Exhibit
10.46


 


CREDIT
AGREEMENT


DATED AS
OF DECEMBER 20, 2006


AMONG


BARE
ESCENTUALS BEAUTY, INC.,

as Company,


BARE
ESCENTUALS, INC.,

as Holdings,


THE LENDERS LISTED HEREIN,


as
Lenders,


and


BNP PARIBAS,


as
Administrative Agent


 


BNP
PARIBAS

Lead Arranger















 


TABLE OF CONTENTS


	
  

  	
   

  	
   

  	
   

  	
  Page No.

  
	
  SECTION 1.

  	
  DEFINITIONS

  	
   

  	
  1

  
	
  1.1

  	
   

  	
  Certain Defined Terms

  	
   

  	
  1

  
	
  1.2

  	
   

  	
  Accounting Terms; Utilization of GAAP for Purposes
  of Calculations Under Agreement

  	
   

  	
  29

  
	
  1.3

  	
   

  	
  Other Definitional Provisions and Rules of
  Construction

  	
   

  	
  29

  
	
  1.4

  	
   

  	
  Amendment and Restatement

  	
   

  	
  30

  
	
  SECTION 2.

  	
  AMOUNTS AND
  TERMS OF COMMITMENTS AND LOANS

  	
   

  	
  30

  
	
  2.1

  	
   

  	
  Commitments; Making of Loans; the Register; Optional
  Notes

  	
   

  	
  30

  
	
  2.2

  	
   

  	
  Interest on the Loans

  	
   

  	
  36

  
	
  2.3

  	
   

  	
  Fees

  	
   

  	
  40

  
	
  2.4

  	
   

  	
  Repayments, Prepayments and Reductions in Revolving
  Loan Commitments; General Provisions Regarding Payments; Application of
  Proceeds of Collateral and Payments Under Guaranties

  	
   

  	
  40

  
	
  2.5

  	
   

  	
  Use of Proceeds

  	
   

  	
  47

  
	
  2.6

  	
   

  	
  Special Provisions Governing LIBOR Loans

  	
   

  	
  47

  
	
  2.7

  	
   

  	
  Increased Costs; Taxes; Capital Adequacy

  	
   

  	
  49

  
	
  2.8

  	
   

  	
  Statement of Lenders; Obligation of Lenders and
  Issuing Lenders to Mitigate

  	
   

  	
  54

  
	
  2.9

  	
   

  	
  Replacement of a Lender

  	
   

  	
  54

  
	
  SECTION 3.

  	
  LETTERS OF
  CREDIT

  	
   

  	
  55

  
	
  3.1

  	
   

  	
  Issuance of Letters of Credit and Lenders’ Purchase
  of Participations Therein

  	
   

  	
  55

  
	
  3.2

  	
   

  	
  Letter of Credit Fees

  	
   

  	
  58

  
	
  3.3

  	
   

  	
  Drawings and Reimbursement of Amounts Paid Under
  Letters of Credit

  	
   

  	
  58

  
	
  3.4

  	
   

  	
  Obligations Absolute

  	
   

  	
  61

  
	
  3.5

  	
   

  	
  Nature of Issuing Lenders’ Duties

  	
   

  	
  62

  
	
  SECTION 4.

  	
  CONDITIONS TO
  RESTATEMENT, LOANS AND LETTERS OF CREDIT

  	
   

  	
  63

  
	
  4.1

  	
   

  	
  Conditions to Restatement

  	
   

  	
  63

  
	
  4.2

  	
   

  	
  Conditions to All Loans

  	
   

  	
  65

  
	
  4.3

  	
   

  	
  Conditions to Letters of Credit

  	
   

  	
  65

  
	
  SECTION 5.

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
   

  	
  66

  



 



 i
 






 



 


	
  5.1

  	
   

  	
  Organization, Powers, Qualification, Good Standing,
  Business and Subsidiaries

  	
   

  	
  66

  
	
  5.2

  	
   

  	
  Authorization of Borrowing, etc

  	
   

  	
  67

  
	
  5.3

  	
   

  	
  No Material Adverse Change; No Restricted Junior
  Payments

  	
   

  	
  68

  
	
  5.4

  	
   

  	
  Title to Properties; Liens; Real Property;
  Intellectual Property

  	
   

  	
  68

  
	
  5.5

  	
   

  	
  Litigation; Adverse Facts

  	
   

  	
  68

  
	
  5.6

  	
   

  	
  Payment of Taxes

  	
   

  	
  68

  
	
  5.7

  	
   

  	
  Performance of Agreements; Material Contracts

  	
   

  	
  69

  
	
  5.8

  	
   

  	
  Governmental Regulation

  	
   

  	
  69

  
	
  5.9

  	
   

  	
  Securities Activities

  	
   

  	
  69

  
	
  5.10

  	
   

  	
  Employee Benefit Plans

  	
   

  	
  69

  
	
  5.11

  	
   

  	
  Certain Fees

  	
   

  	
  70

  
	
  5.12

  	
   

  	
  Environmental Protection

  	
   

  	
  70

  
	
  5.13

  	
   

  	
  Employee Matters

  	
   

  	
  71

  
	
  5.14

  	
   

  	
  Solvency

  	
   

  	
  71

  
	
  5.15

  	
   

  	
  Matters Relating to Collateral

  	
   

  	
  71

  
	
  5.16

  	
   

  	
  Disclosure

  	
   

  	
  72

  
	
  SECTION 6.

  	
  AFFIRMATIVE
  COVENANTS

  	
   

  	
  72

  
	
  6.1

  	
   

  	
  Financial Statements and Other Reports

  	
   

  	
  72

  
	
  6.2

  	
   

  	
  Existence, etc

  	
   

  	
  77

  
	
  6.3

  	
   

  	
  Payment of Taxes and Claims; Tax

  	
   

  	
  77

  
	
  6.4

  	
   

  	
  Maintenance of Properties; Insurance; Application of
  Net Insurance/ Condemnation Proceeds

  	
   

  	
  77

  
	
  6.5

  	
   

  	
  Inspection Rights; Lender Meeting

  	
   

  	
  79

  
	
  6.6

  	
   

  	
  Compliance with Laws, etc

  	
   

  	
  80

  
	
  6.7

  	
   

  	
  Environmental Matters

  	
   

  	
  80

  
	
  6.8

  	
   

  	
  Execution of Subsidiary Guaranty and Personal
  Property Collateral Documents After the Restatement Date

  	
   

  	
  81

  
	
  6.9

  	
   

  	
  Matters Relating to Additional Real Property
  Collateral

  	
   

  	
  82

  
	
  6.10

  	
   

  	
  Interest Rate Protection

  	
   

  	
  84

  
	
  6.11

  	
   

  	
  Deposit Accounts, Securities Accounts and Cash
  Management Systems

  	
   

  	
  84

  
	
  SECTION 7.

  	
  NEGATIVE
  COVENANTS

  	
   

  	
  85

  
	
  7.1

  	
   

  	
  Indebtedness

  	
   

  	
  85

  



 



 ii
 






 



 


	
  7.2

  	
   

  	
  Liens and Related Matters

  	
   

  	
  86

  
	
  7.3

  	
   

  	
  Investments; Acquisitions

  	
   

  	
  88

  
	
  7.4

  	
   

  	
  Restricted Junior Payments

  	
   

  	
  90

  
	
  7.5

  	
   

  	
  Financial Covenants

  	
   

  	
  91

  
	
  7.6

  	
   

  	
  Restriction on Fundamental Changes; Asset Sales

  	
   

  	
  91

  
	
  7.7

  	
   

  	
  Transactions with Shareholders and Affiliates

  	
   

  	
  92

  
	
  7.8

  	
   

  	
  Sales and Lease-Backs

  	
   

  	
  93

  
	
  7.9

  	
   

  	
  Conduct of Business

  	
   

  	
  93

  
	
  7.10

  	
   

  	
  Fiscal Year

  	
   

  	
  93

  
	
  7.11

  	
   

  	
  OFAC

  	
   

  	
  93

  
	
  SECTION 8.

  	
  EVENTS OF
  DEFAULT

  	
   

  	
  94

  
	
  8.1

  	
   

  	
  Failure to Make Payments When Due

  	
   

  	
  94

  
	
  8.2

  	
   

  	
  Default in Other Agreements

  	
   

  	
  94

  
	
  8.3

  	
   

  	
  Breach of Certain Covenants

  	
   

  	
  94

  
	
  8.4

  	
   

  	
  Breach of Warranty

  	
   

  	
  95

  
	
  8.5

  	
   

  	
  Other Defaults Under Loan Documents

  	
   

  	
  95

  
	
  8.6

  	
   

  	
  Involuntary Bankruptcy; Appointment of Receiver, etc

  	
   

  	
  95

  
	
  8.7

  	
   

  	
  Voluntary Bankruptcy; Appointment of Receiver, etc

  	
   

  	
  96

  
	
  8.8

  	
   

  	
  Judgments and Attachments

  	
   

  	
  96

  
	
  8.9

  	
   

  	
  Dissolution

  	
   

  	
  96

  
	
  8.10

  	
   

  	
  Employee Benefit Plans

  	
   

  	
  96

  
	
  8.11

  	
   

  	
  Change in Control

  	
   

  	
  96

  
	
  8.12

  	
   

  	
  Invalidity of Loan Documents; Failure of Security;
  Repudiation of Obligations

  	
   

  	
  97

  
	
  SECTION 9.

  	
  ADMINISTRATIVE
  AGENT

  	
   

  	
  98

  
	
  9.1

  	
   

  	
  Appointment

  	
   

  	
  98

  
	
  9.2

  	
   

  	
  Powers and Duties; General Immunity

  	
   

  	
  99

  
	
  9.3

  	
   

  	
  Independent Investigation by Lenders; No
  Responsibility For Appraisal of Creditworthiness

  	
   

  	
  101

  
	
  9.4

  	
   

  	
  Right to Indemnity

  	
   

  	
  101

  
	
  9.5

  	
   

  	
  Resignation of Administrative Agent; Successor
  Administrative Agent and Swing Line Lender

  	
   

  	
  102

  
	
  9.6

  	
   

  	
  Collateral Documents and Guaranties

  	
   

  	
  102

  



 



 iii
 






 



 


	
  9.7

  	
   

  	
  Duties of Other Agents

  	
   

  	
  104

  
	
  9.8

  	
   

  	
  Administrative Agent May File Proofs of Claim

  	
   

  	
  104

  
	
  SECTION 10.

  	
  MISCELLANEOUS

  	
   

  	
  105

  
	
  10.1

  	
   

  	
  Successors and Assigns; Assignments and
  Participations in Loans and Letters of Credit

  	
   

  	
  105

  
	
  10.2

  	
   

  	
  Expenses

  	
   

  	
  108

  
	
  10.3

  	
   

  	
  Indemnity

  	
   

  	
  109

  
	
  10.4

  	
   

  	
  Set-Off

  	
   

  	
  110

  
	
  10.5

  	
   

  	
  Ratable Sharing

  	
   

  	
  111

  
	
  10.6

  	
   

  	
  Amendments and Waivers

  	
   

  	
  111

  
	
  10.7

  	
   

  	
  Independence of Covenants

  	
   

  	
  113

  
	
  10.8

  	
   

  	
  Notices; Effectiveness of Signatures

  	
   

  	
  113

  
	
  10.9

  	
   

  	
  Survival of Representations, Warranties and
  Agreements

  	
   

  	
  114

  
	
  10.10

  	
   

  	
  Failure or Indulgence Not Waiver; Remedies
  Cumulative

  	
   

  	
  114

  
	
  10.11

  	
   

  	
  Marshalling; Payments Set Aside

  	
   

  	
  114

  
	
  10.12

  	
   

  	
  Severability

  	
   

  	
  115

  
	
  10.13

  	
   

  	
  Obligations Several; Independent Nature of Lenders’
  Rights; Damage Waiver

  	
   

  	
  115

  
	
  10.14

  	
   

  	
  Release of Security Interest or Guaranty

  	
   

  	
  115

  
	
  10.15

  	
   

  	
  Applicable Law

  	
   

  	
  116

  
	
  10.16

  	
   

  	
  Construction of Agreement; Nature of Relationship

  	
   

  	
  116

  
	
  10.17

  	
   

  	
  Consent to Jurisdiction and Service of Process

  	
   

  	
  116

  
	
  10.18

  	
   

  	
  Waiver of Jury Trial

  	
   

  	
  117

  
	
  10.19

  	
   

  	
  Confidentiality

  	
   

  	
  117

  
	
  10.20

  	
   

  	
  USA Patriot Act

  	
   

  	
  118

  
	
  10.21

  	
   

  	
  Counterparts; Effectiveness

  	
   

  	
  119

  
	
  10.22

  	
   

  	
  Reaffirmation

  	
   

  	
  119

  




 iv
 






 



EXHIBITS


	
  I

  	
   

  	
  FORM OF NOTICE OF BORROWING

  
	
   

  	
   

  	
   

  
	
  II

  	
   

  	
  FORM OF NOTICE OF CONVERSION/CONTINUATION

  
	
   

  	
   

  	
   

  
	
  III

  	
   

  	
  FORM OF REQUEST FOR ISSUANCE

  
	
   

  	
   

  	
   

  
	
  IV

  	
   

  	
  FORM OF TERM NOTE

  
	
   

  	
   

  	
   

  
	
  V

  	
   

  	
  FORM OF REVOLVING NOTE

  
	
   

  	
   

  	
   

  
	
  VI

  	
   

  	
  FORM OF SWING LINE NOTE

  
	
   

  	
   

  	
   

  
	
  VII

  	
   

  	
  FORM OF COMPLIANCE CERTIFICATE

  
	
   

  	
   

  	
   

  
	
  VIII

  	
   

  	
  [INTENTIONALLY OMITTED]

  
	
   

  	
   

  	
   

  
	
  IX

  	
   

  	
  FORM OF ASSIGNMENT AGREEMENT

  
	
   

  	
   

  	
   

  
	
  X

  	
   

  	
  FORM OF FINANCIAL CONDITION CERTIFICATE

  
	
   

  	
   

  	
   

  
	
  XI

  	
   

  	
  FORM OF SUBSIDIARY GUARANTY

  
	
   

  	
   

  	
   

  
	
  XII

  	
   

  	
  FORM OF SECURITY AGREEMENT

  
	
   

  	
   

  	
   

  
	
  XIII

  	
   

  	
  FORM OF HOLDINGS GUARANTY

  




 v
 






 



SCHEDULES


	
  2.1

  	
   

  	
  REVOLVING LENDERS’ COMMITMENTS AND PRO RATA SHARES

  
	
   

  	
   

  	
   

  
	
  5.1

  	
   

  	
  SUBSIDIARIES OF HOLDINGS

  
	
   

  	
   

  	
   

  
	
  6.1

  	
   

  	
  FISCAL YEARS

  
	
   

  	
   

  	
   

  
	
  7.1

  	
   

  	
  PERMITTED INDEBTEDNESS

  
	
   

  	
   

  	
   

  
	
  7.2

  	
   

  	
  CERTAIN EXISTING LIENS

  
	
   

  	
   

  	
   

  
	
  7.3

  	
   

  	
  CERTAIN EXISTING INVESTMENTS

  
	
   

  	
   

  	
   

  
	
  7.7

  	
   

  	
  TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES

  



 



 vi















BARE ESCENTUALS BEAUTY, INC.


AMENDED AND RESTATED CREDIT AGREEMENT


This AMENDED AND RESTATED
CREDIT AGREEMENT is dated as of
December 20, 2006 and entered into by and among BARE
ESCENTUALS, INC., a Delaware corporation, formerly known as STB Beauty,
Inc. (“Holdings”), BARE
ESCENTUALS BEAUTY, INC., a Delaware corporation, formerly known as
MD Beauty, Inc. (“Company”), and BNP PARIBAS (“BNP Paribas”), as administrative
agent for Lenders (in such capacity, “Administrative Agent”).
Capitalized terms used herein have the meanings defined in subsection 1.1
below.


R E C I T A L S


WHEREAS, Company and Holdings
desire to amend and restate the terms of the Original Credit Agreement; and


WHEREAS, Lenders
have authorized Administrative Agent to execute this Amended and Restated
Credit Agreement on their behalf.


NOW, THEREFORE, in consideration
of the premises and the agreements, provisions and covenants herein contained,
each of Holdings, Company and Administrative Agent (on behalf of itself and
Lenders) agrees to amend and restate the terms of the Original Credit Agreement
as follows:


Section
1.              DEFINITIONS


1.1          Certain Defined Terms.


The following terms used in this Agreement shall have
the following meanings:


“Account” means,
with respect to any Person, all present and future rights of such Person to
payment for goods sold or leased or for services rendered (except those
evidenced by instruments or chattel paper), whether now existing or hereafter
arising and wherever arising.


“Additional Mortgaged
Property” has the meaning assigned to that term in subsection 6.9.


“Additional Mortgage”
has the meaning assigned to that term in subsection 6.9.


“Adjusted LIBOR” means, for each Interest Period in respect of
any LIBOR Loan, an interest rate per annum (rounded upward, if necessary, to
the nearest 1/100 of 1% determined pursuant to the following formula:


	
  Adjusted LIBOR =

  	
   

  	
  LIBOR

  
	
   

  	
   

  	
  1.00 –
  Eurodollar Reserve Percentage

  



 









 



Adjusted LIBOR shall be
adjusted automatically as of the effective date of any change in the Eurodollar
Reserve Percentage.


“Administrative Agent”
has the meaning assigned to that term in the introduction to this Agreement and
also means and includes any successor Administrative Agent appointed pursuant
to subsection 9.5A.


“Affected Lender”
has the meaning assigned to that term in subsection 2.6C.


“Affected Loans”
has the meaning assigned to that term in subsection 2.6C.


“Affiliate” as
applied to any Person, means 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 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.  Notwithstanding the foregoing, neither
Administrative Agent nor any Lender shall be deemed to be an “Affiliate” of any
Loan Party or any Affiliate thereof.


“Agreement”
means this Amended and Restated Credit Agreement dated as of December 20, 2006,
as it may be amended, supplemented or otherwise modified from time to time.


“Applicable
Consolidated Leverage Ratio” means, at any time, the ratio of (i)
Consolidated Total Debt (minus all Cash and Cash Equivalents held by any Loan
Party subject to a First Priority Lien) at such date to (ii) Consolidated
EBITDA for the four consecutive Fiscal Quarters most recently ended as of the
date for which a Compliance Certificate has been most recently delivered
pursuant to subsection 6.1(iv).


“Approved Fund”
means a Fund that is administered or managed by (i) a Lender, (ii) an Affiliate
of a Lender or (iii) an entity or an Affiliate of an entity that administers or
manages a Lender.


“Asset Sale”
means the sale (x) by Holdings or any of its Subsidiaries to any Person other
than Company or any Subsidiary Guarantor (or, in the case of stock of a Foreign
Subsidiary, Holdings) or (y) by any Foreign Subsidiary to any Person other than
any of the Subsidiaries of Holdings of, in each case, (i) any of the stock
of any of the Subsidiaries of Holdings (other than Company),
(ii) substantially all of the assets of any division or line of business
of any of the Subsidiaries of Holdings, or (iii) any other assets (whether
tangible or intangible) of any of the Subsidiaries of Holdings (other than (a)
inventory (or other assets) sold, licensed, leased or disposed of in the
ordinary course of business, (b) sales, assignments, transfers or dispositions
of accounts in the ordinary course of business for purposes of collection and
(c) any such other assets to the extent that the aggregate value of such assets
sold in any single transaction or related series of transactions is equal to
$100,000 or less).


“Assignment Agreement”
means an Assignment and Assumption Agreement in substantially the form of Exhibit
IX annexed hereto.



 2
 






 



“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 (rounded upwards to the nearest 1/100 of
1%) equal to the greater of (i) the Prime Rate in effect on such day and (ii)
the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%.  If, for any reason, Administrative Agent
shall have determined (which determination shall be conclusive absent manifest
error) that it is unable to ascertain the Federal Funds Effective Rate,
including the inability or failure of Administrative Agent to obtain sufficient
quotations in accordance with the terms hereof, the Base Rate shall be
determined without regards to clause (ii) of the first sentence of this
definition until the circumstances giving rise to such inability no longer
exist.  Any change in the Base Rate due
to a change in the Prime Rate or the Federal Funds Effective Rate shall be
effective on the effective date of such change in the Prime Rate or the Federal
Funds Effective Rate, respectively.


“Base Rate Loans”
means Loans bearing interest at rates determined by reference to the Base Rate
as provided in subsection 2.2A.


“Base Rate Margin”
means the margin over the Base Rate used in determining the rate of interest of
Base Rate Loans pursuant to subsection 2.2A.


“Berkshire Partners”
means Berkshire Partners LLC, a Massachusetts limited liability company.


“Borrowing Base”
means, at any time, an amount equal to the Revolving Loan Commitment Amount
then in effect.


“Business Day”
means (i) for all purposes other than as covered by clause (ii) below, any day
excluding Saturday, Sunday and any day which is a legal holiday under the laws
of the State of New York or is a day on which banking institutions located in
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 LIBOR or any LIBOR 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”,
as applied to any Person, means any lease of any property (whether real,
personal or mixed) by that Person as lessee that, in conformity with GAAP, is
accounted for as a capital lease on the balance sheet of that Person.


“Capital Stock” means the capital stock or other equity
interests of a Person.


“Cash” means
money, currency or a credit balance in a 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



 3
 






 



one year after such date; (ii) marketable general
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 either (x) maturing within one year after such date and having, at
the time of the acquisition thereof, the highest rating obtainable from either
Standard and Poor’s (“S&P”) or Moody’s Investors Service, Inc. (“Moody’s”),
or (y) having as part of its security structure an irrevocable put option
carrying the highest rating obtainable from either S&P or Moody’s that is
exercisable by the holder within one year from acquisition thereof; (iii)
commercial paper maturing no more than 270 days 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) negotiable
certificates of deposit 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 has Tier 1 capital (as defined in such
regulations) of not less than $100,000,000; (v) shares of any money market
mutual fund operating under Rule2-a7 of the Investment Company Act of 1940
that, (a) has net assets of not less than $500,000,000, and (b) has the highest
rating obtainable from either S&P or Moody’s; and (vi) auction rate
securities having, at the time of the acquisition thereof, the highest rating
obtainable from either S&P or Moody’s; provided that the subsequent auction
thereof is not greater than 60 days from the date of acquisition thereof.


“Change in Control”
means any of the following:  (a) any “person”
or “group” (as such terms are used in sections 13(d) and 14(d) of the Exchange
Act, but excluding any employee benefit plan of such person and its
subsidiaries, and any person or entity acting in its capacity as trustee, agent
or other fiduciary or administrator of any such plan), excluding Permitted
Holders, shall become the beneficial owner, directly or indirectly, of 30% or
more of the capital stock of Company; or (b) the failure at any time of
Holdings to legally and beneficially own and control 100% of the issued and
outstanding shares of Capital Stock of Company or the failure at any time of
Holdings to have the ability to elect all of the Governing Body of
Company.  As used herein, the term “beneficially
own” or “beneficial ownership” shall have the meaning set forth in the Exchange
Act and the rules and regulations promulgated thereunder.


“Class” means,
as applied to Lenders, each of the following two classes of Lenders:  (i) Lenders having Revolving Loan
Exposure and (ii) Lenders having Term Loan Exposure.


 “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 Account”
has the meaning assigned to that term in the Security Agreement.


“Collateral Documents”
means the Security Agreement, the Foreign Pledge Agreements, the Mortgages,
Control Agreements and all other instruments or documents delivered by any Loan
Party pursuant to the Original Credit Agreement, this Agreement or any of the
other Loan Documents as the same may be amended, restated or otherwise modified
in connection with this Agreement or any of the other Loan Documents in order
to continue the



 4
 






 



Liens granted to Administrative Agent, on behalf of
Lenders, a Lien on any real, personal or mixed property of that Loan Party as
security for the Obligations.


“Collateral Location”
means any Real Property Asset or Leasehold Property where Collateral is
located.


“Commercial Letter of
Credit” means any letter of credit or similar instrument issued for
the purpose of providing the primary payment mechanism in connection with the
purchase of any materials, goods or services by Company or any of its
Subsidiaries in the ordinary course of business of Company or such Subsidiary.


“Commitments”
means the commitments of Lenders to make Loans as set forth in subsection 2.1A
and subsection 3.3B.


“Company” has
the meaning assigned to that term in the introduction to this Agreement.


“Compliance Certificate”
means a certificate substantially in the form of Exhibit VII
annexed hereto.


“Conforming Letter of
Credit” means a letter of credit in form and substance reasonably
satisfactory to the Administrative Agent.


“Confidential Information
Memorandum” means the Confidential Information Memorandum circulated
by Administrative Agent in connection with the syndication
of the Loans and the Commitments.


“Consolidated Capital
Expenditures” means, for any period, the sum of the aggregate of all
expenditures (whether paid in cash or other consideration or accrued as a
liability and including that portion of Capital Leases which is capitalized on
the consolidated balance sheet of Holdings and its Subsidiaries) by Company and
all other Subsidiaries of Holdings during that period that, in conformity with
GAAP, are included in “additions to property, plant or equipment” or comparable
items reflected in the consolidated statement of cash flows of Holdings and its
Subsidiaries; provided that for purposes of this definition, the
purchase price of assets that are purchased simultaneously with the trade-in of
existing assets of a similar type and nature or with the application of Net
Insurance/Condemnation Proceeds or Net Asset Sale Proceeds (to the extent
permitted hereunder) shall be included in Consolidated Capital Expenditures
only to the extent of the gross amount of such purchase price less the credit
granted by the seller of such assets for the assets being traded in at such
time or the amount of such net proceeds, as the case may be; and provided,
further that Consolidated Capital Expenditures shall exclude (i)
acquisition costs in Permitted Acquisitions, (ii) Permitted Equity Contribution
Capex, and (iii) costs of leasehold improvements to the extent either paid for
by landlords or, if paid for by the Subsidiaries of Holdings, reimbursed by
landlords, in each case so long as none of the Subsidiaries of Holdings has any
obligation to pay, reimburse or repay, as the case may be, any portion of such
amounts in any circumstances.


 “Consolidated Cash Interest Expense” means, for any period,
Consolidated Interest Expense for such period excluding, however,
any interest expense not payable in Cash.



 5
 






 



“Consolidated Current
Assets” means, as at any date of determination, the total assets of
Company and all other Subsidiaries of Holdings on a consolidated basis which
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 all other Subsidiaries of Holdings on a consolidated
basis which may properly be classified as current liabilities in conformity
with GAAP, excluding the current portions of Funded Debt and Capital Leases.


“Consolidated EBITDA”
means, for any period, the sum, without duplication, of the amounts for such
period of (i) Consolidated Net Income, (ii) Consolidated Interest Expense,
(iii) taxes paid or provisions for taxes based on income, (iv) total
depreciation expense, (v) total amortization expense, (vi) other non-cash items
(including, without limitation, non-cash effect of any purchase accounting,
write-down of intangibles and marking hedges to market), (vii) non-cash
employee compensation expenses, (viii) Management Fees paid during such period,
(viii) Transaction Costs and any other non-recurring or extraordinary Cash costs
incurred in such period, provided that the aggregate amount of such other
non-recurring or extraordinary Cash costs included in this clause (ix) shall
not exceed $3,000,000 in any one Fiscal Year or $9,000,000 in the aggregate
from and after the Original Closing Date, and (x) reasonable and customary
expenses incurred in such period and associated with an IPO; provided
that the aggregate amount of such expenses 
included in this clause (x) shall not exceed $2,500,000, but only, in
the case of clauses (ii)-(x), to the extent deducted in the calculation of
Consolidated Net Income, less other non-cash items added in the calculation of
Consolidated Net Income (other than any such non-cash item to the extent it
will result in the receipt of cash payments in any future period), all of the
foregoing as determined on a consolidated basis for Holdings and its
Subsidiaries in conformity with GAAP. 
Notwithstanding anything contained herein to the contrary, the creation
and reversal of reserves in the ordinary course of business shall not
constitute non-cash items for purposes of calculating Consolidated EBITDA.


“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 EBITDA (but determined by adding back thereto, but without
duplication, any amounts deducted in the calculation of Consolidated Net Income
for such period that were paid, incurred or accrued in violation of any of the
provisions of this Agreement) and (b) the Consolidated Working Capital
Adjustment minus (ii) the sum, without duplication, of the amounts for such
period of (a) scheduled repayments of Consolidated Total Debt (excluding
repayments of Revolving Loans or Swing Line Loans except to the extent the
Revolving Loan Commitment Amount is permanently reduced in connection with such
repayments, and repayments of Indebtedness that is not incurred in compliance
with subsection 7.1), (b) Consolidated Capital Expenditures (net proceeds of any
related financing with respect to such expenditures) (c) Consolidated Cash
Interest Expense in respect of Indebtedness incurred in compliance with
subsection 7.1, (d) current taxes based on income of Holdings and its
Subsidiaries paid in cash such period, (e) Management Fees paid in cash during
such period, and (f) any cash consideration paid during such period by Company
or any of its Subsidiaries in connection with any Permitted Acquisition (net of
any amount of Indebtedness incurred or assumed or proceeds of any equity
received, in connection therewith), and (g) Transaction Costs, expenses
associated with an IPO, and any other non recurring or



 6
 






 



extraordinary Cash costs, in each case incurred in
such period and added to Consolidated Net Income in the calculation of
Consolidated EBITDA for such period; provided that for Fiscal Year 2006, all
components of Consolidated Excess Cash Flow shall be calculated for the period
from June 7, 2006 to January 1, 2007.


“Consolidated Interest
Expense” means, for any period, total interest expense paid in or
payable in respect of such period (including that portion attributable to
Capital Leases in accordance with GAAP and capitalized interest) of Company and
all other Subsidiaries of Holdings on a consolidated basis with respect to all
outstanding Indebtedness of Company and all other Subsidiaries of Holdings,
including all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers’ acceptance financing, net costs under
Interest Rate Agreements, and amounts referred to in subsection 2.3
payable to Administrative Agent and Lenders that are considered interest
expense in accordance with GAAP, but excluding, however, any such amounts
referred to in subsection 2.3 payable on or before the Original Closing Date.


“Consolidated
Leverage Ratio” means, as of the last day of any Fiscal Quarter, the
ratio of (i) Consolidated Total Debt (minus all Cash and Cash
Equivalents held by any Loan Party on the last day of such Fiscal Quarter
subject to a First Priority Lien) as at such date to (ii) Consolidated EBITDA
for the consecutive four Fiscal Quarters ending on such date.


“Consolidated Net Income”
means, for any period, the net income (or loss) of Company and all other
Subsidiaries of Holdings on a consolidated basis for such period taken as a
single accounting period determined in conformity with GAAP; provided
that there shall be excluded (i) the income (or loss) of any Person (other
than a Subsidiary of Holdings) in which any other Person (other than Company or
any other Subsidiary of Holdings) 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, (ii) the income (or
loss) of any Person accrued prior to the date it becomes a Subsidiary of
Holdings or is merged into or consolidated with Company or any other Subsidiary
of Holdings or that Person’s assets are acquired by Company or any other
Subsidiary of Holdings, (iii) the income (or loss) of any Subsidiary of
Holdings 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, (iv) any after-tax gains or losses attributable to asset sales
or returned surplus assets of any Pension Plan, and (v) (to the extent not
included in clauses (i) through (iv) above) any net extraordinary gains or
net non-cash extraordinary losses.


“Consolidated Total Debt”
means, as at any date of determination, the aggregate stated balance sheet
amount of all Indebtedness of Company and all other Subsidiaries of Holdings,
determined on a consolidated basis in accordance with GAAP.


“Consolidated Working
Capital” means, as at
any date of determination, the excess (or deficit) 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



 7
 






 



Working Capital as of the beginning of such period
exceeds (or is less than) Consolidated Working Capital as of the end of such
period.


“Contingent Obligation”
means, as applied to any Person, any direct or indirect liability, contingent
or otherwise, of that Person (i) with respect to any Indebtedness, lease,
dividend or other obligation of another Person if the primary purpose or intent
thereof by the Person incurring the Contingent Obligation is to provide
assurance to the obligee of such obligation of another that such obligation of
another will be paid or discharged, or that any agreements relating thereto will
be complied with, or that the holders of such obligation will be protected (in
whole or in part) against loss in respect thereof, (ii) with respect to
any letter of credit issued for the account of that Person or as to which that
Person is otherwise liable for reimbursement of drawings, or (iii) under
Hedge Agreements.  Contingent Obligations
shall include (a) 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, (b) the obligation to make take-or-pay or similar
payments if required regardless of non-performance by any other party or
parties to an agreement, and (c) any liability of such Person for the
obligation of another through any agreement (contingent or otherwise)
(1) to purchase, repurchase or otherwise acquire such obligation or any
security therefor, 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 (2) 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 (1) or (2) of this sentence, the
primary purpose or intent thereof is as described in the preceding
sentence.  The amount of any Contingent
Obligation shall be equal to the amount of the obligation so guaranteed or otherwise
supported or, if less, the amount to which such Contingent Obligation is
specifically limited.


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


“Control Agreement” means an agreement, reasonably
satisfactory in form and substance to Administrative Agent, entered into in
connection with any Deposit Account, security account or commodity account
maintained by Holdings or any of its Subsidiaries, pursuant to which the
financial institution at which such account is maintained confirms and acknowledges
Administrative Agent’s security interest in, and after the occurrence and
during the continuance of an Event of Default and delivery of written notice,
sole dominion and control over, such account and limits its rights to set-off
with respect to amounts in such account.


“Currency Agreement”
means any foreign exchange contract, currency swap agreement, currency futures
contract, currency option contract, synthetic exchange rate cap or other
similar agreement or arrangement to which Company or any of its Subsidiaries is
a party.


“Deposit Account”
means a demand, time, savings, passbook or like account (including disbursement
accounts, remittance accounts and zero balance accounts) maintained



 8
 






 



with a bank, savings and loan association, credit
union or like organization, other than an account evidenced by a negotiable
certificate of deposit.


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


“Domestic Subsidiary”
means any Subsidiary of Company that is incorporated or organized under the
laws of the United States of America, any state thereof or in the District of
Columbia.


“Eligible Assignee”
means (A) (i) a commercial bank organized under the laws of the United
States or any state thereof; (ii) a savings and loan association or
savings bank organized under the laws of the United States or any state
thereof; (iii) a commercial bank organized under the laws of any other
country or a political subdivision thereof; provided that (x) such
bank is acting through a branch or agency located in the United States or
(y) such bank is organized under the laws of a country that is a member of
the Organization for Economic Cooperation and Development or a political
subdivision of such country; and (iv) any other entity that is an “accredited
investor” (as defined in Regulation D under the Securities Act) that extends
credit or buys loans as one of its businesses including insurance companies,
mutual funds and lease financing companies, in each case (under clauses (i)
through (iv) above) that is acceptable to Administrative Agent; and
(B) any Lender, any Affiliate of any Lender and any Approved Fund of any
Lender; provided that none of any Sponsor, any Loan Party or any
Affiliate of any Sponsor or any Loan Party shall be an Eligible Assignee.


“Employee Benefit Plan”
means any (i) “employee benefit plan” as defined in Section 3(3) of ERISA which
is or, within the preceding six years, was maintained or contributed to by
Company or, any of its Subsidiaries or, solely with respect to liability under
Section 4980B of the Internal Revenue Code, any of their respective ERISA
Affiliates, and (ii) any Pension Plan.


“Environmental Claim”
means any investigation, notice, notice of violation, claim, action, suit,
proceeding, demand, abatement order or other order or directive (conditional or
otherwise), by any Government 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 Materials 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 common law duties or obligations, statutes,
ordinances, orders, rules, regulations, guidance documents, judgments,
Governmental Authorizations, or any other requirements of any Government
Authority 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, industrial hygiene, land use or the protection of human,
plant or animal health or welfare, in any manner applicable to Holdings,
Company or any of their Subsidiaries or any Facility.



 9
 






 



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


“ERISA Affiliate”, as applied to any Person, means (i) any corporation
that 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) that 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)
solely with respect to liability under Section 4980B of the Internal Revenue
Code, 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.  Any
former ERISA Affiliate of a Person or any of its Subsidiaries shall continue to
be considered an ERISA Affiliate of such Person or such Subsidiary within the
meaning of this definition to the extent that such Person or such Subsidiary
could reasonably expected to have any liability with respect thereto under the
Internal Revenue Code or ERISA.


“ERISA Event”
means (i) a “reportable event” within the meaning of Section 4043 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 (other than an
immaterial failure to make such an installment payment) or the failure to make
any required contribution to a Multiemployer 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 Company, 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 pursuant to Section 4063 or 4064 of ERISA; (v) the
institution by the PBGC of proceedings to terminate any Pension Plan, or the
occurrence of any event or condition which could be reasonably likely to
constitute grounds under ERISA for the termination of, or the appointment by
PBGC of a trustee to administer, any Pension Plan; (vi) the imposition of
liability on Company, 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 withdrawal of Company, any
of its Subsidiaries or any of their respective ERISA Affiliates in a complete
or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA)
from any Multiemployer Plan if there is any potential liability therefor, or
the receipt by Company, any of its Subsidiaries or any of their respective
ERISA Affiliates of notice from any Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that
it intends to terminate or has terminated under Section 4041A or 4042 of ERISA;
(viii) the assertion of a material claim (other than routine claims for
benefits) against any Employee Benefit Plan other than a Multiemployer Plan or
the assets thereof, or against Company, 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



 10
 






 



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 Reserve Percentage” means the reserve percentage (expressed as a
decimal, rounded upward, if necessary, to the nearest 1/100 of 1%) in effect on
the date LIBOR for such Interest Period is determined (whether or not
applicable to any Lender) under regulations issued from time to time by the
Federal Reserve Board for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve requirement)
with respect to Eurocurrency funding (currently referred to as “Eurocurrency
liabilities”) having a term comparable to such Interest Period.


“Event of Default”
means each of the events set forth in Section 8.


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


“Existing Revolving Loan
Commitments” means the “Revolving Loans Commitments” as defined in
the Original Credit Agreement and outstanding as of the Restatement Date.


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


“Federal Funds Effective
Rate” means, for any period, a fluctuating interest rate expressed
as a decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%
equal for each day during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published for such day (or, if such day
is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day
which is a Business Day, the average of the quotations for such day on such
transactions received by Administrative Agent from three Federal funds brokers
of recognized standing selected by Administrative Agent.


“Financial Plan”
has the meaning assigned to that term in subsection 6.1(xi).


“First Priority”
means, with respect to any Lien purported to be created in any Collateral
pursuant to any Collateral Document, that (i) such Lien is perfected and has
priority over any other Lien on such Collateral (other than Liens permitted
pursuant to subsection 7.2) and (ii) such Lien is the only Lien (other than
Liens permitted pursuant to subsection 7.2) to which such Collateral is
subject.


“Fiscal Quarter” means a fiscal quarter
of any Fiscal Year (as reflected on Schedule 6.1 annexed hereto).



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“Fiscal Year” means the fiscal year of
Holdings and its Subsidiaries ending on the Fiscal Year End.


“Fiscal Year End” means,
for any Fiscal Year, the applicable Fiscal Year End reflected on Schedule
6.1 annexed hereto.


“Flood Hazard Property”
means an Additional Mortgaged Property located in an area designated by the
Federal Emergency Management Agency as having special flood or mud slide
hazards.


“Foreign Pledge Agreement”
means each pledge agreement or similar instrument governed by the laws of a
country other than the United States, executed on the Original Closing Date or
from time to time thereafter in accordance with subsection 6.8 by Holdings,
Company or any Domestic Subsidiary that owns Capital Stock of one or more
Foreign Subsidiaries organized in such country, in form and substance satisfactory
to Administrative Agent, as such Foreign Pledge Agreement may be amended,
supplemented or otherwise modified from time to time.


“Foreign Subsidiary”
means any Subsidiary of Holdings or Company that is not a Domestic Subsidiary.


“Fund” means any Person (other than a natural Person)
that is (or will be) engaged in making, purchasing, holding or otherwise
investing in commercial loans and similar extensions of credit in the ordinary
course of its business.


“Funded Debt”
shall mean (i) all Indebtedness, and any other liabilities, and obligations,
now existing or hereafter arising, for money borrowed by the Loan Parties
(which shall be deemed to include all notes issued or other liabilities or
obligations for money borrowed by any Loan Party to its shareholders), whether
or not evidenced by any note, indenture, or agreement (including, without
limitation, the Notes and any Indebtedness for money borrowed from an Affiliate
of any Loan Party) and (ii) without duplication, all Indebtedness of others for
money borrowed (including Indebtedness of an Affiliate of any Loan Party) with
respect to which any Loan Party has become liable by way of a guarantee or
indemnity.  The term “Funded Debt” shall
not include any trade payables or other liabilities not for borrowed money (or
guarantees thereof) incurred in the ordinary course of business and
constituting current obligations of the Loan Parties.


“Funding and Payment Office”
means (i) the office of Administrative Agent and Swing Line Lender located at
787 Seventh Avenue, New York, New York 10019, or (ii) such other office of
Administrative Agent and Swing Line Lender as may from time to time hereafter
be designated as such in a written notice delivered by Administrative Agent and
Swing Line Lender to Company and each Lender.


“Funding Date”
means the date of funding of a Loan.


“GAAP” means,
subject to the limitations on the application thereof set forth in subsection
1.2, generally accepted accounting principles as in effect in the United States
of America and set forth in opinions and pronouncements of the Accounting
Principles Board of the



 12
 






 



American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant
segment of the accounting profession, in each case as the same are applicable
to the circumstances as of the date of determination.


“Governing Body”
means the board of directors or other body having the power to direct or cause
the direction of the management and policies of a Person that is a corporation,
partnership, trust or limited liability company.


“Government Authority”
means any political subdivision or department thereof, any other governmental
or regulatory body, commission, central bank, board, bureau, organ or
instrumentality or any court, in each case whether federal, state, local or
foreign (including supra-national bodies such as the European Union or the
European Central Bank).


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


“Guaranties”
means the Holdings Guaranty and the Subsidiary Guaranty.


“Hazardous Materials”
means (i) any chemical, material or substance at any time defined as or
included in the definition of “hazardous substances”, “hazardous wastes”, “hazardous
materials”, “extremely hazardous waste”, “acutely hazardous waste”, “radioactive
waste”, “biohazardous waste”, “pollutant”, “toxic pollutant”, “contaminant”, “restricted
hazardous waste”, “infectious waste”, “toxic substances”, or any other term or
expression intended to define, list or classify substances by reason of
properties harmful to health, safety or the indoor or outdoor environment
(including harmful properties such as ignitability, corrosivity, reactivity,
carcinogenicity, toxicity, reproductive toxicity, “TCLP toxicity” or “EP
toxicity” or words of similar import under any applicable Environmental Laws);
(ii) any oil, petroleum, petroleum fraction or petroleum derived
substance; (iii) any drilling fluids, produced waters and other wastes
associated with the exploration, development or production of crude oil,
natural gas or geothermal resources; (iv) any flammable substances or
explosives; (v) any radioactive materials; (vi) any
asbestos-containing materials; (vii) urea formaldehyde foam insulation;
(viii) electrical equipment which contains any oil or dielectric fluid
containing polychlorinated biphenyls; (ix) pesticides; and (x) any
other chemical, material or substance, exposure to which is prohibited, limited
or regulated by any Government Authority or which may or could pose a hazard to
the health and safety of the owners, occupants or any Persons in the vicinity
of any Facility or to the indoor or outdoor environment.


“Hazardous Materials
Activity” means any past, current, proposed or threatened activity,
event or occurrence involving any Hazardous Materials, including the use,
manufacture, possession, storage, holding, presence, existence, location,
Release, threatened Release, discharge, placement, generation, transportation,
processing, construction, 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.



 13
 






 



“Hedge Agreement”
means an Interest Rate Agreement or a Currency Agreement designed to hedge
against fluctuations in interest rates or currency values, respectively.


“Holdings” has
the meaning assigned to that term in the introduction to this Agreement.


“Holdings Common Stock”
means the common stock of Holdings, par value $0.01 per share.


“Holdings Guaranty”
means the Holdings Guaranty executed and delivered by Holdings on the Original
Closing Date, substantially in the form of Exhibit XIII annexed hereto,
as such Holdings Guaranty may thereafter be amended, supplemented or otherwise
modified from time to time.


“Indebtedness”
means as applied to any Person, (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 trade
payables incurred in the ordinary course of business and constituting current
obligations), (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), which purchase price is (a) due more than six months from
the date of incurrence of the obligation in respect thereof or (b) evidenced by
a note, (v) Synthetic Lease Obligations, and (vi) 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. 
Obligations under Interest Rate Agreements and Currency Agreements
constitute (1) in the case of Hedge Agreements, Contingent Obligations, and (2)
in all other cases, Investments, and in neither case constitute Indebtedness.


“Indemnified Liabilities” has the meaning assigned to
that term in subsection 10.3.


“Indemnitee” has
the meaning assigned to that term in subsection 10.3.


“Insolvency
Event” means, with respect
to any Person, that (i) a court with jurisdiction over such Person shall enter
a decree or order for relief in respect of the Person 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 such Person or any of
its Subsidiaries 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 an involuntary case shall be commenced against such
Person 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 such Person or any of its
Subsidiaries, or over all or a



 14
 






 



substantial part of its
property, shall have been entered; or there shall have occurred the involuntary
appointment of an interim receiver, trustee or other custodian of such Person
or any of its Subsidiaries for all or a substantial part of its property; or
(ii) a warrant of attachment, execution or similar process shall have been
issued against any substantial part of the property of such Person or any of
its Subsidiaries, and any such event described in this clause (ii) shall
continue for 30 days unless dismissed, bonded or discharged.


“Insolvency or Liquidation Proceeding” means (a) any voluntary
or involuntary case or proceeding under the Bankruptcy Code with respect to any
Loan Party as a debtor, (b) any other voluntary or involuntary insolvency,
reorganization or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding with respect to
any Loan Party as a debtor or with respect to any substantial part of their
respective assets, (c) any liquidation, dissolution, reorganization or winding
up of any Loan Party whether voluntary or involuntary and whether or not
involving insolvency or bankruptcy or (d) any assignment for the benefit of
creditors or any other marshalling of assets and liabilities of any Loan Party.


“Intellectual Property”
means all patents, trademarks, tradenames, copyrights, technology, software,
know-how and processes used in or necessary for the conduct of the business of
Company and all other Subsidiaries of Holdings as currently conducted that are
material to the condition (financial or otherwise), business or operations of
Company and all other Subsidiaries of Holdings taken as a whole.


“Interest Payment Date”
means (i) with respect to any Base Rate Loan, each March 31,
June 30, September 30 and December 31 of each year, commencing
on the first such date to occur after the Original Closing Date, and
(ii) with respect to any LIBOR Loan, the last day of each Interest Period
applicable to such Loan; provided that in the case of each Interest
Period of longer than three months “Interest Payment Date”
shall also include the date that is three months, or any integral multiple
thereof, after the commencement of such Interest Period.


“Interest Period”
has the meaning assigned to that term in subsection 2.2B.


“Interest Rate Agreement”
means any interest rate swap agreement, interest rate cap agreement, interest
rate collar agreement or other similar agreement or arrangement to which
Company or any of its Subsidiaries is a party.


“Interest Rate
Determination Date” means, with respect
to any Interest Period, the second Business Day 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.


“Inventory”
means, with respect to any Person as of any date of determination, all goods,
merchandise and other personal property which are then held by such Person for
sale or lease, including raw materials and work in process.


“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 Securities
of any other Person (including any Subsidiary of Holdings), (ii) any
direct or indirect redemption, retirement,



 15
 






 



purchase or other acquisition for value, by any
Subsidiary of Holdings from any Person other than Company or any other
wholly-owned Subsidiary of Holdings, of any equity Securities of such
Subsidiary, (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 (other
than a wholly-owned Subsidiary of Holdings), 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
but excluding accounts receivable that are not so included, or (iv) Interest
Rate Agreements or Currency Agreements not constituting Hedge Agreements. The
amount of any Investment shall be the original cost of such Investment plus
the cost of all additions thereto, without any adjustments for increases or
decreases in value, or write-ups, write-downs or write-offs with respect to
such Investment (other than adjustments for the repayment of, or the refund of
capital with respect to, the original principal amount of any such Investment).


“IP Collateral”
means, collectively, the Intellectual Property that constitutes Collateral
under the Security Agreement.


“IP Filing Office”
means the United States Patent and Trademark Office, the United States
Copyright Office or any successor or substitute office in which filings are
necessary or, in the opinion of Administrative Agent, desirable in order to
create or perfect Liens on any IP Collateral.


“IPO” means the consummation of an initial public
offering of any of Holdings’ equity Securities.


“Issuing Lender”
means, with respect to any
Letter of Credit, the Revolving Lender that agrees or is otherwise obligated to
issue such Letter of Credit, determined as provided in subsection 3.1B(ii).


“JH Partners”
means JH Partners LLC f/k/a Jesse.Hansen & Co., LLC, a Delaware limited
liability company.


“Joint Venture”
means a joint venture, partnership or other similar arrangement, whether in
corporate, partnership or other legal form.


“Leasehold Property”
means any leasehold interest of any Loan Party as lessee under any lease of
real property.


“Lender” and “Lenders” means the Persons for whom Loans or Commitments are
listed in the Register on the Restatement Date, together with their successors
and permitted assigns pursuant to subsection 10.1, and the term “Lenders” shall
include Swing Line Lender unless the context otherwise requires; provided that
the term “Lenders”, when used in the context of a particular Commitment, shall
mean Lenders having that Commitment.


“Lender Hedge Agreement”
means any Hedge Agreement entered into by Company or any of its Subsidiaries
and one or more Lenders or Affiliates thereof pursuant to the terms of this
Agreement.



 16














 


“Letter of Credit”
or “Letters of Credit” means Commercial
Letters of Credit and Standby Letters of Credit issued or to be issued by
Issuing Lenders for the account of Company pursuant to subsection 3.1.


“Letter of Credit Usage”
means, as at any date of determination, the sum of (i) the maximum
aggregate amount which is or at any time thereafter may become available for
drawing under all Letters of Credit then outstanding plus (ii) the
aggregate amount of all drawings under Letters of Credit honored by Issuing
Lenders and not theretofore reimbursed out of the proceeds of Revolving Loans
pursuant to subsection 3.3B or otherwise reimbursed by Company.


“LIBOR” means,
for any Interest Rate Determination Date with respect to an Interest Period for
a LIBOR Loan, the London interbank offered rate, rounded upward, if necessary,
to the nearest 1/100 of 1%, equal to the offered rate for deposits in Dollars
for a period equal to such Interest Period, commencing on the first day of such
Interest Period, which appears on Telerate Page 3750 (or such other page as may
replace Telerate Page 3750 on that service or any successor service for the
purpose of displaying London interbank offered rates of major banks) as of
11:00 A.M. (London time), on the Interest Rate Determination Date for such
Interest Period.  If the LIBOR rate for
an Interest Period cannot be determined pursuant to the preceding sentence,
then the LIBOR rate for such Interest Period shall be determined on the basis
of the rates at which deposits in Dollars are offered to BNP Paribas at
approximately 11:00 A.M. (London time) on the Interest Rate Determination Date
for such Interest Period, and on an amount that is approximately equal to the
principal amount of the LIBOR Loans to which such Interest Period is applicable.  Administrative Agent will request the
principal London office of BNP Paribas to provide a quotation of its rate.


“LIBOR Loans”
means Loans bearing interest at rates determined by reference to Adjusted LIBOR
as provided in subsection 2.2A.


“LIBOR Margin”
means the margin over Adjusted LIBOR used in determining the rate of interest
of LIBOR Loans pursuant to subsection 2.2A.


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


“Loan” or “Loans” means one or more of the Loans made by Lenders to
Company either (i) pursuant to the Original Credit Agreement and outstanding on
the Restatement Date, (ii) on the Restatement Date pursuant to the Sixth
Amendment to the Original Credit Agreement, dated as of the date hereof, or
(iii) pursuant to subsection 2.1A.


“Loan Documents”
means this Agreement, the Notes, Letters of Credit (and any applications for,
or reimbursement agreements or other documents or certificates executed by
Company in favor of an Issuing Lender relating to, the Letters of Credit), the
Guaranties, the Collateral Documents, each Compliance Certificate, each Lender
Hedge Agreement, each certificate, each fee letter, and each other instrument,
document and agreement from time to time



 17
 






 



delivered by any Loan Party pursuant to this
Agreement, the Original Credit Agreement, any Original Loan Documents or any
other Loan Document and all amendments, waivers and consents relating thereto.


“Loan Party”
means each of Holdings, Company
and any of Company’s Subsidiaries from time to time executing a Loan Document,
and “Loan Parties” means all such Persons,
collectively.


“Management Agreements”
means collectively, (i) that certain Management Agreement dated as of June 10,
2004 by and between JH Partners and Company, as amended by The First Amendment
to Management Agreement dated as of February 18, 2004 and (ii) that certain
Management Agreement dated as of June 10, 2004 by and between Berkshire
Partners and Company, as amended by The First Amendment to Management Agreement
dated as of February 18, 2004, as such agreements are in effect on the
Restatement Date.  The Management
Agreements were terminated on October 4, 2006.


“Management Fees”
means management fees, expense reimbursements and any other payments paid by
Company pursuant to the Management Agreements prior to November 1, 2006.


“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 (i) a material adverse effect upon the business, operations,
properties, assets, condition (financial or otherwise) or prospects of Holdings
and its Subsidiaries taken as a whole or (ii) the impairment (other than
by reasons of the type set forth in clause (i)) of the ability of any Loan
Party to perform, or of Administrative Agent or Lenders to enforce, the
Obligations.


“Material Contract”
means any contract or other arrangement to which Holdings, Company or any of
their Subsidiaries is a party (other than the Loan Documents) for which breach,
nonperformance, cancellation or failure to renew could have a Material Adverse
Effect.


“Mortgage” means
(i) a security instrument (whether designated as a deed of trust or a mortgage
or by any similar title) executed and delivered by any Loan Party, in form and
substance satisfactory to Administrative Agent in its reasonable discretion, in
each case with such changes thereto as may be recommended by Administrative
Agent’s local counsel based on local laws or customary local mortgage or deed
of trust practices, or (ii) at Administrative Agent’s option, in the case of an
Additional Mortgaged Property, an amendment to an existing Mortgage, in form
satisfactory to Administrative Agent, adding such Additional Mortgaged Property
to the Real Property Assets encumbered by such existing Mortgage, in either
case as such security instrument or amendment may be amended, supplemented or
otherwise modified from time to time.  “Mortgages” means all such instruments, including any
Additional Mortgages, collectively.


“Multiemployer Plan”
means any “multiemployer plan” as defined in Section 3(37) of ERISA, to which
Company, any other Subsidiary of Holdings or ERISA Affiliate of



 18
 






 



Company or any other Subsidiary of Holdings currently
contributes or is obligated to contribute, or with respect to which Company,
any Subsidiary or any ERISA Affiliate has or could reasonably be expected to
have any liability (whether absolute or contingent).


“Net Asset Sale Proceeds”
means, with respect to any Asset Sale, 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 from such
Asset Sale, net of any bona fide direct costs or expenses incurred by
Holdings, Company or any of their Subsidiaries in connection with such Asset
Sale, including (i) income taxes reasonably estimated to be actually
payable by Holdings, Company or any of their Subsidiaries within two years of
the date of such Asset Sale as a result of any gain recognized in connection
with such Asset Sale and (ii) payment of the outstanding principal amount
of, premium or penalty, if any, and interest on any Indebtedness (other than
the Loans) that is (a) secured by a Lien on the stock or assets in question and
that is required to be repaid under the terms thereof or under applicable law
as a result of such Asset Sale and (b) actually paid at the time of receipt of
such cash payment to a Person that is not an Affiliate of any Loan Party or of
any Affiliate of a Loan Party.


“Net Insurance/Condemnation
Proceeds” means any Cash payments or proceeds received by Holdings,
Company, or any of their Subsidiaries (i) under any business interruption or
casualty insurance policy in respect of a covered loss thereunder or (ii) as a
result of the taking of any assets of Holdings, Company or any of their
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, in each case net of
any (a) actual and reasonable documented costs incurred by Holdings, Company or
any of their Subsidiaries in connection with the adjustment or settlement of
any claims of Holdings, Company or such Subsidiary in respect thereof and (b)
any reasonable costs incurred in connection with any sale of such assets as
referred to in clause (ii) of this definition including, without limitation,
income taxes payable as a result of any gain recognized in connection
therewith.


“Net Securities Proceeds”
means the cash proceeds (net of underwriting discounts and commissions and
other reasonable costs and expenses associated therewith, including reasonable
legal fees and expenses) from the issuance of Securities of or the incurrence
of Indebtedness by Holdings, Company or any of their Subsidiaries.


“Non-US Lender”
means a Lender that is organized under the laws of any jurisdiction other than
the United States or any state or other political subdivision thereof.


“Notes” means
one or more of the Term Notes, Revolving Notes or Swing Line Note or any
combination thereof.


“Notice of Borrowing”
means a notice substantially in the form of Exhibit I annexed
hereto.


“Notice of
Conversion/Continuation” means a notice substantially in the form of
Exhibit II annexed hereto.



 19
 






 



“Obligations”
means all obligations of every nature of each Loan Party from time to time owed
to Administrative Agent, Lenders or any of them under the Loan Documents,
whether for principal, interest (including interest accruing on or after the
occurrence of an Insolvency Event), reimbursement of amounts drawn under
Letters of Credit, fees, expenses, indemnification or otherwise.


“OFAC” means the
Office of Foreign Assets Control of the United States Department of the
Treasury, or any successor office or agency.


“Officer” means
the president, chief executive officer, a vice president, chief financial
officer, treasurer, general partner (if an individual), managing member (if an
individual) or other individual appointed by the Governing Body or the
Organizational Documents of a corporation, partnership, trust or limited
liability company to serve in a similar capacity as any of the foregoing.


“Officer’s Certificate”
as applied to any Person that is a corporation, partnership, trust or limited
liability company, means a certificate executed on behalf of such Person by one
or more Officers of such Person or one or more Officers of a general partner or
a managing member if such general partner or managing member is a corporation,
partnership, trust or limited liability company.


“Operating Lease”
means, as applied to any Person, any lease
(including leases that may be terminated by the lessee at any time) of any
property (whether real, personal or mixed) that is not a Capital Lease other
than any such lease under which that Person is the lessor.


“Organizational Documents”
means the documents (including Bylaws, if applicable) pursuant to which a
Person that is a corporation, partnership, trust or limited liability company
is organized.


“Original  Closing Date” means February 18, 2005.


“Original Credit Agreement”
means that certain Credit Agreement, dated as of February 18, 2005, by and
among Company, Holdings, the financial institutions party thereto and BNP
Paribas, as amended to the date hereof.


“Original Loan Documents”
has the meaning ascribed to that term in subsection 1.4.


“Participant”
means a purchaser of a participation in the rights and obligations under this
Agreement pursuant to subsection 10.1C.


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


“Pension Plan”
means any employee benefit plan, within the meaning of Section 3(3) of
ERISA, other than a Multiemployer Plan, that is subject to Section 412 of the
Internal Revenue Code or Section 302 of ERISA that is currently maintained or
contributed to by the Company,



 20
 






 



any Subsidiary or any ERISA Affiliate, or with respect
to which the Company, any Subsidiary or any ERISA Affiliate has or could
reasonably be expected to have any liability (whether absolute or contingent).


“Permitted Acquisition”
has the meaning assigned to that term in subsection 7.3(x).


“Permitted Cure Issuance”
means the issuance of equity securities (or receipt of equity contributions) by
Holdings pursuant to subsection 8.3 for the purpose of curing an Event of
Default under subsection 7.5 (and made after the end of the Fiscal Quarter to which such Event of
Default applies), the proceeds of which are promptly contributed to
Company as common equity, in an amount no greater or less than the additional
amount of Consolidated EBITDA for the relevant Fiscal Quarter that would have
been needed in order to avoid such Event of Default.


“Permitted
Encumbrances” means the following types of Liens (excluding any such
Lien imposed pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue
Code or by ERISA, any such Lien relating to or imposed in connection with any
Environmental Claim, and any such Lien expressly prohibited by any applicable
terms of any of the Collateral Documents):


(i)                                     Liens
for taxes, assessments or governmental charges or claims the payment of which
is not, at the time, required by subsection 6.3;


(ii)                                  statutory
Liens of landlords, Liens of collecting banks under the UCC on items in the
course of collection, statutory Liens and rights of set-off of banks, statutory
Liens of carriers, warehousemen, mechanics, repairmen, workmen and materialmen,
and other Liens imposed by law, in each case incurred in the ordinary course of
business (a) for amounts not yet overdue or (b) for amounts that are overdue
and that (in the case of any such amounts overdue for a period in excess of 30
days) are being contested in good faith by appropriate proceedings, so long as
(1) such reserves or other appropriate provisions, if any, as shall be required
by GAAP shall have been made for any such contested amounts, and (2) in the
case of a Lien with respect to any portion of the Collateral, such contest
proceedings conclusively operate to stay the sale of any portion of the
Collateral on account of such Lien;


(iii)                               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 statutory obligations, bids, leases, government
contracts, trade contracts and other similar obligations (exclusive of
obligations for the payment of borrowed money), so long as no foreclosure, sale
or similar proceedings have been commenced with respect to any portion of the
Collateral on account thereof;


(iv)                              any
attachment or judgment Lien not constituting an Event of Default under
subsection 8.8;


(v)                                 licenses
(with respect to Intellectual Property and other property), leases or subleases
granted to third parties in accordance with any applicable terms of the
Collateral Documents and not interfering in any material respect with the
ordinary



 21
 






 



conduct of the
business of any Subsidiaries of Holdings or resulting in a material diminution
in the value of any Collateral as security for the Obligations;


(vi)                              easements,
rights-of-way, restrictions, encroachments, and other minor defects or
irregularities in title, in each case which do not and will not interfere in
any material respect with the ordinary conduct of the business of any
Subsidiaries of Holdings or result in a material diminution in the value of any
Collateral as security for the Obligations;


(vii)                           any
(a) interest or title of a lessor or sublessor under any lease not
prohibited by this Agreement, (b) Lien or restriction that the interest or
title of such lessor or sublessor may be subject to, or (c) subordination
of the interest of the lessee or sublessee under such lease to any Lien or
restriction referred to in the preceding clause (b), so long as the holder of
such Lien or restriction agrees to recognize the rights of such lessee or
sublessee under such lease;


(viii)                        Liens
arising from filing UCC financing statements relating solely to leases not
prohibited by this Agreement;


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


(x)                                   any
zoning or similar law or right reserved to or vested in any governmental office
or agency to control or regulate the use of any real property;


(xi)                                Liens
granted pursuant to the Collateral Documents;


(xii)                             Liens
securing obligations (other than obligations representing Indebtedness for
borrowed money) under operating, reciprocal easement or similar agreements
entered into in the ordinary course of business of Company and all other
Subsidiaries of Holdings; and


(xiii)                          Liens in
respect of an agreement to sell or otherwise transfer any  property, to the extent such sale or transfer
is permitted by subsection 7.6.


“Permitted Equity
Contribution Capex” means any expenditure by Company or any other
Subsidiary of Holdings for capital improvements financed by a non-refundable
cash equity contribution to Company or such Subsidiary; provided that
the aggregate amount of all such expenditures shall in no event exceed
$5,000,000.


“Permitted Holders”
means (i) Sponsors or any entity controlled thereby or any of the partners
thereof and/or (ii) any of the Permitted Transferees of any Person in clause
(i) hereof.


“Permitted Transferees”
means, with respect to any Person, (i) any Affiliates of such Person, (ii) the
heirs, executors, administrators, testamentary trustees, legatees or
beneficiaries of any such Person or (iii) a trust, the beneficiaries of which,
or a corporation or partnership, the stockholders, or general and limited
partners, of which, or a limited liability



 22
 






 



company, the members of which, include only such
Person or his or her spouse or lineal descendants, in each case to whom such
Person has transferred the beneficial ownership of any Securities of Holdings.


“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 Government Authorities.


“Pledged Collateral”
means collectively, the “Pledged Collateral” as defined in the Security
Agreement and any Foreign Pledge Agreement.


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


“Pricing Certificate”
means an Officer’s Certificate of Company certifying the Consolidated Leverage
Ratio as at the last day of any Fiscal Quarter and setting forth the
calculation of such Consolidated Leverage Ratio in reasonable detail.


“Prime Rate” means the rate that
BNP Paribas in New York announces from time to time as its prime rate, effective as of the date announced as the
effective date of any change in such prime rate. Without notice to Company or
any other Person, the Prime Rate shall change automatically from time to time
as and in the amount by which such prime rate shall fluctuate.  The Prime Rate is a reference rate and does
not necessarily represent the lowest or best rate actually charged to any
customer.  BNP Paribas or any other
Lender may make commercial loans or other loans at rates of interest at, above
or below the Prime Rate.


“Proceedings”
means any action, suit, proceeding (whether administrative, judicial or
otherwise), governmental investigation or arbitration.


“Pro Rata Share”
means (i) with respect to all payments, computations and other matters
relating to the Term Loan Commitment or the Term Loan of any Lender, the
percentage obtained by dividing (x) the Term Loan Exposure of that
Lender by (y) the aggregate Term Loan Exposure of all Lenders,
(ii) with respect to all payments, computations and other matters relating
to the Revolving Loan Commitment or the Revolving Loans of any Lender or any
Letters of Credit issued or participations therein deemed purchased by any
Lender or any assignments of any Swing Line Loans deemed purchased by any
Lender, the percentage obtained by dividing (x) the Revolving Loan
Exposure of that Lender by (y) the aggregate Revolving Loan
Exposure of all Lenders, and (iii) for all other purposes with respect to
each Lender, the percentage obtained by dividing (x) the sum of the
Term Loan Exposure of that Lender plus the Revolving Loan Exposure of
that Lender by (y) the sum of the aggregate Term Loan Exposure of
all Lenders plus the aggregate Revolving Loan Exposure of all Lenders,
in any such case as the applicable percentage may be adjusted by assignments
permitted pursuant to subsection 10.1 or required pursuant to subsection
10.5.  The initial Pro Rata Share of each
Revolving Lender for purposes of each of clause (ii) of the preceding sentence
is set forth opposite the name of that Lender in Schedule 2.1
annexed hereto.



 23
 






 



“Real Property Asset”
means, at any time of determination, any interest then owned by any Loan Party
in any real property including any fee or leasehold interest.


“Refunded Swing Line Loans”
has the meaning assigned to that term in subsection 2.1A(iii).


“Register” has
the meaning assigned to that term in subsection 2.1D.


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


“Reimbursement Date”
has the meaning assigned to that term in subsection 3.3B.


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


“Request for Issuance”
means a request substantially in the form of Exhibit III annexed
hereto.


“Requisite Class Lenders”
means, at any time of determination (i) for the Class of Lenders having
Revolving Loan Exposure, Lenders having or holding more than 50% of the
aggregate Revolving Loan Exposure of all Lenders, and (ii) for the Class
of Lenders having Term Loan Exposure, Lenders having or holding more than 50%
of the aggregate Term Loan Exposure of all Lenders.


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


“Restatement Date”
means the date on which all of the conditions set forth in subsection 4.1 are
satisfied.


“Restricted Junior Payment”
means (i) any dividend or other distribution, direct or indirect, on
account of any shares of any class of stock of Company or Holdings 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 of Company or Holdings
now or hereafter outstanding, and (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 of Company or Holdings now or hereafter
outstanding.


“Revolving Lender”
means a Lender that has a Revolving Loan Commitment and/or that has an
outstanding Revolving Loan.



 24
 






 



“Revolving Loan Commitment”
means the commitment of a Revolving Lender to make Revolving Loans to Company
pursuant to subsection 2.1A(ii) (including the Existing Revolving Loan
Commitments), and “Revolving Loan Commitments”
means such commitments of all Revolving Lenders in the aggregate.


“Revolving Loan Commitment
Amount” means, at any date, the aggregate amount of the Revolving
Loan Commitments of all Revolving Lenders.


“Revolving Loan
Commitment Termination Date” means February 18, 2011.


“Revolving Loan Exposure”
means, with respect to any Revolving Lender, as of any date of determination
(i) prior to the termination of the Revolving Loan Commitments, the amount
of that Lender’s Revolving Loan Commitment, and (ii) after the termination
of the Revolving Loan Commitments, the sum of (a) the aggregate
outstanding principal amount of the Revolving Loans of that Lender plus
(b) in the event that Lender is an Issuing Lender, the aggregate Letter of
Credit Usage in respect of all Letters of Credit issued by that Lender (in each
case net of any participations purchased by other Lenders in such Letters of
Credit or in any unreimbursed drawings thereunder) plus (c) the
aggregate amount of all participations purchased by that Lender in any
outstanding Letters of Credit or any unreimbursed drawings under any Letters of
Credit plus (d) in the case of Swing Line Lender, the aggregate
outstanding principal amount of all Swing Line Loans (net of any assignments
thereof deemed purchased by other Revolving Lenders) plus (e) the
aggregate amount of all assignments deemed purchased by that Lender in any
outstanding Swing Line Loans.


“Revolving Loans”
means the Loans made by Revolving Lenders to Company pursuant to subsection
2.1A(ii) (including any Loans under the Existing Revolving Loan Commitments
which are outstanding on the Restatement Date).


“Revolving Notes”
means (i) the promissory notes of Company issued pursuant to
subsection 2.1E and (ii) any promissory notes issued by Company
pursuant to 10.1B(i) in connection with assignments of the Revolving Loan
Commitments and Revolving Loans of any Revolving Lenders, in each case
substantially in the form of Exhibit V annexed hereto, as they may
be amended, supplemented or otherwise modified from time to time.


“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, certificated or
uncertificated, 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 Account” means an account to which a
financial asset is or may be credited in accordance with an agreement under
which the Person maintaining the account undertakes to treat the Person for
whom the account is maintained as entitled to exercise the rights that comprise
the financial asset.



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


“Security Agreement”
means the Security Agreement executed and delivered on the Original Closing
Date, substantially in the form of Exhibit XII annexed hereto, as such
Security Agreement may thereafter be amended, supplemented or otherwise
modified from time to time.


“Solvent” means, with respect to any Person, that as of the date of
determination both (i)(a) the then fair saleable value of the property of
such Person is (1) greater than the total amount of liabilities (including
contingent liabilities) of such Person and (2) 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 due considering all financing
alternatives and potential asset sales reasonably available to such Person;
(b) such Person’s capital is not unreasonably small in relation to its
business or any contemplated or undertaken transaction; and (c) such
Person 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; and (ii) 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.


“Sponsors”
means, collectively, (i) Berkshire Partners or its Affiliates and (ii) JH
Partners or its Affiliates.


“Standby Letter of Credit”
means any standby letter of credit or similar instrument issued for the purpose
of supporting (i) Indebtedness of Company or any other Subsidiary of
Holdings in respect of industrial revenue or development bonds or financings,
(ii) workers’ compensation liabilities of Company or any other Subsidiary
of Holdings, (iii) the obligations of third party insurers of Company or
any other Subsidiary of Holdings arising by virtue of the laws of any
jurisdiction requiring third party insurers, (iv) obligations with respect
to Capital Leases or Operating Leases of Company or any other Subsidiary of
Holdings, and (v) performance, payment, deposit or surety obligations of
Company or any other Subsidiary of Holdings, in any case if required by law or
governmental rule or regulation or in accordance with custom and practice in
the industry.


“Stated Maturity Date”
means February 18, 2012.


“Subsidiary”
means, with respect to any Person, any corporation, partnership, trust, 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 members of the Governing Body 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.



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“Subsidiary Guarantor”
means any Subsidiary of Company that executes and delivers a counterpart of the
Subsidiary Guaranty on the Original Closing Date or from time to time
thereafter pursuant to subsection 6.8.


“Subsidiary Guaranty”
means the Subsidiary Guaranty executed and delivered by existing Subsidiaries
of Company on the Original Closing Date and to be executed and delivered by
additional Subsidiaries of Company from time to time thereafter in accordance
with subsection 6.8, substantially in the form of Exhibit XI annexed
hereto, as such Subsidiary Guaranty may hereafter be amended, supplemented or
otherwise modified from time to time.


“Supplemental Collateral
Agent” has the meaning assigned to that term in subsection 9.1B.


“Swing Line Lender”
means Administrative Agent, or any Person serving as a successor Administrative Agent hereunder, in its
capacity as Swing Line Lender hereunder.


“Swing Line Loan Commitment”
means the commitment of Swing Line Lender to make Swing Line Loans to Company
pursuant to subsection 2.1A(iii).


“Swing Line Loans”
means the Loans made by Swing Line Lender to Company pursuant to subsection
2.1A(iii).


“Swing Line Note”
means (i) the promissory note of Company issued pursuant to subsection
2.1E and (ii) any promissory note issued by Company to any successor
Administrative Agent and Swing Line Lender pursuant to the last sentence of
subsection 9.5B, in each case substantially in the form of Exhibit VI
annexed hereto, as it may be amended, supplemented or otherwise modified from
time to time.


“Synthetic Lease Obligation” means the monetary
obligation of a Person under (i) a so-called synthetic, off-balance sheet or
tax retention lease, or (ii) an agreement for the use or possession of property
creating obligations that do not appear on the balance sheet of such Person but
which, upon the insolvency or bankruptcy of such Person, would be characterized
as the indebtedness of such Person (without regard to accounting treatment).


“Tax” or “Taxes” means any present or future tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature and whatever called, by
whomsoever, on whomsoever and wherever imposed, levied, collected, withheld or
assessed, including interest, penalties, additions to tax and any similar
liabilities with respect thereto; except that, in the case of a Lender, there
shall be excluded (i) taxes that are imposed on the overall net income or
net profits (including franchise taxes imposed in lieu thereof) (a) by the
United States, (b) by any other Government Authority under the laws of
which such Lender is organized or has its principal office or maintains its
applicable lending office, or (c) by any jurisdiction solely as a result
of a present or former connection between such Lender and such jurisdiction
(other than any such connection arising solely from such Lender having
executed, delivered or performed its obligations or received a payment under,
or enforced, any of the Loan Documents), and (ii) any branch profits taxes
imposed by the United States or any similar tax imposed by any other
jurisdiction in which such Lender is located.



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“Term Loan
Commitment” means the
commitment of a Lender to make a Term Loan to Company pursuant to subsection
2.1A(i), and “Term Loan Commitments”
means such commitments of all Lenders in the aggregate.


“Term Loan Exposure”
with respect to any Lender, means, as of any date of determination (i) prior to
the funding of the Term Loans, that Lender’s Term Loan Commitment, and (ii),
after the funding of the Term Loans, the outstanding principal amount of the
Term Loan of that Lender.


“Term Loans”
means the term loans funded pursuant to the Original Credit Agreement and
outstanding on the Restatement Date and the new term loans funded on the
Restatement Date pursuant to the Sixth Amendment to the Original Credit
Agreement, dated as of the date hereof.


“Term Notes”
means any promissory notes of Company issued pursuant to subsection 2.1E to
evidence the Term Loans of any Lenders and (ii) any promissory notes issued by
Company pursuant to subsection 10.1B(i) in connection with assignments of the
Term Loan Commitments or Term Loans of any Lenders, in each case, substantially
in the form of Exhibit IV annexed hereto, as they may be amended,
supplemented or otherwise modified from time to time.


“Title Company”
means one or more title insurance companies reasonably satisfactory to
Administrative Agent.”


“Total Utilization of
Revolving Loan Commitments” means, as at any date of determination,
the sum of (i) the aggregate principal amount of all outstanding Revolving
Loans plus (ii) the aggregate principal amount of all outstanding Swing
Line Loans plus (iii) the Letter of Credit Usage.


“Transaction Costs”
means all fees, costs, expenses, premiums, termination payments and prepayment
penalties incurred by any Loan Party on, before or shortly after the
Restatement Date in connection with the transactions contemplated by the Loan
Documents, including write-off of deferred financing costs.


“UCC” means the
Uniform Commercial Code as in effect in any applicable jurisdiction.


“Unasserted Obligations”
means, at any time, Obligations for taxes, costs, indemnifications,
reimbursements, damages and other liabilities (except for (i) the principal of
and interest on, and fees relating to, any Indebtedness and (ii) contingent
reimbursement obligations in respect of amounts that may be drawn under Letters
of Credit) in respect of which no claim or demand for payment has been made
(or, in the case of obligations for indemnification, no notice for
indemnification has been issued by the indemnitee) at such time.



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1.2                               Accounting Terms; Utilization of GAAP for
Purposes of Calculations Under Agreement.


Except as otherwise expressly provided in this
Agreement, 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 Company to Lenders pursuant to clauses (ii), (iii)
and (xii) of subsection 6.1 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 subsection 6.1(v)).  Calculations in connection with the
definitions, covenants and other provisions of this Agreement shall utilize
GAAP as in effect on the date of determination, applied in a manner consistent
with that used in preparing the financial statements referred to in subsection
5.3. If at any time any change in GAAP would affect the computation of any
financial ratio or requirement set forth in any Loan Document, and Company,
Administrative Agent or Requisite Lenders shall so request, Administrative
Agent, Lenders and Company shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of Requisite Lenders), provided that,
until so amended, such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and Company shall provide to
Administrative Agent and Lenders reconciliation statements provided for in
subsection 6.1(v).


1.3                               Other Definitional Provisions and Rules of
Construction.


A.                                    Any
of the terms defined herein may, unless the context otherwise requires, be used
in the singular or the plural, depending on the reference.


B.                                    References
to “Sections” and “subsections” shall be to Sections and subsections,
respectively, of this Agreement unless otherwise specifically provided.  Section and subsection headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose or be given any
substantive effect.


C.                                    An
Event of Default shall “continue” or be “continuing” until such Event of
Default has been waived in accordance with subsection 10.6 hereof or otherwise
cured.


D.                                    The
use in any of the Loan Documents 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
nonlimiting 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.


E.                                      Any
reference herein or in any other Loan Document to any agreement, document or
instrument, including this Agreement, the Notes, the other Loan Documents and
any schedules or exhibits thereto, unless expressly noted otherwise, shall be a
reference to each such agreement, document or instrument as it may be amended,
restated, supplemented or



 29
 






 



otherwise modified from
time to time in accordance with its terms and to the extent permitted (or not
restricted) hereunder or under the applicable Loan Document.


1.4                               Amendment and Restatement.


On the Restatement Date, the Original Credit Agreement
shall be amended and restated in its entirety by this Agreement.  The parties hereby acknowledge and agree that
this Agreement and the other Loan Documents do not constitute a novation,
payment and reborrowing or termination of any of the indebtedness or
obligations of Company, Holdings or their respective Subsidiaries under the
Original Credit Agreement or other loan documents executed in connection
therewith (collectively, the “Original Loan Documents”)
and that all such indebtedness and obligations are in all respects continued
and outstanding as indebtedness and obligations under this Agreement and the
other Loan Documents with the terms being modified from and after the Restatement
Date as provided in this Agreement and the other Loan Documents.


Section
2.                                          AMOUNTS
AND TERMS OF COMMITMENTS AND LOANS


2.1                               Commitments; Making of Loans; the Register;
Optional Notes.


A.                                    Commitments.  Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Company
herein set forth, each Lender hereby severally agrees to make the Loans
described in subsections 2.1A(i) and 2.1A(ii) and Swing Line Lender hereby
agrees to make the Swing Line Loans as described in subsection 2.1A(iii).


(i)                                     Term
Loans.  The amount of each Lender’s
Term Loan Exposure shall be set forth in the Register and the aggregate
principal amount of the Term Loans as of the Restatement Date is $343,668,750; provided
that the Term Loan Exposure of each Lender shall be adjusted to give effect to
any assignments of such Term Loans pursuant to subsection 10.1B.  Once repaid or prepaid, Term Loans may not be
reborrowed.


(ii)                                  Revolving
Loans.  Each Lender that has a
Revolving Loan Commitment severally agrees, subject to the limitations set
forth below with respect to the maximum amount of Revolving Loans permitted to
be outstanding from time to time, to lend to Company from time to time during
the period from the Original Closing Date to but excluding the Revolving Loan
Commitment Termination Date an aggregate amount not exceeding its Pro Rata
Share of the aggregate amount of the Revolving Loan Commitments to be used for
the purposes identified in subsection 2.5B. 
The original amount of each Revolving Lender’s Revolving Loan Commitment
is set forth opposite its name on Schedule 2.1 annexed hereto and
the aggregate Revolving Loan Commitment Amount as of the Restatement Date is
$25,000,000; provided that the amount of the Revolving Loan Commitment
of each Revolving Lender shall be adjusted to give effect to any assignment of
such Revolving Loan Commitment pursuant to subsection 10.1B and shall be
reduced from time to time by the amount of any reductions thereto made pursuant
to subsection 2.4.  Each Revolving Lender’s
Revolving Loan Commitment shall expire on the Revolving Loan Commitment
Termination Date and all Revolving Loans



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and all other
amounts owed hereunder with respect to the Revolving Loans and the Revolving
Loan Commitments shall be paid in full no later than that date.  Amounts borrowed under this subsection
2.1A(ii) may be repaid and reborrowed to but excluding the Revolving Loan
Commitment Termination Date.


Anything contained in this Agreement to the contrary
notwithstanding, the Revolving Loans and the Revolving Loan Commitments shall
be subject to the following limitations in the amounts and during the periods
indicated:


(a)                                  in
no event shall the Total Utilization of Revolving Loan Commitments at any time
exceed the Revolving Loan Commitment Amount then in effect; and


(b)                                 in
no event shall the Total Utilization of Revolving Loan Commitments at any time
exceed the Borrowing Base then in effect.


(iii)                               Swing
Line Loans.


(a)                                  General
Provisions.  Swing Line Lender hereby
agrees, subject to the limitations set forth in the last paragraph of
subsection 2.1A(ii) and set forth below with respect to the maximum amount of
Swing Line Loans permitted to be outstanding from time to time, to make a
portion of the Revolving Loan Commitments available to Company from time to
time during the period from the Original Closing Date to but excluding the
Revolving Loan Commitment Termination Date by making Swing Line Loans to
Company in an aggregate amount not exceeding the amount of the Swing Line Loan Commitment
to be used for the purposes identified in subsection 2.5B, notwithstanding the
fact that such Swing Line Loans, when aggregated with Swing Line Lender’s
outstanding Revolving Loans and Swing Line Lender’s Pro Rata Share of the
Letter of Credit Usage then in effect, may exceed Swing Line Lender’s Revolving
Loan Commitment.  The aggregate amount of
the Swing Line Loan Commitment is $5,000,000; provided that any
reduction of the Revolving Loan Commitment Amount made pursuant to subsection
2.4 that reduces the Revolving Loan Commitment Amount to an amount less than
the then current amount of the Swing Line Loan Commitment shall result in an
automatic corresponding reduction of the amount of the Swing Line Loan
Commitment to the amount of the Revolving Loan Commitment Amount, as so
reduced, without any further action on the part of Company, Administrative
Agent or Swing Line Lender.  The Swing
Line Loan Commitment shall expire on the Revolving Loan Commitment Termination
Date and all Swing Line Loans and all other amounts owed hereunder with respect
to the Swing Line Loans shall be paid in full no later than that date.  Amounts borrowed under this subsection
2.1A(iii) may be repaid and reborrowed to but excluding the Revolving Loan
Commitment Termination Date.



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Anything contained in
this Agreement to the contrary notwithstanding, the Swing Line Loans and the
Swing Line Loan Commitment shall be subject to the following limitations in the
amounts and during the periods indicated:


(1)                                  in
no event shall the Total Utilization of Revolving Loan Commitments at any time
exceed the Revolving Loan Commitments then in effect; and


(2)                                  in no event shall the Total Utilization of
Revolving Loan Commitments at any time exceed the Borrowing Base then in
effect.


(b)                                 Swing
Line Loan Prepayment with Proceeds of Revolving Loans.  With respect to any Swing Line Loans that
have not been voluntarily prepaid by Company pursuant to subsection 2.4B(i),
Swing Line Lender may, at any time in its sole and absolute discretion, deliver
to Administrative Agent (with a copy to Company), not later than 10:00 A.M.
(New York City time) on the first Business Day in advance of the proposed
Funding Date, a notice requesting Revolving Lenders to make Revolving Loans
that are Base Rate Loans on such Funding Date in an amount equal to the amount
of such Swing Line Loans (the “Refunded Swing Line Loans”)
outstanding on the date such notice is given. 
Company hereby authorizes the giving of any such notice and the making
of any such Revolving Loans.  Anything
contained in this Agreement to the contrary notwithstanding, (1) the
proceeds of such Revolving Loans made by Revolving Lenders other than Swing
Line Lender shall be immediately delivered by Administrative Agent to Swing
Line Lender (and not to Company) and applied to repay a corresponding portion
of the Refunded Swing Line Loans and (2) on the day such Revolving Loans
are made, Swing Line Lender’s Pro Rata Share of the Refunded Swing Line Loans
shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing
Line Lender, and such portion of the Swing Line Loans deemed to be so paid
shall no longer be outstanding as Swing Line Loans and shall no longer be due
under the Swing Line Note, if any, of Swing Line Lender but shall instead constitute
part of Swing Line Lender’s outstanding Revolving Loans and shall be due under
the Revolving Note, if any, of Swing Line Lender.  Company hereby authorizes Administrative
Agent and Swing Line Lender to charge Company’s accounts with Administrative
Agent and Swing Line Lender (up to the amount available in each such account)
in order to immediately pay Swing Line Lender the amount of the Refunded Swing
Line Loans to the extent the proceeds of such Revolving Loans made by Revolving
Lenders, including the Revolving Loan deemed to be made by Swing Line Lender,
are not sufficient to repay in full the Refunded Swing Line Loans.  If any portion of any such amount paid (or
deemed to be paid) to Swing Line Lender should be recovered by or on behalf of
Company from Swing Line Lender in any Insolvency or Liquidation Proceeding, in
any assignment for the benefit of creditors or otherwise, the loss of the
amount so recovered shall be ratably shared among all Lenders in the manner
contemplated by subsection 10.5.



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(c)                                  Swing
Line Loan Assignments.  On the
Funding Date of each Swing Line Loan, each Revolving Lender shall be deemed to,
and hereby agrees to purchase an assignment of such Swing Line Loan in an
amount equal to its Pro Rata Share.  If
for any reason (1) Revolving Loans are not made upon the request of Swing Line
Lender as provided in the immediately preceding paragraph in an amount
sufficient to repay any amounts owed to Swing Line Lender in respect of such
Swing Line Loan or (2) the Revolving Loan Commitments are terminated at a time
when such Swing Line Loan is outstanding, upon notice from Swing Line Lender as
provided below, each Revolving Lender shall fund the purchase of such
assignment in an amount equal to its Pro Rata Share (calculated, in the case of
the foregoing clause (2), immediately prior to such termination of the
Revolving Loan Commitments) of the unpaid amount of such Swing Line Loan
together with accrued interest thereon. 
Upon one Business Day’s notice from Swing Line Lender, each Revolving
Lender shall deliver to Swing Line Lender such amount in same day funds at the
Funding and Payment Office.  In order to
further evidence such assignment (and without prejudice to the effectiveness of
the assignment provisions set forth above), each Revolving Lender agrees to
enter into an Assignment Agreement at the request of Swing Line Lender in form
and substance reasonably satisfactory to Swing Line Lender.  In the event any Revolving Lender fails to
make available to Swing Line Lender any amount as provided in this paragraph,
Swing Line Lender shall be entitled to recover such amount on demand from such
Revolving Lender together with interest thereon at the rate customarily used by
Swing Line Lender for the correction of errors among banks for three Business
Days and thereafter at the Base Rate.  In
the event Swing Line Lender receives a payment of any amount with respect to
which other Revolving Lenders have funded the purchase of assignments as
provided in this paragraph, Swing Line Lender shall promptly distribute to each
such other Revolving Lender its Pro Rata Share of such payment.


(d)                                 Revolving
Lenders’ Obligations.  Anything
contained herein to the contrary notwithstanding, each Revolving Lender’s
obligation to make Revolving Loans for the purpose of repaying any Refunded
Swing Line Loans pursuant to subsection 2.1A(iii)(b) and each Revolving Lender’s
obligation to purchase an assignment of any unpaid Swing Line Loans pursuant to
the immediately preceding paragraph shall be absolute and unconditional and
shall not be affected by any circumstance, including (1) any set-off,
counterclaim, recoupment, defense or other right which such Revolving Lender
may have against Swing Line Lender, Company or any other Person for any reason
whatsoever; (2) the occurrence or continuation of an Event of Default or a
Potential Event of Default; (3) any adverse change in the business,
operations, properties, assets, condition (financial or otherwise) or prospects
of Company or any of its Subsidiaries; (4) any breach of this Agreement or
any other Loan Document by any party thereto; or (5) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing; provided that such obligations of each Revolving Lender
are subject to the condition that (x) Swing Line Lender believed in good
faith that all conditions under Section 4 to the making of the applicable
Refunded Swing Line Loans or other unpaid Swing Line Loans, as the case may be,
were satisfied at the



 33
 






 



time such Refunded
Swing Line Loans or unpaid Swing Line Loans were made or (y) the
satisfaction of any such condition not satisfied had been waived in accordance
with subsection 10.6 prior to or at the time such Refunded Swing Line Loans or
other unpaid Swing Line Loans were made.


B.                                    Borrowing Mechanics.  Loans made on any Funding Date (other than
Swing Line Loans, Revolving Loans made pursuant to a request by Swing Line
Lender pursuant to subsection 2.1A(iii) or Revolving Loans made pursuant to
subsection 3.3B) shall be in an aggregate minimum amount of $100,000 and
multiples of $100,000 in excess of that amount; provided that Loans,
made as LIBOR Loans with a particular Interest Period shall be in an aggregate
minimum amount of $1,000,000 and multiples of $100,000 in excess of that amount.  Swing Line Loans made on any Funding Date
shall be in an aggregate minimum amount of $100,000 and multiples of $100,000
in excess of that amount.  Whenever
Company desires that Lenders make Term Loans or Revolving Loans it shall
deliver to Administrative Agent a duly executed Notice of Borrowing not later
than 12:00 Noon (New York City time) at least three Business Days in advance of
the proposed Funding Date (in the case of a LIBOR Loan) or at least one
Business Day in advance of the proposed Funding Date (in the case of a Base
Rate Loan).  Whenever Company desires
that Swing Line Lender make a Swing Line Loan, it shall deliver to
Administrative Agent a duly executed Notice of Borrowing not later than 12:00
Noon (New York City time) on the proposed Funding Date.  Term Loans and Revolving Loans may be
continued as or converted into Base Rate Loans and LIBOR Loans in the manner
provided in subsection 2.2D.  In lieu of
delivering a Notice of Borrowing, Company may give Administrative Agent
telephonic notice by the required time of any proposed borrowing under this
subsection 2.1B; provided that such notice shall be promptly confirmed
in writing by delivery of a duly executed Notice of Borrowing to Administrative
Agent on or before the applicable Funding Date.


Neither Administrative Agent nor any Lender shall
incur any liability to Company in acting upon any telephonic notice referred to
above that Administrative Agent believes in good faith to have been given by an
Officer or other person authorized to borrow on behalf of Company or for
otherwise acting in good faith under this subsection 2.1B or under subsection
2.2D, and upon funding of Loans by Lenders, and upon conversion or continuation
of the applicable basis for determining the interest rate with respect to any
Loans pursuant to subsection 2.2D, in each case in accordance with this
Agreement, pursuant to any such telephonic notice Company shall have effected
Loans or a conversion or continuation, as the case may be, hereunder.


Company shall notify Administrative Agent prior to the
funding of any Loans in the event that any of the matters to which Company is
required to certify in the applicable Notice of Borrowing is no longer true and
correct as of the applicable Funding Date, and the acceptance by Company of the
proceeds of any Loans shall constitute a re-certification by Company, as of the
applicable Funding Date, as to the matters to which Company is required to
certify in the applicable Notice of Borrowing.


Except as otherwise provided in subsections 2.6B, 2.6C
and 2.6G, a Notice of Borrowing for or a Notice of Conversion/Continuation for
conversion to, or continuation of, a LIBOR Loan (or telephonic notice in lieu
thereof) shall be irrevocable on and after the related



 34
 






 



Interest Rate Determination Date, and Company shall be
bound to make a borrowing or to effect a conversion or continuation in
accordance therewith.


C.                                    Disbursement of Funds.  All Term Loans and Revolving Loans shall be
made by Lenders simultaneously and proportionately to their respective Pro Rata
Shares, it being understood that neither Administrative Agent nor any Lender
shall be responsible for any default by any other Lender in that other Lender’s
obligation to make a Loan requested hereunder nor shall the Commitment of any
Lender to make the particular type of Loan requested be increased or decreased
as a result of a default by any other Lender in that other Lender’s obligation
to make a Loan requested hereunder. 
Promptly after receipt by Administrative Agent of a Notice of Borrowing
pursuant to subsection 2.1B (or telephonic notice in lieu thereof),
Administrative Agent shall notify each Lender for that type of Loan or Swing
Line Lender, as the case may be, of the proposed borrowing.  Each such Lender (other than Swing Line Lender)
shall make the amount of its Loan available to Administrative Agent not later
than 1:00 P.M. (New York City time) on the applicable Funding Date, and Swing
Line Lender shall make the amount of its Swing Line Loan available to
Administrative Agent not later than 2:00 P.M. (New York City time) on the
applicable Funding Date, in each case in same day funds in Dollars, at the
Funding and Payment Office.  Except as
provided in subsection 2.1A(iii) and subsection 3.3B with respect to Revolving
Loans used to repay Refunded Swing Line Loans or to reimburse any Issuing
Lender for the amount of a drawing under a Letter of Credit issued by it, upon
satisfaction or waiver of the conditions precedent specified in subsections 4.1
(in the case of Loans made on the Restatement Date) and 4.2 (in the case of all
Loans), Administrative Agent shall make the proceeds of such Loans available to
Company on the applicable Funding 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 the Funding and
Payment Office.


Unless Administrative Agent shall have been notified
by any Lender prior to a Funding Date that such Lender does not intend to make
available to Administrative Agent the amount of such Lender’s Loan requested on
such Funding Date, Administrative Agent may assume that such Lender has made
such amount available to Administrative Agent on such Funding Date and
Administrative Agent may, in its sole discretion, but shall not be obligated
to, make available to Company a corresponding amount on such Funding 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 day from such Funding 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 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 Company and Company shall
immediately pay such corresponding amount to Administrative Agent together with
interest thereon, for each day from such Funding Date until the date such
amount is paid to Administrative Agent, at the rate payable under this
Agreement for Base Rate Loans.  Nothing
in this subsection 2.1C shall be deemed to relieve any Lender from its
obligation to fulfill its Commitments hereunder or to prejudice any rights that
Company may have against any Lender as a result of any default by such Lender
hereunder.



 35
 






 



D.                                    The Register.  Administrative Agent, acting for these
purposes solely as an agent of Company (it being acknowledged that
Administrative Agent, in such capacity, and its officers, directors, employees,
agent and affiliates shall constitute Indemnitees under subsection 10.3), shall
maintain at its address referred to in subsection 10.8 a register for the
recordation of, and shall record, the names and addresses of Lenders and the
respective amounts of the Term Loan Commitment, Revolving Loan Commitment, Swing
Line Loan Commitment, Term Loan, Revolving Loans and Swing Line Loans of each
Lender from time to time (the “Register”).  Administrative Agent shall make the Register
available for inspection by the Company and the Lenders upon reasonable prior
notice at reasonable times, provided that a Lender shall only be
entitled to inspect its own entry in the Register and not that of any other
Lender.  Company, 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; all amounts owed with respect to any
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.  Each Lender shall record on its internal
records the amount of its Loans and Commitments and each payment in respect
hereof, and any such recordation shall be conclusive and binding on Company,
absent manifest error, subject to the entries in the Register, which shall,
absent manifest error, govern in the event of any inconsistency with any Lender’s
records.  Failure to make any recordation
in the Register or in any Lender’s records, or any error in such recordation,
shall not affect any Loans or Commitments or any Obligations in respect of any
Loans.


E.                                      Optional
Notes.  If so requested by any Lender
by written notice to Company (with a copy to Administrative Agent) at any time,
Company 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 subsection 10.1) promptly after Company’s receipt of such notice, a
promissory note or promissory notes to evidence such Lender’s Term Loan,
Revolving Loans or Swing Line Loans, substantially in the form of Exhibit IV,
Exhibit V or Exhibit VI, annexed hereto, respectively, with
appropriate insertions.


2.2                               Interest on the Loans.


A.                                    Rate of Interest.  Subject to the provisions of subsections 2.6
and 2.7, each Term Loan and each Revolving Loan shall bear interest on the
unpaid principal amount thereof from the date made through maturity (whether by
acceleration or otherwise) at a rate determined by reference to the Base Rate
or LIBOR.  Subject to the provisions of
subsection 2.7, each Swing Line Loan shall bear interest on the unpaid
principal amount thereof from the date made through maturity (whether by
acceleration or otherwise) at a rate determined by reference to the Base Rate.  The applicable basis for determining the rate
of interest with respect to any Term Loan or any Revolving Loan shall be
selected by Company initially at the time a Notice of Borrowing is given with
respect to such Loan pursuant to subsection 2.1B (subject to the last sentence
of subsection 2.1B), and the basis for determining the interest rate with
respect to any Term Loan or any Revolving Loan may be changed from time to time
pursuant to subsection 2.2D (subject to the last sentence of subsection 2.1B).  If on any day a Term Loan or Revolving Loan
is outstanding with respect to which notice has not been delivered to
Administrative Agent



 36
 






 



in accordance with the
terms of this Agreement specifying the applicable basis for determining the
rate of interest, then for that day that Loan shall bear interest determined by
reference to the Base Rate.


(i)                                     Subject
to the provisions of subsections 2.2E, 2.2G and 2.7, the Term Loans and the
Revolving Loans shall bear interest through maturity as follows:


(a)                                  if
a Base Rate Loan, then at the sum of the Base Rate plus the Base Rate
Margin set forth in the table below opposite the Consolidated Leverage Ratio
for the four Fiscal Quarter period for which the applicable Pricing Certificate
has been delivered pursuant to subsection 6.1(iv); or


(b)                                 if
a LIBOR Loan, then at the sum of Adjusted LIBOR plus the LIBOR Margin
set forth in the table below opposite the Consolidated  Leverage Ratio for the four Fiscal Quarter
period for which the applicable Pricing Certificate has been delivered pursuant
to subsection 6.1(iv):


	
  Consolidated Leverage Ratio

  	
   

  	
  LIBOR Margin

  	
   

  	
  Base Rate Margin

  	
   

  
	
  Greater than or
  equal to 3.50:1.00

  	
   

  	
  2.75

  	
  %

  	
  1.75

  	
  %

  
	
  Less than
  3.50:1.00 but greater or equal to 2.50:1.00

  	
   

  	
  2.50

  	
  %

  	
  1.50

  	
  %

  
	
  Less than 2.50:1.00

  	
   

  	
  2.25

  	
  %

  	
  1.25

  	
  %

  



 


; provided that,
until the delivery of the Pricing Certificate for the fourth Fiscal Quarter of
2006, the applicable margin for Term Loans and Revolving Loans that are LIBOR
Loans shall be 2.50% per annum and for Term Loans and Revolving Loans that are
Base Rate Loans shall be 1.50% per annum and provided, further,
that until such time as the Company has once delivered evidence to the
Administrative Agent that its (or Holdings’) corporate credit is rated no less
than B1 by Moody’s, the Company will not be eligible for the lowest interest
rate percentage specified in the above table. 
Upon delivery of the Pricing Certificate by Company to Administrative
Agent pursuant to subsection 6.1(iv), the Base Rate Margin and the LIBOR Margin
shall automatically be adjusted in accordance with such Pricing Certificate,
such adjustment to become effective as of the third Business Day after the 45th day following the end of the most recently
completed Fiscal Quarter; provided that, if at the time a Pricing
Certificate is not delivered by the time required pursuant to subsection
6.1(iv), from the time such Pricing Certificate was required to be delivered
until delivery of such Pricing Certificate, the applicable margins shall be the
maximum percentage amount for the relevant Loan set forth above.


B.                                    Interest Periods.  In connection with each Base Rate Loan,
interest shall be payable quarterly on March 31, June 30, September 30 and
December 31 of each year, and in connection with each LIBOR Loan, Company may,
pursuant to the applicable Notice of



 37
 






 



Borrowing or Notice of
Conversion/Continuation, as the case may be, select an interest period (each an
“Interest Period”) to be
applicable to such Loan, which Interest Period shall be, at Company’s option,
either a one, two, three or six month period; provided that:


(i)                                     the
initial Interest Period for any LIBOR Loan shall commence on the Funding Date
in respect of such Loan, in the case of a Loan initially made as a LIBOR Loan,
or on the date specified in the applicable Notice of Conversion/Continuation,
in the case of a Loan converted to a LIBOR Loan;


(ii)                                  in
the case of immediately successive Interest Periods applicable to a LIBOR Loan
continued as such pursuant to a Notice of Conversion/Continuation, each
successive Interest Period shall commence on the day on which the next
preceding Interest Period expires;


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


(iv)                              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 (v) of this
subsection 2.2B, end on the last Business Day of a calendar month;


(v)                                 no
Interest Period with respect to any portion of the Term Loans shall extend
beyond the Stated Maturity Date, and no Interest Period with respect to any
portion of the Revolving Loans or Swing Line Loans shall extend beyond the
Revolving Loan Commitment Termination Date;


(vi)                              there
shall be no more than five Interest Periods outstanding at any time; and


(vii)                           in the
event Company fails to specify an Interest Period for any LIBOR Loan in the
applicable Notice of Borrowing or Notice of Conversion/Continuation, Company
shall be deemed to have selected an Interest Period of one month.


C.                                    Interest Payments.  Subject to the provisions of subsection 2.2E,
interest on each Loan shall be payable in arrears on and to each Interest
Payment Date applicable to that Loan, upon any prepayment of that Loan (to the
extent accrued on the amount being prepaid) and at maturity (including final
maturity); provided that in the event any Swing Line Loans
or any Revolving Loans that are Base Rate Loans are prepaid pursuant to
subsection 2.4B(i), interest accrued on such Loans through the date of such
prepayment shall be payable on the next succeeding Interest Payment Date
applicable to Base Rate Loans (or, if earlier, at final maturity).


D.                                    Conversion or Continuation.  Subject to the provisions of subsection 2.6,
Company shall have the option (i) to convert at any time all or any part
of its outstanding Term Loans or Revolving Loans equal to $1,000,000 and
multiples of $100,000 in excess of that



 38
 






 



amount from Loans bearing
interest at a rate determined by reference to one basis to Loans bearing
interest at a rate determined by reference to an alternative basis or
(ii) upon the expiration of any Interest Period applicable to a LIBOR
Loan, to continue all or any portion of such Loan equal to $1,000,000 and
multiples of $100,000 in excess of that amount as a LIBOR Loan; provided,
however, that a LIBOR Loan may only be converted into a Base Rate Loan
on the expiration date of an Interest Period applicable thereto unless Company
pays on such conversion date all amounts owing to Lenders under subsection
2.6D.


Company shall deliver a duly executed Notice of
Conversion/Continuation to Administrative Agent not later than 12:00 Noon (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
Business Days in advance of the proposed conversion/continuation date (in the
case of a conversion to, or a continuation of, a LIBOR Loan).  In lieu of delivering a Notice of
Conversion/Continuation, Company may give Administrative Agent telephonic
notice by the required time of any proposed conversion/continuation under this
subsection 2.2D; provided that such notice shall be promptly confirmed
in writing by delivery of a duly executed Notice of Conversion/Continuation to
Administrative Agent on or before the proposed conversion/continuation
date.  Upon receipt of written or
telephonic notice of any proposed conversion/continuation under this subsection
2.2D, Administrative Agent shall notify each Lender of any Loan subject to the
Notice of Conversion/Continuation.


E.                                      Default Rate.  Upon the occurrence and during the
continuation of any Event of Default under any of subsection 8.1, 8.6 or 8.7,
the outstanding principal amount of all Loans and, to the extent permitted by
applicable law, any interest payments thereon 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 Insolvency or Liquidation
Proceeding) payable upon demand by Administrative Agent at a rate that is 2%
per annum in excess of the interest rate otherwise payable under this Agreement
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 under this Agreement for Base Rate Loans); provided
that, in the case of LIBOR Loans, upon the expiration of the Interest Period in
effect at the time any such increase in interest rate is effective such LIBOR
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 under this Agreement for Base Rate Loans.  Payment or acceptance of the increased rates
of interest provided for in this subsection 2.2E 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 or any Lender.


F.                                      Computation
of Interest.  Interest on the Loans shall be computed 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 LIBOR Loan, the date of conversion
of such LIBOR 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 LIBOR Loan, the date of conversion of such Base Rate Loan
to such



 39
 






 



LIBOR Loan, as the case
may be, shall be excluded; provided that if a Loan is repaid on the same
day on which it is made, one day’s interest shall be paid on that Loan.


G.                                    Maximum Rate.  Notwithstanding the foregoing provisions of
this subsection 2.2, in no event shall the rate of interest payable by Company
with respect to any Loan exceed the maximum rate of interest permitted to be
charged under applicable law.


2.3                               Fees.


A.                                    Commitment Fees.  Company agrees to pay to Administrative
Agent, for distribution to each Revolving Lender in proportion to that
Revolving Lender’s Pro Rata Share, commitment fees for the period from and
including the Original Closing Date to and excluding the Revolving Commitment
Termination Date in an amount equal to the average of the daily excess of the
Revolving Loan Commitment Amount over the Total Utilization of Revolving Loan
Commitments (excluding Swing Line Loans) multiplied by 0.50% per annum,
such commitment fees to be calculated on the basis of a 360-day year and the
actual number of days elapsed and to be payable quarterly in arrears on
March 31, June 30, September 30, and December 31 of each year, commencing on the first
such date to occur after the Original Closing Date, and on the Revolving Loan
Commitment Termination Date.


B.                                    Other Fees.  Company agrees to pay to Administrative Agent
such fees in the amounts and at the times separately agreed upon between
Company and Administrative Agent.


2.4                               Repayments,
Prepayments and Reductions in Revolving Loan Commitments; General Provisions
Regarding Payments; Application of Proceeds of Collateral and Payments Under
Guaranties.


A.                                    Scheduled Payments of Term Loans.  Company shall make principal
payments on the Term Loans in installments on the dates and in the amounts set
forth below:




	
  Date

  	
   

  	
  Scheduled Repayment

  	
   

  
	
  December 31, 2006

  	
   

  	
  $

  	
  4,406,010

  	
   

  
	
  March 31, 2007

  	
   

  	
  $

  	
  4,406,010

  	
   

  
	
  June 30, 2007

  	
   

  	
  $

  	
  4,406,010

  	
   

  
	
  September 30, 2007

  	
   

  	
  $

  	
  4,406,010

  	
   

  
	
  December 31, 2007

  	
   

  	
  $

  	
  4,406,010

  	
   

  
	
  March 31, 2008

  	
   

  	
  $

  	
  4,406,010

  	
   

  
	
  June 30, 2008

  	
   

  	
  $

  	
  4,406,010

  	
   

  
	
  September 30, 2008

  	
   

  	
  $

  	
  4,406,010

  	
   

  
	
  December 31, 2008

  	
   

  	
  $

  	
  4,406,010

  	
   

  
	
  March 31, 2009

  	
   

  	
  $

  	
  4,406,010

  	
   

  
	
  June 30, 2009

  	
   

  	
  $

  	
  4,406,010

  	
   

  
	
  September 30, 2009

  	
   

  	
  $

  	
  4,406,010

  	
   

  
	
  December 31, 2009

  	
   

  	
  $

  	
  4,406,010

  	
   

  
	
  March 31, 2010

  	
   

  	
  $

  	
  4,406,010

  	
   

  
	
  June 30, 2010

  	
   

  	
  $

  	
  4,406,010

  	
   

  
	
  September 30, 2010

  	
   

  	
  $

  	
  4,406,010

  	
   

  
	
  December 31, 2010

  	
   

  	
  $

  	
  4,406,010

  	
   

  
	
  March 31, 2011

  	
   

  	
  $

  	
  4,406,010

  	
   

  
	
  June 30, 2011

  	
   

  	
  $

  	
  66,090,143

  	
   

  
	
  September 30, 2011

  	
   

  	
  $

  	
  66,090,143

  	
   

  
	
  December 31, 2011

  	
   

  	
  $

  	
  66,090,143

  	
   

  
	
  Stated Maturity
  Date

  	
   

  	
  $

  	
  66,090,141

  	
   

  






 



 40
 






 



; provided that the scheduled installments of
principal of the Term Loans set forth above shall be reduced in connection with
any voluntary or mandatory prepayments of the Term Loans in accordance with
subsection 2.4B(iv); and provided, further that the Term Loans
and all other amounts owed hereunder with respect to the Term Loans shall be
paid in full no later than the Stated Maturity Date, and the final installment
payable by Company in respect of the Term Loans on such date shall be in an
amount, if such amount is different from that specified above, sufficient to
repay all amounts owing by Company under this Agreement with respect to the
Term Loans.


B.                                    Prepayments and Unscheduled Reductions in
Revolving Loan Commitment Amount.


(i)                                     Voluntary
Prepayments.  Company may, upon
written or telephonic notice to Administrative Agent on or prior to 1:00 P.M.
(New York City time) on the date of prepayment, which notice, if telephonic,
shall be promptly confirmed in writing, at any time and from time to time
prepay any Swing Line Loan on any Business Day in whole or in part in an
aggregate minimum amount of $100,000 and multiples of $100,000 in excess of
that amount.  Company may, upon not less
than one Business Day’s prior written or telephonic notice, in the case of Base
Rate Loans, and three Business Days’ prior written or telephonic notice, in the
case of LIBOR Loans, in each case given to Administrative Agent by 1:00 P.M.
(New York City time) on the date required and, if given by telephone, promptly
confirmed in writing to Administrative Agent, who will promptly notify each
Lender whose Loans are to be prepaid of such prepayment), at any time and from
time to time prepay any Term Loans or Revolving Loans on any Business Day in
whole or in part in an aggregate minimum amount of $100,000 and multiples of
$100,000 in excess of that amount; provided, however, that a
LIBOR Loan may only be prepaid on the expiration of the Interest Period
applicable thereto unless Company



 41
 






 



complies with
subsection 2.6D with respect to any breakage costs resulting from such
prepayment being made on a date prior to the expiration of the applicable
Interest Period.  Notice of prepayment
having been given as aforesaid, 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 subsection 2.4B(iv).


(ii)                                  Voluntary
Reductions of Revolving Loan Commitments. 
Company may, upon not less than three Business Days’ prior written or
telephonic notice confirmed in writing to Administrative Agent, or upon such
lesser number of days’ prior written or telephonic notice, as determined by
Administrative Agent in its sole discretion, at any time and from time to time
terminate in whole or permanently reduce in part, without premium or penalty,
the Revolving Loan Commitment Amount in an amount up to the amount by which the
Revolving Loan Commitment Amount exceeds the Total Utilization of Revolving
Loan Commitments at the time of such proposed termination or reduction; provided
that any such partial reduction of the Revolving Loan Commitment Amount shall
be in an aggregate minimum amount of $1,000,000 and multiples of $100,000 in
excess of that amount.  Company’s notice
to Administrative Agent (who will promptly notify each Revolving Lender of such
notice) shall designate the date (which shall be a Business Day) of such
termination or reduction and the amount of any partial reduction, and such
termination or reduction of the Revolving Loan Commitment Amount shall be
effective on the date specified in Company’s notice and shall reduce the amount
of the Revolving Loan Commitment of each Revolving Lender proportionately to
its Pro Rata Share.  Any such voluntary
reduction of the Revolving Loan Commitment Amount shall be applied as specified
in subsection 2.4B(iv).


(iii)                               Mandatory
Prepayments and Mandatory Reductions of Revolving Loan Commitments.  The Loans shall be prepaid and/or the
Revolving Loan Commitment Amount shall be permanently reduced in the amounts
and under the circumstances set forth below, all such prepayments and/or
reductions to be applied as set forth below or as more specifically provided in
subsection 2.4B(iv) and subsection 2.4D:


(a)                                  Prepayments
and Reductions From Net Asset Sale Proceeds.  No later than five (5) Business Days
following the receipt by Holdings, Company or any of their Subsidiaries of any
Net Asset Sale Proceeds in respect of any Asset Sale, Company shall either (1)
prepay the Loans and/or the Revolving Loan Commitment Amount shall be
permanently reduced in an aggregate amount equal to such Net Asset Sale
Proceeds or (2), so long as no Potential Event of Default or Event of Default
shall have occurred and be continuing, deliver to Administrative Agent an
Officer’s Certificate setting forth (x) that portion of such Net Asset Sale
Proceeds that Company or such Subsidiary intends to reinvest in equipment or
other productive assets of the general type used in the business of Company and
such Subsidiaries within 270 days of such date of receipt and (y) the proposed
use of such portion of the Net Asset Sale Proceeds and such other information
with respect to such reinvestment as Administrative Agent may reasonably request,
and Company shall, or shall cause one or more of such Subsidiaries to, promptly
and diligently apply such portion to such reinvestment purposes; provided,



 42
 






 



however,
that, pending such reinvestment, such portion of the Net Asset Sale Proceeds
shall be applied to prepay outstanding Revolving Loans (without a reduction in
the Revolving Loan Commitment Amount) to the full extent thereof if there are
any Revolving Loans then outstanding.  In
addition, Company shall, no later than 270 days after receipt of such Net Asset
Sale Proceeds that have not theretofore been applied to the Obligations or that
have not been so reinvested as provided above, make an additional prepayment of
the Loans (and/or the Revolving Loan Commitment Amount shall be permanently
reduced) in the full amount of all such Net Asset Sale Proceeds.


(b)                                 Prepayments
and Reductions from Net Insurance/Condemnation Proceeds.  No later than the five (5) Business Days
following the receipt by Administrative Agent or by Holdings, Company or any of
their Subsidiaries of any Net Insurance/Condemnation Proceeds that are required
to be applied to prepay the Loans and/or reduce the Revolving Loan Commitment
Amount pursuant to the provisions of subsection 6.4C, Company shall prepay the
Loans and/or the Revolving Loan Commitment Amount shall be permanently reduced
in an aggregate amount equal to the amount of such Net Insurance/Condemnation
Proceeds.


(c)                                  Prepayments
and Reductions Due to Issuance of Indebtedness.  On the date of receipt of the Net Securities
Proceeds from the issuance of any Indebtedness of Company, Holdings or any of
its other Subsidiaries after the Restatement Date (other than Indebtedness
permitted pursuant to subsection 7.1), Company shall prepay the Loans and/or the Revolving Loan
Commitment Amount shall be permanently reduced in an aggregate amount equal to
such Net Securities Proceeds.


(d)                                 Prepayments
and Reductions from Consolidated Excess Cash Flow.  In the event that there shall be Consolidated
Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending on
January 1, 2006), Company shall, no later than 120 days after the end of such
Fiscal Year, prepay the Loans and/or the Revolving Loan Commitment Amount shall
be permanently reduced in an aggregate amount equal to 50% (the “Consolidated Excess Cash Flow Percentage”) of such
Consolidated Excess Cash Flow; provided that (I) if the Applicable
Consolidated Leverage Ratio as of the end of such Fiscal Year is 4.00:1.00 or
less but greater than 2.25:1.00, Consolidated Excess Cash Flow Percentage shall
be 25%, and (II) if the Applicable Consolidated Leverage Ratio as of the end of
such Fiscal Year is 2.25:1.00 or less, no prepayment or reduction shall be
required, and provided, further, that any prepayments and/or
reductions required under this subsection (d), shall be reduced on a dollar for
dollar basis by the amount of any voluntary prepayment of Term Loans made
during such Fiscal Year (it being agreed, however, that such credit may not be
carried forward to subsequent years).


(e)                                  Calculations
of Net Proceeds Amounts; Additional Prepayments and Reductions Based on
Subsequent Calculations. 
Concurrently with any



 43
 






 



prepayment of the
Loans and/or reduction of the Revolving Loan Commitment Amount pursuant to
subsections 2.4B(iii)(a)-(d), Company shall deliver to Administrative Agent an
Officer’s Certificate demonstrating the calculation of the amount of the
applicable Net Asset Sale Proceeds, Net Insurance/Condemnation Proceeds, Net
Securities Proceeds, or Consolidated Excess Cash Flow, as the case may be, that
gave rise to such prepayment and/or reduction. 
In the event that Company shall subsequently determine that the actual
amount was greater than the amount set forth in such Officer’s Certificate,
Company shall promptly make an additional prepayment of the Loans (and/or, if
applicable, the Revolving Loan Commitment Amount shall be permanently reduced)
in an amount equal to the amount of such excess, and Company shall concurrently
therewith deliver to Administrative Agent an Officer’s Certificate
demonstrating the derivation of the additional amount resulting in such excess.


(f)                                    Prepayments
Due to Reductions or Restrictions of Revolving Loan Commitment Amount or due to
Insufficient Borrowing Base.  Company
shall from time to time prepay first the Swing Line Loans and second
the Revolving Loans (and, after prepaying all Revolving Loans, Cash
collateralize any outstanding Letters of Credit by depositing the requisite
amount in the Collateral Account) to the extent necessary (1) so that the
Total Utilization of Revolving Loan Commitments shall not at any time exceed
the lesser of (1) the Revolving Loan Commitment Amount then in effect or
(2) the Borrowing Base then in effect. 
At such time as the Total Utilization of Revolving Loan Commitments
shall be equal to or less than the Revolving Loan Commitment Amount and the
Borrowing Base then in effect if no Event of Default has occurred and is
continuing, to the extent any Cash collateral was provided by Company and has
not been applied to any Obligations as provided in the Security Agreement, such
amount may, at the request of Company, be released to Company.


(iv)                              Application
of Prepayments and Unscheduled Reductions of Revolving Loan Commitment Amount.


(a)                                  Application
of Voluntary Prepayments by Type of Loans and Order of Maturity.  Any voluntary prepayments pursuant to
subsection 2.4B(i) shall be applied as specified by Company in the applicable
notice of prepayment (subject to the next sentence); provided that in
the event Company fails to specify the Loans to which any such prepayment shall
be applied, such prepayment shall be applied first to repay outstanding
Swing Line Loans to the full extent thereof, second to repay outstanding
Revolving Loans to the full extent thereof, and third to repay
outstanding Term Loans to the full extent thereof.  Any voluntary prepayments of the Term Loans
pursuant to subsection 2.4B(i) shall be applied to reduce the scheduled
installments of principal of the Term Loans set forth in subsection 2.4A on a
pro rata basis (in accordance with the respective outstanding principal amounts
thereof) to each remaining scheduled installment of principal of the Term Loans
set forth in subsection 2.4A.



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(b)                                 Application
of Mandatory Prepayments by Type of Loans. 
Except as provided in subsection 2.4D, any amount required to be applied
as a mandatory prepayment of the Loans and/or a reduction of the Revolving Loan
Commitment Amount pursuant to subsections 2.4B(iii)(a)-(d) shall, be applied first
to prepay the Term Loans to the full extent thereof, second, to the
extent of any remaining portion of such amount, to prepay the Swing Line Loans
to the full extent thereof and to permanently reduce the Revolving Loan
Commitment Amount by the amount of such prepayment, and third, to the
extent of any remaining portion of such amount, to prepay the Revolving Loans
to the full extent thereof (and, after prepaying all Revolving Loans, Cash
collateralize any outstanding Letters of Credit by depositing the requisite
amount in the Collateral Account) and to further permanently reduce the
Revolving Loan Commitment Amount by the amount of such prepayment.  Any mandatory reduction of the Revolving Loan
Commitment Amount pursuant to this subsection 2.4B shall be in proportion to
each Revolving Lender’s Pro Rata Share.


(c)                                  Application
of Mandatory Prepayments of Term Loans and the Scheduled Installments of
Principal Thereof.  Except as
provided in subsection 2.4D, any mandatory prepayments of the Term Loans
pursuant to subsection 2.4B(iii) shall be applied to reduce the scheduled
installments of principal of the Term Loans set forth in subsection 2.4A on a
pro rata basis (in accordance with the respective outstanding principal amounts
thereof) to each scheduled installment of principal of the Term Loans set forth
in subsection 2.4A that is unpaid at the time of such prepayment.


(d)                                 Application
of Prepayments to Base Rate Loans and LIBOR Loans.  Considering Term Loans and Revolving Loans
being prepaid separately, any prepayment thereof shall be applied first to Base
Rate Loans to the full extent thereof before application to LIBOR Loans, in
each case in a manner that minimizes the amount of any payments required to be
made by Company pursuant to subsection 2.6D.


(e)                                  Application
of Unscheduled Reductions of the Revolving Loan Commitment Amount.  Any voluntary or mandatory reduction of the
Revolving Loan Commitment Amount pursuant to subsection 2.4B(ii) or 2.4B(iii), respectively, shall be in proportion
of each Lender’s Pro Rata Share.


C.                                    General Provisions Regarding Payments.


(i)                                     Manner
and Time of Payment.  All payments by
Company 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
1:00 P.M. (New York City time) on the date due at the Funding and Payment
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 Company on the next succeeding Business Day.  Company hereby authorizes Administrative
Agent to charge its accounts with Administrative Agent in order to cause



 45
 






 



timely payment to
be made to Administrative Agent of all principal, interest, fees and expenses
due hereunder (subject to sufficient funds being available in its accounts for
that purpose).


(ii)                                  Application
of Payments to Principal and Interest. 
Except as provided in subsection 2.2C, all payments in respect of the
principal amount of any Loan shall include payment of accrued interest on the
principal amount being repaid or prepaid, and all such payments shall be
applied to the payment of interest before application to principal.


(iii)                               Apportionment
of Payments.  Aggregate payments of
principal and interest shall be apportioned among all outstanding Loans to
which such payments relate, in each case proportionately to Lenders’ respective
Pro Rata Shares.  Administrative Agent
shall promptly distribute to each Lender, at the account specified in the
payment instructions delivered to Administrative Agent by such Lender, its Pro
Rata Share of all such payments received by Administrative Agent and the
commitment fees and letter of credit fees of such Lender, if any, when received
by Administrative Agent pursuant to subsection 2.3 and subsection
3.2.  Notwithstanding the foregoing
provisions of this subsection 2.4C(iii), if, pursuant to the provisions of
subsection 2.6C, any Notice of Conversion/Continuation 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 LIBOR Loans, Administrative Agent shall give effect
thereto in apportioning interest payments received thereafter.


(iv)                              Payments
on Business Days.  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 or of the commitment fees hereunder, as the case may be.


(v)                                 Notation
of Payment.  Each Lender agrees that
before disposing of any Note held by it, or any part thereof (other than by
granting participations therein), that Lender will make a notation thereon of
all Loans evidenced by that Note and all principal payments previously made
thereon and of the date to which interest thereon has been paid; provided
that the failure to make (or any error in the making of) a notation of any Loan
made under such Note shall not limit or otherwise affect the obligations of
Company hereunder or under such Note with respect to any Loan or any payments
of principal or interest on such Note.


D.                                    Application of Proceeds of Collateral and
Payments after Event of Default.


Upon the occurrence and during the continuation of an
Event of Default, if requested by Requisite Lenders, or upon acceleration of
the Obligations pursuant to Section 8, (a) all payments received by Administrative
Agent, whether from Company, Holdings or any Subsidiary Guarantor or otherwise,
and (b) all proceeds received by Administrative Agent in respect of any sale
of, collection from, or other realization upon all or any part of the
Collateral



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under any Collateral Document may, in the discretion
of Administrative Agent, be held by Administrative Agent as Collateral for,
and/or (then or at any time thereafter) applied in full or in part by
Administrative Agent, in each case in the following order of priority:


(i)                                     to
the payment of all costs and expenses of such sale, collection or other
realization, all other expenses, liabilities and advances made or incurred by
Administrative Agent in connection therewith, and all amounts for which
Administrative Agent is entitled to compensation (including the fees described
in subsection 2.3), reimbursement and indemnification under any Loan Document
and all advances made by Administrative Agent thereunder for the account of the
applicable Loan Party, and to the payment of all costs and expenses paid or
incurred by Administrative Agent in connection with the Loan Documents, all in
accordance with subsections 9.4, 10.2 and 10.3 and the other terms of this
Agreement and the Loan Documents;


(ii)                                  thereafter,
to the payment of the Obligations and obligations of Loan Parties under any
Lender Hedge Agreement for the ratable benefit of the holders thereof (subject
to the provisions of subsection 2.4C(ii) hereof); and


(iii)                               thereafter,
to the payment to or upon the order of such Loan Party or to whosoever may be
lawfully entitled to receive the same or as a court of competent jurisdiction
may direct.


2.5                               Use of Proceeds.


A.                                    Term Loans.  The proceeds of the Term Loans
outstanding on the Restatement Date have been applied to the purposes
contemplated by the Original Credit Agreement.


B.                                    Revolving
Loans and Swing Line Loans.  The
proceeds of the Revolving Loans and Swing Line Loans shall be applied by
Company for the issuance of Letters of Credit and for working capital and other
general corporate purposes, which may include (1) the making of intercompany
loans to any wholly-owned Subsidiaries in accordance with subsection 7.1(iv),
for their own general corporate purposes and (2) Permitted Acquisitions.


C.                                    Margin Regulations.  No portion of the proceeds of any borrowing
under this Agreement shall be used by Company or any of its Subsidiaries in any
manner that might cause the borrowing or the application of such proceeds to
violate Regulation U, Regulation T or Regulation X of the Board of
Governors of the Federal Reserve System or any other regulation of such Board
or to violate the Exchange Act, in each case as in effect on the date or dates
of such borrowing and such use of proceeds.


2.6                               Special Provisions Governing LIBOR Loans.


Notwithstanding any other
provision of this Agreement to the contrary, the following provisions shall
govern with respect to LIBOR Loans as to the matters covered:


A.                                    Determination of Applicable Interest Rate.  On each Interest Rate Determination Date, Administrative
Agent shall determine in accordance with the terms of this



 47
 






 



Agreement (which
determination shall, absent manifest error, be final conclusive and binding
upon all parties) the interest rate that shall apply to the LIBOR 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 Company and each applicable Lender.


B.                                    Inability to Determine Applicable Interest
Rate.  In the event that
Administrative Agent shall have determined (which determination shall be final,
conclusive and binding upon all parties hereto), on any Interest Rate
Determination Date 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 LIBOR, Administrative Agent shall on such date give notice (by
telefacsimile or by telephone confirmed in writing) to Company and each Lender
of such determination, whereupon (i) no Loans may be made as, or converted
to, LIBOR Loans until such time as Administrative Agent notifies Company and
such Lenders that the circumstances giving rise to such notice no longer exist
and (ii) any Notice of Borrowing or Notice of Conversion/Continuation
given by Company with respect to the Loans in respect of which such
determination was made shall be deemed to be for a Base Rate Loan.


C.                                    Illegality or Impracticability of LIBOR Loans.  In the event that on any date any Lender
shall have determined (which determination shall be final, conclusive and
binding upon all parties hereto but shall be made only after consultation with
Company and Administrative Agent) that the making, maintaining or continuation
of its LIBOR 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, or would cause such Lender material hardship, as a result of
contingencies occurring after the date of this Agreement 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 Company
and Administrative Agent of such determination. 
Administrative Agent shall promptly notify each other Lender of the
receipt of such notice.  Thereafter
(a) the obligation of the Affected Lender to make Loans as, or to convert
Loans to, LIBOR Loans shall be suspended until such notice shall be withdrawn
by the Affected Lender, (b) to the extent such determination by the
Affected Lender relates to a LIBOR Loan then being requested by Company
pursuant to a Notice of Borrowing or a Notice of Conversion/Continuation, the
Affected Lender shall make such Loan as (or convert such Loan to, as the case
may be) a Base Rate Loan, (c) the Affected Lender’s obligation to maintain
its outstanding LIBOR 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 (d) 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 LIBOR Loan then being requested by Company pursuant to a
Notice of Borrowing or a Notice of Conversion/Continuation, Company shall have
the option, subject to the provisions of subsection 2.6D, to rescind such
Notice of Borrowing or Notice of Conversion/Continuation 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



 48
 






 



Affected Lender gives
notice of its determination as described above. 
Administrative Agent shall promptly notify each other Lender of the
receipt of such notice.  Except as provided
in the immediately preceding sentence, nothing in this subsection 2.6C shall
affect the obligation of any Lender other than an Affected Lender to make or
maintain Loans as, or to convert Loans to, LIBOR Loans in accordance with the
terms of this Agreement.


D.                                    Compensation For Breakage or Non-Commencement
of Interest Periods.  Company
shall compensate each Lender, upon written request by that Lender pursuant to
subsection 2.8, for all reasonable losses, expenses and liabilities (including
any interest paid by that Lender to lenders of funds borrowed by it to make or
carry its LIBOR Loans and any loss, expense or liability sustained by that
Lender in connection with the liquidation or re-employment of such funds but
excluding any loss of profit such as the LIBOR Margin) which that Lender may
sustain: (i) if for any reason (other than a default by that Lender) a
borrowing of any LIBOR Loan does not occur on a date specified therefor in a
Notice of Borrowing or a telephonic request therefor, or a conversion to or
continuation of any LIBOR Loan does not occur on a date specified therefor in a
Notice of Conversion/Continuation or a telephonic request therefor,
(ii) if any prepayment or other principal payment or any conversion of any
of its LIBOR Loans (including any prepayment or conversion occasioned by the
circumstances described in subsection 2.6C) occurs on a date prior to the last
day of an Interest Period applicable to that Loan, and (iii) if any
prepayment of any of its LIBOR Loans is not made on any date specified in a
notice of prepayment given by Company.


E.                                      Booking of LIBOR Loans.  Any Lender may make, carry or transfer LIBOR
Loans at, to, or for the account of any of its branch offices or the office of
an Affiliate of that Lender.


F.                                      Assumptions Concerning Funding of LIBOR Loans.
 Calculation of all amounts payable to a
Lender under this subsection 2.6 and under subsection 2.7A shall be made as
though that Lender had funded each of its LIBOR Loans through the purchase of a
LIBOR deposit bearing interest at the rate obtained pursuant to the definition
of LIBOR in an amount equal to the amount of such LIBOR Loan and having a
maturity comparable to the relevant Interest Period, whether or not its LIBOR
Loans had been funded in such manner.


G.                                    LIBOR Loans After Default.  After the occurrence of and during the
continuation of an Event of Default, if Requisite Lenders so elect,
(i) Company may not elect to have a Loan be made or maintained as, or
converted to, a LIBOR Loan after the expiration of any Interest Period then in
effect for that Loan and (ii) subject to the provisions of subsection
2.6D, any Notice of Borrowing or Notice of Conversion/Continuation given by
Company with respect to a requested borrowing or conversion/continuation that
has not yet occurred shall be deemed to be for a Base Rate Loan or, if the
conditions to making a Loan set forth in subsection 4.2 cannot then be
satisfied, to be rescinded by Company.


2.7                               Increased Costs; Taxes; Capital Adequacy.


A.                                    Compensation for Increased Costs.  Subject to the provisions of subsection 2.7B
(which shall be controlling with respect to the matters covered thereby), in
the event that any Lender (including any Issuing Lender) shall determine (which
determination shall,



 49
 






 



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 other Government Authority, in each case that becomes effective
after the date such Lender became a Lender, or compliance by such Lender with
any guideline, request or directive issued or made after the date hereof by any
central bank or other Government Authority (whether or not having the force of
law):


(i)                                     subjects
such Lender to any additional Tax with respect to this Agreement or any of its
obligations hereunder (including with respect to issuing or maintaining any
Letters of Credit or purchasing or maintaining any participations therein or
maintaining any Commitment hereunder) or any payments to such Lender of
principal, interest, fees or any other amount payable hereunder;


(ii)                                  imposes,
modifies or holds applicable any reserve, special deposit, compulsory loan,
insurance charge 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 LIBOR
Loans that are reflected in the definition of LIBOR); or


(iii)                               imposes
any other condition (other than with respect to Taxes) on or affecting such
Lender 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 its Loans or
Commitments or agreeing to issue, issuing or maintaining any Letter of Credit
or agreeing to purchase, purchasing or maintaining any participation therein or
to reduce any amount received or receivable by such Lender with respect
thereto; then, in any such case, Company shall promptly pay to such Lender,
upon receipt of the statement referred to in subsection 2.8A, 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 on an after-tax
basis for any such increased cost or reduction in amounts received or
receivable hereunder; provided that Company shall not be obligated to
pay such additional amounts to the extent such additional amounts are incurred
more than nine (9) months prior to the giving of such statement; provided,
further, that, if such law, rule, regulation, order, guideline, request or
other legal requirement giving rise to such increased costs or reductions is
retroactive, then the nine (9) month period referred to above shall be extended
to include the period of retroactive effect thereof.


B.                                    Taxes.


(i)                                     Payments
to Be Free and Clear.  All sums
payable by Company under this Agreement and the other Loan Documents shall 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



 50
 






 



made by or on
behalf of Company or by any federation or organization of which the United
States of America or any such jurisdiction is a member at the time of payment.


(ii)                                  Grossing-up
of Payments.  If Company or any other
Person is required by law to make any deduction or withholding on account of
any such Tax from any sum paid or payable by Company to Administrative Agent or
any Lender under any of the Loan Documents:


(a)                                  Company
shall notify Administrative Agent of any such requirement or any change in any
such requirement as soon as Company becomes aware of it;


(b)                                 Company
shall pay any such Tax when such Tax is due, such payment to be made (if the
liability to pay is imposed on Company) 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;


(c)                                  the
sum payable by Company 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


(d)                                 within
30 days after paying any sum from which it is required by law to make any
deduction or withholding, and within 30 days after the due date of payment of
any Tax which it is required by clause (b) above to pay, Company 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 that no such additional
amount shall be required to be paid to any Lender under clause (c) above except
to the extent that any change after the date on which such Lender became a
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 on the date on which such Lender
became a Lender in respect of payments to such Lender.


(iii)                               Evidence of Exemption
from U.S. Withholding Tax.


(a)                                  Each
Non-US Lender shall deliver to
Administrative Agent and to Company, on or prior to the Original Closing Date
(in the case of each Lender listed on the signature pages hereof) or on or
prior to the date of the Assignment 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 Company or Administrative Agent (each in the
reasonable exercise of its discretion), two original copies of Internal Revenue
Service Form W-8BEN or W-8ECI (or any successor forms) properly completed and
duly executed by such 



 51
 






 



Lender, or, in the
case of a Non-US Lender claiming exemption from United States federal
withholding tax under Section 871(h) or 881(c) of the Internal Revenue Code with
respect to payments of “portfolio interest”, a form W-8BEN, and a certificate
of such Lender certifying that such Lender is not (i) a “bank” for
purposes of Section 881(c) of the Internal Revenue Code, (ii) a ten-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Internal Revenue
Code) of Company or Holdings or (iii) a controlled foreign corporation
related to Company (within the meaning of Section 864(d)(4) of the Internal
Revenue Code), in each case together with any other certificate or statement of
exemption required under the Internal Revenue Code or the regulations issued
thereunder to establish that such Lender is not subject to United States
withholding tax with respect to any payments to such Lender of amounts payable
under any of the Loan Documents.


(b)                                 Each
Non-US Lender, to the extent it does not act or ceases to act for its own
account with respect to any portion of any sums paid or payable to such Lender
under any of the Loan Documents (for example, in the case of a typical
participation by such Lender), shall deliver to Administrative Agent and to
Company, on or prior to the Original Closing Date (in the case of each Lender
listed on the signature pages hereof), on or prior to the date of the
Assignment Agreement pursuant to which it becomes a Lender (in the case of each
other Lender), or on such later date when such Lender ceases to act for its own
account with respect to any portion of any such sums paid or payable, and at
such other times as may be necessary in the determination of Company or
Administrative Agent (each in the reasonable exercise of its discretion), (1)
two original copies of the forms or statements required to be provided by such
Lender under subsection 2.7B(iii)(a), properly completed and duly executed by
such Lender, to establish the portion of any such sums paid or payable with
respect to which such Lender acts for its own account that is not subject to
United States withholding tax, and (2) two original copies of Internal Revenue
Service Form W-8IMY (or any successor forms) properly completed and duly
executed by such Lender, together with any information, if any, such Lender
chooses to transmit with such form, and any other certificate or statement of
exemption required under the Internal Revenue Code or the regulations issued
thereunder, to establish that such Lender is not acting for its own account
with respect to a portion of any such sums payable to such Lender.


(c)                                  Each
Non-US Lender hereby agrees, from time to time after the initial delivery by such
Lender of such forms, whenever a lapse in time or change in circumstances
renders such forms, certificates or other evidence so delivered obsolete or
inaccurate in any material respect, that such Lender shall promptly
(1) deliver to Administrative Agent and to Company two original copies of
renewals, amendments or additional or successor forms, properly completed and
duly executed by such Lender, together with any other certificate or statement
of exemption required in order to confirm or establish that such Lender is not
subject to United States withholding tax with respect to payments to such
Lender under the Loan Documents and, if applicable, that such Lender does not
act for its own



 52
 






 



account with
respect to any portion of such payment, or (2) notify Administrative Agent
and Company of its inability to deliver any such forms, certificates or other
evidence.


(d)                                 Company
shall not be required to pay any additional amount to any Non-US Lender under
clause (c) of subsection 2.7B(ii), (1) with respect to any Tax required to be
deducted or withheld on the basis of the information, certificates or
statements of exemption such Lender chooses to transmit with an Internal
Revenue Service Form W-8IMY pursuant to subsection 2.7B(iii)(b)(2) or (2) if
such Lender shall have failed to satisfy the requirements of clause (a), (b) or
(c)(1) of this subsection 2.7B(iii); provided that if such Lender shall
have satisfied the requirements of subsection 2.7B(iii)(a) on the date such
Lender became a Lender, nothing in this subsection 2.7B(iii)(d) shall relieve
Company of its obligation to pay any amounts pursuant to subsection 2.7B(ii)(c)
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 in subsection 2.7B(iii)(a).


C.                                    Capital Adequacy Adjustment.  If any Lender shall have determined that the
adoption, effectiveness, phase-in or applicability after the date hereof of any
law, rule or regulation (or any provision thereof) regarding capital adequacy, or
any change therein or in the interpretation or administration thereof by any
Government Authority charged with the interpretation or administration thereof,
or compliance by any Lender with any guideline, request or directive regarding
capital adequacy (whether or not having the force of law) of any such
Government Authority, 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 Commitments
or Letters of Credit or participations therein or other obligations hereunder
with respect to the Loans or the Letters of Credit 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 Business
Days after receipt by Company from such Lender of the statement referred to in
subsection 2.8A, Company 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; provided that Company shall not be
obligated to pay such additional amounts to the extent such additional amounts
are incurred more than nine (9) months prior to the giving of such statement; provided,
further, that, if such law, rule, regulation, order, guideline, request
or other legal requirement giving rise to such additional amounts is
retroactive, then the nine (9) month period referred to above shall be extended
to include the period of retroactive effect thereof.



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2.8                               Statement of Lenders; Obligation of Lenders
and Issuing Lenders to Mitigate.


A.                                    Statements.  Each Lender claiming compensation or
reimbursement pursuant to subsection 2.6D, 2.7 or 2.8B shall deliver to Company
(with a copy to Administrative Agent) a written statement, setting forth in reasonable
detail the basis of the calculation of such compensation or reimbursement,
which statement shall be conclusive and binding upon all parties hereto absent
manifest error.


B.                                    Mitigation.  Each Lender and Issuing Lender agrees that,
as promptly as practicable after the officer of such Lender or Issuing Lender
responsible for administering the Loans or Letters of Credit of such Lender or
Issuing Lender, 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 or Issuing Lender to receive
payments under subsection 2.7, it will use reasonable efforts to make, issue,
fund or maintain the Commitments of such Lender or the Loans or Letters of
Credit of such Lender or Issuing Lender through another lending or letter of
credit office of such Lender or Issuing Lender, if (i) 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 or Issuing Lender pursuant to subsection 2.7 would be
materially reduced and (ii) as determined by such Lender or Issuing Lender in
its sole discretion, such action would not otherwise be disadvantageous to such
Lender or Issuing Lender; provided that such Lender or Issuing Lender
will not be obligated to utilize such other lending or letter of credit office
pursuant to this subsection 2.8B unless Company agrees to pay all incremental
expenses incurred by such Lender or Issuing Lender as a result of utilizing
such other lending or letter of credit office as described above.


2.9                               Replacement of a Lender.


If Company receives a statement of amounts due
pursuant to subsection 2.8A from a Lender, a Revolving Lender defaults in its
obligations to fund a Revolving Loan pursuant to this Agreement, a Lender (a “Non-Consenting Lender”) refuses to consent to an amendment,
modification or waiver of this Agreement that, pursuant to subsection 10.6,
requires consent of 100% of the Lenders or 100% of the Lenders with Obligations
directly affected or a Lender becomes an Affected Lender (any such Lender, a “Subject Lender”), so long as (i) no Potential Event
of Default or Event of Default shall have occurred and be continuing and
Company has obtained a commitment from another Lender or an Eligible Assignee
to purchase at par the Subject Lender’s Loans and assume the Subject Lender’s
Commitments and all other obligations of the Subject Lender hereunder, (ii)
such Lender is not an Issuing Lender with respect to any Letters of Credit
outstanding (unless all such Letters of Credit are terminated or arrangements
acceptable to such Issuing Lender (such as a “back-to-back” letter of credit)
are made) and (iii), if applicable, the Subject Lender is unwilling to withdraw
the notice delivered to Company pursuant to subsection 2.8 and/or is unwilling
to remedy its default upon 10 days prior written notice to the Subject Lender
and Administrative Agent, Company may require the Subject Lender to assign all
of its Loans and Commitments to such other Lender, Lenders, Eligible Assignee
or Eligible Assignees pursuant to the provisions of subsection 10.1B; provided
that, prior to or concurrently with such replacement, (1) the Subject Lender
shall have received 



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payment in full of all principal, interest, fees and
other amounts (including all amounts under subsections 2.6D, 2.7 and/or 2.8B
(if applicable)) through such date of replacement and a release from its
obligations under the Loan Documents, (2) the processing fee required to be
paid by subsection 10.1B(i) shall have been paid to Administrative Agent, (3)
all of the requirements for such assignment contained in subsection 10.1B,
including, without limitation, the consent of Administrative Agent (if
required) and the receipt by Administrative Agent of an executed Assignment
Agreement and other supporting documents, have been fulfilled, and (4) in the
event such Subject Lender is a Non-Consenting Lender, each assignee shall
consent, at the time of such assignment, to each matter in respect of which
such Subject Lender was a Non-Consenting Lender and Company also requires each
other Subject Lender that is a Non-Consenting Lender to assign its Loans and
Commitments.  For the avoidance of doubt,
if a Lender is a Non-Consenting Lender solely because it refused to consent to
an amendment, modification or waiver that required the consent of 100% of
Lenders with Obligations directly affected thereby (which amendment,
modification or waiver did not accordingly require the consent of 100% of all
Lenders), the Loans and Commitments of such Non-Consenting Lender that are
subject to the assignments required by this subsection 2.9 shall include
only those Loans and Commitments that constitute the Obligations directly
affected by the amendment, modification or waiver to which such Non-Consenting
Lender refused to provide its consent.


Section
3.                                          LETTERS
OF CREDIT


3.1                               Issuance of Letters of Credit and Lenders’
Purchase of Participations Therein.


A.                                    Letters of Credit.  In addition to Company requesting that
Lenders make Loans pursuant to subsection 2.1A, Company may request, in
accordance with the provisions of this subsection 3.1, from time to time during
the period from the Original Closing Date to but excluding the 30th day prior to the Revolving Loan Commitment
Termination Date, that one or more Revolving Lenders issue Letters of Credit
payable on a sight basis for the account of Company for the general corporate
purposes of Company or a Subsidiary of Company or Holdings.  Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Company
herein set forth, any one or more Revolving Lenders may, but (except as
provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters
of Credit in accordance with the provisions of this subsection 3.1; provided
that Company shall not request that any Revolving Lender issue (and no
Revolving Lender shall issue):


(i)                                     any
Letter of Credit if, after giving effect to such issuance, the Total
Utilization of Revolving Loan Commitments would exceed the lesser of the
Revolving Loan Commitment Amount then in effect or the Borrowing Base then in
effect;


(ii)                                  any
Letter of Credit if, after giving effect to such issuance, the Letter of Credit
Usage would exceed $5,000,000;


(iii)                               any
Standby Letter of Credit having an expiration date later than the earlier of
(a) ten days prior to the Revolving Loan Commitment Termination Date and
(b) the date which is one year from the date of issuance of such Standby
Letter of Credit; provided that the immediately preceding clause (b)
shall not prevent any Issuing Lender



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from agreeing that
a Standby Letter of Credit will automatically be extended for one or more
successive periods not to exceed one year each unless such Issuing Lender
elects not to extend for any such additional period; and provided, further
that such Issuing Lender shall elect not to extend such Standby Letter of
Credit if it has knowledge that an Event of Default has occurred and is
continuing (and has not been waived in accordance with subsection 10.6) at the
time such Issuing Lender must elect whether or not to allow such extension;


(iv)                              any
Standby Letter of Credit issued for the purpose of supporting (a) trade
payables or (b) any Indebtedness constituting “antecedent debt” (as that term
is used in Section 547 of the Bankruptcy Code);


(v)                                 any
Commercial Letter of Credit having an expiration date (a) later than the
earlier of (1) the date which is 30 days prior to the Revolving Loan
Commitment Termination Date and (2) the date which is 180 days from the date of
issuance of such Commercial Letter of Credit or (b) that is otherwise
unacceptable to the applicable Issuing Lender in its reasonable discretion; or


(vi)                              any
Letter of Credit denominated in a currency other than Dollars.


B.                                    Mechanics of Issuance.


(i)                                     Request
for Issuance.  Whenever Company
desires the issuance of a Letter of Credit, it shall deliver to Administrative
Agent a Request for Issuance not later than 1:00 P.M. (New York City time) at
least three Business Days (in the case of Standby Letters of Credit) or five
Business Days (in the case of Commercial Letters of Credit), or in each case
such shorter period as may be agreed to by the Issuing Lender in any particular
instance, in advance of the proposed date of issuance.  The Issuing Lender, in its reasonable
discretion, may require changes in the text of the proposed Letter of Credit or
any documents described in or attached to the Request for Issuance (it being
understood that if any term of such proposed Letter of Credit or such other
document shall contradict or otherwise conflict with any term or provision
contained in this Agreement, the term or provision contained in this Agreement
shall control).  In furtherance of the
provisions of subsection 10.8, and not in limitation thereof, Company may
submit Requests for Issuance by telefacsimile and Administrative Agent and
Issuing Lenders may rely and act upon any such Request for Issuance without
receiving an original signed copy thereof.


Company shall notify the applicable Issuing Lender
(and Administrative Agent, if Administrative Agent is not such Issuing Lender)
prior to the issuance of any Letter of Credit in the event that any of the
matters to which Company is required to certify in the applicable Request for
Issuance is no longer true and correct as of the proposed date of issuance of
such Letter of Credit, and upon the issuance of any Letter of Credit Company
shall be deemed to have re-certified, as of the date of such issuance, as to
the matters to which Company is required to certify in the applicable Request
for Issuance.



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(ii)                                  Determination
of Issuing Lender.  Upon receipt by
Administrative Agent of a Request for Issuance pursuant to subsection 3.1B(i)
requesting the issuance of a Letter of Credit, in the event Administrative
Agent elects to issue such Letter of Credit, Administrative Agent shall
promptly so notify Company, and Administrative Agent shall be the Issuing Lender
with respect thereto.  In the event that
Administrative Agent, in its sole discretion, elects not to issue such Letter
of Credit, Administrative Agent shall promptly so notify Company, whereupon
Company may request any other Revolving Lender to issue such Letter of Credit
by delivering to such Revolving Lender a copy of the applicable Request for
Issuance.  Any Revolving Lender so
requested to issue such Letter of Credit shall promptly notify Company and
Administrative Agent whether or not, in its sole discretion, it has elected to
issue such Letter of Credit, and any such Revolving Lender that so elects to
issue such Letter of Credit shall be the Issuing Lender with respect
thereto.  In the event that all other
Revolving Lenders shall have declined to issue such Letter of Credit,
notwithstanding the prior election of Administrative Agent not to issue such
Letter of Credit, Administrative Agent shall be obligated to issue such Letter
of Credit and shall be the Issuing Lender with respect thereto, notwithstanding
the fact that the Letter of Credit Usage with respect to such Letter of Credit
and with respect to all other Letters of Credit issued by Administrative Agent,
when aggregated with Administrative Agent’s outstanding Revolving Loans and
Swing Line Loans, may exceed the amount of Administrative Agent’s Revolving
Loan Commitment then in effect.


(iii)                               Issuance
of Letter of Credit.  Upon
satisfaction or waiver (in accordance with subsection 10.6) of the conditions
set forth in subsection 4.3, the Issuing Lender shall issue the requested
Letter of Credit in accordance with the Issuing Lender’s standard operating
procedures.


(iv)                              Notification
to Revolving Lenders.  Upon the
issuance of or amendment to any Standby Letter of Credit the applicable Issuing
Lender shall promptly notify Administrative Agent and Company of such issuance
or amendment in writing and such notice shall be accompanied by a copy of such
Standby Letter of Credit or amendment. 
Upon receipt of such notice (or, if Administrative Agent is the Issuing
Lender, together with such notice), Administrative Agent shall notify each
Revolving Lender in writing of such issuance or amendment and the amount of
such Revolving Lender’s respective participation in such Standby Letter of
Credit or amendment, and, if so requested by a Revolving Lender, Administrative
Agent shall provide such Lender with a copy of such Letter of Credit or
amendment.  In the case of Commercial
Letters of Credit, in the event that Issuing Lender is other than
Administrative Agent, such Issuing Lender will send by facsimile transmission
to Administrative Agent, promptly upon the first Business Day of each week, a
report of its daily aggregate maximum amount available for drawing under
Commercial Letters of Credit for the previous week.  Upon receipt of such report, Administrative
Agent shall notify each Revolving Lender in writing of the contents thereof.


C.                                    Revolving Lenders’ Purchase of Participations
in Letters of Credit. 
Immediately upon the issuance of each Letter of Credit, each Revolving
Lender shall be deemed to, and hereby agrees to, have irrevocably purchased
from the Issuing Lender a participation in such Letter of Credit and any
drawings honored thereunder in an amount equal to such



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Revolving Lender’s Pro
Rata Share of the maximum amount that is or at any time may become available to
be drawn thereunder.


3.2                               Letter of Credit Fees.


Company agrees to pay the
following amounts with respect to Letters of Credit issued hereunder:


(i)                                     with
respect to each Letter of Credit, (a) a fronting fee, payable directly to
the applicable Issuing Lender for its own account, equal to 0.25% per annum of
the daily amount available to be drawn under such Letter of Credit and
(b) a letter of credit fee, payable to Administrative Agent for the
account of Revolving Lenders, equal to the applicable LIBOR Margin for the
Revolving Loans multiplied by the daily amount available to be drawn under such
Letter of Credit, each such fronting fee or letter of credit fee to be payable
in arrears on and to (but excluding) each March 31, June 30,
September 30 and December 31 of each year and computed on the basis
of a 360-day year for the actual
number of days elapsed; and


(ii)                                  with
respect to the issuance, amendment or transfer of each Letter of Credit and each
payment of a drawing made thereunder (without duplication of the fees payable
under clause (i) above), documentary and processing charges payable directly to
the applicable Issuing Lender for its own account in accordance with such
Issuing Lender’s standard schedule for such charges in effect at the time of
such issuance, amendment, transfer or payment, as the case may be.


For purposes of
calculating any fees payable under clause (i) of this subsection 3.2,
the daily amount available to be drawn under any Letter of Credit shall be
determined as of the close of business on any date of determination.


3.3                               Drawings and Reimbursement of Amounts Paid
Under Letters of Credit.


A.                                    Responsibility of Issuing Lender With Respect
to Drawings.  In determining
whether to honor any drawing under any Letter of Credit by the beneficiary
thereof, the Issuing Lender shall be responsible only to examine the documents
delivered under such Letter of Credit with reasonable care so as to ascertain
whether they appear on their face to be in accordance with the terms and
conditions of such Letter of Credit.


B.                                    Reimbursement by Company of Amounts Paid
Under Letters of Credit.  In
the event an Issuing Lender has determined to honor a drawing under a Letter of
Credit issued by it, such Issuing Lender shall immediately notify Company and
Administrative Agent, and Company shall reimburse such Issuing Lender on or
before the Business Day immediately following the date on which such drawing is
honored (the “Reimbursement Date”)
in an amount in Dollars and in same day funds equal to the amount of such
payment; provided that, anything contained in this Agreement to the
contrary notwithstanding, (i) unless Company shall have notified Administrative
Agent and such Issuing Lender prior to 12:00 Noon (New York City time) on the
date such drawing is honored that Company intends to reimburse such Issuing
Lender for the amount of such payment with funds other than the proceeds of
Revolving



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Loans, Company shall be
deemed to have given a timely Notice of Borrowing to Administrative Agent
requesting Revolving Lenders to make Revolving Loans that are Base Rate Loans
on the Reimbursement Date in an amount in Dollars equal to the amount of such
payment and Administrative Agent shall promptly notify each Revolving Lender of
the proposed borrowing and (ii) subject to satisfaction or waiver of the
conditions specified in subsection 4.2B, Revolving Lenders shall, on the
Reimbursement Date, make Revolving Loans that are Base Rate Loans in the amount
of such payment, the proceeds of which shall be applied directly by
Administrative Agent to reimburse such Issuing Lender for the amount of such
payment; and provided, further that if for any reason proceeds of
Revolving Loans are not received by such Issuing Lender on the Reimbursement
Date in an amount equal to the amount of such payment, Company shall reimburse
such Issuing Lender, on demand, in an amount in same day funds equal to the
excess of the amount of such payment over the aggregate amount of such
Revolving Loans, if any, which are so received. 
Nothing in this subsection 3.3B shall be deemed to relieve any Revolving
Lender from its obligation to make Revolving Loans on the terms and conditions
set forth in this Agreement, and Company shall retain any and all rights it may
have against any Revolving Lender resulting from the failure of such Revolving
Lender to make such Revolving Loans under this subsection 3.3B.


C.                                    Payment by Lenders of Unreimbursed Amounts
Paid Under Letters of Credit.


(i)                                     Payment
by Revolving Lenders.  In the event
that Company shall fail for any reason to reimburse any Issuing Lender as
provided in subsection 3.3B in an amount equal to the amount of any payment by
such Issuing Lender under a Letter of Credit issued by it, such Issuing Lender
shall promptly notify Administrative Agent, who shall promptly notify each
Revolving Lender of the unreimbursed amount of such honored drawing and of such
Revolving Lender’s respective participation therein based on such Revolving
Lender’s Pro Rata Share.  Each Revolving
Lender (other than such Issuing Lender) shall make available to Administrative
Agent an amount equal to its respective participation, in Dollars, in same day
funds, at the Funding and Payment Office, not later than 1:00 P.M. (New York
City time) on the first Business Day after the date notified by Administrative
Agent, and Administrative Agent shall make available to such Issuing Lender in
Dollars, in same day funds, at the office of such Issuing Lender on such
Business Day the aggregate amount of the payments so received by Administrative
Agent.  In the event that any Revolving
Lender fails to make available to Administrative Agent on such Business Day the
amount of such Revolving Lender’s participation in such Letter of Credit as
provided in this subsection 3.3C, such Issuing Lender shall be entitled to
recover such amount on demand from such Revolving Lender together with interest
thereon at the rate customarily used by such Issuing Lender for the correction
of errors among banks for three Business Days and thereafter at the Base
Rate.  Nothing in this subsection 3.3C
shall be deemed to prejudice the right of Administrative Agent to recover, for
the benefit of Revolving Lenders, from any Issuing Lender any amounts made
available to such Issuing Lender pursuant to this subsection 3.3C in the event
that it is determined by the final judgment of a court of competent
jurisdiction that the payment with respect to a Letter of Credit by such
Issuing Lender in respect of which payments were made by Revolving Lenders
constituted gross negligence, bad faith or willful misconduct on the part of
such Issuing Lender.



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(ii)                                  Distribution
to Lenders of Reimbursements Received From Company.  In the event any Issuing Lender shall have
been reimbursed by other Revolving Lenders pursuant to subsection 3.3C(i) for
all or any portion of any payment by such Issuing Lender under a Letter of
Credit issued by it, and Administrative Agent or such Issuing Lender thereafter
receives any payments from Company in reimbursement of such payment under the
Letter of Credit, to the extent any such payment is received by such Issuing
Lender, it shall distribute such payment to Administrative Agent, and
Administrative Agent shall (or, to the extent that Administrative Agent
receives any such payment directly, it shall) distribute to each other
Revolving Lender that has paid all amounts payable by it under subsection
3.3C(i) with respect to such payment such Revolving Lender’s Pro Rata Share of
all payments subsequently received by Administrative Agent or by such Issuing
Lender from Company.  Any such
distribution shall be made to a Revolving Lender at the account specified in
subsection 2.4C(iii).


D.                                    Interest on Amounts Paid Under Letters of
Credit.


(i)                                     Payment
of Interest by Company.  Company
agrees to pay to Administrative Agent, with respect to payments under any
Letters of Credit issued by any Issuing Lender, interest on the amount paid by
such Issuing Lender in respect of each such payment from the date a drawing is
honored to but excluding the date such amount is reimbursed by Company
(including any such reimbursement out of the proceeds of Revolving Loans
pursuant to subsection 3.3B) at a rate equal to (a) for the period from the
date such drawing is honored to but excluding the Reimbursement Date, the rate
then in effect under this Agreement with respect to Revolving Loans that are
Base Rate Loans and (b) thereafter, a rate which is 2% per annum in excess of
the rate of interest otherwise payable under this Agreement with respect to
Revolving Loans that are Base Rate Loans. 
Interest payable pursuant to this subsection 3.3D(i) shall be computed
on the basis of a 360-day year for
the actual number of days elapsed in the period during which it accrues and
shall be payable on demand or, if no demand is made, on the date on which the
related drawing under a Letter of Credit is reimbursed in full.


(ii)                                  Distribution
of Interest Payments by Administrative Agent.  Promptly upon receipt by Administrative Agent
of any payment of interest pursuant to subsection 3.3D(i) with respect to a
payment under a Letter of Credit, (a) Administrative Agent shall distribute to
(x) each Revolving Lender (including the Revolving Lender that paid such
drawing) out of the interest received by Administrative Agent in respect of the
period from the date such drawing is honored to but excluding the date on which
the applicable Issuing Lender is reimbursed for the amount of such payment
(including any such reimbursement out of the proceeds of Revolving Loans
pursuant to subsection 3.3B), the amount that such Revolving Lender would have
been entitled to receive in respect of the letter of credit fee that would have
been payable in respect of such Letter of Credit for such period pursuant to
subsection 3.2 if no drawing had been honored under such Letter of Credit, and
(y) such Issuing Lender the amount, if any, remaining after payment of the
amounts applied pursuant to clause (x), and (b) in the event such Issuing
Lender shall have been reimbursed by other Revolving Lenders pursuant to
subsection 3.3C(i) for all or any portion of such payment, Administrative Agent
shall distribute to each Revolving Lender (including such Issuing Lender) that
has paid all amounts payable by it under



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subsection 3.3C(i)
with respect to such payment such Revolving Lender’s Pro Rata Share of any
interest received by Administrative Agent in respect of that portion of such
payment so made by Revolving Lenders for the period from the date on which such
Issuing Lender was so reimbursed to but excluding the date on which such
portion of such payment is reimbursed by Company.  Any such distribution shall be made to a
Revolving Lender at the account specified in subsection 2.4C(iii).


E.                                      Cash
Collateralization.  If Administrative
Agent notifies Company at any time that the Letter of Credit Usage at such time
exceeds 105% of the sublimit for Letters of Credit specified in
subsection 3.1A(ii), then, within two Business Days after receipt of such
notice, Company shall deposit in the Collateral Account established pursuant to
the Security Agreement an amount equal to the amount by which the Letter of
Credit Usage exceeds such sublimit, which amount shall constitute Collateral
and be subject to the provisions of the Security Agreement.  At such time as the Letter of Credit Usage
shall be equal to or less than such sublimit, if no Event of Default has
occurred and is continuing, such amount may, at the request of Company, be
released to Company.


3.4                               Obligations
Absolute.


The obligation of Company to reimburse each Issuing
Lender for payments under the Letters of Credit issued by it and to repay any
Revolving Loans made by Revolving Lenders pursuant to subsection 3.3B and the
obligations of Revolving Lenders under subsection 3.3C(i) shall be
unconditional and irrevocable and shall be paid strictly in accordance with the
terms of this Agreement under all circumstances including any of the following
circumstances:


(i)                                     any
lack of validity or enforceability of any Letter of Credit;


(ii)                                  the
existence of any claim, set-off, defense or other right which Company or any
Lender may have at any time against a beneficiary or any transferee of any
Letter of Credit (or any Persons for whom any such transferee may be acting),
any Issuing Lender or other Revolving Lender or any other Person or, in the
case of a Revolving Lender, against Company, whether in connection with this
Agreement, the transactions contemplated herein or any unrelated transaction
(including any underlying transaction between Company or one of its
Subsidiaries and the beneficiary for which any Letter of Credit was procured);


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


(iv)                              payment
by the applicable Issuing Lender under any Letter of Credit against presentation
of a draft or other document which does not substantially comply with the terms
of such Letter of Credit;


(v)                                 any
adverse change in the business, operations, properties, assets, condition
(financial or otherwise) or prospects of Company or any of its Subsidiaries;



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(vi)                              any
breach of this Agreement or any other Loan Document by any party thereto;


(vii)                           any
other circumstance or happening whatsoever, whether or not similar to any of
the foregoing; or


(viii)                        the fact
that an Event of Default or a Potential Event of Default shall have occurred
and be continuing;


provided, in each case, that payment
by the applicable Issuing Lender under the applicable Letter of Credit shall
not have constituted gross negligence, bad faith or willful misconduct of such
Issuing Lender under the circumstances in question (as determined by a final
judgment of a court of competent jurisdiction).


3.5                               Nature of Issuing Lenders’ Duties.


As between Company and any Issuing Lender, Company
assumes all risks of the acts and omissions of, or misuse of the Letters of
Credit issued by such Issuing Lender by, the respective beneficiaries of such
Letters of Credit.  In furtherance and
not in limitation of the foregoing, such Issuing Lender shall not be
responsible for:  (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
any such Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason; (iii) failure of the
beneficiary of any such Letter of Credit to comply fully with any conditions
required in order to draw upon such Letter of Credit; (iv) errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise, whether or not they be in
cipher; (v) errors in interpretation of technical terms; (vi) any loss or
delay in the transmission or otherwise of any document required in order to
make a drawing under any such Letter of Credit or of the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit of the
proceeds of any drawing under such Letter of Credit; or (viii) any consequences
arising from causes beyond the control of such Issuing Lender, including any
act or omission by a Government Authority, and none of the above shall affect
or impair, or prevent the vesting of, any of such Issuing Lender’s rights or
powers hereunder.


In furtherance and extension and not in limitation of
the specific provisions set forth in the first paragraph of this subsection
3.5, any action taken or omitted by any Issuing Lender under or in connection
with the Letters of Credit issued by it or any documents and certificates
delivered thereunder, if taken or omitted in good faith, shall not put such
Issuing Lender under any resulting liability to Company.


Notwithstanding anything to the contrary contained in
this subsection 3.5, Company shall retain any and all rights it may have
against any Issuing Lender for any liability arising solely out of the gross
negligence or willful misconduct of such Issuing Lender, as determined by a
final judgment of a court of competent jurisdiction.



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Section
4.                                          CONDITIONS
TO RESTATEMENT, LOANS AND LETTERS OF CREDIT


The effectiveness of this Agreement and the
obligations of Lenders to make Loans and issue Letters of Credit hereunder
after the Restatement Date are subject to the satisfaction of the following
conditions.


4.1                               Conditions to Restatement.


The effectiveness of this Agreement is subject to
prior or concurrent satisfaction of the following conditions:


A.                                    Loan Party Documents.  On or before the Restatement Date, Holdings
and Company shall, and shall cause each other Loan Party to, deliver to Lenders
(or to Administrative Agent with sufficient originally executed copies, where
appropriate, for each Lender) the following with respect to Holdings, Company
or such Loan Party, as the case may be, each, unless otherwise noted, dated the
Restatement Date:


(i)                                     Copies
of the Organizational Documents of such Person, certified by the Secretary of
State of its jurisdiction of organization and dated a recent date prior to the
Restatement Date or, if such document is of a type that may not be so
certified, certified by the secretary or similar officer of the applicable Loan
Party, together with a good standing certificate from the Secretary of State of
its jurisdiction of organization, each dated a recent date prior to the
Restatement Date;


(ii)                                  Resolutions
of the Governing Body of such Person approving and authorizing the execution,
delivery and performance of this Agreement, certified as of the Restatement
Date by the secretary or similar officer of such Person as being in full force
and effect without modification or amendment;


(iii)                               Signature
and incumbency certificates of the officers of such Person executing this
Agreement;


(iv)                              Executed
original counterparts to this Agreement; and


(v)                                 Such
other documents as Administrative Agent may reasonably request.


B.                                    Fees.  Company shall have paid to Administrative
Agent, for distribution (as appropriate) to Administrative Agent and Lenders,
the fees payable on the Restatement Date referred to in subsection 2.3.


C.                                    Representations and Warranties; Performance
of Agreements.  Company shall
have delivered to Administrative Agent an Officer’s Certificate, in form and
substance reasonably satisfactory to Administrative Agent, to the effect that
the representations and warranties in Section 5 are true, correct and complete
in all material respects on and as of the Restatement Date to the same extent
as though made on and as of that date (or, to the extent such representations
and warranties specifically relate to an earlier date, that such
representations and warranties were true, correct and complete in all material
respects on and as of such earlier date)



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and that Company shall
have performed in all material respects all agreements and satisfied all
conditions which the Loan Documents provide shall be performed or satisfied by
it on or before the Restatement Date except as otherwise disclosed to and
agreed to in writing by Administrative Agent; provided that, if a
representation and warranty, covenant or condition is qualified as to
materiality, with respect to such representation and warranty, covenant or
condition the applicable materiality qualifier set forth above shall be
disregarded for purposes of this condition.


D.                                    Opinions of Counsel to Loan Parties.  Lenders shall have received originally
executed copies of one or more favorable written opinions of Latham &
Watkins, LLP, counsel for Loan Parties, in form and substance reasonably
satisfactory to Administrative Agent and its counsel, addressed to
Administrative Agent and Lenders and dated as of the Restatement Date and
covering the enforceability of this Agreement (this Agreement constituting a
written request by Company to such counsel to deliver such opinions to
Lenders).


E.                                      No
Material Adverse Change. Since December 31, 2003, nothing shall have occurred
(and the Lenders shall have become aware of no facts or conditions not
previously known) which Administrative Agent determines could reasonably be
expected to have a Material Adverse Effect.


F.                                      Litigation.  No litigation by any entity (private or governmental)
shall be pending or, to the knowledge of Holdings, Company or their respective
Subsidiaries, threatened with respect to this Agreement, any other Loan
Document or any other documentation executed in connection herewith or with
respect to the transactions contemplated hereby, or which the Administrative
Agent shall determine could reasonably be expected to have a Material Adverse
Effect.


G.                                    Certificate
Regarding Financial Covenant.  On the
Restatement Date, Company shall have delivered to Administrative Agent an
Officer’s Certificate executed by the chief financial officer of the Company
certifying that the Applicable Consolidated Leverage Ratio is not greater than
2.60:1.00 as of the Restatement Date, together with calculations demonstrating
the foregoing in form and substance reasonably satisfactory to Administrative
Agent.


H.                                    Completion of Proceedings.  All 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, acting on behalf of Lenders, and its counsel shall be reasonably
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.



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4.2                               Conditions to All Loans.


The obligation of each
Lender to make Loans on each Funding Date are subject to the following further
conditions precedent:


A.                                    Administrative
Agent shall have received before that Funding Date, in accordance with the
provisions of subsection 2.1B, a duly executed Notice of Borrowing, in each
case signed by a duly authorized Officer of Company.


B.                                    As
of that Funding Date:


(i)                                     The
representations and warranties contained herein and in the other Loan Documents
shall be true, correct and complete in all material respects on and as of that
Funding 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, correct and complete in all material respects on and as of such earlier
date; provided, that, if a representation and warranty, covenant or
condition is qualified as to materiality, with respect to such representation
and warranty, covenant or condition the applicable materiality qualifier set
forth above shall be disregarded for purposes of this condition;


(ii)                                  No
event shall have occurred and be continuing or would result from the
consummation of the borrowing contemplated by such Notice of Borrowing that
would constitute an Event of Default or a Potential Event of Default;


(iii)                               Each
Loan Party shall have performed in all material respects all agreements and
satisfied all conditions which this Agreement provides shall be performed or
satisfied by it on or before that Funding Date;


(iv)                              No
order, judgment or decree of any arbitrator or Government Authority shall
purport to enjoin or restrain such Lender from making the Loans to be made by
it on that Funding Date; and


(v)                                 After
giving effect to the Loans requested on such Funding Date, the Total
Utilization of Revolving Loan Commitments shall not exceed (1) the Revolving
Loans then in effect or (2) the Borrowing Base then in effect.


4.3                               Conditions to Letters of Credit.


The issuance of any
Letter of Credit hereunder (whether or not the applicable Issuing Lender is
obligated to issue such Letter of Credit) is subject to the following
conditions precedent:


A.                                    On
or before the date of issuance of the initial Letter of Credit pursuant to this
Agreement, the initial Loans shall have been made.


B.                                    On
or before the date of issuance of such Letter of Credit, Administrative Agent
shall have received, in accordance with the provisions of subsection 3.1B(i),
an originally



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executed Request for
Issuance (or a facsimile copy thereof) in each case signed by a duly authorized
Officer of Company, together with all other information specified in subsection
3.1B(i) and such other documents or information as the applicable Issuing
Lender may reasonably require in connection with the issuance of such Letter of
Credit.


C.                                    On
the date of issuance of such Letter of Credit, all conditions precedent
described in subsection 4.2B shall be satisfied to the same extent as if the
issuance of such Letter of Credit were the making of a Loan and the date of
issuance of such Letter of Credit were a Funding Date.


Section
5.                                          REPRESENTATIONS
AND WARRANTIES


In order to induce Lenders to enter into this
Agreement and to make the Loans, to induce Issuing Lenders to issue Letters of
Credit and to induce Revolving Lenders to purchase participations therein, each
of Company and Holdings represents and warrants to each Lender:


5.1                               Organization, Powers, Qualification, Good
Standing, Business and Subsidiaries.


A.                                    Organization and Powers.  Each of Holdings and its Subsidiaries is a
corporation, partnership or limited liability company duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization as specified in Schedule 5.1 annexed hereto.  Each of Holdings and its Subsidiaries 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 Loan Documents to which it is a party and to carry out the transactions
contemplated thereby.


B.                                    Qualification and Good Standing.  Each of Holdings and its Subsidiaries 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 reasonably be expected to result in a
Material Adverse Effect.


C.                                    Conduct of Business.  Holdings and its Subsidiaries are engaged
only in the businesses permitted to be engaged in pursuant to
subsection 7.9.


D.                                    Subsidiaries.  All of the Subsidiaries of Holdings and their
jurisdictions of organization are identified in Schedule 5.1
annexed hereto, as said Schedule 5.1 may be supplemented from time to
time pursuant to the provisions of subsection 6.1(xiii).  The Capital Stock of each of the Subsidiaries
of Holdings identified in Schedule 5.1 annexed hereto (as so
supplemented) is duly authorized, validly issued, fully paid and nonassessable
and none of such Capital Stock constitutes Margin Stock.  Each of the Subsidiaries of Holdings
identified in Schedule 5.1 annexed hereto (as so supplemented) is a
corporation, partnership or limited liability company duly organized, validly
existing and in good standing under the laws of its respective jurisdiction of
organization set forth therein, has all requisite power and authority to own
and operate its properties and to carry on its business as now conducted and as
proposed to be conducted, and 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, in each case



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except where failure to
be so qualified or in good standing or a lack of such power and authority has
not had and could not reasonably be expected to result in a Material Adverse
Effect.  Schedule 5.1 annexed
hereto (as so supplemented) correctly sets forth the ownership interest of
Holdings and each of its Subsidiaries in each of the Subsidiaries of Holdings
identified therein.


5.2                               Authorization of Borrowing, etc.


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


B.                                    No Conflict.  The execution, delivery and performance by
Loan Parties of the Loan Documents to which they are parties and the
consummation of the transactions contemplated by the Loan Documents do not and
will not (i) violate any provision of any law or any governmental rule or
regulation applicable to Holdings or any of its Subsidiaries, the
Organizational Documents of Holdings or any of its Subsidiaries or any order,
judgment or decree of any court or other Government Authority binding on
Holdings or any of its Subsidiaries, (ii) 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,
(iii) 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 Loan Documents in favor of the
Administrative Agent on behalf of Lenders), or (iv) require any approval
of stockholders 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 Restatement Date and disclosed
in writing to Lenders and except, in each case, to the extent such violation,
conflict, Lien or failure to obtain such approval or consent could not
reasonably be expected to result in a Material Adverse Effect.


C.                                    Governmental Consents.  The execution, delivery and performance by
Loan Parties of the Loan Documents to which they are parties and the
consummation of the transactions contemplated by the Loan Documents do not and
will not require any Governmental Authorization, except as have been obtained.


D.                                    Binding Obligation.  Each of the Loan Documents has been duly
executed and delivered by each Person that is a party thereto and is the
legally valid and binding obligation of such Person, enforceable against such
Loan 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.


E.                                      Valid
Issuance of Holdings Common Stock. 
The Holdings Common Stock sold before the Restatement Date was duly and
validly issued, fully paid and nonassessable. 
The issuance and sale of such Holdings Common Stock either (a) had been
registered or qualified under applicable federal and state securities laws or
(b) was exempt therefrom.



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5.3                               No
Material Adverse Change; No Restricted Junior Payments.


Since December 31, 2003, no event or change has
occurred that has resulted in or evidences, either in any case or in the
aggregate, a Material Adverse Effect. 
Neither Company nor any of its Subsidiaries has directly or indirectly
declared, ordered, paid or made, or set apart any sum or property for, any
Restricted Junior Payment or agreed to do so except as permitted by subsection
7.4.


5.4                               Title to Properties; Liens; Real Property;
Intellectual Property.


Company and all other Subsidiaries of Holdings have
(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), or (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 pursuant to
subsection 6.1, in each case except for assets disposed of since the date of
such financial statements in the ordinary course of business or as otherwise
permitted under subsection 7.6.  Except
as permitted by this Agreement, all such properties and assets are free and
clear of Liens.


5.5                               Litigation; Adverse Facts.


There are no Proceedings (whether or not purportedly
on behalf of Holdings, Company or any of its Subsidiaries) at law or in equity,
or before or by any court or other Government Authority (including any
Environmental Claims) that are pending or, to the knowledge of Company,
threatened against or affecting any Loan Party or any property of any Loan
Party and that, individually or in the aggregate, could reasonably be expected
to result in a Material Adverse Effect. 
Neither Holdings nor Company nor any of its Subsidiaries (i) is in
violation of any applicable laws (including Environmental Laws) that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect, or (ii) is subject to or in default with respect
to any final judgments, writs, injunctions, decrees, rules or regulations of
any court or other Government Authority that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect.


5.6                               Payment of Taxes.


Except to the extent permitted by subsection 6.3, all
material 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 that are due and payable
have been paid when due and payable (subject to valid extensions).  Company knows of no proposed tax assessment
against Holdings or any of its Subsidiaries that is not being actively
contested by Holdings or such Subsidiary in good faith and by appropriate
proceedings; provided that such reserves or other appropriate
provisions, if any, as shall be required in conformity with GAAP shall have
been made or provided therefor and in the case of a Lien with respect to any
portion of the Collateral, such contest proceedings operate to stay the sale of
any portion of the Collateral on account of such Lien.



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5.7                               Performance of Agreements; Material Contracts.


A.                                    Neither
Holdings nor Company nor any of its Subsidiaries is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any of its Contractual Obligations, and no condition
exists that, with the giving of notice or the lapse of time or both, would
constitute such a default, except where the consequences, direct or indirect,
of such default or defaults, if any, could not reasonably be expected to result
in a Material Adverse Effect.


B.                                    Neither
Holdings nor Company nor any of its Subsidiaries is a party to or is otherwise
subject to any charter or other internal restrictions which, individually or in
the aggregate, could reasonably be expected to result in a Material Adverse
Effect.


5.8                               Governmental Regulation.


Neither
Holdings nor Company nor any of its Subsidiaries is subject to regulation under
the Federal Power Act, the Interstate Commerce 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.


5.9                               Securities Activities.


A.                                    Neither
Holdings nor Company 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.


B.                                    Following
application of the proceeds of each Loan, not more than 25% of the value of the
assets (either of Company only or of Company and its Subsidiaries on a
consolidated basis) subject to the provisions of subsection 7.2 or 7.6 or
subject to any restriction contained in any agreement or instrument, between
Company and any Lender or any Affiliate of any Lender, relating to Indebtedness
and within the scope of subsection 8.2, will be Margin Stock.


5.10                        Employee Benefit Plans.


A.                                    Company,
each of its Subsidiaries and, solely for purposes of Section 4980B of the
Internal Revenue Code and Title IV of ERISA, each of their respective ERISA
Affiliates are in compliance with all applicable provisions and requirements of
ERISA or applicable Law 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, except as would not
reasonably be expected to cause a Material Adverse Effect.  Each Employee Benefit Plan that 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 would reasonably
be expected to cause such Employee Benefit Plan to lose its qualified status.



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B.                                    No
ERISA Event has occurred or is reasonably expected to occur which would result
in a liability in excess of $1,000,000 or is
reasonably likely to result in a Lien.


C.                                    Except
to the extent required under Section 4980B of the Internal Revenue Code or
otherwise required by law, no Employee Benefit Plan provides health or welfare
benefits (through the purchase of insurance or otherwise) for any retired or
former employee of Company, any of its Subsidiaries or any of their respective
ERISA Affiliates the liability for which would cause a Material Adverse Effect.


D.                                    As
of the most recent valuation date for any Pension Plan, the amount of unfunded
benefit liabilities (as defined in Section 4001(a)(18) of ERISA), individually
or in the aggregate for all Pension Plans (determined based on assumptions used
for purposes of GAAP) excluding for purposes of such computation any Pension
Plans with respect to which assets exceed benefit liabilities), does not exceed
an amount which, if payable, could reasonably be expected to result in a
Material Adverse Effect.


5.11                        Certain Fees.


No broker’s or finder’s fee or commission will be
payable with respect to this Agreement or any of the transactions contemplated
hereby, and Company hereby indemnifies Lenders against, and agrees that it will
hold Lenders 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.


5.12                        Environmental Protection.


Except for such
exceptions as individually or in the aggregate could not reasonably be expected
to have a Material Adverse Effect:


(i)                                     neither
Company 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 (a) any Environmental
Law, (b) any Environmental Claim, or (c) any Hazardous Materials Activity;


(ii)                                  neither
Company nor any of its Subsidiaries has received 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 Company’s knowledge, have been no conditions, occurrences, or
Hazardous Materials Activities that could reasonably be expected to form the
basis of an Environmental Claim against Company or any of its Subsidiaries; and


(iv)                              Company
and all other Subsidiaries of Holdings have been and are in compliance with all
current or reasonably foreseeable future requirements pursuant to or under
Environmental Laws, except where any non-compliance would not, individually or
in the aggregate, be reasonably expected to result in a Material Adverse
Effect.



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5.13                        Employee Matters.


There is no strike or work stoppage in existence or
threatened involving Company or any of its Subsidiaries that could reasonably
be expected to result in a Material Adverse Effect.


5.14                        Solvency.


Holdings and its Subsidiaries on a consolidated basis,
and Company and its Subsidiaries on a consolidated basis are and, upon the
incurrence of any Obligations on any date on which this representation is made,
will be, Solvent.


5.15                        Matters Relating to Collateral.


A.                                    Creation, Perfection and Priority of Liens.  The execution and delivery of the Collateral
Documents by Loan Parties, together with (i) the actions taken to date pursuant
to subsection 4.1 of the Original Credit Agreement, and subsections 6.8 and 6.9
thereof and hereof and (ii) the delivery to Administrative Agent of any Pledged
Collateral not delivered to Administrative Agent at the time of execution and
delivery of the applicable Collateral Document (all of which Pledged Collateral
has been so delivered) are effective to create in favor of Administrative
Agent, for the benefit of Lenders, as security for the Obligations, a valid
First Priority Lien on all of the Collateral (except as provided to the contrary
in the Security Agreement), and all filings and other actions necessary or
desirable to perfect and maintain the perfection and priority status of such
Liens have been duly made or taken and remain in full force and effect, other
than the filing of any UCC financing statements delivered to Administrative
Agent for filing (but not yet filed) and the periodic filing of UCC
continuation statements in respect of UCC financing statements filed by or on
behalf of Administrative Agent.


B.                                    Governmental Authorizations.  No authorization, approval or other action
by, and no notice to or filing with, any Government Authority is required for
either (i) the pledge or grant by any Loan Party of the Liens purported to
be created in favor of Administrative Agent pursuant to any of the Collateral
Documents or (ii) the exercise by Administrative Agent of any rights or
remedies in respect of any Collateral (whether specifically granted or created
pursuant to any of the Collateral Documents or created or provided for by applicable
law), except for filings or recordings contemplated by subsection 5.15A and
except as may be required, in connection with the disposition of any Pledged
Collateral, by laws generally affecting the offering and sale of securities.


C.                                    Absence of Third-Party Filings.  Except for filings perfecting Liens permitted
under subsection 7.2A and filings naming Administrative Agent as secured party,
in accordance with this Agreement and the other Loan Documents, (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 covering all or any part of
the IP Collateral is on file in any IP Filing Office.


D.                                    Margin Regulations.  The pledge of the Pledged Collateral pursuant
to the Collateral Documents does not violate Regulation T, U or X of the Board
of Governors of the Federal Reserve System.



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5.16                        Disclosure.


No representation or warranty of any Loan Party
contained in the Confidential Information Memorandum (as of the date such
Confidential Information Memorandum was delivered to Administrative Agent), in
any Loan Document or in any other document, certificate or written statement
furnished to Lenders by or on behalf of any Loan Party or any of its
Subsidiaries for use in connection with the transactions contemplated by this
Agreement contains any untrue statement of a material fact or omits to state a
material fact (known to Company, in the case of any document not furnished by
it) 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 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 are no facts known (or which should
upon the reasonable exercise of diligence be known) to Company (other than matters
of a general economic nature) that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect and that have not
been disclosed herein or in such other documents, certificates and statements
furnished to Lenders for use in connection with the transactions contemplated
hereby.


Section
6.              AFFIRMATIVE COVENANTS


Each of Holdings and Company covenants and agrees
that, so long as any of the Commitments hereunder shall remain in effect and
until payment in full of all of the Loans and other Obligations (other than
Unasserted Obligations) and the cancellation, expiration or cash
collateralization of all Letters of Credit, unless Requisite Lenders shall
otherwise give prior written consent, each of Holdings and Company shall
perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Section 6.


6.1                               Financial Statements and Other Reports.


Holdings will maintain, and cause each of its
Subsidiaries to maintain, a system of accounting established and administered
in accordance with sound business practices to permit preparation of financial
statements in conformity with GAAP. 
Company will deliver to Administrative Agent (and Lenders through
Administrative Agent):


(i)            Events of Default, etc.:  promptly upon any officer of Company
obtaining knowledge (a) of any condition or event that constitutes an Event of
Default or Potential Event of Default, or becoming aware that any Lender has
given any notice (other than to Administrative Agent) or taken any other action
with respect to a claimed Event of Default or Potential Event of Default,
(b) that any Person has given any notice to Company or any of its
Subsidiaries or taken any other action with respect to a claimed default or
event or condition of the type referred to in subsection 8.2, (c) of any
condition or event that would be required to be disclosed in a current report
filed by Company with the Securities and Exchange Commission on Form 8-K if
Company were required to file such reports under the Exchange Act, or (d) of
the occurrence of any event or change that



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has caused or
evidences, either in any case or in the aggregate, a Material Adverse Effect,
an Officer’s Certificate specifying the nature and period of existence of such
condition, event or change, or specifying the notice given or action taken by
any such Person and the nature of such claimed Event of Default, Potential
Event of Default, default, event or condition, and what action Company has
taken, is taking and proposes to take with respect thereto;


(ii)           Quarterly Financials:  as soon as available and in any event within
60 days after the end of each Fiscal Quarter, (a) the consolidated balance
sheet of Holdings and its Subsidiaries as at the end of such Fiscal Quarter and
the related consolidated statements of income, stockholders’ equity 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, to the extent prepared for such Fiscal Quarter, all in detail reasonably
satisfactory to Administrative Agent and certified by the chief financial
officer of Company that they fairly present, in all material respects, the
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 (b) a narrative report describing the operations 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; provided, however, that, so long as Holdings is required
to file reports under Section 13 of the Exchange Act, the requirements of this
paragraph shall be deemed satisfied (including the requirements to deliver
monthly financial statements) by the delivery of the quarterly financials of
Holdings on Form 10-Q for the relevant Fiscal Quarter, signed by the duly
authorized officer or officers of Holdings;


(iii)          Year-End Financials:  as soon as available and in any event within
120 days after the end of each Fiscal Year, (a) the consolidated balance
sheet of Holdings and its Subsidiaries as at the end of such Fiscal Year and
the related consolidated statements of income, stockholders’ 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 in reasonable detail and certified by
the chief financial officer of Company that they fairly present, in all
material respects, the 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, (b) a
narrative report describing the operations of Holdings and its Subsidiaries for
such Fiscal Year in a form reasonably satisfactory to Administrative Agent, and
(c) in the case of such consolidated financial statements, a report
thereon of Ernst & Young or other independent certified public accountants
of recognized national standing selected by Company and satisfactory to
Administrative Agent, which report shall be unqualified, shall express no
doubts, assumptions or qualifications concerning the ability of Holdings and
its Subsidiaries to continue as a going concern, 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



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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; provided, however,
that, so long as Holdings is required to file reports under Section 13 of the
Exchange Act, the requirements of this paragraph shall be deemed satisfied by
the delivery of, the year-end financials of Holdings on Form 10-K for such
Fiscal Year, signed by the duly authorized officer or officers of Holdings;


(iv)          Pricing and Compliance Certificates:  together with each delivery of financial
statements pursuant to subdivisions (ii) and (iii) above, (a) an Officer’s
Certificate of Company stating that the signers have reviewed the terms of this
Agreement and have made, or caused to be made under their supervision, a review
in reasonable detail of the transactions and condition of Holdings and its
Subsidiaries during the accounting period covered by such financial statements
and that such review has not disclosed the existence during or at the end of
such accounting period, and that the signers do not have knowledge of the
existence as at the date of such Officer’s Certificate, of any condition or
event that constitutes an Event of Default or Potential Event of Default, or,
if any such condition or event existed or exists, specifying the nature and
period of existence thereof and what action Company has taken, is taking and
proposes to take with respect thereto; (b) a Compliance Certificate
demonstrating in reasonable detail compliance during and at the end of the
applicable accounting periods with the restrictions contained in
subsection 7.5, in each case to the extent compliance with such
restrictions is required to be tested at the end of the applicable accounting
period; in addition, on or before the 45th day following the end of each Fiscal
Quarter, a Pricing Certificate demonstrating in reasonable detail the
calculation of the Consolidated Leverage Ratio as of the end of the four-Fiscal
Quarter period then ended;


(v)           Reconciliation Statements:  if, as a result of any change in accounting
principles or any material change in accounting policies from those used in the
preparation of the audited financial statements of Company and its Subsidiaries
for Fiscal Year 2005, the consolidated financial statements of Holdings and its
Subsidiaries delivered pursuant to subdivisions (ii), (iii) or (xii) of this
subsection 6.1 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 or any material change
in accounting policies been made, then (a) together with the first
delivery of financial statements pursuant to subdivision (ii), (iii) or (xii)
of this subsection 6.1 following such change, consolidated financial statements
of Holdings and its Subsidiaries for (y) the current Fiscal Year to the
effective date of such change and (z) the two full Fiscal Years
immediately preceding the Fiscal Year in which such change is made, in each
case prepared on a pro forma
basis as if such change had been in effect during such periods, and
(b) together with each delivery of financial statements pursuant to
subdivision (ii), (iv) or (xii) of this subsection 6.1 following such
change, if required pursuant to subsection 1.2, a written statement of the
chief accounting officer or chief financial officer of Company setting forth
the differences (including any differences that would affect any calculations
relating to the financial covenants set forth in subsection



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7.5) which would
have resulted if such financial statements had been prepared without giving
effect to such change;


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


(vii)         SEC Filings and Press Releases:  promptly upon their becoming available,
copies of (a) all financial statements, reports, notices and proxy
statements sent or made available generally by Holdings or Company to its
security holders or by any Subsidiary of Company to its security holders other
than Holdings, Company or another Subsidiary of Company, (b) all regular
and periodic reports and all registration statements (other than on Form S-8 or
a similar form) and prospectuses, if any, filed by Holdings or Company or any
of its Subsidiaries with any securities exchange or with the Securities and
Exchange Commission or any governmental or private regulatory authority, and
(c) all press releases and other statements made available generally by Company
or any of its Subsidiaries to the public concerning material developments in
the business of Holdings or Company or any of its Subsidiaries;


(viii)        Litigation or Other Proceedings:  (a) promptly upon any Officer of Company
obtaining knowledge of (1) the institution of, or non-frivolous threat of, any
Proceeding against or affecting Holdings, Company or any of their Subsidiaries
or any property of Holdings, Company or any of their Subsidiaries not
previously disclosed in writing by Company to Lenders or (2) any material
development in any Proceeding that, in any case:


(x)            if adversely determined, has a
reasonable possibility of giving rise to a Material Adverse Effect; or


(y)           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 Company to enable Lenders and
their counsel to evaluate such matters; and (b) within twenty days after
the end of each Fiscal Quarter, a schedule of all Proceedings involving an
alleged liability of, or claims against or affecting, Holdings, Company or any
of their Subsidiaries equal to or greater than $500,000, and promptly after
request by Administrative Agent such other information as may be reasonably
requested by Administrative Agent to enable Administrative Agent and its
counsel to evaluate any of such Proceedings;


(ix)           ERISA Events:  promptly upon becoming aware of the
occurrence or forthcoming occurrence of any ERISA Event, a written notice
specifying the nature



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thereof, what
action Company, any of its Subsidiaries or any of their then-existing 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;


(x)            ERISA Notices:  with reasonable promptness, copies of (a) all
notices received by Company, any of its Subsidiaries or any of their
then-existing ERISA Affiliates from a Multiemployer Plan sponsor concerning an
ERISA Event; and (b) copies of such other documents or governmental reports or
filings relating to any Employee Benefit Plan as Administrative Agent shall
reasonably request;


(xi)           Insurance:  together with the financial statements
delivered pursuant to clause (iii) above, a certificate in form and substance
reasonably satisfactory to Administrative Agent (which shall be from an
insurance broker and consistent with past practices) outlining all material
insurance coverage maintained as of the date of such certificate by Company and
all other Subsidiaries of Holdings and all material insurance coverage planned
to be maintained by Company and all other Subsidiaries of Holdings in the
immediately succeeding Fiscal Year and confirming the status of Administrative
Agent as additional insured and/or loss payee under all such insurance to the
extent required by subsection 6.4;


(xii)          Governing Body:  with reasonable promptness, written notice of
any change in the Governing Body of Holdings or Company;


(xiii)         New Subsidiaries:  promptly upon any Person becoming a
Subsidiary of Holdings, a written notice setting forth with respect to such
Person (a) the date on which such Person became a Subsidiary of Holdings and
(b) all of the data required to be set forth in Schedule 5.1 annexed
hereto with respect to all Subsidiaries of Holdings (it being understood that
such written notice shall be deemed to supplement Schedule 5.1 annexed
hereto for all purposes of this Agreement);


(xiv)        Material Contracts:  promptly, and in any event within ten
Business Days after any Material Contract of Company or any of its Subsidiaries
is terminated or amended in a manner that is materially adverse to Company or
such Subsidiary, as the case may be, or any new Material Contract is entered
into, a written statement describing such event with copies of such material
amendments or new contracts, and an explanation of any actions being taken with
respect thereto;


(xv)         Environmental Audits and Reports:  as soon as practicable following receipt
thereof, copies of all significant non-privileged environmental audits and
reports, whether prepared by personnel of Holdings, Company or any of their
Subsidiaries or by independent consultants, with respect to significant
environmental matters at any Facility or which relate to an Environmental Claim
in either case which could reasonably be expected to result in a Material
Adverse Effect; and



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(xvi)        Other Information:  with reasonable promptness, such other
information and data with respect to Holdings, Company or any of their
Subsidiaries as from time to time may be reasonably requested by any Lender.


6.2                               Existence, etc.


Except as permitted under subsection 7.6, each of
Holdings and Company will, and will cause each of its Subsidiaries to, at all
times preserve and keep in full force and effect its existence in the
jurisdiction of organization specified on Schedule 5.1 and all rights
and franchises material to its business; provided, however that
none of the Subsidiaries of Holdings shall be required to preserve any such
right or franchise if the Governing Body of such Subsidiary shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of such Subsidiary, as the case may be, and that the loss thereof is
not disadvantageous in any material respect such Subsidiary or Lenders.


6.3                               Payment
of Taxes and Claims; Tax.


A.            Each of Holdings
and Company will, and will cause each of its Subsidiaries to, pay all material
taxes, assessments and other governmental charges imposed upon it or any of its
properties or assets or in respect of any of its income, businesses or
franchises before any penalty accrues thereon, and all claims (including claims
for labor, services, materials and supplies) for sums that have become due and
payable and that by law have or may become a Lien upon any of its properties or
assets, prior to the time when any penalty or fine shall be incurred with
respect thereto; provided that no such tax, assessment, charge or claim
need be paid if it is being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted, so long as (i) such reserve or
other appropriate provision, if any, as shall be required in conformity with
GAAP shall have been made therefor and (ii) in the case of a Tax or claim,
which has or may become a Lien against any of the Collateral, such proceedings
conclusively operate to stay the sale of any portion of the Collateral to
satisfy such charge or claim.


B.            Neither Holdings
nor Company 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).


6.4                               Maintenance
of Properties; Insurance; Application of Net Insurance/ Condemnation Proceeds


A.            Maintenance of Properties.  Each of Holdings and Company 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 used or useful in the business of Holdings 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.


B.            Insurance. 
Company will 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 Holdings and its



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Subsidiaries as may
customarily be carried or maintained under similar circumstances by
corporations 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 corporations similarly situated in the industry.  Without limiting the generality of the
foregoing, Company will maintain or cause to be maintained (i) 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, (ii) 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 satisfactory to Administrative Agent in its commercially reasonable
judgment, and (iii) “key-man” life insurance with respect to Leslie A. Blodgett
on such terms and amounts as are consistent with such “key-man” life insurance
in effect as of the Restatement Date. Each such policy of insurance shall (a)
name Administrative Agent for the benefit of Lenders as an additional insured
thereunder as its interests may appear and (b) in the case of each business
interruption and casualty insurance policy, contain a lender (or, as the case
may be, mortgagee) loss payable clause or endorsement, reasonably satisfactory
in form and substance to Administrative Agent, that names Administrative Agent
for the benefit of Lenders as the lender (or, as the case may be, mortgagee)
loss payee thereunder for any covered loss in excess of $250,000 and provides
for at least 30 days prior written notice to Administrative Agent of any
modification or cancellation of such policy.


C.            Application of Net Insurance/Condemnation Proceeds.


(i)            Business Interruption Insurance.  Upon receipt by Holdings, Company or any of
their Subsidiaries of any business interruption insurance proceeds constituting
Net Insurance/Condemnation Proceeds, (a) so long as no Event of Default
under any of subsection 8.1, 8.6 or 8.7 shall have occurred and be continuing,
Company or such Subsidiary may retain and apply such Net Insurance/Condemnation
Proceeds for working capital purposes, and (b) if an Event of Default under any
of subsection 8.1, 8.6 or 8.7 shall have occurred and be continuing, Company
shall apply an amount equal to such Net Insurance/Condemnation Proceeds to
prepay the Loans (and/or the Revolving Loan Commitment Amount shall be reduced)
as provided in subsections 2.4B and 2.4D;


(ii)           Net Insurance/Condemnation
Proceeds Received by Administrative Agent or Loan Parties.  Upon receipt by (a) Administrative Agent or
(b) Holdings or any of its Subsidiaries of any Net Insurance/Condemnation
Proceeds (other than any business interruption insurance proceeds pursuant to
clause (i) above), in the case of clause (a), Company hereby authorizes
Administrative Agent to apply, and in the case of clause (b), Company shall
apply, an amount equal to such Net Insurance/Condemnation Proceeds, to prepay
the Loans and/or to reduce the Revolving Loan Commitment Amount as provided in
subsection 2.4B; provided, however, that if (1) no Event of
Default or Potential Event of Default shall have occurred and is continuing and
(2) the aggregate amount of



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such Net Insurance/Condemnation
Proceeds received during such Fiscal Year does not exceed $250,000, the Loans
shall not be required to be prepaid and the Commitment shall not be reduced by
such an amount; provided, further, that if (1) no Event of
Default or Potential Event of Default shall have occurred and is continuing and
(2) the aggregate amount of such Net Insurance/Condemnation Proceeds received
during such Fiscal Year exceeds $250,000, the Revolving Loans shall be prepaid
by such an amount but the Revolving Loan Commitment Amount shall not be reduced
(and any Net Insurance/Condemnation Proceeds in excess of the Revolving Loans
shall be delivered to Company), if Company delivers to Administrative Agent an
Officer’s Certificate setting forth (A) that portion of such Net
Insurance/Condemnation Proceeds (the “Proposed Insurance
Reinvestment Proceeds”) that Holdings or such Subsidiary intends to
use within 270 days of such date of receipt to pay or reimburse the costs of
repairing, restoring or replacing the assets in respect of which such Net
Insurance/Condemnation Proceeds were received and (B) the proposed use of the
Proposed Insurance Reinvestment Proceeds and such other information with
respect to such proposed use as Administrative Agent may reasonably request
(all of the foregoing, collectively, “Restoration and Repair”)
in respect of which such Proposed Insurance Reinvestment Proceeds were
received; provided, further, that at the end of such 270 day
period, (i) Company shall provide to Administrative Agent an Officer’s
Certificate, together with such evidentiary documentation as Administrative
Agent may request, setting forth the amount, if any, by which the Proposed
Reinsurance Reinvestment Proceeds exceeded the total costs of such Restoration
and Repair (such excess, the “Unused Insurance Proceeds
Amount”) and (ii) the Loans shall be repaid and/or the Revolving
Loan Commitment Amount shall be permanently reduced by an amount equal to any
Unused Insurance Proceeds Amount in accordance with subsection 2.4B(iv).


6.5                               Inspection Rights; Lender Meeting.


A.            Inspection Rights. 
Company shall, and shall cause each of the other Loan Parties to, permit
(i) any authorized representatives designated by Administrative Agent (which
may be accompanied by representatives of any Lender at such Lender’s expense)
to visit and inspect any of the properties of any Loan Party, to inspect, copy
and take extracts from its and their financial and accounting records at
Company’s expense, and to discuss its and their affairs, finances and accounts
with its and their officers and independent public accountants (provided that
Holdings or any of its Subsidiaries may, if it so chooses, be present at or
participate in any such discussion), and (ii) any authorized representatives
designated by Administrative Agent to conduct one audit or appraisal of all
Collateral of Loan Parties during each Fiscal Year ending after the Restatement
Date (exclusive of the audits and appraisals conducted by Administrative Agent
prior to the Restatement Date (collectively, the “Base Audit”))
or more frequently if reasonably requested by Administrative Agent and at
Administrative Agent’s expense, provided that after the occurrence and
during the continuance of an Event of Default Holdings shall, and shall cause
its Subsidiaries to permit such additional audits as Administrative Agent may
deem necessary or advisable, each such audit or appraisal to be substantially
similar in scope and substance to the Base Audit, and at Company’s expense, all
upon reasonable notice and at such reasonable times during normal business
hours and as often as may reasonably be requested.


B.            Lender Meeting. 
Without in any way limiting the foregoing, Company will, upon the
request of Administrative Agent or Requisite Lenders, participate in a meeting
of Administrative Agent and Lenders at least once during each Fiscal Year to be
held at Company’s



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principal 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.


6.6                               Compliance with Laws, etc.


Each of Holdings and Company shall comply, and shall
cause each of its Subsidiaries and all other Persons on or occupying any
Facilities to comply, with the requirements of all applicable laws, rules,
regulations and orders of any Government Authority (including all Environmental
Laws), noncompliance with which could reasonably be expected to result in,
individually or in the aggregate, a Material Adverse Effect.


6.7                               Environmental Matters.


A.            Environmental Disclosure.  Company will deliver to Administrative Agent
and Lenders:


(i)            Environmental Audits and Reports.  As soon as practicable following receipt
thereof, copies of all environmental audits, investigations, analyses and
reports of any kind or character, whether prepared by personnel of Holdings,
Company or any of their Subsidiaries or by independent consultants,
governmental authorities or any other Persons, with respect to significant
environmental matters at any Facility that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect or with
respect to any Environmental Claims that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect.


(ii)           Notice of Certain Releases,
Remedial Actions, Etc.  Promptly upon
the occurrence thereof, written notice describing in reasonable detail (a) any
Release required to be reported to any federal, state or local governmental or
regulatory agency under any applicable Environmental Laws, and (b) any
remedial action taken by Company or any other Person in response to
(1) any Hazardous Materials Activities the existence of which could
reasonably be expected to result in one or more Environmental Claims having,
individually or in the aggregate, a Material Adverse Effect, or (2) any
Environmental Claims that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect.


(iii)          Written Communications Regarding
Environmental Claims, Releases, Etc. 
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 with respect to (a) any Environmental Claims that, individually
or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect, (b) any Release required to be reported to any federal, state
or local governmental or regulatory agency, and (c) any request for
information from any governmental agency that suggests such agency is investigating
whether Holdings or any of its Subsidiaries may be potentially responsible for
any Hazardous Materials Activity.


(iv)          Notice of Certain Proposed Actions
Having Environmental Impact.  Prompt
written notice describing in reasonable detail (a) any proposed acquisition
of stock, assets, or property by Holdings or any of its Subsidiaries that could
reasonably be



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expected to (1)
expose Holdings or any of its Subsidiaries to, or result in, Environmental
Claims that could reasonably be expected to result in, individually or in the
aggregate, a Material Adverse Effect or (2) affect the ability of Holdings or
any of its Subsidiaries to maintain in full force and effect all material
Governmental Authorizations required under any Environmental Laws for their
respective operations and (b) any proposed action to be taken by Holdings
or any of its Subsidiaries to commence manufacturing or other industrial
operations or to modify current operations in a manner that could reasonably be
expected to subject Holdings or any of its Subsidiaries to any material
additional obligations or requirements under any Environmental Laws that could
reasonably be expected to result in, individually or in the aggregate, a
Material Adverse Effect.


B.            Company’s Actions Regarding Hazardous Materials
Activities, Environmental Claims and Violations of Environmental Laws.


(i)            Remedial Actions Relating to
Hazardous Materials Activities.  Each
of  Holdings and Company shall, in
compliance with all applicable Environmental Laws, promptly undertake, and
shall cause each of its Subsidiaries promptly to undertake, any and all
investigations, studies, sampling, testing, abatement, cleanup, removal,
remediation or other response actions necessary to remove, remediate, clean up
or abate any Hazardous Materials Activity on, under or about any Facility that
is in violation of any Environmental Laws or that presents a material risk of
giving rise to an Environmental Claim.


(ii)           Actions with Respect to
Environmental Claims and Violations of Environmental Laws.  Each of Holdings and Company shall promptly
take, and shall cause each of its Subsidiaries promptly to take, any and all
actions necessary to (i) cure any material violation of applicable
Environmental Laws by Company or its Subsidiaries that could reasonably be
expected to result in, individually or in the aggregate, a Material Adverse
Effect and (ii) make an appropriate response to any Environmental Claim against
Company or any of its Subsidiaries and discharge any obligations it may have to
any Person thereunder where failure to do so could reasonably be expected to
result in, individually or in the aggregate, a Material Adverse Effect.


6.8                               Execution of Subsidiary Guaranty and Personal
Property Collateral Documents After the Restatement Date.


A.            Execution of Subsidiary Guaranty and
Personal Property Collateral Documents.  In the event that any Person becomes a
Domestic Subsidiary of Company after the date hereof, Company will promptly
notify Administrative Agent of that fact and cause such Domestic Subsidiary to
execute and deliver to Administrative Agent a counterpart of the Subsidiary
Guaranty and Security Agreement and to take all such further actions and
execute all such further documents and instruments (including delivery of stock
certificates and powers, lien search results, UCC financing and termination
statements, cover sheets with respect to IP Collateral, Foreign Pledge
Agreements and legal opinions with respect thereto) as may be necessary or, in
the opinion of Administrative Agent, desirable to create in favor of
Administrative Agent, for the benefit of Lenders, a valid and perfected First
Priority Lien on all of the personal and mixed property assets of such Domestic
Subsidiary except as provided to the



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contrary in the
Collateral Documents.  In addition, as
provided in the Security Agreement, Company shall, or shall cause the
Subsidiary that owns the Capital Stock of such Person, to execute and deliver
to Administrative Agent a supplement to the Security Agreement and to deliver
to Administrative Agent all certificates representing such Capital Stock of
such Person (accompanied by irrevocable undated stock powers, duly endorsed in
blank).


B.            Foreign Subsidiaries. 
In the event that any Person becomes a Foreign Subsidiary of Company or
Holdings after the date hereof, Company will promptly notify Administrative
Agent of that fact and, if such Subsidiary is directly owned by Holdings,
Company or a Domestic Subsidiary, cause such Subsidiary to execute and deliver
to Administrative Agent such documents and instruments and take such further
actions as may be necessary, or in the reasonable opinion of Administrative
Agent, desirable to create in favor of Administrative Agent, for the benefit of
the Lenders, a valid and perfected First Priority Lien on 66% of the Capital
Stock of such first tier Foreign Subsidiary.


C.            Subsidiary Organizational Documents, Legal Opinions, Etc.  Company shall deliver to Administrative
Agent, together with such Loan Documents, (i) certified copies of such
Subsidiary’s Organizational Documents, together with, if such Subsidiary is a
Domestic Subsidiary, a good standing certificate from the Secretary of State of
the jurisdiction of its organization and each other state in which such Person
is qualified to do business and, to the extent generally available, a
certificate or other evidence of good standing as to payment of any applicable
franchise or similar taxes from the appropriate taxing authority of each of
such jurisdictions, each to be dated a recent date prior to their delivery to
Administrative Agent, (ii) a certificate executed by the secretary or
similar officer of such Subsidiary as to (a) the fact that the attached
resolutions of the Governing Body of such Subsidiary approving and authorizing
the execution, delivery and performance of such Loan Documents are in full
force and effect and have not been modified or amended and (b) the
incumbency and signatures of the officers of such Subsidiary executing such
Loan Documents, (iii) an executed supplement to the Security Agreement evidencing the pledge of the Capital Stock
of such Subsidiary by Holdings, Company or a Subsidiary of Company that owns
such Capital Stock, accompanied by all certificates evidencing such Capital
Stock, together with an irrevocable undated stock powers duly endorsed in blank
and satisfactory in form and substance to Administrative Agent, and (iv) a
favorable opinion of counsel to such Subsidiary, in form and substance
satisfactory to Administrative Agent and its counsel, as to (a) the due
organization and good standing of such Subsidiary, (b) the due
authorization, execution and delivery by such Subsidiary of such Loan
Documents, (c) the enforceability of such Loan Documents against such
Subsidiary and (d) such other matters (including matters relating to the
creation and perfection of Liens in any Collateral pursuant to such Loan
Documents) as Administrative Agent may reasonably request, all of the foregoing
to be satisfactory in form and substance to Administrative Agent and its
counsel.


6.9                               Matters Relating to Additional Real Property
Collateral.


A.            Additional Mortgages, Etc.  From and after the Original Closing Date, in
the event that (i) Company or any Subsidiary Guarantor acquires any fee
interest in real property or (ii) at the time any Person becomes a Subsidiary
Guarantor, such Person owns or holds any fee interest in real property, (a) in
each case, reasonably determined by Administrative Agent to be of material
value as Collateral or of a material importance to the operations of Company
and



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its Subsidiaries, and (b)
in the case of clause (ii), excluding any such Real Property Asset the
encumbrancing of which requires the consent of any then-existing senior
lienholder, where Company and its Subsidiaries have attempted in good faith,
but are unable, to obtain such or senior lienholder’s consent (any such
non-excluded Real Property Asset described in the foregoing clause (i) or (ii)
being an “Additional Mortgaged Property”),
Company or such Subsidiary Guarantor shall deliver to Administrative Agent, as
soon as practicable after such Person acquires such Additional Mortgaged
Property or becomes a Subsidiary Guarantor, as the case may be, the following:


(i)            Mortgages.  A fully executed and notarized Mortgage, in
proper form for recording in all appropriate places in all applicable
jurisdictions, encumbering the interest of such Loan Party in such Additional
Mortgaged Property;


(ii)           Opinions of Local Counsel.  An opinion of counsel (which counsel shall be
reasonably satisfactory to Administrative Agent) in the state in which such
Additional Mortgaged Property is located with respect to the enforceability of
the form(s) of the Mortgage to be recorded in such state and such other matters
as Administrative Agent may reasonably request, in each case in form and
substance reasonably satisfactory to Administrative Agent;


(iii)          Title Insurance.  With respect to any Additional Mortgaged
Property with a fair market value in excess of $5,000,000 (a) ALTA mortgagee
title insurance policies or unconditional commitments therefor issued by the
Title Company with respect to such Additional Mortgaged Property, in amounts
reasonably acceptable to Administrative Agent, insuring fee simple title to
each such Additional Mortgaged Property vested in such Loan Party and assuring
Administrative Agent that the Mortgage creates a valid and enforceable First
Priority mortgage Lien on the such Additional Mortgaged Property, subject only
to a standard survey exception, which policy (1) shall include an endorsement
for mechanics’ liens, for future advances under this Agreement and for any
other matters reasonably requested by Administrative Agent and (2) shall
provide for affirmative insurance and such reinsurance as Administrative Agent
may reasonably request, all of the foregoing in form and substance reasonably
satisfactory to Administrative Agent; and (b) evidence satisfactory to
Administrative Agent that such Loan Party has (i) delivered to the Title
Company all certificates and affidavits required by the Title Company in
connection with the issuance of such policy and (ii) paid to the Title Company
or to the appropriate Governmental Authorities all expenses and premiums of the
Title Company in connection with the issuance of such policy and all recording
and stamp taxes (including mortgage recording and intangible taxes) payable in
connection with recording the Mortgage in the appropriate real estate records;


(iv)          Copies of Documents Relating to
Title Exceptions.  Copies of all
recorded documents listed as exceptions to title or otherwise referred to in
the title policy delivered pursuant to the preceding clause (iii);


(v)           Matters Relating to Flood Hazard
Properties.  (a) Evidence, which may
be in the form of a letter from an insurance broker or a municipal engineer, as
to whether (1) any Additional Mortgaged Property is a Flood Hazard
Property and (2) the



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community in which
any such Flood Hazard Property is located is participating in the National
Flood Insurance Program, (b) if there are any such Flood Hazard Properties,
such Loan Party’s written acknowledgement of receipt of written notification
from Administrative Agent (1) as to the existence of each such Flood
Hazard Property and (2) as to whether the community in which each such
Flood Hazard Property is located is participating in the National Flood
Insurance Program, and (c) in the event any such Flood Hazard Property is
located in a community that participates in the National Flood Insurance
Program, evidence that Company has obtained flood insurance in respect of such
Flood Hazard Property to the extent required under the applicable regulations
of the Board of Governors of the Federal Reserve System;


(vi)          Environmental Indemnity.  If requested by Administrative Agent, an
environmental indemnity agreement, satisfactory in form and substance to
Administrative Agent and its counsel, with respect to the indemnification of
Administrative Agent and Lenders for any liabilities that may be imposed on or
incurred by any of them as a result of any Hazardous Materials Activity.


B.            Real Estate Appraisals. 
Company shall, and shall cause each of its Subsidiaries to, permit an
independent real estate appraiser satisfactory to Administrative Agent, upon
reasonable notice, to visit and inspect any Additional Mortgaged Property for
the purpose of preparing an appraisal of such Additional Mortgaged Property
satisfying the requirements of any applicable laws and regulations (in each
case to the extent required under such laws and regulations as determined by
Administrative Agent in its discretion).


6.10                        Interest Rate Protection.


At all times after October 2, 2007, Company shall
maintain in effect one or more Interest Rate Agreements in an aggregate
notional principal amount of not less than 40% of the aggregate principal
amount of the Term Loans outstanding, each such Interest Rate Agreement to be
in form and substance satisfactory to Administrative Agent; provided that
Company shall not be obligated to maintain in effect any such Interest Rate
Agreements at any time that the Applicable Consolidated Leverage Ratio is less
than or equal to 3.00:1:00.  For purposes
of clarification, while the above described Interest Rate Agreements are
required to be maintained during the above described periods, each individual
Interest Rate Agreement is not required to be of such duration.


6.11                        Deposit Accounts, Securities Accounts and
Cash Management Systems.


Company
shall not permit any of its or its Subsidiaries’ Deposit Accounts and
Securities Accounts at any time to have a principal balance in excess of $250,000 unless Company or such
Subsidiary, as the case may be, has (i) executed and delivered to
Administrative Agent a Control Agreement, and (ii) taken all other steps
necessary or, in the opinion of Administrative Agent, desirable to ensure that
Administrative Agent has a perfected security interest in such account,
including without limitation, an opinion of counsel reasonably requested by
Administrative Agent; provided that, 
if Company or such Subsidiary is unable to obtain a Control Agreement
from the financial institution at which the Deposit Account or Securities
Account is maintained, Company shall, or shall cause such Subsidiary to
transfer all



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amounts in the
applicable Deposit Account to a Deposit Account maintained at a financial
institution from which Company or such Subsidiary has obtained a Control
Agreement.  Company shall not permit the
aggregate principal balance of all Deposit Accounts and Securities Accounts of
Company and of its Subsidiaries (other than Deposit Accounts and Securities
Accounts subject to a Control Agreement) at any time to exceed $1,000,000.


Section
7.              NEGATIVE COVENANTS


Each of Holdings and Company covenants and agrees
that, so long as any of the Commitments hereunder shall remain in effect and
until payment in full of all of the Loans and other Obligations (other than
Unasserted Obligations) and the cancellation, expiration or cash
collateralization of all Letters of Credit, unless Requisite Lenders shall
otherwise give prior written consent, each of Holdings and Company shall perform,
and shall cause each of its Subsidiaries to perform, all covenants in this
Section 7.


7.1                               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 for the following:


(i)            Company may become and remain liable
with respect to the Obligations;


(ii)           Company and its Subsidiaries may
become and remain liable with respect to Contingent Obligations and, upon any
matured obligations actually arising pursuant thereto, the Indebtedness
corresponding to the Contingent Obligations so extinguished;


(iii)          any Subsidiary of Holdings may become
and remain liable with respect to Indebtedness in respect of Capital Leases or
to finance the purchase price of equipment, fixtures, inventory and other
similar property of the Subsidiaries of Holdings aggregating not in excess of
$8,000,000 in Fiscal Year 2006, $12,000,000 in Fiscal Year 2007, $16,000,000 in
Fiscal Year 2008 and $20,000,000 in Fiscal Year 2009 and thereafter;


(iv)          Company may become and remain liable
with respect to Indebtedness to any Subsidiary, and any Subsidiary may become
and remain liable with respect to Indebtedness to Company or any other
Subsidiary; provided that (a) a Lien on all such intercompany
Indebtedness shall have been granted to Administrative Agent for the benefit of
Lenders, (b) if such intercompany Indebtedness is evidenced by a promissory note
or other instrument, such promissory note or other instrument shall have been
pledged to Administrative Agent pursuant to the Security Agreement and (c) if
Company or any Subsidiary Guarantor becomes liable with respect to Indebtedness
to any Subsidiary which is not a Subsidiary Guarantor, such Indebtedness shall
be subordinated in right of payment to the Obligations in a manner and to an
extent reasonably satisfactory to Administrative Agent;


(v)           Company and its Subsidiaries, as
applicable, may remain liable with respect to Indebtedness described in Schedule 7.1
annexed hereto, including any refinancings, refundings, renewals or extensions
thereof (without any increase in the



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principal amount
thereof or any shortening of the maturity of any principal amount thereof);


(vi)          Foreign Subsidiaries may become and
remain liable with respect to Indebtedness to Holdings or any of its
Subsidiaries;


(vii)         Foreign Subsidiaries may become and
remain liable with respect to additional Indebtedness to finance working capital
and otherwise in an aggregate principal amount not to exceed $15,000,000 at any
time outstanding;


(viii)        Holdings may remain liable with respect
to any promissory note issued in exchange for Holdings Capital Stock in
transactions otherwise permitted by subsection 7.4(v); provided that
such promissory notes shall be subordinated to the Obligations on terms
reasonably satisfactory to Administrative Agent; and


(ix)           Company and its Domestic Subsidiaries
may become and remain liable with respect to Indebtedness not exceeding
$20,000,000.


7.2                               Liens
and Related Matters.


A.            Prohibition on 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 or any of its Subsidiaries, whether now owned or
hereafter acquired, or any income or profits therefrom, or file or permit the
filing of, or permit to remain in effect, any financing statement or other
similar notice of any Lien with respect to any such property, asset, income or
profits under the UCC or under any similar recording or notice statute, except:


(i)            Permitted Encumbrances;


(ii)           Liens described in Schedule 7.2
annexed hereto;


(iii)          Liens securing Indebtedness incurred
pursuant to subsection 7.1(iii); provided that such Liens shall not in
the aggregate secure Indebtedness in excess of $8,000,000 in Fiscal Year 2006,
$12,000,000 in Fiscal Year 2007, $16,000,000 in Fiscal Year 2008 and
$20,000,000 in Fiscal Year 2009 and thereafter; and


(iv)          Other Liens in an aggregate amount not
to exceed $100,000 at any time outstanding.


Notwithstanding the foregoing, Holdings and its
Subsidiaries shall not enter into, or suffer to exist, any control agreements
(as such term is defined in the UCC), other than Control Agreements entered
into pursuant to subsection 6.11 or the Security Agreement.


B.            Equitable Lien in Favor of Lenders.  If Holdings or any of its Subsidiaries shall
create or assume any Lien upon any of its properties or assets, whether now
owned or hereafter acquired, other than Liens excepted by the provisions of
subsection 7.2A, it



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shall make or cause to be
made effective provision whereby the Obligations will be secured by such Lien
equally and ratably with any and all other Indebtedness secured thereby as long
as any such Indebtedness shall be so secured; provided that,
notwithstanding the foregoing, this covenant shall not be construed as a
consent by Requisite Lenders to the creation or assumption of any such Lien not
permitted by the provisions of subsection 7.2A.


C.            No Further Negative Pledges.  Neither Holdings nor any of its Subsidiaries
shall enter into any agreement (other than the Loan Documents) prohibiting the
creation or assumption of any Lien upon any of its properties or assets,
whether now owned or hereafter acquired, except with respect to (i)
restrictions by reason of customary provisions restricting assignment,
subletting or other transfers contained in leases, licenses and similar
agreements entered into in the ordinary course of business (provided
that such restrictions are limited to the property or assets secured by such
Liens or the property or assets subject to such leases, licenses or similar
agreements, as the case may be), (ii) purchase money Indebtedness and Capital
Leases permitted to be incurred under this subsection, Permitted Encumbrances described in
clause (iii) of such defined term or Liens permitted under subsection 7.2A(ii) and
restrictions in the agreements relating thereto that limit the right of the
Company to dispose of or transfer the assets subject to such Liens, (iii)
restrictions imposed by customary provisions in partnership agreements, limited
liability company organizational governance documents, joint venture agreements
and other similar agreements that restrict the transfer of ownership interests
in such partnership, limited liability company, joint venture or similar
Person, (iv) 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 and other permitted sales of assets, (v) restrictions
contained in agreements with respect to Indebtedness incurred by any Foreign
Subsidiary in accordance with this Agreement; provided that such
restrictions are limited to the property or assets of such Foreign Subsidiary,
and (vi) provisions limiting the disposition or distribution of assets or
property in joint venture agreements, sale-leaseback agreements, stock sale
agreements and other similar agreements, which limitation is applicable only to
the assets that are the subject of such agreements.


D.            No Restrictions on Subsidiary Distributions to Company or Other
Subsidiaries.  Except
as provided in the Loan Documents, each of Holdings and Company will not, and
will not permit any of its Subsidiaries to, create or otherwise cause or suffer
to exist or become effective any consensual encumbrance or restriction of any
kind on the ability of any such Subsidiary to (i) pay dividends or make any
other distributions on any of such Subsidiary’s Capital Stock owned by Holdings
or any other Subsidiary of Holdings, (ii) repay or prepay any Indebtedness
owed by such Subsidiary to Holdings or any other Subsidiary of Holdings, (iii)
make loans or advances to Holdings or any other Subsidiary of Holdings, or
(iv) transfer any of its property or assets to Holdings or any other
Subsidiary of Holdings, in each case such dividends, distributions, repayments,
loans or transfers to Holdings are subject to the limitations set forth in
subsection 7.4 hereof and except (a) as provided
in this Agreement, (b) as may be provided in an agreement with respect to a
permitted Asset Sale and other permitted sales of assets, (c) 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 (provided that such
restrictions are limited to the property or assets subject to such leases,
licenses, joint venture agreements or similar agreements, as the case may be),
(d) that are or were created by virtue of any transfer of, agreement to
transfer or option or



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right with respect to any property,
assets or Capital Stock not otherwise prohibited under this Agreement, (e) in
any instrument governing Indebtedness or Capital Stock of a Person acquired by Holdings or any of
its Subsidiaries as in effect at the time of such acquisition (except to the
extent such Indebtedness or Capital Stock was incurred in connection with or in
contemplation of such acquisition), which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other than
the Person, or the property or assets of the Person, so acquired; provided
that, in the case of Indebtedness, such Indebtedness was permitted by
subsection 7.1 to be incurred, (f) in any agreement for the sale or other
disposition of a Subsidiary that restricts distributions by that Subsidiary
pending the sale or other disposition, (g) restrictions on the disposal
of or transfer of assets subject to Liens relating to purchase money
Indebtedness and Capital Leases and (h) in provisions in agreements or instruments which
prohibit the payment of dividends or the making of other distributions with
respect to any class of Capital Stock of a Person other than on a pro rata
basis.


7.3                               Investments;
Acquisitions.


Holdings shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, make or own any Investment in any
Person, including any Joint Venture, or acquire, by purchase or otherwise, all
or substantially all the business, property or fixed assets of, or Capital
Stock or other ownership interest of any Person, or any division or line of
business of any Person except:


(i)            Company and any other Subsidiary of
Holdings may make and own Investments in Cash Equivalents;


(ii)           Company and Subsidiary Guarantors may
make and own equity Investments in other Subsidiary Guarantors and Holdings may
own the Investments owned by it in Company and any Foreign Subsidiary permitted
hereunder;


(iii)          Company and any other Subsidiary of
Holdings may make intercompany loans to the extent permitted under subsection
7.1(iv);


(iv)          Company and any other Subsidiary of
Holdings may make Consolidated Capital Expenditures;


(v)           Company and any other Subsidiary of
Holdings may continue to own the Investments owned by them and described in Schedule 7.3
annexed hereto;


(vi)          Holdings, Company or any Subsidiary of
Holdings may make loans to their respective employees for the purchase of
shares of the Capital Stock of Holdings; provided that the aggregate
principal amount of all such loans at any time outstanding does not exceed
$10,000,000 during the term of the Agreement; and such Person pledges any notes
evidencing such loans to Administrative Agent for the benefit of Lenders
pursuant to the Security Agreement, and that the proceeds of the sale of such
Capital Stock are promptly contributed by Holdings to Company;



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(vii)                           Company and any other
Subsidiary of Holdings may acquire Securities in connection with the
satisfaction or enforcement of Indebtedness or claims due or owing to such
Subsidiary or as security for any such Indebtedness or claim;


(viii)                         Company and any other
Subsidiary of Holdings may receive Investments in connection with permitted
Asset Sales pursuant to subsection 7.6(iii) and other permitted sales of assets
under subsection 7.6(v); provided that all such Investments are pledged to
Administrative Agent for the benefit of Lenders pursuant to the Security
Agreement;


(ix)                                Holdings
may repurchase shares of Holdings Capital Stock (or any options or rights to
acquire such Capital Stock) from any former or current employee of Holdings or
its Subsidiaries to the extent permitted under subsection 7.4;


(x)                                   Company
and any other Subsidiary of Holdings may acquire assets (including Capital
Stock and including Capital Stock of Subsidiaries formed in connection with any
such acquisition) (in each case, a “Permitted Acquisition”)
and continue to own such assets after the acquisition thereof; provided
that (i) the aggregate amount of Cash consideration paid by Company and any
other Subsidiary of Holdings for Permitted Acquisitions shall not exceed
$10,000,000 in any one Fiscal Year or $30,000,000 in the aggregate, and (ii)
the aggregate amount of consideration consisting of equity Securities paid by
Company and any other Subsidiary of Holdings for Permitted Acquisitions shall
not exceed $10,000,000; and provided  further that (i) Holdings
and Company shall, and shall cause its Subsidiaries to, comply with the
requirements of subsections 6.8 and 6.9 with respect to each such acquisition
that results in a Person becoming a Subsidiary, (ii) Company shall have
delivered a disclosure statement updating each of the Schedules to this
Agreement and the other Loan Documents to reflect any factual revisions or
modifications to the information set forth therein resulting from such
acquisition; provided that any such update which alters the substantive
effect of any representation or warranty, covenant or any other term or
condition of this Agreement or any other Loan Document or which discloses an
event or circumstance that, in any case, would otherwise require the consent of
Administrative Agent, Requisite Lenders or Lenders to such modification, event
or circumstance, shall not constitute a modification of this Agreement or any
other Loan Document or a permitted disclosure hereunder or thereunder, and
shall not excuse any Event of Default or Potential Event of Default which may
otherwise arise in connection therewith, without written consent required
hereunder of Administrative Agent, Requisite Lenders or Lenders, as the case
may be; (iii) after giving effect to such acquisition, the Subsidiaries of
Holdings (1) shall not be engaged in any business not permitted by subsection
7.9, (2) shall be in compliance on a pro forma basis after giving effect to
such acquisition with each of the financial covenants contained in subsection
7.5, (3) no Event of Default or Potential Event of Default shall have occurred
and be continuing or would result from such acquisition, (4) the
representations and warranties in Section 5 hereof  (as supplemented in accordance with (ii)
above) shall be true, correct and



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complete in all material respects on and as of the Permitted
Acquisition closing date to the same extent as though made on and as of that
date (or, to the extent such representations and warranties specifically relate
to an earlier date, such representations and warranties shall have been true,
correct and complete in all material respects on and as of such earlier date),
and (5) Company shall have delivered to Administrative Agent and the Lenders an
Officer’s Certificate to the effect set forth in the foregoing clauses (1)
through (4) and a Compliance Certificate to evidence clause (2); and (iv) on or
before the Permitted Acquisition closing date, Lenders shall have received from
Company such other documents and information (including financial information)
in respect of such Permitted Acquisition as any Lender may (through
Administrative Agent) reasonably request;


(xi)                                Company
and any other Subsidiary of Holdings may make and own Investments deemed to
arise out of guaranties which are otherwise permitted by this Agreement;


(xii)                             Holdings, Company and the
Subsidiary Guarantors may make and own Investments in Foreign Subsidiaries,
provided that the amount of all such Investments made from and after the
Restatement Date minus the amount of all cash dividends, distributions and
other payments received by Holdings, Company or any of the Subsidiary
Guarantors in respect of such Investments after the Restatement Date shall not
at any time exceed $25,000,000;


(xiii)                          Foreign Subsidiaries may make
and own Investments in Holdings or any of its Subsidiaries; and


(xiv)                         Company and the Subsidiary
Guarantors may make and own other Investments in addition to the Investments
otherwise permitted in this subsection 7.3; provided that the aggregate
amount of such Investments does not exceed $2,000,000.


7.4                               Restricted Junior Payments.


Neither Company
nor Holdings shall, nor shall either permit any of its Subsidiaries to,
directly or indirectly, declare, order, pay, make or set apart any sum for any
Restricted Junior Payment; provided that (i) Company and any
Foreign Subsidiary of Holdings may make Restricted Junior Payments to Holdings
in an aggregate amount not to exceed $300,000 in any Fiscal Year, to the extent
necessary to permit Holdings to pay general administrative costs and expenses
(other than Management Fees), (ii) Company and any Foreign Subsidiary of
Holdings may make Restricted Junior Payments to Holdings to the extent
necessary to permit Holdings to discharge the consolidated tax liabilities of
Holdings and its Subsidiaries, in each case so long as Holdings applies the
amount of any such Restricted Junior Payment for such purpose, (iii) Company
may make Restricted Junior Payments to Holdings for the purpose of funding
Investment by Holdings in Foreign Subsidiaries of Holdings, so long as such
Investment by Holdings is promptly made and is permitted by subsection 7.3,
(iv) any Foreign Subsidiaries of Holdings may make Restricted Junior Payments
to Holdings provided that the proceeds thereof are promptly contributed by
Holdings to Company as common equity, (v) so long as no Event of Default or
Potential Event of Default shall have occurred and be continuing or shall be
caused thereby, Company may make Restricted Junior Payments to Holdings to the
extent necessary to permit Holdings to repurchase Holdings Capital Stock (or
any options rights to acquire such Capital Stock) from any former or current



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employee of Holdings or its Subsidiaries so long as the aggregate
amount of all such repurchases shall not exceed $5,000,000 in any Fiscal Year
and shall not exceed $10,000,000 in the aggregate, and Holdings may repurchase
such Capital Stock using the proceeds of such Restricted Junior Payments by
Company or, if such Restricted Junior Payments are not made by Company in sufficient
amounts to effect such repurchase, Holdings may issue promissory notes in
exchange for such Capital Stock and may subsequently redeem such promissory
notes, and (vi) so long as no Event of Default or Potential Event of Default
shall have occurred and be continuing or shall be caused thereby and the
Applicable Consolidated Leverage Ratio is 3.00:1.00 or less, Company may make
Restricted Junior Payments to Holdings to the extent necessary to permit
Holdings to make payments of Restricted Junior Payments from the portion
of Consolidated Excess Cash Flow not required to be applied to prepayment of
Loans pursuant to subsection 2.4B(iii)(d).


7.5                               Financial
Covenants.


Maximum
Leverage Ratio. 
Company shall not suffer or permit the Consolidated Leverage Ratio as of
the last day of any Fiscal Quarter ended on or after December 31, 2006 to
exceed 4.50:1.00.


7.6                               Restriction on Fundamental Changes; Asset
Sales.


Each of Holdings and
Company shall not, and shall not permit any of its Subsidiaries to, alter the
corporate, capital or legal structure of Company or any other Subsidiary of
Holdings, or 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),
transfer or otherwise dispose of, in one transaction or a series of
transactions, all or any part of its business, property or assets (including
its notes or receivables and Capital Stock of a Subsidiary, whether newly issued
or outstanding), whether now owned or hereafter acquired, except:


(i)                                     any
Subsidiary of Holdings (other than Company) may be merged with or into Company
or any Subsidiary Guarantor, 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 Subsidiary Guarantor; provided that, in
the case of such a merger, Company or such Subsidiary Guarantor shall be the
continuing or surviving Person;


(ii)                                  any
Foreign Subsidiary that is not a Subsidiary Guarantor may be merged with or
into any Subsidiary of Holdings or be liquidated, wound up or dissolved;


(iii)                               Company and any other
Subsidiary of Holdings may sell or otherwise dispose of assets in transactions
that do not constitute or are excluded from the definition of Asset Sales; provided
that the consideration received for such assets shall be in an amount at least
equal to the fair market value thereof;


(iv)                              Company
and any other Subsidiary of Holdings may dispose of obsolete, worn out or
surplus property in the ordinary course of business, including the



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abandonment of any trademarks, trade names or other intellectual
property no longer useful in the business of the Loan Parties;


(v)                                 Company
and any other Subsidiary of Holdings may make Asset Sales of assets having an
aggregate, cumulative fair market value not in excess of $800,000 per Fiscal Year; provided that (a) the
consideration received for such assets shall be in an amount at least equal to
the fair market value thereof; (b)  the
consideration received shall be at least 75% cash; and (c) the proceeds of
such Asset Sales shall be applied as required by subsection 2.4B(iii)(a)
or subsection 2.4D;


(vi)                              in
order to resolve disputes that occur in the ordinary course of business, the
Subsidiaries of Holdings may discount or otherwise compromise for less than the
face value thereof, notes or accounts receivable;


(vii)                           Company or any other
Subsidiary of Holdings may sell or dispose of shares of Capital Stock of any of
its Subsidiaries in order to qualify members of the Governing Body of the
Subsidiary if required by applicable law; and


(viii)                        any Person may be merged with
or into Company or any other Subsidiary of Holdings if the acquisition of the
Capital Stock of such Person by such Subsidiary would have been permitted
pursuant to subsection 7.3; provided that (a) in the case of Company, Company shall be the continuing
or surviving Person, (b) if
such a Subsidiary is not the surviving or continuing Person, the surviving
Person becomes a Subsidiary of Holdings and complies with the provisions of
subsection 6.8 and (c) no Potential Event of Default or Event of Default shall
have occurred or be continuing after giving effect thereto.


7.7                               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) with
any holder of 5% or more of any class of equity Securities of Company or with
any Affiliate of Company or of any such holder, on terms that are less
favorable to Company or that Subsidiary, as the case may be, than those that
might be obtained at the time from Persons who are not such a holder or
Affiliate; provided that the foregoing restriction shall not apply to
(i) any transaction between Company and any of its wholly-owned
Subsidiaries or between any of its wholly-owned Subsidiaries,
(ii) reasonable and customary fees paid to independent members of the
Governing Bodies of Holdings and its Subsidiaries, (iii) employment agreements
in the ordinary course, (iv) payments of fees to Sponsors and their Affiliates
on the Restatement Date and reimbursement of expenses to Sponsors on the
Restatement Date, (vi) reimbursement of reasonable out-of-pocket expenses
of Sponsors incurred in connection with the Business of Holdings and its
Subsidiaries, (vii) reimbursement of Transaction Costs, (viii)
distributions to Holdings to permit Holdings to repurchase its Capital Stock as
permitted by subsection 7.3(ix) and subsection 7.4(ii), or (ix) transactions set forth on Schedule 7.7 annexed hereto.



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7.8                               Sales
and Lease-Backs.


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, (i) that Company or any such Subsidiary has sold or transferred
or is to sell or transfer to any other Person (other than any of the
Subsidiaries that is a Subsidiary Guarantor) or (ii) that Company or any
of its Subsidiary Guarantors intends to use for substantially the same purpose
as any other property that has been or is to be sold or transferred by Company
or any of its Subsidiary Guarantors to any Person (other than Company or any of
its Subsidiaries that is a Subsidiary Guarantor) in connection with such lease;
provided that Holdings’ Subsidiaries may become and remain liable as
lessee, guarantor or other surety with respect to any such lease if and to the
extent that such Subsidiaries would be permitted to enter into, and remain
liable under, such lease to the extent that the transaction would be permitted
under subsection 7.1, assuming the sale and lease back transaction constituted
Indebtedness in a principal amount equal to the gross proceeds of the sale.


7.9                               Conduct of Business.


From and after the
Restatement Date, each of Holdings and Company shall not, and shall not permit
any of its Subsidiaries to, engage in any businesses other than (i) the
personal care business engaged in by Company and any other Subsidiary of
Holdings on the Restatement Date and similar or related businesses and (ii)
such other lines of business as may be consented to by Requisite Lenders.  From and after the Restatement Date, Holdings
shall not (i) engage in any business other than entering into and performing
its obligations under and in accordance with the Loan Documents to which it is
a party (including, without limitation, the payment of Transaction Costs) and
other activities incidental thereto (including the issuance of notes (which are
subordinated to the Obligations on terms reasonably satisfactory to
Administrative Agent) in payment of redemption price for Holdings’ Capital
Stock (or any option rights to acquire such Capital Stock) from any former or
current employer of any Loan Party) or (ii) own any assets other than (a) the
Capital Stock of Company, (b) the Capital Stock of its Foreign Subsidiaries and
(c) Cash and Cash Equivalents in an amount not to exceed $250,000.


7.10                        Fiscal
Year.


Each of Holdings and
Company shall not and shall not permit any of its Subsidiaries to, change their
respective Fiscal Year-end or their respective Fiscal Quarter-ends from that in
effect on the Restatement Date.


7.11                        OFAC.


Neither Holdings nor any
Subsidiary of Holdings: (i) will become a person whose property or interests in
property are blocked or subject to blocking pursuant to Section 1 of Executive
Order 13224 of September 23, 2001 Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten to Commit or Support Terrorism
(66 Fed. Reg. 49079(2001)), (ii) will engage in any dealings or transactions
prohibited by Section 2 of such



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executive order,
or be otherwise associated with any such person in any manner violative of
Section 2, or (iii) will otherwise become a person on the list of Specially
Designated Nationals and Blocked Persons or subject to the limitations or
prohibitions under any other OFAC regulation or executive order.


Section
8.                                          EVENTS
OF DEFAULT


If any of the following
conditions or events (“Events of Default”)
shall occur:


8.1                               Failure
to Make Payments When Due.


Failure by Company to pay
any installment of principal of any Loan when due, whether at stated maturity,
by acceleration, by notice of voluntary prepayment, by mandatory prepayment or
otherwise; failure by Company to pay when due any amount payable to an Issuing
Lender in reimbursement of any drawing under a Letter of Credit; or failure by
Company to pay any interest on any Loan or any fee or any other amount due
under this Agreement within five days after the date due; or


8.2                               Default
in Other Agreements.


(i)                                     Failure
of Holdings, Company or any of their 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 subsection 8.1) or
Contingent Obligations in an individual principal amount of $1,500,000 or more
or with an aggregate principal amount of $1,500,000 or more, in each case
beyond the end of any grace period provided therefor; or


(ii)                                  breach
or default by Holdings, Company or any of their Subsidiaries with respect to
any other material term of (a) one or more items of Indebtedness or Contingent Obligations
in the individual or aggregate principal amounts referred to in clause (i)
above or (b) any loan agreement, mortgage, indenture or other agreement
relating to such item(s) of Indebtedness or Contingent Obligation(s), if the
effect of such breach or default is to cause, or to permit the holder or
holders of that Indebtedness or Contingent Obligation(s) (or a trustee on
behalf of such holder or holders) to cause, that Indebtedness or Contingent
Obligation(s) to become or be declared due and payable prior to its stated
maturity or the stated maturity of any underlying obligation, as the case may
be (upon the giving or receiving of notice, lapse of time, both, or otherwise);
or


8.3                               Breach
of Certain Covenants.


Failure of Company
to perform or comply with any term or condition contained in subsection 2.5,
6.2 or Section 7 of this Agreement; provided, however, that
an Event of Default under subsection 7.5 shall be deemed cured, with
retroactive effect, if (A) Company delivers written notice of its intent to
cure such Event of Default with a Permitted Cure Issuance to Administrative
Agent concurrently with the Compliance Certificate required pursuant to
subsection 6.1(iv)(b) with respect to the relevant Fiscal Quarter, and (B)
Company receives the proceeds of such Permitted Cure Issuance within fifteen
(15) Business Days after delivery of such notice, it being further agreed that
(x) Consolidated EBITDA shall be deemed increased by



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the amount of such
Permitted Cure Issuance for purposes of (and only for purposes of) calculating
the Consolidated Leverage Ratio under subsection 7.5 for any fiscal period that
includes the Fiscal Quarter immediately preceding such Permitted Cure Issuance,
(y) no more than one Permitted Cure Issuance may be made in any five Fiscal
Quarter period and (z) no more than three Permitted Cure Issuances may be made
throughout the term of this Agreement; or


8.4                               Breach of Warranty.


Any representation,
warranty, certification or other statement made by Holdings, Company or any of
their Subsidiaries in any Loan Document or in any statement or certificate at
any time given by Holdings, Company or any of their Subsidiaries in writing
pursuant hereto or thereto or in connection herewith or therewith shall be
false in any material respect on the date as of which made; or


8.5                               Other
Defaults Under Loan Documents.


Any Loan Party shall
default in the performance of or compliance with any term contained in this
Agreement or any of the other Loan Documents, other than any such term referred
to in any other subsection of this Section 8, and such default shall not
have been remedied or waived within 30 days after the earlier of (i) an
Officer of Holdings, Company or such Loan Party becoming aware of such default
or (ii) receipt by Company or
such Loan Party of notice from Administrative Agent or any Lender of such
default; or


8.6                               Involuntary
Bankruptcy; Appointment of Receiver, etc.


(i)                                     A
court having jurisdiction in the premises shall enter a decree or order for
relief in respect of Holdings Company 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, Company or any of their
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, Company or any of its Subsidiaries, or
over all or a substantial part of its property, shall have been entered; or
there shall have occurred the involuntary appointment of an interim receiver,
trustee or other custodian of Holdings, Company or any of their 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, Company or any of its Subsidiaries, and any
such event described in this clause (ii) shall continue for 60 days unless
dismissed, bonded or discharged; provided that each of Holdings and Company
(for itself and its Subsidiaries) hereby expressly authorizes Administrative
Agent and Lenders to appear in any court conducting any relevant case or
proceeding during such 60-day period to preserve, protect and defend their
rights under the Loan Documents; or



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8.7                               Voluntary
Bankruptcy; Appointment of Receiver, etc.


(i)                                     Holdings,
Company or any of their Subsidiaries shall have an order for relief entered
with respect to it or 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, Company or any of their Subsidiaries shall
make any assignment for the benefit of creditors; or


(ii)                                  Holdings,
Company or any of their 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 Governing Body of Holdings, Company or any of their Subsidiaries
(or any committee thereof) shall adopt any resolution or otherwise authorize
any action to approve any of the actions referred to in clause (i) above or
this clause (ii); or


8.8                               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 $1,500,000 or (ii) in the aggregate
at any time an amount in excess of $1,500,000, 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, Company or any of their Subsidiaries or any of their respective
assets and shall remain undischarged, unvacated, unbonded or unstayed for a
period of 60 days (or in any event later than five days prior to the date of
any proposed sale thereunder); or


8.9                               Dissolution.


Any order, judgment or
decree shall be entered against Holdings, Company or any of their Subsidiaries
decreeing the dissolution or split up of Holdings, Company or that Subsidiary
and such order shall remain undischarged or unstayed for a period in excess of
30 days; or


8.10                        Employee
Benefit Plans.


There shall occur one or
more ERISA Events that individually or in the aggregate result in or could
reasonably be expected to result in liability of Company, any of its
Subsidiaries (including any such liability of their respective ERISA Affiliates
for which the Company or its Subsidiaries are jointly and severally liable) in
excess of $2,000,000 during the term of this Agreement; or


8.11                        Change in Control.


A Change in Control shall
have occurred; or



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8.12                        Invalidity
of Loan Documents; Failure of Security; Repudiation of Obligations.


At any time after the
execution and delivery thereof, (i) any Loan Document or any provision thereof,
for any reason, other than the satisfaction in full of all Obligations, 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, (ii) any Collateral Document shall
cease to be in full force and effect (other than by reason of a release of
Collateral thereunder in accordance with the terms hereof or thereof, the
satisfaction in full of the Obligations or any other termination of such
Collateral Document in accordance with the terms hereof or thereof) or shall be
declared null and void, or Administrative Agent shall not have or shall cease
to have a valid and perfected First Priority Lien in any Collateral purported
to be covered thereby (other than in accordance with its terms), in each case
for any reason other than the failure of Administrative Agent or any Lender to
take any action within its control, or (iii) any Loan Party shall contest the
validity or enforceability of any Loan Document or any provision thereof in
writing or deny in writing that it has any further liability, including with
respect to future advances by Lenders, under any Loan Document to which it is a
party:


THEN
(i) upon the occurrence of any Event of Default described in subsection
8.6, 8.7 or 8.11, each of (a) the unpaid principal amount of and accrued
interest on the Loans, (b) an amount equal to the maximum amount that may
at any time be drawn under all Letters of Credit then outstanding (whether or
not any beneficiary under any such Letter of Credit shall have presented, or
shall be entitled at such time to present, the drafts or other documents or
certificates required to draw under such Letter of Credit), and (c) all
other Obligations shall automatically become immediately due and payable,
without presentment, demand, protest or other requirements of any kind, all of
which are hereby expressly waived by Company, and the obligation of each Lender
to make any Loan, the obligation of Administrative Agent to issue any Letter of
Credit and the right of any Lender to issue any Letter of Credit hereunder
shall thereupon terminate, and (ii) upon the occurrence and during the
continuation of any other Event of Default, Administrative Agent shall, upon
the written request or with the written consent of Requisite Lenders, by
written notice to Company, declare all or any portion of the amounts described
in clauses (a) through (c) above to be, and the same shall forthwith become,
immediately due and payable, and the obligation of each Lender to make any
Loan, the obligation of Administrative Agent to issue any Letter of Credit and
the right of any Lender to issue any Letter of Credit hereunder shall thereupon
terminate; provided that the foregoing shall not affect in any way the
obligations of Revolving Lenders under subsection 3.3C(i) or the obligations of
Revolving Lenders to purchase assignments of any unpaid Swing Line Loans as
provided in subsection 2.1A(iii).


Any amounts described in
clause (b) above, when received by Administrative Agent, shall be held by
Administrative Agent pursuant to the terms of the Security Agreement and shall
be applied as therein provided.


Notwithstanding
anything contained in the second preceding paragraph, if at any time within 60
days after an acceleration of the Loans pursuant to clause (ii) of such
paragraph Company shall pay all arrears of interest and all payments on account
of principal which shall have become due other than as a result of such
acceleration (with interest on principal and, to the



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extent permitted by law, on overdue interest, at the rates specified in
this Agreement) and all Events of Default and Potential Events of Default
(other than non-payment of the principal of and accrued interest on the Loans,
in each case which is due and payable solely by virtue of acceleration) shall
be remedied or waived pursuant to subsection 10.6, then Requisite Lenders, by
written notice to Company, may at their option rescind and annul such
acceleration and its consequences; but such action shall not affect any
subsequent Event of Default or Potential Event of Default or impair any right
consequent thereon.  The provisions of
this paragraph are intended merely to bind Lenders to a decision which may be
made at the election of Requisite Lenders and are not intended, directly or
indirectly, to benefit Company, and such provisions shall not at any time be
construed so as to grant Company the right to require Lenders to rescind or
annul any acceleration hereunder or to preclude Administrative Agent or Lenders
from exercising any of the rights or remedies available to them under any of
the Loan Documents, even if the conditions set forth in this paragraph are met.


Section
9.                                          ADMINISTRATIVE
AGENT


9.1                               Appointment.


A.                                    Appointment
of Administrative Agent.  BNP
Paribas is hereby appointed Administrative Agent hereunder and under the
other Loan Documents.  Each Lender hereby
authorizes Administrative Agent to act as Administrative Agent in accordance
with the terms of this Agreement and the other Loan Documents.  Administrative Agent agrees to act upon the
express conditions contained in this Agreement and the other Loan Documents, as
applicable.  The provisions of this
Section 9 are solely for the benefit of Administrative Agent and Lenders
and no Loan Party shall have rights as a third party beneficiary of any of the
provisions thereof.  In performing its
functions and duties under this Agreement, Administrative Agent (other than as
provided in subsection 2.1D) 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 Company or any other Loan Party.


B.                                    Appointment
of Supplemental Collateral Agents. 
It is the purpose of this Agreement and the other Loan Documents that
there shall be no violation of any law of any jurisdiction denying or
restricting the right of banking corporations or associations to transact
business as Administrative Agent or trustee in such jurisdiction.  It is recognized that in case of litigation
under this Agreement or any of the other Loan Documents, and in particular in
case of the enforcement of any of the Loan Documents, or in case Administrative
Agent deems that by reason of any present or future law of any jurisdiction it
may not exercise any of the rights, powers or remedies granted herein or in any
of the other Loan Documents or take any other action which may be desirable or
necessary in connection therewith, it may be necessary that Administrative
Agent appoint an additional individual or institution as a separate trustee,
co-trustee, collateral agent or collateral co-agent (any such additional
individual or institution being referred to herein individually as a “Supplemental Collateral Agent” and collectively as “Supplemental Collateral Agents”).


In the event that
Administrative Agent appoints a Supplemental Collateral Agent with respect to
any Collateral, (i) each and every right, power, privilege or duty expressed or
intended by this Agreement or any of the other Loan Documents to be exercised
by or vested in



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or conveyed to
Administrative Agent with respect to such Collateral shall be exercisable by
and vest in such Supplemental Collateral Agent to the extent, and only to the
extent, necessary to enable such Supplemental Collateral Agent to exercise such
rights, powers and privileges with respect to such Collateral and to perform
such duties with respect to such Collateral, and every covenant and obligation
contained in the Loan Documents and necessary to the exercise or performance
thereof by such Supplemental Collateral Agent shall run to and be enforceable
by Administrative Agent or such Supplemental Collateral Agent, and (ii) the
provisions of this Section 9 and of subsections 10.2 and 10.3 that refer to
Administrative Agent shall inure to the benefit of such Supplemental Collateral
Agent and all references therein to Administrative Agent shall be deemed to be
references to Administrative Agent and/or such Supplemental Collateral Agent, as
the context may require.


Should any instrument in
writing from Company or any other Loan Party be required by any Supplemental
Collateral Agent so appointed by Administrative Agent for more fully and
certainly vesting in and confirming to him or it such rights, powers,
privileges and duties, Company shall, or shall cause such Loan Party to,
execute, acknowledge and deliver any and all such instruments promptly upon
request by Administrative Agent.  In case
any Supplemental Collateral Agent, or a successor thereto, shall die, become
incapable of acting, resign or be removed, all the rights, powers, privileges
and duties of such Supplemental Collateral Agent, to the extent permitted by
law, shall vest in and be exercised by Administrative Agent until the appointment
of a new Supplemental Collateral Agent.


C.                                    Control.   Each Lender and Administrative Agent hereby appoint
each other Lender as agent for the purpose of perfecting Administrative Agent’s
security interest in assets that, in accordance with the UCC, can be perfected
by possession or control.


9.2                               Powers and Duties; General Immunity.


A.                                    Powers; Duties Specified.  Each Lender irrevocably authorizes the
Administrative Agent to take such action on such Lender’s behalf and to
exercise such powers, rights and remedies hereunder and under the other Loan
Documents as are specifically delegated or granted to Administrative Agent by
the terms hereof and thereof, together with such powers, rights and remedies as
are reasonably incidental thereto. 
Administrative Agent shall have only those duties and responsibilities
that are expressly specified in this Agreement and the other Loan
Documents.  Administrative Agent may
exercise such powers, rights and remedies and perform such duties by or through
its agents or employees.  Administrative
Agent shall not have, by reason of this Agreement or any of the other Loan
Documents, a fiduciary relationship in respect of any Lender or Company; and
nothing in this Agreement or any of the other Loan Documents, expressed or
implied, is intended to or shall be so construed as to impose upon
Administrative Agent any obligations in respect of this Agreement or any of the
other Loan Documents except as expressly set forth herein or therein.  Administrative Agent is further authorized by
the Lenders to enter into agreements supplemental hereto with any Loan Party
for the purpose of curing any formal defect, inconsistency, omission or
ambiguity in this Agreement or any Loan Document to which it is a party
(without any consent or approval by the Lenders).


B.                                    No Responsibility for Certain Matters.  Administrative Agent shall not be responsible
to any Lender for the execution, effectiveness, genuineness, validity,



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enforceability,
collectibility or sufficiency of this Agreement or any other Loan 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 Administrative Agent to Lenders or by or on behalf of
Sponsors, Holdings, Company or any of their Subsidiaries to Administrative
Agent or any Lender in connection with the Loan Documents and the transactions
contemplated thereby or for the financial condition or business affairs of
Sponsors, Holdings, Company or any of their Subsidiaries or any other Person
liable for the payment of any Obligations, nor shall Administrative 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 Loan Documents or as to the use of the proceeds of the Loans or the use of
the Letters of Credit or as to the existence or possible existence of any Event
of Default or Potential Event of Default. 
Anything contained in this Agreement to the contrary notwithstanding,
Administrative Agent shall have no liability arising from confirmations of the
amount of outstanding Loans or the Letter of Credit Usage or the component
amounts thereof.


C.                                    Exculpatory Provisions.  Neither Administrative Agent nor any of its
officers, directors, employees or agents shall be liable to Lenders for any
action taken or omitted by Administrative Agent under or in connection with any
of the Loan Documents except to the extent caused by Administrative Agent’s
gross negligence or willful misconduct. 
Administrative Agent shall be entitled to refrain from any act or the
taking of any action (including the failure to take an action) in connection
with this Agreement or any of the other Loan Documents or from the exercise of
any power, discretion or authority vested in it hereunder or thereunder unless
and until Administrative Agent shall have received instructions in respect
thereof from Requisite Lenders (or such other Lenders as may be required to
give such instructions under subsection 10.6) and, upon receipt of such
instructions from Requisite Lenders (or such other Lenders, as the case may
be), Administrative 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; provided that Administrative Agent
shall not be required to take any action that, in its opinion or the opinion of
its counsel, may expose Administrative Agent to liability or that is contrary
to any Loan Document or applicable law. 
Without prejudice to the generality of the foregoing,
(i) Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any communication (including any electronic message,
Internet or intranet website posting or other distribution), 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, Company and its Subsidiaries), accountants, experts and
other professional advisors selected by it; and (ii) no Lender shall have
any right of action whatsoever against Administrative Agent as a result of
Administrative Agent acting or (where so instructed) refraining from acting
under this Agreement or any of the other Loan Documents in accordance with the
instructions of Requisite Lenders (or such other Lenders as may be required to
give such instructions under subsection 10.6).


D.                                    Administrative Agent 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, Administrative Agent in its individual capacity
as a Lender hereunder.  With respect to
its participation in the Loans and the Letters of Credit, Administrative Agent
shall



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have the same
rights and powers hereunder as any other Lender and may exercise the same as
though it were not performing the duties and functions delegated to it
hereunder, and the term “Lender” or “Lenders” or any similar term shall, unless
the context clearly otherwise indicates, include Administrative Agent in its
individual capacity.  Administrative
Agent and its Affiliates may accept deposits from, lend money to, acquire
equity interests in and generally engage in any kind of commercial banking,
investment banking, trust, financial advisory or other business with Company 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 with this Agreement and otherwise without having to account for the
same to Lenders.


9.3                               Independent Investigation by Lenders; No
Responsibility For Appraisal of Creditworthiness.


Each Lender agrees that
it has made its own independent investigation of the financial condition and
affairs of Holdings, Company and their Subsidiaries in connection with the
making of the Loans and the issuance of Letters of Credit hereunder and that it
has made and shall continue to make its own appraisal of the creditworthiness
of Holdings, Company and its Subsidiaries. Administrative Agent shall have no
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 Loans or at any time or
times thereafter, Administrative shall have no responsibility with respect to
the accuracy of or the completeness of any information provided to Lenders.


 


9.4                               Right to Indemnity.


Each Lender, in
proportion to its Pro Rata Share, severally agrees to indemnify Administrative
Agent and its officers, directors, employees, agents, attorneys, professional
advisors and Affiliates to the extent that any such Person shall not have been
reimbursed by Company, for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
(including counsel fees and disbursements and fees and disbursements of any
financial advisor engaged by Administrative Agent) or disbursements of any kind
or nature whatsoever which may be imposed on, incurred by or asserted against
Administrative Agent or such other Person in exercising the powers, rights and
remedies of Administrative Agent or performing duties of Administrative Agent
hereunder or under the other Loan Documents or otherwise in its capacity as
Administrative Agent in any way relating to or arising out of this Agreement or
the other Loan Documents; provided that no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of Administrative
Agent resulting solely from Administrative Agent’s gross negligence, bad faith
or willful misconduct as determined by a final judgment of a court of competent
jurisdiction.  If any indemnity furnished
to Administrative Agent or any other such Person for any purpose shall, in the
opinion of Administrative Agent, be insufficient or become impaired,
Administrative Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished.



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9.5                               Resignation
of Administrative Agent; Successor Administrative Agent and Swing Line Lender.


A.                                    Resignation;
Successor Administrative Agent. 
Administrative Agent may resign at any time by giving 30 days’ prior
written notice thereof to Lenders and Company. 
Upon any such notice of resignation by Administrative Agent, Requisite
Lenders shall have the right, upon five Business Days’ notice to Company, to
appoint a successor Administrative Agent. 
If no such successor shall have been so appointed by Requisite Lenders
and shall have accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, the retiring Administrative Agent may,
on behalf of Lenders, appoint a successor Administrative Agent.  If such Administrative Agent shall notify
Lenders and Company that no Person has accepted such appointment as successor
Administrative Agent, such resignation shall nonetheless become effective in
accordance with  Administrative Agent’s
notice and (i) the retiring Administrative Agent shall be discharged from its
duties and obligations under the Loan Documents, except that any Collateral
held by Administrative Agent will continue to be held by it until a Person
shall have accepted the appointment of successor Administrative Agent, and
(ii) all payments, communications and determinations provided to be made
by, to or through Administrative Agent shall instead be made by, to or through
each Lender directly, until such time as Requisite Lenders appoint a successor
Administrative Agent in accordance with this subsection 9.5A.  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 be discharged
from its duties and obligations under this Agreement (if not already discharged
as set forth above).  After any retiring
Administrative Agent’s resignation hereunder, 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 under this Agreement.


B.                                    Successor Swing Line Lender.  Any resignation of Administrative Agent
pursuant to subsection 9.5A shall also constitute the resignation of
Administrative Agent or its successor as Swing Line Lender, and any successor
Administrative Agent appointed pursuant to subsection 9.5A shall, upon its
acceptance of such appointment, become the successor Swing Line Lender for all
purposes hereunder.  In such event (i) Company
shall prepay any outstanding Swing Line Loans made by the retiring
Administrative Agent in its capacity as Swing Line Lender, (ii) upon such
prepayment, the retiring Administrative Agent and Swing Line Lender shall
surrender any Swing Line Note held by it to Company for cancellation, and
(iii) if so requested by the successor Administrative Agent and Swing Line
Lender in accordance with subsection 2.1E, Company shall issue a new Swing Line
Note to the successor Administrative Agent and Swing Line Lender substantially
in the form of Exhibit VI annexed hereto, in the amount of the Swing
Line Loan Commitment then in effect and with other appropriate insertions.


9.6                               Collateral Documents and Guaranties.


Each Lender (which term
shall include, for purposes of this subsection 9.6, any Lender in its capacity
as a counterparty to a Hedge Agreement with Company or one of its Subsidiaries)
hereby further authorizes Administrative Agent, on behalf of and for the
benefit of



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Lenders, to enter
into each Collateral Document as secured party and to be the agent for and
representative of Lenders under each Guaranty, and each Lender agrees to be
bound by the terms of each Collateral Document, the Intercreditor Agreement,
the Holdings Subordination Agreement and each Guaranty; provided that
Administrative Agent shall not (i) enter into or consent to any material
amendment, modification, termination or waiver of or departure from any
provision contained in any Collateral Document, the Intercreditor Agreement,
the Holdings Subordination Agreement or the Guaranties or (ii) release any
Collateral (except as otherwise expressly permitted or required pursuant to the
terms of this Agreement or the applicable Collateral Document), in each case
without the prior written consent of Requisite Lenders (or, if required
pursuant to subsection 10.6, all Lenders); provided  further, however,
that, without further written consent or authorization from Lenders,
Administrative Agent may execute any documents or instruments necessary to
(a) release any Lien encumbering any item of Collateral that is the
subject of a sale or other disposition of assets permitted by this Agreement or
to which Requisite Lenders have otherwise consented, (b) release any
Subsidiary Guarantor from the Subsidiary Guaranty if all of the Capital Stock
of such Subsidiary Guarantor is sold to any Person (other than an Affiliate of
Company) pursuant to a sale or other disposition permitted hereunder or to
which Requisite Lenders have otherwise consented or (c) subordinate the
Liens of  Administrative Agent, on behalf
of Lenders, to any Liens permitted by subsection 7.2; provided that, in
the case of a sale of such item of Collateral or stock referred to in
subdivision (a) or (b), the requirements of subsection 10.14 are satisfied.  Anything contained in any of the Loan
Documents to the contrary notwithstanding, Company, Administrative Agent and
each Lender hereby agree that (1) no Lender shall have any right individually
to realize upon any of the Collateral under any Collateral Document or to
enforce any Guaranty, it being understood and agreed that all powers, rights
and remedies under the Collateral Documents, the Intercreditor Agreement and
the Guaranties may be exercised solely by Administrative Agent for the benefit
of Lenders in accordance with the terms thereof, and (2) in the event of a
foreclosure by Administrative Agent on any of the Collateral pursuant to a
public or private sale, Administrative Agent or any Lender may be the purchaser
of any or all of such Collateral at any such sale and Administrative Agent, as
agent for and representative of Lenders (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 Administrative Agent at such sale.


Without derogating from
any other authority granted to Administrative Agent herein or in the Collateral
Documents or any other document relating thereto, each Lender hereby
specifically (i) authorizes Administrative Agent to enter into pledge
agreements pursuant to this subsection 9.6 with respect to the Capital Stock of
all existing and future Foreign Subsidiaries, which pledge agreements may be
governed by the laws of each of the jurisdictions of formation of such Foreign
Subsidiaries, as agent on behalf of each of Lenders, with the effect that
Lenders each become a secured party thereunder or, where relevant as agent and
trustee with the effect that the Lenders each become beneficiaries of the trust
and Administrative Agent has all the rights, powers, discretions, protections
and exemptions from liability set out in the pledge agreements and (ii) except
in connection with any such pledge agreement where Administrative Agent holds
the security as agent and trustee for the Lenders, appoints Administrative
Agent as its attorney-in-fact granting it the powers to execute each such
pledge agreement and any



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registrations of
the security interest thereby created, in each case in its name and on its
behalf, with the effect that each Lender becomes a secured party
thereunder.  With respect to each such
pledge agreement, Administrative Agent has the power to sub-delegate to third
parties its powers as attorney-in-fact of each Lender.


9.7                               Duties
of Other Agents.


To the extent that any
Lender is identified in this Agreement as a co-agent, documentation agent or
syndication agent, such Lender shall not have any right, power, obligation,
liability, responsibility or duty under this Agreement other than those
applicable to all Lenders as such. 
Without limiting the foregoing, none of such Lenders shall have or be
deemed to have a fiduciary relationship with any Lender.


9.8                               Administrative Agent May File Proofs of Claim.


In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
Holdings, Company or any of the Subsidiaries of Holdings or Company,
Administrative Agent (irrespective of whether the principal of any Loan shall then
be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether Administrative Agent shall have made any demand on
Company) shall be entitled and empowered, by intervention in such proceeding or
otherwise:


(i)                                     to
file and prove a claim for the whole amount of principal and interest owing and
unpaid in respect of the Loans and any other Obligations that are owing and
unpaid and to file such other papers or documents as may be necessary or
advisable in order to have the claims of Lenders and Administrative Agent
(including any claim for the reasonable compensation, expenses, disbursements
and advances of Lenders and Administrative Agent and their agents and counsel
and all other amounts due Lenders and Administrative Agent under subsections
2.3 and 10.2) allowed in such judicial proceeding, and


(ii)                                  to
collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same;


and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender to make
such payments to Administrative Agent and, in the event that Administrative
Agent shall consent to the making of such payments directly to Lenders, to pay
to Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of Administrative Agent and its agents and
counsel, and any other amounts due to Administrative Agent under subsections
2.3 and 10.2.


Nothing herein contained
shall be deemed to authorize Administrative Agent to authorize or consent to or
accept or adopt on behalf of any Lender any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights of
any Lenders or to authorize Administrative Agent to vote in respect of the
claim of any Lender in any such proceeding.



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Section 10.                                   MISCELLANEOUS


10.1                        Successors
and Assigns; Assignments and Participations in Loans and Letters of Credit.


A.                                    General.  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 successors and assigns of Lenders (it
being understood that Lenders’ rights of assignment are subject to the further
provisions of this subsection 10.1). 
Neither Company’s rights or obligations hereunder nor any interest
therein may be assigned or delegated by Company without the prior written
consent of all Lenders (and any attempted assignment or transfer by Company
without such consent shall be null and void). 
No sale, assignment or transfer or participation of any Letter of Credit
or any participation therein may be made separately from a sale, assignment,
transfer or participation of a corresponding interest in the Revolving Loan
Commitment and the Revolving Loans of the Revolving Lender effecting such sale,
assignment, transfer or participation. 
Anything contained herein to the contrary notwithstanding, except as
provided in subsection 2.1A(iii) and subsection 10.5, the Swing Line Loan
Commitment and the Swing Line Loans of Swing Line Lender may not be sold,
assigned or transferred as described below to any Person other than a successor
Administrative Agent and Swing Line Lender to the extent contemplated by
subsection 9.5.  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, the
Affiliates of each of Administrative Agent and Lenders and Indemnitees) any
legal or equitable right, remedy or claim under or by reason of this Agreement.


B.                                    Assignments.


(i)                                     Amounts
and Terms of Assignments.  Any Lender
may assign to one or more Eligible Assignees all or any portion of its rights
and obligations under this Agreement; provided that (a), except (1) in
the case of an assignment of the entire remaining amount of the assigning
Lender’s rights and obligations under this Agreement or (2) in the case of
an assignment to a Lender or an Affiliate of a Lender or an Approved Fund of a
Lender, the aggregate amount of the Revolving Loan Exposure or Term Loan
Exposure, as the case may be, of the assigning Lender and the assignee subject
to each such assignment shall not be less than $2,500,000, in the case of any
assignment of a Revolving Loan, or $1,000,000, in the case of any assignment of
a Term Loan (or $250,000 in the case of any assignment of a Term Loan by a
Lender or an Approved Fund to a Lender or an Approved Fund that in each case
has, or is affiliated with or managed by a Lender with Affiliates and/or Approved
Funds that collectively have, aggregate Term Loan Exposure of not less than
$1,000,000), unless Administrative Agent otherwise consents (such consent not
to be unreasonably withheld or delayed), (b) each partial assignment shall
be made as an assignment of a proportionate part of all the assigning Lender’s
rights and obligations under this Agreement with respect to the Loan or the
Commitment assigned, (c) the parties to each assignment shall execute and
deliver to Administrative Agent an Assignment Agreement, together with a
processing and recordation fee of $3,500 (unless the assignee is an Affiliate
or an Approved Fund of the assignor, in which case no fee shall be required and
provided, further, that only one



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recordation fee will be charged where multiple assignments are made by
a single assignor to multiple Approved Funds administered or managed by the
same Person, or by multiple Approved Funds administered or managed by the same
Person to a single assignee), and the Eligible Assignee, if it shall not be a
Lender, shall deliver to Administrative Agent information reasonably requested
by Administrative Agent, including 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 subsection 2.7B(iii) and (d) except in the
case of an assignment to another Lender, an Affiliate of a Lender or an
Approved Fund of a Lender, Administrative Agent, and, if no Event of Default
has occurred and is continuing, Company, shall have consented thereto (which
consent shall not be unreasonably withheld or delayed).


Upon such execution, and delivery
and consent, from and after the effective date specified in such Assignment
Agreement, (y) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment Agreement, shall have the rights and obligations of a Lender
hereunder and (z) the assigning Lender thereunder shall, to the extent
that rights and obligations hereunder have been assigned by it pursuant to such
Assignment Agreement, relinquish its rights (other than any rights which
survive the termination of this Agreement under subsection 10.9B) and be
released from its obligations under this Agreement (and, in the case of an
Assignment Agreement covering all or the remaining portion of an assigning
Lender’s rights and obligations under this Agreement, such Lender shall cease
to be a party hereto; provided that, anything contained in any of the
Loan Documents to the contrary notwithstanding, if such Lender is an Issuing
Lender such Lender shall continue to have all rights and obligations of an
Issuing Lender until the cancellation or expiration of any Letters of Credit
issued by it and the reimbursement of any amounts drawn thereunder).  The assigning Lender shall, upon the
effectiveness of such assignment or as promptly thereafter as practicable,
surrender its Notes, if any, to Administrative Agent for cancellation, and
thereupon new Notes shall, if so requested by the assignee and/or the assigning
Lender in accordance with subsection 2.1E, be issued to the assignee and/or to
the assigning Lender, substantially in the form of Exhibit IV, Exhibit
V or Exhibit VI annexed hereto, as the case may be, with appropriate
insertions, to reflect the amounts of the new Commitments and/or outstanding
Revolving Loans and/or outstanding Term Loans of the assignee and/or the assigning
Lender.  Other than as provided in
subsection 2.1A(iii) and subsection 10.5, any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this subsection 10.1B shall be treated for purposes of this Agreement as a sale
by such Lender of a participation in such rights and obligations in accordance
with subsection 10.1C.  Notwithstanding
the foregoing, in the case of an assignment to an Eligible Assignee which is, immediately
prior to such assignment, an Affiliate of the assigning Lender or an Approved
Fund of the assigning Lender, such assignment shall be effective between such
assigning Lender and its Affiliate or Approved Fund (as the case may be)
immediately without compliance with the conditions for assignment under this
subsection 10.1B, but shall not be effective with respect to Company,
Administrative Agent, any Issuing Lender or any Lender, and Company,
Administrative Agent, each Issuing Lender and each Lender shall be entitled



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to deal solely and
directly with such assigning Lender under any such assignment, in each case,
until the conditions for assignment under this subsection 10.1B have been
complied with.


(ii)                                  Acceptance
by Administrative Agent; Recordation in Register.  Upon its receipt of an Assignment Agreement
executed by an assigning Lender and an assignee representing that it is an
Eligible Assignee, together with the processing and recordation fee referred to
in subsection 10.1B(i) (if required) and any forms, certificates or other evidence
with respect to United States federal income tax withholding matters that such
assignee may be required to deliver to Administrative Agent pursuant to
subsection 2.7B(iii), Administrative Agent shall, if Administrative Agent and
Company have consented to the assignment evidenced thereby (in each case to the
extent such consent is required pursuant to subsection 10.1B(i)),
(a) accept such Assignment Agreement by executing a counterpart thereof as
provided therein (which acceptance shall evidence any required consent of
Administrative Agent to such assignment), (b) record the information
contained therein in the Register, and (c) give prompt notice thereof to
Company.  Administrative Agent shall
maintain a copy of each Assignment Agreement delivered to and accepted by it as
provided in this subsection 10.1B(ii).


(iii)                               Deemed Consent by
Company.  If the consent of Company
to an assignment or to an Eligible Assignee is required hereunder (including a
consent to an assignment which does not meet the minimum assignment thresholds
specified in subsection 10.1B(i)), Company shall be deemed to have given its
consent five Business Days after the date notice thereof has been delivered by
the assigning Lender (through Administrative Agent) unless such consent is expressly
refused by Company prior to such fifth Business Day.


C.                                    Participations.  Any Lender may, without the consent of, or
notice to, Company or Administrative Agent, sell participations to one or more
Persons (other than a natural Person or Company or any of its Affiliates) in
all or a portion of such Lender’s rights and/or obligations under this
Agreement; provided that (i) such Lender’s obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) Company, Administrative Agent and Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement. 
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver directly affecting
(i) the extension of the scheduled final maturity date of any Loan allocated
to such participation or (ii) a reduction of the principal amount of or
the rate of interest payable on any Loan allocated to such participation.  Subject to the further provisions of this
subsection 10.1C, Company agrees that each Participant shall be entitled to the
benefits of subsections 2.6D and 2.7 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to subsection 10.1B.  To the extent permitted by law, each
Participant also shall be entitled to the benefits of subsection 10.4 as though
it were a Lender, provided such Participant agrees to be subject to subsection
10.5 as though it were a Lender.  A
Participant



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shall not be
entitled to receive any greater payment under subsections 2.6D and 2.7 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 Company’s prior written consent.  A Participant that would be a Non-US Lender
if it were a Lender shall not be entitled to the benefits of subsection 2.7
unless Company is notified of the participation sold to such Participant and
such Participant agrees, for the benefit of Company, to comply with subsection
2.7B(iii) as though it were a Lender.


D.                                    Pledges
and Assignments.  Any Lender may at
any time pledge or assign a security interest in all or any portion of its
Loans, and the other Obligations owed to such Lender, to secure obligations of
such Lender, including without limitation any pledge or assignment to secure
obligations to any Federal Reserve Bank; provided that (i) no
Lender shall be relieved of any of its obligations hereunder as a result of any
such assignment or pledge and (ii) in no event shall any assignee or
pledgee be considered to be a “Lender” or be
entitled to require the assigning Lender to take or omit to take any action
hereunder.


E.                                      Information.  Each Lender may furnish any information
concerning Holdings, Company and their Subsidiaries in the possession of that
Lender from time to time to assignees and participants (including prospective
assignees and participants), subject to subsection 10.19.


F.                                      Agreements
of Lenders.  Each Lender listed on
the signature pages hereof hereby agrees, and each Lender that becomes a party
hereto pursuant to an Assignment Agreement shall be deemed to agree, (i) that
it is an Eligible Assignee described in clause (A) of the definition thereof;
(ii) that it has experience and expertise in the making of or purchasing loans
such as the Loans; and (iii) that it will make or purchase Loans for its own
account in the ordinary course of its business and without a view to
distribution of such 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 subsection 10.1, the disposition of such
Loans or any interests therein shall at all times remain within its exclusive
control).


10.2                        Expenses.


Whether or not the
transactions contemplated hereby shall be consummated, Company agrees to pay
promptly (i) all reasonable costs and expenses of negotiation, preparation
and execution of the Loan Documents and any consents, amendments, waivers or
other modifications thereto; (ii) all costs and expenses of furnishing all
opinions by counsel for Company (including any opinions requested by
Administrative Agent or Lenders as to any legal matters arising hereunder) and
of Company’s performance of and compliance with all agreements and conditions
on its part to be performed or complied with under this Agreement and the other
Loan Documents including with respect to confirming compliance with
environmental, insurance and solvency requirements; (iii) all reasonable
fees, expenses and disbursements of counsel to Administrative Agent (including
allocated costs of internal counsel) in connection with the negotiation,
preparation, execution and administration of the Loan Documents and any
consents, amendments, waivers or other modifications thereto and any other
documents or matters requested by Company; (iv) all costs and expenses of
creating and perfecting Liens in favor of Administrative Agent on behalf of
Lenders pursuant to any



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Collateral Document, 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 Administrative Agent
and of counsel providing any opinions that Administrative Agent or Requisite
Lenders may request in respect of the Collateral Documents or the Liens created
pursuant thereto; (v) all costs and expenses (including the reasonable
fees, expenses and disbursements of any auditors, accountants or appraisers and
any environmental or other consultants, advisors and agents employed or
retained by Administrative Agent or its counsel) of obtaining and reviewing any
appraisals provided for under this Agreement and any environmental audits or
reports provided for under this Agreement; (vi) all costs and expenses
incurred by Administrative Agent in connection with the custody or preservation
of any of the Collateral; (vii) all other costs and expenses incurred by
Administrative Agent in connection with the syndication of the Commitments;
(viii) all costs and expenses, including reasonable attorneys’ fees (including
allocated costs of internal counsel) and fees, costs and expenses of
accountants, advisors and consultants, incurred by Administrative Agent and its
counsel relating to efforts to (a) evaluate or assess any Loan Party, its
business or financial condition and (b) protect, evaluate, assess or dispose of
any of the Collateral; and (ix) all costs and expenses, including reasonable
attorneys’ fees (including allocated costs of internal counsel), fees, costs
and expenses of accountants, advisors and consultants and costs of settlement,
incurred by Administrative Agent and Lenders in enforcing any Obligations of or
in collecting any payments due from any Loan Party hereunder or under the other
Loan Documents (including in connection with the sale of, collection from, or
other realization upon any of the Collateral or the enforcement of the Loan
Documents) or in connection with any refinancing or restructuring of the credit
arrangements provided under this Agreement in the nature of a “work-out” or
pursuant to any insolvency or bankruptcy proceedings.


10.3                        Indemnity.


In addition to the
payment of expenses pursuant to subsection 10.2, whether or not the
transactions contemplated hereby shall be consummated, Company agrees to defend
(subject to Indemnitees’ selection of counsel), indemnify, pay and hold
harmless Administrative Agent and Lenders (including Issuing Lenders), and the
officers, directors, trustees, employees, agents, advisors and Affiliates of
Administrative Agent and Lenders (collectively called the “Indemnitees”),
from and against any and all Indemnified Liabilities (as hereinafter defined); provided
that Company shall not have any obligation to any Indemnitee hereunder with
respect to any Indemnified Liabilities to the extent such Indemnified
Liabilities arise solely from the gross negligence or willful misconduct of
that Indemnitee as determined by a final judgment of a court of 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 (including
allocated costs of internal counsel) in connection with any investigative,
administrative or judicial proceeding commenced or threatened by any Person,
whether or not any such Indemnitee shall be designated



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as a party or a
potential party thereto and including any such proceeding initiated by or on
behalf of a Loan Party, 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 (i) this
Agreement or the other Loan Documents or the transactions contemplated hereby
or thereby (including Lenders’ agreement to make the Loans hereunder or the use
or intended use of the proceeds thereof or the issuance of Letters of Credit
hereunder or the use or intended use of any thereof, the failure of an Issuing
Lender to honor a drawing under a Letter of Credit as a result of any act or
omission, whether rightful or wrongful, of any present or future de jure or de
facto Government Authority, or any enforcement of any of the Loan Documents
(including any sale of, collection from, or other realization upon any of the
Collateral or the enforcement of the Guaranties)), (ii) the statements
contained in the commitment letter delivered by any Lender to Company with
respect thereto,  or (iii) any
Environmental Claim or any Hazardous Materials Activity relating to or arising
from, directly or indirectly, any past or present activity, operation, land
ownership, or practice of Company or any of its Subsidiaries.


To the extent that the
undertakings to defend, indemnify, pay and hold harmless set forth in this
subsection 10.3 may be unenforceable in whole or in part because they are
violative of any law or public policy, Company 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.


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 continuation of any Event
of Default and consultation with Administrative Agent, each of Lenders and
their Affiliates is hereby authorized by Company at any time or from time to
time, without notice to Company or to any other Person, any such notice being
hereby expressly waived, to set off and to appropriate and to apply any and all
deposits (general or special, time or demand, provisional or final, 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 that Lender or any Affiliate of that Lender to or for the
credit or the account of Company and each other Loan Party against and on
account of the Obligations of Company or any other Loan Party to that Lender
(or any Affiliate of that Lender) or to any other Lender (or any Affiliate of
any other Lender) under this Agreement, the Letters of Credit and
participations therein and the other Loan Documents, including all claims of
any nature or description arising out of or connected with this Agreement, the
Letters of Credit and participations therein or any other Loan Document,
irrespective of whether or not (i) that Lender shall have made any demand
hereunder or (ii) the principal of or the interest on the Loans or any amounts
in respect of the Letters of Credit or any other amounts due hereunder shall
have become due and payable pursuant to Section 8 and although said
obligations and liabilities, or any of them, may be contingent or unmatured.



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10.5                        Ratable
Sharing.


Lenders hereby agree
among themselves that if any of them shall, whether by voluntary or mandatory
payment (other than a payment or prepayment of Loans made and applied in
accordance with the terms of this Agreement), by realization upon security,
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 Loan Documents
(including any bid or purchase at public or private sale) 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, amounts payable in respect of Letters of Credit,
fees and other amounts then due and owing to that Lender hereunder or under the
other Loan Documents (collectively, the “Aggregate Amounts Due”
to such Lender) that 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, unless such
proportionately greater payment is required by the terms of this Agreement,
(i) notify Administrative Agent and each other Lender of the receipt of
such payment and (ii) apply a portion of such payment to purchase
assignments (which it shall be deemed to have purchased from each seller of an
assignment simultaneously upon the receipt by such seller of its portion of
such payment) of 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 that (A) 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 Company or otherwise, those purchases shall be rescinded and
the purchase prices paid for such assignments shall be returned to such
purchasing Lender ratably to the extent of such recovery, but without interest
and (B) the foregoing provisions shall not apply to (1) any payment made by Company
pursuant to and in accordance with the express terms of this Agreement or (2)
any payment obtained by a Lender as consideration for the assignment (other
than an assignment pursuant to this subsection 10.5) of or the sale of a
participation in any of its Obligations to any Eligible Assignee or Participant
pursuant to subsection 10.1B.  Company
expressly consents to the foregoing arrangement and agrees that any purchaser
of an assignment so purchased may exercise any and all rights of a Lender as to
such assignment as fully as if that Lender had complied with the provisions of
subsection 10.1B with respect to such assignment.  In order to further evidence such assignment
(and without prejudice to the effectiveness of the assignment provisions set
forth above), each purchasing Lender and each selling Lender agree to enter
into an Assignment Agreement at the request of a selling Lender or a purchasing
Lender, as the case may be, in form and substance reasonably satisfactory to
each such Lender.


10.6                        Amendments
and Waivers.


A.                                    No
amendment, modification, termination or waiver of any provision of this
Agreement or of the Notes or any other Loan Documents (other than Hedge
Agreements), and no consent to any departure by Loan Party or any other Person
therefrom, shall in any event be effective without the prior written
concurrence of Requisite Lenders; provided that any such amendment,
modification, termination, waiver or consent which:


(a)                                  extends
the final scheduled maturity of any Loan or Note, or extends the stated
maturity of any Letter of Credit beyond the Revolving Loan



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Commitment Termination Date, or reduces the rate or extends 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 reduces the
principal amount thereof (except to the extent repaid in cash) shall not be
effective without the prior written consent of each Lender directly affected
thereby; or


(b)                                 (i)
releases all or substantially all of (x) the Collateral (except as expressly
provided in the Loan Documents) under all the Collateral Documents, or (y) the
Loan Parties (except as expressly provided in the Loan Documents) from their
obligations under any of the Guaranties; (ii) amends, modifies or waives any
provision of this subsection 10.6; (iii) reduces the percentage specified in
the definition of “Requisite Lenders”
or “Requisite Class Lenders” (it being
understood that, with the consent of Requisite Lenders, additional extensions
of credit (within an existing Class or a new Class) pursuant to this Agreement
may be included in the determination of Requisite Lenders and Requisite Class
Lenders on substantially the same basis as the extensions of Term Loans and
Revolving Loan Commitments are included on the Restatement Date); and (iv)
consents to the assignment or transfer by Company of any of its rights and
obligations under this Agreement or any other Loan Document shall be effective
only if evidenced in a prior writing signed by or on behalf of all Lenders.


In addition, (i) no
amendment, modification, termination or waiver which shall increase the
Commitment of any Lender over the amount then in effect or postpone the
scheduled date of expiration of the Commitment of any Lender shall be effective
without the prior written consent of such Lender (it being understood that,
waivers or modifications of conditions precedent, covenants, Potential Events
of Default or Events of Default or of a mandatory reduction in the Commitments
shall not constitute an increase of the Commitment of any Lender and that an
increase in the available portion of the Commitment of any Lender shall not
constitute an increase in the Commitment of such Lender), (ii) no amendment,
modification, termination or waiver of any provision of subsection 2.1A(iii) or
of any other provision of this Agreement relating to the Swing Line Loan
Commitment or the Swing Line Loans shall be effective without the written
concurrence of Swing Line Lender, (iii) no amendment, modification, termination
or waiver of any provision of Section 9 or of any other provision of this
Agreement which, by its terms, expressly requires the approval or concurrence
of Administrative Agent shall be effective without the written concurrence of
Administrative Agent, (iv) no amendment, modification, termination or waiver of
any provision of subsection 2.4 which has the effect of changing any interim
scheduled payments, voluntary or mandatory prepayments, or Commitment
reductions applicable to a Class in a manner that disproportionately
disadvantages such Class relative to any other Class shall be effective without
the written concurrence of Requisite Class Lenders of such affected Class; provided
that any change to the stated amount or specified date of scheduled amortization
payments set forth in subsection 2.4A shall not be effective without the
written concurrence of all Lenders of such affected Class (it being understood
and agreed that any amendment, modification, termination or waiver of any such
provision which only postpones or reduces any interim scheduled payment,
voluntary or mandatory prepayment, or Commitment reduction from those set forth
in subsection 2.4 with respect to one Class but not the other Class shall be
deemed to disproportionately disadvantage such one Class but not to
disproportionately disadvantage any such other Class for



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purposes of this
clause (iv)), and (v) no amendment, modification, termination or waiver of any
provision of Section 3 or other provisions in this Agreement relating to
Letters of Credit or Issuing Lender shall be effective without the written
concurrence of Issuing Lender which has a Letter of Credit then outstanding or
which has not been reimbursed for a drawing under a Letter of Credit issued by
it.


B.                                    Administrative
Agent may, but shall have no obligation to, with the concurrence of any Lender,
execute amendments, modifications, waivers or consents on behalf of that
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
Company in any case shall entitle Company 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 subsection 10.6 shall be binding upon each Lender at
the time outstanding, each future Lender and, if signed by Company, on Company.


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 an Event of Default or Potential
Event of Default if such action is taken or condition exists.


10.8                        Notices;
Effectiveness of Signatures.


Unless otherwise
specifically provided herein, any notice or other communication herein required
or permitted to be given shall be in writing and may be personally served, or
sent by telefacsimile or United States mail or courier service and shall be
deemed to have been given when delivered in person or by courier service, upon
receipt of telefacsimile in complete and legible form, or three Business Days
after depositing it in the United States mail with postage prepaid and properly
addressed; provided that notices to Administrative Agent, Swing Line
Lender and any Issuing Lender shall not be effective until received.  For the purposes hereof, the address of each
party hereto shall be as set forth under such party’s name on the signature
pages hereof or (i) as to Company and Administrative Agent, such other
address as shall be designated by such Person in a written notice delivered to
the other parties hereto and (ii) as to each other party, such other
address as shall be designated by such party in a written notice delivered to
Administrative Agent.  Electronic mail
and Internet and intranet websites may be used to distribute routine
communications, such as financial statements and other information, and to
distribute agreements and other documents to be signed by Administrative Agent,
Lenders and the Loan Parties. 
Administrative Agent or Company may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it, provided that approval of such
procedures may be limited to particular notices or communications.


Loan Documents and
notices under the Loan Documents may be transmitted and/or signed by
telefacsimile and by signatures delivered in ‘PDF’ format by electronic mail; provided,
however, that no signature with respect to any notice, request,
agreement, waiver,



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amendment or other
document that is intended to have binding effect may be sent by electronic
mail.  The effectiveness of any such
documents and signatures shall, subject to applicable law, have the same force
and effect as an original copy with manual signatures and shall be binding on
all Loan Parties, Administrative Agent and Lenders.  Administrative Agent may also require that
any such documents and signature be confirmed by a manually-signed copy
thereof; provided, however, that the failure to request or
deliver any such manually-signed copy shall not affect the effectiveness of any
facsimile document or signature.


10.9                        Survival of Representations, Warranties and
Agreements.


A.                                    All
representations, warranties and agreements made herein shall survive the
execution and delivery of this Agreement and the making of the Loans and the
issuance of the Letters of Credit hereunder.


B.                                    Notwithstanding
anything in this Agreement or implied by law to the contrary, the agreements of
Company set forth in subsections 2.6D, 2.7, 10.2, 10.3, 10.4, 10.17 and 10.18
and the agreements of Lenders set forth in subsections 9.2C, 9.4, 10.5 and
10.18 shall survive the payment of the Loans, the cancellation or expiration of
the Letters of Credit and the reimbursement of any amounts drawn thereunder,
and the termination of this Agreement.


10.10                 Failure or Indulgence Not Waiver; Remedies
Cumulative.


No failure or delay on
the part of Administrative Agent or any Lender in the exercise of any power,
right or privilege hereunder or under any other Loan 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.  All
rights and remedies existing under this Agreement and the other Loan Documents
are cumulative to, and not exclusive of, any rights or remedies otherwise
available.


10.11                 Marshalling; Payments Set Aside.


Neither Administrative
Agent nor any Lender shall be under any obligation to marshal any assets in
favor of Company or any other party or against or in payment of any or all of
the Obligations.  To the extent that
Company makes a payment or payments to Administrative Agent or Lenders (or to
Administrative Agent for the benefit 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 bankruptcy law, any other state or federal law,
common law or any equitable cause (and whether as a result of any demand,
settlement, litigation or otherwise), 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.



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10.12                 Severability.


In case any provision in
or obligation under this Agreement or the Notes 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.


10.13                 Obligations
Several; Independent Nature of Lenders’ Rights; Damage Waiver.


The obligations of
Lenders hereunder are several and no Lender shall be responsible for the
obligations or Commitments of any other Lender hereunder.  Nothing contained herein or in any other Loan
Document, and no action taken by Lenders pursuant hereto or thereto, shall be
deemed to constitute Lenders, or Lenders and Company, 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
of this Agreement and it shall not be necessary for any other Lender to be
joined as an additional party in any proceeding for such purpose.


To the extent permitted
by law, Company shall not assert, and hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in
connection with or as a result of this Agreement (including, without
limitation, subsection 2.1C hereof), any other Loan Document, any transaction
contemplated by the Loan Documents, any Loan or the use of proceeds
thereof.  No Indemnitee shall be liable
for any damages arising from the use by unintended recipients of any
information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with the
Loan Documents or the transactions contemplated thereby.


10.14                 Release
of Security Interest or Guaranty.


Upon the proposed sale or
other disposition of any Collateral to any Person (other than an Affiliate of
Company) that is permitted by this Agreement or to which Requisite Lenders have
otherwise consented, or the sale or other disposition of all of the Capital
Stock of a Subsidiary Guarantor to any Person (other than an Affiliate of
Company) that is permitted by this Agreement or to which Requisite Lenders have
otherwise consented, for which a Loan Party desires to obtain a security
interest release or a release of the Subsidiary Guaranty from Administrative
Agent, such Loan Party shall deliver an Officer’s Certificate (i) stating that
the Collateral or the Capital Stock subject to such disposition is being sold
or otherwise disposed of in compliance with the terms hereof and (ii)
specifying the Collateral or Capital Stock being sold or otherwise disposed of
in the proposed transaction.  Upon the
receipt of such Officer’s Certificate, Administrative Agent shall, at such Loan
Party’s expense, so long as Administrative Agent (a) has no reason to believe
that the facts stated in such Officer’s Certificate are not true and correct
and (b), if the sale or other disposition of such item of Collateral or Capital
Stock constitutes an Asset Sale, shall have received evidence satisfactory to
it that arrangements satisfactory to it have been made for delivery of the Net
Asset Sale Proceeds if and as required



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by subsection 2.4,
execute and deliver such releases of its security interest in such Collateral
or such Subsidiary Guaranty, as may be reasonably requested by such Loan Party.


10.15                 Applicable
Law.


THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN ANY SUCH LOAN DOCUMENT),
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 AND SECTION
5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE APPLICATION OF ANOTHER LAW.


10.16                 Construction
of Agreement; Nature of Relationship.


Each of the parties
hereto acknowledges that (i) it has been represented by counsel in the
negotiation and documentation of the terms of this Agreement, (ii) it has had
full and fair opportunity to review and revise the terms of this Agreement,
(iii) this Agreement has been drafted jointly by all of the parties hereto, and
(iv) neither Administrative Agent nor any Lender has any fiduciary relationship
with or duty to Company arising out of or in connection with this Agreement or
any of the other Loan Documents, and the relationship between Administrative
Agent and Lenders, on one hand, and Company, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor.  Accordingly, each of the parties hereto
acknowledges and agrees that the terms of this Agreement shall not be construed
against or in favor of another party.


10.17                 Consent
to Jurisdiction and Service of Process.


ALL JUDICIAL PROCEEDINGS BROUGHT
AGAINST COMPANY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY OBLIGATIONS HEREUNDER AND THEREUNDER, 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, COMPANY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES,
IRREVOCABLY


(I)                                    ACCEPTS
GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH
COURTS;


(II)                                WAIVES
ANY DEFENSE OF FORUM NON CONVENIENS;


(III)                            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 COMPANY AT
ITS ADDRESS PROVIDED IN ACCORDANCE WITH SUBSECTION 10.8;



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(IV)                           AGREES
THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS SUFFICIENT TO CONFER PERSONAL
JURISDICTION OVER COMPANY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND
OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT;


(V)                               AGREES
THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR TO BRING PROCEEDINGS AGAINST COMPANY IN THE COURTS OF ANY OTHER
JURISDICTION; AND


(VI)                           AGREES
THAT THE PROVISIONS OF THIS SUBSECTION 10.17 RELATING TO JURISDICTION AND VENUE
SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER NEW
YORK GENERAL OBLIGATIONS LAW SECTION 5-1402 OR OTHERWISE.


10.18                 Waiver
of Jury Trial.


EACH OF
THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER
RELATIONSHIP THAT IS BEING ESTABLISHED.  The scope of this waiver is intended to be
all-encompassing of any and all disputes that may be filed in any court and
that relate to the subject matter of this transaction, including contract
claims, tort claims, breach of duty claims and all other common law and
statutory claims.  Each party hereto
acknowledges that this waiver is a material inducement to enter into a business
relationship, that each has already relied on this waiver in entering into this
Agreement, and that each will continue to rely on this waiver in their 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 SUBSECTION 10.18 AND EXECUTED BY
EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF
THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO
THE LOANS MADE HEREUNDER.  In
the event of litigation, this Agreement may be filed as a written consent to a
trial by the court.


10.19                 Confidentiality.


Each Lender shall hold
all non-public information of a confidential nature obtained pursuant to the requirements
of this Agreement in accordance with such Lender’s customary procedures for
handling confidential information of this nature, it being understood



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and agreed by
Company that in any event a Lender may make disclosures (a) to its and its
Affiliates’ directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
information and instructed to keep such information confidential), (b) to
the extent requested by any Government Authority, (c) to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process, (d) to any other party to this Agreement, (e) in connection
with the exercise of any remedies hereunder or any suit, action or proceeding
relating to this Agreement or the enforcement of rights hereunder,
(f) subject to an agreement containing provisions substantially the same
as those of this subsection 10.19, to (i) any Eligible Assignee of or
participant in, or any prospective Eligible Assignee of or Participant in, any
of its rights or obligations under this Agreement, (ii) any pledgee referred to
in subsection 10.01D, or  (iii) any
direct or indirect contractual counterparty or prospective counterparty (or
such contractual counterparty’s or prospective counterparty’s professional
advisor) to any credit derivative transaction relating to obligations of
Company, (g) with the consent of Company, (h) to the extent such
information (i) becomes publicly available other than as a result of a
breach of this subsection 10.19 or (ii) becomes available to
Administrative Agent or any Lender on a nonconfidential basis from a source
other than Company or (i) to the National Association of Insurance
Commissioners or any other similar organization or any nationally recognized
rating agency that requires access to information about a Lender’s or its
Affiliates’ investment portfolio in connection with ratings issued with respect
to such Lender or its Affiliates; provided that, unless specifically
prohibited by applicable law or court order, each Lender shall notify Company
of any request by any Government Authority or representative thereof (other
than any such request in connection with any examination of the financial
condition or other routine examinations or inquiries of such Lender by such
Government Authority) for disclosure of any such non-public information prior
to disclosure of such information; and provided, further that in
no event shall any Lender be obligated or required to return any materials
furnished by Company or any of its Subsidiaries.  In addition, Administrative Agent and Lenders
may disclose the existence of this Agreement and information about this
Agreement to market data collectors, similar service providers to the lending
industry, and service providers to Administrative Agent and Lenders, and
Administrative Agent or any of its Affiliates may place customary “tombstone” advertisements (which may include any of
Company’s or its Subsidiaries’ trade names or corporate logos) in publications
of its choice (including without limitation “e-tombstones” published or
otherwise circulated in electronic form and related
hyperlinks to any of Company’s or its Subsidiaries’ corporate websites) at its
own expense.


10.20                 USA Patriot
Act.


Each Lender hereby notifies
Company that pursuant to the requirements of the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and
record information that identifies Loan Parties, which information includes the
name and address of each Loan Party and other information that will allow such
Lender to identify such Loan Party in accordance with the Act.



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10.21                 Counterparts;
Effectiveness.


This
Agreement and any amendments, waivers, consents or supplements hereto or in
connection herewith may be executed in any number of counterparts and by
different parties hereto in separate 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; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.  This Agreement shall become
effective upon the execution of a counterpart hereof by each of the parties
hereto.


10.22                 Reaffirmation.


Each Subsidiary
Guarantor has read this Agreement and consents to the terms hereof and further
hereby confirms and agrees that, notwithstanding the effectiveness of this
Agreement, the obligations of such Subsidiary Guarantor under, and the Liens
granted by such Subsidiary Guarantor as collateral security for the indebtedness,
obligations and liabilities evidenced by the Loan Documents pursuant to, each
of the Loan Documents to which
such Subsidiary Guarantor is a party shall not be impaired and each of the Loan Documents to which such
Subsidiary 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,
Company and the Subsidiary Guarantors hereby acknowledges and agrees that the
Secured Obligations under, and as defined in, the Security Agreement will
include all Obligations under, and as defined in, this Agreement.


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


[**Remainder of page
intentionally left blank**]



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IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be duly executed and delivered by their
respective officers thereunto duly authorized as of the date first written
above.


	
  COMPANY:

  	
   

  	
  BARE ESCENTUALS BEAUTY, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Leslie A. Blodgett

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Leslie A Blodgett

  
	
   

  	
   

  	
  Title:

  	
  President, Chief
  Executive Officer and

  Secretary

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
  71 Stevenson Street,
  22nd Floor

  
	
   

  	
   

  	
  San Francisco,  CA
   94105

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  HOLDINGS:

  	
   

  	
  BARE ESCENTUALS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Leslie A. Blodgett

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Leslie A Blodgett

  
	
   

  	
   

  	
  Title:

  	
  President, Chief
  Executive Officer and

  Secretary

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
  71 Stevenson Street, 22nd Floor

  
	
   

  	
   

  	
  San Francisco,  CA  94105

  
						



 



 S-1
 






 



 


	
  SUBSIDIARY GUARANTORS:

  	
   

  	
   

  	
   

  	
   

  
	
  (for purposes of subsection 10.22)

  	
   

  	
  MD FORMULATIONS, INC.

  
	
   

  	
   

  	
  ID DIRECT, INC.

  
	
   

  	
   

  	
  MD BEAUTY SALES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/ Leslie A. Blodgett

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
  Leslie A Blodgett

  
	
   

  	
   

  	
  Title:

  	
   

  	
  President, Chief Executive Officer and

  Secretary

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
  71 Stevenson Street, 22nd Floor

  
	
   

  	
   

  	
  San Francisco,  CA  94105

  



 



 S-2
 






 



 


	
  LENDERS:

  	
   

  
	
   

  	
   

  
	
   

  	
  BNP Paribas,

  
	
   

  	
  individually and as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Cecile Scherer

  
	
   

  	
   

  	
  Name:  Cecile
  Scherer

  
	
   

  	
   

  	
  Title: 
  Director, Merchant Banking Group

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ PJ de Filippis

  
	
   

  	
   

  	
  Name:  PJ de
  Filippis

  
	
   

  	
   

  	
  Title: 
  Managing Director

  



 


 



 S-3