Exhibit 10.6


 


EXECUTION COPY


 


AMENDED AND RESTATED CREDIT
AGREEMENT


 


Dated as of March 22,
2007


 


(amending and restating the
Credit Agreement

dated as of August 19, 2002, as amended)


 


among


 


BIRDS EYE FOODS, INC.

as Borrower,


 


BIRDS EYE HOLDINGS, INC.,

as Parent


 


and


 


THE SUBSIDIARIES OF THE
BORROWER

FROM TIME TO TIME PARTY HERETO,

as Guarantors,


 


THE LENDERS

FROM TIME TO TIME PARTY HERETO,


 


BANK OF AMERICA, N.A. and
UBS SECURITIES LLC,

as Co-Syndication Agents,


 


COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK NEDERLAND”, NEW YORK BRANCH and
M&T BANK CORPORATION,

as Co-Documentation Agents


 


and


 


JPMORGAN CHASE BANK, N.A.

as Administrative Agent


 


 


J.P. MORGAN SECURITIES INC.,


as Sole Lead Arranger and
Sole Bookrunner


 

















 


Table of Contents


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  SECTION I
  DEFINITIONS

  	
  2

  
	
  1.1.   
  DEFINITIONS

  	
  2

  
	
  1.2.   
  COMPUTATION OF TIME PERIODS

  	
  37

  
	
  1.3.   
  ACCOUNTING TERMS

  	
  37

  
	
   

  	
   

  
	
  SECTION II
  CREDIT FACILITIES

  	
  39

  
	
  2.1.   
  REVOLVING LOANS

  	
  39

  
	
  2.2.   
  LETTER OF CREDIT SUBFACILITY

  	
  41

  
	
  2.3.   
  SWINGLINE LOAN SUBFACILITY

  	
  46

  
	
  2.4.   
  [INTENTIONALLY DELETED]

  	
  48

  
	
  2.5.   
  TRANCHE B TERM LOAN

  	
  48

  
	
  2.6.   
  INCREMENTAL TERM LOANS; REVOLVING COMMITMENT INCREASE

  	
  50

  
	
  2.7.   
  REDESIGNATION OF EXISTING LOANS AND COMMITMENTS

  	
  52

  
	
   

  	
   

  
	
  SECTION III
  OTHER PROVISIONS RELATING TO CREDIT FACILITIES

  	
  53

  
	
  3.1.   
  DEFAULT RATE

  	
  53

  
	
  3.2.   
  EXTENSION AND CONVERSION

  	
  53

  
	
  3.3.   
  PREPAYMENTS

  	
  54

  
	
  3.4.   
  TERMINATION AND REDUCTION OF REVOLVING COMMITTED AMOUNT

  	
  56

  
	
  3.5.   
  FEES

  	
  57

  
	
  3.6.   
  CAPITAL ADEQUACY

  	
  58

  
	
  3.7.   
  LIMITATION ON EURODOLLAR LOANS

  	
  58

  
	
  3.8.   
  ILLEGALITY

  	
  59

  
	
  3.9.   
  REQUIREMENTS OF LAW

  	
  59

  
	
  3.10.   
  TREATMENT OF AFFECTED LOANS

  	
  60

  
	
  3.11.   
  TAXES

  	
  61

  
	
  3.12.   
  COMPENSATION

  	
  63

  
	
  3.13.   
  PRO RATA TREATMENT

  	
  64

  
	
  3.14.   
  SHARING OF PAYMENTS

  	
  65

  
	
  3.15.   
  PAYMENTS, COMPUTATIONS, ETC.

  	
  65

  
	
  3.16.   
  EVIDENCE OF DEBT

  	
  66

  
	
  3.17.   
  REPLACEMENT OF AFFECTED LENDERS

  	
  67

  
	
   

  	
   

  
	
  SECTION IV
  GUARANTY

  	
  68

  
	
  4.1.   
  THE GUARANTY

  	
  68

  
	
  4.2.   
  OBLIGATIONS UNCONDITIONAL

  	
  68

  
	
  4.3.   
  REINSTATEMENT

  	
  69

  
	
  4.4.   
  CERTAIN ADDITIONAL WAIVERS

  	
  70

  
	
  4.5.   
  REMEDIES

  	
  70

  
	
  4.6.   
  RIGHTS OF CONTRIBUTION

  	
  70

  
	
  4.7.   
  GUARANTEE OF PAYMENT; CONTINUING GUARANTEE

  	
  71

  



 


i

















 


	
  SECTION V
  CONDITIONS

  	
  71

  
	
  5.1.   
  CLOSING CONDITIONS; AMENDMENT AND RESTATEMENT

  	
  71

  
	
  5.2.   
  CONDITIONS TO ALL EXTENSIONS OF CREDIT

  	
  74

  
	
   

  	
   

  
	
  SECTION VI
  REPRESENTATIONS AND WARRANTIES

  	
  75

  
	
  6.1.   
  FINANCIAL CONDITION

  	
  75

  
	
  6.2.   
  NO MATERIAL CHANGE

  	
  76

  
	
  6.3.   
  ORGANIZATION AND GOOD STANDING

  	
  76

  
	
  6.4.   
  POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS

  	
  76

  
	
  6.5.   
  NO CONFLICTS

  	
  77

  
	
  6.6.   
  NO DEFAULT

  	
  77

  
	
  6.7.   
  OWNERSHIP

  	
  77

  
	
  6.8.   
  INDEBTEDNESS

  	
  77

  
	
  6.9.   
  LITIGATION

  	
  77

  
	
  6.10.   
  TAXES

  	
  78

  
	
  6.11.   
  COMPLIANCE WITH LAW

  	
  78

  
	
  6.12.   
  ERISA

  	
  78

  
	
  6.13.   
  CORPORATE STRUCTURE; CAPITAL STOCK, ETC.

  	
  79

  
	
  6.14.   
  GOVERNMENTAL REGULATIONS, ETC.

  	
  80

  
	
  6.15.   
  PURPOSE OF LOANS AND LETTERS OF CREDIT

  	
  80

  
	
  6.16.   
  ENVIRONMENTAL MATTERS

  	
  80

  
	
  6.17.   
  INTELLECTUAL PROPERTY

  	
  81

  
	
  6.18.   
  SOLVENCY

  	
  82

  
	
  6.19.   
  INVESTMENTS

  	
  82

  
	
  6.20.   
  BUSINESS LOCATIONS

  	
  82

  
	
  6.21.   
  DISCLOSURE

  	
  82

  
	
  6.22.   
  BROKERS’ FEES

  	
  82

  
	
  6.23.   
  LABOR MATTERS

  	
  82

  
	
  6.24.   
  NATURE OF BUSINESS

  	
  82

  
	
  6.25.   
  SENIORITY

  	
  83

  
	
   

  	
   

  
	
  SECTION VII
  AFFIRMATIVE COVENANTS

  	
  83

  
	
  7.1.   
  INFORMATION COVENANTS

  	
  83

  
	
  7.2.   
  PRESERVATION OF EXISTENCE AND FRANCHISES

  	
  86

  
	
  7.3.   
  BOOKS AND RECORDS

  	
  86

  
	
  7.4.   
  COMPLIANCE WITH LAW

  	
  87

  
	
  7.5.   
  PAYMENT OF TAXES AND OTHER CLAIMS

  	
  87

  
	
  7.6.   
  INSURANCE

  	
  87

  
	
  7.7.   
  MAINTENANCE OF PROPERTY

  	
  88

  
	
  7.8.   
  USE OF PROCEEDS

  	
  88

  
	
  7.9.   
  AUDITS/INSPECTIONS

  	
  88

  
	
  7.10.   
  FINANCIAL COVENANT

  	
  89

  
	
  7.11.   
  ADDITIONAL GUARANTORS

  	
  89

  
	
  7.12.   
  PLEDGED ASSETS

  	
  89

  
	
  7.13.   
  FURTHER ASSURANCES

  	
  90

  



 


ii

















 


	
  SECTION VIII
  NEGATIVE COVENANTS

  	
  90

  
	
  8.1.   
  INDEBTEDNESS

  	
  91

  
	
  8.2.   
  LIENS

  	
  92

  
	
  8.3.   
  NATURE OF BUSINESS

  	
  95

  
	
  8.4.   
  CONSOLIDATION, MERGER, DISSOLUTION, ETC.

  	
  95

  
	
  8.5.   
  ASSET DISPOSITIONS

  	
  96

  
	
  8.6.   
  INVESTMENTS

  	
  97

  
	
  8.7.   
  RESTRICTED PAYMENTS

  	
  99

  
	
  8.8.   
  OTHER INDEBTEDNESS

  	
  100

  
	
  8.9.   
  TRANSACTIONS WITH AFFILIATES

  	
  100

  
	
  8.10.   
  FISCAL YEAR; ORGANIZATIONAL DOCUMENTS AND OTHERS

  	
  101

  
	
  8.11.   
  LIMITATION ON RESTRICTED ACTIONS

  	
  101

  
	
  8.12.   
  OWNERSHIP OF SUBSIDIARIES

  	
  102

  
	
  8.13.   
  SALE LEASEBACKS

  	
  102

  
	
  8.14.   
  NO FURTHER NEGATIVE PLEDGES

  	
  102

  
	
  8.15.    CAPITAL EXPENDITURES

  	
  103

  
	
  8.16.   
  HOLDING COMPANY STATUS OF PARENT

  	
  103

  
	
   

  	
   

  
	
  SECTION IX
  EVENTS OF DEFAULT

  	
  103

  
	
  9.1.   
  EVENTS OF DEFAULT

  	
  103

  
	
  9.2.   
  ACCELERATION; REMEDIES

  	
  106

  
	
  9.3.   
  RIGHT TO CURE

  	
  106

  
	
   

  	
   

  
	
  SECTION X
  AGENCY PROVISIONS

  	
  107

  
	
  10.1.   
  APPOINTMENT, POWERS AND IMMUNITIES

  	
  107

  
	
  10.2.   
  RELIANCE BY ADMINISTRATIVE AGENT

  	
  108

  
	
  10.3.   
  DEFAULTS

  	
  108

  
	
  10.4.   
  RIGHTS AS A LENDER

  	
  109

  
	
  10.5.   
  INDEMNIFICATION

  	
  109

  
	
  10.6.   
  NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS

  	
  110

  
	
  10.7.   
  SUCCESSOR ADMINISTRATIVE AGENT

  	
  110

  
	
  10.8.   
  CO-SYNDICATION AGENTS

  	
  110

  
	
  10.9.   
  CO-DOCUMENTATION AGENTS

  	
  111

  
	
   

  	
   

  
	
  SECTION XI
  MISCELLANEOUS

  	
  111

  
	
  11.1.   
  NOTICES

  	
  111

  
	
  11.2.   
  RIGHT OF SET-OFF; ADJUSTMENTS

  	
  113

  
	
  11.3.   
  BENEFIT OF AGREEMENT

  	
  113

  
	
  11.4.   
  NO WAIVER; REMEDIES CUMULATIVE

  	
  116

  
	
  11.5.   
  EXPENSES; INDEMNIFICATION

  	
  117

  
	
  11.6.   
  AMENDMENTS, WAIVERS AND CONSENTS

  	
  118

  
	
  11.7.   
  COUNTERPARTS

  	
  120

  
	
  11.8.   
  HEADINGS

  	
  121

  
	
  11.9.   
  SURVIVAL

  	
  121

  
	
  11.10.   
  GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE

  	
  121

  
	
  11.11.   
  SEVERABILITY

  	
  122

  



 


iii

















 


	
  11.12.   
  ENTIRETY

  	
  122

  
	
  11.13.   
  BINDING EFFECT; TERMINATION

  	
  122

  
	
  11.14.   
  CONFIDENTIALITY

  	
  122

  
	
  11.15.   
  SOURCE OF FUNDS

  	
  123

  
	
  11.16.   
  REGULATION D

  	
  124

  
	
  11.17.   
  CONFLICT

  	
  124

  
	
  11.18.   
  USA PATRIOT ACT

  	
  124

  
	
  11.19.   
  NO NOVATION; AMENDMENT AND RESTATEMENT

  	
  124

  



 


SCHEDULES


 


	
  Schedule
  1.1B

  	
  Existing Letters
  of Credit

  
	
  Schedule
  2.1(a)

  	
  Lenders

  
	
  Schedule 6.4

  	
  Required
  Consents, Authorizations, Notices and Filings

  
	
  Schedule 6.9

  	
  Litigation

  
	
  Schedule
  6.12

  	
  ERISA

  
	
  Schedule
  6.13A

  	
  Corporate
  Structure

  
	
  Schedule
  6.13B

  	
  Subsidiaries

  
	
  Schedule
  6.16

  	
  Environmental
  Disclosures

  
	
  Schedule
  6.17

  	
  Intellectual
  Property

  
	
  Schedule
  6.20(a)

  	
  Mortgaged
  Properties

  
	
  Schedule
  6.20(c)

  	
  Chief
  Executive Offices/Jurisdiction of Incorporation/Principal Places of Business

  
	
  Schedule
  6.22

  	
  Broker’s
  Fees

  
	
  Schedule
  6.23

  	
  Labor
  Matters

  
	
  Schedule 7.6

  	
  Insurance

  
	
  Schedule 8.1

  	
  Indebtedness

  
	
  Schedule 8.2

  	
  Liens

  
	
  Schedule 8.6

  	
  Investments

  
	
  Schedule 8.9

  	
  Affiliate
  Transactions

  
	
   

  
	
  EXHIBITS

  
	
   

  
	
  Exhibit 1.1

  	
  Form of
  Collateral Agreement

  
	
  Exhibit 2.1(b)(i)

  	
  Form of
  Notice of Borrowing

  
	
  Exhibit 2.1(e)

  	
  Form of
  Revolving Note

  
	
  Exhibit 2.3(d)

  	
  Form of
  Swingline Note

  
	
  Exhibit 2.5(f)

  	
  Form of
  Tranche B Term Note

  
	
  Exhibit 3.2

  	
  Form of
  Notice of Extension/Conversion

  
	
  Exhibit 7.1(c)

  	
  Form of
  Officer’s Compliance Certificate

  
	
  Exhibit 7.11

  	
  Form of
  Joinder Agreement

  
	
  Exhibit 11.3(b)

  	
  Form of
  Assignment and Acceptance

  



 


iv














 


CREDIT AGREEMENT


 


THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as
of March 22, 2007 (as amended, modified, restated or supplemented from
time to time, the “CREDIT AGREEMENT”), is by and among BIRDS EYE FOODS, INC., a
Delaware corporation (the “BORROWER”), BIRDS EYE HOLDINGS, INC., a Delaware
corporation (the “PARENT”), the Subsidiary Guarantors (as defined herein), the
Lenders (as defined herein), BANK OF AMERICA, N.A and UBS SECURITIES LLC, as
Co-Syndication Agents for the Lenders (in such capacity, the “CO-SYNDICATION
AGENTS”), COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK
NEDERLAND”, NEW YORK BRANCH and M&T BANK CORPORATION, as Co-Documentation
Agents for the Lenders (in such capacity, the “CO-DOCUMENTATION AGENTS”), and
JPMORGAN CHASE BANK, N.A. as Administrative Agent for the Lenders (in such
capacity, the “ADMINISTRATIVE AGENT” and, together with the Co-Syndication
Agents and the Co-Documentation Agents, the “AGENTS”).


 


W I T N E S S E T H


 


1.             The
Borrower, Parent, the lenders and the agents parties thereto and the
Administrative Agent are parties to the Credit Agreement, dated as of August 19,
2002 (as amended, supplemented or otherwise modified prior to the date hereof,
the “Existing Credit Agreement”).


 


2.             The
Borrower and the Parent intend to enter into a recapitalization transaction
(the “RECAPITALIZATION”) pursuant to which (i) the Borrower will refinance
(the “REFINANCING”) the Existing Credit Agreement and (ii) the Parent will
pay a dividend (the “CLOSING DATE DIVIDEND”) to Birds Eye Holdings LLC, a
Delaware limited liability company (“HOLDINGS LLC”), funded indirectly from the
proceeds of the Tranche B Term Loans (as defined herein), in the amount of
$284,183,957 in order to finance the redemption (“PREFERRED SECURITIES REDEMPTION”)
by Holdings LLC of all of its preferred securities.


 


3.             In
order to finance the Recapitalization and to pay related fees and expenses and
to provide for the on-going operations of the Borrower and its Subsidiaries
after the Closing Date, the Borrower has requested that the Lenders, the
Co-Documentation Agents, the Co-Syndication Agents and the Administrative Agent
enter into this Credit Agreement in order to make available to the Borrower the
$575,000,000 credit facilities described herein (the “CREDIT FACILITIES”) on
the terms and conditions hereinafter set forth, consisting of (i) a
$125,000,000 revolving credit facility and (ii) a $450,000,000 Tranche B
term loan facility.


 


4.             The
Borrower and the Parent desire to amend and restate the Existing Credit
Agreement pursuant to this Credit Agreement. 
All indebtedness, obligations and liabilities, as amended and restated
hereby, and all Liens existing under the Existing Credit Agreement and other
Credit Documents (as defined in the Existing Credit Agreement) will continue in
full force and effect, uninterrupted and unimpaired, as amended as set forth
herein and in the Credit Documents delivered or otherwise continued in
connection herewith.


 

















 


NOW, THEREFORE, IN CONSIDERATION of the premises and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree to amend and restate the Existing
Credit Agreement as follows:


 


SECTION I


 


DEFINITIONS


 


1.1.    DEFINITIONS.


 


As used in this Credit Agreement, the following
terms shall have the meanings specified below unless the context otherwise
requires:


 


“ACQUIRED NON-CORE ASSET
DISPOSITION” means an Asset Disposition of Property acquired after the Closing
Date in a Permitted Acquisition, provided that (i) such Asset Disposition
is consummated within 540 days following the date of the related Permitted
Acquisition and (ii) the aggregate fair market value of the Property
subject to such Asset Disposition (or series of related Asset Dispositions) is
less than 10% of the aggregate cash purchase price of such Permitted
Acquisition; provided, however, that the term “Acquired Non-Core
Asset Disposition” shall not include any Asset Disposition which is an “Asset
Sale” (or any comparable term) under, and as defined in, any Junior Financing
Documentation.


 


“ACQUISITION”, by any
Person, means the acquisition by such Person of at least a majority of the
Capital Stock or all or substantially all of the Property or a line of business
or division of another Person, whether or not such acquisition involves a
merger or consolidation by the acquiring Person with or into the acquired
Person.


 


“ADDITIONAL LENDER” has the
meaning assigned to such term in Section 2.6.


 


“ADJUSTED BASE RATE” means,
with respect to Revolving Loans, Tranche B Term Loans and Swingline Loans which
are Base Rate Loans, the Base Rate plus the Applicable Percentage.


 


“ADJUSTED EURODOLLAR RATE”
means, with respect to Revolving Loans and Tranche B Term Loans which are
Eurodollar Loans, the Eurodollar Rate plus the Applicable Percentage.


 


“ADMINISTRATIVE AGENT” shall
have the meaning assigned to such term in the heading hereof, together with any
successors or assigns.


 


“ADMINISTRATIVE AGENT’S FEE
LETTER” means that certain fee letter agreement, dated March 5, 2007,
among JPMorgan Chase Bank, J.P. Morgan Securities Inc. and the Borrower, as
amended, modified, restated or supplemented from time to time.


 


2

















 


“AFFILIATE” means, with
respect to any Person, any other Person (i) directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person or (ii) directly or indirectly owning or holding ten percent
(10%) or more of the Capital Stock in such Person. For purposes of this
definition, “control” when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms “controlling” and “controlled” have meanings correlative to the
foregoing.


 


“AGENCY MANAGEMENT ADDRESS”
means JPMorgan Chase Bank Loan Services Agency Closing Unit, 10 South Dearborn,
19th Floor, Chicago, IL 60603, Attn: Lillian
Arroyo, or such other address as may be identified by written notice from the
Administrative Agent to the Borrower.


 


“AGENTS” has the meaning set
forth in the preamble to this Credit Agreement.


 


“APPLICABLE LENDING OFFICE”
means, for each Lender, the office of such Lender (or of an Affiliate of such
Lender) as such Lender may from time to time specify to the Administrative
Agent and the Borrower by written notice as the office by which its Eurodollar
Loans are made and maintained.


 


“APPLICABLE PERCENTAGE”
means, for purposes of calculating the applicable interest rate for any day for
(i) any Tranche B Term Loan (a) 1.75% per annum (to increase to 2.00%
per annum in the event that the Consolidated Net Leverage Ratio in effect as of
such date is greater than 5.00 to 1.00) in the case of Eurodollar Loans and (b) 1.25%
per annum in the case of the Base Rate Loans and (ii) any Revolving Loan
or Swingline Loan, the applicable rate of the Unused Fee for any day for
purposes of Section 3.5(a) or the applicable rate of the Standby
Letter of Credit Fee for any day for purposes of Section 3.5(b)(i), the
appropriate applicable percentage corresponding to the Consolidated Net
Leverage Ratio in effect as of the most recent Calculation Date:


 


	
  APPLICABLE PERCENTAGES FOR REVOLVING
  LOANS AND SWINGLINE LOANS

  	
   

  
	
  Pricing 

  Level

  	
   

  	
  Consolidated Net 

  Leverage Ratio

  	
   

  	
  Eurodollar
  

  Loans

  	
   

  	
  Base Rate 

  Loans

  	
   

  	
  Standby
  Letter 

  of Credit Fee

  	
   

  	
  Unused Fee

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  I

  	
   

  	
  > 3.50 to 1.00

  	
   

  	
  2.25

  	
  %

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  	
  0.50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  II

  	
   

  	
  < 3.50 to 1.00 

  < 3.00 to 1.00

  	
   

  	
  2.00

  	
  %

  	
  1.00

  	
  %

  	
  2.00

  	
  %

  	
  0.50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  III

  	
   

  	
  < 3.00 to 1.00

  	
   

  	
  1.75

  	
  %

  	
  0.75

  	
  %

  	
  1.75

  	
  %

  	
  0.375

  	
  %

  



 


The Applicable Percentages
shall be determined and adjusted quarterly on the date (each a “CALCULATION
DATE”) five Business Days after the date by which the Credit Parties are required
to provide the officer’s certificate in accordance with the provisions of Section 7.1(c) for
the most recently ended fiscal quarter of the Consolidated Parties or, in the
case of the fourth fiscal quarter of any fiscal year, five Business Days 


 


3

















 


after such earlier date as
the Credit Parties shall have delivered to the Administrative Agent financial
statements for such fiscal quarter meeting the requirements of Section 7.1(b) together
with a related officer’s certificate meeting the requirements of Section 7.1(c),
provided, however, that (i) the initial Applicable
Percentages shall be based on Pricing Level I and shall remain at Pricing Level
I until the Calculation Date for the fiscal quarter of the Consolidated Parties
ending on March 31, 2007, on and after which time the Pricing Level shall
be determined by the Consolidated Net Leverage Ratio as of the last day of the
most recently ended fiscal quarter of the Consolidated Parties preceding the
applicable Calculation Date and (ii) if the Credit Parties fail to provide
the officer’s certificate to the Agency Management Address as required by Section 7.1(c) for
the last day of the most recently ended fiscal quarter of the Consolidated
Parties preceding the applicable Calculation Date, the Applicable Percentage
from such Calculation Date shall be based on Pricing Level I until such time as
an appropriate officer’s certificate is provided, whereupon the Pricing Level
shall be determined by the Consolidated Net Leverage Ratio as of the last day
of the most recently ended fiscal quarter of the Consolidated Parties preceding
such Calculation Date. Each Applicable Percentage shall be effective from one
Calculation Date until the next Calculation Date. Any adjustment in the
Applicable Percentages shall be applicable to all existing Loans and Letters of
Credit as well as any new Loans and Letters of Credit made or issued.


 


“APPLICATION PERIOD” means
in respect of the Net Cash Proceeds of any Asset Disposition, the period of 365
days (or such earlier date as provided for reinvestment of such proceeds under
any Junior Financing Documentation) following the consummation of such Asset
Disposition.


 


“APPROVED FUND” means (a) with
respect to any Lender, a CLO managed or administered by such Lender or by an
Affiliate of such Lender and (b) with respect to any Lender that is a fund
which as its primary business invests in bank loans and similar extensions of
credit, any other fund that as its primary business invests in bank loans and
similar extensions of credit and is managed by the same investment advisor as
such Lender or by an Affiliate of such investment advisor.


 


“ASSET DISPOSITION” means
any disposition (including pursuant to a Sale and Leaseback Transaction) by a Consolidated
Party of any or all of the Property (including without limitation the Capital
Stock of a Subsidiary) of any Consolidated Party whether by sale, lease,
licensing, transfer or otherwise, other than pursuant to any Involuntary
Disposition; provided, however, that the term “Asset Disposition”
(i) shall not be deemed to include any Equity Issuance and (ii) shall
be deemed to include any “Asset Sale” (or any comparable term) under, and as
defined in, any Junior Financing Documentation.


 


“ASSET DISPOSITION
PREPAYMENT EVENT” means, with respect to any Asset Disposition other than an
Excluded Asset Disposition, the failure of the Credit Parties to apply (or
cause to be applied) the Net Cash Proceeds of such Asset Disposition to
Eligible Reinvestments during the Application Period for such Asset
Disposition.


 


“ASSIGNMENT AND ACCEPTANCE”
shall have the meaning assigned to such term in Section 11.3(b).


 


4

















 


“AVERAGE SENIOR SECURED DEBT”
means, as of any date of determination, Average Total Debt which is secured minus
all Funded Indebtedness that is subordinated in right of payment to the Credit
Party Obligations.


 


“AVERAGE TOTAL DEBT” means,
as of any date of determination (i) the sum of (a) the
aggregate outstanding principal amount of all Funded Indebtedness (other than
the Revolving Loans) outstanding on such day and (b) the quotient
of the sum of the aggregate outstanding principal amount of all
Revolving Loans outstanding on the last day of each of the 12 fiscal months
ending on or immediately prior to such day divided by 12 minus (ii) the quotient
of the sum of the aggregate cash and cash equivalents  (which are free of any Liens other than Liens
in favor of the Secured Parties and customary set off rights or bankers’ liens
of depository institutions) outstanding on the last day of each of the 12
fiscal months ending on or immediately prior to such day divided by 12.


 


“BANKRUPTCY CODE” means the
Bankruptcy Code in Title 11 of the United States Code, as amended, modified,
succeeded or replaced from time to time.


 


“BANKRUPTCY EVENT” means,
with respect to any Person, the occurrence of any of the following: (i) the
entry of a decree or order for relief by a court or governmental agency having
jurisdiction over such Person in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or the
appointment by a court or governmental agency of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of such Person
or for any substantial part of its Property or the ordering of the winding up
or liquidation of its affairs by a court or governmental agency; or (ii) the
commencement against such Person of an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or of
any case, proceeding or other action for the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of
such Person or for any substantial part of its Property or for the winding up
or liquidation of its affairs, and such involuntary case or other case,
proceeding or other action shall remain undismissed for a period of sixty (60)
consecutive days; or (iii) such Person shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment of or the
taking possession by a receiver, liquidator, assignee, secured creditor,
custodian, trustee, sequestrator (or similar official) of such Person or for
any substantial part of its Property or make any general assignment for the
benefit of creditors; or (iv) such Person shall be unable to, or shall
admit in writing its inability to, pay its debts generally as they become due.


 


“BASE RATE” means, for any
day, the rate per annum equal to the higher of (a) the Federal Funds Rate
for such day plus one-half of one percent (0.5%) and (b) the Prime Rate
for such day. Any change in the Base Rate due to a change in the Prime Rate or
the Federal Funds Rate shall be effective on the effective date of such change
in the Prime Rate or Federal Funds Rate.


 


5

















 


“BASE RATE LOAN” means any
Loan bearing interest at a rate determined by reference to the Base Rate.


 


“BORROWER” means the Person
identified as such in the heading hereof, together with any permitted
successors and assigns.


 


“BUSINESS DAY” means a day
other than a Saturday, Sunday or other day on which commercial banks in New
York, New York are authorized or required by law to close, EXCEPT THAT, when
used in connection with a Eurodollar Loan, such day shall also be a day on
which dealings between banks are carried on in Dollar deposits in London,
England.


 


“BUSINESSES” means, at any
time, a collective reference to the businesses operated by the Consolidated
Parties at such time.


 


“CALCULATION DATE” shall
have the meaning assigned to such term in the definition of “Applicable
Percentage” set forth in this Section 1.1.


 


“CAPEX ROLLOVER” shall have
the meaning assigned to such term in Section 8.15.


 


“CAPITAL LEASE” means, as
applied to any Person, any lease of any Property (whether real, personal or
mixed) by that Person as lessee which, in accordance with GAAP, is required to
be accounted for as a capital lease on the balance sheet of that Person.


 


“CAPITAL STOCK” means (i) in
the case of a corporation, capital stock, (ii) in the case of an
association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of capital stock, (iii) in
the case of a partnership, partnership interests (whether general or limited)
and (iv) in the case of a limited liability company, membership interests.


 


“CASH EQUIVALENTS” means, as
at any date, (1) with respect to any Consolidated Party, (a) 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 twelve (12) months from the date of acquisition, (b) Dollar
denominated time deposits and certificates of deposit of (i) any Lender, (ii) any
domestic commercial bank of recognized standing having capital and surplus in
excess of $500,000,000 or (iii) any bank whose short-term commercial paper
rating from S&P is at least A-1 or the equivalent thereof or from Moody’s
is at least P-1 or the equivalent thereof (any such bank being an “APPROVED
DOMESTIC BANK”), in each case with maturities of not more than twelve (12)
months from the date of acquisition, (c) commercial paper and variable or
fixed rate notes issued by any Approved Domestic Bank (or by the parent company
thereof) or any variable rate notes issued by, or guaranteed by, any domestic
corporation rated A-1 (or the equivalent thereof) or better by S&P or P-1
(or the equivalent thereof) or better by Moody’s and maturing within twelve
(12) months of the date of acquisition, (d) repurchase agreements entered
into by any Person with a bank or 


 


6

















 


trust company (including any
of the Lenders) or recognized securities dealer having capital and surplus in
excess of $500,000,000 for direct obligations issued by or fully guaranteed by
the United States in which such Person shall have a perfected first priority
security interest (subject to no other Liens) and having, on the date of
purchase thereof, a fair market value of at least 100% of the amount of the
repurchase obligations and (e) Investments, classified in accordance with
GAAP as current assets, in money market investment programs registered under
the Investment Company Act of 1940, as amended, which are administered by
reputable financial institutions having capital of at least $500,000,000 and
the portfolios of which are limited such that 95% of such Investments are of
the character described in the foregoing subdivisions (a) through (d) and
(2) solely with respect to any Foreign Subsidiary, non-Dollar denominated (a) certificates
of deposit of, bankers acceptances of, or time deposits with, any commercial
bank which is organized and existing under the laws of the country in which
such Foreign Subsidiary maintains its chief executive office and principal
place of business provided such country is a member of the Organization for
Economic Cooperation and Development, and whose short-term commercial paper
rating from S&P is at least A-1 or the equivalent thereof or from Moody’s
is at least P-1 or the equivalent thereof (any such bank being an “APPROVED
FOREIGN BANK”) and maturing within twelve (12) months of the date of
acquisition and (b) equivalents of demand deposit accounts which are
maintained with an Approved Foreign Bank.


 


“CHANGE OF CONTROL” means
any of the following events: (a) prior to a Qualifying IPO, (1) the
failure of the Parent to own directly all of the Capital Stock of the Borrower
(other than Qualified Preferred Stock issued by the Borrower) or (2) the
failure of the Sponsor (A) to own beneficially, directly or indirectly, at
least 51% of the outstanding common Capital Stock (on a fully diluted basis) of
the Parent held by the Sponsor as of the Closing Date and (B) to have the
right, directly or indirectly, by beneficial ownership, contract or otherwise,
to elect at least a majority in number of the members of the Parent’s Board of
Directors or (3) less than a majority in number of the sitting members of
the Parent’s Board of Directors shall have been elected by the Sponsor, (b) after
a Qualifying IPO, (1) if the IPO Issuer is not the Borrower, the failure
of the Parent to own directly all of the Capital Stock of the Borrower, (2)  a
person or any group, and any affiliate of any such person other than the
Sponsor shall beneficially own, directly or indirectly, an amount of Capital
Stock of the IPO Issuer with voting power greater than (i) the voting
power of the amount of Capital Stock owned by the Sponsor or (ii) 35% of
the total voting power of all Capital Stock of the IPO Issuer or (3) during
any period of up to 24 consecutive months, commencing after the Closing Date,
individuals who at the beginning of such 24 month period were directors of the
Parent (or, after a Qualifying IPO, the IPO Issuer) (together with any new
director whose election by the Parent’s (or the IPO Issuer’s, as applicable)
Board of Directors or whose nomination for election by the Parent’s (or the IPO
Issuer’s, as applicable) shareholders was approved by the Sponsor or a vote of
at least a majority of the directors then still in office who either were
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the directors of the Parent (or the IPO Issuer, as applicable) then
in office or (c) if any Subordinated Debt or Qualified Preferred Stock
shall have been issued, the occurrence of a “Change of Control” (or any
comparable term) under, and as defined in, any Junior 


 


7

















 


Financing
Documentation.  As used herein, “beneficial
ownership” shall have the meaning provided in Rule 13d-3 of the Securities
and Exchange Commission under the Securities Exchange Act.


 


“CLO” means any entity
(whether a corporation, partnership, trust or otherwise) that is engaged
primarily in making, purchasing, holding or otherwise investing in bank loans
and similar extensions of credit in the ordinary course of its business and is
administered or managed by a Lender or an Affiliate of such Lender.


 


“CLOSING DATE” means the
date hereof.


 


“CLOSING DATE DIVIDEND” has
the meaning set forth in the recitals to this Credit Agreement.


 


“CODE” means the Internal
Revenue Code of 1986, as amended, and any successor statute thereto, as
interpreted by the rules and regulations issued thereunder, in each case
as in effect from time to time. References to sections of the Code shall be
construed also to refer to any successor sections.


 


“CO-DOCUMENTATION AGENTS”
shall have the meaning assigned to such term in the heading hereof, together
with any successors or assigns.


 


“COLLATERAL” means a
collective reference to all real and personal Property (other than Excluded
Property) with respect to which Liens in favor of the Administrative Agent are
purported to be granted pursuant to and in accordance with the terms of the
Collateral Documents.


 


“COLLATERAL AGREEMENT” means
the Collateral Agreement dated as of the Closing Date in the form of Exhibit 1.1
to be executed in favor of the Administrative Agent by each of the Credit
Parties, as amended, modified, restated or supplemented from time to time.


 


“COLLATERAL DOCUMENTS” means
a collective reference to the Collateral Agreement, the Mortgage Instruments
and any other agreement or instrument executed by any Consolidated Party from
time to time purporting to grant a Lien on any property described therein in
order to secure payment of all or any portion of the Credit Party Obligations.


 


“COLOMA LOGISTICS AGREEMENT”
means that certain Logistics Services Agreement dated as of April 1, 1998
by and between the Borrower and APL Logistics Warehouse Management Services, Inc.
(formerly d/b/a GATX Logistics, Inc.), as amended.


 


“COMMITMENT” means (i) with
respect to each Lender, the Revolving Commitment of such Lender and the Tranche
B Term Loan Commitment of such Lender, (ii) with respect to the Issuing
Lender, the LOC Commitment and (iii) with respect to the Swingline Lender,
the Swingline Commitment.


 


8














 


“CONSOLIDATED CAPITAL EXPENDITURES” means,
for the applicable period, all capital expenditures of the Consolidated Parties
on a consolidated basis for such period, as determined in accordance with GAAP;
provided, however, that Consolidated Capital Expenditures shall
not include any such expenditures which constitute (a) a Permitted
Acquisition, (b) capital expenditures relating to the construction or
acquisition of any Property which has been transferred to a Person that is not
a Consolidated Party pursuant to a Sale and Leaseback Transaction permitted
under Section 8.13 or (c) to the extent permitted by this Credit
Agreement, an Eligible Reinvestment of the Net Cash Proceeds of any Asset
Disposition (other than an Asset Disposition of the type described in clauses
(i), (viii) and (ix) of the definition of “Excluded Asset Disposition”),
Involuntary Disposition or Equity Issuance.


 


“CONSOLIDATED CASH INTEREST EXPENSE” means,
as of any date for the applicable period ending on such date with respect to
the Consolidated Parties on a consolidated basis, interest expense (including
the interest component under Capital Leases and the implied interest component
under Synthetic Leases, but excluding, to the extent included in interest
expense, (i) fees and expenses associated with the consummation of the
Transaction, (ii) annual agency fees described in the Administrative Agent’s
Fee Letter, (iii) costs associated with obtaining Hedging Agreements, (iv) letter
of credit fees, (v) the Pro-Fac Payment and (vi) fees and expenses
associated with any Permitted Investment, Equity Issuance or Debt Issuance
(whether or not consummated)), as determined in accordance with GAAP, to the
extent the same are payable in cash with respect to such period.


 


“CONSOLIDATED CASH TAXES” means, as of any
date for the applicable period ending on such date with respect to the
Consolidated Parties on a consolidated basis, the aggregate of all income,
franchise and similar taxes, as determined in accordance with GAAP, to the
extent the same are payable in cash with respect to such period.


 


“CONSOLIDATED EBITDA” means, as of any date
for the applicable period ending on such date with respect to the Consolidated
Parties on a consolidated basis, the sum of (i) Consolidated Net Income, plus
(ii) an amount which, in the determination of Consolidated Net Income for
such period, has been deducted for, without duplication, (A) total
interest expense, (B) income, franchise and similar taxes and any tax
distributions permitted to be made pursuant to Section 8.7(c), (C) depreciation
and amortization expense, including any non-cash goodwill impairment charges
and other intangibles, (D) letter of credit fees, (E) non-cash
expenses resulting from any employee benefit or management compensation plan or
the grant or ownership of equity and equity options to employees of the Parent,
the Borrower or any of their respective Subsidiaries pursuant to a written plan
or agreement or the treatment of such equity or options under variable plan
accounting, (F) all extraordinary charges, (G) non-cash amortization
of financing costs of the Parent and its Subsidiaries, (H) one-time cash
fees and expenses incurred in connection with the Transaction or, to the extent
permitted hereunder, any Permitted Investment, Equity Issuance or Debt Issuance
(whether or not consummated), (I) any losses realized upon the disposition
of Property outside of the ordinary course of business, (J) to the extent
actually reimbursed, expenses incurred to the extent covered by 


 


9

















 


indemnification provisions
in any agreement in connection with the Transaction and any Permitted
Acquisition (or in any similar agreement related to any other Acquisition
consummated prior to the Closing Date), (K) to the extent covered by
insurance, expenses with respect to liability or casualty events, business
interruption or product recalls, (L) management fees, (M) any
non-cash purchase accounting adjustments (and their related non-cash future
effect) and any step-ups or write-downs with respect to re-valuing assets and
liabilities in connection with the Transaction (as defined in the Existing
Credit Agreement) or any Permitted Investment, (N) other non-cash expenses
(excluding any non-cash expense to the extent that it represents an accrual of
or reserve for cash expenses in any future period), (O) non-cash losses
from Joint Ventures and non-cash minority interest reductions, (P) fees
and expenses in connection with the issuance, exchange or refinancing of any
Subordinated Notes, Senior Unsecured Debt, Incremental Term Loans, Revolving
Commitment Increases or the GLK Note as permitted hereunder, (Q) non-cash,
non-recurring charges, (R) other non-recurring cash charges during any
four consecutive fiscal quarter period in an aggregate amount not to exceed
$10,000,000, (S) expenses representing the implied principal component
under Synthetic Leases, (T) any expenses, charges or losses realized upon
the termination of the Coloma Logistics Agreement, not to exceed $15,000,000 in
the aggregate, (U) expenses, charges and losses associated with the
Discontinued Operations and the transition therefrom, not to exceed $18,000,000
in the aggregate, (V) the Pro-Fac Payment and (W) professional fees
associated with the sale of the non-branded frozen vegetable business and the
development of new strategy, minus (iii) an amount which, in the
determination of Consolidated Net Income, has been included for (A) all
extraordinary gains and non-cash income during such period and (B) any
gains realized upon the disposition of Property outside of the ordinary course
of business plus/minus (iv) unrealized losses/gains and any
mark-to-market adjustments in respect of Hedging Agreements. Notwithstanding
the foregoing, (i) Consolidated EBITDA for the fourth fiscal quarter of
the Borrower’s 2006 fiscal year shall be deemed to be $24,046,000, (ii) Consolidated
EBITDA for the first fiscal quarter of the Borrower’s 2007 fiscal year shall be
deemed to be $20,021,000 and (iii) Consolidated EBITDA for the second fiscal
quarter of the Borrower’s 2007 fiscal year shall be deemed to be $47,549,000.


 


“CONSOLIDATED NET INCOME” means, as of any
date for the applicable period ending on such date with respect to the
Consolidated Parties on a consolidated basis, net income (excluding, without
duplication, (i) extraordinary items and (ii) any amounts
attributable to Investments in any Joint Venture to the extent that such
amounts have not been distributed in cash to the Consolidated Parties during
the applicable period, as determined in accordance with GAAP).


 


“CONSOLIDATED NET LEVERAGE LEVEL” means,
during each of the periods set forth below, the following Consolidated Net
Leverage Ratios:


 




	
  Period

  	
   

  	
  Consolidated Net 

  Leverage Ratio

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Closing Date — 6/26/09

  	
   

  	
  5.50 to 1.00

  	
   

  
	
  6/27/09 — 6/25/10

  	
   

  	
  5.25 to 1.00

  	
   

  
	
  6/26/10—Maturity Date

  	
   

  	
  5.00 to 1.00

  	
   

  






 


10

















 




	
  Period

  	
   

  	
  Consolidated Net 

  Leverage Ratio

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  






 


“CONSOLIDATED NET LEVERAGE RATIO” means, as
of the end of any fiscal quarter of the Consolidated Parties for the four
fiscal quarter period ending on such date with respect to the Consolidated
Parties on a consolidated basis, the ratio of (a) Average Total Debt on
the last day of such period to (b) Consolidated EBITDA for such period.


 


“CONSOLIDATED NET SENIOR SECURED LEVERAGE
LEVEL” means, during each of the periods set forth below, the following
Consolidated Net Senior Secured Leverage Ratios:


 




	
  Period

  	
   

  	
  Consolidated Net Senior 

  Secured Leverage Ratio

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Closing Date — 6/26/09

  	
   

  	
  4.75 to 1.00

  	
   

  
	
  6/27/09 — 6/25/10

  	
   

  	
  4.50 to 1.00

  	
   

  
	
  6/26/10 — 6/24/11

  	
   

  	
  4.25 to 1.00

  	
   

  
	
  6/25/11 — Maturity Date

  	
   

  	
  4.00 to 1.00

  	
   

  






 


“CONSOLIDATED NET SENIOR SECURED LEVERAGE
RATIO” means, as of the end of any fiscal quarter of the Consolidated Parties
for the four fiscal quarter period ending on such date with respect to the
Consolidated Parties on a consolidated basis, the ratio of (a) Average
Senior Secured Debt on the last day of such period to (b) Consolidated
EBITDA for such period.


 


“CONSOLIDATED PARTIES” means a collective
reference to the Parent and its Subsidiaries, and “CONSOLIDATED PARTY” means
any one of them.


 


“CONSOLIDATED SCHEDULED FUNDED DEBT PAYMENTS”
means, as of any date for the applicable period ending on such date with
respect to the Consolidated Parties on a consolidated basis, the sum of all
scheduled payments of principal on Funded Indebtedness during such period
(including the implied principal component of payments due on Capital Leases
during such period and Synthetic Leases, less the reduction for all voluntary
prepayments or mandatory prepayments required pursuant to Section 3.3, in
each case as applied pursuant to Section 3.3), as determined in accordance
with GAAP.


 


“CONSOLIDATED TOTAL ASSETS”
means, as of any date with respect to the Consolidated Parties on a
consolidated basis, total assets, as determined in accordance with GAAP.


 


“CONTINUE”, “CONTINUATION” and “CONTINUED”
shall refer to the continuation pursuant to Section 3.2 hereof of a
Eurodollar Loan from one Interest Period to the next Interest Period.


 


11

















 


“CONTINUING TRANCHE B LENDER” means any
tranche B term lender under the Existing Credit Agreement which holds Tranche B
Term Loans under this Credit Agreement.


 


“CONTINUING TRANCHE B TERM LOANS” means any
tranche B term loan under the Existing Credit Agreement that is continued as a
Tranche B Term Loan under this Credit Agreement.


 


“CONVERT”, “CONVERSION” and “CONVERTED” shall
refer to a conversion pursuant to Section 3.2 or Sections 3.7 through
3.12, inclusive, of a Base Rate Loan into a Eurodollar Loan.


 


“CO-SYNDICATION AGENTS” shall have the
meaning assigned to such term in the heading hereof, together with any
successors or assigns.


 


“CREDIT AGREEMENT” shall have the meaning assigned
to such term in the heading hereof.


 


“CREDIT DOCUMENTS” means a collective
reference to this Credit Agreement, the Notes, the LOC Documents, each Joinder
Agreement, the Administrative Agent’s Fee Letter and the Collateral Documents
(in each case as the same may be amended, modified, restated, supplemented,
extended, renewed or replaced from time to time), and “CREDIT DOCUMENT” means
any one of them.


 


“CREDIT FACILITIES” shall have the meaning
assigned to such term in the recitals hereto.


 


“CREDIT PARTIES” means a collective reference
to the Borrower and the Guarantors, and “CREDIT PARTY” means any one of them.


 


“CREDIT PARTY OBLIGATIONS” means, without
duplication, (i) all of the obligations of the Credit Parties to the
Lenders (including the Issuing Lender) and the Administrative Agent, whenever
arising, under this Credit Agreement or any of the other Credit Documents
(including, but not limited to, any interest accruing after the occurrence of a
Bankruptcy Event with respect to any Credit Party, regardless of whether such
interest is an allowed claim under the Bankruptcy Code), (ii) all
liabilities and obligations, whenever arising, owing from any Credit Party to
any Lender, or any Affiliate of a Lender, arising under any Hedging Agreement (“HEDGING
OBLIGATIONS”), (iii) all liabilities and obligations, whenever arising,
owing from any Credit Party to any Lender, or any Affiliate of a Lender, in
respect of credit card, purchase card, cash advance or similar programs (“CREDIT
CARD OBLIGATIONS”) and (iv) any obligation of the Borrower or any of its
Subsidiaries in respect of (i) overdrafts and related liabilities owed to
any Lender (or any Affiliate of a Lender) that arise from treasury, depositary
or cash pooling or management services including in connection with any
automated clearing house transfers of funds or any similar transactions (“CASH
MANAGEMENT OBLIGATIONS”).


 


“CURE AMOUNT” has the meaning assigned to
such term in Section 9.3.


 


12

















 


“CURE NOTICE” has the meaning assigned to
such term in Section 9.3.


 


“CURE RIGHT” has the meaning assigned to such
term in Section 9.3.


 


“DEBT ISSUANCE” means the
issuance by any Consolidated Party of any Indebtedness for borrowed money.


 


“DEBT ISSUANCE PREPAYMENT EVENT” means the
receipt by any Consolidated Party of proceeds from any Debt Issuance other than
an Excluded Debt Issuance.


 


“DEFAULT” means any event, act or condition
which with notice or lapse of time, or both, would constitute an Event of
Default.


 


“DEFAULTING LENDER” means, at any time, any
Lender that (a) has failed to make a Loan or purchase a Participation
Interest required pursuant to the terms of this Credit Agreement within one
Business Day of when due, (b) other than as set forth in (a) above,
has failed to pay to the Administrative Agent or any Lender an amount owed by
such Lender pursuant to the terms of this Credit Agreement within one Business
Day of when due, unless such amount is subject to a good faith dispute or (c) has
been deemed insolvent or has become subject to a bankruptcy or insolvency
proceeding or with respect to which (or with respect to any of the assets of
which) a receiver, trustee or similar official has been appointed.


 


“DISCONTINUED OPERATIONS” means the
non-branded frozen vegetable business.


 


“DOLLARS” and “$” means dollars in lawful
currency of the United States.


 


“DOMESTIC SUBSIDIARY” means any direct or
indirect Subsidiary of the Borrower that was formed under the laws of the
United States or any state thereof or the District of Columbia.


 


“EBITDA DISPOSITION LIMIT” means the sum
of (i) $40,000,000 plus (ii) in the event that any
Consolidated Party makes an Acquisition after the Closing Date, an amount equal
to 40% of EBITDA (calculated on a basis consistent with Consolidated EBITDA)
attributable to the Person(s) and Property acquired in such Acquisition
for the most recent period of twelve consecutive fiscal months preceding such
Acquisition as reasonably determined by the Borrower and the Administrative
Agent.


 


“11 7/8% SENIOR SUBORDINATED INDENTURE” means
the Indenture, dated as of November 18, 1998, by and among Borrower, the
guarantors named therein and IBJ Schroder Bank & Trust Company, as
trustee, as such Indenture has been amended to the date hereof.


 


“11 7/8% SENIOR SUBORDINATED NOTES” means the
notes issued pursuant to the 11 7/8% Senior Subordinated Indenture.


 


13

















 


“ELIGIBLE ASSIGNEE” means (i) a Lender; (ii) unless
an assignment to such Person would result in any increased cost to the Borrower
under Section 3.6, 3.9 or 3.11, an Affiliate of a Lender or, with respect
to any Lender that is a fund that invests in bank loans as its primary
business, any other fund that invests in bank loans as its primary business
which is an “accredited investor” and is managed or advised by the same
investment advisor that manages or advises such Lender or by an Affiliate of
such investment advisor; and (iii) any other Person approved by each of
the Administrative Agent and the Borrower (such approval by each of the
Administrative Agent and the Borrower not to be unreasonably withheld or
delayed); provided, however, that neither the Borrower nor any
other Credit Party shall qualify as an Eligible Assignee and in no event shall
a competitor, customer or supplier of any Consolidated Party or Affiliate
thereof be an Eligible Assignee.


 


“ELIGIBLE REINVESTMENT”
means (i) any acquisition (whether or not constituting a capital
expenditure, but not constituting an Acquisition) by a Consolidated Party of
assets or any business (or any substantial part thereof) used or useful in the
same or a substantially similar line of business as the Consolidated Parties
were engaged in on the Closing Date (or any reasonable extensions or expansions
thereof) and (ii) any Permitted Acquisition. If any Subordinated Debt or
Qualified Preferred Stock shall have been issued, the term “Eligible
Reinvestment” shall not include any item which is not a permitted application
of proceeds of an “Asset Sale” (or any comparable term) under, and as defined
in, any Junior Financing Documentation.


 


“ENVIRONMENTAL LAWS” means any and all lawful
and applicable Federal, state, local and foreign statutes, laws (including,
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (“CERCLA”), the Resource Conservation and Recovery Act of
1976, the Toxic Substances Control Act, the Water Pollution Control Act, the
Clean Air Act and the Hazardous Materials Transportation Act), regulations,
ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or other governmental restrictions relating to
the environment or to emissions, discharges, releases or threatened releases of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes into the environment including, without limitation,
ambient air, surface water, ground water, or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes.


 


“EQUITY INVESTORS” means a collective
reference to (i) the Sponsor together with certain of its affiliates, (ii)  Pro-Fac
and (iii) any Person who beneficially owns, directly or indirectly, any
equity in Holdings LLC as of the Closing Date, and “EQUITY INVESTOR” means any
one of them.


 


“EQUITY ISSUANCE” means any issuance for cash
by any Consolidated Party to any Person of (a) shares of its Capital
Stock, (b) any shares of its Capital Stock pursuant to the exercise of
options or warrants, (c) any shares of its Capital Stock pursuant to the
conversion of any debt securities to equity or (d) any options or warrants



 


14

















 


relating to its Capital
Stock. An “Asset Disposition” shall not be deemed to be an Equity Issuance.


 


“ERISA” means the Employee Retirement Income
Security Act of 1974, as amended, and any successor statute thereto, as
interpreted by the rules and regulations thereunder, all as the same may
be in effect from time to time. References to sections of ERISA shall be
construed also to refer to any successor sections.


 


“ERISA AFFILIATE” means an entity which is
under common control with any Consolidated Party within the meaning of Section 4001(a)(14)
of ERISA, or is a member of a group which includes any Consolidated Party and
which is treated as a single employer under Sections 414(b) or (c) of
the Code.


 


“ERISA EVENT” means (i) with respect to
any Plan, the occurrence of a Reportable Event or the substantial cessation of
operations (within the meaning of Section 4062(e) of ERISA); (ii) the
withdrawal by any Consolidated Party or any ERISA Affiliate from a Multiple
Employer Plan during a plan year in which it was a substantial employer (as
such term is defined in Section 4001(a)(2) of ERISA), or the
termination of a Multiple Employer Plan; (iii) the distribution of a
notice of intent to terminate or the actual termination of a Plan pursuant to Section 4041(a)(2) or
4041A of ERISA; (iv) the institution of proceedings to terminate or the
actual termination of a Plan by the PBGC under Section 4042 of ERISA; (v) any
event or condition which could reasonably be expected to constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of
a trustee to administer, any Plan; (vi) the complete or partial withdrawal
of any Consolidated Party or any ERISA Affiliate from a Multiemployer Plan; (vii) the
conditions for imposition of a lien under Section 302(f) of ERISA
exist with respect to any Plan; or (viii) the adoption of an amendment to
any Plan requiring the provision of security to such Plan pursuant to Section 307
of ERISA.


 


“EURODOLLAR LOAN” means any Loan that bears
interest at a rate based upon the Eurodollar Rate.


 


“EURODOLLAR RATE” means, for any Eurodollar
Loan for any Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) determined by the Administrative Agent
to be equal to the quotient obtained by dividing (a) the Interbank Offered
Rate for such Eurodollar Loan for such Interest Period by (b) 1 minus the
Eurodollar Reserve Requirement for such Eurodollar Loan for such Interest
Period.


 


“EURODOLLAR RESERVE REQUIREMENT” means, at
any time, the maximum rate at which reserves (including, without limitation,
any marginal, special, supplemental, or emergency reserves) are required to be
maintained under regulations issued from time to time by the Board of Governors
of the Federal Reserve System (or any successor) by member banks of the Federal
Reserve System against “Eurocurrency liabilities” (as such term is used in
Regulation D). Without limiting the effect of the foregoing, the Eurodollar
Reserve Requirement shall reflect any other reserves required to be maintained
by such member banks with respect to (i) any category of liabilities 


 


15

















 


which includes deposits by
reference to which the Eurodollar Rate is to be determined, or (ii) any
category of extensions of credit or other assets which include Eurodollar
Loans. The Eurodollar Rate shall be adjusted automatically on and as of the
effective date of any change in the Eurodollar Reserve Requirement.


 


“EVENT OF DEFAULT” shall have the meaning
assigned to such term in Section 9.1.


 


“EXCESS CASH FLOW” means, with respect to any
fiscal year period of the Consolidated Parties on a consolidated basis, an
amount equal to (i) Consolidated EBITDA minus (ii) without
duplication, (A) the aggregate amount of Consolidated Capital Expenditures
(including with respect to any CapEx Rollover) made by Consolidated Parties
during such fiscal year and permitted hereunder or planned or committed in such
fiscal year to be made in the subsequent fiscal year, (B) Consolidated
Cash Interest Expense, (C) Consolidated Cash Taxes, including cash
payments for Federal, state and other income tax liabilities incurred prior to
the Closing Date, (D) Consolidated Scheduled Funded Debt Payments, (E) without
duplication of any item included under clause (B) above, Restricted
Payments made by the Consolidated Parties other than with the proceeds of any
Equity Issuance, to the extent that such Restricted Payments are permitted to
be made under Section 8.7, (F) voluntary prepayments of any
Indebtedness (other than the Credit Party Obligations), provided that (1) such
prepayments are otherwise permitted hereunder and (2) if such Indebtedness
consists of a revolving line of credit, the commitments under such line of
credit are permanently reduced by the amount of such prepayment, (G) letter
of credit fees, (H) proceeds received by the Consolidated Parties from
insurance claims with respect to casualty events, business interruption or
product recalls which reimburse prior business expenses, (I) all
extraordinary cash charges, (J) cash payments made in satisfaction of
non-current liabilities, (K) one-time cash fees and expenses incurred in
connection with the Transaction or, to the extent permitted hereunder, any
Asset Disposition, Permitted Investment, Equity Issuance or Debt Issuance
(whether or not consummated), (L) fees and expenses in connection with the
issuance, exchange or refinancing of any Subordinated Notes, Senior Unsecured
Debt, Incremental Term Loans, Revolving Commitment Increases or the GLK Note as
permitted hereunder, (M) cash indemnity payments received pursuant to
indemnification provisions in any agreement in connection with this Transaction
and any Permitted Acquisition (or in any similar agreement related to any other
Acquisition consummated prior to the Closing Date), (N) non-cash,
non-recurring charges, (O) other non-recurring cash charges in an
aggregate amount not to exceed $5,000,000 during any four consecutive fiscal
quarter period, (P) expenses in connection with payments made by any
Consolidated Party with respect to industrial revenue bond financings and
Guaranty Obligations in respect thereof, (Q) expenses incurred in
connection with deferred compensation arrangements in connection with the
Transaction (as defined in the Existing Credit Agreement), (R) management
fees permitted to be made under Section 8.9, (S) expenses
representing the implied principal component under Synthetic Leases, (T) annual
agency fees described in the Administrative Agent’s Fee Letter, (U) cash
costs associated with obtaining Hedging Agreements, (V)  the Pro-Fac
Payment, (W) amounts added back to Consolidated EBITDA pursuant to clause (U) (Discontinued
Operations) of the definition of 


 


16

















 


Consolidated EBITDA during
such period, (X) payments made by any Consolidated Party with respect to
any Permitted Investment, (Y) payments made pursuant to Section 8.9(i)(B) and
(Z) the excess, if any, of the aggregate principal amount advanced by the
Borrower to Pro-Fac pursuant to the loan facility permitted by Section 8.9(j) over
the aggregate principal amount repaid to the Borrower by Pro-Fac under such
loan facility during such period plus/minus (iii) changes in
working capital (in the case of this clause (iii), with appropriate adjustments
for asset acquisitions and dispositions).


 


“EXCESS PROCEEDS” shall have the meaning
assigned to such term in Section 7.6(b).


 


“EXCLUDED ASSET DISPOSITION” means, with
respect to any Consolidated Party, any Asset Disposition consisting of (i) the
sale, lease, license, transfer or other disposition of inventory or other
assets in the ordinary course of such Consolidated Party’s business, (ii) the
sale, lease, license, transfer or other disposition of Property no longer used
or useful in the conduct of such Consolidated Party’s business, (iii) any
Involuntary Disposition by such Consolidated Party, (iv) any sale, lease,
license, transfer or other disposition of Property by such Consolidated Party
to any Credit Party, provided that the Credit Parties shall cause to be
executed and delivered such documents, instruments and certificates as the
Administrative Agent may reasonably request so as to cause the Credit Parties
to be in compliance with the terms of Section 7.12 after giving effect to
such transaction, (v) any portion of an Asset Disposition by such
Consolidated Party constituting a Permitted Investment, (vi) if such
Consolidated Party is not a Credit Party, any sale, lease, license, transfer or
other disposition of Property by such Consolidated Party to any Consolidated
Party that is not a Credit Party, (vii) the sale or disposition of Cash
Equivalents for fair market value, (viii) any sale of accounts receivable
in connection with the compromise thereof, (ix) the assignment of past due
accounts for collection, (x) the licensing of Intellectual Property to
third Persons on customary terms as determined by the licensor’s board of
directors in good faith, (xi) any Acquired Non-Core Asset Disposition or
(xii) Discontinued Operations; provided, however, that the
term “Excluded Asset Disposition” shall not include any Asset Disposition to
the extent of the portion of the proceeds of such Asset Disposition that would
be required under any Junior Financing Documentation to be applied to
permanently retire Indebtedness of the Consolidated Parties.


 


“EXCLUDED DEBT ISSUANCE” means any Debt
Issuance permitted by Section 8.1 (other than Section 8.1(p)).


 


“EXCLUDED PROPERTY” means, with respect to
any Credit Party, including any Person that becomes a Credit Party after the
Closing Date as contemplated by Section 7.11, (i) any owned or leased
real or personal Property of such Credit Party which is located outside of the
United States (other than that portion of the Capital Stock of Material Foreign
Subsidiaries required to be pledged to the Administrative Agent pursuant to Section 7.12),
(ii) any owned real Property of such Credit Party which has a net book
value of less than $1,000,000, provided that the aggregate net book
value of all real Property of all of the Credit Parties excluded pursuant to
this clause (ii) shall not exceed $10,000,000, (iii) any leased real
Property of such Credit Party which (a) is 


 


17

















 


designated as an “Excluded
Property” on Schedule 6.20(a) or (b) at the written request of
the Borrower, the Administrative Agent has agreed in writing in its reasonable
discretion is not material, (iv) any leased personal Property of such
Credit Party, (v) any Property of such Credit Party which, subject to the
terms of Section 8.11 and Section 8.14, is subject to a Lien of the
type described in Section 8.2(h), or, to the extent constituting a Lien of
the type described in Section 8.2(g), Section 8.2(q)or Section 8.2(x) pursuant
to documents which prohibit such Credit Party from granting any other Liens in
such Property, (vi) owned motor vehicles of such Credit Party, provided
that the aggregate net book value of all owned motor vehicles of all of the
Credit Parties excluded pursuant to this clause (vi) shall not exceed
$7,500,000, (vii) contract rights (and related assets) under contracts
pertaining to the provision of goods or services to a Consolidated Party and in
respect of which the granting of a Lien is prohibited under customary
non-assignment provisions to the extent that such provisions have not been
waived and are effective under applicable law, and (viii) Capital Stock of
Joint Ventures and Foreign Subsidiaries which are not Material Foreign Subsidiaries.


 


“EXECUTIVE OFFICER” of any Person means any
of the chief executive officer, chief operating officer, president, chief
financial officer, treasurer or assistant treasurer of such Person, or any
other Person designated as an “Executive Officer” by the chief executive
officer, chief operating officer, president or chief financial officer.


 


“EXISTING CREDIT AGREEMENT” has the meaning
set forth in the recitals to this Credit Agreement.


 


“EXISTING LOANS” means loans outstanding
under the Existing Credit Agreement immediately before the funding of Loans
under this Credit Agreement.


 


“EXISTING LETTERS OF CREDIT” means the
letters of credit described by date of issuance, letter of credit number,
undrawn amount, name of beneficiary and date of expiry on Schedule 1.1B.


 


“EXITING LENDER” means each lender under the
Existing Credit Agreement which does not continue as a Lender under this Credit
Agreement.


 


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


 


“FEES” means all fees payable pursuant to Section 3.5.


 


18














 


“FFDCA” means the Federal Food, Drug, and
Cosmetic Act, as amended, 21 U.S.C. Section 301, et seq., and its
implementing regulations.


 


“FOOD SECURITY ACT” means the Food Security
Act of 1985, as amended, and any successor statute thereto, including all rules and
regulations thereunder, all as the same may be in effect from time to time.


 


“FOREIGN BORROWING BASE” means, as of any
date, an amount equal to (i) 80% of the aggregate face amount of accounts
receivable of Foreign Subsidiaries not more than 90 days past due as of the end
of the most recent fiscal quarter preceding such date plus (ii) 50%
of the aggregate book value of the inventory of Foreign Subsidiaries as of the
end of the most recent fiscal quarter preceding such date, all calculated on a
consolidated basis and in accordance with GAAP.


 


“FOREIGN SUBSIDIARY” means any direct or
indirect Subsidiary of the Borrower which is not a Domestic Subsidiary.


 


“FULLY SATISFIED” means, with respect to the
Credit Party Obligations as of any date, that, as of such date, (a) all
principal of and interest accrued to such date which constitute Credit Party
Obligations shall have been paid in full in cash, (b) all fees, expenses
and other amounts then due and payable which constitute Credit Party
Obligations shall have been paid in cash, (c) all outstanding Letters of
Credit shall have been (i) terminated, (ii) fully cash collateralized
or (iii) secured by one or more letters of credit on terms and conditions,
and with one or more financial institutions, reasonably satisfactory to the
Issuing Lender and (d) the Commitments shall have been expired or
terminated in full.


 


“FUNDED INDEBTEDNESS” means, with respect to
any Person, without duplication, (a) all obligations of such Person for
borrowed money, (b) all obligations of such Person under conditional sale
or other title retention agreements relating to Property purchased by such
Person (other than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of business), (c) all
obligations of such Person issued or assumed as the deferred purchase price of
Property or services purchased by such Person (other than accrued expenses and
trade debt incurred in the ordinary course of business) which would appear as
liabilities on a balance sheet of such Person and to the extent constituting
contingent obligations, (d) all Funded Indebtedness of others secured by
(or for which the holder of such Funded Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable out of the
proceeds of production from, Property owned or acquired by such Person, whether
or not the obligations secured thereby have been assumed, (e) the implied
principal component of all obligations of such Person under Capital Leases, (f) the
amount of unreimbursed drawings and funded outstandings under letters of credit
issued or bankers’ acceptances facilities created for the account of such
Person, (g) unless the holder thereof is a Credit Party or, if the issuer
thereof is a Consolidated Party which is not a Credit Party, any other
Consolidated Party, all preferred Capital Stock issued by such Person and which
by the terms thereof could be (at the request of the holders thereof or
otherwise) subject to mandatory sinking fund payments, redemption or other 


 


19

















 


acceleration (other than as
a result of a change of control or an Asset Disposition that does not in fact
result in a redemption of such preferred Capital Stock) at any time prior to
the Maturity Date, (h) the principal portion of all obligations of such
Person under Synthetic Leases and (i) the Funded Indebtedness of any
partnership or unincorporated joint venture in which such Person is a general
partner or a joint venturer to the extent such Funded Indebtedness is recourse
to such Person (it being agreed that such Funded Indebtedness shall be deemed
not to be recourse to such Person for purposes of this definition if the only
recourse of the holder of such Funded Indebtedness to such Person is a pledge
of the equity interests in such partnership or joint venture owned by such
Person and a related limited guarantee recourse solely to such equity
interests). Notwithstanding any other provision of this Credit Agreement to the
contrary, (i) the term “Funded Indebtedness” shall not be deemed to
include (w) any obligations of any Consolidated Party referred to in Section 8.9(i),
(x) any earn-out obligation until such obligation becomes a liability on
the balance sheet of the applicable Person, (y) any deferred compensation
arrangements or (z) any non-compete or consulting obligations incurred in
connection with Permitted Acquisitions, (ii) the amount of Funded
Indebtedness for which recourse is limited either to a specified amount or to
an identified asset of such Person shall be deemed to be equal to such
specified amount (or, if less, the fair market value of such identified asset)
and (iii) the amount of any Subordinated Debt shall be calculated without
regard to any purchase accounting adjustments.


 


“GAAP” means generally accepted accounting
principles in the United States applied on a consistent basis and subject to
the terms of Section 1.3 (except, in respect of (i) Joint Ventures of
the type described in clause (ii) of the definition thereof set forth in
this Section 1.1 and (ii) Synthetic Leases, as otherwise treated
herein).


 


“GLK” means Great Lakes Kraut Company, LLC,
and its successors.


 


“GLK NOTE” means the Subordinated Promissory
Note of the Borrower dated as of September 23, 1998 and due November 22,
2008, originally payable to Dean Foods Company in the original principal amount
of $30,000,000, as further amended, modified, supplemented, restated or
refinanced from time to time.


 


“GOVERNMENT ACTS” shall have the meaning
assigned to such term in Section 2.2(i)(i).


 


“GOVERNMENTAL AUTHORITY” means any Federal,
state, local or foreign court or governmental agency, authority,
instrumentality or regulatory body.


 


“GUARANTORS” means a collective reference to
the Parent and each of the Subsidiary Guarantors, together with their
successors and permitted assigns, and “GUARANTOR” means any one of them.


 


“GUARANTY OBLIGATIONS” means, with respect to
any Person, without duplication, any obligations of such Person (other than
endorsements in the ordinary course of business of negotiable instruments for
deposit or collection) guaranteeing or intended to guarantee any Indebtedness
of any other Person in any manner, whether 


 


20

















 


direct or indirect, and
including without limitation any obligation, whether or not contingent, (i) to
purchase any such Indebtedness or any Property constituting security therefor, (ii) to
advance or provide funds or other support for the payment or purchase of any
such Indebtedness or to maintain working capital, solvency or other balance
sheet condition of such other Person (including without limitation keep well
agreements, maintenance agreements, comfort letters or similar agreements or
arrangements) for the benefit of any holder of Indebtedness of such other
Person, (iii) to lease or purchase Property, securities or services
primarily for the purpose of assuring the holder of such Indebtedness, or (iv) to
otherwise assure or hold harmless the holder of such Indebtedness against loss
in respect thereof. The amount of any Guaranty Obligation hereunder shall
(subject to any limitations set forth therein) be deemed to be an amount equal
to the outstanding principal amount (or maximum principal amount, if larger) of
the Indebtedness in respect of which such Guaranty Obligation is made (or, if
less, the maximum amount of such principal amount for which such Person may be
liable under the terms of the instrument(s) evidencing such Guaranty
Obligation).


 


“HEDGING AGREEMENTS” means any interest rate
protection agreement, commodities purchase agreement or foreign currency
exchange agreement, including any agreement
with respect to any swap, forward, future or derivative transaction or option
or similar agreement involving, or settled by reference to, one or more rates,
currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk
or value or any similar transaction or any combination of these transactions; provided
that no phantom stock or similar plan providing for payments only on
account of services provided by current or former directors, officers,
employees or consultants of the Borrower or the Subsidiaries shall be a Hedging
Agreement.


 


“HOLDINGS LLC” has the meaning set forth in
the recitals to this Agreement.


 


“INCREMENTAL AMENDMENT” has the meaning
assigned to such term in Section 2.6.


 


“INCREMENTAL FACILITY CLOSING DATE” has the
meaning assigned to such term in Section 2.6.


 


“INCREMENTAL TERM LOANS” has the meaning
assigned to such term in Section 2.6.


 


“INDEBTEDNESS” means, with respect to any
Person, without duplication, (a) all obligations of such Person for
borrowed money, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such
Person under conditional sale or other title retention agreements relating to
Property purchased by such Person (other than customary reservations or
retentions of title under agreements with suppliers entered into in the
ordinary course of business), (d) all obligations of such Person issued or
assumed as the deferred purchase price of Property or services purchased by
such Person (other than accrued expenses and trade debt incurred in the
ordinary course of business) which would appear as liabilities on a 


 


21

















 


balance sheet of such
Person, (e) all Indebtedness of others secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien on, or payable out of the proceeds of production from,
Property owned or acquired by such Person, whether or not the obligations
secured thereby have been assumed, (f) all Guaranty Obligations of such
Person with respect to Indebtedness of another Person, (g) the implied
principal component of all obligations of such Person under Capital Leases, (h) all
net obligations of such Person (or, if less, the exposure of such Person) under
Hedging Agreements, (i) the maximum amount of all standby letters of
credit issued or bankers’ acceptances facilities created for the account of
such Person and, without duplication, all drafts drawn thereunder (to the
extent unreimbursed), (j) unless the holder thereof is a Credit Party or,
if the issuer thereof is a Consolidated Party which is not a Credit Party, any
other Consolidated Party, all preferred Capital Stock issued by such Person and
which by the terms thereof could be (at the request of the holders thereof or
otherwise) subject to mandatory sinking fund payments, redemption or other
acceleration (other than as a result of a change of control or an Asset
Disposition that does not in fact result in a redemption of such preferred
Capital Stock) at any time prior to the Maturity Date, (k) the principal
portion of all obligations of such Person under Synthetic Leases and (l) the
Indebtedness of any partnership or unincorporated joint venture in which such
Person is a general partner or a joint venturer to the extent such Indebtedness
is recourse to such Person (it being agreed that such Indebtedness shall be
deemed not to be recourse to such Person for purposes of this definition if the
only recourse of the holder of such Indebtedness to such Person is a pledge of
the equity interests in such partnership or joint venture owned by such Person
and a related limited guarantee recourse solely to such equity interests).
Notwithstanding any other provision of this Credit Agreement to the contrary, (i) the
term “Indebtedness” shall not be deemed to include any earn-out obligation
until such obligation becomes a liability on the balance sheet of the
applicable Person, (ii) the amount of Indebtedness for which recourse is
limited either to a specified amount or to an identified asset of such Person
shall be deemed to be equal to such specified amount (or, if less, the fair
market value of such identified asset), (iii) any obligations of any
Consolidated Party referred to in Section 8.9(i) and (iv) the
amount of any Subordinated Debt shall be calculated without regard to any
purchase accounting adjustments.


 


“INDEMNIFIED PARTY” shall have the meaning
assigned to such term in Section 11.5(b).


 


“INTELLECTUAL PROPERTY” shall have the
meaning assigned to such term in Section 6.17.


 


“INTERBANK OFFERED RATE” means, for any
Eurodollar Loan for any Interest Period therefor, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on Page 3750
(or any successor page) of the Telerate Screen as the London interbank offered
rate for deposits in Dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not available,
the term “Interbank Offered Rate” shall mean, for any Eurodollar Loan for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) 


 


22

















 


appearing on Reuters Screen
LIBO Page as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such Interest
Period; provided, however, if more than one rate is specified on
Reuters Screen LIBO Page, the applicable rate shall be the arithmetic mean of
all such rates (rounded upwards, if necessary, to the nearest 1/100 of 1%). If
the rates referenced in the preceding two sentences are not available, the term
“Interbank Offered Rate” shall mean, for any Eurodollar Loan for any Interest
Period therefor, the rate per annum determined by the Administrative Agent as
the rate of interest (rounded upwards, if necessary, to the nearest 1/100 of
1%) at which deposits in Dollars for delivery on the first day of such Interest
Period in same day funds in the approximate amount of the Eurodollar Loan being
made, continued or converted by JPMorgan Chase Bank and with a term equivalent
to such Interest Period would be offered by JPMorgan Chase Bank’s London Branch
to major banks in the offshore Dollar market at their request at approximately
11:00 A.M. (London time) two Business Days prior to the first day of such
Interest Period.


 


“INTEREST PAYMENT DATE” means (a) as to
Base Rate Loans and Swingline Loans (other than Quoted Rate Swingline Loans
which shall be the date agreed to by the Swingline Lender and Borrower), the
last Business Day of each March, June, September and December and the
Maturity Date, and (b) as to Eurodollar Loans, the last day of each
applicable Interest Period and the Maturity Date, and in addition where the
applicable Interest Period for a Eurodollar Loan is greater than three months,
then also the date three months from the beginning of the Interest Period and
each three months thereafter.


 


“INTEREST PERIOD” means (i) as to
Eurodollar Loans, a period of one, two, three or six (or, to the extent
available to all applicable Lenders, nine or twelve) months’ duration, as the
Borrower may elect, commencing, in each case, on the date of the borrowing
(including continuations and conversions thereof) and (ii) as to Quoted
Rate Swingline Loans, a period commencing on the date of the borrowing and
ending on the date agreed to by the Borrower and the Swingline Lender in
accordance with Section 2.3(b)(i); provided, however, (a) if
any Interest Period would end on a day which is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day (except
that where the next succeeding Business Day falls in the next succeeding
calendar month, then on the next preceding Business Day), (b) no Interest
Period shall extend beyond the Maturity Date and (c) where an Interest
Period begins on a day for which there is no numerically corresponding day in
the calendar month in which the Interest Period is to end, such Interest Period
shall end on the last Business Day of such calendar month.


 


“INVESTMENT” in any Person means (a) the
acquisition (whether for cash, property, services, assumption of Indebtedness,
securities or otherwise) of Property (other than in the ordinary course of
business and other than in a transaction constituting a Consolidated Capital
Expenditure), Capital Stock, bonds, notes, debentures, partnership, joint ventures
or other ownership interests or other securities of such other Person, (b) any
deposit with, or advance, loan or other extension of credit to, such Person
(other than deposits made in connection with leases or the purchase of
equipment, inventory and other assets in the ordinary course of business) or (c) any
other capital contribution to or 


 


23

















 


investment in such Person,
including, without limitation, any Guaranty Obligations (including any support for
a letter of credit issued on behalf of such Person) incurred for the benefit of
such Person and any portion of an Asset Disposition (other than an Excluded
Asset Disposition) to such Person for consideration less than the fair market
value of the Property disposed in such transaction, but excluding any
Restricted Payment to such Person. Investments which are capital contributions
or purchases of Capital Stock which have a right to participate in the profits
of the issuer thereof shall be valued at the amount actually contributed or
paid to purchase such Capital Stock as of the date of such contribution or
payment less all cash distributions and returns of capital from the date such
Investment is made through and including the date of calculation. Investments
which are loans, advances, extensions of credit or Guaranty Obligations shall
be valued at the principal amount of such loan, advance or extension of credit
outstanding as of the date of determination or, as applicable, the principal
amount of the loan or advance outstanding as of the date of determination
actually guaranteed by such Guaranty Obligation.


 


“INVOLUNTARY DISPOSITION” means any loss or
casualty of, damage to or destruction of, or any condemnation or other taking
for public use of, any Property of any Consolidated Party.


 


“INVOLUNTARY DISPOSITION PREPAYMENT EVENT”
means, with respect to any Involuntary Disposition, the failure of the Credit
Parties to apply (or cause to be applied) an amount equal to the Excess
Proceeds of such Involuntary Disposition, if any, to either (i) prepay the
Loans (and cash collateralize the LOC Obligations) in accordance with the terms
of Section 3.3(b)(iii)(B) or (ii) make Eligible Reinvestments
(including but not limited to the repair or replacement of the Property
affected by such Involuntary Disposition) within the period of 540 days
following the date of receipt of such Excess Proceeds (or such shorter period
as specified in any Junior Financing Documentation), subject to the terms and
conditions of Section 7.6(b).


 


“IPO ISSUER” means, in respect of a
Qualifying IPO, the Person (as among Holdings LLC, any parent company of
Holdings LLC which owns 100% of the Capital Stock of Holdings LLC (other than
the Sponsor and its related funds), the Parent or the Borrower and subject to
the definition of the term “Change of Control” set forth in this Section 1.1)
that is the issuer of the common Capital Stock offered in such Qualifying IPO.


 


“ISSUING LENDER” means JPMorgan Chase Bank.


 


“JOINDER AGREEMENT” means a Joinder Agreement
substantially in the form of Exhibit 7.11 hereto, executed and
delivered by a new Guarantor in accordance with the provisions of Section 7.11.


 


“JOINT VENTURE” means (i) any Person
which would constitute an “equity method investee” under GAAP of a Consolidated
Party and (ii) any other Person designated by the Credit Parties in
writing to the Administrative Agent (which designation shall be irrevocable) as
a “Joint Venture” for purposes of this Credit 


 


24

















 


Agreement and more than 50%
but less than 100% of whose Capital Stock is directly owned by any Consolidated
Party; provided, however, that (a) no Person which is a
Subsidiary of the Parent as of the Closing Date may be designated by the
Consolidated Parties as a Joint Venture and (b) GLK shall be deemed to be
Joint Venture until the Credit Parties designate in writing to the
Administrative Agent (which designation shall be irrevocable) that GLK shall be
a Subsidiary for purposes hereunder.


 


“JPMORGAN CHASE BANK” means JPMorgan Chase
Bank, N.A. and its successors.


 


“JUNIOR FINANCING DOCUMENTATION” means (i) the
Subordinated Debt Indentures, if any, (ii) the Subordinated Notes, if any,
(iii) the GLK Note, (iv) any other documentation governing any
Subordinated Debt and (v) any documentation governing any Qualified
Preferred Stock.


 


“LENDER” means any of the Persons identified
as a “Lender” on the signature pages hereto, and any Person which may
become a Lender by way of assignment in accordance with the terms hereof,
together with their successors and permitted assigns.


 


“LENDING PARTY” shall have the meaning
assigned to such term in Section 11.14.


 


“LETTER OF CREDIT” means (i) any letter
of credit issued by the Issuing Lender for the account of the Borrower in
accordance with the terms of Section 2.2 and (ii) any Existing Letter
of Credit, in each case including any amendments thereto.


 


“LIEN” means any mortgage, pledge,
hypothecation, collateral assignment, deposit arrangement, security interest,
encumbrance, lien (statutory or otherwise), preference, priority or charge of
any kind (including any agreement to give any of the foregoing, any conditional
sale or other title retention agreement, any financing or similar statement or
notice filed under the Uniform Commercial Code as adopted and in effect in the
relevant jurisdiction or other similar recording or notice statute, and any
lease in the nature thereof).


 


“LOAN” or “LOANS” means the Revolving Loans,
the Tranche B Term Loans (or a portion of any Revolving Loan or Tranche B Term
Loan bearing interest at the Adjusted Base Rate or the Adjusted Eurodollar Rate
and referred to as a Base Rate Loan or a Eurodollar Loan) and/or the Swingline
Loans (or any Swingline Loan bearing interest at the Adjusted Base Rate or the
Quoted Rate and referred to as a Base Rate Loan or a Quoted Rate Swingline
Loan), individually or collectively, as appropriate.


 


“LOC COMMITMENT” means the commitment of the
Issuing Lender to issue Letters of Credit in an aggregate face amount at any
time outstanding (together with the amounts of any unreimbursed drawings
thereon) of up to the LOC Committed Amount.


 


“LOC COMMITTED AMOUNT” shall have the meaning
assigned to such term in Section 2.2.


 


25

















 


“LOC DOCUMENTS” means, with respect to any
Letter of Credit, such Letter of Credit, any amendments thereto, any
application therefor, and any agreements, instruments, guarantees or other
documents (whether general in application or applicable only to such Letter of
Credit) governing or providing for the rights and obligations of the parties
concerned or at risk.


 


“LOC OBLIGATIONS” means, at any time, the
sum, without duplication, of (i) the maximum amount which is, or at any
time thereafter may become, available to be drawn under Letters of Credit then
outstanding, assuming compliance with all requirements for drawings referred to
in such Letters of Credit plus (ii) the aggregate amount of all
drawings under Letters of Credit honored by the Issuing Lender but not
theretofore reimbursed by the Borrower.


 


“MATERIAL ADVERSE EFFECT” means a material
adverse effect on (i) the financial condition, operations, business,
assets or liabilities of the Consolidated Parties taken as a whole, (ii) the
ability of the Credit Parties (taken as a whole) to perform any material
obligation under the Credit Documents or (iii) the material rights and
remedies of the Administrative Agent and the Lenders under the Credit
Documents.  The Lenders agree that the
discontinuation and transition from the non-branded frozen vegetable business
does not constitute a Material Adverse Change.


 


“MATERIAL DOMESTIC SUBSIDIARY” means, at any
time, (a) any Domestic Subsidiary (i) which is directly owned by the
Borrower or any Subsidiary and (ii) with respect to which either (A) its
annual revenues exceed $1,000,000 for the most recently ended twelve-month
period or (B) its total assets, as determined in accordance with GAAP, at
such time is greater than $1,000,000 and (b) any Domestic Subsidiary which
has incurred Indebtedness in excess of $100,000; provided that (i) the
aggregate annual revenues of all non-Material Domestic Subsidiaries shall not
exceed $5,000,000 for the most recently ended twelve-month period, (ii) the
aggregate total assets of all non-Material Domestic Subsidiaries, as determined
in accordance with GAAP, shall not exceed $5,000,000 at any one time and (iii) Seasonal
Employers, Inc. shall be deemed not to be a Material Domestic Subsidiary
so long as it is engaged solely in the same type of business as it is engaged
as of the date hereof.


 


“MATERIAL FOREIGN SUBSIDIARY” means, at any
time, any Foreign Subsidiary (i) which is directly owned by the Borrower
or any Domestic Subsidiary and (ii) with respect to which either (a) the
portion of Consolidated EBITDA attributable to such Person and its Subsidiaries
on a consolidated basis for the most recently ended twelve-month period is 5%
or more of total Consolidated EBITDA for such period or (b) the portion of
Consolidated Total Assets owned by such Person and its Subsidiaries on a
consolidated basis at such time is 5% or more of total Consolidated Total
Assets at such time.


 


“MATERIALS OF ENVIRONMENTAL CONCERN” means
any gasoline or petroleum (including crude oil or any fraction thereof) or
petroleum products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or 


 


26

















 


under any Environmental
Laws, including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.


 


“MATURITY DATE” means (i) as to the
Revolving Loans, Letters of Credit (and the related LOC Obligations) and
Swingline Loans, March     , 2012 and (ii) as to
the Tranche B Term Loan, March     , 2013.


 


“MOODY’S” means Moody’s Investors Service, Inc.,
or any successor or assignee of the business of such company in the business of
rating securities.


 


“MORTGAGE INSTRUMENTS” shall have the meaning
assigned such term in Section 5.1(e).


 


“MORTGAGED PROPERTIES” shall have the meaning
assigned such term in Section 5.1(e).


 


“MULTIEMPLOYER PLAN” means a Plan which is a “multiemployer
plan” as defined in Sections 3(37) or 4001(a)(3) of ERISA.


 


“MULTIPLE EMPLOYER PLAN” means a Plan (other
than a Multiemployer Plan) with respect to which any Consolidated Party or any
ERISA Affiliate and at least one employer other than the Consolidated Parties
or any ERISA Affiliate are contributing sponsors.


 


“NET CASH PROCEEDS” means the aggregate cash
or Cash Equivalents proceeds received by any Consolidated Party in respect of
any Asset Disposition, Equity Issuance, Debt Issuance or Involuntary
Disposition, net of (a) direct costs (including, without limitation,
legal, accounting and investment banking fees, and sales commissions), (b) taxes
paid or payable as a result thereof and (c) in the case of any Asset
Disposition, (i) the amount necessary to retire any Indebtedness secured
by a Permitted Lien (ranking senior to any Lien of the Administrative Agent) on
the related Property, (ii) any reserve for adjustment in respect of (A) the
sale price of such asset or assets established in accordance with GAAP and (B) any
liabilities associated with such asset or assets and retained by the
Consolidated Parties after such sale or other disposition thereof, including,
without limitation, pension and other post-employment benefit liabilities and
liabilities related to environmental matters or against any indemnification
obligations associated with such transaction and (iii) reorganization,
shut-down and severance costs incurred during the Application Period for such
Asset Disposition; it being understood that “Net Cash Proceeds” shall include,
without limitation, any cash or Cash Equivalents received upon (i) the
sale or other disposition of any non-cash consideration received by any such
Consolidated Party in any Asset Disposition, Equity Issuance, Debt Issuance or
Involuntary Disposition or (ii) the reversal (without the satisfaction of
expenses in cash in a corresponding amount) of any reserve described in clause (ii) of
the preceding sentence. In addition, the “Net Cash Proceeds” of any Asset
Disposition shall include any other amounts which constitute “Net Proceeds” (or
any comparable term) of such transaction under, and as defined in, any Junior
Financing Documentation.


 


27

















 


“NOTE” or “NOTES” means the Revolving Notes,
the Tranche B Term Notes and/or the Swingline Note, individually or
collectively, as appropriate.


 


“NOTICE OF BORROWING” means a written notice
of borrowing signed by an Executive Officer of the Borrower in substantially
the form of Exhibit 2.1(b)(i), as required by Section 2.1(b)(i) or
Section 2.5(b).


 


“NOTICE OF EXTENSION/CONVERSION” means the
written notice of extension or conversion in substantially the form of Exhibit 3.2,
as required by Section 3.2.


 


“OTHER TAXES” shall have the meaning assigned
to such term in Section 3.11(b).


 


“PACA” means the Perishable Agricultural
Commodities Act as amended, 7 U.S.C. Section 499a, et seq. and its implementing
regulations.


 


“PARENT” means the Person identified as such
in the heading hereof, together with any permitted successors and assigns.


 


“PARTICIPANT” shall have the meaning assigned
to such term in Section 11.3.


 


“PARTICIPATION INTEREST” means a purchase by
a Lender of a participation in Letters of Credit or LOC Obligations as provided
in Section 2.2, in Swingline Loans as provided in Section 2.3 or in
any Loans or other extensions of credit as provided in Section 3.14.


 


“PBGC” means the Pension Benefit Guaranty
Corporation established pursuant to Subtitle A of Title IV of ERISA and any
successor thereof.


 


“PERISHABLE AGRICULTURAL COMMODITIES” shall
have the meaning assigned to such term by PACA.


 


“PERMITTED ACQUISITION” means, at any time,
an Acquisition by the Borrower or any Subsidiary of the Borrower permitted at
such time pursuant to the terms of Section 8.6(h).


 


“PERMITTED ASSET DISPOSITION” means, at any
time, (i) any Asset Disposition permitted at such time by Section 8.5
and (ii) any Excluded Asset Disposition.


 


“PERMITTED INVESTMENTS” means, at any time,
Investments by the Consolidated Parties permitted to exist at such time
pursuant to the terms of Section 8.6.


 


“PERMITTED LIENS” means, at any time, Liens
in respect of Property of the Consolidated Parties permitted to exist at such
time pursuant to the terms of Section 8.2.


 


28














 


“PERMITTED RETAINED EXCESS CASH FLOW AMOUNT’
means at any date the aggregate amount of annual Excess Cash Flow for each
completed fiscal year of the Consolidated Parties (beginning with Excess Cash
Flow for the fiscal year ending on or about June 30, 2008) which the
Borrower is not required to use to prepay the Loans pursuant to Section 3.3(b)(ii).


 


“PERSON” means any individual, partnership,
joint venture, firm, corporation, limited liability company, association, trust
or other enterprise (whether or not incorporated) or any Governmental
Authority.


 


“PLAN” means any employee benefit plan (as
defined in Section 3(3) of ERISA) which is subject to Title IV of
ERISA and with respect to which any Consolidated Party or any ERISA Affiliate
is (or, if such plan were terminated at such time, would under Section 4069
of ERISA be deemed to be) an “employer” within the meaning of Section 3(5) of
ERISA.


 


“PREFERRED SECURITIES REDEMPTION” has the
meaning set forth in the recitals to this Agreement.


 


“PRIME RATE” means the per annum rate of
interest established from time to time by JPMorgan Chase Bank as its prime
rate, which rate may not be the lowest rate of interest charged by JPMorgan
Chase Bank to its customers.


 


“PRINCIPAL AMORTIZATION PAYMENT” means a
principal payment on the Tranche B Term Loans as set forth in Section 2.5(d).


 


“PRINCIPAL AMORTIZATION PAYMENT DATE” means
the date a Principal Amortization Payment is due.


 


“PRINCIPAL OFFICE” means the principal office
of JPMorgan Chase Bank, presently located at New York, New York.


 


“PRO-FAC” means Pro-Fac Cooperative, Inc.,
a New York agricultural cooperative corporation.


 


“PRO-FAC PAYMENT” shall have the meaning
assigned to such term in Section 8.9.


 


“PRO FORMA BASIS” means, for purposes of
calculating (utilizing the principles set forth in the second paragraph of Section 1.3)
compliance with the financial covenant set forth in Section 7.10 and the
Consolidated Net Leverage Level and the Consolidated Net Senior Secured
Leverage Level in respect of a proposed transaction, that such transaction
shall be deemed to have occurred as of the first day of the four fiscal-quarter
period ending as of the most recent fiscal quarter end preceding the date of
such transaction with respect to which the Administrative Agent has received
the Required Financial Information. As used herein, “TRANSACTION” shall mean (i) any
Asset Disposition as referred to in Section 8.5, (ii) any Acquisition
as referred to in Section 8.6(h), (iii) any Investment (or series of
related Investments) made pursuant to 


 


29

















 


Section 8.6(p) to
the extent consisting of the contribution(s) or other transfer(s) of
Property (other than cash) to a Joint Venture for consideration less than the
fair market value of such Property, (iv) any issuance of Indebtedness made
pursuant to Section 2.6 or 8.1(f) or (v) any other transaction
permitted by this Agreement expressly requiring pro  forma
compliance with the financial covenant set forth in Section 7.10 and the
Consolidated Net Leverage Level and/or the Consolidated Net Senior Secured
Leverage Level. In connection with any calculation of the Consolidated Net
Leverage Level and/or the Consolidated Net Senior Secured Leverage Level upon
giving effect to a transaction on a Pro Forma Basis:


 


(A)          for
purposes of any such calculation in respect of any Asset Disposition as
referred to in Section 8.5 or any Investment (or series of related
Investments) as referred to in Section 8.6(p), (1) income statement
items (whether positive or negative) attributable to the Property disposed of
or contributed or otherwise transferred, as applicable, shall be excluded and (2) any
Indebtedness which is retired in connection with such transaction shall be
excluded and deemed to have been retired as of the first day of the applicable
period; and


 


(B)           for
purposes of any such calculation in respect of any Acquisition as referred to
in Section 8.6(h) or any other such transaction, (1) any
Indebtedness incurred by any Consolidated Party in connection with such
transaction (x) shall be deemed to have been incurred as of the first day
of the applicable period and (y) if such Indebtedness has a floating or
formula rate, shall have an implied rate of interest for the applicable period
for purposes of this definition determined by utilizing the rate which is or
would be in effect with respect to such Indebtedness as at the relevant date of
determination, (2) if applicable, income statement items (whether positive
or negative) attributable to the Person or Property acquired shall be included
beginning as of the first day of the applicable period, (3) any
Indebtedness which is retired in connection with such transaction shall be
excluded and deemed to have been retired as of the first day of the applicable
period and (4) if an acquisition, pro forma adjustments may be included to
the extent that such adjustments are consistent with the definition of “Consolidated
EBITDA” set forth in this Section 1.1 and give effect to events that are (x) directly
attributable to such transaction, (y) expected to have a continuing impact
on the Consolidated Parties and (z) factually supportable.


 


“PRO FORMA COMPLIANCE CERTIFICATE” means a
certificate of an Executive Officer of the Borrower delivered to the
Administrative Agent in connection with (i) any Asset Disposition as
referred to in Section 8.5, (ii) any Acquisition as referred to in Section 8.6(h),
(iii) any Investment (or series of related Investments) made pursuant to Section 8.6(p) to
the extent consisting of the contribution(s) or other transfer(s) of
Property (other than cash) to a Joint Venture for consideration less than the
fair market value of such Property, (iv) any Indebtedness incurred
pursuant to Section 2.6 or 8.1(f) or (v) any other transaction
permitted by this Agreement expressly requiring pro  forma
compliance with the financial covenant set forth in Section 7.10 and the
Consolidated Net Leverage Level and/or the Consolidated Net Senior Secured
Leverage Level and containing reasonably detailed calculations, upon giving
effect to the 


 


30

















 


applicable transaction on a
Pro Forma Basis, of the Consolidated Net Leverage Level and/or the Consolidated
Net Senior Secured Leverage Level as of the most recent fiscal quarter end
preceding the date of the applicable transaction with respect to which the
Administrative Agent shall have received the Required Financial Information.


 


“PROPERTY” means any interest in any kind of
property or asset, whether real, personal or mixed, or tangible or intangible.


 


“PURCHASE RELATED AGREEMENTS” means,
collectively, the Management Services Agreement, the Securityholders Agreement,
the Amended and Restated Marketing and Facilitation Agreement and the
Termination Agreement, as defined in the Unit Purchase Agreement and as in
effect on the date hereof, as the same may be amended, modified, restated or
supplemented from time to time in accordance with the terms hereof.


 


“QUALIFIED PREFERRED STOCK” means any
preferred Capital Stock issued by the Parent or the Borrower (i) which
constitutes Indebtedness under clause (j) of the definition thereof and (ii) that
is subordinated to the Credit Party Obligations identified in clauses (i) and
(ii) thereof on terms no less favorable to the Lenders than the 11 7/8%
Senior Subordinated Indenture and permits (and does not restrict payment of)
the Credit Facilities (including any Incremental Term Loans) and guarantees and
collateral security therefor.


 


“QUALIFYING IPO” means an Equity Issuance by
the IPO Issuer (subject to the definition of the term “Change of Control” set
forth in Section 1.1) consisting of an underwritten primary public
offering (other than a public offering pursuant to a registration statement on Form S-8)
of its common Capital Stock (i) pursuant to an effective registration
statement filed with the Securities and Exchange Commission in accordance with
the Securities Act (whether alone or in connection with a secondary public
offering) and (ii) resulting in gross proceeds to the IPO Issuer of at
least $50,000,000.


 


“QUOTED RATE” means, with respect to any
Quoted Rate Swingline Loan, the fixed percentage rate per annum offered by the
Swingline Lender and accepted by the Borrower with respect to such Swingline
Loan as provided in accordance with the provisions of Section 2.3.


 


“QUOTED RATE SWINGLINE LOAN” means a
Swingline Loan bearing interest at a Quoted Rate.


 


“REAL PROPERTIES” means, at any time, a
collective reference to each of the real properties owned, leased or operated
by the Consolidated Parties at such time.


 


“RECAPITALIZATION” has the meaning set forth
in the recitals to this Credit Agreement.


 


“REFINANCING” has the meaning set forth in
the recitals to this Credit Agreement.


 


31

















 


“REGISTER” shall have the meaning assigned to
such term in Section 11.3(b)(iv).


 


“REGULATION D, T, U, OR X” means Regulation
D, T, U or X, respectively, 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.


 


“REPORTABLE EVENT” means any of the events
set forth in Section 4043(c) of ERISA, other than those events as to
which the notice requirement has been waived by regulation.


 


“REQUIRED FINANCIAL INFORMATION” means, with
respect to the applicable Calculation Date, (i) the financial statements
of the Consolidated Parties required to be delivered pursuant to Section 7.1(a) or
(b) for the fiscal period or quarter ending as of such Calculation Date,
and (ii) the certificate of an Executive Officer of the Borrower required
by Section 7.1(c) to be delivered with the financial statements
described in clause (i) above.


 


“REQUIRED LENDERS” means, at any time,
Lenders (other than Defaulting Lenders) holding in the aggregate at least a
majority of (i) the Revolving Commitments and the outstanding Tranche B
Term Loans or (ii) if all of the Revolving Commitments have been
terminated, the outstanding Loans and LOC Obligations (including, without
limitation, Participation Interests).


 


“REQUIRED REVOLVING LENDERS” means, at any
time, Lenders (other than Defaulting Lenders) holding in the aggregate at least
a majority of (i) the Revolving Commitments or (ii) if all of the
Revolving Commitments have been terminated, the outstanding Revolving Loans,
Swingline Loans and LOC Obligations (including, without limitation,
Participation Interests).


 


“REQUIREMENT OF LAW” means, as to any Person,
the certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or
regulation or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or to which
any of its material property is subject.


 


“RESTRICTED PAYMENT” means (i) any
dividend or other payment or distribution, direct or indirect, on account of
any shares of any class of Capital Stock of any Consolidated Party, now or
hereafter outstanding (including without limitation any payment in connection
with any dissolution, merger, consolidation or disposition involving any
Consolidated Party), or to the holders, in their capacity as such, of any
shares of any class of Capital Stock of any Consolidated Party, now or
hereafter outstanding (other than dividends or distributions (including distributions
in connection with any restructure, merger, consolidation or disposition)
payable (A) in Capital Stock of the applicable Person, (B) to any
Credit Party (other than the Parent) or (C) except in the case of the
Borrower or the Parent, ratably to minority shareholders of the applicable
Person), (ii) any redemption, retirement, sinking fund or similar payment,
purchase or 


 


32

















 


other acquisition for value,
direct or indirect, of any shares of any class of Capital Stock of any
Consolidated Party, now or hereafter outstanding, (iii) any payment made
to retire, or to obtain the surrender of, any outstanding warrants, options or
other rights to acquire shares of any class of Capital Stock of any Consolidated
Party, now or hereafter outstanding and (iv) any payment or prepayment of
principal of, premium, if any, or interest on, including any redemption,
purchase, retirement, defeasance, sinking fund or similar payment with respect
to, any Subordinated Debt or Qualified Preferred Stock.  The cancellation of Indebtedness shall not be
deemed to constitute a “Restricted Payment”.


 


“REVOLVING COMMITMENT” means, with respect to
each Lender, the commitment of such Lender in an aggregate principal amount at
any time outstanding of up to such Lender’s Revolving Commitment Percentage (if
any) of the Revolving Committed Amount, (i) to make Revolving Loans in
accordance with the provisions of Section 2.1(a), (ii) to purchase
Participation Interests in Letters of Credit in accordance with the provisions
of Section 2.2(c) and (iii) to purchase Participation Interests
in Swingline Loans in accordance with the provisions of Section 2.3(b)(iii).


 


“REVOLVING COMMITMENT PERCENTAGE” means, for
any Lender, the percentage identified as its Revolving Commitment Percentage on
Schedule 2.1(a), as such percentage may be modified in connection with
any assignment made in accordance with the provisions of Section 11.3.


 


“REVOLVING COMMITTED AMOUNT” shall have the
meaning assigned to such term in Section 2.1(a).


 


“REVOLVING LENDER” each Lender that has
Revolving Commitments or holds Revolving Loans.


 


“REVOLVING LOANS” shall have the meaning
assigned to such term in Section 2.1(a).


 


“REVOLVING NOTE” shall have the meaning
assigned to such term in Section 2.1(e).


 


“S&P” means Standard & Poor’s
Ratings Group, a division of The McGraw Hill Companies, Inc., or any
successor or assignee of the business of such division in the business of
rating securities.


 


“SALE AND LEASEBACK TRANSACTION” means any
direct or indirect arrangement with any Person or to which any such Person is a
party, providing for the leasing to any Consolidated Party of any Property,
whether owned by such Consolidated Party as of the Closing Date or later
acquired, which has been or is to be sold or transferred by such Consolidated
Party to such Person or to any other Person from whom funds have been, or are
to be, advanced by such Person on the security of such Property.


 


“SECURITIES ACT” means the Securities Act of
1933, as amended, and all regulations issued pursuant thereto.


 


33

















 


“SECURITIES EXCHANGE ACT” means the
Securities Exchange Act of 1934, as amended, and all regulations issued
pursuant thereto.


 


“SENIOR UNSECURED DEBT” means unsecured
Indebtedness of the Borrower (which may be guaranteed by the other Credit
Parties on an unsecured basis) which (a) permits (and does not restrict
payment of) the Credit Facilities (including any Incremental Term Loans and
Revolving Commitment Increases) and guarantees and collateral security therefor
and (b) requires no payment in respect of principal (other than pursuant
to requirements to offer to purchase based on a change of control or receipt of
asset sale proceeds in accordance with then customary high yield provisions)
prior to the date which is six months after the Maturity Date for the Tranche B
Term Facility (or, if later, six months after the final scheduled maturity date
of any Incremental Term Loans).


 


“SINGLE EMPLOYER PLAN” means any Plan which
is covered by Title IV of ERISA, but which is not a Multiemployer Plan or a
Multiple Employer Plan.


 


“SOLVENT” or “SOLVENCY” means, with respect
to any Person as of a particular date, that on such date (i) such Person
is able to pay its debts and other liabilities, contingent obligations and
other commitments as they mature in the normal course of business, (ii) such
Person does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person’s ability generally to pay its debts and
liabilities as they mature in their ordinary course, (iii) such Person is
not engaged in a business or a transaction, and is not about to engage in a
business or a transaction, for which such Person’s Property would constitute
unreasonably small capital after giving due consideration to the prevailing
practice in the industry in which such Person is engaged or is to engage, (iv) the
fair value of the Property of such Person on a going concern basis is greater
than the total amount of liabilities, including, without limitation, contingent
liabilities, of such Person and (v) the present fair salable value of the
assets of such Person is not less than the amount that will be required to pay
the probable liability of such Person on its debts as they become absolute and
matured. In computing the amount of contingent liabilities at any time, it is
intended that such liabilities will be computed at the amount which, in light
of all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability.


 


“SPONSOR” means Vestar Capital Partners IV,
L.P. and its Affiliates.


 


“STANDBY LETTER OF CREDIT FEE” shall have the
meaning assigned to such term in Section 3.5(b)(i).


 


“SUBORDINATED DEBT” means (i) any
Indebtedness of the Borrower evidenced and governed by the GLK Note and (ii) any
Indebtedness of the Borrower, including any unsecured subordinated guarantees
thereof by any Credit Party, which (a) is subordinated to the Credit Party
Obligations identified in clauses (i) and (ii) thereof on terms no
less favorable to the Lenders than the 11 7/8% Senior Subordinated Indenture
and permits (and does not restrict payment of) the Credit Facilities (including
the Incremental Term Loans and Revolving Commitment Increases) and guarantees
and 


 


34

















 


collateral security
therefor, and (b) requires no payment in respect of principal (other than
pursuant to requirements to offer to purchase based on a change of control or
receipt of asset sale proceeds in accordance with then customary high yield
provisions) prior to the date which is six months after the Maturity Date for
the Tranche B Term Facility (or, if later, six months after the final scheduled
maturity date of any Incremental Term Loans).


 


“SUBORDINATED DEBT INDENTURES” means,
collectively, each indenture or agreement evidencing Subordinated Debt, as
amended, modified, exchanged, restated or supplemented and in effect from time
to time in accordance with this Credit Agreement.


 


“SUBORDINATED NOTES” means any notes or other
instruments evidencing Subordinated Debt, as amended, modified, exchanged,
refinanced, restated or supplemented and in effect from time to time in
accordance with this Credit Agreement.


 


“SUBSIDIARY” means, as to any Person at any
time, (a) any corporation more than 50% of whose Capital 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 such time, any class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at such time
owned by such Person directly or indirectly through Subsidiaries, and (b) any
partnership, association, joint venture or other entity of which such Person
directly or indirectly through Subsidiaries owns at such time more than 50% of
the Capital Stock; provided, however, that, notwithstanding any
other provision to the contrary contained in this Credit Agreement, a Joint
Venture shall not constitute a Subsidiary.


 


“SUBSIDIARY GUARANTOR” means each of the
Persons identified as a “Subsidiary Guarantor” on the signature pages hereto
and each Person which may hereafter execute a Joinder Agreement pursuant to Section 7.11,
together with their successors and permitted assigns, and “SUBSIDIARY GUARANTOR”
means any one of them.


 


“SWINGLINE COMMITTED AMOUNT” shall have the
meaning assigned to such term in Section 2.3(a).


 


“SWINGLINE LENDER” means JPMorgan Chase Bank.


 


“SWINGLINE LOAN” shall have the meaning
assigned to such term in Section 2.3(a).


 


“SWINGLINE NOTE” shall have the meaning
assigned to such term in Section 2.3(d).


 


“SYNTHETIC LEASE” means any
synthetic lease, tax retention operating lease, off-balance sheet loan or
similar off-balance sheet financing product where such transaction is
considered borrowed money indebtedness for tax purposes but is classified as an
operating lease under GAAP.


 


35

















 


“TAXES” shall have the meaning assigned to
such term in Section 3.11(a).


 


“TRADE LETTER OF CREDIT FEE” shall have the
meaning assigned to such term in Section 3.5(b)(ii).


 


“TRANCHE B TERM LOAN” shall have the meaning
assigned to such term in Section 2.5(a).


 


“TRANCHE B TERM LOAN COMMITMENT” means, with
respect to each Lender, the commitment of such Lender to make its portion of
the Tranche B Term Loan in a principal amount equal to such Lender’s Tranche B
Term Loan Percentage (if any) of the Tranche B Term Loan Committed Amount.


 


“TRANCHE B TERM LOAN COMMITTED AMOUNT” shall
have the meaning assigned to such term in Section 2.5(a).


 


“TRANCHE B TERM LOAN PERCENTAGE” means, for
any Lender, the percentage identified as its Tranche B Term Loan Percentage on Schedule
2.1(a), as such percentage may be modified in connection with any assignment
made in accordance with the provisions of Section 11.3.


 


“TRANCHE B TERM NOTE” shall have the meaning
assigned to such term in Section 2.5(f).


 


“TRANSACTION” means a reference to the
Recapitalization.


 


“UNIT PURCHASE AGREEMENT” means the Unit
Purchase Agreement, dated as of June 20, 2002, by and among Holdings LLC,
the Borrower and Pro-Fac, including the exhibits and schedules thereto, as
amended, modified, restated or supplemented and in effect from time to time.


 


“UNUSED FEE” shall have the meaning assigned
to such term in Section 3.5(a).


 


“UNUSED FEE CALCULATION PERIOD” shall have
the meaning assigned to such term in Section 3.5(a).


 


“UNUSED REVOLVING COMMITTED AMOUNT” means,
for any period, the amount by which (a) the then applicable Revolving
Committed Amount (other than any portion of the Revolving Committed Amount
attributable to a Lender that was a Defaulting Lender during such period)
exceeds (b) the daily average sum for such period of (i) the
outstanding aggregate principal amount of all Revolving Loans (but not
including any Swingline Loans) plus (ii) the outstanding aggregate
principal amount of all LOC Obligations.


 


“VOTING STOCK” means, with respect to any
Person, Capital Stock issued by such Person the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the election
of directors (or persons performing similar functions) of such 


 


36

















 


Person, even though the
right so to vote has been suspended by the happening of such a contingency.


 


“WHOLLY OWNED SUBSIDIARY” of any Person means
any Subsidiary 100% of whose Voting Stock (other than director’s qualifying
shares or other shares required by law to be held by a third party) is at the
time owned by such Person directly or indirectly through other Wholly-Owned
Subsidiaries.


 


1.2.   
COMPUTATION OF TIME PERIODS.


 


For purposes of computation of periods of time
hereunder, the word “from” means “from and including” and the words “to” and “until”
each mean “to but excluding.”


 


1.3.    ACCOUNTING TERMS.


 


Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all financial statements
and certificates and reports as to financial matters required to be delivered
to the Lenders hereunder shall be prepared, in accordance with GAAP applied on
a consistent basis except as otherwise expressly provided herein; provided,
however, that calculations of the implied principal component of all
obligations under any Synthetic Lease or the implied interest component of any
rent paid under any Synthetic Lease shall be made by the Borrower in accordance
with accepted financial practice and consistent with the terms of such
Synthetic Lease. All calculations made for the purposes of determining
compliance with this Credit Agreement shall (except as otherwise expressly
provided herein) be made by application of GAAP applied on a basis consistent
(except for changes which are immaterial and not adverse to the Lenders) with
the most recent annual or quarterly financial statements delivered pursuant to Section 7.1
(or, prior to the delivery of the first financial statements pursuant to Section 7.1,
consistent with the financial statements as at June 24, 2006), but, in any
event, unless otherwise expressly provided herein, after elimination for
minority interests; provided, however, if (a) the Credit
Parties shall object to determining such compliance on such basis at the time
of delivery of such financial statements due to any change in GAAP or the rules promulgated
with respect thereto or (b) the Administrative Agent or the Required
Lenders shall so object in writing within 30 days after delivery of such financial
statements, then such calculations shall be made on a basis consistent with the
most recent financial statements delivered by the Credit Parties to the Lenders
as to which no such objection shall have been made and the parties shall
negotiate in good faith to revise the applicable covenants to reflect such
changes in GAAP in a manner consistent with the Credit Agreement; provided,
further, however, that nothing contained in this Section 1.3
shall be deemed to restrict the ability of the Credit Parties to  make purchase accounting adjustments with
respect to any Permitted Acquisition during the four-quarter period immediately
succeeding the consummation of such transaction.


 


Notwithstanding the above or the terms of any
definition in Section 1.1, the parties hereto acknowledge and agree that,
for purposes of all calculations made under the financial covenant set forth in
Section 7.10 and the Consolidated Net Leverage Level and/or the
Consolidated Net Senior Secured Leverage Level (including without limitation
for purposes of the definitions of “Applicable Percentage” and “Pro Forma Basis”
set forth in Section 1.1), (i)


 


37

















 


after consummation of any
Asset Disposition or any Investment (or series of related Investments) made
pursuant to Section 8.6(p) to the extent consisting of the
contribution(s) or other transfer(s) of Property (other than cash) to
a Joint Venture for consideration less than the fair market value of such
Property, (A) income statement items (whether positive or negative) and
capital expenditures attributable to the Property disposed of or contributed or
otherwise transferred, as applicable, shall be excluded to the extent relating
to any period occurring prior to the date of such transaction and (B) Indebtedness
which is retired shall be excluded and deemed to have been retired as of the
first day of the applicable period and (ii) after consummation of any
Acquisition, (A) income statement items (whether positive or negative)
attributable to the Person or Property acquired shall, to the extent not
otherwise included in such income statement items for the Consolidated Parties
in accordance with GAAP or in accordance with any defined terms set forth in Section 1.1,
be included to the extent relating to any period applicable in such
calculations, (B) to the extent not retired in connection with such
Acquisition, Indebtedness of the Person or Property acquired shall be deemed to
have been incurred as of the first day of the applicable period and Indebtedness
which is retired shall be excluded and deemed to have been retired as of the
first day of the applicable period and (C) pro forma adjustments may be
included to the extent that such adjustments are consistent with the definition
of “Consolidated EBITDA” set forth in Section 1.1 and give effect to
events that are (x) directly attributable to such transaction, (y) expected
to have a continuing impact on the Consolidated Parties and (z) factually
supportable.


 


38














 


SECTION II


 


CREDIT
FACILITIES


 


2.1.   
REVOLVING LOANS


 


(a)   REVOLVING
COMMITMENT. Subject to the terms and conditions hereof and in reliance upon the
representations and warranties set forth herein, each Lender severally agrees
to make available to the Borrower such Lender’s Revolving Commitment Percentage
of revolving credit loans requested by the Borrower in Dollars (“REVOLVING
LOANS”) from time to time from the Closing Date until the Maturity Date, or
such earlier date as the Revolving Commitments shall have been terminated as
provided herein; provided, however, that the sum of the aggregate
outstanding principal amount of Revolving Loans shall not exceed ONE HUNDRED
TWENTY FIVE MILLION DOLLARS ($125,000,000) (as such aggregate maximum amount
may be reduced from time to time as provided in Section 3.4 or increased
from time to time as provided in Section 2.6, the “REVOLVING COMMITTED
AMOUNT”); provided, further, (A) with regard to each Lender
individually, such Lender’s outstanding Revolving Loans shall not exceed such
Lender’s Revolving Commitment Percentage of the Revolving Committed Amount, and
(B) the sum of the aggregate outstanding principal amount of Revolving
Loans plus LOC Obligations plus Swingline Loans shall not exceed
the Revolving Committed Amount. The initial advance of the Revolving Loans on
the Closing Date shall consist solely of Base Rate Loans. Thereafter, Revolving
Loans may consist of Base Rate Loans or Eurodollar Loans, or a combination
thereof, as the Borrower may request; provided, however, that no
more than 15 Eurodollar Loans shall be outstanding hereunder at any time (it
being understood that, for purposes hereof, Eurodollar Loans with different
Interest Periods shall be considered as separate Eurodollar Loans, even if they
begin on the same date, although borrowings, extensions and conversions may, in
accordance with the provisions hereof, be combined at the end of existing
Interest Periods to constitute a new Eurodollar Loan with a single Interest
Period). Revolving Loans hereunder may be repaid and reborrowed in accordance
with the provisions hereof.  All
Revolving Loans outstanding under the Existing Credit Agreement on the Closing
Date shall be deemed to remain outstanding to the Borrower hereunder on the
terms set forth herein.


 


(b)   REVOLVING LOAN
BORROWINGS.


 


(i)            NOTICE
OF BORROWING.  The Borrower shall request
a Revolving Loan borrowing by written notice (or telephonic notice promptly
confirmed in writing) to the Administrative Agent not later than 12:30 P.M.
(New York City time) on the Business Day prior to the date of the requested
borrowing in the case of Base Rate Loans, and on the third Business Day prior
to the date of the requested borrowing in the case of Eurodollar Loans. Each
such request for borrowing shall be irrevocable and shall specify (A) that
a Revolving Loan is requested, (B) the date of the requested borrowing
(which shall be a Business Day), (C) the aggregate principal amount to be
borrowed, and (D) whether the borrowing shall be comprised of Base Rate
Loans, Eurodollar Loans or a combination thereof, and if Eurodollar Loans are
requested, the Interest Period(s) therefor. If the Borrower shall fail to
specify in any such Notice of Borrowing (I) an 


 


39

















 


applicable Interest Period in the case of a Eurodollar Loan, then such
notice shall be deemed to be a request for an Interest Period of one month, or (II) the
type of Revolving Loan requested, then such notice shall be deemed to be a
request for a Base Rate Loan hereunder. The Administrative Agent shall give
notice to each affected Lender promptly upon receipt of each Notice of
Borrowing pursuant to this Section 2.1(b)(i), the contents thereof and
each such Lender’s share of any borrowing to be made pursuant thereto.


 


(ii)           MINIMUM
AMOUNTS.  Except for Revolving Loans made
for the purpose of reimbursing the Issuing Lender in respect of a drawing under
a Letter of Credit pursuant to Section 2.2(e), each Eurodollar Loan that
is a Revolving Loan shall be in a minimum aggregate principal amount of
$2,000,000 and each Base Rate Loan that is a Revolving Loan shall be in a
minimum aggregate principal amount of $1,000,000 and, in each case, integral
multiples of $100,000 in excess thereof (or the remaining amount of the Revolving
Committed Amount, if less).


 


(iii)          ADVANCES.  Each Lender will make its Revolving
Commitment Percentage of each Revolving Loan borrowing available to the
Administrative Agent for the account of the Borrower as specified in Section 3.15(a),
or in such other manner as the Administrative Agent may specify in writing, by
1:00 P.M. (New York City time) on the date specified in the applicable
Notice of Borrowing in Dollars and in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the
Borrower by the Administrative Agent either by disbursing such funds pursuant
to written instructions from the Borrower or by crediting the account of the
Borrower on the books of such office with the aggregate of the amounts made
available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent.


 


(c)   REPAYMENT. The
Borrower hereby promises to pay the principal amount of all outstanding
Revolving Loans in full on the Maturity Date, unless accelerated sooner
pursuant to Section 9.2.


 


(d)   INTEREST.  Subject to the provisions of Section 3.1,


 


(i)            BASE
RATE LOANS. During such periods as Revolving Loans shall be comprised in whole
or in part of Base Rate Loans, such Base Rate Loans shall bear interest at a
per annum rate equal to the Adjusted Base Rate.


 


(ii)           EURODOLLAR
LOANS. During such periods as Revolving Loans shall be comprised in whole or in
part of Eurodollar Loans, such Eurodollar Loans shall bear interest at a per
annum rate equal to the Adjusted Eurodollar Rate.


 


The Borrower hereby promises to pay interest
on Revolving Loans in arrears on each applicable Interest Payment Date (or at
such other times as may be specified herein).


 


(e)   REVOLVING NOTES.
The Borrower hereby agrees that, upon the request to the Administrative Agent
by any Lender, the Borrower will execute and deliver to such Lender a
promissory note evidencing the Revolving Loans of such Lender, substantially in
the form of 


 


40

















 


Exhibit 2.1(e), with appropriate insertions as to
date and principal amount (a “REVOLVING NOTE”).


 


2.2.   
LETTER OF CREDIT SUBFACILITY


 


(a)   ISSUANCE. Subject
to the terms and conditions hereof and in reliance upon the representations and
warranties set forth herein, the Issuing Lender agrees to issue, and each
Revolving Lender severally agrees to participate in the issuance by the Issuing
Lender of, standby and trade Letters of Credit in Dollars from time to time
from the Closing Date until the date five (5) days prior to the Maturity
Date as the Borrower may request, in a form acceptable to the Issuing Lender; provided,
however, that (i) the LOC Obligations outstanding shall not at any
time exceed FORTY MILLION DOLLARS ($40,000,000) (the “LOC COMMITTED AMOUNT”)
and (ii) the sum of the aggregate outstanding principal amount of
Revolving Loans plus LOC Obligations plus Swingline Loans shall
not at any time exceed the Revolving Committed Amount. No Letter of Credit
shall (x) have an original expiry date more than one year from the date of
issuance (provided that any such Letter of Credit may contain customary “evergreen”
provisions pursuant to which the expiry date is automatically extended by a
specific time period unless the Issuing Lender gives notice to the beneficiary
of such Letter of Credit at least a specified time period prior to the expiry
date then in effect) or (y) as originally issued or as extended, have an
expiry date extending beyond the date five (5) days prior to the Maturity
Date. The Issuing Lender shall not be required to issue any Letter of Credit
which would violate any Requirement of Law applicable to the Issuing Lender.
Each Letter of Credit shall comply with the related LOC Documents. The issuance
and expiry dates of each Letter of Credit shall be a Business Day.  For purposes of this Credit Agreement, the
Existing Letters of Credit shall be deemed to have been issued on the Closing
Date.


 


(b)   NOTICE AND
REPORTS. The request for the issuance of a Letter of Credit shall be submitted
by an Executive Officer of the Borrower to the Issuing Lender and the
Administrative Agent at least three (3) Business Days prior to the
requested date of issuance. The Issuing Lender will provide to the
Administrative Agent, at least quarterly and more frequently upon request, who
will in turn disseminate to each of the Lenders a detailed report specifying
the Letters of Credit which are then issued and outstanding and any activity
with respect thereto which may have occurred since the date of the prior
report, and including therein, among other things, the beneficiary, the face
amount and the expiry date, as well as any payment or expirations which may
have occurred.


 


(c)   PARTICIPATION.
Each Revolving Lender, upon issuance of a Letter of Credit (or, in the case of
each Existing Letter of Credit, on the Closing Date), shall be deemed to have
purchased without recourse a Participation Interest from the Issuing Lender in
such Letter of Credit and the obligations arising thereunder and any collateral
relating thereto, in each case in an amount equal to its pro rata share of the
obligations under such Letter of Credit (based on the respective Revolving
Commitment Percentages of the Revolving Lenders) and shall absolutely,
unconditionally and irrevocably assume and be obligated to pay to the Issuing
Lender and discharge when due, its pro rata share of the obligations arising
under such Letter of Credit. Without limiting the scope and nature of each
Revolving Lender’s Participation Interest in any Letter of Credit, to the
extent that the Issuing Lender has not been reimbursed as required hereunder or
under any such Letter of Credit, each such Revolving Lender shall pay to the 


 


41

















 


Administrative
Agent for the account of the Issuing Lender its pro rata share of such
unreimbursed drawing in same day funds on the day of notification by the
Administrative Agent of an unreimbursed drawing pursuant to the provisions of
subsection (d) below. The obligation of each Revolving Lender to so
reimburse the Issuing Lender shall be absolute and unconditional and shall not
be affected by the occurrence of a Default, an Event of Default or any other
occurrence or event. Any such reimbursement shall not relieve or otherwise
impair the obligation of the Borrower to reimburse the Issuing Lender under any
Letter of Credit, together with interest as hereinafter provided.


 


(d)   REIMBURSEMENT. In
the event of any drawing under any Letter of Credit, the Issuing Lender will
promptly notify the Borrower and the Administrative Agent. Unless the Borrower
shall immediately notify the Administrative Agent and the Issuing Lender that
the Borrower intends to otherwise reimburse the Issuing Lender for such
drawing, the Borrower shall be deemed to have requested that the Revolving
Lenders make a Revolving Loan in the amount of the drawing as provided in
subsection (e) below on the related Letter of Credit, the proceeds of
which will be used to satisfy the related reimbursement obligations. The
Borrower promises to reimburse the Issuing Lender on the day on which the
Issuing Lender notifies the Borrower of a drawing under any Letter of Credit
(either with the proceeds of a Revolving Loan obtained hereunder or deemed to
have been requested hereunder or otherwise) in same day funds provided such
notice is received by the Borrower from the Issuing Lender on or before 12:00
Noon (New York City time) (otherwise such payment shall be made on or before
12:00 Noon (New York City time) on the Business Day next succeeding the day
such notice is received). The Borrower hereby promises to pay to the Issuing
Lender interest on the unreimbursed amount of any drawing under a Letter of
Credit at a per annum rate equal to (i) for the first two (2) Business
Days following the date of the related drawing, the Adjusted Base Rate and (ii) thereafter,
the Adjusted Base Rate plus 2%. The Borrower’s reimbursement obligations
hereunder shall be absolute and unconditional under all circumstances
irrespective of any rights of setoff, counterclaim or defense to payment the
Borrower may claim or have against the Issuing Lender (other than that the
payment of such drawing by the Issuing Lender constituted gross negligence, bad
faith or willful misconduct on the part of the Issuing Lender), the
Administrative Agent, the Revolving Lenders, the beneficiary of the Letter of
Credit drawn upon or any other Person, including without limitation any defense
based on any failure of the Borrower or any other Credit Party to receive
consideration or the legality, validity, regularity or unenforceability of the
Letter of Credit. The Issuing Lender will promptly notify the Administrative
Agent, who shall in turn, promptly notify the other Revolving Lenders of the
amount of any unreimbursed drawing and each Revolving Lender shall promptly pay
to the Administrative Agent for the account of the Issuing Lender in Dollars
and in immediately available funds, the amount of such Revolving Lender’s pro
rata share of such unreimbursed drawing. Such payment shall be made on the day
such notice is received by such Revolving Lender from the Administrative Agent
if such notice is received at or before 2:00 P.M. (New York City time),
and otherwise such payment shall be made at or before 12:00 Noon (New York City
time) on the Business Day next succeeding the day such notice is received. If
such Revolving Lender does not pay such amount to the Administrative Agent for
the account of the Issuing Lender in full upon such request, such Revolving
Lender shall, on demand, pay to the Administrative Agent for the account of the
Issuing Lender interest on the unpaid amount during the period from the date of
such drawing until such Revolving Lender pays such amount to the Administrative
Agent for the account of the Issuing Lender in full at a rate per annum equal
to, if paid within two (2) Business Days of 


 


42

















 


the
date that such Revolving Lender is required to make payments of such amount
pursuant to the preceding sentence, the Federal Funds Rate and thereafter at a
rate equal to the Base Rate. Each Revolving Lender’s obligation to make such
payment to the Issuing Lender, and the right of the Issuing Lender to receive
the same, shall be absolute and unconditional, shall not be affected by any
circumstance whatsoever and without regard to the termination of this Credit
Agreement or the Commitments hereunder, the existence of a Default or Event of
Default or the acceleration of the obligations of the Borrower hereunder and
shall be made without any offset, abatement, withholding or reduction
whatsoever. Simultaneously with the making of each such payment by a Revolving
Lender to the Administrative Agent for the account of the Issuing Lender, such
Revolving Lender shall, automatically and without any further action on the
part of the Issuing Lender or such Revolving Lender, acquire a Participation
Interest in an amount equal to such payment (excluding the portion of such
payment constituting interest owing to the Issuing Lender) in the related unreimbursed
drawing portion of the LOC Obligation and in the interest thereon and in the
related LOC Documents, and shall have a claim against the Borrower with respect
thereto.


 


(e)           REPAYMENT WITH REVOLVING LOANS. On
any day on which the Borrower shall have requested, or been deemed to have
requested, a Revolving Loan advance to reimburse a drawing under a Letter of
Credit, the Administrative Agent shall give notice to the Revolving Lenders
that a Revolving Loan has been requested or deemed requested by the Borrower to
be made in connection with a drawing under a Letter of Credit, in which case a
Revolving Loan advance comprised of Base Rate Loans (or Eurodollar Loans to the
extent the Borrower has complied with the procedures of Section 2.1(b)(i) with
respect thereto) shall be immediately made to the Borrower by all Revolving
Lenders (notwithstanding any termination of the Commitments pursuant to Section 9.2)
pro rata based on the respective Revolving Commitment Percentages of the
Revolving Lenders (determined before giving effect to any termination of the
Commitments pursuant to Section 9.2) and the proceeds thereof shall be
paid directly to the Administrative Agent for the account of the Issuing Lender
for application to the respective LOC Obligations. Each such Revolving Lender
hereby irrevocably agrees to make its pro rata share of each such Revolving
Loan immediately upon any such request or deemed request in the amount, in the
manner and on the date specified in the preceding sentence notwithstanding (i) the
amount of such borrowing may not comply with the minimum amount for advances of
Revolving Loans otherwise required hereunder, (ii) whether any conditions
specified in Section 5.2 are then satisfied, (iii) whether a Default
or an Event of Default then exists, (iv) failure for any such request or
deemed request for Revolving Loan to be made by the time otherwise required
hereunder, (v) whether the date of such borrowing is a date on which
Revolving Loans are otherwise permitted to be made hereunder or (vi) any
termination of the Commitments relating thereto prior to or contemporaneously
with such borrowing. In the event that any Revolving Loan 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 or any other Credit Party), then each such Revolving
Lender hereby agrees that it shall forthwith purchase (as of the date such
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
Issuing Lender such Participation Interests in the outstanding LOC Obligations
as shall be necessary to cause each such Revolving Lender to share in such LOC
Obligations ratably (based upon the respective Revolving Commitment Percentages
of the Revolving Lenders (determined before giving effect to any termination of
the 


 


43

















 


Commitments
pursuant to Section 9.2)), provided that at the time any purchase
of Participation Interests pursuant to this sentence is actually made, the
purchasing Revolving Lender shall be required to pay to the Administrative
Agent for the account of the Issuing Lender, to the extent not paid to the
Issuing Lender by the Borrower in accordance with the terms of subsection (d) above,
interest on the principal amount of Participation Interests purchased for each
day from and including the day upon which such borrowing would otherwise have
occurred to but excluding the date of payment for such Participation Interests,
at the rate equal to, if paid within two (2) Business Days of the date of
the Revolving Loan advance, the Federal Funds Rate, and thereafter at a rate
equal to the Base Rate.


 


(f)    DESIGNATION OF
CONSOLIDATED PARTIES AS ACCOUNT PARTIES. Notwithstanding anything to the
contrary set forth in this Credit Agreement, including without limitation Section 2.2(a),
a Letter of Credit issued hereunder may contain a statement to the effect that
such Letter of Credit is issued for the account of any Subsidiary of the
Borrower, provided that notwithstanding such statement, the Borrower shall be
the actual account party for all purposes of this Credit Agreement for such
Letter of Credit and such statement shall not affect the Borrower’s
reimbursement obligations hereunder with respect to such Letter of Credit.


 


(g)   RENEWAL,
EXTENSION. The renewal or extension of any Letter of Credit shall, for purposes
hereof, be treated in all respects the same as the issuance of a new Letter of
Credit hereunder.


 


(h)   UNIFORM CUSTOMS
AND PRACTICES. The Issuing Lender may have the Letters of Credit be subject to
The Uniform Customs and Practice for Documentary Credits (the “UCP”) or the
International Standby Practices No. ISP1998 (the “ISP98”), in either case
as published as of the date of issue by the International Chamber of Commerce,
in which case the UCP or the ISP98, as applicable, may be incorporated therein
and deemed in all respects to be a part thereof.


 


(i)    INDEMNIFICATION;
NATURE OF ISSUING LENDER’S DUTIES.


 


(i)            In
addition to its other obligations under this Section 2.2, the Borrower
hereby agrees to pay, and protect, indemnify and save each Lender harmless from
and against, any and all claims, demands, liabilities, damages, actual losses,
costs, charges and reasonable expenses (including reasonable attorneys’ fees)
that such Lender may incur or be subject to as a consequence, direct or
indirect, of (A) the issuance of any Letter of Credit or (B) the
failure of such Lender to honor a drawing under a Letter of Credit as a result
of any act or omission, whether rightful or wrongful, of any present or future
de jure or de facto government or Governmental Authority (all such acts or
omissions, herein called “GOVERNMENT ACTS”).


 


(ii)           As
between the Borrower and the Lenders (including the Issuing Lender), the
Borrower shall assume all risks of the acts, omissions or misuse of any Letter
of Credit by the beneficiary thereof. No Lender (including the Issuing Lender)
shall be responsible: (A) for the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in
connection with the application 


 


44

















 


for and issuance of any Letter of Credit, even if it should in fact
prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (B) for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign any
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, that may prove to be invalid or ineffective for any reason; (C) for
errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise, whether or not they be
in cipher; (D) for any loss or delay in the transmission or otherwise of
any document required in order to make a drawing under a Letter of Credit or of
the proceeds thereof; and (E) for any consequences arising from causes
beyond the control of such Lender, including, without limitation, any
Government Acts. None of the above shall affect, impair, or prevent the vesting
of the Issuing Lender’s rights or powers hereunder.


 


(iii)          In
furtherance and extension and not in limitation of the specific provisions
hereinabove set forth, any action taken or omitted by any Lender (including the
Issuing Lender), under or in connection with any Letter of Credit or the
related certificates, if taken or omitted in good faith and without gross
negligence, shall not put such Lender under any resulting liability to the
Borrower or any other Credit Party. It is the intention of the parties that
this Credit Agreement shall be construed and applied to protect and indemnify
each Lender (including the Issuing Lender) against any and all risks involved
in the issuance of the Letters of Credit, all of which risks are hereby assumed
by the Borrower (on behalf of itself and each of the other Credit Parties),
including, without limitation, any and all Government Acts. No Lender
(including the Issuing Lender) shall, in any way, be liable for any failure by
such Lender or anyone else to pay any drawing under any Letter of Credit as a
result of any Government Acts or any other cause beyond the control of such
Lender.


 


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


 


(v)           Notwithstanding
anything to the contrary contained in this Section 2.2(i), no Credit Party
shall have any obligation to indemnify or reimburse any Lender (including the
Issuing Lender) in respect of any liability incurred by such Lender (A) arising
out of the gross negligence, bad faith or willful misconduct of such Lender, or
(B) caused by such Lender’s failure to pay under any Letter of Credit
after presentation to it of a request strictly complying with the terms and
conditions of such Letter of Credit unless such payment is prohibited by any
law, regulation, court order or decree.


 


(j)    RESPONSIBILITY
OF ISSUING LENDER. It is expressly understood and agreed that the obligations
of the Issuing Lender hereunder to the Lenders are only those expressly set
forth in this Credit Agreement and that the Issuing Lender shall be entitled to
assume that the conditions precedent set forth in Section 5.2 have been
satisfied unless it shall have acquired actual knowledge that any such
condition precedent has not been satisfied; 


 


45

















 


provided, however, that nothing set forth in
this Section 2.2 shall be deemed to prejudice the right of any Lender to
recover from the Issuing Lender any amounts made available by such Lender to
the Issuing Lender pursuant to this Section 2.2 in the event that it is
determined by a court of competent jurisdiction that the payment with respect
to a Letter of Credit constituted gross negligence, bad faith or willful
misconduct on the part of the Issuing Lender.


 


(k)   CONFLICT WITH LOC
DOCUMENTS. In the event of any conflict between this Credit Agreement and any
LOC Document (including any letter of credit application), this Credit
Agreement shall control.


 


2.3.   
SWINGLINE LOAN SUBFACILITY


 


(a)           SWINGLINE COMMITMENT. Subject to the
terms and conditions hereof and in reliance upon the representations and
warranties set forth herein, the Swingline Lender, in its individual capacity,
agrees to make certain revolving credit loans requested by the Borrower in
Dollars to the Borrower (each a “SWINGLINE LOAN” and, collectively, the “SWINGLINE
LOANS”) from time to time from the Closing Date until the Maturity Date for the
purposes hereinafter set forth; provided, however, (i) the
aggregate principal amount of Swingline Loans outstanding at any time shall not
exceed TWENTY MILLION DOLLARS ($20,000,000) (the “SWINGLINE COMMITTED AMOUNT”),
and (ii) the sum of the aggregate outstanding principal amount of
Revolving Loans plus LOC Obligations plus Swingline Loans shall
not exceed the Revolving Committed Amount. Swingline Loans hereunder shall be
made as Base Rate Loans or Quoted Rate Swingline Loans as the Borrower may
request in accordance with the provisions of this Section 2.3 and may be
repaid and reborrowed in accordance with the provisions hereof.


 


(b)           SWINGLINE LOAN ADVANCES.


 


(i)            NOTICES;
DISBURSEMENT. Whenever the Borrower desires a Swingline Loan advance hereunder
it shall give written notice from an Executive Officer of the Borrower (or
telephonic notice promptly confirmed in writing) to the Swingline Lender not
later than 1:00 P.M. (New York City time) on the Business Day of the
requested Swingline Loan advance. Each such notice shall be irrevocable and
shall specify (A) that a Swingline Loan advance is requested, (B) the
date of the requested Swingline Loan advance (which shall be a Business Day)
and (C) the principal amount of the Swingline Loan advance requested. Each
Swingline Loan shall be made as a Base Rate Loan or a Quoted Rate Swingline
Loan and shall have such maturity date as the Swingline Lender and the Borrower
shall agree upon receipt by the Swingline Lender of any such notice from the
Borrower. The Swingline Lender shall initiate the transfer of funds representing
the Swingline Loan advance to the Borrower by 3:00 P.M. (New York City
time) on the Business Day of the requested borrowing.


 


(ii)           MINIMUM
AMOUNTS. Each Swingline Loan advance shall be in integral multiples of $100,000
(or the remaining amount of the Swingline Committed Amount, if less).


 


46

















 


(iii)          REPAYMENT
OF SWINGLINE LOANS. The Borrower hereby promises to pay the outstanding
principal amount of each Swingline Loan on the earlier of (A) the Maturity
Date or (B) the first date after such Swingline Loan is made that is the
15th or the last day of a calendar month and is at
least three Business days after such Swingline Loan is made.  The Swingline Lender may, at any time, in its
sole discretion, by written notice to the Borrower and the Revolving Lenders,
demand repayment of its Swingline Loans by way of a Revolving Loan advance, in
which case the Borrower shall be deemed to have requested a Revolving Loan
advance comprised solely of Base Rate Loans in the amount of such Swingline
Loans; provided, however, that any such demand shall be deemed to
have been given one Business Day prior to the Maturity Date and on the date of
the occurrence of any Event of Default described in Section 9.1 and upon
acceleration of the indebtedness hereunder and the exercise of remedies in
accordance with the provisions of Section 9.2. Each Revolving Lender
hereby irrevocably agrees to make its pro rata share of each such Revolving
Loan in the amount, in the manner and on the date specified in the preceding
sentence notwithstanding (I) the amount of such borrowing may not comply
with the minimum amount for advances of Revolving Loans otherwise required
hereunder, (II) whether any conditions specified in Section 5.2 are
then satisfied, (III) whether a Default or an Event of Default then
exists, (IV) failure of any such request or deemed request for a Revolving
Loan to be made by the time otherwise required hereunder, (V) whether the
date of such borrowing is a date on which Revolving Loans are otherwise
permitted to be made hereunder or (VI) any termination of the Commitments
relating thereto prior to or contemporaneously with such borrowing.  In the event that any Revolving Loan 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 or any other Credit Party), then
each Revolving Lender hereby agrees that it shall forthwith purchase (as of the
date such 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 Participation Interests in the
outstanding Swingline Loans as shall be necessary to cause each such Revolving
Lender to share in such Swingline Loans ratably based upon its Revolving
Commitment Percentage of the Revolving Committed Amount (determined before
giving effect to any termination of the Commitments pursuant to Section 3.4),
provided that (A) 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 Interest is purchased and (B) at the time any
purchase of Participation Interests pursuant to this sentence is actually made,
the purchasing Revolving Lender shall be required to pay to the Swingline
Lender, to the extent not paid to the Swingline Lender by the Borrower in
accordance with the terms of subsection (c)(ii) below, interest on the
principal amount of Participation Interests purchased for each day from and
including the day upon which such borrowing would otherwise have occurred to
but excluding the date of payment for such Participation Interests, at the rate
equal to, if paid within two (2) Business Days of the date upon which such
borrowing would otherwise have occurred, the Federal Funds Rate, and thereafter
at a rate equal to the Adjusted Base Rate.


 


47

















 


(c)           INTEREST ON SWINGLINE LOANS.


 


(i)            RATE
OF INTEREST. Subject to the provisions of Section 3.1, each Swingline Loan
shall bear interest as follows:


 


(A)                              BASE RATE LOANS.
If such Swingline Loan is a Base Rate Loan, at a per annum rate equal to the
Adjusted Base Rate.


 


(B)                                QUOTED RATE
SWINGLINE LOANS. If such Swingline Loan is a Quoted Rate Swingline Loan, at a
per annum rate equal to the Quoted Rate applicable thereto.


 


(ii)           PAYMENT
OF INTEREST. The Borrower hereby promises to pay interest on Swingline Loans in
arrears on each applicable Interest Payment Date (or at such other times as may
be specified herein).


 


Notwithstanding
any other provision to the contrary set forth in this Credit Agreement, in the
event that the principal amount of any Quoted Rate Swingline Loan is not repaid
on the last day of the Interest Period for such Loan, then such Loan shall be
automatically converted into a Base Rate Loan at the end of such Interest
Period.


 


(d)           SWINGLINE NOTE. The Borrower hereby
agrees that, upon the request to the Administrative Agent by the Swingline
Lender, the Borrower will execute and deliver to the Swingline Lender a
promissory note evidencing the Swingline Loans of the Swingline Lender,
substantially in the form of Exhibit 2.3(d), with appropriate insertions
as to date and principal amount (a “SWINGLINE NOTE”).


 


2.4.   
[INTENTIONALLY DELETED]


 


2.5.   
TRANCHE B TERM LOAN.


 


(a)           TRANCHE B TERM COMMITMENT.  (i)  Subject to the terms and conditions
hereof (including paragraph (ii) below) and in reliance upon the
representations and warranties set forth herein, each Lender severally agrees
to make available to the Borrower on the Closing Date such Lender’s Tranche B
Term Loan Percentage of a term loan in Dollars (the “TRANCHE B TERM LOAN”) in
the aggregate principal amount of FOUR HUNDRED FIFTY MILLION DOLLARS
($450,000,000) (the “TRANCHE B TERM LOAN COMMITTED AMOUNT”).  The full principal amount of the Tranche B
Term Loan shall be disbursed on the Closing Date as a Base Rate Loan.
Thereafter, the Term Loan may consist of Base Rate Loans or Eurodollar Loans,
or a combination thereof, as the Borrower may request; provided, however,
that no more than 15 Eurodollar Loans shall be outstanding hereunder at any
time (it being understood that, for purposes hereof, Eurodollar Loans with
different Interest Periods shall be considered as separate Eurodollar Loans,
even if they begin on the same date, although borrowings, extensions and
conversions may, in accordance with the provisions hereof, be combined at the
end of existing Interest Periods to constitute a new Eurodollar Loan with a
single Interest Period). Amounts repaid or prepaid on the Tranche B Term Loan
may not be reborrowed.


 


48

















 


(ii)           Any
Continuing Tranche B Term Lender shall be deemed to continue such Lender’s
Continuing Tranche B Term Loans to the extent requested by the Borrower in
accordance with Section 2.5(b).  On
the Closing Date, such Lender’s Continuing Tranche B Term Loans shall, to the
extent requested by the Borrower, be continued for all purposes of this Credit
Agreement as Tranche B Term Loans, and the Administrative Agent shall record in
the Register the aggregate amounts of Continuing Tranche B Term Loans continued
as Tranche B Term Loans.  From and after
the Closing Date, Continuing Tranche B Term Loans shall constitute Tranche B
Term Loans for all purposes of this Credit Agreement.


 


(b)           BORROWING PROCEDURES. The Borrower
shall submit an appropriate Notice of Borrowing for the Tranche B Term Loan to the
Administrative Agent not later than 11:00 A.M. (New York City time) on the
Closing Date. Such Notice of Borrowing shall be irrevocable and shall specify (i) that
the funding of the Tranche B Term Loan is requested and (ii) that the
funding of the Tranche B Term Loan shall be comprised of Base Rate Loans. Each
Lender shall make its Tranche B Term Loan Percentage of the Tranche B Term Loan
available to the Administrative Agent for the account of the Borrower at the
office of the Administrative Agent specified in Schedule 2.1(a), or at
such other office as the Administrative Agent may designate in writing, by 1:00 P.M.
(New York City time) on the Closing Date in Dollars and in funds immediately
available to the Administrative Agent. 
Each Continuing Tranche B Term Lender’s Continuing Tranche B Term Loans
shall be continued as Tranche B Term Loans hereunder to the extent requested by
the Borrower.


 


(c)           MINIMUM AMOUNTS. Each Eurodollar Loan
or Base Rate Loan that is part of the Tranche B Term Loan shall be in an
aggregate principal amount that is not less than $2,000,000 and integral
multiples of $100,000 (or the then remaining principal balance of the Tranche B
Term Loan).


 


(d)           REPAYMENT OF TRANCHE B TERM LOAN. The
Borrower hereby promises to pay the outstanding principal amount of the Tranche
B Term Loan in twenty-four (24) consecutive quarterly installments as follows
(as such installments may hereafter be adjusted as a result of prepayments made
pursuant to Section 3.3), unless accelerated sooner pursuant to Section 9.2:


 


49














 


	
  Tranche B Principal Amortization

  Payment Dates

  	
   

  	
  Tranche B Term Loan

  Principal Amortization

  Payment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  June 30, 2007, September 30,
  2007, December 31, 2007, March 31, 2008, June 30, 2008,
  September 30, 2008, December 31, 2008, March 31, 2009,
  June 30, 2009, September 30, 2009, December 31, 2009,
  March 31, 2010, June 30, 2010, September 30, 2010,
  December 31, 2010, March 31, 2011, June 30, 2011,
  September 30, 2011, December 31, 2011, March 31, 2012,
  June 30, 2012, September 30, 2012, and December 31, 2012

  	
   

  	
  $

  	
  1,125,000

  	
   

  
	
  Maturity Date

  	
   

  	
  $

  	
  424,125,000

  	
   

  



 


(e)           INTEREST. Subject to the provisions
of Section 3.1, the outstanding Tranche B Term Loan shall bear interest at
a per annum rate equal to:


 


(i)            BASE
RATE LOANS. During such periods as the Tranche B Term Loan shall be comprised
in whole or in part of Base Rate Loans, such Base Rate Loans shall bear
interest at a per annum rate equal to the Adjusted Base Rate.


 


(ii)           EURODOLLAR
LOANS. During such periods as the Tranche B Term Loan shall be comprised in
whole or in part of Eurodollar Loans, such Eurodollar Loans shall bear interest
at a per annum rate equal to the Adjusted Eurodollar Rate.


 


The Borrower hereby promises to pay interest
on the Tranche B Term Loan in arrears on each applicable Interest Payment Date
(or at such other times as may be specified herein).


 


(f)            TRANCHE B TERM NOTES. The Borrower
hereby agrees that, upon the request to the Administrative Agent by any Lender,
the Borrower will execute and deliver to such Lender a promissory note
evidencing the Tranche B Term Loan of such Lender, substantially in the form of
Exhibit 2.5(f), with appropriate insertions as to date and
principal amount (a “TRANCHE B TERM NOTE”).


 


2.6.    INCREMENTAL TERM LOANS;
REVOLVING COMMITMENT INCREASE.


 


(a)           The Borrower may at any time or from
time to time after the Closing Date, by notice to the Administrative Agent
(whereupon the Administrative Agent shall promptly deliver a copy to each of
the Lenders) request (i) additional Tranche B Term Loans or one or more
additional tranches of term loans (the “INCREMENTAL TERM LOANS”) or (ii) one
or more increases in the amount of the Revolving Committed Amount (each such
increase, a “REVOLVING COMMITMENT INCREASE”), provided
that, (i) no Default or Event of Default shall exist and be continuing at
the time that any such Incremental Term Loan is made or any such Revolving
Commitment Increase becomes effective (and after giving effect thereto), and (ii) the
Consolidated Net Senior Secured Leverage Ratio of the Borrower determined on a
Pro Forma Basis as of the last day of the most recently ended fiscal quarter of
the Borrower as if such Incremental Term Loans had been outstanding on the last
day of such fiscal quarter shall be


 


50

















 


equal to or less than the then applicable Consolidated
Net Senior Secured Leverage Ratio.  Each
tranche of Incremental Term Loans and each Revolving Commitment Increase shall
be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if
such amount represents all remaining availability under the limit set forth in
the next sentence).  Notwithstanding
anything to the contrary herein, the aggregate amount of the Incremental Term
Loans and the Revolving Commitment Increases shall not exceed
$125,000,000.  The Incremental Term Loans
and the Revolving Commitment Increases (a) shall rank pari passu
in right of payment and of collateral security with the Tranche B Term Loan and
the Revolving Loans and (b) shall not mature earlier than the Maturity Date
with respect to the Tranche B Term Loan (but may have nominal amortization
prior to such date) and shall have an average life to maturity no shorter than
the remaining average life to maturity of the Tranche B Term Loan and the
Maturity Date with respect to the Revolving Loans (in the case of Revolving
Commitment Increases) and (c) except as set forth above, shall be treated
substantially the same as (and in any event no more favorably than) the Term Loans
and the Revolving Loans(in each case, including with respect to mandatory and
voluntary prepayments), provided that (i) the terms and conditions applicable
to Incremental Term Loans maturing after the Maturity Date with respect to the
Tranche B Term Loans may provide for material additional or different financial
or other covenants or prepayment requirements applicable only during periods
after the Maturity Date with respect to the Tranche B Term Loans and (ii) the
Incremental Term Loans may be priced differently than the Term Loans.  Each notice from the Borrower pursuant to
this Section 2.6 shall set forth the requested amount and proposed terms of the
relevant Incremental Term Loans or Revolving Commitment Increases.  Incremental Term Loans may be made, and
Revolving Commitment Increases may be provided, by any existing Lender or by
any other bank or other financial institution (any such other bank or other
financial institution being called an “ADDITIONAL LENDER”), provided that the Administrative Agent and the Borrower
shall have consented (not to be unreasonably withheld) to such Lender’s or
Additional Lender’s making such Incremental Term Loans or providing such
Revolving Commitment Increases if such consent would be required under Section
11.3(b) for an assignment of Tranche B Term Loans or Revolving Commitments to
such Lender or Additional Lender. Commitments in respect of Incremental Term
Loans and Revolving Commitment Increases shall become Commitments (or in the
case of a Revolving Commitment Increase to be provided by an existing Revolving
Lender, an increase in such Lender’s applicable Revolving Commitment) under
this Agreement pursuant to an amendment (an “INCREMENTAL AMENDMENT”) to this
Agreement and, as appropriate, the other Credit Documents, executed by the
Parent, the Borrower, each Lender agreeing to provide such Commitment, if any,
each Additional Lender, if any, and the Administrative Agent.  The Incremental Amendment may, without the
consent of any other Lenders, effect such amendments to this Agreement and the
other Credit Documents as may be necessary or appropriate, in the reasonable
opinion of the Administrative Agent, to effect the provisions of this Section
2.6.  The effectiveness of any Incremental
Amendment shall be subject to the satisfaction on the date thereof (each, an
“INCREMENTAL FACILITY CLOSING DATE”) of such conditions as the parties thereto
shall agree.  The Borrower may use the
proceeds of the Incremental Term Loans and Revolving Commitment Increases for
any purpose not prohibited by this Credit Agreement.  No Lender shall be obligated to provide any
Incremental Term Loans or Revolving Commitment Increases unless it so
agrees.  Upon each increase in the
Revolving Commitments pursuant to this Section 2.6, (a) each Revolving Lender
immediately prior to such increase will automatically and


 


51

















 


without further act be deemed to have assigned to each
Lender providing a portion of the Revolving Commitment Increase (each a
“REVOLVING COMMITMENT INCREASE LENDER”) in respect of such increase, and each
such Revolving Commitment Increase Lender will automatically and without
further act be deemed to have assumed a portion of such Revolving Lender’s
participations hereunder in outstanding Letters of Credit and Swing Line Loans
such that, after giving effect to each such deemed assignment and assumption of
participations, the percentage of the aggregate outstanding
(i) participations hereunder in Letters of Credit and (ii) participations
hereunder in Swing Line Loans held by each Revolving Lender (including each
such Revolving Commitment Increase Lender) will equal the percentage of the
aggregate Revolving Commitments of all Revolving Lenders represented by such
Revolving Lender’s Revolving Commitment and (b) if, on the date of such
increase, there are any Revolving Loans outstanding, such Revolving Loans shall
on or prior to the effectiveness of such Revolving Commitment Increase be
prepaid from the proceeds of additional Revolving Loans made hereunder
(reflecting such increase in Revolving Commitments), which prepayment shall be
accompanied by accrued interest on the Revolving Loans being prepaid and any
costs incurred by any Lender in accordance with Section 3.12.  The Administrative Agent and the Lenders
hereby agree that the minimum borrowing, pro rata borrowing
and pro rata payment requirements contained elsewhere in
this Credit Agreement shall not apply to the transactions effected pursuant to
this Section.  Each of the parties hereto
hereby agrees that, upon the effectiveness of any Incremental Amendment, this
Credit Agreement shall be amended to the extent (but only to the extent)
necessary to reflect the existence and terms of the Incremental Term Loans
and/or Revolving Commitment Increase evidenced thereby as provided for in
Section 11.6.  Any such deemed
amendment may be memorialized in writing by the Administrative Agent with the
Borrower’s consent (not to be unreasonably withheld) and furnished to the other
parties hereto.


 


(b)           This Section 2.6 shall supersede
any provisions in Section 2.5 or 11.6 to the contrary.


 


2.7.   
REDESIGNATION OF EXISTING LOANS AND COMMITMENTS.  As of the Closing Date, the Existing Loans
and Revolving Commitments (as defined in the Existing Credit Agreement)
immediately prior to the Closing Date shall automatically, without any action
on the part of any Person, be redesignated for all purposes of this Credit
Agreement and the other Credit Documents as follows: (a) $125,000,000 of
Revolving Commitments; and (b) $450,000,000 principal amount of Tranche B
Term Loans, and for the avoidance of doubt, the parties hereto acknowledge that
the Loans outstanding hereunder on the Closing Date were not made in repayment
of all or any portion of any Existing Loan. 
The Administrative Agent shall modify the Register accordingly to
provide for such redesignation of the Existing Loans and Revolving Commitments
(as defined in the Existing Credit Agreement) among the Lenders according to
their respective proportionate shares thereof, as applicable.  Each Exiting Lender shall be deemed, by its
acceptance of any such payment, to have assigned and sold its Commitments and
Loans under the Existing Credit Agreement to the Lenders in exchange for
payment on the Closing Date of obligations owed to it under the Existing Credit
Agreement.


 


52

















 


SECTION III


 


OTHER
PROVISIONS RELATING TO CREDIT FACILITIES


 


3.1.   
DEFAULT RATE.


 


Upon the
occurrence, and during the continuance, of a default in the payment of any
amount hereunder or under any of the other Credit Documents, such overdue
amount shall bear interest, payable on demand, at a per annum rate 2% greater
than the rate which would otherwise be applicable (or if no rate is applicable,
whether in respect of interest, fees or other amounts, then the Adjusted Base
Rate plus 2%).


 


3.2.   
EXTENSION AND CONVERSION.


 


The Borrower shall
have the option, on any Business Day, to extend existing Loans into a
subsequent permissible Interest Period or to convert Loans into Loans of
another interest rate type; provided, however, that (i) except
as provided in Section 3.8, Eurodollar Loans may be converted into Base
Rate Loans or extended as Eurodollar Loans for new Interest Periods only on the
last day of the Interest Period applicable thereto unless the Borrower makes
payment of any amounts then due and owing pursuant to Section 3.12, (ii) Loans
extended as, or converted into, Eurodollar Loans shall be subject to the terms
of the definition of “INTEREST PERIOD” set forth in Section 1.1 and shall
be in such minimum amounts as provided in, with respect to Revolving Loans, Section 2.1(b)(ii),
or, with respect to the Tranche B Term Loan, Section 2.5(c), (iii) no
more than 15 Eurodollar Loans shall be outstanding hereunder at any time (it
being understood that, for purposes hereof, Eurodollar Loans with different
Interest Periods shall be considered as separate Eurodollar Loans, even if they
begin on the same date, although borrowings, extensions and conversions may, in
accordance with the provisions hereof, be combined at the end of existing
Interest Periods to constitute a new Eurodollar Loan with a single Interest
Period), (iv) any request for extension or conversion of a Eurodollar Loan
which shall fail to specify an Interest Period shall be deemed to be a request
for an Interest Period of one month and (v) Swingline Loans may not be
extended or converted pursuant to this Section 3.2. Each such extension or
conversion shall be effected by the Borrower by giving a Notice of
Extension/Conversion (or telephonic notice promptly confirmed in writing) to
the office of the Administrative Agent specified in Schedule 2.1(a), or
at such other office as the Administrative Agent may designate in writing,
prior to 11:00 A.M. (New York City time) on the Business Day of, in the
case of the conversion of a Eurodollar Loan into a Base Rate Loan, and on the
third Business Day prior to, in the case of the extension of a Eurodollar Loan
as, or conversion of a Base Rate Loan into, a Eurodollar Loan, the date of the
proposed extension or conversion, specifying the date of the proposed extension
or conversion, the Loans to be so extended or converted, the types of Loans
into which such Loans are to be converted and, if appropriate, the applicable
Interest Periods with respect thereto. In the event the Borrower fails to
request extension or conversion of any Eurodollar Loan in accordance with this Section 3.2,
or any such conversion or extension is not permitted or required by this Section 3.2,
then such Eurodollar Loan shall be automatically converted into a Base Rate
Loan at the end of the Interest Period applicable thereto. The Administrative
Agent shall give each Lender notice as promptly as practicable of any such
proposed extension or conversion affecting any Loan.


 


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3.3.    PREPAYMENTS


 


(a)           VOLUNTARY PREPAYMENTS


 


The
Borrower shall have the right to prepay Loans in whole or in part from time to
time upon providing at least three (3) Business Days’ notice to the
Administrative Agent (which notice may be waived by the Administrative Agent)
other than in connection with Revolving Loans; provided, however,
that each partial prepayment of Loans (other than Swingline Loans) shall be in
a minimum principal amount of $2,000,000 (or $500,000 in the case of Revolving
Loans) and integral multiples of $100,000 in excess thereof (or the then
remaining principal balance of the Revolving Loans or the Tranche B Term Loan,
as applicable, if less).  Subject to the
foregoing terms, amounts prepaid under this Section 3.3(a) shall be
applied as the Borrower may elect; provided that if the Borrower shall
fail to specify with respect to any voluntary prepayment, such voluntary
prepayment shall be applied first to Swingline Loans, then Revolving Loans and
then to the Tranche B Term Loan (and applied to the remaining Principal
Amortization Payments ratably), in each case first to Base Rate Loans and then
to Eurodollar Loans in direct order of Interest Period maturities. All
prepayments under this Section 3.3(a) shall be subject to Section 3.12,
but otherwise without premium or penalty, and, in the case of Eurodollar Loans,
shall be accompanied by interest on the principal amount prepaid through the
date of prepayment.


 


(b)           MANDATORY PREPAYMENTS


 


(i)            (A) 
REVOLVING COMMITTED AMOUNT. If at any time, the sum of the aggregate
outstanding principal amount of Revolving Loans plus LOC Obligations plus
Swingline Loans shall exceed the Revolving Committed Amount, the Borrower
immediately shall prepay the Revolving Loans and (after all Revolving Loans
have been repaid) cash collateralize the LOC Obligations, in an amount
sufficient to eliminate such excess.


 


(B)  LOC COMMITTED AMOUNT. If at any time, the sum of the aggregate
principal amount of LOC Obligations shall exceed the LOC Committed Amount, the
Borrower immediately shall cash collateralize the LOC Obligations in an amount
sufficient to eliminate such excess.


 


(ii)           EXCESS
CASH FLOW. Within 105 days after the end of each fiscal year (commencing with
the fiscal year ending on or about June 30, 2008), the Borrower shall
prepay the Loans in an amount equal to (A) 50% (if the Consolidated Net
Leverage Ratio as of the end of such fiscal year is equal to or greater than
4.00 to 1.00), 25% (if the Consolidated Net Leverage Ratio as of the end of
such fiscal year is less than 4.00 to 1.00 but equal to or greater than 3.50 to
1.00) or 0% (if the Consolidated Net Leverage Ratio as of the end of such
fiscal year is less than 3.50 to 1.00) 
of Excess Cash Flow for such fiscal year minus (B) the
amount of any voluntary prepayments made during such fiscal year of the Tranche
B Term Loan or (to the extent accompanied by a permanent reduction in the
Revolving Committed Amount) the Revolving Loans (such prepayment to be applied
as set forth in clause (vi) below).


 


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(iii)          ASSET
DISPOSITIONS.  Immediately upon the
occurrence of any Asset Disposition Prepayment Event, the Borrower shall prepay
the Loans in an aggregate amount equal to 100% of the Net Cash Proceeds of such
Asset Disposition not applied (or caused to be applied) by the Credit Parties
during the related Application Period to make Eligible Reinvestments (in each
case, such prepayment to be applied as set forth in clause (vi) below).


 


(A)          INVOLUNTARY
DISPOSITIONS.  Immediately upon the
occurrence of an Involuntary Disposition Prepayment Event, the Borrower shall
prepay the Loans in an aggregate amount equal to 100% of the Excess Proceeds
(such prepayment to be applied as set forth in clause (vi) below).


 


(iv)          DEBT
ISSUANCES. Immediately upon the occurrence of a Debt Issuance Prepayment Event,
the Borrower shall prepay the Loans in an aggregate amount equal to 100% of the
Net Cash Proceeds of the related Debt Issuance (such prepayment to be applied
as set forth in clause (vi) below).


 


(v)           [INTENTIONALLY
OMITTED].


 


(vi)          APPLICATION
OF MANDATORY PREPAYMENTS.  All amounts
required to be paid pursuant to this Section 3.3(b) shall be applied
as follows: (A) with respect to all amounts prepaid pursuant to Section 3.3(b)(i)(A),
to Revolving Loans and (after all Revolving Loans have been repaid) to a cash
collateral account in respect of LOC Obligations, (B) with respect to all
amounts prepaid pursuant to Section 3.3(b)(i)(B), to a cash collateral
account in respect of LOC Obligations, (C) with respect to all amounts
prepaid pursuant to Section 3.3(b)(ii), as the Borrower may elect, and (D) with
respect to all amounts prepaid pursuant to Sections 3.3(b)(iii) and
3.3(b)(iv), FIRST, to the Tranche B Term Loans (with such prepayment being
applied ratably to the remaining Principal Amortization Payments thereof) and
SECOND, to the Revolving Loans and (after all Revolving Loans have been repaid)
to a cash collateral account in respect of LOC Obligations (without any
reduction in the Revolving Committed Amount). 
Within the parameters of the applications set forth above, prepayments
shall be applied first to Base Rate Loans and then to Eurodollar Loans in
direct order of Interest Period maturities. All prepayments under this Section 3.3(b) shall
be subject to Section 3.12, but otherwise without premium or penalty, and
shall, in the case of Eurodollar Loans, be accompanied by interest on the
principal amount prepaid through the date of prepayment.


 


(vii)         PREPAYMENT
ACCOUNT.  If the Borrower is required to
make a mandatory prepayment of Eurodollar Loans under this Section 3.3(b),
the Borrower shall have the right, in lieu of making such prepayment in full, to
deposit an amount equal to such mandatory prepayment with the Administrative
Agent in a cash collateral account maintained (pursuant to documentation
reasonably satisfactory to the Administrative Agent) by and in the sole
dominion and control of the Administrative Agent. Any amounts so deposited
shall be held by the Administrative Agent as collateral for the prepayment of
such Eurodollar Loans and shall be applied to the prepayment of the applicable
Eurodollar Loans at the end of the current Interest Periods applicable thereto


 


55

















 


or, subject to the terms of Section 3.12, as earlier requested in
writing by the Borrower. At the request of the Borrower, amounts so deposited
shall be invested by the Administrative Agent in Cash Equivalents maturing
prior to the date or dates on which it is anticipated that such amounts will be
applied to prepay such Eurodollar Loans; any interest earned on such Cash
Equivalents will be for the account of the Borrower and the Borrower will
deposit with the Administrative Agent the amount of any loss on any such Cash
Equivalents to the extent necessary in order that the amount of the prepayment
to be made with the deposited amounts may not be reduced.


 


(viii)        NOTICE
OF MANDATORY PREPAYMENTS. The Borrower agrees to use reasonable efforts to
notify the Administrative Agent of any mandatory prepayments of the Loans
required to be made pursuant to this Section 3.3(b).


 


3.4.    TERMINATION AND REDUCTION OF
REVOLVING COMMITTED AMOUNT.


 


(a)           VOLUNTARY REDUCTIONS. The Borrower
may from time to time permanently reduce or terminate the Revolving Committed
Amount in whole or in part (in minimum aggregate amounts of $2,500,000 or in
integral multiples of $100,000 in excess thereof (or, if less, the full
remaining amount of the then applicable Revolving Committed Amount)) upon five
Business Days’ prior written notice to the Administrative Agent; provided,
however, no such termination or reduction shall be made which would
cause the sum of the aggregate outstanding principal amount of Revolving Loans plus
LOC Obligations plus Swingline Loans to exceed the Revolving Committed
Amount, unless, concurrently with such termination or reduction, the Revolving
Loans are repaid to the extent necessary to eliminate such excess. The
Administrative Agent shall promptly notify each affected Lender of receipt by
the Administrative Agent of any notice from the Borrower pursuant to this Section 3.4(a).


 


(b)           TERM LOAN COMMITMENTS.  The Tranche B Term Loan Commitment of each
Lender, if any, shall automatically terminate at such time as such Lender shall
have made available to the Borrower such Lender’s share of the Tranche B Term
Loan.


 


(c)           MANDATORY REDUCTIONS. The Revolving
Committed Amount and the Swingline Committed Amount automatically shall be
permanently reduced from time to time in accordance with the terms of Section 3.3(b)(vi).


 


(d)           MATURITY DATE. Unless terminated
sooner pursuant to Section 3.4(a) or Section 9.2, the Revolving
Commitments of the Lenders and the LOC Commitment of the Issuing Lender shall
automatically terminate on the Maturity Date.


 


(e)           GENERAL. The Borrower shall pay to
the Administrative Agent for the account of the Lenders (except to the extent
that any Lender was a Defaulting Lender during the applicable period in which
such fee accrued) in accordance with the terms of Section 3.5(a), on the
date of each termination or reduction of the Revolving Committed Amount, the
Unused Fee accrued through the date of such termination or reduction on the
amount of the Revolving Committed Amount so terminated or reduced.


 


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3.5.   
FEES.


 


(a)           UNUSED FEE. In consideration of the
Revolving Commitments of the Lenders hereunder, the Borrower hereby promises to
pay to the Administrative Agent for the account of each Lender (except to the
extent that any Lender was a Defaulting Lender during the applicable period in
which such fee accrued) a fee (the “UNUSED FEE”) on the Unused Revolving
Committed Amount computed at a per annum rate for each day during the
applicable Unused Fee Calculation Period (hereinafter defined) at a rate equal
to the Applicable Percentage in effect from time to time. The Unused Fee shall
commence to accrue on the Closing Date and shall be due and payable in arrears
on the last Business Day of each March, June, September and December (and
on any date that the Revolving Committed Amount is reduced pursuant to Section 3.4(a) and
on the Maturity Date) for the immediately preceding quarter (or portion
thereof) (each such quarter or portion thereof for which the Unused Fee is
payable hereunder being herein referred to as an “UNUSED FEE CALCULATION
PERIOD”), beginning with the first of such dates to occur after the Closing
Date.


 


(b)           LETTER OF CREDIT FEES


 


(i)            STANDBY
LETTER OF CREDIT ISSUANCE FEE.  In
consideration of the issuance of standby Letters of Credit hereunder, the
Borrower hereby promises to pay to the Administrative Agent for the account of
each Lender (except to the extent that any Lender was a Defaulting Lender
during the applicable period in which such fee accrued) a fee (the “STANDBY
LETTER OF CREDIT FEE”) on such Lender’s Revolving Commitment Percentage of the
average daily maximum amount available to be drawn under each such standby Letter
of Credit computed at a per annum rate for each day from the date of issuance
to the date of expiration equal to the Applicable Percentage. The Standby
Letter of Credit Fee will be payable quarterly in arrears on the last Business
Day of each March, June, September and December for the immediately
preceding quarter (or a portion thereof) and on the Maturity Date for the
Revolving Commitments.


 


(ii)           TRADE
LETTER OF CREDIT DRAWING FEE. In consideration of the issuance of trade Letters
of Credit hereunder, the Borrower hereby promises to pay to the Administrative
Agent for the account of each Lender (except to the extent that any Lender was
a Defaulting Lender during the applicable period in which such fee accrued) a
fee (the “TRADE LETTER OF CREDIT FEE”) on such Lender’s Revolving Commitment
Percentage of the average daily maximum amount available to be drawn under each
such trade Letter of Credit computed at a per annum rate for each day from the
date of issuance to the date of expiration equal to 1.25%.  The Trade Letter of Credit Fee will be
payable quarterly in arrears on the last Business Day of each March, June, September and
December for the immediately preceding quarter (or a portion thereof) and
on the Maturity Date for the Revolving Commitments.


 


(iii)          ISSUING
LENDER FEES. In addition to the Standby Letter of Credit Fee payable pursuant
to clause (i) above and the Trade Letter of Credit Fee payable pursuant to
clause (ii) above, the Borrower hereby promises to pay to the
Administrative Agent for the account of the Issuing Lender without sharing by
the other Lenders (i) a letter of credit fronting fee of 0.125% on the
average daily maximum


 


57

















 


amount available to be drawn under each Letter of Credit computed at a
per annum rate for each day from the date of issuance to the date of expiration
(which fronting fee shall be payable quarterly in arrears on the last Business
Day of each March, June, September and December for the immediately
preceding quarter (or a portion thereof)) and on the Maturity Date for the
Revolving Commitments and (ii) the customary charges from time to time of
the Issuing Lender with respect to the issuance, amendment, transfer,
administration, cancellation and conversion of, and drawings under, such
Letters of Credit.


 


(c)           ADMINISTRATIVE AGENT’S FEES. The
Borrower hereby (i) absolutely accepts and assumes all of the duties,
obligations and liabilities of the Sponsor in, to and under the Administrative
Agent’s Fee Letter to the same extent as if the Borrower had executed the
Administrative Agent’s Fee Letter and (ii) promises to pay to the
Administrative Agent, for its own account and for the account of JPMorgan
Securities Inc., as applicable, the fees referred to in the Administrative
Agent’s Fee Letter.


 


3.6.   
CAPITAL ADEQUACY.


 


(a)           If any Lender has determined, after
the date hereof, that the adoption or the becoming effective of, or any change
in, or any change by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof in the
interpretation or administration of, any applicable law, rule or
regulation regarding capital adequacy, or compliance by such Lender with any
request or directive regarding capital adequacy (whether or not having the
force of law) of any such authority, central bank or comparable agency, has or
would have the effect of reducing the rate of return on such Lender’s capital
or assets as a consequence of its commitments or obligations hereunder to a
level below that which such Lender could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration such Lender’s
policies with respect to capital adequacy) by an amount deemed by such Lender
to be material, then, upon notice from such Lender through the Administrative
Agent to the Borrower setting forth in reasonable detail the charge and the
calculation of such reduced rate of return to the Borrower, the Borrower shall
be obligated to pay to such Lender such additional amount or amounts as will
compensate such Lender for such reduction to the extent that such Lender
reasonably determines that such additional amount is allocable to the existence
of such Lender’s commitments or obligations hereunder. Each determination by
any such Lender of amounts owing under this Section shall, absent
demonstrable error, be conclusive and binding on the parties hereto.


 


(b)           The Borrower shall not be required to
compensate a Lender pursuant to this Section 3.6 for any additional amounts
incurred more than 180 days prior to the date that such Lender notifies the
Borrower of the change of law giving rise to such additional amounts and of
such Lender’s intention to claim compensation therefor; provided that,
if the change of law giving rise to such additional amounts is retroactive,
then such 180-day period referred to above shall be extended to include the
period of retroactive effect thereof.


 


3.7.   
LIMITATION ON EURODOLLAR LOANS.  If on or
prior to the first day of any Interest Period for any Eurodollar Loan:


 


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(a)           the Administrative Agent determines
(which determination shall be conclusive) that by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period; or


 


(b)           the Required Lenders determine (which
determination shall be conclusive) and notify the Administrative Agent that the
Eurodollar Rate will not adequately and fairly reflect the cost to the Lenders
of funding Eurodollar Loans for such Interest Period;


 


then the Administrative Agent shall give the
Borrower prompt notice thereof, and so long as such condition remains in
effect, the Lenders shall be under no obligation to make additional Eurodollar
Loans, Continue Eurodollar Loans, or to Convert Base Rate Loans into Eurodollar
Loans and the Borrower shall, on the last day(s) of the then current
Interest Period(s) for the outstanding Eurodollar Loans, either prepay
such Eurodollar Loans or Convert such Eurodollar Loans into Base Rate Loans in
accordance with the terms of this Credit Agreement. The Administrative Agent or
the Required Lenders, as the case may be, will withdraw such determination
pursuant to this Section promptly as circumstances allow.


 


3.8.   
ILLEGALITY.


 


Notwithstanding
any other provision of this Credit Agreement, in the event that it becomes
unlawful for any Lender or its Applicable Lending Office to make, maintain, or
fund Eurodollar Loans hereunder, then such Lender shall promptly notify the
Borrower thereof and such Lender’s obligation to make or Continue Eurodollar
Loans and to Convert Base Rate Loans into Eurodollar Loans shall be suspended
until such time as such Lender may again make, maintain, and fund Eurodollar
Loans (in which case the provisions of Section 3.10 shall be applicable).
Each Lender will designate a different Applicable Lending Office if such
designation will permit such Lender to continue to make, maintain, or fund
Eurodollar Loans hereunder and will not, in the judgment of such Lender, be
otherwise materially disadvantageous to it.


 


3.9.   
REQUIREMENTS OF LAW.


 


(a)           If, after the date hereof, the
adoption of any applicable law, rule, or regulation, or any change in any
applicable law, rule, or regulation, or any change in the interpretation or
administration thereof by any Governmental Authority, central bank, or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Lender (or its Applicable Lending Office) with any request or
directive (whether or not having the force of law) of any such Governmental
Authority, central bank, or comparable agency:


 


(i)            shall
subject such Lender (or its Applicable Lending Office) to any tax, duty, or
other charge with respect to any Eurodollar Loans or its obligation to make
Eurodollar Loans, or change the basis of taxation of any amounts payable to
such Lender (or its Applicable Lending Office) under this Credit Agreement in
respect of any Eurodollar Loans (other than Taxes and taxes imposed on the
overall net income of such Lender by the jurisdiction in which such Lender has
its principal office or such Applicable Lending Office);


 


59














 


(ii)           shall
impose, modify, or deem applicable any reserve, special deposit, assessment, or
similar requirement (other than the Eurodollar Reserve Requirement utilized in
the determination of the Adjusted Eurodollar Rate) relating to any extensions
of credit or other assets of, or any deposits with or other liabilities or
commitments of, such Lender (or its Applicable Lending Office), including the
Commitment of such Lender hereunder; or


 


(iii)          shall
impose on such Lender (or its Applicable Lending Office) or the London
interbank market any other condition affecting this Credit Agreement or any of
such extensions of credit or liabilities or commitments;


 


and the result of any of the foregoing is to
increase, by an amount deemed by such Lender (or its Applicable Lending Office)
to be material, the cost to such Lender (or its Applicable Lending Office) of
making, Converting into, Continuing, or maintaining any Eurodollar Loans or to
reduce any sum received or receivable by such Lender (or its Applicable Lending
Office) under this Credit Agreement with respect to any Eurodollar Loans, then
the Borrower shall pay to such Lender on demand such amount or amounts as will
compensate such Lender for such increased cost or reduction. If any Lender
requests compensation by the Borrower under this Section 3.9, the Borrower
may, by notice to such Lender (with a copy to the Administrative Agent),
suspend the obligation of such Lender to make or Continue Eurodollar Loans, or
to Convert Base Rate Loans into Eurodollar Loans, until the event or condition
giving rise to such request ceases to be in effect (in which case the
provisions of Section 3.10 shall be applicable); provided that such
suspension shall not affect the right of such Lender to receive the
compensation so requested. Each Lender shall promptly notify the Borrower and
the Administrative Agent of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Lender to compensation pursuant
to this Section 3.9 and will designate a different Applicable Lending
Office if such designation will avoid the need for, or reduce the amount of,
such compensation and will not, in the judgment of such Lender, be otherwise
materially disadvantageous to it. Any Lender claiming compensation under this Section 3.9
shall furnish to the Borrower and the Administrative Agent a statement setting
forth in reasonable detail the additional amount or amounts to be paid to it
hereunder which shall be conclusive in the absence of demonstrable error. In
determining such amount, such Lender may use any reasonable averaging and
attribution methods.


 


(b)   The Borrower
shall not be required to compensate a Lender pursuant to this Section 3.9
for any increased costs or reductions incurred more than 180 days prior to the
date that such Lender notifies the Borrower of the change of law giving rise to
such increased costs or reductions and of such Lender’s intention to claim
compensation therefor; provided that, if the change of law giving rise
to such increased costs or reductions is retroactive, then such 180-day period
referred to above shall be extended to include the period of retroactive effect
thereof.


 


3.10.   
TREATMENT OF AFFECTED LOANS.


 


If the obligation
of any Lender to make any Eurodollar Loan or to Continue, or to Convert Base
Rate Loans into, Eurodollar Loans shall be suspended pursuant to Section 3.7,
3.8 or 3.9 hereof, such Lender’s Eurodollar Loans shall be automatically
Converted into Base Rate Loans on the last day(s) of the then current
Interest Period(s) for such Eurodollar Loans (or, in


 


60

















 


the
case of a Conversion required by Section 3.8, on such earlier date as
required by law as such Lender may specify to the Borrower with a copy to the
Administrative Agent) and, unless and until such Lender gives notice as
provided below that the circumstances specified in Section 3.7, 3.8 or 3.9
hereof that gave rise to such Conversion no longer exist:


 


(a)           to the extent that such Lender’s
Eurodollar Loans have been so Converted, all payments and prepayments of
principal that would otherwise be applied to such Lender’s Eurodollar Loans
shall be applied instead to its Base Rate Loans; and


 


(b)           all Loans that would otherwise be
made or Continued by such Lender as Eurodollar Loans shall be made or Continued
instead as Base Rate Loans, and all Base Rate Loans of such Lender that would
otherwise be Converted into Eurodollar Loans shall remain as Base Rate Loans.


 


If such Lender gives notice to the Borrower
(with a copy to the Administrative Agent) that the circumstances specified in Section 3.7,
3.8 or 3.9 hereof that gave rise to the Conversion of such Lender’s Eurodollar
Loans pursuant to this Section 3.10 no longer exist (which such Lender
agrees to do promptly upon such circumstances ceasing to exist) at a time when
Eurodollar Loans made by other Lenders are outstanding, such Lender’s Base Rate
Loans shall be automatically Converted, on the first day(s) of the next
succeeding Interest Period(s) for such outstanding Eurodollar Loans, to
the extent necessary so that, after giving effect thereto, all Loans held by
the Lenders holding Eurodollar Loans and by such Lender are held pro rata (as
to principal amounts, interest rate basis, and Interest Periods) in accordance
with their respective Commitments.


 


3.11.    TAXES.


 


(a)           Except as otherwise provided herein,
any and all payments by any Credit Party to or for the account of any Lender or
the Administrative Agent hereunder or under any other Credit Document shall be
made free and clear of and without deduction for any and all present or future
taxes, duties, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, EXCLUDING, in the case of each Lender and the
Administrative Agent, taxes imposed on it as a result of a present or former
connection between the Administrative Agent or such Lender and the jurisdiction
of the Governmental Authority imposing such tax or any political subdivision or
taxing authority thereof or therein (other than any such connection arising
solely from the Administrative Agent or such Lender having executed, delivered
or performed its obligations or received a payment under, or enforced this
Credit Agreement or any other Credit Document) (all such non-excluded taxes,
duties, levies, imposts, deductions, charges, withholdings, and liabilities
being hereinafter referred to as “TAXES”). If any Credit Party shall be
required by law to deduct any Taxes from or in respect of any sum payable under
this Credit Agreement or any other Credit Document to any Lender or the
Administrative Agent, (i) the sum payable shall be increased as necessary
so that after making all required deductions of Taxes (including deductions
applicable to additional sums payable under this Section 3.11) such Lender
or the Administrative Agent receives an amount equal to the sum it would have
received had no such deductions been made, (ii) such Credit Party shall
make such deductions, (iii) such Credit Party shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law, and (iv) such


 


61

















 


Credit Party
shall furnish to the Administrative Agent, at its address referred to in Section 11.1,
the original or a certified copy of a receipt evidencing payment thereof.
Notwithstanding the foregoing, no additional sums shall be payable pursuant to
this Section 3.11(a) with respect to Taxes (A) that are
attributable to such Lender’s failure to comply with Section 3.11(d), or (B) that
are United States withholding taxes imposed on amounts payable to such Lender
at the time the Lender becomes a party to this Credit Agreement or (C) unless
imposed as a result of a change in treaty, law or regulation.


 


(b)           In addition, the Borrower agrees to
pay any and all present or future stamp or documentary taxes and any other
excise or property taxes or charges or similar levies which arise from any
payment made under this Credit Agreement or any other Credit Document or from
the execution or delivery of, or otherwise with respect to, this Credit
Agreement or any other Credit Document (hereinafter referred to as “OTHER
TAXES”).


 


(c)           The Borrower agrees to indemnify each
Lender and the Administrative Agent for the full amount of Taxes and Other
Taxes (including, without limitation, any Taxes or Other Taxes imposed or
asserted by any jurisdiction on amounts payable under this Section 3.11)
paid by such Lender or the Administrative Agent (as the case may be) and any
liability (including penalties, interest, and expenses) arising therefrom or
with respect thereto.


 


(d)           Each Lender that is not a United
States person under Section 7701(a)(30) of the Code, on or prior to the
date of its execution and delivery of this Credit Agreement in the case of each
Lender listed on the signature pages hereof and on or prior to the date on
which it becomes a Lender in the case of each other Lender, and from time to
time thereafter if requested in writing by the Borrower or the Administrative
Agent (but only so long as such Lender remains lawfully able to do so), shall
provide the Borrower and the Administrative Agent with (i) Internal
Revenue Service Form W-8 BEN or W-8 ECI, as appropriate, or any successor
form prescribed by the Internal Revenue Service, certifying that such Lender is
entitled to benefits under an income tax treaty to which the United States is a
party which reduces to zero the rate of withholding tax on payments of interest
or certifying that the income receivable pursuant to this Credit Agreement is
effectively connected with the conduct of a trade or business in the United
States and/or (ii) any other form or certificate required by any taxing
authority (including any certificate required by Sections 871(h) and 881(c) of
the Code), certifying that such Lender is entitled to an exemption from tax on
payments pursuant to this Credit Agreement or any of the other Credit
Documents. In addition, each Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Lender.
Each Lender shall promptly notify the Borrower at any time it determines that
it is no longer in a position to provide any previously delivered form to the
Borrower (or any other form adopted by the United States taxing authorities for
such purposes). Notwithstanding any other provision of this paragraph, a Lender
shall not be required to deliver any form pursuant to this paragraph that such
Lender is not legally able to deliver.


 


(e)           For any period with respect to which
a Lender has failed to provide the Borrower and the Administrative Agent with
the appropriate form pursuant to Section 3.11(d) (unless such failure
is due to a change in treaty, law, or regulation occurring subsequent to the
date on which a form originally was required to be provided), such Lender shall
not be entitled to indemnification under Section 3.11(a) or 3.11(b) with
respect to Taxes imposed by the United


 


62

















 


States; provided,
however, that should a Lender, which is otherwise exempt from
withholding tax, become subject to Taxes because of its failure to deliver a
form required hereunder, the Borrower shall take such steps as such Lender
shall reasonably request to assist such Lender to recover such Taxes.


 


(f)            If any Credit Party is required to
pay additional amounts to or for the account of any Lender pursuant to this Section 3.11,
then such Lender will agree to use reasonable efforts to change the
jurisdiction of its Applicable Lending Office so as to eliminate or reduce any
such additional payment which may thereafter accrue if such change, in the
judgment of such Lender, is not otherwise materially disadvantageous to such
Lender.


 


(g)           Without prejudice to the survival of
any other agreement of the Credit Parties hereunder, the agreements and
obligations of the Credit Parties contained in this Section 3.11 shall
survive the repayment of the Loans, LOC Obligations and other obligations under
the Credit Documents and the termination of the Commitments hereunder.


 


(h)           If the Administrative Agent or any
Lender receives a refund with respect to Taxes paid by the Borrower, which in
the good faith judgment of such Lender is allocable to such payment, the
Administrative Agent or Lender, respectively shall promptly pay such refund,
together with any other amounts paid by the Borrower in connection with such
refunded Taxes, to the Borrower, net of all out-of-pocket expenses of such
Lender incurred in obtaining such refund, provided, however, that
the Borrower agrees to promptly return such refund to the Administrative Agent
or the applicable Lender, as the case may be, if it receives notice from the
Administrative Agent or applicable Lender that such Administrative Agent or
Lender is required to repay such refund. 
This section shall not be construed to require any Lender or the
Administrative Agent to make available its tax returns (or any other
information relating to its taxes which it deems confidential) to any Credit Party
or any other Person.


 


3.12.    COMPENSATION.  Upon the request of any Lender, the Borrower
shall pay to such Lender such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost, or
expense (excluding loss of anticipated profits) incurred by it as a result of:


 


(a)           any payment, prepayment, or
Conversion of a Eurodollar Loan or Quoted Rate Swingline Loan for any reason
(other than in connection with any assignment by any Lender pursuant to Section 11.3(b),
but including acceleration of the Loans pursuant to Section 9.2) on a date
other than the last day of the Interest Period for such Loan; or


 


(b)           any failure by the Borrower for any
reason (including, without limitation, the failure of any condition precedent
specified in Section 5 to be satisfied) to borrow, Convert, Continue, or
prepay a Eurodollar Loan or Quoted Rate Swingline Loan on the date for such
borrowing, Conversion, Continuation, or prepayment specified in the relevant
notice of borrowing, prepayment, Continuation, or Conversion under this Credit
Agreement.


 


With respect to Eurodollar Loans, such
indemnification may include an amount equal to the excess, if any, of (a) the
amount of interest (other than the Applicable Percentage) which would have
accrued on the amount so prepaid, or not so borrowed, Converted or Continued,
for the


 


63

















 


period from the date of such prepayment or of
such failure to borrow, Convert or Continue to the last day of the applicable
Interest Period (or, in the case of a failure to borrow, Convert or Continue,
the Interest Period that would have commenced on the date of such failure) in
each case at the applicable rate of interest for such Eurodollar Loans provided
for herein (excluding, however, the Applicable Percentage included therein, if
any) over (b) the amount of interest (as reasonably determined by such
Lender) which would have accrued to such Lender on such amount by placing such
amount on deposit for a comparable period with leading banks in the interbank
Eurodollar market. Any Lender claiming compensation under this Section 3.12
shall furnish to the Borrower and the Administrative Agent a statement setting
forth in reasonable detail the calculation of the amounts to be paid to it
hereunder. The covenants of the Borrower set forth in this Section 3.12
shall survive the repayment of the Loans, LOC Obligations and other obligations
under the Credit Documents and the termination of the Commitments hereunder; provided,
however, the Borrower shall not be required to compensate a Lender
pursuant to this Section 3.12 for any such loss, cost or expense incurred
more than 180 days prior to the date that such Lender notifies the Borrower of
the incurrence of such loss, cost or expense.


 


3.13.    PRO RATA TREATMENT.


 


Except to the
extent otherwise provided herein:


 


(a)           LOANS. Each Loan, each payment or
(subject to the terms of Section 3.3) prepayment of principal of any Loan
or reimbursement obligations arising from drawings under Letters of Credit,
each payment of interest on the Loans or reimbursement obligations arising from
drawings under Letters of Credit, each payment of Unused Fees, each payment of
the Standby Letter of Credit Fee, each payment of the Trade Letter of Credit
Fee, each reduction of the Revolving Committed Amount and each conversion or
extension of any Loan, shall be allocated pro rata among the Lenders in
accordance with the respective principal amounts of their outstanding Loans of
the applicable type and Participation Interests in Loans of the applicable type
and Letters of Credit.


 


(b)           ADVANCES. No Lender shall be
responsible for the failure or delay by any other Lender in its obligation to
make its ratable share of a borrowing hereunder; provided, however,
that the failure of any Lender to fulfill its obligations hereunder shall not
relieve any other Lender of its obligations hereunder. Unless the
Administrative Agent shall have been notified by any Lender prior to the date
of any requested borrowing that such Lender does not intend to make available
to the Administrative Agent its ratable share of such 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 the date of such borrowing, and
the Administrative Agent in reliance upon such assumption, may (in its sole
discretion but without any obligation to do so) make available to the Borrower
a corresponding amount. If such corresponding amount is not in fact made
available to the Administrative Agent, the Administrative Agent shall be able
to recover such corresponding amount from such Lender. If such Lender does not
pay such corresponding amount forthwith upon the Administrative Agent’s demand
therefor, the Administrative Agent will promptly notify the Borrower, and the
Borrower shall promptly pay such corresponding amount to the Administrative
Agent. The Administrative Agent shall also be entitled to recover from the
Lender or the Borrower, as the case may be, interest on such corresponding amount
in respect of each day from the date such corresponding


 


64

















 


amount was
made available by the Administrative Agent to the Borrower to the date such
corresponding amount is recovered by the Administrative Agent at a per annum
rate equal to (i) from the Borrower at the applicable rate for the
applicable borrowing pursuant to the Notice of Borrowing and (ii) from a
Lender at the Federal Funds Rate.


 


3.14.    SHARING OF PAYMENTS.


 


(a)           The Lenders agree among themselves
that, in the event that any Lender shall obtain payment in respect of any Loan,
LOC Obligations or any other obligation owing to such Lender under this Credit
Agreement through the exercise of a right of setoff, banker’s lien or
counterclaim, or pursuant to a secured claim under Section 506 of Title 11
of the United States Code or other security or interest arising from, or in
lieu of, such secured claim, received by such Lender under any applicable
bankruptcy, insolvency or other similar law or otherwise, or by any other
means, in excess of its pro rata share of such payment as provided for in this
Credit Agreement, such Lender shall promptly purchase from the other Lenders a
Participation Interest in such Loans, LOC Obligations and other obligations in
such amounts, and make such other adjustments from time to time, as shall be
equitable to the end that all Lenders share such payment in accordance with
their respective ratable shares as provided for in this Credit Agreement. The
Lenders further agree among themselves that if payment to a Lender obtained by
such Lender through the exercise of a right of setoff, banker’s lien,
counterclaim or other event as aforesaid shall be rescinded or must otherwise
be restored, each Lender which shall have shared the benefit of such payment
shall, by repurchase of a Participation Interest theretofore sold, return its
share of that benefit (together with its share of any accrued interest payable
with respect thereto) to each Lender whose payment shall have been rescinded or
otherwise restored. The Borrower agrees that any Lender so purchasing such a
Participation Interest may, to the fullest extent permitted by law and in a
manner not inconsistent with this Credit Agreement, exercise all rights of
payment, including setoff, banker’s lien or counterclaim, with respect to such
Participation Interest as fully as if such Lender were a holder of such Loan,
LOC Obligations or other obligation in the amount of such Participation
Interest. Except as otherwise expressly provided in this Credit Agreement, if
any Lender shall fail to remit to the Administrative Agent or any other Lender
an amount payable by such Lender to the Administrative Agent or such other
Lender pursuant to this Credit Agreement on the date when such amount is due,
such payments shall be made together with interest thereon for each date from
the date such amount is due until the date such amount is paid to the
Administrative Agent or such other Lender at a rate per annum equal to, for the
first two days, the Federal Funds Rate, and thereafter, the Adjusted Base Rate.
If under any applicable bankruptcy, insolvency or other similar law, any Lender
receives a secured claim in lieu of a setoff to which this Section 3.14
applies, such Lender shall, to the extent practicable, exercise its rights in
respect of such secured claim in a manner consistent with the rights of the
Lenders under this Section 3.14 to share in the benefits of any recovery
on such secured claim.


 


3.15.   
PAYMENTS, COMPUTATIONS, ETC.


 


(a)           GENERALLY. Except as otherwise
specifically provided herein, all payments hereunder shall be made to the
Administrative Agent in Dollars in immediately available funds, without setoff,
deduction, counterclaim or withholding of any kind, at the Administrative Agent’s
office specified in Schedule 2.1(a) not later than 2:00 P.M.
(New York


 


65

















 


City time) on
the date when due. Payments received after such time shall be deemed to have
been received on the next succeeding Business Day. The Borrower shall, at the
time it makes any payment under this Credit Agreement, specify to the
Administrative Agent the Loans, LOC Obligations, Fees, interest or other
amounts payable by the Borrower hereunder to which such payment is to be
applied (and in the event that it fails so to specify, or if such application
would be inconsistent with the terms hereof, the Administrative Agent shall
distribute such payment to the Lenders in such manner as the Administrative
Agent may determine to be appropriate in respect of obligations owing by the
Borrower hereunder, subject to the terms of Sections 3.3 and 3.13(a)). The
Administrative Agent will distribute such payments to such Lenders, if any such
payment is received prior to 2:00 P.M. (New York City time) on a Business
Day in like funds as received prior to the end of such Business Day and
otherwise the Administrative Agent will distribute such payment to such Lenders
on the next succeeding Business Day. Whenever any payment hereunder 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 (subject to accrual of interest
and Fees for the period of such extension), except that in the case of
Eurodollar Loans, if the extension would cause the payment to be made in the
next following calendar month, then such payment shall instead be made on the
next preceding Business Day. Except as expressly provided otherwise herein, all
computations of interest and fees shall be made on the basis of actual number
of days elapsed over a year of 360 days, except with respect to computation of
interest on Base Rate Loans which shall be calculated based on a year of 365 or
366 days, as appropriate. Interest shall accrue from and include the date of
borrowing, but exclude the date of payment.


 


(b)           ALLOCATION OF PAYMENTS AFTER
ACCELERATION. Notwithstanding any other provision of this Credit Agreement to
the contrary, after acceleration of the Credit Party Obligations pursuant to Section 9.2(b),
all amounts collected or received by the Administrative Agent or any Lender on
account of the Credit Party Obligations or in respect of the Collateral shall
be applied as set forth in Section 6.5 of the Collateral Agreement.


 


3.16.    EVIDENCE OF DEBT.


 


(a)           Each Lender shall maintain an account
or accounts evidencing each Loan made by such Lender to the Borrower from time
to time, including the amounts of principal and interest payable and paid to
such Lender from time to time under this Credit Agreement. Each Lender will
make reasonable efforts to maintain the accuracy of its account or accounts and
to promptly update its account or accounts from time to time, as necessary.


 


(b)           The Administrative Agent shall
maintain the Register pursuant to Section 11.3(b), and a subaccount for
each Lender, in which Register and subaccounts (taken together) shall be
recorded (i) the amount, type and Interest Period of each such Loan
hereunder, (ii) the amount of any principal or interest due and payable or
to become due and payable to each Lender hereunder and (iii) the amount of
any sum received by the Administrative Agent hereunder from or for the account
of any Credit Party and each Lender’s share thereof. The Administrative Agent
will make reasonable efforts to maintain the accuracy of the subaccounts
referred to in the preceding sentence and to promptly update such subaccounts
from time to time, as necessary.


 


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(c)           The entries made in the accounts,
Register and subaccounts maintained pursuant to clause (b) of this Section 3.16
(and, if consistent with the entries of the Administrative Agent, clause (a))
shall be prima facie evidence of the existence and amounts of the obligations
of the Credit Parties therein recorded; provided, however, that
the failure of any Lender or the Administrative Agent to maintain any such
account, such Register or such subaccount, as applicable, or any error therein,
shall not in any manner affect the obligation of the Credit Parties to repay
the Credit Party Obligations owing to such Lender.


 


3.17.    REPLACEMENT OF AFFECTED
LENDERS.


 


If (i) any Lender having a Revolving Commitment
becomes a Defaulting Lender or otherwise defaults in its Revolving Commitment, (ii) any
Credit Party is required to make any payments to any Lender under Section 3.6,
Section 3.8, Section 3.9 or Section 3.11 in excess of the
proportionate amount (based on the respective Commitments and/or Loans of the
Lenders) of corresponding payments required to be made to the other Lenders or (iii) in
the event of a refusal by a Lender to consent to a proposed change, waiver,
discharge or termination which requires the consent of all Lenders or all
affected Lenders and for which approval of such Lenders holding more than a majority
in interest has already been obtained, the Borrower shall have the right to
replace such Lender (the “REPLACED LENDER”) with one or more other Eligible
Assignee or Eligible Assignees, none of whom shall constitute a Defaulting
Lender at the time of such replacement (collectively, the “REPLACEMENT LENDER”),
provided that (a) except in the case of clause (iii) above, no
Event of Default then exists, (b) at the time of any replacement pursuant
to this Section 3.17, the Replaced Lender and Replacement Lender shall
enter into an Assignment and Acceptance pursuant to which the Replacement
Lender shall acquire all or a portion, as the case may be, of the Commitments
and outstanding Loans of, and participation in Letters of Credit by, the
Replaced Lender and (c) all obligations of the Borrower owing to the
Replaced Lender relating to the Loans so replaced (including, without
limitation, such increased costs and excluding those specifically described in
clause (b) above in respect of which the assignment purchase price has
been, or is concurrently being paid) shall be paid in full to such Replaced
Lender concurrently with such replacement. Upon the execution of the
appropriate Assignment and Acceptance, the payment of amounts referred to in
clauses (b) and (c) above and, if so requested by the Replacement
Lender, delivery to the Replacement Lender of the appropriate Note or Notes
executed by the Borrower, the Replacement Lender shall become a Lender
hereunder and the Replaced Lender shall cease to constitute a Lender hereunder
with respect to such replaced Loans, except with respect to indemnification
provisions under this Agreement, which shall survive as to such Replaced
Lender. Notwithstanding anything to the contrary contained above, (1) the
Lender that acts as the Issuing Lender may not be replaced hereunder at any
time that it has Letters of Credit outstanding hereunder unless arrangements
satisfactory to the Issuing Lender (including the furnishing of a back-up
standby letter of credit in form and substance, and issued by an issuer,
satisfactory to such Issuing Lender or the depositing of cash collateral into a
cash collateral account maintained with the Administrative Agent in amounts and
pursuant to arrangements satisfactory to such Issuing Lender) have been made
with respect to such outstanding Letters of Credit and (2) the Lender that
acts as the Administrative Agent may not be replaced hereunder except in
accordance with the terms of Section 10.7. The Replaced Lender shall be
required to deliver for cancellation its applicable Notes, if any, to be
canceled on the date of replacement, or if any such Note is lost or


 


67

















 


unavailable, such other
assurances or indemnification therefor as the Borrower may reasonably request.


 


SECTION IV


 


GUARANTY


 


4.1.    THE GUARANTY.


 


Each of the Guarantors hereby jointly and severally
guarantees to each Lender, each Affiliate of a Lender that enters into a
Hedging Agreement, and the Administrative Agent as hereinafter provided, as
primary obligor and not as surety, the prompt payment of the Credit Party
Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or
otherwise) strictly in accordance with the terms thereof. The Guarantors hereby
further agree that if any of the Credit Party Obligations are not paid in full
when due (whether at stated maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise), the
Guarantors will, jointly and severally, promptly pay the same, without any
demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Credit Party Obligations, the same will be
promptly paid in full when due (whether at extended maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or
otherwise) in accordance with the terms of such extension or renewal.


 


Notwithstanding any provision to the contrary
contained herein or in any other of the Credit Documents or Hedging Agreements,
the maximum liability of each Guarantor under this Credit Agreement and the
other Credit Documents shall in no event exceed the maximum amount which can be
guaranteed by such Guarantor under applicable federal and state laws relating
to the insolvency of debtors and fraudulent conveyance or transfers (after
giving effect to the right of contribution established in Section 4.6).


 


4.2.    OBLIGATIONS UNCONDITIONAL.


 


The obligations of the Guarantors under Section 4.1
are joint and several, absolute and unconditional, irrespective of the value,
genuineness, validity, regularity or enforceability of any of the Credit
Documents or Hedging Agreements, or any other agreement or instrument referred
to therein, or any substitution, release, impairment or exchange of any other
guarantee of or security for any of the Credit Party Obligations, and, to the
fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this Section 4.2
that the obligations of the Guarantors hereunder shall be absolute and
unconditional under any and all circumstances. Each Guarantor agrees that such
Guarantor shall have no right of subrogation, indemnity, reimbursement or
contribution against the Borrower or any other Guarantor for amounts paid under
this Section IV until such time as the Credit Party Obligations have been
Fully Satisfied. Without limiting the generality of the foregoing, it is agreed
that, to the fullest extent permitted by law, the occurrence of any one or more
of the


 


68

















 


following shall not alter or
impair the liability of any Guarantor hereunder which shall remain absolute and
unconditional as described above:


 


(a)           at any time or from time to time,
without notice to any Guarantor, the time for any performance of or compliance
with any of the Credit Party Obligations shall be extended, or such performance
or compliance shall be waived;


 


(b)           any of the acts mentioned in any of
the provisions of any of the Credit Documents, any Hedging Agreement between
any Consolidated Party and any Lender, or any Affiliate of a Lender, or any
other agreement or instrument referred to in the Credit Documents or such
Hedging Agreements shall be done or omitted;


 


(c)           the maturity of any of the Credit
Party Obligations shall be accelerated, or any of the Credit Party Obligations
shall be increased, modified, supplemented or amended in any respect, or any
right under any of the Credit Documents, any Hedging Agreement between any
Consolidated Party and any Lender, or any Affiliate of a Lender, or any other
agreement or instrument referred to in the Credit Documents or such Hedging
Agreements shall be waived or released or any other guarantee of any of the
Credit Party Obligations or any security therefor shall be released, impaired
or exchanged in whole or in part or otherwise dealt with;


 


(d)           any Lien granted to, or in favor of,
the Administrative Agent or any Lender or Lenders as security for any of the
Credit Party Obligations shall fail to attach or be perfected or shall be
released; or


 


(e)           any of the Credit Party Obligations
shall be determined to be void or voidable (including, without limitation, for
the benefit of any creditor of any Guarantor) or shall be subordinated to the
claims of any Person (including, without limitation, any creditor of any
Guarantor).


 


With respect to its obligations hereunder,
each Guarantor hereby expressly waives diligence, presentment, demand of
payment, protest and all notices whatsoever, and any requirement that the
Administrative Agent or any Lender exhaust any right, power or remedy or
proceed against any Person under any of the Credit Documents, any Hedging
Agreement between any Consolidated Party and any Lender, or any Affiliate of a
Lender, or any other agreement or instrument referred to in the Credit
Documents or such Hedging Agreements, or against any other Person under any
other guarantee of, or security for, any of the Credit Party Obligations.


 


4.3.    REINSTATEMENT.


 


The obligations of the Guarantors under this Section IV
shall be automatically reinstated if and to the extent that for any reason any
payment by or on behalf of any Person in respect of the Credit Party
Obligations is rescinded or must be otherwise restored by any holder of any of
the Credit Party Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, and each Guarantor agrees that it
will indemnify the Administrative Agent and each Lender on demand for all
reasonable costs and expenses (including, without limitation, fees and expenses
of counsel) incurred by the Administrative Agent or such Lender in connection
with such rescission or restoration, including any such costs and expenses
incurred in


 


69

















 


defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law.


 


4.4.    CERTAIN ADDITIONAL WAIVERS.


 


Without limiting the generality of the provisions of
this Section IV, each Guarantor agrees that such Guarantor shall have no
right of recourse to security for the Credit Party Obligations, except through
the exercise of rights of subrogation pursuant to Section 4.2 and through
the exercise of rights of contribution pursuant to Section 4.6.


 


4.5.    REMEDIES.


 


The Guarantors agree that, to the fullest extent
permitted by law, as between the Guarantors, on the one hand, and the
Administrative Agent and the Lenders, on the other hand, the Credit Party
Obligations may be declared to be forthwith due and payable as provided in Section 9.2
(and shall be deemed to have become automatically due and payable in the
circumstances provided in said Section 9.2) for purposes of Section 4.1
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or preventing the Credit Party Obligations from becoming
automatically due and payable) as against any other Person and that, in the
event of such declaration (or the Credit Party Obligations being deemed to have
become automatically due and payable), the Credit Party Obligations (whether or
not due and payable by any other Person) shall forthwith become due and payable
by the Guarantors for purposes of Section 4.1. The Guarantors acknowledge
and agree that their obligations hereunder are secured in accordance with the
terms of the Collateral Documents and that the Lenders may exercise their
remedies thereunder in accordance with the terms thereof.


 


4.6.    RIGHTS OF CONTRIBUTION.


 


The Guarantors hereby agree as among themselves
that, if any Guarantor shall make an Excess Payment (as defined below), such
Guarantor shall have a right of contribution from each other Guarantor in an
amount equal to such other Guarantor’s Contribution Share (as defined below) of
such Excess Payment. The payment obligations of any Guarantor under this Section 4.6
shall be subordinate and subject in right of payment to the Credit Party
Obligations until such time as the Credit Party Obligations have been Fully
Satisfied, and none of the Guarantors shall exercise any right or remedy under
this Section 4.6 against any other Guarantor until such Credit Party
Obligations have been Fully Satisfied. For purposes of this Section 4.6, (a) “EXCESS
PAYMENT” shall mean the amount paid by any Guarantor in excess of its Pro Rata
Share of any Guaranteed Obligations; (b) “PRO RATA SHARE” shall mean, for
any Guarantor in respect of any payment of Credit Party Obligations, the ratio
(expressed as a percentage) as of the date of such payment of Guaranteed
Obligations of (i) the amount by which the aggregate present fair salable
value of all of its assets and properties exceeds the amount of all debts and
liabilities of such Guarantor (including contingent, subordinated, unmatured,
and unliquidated liabilities, but excluding the obligations of such Guarantor
hereunder) to (ii) the amount by which the aggregate present fair salable
value of all assets and other properties of all of the Credit Parties exceeds
the amount of all of the debts and liabilities (including contingent,
subordinated, unmatured, and unliquidated liabilities, but excluding the
obligations of the Credit Parties hereunder) of the Credit Parties; provided,
however, that, for purposes of calculating the


 


70

















 


Pro Rata Shares of the
Guarantors in respect of any payment of Credit Party Obligations, any Guarantor
that became a Guarantor subsequent to the date of any such payment shall be
deemed to have been a Guarantor on the date of such payment and the financial
information for such Guarantor as of the date such Guarantor became a Guarantor
shall be utilized for such Guarantor in connection with such payment; and (C) “CONTRIBUTION
SHARE” shall mean, for any Guarantor in respect of any Excess Payment made by
any other Guarantor, the ratio (expressed as a percentage) as of the date of
such Excess Payment of (i) the amount by which the aggregate present fair
salable value of all of its assets and properties exceeds the amount of all
debts and liabilities of such Guarantor (including contingent, subordinated,
unmatured, and unliquidated liabilities, but excluding the obligations of such
Guarantor hereunder) to (ii) the amount by which the aggregate present
fair salable value of all assets and other properties of the Credit Parties
other than the maker of such Excess Payment exceeds the amount of all of the
debts and liabilities (including contingent, subordinated, unmatured, and
unliquidated liabilities, but excluding the obligations of the Credit Parties)
of the Credit Parties other than the maker of such Excess Payment; provided,
however, that, for purposes of calculating the Contribution Shares of
the Guarantors in respect of any Excess Payment, any Guarantor that became a
Guarantor subsequent to the date of any such Excess Payment shall be deemed to
have been a Guarantor on the date of such Excess Payment and the financial
information for such Guarantor as of the date such Guarantor became a Guarantor
shall be utilized for such Guarantor in connection with such Excess Payment.
This Section 4.6 shall not be deemed to affect any right of subrogation,
indemnity, reimbursement or contribution that any Guarantor may have under
applicable law against the Borrower in respect of any payment of Guaranteed
Obligations. Notwithstanding the foregoing, all rights of contribution against
any Guarantor shall terminate from and after such time, if ever, that such
Guarantor shall be relieved of its obligations pursuant to Section 8.5.


 


4.7.   
GUARANTEE OF PAYMENT; CONTINUING GUARANTEE.


 


The guarantee in this Section IV is a guaranty
of payment and not of collection, is a continuing guarantee, and shall apply to
all Credit Party Obligations whenever arising.


 


SECTION V


 


CONDITIONS


 


5.1.   
CLOSING CONDITIONS; AMENDMENT AND RESTATEMENT.


 


The agreement of each Lender to amend and restate
the Existing Credit Agreement pursuant to this Agreement and make and continue
extensions of credit hereunder shall be subject to satisfaction of the
following conditions (subject to Section 7.13, which allows for certain
conditions to be satisfied following the Closing Date):


 


(a)           EXECUTED CREDIT DOCUMENTS. Receipt by
the Administrative Agent of duly executed copies of: (i) this Credit Agreement,
(ii) the Collateral Documents (or amendments or confirmation of the
Collateral Documents in forms agreed to by the Borrower and the Administrative
Agent) and (iii) all other Credit Documents requested by the
Administrative Agent.


 


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(b)                                 CORPORATE DOCUMENTS. Receipt by the
Administrative Agent of the following:


 


(i)                                     CHARTER
DOCUMENTS. Copies of the articles or certificates of incorporation or other
charter documents of each Credit Party certified to be true and complete as of
a recent date by the appropriate Governmental Authority of the state or other
jurisdiction of its incorporation and certified by a secretary or assistant
secretary of such Credit Party to be true and correct as of the Closing Date.


 


(ii)                                  BYLAWS. A copy of
the bylaws of each Credit Party certified by a secretary or assistant secretary
of such Credit Party to be true and correct as of the Closing Date.


 


(iii)                               RESOLUTIONS.
Copies of resolutions of the Board of Directors of each Credit Party approving
and adopting the Credit Documents to which it is a party, the transactions
contemplated therein and authorizing execution and delivery thereof, certified
by a secretary or assistant secretary of such Credit Party to be true and
correct and in force and effect as of the Closing Date.


 


(iv)                              GOOD STANDING.
Copies of (A) certificates of good standing, existence or its equivalent
with respect to each Credit Party certified as of a recent date by the
appropriate Governmental Authorities of the state or other jurisdiction of
incorporation and each other jurisdiction in which the failure to so qualify
and be in good standing could have a Material Adverse Effect and (B) to
the extent available, a certificate indicating payment of all corporate or
comparable franchise taxes certified as of a recent date by the appropriate
governmental taxing authorities.


 


(v)                                 INCUMBENCY. An
incumbency certificate of each Credit Party certified by a secretary or
assistant secretary to be true and correct as of the Closing Date.


 


(c)                                  OPINION OF COUNSEL. The Administrative
Agent shall have received, in each case dated as of the Closing Date and in
form and substance reasonably satisfactory to the Administrative Agent legal
opinion of Kirkland & Ellis LLP, counsel for the Credit Parties.


 


(d)                                 PERSONAL PROPERTY COLLATERAL. The
Administrative Agent shall have received:


 


(i)                                     searches of
Uniform Commercial Code filings in each jurisdiction where a filing would need
to be made in order to perfect the Administrative Agent’s security interest in
the Collateral, copies of the financing statements on file in such
jurisdictions and evidence that no Liens on the Collateral exist other than
Permitted Liens;


 


(ii)                                  all certificates
evidencing any certificated Capital Stock pledged to the Administrative Agent
pursuant to the Collateral Agreement, together with duly executed in blank,
undated stock powers attached thereto (unless, with respect to the pledged
Capital Stock of any Foreign Subsidiary, such stock powers are deemed
unnecessary by the Administrative Agent in its reasonable discretion under the
law of the 


 


72

















 


jurisdiction of incorporation of such Person), in each case to the
extent not previously delivered pursuant to the Existing Credit Agreement; and


 


(iii)                               all instruments
and chattel paper having a value in excess of $100,000 in the possession of any
of the Credit Parties, together with allonges or assignments as may be
necessary or appropriate to perfect the Administrative Agent’s security
interest in the Collateral, in each case to the extent not previously delivered
pursuant to the Existing Credit Agreement.


 


(e)                                  REAL PROPERTY COLLATERAL.


 


With respect to the owned real properties designated
in Schedule 6.20(a) which are not identified on such Schedule as “Excluded
Properties” (each a “MORTGAGED PROPERTY” and collectively the “MORTGAGED
PROPERTIES”):


 


(i)  executed amendments in form and substance reasonably
satisfactory to the Administrative Agent to the mortgages, deeds of trust or
deeds to secure debt (each, as the same may be amended, modified, restated or
supplemented from time to time, a “MORTGAGE INSTRUMENT” and collectively the “MORTGAGE
INSTRUMENTS”) delivered pursuant to the Existing Credit Agreement;


 


(ii)  an endorsement to
each of the existing title insurance policies updating the effective date and
amending the description of the existing insured mortgage to include this
Credit Agreement; and


 


(iii)  a no-lien
affidavit executed by an Executive Officer of each respective mortgagor, in
form satisfactory to the title company.


 


(f)                                    EVIDENCE OF INSURANCE. Receipt by the
Administrative Agent of copies of insurance policies or certificates of
insurance of the Consolidated Parties evidencing liability and casualty
insurance meeting the requirements set forth in this Credit Agreement,
including, but not limited to, naming the Administrative Agent as additional
insured (in the case of liability insurance) or loss payee (in the case of
hazard insurance) on behalf of the Lenders to the extent not previously delivered
under the Existing Credit Agreement.


 


(g)                                 CONSENT. Receipt by the Administrative
Agent of evidence that all material governmental, shareholder and third party
consents and approvals necessary in connection with the Transaction have been
obtained.


 


(h)                                 SOLVENCY. Receipt by the Administrative
Agent of a certificate executed by the chief financial officer of the Parent as
of the Closing Date, in form and substance satisfactory to the Administrative
Agent, regarding the Solvency of the Credit Parties on a consolidated basis.


 


(i)                                     OFFICER’S CERTIFICATES. The
Administrative Agent shall have received a certificate or certificates executed
by an Executive Officer of the Borrower as of the Closing Date, in form and
substance reasonably satisfactory to the Administrative Agent, stating 


 


73

















 


that
immediately after giving effect to the Transaction, (1) no Default or
Event of Default exists and (2) all representations and warranties
contained herein, in the other Credit Documents are true and correct in all
material respects.


 


(j)                                     FEES AND EXPENSES. Payment by the
Credit Parties to the Lenders and the Administrative Agent of all fees and
expenses relating to the Credit Facilities which are due and payable on the
Closing Date, including, without limitation, payment to the Administrative
Agent of the fees set forth in the Administrative Agent’s Fee Letter.


 


(k)                                  PRO FORMA BALANCE
SHEET; FINANCIAL STATEMENTS.
The Lenders
shall have received an unaudited pro forma consolidated
balance sheet of the Borrower as of December 23, 2006, after giving effect to the Transactions
and the consummation of the other transactions contemplated hereby.


 


(l)                                     REALLOCATION AND ASSIGNMENTS.


 


(i)                                     The Borrower
shall have paid to the Administrative Agent interest, letter of credit
commissions and unused fees which are unpaid and accrued to the Closing Date
under the Existing Credit Agreement.


 


(ii)                                  The Lenders shall
have made such payments and assignments among themselves and to the lenders
under the Existing Credit Agreement, as directed by the Administrative Agent,
so that the Commitments, Loans and Letters of Credit outstanding on the Closing
Date are held by the Lenders in accordance with this Credit Agreement.  Commitments, Loans and Letters of Credit
(each as defined in the Existing Credit Agreement) made or issued under the
Existing Credit Agreement and outstanding on the Closing Date shall be
continued outstanding hereunder as Commitments, Loans and Letters of Credit
hereunder as provided in Section 2.7 and 2.2(a).  Pursuant to the foregoing, funding for any
Lender on the Closing Date may be made on a net basis as directed by the
Administrative Agent.


 


5.2.   
CONDITIONS TO ALL EXTENSIONS OF CREDIT.


 


The obligations of each Lender to make any Loan and
of the Issuing Lender to issue or extend any Letter of Credit (including the
initial Loans and the initial Letter of Credit) on any date are subject to
satisfaction of the following conditions in addition to satisfaction on the
Closing Date of the conditions set forth in Section 5.1:


 


(a)                                  The Borrower shall have delivered (i) in
the case of any Revolving Loan or any portion of the Tranche B Term Loan, an
appropriate Notice of Borrowing or (ii) in the case of any Letter of
Credit, the Issuing Lender shall have received an appropriate request for
issuance in accordance with the provisions of Section 2.2(b);


 


(b)                                 (i) The representations and
warranties set forth in Section 6 shall, subject to the limitations set
forth therein, be true and correct in all material respects as of such date
(except for those which expressly relate to an earlier date in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date) and (ii) no 


 


74

















 


Default or
Event of Default shall exist and be continuing either prior to or after giving
effect thereto;


 


(c)                                  In the case of a request for a
Revolving Loan or a Letter of Credit, immediately after giving effect to the
making of such Loan (and the application of the proceeds thereof) or to the
issuance of such Letter of Credit, as the case may be, (i) the sum of the
aggregate outstanding principal amount of Revolving Loans plus LOC
Obligations plus Swingline Loans shall not exceed the Revolving
Committed Amount, and (ii) the LOC Obligations shall not exceed the LOC
Committed Amount.


 


The delivery of each Notice of Borrowing and
each request for a Letter of Credit pursuant to Section 2.2(b) shall
constitute a representation and warranty by the Credit Parties of the
correctness of the matters specified in subsections (b) and (c) above.


 


SECTION VI


 


REPRESENTATIONS
AND WARRANTIES


 


The Credit Parties hereby represent to the
Administrative Agent and each Lender that:


 


6.1.   
FINANCIAL CONDITION.


 


(a)                                  The audited consolidated balance sheets
and income statements of the Consolidated Parties for the fiscal years ended on
or about June 24, 2006, June 30, 2005 and June 30, 2004
(including the notes thereto) (i) have been audited by Deloitte &
Touche LLP, (ii) have been prepared in accordance with GAAP consistently
applied throughout the periods covered thereby and (iii) present fairly
(on the basis disclosed in the footnotes to such financial statements) in all
material respects the consolidated financial condition, results of operations
and cash flows of the Consolidated Parties as of such date and for such
periods. The unaudited interim balance sheets of the Consolidated Parties as at
the end of, and the related unaudited interim income statements for the fiscal
quarter ended in, December 2006 (copies of which previously have been
delivered to the Administrative Agent) (i) have been prepared in
accordance with GAAP consistently applied throughout the periods covered
thereby (except for the absence of footnotes and subject to year-end audit
adjustments) and (ii) present fairly (on the basis disclosed in the
footnotes to such financial statements) in all material respects the
consolidated financial condition, results of operations and cash flows of the
Consolidated Parties as of such date and for such periods.


 


(b)                                 The pro forma consolidated balance
sheet as of December 23, 2006 and the pro forma income statement of the
Consolidated Parties for the six month period ending December 23, 2006
giving effect to the Transaction are based upon reasonable assumptions
made known to the Lenders and upon information not known to be incorrect or
misleading in any material respect.


 


(c)                                  To the extent delivered, the financial
statements delivered pursuant to Section 7.1(a) and (b) have
been prepared in accordance with GAAP (except as may otherwise 


 


75

















 


be permitted
under Section 7.1(a) and (b)) and present fairly (on the basis
disclosed in the footnotes to such financial statements) in all material
respects the consolidated financial condition, results of operations and cash
flows of the Consolidated Parties as of such date and for such periods (except
for, in the case of the financial statements described in Section 7.1(b),
the absence of footnotes and subject to year-end audit adjustments).


 


6.2.   
NO MATERIAL CHANGE.


 


Since June 24, 2006, there has been no
development or event relating to or affecting a Consolidated Party which has
had or could reasonably be expected to have a Material Adverse Effect.


 


6.3.   
ORGANIZATION AND GOOD STANDING.


 


Each of the Consolidated Parties (a) is duly
organized, validly existing and is in good standing under the laws of the
jurisdiction of its incorporation or organization, (b) has the corporate
or other necessary power and authority, and the legal right, to own and operate
its property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged and (c) is duly qualified as a
foreign entity and in good standing under the laws of each jurisdiction where
its ownership, lease or operation of property or the conduct of its business
requires such qualification, other than in such jurisdictions where the failure
to be so qualified and in good standing would not have a Material Adverse
Effect.


 


6.4.   
POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.


 


Each of the Credit Parties has the corporate or
other necessary power and authority, and the legal right, to make, deliver and
perform the Credit Documents to which it is a party, and in the case of the
Borrower, to obtain extensions of credit hereunder, and has taken all necessary
corporate or other necessary action to authorize the borrowings and other
extensions of credit on the terms and conditions of this Credit Agreement and
to authorize the execution, delivery and performance of the Credit Documents to
which it is a party. No consent or authorization of, filing with, notice to or
other similar act by or in respect of, any Governmental Authority or any other
Person is required to be obtained or made by or on behalf of any Credit Party
in connection with the borrowings or other extensions of credit hereunder, with
the execution, delivery, performance, validity or enforceability of the Credit
Documents to which such Credit Party is a party or with the consummation of the
Transaction, except for (i) consents, authorizations, notices and filings
described in Schedule 6.4, all of which have been obtained or made or
have the status described in such Schedule 6.4, (ii) filings to
release Liens to the extent that the holders of such Liens have agreed in
writing with the Administrative Agent to release such Liens, (iii) filings
to perfect the Liens created by the Collateral Documents and (iv) consents,
authorizations, filings, notices or other acts which have been obtained as and
when required or the failure to make or obtain could not reasonably be expected
to have a Material Adverse Effect. This Credit Agreement has been, and each
other Credit Document to which any Credit Party is a party will be, duly
executed and delivered on behalf of the Credit Parties. This Credit Agreement
constitutes, and each other Credit Document to which any Credit Party is a
party when executed and delivered will constitute, a legal, valid and binding
obligation of such Credit Party enforceable against such party in accordance
with its terms, except as enforceability 


 


76

















 


may be limited by applicable
bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors’ rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law) and by an implied covenant of good faith and fair dealing.


 


6.5.   
NO CONFLICTS.


 


Neither the execution and delivery of the Credit
Documents, nor the consummation of the transactions contemplated therein, nor
performance of and compliance with the terms and provisions thereof by such
Credit Party will (a) violate or conflict with any provision of its
articles or certificate of incorporation or bylaws or other organizational or
governing documents of such Person, (b) violate, contravene or materially
conflict with any material Requirement of Law or any other material law,
regulation (including, without limitation, Regulation U or Regulation X),
order, writ, judgment, injunction, decree or permit applicable to it, (c) violate,
contravene or conflict with contractual provisions of, or cause an event of
default under, any indenture, loan agreement, mortgage, deed of trust, contract
or other agreement or instrument to which it is a party or by which it may be
bound, the violation of which could reasonably be expected to have a Material
Adverse Effect, or (d) result in or require the creation of any Lien
(other than those contemplated in or created in connection with the Credit
Documents) upon or with respect to its properties.


 


6.6.   
NO DEFAULT.


 


No Consolidated Party is in default in any respect
under any contract, lease, loan agreement, indenture, mortgage, security
agreement or other agreement or obligation to which it is a party or by which
any of its properties is bound which default could reasonably be expected to
have a Material Adverse Effect.


 


6.7.   
OWNERSHIP.


 


Each Consolidated Party is the owner of, and has
good and marketable title to, all of its respective assets (including
Intellectual Property) owned by it necessary for the conduct of its business,
except for minor defects in title that do not materially interfere with its
ability to conduct its business or to utilize such assets for their intended
purposes and none of such assets or Intellectual Property is subject to any
Lien other than Permitted Liens.


 


6.8.   
INDEBTEDNESS.


 


Except as otherwise permitted under Section 8.1,
the Consolidated Parties have no Indebtedness.


 


6.9.   
LITIGATION.


 


Except as disclosed in Schedule
6.9, there does not exist any pending or, to the knowledge of any Consolidated
Party, threatened action, suit or legal, equitable, arbitration or
administrative proceeding against any Consolidated Party which could reasonably
be expected to have a Material Adverse Effect.


 


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6.10.   
TAXES.


 


Each Consolidated Party has filed, or caused to be
filed, all material tax returns (Federal, state, local and foreign) required to
be filed and paid (a) all amounts of taxes shown thereon to be due
(including interest and penalties) and (b) all other material taxes, fees,
assessments and other governmental charges (including mortgage recording taxes,
documentary stamp taxes and intangibles taxes) owing by it, except for such
taxes (i) which are not yet delinquent or (ii) that are being
contested in good faith and by proper proceedings, and against which adequate
reserves are being maintained in accordance with GAAP, or (iii) the
failure of which to pay could reasonably be expected to result in a Material
Adverse Effect. No Credit Party is aware as of the Closing Date of any material
proposed tax assessments against it or any other Consolidated Party.


 


6.11.   
COMPLIANCE WITH LAW.


 


Each Consolidated
Party is in compliance with all Requirements of Law applicable to it, or to its
properties, unless such failure to comply could not reasonably be expected to
have a Material Adverse Effect. Without limiting the generality of the
preceding sentence, (i) the Consolidated Parties have produced and
distributed and are producing and distributing food products that are in
compliance with the Food Security Act, FFDCA and all other applicable federal
and state laws governing the production of food, and all applicable regulations
and administrative interpretations promulgated under any such laws except for
any violations or failures which could not reasonably be expected to have a
Material Adverse Effect and (ii) none of the Consolidated Parties has
violated or failed to comply with PACA or similar laws or regulations
applicable to it, except for any violation or failure which could not reasonably
be expected to have a Material Adverse Effect.


 


6.12.   
ERISA.


 


Except as
disclosed and described in Schedule 6.12 attached hereto or except as
could not reasonably be expected to result in a Material Adverse Effect:


 


(a)                                  During the five-year period prior to
the date on which this representation is made or deemed made: (i) no ERISA
Event has occurred, and, to the knowledge of the Executive Officers of the
Credit Parties, no event or condition has occurred or exists as a result of
which any ERISA Event could reasonably be expected to occur, with respect to
any Plan; (ii) no “accumulated funding deficiency,” as such term is
defined in Section 302 of ERISA and Section 412 of the Code, whether
or not waived, has occurred with respect to any Plan; (iii) each Plan has
been maintained, operated, and funded in compliance with its own terms and in
material compliance with the provisions of ERISA, the Code, and any other
applicable Federal or state laws; and no Lien in favor of the PBGC or a Plan
has arisen or is reasonably likely to arise on account of any Plan (other than
a Permitted Lien).


 


(b)                                 The actuarial present value of all “benefit
liabilities” (as defined in Section 4001(a)(16) of ERISA), whether or not
vested, under each Single Employer Plan, as of the last annual valuation date
prior to the date on which this representation is made or deemed made
(determined, in each case, in accordance with Financial Accounting Standards
Board Statement 


 


78

















 


87, utilizing
the actuarial assumptions used in such Plan’s most recent actuarial valuation
report), did not exceed as of such valuation date the fair market value of the
assets of such Plan by such amount as could reasonably be expected to have a
Material Adverse Effect.


 


(c)                                  Neither any Consolidated Party nor any
ERISA Affiliate has received any notification that any Multiemployer Plan is in
reorganization (within the meaning of Section 4241 of ERISA), is insolvent
(within the meaning of Section 4245 of ERISA), or has been terminated
(within the meaning of Title IV of ERISA), and no Multiemployer Plan is, to the
knowledge of the Executive Officers of the Credit Parties, reasonably expected
to be in reorganization, insolvent, or terminated.


 


(d)                                 No prohibited transaction (within the
meaning of Section 406 of ERISA or Section 4975 of the Code) or
breach of fiduciary responsibility has occurred with respect to a Plan which
has subjected or may subject any Consolidated Party or any ERISA Affiliate to
any liability under Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975
of the Code, or under any agreement or other instrument pursuant to which any
Consolidated Party or any ERISA Affiliate has agreed or is required to
indemnify any Person against any such liability.


 


(e)                                  Neither any Consolidated Party nor any
ERISA Affiliate has any material liability with respect to “expected
post-retirement benefit obligations” within the meaning of the Financial
Accounting Standards Board Statement 106. Each Plan which is a welfare plan (as
defined in Section 3(1) of ERISA) to which Sections 601-609 of ERISA
and Section 4980B of the Code apply has been administered in compliance in
all material respects with the requirements of such sections.


 


(f)                                    Neither the execution and delivery of
this Credit Agreement nor the consummation of the financing transactions
contemplated hereunder will involve any transaction which is subject to the
prohibitions of Sections 404, 406 or 407 of ERISA or in connection with which a
tax could be imposed pursuant to Section 4975 of the Code. The
representation by the Credit Parties in the preceding sentence is made in
reliance upon and subject to the accuracy of the Lenders’ representation in Section 11.15
with respect to their source of funds.


 


6.13.   
CORPORATE STRUCTURE; CAPITAL STOCK, ETC.


 


The corporate capital and ownership structure of the
Consolidated Parties as of the Closing Date after giving effect to the
Transaction is as described in Schedule 6.13A. Set forth on Schedule
6.13B is a complete and accurate list as of the Closing Date with respect to
the Borrower and each of its direct and indirect Subsidiaries of (i) jurisdiction
of incorporation, (ii) number of shares of each class of Capital Stock
outstanding, (iii) number and percentage of outstanding shares of each
class owned (directly or indirectly) by the Consolidated Parties and (iv) number
and effect, if exercised, of all outstanding options, warrants, rights of
conversion or purchase and all other similar rights with respect thereto as of
the Closing Date. As of the Closing Date, the outstanding Capital Stock of all
such Persons is validly issued, fully paid and (to the extent such concept is
applicable) non-assessable and is owned by the Consolidated Parties, directly
or indirectly, in the manner set forth on Schedule 6.13B, free and clear
of all Liens (other than those arising under or contemplated in connection with
the Credit Documents). Other than as set forth in Schedule 6.13B, as of
the Closing Date neither the Borrower nor any of 


 


79

















 


its Subsidiaries has
outstanding any securities convertible into or exchangeable for its Capital
Stock nor does any such Person have outstanding any rights to subscribe for or
to purchase or any options for the purchase of, or any agreements providing for
the issuance (contingent or otherwise) of, or any calls, commitments or claims
of any character relating to its Capital Stock.


 


6.14.   
GOVERNMENTAL REGULATIONS, ETC.


 


(a)                                  None of the transactions contemplated
by this Credit Agreement (including, without limitation, the direct or indirect
use of the proceeds of the Loans) will violate or result in a violation of the
Securities Act, the Securities Exchange Act or any of Regulations U and X. If
requested by any Lender or the Administrative Agent, the Borrower will furnish
to the Administrative Agent and each Lender a statement, in conformity with the
requirements of FR Form U-1 referred to in Regulation U, that no part of
the Letters of Credit or proceeds of the Loans will be used, directly or
indirectly, for the purpose of “buying” or “carrying” any “margin stock” within
the meaning of Regulations U and X, or for the purpose of purchasing or
carrying or trading in any securities.


 


(b)                                 None of the Consolidated Parties is (i) required
to be registered as an “investment company”, or a company “controlled” by “investment
company”, within the meaning of the Investment Company Act of 1940, as amended
or (ii) subject to regulation under any other Federal or state statute or
regulation which limits its ability to incur Indebtedness.


 


6.15.   
PURPOSE OF LOANS AND LETTERS OF CREDIT.


 


The proceeds of the Loans hereunder shall be used
solely by the Borrower to effect the Transaction, to pay fees and expenses
related to the Transaction and to provide for working capital and general
corporate purposes of the Borrower and its Subsidiaries (including, without
limitation, Permitted Acquisitions). The Letters of Credit shall be used only
for or in connection with appeal bonds, reimbursement obligations arising in
connection with surety and reclamation bonds, reinsurance, domestic or
international trade transactions, workers compensation and obligations not
otherwise aforementioned relating to transactions entered into by the applicable
account party in the ordinary course of business.


 


6.16.   
ENVIRONMENTAL MATTERS.


 


Except as disclosed and described in Schedule
6.16 attached hereto or except as could not reasonably be expected to result in
a Material Adverse Effect:


 


(a)                                  Each of the Real Properties and all
operations at the Real Properties are in compliance with all applicable
Environmental Laws, there is no violation of any Environmental Law with respect
to the Real Properties or the Businesses, and there are no conditions relating
to the Real Properties or the Businesses that could give rise to liability
under any applicable Environmental Laws.


 


(b)                                 None of the Real Properties contains,
or has previously contained, any Materials of Environmental Concern at, on or
under the Real Properties in amounts or concentrations that constitute or
constituted a violation of, or could give rise to liability under,
Environmental Laws.


 


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(c)                                  No Consolidated Party has received any
written or verbal notice of, or inquiry from any Governmental Authority
regarding, any violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Real Properties or the Businesses,
nor does any Executive Officer of any Credit Party have knowledge or reason to
believe that any such notice will be received or is being threatened.


 


(d)                                 Materials of Environmental Concern have
not been transported or disposed of from the Real Properties, or generated,
treated, stored or disposed of at, on or under any of the Real Properties or
any other location, in each case by or on behalf of any Consolidated Party in violation
of, or in a manner that could give rise to liability under, any applicable
Environmental Law.


 


(e)                                  No judicial proceeding or governmental
or administrative action is pending or, to the best knowledge of the Executive
Officers of the Credit Parties, threatened, under any Environmental Law to
which any Consolidated Party is or will be named as a party, nor are there any
consent decrees or other decrees, consent orders, administrative orders or
other orders, or other administrative or judicial requirements outstanding
under any Environmental Law with respect to the Consolidated Parties, the Real
Properties or the Businesses.


 


(f)                                    There has been no release, or threat of
release, of Materials of Environmental Concern at or from the Real Properties,
or arising from or related to the operations (including, without limitation,
disposal) of any Consolidated Party in connection with the Real Properties or
otherwise in connection with the Businesses, in violation of or in amounts or
in a manner that could reasonably be expected to give rise to liability under
Environmental Laws.


 


6.17.   
INTELLECTUAL PROPERTY.


 


Each Consolidated Party owns, or has the legal right
to use, all trademarks, service marks, trade names, trade dress, patents,
copyrights, technology, know how and processes (the “INTELLECTUAL PROPERTY”)
necessary for each of them to conduct its business as currently conducted
except for those the failure to own or have such legal right to use could not
reasonably be expected to have a Material Adverse Effect. Set forth on Schedule
6.17 as of the Closing Date is a list of all Intellectual Property registered
or pending registration with the United States Copyright Office or the United
States Patent and Trademark Office and owned by each Consolidated Party. Except
as provided on Schedule 6.17, no claim has been asserted and is pending
by any Person challenging or questioning the use of the Intellectual Property
or the validity or effectiveness of the Intellectual Property, nor does any
Credit Party know of any such claim, and, to the knowledge of the Executive
Officers of the Credit Parties, the use of the Intellectual Property by any
Consolidated Party or the granting of a right or a license in respect of the
Intellectual Property from any Consolidated Party does not infringe on the
rights of any Person, except for such claims and infringements that, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.


 


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6.18.   
SOLVENCY.


 


The Credit Parties are Solvent on a consolidated
basis.


 


6.19.   
INVESTMENTS.


 


All Investments of each Consolidated Party are
Permitted Investments.


 


6.20.   
BUSINESS LOCATIONS.


 


Set forth on Schedule 6.20(a) is a list
of all Real Properties located in the United States as of the Closing Date. Set
forth on Schedule 6.20(c) is the chief executive office,
jurisdiction of incorporation or formation and principal place of business of
each Consolidated Party as of the Closing Date.


 


6.21.   
DISCLOSURE.


 


Neither this Credit Agreement nor any financial
statements (other than projections, budgets and other estimates or information
of a general economic nature) delivered to the Lenders nor any other document,
certificate or statement furnished to the Lenders by or on behalf of any
Consolidated Party in connection with the transactions contemplated hereby,
when taken as a whole, contains as of the applicable delivery date any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained therein or herein not materially
misleading in light of the circumstances under which such statements were made.


 


6.22.   
BROKERS’ FEES.


 


Except as set forth on Schedule 6.22, no
Consolidated Party has any obligation to any Person in respect of any finder’s,
broker’s, investment banking or other similar fee in connection with any of the
transactions contemplated under the Credit Documents other than the
Administrative Agent’s Fee Letter.


 


6.23.   
LABOR MATTERS.


 


Except as set forth on Schedule 6.23, there
are no collective bargaining agreements or Multiemployer Plans covering the
employees of a Consolidated Party as of the Closing Date. None of the
Consolidated Parties has suffered any strikes, walkouts, work stoppages or
other material labor difficulty during the five years prior to the Closing Date
except, with respect to any of the foregoing, which could reasonably be
expected to have a Material Adverse Effect.


 


6.24.   
NATURE OF BUSINESS.


 


As of the Closing Date, the Borrower is principally
engaged in the business of producing and marketing processed frozen vegetables
and other food products.


 


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6.25.   
SENIORITY.


 


The Credit Party Obligations constitute “Senior Debt”
or “Guarantor Senior Debt” (however denominated), as applicable, under when
executed, any Subordinated Debt Indenture. 
The Credit Party Obligations of the Borrower under clause (i) of
the definition thereof constitute “Senior Debt” under the GLK Note.


 


SECTION VII


 


AFFIRMATIVE
COVENANTS


 


Each Credit Party hereby covenants and agrees that
until such time as the Credit Agreement has been terminated in accordance with
the terms of Section 11.13:


 


7.1.   
INFORMATION COVENANTS.


 


The Credit Parties will furnish, or cause to be
furnished, to the Administrative Agent:


 


(a)                                  ANNUAL FINANCIAL STATEMENTS. As soon as
available, and in any event within 105 days after the close of each fiscal year
of the Consolidated Parties, a consolidated balance sheet of the Consolidated
Parties as of the end of such fiscal year, together with related consolidated
statements of income and cash flows for such fiscal year, in each case setting
forth in comparative form consolidated figures for the preceding fiscal year,
all such financial information described above to be in reasonable form and
detail and audited by Deloitte and
Touche LLP (or by any
of PricewaterhouseCoopers LLP, Ernst and
Young or KPMG Peat Marwick)
or any other independent certified public accountants of recognized national
standing reasonably acceptable to the Administrative Agent and whose opinion
shall be to the effect that such financial statements have been prepared in
accordance with GAAP (except for changes with which such accountants concur)
and shall not be limited as to the scope of the audit or qualified as to the
status of the Consolidated Parties as a going concern or any other material
qualification or exception.


 


(b)                                 QUARTERLY FINANCIAL STATEMENTS. As soon
as available, and in any event within 45 days (105 days in the case of the last
fiscal quarter) after the close of each fiscal quarter of each fiscal year of
the Consolidated Parties, a consolidated balance sheet of the Consolidated
Parties as of the end of such fiscal quarter, together with related consolidated
statements of income and cash flows for such fiscal quarter, in each case
setting forth in comparative form consolidated figures for the corresponding
period of the preceding fiscal year, all such financial information described
above to be in reasonable form and detail and reasonably acceptable to the
Administrative Agent, and accompanied by a certificate of an Executive Officer
of the Borrower to the effect that such quarterly financial statements fairly
present in all material respects the financial condition of the Consolidated
Parties and have been prepared in accordance with GAAP, subject to changes
resulting from audit and normal year-end audit adjustments and the absence of
certain footnotes.


 


(c)                                  OFFICER’S CERTIFICATE. At the time of
delivery of the financial statements provided for in Sections 7.1(a) and
7.1(b) above, a certificate of an Executive Officer of the Borrower
substantially in the form of Exhibit 7.1(c), (i) to the extent
the covenant in 


 


83

















 


Section 7.10
is applicable, providing a detailed calculation of Consolidated EBITDA (with a
break-out of each of the components of the definition thereof set forth in Section 1.1)
for the applicable fiscal period, (ii) to the extent the covenant in Section 7.10
is applicable, demonstrating the Consolidated Net Senior Secured Leverage Ratio
and (iii) stating that no Default or Event of Default exists as of the end
of the applicable fiscal period, or if any Default or Event of Default does
exist, specifying the nature and extent thereof and what action the Credit
Parties propose to take with respect thereto.


 


(d)                                 ANNUAL BUSINESS PLAN AND BUDGETS.
Within 45 days after the end of each fiscal year of the Borrower an annual
business plan and budget of the Consolidated Parties containing, among other
things, projected financial statements for the next fiscal year.


 


(e)                                  COMPLIANCE WITH CERTAIN PROVISIONS OF
THE CREDIT AGREEMENT. Within 105 days after the end of each fiscal year of the
Credit Parties, a certificate (i) providing a detailed calculation of
Excess Cash Flow (with a break-out of each of the components of the definition
thereof set forth in Section 1.1) and (ii) containing information
regarding the amount of all Asset Dispositions, Debt Issuances and Equity
Issuances that were made during the prior fiscal year.


 


(f)                                    ACCOUNTANT’S CERTIFICATE. Within the
period for delivery of the annual financial statements provided in Section 7.1(a),
a certificate of the accountants conducting the annual audit stating that they
have reviewed this Credit Agreement as it relates to accounting matters and
stating further whether, in the course of their audit, they have become aware
of any Default or Event of Default with respect to such accounting matters and,
if any such Default or Event of Default exists, specifying the nature and
extent thereof, provided that such accountants shall not incur any
liability to the Lenders by reason of any failure to obtain knowledge of any
such Default or Event of Default that would not be disclosed in the course of
their audit examination.


 


(g)                                 REPORTS. Promptly upon transmission or
receipt thereof, (i) copies of any filings and registrations with, and
reports to or from, the Securities and Exchange Commission, or any successor
agency, and copies of all financial statements, proxy statements, notices and
reports as any Consolidated Party shall send to its shareholders generally or
to a holder of any Indebtedness owed by any Consolidated Party in its capacity
as such a holder and (ii) upon the reasonable request of the
Administrative Agent, all written reports and written information to and from
the United States Environmental Protection Agency, or any state or local agency
responsible for environmental matters, the United States Occupational Health
and Safety Administration, or any state or local agency responsible for health
and safety matters, or any successor agencies or authorities concerning
environmental, health or safety matters.


 


(h)                                 NOTICES. Upon any Executive Officer of
a Credit Party obtaining knowledge thereof, the Credit Parties will give
written notice to the Administrative Agent immediately of (i) the
occurrence of an event or condition consisting of a Default or Event of
Default, specifying the nature and existence thereof and what action the Credit
Parties propose to take with respect thereto, and (ii) the occurrence of
any of the following with respect to any Consolidated Party (A) the
pendency or commencement of any litigation, arbitral or governmental proceeding
against such Person which is reasonably likely to have a Material 


 


84

















 


Adverse
Effect, (B) the institution of any proceedings against such Person with
respect to, or the receipt of notice by such Person of potential liability or
responsibility for violation, or alleged violation of any Federal, state or
local law, rule or regulation, including but not limited to, Environmental
Laws, where such liability or the violation of which could reasonably be
expected to have a Material Adverse Effect or (C) the receipt by any
Consolidated Party of notice from any regulatory agency or authority having
jurisdiction in the matter regarding a material investigation of any of such
Person under PACA.


 


(i)                                     ERISA. Upon any Executive Officer of a
Credit Party obtaining knowledge thereof, the Credit Parties will give written
notice to the Administrative Agent promptly (and in any event within thirty
Business Days) of any of the following which could reasonably be expected to
have a Material Adverse Effect: (i) any event or condition, including, but
not limited to, any Reportable Event, that constitutes, or might reasonably
lead to, an ERISA Event; (ii) with respect to any Multiemployer Plan, the
receipt of notice as prescribed in ERISA or otherwise of any withdrawal
liability assessed against the Credit Parties or any ERISA Affiliates, or of a
determination that any Multiemployer Plan is in reorganization or insolvent
(both within the meaning of Title IV of ERISA); (iii) the failure to make
full payment on or before the due date (including extensions) thereof of all
amounts which any Consolidated Party or any ERISA Affiliate is required to
contribute to each Plan pursuant to its terms and as required to meet the
minimum funding standard set forth in ERISA and the Code with respect thereto;
or (iv) any change in the funding status of any Plan as of the end of the
applicable Plan year that could have a Material Adverse Effect, together with a
description of any such event or condition or a copy of any such notice and a
statement by an Executive Officer of the Borrower briefly setting forth the
details regarding such event, condition, or notice, and the action, if any,
which has been or is being taken or is proposed to be taken by the Credit Parties
with respect thereto. Promptly upon request, the Credit Parties shall furnish
the Administrative Agent and the Lenders with such additional information
concerning any Plan as may be reasonably requested, including, but not limited
to, copies of each annual report/return (Form 5500 series), as well as all
schedules and attachments thereto required to be filed with the Department of
Labor and/or the Internal Revenue Service pursuant to ERISA and the Code,
respectively, for each “plan year” (within the meaning of Section 3(39) of
ERISA).


 


(j)                                     ENVIRONMENTAL. Upon the reasonable
written request of the Administrative Agent following the occurrence of any
event or the discovery of any condition which the Administrative Agent or the
Required Lenders reasonably believe(s) has caused (or could cause) the
representations and warranties set forth in Section 6.16 to be untrue, the
Credit Parties will furnish or cause to be furnished to the Administrative
Agent, at the Credit Parties’ expense, a report of an environmental assessment
of reasonable scope, form and depth, (including, where appropriate, invasive
soil or groundwater sampling) by a consultant reasonably acceptable to the
Administrative Agent as to the subject matter of such possible breach. If the
Credit Parties fail to deliver such an environmental report within seventy-five
(75) days after receipt of such written request then the Administrative Agent
may arrange for same, and the Consolidated Parties hereby grant to the
Administrative Agent and their representatives reasonable access to the Real
Properties to reasonably undertake such an assessment (including, where
appropriate, invasive soil or groundwater sampling). The reasonable cost of any
assessment requested by the Administrative Agent pursuant to this provision
will be payable by the Credit Parties on demand and added to the obligations
secured by the Collateral Documents.


 


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(k)                                  ADDITIONAL PATENTS AND TRADEMARKS. At
the time of delivery of the financial statements and reports provided for in Section 7.1(a),
a report signed by an Executive Officer of the Borrower setting forth (i) a
list of registration numbers for all federally registered Intellectual Property
awarded to any Credit Party since the last day of the immediately preceding
fiscal year and (ii) a list of all applications for federal registration
of the Intellectual Property submitted by any Credit Party to the U.S. Patent
and Trademark Office or the U.S. Copyright Office since the last day of the
immediately preceding fiscal year and the status of each such application, all
in such form as shall be reasonably satisfactory to the Administrative Agent.


 


(l)                                     OTHER INFORMATION. With reasonable
promptness upon any such request, such other information regarding the
business, properties or financial condition of any Consolidated Party as the
Administrative Agent or the Required Lenders may reasonably request.


 


Each notice
delivered under this Section shall be accompanied by a written statement
of an Executive Officer of the Borrower setting forth the details of the event
or development requiring such notice and any action taken or proposed to be
taken with respect thereto.  Documents
required to be delivered pursuant to this Section 7.1 may be delivered electronically
and, if so delivered, shall be deemed to have been delivered on the date (i) on
which the Borrower posts such documents, or provides a link thereto, on the
Borrower’s website or (ii) on which such documents are posted on the
Borrower’s behalf on an Internet or Intranet website, if any, to which the
Administrative Agent has access (whether a commercial third-party website or a
website sponsored by the Administrative Agent), provided that (A) the
Borrower shall, at the request of the Administrative Agent, continue to deliver
copies (which delivery may be by electronic transmission (including Adobe pdf
copy)) of such documents to the Administrative Agent and (B) the Borrower
shall notify (which notification may be by facsimile or electronic transmission
(including Adobe pdf copy)) the Administrative Agent (and each Lender if there
is, at the time, no incumbent Administrative Agent) of the posting of any such
documents on any website.  The
Administrative Agent shall notify the Lenders of each notice delivered under
this Section.


 


7.2.   
PRESERVATION OF EXISTENCE AND FRANCHISES.


 


Except as a result of or in connection with a
dissolution, merger or disposition of a Subsidiary not prohibited by Section 8.4
or Section 8.5, each Credit Party will, and will cause each of its
Subsidiaries to, do all things necessary to preserve and keep in full force and
effect its existence, rights, franchises except where the failure to do so
could not reasonably be expected to have a Material Adverse Effect.


 


7.3.   
BOOKS AND RECORDS.


 


Each Credit Party will, and will cause each of its
Subsidiaries to, keep complete and accurate books and records of its
transactions in accordance with good accounting practices on the basis of GAAP
(including the establishment and maintenance of appropriate reserves).


 


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7.4.   
COMPLIANCE WITH LAW.


 


Each Credit Party will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and orders, and all
applicable restrictions (including PACA, the Food Security Act, the FFDCA, all
other applicable federal and state laws governing the production of food, and
all applicable regulations and administrative interpretations promulgated under
any such laws) imposed by all Governmental Authorities, applicable to it and
its Property to the extent that noncompliance with any such law, rule,
regulation, order or restriction could reasonably be expected to have a
Material Adverse Effect.


 


7.5.    PAYMENT OF TAXES AND OTHER
CLAIMS.


 


Each Credit Party will, and will cause each of its
Subsidiaries to, pay and discharge (a) all material taxes, assessments and
governmental charges or levies imposed upon it, or upon its income or profits,
or upon any of its properties, before they shall become delinquent and (b) all
material lawful claims (including claims for labor, materials and supplies)
which, if unpaid, might give rise to a Lien upon any of its properties (other
than a Permitted Lien); provided, however, that no
Consolidated Party shall be required to pay any such tax, assessment, charge,
levy or claim which (i) is being contested in good faith by appropriate
proceedings and as to which adequate reserves therefor have been established in
accordance with GAAP, unless the failure to make any such payment could give
rise to an immediate right to foreclose on a Lien securing such amounts or (ii) could
reasonably be expected to have a Material Adverse Effect.


 


7.6.   
INSURANCE.


 


(a)                                  Each Credit Party will, and will cause
each of its Subsidiaries to, at all times maintain in full force and effect
insurance (including worker’s compensation insurance, liability insurance,
casualty insurance and business interruption insurance) in such amounts,
covering such risks and liabilities and with such deductibles or self-insurance
retentions as are in accordance with customary industry practice. The
Administrative Agent shall be named as loss payee or mortgagee, as its interest
may appear, and/or additional insured with respect to any such insurance providing
coverage in respect of any Collateral, and each provider of any such insurance
shall agree, by endorsement upon the policy or policies issued by it or by
independent instruments furnished to the Administrative Agent, that it will
give the Administrative Agent thirty (30) days prior written notice before any
such policy or policies shall be amended or cancelled. The insurance coverage
of the Consolidated Parties as of the Closing Date is outlined as to carrier,
policy number, expiration date, type and amount on Schedule 7.6.


 


(b)                                 In the event that the Consolidated
Parties receive Net Cash Proceeds from property damage or casualty insurance in
excess of $1,000,000 in aggregate amount during any fiscal year of the
Consolidated Parties (“EXCESS PROCEEDS”) on account of Involuntary
Dispositions, the Credit Parties shall, within the period of 540 days following
the date of receipt of such Excess Proceeds, either (i) prepay the Loans
(and cash collateralize the LOC Obligations) in accordance with the terms of Section 3.3(b)(iii)(B) or
(ii) apply (or cause to be applied) an amount equal to such Excess
Proceeds to make Eligible Reinvestments (including but not limited to the
repair or replacement of the related Property); provided, however,
that such Consolidated Party need not repair or replace the Property of such
Consolidated Party so lost, damaged or destroyed to the extent the failure to
make such repair or replacement (i) is desirable to the proper conduct of
the business of such Consolidated Party and otherwise in the best 


 


87

















 


interest of
such Consolidated Party; and (ii) would not materially impair the rights
and benefits of the Administrative Agent or the Lenders under the Collateral
Documents or any other Credit Document. All property damage or casualty
insurance proceeds shall be subject to the security interest of the
Administrative Agent (for the ratable benefit of the Lenders) under the
Collateral Documents. Pending final application of any Excess Proceeds, the
Credit Parties may apply such Excess Proceeds to temporarily reduce the
Revolving Loans or to make Permitted Investments.


 


7.7.   
MAINTENANCE OF PROPERTY.


 


Each Credit Party will, and will cause each of its
Subsidiaries to, maintain and preserve its properties and equipment material to
the conduct of its business in good repair, working order and condition, normal
wear and tear and Involuntary Disposition excepted, and will make, or cause to
be made, in such properties and equipment from time to time all repairs,
renewals, replacements, extensions, additions, betterments and improvements
thereto as may reasonably be needed or proper, to the extent and in the manner
customary for companies in similar businesses and to the extent necessary in
the reasonable business judgment of such Person.


 


7.8.   
USE OF PROCEEDS.


 


The Borrower will use the proceeds of the Loans and
will use the Letters of Credit solely for the purposes set forth in Section 6.15.


 


7.9.   
AUDITS/INSPECTIONS.


 


Upon reasonable notice and during normal business
hours, each Credit Party will, and will cause each of its Subsidiaries to,
permit representatives appointed by the Administrative Agent, including,
without limitation, independent accountants, agents, attorneys, and appraisers
to visit and inspect its property, including its books and records to the
extent allowed by applicable law and regulation, its accounts receivable and
inventory, its facilities and its other business assets, and to make
photocopies thereof and to write down and record any information such
representative obtains and shall permit the Administrative Agent or its
representatives to investigate and verify the accuracy of information provided
to the Lenders and to discuss all such matters with the officers, employees and
representatives of such Person; provided, however, that,
unless an Event of Default shall exist, the Administrative Agent shall not
exercise its rights under this sentence more often than two times during any
calendar year and only one such time shall be at the Credit Parties’ expense.
Notwithstanding the foregoing, no material protected by an attorney-client
privilege shall be required to be disclosed pursuant to this Section 7.9; provided, however,
that, in the event that any Credit Party claims that any materials requested
for review, investigation or discussion by the Administrative Agent or any of
its representatives pursuant to this Section 7.9 is protected by an
attorney-client privilege, then such Credit Party shall (i) provide the
Administrative Agent with a reasonably acceptable basis for the assertion of
the privilege, (ii) remove or redact only those portions of the related
materials deemed to be privileged and (iii) in good faith cooperate with
the Administrative Agent to determine a method by which the information which
the Administrative Agent deems necessary to review, investigate or discuss may
be obtained by the Administrative Agent in an alternative manner which will not
jeopardize any attorney-client privilege.


 


88














 


7.10.   
FINANCIAL COVENANT.


 


CONSOLIDATED
NET SENIOR SECURED LEVERAGE RATIO.


 


When
any (i) Revolving Loans, (ii) Swingline Loans or (iii) LOC
Obligations (other than LOC Obligations that are cash-collateralized) are
outstanding on the last day of any fiscal quarter, then Parent shall not,
without the approval of the Required Revolving Lenders, permit the Consolidated
Net Senior Secured Leverage Ratio, as of the last day of such fiscal quarter,
to exceed the applicable ratio set forth below; provided that this
covenant will only apply to the Revolving Facility (except as otherwise
provided in Section 9.1(c)(ii)):


 


	
  Period

  	
   

  	
  Maximum Consolidated Net

  Senior Secured Leverage Ratio

  
	
   

  	
   

  	
   

  
	
  Closing Date — 6/27/08

  	
   

  	
  5.50 to 1.0

  
	
  6/28/08 — 6/26/09

  	
   

  	
  5.25 to 1.0

  
	
  6/27/09 — 6/25/10

  	
   

  	
  5.00 to 1.0

  
	
  6/26/10 — 6/24/11

  	
   

  	
  4.75 to 1.0

  
	
  6/25/11—Maturity Date

  	
   

  	
  4.50 to 1.0

  



 


7.11.   
ADDITIONAL GUARANTORS.


 


As soon as practicable and in any event within 30
days after (a) any Person becomes a direct or indirect Material Domestic
Subsidiary of the Parent or (b) any direct or indirect Subsidiary of the
Parent guarantees the Borrower’s obligations under any Junior Financing
Documentation, the Credit Parties shall (i) provide the Administrative
Agent with written notice thereof and shall cause such Person to execute a
Joinder Agreement in substantially the same form as Exhibit 7.11, (ii) deliver
such other documentation as the Administrative Agent may reasonably request in
connection with the foregoing, including, without limitation, customary
favorable opinions of counsel to such Person (which shall cover, among other
things, the legality, validity, binding effect and enforceability of the
Joinder Agreement) and other items of the types required to be delivered
pursuant to Section 5.1(b), all in form, content and scope reasonably
satisfactory to the Administrative Agent and (iii) otherwise comply with Section 7.12
in respect of such Person.


 


7.12.   
PLEDGED ASSETS.


 


Each Credit Party will (i) cause all of its
owned real and personal Property and shall use commercially reasonable efforts
to cause all of its leased real and personal Property, in each case, other than
Excluded Property to be subject at all times to first priority, perfected and,
in the case of real Property (whether leased or owned), title insured Liens in
favor of the Administrative Agent to secure the Credit Party Obligations
pursuant to the terms and conditions of the Collateral Documents or, with
respect to any such Property acquired subsequent to the Closing Date, such other
additional security documents as the Administrative Agent shall reasonably
request, subject in any case to Permitted Liens and (ii) deliver such
other 


 


89

















 


documentation as the
Administrative Agent may reasonably request in connection with the foregoing,
including, without limitation, appropriate UCC-1 financing statements, real
estate title insurance policies, surveys, environmental reports, landlord’s
waivers, certified resolutions and other organizational and authorizing
documents of such Person, customary favorable opinions of counsel to such
Person (which shall cover, among other things, the legality, validity, binding
effect and enforceability of the documentation referred to above and the
perfection of the Administrative Agent’s liens thereunder) and other items of
the types required to be delivered pursuant to Section 5.1(d) and (e) of
the Existing Credit Agreement, all in form, content and scope reasonably
satisfactory to the Administrative Agent. Without limiting the generality of
the above, the Credit Parties will cause


 


(A)                              100% of the
issued and outstanding Capital Stock of the Borrower;


 


(B)                                100% of the
issued and outstanding Capital Stock of each Domestic Subsidiary owned by the
Credit Parties; and


 


(C)                                65%  of the issued and outstanding Capital Stock
of each Material Foreign Subsidiary;


 


to be delivered to the Administrative Agent
(together with undated stock powers signed in blank (unless, with respect to a
Material Foreign Subsidiary, such stock powers are deemed unnecessary by the
Administrative Agent in its reasonable discretion under the law of the
jurisdiction of incorporation of such Person)) and pledged to the
Administrative Agent pursuant to an appropriate pledge agreement(s) in
substantially the form of the Pledge Agreement and otherwise in form reasonably
acceptable to the Administrative Agent.


 


Notwithstanding the
foregoing, the Credit Parties shall not be required to grant mortgages on (i) real
property located in the State of New York owned by the Credit Parties unless
requested by the Administrative Agent or the Required Lenders [or (ii) the
property located at 73309 M-40 Highway, Lawton Michigan until all existing
mortgages thereon have been released].


 


7.13.   
FURTHER ASSURANCES.


 


To the extent not delivered on the Closing Date, the
Borrower shall deliver to the Administrative Agent within 90 days after the
Closing Date such documents, instruments and other items of the types required
to be delivered pursuant to (i) Sections 5.1(a) and 5.1(e) with
respect to the Real Property identified as item [   ] on subpart
(1) of Schedule 6.20(a) and (ii) Section 5.1(b)(iv).


 


SECTION VIII


 


NEGATIVE
COVENANTS


 


Each Credit Party hereby covenants and agrees that
until such time as the Credit Agreement has been terminated in accordance with
the terms of Section 11.13:


 


90

















 


8.1.   
INDEBTEDNESS.


 


The Credit Parties will not permit any Consolidated
Party to contract, create, incur, assume or permit to exist any Indebtedness,
except:


 


(a)                                  Indebtedness arising under this Credit
Agreement and the other Credit Documents (including the Incremental Term
Loans);


 


(b)                                 Indebtedness of the Borrower and its
Subsidiaries set forth in Schedule 8.1 (and renewals, refinancings and
extensions thereof on terms and conditions no less favorable to such Person
than such existing Indebtedness);


 


(c)                                  purchase money Indebtedness (including
obligations in respect of Capital Leases, Synthetic Leases and mortgage,
industrial revenue bond, industrial development bond and similar financings)
hereafter incurred by the Borrower or any of its Subsidiaries to finance the
purchase, repair or improvement of capital assets and real property or assumed
or acquired by any of the Consolidated Parties in connection with a Permitted
Investment, provided that (i) the total of all such Indebtedness
for all such Persons taken together shall not exceed an aggregate principal
amount of $20,000,000 at any one time outstanding; (ii) unless
non-recourse to the Consolidated Parties, such Indebtedness when incurred shall
not exceed the purchase price of the asset(s) financed; and (iii) no
such Indebtedness shall be refinanced for a principal amount in excess of the
principal balance outstanding thereon at the time of such refinancing;


 


(d)                                 obligations of any Consolidated Party
in respect of Hedging Agreements entered into in order to manage existing or
anticipated interest rate, exchange rate or commodity pricing risks and not for
speculative purposes;


 


(e)                                  Guaranty Obligations and intercompany
Indebtedness permitted under Section 8.6 and Section 8.7;


 


(f)                                    Indebtedness consisting of Qualified
Preferred Stock, Subordinated Debt and/or Senior Unsecured Debt; provided
that the Borrower shall have delivered to the Administrative Agent a Pro Forma
Compliance Certificate demonstrating that, upon giving effect on a Pro Forma
Basis to such transaction, the Consolidated Net Leverage Ratio would be less
than or equal to the applicable Consolidated Net Leverage Level at such time;


 


(g)                                 Indebtedness of Foreign Subsidiaries in
an aggregate principal amount at any time outstanding for all such Persons
taken together not exceeding the greater of (i) the Foreign Borrowing Base
as of the date of such incurrence or (ii) $20,000,000;


 


(h)                                 Indebtedness representing deferred
compensation to directors, former directors, employees or former employees of
the Consolidated Parties;


 


(i)                                     Unsecured Indebtedness consisting of
promissory notes issued by the Parent or the Borrower to current or former
officers, directors and employees, their respective estates, spouses or former
spouses to finance the purchase or redemption of Capital Stock of the 


 


91

















 


Parent or
Holdings LLC, provided that the aggregate principal amount of such
Indebtedness incurred in any fiscal year shall not exceed $5,000,000;


 


(j)                                     Indebtedness evidenced by the GLK Note;


 


(k)                                  Indebtedness incurred by any
Consolidated Party in connection with Permitted Acquisitions or Permitted Asset
Dispositions under agreements providing for indemnification, adjustment of
purchase price or similar obligations, or from guarantees or letters of credit,
surety bonds or performance bonds securing the performance of such Credit Party
pursuant to such agreements;


 


(l)                                     Indebtedness consisting of obligations
of any Consolidated Party under incentive, non-compete, consulting, deferred
compensation or other similar arrangements incurred by such Person in
connection with the Transaction (as defined in the Existing Credit Agreement)
and Permitted Acquisitions;


 


(m)                               Indebtedness incurred in connection
with the financing of insurance premiums;


 


(n)                                 Indebtedness in respect of netting
services, overdraft protections and similar arrangements in each case in connection
with deposit accounts;


 


(o)                                 [INTENTIONALLY OMITTED];


 


(p)                                 Qualified Preferred Stock and/or
Subordinated Debt so long as the Net Cash Proceeds thereof are concurrently
applied to the prepayment of the Loans in accordance with Sections 3.3(b)(iv) and
(v);


 


(q)                                 to the extent constituting
Indebtedness, obligations incurred in respect of Liens permitted under Section 8.2(e);
and


 


(r)                                    other Indebtedness in the aggregate
principal amount for all Consolidated Parties not to exceed $40,000,000 at any
time outstanding.


 


8.2.   
LIENS.


 


The Credit Parties will not permit any Consolidated
Party to contract, create, incur, assume or permit to exist any Lien with
respect to any of its Property, whether now owned or hereafter acquired, except
for:


 


(a)                                  Liens in favor of the Administrative
Agent to secure the Credit Party Obligations;


 


(b)                                 Liens existing as of the Closing Date
and set forth on Schedule 8.2; provided that no such Lien shall
at any time be extended to or cover any Property other than the Property subject
thereto on the Closing Date;


 


92

















 


(c)                                  Liens (other than Liens created or
imposed under ERISA) for taxes, assessments or governmental charges or levies
not yet delinquent or Liens for taxes being contested in good faith by
appropriate proceedings for which adequate reserves determined in accordance
with GAAP have been established (and as to which the Property subject to any
such Lien is not yet subject to foreclosure, sale or loss on account thereof)
or not otherwise required to be paid under Section 7.5;


 


(d)                                 statutory and contractual Liens of
landlords and Liens of carriers, warehousemen, mechanics, materialmen and
suppliers and other Liens imposed by law or pursuant to customary reservations
or retentions of title arising in the ordinary course of business, provided
that such Liens (i) secure only amounts not overdue by more than 30 days
or (ii) if more than 30 days overdue, are unfiled and no other action has
been taken to enforce the same or are being contested in good faith by
appropriate proceedings for which adequate reserves determined in accordance
with GAAP have been established (and as to which the Property subject to any
such Lien is not yet subject to foreclosure, sale or loss on account thereof) or
not otherwise required to be paid under Section 7.5;


 


(e)                                  Liens (other than Liens created or
imposed under ERISA) incurred or deposits made by any Consolidated Party in the
ordinary course of business in connection with workers’ compensation,
unemployment insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, bids, leases, government
contracts, performance, surety, appeal and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed
money);


 


(f)                                    Liens in connection with attachments or
judgments (including judgment or appeal bonds) provided that either (i) the
judgments secured shall, within 30 days after the entry thereof, have been
discharged or execution thereof stayed pending appeal, or shall have been
discharged within 30 days after the expiration of any such stay or (ii) the
judgments secured thereby do not constitute an Event of Default under Section 9.1(h);


 


(g)                                 easements, rights-of-way, covenants,
restrictions (including zoning and building code restrictions), minor defects
or irregularities in title and other similar charges or encumbrances not, in
any material respect, impairing the use of the encumbered Property for its
intended purposes;


 


(h)                                 Liens on Property of any Person
securing purchase money Indebtedness (including obligations in respect of
Capital Leases, Synthetic Leases and mortgage, industrial revenue bond,
industrial development bond and similar financings) of such Person permitted under
Section 8.1(c), provided that any such Lien attaches to such
Property concurrently with or within 90 days after the acquisition, repair,
replacement or improvement (as applicable) thereof;


 


(i)                                     leases, licenses, subleases or
sublicenses granted to others not interfering in any material respect with the
business of any Consolidated Party;


 


(j)                                     any interest or title of a lessor,
licensor, sublessor or sublicensor under, and Liens arising from UCC financing
statements (or equivalent filings, registrations or 


 


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agreements in
foreign jurisdictions) relating to, leases or licenses not prohibited by this
Credit Agreement;


 


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


 


(l)                                     Liens deemed to exist in connection
with Investments in repurchase agreements permitted under Section 8.6;


 


(m)                               normal and customary rights of setoff
upon deposits of cash in favor of banks or other depository institutions;


 


(n)                                 Liens of a collection bank arising
under Section 4-210 of the Uniform Commercial Code on items in the course
of collection;


 


(o)                                 Liens arising from operation of the
statutory trust under PACA or similar laws, provided that such Liens do
not secure past due account payable balances exceeding $10,000,000 in the
aggregate at any one time outstanding, unless, in respect of any such account
payables, (i) appropriate legal or administrative action has been commenced
and is being diligently pursued or defended by the applicable Consolidated
Party and (ii) the ability of the applicable vendor to enforce any such
Lien provided under PACA or similar laws has been stayed or otherwise legally
prohibited during the pendency of such action;


 


(p)                                 Liens on “farm products” (as defined in
the Food Security Act) to the extent, in the case of any such Lien, that such
Lien (i) was created by the Person (but not a Consolidated Party) which
sold such Property to the applicable Consolidated Party and (ii) follows
the Property by reason of the provisions of the Food Security Act
notwithstanding the transfer of title to such Property to such Consolidated
Party;


 


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


 


(r)                                    Liens on Property of any Foreign
Subsidiary securing Indebtedness of such Foreign Subsidiary to the extent
permitted under Section 8.1(g);


 


(s)                                  Liens in favor of sellers of Property
attaching solely to cash earnest money deposits in connection with any letter
of intent or purchase agreement in connection with a Permitted Acquisition;


 


(t)                                    Liens arising from precautionary UCC
financing statements regarding consignments;


 


(u)                                 Liens on insurance policies and the
proceeds thereof to the extent securing the financing of the premium payment
with respect thereto and to the extent such payment is not delinquent;


 


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(v)                                 Liens encumbering customary initial
deposits and margin deposits, and similar Liens and margin deposits, and
similar Liens attaching to commodity trading accounts or other brokerage
accounts incurred in the ordinary course of business;


 


(w)                               Liens in favor of financial
institutions securing reimbursement obligations in respect of documentary
letters of credit or bankers’ acceptances; provided that such Liens
attach only to the goods covered thereby and the proceeds thereof;


 


(x)                                   any interest of title of a purchaser
under, and Liens arising from UCC financing statements relating to, any sale of
accounts receivable in connection with the compromise thereof;


 


(y)                                 Liens consisting of an agreement to
sell, transfer or dispose of Property pursuant to a Permitted Asset
Disposition; and


 


(z)                                   other Liens not described above, provided
that such Liens do not secure obligations in excess of $40,000,000 at any one
time outstanding.


 


8.3.   
NATURE OF BUSINESS.


 


The Credit Parties will not permit any Consolidated
Party to substantively alter the character or conduct of the business conducted
by such Person as of the Closing Date, except for reasonable extensions thereof
and businesses ancillary or complementary thereto.


 


8.4.   
CONSOLIDATION, MERGER, DISSOLUTION, ETC.


 


Except in connection with a Permitted Asset
Disposition, the Credit Parties will not permit any Consolidated Party to enter
into any transaction of merger or consolidation or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution); provided
that, notwithstanding the foregoing provisions of this Section 8.4 but
subject to the terms of Sections 7.11 and 7.12, (a) the Borrower may merge
or consolidate with any of its Subsidiaries provided that the Borrower
shall be the continuing or surviving corporation, (b) subject to the
preceding clause (a), any Credit Party (other than the Parent or the Borrower)
may merge or consolidate with any other Credit Party (other than the Parent or
the Borrower), (c) any Consolidated Party which is not a Credit Party may
be merged or consolidated with or into any Credit Party other than the Parent provided
that such Credit Party shall be the continuing or surviving corporation, (d) any
Consolidated Party which is not a Credit Party may be merged or consolidated
with or into any other Consolidated Party which is not a Credit Party, (e) any
Subsidiary of the Borrower may merge with any Person that is not a Credit Party
in connection with an Asset Disposition permitted under Section 8.5, (f) the
Borrower or any Subsidiary of the Borrower may merge with any Person other than
a Consolidated Party in connection with an Acquisition permitted hereunder provided
that, if such transaction involves the Borrower, the Borrower shall be the
continuing or surviving corporation and (g) any Subsidiary of the Borrower
may dissolve, liquidate or wind up its affairs at any time provided that such
dissolution, liquidation or winding up, as applicable, could not have a
Material Adverse Effect.


 


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8.5.   
ASSET DISPOSITIONS.


 


The Credit Parties will not permit any Consolidated
Party to make any Asset Disposition other than an Excluded Asset Disposition
unless (a) at least 75% of the consideration paid in connection therewith
(excluding the assumption by the purchaser of liabilities associated with such
disposed Property) is cash or Cash Equivalents (except as provided in clause (d) below)
and shall be in an amount not less than the fair market value of the Property
disposed of, (b) if such transaction is a Sale and Leaseback Transaction,
such transaction is not prohibited by the terms of Section 8.13, (c) such
transaction does not involve a sale or other disposition of receivables other
than receivables owned by or attributable to other Property concurrently being
disposed of in a transaction otherwise permitted under this Section 8.5, (d) (1) if
the consideration for such Asset Disposition is 100% cash (excluding the
assumption by the purchaser of liabilities associated with such Property) the
aggregate assets sold or otherwise disposed of by the Consolidated Parties in
all such transactions after the Closing Date shall have contributed in the
aggregate no more than an amount equal to the EBITDA Disposition Limit of
Consolidated EBITDA for the respective twelve-month periods prior to the date
on which such assets were disposed of, with contribution to Consolidated EBITDA
being separately calculated for each such Asset Disposition or series of
related Asset Dispositions for the respective twelve-month period preceding
each such Asset Disposition or series of Asset Dispositions, and (2) if
the consideration for such Asset Disposition is not 100% cash, as aforesaid,
the aggregate net book value of the asset sold or otherwise disposed of by the
Consolidated Parties shall not exceed $70,000,000 (and of such amount assets
having a net book value of up to $20,000,000 may be sold or otherwise disposed
of for consideration consisting of less than 75% cash and Cash Equivalents), (e) if
the net book value of the Property subject to such Asset Disposition exceeds
$10,000,000 (i) upon giving effect on a Pro Forma Basis to such
transaction, the Consolidated Net Senior Secured Leverage Ratio would be less
than or equal to the then applicable Consolidated Net Senior Secured Leverage
Level and (ii) the Borrower shall have delivered to the Administrative
Agent a certificate of an Executive Officer of the Borrower specifying the
anticipated date of such Asset Disposition, briefly describing the assets to be
sold or otherwise disposed of and setting forth the net book value of such
assets, the aggregate consideration and a reasonable estimate of the Net Cash
Proceeds to be received for such assets in connection with such Asset
Disposition, (f) the Credit Parties shall apply (or cause to be applied)
an amount equal to the Net Cash Proceeds of such Asset Disposition to (i) make
Eligible Reinvestments or (ii) prepay the Loans (and cash collateralize
LOC Obligations) in accordance with the terms of Section 3.3(b)(iii)(A) and
(g) such Asset Disposition is not prohibited by any Junior Financing
Documentation.  Pending final application
of the Net Cash Proceeds of any Asset Disposition, the Consolidated Parties may
apply such Net Cash Proceeds to temporarily reduce the Revolving Loans or to
make Investments in Cash Equivalents.


 


Upon a sale of assets or the sale of Capital Stock
of a Consolidated Party permitted by this Section 8.5, such Collateral
automatically shall be released from the Liens created by the Credit Documents
and the Administrative Agent shall (to the extent applicable) deliver to the
Credit Parties, upon the Credit Parties’ request and at the Credit Parties’
expense, such documentation as is reasonably necessary to evidence the release
of the Administrative Agent’s security interest, if any, in such assets or
Capital Stock, including, without limitation, amendments or terminations of UCC
financing statements, if any, the return of stock certificates, if any, and,
provided that such Consolidated Party is released from all of its obligations,
if any, 


 


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under any Junior Financing
Documentation, the release of such Consolidated Party from all of its
obligations, if any, under the Credit Documents.


 


8.6.   
INVESTMENTS.


 


The Credit Parties will not permit any Consolidated
Party to make any Investments, except for:


 


(a)                                  Investments consisting of cash and Cash
Equivalents;


 


(b)                                 Investments consisting of accounts
receivable created, acquired or made by any Consolidated Party in the ordinary
course of business and payable or dischargeable in accordance with customary
trade terms;


 


(c)                                  Investments consisting of Capital
Stock, obligations, securities or other property received by any Consolidated
Party (i) in settlement of accounts receivable (created in the ordinary
course of business) from bankrupt or insolvent obligors or disputes with
customers and (ii) as partial consideration for a Permitted Asset
Disposition;


 


(d)                                 Investments existing as of the Closing
Date and set forth in Schedule 8.6;


 


(e)                                  Investments consisting of advances or
loans to directors, officers, employees, agents, customers or suppliers that do
not exceed $5,000,000 in the aggregate at any one time outstanding;


 


(f)                                    Investments in any Credit Party (other
than the Parent) and Investments by Consolidated Parties which are not Credit
Parties in other Consolidated Parties;


 


(g)                                 to the extent not required at such time
to prepay the Loans pursuant to Section 3.3(b), any Eligible Reinvestment
of the Net Cash Proceeds of (i) any Involuntary Disposition as
contemplated by Section 7.6(b), (ii) any Asset Disposition as contemplated
by Section 8.5(f) or (iii) any Equity Issuance;


 


(h)                                 Investments consisting of an
Acquisition by the Borrower or any Subsidiary of the Borrower, provided
that (i) the Property acquired (or the Property of the Person acquired) in
such Acquisition is used or useful in the same or a similar line of business as
the Borrower and its Subsidiaries were engaged in on the Closing Date (and any
reasonable extensions or expansions thereof or businesses ancillary or
complementary thereto), (ii) the Administrative Agent shall have received
all items in respect of the Capital Stock or Property acquired in such
Acquisition required to be delivered by the terms of Section 7.11 and/or Section 7.12,
(iii) in the case of an Acquisition of the Capital Stock of another
Person, the board of directors (or other comparable governing body) of such
other Person shall have duly approved such Acquisition, (iv) if such
transaction involves the purchase of an interest in a partnership between the
Borrower as a general partner and entities unaffiliated with the Borrower as
the other partners, such transaction shall be effected by having such equity
interest acquired by a corporate holding company directly or indirectly
wholly-owned by the Borrower newly formed 


 


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for the sole
purpose of effecting such transaction, (v) the aggregate consideration
(including cash and non-cash consideration and any assumption of Indebtedness
but excluding consideration consisting of any Capital Stock of the Parent
issued to the seller of the Capital Stock or Property acquired in such
Acquisition and the Net Cash Proceeds of any Equity Issuance by the Parent
contemporaneously with such Acquisition) for any Acquisition shall not exceed
$300,000,000 and (vi) the Borrower shall have delivered to the
Administrative Agent a Pro Forma Compliance Certificate demonstrating that,
upon giving effect to such Acquisition on a Pro Forma Basis, the Consolidated
Net Senior Secured Leverage Ratio would be less than or equal to the then
applicable Consolidated Net Senior Secured Leverage Level;


 


(i)                                     Investments consisting of endorsements
for collection or deposit in the ordinary course of business;


 


(j)                                     to the extent constituting Investments,
(i) Guaranty Obligations permitted by Section 8.1(e), (ii) Permitted
Liens and (iii) transactions permitted by Section 8.4;


 


(k)                                  Investments consisting of customary
trade arrangements with customers in the ordinary course of business and
consistent with past practices;


 


(l)                                     Investments by the Parent consisting of
obligations of directors and/or employees of any Consolidated Party in
connection with such Person’s purchase of Capital Stock in the Parent or
Holdings LLC;


 


(m)                               Investments made with the portion of
Excess Cash Flow not required to prepay the Loans in accordance with Section 3.3(b)(ii);


 


(n)                                 to the extent constituting Investments,
the licensing or contribution of Intellectual Property pursuant to joint
marketing arrangements with Persons other than Consolidated Parties;


 


(o)                                 Investments consisting of advances or
loans (i) to the Parent in lieu of, and not exceeding the aggregate amount
of, Restricted Payments to the Parent permitted under Section 8.7 and (ii) to
Holdings LLC in lieu of, and not exceeding the aggregate amount of, Restricted
Payments to Holdings LLC permitted under Section 8.7(j);


 


(p)                                 other Investments not listed above
(including, without limitation, Investments in Foreign Subsidiaries and Joint
Ventures) in an aggregate net amount not to exceed $100,000,000 at any one
time; provided, however, that, to the extent that any such
Investment (or series of related Investments) made pursuant to this clause (p) consists
of the contribution(s) or other transfer(s) of Property (other than
cash) having an aggregate net book value in excess of $5,000,000 to a Joint
Venture for consideration less than the fair market value of such Property,
then the Borrower shall have delivered to the Administrative Agent a Pro Forma
Compliance Certificate demonstrating that, upon giving effect on a Pro Forma
Basis to such Investment(s), the Consolidated Net Senior Secured Leverage Ratio
would be less than or equal to the Consolidated Net Senior Secured Leverage
Level; and


 


(q)                                 to the extent constituting Investments,
the transactions permitted by clauses (j) and (k) of Section 8.9.


 


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8.7.   
RESTRICTED PAYMENTS


 


The Credit Parties
will not permit any Consolidated Party to, directly or indirectly, declare,
order, make or set apart any sum for or pay any Restricted Payment, except (a) Restricted
Payments by any Consolidated Party which is not a Credit Party to any other
Consolidated Party, (b) to the extent constituting Restricted Payments,
transactions permitted by Section 8.1(f), (h), (i), (j), (l), (o), (p) or
(r), Section 8.4, Section 8.8 or Section 8.9, (c) Restricted
Payments by any Consolidated Parties to the Parent for its proportionate share
of the tax liability of the affiliated group of corporations that file
consolidated federal income tax returns (or that file state or local income tax
returns on a consolidated basis), (d) Restricted Payments made to satisfy
required payments under Section 6.27 of the Unit Purchase Agreement, (e) scheduled
payments of Subordinated Debt or Qualified Preferred Stock not in violation of
the subordination provisions contained in the applicable Junior Financing
Documentation, (f) Restricted Payments by any Consolidated Party to the
Parent not to exceed an amount necessary to permit the Parent to pay its costs
(including all professional fees and expenses) incurred to comply with its
reporting obligations under federal or state laws or in connection with
reporting or other obligations under this Credit Agreement and the Credit
Documents, (g) Restricted Payments made to repurchase and redeem all or
any portion of the GLK Note (or accreted amount plus accrued interest); provided
that after giving effect thereto, the Consolidated Net Senior Secured Leverage
Ratio determined on a Pro Forma Basis as demonstrated by a Pro Forma Compliance
Certificate delivered by the Borrower to the Administrative Agent is no greater
than the applicable Consolidated Net Senior Secured Leverage Level, (h) Restricted
Payments by any Consolidated Party to the Parent not to exceed an amount
necessary to permit the Parent to pay its interim expenses incurred in
connection with any public offering of equity securities the net proceeds of
which are specifically intended to be received by or contributed or loaned to
the Borrower, which, unless such offering shall have been terminated by the
board of directors of the Parent, shall be repaid to the Borrower promptly out
of the proceeds of such offering, (i) Restricted Payments by any
Consolidated Party to the Parent to pay for corporate, administrative and
operating expenses (including, without limitation, insurance of the Parent) in
the ordinary course of business and in an amount not to exceed the amount
necessary for the Parent to make scheduled payments of Senior Unsecured Debt,
Subordinated Debt and Qualified Preferred Stock issued by it to the extent
permitted by clause (e) above, (j) Restricted Payments by any
Consolidated Party to Holdings LLC to pay for (1) corporate,
administrative and operating expenses, in the ordinary course of business
relating to the Consolidated Parties, in an amount not to exceed $1,000,000 per
fiscal year and (2) directors’ and officers’ insurance for the
Consolidated Parties, (k) repurchases by the Parent of its Capital Stock
(and Restricted Payments by the Borrower and/or the Parent) to the extent
necessary to enable the Parent to repurchase Capital Stock (or to make payments
on any promissory note issued to repurchase such Capital Stock) from a former
or current employee or director (and/or such employee’s or director’s estate,
spouse and/or former spouse) of the Parent or any of its Subsidiaries in connection
with the termination of such employee’s employment or resignation from the
Board of Directors; provided that such Restricted Payments shall not exceed
$2,000,000 in cash during any fiscal year plus (1) the unused
amount available pursuant to this clause (k) for such Restricted 


 


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Payments
from any previous year and (2) the proceeds of any key-man life insurance
maintained by and received by the Parent or any of its Subsidiaries, (l) repurchase
of Capital Stock of the Parent deemed to occur upon the non-cash exercise of
stock options and warrants, (m) Restricted Payments made with the Net Cash
Proceeds of Equity Issuances of the Parent which are not required to be applied
to the prepayment of the Loans pursuant to Section 3.3(b)(v), (n) refinancings
of the Subordinated Debt and Qualified Preferred Stock permitted by Section 8.1
and Section 8.8, (o) to the extent constituting Restricted Payments,
the loans and payments permitted by clauses (i), (j) and (k) of Section 8.9,
(p) Restricted Payments made on the Closing Date to consummate the
Transaction and (q) Restricted Payments in an aggregate amount not to
exceed $5,000,000 (plus 100% of the Permitted Retained Excess Cash Flow Amount
as calculated at the end of each fiscal year; provided that at the time
of any such Restricted Payment under this clause (q) the Consolidated Net
Leverage Ratio is less than or equal to the then applicable Consolidated Net
Leverage Level. Notwithstanding the foregoing and Section 8.1,
Subordinated Debt may not be repaid, redeemed or refinanced with the Net Cash
Proceeds of other Indebtedness other than Subordinated Debt.


 


8.8.   
OTHER INDEBTEDNESS.


 


The Credit Parties
will not permit any Consolidated Party to (a) if any Default or Event of
Default has occurred and is continuing or would be directly or indirectly
caused as a result thereof, after the issuance thereof, amend or modify any of
the terms of any Indebtedness of such Consolidated Party which is subordinated
in right of payment to any Credit Party Obligations if such amendment or
modification would add or change any terms in a manner adverse to such
Consolidated Party, or shorten the final maturity or average life to maturity
or require any payment to be made sooner than originally scheduled or increase
the interest rate applicable thereto (other than as a result of a default) in
excess of 200 basis points,  (b) after
the issuance thereof, amend or modify any of the terms of any Junior Financing
Documentation if such amendment or modification would (i) change the
subordination provisions in a manner less favorable to the Lenders than the
Subordinated Debt Indenture for the 117/8% Senior Subordinated Notes, (ii) shorten the
final maturity or average life to maturity thereof or require any payment to be
made sooner than originally scheduled or (iii) not permit the Credit
Facilities (including the Incremental Term Loans and Revolving Commitment
Increases) or guarantees or collateral security therefor (or restrict payments
thereof) or (c) make interest payments in respect of any Subordinated Debt
or Qualified Preferred Stock in violation of the subordination provisions of
the applicable Junior Financing Documentation. 
Notwithstanding the foregoing, the Credit Parties may refinance
Subordinated Debt to the extent permitted by Sections 8.1(f), (o) and (p) with
other Subordinated Debt or Qualified Preferred Stock, as permitted, and (r) and
Sections 8.7(g), (m) and (n) and may repay or repurchase the GLK Note
as permitted by Section 8.7(g).


 


8.9.   
TRANSACTIONS WITH AFFILIATES.


 


The Credit Parties
will not permit any Consolidated Party to enter into or permit to exist any
transaction or series of transactions with any officer, director, Subsidiary or
Affiliate of such Person other than (a) advances of working capital to any
Credit Party other than the Parent, (b) transfers of cash and assets to
any Credit Party other than the Parent, (c) transactions expressly
permitted by Section 8.1, Section 8.4, Section 8.5, Section 8.6
or Section 8.7,


 


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(d) normal
compensation, indemnification and reimbursement of expenses of officers,
employees and directors, (e) the payment of fees and expenses in
connection with the Transaction (as defined in the Existing Credit Agreement)
as contemplated by the Unit Purchase Agreement, the Credit Documents and the
Subordinated Debt, (f) the payment of fees and reimbursement of expenses
to the Equity Investors and any indemnities in connection with the Transaction
(as defined in the Existing Credit Agreement), the Transaction as defined
herein and as provided in the Management Agreement, (g) the transactions
set forth on Schedule 8.9, (h) Equity Issuances to Affiliates, (i) the
payment by the Borrower of up to $2,000,000 after the Closing Date and through June 30,
2007 to the extent required by the Purchase Related Agreements (the “PRO-FAC
PAYMENT”), provided that, after giving effect thereto, no Default or
Event of Default then exists, (j) loans by the Borrower to Pro-Fac of up
to $2,000,000; provided that, after giving effect thereto, no Default or
Event of Default then exists, (k) loans by the Borrower to GLK expressly
permitted by Section 8.6(r), and (l) except as otherwise specifically
limited in this Credit Agreement, other transactions which are entered into in
the ordinary course of such Person’s business on terms and conditions
substantially as favorable to such Person as would be obtainable by it in a
comparable arms-length transaction with a Person other than an officer,
director, shareholder, Subsidiary or Affiliate.


 


8.10.   
FISCAL YEAR; ORGANIZATIONAL DOCUMENTS AND OTHERS.


 


The Credit Parties
will not permit any Consolidated Party to (a) amend, modify or change its
articles of incorporation (or other similar organizational document) or bylaws
(or other similar documents) other than to effect a change in jurisdiction of
organization in accordance with Section 8.4 or in a manner materially
adverse to the rights of the Lenders; provided that the Parent or the Borrower
may amend its articles of incorporation (or other similar organizational
documents) in order to create and issue Qualified Preferred Stock permitted
pursuant to Section 8.1or (b) change its fiscal year, provided
that the Borrower may change its fiscal year with the prior written approval of
the Administrative Agent, which consent shall not be unreasonably withheld.


 


8.11.   
LIMITATION ON RESTRICTED ACTIONS.


 


The Credit Parties
will not permit any Consolidated Party 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 Person to (a) pay dividends or make
any other distributions to any Credit Party on its Capital Stock or with
respect to any other interest or participation in, or measured by, its profits,
(b) pay any Indebtedness or other obligation owed to any Credit Party, (c) make
loans or advances to any Credit Party, (d) sell, lease or transfer any of
its Property (other than Capital Stock in Joint Ventures) to any Credit Party,
or (e) act as a Credit Party and pledge its Property (other than Capital
Stock in Joint Ventures) pursuant to and in accordance with the Credit
Documents or any renewals, refinancings, exchanges, refundings or extension
thereof, except (in respect of any of the matters referred to in clauses (a)-(d) above)
for such encumbrances or restrictions existing under or by reason of (i) this
Credit Agreement and the other Credit Documents, (ii) the Subordinated
Debt Indentures and Subordinated Notes, as in effect as of the Closing Date, (iii) applicable
law or regulation, (iv) any document or instrument governing Indebtedness
permitted under Section 8.1, provided that the encumbrances and
restrictions relating to any Consolidated Party in such document or instrument
are no more 


 


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restrictive
than the corresponding encumbrances and restrictions contained in the Credit
Documents, (v) any Permitted Lien or any document or instrument governing
any Permitted Lien, provided that any such restriction contained therein
relates only to the asset or assets subject to such Permitted Lien, (vii) customary
restrictions and conditions contained in any agreement relating to the sale of
any Property permitted under Section 8.5 pending the consummation of such
sale, (viii) customary non-assignment provisions in contracts or (ix) agreements
entered into by Foreign Subsidiaries.


 


8.12.   
OWNERSHIP OF SUBSIDIARIES.


 


Notwithstanding
any other provisions of this Credit Agreement to the contrary, the Credit
Parties will not (i) permit the Credit Parties (other than the Parent
which shall be required to own 100% of the Borrower) to own directly less than
90% of the Voting Stock of any of the Domestic Subsidiaries except as a result
of or in connection with a dissolution, merger, consolidation or disposition of
a Subsidiary not prohibited by Section 8.4 or Section 8.5, (ii) permit
the Credit Parties to own directly or indirectly less than 90% of the Voting
Stock of any of the Foreign Subsidiaries except (A) to qualify directors
where required by applicable law or to satisfy other requirements of applicable
law with respect to the ownership of Capital Stock of Foreign Subsidiaries or (B) as
a result of or in connection with a dissolution, merger, consolidation or
disposition of a Subsidiary not prohibited by Section 8.4 or Section 8.5,
(iii) except as permitted by Section 8.6, permit any Subsidiary of
the Borrower to issue or have outstanding any shares of preferred Capital Stock
other than Qualified Preferred Stock or (iv) create, incur, assume or
suffer to exist any Lien on any Capital Stock of any Subsidiary of the Borrower
required to be pledged to the Administrative Agent pursuant to the terms of Section 7.12,
except for Permitted Liens.


 


8.13.   
SALE LEASEBACKS.


 


The Credit Parties
will not permit any Consolidated Party to enter into any Sale and Leaseback
Transaction; provided, however, the Borrower and its
Subsidiaries may enter into Sale and Leaseback Transactions so long as the fair
market value of all Properties subject to such transactions occurring on or
after the Closing Date does not exceed $50,000,000.


 


8.14.   
NO FURTHER NEGATIVE PLEDGES.


 


The Credit Parties
will not permit any Consolidated Party to enter into, assume or become subject
to any agreement prohibiting or otherwise restricting the existence of any Lien
upon any of its Property in favor of the Administrative Agent (for the benefit
of the Lenders) for the purpose of securing the Credit Party Obligations,
whether now owned or hereafter acquired, or requiring the grant of any security
for any obligation if such Property is given as security for the Credit Party
Obligations, except (a) in connection with any document or instrument
governing Indebtedness incurred pursuant to Section 8.1(c), provided
that any such restriction contained therein relates only to the asset or assets
constructed or acquired in connection therewith, (b) in connection with
any Permitted Lien or any document or instrument governing any Permitted Lien, provided
that any such restriction contained therein relates only to the asset or assets
subject to such Permitted Lien, (c) pursuant to customary restrictions and
conditions contained in any agreement relating to any Permitted Asset
Disposition, pending the 


 


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consummation
of such sale, (d) customary non-assignment provisions in contracts, (e) the
documentation governing or evidencing the Senior Unsecured Debt or the Subordinated
Notes, (f) agreements entered into by to Foreign Subsidiaries or (g) Property
consisting of Capital Stock in Joint Ventures.


 


8.15.   
CAPITAL EXPENDITURES.


 


The Credit Parties
will not make or commit to make any Consolidated Capital Expenditure except
Consolidated Capital Expenditures of the Borrower and its Subsidiaries not
exceeding $35,000,000 per fiscal year, provided that, to the extent
Consolidated Capital Expenditures made in any particular fiscal year (including
the fiscal year ended June 24, 2006) are less than $35,000,000, the amount
of such difference (the “CAPEX ROLLOVER”) may be carried forward and spent in
the next succeeding fiscal year.


 


8.16.   
HOLDING COMPANY STATUS OF PARENT.


 


The Credit Parties
will not permit the Parent to engage in any business activities other than
maintaining its corporate existence and owning the stock of the Borrower.


 


SECTION IX


 


EVENTS
OF DEFAULT


 


9.1.   
EVENTS OF DEFAULT.


 


An Event of Default shall exist upon the occurrence
and during the continuance of any of the following specified events (each an “EVENT
OF DEFAULT”):


 


(a)                                  PAYMENT.  Any Credit Party shall


 


(i)                                     default in the
payment when due of any principal of any of the Loans or of any reimbursement
obligations arising from drawings under Letters of Credit, or


 


(ii)                                  default, and such
default shall continue for three (3) or more Business Days, in the payment
when due of any interest on the Loans or of any interest on reimbursement
obligations arising from drawings under Letters of Credit, or of any Fees or
other amounts owing hereunder, under any of the other Credit Documents or in
connection herewith or therewith; or


 


(b)                                 REPRESENTATIONS. Any representation,
warranty or statement made or deemed to be made by any Credit Party herein, in
any of the other Credit Documents, or in any statement or certificate delivered
or required to be delivered pursuant hereto or thereto shall prove untrue in
any material respect on the date as of which it was deemed to have been made;
or


 


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(c)                                  COVENANTS.  Any Credit Party shall


 


(i)                                     default in the
due performance or observance of any term, covenant or agreement contained in
Sections 7.2 (with respect to corporate existence), 7.8, 7.11 or 7.12 or Section 8;
or


 


(ii)                                  default in the
due performance or observance of any term, covenant or agreement contained in Section 7.10
(it being understood that (a) subject to the following clause (b), Section 7.10
may be enforced only by Required Revolving Lenders or by the Administrative
Agent at the request of the Required Revolving Lenders and is subject to Section 9.3
(it being understood and agreed that any Default arising under Section 7.10
may be remedied by the payment in full of Revolving Loans and Swingline Loans
and the reduction of the LOC Obligations to $0) and (b) Section 7.10
shall constitute an Event of Default with respect to the Tranche B Term Loans
and Incremental Term Loans upon the earlier of (i) the date that is 60
days after the date the compliance certificate demonstrating such default is
required to be delivered pursuant to Section 7.1(c) and (ii) the
date on which the Lenders under the Revolving Facility exercise their right to
accelerate the Loans as a result of such default);


 


(iii)                               default in the
due performance or observance by it of any term, covenant or agreement (other
than those referred to in subsections (a), (b) or (c)(i) or (ii) of
this Section 9.1) contained in this Credit Agreement or any other Credit
Document and such default shall continue unremedied for a period of at least 30
days after notice thereof by the Administrative Agent; or


 


(d)                                 OTHER CREDIT DOCUMENTS. Except as a
result of or in connection with a dissolution, merger or disposition of a
Subsidiary not prohibited by Section 8.4 or Section 8.5, any Credit
Document shall fail to be in full force and effect (other than in accordance
with its terms) or to give the Administrative Agent and/or the Lenders the
Liens, material rights, powers and privileges purported to be created thereby,
or any Credit Party shall so state in writing; or


 


(e)                                  GUARANTIES. Except as the result of or
in connection with a dissolution, merger or disposition of a Subsidiary not
prohibited by Section 8.4 or Section 8.5, the guaranty given by any
Guarantor hereunder (including any Person after the Closing Date in accordance
with Section 7.11) or any provision thereof shall cease to be in full
force and effect, or any Guarantor (including any Person after the Closing Date
in accordance with Section 7.11) hereunder or any Person acting by or on
behalf of such Guarantor shall deny or disaffirm such Guarantor’s obligations
under such guaranty, or any Guarantor shall default (beyond any applicable
grace period) in the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to any guaranty; or


 


(f)                                    BANKRUPTCY, ETC. Any Bankruptcy Event
shall occur with respect to any Consolidated Party other than any non-Material
Domestic Subsidiary; or


 


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(g)                                 DEFAULTS UNDER OTHER INDEBTEDNESS. With
respect to any Indebtedness (other than Indebtedness outstanding under this
Credit Agreement) in excess of $10,000,000 in the aggregate principal amount
for the Consolidated Parties taken as a whole, (A) either (1) default
in any payment shall occur and continue (beyond the applicable grace period
with respect thereto, if any) with respect to any such Indebtedness (other than
as a result of subordination provisions invoked by the Lenders), or (2) a default
in the observance or performance relating to such Indebtedness or contained in
any instrument or agreement evidencing, securing or relating thereto, or any
other event or condition shall occur or exist, the effect of which default or
other event or condition is to cause, or permit, the holder or holders of such
Indebtedness (or trustee or agent on behalf of such holders) to cause, any such
Indebtedness to become due prior to its stated maturity; or (B) any such
Indebtedness shall be declared due and payable, or required to be prepaid other
than by a regularly scheduled required prepayment, prior to the stated maturity
thereof; or


 


(h)                                 JUDGMENTS. One or more judgments or
decrees shall be entered against one or more of the Consolidated Parties other
than any non-Material Domestic Subsidiary involving a liability of $10,000,000
or more in the aggregate (to the extent not paid or covered by insurance or
indemnity provided by a carrier or indemnitor who has not disclaimed coverage
and has the ability to perform) and any such judgments or decrees shall not
have been paid, vacated, discharged or stayed or bonded pending appeal within
60 days from the entry thereof; or


 


(i)                                     ERISA. Any of the following events or
conditions, if such event or condition could reasonably be expected to result
in liability that would have a Material Adverse Effect: (i) any “accumulated
funding deficiency,” as such term is defined in Section 302 of ERISA and Section 412
of the Code, whether or not waived, shall exist with respect to any Plan, or
any lien shall arise on the assets of any Consolidated Party or any ERISA
Affiliate in favor of the PBGC or a Plan; (ii) an ERISA Event shall occur
with respect to a Single Employer Plan, which is, in the reasonable opinion of
the Administrative Agent, likely to result in the termination of such Plan for
purposes of Title IV of ERISA; (iii) an ERISA Event shall occur with
respect to a Multiemployer Plan or Multiple Employer Plan, which is, in the
reasonable opinion of the Administrative Agent, likely to result in (A) the
termination of such Plan for purposes of Title IV of ERISA, or (B) any
Consolidated Party or any ERISA Affiliate incurring any liability in connection
with a withdrawal from, reorganization of (within the meaning of Section 4241
of ERISA), or insolvency (within the meaning of Section 4245 of ERISA) of
such Plan; or (iv) any prohibited transaction (within the meaning of Section 406
of ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility shall occur which may subject any Consolidated Party or any
ERISA Affiliate to any liability under Sections 406, 409, 502(i), or 502(l) of
ERISA or Section 4975 of the Code, or under any agreement or other
instrument pursuant to which any Consolidated Party or any ERISA Affiliate has
agreed or is required to indemnify any person against any such liability; or


 


(j)                                     SUBORDINATED FINANCINGS. (i) There
shall occur and be continuing any “Event of Default” (or any comparable term)
under, and as defined in, any Junior Financing Documentation, (ii) any of
the Credit Party Obligations for any reason shall cease to be “Designated
Senior Debt” (or any comparable term) under, and as defined in, any Junior
Financing Documentation (other than the GLK Note), (iii) any Indebtedness
other than the Credit Party Obligations shall constitute “Designated Senior
Debt” (or any comparable term) under, and 


 


105

















 


as defined
in, any Junior Financing Documentation or (iv) the subordination
provisions set forth in any Junior Financing Documentation shall, in whole or
in part, terminate, cease to be effective or cease to be legally valid, binding
and enforceable against any holder of the applicable Subordinated Debt or
Qualified Preferred Stock (other than in accordance with their respective
terms); or


 


(k)                                  OWNERSHIP.  There shall occur a Change of Control.


 


9.2.   
ACCELERATION; REMEDIES.  Upon the
occurrence and during the continuance of an Event of Default, the
Administrative Agent, upon the request and direction of the Required Lenders
(or in the case of an Event of Default under Section 7.10, the Required
Revolving Lenders), shall, by written notice to the Credit Parties take any of
the following actions (except in the case of an event under paragraph (c)(ii) of
Section 9.1 in respect of a failure to observe or perform the covenant in Section 7.10
if a Cure Notice has been given as set forth in Section 9.3), then the
following actions may not be taken until such time:


 


(a)                                  TERMINATION OF COMMITMENTS. Declare the
Commitments terminated whereupon the Commitments shall be immediately
terminated.


 


(b)                                 ACCELERATION. Declare the Credit Party
Obligations to be due and payable, whereupon the same shall be immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Credit Parties.


 


(c)                                  CASH COLLATERAL.  Direct the Borrower to pay (and the Borrower
hereby promises to pay, upon receipt of such notice) to the Administrative
Agent additional cash, to be held by the Administrative Agent, for the benefit
of the Lenders, in a cash collateral account as additional security for the LOC
Obligations in respect of subsequent drawings under all then outstanding
Letters of Credit in an amount equal to the maximum aggregate amount which may
be drawn under all Letters of Credits then outstanding.


 


(d)                                 ENFORCEMENT OF RIGHTS.  Enforce any and all rights and interests
created and existing under the Credit Documents including, without limitation,
all rights and remedies existing under the Collateral Documents, all rights and
remedies against a Guarantor and all rights of set-off.


 


Notwithstanding the foregoing, if an Event of
Default specified in Section 9.1(f) shall occur with respect to the
Borrower, then, without the giving of any notice or other action by the
Administrative Agent or the Lenders, (i) the Commitments automatically
shall terminate, (ii) all of the outstanding Credit Party Obligations
under clause (i) of the definition thereof automatically shall immediately
become due and payable and (iii) the Borrower automatically shall be
obligated (and hereby promises) to pay to the Administrative Agent additional
cash, to be held by the Administrative Agent, for the benefit of the Lenders,
in a cash collateral account as additional security for the LOC Obligations in
respect of subsequent drawings under all then outstanding Letters of Credit in
an amount equal to the maximum aggregate amount which may be drawn under all
Letters of Credits then outstanding.


 


9.3.    RIGHT TO CURE.  Notwithstanding anything to the contrary
contained in this Section 9, in the event that the Consolidated Parties
fail to comply with the requirements of 


 


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the financial covenant set forth in Section 7.10
the Parent shall have the right (the “CURE RIGHT”), upon delivery by the Parent or the
Borrower to the Administrative Agent of a notice (“CURE NOTICE”) that Parent
intends to execute the Cure Right (which notice may be given during the period
beginning on the last day of the applicable fiscal quarter and ending on the
date delivery of the Parent’s compliance certificate calculating such covenant
is required to be delivered pursuant to Section 7.1(c)) to (i) issue
Capital Stock or subordinated debt for cash or otherwise receive cash
contributions to the equity of Parent and (ii) contribute the Net Cash
Proceeds therefrom (the “CURE AMOUNT”) to the Borrower as common equity and
thereupon such financial covenant shall be recalculated giving pro forma effect
to the following: (i) Consolidated EBITDA shall be increased solely for
the purpose of determining compliance or pro forma compliance with Section 7.10
as of the end of the applicable fiscal quarter and applicable subsequent
periods that include such fiscal quarter by an amount equal to the Cure Amount;
and (ii) if, after giving effect to the foregoing recalculations (but not,
for the avoidance doubt, taking into account any repayment of Indebtedness in
connection therewith), the requirements of such financial covenant shall be
satisfied, then the requirements of such financial covenant shall be deemed
satisfied as of the relevant date of determination with the same effect as
though there had been no failure to comply therewith at such date, and the applicable
breach or default of such financial covenants that had occurred shall be deemed
cured for the purposes of this Credit Agreement. Notwithstanding anything
herein to the contrary, (x) in each four fiscal quarter period there shall
be a period of at least one fiscal quarter in which the Cure Right is not
exercised, (y) the Cure Amount shall be no greater than the amount
required for purposes of complying with such financial covenants and (z) during
the period beginning upon delivery of a Cure Notice until the 15th Business Day
thereafter, none of Administrative Agent or any Lender shall exercise the right
to accelerate the Loans or terminate the Revolving Commitments and none of
Administrative Agent or any other Lender shall exercise any right to foreclose
on or take possession of the Collateral solely on the basis of an Event of
Default having occurred and being continuing under Section 7.10.


 


SECTION X


 


AGENCY
PROVISIONS


 


10.1.   
APPOINTMENT, POWERS AND IMMUNITIES.


 


(a)          Each Lender hereby irrevocably appoints and authorizes the
Administrative Agent to act as its agent under this Credit Agreement and the
other Credit Documents with such powers and discretion as are specifically
delegated to the Administrative Agent by the terms of this Credit Agreement and
the other Credit Documents, together with such other powers as are reasonably
incidental thereto. The Administrative Agent (which term as used in this
sentence and in Section 10.5 and the first sentence of Section 10.6
hereof shall include its Affiliates and its own and its Affiliates’ officers,
directors, employees, and agents): (i) shall not have any duties or
responsibilities except those expressly set forth in this Credit Agreement and
shall not be a trustee or fiduciary for any Lender; (ii) shall not be
responsible to the Lenders for any recital, statement, representation, or
warranty (whether written or oral) made in or in connection with any Credit
Document or any certificate or other document referred to or provided for in,
or received by any of them under, any Credit Document, or for the value,
validity, effectiveness, 


 


107

















 


genuineness,
enforceability, or sufficiency of any Credit Document, or any other document
referred to or provided for therein or for any failure by any Credit Party or
any other Person to perform any of its obligations thereunder; (iii) shall
not be responsible for or have any duty to ascertain, inquire into, or verify
the performance or observance of any covenants or agreements by any Credit
Party or the satisfaction of any condition or to inspect the Property
(including the books and records) of any Credit Party or any of its
Subsidiaries or Affiliates; and (iv) shall not be responsible for any
action taken or omitted to be taken by it under or in connection with any
Credit Document, except to the extent that the taking of such action or
omission is found by a final and nonappealable decision of a court of competent
jurisdiction to constitute its own gross negligence, bad faith or willful
misconduct. The Administrative Agent may employ agents and attorneys-in-fact
and shall not be responsible for the negligence or misconduct of any such
agents or attorneys-in-fact selected by it with reasonable care.  The Issuing Lender shall act on behalf of the
Lenders with respect to any Letters of Credit issued by it and the documents
associated therewith until such time (and except for so long) as the
Administrative Agent may agree at the request of the Required Lenders to act
for the Issuing Lender with respect thereto; provided, however,
that the Issuing Lender shall have all of the benefits and immunities (i) provided
to the Administrative Agent in this Section 10 with respect to any acts
taken or omissions suffered by the Issuing Lender in connection with Letters of
Credit issued by it or proposed to be issued by it and the application and
agreements for letters of credit pertaining to the Letters of Credit as fully
as if the term “Administrative Agent” as used in this Section 10 included the
Issuing Lender with respect to such acts or omissions, and (ii) as
additionally provided herein with respect to the Issuing Lender.


 


10.2.   
RELIANCE BY ADMINISTRATIVE AGENT.


 


The Administrative Agent shall be entitled to rely
upon any certification, notice, instrument, writing, or other communication
(including, without limitation, any thereof by telephone or telecopy) believed
by it to be genuine and correct and to have been signed, sent or made by or on
behalf of the proper Person or Persons, and upon advice and statements of legal
counsel (including counsel for any Credit Party or Lender), independent
accountants, and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the holder thereof
for all purposes hereof unless and until the Administrative Agent receives and
accepts an Assignment and Acceptance executed in accordance with Section 11.3(b) hereof.
As to any matters not expressly provided for by this Credit Agreement, the
Administrative Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall
be fully protected in so acting or refraining from acting) upon the
instructions of the Required Lenders, and such instructions shall be binding on
all of the Lenders; provided, however, that the
Administrative Agent shall not be required to take any action that exposes the
Administrative Agent to personal liability or that is contrary to any Credit
Document or applicable law or unless it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking any such action.


 


10.3.   
DEFAULTS.


 


The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default or Event of Default unless
the Administrative Agent has received written 


 


108

















 


notice from a Lender or a
Credit Party specifying such Default or Event of Default and stating that such
notice is a “Notice of Default”. In the event that the Administrative Agent
receives such a notice of the occurrence of a Default or Event of Default, the
Administrative Agent shall give prompt notice thereof to the Lenders. The
Administrative Agent shall (subject to Section 10.2 hereof) take such
action with respect to such Default or Event of Default as shall reasonably be
directed by the Required Lenders (or such other Lenders as required by Section 11.6),
provided that, unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interest of the Lenders.


 


10.4.   
RIGHTS AS A LENDER.


 


With respect to its Commitment and the Loans made by
it, JPMorgan Chase Bank (and any successor acting as Administrative Agent) in
its capacity as a Lender hereunder shall have the same rights and powers
hereunder as any other Lender and may exercise the same as though it were not
acting as the Administrative Agent, and the term “Lender” or “Lenders” shall,
unless the context otherwise indicates, include the Administrative Agent in its
individual capacity.  JPMorgan Chase Bank
(and any successor acting as Administrative Agent) and its Affiliates may
(without having to account therefor to any Lender) accept deposits from, lend money
to, make investments in, provide services to, and generally engage in any kind
of lending, trust, or other business with any Credit Party or any of its
Subsidiaries or Affiliates as if it were not acting as Administrative Agent,
and JPMorgan Chase Bank (and any successor acting as Administrative Agent) and
its Affiliates may accept fees and other consideration from any Credit Party or
any of its Subsidiaries or Affiliates for services in connection with this
Credit Agreement or otherwise without having to account for the same to the
Lenders.


 


10.5.   
INDEMNIFICATION.


 


The Lenders agree to indemnify the Administrative
Agent (to the extent not reimbursed under Section 11.5 hereof, but without
limiting the obligations of the Credit Parties under such Section) ratably (in
accordance with their respective (i) Revolving Commitments (or, if the
Revolving Commitments have been terminated, the outstanding Revolving Loans and
Participation Interests in Letters of Credit (including the Participation
Interests of the Issuing Lender in Letters of Credit)) and (ii) outstanding
Tranche B Term Loans (and Participation Interests therein)) for, and hold the
Administrative Agent harmless from and against, any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorneys’ fees), or disbursements of any kind and nature
whatsoever that may be imposed on, incurred by or asserted against the
Administrative Agent (including by any Lender) in any way relating to or
arising out of any Credit Document or the transactions contemplated thereby or
any action taken or omitted by the Administrative Agent under any Credit
Document; provided that no Lender shall be liable for any of the
foregoing to the extent they arise from the gross negligence, bad faith or
willful misconduct of the Person to be indemnified. Without limitation of the
foregoing, each Lender agrees to reimburse the Administrative Agent promptly
upon demand for its ratable share of any costs or expenses payable by the
Credit Parties under Section 11.5, to the extent that the Administrative
Agent is not promptly reimbursed for such costs and expenses by the Credit
Parties. The agreements in this Section 10.5 shall survive the 


 


109

















 


repayment of the Loans, LOC
Obligations and other obligations under the Credit Documents and the
termination of the Commitments hereunder.


 


10.6.   
NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS.


 


Each Lender agrees that it has, independently and
without reliance on the Administrative Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own
credit analysis of the Credit Parties and their Subsidiaries and decision to
enter into this Credit Agreement and that it will, independently and without
reliance upon the Administrative Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own analysis and decisions in taking or not taking action under the
Credit Documents. Except for notices, reports, and other documents and
information expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition, or business of any
Credit Party or any of its Subsidiaries or Affiliates that may come into the
possession of the Administrative Agent or any of its Affiliates.


 


10.7.   
SUCCESSOR ADMINISTRATIVE AGENT.


 


The Administrative Agent may resign at any time by
giving 90 days prior notice thereof to the Lenders and the Credit Parties. Upon
any such resignation, the Required Lenders shall have the right with the
consent of the Borrower (not to be unreasonably withheld) to appoint a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Required Lenders and shall have accepted such
appointment within thirty (30) days after the retiring Administrative Agent’s
giving of notice of resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent which shall be
a commercial bank organized under the laws of the United States having combined
capital and surplus of at least $100,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor, such successor
shall thereupon succeed to and become vested with all the rights, powers,
discretion, privileges, and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent’s resignation
hereunder as Administrative Agent, the provisions of this Section 10 shall
continue in effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as Administrative Agent. If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is thirty (30) days following a retiring Administrative Agent’s
notice of resignation, the retiring Administrative Agent’s resignation shall
nevertheless thereupon become effective and the Lenders shall perform all of
the duties of the Administrative Agent hereunder until such time, if any, as
the Required Lenders appoint a successor agent as provided for above.


 


10.8.   
CO-SYNDICATION AGENTS.


 


The Co-Syndication Agents, in their capacity as
such, shall have no rights, powers, duties, liabilities, fiduciary
relationships or obligations under this Credit Agreement or any of the other
Credit Documents.


 


110














 


10.9.        CO-DOCUMENTATION AGENTS.


 


The Co-Documentation Agents, in their capacity as
such, shall have no rights, powers, duties, liabilities, fiduciary
relationships or obligations under this Credit Agreement or any of the other
Credit Documents.


 


SECTION XI


 


MISCELLANEOUS


 


11.1.        NOTICES.


 


Except as otherwise expressly provided herein, all
notices and other communications shall have been duly given and shall be
effective (a) when delivered, (b) when transmitted via telecopy (or
other facsimile device) to the number set out below, (c) the Business Day
following the day on which the same has been delivered prepaid (or pursuant to
an invoice arrangement) to a reputable national overnight air courier service,
or (d) the third Business Day following the day on which the same is sent
by certified or registered mail, postage prepaid, in each case to the
respective parties at the address, in the case of the Credit Parties and the
Administrative Agent, set forth below, and, in the case of the Lenders, set
forth on Schedule 2.1(a), or at such other address as such party may
specify by written notice to the other parties hereto:


 


if
to any Credit Party:


 


Birds Eye Foods, Inc.


90 Linden Oaks


Rochester, New York  14625


Attn:                                       


Telephone:  (585)                  


Telecopy: 
(585) 383-1606


 


with copies to:


 


Vestar Capital
Partners


245 Park
Avenue


41st Floor


New York, New
York  10167


Attn: 
                          
and General Counsel


Telephone:  (212)
            


Telecopy:  (212) 809-4922


 


111

















 


and


 


Kirkland &
Ellis


200 East
Randolph Drive


Chicago, Illinois  60601


Attn: 
Christopher Butler


Telephone: 
(312) 861-2000


Telecopy: 
(312) 861-2200


 


if to the
Administrative Agent in respect of Notices of Borrowing, payments and
prepayments:


 


JPMorgan Chase Bank, N.A.


Loan Services
Agency Closing Unit


10 South
Dearborn


Chicago,
Illinois 60602


Attn:  Lillian Arroyo


Telephone:  (312) 385-7014


Telecopy:  (312) 385-7103


 


if to the Administrative Agent in respect of all other communications:


 


[JPMorgan
Chase & Co.

One Chase Square 

Rochester, New York  14643

Attn: Ben Smith

Telephone:  (585) 258-5669

Telecopy:  (585) 258-4407]


 


in each
case with a copy to:


 


[JPMorgan
Chase Bank, N.A.

One Chase Square

Rochester, New York  14643

Attn:  Ben Smith

Telephone: (585) 258-5669

Telecopy: (585) 258-4407]


 


Notices and other communications to any Lender
hereunder may be delivered or furnished by electronic communications pursuant
to procedures approved by the Administrative Agent; provided that the
foregoing shall not apply to notices pursuant to Section 2 unless
otherwise agreed by the Administrative Agent and the applicable Lender.  The Administrative Agent or the Borrower may,
in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it; provided
that approval of such procedures may be limited to particular notices or
communications.


 


112

















 


11.2.        RIGHT OF SET-OFF; ADJUSTMENTS.


 


Upon the occurrence and during the continuance of
any Event of Default under Section 9.1(a), each Lender (and each of its
Affiliates) is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final, other than payroll
or trust accounts) at any time held and other indebtedness at any time owing by
such Lender (or any of its Affiliates) to or for the credit or the account of
any Credit Party against any and all of the obligations of such Person then due
and owing under this Credit Agreement or under any other Credit Document,
irrespective of whether such Lender shall have made any demand hereunder or
thereunder. Each Lender agrees promptly to notify in writing any affected
Credit Party after any such set-off and application made by such Lender; provided,
however, that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender under this Section 11.2
are in addition to other rights and remedies (including, without limitation,
other rights of set-off) that such Lender may have.


 


11.3.        BENEFIT OF AGREEMENT.


 


(a)           The provisions of this Credit Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby (including any Affiliate of
the Issuing Bank that issues any Letter of Credit), except that (i) the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section.  Nothing in this Credit Agreement, expressed
or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby
(including any Affiliate of the Issuing Bank that issues any Letter of Credit),
Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby,
the Indemnified Parties) any legal or equitable right, remedy or claim under or
by reason of this Agreement.


 


(b)           (i)  Subject to the conditions set
forth in paragraph (b)(ii) below, any Lender may assign to one or more
Eligible Assignees all or a portion of its rights and obligations under this
Credit Agreement (including all or a portion of its Commitment and the Loans at
the time owing to it) with the prior written consent (such consent not to be
unreasonably withheld) of:


 


(A)          the Borrower, provided
that no consent of the Borrower shall be required for an assignment to a
Lender, an Affiliate of a Lender or an Approved Fund; and


 


(B)           the Administrative Agent,
the Swingline Lender and the Issuing Lender, provided that no consent of
the Administrative Agent, the Swingline Lender or the Issuing Lender shall be
required for an assignment of a Term Loan to an assignee that is a Lender,
Affiliate of a Lender or an Approved Fund immediately prior to giving effect to
such assignment.


 


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


 


(A)          except in the case of an
assignment to a Lender, Affiliate of a Lender, an Approved Fund or an
assignment of the entire remaining amount of the assigning Lender’s and its
Affiliates’ or Approved Funds’ Commitment, the amount of the Commitment of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 in the case of
Revolving Commitments and $1,000,000 in the case of Tranche B Term Loans unless
each of the Borrower and the Administrative Agent otherwise consent;


 


(B)           each partial assignment
shall be made as an assignment of a proportionate part of all the assigning
Lender’s rights and obligations under this Agreement in respect of the
applicable class of Commitments or Loans; provided that this subsection
shall not be construed to prohibit assignment of a proportionate part of all
the assigning Lender’s rights and obligations in respect of one class of
Commitments or Loans;


 


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


 


(D)          in the case of an assignment
by a Lender to a CLO managed by such Lender or an Affiliate of such Lender,
unless such assignment  shall have been
approved by the Borrower (the Borrower agreeing that such an approval, if
requested, will not be unreasonably withheld or delayed), the assigning Lender
shall retain the sole right to approve any amendment, modification or waiver of
any provision of this Agreement, provided that the Assignment and
Acceptance between such Lender and such CLO may provide that such Lender will
not, without the consent of such CLO, agree to any amendment, modification or
waiver described in the first proviso to Section 11.6(a) that affects
such CLO; and


 


(E)           the assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an administrative
questionnaire in which the assignee designates one or more credit contacts to
whom all syndicate-level information (which may contain material non-public
information about the Borrower and its Affiliates and their related parties or
their respective securities) will be made available and who may receive such
information in accordance with the assignee’s compliance procedures and
applicable laws, including Federal and state securities laws.


 


(iii)          Subject to acceptance and
recording thereof pursuant to paragraph (b)(iv) of this Section, from
and after the effective date specified in each Assignment and Acceptance the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of
a Lender under this Agreement, and the assigning Lender thereunder shall, to
the extent of the interest assigned by such Assignment and Acceptance, be
released


 


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from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto
but shall continue to be entitled to the benefits of Sections 3.9, 3.11,
3.12 and 11.5 for matters arising while such person was a Lender).  If the assignee is not a United States person
under Section 7701(a)(30) of the Code, it shall deliver to the Credit
Parties and the Administrative Agent certification as to exemption from
deduction or withholding of Taxes.  Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 11.3 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (c) of this Section.


 


(iv)          The Administrative Agent,
acting for this purpose as an agent of the Borrower, shall maintain at one of
its offices a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans and LOC Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the “REGISTER”).  The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent, the Issuing Bank and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary.  The Register shall be available for
inspection by the Borrower, the Issuing Lender and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.


 


(v)           Upon its receipt of a duly
completed Assignment and Acceptance executed by an assigning Lender and an
assignee, the assignee’s completed administrative questionnaire (unless the
assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written
consent to such assignment required by paragraph (b) of this Section, the
Administrative Agent shall accept such Assignment and Acceptance and record the
information contained therein in the Register. 
No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.


 


(c)           Any Lender may, without the consent of
the Borrower, the Administrative Agent, the Issuing Lender or the Swingline
Lender, sell participations to one or more banks or other entities (a “Participant”)
in all or a portion of such Lender’s rights and obligations under this Credit
Agreement (including all or a portion of its Commitments and the Loans owing to
it); provided that (A) such Lender’s obligations under this Credit
Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (C) the Consolidated Parties, the Administrative Agent, the Issuing
Lender and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this
Credit Agreement.  Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce the Credit Documents
and to approve any amendment, modification or waiver of any provision of the
Credit Documents; provided that such agreement or instrument may provide
that such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to


 


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Section 11.6(A) that
affects such Participant.  Subject to
paragraph (c)(ii) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 3.9, 3.11 and 3.12 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section.  To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 11.2 as
though it were a Lender, provided such Participant agrees to be subject to Section 3.14
as though it were a Lender.


 


(i)            A Participant
shall not be entitled to receive any greater payment under Sections 3.9, 3.11
and 3.12 than the applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower’s prior written
consent.  A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.11
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.11(d) as
though it were a Lender.


 


(d)           Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under this
Credit Agreement (i) to secure obligations of such Lender to a Federal
Reserve Bank as collateral security pursuant to Regulation A and any Operating
Circular issued by such Federal Reserve Bank, and this Section shall not
apply to any such pledge or assignment of a security interest; provided
that no such pledge or assignment of a security interest shall release a Lender
from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto, (ii) in the case of any Lender
which has made Tranche B Term Loans and is an investment fund, to the trustee
under the indenture to which such fund is a party in support of its obligations
to such trustee for the benefit of the applicable trust beneficiaries and (iii) to
appropriate entities within the Farm Credit System, as collateral security.


 


(e)           Any Lender may furnish any information
concerning the Consolidated Parties in the possession of such Lender from time
to time to assignees and participants (including prospective assignees and
participants), subject, however, to the provisions of Section 11.14
hereof.


 


11.4.        NO WAIVER; REMEDIES CUMULATIVE.


 


No failure or delay on the part of the
Administrative Agent or any Lender in exercising any right, power or privilege
hereunder or under any other Credit Document and no course of dealing between
the Administrative Agent or any Lender and any of the Credit Parties 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 and remedies provided herein
are cumulative and not exclusive of any rights or remedies which the
Administrative Agent or any Lender would otherwise have. No notice to or demand
on any Credit Party in any case shall entitle the Credit Parties to any other
or further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the Administrative Agent or the Lenders to any other or
further action in any circumstances without notice or demand.


 


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11.5.        EXPENSES; INDEMNIFICATION.


 


(a)           The Credit Parties jointly and
severally agree to pay on demand all reasonable costs and expenses of the
Administrative Agent in connection with the syndication, preparation,
execution, delivery, administration, modification, and amendment of this Credit
Agreement, the other Credit Documents, and the other documents to be delivered
hereunder, including, without limitation, the reasonable fees and expenses of
counsel for the Administrative Agent with respect thereto and with respect to
advising the Administrative Agent as to its rights and responsibilities under
the Credit Documents. The Credit Parties further jointly and severally agree to
pay on demand all reasonable costs and expenses of the Administrative Agent and
one counsel to all of the Lenders, if any, in connection with the enforcement
(whether through negotiations, legal proceedings, or otherwise) of the Credit
Documents and the other documents to be delivered hereunder, except to the
extent such claim, damage, loss, liability, cost, or expense results from the
gross negligence, bad faith, willful misconduct of the Person seeking
reimbursement or a breach by such Person of its obligations hereunder.


 


The Credit
Parties jointly and severally agree to indemnify and hold harmless the
Administrative Agent and each Lender and each of their Affiliates and their
respective officers, directors, trustees, employees and agents (each, an “INDEMNIFIED
PARTY”) from and against any and all obligations, penalties, actions, judgments,
suits claims, damages, actual losses, liabilities, costs, expenses and
disbursements (including, without limitation, reasonable attorneys’ fees of the
Administrative Agent and, except as provided below, one counsel to all of the
Lenders and excluding taxes) that may be incurred by or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any investigation,
litigation, or proceeding or preparation of defense in connection therewith)
the Credit Documents, any of the transactions contemplated herein or the actual
or proposed use of the proceeds of the Loans, except to the extent such claim,
damage, loss, liability, cost, or expense results from the gross negligence,
bad faith or willful misconduct of such Indemnified Party (or any of its
Affiliates or any their respective officers, directors, trustees, employees or
agents) or from a breach by such Indemnified Party (or any of its Affiliates or
any their respective officers, directors, trustees, employees or agents) of its
obligations hereunder. In the case of an investigation, litigation or other
proceeding to which the indemnity in this Section 11.5 applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by any of the Credit Parties, their respective directors,
shareholders or creditors or an Indemnified Party or any other Person or any
Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated. No party hereto shall assert
any claim against any other party hereto, any of their Affiliates, or any of
their respective directors, trustees, officers, employees, attorneys, agents,
and advisers, on any theory of liability, for special, indirect, consequential,
or punitive damages arising out of or otherwise relating to the Credit
Documents, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Loans. 
The Borrower shall be entitled to assume the defense of any action for
which indemnification is sought by an Indemnified Party hereunder with counsel
of the Borrower’s choice at its expense (in which case the Borrower shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by an Indemnified Person except as set forth below); provided, however,
that such counsel shall be reasonably satisfactory to each Indemnified
Party.  Notwithstanding the election by
the Borrower to assume the defense of any such action, each Indemnified Party
shall have the right to employ separate counsel and to participate in the
defense of such action, and the Borrower shall bear the reasonable fees, costs,
and expenses of


 


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such separate
counsel, if (i) the use of counsel chosen by the Borrower to represent
such Indemnified Party would present such counsel with a conflict of interest; (ii) the
actual or potential defendants in, or targets of, any such action include both
the Borrower and such Indemnified Party and such Indemnified Party shall have
reasonably concluded that there may be legal defenses available to it that are
different from or additional to those available to the Borrower (in which case
the Borrower shall not have the right to assume the defense or such action on
behalf of such Indemnified Party); (iii) the Borrower shall not have
employed counsel reasonably satisfactory to such Indemnified Party to represent
it within a reasonable time after notice of the institution of such action; or (iv) the
Borrower shall authorize such Indemnified Party to employ separate counsel at
the Borrower’s expense.


 


(b)           Without prejudice to the survival of
any other agreement of the Credit Parties hereunder, the agreements and
obligations of the Credit Parties contained in this Section 11.5 shall
survive the repayment of the Loans, LOC Obligations and other Credit Party
Obligations and the termination of the Commitments hereunder.


 


11.6.        AMENDMENTS, WAIVERS AND CONSENTS.


 


Neither this Credit Agreement nor any other Credit
Document nor any of the terms hereof or thereof may be amended, changed,
waived, discharged or terminated unless such amendment, change, waiver,
discharge or termination is in writing entered into by, or approved in writing
by, each of the Credit Parties party thereto and the Required Lenders, provided,
however, that:


 


(a)           without the consent of each Lender
directly affected thereby, neither this Credit Agreement nor any other Credit
Document may be amended, changed, waived, discharged or terminated so as to


 


(i)            extend any Commitment or the
final maturity of any Loan or of any reimbursement obligation, or any portion
thereof, arising from drawings under Letters of Credit, or extend or waive any
Principal Amortization Payment of any Loan, or any portion thereof,


 


(ii)           reduce the rate or extend
the time of payment of interest on any Loan or of any reimbursement obligation,
or any portion thereof, arising from drawings under Letters of Credit (other
than as a result of waiving the applicability of any post-default increase in
interest rates) or of any Fees,


 


(iii)          reduce or waive the
principal amount of any Loan or of any reimbursement obligation, or any portion
thereof, arising from drawings under Letters of Credit,


 


(iv)          increase the Commitment of a
Lender over the amount thereof in effect (it being understood and agreed that a
waiver of any condition precedent set forth in Section 5.2 or of any
Default or Event of Default or mandatory reduction in the Commitments shall not
constitute a change in the terms of any Commitment of any Lender),


 


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(v)           except as the result of or
in connection with an Asset Disposition not prohibited by Section 8.5,
release all or substantially all of the Collateral,


 


(vi)          except as the result of or
in connection with a dissolution, merger or disposition of a Consolidated Party
not prohibited by Section 8.4 or Section 8.5, release the Borrower or
substantially all of the other Credit Parties from its or their obligations
under the Credit Documents,


 


(vii)         amend, modify or waive any
provision of this Section 11.6 or Section 3.13(a),


 


(viii)        reduce any percentage specified in the
definition of Required Lenders, or


 


(ix)           consent to the assignment or
transfer by the Borrower or all or substantially all of the other Credit
Parties of any of its or their rights and obligations under (or in respect of)
the Credit Documents except as permitted hereby or thereby;


 


(b)           without the consent of Lenders (other
than Defaulting Lenders) holding in the aggregate at least a majority of the
outstanding Tranche B Term Loans (and Participation Interests therein), Section 3.3(b)(vi) may
not be amended, changed, waived, discharged or terminated so as to extend the
time for or change the amount or the manner of application of proceeds of any
mandatory prepayment required by Section 3.3(b)(ii), (iii) or (iv) hereof;


 


(c)           without the consent of the
Administrative Agent, no provision of Section 10 may be amended, changed,
waived, discharged or terminated;


 


(d)           without the consent of the Issuing
Lender, no provision of Section 2.2 may be amended, changed, waived,
discharged or terminated;


 


(e)           without the consent of the Swingline
Lender, no provision of Section 2.3 may be amended;


 


(f)            without the consent of Lenders holding
in the aggregate at least two-thirds of (i) the aggregate Revolving
Commitments and the outstanding Tranche B Term Loans or (ii) if all of the
Revolving Commitments have been terminated, the outstanding Loans and LOC
Obligations (including, without limitation, Participation Interests), amend
this Section 11.6 to impose any greater restriction on the ability of any
Lender to assign any of its rights and obligations hereunder; and


 


(g)           Section 7.10 and defined terms
used for purposes of Section 7.10 may be amended, modified, waived or
eliminated with the consent of the Required Revolving Lenders.


 


Notwithstanding the fact that the consent of
all the Lenders is required in certain circumstances as set forth above, (x) each
Lender is entitled to vote as such Lender sees fit on any bankruptcy
reorganization plan that affects the Loans, and each Lender acknowledges that
the provisions of Section 1126(c) of the Bankruptcy Code supersedes
the unanimous consent provisions set forth herein and (y) the Required
Lenders shall determine whether or not to allow a Credit Party to use


 


119

















 


cash collateral in the context of a
bankruptcy or insolvency proceeding and such determination shall be binding on
all of the Lenders.


 


Notwithstanding the foregoing, this Credit Agreement
may be amended (or amended and restated) with the written consent of the
Required Lenders, the Administrative Agent and the Borrower (a) to add one
or more additional credit facilities to this Credit Agreement and to permit the
extensions of credit from time to time outstanding thereunder and the accrued
interest and fees in respect thereof to share ratably in the benefits of this
Credit Agreement and the other Credit Documents with the Tranche B Term Loans
and Revolving Loans and the accrued interest and fees in respect thereof and (b) to
include appropriately the Lenders holding such credit facilities in any
determination of the Required Lenders.


 


Notwithstanding the foregoing, this Credit Agreement
and the Credit Documents may be amended with the written consent of the
Administrative Agent and the Borrower to reflect and implement the provisions
of Section 2.6.


 


In addition, notwithstanding the foregoing, this
Credit Agreement may be amended with the written consent of the Administrative
Agent, the Borrower and the Lenders providing the relevant Replacement Term
Loans (as defined below) to permit the refinancing of all outstanding Tranche B
Term Loans (“Refinanced Term Loans”) with a replacement “B” or “C” term
loan tranche hereunder (“Replacement Term Loans”), provided that (a) the
aggregate principal amount of such Replacement Term Loans shall not exceed the
aggregate principal amount of such Refinanced Term Loans, (b) the weighted
average life to maturity of such Replacement Term Loans shall not be shorter
than the weighted average life to maturity of such Refinanced Term Loans at the
time of such refinancing and (c) all other terms applicable to such
Replacement Term Loans shall be substantially identical to, or less favorable
to the Lenders providing such Replacement Term Loans than, those applicable to
such Refinanced Term Loans, except to the extent necessary to provide for
covenants and other terms applicable to any period after the latest final
maturity of the Refinanced Term Loans in effect immediately prior to such refinancing.


 


Notwithstanding the foregoing, at any time on or
prior to the date that is 120 days after the Closing Date, this Credit
Agreement and any other Credit Document may be amended solely with the consent
of the Administrative Agent and the Borrower without the need to obtain the
consent of any other Lender if such amendment is delivered in order to cure
ambiguities or defects of a technical or immaterial nature in this Credit
Agreement or the applicable Credit Document; provided that (i) the
Administrative Agent will notify the Lenders of such changes and (ii) such
changes shall not be adverse to any Lender in any material respect.


 


11.7.        COUNTERPARTS.


 


This Credit Agreement may be executed in any number
of counterparts, each of which when so executed shall be an original, but all
of which shall constitute one and the same instrument. It shall not be
necessary in making proof of this Credit Agreement to produce or account for
more than one such counterpart for each of the parties hereto. Delivery by facsimile
by any of the parties hereto of an executed counterpart of this Credit
Agreement shall be as


 


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effective as an original
executed counterpart hereof and shall be deemed a representation that an
original executed counterpart hereof will be delivered.


 


11.8.        HEADINGS.


 


The headings of the sections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.


 


11.9.        SURVIVAL.


 


All indemnities set forth herein, including, without
limitation, in Section 2.2(i), 3.11, 3.12, 10.5 or 11.5 shall survive the
execution and delivery of this Credit Agreement, the making of the Loans, the
issuance of the Letters of Credit, the repayment of the Loans, LOC Obligations
and other obligations under the Credit Documents and the termination of the
Commitments hereunder, and all representations and warranties made by the
Credit Parties herein shall survive until this Credit Agreement shall be terminated
in accordance with the terms of Section 11.13(b).


 


11.10.      GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE.


 


(a)           THIS CREDIT AGREEMENT AND, UNLESS
OTHERWISE EXPRESSLY PROVIDED THEREIN, THE OTHER CREDIT DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK. Any legal action or proceeding with respect to this Credit Agreement or
any other Credit Document may be brought in the courts of the State of New York
in New York County, or of the United States for the Southern District of New
York, and, by execution and delivery of this Credit Agreement, each of the
Credit Parties hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the nonexclusive jurisdiction of such
courts. Each of the Credit Parties 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 it at the address set out for notices pursuant to Section 11.1,
such service to become effective three (3) days after such mailing.
Nothing herein shall affect the right of the Administrative Agent or any Lender
to serve process in any other manner permitted by law or to commence legal
proceedings or to otherwise proceed against any Credit Party in any other
jurisdiction.


 


(b)           Each of the Credit Parties 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 Credit Agreement or any other Credit Document
brought in the courts referred to in subsection (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)           TO THE EXTENT PERMITTED BY LAW, EACH OF
THE ADMINISTRATIVE AGENT, THE LENDERS AND EACH OF THE CREDIT PARTIES HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS


 


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CREDIT AGREEMENT,
ANY OF THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


11.11.      SEVERABILITY.


 


If any provision of any of the Credit Documents is
determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.


 


11.12.      ENTIRETY.


 


This Credit Agreement together with the other Credit
Documents represent the entire agreement of the parties hereto and thereto, and
supersede all prior agreements and understandings, oral or written, if any,
including any commitment letters or correspondence relating to the Credit
Documents or the transactions contemplated herein and therein.


 


11.13.      BINDING EFFECT; TERMINATION.


 


(a)           This Credit Agreement shall become
effective at such time on or after the Closing Date when it shall have been
executed by each Credit Party and the Administrative Agent, and the
Administrative Agent shall have received copies hereof (telefaxed or otherwise)
which, when taken together, bear the signatures of each Lender, and thereafter
this Credit Agreement shall be binding upon and inure to the benefit of each
Credit Party, the Administrative Agent and each Lender and their respective
successors and assigns.


 


(b)           The term of this Credit Agreement shall
be until the Credit Party Obligations under clause (i) of such definition
(other than contingent indemnity obligations) are Fully Satisfied.


 


11.14.      CONFIDENTIALITY.


 


i)              The
Administrative Agent and each Lender (each, a “LENDING PARTY”) agrees to keep
confidential any information furnished or made available to it by or on behalf
of the Credit Parties pursuant to this Credit Agreement; provided that
nothing herein shall prevent any Lending Party from disclosing such information
(a) to any other Lending Party or any Affiliate of any Lending Party, or
any officer, director, trustee, employee, agent, or advisor of any Lending
Party or Affiliate of any Lending Party, provided in each case that such Person
is informed of the confidential nature of such information, (b) to any
other Person if reasonably incidental to the administration of the Credit
Facilities, provided in each case that such Person is informed of the confidential
nature of such information, (c) as required by any law, rule, or
regulation, (d) upon the order of any court or administrative agency, (e) upon
the request or demand of any regulatory agency or authority having jurisdiction
over such Lending Party, (f) that is or becomes available to the public or
that is or becomes available to any Lending Party other than as a result of a
disclosure by any Lending Party or other Person bound by this Section 11.14
prohibited by this Credit Agreement, (g) in connection with any litigation
to which such Lending Party or any of its Affiliates may be a party, provided,
such Lending Party will, to the extent practical, use reasonable efforts to
notify the Borrower prior to such disclosure, (h) to the


 


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extent necessary in
connection with the exercise of any remedy under this Credit Agreement or any
other Credit Document, (i) to the National Association of Insurance
Commissioners or any similar organization or any nationally recognized rating
agency that requires access to information about a Lender’s investment
portfolio in connection with ratings issued with respect to such Lender, (j) to
any direct or indirect contractual counterparty in swap agreements or such contractual
counterparty’s professional advisor (so long as such contractual counterparty
or professional advisor to such contractual counterparty (i) has been
approved in writing by the Borrower and (ii) agrees in a writing
enforceable by the Borrower to be bound by the provisions of this Section 11.14)
and (k) subject to provisions substantially similar to those contained in
this Section 11.14, to any actual or proposed participant or assignee.


 


Each Lender acknowledges that information furnished
to it pursuant to this Agreement or the other Credit Documents may include
material non-public information concerning the Borrower and its Affiliates and
their related parties or their respective securities, and confirms that it has
developed compliance procedures regarding the use of material non-public
information and that it will handle such material non-public information in
accordance with those procedures and applicable law, including Federal and
state securities laws.


 


All information, including requests for waivers and
amendments, furnished by the Borrower or the Administrative Agent pursuant to,
or in the course of administering, this Agreement or the other Credit Documents
will be syndicate-level information, which may contain material non-public
information about the Borrower and its Affiliates and their related parties or
their respective securities. 
Accordingly, each Lender represents to the Borrower and the
Administrative Agent that it has identified in its administrative questionnaire
a credit contact who may receive information that may contain material
non-public information in accordance with its compliance procedures and
applicable law, including Federal and state securities laws.


 


11.15.      SOURCE OF FUNDS.


 


Each of the Lenders hereby represents and warrants
to the Borrower that at least one of the following statements is an accurate
representation as to the source of funds to be used by such Lender in
connection with the financing hereunder:


 


(a)           no part of such funds constitutes
assets allocated by such Lender to any separate account maintained by such
Lender in which any employee benefit plan (or its related trust) has any
interest;


 


(b)           to the extent that any part of such
funds constitutes assets allocated to any separate account maintained by such
Lender, such Lender has disclosed to the Borrower the name of each employee
benefit plan whose assets in such account exceed 10% of the total assets of
such account as of the date of such purchase (and, for purposes of this clause
(b), all employee benefit plans maintained by the same employer or employee
organization are deemed to be a single plan);


 


(c)           to the extent that any part of such
funds constitutes assets of an insurance company’s general account, such
insurance company has complied with all of the requirements of the regulations
issued under Section 401(c)(1)(A) of ERISA; or


 


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(d)           such funds constitute assets of one or
more specific benefit plans which such Lender has identified in writing to the
Borrower.


 


As used in this Section 11.15, the terms
“employee benefit plan” and “separate account” shall have the respective
meanings assigned to such terms in Section 3 of ERISA.


 


11.16.      REGULATION D.


 


Each of the Lenders hereby represents and warrants
to the Borrower that it is a commercial lender, other financial institution or
other “accredited” investor (as defined in SEC Regulation D) which makes or
acquires or loans in the ordinary course of business and that it will make or
acquire Loans for its own account in the ordinary course of business.


 


11.17.      CONFLICT.


 


To the extent that there is a conflict or
inconsistency between any provision hereof, on the one hand, and any provision
of any Credit Document, on the other hand, this Credit Agreement shall control.


 


11.18.      USA PATRIOT ACT


 


Each Lender hereby
notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act,
it is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and
other information that will allow such Lender to identify the Borrower in
accordance with the USA PATRIOT Act.


 


11.19.      NO NOVATION;
AMENDMENT AND RESTATEMENT.


 


(a)           This Agreement does not extinguish the
outstanding indebtedness evidenced by the Existing Credit Agreement or any
Credit Documents or discharge or release any lien or security interest or any
other security for the Loans or other obligations under the Existing Credit
Agreement or any other Credit Document, all of which liens and security
interests shall continue to secure the Loans and other Credit Party Obligations
under this Credit Agreement and the other Credit Documents.  Nothing herein contained shall be construed
as a substitution or novation of the original indebtedness or of the
instruments securing the same, which shall remain in full force and effect,
except as amended hereby or by instruments executed concurrently herewith.


 


(b)           This Credit Agreement shall be deemed
to be an amendment to and restatement of the Existing Credit Agreement.  All extensions of credit under the Existing
Credit Agreement on the Closing Date shall remain outstanding following the
Closing Date as specified in Sections 2.7 and 2.2(a) and shall be
continued under this Credit Agreement, as amended in the manner set forth
herein.  All references to the Existing
Credit Agreement in any other agreement or document shall, on and after the
Closing Date, be deemed to refer to the Existing Credit Agreement as amended
and restated hereby.  Each Credit Party
agrees, acknowledges and affirms that (i) each of the Collateral Documents
to which it is a party shall remain in full force and effect except to the
extent amended in connection hereunder and shall constitute security for


 


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all
extensions of credit pursuant to the Existing Credit Agreement as amended and
restated hereby and (ii) any reference to the Existing Credit Agreement
appearing in any such Collateral Document shall on and after the Closing Date
be deemed to refer to the Existing Credit Agreement as amended and restated
hereby.


 


(c)           On the Closing Date, each Exiting
Lender shall be deemed to agree that, upon its acceptance of the outstanding
amounts owed to it under the Existing Credit Agreement on the Closing Date,
such Exiting Lender shall have consented to the amendment and restatement of
the Existing Credit Agreement as provided herein, the redesignation of certain
Loans and Commitments (each as defined in the Existing Credit Agreement) set
forth in Sections 2.7 and 2.2(a) hereof and the assignment of the Loans
and all other rights under the Existing Credit Agreement to the extent
necessary to give effect to such redesignation set forth in Sections 2.7 and
2.2(a).


 


[Signature
Pages to Follow]


 


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IN WITNESS WHEREOF, each of the parties hereto has
caused a counterpart of this Credit Agreement to be duly executed and delivered
as of the date first above written.


 


	
  BORROWER:

  	
   

  	
  BIRDS EYE
  FOODS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Earl
  Powers 

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Earl Powers 

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Executive Vice
  President and Secretary

  
	
   

  	
   

  	
   

  
	
  PARENT:

  	
   

  	
  BIRDS EYE
  HOLDINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Earl
  Powers 

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Earl Powers 

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Secretary
  and Treasurer

  
	
   

  	
   

  	
   

  
	
  SUBSIDIARY
  GUARANTORS:

  	
   

  	
  LINDEN OAKS
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Timothy
  Benjamin

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Timothy
  Benjamin

  
	
   

  	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  KENNEDY
  ENDEAVORS, INCORPORATED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Earl
  Powers 

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Earl Powers

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BEMSA
  HOLDING, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Earl
  Powers 

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Earl Powers

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President and Secretary

  



 


126

















 


	
  ADMINISTRATIVE
  AGENT:

  	
   

  	
  JPMORGAN
  CHASE BANK, N.A. in its capacity as Administrative Agent and as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ John C.
  Riordan

  
	
   

  	
   

  	
   

  	
  Name:

  	
  John C.
  Riordan

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


127

















 


	
  CO-SYNDICATION
  AGENT:

  	
   

  	
  BANK OF
  AMERICA, N.A., in its capacity as Co-Syndication Agent and as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Alyssa
  Trakas

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Alyssa
  Trakas

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


128

















 


	
  CO-SYNDICATION
  AGENT:

  	
   

  	
  UBS
  SECURITIES LLC, in its capacity as Co-Syndication Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ David B.
  Julie

  
	
   

  	
   

  	
   

  	
  Name:

  	
  David B.
  Julie

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Associate
  Director, Banking Products Services, US 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Mary E.
  Evans

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Mary E.
  Evans

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Associate
  Director, Banking Products Services, US

  



 


129

















 


	
  CO-DOCUMENTATION
  AGENT:

  	
   

  	
  COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK
  NEDERLAND”, NEW YORK BRANCH, in its capacity as Co-Documentation Agent and as a
  Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Ian
  Baggott

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Ian Baggott

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Head of
  Leveraged Finance, US and Canada

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Brett
  Delfino 

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Brett
  Delfino 

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Executive
  Director

  



 


130

















 


	
  CO-DOCUMENTATION
  AGENT:

  	
   

  	
  M&T BANK
  CORPORATION, in its capacity as Co-Documentation Agent and as a Lender 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Timothy
  G. Denniston

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Timothy G.
  Denniston

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


131

















 


	
  LENDERS:

  	
   

  	
  FIFTH THIRD
  BANK

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ James M.
  Janovsky

  
	
   

  	
   

  	
   

  	
  Name:

  	
  James M.
  Janovsky

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


132

















 


	
  LENDERS:

  	
   

  	
  FIVE STAR
  BANK

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ David G.
  Case

  
	
   

  	
   

  	
   

  	
  Name:

  	
  David G.
  Case

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Vice
  President

  



 


133

















 


	
  LENDERS:

  	
   

  	
  GENERAL
  ELECTRIC CAPITAL CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Mark
  Blankstein

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Mark
  Blankstein

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Duly
  Authorized Signatory

  



 


134