Exhibit 10.1


 


AMENDMENT NO. 2 TO CREDIT
AGREEMENT


 


THIS AMENDMENT NO. 2 TO
CREDIT AND GUARANTY AGREEMENT (this “Amendment”), dated as of April 16,
2010, is made and entered into among DOUGLAS DYNAMICS, L.L.C., a Delaware
limited liability company (the “Borrower”), and each of the Lenders (as hereinafter defined) party hereto.


 


RECITALS


 


A.            The Borrower and the Lenders party hereto are parties to
that certain Credit and Guaranty Agreement dated as of May 21, 2007 (as
amended by Amendment No. 1 to Credit and Guaranty Agreement, dated as of December 19,
2008 among the Borrower and each of the Lenders party thereto, the “Credit
Agreement”) among the Borrower, Credit Suisse AG, Cayman Islands Branch, as
Administrative Agent (in such capacity, the “Administrative Agent”) on
behalf of the Lenders, each lender from time to time party thereto (the “Lenders”)
and each of the other banks, financial institutions and other entities from
time to time party thereto.


 


B.            The Borrower has requested that the Lenders agree, subject
to the conditions and on the terms set forth in this Amendment, to amend
certain provisions of the Credit Agreement as set forth herein.


 


C.            The Lenders are willing to amend the Credit Agreement,
subject to the conditions and on the terms set forth below.


 


AGREEMENT


 


NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower and each of the Lenders party hereto agree as
follows:


 


1.             Definitions.           Except as otherwise expressly
provided herein, capitalized terms used in this Amendment shall have the
meanings given in the Amended Credit Agreement (as defined below), and the rules of
interpretation set forth in the Amended Credit Agreement shall apply to this
Amendment.  In addition:


 

















 


“Qualifying IPO” means the consummation of the
first underwritten public offering of the Capital Stock (other than
Disqualified Capital Stock) of Holdings following the Closing Date pursuant to
a registration statement filed with the Securities and Exchange Commission in
accordance with the Securities Act.


 


“Qualifying IPO Payment” means, concurrent with
the closing of a Qualifying IPO, the one-time payment to Sponsor in connection
with the termination of the Management Services Agreement in an aggregate amount
not to exceed $6,000,000.


 


“Qualifying Preferred Stock Redemption” means,
concurrent with the closing of a Qualifying IPO, the payment of $1,000 to
Aurora Equity Partners II L.P. and $1,000 to Ares Limited Partnership in
respect of the redemption of the one share of Series B Preferred Stock and
Series C Preferred Stock held by Aurora Equity Partners II L.P. and the
Ares Limited Partnership, respectively.


 


“Qualifying Senior Notes Redemption” means,
concurrent with the closing of a Qualifying IPO, the Borrower and DD Finance (i) have
given irrevocable and unconditional notice of redemption for all of the
outstanding Senior Notes, (ii) have timely and irrevocably deposited or
caused to be deposited with the trustee under the Senior Notes Indenture
proceeds of a Qualifying IPO, proceeds of Additional Term Loans, Cash and/or
Proceeds of Revolving Loans (as defined in the Revolving Credit Facility)
sufficient to pay and discharge the entire indebtedness (including all
principal, premium, if any, and accrued interest) on all outstanding Senior
Notes and (iii) have satisfied all other conditions precedent to the
discharge of the Senior Notes Indenture set forth in Section 8.8 of the
Senior Notes Indenture.


 


2.             Consent
and Agreement.  Notwithstanding
anything to the contrary in the Credit Documents, the Lenders hereby consent to
(i) the redemption of the Senior Notes by the Borrower pursuant to a
Qualifying Senior Notes Redemption, (ii) the payment of the Qualifying IPO
Payment and (iii) the redemption by Holdings of all preferred stock of
Holdings pursuant to a Qualifying Preferred Stock Redemption.  The Borrower hereby agrees to consummate a
Qualifying Senior Notes Redemption concurrently with the consummation of a
Qualifying IPO.


 


3.             Amendment.  Concurrently with the consummation of a
Qualifying IPO, the terms and provisions of the Credit Agreement are hereby
amended by replacing such terms and provisions in their entirety with the terms
and provisions set forth in the Credit Agreement attached hereto as Exhibit A
(the “Amended Credit Agreement”).


 


4.             Representations and
Warranties.  To induce
the Lenders to agree to this Amendment, the Borrower represents to the
Administrative Agent and the Lenders that as of the date hereof:


 


(a)           the
Borrower has all power and authority to enter into this Amendment and to carry
out the transactions contemplated by, and to perform its obligations under or
in respect of, this Amendment;


 


(b)           the
execution and delivery of this Amendment and the performance of the obligations
of the Borrower hereunder have been duly authorized by all necessary action on
the part of the Borrower;


 


(c)           the
execution and delivery of this Amendment by the Borrower, and the performance
of the obligations of the Borrower hereunder do not and will not conflict with
or violate (i) any provision of the articles of incorporation or bylaws
(or similar constituent documents) of the Borrower, (ii) any applicable
provision of any material law, statute, rule, regulation, order, writ,
injunction or decree of any court or Governmental Authority or (iii) any
indenture, agreement or instrument to which the Borrower is a party or by which
the Borrower or any property of the Borrower, is bound, and do not and will not
require any consent or approval of any Person that has not been obtained;


 


2

















 


(d)           this
Amendment has been duly executed and delivered by the Borrower and the Credit
Agreement and the other Credit Documents, as modified by this Amendment, are
the legal, valid and binding obligations of the Borrower, enforceable in
accordance with their terms, except as enforceability may be limited by
applicable bankruptcy, 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);


 


(e)           no event
has occurred and is continuing or will result from the execution and delivery
of this Amendment or the consummation of a Qualifying IPO, the Qualifying IPO
Payment, the Qualifying Senior Notes Redemption and/or the Qualifying Preferred
Stock Redemption (in each case, after giving effect to this Amendment) that
would constitute a Default or an Event of Default;


 


(f)            since December 31,
2006, no event has occurred that has resulted, or could reasonably be expected
to result, in a Material Adverse Effect;


 


(g)           each of
the representations and warranties made by the Borrower in or pursuant to the
Credit Documents are true and correct in all material respects on and as of the
date this representation is being made, except for representations and
warranties expressly stated to relate to a specific earlier date, in which case
such representations and warranties shall be true and correct in all material
respects as of such earlier date;


 


(h)           the
Borrower has obtained $40 million in Additional Term Loan Commitments; and


 


(i)            after
giving effect to (i) a Qualifying IPO, (ii) the redemption of the
Senior Notes by the Borrower pursuant to the Qualifying Senior Notes
Redemption, (iii) the payment of the Qualifying IPO Payment, (iv) the
redemption by Holdings of all preferred stock of Holdings pursuant to the
Qualifying Preferred Stock Redemption and (v) the incurrence of $40
million aggregate principal amount of Additional Term Loan Commitments, the
aggregate amount of (1) Cash of the Borrower in Deposit Accounts subject
to a Blocked Account Agreement and (2) Excess Availability (as defined in
the Revolving Credit Facility) shall be at least $15,000,000; provided, that
Excess Availability will be calculated without giving effect to any Cash.


 


Each
Lender party to this Amendment represents and warrants to each Agent and each
Lender that it has made its own independent investigation of the terms of the
Credit Agreement and the Amended Credit Agreement and the facts and
circumstances surrounding this Amendment, and has not relied in any way on any
statement, advice or recommendation of any Agent or Lender in connection
herewith.  No Agent shall have any duty
or responsibility, either initially or on a continuing basis, to make any such
investigation on behalf of Lenders or to provide any Lender with any
information, advice or recommendation with respect thereto, whether coming into
its possession before the execution of this Amendment or at any time or times
thereafter, and no Agent shall have any responsibility with respect to the
accuracy of or the completeness of any information provided to Lenders relating
to any of the foregoing.


 


5.             Effectiveness of Amendments.  This Amendment (other than Section 6
hereof which shall be effective as set forth in such Section) shall be
effective as of the first date (the “Second Amendment Effective Date”)
on which all of the following conditions precedent have been satisfied:


 


(a)           The
Administrative Agent shall have received a counterpart signature page of
this Amendment duly executed by each of the Credit Parties and the Requisite
Lenders;


 


3

















 


(b)           The
Administrative Agent shall have received a certificate signed by the chief
financial officer of the Borrower dated the Second Amendment Effective Date,
certifying (A) that the representations and warranties contained in Section 4
of this Amendment are true and correct as of the Second Amendment Effective
Date and (B) that no event shall have occurred and be continuing or would
result from the consummation of a Qualifying IPO, the Qualifying Senior Notes
Redemption, the Qualifying Preferred Stock Redemption and/or the Qualifying IPO
Payment (in each case, after giving effect to this Amendment) that would
constitute a Default or an Event of Default;


 


(c)           The
Administrative Agent shall have received all fees required to be paid, and all
expenses for which invoices have been presented (including the reasonable fees
and expenses of legal counsel), in connection with this Amendment (or shall
have made arrangements for the payment thereof satisfactory to the
Administrative Agent);


 


(d)           a
Qualifying IPO shall have occurred;


 


(e)           Borrower
shall have delivered or cause to be delivered any legal opinions or other
documents requested by Administrative Agent connection with the making of the
Additional Term Loans;


 


(f)            Each
Credit Party shall have delivered a solvency certificate in form and substance
satisfactory to the Administrative Agent; and


 


(g)           Borrower
shall pay, to each Lender executing this Amendment on or before April 16,
2010 by 12:00 p.m. New York City Time, an amendment fee equal to 0.25% of
such Lender’s Term Loan Exposure (before giving effect to the making of any
Additional Term Loans), which amendment fee shall be payable concurrently with
the consummation of the Qualifying IPO.


 


6.             Delivery of Financial
Statements. 
Notwithstanding the provisions set forth in Section 5.1(c) of
the Credit Agreement to the contrary, the financial statements of Holdings and
its Subsidiaries for the Fiscal Year ended December 31, 2009 that were
delivered to the Administrative Agent prior to the date hereof shall be deemed
to satisfy the requirements of Section 5.1(c) that such financial
statements be of the Company and its Subsidiaries solely with respect to the
Fiscal Year ended December 31, 2009. 
Notwithstanding the provisions set forth in Section 5.1(b) of
the Credit Agreement requiring delivery of certain financial statements of the
Company and its Subsidiaries, delivery of comparable financial statements of
Holdings and its Subsidiaries shall be deemed to satisfy such requirement
solely with respect to the Fiscal Quarters ending March 31, 2010 and June 30,
2010.  Notwithstanding the provisions of Section 5
of this Amendment, the provisions of this Section 6 shall be effective
immediately upon receipt by Administrative Agent of a counterpart signature page of
this Amendment duly executed by each of the Credit Parties and the Requisite
Lenders.


 


7.             Miscellaneous.  THIS AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK, WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF (OTHER THAN SECTION 5-1401
OF THE NEW YORK GENERAL OBLIGATIONS LAW).  This Amendment may be executed in one or more
duplicate counterparts and when signed by all of the parties listed below shall
constitute a single binding agreement. 
Except for the amendments set forth in Section 3 hereof and the
consent set forth in Section 2 hereof, all of the provisions of the Credit
Agreement and the other Credit Documents shall remain in full force and
effect.  The foregoing amendments shall
be strictly construed in accordance with the express terms thereof.  Except with respect to the matters
specifically waived or amended thereby, Section 2 and 3 above shall not
operate as a waiver of any right, remedy, power or privilege of any Lender or
the Administrative Agent under the Credit Agreement or any other Credit
Document or of any other term or condition of the Credit Agreement or any other
Credit Document.  This Amendment shall be
deemed a “Credit Document” as defined in the Credit Agreement.  Sections 10.15 and 10.16 of the Credit
Agreement shall apply to this


 


4

















 


Amendment
and all past and future amendments to the Credit Agreement and other Credit
Documents as if expressly set forth herein or therein.


 


8.             Additional
Term Loans.  Concurrent with
the occurrence of the Second Amendment Effective Date, the Persons party to a
Term Loan Joinder Agreement as lenders (each an “Additional Term Loan Lender”)
shall make Term Loans (the “Additional Term Loans”) to the Borrower in an
amount equal to the amount set forth in such Additional Term Loan Lender’s Term
Loan Joinder Agreement (the “Additional Term Loan Commitments”); provided, that
such Additional Term Loans shall be made with 1% of original issue discount,
such that the amount funded on the Second Amendment Effective Date by each
Lender in respect of its Additional Term Loans shall be 99% of its Additional
Term Loan Commitment.  The aggregate
amount of the Additional Term Loan Commitments is $40,000,000.  Such Additional Term Loan Commitments shall
be effected pursuant to one or more Term Loan Joinder Agreements executed and
delivered by Borrower, each Additional Term Loan Lender and Administrative
Agent, and each of which shall be recorded in the Register and shall be subject
to the requirements set forth in Section 2.19(c) of the Amended
Credit Agreement.  The amount of each
Additional Term Loan owing to each Additional Term Loan Lender as of the Second
Amendment Effective Date (before giving effect to any subsequent repayments)
shall be an amount equal to 100% of such Additional Term Loan Lender’s
Additional Term Loan Commitment, irrespective that the amount funded on the
Second Amendment Effective Date is 99% of such Additional Term Loan
Commitment.  The terms of the Additional
Term Loan Commitments shall be as set forth in the Amended Credit Agreement.


 


9.             Acknowledgement
and Consent.


 


Each Guarantor has
read this Amendment and consents to the terms hereof and further hereby
confirms and agrees that, notwithstanding the effectiveness of this Amendment,
the obligations of such Guarantor under, and the Liens granted by such
Guarantor as collateral security for the indebtedness, obligations and
liabilities evidenced by the Credit Agreement and the other Credit Documents
pursuant to, each of the Credit
Documents to which such Guarantor is a party shall not be impaired and
each of the Credit Documents to
which such Guarantor is a party is, and shall continue to be, in full force and
effect and is hereby confirmed and ratified in all respects.  Each of Holdings, Borrower and the Guarantor
Subsidiaries hereby acknowledges and agrees that the Secured Obligations under,
and as defined in, the Term Pledge and Security Agreement dated as of May 21,
2007, by and among Holdings, Borrower, the Guarantor Subsidiaries and Administrative
Agent (the “Pledge and Security Agreement”) and, with respect to the other
Collateral Documents, the Obligations secured by the Liens granted thereby, will
include all Obligations under, and as defined in, the Amended Credit Agreement.


 


Each
Guarantor acknowledges and agrees that (i) notwithstanding the conditions
to effectiveness set forth in this Amendment, such Guarantor is not required by
the terms of the Credit Agreement or any other Credit Document to consent to
the amendments to the Credit Agreement effected pursuant to this Amendment and (ii) nothing
in the Credit Agreement, this Amendment or any other Credit Document shall be
deemed to require the consent of such Guarantor to any future amendments to the
Credit Agreement.


 


10.           Consent
to ABL Amendment and Intercreditor Amendment.


 


(a)           Pursuant
to Section 5.3(a) of the Intercreditor Agreement, the Lenders party
hereto hereby consent to (i) an amendment to the ABL Credit Agreement (as
defined in the Intercreditor Agreement) in substantially the form of Exhibit B
and (ii) any amendments to the other ABL Loan Documents (as defined in the
Intercreditor Agreement) executed in connection therewith; and


 


5

















 


(b)           The
Lenders party hereto hereby consent to the execution of an amendment to the
Intercreditor Agreement in substantially the form of Exhibit C (the “Intercreditor
Amendment”) and hereby authorize and instruct (i) the Administrative
Agent to execute the Intercreditor Amendment in its capacity as Term Administrative
Agent thereunder and (ii) the Collateral Agent to execute the
Intercreditor Amendment in its capacity as Term Collateral Agent thereunder.


 


[REMAINDER OF PAGE
INTENTIONALLY LEFT BLANK]


 


6

















 


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


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  DOUGLAS DYNAMICS, L.L.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert McCormick

  
	
   

  	
  Name:

  	
  Robert McCormick

  
	
   

  	
  Title:

  	
  VP CFO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GUARANTORS
  (for purposes of Section 9):

  
	
   

  	
   

  
	
   

  	
  DOUGLAS DYNAMICS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert McCormick

  
	
   

  	
  Name:

  	
  Robert McCormick

  
	
   

  	
  Title:

  	
  VP CFO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DOUGLAS DYNAMICS FINANCE COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert McCormick

  
	
   

  	
  Name:

  	
  Robert McCormick

  
	
   

  	
  Title:

  	
  VP CFO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FISHER, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert McCormick

  
	
   

  	
  Name:

  	
  Robert McCormick

  
	
   

  	
  Title:

  	
  VP CFO

  



 


Amendment No. 2


 

















 


	
   

  	
  Russell Investment
  Company plc, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Bishof

  
	
   

  	
  Name:

  	
  Michael Bishof

  
	
   

  	
  Title:

  	
  COO, Logan Circle
  Partners

  
				



 


Amendment No. 2


 














 


	
   

  	
  Russell
  Multi-Manager Bond Fund, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Bishof

  
	
   

  	
  Name:

  	
  Michael
  Bishof

  
	
   

  	
  Title:

  	
  COO,
  Logan Circle Partners

  



 


Amendment
No. 2


 

















 


	
   

  	
  Russell
  Strategic Bond Fund, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Bishof

  
	
   

  	
  Name:

  	
  Michael
  Bishof

  
	
   

  	
  Title:

  	
  COO,
  Logan Circle Partners

  



 


Amendment
No. 2


 

















 


	
   

  	
  Russell
  Institutional Funds, LLC – Russell Core Bond  Fund, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Bishof

  
	
   

  	
  Name:

  	
  Michael
  Bishof

  
	
   

  	
  Title:

  	
  COO,
  Logan Circle Partners

  



 


Amendment
No. 2


 

















 


	
   

  	
  Integrys
  Energy Group, Inc. Retirement Plan Trust, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Bishof

  
	
   

  	
  Name:

  	
  Michael
  Bishof

  
	
   

  	
  Title:

  	
  COO,
  Logan Circle Partners

  



 


Amendment
No. 2


 

















 


	
   

  	
  Allina
  Health System Trust, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Bishof

  
	
   

  	
  Name:

  	
  Michael
  Bishof

  
	
   

  	
  Title:

  	
  COO,
  Logan Circle Partners

  



 


Amendment
No. 2


 

















 


	
   

  	
  Sunoco
  Inc Master Retirement Trust, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Bishof

  
	
   

  	
  Name:

  	
  Michael
  Bishof

  
	
   

  	
  Title:

  	
  COO,
  Logan Circle Partners

  



 


Amendment
No. 2


 

















 


 


	
   

  	
  Atrium
  VI

  
	
   

  	
   

  
	
   

  	
  By:
  Credit Suisse Alternative Capital, Inc., as collateral manager

  
	
   

  	
   

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David H. Lerner

  
	
   

  	
  Name:

  	
  David
  H. Lerner

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


Amendment
No. 2


 

















 


	
   

  	
  Atrium
  IV

  
	
   

  	
   

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David H. Lerner

  
	
   

  	
  Name:

  	
  David
  H. Lerner

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


Amendment
No. 2


 

















 


	
   

  	
  Madison
  Park Funding IV, Ltd.

  By Credit Suisse Alternative Capital, Inc., as collateral manager

  
	
   

  	
   

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David H. Lerner

  
	
   

  	
  Name:

  	
  David
  H. Lerner

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


Amendment
No. 2


 

















 


	
   

  	
  Atrium
  III

  
	
   

  	
   

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David H. Lerner

  
	
   

  	
  Name:

  	
  David
  H. Lerner

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


Amendment
No. 2


 














 


	
   

  	
  CSAM
  Funding III

  
	
   

  	
   

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David H. Lerner

  
	
   

  	
  Name:

  	
  David
  H. Lerner

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


Amendment
No. 2


 

















 


	
   

  	
  CSAM
  Funding IV

  
	
   

  	
   

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David H. Lerner

  
	
   

  	
  Name:

  	
  David
  H. Lerner

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


Amendment
No. 2


 

















 


	
   

  	
  Madison
  Park Funding I, Ltd,

  
	
   

  	
   

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David H. Lerner

  
	
   

  	
  Name:

  	
  David
  H. Lerner

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


Amendment
No. 2


 

















 


	
   

  	
  Madison
  Park Funding III, Ltd.

  By Credit Suisse Alternative Capital, Inc., as collateral manager

  
	
   

  	
   

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David H. Lerner

  
	
   

  	
  Name:

  	
  David
  H. Lerner

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


Amendment
No. 2


 

















 


	
   

  	
  Madison
  Park Funding VI, Ltd.

  By: Credit Suisse Alternative Capital, Inc., as collateral manager

  
	
   

  	
   

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David H. Lerner

  
	
   

  	
  Name:

  	
  David
  H. Lerner

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


Amendment
No. 2


 

















 


	
   

  	
  Credit
  Suisse Syndicated Loan Fund

  
	
   

  	
  By:
  Credit Suisse Alternative Capital, Inc., as Agent (Subadviser) for Credit
  Suisse Asset Management (Australia) Limited, the Responsible Entity for
  Credit Suisse Syndicated Loan Fund 

  
	
   

  	
   

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David H. Lerner

  
	
   

  	
  Name:

  	
  David
  H. Lerner

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


Amendment
No. 2


 

















 


	
   

  	
  Castle
  Garden Funding

  
	
   

  	
   

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David H. Lerner

  
	
   

  	
  Name:

  	
  David
  H. Lerner

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


Amendment
No. 2


 

















 


	
   

  	
  Madison
  Park Funding V, Ltd.

  
	
   

  	
  By:  Credit Suisse
  Alternative Capital, Inc., as collateral manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David H. Lerner

  
	
   

  	
  Name:

  	
  David
  H. Lerner

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


Amendment
No. 2


 

















 


	
   

  	
  Atrium
  V

  
	
   

  	
  By:  Credit Suisse
  Alternative Capital, Inc., as collateral manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David H. Lerner

  
	
   

  	
  Name:

  	
  David
  H. Lerner

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


Amendment
No. 2


 

















 


	
   

  	
  Madison
  Park Funding II, Ltd.

  
	
   

  	
  By  Credit Suisse
  Alternative Capital, Inc. as collateral manager

  
	
   

  	
   

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David H. Lerner

  
	
   

  	
  Name:

  	
  David
  H. Lerner

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


Amendment
No. 2


 














 


	
   

  	
  WHITNEY
  CLO I,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John M. Casparian

  
	
   

  	
  Name:

  	
  John
  M. Casparian

  
	
   

  	
  Title:

  	
  Co-President

  
	
   

  	
   

  	
   

  
	
   

  	
  Churchill
  Pacific Asset Management LLC

  



 

















 


	
   

  	
  SIERRA
  CLO II,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John M. Casparian

  
	
   

  	
  Name:

  	
  John
  M. Casparian

  
	
   

  	
  Title:

  	
  Co-President

  
	
   

  	
   

  	
   

  
	
   

  	
  Churchill
  Pacific Asset Management LLC

  



 

















 


	
   

  	
  SHASTA
  CLO I,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John M. Casparian

  
	
   

  	
  Name:

  	
  John
  M. Casparian

  
	
   

  	
  Title:

  	
  Co-President

  
	
   

  	
   

  	
   

  
	
   

  	
  Churchill
  Pacific Asset Management LLC

  



 

















 


	
   

  	
  SAN
  GABRIEL CLO I,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John M. Casparian

  
	
   

  	
  Name:

  	
  John
  M. Casparian

  
	
   

  	
  Title:

  	
  Co-President

  
	
   

  	
   

  	
   

  
	
   

  	
  Churchill
  Pacific Asset Management LLC

  



 

















 


	
   

  	
  OLYMPIC
  CLO I,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John M. Casparian

  
	
   

  	
  Name:

  	
  John
  M. Casparian

  
	
   

  	
  Title:

  	
  Co-President

  
	
   

  	
   

  	
   

  
	
   

  	
  Churchill
  Pacific Asset Management LLC

  



 

















 


	
   

  	
  KINGSLAND
  I, LTD.,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Kingsland
  Capital Management, LLC as Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Vincent Siino

  
	
   

  	
   

  	
  Name:

  	
  Vincent
  Siino

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Officer

  



 


Amendment
No. 2


 

















 


	
   

  	
  KINGSLAND
  II, LTD.,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Kingsland
  Capital Management, LLC as Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Vincent Siino

  
	
   

  	
   

  	
  Name:

  	
  Vincent
  Siino

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Officer

  



 


Amendment
No. 2


 

















 


	
   

  	
  KINGSLAND
  IV, LTD.,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Kingsland
  Capital Management, LLC as Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Vincent Siino

  
	
   

  	
   

  	
  Name:

  	
  Vincent
  Siino

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Officer

  



 


Amendment
No. 2


 

















 


	
   

  	
  KINGSLAND
  V, LTD.,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Kingsland
  Capital Management, LLC as Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Vincent Siino

  
	
   

  	
   

  	
  Name:

  	
  Vincent
  Siino

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Officer

  



 


Amendment
No. 2


 

















 


	
   

  	
  Sands
  Point Funding Ltd.,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Guggenheim
  Investment Management, LLC as Collateral Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Kaitlin Trinh

  
	
   

  	
   

  	
  Name:

  	
  KAITLIN
  TRINH

  
	
   

  	
   

  	
  Title:

  	
  DIRECTOR

  



 


Amendment
No. 2


 














 


	
   

  	
  Green
  Lane CLO Ltd.,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Guggenheim
  Investment Management, LLC as Collateral Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Kaitlin Trinh

  
	
   

  	
   

  	
  Name:

  	
  KAITLIN
  TRINH

  
	
   

  	
   

  	
  Title:

  	
  DIRECTOR

  



 


Amendment
No. 2


 

















 


	
   

  	
  Kennecott
  Funding Ltd..,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Guggenheim
  Investment Management, LLC as Collateral Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Kaitlin Trinh

  
	
   

  	
   

  	
  Name:

  	
  KAITLIN
  TRINH

  
	
   

  	
   

  	
  Title:

  	
  DIRECTOR

  



 


Amendment
No. 2


 

















 


	
   

  	
  1888
  Fund, Ltd.,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Guggenheim
  Investment Management, LLC as Collateral Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Kaitlin Trinh

  
	
   

  	
   

  	
  Name:

  	
  KAITLIN
  TRINH

  
	
   

  	
   

  	
  Title:

  	
  DIRECTOR

  



 


Amendment
No. 2


 

















 


	
   

  	
  Copper
  River CLO Ltd.,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Guggenheim
  Investment Management, LLC as Collateral Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Kaitlin Trinh

  
	
   

  	
   

  	
  Name:

  	
  KAITLIN
  TRINH

  
	
   

  	
   

  	
  Title:

  	
  DIRECTOR

  



 


Amendment
No. 2


 

















 


	
   

  	
  MARLBOROUGH
  STREET CLO, LTD.,

  
	
   

  	
  By
  its Collateral Manager, Massachusetts Financial Services Company, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  David Cobey

  
	
   

  	
   

  	
  Name:

  	
  David
  Cobey

  
	
   

  	
   

  	
  Title:

  	
  As
  authorized representative and not individually

  



 


Amendment
No. 2


 

















 


	
   

  	
  Morgan
  Stanley Investment

  
	
   

  	
  Management
  Croton, Ltd.

  
	
   

  	
  By:

  	
  Morgan
  Stanley Investment Management Inc. as  Collateral
  Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Robert Drobny

  
	
   

  	
   

  	
  Name:

  	
  ROBERT
  DROBNY

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Diretor

  



 


Amendment
No. 2


 

















 


ARES
IIIR/IVR CLO LTD., as a Lender


ARES
VII CLO LTD., as a Lender


ARES
VIII CLO LTD., as a Lender


ARES
XI CLO LTD., as a Lender


 


 


	
  ARES
  IIIR/IVR CLO LTD.

  
	
  BY: ARES CLO MANAGEMENT IIIR/IVR, L.P., ITS ASSET
  MANAGER

  
	
   

  
	
   

  	
  BY: ARES CLO GP IIIR/IVR, LLC, ITS GENERAL PARTNER

  
	
   

  	
  BY: ARES MANAGEMENT LLC, ITS MANAGER

  
			



 


 


	
  By:

  	
  /s/ Seth Brufsky

  	
   

  
	
  Name:
  

  	
  Seth
  Brufsky

  	
   

  
	
  Title:
  

  	
  Vice
  President

  	
   

  



 


ARES
VII CLO LTD.


 


	
  BY: ARES CLO MANAGEMENT VII, L.P., ITS INVESTMENT
  MANAGER

  
	
   

  
	
   

  	
  BY: ARES CLO GP VII, LLC, ITS GENERAL PARTNER

  
	
   

  
	
   

  	
  BY: ARES MANAGEMENT LLC, ITS MANAGER

  
			



 


 


	
  By:

  	
  /s/ Seth Brufsky

  	
   

  
	
  Name:
  

  	
  Seth
  Brufsky

  	
   

  
	
  Title:
  

  	
  Vice
  President

  	
   

  



 


Amendment
No. 2


 

















 


ARES
VIII CLO LTD.


 


	
  BY: ARES CLO MANAGEMENT VIII, L.P., ITS INVESTMENT
  MANAGER

  
	
   

  
	
   

  	
  BY: ARES CLO GP VIII, LLC, ITS GENERAL PARTNER

  
	
   

  
	
   

  	
  BY: ARES MANAGEMENT LLC, ITS MANAGER

  
			



 


 


	
  By:

  	
  /s/ Seth Brufsky

  	
   

  
	
  Name:
  

  	
  Seth
  Brufsky

  	
   

  
	
  Title:
  

  	
  Vice
  President

  	
   

  



 


 


ARES
XI CLO LTD.


 


	
  By: ARES CLO MANAGEMENT XI, L.P., ITS ASSET
  MANAGER

  
	
   

  
	
   

  	
  By: ARES CLO GP XI, LLC, ITS GENERAL PARTNER

  
	
   

  
	
   

  	
  By: ARES MANAGEMENT LLC, ITS MANAGER

  
			



 


 


	
  By:

  	
  /s/ Seth Brufsky

  	
   

  
	
  Name:
  

  	
  Seth
  Brufsky

  	
   

  
	
  Title:
  

  	
  Vice
  President

  	
   

  



 


Amendment
No. 2


 

















 


	
   

  	
  Apidos
  CINCO CDO

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
  By
  its Investment Advisor Apidos Capital Management, LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Gretchen Bergstresser

  
	
   

  	
   

  	
  Name:

  	
  Gretchen
  Bergstresser

  
	
   

  	
   

  	
  Title:

  	
  Sr.
  Portfolio Manager

  



 


Amendment
No. 2


 

















 


	
   

  	
  Avery
  Point CLO, Limited

  
	
   

  	
  By:

  	
  Sankaty
  Advisors LLC,

  
	
   

  	
  as
  Collateral Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Andrew S. Viens

  
	
   

  	
   

  	
  Name:

  	
  Andrew
  S. Viens

  
	
   

  	
   

  	
  Title:

  	
  Sr.
  Vice President of Operations

  



 


Amendment
No. 2


 














 


	
   

  	
  Castle
  Hill II-Ingots, Ltd

  
	
   

  	
  By:

  	
  Sankaty
  Advisors LLC,

  
	
   

  	
  as
  Collateral Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Andrew S. Viens

  
	
   

  	
   

  	
  Name:

  	
  Andrew
  S. Viens

  
	
   

  	
   

  	
  Title:

  	
  Sr.
  Vice President of Operations

  



 


Amendment
No. 2


 

















 


	
   

  	
  Race
  Point II CLO, Limited

  
	
   

  	
  By:

  	
  Sankaty
  Advisors LLC,

  
	
   

  	
  as
  Collateral Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Andrew S. Viens

  
	
   

  	
   

  	
  Name:

  	
  Andrew
  S. Viens

  
	
   

  	
   

  	
  Title:

  	
  Sr.
  Vice President of Operations

  



 


Amendment
No. 2


 

















 


	
   

  	
  Race
  Point IV CLO, Ltd

  
	
   

  	
  By:

  	
  Sankaty
  Advisors LLC,

  
	
   

  	
  as
  Collateral Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Andrew S. Viens

  
	
   

  	
   

  	
  Name:

  	
  Andrew
  S. Viens

  
	
   

  	
   

  	
  Title:

  	
  Sr.
  Vice President of Operations

  



 


Amendment
No. 2


 

















 


	
   

  	
  SSS
  Funding II, LLC

  
	
   

  	
  By:

  	
  Sankaty
  Advisors LLC,

  
	
   

  	
  as
  Collateral Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Andrew S. Viens

  
	
   

  	
   

  	
  Name:

  	
  Andrew
  S. Viens

  
	
   

  	
   

  	
  Title:

  	
  Sr.
  Vice President of Operations

  



 


Amendment
No. 2


 

















 


	
   

  	
  [The
  Prudential Insurance Company of America],

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Stephen J. Collins

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Stephen
  J. Collins

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Prudential
  Investment Management, Inc., as investment advisor

  



 


Amendment
No. 2


 

















 


ACKNOWLEDGED:


 


 


	
   

  	
  CREDIT
  SUISSE AG, CAYMAN ISLANDS BRANCH, as the Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ William O’Daly

  
	
   

  	
  Name: William O’Daly

  
	
   

  	
  Title: Director

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ilya Ivashkov

  
	
   

  	
  Name: Ilya Ivashkov

  
	
   

  	
  Title:  Associate

  
				



 


Amendment
No. 2


 














 


Exhibit A


 


Amended Credit Agreement


 


See attached.


 


Amendment No. 2


 














 


EXHIBIT A to Amendment No. 2


 


COMPOSITE CREDIT AGREEMENT


(as amended by Amendment No. 1, dated as of December 19,
2008


and Amendment No. 2, dated as of April 16,
2010)


 


 


CREDIT AND GUARANTY
AGREEMENT


 


dated as of May 21,
2007


 


among


 


DOUGLAS DYNAMICS, L.L.C.


 


as Borrower


 


DOUGLAS DYNAMICS, INC.,


DOUGLAS DYNAMICS FINANCE
COMPANY,

FISHER, LLC


 


as Guarantors,


 


THE BANKS AND FINANCIAL
INSTITUTIONS LISTED HEREIN,

as  Lenders,


 


CREDIT SUISSE SECURITIES
(USA) LLC,

as Sole Bookrunner and Sole Lead Arranger,


 


CREDIT SUISSE AG, CAYMAN
ISLANDS BRANCH,

as Collateral Agent, Administrative Agent,

Syndication Agent and Documentation Agent


 






 


Senior Secured Term Loan
Facility


 






 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 1.

  	
  DEFINITIONS AND
  INTERPRETATION

  	
  1

  
	
  1.1

  	
  Definitions

  	
  1

  
	
  1.2

  	
  Accounting Terms

  	
  33

  
	
  1.3

  	
  Interpretation, etc.

  	
  33

  
	
  SECTION 2.

  	
  LOANS

  	
  33

  
	
  2.1

  	
  Term Loans

  	
  33

  
	
  2.2

  	
  [RESERVED]

  	
  34

  
	
  2.3

  	
  [RESERVED]

  	
  34

  
	
  2.4

  	
  Pro Rata Shares; Availability of Funds

  	
  34

  
	
  2.5

  	
  Use of Proceeds

  	
  35

  
	
  2.6

  	
  Evidence of Debt; Register; Lenders’ Books and
  Records; Notes

  	
  35

  
	
  2.7

  	
  Interest on Loans

  	
  36

  
	
  2.8

  	
  Conversion/Continuation

  	
  37

  
	
  2.9

  	
  Default Interest

  	
  38

  
	
  2.10

  	
  Fees

  	
  38

  
	
  2.11

  	
  Scheduled Term Loan Payments

  	
  38

  
	
  2.12

  	
  Voluntary Prepayments

  	
  39

  
	
  2.13

  	
  Mandatory Prepayments

  	
  40

  
	
  2.14

  	
  Application of Prepayments/Reductions

  	
  41

  
	
  2.15

  	
  General Provisions Regarding Payments

  	
  42

  
	
  2.16

  	
  Ratable Sharing

  	
  44

  
	
  2.17

  	
  Making or Maintaining Eurodollar Rate Loans

  	
  44

  
	
  2.18

  	
  Increased Costs; Capital Adequacy

  	
  46

  
	
  2.19

  	
  Taxes; Withholding, etc.

  	
  47

  
	
  2.20

  	
  Obligation to Mitigate

  	
  49

  
	
  2.21

  	
  Call Protection

  	
  50

  
	
  2.22

  	
  Removal or Replacement of a Lender

  	
  50

  
	
  SECTION 3.

  	
  CONDITIONS PRECEDENT

  	
  51

  
	
  3.1

  	
  Closing Date

  	
  51

  
	
  3.2

  	
  Notices

  	
  54

  
	
  SECTION 4.

  	
  REPRESENTATIONS AND
  WARRANTIES

  	
  54

  
	
  4.1

  	
  Organization; Requisite Power and Authority;
  Qualification

  	
  54

  
	
  4.2

  	
  Capital Stock and Ownership

  	
  55

  
	
  4.3

  	
  Due Authorization

  	
  55

  
	
  4.4

  	
  No Conflict

  	
  55

  
	
  4.5

  	
  Governmental Consents

  	
  55

  
	
  4.6

  	
  Binding Obligation

  	
  55

  
	
  4.7

  	
  Financial Condition

  	
  56

  
	
  4.8

  	
  Projections

  	
  56

  
	
  4.9

  	
  No Material Adverse Change

  	
  56

  
	
  4.10

  	
  No Restricted Payments

  	
  56

  
	
  4.11

  	
  Litigation; Adverse Facts

  	
  57

  
	
  4.12

  	
  Payment of Taxes

  	
  57

  



 


i

















 


	
  4.13

  	
  Properties

  	
  57

  
	
  4.14

  	
  Environmental Matters

  	
  58

  
	
  4.15

  	
  No Defaults

  	
  59

  
	
  4.16

  	
  Governmental Regulation

  	
  59

  
	
  4.17

  	
  Margin Regulations

  	
  59

  
	
  4.18

  	
  Employee Matters

  	
  59

  
	
  4.19

  	
  Employee Benefit Plans

  	
  60

  
	
  4.20

  	
  Certain Fees

  	
  60

  
	
  4.21

  	
  Solvency

  	
  61

  
	
  4.22

  	
  Collateral

  	
  61

  
	
  4.23

  	
  Disclosure

  	
  61

  
	
  4.24

  	
  Deposit Accounts

  	
  62

  
	
  SECTION 5.

  	
  AFFIRMATIVE COVENANTS

  	
  62

  
	
  5.1

  	
  Financial Statements and Other Reports

  	
  62

  
	
  5.2

  	
  Existence

  	
  65

  
	
  5.3

  	
  Payment of Taxes and Claims

  	
  66

  
	
  5.4

  	
  Maintenance of Properties

  	
  66

  
	
  5.5

  	
  Insurance

  	
  66

  
	
  5.6

  	
  Inspections

  	
  66

  
	
  5.7

  	
  Lenders Meetings

  	
  67

  
	
  5.8

  	
  Compliance with Laws

  	
  67

  
	
  5.9

  	
  Environmental

  	
  67

  
	
  5.10

  	
  Subsidiaries

  	
  68

  
	
  5.11

  	
  Additional Real Estate Assets

  	
  69

  
	
  5.12

  	
  [Reserved]

  	
  70

  
	
  5.13

  	
  Further Assurances

  	
  70

  
	
  5.14

  	
  ERISA

  	
  70

  
	
  5.15

  	
  Maintenance of Credit Rating

  	
  70

  
	
  SECTION 6.

  	
  NEGATIVE COVENANTS

  	
  70

  
	
  6.1

  	
  Indebtedness

  	
  71

  
	
  6.2

  	
  Liens

  	
  73

  
	
  6.3

  	
  Sales and Leasebacks

  	
  75

  
	
  6.4

  	
  No Further Negative Pledges

  	
  76

  
	
  6.5

  	
  Restricted Payments

  	
  76

  
	
  6.6

  	
  Restrictions on Subsidiary Distributions

  	
  78

  
	
  6.7

  	
  Investments

  	
  78

  
	
  6.8

  	
  Calculations

  	
  80

  
	
  6.9

  	
  Fundamental Changes; Asset
  Dispositions; Acquisitions

  	
  81

  
	
  6.10

  	
  Disposal of Subsidiary Interests

  	
  82

  
	
  6.11

  	
  Fiscal Year

  	
  82

  
	
  6.12

  	
  Transactions with Shareholders and Affiliates

  	
  83

  
	
  6.13

  	
  Conduct of Business

  	
  83

  
	
  6.14

  	
  Permitted Activities of Holdings

  	
  83

  
	
  6.15

  	
  Amendments or Waivers of Certain Agreements

  	
  83

  
	
  6.16

  	
  Limitation on Payments Relating to Other Debt

  	
  84

  
	
  SECTION 7.

  	
  GUARANTY

  	
  85

  



 


ii

















 


	
  7.1

  	
  Guaranty of the Obligations

  	
  85

  
	
  7.2

  	
  Contribution by Guarantors

  	
  85

  
	
  7.3

  	
  Payment by Guarantors

  	
  86

  
	
  7.4

  	
  Liability of Guarantors Absolute

  	
  86

  
	
  7.5

  	
  Waivers by Guarantors

  	
  88

  
	
  7.6

  	
  Guarantors’ Rights of Subrogation, Contribution,
  etc.

  	
  89

  
	
  7.7

  	
  Subordination of Other Obligations

  	
  90

  
	
  7.8

  	
  Continuing Guaranty

  	
  90

  
	
  7.9

  	
  Authority of Guarantors or Company

  	
  90

  
	
  7.10

  	
  Financial Condition of Company

  	
  90

  
	
  7.11

  	
  Bankruptcy, etc.

  	
  90

  
	
  7.12

  	
  Discharge of Guaranty Upon Sale of Guarantor

  	
  91

  
	
  SECTION 8.

  	
  EVENTS OF DEFAULT

  	
  91

  
	
  8.1

  	
  Events of Default

  	
  91

  
	
  SECTION 9.

  	
  AGENTS

  	
  94

  
	
  9.1

  	
  Appointment of Agents

  	
  94

  
	
  9.2

  	
  Powers and Duties

  	
  95

  
	
  9.3

  	
  General Immunity

  	
  95

  
	
  9.4

  	
  Agents Entitled to Act as Lender

  	
  96

  
	
  9.5

  	
  Lenders’ Representations, Warranties and
  Acknowledgment

  	
  96

  
	
  9.6

  	
  Right to Indemnity

  	
  97

  
	
  9.7

  	
  Successor Administrative Agent

  	
  97

  
	
  9.8

  	
  Collateral Documents and Guaranty

  	
  98

  
	
  SECTION 10.

  	
  MISCELLANEOUS

  	
  98

  
	
  10.1

  	
  Notices

  	
  98

  
	
  10.2

  	
  Expenses

  	
  101

  
	
  10.3

  	
  Indemnity

  	
  101

  
	
  10.4

  	
  Set-Off

  	
  102

  
	
  10.5

  	
  Amendments and Waivers

  	
  103

  
	
  10.6

  	
  Successors and Assigns; Participations

  	
  104

  
	
  10.7

  	
  Independence of Covenants

  	
  109

  
	
  10.8

  	
  Survival of Representations, Warranties and
  Agreements

  	
  109

  
	
  10.9

  	
  No Waiver; Remedies Cumulative

  	
  109

  
	
  10.10

  	
  Marshalling; Payments Set Aside

  	
  109

  
	
  10.11

  	
  Severability

  	
  110

  
	
  10.12

  	
  Obligations Several; Independent Nature of
  Lenders’ Rights

  	
  110

  
	
  10.13

  	
  Headings

  	
  110

  
	
  10.14

  	
  APPLICABLE LAW

  	
  110

  
	
  10.15

  	
  CONSENT TO JURISDICTION

  	
  110

  
	
  10.16

  	
  WAIVER OF JURY TRIAL

  	
  111

  
	
  10.17

  	
  Confidentiality

  	
  111

  
	
  10.18

  	
  Usury Savings Clause

  	
  112

  
	
  10.19

  	
  Counterparts

  	
  113

  
	
  10.20

  	
  Effectiveness

  	
  113

  



 


iii

















 


	
  APPENDICES:

  	
  A

  	
  [Reserved]

  
	
   

  	
  B

  	
  Notice Addresses

  
	
   

  	
   

  	
   

  
	
  SCHEDULES:

  	
  4.1

  	
  Organization and
  Capital Structure

  
	
   

  	
  4.2

  	
  Capital Stock and
  Ownership

  
	
   

  	
  4.9

  	
  Absence of Certain
  Changes

  
	
   

  	
  4.11

  	
  Litigation

  
	
   

  	
  4.13

  	
  Real Estate Assets

  
	
   

  	
  4.14

  	
  Environmental

  
	
   

  	
  4.18

  	
  Employee Matters

  
	
   

  	
  4.19

  	
  Employee Benefit Plans

  
	
   

  	
  4.22

  	
  Certain Existing Liens

  
	
   

  	
  4.24

  	
  Deposit Accounts

  
	
   

  	
  6.1

  	
  Certain Indebtedness

  
	
   

  	
  6.2

  	
  Certain Liens

  
	
   

  	
  6.7

  	
  Certain Investments

  
	
   

  	
  6.12

  	
  Certain Affiliate
  Transactions

  
	
   

  	
   

  	
   

  
	
  EXHIBITS:

  	
  A-1

  	
  Funding Notice

  
	
   

  	
  A-2

  	
  Conversion/Continuation
  Notice

  
	
   

  	
  B

  	
  Term Loan Note

  
	
   

  	
  C

  	
  Compliance Certificate

  
	
   

  	
  D

  	
  Opinion of Counsel for
  Credit Parties

  
	
   

  	
  E

  	
  Assignment Agreement

  
	
   

  	
  F

  	
  Certificate Re Non-bank
  Status

  
	
   

  	
  G

  	
  Solvency Certificate

  
	
   

  	
  H

  	
  Counterpart Agreement

  
	
   

  	
  I

  	
  Pledge and Security
  Agreement

  
	
   

  	
  J

  	
  Mortgage

  
	
   

  	
  K

  	
  Restricted Payment
  Certificate

  
	
   

  	
  L

  	
  Intercreditor Agreement

  
	
   

  	
  M

  	
  Fixed Charge Coverage Compliance Certificate

  



 


iv






 










 


CREDIT AND GUARANTY
AGREEMENT


 


CREDIT AND GUARANTY AGREEMENT, dated as of May 21, 2007 (the
“Agreement”), by and among Douglas
Dynamics, Inc., a Delaware corporation (“Holdings”), Douglas
Dynamics, L.L.C., a Delaware limited liability company and a direct
wholly-owned Subsidiary of Holdings (the “Company” or the
“Borrower”),
Fisher, LLC, a Delaware limited liability company (“Fisher”)
and Douglas Dynamics Finance Company, a Delaware corporation (“DD Finance,” and together with Fisher and Holdings, each a “Guarantor” and collectively the “Guarantors”)
the banks and financial institutions listed on the signature pages hereof
(together with their respective successors and assigns, each individually
referred to herein as a “Lender” and collectively as “Lenders”),
Credit Suisse AG, Cayman Islands Branch  (“Credit
Suisse”), as sole bookrunner and sole lead arranger (the “Arranger”),
Credit Suisse, as syndication agent (“Syndication Agent”),
Credit Suisse, as  documentation agent
(the “Documentation
Agent”), Credit Suisse as collateral agent for the Lenders
(in such capacity, the “Collateral Agent”) and Credit Suisse
as administrative agent for the Lenders (in such capacity, “Administrative
Agent”).


 


RECITALS:


 


WHEREAS, the Borrower has requested, and the
Lenders have agreed, to extend certain credit facilities to the Borrower on the
terms and conditions of this Agreement.


 


NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged by the parties
hereto, such parties hereby agree as follows:


 


SECTION 1.         DEFINITIONS AND INTERPRETATION


 


1.1          Definitions.  The following terms used herein, including in
the preamble, recitals, exhibits and schedules hereto, shall have the following
meanings:


 


“ABL Priority Collateral”  has the meaning assigned to that term in the Intercreditor
Agreement.


 


“Accepting Lenders”
has the meaning assigned to that term in Section 2.14(d).


 


“Additional Term Loan Commitment” means the commitment of a Lender to make or otherwise
fund any Additional Term Loan and “Additional Term Loan Commitments”  means such commitments of all
Lenders in the aggregate.  The amount of
each Lender’s Additional Term Loan Commitment, if any, is set forth in the
Second Amendment or in the applicable Assignment Agreement, subject to any
adjustment or reduction pursuant to the terms and conditions hereof.


 


“Additional Term Loan Lender”
means a
Lender that becomes a party hereto pursuant to the Term Loan Joinder Agreement.


 


“Additional Term Loan
Maturity Date” means May 21, 2016.


 


1

















 


“Additional Term Loans”
means the Term Loans made pursuant to the Second Amendment and the Term Loan
Joinder Agreement on the Second Amendment Effective Date.


 


“Administrative Agent” has the meaning assigned to that term in the preamble
hereto.


 


“Adjusted Eurodollar Rate” means, for any Interest Rate Determination Date with
respect to an Interest Period for a Eurodollar Rate Loan, the greater of (1) 2.00%
per annum and (2) the rate per annum obtained by dividing (i) (a) the
rate per annum determined by the Administrative Agent by reference to the
British Bankers’ Association Interest Settlement Rates for deposits (for
delivery on the first day of such period) with a term equivalent to such period
in Dollars, determined as of approximately 11:00 a.m. (London, England
time) on such Interest Rate Determination Date (as set forth by Bloomberg
Information Service or any successor thereto or any other service selected by
Administrative Agent which has been nominated by the British Bankers’
Association as an authorized information vendor for the purpose of displaying
such rates), or (b) in the event the rate referenced in the preceding
clause (a) is not available, the rate per annum equal to the offered
quotation rate to first class banks in the London interbank market by Credit
Suisse for deposits (for delivery on the first day of the relevant period) in
Dollars of amounts in same day funds comparable to the principal amount of the
applicable Loan of Administrative Agent, in its capacity as a Lender, for which
the Adjusted Eurodollar Rate is then being determined with maturities
comparable to such period as of approximately 11:00 a.m. (London, England
time) on such Interest Rate Determination Date, by (ii) an amount equal to
(a) one minus (b) the Applicable Reserve Requirement.


 


“Adverse Proceeding” means any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or
arbitration (whether or not purportedly on behalf of Holdings or any of its
Subsidiaries) at law or in equity, or before or by any Governmental Authority,
domestic or foreign (including any Environmental Claims), whether pending or,
to the knowledge of Holdings or any of its Subsidiaries, threatened against or
affecting Holdings or any of its Subsidiaries or any property of Holdings or
any of its Subsidiaries.


 


“Affected Lender” has the meaning assigned to that term in Section 2.17(b).


 


“Affected Loans” has the meaning assigned to that term in Section 2.17(b).


 


“Affiliate” means, as applied to any Person, any other Person directly or
indirectly controlling, controlled by, or under common control with, that
Person. For the purposes of this definition, “control” (including, with
correlative meanings, the terms “controlling,” “controlled by” and “under
common control with”), as applied to any Person, means the possession, directly
or indirectly, of the power (i) to vote 10% or more of the Securities
having ordinary voting power for the election of directors of such Person or (ii) to
direct or cause the direction of the management and policies of that Person,
whether through the ownership of voting securities or by contract or otherwise.


 


“Agent”
means each of Administrative Agent, Collateral Agent, Syndication Agent and
Documentation Agent.


 


2

















 


“Aggregate Amounts Due” has the meaning assigned to that term in Section 2.16.


 


“Aggregate Payments” has the meaning assigned to that term in Section 7.2.


 


“Agreement” has the meaning assigned to that term in the preamble hereto.


 


“Applicable Margin” means a percentage, per annum, equal to:


 




	
   

  	
   

  	
  Base Rate 

  Loans

  	
   

  	
  Eurodollar Rate

  Loans

  	
   

  
	
  Term
  Loans (other than Additional Term Loans)

  	
   

  	
  3.50

  	
  %

  	
  4.50

  	
  %

  
	
  Additional
  Term Loans

  	
   

  	
  4.00

  	
  %

  	
  5.00

  	
  %

  






 


“Applicable Reserve Requirement” means, at any time, for any Eurodollar Rate Loan, the
maximum rate, expressed as a decimal, at which reserves (including, without
limitation, any basic marginal, special, supplemental, emergency or other
reserves) are required to be maintained by any member bank of the Federal
Reserve System against “Eurocurrency liabilities” (as such term is defined in
Regulation D) under regulations issued from time to time by the Board of
Governors of the Federal Reserve System or any successor thereto.  Without limiting the effect of the foregoing,
the Applicable Reserve Requirement shall reflect any other reserves required to
be maintained by such member banks with respect to (i) any category of
liabilities which includes deposits by reference to which the applicable
Adjusted Eurodollar Rate is to be determined, or (ii) any category of
extensions of credit or other assets which include Eurodollar Rate Loans.  A Eurodollar Rate Loan shall be deemed to
constitute Eurocurrency liabilities and as such shall be deemed subject to
reserve requirements without benefits of credit for proration, exceptions or
offsets that may be available from time to time to the applicable Lender.  The rate of interest on Eurodollar Rate Loans
shall be adjusted automatically on and as of the effective date of any change
in the Applicable Reserve Requirement.


 


“Ares Group Investors” means  (i) the
Ares Corporate Opportunities Fund, L.P. (the “Ares Limited Partnership”),
(ii) ACOF Management, L.P., (iii) ACOF Operating Manager, L.P., (iv) Ares
Management, Inc., (v) Ares Management LLC, (vi) any limited
partners of any of the foregoing entities and (vii) partners, members,
managing directors, officers or employees of any of those entities referenced
in clauses (ii) through (v), provided that each Person set forth in
clauses (vi) and (vii) shall only constitute an Ares Group Investor
so long as it gives a proxy to, or otherwise agrees that it will vote in a
manner consistent with, the Ares Limited Partnership (except to the extent
otherwise required by ERISA or other applicable law) and the entity to which it
is required to give a proxy to or otherwise vote consistently with continues to
own Capital Stock in Parent.


 


“Arranger” has the meaning assigned to that term in the preamble hereto.


 


3

















 


“Asset Sale” means a sale, lease or sub-lease (as lessor or sublessor), sale and
leaseback, assignment, conveyance, transfer or other disposition to, or any
exchange of property with, any Person (other than the Borrower or any Guarantor
Subsidiary), in one transaction or a series of transactions, of all or any part
of Holdings’, Company’s, or any of its Subsidiaries’ businesses, assets or
properties of any kind, whether real, personal, or mixed and whether tangible
or intangible, whether now owned or hereafter acquired, including, without
limitation, the Capital Stock of any of Holdings’ Subsidiaries, other than (i) inventory
sold or leased in the ordinary course of business (excluding any such sales by
operations or divisions discontinued or to be discontinued), (ii) equipment
that is surplus,  obsolete,
worn-out, or no longer used or useful in the business of Holdings, Company or
any of its Subsidiaries, (iii) leasehold interests that are no longer used
or useful in the business of Holdings, Company or any of its Subsidiaries, (iv) dispositions,
by means of trade-in, of equipment used in the ordinary course of business, so
long as such equipment is replaced, substantially concurrently, by like-kind
equipment in an effort to upgrade the Facilities of Company and its
Subsidiaries, (v) Cash and Cash Equivalents used in a manner not
prohibited by the Credit Documents or the Revolving Credit Documents, and (vi) sales
of other assets for aggregate consideration of less than $1,000,000  with respect to any transaction or series
of related transactions and less than $3,000,000  in the aggregate during any calendar year (provided, that for
purposes of calculating the amounts set forth in this clause (vi), any
transactions or series of related transactions involving aggregate
consideration of $50,000 or less may be excluded).


 


“Assignment Agreement” means an Assignment and Assumption Agreement
substantially in the form of Exhibit E, with such amendments or
modifications as may be approved by Administrative Agent.


 


“Attributable Indebtedness” in respect of a sale and leaseback
transaction means, at the time of determination, the present value of the
obligation of the lessee for net rental payments during the remaining term of
the lease included in such sale and leaseback transaction including any period
for which such lease has been extended or may, at the option of the lessor, be
extended.  Such present value shall be
calculated using a discount rate equal to the rate of interest implicit in such
transaction, determined in accordance with GAAP.


 


“Aurora Group Investors” means (i) Aurora Equity Partners II L.P. and
Aurora Overseas Equity Partners II, L.P. (the “Limited Partnerships”),
(ii) Aurora Capital Partners II L.P. and Aurora Overseas Capital Partners
II, L.P. (the “General Partners”), (iii) Aurora
Advisors II LLC and Aurora Overseas Advisors, II, LDC (the “Ultimate
General Partners”), (iv) any limited partners of the
Limited Partnerships or any limited partners of the General Partners, provided
that such limited partner gives a proxy to, or otherwise agrees that it will
vote in a manner consistent with, the Limited Partnerships (except to the
extent otherwise required by ERISA or other applicable law) or the General
Partners, (v) any managing director or employee of Aurora Management
Partners LLC, provided that such managing director or employee gives a
proxy to, or otherwise agrees that he or she will vote in a manner consistent
with the Limited Partnerships (except to the extent otherwise required by ERISA
or other applicable law) or the General Partners, (vi) any member of the
Advisory Board of Aurora Management Partners LLC, provided that such
member gives a proxy to, or otherwise agrees that he or she will vote in a
manner consistent with, the Limited Partnerships (except to the extent
otherwise required by ERISA or other applicable law) or the General Partners, (vii) any
Affiliate of Aurora


 


4

















 


Management Partners LLC,
provided that such Affiliate gives a proxy to, or otherwise agrees that it will
vote in a manner consistent with, the Limited Partnerships or the General
Partners, and (viii) any investment fund or other entity controlled by or
under common control with, any one or more of the Ultimate General Partners or
Aurora Management Partners LLC or the principals that control any one or more
of the Ultimate General Partners or Aurora Management Partners LLC; provided
that each Person set forth in clauses (iv) through (viii) shall only
constitute an Aurora Group Investor so long as the entity to which it is
required to give a proxy to or otherwise vote consistently with continues to
own Capital Stock in Parent.


 


“Authorized Officer” means, as applied to any Person, any individual
holding the position of chairman of the board (if an officer), chief executive
officer, president or one of its vice presidents (or the equivalent thereof),
and such Person’s chief financial officer or treasurer.


 


“Bankruptcy Code” means Title 11 of the United States Code
entitled “Bankruptcy,” as now and hereafter in effect, or any successor
statute.


 


“Base Rate” means, for any day, a rate per annum equal to the greatest of (i) the
Prime Rate in effect on such day, (ii) the Federal Funds Effective Rate in
effect on such day plus 1⁄2 of 1%, and (iii) 3.00%.


 


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


 


“Blocked Account” means any Deposit Account subject to a
Blocked Account Agreement.


 


“Blocked Account Agreement” means an account control agreement on terms reasonably
satisfactory to the Collateral Agent.


 


“Beneficiary” means each Agent, Lender and Lender Counterparty.


 


“Borrower” has the meaning assigned to that term in the preamble hereto.


 


“Business Day” means (i) any day excluding Saturday, Sunday and
any day which is a legal holiday under the laws of the States of New York or
Wisconsin or is a day on which banking institutions located in either such
state are authorized or required by law or other governmental action to close
and (ii) with respect to all notices, determinations, fundings and
payments in connection with the Adjusted Eurodollar Rate or any Eurodollar Rate
Loans, the term “Business Day” shall mean any day
which is a Business Day described in clause (i) and which is also a day
for trading by and between banks in Dollar deposits in the London interbank
market.


 


“Capital Lease” means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is or should be accounted for as a capital lease on the
balance sheet of that Person.


 


5

















 


“Capital Stock” means any and all shares, interests, participations
or other equivalents  (however
designated) of capital stock of a corporation, any and all equivalent ownership
interests in a Person (other than a corporation), including, without
limitation, partnership interests and membership interests, and any and all
warrants, rights or options to purchase or other arrangements or rights to
acquire any of the foregoing.


 


“Cash”
means money, currency or a credit balance in any demand or deposit account.


 


“Cash Equivalents” means, as at any date of determination, (i) marketable
securities (a) issued or directly and unconditionally guaranteed as to
interest and principal by the United States Government or (b) issued by
any agency of the United States the obligations of which are backed by the full
faith and credit of the United States, in each case maturing within one year
after such date; (ii) marketable direct obligations issued by any state of
the United States of America or any political subdivision of any such state or
any public instrumentality thereof, in each case maturing within one year after
such date and having, at the time of the acquisition thereof, a rating of at
least A-1 from S&P or at least P-1 from Moody’s; (iii) commercial
paper maturing no more than one year from the date of creation thereof and
having, at the time of the acquisition thereof, a rating of at least A-1 from
S&P or at least P-1 from Moody’s; (iv) certificates of deposit, time
deposits or bankers’ acceptances maturing within one year after such date and
issued or accepted by any Lender or by any commercial bank organized under the
laws of the United States of America or any state thereof or the District of
Columbia that (a) is at least “adequately capitalized” (as defined in the
regulations of its primary Federal banking regulator) and (b) has Tier 1
capital (as defined in such regulations) of not less than $100,000,000; and (v) shares
of any money market mutual fund that (a) has substantially all of its
assets invested continuously in the types of investments referred to in clauses
(i) and (ii) above, (b) has net assets of not less than
$500,000,000, and (c) has the highest rating obtainable from either
S&P or Moody’s.


 


“Certificate re Non-Bank Status” means a certificate substantially in the form of Exhibit F.


 


“Change of Control” means, at any time, (i) any
Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the
Exchange Act) other than Sponsor beneficially owns, directly or indirectly,
more than 35%, on a fully diluted basis, of the outstanding Capital Stock (measured
only by voting power) of Holdings entitled (without regard to the occurrence of
any contingency) to vote for the election of members of the board of directors
(or similar governing body) of Holdings, unless Sponsor beneficially owns and
controls, on a fully diluted basis, more of the outstanding Capital Stock
(measured only by voting power) of Holdings entitled (without regard to the
occurrence of any contingency) to vote for the election of members of the board
of directors (or similar governing body) of Holdings than any other Person or “group”
(within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act); or (ii) Holdings
shall cease to beneficially own and control 100% on a fully diluted basis of
the economic and voting interests in the Capital Stock of Company.


 


“Change in Law”
has the meaning assigned to that term in Section 2.18(a).


 


6

















 


“Closing Date”  means May 21, 2007.


 


“Collateral” means, collectively, all of the real, personal and mixed property
(including Capital Stock) in which Liens are purported to be granted pursuant
to the Collateral Documents as security for the Obligations.


 


“Collateral Agent”  has the meaning assigned to that term in
the preamble hereto.


 


“Collateral Documents” means the Pledge and Security Agreement, the
Mortgages, the Blocked Account Agreements, the Intercreditor Agreement and all
other instruments, documents and agreements delivered by any Credit Party
pursuant to this Agreement or any of the other Credit Documents in order to
grant to Collateral Agent, for the benefit of Lenders, a Lien on any real,
personal or mixed property of that Credit Party as security for the Obligations
(or to perfect any Liens so granted).


 


“Commitment” means any Term Loan Commitment.


 


“Company” has the meaning assigned to that term in the preamble hereto.


 


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


 


“Consolidated Adjusted EBITDA” means, for any period, an amount determined for
Company and its Subsidiaries on a consolidated basis equal to the total of (a) Consolidated
Net Income, plus (b) the sum, without duplication, of each of the
following to the extent deducted in the calculation of Consolidated Net Income
for such period (i) Consolidated Interest Expense and non-Cash interest
expense, (ii) provisions for taxes based on income, (iii) total
depreciation expense, (iv) total amortization expense (including
amortization of goodwill, other intangibles, and financing fees and expenses), (v) non-cash
impairment charges, (vi) non-cash expenses resulting from the grant of
stock and stock options and other compensation to management personnel of
Company and its Subsidiaries pursuant to a written incentive plan or agreement,
(vii) other non-Cash items that are unusual or otherwise non-recurring
items, (viii) expenses or fees under the Management Services Agreement, as
in effect on December 16, 2004 including any payments made under the
Management Services Agreement and comprising all or any portion of the
Qualifying IPO Payment, (ix) any extraordinary losses and non-recurring
charges during any period (including severance, relocation costs, one-time
compensation charges and losses or charges associated with Interest Rate
Agreements), (x) restructuring charges or reserves (including costs
related to closure of Facilities), (xi) any transaction costs incurred in
connection with the issuance of Securities or any refinancing transaction, in
each case whether or not such transaction is consummated, (xii) any fees and
expensed related to any Permitted Acquisitions and (xiii) fees, expenses and
other transaction costs incurred by Company and its Subsidiaries during such
period in connection with the transactions contemplated by the First Amendment
to Revolving Credit Facility, the Second Amendment and the Qualifying IPO minus
(c) the sum, without duplication, of (i) non-Cash items increasing
Consolidated Net Income for such period that are unusual or otherwise
non-recurring items, (ii) cash payments made during such period reducing
reserves or liabilities for accruals made in prior periods but only to the
extent such reserves or accruals were 


 


7

















 


added back to “Consolidated
Adjusted EBITDA” in a prior period pursuant to clause (b)(vii) or (b)(viii) above,
and (iii) Restricted Payments made during such period to Holdings pursuant
to Section 6.5(c)(i) (other than any such Restricted Payments made to
Holdings pursuant to Section 6.5(c)(i) for the purpose of paying fees,
expenses and other transaction costs paid in cash during such period in
connection with the transactions contemplated by the First Amendment to
Revolving Credit Facility, the Second Amendment and the Qualifying IPO).


 


“Consolidated Capital Expenditures” means, for any period, the aggregate of all
expenditures of Company and its Subsidiaries during such period determined on a
consolidated basis that, in accordance with GAAP, are or should be included in “purchase
of property and equipment” or similar items reflected in the consolidated
statement of cash flows of Company and its Subsidiaries, but excluding
expenditures constituting the purchase price for Permitted Acquisitions and
amounts constituting Net Asset Sale Proceeds and Net Insurance/Condemnation
Proceeds which are reinvested in the business of Company and its Subsidiaries
in accordance with Section 2.13(a) or Section 2.13(b),
respectively, by Company and its Subsidiaries during such period.


 


“Consolidated
Coverage Ratio” on any date of determination (the “Transaction Date”) means the ratio, on a pro forma basis, of (a) the aggregate
amount of Consolidated Adjusted EBITDA for the Test Period to (b) the
aggregate Consolidated Fixed Charges during the Test Period; provided, that for purposes of such calculation:
(1) Permitted Acquisitions which occurred during the Test Period or
subsequent to the Test Period and on or prior to the Transaction Date shall be
assumed to have occurred on the first day of the Test Period, (2) transactions
giving rise to the need to calculate the Consolidated Coverage Ratio and the
application of the proceeds therefrom (except as otherwise provided in this
definition) shall be assumed to have occurred on the first day of the Test
Period, (3) the incurrence of any Indebtedness (including the issuance of
any Disqualified Capital Stock) during the Test Period or subsequent to the
Test Period and on or prior to the Transaction Date (and the application of the
proceeds therefrom to the extent used to refinance or retire other Indebtedness)
(other than ordinary working capital borrowings) shall be assumed to have
occurred on the first day of the Test Period, (4) the permanent repayment
of any Indebtedness (including the redemption of any Disqualified Capital
Stock) during the Test Period or subsequent to the Test Period and on or prior
to the Transaction Date (other than ordinary working capital borrowings) shall
be assumed to have occurred on the first day of the Test Period, (5) the
Consolidated Fixed Charges attributable to interest on any Indebtedness or
dividends on any Disqualified Capital Stock bearing a floating interest (or
dividend) rate shall be computed on a pro
forma basis as if the average rate in effect from the beginning of
the Test Period to the Transaction Date had been the applicable rate for the
entire period, unless Company or any of its Subsidiaries is a party to a Hedge
Agreement (which shall remain in effect for the 12-month period immediately
following the Transaction Date) that has the effect of fixing the interest rate
on the date of computation, in which case such rate (whether higher or lower)
shall be used, and (6) amounts attributable to operations or businesses
permanently discontinued or disposed of prior to the Transaction Date, shall be
excluded, except, in the case of a determination of Consolidated Fixed Charges,
only to the extent that the obligations giving rise to such Consolidated Fixed
Charges would no longer be obligations contributing to Consolidated Fixed
Charges subsequent to the Transaction Date.


 


8

















 


“Consolidated Current Assets” means, as at any date of determination,
the total assets of Company and its Subsidiaries on a consolidated basis that
may properly be classified as current assets in conformity with GAAP, excluding
Cash and Cash Equivalents.


 


“Consolidated Current Liabilities” means, as at any date of determination,
the total liabilities of Company and its Subsidiaries on a consolidated basis
that may properly be classified as current liabilities in conformity with GAAP,
excluding the current portion of long term debt.


 


“Consolidated Excess Cash Flow” means, for any period, an
amount (if positive) equal to: (i) the sum, without duplication, of the amounts
for such period of (a) Consolidated Adjusted EBITDA, plus (b) the
Consolidated Working Capital Adjustment, minus (ii) the sum,
without duplication, of the amounts for such period of (a) voluntary and
scheduled repayments of Consolidated Total Debt (excluding voluntary repayments
financed with Indebtedness), (b) cash Consolidated Capital Expenditures
(net of any proceeds of (y) any related financings with respect to such
expenditures and (z) to the extent not excluded in the calculation of
Consolidated Capital Expenditures, any sales of capital assets used to finance
such expenditures), (c) Consolidated Interest Expense paid in cash for
such period, (d) the portion of taxes based on income actually paid in
cash during such period by Company or any of its Subsidiaries whether for such
period or any other period, (e) Restricted Payments made under Sections
6.5(c)(ii)-(iv) during such period, (f) Restricted Payments or
Investments made under Section 6.5(d)(i), Section 6.5(f), Section 6.7(l) and
Section 6.7(m), as applicable, and which are for any Fiscal Year, declared
(in the case of dividends or distributions) or paid in cash from June 1 of
the applicable Fiscal Year to and including May 31 of the immediately
following Fiscal Year, (g) Restricted Payments made to Holdings pursuant
to Section 6.5(c)(i) for the purpose of paying fees, expenses and
other transaction costs paid in cash during such period in connection with the
transactions contemplated by the Second Amendment, the First Amendment to
Revolving Credit Facility and the Qualifying IPO and (h) fees, expenses
and other transaction costs paid in cash by Company and its Subsidiaries during
such period in connection with the transactions contemplated by the First
Amendment to Revolving Credit Facility, the Second Amendment and the Qualifying
IPO.  Consolidated Excess Cash Flow shall
not be reduced by the amount of any Permitted Loan Purchase.


 


“Consolidated Fixed Charges” means, for any period, the sum, without duplication,
of the amounts determined for Company and its Subsidiaries on a consolidated
basis equal to (i) Consolidated Interest Expense for such period, (ii) scheduled
payments for such period of principal on Consolidated Total Debt, (iii) Consolidated
Capital Expenditures for such period other than those financed with secured
Indebtedness permitted by Sections 6.1 and 6.2 or made or incurred pursuant to Section 6.8(b)(ii) of
the Revolving Credit Facility, (iv) the portion of taxes based on income
actually paid in cash during such period by Company or any of its Subsidiaries
whether for such period or any other period and (v) Restricted Payments
permitted under Section 6.5(c)(iii) and which are paid in cash during
such period.


 


“Consolidated Interest Expense” means, for any period, (i) total interest
expense (including that portion attributable to Capital Leases in accordance
with GAAP and capitalized interest) payable in cash of Company and its
Subsidiaries on a consolidated basis with respect to all outstanding
Indebtedness of Company and its Subsidiaries, including all commissions, 


 


9

















 


discounts and other fees
and charges owed with respect to letters of credit and net costs under Interest
Rate Agreements, but excluding, however, any amounts referred to in Section 2.10(d) payable
on or before the Closing Date and amounts with respect to the termination of
Interest Rate Agreements entered into within 90 days of the Closing Date, minus
(ii) the aggregate amount of interest income of Company and its
Subsidiaries during such period paid in cash.


 


“Consolidated Net Income” means, for any period, (i) the net income (or
loss) of Company and its Subsidiaries on a consolidated basis for such period
taken as a single accounting period determined in conformity with GAAP, minus
(ii) (a) the income (or loss) of any Person (other than a Subsidiary
of Company) in which any other Person (other than Company or any of its
Subsidiaries) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to Company or any of its
Subsidiaries by such Person during such period, (b) the income (or loss)
of any Person accrued prior to the date it becomes a Subsidiary of Company or
is merged into or consolidated with Company or any of its Subsidiaries or that
Person’s assets are acquired by Company or any of its Subsidiaries, (c) the
income of any Subsidiary of Company to the extent that the declaration or
payment of dividends or similar distributions by that Subsidiary of that income
is not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary, (d) any after-tax
gains or losses attributable to Asset Sales or returned surplus assets of any
Pension Plan, and (e) (to the extent not included in clauses (a) through
(d) above) any net extraordinary gains or net extraordinary losses.  Consolidated Net Income
shall not be increased as a result of any discount realized as a result of any
Permitted Loan Purchase.


 


“Consolidated Secured Debt” means, as at any date of determination,
the Consolidated Total Debt  of
Company and its Subsidiaries determined on a consolidated basis (and without
duplication) in accordance with GAAP that is secured by Liens on any of the
assets of the Company or any of its Subsidiaries.


 


“Consolidated Total Debt” means, as at any date of determination, the aggregate
stated balance sheet amount of all Indebtedness of Company and its Subsidiaries
determined on a consolidated basis in accordance with GAAP; provided,
that the amount of revolving Indebtedness to be included at the date of
determination shall be equal to the average of the balances of such revolving
Indebtedness as of the end of each of the prior four calendar quarters (except that
with respect to the first four calendar quarters after the Closing Date, the
amount of revolving Indebtedness to be included shall be based on the average
of the quarter end balances from the Closing Date through the date of
determination).


 


“Consolidated Working Capital” means, as at any date of determination,
the excess of Consolidated Current Assets over Consolidated Current
Liabilities.


 


“Consolidated Working Capital
Adjustment” means,
for any period on a consolidated basis, the amount (which may be a negative
number) by which Consolidated Working Capital as of the beginning of such
period exceeds (or is less than) Consolidated Working Capital as of the end of
such period.


 


10














 


“Contractual Obligation” means, as applied to any Person, any provision of any
indenture, mortgage, deed of trust, or other contract, undertaking, agreement
or other instrument to which that Person is a party or to which such Person or
any of its properties is subject.


 


“Contributing Guarantors”  has the meaning assigned to that term in Section 7.2.


 


“Conversion/Continuation Date” means the effective date of a continuation or
conversion, as the case may be, as set forth in the applicable
Conversion/Continuation Notice.


 


“Conversion/Continuation Notice” means a Conversion/Continuation Notice substantially
in the form of Exhibit A-2.


 


“Counterpart Agreement” means a Counterpart Agreement substantially in the
form of Exhibit H delivered by a Credit Party pursuant to Section 5.10.


 


“Credit Date” means the date of a Credit Extension.


 


“Credit Document” means any of this Agreement, the Notes, if any, the
Collateral Documents, and all other documents, instruments or agreements
executed and delivered by a Credit Party for the benefit of any Agent or any
Lender in connection herewith.


 


“Credit Extension” means the making of a Loan.


 


“Credit Party” means each Person (other than any Agent or any Lender
or any other representative thereof) from time to time party to a Credit
Document.


 


“Cumulative Interest Expense”  means the
aggregate amount (without duplication and determined in each case in accordance
with GAAP) of (A) interest expensed or capitalized, paid, accrued, or
scheduled to be paid or accrued (including, in accordance with the following
sentence, interest attributable to Capital Leases and Attributable
Indebtedness) of the Company and its Subsidiaries during such period, including
(I) amortization of debt issuance costs, original issue discount, debt
discounts or premium and other financing fees and expenses and non-cash
interest payments or accruals on any Indebtedness, (II) the interest
portion of all deferred payment obligations of the Company and its
Subsidiaries, and (III) all commissions, discounts and other fees and
charges owed by the Company and its Subsidiaries with respect to bankers’
acceptances and letters of credit financings and Hedge Agreements, in each case
to the extent attributable to such period, and (B) the amount of all cash
dividends paid by the Company or any of its Subsidiaries in respect of
preferred stock (other than by Subsidiaries of the Company to the Company or
its wholly owned Subsidiaries).


 


“Currency Agreement” means any foreign exchange contract, currency swap
agreement, futures contract, option contract, synthetic cap or other similar
agreement or arrangement, each of which is for the purpose of hedging the
foreign currency risk associated with Holdings’ and its Subsidiaries’
operations and not for speculative purposes.


 


“DD Finance”  has the meaning assigned to that term in
the preamble.


 


11

















 


“Declining Lender” has the meaning assigned to that term in Section 2.14(d).


 


“Default” means a condition or event that, after notice or lapse of time or
both, would constitute an Event of Default.


 


“Deposit Account”
means each checking or other demand deposit account maintained by any of the
Credit Parties other than any Excluded Deposit Accounts.  All funds in each Deposit Account shall be conclusively
presumed to be Collateral and proceeds of Collateral and the Agents and the
Lenders shall have no duty to inquire as to the source of the amounts on
deposit in any Deposit Account.


 


“Disqualified Capital Stock” means with respect to any Person, (a) Capital
Stock of such Person that, by its terms or by the terms of any security into
which it is convertible, exercisable or exchangeable, is, or upon the happening
of an event or the passage of time or both would be, required to be redeemed or
repurchased including at the option of the holder thereof by such Person or any
of its Subsidiaries, in whole or in part, on or prior to 91 days following the
Additional Term Loan Maturity Date and (b) any Capital Stock of any
Subsidiary of such Person other than any common equity with no preferences,
privileges, and no redemption or repayment provisions.  Notwithstanding the foregoing, any Capital
Stock of the Company that would constitute Disqualified Capital Stock solely
because the holders thereof have the right to require the Company to repurchase
such Capital Stock upon the occurrence of a change of control or an asset sale
shall not constitute Disqualified Capital Stock if the terms of such Capital
Stock provide that the Company may not repurchase or redeem any such Capital
Stock pursuant to such provisions prior to the prepayment of the Loans as are
required by this Agreement.


 


“Documentation Agent” has the meaning assigned to that term in the preamble
hereto.


 


“Dollars” and the sign “$” mean the lawful money of the
United States of America.


 


“Domestic Subsidiary” means any Subsidiary organized under the laws of the
United States of America, any State thereof or the District of Columbia.


 


“Eligible Assignee” means (i) any Lender, any Affiliate of any
Lender and any Related Fund (any two or more Related Funds being treated as a
single Eligible Assignee for all purposes hereof), and Sponsor and any fund or
account affiliated with Sponsor (provided that, none of the Ares Limited
Partnership, the Limited Partnerships, and to the extent holding any Capital
Stock in Holdings, any other Ares Group Investor or Aurora Group Investor,
shall be deemed to be a “Lender” for purposes of voting on any matters
(including the granting of any consents or waivers) with respect to any of the
Credit Documents) and (ii) any commercial bank, insurance company,
investment or mutual fund or other entity that is an “accredited investor” (as
defined in Regulation D under the Securities Act) and which extends credit
or buys loans as one of its businesses; provided, no Affiliate of Holdings
(other than any existing Lender, Affiliate of such Lender, Sponsor or any fund
or account affiliated with Sponsor) shall be an Eligible Assignee.  Notwithstanding anything to the contrary in
the foregoing, the Borrower shall be an Eligible Assignee when Loans are
assigned pursuant to a Permitted Loan Purchase.


 


12

















 


“Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of
ERISA which is or was sponsored, maintained or contributed to by, or required
to be contributed by, Holdings, any of its Subsidiaries or any of their
respective ERISA Affiliates.


 


“Environmental Claim” means any investigation, written notice, written
notice of violation, written claim, action, suit, proceeding, demand, abatement
order or other written order or written directive (conditional or otherwise),
by any Governmental Authority or any other Person, arising (i) pursuant to
or in connection with any actual or alleged violation of any Environmental Law;
(ii) in connection with any Hazardous Material or any actual or alleged
Hazardous Materials Activity; or (iii) in connection with any actual or
alleged damage, injury, threat or harm to health, safety, natural resources or
the environment.


 


“Environmental Laws” means any and all current or future foreign or
domestic, federal or state (or any subdivision of either of them), statutes,
ordinances, orders, rules, regulations, judgments, Governmental Authorizations,
or any other requirements of Governmental Authorities relating to (i) environmental
matters, including those relating to any Hazardous Materials Activity; (ii) the
generation, use, storage, transportation or disposal of Hazardous Materials; or
(iii) occupational safety and health, land use or the protection of the
environment, in any manner applicable to Holdings or any of its Subsidiaries or
any Facility.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time
to time, and any successor thereto.


 


“ERISA Affiliate” means, as applied to any Person on or after the date
of the closing of the transactions contemplated by the Purchase Agreement, (i) any
corporation which is a member of a controlled group of corporations within the
meaning of Section 414(b) of the Internal Revenue Code of which that
Person is a member; (ii) any trade or business (whether or not
incorporated) which is a member of a group of trades or businesses under common
control within the meaning of Section 414(c) of the Internal Revenue
Code of which that Person is a member; and (iii) any member of an
affiliated service group within the meaning of Section 414(m) or (o) of
the Internal Revenue Code of which that Person, any corporation described in
clause (i) above or any trade or business described in clause (ii) above
is a member.


 


“ERISA Event” means (i) a “reportable event” within the meaning of Section 4043(c) of
ERISA and the regulations issued thereunder with respect to any Pension Plan
(excluding those for which the provision for 30-day notice to the PBGC has been
waived by regulation); (ii) the failure to meet the minimum funding
standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(d) of
the Internal Revenue Code) or the failure to make by its due date a required
installment under Section 412(m) of the Internal Revenue Code with
respect to any Pension Plan; (iii) the provision by the administrator of
any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice
of intent to terminate such plan in a distress termination described in Section 4041(c) of
ERISA; (iv) the withdrawal by Holdings, any of its Subsidiaries or any of
their respective ERISA Affiliates from any Pension Plan with two or more
contributing sponsors or the termination of any such Pension Plan resulting in
liability to Holdings, any of its Subsidiaries or any of their respective
Affiliates pursuant to Section 4063 or 4064 of ERISA; (v) the
institution by the PBGC of proceedings to terminate any Pension Plan; (vi) the
imposition, or the 


 


13

















 


occurrence of any events
or condition that could reasonably be expected to result in the imposition, of
liability on Holdings, any of its Subsidiaries or any of their respective ERISA
Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason
of the application of Section 4212(c) of ERISA; (vii) the
occurrence of an act or omission which could give rise to the imposition on
Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates
of fines, penalties, taxes or related charges under Chapter 43 of the Internal
Revenue Code or under Section 409, Section 502(c), (i) or (l),
or Section 4071 of ERISA in respect of any Employee Benefit Plan (which
fines, penalties, taxes or related charges, for purposes of Section 4.18,
shall be material); (viii) the assertion of a material claim (other than
routine claims for benefits) against any Employee Benefit Plan or the assets
thereof, or against Holdings, any of its Subsidiaries or any of their
respective ERISA Affiliates in connection with any Employee Benefit Plan; (ix) receipt
from the Internal Revenue Service of notice of the failure of any Pension Plan
(or any other Employee Benefit Plan intended to be qualified under Section 401(a) of
the Internal Revenue Code) to qualify under Section 401(a) of the
Internal Revenue Code, or the failure of any trust forming part of any Pension
Plan to qualify for exemption from taxation under Section 501(a) of
the Internal Revenue Code; or (x) the imposition of a Lien pursuant to Section 401(a)(29)
or 412(n) of the Internal Revenue Code or pursuant to ERISA with respect
to any Pension Plan.


 


“Eurodollar Rate Loan” means a Loan bearing interest at a rate determined by
reference to the Adjusted Eurodollar Rate.


 


“Event of Default” means each of the conditions or events set forth in Section 8.1.


 


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


 


“Excluded Deposit Accounts”
means, collectively, (a) Deposit Accounts established solely for the
purpose of funding payroll and trust accounts and funded solely with amounts
necessary to cover then outstanding payroll liabilities and amounts required to
be retained in such trust accounts, as well as minimum balance requirements; (b) Deposit
Accounts with amounts on deposit that, when aggregated with the amounts on
deposit in all other Deposit Accounts for which a Control Agreement has not
been obtained (other than those specified in clause (a) and (c)), do not
at any time exceed $4,000,000; (c) Deposit Accounts, with amounts on
deposit which in the aggregate that do not at any time exceed $1,000,000, held
at a financial institution that is not, for United Stated federal income tax
purposes (i) an individual who is a citizen or resident of the United
States or (ii) a corporation, partnership or other entity treated as a
corporation or partnership created or organized in or under the laws of the
United States, or any political subdivision thereof; (d) zero balance
disbursement accounts; and (e) Deposit Accounts, with amounts on deposit
which in the aggregate do not at any time exceed $500,000, the sole proceeds of
which are funds received by a Loan Party from credit card sales; provided that,
in each of the foregoing cases, if reasonably requested by the Collateral Agent
or the Administrative Agent, the Borrower shall provide such Agent with
periodic updates of the account numbers and names of all financial institutions
where such Deposit Accounts are maintained.


 


14

















 


“Existing Credit
Agreement” means the Amended and Restated Credit and Guaranty
Agreement dated as of December 16, 2004, by and among Holdings, the
Borrower, certain subsidiaries of the Borrower as guarantors and Credit Suisse
as administrative agent, as previously amended, restated, amended and restated,
supplemental or modified prior to the Closing Date.


 


“Facility” means any real property (including all buildings, fixtures or other
improvements located thereon) now, hereafter or heretofore owned, leased,
operated or used by Holdings or any of its Subsidiaries or any of their
respective predecessors or Affiliates.


 


“Fair Share” has the meaning assigned to that term in Section 7.2.


 


“Fair Share Contribution Amount” has the meaning assigned to that term in Section 7.2.


 


“Federal Funds Effective Rate” means for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided, (i) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (ii) if no such rate is so published on such
next succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate charged to Administrative Agent, in its capacity as a Lender, on
such day on such transactions as determined by Administrative Agent.


 


“Financial Plan” has the meaning assigned to
that term in Section 5.1(i).


 


“First Amendment” means Amendment No. 1 to this Agreement dated as of December 19,
2008.


 


“First Amendment to Revolving Credit Facility”  means Amendment No. 1 to Revolving Credit Facility,
dated as of April 16, 2010 among Holdings, the Company,
Fisher, DD Finance and the lenders party thereto.


 


“First Offer” has the meaning assigned to that term in Section 2.14(d).


 


“First Priority” means, with respect to any Lien purported to be
created in any Collateral pursuant to any Collateral Document, that such Lien
is the only Lien to which such Collateral is subject, other than any Permitted
Lien.


 


“Fiscal Quarter” means a fiscal quarter of any Fiscal Year.


 


“Fiscal Year” means the fiscal year of Holdings and its Subsidiaries ending on December 31
of each calendar year.


 


“Fisher” has the
meaning assigned to that term in the preamble.


 


15

















 


“Fixed Charge Coverage Compliance Certificate” means a Compliance Certificate
substantially in the form of Exhibit M.


 


“Fixed Charge Coverage Ratio” means the ratio of (a) the aggregate amount of
Consolidated Adjusted EBITDA for the Test Period to (b) the aggregate
Consolidated Fixed Charges during the Test Period.


 


“Flood Hazard Property” means any Real Estate Asset subject to a mortgage in
favor of Collateral Agent, for the benefit of the Lenders, and located in an
area designated by the Federal Emergency Management Agency as having special
flood or mud slide hazards.


 


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


 


“Funding Guarantors” has the meaning assigned to that term in Section 7.2.


 


“Funding Notice” means a notice substantially in the form of Exhibit A-1.


 


“GAAP”
means, subject to the limitations on the application thereof set forth in Section 1.2,
United States generally accepted accounting principles in effect as of the date
of determination thereof.


 


“Governmental Authority” means any federal, state, municipal, national or
other government, governmental department, commission, board, bureau, court,
agency or instrumentality or political subdivision thereof or any entity or
officer exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to any government or any court, in each
case whether associated with a state of the United States, the United States,
or a foreign entity or government.


 


“Governmental Authorization” means any permit, license, authorization, plan,
directive, consent order or consent decree of or from any Governmental
Authority.


 


“Grantor” has the meaning assigned to that term in the Pledge and Security
Agreement.


 


“Guaranteed Obligations”  has the meaning assigned to that term in Section 7.1.


 


“Guarantor” means each of (i) Holdings, and (ii) each Guarantor Subsidiary
from time to time party to this Agreement.


 


“Guarantor Subsidiary” means 
(i) Fisher, (ii)  DD Finance, (iii) each Domestic
Subsidiary of Holdings (other than Borrower), and (iv) to the extent no
adverse tax consequences to Company would result therefrom, each Foreign
Subsidiary of Holdings.


 


“Guaranty” means the guaranty of each Guarantor set forth in Section 7.


 


“Hazardous Materials” means any chemical, material, waste or substance,
exposure to which is prohibited, limited or regulated by any Governmental
Authority.


 


16

















 


“Hazardous Materials Activity” means any past, current or threatened activity, event
or occurrence involving any Hazardous Materials, including the use,
manufacture, possession, storage, presence, Release, threatened Release,
discharge, placement, generation, transportation, processing, treatment,
abatement, removal, remediation, disposal, disposition or handling of any
Hazardous Materials, and any corrective action or response action with respect
to any of the foregoing.


 


“Hedge Agreement” means an Interest Rate Agreement or a Currency
Agreement entered into with a Lender Counterparty.


 


“Highest Lawful Rate” means the maximum lawful interest rate, if any, that
at any time or from time to time may be contracted for, charged, or received
under the laws applicable to any Lender which are presently in effect or, to
the extent allowed by law, under such applicable laws which may hereafter be in
effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.


 


“Holdings” has the meaning assigned to that term in the preamble hereto.


 


“Holdings Equity Proceeds”
means the proceeds of any sale of Capital Stock (other than
Disqualified Capital Stock) of Holdings following the Second Amendment
Effective Date (and excluding any proceeds of the Qualifying IPO), in each case, only to the extent that (i) such
proceeds are held by Holdings in the form of cash or Cash Equivalents, (ii) such
proceeds are not contributed  by Holdings
to the Company or any Subsidiary and (iii) the Restricted Payment Amount
is not increased in respect of such proceeds.


 


“Increased-Cost Lenders” has the meaning assigned to that term in Section 2.22.


 


“Indebtedness” as applied to any Person, means, without duplication,
(i) all indebtedness for borrowed money; (ii) that portion of
obligations with respect to Capital Leases that is properly classified as a
liability on a balance sheet in conformity with GAAP; (iii) notes payable
and drafts accepted representing extensions of credit whether or not
representing obligations for borrowed money (excluding accounts payable which
are classified as current liabilities in accordance with GAAP and accrued
expenses in each case incurred in the ordinary course of business); (iv) any
obligation owed for all or any part of the deferred purchase price of property
or services (excluding any such obligations incurred under ERISA or with
respect to earn-outs incurred and paid when due in connection with Permitted
Acquisitions), which purchase price is due more than six months from the date
of incurrence of the obligation in respect thereof; (v) all indebtedness
secured by any Lien on any property or asset owned or held by that Person
regardless of whether the indebtedness secured thereby shall have been assumed
by that Person or is nonrecourse to the credit of that Person; (vi) the
face amount of any letter of credit issued for the account of that Person or as
to which that Person is otherwise liable for reimbursement of drawings; (vii) the
direct or indirect guaranty, endorsement (otherwise than for collection or
deposit in the ordinary course of business), co-making, discounting with
recourse or sale with recourse by such Person of the obligation of another; (viii) any
obligation of such Person the primary purpose or intent of which is to provide
assurance to an obligee that the obligation of the obligor thereof will be paid
or discharged, or any agreement relating thereto will be complied with, or the
holders thereof will be protected (in whole or in part) against loss 


 


17

















 


in respect thereof; (ix) any
liability of such Person for an obligation of another through any agreement
(contingent or otherwise) (a) to purchase, repurchase or otherwise acquire
such obligation or any security therefore, or to provide funds for the payment
or discharge of such obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise) or (b) to maintain the
solvency or any balance sheet item, level of income or financial condition of
another if, in the case of any agreement described under subclauses (a) or
(b) of this clause (ix), the primary purpose or intent thereof is as
described in clause (viii) above; (x) all net payment obligations of
such Person in respect of any exchange traded or over the counter derivative
transaction, including, without limitation, any Interest Rate Agreement and
Currency Agreement, whether entered into for hedging or speculative purposes;
(xi) the principal balance outstanding under any synthetic lease, tax retention
lease, off-balance sheet loan or similar off-balance sheet financing product;
and (xii) the indebtedness of any partnership or Joint Venture in which such
Person is a general partner or a joint venturer except to the extent that the
terms of such indebtedness provide that such indebtedness is nonrecourse to
such Person.


 


“Indemnified Liabilities” has the meaning assigned to that term in Section 10.3(a).


 


“Indemnitee” has the meaning assigned to that term in Section 10.3(a).


 


“Installment” has the meaning assigned to that term in Section 2.11.


 


“Intellectual Property”
means all patents, trademarks, service marks, tradenames, domain names, trade
secrets, copyrights, technology, know-how and processes used in or necessary
for the conduct of the business of Company and its Subsidiaries.


 


“Intercreditor Agreement” shall mean the Intercreditor Agreement in
the form of Exhibit L.


 


“Interest Payment Date” means with respect to (i) any Base Rate Loan,
the last Business Day in each of March, June, September and December of
each year through the final maturity date of such Loan; and (ii) any
Eurodollar Rate Loan, the last day of each Interest Period applicable to such
Loan; provided, in the case of each Interest Period of longer than three
months “Interest Payment Date” shall also include each date that is three
months, or an integral multiple thereof, after the commencement of such
Interest Period.


 


“Interest Period” means, in connection with a Eurodollar Rate Loan, an
interest period of one-, two-, three- or six-months, as selected by Borrower in
the applicable Funding Notice or Conversion/Continuation Notice, (i) initially,
commencing on the Credit Date or Conversion/Continuation Date thereof, as the
case may be; and (ii) thereafter, commencing on the day on which the
immediately preceding Interest Period expires; provided, (a) if an
Interest Period would otherwise expire on a day that is not a Business Day,
such Interest Period shall expire on the next succeeding Business Day unless no
further Business Day occurs in such month, in which case such Interest Period
shall expire on the immediately preceding Business Day; (b) any Interest
Period that begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall, subject to clause (c), of this
definition, end on the last Business Day of a 


 


18

















 


calendar month; (c) no
Interest Period with respect to any portion of any Term Loan (other than any
Additional Term Loan) shall extend beyond the Maturity Date and (d) no
Interest Period with respect to any portion of any Additional Term Loan shall
extend beyond the Additional Term Loan Maturity Date.


 


“Interest Rate Agreement” means any interest rate swap agreement, interest rate
cap agreement, interest rate collar agreement, interest rate hedging agreement
or other similar agreement or arrangement, each of which is for the purpose of
hedging the interest rate exposure associated with Holdings’ and its
Subsidiaries’ operations and not for speculative purposes.


 


“Interest Rate Determination Date” means, with respect to any Interest Period, the date
that is two (2) Business Days prior to the first day of such Interest
Period.


 


“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended
to the date hereof and from time to time hereafter, and any successor statute.


 


“Investment” means (i) any direct or indirect purchase or other acquisition by
Holdings or any of its Subsidiaries of, or of a beneficial interest in, any of
the Securities of any other Person (including any Subsidiary of Holdings); (ii) any
direct or indirect redemption, retirement, purchase or other acquisition for
value, by any Subsidiary of Holdings from any Person other than Company or any
Guarantor Subsidiary, of any Capital Stock of such Subsidiary; and (iii) any
direct or indirect loan, advance (other than advances to employees for moving,
entertainment and travel expenses, drawing accounts and similar expenditures in
the ordinary course of business) or capital contribution by Holdings or any of
its Subsidiaries to any other Person, including all indebtedness and accounts
receivable from that other Person that are not current assets or did not arise
from sales to that other Person in the ordinary course of business. The amount
of any Investment shall be the original cost of such Investment plus the cost
of all additions thereto minus the amount of any return of capital with respect
to such Investment, without any adjustments for increases or decreases in
value, or write-ups, write-downs or write-offs with respect to such Investment.


 


“Investment Conditions” means (i) the
Consolidated Coverage Ratio is not less than 2.0 to 1.0 and (ii) the
Leverage Ratio is not greater than 5.0 to 1.0.


 


“Joint Venture” means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form; provided,
in no event shall any corporate Subsidiary of any Person be considered to be a
Joint Venture to which such Person is a party.


 


“Lender”
has the meaning assigned to that term in the preamble hereto, and shall include
any other Person that becomes a party hereto pursuant to an Assignment
Agreement or the Term Loan Joinder Agreement.


 


“Lender Counterparty” means each
Lender or any Affiliate of a Lender counterparty to a Hedge Agreement
(including any Person who is a Lender (and any Affiliate thereof) as of the
Closing Date but subsequently, whether before or after entering into a Hedge
Agreement, ceases to be a Lender).


 


19

















 


“Leverage Ratio” means the ratio as of the date of determination of (i) Consolidated
Total Debt, less unrestricted Cash and Cash Equivalents of Company and its
Subsidiaries as of such day in excess of $1,000,000, the contents of which are
in a Blocked Account, to (ii) Consolidated Adjusted EBITDA for the Test
Period most recently ended.


 


“Lien”
means any lien, mortgage, pledge, assignment, security interest, charge or
encumbrance of any kind (including any agreement to give any of the foregoing,
any conditional sale or other title retention agreement, and any lease in the
nature thereof) and any option, trust or other preferential arrangement having
the practical effect of any of the foregoing.


 


“Loan”
means a Term Loan.


 


“Loan Purchase Limit” means (a) prior to the date that
the Borrower delivers to Administrative Agent a written certification of its
Net Cash Balance as of December 31, 2008 in form reasonably satisfactory
to Administrative Agent, $45,200,000, and (b) after such date, the sum of
the Net Cash Balance as of December 31, 2008 plus the aggregate principal
balance of all Loans purchased prior to such date pursuant to Permitted Loan
Purchases plus 50% of accrued Consolidated Excess Cash Flow for Fiscal Year
2009.


 


“Management Services Agreement” means the Amended and Restated Management Services
Agreement dated April 12, 2004 between Holdings and Sponsor, as it may be
amended, supplemented or otherwise modified from time to time.


 


“Margin Stock” has the meaning assigned to that term in
Regulation U of the Board of Governors of the Federal Reserve System as in
effect from time to time.


 


“Material Adverse Effect” means a material adverse effect upon (i) the
business, operations, properties, assets or condition (financial or otherwise)
of Holdings and its Subsidiaries taken as a whole; (ii) the ability of any
Credit Party to perform its Obligations; (iii) the legality, validity,
binding effect or enforceability against a Credit Party of a Credit Document to
which it is a party; or (iv) the rights, remedies and benefits available
to, or conferred upon, any Agent and any Lender or any Secured Party under any
Credit Document.


 


“Maturity Date”
means May 21, 2013.


 


“Maximum Restricted Payment
Amount” means, for any four Fiscal Quarter period, (1) $24,000,000,
if Consolidated Adjusted EBITDA is greater than or equal to $30,000,000 and
less than or equal to $40,000,000 for the Test Period, (2) $12,000,000, if
Consolidated Adjusted EBITDA is greater than or equal to $27,000,000 but less
than $30,000,000 for the Test Period, (3) $8,000,000, if Consolidated
Adjusted EBITDA is greater than or equal to $25,000,000 but less than
$27,000,000 for the Test Period, and (4) $0, if Consolidated Adjusted
EBITDA is less than $25,000,000 for the Test Period.


 


“Moody’s” means Moody’s Investor Services, Inc.


 


“Mortgage” means a Mortgage substantially in the form of Exhibit J, as it
may be amended, supplemented or otherwise modified from time to time.


 


20














 


“Multiemployer Plan” means any Employee Benefit Plan which is a “multiemployer
plan” as defined in Section 3(37) or Section 4001(a)(3) of
ERISA.


 


“Net Asset Sale Proceeds” means, with respect to any Asset Sale, an amount
equal to: (i) Cash payments (including any Cash received by way of
deferred payment pursuant to, or by monetization of, a note receivable or
otherwise, but only as and when so received) received by Holdings or any of its
Subsidiaries from such Asset Sale, minus (ii) any bona fide direct
costs incurred in connection with such Asset Sale, including, without
limitation, (a) income taxes estimated in good faith by the seller thereof
to be payable by the seller as a result of any gain recognized in connection
with such Asset Sale, (b) payment of the outstanding principal amount of,
premium or penalty, if any, and interest on any Indebtedness (other than the
Loans) that is secured by a Lien on the stock or assets in question and that is
required to be repaid under the terms thereof as a result of such Asset Sale, (c) brokerage
fees and legal expenses incurred directly attributable to such Asset Sale; and (d) any
reserves required to be established by the seller thereof in accordance with
GAAP against liabilities reasonably anticipated and directly attributable to
the Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under indemnification obligations associated with such
Asset Sale.


 


“Net Cash Balance” means, at any time, the (a) sum of all Cash and
Cash Equivalents held by Credit Parties minus (b) the sum of the aggregate
principal amount of loans outstanding under the Revolving Credit Facility plus
the aggregate maximum amount which may be drawn under all letters of credit
issued under the Revolving Credit Facility.


 


“Net Insurance/Condemnation Proceeds” means an amount equal to:  (i) any Cash payments or proceeds
received by Holdings or any of its Subsidiaries (a) under any casualty
insurance policy in respect of a covered loss thereunder or (b) as a
result of the taking of any assets of Holdings or any of its Subsidiaries by
any Person pursuant to the power of eminent domain, condemnation or otherwise,
or pursuant to a sale of any such assets to a purchaser with such power under
threat of such a taking, minus (ii) (a) any actual and
reasonable costs incurred by Holdings or any of its Subsidiaries in connection
with the adjustment or settlement of any claims of Holdings or such Subsidiary
in respect thereof, and (b) any bona fide direct costs incurred in
connection with any sale of such assets as referred to in clause (i)(b) of
this definition, including income taxes estimated in good faith by the seller
thereof to be payable as a result of any gain recognized in connection
therewith.


 


“Non-US Lender” has the meaning assigned to that term in Section 2.19(c).


 


“Note”
means a Term Loan Note.


 


“Notice”
means a Funding Notice or a Conversion/Continuation Notice.


 


“Obligations” means all obligations of every nature of each Credit Party from time
to time owed to the Agents (including former Agents), the Lenders or any of
them, or to any Lender Counterparties, under any Credit Document, whether for
principal, interest (including interest which, but for the filing of a petition
in bankruptcy with respect to such Credit Party, would have accrued on any
Obligation, whether or not a claim is allowed against such Credit 


 


21

















 


Party for such interest
in the related bankruptcy proceeding), payments for fees, expenses,
indemnification or otherwise.


 


“Obligee Guarantor” has the meaning assigned to that term in Section 7.7.


 


“Organizational Documents” means (i) with respect to any corporation, its
certificate or articles of incorporation or organization, as amended, and its
by-laws, as amended, (ii) with respect to any limited partnership, its
certificate of limited partnership, as amended, and its partnership agreement,
as amended, (iii) with respect to any general partnership, its partnership
agreement, as amended, and (iv) with respect to any limited liability
company, its articles of organization, as amended, and its operating agreement,
as amended.  In the event any term or
condition of this Agreement or any other Credit Document requires any
Organizational Document to be certified by a secretary of state or similar
governmental official, the reference to any such “Organizational Document”
shall only be to a document of a type customarily certified by such governmental
official.


 


“PBGC”
means the Pension Benefit Guaranty Corporation or any successor thereto.


 


“Pension Plan” means any Employee Benefit Plan which is subject to Section 412
of the Internal Revenue Code or Section 302 of ERISA.


 


“Perfection
Deliverables” means, with respect to any Credit Party, or any Person
that becomes a Credit Party pursuant to Section 5.10 and to the extent
required to be delivered under such Section:


 


(i)                                     evidence satisfactory to Collateral Agent of the compliance
by such Credit Party of its obligations under the Pledge and Security Agreement
and the other Collateral Documents (including, without limitation, its
obligations (A) to execute and deliver (x) UCC financing statements, (y) originals
of securities, instruments and chattel paper and (z) any agreements
governing deposit and/or securities accounts as provided therein, and (B) to
file intellectual property security agreements with the United States Patent
and Trademark Office and the United States Copyright Office);


 


(ii)          (A) to
the extent required to be delivered by the Collateral Agent, the results of
searches, by Persons satisfactory to Collateral Agent, of all effective UCC
financing statements (or equivalent filings), fixture filings and all judgment
and tax lien filings which may have been made with respect to any personal or
mixed property of such Credit Party, and of filings with the United States
Patent and Trademark Office and the United States Copyright Office, together
with copies of all such filings disclosed by such searches, and (B) UCC
termination statements (or similar documents), releases to be filed with the
United States Patent and Trademark Office and the 


 


22

















 


United States Copyright Office, and other filings duly
executed by all applicable Persons for filing in all applicable jurisdictions
and offices as may be necessary to terminate any effective UCC financing
statements (or equivalent filings) and other filings disclosed in such searches
(other than any such financing statements in respect of Permitted Liens);


 


(iii)       to the
extent required to be delivered by the Collateral Agent, opinions of counsel
(which counsel shall be reasonably satisfactory to Collateral Agent) with
respect to the creation and perfection of the security interests in favor of
Collateral Agent in the Collateral of such Credit Party and such other matters
as Collateral Agent may reasonably request, in each case in form and substance
reasonably satisfactory to Collateral Agent; and


 


(iv)      evidence
that such Credit Party shall have taken or caused to be taken any other action,
executed and delivered or caused to be executed and delivered any other
agreement, document and instrument (including without limitation, any
intercompany notes evidencing Indebtedness permitted to be incurred pursuant to
Section 6.1(b)) and made or caused to be made any other filing and
recording (other than as set forth herein) reasonably required by Collateral
Agent.


 


“Periodic Dividend Amount” means (x) $16,000,000 minus (y) the
sum of the aggregate amount of Restricted Payments made pursuant to Section 6.5(d)(i) during
the Fiscal Quarter in which the subject Restricted Payment is to be paid and
the three Fiscal Quarters most recently ended.


 


“Permitted Acquisition” means any acquisition by Company or any of its
wholly-owned Guarantor Subsidiaries, whether by purchase, merger or otherwise,
of all or substantially all of the assets of, all of the Capital Stock of, or a
business line or unit or a division of, any Person; provided, that: (i) immediately
prior to, and after giving effect thereto, no Default or Event of Default shall
have occurred and be continuing or would result therefrom; (ii) all
transactions in connection therewith shall be consummated, in all material respects,
in accordance with all applicable laws and in conformity with all applicable
Governmental Authorizations; (iii) in the case of the acquisition of
Capital Stock, all of the Capital Stock (except for any such Securities in the
nature of directors’ qualifying shares required pursuant to applicable law)
acquired or otherwise issued by such Person or any newly formed Subsidiary of
Company in connection with such acquisition shall be owned not less than 80% by
Company or a Guarantor Subsidiary thereof, and Company shall have taken, or
caused to be taken, each of the actions (and within the time periods) set forth
in Sections 5.10 and/or 5.11, as applicable; (iv) any Person or assets or
division as acquired in accordance herewith shall be in same business or lines
of business in which Company and/or its Subsidiaries are engaged as of the
Closing Date or any business reasonably related thereto; and (v) each such
Permitted Acquisition shall be 


 


23

















 


effectuated pursuant to
the terms of a consensual merger or stock purchase agreement or other
consensual acquisition agreement between the Company or the applicable
Subsidiary and the applicable seller or Person being so acquired.


 


“Permitted Liens” means each of the Liens permitted pursuant to Section 6.2.


 


“Permitted Loan Purchase” means one or more purchases by the
Borrower of Loans that are not yet due and owing to any Lender; provided that (i) each
offer to purchase Loans shall be for a minimum principal amount of not less
than $5,000,000 (although the Loans actually purchased pursuant to such offer
may be less than $5,000,000 if less than that amount is submitted for sale by
Lenders in response to such purchase offer), (ii) the aggregate principal
amount of all such purchases shall not exceed the lesser of (x) $50,000,000
and (y) Loan Purchase Limit then in effect, (iii) all such purchases
shall be consummated on or before December 31, 2009, (iv) such
purchases shall be implemented pursuant to an offer in the form of Exhibit A
attached to the First Amendment, which offer is made to all Lenders; provided
that the initial Permitted Loan Purchase shall be implemented pursuant to an
offer in the form of Exhibit B attached to the First Amendment, (v) the
Borrower shall not borrow under the Revolving Credit Facility for the purpose
of funding any such Permitted Loan Purchase and (vi) the Borrower and the
assigning Lender(s) shall have executed and delivered to Administrative
Agent an Assignment Agreement pursuant to Section 10.6(d).  Notwithstanding anything to the contrary in
the foregoing, clauses (i) and (iv) of the preceding sentence will
not apply with respect to Permitted Loan Purchases of up to $5,000,000 in
aggregate principal amount purchased, provided such purchases otherwise meet
the foregoing definition of a “Permitted Loan Purchase”.


 


“Permitted Refinancing”  means, with respect to any Indebtedness,
extensions, renewals, refinancings or replacements of such Indebtedness
provided that such extensions, renewals, refinancings or replacements (i) are
on terms and conditions (including the terms and conditions of any guarantees
of or other credit support for such Indebtedness) not materially less favorable
taken as a whole to Company and its Subsidiaries, the Agents or the Lenders
than the terms and conditions of the Indebtedness being extended, renewed,
refinanced or replaced, (ii) do not add as an obligor any Person that
would not have been an obligor under the Indebtedness being extended, renewed
replaced or refinanced, (iii) do not result in a greater principal amount
or shorter remaining average life to maturity than the Indebtedness being
extended, renewed replaced or refinanced and (iv) are not effected at any
time when a Default or Event of Default has occurred and is continuing or would
result therefrom.


 


“Person”
means and includes natural persons, corporations, limited partnerships, general
partnerships, limited liability companies, limited liability partnerships,
joint stock companies, Joint Ventures, associations, companies, trusts, banks,
trust companies, land trusts, business trusts or other organizations, whether
or not legal entities, and Governmental Authorities.


 


“Phase I Report” means, with respect to any Facility, a report that (i) conforms
to the ASTM Standard Practice for Environmental Site Assessments: Phase I
Environmental Site Assessment Process, E 1527, (ii) was conducted no more
than six months prior to the date such report is required to be delivered
hereunder, by one or more environmental consulting firms 


 


24

















 


reasonably satisfactory
to Administrative Agent, (iii) includes an assessment of
asbestos-containing materials at such Facility, (iv) is accompanied by (a) an
estimate of the reasonable worst-case cost of investigating and remediating any
Hazardous Materials Activity identified in the Phase I Report as giving rise to
an actual or potential material violation of any Environmental Law or as
presenting a material risk of giving rise to a material Environmental Claim,
and (b) a current compliance audit setting forth an assessment of Holdings’,
its Subsidiaries’ and such Facility’s current and past compliance with
Environmental Laws and an estimate of the cost of rectifying any non-compliance
with current Environmental Laws identified therein and the cost of compliance
with reasonably anticipated future Environmental Laws identified therein.


 


“Pledge and Security Agreement” means the Pledge and Security Agreement dated as of
the Closing Date by Borrower and each Guarantor, substantially in the form of Exhibit I,
as it may be amended, supplemented or otherwise modified from time to time.


 


“Prepayment Amount” has the meaning assigned to that term in Section 2.14(d).


 


“Prime Rate” means the rate of interest per annum announced from time to time by
Credit Suisse as its prime commercial lending rate in effect at its principal
office in New York City.  The Prime Rate
is a reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer.  Credit
Suisse or any other Lender may make commercial loans or other loans at rates of
interest at, above or below the Prime Rate.


 


“Principal Office” means, Administrative Agent’s “Principal Office” as
set forth on Appendix B, or such other office as Administrative Agent may from
time to time designate in writing to Borrower and each Lender.


 


“Projections” has the meaning assigned to that term in Section 4.8.


 


“Pro Rata Share” means: with respect to all payments, computations and
other matters relating to the Term Loans of any Lender, the percentage obtained
by dividing (a) the Term Loan Exposure of that Lender by (b) the
aggregate Term Loan Exposure of all Lenders. 
For all other purposes with respect to each Lender, “Pro Rata Share”
means the percentage obtained by dividing (A) an amount equal to the sum
of the Term Loan Exposure of that Lender, by (B) an amount equal to the
sum of the aggregate Term Loan Exposure of all Lenders.


 


“Qualifying IPO” means the consummation of
the first underwritten public offering of the Capital Stock (other than
Disqualified Capital Stock) of Holdings following the Closing Date pursuant to
a registration statement filed with the Securities and Exchange Commission in
accordance with the Securities Act.


 


“Qualifying IPO Payment” means,
concurrent with the closing of a Qualifying IPO, the one-time payment to
Sponsor in connection with the termination of the Management Services Agreement
in an aggregate amount not to exceed $6,000,000.


 


“Qualifying Preferred Stock Redemption” means,
concurrent with the closing of a Qualifying IPO, the payment of $1,000 to
Aurora Equity Partners II L.P. and $1,000 to Ares Limited Partnership in
respect of the redemption of the one share of Series B Preferred Stock and



 


25

















 


Series C
Preferred Stock held by Aurora Equity Partners II L.P. and the Ares Limited
Partnership, respectively.


 


“Qualifying Senior Notes Redemption” means,
concurrent with the closing of a Qualifying IPO, the Borrower and DD Finance (i) have
given irrevocable and unconditional notice of redemption for all of the
outstanding Senior Notes, (ii) have timely and irrevocably deposited or
caused to be deposited with the trustee under the Senior Notes Indenture proceeds
of a Qualifying IPO, proceeds of Additional Term Loans, Cash and/or proceeds of
Revolving Loans (as defined in the Revolving Credit Facility) sufficient to pay
and discharge the entire indebtedness (including all principal, premium, if
any, and accrued interest) on all outstanding Senior Notes and (iii) have
satisfied all other conditions precedent to the discharge of the Senior Notes
Indenture set forth in Section 8.8 of the Senior Notes Indenture.


 


“Real Estate Asset” means, at any time of determination, any interest
(fee, leasehold or otherwise) then owned by any Credit Party in any real
property.


 


“Real Estate Asset Deliverables” means, with
respect to any Real Estate Asset acquired by any Credit Party, or held by any
Person that becomes a Credit Party, and to the extent required to be delivered
pursuant to Section 5.11:


 


(i)             fully
executed and notarized Mortgages, in proper form for recording in all
appropriate places in all applicable jurisdictions, encumbering such Real
Estate Asset;


 


(ii)          at
the request of the Collateral Agent, an opinion of counsel (which counsel shall
be reasonably satisfactory to Collateral Agent) in each state in which such
Real Estate Asset is located with respect to the enforceability of the form(s) of
Mortgages to be recorded in such state and such other matters as Collateral
Agent may reasonably request, in each case in form and substance reasonably
satisfactory to Collateral Agent;


 


(iii)       at the
request of the Collateral Agent, (a) ALTA mortgagee title insurance
policies or unconditional commitments therefore issued by one or more title
companies reasonably satisfactory to Collateral Agent with respect to such Real
Estate Asset, in amounts satisfactory to the Collateral Agent with respect to
such Real Estate Asset, together with a title report issued by a title company
with respect thereto (each, a “Title Policy”)
and dated as of a recent date prior to the date which such Real Estate Asset is
acquired or such Person becomes a Credit Party, as the case may be, and copies
of all recorded documents listed as exceptions to title or otherwise referred
to therein, each in form and substance reasonably satisfactory to Collateral
Agent and (b) evidence satisfactory to Collateral Agent that such Credit
Party has paid to 


 


26

















 


the title company or to the appropriate governmental
authorities all expenses and premiums of the title company and all other sums
required in connection with the issuance of each Title Policy and all recording
and stamp taxes (including mortgage recording and intangible taxes) payable in
connection with recording the Mortgages for such Real Estate Asset in the
appropriate real estate records;


 


(iv)      evidence of
flood insurance with respect to each Flood Hazard Property that is located in a
community that participates in the National Flood Insurance Program, in each
case in compliance with any applicable regulations of the Board of Governors of
the Federal Reserve System, in form and substance reasonably satisfactory to
Collateral Agent; and


 


(v)         at the
request of the Collateral Agent, ALTA surveys of such Real Estate Asset,
certified to Collateral Agent and dated as of a recent date which such Real
Estate Asset is acquired or such Person becomes a Credit Party, as the case may
be.


 


“Register” has the meaning assigned to that term in Section 2.6(b).


 


“Regulation D” means Regulation D of the Board of Governors of
the Federal Reserve System, as in effect from time to time.


 


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


 


“Related Lender Assignment” has the meaning assigned to that term in Section 10.6(c).


 


“Release” means any release, spill, emission, leaking, pumping, pouring,
injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching
or migration of any Hazardous Material into the indoor or outdoor environment
(including the abandonment or disposal of any barrels, containers or other
closed receptacles containing any Hazardous Material), including the movement
of any Hazardous Material through the air, soil, surface water or groundwater.


 


“Replacement Lender” has the meaning assigned to that term in Section 2.22.


 


“Requisite Lenders” means one or more Lenders having or holding Term Loan
Exposure and representing more than 50% of the sum of the aggregate Term Loan
Exposure of all Lenders.


 


27

















 


“Restricted Payment” means (i) any dividend or other distribution
(including, for the avoidance of doubt, any payment pursuant to Section 6.5(d)),
direct or indirect, on account of any shares of any class of stock (or of any
other Capital Stock) of Holdings or Company now or hereafter outstanding,
except a dividend payable solely in shares of that class of stock to the holders
of that class; (ii) any redemption, retirement, sinking fund or similar
payment, purchase or other acquisition for value, direct or indirect, of any
shares of any class of stock (or of any other Capital Stock) of Holdings or
Company 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 stock (or of any other Capital Stock) of
Holdings or Company now or hereafter outstanding; (iv) management or
similar fees payable to Sponsor or any of its Affiliates; and (v) any
payment or prepayment of principal of, premium, if any, or interest on, or
redemption, purchase, retirement, defeasance (including in-substance or legal
defeasance), sinking fund or similar payment with respect to, any Indebtedness
permitted pursuant to Sections 6.1(b), 6.1(e) (in respect of Indebtedness
incurred under Sections 6.1(b), 6.1(k) (to the extent constituting
subordinated Indebtedness) or 6.1(m)), 6.1(k) (to the extent constituting
subordinated Indebtedness) or 6.1(m). 
Notwithstanding anything to the contrary contained herein, (i) the
redemption of the Senior Notes pursuant to the Qualifying Senior Notes
Redemption shall not be treated as a Restricted Payment for any purpose
hereunder, (ii) the Qualifying IPO Payment shall not be treated as a
Restricted Payment for any purpose hereunder, and (iii) the redemption by
Holdings of any preferred stock of Holdings pursuant to a Qualifying Preferred
Stock Redemption shall not be treated as a Restricted Payment for any purpose
hereunder.


 


“Restricted Payment Amount”  means, as of any date of determination,
an amount set forth on the Restricted Payment Certificate delivered to the
Administrative Agent no later than 10:00 a.m. (New York City time) at
least three (3) Business Days in advance of the payment date of the
transaction giving rise to a determination of the Restricted Payment Amount
(which can be less than zero), equal to (a) the difference (but not less
than zero) between (i) Restricted Payment EBITDA and (ii) the product
of 2.0 multiplied by Cumulative Interest Expense (determined, in each case, for
the period commencing on the first day of the first full Fiscal Quarter after
the Closing Date through and including the last full Fiscal Quarter (taken as
one accounting period) preceding such date of determination), plus (b) 100%
of  the aggregate net cash proceeds
received by the Company from a capital contribution or sale of Capital Stock to
Holdings after the Closing Date, plus (c) except in each case, in
order to avoid duplication, to the extent any such payment or proceeds have
been included in the calculation of Restricted Payment EBITDA, an amount equal
to the net amounts received in respect of Investments made under Section 6.7(l) or
6.7(m) in any Person resulting from cash distributions on or cash
repayments of any Investments, including payments of interest on Indebtedness,
dividends, repayments of loans or advances, or other distributions or other
transfers of assets, in each case to Company, DD Finance, Fisher or any of
their respective Subsidiaries or from the net cash proceeds from the sale of
any such Investment, not to exceed, in each case, the amount of Investments
previously made by Company, DD Finance, Fisher or any of their respective
Subsidiaries in such Person, less the cost of disposition (and excluding
Investments in Subsidiaries), minus (d) the sum of (i) the
aggregate amount of Restricted Payments made pursuant to Sections 6.5(a)(ii) (other
than to the Company or a wholly-owned Subsidiary Guarantor) and 6.5(c)(iv); and
(ii) (without duplication) amounts applied or utilized pursuant to Section 6.5(d)(i),
Section 6.5(f), Section 6.7(l) or Section 6.7(m) or Section 6.16(d).  For 


 


28

















 


purposes of this
definition, (i) the amount of any payment or Investment made or returned
hereunder, if other than in cash, shall be the fair market value thereof, as
determined in the good faith reasonable judgment of the board of directors of
the Company (or similar governing body) for such payments or Investments with a
value in excess of $1.0 million, and otherwise by an executive officer of the
Company at the time made or returned, as applicable, (ii) interest with respect
to Capital Leases shall be deemed to accrue at an interest rate reasonably
determined in good faith by the Company to be the rate of interest implicit in
such Capital Lease in accordance with GAAP and (iii) interest expense
attributable to any Indebtedness represented by the guarantee by the Company or
any of its Subsidiaries of an obligation of another Person shall be deemed to
be the interest expense attributable to the Indebtedness guaranteed.   Notwithstanding anything to the contrary
contained herein, (i) the redemption of the Senior Notes pursuant to the
Qualifying Senior Notes Redemption shall not reduce the Restricted Payment
Amount for any purpose hereunder, (ii) the Qualifying IPO Payment shall
not reduce the Restricted Payment Amount for any purpose hereunder, (iii) the
proceeds of a Qualifying IPO shall not increase the Restricted Payment Amount
for any purpose hereunder, and (iv) the redemption of preferred stock of
Holdings pursuant to the Qualifying Preferred Stock Redemption shall not reduce
the Restricted Payment Amount for any purpose hereunder.


 


“Restricted Payment
Certificate” means a Restricted Payment Certificate substantially in
the form of Exhibit K.


 


“Restricted Payment EBITDA” means, for any period and without duplication, (a) Consolidated
Adjusted EBITDA for such period, plus (b) the sum of each of the
following to the extent deducted in the calculation of Consolidated Net Income
for such period, (i) all losses which are non-recurring, (ii) interest
attributable to Attributable Indebtedness, and (iii) the amount of all
dividends accrued or payable (whether or not in cash) by the Company or any of
its Subsidiaries in respect of preferred stock (other than (A) dividends
on Capital Stock (other than Disqualified Capital Stock) of the Company or such
Subsidiary payable solely in Capital Stock (other than Disqualified Capital
Stock) of the Company or such Subsidiary, as applicable, and (B) dividends
by Subsidiaries of the Company to the Company or its wholly-owned
Subsidiaries), plus (c) the aggregate amount of interest income of
the Company and its Subsidiaries during such period paid in cash to the extent
reducing Consolidated Adjusted EBITDA minus (d) all gains which are
non-recurring (including any gain from the issuance or sale of any Capital
Stock) to the extent included in the calculation of Consolidated Net Income for
such period.


 


“Revolving Credit Document” all documents,
instruments or agreements executed and delivered by Holdings or any of its
subsidiaries for the benefit of any agent or lender in connection with the
Revolving Credit Facility.


 


“Revolving Credit Facility”
means the $60.0 million senior secured revolving credit facility pursuant to
the revolving credit agreement dated as of the Closing Date among Holdings, the
Company, Fisher, DD Finance, the lenders party thereto, Credit Suisse as
administrative agent and JPMorgan Chase Bank, N.A., as collateral agent, as it
may be amended, modified, refinanced or replaced from time to time, including
amendments increasing the principal amount of revolving loans available
thereunder.


 


29

















 


“RP Conditions” means (i) the
sum of (x) the aggregate amount of Cash of the Borrower in Deposit
Accounts subject to a Blocked Account Agreement and (y) Excess
Availability (as defined in the Revolving Credit Facility) is at least
$12,000,000; provided, that Excess Availability will be calculated without
giving effect to any Cash, and (ii) the Leverage Ratio is less than 6.0 to
1.0.


 


“S&P” means Standard & Poor’s Ratings Group, a division of The
McGraw Hill Corporation.


 


“Second Amendment” means Amendment No. 2 to Credit and
Guaranty Agreement, dated as of April 16, 2010, among the Company and the
Lenders party thereto.


 


“Second Amendment Effective Date” means the date on which the
Second Amendment became effective in accordance with its terms.


 


“Second Offer” has the meaning assigned to that term in Section 2.14(d).


 


“Second Priority” means, with respect to any Lien purported to be
created in any Collateral pursuant to any Collateral Document, that such Lien
is the only Lien to which such Collateral is subject, other than any Permitted
Lien.


 


“Secured Debt Ratio” means the ratio as of the date of
determination of (i) Consolidated Secured Debt, less unrestricted Cash and
Cash Equivalents of the Company and its Subsidiaries in excess of $1,000,000,
the contents of which are in a Blocked Account, as of such date, to (ii) Consolidated
Adjusted EBITDA for the Test Period most recently ended.


 


“Secured Parties” has the meaning assigned to that term in the Pledge
and Security Agreement.


 


“Section 6.5(d) Certificate” means a
certificate of an Authorized Officer (i) certifying that the conditions to
the making of a Restricted Payment set forth in Section 6.5(d)(i) have
been satisfied and (ii) designating the portion of such Restricted Payment
made in reliance upon (x) the Periodic Dividend Amount and (y) the
Restricted Payment Amount.  Any such
designation made pursuant to clause (ii) of the preceding sentence shall
be permanent.


 


“Securities” means any stock, shares, partnership interests, voting trust
certificates, certificates of interest or participation in any profit-sharing
agreement or arrangement, options, warrants, bonds, debentures, notes, or other
evidences of indebtedness, secured or unsecured, convertible, subordinated or
otherwise, or in general any instruments commonly known as “securities” or any
certificates of interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to,
purchase or acquire, any of the foregoing.


 


“Securities Act” means the Securities Act of 1933, as amended from
time to time, and any successor statute.


 


“Senior Notes”  means the Senior Notes issued pursuant to
the Senior Notes Indenture.


 


30














 


“Senior Notes Indenture”  means that certain Indenture dated as of December 16,
2004, by and among the Company, DD Finance and U.S. Bank National Association,
as Indenture Trustee, governing the Company’s 7 3⁄4% Senior Notes due 2012.


 


“Solvency Certificate”  means a Solvency Certificate of the chief
financial officer of Holdings and Borrower substantially in the form of Exhibit G.


 


“Solvent” means, with respect to any Person, that as of the date of
determination both (A) (i) the then fair saleable value of the
property of such Person is (y) greater than the total amount of
liabilities (including contingent liabilities) of such Person and (z) not
less than the amount that will be required to pay the probable liabilities on
such Person’s then existing debts as they become absolute and matured
considering all financing alternatives and potential asset sales reasonably
available to such Person; (ii) such Person’s capital is not unreasonably
small in relation to its business or any contemplated or undertaken transaction;
and (iii) such Person has not incurred and does not intend to incur, or
believe (nor should it reasonably believe) that it will incur, debts beyond its
ability to pay such debts as they become due (whether at maturity or
otherwise); and (B) such Person is “solvent” within the meaning given that
term and similar terms under applicable laws relating to fraudulent transfers
and conveyances.  For purposes of this
definition, the amount of any contingent liability at any time shall be
computed as the amount that, in light of all of 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, collectively, the Aurora Group Investors, the  Ares Group Investors and the Affiliates
(without giving effect to clause (i) of the last sentence of the
definition of such term) of Aurora Management Partners LLC or Ares Management
LLC.


 


“Subject Transaction” has the meaning assigned to that term in Section 6.8(c)(i).


 


“Subsidiary” means, with respect to any Person, any corporation, partnership,
limited liability company, association, joint venture or other business entity
of which more than 50% of the total voting power of shares of stock or other
ownership interests entitled (without regard to the occurrence of any
contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and
policies thereof is at the time owned or controlled, directly or indirectly, by
that Person or one or more of the other Subsidiaries of that Person or a
combination thereof; provided, in determining the percentage of
ownership interests of any Person controlled by another Person, no ownership
interest in the nature of a “qualifying share” of the former Person shall be
deemed to be outstanding.


 


“Tax”
means, with respect to any Person, any present or future tax, levy, impost,
duty, assessment, charge, fee, deduction or withholding of any nature and
whatever called, by whomsoever, on whomsoever and wherever imposed, levied,
collected, withheld or assessed; provided, however, solely for
purposes of Sections 2.18 and 2.19, the foregoing shall not include (a) taxes
imposed on or measured by such Person’s overall net income (however
denominated), and franchise taxes imposed on such Person (in lieu of net income
taxes), by the jurisdiction (or any political subdivision thereof) under the
laws of which such Person is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable lending office 


 


31

















 


is located, (b) any
branch profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction in which Company is located and (c) in
the case of a Non-US Lender, any withholding tax that is imposed on amounts
payable to such Lender at the time such Lender becomes a party hereto (or
designates a new lending office) or is attributable to such Lender’s failure
(other than as a result of a Change in Law) to comply with Section 2.19(c),
except to the extent that such Lender (or its assignor, if any) was entitled,
at the time of designation of a new lending office (or assignment), to receive
additional amounts from Company with respect to such withholding tax pursuant
to Section 2.19(a) or Section 2.19(b).


 


“Term Loan” means, collectively, the Term Loans outstanding on the Second Amendment
Effective Date (other than Additional Term Loans made pursuant to the Second
Amendment) and the Additional Term Loans.


 


“Term Loan Commitment” means the commitment of a Lender to make or otherwise
fund any Term Loan and “Term Loan Commitments”  means such commitments of all
Lenders in the aggregate.


 


“Term Loan Exposure” means, with respect to any Lender as of any date of
determination, the outstanding principal amount of the Term Loans of such
Lender; provided, at any time prior to the making of the Additional Term
Loans, the Term Loan Exposure of any Lender shall be equal to the principal
amount of the Term Loans of such Lender outstanding on the Second Amendment
Effective Date (other than Additional Term Loans) plus such Additional Lender’s
Term Loan Commitment.


 


“Term Loan Joinder
Agreement” means the Term Loan Joinder Agreement,  dated as of the Second Amendment Effective
Date, among the Company, the Administrative Agent and the Lenders party
thereto.


 


“Term Loan Note” means a promissory note in the form of Exhibit B,
as it may be amended, supplemented or otherwise modified from time to time.


 


“Term Priority Collateral”  has the meaning assigned to that term in the Intercreditor
Agreement.


 


“Terminated Lender”  has the meaning assigned to that term in Section 2.22.


 


“Test Period” means, at any time, the four Fiscal Quarters last
ended (in each case taken as one accounting period) for which financial
statements are required to have been delivered, pursuant to Section 5.1(b).


 


“Title Policy” has the meaning assigned to that term in the
definition of “Real Estate Asset Deliverables.”


 


“Type of Loan” means a Base Rate Loan or a Eurodollar Rate Loan.


 


“UCC”
means the Uniform Commercial Code (or any similar or equivalent legislation) as
in effect in any applicable jurisdiction.


 


32

















 


1.2          Accounting
Terms.  Except as
otherwise expressly provided herein, all accounting terms not otherwise defined
herein shall have the meanings assigned to them in conformity with GAAP.  Financial statements and other information
required to be delivered by Holdings to Lenders pursuant to Section 5.1(b) and
5.1(c) shall be prepared in accordance with GAAP as in effect at the time
of such preparation (and delivered together with the reconciliation statements
provided for in Section 5.1(e), if applicable).  Subject to the foregoing, calculations in
connection with the definitions, covenants and other provisions hereof shall
utilize accounting principles and policies in conformity with those used to
prepare the most recent financial statements referred to in Section 4.7;
provided that, solely for purposes of calculating the Restricted Payment
Amount, the terms used in, or otherwise relating to, the definition of “Restricted
Payment Amount” shall, except as otherwise expressly provided herein, have the
meanings assigned to them in conformity with GAAP as in effect from time to
time.


 


1.3          Interpretation,
etc.  Any of the terms defined herein
may, unless the context otherwise requires, be used in the singular or the
plural, depending on the reference. 
References herein to any Section, Appendix, Schedule or Exhibit shall
be to a Section, an Appendix, a Schedule or an Exhibit, as the case may be,
hereof unless otherwise specifically provided. 
The use herein of the word “include” or “including,” when following any
general statement, term or matter, shall not be construed to limit such
statement, term or matter to the specific items or matters set forth
immediately following such word or to similar items or matters, whether or not
no limiting language (such as “without limitation” or “but not limited to” or
words of similar import) is used with reference thereto, but rather shall be
deemed to refer to all other items or matters that fall within the broadest
possible scope of such general statement, term or matter.


 


SECTION 2.         LOANS


 


2.1          Term
Loans.


 


(a)           Loan
Commitments.  Subject to the terms
and conditions hereof, (i) each Lender existing on the Closing Date made a
Term Loan to the Company on the Closing Date, and (ii) each Additional
Term Loan Lender has, pursuant to the Term Loan Joinder Agreement, severally
agreed to make, on the Second Amendment Effective Date, an Additional Term Loan
to the Company in an amount equal to such Lender’s Additional Term Loan
Commitment as set forth in the Term Loan Joinder Agreement.  Any amount borrowed under this Section 2.1(a) and
subsequently repaid or prepaid may not be reborrowed.  Subject to Sections 2.11, 2.12 and 2.13, (i) all
amounts owed hereunder with respect to the Term Loans (other than the
Additional Term Loans) shall be paid in full no later than the Maturity Date
and (ii) all amounts owed hereunder with respect to the Additional Term
Loans shall be paid in full no later than the Additional Term Loan Maturity
Date.  Each Lender’s Additional Term Loan
Commitment shall terminate immediately and without further action on the Second
Amendment Effective Date after giving effect to the funding of such Lender’s
Additional Term Loan Commitment pursuant to the Term Loan Joinder Agreement on
such date.


 


33

















 


(b)           Borrowing
Mechanics for Term Loans.


 


(i)            In the
case of Term Loans (other than Additional Term Loans), Company shall deliver to
Administrative Agent a fully executed and delivered Funding Notice no later
than 10:00 a.m. (New York City time) at least (x) three (3) Business
Days in advance of the Closing Date in the case of a Eurodollar Rate Loan to be
made on the Closing Date or (y) one (1) Business Day in advance of
the Closing Date in the case of a Base Rate Loan to be made on the Closing
Date.  Promptly upon receipt by
Administrative Agent of such Funding Notice, Administrative Agent shall notify
each Lender of the proposed borrowing. 
In the case of Additional Term Loans, the borrowing procedures are set
forth in the Term Loan Joinder Agreement.


 


(c)           In
the case of Term Loans (other than Additional Term Loans) each Lender shall
make its Term Loan available to Administrative Agent not later than 12:00 p.m.
(New York City time) on the Closing Date by wire transfer of same day funds in
Dollars, at Administrative Agent’s Principal Office.  Except as provided herein, upon satisfaction
or waiver of the conditions precedent specified herein, Administrative Agent
shall make the proceeds of the Term Loans (other than Additional Term Loans)
available to Company on the Closing Date by causing an amount of same day funds
in Dollars equal to the proceeds of all such Loans received by Administrative
Agent from Lenders to be credited to the account of Company at Administrative
Agent’s Principal Office or to such other account as may be designated in such
Funding Notice.


 


2.2          [RESERVED]


 


2.3          [RESERVED]


 


2.4          Pro
Rata Shares; Availability of Funds.


 


(a)           Pro
Rata Shares.  All Loans shall be
made, and all participations purchased, by Lenders simultaneously and
proportionately to their respective Pro Rata Shares, it being understood that
no Lender shall be responsible for any default by any other Lender in such
other Lender’s obligation to make a Loan requested hereunder or purchase a
participation required hereby nor shall any Term Loan Commitment of any Lender
be increased or decreased as a result of a default by any other Lender in such
other Lender’s obligation to make a Loan requested hereunder or purchase a
participation required hereby.


 


(b)           Availability
of Funds.  Unless Administrative
Agent shall have been notified by any Lender prior to the applicable Credit
Date that such Lender does not intend to make available to Administrative Agent
the amount of such Lender’s Loan requested on such Credit Date, Administrative
Agent may assume that such Lender has made such amount available to
Administrative Agent on such Credit Date and Administrative Agent may, in its
sole discretion, but shall not be obligated to, make available to Borrower a
corresponding amount on such Credit Date. 
If such corresponding amount is not in fact made available to
Administrative Agent by such Lender, Administrative Agent shall be entitled to
recover such corresponding amount on demand from such Lender together with
interest thereon, for each


 


34

















 


day from such Credit Date until the date such amount is paid
to Administrative Agent, at the customary rate set by Administrative Agent for
the correction of errors among banks for three (3) Business Days and
thereafter at the Base Rate.  If such
Lender does not pay such corresponding amount forthwith upon Administrative
Agent’s demand therefor, Administrative Agent shall promptly notify Borrower
and Borrower shall immediately pay such corresponding amount to Administrative
Agent together with interest thereon, for each day from such Credit Date until
the date such amount is paid to Administrative Agent, at the rate applicable to
such Loan.  Nothing in this Section 2.4(b) shall
be deemed to relieve any Lender from its obligation to fulfill its Term Loan
Commitments hereunder or to prejudice any rights that Borrower may have against
any Lender as a result of any default by such Lender hereunder.


 


2.5          Use of
Proceeds.  The proceeds of Term Loans drawn on the
Closing Date shall be used to repay outstanding obligations under the Existing
Credit Agreement and pay transaction expenses. 
The proceeds of Additional Term Loans shall be used to repay
outstanding Senior Notes.  No portion of
the proceeds of any Credit Extension shall be used in any manner that causes or
might cause such Credit Extension or the application of such proceeds to
violate Regulation T, Regulation U or Regulation X of the Board
of Governors of the Federal Reserve System or any other regulation thereof or
to violate the Exchange Act.


 


2.6          Evidence
of Debt; Register; Lenders’ Books and Records; Notes.


 


(a)           Lenders’
Evidence of Debt.  Each Lender shall
maintain on its internal records an account or accounts evidencing the
Obligations of Borrower to such Lender, including the amounts of the Loans made
by it and each repayment and prepayment in respect thereof.  Any such recordation shall be conclusive and
binding on Borrower, absent manifest error; provided, that the failure
to make any such recordation, or any error in such recordation, shall not
affect any Borrower’s Obligations in respect of any applicable Loans; and provided
further, in the event of any inconsistency between the Register and any
Lender’s records, the recordations in the Register shall govern.


 


(b)           Register.  Administrative Agent shall maintain at its
Principal Office a register for the recordation of the names and addresses of
Lenders and Loans of each Lender from time to time (the “Register”).  In the case of a
Related Lender Assignment described in Section 10.6(e) that is not
reflected in the Register, the assigning Lender shall maintain a comparable
register, which shall be made available for inspection by Administrative Agent
at any reasonable time and from time to time upon reasonable prior notice to
such Lender.  The Register shall be
available for inspection by Borrower or any Lender at any reasonable time and
from time to time upon reasonable prior notice. 
Administrative Agent shall record in the Register the Loans, and each
repayment or prepayment in respect of the principal amount of the Loans, and
any such recordation shall be conclusive and binding on Borrower and each
Lender, absent manifest error; provided, failure to make any such
recordation, or any error in such recordation, shall not affect Borrower’s
Obligations in respect of any Loan. 
Borrower hereby designates Credit Suisse to serve as Borrower’s agent
solely for purposes of maintaining the Register as provided in this Section 2.6,
and Borrower hereby agrees that, to


 


35

















 


the extent Credit Suisse serves in such capacity, Credit
Suisse and its officers, directors, employees, agents and affiliates shall
constitute “Indemnitees.”


 


(c)           Notes.  If so requested by any Lender by written
notice to Borrower at least two (2) Business Days prior to the Closing
Date, or at any time thereafter, Borrower shall execute and deliver to such
Lender (and/or, if applicable and if so specified in such notice, to any Person
who is an assignee of such Lender pursuant to Section 10.6, other than an
assignee party to a Related Lender Assignment described in Section 10.6(e))
on the Closing Date (or, if such notice is delivered after the Closing Date,
promptly after Borrower’s receipt of such notice) a Note or Notes to evidence
such Lender’s Term Loan.


 


2.7          Interest
on Loans.


 


(a)           Except
as otherwise set forth herein, each Term Loan shall bear interest on the unpaid
principal amount thereof from the date made through repayment (whether by
acceleration or otherwise) thereof as follows:


 


(i)             if
a Base Rate Loan, at the Base Rate plus the Applicable Margin; or


 


(ii)          if
a Eurodollar Rate Loan, at the Adjusted Eurodollar Rate plus the Applicable
Margin.


 


(b)           The
basis for determining the rate of interest with respect to any Loan, and the
Interest Period with respect to any Eurodollar Rate Loan, shall be selected by
Borrower and notified to Administrative Agent and Lenders pursuant to the
applicable Funding Notice or Conversion/Continuation Notice, as the case may
be.  If on any day a Loan is outstanding
with respect to which a Conversion/Continuation Notice has not been delivered
to Administrative Agent in accordance with the terms hereof specifying the
applicable basis for determining the rate of interest, then for that day such
Loan shall be a Base Rate Loan.


 


(c)           In
connection with Eurodollar Rate Loans there shall be no more than ten (10) Interest
Periods outstanding at any time.  In the
event Borrower fails to specify between a Base Rate Loan or a Eurodollar Rate
Loan in the applicable Funding Notice or Conversion/Continuation Notice, such
Loan (if outstanding as a Eurodollar Rate Loan) will be automatically converted
into a Base Rate Loan on the last day of the then-current Interest Period for
such Loan (or if outstanding as a Base Rate Loan will remain as, or (if not
then outstanding) will be made as, a Base Rate Loan).  In the event Borrower fails to specify an
Interest Period for any Eurodollar Rate Loan in the applicable Funding Notice
or Conversion/Continuation Notice, Borrower shall be deemed to have selected an
Interest Period of one month.  As soon as
practicable after 10:00 a.m. (New York City time) on each Interest Rate
Determination Date, Administrative Agent shall determine (which determination
shall,


 


36

















 


absent manifest error, be final, conclusive and binding upon
all parties) the interest rate that shall apply to the Eurodollar Rate Loans
for which an interest rate is then being determined for the applicable Interest
Period and shall promptly give notice thereof (in writing or by telephone
confirmed in writing) to Borrower and each Lender.


 


(d)           Interest
payable pursuant to Section 2.7(a) shall be computed (i) in the
case of Base Rate Loans at times when the Base Rate is based on the Prime Rate
on the basis of a 365-day or 366-day year, as the case may be, and (ii) in
the case of Eurodollar Rate Loans, and Base Rate Loans at times when the Base
Rate is based on the Federal Funds Effective Rate, on the basis of a 360-day
year, in each case for the actual number of days elapsed in the period during
which it accrues.  In computing interest
on any Loan, the date of the making of such Loan or the first day of an
Interest Period applicable to such Loan or, with respect to a Base Rate Loan
being converted from a Eurodollar Rate Loan, the date of conversion of such
Eurodollar Rate Loan to such Base Rate Loan, as the case may be, shall be
included, and the date of payment of such Loan or the expiration date of an
Interest Period applicable to such Loan or, with respect to a Base Rate Loan
being converted to a Eurodollar Rate Loan, the date of conversion of such Base
Rate Loan to such Eurodollar Rate Loan, as the case may be, shall be excluded; provided,
if a Loan is repaid on the same day on which it is made, one day’s interest
shall be paid on that Loan.


 


(e)           Except
as otherwise set forth herein, interest on each Loan shall be payable in
arrears on and to (i) each Interest Payment Date applicable to such Loan; (ii) upon
any prepayment of such Loan that is a Eurodollar Rate Loan, whether voluntary
or mandatory, to the extent accrued on the amount being prepaid; and (iii) at
maturity, including final maturity.


 


(f)            To
the extent any other Credit Document references “Loans”, “Term Loans” or loans
made under this Agreement for purposes of determining the applicable interest
rate (excluding any reference in connection with the payment of interest on the
principal amount of the Loans) and without specifying whether such reference is
intended to mean “Term Loans” or “Additional Term Loans”, each such reference
shall be interpreted to mean “Additional Term Loans”.


 


2.8          Conversion/Continuation.


 


(a)           Subject
to Section 2.17 and so long as no Default or Event of Default shall have
occurred and then be continuing, Borrower shall have the option:


 


(i)             to
convert at any time all or any part of any Term Loan equal to $2,000,000 and
integral multiples of $500,000 in excess of that amount from one Type of Loan
to another Type of Loan; provided, a Eurodollar Rate Loan may only be
converted on the expiration of


 


37

















 


the Interest Period applicable to such Eurodollar Rate Loan
unless Borrower shall pay all amounts due under Section 2.17 in connection
with any such conversion; or


 


(ii)          upon
the expiration of any Interest Period applicable to any Eurodollar Rate Loan,
to continue all or any portion of such Loan equal to $2,000,000 and integral
multiples of $500,000 in excess of that amount as a Eurodollar Rate Loan.


 


(b)           Borrower
shall deliver a Conversion/Continuation Notice to Administrative Agent no later
than 10:00 a.m. (New York City time) at least one Business Day in advance
of the proposed conversion date (in the case of a conversion to a Base Rate
Loan) and at least three (3) Business Days in advance of the proposed
conversion/continuation date (in the case of a conversion to, or a continuation
of, a Eurodollar Rate Loan).  Except as
otherwise provided herein, a Conversion/Continuation Notice for conversion to,
or continuation of, any Eurodollar Rate Loans (or telephonic notice in lieu
thereof) shall be irrevocable, and Borrower shall be bound to effect a
conversion or continuation in accordance therewith.


 


2.9          Default
Interest.  Upon the
occurrence and during the continuance of an Event of Default under Sections
8.1(a), 8.1(f) or 8.1(g), the principal amount of all Loans outstanding
and, to the extent permitted by applicable law, any interest payments on the
Loans not paid when due and any fees and other amounts then due and payable
hereunder, shall thereafter bear interest (including post-petition interest in
any proceeding under the Bankruptcy Code or other applicable bankruptcy laws)
payable on demand at a rate that is 2% per annum in excess of the interest rate
otherwise payable hereunder with respect to the applicable Loans (or, in the
case of any such fees and other amounts, at a rate which is 2% per annum in
excess of the interest rate otherwise payable hereunder for Base Rate Loans
constituting Term Loans (other than Additional Term Loans) or Additional Term
Loans, as applicable); provided, in the case of Eurodollar Rate Loans,
upon the expiration of the Interest Period in effect at the time any such
increase in interest rate is effective such Eurodollar Rate Loans shall
thereupon become Base Rate Loans and shall thereafter bear interest payable
upon demand at a rate which is 2% per annum in excess of the interest rate
otherwise payable hereunder for Base Rate Loans constituting Term Loans (other
than Additional Term Loans) or Additional Term Loans, as applicable.  Payment or acceptance of the increased rates
of interest provided for in this Section 2.9 is not a permitted
alternative to timely payment and shall not constitute a waiver of any Event of
Default or otherwise prejudice or limit any rights or remedies of
Administrative Agent, Collateral Agent or any Lender.


 


2.10        Fees.  Company agrees to pay to
Arranger and Agents such other fees and other payments in the amounts and at
the times separately agreed upon.


 


2.11        Scheduled
Term Loan Payments.  The
principal amounts of the Term Loans shall be repaid in consecutive quarterly
installments in amounts equal to 0.25% of the Term


 


38

















 


Loans funded on the Closing Date or the Second Amendment Effective
Date, as applicable, on the last day of each Fiscal Quarter, with the balance of
the Term Loans (other than the Additional Term Loans) payable on the Maturity
Date and the balance of the Additional Term Loans payable on the Additional
Term Loan Maturity Date (each of such consecutive quarterly installments and
the payment of the balances on the Maturity Date and the Additional Term Loan
Maturity Date, an “Installment”).


 


Notwithstanding
the foregoing, (x) such Installments shall be reduced pro rata in
connection with any voluntary or mandatory prepayments of the Term Loans in
accordance with Sections 2.12, 2.13 and 2.14, as applicable; (y) the Term
Loans (other than the Additional Term Loans), together with all other amounts
owed hereunder with respect thereto, shall, in any event be paid in full no
later than the Maturity Date and (z) the Additional Term Loans, together
with all other amounts owed hereunder with respect thereto, shall, in any event
be paid in full no later than the Additional Term Loan Maturity Date.


 


2.12        Voluntary
Prepayments.


 


(a)           Voluntary
Prepayments.


 


(i)             Any
time and from time to time:


 


(1)       with respect
to Base Rate Loans, Borrower may prepay any such Loans on any Business Day in
whole or in part, in an aggregate minimum amount of $2,000,000 and integral
multiples of $500,000 in excess of that amount; and


 


(2)       with respect
to Eurodollar Rate Loans, Borrower may prepay any such Loans on any Business
Day in whole or in part in an aggregate minimum amount of $2,000,000 and
integral multiples of $500,000 in excess of that amount;


 


(ii)          All
such prepayments shall be made:


 


(1)       upon not less
than one (1) Business Day’s prior written or telephonic notice in the case
of Base Rate Loans; and


 


(2)       upon not less
than three (3) Business Days’ prior written or telephonic notice in the
case of Eurodollar Rate Loans;


 


in each case given to Administrative Agent by 12:00 p.m.
(New York City time) on the date required and, if given by telephone, promptly
confirmed in writing to Administrative Agent (and


 


39

















 


Administrative Agent will promptly notify each
Lender).  Upon the giving of any such
notice (which notice shall be irrevocable), the principal amount of the Loans
specified in such notice shall become due and payable on the prepayment date specified
therein.  Any such voluntary prepayment
shall be applied as specified in Section 2.14(a).


 


2.13        Mandatory
Prepayments.


 


(a)           Asset
Sales.  No later than the first
Business Day following the date of receipt by Holdings or any of its
Subsidiaries of any Net Asset Sale Proceeds, Company shall offer to prepay the
Loans as set forth in Sections 2.14(b) and 2.14(d) in an aggregate
amount equal to such Net Asset Sale Proceeds; provided, so long as no
Default or Event of Default shall have occurred and be continuing on or as of
such first Business Day, Company shall have the option (exercisable upon
written notice thereof to Administrative Agent on or prior to such first
Business Day), directly or through one or more of its Subsidiaries, to invest
Net Asset Sale Proceeds within three hundred and sixty five (365) days of
receipt thereof in long-term productive assets of the general type used in the
business of Company and its Subsidiaries or to make capital expenditures in
connection with improvement of capital assets of Company or any of its Subsidiaries
(it being expressly agreed that any Net Asset Sale Proceeds not so invested
shall be immediately offered to be applied as set forth in Sections 2.14(b) and
2.14(d)); provided, further, pending any such investment at any
time that Net Asset Sale Proceeds not so invested shall equal or exceed
$5,000,000 in the aggregate, an amount equal to all such Net Asset Sale
Proceeds shall be deposited by Company, unless waived by Administrative Agent
in its sole discretion, in a deposit account maintained at Administrative Agent
as part of the Collateral (it being understood that, (x) so long as no
Default or Event of Default shall have occurred and be continuing,
Administrative Agent shall release or consent to the release of such funds to
Company upon delivery to Administrative Agent of a certificate of an officer of
Company certifying that such funds shall, upon release of such funds, be
applied in accordance this Section 2.13(a) and (y) to the extent
such amounts are not applied in accordance with, and at the times required by,
this Section 2.13(a), all such funds then held by Administrative Agent
shall be immediately applied by Administrative Agent, or immediately paid over
to Administrative Agent to be applied, as set forth in Section 2.14(b)); provided,
further, that notwithstanding the foregoing, the Net Asset Sale Proceeds
from any sale leaseback transaction permitted pursuant to Section 6.1(n) hereof
shall be offered to be applied as set forth in Sections 2.15(b) and
2.14(d).


 


(b)           Insurance/Condemnation
Proceeds.  No later than the first
Business Day following the date of receipt by Holdings or any of its
Subsidiaries, or Administrative Agent as loss payee, of any Net
Insurance/Condemnation Proceeds, Company shall offer to prepay the Loans as set
forth in Sections 2.14(b) and 2.14(d) in an aggregate amount equal to
such Net Insurance/Condemnation Proceeds; provided, so long as no
Default or Event of Default shall have occurred and be continuing on or as of
such first Business Day, Company shall have the option (exercisable upon
written notice thereof to Administrative Agent on or prior to such first
Business Day), directly or through one or more of its Subsidiaries to invest
such Net Insurance/Condemnation Proceeds within three hundred and sixty five
(365) days of receipt thereof in long-term productive assets of the general
type used in the business of Holdings and its


 


40

















 


Subsidiaries, which investment may include the repair,
restoration or replacement of the applicable assets thereof (it being expressly
agreed that any Net Insurance/Condemnation Proceeds not so invested shall
immediately be offered to be applied as set forth in Sections 2.14(b) and
2.14(d)); provided, further, pending any such investment at any
time that Net Insurance/Condemnation Proceeds not so invested shall equal or
exceed $5,000,000 in the aggregate, an amount equal to all such Net
Insurance/Condemnation Proceeds shall be deposited by Company, unless waived by
Administrative Agent in its sole discretion, in a deposit account maintained at
Administrative Agent (it being understood that, (x) so long as no Default
or Event of Default shall have occurred and be continuing, Administrative Agent
shall release or consent to the release of such funds to Company upon delivery
to Administrative Agent of a certificate of an officer of Company certifying
that such funds shall, upon release of such funds, be applied in accordance
this Section 2.13(b) and (y) to the extent such amounts are not
applied in accordance with, and at the times required by, this Section 2.13(b),
all such funds then held by Administrative Agent shall be immediately applied
by Administrative Agent, or immediately paid over to Administrative Agent to be
applied, as set forth in Section 2.14(b)).


 


(c)           Issuance
of Debt.  No later than the first
Business Day following the date of receipt by Holdings or any of its
Subsidiaries of any Cash proceeds from the incurrence of any Indebtedness of
Holdings or any of its Subsidiaries (other than with respect to any
Indebtedness permitted to be incurred pursuant to Section 6.1), Company
shall offer to prepay the Loans as set forth in Sections 2.14(b) and 2.14(d) in
an aggregate amount equal to 100% of such proceeds, net of underwriting
discounts and commissions and other reasonable costs and expenses associated
therewith, including reasonable legal fees and expenses.


 


(d)           Consolidated
Excess Cash Flow.  In the event that
there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing
with Fiscal Year 2008), Company shall, no later than one hundred fifty (150)
days after the end of such Fiscal Year, offer to prepay the Loans as set forth
in Sections 2.14(b) and 2.14(d) in an aggregate amount equal to 50%
of such Consolidated Excess Cash Flow.


 


(e)           Prepayment
Certificate.  Concurrently with any
prepayment of the Loans pursuant to Sections 2.13(a) through 2.13(d),
Company shall deliver to Administrative Agent a certificate of an Authorized
Officer demonstrating the calculation of the amount of the applicable net
proceeds or Consolidated Excess Cash Flow as the case may be.  In the event that Company shall subsequently
determine that the actual amount received exceeded the amount set forth in such
certificate, Company shall promptly make an additional prepayment of the Loans
and Company shall concurrently therewith deliver to Administrative Agent a
certificate of an Authorized Officer demonstrating the derivation of such
excess.


 


2.14        Application
of Prepayments/Reductions.


 


(a)           Application
of Voluntary Prepayments.  Any
prepayment of any Loan pursuant to Section 2.12 shall be applied to prepay
Term Loans on a pro rata basis to the remaining scheduled Installments of
principal of the Term Loans.


 


41

















 


(b)           Application
of Mandatory Prepayments.  Subject to
Section 2.14(d), any prepayment of any Loan pursuant to Section 2.13
shall be applied to prepay Term Loans on a pro rata basis to the remaining
scheduled Installments of principal of the Term Loans.


 


(c)           Application
of Prepayments of Loans to Base Rate Loans and Eurodollar Rate Loans.  Considering each Class of Loans being
prepaid separately, any prepayment thereof shall be applied first to Base Rate
Loans to the full extent thereof before application to Eurodollar Rate Loans,
in each case in a manner which minimizes the amount of any payments required to
be made by Borrower pursuant to Section 2.17(c).


 


(d)           Lender
Opt-out.  With respect to any
prepayment of Term Loans pursuant to Section 2.13, any Lender, at its
option, may elect not to accept such prepayment.  Upon the dates set forth in Section 2.13
for any such prepayment of Term Loans, the Borrower shall notify the
Administrative Agent of the amount that is available to prepay the Term Loans
(the “Prepayment
Amount”). 
Promptly after the date of receipt of such notice, the Administrative
Agent shall provide written notice (the “First Offer”)
to the Lenders of the amount available to prepay the Term Loans.  Any Lender declining such prepayment (a “Declining Lender”) shall give written notice thereof to the Administrative
Agent by 11:00 a.m. no later than two (2) Business Days after the
date of such notice from the Administrative Agent.  On such date the Administrative Agent shall
then provide written notice (the “Second Offer”)
to the Lenders other than the Declining Lenders (such Lenders being the “Accepting Lenders”) of the additional amount available (due to such Declining
Lenders’ declining such prepayment) to prepay Term Loans owing to such
Accepting Lenders, such available amount to be allocated on a pro rata basis
among the Accepting Lenders that accept the Second Offer.  Any Lender declining prepayment pursuant to
such Second Offer shall give written notice thereof to the Administrative Agent
by 11:00 a.m. no later than one (1) Business Day after the date of
such notice of a Second Offer.  The
Borrower shall prepay the Loans as set forth in Section 2.13 within one
Business Day after its receipt of notice from the Administrative Agent of the
aggregate amount of such prepayment. 
Amounts remaining after the allocation of accepted amounts with respect
to the First Offer and the Second Offer to Accepting Lenders  shall
be retained by the Borrower.


 


2.15        General
Provisions Regarding Payments.


 


(a)           All
payments by Borrower of principal, interest, fees and other Obligations shall
be made in Dollars in same day funds, without defense, setoff or counterclaim,
free of any restriction or condition, and delivered to Administrative Agent not
later than 12:00 p.m. (New York City time) on the date due at
Administrative Agent’s Principal Office for the account of Lenders; funds
received by Administrative Agent after that time on such due date shall be
deemed to have been paid by Borrower on the next succeeding Business Day, at
Administrative Agent’s sole discretion.


 


42














 


(b)                                 All payments in respect of the principal amount of any Loan
shall be accompanied by payment of accrued interest on the principal amount
being repaid or prepaid.


 


(c)                                  Administrative Agent shall promptly distribute to each Lender
at such address as such Lender shall indicate in writing, such Lender’s
applicable Pro Rata Share of all payments and prepayments of principal and
interest due hereunder, together with all other amounts due thereto, including,
without limitation, all fees payable with respect thereto, to the extent
received by Administrative Agent.


 


(d)                                 Notwithstanding the foregoing provisions hereof, if any
Conversion/Continuation Notice is withdrawn as to any Affected Lender or if any
Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any
Eurodollar Rate Loans, Administrative Agent shall give effect thereto in
apportioning payments received thereafter.


 


(e)                                  Subject to the provisos set forth in the definition of “Interest
Period,” whenever any payment to be made hereunder shall be stated to be due on
a day that is not a Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time shall be included in the
computation of the payment of interest hereunder.


 


(f)                                    Administrative Agent, at its sole discretion, shall deem any
payment by or on behalf of Borrower hereunder that is not made in same day
funds prior to 12:00 p.m. (New York City time) to be a non-conforming
payment.  Any such payment shall not be
deemed to have been received by Administrative Agent until the later of (i) the
time such funds become available funds, and (ii) the applicable next
Business Day.  Administrative Agent shall
give prompt telephonic notice to Borrower and each applicable Lender (confirmed
in writing) if any payment is non-conforming. 
Any non-conforming payment may constitute or become a Default or Event
of Default in accordance with the terms of Section 8.1(a).  Interest shall continue to accrue on any
principal as to which a non-conforming payment is made until such funds become
available funds (but in no event less than the period from the date of such
payment to the next succeeding applicable Business Day) at the rate determined
pursuant to Section 2.9 from the date such amount was due and payable
until the date such amount is paid in full.


 


(g)                                 If an Event of Default shall have occurred and not otherwise
been waived, and the maturity of the Obligations shall have been accelerated
pursuant to Section 8.1, all payments or proceeds received by Agents
hereunder in respect of any of the Obligations, shall be applied in accordance
with the application arrangements described in Section 7.2 of the Pledge
and Security Agreement.


 


(h)                                 It is confirmed and acknowledged that no Permitted Loan
Purchase (and the purchase price paid to any Lender in consideration of the
purchase of such Lender’s Loans in connection therewith) and no cancellation or
retirement of Loans acquired in any Permitted 


 


43

















 


Loan Purchase shall constitute a payment or reduction of
Loans or Obligations for purposes of this Section 2.15 or any other
provision of this Agreement.


 


2.16                        Ratable Sharing.  Lenders hereby agree among themselves that,
except as otherwise provided in the Collateral Documents with respect to
amounts realized from the exercise of rights with respect to Liens on the
Collateral, if any of them shall, whether by voluntary payment (other than a
voluntary prepayment of Loans made and applied in accordance with the terms
hereof), through the exercise of any right of set-off or banker’s lien, by
counterclaim or cross action or by the enforcement of any right under the
Credit Documents or otherwise, or as adequate protection of a deposit treated
as cash collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, fees and other
amounts then due and owing to such Lender hereunder or under the other Credit
Documents (collectively, the “Aggregate Amounts Due” to such Lender) which is
greater than the proportion received by any other Lender in respect of the
Aggregate Amounts Due to such other Lender, then the Lender receiving such
proportionately greater payment shall (a) notify Administrative Agent and
each other Lender of the receipt of such payment and (b) apply a portion
of such payment to purchase participations (which it shall be deemed to have
purchased from each seller of a participation simultaneously upon the receipt
by such seller of its portion of such payment) in the Aggregate Amounts Due to
the other Lenders so that all such recoveries of Aggregate Amounts Due shall be
shared by all Lenders in proportion to the Aggregate Amounts Due to them; provided,
if all or part of such proportionately greater payment received by such
purchasing Lender is thereafter recovered from such Lender upon the bankruptcy
or reorganization of Borrower or otherwise, those purchases shall be rescinded
and the purchase prices paid for such participations shall be returned to such
purchasing Lender ratably to the extent of such recovery, but without
interest.  Borrower expressly consents to
the foregoing arrangement and agrees that any holder of a participation so
purchased may, so long as an Event of Default has occurred and is continuing,
exercise any and all rights of banker’s lien, set-off or counterclaim with
respect to any and all monies owing by Borrower to that holder with respect
thereto as fully as if that holder were owed the amount of the participation
held by that holder.


 


2.17                        Making or Maintaining Eurodollar
Rate Loans.


 


(a)                                  Inability to Determine Applicable Interest Rate.  In the event that
Administrative Agent shall have determined (which determination shall be final
and conclusive and binding upon all parties hereto), on any Interest Rate
Determination Date with respect to any Eurodollar Rate Loans, that by reason of
circumstances affecting the London interbank market adequate and fair means do
not exist for ascertaining the interest rate applicable to such Loans on the
basis provided for in the definition of Adjusted Eurodollar Rate,
Administrative Agent shall on such date give notice (by telefacsimile or by
telephone confirmed in writing) to Borrower and each Lender of such
determination, whereupon (i) no Loans may be made as, or converted to,
Eurodollar Rate Loans until such time as Administrative Agent notifies Borrower
and Lenders that the circumstances giving rise to such notice no longer exist,
and (ii) any Funding Notice or Conversion/Continuation Notice given by
Borrower with respect to the 


 


44

















 


Loans in respect of which such determination was made shall
be deemed to be rescinded by Borrower.


 


(b)                                 Illegality or Impracticability of Eurodollar Rate Loans.  In the event that on
any date any Lender shall have determined (which determination shall be final
and conclusive and binding upon all parties hereto but shall be made only after
consultation with Borrower and Administrative Agent) that the making,
maintaining or continuation of its Eurodollar Rate Loans (i) has become
unlawful as a result of compliance by such Lender in good faith with any law,
treaty, governmental rule, regulation, guideline or order (or would conflict
with any such treaty, governmental rule, regulation, guideline or order not
having the force of law even though the failure to comply therewith would not
be unlawful), or (ii) has become impracticable, as a result of
contingencies occurring after the date hereof which materially and adversely
affect the London interbank market or the position of such Lender in that
market, then, and in any such event, such Lender shall be an “Affected
Lender” and it
shall on that day give notice (by telefacsimile or by telephone confirmed in
writing) to Borrower and Administrative Agent of such determination (which
notice Administrative Agent shall promptly transmit to each other Lender).  Thereafter (1) the obligation of the
Affected Lender to make Loans as, or to convert Loans to, Eurodollar Rate Loans
shall be suspended until such notice shall be withdrawn by the Affected Lender,
(2) to the extent such determination by the Affected Lender relates to a
Eurodollar Rate Loan then being requested by Borrower pursuant to a Funding
Notice or a Conversion/Continuation Notice, the Affected Lender shall make such
Loan as (or continue such Loan as or convert such Loan to, as the case may be)
a Base Rate Loan, (3) the Affected Lender’s obligation to maintain its
outstanding Eurodollar Rate Loans (the “Affected Loans”) shall be terminated at the earlier to occur of the
expiration of the Interest Period then in effect with respect to the Affected
Loans or when required by law, and (4) the Affected Loans shall
automatically convert into Base Rate Loans on the date of such
termination.  Notwithstanding the
foregoing, to the extent a determination by an Affected Lender as described
above relates to a Eurodollar Rate Loan then being requested by Borrower
pursuant to a Funding Notice or a Conversion/Continuation Notice, Borrower
shall have the option, subject to the provisions of Section 2.17(c), to
rescind such Funding Notice or Conversion/Continuation Notice as to all Lenders
by giving notice (by telefacsimile or by telephone confirmed in writing) to
Administrative Agent of such rescission on the date on which the Affected
Lender gives notice of its determination as described above (which notice of
rescission Administrative Agent shall promptly transmit to each other
Lender).  Except as provided in the
immediately preceding sentence, nothing in this Section 2.17(b) shall
affect the obligation of any Lender other than an Affected Lender to make or
maintain Loans as, or to convert Loans to, Eurodollar Rate Loans in accordance
with the terms hereof.


 


(c)                                  Compensation for Breakage or Non-Commencement of Interest
Periods. 
Borrower shall compensate each Lender, upon written request by such
Lender (which request shall set forth the basis for requesting such amounts),
for all reasonable losses, expenses and liabilities (including any interest
paid by such Lender to Lenders of funds borrowed by it to make or carry its
Eurodollar Rate Loans and any loss, expense or liability sustained by such
Lender in connection with the liquidation or re-employment of such funds but
excluding loss 


 


45

















 


of anticipated profits) which such Lender may sustain: (i) if
for any reason (other than a default by such Lender) a borrowing of any
Eurodollar Rate Loan does not occur on a date specified therefor in a Funding
Notice or a telephonic request for borrowing, or a conversion to or
continuation of any Eurodollar Rate Loan does not occur on a date specified
therefor in a Conversion/Continuation Notice or a telephonic request for
conversion or continuation; (ii) if any prepayment or other principal
payment of, or any conversion of, any of its Eurodollar Rate Loans occurs on a
date prior to the last day of an Interest Period applicable to that Loan; or (iii) if
any prepayment of any of its Eurodollar Rate Loans is not made on any date specified
in a notice of prepayment given by Borrower.


 


(d)                                 Booking of Eurodollar Rate Loans.  Any Lender may make,
carry or transfer Eurodollar Rate Loans at, to, or for the account of any of
its branch offices or the office of an Affiliate of such Lender.


 


(e)                                  Assumptions Concerning Funding of Eurodollar Rate Loans.  Calculation of all
amounts payable to a Lender under this Section 2.17 and under Section 2.18
shall be made as though such Lender had actually funded each of its relevant
Eurodollar Rate Loans through the purchase of a Eurodollar deposit bearing
interest at the rate obtained pursuant to clause (i) of the definition of
Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar
Rate Loan and having a maturity comparable to the relevant Interest Period and
through the transfer of such Eurodollar deposit from an offshore office of such
Lender to a domestic office of such Lender in the United States of America; provided,
however, each Lender may fund each of its Eurodollar Rate Loans in any
manner it sees fit and the foregoing assumptions shall be utilized only for the
purposes of calculating amounts payable under this Section 2.17 and under Section 2.18.


 


2.18                        Increased Costs; Capital
Adequacy.


 


(a)                                  Compensation For Increased Costs and Taxes.  Subject to the
provisions of Section 2.20 (which shall be controlling with respect to the
matters covered thereby), in the event that any Lender shall determine (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto) that any law, treaty or governmental rule, regulation
or order, or any change therein or in the interpretation, administration or
application thereof (including the introduction of any new law, treaty or
governmental rule, regulation or order), or any determination of a court or
Governmental Authority, in each case that becomes effective after the Closing
Date, or compliance by such Lender with any guideline, request or directive
issued or made after the Closing Date by any central bank, other Governmental
Authority or quasi-governmental authority (whether or not having the force of
law) (any such event, a “Change in Law”): (i) subjects such Lender (or its applicable lending
office) to any additional Tax with respect to this Agreement or any of the
other Credit Documents or any of its obligations hereunder or thereunder or any
payments to such Lender (or its applicable lending office) of principal,
interest, fees or any other amount payable hereunder; (ii) imposes,
modifies or holds applicable any reserve (including any marginal, emergency,
supplemental, special or other reserve), special deposit, compulsory loan, FDIC



 


46

















 


insurance or similar requirement against assets held by, or deposits
or other liabilities in or for the account of, or advances or loans by, or
other credit extended by, or any other acquisition of funds by, any office of
such Lender (other than any such reserve or other requirements with respect to
Eurodollar Rate Loans that are reflected in the definition of Adjusted
Eurodollar Rate); or (iii) imposes any other condition (other than with
respect to a Tax matter) on or affecting such Lender (or its applicable lending
office) or its obligations hereunder or the London interbank market; and the
result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining Loans hereunder or to reduce any amount
received or receivable by such Lender (or its applicable lending office) with
respect thereto; then, in any such case, Borrower shall promptly pay to such
Lender, upon receipt of the statement referred to in the next sentence, such
additional amount or amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender in its
sole discretion shall determine) as may be necessary to compensate such Lender
for any such increased cost or reduction in amounts received or receivable
hereunder.  Such Lender shall deliver to
Borrower (with a copy to Administrative Agent) a written statement, setting
forth in reasonable detail the basis for calculating the additional amounts
owed to such Lender under this Section 2.18(a), which statement shall be
conclusive and binding upon all parties hereto absent manifest error.


 


(b)                                 Capital Adequacy Adjustment.  In the event that any Lender shall have
determined that any Change in Law regarding capital adequacy has or would have
the effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of, or with reference to,
such Lender’s Loans or participations therein or other obligations hereunder
with respect to the Loans to a level below that which such Lender or such
controlling corporation could have achieved but for such adoption,
effectiveness, phase-in, applicability, change or compliance (taking into
consideration the policies of such Lender or such controlling corporation with
regard to capital adequacy), then from time to time, within five (5) Business
Days after receipt by Borrower from such Lender of the statement referred to in
the next sentence, Borrower shall pay to such Lender such additional amount or
amounts as will compensate such Lender or such controlling corporation on an
after-tax basis for such reduction. Such Lender shall deliver to Borrower (with
a copy to Administrative Agent) a written statement, setting forth in
reasonable detail the basis for calculating the additional amounts owed to
Lender under this Section 2.18(b), which statement shall be conclusive and
binding upon all parties hereto absent manifest error.


 


2.19                        Taxes; Withholding, etc.


 


(a)                                  Payments to Be Free and Clear.  All sums payable by any Credit Party
hereunder and under the other Credit Documents shall (except to the extent
required by law) be paid free and clear of, and without any deduction or
withholding on account of, any Tax imposed, levied, collected, withheld or
assessed by or within the United States of America or any political subdivision
in or of the United States of America or any other jurisdiction from or to
which a payment is made by or on behalf of any Credit Party or by any
federation or 


 


47

















 


organization of which the United States of America or any
such jurisdiction is a member at the time of payment.


 


(b)                                 Withholding of Taxes.  If any Credit Party or any other Person is
required by law to make any deduction or withholding on account of any Tax from
any sum paid or payable by any Credit Party to Administrative Agent or any
Lender under any of the Credit Documents: (i) Borrower shall notify
Administrative Agent of any such requirement or any change in any such
requirement as soon as Borrower becomes aware of it; (ii) Borrower shall
pay any such Tax before the date on which penalties attach thereto, such
payment to be made (if the liability to pay is imposed on any Credit Party) for
its own account or (if that liability is imposed on Administrative Agent or
such Lender, as the case may be) on behalf of and in the name of Administrative
Agent or such Lender; (iii) the sum payable by such Credit Party in
respect of which the relevant deduction, withholding or payment is required
shall be increased to the extent necessary to ensure that, after the making of
that deduction, withholding or payment, Administrative Agent or such Lender, as
the case may be, receives on the due date a net sum equal to what it would have
received had no such deduction, withholding or payment been required or made;
and (iv) within thirty (30) days after paying any sum from which it is
required by law to make any deduction or withholding, and within thirty (30)
days after the due date of payment of any Tax which it is required by clause (ii) above
to pay, Borrower shall deliver to Administrative Agent evidence satisfactory to
the other affected parties of such deduction, withholding or payment and of the
remittance thereof to the relevant taxing or other authority; provided, no such
additional amount shall be required to be paid to any Lender under clause (iii) above
except to the extent that any change after the date hereof (in the case of each
Lender listed on the signature pages hereof on the Closing Date) or after
the effective date of the Assignment Agreement or Term Loan Joinder Agreement
pursuant to which such Lender became a Lender (in the case of each other
Lender) in any such requirement for a deduction, withholding or payment as is
mentioned therein shall result in an increase in the rate of such deduction,
withholding or payment from that in effect at the date hereof or at the date of
such Term Loan Joinder Agreement or Assignment Agreement, as the case may be,
in respect of payments to such Lender.


 


(c)                                  Evidence of Exemption From U.S. Withholding Tax.  Each Lender that is
not a United States Person (as such term is defined in Section 7701(a)(30)
of the Internal Revenue Code) for U.S. federal income tax purposes (a “Non-US
Lender”) shall
deliver to Administrative Agent for transmission to Borrower, on or prior to
the Closing Date (in the case of each Lender listed on the signature pages hereof
on the Closing Date) or on or prior to the date of the Assignment Agreement or
Term Loan Joinder Agreement pursuant to which it becomes a Lender (in the case
of each other Lender), and at such other times as may be necessary in the
determination of Borrower or Administrative Agent (each in the reasonable
exercise of its discretion), (i) two original copies of Internal Revenue
Service Form W-8BEN or W-8ECI (or any successor forms), properly completed
and duly executed by such Lender, and such other documentation required under
the Internal Revenue Code and reasonably requested by Borrower to establish
that such Lender is not subject to deduction or withholding of United States
federal income tax with respect to any payments to such Lender of principal,
interest, fees or other amounts payable under any of the Credit Documents, or (ii) if
such 


 


48

















 


Lender is not a “bank” or other Person described in Section 881(c)(3) of
the Internal Revenue Code and cannot deliver either Internal Revenue Service Form W-8ECI
pursuant to clause (i) above, a Certificate re Non-Bank Status together
with two original copies of Internal Revenue Service Form W-8BEN (or any
successor form), properly completed and duly executed by such Lender, and such
other documentation required under the Internal Revenue Code and reasonably
requested by Borrower to establish that such Lender is not subject to deduction
or withholding of United States federal income tax with respect to any payments
to such Lender of interest payable under any of the Credit Documents.  Each Lender required to deliver any forms,
certificates or other evidence with respect to United States federal income tax
withholding matters pursuant to this Section 2.19(c) hereby agrees,
from time to time after the initial delivery by such Lender of such forms,
certificates or other evidence, whenever a lapse in time or change in
circumstances renders such forms, certificates or other evidence obsolete or
inaccurate in any material respect, that such Lender shall promptly deliver to
Administrative Agent for transmission to Borrower two new original copies of
Internal Revenue Service Form W-8BEN or W-8ECI, or a Certificate re
Non-Bank Status and two original copies of Internal Revenue Service Form W-8BEN
(or any successor form), as the case may be, properly completed and duly
executed by such Lender, and such other documentation required under the
Internal Revenue Code and reasonably requested by Borrower to confirm or
establish that such Lender is not subject to deduction or withholding of United
States federal income tax with respect to payments to such Lender under the
Credit Documents, or notify Administrative Agent and Borrower of its inability
to deliver any such forms, certificates or other evidence.  Borrower shall not be required to pay any
additional amount to any Non-US Lender under Section 2.19(b)(iii) if
such Lender shall have failed (1) to deliver the forms, certificates or
other evidence referred to in the second sentence of this Section 2.19(c),
or (2) to notify Administrative Agent and Borrower of its inability to
deliver any such forms, certificates or other evidence, as the case may be; provided,
if such Lender shall have satisfied the requirements of the first sentence of
this Section 2.19(c) on the Closing Date, or on the date of the
Assignment Agreement or Term Loan Joinder Agreement pursuant to which it became
a Lender, as applicable, nothing in this last sentence of Section 2.19(c) shall
relieve Borrower of its obligation to pay any additional amounts pursuant this Section 2.19
in the event that, as a result of any change in any applicable law, treaty or
governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender is not subject to withholding as
described herein.


 


2.20                        Obligation to Mitigate.  Each Lender agrees that, as promptly as
practicable after the officer of such Lender responsible for administering its
Loans, as the case may be, becomes aware of the occurrence of an event or the
existence of a condition that would cause such Lender to become an Affected
Lender or that would entitle such Lender to receive payments under Section 2.17,
2.18 or 2.19, it will, to the extent not inconsistent with the internal
policies of such Lender and any applicable legal or regulatory restrictions,
use reasonable efforts to (a) make, issue, fund or maintain its Credit
Extensions, including any Affected Loans, through another office of such
Lender, or (b) take such other measures as such Lender may deem reasonable,
if as a result thereof the circumstances which would cause such Lender to be an
Affected Lender would cease to exist or the additional amounts which would
otherwise be required to be paid to such Lender pursuant to Section 2.17,
2.18 or 2.19 would be materially reduced and if, as 


 


49

















 


determined by such Lender in its sole discretion, the making, issuing,
funding or maintaining of such Loans through such other office or in accordance
with such other measures, as the case may be, would not otherwise adversely
affect such Loans or the interests of such Lender; provided, such Lender
will not be obligated to utilize such other office pursuant to this Section 2.20
unless Borrower agrees to pay all incremental expenses incurred by such Lender
as a result of utilizing such other office as described in clause (i) above.  A certificate as to the amount of any such
expenses payable by Borrower pursuant to this Section 2.20 (setting forth
in reasonable detail the basis for requesting such amount) submitted by such
Lender to Borrower (with a copy to Administrative Agent) shall be conclusive
absent manifest error.


 


2.21                        Call Protection.  In the event that, after the
Second Amendment Effective Date, but on or prior to the first anniversary of
the Second Amendment Effective Date, any Lender receives (x) a prepayment
of principal of the Loans pursuant to Section 2.12 or 2.13(c) or (y) a
repayment of principal amount of the Loans as a result of the mandatory
assignment of such Loans in the circumstances described in Section 2.22
following the failure of such Lender to consent to an amendment of this
Agreement that would have the effect of reducing any of the Applicable Margin
with respect to such Loans, then in each case, at the time thereof, the
Borrower shall pay to such Lender a prepayment premium equal to 1.00 % of the
principal amount of such prepayment or repayment.


 


2.22                        Removal or Replacement of a
Lender.  Anything contained herein to
the contrary notwithstanding, in the event that: (a)(i) any Lender (an “Increased-Cost Lender”) shall give
notice to Representative that such Lender is an Affected Lender or that such
Lender is entitled to receive payments under Section 2.17, 2.18 or 2.19, (ii) the
circumstances which have caused such Lender to be an Affected Lender or which
entitle such Lender to receive such payments shall remain in effect, and (iii) such
Lender shall fail to withdraw such notice within five (5) Business Days
after Borrower’s request for such withdrawal; or (b) in connection with
any proposed amendment, modification, termination, waiver or consent with
respect to any of the provisions hereof as contemplated by Section 10.5(b),
the consent of Requisite Lenders shall have been obtained but the consent of
one or more of such other Lenders (each a “Non-Consenting Lender”) whose consent is required
shall not have been obtained; then, with respect to each such Increased-Cost
Lender or Non-Consenting Lender (the “Terminated Lender”), Borrower may, by giving
written notice to Administrative Agent and any Terminated Lender of its
election to do so, or Administrative Agent may, elect to cause such Terminated
Lender (and such Terminated Lender hereby irrevocably agrees) to assign its
outstanding Loans, if any, in full to one or more Eligible Assignees
satisfactory to Administrative Agent (each a “Replacement Lender”) in accordance with the
provisions of Section 10.6 and Terminated Lender shall pay any fees
payable thereunder in connection with such assignment; provided, (1) on
the date of such assignment, the Replacement Lender shall pay to Terminated
Lender an amount equal to the sum of (A) an amount equal to the principal
of, and all accrued interest on, all outstanding Loans of the Terminated
Lender, (B) an amount equal to all unreimbursed drawings that have been
funded by such Terminated Lender, together with all then unpaid interest with
respect thereto at such time and (C) an amount equal to all accrued, but
theretofore unpaid fees owing to such Terminated Lender pursuant to Section 2.10;
(2) on the date of such assignment, Borrower shall pay any amounts payable
to such Terminated Lender pursuant to 


 


50

















 


Section 2.17(c), 2.18 or 2.19, or otherwise as if it were a prepayment;
and (3) in the event such Terminated Lender is a Non-Consenting Lender,
each Replacement Lender shall consent, at the time of such assignment, to each
matter in respect of which such Terminated Lender was a Non-Consenting
Lender.  Upon the prepayment of all
amounts owing to any Terminated Lender, if any, such Terminated Lender shall no
longer constitute a “Lender” for purposes hereof; provided, any rights
of such Terminated Lender to indemnification hereunder shall survive as to such
Terminated Lender.


 


SECTION 3.                            CONDITIONS PRECEDENT


 


3.1                               Closing
Date.  The obligation of any Lender to
make a Credit Extension on the Closing Date is subject to the satisfaction, or
waiver in accordance with Section 10.5, of the following conditions on or
before the Closing Date:


 


(a)                                  Credit Documents.  Administrative Agent shall have received (i) sufficient
copies of this Agreement, executed and delivered by each applicable Credit
Party, the Agents and Lenders having Term Loan Commitments hereunder and, (ii) Notes,
if any, requested by any Lender pursuant to Section 2.6(c) in
connection with its Term Loan Commitments, executed and delivered by Borrower.


 


(b)                                 Organizational Documents; Incumbency.  Administrative Agent
shall have received (i) copies of each Organizational Document for each
Credit Party, certified as of a recent date prior to the Closing Date by the
appropriate governmental official or, as applicable, by an officer of such
Credit Party; (ii) signature and incumbency certificates of the officers
of each Credit Party executing the Credit Documents to which it is a party; (iii) resolutions
of the Board of Directors or similar governing body of each Credit Party
approving and authorizing the execution, delivery and performance of this
Agreement and the other Credit Documents to which it is a party, certified as
of the Closing Date by its secretary or an assistant secretary as being in full
force and effect without modification or amendment; (iv) a good standing
certificate from the applicable Governmental Authority of each Credit Party’s
jurisdiction of incorporation, organization or formation and in each
jurisdiction in which it is qualified as a foreign corporation or other entity
to do business, each dated a recent date prior to the Closing Date; and (v) such
other documents as Administrative Agent may reasonably request.


 


(c)                                  Governmental Authorizations and Consents.


 


(i)             Each
Credit Party shall have obtained all Governmental Authorizations and all
consents of other Persons, in each case that are necessary or 


 


51

















 


advisable in connection with the transactions contemplated
under this Agreement and each of the foregoing shall be in full force and
effect and in form and substance reasonably satisfactory to Administrative
Agent.


 


(ii)          Each
of the Lenders shall have received, at least five (5) Business Days in
advance of the Closing Date, all documentation and other information required
by Governmental Authorities under applicable “know-your-customer” and
anti-money laundering rules and regulations, including, without
limitation, as required by the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT
ACT) Act of 2001.


 


(d)                                 Term Priority Collateral.  The Administrative Agent shall be satisfied
with the valid perfected First Priority security interest in favor of
Collateral Agent, for the benefit of Secured Parties, in the Term Priority
Collateral.


 


(e)                                  ABL Priority Collateral.  The Administrative Agent shall be satisfied
with the valid perfected Second Priority security interest in favor of
Collateral Agent, for the benefit of Secured Parties, in the ABL Priority
Collateral of each Credit Party.


 


(f)                                    Opinion of Counsel to Credit Parties.  Lenders and their respective
counsel shall have received originally executed copies of the favorable written
opinion of Gibson, Dunn & Crutcher LLP, counsel for Credit Parties, in
form and substance satisfactory to the Administrative Agent, dated as of the
Closing Date (and each Credit Party hereby instructs such counsel to deliver
such opinion to Agents and Lenders).


 


(g)                                 Fees.  Borrower shall have paid to Arranger and
Agents the fees and other amounts payable on the Closing Date referred to in Section 2.10.


 


(h)                                 Solvency Certificate.  On the Closing Date, Administrative Agent
shall have received a Solvency Certificate dated as of the Closing Date and
addressed to Administrative Agent and Lenders, in form, scope and substance
satisfactory to Administrative Agent, with appropriate attachments and
demonstrating that after giving effect to the transactions contemplated by the
Credit Documents and the Revolving Credit Documents, Borrower is and will be,
and Holdings and its Subsidiaries (on a consolidated basis) are and will be Solvent.


 


(i)                                     No Litigation.  There shall not exist any action, suit,
investigation, litigation or proceeding or other legal or regulatory
developments, pending or threatened in any 


 


52

















 


court or before any arbitrator or Governmental Authority
that, in the opinion of Administrative Agent, singly or in the aggregate, could
reasonably be expected to restrain, prevent or impose materially burdensome
conditions on the transactions contemplated by this Agreement or the other
Credit Documents.


 


(j)                                     No Material Adverse Effect. 
Since December 31, 2006, there shall not have occurred a material adverse effect upon the business, operations,
properties, assets or condition (financial or otherwise) of Company and its
Subsidiaries, taken as a whole.


 


(k)                                  Existing Credit Agreement
Prepayments.  The Administrative Agent shall be satisfied
that, concurrently with the borrowing of the Term Loans on the Closing Date,
the Existing Credit Agreement will be terminated, all Liens securing
obligations under the Existing Agreement will be released, and all obligations
under the Existing Credit Agreement repaid in full.


 


(l)                                     Completion of Proceedings.  All partnership, corporate and other
proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Administrative Agent and its counsel shall be satisfactory in
form and substance to Administrative Agent and such counsel, and Administrative
Agent and such counsel shall have received all such counterpart originals or
certified copies of such documents as Administrative Agent may reasonably
request.


 


(m)                               Revolving Credit Facility.  Borrower shall have entered into the
Revolving Credit Facility and the Revolving Credit Documents shall be
satisfactory to the Administrative Agent.


 


(n)                                 Blocked Account Agreement.  Enter into a Blocked Account Agreement with
respect to each Deposit Account of any Credit Party.


 


(o)                                 Closing Date Certificate.  The Administrative Agent shall have received
a certificate signed by the chief financial officer of the Borrower dated the
Closing Date, certifying (A) that the conditions specified in Section 3.1(a) have
been satisfied, (B) that the representations and warranties contained in Section 4
are true and correct and (C) that no event shall have occurred and be
continuing or would result from the consummation of the Credit Extensions on
the Closing Date that would constitute an Event of Default or a Default.


 


(p)                                 Funding Notice.  Administrative Agent shall have received a
fully executed and delivered Funding Notice.


 


53

















 


(q)                                 Representations and Warranties.  As of the Closing Date, the representations
and warranties contained herein and in the other Credit Documents shall be true
and correct in all material respects on and as of the Closing Date to the same
extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case such representations and warranties shall have been true and correct in
all material respects on and as of such earlier date.


 


(r)                                    Event of Default or a Default.  As of the Closing Date, no event shall have
occurred and be continuing or would result from the consummation of the Credit
Extensions that would constitute an Event of Default or a Default.


 


Each Lender, by delivering
its signature page to this Agreement on the Closing Date, shall be deemed
to have acknowledged receipt of, and consented to and approved, each Credit
Document and each other document required to be approved on the Closing Date.


 


3.2                               Notices.  Any Notice shall be executed by an Authorized
Officer in a writing delivered to Administrative Agent.  In lieu of delivering a Notice, Borrower may
give Administrative Agent telephonic notice by the required time of any
proposed borrowing, conversion/continuation, as the case may be; provided
each such notice shall be promptly confirmed in writing by delivery of the
applicable Notice to Administrative Agent on or before the applicable date of
borrowing, continuation/conversion. 
Neither Administrative Agent nor any Lender shall incur any liability to
Borrower in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized on behalf of Borrower or for
otherwise acting in good faith.


 


SECTION 4.                            REPRESENTATIONS AND
WARRANTIES


 


In order to induce Lenders to enter into this
Agreement and to make each Credit Extension to be made thereby, each Credit
Party represents and warrants to each Lender, on the Closing Date and on each
Credit Date, that the following statements are true and correct:


 


4.1                               Organization;
Requisite Power and Authority; Qualification.  Each of Holdings and its Subsidiaries (a) is
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization as identified in Schedule 4.1 (subject to
such changes as are permitted by Section 6.9), (b) has all requisite
power and authority to own and operate its properties, to carry on its business
as now conducted and as proposed to be conducted, to enter into the Credit
Documents to which it is a party and to carry out the transactions contemplated
thereby, and (c) is qualified to do business and in good standing in every
jurisdiction where its assets are located and wherever necessary to carry out
its business and operations, except in jurisdictions where the failure to be so
qualified or in good standing has not had, and could not be reasonably expected
to have, a Material Adverse Effect.


 


54














 


4.2                               Capital
Stock and Ownership.  The Capital
Stock of each of Holdings and its Subsidiaries has been duly authorized and
validly issued and is fully paid and non-assessable.  Except as set forth on Schedule 4.2, as of
the date hereof, there is no existing option, warrant, call, right, commitment
or other agreement to which Holdings or any of its Subsidiaries is a party
requiring, and there is no membership interest or other Capital Stock of
Holdings or any of its Subsidiaries outstanding which upon conversion or
exchange would require, the issuance by Holdings or any of its Subsidiaries of
any additional membership interests or other Capital Stock of Holdings or any
of its Subsidiaries or other Securities convertible into, exchangeable for or
evidencing the right to subscribe for or purchase, a membership interest or
other Capital Stock of Holdings or any of its Subsidiaries.  Schedule 4.2 correctly sets forth the
ownership interest of Holdings and each of its Subsidiaries in their respective
Subsidiaries as of the Closing Date.


 


4.3                               Due
Authorization.  The
execution, delivery and performance of the Credit Documents have been duly
authorized by all necessary action on the part of each Credit Party that is a
party thereto.


 


4.4                               No
Conflict.  The
execution, delivery and performance by Credit Parties of the Credit Documents
to which they are parties and the consummation of the transactions contemplated
by the Credit Documents do not and will not (a) violate any provision of
any law or any governmental rule or regulation applicable to Holdings or
any of its Subsidiaries, any of the Organizational Documents of Holdings or any
of its Subsidiaries; (b) violate any order, judgment or decree of any
court or other agency of government binding on Holdings or any of its Subsidiaries
except to the extent such violation could not be reasonably expected to have a
Material Adverse Effect; (c) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any
Contractual Obligation of Holdings or any of its Subsidiaries except to the
extent such violation could not reasonably be expected to have a Material
Adverse Effect; (d) result in or require the creation or imposition of any
Lien upon any of the properties or assets of Holdings or any of its
Subsidiaries (other than any Liens created under any of the Credit Documents in
favor of Collateral Agent, on behalf of Secured Parties); or (e) require
any approval of stockholders, members or partners or any approval or consent of
any Person under any Contractual Obligation of Holdings or any of its
Subsidiaries, except for such approvals or consents which will be obtained on
or before the Closing Date and disclosed in writing to Lenders.


 


4.5                               Governmental
Consents.  The
execution, delivery and performance by Credit Parties of the Credit Documents
to which they are parties and the consummation of the transactions contemplated
by the Credit Documents do not and will not require any registration with,
consent or approval of, or notice to, or other action to, with or by, any
Governmental Authority except to the extent obtained on or before the Closing
Date, and except for filings and recordings with respect to the Collateral made
or to be made, or otherwise delivered to Collateral Agent for filing and/or
recordation, as of the Closing Date.


 


4.6                               Binding
Obligation.  Each Credit
Document has been duly executed and delivered by each Credit Party that is a
party thereto and is the legally valid and binding 


 


55

















 


obligation of such Credit
Party, enforceable against such Credit Party in accordance with its respective
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors’ rights generally
or by equitable principles relating to enforceability.


 


4.7                               Financial
Condition.  Holdings has
heretofore delivered to Administrative Agent (a) the audited consolidated
balance sheet of Company and its Subsidiaries for the Fiscal Years ended December 31,
2004, December 31, 2005 and December 31, 2006, and the related
audited consolidated statements of income, stockholders’ equity and cash flows
of each of such companies for each such Fiscal Year then ended, together with
all related notes and schedules thereto, and (b) the unaudited
consolidated balance sheet of Company and its Subsidiaries for the three-month
period ended March 30, 2007 and the related unaudited consolidated
statements of income, stockholders’ equity and cash flows of the Company and
its Subsidiaries for such three-month period then ended, together with all
related notes and schedules thereto.  All
such statements of Company and its Subsidiaries were prepared in conformity
with GAAP and fairly present, in all material respects, the financial position
of the entities described in such financial statements as at the respective
dates thereof and the results of operations and cash flows of the entities
described therein for each of the periods then ended, subject, in the case of such
unaudited financial statements, to changes resulting from audit and normal
year-end adjustments and the absence of footnotes.  As of the Closing Date, neither Company nor
any of its Subsidiaries has any contingent liability or liability for taxes,
long-term lease or unusual forward or long-term commitment that is not
reflected in the foregoing financial statements or the notes thereto and which
in any such case is material in relation to the business, operations,
properties, assets, condition (financial or otherwise) or prospects of Company
and its Subsidiaries taken as a whole.


 


4.8                               Projections.  On and as of the Closing Date, the
projections of Holdings and its Subsidiaries for (x) the period Fiscal
Year 2007 through and including Fiscal Year 2013 and (y) the Fiscal
Quarters beginning with the second Fiscal Quarter of 2007 through and including
the fourth Fiscal Quarter of 2008 (collectively, the “Projections”) previously delivered to
Administrative Agent and the Lenders are based on good faith estimates and
assumptions made by the management of Holdings, it being recognized, however,
that projections as to future events are not to be viewed as facts and that
actual results during the period or periods covered by the Projections may
differ from the projected results and that the differences may be material.


 


4.9                               No Material
Adverse Change.  Since December 31,
2006, except as set forth in Schedule 4.9, no event, circumstance or change has
occurred that has caused or evidences, or could reasonably be expected to
cause, either in any case or in the aggregate, a Material Adverse Effect.


 


4.10                        No
Restricted Payments.  Neither
Holdings nor any of its Subsidiaries has directly or indirectly declared,
ordered, paid or made, or set apart any sum or property for, any Restricted
Payment or agreed to do so except as permitted pursuant to Section 6.5.


 


56

















 


4.11                        Litigation;
Adverse Facts.  Except as
set forth in Schedule 4.11 hereto,  there
are no Adverse Proceedings, individually or in the aggregate, that could
reasonably be expected to have a Material Adverse Effect.  Neither Holdings nor any of its Subsidiaries (a) is
in violation of any applicable laws (including Environmental Laws) that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, or (b) is subject to or in default with respect
to any final judgments, writs, injunctions, decrees, rules or regulations
of any court or any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.


 


4.12                        Payment of
Taxes.  Except as otherwise permitted
under Section 5.3, all tax returns and reports of Holdings and its
Subsidiaries required to be filed by any of them have been timely filed, and
all taxes shown on such tax returns to be due and payable and all assessments,
fees and other governmental charges upon Holdings and its Subsidiaries and upon
their respective properties, assets, income, businesses and franchises which
are due and payable have been paid when due and payable.  Neither Holdings nor any of its Subsidiaries
knows of any proposed tax assessment against Holdings or any of its
Subsidiaries other than those which are being actively contested by Holdings or
such Subsidiary in good faith and by appropriate proceedings and for which
reserves or other appropriate provisions, if any, as shall be required in
conformity with GAAP shall have been made or provided therefor.


 


4.13                        Properties.


 


(a)                                  Title.  Each of Holdings and its Subsidiaries has (i) good,
sufficient and legal title to (in the case of fee interests in real property), (ii) valid
leasehold interests in (in the case of leasehold interests in real or personal
property), and (iii) good title to (in the case of all other personal
property), all of their respective properties and assets reflected in the most
recent financial statements delivered to the Administrative Agent, in each case
except for assets disposed of (x) since the date of such financial
statements and prior to the Closing Date in the ordinary course of business or (y) as
otherwise permitted under Section 6.9 and except for such defects that
neither individually nor in the aggregate could reasonably be expected to have
a Material Adverse Effect.  Except as
permitted by this Agreement, all such properties and assets are free and clear
of Liens.


 


(b)                                 Real Estate.  As of the Closing Date, Schedule 4.13
contains a true, accurate and complete list of (i) all Real Estate Assets,
and (ii) all leases, subleases or assignments of leases (together with all
amendments, modifications, supplements, renewals or extensions of any thereof),
if any, affecting each Real Estate Asset of any Credit Party, regardless of
whether such Credit Party is the landlord or tenant (whether directly or as an
assignee or successor in interest) under such lease, sublease or
assignment.  Each agreement listed in
clause (ii) of the immediately preceding sentence is in full force and
effect and Holdings does not have knowledge of any default that has occurred
and is continuing thereunder, and each such agreement constitutes the legally
valid and binding obligation of each applicable Credit Party, enforceable
against such Credit Party in accordance with its 


 


57

















 


terms,
except as enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors’ rights generally
or by equitable principles.


 


(c)                                  Intellectual
Property.  Company and
its Subsidiaries own or have the valid right to use all material Intellectual
Property, and all Intellectual Property is free and clear of any and all Liens
other than Liens securing the Obligations and Liens permitted pursuant to Section 6.2(i).  Any registrations in respect of the
Intellectual Property are in full force and effect and are valid and
enforceable. The conduct of the business of Company and its Subsidiaries as
currently conducted, and as currently contemplated to be conducted, including,
but not limited to, all products, processes or services, made, offered or sold
by Company and its Subsidiaries, does not and will not infringe upon, violate,
misappropriate or dilute any intellectual property of any third party which
infringement, violation, misappropriation or dilution could reasonably be
expected to have a Material Adverse Effect. To the knowledge of Holdings,
Company or any of its Subsidiaries, no third party is infringing upon or
misappropriating, violating or otherwise diluting any Intellectual Property
where such infringement, misappropriation, violation or dilution could
reasonably be expected to have a Material Adverse Effect.  Neither Holdings, Company nor any of its
Subsidiaries is enjoined from using any material Intellectual Property, and
except as could reasonably be expected to have a Material Adverse Effect, there
is no pending or, to the knowledge of Holdings, Company or any of its
Subsidiaries, threatened claim or litigation contesting (i) any right of
Company or any of its Subsidiaries to own or use any Intellectual Property, or (ii) the
validity or enforceability of any Intellectual Property.


 


4.14                        Environmental
Matters.  Except as
set forth in Schedule 4.14 hereto: (i) neither Holdings nor any of its
Subsidiaries nor any of their respective Facilities or operations are subject
to any outstanding written order, consent decree or settlement agreement with
any Person relating to any Environmental Law, any Environmental Claim, or any
Hazardous Materials Activity which individually or in the aggregate would
reasonably be expected to have a Material Adverse Effect; (ii) as of the
Closing Date, or except as otherwise reported to the Administrative Agent after
the Closing Date, neither Holdings nor any of its Subsidiaries has
received within the last ten (10) years any letter or request for
information under Section 104 of the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. § 9604), or any comparable
state law; (iii) there are and, to each of Holdings’ and its Subsidiaries’
knowledge, have been, no conditions, occurrences, or Hazardous Materials
Activities which would reasonably be expected to form the basis of an
Environmental Claim against Holdings or any of its Subsidiaries, which
individually or in the aggregate would reasonably be expected to have a
Material Adverse Effect; and (iv) neither Holdings nor any of its
Subsidiaries nor, to any Credit Party’s knowledge, any predecessor of Holdings
or any of its Subsidiaries has filed any notice under any Environmental Law
indicating past or present treatment of Hazardous Materials at any Facility,
and none of Holdings’ or any of its Subsidiaries’ operations involves the
generation, transportation, treatment, storage or disposal of hazardous waste,
as defined under 40 C.F.R. Parts 260-270 or any state equivalent, which
individually or in the aggregate would reasonably be expected to have a
Material Adverse Effect.  Notwithstanding
anything to the contrary in this Section 4.14, compliance with all current
or reasonably foreseeable future requirements pursuant 


 


58

















 


to or under Environmental
Laws would not be reasonably expected to have, individually or in the
aggregate, a Material Adverse Effect and no event or condition has occurred or
is occurring with respect to Holdings or any of its Subsidiaries relating to
any Environmental Law, any Release of Hazardous Materials, or any Hazardous
Materials Activity, including, without limitation, any matter included in
Schedule 4.14, which individually or in the aggregate has had, or would
reasonably be expected to have, a Material Adverse Effect.


 


4.15                        No
Defaults.  Neither
Holdings nor any of its Subsidiaries is in default in the performance,
observance or fulfillment of any of the obligations or covenants contained in (i) any
of its Contractual Obligations (other than the Credit Documents and the
Revolving Credit Documents), and no condition exists which, with the giving of
notice or the lapse of time or both, could constitute such a default, except
where the consequences, direct or indirect, of such default or defaults, if
any, could not reasonably be expected to have a Material Adverse Effect and (ii) any
Credit Document and any Revolving Credit Document.


 


4.16                        Governmental
Regulation.  Neither
Holdings nor any of its Subsidiaries is subject to regulation under the Federal
Power Act or the Investment Company Act of 1940 or under any other federal or
state statute or regulation which may limit its ability to incur Indebtedness
or which may otherwise render all or any portion of the Obligations
unenforceable.  Neither Holdings nor any
of its Subsidiaries is a “registered investment company” or a company
“controlled” by a “registered investment company” or a “principal underwriter”
of a “registered investment company” as such terms are defined in the
Investment Company Act of 1940.


 


4.17                        Margin
Regulations.  Neither
Holdings nor any of its Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying any Margin Stock. 
Neither the making of the Loans nor the pledge of the Collateral
pursuant to the Collateral Documents, violates Regulation T, U or X of the
Board of Governors of the Federal Reserve System.  No part of the proceeds of the Loans made to
such Credit Party will be used to purchase or carry any such margin stock or to
extend credit to others for the purpose of purchasing or carrying any such
margin stock or for any purpose that violates, or is inconsistent with, the
provisions of Regulation T, U or X of said Board of Governors.


 


4.18                        Employee
Matters.  Neither
Holdings nor any of its Subsidiaries is engaged in any unfair labor practice
that could reasonably be expected to have a Material Adverse Effect.  Except as set forth in Schedule 4.18, there
is (a) no unfair labor practice complaint pending against Holdings or any
of its Subsidiaries, or to the best knowledge of Holdings and Company,
threatened against any of them before the National Labor Relations Board and no
grievance or arbitration proceeding arising out of or under any collective
bargaining agreement that is so pending against Holdings or any of its
Subsidiaries or to the best knowledge of Holdings and Company, threatened
against any of them, and the hours worked by and payments made to employees of
Holdings or any of its Subsidiaries have not violated the Fair Labor Standards
Act or any other law dealing with such matters, (b) no strike or work stoppage in
existence or threatened involving Holdings or any of its Subsidiaries, and (c) to
the best knowledge of 


 


59

















 


Holdings and Company, no
union representation question existing with respect to the employees of
Holdings or any of its Subsidiaries and, to the best knowledge of Holdings and
Company, no union organization activity that is taking place; which in each
case in clause (a), (b) or (c) above (including, without limitation,
any matter included in Schedule 4.18), could either individually or in the
aggregate reasonably be expected to have a Material Adverse Effect.


 


4.19                        Employee
Benefit Plans.  Holdings,
each of its Subsidiaries and each of their respective ERISA Affiliates are in
material compliance with all applicable provisions and requirements of ERISA
and the Internal Revenue Code and the regulations and published interpretations
thereunder with respect to each Employee Benefit Plan, and have performed all
their obligations under each Employee Benefit Plan in all material
respects.  Each Employee Benefit Plan
which is intended to qualify under Section 401(a) of the Internal
Revenue Code has received a favorable determination letter from the Internal
Revenue Service indicating that such Employee Benefit Plan is so qualified and
nothing has occurred subsequent to the issuance of such determination letter
which reasonably would be expected to cause such Employee Benefit Plan to lose
its qualified status.  No liability to
the PBGC (other than required premium payments), the Internal Revenue Service,
any Employee Benefit Plan or any trust established under Title IV of ERISA has
been or reasonably is expected to be incurred by Holdings, any of its
Subsidiaries or any of their ERISA Affiliates. 
Except as set forth in Schedule 4.19 (and except for changes in matters
identified in Schedule 4.19 that are not, individually or in the aggregate,
material), no ERISA Event has occurred or is reasonably expected to occur.  Except as set forth in Schedule 4.19, and
except to the extent required under Section 4980B of the Internal Revenue
Code or similar state laws, no Employee Benefit Plan provides health or welfare
benefits (through the purchase of insurance or otherwise) for any retired or
former employee of Holdings, any of its Subsidiaries or any of their respective
ERISA Affiliates.  Except as set forth in
Schedule 4.19 (and except for changes in matters identified in Schedule 4.19
that are not, individually or in the aggregate, material), the present value of
the aggregate benefit liabilities under each Pension Plan sponsored, maintained
or contributed to by Holdings, any of its Subsidiaries or any of their ERISA
Affiliates, (determined as of the end of the most recent plan year on the basis
of the actuarial assumptions specified for funding purposes in the most recent
actuarial valuation for such Pension Plan), did not exceed the aggregate
current value of the assets of such Pension Plan.  Neither Holdings, its Subsidiaries nor their
respective ERISA Affiliates maintains, contributes to or is required to
contribute to any Multiemployer Plan.


 


4.20                        Certain
Fees.  Except as otherwise disclosed
in writing to Administrative Agent and Arranger, no broker’s or finder’s fee or
commission will be payable with respect hereto or any of the transactions
contemplated hereby, and Company hereby indemnifies Lenders, Agents and
Arranger against, and agrees that it will hold Lenders, Agents and Arranger
harmless from, any claim, demand or liability for any such broker’s or finder’s
fees alleged to have been incurred in connection herewith or therewith and any
expenses (including reasonable fees, expenses and disbursements of counsel)
arising in connection with any such claim, demand or liability.


 


60

















 


4.21                        Solvency.  Borrower is, and Holdings and its
Subsidiaries (on a consolidated basis), are, and, upon the incurrence of any
Obligation by any Credit Party on any date on which this representation and
warranty is made, will be, Solvent.


 


4.22                        Collateral.


 


(a)                                  Collateral
Documents. The security interests created in favor of
Collateral Agent under the Collateral Documents constitute, as security for the
obligations purported to be secured thereby, a legal, valid and enforceable
security interest in all of the Collateral referred to therein in favor of
Collateral Agent for the benefit of the Lenders.  The security interests in and Liens upon the
Collateral described in the Collateral Documents are valid and perfected First
Priority or Second Priority Liens (in accordance with the priorities set forth
in the Intercreditor Agreement) to the extent such security interests and Liens
can be perfected by such filings and recordations.  No consents, filings or recordings are
required in order to perfect (or maintain the perfection or priority of) the
security interests purported to be created by any of the Collateral Documents,
other than (i) such as have been obtained and which remain in full force
and effect, (ii) the periodic filing of UCC continuation statements in
respect of UCC financing statements filed by or on behalf of Collateral Agent,
and (iii) with respect to such items of Collateral as to which this Agreement
or the Collateral Documents do not require any consent, filing or recordation.


 


(b)                                 Absence of
Third Party Filings.  Except such
as may have been filed in favor of Collateral Agent as contemplated by Section 4.23(a) above
and except as set forth on Schedule 4.22 annexed hereto or, after the Closing
Date, as may have been filed with respect to a Lien permitted by Section 6.2,
(i) no effective UCC financing statement, fixture filing or other
instrument similar in effect covering all or any part of the Collateral is on
file in any filing or recording office and (ii) no effective filing with
respect to a Lien covering all or any part of the Collateral is on file with
the United States Patent and Trademark Office or United States Copyright Office
or any other Governmental Authority.


 


4.23                        Disclosure.  No representation or warranty of Holdings and
its Subsidiaries contained in any Credit Document or in any other documents,
certificates or written statements furnished to Lenders by or on behalf of
Holdings or any of its Subsidiaries for use in connection with the transactions
contemplated hereby or thereby contains any untrue statement of a material fact
or omits (when taken as a whole) to state a material fact (known to Holdings or
Company, in the case of any document not furnished by either of them) necessary
in order to make the statements contained herein or therein not misleading in
light of the circumstances in which the same were made.  Any projections and pro forma financial
information contained in such materials are based upon good faith estimates and
assumptions believed by Holdings or Company to be reasonable at the time made,
it being recognized by Lenders that such projections as to future events are
not to be viewed as facts and that actual results during the period or periods
covered by any such projections may differ from the projected results.  There is no fact known to Holdings or Company
(other than matters of a general economic nature) that, individually or in the
aggregate, has had, or could reasonably be expected to result in, a Material 


 


61

















 


Adverse Effect and that has
not been disclosed herein or in such other documents, certificates and
statements furnished to Lenders for use in connection with the transactions
contemplated hereby.


 


4.24                        Deposit
Accounts


 


Annexed hereto as Schedule
4.24 is a list of all Deposit Accounts maintained by the Credit Parties as
of the Closing Date, which Schedule includes, with respect to each deposit
account (i) the name and address of the depository; (ii) the account
number(s) maintained with such depository; and (iii) a contact person
at such depository.


 


SECTION 5.                            AFFIRMATIVE COVENANTS


 


Each Credit Party covenants
and agrees that so long as any Commitment is in effect and until payment in
full of all Obligations, each Credit Party shall perform, and shall cause each
of its Subsidiaries to perform, all covenants in this Section 5.


 


5.1                               Financial
Statements and Other Reports.  Holdings will deliver to Administrative Agent
and Collateral Agent for each Lender:


 


(a)                                  [RESERVED]


 


(b)                                 Quarterly
Financial Statements.  Within two (2) Business
Days after the date on which Holdings files or is required to file its Form 10-Q
under the Exchange Act (but without giving effect to any extension pursuant to Rule 12b-25
under the Exchange Act (or any successor rule) or otherwise) (or, if Holdings
is not required to file a Form 10-Q under the Exchange Act, within fifty
(50) days after the end of each of the first three Fiscal Quarters of each
Fiscal Year (commencing with the Fiscal Quarter ending June 30, 2007)), (i) the
consolidated and consolidating balance sheets of Holdings and its Subsidiaries
as at the end of such Fiscal Quarter and the related consolidated (and with
respect to statements of income, consolidating) statements of income and cash
flows of Holdings and its Subsidiaries for such Fiscal Quarter and for the
period from the beginning of the then current Fiscal Year to the end of such
Fiscal Quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding periods of the previous Fiscal Year
and the corresponding figures from the Financial Plan for the current Fiscal
Year, all prepared in accordance with GAAP and in reasonable detail and
certified by the chief financial officer, senior vice president-finance,
treasurer or controller of Company or Holdings that they fairly present, in all
material respects, the consolidated financial condition of Holdings and its
Subsidiaries as at the dates indicated and the results of their operations and
their cash flows for the periods indicated, subject to changes resulting from
audit and normal year-end adjustments and the absence of footnotes, and (ii) a
narrative report describing the financial condition and results of operations
of Holdings and its Subsidiaries for such Fiscal Quarter in form and substance
reasonably satisfactory to Administrative Agent;


 


62

















 


(c)                                  Annual
Financial Statements.  Within two (2) Business
Days after the date on which the Holdings files or is required to file its Form 10-K
under the Exchange Act (but without giving effect to any extension pursuant to Rule 12b-25
under the Exchange Act (or any successor rule) or otherwise) (or, if Holdings
is not required to file a Form 10-K under the Exchange Act, within one
hundred (100) days after the end of each Fiscal Year (commencing with the
Fiscal Year ending December 31, 2007)), (i) the consolidated and
consolidating  balance sheets of
Holdings and its Subsidiaries as at the end of such Fiscal Year and the related
consolidated (and with respect to statements of income, consolidating)
statements of income, stockholder’s equity and cash flows of Holdings and its
Subsidiaries for such Fiscal Year, setting forth in each case in comparative
form the corresponding figures for the previous Fiscal Year and the
corresponding figures from the Financial Plan for the Fiscal Year covered by
such financial statements, all prepared in accordance with GAAP and in
reasonable detail and certified by the chief financial officer, senior vice
president-finance, treasurer or controller of Company or Holdings that they
fairly present, in all material respects, the consolidated financial condition
of Holdings and its Subsidiaries as at the dates indicated and the results of
their operations and their cash flows for the periods indicated, and (ii) a
narrative report describing the financial condition and results of operations
of Holdings and its Subsidiaries in form and substance reasonably satisfactory
to Administrative Agent; (iii) with respect to such consolidated financial
statements a report thereon of independent certified public accountants of
recognized national standing selected by Holdings, and reasonably satisfactory
to Administrative Agent (which report shall be unqualified as to going concern
and scope of audit, and shall state that such consolidated financial statements
fairly present, in all material respects, the consolidated financial position of
Holdings and its Subsidiaries as at the dates indicated and the results of
their operations and their cash flows for the periods indicated in conformity
with GAAP applied on a basis consistent with prior years (except as otherwise
disclosed in such financial statements) and that the examination by such
accountants in connection with such consolidated financial statements has been
made in accordance with generally accepted auditing standards) together with a
written statement by such independent certified public accountants stating (1) that
their audit examination has included a review of the terms of the Credit
Documents, and (2) whether, in connection therewith, any condition or
event that constitutes a Default or an Event of Default under Section 6.8
or otherwise with respect to accounting matters has come to their attention
and, if such a condition or event has come to their attention, specifying the
nature and period of existence thereof;


 


(d)                                 Compliance
Certificate.  Together
with each delivery of financial statements of Holdings and its Subsidiaries
pursuant to Sections 5.1(b) and 5.1(c), a duly executed and completed
Compliance Certificate;


 


(e)                                  Statements of
Reconciliation after Change in Accounting Principles.  If, as a result of any change in accounting
principles and policies from those used in the preparation of the financial
statements referred to in Section 4.7, the consolidated financial
statements of Holdings and its Subsidiaries delivered pursuant to Section 5.1(b) or
5.1(c) will differ in any material respect from the consolidated financial
statements that would have been delivered pursuant to such subdivisions had no
such change in accounting principles and policies been made, then, together
with the first delivery of such financial statements after such change, one or 


 


63

















 


more statements of
reconciliation for all such prior financial statements in form and substance
reasonably satisfactory to Administrative Agent;


 


(f)                                    Notice of
Default, etc.  Promptly
upon, and in any event within five (5) days after, any officer of Holdings
or any of its Subsidiaries obtaining knowledge (i) of any condition or
event that constitutes a Default or an Event of Default or that notice has been
given to Holdings or any of its Subsidiaries with respect thereto; (ii) that
any Person has given any notice to Holdings or any of its Subsidiaries or taken
any other action with respect to any claimed default or event or condition of
the type referred to in Section 8.1(b); or (iii) of the occurrence of
any event or change that has caused or evidences or would reasonably be
expected to have, either in any case or in the aggregate, a Material Adverse
Effect; a certificate of its Authorized Officers specifying the nature and period
of existence of such condition, event or change, or specifying the notice given
and action taken by any such Person and the nature of such claimed Event of
Default, Default, default, event or condition, and what action Holdings or the
applicable Subsidiary has taken, is taking and proposes to take with respect
thereto;


 


(g)                                 Notice of
Litigation.  Promptly
upon, and in any event within five (5) days after, any officer of Holdings
or any of its Subsidiaries obtaining knowledge of (i) the institution of,
or non-frivolous threat of, any Adverse Proceeding not previously disclosed in
writing by Company to Lenders, or (ii) any material development in any
Adverse Proceeding that, in the case of either (i) or (ii) if
adversely determined, could be reasonably expected to have a Material Adverse
Effect, or seeks to enjoin or otherwise prevent the consummation of, or to
recover any damages or obtain relief as a result of, the transactions
contemplated hereby, written notice thereof together with such other information
as may be reasonably available to Holdings or any of its Subsidiaries to enable
Lenders and their counsel to evaluate such matters;


 


(h)                                 ERISA.  (i) Promptly upon becoming aware of the
occurrence of or forthcoming occurrence of any ERISA Event, a written notice
specifying the nature thereof, what action Holdings, any of its Subsidiaries or
any of their respective ERISA Affiliates has taken, is taking or proposes to
take with respect thereto and, when known, any action taken or threatened by
the Internal Revenue Service, the Department of Labor or the PBGC with respect
thereto; and (ii) with reasonable promptness, copies of (1) each
Schedule B (Actuarial Information) to the annual report (Form 5500
Series) filed by Holdings, any of its Subsidiaries or any of their respective
ERISA Affiliates with the Internal Revenue Service with respect to each Pension
Plan and (2) copies of such other documents or governmental reports or
filings relating to any Employee Benefit Plan as Administrative Agent shall
reasonably request;


 


(i)                                     Financial Plan.  As soon as practicable and in any event no
later than 90 days after the beginning of each Fiscal Year, a monthly
consolidated and consolidating  plan
and financial forecast for such Fiscal Year (a “Financial Plan”), including a forecasted consolidated balance
sheet and forecasted consolidated and consolidating statements of income and
consolidated statement of cash flows of Holdings and its Subsidiaries for such
Fiscal Year, together with pro forma Compliance Certificates for each such
Fiscal Year and an explanation of the assumptions on which such forecasts are
based;


 


64














 


(j)                                     Insurance Report.  As soon as practicable and in any event by
the last day of each calendar year, a report in form and substance reasonably
satisfactory to Administrative Agent outlining all material insurance coverage
maintained as of the date of such report by Holdings and its Subsidiaries and
all material insurance coverage planned to be maintained by Holdings and its
Subsidiaries in the immediately succeeding calendar year;


 


(k)                                  Accountants’ Reports.  Promptly upon receipt thereof (unless
restricted by applicable professional standards), copies of all reports
submitted to Holdings or Company by independent certified public accountants in
connection with each annual, interim or special audit of the financial
statements of Holdings and its Subsidiaries made by such accountants, including
any comment letter submitted by such accountants to management in connection
with their annual audit;


 


(l)                                     [RESERVED]


 


(m)                               Environmental Reports and Audits.  As soon as
practicable following receipt thereof, copies of all environmental audits and
reports, whether prepared by personnel of Company or any of its Subsidiaries or
by independent consultants, with respect to environmental matters at any
Facility or which relate to any environmental liabilities of Holdings or its
Subsidiaries which, in any such case, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect;


 


(n)                                 Other Information.  (A) Promptly upon their becoming
available, copies of (i) all financial statements, reports, notices and
proxy statements sent or made available generally by Holdings to holders of its
Indebtedness or to holders of its public equity securities or by any Subsidiary
of Holdings to its security holders other than Holdings or another Subsidiary of
Holdings, (ii) all regular and periodic reports and all registration
statements and prospectuses, if any, filed by Holdings or any of its
Subsidiaries with any securities exchange or with the Securities and Exchange
Commission or any governmental or private regulatory authority, (iii) all
press releases and other statements made available generally by Holdings or any
of its Subsidiaries to the public concerning material developments in the
business of Holdings or any of its Subsidiaries, and (B) such other
information and data with respect to Holdings or any of its Subsidiaries
(including, without limitation, financial statements with respect to Holdings
and its Subsidiaries) as from time to time may be reasonably requested by
Administrative Agent or any Lender;


 


5.2                               Existence.  Except as otherwise permitted under Section 6.9,
each Credit Party will, and will cause each of its Subsidiaries to, at all
times preserve and keep in full force and effect (i) its existence and (ii) all
rights and franchises, licenses and permits material to the business of
Holdings and its Subsidiaries (on a consolidated basis).


 


65

















 


5.3                               Payment
of Taxes and Claims.  Each Credit
Party will, and will cause each of its Subsidiaries to, pay all Taxes imposed
upon it or any of its properties or assets or in respect of any of its income,
businesses or franchises before any penalty or fine accrues thereon, and all
claims (including claims for labor, services, materials and supplies) for sums
that have become due and payable which, if unpaid, might become a Lien upon any
of its properties or assets; provided, no such Tax or claim need be paid
if it is being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted, so long as adequate reserve or other
appropriate provision, as shall be required in conformity with GAAP shall have
been made therefor.  No Credit Party
will, nor will it permit any of its Subsidiaries to, file or consent to the
filing of any consolidated income tax return with any Person (other than
Holdings or any of its Subsidiaries).


 


5.4                               Maintenance
of Properties.  Each Credit
Party will, and will cause each of its Subsidiaries to, maintain or cause to be
maintained in good repair, working order and condition, ordinary wear and tear
excepted, all material properties owned by Holdings, Company or its
Subsidiaries or used or useful in the business of Company and its Subsidiaries
(including all Intellectual Property) and from time to time will make or cause
to be made all appropriate repairs, renewals and replacements thereof.


 


5.5                               Insurance.  Each Credit Party will, and will cause each
of its Subsidiaries to, maintain or cause to be maintained, with financially
sound and reputable insurers, such public liability insurance, third party
property damage insurance, business interruption insurance and casualty
insurance with respect to liabilities, losses or damage in respect of the
assets, properties and businesses of Company and its Subsidiaries as may
customarily be carried or maintained under similar circumstances by Persons of
established reputation engaged in similar businesses, in each case in such
amounts (giving effect to self-insurance), with such deductibles, covering such
risks and otherwise on such terms and conditions as shall be customary for such
Persons.  Without limiting the generality
of the foregoing, each Credit Party will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained (a) flood insurance
with respect to each Flood Hazard Property that is located in a community that
participates in the National Flood Insurance Program, in each case in
compliance with any applicable regulations of the Board of Governors of the
Federal Reserve System, and (b) replacement value casualty insurance on
the Collateral under such policies of insurance, with such insurance companies,
in such amounts, with such deductibles, and covering such risks as are at all
times carried or maintained under similar circumstances by Persons of
established reputation engaged in similar businesses.  Each such policy of insurance shall (i) name
the Administrative Agent, the Collateral Agent and the Lenders as an additional
insured thereunder as its interests may appear and (ii) in the case of
each casualty insurance policy, contain a loss payable clause or endorsement,
satisfactory in form and substance to Collateral Agent, that names the
Collateral Agent, on behalf of Lenders as the loss payee thereunder and
provides for at least thirty (30) days’ prior written notice to Collateral
Agent of any modification or cancellation of such policy.


 


5.6                               Inspections.  Each Credit Party will, and
will cause each of its Subsidiaries to, permit any authorized representatives
designated by Administrative Agent, Collateral Agent or 


 


66

















 


any Lender (and, in the case of any Lender, accompanied by
Administrative Agent or Collateral Agent) to visit and inspect any of the
properties of any Credit Party and any of its respective Subsidiaries, to
inspect the Collateral, or otherwise to inspect, copy and take extracts from
its and their financial and accounting records, and to discuss its and their
properties, assets, affairs, finances and accounts with its and their officers
and independent public accountants (it being understood that, prior to the
occurrence and continuance of an Event of Default, (x) any such
discussions or meetings shall be limited to Administrative Agent and (y) in
the case of discussions or meetings with the independent public accountants,
only if Company has been given the opportunity to participate in such
discussions or meetings), all upon reasonable notice and at such reasonable
times during normal business hours and as often as may reasonably be requested.


 


5.7                               Lenders
Meetings.  Holdings and
Company will, upon the request of Administrative Agent or Requisite Lenders,
participate in a meeting of Administrative Agent and Lenders once during each
calendar year to be held at Company’s corporate offices (or at such other
location as may be agreed to by Company and Administrative Agent) at such time
as may be agreed to by Company and Administrative Agent.


 


5.8                               Compliance
with Laws.  Each Credit
Party will comply, and shall cause each of its Subsidiaries to comply, with the
requirements of all applicable laws, rules, regulations and orders of any
Governmental Authority (including all Environmental Laws), noncompliance with
which could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.


 


5.9                               Environmental.


 


(a)                                  Environmental Disclosure.  Each Credit Party will, and will cause each
of its Subsidiaries to, deliver to Administrative Agent and Lenders:


 


(i)                                     as soon as practicable following receipt thereof, copies of
all material environmental audits, investigations, analyses and reports of any
kind or character, whether prepared by personnel of Holdings or any of its
Subsidiaries or by independent consultants, governmental authorities or any
other Persons, with respect to significant environmental matters at any
Facility or with respect to any Environmental Claims; provided, however,
that this Section 5.9(a)(i) shall not apply to communications covered
by valid claims of attorney client privilege or to attorney work product
generated by legal counsel to Holdings or any of its Subsidiaries;


 


(ii)                                  promptly upon the occurrence thereof, written notice
describing in reasonable detail (1) any Release required to be reported to
any 


 


67

















 


federal, state or local governmental or regulatory agency
under any applicable Environmental Laws, (2) any remedial action taken by
Holdings or any other Person in response to (A) any Hazardous Materials
Activities the existence of which has a reasonable possibility of resulting in
one or more Environmental Claims having, individually or in the aggregate, a
Material Adverse Effect, or (B) any Environmental Claims that,
individually or in the aggregate, have a reasonable possibility of resulting in
a Material Adverse Effect, and (3) Holdings or any of its Subsidiaries’
discovery of any occurrence or condition on any real property adjoining or in
the vicinity of any Facility that could cause such Facility or any part thereof
to be subject to any material restrictions on the ownership, occupancy,
transferability or use thereof under any Environmental Laws;


 


(iii)                               as soon as practicable following the sending or receipt
thereof by Holdings or any of its Subsidiaries, a copy of any and all written
communications to or from any Governmental Authority or any Person bringing an
Environmental Claim against Holdings or any of its Subsidiaries with respect
to: (1) any Environmental Claims that, individually or in the aggregate,
have a reasonable possibility of giving rise to a Material Adverse Effect, (2) any
Release required to be reported to any Governmental Authority, and (3) any
written request for information from any Governmental Authority stating such
Governmental Authority is investigating whether Holdings or any of its
Subsidiaries may be potentially responsible for any Hazardous Materials
Activity; and


 


(iv)                              with reasonable promptness, such other documents and
information as from time to time may be reasonably requested by Administrative
Agent in relation to any matters disclosed pursuant to this Section 5.9(a).


 


(b)                                 Hazardous Materials Activities, Etc.  Each Credit Party
shall promptly take, and shall cause each of its Subsidiaries promptly to take,
any and all actions necessary to (i) cure any violation of applicable
Environmental Laws by such Credit Party or its Subsidiaries that would
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, and (ii) make an appropriate response to any Environmental
Claim against such Credit Party or any of its Subsidiaries and discharge any
obligations it may have to any Person thereunder where failure to do so would
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.


 


5.10                        Subsidiaries.  In the event that any Person becomes a
Domestic Subsidiary of Company, Company shall (a) promptly, and in any
event within ten (10) days, cause such 


 


68

















 


Domestic Subsidiary to become a Guarantor hereunder and a Grantor
under the Pledge and Security Agreement by executing and delivering to
Administrative Agent and Collateral Agent a Counterpart Agreement, and (b) take
all such actions and execute and deliver, or cause to be executed and
delivered, all Perfection Deliverables and such documents, instruments,
agreements, opinions and certificates as are similar to those described in
Sections 3.1(b) and 3.1(f), and any other actions required by the Pledge
and Security Agreement.  In the event
that any Person becomes a Foreign Subsidiary of Company, and the ownership
interests of such Foreign Subsidiary are owned by Company or by any Domestic
Subsidiary thereof, Company shall, or shall cause such Domestic Subsidiary to,
promptly, and in any event within ten (10) days, deliver all such
documents, instruments, agreements, and certificates as are similar to those
described in Section 3.1(b), and Company shall take, or shall cause such
Domestic Subsidiary to take, all of the actions referred to in clause (i) of
the definition of “Perfection Deliverables” necessary to grant and to perfect a
First Priority of Second Priority Lien (in accordance with the priorities set
forth in the Intercreditor Agreement) in favor of Collateral Agent, for the
benefit of Secured Parties, under the Pledge and Security Agreement in 66% of
such ownership interests.  With respect
to each such Subsidiary, Company shall promptly send to Administrative Agent
written notice setting forth with respect to such Person (i) the date on
which such Person became a Subsidiary of Company, and (ii) all of the data
required to be set forth in Schedules 4.1 and 4.2 with respect to all
Subsidiaries of Company; provided, such written notice upon
Administrative Agent’s approval of the contents therein shall be deemed to supplement
Schedule 4.1 and 4.2 for all purposes hereof.  Notwithstanding anything to the contrary in
this Section 5.10, the requirements of this Section 5.10 shall not
apply to any property or Subsidiary created or acquired after the Closing Date,
as to which the Collateral Agent has determined in its sole discretion that the
collateral value thereof is insufficient to justify the difficulty, time and/or
expense of obtaining a perfected security interest therein.  The Collateral Agent is hereby authorized by the
Lenders to enter into such amendments to the Collateral Documents as the
Collateral Agent deems necessary to effectuate the provisions of this Section 5.10.


 


5.11                        Additional Real Estate Assets.  In the event that any Credit Party acquires,
or any Person that becomes a Credit Party holds, a Real Estate Asset that is (a) a
fee interest with a fair market value equal to or greater than $500,000 or (b) a
leasehold interest with a value that Administrative Agent in its sole
discretion, after consultation with Company, determines is material, and such
interest has not otherwise been made subject to a perfected First Priority or
Second Priority Lien (in accordance with the priorities set forth in the
Intercreditor Agreement) of the Collateral Documents in favor of Collateral
Agent, for the benefit of Secured Parties, then such Credit Party shall,
promptly, and in any event within ten (10) days of such Credit Party
acquiring such Real Estate Asset or such Person becoming a Credit Party, take
all such actions and execute and deliver, or cause to be executed and
delivered, all Real Estate Asset Deliverables and Perfection Deliverables with
respect to each such Real Estate Asset to create in favor of Collateral Agent,
for the benefit of Secured Parties, a valid and, subject to any filing and/or
recording referred to herein, perfected First Priority or Second Priority Lien
(in accordance with the priorities set forth in the Intercreditor Agreement) in
such Real Estate Assets, and reports and other information reasonably
satisfactory to Administrative Agent regarding environmental matters
(including, without limitation, a Phase I Report) with respect to such Real
Estate Assets.  In addition to the
foregoing, Company shall, at the request of Requisite Lenders, deliver, from
time to time (but, prior to the occurrence and during the continuance of a 


 


69

















 


Default or Event of Default, not more than once every two calendar
years), to Administrative Agent such appraisals of Real Estate Assets with
respect to which Collateral Agent has been granted a Lien.  Notwithstanding anything to the contrary in
this Section 5.11, the requirements of this Section 5.11 shall not
apply to any Real Estate Asset acquired after the Closing Date, as to which the
Collateral Agent has determined in its sole discretion that the collateral
value thereof is insufficient to justify the difficulty, time and/or expense of
obtaining a perfected security interest therein.  The Collateral Agent is hereby authorized by
the Lenders to enter into such amendments to the Collateral Documents as the
Collateral Agent deems necessary to effectuate the provisions of this Section 5.11.


 


5.12                        [Reserved].


 


5.13                        Further Assurances.  At any time or from time to
time upon the request of Administrative Agent or Collateral Agent, each Credit
Party will, at its expense, promptly execute, acknowledge and deliver such
further documents and do such other acts and things as Administrative Agent or
Collateral Agent may reasonably request in order to effect fully the purposes
of the Credit Documents.  In furtherance
and not in limitation of the foregoing, each Credit Party shall take such
actions as Administrative Agent or Collateral Agent may reasonably request from
time to time to ensure that the Obligations are guarantied by the Guarantors
and are secured by substantially all of the assets of Holdings, and its
Subsidiaries and all of the outstanding Capital Stock of Company and its
Subsidiaries (in each case subject to limitations contained in the Credit
Documents with respect to Foreign Subsidiaries).


 


5.14                        ERISA.  Neither Holdings, its Subsidiaries or their
respective ERISA Affiliates shall establish, maintain, contribute to, or become
required to contribute to any Multiemployer Plan.


 


5.15                        Maintenance of Credit
Rating.  Holdings shall use its
commercially reasonable efforts (including the timely payment of all customary
amounts and the timely submission of all customary documentation) to ensure
that (i) the credit facility provided for under this Agreement shall at
all times have a credit rating assigned by S&P and Moody’s and (ii) the
Borrower shall at all times have a corporate credit rating assigned by S&P
and Moody’s; provided, however, that in the event either S&P
or Moody’s ceases to exist, ceases to be in the business of issuing ratings in
respect of credit facilities, or the rating of such facilities is not otherwise
obtainable from such agencies, then Holdings shall use its commercially
reasonable efforts (including the timely payment of all customary amounts and
the timely submission of all customary documentation) to ensure that such
facilities are rated by another nationally recognized statistical rating agency
acceptable to Administrative Agent.


 


SECTION 6.                            NEGATIVE COVENANTS


 


Each Credit Party covenants and agrees that, so long
as any Commitment is in effect and until payment in full of all Obligations,
such Credit Party shall perform, and shall cause each of its Subsidiaries to
perform, all covenants in this Section 6.


 


70

















 


6.1                               Indebtedness.  Each of Holdings and Company shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly, create,
incur, assume or guaranty, or otherwise become or remain directly or indirectly
liable with respect to any Indebtedness, except:


 


(a)                                  the Obligations;


 


(b)                                 Company may become and remain liable with respect to
Indebtedness to any of its wholly-owned Guarantor Subsidiaries, and any
wholly-owned Guarantor Subsidiary of Company may become and remain liable with
respect to Indebtedness to Company or any other wholly-owned Guarantor
Subsidiary of Company; provided, (i) all such Indebtedness under
this subclause (b) shall be (x) evidenced by promissory notes and all
such notes shall be subject to a First Priority or Second Priority Lien (in
accordance with the priorities set forth in the Intercreditor Agreement)
pursuant to the Pledge and Security Agreement and (y) unsecured and
subordinated in right of payment to the payment in full of the Obligations
pursuant to the terms of the applicable promissory notes or an intercompany
subordination agreement that in any such case, is reasonably satisfactory to
Administrative Agent, and (ii) any payment by any such Subsidiary under
any guaranty of the Obligations shall result in a pro  tanto
reduction of the amount of any Indebtedness owed by such Subsidiary to Company
or to any of its Subsidiaries for whose benefit such payment is made;


 


(c)                                  [RESERVED];


 


(d)                                 Indebtedness of Company and its Subsidiaries arising in
respect of netting services or overdraft protections with deposit accounts; provided,
that such Indebtedness is extinguished within three (3) Business Days of
its incurrence;


 


(e)                                  guaranties by Company of Indebtedness of a Guarantor Subsidiary
or guaranties by a Subsidiary of Company of Indebtedness of Company or a
Guarantor Subsidiary with respect, in each case, to Indebtedness otherwise
permitted to be incurred pursuant to this Section 6.1;


 


(f)                                    Indebtedness of Company and its Subsidiaries existing on the
Closing Date and described in Schedule 6.1, but not any extensions,
renewals, refinancings or replacements of such Indebtedness except (i) renewals
and extensions expressly provided for in the agreements evidencing any such
Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings
and extensions of any such Indebtedness if the terms and conditions thereof are
not materially less favorable (taken as a whole) to the obligor thereon or to
the Lenders than the Indebtedness being refinanced or extended, and the average
life to maturity thereof is greater than or equal to that of the Indebtedness
being refinanced or extended; provided, such Indebtedness permitted
under the immediately preceding clause (i) or (ii) above shall not (A) include
Indebtedness of an obligor that was not an obligor with respect to the 


 


71

















 


Indebtedness being extended, renewed or refinanced or (B) exceed
in a principal amount the Indebtedness being renewed, extended or refinanced;


 


(g)                                 purchase money Indebtedness of Company and its Subsidiaries
and Capital Leases (other than in connection with sale-leaseback transactions)
of Company and its Subsidiaries, in each case incurred in the ordinary course
of business to provide all or a portion of the purchase price or cost of
construction of an asset or an improvement of an asset not constituting part of
the Collateral; provided, that (A) such Indebtedness when incurred
shall not exceed the purchase price or cost of improvement or construction of
such asset, (B) no such Indebtedness shall be refinanced for a principal
amount in excess of the principal balance outstanding thereon at the time of
such refinancing, (C) such Indebtedness shall be secured only by the asset
acquired, constructed or improved in connection with the incurrence of such
Indebtedness and (D) the aggregate principal amount of all such
Indebtedness shall not exceed $7,500,000 at any time outstanding;


 


(h)                                 other Indebtedness of Company and its Subsidiaries, which is
unsecured, in an aggregate principal amount not to exceed $10,000,000 at any
time outstanding;


 


(i)                                     Indebtedness of Company under any Interest Rate Agreement or
Currency Agreement entered into for hedging purposes and in form and substance
reasonably satisfactory to the Administrative Agent;


 


(j)                                     Indebtedness evidenced by the Revolving Credit Documents in
an aggregate amount not to exceed an amount equal to $60.0 million (less the
amount of all permanent reductions of the Revolving Loan Commitments (as
defined in the Revolving Credit Facility)) and any Permitted Refinancing of the
Revolving Credit Facility;


 


(k)                                  additional senior unsecured or subordinated unsecured
Indebtedness, the terms and conditions of which (i) shall provide for a
maturity date no earlier than 180 days after the Additional Term Loan Maturity
Date hereunder and with no scheduled amortization or other scheduled payments
of principal prior to such date and (ii) shall be reasonably satisfactory
to Administrative Agent; provided, that (A) after giving pro forma
effect to the incurrence of such Indebtedness (and, if applicable, giving pro
forma effect to any Subject Transaction pursuant to Section 6.8(c)), (1) the
Leverage Ratio is not greater than 4.0 to 1.0 or (2) the Consolidated
Coverage Ratio is at least 2.0 to 1.0 and (B) no Default or Event of
Default has occurred or is continuing at the time of incurrence or would result
therefrom;


 


(l)                                     Indebtedness of a Person existing at the time such Person
becomes a Subsidiary of Company following the Closing Date, which Indebtedness
is in existence at the time such Person becomes a Subsidiary and is not created
in connection with or in contemplation of such Person becoming a Subsidiary; provided
that the aggregate principal amount of all such Indebtedness in the aggregate
shall not exceed $5,000,000 at any time outstanding;


 


72

















 


(m)                               Indebtedness of Holdings which is unsecured and subordinated
to the Obligations in a manner satisfactory to Administrative Agent and which
is issued in connection with the redemption or replacement of any preferred
Capital Stock of Holdings, in principal amount not to exceed the amount of such
preferred Capital Stock being redeemed or replaced, the terms and conditions of
which (i) shall provide for a maturity date at least one year after the
Additional Term Loan Maturity Date hereunder, with no scheduled amortization of
principal or mandatory prepayments prior to such date, (ii) no scheduled
or mandatory cash interest payments prior to such date, except to the extent
Holdings has sufficient cash therefor and (iii) shall otherwise be
satisfactory to Administrative Agent;


 


(n)                                 Capital Leases of Company entered into in connection with
sale-leaseback transactions permitted by Section 6.3; provided,
that (A) no such Indebtedness shall be refinanced for a principal amount
in excess of the principal balance outstanding thereon at the time of such
refinancing and (B) such Indebtedness shall be secured only by the
facility which is the subject of such Capital Lease; and


 


(o)                                 additional secured Indebtedness, the terms and conditions of
which (i) shall provide for a maturity date at least 180 days after the
Additional Term Loan Maturity Date hereunder with no scheduled amortization of
principal prior to such date, (ii) unless reasonably satisfactory to the
Administrative Agent pursuant to clause (iii) below, shall be no more
restrictive (without taking into account fees or interest rates), taken as a
whole, than those set forth in the Term Loan Documents as in effect on the
Closing Date, and (iii) shall otherwise be reasonably satisfactory to
Administrative Agent; provided, that (A) after giving pro forma
effect to the incurrence of such Indebtedness (and, if applicable, giving pro
forma effect to any Subject Transaction pursuant to Section 6.8(c)), the
Secured Debt Ratio is less than 2.5 to 1.0 and (B) no Default or Event of
Default has occurred or is continuing at the time of incurrence or would result
therefrom.


 


6.2                               Liens.  Each of Holdings and Company shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly, create,
incur, assume or permit to exist any Lien on or with respect to any property or
asset of any kind (including any document or instrument in respect of goods or
accounts receivable) of Holdings, Company or any such Subsidiaries, whether now
owned or hereafter acquired, or any income or profits therefrom, except:


 


(a)                                  Liens in favor of Collateral Agent for the benefit of Secured
Parties granted pursuant to any Credit Document;


 


(b)                                 Liens imposed by law for Taxes that are not yet required to
be paid pursuant to Section 5.3;


 


(c)                                  statutory Liens of landlords, banks (and rights of set-off),
of carriers, warehousemen, mechanics, repairmen, workmen and materialmen, and
other Liens imposed by 


 


73

















 


law (other than any such Lien imposed pursuant to Section 401(a)(29)
or 412(n) of the Internal Revenue Code or by ERISA), in each case incurred
in the ordinary course of business (i) for amounts not yet overdue or (ii) for
amounts that are overdue and that (in the case of any such amounts overdue for
a period in excess of five (5) days) are being contested in good faith by
appropriate proceedings, so long as such reserves or other appropriate
provisions, if any, as shall be required by GAAP shall have been made for any
such contested amounts;


 


(d)                                 deposits made 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, surety and appeal bonds, bids, leases, government contracts, trade
contracts, performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money or other
Indebtedness), so long as no foreclosure, sale or similar proceedings have been
commenced with respect to any portion of the Collateral on account thereof;


 


(e)                                  easements, rights-of-way, restrictions, encroachments, minor
defects or irregularities in title and other similar charges, in each case
which do not and will not interfere in any material respect with the use or
value thereof or which appear on a title report delivered to Administrative
Agent prior to the date hereof;


 


(f)                                    any interest or title of a lessor or sublessor under any
operating or true lease of real estate entered into by Company or its
Subsidiaries in the ordinary course of its business covering only the assets so
leased;


 


(g)                                 purported Liens evidenced by the filing of precautionary UCC
financing statements relating solely to operating leases of personal property
entered into in the ordinary course of business;


 


(h)                                 any attachment or judgment Lien not constituting an Event of
Default under Section 8.1(h);


 


(i)                                     non-exclusive licenses of Intellectual Property granted by
Company or any of its Subsidiaries in the ordinary course of business
consistent with past practice and not interfering in any respect with the ordinary
conduct of the business of Company or such Subsidiary;


 


(j)                                     bankers liens and rights of set-off with respect to customary
depositary arrangements entered into in the ordinary course of business of
Company and its Subsidiaries;


 


(k)                                  Liens granted by Company or its Subsidiaries existing on the
Closing Date and described in Schedule 6.2; provided, that (A) no
such Lien shall at any time be extended to 


 


74

















 


cover property or assets other than the property or assets
subject thereto on the Closing Date and (B) the principal amount of the
Indebtedness secured by such Liens shall not be extended, renewed, refunded,
replaced or refinanced except as otherwise permitted by Section 6.1(f);


 


(l)                                     Liens securing (i) Indebtedness permitted pursuant to Section 6.1(g),
provided, any such Lien shall encumber only the asset acquired,
constructed or improved with the proceeds of such Indebtedness and (ii) Indebtedness
permitted pursuant to Section 6.1(n), provided any such Lien shall
encumber only the facility with is the subject of such Capital Lease;


 


(m)                               Liens securing Indebtedness permitted under Section 6.1(l);  provided that such Liens are of a type described in Section 6.2(l)(i) and
are not created in contemplation of or in connection with such Person becoming
a Subsidiary, such Liens will not apply to any other property of Holdings or
any of its Subsidiaries, and such Liens will secure only those obligations
secured by such Liens on the date such Person becomes a Subsidiary; and


 


(n)                                 Liens securing Indebtedness permitted under Section 6.1(j) or
6.1(o).


 


6.3                               Sales
and Leasebacks.  Each of
Holdings and Company shall not, and shall not permit any of its Subsidiaries to
directly or indirectly, become or remain liable as lessee or as a guarantor or
other surety with respect to any lease, whether an operating lease or a Capital
Lease, of any property (whether real, personal or mixed), whether now owned or
hereafter acquired, (a) which Holdings or any of its Subsidiaries has sold
or transferred or is to sell or transfer to any other Person (other than
Holdings or any of its Subsidiaries) or (b) which Holdings or any of its
Subsidiaries intends to use for substantially the same purpose as any other
property which has been or is to be sold or transferred by such Credit Party to
any Person (other than Holdings or any of its Subsidiaries) in connection with
such lease; provided that Company and its Subsidiaries may (i) become
and remain liable as lessee, guarantor or other surety with respect to any such
lease which is a Capital Lease permitted pursuant to Section 6.1(g), and (ii) so
long as no Default or Event of Default has occurred or is continuing or shall
be caused thereby, sale-leaseback transactions in respect of up to any manufacturing
Facilities owned by Company as of the Closing Date; provided, further,
that (A) the material terms and conditions of such sale-leaseback
transaction (including any Capital Lease in connection with such transaction)
shall be reasonably satisfactory to the Administrative Agent, (B) Collateral
Agent is granted a valid First Priority or Second Priority Lien (in accordance
with the priorities set forth in the Intercreditor Agreement) in Company’s
leasehold interest in connection with such transaction, (C) the lessor (or
lenders under any Capital Lease) in connection with such transaction shall
agree to provide Collateral Agent access to the Collateral located at such
facility pursuant to an agreement reasonably satisfactory to Administrative
Agent and the Collateral Agent (the terms of which shall include subordination
and non-disturbance provisions with respect to any such Collateral, and other
terms as may be reasonably required by Administrative Agent or the Collateral
Agent), (D) the amount of consideration payable to Company or its
Subsidiaries (and the aggregate principal amount of Indebtedness in respect of
any Capital Leases) in any such transaction shall not exceed the fair market
value of any such facility (determined in good faith by the board of directors
of Company (or similar governing body)), and shall not exceed $30,000,000 in
the 


 


75

















 


aggregate and (E) the Net Asset Sale Proceeds with respect to any
such Capital Lease shall be applied to repay Indebtedness to the extent
required pursuant to Section 2.14(b).


 


6.4                               No
Further Negative Pledges. 
Except (i) pursuant to this Agreement, (ii) pursuant to the
terms of Indebtedness permitted under Section 6.1(h), 6.1(j), 6.1(k) or
6.1(o), (iii) with respect to specific property encumbered to secure
payment of particular Indebtedness or to be sold pursuant to an executed
agreement with respect to a permitted Asset Sale, (iv) pursuant to
customary non-assignment or no-subletting clauses in leases, licenses or
contracts entered into in the ordinary course of business, which restrict only
the assignment of such lease, license or contract, as applicable, or (v) in
connection with purchase money financing or Capital Leases permitted under Section 6.1(g),
6.1(l) or 6.1(n) (in each case provided the prohibition applies only
to the asset being acquired or constructed, or which is the subject of such
Capital Lease), each of Holdings and Company shall not, and shall not permit
any of its Subsidiaries to, enter into any agreement prohibiting the creation
or assumption of any Lien upon any of its properties or assets, whether now
owned or hereafter acquired.


 


6.5                               Restricted
Payments.  Each of
Holdings and Company shall not, and shall not permit any of its Subsidiaries or
Affiliates through any manner or means or through any other Person to, directly
or indirectly, declare, order, pay, make or set apart, or agree to declare,
order, pay, make or set apart, or agree to declare, order, pay, make or set
apart, any sum for any Restricted Payment except that:


 


(a)                                  Subsidiaries of Company may make Restricted Payments (i) to
Company or to any parent entity of such Subsidiary which is a wholly-owned
Guarantor Subsidiary and (ii) on a pro rata basis to the equity holders of
any other Guarantor Subsidiary;


 


(b)                                 (i) so long as no Default or Event of Default shall have
occurred and be continuing or shall be caused thereby, Company and its
Subsidiaries may make prepayments and regularly scheduled payments of principal
and interest in respect of any Indebtedness permitted under Sections 6.1(b), (ii) Company
and its Subsidiaries may make scheduled payments and mandatory prepayments of
principal, and regularly scheduled payments of interest in respect of and, so
long as no Default or Event of Default shall have occurred and be continuing,
voluntary repayments of, any Indebtedness permitted under Section 6.1(h), (iii) Company
and its Subsidiaries may make mandatory prepayments and regularly scheduled
payments of principal and interest in respect of any Indebtedness permitted
under Section 6.1(k) (to the extent constituting subordinated
Indebtedness) or 6.1(n), but only to the extent such payments are permitted by
the terms, and subordination provisions (if any) applicable to, such
Indebtedness, and (iv) Company and its Subsidiaries may make payments in
respect of guarantees permitted under Section 6.1(e) to the extent
the Indebtedness guaranteed thereby is permitted to be paid under this Section 6.5
(in each case under the foregoing subclauses (i), (ii) and (iii) in
accordance with the terms of, and only to the extent required by, and subject
to the subordination provisions contained in, the indenture or other agreement
pursuant to which such Indebtedness as issued);


 


76














 


(c)                                  Company may make Restricted Payments to Holdings to the
extent reasonably necessary to permit Holdings (in each case so long as
Holdings applies the amount of any such Restricted Payment for such purpose
within five (5) days of receipt of such amount) (i) to pay general
administrative and corporate overhead costs and expenses (including, without
limitation, expenses arising by virtue of Holdings’ status as a public company
(including fees and expenses related to filings with the Securities and
Exchange Commission, roadshow expenses, printing expenses and fees and expenses
of attorneys and auditors)), (ii) so long as no Default or Event of
Default, in each case, in respect of Section 8.1(a), 8.1(f) or 8.1(g) shall
have occurred and be continuing or shall be caused thereby, to pay the fees and
expenses to Sponsor required to be paid under the Management Services
Agreement, as in effect on December 16, 2004 or after giving effect to any
amendment, restatement or other modification thereto in accordance with Section 6.15(a) hereof,
(iii) to discharge the consolidated tax liabilities of Holdings and its
Subsidiaries and (iv) so long as no Default or Event of Default shall have
occurred and be continuing or shall be caused thereby, to allow Holdings to
repurchase shares of, or options to purchase shares of, Capital Stock of
Holdings from employees, officers or directors of Holdings, Company or any
Subsidiaries thereof in any aggregate amount not to exceed $1,000,000 in any
calendar year or $5,000,000 in the aggregate since the Closing Date;


 


(d)                                 (i) Company may make Restricted Payments to Holdings in
an aggregate amount not to exceed the Restricted Payment Amount (measured on
the date of such Restricted Payment); provided that, notwithstanding the
foregoing, in any four Fiscal Quarter period, the Company may make Restricted
Payments to Holdings in an amount not to exceed the Periodic Dividend Amount;
provided further, that, in any case, any Restricted Payment under this Section 6.5(d)(i) may
only be made so long as (w) no Default or Event of Default has occurred or
is continuing or shall be caused thereby after giving effect to such Restricted
Payment, (x) after giving effect to such Restricted Payment, Holdings and
its Subsidiaries shall have satisfied the RP Conditions, (y) to the extent
Consolidated Adjusted EBITDA for the Test Period most recently ended prior to
such Restricted Payment is less than or equal to $40,000,000, after giving
effect to such Restricted Payment, the total amount of Restricted Payments made
pursuant to this Section 6.5(d)(i) during the Fiscal Quarter in which
the subject Restricted Payment is to be paid and the three Fiscal Quarters most
recently ended does not exceed any applicable Maximum Restricted Payment
Amount, and (z) a Section 6.5(d) Certificate has been delivered;
and (ii) Holdings may make Restricted Payments in an amount equal to the
actual amount of Restricted Payments made by Company to Holdings pursuant to Section 6.5(d)(i) that
have not previously been distributed by Holdings, so long as no Default or
Event of Default shall have occurred and be continuing or shall be caused
thereby; provided, however, that notwithstanding anything to the contrary
contained in this Section 6.5(d), this Section 6.5(d)(ii) shall
not prohibit the payment of any dividend within 60 days after the date of
declaration of such dividend if such dividend was permitted under this Section 6.5(d)(ii) on
the date of declaration;


 


(e)                                  (i) so long as no Default or Event of Default, in each
case, in respect of Sections 8.1(a), 8.1(f) or 8.1(g) shall have
occurred and be continuing or shall be caused thereby, Holdings may make
Restricted Payments to Sponsor to the extent of Restricted Payments received by
Holdings from Company pursuant to Sections 6.5(c)(ii) and (ii) so
long as no Default or Event of Default shall have occurred and be continuing or
shall be caused thereby, Holdings 


 


77

















 


may make Restricted Payments (x) as described in Section 6.5(c)(iv) and
(y) in respect of Indebtedness permitted by Section 6.1(m) and
in connection with the redemption or replacement of any preferred Capital Stock
of Holdings described in Section 6.1(m);


 


(f)                                    additional Restricted Payments in an aggregate amount not to
exceed at any time outstanding $10,000,000 (minus any Investments made pursuant
to Section 6.7(l)), if no Default or Event of Default has occurred or is
continuing or would result therefrom; provided that any Restricted Payment made
pursuant this Section 6.5(f) may not subsequently be characterized as
a Restricted Payment made pursuant to any other provision of this Agreement;
and


 


(g)                                 if no Default or Event of Default has occurred or is
continuing or would result therefrom, additional Restricted Payments in an
aggregate amount not to exceed $25,000,000, which Restricted Payments are
funded exclusively by Holdings Equity Proceeds that have not been applied to
any other purpose; provided that any Restricted Payment made pursuant this Section 6.5(g) may
not subsequently be characterized as a Restricted Payment made pursuant to any
other provision of this Agreement.


 


6.6                               Restrictions
on Subsidiary Distributions.  Each of Holdings and Company shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any Subsidiary of
Company to (a) pay dividends or make any other distributions on any of
such Subsidiary’s Capital Stock owned by Company or by any other Subsidiary of
Company, (b) repay or prepay any Indebtedness owed by such Subsidiary to
Company or to any other Subsidiary of Company, (c) make loans or advances
to Company or to any other Subsidiary of Company, or (d) transfer any of
its property or assets to Company or to any other Subsidiary of Company other
than restrictions (i) existing under this Agreement or the Revolving
Credit Documents (as in effect on the Closing Date), (ii) in agreements
evidencing Indebtedness permitted by Sections 6.1(g) and 6.1(l) that
impose restrictions on the property so acquired, (iii) by reason of
customary provisions restricting assignments, subletting or other transfers
contained in leases, licenses, Joint Venture agreements and similar agreements
entered into in the ordinary course of business, (iv) restrictions in
agreements evidencing Indebtedness secured by Liens permitted by Section 6.2(m) that
impose restrictions on the property securing such Indebtedness, (v) customary
restrictions on assets that are the subject of an Asset Sale permitted by Section 6.9
or a Capital Lease permitted by Section 6.1(n) and (vi) in
agreements evidencing Indebtedness permitted by Section 6.1(h) or
6.1(k), in each case, so long as such restrictions are not more restrictive,
taken as a whole, than the restrictions set forth in this Agreement.


 


6.7                               Investments.  Each of Holdings and Company shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly, make or
own any Investment in any Person, including without limitation any Joint
Venture, except:


 


78

















 


(a)                                  Investments in Cash and Cash Equivalents;


 


(b)                                 Investments by Holdings in Company;


 


(c)                                  Investments made by Company or any of its Subsidiaries in
Subsidiary Guarantors which are wholly-owned Subsidiaries of Company;


 


(d)                                 Investments received by Company or any of its Subsidiaries in
connection with the bankruptcy or reorganization of, or settlement of
delinquent accounts and disputes with, customers or suppliers of such Person,
in each case in the ordinary course of business;


 


(e)                                  accounts receivable arising, and trade credit granted, in the
ordinary course of business of Company and its Subsidiaries, and any Securities
received by Company or any of its Subsidiaries in satisfaction or partial
satisfaction thereof from financially troubled account debtors to the extent
reasonably necessary in order to prevent or limit loss, and any prepayments and
other credits to suppliers made in the ordinary course of business;


 


(f)                                    intercompany loans to the extent permitted under Section 6.1(b);


 


(g)                                 Consolidated Capital Expenditures by Company or any of its
Subsidiaries permitted by Section 6.8(b) of the Revolving Credit
Facility;


 


(h)                                 loans and advances by Company or any of its Subsidiaries to
employees of Company and its Subsidiaries made in the ordinary course of
business in an aggregate principal amount not to exceed $2,000,000 at any time
outstanding;


 


(i)                                     Investments by Company or any of its Subsidiaries made in
connection with Permitted Acquisitions permitted pursuant to Section 6.9(d);


 


(j)                                     Investments by Company or any of its Subsidiaries
constituting non-Cash consideration received by Company and its Subsidiaries in
connection with permitted Asset Sales pursuant to subsection 6.9(c);


 


(k)                                  Company and its Subsidiaries may continue to own the
Investments owned by them as of the Closing Date and described in
Schedule 6.7;


 


(l)                                     other Investments by Company or any of its Subsidiaries in an
aggregate amount not to exceed at any time outstanding $10,000,000 (minus any
Restricted Payments 


 


79

















 


made pursuant to Section 6.5(f)), if no Default or Event
of Default has occurred or is continuing or would result therefrom; and


 


(m)                               additional Investments by Company or any of its Subsidiaries
in an aggregate amount not to exceed the Restricted Payment Amount so long as (i) no
Default or Event of Default has occurred or is continuing or shall be caused
thereby after giving effect to such Investment and (ii) after giving
effect to such Investment, the Company and its Subsidiaries shall have
satisfied the Investment Conditions.


 


Notwithstanding the foregoing, in no event shall any Credit
Party make any Investment which results in or facilitates in any manner any
Restricted Payment not otherwise permitted under the terms of Section 6.5.


 


6.8                               Calculations.


 


(a)                                  [RESERVED]


 


(b)                                 [RESERVED]


 


(c)                                  Certain Calculations.


 


(i)                                     With respect to any period during which a Permitted Acquisition
or an Asset Sale has occurred (each, a “Subject Transaction”), for purposes of determining the Leverage Ratio calculation
in Section 6.1(k), Consolidated Adjusted EBITDA and the components of
Consolidated Fixed Charges, as applicable, shall be calculated with respect to
such period on a pro forma basis (including pro forma adjustments arising out
of events which are directly attributable to a specific transaction, are
factually supportable and are expected to have a continuing impact, in each case
determined on a basis consistent with Article 11 of Regulation S-X
promulgated under the Securities Act and as interpreted by the staff of the
Securities and Exchange Commission, which would include cost savings resulting
from head count reduction, closure of Facilities and similar restructuring
charges, which pro forma adjustments shall be certified by the chief financial
officer of Company) using the historical audited financial statements of any
business so acquired or to be acquired or sold or to be sold and the
consolidated financial statements of Holdings and its Subsidiaries which shall
be reformulated as if such Subject Transaction, and any Indebtedness incurred
or repaid in connection therewith, had been consummated or incurred or repaid
at the beginning of such period.


 


80

















 


(ii)                                  With respect to any period commencing prior to the Closing
Date, Consolidated Adjusted EBITDA shall be calculated with respect to the
portion of such period prior to the Closing Date based on the historical
Consolidated Adjusted EBITDA of the Company during such time, Consolidated
Capital Expenditures shall be calculated with respect to the portion of such
period prior to the Closing Date based on the historical Consolidated Capital
Expenditures of the Company during such time, and the other components of
Consolidated Fixed Charges (other than Consolidated Interest Expense) shall be
calculated with respect to the portion of such period prior to the Closing Date
on a pro forma basis as if the Closing Date occurred on the first day of such
period.


 


(iii)                               With respect to any period commencing prior to the Closing
Date, Consolidated Interest Expense shall be calculated with respect to the
portion of such period prior to the Closing Date on a pro forma basis as if the
Closing Date occurred on the first day of such period (and assuming that the
Indebtedness incurred on the Closing Date was incurred on the first day of such
period and, such Indebtedness bears interest during the portion of such period
prior to the Closing Date at the weighted average of the interest rates
applicable to outstanding Indebtedness during the portion of such period on and
after the Closing Date and that no Indebtedness was repaid during the portion
of such period prior to the Closing Date).


 


6.9                               Fundamental Changes; Asset
Dispositions; Acquisitions.  Each of Holdings and Company shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly, enter into
any transaction of merger or consolidation, or liquidate, wind-up or dissolve
itself (or suffer any liquidation or dissolution), or convey, sell, lease or
sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of,
in one transaction or a series of transactions, all or any part of its
business, assets or property of any kind whatsoever, whether real, personal or
mixed and whether tangible or intangible, whether now owned or hereafter
acquired, or acquire by purchase or otherwise the business, or all or
substantially all of the property or fixed assets of, or stock or other
evidence of beneficial ownership of, any Person or any division or line of
business or other business unit of any Person, except:


 


(a)                                  any Subsidiary of Holdings may be merged with or into Company
or with or into any wholly-owned Guarantor Subsidiary of Company, or be
liquidated, wound up or dissolved, or all or any part of its business, property
or assets may be conveyed, sold, leased, transferred or otherwise disposed of,
in one transaction or a series of transactions, to Company or any wholly-owned
Guarantor Subsidiary of Company; provided, in the case of such a merger,
Company or such wholly-owned Guarantor Subsidiary of Company, as applicable
shall be the continuing or surviving Person;


 


81

















 


(b)                                 sales or other dispositions of assets that do not constitute
Asset Sales;


 


(c)                                  Asset Sales, the proceeds of which (valued at the principal
amount thereof in the case of non-Cash proceeds consisting of notes or other debt
Securities and valued at fair market value in the case of other non-Cash
proceeds) (i) do not exceed $5,000,000 in the aggregate in any calendar
year and (ii) when aggregated with the proceeds of all other Asset Sales,
do not exceed $15,000,000 in the aggregate from the Closing Date to the date of
determination; provided (1) the consideration received for such
assets shall be in an amount at least equal to the fair market value thereof
(and in respect of a transaction of greater than $2,500,000, as determined in
good faith by the board of directors of Company (or similar governing body)), (2) no
less than 80% thereof shall be paid in Cash, and (3) the Net Asset Sale
Proceeds thereof shall be applied as required by Section 2.13(a);


 


(d)                                 Permitted Acquisitions, the consideration for which
constitutes either (i) common Capital Stock of Holdings or (ii) (x) no
more than $20,000,000 in the aggregate in any calendar year unless (and subject
to clause (y) below) before and after giving effect to any such Permitted
Acquisitions the Fixed Charge Coverage Ratio is at least 1.0 to 1.0 for the
four Fiscal Quarter period most recently ended, calculated to give effect to
such Permitted Acquisition in accordance with Section 6.8(c) as if
such Permitted Acquisition occurred on the first day of such four Fiscal
Quarter period, as demonstrated in a Fixed Charge Coverage Compliance
Certificate delivered to the Administrative Agent prior to such Permitted
Acquisition, and (y) no more than $60,000,000 in the aggregate from the Closing
Date;


 


(e)                                  Investments made in accordance with Section 6.7; and


 


(f)                                    sale and leaseback transactions permitted pursuant to Section 6.3.


 


6.10                        Disposal of Subsidiary Interests.  Each of Holdings and Company shall not, and
shall not permit any of its Subsidiaries to (a) directly or indirectly
issue, sell, assign, pledge or otherwise encumber or dispose of any Capital
Stock of any of its Subsidiaries, except to qualify directors if required by
applicable law or (b) permit any of its Subsidiaries directly or
indirectly to issue, sell, assign, pledge or otherwise encumber or dispose of
any Capital Stock of any of its Subsidiaries, except (i) Company may issue
Capital Stock to Holdings, (ii) Subsidiaries may issue Capital Stock to
Company or to a Guarantor Subsidiary of Company (subject to the restrictions on
such disposition otherwise imposed under Section 6.9) or to qualify
directors if required by applicable law and (iii) Company or any
Subsidiary may sell or otherwise dispose of the Capital Stock of its
Subsidiaries in an Asset Sale permitted by Section 6.9.


 


6.11                        Fiscal Year.  Each of Holdings and Company shall not, and
shall not permit any of its Subsidiaries to, change its Fiscal Year-end from December 31;
provided, that the Fiscal Year-end of Holdings and its Subsidiaries may
be changed to the end of any Fiscal Quarter with the prior written consent of,
and following receipt of any information requested by, 


 


82

















 


Administrative Agent (including, without limitation, reconciliation
statements for the immediately preceding three years described in Section 5.1(e)).


 


6.12                        Transactions with Shareholders
and Affiliates.  Each of
Holdings and Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, enter into or permit to exist any transaction
(including the purchase, sale, lease or exchange of any property or the
rendering of any service or the making of any loan) with any holder of 10% or
more of any class of Capital Stock of Holdings or any of its Subsidiaries or
with any Affiliate of Holdings or of any such holder, on terms that are less
favorable to Holdings or that Subsidiary, as the case may be, than those that
might be obtained at the time from a Person who is not such a holder or
Affiliate; provided, the foregoing restriction shall not apply to (a) any
transaction expressly permitted under this Agreement; (b) reasonable and
customary fees paid to, and customary indemnification of, members of the board
of directors (or similar governing body) of Holdings and its Subsidiaries; (c) compensation
arrangements for officers and other employees of Holdings and its Subsidiaries
entered into in the ordinary course of business; (d) transactions
described in Schedule 6.12; and (e) any transaction between Credit
Parties.


 


6.13                        Conduct of Business.  From and after the Closing Date, each of
Holdings and Company shall not, and shall not permit any of its Subsidiaries
to, engage in any business other than (i) the businesses engaged in by Company
on the Closing Date and similar or related businesses and (ii) such other
lines of business as may be consented to by Requisite Lenders.


 


6.14                        Permitted Activities of Holdings.  Holdings shall not (a) incur, directly
or indirectly, any Indebtedness other than the Indebtedness (i) under the
Credit Documents, (ii) under the Revolving Credit Documents and (iii) permitted
by Section 6.1(m); (b) create or suffer to exist any Lien upon any
property or assets now owned or hereafter acquired by it other than the Liens
created under the Collateral Documents to which it is a party; (c) engage
in any business or activity or own any assets other than (i) holding 100%
of the Capital Stock of Company; (ii) performing its obligations and
activities incidental thereto under the Credit Documents, and to the extent not
inconsistent therewith, the Revolving Credit Documents; (iii) making
Restricted Payments to the extent permitted by Section 6.5 of this
Agreement and Section 6.5 of the Revolving Credit Facility; (iv) making
Investments to the extent permitted by Section 6.7 of this Agreement and Section 6.7
of the Revolving Credit Facility; (v) issuances of its Capital Stock; (vi) conducting
activities arising by virtue of its status as a public company, including
without limitation, compliance with its reporting obligations and other
requirements applicable to public companies; and (vii) retaining Cash in a
deposit account subject to a Blocked Account Agreement in the amount of any
Restricted Payments received from the Company pursuant to Section 6.5(d)(i);
(d) consolidate with or merge with or into, or convey, transfer or lease
all or substantially all its assets to, any Person; (e) sell or otherwise
dispose of any Capital Stock of any of its Subsidiaries; (f) create or acquire
any Subsidiary or make or own any Investment in any Person other than Company;
or (g) fail to hold itself out to the public as a legal entity separate
and distinct from all other Persons.


 


6.15                        Amendments or Waivers of Certain
Agreements.


 


83

















 


(a)                                  Each of Holdings and Company shall not, and shall not permit
any of its Subsidiaries to, terminate or agree to any amendment, restatement,
supplement or other modification to, or waiver of, any of its rights under any
Revolving Credit Document, any Organizational Document or the Management
Services Agreement, or make any payment consistent with an amendment thereof or
change thereto (which amendment or other modification, in the case of (i) an
Organizational Document or any Revolving Credit Document, is adverse in any
material respect to the rights or interests of the Lenders (provided
that with respect to any termination, amendment, restatement, supplement or
other modification to, or waiver of any Revolving Loan Document, none of the
following amendments shall be deemed adverse for purposes of this clause (i): (A) any
waiver of any default or event of default or any other waiver or amendment
permitting or increasing (or having the effect of permitting or increasing)
borrowing availability under the Borrowing Base (without increasing the
Revolving Loan Commitments (as defined in the Revolving Credit Facility)), (B) payment
of customary fees in connection with any waiver or amendment, or (C) any
amendment implementing incremental or additional loans and/or commitments under
the Revolving Loan Documents to the extent the Indebtedness in respect thereof
is permitted under Section 6.1) and (ii) the Management Services
Agreement, involves the imposition of additional fees or any increase in fees
payable thereunder (other than as set forth in this Section 6.15) or is
adverse in any respect to the rights or interests of the Lenders), without in
each case obtaining the prior written consent of Requisite Lenders to such
amendment, restatement, supplement or other modification or waiver.  Each of Holdings and Company shall not, and
shall not permit any of its Subsidiaries to, amend or otherwise change the
terms of any Indebtedness permitted to be incurred under Section 6.1 which
is subordinated to the Obligations, or make any payment consistent with an
amendment thereof or change thereto, if the effect of such amendment or change
is to increase the interest rate on or fees in respect of such Indebtedness,
change (to earlier dates) any dates upon which payments of principal or
interest are due thereon, change any event of default or condition to an event
of default with respect thereto (other than to eliminate any such event of
default or increase any grace period related thereto), change the redemption,
prepayment or defeasance provisions thereof, change the subordination
provisions thereof (or of any guaranty thereof), or change any collateral
therefor (other than to release such collateral), or if the effect of such
amendment or change, together with all other amendments or changes made, is to
increase materially the obligations of the obligor thereunder or to confer any
additional rights on the holders of such Indebtedness (or a trustee or other
representative on their behalf) which would be adverse to Holdings or Company,
any of their Subsidiaries, or Lenders. 
Notwithstanding the foregoing, this Section 6.15 shall not apply to
any amendment to the Management Services Agreement, or the termination thereof,
executed or made in connection with a Qualifying IPO; provided, that the
payments made in connection therewith shall not exceed the Qualifying IPO
Payment.


 


6.16                        Limitation
on Payments Relating to Other Debt(a)                  . 
Each of Holdings and Company shall
not, and shall not permit any of its Subsidiaries through any manner or means
or through any other Person to, directly or indirectly, declare, order, make or
offer to make, any prepayment, repurchase or redemption of, or otherwise
defease, the Indebtedness permitted to be incurred under Section 6.1(k) (such
Indebtedness, “Other Debt”), or
segregate funds for any such prepayment, repurchase, redemption or defeasance,
or enter into any derivative or other transaction with any financial
institution, commodities or stock exchange or clearinghouse (a 


 


84

















 


“Derivatives
Counterparty”)
obligating Holdings, the Company or any Subsidiary to make payments to such
Derivatives Counterparty as a result of any change in market value of Other
Debt, other than (a) any prepayment, repurchase or redemption of Other
Debt pursuant to a Permitted Refinancing thereof and (b) prepayments,
repurchases or redemptions of Other Debt in an aggregate amount not to exceed
the Restricted Payment Amount so long as (i) no Default or Event of
Default has occurred or is continuing or shall be caused thereby after giving
effect to such payment and (ii) after giving effect to such payment, the
Company and its Subsidiaries shall have satisfied the Investment
Conditions.  Notwithstanding anything to
the contrary contained in this Agreement, the Credit Parties are permitted to
redeem the Senior Notes pursuant to the Qualifying Senior Notes
Redemption.  Notwithstanding anything to
the contrary contained in this Agreement, Holdings is permitted to prepay,
repurchase or redeem Other Debt utilizing Holdings Equity Proceeds that have
not been applied to any other purpose, if no Default or Event of Default has
occurred or is continuing or would result therefrom; provided that any prepayment,
repurchase or redemption or Other Debt pursuant to this sentence may not
subsequently be characterized as having been made pursuant to any other
provision of this Agreement.


 


SECTION 7.                            GUARANTY


 


7.1                               Guaranty
of the Obligations.  Subject to
the provisions of Section 7.2, Guarantors jointly and severally hereby
irrevocably and unconditionally guaranty to the Beneficiaries the due and
punctual payment in full of all Obligations when the same shall become due,
whether at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise (including amounts that would become due but for the
operation of the automatic stay under Section 362(a) of the
Bankruptcy Code, 11 U.S.C. § 362(a)) (collectively, the “Guaranteed Obligations”).


 


7.2                               Contribution
by Guarantors.  All
Guarantors desire to allocate among themselves (collectively, the “Contributing Guarantors”), in a fair
and equitable manner, their obligations arising under this Guaranty.  Accordingly, in the event any payment or
distribution is made on any date by a Guarantor (a “Funding Guarantor”) under this Guaranty such
that its Aggregate Payments exceeds its Fair Share as of such date, such
Funding Guarantor shall be entitled to a contribution from each of the other
Contributing Guarantors in an amount sufficient to cause each Contributing
Guarantor’s Aggregate Payments to equal its Fair Share as of such date.  “Fair Share” means, with respect to a
Contributing Guarantor as of any date of determination, an amount equal to (a) the
ratio of (i) the Fair Share Contribution Amount with respect to such
Contributing Guarantor to (ii) the aggregate of the Fair Share
Contribution Amounts with respect to all Contributing Guarantors multiplied by (b) the
aggregate amount paid or distributed on or before such date by all Funding
Guarantors under this Guaranty in respect of the obligations Guaranteed.  “Fair Share Contribution Amount” means, with respect to a
Contributing Guarantor as of any date of determination, the maximum aggregate
amount of the obligations of such Contributing Guarantor under this Guaranty
that would not render its obligations hereunder or thereunder subject to
avoidance as a fraudulent transfer or conveyance under Section 548 of
Title 11 of the United States Code or any comparable applicable provisions 


 


85

















 


of state law; provided, solely for purposes of calculating the “Fair Share Contribution Amount” with respect
to any Contributing Guarantor for purposes of this Section 7.2, any assets
or liabilities of such Contributing Guarantor arising by virtue of any rights
to subrogation, reimbursement or indemnification or any rights to or
obligations of contribution hereunder shall not be considered as assets or
liabilities of such Contributing Guarantor. 
“Aggregate Payments” means, with
respect to a Contributing Guarantor as of any date of determination, an amount
equal to (1) the aggregate amount of all payments and distributions made
on or before such date by such Contributing Guarantor in respect of this
Guaranty (including, without limitation, in respect of this Section 7.2),
minus (2) the aggregate amount of all payments received on or before such
date by such Contributing Guarantor from the other Contributing Guarantors as
contributions under this Section 7.2. 
The amounts payable as contributions hereunder shall be determined as of
the date on which the related payment or distribution is made by the applicable
Funding Guarantor.  The allocation among
Contributing Guarantors of their obligations as set forth in this Section 7.2
shall not be construed in any way to limit the liability of any Contributing
Guarantor hereunder.  Each Guarantor is a
third party beneficiary to the contribution agreement set forth in this Section 7.2.


 


7.3                               Payment
by Guarantors.  Subject to Section 7.2,
Guarantors hereby jointly and severally agree, in furtherance of the foregoing
and not in limitation of any other right which any Beneficiary may have at law
or in equity against any Guarantor by virtue hereof, that upon the failure of
Company to pay any of the Guaranteed Obligations when and as the same shall
become due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including amounts that would become due but
for the operation of the automatic stay under Section 362(a) of the
Bankruptcy Code, 11 U.S.C. § 362(a)), Guarantors will upon
demand pay, or cause to be paid, in Cash, to Administrative Agent for the
ratable benefit of Beneficiaries, an amount equal to the sum of the unpaid
principal amount of all Guaranteed Obligations then due as aforesaid, accrued
and unpaid interest on such Guaranteed Obligations (including interest which,
but for Company’s becoming the subject of a case under the Bankruptcy Code, would
have accrued on such Guaranteed Obligations, whether or not a claim is allowed
against Company for such interest in the related bankruptcy case) and all other
Guaranteed Obligations then owed to Beneficiaries as aforesaid.


 


7.4                               Liability
of Guarantors Absolute.  Each
Guarantor agrees that its obligations hereunder are irrevocable, absolute,
independent and unconditional and shall not be affected by any circumstance
which constitutes a legal or equitable discharge of a guarantor or surety other
than payment in full of the Guaranteed Obligations.  In furtherance of the foregoing and without
limiting the generality thereof, each Guarantor agrees as follows:


 


(a)                                  this Guaranty is a guaranty of payment when due and not of
collectability.  This Guaranty is a primary
obligation of each Guarantor and not merely a contract of surety;


 


(b)                                 Administrative Agent may enforce this Guaranty upon the
occurrence and during the continuance of an Event of Default notwithstanding
the existence of any dispute


 


86














 


between Company and any Beneficiary with respect to the existence and
continuance of such Event of Default;


 


(c)           the
obligations of each Guarantor hereunder are independent of the obligations of
Company and the obligations of any other guarantor (including any other
Guarantor) of the obligations of Company, and a separate action or actions may
be brought and prosecuted against such Guarantor whether or not any action is
brought against Company or any of such other guarantors and whether or not
Company is joined in any such action or actions;


 


(d)           payment
by any Guarantor of a portion, but not all, of the Guaranteed Obligations shall
in no way limit, affect, modify or abridge any Guarantor’s liability for any
portion of the Guaranteed Obligations which has not been paid.  Without limiting the generality of the
foregoing, if Administrative Agent is awarded a judgment in any suit brought to
enforce any Guarantor’s covenant to pay a portion of the Guaranteed
Obligations, such judgment shall not be deemed to release such Guarantor from
its covenant to pay the portion of the Guaranteed Obligations that is not the
subject of such suit, and such judgment shall not, except to the extent
satisfied by such Guarantor, limit, affect, modify or abridge any other
Guarantor’s liability hereunder in respect of the Guaranteed Obligations;


 


(e)           any
Beneficiary, upon such terms as it deems appropriate, without notice or demand
and without affecting the validity or enforceability hereof or giving rise to
any reduction, limitation, impairment, discharge or termination of any
Guarantor’s liability hereunder, from time to time may (i) renew, extend,
accelerate, increase the rate of interest on, or otherwise change the time,
place, manner or terms of payment of the Guaranteed Obligations; (ii) settle,
compromise, release or discharge, or accept or refuse any offer of performance
with respect to, or substitutions for, the Guaranteed Obligations or any
agreement relating thereto and/or subordinate the payment of the same to the
payment of any other obligations; (iii) request and accept other
guaranties of the Guaranteed Obligations and take and hold security for the
payment hereof or the Guaranteed Obligations; (iv) release, surrender,
exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or
modify, with or without consideration, any security for payment of the
Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or
any other obligation of any Person (including any other Guarantor) with respect
to the Guaranteed Obligations; (v) enforce and apply any security now or
hereafter held by or for the benefit of such Beneficiary in respect hereof or
the Guaranteed Obligations and direct the order or manner of sale thereof, or
exercise any other right or remedy that such Beneficiary may have against any
such security, in each case as such Beneficiary in its discretion may determine
consistent herewith and any applicable security agreement, including
foreclosure on any such security pursuant to one or more judicial or
nonjudicial sales, whether or not every aspect of any such sale is commercially
reasonable, and even though such action operates to impair or extinguish any
right of reimbursement or subrogation or other right or remedy of any Guarantor
against Company or any security for the Guaranteed Obligations; and (vi) exercise
any other rights available to it under the Credit Documents; and


 


87

















 


(f)            this
Guaranty and the obligations of Guarantors hereunder shall be valid and
enforceable and shall not be subject to any reduction, limitation, impairment,
discharge or termination for any reason (other than payment in full of the
Guaranteed Obligations), including the occurrence of any of the following, whether
or not any Guarantor shall have had notice or knowledge of any of them: (i) any
failure or omission to assert or enforce an agreement or election not to assert
or enforce, or the stay or enjoining, by order of court, by operation of law or
otherwise, of the exercise or enforcement of, any claim or demand or any right,
power or remedy (whether arising under the Credit Documents, at law, in equity
or otherwise) with respect to the Guaranteed Obligations or any agreement
relating thereto, or with respect to any other guaranty of or security for the
payment of the Guaranteed Obligations; (ii) any rescission, waiver,
amendment or modification of, or any consent to departure from, any of the
terms or provisions (including provisions relating to events of default)
hereof, any of the other Credit Documents or any agreement or instrument
executed pursuant thereto, or of any other guaranty or security for the
Guaranteed Obligations, in each case whether or not in accordance with the
terms hereof or such Credit Document or any agreement relating to such other
guaranty or security; (iii) the Guaranteed Obligations, or any agreement
relating thereto, at any time being found to be illegal, invalid or
unenforceable in any respect; (iv) the application of payments received
from any source (other than payments received pursuant to the other Credit
Documents or from the proceeds of any security for the Guaranteed Obligations,
except to the extent such security also serves as collateral for indebtedness
other than the Guaranteed Obligations) to the payment of indebtedness other
than the Guaranteed Obligations, even though any Beneficiary might have elected
to apply such payment to any part or all of the Guaranteed Obligations; (v) any
Beneficiary’s consent to the change, reorganization or termination of the
corporate structure or existence of Holdings or any of its Subsidiaries and to
any corresponding restructuring of the Guaranteed Obligations; (vi) any
failure to perfect or continue perfection of a security interest in any collateral
which secures any of the Guaranteed Obligations; (vii) any defenses,
set-offs or counterclaims which Company may allege or assert against any
Beneficiary in respect of the Guaranteed Obligations, including failure of
consideration, breach of warranty, payment, statute of frauds, statute of
limitations, accord and satisfaction and usury; and (viii) any other act
or thing or omission, or delay to do any other act or thing, which may or might
in any manner or to any extent vary the risk of any Guarantor as an obligor in
respect of the Guaranteed Obligations.


 


7.5          Waivers by
Guarantors.  Each
Guarantor hereby waives, for the benefit of Beneficiaries: (a) any right
to require any Beneficiary, as a condition of payment or performance by such
Guarantor, to (i) proceed against Company, any other guarantor (including
any other Guarantor) of the Guaranteed Obligations or any other Person, (ii) proceed
against or exhaust any security held from Company, any such other guarantor or
any other Person, (iii) proceed against or have resort to any balance of
any deposit account or credit on the books of any Beneficiary in favor of
Company or any other Person, or (iv) pursue any other remedy in the power
of any Beneficiary whatsoever; (b) any defense arising by reason of the
incapacity, lack of authority or any disability or other defense of Company or
any other Guarantor including any defense based on or arising out of the lack
of validity or the unenforceability of the Guaranteed Obligations or any
agreement or instrument relating thereto or by reason of the cessation of the
liability of Company or any other Guarantor from any cause other than payment
in full of the Guaranteed Obligations; (c) any defense based upon any
statute or rule of law which provides that the obligation of a surety must
be neither larger in amount nor in other respects more 


 


88

















 


burdensome than that of the principal; (d) any defense based upon
any Beneficiary’s errors or omissions in the administration of the Guaranteed
Obligations, except behavior which amounts to bad faith; (e) (i) any
principles or provisions of law, statutory or otherwise, which are or might be
in conflict with the terms hereof and any legal or equitable discharge of such
Guarantor’s obligations hereunder, (ii) the benefit of any statute of
limitations affecting such Guarantor’s liability hereunder or the enforcement
hereof, (iii) any rights to set-offs, recoupments and counterclaims, and (iv) promptness,
diligence and any requirement that any Beneficiary protect, secure, perfect or
insure any security interest or lien or any property subject thereto; (f) notices,
demands, presentments, protests, notices of protest, notices of dishonor and
notices of any action or inaction, including acceptance hereof, notices of
default hereunder or any agreement or instrument related thereto, notices of
any renewal, extension or modification of the Guaranteed Obligations or any
agreement related thereto, notices of any extension of credit to Company and
notices of any of the matters referred to in Section 7.4 and any right to
consent to any thereof; and (g) any defenses or benefits that may be
derived from or afforded by law which limit the liability of or exonerate
guarantors or sureties, or which may conflict with the terms hereof.


 


7.6          Guarantors’
Rights of Subrogation, Contribution, etc.  Until the Guaranteed Obligations shall have
been indefeasibly paid in full and the Term Loan Commitments shall have
terminated, each Guarantor hereby waives and agrees not to assert any claim,
right or remedy, direct or indirect, that such Guarantor now has or may
hereafter have against Company or any other Guarantor or any of its assets in
connection with this Guaranty or the performance by such Guarantor of its
obligations hereunder, in each case whether such claim, right or remedy arises
in equity, under contract, by statute, under common law or otherwise and
including without limitation (a) any right of subrogation, reimbursement
or indemnification that such Guarantor now has or may hereafter have against
Company with respect to the Guaranteed Obligations, (b) any right to
enforce, or to participate in, any claim, right or remedy that any Beneficiary
now has or may hereafter have against Company, and (c) any benefit of, and
any right to participate in, any collateral or security now or hereafter held
by any Beneficiary.  In addition, until
the Guaranteed Obligations shall have been indefeasibly paid in full and the
Term Loan Commitments shall have terminated, each Guarantor shall withhold
exercise of any right of contribution such Guarantor may have against any other
guarantor (including any other Guarantor) of the Guaranteed Obligations,
including, without limitation, any such right of contribution as contemplated
by Section 7.2.  Each Guarantor
further agrees that, to the extent the waiver or agreement to withhold the
exercise of its rights of subrogation, reimbursement, indemnification and
contribution as set forth herein is found by a court of competent jurisdiction
to be void or voidable for any reason, any rights of subrogation, reimbursement
or indemnification such Guarantor may have against Company or against any
collateral or security, and any rights of contribution such Guarantor may have
against any such other guarantor, shall be junior and subordinate to any rights
any Beneficiary may have against Company, to all right, title and interest any
Beneficiary may have in any such collateral or security, and to any right any
Beneficiary may have against such other guarantor.  If any amount shall be paid to any Guarantor
on account of any such subrogation, reimbursement, indemnification or
contribution rights at any time when all Guaranteed Obligations shall not have
been finally and indefeasibly paid in full, such amount shall be held in trust
for Administrative Agent on behalf of Beneficiaries and shall forthwith be paid
over to Administrative Agent for the benefit of 


 


89

















 


Beneficiaries to be credited and applied against the Guaranteed
Obligations, whether matured or unmatured, in accordance with the terms hereof.


 


7.7          Subordination
of Other Obligations.  Any
Indebtedness of Company or any Guarantor now or hereafter held by any Guarantor
(the “Obligee Guarantor”) is hereby
subordinated in right of payment to the Guaranteed Obligations, and any such
indebtedness collected or received by the Obligee Guarantor after an Event of
Default has occurred and is continuing shall be held in trust for
Administrative Agent on behalf of Beneficiaries and shall forthwith be paid
over to Administrative Agent for the benefit of Beneficiaries to be credited
and applied against the Guaranteed Obligations but without affecting, impairing
or limiting in any manner the liability of the Obligee Guarantor under any
other provision hereof.


 


7.8          Continuing
Guaranty.  This
Guaranty is a continuing guaranty and shall remain in effect until all of the
Guaranteed Obligations shall have been paid in full and the Term Loan
Commitments shall have terminated.  Each
Guarantor hereby irrevocably waives any right to revoke this Guaranty as to
future transactions giving rise to any Guaranteed Obligations.


 


7.9          Authority
of Guarantors or Company.  It is
not necessary for any Beneficiary to inquire into the capacity or powers of any
Guarantor or Company or the officers, directors or any agents acting or
purporting to act on behalf of any of them.


 


7.10        Financial
Condition of Company.  Any
Credit Extension may be made to Company or continued from time to time without
notice to or authorization from any Guarantor regardless of the financial or
other condition of Company at the time of any such grant or continuation, as
the case may be.  No Beneficiary shall
have any obligation to disclose or discuss with any Guarantor its assessment,
or any Guarantor’s assessment, of the financial condition of Company.  Each Guarantor has adequate means to obtain
information from Company on a continuing basis concerning the financial
condition of Company and its ability to perform its obligations under the
Credit Documents, and each Guarantor assumes the responsibility for being and
keeping informed of the financial condition of Company and of all circumstances
bearing upon the risk of nonpayment of the Guaranteed Obligations.  Each Guarantor hereby waives and relinquishes
any duty on the part of any Beneficiary to disclose any matter, fact or thing
relating to the business, operations or conditions of Company now known or
hereafter known by any Beneficiary.


 


7.11        Bankruptcy, etc.  So long as
any Guaranteed Obligations remain outstanding, no Guarantor shall, without the
prior written consent of Administrative Agent acting pursuant to the
instructions of Requisite Lenders, commence or join with any other Person in
commencing any bankruptcy, reorganization or insolvency case or proceeding of
or against Company or any other Guarantor. 
The obligations of Guarantors hereunder shall not be reduced, limited,
impaired, discharged, deferred, suspended or terminated by any case or proceeding,
voluntary or involuntary, involving the bankruptcy, insolvency, receivership,
reorganization, liquidation or arrangement of Company or any other 


 


90

















 


Guarantor or by any defense which Company or any other
Guarantor may have by reason of the order, decree or decision of any court or
administrative body resulting from any such proceeding.


 


(b)           Each
Guarantor acknowledges and agrees that any interest on any portion of the
Guaranteed Obligations which accrues after the commencement of any case or
proceeding referred to in clause (a) above (or, if interest on any
portion of the Guaranteed Obligations ceases to accrue by operation of law by
reason of the commencement of such case or proceeding, such interest as would
have accrued on such portion of the Guaranteed Obligations if such case or
proceeding had not been commenced) shall be included in the Guaranteed
Obligations because it is the intention of Guarantors and Beneficiaries that
the Guaranteed Obligations which are guaranteed by Guarantors pursuant hereto
should be determined without regard to any rule of law or order which may
relieve Company of any portion of such Guaranteed Obligations.  Guarantors will permit any trustee in
bankruptcy, receiver, debtor in possession, assignee for the benefit of
creditors or similar person to pay Administrative Agent, or allow the claim of
Administrative Agent in respect of, any such interest accruing after the date
on which such case or proceeding is commenced.


 


(c)           In
the event that all or any portion of the Guaranteed Obligations are paid by
Company, the obligations of Guarantors hereunder shall continue and remain in
full force and effect or be reinstated, as the case may be, in the event that
all or any part of such payment(s) are rescinded or recovered directly or
indirectly from any Beneficiary as a preference, fraudulent transfer or
otherwise, and any such payments which are so rescinded or recovered shall
constitute Guaranteed Obligations for all purposes hereunder.


 


7.12        Discharge
of Guaranty Upon Sale of Guarantor.  If all of the Capital Stock of any Guarantor
(other than Holdings) or any of its successors in interest hereunder shall be
sold or otherwise disposed of (including by merger or consolidation) in accordance
with the terms and conditions hereof, the Guaranty of such Guarantor or such
successor in interest, as the case may be, hereunder shall automatically be
discharged and released without any further action by any Beneficiary or any
other Person effective as of the time of such Asset Sale.


 


SECTION 8.    EVENTS OF
DEFAULT


 


8.1          Events
of Default.  If any one
or more of the following conditions or events shall occur:


 


(a)           Failure
to Make Payments When Due.  Failure
by Company to pay (i) when due any principal of any Loan, whether at
stated maturity, by acceleration, by notice of voluntary prepayment, by
mandatory prepayment or otherwise or (ii) any interest on any Loan or any
fee or any other amount due hereunder within five (5) days after the date
due; or


 


91

















 


(b)           Default
in Other Agreements.  (i) Failure
of any Credit Party or any of their respective Subsidiaries to pay when due any
principal of or interest on or any other amount payable in respect of one or more
items of Indebtedness (other than Indebtedness referred to in Section 8.1(a))
in an individual principal amount of $5,000,000 or more or with an aggregate
principal amount of $10,000,000 or more, in each case beyond the grace period,
if any, provided therefor; or (ii) breach or default by any Credit Party
with respect to any other term (other than Section 6.8(a) of the
Revolving Credit Facility) of (1) one or more items of such Indebtedness
or (2) any loan agreement, mortgage, indenture or other agreement relating
to such item(s) of Indebtedness, or any other event or circumstance shall
occur, in each case beyond the grace period, if any, provided therefor, if the
effect of such breach or default or event or circumstance is to cause, or to
permit the holder or holders of that Indebtedness (or a trustee on behalf of
such holder or holders), to cause, that Indebtedness to become or be declared
due and payable (or redeemable) prior to its stated maturity or the stated
maturity of any underlying obligation, as the case may be, or to require an
offer to purchase or redeem such Indebtedness be made (other than any due on
sale provision with respect to any Indebtedness permitted to be repaid
hereunder and which is so repaid in full); or


 


(c)           Breach
of Certain Covenants.  Failure of any
Credit Party to perform or comply with any term or condition contained in
Sections 2.6, 2.14, 5.1(f), 5.1(g), 5.2(i), 5.14, 5.15 or 6; or


 


(d)           Breach
of Representations, etc.  Any
representation, warranty or certification made or deemed made by any Credit
Party in any Credit Document or in any statement or certificate at any time
given by any Credit Party or any of its Subsidiaries in writing pursuant hereto
or thereto or in connection herewith or therewith shall be false in any material
respect as of the date made or deemed made; or


 


(e)           Other
Defaults Under Credit Documents.  Any
Credit Party shall default in the performance of or compliance with any term
contained herein or any of the other Credit Documents, other than any such term
referred to in any other Section of this Section 8.1, and such
default shall not have been remedied or waived within thirty (30) days after
the earlier of (i) an officer of such Credit Party becoming aware of such
default or (ii) receipt by Company of notice from Administrative Agent or
any Lender of such default; or


 


(f)            Involuntary
Bankruptcy; Appointment of Receiver, etc.. 
(i) A court of competent jurisdiction shall enter a decree or order
for relief in respect of Holdings or any of its Subsidiaries in an involuntary
case under the Bankruptcy Code or under any other applicable bankruptcy,
insolvency or similar law now or hereafter in effect, which decree or order is
not stayed; or any other similar relief shall be granted under any applicable
federal or state law; or (ii) an involuntary case shall be commenced
against Holdings or any of its Subsidiaries under the Bankruptcy Code or under
any other applicable bankruptcy, insolvency or similar law now or hereafter in
effect; or a decree or order of a court having jurisdiction in the premises for
the appointment of a receiver, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over Holdings or any of its Subsidiaries,
or over all or a substantial part of its 


 


92

















 


property, shall have been entered; or there shall have
occurred the involuntary appointment of an interim receiver, trustee or other
custodian of Holdings or any of its Subsidiaries for all or a substantial part
of its property; or a warrant of attachment, execution or similar process shall
have been issued against any substantial part of the property of Holdings or
any of its Subsidiaries, and any such event described in this clause (ii) shall
continue for sixty (60) days without having been dismissed, bonded or
discharged; or


 


(g)           Voluntary
Bankruptcy; Appointment of Receiver, etc.. 
(i) Holdings or any of its Subsidiaries shall have an order for
relief entered with respect to it or shall commence a voluntary case under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar
law now or hereafter in effect, or shall consent to the entry of an order for
relief in an involuntary case, or to the conversion of an involuntary case to a
voluntary case, under any such law, or shall consent to the appointment of or
taking possession by a receiver, trustee or other custodian for all or a
substantial part of its property; or Holdings or any of its Subsidiaries shall
make any assignment for the benefit of creditors; or (ii) Holdings or any
of its Subsidiaries shall be unable, or shall fail generally, or shall admit in
writing its inability, to pay its debts as such debts become due; or the board
of directors (or similar governing body) of Holdings or any of its Subsidiaries
(or any committee thereof) shall adopt any resolution or otherwise authorize
any action to approve any of the actions referred to in this Section 8.1(g) or
in Section 8.1(f) above; or


 


(h)           Judgments
and Attachments.  Any money judgment,
writ or warrant of attachment or similar process involving (i) in any
individual case an amount in excess of $5,000,000 or (ii) in the aggregate
at any time an amount in excess of $10,000,000 (in either case to the extent
not adequately covered by insurance as to which a solvent and unaffiliated
insurance company has acknowledged coverage) shall be entered or filed against
Holdings or any of its Subsidiaries or any of their respective assets and shall
remain undischarged, unvacated, unbonded or unstayed for a period of sixty (60)
days (or in any event later than five (5) days prior to the date of any
proposed sale thereunder); or


 


(i)            Dissolution.  Any order, judgment or decree shall be
entered against any Credit Party decreeing the dissolution or split up of such
Credit Party; or


 


(j)            Employee
Benefit Plans.  (i) There shall
occur one or more ERISA Events or (ii) there shall exists any fact or
circumstance that results or reasonably could be expected to result in the
imposition of a Lien or security interest with respect to any Employee Benefit
Plan under Section 412(n) of the Internal Revenue Code or under
ERISA, in either case involving or that might reasonably be expected to involve
in any individual case an amount in excess of $5,000,000 or in the aggregate at
any time an amount in excess of $10,000,000; or


 


(k)           Change
of Control.  A Change of Control
shall occur; or


 


93

















 


(l)            Guaranties,
Collateral Documents and other Credit Documents.  At any time after the execution and delivery
thereof, (i) the Guaranty for any reason, other than the satisfaction in
full of all Obligations or upon the release of such Guaranty with respect to a
Subsidiary of the Company in connection with an Asset Sale permitted hereby,
shall cease to be in full force and effect (other than in accordance with its
terms) or shall be declared to be null and void or any Guarantor shall
repudiate its obligations thereunder, (ii) this Agreement or any
Collateral Document ceases to be in full force and effect (other than by reason
of a release of Collateral in accordance with the terms hereof or thereof or
the satisfaction in full of the Obligations in accordance with the terms
hereof) or shall be declared null and void, or Collateral Agent shall not have
or shall cease to have a valid and perfected Lien in any Collateral purported
to be covered by the Collateral Documents with the priority required by the
relevant Collateral Document, in each case for any reason other than the
failure of Collateral Agent or any Secured Party to take any action within its
control, or (iii) any Credit Party shall contest the validity or
enforceability of any Credit Document in writing or deny in writing that it has
any further liability, including with respect to future advances by Lenders,
under any Credit Document to which it is a party;


 


THEN, (1) upon the occurrence of any Event of Default
described in Section 8.1(f) or 8.1(g), automatically, and (2) upon
the occurrence of any other Event of Default, upon notice to Company by
Administrative Agent (which notice shall be given by Administrative Agent upon
the request of the Requisite Lenders), (A) the Term Loan Commitments, if
any, of each Lender having such Term Loan Commitments shall immediately
terminate; (B) each of the following shall immediately become due and
payable, in each case without presentment, demand, protest or other
requirements of any kind, all of which are hereby expressly waived by each
Credit Party: (I) the unpaid principal amount of and accrued interest on
the Loans and (II) all other Obligations; and (C) Administrative
Agent may cause Collateral Agent to enforce any and all Liens and security
interests created pursuant to Collateral Documents.


 


SECTION 9.    AGENTS


 


9.1          Appointment
of Agents.  Credit
Suisse is hereby appointed Administrative Agent and Collateral Agent hereunder
and under the other Credit Documents and each Lender hereby authorizes
Administrative Agent and Collateral Agent to act as its agent in each such
capacity in accordance with the terms hereof and the other Credit
Documents.  Credit Suisse is hereby
appointed Syndication Agent hereunder, and each Lender hereby authorizes
Syndication Agent to act as its agent in accordance with the terms hereof and
the other Credit Documents.  Credit
Suisse is hereby appointed Documentation Agent hereunder, and each Lender
hereby authorizes Documentation Agent to act as its agent in accordance with
the terms hereof and the other Credit Documents.  Each Agent hereby agrees to act upon the
express conditions contained herein and the other Credit Documents, as
applicable.  The provisions of this Section 9
are solely for the benefit of Agents and Lenders and no Credit Party shall have
any rights as a third party beneficiary of any of the provisions thereof.  In performing its functions and duties
hereunder, each Agent shall act solely as an agent of Lenders and does not
assume and shall not be deemed to have assumed any obligation towards or
relationship of agency or trust with or for Holdings or any of its
Subsidiaries.


 


94

















 


9.2          Powers
and Duties.  Each Lender
irrevocably authorizes each Agent to take such action on such Lender’s behalf
and to exercise such powers, rights and remedies hereunder and under the other
Credit Documents as are specifically delegated or granted to such Agent by the
terms hereof and thereof, together with such powers, rights and remedies as are
reasonably incidental thereto.  Each
Agent shall have only those duties and responsibilities that are expressly
specified herein and the other Credit Documents.  Each Lender irrevocably authorizes each of
the Administrative Agent and the Collateral Agent to execute and deliver the
Intercreditor Agreement and agrees to be bound by the provisions therein.  Each Agent may perform any and all of their
duties and exercise their rights and powers by or through any one or more
sub-agents appointed by such Agent.  Each
Agent and any such sub-agent may perform any and all its duties and exercise
its rights and powers through their respective Affiliates, and the respective
directors, officers, employees, agents and advisors of such Agent and such
Agent’s Affiliates.  The exculpatory
provisions of the Credit Documents shall apply to any such sub-agent and to the
Affiliates, directors, officers, employees, agents and advisors of such Agent
and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as Agent.  No Agent
shall have, by reason hereof or any of the other Credit Documents, a fiduciary
relationship in respect of any Lender; and nothing herein or any of the other
Credit Documents, expressed or implied, is intended to or shall be so construed
as to impose upon any Agent any obligations in respect hereof or any of the
other Credit Documents except as expressly set forth herein or therein.


 


9.3          General
Immunity.


 


(a)           No
Responsibility for Certain Matters. 
No Agent shall be responsible to any Lender for the execution,
effectiveness, genuineness, validity, enforceability, collectability or
sufficiency hereof or any other Credit Document or for any representations,
warranties, recitals or statements made herein or therein or made in any written
or oral statements or in any financial or other statements, instruments,
reports or certificates or any other documents furnished or made by any Agent
to Lenders or by or on behalf of any Credit Party to any Agent or any Lender in
connection with the Credit Documents and the transactions contemplated thereby
or for the financial condition or business affairs of any Credit Party or any
other Person liable for the payment of any Obligations, nor shall any Agent be
required to ascertain or inquire as to the performance or observance of any of
the terms, conditions, provisions, covenants or agreements contained in any of
the Credit Documents or as to the use of the proceeds of the Loans or as to the
existence or possible existence of any Event of Default or Default or to make
any disclosures with respect to the foregoing. 
No Agent shall be deemed to have knowledge of any Default or Event of
Default unless and until written notice thereof is given to such Agent by the
Borrower or a Lender.  Anything contained
herein to the contrary notwithstanding, Administrative Agent shall not have any
liability arising from confirmations of the amount of outstanding Loans or the
component amounts thereof.


 


(b)           Exculpatory
Provisions.  No Agent nor any of its
officers, partners, directors, employees or agents shall be liable to Lenders
for any action taken or omitted by any Agent under or in connection with any of
the Credit Documents except to the extent caused by 


 


95

















 


such Agent’s gross negligence or willful misconduct as
determined by a final non-appealable judgment of a court of competent
jurisdiction.  Each Agent shall be
entitled to refrain from any act or the taking of any action (including the
failure to take an action) in connection herewith or any of the other Credit
Documents or from the exercise of any power, discretion or authority vested in
it hereunder or thereunder unless and until such Agent shall have received
instructions in respect thereof from Requisite Lenders (or such other Lenders
as may be required to give such instructions under Section 10.5) and, upon
receipt of such instructions from Requisite Lenders (or such other Lenders, as
the case may be), such Agent shall be entitled to act or (where so instructed)
refrain from acting, or to exercise such power, discretion or authority, in
accordance with such instructions. 
Without prejudice to the generality of the foregoing, (i) each
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any communication, instrument or document believed by it to be genuine and
correct and to have been signed or sent by the proper Person or Persons, and
shall be entitled to rely and shall be protected in relying on opinions and
judgments of attorneys (who may be attorneys for Holdings and its
Subsidiaries), accountants, experts and other professional advisors selected by
it; and (ii) no Lender shall have any right of action whatsoever against
any Agent as a result of such Agent acting or (where so instructed) refraining
from acting hereunder or any of the other Credit Documents in accordance with
the instructions of Requisite Lenders (or such other Lenders as may be required
to give such instructions under Section 10.5).  Each Agent also may rely upon any statement
made to it orally or by telephone and believed by it to be made by the proper
Person, and shall not incur any liability for relying thereon.


 


9.4          Agents
Entitled to Act as Lender.  The agency hereby created shall in no way
impair or affect any of the rights and powers of, or impose any duties or
obligations upon, any Agent in its individual capacity as a Lender
hereunder.  With respect to its
participation in the Loans, each Agent shall have the same rights and powers
hereunder as any other Lender and may exercise the same as if it were not
performing the duties and functions delegated to it hereunder, and the term “Lender”
shall, unless the context clearly otherwise indicates, include each Agent in
its individual capacity.  Any Agent and
its Affiliates may accept deposits from, lend money to, own securities of, and
generally engage in any kind of banking, trust, financial advisory or other
business with Holdings or any of its Affiliates as if it were not performing
the duties specified herein, and may accept fees and other consideration from
Company for services in connection herewith and otherwise without having to
account for the same to Lenders.


 


9.5          Lenders’
Representations, Warranties and Acknowledgment.


 


(a)           Each
Lender represents and warrants that it has made its own independent
investigation of the financial condition and affairs of Holdings and its
Subsidiaries in connection with Credit Extensions hereunder and that it has
made and shall continue to make its own appraisal of the creditworthiness of
Holdings and its Subsidiaries.  No Agent
shall have any duty or responsibility, either initially or on a continuing
basis, to make any such investigation or any such appraisal on behalf of
Lenders or to provide any Lender with any credit or other information with
respect thereto, whether coming into its possession before the making of the


 


96














Loans or at any time or times thereafter, and no Agent shall have any
responsibility with respect to the accuracy of or the completeness of any
information provided to Lenders.


 


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


 


9.6          Right
to Indemnity.  Each Lender,
in proportion to its Pro Rata Share, severally agrees to indemnify each Agent,
to the extent that such Agent shall not have been reimbursed by any Credit
Party, for and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including counsel fees
and disbursements) or disbursements of any kind or nature whatsoever which may
be imposed on, incurred by or asserted against such Agent in exercising its
powers, rights and remedies or performing its duties hereunder or under the
other Credit Documents or otherwise in its capacity as such Agent in any way
relating to or arising out of this Agreement or the other Credit Documents; provided,
no Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from such Agent’s gross negligence or willful
misconduct as determined by a final non-appealable judgment of a court of
competent jurisdiction.  If any indemnity
furnished to any Agent for any purpose shall, in the opinion of such Agent, be
insufficient or become impaired, such Agent may call for additional indemnity
and cease, or not commence, to do the acts indemnified against until such
additional indemnity is furnished; provided, in no event shall this
sentence require any Lender to indemnify any Agent against any liability,
obligation, loss, damage, penalty, action, judgment, suit, cost, expense or
disbursement in excess of such Lender’s Pro Rata Share thereof; and provided
further, this sentence shall not be deemed to require any Lender to
indemnify any Agent against any liability, obligation, loss, damage, penalty,
action, judgment, suit, cost, expense or disbursement described in the proviso in
the immediately preceding sentence.


 


9.7          Successor
Administrative Agent. 
Administrative Agent may resign at any time by giving thirty (30) days’
prior written notice thereof to Lenders and Company.  Upon any such notice of resignation,
Requisite Lenders shall have the right, upon five (5) Business Days’
notice to Company, to appoint a successor Administrative Agent.  If no successor shall have been so appointed
by the Requisite Lenders and shall have accepted such appointment within thirty
(30) days after the resigning Administrative Agent gives notice of its
resignation, then the resigning Administrative Agent may, on behalf of Agents
and Lenders, appoint a successor Administrative Agent.  Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, that
successor Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent and the retiring Administrative Agent shall promptly (i) transfer
to such successor Administrative Agent all sums, Securities and other items of
Collateral held under the Collateral Documents, together with all records and
other documents necessary or appropriate in connection with the performance of
the duties of the successor Administrative Agent under the Credit Documents,
and (ii) execute and deliver to such successor Administrative Agent such 


 


97

















 


amendments to financing statements, and take such other actions, as may
be necessary or appropriate in connection with the assignment to such successor
Administrative Agent of the security interests created under the Collateral
Documents, whereupon such 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 9 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent hereunder.


 


9.8          Collateral Documents and
Guaranty.


 


(a)           Agents
under Collateral Documents and Guaranty. 
Each Lender hereby further authorizes Administrative Agent or Collateral
Agent, as applicable, on behalf of and for the benefit of Lenders, to be the
agent for and representative of Lenders with respect to the Guaranty, the
Collateral and the Collateral Documents. 
Subject to Section 10.5, without further written consent or
authorization from Lenders, Administrative Agent or Collateral Agent, as
applicable may execute any documents or instruments necessary to (i) release
any Lien encumbering any item of Collateral that is the subject of a sale or
other disposition of assets permitted hereby or to which Requisite Lenders (or
such other Lenders as may be required to give such consent under Section 10.5)
have otherwise consented or (ii) release any Guarantor from the Guaranty
pursuant to Section 7.12 or with respect to which Requisite Lenders (or
such other Lenders as may be required to give such consent under Section 10.5)
have otherwise consented.


 


(b)           Right
to Realize on Collateral and Enforce Guaranty.  Anything contained in any of the Credit
Documents to the contrary notwithstanding, Company, Administrative Agent,
Collateral Agent and each Lender hereby agree that (i) no Lender shall
have any right individually to realize upon any of the Collateral or to enforce
the Guaranty, it being understood and agreed that all powers, rights and
remedies hereunder may be exercised solely by Administrative Agent, on behalf
of Lenders in accordance with the terms hereof and all powers, rights and
remedies under the Collateral Documents may be exercised solely by Collateral
Agent, and (ii) in the event of a foreclosure by Collateral Agent on any
of the Collateral pursuant to a public or private sale, Collateral Agent or any
Lender may be the purchaser of any or all of such Collateral at any such sale
and Collateral Agent, as agent for and representative of Secured Parties (but
not any Lender or Lenders in its or their respective individual capacities
unless Requisite Lenders shall otherwise agree in writing) shall be entitled,
for the purpose of bidding and making settlement or payment of the purchase
price for all or any portion of the Collateral sold at any such public sale, to
use and apply any of the Obligations as a credit on account of the purchase
price for any collateral payable by Collateral Agent at such sale.


 


SECTION 10.       MISCELLANEOUS


 


10.1        Notices.  Unless otherwise specifically provided
herein, any notice or other communication herein required or permitted to be
given to a Credit Party, Collateral Agent, 


 


98

















 


Administrative Agent, Syndication Agent or Documentation Agent, shall
be sent to such Person’s address as set forth on Appendix B or in the other
relevant Credit Document, and in the case of any Lender, the address as
indicated on Appendix B or otherwise indicated to Administrative Agent in
writing.  Each notice hereunder shall be in
writing and may be personally served, telexed or sent by telefacsimile or
United States certified or registered mail or courier service and shall be
deemed to have been given when delivered in person or by courier service and
signed for against receipt thereof, upon receipt of telefacsimile or telex, or
three (3) Business Days after depositing it in the United States mail with
postage prepaid and properly addressed; provided, no notice to any Agent
shall be effective until received by such Agent.  As agreed to among Holdings, the Borrower,
the Administrative Agent and the applicable Lenders from time to time, notices
and other communications may also be delivered by e-mail to the e-mail address
of a representative of the applicable Person provided from time to time by such
Person.


 


The Borrower hereby agrees,
unless directed otherwise by the Administrative Agent or unless the electronic
mail address referred to below has not been provided by the Administrative
Agent to the Borrower, that it will, or will cause its Subsidiaries to, provide
to the Administrative Agent all information, documents and other materials that
it is obligated to furnish to the Administrative Agent pursuant to the Credit
Documents or to the Lenders under Article 5, including all notices,
requests, financial statements, financial and other reports, certificates and
other information materials, but excluding any such communication that (i) relates
to the payment of any principal or other amount due under this Agreement prior
to the scheduled date thereof or (ii) provides notice of any Default or
Event of Default under this Agreement or any other Credit Document (all such
non-excluded communications being referred to herein collectively as “Communications”), by transmitting
the Communications in an electronic/soft medium that is properly identified in
a format acceptable to the Administrative Agent to an electronic mail address
as directed by the Administrative Agent. 
In addition, the Borrower agrees, and agrees to cause its Subsidiaries, to
continue to provide the Communications to the Administrative Agent or the
Lenders, as the case may be, in the manner specified in the Credit Documents
but only to the extent requested by the Administrative Agent.


 


The Borrower hereby acknowledges that (a) the Administrative Agent
will make available to the Lenders materials and/or information provided by or
on behalf of the Borrower hereunder (collectively, the “Borrower Materials”)
by posting the Borrower Materials on Intralinks or another similar electronic
system (the “Platform”)
and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders
that do not wish to receive material non-public information with respect to the
Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees
that (w) all Borrower Materials that are to be made available to Public
Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum,
shall mean that the word “PUBLIC” shall appear prominently on the first page thereof;
(x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed
to have authorized the Administrative Agent and the Lenders to treat such
Borrower Materials as not containing any material non-public information with
respect to the Borrower or its securities for purposes of United States federal
and state securities laws (provided, however, that to the extent such Borrower
Materials constitute confidential information, they shall be treated as set
forth in Section 10.17); (y) all Borrower Materials marked “PUBLIC”
are permitted to be made available 


 


99

















 


through
a portion of the Platform designated as “Public Investor;” and (z) the
Administrative Agent shall be entitled to treat any Borrower Materials that are
not marked “PUBLIC” as being suitable only for posting on a portion of the
Platform not marked as “Public Investor.” Notwithstanding the foregoing, the
following Borrower Materials shall be marked “PUBLIC”, unless the Borrower
notifies the Administrative Agent promptly that any such document contains
material non-public information: (1) the Credit Documents and (2) notification
of changes in the terms of the Credit Documents.


 


Each Public Lender agrees to cause at least one individual at or on
behalf of such Public Lender to at all times have selected the “Private Side
Information” or similar designation on the content declaration screen of the
Platform in order to enable such Public Lender or its delegate, in accordance
with such Public Lender’s compliance procedures and applicable law, including
United States Federal and state securities laws, to make reference to
Communications that are not made available through the “Public Side Information”
portion of the Platform and that may contain material non-public information
with respect to the Borrower or its securities for purposes of United States
Federal or state securities laws.


 


THE PLATFORM IS PROVIDED “AS
IS” AND “AS AVAILABLE”.  NEITHER THE
ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR
COMPLETENESS OF THE COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND
EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THE
COMMUNICATIONS.  NO WARRANTY OF ANY KIND,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT
OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE
PLATFORM.  IN NO EVENT SHALL THE
ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY
CREDIT PARTY, ANY LENDER OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER
OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT,
CONTRACT OR OTHERWISE) ARISING OUT OF ANY CREDIT PARTY’S OR THE ADMINISTRATIVE
AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE
EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT
OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH PERSON’S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT.


 


The Administrative Agent
agrees that the receipt of the Communications by the Administrative Agent at
its e-mail address set forth above shall constitute effective delivery of the
Communications to the Administrative Agent for purposes of the Credit
Documents.  Each Lender agrees that
receipt of notice to it (as provided in the next sentence) specifying that the
Communications have been posted to the Platform shall constitute effective
delivery of the Communications to such Lender for purposes of the Credit
Documents.  Each Lender agrees to notify
the Administrative Agent in writing (including by electronic communication)
from time to time of such Lender’s e-mail address to which the foregoing notice
may be sent by electronic transmission and that the foregoing notice may be
sent to such e-mail address.


 


100

















 


10.2        Expenses.  Whether or not the transactions contemplated
hereby shall be consummated, Borrower agrees to pay promptly (a) all the
actual costs and expenses incurred by Arranger and Administrative Agent and
Collateral Agent in connection with the preparation of the Credit Documents and
any consents, amendments, waivers or other modifications thereto; (b) all
the costs of furnishing all opinions by counsel for Borrower and the other
Credit Parties; (c) the reasonable fees, expenses and disbursements of counsel
to Arranger and Administrative Agent and Collateral Agent in connection with
the negotiation, preparation, execution and administration of the Credit
Documents and any consents, amendments, waivers or other modifications thereto
and any other documents or matters requested by Borrower; (d) all the
actual costs and expenses of creating and perfecting Liens in favor of
Collateral Agent, for the benefit of Lenders pursuant hereto, including filing
and recording fees, expenses and taxes, stamp or documentary taxes, search
fees, title insurance premiums and reasonable fees, expenses and disbursements
of counsel to each Agent and Arranger and of counsel providing any opinions
that Arranger, any Agent or Requisite Lenders may request in respect of the
Collateral or the Liens created pursuant to the Collateral Documents; (e) all
the actual and reasonable out-of-pocket costs and fees, expenses and
disbursements of any auditors, accountants, consultants or appraisers retained
by Administrative Agent or Collateral Agent in connection with the Credit
Documents and identified to Borrower prior to their retention; (f) all the
actual costs and expenses (including the fees, expenses and disbursements of
any appraisers, consultants, advisors and agents employed or retained by
Collateral Agent and its counsel) in connection with the custody or
preservation of any of the Collateral; (g) all other actual and reasonable
out-of-pocket costs and expenses incurred by Arranger and each Agent in
connection with the syndication of the Loans and Commitments and the
negotiation, preparation and execution of the Credit Documents and any
consents, amendments, waivers or other modifications thereto and the
transactions contemplated thereby; and (h) after the occurrence of a
Default or an Event of Default, all costs and expenses, including reasonable
attorneys’ fees (including allocated costs of internal counsel) and costs of
settlement, incurred by Arranger, each and any Agent or each and any Lender in
enforcing any Obligations of or in collecting any payments due from any Credit
Party hereunder or under the other Credit Documents by reason of such Default
or Event of Default (including in connection with the sale of, collection from,
or other realization upon any of the Collateral or the enforcement of the
Guaranty) or in connection with any refinancing or restructuring of the credit
arrangements provided hereunder in the nature of a “work-out” or pursuant to
any insolvency or bankruptcy cases or proceedings.


 


10.3        Indemnity.


 


(a)           In
addition to the payment of expenses pursuant to Section 10.2, whether or
not the transactions contemplated hereby shall be consummated, each Credit
Party agrees to defend (subject to Indemnitees’ selection of counsel),
indemnify, pay and hold harmless, Arranger, each Agent, each Lender and the
officers, partners, directors, trustees, employees, agents (including advisors)
and Affiliates of Arranger, each Agent, each Lender (each, an “Indemnitee”), from and against any and all Indemnified Liabilities; provided,
no Credit Party shall have any obligation to any Indemnitee hereunder with
respect to any Indemnified Liabilities to the extent such Indemnified
Liabilities arise from the gross negligence or willful misconduct of that
Indemnitee as determined by a final non-appealable judgment of a court of 


 


101

















 


competent jurisdiction. 
As used herein, “Indemnified Liabilities”  means,
collectively, any and all liabilities, obligations, losses, damages (including
natural resource damages), penalties, actions, judgments, suits, claims
(including Environmental Claims), costs (including the costs of any
investigation, study, sampling, testing, abatement, cleanup, removal,
remediation or other response action necessary to remove, remediate, clean up
or abate any Hazardous Materials Activity), expenses and disbursements of any
kind or nature whatsoever (including the reasonable fees and disbursements of
counsel for Indemnitees in connection with any investigative, administrative or
judicial proceeding commenced or threatened by any Person, whether or not any
such Indemnitee shall be designated as a party or a potential party thereto,
and any fees or expenses incurred by Indemnitees in enforcing this indemnity),
whether direct, indirect or consequential and whether based on any federal,
state or foreign laws, statutes, rules or regulations (including
securities and commercial laws, statutes, rules or regulations and
Environmental Laws), on common law or equitable cause or on contract or
otherwise, that may be imposed on, incurred by, or asserted against any such
Indemnitee, in any manner relating to or arising out of this Agreement or the
other Credit Documents or the transactions contemplated hereby or thereby
(including the Lenders’ agreement to make Credit Extensions or the use or
intended use of the proceeds thereof, or any enforcement of any of the Credit
Documents (including any sale of, collection from, or other realization upon
any of the Collateral or the enforcement of the Guaranty)).


 


(b)           To
the extent that the undertakings to defend, indemnify, pay and hold harmless
set forth in this Section 10.3 may be unenforceable in whole or in part
because they are violative of any law or public policy, the applicable Credit
Party shall contribute the maximum portion that it is permitted to pay and
satisfy under applicable law to the payment and satisfaction of all Indemnified
Liabilities incurred by Indemnitees or any of them.


 


(c)           To
the extent permitted by applicable law, each of Holdings and Company, and its
Subsidiaries, shall not assert, and each of Holdings and Company, and its
Subsidiaries, hereby waives, any claim against Lenders, Agents and Arranger,
and their respective Affiliates, directors, employees, attorneys or agents, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) (whether or not the claim therefor is
based on contract, tort or duty imposed by any applicable legal requirement)
arising out of, in connection with, arising out of, as a result of, or in any
way related to, this Agreement or any Credit Document or any agreement or
instrument contemplated hereby or referred to herein, the transactions
contemplated hereby, any Loan or the use of the proceeds thereof or any act or
omission or event occurring in connection therewith, and each of Holdings and
Company, and its Subsidiaries, hereby waives, releases and agrees not to sue
upon any such claim or any such damages, whether or not accrued and whether or
not known or suspected to exist in its favor.


 


10.4        Set-Off.  In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
upon the occurrence and during the continuance of any Event of Default each
Agent, each Lender and each of their respective Affiliates is hereby authorized
by each Credit Party at any time or from time to time, without notice to any
Credit 


 


102

















 


Party or to any other Person (other than Administrative Agent), any
such notice being hereby expressly waived, to set off and to appropriate and to
apply any and all deposits (general or special, including Indebtedness
evidenced by certificates of deposit, whether matured or unmatured, but not
including trust accounts) and any other Indebtedness at any time held or owing
by such Agent, Lender or Affiliate to or for the credit or the account of any
Credit Party against and on account of the obligations and liabilities of any
Credit Party to such Agent, Lender or Affiliate hereunder, and under the other
Credit Documents, including all claims of any nature or description arising out
of or connected hereto, or with any other Credit Document, irrespective of
whether or not (a) such Lender shall have made any demand hereunder or (b) the
principal of or the interest on the Loans or any other amounts due hereunder
shall have become due and payable pursuant to Section 2 and although such
obligations and liabilities, or any of them, may be contingent or unmatured.


 


10.5        Amendments and Waivers.


 


(a)           Requisite
Lenders’ Consent.  Subject to Section 10.5(b) and
10.5(c), no amendment, modification, termination or waiver of any provision of
the Credit Documents, or consent to any departure by any Credit Party
therefrom, shall in any event be effective without the written concurrence of
the Requisite Lenders.


 


(b)           Affected
Lenders’ Consent.  Without the
written consent of each Lender that would be affected thereby, no amendment,
modification, termination, or consent shall be effective if the effect thereof
would:


 


(i)             extend
the scheduled final maturity of any Loan or Note;


 


(ii)          waive,
reduce or postpone any scheduled repayment (but not prepayment);


 


(iii)       reduce the
rate of interest on any Loan (other than any waiver of any increase in the
interest rate applicable to any Loan pursuant to Section 2.9) or any fee
payable hereunder;


 


(iv)      extend the
time for payment of any such interest or fees;


 


(v)         reduce or
forgive the principal amount of any Loan;


 


(vi)      amend,
modify, terminate or waive any provision of this Section 10.5(b), Section 10.5(c) or
Section 2.16 hereof, or Section 7.2 of the Pledge and Security
Agreement;


 


103

















 


(vii)                 amend
the definition of “Requisite Lenders”  or  “Pro Rata
Share”;


 


(viii)              release
all or substantially all of the Collateral or all or substantially all of the
Guarantors from the Guaranty except as expressly provided in the Credit
Documents;


 


(ix)                      consent to the assignment or transfer by any Credit Party of
any of its rights and obligations under any Credit Document; or


 


(x)           modify
the term “Interest Period” so as to permit intervals in excess of six (6) months.


 


(c)           Other
Consents.  No amendment,
modification, termination or waiver of any provision of the Credit Documents,
or consent to any departure by any Credit Party therefrom, shall:


 


(i)                           increase any Term Loan Commitment of any Lender over the
amount thereof then in effect without the consent of such Lender; provided,
no amendment, modification or waiver of any condition precedent, covenant,
Default or Event of Default shall constitute an increase in any Term Loan
Commitment of any Lender; or


 


(ii)                        amend, modify, terminate or waive any provision of Section 9
as the same applies to any Agent, or any other provision hereof as the same
applies to the rights or obligations of any Agent, in each case without the
consent of such Agent.


 


(d)           Execution
of Amendments, etc.  Administrative
Agent may, but shall have no obligation to, with the concurrence of any Lender,
execute amendments, modifications, waivers or consents on behalf of such
Lender.  Any waiver or consent shall be
effective only in the specific instance and for the specific purpose for which it
was given.  No notice to or demand on any
Credit Party in any case shall entitle any Credit Party to any other or further
notice or demand in similar or other circumstances.  Any amendment, modification, termination,
waiver or consent effected in accordance with this Section 10.5 shall be
binding upon each Lender at the time outstanding, each future Lender and, if
signed by a Credit Party, on such Credit Party.


 


10.6        Successors and Assigns;
Participations.


 


(a)           Generally.  This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of the parties hereto and the 


 


104

















 


successors and assigns of Lenders.  No Credit Party’s rights or obligations
hereunder nor any interest therein may be assigned or delegated by any Credit
Party without the prior written consent of all Lenders.  Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby and, to the
extent expressly contemplated hereby, Affiliates of each of the Agents and
Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.


 


(b)           Register.  Borrower, Administrative Agent and Lenders
shall deem and treat the Persons listed as Lenders in the Register as the
holders and owners of the corresponding Commitments and Loans listed therein
for all purposes hereof, and, except as provided in Section 10.6(e), no
assignment or transfer of any such Commitment or Loan shall be effective, in
each case, unless and until an Assignment Agreement effecting the assignment or
transfer thereof shall have been delivered to and accepted by Administrative
Agent and recorded in the Register as provided in Section 10.6(f).  In the case of a Related Lender Assignment
described in Section 10.6(e) that is not reflected in the Register,
the assigning Lender shall maintain a comparable register. Prior to such
recordation, all amounts owed with respect to the applicable Commitment or Loan
shall be owed to the Lender listed in the Register as the owner thereof, and
any request, authority or consent of any Person who, at the time of making such
request or giving such authority or consent, is listed in the Register as a
Lender shall be conclusive and binding on any subsequent holder, assignee or
transferee of the corresponding Commitments or Loans.


 


(c)           Right
to Assign.  Each Lender shall have
the right at any time to sell, assign or transfer all or a portion of its
rights and obligations under this Agreement, including, without limitation, all
or a portion of its Commitment or Loans owing to it or other Obligation (provided,
however, that each such assignment shall be of a uniform, and not
varying, percentage of all rights and obligations under and in respect of any
Loan and any related Commitments):


 


(i)                           to any Person meeting the criteria of clause (i) of the
definition of the term of “Eligible Assignee” (a “Related Lender Assignment”) upon the giving of notice to Borrower and Administrative
Agent and, for any assignment of a Term Loan Commitment, the consent of
Administrative Agent (such consent not to be unreasonably withheld or delayed);


 


(ii)                        to any Person meeting the criteria of clause (ii) of the
definition of the term of “Eligible Assignee” (other than a Person described in
the foregoing subclause (i)) and (except in the case of assignments made by or
to Credit Suisse) consented to by Borrower and Administrative Agent (such
consent (x) not to be unreasonably withheld or delayed or, (y) in the
case of Borrower, shall be deemed to have been provided to any such assignment
unless the Borrower shall have objected thereto by written notice to the
Administrative Agent within fifteen (15) days after having received notice of
such assignment, or  (z) in the case
of 


 


105

















 


Borrower, not to be required at any time during syndication
of the Loans to persons identified by the Administrative Agent to the Borrower
on or prior to the Closing Date or at any time an Event of Default under
Sections 8.1(a), 8.1(f) or 8.1(g) shall have occurred and then be
continuing; provided, further each such assignment pursuant to this Section 10.6(c)(ii) shall
be in an aggregate amount of not less than $1,000,000 (or such lesser amount as
may be agreed to by Borrower and Administrative Agent or as shall constitute
the aggregate amount of the Term Loan Commitments and Term Loans of the
assigning Lender) with respect to the assignment of the Term Loan Commitments
and Term Loans; and


 


(iii)            to
the Borrower pursuant to a Permitted Loan Purchase upon the giving of notice to
Administrative Agent.  Any Loans acquired
by Borrower shall be deemed cancelled and retired immediately upon closing of
such Permitted Loan Purchase.  It is
confirmed and acknowledged that, upon such cancellation or retirement of Loans
pursuant to a Permitted Loan Purchase, the Loans so cancelled or retired shall
be deemed not to be outstanding and to have no principal amount for any purposes
under this Agreement.


 


(d)           Mechanics.  The assigning Lender and the assignee thereof
shall execute and deliver to Administrative Agent (i) an Assignment
Agreement (A) via an electronic settlement system acceptable to
Administrative Agent (which initially shall be ClearPar, LLC), or (B) manually
together with a processing and recordation fee of $3,500, and (ii) such
forms, certificates or other evidence, if any, with respect to United States
federal income tax withholding matters as the assignee under such Assignment
Agreement may be required to deliver to Administrative Agent pursuant to Section 2.19(c);
provided, however, that should a Lender or assignee party to a
Related Lender Assignment deliver an Assignment Agreement to the Administrative
Agent for recording, such Lender or assignee shall provide the relevant
administration details and applicable tax forms with such Assignment Agreement.
The Assignment Agreement executed in connection with any Permitted Loan
Purchase shall include the following representations:


 


Each party
to this Assignment represents and warrants to each Agent and each Lender that
it has made its own independent investigation of the facts and circumstances
surrounding this Assignment and the transactions contemplated hereby, and has
not relied in any way on any statement, advice or recommendation of any Agent
or Lender in connection herewith or therewith. 
No Agent shall have any duty or responsibility to disclose information
to the parties to this Assignment in connection herewith and no Agent shall
have any responsibility with respect to the accuracy of or the completeness of
any information provided to parties to this Assignment relating to any of the
foregoing.


 


106














 


(e)           Related
Lender Assignments.  Notwithstanding
anything contained in this Section 10.6 to the contrary, a Lender may
effect a Related Lender Assignment with respect to Term Loans held by it
without delivering an Assignment Agreement to Administrative Agent or to
Company and without payment of the assignment fee referred to in Section 10.6(d);
provided, that, if and when an Assignment Agreement is delivered to
Administrative Agent, it is delivered via ClearPar, LLC, or such other
electronic settlement system acceptable to the Administrative Agent; provided,
however, that (i) Company, Administrative Agent and the other
Lenders shall continue to deal solely and directly with such assigning Lender
in connection with such Lender’s rights and obligations under this Agreement
until such Assignment Agreement has been delivered to Administrative Agent and
recorded in the Register and (ii) anything contained herein to the
contrary notwithstanding, if such Related Lender Assignment is to a Person that
is not a United States Person (as such term is defined in Section 7701(a)(30)
of the Internal Revenue Code), such assignee party to such Related Lender
Assignment shall comply with Section 2.19(c) hereof as if such
assignee party had delivered an Assignment Agreement to Administrative Agent on
the effective date of such Related Lender Assignment.  The failure of such assigning Lender to
deliver an Assignment Agreement to Administrative Agent shall not affect the
legality, validity or binding effect of such assignment.


 


(f)            Notice
of Assignment.  Upon its receipt of a
duly executed and completed Assignment Agreement, together with the processing
and recordation fee referred to in Section 10.6(d) (and any forms,
certificates or other evidence required by this Agreement in connection
therewith), Administrative Agent shall record the information contained in such
Assignment Agreement in the Register and shall maintain a copy of such
Assignment Agreement.


 


(g)           Representations
and Warranties of Assignee.  Each
Lender, upon execution and delivery hereof or upon executing and delivering an
Assignment Agreement, as the case may be, represents and warrants as of the
Closing Date or as of the applicable Effective Date (as defined in the
applicable Assignment Agreement or Term Loan Joinder Agreement) that (i) it
is an Eligible Assignee; (ii) it has experience and expertise in the
making of or investing in commitments or loans such as the applicable
Commitments or Loans, as the case may be; and (iii) it will make or invest
in, as the case may be, its Commitments or Loans for its own account in the
ordinary course of its business and without a view to distribution of such
Commitments or Loans within the meaning of the Securities Act or the Exchange
Act or other federal securities laws (it being understood that, subject to the
provisions of this Section 10.6, the disposition of such Commitments or
Loans or any interests therein shall at all times remain within its exclusive
control).


 


(h)           Effect
of Assignment.  Subject to the terms
and conditions of this Section 10.6, as of the “Effective Date” specified
in the applicable Assignment Agreement: (i) the assignee thereunder shall
have the rights and obligations of a “Lender” hereunder to the extent such
rights and obligations hereunder have been assigned to it pursuant to such
Assignment Agreement and shall thereafter be a party hereto and a “Lender” for
all purposes hereof; (ii) the assigning Lender thereunder shall, to the
extent that rights and obligations hereunder have been assigned thereby pursuant
to such Assignment Agreement, relinquish its rights (other than any 


 


107

















 


rights which survive the termination hereof under Section 10.8)
and be released from its obligations hereunder (and, in the case of an
Assignment Agreement covering all or the remaining portion of an assigning
Lender’s rights and obligations hereunder, such Lender shall cease to be a
party hereto; provided, anything contained in any of the Credit
Documents to the contrary notwithstanding, such assigning Lender shall continue
to be entitled to the benefit of all indemnities hereunder as specified herein
with respect to matters arising out of the prior involvement of such assigning
Lender as a Lender hereunder); (iii) the Commitments shall be modified to
reflect the Commitment of such assignee and any Term Loan Commitment of such
assigning Lender, if any; and (iv) if any such assignment occurs after the
issuance of any Note hereunder, the assigning Lender shall, upon the effectiveness
of such assignment or as promptly thereafter as practicable, surrender its
applicable Notes to Administrative Agent for cancellation or deliver a lost
note affidavit, and thereupon Borrower shall issue and deliver new Notes, if so
requested by the assignee and/or assigning Lender, to such assignee and/or to
such assigning Lender, with appropriate insertions, to reflect the new Term
Loan Commitments and/or outstanding Loans of the assignee and/or the assigning
Lender.


 


(i)            Participations.  Each Lender shall have the right at any time
to sell one or more participations to any Person (other than to a natural
person, Holdings, any of its Subsidiaries or any of its Affiliates) in all or
any part of its Commitments, Loans or in any other Obligation.  The holder of any such participation shall
not be entitled to require such Lender to take or omit to take any action
hereunder except with respect to any amendment, modification or waiver that
would (i) extend the final scheduled maturity of any Loan or Note in which
such participant is participating, or reduce the rate or extend the time of
payment of interest or fees thereon (except in connection with a waiver of
applicability of any post-default increase in interest rates) or reduce the
principal amount thereof, or increase the amount of the participant’s
participation over the amount thereof then in effect (it being understood that
a waiver of any Default or Event of Default or of a mandatory reduction in the
Commitment shall not constitute a change in the terms of such participation,
and that an increase in any Commitment or Loan shall be permitted without the
consent of any participant if the participant’s participation is not increased
as a result thereof), (ii) consent to the assignment or transfer by any Credit
Party of any of its rights and obligations under this Agreement or (iii) release
all or substantially all of the Collateral under the Collateral Documents
(except as expressly provided in the Credit Documents) supporting the Loans
hereunder in which such participant is participating.  Borrower agrees that each participant shall
be entitled to the benefits of Sections 2.17(c), 2.18 and 2.19 to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (c) of this Section; provided, (i) a
participant shall not be entitled to receive any greater payment under Section 2.18
or 2.19 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 Borrower’s prior written consent
and (ii) a participant that would be a Non-US Lender if it were a Lender
shall not be entitled to the benefits of Section 2.19 unless Borrower is
notified of the participation sold to such participant and such participant
agrees, for the benefit of Borrower, to comply with Section 2.19 as though
it were a Lender.  To the extent
permitted by law, each participant also shall be entitled to the benefits of Section 10.4
as though it were a Lender, provided such Participant agrees to be subject to Section 2.16
as though it were a Lender.


 


108

















 


(j)            Certain
Other Assignments.  In addition to
any other assignment permitted pursuant to this Section 10.6, (i) any
Lender may assign and/or pledge all or any portion of its Loans, the other
Obligations owed by or to such Lender, and its Notes, if any, to secure
obligations of such Lender including, without limitation, any Federal Reserve
Bank as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any operating circular issued by
such Federal Reserve Bank; provided, no Lender, as between Company and
such Lender, shall be relieved of any of its obligations hereunder as a result
of any such assignment and pledge, and provided  further, in no
event shall the applicable Federal Reserve Bank, pledgee or trustee be
considered to be a “Lender” or be entitled to require the assigning Lender to
take or omit to take any action hereunder.


 


10.7        Independence
of Covenants.  All
covenants hereunder shall be given independent effect so that if a particular
action or condition is not permitted by any of such covenants, the fact that it
would be permitted by an exception to, or would otherwise be within the
limitations of, another covenant shall not avoid the occurrence of a Default or
an Event of Default if such action is taken or condition exists.


 


10.8        Survival
of Representations, Warranties and Agreements.  All representations, warranties and
agreements made herein shall survive the execution and delivery hereof and the
making of any Credit Extension. 
Notwithstanding anything herein or implied by law to the contrary, the
agreements of each Credit Party set forth in Sections 2.18(c), 2.19, 2.20,
10.2, 10.3 and 10.4 and the agreements of Lenders set forth in
Sections 2.17, 9.3(b) and 9.6 shall survive the payment of the Loans
and the termination hereof.


 


10.9        No
Waiver; Remedies Cumulative.  No failure or delay on the part of Arranger,
any Agent or any Lender in the exercise of any power, right or privilege
hereunder or under any other Credit Document shall impair such power, right or
privilege or be construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other power,
right or privilege.  The rights, powers
and remedies given to Arranger, each Agent and each Lender hereby are
cumulative and shall be in addition to and independent of all rights, powers
and remedies existing by virtue of any statute or rule of law or in any of
the other Credit Documents.  Any
forbearance or failure to exercise, and any delay in exercising, any right,
power or remedy hereunder shall not impair any such right, power or remedy or
be construed to be a waiver thereof, nor shall it preclude the further exercise
of any such right, power or remedy.


 


10.10      Marshalling; Payments Set Aside.  Neither any Agent nor any Lender shall be
under any obligation to marshal any assets in favor of any Credit Party or any
other Person or against or in payment of any or all of the Obligations.  To the extent that any Credit Party makes a
payment or payments to Administrative Agent or Lenders (or to Administrative
Agent, on behalf of Lenders), or Administrative Agent or Lenders enforce any
security interests or exercise their rights of setoff, and such payment or
payments or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under
any 


 


109

















 


bankruptcy law, any other state or federal law, common law or any
equitable cause, then, to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied, and all Liens, rights and remedies
therefor or related thereto, shall be revived and continued in full force and
effect as if such payment or payments had not been made or such enforcement or
setoff had not occurred.


 


10.11      Severability.  In case any provision in or obligation
hereunder or any Note shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.


 


10.12      Obligations Several; Independent
Nature of Lenders’ Rights.  The obligations of Lenders hereunder are
several and no Lender shall be responsible for the obligations or Commitment of
any other Lender hereunder.  Nothing
contained herein or in any other Credit Document, and no action taken by
Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Lender shall be a separate and independent
debt, and each Lender shall be entitled to protect and enforce its rights
arising out hereof and it shall not be necessary for any other Lender to be
joined as an additional party in any proceeding for such purpose.


 


10.13      Headings.  Section headings herein
are included herein for convenience of reference only and shall not constitute
a part hereof for any other purpose or be given any substantive effect.


 


10.14      APPLICABLE LAW.  THIS AGREEMENT
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.


 


10.15      CONSENT TO JURISDICTION.  ALL
JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY CREDIT PARTY ARISING OUT OF OR
RELATING HERETO OR ANY OTHER CREDIT DOCUMENT, OR ANY OF THE OBLIGATIONS, MAY BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE,
COUNTY AND CITY OF NEW YORK.  BY
EXECUTING AND DELIVERING THIS AGREEMENT, EACH CREDIT PARTY, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (a) ACCEPTS GENERALLY AND
UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (b) WAIVES
ANY DEFENSE OF FORUM NON CONVENIENS; (c) AGREES THAT SERVICE OF ALL PROCESS
IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE 


 


110

















 


CREDIT PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE
WITH SECTION 10.1; (d) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (c) ABOVE
IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE CREDIT PARTY
IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE
AND BINDING SERVICE IN EVERY RESPECT; AND (e) AGREES AGENTS AND LENDERS
RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
BRING PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY OTHER
JURISDICTION.


 


10.16      WAIVER OF JURY TRIAL.  EACH OF
THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF
THE OTHER CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT
MATTER OF THIS LOAN TRANSACTION OR THE LENDER/COMPANY RELATIONSHIP THAT IS
BEING ESTABLISHED.  THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE
FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS.  EACH
PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER
INTO A BUSINESS RELATIONSHIP, WHICH EACH HAS ALREADY RELIED ON THIS WAIVER IN
ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS
WAIVER IN ITS RELATED FUTURE DEALINGS. 
EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED
THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES
ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.  THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT
BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER
SPECIFICALLY REFERRING TO THIS SECTION 10.16 AND EXECUTED BY EACH OF THE
PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT
DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE
HEREUNDER.  IN THE EVENT OF LITIGATION,
THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.


 


10.17      Confidentiality.  Each Lender shall hold all non-public
information regarding Holdings and its Subsidiaries and their businesses
identified as such by Borrower and obtained by such Lender pursuant to the
requirements hereof in accordance with such Lender’s customary procedures for
handling confidential information of such nature, it being understood and
agreed by Holdings that, in any event, a Lender may make disclosures: (i) to
Affiliates of such Lender and to their agents and advisors (and to other
persons authorized by a Lender or Agent to 


 


111

















 


organize, present or disseminate such information in connection with
disclosures otherwise made in accordance with this Section 10.17); (ii) reasonably
required by any bona fide or potential pledgee, assignee, transferee or
participant in connection with the contemplated pledge, assignment, transfer or
participation by such Lender of any Loans or any participations therein or by
any direct or indirect contractual counterparties (or the professional advisors
thereto) in Hedge Agreements (provided, such counterparties and advisors are
advised of and agree to be bound by the provisions of this Section 10.17);
(iii) to any rating agency when required by it, provided that, prior to
any disclosure, such rating agency shall undertake in writing to preserve the
confidentiality of any confidential information relating to the Credit Parties
received by it from any of the Agents or any Lender; and (iv) required or
requested by any governmental agency or representative thereof or by The
National Association of Insurance Commissioners (and any successor thereto) or
pursuant to legal or judicial process; provided, unless specifically
prohibited by applicable law or court order, each Lender shall make reasonable
efforts to notify Borrower of any request by any governmental agency or
representative thereof (other than any such request in connection with any
examination of the financial condition or other routine examination of such
Lender by such governmental agency) for disclosure of any such non-public
information prior to disclosure of such information; provided, further,
that in no event shall any Lender be obligated or required to return any
materials furnished by Holdings, Company or any of its Subsidiaries.  Notwithstanding anything to the contrary set
forth herein, each party (and each of their respective employees,
representatives or other agents) may disclose to any and all persons, without
limitations of any kind, the tax treatment and tax structure of the
transactions contemplated by this Agreement and all materials of any kind
(including opinions and other tax analyses) that are provided to any such party
relating to such tax treatment and tax structure.  However, any information relating to the tax
treatment or tax structure shall remain subject to the confidentiality
provisions hereof (and the foregoing sentence shall not apply) to the extent
reasonably necessary to enable the parties hereto, their respective Affiliates,
and their and their respective Affiliates’ directors and employees to comply
with applicable securities laws.  For
this purpose, “tax structure” means any facts relevant to the federal income
tax treatment of the transactions contemplated by this Agreement but does not
include information relating to the identity of any of the parties hereto or
any of their respective Affiliates.


 


10.18      Usury Savings Clause.  Notwithstanding any other provision herein,
the aggregate interest rate charged with respect to any of the Obligations,
including all charges or fees in connection therewith deemed in the nature of
interest under applicable law shall not exceed the Highest Lawful Rate.  If the rate of interest (determined without
regard to the preceding sentence) under this Agreement at any time exceeds the
Highest Lawful Rate, the outstanding amount of the Loans made hereunder shall
bear interest at the Highest Lawful Rate until the total amount of interest due
hereunder equals the amount of interest which would have been due hereunder if
the stated rates of interest set forth in this Agreement had at all times been
in effect.  In addition, if when the
Loans made hereunder are repaid in full the total interest due hereunder
(taking into account the increase provided for above) is less than the total
amount of interest which would have been due hereunder if the stated rates of
interest set forth in this Agreement had at all times been in effect, then to
the extent permitted by law, Borrower shall pay to Administrative Agent an
amount equal to the difference between the amount of interest paid and the
amount of interest which would have been paid if the Highest Lawful Rate had at
all times been in effect. 
Notwithstanding the foregoing, it is the intention of Lenders and
Company 


 


112

















 


to conform strictly to any applicable usury laws.  Accordingly, if any Lender contracts for,
charges, or receives any consideration which constitutes interest in excess of
the Highest Lawful Rate, then any such excess shall be cancelled automatically
and, if previously paid, shall at such Lender’s option be applied to the
outstanding amount of the Loans made hereunder or be refunded to Borrower.


 


10.19      Counterparts.  This Agreement may be executed
in any number of counterparts, each of which when so executed and delivered
shall be deemed an original, but all such counterparts together shall
constitute but one and the same instrument.


 


10.20      Effectiveness.  This Agreement shall become
effective upon the execution of a counterpart hereof by each Credit Party, the
Administrative Agent, the Collateral Agent and the Lenders.


 


113

















 


APPENDIX A-1


TO CREDIT AND GUARANTY AGREEMENT


 


[Reserved]


 


1

















 


APPENDIX
B


TO
CREDIT AND GUARANTY AGREEMENT


 


Notice Addresses


 


DOUGLAS DYNAMICS,
INC.


DOUGLAS DYNAMICS
FINANCE COMPANY


DOUGLAS DYNAMICS,
L.L.C.


FISHER, LLC


 


7777
North 73rd Street


Milwaukee,
WI 53223


Attention:  Chief Executive Officer and President


Fax: 414-354-8448


 


with a copy to:


 


Aurora Capital
Group


10877 Wilshire
Boulevard


Suite 2100


Los Angeles, CA
90024


Attention:  Secretary


Fax: 310-824-2791


 

















 


CREDIT SUISSE AG,


acting through its
Cayman Islands Branch,


as Administrative
Agent, Collateral Agent,


Syndication Agent,
Documentation Agent and a Lender


 


Principal Office of
Administrative Agent, Collateral Agent,


Syndication Agent and
Documentation Agent:


 


Eleven Madison Avenue,
OMA-2


New York, NY 10010


Attention:  Loan Services Manager


Tel: 212-538-3380


Fax: 212-325-8304


 


2














 


Exhibit B


 


Amendment to ABL Credit Agreement


 


See Exhibit 10.3 to Amendment No. 5 to the Registration Statement on
Form S-1 of Douglas Dynamics, Inc. (File No. 333-164590).


 














 


Exhibit C


 


Intercreditor Amendment


 


See attached.


 






 










 


Exhibit C


 


Intercreditor  Amendment


 


AMENDMENT
NO. 1 TO INTERCREDITOR AGREEMENT


 


This AMENDMENT NO. 1 TO INTERCREDITOR
AGREEMENT (this “Amendment”), dated as of April [    ],
2010, is made and entered into among Douglas Dynamics, L.L.C., a Delaware
limited liability company (the “Borrower”), Douglas Dynamics Finance Company,
a Delaware corporation (“DD Finance”), Fisher, LLC, as Delaware limited
liability company (“Fisher”), Douglas Dynamics, Inc., a Delaware
corporation (“Holdings”), Credit Suisse AG, Cayman Islands Branch (“Credit
Suisse”), in its capacity as administrative agent under the ABL Loan
Documents (as defined in the Intercreditor Agreement referred to below) (in
such capacity, the “ABL Administrative Agent”), JPMorgan Chase Bank, N.A,
in its capacity as collateral agent under the ABL Loan Documents (in such
capacity, the “ABL Collateral Agent”), Credit Suisse, in its capacities
as administrative agent (in such capacity, the “Term Administrative Agent”
and, together with the ABL Administrative Agent, the “Administrative Agents”)
and collateral agent (in such capacity, the “Term Collateral Agent”) under
the Term Loan Documents (as defined in the Intercreditor Agreement referred to
below).


 


RECITALS


 


A.            The Borrower, DD Finance, Fisher, Holdings, the ABL
Administrative Agent, the ABL Collateral Agent, the Term Administrative Agent
and the Term Collateral Agent entered into that certain Intercreditor Agreement
dated as of May 21, 2007 (the “Intercreditor Agreement”;  capitalized terms used but
not defined herein having the meanings set forth therein).


 


B.            Concurrently
herewith, the Term Credit Agreement and the ABL Credit Agreement have been
amended to permit the making of additional term loans under the Term Credit
Agreement in the principal amount of $40,000,000 and reflect certain other
changes.


 


C.            The ABL Required Lenders and the Term Required Lenders
have given their prior written consent to the execution of this Amendment.


 


D.            The Borrower, the Term Administrative Agent, the Term
Collateral Agent, the ABL Administrative Agent and the ABL Collateral Agent
desire to amend the Intercreditor Agreement as set forth below on and subject
to the terms of this Amendment.


 


AGREEMENT


 


NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:


 


1.             Amendment
to Intercreditor Agreement.


 


(a)   The
definition of “Maximum Term Principal Amount” in Section 1.1 of the
Intercreditor Agreement is hereby amended in its entirety by deleting the existing definition and
replacing it with the following:


 


“Maximum Term Principal Amount” shall mean, at
any time, (i) $125,000,000, less (ii) the aggregate principal amount
of permanent repayments or prepayments of indebtedness under the Term Credit
Agreement, other than any such reduction, repayment or prepayment made in 


 

















 


connection with a Refinancing, plus (iii) for the
avoidance of doubt and without duplication, the aggregate principal amount of
any interest that has been capitalized under the Term Credit Agreement..


 


(b)   The
definition of “Maximum ABL Principal Amount” in Section 1.1 of the
Intercreditor Agreement is hereby amended in its entirety by deleting the
existing definition and replacing it with the following:


 


“Maximum ABL Principal Amount” shall mean, at
any time, (i) $60,000,000, less (ii) the aggregate permanent
reductions in the ABL Loan Commitments other than any such reduction, repayment
or prepayment made in connection with a Refinancing, plus (iii) for the
avoidance of doubt and without duplication, the aggregate principal amount of
any interest that has been capitalized under the ABL Credit Agreement.


 


2.             Effectiveness of Amendment..  This Amendment shall be effective as of the first
date (the “Amendment Effective Date”) on which all of the following
conditions precedent have been satisfied:


 


(c)   The
Administrative Agents shall have received counterparts of this Amendment
executed by the Term Administrative Agent, the Term Collateral Agent, the ABL
Administrative Agent, the ABL Collateral Agent, the Borrower, DD Finance,
Fisher and Holdings.


 


(d)   The
Administrative Agents shall have received an executed copy of Amendment No. 2
to Credit and Guaranty Agreement, dated as of the date hereof (the “Term
Amendment”), among the Borrower and each of the lenders party thereto and the
Term Amendment shall be in full force and effect.


 


(e)   The Administrative Agents shall have received an executed
copy of Amendment No. 1 to Credit and Guaranty Agreement, dated as of the
date hereof (the “ABL Amendment”), among the Borrower and each of the
lenders party thereto and the ABL Amendment shall be in full force and effect.


 


3.             Miscellaneous.  THIS AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF (OTHER THAN SECTION 5-1401
OF THE NEW YORK GENERAL OBLIGATIONS LAW).  This Amendment may be executed in one or more
duplicate counterparts and when signed by all of the parties listed below shall
constitute a single binding agreement. 
Except for the amendments set forth in Section 1 hereof, all of the
provisions of the Intercreditor Agreement shall remain in full force and
effect.  The foregoing amendments shall
be strictly construed in accordance with the express terms thereof.  This Amendment shall be deemed a “Credit
Document” as defined in the Credit Agreement.


 


2

















 


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


 


 


	
   

  	
  CREDIT PARTIES:

  
	
   

  	
   

  
	
   

  	
  DOUGLAS DYNAMICS, L.L.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DOUGLAS DYNAMICS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DOUGLAS DYNAMICS FINANCE COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FISHER, LLC,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


	
   

  	
  ABL
  ADMINISTRATIVE AGENT:

  
	
   

  	
   

  
	
   

  	
  CREDIT
  SUISSE AG, CAYMAN ISLANDS BRANCH,

  
	
   

  	
  as
  ABL Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 

















 


	
   

  	
  ABL
  COLLATERAL AGENT:

  
	
   

  	
   

  
	
   

  	
  JPMORGAN
  CHASE, N.A.,

  
	
   

  	
  as ABL Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 

















 


	
   

  	
  TERM
  ADMINISTRATIVE AGENT AND TERM COLLATERAL AGENT:

  
	
   

  	
   

  
	
   

  	
  CREDIT
  SUISSE AG, CAYMAN ISLANDS BRANCH,

  
	
   

  	
  as
  Term Administrative Agent and Term Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title: