. Events of Default. Upon the occurrence of any of the following specified
events (each, an “Event of Default”):




          10.01 Payments. The Borrower shall (i) default in the payment when due of any principal of
any Loan or any Note or any Unpaid Drawing or (ii) default, and such default shall continue
unremedied for three
or more Business Days, in the payment when due of any interest on any Loan, Note or Unpaid Drawing
or any Fees or any other amounts owing hereunder or under any other Credit Document; or




          10.02 Representations, etc. Any representation, warranty or statement made or deemed made
by any Credit Party herein or in any other Credit Document or in any certificate delivered to the
Administrative Agent or any Lender pursuant hereto or thereto shall prove to be untrue in any
material respect on the date as of which made or deemed made; or




          10.03 Covenants. Holdings or any of its Subsidiaries shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in Section
8.01(g)(i), 8.08, 8.11, 8.16, 8.18, 8.19 or
Section 9, provided that any Revolver Event of Default shall not constitute an
Event of Default with respect to the Term Loans until the earlier of (x) the date that is 30 days
after the date such Revolver Event of Default arises and (y) the date on which the Administrative
Agent, the Collateral Agent or the RL Lenders exercise any remedies with respect to the Revolving
Obligations in accordance with clause (A) of the remedies paragraph immediately following
Section 10.10; and provided, further that any Revolver Event of Default may
be waived, amended or otherwise modified from time to time by the Majority Lenders holding
Revolving Obligations (or Revolving Loan Commitments with respect thereto) pursuant to Section
13.12(a), or (ii) default in the due performance or observance by it of any other term,
covenant or agreement contained in this Agreement or in any other Credit Document (other than those
set forth in Sections 10.01 and 10.02) and such default shall continue unremedied
for a period of 30 days after written notice thereof to the defaulting party by the Administrative
Agent or the Required Lenders; or




          10.04 Default Under Other Agreements. (i) Holdings or any of its Subsidiaries shall (x)
default in any payment of any Indebtedness (other than the Obligations) beyond the period of grace,
if any, provided in an instrument or agreement under which such Indebtedness was created or (y)
default in the observance or performance of any agreement or condition relating to any Indebtedness
(other than the Obligations) or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist, the effect of which default or
other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a
trustee or agent on behalf of such holder or holders) to cause

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(determined without regard to
whether any notice is required), any such Indebtedness to become due prior to its stated maturity,
or (ii) any Indebtedness (other than the Obligations) of Holdings or any of its Subsidiaries shall
be declared to be (or shall become) due and payable, or required to be prepaid other than by a
regularly scheduled required prepayment, prior to the stated maturity thereof, provided
that it shall not be a Default or an Event of Default under this Section 10.04 unless (A)
the principal amount of any one issue of such Indebtedness is at least $2,500,000 or (B) the
aggregate principal amount of all Indebtedness as described in preceding clauses (i) and (ii) is at
least $5,000,000; or




          10.05 Bankruptcy, etc. Holdings or any of its Subsidiaries shall commence a voluntary case
concerning itself under Title 11 of the United States Code entitled “Bankruptcy,” as now or
hereafter in effect, or any successor thereto (the “Bankruptcy Code”); or an involuntary
case is commenced against Holdings or any of its Subsidiaries, and the petition is not controverted
within 10 days, or is not dismissed within 60 days, after commencement of the case; or a custodian
(as defined in the Bankruptcy Code) is appointed for, or takes charge of, all or substantially all
of the property of Holdings or any of its Subsidiaries, or Holdings or any of its Subsidiaries
commences any other proceeding under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or
hereafter in effect relating to Holdings or any of its Subsidiaries (including, but not limited to,
in the case of the Captive Insurance Company, Article 74 of the New York Insurance Law), or there
is commenced against Holdings or any of its Subsidiaries any such proceeding which remains
undismissed for a period of 60 days, or Holdings or any of its Subsidiaries is adjudicated
insolvent or bankrupt; or any order of relief or other order approving any such case or proceeding
is entered; or Holdings or any of its Subsidiaries suffers any appointment of any custodian or the
like for it or any substantial part of its property to continue undischarged or unstayed for a
period of 60 days; or Holdings or any of its Subsidiaries makes a general assignment for the
benefit of creditors; or any corporate, limited liability company or similar action is taken by
Holdings or any of its Subsidiaries for the purpose of effecting any of the foregoing; or




          10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum funding standard required for
any plan year or part thereof under Section 412 of the Code or Section 302 of ERISA or a waiver of
such standard or extension of any amortization period is sought or granted under Section 412 of the
Code or Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a contributing sponsor
(as defined in Section 4001(a)(13) of ERISA) of a Plan subject to Title IV of ERISA shall be
subject to the advance reporting requirement of PBGC Regulation Section 4043.61 (without regard to
subparagraph (b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66, .67 or
..68 of PBGC Regulation Section 4043 shall be reasonably expected to occur with respect to such Plan
within the following 30 days, any Plan which is subject to Title IV of ERISA shall have had or is
likely to have a trustee appointed to administer such Plan, any Plan which is subject to Title IV
of ERISA is, shall have been or is likely to be terminated or to be the subject of termination
proceedings under ERISA, any Plan shall have an Unfunded Current Liability, a contribution required
to be made with respect to a Plan or a Foreign Pension Plan has not been timely made, Holdings or
any Subsidiary of Holdings or any ERISA Affiliate has incurred or is reasonably likely to incur any
liability to or on account of a Plan under Section 409, 502(i), 502(l), 4062, 4063, 4064, 4069,
4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or on account of a
group health

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plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) under
Section 4980B of the Code, or Holdings or any Subsidiary of Holdings has incurred or is likely to
incur liabilities pursuant to one or more employee welfare benefit plans (as defined in Section
3(1) of ERISA) that provide benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA) or Plans or Foreign Pension Plans, a “default” within the meaning
of Section 4219(c)(5) of ERISA shall occur with respect to any Plan; (b) there shall result from
any such event or events the imposition of a lien,
the granting of a security interest, or a liability or a material risk of incurring a liability;
and (c) such lien, security interest or liability, either individually and/or in the aggregate, has
had, or could reasonably be expected to have, a Material Adverse Effect; or




          10.07 Security Documents. Any of the Security Documents shall cease to be in full force
and effect, or shall cease to give the Collateral Agent for the benefit of the Secured Creditors
the Liens, rights, powers and privileges purported to be created thereby (including, without
limitation, a perfected security interest in, and Lien on, all of the Collateral, in favor of the
Collateral Agent, superior to and prior to the rights of all third Persons (except as permitted by
Section 9.01), and subject to no other Liens (except as permitted by Section
9.01)), or any Credit Party shall default in the due performance or observance of any term,
covenant or agreement on its part to be performed or observed pursuant to any such Security
Document and such default shall continue beyond the period of grace, if any, specifically
applicable thereto pursuant to the terms of such Security Document or, if no such period of grace
is provided in such Security Document, such default shall continue unremedied for a period of 30
days after written notice to the Borrower by the Administrative Agent or the Required Lenders; or




          10.08 Subsidiaries Guaranty. The Subsidiaries Guaranty or any provision thereof shall
cease to be in full force or effect as to any Subsidiary Guarantor, or any Subsidiary Guarantor or
any Person acting for or on behalf of such Subsidiary Guarantor shall deny or disaffirm such
Subsidiary Guarantor’s obligations under the Subsidiaries Guaranty or any Subsidiary Guarantor
shall default in the due performance or observance of any term, covenant or agreement on its part
to be performed or observed pursuant to the Subsidiaries Guaranty; or




          10.09 Judgments. One or more judgments or decrees shall be entered against Holdings
or any Subsidiary of Holdings involving in the aggregate for Holdings and its Subsidiaries a
liability (to the extent not paid or fully covered by a reputable and solvent third party insurance
company) and such judgments and decrees either shall be final and non-appealable or shall not be
vacated, discharged or stayed or bonded pending appeal for any period of 60 consecutive days, and
(I) any one such judgment or decree equals or exceeds $2,500,000 or (II) the aggregate amount of
all such judgments or decrees equals or exceeds $5,000,000; or




          10.10 Change of Control. A Change of Control shall occur;



then, and in any such event, and at any time thereafter, (A) if any Revolver Event of Default shall
then be continuing solely with respect to the Revolving Obligations, the Administrative Agent, upon
the written request of the Majority Lenders holding Revolving Obligations (or Revolving Loan
Commitments with respect thereto), shall by written notice to the Borrower, take any or all of the
following actions, without prejudice to the rights of the Administrative Agent, any RL Lender or
the holder of any Revolving Note or Swingline Note to enforce its


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claims against any Credit Party: (i) declare the Total Revolving Loan Commitment terminated,
whereupon the Revolving Loan Commitments of each RL Lender shall forthwith terminate immediately
and any Commitment Commission shall forthwith become due and payable without any other notice of
any kind; (ii) declare the principal of and any accrued interest in respect of all Revolving Loans,
Swingline Loans, the Revolving Notes and the Swingline Notes and all Obligations owing to the RL
Lenders hereunder and thereunder to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of which are hereby waived by
each Credit Party; (iii) terminate any Letter of Credit which may be terminated in accordance with
its terms; (iv) direct the Borrower to pay (and the Borrower agrees that upon receipt of such
notice it will pay) to the Collateral Agent at the Payment Office such additional amount of cash or
Cash Equivalents, to be held as security by the Collateral Agent, as is equal to the aggregate
Stated Amount of all Letters of Credit issued for the account of the Borrower and then outstanding;
(v) enforce, as Collateral Agent on behalf of all of the Lenders, all of the Liens and security
interests created pursuant to the Security Documents; and (vi) apply any cash collateral held by
the Administrative Agent pursuant to Section 4.02 to the repayment of the Obligations owing
to the RL Lenders, and (B) if any Event of Default (other than a Revolver Event of Default that
exists solely with respect to the Revolving Obligations) shall then be continuing, the
Administrative Agent, upon the written request of the Required Lenders, shall by written notice to
the Borrower, take any or all of the following actions, without prejudice to the rights of the
Administrative Agent, any Lender or the holder of any Note to enforce its claims against any Credit
Party (provided that, if an Event of Default specified in Section 10.05 shall occur
with respect to the Borrower, the result which would occur upon the giving of written notice by the
Administrative Agent as specified in clauses (i) and (ii) below shall occur automatically without
the giving of any such notice): (i) declare the Total Commitment terminated, whereupon the
Commitments of each Lender shall forthwith terminate immediately and any Commitment Commission
shall forthwith become due and payable without any other notice of any kind; (ii) declare the
principal of and any accrued interest in respect of all Loans and the Notes and all Obligations
owing hereunder and thereunder to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of which are hereby waived by
each Credit Party; (iii) terminate any Letter of Credit which may be terminated in accordance with
its terms; (iv) direct the Borrower to pay (and the Borrower agrees that upon receipt of such
notice, or upon the occurrence of an Event of Default specified in Section 10.05 with
respect to the Borrower, it will pay) to the Collateral Agent at the Payment Office such additional
amount of cash or Cash Equivalents, to be held as security by the Collateral Agent, as is equal to
the aggregate Stated Amount of all Letters of Credit issued for the account of the Borrower and
then outstanding; (v) enforce, as Collateral Agent, all of the Liens and security interests created
pursuant to the Security Documents; and (vi) apply any cash collateral held by the Administrative
Agent pursuant to Section 4.02 to the repayment of the Obligations.




          SECTION
11. Definitions and Accounting Terms.




          11.01 Defined Terms. As used in this Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms defined):





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          “Acquired Entity or Business” shall mean either (x) the assets and liabilities
constituting a business, division or product line of any Person not already a Subsidiary of the
Borrower or (y) 100% of the capital stock or other Equity Interests of any such Person, which
Person shall, as a result of such stock acquisition, become a Wholly-Owned Domestic Subsidiary of
the Borrower (or shall be merged with and into the Borrower or a Subsidiary Guarantor which is a
Wholly-Owned Domestic Subsidiary of the Borrower, with the Borrower or such Subsidiary Guarantor
which is a Wholly-Owned Domestic Subsidiary being the surviving Person), provided that any
foreign operations of any such Person may be held by a Wholly-Owned Foreign Subsidiary of such
Person to the extent otherwise permitted under this Agreement.




          “Additional Security Documents” shall have the meaning provided in Section
8.12.




          “Adjusted Consolidated Net Income” shall mean, for any period, Consolidated Net Income
for such period plus the sum of the amount of all net non-cash charges (including, without
limitation, depreciation, amortization, deferred tax expense, non-cash interest expense and
non-cash stock or stock option compensation expense) and net non-cash losses which were included in
arriving at Consolidated Net Income for such period, less the amount of all net non-cash gains and
non-cash credits which were included in arriving at Consolidated Net Income for such period.




          “Adjusted Consolidated Working Capital” shall mean, at any time, Consolidated Current
Assets (but excluding therefrom all cash and Cash Equivalents) less Consolidated Current
Liabilities at such time.




          “Administrative Agent” shall mean DBTCA, in its capacity as Administrative Agent for
the Lenders hereunder, and shall include any successor to the Administrative Agent appointed
pursuant to Section 12.09.




          “Affiliate” shall mean, with respect to any Person, any other Person directly or
indirectly controlling (including, but not limited to, all directors and officers of such Person),
controlled by, or under direct or indirect common control with, such Person. A Person shall be
deemed to control another Person if such Person possesses, directly or indirectly, the power (i) to
vote 5% or more of the securities having ordinary voting power for the election of directors (or
equivalent governing body) of such Person or (ii) to direct or cause the direction of the
management and policies of such other Person, whether through the ownership of voting securities,
by contract or otherwise; provided, however, that neither the Administrative Agent
nor any Affiliate thereof shall be considered an Affiliate of the Borrower or any Subsidiary
thereof.




          “Agreement” shall mean this Credit Agreement, as modified, supplemented, amended,
restated (including any amendment and restatement hereof), extended or renewed from time to time.




          “Applicable Commitment Commission Percentage” and “Applicable Margin” shall
mean: (A) from and after any Start Date to and including the corresponding End Date described
below, (i) with respect to Commitment Commission, the respective per annum



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percentage set forth in
the table below under the column “Applicable Commitment Commission Percentage”, (ii) with respect
to Initial Term Loans maintained as (x) Base Rate Loans, a percentage per annum equal to 0.75%, and
(y) Eurodollar Loans, a percentage per annum equal to 1.75%, and (iii) with respect to Revolving
Loans and Swingline Loans, the respective percentage per annum set forth in the table below under
the respective Tranche and Type of Loans and (in the case of preceding sub-clauses (i) and (iii))
opposite the respective Level (i.e., Level 1, Level 2 or Level 3, as the case may be)
indicated to have been achieved on the respective Start Date (as shown in any respective Quarterly
Pricing Certificate delivered in accordance with the following sentences) and (B) with respect to
any Type of Incremental Term Loan of a given Tranche that is not an Initial Term Loan, that
percentage per annum set forth in, or calculated in accordance with, Section 1.14 and the
respective Incremental Term Loan Commitment Agreement:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Applicable
	 	 	 	 	 	 	Revolving Loans and	 	 	 	 	 	Commitment
	 	 	 	 	 	 	Swingline Loans	 	Revolving Loans	 	Commission
	Level	 	Secured Leverage Ratio	 	Base Rate Margin	 	Eurodollar Margin	 	Percentage
	 	3	 	 	Greater than 1.50 to 1.00
	 	 	1.25	%	 	 	2.25	%	 	 	0.50	%
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	2	 	 	Greater than 1.00 to
1.00 but equal to or
less than 1.50 to 1.00
	 	 	1.00	%	 	 	2.00	%	 	 	0.50	%
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	1	 	 	Equal to or less than
1.00 to 1.00
	 	 	0.75	%	 	 	1.75	%	 	 	0.375	%






          The Secured Leverage Ratio used in a determination of Applicable Commitment Commission
Percentage and Applicable Margins shall be determined based on the delivery of a certificate of
Holdings (each, a “Quarterly Pricing Certificate”) by an Authorized Financial Officer of
Holdings to the Administrative Agent (with a copy to be sent by the Administrative Agent to each
Lender), within (i) 45 days after the last day of each of the first three fiscal quarters in each
fiscal year of Holdings and (ii) 90 days after the last day of the fourth fiscal quarter of each
fiscal year of Holdings, each of which Quarterly Pricing Certificates shall set forth the
calculation of the Secured Leverage Ratio as at the last day of the Test Period ended immediately
prior to the relevant Start Date and the Applicable Commitment Commission Percentage and Applicable
Margins which shall be thereafter applicable (until same are changed in accordance with the
provisions of this definition). The Applicable Commitment Commission Percentage and Applicable
Margins so determined shall apply from the relevant Start Date to the earlier of (x) the date on
which the next Quarterly Pricing Certificate is delivered to the Administrative Agent and (y) the
date which is 45 days following the last day of the Test Period (or 90 days following the last day
of the Test Period in respect of the fourth fiscal quarter of Holdings, in either case) in which
the previous Start Date occurred (such earlier date, the “End 
Date”), at which time, if no Quarterly Pricing Certificate has been delivered to the
Administrative Agent indicating an entitlement to new Applicable Commitment Commission Percentage
and Applicable Margins (and thus commencing a new Start Date), the Applicable




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Commitment Commission
Percentage and Applicable Margins shall be those applicable to a Secured Leverage Ratio based on a
Level 3 until such time as a new Start Date shall commence as provided above. Notwithstanding
anything to the contrary contained above in this definition, (x) the Applicable Commitment
Commission Percentage and Applicable Margins for Revolving Loans and Swingline Loans shall be those
applicable to a Secured Leverage Ratio based on a Level 3 at all times during the period from and
including the Effective Date through the first Start Date after the last day of Holdings’ fiscal
quarter ending June 30, 2007 and (y) the Applicable Commitment Commission Percentage and Applicable
Margins for Revolving Loans and Swingline Loans shall be those applicable to a Secured Leverage
Ratio based on a Level 3 at all times during which any Default or Event of Default shall occur and
be continuing.




     “Applicable Excess Cash Flow Repayment Percentage” shall mean 50%; provided
that, so long as no Default or Event of Default exists on the respective Excess Cash Flow Payment
Date, if the Secured Leverage Ratio as of the last day of the respective Excess Cash Flow Payment
Period is equal to, or less than, 2.00:1.00, then the Applicable Excess Cash Flow Repayment
Percentage instead shall be 25%; and provided further that, so long as no Default
or Event of Default exists on the respective Excess Cash Flow Payment Date, if the Secured Leverage
Ratio as of the last day of the respective Excess Cash Flow Payment Period is less than 1.00:1.00,
then the Applicable Excess Cash Flow Repayment Percentage instead shall be 0%.



     “Asset Sale” shall mean any sale, transfer or other disposition by Holdings or any of
its Subsidiaries to any Person (including by way of redemption by such Person) other than to
Holdings or a Wholly-Owned Subsidiary of Holdings of any asset (including, without limitation, any
capital stock or other securities of, or Equity Interests in, another Person) other than sales of
assets pursuant to Sections 9.02(ii), (vi), (vii), (x) and
(xii).



     “Assignment and Assumption Agreement” shall mean an Assignment and Assumption
Agreement substantially in the form of Exhibit L (appropriately completed).



     “Authorized Financial Officer” of any Person shall mean the chief financial officer,
the vice-president finance, the treasurer or assistant treasurer of such Person or, if there is no
chief financial officer, vice-president finance, treasurer or assistant treasurer of such Person,
any other senior executive officer of such Person designated by the president of such Person as
being a financial officer authorized to deliver and certify financial information under this
Agreement.



     “Authorized Officer” shall mean, with respect to (i) delivering Notices of Borrowing,
Notices of Conversion/Continuation and similar notices, any person or persons that has or have been
authorized by the board of directors of the Borrower to deliver such notices pursuant to this
Agreement and that has or have appropriate signature cards on file with the Administrative Agent,
the Swingline Lender or the respective Issuing Lender, (ii) delivering financial information and
officer’s certificates pursuant to this Agreement, an Authorized Financial Officer of Holdings, and
(iii) any other matter in connection with this Agreement or
any other Credit Document, any officer (or a person or persons so designated by any two
officers) of Holdings or the Borrower.



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          “Bankruptcy Code” shall have the meaning provided in Section 10.05.




          “Base Rate” shall mean, at any time, the higher of (i) the Prime Lending Rate at such
time and (ii) 1/2 of 1% in excess of the overnight Federal Funds Rate at such time.




          “Base Rate Loan” shall mean (i) each Swingline Loan and (ii) each other Loan
designated or deemed designated as such by the Borrower at the time of the incurrence thereof or
conversion thereto.




          “Borrower” shall have the meaning set forth in the first paragraph of this Agreement.




          “Borrower Note Documents” shall mean the Borrower Note Indenture, the Borrower Notes
and each other document or agreement relating to the issuance of the Borrower Notes.




          “Borrower Note Indenture” shall mean the Indenture to be entered into among the
Borrower, one or more Subsidiary Guarantors and the trustee thereunder pursuant to which the
Borrower Notes are to be issued, as the same may be amended, modified or supplemented from time to
time in accordance with the terms hereof and thereof.




          “Borrower Notes” shall have the meaning provided in Section 9.04(xii).




          “Borrower/Sub Pledge Agreement” shall have the meaning provided in Section
5.10(a)




          “Borrowing” shall mean the borrowing of one Type of Loan of a single Tranche from all
the Lenders having Commitments of the respective Tranche (or from the Swingline Lender in the case
of Swingline Loans) on a given date (or resulting from a conversion or conversions on such date)
having in the case of Eurodollar Loans the same Interest Period, provided that Base Rate
Loans incurred pursuant to Section 1.10(b) shall be considered part of the related
Borrowing of Eurodollar Loans.




          “BRS” shall mean Bruckmann, Rosser, Sherrill & Co., L.P, a Delaware limited
partnership.




          “BRS Investors” shall mean collectively: BRS; Bruce Bruckmann, an individual;
Elizabeth McShane, an individual; Beverly Place, an individual; D. Bruckmann, and individual, BCB
Partnership; NAZ Partnership; Harold O. Rosser, an individual; Virgil Sherrill, an individual;
Stephen Sherrill, an individual, Nancy Zweng, an individual; Paul D. Kaminski, an individual; and
Merrill Lynch Pierce Fenner & Smith, Custodian for the Benefit of Paul D. Kaminski IRA.




          “Business Day” shall mean (i) for all purposes other than as covered by clause (ii)
below, any day except Saturday, Sunday and any day which shall be in New York, New York, a
legal holiday or a day on which banking institutions are authorized or required by law or
other government action to close and (ii) with respect to all notices and determinations in
connection with, and payments of principal and interest on, Eurodollar Loans, any day which is a
Business

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Day described in clause (i) above and which is also a day for trading by and between banks
in U.S. dollar deposits in the interbank Eurodollar market.




          “Calculation Period” shall mean, with respect to any Permitted Acquisition, any
Significant Asset Sale, any incurrence or issuance of Borrower Notes or any other event expressly
required to be calculated on a Pro Forma Basis pursuant to the terms of this Agreement, the Test
Period most recently ended prior to the date of any such Permitted Acquisition, Significant Asset
Sale, incurrence or issuance of Borrower Notes or other event for which financial statements are
available.




          “Capital Expenditures” shall mean, with respect to any Person, all expenditures by
such Person which should be capitalized in accordance with generally accepted accounting principles
and, without duplication, the amount of Capitalized Lease Obligations incurred by such Person.




          “Capitalized Lease Obligations” shall mean, with respect to any Person, all rental
obligations of such Person which, under generally accepted accounting principles, are or will be
required to be capitalized on the books of such Person, in each case taken at the amount thereof
accounted for as indebtedness in accordance with such principles.




          “Captive Insurance Company” shall mean TSI Insurance, Inc., a New York captive
insurance company and a Wholly-Owned Domestic Subsidiary of the Borrower.




          “Cash Equivalents” shall mean, as to any Person, (i) securities issued or directly and
fully guaranteed or insured by the United States or any agency or instrumentality thereof
(provided that the full faith and credit of the United States is pledged in support
thereof) having maturities of not more than six months from the date of acquisition, (ii)
marketable direct obligations issued by any state of the United States or any political subdivision
of any such state or any public instrumentality thereof maturing within six months from the date of
acquisition thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either S&P or Moody’s, (iii) Dollar denominated time deposits, certificates of
deposit and bankers acceptances of any Lender or any commercial bank having, or which is the
principal banking subsidiary of a bank holding company having, a long-term unsecured debt rating of
at least “A” or the equivalent thereof from S&P or “A2” or the equivalent thereof from Moody’s with
maturities of not more than six months from the date of acquisition by such Person, (iv) repurchase
obligations with a term of not more than seven days for underlying securities of the types
described in clause (i) above entered into with any bank meeting the qualifications specified in
clause (iii) above, (v) commercial paper issued by any Person incorporated in the United States
rated at least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by
Moody’s and in each case maturing not more than six months after the date of acquisition by such
Person, and (vi) investments in money market funds substantially all of whose assets are comprised
of securities of the types described in clauses (i) through (v) above.




          “CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as the same has been amended and may hereafter be amended from time to time,
42 U.S.C. § 9601 et seq.



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          “Change of Control” shall mean any of (i) from and after the Effective Date (x) any
“Person” or “Group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act as in
effect on the Effective Date), other than BRS, the BRS Investors and their Permissible Transferees,
(A) is or shall become the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the
Exchange Act as in effect on the Effective Date), directly or indirectly, of 35% or more on a fully
diluted basis of the Voting Equity Interests of Holdings or (B) shall have obtained the power
(whether or not exercised) to elect a majority of Holdings’ directors or (y) the board of directors
of Holdings shall cease to consist of a majority of Continuing Directors, (ii) Holdings shall cease
to own 100% of the capital stock and other Equity Interests of the Borrower, or (iii) a “change of
control” (or similar term) pursuant to, and as defined in, the Existing Holdings Note Documents,
any Replacement Holdings Note Document or any Borrower Note Document shall occur.




          “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, and
the regulations promulgated and rulings issued thereunder. Section references to the Code are to
the Code as in effect at the date of this Agreement and any subsequent provisions of the Code
amendatory thereof, supplemental thereto or substituted therefor.




          “Collateral” shall mean all property (whether real or personal) with respect to which
any security interests have been granted (or purported to be granted) pursuant to any Security
Document, including, without limitation, all Pledge Agreement Collateral, all Security Agreement
Collateral and all cash and Cash Equivalents delivered as collateral pursuant to Section
4.02 or 10.




          “Collateral Agent” shall mean the Administrative Agent acting as collateral agent for
the Secured Creditors pursuant to the Security Documents.




          “Commitment” shall mean any of the commitments of any Lender, i.e., an Initial Term
Loan Commitment, an Incremental Term Loan Commitment or a Revolving Loan Commitment.




          “Commitment Commission” shall have the meaning provided in Section 3.01(a).




          “Consolidated Current Assets” shall mean, at any time, the consolidated current assets
of Holdings and its Subsidiaries at such time. 




          “Consolidated Current Liabilities” shall mean, at any time, the consolidated current
liabilities of Holdings and its Subsidiaries at such time, but excluding the current portion of any
Indebtedness under this Agreement and the current portion of any other long-term Indebtedness which
would otherwise be included therein. 




          “Consolidated EBIT” shall mean, for any period, Consolidated Net Income for such
period before deducting therefrom consolidated interest expense of Holdings and its Subsidiaries
for such period and provision for taxes based on income that were included in
arriving at Consolidated Net Income for such period and without giving effect (x) to any
extraordinary gains or any extraordinary non-cash losses (except to the extent that any such
extraordinary non-cash losses will require a cash payment in a future period) and (y) to any gains

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or losses from sales of assets other than from sales of inventory in the ordinary course of
business.




          “Consolidated EBITDA” shall mean, for any period, Consolidated EBIT for such period,
adjusted by (x) adding thereto (i) the amount of all amortization of intangibles and depreciation
to the extent that same was deducted in arriving at Consolidated Net Income for such period, (ii)
the amount of all Transaction Expenses to the extent that same were deducted in arriving at
Consolidated Net Income for such period, (iii) the amount of all deferred rent expense to the
extent that same was deducted in arriving at Consolidated Net Income for such period, (iv) the
amount of all non-cash deferred compensation expense resulting from the issuance of capital stock,
stock options or stock appreciation rights to former or current directors, officers or employees of
Holdings or any Subsidiary of Holdings, or the exercise of such options or rights, in each case, to
the extent that same were deducted in arriving at Consolidated Net Income for such period, (v) the
amount of all non-cash deferred compensation expense resulting from the repurchase of capital
stock, options and rights described in preceding clause (iv) of this definition to the extent that
same were deducted in arriving at Consolidated Net Income for such period, (vi) the amount of all
non-cash charges resulting from discontinued operations to the extent otherwise permitted by FAS
141 to the extent that same were deducted in arriving at Consolidated Net Income for such period,
and (vii) the amount of all transaction fees and expenses incurred in connection with the issuance
of any Replacement Holdings Notes or Borrower Notes and the related refinancing of any Existing
Holdings Notes to the extent that such fees and expenses were deducted in arriving at Consolidated
Net Income for such period and were paid for with the proceeds from the issuance of such
Replacement Holdings Notes or Borrower Notes, and (y) subtracting therefrom (i) the amount of any
payment of rent during such period that was deferred in a previous period to the extent not
otherwise deducted in arriving at Consolidated Net Income for such current period and (ii) the
amount of all cash payments and cash charges made during such period relating to any non-cash
charges taken in a previous period pursuant to preceding clause (x)(vi) to the extent not otherwise
deducted in arriving at the Consolidated Net Income for such current period; it being understood
that in determining the Total Leverage Ratio, Consolidated EBITDA for any period shall be
calculated on a Pro Forma Basis to give effect to any Acquired Entity or Business
acquired during such period pursuant to a Permitted Acquisition and not subsequently sold or
otherwise disposed of by Holdings or any of its Subsidiaries during such period and to any
Significant Asset Sale during such period.




          “Consolidated Indebtedness” shall mean, at any time, the aggregate amount of all
Indebtedness of Holdings and its Subsidiaries at such time determined on a consolidated basis (but
excluding, to the extent otherwise included therein, (i) Contingent Obligations in respect of
operating leases of Holdings and its Subsidiaries, (ii) the outstanding Existing Senior Notes and
(iii) the outstanding Existing Holdings Notes and any outstanding Replacement Holdings Notes)).




          “Consolidated Net Income” shall mean, for any period, the net income (or loss) of
Holdings and its Subsidiaries for such period, determined on a consolidated basis (after any
deduction for minority interests), provided that (i) in determining Consolidated Net
Income, the
net income of any other Person which is not a Subsidiary of Holdings or is accounted for by
Holdings by the equity method of accounting shall be included only to the extent of the payment of
cash dividends or cash distributions by such other Person to Holdings or a Subsidiary thereof



 -85- 









 




during such period, (ii) the net income of any Subsidiary of Holdings (other than the Borrower)
shall be excluded to the extent that the declaration or payment of cash dividends or similar cash
distributions by that Subsidiary of that net income is not at the date of determination permitted
by operation of its charter or any agreement, instrument or law applicable to such Subsidiary and
(iii) except for determinations expressly required to be made on a Pro Forma Basis,
the net income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of the
Borrower or all or substantially all of the property or assets of such Person are acquired by a
Subsidiary of the Borrower.




          “Consolidated Secured Indebtedness” shall mean, at any time, the aggregate amount of
all Consolidated Indebtedness of Holdings and its Subsidiaries at such time that is secured by a
Lien on any asset of Holdings and/or any of its Subsidiaries (including, without limitation, the
Obligations).




          “Contingent Obligation” shall mean, as to any Person, without duplication, any
obligation of such Person as a result of such Person being a general partner of any other Person,
unless the underlying obligation is expressly made non-recourse as to such general partner, and any
obligation of such Person guaranteeing or intended to guarantee any Indebtedness, leases, dividends
or other obligations (“primary obligations”) of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, including, without limitation, any
obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation
or any property constituting direct or indirect security therefor, (ii) to advance or supply funds
(x) for the purchase or payment of any such primary obligation or (y) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such
primary obligation against loss in respect thereof; provided, however, that the
term Contingent Obligation shall not include endorsements of instruments for deposit or collection
in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be
an amount equal to the stated or determinable amount of the primary obligation in respect of which
such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to perform thereunder)
as determined by such Person in good faith.




          “Continuing Directors” shall mean the directors of Holdings on the Effective Date and
each other director of Holdings if such director’s nomination for election to the board of
directors of Holdings is recommended by a majority of the then Continuing Directors.




          “Credit Documents” shall mean this Agreement and, after the execution and delivery
thereof pursuant to the terms of this Agreement, each Note, the Subsidiaries Guaranty, each
Security Document, each Joinder Agreement and each Incremental Term Loan Commitment Agreement.




          “Credit Event” shall mean the making of any Loan or the issuance of any Letter of
Credit.





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          “Credit Party” shall mean Holdings, the Borrower and each Subsidiary Guarantor.




          “DBTCA” shall mean Deutsche Bank Trust Company Americas, in its individual capacity,
and any successor corporation thereto by merger, consolidation or otherwise.




          “Default” shall mean any event, act or condition which with notice or 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.




          “Designated Insured Risks” shall mean those categories of risks that are not covered
by the Borrower’s and its Subsidiaries third party insurance coverage required to be maintained
pursuant to Section 8.03 (such as, but not limited to, war, sabotage, terrorism, reputation
and deceptive practices and other coverages in excess of those amounts required to be maintained by
such Section 8.03) and which are not generally available at commercially reasonable rates
as determined in good faith by the Board of Directors of the Borrower.




          “Dividend” shall mean, with respect to any Person, that such Person has declared or
paid a dividend, distribution or returned any equity capital to its stockholders, partners or
members or authorized or made any other distribution, payment or delivery of property (other than
common equity of such Person) or cash to its stockholders, partners or members in their capacity as
such, or redeemed, retired, purchased or otherwise acquired, directly or indirectly, for a
consideration any shares of any class of its capital stock or any partnership or membership
interests outstanding on or after the Effective Date (or any options or warrants issued by such
Person with respect to its capital stock or other equity interests), or set aside any funds for any
of the foregoing purposes, or shall have permitted any of its Subsidiaries to purchase or otherwise
acquire for a consideration any shares of any class of the capital stock or any partnership or
membership interests of such Person outstanding on or after the Effective Date (or any options or
warrants issued by such Person with respect to its capital stock or other Equity Interests).
Without limiting the foregoing, “Dividends” with respect to any Person shall also include
all payments made or required to be made by such Person with respect to any stock appreciation
rights, plans, equity incentive or achievement plans or any similar plans or setting aside of any
funds for the foregoing purposes.




          “Documents” shall mean the Credit Documents and the Existing Senior Notes Tender
Offer/Consent Solicitation Documents.




          “Dollars” and the sign “$” shall each mean freely transferable lawful money of
the United States.




          “Domestic Subsidiary” shall mean each Subsidiary of the Borrower incorporated or
organized in the United States or any State thereof.




          “Drawing” shall have the meaning provided in Section 2.05(b).




          “Effective Date” shall have the meaning provided in Section 13.10.




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          “Eligible Transferee” shall mean and include a commercial bank, an insurance company,
a finance company, a financial institution, any fund that invests in loans or any other “accredited
investor” (as defined in Regulation D of the Securities Act), but excluding individuals and
Holdings and its Subsidiaries and Affiliates.




          “End Date” shall have the meaning set forth in the definition of Applicable Margin.




          “Environmental Claims” shall mean any and all administrative, regulatory or judicial
actions, suits, demands, demand letters, directives, claims, liens, notices of noncompliance or
violation, investigations or proceedings relating in any way to any Environmental Law or any permit
issued, or any approval given, under any such Environmental Law (hereafter, “Claims”),
including, without limitation, (a) any and all Claims by governmental or regulatory authorities for
enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Law, and (b) any and all Claims by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or injunctive relief in connection with
alleged injury or threat of injury to health, safety or the environment due to the presence of
Hazardous Materials.




          “Environmental Law” shall mean any federal, state, foreign or local statute, law,
rule, regulation, ordinance, code, guideline, policy and rule of common law now or hereafter in
effect and in each case as amended, and any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent decree or judgment, relating to the
environment, employee health and safety or Hazardous Materials, including, without limitation,
CERCLA; the Resource Conservation and Recovery Act, 42 U.S.C § 6901 et seq.; the
Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.; the Toxic Substances
Control Act, 15 U.S.C. § 2601 et seq.; the Clean Air Act, 42 U.S.C. § 7401
et seq.; the Safe Drinking Water Act, 42 U.S.C. § 3803 et seq.; the
Oil Pollution Act of 1990, 33 U.S.C. § 2701 et seq.; the Emergency Planning and the
Community Right-to-Know Act of 1986, 42 U.S.C. § 11001 et seq.; the Hazardous
Material Transportation Act, 49 U.S.C. § 1801 et seq.; the Occupational Safety and
Health Act, 29 U.S.C. § 651 et seq.; and any state and local or foreign
counterparts or equivalents, in each case as amended from time to time.




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




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




          “ERISA Affiliate” shall mean each person (as defined in Section 3(9) of ERISA) which
together with Holdings or a Subsidiary of Holdings is deemed to be a “single employer” within the
meaning of Section 414(b), (c), (m) or (o) of the Code.




          “Eurodollar Loan” shall mean each Loan (other than a Swingline Loan) designated as
such by the Borrower at the time of the incurrence thereof or conversion thereto.




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          “Eurodollar Rate” shall mean (a) the offered quotation to first-class banks in the New
York interbank Eurodollar market by the Administrative Agent for Dollar deposits of amounts in
immediately available funds comparable to the outstanding principal amount of the Eurodollar Loan
of the Administrative Agent (in its capacity as a Lender) with maturities comparable to the
Interest Period applicable to such Eurodollar Loan commencing two Business Days thereafter as of
11:00 A.M. (New York time) on the applicable Interest Determination Date, divided (and rounded
upward to the nearest 1/16 of 1%) by (b) a percentage equal to 100% minus the then stated maximum
rate of all reserve requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves required by applicable law) applicable to any member bank
of the Federal Reserve System in respect of Eurocurrency funding or liabilities as defined in
Regulation D (or any successor category of liabilities under Regulation D).




          “Event of Default” shall have the meaning provided in Section 10.




          “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.




          “Excess Cash Flow” shall mean, for any period, the remainder of (a) the sum of,
without duplication, (i) Adjusted Consolidated Net Income for such period and (ii) the decrease, if
any, in Adjusted Consolidated Working Capital from the first day to the last day of such period,
minus (b) the sum of, without duplication, (i) the aggregate amount of all Capital
Expenditures made by Holdings and its Subsidiaries during such period (other than Capital
Expenditures to the extent financed with equity proceeds, Equity Interests, asset sale proceeds
(other than sales of inventory in the ordinary course of business), insurance proceeds or
Indebtedness (other than Revolving Loans and Swingline Loans)), (ii) the aggregate amount of
permanent principal payments of Indebtedness for borrowed money of Holdings and its Subsidiaries
and the permanent repayment of the principal component of Capitalized Lease Obligations of Holdings
and its Subsidiaries during such period (other than (1) repayments made with the proceeds of asset
sales (other than sales of inventory in the ordinary course of business), sales or issuances of
Equity Interests, insurance or Indebtedness and (2) payments of Loans and/or other Obligations,
provided that repayments of Loans shall be deducted in determining Excess Cash Flow to the
extent such repayments were required as a result of a Scheduled Term Loan Repayment pursuant to
Section 4.02(b)), (iii) the increase, if any, in Adjusted Consolidated Working Capital from
the first day to the last day of such period, and (iv) the aggregate amount of all cash payments
made in respect of all Permitted Acquisitions consummated by Holdings and its Subsidiaries during
such period (other than any such payments to the extent financed with equity proceeds, asset sale
proceeds, insurance proceeds or Indebtedness).




          “Excess Cash Flow Payment Date” shall mean the date occurring 90 days after the last
day of each fiscal year of Holdings (commencing with the fiscal year of Holdings ending December
31, 2008).




          “Excess Cash Flow Payment Period” shall mean, with respect to the repayment required
on each Excess Cash Flow Payment Date, the immediately preceding fiscal year of Holdings.





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          “Existing Credit Agreement” shall mean the Credit Agreement, dated as of April 16,
2003, as heretofore amended or supplemented, among the Borrower, the lenders party thereto and
DBTCA, as administrative agent (as amended through and including the Initial Borrowing Date).




          “Existing Holdings Note Documents” shall mean the Existing Holdings Note Indenture,
the Existing Holdings Notes and each other document or agreement relating to the issuance of the
Existing Holdings Notes.




          “Existing Holdings Note Indenture” shall mean the Indenture, dated as of February 4,
2004, as heretofore amended or supplemented, between Holdings and The Bank of New York, as the
trustee thereunder, as the same hereafter may be amended, modified or supplemented from time to
time in accordance with the terms hereof and thereof and hereof.




          “Existing Holdings Notes” shall mean Holdings’ 11% Senior Discount Notes due February
4, 2014 issued pursuant to the Existing Holdings Note Indenture, as the same may be amended or
supplemented from time to time in accordance with the terms thereof and hereof.




          “Existing Indebtedness” shall have the meaning provided in Section 7.20.




          “Existing Indebtedness Agreements” shall have the meaning provided in Section
5.05.




          “Existing Senior Notes” shall mean the Borrower’s 9-5/8% Senior Notes due 2011 issued
pursuant to the Existing Senior Note Indenture, as the same may be amended or supplemented from
time to time in accordance with the terms thereof and hereof.




          “Existing Senior Note Indenture” shall mean the Indenture, dated as of April 16, 2003,
among the Borrower, the Subsidiary Guarantors and The Bank of New York, as the trustee thereunder,
as in effect on the Initial Borrowing Date (after giving effect to the Transaction), as the same
may be amended or supplemented from time to time in accordance with the terms thereof and hereof.




          “Existing Senior Notes Indenture Supplement” shall mean the Supplemental Indenture,
dated as of February 27, 2007, to the Existing Senior Notes Indenture entered into by the Borrower,
the Subsidiary Guarantors and The Bank of New York, as trustee, in connection with the Existing
Senior Notes Tender Offer/Consent Solicitation




          “Existing Senior Notes Redemption” shall have the meaning provided in Section
5.06(b)




          “Existing Senior Notes Redemption Date” shall have the meaning provided in Section
5.06(b)




          “Existing Senior Notes Tender Offer/Consent Solicitation” shall have the meaning
provided in Section 5.06(a).





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          “Existing Senior Notes Tender Offer/Consent Solicitation Documents” shall mean the
Offer to Purchase, the Letter of Transmittal and Consent Solicitation Statement dated January 29,
2007, the Existing Senior Notes Indenture Supplement and the other documents entered into as part
of the Existing Senior Notes Tender Offer/Consent Solicitation, as the same may be amended or
supplemented from time to time in accordance with the terms thereof and hereof.




          “Existing Senior Notes Trustee” shall mean The Bank of New York, as trustee under the
Existing Senior Notes Indenture.




          “Facing Fee” shall have the meaning provided in Section 3.01(c).




          “Federal Funds Rate” shall mean, for any period, a fluctuating interest rate equal for
each day during such period to the weighted average of the rates on overnight Federal Funds
transactions with members of the Federal Reserve System arranged by Federal Funds brokers, as
published for such day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is
a Business Day, the average of the quotations for such day on such transactions received by the
Administrative Agent from three Federal Funds brokers of recognized standing selected by the
Administrative Agent.




          “Fees” shall mean all amounts payable pursuant to or referred to in Section
3.01.




          “Foreign Pension Plan” shall mean any plan, fund (including, without limitation, any
superannuation fund) or other similar program established or maintained outside the United States
of America by Holdings or any one or more of its Subsidiaries primarily for the benefit of
employees of Holdings or such Subsidiaries residing outside the United States, which plan, fund or
other similar program provides, or results in, retirement income, a deferral of income in
contemplation of retirement or payments to be made upon termination of employment, and which plan
is not subject to ERISA or the Code.




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




          “Hazardous Materials” shall mean (a) any petroleum or petroleum products, radioactive
materials, asbestos in any form that is or could become friable, urea formaldehyde foam insulation,
dielectric fluid containing levels of polychlorinated biphenyls, and radon gas; (b) any chemicals,
materials or substances defined as or included in the definition of “hazardous substances,”
“hazardous waste,” “hazardous materials,” “extremely hazardous substances,” “restricted hazardous
waste,” “toxic substances,” “toxic pollutants,” “contaminants,” or “pollutants,” or words of
similar import, under any applicable Environmental Law; and (c) any other chemical, material or
substance, the exposure to, or Release of which is prohibited, limited or regulated by any
governmental authority.




          “Holdings” shall have the meaning set forth in the first paragraph of this Agreement.




          “Holdings Common Stock” shall have the meaning provided in Section 7.13.




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          “Holdings Pledge Agreement” shall have the meaning provided in Section
5.10(b).




          “Holdings Tax Sharing Agreement” shall mean the Tax Sharing Agreement entered into
between the Borrower and Holdings, in the form delivered to the Administrative Agent pursuant to
Section 5.05, as the same may be amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.




          “Incremental Term Loan” shall have the meaning provided in Section 1.01(c).




          “Incremental Term Loan Borrowing Date” shall mean, with respect to each Tranche of
Incremental Term Loans, each date on which Incremental Term Loans of such Tranche are incurred
pursuant to Section 1.01(c) and as otherwise permitted by Section 1.14.




          “Incremental Term Loan Commitment” shall mean, for each Lender, any commitment to make
Incremental Term Loans provided by such Lender pursuant to Section 1.14, in such amount as
agreed to by such Lender in the respective Incremental Term Loan Commitment Agreement and as set
forth opposite such Lender’s name in Schedule I (as modified in accordance with Section
1.14) directly below the column entitled “Incremental Term Loan Commitment”, as the same may be
terminated pursuant to Section 3.03 or 10.




          “Incremental Term Loan Commitment Agreement” shall mean each Incremental Term Loan
Commitment Agreement in the form of Exhibit O (appropriately completed) executed in
accordance with Section 1.14.




          “Incremental Term Loan Commitment Requirements” shall mean, with respect to any
provision of Incremental Term Loan Commitments on an Incremental Term Loan Borrowing Date, the
satisfaction of each of the following conditions on such date: (i) no Default or Event of Default
then exists or would result therefrom (for purposes of such determination, assuming the relevant
Incremental Term Loans in an aggregate principal amount equal to the full amount of Incremental
Term Loan Commitments then provided had been incurred, and the proceeds of such Incremental Term
Loans had been applied, on such date) and all of the representations and warranties contained
herein and in the other Credit Documents are true and correct in all material respects at such time
(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); (ii)
calculations are made by Holdings demonstrating (I) compliance with the financial covenant
contained in Section 9.07 and (II) a Secured Leverage Ratio of no greater than 2.75:1.00,
in each case for the Calculation Period most recently ended prior to the respective Incremental
Term Loan Borrowing Date, on a Pro Forma Basis, as if the Incremental Term Loans to
be made pursuant to the Incremental Term Loan Commitments (assuming the full utilization thereof),
and the proceeds of such Incremental Term Loans had been applied, on the first day of such
Calculation Period; (iii) calculations are made by Holdings demonstrating that the full amount of
such Incremental Term Loans may be incurred under the Existing Holding
Note Documents, the Replacement Holdings Note Documents or the Borrower Note Documents, as
applicable; (iv) the delivery by the Holdings to the Administrative Agent on or prior to such date
of an officer’s certificate executed by an Authorized Financial Officer of the Borrower and
certifying as to compliance with preceding clauses (i), (ii) and (iii) and containing the

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calculations (in reasonable detail) required by preceding clauses (ii) and (iii); (v) the delivery
by the Borrower to the Administrative Agent on or prior to such date of an acknowledgement in form
and substance reasonably satisfactory to the Administrative Agent and executed by Holdings and each
Subsidiary Guarantor, acknowledging that such Incremental Term Loan Commitments and all Incremental
Term Loans to be incurred pursuant thereto shall constitute (and be included in the definition of)
“Guaranteed Obligations” under the Subsidiaries Guaranty; (vi) the delivery by the Borrower
to the Administrative Agent of an opinion or opinions, in form and substance reasonably
satisfactory to the Administrative Agent, from counsel to the Credit Parties reasonably
satisfactory to the Administrative Agent and dated such date, covering such of the matters set
forth in the opinions of counsel delivered to the Administrative Agent on the Initial Borrowing
Date pursuant to Section 5.03 as may be reasonably requested by the Administrative Agent,
and such other matters incident to the transactions contemplated thereby as the Administrative
Agent may reasonably request; (vii) the delivery by the Borrower to the Administrative Agent of
such officers’ certificates, board of director resolutions and evidence of good standing as the
Administrative Agent shall reasonably request; and (viii) the completion by the Borrower and the
other Credit Parties by such date of such other actions as the Administrative Agent may reasonably
request in connection with such Incremental Term Loan Commitments.




          “Incremental Term Loan Lender” shall have the meaning provided in Section
1.14(b).




          “Incremental Term Loan Maturity Date” shall mean, for any Tranche of Incremental Term
Loans, the final maturity date set forth for such Tranche of Incremental Term Loans in the
respective Incremental Term Loan Commitment Agreement, provided that the final maturity date for
all Incremental Term Loans of a given Tranche shall be the same date.




          “Incremental Term Note” shall have the meaning provided in Section 1.05(a).




          “Indebtedness” shall mean, as to any Person, without duplication, (i) all indebtedness
(including principal, interest, fees and charges) of such Person for borrowed money or for the
deferred purchase price of property or services, (ii) the maximum amount available to be drawn
under all letters of credit, bankers’ acceptances and similar obligations issued for the account of
such Person and all unpaid drawings in respect of such letters of credit, bankers’ acceptances and
similar obligations, (iii) all Indebtedness of the types described in clause (i), (ii), (iv), (v),
(vi) or (vii) of this definition secured by any Lien on any property owned by such Person, whether
or not such Indebtedness has been assumed by such Person (provided that, if the Person has
not assumed or otherwise become liable in respect of such Indebtedness, such Indebtedness shall be
deemed to be in an amount equal to the fair market value of the property to which such Lien relates
as determined in good faith by such Person), (iv) the aggregate amount of all Capitalized Lease
Obligations of such Person, (v) all obligations of such Person to pay a specified purchase price
for goods or services, whether or not delivered or accepted, i.e., take-or-pay and similar
obligations, (vi) all Contingent Obligations of such Person, and (vii) all
obligations under any Interest Rate Protection Agreement, any Other Hedging Agreement or under
any similar type of agreement. Notwithstanding the foregoing, Indebtedness shall not include trade
payables and accrued expenses incurred by any Person in accordance with customary practices and in
the ordinary course of business of such Person.




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          “Initial Borrowing Date” shall mean the date occurring on or after the Effective Date
on which the initial Borrowing of Loans occurs.




          “Initial Term Loan” shall have the meaning provided in Section 1.01(a).




          “Initial Term Loan Commitment” shall mean, for each Lender, the amount set forth
opposite such Lender’s name in Schedule I directly below the column entitled “Initial Term
Loan Commitment,” as the same may be terminated pursuant to Section 3.03 or 10.




          “Initial Term Loan Maturity Date” shall mean February 27, 2014; provided,
however, if any Existing Holdings Notes are outstanding on August 1, 2013, the Initial Term
Loan Maturity Date instead shall be August 1, 2013.




          “Initial Term Note” shall have the meaning provided in Section 1.05(a).




          “Intercompany Loan” shall have the meaning provided in Section 9.05(vii).




          “Interest Determination Date” shall mean, with respect to any Eurodollar Loan, the
second Business Day prior to the commencement of any Interest Period relating to such Eurodollar
Loan.




          “Interest Period” shall have the meaning provided in Section 1.09.




          “Interest Rate Protection Agreement” shall mean any interest rate swap agreement,
interest rate cap agreement, interest collar agreement, interest rate hedging agreement or other
similar agreement or arrangement.




          “Investments” shall have the meaning provided in Section 9.05.




          “Issuing Lender” shall mean each of DBTCA (except as otherwise provided in Section
12.09) and any other Lender reasonably acceptable to the Administrative Agent which agrees to
issue Letters of Credit hereunder. Any Issuing Lender may, in its discretion, arrange for one or
more Letters of Credit to be issued by one or more Affiliates of such Issuing Lender.




          “Joinder Agreement” shall mean a Joinder Agreement substantially in the form of
Exhibit M (appropriately completed).




          “L/C Supportable Obligations” shall mean (i) obligations of the Borrower or any of its
Subsidiaries with respect to workers’ compensation, surety bonds and other similar statutory
obligations, (ii) rental obligations of the Borrower or any of its Subsidiaries under Real Property
leases to which the Borrower or any of its Subsidiaries are a party to and (iii) such other
obligations of the Borrower or any of its Subsidiaries as are reasonably acceptable to the
respective Issuing Lender and otherwise permitted to exist pursuant to the terms of this
Agreement (other than obligations in respect of (u) Seller Financing, (v) the Existing
Holdings Notes, (w) the Replacement Holdings Notes, (x) the Borrower Notes, (y) any Indebtedness
that is subordinated to any of the Obligations and (z) and any capital stock or other Equity
Interests).





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          “Leaseholds” of any Person shall mean all the right, title and interest of such Person
as lessee or licensee in, to and under leases or licenses of land, improvements and/or fixtures.




          “Lender” shall mean each financial institution listed on Schedule I, as well
as any Person that becomes a “Lender” hereunder pursuant to Section 1.13 or
13.04(b).




          “Lender Default” shall mean (i) the refusal (which has not been retracted) or the
failure of a Lender to make available its portion of any Borrowing (including any Mandatory
Borrowing) or to fund its portion of any unreimbursed payment under Section 2.04(c) or (ii)
a Lender having notified in writing the Borrower and/or the Administrative Agent that such Lender
does not intend to comply with its obligations under Section 1.01(a), 1.01(b),
1.01(c) 1.01(e) or 2.




          “Letter of Credit” shall have the meaning provided in Section 2.01(a).




          “Letter of Credit Fee” shall have the meaning provided in Section 3.01(b).




          “Letter of Credit Outstandings” shall mean, at any time, the sum of (i) the Stated
Amount of all outstanding Letters of Credit and (ii) the aggregate amount of all Unpaid Drawings in
respect of all Letters of Credit.




          “Letter of Credit Request” shall have the meaning provided in Section 2.03(a).




          “Letter of Transmittal” shall have the meaning provided in Section 5.06.




          “License Subsidiary” shall mean TSI Holdings (IP), LLC, a Delaware limited liability
company and a Wholly-Owned Domestic Subsidiary of the Borrower.




          “Lien” shall mean any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), preference, priority or other security
agreement of any kind or nature whatsoever (including, without limitation, any conditional sale or
other title retention agreement, any financing or similar statement or notice filed under the UCC
or any other similar recording or notice statute, and any lease having substantially the same
effect as any of the foregoing).




          “Loan” shall mean each Term Loan, Revolving Loan and each Swingline Loan.




          “Majority Lenders” of any Tranche shall mean those Non-Defaulting Lenders which would
constitute the Required Lenders under, and as defined in, this Agreement if all outstanding
Obligations under the other Tranches under this Agreement were repaid in full and all Commitments
with respect thereto were terminated.




          “Management Agreements” shall have the meaning provided in Section 5.05.




          “Mandatory Borrowing” shall have the meaning provided in Section 1.01(e).




          “Margin Stock” shall have the meaning provided in Regulation U.




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          “Material Adverse Effect” shall mean (i) a material adverse effect on the business,
operations, property, assets, liabilities, condition (financial or otherwise) or prospects of
Holdings and its Subsidiaries taken as a whole or the Borrower and its Subsidiaries taken as a
whole or (ii) a material adverse effect (x) on the rights or remedies of the Lenders or the
Administrative Agent hereunder or under any other Credit Document or (y) on the ability of the
Credit Parties taken as a whole to perform their obligations to the Lenders or Administrative Agent
hereunder or under any other Credit Document.




          “Maturity Date” shall mean, with respect to the relevant Tranche of Loans, the Initial
Term Loan Maturity Date, each Incremental Term Loan Maturity Date, the Revolving Loan Maturity Date
or the Swingline Expiry Date, as the case may be.




          “Maximum Permitted Consideration” shall mean, with respect to any Permitted
Acquisition, the sum (without duplication) of (i) the fair market value of Holdings Common Stock
(based on (x) the closing and/or trading price of Holdings Common Stock on the date of such
Permitted Acquisition on the stock exchange on which Holdings Common Stock is listed or the
automated quotation system on which Common Stock is quoted, or (y) if Holdings Common Stock is not
listed on an exchange or quoted on a quotation system, the bid and asked prices of Holdings Common
Stock in the over-the-counter market at the close of trading or (z) if Holdings Common Stock is not
so listed, based on a good faith determination of the Board of Directors of Holdings) issued (or to
be issued) as consideration in connection with such Permitted Acquisition, (ii) the fair market
value of all Qualified Preferred Stock of Holdings (based on a good faith determination of the
Board of Directors of Holdings) issued (or to be issued) as consideration in connection with such
Permitted Acquisition, (iii) the aggregate principal amount of, and other obligations due under,
all Seller Financing and Permitted Acquired Debt incurred, issued, acquired and/or assumed by the
Borrower or any of its Subsidiaries in connection with such Permitted Acquisition, (iv) the
aggregate amount of all cash paid (or to be paid) by the Borrower or any of its Subsidiaries in
connection with such Permitted Acquisition (including payments of fees, costs, expenses and taxes
in connection therewith), (v) the aggregate principal amount of, and other obligations due under,
all other Indebtedness assumed, incurred and/or issued by the Borrower or any of its Subsidiaries
in connection with such Permitted Acquisition to the extent permitted by Section 9.04, (vi)
the aggregate amount that could reasonably be expected to be paid (based on good faith projections
prepared by Holdings) pursuant to any earn-out, non-compete, consulting or deferred compensation or
purchase price adjustment) for such Permitted Acquisition and (vii) the fair market value (based on
good faith projections prepared by the Borrower) of all other consideration payable in connection
with such Permitted Acquisition.




          “Maximum Swingline Amount” shall mean $2,000,000.




          “Minimum Borrowing Amount” shall mean (i) for Term Loans, $1,000,000, (ii) for
Revolving Loans, $500,000, and (iii) for Swingline Loans, $100,000.




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




          “NAIC” shall mean the National Association of Insurance Commissioners.




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          “Net Debt Proceeds” shall mean with respect to any incurrence of Indebtedness for
borrowed money, the cash proceeds (net of underwriting discounts and commissions and other
reasonable costs associated therewith) received by the respective Person from the respective
incurrence of such Indebtedness for borrowed money.




          “Net Recovery Event Proceeds” shall mean, with respect to any Recovery Event, the cash
proceeds (net of reasonable costs, expenses and taxes incurred in connection with such Recovery
Event) received by the respective Person in connection with such Recovery Event.




          “Net Sale Proceeds” shall mean, for any Asset Sale, the gross cash proceeds (including
any cash received by way of deferred payment pursuant to a promissory note, receivable or
otherwise, but only as and when received) received from such sale of assets, net of the reasonable
costs and expenses of such sale (including fees and commissions, payments of unassumed liabilities
relating to the assets sold and required payments of any Indebtedness (other than Indebtedness
secured pursuant to the Security Documents) which is secured by the respective assets which were
sold), and the incremental taxes paid or payable as a result of such Asset Sale.




          “Non-Compete Agreements” shall have the meaning provided in Section 5.05.




          “Non-Defaulting Lender” and “Non-Defaulting RL Lender” shall mean and include
each Lender or RL Lender, as the case may be, other than a Defaulting Lender.




          “Note” shall mean each Initial Term Note, each Incremental Term Note, Revolving Note
and the Swingline Note.




          “Notice of Borrowing” shall have the meaning provided in Section 1.03(a).




          “Notice of Conversion/Continuation” shall have the meaning provided in Section
1.06.




          “Notice Office” shall mean (i) for credit notices, the office of the Administrative
Agent located at 60 Wall Street, New York, New York 10005, Attention: Carin Keegan, Telephone No.:
(212) 250-6083, and Telecopier No.: (212) 797-5690, and (ii) for operational notices, the office of
the Administrative Agent located at 90 Hudson Street, 5th Floor, Jersey City, New Jersey
07302, Attention: Sandra Friedman, Telephone No.: (201) 593-2445, and Telecopier No.: (201)
593-2309, or such other office or person as the Administrative Agent may hereafter designate in
writing as such to the other parties hereto.




          “Obligations” shall mean all amounts owing to the Administrative Agent, the Collateral
Agent, any Issuing Lender, the Swingline Lender or any Lender pursuant to the terms of this
Agreement or any other Credit Document.




          “Offer to Purchase” shall have the meaning provided in Section 5.06.




          “Other Hedging Agreements” shall mean any foreign exchange contracts, currency swap
agreements, commodity agreements or other similar arrangements, or arrangements designed to protect
against fluctuations in currency values or commodity prices.





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          “Participant” shall have the meaning provided in Section 2.04(a).




          “Payment Office” shall mean the office of the Administrative Agent located at 90
Hudson Street, 5th Floor, Jersey City, New Jersey or such other office as the
Administrative Agent may hereafter designate in writing as such to the other parties hereto.




          “PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to
Section 4002 of ERISA, or any successor thereto.




          “Permissible Transferees” shall mean in the case of BRS or any BRS Investor, (A) any
Affiliate of BRS, (B) any managing director, general partner, limited partner (but, in the case of
any limited partner, only to the extent that such limited partner receives its shares of equity in
Holdings through a pro rata in-kind distribution from the existing fund through
which such limited partner’s investment in Holdings is held), director, officer or employee of BRS
or any Affiliate thereof (collectively, “BRS Associates”), and his or her spouse, parents,
siblings, members of his or her immediate family (including adopted children) and/or direct lineal
descendants or (C) the heirs, executors, administrators, testamentary trustees, legatees or
beneficiaries of any BRS Associate and (D) any trust, the beneficiaries of which, or a corporation
or partnership, the stockholders or partners of which, include only a BRS Associate, his or her
spouse, parents, siblings, or direct lineal descendants.




          “Permitted Acquired Debt” shall have the meaning provided in Section 9.04(vi).




          “Permitted Acquisition” shall mean the acquisition by the Borrower or a Wholly-Owned
Domestic Subsidiary of the Borrower which is a Subsidiary Guarantor of an Acquired Entity or
Business (including by way of merger of such Acquired Entity or Business with and into the Borrower
(so long as the Borrower is the surviving Person) or a Wholly-Owned Domestic Subsidiary of the
Borrower which is a Subsidiary Guarantor (so long as a Wholly-Owned Domestic Subsidiary that is a
Subsidiary Guarantor is the surviving Person)), provided that (in each case) (A) the
consideration paid or to be paid by the Borrower or such Wholly-Owned Domestic Subsidiary consists
solely of the type of consideration set forth in the definition of “Maximum Permitted
Consideration”, (B) in the case of the acquisition of 100% of the capital stock or other Equity
Interests of any Person (including way of merger), such Person shall own no capital stock or other
Equity Interests of any other Person (excluding de minimis amounts) unless either (x) such Person
owns 100% of the capital stock or other Equity Interests of such other Person or (y) (1) such
Person and/or its Wholly-Owned Subsidiaries own at least 80% of the consolidated assets of such
Person and its Subsidiaries and (2) any non-Wholly Owned Subsidiary of such Person was non-Wholly
Owned prior to the date of such Permitted Acquisition of such Person, (C) at least 90% of the
consolidated assets and consolidated revenues of the business, division or product line acquired
pursuant to the respective Permitted Acquisition, or of the business of the Person acquired
pursuant to the respective Permitted Acquisition and its Subsidiaries taken as a whole, is in the
United States, (D) the Acquired Entity or Business acquired pursuant to the respective Permitted
Acquisition is in a business permitted
by Section 9.11 and (E) all requirements of Sections 8.16, 9.02 and
9.12 applicable to Permitted Acquisitions are satisfied. Notwithstanding anything to the
contrary contained in the immediately preceding sentence, an acquisition which does not otherwise
meet the requirements set forth above in the definition of “Permitted Acquisition” shall
constitute a Permitted

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Acquisition if, and to the extent, the Required Lenders agree in writing,
prior to the consummation thereof, that such acquisition shall constitute a Permitted Acquisition
for purposes of this Agreement.




          “Permitted Acquisition Basket Amount” shall mean the remainder of (A) initially,
$100,000,000, provided that on the first day of each fiscal year of the Holdings,
commencing on January 1, 2008, such amount shall be increased by $25,000,000 above the amount
theretofore in effect, minus (B) the aggregate Maximum Permitted Consideration theretofore
paid in respect of other Permitted Acquisitions.




          “Permitted Liens” shall have the meaning provided in Section 9.01.




          “Person” shall mean any individual, partnership, joint venture, firm, corporation,
association, limited liability company, trust or other enterprise or any government or political
subdivision or any agency, department or instrumentality thereof.




          “Plan” shall mean any pension plan as defined in Section 3(2) of ERISA, which is
maintained or contributed to by (or to which there is an obligation to contribute of) Holdings or a
Subsidiary of Holdings or an ERISA Affiliate, and each such plan for the five year period
immediately following the latest date on which Holdings, a Subsidiary of Holdings or an ERISA
Affiliate maintained, contributed to or had an obligation to contribute to such plan.




          “Pledge Agreement” shall mean each of the Holdings Pledge Agreement and the
Borrower/Sub Pledge Agreement, as applicable.




          “Pledge Agreement Collateral” shall mean all “Collateral” as defined in each Pledge
Agreement.




          “Pledgee” shall have the meaning provided in the Pledge Agreement.




          “Prime Lending Rate” shall mean the rate which the Administrative Agent announces from
time to time as its prime lending rate, the Prime Lending Rate to change when and as such prime
lending rate changes. The Prime Lending Rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged to any customer by the Administrative Agent,
which may make commercial loans or other loans at rates of interest at, above or below the Prime
Lending Rate.




          “Pro Forma Basis” shall mean, in connection with any calculation of compliance with
any financial covenant or financial term, the calculation thereof
after giving effect on a pro
forma basis to (x) the incurrence of any Indebtedness (other than revolving Indebtedness, except to
the extent same is incurred to refinance other outstanding Indebtedness or to finance a Permitted
Acquisition) after the first day of the relevant Calculation Period or Test Period, as the case may
be, as if such Indebtedness had been incurred (and the proceeds thereof applied) on the first day
of such Test Period or Calculation Period, as the case may be, (y) the permanent
repayment of any Indebtedness (other than revolving Indebtedness, except to the extent
accompanied by a corresponding permanent commitment reduction) after the first day of the relevant
Test Period or Calculation Period, as the case

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may be, as if such Indebtedness had been retired,
repaid or redeemed on the first day of such Test Period or Calculation Period, as the case may be,
and (z) any Permitted Acquisition or any Significant Asset Sale then being consummated as well as
any other Permitted Acquisition or any other Significant Asset Sale if consummated after the first
day of the relevant Test Period or Calculation Period, as the case may be, and on or prior to the
date of the respective Permitted Acquisition or Significant Asset Sale, as the case may be, then
being effected, with the following rules to apply in connection therewith:





     (i) all Indebtedness (x) (other than revolving Indebtedness, except to the extent same
is incurred to refinance other outstanding Indebtedness or to finance Permitted
Acquisitions) incurred or issued after the first day of the relevant Test Period or
Calculation Period (whether incurred to finance a Permitted Acquisition, to refinance
Indebtedness or otherwise) shall be deemed to have been incurred or issued (and the proceeds
thereof applied) on the first day of such Test Period or Calculation Period, as the case may
be, and remain outstanding through the date of determination and (y) (other than revolving
Indebtedness, except to the extent accompanied by a corresponding permanent commitment
reduction) permanently retired, repaid or redeemed after the first day of the relevant Test
Period or Calculation Period, as the case may be, shall be deemed to have been retired,
repaid or redeemed on the first day of such Test Period or Calculation Period, as the case
may be, and remain retired through the date of determination;




     (ii) all Indebtedness assumed to be outstanding pursuant to preceding clause (i) shall
be deemed to have borne interest at (x) the rate applicable thereto, in the case of fixed
rate indebtedness, or (y) the rates which would have been applicable thereto during the
respective period when same was deemed outstanding, in the case of floating rate
Indebtedness (although interest expense with respect to any Indebtedness for periods while
same was actually outstanding during the respective period shall be calculated using the
actual rates applicable thereto while same was actually outstanding); and




     (iii) in making any determination of Consolidated EBITDA, pro forma effect shall be
given to any Permitted Acquisition or any Significant Asset Sale effected during the
respective Calculation Period or Test Period as if same had occurred on the first day of the
respective Calculation Period or Test Period, as the case may be, taking into account, in
the case of any Permitted Acquisition, factually supportable and identifiable cost savings
and expenses which would otherwise be permitted to be accounted for as an adjustment
pursuant to Article 11 of Regulation S-X under the Securities Act, as if such cost savings
or expenses were realized on the first day of the respective period.



          “Projections” shall mean the projections that are contained in the Confidential
Information Memorandum dated January 2007 and that were prepared by or on behalf of the Borrower in
connection with the Transaction and delivered to the Administrative Agent and the Lenders prior to
the Initial Borrowing Date.




          “Qualified Preferred Stock” shall mean any preferred stock of Holdings so long as (A)
in each case the terms of any such preferred stock (i) do not contain any mandatory put,
redemption, repayment, sinking fund or other similar provision, (ii) do not require the cash
payment of dividends, (iii) do not contain any covenants (other than financial reporting

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covenants), (iv) do not grant the holders thereof any voting rights except for (x) voting rights
required to be granted to such holders under applicable law and (y) limited customary voting rights
on fundamental matters such as mergers, consolidations, sales of all or substantially all of the
assets of Holdings, or liquidations involving Holdings, and (v) are otherwise reasonably
satisfactory to the Administrative Agent.




          “Quarterly Payment Date” shall mean the last Business Day of each September, December,
March and June occurring after the Initial Borrowing Date, commencing on March 31, 2007.




          “Quarterly Pricing Certificate” shall have the meaning set forth in the definition of
“Applicable Commitment Commission Percentage” and “Applicable Margin”.




          “Real Property” of any Person shall mean all the right, title and interest of such
Person in and to land, improvements and fixtures, including Leaseholds.




          “Recovery Event” shall mean the receipt by Holdings or any of its Subsidiaries of any
cash insurance proceeds or condemnation awards payable (i) by reason of theft, loss, physical
destruction, damage, taking or any other similar event with respect to any property or assets of
Holdings or any of its Subsidiaries and (ii) under any policy of insurance required to be
maintained under Section 8.03 (in either case, excluding any business interruption
insurance proceeds).




          “Refinancing” shall mean the repayment of all outstanding loans and all other
obligations (and the termination of all commitments) under the Existing Credit Agreement.




          “Register” shall have the meaning provided in Section 13.15.




          “Regulation D” shall mean Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor to all or a portion thereof
establishing reserve requirements.




          “Regulation T” shall mean Regulation T of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor to all or a portion thereof.




          “Regulation U” shall mean Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor to all or a portion thereof.




          “Regulation X” shall mean Regulation X of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor to all or a portion thereof.




          “Release” shall mean actively or passively disposing, discharging, injecting,
spilling, pumping, leaking, leaching, dumping, emitting, escaping, emptying, pouring, seeping,
migrating or the like, into or upon any land or water or air, or otherwise entering into the
environment.




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          “Replacement Holdings Note Documents” shall mean the Replacement Holdings Note
Indenture, the Replacement Holdings Notes and each other document or agreement relating to the
issuance of the Replacement Holdings Notes.




          “Replacement Holdings Note Indenture” shall mean the Indenture to be entered into
between Holdings and the trustee thereunder pursuant to which the Replacement Holdings Notes are to
be issued, as the same may be amended, modified or supplemented from time to time in accordance
with the terms hereof and thereof.




          “Replacement Holdings Notes” shall have the meaning provided in Section
9.04(xi), as the same may be amended or supplemented from time to time in accordance with the
terms thereof and hereof.




          “Replaced Lender” shall have the meaning provided in Section 1.13.




          “Replacement Lender” shall have the meaning provided in Section 1.13.




          “Reportable Event” shall mean an event described in Section 4043(c) of ERISA with
respect to a Plan that is subject to Title IV of ERISA other than those events as to which the
30-day notice period is waived under subsection .22, .23, .25, .27 or .28 of PBGC Regulation
Section 4043.




          “Required Lenders” shall mean, at any time, Non-Defaulting Lenders the sum of whose
outstanding Term Loans and Revolving Loan Commitments at such time (or, after the termination
thereof, outstanding Revolving Loans and RL Percentages of (x) outstanding Swingline Loans at such
time and (y) Letter of Credit Outstandings at such time) represents at least 50.1% of the sum of
(i) all outstanding Term Loans of Non-Defaulting Lenders of such time and (ii) the Total Revolving
Loan Commitment in effect at such time less the Revolving Loan Commitments of all Defaulting
Lenders at such time (or, after the termination thereof, the sum of then total outstanding
Revolving Loans of Non-Defaulting Lenders and the aggregate RL Percentages of all Non-Defaulting
Lenders of the total outstanding Swingline Loans and Letter of Credit Outstandings at such time).




          “Returns” shall have the meaning provided in Section 7.09.




          “Revolver Event of Default” shall mean any Event of Default under Section
10.03 as a result of Holdings and the Borrower failing to be in compliance with Section
9.07.




          “Revolving Loan” shall have the meaning provided in Section 1.01(b).




          “Revolving Loan Commitment” shall mean, for each Lender, the amount set forth opposite
such Lender’s name in Schedule I directly below the column entitled “Revolving Loan
Commitment,” as same may be (x) reduced from time to time or terminated pursuant to Sections
 3.02, 3.03 and/or 10, as applicable, or (y) adjusted from time to time
as a result of assignments to or from such Lender pursuant to Section 1.13 or
13.04(b).




          “Revolving Loan Maturity Date” shall mean February 27, 2012.




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          “Revolving Note” shall have the meaning provided in Section 1.05(a).




          “Revolving Obligations” shall mean and include all Obligations relating to the Total
Revolving Loan Commitment and to the Revolving Loans, Swingline Loans and Letters of Credit.




          “RL Lender” shall mean each Lender with a Revolving Loan Commitment or with
outstanding Revolving Loans.




          “RL Percentage” of any RL Lender at any time shall mean a fraction (expressed as a
percentage) the numerator of which is the Revolving Loan Commitment of such Lender at such time and
the denominator of which is the Total Revolving Loan Commitment at such time, provided that
if the RL Percentage of any RL Lender is to be determined after the Total Revolving Loan Commitment
has been terminated, then the RL Percentage of such RL Lender shall be determined immediately prior
(and without giving effect) to such termination.




          “S&P” shall mean Standard & Poor’s Ratings Services, a division of McGraw-Hill, Inc.




          “Scheduled Incremental Term Loan Repayment” shall have the meaning provided in
Section 4.02(b)(ii).




          “Scheduled Incremental Term Loan Repayment Date” shall have the meaning provided in
Section 4.02(b)(ii).




          “Scheduled Initial Term Loan Repayment” shall have the meaning provided in Section
4.02(b)(i).




          “Scheduled Initial Term Loan Repayment Date” shall have the meaning provided in
Section 4.02(b)(i).




          “Scheduled Term Loan Repayment” shall mean each Scheduled Initial Term Loan Repayment
and each Scheduled Incremental Term Loan Repayment of a given Tranche, as the context may require.




          “Scheduled Term Loan Repayment Date” shall mean each Scheduled Initial Term Loan
Repayment Date and each Scheduled Incremental Term Loan Repayment Date of a given Tranche, as the
context may require.




          “SEC” shall have the meaning provided in Section 8.01(h).




          “Section 4.04(b)(ii) Certificate” shall have the meaning provided in Section
4.04(b)(ii).




          “Secured Creditors” shall have the meaning assigned that term in the respective
Security Documents.




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          “Secured Leverage Ratio” shall mean, at any date of determination, the ratio of
Consolidated Secured Indebtedness on such date to Consolidated EBITDA for the Test Period last
ended on or prior to such date.




          “Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.




          “Security Agreement” shall have the meaning provided in Section 5.11.




          “Security Agreement Collateral” shall mean all “Collateral” as defined in the Security
Agreement.




          “Security Document” shall mean and include each of the Security Agreement, the
Borrower/Sub Pledge Agreement, the Holdings Pledge Agreement and, after the execution and delivery
thereof, each Additional Security Document.




          “Seller Financing” shall mean Indebtedness of the Borrower or a Subsidiary Guarantor
issued as consideration to a seller of assets (including equity) pursuant to a Permitted
Acquisition.




          “Shareholders’ Agreements” shall have the meaning provided in Section 5.05.




          “Significant Asset Sale” shall mean each Asset Sale (or series of related Asset Sales)
which generates Net Sale Proceeds of at least $5,000,000.




          “Specified Default” shall mean any Default under Section 10.01 or
10.05.




          “Start Date” shall mean each date of delivery of a Quarterly Pricing Certificate
pursuant to the definition of “Applicable Commitment Commission Percentage” and
“Applicable Margin” contained herein.




          “Stated Amount” of each Letter of Credit shall mean, at any time, the maximum amount
available to be drawn thereunder (in each case determined without regard to whether any conditions
to drawing could then be met).




          “Subsidiaries Guaranty” shall have the meaning provided in Section 5.12.




          “Subsidiary” shall mean, as to any Person, (i) any corporation more than 50% of whose
stock of any class or classes having by the terms thereof ordinary voting power to elect a majority
of the directors of such corporation (irrespective of whether or not at the time stock of any class
or classes of such corporation shall have or might have voting power by reason of the happening of
any contingency) is at the time owned by such Person and/or one or more Subsidiaries of such Person
and (ii) any partnership, limited liability company, association, joint venture or other entity in
which such Person and/or one or more Subsidiaries of such Person has more than a 50% equity
interest at the time.




          “Subsidiary Guarantor” shall mean each Domestic Subsidiary of the Borrower and, to the
extent required by Section 8.13, each Foreign Subsidiary of the Borrower.




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          “Swingline Expiry Date” shall mean that date which is five Business Days prior to the
Revolving Loan Maturity Date.




          “Swingline Lender” shall mean DBTCA for so long as DBTCA is the Administrative Agent
hereunder and thereafter shall mean the successor Administrative Agent in its individual capacity.




          “Swingline Loan” shall have the meaning provided in Section 1.01(d).




          “Swingline Note” shall have the meaning provided in Section 1.05(a).




          “Swiss Clubs Sale” shall mean either (x) the sale of any or all of the clubs owned by
the Swiss Subsidiary on the Effective Date or (y) the sale of all the capital stock of the Swiss
Subsidiary so long as the only clubs included in such sale are those clubs owned by the Swiss
Subsidiary on the Effective Date (it being understood that, in the case of this clause (y), to the
extent that clubs other than those owned by the Swiss Subsidiary on the Effective date are included
in such sale, the sale of such clubs shall only be permitted to the extent such clubs could be sold
at such time pursuant to (and utilize the basket under) Section 9.02(iv)).




          “Swiss Subsidiary” shall mean Town Sports, A.G., a corporation organized under the
laws of Switzerland and a Wholly Owned Foreign Subsidiary of the Borrower.




          “Syndication Date” shall mean that date upon which the Administrative Agent determines
in its sole discretion (and notifies the Borrower) that the primary syndication (and resultant
addition Persons as Lenders pursuant to Section 13.04(b)) has been completed.




          “Tax Benefit” shall have the meaning provided in Section 4.04(c).




          “Tax Sharing Agreements” shall have the meaning provided in Section 5.05.




          “Taxes” shall have the meaning provided in Section 4.04(a).




          “Term Loan” shall mean each Initial Term Loan and each Incremental Term Loan.




          “Term Loan Commitments” shall mean, collectively, the Initial Term Loan Commitments
and the Incremental Term Loan Commitments.




          “Term Loan Percentage” of a Tranche of Term Loans shall mean, at any time, a fraction
(expressed as a percentage), the numerator of which is equal to the aggregate outstanding principal
amount of all Term Loans of such Tranche at such time and the denominator of which is equal to the
aggregate outstanding principal amount of all Term Loans of all Tranches at such time.




          “Test Period” shall mean each period of four consecutive fiscal quarters of Holdings
then last ended (in each case taken as one accounting period).




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          “Total Commitment” shall mean, at any time, the sum of the Commitments of each of the
Lenders at such time.




          “Total Initial Term Loan Commitment” shall mean, at any time, the sum of the Initial
Term Loan Commitments of each of the Lenders at such time.




          “Total Incremental Term Loan Commitment” of any Tranche of Incremental Term Loans
shall mean, at any time, the sum of the Incremental Term Loan Commitments of such Tranche of each
of the Lenders at such time.




          “Total Leverage Ratio” shall mean, at any date of determination, the ratio of
Consolidated Indebtedness on such date to Consolidated EBITDA for the Test Period last ended on or
prior to such date.




          “Total Revolving Loan Commitment” shall mean, at any time, the sum of the Revolving
Loan Commitments of each of the Lenders at such time.




          “Total Unutilized Revolving Loan Commitment” shall mean, at any time, an amount equal
to the remainder of (x) the Total Revolving Loan Commitment then in effect less (y) the sum of the
aggregate principal amount of all Revolving Loans and Swingline Loans then outstanding plus the
aggregate amount of all Letter of Credit Outstandings.




          “Tranche” shall mean the respective facility and commitments utilized in making Loans
hereunder, with there being three separate Tranches on the Effective Date, i.e., Initial Term
Loans, Revolving Loans and Swingline Loans. In addition, and notwithstanding the foregoing, any
Incremental Term Loans extended after the Initial Borrowing Date shall, except to the extent
provided in Section 1.14(c), be made pursuant to one or more additional Tranches of Term
Loans which shall be designated pursuant to the respective Incremental Term Loan Commitment
Agreement in accordance with the relevant requirements specified in Section 1.14.




          “Transaction” shall mean, collectively, (i) the consummation of the Refinancing, (ii)
the consummation of the Existing Senior Notes Tender Offer/Consent Solicitation and the Existing
Senior Notes Redemption, (iii) the entering into of the Credit Documents on the Initial Borrowing
Date and the incurrence of Initial Term Loans on such date and (iv) the payment of all fees and
expenses in connection with the foregoing.




          “Transaction Expenses” shall mean all fees and expenses incurred in connection with,
and payable prior to or in connection with the closing of, the Transaction and the transactions
contemplated in connection with the Transaction, including all closing fees paid to any of the
Lenders and the Administrative Agent hereunder, attorney’s fees, accountants’ fees, placement
agents’ fees, discounts, commissions and brokerage fees and consultant fees.




          “Type” shall mean the type of Loan determined with regard to the interest option
applicable thereto, i.e., whether a Base Rate Loan or a Eurodollar Loan.




          “UCC” shall mean the Uniform Commercial Code as from time to time in effect in the
relevant jurisdiction.




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          “Unfunded Current Liability” of any Plan shall mean the amount, if any, by which the
actuarial present value of the accumulated benefits under the Plan as of the close of its most
recent plan year exceeds the fair market value of the assets allocable thereto, each determined in
accordance with Statement of Financial Accounting Standards No. 87, based upon the actuarial
assumptions used by the Plan’s actuary in the most recent annual valuation of the Plan.




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




          “Unpaid Drawing” shall have the meaning provided in Section 2.05(a).




          “Unutilized Revolving Loan Commitment” shall mean, with respect to any Lender at any
time, such Lender’s Revolving Loan Commitment at such time less the sum of (i) the aggregate
outstanding principal amount of all Revolving Loans made by such Lender at such time and (ii) such
Lender’s RL Percentage of the Letter of Credit Outstandings at such time.




          “Voting Equity Interests” shall mean, as to any Person, any class or classes of
outstanding Equity Interests of such Person pursuant to which the holders thereof have the general
voting power under ordinary circumstances to elect at least a majority of the board of directors of
such Person.




          “Weighted Average Life to Maturity” shall mean, when applied to any Indebtedness at
any date, the number of years obtained by dividing (i) the then outstanding principal amount of
such Indebtedness into (ii) the product obtained by multiplying (x) the amount of each then
remaining installment or other required scheduled payments of principal, including payment at final
maturity, in respect thereof, by (y) the number of years (calculated to the nearest one-twelfth)
that will elapse between such date and the making of such payment.




          “Wholly-Owned Domestic Subsidiary” shall mean, as to any Person, any Wholly-Owned
Subsidiary of such Person which is also a Domestic Subsidiary of such Person.




          “Wholly-Owned Foreign Subsidiary” shall mean, as to any Person, any Wholly-Owned
Subsidiary of such Person which is also a Foreign Subsidiary of such Person.




          “Wholly-Owned Subsidiary” shall mean, as to any Person, (i) any corporation 100% of
whose capital stock (other than, in the case of a Foreign Subsidiary, director’s qualifying shares
and nominal amount of shares held by local nationals, in each case to the extent required by
applicable law) is at the time owned by such Person and/or one or more Wholly-Owned Subsidiaries of
such Person and (ii) any partnership, limited liability company, association, joint venture or
other entity in which such Person and/or one or more Wholly-Owned Subsidiaries of such Person has a
100% equity interest at such time. Unless otherwise indicated herein, or the context otherwise
requires, all references herein to any Wholly-Owned Subsidiary or Wholly-Owned Subsidiaries shall
mean and be deemed to be references to a Wholly-Owned Subsidiary or Wholly-Owned Subsidiaries, as
the case may be, of the Borrower.




          SECTION 12. The Administrative Agent.




          12.01 Appointment. The Lenders hereby irrevocably designate and appoint DBTCA as
Administrative Agent (for purposes of this Section 12 and Section 13.01, the term

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“Administrative Agent” also shall include (x) DBTCA in its capacity as Collateral Agent pursuant to
the Security Documents and (y) Deutsche Bank Securities Inc., an affiliate of DBTCA, in its
capacity as the Lead Arranger and Book Manager in connection with this Agreement and the financings
contemplated hereby) to act as specified herein and in the other Credit Documents. Each Lender
hereby irrevocably authorizes, and each holder of any Note by the acceptance of such Note shall be
deemed irrevocably to authorize, the Administrative Agent to take such action on its behalf under
the provisions of this Agreement, the other Credit Documents and any other instruments and
agreements referred to herein or therein and to exercise such powers and to perform such duties
hereunder and thereunder as are specifically delegated to or required of the Administrative Agent
by the terms hereof and thereof and such other powers as are reasonably incidental thereto. The
Administrative Agent may perform any of its respective duties hereunder by or through its officers,
directors, agents, employees or affiliates.




          12.02 Nature of Duties. (a) The Administrative Agent shall not have any duties or
responsibilities except those expressly set forth in this Agreement and in the other Credit
Documents. Neither the Administrative Agent nor any of its officers, directors, agents, employees
or affiliates shall be liable for any action taken or omitted by it or them hereunder or under any
other Credit Document or in connection herewith or therewith, unless caused by its or their gross
negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and
non-appealable decision). The duties of the Administrative Agent shall be mechanical and
administrative in nature; the Administrative Agent shall not have by reason of this Agreement or
any other Credit Document a fiduciary relationship in respect of any Lender or the holder of any
Note; and nothing in this Agreement or in any other Credit Document, expressed or implied, is
intended to or shall be so construed as to impose upon the Administrative Agent any obligations in
respect of this Agreement or any other Credit Document except as expressly set forth herein or
therein.




          (b) Notwithstanding any other provision of this Agreement or any provision of any other Credit
Document, the Lead Arranger is named as such for recognition purposes only, and in its capacity as
such shall have no powers, duties, responsibilities or liabilities with respect to this Agreement
or the other Credit Documents or the transactions contemplated hereby and thereby; it being
understood and agreed that the Lead Arranger shall be entitled to all indemnification and
reimbursement rights in favor of the Administrative Agent as, and to the extent, provided for under
Sections 12.06 and 13.01. Without limitation of the foregoing, the Lead Arranger
shall not, solely by reason of this Agreement or any other Credit Documents, have any fiduciary
relationship in respect of any Lender or any other Person.




          12.03 Lack of Reliance on the Administrative Agent. Independently and without reliance
upon the Administrative Agent, each Lender and the holder of each Note, to the extent it deems
appropriate, has made and shall continue to make (i) its own independent investigation of the
financial condition and affairs of Holdings and its Subsidiaries in connection with the making and
the continuance of the Loans and the taking or not taking of any action in connection herewith and
(ii) its own appraisal of the creditworthiness of Holdings and its Subsidiaries and, except as
expressly provided in this Agreement, the Administrative Agent shall not have any duty or
responsibility, either initially or on a continuing basis, to provide any Lender or the holder of
any Note with any credit or other information with respect thereto, whether coming

 -108- 









 








into its
possession before the making of the Loans or at any time or times thereafter. The Administrative
Agent shall not be responsible to any Lender or the holder of any Note for any recitals,
statements, information, representations or warranties herein or in any document, certificate or
other writing delivered in connection herewith or for the execution, effectiveness, genuineness,
validity, enforceability, perfection, collectibility, priority or sufficiency of this Agreement or
any other Credit Document or the financial condition of Holdings or any of its Subsidiaries or be
required to make any inquiry concerning either the performance or observance of any of the terms,
provisions or conditions of this Agreement or any other Credit Document, or the financial condition
of Holdings or any of its Subsidiaries or the existence or possible existence of any Default or
Event of Default.




          12.04 Certain Rights of the Administrative Agent. If the Administrative Agent requests
instructions from the Required Lenders or the Majority Lenders of the relevant Tranche (as
applicable) with respect to any act or action (including failure to act) in connection with this
Agreement or any other Credit Document, the Administrative Agent shall be entitled to refrain from
such act or taking such action unless and until the Administrative Agent shall have received
instructions from the Required Lenders or such Majority Lenders (as applicable); and the
Administrative Agent shall not incur liability to any Lender by reason of so refraining. Without
limiting the foregoing, neither any Lender nor the holder of any Note shall have any right of
action whatsoever against the Administrative Agent as a result of the Administrative Agent acting
or refraining from acting hereunder or under any other Credit Document in accordance with the
instructions of the Required Lenders or the Majority Lenders of the respective Tranche (as
applicable).




          12.05 Reliance. The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, statement, certificate, telex,
teletype or telecopier message, cablegram, radiogram, order or other document or telephone message
signed, sent or made by any Person that the Administrative Agent believed to be the proper Person,
and, with respect to all legal matters pertaining to this Agreement and any other Credit Document
and its duties hereunder and thereunder, upon advice of counsel selected by the Administrative
Agent.




          12.06 Indemnification. To the extent the Administrative Agent (or any affiliate thereof) is not reimbursed and
indemnified by the Borrower, the Lenders will reimburse and indemnify the Administrative Agent (and
any affiliate thereof) in proportion to their respective “percentage” as used in determining the
Required Lenders (determined as if there were no Defaulting Lenders) for and against any and all
liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses
or disbursements of whatsoever kind or nature (including, without limitation, any customary
indemnifications provided to a deposit account bank pursuant to a “control agreement” referred to
in the Security Agreement) which may be imposed on, asserted against or incurred by the
Administrative Agent (or any affiliate thereof) in performing its duties hereunder or under any
other Credit Document (including with respect to any agreements or other instruments referred to
herein or therein) or in any way relating to or arising out of this Agreement or any other Credit
Document; provided that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or
disbursements resulting from the




 -109- 









 







Administrative Agent’s (or such affiliate’s) gross negligence or
willful misconduct (as determined by a court of competent jurisdiction in a final and
non-appealable decision).




          12.07 The Administrative Agent in its Individual Capacity. With respect to its obligation
to make Loans, or issue or participate in Letters of Credit, under this Agreement, the
Administrative Agent shall have the rights and powers specified herein for a “Lender” and
may exercise the same rights and powers as though it were not performing the duties specified
herein; and the term “Lender,” “Required Lenders,” “Majority Lenders”
“holders of Notes” or any similar terms shall, unless the context clearly indicates otherwise,
include the Administrative Agent in its respective individual capacities. The Administrative Agent
and its affiliates may accept deposits from, lend money to, and generally engage in any kind of
banking, investment banking, trust or other business with, or provide debt financing, equity
capital or other services (including financial advisory services) to any Credit Party or any
Affiliate of any Credit Party (or any Person engaged in a similar business with any Credit Party or
any Affiliate thereof) as if they were not performing the duties specified herein, and may accept
fees and other consideration from any Credit Party or any Affiliate of any Credit Party for
services in connection with this Agreement and otherwise without having to account for the same to
the Lenders.




          12.08 Holders. The Administrative Agent may deem and treat the payee of any Note as the
owner thereof for all purposes hereof unless and until a written notice of the assignment, transfer
or endorsement thereof, as the case may be, shall have been filed with the Administrative Agent.
Any request, authority or consent of any Person who, at the time of making such request or giving
such authority or consent, is the holder of any Note shall be conclusive and binding on any
subsequent holder, transferee, assignee or endorsee, as the case may be, of such Note or of any
Note or Notes issued in exchange therefor.




          12.09 Resignation by the Administrative Agent. (a) The Administrative Agent may resign from the performance of all its respective functions
and duties hereunder and/or under the other Credit Documents at any time by giving 15 Business
Days’ prior written notice to the Lenders and, unless a Default or an Event of Default under
Section 10.05 then exists, the Borrower. Any such resignation by an Administrative Agent
hereunder shall also constitute its resignation as an Issuing Lender and the Swingline Lender, in
which case the resigning Administrative Agent (x) shall not be required to issue any further
Letters of Credit or make any additional Swingline Loans hereunder and (y) shall maintain all of
its rights as Issuing Lender or Swingline Lender, as the case may be, with respect to any Letters
of Credit issued by it, or Swingline Loans made by it, in either case, prior to the date of such
resignation. Such resignation shall take effect upon the appointment of a successor Administrative
Agent pursuant to clauses (b) and (c) below or as otherwise provided below.




          (b) Upon any such notice of resignation by the Administrative Agent, the Required Lenders
shall appoint a successor Administrative Agent hereunder or thereunder who shall be a commercial
bank or trust company reasonably acceptable to the Borrower, which acceptance shall not be
unreasonably withheld or delayed (provided that the Borrower’s approval shall not be
required if an Event of Default then exists).




          (c) If a successor Administrative Agent shall not have been so appointed within such 15
Business Day period, the Administrative Agent, with the consent of the Borrower

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(which consent
shall not be unreasonably withheld or delayed, provided that the Borrower’s consent shall
not be required if an Event of Default then exists), shall then appoint a successor Administrative
Agent who shall serve as Administrative Agent hereunder or thereunder until such time, if any, as
the Required Lenders appoint a successor Administrative Agent as provided above.




          (d) If no successor Administrative Agent has been appointed pursuant to clause (b) or (c)
above by the 20th Business Day after the date such notice of resignation was given by the
Administrative Agent, the Administrative Agent’s resignation shall become effective and the
Required Lenders shall thereafter perform all the duties of the Administrative Agent hereunder
and/or under any other Credit Document until such time, if any, as the Required Lenders appoint a
successor Administrative Agent as provided above.




          (e) Upon a resignation of the Administrative Agent pursuant to this Section 12.09, the
Administrative Agent shall remain indemnified to the extent provided in this Agreement and the
other Credit Documents and the provisions of this Section 12 shall continue in effect for
the benefit of the Administrative Agent for all of its actions and inactions while serving as the
Administrative Agent.




          SECTION 13. Miscellaneous.




          13.01 Payment of Expenses, etc. The Borrower hereby agrees to: (i) whether or not the
transactions herein contemplated are consummated, pay all reasonable out-of-pocket costs and
expenses of the Administrative Agent (including, without limitation, the reasonable fees and
disbursements of White & Case LLP and
the Administrative Agent’s other counsel and consultants) in connection with the preparation,
execution and delivery of this Agreement and the other Credit Documents and the documents and
instruments referred to herein and therein and any amendment, waiver or consent relating hereto or
thereto, of the Administrative Agent in connection with its syndication efforts and administration
functions with respect to this Agreement and of the Administrative Agent and, after the occurrence
of an Event of Default, each of the Issuing Lenders and Lenders in connection with the enforcement
of this Agreement and the other Credit Documents and the documents and instruments referred to
herein and therein or in connection with any refinancing or restructuring of the credit
arrangements provided under this Agreement in the nature of a “work-out” or pursuant to any
insolvency or bankruptcy proceedings (including, in each case without limitation, the reasonable
fees and disbursements of counsel and consultants for the Administrative Agent and, after the
occurrence of an Event of Default, counsel for each of the Issuing Lenders and Lenders); (ii) pay
and hold the Administrative Agent, each of the Issuing Lenders and each of the Lenders harmless
from and against any and all present and future stamp, excise and other similar documentary taxes
with respect to the foregoing matters and save the Administrative Agent, each of the Issuing
Lenders and each of the Lenders harmless from and against any and all liabilities with respect to
or resulting from any delay or omission (other than to the extent attributable to the
Administrative Agent, such Issuing Lender or such Lender) to pay such taxes; and (iii) indemnify
the Administrative Agent, each Issuing Lender and each Lender, and each of their respective
officers, directors, employees, representatives, agents, affiliates, trustees and investment
advisors from and hold each of them harmless against any and all liabilities, obligations
(including removal or remedial actions), losses, damages, penalties, claims, actions,

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judgments,
suits, costs, expenses and disbursements (including reasonable attorneys’ and consultants’ fees and
disbursements) incurred by, imposed on or assessed against any of them as a result of, or arising
out of, or in any way related to, or by reason of, (a) any investigation, litigation or other
proceeding (whether or not the Administrative Agent, any Issuing Lender or any Lender is a party
thereto and whether or not such investigation, litigation or other proceeding is brought by or on
behalf of any Credit Party) related to the entering into and/or performance of this Agreement or
any other Credit Document or the use of any Letter of Credit or the proceeds of any Loans hereunder
or the consummation of the Transaction or any other transactions contemplated herein or in any
other Credit Document or the exercise of any of their rights or remedies provided herein or in the
other Credit Documents, or (b) the actual or alleged presence of Hazardous Materials in the air,
surface water or groundwater or on the surface or subsurface of any Real Property at any time
owned, leased or operated by Holdings or any of its Subsidiaries, the generation, storage,
transportation, handling or disposal of Hazardous Materials by Holdings or any of its Subsidiaries
at any location, whether or not owned, leased or operated by Holdings or any of its Subsidiaries,
the non-compliance by Holdings or any of its Subsidiaries with any Environmental Law (including
applicable permits thereunder) applicable to any Real Property, or any Environmental Claim asserted
against Holdings, any of its Subsidiaries or any Real Property at any time owned, leased or
operated by Holdings or any of its Subsidiaries, including, in each case, without limitation, the
reasonable fees and disbursements of counsel and other consultants incurred in connection with any
such investigation, litigation or other proceeding (but excluding any losses, liabilities, claims,
damages or expenses to the extent incurred by reason of the gross negligence or willful misconduct
of the Person to be indemnified (as determined by a court of competent jurisdiction in a final and
non-appealable decision)). To the extent that the undertaking to indemnify, pay or
hold harmless the Administrative Agent, any Issuing Lender or any Lender set forth in the preceding
sentence may be unenforceable because it is violative of any law or public policy, the Borrower
shall make the maximum contribution to the payment and satisfaction of each of the indemnified
liabilities which is permissible under applicable law.




          13.02 Right of Setoff. In addition to any rights now or hereafter granted under applicable
law or otherwise, and not by way of limitation of any such rights, upon the occurrence and during
the continuance of an Event of Default, the Administrative Agent, each Issuing Lender and each
Lender is hereby authorized at any time or from time to time, without presentment, demand, protest
or other notice of any kind to any Credit Party or to any other Person, any such notice being
hereby expressly waived, to set off and to appropriate and apply any and all deposits (general or
special) and any other Indebtedness at any time held or owing by the Administrative Agent, such
Issuing Lender or such Lender (including, without limitation, by branches and agencies of the
Administrative Agent, such Issuing Lender or such Lender wherever located) to or for the credit or
the account of the Borrower or any of its Subsidiaries against and on account of the Obligations
and liabilities of the Credit Parties to the Administrative Agent, such Issuing Lender or such
Lender under this Agreement or under any of the other Credit Documents, including, without
limitation, all interests in Obligations purchased by such Lender pursuant to Section
13.06(b), and all other claims of any nature or description arising out of or connected with
this Agreement or any other Credit Document, irrespective of whether or not the Administrative
Agent, such Issuing Lender or such Lender shall have made any demand hereunder and although said
Obligations, liabilities or claims, or any of them, shall be contingent or unmatured.





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          13.03 Notices. Except as otherwise expressly provided herein, all notices and other
communications provided for hereunder shall be in writing (including telegraphic, telex, telecopier
or cable communication) and mailed, telegraphed, telexed, telecopied, cabled or delivered: if to
any Credit Party, at the address specified opposite its signature below or in the other relevant
Credit Documents; if to any Lender, at its address specified on Schedule II; and if to the
Administrative Agent, at the Notice Office; or, as to any Credit Party or the Administrative Agent,
at such other address as shall be designated by such party in a written notice to the other parties
hereto and, as to each Lender, at such other address as shall be designated by such Lender in a
written notice to the Borrower and the Administrative Agent. All such notices and communications
shall, when mailed, telegraphed, telexed, telecopied, or cabled or sent by overnight courier, be
effective when deposited in the mails, delivered to the telegraph company, cable company or
overnight courier, as the case may be, or sent by telex or telecopier, except that notices and
communications to (x) each Lender in the case of Sections 1.01(d), 1.03(a) and
2.04(c) and (y) the Administrative Agent and the Borrower (in either case) shall not be
effective until received by such Lender, the Administrative Agent or the Borrower, as the case may
be.




          13.04 Benefit of Agreement; Assignments; Participations. (a) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided, however, neither Holdings nor
the Borrower may assign or transfer any of its rights, obligations or interest hereunder or under
the other Credit Documents without the prior written consent of the Lenders and, provided further,
that, although any Lender may transfer, assign or grant participations in its rights hereunder,
such Lender shall remain a “Lender” for all purposes hereunder (and may not transfer or
assign all or any portion of its Commitments and outstanding Loans hereunder except as provided in
Sections 1.13 and 13.04(b)) and the transferee, assignee or participant, as the
case may be, shall not constitute a “Lender” hereunder and, provided further, that no
Lender shall transfer or grant any participation under which the participant shall have rights to
approve any amendment to or waiver of this Agreement or any other Credit Document except to the
extent such amendment or waiver would (i) extend the final scheduled maturity of any Loan, Note or
Letter of Credit (unless such Letter of Credit is not extended beyond the Revolving Loan Maturity
Date) in which such participant is participating, or reduce the rate or extend the time of payment
of interest or Fees thereon (except in connection with a waiver of applicability of any
post-default increase in interest rates) or reduce the principal amount thereof (it being
understood that any amendment or modification to the financial definitions in this Agreement or to
Section 13.07(a) shall not constitute a reduction in the rate of interest or Fees payable
hereunder), or increase the amount of the participant’s participation over the amount thereof then
in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory
reduction in the Total Commitment shall not constitute a change in the terms of such participation,
and that an increase in any Commitment (or the available portion thereof) or Revolving Loan shall
be permitted without the consent of any participant if the participant’s participation is not
increased as a result thereof), (ii) consent to the assignment or transfer by Holdings or the
Borrower of any of its rights and obligations under this Agreement, (iii) release all or
substantially all of the Collateral under all of the Security Documents (except as expressly
provided in the Credit Documents) supporting the Loans or Letters of Credit hereunder in which such
participant is participating or (iv) release all or substantially all of the Subsidiary Guarantors
under the Subsidiaries Guaranty (except as expressly provided in the Credit Documents) supporting
the Loans or Letters of Credit hereunder in which such participant is participating. In the case
of any such participation, the participant




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shall not have any rights under this Agreement or any of
the other Credit Documents (the participant’s rights against such Lender in respect of such
participation to be those set forth in the agreement executed by such Lender in favor of the
participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined
as if such Lender had not sold such participation.




          (b) Notwithstanding the foregoing, any Lender (or any Lender together with one or more other
Lenders) may (x) assign all or a portion of its Commitments and related outstanding Obligations
(or, if the Commitments with respect to the relevant Tranche have terminated, outstanding
Obligations) hereunder to (i)(A) its parent company and/or any affiliate of such Lender which is at
least 50% owned by such Lender or its parent company or (B) to one or more other Lenders or any
affiliate of any such other Lender which is at least 50% owned by such other Lender or its parent
company (provided that any fund that invests in loans and is managed or advised by the same
investment advisor of another fund which is a Lender (or by an Affiliate of such investment
advisor) shall be treated as an affiliate of such other Lender for the purposes of this sub-clause
(x)(i)(B)), or (ii) in the case of any Lender that is a fund that invests in loans, any other fund
that invests in loans and is managed or advised by the same investment advisor of any Lender or by
an Affiliate of such investment advisor or (y) assign all, or if less than all, a portion equal to
at least $1,000,000 in the aggregate for the assigning Lender or
assigning Lenders, of such Commitments and related outstanding Obligations (or, if the
Commitments with respect to the relevant Tranche have terminated, outstanding Obligations)
hereunder to one or more Eligible Transferees (treating any fund that invests in loans and any
other fund that invests in loans and is managed or advised by the same investment advisor of such
fund or by an Affiliate of such investment advisor as a single Eligible Transferee), each of which
assignees shall become a party to this Agreement as a Lender by execution of an Assignment and
Assumption Agreement, provided that (i) at such time, Schedule I shall be deemed
modified to reflect the Commitments and/or outstanding Loans, as the case may be, of such new
Lender and of the existing Lenders, (ii) upon the surrender of the relevant Notes by the assigning
Lender (or, upon such assigning Lender’s indemnifying the Borrower for any lost Note pursuant to a
customary indemnification agreement) new Notes will be issued, at the Borrower’s expense, to such
new Lender and to the assigning Lender upon the request of such new Lender or assigning Lender,
such new Notes to be in conformity with the requirements of Section 1.05 (with appropriate
modifications) to the extent needed to reflect the revised Commitments and/or outstanding Loans, as
the case may be, (iii) the consent of the Administrative Agent and, so long as no Default or Event
of Default then exists, the consent of the Borrower in each case shall be required in connection
with any such assignment pursuant to clause (y) above (each of which consents shall not be
unreasonably withheld or delayed), (iv) the Administrative Agent shall receive at the time of each
such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment
fee of $3,500 and (v) no such transfer or assignment will be effective until recorded by the
Administrative Agent on the Register pursuant to Section 13.15. To the extent of any
assignment pursuant to this Section 13.04(b), the assigning Lender shall be relieved of its
obligations hereunder with respect to its assigned Commitments and outstanding Loans. At the time
of each assignment pursuant to this Section 13.04(b) to a Person which is not already a
Lender hereunder and which is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Lender shall, to
the extent legally entitled to do so, provide to the Borrower the appropriate Internal Revenue
Service Forms (and, if
applicable, a Section 4.04(b)(ii) Certificate) described in




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Section
4.04(b). To the extent that an assignment of all or any portion of a Lender’s Commitments and
related outstanding Obligations pursuant to Section 1.13 or this Section
13.04(b) would, at the time of such assignment, result in increased costs under Section
1.10, 2.06 or 4.04 from those being charged by the respective assigning Lender
prior to such assignment, then the Borrower shall not be obligated to pay such increased costs
(although the Borrower, in accordance with and pursuant to the other provisions of this Agreement,
shall be obligated to pay any other increased costs of the type described above resulting from
changes after the date of the respective assignment).




          (c) Nothing in this Agreement shall prevent or prohibit any Lender from pledging its Loans and
Notes hereunder to a Federal Reserve Bank in support of borrowings made by such Lender from such
Federal Reserve Bank and, with prior notification to the Administrative Agent (but without the
consent of the Administrative Agent or the Borrower), any Lender which is a fund may pledge all or
any portion of its Loans and Notes to its trustee or to a collateral agent providing credit or
credit support to such Lender in support of its obligations to such trustee, such collateral agent
or a holder of such obligations, as the case may be. No pledge pursuant to this clause (c) shall
release the transferor Lender from any of its obligations hereunder.




          13.05 No Waiver; Remedies Cumulative. No failure or delay on the part of the
Administrative Agent, the Collateral Agent, any Issuing Lender or any Lender in exercising any
right, power or privilege hereunder or under any other Credit Document and no course of dealing
between the Borrower or any other Credit Party and the Administrative Agent, the Collateral Agent,
any Issuing Lender or any Lender shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or under any other Credit Document preclude any
other or further exercise thereof or the exercise of any other right, power or privilege hereunder
or thereunder. The rights, powers and remedies herein or in any other Credit Document expressly
provided are cumulative and not exclusive of any rights, powers or remedies which the
Administrative Agent, the Collateral Agent, any Issuing Lender or any Lender would otherwise have.
No notice to or demand on any Credit Party in any case shall entitle any Credit Party to any other
or further notice or demand in similar or other circumstances or constitute a waiver of the rights
of the Administrative Agent, the Collateral Agent, any Issuing Lender or any Lender to any other or
further action in any circumstances without notice or demand.




          13.06 Payments Pro Rata. (a) Except as otherwise provided in this Agreement, the
Administrative Agent agrees that promptly after its receipt of each payment from or on behalf of
the Borrower in respect of any Obligations hereunder, the Administrative Agent shall distribute
such payment to the Lenders entitled thereto (other than any Lender that has consented in writing
to waive its pro rata share of any such payment) pro rata based
upon their respective shares, if any, of the Obligations with respect to which such payment was
received.




          (b) Each of the Lenders agrees that, if it should receive any amount hereunder (whether by
voluntary payment, by realization upon security, by the exercise of the right of setoff or banker’s
lien, by counterclaim or cross action, by the enforcement of any right under the Credit Documents,
or otherwise), which is applicable to the payment of the principal of, or interest on, the Loans,
Unpaid Drawings, Commitment Commission or Letter of Credit Fees, of a





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sum which with respect to the
related sum or sums received by other Lenders is in a greater proportion than the total of such
Obligation then owed and due to such Lender bears to the total of such Obligation then owed and due
to all of the Lenders immediately prior to such receipt, then such Lender receiving such excess
payment shall purchase for cash without recourse or warranty from the other Lenders an interest in
the Obligations of the respective Credit Party to such Lenders in such amount as shall result in a
proportional participation by all the Lenders in such amount; provided that if all or any
portion of such excess amount is thereafter recovered from such Lenders, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but without interest.




          (c) Notwithstanding anything to the contrary contained herein, the provisions of the preceding
Sections 13.06(a) and (b) shall be subject to the express provisions of this
Agreement which require, or permit, differing payments to be made to Non-Defaulting Lenders as
opposed to Defaulting Lenders.




          13.07 Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and
prepared in accordance with generally accepted accounting principles in the United States
consistently applied throughout the periods involved (except as set forth in the notes thereto or
as otherwise disclosed in writing by Holdings to the Lenders); provided that, (i) except as
otherwise specifically provided herein, all computations and all definitions (including accounting
terms) used in determining the Applicable Commitment Fee Percentage, the Applicable Margins and the
Incremental Term Loan Commitment Requirements and compliance with Sections 8.16,
9.04(xii) and 9.07 shall utilize generally accepted accounting principles and
policies in conformity with those used to prepare the December 31, 2005 year-end historical
financial statements of Holdings and its Subsidiaries referred to in Section 7.05(a), (ii)
to the extent expressly provided herein, certain calculations shall be made on a Pro
Forma Basis, and (iii) for the period from the Initial Borrowing Date through and including
the earlier of the Existing Senior Notes Redemption Date, all computations and all definitions
(including accounting terms) used in determining the Applicable Commitment Fee Percentage, the
Applicable Margins and the Incremental Term Loan Commitment Requirements and compliance with
Sections 8.16, 9.04(xii) and 9.07, shall be calculated as if the Existing
Senior Notes were not outstanding and as if there was no interest expense associated therewith.




          (b) All computations of interest, Commitment Commission and other Fees hereunder shall be made
on the basis of a year of 360 days for the actual number of days (including the first day but
excluding the last day; except that in the case of Letter of Credit Fees and Facing Fees, the last
day shall be included) occurring in the period for which such interest, Commitment Commission or
Fees are payable.




          13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL. (a) THIS
AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
AND THEREUNDER SHALL, EXCEPT AS OTHERWISE PROVIDED IN CERTAIN OF THE SECURITY DOCUMENTS, BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL ACTION
OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT

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DOCUMENT MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN
EACH CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT, EACH OF HOLDINGS AND THE BORROWER HEREBY IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION
OF THE AFORESAID COURTS. EACH OF HOLDINGS AND THE BORROWER HEREBY FURTHER IRREVOCABLY WAIVES ANY
CLAIM THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER HOLDINGS OR THE BORROWER, AND AGREES NOT
TO PLEAD OR CLAIM, IN ANY LEGAL ACTION PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT BROUGHT IN ANY OF THE AFOREMENTIONED COURTS, THAT SUCH COURTS LACK PERSONAL
JURISDICTION OVER HOLDINGS OR THE BORROWER. EACH OF HOLDINGS AND THE BORROWER FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO HOLDINGS OR THE BORROWER AT ITS
ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH
MAILING. EACH OF HOLDINGS AND THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE
OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR
PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT THAT SERVICE OF PROCESS WAS IN
ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT,
ANY LENDER OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST HOLDINGS OR THE BORROWER IN ANY OTHER
JURISDICTION.




          (b) EACH OF HOLDINGS AND THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED
TO IN CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN
ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.




          (c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.





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          13.09 Counterparts. This Agreement may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which when so executed and delivered
shall be an original, but all of which shall together constitute one and the same instrument. A
set of counterparts executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.




          13.10 Effectiveness. This Agreement shall become effective on the date (the “Effective
Date”) on which Holdings, the Borrower, the Administrative Agent and each of the Lenders shall
have signed a counterpart hereof (whether the same or different counterparts) and shall have
delivered the same to the Administrative Agent at the Notice Office or, in the case of the Lenders,
shall have given to the Administrative Agent telephonic (confirmed in writing), written or telex
notice (actually received) at such office that the same has been signed and mailed to it. The
Administrative
Agent will give Holdings, the Borrower and each Lender prompt written notice of the occurrence of
the Effective Date.




          13.11 Headings Descriptive. The headings of the several sections and subsections of this
Agreement are inserted for convenience only and shall not in any way affect the meaning or
construction of any provision of this Agreement.




          13.12 Amendment or Waiver; etc. (a) Neither this Agreement nor any other Credit Document
nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such
change, waiver, discharge or termination is in writing signed by (A) in the case of (x) any
amendment, modification or waiver of Section 9.07 or any of the financial definitions used
in determining compliance with Section 9.07 or (y) any waiver of any Revolver Event of
Default, the Majority Lenders holding outstanding Revolving Obligations (or Revolving Loan
Commitments in respect thereof) and (B) in the case of any other change, waiver, discharge or
termination of any other term or provision of this Agreement or any other Credit Document, the
respective Credit Parties party hereto or thereto and the Required Lenders (although additional
parties may be added to (and annexes may be modified to reflect such additions), and Subsidiaries
of the Borrower may be released from, the Subsidiaries Guaranty and the Security Documents in
accordance with the provisions hereof and thereof without the consent of the other Credit Parties
party thereto or the Required Lenders), provided that no such change, waiver, discharge or
termination shall, without the consent of each Lender (other than a Defaulting Lender) (with
Obligations being directly affected in the case of following clauses (i) and (vi)), (i) extend the
final scheduled maturity of any Loan or Note or extend the stated expiration date of any Letter of
Credit beyond the Revolving Loan Maturity Date, or reduce the rate or extend the time of payment of
interest or Fees thereon (except in connection with the waiver of applicability of any post-default
increase in interest rates), or reduce the principal amount thereof (it being understood that any
amendment or modification to the financial definitions in this Agreement or to Section
13.07(a) shall not constitute a reduction in the rate of interest or Fees for the purposes of
this clause (i)), (ii) release all or substantially all of the Collateral (except as expressly
provided in the Credit Documents) under all the Security Documents, (iii) release all or
substantially all of the Subsidiary Guarantors (except as expressly provided in the Credit
Documents) from the Subsidiaries Guaranty, (iv) amend, modify or waive any provision of this
Section 13.12(a) (except for technical amendments with respect to additional extensions of
credit pursuant to this Agreement which afford the protections to such additional extensions of
credit of the type provided to the Term Loans and the Revolving Loan Commitments on the Effective

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Date), (v) reduce the percentage specified in the definition of Required Lenders (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 extensions of Term Loans and Revolving Loan Commitments are included on the
Effective Date), (vi) amend, modify or waive Section 13.06(a) in a manner that would alter the pro
rata sharing of payments required thereby, or (vii) consent to the assignment or transfer by
Holdings or the Borrower of any of its rights and obligations under
this Agreement; provided
further, that no such change, waiver, discharge or termination shall (1) increase the Commitments
of any Lender over the amount thereof then in effect without the consent of such Lender (it being
understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of
Default or of a mandatory reduction in the Total Commitment shall not constitute an increase of the
Commitment of any Lender, and that an increase in the available portion of any Commitment of any
Lender shall not constitute an increase of the Commitment of such Lender), (2) except in cases
where additional extensions of term loans and/or revolving loans are being afforded substantially
the same treatment afforded to the Term Loans and Revolving Loans pursuant to this Agreement as
originally in effect, (x) without the consent of the Majority Lenders of each Tranche which is
being allocated a lesser prepayment, repayment or commitment reduction as a result of the actions
described below in this sub-clause (x), alter the required application of any prepayments or
repayments (or commitment reduction), as between the various Tranches, pursuant to Section
4.01(a) or 4.02 (excluding Section 4.02(b)) (although the Required Lenders may
waive, in whole or in part, any such prepayment, repayment or commitment reduction, so long as the
application, as amongst the various Tranches, of any such prepayment, repayment or commitment
reduction which is still required to be made is not altered) or (y) without the consent of the
Majority Lenders of each Tranche which is adversely affected by such amendment, amend the
definition of Majority Lenders (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 Majority Lenders on substantially the same basis as the extensions of Term Loans and Revolving
Loan Commitments are included on the Effective Date), (3) without the consent of each Issuing
Lender, amend, modify or waive any provision of Section 2 or alter its rights or
obligations with respect to Letters of Credit, (4) without the consent of the Swingline Lender,
alter the Swingline Lender’s rights or obligations with respect to Swingline Loans, (5) without the
consent of the Administrative Agent, amend, modify or waive any provision of Section 12 or
any other provision as same relates to the rights or obligations of the Administrative Agent, (6)
without the consent of the Collateral Agent, amend, modify or waive any provision relating to the
rights or obligations of the Collateral Agent, or (7) without the consent of the Majority Lenders
under the affected Tranche of Term Loans, reduce the amount of, or extend the date of, any
Scheduled Term Loan Repayment in respect of such Tranche of Term Loans.




          (b) If, in connection with any proposed change, waiver, discharge or termination of any of the
provisions of this Agreement as contemplated by clauses (B) (i) through (vii), inclusive, of the
first proviso to Section 13.12(a), the consent of the Required Lenders is obtained but the
consent of one or more of such other Lenders whose consent is required is not obtained, then the
Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is
required are treated as described in either clauses (A) or (B) below, to either (A) replace each
such non-consenting Lender or Lenders (or, at the option of the Borrower, if the respective
Lender’s consent is required with respect to less than all Tranches of




 -119- 









 







Loans (or related
Commitments), to replace only the Revolving Loan Commitments and/or Loans of the respective
non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with
one or more Replacement Lenders pursuant to Section 1.13 so long as at the time of such
replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or
termination or (B) terminate such non-consenting Lender’s Revolving Loan Commitment (if such
Lender’s consent is required as a result of its Revolving Loan Commitment) and/or repay each
Tranche of outstanding Loans of such Lender which gave rise to the need to obtain such Lender’s
consent and/or cash collateralize its applicable RL
Percentage of the Letter of Credit of Outstandings in accordance with Sections 3.02(b)
and/or 4.01(b), provided that, unless the Commitments which are terminated and
Loans which are repaid pursuant to preceding clause (B) are immediately replaced in full at such
time through the addition of new Lenders or the increase of the Commitments and/or outstanding
Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of
any action pursuant to preceding clause (B), the Required Lenders (determined after giving effect
to the proposed action) shall specifically consent thereto,
provided further, that in any event the
Borrower shall not have the right to replace a Lender, terminate its Commitment or repay its Loans
solely as a result of the exercise of such Lender’s rights (and the withholding of any required
consent by such Lender) pursuant to the further proviso to Section 13.12(a).




          13.13 Survival. All indemnities set forth herein including, without limitation, in
Sections 1.10, 1.11, 2.06, 4.04, 12.06 and 13.01
shall survive the execution, delivery and termination of this Agreement and the Notes and the
making and repayment of the Obligations.




          13.14 Domicile of Loans. Each Lender may transfer and carry its Loans at, to or for the
account of any office, Subsidiary or Affiliate of such Lender. Notwithstanding anything to the
contrary contained herein, to the extent that a transfer of Loans pursuant to this Section
13.14 would, at the time of such transfer, result in increased costs under Section
1.10, 1.11, 2.06 or 4.04 from those being charged by the respective
Lender prior to such transfer, then the Borrower shall not be obligated to pay such increased costs
(although the Borrower shall be obligated to pay any other increased costs of the type described
above resulting from changes after the date of the respective transfer).




          13.15 Register. The Borrower hereby designates the Administrative Agent to serve as its
agent, solely for purposes of this Section 13.15, to maintain a register (the
“Register”) on which it will record the Commitments from time to time of each of the
Lenders, the Loans made by each of the Lenders and each repayment in respect of the principal
amount of the Loans of each Lender. Failure to make any such recordation, or any error in such
recordation, shall not affect the Borrower’s obligations in respect of such Loans. With respect to
any Lender, the transfer of the Commitments of such Lender and the rights to the principal of, and
interest on, any Loan made pursuant to such Commitments shall not be effective until such transfer
is recorded on the Register maintained by the Administrative Agent with respect to ownership of
such Commitments and Loans and prior to such recordation all amounts owing to the transferor with
respect to such Commitments and Loans shall remain owing to the transferor. The registration of
assignment or transfer of all or part of any Commitments and Loans shall be recorded by the
Administrative Agent on the Register only upon the acceptance by the Administrative Agent of a
properly executed and delivered Assignment and Assumption Agreement pursuant to Section
13.04(b). Coincident with the delivery of such an Assignment




 -120- 









 







and Assumption Agreement to the
Administrative Agent for acceptance and registration of assignment or transfer of all or part of a
Loan, or as soon thereafter as practicable, the assigning or transferor Lender shall surrender the
Note (if any) evidencing such Loan, and thereupon one or more new Notes in the same aggregate
principal amount shall be issued to the assigning or transferor Lender and/or the new Lender at the
request of any such Lender. The Borrower agrees to indemnify the Administrative Agent from and
against any and all losses, claims, damages and liabilities of whatsoever nature which may be
imposed on, asserted against or incurred by the Administrative Agent in performing its duties under
this Section 13.15, provided that the Borrower will not be liable for any portion
of such losses, claims, damages or liabilities to the extent resulting from the Administrative
Agent’s gross negligence or willful misconduct (as determined by a court of competent jurisdiction
in a final and non-appealable decision).




          13.16 Confidentiality. (a) Subject to the provisions of clause (b) of this Section
13.16, each Lender agrees that it will not disclose without the prior consent of Holdings and
the Borrower (other than to its employees, auditors, advisors or counsel or to another Lender if
such Lender or such Lender’s holding or parent company in its sole discretion determines that any
such party should have access to such information, provided such Persons shall be subject to the
provisions of this Section 13.16 to the same extent as such Lender) any information with
respect to Holdings or any of its Subsidiaries which is now or in the future furnished pursuant to
this Agreement or any other Credit Document, provided that any Lender may disclose any such
information (i) as has become generally available to the public other than by virtue of a breach of
this Section 13.16(a) by the respective Lender, (ii) as may be required or appropriate in
any report, statement or testimony submitted to any municipal, state or Federal regulatory body
having or claiming to have jurisdiction over such Lender or to the Federal Reserve Board or the
Federal Deposit Insurance Corporation or similar organizations (whether in the United States or
elsewhere) or their successors, (iii) as may be required or appropriate in respect to any summons
or subpoena or in connection with any litigation, (iv) in order to comply with any law, order,
regulation or ruling applicable to such Lender, (v) to the Administrative Agent or the Collateral
Agent, (vi) to any direct or indirect contractual counterparty in any swap, hedge or similar
agreement (or to any such contractual counterparty’s professional advisor), so long as such
contractual counterparty (or such professional advisor) agrees to be bound by the provisions of
this Section 13.16, and (vii) to any prospective or actual transferee or participant in
connection with any contemplated transfer or participation of any of the Notes or Commitments or
any interest therein by such Lender otherwise permitted by this Agreement, provided that
such prospective transferee agrees to be bound by the confidentiality provisions contained in this
Section 13.16.




          (b) Each of Holdings and the Borrower hereby acknowledges and agrees that each Lender may
share with any of its affiliates, and such affiliates may share with such Lender, any information
related to Holdings or any of its Subsidiaries (including, without limitation, any non-public
customer information regarding the creditworthiness of Holdings and its Subsidiaries), provided
such Persons shall be subject to the provisions of this Section 13.16 to the same extent as
such Lender.




*  *  *




 -121- 









 





          IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute
and deliver this Agreement as of the date first above written.




	 	 	 	 	 	 	 
	Address

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	888 Seventh Avenue
	 	 	 	 	 	 
	25th Floor	 	TOWN SPORTS INTERNATIONAL HOLDINGS, INC.	 	 
	New York, New York 10106
	 	 	 	 	 	 
	Attention: Richard Pyle
	 	 	 	 	 	 
	Tel. No.: (212) 246-6700
	 	 	 	 	 	 
	Fax No.: (212) 664-8906

	 	By:
	 	/s/ Richard Pyle	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Richard Pyle	 	 
	 

	 	 	 	Title:   Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	888 Seventh Avenue	 	TOWN SPORTS INTERNATIONAL, LLC	 	 
	25th Floor
	 	 	 	 	 	 
	New York, New York 10106
	 	 	 	 	 	 
	Attention: Richard Pyle
	 	 	 	 	 	 
	Tel. No.: (212) 246-6700
	 	 	 	 	 	 
	Fax No.: (212) 664-8906

	 	By:
	 	/s/ Richard Pyle	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Richard Pyle	 	 
	 

	 	 	 	Title:   Chief Financial Officer	 	 






 









 





	 	 	 	 	 
	 	DEUTSCHE BANK TRUST COMPANY 

AMERICAS, Individually and as 

Administrative Agent

 	 
	 	By:  	/s/ Carin Keegan
 	 
	 	 	Name:  	Carin Keegan 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                                          /s/ Mary Kay Coyle
 	 
	 	 	Name:  	Mary Kay Coyle 	 
	 	 	Title:  	Managing Director 	 
	 




 









 






SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN
ABOVE, AMONG TOWN SPORTS INTERNATIONAL HOLDINGS, INC., TOWN SPORTS
INTERNATIONAL, LLC, THE LENDERS PARTY HERETO FROM TIME TO TIME, AND DEUTSCHE
BANK TRUST COMPANY AMERICAS, AS ADMINISTRATIVE AGENT



	 	 	 	 	 
	 	NAME OF INSTITUTION:



SOVEREIGN BANK

 	 
	 	By:  	/s/ Christine Gerula
 	 
	 	 	Name:  	Christine Gerula 	 
	 	 	Title:  	Senior Vice President 	 
	 




 









 






SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN
ABOVE, AMONG TOWN SPORTS INTERNATIONAL HOLDINGS, INC., TOWN SPORTS
INTERNATIONAL, LLC, THE LENDERS PARTY HERETO FROM TIME TO TIME, AND DEUTSCHE
BANK TRUST COMPANY AMERICAS, AS ADMINISTRATIVE AGENT



	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION:

 	 
	 	By:  	/s/ Brendan A. Lawlor
 	 
	 	 	Name:  	Brendan A. Lawlor 	 
	 	 	Title:  	Senior Vice President 	 
	 




 









 






SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN
ABOVE, AMONG TOWN SPORTS INTERNATIONAL HOLDINGS, INC., TOWN SPORTS
INTERNATIONAL, LLC, THE LENDERS PARTY HERETO FROM TIME TO TIME, AND DEUTSCHE
BANK TRUST COMPANY AMERICAS, AS ADMINISTRATIVE AGENT



	 	 	 	 	 
	 	NAME OF INSTITUTION:





CITIBANK, N.A.

 	 
	 	By:  	/s/ Steve T. Zuvich
 	 
	 	 	Name:  	Steve T. Zuvich 	 
	 	 	 	 
	 




 









 






SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN
ABOVE, AMONG TOWN SPORTS INTERNATIONAL HOLDINGS, INC., TOWN SPORTS
INTERNATIONAL, LLC, THE LENDERS PARTY HERETO FROM TIME TO TIME, AND DEUTSCHE
BANK TRUST COMPANY AMERICAS, AS ADMINISTRATIVE AGENT



	 	 	 	 	 
	 	NAME OF INSTITUTION:



CREDIT SUISSE, CAYMAN ISLANDS BRANCH

 	 
	 	By:  	/s/ Sarah Wu
 	 
	 	 	Name:  	Sarah Wu 	 
	 	 	Title:  	Director 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	/s/ Laurence Lapeyre
 	 
	 	 	Name:  	Laurence Lapeyre 	 
	 	 	Title:  	Associate 	 
	 




 









 






SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN
ABOVE, AMONG TOWN SPORTS INTERNATIONAL HOLDINGS, INC., TOWN SPORTS
INTERNATIONAL, LLC, THE LENDERS PARTY HERETO FROM TIME TO TIME, AND DEUTSCHE
BANK TRUST COMPANY AMERICAS, AS ADMINISTRATIVE AGENT



	 	 	 	 	 
	 	NAME OF INSTITUTION:



WACHOVIA BANK, N.A.

 	 
	 	By:  	/s/ Tyrone J. Williams
 	 
	 	 	Name:  	Tyrone J. Williams 	 
	 	 	Title:  	Senior Vice President 	 
	 




 









 






SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN
ABOVE, AMONG TOWN SPORTS INTERNATIONAL HOLDINGS, INC., TOWN SPORTS
INTERNATIONAL, LLC, THE LENDERS PARTY HERETO FROM TIME TO TIME, AND DEUTSCHE
BANK TRUST COMPANY AMERICAS, AS ADMINISTRATIVE AGENT



	 	 	 	 	 
	 	NAME OF INSTITUTION:



THE CIT GROUP



EQUIPMENT FINANCE INC.

 	 
	 	By:  	/s/ Vincent Devito
 	 
	 	 	Name:  	Vincent Devito 	 
	 	 	Title:  	Managing Director 	 
	 




 









 






SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN
ABOVE, AMONG TOWN SPORTS INTERNATIONAL HOLDINGS, INC., TOWN SPORTS
INTERNATIONAL, LLC, THE LENDERS PARTY HERETO FROM TIME TO TIME, AND DEUTSCHE
BANK TRUST COMPANY AMERICAS, AS ADMINISTRATIVE AGENT



	 	 	 	 	 
	 	NAME OF INSTITUTION:



BANK OF AMERICA, NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Jana L. Baker
 	 
	 	 	Name:  	Jana L. Baker 	 
	 	 	Title:  	Vice President