WWW.EXFILE.COM, INC. -- 14807 -- CHATTEM, INC. -- EXHIBIT 10.1


    EXHIBIT
      10.1

    
 

    FIFTH
      AMENDMENT TO CREDIT AGREEMENT

    


    THIS
      FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"),
      dated
      as of December 22, 2006, is by and among CHATTEM,
      INC., a Tennessee corporation (the "Borrower"),
      each
      of the Borrower's Domestic Subsidiaries (individually a "Guarantor"
      and
      collectively with the Borrower, the "Credit
      Parties"),
      the
      Persons identified as lenders on the signature pages hereto (the "Lenders")
      and
      BANK OF AMERICA, N.A., as agent for the Lenders (in such capacity, the
      "Agent").

    


    W
      I T N E S S E T H

    


    WHEREAS,
      the
      Credit Parties, the Lenders, and the Agent are parties to that certain Credit
      Agreement dated as of February 26, 2004 (as amended from time to time, the
      "Existing
      Credit Agreement");

    


    WHEREAS,
      the
      Borrower has requested that the Lenders amend the Existing Credit Agreement;
      and

    


    WHEREAS,
      the
      Lenders have agreed to amend the Existing Credit Agreement on the terms and
      conditions hereinafter set forth.

    


    NOW,
      THEREFORE,
      in
      consideration of the agreements hereinafter set forth, and for other good and
      valuable consideration, the receipt and adequacy of which are hereby
      acknowledged, the parties hereto agree as follows:

    


    PART
      I

    DEFINITIONS

    


    SUBPART
      1.1 Certain
      Definitions. Unless
      otherwise defined herein or the context otherwise requires, the following terms
      used in this Amendment, including its preamble and recitals, have the following
      meanings:

    


    "Acquisition
      Documents"
      means
      the Asset Purchase Agreement and such other agreements, instruments and
      documents required to consummate the Jewel Acquisition.

    


    "Amended
      Credit Agreement"
      means
      the Existing Credit Agreement as amended hereby.

    


    "Asset
      Purchase Agreement"
      means
      that certain Asset Purchase Agreement dated as of October 5, 2006, among Johnson
      & Johnson, Pfizer Inc. and the Borrower, as amended by that certain letter
      agreement dated November 27, 2006.

    


    "Fifth
      Amendment Effective Date"
      means
      the date on which the conditions precedent set forth in Subpart 3.1 are
      satisfied.

    


    "JEWEL
      Acquisition"
      means
      the acquisition by the Borrower of the Purchased Assets pursuant to and in
      accordance with the Acquisition Documents.

    


    "Purchased
      Assets"
      has the
      meaning assigned to such term in the Asset Purchase Agreement.

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    SUBPART
      1.2 Other
      Definitions. Unless
      otherwise defined herein or the context otherwise requires, terms used in this
      Amendment, including its preamble and recitals, have the meanings provided
      in
      the Existing Credit Agreement.

    


    PART
      II

    AMENDMENTS
      TO EXISTING CREDIT AGREEMENT

    


    SUBPART
      2.1 Amendments
      to Existing Credit Agreement.
      The
      Existing Credit Agreement is hereby amended in its entirety to read in the
      form
      attached to this Amendment as Exhibit
      A.
      The
      modifications to the Existing Credit Agreement shall be effective as of the
      Fifth Amendment Effective Date and shall apply from such date (and not
      retroactively) unless otherwise specifically set forth in the Amended Credit
      Agreement.

    


    SUBPART
      2.2 Schedules
      and Exhibits.
      Those
      certain Schedules and Exhibits attached to this Amendment shall replace the
      corresponding Schedules and Exhibits to the Existing Credit Agreement or shall
      be added to the Existing Credit Agreement, as applicable. All other Schedules
      and Exhibits to the Existing Credit Agreement shall not be modified or otherwise
      affected.

    


    SUBPART
      2.3 Security
      Agreement.
      The
      first two sentences of Section 20(a) of the Security Agreement are hereby
      amended to read as follows:

    


    THIS
      SECURITY AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
      SHALL
      BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
      THE
      STATE OF NEW YORK. Any legal action or proceeding with respect to this Security
      Agreement may be brought in the courts of the State of New York sitting in
      New
      York City or the United States District Court of the Southern District and
      any
      appellate court thereof and, by execution and delivery of this Security
      Agreement, each Credit Party hereby irrevocably accepts for itself and in
      respect of its property, generally and unconditionally, the jurisdiction of
      such
      courts.

    


    SUBPART
      2.4 Pledge
      Agreement.
      The
      first two sentences of Section 8(a) of the Pledge Agreement are hereby amended
      to read as follows:

    


    THIS
      PLEDGE AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL
      BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
      THE
      STATE OF NEW YORK. Any legal action or proceeding with respect to this Pledge
      Agreement may be brought in the courts of the State of New York sitting in
      New
      York City or the United States District Court of the Southern District and
      any
      appellate court thereof and, by execution and delivery of this Pledge Agreement,
      each Pledgor hereby irrevocably accepts for itself and in respect of its
      property, generally and unconditionally, the jurisdiction of such
      courts.

    


    PART
      III

    CONDITIONS
      TO EFFECTIVENESS

    


    SUBPART
      3.1 Closing
      Conditions. This
      Amendment shall be and become effective as of the date on
      which
      the following conditions shall have been satisfied (in form and substance
      reasonably acceptable to the Agent):

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    (a) Executed
      Amendment.
      Receipt
      by the
      Agent
      of counterparts of this Amendment, which
      collectively shall have been duly executed on behalf of the Borrower, the
      Guarantors, the Lenders and the Agent;

    


    (b) Acquisition-Related
      Material Adverse Effect.
      There
      shall not have occurred any change, effect, event, circumstance, occurrence
      or
      state of facts, either alone or in combination, which has had or could
      reasonably be expected to have a material adverse effect on (i) the business,
      results of operations or financial condition of the Business (as defined in
      the
      Asset Purchase Agreement) or the Purchased Assets (as defined in the Asset
      Purchase Agreement), taken as a whole, or (ii) the ability of any Parent
      Divesting Entity (as defined in the Asset Purchase Agreement) to consummate
      the
      transactions contemplated by the Asset Purchase Agreement (collectively, an
      “Acquisition-Related
      Material Adverse Effect”);
      provided
      that
      none of the following changes, effects, events, circumstances, occurrences
      or
      states of facts shall be deemed, either alone or in combination with any other
      event specified in clauses (A) through (H) below, to constitute an
      Acquisition-Related Material Adverse Effect, or be taken into account in
      determining whether there has been or would reasonably be expected to be an
      Acquisition-Related Material Adverse Effect: (A) changes or effects in the
      general economic conditions or the securities, syndicated loan, credit or
      financial markets; (B) changes in generally accepted accounting principles;
      (C)
      changes or effects, including legal, tax or regulatory changes, that generally
      affect the industry in which the Business operates and that do not
      disproportionately affect the Business relative to other participants in such
      industry; (D) changes or effects that arise out of or are attributable to the
      commencement, occurrence, continuation or intensification of any war, sabotage,
      armed hostilities or acts of terrorism; (E) earthquakes, hurricanes or other
      natural disasters; (F) any failure by the Business to meet internal projections
      or forecasts for any period (it being understood that the facts or occurrences
      giving rise or contributing to any such failure may be deemed to constitute,
      or
      be taken into account in determining whether there has been or would reasonably
      be expected to be, an Acquisition-Related Material Adverse Effect); (G) changes
      or effects that arise out of or are attributable to the public announcement
      that
      Pfizer Inc. would pursue strategic options for its consumer healthcare business
      or the negotiation, execution, public announcement or performance of the
      Pfizer/J&J Purchase Agreement (as defined in the Asset Purchase Agreement)
      or the Asset Purchase Agreement, including the impact thereof on relationships,
      contractual or otherwise, with customers, suppliers, distributors, partners
      or
      employees; and (H) any matter disclosed in the schedules to the Asset Purchase
      Agreement where an adverse effect is reasonably apparent from the face of such
      disclosure.

    


    (c) Corporate
      Documents.
      Receipt
      by the Agent of the following:

    


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

    


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

    


    (iii) Resolutions.
      Copies
      of resolutions of the Board of Directors of each Credit Party approving and
      adopting this Amendment, the transactions contemplated therein and authorizing
      execution and delivery thereof, certified by a secretary or 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    assistant
      secretary of such Credit Party to be true and correct and in force and effect
      as
      of the Fifth Amendment Effective Date.

    


    (iv) Good
      Standing.
      Copies
      of certificates of good standing, existence or its equivalent with respect
      to
      each Credit Party certified as of a recent date by the appropriate Governmental
      Authorities of the state or other jurisdiction of incorporation.

    


    (d) Opinion
      of Counsel.
      Receipt
      by the Lenders of an opinion, or opinions (which shall cover, among other
      things, authority, legality, validity, binding effect, enforceability and
      attachment and perfection of liens), reasonably satisfactory to the Agent,
      addressed to the Agent and the Lenders and dated as of the Fifth Amendment
      Effective Date, from legal counsel to the Credit Parties.

    


    (e) Collateral.
      The
      Agent shall have received, in form and substance satisfactory to the
      Agent:

    


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

    


    (ii) searches
      of ownership of, and Liens on, intellectual property of each Credit Party in
      the
      appropriate governmental offices.

    


    (f) Consents.
      All
      governmental, shareholder and third party consents (including Hart-Scott-Rodino
      clearance, if required) and approvals necessary in connection with the
JEWEL
      Acquisition shall
      have been obtained; all such consents and approvals shall be in force and
      effect; and all applicable waiting periods shall have expired without any action
      being taken by any authority that could restrain, prevent or impose any material
      adverse condition on the JEWEL Acquisition or that could seek or threaten any
      of
      the foregoing, and no Requirement of Law shall be applicable which has, or
      could
      reasonably be expected to have, such effect.

    


    (g) Officer's
      Certificate.
      The
      Agent shall have received a certificate executed by the chief financial officer
      of the Borrower as of the Fifth Amendment Effective Date stating that,
      immediately after giving effect to this Amendment, the JEWEL Acquisition and
      all
      the transactions contemplated herein or therein, (1) the Borrower and each
      of
      its Subsidiaries is Solvent, (2) no Default or Event of Default exists under
      Section 9.1(a) or Section 9.1(f) of the Credit Agreement and (3) (A) all of
      the
      representations and warranties referenced in clause (i) of Subpart 3.1(k) are
      true and correct in all material respects and (B) all of the representations
      and
      warranties referenced in clause (ii) of Subpart 3.1(k) are true and correct
      in
      all material respects, subject to the proviso in such clause (ii) of such
      Subpart 3.1(k).

    


    (h) Fees
      and Expenses.
      Payment
      by the Credit Parties of all fees and expenses owed by them to the Lenders
      and
      the Agent. 

    


    (i) JEWEL
      Acquisition.
      Receipt
      by the Agent of (i)
      satisfactory evidence that the JEWEL Acquisition shall have been consummated
      in
      accordance with the Asset Purchase Agreement and applicable law (ii) a copy,
      certified by a Responsible Officer of the Borrower as true and complete, of
      the
      Acquisition Documents, together with all exhibits and schedules 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    thereto,
      which Asset Purchase Agreement has not been altered, amended or otherwise
      changed or supplemented in a manner adverse to the Lenders in any material
      respect or any condition therein material to the interests of the Lenders
      waived, in each case without the prior written consent of the Administrative
      Agent (which shall not be unreasonably withheld). 

    


    (j) No
      Default.
      No
      Default or Event of Default under Section 9.1(a) or Section 9.1(f) of the Credit
      Agreement shall exist or be continuing either prior to or after giving effect
      to
      the incurrence of the Term Loan on the Fifth Amendment Effective
      Date.

    


    (k) Representations
      and Warranties.
      (i) The
      representations and warranties made by the Credit Parties pursuant to Sections
      6.3, 6.4, 6.5, 6.7, 6.16, 6.17 and 6.30 of the Credit Agreement are true and
      correct in all material respects and (ii) all representations and warranties
      other than those referenced in clause (i) are true and correct in all material
      respects, except for, with respect to the representations and warranties
      referenced in this clause (ii), breaches of such representations and warranties
      that would not, individually or in the aggregate, have a material adverse effect
      on the business, results of operations or financial condition of the Borrower
      and its Subsidiaries, taken as a whole, provided
      that
      none of the changes, effects, events, circumstances, occurrences or states
      of
      fact of the type specified in clauses (A) through (H) of subsection (b) above
      (with all references therein to the Business being substituted with references
      to the Borrower) shall be deemed, either alone or in combination with any other
      such event, to constitute a material adverse effect; and provided further
      that the
      only representations relating to the Business (as defined in the Asset Purchase
      Agreement) the making of which shall be a condition precedent hereof shall
      be
      such of the representations made by the Parent Divesting Entities (as defined
      in
      the Asset Purchase Agreement) as are material to the interests of the Lenders,
      but only to the extent that the Borrower has the right to terminate its
      obligations under the Asset Purchase Agreement as a result of a breach of such
      representations in the Asset Purchase Agreement. 

    


    (l) Fixed
      Charge Coverage Ratio.
      Receipt
      by the Agent of a calculation satisfactory to the Agent calculating the Fixed
      Charge Coverage Ratio (as defined in the Subordinated Indenture) for the
      Borrower’s most recently ended four fiscal quarters for which internal financial
      statements are available at an amount of at least 2.5 to 1.0 on a pro forma
      basis after giving effect to the incurrence of the Term Loan on the Fifth
      Amendment Effective Date.

    


    (m) Other.
      Receipt
      by the Agent of such other documents, instruments, agreements or information
      as
      reasonably requested by any Agent relating to the Credit Parties and the
      transactions contemplated by this Amendment.

    


    PART
      IV

    MISCELLANEOUS

    


    SUBPART
      4.1 Representations
      and Warranties.
      Each
      Credit Party hereby represents and warrants to the Agent and the Lenders that
      (a) no Default or Event of Default exists on and as of the date hereof, (b)
      each
      Credit Party has the requisite corporate power and authority to execute, deliver
      and perform this Amendment and (c) the representations and warranties set forth
      in Section
      6
      of the
      Amended Credit Agreement are true and correct in all material respects as of
      the
      date hereof (except for those which expressly relate to an earlier date). Each
      Credit Party acknowledges and confirms that the Borrower's obligations to repay
      the outstanding principal amount of the Loans are unconditional and not subject
      to any offsets, defenses or counterclaims.

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    SUBPART
      4.2 Acknowledgment.
      Each
      Guarantor hereby acknowledges and consents to all of the terms and conditions
      of
      this Amendment and agrees that this Amendment does not operate to reduce or
      discharge the Guarantors' obligations under the Amended Credit Agreement or
      the
      other Credit Documents.

    


    SUBPART
      4.3 Cross-References.
      References in this Amendment to any Part or Subpart are, unless otherwise
      specified, to such Part or Subpart of this Amendment.

    


    SUBPART
      4.4 Credit
      Document.
      This
      Amendment shall constitute a Credit Document under the terms of the Amended
      Credit Agreement.

    


    SUBPART
      4.5 References
      in Other Credit Documents.
      All
      references to the Credit Agreement in each of the Credit Documents shall
      hereafter mean the Existing Credit Agreement as amended by this Amendment.
      Except as specifically amended hereby or otherwise agreed, the Amended Credit
      Agreement is hereby ratified and confirmed and shall remain in full force and
      effect according to its terms.

    


    SUBPART
      4.6 Counterparts/Telecopy.
      This
      Amendment may be executed by the parties hereto in several counterparts, each
      of
      which shall be deemed to be an original and all of which shall constitute
      together but one and the same agreement. Delivery of executed counterparts
      of
      this Amendment by telecopy shall be effective as an original and shall
      constitute a representation that an original shall be delivered.

    


    SUBPART
      4.7 Governing
      Law.
      THIS
      AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE
      INTERNAL LAWS OF THE STATE OF NEW YORK.

    


    SUBPART
      4.8 Successors
      and Assigns.
      This
      Amendment shall be binding upon and inure to the benefit of the parties hereto
      and their respective successors and assigns.

    


    SUBPART
      4.9 New
      Lenders.
      From
      and after the Fifth Amendment Effective Date, by execution of this Amendment,
      each Person identified as a “Lender” on the signature pages hereto that is not
      already a Lender under the Existing Credit Agreement (a “New
      Lender”)
      hereby
      acknowledges, agrees and confirms that, by its execution of this Amendment,
      such
      Person will be deemed to be a party to the Existing Credit Agreement as amended
      hereby and a “Lender” for all purposes of the Existing Credit Agreement as
      amended hereby, and shall have all of the obligations of a Lender thereunder
      as
      if it had executed the Existing Credit Agreement, as amended hereby. Such Person
      hereby ratifies, as of the date hereof, and agrees to be bound by, all of the
      terms, provisions and conditions applicable to the Lenders contained in the
      Existing Credit Agreement, as amended hereby. The Commitment Percentage of
      each
      Lender as of the Fifth Amendment Effective Date is set forth opposite the name
      of such Lender on Schedule 1.1(a) attached hereto. 

     

    


    [remainder
      of page intentionally left blank]

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    IN
      WITNESS WHEREOF the Borrower, the Guarantors and the Lenders have caused this
      Amendment to be duly executed on the date first above written.

    


    BORROWER:

    CHATTEM,
      INC.,

    a
      Tennessee corporation

    


    By:
      /s/Robert E. Bosworth

    Name:
      Robert E. Bosworth

    Title:
      President and Chief Operating Officer

    


    


    


    GUARANTORS:          SIGNAL
      INVESTMENT & MANAGEMENT CO.,

    a
      Delaware corporation

    


    By:
      /s/Robert E. Bosworth      

    Name:
      Robert E. Bosworth

    Title:
      President

    


    


    


    SUNDEX,
      LLC,

    a
      Tennessee limited liability company

    


    By:
      /s/Robert E. Bosworth

    Name: 
      Robert E. Bosworth

    Title:
      President

    


    


    


    CHATTEM
      (CANADA) HOLDINGS, INC.,

    a
      Delaware corporation

    


    By:
      /s/Robert E. Bosworth

    Name:
      Robert E. Bosworth

    Title:
      President

     

    
      
        
          CHATTEM,
            INC.

          FIFTH
            AMENDMENT

        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    AGENT:            BANK
      OF AMERICA, N.A.,

    
      	 	 	 	 	 	
              in
                its capacity as Agent

            


    

     

    By:
      /s/ Ronaldo Naval

    Name:
      Ronaldo Naval

    Title:
      Vice President

    


    


    


    LENDERS:                                                           BANK
      OF AMERICA, N.A.,
      

    in
      its
      capacity as a Lender

    


    By:
      /s/ John M. Hall

    Name:
      John M. Hall

    Title:
      Senior Vice President

    


    


     

    SUNTRUST
      BANK

     

    By: /s/
      Kap Yarbrough     

    Name:
      Kap
      Yarbrough

    Title:
      Banking Officer

    


     

     

    BRANCH
      BANKING AND TRUST COMPANY

     

    By:
      /s/ R. Andrew Beam      

    Name:
      R.
      Andrew Beam

    Title:
      Senior Vice President

    


    


     

    NATIONAL
      CITY BANK

     

    By: /s/
      Kevin L. Anderson      

    Name:
      Kevin L. Anderson

    Title:
      Senior Vice President

    


    


    


    
      
        
          CHATTEM,
            INC.

          FIFTH
            AMENDMENT

        

      

      
        
        

        
          

        

      

      
        
        

      

    



    WACHOVIA
      BANK, NATIONAL ASSOCIATION

     

    By: /s/
      Susan T. Gallagher      

    Name:
      Susan T. Gallagher

    Title:
      Vice President

    


    


     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    
 

    
       



    


    
      
        
          CHATTEM,
            INC.

          FIFTH
            AMENDMENT

        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    EXHIBIT
      A

    


    
 

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    

 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Schedule
      1.1(a)

    


    COMMITMENT
      PERCENTAGES

    


    


    
      	
               

              Lender

            	
               

              Revolving
                Commitment

            	
              Revolving
                Loan Commitment Percentage

            	
               

              Term
                Loan Commitment

            	
              Term
                Loan Commitment Percentage

            
	 	 	 	 	 
	
              Bank
                of America, N.A.

            	
              $45,000,000

            	
              45.000000000%

            	
              $300,000,000

            	
              100.000000000%

            
	
              National
                City Bank

            	
              $20,000,000

            	
              20.000000000%

            	 	 
	
              Branch
                Banking and Trust Company

            	
              $15,000,000

            	
              15.000000000%

            	 	 
	
              SunTrust
                Bank

            	
              $10,000,000

            	
              10.000000000%

            	 	 
	
              Wachovia
                Bank, 

              National
                Association

            	
              $10,000,000

            	
              10.000000000%

            	 	 
	 	 	 	 	 
	
              Total

            	
              $100,000,000

            	
              100.000000000%

            	
              $300,000,000

            	
              100.000000000%

            


    

    


    


    
 

     

     

     

     

     

     

     

     

     

     

     

     

    

 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Schedule
      11.2

    


    PROCESSING
      AND RECORDATION FEES

    


    The
      Administrative Agent will charge to the assigning Lender a processing and
      recordation fee (an “Assignment
      Fee”)
      in the
      amount of $3,500 for each assignment; provided,
      however,
      that in
      the event of two or more concurrent assignments to members of the same Assignee
      Group (which may be effected by a suballocation of an assigned amount among
      members of such Assignee Group) or two or more concurrent assignments by members
      of the same Assignee Group to a single Eligible Assignee (or to an Eligible
      Assignee and members of its Assignee Group), the Assignment Fee will be $3,500
      plus the amount set forth below:

    


    
      	
              Transaction

            	
              Assignment
                Fee

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

               

            	
              -0-

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

            	
              $500

            


    

    


    


    
 

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    

 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Exhibit
      2.1

    


    FORM
      OF NOTICE OF BORROWING

    


    Date:
      __________, 20___

    


    To: Bank
      of
      America, N.A., as Agent

    


    
      	
              Re:

            	
              Credit
                Agreement dated as of February 26, 2004 among Chattem, Inc. (the
                "Borrower") the Domestic Subsidiaries of the Borrower from time to
                time
                party thereto, Bank of America, N.A., as Agent and the Lenders party
                thereto (as the same may be amended, modified, extended or restated
                from
                time to time, the "Credit Agreement").


            


    

    


    
      	
              1.

            	
              This
                Notice of Borrowing is made pursuant to the terms of the Credit Agreement.
                All capitalized terms used herein unless otherwise defined shall
                have the
                meanings set forth in the Credit
                Agreement.

            


    

    


    
      	2.	
              The
                undersigned hereby requests (select
                one):

            


    

    


    o 
A
      borrowing of
      Revolving Loans 

    


    o 
A
      borrowing of the Term
      Loan 

    


    o 
A
      conversion or continuation of
      Revolving Loans 

    


    o 
A
      conversion or continuation of
      the Term Loan

    


    
      	3.	
              On
                _______________, 20___ (which is a Business
                Day).

            


    

    


    
      	4.	
              In
                the amount of $__________.

            


    

    


    
      	
              5.

            	
              The
                interest rate option applicable to the requested Revolving Loans
                shall be:
                

            


    

    


    a. ________ the
      Adjusted Base Rate

    


    b. ________ the
      Adjusted Eurodollar Rate for an Interest Period of:

    


    
      	 	 	 	 	
              ________
                one month

            


    

    
      	 	 	 	 	
              ________
                two months

            


    

    
      	 	 	 	 	
              ________
                three months 

            


    

    
      	 	 	 	 	
              ________
                six months

            


    

     

    
      	
              6.

            	
              The
                representations and warranties made by the Credit Parties in the
                Credit
                Documents are true and correct in all material respects at and as
                if made
                on the date hereof.

            


    

    


    
      	
              7.

            	
              As
                of the date hereof, no Default or Event of Default has occurred and
                is
                continuing or would be caused by this Notice of
                Borrowing.

            


    

    


    
      	
              8.

            	
              No
                circumstances, events or conditions have occurred since the Closing
                Date
                which would have a Material Adverse Effect.


            


    

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
 

    
      	
              9.

            	
              After
                giving effect to such Borrowing of Revolving Loans, the sum of the
                Revolving Loans outstanding plus
                LOC Obligations outstanding plus
                the Swingline Loans outstanding shall not exceed the Revolving Commitment
                Amount.

            


    

    


    
      	
              10.

            	
              The
                incurrence by the Borrower of the requested Loan is permitted by
                the
                Subordinated Indenture, including Section 4.09 thereof, and such
                requested
                Loan shall constitute "Senior Indebtedness" as defined
                therein.

            


    

    


    


    


    CHATTEM,
      INC.

    


    By:
      _______________________________

    Name:
      _____________________________

    Title:
      ______________________________

    


    


     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    


 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Exhibit
      2.1(b)

    


    FORM
      OF INCREMENTAL TERM LOAN LENDER JOINDER AGREEMENT

    


    THIS
      INCREMENTAL
      TERM LOAN LENDER
      JOINDER AGREEMENT dated as of __________, 200__ (this “Agreement”)
      is by
      and among each of the Persons identified as “Incremental Term Loan Lenders” on
      the signature pages hereto (each, an “Incremental
      Term Loan Lender”),
      Chattem,
      Inc., a Tennessee corporation (the “Borrower”),
      the
      Guarantors, and Bank of America, N.A., as Agent.
      Capitalized terms used but not otherwise defined herein have the meanings
      provided in the Credit Agreement.

    


    W
      I T N E
      S S E T H

    


    WHEREAS,
      pursuant to that certain Credit Agreement dated as of February 26, 2004 (as
      amended, modified, supplemented, increased or extended from time to time, the
      “Credit
      Agreement”)
      among
      the Borrower, the Guarantors, the Lenders and the Agent, the Lenders have agreed
      to provide the Borrower with a revolving credit and term loan
      facility;

    


    WHEREAS,
      pursuant to Section
      2.1(c)
      of the
      Credit Agreement, the Borrower has requested that each Incremental Term Loan
      Lender provide a portion of the Incremental Term Loan under the Credit
      Agreement; and

    


    WHEREAS,
      each Incremental Term Loan Lender has agreed to provide a portion of the
      Incremental Term Loan on the terms and conditions set forth herein and to become
      an “Incremental Term Loan Lender” under the Credit Agreement in connection
      therewith; 

    


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

    


    1. 
Each
      Incremental Term Loan Lender severally agrees to make its portion of the
      Incremental Term Loan in a single advance to the Borrower on the date hereof
      in
      the amount of its respective Incremental Term Loan Commitment; provided
      that,
      after giving effect to such advances, the aggregate principal amount of the
      Incremental Term Loan shall not exceed [________________ MILLION DOLLARS
      ($____________)]. The Incremental Term Loan Commitment and Commitment Percentage
      for each of the Incremental Term Loan Lenders shall be as set forth on
Schedule
      2.01
      attached
      hereto. The existing Schedule
      1.1(a)
      to the
      Credit Agreement shall be deemed to be amended to include the information set
      forth on Schedule
      1.1(a)
      attached
      hereto, which reflects the commitments and commitment percentages of the
      Incremental Term Loan Lenders, pursuant to Section
      2.1(c)
      of the
      Credit Agreement. 

    


    2. 
The
      Applicable Percentage with respect to the Incremental Term Loan shall be (a)
      [_______%], with respect to Eurodollar Loans, and (b) [_______%], with respect
      to Base Rate Loans.

    


    3. 
The
      Incremental Term Loan Maturity Date shall be [   ].

    


    4. 
The
      Borrower shall repay to the Incremental Term Loan Lenders the principal amount
      of the Incremental Term Loan in quarterly installments on the dates set forth
      below as follows:

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
 

    
      	 	 	 	 
	
               

              Date

            	
              Principal

              Amortization
                Payment

            	
               

              Date

            	
              Principal

              Amortization
                Payment

            
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	 	
              Incremental
                Term Loan

              Maturity
                Date

            	
               

              Outstanding
                Amount

            
	
              Total:

            	 


    

    


    5. 
Each
      Incremental Term Loan Lender (a) represents and warrants that (i) it
      has full power and authority, and has taken all action necessary, to execute
      and
      deliver this Agreement and to consummate the transactions contemplated hereby
      and to become a Incremental Term Loan Lender under the Credit Agreement,
      (ii) it meets all requirements of an Eligible Assignee under the Credit
      Agreement (subject to receipt of such consents as may be required under the
      Credit Agreement), (iii) from and after the date hereof, it shall be bound
      by the provisions of the Credit Agreement as a Incremental Term Loan Lender
      thereunder and shall have the obligations of a Incremental Term Loan Lender
      thereunder, (iv) it has received a copy of the Credit Agreement, together
      with copies of the most recent financial statements delivered pursuant to
Section 7.1
      thereof,
      as applicable, and such other documents and information as it has deemed
      appropriate to make its own credit analysis and decision to enter into this
      Agreement on the basis of which it has made such analysis and decision
      independently and without reliance on the Agent or any other Incremental Term
      Loan Lender, and (v) if it is a foreign Lender, attached hereto is any
      documentation required to be delivered by it pursuant to the terms of the Credit
      Agreement; and (b) agrees that (i) it will, independently and without
      reliance on the Agent or any other Lender, and based on such documents and
      information as it shall deem appropriate at the time, continue to make its
      own
      credit decisions in taking or not taking action under the Credit Documents,
      and
      (ii) it will perform in accordance with their terms all of the obligations
      which by the terms of the Credit Documents are required to be performed by
      it as
      a Incremental Term Loan Lender.

    


    6. 
Each
      of
      the Agent, the Borrower, and the Guarantors agrees that, as of the date hereof,
      each Incremental Term Loan Lender shall (a) be a party to the Credit Agreement
      and the other Credit Documents, (b) be an “Incremental Term Loan Lender” for all
      purposes of the Credit Agreement and the other Credit Documents and (c) have
      the
      rights and obligations of an Incremental Term Loan Lender under the Credit
      Agreement and the other Credit Documents.

    


    7. 
The
      address of each Incremental Term Loan Lender for purposes of all notices and
      other communications is as set forth on the Administrative Questionnaire
      delivered by such Incremental Term Loan Lender to the Agent.

    


    8. 
This
      Agreement may be executed in any number of counterparts and by the various
      parties hereto in separate counterparts, each of which when so executed shall
      be
      deemed to be an original and all of which taken together shall constitute one
      contract. Delivery of an executed counterpart of this Agreement by telecopier
      shall be effective as delivery of a manually executed counterpart of this
      Agreement.

    


    9. 
THIS
      AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE
      WITH
      THE LAWS OF THE STATE OF NEW YORK.

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    



    IN
      WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
      executed by a duly authorized officer as of the date first above
      written.

    


    INCREMENTAL
      TERM 

    LOAN
      LENDERS:       

    


    By:
      ___________________________________

    Name:

    Title:

    


    


    BORROWER:
             CHATTEM,
      INC., 

    a
      Tennessee corporation

    


    By:___________________________________

    Name:

    Title:

    


    


    GUARANTORS:                                 
      SIGNAL
      INVESTMENT & MANAGEMENT CO.,

    a
      Delaware corporation

    


    By:___________________________________

    Name:

    Title:

    


    


    


    SUNDEX,
      LLC,

    a
      Tennessee limited liability company

     

    By:___________________________________

    Name:

    Title:

    


    


    


    CHATTEM
      (CANADA) HOLDINGS, INC.,

    a
      Delaware corporation

    


    By:___________________________________

    Name:

    Title:

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


    Accepted
      and Agreed:

    


    BANK
      OF
      AMERICA, N.A., 

    as
      Agent


     

    By:___________________________________

    Name:

    Title:

    


    


     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Exhibit
      2.6(c)

    


    FORM
      OF TERM NOTE

    


    _________________

    


    FOR
      VALUE
      RECEIVED, the undersigned (the “Borrower”),
      hereby promises to pay to _____________________ or registered assigns (the
      “Lender”),
      in
      accordance with the provisions of the Credit Agreement (as hereinafter defined),
      the principal amount of the Term Loan made by the Lender to the Borrower under
      that certain Credit Agreement, dated as of February 26, 2004 (as amended,
      restated, extended, supplemented or otherwise modified in writing from time
      to
      time, the "Agreement;"
      the
      terms defined therein being used herein as therein defined), among the Borrower,
      the Guarantors from time to time party thereto, the Lenders from time to time
      party thereto and Bank of America, N.A., as Agent. Capitalized terms used but
      not otherwise defined herein have the meanings provided in the Credit
      Agreement.

    


    The
      Borrower promises to pay interest on the unpaid principal amount of the Term
      Loan from the date of the Term Loan until such principal amount is paid in
      full,
      at such interest rates and at such times as provided in the Credit Agreement.
      All payments of principal and interest shall be made to the Agent for the
      account of the Lender in Dollars in immediately available funds at the Agent’s
      Office. If any amount is not paid in full when due hereunder, such unpaid amount
      shall bear interest, to be paid upon demand, from the due date thereof until
      the
      date of actual payment (and before as well as after judgment) computed at the
      per annum rate set forth in the Credit Agreement.

    


    This
      Term
      Note is one of the Term Notes referred to in the Credit Agreement, is entitled
      to the benefits thereof and may be prepaid in whole or in part subject to the
      terms and conditions provided therein. Upon the occurrence and continuation
      of
      one or more of the Events of Default specified in the Credit Agreement, all
      amounts then remaining unpaid on this Term Note shall become, or may be declared
      to be, immediately due and payable all as provided in the Credit Agreement.
      The
      Term Loan made by the Lender shall be evidenced by one or more loan accounts
      or
      records maintained by the Lender in the ordinary course of business. The Lender
      may also attach schedules to this Term Note and endorse thereon the date, amount
      and maturity of the Term Loan and payments with respect thereto.

    


    The
      Borrower, for itself, its successors and assigns, hereby waives diligence,
      presentment, protest and demand and notice of protest, demand, dishonor and
      nonpayment of this Term Note.

    


    THIS
      TERM
      NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
      STATE
      OF NEW YORK.

    
 

     

     

     

     

     

     

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
 

    CHATTEM,
      INC.,

    


     

    By:
      ______________________________________

    Name:  
      ___________________________________

    Title:
      _____________________________________       

    


     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Exhibit
      2.6(d)

    


    FORM
      OF INCREMENTAL TERM NOTE

    


    _________________

    


    FOR
      VALUE
      RECEIVED, the undersigned (the “Borrower”),
      hereby promises to pay to _____________________ or registered assigns (the
      “Incremental
      Term Loan Lender”),
      in
      accordance with the provisions of the Credit Agreement (as hereinafter defined),
      the principal amount of the Incremental Term Loan made by the Incremental Term
      Loan Lender to the Borrower under that certain Credit Agreement dated as of
      February 26, 2004 (as amended, modified, supplemented or extended from time
      to
      time, the “Credit
      Agreement”)
      among
      the Borrower, the Guarantors from time to time party thereto, the Lenders from
      time to time party thereto and Bank of America, N.A., as Agent. Capitalized
      terms used but not otherwise defined herein have the meanings provided in the
      Credit Agreement.

    


    The
      Borrower promises to pay interest on the unpaid principal amount of the
      Incremental Term Loan from the date of the Incremental Term Loan until such
      principal amount is paid in full, at such interest rates and at such times
      as
      provided in the Incremental Term Loan Joinder Agreement. All payments of
      principal and interest shall be made to the Agent for the account of the
      Incremental Term Loan Lender in Dollars in immediately available funds at the
      Agent’s Office. If any amount is not paid in full when due hereunder, such
      unpaid amount shall bear interest, to be paid upon demand, from the due date
      thereof until the date of actual payment (and before as well as after judgment)
      computed at the per annum rate set forth in the Credit Agreement.

    


    This
      Incremental Term Note is one of the Incremental Term Notes referred to in the
      Credit Agreement, is entitled to the benefits thereof and may be prepaid in
      whole or in part subject to the terms and conditions provided therein. Upon
      the
      occurrence and continuation of one or more of the Events of Default specified
      in
      the Credit Agreement, all amounts then remaining unpaid on this Incremental
      Term
      Note shall become, or may be declared to be, immediately due and payable all
      as
      provided in the Credit Agreement. The Incremental Term Loan made by the
      Incremental Term Loan Lender shall be evidenced by one or more loan accounts
      or
      records maintained by the Incremental Term Loan Lender in the ordinary course
      of
      business. The Incremental Term Loan Lender may also attach schedules to this
      Incremental Term Note and endorse thereon the date, amount and maturity of
      the
      Incremental Term Loan and payments with respect thereto.

    


    The
      Borrower, for itself, its successors and assigns, hereby waives diligence,
      presentment, protest and demand and notice of protest, demand, dishonor and
      nonpayment of this Incremental Term Note.

    


    THIS
      INCREMENTAL TERM NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
      THE
      LAWS OF THE STATE OF NEW YORK.

    


    CHATTEM,
      INC.,

    a
      Tennessee corporation

    


    By:
      ___________________________________

    Name:

    Title:

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Exhibit
      7.1(c)

    


    FORM
      OF OFFICER’S CERTIFICATE

    


    For
      the
      fiscal quarter ended _________________, 200__.

    


    I,
      ______________________, chief financial officer [or chief accounting officer]
      of
      Chattem, Inc. (the “Borrower”)
      hereby
      certify that, with respect to that certain Credit Agreement dated as of February
      26, 2004 (as it may be amended, modified, extended or restated from time to
      time, the “Credit
      Agreement”;
      all of
      the defined terms in the Credit Agreement are incorporated herein by reference)
      among the Borrower, the other Credit Parties party thereto, the Lenders party
      thereto and Bank of America, N.A., as Agent:

    


    [Use
      the
      following paragraph a for fiscal year-end financial statements:]

    


    a. 
Attached
      hereto as Schedule
      1
      are
      calculations demonstrating compliance by the Credit Parties with the financial
      covenants contained in Section 7.12 of the Credit Agreement as of the end of
      the
      fiscal period referred to above and a calculation of Excess Cash Flow for the
      fiscal year ended as of the above date.

    


    [Use
      the
      following paragraph a for fiscal quarter-end financial statements:]

    


    a. 
Attached
      hereto as Schedule
      1
      are
      calculations demonstrating compliance by the Credit Parties with the financial
      covenants contained in Section 7.12 of the Credit Agreement as of the end of
      the
      fiscal period referred to above.

    


    


    b. 
No
      Default or Event of Default has occurred under the Credit Agreement.1  

     

    c. 
The
      Borrower - prepared quarterly financial statements which accompany this
      certificate fairly present in all material respects the financial condition
      of
      the Borrower and its Subsidiaries and have been prepared in accordance with
      GAAP, subject to changes resulting from normal year-end audit
      adjustments.

    


     

    


    This
      ______ day of ___________, ____.

    


    


    CHATTEM,
      INC.

    


                                    _______________________________________________

    Chief
      Financial Officer [or Chief 

    Accounting
      Officer]

     

    ____________________________

     

    1    
      If a Default or Event of Default shall have occurred an explanation of such
      Default or Event of Default shall be provided on a separate page together with
      an explanation of the action taken or proposed to be taken by the Credit Parties
      with respect thereto.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Schedule
      1

    


    

      
        	
                1.

              	
                Fixed
                  Charge Coverage Ratio

              	 	 	 	 
	 	 	 	 	 	 	 
	 	
                (a)

              	
                EBITDA

              	 	
                $
                  

              	 	 
	 	 	 	 	 	 	 
	 	
                (b)

              	
                Capital
                  Expenditures

              	 	
                $

              	 	 
	 	 	 	 	 	 	 
	 	
                (c)

              	
                Taxes
                  paid in cash

              	 	
                $

              	 	 
	 	 	 	 	 	 	 
	 	
                (d)

              	
                EBITDA
                  minus

              	 	 	 	 
	 	 	
                Capital
                  Expenditures minus

              	 	 	 	 
	
                 

              	 	
                Taxes
                  paid in cash

              	 	 	 	 
	 	 	
                [(a)
                  - (b) - (c)]

              	 	
                $

              	 	 
	 	 	 	 	 	 	 
	 	
                (e)

              	
                cash
                  Interest Expense

              	 	
                $

              	 	 
	 	 	 	 	 	 	 
	 	
                (f)

              	
                Scheduled
                  Funded Debt 

              	 	 	 	 
	 	 	
                Payments

              	 	
                $

              	 	 
	 	 	 	 	 	 	 
	 	
                (g)

              	
                cash
                  dividends

              	 	
                $

              	 	 
	 	 	 	 	 	 	 
	 	
                (h)

              	
                [(f)
                  + (g) + (h)]

              	 	
                $

              	 	 
	 	 	 	 	 	 	 
	 	
                (i)

              	
                Fixed
                  Charge Coverage

              	 	 	 	 
	 	 	
                Ratio
                  [(d) / (h)]

              	 	
                :1.0

              	
              	 
	 	 	 	 	 	 	 
	
                2.

              	
                Leverage
                  Ratio

              	 	 	 	 
	 	 	 	 	 	 	 
	 	
                (a)

              	
                Funded
                  Debt

              	 	
                $

              	 	 
	 	 	 	 	 	 	 
	 	
                (b)

              	
                EBITDA

              	 	
                $

              	 	 
	 	 	 	 	 	 	 
	 	
                (c)

              	
                Funded
                  Debt to

              	 	 	 	 
	 	 	
                EBITDA
                  Ratio

              	 	 	 	 
	 	 	
                [(a)
                  / (b)]

              	 	
                :1.0

              	
              	 
	 	 	 	 	 	 	 
	
                3.

              	
                Senior
                  Secured Leverage Ratio

              	 	 	 	 
	 	 	 	 	 	 	 
	 	
                (a)

              	
                Funded
                  Debt secured 

              	 	 	 	 
	 	 	
                by
                  a Lien

              	 	
                $

              	 	 
	 	 	 	 	 	 	 
	
              	
                
                  (b)

                

              	
                
                  EBITDA

                

              	 	
                $

              	 	 
	 	 	 	 	 	 	 
	 	
                (c)

              	
                Senior
                  Leverage Ratio

              	 	 	 	 
	 	 	
                [(a)
                  / (b)]

              	 	
                :1.0

              	
              	 


      

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      
        	 	 	 	 	 	 	 
	
                4.

              	
                Brand
                  Value

              	 	 	 	 
	 	 	 	 	 	 	 
	 	
                (a)

              	
                fair
                  market value of all brand 

              	 	
                 

              	 	 
	
                 

              	
                 

              	
                or
                  product lines

              	 	
                $

              	 	 
	 	 	 	 	 	 	 
	 	
                (b)

              	
                Senior
                  Secured Indebtedness 

              	 	
                $

              	 	 
	 	 	 	 	 	 	 
	 	
                (c)

              	
                ratio
                  of brand value to 

              	 	 	 	 
	 	 	
                Senior
                  Secured Indebtedness

              	 	 	 	 
	 	 	
                [(a)/(b)]

              	 	
                :1.0

              	
              	 


      

    

     

    [include
      the follow calculation for fiscal year-end financial statements:]

     

    

      
        	
                5.

              	
                Excess
                  Cash Flow

              	 	 	 
	 	 	 	 	 	 
	 	
                (a)

              	
                EBITDA

              	 	
                $

              	 
	 	 	 	 	 	 
	 	
                (b)

              	
                Capital
                  Expenditures

              	 	 	 
	 	 	
                paid
                  in cash

              	 	
                $

              	 
	 	 	 	 	 	 
	 	
                (c)

              	
                cash
                  consideration paid 

              	 	 	 
	 	 	
                in
                  connection with a

              	 	 	 
	 	 	
                Permitted
                  Acquisition

              	 	
                $

              	 
	 	 	 	 	 	 
	 	
                (d)

              	
                cash
                  Interest Expense

              	 	
                $

              	 
	 	 	 	 	 	 
	 	
                (e)

              	
                Taxes
                  paid in cash

              	 	
                $

              	 
	 	 	 	 	 	 
	
              	
                (f)

              	
                Scheduled
                  Funded Debt 

              	 	 	 
	 	 	
                Payments

              	 	
                $

              	 
	
                 

              	 	 	 	 	 
	
              	
                (g)

              	
                voluntary
                  prepayments

              	 	 	 
	 	
              	
                
                  made
                    on the Term Loan

                

              	 	
                $

              	 
	 	 	 	 	 	 
	
              	
                (h)

              	
                Excess
                  Cash Flow

              	 	 	 
	 	 	
                [(a)
                  - (b) - (c) - (d) 

              	 	 	 
	
              	
              	
                -
                  (e) - (f) - (g)]

              	 	
                $

              	 


      

    

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Exhibit
      11.3

    


    FORM
      OF ASSIGNMENT AND ASSUMPTION

    


    This
      Assignment and Assumption (this "Assignment
      and Assumption")
      is
      dated as of the Effective Date set forth below and is entered into by and
      between [Insert
      name of Assignor]
      (the
      "Assignor")
      and
      [Insert
      name of Assignee]
      (the
      "Assignee").
      Capitalized terms used but not defined herein shall have the meanings given
      to
      them in the Credit Agreement identified below (the "Credit
      Agreement"),
      receipt of a copy of which is hereby acknowledged by the Assignee. The Standard
      Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed
      to
      and incorporated herein by reference and made a part of this Assignment and
      Assumption as if set forth herein in full.

    


    For
      an
      agreed consideration, the Assignor hereby irrevocably sells and assigns to
      the
      Assignee, and the Assignee hereby irrevocably purchases and assumes from the
      Assignor, subject to and in accordance with the Standard Terms and Conditions
      and the Credit Agreement, as of the Effective Date inserted by the Agent as
      contemplated below (i) all of the Assignor's rights and obligations as a Lender
      under the Credit Agreement and any other documents or instruments delivered
      pursuant thereto to the extent related to the amount and percentage interest
      identified below of all of such outstanding rights and obligations of the
      Assignor under the respective facilities identified below (including, without
      limitation, Letters of Credit and Swingline Loans and the guarantees included
      in
      such facilities) and (ii) to the extent permitted to be assigned under
      applicable law, all claims, suits, causes of action and any other right of
      the
      Assignor (in its capacity as a Lender) against any Person, whether known or
      unknown, arising under or in connection with the Credit Agreement, any other
      documents or instruments delivered pursuant thereto or the loan transactions
      governed thereby or in any way based on or related to any of the foregoing,
      including, but not limited to, contract claims, tort claims, malpractice claims,
      statutory claims and all other claims at law or in equity related to the rights
      and obligations sold and assigned pursuant to clause (i) above (the rights
      and
      obligations sold and assigned pursuant to clauses (i) and (ii) above being
      referred to herein collectively as, the "Assigned
      Interest").
      Such
      sale and assignment is without recourse to the Assignor and, except as expressly
      provided in this Assignment and Assumption, without representation or warranty
      by the Assignor.

    
 

    
      
        	
                1.

              	
                Assignor:

              	 	
                ____________________________________________________

              
	 	 	 	 
	
                2.

              	
                Assignee:

              	 	
                ____________________________________________________

              
	 	 	 	
                [and
                  is an Affiliate/Approved Fund of [identify
                  Lender]2]

              
	 	 	 	 
	
                3.

              	
                Borrower:

              	 	
                Chattem,
                  Inc.

              
	 	 	 	 
	
                4.

              	
                Agent:

              	 	
                Bank
                  of America, N.A., as the administrative agent under the Credit
                  Agreement

              
	 	 	 	 
	
                5.

              	
                Credit
                  Agreement:

              	 	
                Credit
                  Agreement dated as of February 26, 2004 among Borrower, the Guarantors
                  party thereto, the Lenders parties thereto and Bank of America,
                  N.A., as
                  Agent

              
	 	 	 	 
	
                6.  

              	
                Assigned
                  Interest:

              	 	
                 

              


      

    

     

    
      	
              Facility
                Assigned3

            	
              Aggregate
                Amount of Commitment/Loans for all Lenders* 

            	
              Amount
                of Commitment/Loans Assigned*

            	
              Percentage
                Assigned of Commitment/Loans4

            
	 	
              $

            	
              $

            	
              %

            
	 	
              $

            	
              $

            	
              %

            
	 	
              $

            	
              $

            	
              %

            


    

     

    _____________________________

    2   
Select
      as
      applicable.

    3   
Fill
      in the appropriate
      terminology for the types of facilities under the Credit Agreement that are
      being assigned under this Assignment (e.g. “Revolving Commitment,” “Term Loan
      Commitment,” etc.)

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

      
        	[7.	Trade
                Date:	 	______________]5


      

    

    
           


    

    Effective
      Date: _____________ ___, 20___  [TO BE INSERTED BY AGENT AND WHICH SHALL BE
      THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
      THEREFOR.]

    


    The
      terms
      set forth in this Assignment and Assumption are hereby agreed to:

    


    ASSIGNOR

    
      	 	 	 	 	 	 	
              [NAME
                OF ASSIGNOR]

            


    

    


    By:______________________________

    Title:

    


    ASSIGNEE

    [NAME
      OF
      ASSIGNEE]

    


    By:______________________________

    Title:

     

     

    [Consented
      to and]6  Accepted:

    


    BANK
      OF
      AMERICA, N.A. as 

    Agent

    


    By__________________________________

    Title:

    


    [Consented
      to:]7

    


    [BANK
      OF
      AMERICA, N.A., as Issuing Lender]

    


    By__________________________________

    Title:

    


    CHATTEM,
      INC.,

    a
      Tennnessee corporation

    


    By__________________________________

    Title:

     

     

      
        

      

    

    *   Amount to be adjusted by the counterparties
      to take into account any payments or prepayments made between the Trade Date
      and
      the Effective Date.

    4   Set forth, to at least 9 decimals, as a
      percentage of the Commitment/Loans of all Lenders thereunder.

    5   To be completed if the Assignor and the
      Assignee intend that the minimum assignment amount is to be determined as of
      the
      Trade Date.

    6   To be added only if the consent of the
      Administrative Agent is required by the terms of the Credit
      Agreement.

    7   To be added only if the consent of the
      Borrower and/or other parties (e.g. Issuing Lender) is required by the terms
      of
      the Credit Agreement. 


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    ANNEX
      1

    


    STANDARD
      TERMS AND CONDITIONS FOR

    ASSIGNMENT
      AND ASSUMPTION

    


    1.     
      Representations
      and Warranties.
      

    


    1.1.  
      Assignor.
      The
      Assignor (a) represents and warrants that (i) it is the legal and beneficial
      owner of the Assigned Interest, (ii) the Assigned Interest is free and clear
      of
      any lien, encumbrance or other adverse claim and (iii) it has full power and
      authority, and has taken all action necessary, to execute and deliver this
      Assignment and Assumption and to consummate the transactions contemplated
      hereby; and (b) assumes no responsibility with respect to (i) any statements,
      warranties or representations made in or in connection with the Credit Agreement
      or any other Credit Document, (ii) the execution, legality, validity,
      enforceability, genuineness, sufficiency or value of the Credit Documents or
      any
      collateral thereunder, (iii) the financial condition of the Borrower, any of
      its
      Subsidiaries or Affiliates or any other Person obligated in respect of any
      Credit Document or (iv) the performance or observance by the Borrower, any
      of
      its Subsidiaries or Affiliates or any other Person of any of their respective
      obligations under any Credit Document.

    


    1.2.  
      Assignee.
      The
      Assignee (a) represents and warrants that (i) it has full power and authority,
      and has taken all action necessary, to execute and deliver this Assignment
      and
      Assumption and to consummate the transactions contemplated hereby and to become
      a Lender under the Credit Agreement, (ii) it meets the requirements to be an
      assignee under Section 11.3(b)(iii), (v) and (vi) of the Credit Agreement
      (subject to such consents, if any, as may be required under Section 11.3(b)(iii)
      of the Credit Agreement), (iii) from and after the Effective Date, it shall
      be
      bound by the provisions of the Credit Agreement as a Lender thereunder and,
      to
      the extent of the Assigned Interest, shall have the obligations of a Lender
      thereunder, (iv) it is sophisticated with respect to decisions to acquire assets
      of the type represented by the Assigned Interest and either it, or the Person
      exercising discretion in making its decision to acquire the Assigned Interest,
      is experienced in acquiring assets of such type, (v) it has received a copy
      of
      the Credit Agreement, and has received or has been accorded the opportunity
      to
      receive copies of the most recent financial statements delivered pursuant to
      Section 7.1 thereof, as applicable, and such other documents and information
      as
      it deems appropriate to make its own credit analysis and decision to enter
      into
      this Assignment and Assumption and to purchase the Assigned Interest, (vi)
      it
      has, independently and without reliance upon the Agent or any other Lender
      and
      based on such documents and information as it has deemed appropriate, made
      its
      own credit analysis and decision to enter into this Assignment and Assumption
      and to purchase the Assigned Interest, and (vii) if it is a Foreign Lender,
      attached hereto is any documentation required to be delivered by it pursuant
      to
      the terms of the Credit Agreement, duly completed and executed by the Assignee;
      and (b) agrees that (i) it will, independently and without reliance on the
      Agent, the Assignor or any other Lender, and based on such documents and
      information as it shall deem appropriate at the time, continue to make its
      own
      credit decisions in taking or not taking action under the Credit Documents,
      and
      (ii) it will perform in accordance with their terms all of the obligations
      which
      by the terms of the Credit Documents are required to be performed by it as
      a
      Lender.

    


    2.    
      Payments.
      From
      and after the Effective Date, the Agent shall make all payments in respect
      of
      the Assigned Interest (including payments of principal, interest, fees and
      other
      amounts) to the Assignor for amounts which have accrued to but excluding the
      Effective Date and to the Assignee for amounts which have accrued from and
      after
      the Effective Date.

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    3.     
      General
      Provisions.
      This
      Assignment and Assumption shall be binding upon, and inure to the benefit of,
      the parties hereto and their respective successors and assigns. This Assignment
      and Assumption may be executed in any number of counterparts, which together
      shall constitute one instrument. Delivery of an executed counterpart of a
      signature page of this Assignment and Assumption by telecopy shall be effective
      as delivery of a manually executed counterpart of this Assignment and
      Assumption. This Assignment and Assumption shall be governed by, and construed
      in accordance with, the law of the State of New York.

    


    
_____________________________________

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    
      
        
        

      

      
        
        

        
          

        

      

       

    


    EXHIBIT
      A

    


    CREDIT
      AGREEMENT

     

    among

     

    CHATTEM,
      INC.,

     

    as
      Borrower,

     

    THE
      DOMESTIC SUBSIDIARIES OF BORROWER,

     

    as
      Guarantors,

     

    THE
      LENDERS IDENTIFIED HEREIN,

     

    AND

     

    BANK
      OF AMERICA, N.A.,

     

    as
      Agent

     

    DATED
      AS
      OF FEBRUARY 26, 2004

     

    AND
      AMENDED AS OF DECEMBER 22, 2006

     

    BANC
      OF AMERICA SECURITIES LLC,

     

    as
      Sole
      Lead Arranger and Book Manager

     

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    TABLE
      OF
      CONTENTS

     

    Page

    


    
      
        	
                Section
                  1 

              	
                DEFINITIONS
                  AND ACCOUNTING TERMS

              	
                1

              
	
                1.1

              	
                Definitions

              	
                1

              
	
                1.2

              	
                Computation
                  of Time Periods and Other Definitional Provisions

              	
                22

              
	
                1.3

              	
                Accounting
                  Terms

              	
                22

              
	
                1.4

              	
                Times
                  of Day.

              	
                23

              
	
                Section
                  2 

              	
                CREDIT
                  FACILITIES

              	
                23

              
	
                2.1

              	
                Loans

              	
                23

              
	
                2.2

              	
                Letter
                  of Credit Subfacility.

              	
                26

              
	
                2.3

              	
                Swingline
                  Loans.

              	
                32

              
	
                2.4

              	
                Continuations
                  and Conversions

              	
                34

              
	
                2.5

              	
                Minimum
                  Amounts.

              	
                35

              
	
                2.6

              	
                Notes.

              	
                35

              
	
                SECTION
                  3 

              	
                GENERAL
                  PROVISIONS APPLICABLE TO LOANS

              	
                36

              
	
                3.1

              	
                Interest

              	
                36

              
	
                3.2

              	
                Place
                  and Manner of Payments

              	
                36

              
	
                3.3

              	
                Prepayments

              	
                38

              
	
                3.4

              	
                Fees.

              	
                39

              
	
                3.5

              	
                Repayment
                  of Loans.

              	
                40

              
	
                3.6

              	
                Computations
                  of Interest and Fees

              	
                41

              
	
                3.7

              	
                Pro
                  Rata Treatment

              	
                42

              
	
                3.8

              	
                Allocation
                  of Payments After Acceleration

              	
                43

              
	
                3.9

              	
                Sharing
                  of Payments

              	
                44

              
	
                3.10

              	
                Capital
                  Adequacy

              	
                45

              
	
                3.11

              	
                Inability
                  To Determine Interest Rate

              	
                45

              
	
                3.12

              	
                Illegality

              	
                45

              
	
                3.13

              	
                Requirements
                  of Law

              	
                46

              
	
                3.14

              	
                Taxes

              	
                46

              
	
                3.15

              	
                Indemnity

              	
                48

              
	
                3.16

              	
                Replacement
                  of Lenders

              	
                49

              
	
                SECTION
                  4 

              	GUARANTY	
                49

              
	
                4.1

              	
                Guaranty
                  of Payment

              	
                49

              
	
                4.2

              	
                Obligations
                  Unconditional

              	
                50

              
	
                4.3

              	
                Modifications

              	
                50

              
	
                4.4

              	
                Waiver
                  of Rights

              	
                51

              
	
                4.5

              	
                Reinstatement

              	
                51

              
	
                4.6

              	
                Remedies

              	
                51

              
	
                4.7

              	
                Limitation
                  of Guaranty

              	
                52

              
	
                4.8

              	
                Rights
                  of Contribution

              	
                52

              
	
                SECTION
                  5 

              	CONDITIONS
                PRECEDENT	
                52

              
	
                5.1

              	
                Closing
                  Conditions

              	
                52

              
	
                5.2

              	
                Conditions
                  to All Extensions of Credit

              	
                55

              
	
                SECTION
                  6 

              	REPRESENTATIONS
                AND WARRANTIES	
                55

              
	
                6.1

              	
                Financial
                  Condition

              	
                55

              


      

       

      
        
          i

        

        
          i

          
            

          

        

        
          
          

        

      

      
        	
                6.2

              	
                No
                  Material Change

              	
                56

              
	
                6.3

              	
                Organization
                  and Good Standing

              	
                56

              
	
                6.4

              	
                Due
                  Authorization

              	
                56

              
	
                6.5

              	
                No
                  Conflicts

              	
                56

              
	
                6.6

              	
                Consents

              	
                57

              
	
                6.7

              	
                Enforceable
                  Obligations

              	
                57

              
	
                6.8

              	
                No
                  Default

              	
                57

              
	
                6.9

              	
                Ownership

              	
                57

              
	
                6.10

              	
                Indebtedness

              	
                57

              
	
                6.11

              	
                Litigation

              	
                57

              
	
                6.12

              	
                Taxes

              	
                57

              
	
                6.13

              	
                Compliance
                  with Law

              	
                58

              
	
                6.14

              	
                ERISA

              	
                58

              
	
                6.15

              	
                Subsidiaries

              	
                59

              
	
                6.16

              	
                Use
                  of Proceeds; Margin Stock

              	
                59

              
	
                6.17

              	
                Government
                  Regulation

              	
                59

              
	
                6.18

              	
                Environmental
                  Matters

              	
                59

              
	
                6.19

              	
                Intellectual
                  Property

              	
                60

              
	
                6.20

              	
                Solvency

              	
                61

              
	
                6.21

              	
                Investments

              	
                61

              
	
                6.22

              	
                No
                  Financing of Corporate Takeovers

              	
                61

              
	
                6.23

              	
                Jurisdiction
                  of Organization, Etc

              	
                61

              
	
                6.24

              	
                Disclosure

              	
                61

              
	
                6.25

              	
                Licenses,
                  etc

              	
                61

              
	
                6.26

              	
                No
                  Burdensome Restrictions

              	
                62

              
	
                6.27

              	
                Brokers'
                  Fees

              	
                62

              
	
                6.28

              	
                Labor
                  Matters

              	
                62

              
	
                6.29

              	
                Collateral
                  Documents

              	
                62

              
	
                6.30

              	
                Subordination

              	
                62

              
	
                SECTION
                  7 

              	
                AFFIRMATIVE
                  COVENANTS

              	
                62

              
	
                7.1

              	
                Information
                  Covenants

              	
                62

              
	
                7.2

              	
                Preservation
                  of Existence and Franchises

              	
                66

              
	
                7.3

              	
                Books
                  and Records

              	
                66

              
	
                7.4

              	
                Compliance
                  with Law

              	
                66

              
	
                7.5

              	
                Payment
                  of Taxes and Other Indebtedness

              	
                66

              
	
                7.6

              	
                Insurance

              	
                67

              
	
                7.7

              	
                Maintenance
                  of Property

              	
                67

              
	
                7.8

              	
                Performance
                  of Obligations

              	
                68

              
	
                7.9

              	
                Collateral

              	
                68

              
	
                7.10

              	
                Use
                  of Proceeds

              	
                68

              
	
                7.11

              	
                Audits/Inspections

              	
                68

              
	
                7.12

              	
                Financial
                  Covenants

              	
                68

              
	
                7.13

              	
                Additional
                  Credit Parties

              	
                69

              
	
                7.14

              	
                Ownership
                  of Subsidiaries

              	
                69

              
	
                7.15

              	
                Appraisal
                  Reports

              	
                69

              
	
                7.16

              	
                Post-Closing
                  Matters

              	
                70

              
	
                SECTION
                  8 

              	NEGATIVE
                COVENANTS	
                70

              
	
                8.1

              	
                Indebtedness

              	
                70

              
	
                8.2

              	
                Liens

              	
                71

              
	
                8.3

              	
                Nature
                  of Business

              	
                71

              


      

       

      
        
          
          

        

        
          ii

          
            

          

        

        
          
          

        

      

      
        	
                8.4

              	
                Consolidation
                  and Merger

              	
                71

              
	
                8.5

              	
                Sale
                  or Lease of Assets

              	
                71

              
	
                8.6

              	
                Advances,
                  Investments and Loans

              	
                72

              
	
                8.7

              	
                Restricted
                  Payments

              	
                72

              
	
                8.8

              	
                Transactions
                  with Affiliates

              	
                72

              
	
                8.9

              	
                Fiscal
                  Year; Organizational Documents

              	
                73

              
	
                8.10

              	
                Prepayments
                  of Indebtedness

              	
                73

              
	
                8.11

              	
                Subordinated
                  Debt

              	
                73

              
	
                8.12

              	
                Limitations

              	
                74

              
	
                8.13

              	
                Sale
                  Leasebacks

              	
                74

              
	
                8.14

              	
                Negative
                  Pledges

              	
                74

              
	
                8.15

              	
                Capital
                  Expenditures

              	
                74

              
	
                8.16

              	
                Operating
                  Leases

              	
                74

              
	
                SECTION
                  9 

              	
                EVENTS
                  OF DEFAULT

              	
                75

              
	
                9.1

              	
                Events
                  of Default

              	
                75

              
	
                9.2

              	
                Acceleration;
                  Remedies

              	
                77

              
	
                SECTION
                  10 

              	
                AGENCY
                  PROVISIONS

              	
                78

              
	
                10.1

              	
                Appointment
                  and Authority

              	
                78

              
	
                10.2

              	
                Rights
                  as a Lender

              	
                79

              
	
                10.3

              	
                Exculpatory
                  Provisions

              	
                79

              
	
                10.4

              	
                Reliance
                  by Agent

              	
                80

              
	
                10.5

              	
                Delegation
                  of Duties

              	
                80

              
	
                10.6

              	
                Resignation
                  of Agent

              	
                80

              
	
                10.7

              	
                Non-Reliance
                  by Agent and Other Lenders

              	
                81

              
	
                10.8

              	
                No
                  Other Duties, Etc

              	
                81

              
	
                10.9

              	
                Agent
                  May File Proofs of Claim

              	
                81

              
	
                10.10

              	
                Collateral
                  and Guaranty Matters

              	
                82

              
	
                SECTION
                  11 

              	
                MISCELLANEOUS

              	
                83 

              
	
                11.1

              	
                Notices;
                  Effectiveness; Electronic Communications

              	
                83

              
	
                11.2

              	
                Right
                  of Set-Off

              	
                84

              
	
                11.3

              	
                Successors
                  and Assigns

              	
                84

              
	
                11.4

              	
                No
                  Waiver; Remedies Cumulative

              	
                88

              
	
                11.5

              	
                Payment
                  of Expenses; Indemnification.

              	
                88

              
	
                11.6

              	
                Amendments,
                  Waivers and Consents

              	
                89

              
	
                11.7

              	
                Counterparts

              	
                91

              
	
                11.8

              	
                Headings

              	
                91

              
	
                11.9

              	
                USA
                  PATRIOT Act Notice

              	
                91

              
	
                11.10

              	
                Survival
                  of Indemnification and Representations and Warranties

              	
                91

              
	
                11.11

              	
                Governing
                  Law; Venue

              	
                91

              
	
                11.12

              	
                Waiver
                  of Jury Trial

              	
                92

              
	
                11.13

              	
                Time

              	
                92

              
	
                11.14

              	
                Severability

              	
                92

              
	
                11.15

              	
                Entirety

              	
                92

              
	
                11.16

              	
                Binding
                  Effect; Further Assurances

              	
                93

              
	
                11.17

              	
                Designated
                  Senior Indebtedness

              	
                93

              
	
                11.18

              	
                Treatment
                  of Certain Information; Confidentiality

              	
                93

              
	
                11.19

              	
                No
                  Advisory or Fiduciary Responsibility

              	
                94

              
	 	 	 


      

    

    
      
        
        

      

      
        iii

        
          

        

      

      
        
        

      

    

    SCHEDULES

     

    
      
        	
                Schedule
                  1.1(a)

              	
                Commitment
                  Percentages

              
	
                Schedule
                  1.1(b)

              	
                Existing
                  Permitted Investments

              
	
                Schedule
                  6.10

              	
                Indebtedness

              
	
                Schedule
                  6.15

              	
                Subsidiaries

              
	
                Schedule
                  6.18

              	
                Environmental
                  Matters

              
	
                Schedule
                  6.19

              	
                Intellectual
                  Property

              
	
                Schedule
                  6.23

              	
                Jurisdiction
                  of Organization

              
	
                Schedule
                  7.6

              	
                Insurance

              
	
                Schedule
                  8.2

              	
                Liens

              
	
                Schedule
                  8.8

              	
                Affiliate
                  Transactions

              
	
                Schedule
                  11.1

              	
                Notices

              
	
                Schedule
                  11.2

              	
                Processing
                  and Recordation Fees

              


      

    

    


    EXHIBITS

     

    
      
        	
                Exhibit
                  2.1

              	
                Form
                  of Notice of Borrowing

              
	
                Exhibit
                  2.1(b)

              	
                Form
                  of Incremental Term Loan Joinder Agreement

              
	
                Exhibit
                  2.3

              	
                Form
                  of Swingline Loan Notice

              
	
                Exhibit
                  2.4

              	
                Form
                  of Notice of Continuation/Conversion

              
	
                Exhibit
                  2.6(a)

              	
                Form
                  of Revolving Note

              
	
                Exhibit
                  2.6(b)

              	
                Form
                  of Swingline Note

              
	
                Exhibit
                  2.6(c)

              	
                Form
                  of Term Note

              
	
                Exhibit
                  2.6(d)

              	
                Form
                  of Incremental Term Note

              
	
                Exhibit
                  7.1(c)

              	
                Form
                  of Officer's Certificate

              
	
                Exhibit
                  7.13

              	
                Form
                  of Joinder Agreement

              
	
                Exhibit
                  11.3

              	
                Form
                  of Assignment and Assumption

              


      

    

    


    
      
        
        

      

      
        iv

        
          

        

      

      
        
        

      

    

    CREDIT
      AGREEMENT

    


    


    THIS
      CREDIT AGREEMENT (as amended, supplemented, restated or otherwise modified
      from
      time to time, this "Credit
      Agreement"),
      is
      entered into as of February 26, 2004 among CHATTEM, INC., a Tennessee
      corporation (the "Borrower"),
      each
      of the Borrower's Domestic Subsidiaries, individually a "Guarantor"
      and
      collectively the "Guarantors"),
      the
      Lenders (as defined herein), and BANK OF AMERICA, N.A., as agent for the Lenders
      (in such capacity, the "Agent").

    


    RECITALS

    


    WHEREAS,
      the
      Borrower has requested that the Lenders provide credit facilities for the
      purposes hereinafter set forth; and

    


    WHEREAS,
      the
      Lenders have agreed to make the requested credit facilities available to the
      Borrower on the terms and conditions hereinafter set forth;

    


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

    


    


    SECTION
      1

    


    DEFINITIONS
      AND ACCOUNTING TERMS

    


    1.1 Definitions.

    


    As
      used
      herein, the following terms shall have the meanings herein specified unless
      the
      context otherwise requires. Defined terms herein shall include in the singular
      number the plural and in the plural the singular:

    


    "Additional
      Credit Party"
      means
      each Person that becomes a Guarantor after the Closing Date, as provided in
      Section 7.13.

    


    "Adjusted
      Base Rate"
      means
      the Base Rate plus the Applicable Percentage.

    


    "Adjusted
      Eurodollar Rate"
      means
      the Eurodollar Rate plus the Applicable Percentage.

    


    "Administrative
      Questionnaire"
      means
      an Administrative Questionnaire in a form supplied by the Agent.

    


    "Affiliate"
      means,
      with respect to a specified Person, another Person that directly, or indirectly
      through one or more intermediaries, Controls or is Controlled by or is under
      common Control with the Person specified. "Control" means the possession,
      directly or indirectly, of the power (a) to vote 10% or more of the securities
      having ordinary voting power for the election of directors of a Person or (b)
      to
      direct or cause the direction of the management or policies of a Person, whether
      through the ability to exercise voting power, by contract or otherwise.
      "Controlled"
      has the
      meaning correlative thereto.


    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

    "Agent"
      means
      Bank of America, N.A. or any successor administrative agent appointed pursuant
      to Section 10.9.

    


    "Agent's
      Office"
      means
      the Agent's address and, as appropriate, account as set forth on Schedule 11.1
      or such other address or account as the Agent may from time to time notify
      the
      Borrower and the Lenders. 

    


    "Agent-Related
      Persons"
      means
      the Agent, together with its Affiliates (including, in the case of Bank of
      America in its capacity as the Agent, the Arranger), and the officers,
      directors, employees, agents and attorneys-in-fact of such Persons and
      Affiliates.

    


    "Applicable
      Percentage"
      means
      for purposes of calculating (a) the applicable interest rate for any day for
      Revolving
      Loans, the applicable rate for any day for the Letter of Credit Fees and the
      applicable rate for any day for the Unused Fee, the appropriate applicable
      percentages corresponding to the Leverage Ratio in effect as of the most recent
      Calculation Date as shown below:

    


    
      	
              Pricing

              Level

            	
               

               

               

              Leverage

              Ratio

            	
               

              Applicable
                Percentage For Eurodollar Loans and Letter of Credit
                Fee

            	
               

              Applicable
                Percentage For Base Rate

              Loans

            	
               

               

               

              Applicable
                Percentage for

              Unused
                Fees

            
	
               

              I

               

            	
               

              <1.50
                to 1.0

               

            	
               

              1.00%

               

            	
               

              0.00%

               

            	
               

              0.250%

               

            
	
               

              II

               

            	
               

              >1.50
                to 1.0 but <
                2.50 to 1.0

               

            	
               

              1.25%

               

            	
               

              0.00%

               

            	
               

              0.300%

               

            
	
               

              III

               

            	
              >
                2.50 to 1.0

               

              but
                <
                3.25 to 1.0

               

            	
               

              1.50%

               

            	
               

              0.00%

               

            	
               

              0.350%

               

            
	
               

              IV

               

            	
              >
                3.25 to 1.0 but

               

              <
                3.75 to 1.0

               

            	
               

              1.75%

               

            	
               

              0.25%

               

            	
               

              0.400%

               

            
	
               

              V

               

            	
              >
                3.75 to 1.0

               

            	
               

              2.00%

               

            	
               

              0.50%

               

            	
               

              0.500%

               

            


    

    


    ,
      (b)
the
      applicable interest rate for any day for the Term Loan, a percentage per annum
      equal to (i) 1.75% for Eurodollar Loans and (ii) 0.75% for Base Rate Loans
      and
      (c) the applicable interest rate for any day for the Incremental Term Loan,
      the
      percentage(s) per annum set forth in the Incremental Term Loan Joinder
      Agreement. The
      Applicable Percentage for Revolving Loans, Letter of Credit Fees and the Unused
      Fee shall be determined and adjusted quarterly on the date (each a "Calculation Date")
      five
      Business Days after the date by which the Borrower is required to provide the
      officer's certificate in accordance with the provisions of Section 7.1(c);
      provided,
      however,
      if the
      Borrower fails to provide the officer's certificate required by Section 7.1(c)
      on or before the most recent Calculation Date or fails to deliver a copy of
      such
      officer's certificate to the Agent as required by Section 7.1(c), the Applicable
      Percentage for Revolving Loans, Letter of Credit Fees and the Unused Fee from
      such Calculation Date shall be based on Pricing Level V until such time that
      an
      appropriate officer's certificate is provided whereupon the Applicable
      Percentage shall be determined by the then current Leverage Ratio.
      Each Applicable Percentage for Revolving Loans, Letter of Credit Fees and the
      Unused Fee shall be effective from one Calculation Date until the next
      Calculation Date. Any adjustment in the Applicable Percentage shall be
      applicable to all 

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

    existing
      Revolving Loans and Letters of Credit as well as any new Revolving Loans or
      Letters of Credit made or issued.

    


    "Approved
      Fund"
      means
      any Fund that is administered or managed by (a) a Lender, (b) an Affiliate
      of a
      Lender or (c) an entity or an Affiliate of an entity that administers or manages
      a Lender.

    


    "Arranger"
      means
      Banc of America Securities LLC, in its capacity as sole lead arranger and sole
      book manager.

    


    "Asset
      Disposition"
      means
      the disposition of any or all of the assets of the Borrower or any of its
      Subsidiaries whether by sale, lease, transfer or otherwise but excluding
(a)
      the
      sale, lease, license, transfer or other disposition
      of inventory in the ordinary course of business; (b)  the
      sale,
      lease, license, transfer or other disposition
      in the ordinary course of business of surplus, obsolete or worn out property
      no
      longer used or useful in the conduct of business of any Credit Party and its
      Subsidiaries, (c) any sale, lease, license, transfer or other disposition of
      property to any Credit Party or any Subsidiary; provided,
      that if
      the transferor of such property is a Credit Party (i) the transferee
      thereof must be a Credit Party or (ii) to the extent such transaction
      constitutes an Investment, such transaction is permitted under Section 8.6
      and (d) dispositions otherwise permitted under Sections 8.5(a), (b), (e), (f)
      or
      (g).

    


    "Asset
      Purchase Agreement"
      means
      that certain Asset Purchase Agreement dated as of October 5, 2006, among Johnson
      & Johnson, Pfizer Inc. and the Borrower, as amended by that certain letter
      agreement dated November 27, 2006.

    


    "Assignee
      Group"
      means
      two or more Eligible Assignees that are Affiliates of one another or two or
      more
      Approved Funds managed by the same investment advisor.

    


    "Assignment
      and Assumption"
      means
      an Assignment and Assumption substantially the form of Exhibit 11.3(b).

    


    "Bank
      of America"
      means
      Bank of America, N.A. and its successors.

    


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

    


    "Base
      Rate"
      means
      for any day a fluctuating rate per annum equal to the higher of (a) the Federal
      Funds Rate plus
      1/2 of
      1% and (b) the rate of interest in effect for such day as publicly announced
      from time to time by Bank of America as its "prime rate." The "prime rate"
      is a
      rate set by Bank of America based upon various factors including Bank of
      America's costs and desired return, general economic conditions and other
      factors, and is used as a reference point for pricing some loans, which may
      be
      priced at, above, or below such announced rate. Any change in the "prime rate"
      announced by Bank of America shall take effect at the opening of business on
      the
      day specified in the public announcement of such change.

    


    "Base
      Rate Loan"
      means
      any Loan bearing interest at a rate determined by reference to the Base
      Rate.

    


    "Borrower"
      means
      the Person identified as such in the heading hereof, together with any
      successors and permitted assigns.


    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

    "Business
      Day"
      means
      any day other than a Saturday, a Sunday, a legal holiday or a day on which
      banking institutions are authorized or required by law or other governmental
      action to close in Charlotte, North Carolina; provided that in the case of
      Eurodollar Loans, such day is also a day on which dealings between banks are
      carried on in Dollar deposits in the London interbank market.

    


    "Calculation
      Date"
      has the
      meaning set forth in the definition of Applicable Percentage.

    


    "Capital
      Expenditures"
      means
      all expenditures of the Credit Parties and their Subsidiaries which, in
      accordance with GAAP, would be classified as capital expenditures, including,
      without limitation, Capital Leases; provided,
      however
      that
      Capital Expenditures shall not include Permitted Acquisitions.

    


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

    


    "Capital
      Stock"
      means
      (i) in the case of a corporation, capital stock, (ii) in the case of an
      association or business entity, any and all shares, interests, participations,
      rights or other equivalents (however designated) of capital stock, (iii) in
      the
      case of a partnership, partnership interests (whether general or limited),
      (iv)
      in the case of a limited liability company, membership interests and (v) any
      other interest or participation that confers on a Person the right to receive
      a
      share of the profits and losses of, or distributions of assets of, the issuing
      Person.

    


    "Cash
      Collateralize"
      has the
      meaning assigned to such term in Section 2.2(g).

    


    "Cash
      Equivalents"
      means
      (a) securities issued or directly and fully guaranteed or insured by the United
      States of America or any agency or instrumentality thereof (provided that the
      full faith and credit of the United States of America is pledged in support
      thereof) having maturities of not more than two years from the date of
      acquisition, provided that solely with respect to HBA Indemnity Company, Ltd
      ("HBA")
      such
      securities of a type described in this subpart (a) owned by HBA may have
      maturities of not more than twenty-four months from the date of acquisition,
      (b)
      Dollar denominated (or with respect to Foreign Subsidiaries, Dollar denominated
      and non Dollar denominated) time deposits, including eurodollar time deposits,
      and certificates of deposit of (i) any Lender, (ii) any domestic (or with
      respect to Foreign Subsidiaries, any domestic or nondomestic) commercial bank
      of
      recognized standing having capital and surplus in excess of $500,000,000 or
      (iii) any bank whose short-term commercial paper rating from S&P is at least
      A-1 or the equivalent thereof or from Moody's is at least P-1 or the equivalent
      thereof (any such bank being an "Approved Bank"), in each case with maturities
      of not more than two years from the date of acquisition, (c) commercial paper
      and variable or fixed rate notes issued by any Approved Bank (or by the parent
      company thereof) or any variable rate notes issued by, or guaranteed by, any
      domestic corporation rated A-1 (or the equivalent thereof) or better by S&P
      or P-1 (or the equivalent thereof) or better by Moody's and maturing within
      270
      days of the date of acquisition, (d) repurchase agreements with a bank or trust
      company (including any of the Lenders) or recognized securities dealer having
      capital and surplus in excess of $500,000,000 for direct obligations issued
      by
      or fully guaranteed by the United States of America in which the Borrower shall
      have a perfected first priority security interest (subject to no other Liens)
      and having, on the date of purchase thereof, a fair market value of at least
      100% of the amount of the repurchase obligations, (e) Investments in money
      market investment programs registered under 

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

    the
      Investment Company Act of 1940, as amended, which are administered by reputable
      financial institutions having capital of at least $500,000,000 and rated AA
      (or
      the equivalent thereof) or better by S&P or Aa (or the equivalent thereof)
      or better by Moody's, with maturities of not more than two years from the date
      of acquisition and (f) auction rate preferred stock issued by any domestic
      corporation rated AA (or the equivalent thereof) or better by S&P or Aa (or
      the equivalent thereof) or better by Moody's, with maturities of not more than
      two years from the date of acquisition.

    


    "Change
      of Control"
      means
      any of the following events: either (i) a "person" or a "group" (within the
      meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934)
      becomes the "beneficial owner" (as defined in Rule 13d-3 under the Securities
      Exchange Act of 1934) of more than 35% of the then outstanding voting stock
      of
      the Borrower, (ii) a majority of the Board of Directors of the Borrower shall
      consist of individuals who are not Continuing Directors; "Continuing
      Director"
      means,
      as of any date of determination, (A) an individual who on the date two years
      prior to such determination date was a member of the Borrower's Board of
      Directors or (B) any new Director whose nomination for election by the
      Borrower's shareholders was approved by a vote of at least 75% of the Directors
      then still in office who either were Directors on the date two years prior
      to
      such determination date or whose nomination for election was previously so
      approved, (iii) the occurrence of a Change of Control (under and as defined
      in
      the Subordinated Indenture) or (iv) the occurrence of a "Change of Control
      (or
      any comparable term) under, and as defined in, the Convertible
      Indenture.

    


    "Closing
      Date"
      means
      the date hereof.

    


    "Code"
      means
      the Internal Revenue Code of 1986, as amended, modified, succeeded or replaced
      from time to time.

    


    "Collateral"
      means
      all collateral referred to in and covered by the Collateral
      Documents.

    


    "Collateral
      Documents"
      means
      the Security Agreement, the Pledge Agreement and such other documents executed
      and delivered in connection with the creation of the Agent's security interests,
      for the benefit of the Lenders, in the assets of the Credit
      Parties.

    


    "Commitment
      Percentage"
      means,
      with respect to each Lender at any time, (a) with respect to such Lender's
      Revolving Commitment at any time, a fraction (expressed as a percentage, carried
      out to the ninth decimal place), the numerator of which is the amount of the
      Revolving Commitment of such Lender at such time and the denominator of which
      is
      the total Revolving Commitments of all Lenders at such time; provided
      that if
      the commitment of each Lender to make Revolving Loans and the obligation of
      the
      Issuing Lender to make LOC Borrowings have been terminated pursuant to
      Section 9.2, then the Commitment Percentage of each Lender shall be
      determined based on the Commitment Percentage of such Lender immediately prior
      to such termination and after giving effect to any subsequent assignments made
      pursuant to the terms hereof, (b) with respect to such Lender's outstanding
      Term
      Loan at any time, a fraction (expressed as a percentage, carried out to the
      ninth decimal place), the numerator of which is the principal amount of the
      Term
      Loan held by such Lender at such time and the denominator of which is the
      aggregate principal amount of the Term Loan at such time and (c) with respect
      to
      such Lender's outstanding Incremental Term Loan at any time, a fraction
      (expressed as a percentage, carried out to the ninth decimal place), the
      numerator of which is the principal amount of the Incremental Term Loan held
      by
      such Lender at such time and the denominator of which is the aggregate principal
      amount of the Incremental Term Loan at such 

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

    time.
      The
      Commitment Percentage of each Lender is set forth opposite the name of such
      Lender on Schedule 1.1(a),
      in the
      Assignment and Assumption pursuant to which such Lender becomes a party hereto,
      or in any amendment of this Agreement, as applicable.

    


    "Commitments"
      means
      any
      of the Revolving Commitments, the LOC Commitment, the Swingline Commitment,
      the
      Term Loan Commitments and/or the Incremental Term Loan Commitments.

    


    "Convertible
      Indenture"
      means
      that certain Indenture with respect to the 2.00% Convertible Notes due 2013,
      dated as of November 22, 2006 among the Borrower and U.S. Bank, National
      Association, as amended, modified, restated or supplemented from time to time
      in
      accordance with the terms thereof and hereof.

    


    "Convertible
      Notes"
      means
      the unsecured convertible notes due 2013 issued by the Borrower pursuant to
      the
      terms of the Convertible Indenture.

    


    "Credit
      Agreement"
      has the
      meaning assigned to such term in the preamble.

    


    "Credit
      Documents"
      means
      this Credit Agreement, the Notes, the
      LOC
      Documents, any
      Joinder Agreement, the Collateral Documents, the Incremental Term Loan Joinder
      Agreement and the Fee Letter.

    


    "Credit
      Parties"
      means
      the Borrower and the Guarantors, and "Credit Party" means any one of
      them.

    


    "Credit
      Party Obligations"
      means,
      without duplication, (a) all of the obligations of the Credit Parties to the
      Lenders and the Agent, whenever arising, under this Credit Agreement, the Notes,
      the Collateral Documents or any of the other Credit Documents to which the
      Borrower or any other Credit Party is a party (including, but not limited to,
      any interest accruing after the occurrence of a Bankruptcy Event with respect
      to
      any Credit Party, regardless of whether such interest is an allowed claim under
      the Bankruptcy Code), (b) all liabilities and obligations, whenever arising,
      owing from the Borrower to any Lender, or any Affiliate of a Lender, arising
      under any Hedging Agreement and (c) all obligations under any Treasury
      Management Agreement between any Credit Party and any Lender or Affiliate of
      a
      Lender.

    


    "Debt
      Issuance"
      means
      the issuance by the Borrower or any Domestic Subsidiary of any Indebtedness
      other than Indebtedness permitted under Section 8.1.

    


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

    


    "Defaulting
      Lender"
      means,
      at any time, any Lender that, at such time (a) has failed to make a Loan or
      purchase a participation interests required pursuant to the terms of this Credit
      Agreement, (b) has failed to pay to the Agent or any Lender an amount owed
      by
      such Lender pursuant to the terms of this Credit Agreement or (c) has been
      deemed insolvent or has become subject to a bankruptcy or insolvency proceeding
      or to a receiver, trustee or similar official.

    


    "Domestic
      Subsidiaries"
      means
      all Subsidiaries of the Borrower that are domiciled, incorporated or organized
      under the laws of any state of the United States or the District of
      Columbia.


    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

    "Dollars"
      and
      "$"
      means
      dollars in lawful currency of the United States of America.

    


    "Earn
      Out Obligations"
      means,
      with respect to an acquisition of all of the Capital Stock of another Person,
      all or substantially all of the assets of another Person or a brand or product
      line of another Person, all obligations of the Borrower or any Subsidiary to
      make earn out or other contingency payments pursuant to the documentation
      relating to such transaction. The amount of any Earn Out Obligation shall be
      deemed to be the aggregate liability in respect thereof as recorded on the
      balance sheet of the Borrower and its Subsidiaries in accordance with
      GAAP.

    


    "EBITDA"
      means,
      for any period, with respect to the Borrower and its Subsidiaries on a
      consolidated basis, the sum of (a) Net Income for such period (excluding the
      effect of any extraordinary or other non-recurring gains and losses outside
      of
      the ordinary course of business) plus (b) an amount which, in the determination
      of Net Income for such period has been deducted for (i) Interest Expense for
      such period, (ii) total federal, state, foreign or other income taxes for such
      period, (iii) all depreciation and amortization for such period, (iv) for the
      fiscal quarter periods ending on November 30, 2005 and February 28, 2006, any
      non-recurring charges incurred by the Borrower during such periods in connection
      with the redemption or prepayment of Subordinated Debt in accordance with
      Section 8.11 of the Credit Agreement (and the termination of related Hedging
      Agreements), including all premiums, fees and legal costs related thereto in
      an
      aggregate amount not to exceed $2,750,000 in the case of non-cash charges and
      $2,000,000 in the case of cash charges, (v) to the extent incurred during the
      applicable period and subsequent to November 30, 2003, the amount of any
      write-down of goodwill required under FASB 142 in an aggregate amount not to
      exceed $40,000,000, all as determined in accordance with GAAP and (vi) non-cash
      expenses required under FASB 123R in connection with unvested stock options
      less
      (c) an amount which, in the determination of Net Income for such period, has
      been included for the recovery and/or reversal of charges or reserves in
      connection with the Borrower's phenylpropanolamine litigation. Notwithstanding
      the foregoing, for purposes of calculating EBITDA (x) as of fiscal quarter
      ending May 31, 2007, EBITDA shall be actual EBITDA for the fiscal quarter period
      ending May 31, 2007 multiplied
      by
      four,
      (y) as of the fiscal quarter ending August 31, 2007, EBITDA shall be actual
      EBITDA for the two successive fiscal quarter periods ending August 31, 2007
      multiplied
      by
      two and
      (z) as of the fiscal quarter ending November 30, 2007, EBITDA shall be actual
      EBITDA for the three successive fiscal quarter periods ending November 30,
      2007
multiplied
      by
      4/3.

    


    "Eligible
      Assignee"
      means
      any Person that meets the requirements to be an assignee under Section
      11.3(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required
      under Section 11.3(b)(iii)).

    


    "Environmental
      Laws"
      means
      any and all federal, state, local, foreign and other applicable statutes, laws,
      regulations, ordinances, rules, judgments, orders, decrees, permits,
      concessions, grants, franchises, licenses, agreements or governmental
      restrictions relating to pollution and the protection of the environment or
      the
      release of any materials into the environment, including those related to
      hazardous substances or wastes, air emissions and discharges to waste or public
      systems.

    


    "Equity
      Issuance"
      means
      any issuance by the Borrower to any Person of shares of its Capital Stock,
      other
      than (a) any issuance of any shares of its Capital Stock pursuant to the
      exercise of options or warrants, (b) any shares of its Capital Stock pursuant
      to
      the conversion of any debt securities (including the Convertible Notes) to
      equity and (c) any issuance by the 

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

    Borrower
      of shares of its Capital Stock to employees and directors pursuant to employees
      or directors stock plans.

    


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

    


    "ERISA
      Affiliate"
      means
      an entity, whether or not incorporated, which is under common control with
      any
      Credit Party or any of its Subsidiaries within the meaning of Section
      4001(a)(14) of ERISA, or is a member of a group which includes any Credit Party
      or any of its Subsidiaries and which is treated as a single employer under
      Sections 414(b), (c), (m), or (o) of the Code.

    


    "Eurodollar
      Base Rate"
      means,
      for any Interest Period with respect to any Eurodollar Loan:

    


    
      	 	
              (a)

            	
              the
                rate per annum equal to the rate determined by the Agent to be the
                offered
                rate that appears on the page of the Telerate screen (or any successor
                thereto) that displays an average British Bankers Association Interest
                Settlement Rate for deposits in Dollars (for delivery on the first
                day of
                such Interest Period) with a term equivalent to such Interest Period,
                determined as of approximately 11:00 a.m. (London time) two Business
                Days
                prior to the first day of such Interest Period,
                or

            


    

    


    
      	 	
              (b)

            	
              if
                the rate referenced in the preceding clause (a) does not appear on
                such
                page or service or such page or service shall not be available, the
                rate
                per annum equal to the rate determined by the Agent to be the offered
                rate
                on such other page or other service that displays an average British
                Bankers Association Interest Settlement Rate for deposits in Dollars
                (for
                delivery on the first day of such Interest Period) with a term equivalent
                to such Interest Period, determined as of approximately 11:00 a.m.
                (London
                time) two Business Days prior to the first day of such Interest Period,
                or

            


    

    


    
      	 	
              (c)

            	
              if
                the rates referenced in the preceding clauses (a) and (b) are not
                available, the rate per annum (rounded upward to the next
                1/100th
                of
                1%) determined by the Agent as the rate of interest at which deposits
                in
                Dollars for delivery on the first day of such Interest Period in
                same day
                funds in the approximate amount of the Eurodollar Loan being made,
                continued or converted by Bank of America and with a term equivalent
                to
                such Interest Period would be offered by Bank of America's London
                Branch
                to major banks in the London interbank eurodollar market at their
                request
                at approximately 4:00 p.m. (London time) two Business Days prior
                to the
                first day of such Interest Period.

            


    

    


    "Eurodollar
      Loan"
      means
      any Loan bearing interest based at a rate determined by reference to the
      Eurodollar Rate.

    


    "Eurodollar
      Rate"
      means,
      for any Interest Period with respect to any Eurodollar Loan, a rate per annum
      determined by the Agent to be equal to the quotient obtained by dividing (a)
      the
      Eurodollar Base Rate for such Eurodollar Loan for such Interest Period by (b)
      one minus the Eurodollar Reserve Percentage for such Eurodollar Loan for such
      Interest Period.


    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

    "Eurodollar
      Reserve Percentage"
      means,
      for any day during any Interest Period, the reserve percentage (expressed as
      a
      decimal, carried out to five decimal places) in effect on such day, whether
      or
      not applicable to any Lender, under regulations issued from time to time by
      the
      Board of Governors of the Federal Reserve System 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"). The Eurodollar Rate for each outstanding
      Eurodollar Loan shall be adjusted automatically as of the effective date of
      any
      change in the Eurodollar Reserve Percentage.

    


    "Event
      of Default"
      has the
      meaning assigned to such term in Section 9.1.

    


    "Excess
      Cash Flow"
      means,
      for any period for the Borrower and its Subsidiaries, an amount equal to the
      sum
      of (a)
      EBITDA minus
      (b)
      Capital Expenditures paid in cash minus
      (c) any
      cash consideration paid in connection with a Permitted Acquisition, minus
      (d) the
      cash portion of Interest Expense minus
      (e)
      federal, state and other taxes to the extent paid in cash during such period
      minus
      (f) the
      sum of Scheduled Funded Debt Payments minus
      (g) the
      amount of any voluntary prepayments made on the Term Loan during such period,
      in
      each
      case on a consolidated basis determined in accordance with GAAP.

    


    "Existing
      Indenture"
      means
      that certain Indenture dated as of March 24, 1998 among the Borrower, Signal
      and
      SouthTrust Bank of Alabama, National Association, as trustee, as amended,
      modified, restated or supplemented from time to time.

    


    "Extension
      of Credit"
      means,
      as to any Lender, the making of a Loan by such Lender (or a participation
      therein by a Lender)
      or the
      issuance or extension of, or participation in, a Letter of Credit by such
      Lender.

    


    "Federal
      Funds Rate"
      means,
      for any day, the rate per annum equal to the weighted average of the rates
      on
      overnight federal funds transactions with members of the Federal Reserve System
      arranged by federal funds brokers on such day, as published by the Federal
      Reserve Bank of New York on the Business Day next succeeding such day;
provided
      that (a)
      if such day is not a Business Day, the Federal Funds Rate for such day shall
      be
      such rate on such transactions on the next preceding Business Day as so
      published on the next succeeding Business Day, and (b) if no such rate is so
      published on such next succeeding Business Day, the Federal Funds Rate for
      such
      day shall be the average rate (rounded upward, if necessary, to a whole multiple
      of 1/100 of 1%) charged to Bank of America on such day on such transactions
      as
      determined by the Agent. 

    


    "Fee
      Letter"
      means
      that certain letter agreement, dated as of October 4, 2006, between Bank of
      America, BAS and the Borrower, as amended, modified, supplemented or replaced
      from time to time.

    


    "Fifth
      Amendment"
      means
      that certain Fifth Amendment to Credit Agreement dated as of December 22, 2006
      among the Borrower, the Guarantors, the Lenders and the Administrative
      Agent.

    


    "Fifth
      Amendment Effective Date"
      means
      the
      date on which the conditions precedent set forth in Subpart 3.1 of the Fifth
      Amendment are satisfied.


    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

    "Fixed
      Charge Coverage Ratio"
      means,
      as of the end of each fiscal quarter of the Borrower, for the twelve month
      period ending on such date, with respect to the Borrower and its Subsidiaries
      on
      a consolidated basis, the ratio of (a) the sum of (i) EBITDA for the applicable
      period minus (ii) Capital Expenditures for the applicable period minus (iii)
      federal, state and other income taxes paid in cash for the applicable period
      to
      (b) the sum of (i) cash Interest Expense for the applicable period plus (ii)
      Scheduled Funded Debt Payments for the applicable period plus (iii) cash
      dividends (other than those permitted by clause (i) of Section 8.7) paid during
      the applicable period.

    


    "Foreign
      Lender"
      means
      any Lender that is organized under the laws of a jurisdiction other than that
      in
      which the Borrower is resident for tax purposes. For purposes of this
      definition, the United States, each State thereof and the District of Columbia
      shall be deemed a single jurisdiction.

    


    "Foreign
      Subsidiaries"
      means
      all Subsidiaries of the Borrower that are not Domestic
      Subsidiaries.

    


    "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"
      means,
      with respect to any Person, without duplication, (a) all obligations (other
      than
      Hedging Agreements) of such Person for borrowed money, (b) all obligations
      of
      such Person evidenced by bonds, debentures, notes or similar instruments, or
      upon which interest payments are customarily made, (c) all obligations of such
      Person under conditional sale or other title retention agreements relating
      to
      assets purchased by such Person (other than customary reservations or retentions
      of title under agreements with suppliers entered into in the ordinary course
      of
      business), (d) all obligations of such Person issued or assumed as the deferred
      purchase price of assets or services purchased by such Person (other than trade
      debt incurred in the ordinary course of business and due within six months
      of
      the incurrence thereof, but including Earn Out Obligations) which would appear
      as liabilities on a balance sheet of such Person in accordance with GAAP, (e)
      the implied principal component of all obligations of such Person under Capital
      Leases, (f) commercial letters of credit and the maximum amount of all
      performance and standby letters of credit issued or bankers' acceptances
      facilities created for the account of such Person and, without duplication,
      all
      drafts drawn thereunder (to the extent unreimbursed), (g) all preferred Capital
      Stock issued by such Person and required by the terms thereof to be redeemed,
      or
      for which mandatory sinking fund payments are due, by a fixed date), (h) the
      principal portion of all obligations of such Person under Synthetic Leases,
      (i)
      the aggregate amount of uncollected accounts receivable of such Person subject
      at such time to a sale of receivables (or similar transaction) to the extent
      such transaction is effected with recourse to such Person (whether or not such
      transaction would be reflected on the balance sheet of such Person in accordance
      with GAAP), (j) all Funded Debt of others secured by (or for which the holder
      of
      such Funded Debt has an existing right, contingent or otherwise, to be secured
      by) any Lien on, or payable out of the proceeds of production from, assets
      owned
      or acquired by such Person, whether or not the obligations secured thereby
      have
      been assumed, (k) all Guaranty Obligations of such Person with respect to Funded
      Debt of another Person and (l) the Funded Debt of any partnership or
      unincorporated joint venture in which such Person is a general partner or a
      joint venturer to the extent such Indebtedness is recourse to such
      Person.


    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

    "GAAP"
      means
      generally accepted accounting principles in the United States applied on a
      consistent basis and subject to Section 1.3.

    


    "Governmental
      Authority"
      means
      any federal, state, local, provincial or foreign court or governmental agency,
      authority, instrumentality or regulatory body.

    


    "Guarantor"
      means
      each of the Domestic Subsidiaries of the Borrower and each Additional Credit
      Party which has executed a Joinder Agreement, together with their successors
      and
      assigns.

    


    "Guaranty
      Obligations"
      means,
      with respect to any Person, without duplication, any obligations (other than
      endorsements in the ordinary course of business of negotiable instruments for
      deposit or collection) guaranteeing or intended to guarantee any Indebtedness,
      leases, dividends or other obligations of any other Person in any manner,
      whether direct or indirect, and including without limitation any obligation,
      whether or not contingent, (a) to purchase any such Indebtedness or other
      obligation or any property constituting security therefor, (b) to advance or
      provide funds or other support for the payment or purchase of such Indebtedness
      or obligation or to maintain working capital, solvency or other balance sheet
      condition of such other Person (including, without limitation, maintenance
      agreements, comfort letters, take or pay arrangements, put agreements or similar
      agreements or arrangements) for the benefit of the holder of Indebtedness of
      such other Person, (c) to lease or purchase property, securities or services
      primarily for the purpose of assuring the owner of such Indebtedness or
      obligation, or (d) to otherwise assure or hold harmless the owner of such
      Indebtedness or obligation against loss in respect thereof. The amount of any
      Guaranty Obligation hereunder shall (subject to any limitations set forth
      therein) be deemed to be an amount equal to the outstanding principal amount
      (or
      maximum principal amount, if larger) of the Indebtedness in respect of which
      such Guaranty Obligation is made.

    


    "Hazardous
      Materials"
      means
      any substance, material or waste defined or regulated in or under any
      Environmental Laws.

    


    "Hedging
      Agreement"
      means
      any interest rate protection agreement, foreign currency exchange agreement,
      commodity purchase or option agreement or other interest or exchange rate or
      commodity price hedging agreement.

    


    "Honor
      Date"
      has the
      meaning assigned to such term in Section 2.2(c).

    


    "Incremental
      Term Loan"
      shall
      have the meaning provided in Section
      2.1(c).

    


    "Incremental
      Term Loan Commitment"
      means,
      as to each Incremental Term Loan Lender, the commitment of such Incremental
      Term
      Loan Lender to make the Incremental Term Loan hereunder pursuant to the
      Incremental Term Loan Lender Joinder Agreement; provided
      that, at
      any time after the funding of the Incremental Term Loan, determinations of
      "Required Lenders" and of "Required Incremental Term Loan Lenders" shall include
      the aggregate principal amount of the Incremental Term Loan.

    


    "Incremental
      Term Loan Lender"
      means
      each of the Persons identified as an "Incremental Term Loan Lender" in the
      Incremental Term Loan Lender Joinder Agreement, together with their respective
      successors and assigns.


    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

    "Incremental
      Term Loan Lender Joinder Agreement"
      means a
      joinder agreement, substantially in the form of Exhibit
      2.1(b),
      executed and delivered in accordance with the provisions of Section
      2.2(h).

    


    "Incremental
      Term Loan Maturity Date"
      shall
      be as set forth in the Incremental Term Loan Lender Joinder
      Agreement.

    


    "Incremental
      Term Note"
      or
      "Incremental
      Term Notes"
      means the promissory notes of the Borrower in favor of each of the Incremental
      Term Loan Lenders evidencing the Incremental Term Loan provided pursuant to
      Section 2.1, individually or collectively, as appropriate, as such promissory
      notes may be amended, modified, supplemented, extended, renewed or replaced
      from
      time to time and as evidenced in the form of Exhibit
      2.6(d).

    


    "Indebtedness"
      means,
      with respect to any Person, without duplication, (a) all obligations of such
      Person for borrowed money, (b) all obligations of such Person evidenced by
      bonds, debentures, notes or similar instruments, or upon which interest payments
      are customarily made, (c) all obligations of such Person under conditional
      sale
      or other title retention agreements relating to assets purchased by such Person
      (other than customary reservations or retentions of title under agreements
      with
      suppliers entered into in the ordinary course of business), (d) all obligations
      of such Person issued or assumed as the deferred purchase price of assets or
      services purchased by such Person (other than trade debt incurred in the
      ordinary course of business and due within six months of the incurrence thereof,
      but including Earn Out Obligations) which would appear as liabilities on a
      balance sheet of such Person, (e) all obligations of such Person under
      take-or-pay or similar arrangements or under commodities agreements, (f) all
      Indebtedness of others secured by (or for which the holder of such Indebtedness
      has an existing right, contingent or otherwise, to be secured by) any Lien
      on,
      or payable out of the proceeds of production from, assets owned or acquired
      by
      such Person, whether or not the obligations secured thereby have been assumed,
      (g) all Guaranty Obligations of such Person, (h) the principal portion of all
      obligations of such Person under Capital Leases, (i) all obligations of such
      Person under Hedging Agreements, (j) commercial letters of credit and the
      maximum amount of all standby letters of credit issued or bankers' acceptances
      facilities created for the account of such Person and, without duplication,
      all
      drafts drawn thereunder (to the extent unreimbursed), (k) the principal portion
      of all obligations of such Person under Synthetic Leases, (l) all preferred
      Capital Stock issued by such Person and which by the terms thereof could be
      (at
      the request of the holders thereof or otherwise) be subject to mandatory sinking
      fund payments, redemption or other acceleration by a fixed date, (m) all
      obligations of such Person to repurchase any securities issued by such Person
      at
      any time on or prior to the Term Loan Maturity Date which repurchase obligations
      are related to the issuance thereof, including, without limitation, obligations
      commonly known as residual equity appreciation potential shares, (n) the
      Indebtedness of any partnership or unincorporated joint venture in which such
      Person is a general partner or a joint venturer to the extent such Indebtedness
      is recourse to such Person and (o) the aggregate amount of uncollected accounts
      receivable of such Person subject at such time to a sale of receivables (or
      similar transaction) to the extent such transaction is effected with recourse
      to
      such Person (whether or not such transaction would be reflected on the balance
      sheet of such Person in accordance with GAAP).

    


    "Indemnified
      Liabilities"
      has the
      meaning assigned to such term in Section 11.5(b).

    


    "Indemnitees"
      has the
      meaning assigned to such term in Section 11.5(b).

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

    "Information"
      has the
      meaning assigned to such term in Section 11.18.

    


    "Interest
      Expense"
      means,
      for any period, with respect to the Borrower and its Subsidiaries on a
      consolidated basis, all interest expense, including the interest component
      under
      Capital Leases and Synthetic Leases, as determined in accordance with
      GAAP.

    "Interest
      Payment Date"
      means
      (a) as to Base Rate Loans and
      Swingline Loans,
      the
      last Business Day of each fiscal quarter of the Borrower and on the Termination
      Date, the Term Loan Maturity Date and the Incremental Term Loan Maturity Date
      (if any) and (b) as to Eurodollar Loans, on the last day of each applicable
      Interest Period and on the Termination Date, the Term Loan Maturity Date and
      the
      Incremental Term Loan Maturity Date (if any) and in addition if the Interest
      Period for a Eurodollar Loan is more than 3 months, then at 3 month intervals
      beginning on the date 3 months from the beginning of the Interest
      Period.

    


    "Interest
      Period"
      means,
      as to Eurodollar Loans, a period of one, two, three and six months' duration,
      as
      the Borrower may elect, commencing, in each case, on the date of the borrowing
      (including continuations and conversions thereof); provided,
      however,
      (a) if
      any Interest Period would end on a day which is not a Business Day, such
      Interest Period shall be extended to the next succeeding Business Day (except
      that where the next succeeding Business Day falls in the next succeeding
      calendar month, then on the next preceding Business Day), (b) no Interest Period
      with respect to any Revolving Loan shall extend beyond the Termination Date,
      (c)
      no Interest Period with respect to the Term Loan shall extend beyond the Term
      Loan Maturity Date, (d) no Interest Period with respect to the Incremental
      Term
      Loan shall extend beyond the Incremental Term Loan Maturity Date and (e) where
      an Interest Period begins on a day for which there is no numerically
      corresponding day in the calendar month in which the Interest Period is to
      end,
      such Interest Period shall end on the last Business Day of such calendar month.
      

    


    "Investment"
      means
      (a) the acquisition (whether for cash, property, services, assumption of
      Indebtedness, securities or otherwise) of assets (including, without limitation,
      inventory, fixed assets, trademarks or tradenames), shares of Capital Stock,
      bonds, notes, debentures, partnership, joint venture or other ownership
      interests or other securities of any Person or (b) any deposit with, or advance,
      loan or other extension of credit to, any Person (other than deposits made
      in
      connection with the purchase of equipment or other assets in the ordinary course
      of business) or (c) any other capital contribution to or investment in such
      Person, including, without limitation, any Guaranty Obligation incurred for
      the
      benefit of such Person.

     

    "ISP"
      means,
      with respect to any Letter of Credit, the "International
      Standby Practices 1998" published by the Institute of International Banking
      Law
& Practice (or such later version thereof as may be in effect at the time of
      issuance).

    


    "Issuing
      Lender"
      means
      Bank of America.

    


    "JEWEL
      Acquisition"
      means
      the acquisition by the Borrower of the Purchased Assets pursuant to and in
      accordance with the Asset Purchase Agreement.

    


    "Joinder
      Agreement"
      means a
      Joinder Agreement substantially in the form of Exhibit
      7.13.
      

    


    "Lenders"
      means
      any of the Persons identified as a "Lender" on the signature pages hereto, and
      any Person which may become a Lender by way of assignment in accordance with
      the
      terms 

    
      
        
        

      

      
        13

        
          

        

      

      
        
        

      

    

    hereof,
      together with their successors and permitted assigns and each Incremental Term
      Loan Lender, and,
      as
      the context requires, includes the Issuing Lender and the Swingline
      Lender.

    
       

    

    "Lending
      Office"
      means,
      as to any Lender, the office or offices of such Lender described as such in
      such
      Lender's Administrative Questionnaire, or such other office or offices as a
      Lender may from time to time notify the Borrower and the Agent.

    


    "Letter
      of Credit"
      means
      any letter of credit issued by the Issuing Lender for the account of the
      Borrower in accordance with the terms of Section 2.2(a).

    


    "Letter
      of Credit Application"
      means
      an application and agreement for the issuance or amendment of a letter of credit
      in the form from time to time in use by the Issuing Lender.

    


    "Letter
      of Credit Expiration Date"
      means
      the day that is thirty days prior to the Termination Date (or, if such day
      is
      not a Business Day, the next preceding Business Day).

    


    "Letter
      of Credit Fee"
      has the
      meaning assigned to such term in Section 3.4(b)(i).

    


    "Leverage
      Ratio"
      means,
      as of the end of each fiscal quarter of the Borrower, with respect to the
      Borrower and its Subsidiaries on a consolidated basis, the ratio of (a) Funded
      Debt on such date to (b) EBITDA for the twelve month period ending on such
      date.


     

    "Lien"
      means
      any mortgage, pledge, hypothecation, assignment, deposit arrangement, security
      interest, encumbrance, lien (statutory or otherwise), preference, priority
      or
      charge of any kind (including, without limitation, any agreement to give any
      of
      the foregoing, any conditional sale or other title retention agreement, any
      financing or similar statement or notice filed under the Uniform Commercial
      Code
      as adopted and in effect in the relevant jurisdiction or other similar recording
      or notice statute, and any lease in the nature thereof).

    


    "Loan"
      or
      "Loans"
      means
      the Revolving Loans, the Term Loan, the Incremental Term Loan and/or the
      Swingline Loans (or a portion of any Revolving Loan or Swingline Loan),
      individually or collectively, as appropriate.

    


    "LOC
      Advance"
      means,
      with respect to each Lender, such Lender's funding of its participation in
      any
      LOC Borrowing in accordance with its Commitment Percentage.

    


    "LOC
      Borrowing"
      means
      an extension of credit resulting from a drawing under any Letter of Credit
      which
      has not been reimbursed on the date when made or refinanced as a borrowing
      of
      Revolving Loans.

    


    "LOC
      Commitment"
      means
      the commitment of the Issuing Lender to issue Letters of Credit, and to honor
      payment obligations under Letters of Credit hereunder in an aggregate face
      amount at any time outstanding (together with the amounts of any unreimbursed
      drawings thereon) of up to the LOC Committed Amount.

    


    "LOC
      Committed Amount"
      means
      FIVE MILLION DOLLARS ($5,000,000).

    


    "LOC
      Documents"
      means,
      with respect to any Letter of Credit, such Letter of Credit, any amendments
      thereto, any documents delivered in connection therewith, any Letter of Credit
      Application therefor, and any agreements, instruments, guarantees or other
      documents (whether 

    
      
        
        

      

      
        14

        
          

        

      

      
        
        

      

    

    general
      in application or applicable only to such Letter of Credit) governing or
      providing for (i) the rights and obligations of the parties concerned or at
      risk
      or (ii) any collateral security for such obligations.

    


    "LOC
      Obligations"
      means,
      at any time, the sum of (i) the maximum amount which is, or at any time
      thereafter may become, available to be drawn under Letters of Credit then
      outstanding, assuming compliance with all requirements for drawings referred
      to
      in such Letters of Credit plus
      (ii)
the
      aggregate of all Unreimbursed Amounts, including all LOC Borrowings.
      For all
      purposes of this Credit Agreement, if on any date of determination a Letter
      of
      Credit has expired by its terms but any amount may still be drawn thereunder
      by
      reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall
      be
      deemed to be "outstanding" in the amount so remaining available to be
      drawn.

    


    "Material
      Adverse Effect"
      means a
      material adverse effect, after taking into account applicable insurance (to
      the
      extent the provider thereof has the financial ability to support its obligations
      with respect thereto and is not disputing same), on (a) the operations,
      financial condition, business or prospects of the Borrower and its Subsidiaries
      taken as a whole, (b) the ability of a Credit Party to perform its respective
      obligations under this Credit Agreement, or any of the other Credit Documents
      or
      (c) the validity or enforceability of this Credit Agreement, or any of the
      other
      Credit Documents, or the rights and remedies of the Lenders hereunder or
      thereunder taken as a whole.

    


    "Material
      Foreign Subsidiary"
      means
      (i) any Foreign Subsidiary that is directly owned by a Credit Party in which
      the
      revenue for any period attributable to such Foreign Subsidiary and its
      Subsidiaries exceeds 7.5% of consolidated revenue for the Borrower and its
      Subsidiaries for such period and/or (ii) those Foreign Subsidiaries that are
      directly owned by Credit Parties in which the revenue for any period
      attributable to all such Foreign Subsidiaries and their Subsidiaries exceeds
      15%
      of consolidated revenue for the Borrower and its Subsidiaries for such
      period.

    


    "Moody's"
      means
      Moody's Investors Service, Inc., or any successor or assignee of the business
      of
      such company in the business of rating securities.

     

    "Multiemployer
      Plan"
      means a
      Plan covered by Title IV of ERISA which is a multiemployer plan as defined
      in
      Sections 3(37) or 4001(a)(3) of ERISA.

    


    "Multiple
      Employer Plan"
      means a
      Plan covered by Title IV of ERISA, other than a Multiemployer Plan, which any
      Credit Party or any of its Subsidiaries or any ERISA Affiliate and at least
      one
      employer other than a Credit Party or any of its Subsidiaries or any ERISA
      Affiliate are contributing sponsors.

    


    "Net
      Cash Proceeds"
      means
      the aggregate cash or Cash Equivalents proceeds received by the Borrower or
      any
      Subsidiary in respect of any Asset Disposition, Equity Issuance, Debt Issuance
      or Involuntary Disposition, net of (a) direct costs incurred in connection
      therewith (including, without limitation, legal, accounting and investment
      banking fees, and sales commissions), (b) taxes paid or payable as a result
      thereof and (c) in the case of any Asset Disposition, the amount necessary
      to
      retire any Indebtedness secured by a Permitted Lien (ranking senior to any
      Lien
      of the Agent) on the related property;
      it
      being understood that "Net Cash Proceeds" shall include, without limitation,
      any
      cash or Cash Equivalents received upon the sale or other disposition of any
      non-cash consideration received by the Borrower or any Subsidiary in any Asset
      Disposition, Equity Issuance, Debt Issuance or Involuntary
      Disposition.


    
      
        
        

      

      
        15

        
          

        

      

      
        
        

      

    

    "Net
      Income"
      means,
      for any period, the net income after taxes for such period of the Borrower
      and
      its Subsidiaries on a consolidated basis, as determined in accordance with
      GAAP.

    


    "Net
      Worth"
      means,
      as of any date, shareholders' equity or net worth of the Borrower and its
      Subsidiaries on a consolidated basis, as determined in accordance with
      GAAP.

    


    "Non-Consenting
      Lender"
      has the
      meaning assigned to such term in Section 3.16. 

    


    "Non-Excluded
      Taxes"
      has the
      meaning assigned to such term in Section 3.14.

    


    "Note"
      or
      "Notes"
      means
      the Revolving Notes, the Term Notes, the Incremental Term Notes and/or the
      Swingline Note, individually or collectively, as appropriate.

    


    "Notice
      of Borrowing"
      means a
      request by the Borrower for a Loan, in the form of Exhibit
      2.1.

    


    "Notice
      of Continuation/Conversion"
      means a
      request by the Borrower to continue an existing Eurodollar Loan to a new
      Interest Period or to convert a Eurodollar Loan to a Base Rate Loan or a Base
      Rate Loan to a Eurodollar Loan, in the form of Exhibit
      2.4.

    


    "Operating
      Lease"
      means,
      as applied to any Person, any lease (including, without limitation, leases
      which
      may be terminated by the lessee at any time) of any property (whether real,
      personal or mixed) which is not a Capital Lease other than any such lease in
      which that Person is the lessor.

    


    "Participant"
      has the
      meaning assigned to such term in Section 11.3(d).

    


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

    


    "Permitted
      Acquisition"
      means
      (a) the JEWEL Acquisition and (b) the acquisition of all of the Capital Stock
      of
      another Person, all or substantially all of the assets of another Person or
      a
      brand or product line of another Person, provided that each of the following
      conditions are satisfied: (i) prior to such acquisition, the Borrower shall
      deliver to the Agent and Lenders a Pro Forma Compliance Certificate
      demonstrating that after giving effect to such acquisition on a Pro Forma Basis,
      the Credit Parties and their Subsidiaries would have been in compliance with
      all
      the financial covenants set forth in Section 7.12, (ii) simultaneously with
      any
      such acquisition, the Borrower shall have taken all action required under
      applicable law, or reasonably requested by the Agent, to grant to the Agent,
      for
      the benefit of the Lenders, a valid and perfected first-priority security
      interest in all the assets acquired pursuant to such acquisition, (iii) the
      acquisition is consummated pursuant to a negotiated acquisition agreement and
      involves the purchase of a consumer product or product line similar to those
      manufactured, distributed or sold by the Borrower as of the date hereof, or
      of a
      business that manufactures, distributes or sells one or more consumer products
      or product lines, similar to those manufactured, distributed or sold by the
      Borrower as of the date hereof, (iv) after giving effect to the acquisition,
      the
      representations and warranties set forth in Section 6 hereof shall be true
      and
      correct in all material respects on and as of the date of such acquisition
      with
      the same effect as though made on and as of such date, (v) no Default or Event
      of Default exists and is continuing or would result from such acquisition and
      (vi) the aggregate consideration (including cash and non-cash consideration,
      assumption of liabilities, 

    
      
        
        

      

      
        16

        
          

        

      

      
        
        

      

    

    Earn
      Out
      Obligations and any contingency payments associated therewith) paid by the
      Borrower and its Subsidiaries shall not exceed $100,000,000 in the aggregate
      for
      all such acquisitions occurring subsequent to the Fifth Amendment Effective
      Date.

    


    "Permitted
      Investments"
      means
      Investments which are (a) cash or Cash Equivalents, (b) accounts receivable
      created, acquired or made in the ordinary course of business and payable or
      dischargeable in accordance with customary trade terms, (c) Investments in
      any
      Credit Party, (d) loans to directors, officers, employees, agents, customers
      or
      suppliers in the ordinary course of business for reasonable business expenses,
      not to exceed in the aggregate $500,000 at any one time, (e) Investments
      subsequent to the Closing Date in Foreign Subsidiaries (other than HBA Indemnity
      Company, Ltd.) not to exceed $5,000,000 in the aggregate at any time
      outstanding, (f) Investments in (including any insurance premiums funded to)
      HBA
      Indemnity Company, Ltd. not to exceed $8,000,000 in the aggregate in any fiscal
      year of the Borrower, (g) purchases or redemptions of Capital Stock of the
      Borrower permitted by Section 8.7, (h) redemptions or repurchases of
      Subordinated Debt permitted by Section 8.11, (i) Permitted Acquisitions and
      (j)
      all those existing Investments of the Borrower identified on Schedule
      1.1(b)
      attached
      hereto.

    


    "Permitted
      Liens"
      means
      (a) Liens securing Credit Party Obligations, (b) Liens for taxes not yet due
      or
      Liens for taxes being contested in good faith by appropriate proceedings for
      which adequate reserves determined in accordance with GAAP have been established
      (and as to which the property subject to any such Lien is not yet subject to
      foreclosure, sale or loss on account thereof), (c) Liens in respect of property
      imposed by law arising in the ordinary course of business such as materialmen's,
      mechanics', warehousemen's, carrier's, landlords' and other nonconsensual
      statutory Liens which are not due and payable or, if due and payable, are being
      contested in good faith by appropriate proceedings for which adequate reserves
      determined in accordance with GAAP have been established (and as to which the
      property subject to any such Lien is not yet subject to foreclosure, sale or
      loss on account thereof), (d) pledges or deposits made in the ordinary course
      of
      business to secure payment of worker's compensation insurance, unemployment
      insurance, pensions or social security programs, (e) Liens arising from good
      faith deposits in connection with or to secure performance of tenders, bids,
      leases, government contracts, performance and return-of-money bonds and other
      similar obligations incurred in the ordinary course of business (other than
      obligations in respect of the payment of borrowed money), (f) Liens arising
      from
      good faith deposits in connection with or to secure performance of statutory
      obligations and surety and appeal bonds, (g) easements, rights-of-way,
      restrictions (including zoning restrictions), minor defects or irregularities
      in
      title and other similar charges or encumbrances not, in any material respect,
      impairing the use of the encumbered property for its intended purposes, (h)
      judgment Liens that would not constitute an Event of Default, (i) Liens on
      assets of any Person securing purchase money Indebtedness (including Capital
      Leases) to the extent permitted under Section 8.1(e), provided
      that any
      such Lien attaches to such assets concurrently with or within 90 days after
      the
      acquisition thereof, (j) Liens arising by virtue of any statutory or common
      law
      provision relating to banker's liens, rights of setoff or similar rights as
      to
      deposit accounts or other funds maintained with a creditor depository
      institution and (k) Liens existing on the date hereof and identified on
Schedule
      8.2;
      provided that no such Lien shall extend to any property other than the property
      subject thereto on the Closing Date.

    


    "Person"
      means
      any natural person, corporation, limited liability company, trust, joint
      venture, association, company, partnership, Governmental Authority or other
      entity.

    


    "Plan"
      means
      any employee benefit plan (as defined in Section 3(3) of ERISA) which is covered
      by ERISA and with respect to which any Credit Party or any of its Subsidiaries
      or any 

    
      
        
        

      

      
        17

        
          

        

      

      
        
        

      

    

    ERISA
      Affiliate is (or, if such plan were terminated at such time, would under Section
      4069 of ERISA be deemed to be) an "employer" within the meaning of Section
      3(5)
      of ERISA.

    


    "Pledge
      Agreement"
      means
      the Pledge Agreement, executed and delivered by each of the applicable Credit
      Parties in favor of the Agent, for the benefit of the Lenders, to secure their
      obligations under the Credit Documents, as amended, modified, extended, renewed
      or replaced from time to time.

    


    "Pro
      Forma Basis"
      means,
      in connection with any Permitted Acquisition, any Asset Disposition (including
      any contemporaneous pro forma application of the net proceeds therefrom), any
      Restricted Payment permitted by Section 8.7, any repayment of the principal
      amount of Convertible Notes permitted by Section 8.10 or any prepayment of
      Subordinated Debt pursuant to Section 8.11, that such transaction shall be
      deemed to have occurred on the first day of the twelve month period ending
      on
      the last day of the Borrower's most recently completed fiscal quarter for which
      the Borrower has delivered the officer's certificate pursuant to Section
      7.1(c).

    


    "Pro
      Forma Compliance Certificate"
      means a
      certificate of a Responsible Officer of the Borrower containing reasonably
      detailed calculation of the financial covenants contained in Section 7.12 as
      of
      the most recent fiscal quarter end for which the Borrower has delivered
      financial statements pursuant to Section 7.1(a) or (b) after giving effect
      to
      the applicable transaction on a Pro Forma Basis.

    


    "Purchased
      Assets"
      has the
      meaning assigned to such term in the Asset Purchase Agreement. 

    


    "Real
      Properties"
      means
      the collective reference to each of the facilities and real properties owned,
      leased or operated by the Borrower and its Subsidiaries at such
      time.

    


    "Regulation
      D, T, U, or X"
      means
      Regulation D, T, U or X, respectively, of the Board of Governors of the Federal
      Reserve System as from time to time in effect and any successor to all or a
      portion thereof.

    


    "Related
      Parties"
      means,
      with respect to any specified Person, such Person's Affiliates and the partners,
      directors, officers, employees, agents and advisors of such Person and such
      Person's Affiliates.

     

    "Reportable
      Event"
      means a
      "reportable event" as defined in Section 4043 of ERISA with respect to which
      the
      notice requirements to the PBGC have not been waived.

    


    "Required
      Lenders"
      means,
      at any time, Lenders holding in the aggregate more than fifty percent (50%)
      of
      (a) the Revolving Commitments and the outstanding Term Loan or (b) if the
      Revolving Commitments have been terminated, the outstanding Loans, LOC
      Obligations, Swingline Loans and participations therein.
      The
      Revolving Commitment of, and the outstanding Loans held or deemed held by,
      any
      Defaulting Lender shall be excluded for purposes of making a determination
      of
      Required Lenders.

    


    "Requirement
      of Law"
      means,
      as to any Person, the articles or certificate of incorporation and by-laws
      or
      other organizational or governing documents of such Person, and any law, treaty,
      rule or regulation or final, non-appealable determination of an arbitrator
      or a
      court or other 

    
      
        
        

      

      
        18

        
          

        

      

      
        
        

      

    

    Governmental
      Authority, in each case applicable to or binding upon such Person or to which
      any of its material property is subject.

     

    "Responsible
      Officer"
      means
      the chief executive officer, president or chief financial officer of a Credit
      Party. Any document delivered hereunder that is signed by a Responsible Officer
      of a Credit Party shall be conclusively presumed to have been authorized by
      all
      necessary corporate, partnership and/or other action on the part of such Credit
      Party and such Responsible Officer shall be conclusively presumed to have acted
      on behalf of such Credit Party.

    


    "Restricted
      Payment"
      has the
      meaning assigned to such term in Section 8.7.

    


    "Revolving
      Commitment"
      means,
      with respect to each Lender, the commitment of such Lender in an aggregate
      principal amount at any time outstanding of up to such Lender's Commitment
      Percentage of the Revolving Committed Amount, (i) to make Revolving Loans in
      accordance with the provisions of Section 2.1(a), (ii) to purchase participation
      interests in Letters of Credit in accordance with the provisions of Section
      2.2
      and (iii) to purchase participation interests in Swingline Loans in accordance
      with the provisions of Section 2.3.

    


    "Revolving
      Committed Amount"
      means
      ONE HUNDRED MILLION DOLLARS ($100,000,000) or such lesser amount as the
      Revolving Committed Amount may be reduced pursuant to Section 2.1(d);
provided
      that the
Revolving
      Committed Amount may
      be
      increased to up to ONE HUNDRED FIFTY MILLION DOLLARS ($150,000,000) pursuant
      to
      Section 2.1(g).

    


    "Revolving
      Loans"
      means
      the Revolving Loans made to the Borrower pursuant to Section 2.1.

    


    "Revolving
      Note"
      or
      "Revolving
      Notes"
      means
      the promissory notes of the Borrower in favor of each of the Lenders evidencing
      the Revolving Loans provided pursuant to Section 2.1, individually or
      collectively, as appropriate, as such promissory notes may be amended, modified,
      supplemented, extended, renewed or replaced from time to time and as evidenced
      in the form of Exhibit
      2.6(a).

    


    "Sarbanes-Oxley"
      means
      the Sarbanes-Oxley Act of 2002.

    


    "S&P"
      means
      Standard & Poor's Ratings Group, a division of McGraw Hill, Inc., or any
      successor or assignee of the business of such division in the business of rating
      securities.

    


    "Scheduled
      Funded Debt Payments"
      means,
      as of the date of determination, for the Borrower and its Subsidiaries, on
      a
      consolidated basis, the sum of all scheduled payments of principal on Funded
      Debt for the applicable period ending on the date of determination (including
      the principal component of payments due on Capital Leases and Synthetic Leases
      during the applicable period ending on the date of determination); it being
      understood that Scheduled Funded Debt Payments shall not include voluntary
      prepayments or the mandatory prepayments required pursuant to Section
      3.3.

    


    "SEC"
      means
      the Securities and Exchange Commission, or any federal Governmental Authority
      succeeding to any of its principal functions.

    


    "Security
      Agreement"
      means
      that certain Security Agreement dated as of the date hereof and executed and
      delivered by the Credit Parties in favor of the Agent for the benefit of the
      

    
      
        
        

      

      
        19

        
          

        

      

      
        
        

      

    

    Lenders
      to secure their obligations under the Credit Documents, as such may be amended,
      modified, extended, renewed, restated or replaced from time to
      time.

    


    "Senior
      Secured Indebtedness"
      means,
      with respect to the Borrower and its Subsidiaries on a consolidated basis,
      the
      sum of (a) all senior Funded Debt that is secured by any Lien plus
      (b) all
      commitments of any Person to make advances of senior Funded Debt, it being
      understood and agreed, for the avoidance of doubt, that until commitments are
      made by the Lenders to make advances pursuant to Section 2.1(c) and Section
      2.1(g), such amounts referenced in such Sections shall not be considered Senior
      Secured Indebtedness. 

    


    "Senior
      Secured Leverage Ratio"
      means
      as of the end of each fiscal quarter of the Borrower, with respect to the
      Borrower and its Subsidiaries on a consolidated basis, the ratio of (a) Funded
      Debt that is secured by any Lien on such date to (b) EBITDA for the twelve
      month
      period ending on such date.

    


    "Signal"
      means
      Signal Investment & Management Co., a Delaware corporation, which is a
      wholly-owned subsidiary of the Borrower.

    


    "Single
      Employer Plan"
      means
      any Plan which is covered by Title IV of ERISA, but which is not a Multiemployer
      Plan.

    


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

    


    "Subordinated
      Debt"
      means
      the unsecured Indebtedness evidenced by the Subordinated Indenture or by the
      guarantees thereof in an aggregate principal amount not to exceed
      $107,500,000.

    


    "Subordinated
      Indenture"
      means
      that certain Indenture with respect to the 7% Subordinated Notes due 2014 dated
      as of February 26, 2004 among the Borrower, the guarantors party thereto and
      SouthTrust Bank, as trustee, as amended, modified, restated or supplemented
      from
      time to time.

    


    "Subsidiary"
      means,
      as to any Person, (a) any corporation more than 50% of whose stock of any class
      or classes having by the terms thereof ordinary voting power to elect a majority
      of the directors of such corporation (irrespective of whether or not at the
      time, any class or classes of such corporation shall have or might have voting
      power by reason of the happening of any 

    
      
        
        

      

      
        20

        
          

        

      

      
        
        

      

    

    contingency)
      is at the time owned by such Person directly or indirectly through Subsidiaries,
      and (b) any partnership, association, joint venture or other entity in which
      such person directly or indirectly through Subsidiaries has more than a 50%
      equity interest at any time. 

    


    "Swingline
      Commitment"
      means
      the commitment of the Swingline Lender to make Swingline Loans hereunder in
      an
      aggregate principal amount at any time outstanding of up to the Swingline
      Committed Amount.

    


    "Swingline
      Committed Amount"
      means
      FIVE MILLION DOLLARS ($5,000,000).

    


    "Swingline
      Lender"
      means
      Bank of America in its capacity as provider of Swingline Loans, or any successor
      swingline lender hereunder.

    


    "Swingline
      Loan"
      has the
      meaning assigned to such term in Section 2.3(a).

    


    "Swingline
      Loan Notice"
      means a
      notice of a borrowing of Swingline Loans pursuant to Section 2.3(b), which,
      if
      in writing, shall be substantially in the form of Exhibit
      2.3.

    


    "SwingLine
      Note"
      means
      the promissory notes of the Borrower in favor of the Swingline Lender evidencing
      the Swingline Loans provided pursuant to Section 2.3, as such promissory note
      may be amended, modified, supplemented, extended, renewed or replaced from
      time
      to time and as evidenced in the form of Exhibit
      2.6(b).

    


    "Synthetic
      Lease"
      means
      any synthetic lease, tax retention operating lease, off-balance sheet loan
      or
      similar off-balance sheet financing product where such transaction is considered
      borrowed money indebtedness for tax purposes but is classified as an Operating
      Lease.

    


    "Term
      Loan"
      has
      the
      meaning specified in Section 2.1(b).

    


    "Term
      Loan Commitment"
      means,
      as to each Lender, its obligation to make its portion of the Term Loan to the
      Borrower pursuant to Section 2.1(b), in the principal amount set forth opposite
      such Lender's name on Schedule 1.1(a). The aggregate principal amount of the
      Term Loan Commitments of all of the Lenders as in effect on the Fifth Amendment
      Effective Date is THREE HUNDRED MILLION DOLLARS ($300,000,000).

    


    "Term
      Loan Maturity Date"
      means
      January 2, 2013.

    


    "Term
      Note"
      or
      "Term
      Notes"
      means
      the
      promissory notes of the Borrower in favor of each of the Lenders evidencing
      the
      Term Loans provided pursuant to Section 2.1, individually or collectively,
      as
      appropriate, as such promissory notes may be amended, modified, supplemented,
      extended, renewed or replaced from time to time and as evidenced in the form
      of
Exhibit
      2.6(c).

    


    "Termination
      Date"
      means
      November 15, 2010.

    


    "Termination
      Event"
      means
      (a) with respect to any Plan, the occurrence of a Reportable Event or the
      substantial cessation of operations (within the meaning of Section 4062(e)
      of
      ERISA); (b) the withdrawal of any Credit Party or any of its Subsidiaries or
      any
      ERISA Affiliate from a Multiple Employer Plan during a plan year in which it
      was
      a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA),
      or the termination of a Multiple Employer Plan; (c) the distribution of a notice
      of intent to terminate or the actual termination of a Plan pursuant to


    
      
        
        

      

      
        21

        
          

        

      

      
        
        

      

    

    Section
      4041(a)(2) or 4041A of ERISA; (d) the institution of proceedings to terminate
      or
      the actual termination of a Plan by the PBGC under Section 4042 of ERISA; (e)
      any event or condition which might reasonably constitute grounds under Section
      4042 of ERISA for the termination of, or the appointment of a trustee to
      administer, any Plan; or (f) the complete or partial withdrawal of any Credit
      Party or any of its Subsidiaries or any ERISA Affiliate from a Multiemployer
      Plan.

    


    "Treasury
      Management Agreement"
      means
      any agreement governing the provision of treasury or cash management services,
      including deposit accounts, funds transfer, automated clearinghouse, zero
      balance accounts, returned check concentration, controlled disbursement,
      lockbox, account reconciliation and reporting and trade finance services.


    


    "Unreimbursed
      Amount"
      has the
      meaning assigned to such term in Section 2.2(c)(i).

    "Unused
      Fee"
      has the
      meaning assigned to such term in Section 3.4(a).

    


    "Unused
      Fee Calculation Period"
      has the
      meaning assigned to such term in Section 3.4(a).

    


    "Unused
      Revolving Committed Amount"
      means,
      for any period, the amount by which (a) the then applicable Revolving Committed
      Amount exceeds (b) the daily average sum for such period of (i) the outstanding
      aggregate principal amount of all Revolving Loans plus
      (ii) the
      outstanding aggregate principal amount of all LOC Obligations. For
      purposes of clarification, Swingline Loans shall not be considered outstanding
      for purposes of determining the Unused Revolving Committed Amount.

    


    1.2 Computation
      of Time Periods and Other Definitional Provisions.

    


    For
      purposes of computation of periods of time hereunder, the word "from" means
      "from and including" and the words "to" and "until" each mean "to but
      excluding." References in this Credit Agreement to "Articles", "Sections",
      "Schedules" or "Exhibits" shall be to Articles, Sections, Schedules or Exhibits
      of or to this Credit Agreement unless otherwise specifically provided.


    


    1.3 Accounting
      Terms.

    


    (a) Except
      as
      otherwise specifically prescribed herein, all accounting terms not specifically
      or completely defined herein shall be construed in conformity with, and all
      financial data (including financial ratios and other financial calculations)
      required to be submitted pursuant to this Credit Agreement shall be prepared
      in
      conformity with, GAAP applied on a consistent basis, as in effect from time
      to
      time, applied in a manner consistent with that used in preparing the audited
      financial statements of the Borrower for the fiscal year ended November 30,
      2005; provided,
      however,
      that
      calculations of Indebtedness attributable to any Synthetic Lease or the implied
      interest component of any Synthetic Lease shall be made by the Borrower in
      accordance with accepted financial practice and consistent with the terms of
      such Synthetic Lease.

    


    (b) The
      Borrower will provide a written summary of material changes in GAAP and in
      the
      consistent application thereof with each annual and quarterly officer's
      certificate delivered in accordance with Section 7.1(c). If at any time any
      change in GAAP would affect the computation of any financial ratio or
      requirement set forth in any Credit Document, and either the Borrower or the
      Required Lenders shall so request, the Agent, the Lenders and the Borrower
      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


    
      
        
        

      

      
        22

        
          

        

      

      
        
        

      

    

    approval
      of the Required Lenders); provided that,
      until
      so amended, (i) such ratio or requirement shall continue to be computed in
      accordance with GAAP prior to such change therein and (ii) the Borrower shall
      provide to the Agent and the Lenders financial statements and other documents
      required under this Credit Agreement or as reasonably requested hereunder
      setting forth a reconciliation between calculations of such ratio or requirement
      made before and after giving effect to such change in GAAP.

    


    (c) Notwithstanding
      the above, the parties hereto acknowledge and agree that, for purposes of all
      calculations made under the financial covenants set forth in Section 7.12,
      financial statement items (whether positive or negative) attributable to the
      assets acquired in any Permitted Acquisition and any Indebtedness incurred
      by
      the Borrower or any of its Subsidiaries in order to consummate such Permitted
      Acquisition shall be included to the extent relating to any period applicable
      in
      such calculations occurring on or after the date of such Permitted Acquisition
      on a Pro Forma Basis (and, if any Indebtedness incurred by the Borrower or
      any
      of its Subsidiaries in order to consummate such Permitted Acquisition has a
      floating or formula rate, then the implied rate of interest for such
      Indebtedness for the applicable period shall be determined by utilizing the
      rate
      which is or would be in effect with respect to such Indebtedness as at the
      relevant date of determination). Furthermore, the parties hereto agree that,
      for
      purposes of all calculations made under the financial covenants set forth in
      Section 7.12 after any Asset Disposition, such calculations shall be conducted
      in a manner similar to any calculation related to a Permitted Acquisition in
      similar circumstances except that the applicable financial statement items
      and
      Indebtedness attributable to the Person or Property related to the applicable
      Asset Disposition shall be excluded (rather than included) from such calculation
      on a Pro Forma Basis.

    


    (d) Unless
      otherwise specified herein, the amount of a Letter of Credit at any time shall
      be deemed to be the stated amount of such Letter of Credit in effect at such
      time; provided,
      however,
      that
      with respect to any Letter of Credit that, by its terms or the terms of any
      LOC
      Document related thereto, provides for one or more automatic increases in the
      stated amount thereof, the amount of such Letter of Credit shall be deemed
      to be
      the maximum stated amount of such Letter of Credit after giving effect to all
      such increases, whether or not such maximum stated amount is in effect at such
      time.

     

    


    1.4 Times
      of
      Day.

    


    Unless
      otherwise specified, all references herein to times of day shall be references
      to Eastern time (daylight or standard, as applicable).

    


    SECTION
      2

    


    CREDIT
      FACILITIES

    


    2.1 Loans.

    


    (a) Revolving
      Commitment.
      Subject
      to the terms and conditions set forth herein, each Lender severally agrees
      to
      make revolving loans (each a "Revolving
      Loan"
      and
      collectively the "Revolving
      Loans")
      to the
      Borrower, in Dollars, at any time and from time to time, during the period
      from
      and including the Closing Date to but not including the Termination Date (or
      such earlier date if the Revolving Committed Amount has been terminated as
      provided herein); provided,
      however,
      that
      (i) the sum of the aggregate amount of Revolving Loans outstanding plus the
      aggregate amount of LOC Obligations outstanding plus the aggregate amount of
      Swingline Loans outstanding shall not exceed the Revolving Committed Amount,
      and
      (ii) with respect to each individual Lender, such Lender's outstanding Revolving
      Loans shall not exceed such Lender's Commitment Percentage of the Revolving
      Committed Amount.


    
      
        
        

      

      
        23

        
          

        

      

      
        
        

      

    

    (b) Term
      Loan Commitment.
      Subject
      to the terms and conditions set forth herein, each Lender severally agrees
      to
      make its portion of a term loan (the "Term
      Loan")
      to the
      Borrower in Dollars on the Fifth Amendment Effective Date in an amount not
      to
      exceed such Lender's Term Loan Commitment. Amounts repaid on the Term Loan
      may
      not be reborrowed. The Term Loan may consist of Base Rate Loans or Eurodollar
      Loans, as further provided herein, provided,
      however,
      all
      Borrowings made on the Fifth Amendment Effective Date shall be made as Base
      Rate
      Loans.

    


    (c) Incremental
      Term Loan Commitment.
      Subject
      to Section 2.1(h), on the effective date of the Incremental Term Loan Lender
      Joinder Agreement, each Incremental Term Loan Lender severally agrees to make
      its portion of a term loan (the "Incremental
      Term Loan")
      in a
      single advance to the Borrower in the amount of its respective Incremental
      Term
      Loan Commitment as set forth in the Incremental Term Loan Lender Joinder
      Agreement; provided,
      however,
      that
      after giving effect to such advances, the aggregate principal amount of the
      Incremental Term Loan shall not exceed the aggregate amount of the Incremental
      Term Loan Commitments of the Incremental Term Loan Lenders. Amounts repaid
      on
      the Incremental Term Loan may not be reborrowed. The Incremental Term Loan
      may
      consist of Base Rate Loans, Eurodollar Rate Loans, or a combination thereof,
      as
      the Borrower may request.

    


    (d) Method
      of Borrowing for Loans.
      By no
      later than 11:00 a.m. (i) on the Business Day of the requested borrowing of
      Loans that will be Base Rate Loans or (ii) three Business Days prior to the
      date
      of the requested borrowing of Loans that will be Eurodollar Loans, the Borrower
      shall submit a written Notice of Borrowing from a Responsible Officer of the
      Borrower in the form of Exhibit
      2.1
      (or
      telephone notice promptly confirmed in writing) to the Agent setting forth
      (A)
      the amount requested, (B) whether such Loans shall accrue interest at the
      Adjusted Base Rate or the Adjusted Eurodollar Rate, (C) with respect to Loans
      that will be Eurodollar Loans, the Interest Period applicable thereto and (D)
      evidence that the Borrower has complied in all respects with Section
      5.2.

    


    (e) Funding
      of Loans.
      Upon
      receipt of a Notice of Borrowing, the Agent shall promptly inform the applicable
      Lenders as to the terms thereof. Each such Lender shall make its Commitment
      Percentage of the requested Loans available to the Agent by 1:00 p.m. on the
      date specified in the Notice of Borrowing by deposit, in Dollars, of immediately
      available funds at the Agent's Office. The amount of the requested Loans will
      then be made available to the Borrower by the Agent by crediting the account
      of
      the Borrower on the books of such office of the Agent, to the extent the amount
      of such Loans are made available to the Agent;
      provided,
      however,
      that
      if, on the date of a borrowing of Revolving Loans, there are LOC Borrowings
      outstanding, then the proceeds of such borrowing, first, shall be applied to
      the
      payment in full of any such LOC Borrowings and second,
      shall
      be made available to the Borrower as provided above.

    


    (f) Reductions
      of Revolving Committed Amount.
      Upon at
      least three Business Days' notice, the Borrower shall have the right to
      permanently terminate or reduce the aggregate unused amount of the Revolving
      Committed Amount at any time or from time to time; provided that (i) each
      partial reduction shall be in an aggregate amount at least equal to $1,000,000
      and in integral multiples of $500,000 above such amount and (ii) no reduction
      shall be made which would reduce the Revolving Committed Amount to an amount
      less than the sum of the aggregate amount of outstanding Revolving Loans plus
      the aggregate amount of outstanding LOC Obligations plus the aggregate amount
      of
      outstanding Swingline Loans. Any reduction in (or termination of) the Revolving
      Committed Amount shall be permanent and may not be reinstated.

    


    (g) The
      Borrower may at any time and from time to time, upon prior written notice by
      the
      Borrower to the Agent, increase the Revolving Committed Amount by up to FIFTY
      MILLION DOLLARS ($50,000,000) with additional Revolving Commitments from any
      existing Lender or new Revolving Commitments from any other Person selected by
      the Borrower and approved by the Agent; provided
      that:


    
      
        
        

      

      
        24

        
          

        

      

      
        
        

      

    

    (i) any
      such
      increase shall be in a minimum principal amount of $5,000,000 and in integral
      multiples of $5,000,000 in excess thereof;

    


    (ii) no
      Default or Event of Default shall be continuing at the time of any
      such increase;

    


    (iii) no
      existing Lender shall be under any obligation to increase its Revolving
      Commitment and any such decision whether to increase its Revolving Commitment
      shall be  in
      such
      Lender's sole and absolute discretion; and

    


    (iv) any
      new
      Lender shall join this Agreement by executing such joinder  documents
      reasonably required by the Agent.

    


    (h) The
      Borrower may, at any time, upon prior written notice by the Borrower to the
      Agent, institute the Incremental Term Loan in an aggregate principal amount
      up
      to FIFTY MILLION DOLLARS ($50,000,000); provided
      that

    


    (i) the
      Borrower (in consultation and coordination with the Agent) shall obtain
      commitments for the amount of the increase from existing Lenders or other
      Persons reasonably acceptable to the Agent, which Lenders shall join in this
      Credit Agreement as Incremental Term Loan Lenders by executing an Incremental
      Term Loan Joinder Agreement or other agreement reasonably acceptable to the
      Agent;

    


    (ii) the
      Incremental Term Loan shall be in a minimum aggregate principal amount of $25
      million and integral multiples of $5 million in excess thereof;

    


    (iii) no
      Default or Event of Default shall exist and be continuing at the time of funding
      of the Incremental Term Loan;

    


    (iv) no
      existing
      Lender shall be under any obligation to commit to make any portion of the
      Incremental Term Loan and any such decision whether to make any portion of
      the
      Incremental Term Loan shall be in such Lender's sole and absolute
      discretion;

    


    (v) the
      Applicable Percentage of each Incremental Term Loan shall be as set forth in
      the
      Incremental Term Loan Joinder Agreement;

    


    (vi) the
      Incremental Term Loan Maturity Date shall be as set forth in the Incremental
      Term Loan Joinder Agreement, provided
      that
      such date shall not be earlier than the Term Loan Maturity Date;

    


    (vii) the
      scheduled principal amortization payments under the Incremental Term Loan shall
      be as set forth in the Incremental Term Loan Joinder Agreement; provided
      that the
      weighted average life of the Incremental Term Loan shall not be less than the
      weighted life to maturity of either of (A) the Revolving Loans or (B) the Term
      Loan;

    


    (viii) Schedule
      1.1(a)
      shall be
      deemed revised to reflect the commitments and commitment percentages of the
      Incremental Term Loan Lenders as set forth in the Incremental Term Loan Joinder
      Agreement;


    
      
        
        

      

      
        25

        
          

        

      

      
        
        

      

    

    (ix) as
      a
      condition precedent to funding of the Incremental Term Loan and the
      effectiveness of the Incremental Term Loan Lender Joinder Agreement, the
      Borrower shall deliver to the Agent a certificate of each Credit Party dated
      as
      of the date of such institution and effectiveness (in sufficient copies for
      each
      Lender) signed by a Responsible Officer of such Credit Party (A) certifying
      and
      attaching the resolutions adopted by such Credit Party approving or consenting
      to the Incremental Term Loan, and (B) in the case of the Borrower, certifying
      that, before and after giving effect to the Incremental Term Loan, (x) the
      representations and warranties contained in Section 6 and the other Credit
      Documents are true and correct in all material respects on and as of the date
      of
      such increase, except to the extent that such representations and warranties
      specifically refer to an earlier date, in which case they are true and correct
      in all material respects as of such earlier date and (y) no Default or Event
      of
      Default exists; and

    


    (x) as
      a
      condition precedent to such institution of the Incremental Term Loan and the
      effectiveness of the Incremental Term Loan Joinder Agreement, the
      Agent
      shall have received a calculation satisfactory to the Agent of the Fixed Charge
      Coverage Ratio (as defined in the Subordinated Indenture) for the Borrower's
      most recently ended four fiscal quarters for which internal financial statements
      are available at an amount of at least 2.0 to 1.0 on a pro forma basis after
      giving effect to the incurrence of the Incremental Term Loan.

    


    2.2 Letter
      of
      Credit Subfacility.

    


    (a) The
      Letter of Credit Commitment.

    


    (i) From
      the
      Closing Date until the Letter of Credit Expiration Date, in reliance upon the
      agreements of the other Lenders set forth in this Section 2.2 and subject to
      the
      terms and conditions hereof and of the LOC Documents, if any, and such other
      terms and conditions which the Issuing Lender may reasonably require, the
      Issuing Lender shall issue, and the Lenders shall participate in, such standby
      Letters of Credit in Dollars as the Borrower may request for its own account
      or
      for the account of a Subsidiary as provided herein, in a form acceptable to
      the
      Issuing Lender, for the purposes hereinafter set forth; provided
      that (i)
      the aggregate amount of LOC Obligations shall not exceed the LOC Committed
      Amount and (ii) the
      sum
      of the aggregate amount of Revolving Loans outstanding plus the aggregate amount
      of LOC Obligations outstanding plus the aggregate amount of Swingline Loans
      outstanding shall not exceed the Revolving Committed Amount.

    


    (ii) The
      Issuing Lender shall not issue any Letter of Credit if:

    


    (A) 
      the
      expiry date of such requested Letter of Credit would occur more than twelve
      months after the date of issuance, unless the Required Lenders have approved
      such expiry date; or

    


    (B) the
      expiry date of such requested Letter of Credit would occur after the Letter
      of
      Credit Expiration Date, unless all the Lenders have approved such expiry
      date.

    


    (iii) The
      Issuing Lender shall not be under any obligation to issue any Letter of Credit
      if:


    
      
        
        

      

      
        26

        
          

        

      

      
        
        

      

    

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

    


    (B) the
      issuance of such Letter of Credit would violate any Requirments of Law or one
      or
      more policies of the Issuing Lender;

    


    (C) except
      as
      otherwise agreed by the Agent and the Issuing Lender, such Letter of Credit
      is
      in an initial face amount less than $500,000; 

    


    (D) such
      Letter of Credit is to be denominated in a currency other than
      Dollars;

    


    (E) such
      Letter of Credit contains any provisions for automatic reinstatement of the
      stated amount after any drawing thereunder;
      or

    


    (F) a
      default
      of any Lender's obligations to fund under Section 2.2(c) exists or any Lender
      is
      at such time a Defaulting Lender hereunder, unless the Issuing Lender has
      entered into satisfactory arrangements with the Borrower or such Lender to
      eliminate the Issuing Lender's risk with respect to such Lender.

    


    (iv) The
      Issuing Lender shall not amend any Letter of Credit if the Issuing Lender would
      not be permitted at such time to issue such Letter of Credit in its amended
      form
      under the terms hereof.

    


    (v) The
      Issuing Lender shall be under no obligation to amend any Letter of Credit if
      (A) the Issuing Lender would have no obligation at such time to issue such
      Letter of Credit in its amended form under the terms hereof, or (B) the
      beneficiary of such Letter of Credit does not accept the proposed amendment
      to
      such Letter of Credit.

    


    (b) Procedures
      for Issuance and Amendment of Letters of Credit.

    


    (i) Each
      Letter of Credit shall be issued or amended, as the case may be, upon the
      request of the Borrower delivered to the Issuing Lender (with a copy to the
      Agent) in the form of a Letter of Credit Application, appropriately completed
      and signed by a Responsible Officer of the Borrower. Such Letter of Credit
      Application must be received by the Issuing Lender and the Agent not later
      than
      11:00 a.m. at least five (5) Business Days (or such later date and time as
      the
      Agent and the Issuing Lender may agree in a particular instance in their sole
      discretion) prior to the proposed issuance date or date of amendment, as the
      case may be. In the case of a request for an initial issuance of a Letter of
      Credit, such Letter of Credit Application shall specify in form and detail
      satisfactory to the Issuing Lender: (A) the proposed issuance date of the
      requested Letter of Credit (which shall be a Business Day); (B) the amount
      thereof; (C) the expiry date 

    
      
        
        

      

      
        27

        
          

        

      

      
        
        

      

    

    thereof;
      (D) the name and address of the beneficiary thereof; (E) the documents to be
      presented by such beneficiary in case of any drawing thereunder; (F) the full
      text of any certificate to be presented by such beneficiary in case of any
      drawing thereunder; and (G) such other matters as the Issuing Lender may
      require. In the case of a request for an amendment of any outstanding Letter
      of
      Credit, such Letter of Credit Application shall specify in form and detail
      satisfactory to the Issuing Lender (A) the Letter of Credit to be amended;
      (B)
      the proposed date of amendment thereof (which shall be a Business Day); (C)
      the
      nature of the proposed amendment; and (D) such other matters as the Issuing
      Lender may require. Additionally, the Borrower shall furnish to the Issuing
      Lender and the Agent such other documents and information pertaining to
      such requested Letter of Credit issuance or amendment, including any LOC
      Documents, as the Issuing Lender or the Agent may require.

    


    (ii) Promptly
      after receipt of any Letter of Credit Application, the Issuing Lender will
      confirm with the Agent (by telephone or in writing) that the Agent has received
      a copy of such Letter of Credit Application from the Borrower and, if not,
      the
      Issuing Lender will provide the Agent with a copy thereof. Unless the Issuing
      Lender has received written notice from any Lender, the Agent or any Credit
      Party, at least one Business Day prior to the requested date of issuance or
      amendment of the applicable Letter of Credit, that one or more applicable
      conditions contained in Section 5 shall not be satisfied, then, subject to
      the
      terms and conditions hereof, the Issuing Lender shall, on the requested date,
      issue a Letter of Credit for the account of the Borrower or the applicable
      Subsidiary or enter into the applicable amendment, as the case may be, in each
      case in accordance with the Issuing Lender's usual and customary business
      practices. Immediately upon the issuance of each Letter of Credit, each Lender
      shall be deemed to, and hereby irrevocably and unconditionally agrees to,
      purchase from the Issuing Lender a risk participation in such Letter of Credit
      in an amount equal to the product of such Lender's Commitment Percentage
times
      the
      amount of such Letter of Credit.

    


    (iii) Promptly
      after its delivery of any Letter of Credit or any amendment to a Letter of
      Credit to an advising bank with respect thereto or to the beneficiary thereof,
      the Issuing Lender will also deliver to the Borrower and the Agent a true and
      complete copy of such Letter of Credit or amendment.

    


    (c) Drawings
      and Reimbursements; Funding of Participations.

    


    (i) Upon
      receipt from the beneficiary of any Letter of Credit of any notice of drawing
      under such Letter of Credit, the Issuing Lender shall notify the Borrower and
      the Agent thereof. Not later than 11:00 a.m. on the date of any payment by
      the
      Issuing Lender under a Letter of Credit (each such date, an "Honor
      Date"),
      the
      Borrower shall reimburse the Issuing Lender through the Agent in an amount
      equal
      to the amount of such drawing. If the Borrower fails to so reimburse the Issuing
      Lender by such time, the Agent shall promptly notify each Lender of the Honor
      Date, the amount of the unreimbursed drawing (the "Unreimbursed
      Amount"),
      and
      the amount of such Lender's Commitment Percentage thereof. In such event, the
      Borrower shall be deemed to have requested a borrowing of Base Rate Loans to
      be
      disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,
      without regard to the minimum and multiples specified in Section 2.5 for the
      principal amount of Base Rate Loans, but subject to the amount of the unutilized
      portion of the Revolving Committed Amount and the conditions set forth in
      Section 5.2 (other than the delivery of a Notice of Borrowing). Any notice
      given
      by the Issuing Lender or the Agent pursuant to this Section 2.2(c)(i) may be
      given by telephone if immediately confirmed in writing; provided
      that the
      lack of such an immediate confirmation shall not affect the conclusiveness
      or
      binding effect of such notice.


    
      
        
        

      

      
        28

        
          

        

      

      
        
        

      

    

    (ii) Each
      Lender (including the Lender acting as Issuing Lender) shall upon any notice
      pursuant to Section 2.2(c)(i) make funds available to the Agent for the account
      of the Issuing Lender at the Agent's Office in an amount equal to its Commitment
      Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business
      Day specified in such notice by the Agent, whereupon, subject to the provisions
      of Section 2.2(c)(iii), each Lender that so makes funds available shall be
      deemed to have made a Base Rate Loan to the Borrower in such amount. The Agent
      shall remit the funds so received to the Issuing Lender.

    


    (iii) With
      respect to any Unreimbursed Amount that is not fully refinanced by a borrowing
      of Base Rate Loans because the conditions set forth in Section 5.2 cannot be
      satisfied or for any other reason, the Borrower shall be deemed to have incurred
      from the Issuing Lender an LOC Borrowing in the amount of the Unreimbursed
      Amount that is not so refinanced, which LOC Borrowing shall be due and payable
      on demand (together with interest) and shall bear interest at the default rate
      of interest described in Section 3.1(b). In such event, each Lender's payment
      to
      the Agent for the account of the Issuing Lender pursuant to Section 2.2(c)(ii)
      shall be deemed payment in respect of its participation in such LOC Borrowing
      and shall constitute an LOC Advance from such Lender in satisfaction of its
      participation obligation under this Section 2.2.

    


    (iv) Until
      each Lender funds its Revolving Loan or LOC Advance pursuant to this Section
      2.2(c) to reimburse the Issuing Lender for any amount drawn under any Letter
      of
      Credit, interest in respect of such Lender's Commitment Percentage of such
      amount shall be solely for the account of the Issuing Lender.

    


    (v) Each
      Lender's obligation to make Revolving Loans or LOC Advances to reimburse the
      Issuing Lender for amounts drawn under Letters of Credit, as contemplated by
      this Section 2.2(c), shall be absolute and unconditional and shall not be
      affected by any circumstance, including (A) any set-off, counterclaim,
      recoupment, defense or other right which such Lender may have against the
      Issuing Lender, the Borrower or any other Person for any reason whatsoever;
      (B)
      the occurrence or continuance of a Default or Event of Default, or (C) any
      other
      occurrence, event or condition, whether or not similar to any of the foregoing;
      provided,
      however,
      that
      each Lender's obligation to make Revolving Loans pursuant to this Section 2.2(c)
      is subject to the conditions set forth in Section 5.2 (other than delivery
      by
      the Borrower of a Notice of Borrowing). No such making of an LOC Advance shall
      relieve or otherwise impair the obligation of the Borrower to reimburse the
      Issuing Lender for the amount of any payment made by the Issuing Lender under
      any Letter of Credit, together with interest as provided herein.

    


    (vi) If
      any
      Lender fails to make available to the Agent for the account of the Issuing
      Lender any amount required to be paid by such Lender pursuant to the foregoing
      provisions of this Section 2.2(c) by the time specified in Section 2.2(c)(ii),
      the Issuing Lender shall be entitled to recover from such Lender (acting through
      the Agent), on demand, such amount with interest thereon for the period from
      the
      date such payment is required to the date on which such payment is immediately
      available to the Issuing Lender at a rate per annum equal to the Federal Funds
      Rate from time to time in effect. A certificate of the Issuing Lender submitted
      to any Lender (through the Agent) with respect to any amounts owing under this
      clause (vi) shall be conclusive absent manifest error.


    
      
        
        

      

      
        29

        
          

        

      

      
        
        

      

    

    (d) Repayment
      of Participations.

    


    (i) At
      any
      time after the Issuing Lender has made a payment under any Letter of Credit
      and
      has received from any Lender such Lender's LOC Advance in respect of such
      payment in accordance with Section 2.2(c), if the Agent receives for the account
      of the Issuing Lender any payment in respect of the related Unreimbursed Amount
      or interest thereon (whether directly from the Borrower or otherwise, including
      proceeds of cash collateral applied thereto by the Agent), the Agent will
      distribute to such Lender its Commitment Percentage thereof (appropriately
      adjusted, in the case of interest payments, to reflect the period of time during
      which such Lender's LOC Advance was outstanding) in the same funds as those
      received by the Agent.

    


    (ii) If
      any
      payment received by the Agent for the account of the Issuing Lender pursuant
      to
      Section 2.2(c)(i) is required to be returned under any of the circumstances
      described in Section 3.9 (including pursuant to any settlement entered into
      by
      the Issuing Lender in its discretion), each Lender shall pay to the Agent for
      the account of the Issuing Lender its Commitment Percentage thereof on demand
      of
      the Agent, plus interest thereon from the date of such demand to the date such
      amount is returned by such Lender, at a rate per annum equal to the Federal
      Funds Rate from time to time in effect.

    


    (e) Obligations
      Absolute.
      The
      obligation of the Borrower to reimburse the Issuing Lender for each drawing
      under each Letter of Credit and to repay each LOC Borrowing shall be absolute,
      unconditional and irrevocable, and shall be paid strictly in accordance with
      the
      terms of this Credit Agreement under all circumstances, including the
      following:

    


    (i) any
      lack
      of validity or enforceability of such Letter of Credit, this Credit Agreement
      or
      any other Credit Document;

    


    (ii) the
      existence of any claim, counterclaim, set-off, defense or other right that
      the
      Borrower or any Subsidiary may have at any time against any beneficiary or
      any
      transferee of such Letter of Credit (or any Person for whom any such beneficiary
      or any such transferee may be acting), the Issuing Lender or any other Person,
      whether in connection with this Credit Agreement, the transactions contemplated
      hereby or by such Letter of Credit or any agreement or instrument relating
      thereto, or any unrelated transaction;

    


    (iii) any
      draft, demand, certificate or other document presented under such 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; or any
      loss
      or delay in the transmission or otherwise of any document required in order
      to
      make a drawing under such Letter of Credit;

    


    (iv) any
      payment by the Issuing Lender under such Letter of Credit against presentation
      of a draft or certificate that does not strictly comply with the terms of such
      Letter of Credit; or any payment made by the Issuing Lender under such Letter
      of
      Credit to any Person purporting to be a trustee in bankruptcy,
      debtor-in-possession, assignee for the benefit of creditors, liquidator,
      receiver or other representative of or successor to any beneficiary or any
      transferee of such Letter of Credit, including any arising in connection with
      any proceeding under the Bankruptcy Code or any similar laws;
      or


    
      
        
        

      

      
        30

        
          

        

      

      
        
        

      

    

    (v) any
      other
      circumstance or happening whatsoever, whether or not similar to any of the
      foregoing, including any other circumstance that might otherwise constitute
      a
      defense available to, or a discharge of, the Borrower or any
      Subsidiary.

    


    The
      Borrower shall promptly examine a copy of each Letter of Credit and each
      amendment thereto that is delivered to it and, in the event of any claim of
      noncompliance with the Borrower's instructions or other irregularity, the
      Borrower will immediately notify the Issuing Lender. The Borrower shall be
      conclusively deemed to have waived any such claim against the Issuing Lender
      and
      its correspondents unless such notice is given as aforesaid.

     

    (f) Role
      of Issuing Lender.
      Each
      Lender and the Borrower agree that, in paying any drawing under a Letter of
      Credit, the Issuing Lender shall not have any responsibility to obtain any
      document (other than any sight draft, certificates and documents expressly
      required by such Letter of Credit) or to ascertain or inquire as to the validity
      or accuracy of any such document or the authority of the Person executing or
      delivering any such document. None of the Issuing Lender, any Agent-Related
      Person or any of the respective correspondents, participants or assignees of
      the
      Issuing Lender shall be liable to any Lender for (i) any action taken or omitted
      in connection herewith at the request or with the approval of the Lenders or
      the
      Required Lenders, as applicable; (ii) any action taken or omitted in the absence
      of gross negligence or willful misconduct; or (iii) the due execution,
      effectiveness, validity or enforceability of any document or instrument related
      to any Letter of Credit or Letter of Credit Application. The Borrower hereby
      assumes all risks of the acts or omissions of any beneficiary or transferee
      with
      respect to its use of any Letter of Credit; provided,
      however,
      that
      this assumption is not intended to, and shall not, preclude the Borrower's
      pursuing such rights and remedies as it may have against the beneficiary or
      transferee at law or under any other agreement. None of the Issuing Lender,
      any
      Agent-Related Person or any of the respective correspondents, participants
      or
      assignees of the Issuing Lender, shall be liable or responsible for any of
      the
      matters described in clauses (i) through (v) of Section 2.2(e); provided,
      however,
      that
      anything in such clauses to the contrary notwithstanding, the Borrower may
      have
      a claim against the Issuing Lender, and the Issuing Lender may be liable to
      the
      Borrower, to the extent, but only to the extent, of any direct, as opposed
      to
      consequential or exemplary, damages suffered by the Borrower which the Borrower
      proves were caused by the Issuing Lender's willful misconduct or gross
      negligence or the Issuing Lender's willful failure to pay under any Letter
      of
      Credit after the presentation to it by the beneficiary of a sight draft and
      certificate(s) strictly complying with the terms and conditions of a Letter
      of
      Credit unless the Issuing Lender is prevented or prohibited from so paying
      as a
      result of any order or directive of any court or other Governmental Authority.
      In furtherance and not in limitation of the foregoing, the Issuing Lender may
      accept documents that appear on their face to be in order, without
      responsibility for further investigation, regardless of any notice or
      information to the contrary, and the Issuing Lender shall not be responsible
      for
      the validity or sufficiency of any instrument transferring or assigning or
      purporting to transfer or assign a 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.

    


    (g) Cash
      Collateral.
      Upon
      the request of the Agent, (i) if the Issuing Lender has honored any full or
      partial drawing request under any Letter of Credit and such drawing has resulted
      in an LOC Borrowing, or (ii) if, as of the Letter of Credit Expiration Date,
      any
      Letter of Credit for any reason remains outstanding and partially or wholly
      undrawn, the Borrower shall immediately Cash Collateralize the then outstanding
      amount of all LOC Obligations (in an amount equal to such outstanding amount
      determined as of the date of such LOC Borrowing or the Letter of Credit
      Expiration Date, as the case may be). Section 3.3(b) and Section 3.8 set forth
      certain additional requirements to deliver Cash Collateral hereunder. For
      purposes of this Section 2.2, Section 3.3(b) and Section 3.8, "Cash
      Collateralize"
      means
      to pledge and deposit with or deliver to the Agent, for the benefit of the
      Issuing Lender and the Lenders, 

    
      
        
        

      

      
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    as
      collateral for the LOC Obligations, cash or deposit account balances pursuant
      to
      documentation in form and substance satisfactory to the Agent and the Issuing
      Lender (which documents are hereby consented to by the Lenders). Derivatives
      of
      such term have corresponding meanings. The Borrower hereby grants to the Agent,
      for the benefit of the Issuing Lender and the Lenders, a security interest
      in
      all such cash, deposit accounts and all balances therein and all proceeds of
      the
      foregoing. Cash Collateral shall be maintained in blocked, non-interest bearing
      deposit accounts at Bank of America.

     

    (h) Designation
      of other Subsidiaries as Account Parties.
      Notwithstanding
      that a Letter of Credit issued or outstanding hereunder is in support of any
      obligations of, or is for the account of, a Subsidiary, the Borrower shall
      be
      obligated to reimburse the Issuing Lender hereunder for any and all drawings
      under such Letter of Credit. The Borrower hereby acknowledges that the issuance
      of Letters of Credit for the account of Subsidiaries inures to the benefit
      of
      the Borrower, and that the Borrower's business derives substantial benefits
      from
      the businesses of such Subsidiaries.

    


    (i) Applicability
      of ISP98. Unless
      otherwise expressly agreed by the Issuing
      Lender and
      the
      Borrower when a Letter of Credit is issued, the rules of the ISP shall apply
      to
      each standby Letter of Credit.

    


    (j) Conflict
      with LOC Documents.
      In the
      event of any conflict between this Credit Agreement and any LOC Document
      (including any letter of credit application), this Credit Agreement shall
      control.

    


    2.3 Swingline
      Loans.

    


    (a) Swingline
      Subfacility.
      Subject
      to the terms and conditions set forth herein, the Swingline Lender agrees to
      make swingline loans (each a "Swingline
      Loan"
      and
      collectively the "Swingline
      Loans")
      to the
      Borrower, in Dollars, at
      any
      time and from time to time, during the period from and including the Closing
      Date to but not including the Termination Date (or such earlier date if the
      Revolving Committed Amount has been terminated as provided herein) in
      an
      aggregate amount not to exceed at any time outstanding the amount of the
      Swingline Committed Amount, notwithstanding the fact that such Swingline Loans,
      when aggregated with the Commitment Percentages of the outstanding principal
      amount of Revolving Loans and LOC Obligations of the Swingline Lender in its
      capacity as a Lender of Revolving Loans, may exceed the amount of such Lender's
      Revolving Commitment; provided,
      however,
      that
      (i)
      the sum of the aggregate amount of Revolving Loans outstanding plus the
      aggregate amount of LOC Obligations outstanding plus the aggregate amount of
      Swingline Loans outstanding shall not exceed the Revolving Committed Amount,
      and
      (ii) the outstanding Swingline Loans shall not exceed the Swingline Committed
      Amount,
      and
provided,
      further,
      that
      the Borrower shall not use the proceeds of any Swingline Loan to refinance
      any
      outstanding Swingline Loan. Within the foregoing limits, and subject to the
      other terms and conditions hereof, the Borrower may borrow under this Section
      2.3, prepay under Section 3.3(a), and reborrow under this Section 2.3. Each
      Swingline Loan shall bear interest at such rate mutually agreed to between
      the
      Borrower and the Swingline Lender (which shall be confirmed with the Agent)
      or,
      in the absence of such mutual agreement, shall be a Base Rate Loan. Immediately
      upon the making of a Swingline Loan, each Lender shall be deemed to, and hereby
      irrevocably and unconditionally agrees to, purchase from the Swingline Lender
      a
      risk participation in such Swingline Loan in an amount equal to the product
      of
      such Lender's Commitment Percentage times
      the
      amount of such Swingline Loan.

    


    (b) Borrowing
      Procedures.
      Each
      borrowing of Swingline Loans shall be made upon the Borrower's irrevocable
      notice to the Swingline Lender and the Agent, which may be given by telephone.
      Each such notice must be received by the Swingline Lender and the Agent not
      later than 1:00 p.m. on the requested borrowing date, and shall specify (i)
      the
      amount to be borrowed and (ii) the requested borrowing date, which shall be
      a
      Business Day. Each such telephonic notice must be confirmed
      promptly

    
      
        
        

      

      
        32

        
          

        

      

      
        
        

      

    

     by
      delivery to the Swingline Lender and the Agent of a written Swingline Loan
      Notice, appropriately completed and signed by a Responsible Officer of the
      Borrower. Promptly after receipt by the Swingline Lender of any telephonic
      Swingline Loan Notice, the Swingline Lender will confirm with the Agent (by
      telephone or in writing) that the Agent has also received such Swingline Loan
      Notice and, if not, the Swingline Lender will notify the Agent (by telephone
      or
      in writing) of the contents thereof. Unless the Swingline Lender has received
      notice (by telephone or in writing) from the Agent (including at the request
      of
      any Lender) prior to 2:00 p.m. on the date of the proposed borrowing of
      Swingline Loans (A) directing the Swingline Lender not to make such Swingline
      Loan as a result of the limitations set forth in the proviso to the first
      sentence of Section 2.3(a), or (B) that one or more of the applicable conditions
      specified in Section 5 is not then satisfied, then, subject to the terms and
      conditions hereof, the Swingline Lender will, not later than 3:00 p.m. on the
      borrowing date specified in such Swingline Loan Notice, make the amount of
      its
      Swingline Loan available to the Borrower.

    


    (c) Refinancing
      of Swingline Loans.

    


    (i) The
      Swingline Lender at any time in its sole and absolute discretion may request,
      on
      behalf of the Borrower (which hereby irrevocably requests and authorizes the
      Swingline Lender to so request on its behalf), that each Lender make a Base
      Rate
      Loan in an amount equal to such Lender's Commitment Percentage of the amount
      of
      Swingline Loans then outstanding. Such request shall be made in writing (which
      written request shall be deemed to be a Notice of Borrowing for purposes hereof)
      and in accordance with the requirements of Section 2.1(b), without regard to
      the
      minimum and multiples specified in Section 2.5 for the principal amount of
      Base
      Rate Loans, but subject to the unutilized portion of the Revolving Committed
      Amount and the conditions set forth in Section 5.2. The Swingline Lender shall
      furnish the Borrower with a copy of the applicable Notice of Borrowing promptly
      after delivering such notice to the Agent. Each Lender shall make an amount
      equal to its Commitment Percentage of the amount specified in such Notice of
      Borrowing available to the Agent in immediately available funds for the account
      of the Swingline Lender at the Agent's Office not later than 1:00 p.m. on the
      day specified in such Notice of Borrowing, whereupon, subject to Section
      2.3(c)(ii), each Lender that so makes funds available shall be deemed to have
      made a Base Rate Loan to the Borrower in such amount. The Agent shall remit
      the
      funds so received to the Swingline Lender.

    


    (ii) If
      for
      any reason any Swingline Loan cannot be refinanced by such a borrowing of
      Revolving Loans in accordance with Section 2.3(c)(i), the request for Base
      Rate
      Loans submitted by the Swingline Lender as set forth herein shall be deemed
      to
      be a request by the Swingline Lender that each of the Lenders fund its risk
      participation in the relevant Swingline Loan and each Lender's payment to the
      Agent for the account of the Swingline Lender pursuant to Section 2.3(c)(i)
      shall be deemed payment in respect of such participation.

    


    (iii) If
      any
      Lender fails to make available to the Agent for the account of the Swingline
      Lender any amount required to be paid by such Lender pursuant to the foregoing
      provisions of this Section 2.3(c) by the time specified in Section 2.3(c)(i),
      the Swingline Lender shall be entitled to recover from such Lender (acting
      through the Agent), on demand, such amount with interest thereon for the period
      from the date such payment is required to the date on which such payment is
      immediately available to the Swingline Lender at a rate per annum equal to
      the
      Federal Funds Rate from time to time in effect. A certificate of the Swingline
      Lender submitted to any Lender (through the Agent) with respect to any amounts
      owing under this clause (iii) shall be conclusive absent manifest
      error.


    
      
        
        

      

      
        33

        
          

        

      

      
        
        

      

    

    (iv) Each
      Lender's obligation to make Revolving Loans or to purchase and fund risk
      participations in Swingline Loans pursuant to this Section 2.3(c) shall be
      absolute and unconditional and shall not be affected by any circumstance,
      including (A) any set-off, counterclaim, recoupment, defense or other right
      that
      such Lender may have against the Swingline Lender, the Borrower or any other
      Person for any reason whatsoever, (B) the occurrence or continuance of a Default
      or Event of Default, or (C) any other occurrence, event or condition, whether
      or
      not similar to any of the foregoing; provided,
      however,
      that
      each Lender's obligation to make Revolving Loans pursuant to this Section 2.3(c)
      is subject to the conditions set forth in Section 5.2. No such purchase or
      funding of risk participations shall relieve or otherwise impair the obligation
      of the Borrower to repay Swingline Loans, together with interest as provided
      herein.

    


    (d) Repayment
      of Participations.
      

    


    (i) At
      any
      time after any Lender has purchased and funded a risk participation in a
      Swingline Loan, if the Swingline Lender receives any payment on account of
      such
      Swingline Loan, the Swingline Lender will distribute to such Lender its
      Commitment Percentage of such payment (appropriately adjusted, in the case
      of
      interest payments, to reflect the period of time during which such Lender's
      risk
      participation was funded) in the same funds as those received by the Swingline
      Lender.

    


    (ii) If
      any
      payment received by the Swingline Lender in respect of principal or interest
      on
      any Swingline Loan is required to be returned by the Swingline Lender under
      any
      of the circumstances described in Section 3.9 (including pursuant to any
      settlement entered into by the Swingline Lender in its discretion), each Lender
      shall pay to the Swingline Lender its Commitment Percentage thereof on demand
      of
      the Agent, plus interest thereon from the date of such demand to the date such
      amount is returned, at a rate per annum equal to the Federal Funds Rate. The
      Agent will make such demand upon the request of the Swingline Lender.


    


    (e) Interest
      for Account of Swingline Lender.
      The
      Swingline Lender shall be responsible for invoicing the Borrower for interest
      on
      the Swingline Loans. Until each Lender funds its Revolving Loans that are Base
      Rate Loans or risk participation pursuant to this Section 2.3 to refinance
      such
      Lender's Commitment Percentage of any Swingline Loan, interest in respect of
      such share shall be solely for the account of the Swingline Lender.

    


    (f) Payments
      Directly to Swingline Lender.
      The
      Borrower shall make all payments of principal and interest in respect of the
      Swingline Loans directly to the Swingline Lender.

    


    2.4 Continuations
      and Conversions.

    


    Subject
      to the terms of Section 5.2, the Borrower shall have the option, on any Business
      Day, to continue in existence Eurodollar Loans for a subsequent Interest Period,
      to convert Base Rate Loans into Eurodollar Loans or to convert Eurodollar Loans
      into Base Rate Loans; provided, however, that (a) each such continuation or
      conversion must be requested by the Borrower pursuant to a written Notice of
      Continuation/Conversion from a Responsible Officer of the Borrower, in the
      form
      of Exhibit
      2.4,
      in
      compliance with the terms set forth below, (b) except as provided in Section
      3.12, Eurodollar Loans may only be continued or converted into Base Rate Loans
      on the last day of the Interest Period applicable thereto, (c) Eurodollar Loans
      may not be continued nor may Base Rate Loans be converted into Eurodollar Loans
      during the existence and continuation of a Default or Event of Default,
(d)
      Swingline Loans may not be converted into Eurodollar Loans and
      (e) any
      request to extend a Eurodollar Loan that 

    
      
        
        

      

      
        34

        
          

        

      

      
        
        

      

    

    fails
      to
      comply with the terms hereof or any failure to request an extension of a
      Eurodollar Loan at the end of an Interest Period shall constitute a request
      for
      a conversion to a Base Rate Loan on the last day of the applicable Interest
      Period. Each continuation or conversion must be requested by the Borrower no
      later than 11:00 a.m. (i) one Business Day prior to the date for a requested
      conversion of a Eurodollar Loan to a Base Rate Loan or (ii) three Business
      Days
      prior to the date for a requested extension of a Eurodollar Loan or conversion
      of a Base Rate Loan to a Eurodollar Loan, in each case pursuant to a written
      Notice of Continuation/Conversion submitted to the Agent which shall set forth
      (A) whether the Borrower wishes to continue or convert such Loans and (B) if
      the
      request is to continue a Eurodollar Loan or convert a Base Rate Loan to a
      Eurodollar Loan, the Interest Period applicable thereto.

    


    2.5 Minimum Amounts.

    


    (a) Loans.
      Each
      request for a borrowing, conversion or continuation shall be subject to the
      requirements that (a) each Eurodollar Loan shall be in a minimum amount of
      $1,000,000 and in integral multiples of $500,000 in excess thereof, (b) each
      Base Rate Loan shall be in a minimum amount of the lesser of $1,000,000 (and
      integral multiples of $500,000 in excess thereof) or, in the case of Revolving
      Loans, the remaining amount available under the Revolving Committed Amount
      and
      (c) no more than six Eurodollar Loans shall, in the aggregate, be outstanding
      hereunder at any one time. For the purposes of this Section, all Eurodollar
      Loans with the same Interest Periods shall be considered as one Eurodollar
      Loan,
      but Eurodollar Loans with different Interest Periods, even if they begin on
      the
      same date, shall be considered as separate Eurodollar Loans.

    


    (b) Swingline
      Loans.
      Each
      Swingline Loan shall be a minimum amount of $100,000 (and integral multiples
      of
      $100,000 in excess thereof).

    


    2.6 Notes.

    


    (a) Revolving
      Notes.
      The
      Revolving Loans made by each Lender shall be evidenced by a duly executed
      promissory note of the Borrower to each applicable Lender in the face amount
      of
      its Commitment Percentage of the Revolving Committed Amount in substantially
      the
      form of Exhibit
      2.6(a).

    


    (b) Swingline
      Note.
      The
      Swingline Loans made by the Swingline Lender shall be evidenced by a duly
      executed promissory note of the Borrower to the Swingline Lender in the face
      amount of the Swingline Loan Committed Amount in substantially the form of
      Exhibit
      2.6(b).

    


    (c) Term
      Notes.
      Upon
      the request of any Lender, the Borrower shall execute and deliver to such Lender
      (through the Agent) a promissory note, substantially the form of Exhibit
      2.6(c),
      which
      shall evidence such Lender's portion of the Term Loan.

    


    (d) Incremental
      Term
      Notes.
      Upon
      the request of any Incremental Term Loan Lender, the Borrower shall execute
      and
      deliver to such Incremental Term Loan Lender (through the Agent) a promissory
      note, substantially the form of Exhibit
      2.6(c),
      which
      shall evidence such Incremental Term Loan Lender's portion of the Incremental
      Term Loan.


    
      
        
        

      

      
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    SECTION
      3

    


    GENERAL
      PROVISIONS APPLICABLE TO LOANS

    


    3.1 Interest.

    


    (a) Interest
      Rate.
      Subject
      to the provisions of subsection (b) below, (i) each Eurodollar Loan shall bear
      interest on the outstanding principal amount thereof for each Interest Period
      at
      a rate per annum equal to the Eurodollar Rate for such Interest Period
plus
      the
      Applicable Percentage, (ii) each Base Rate Loan shall bear interest on the
      outstanding principal amount thereof from the applicable borrowing date at
      a
      rate per annum equal the Base Rate plus
      the
      Applicable Percentage and (iii) each Swingline Loan shall bear interest on
      the
      outstanding principal amount thereof from the applicable borrowing date at
      a
      rate per annum to be mutually agreed to between the Borrower and the Swingline
      Lender in accordance with Section 2.3(a).

    


    (b) Default
      Rate of Interest.
      Upon
      the occurrence, and during the continuance, of an Event of Default, the
      principal of and, to the extent permitted by law, interest on the Loans and
      any
      other amounts owing hereunder or under the other Credit Documents (including
      without limitation fees and expenses) shall bear interest, payable on demand,
      at
      a per annum rate equal to 2% plus the rate which would otherwise be applicable
      (or if no rate is applicable, then the rate for Loans that are Base Rate Loans
      plus 2% per annum).

    


    (c) Interest
      Payments.
      Interest on Loans shall be due and payable in arrears on each Interest Payment
      Date. If an Interest Payment Date falls on a date which is not a Business Day,
      such Interest Payment Date shall be deemed to be the next succeeding Business
      Day (subject to accrual of interest for the period of such extension), except
      that in the case of Eurodollar Loans where the next succeeding Business Day
      falls in the next succeeding calendar month, then on the next preceding
      day.

    


    3.2 Place
      and
      Manner of Payments.

    


    (a) All
      payments to be made by the Borrower shall be made without condition or deduction
      for any counterclaim, defense, recoupment or setoff. Except as otherwise
      expressly provided herein, all payments by the Borrower hereunder shall be
      made
      to the Agent, for the account of the respective Lender to which such payment
      is
      owed, at the Agent's Office in Dollars and in immediately available funds not
      later than 2:00 p.m. on the date specified herein. The Agent will promptly
      distribute to each Lender its Commitment Percentage in respect of the relevant
      Loan (or other applicable share as provided herein) of such payment in like
      funds as received by wire transfer to such Lender's Lending Office. All payments
      received by the Agent after 2:00 p.m. shall be deemed received on the next
      succeeding Business Day and any applicable interest or fee shall continue to
      accrue. If any payment to be made by the Borrower shall come due on a day other
      than a Business Day, payment shall be made on the next following Business Day,
      and such extension of time shall be reflected on computing interest or fees,
      as
      the case may be.

    


    (b) (i) Funding
      by Lenders; Presumption by Agent.
      Unless
      the Agent shall have received notice from a Lender prior to the proposed date
      of
      any borrowing of Eurodollar Loans (or, in the case of any borrowing of Base
      Rate
      Loans, prior to 12:00 noon on the date of such borrowing) that such Lender
      will
      not make available to the Agent such Lender's share of such borrowing, the
      Agent
      may assume that such Lender has made such share available on such date in
      accordance with Sections 2.1(c) and 2.2 (or, in the case of a Borrowing of
      Base
      Rate Loans, that such Lender has made such share available in accordance with
      and at the time required by Sections 2.1(c) and 2.2) and may, in reliance upon
      such assumption, make available to the Borrower a corresponding amount. In
      such
      event, if a 

    
      
        
        

      

      
        36

        
          

        

      

      
        
        

      

    

    Lender
      has not in fact made its share of the applicable Borrowing available to the
      Agent, then the applicable Lender and the Borrower severally agree to pay to
      the
      Agent forthwith on demand such corresponding amount in immediately available
      funds with interest thereon, for each day from and including the date such
      amount is made available to the Borrower to but excluding the date of payment
      to
      the Agent, at (A) in the case of a payment to be made by such Lender, the
      greater of the Federal Funds Rate and a rate determined by the Agent in
      accordance with banking industry rules on interbank compensation, plus any
      administrative, processing or similar fees customarily charged by the Agent
      in
      connection with the foregoing, and (B) in the case of a payment to be made
      by
      the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower
      and such Lender shall pay such interest to the Agent for the same or an
      overlapping period, the Agent shall promptly remit to the Borrower the amount
      of
      such interest paid by the Borrower for such period. If such Lender pays its
      share of the applicable Borrowing to the Agent, then the amount so paid shall
      constitute such Lender's Loan included in such borrowing, it being understood
      and agreed that such Lender shall not have the right to begin receiving interest
      on its share of the applicable Borrowing until it pays its share of such
      Borrowing. Any payment by the Borrower shall be without prejudice to any claim
      the Borrower may have against a Lender that shall have failed to make such
      payment to the Agent.

    


    (ii) Payments
      by Borrower; Presumptions by Agent.
      Unless
      the Agent shall have received notice from the Borrower prior to the time at
      which any payment is due to the Agent for the account of the Lenders hereunder
      that the Borrower will not make such payment, the Agent may assume that the
      Borrower has made such payment on such date in accordance herewith and may,
      in
      reliance upon such assumption, distribute to the Lenders the amount due. In
      such
      event, if the Borrower has not in fact made such payment, then each of the
      Lenders severally agrees to repay to the Agent forthwith on demand the amount
      so
      distributed to such Lender, in immediately available funds with interest
      thereon, for each day from and including the date such amount is distributed
      to
      it to but excluding the date of payment to the Agent, at the greater of the
      Federal Funds Rate and a rate determined by the Agent in accordance with banking
      industry rules on interbank compensation.

    


    A
      notice
      of the Agent to any Lender or the Borrower with respect to any amount owing
      under this subsection (b) shall be conclusive, absent manifest
      error.

    


    (c) Failure
      to Satisfy Conditions Precedent.
      If any
      Lender makes available to the Agent funds for any Loan to be made by such Lender
      as provided in the foregoing provisions of this Section 3, and such funds are
      not made available to the Borrower by the Agent because the conditions set
      forth
      in Section 5 are not satisfied or waived in accordance with the terms hereof,
      the Agent shall return such funds (in like funds as received from such Lender)
      to such Lender, without interest.

    


    (d) Obligations
      of Lenders Several.
      The
      obligations of the Lenders hereunder to make Loans and to make payments pursuant
      to Section 11.5(c) are several and not joint. The failure of any Lender to
      make
      any Loan, to fund any such participation or to make any payment under Section
      11.5(c) on any date required hereunder shall not relieve any other Lender of
      its
      corresponding obligation to do so on such date, and no Lender shall be
      responsible for the failure of any other Lender to so make its Loan, to purchase
      its participation or to make its payment under Section 11.5(c).

    


    (e) Funding
      Source.
      Nothing
      herein shall be deemed to obligate any Lender to obtain the funds for any Loan
      in any particular place or manner or to constitute a representation by any
      Lender that it has obtained or will obtain the funds for any Loan in any
      particular place or manner.


    
      
        
        

      

      
        37

        
          

        

      

      
        
        

      

    

    (f) Insufficient
      Funds.
      If
      at any
      time insufficient funds are received by and available to the Agent to pay fully
      all amounts of principal, LOC Borrowings, interest and fees then due hereunder,
      such funds shall be applied (i) first,
      toward
      costs and expenses (including attorneys fees and amounts payable under Sections
      3.10, 3.13, 3.14 or 3.15) incurred by the Agent and each Lender,
      (ii) second,
      toward
      repayment of interest and fees then due hereunder, ratably among the parties
      entitled thereto in accordance with the amounts of interest and fees then due
      to
      such parties, and (iii) third,
      toward
      repayment of principal and LOC Borrowings then due hereunder, ratably among
      the
      parties entitled thereto in accordance with the amounts of principal and LOC
      Borrowings then due to such parties.

    


    3.3 Prepayments.

    


    (a) Voluntary
      Prepayments.

    


    (i) Loans.
      The
      Borrower shall have the right to prepay Revolving Loans, the Term Loan and
      the
      Incremental Term Loan in whole or in part from time to time without premium
      or
      penalty; provided,
      however,
      that
      (i) Eurodollar Loans may only be prepaid on three Business Days' prior written
      notice to the Agent and any prepayment of Eurodollar Loans will be subject
      to
      Section 3.15; (ii) Base Rate Loans may only be prepaid after written notice
      (confirmed by a telephone call from the Borrower) to the Agent not later than
      11:00 a.m. on the Business Day of the applicable prepayment; (iii) each such
      partial prepayment of Loans shall be in the minimum principal amount of $500,000
      and integral multiples of $500,000 in excess thereof, and (iv) any
      prepayment of the Term Loan or the Incremental Term Loan shall be applied pro
      rata to the Term Loan and the Incremental Term Loan, in each case to the
      remaining principal amortization payments thereof in the inverse order of
      maturity. Each
      such
      notice shall specify the date and amount of such prepayment and the Type(s)
      of
      Loans to be prepaid. The Agent will promptly notify each Lender of its receipt
      of each such notice, and of the amount of such Lender's Commitment Percentage
      of
      such prepayment. If such notice is given by the Borrower, the Borrower shall
      make such prepayment and the payment amount specified in such notice shall
      be
      due and payable on the date specified therein. Any prepayment of a Eurodollar
      Loan shall be accompanied by all accrued interest on the amount prepaid,
      together with any additional amounts required hereunder. Each such prepayment
      shall be applied to the Loans of the Lenders in accordance with their respective
      Commitment Percentages.

    


    (ii) Swingline
      Loans.
      The
      Borrower shall have the right to prepay Swingline Loans in
      whole
      or in part from time to time without premium or penalty;
      provided,
      however,
      that
      (i) the Borrower must provide prior written notice to the Swingline Lender
      (with
      a copy to the Agent), which notice must be received not later than 1:00 p.m.
      on
      the date of the prepayment, and (ii) each such prepayment shall be in a minimum
      principal amount of $100,000 and integral multiples of $100,000 in excess
      thereof.

     

    (b) Mandatory
      Prepayments.

    


    (i) Revolving
      Commitments.
      If
      at any
      time the sum of the aggregate amount of Revolving Loans outstanding plus the
      aggregate amount of LOC Obligations outstanding plus the aggregate amount of
      Swingline Loans outstanding exceeds the Revolving Committed Amount, the Borrower
      shall immediately make a principal payment on
      the
      Revolving Loans and/or Swingline Loans and/or Cash Collateralize the LOC
      Obligations, in an amount sufficient to eliminate such excess;
      provided,
      however,
      that
      the Borrower shall not be required to Cash Collateralize the LOC Obligations
      pursuant to this Section 3.3(b) unless after the prepayment in full of the
      Revolving 

    
      
        
        

      

      
        38

        
          

        

      

      
        
        

      

    

    Loans
      and
      Swingline Loans, the LOC Obligations exceed the Revolving Committed Amount
      then
      in effect. 

    


    (ii) Asset
      Dispositions.
      The
      Borrower shall promptly prepay the Term Loan and the Incremental Term Loan
      in an
      aggregate amount equal to 100% of the Net Cash Proceeds of all Asset
      Dispositions to the extent that the Net Cash Proceeds of all such Asset
      Dispositions received subsequent to the Fifth Amendment Effective Date exceed
      $5,000,000 (any such prepayment to be applied as set forth in clause (vi)
      below).

    


    (iii) Debt
      Issuances.
      Promptly
      upon
      receipt by the Borrower or any Subsidiary of the Net Cash Proceeds of any Debt
      Issuance, the Borrower shall prepay the Term Loan and the Incremental Term
      Loan
      in an aggregate amount equal to 100% of such Net Cash Proceeds (any such
      prepayment to be applied as set forth in clause (vi) below).

    


    (iv) Equity
      Issuances.
      Promptly
      upon
      the
      receipt by the Borrower or any Subsidiary of the Net Cash Proceeds of any Equity
      Issuance, the Borrower shall prepay the Term Loan and the Incremental Term
      Loan
      in an aggregate amount equal to 50% of such Net Cash Proceeds (any such
      prepayment to be applied as set forth in clause (vi) below).

    


    (v) Excess
      Cash Flow.
      Commencing
      with the fiscal year ending November 30, 2007, the Borrower shall prepay the
      Term Loan and the Incremental Term Loan on the Business Day following the date
      of delivery of the annual officer's certificate required by Section 7.1(c)
      for
      such fiscal year in an aggregate amount equal to (A) 50% of Excess Cash Flow
      for
      the prior fiscal year if the Leverage Ratio as of the last day of such fiscal
      year is equal to or greater than 3.50 to 1.0 or (B) 0% of Excess Cash Flow
      for
      the prior fiscal year if the Leverage Ratio as of the last day of such fiscal
      year is less than 3.50 to 1.0 (any such prepayment to be applied as set forth
      in
      clause (vi) below).

    


    (vi) Application
      of Mandatory Prepayments.
      All
      amounts required to be paid pursuant to this Section 3.3(b) shall be applied
      as
      follows:

    


    (A) with
      respect to all amounts prepaid pursuant to Section 3.3(b)(i), first
      to
      Revolving Loans and Swingline Loans and second
      to Cash
      Collateralize the LOC Obligations. 

    


    (B) with
      respect to all amounts prepaid pursuant to Sections 3.3(b)(ii), (iii), (iv)
      and
      (v), pro rata to the Term Loan and the Incremental Term Loan (in each case
      to
      the remaining principal amortization payments thereof in the inverse order
      of
      maturity).

    


    Within
      the parameters of the application set forth above, prepayments shall be applied
      first to Base Rate Loans and then to Eurodollar Loans in direct order of
      Interest Period maturities. All prepayments hereunder shall be subject to
      Section 3.15.

    


    3.4 Fees.

    


    (a) Unused
      Fees.
      In
      consideration of the Revolving Commitments of the Lenders hereunder, the
      Borrower agrees to pay to the Agent for the account of each Lender a fee (the
      "Unused
      Fee")
      computed at a per annum rate on the Unused Revolving Committed Amount during
      the
      Unused Fee Calculation Period (hereinafter defined) equal to the Applicable
      Percentage for Unused Fees then in effect. The Unused Fee shall commence to
      accrue on the Closing Date and shall be due and payable in arrears on the last
      business 

    
      
        
        

      

      
        39

        
          

        

      

      
        
        

      

    

    day
      of
      each March, June, September and December (and any date that the Revolving
      Committed Amount is reduced as provided in Section 2.1(d) and the Termination
      Date) for the immediately preceding quarter (or portion thereof) (each such
      quarter or portion thereof for which the Unused Fee is payable hereunder being
      herein referred to as an "Unused
      Fee Calculation Period"),
      beginning with the first of such dates to occur after the Closing
      Date.

    


    (b) Letter
      of Credit Fees.

    


    (i) Letter
      of Credit Fee.
      The
      Borrower shall pay to the Agent for the account of each Lender in accordance
      with its Commitment
      Percentage a
      Letter
      of Credit fee (the "Letter
      of Credit Fee")
      for
      each Letter of Credit equal to the Applicable Percentage times
      the
      daily maximum amount available to be drawn under such Letter of Credit (whether
      or not such maximum amount is then in effect under such Letter of Credit).
      Letter of Credit Fees shall be (i) computed on a quarterly basis in arrears
      and (ii) due and payable on the last Business Day of each March, June, September
      and December, commencing with the first such date to occur after the issuance
      of
      such Letter of Credit, on the Letter of Credit Expiration Date and thereafter
      on
      demand. If there is any change in the Applicable Percentage
      during
      any quarter, the daily maximum amount of each Letter of Credit shall be computed
      and multiplied by the Applicable Percentage
      separately for each period during such quarter that such Applicable Percentage
      was in
      effect.

    


    (ii) Issuing
      Lender Fees.
      In
      addition to the Letter of Credit Fee, the Borrower promises to pay to the Agent
      for the account of the Issuing Lender without sharing by the other Lenders
      (i) a
      letter of credit fronting fee of one-eighth of one percent (0.125%) on the
      average daily maximum amount available to be drawn under each Letter of Credit
      computed at a per annum rate for each day from the date of issuance to the
      date
      of expiration and (ii) the customary charges from time to time of the Issuing
      Lender with respect to the issuance, amendment, transfer, administration,
      cancellation and conversion of, and drawings under, such Letters of
      Credit.

    


    (c) Administrative
      Fees.
      The
      Borrower agrees to pay to the Agent, for its own account, an annual fee as
      agreed to between the Borrower and the Agent in the Fee Letter. 

    


    3.5 Repayment
      of Loans.

    


    (a) Revolving
      Loans.
      On the
      Termination Date, the entire outstanding principal balance of all Revolving
      Loans, together with accrued but unpaid interest and all other sums owing with
      respect thereto, shall be due and payable in full, unless accelerated sooner
      pursuant to Section 9.

    


    (b) Swingline
      Loans.
      Each
      Swingline Loan, together with accrued but unpaid interest and all other sums
      owing with respect thereto, shall be due and payable in full on the earlier
      to
      occur of (i) demand by the Swingline Lender and (ii) the Termination Date,
      unless accelerated sooner pursuant to Section 9.

    


    (c) Term
      Loan.
      The
      Borrower shall repay the outstanding principal amount of the Term Loan in
      installments on the dates and in the amounts set forth in the table below (as
      such installments may hereafter be adjusted as a result of prepayments made
      pursuant to Section 3.3), unless accelerated sooner pursuant to Section
      9.2:

    
      
        
        

      

      
        40

        
          

        

      

      
        
        

      

    

    


    
      	
              Payment
                Dates

            	
              Principal
                Amortization Payment

            
	 	 
	
              June
                30, 2007

            	
              $750,000

            
	
              September
                30, 2007

            	
              $750,000

            
	
              December
                31, 2007

            	
              $750,000

            
	
              March
                31, 2008

            	
              $750,000

            
	
              June
                30, 2008

            	
              $750,000

            
	
              September
                30, 2008

            	
              $750,000

            
	
              December
                31, 2008

            	
              $750,000

            
	
              March
                31, 2009

            	
              $750,000

            
	
              June
                30, 2009

            	
              $750,000

            
	
              September
                30, 2009

            	
              $750,000

            
	
              December
                31, 2009

            	
              $750,000

            
	
              March
                31, 2010

            	
              $750,000

            
	
              June
                30, 2010

            	
              $750,000

            
	
              September
                30, 2010

            	
              $750,000

            
	
              December
                31, 2010

            	
              $750,000

            
	
              March
                31, 2011

            	
              $750,000

            
	
              June
                30, 2011

            	
              $750,000

            
	
              September
                30, 2011

            	
              $750,000

            
	
              December
                31, 2011

            	
              $750,000

            
	
              March
                31, 2012

            	
              $750,000

            
	
              June
                30, 2012

            	
              $750,000

            
	
              September
                30, 2012

            	
              $750,000

            
	
              December
                31, 2012

            	
              $750,000

            
	
              Term
                Loan Maturity Date

            	
              Outstanding
                principal balance of Term Loan

            


    

    


    (d) Incremental
      Term Loan.
      The
      Borrower shall repay the outstanding principal amount of the Incremental Term
      Loan in installments on the dates and in the amounts set forth in the
      Incremental Term Loan Joinder Agreement (as such installments may hereafter
      be
      adjusted as a result of prepayments made pursuant to Section 3.3), unless
      accelerated sooner pursuant to Section 9.2.

    


    3.6 Computations
      of Interest and Fees.

    


    (a) Except
      for Base Rate Loans, in which case interest shall be computed on the basis
      of a
      365 or 366 day year as the case may be (unless the Base Rate is determined
      by
      reference to the Federal Funds Rate), all computations of interest and fees
      hereunder shall be made on the basis of the actual number of days elapsed over
      a
      year of 360 days. Interest shall accrue from and include the date of borrowing
      (or continuation or conversion) but exclude the date of payment.

    


    (b) It
      is the
      intent of the Lenders and the Credit Parties to conform to and contract in
      strict compliance with applicable usury law from time to time in effect. All
      agreements between the Lenders and the Borrower are hereby limited by the
      provisions of this paragraph which shall override and control all such
      agreements, whether now existing or hereafter arising and whether written or
      oral. In no way, nor in any event or contingency (including but not limited
      to
      prepayment or acceleration of the maturity of any obligation), shall the
      interest taken, reserved, contracted for, charged, or received under this Credit
      Agreement, under the Notes or otherwise, exceed the maximum nonusurious amount
      permissible under applicable law. If, from any possible construction of any
      of
      the Credit Documents or any other document, interest would otherwise be payable
      in excess of the maximum nonusurious amount, any such construction shall be
      subject to the provisions of this paragraph and such documents shall be


    
      
        
        

      

      
        41

        
          

        

      

      
        
        

      

    

    automatically
      reduced to the maximum nonusurious amount permitted under applicable law,
      without the necessity of execution of any amendment or new document. If any
      Lender shall ever receive anything of value which is characterized as interest
      on the Loans under applicable law and which would, apart from this provision,
      be
      in excess of the maximum lawful amount, an amount equal to the amount which
      would have been excessive interest shall, without penalty, be applied to the
      reduction of the principal amount owing on the Loans and not to the payment
      of
      interest, or refunded to the Borrower or the other payor thereof if and to
      the
      extent such amount which would have been excessive exceeds such unpaid principal
      amount of the Loans. The right to demand payment of the Loans or any other
      Indebtedness evidenced by any of the Credit Documents does not include the
      right
      to receive any interest which has not otherwise accrued on the date of such
      demand, and the Lenders do not intend to charge or receive any unearned interest
      in the event of such demand. All interest paid or agreed to be paid to the
      Lenders with respect to the Loans shall, to the extent permitted by applicable
      law, be amortized, prorated, allocated, and spread throughout the full stated
      term (including any renewal or extension) of the Loans so that the amount of
      interest on account of such Indebtedness does not exceed the maximum nonusurious
      amount permitted by applicable law.

    


    3.7 Pro
      Rata
      Treatment.

    


    Except
      to
      the extent otherwise provided herein:

    


    (a) Loans.
      Each
      Loan
      borrowing, each payment or prepayment of principal of any Loan or reimbursement
      obligations arising from drawings under Letters of Credit, each payment of
      interest on any Loan or reimbursement obligations arising from drawings under
      Letters of Credit, each payment of fees (other than the administrative fees
      retained by the Agent for its own account), each reduction of the Revolving
      Committed Amount, and each conversion or continuation of any Loan shall be
      allocated pro rata among the relevant Lenders in accordance with the respective
      Commitment Percentages of such Lenders (or, if the Commitment Percentages of
      such Lenders have expired or been terminated, in accordance with the respective
      principal amounts of their outstanding Loans and participation interests in
      LOC
      Obligations and Swingline Loans of such Lenders).

    


    (b) Advances.

    


    (i) The
      obligations of the Lenders hereunder to make Loans and to fund participations
      in
      Letters of Credit and Swingline Loans are several and not joint. The failure
      of
      any Lender to make any Loan or to fund any such participation on any date
      required hereunder shall not relieve any other Lender of its corresponding
      obligation to do so on such date, and no Lender shall be responsible for the
      failure of any other Lender to so make its Loan or purchase its
      participation.

    


    (ii) Unless
      the Borrower or any Lender has notified the Agent, prior to the date any payment
      is required to be made by it to the Agent hereunder, that the Borrower or such
      Lender, as the case may be, will not make such payment, the Agent may assume
      that the Borrower or such Lender, as the case may be, has timely made such
      payment and may (but shall not be so required to), in reliance thereon, make
      available a corresponding amount to the Person entitled thereto. If and to
      the
      extent that such payment was not in fact made to the Agent in immediately
      available funds, then:

    


    (A) if
      the
      Borrower failed to make such payment, each Lender shall forthwith on demand
      repay to the Agent the portion of such assumed payment that was made available
      to such Lender in immediately available funds, together with interest thereon
      in
      respect of each day from and including the date such amount was made available
      by the 

    
      
        
        

      

      
        42

        
          

        

      

      
        
        

      

    

    Agent
      to
      such Lender to the date such amount is repaid to the Agent in immediately
      available funds at the Federal Funds Rate from time to time in effect;
      and

    


    (B) if
      any
      Lender failed to make such payment, such Lender shall forthwith on demand pay
      to
      the Agent the amount thereof in immediately available funds, together with
      interest thereon for the period from the date such amount was made available
      by
      the Agent to the Borrower to the date such amount is recovered by the Agent
      (the
      "Compensation
      Period")
      at a
      rate per annum equal to the Federal Funds Rate from time to time in effect.
      If
      such Lender pays such amount to the Agent, then such amount shall constitute
      such Lender's Loan included in the applicable borrowing. If such Lender does
      not
      pay such amount forthwith upon the Agent's demand therefor, the Agent may make
      a
      demand therefor upon the Borrower, and the Borrower shall pay such amount to
      the
      Agent, together with interest thereon for the Compensation Period at a rate
      per
      annum equal to the rate of interest applicable to the applicable borrowing.
      Nothing herein shall be deemed to relieve any Lender from its obligation to
      fulfill its Commitment or to prejudice any rights which the Agent or the
      Borrower may have against any Lender as a result of any default by such Lender
      hereunder.

    


    A
      notice
      of the Agent to any Lender or the Borrower with respect to any amount owing
      under this subsection (b)(ii) shall be conclusive, absent manifest
      error.

    


    (iii) If
      any
      Lender makes available to the Agent funds for any Loan to be made by such Lender
      as provided in this Credit Agreement, and such funds are not made available
      to
      the Borrower by the Agent because the conditions to the applicable Extension
      of
      Credit set forth in Section 5.2 are not satisfied or waived in accordance with
      the terms hereof, the Agent shall return such funds (in like funds as received
      from such Lender) to such Lender, without interest.

    


    3.8 Allocation
      of Payments After Acceleration. 

    


    Notwithstanding
      any other provisions of this Credit Agreement, after the acceleration of the
      Credit Party Obligations pursuant to Section 9.2, all amounts collected or
      received by an Agent or any Lender on account of amounts outstanding under
      any
      of the Credit Documents or in respect of the Collateral shall be paid over
      or
      delivered as follows:

    


    FIRST,
      to
      the payment of all reasonable out-of-pocket costs and expenses (including
      without limitation reasonable attorneys' fees) of the Agent in connection with
      enforcing the rights of the Lenders under the Credit Documents and any
      protective advances made by the Agent with respect to the Collateral under
      or
      pursuant to the terms of the Collateral Documents;

    


    SECOND,
      to payment of any fees owed to an Agent in its capacity as Agent; 

    


    THIRD,
      to
      the payment of all reasonable out-of-pocket costs and expenses, (including,
      without limitation, reasonable attorneys' fees) of each of the Lenders in
      connection with enforcing its rights under the Credit Documents;

    


    FOURTH,
      to the payment of all accrued fees and interest payable to the Lenders
      hereunder;

    


    FIFTH,
      to
      the payment of the outstanding principal amount of the Loans (including the
      payment or cash collateralization of the outstanding LOC Obligations), and
      to
      any amounts owing 

    
      
        
        

      

      
        43

        
          

        

      

      
        
        

      

    

    under
      Hedging Agreements or under Treasury Management Agreements between any Credit
      Party and any Lender, or any Affiliate of a Lender, pro rata, as set forth
      below;

    


    SIXTH,
      to
      all other obligations which shall have become due and payable under the Credit
      Documents and not repaid pursuant to clauses "FIRST" through "FIFTH" above;
      and

    


    SEVENTH,
      to the payment of the surplus, if any, to whomever may be lawfully entitled
      to
      receive such surplus.

    


    In
      carrying out the foregoing, (a) amounts received shall be applied in the
      numerical order provided until exhausted prior to application to the next
      succeeding category; (b) each of the Lenders shall receive an amount equal
      to
      its pro rata share (based on the proportion that the then outstanding Loans
      and
      obligations under Hedging Agreements and Treasury Management Agreements held
      by
      such Lender bears to the aggregate then outstanding Loans and obligations under
      Hedging Agreements and Treasury Management Agreements) of amounts available
      to
      be applied pursuant to clauses "THIRD", "FOURTH," "FIFTH," and "SIXTH"
      above;
      and
      (c)
      to the
      extent that any amounts available for distribution pursuant to clause "FIFTH"
      above are attributable to the issued but undrawn amount of outstanding Letters
      of Credit, such amounts shall be held by the Agent as Cash Collateral and
      applied (A) first, to reimburse the Issuing Lender for any drawings under such
      Letters of Credit and (B) then, following the expiration of all Letters of
      Credit, to all other obligations of the types described in clauses "FIFTH"
      and
      "SIXTH" above in the manner provided in this Section 3.8.

    


    3.9 Sharing
      of Payments.

    


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

    
      
        
        

      

      
        44

        
          

        

      

      
        
        

      

    

    to
      which
      this Section 3.9 applies, such Lender shall, to the extent practicable, exercise
      its rights in respect of such secured claim in a manner consistent with the
      rights of the Lenders under this Section 3.9 to share in the benefits of any
      recovery on such secured claim. 

    


    3.10 Capital
      Adequacy.

    


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

    


    3.11 Inability
      To Determine Interest Rate.

    


    If
      prior
      to the first day of any Interest Period, the Agent shall have determined (which
      determination shall be conclusive and binding upon the Borrower) that, by reason
      of circumstances affecting the relevant market, adequate and reasonable means
      do
      not exist for ascertaining the Eurodollar Rate for such Interest Period, the
      Agent shall promptly give telecopy or telephonic notice thereof to the Borrower
      and the Lenders. If such notice is given (a) any Eurodollar Loans requested
      to
      be made on the first day of such Interest Period shall be made as Base Rate
      Loans, (b) any Loans that were to have been converted on the first day of such
      Interest Period to or continued as Eurodollar Loans shall be converted to or
      continued as Base Rate Loans and (c) any outstanding Eurodollar Loans shall
      be
      converted, on the first day of such Interest Period, to Base Rate Loans. Until
      such notice has been withdrawn by the Agent, no further Eurodollar Loans shall
      be made or continued as such, nor shall the Borrower have the right to convert
      Base Rate Loans to Eurodollar Loans.

    


    3.12 Illegality.

    


    Notwithstanding
      any other provision herein, if the adoption of or any change in any Requirement
      of Law or in the interpretation or application thereof occurring after the
      Closing Date shall make it unlawful for any Lender to make or maintain
      Eurodollar Loans as contemplated by this Credit Agreement, (a) such Lender
      shall
      promptly give written notice of such circumstances to the Borrower and the
      Agent
      (which notice shall be withdrawn whenever such circumstances no longer exist),
      (b) the commitment of such Lender hereunder to make Eurodollar Loans, continue
      Eurodollar Loans as such and convert a Base Rate Loan to Eurodollar Loans shall
      forthwith be canceled and, until such time as it shall no longer be unlawful
      for
      such Lender to make or maintain Eurodollar Loans, such Lender shall then have
      a
      commitment only to make a Base Rate Loan when a Eurodollar Loan is requested
      and
      (c) such Lender's Loans then outstanding as Eurodollar Loans, if any, shall
      be
      converted automatically to Base Rate Loans on the respective last days or the
      then current Interest Periods with respect to such Loans or within such earlier
      period as required by law. If any such conversion of a Eurodollar Loan occurs
      on
      a day which is not the last day of the then current Interest Period with respect
      thereto, the Borrower shall pay to such Lender such amounts, if any, as may
      be
      required pursuant to Section 3.15.


    
      
        
        

      

      
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    3.13 Requirements
      of Law.

    


    If
      the
      adoption of or any change in any Requirement of Law or in the interpretation
      or
      application thereof applicable to any Lender, or compliance by any Lender with
      any request or directive (whether or not having the force of law) from any
      central bank or other Governmental Authority, in each case made subsequent
      to
      the Closing Date (or, if later, the date on which such Lender becomes a
      Lender):

    


    (a) shall
      subject such Lender to any tax of any kind whatsoever with respect to any
      Eurodollar Loans made by it or its obligation to make Eurodollar Loans, or
      change the basis of taxation of payments to such Lender in respect thereof
      (except for Non-Excluded Taxes covered by Section 3.14 (including Non-Excluded
      Taxes imposed solely by reason of any failure of such Lender to comply with
      its
      obligations under Section 3.14(b)) and changes in taxes measured by or imposed
      upon the overall net income, or franchise tax (imposed in lieu of such net
      income tax), of such Lender or its applicable lending office, branch, or any
      affiliate thereof);

    


    (b) shall
      impose, modify or hold applicable any reserve, special deposit, compulsory
      loan
      or similar requirement against assets held by, deposits or other liabilities
      in
      or for the account of, advances, loans or other extensions of credit by, or
      any
      other acquisition of funds by, any office of such Lender which is not otherwise
      included in the determination of the Eurodollar Rate hereunder; or

    


    (c) shall
      impose on such Lender any other condition (excluding any tax of any kind
      whatsoever); 

    


    and
      the
      result of any of the foregoing is to increase the cost to such Lender, by an
      amount which such Lender reasonably deems to be material, of making, converting
      into, continuing or maintaining Eurodollar Loans or to reduce any amount
      receivable hereunder in respect thereof, then, in any such case, upon notice
      to
      the Borrower from such Lender, through the Agent, in accordance herewith, the
      Borrower shall be obligated to promptly pay such Lender, upon its demand, any
      additional amounts necessary to compensate such Lender for such increased cost
      or reduced amount receivable, provided
      that, in
      any such case, the Borrower may elect to convert the Eurodollar Loans made
      by
      such Lender hereunder to Base Rate Loans by giving the Agent at least one
      Business Day's notice of such election, in which case the Borrower shall
      promptly pay to such Lender, upon demand, without duplication, such amounts,
      if
      any, as may be required pursuant to Section 3.15. If any Lender becomes entitled
      to claim any additional amounts pursuant to this Section 3.13, it shall provide
      prompt notice thereof to the Borrower, through the Agent, certifying (x) that
      one of the events described in this Section 3.13 has occurred and describing
      in
      reasonable detail the nature of such event, (y) as to the increased cost or
      reduced amount resulting from such event and (z) as to the additional amount
      demanded by such Lender and a reasonably detailed explanation of the calculation
      thereof. Such a certificate as to any additional amounts payable pursuant to
      this Section 3.13 submitted by such Lender, through the Agent, to the Borrower
      shall be conclusive and binding on the parties hereto in the absence of manifest
      error. This covenant shall survive the termination of this Credit Agreement
      and
      the payment of the Loans and all other amounts payable hereunder.

    


    3.14 Taxes.

    


    (a) Except
      as
      provided below in this Section 3.14, all payments made by the Borrower under
      this Credit Agreement and any Notes shall be made free and clear of, and without
      deduction or withholding for or on account of, any present or future income,
      stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
      withholdings, now or hereafter imposed, levied, collected, withheld or assessed
      by any court, or governmental body, agency or other official, excluding taxes
      measured by or 

    
      
        
        

      

      
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    imposed
      upon the overall net income of any Lender or its applicable lending office,
      or
      any branch or affiliate thereof, and all franchise taxes, branch taxes, taxes
      on
      doing business or taxes on the overall capital or net worth of any Lender or
      its
      applicable lending office, or any branch or affiliate thereof, in each case
      imposed in lieu of net income taxes: (i) by the jurisdiction under the laws
      of
      which such Lender, applicable lending office, branch or affiliate is organized
      or is located, or in which its principal executive office is located, or any
      nation within which such jurisdiction is located or any political subdivision
      thereof; or (ii) by reason of any connection between the jurisdiction imposing
      such tax and such Lender, applicable lending office, branch or affiliate other
      than a connection arising solely from such Lender having executed, delivered
      or
      performed its obligations, or received payment under or enforced, this Credit
      Agreement or any Notes. If any such non-excluded taxes, levies, imposts, duties,
      charges, fees, deductions or withholdings ("Non-Excluded
      Taxes")
      are
      required to be withheld from any amounts payable to the Agent or any Lender
      hereunder or under any Notes, (A) the amounts so payable to the Agent or such
      Lender shall be increased to the extent necessary to yield to an Agent or such
      Lender (after payment of all Non-Excluded Taxes) interest or any such other
      amounts payable hereunder at the rates or in the amounts specified in this
      Credit Agreement and any Notes, provided, however, that the Borrower shall
      be
      entitled to deduct and withhold any Non-Excluded Taxes and shall not be required
      to increase any such amounts payable to any Lender that is not organized under
      the laws of the United States of America or a state thereof if such Lender
      fails
      to comply with the requirements of paragraph (b) of this Section 3.14 whenever
      any Non-Excluded Taxes are payable by the Borrower, and (B) as promptly as
      possible thereafter the Borrower shall send to the Agent for its own account
      or
      for the account of such Lender, as the case may be, a certified copy of an
      original official receipt received by the Borrower showing payment thereof.
      If
      the Borrower fails to pay any Non-Excluded Taxes when due to the appropriate
      taxing authority or fails to remit to the Agent the required receipts or other
      required documentary evidence, the Borrower shall indemnify the Agent and the
      Lenders for any incremental taxes, interest or penalties that may become payable
      by the Agent or any Lender as a result of any such failure. The agreements
      in
      this subsection shall survive the termination of this Credit Agreement and
      the
      payment of the Loans, the LOC Obligations and all other amounts payable
      hereunder.

    


    (b) Each
      Lender that is not a "United States Person" within the meaning of Section
      7701(a)(30) of the Code shall:

    


    (i) (A) on
      or
      before the date of any payment by the Borrower under this Credit Agreement
      or
      Notes to such Lender, deliver to the Borrower and the Agent (x) two duly
      completed copies of United States Internal Revenue Service Form W-8BEN or
      W-8ECI, or successor applicable form, as the case may be, certifying that it
      is
      entitled to receive payments under this Credit Agreement and any Notes without
      deduction or withholding of any United States federal income taxes and (y)
      an
      Internal Revenue Service Form W-8 or W-9, or successor applicable form, as
      the
      case may be, certifying that it is entitled to an exemption from United States
      backup withholding tax;

    


    (B) deliver
      to the Borrower and the Agent two further copies of any such form or
      certification on or before the date that any such form or certification expires
      or becomes obsolete and after the occurrence of any event requiring a change
      in
      the most recent form previously delivered by it to the Borrower;
      and

     

    (C) obtain
      such extensions of time for filing and complete such forms or certifications
      as
      may reasonably be requested by the Borrower or the Agent; or

    


    (ii) (A)
      represent to the Borrower (for the benefit of the Borrower and the Agent) that
      it is not a "United States Person" within the meaning of Section 7701(a)(30)
      of
      the Code, (B) 

    
      
        
        

      

      
        47

        
          

        

      

      
        
        

      

    

    agree
      to
      furnish to the Borrower, on or before the date of any payment by the Borrower,
      with a copy to the Agent, two accurate and complete original signed copies
      of
      Internal Revenue Service Form W-8, or successor applicable form certifying
      to
      such Lender's legal entitlement at the date of such certificate to an exemption
      from U.S. withholding tax under the provisions of Section 881(c) of the Code
      with respect to payments to be made under this Credit Agreement and any Notes
      (and to deliver to the Borrower and the Agent two further copies of such form
      on
      or before the date it expires or becomes obsolete and after the occurrence
      of
      any event requiring a change in the most recently provided form and, if
      necessary, obtain any extensions of time reasonably requested by the Borrower
      or
      the Agent for filing and completing such forms), and (C) agree, to the extent
      legally entitled to do so, upon reasonable request by the Borrower, to provide
      to the Borrower (for the benefit of the Borrower and the Agent) such other
      forms
      as may be reasonably required in order to establish the legal entitlement of
      such Lender to an exemption from withholding with respect to payments under
      this
      Credit Agreement and any Notes.

    


    Notwithstanding
      the above, if any change in treaty, law or regulation has occurred after the
      date such Person becomes a Lender hereunder which renders all such forms
      inapplicable or which would prevent such Lender from duly completing and
      delivering any such form with respect to it and such Lender so advises the
      Borrower and the Agent then such Lender shall be exempt from such
      requirements.

    


    3.15 Indemnity.

    


    Upon
      the
      written demand of any Lender, the Borrower shall promptly compensate such Lender
      for and hold such Lender harmless from any loss, cost or expense incurred by
      it
      as a result of:

    


    (a) any
      continuation, conversion, payment or prepayment of any Eurodollar Loan on a
      day
      other than the last day of the Interest Period for such Eurodollar Loan (whether
      voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
      

    


    (b) any
      failure by the Borrower (for a reason other than the failure of such Lender
      to
      make a Eurodollar Loan) to prepay, borrow, continue or convert any Eurodollar
      Loan on the date or in the amount previously requested by the Borrower;
      or

    


    (c) any
      assignment of a Eurodollar Loan on a day other than the last day of the Interest
      Period therefor as a result of:

    


    (i) a
      request
      by the Borrower pursuant to Section 3.16; or

    


    (ii) an
      assignment by Bank of America pursuant to Section 11.3(b) as part of the primary
      syndication of the Term Loan Commitments and Term Loan during the 180-day period
      immediately following the Fifth Amendment Effective Date, provided that Bank
      of
      America agrees to use reasonable efforts to reduce the breakage costs payable
      by
      the Borrower in connection therewith (including, without limitation, to the
      extent reasonably practical, closing such assignments at the end of Interest
      Periods of outstanding Eurodollar Loans).

    


    The
      amount each such Lender shall be compensated pursuant to this Section 3.15
      shall
      include, without limitation, (i) any loss incurred by such Lender in connection
      with the re-employment of funds prepaid, repaid, not borrowed or paid, as the
      case may be and (ii) any reasonable out-of-pocket expenses (including reasonable
      attorneys' fees) incurred and reasonably attributable thereto. 


    
      
        
        

      

      
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    For
      purposes of calculating amounts payable by the Borrower to the Lenders under
      this Section 3.15, each Lender may deem that it funded each Eurodollar Loan
      made
      by it at the Eurodollar Rate for such Eurodollar Loan by a matching deposit
      or
      other borrowing in the applicable offshore Dollar interbank market for a
      comparable amount and for a comparable period, whether or not such Eurodollar
      Loan was in fact so funded.

    


    3.16 Replacement
      of Lenders.

    


    If
      (a)
      any Lender delivers a notice to the Borrower pursuant to Sections 3.10, 3.13
      or
      3.14 or (b) a Lender (a "Non-Consenting
      Lender")
      does
      not consent to a proposed change, waiver, discharge or termination with respect
      to any Credit Document that has been approved by the Required Lenders as
      provided in Section 11.6, then the Borrower shall have the right, if no Default
      or Event of Default then exists, to either (i) replace such Lender (the
      "Replaced
      Lender")
      with
      one or more additional banks or financial institutions (collectively, the
      "Replacement
      Lender"),
      provided
      that (A)
      at the time of any replacement pursuant to this Section 3.16, the Replacement
      Lender shall enter into one or more assignment agreements substantially in
      the
      form of Exhibit
      11.3
      pursuant
      to, and in accordance with the terms of, Section 11.3(b) (and with all fees
      payable pursuant to said Section 11.3(b) to be paid by the Replacement Lender)
      pursuant to which the Replacement Lender shall acquire all of the rights and
      obligations of the Replaced Lender hereunder and, in connection therewith,
      shall
      pay to the Replaced Lender in respect thereof an amount equal to the sum of
      (1)
      the principal of, and all accrued interest on, all outstanding Loans of the
      Replaced Lender, and (2) all accrued, but theretofore unpaid, fees owing to
      the
      Replaced Lender pursuant to Section 3.4, and (B) all obligations of the Borrower
      owing to the Replaced Lender (including all obligations, if any, owing pursuant
      to Section 3.10, 3.13 or 3.14, but excluding those obligations specifically
      described in clause (A) above in respect of which the assignment purchase price
      has been, or is concurrently being paid) shall be paid in full to such Replaced
      Lender concurrently with such replacement and (C) in the case of any such
      assignment resulting from a Non-Consenting Lender's failure to consent to a
      proposed change, waiver, discharge or termination with respect to any Credit
      Document, the applicable replacement bank, financial institution or Fund
      consents to the proposed change, waiver, discharge or termination; provided
      that the
      failure by such Non-Consenting Lender to execute and deliver an Assignment
      and
      Assumption shall not impair the validity of the removal of such Non-Consenting
      Lender and the mandatory assignment of such Non-Consenting Lender's Commitments
      and outstanding Loans and participations in LOC Obligations and Swingline Loans
      pursuant to this Section 3.16 shall nevertheless be effective without the
      execution by such Non-Consenting Lender of an Assignment and Assumption or
      (ii)
      if a Replacement Lender is not located within 60 days of such notice, terminate
      the Commitments and repay the Loans owing to such Replaced Lender.

     

    


    


    SECTION
      4

    


    GUARANTY

    


    4.1 Guaranty
      of Payment.

    


    Subject
      to Section 4.7 below, each of the Guarantors hereby, jointly and severally,
      unconditionally guarantees to each Lender, each Affiliate of Lender that enters
      into a Hedging Agreement or a Treasury Management Agreement and the Agent the
      prompt payment of the Credit Party Obligations in full when due (whether at
      stated maturity, as a mandatory prepayment, by acceleration or otherwise).
      The
      Guarantors additionally, jointly and severally, unconditionally guarantee to
      each Lender the timely 

    
      
        
        

      

      
        49

        
          

        

      

      
        
        

      

    

    performance
      of all other obligations under the Credit Documents, Hedging Agreements and
      Treasury Management Agreement. This Guaranty is a guaranty of payment and not
      of
      collection and is a continuing guaranty and shall apply to all Credit Party
      Obligations whenever arising.

    


    4.2 Obligations
      Unconditional.

    


    The
      obligations of the Guarantors hereunder are absolute and unconditional,
      irrespective of the value, genuineness, validity, regularity or enforceability
      of any of the Credit Documents, the Hedging Agreements or the Treasury
      Management Agreements, or any other agreement or instrument referred to therein,
      to the fullest extent permitted by applicable law, irrespective of any other
      circumstance whatsoever which might otherwise constitute a legal or equitable
      discharge or defense of a surety or guarantor. Each Guarantor agrees that this
      Guaranty may be enforced by the Lenders without the necessity at any time of
      resorting to or exhausting any other security or collateral and without the
      necessity at any time of having recourse to the Notes or any other of the Credit
      Documents or any collateral, if any, hereafter securing the Credit Party
      Obligations or otherwise and each Guarantor hereby waives the right to require
      the Lenders to proceed against the Borrower or any other Person (including
      a
      co-guarantor) or to require the Lenders to pursue any other remedy or enforce
      any other right. Each Guarantor further agrees that it shall have no right
      of
      subrogation, indemnity, reimbursement or contribution against the Borrower
      or
      any other Guarantor of the Credit Party Obligations for amounts paid under
      this
      Guaranty until such time as the Lenders (and any Affiliates of Lenders entering
      into Hedging Agreements or Treasury Management Agreements) have been paid in
      full, all Commitments under the Credit Agreement have been terminated and no
      Person or Governmental Authority shall have any right to request any return
      or
      reimbursement of funds from the Lenders in connection with monies received
      under
      the Credit Documents. Each Guarantor further agrees that nothing contained
      herein shall prevent the Lenders from suing on the Notes or any of the other
      Credit Documents, any of the Hedging Agreements or any of the Treasury
      Management Agreements or foreclosing its security interest in or Lien on any
      collateral, if any, securing the Credit Party Obligations or from exercising
      any
      other rights available to it under this Credit Agreement, the Notes, any other
      of the Credit Documents, or any other instrument of security, if any, and the
      exercise of any of the aforesaid rights and the completion of any foreclosure
      proceedings shall not constitute a discharge of any of any Guarantor's
      obligations hereunder; it being the purpose and intent of each Guarantor that
      its Guarantor's obligations hereunder shall be absolute, independent and
      unconditional under any and all circumstances. Neither any Guarantor's
      obligations under this Guaranty nor any remedy for the enforcement thereof
      shall
      be impaired, modified, changed or released in any manner whatsoever by an
      impairment, modification, change, release or limitation of the liability of
      the
      Borrower or by reason of the bankruptcy or insolvency of the Borrower. Each
      Guarantor waives any and all notice of the creation, renewal, extension or
      accrual of any of the Credit Party Obligations and notice of or proof of
      reliance by the Agent or any Lender upon this Guarantee or acceptance of this
      Guarantee. The Credit Party Obligations, and any of them, shall conclusively
      be
      deemed to have been created, contracted or incurred, or renewed, extended,
      amended or waived, in reliance upon this Guarantee. All dealings between the
      Borrower and any of the Guarantors, on the one hand, and the Agent and the
      Lenders, on the other hand, likewise shall be conclusively presumed to have
      been
      had or consummated in reliance upon this Guarantee.

    


    4.3 Modifications.

    


    Each
      Guarantor agrees that (a) all or any part of the security now or hereafter
      held
      for the Credit Party Obligations, if any, may be exchanged, compromised or
      surrendered from time to time; (b) the Lenders shall not have any obligation
      to
      protect, perfect, secure or insure any such security interests, liens or
      encumbrances now or hereafter held, if any, for the Credit Party Obligations
      or
      the properties subject thereto; (c) the time or place of payment of the Credit
      Party Obligations may be changed or extended, in 

    
      
        
        

      

      
        50

        
          

        

      

      
        
        

      

    

    whole
      or
      in part, to a time certain or otherwise, and may be renewed or accelerated,
      in
      whole or in part; (d) the Borrower and any other party liable for payment under
      the Credit Documents may be granted indulgences generally; (e) any of the
      provisions of the Notes or any of the other Credit Documents may be modified,
      amended or waived; (f) any party (including any co-guarantor) liable for the
      payment thereof may be granted indulgences or be released; and (g) any deposit
      balance for the credit of the Borrower or any other party liable for the payment
      of the Credit Party Obligations or liable upon any security therefor may be
      released, in whole or in part, at, before or after the stated, extended or
      accelerated maturity of the Credit Party Obligations, all without notice to
      or
      further assent by the Guarantor, which shall remain bound thereon,
      notwithstanding any such exchange, compromise, surrender, extension, renewal,
      acceleration, modification, indulgence or release. 

    


    4.4 Waiver
      of
      Rights.

    


    Each
      Guarantor expressly waives: (a) notice of acceptance of this Guaranty by the
      Lenders and of all extensions of credit to the Borrower by the Lenders; (b)
      presentment and demand for payment or performance of any of the Credit Party
      Obligations; (c) protest and notice of dishonor or of default (except as
      specifically required in the Credit Agreement) with respect to the Credit Party
      Obligations or with respect to any security therefor; (d) notice of the Lenders
      obtaining, amending, substituting for, releasing, waiving or modifying any
      security interest, lien or encumbrance, if any, hereafter securing the Credit
      Party Obligations, or the Lenders' subordinating, compromising, discharging
      or
      releasing such security interests, liens or encumbrances, if any; (e) all other
      notices to which the Guarantor might otherwise be entitled; and (f) demand
      for
      payment under this Guaranty.

    


    4.5 Reinstatement.

    


    The
      obligations of the Guarantors under this Section 4 shall be automatically
      reinstated if and to the extent that for any reason any payment by or on behalf
      of any Person in respect of the Credit Party Obligations is rescinded or must
      be
      otherwise restored by any holder of any of the Credit Party Obligations, whether
      as a result of any proceedings in bankruptcy or reorganization or otherwise,
      and
      each Guarantor agrees that it will indemnify the Agent and each Lender on demand
      for all reasonable costs and expenses (including, without limitation, reasonable
      fees of counsel) incurred by an Agent or such Lender in connection with such
      rescission or restoration, including any such costs and expenses incurred in
      defending against any claim alleging that such payment constituted a preference,
      fraudulent transfer or similar payment under any bankruptcy, insolvency or
      similar law.

    


    4.6 Remedies.

    


    The
      Guarantors agree that, as between the Guarantors, on the one hand, and the
      Agent
      and the Lenders, on the other hand, the Credit Party Obligations may be declared
      to be forthwith due and payable as provided in Section 9 (and shall be deemed
      to
      have become automatically due and payable in the circumstances provided in
      Section 9) notwithstanding any stay, injunction or other prohibition preventing
      such declaration (or preventing such Credit Party Obligations from becoming
      automatically due and payable) as against any other Person and that, in the
      event of such declaration (or such Credit Party Obligations being deemed to
      have
      become automatically due and payable), such Credit Party Obligations (whether
      or
      not due and payable by any other Person) shall forthwith become due and payable
      by the Guarantors. The Guarantors acknowledge and agree that their obligations
      hereunder are secured in accordance with the terms of the Security Agreement
      and
      the other Collateral Documents and that the Lenders may exercise their remedies
      thereunder in accordance with their terms.


    
      
        
        

      

      
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    4.7 Limitation
      of Guaranty.

    


    Notwithstanding
      any provision to the contrary contained herein or in any other of the Credit
      Documents, Hedging Agreements or Treasury Management Agreements, the obligations
      of each Guarantor hereunder shall be limited to an aggregate amount equal to
      the
      largest amount that would not render its obligations hereunder subject to
      avoidance under Section 548 of the Bankruptcy Code or any comparable provisions
      of any applicable state law. 

    


    4.8 Rights
      of
      Contribution.

    


    The
      Guarantors agree among themselves that, in connection with payments made
      hereunder, each Guarantor shall have contribution rights against the other
      Guarantors as permitted under applicable law. Such contribution rights shall
      be
      subordinate and subject in right of payment to the obligations of such
      Guarantors under the Credit Documents and no Guarantor shall exercise such
      rights of contribution until all Credit Party Obligations have been paid in
      full
      and the Commitments have terminated.

    


    


    SECTION
      5

    


    CONDITIONS
      PRECEDENT

    


    5.1 Closing
      Conditions.

    


    The
      obligation of the Lenders to enter into this Credit Agreement and make the
      initial Extension of Credit is subject to satisfaction of the following
      conditions (in form and substance acceptable to the Lenders in their sole
      discretion):

    


    (a) Executed
      Credit Documents.
      Receipt
      by the Agent of duly executed copies of: (i) this Credit Agreement; (ii) the
      Notes; (iii) the Collateral Documents and (iv) all other Credit
      Documents.

    


    (b) Corporate
      Documents.
      Receipt
      by the Agent of the following:

    


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

    


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

    


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

    


    (iv) Good
      Standing.
      Copies
      of certificates of good standing, existence or its equivalent with respect
      to
      each Credit Party certified as of a recent date by the appropriate 

    
      
        
        

      

      
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    Governmental
      Authorities of the state or other jurisdiction of incorporation and each other
      jurisdiction in which the failure to so qualify and be in good standing would
      have a Material Adverse Effect on the business or operations of a Credit Party
      in such jurisdiction.

    


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

    


    (c) Financial
      Statements.
      Receipt
      by the Agent and the Lenders of the consolidated and consolidating financial
      statements of the Borrower and its Subsidiaries for fiscal year ending November
      30, 2003, including balance sheets and income and cash flow statements, audited
      by nationally recognized independent public accountants and containing an
      unqualified opinion of such firm that such statements fairly present in all
      material respects the consolidated financial condition of the Borrower and
      its
      Subsidiaries and have been prepared in conformity with GAAP and interim
      unaudited quarterly financial statements of the Borrower and its Subsidiaries,
      prepared in conformity with GAAP, for the trailing twelve months of the Borrower
      and first projected year of the Borrower and working capital detail for the
      trailing twelve months of the Borrower and the first projected fiscal year
      of
      the Borrower.

    


    (d) Opinion
      of Counsel.
      Receipt
      by the Lenders of an opinion, or opinions (which shall cover, among other
      things, authority, legality, validity, binding effect, enforceability and
      attachment and perfection of liens), reasonably satisfactory to the Agent,
      addressed to the Agent and the Lenders and dated as of the Closing Date, from
      legal counsel to the Credit Parties.

    


    (e) Personal
      Property Collateral.
      The
      Agent shall have received, in form and substance satisfactory to the
      Agent:

    


    (i) searches
      of Uniform Commercial Code ("UCC") filings in the jurisdiction of the chief
      executive office of each Credit Party, the jurisdiction of organization of
      each
      Credit Party and each jurisdiction where any Collateral is located or where
      a
      filing would need to be made in order to perfect the Agent's security interest,
      for the benefit of the Lenders, in the Collateral, copies of the financing
      statements on file in such jurisdictions and evidence that no Liens exist other
      than Permitted Liens;

    


    (ii) UCC
      financing statements for each appropriate jurisdiction as is necessary, in
      the
      Agent's sole discretion, to perfect the Agent's security interest, for the
      benefit of the Lenders, in the Collateral;

    


    (iii) searches
      of ownership of intellectual property in the appropriate governmental offices
      and such United States or Canadian patent/trademark/copyright filings as
      requested by the Agent in order to perfect the Agent's security interest in
      the
      Collateral; 

    


    (iv) all
      stock
      certificates evidencing the stock pledged to the Agent pursuant to the Pledge
      Agreement, together with duly executed in blank undated stock powers attached
      thereto; and

    


    (v) all
      instruments and chattel paper in the possession of a Credit Party together
      with
      allonges or assignments as may be necessary or appropriate to perfect the
      Lenders' security interest in the Collateral.


    
      
        
        

      

      
        53

        
          

        

      

      
        
        

      

    

    (f) Evidence
      of Insurance.
      Receipt
      by the Agent of copies of insurance policies or certificates of insurance of
      the
      Borrower and its Subsidiaries evidencing liability and casualty insurance
      meeting the requirements set forth in the Credit Documents, including, but
      not
      limited to, naming the Agent as sole loss payee on behalf of the
      Lenders.

    


    (g) Material
      Adverse Effect.
      With
      respect to the Borrower and its Subsidiaries, there shall not have occurred
      a
      change since November 30, 2003 that has had or could reasonably be expected
      to
      have a Material Adverse Effect (including matters related to litigation, tax,
      accounting, labor, insurance and pension liabilities).

    


    (h) Litigation.
      There
      shall not exist any pending or threatened action, suit, investigation or
      proceeding which if adversely determined against the Borrower or any of its
      Subsidiaries would have or would reasonably be expected to have a Material
      Adverse Effect. 

    


    (i) Closing
      Date Financings.
      The
      Agent shall be satisfied that (i) the Borrower shall have received (i)
      gross proceeds of at least $75 million from the issuance by the Borrower of
      floating rate notes under the Floating Rate Indenture on terms that are
      satisfactory to the Agent and (ii) gross proceeds of at least
      $125 million from the issuance by the Borrower of subordinated notes under
      the Subordinated Indenture on terms that are satisfactory to the Agent. The
      Agent shall have received a copy, certified by a Responsible Officer of the
      Borrower as true and complete, of each of the Floating Rate Indenture and the
      Subordinated Indenture as originally executed and delivered, together with
      all
      exhibits and schedules thereto. The Borrower shall have applied the proceeds
      of
      the notes issued under the Floating Rate Indenture and the Subordinated
      Indenture to pay approximately $180.7 million of Indebtedness evidenced by
      the
      Existing Indenture.

    


    (j) Officer's
      Certificate.
      The
      Agent shall have received a certificate executed by the chief financial officer
      of the Borrower as of the Closing Date stating that (A) the Borrower and each
      of
      the Borrower's Subsidiaries are in compliance with all existing financial
      obligations, (B) all governmental, shareholder and third party consents and
      approvals, if any, with respect to the Credit Documents and the transactions
      contemplated thereby have been obtained, (C) no action, suit, investigation
      or
      proceeding is pending or threatened in any court or before any arbitrator or
      governmental instrumentality that purports to effect the Borrower, any of the
      Borrower's Subsidiaries or any transaction contemplated by the Credit Documents,
      or could have or might be reasonably expected to have a Material Adverse Effect,
      and (D) immediately after giving effect to this Credit Agreement, the other
      Credit Documents and all the transactions contemplated herein or therein to
      occur on such date, (1) the Borrower and each of its Subsidiaries is Solvent,
      (2) no Default or Event of Default exists, (3) all representations and
      warranties contained herein and in the other Credit Documents are true and
      correct in all material respects, and (4) the Credit Parties are in compliance
      with each of the financial covenants set forth in Section 7.12.

    


    (k) Fees
      and Expenses.
      Payment
      by the Credit Parties of all fees and expenses owed by them to the Lenders
      and
      the Agent, including, without limitation, payment to the Agent of the fees
      set
      forth in the Fee Letter. 

    


    (l) First
      Priority Lien.
      Receipt
      by the Agent of evidence satisfactory in form and substance to the Agent, that
      the Agent, on behalf of the Lenders, holds a perfected, first priority lien,
      subject to no other Liens other than Permitted Liens, in the
      Collateral.

    


    (m) Other.
      Receipt
      by the Lenders of such other documents, instruments, agreements or information
      as reasonably requested by any Lender, including, but not limited to,
      information 

    
      
        
        

      

      
        54

        
          

        

      

      
        
        

      

    

    regarding
      litigation, tax, accounting, labor, insurance, pension liabilities (actual
      or
      contingent), real estate leases, material contracts, debt agreements, property
      ownership and contingent liabilities of the Borrower and its
      Subsidiaries.

    


    5.2 Conditions
      to All Extensions of Credit.

    


    In
      addition to the conditions precedent stated elsewhere herein, the Lenders shall
      not be obligated to make, continue or convert Loans (nor
      shall
      the Issuing Lender be obligated to issue any Letter of Credit) hereunder
unless:

    


    (a) Notice.
      The
      Borrower shall have delivered (i) in the case of any new Loan, a Notice of
      Borrowing, duly executed and completed, by the time specified in Section 2.1,
      (ii) in the case of any Letter of Credit, a Letter of Credit Application, duly
      executed and completed, by the time specified in Section 2.2, (iii) in the
      case
      of any new Swingline Loan, a Swingline Loan Notice, duly executed and completed,
      by the time specified in Section 2.3 and (iv) in the case of any continuation
      or
      conversion of a Loan, a duly executed and completed Notice of
      Continuation/Conversion by the time specified in Section 2.4;

    


    (b) Representations
      and Warranties.
      The
      representations and warranties made by the Credit Parties in any Credit Document
      are true and correct in all material respects at and as if made as of such
      date;

    


    (c) No
      Default.
      No
      Default or Event of Default shall exist or be continuing either prior to or
      after giving effect thereto; 

    


    (d) No
      Material Adverse Effect.
      There
      shall not have occurred any Material Adverse Effect; 

    


    (e) Availability.
      Immediately after giving effect to the making of such Loan (and the application
      of the proceeds thereof) or the issuance of such Letter of Credit, the sum
      of
      the Revolving Loans outstanding plus
      LOC
      Obligations outstanding plus
      the
      Swingline Loans outstanding shall not exceed the Revolving Commitment Amount;
      and

    


    (f) Compliance
      with Subordinated Indenture.
      The
      incurrence by the Borrower of the Indebtedness evidenced by such Loan or Letter
      of Credit is permitted by the Subordinated Indenture, including Section 4.09
      thereof, and constitutes "Senior Indebtedness" as defined therein.

    


    The
      delivery of each Notice of Borrowing and each Notice of Extension/Conversion
      shall constitute a representation and warranty by the Borrower of the
      correctness of the matters specified in subsections (b), (c), (d), (e) and
      (f)
      above.

    


    


    SECTION
      6

    


    REPRESENTATIONS
      AND WARRANTIES

    


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

    


    6.1 Financial
      Condition.

    


    The
      financial statements delivered to the Lenders pursuant to Section 5.1(c), (a)
      have been prepared in accordance with GAAP and (b) present fairly (on the basis
      disclosed in the footnotes to such 

    
      
        
        

      

      
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    financial
      statements) the consolidated and consolidating (as applicable) financial
      condition, results of operations and cash flows of the Credit Parties and their
      Subsidiaries as of such date and for such periods. Since November 30, 2005,
      there has been no sale, transfer or other disposition by the Borrower or any
      of
      its Subsidiaries of any material part of the business or property of the
      Borrower or any of its Subsidiaries, and no purchase or other acquisition (other
      than the JEWEL Acquisition) by any of them of any business or assets material
      in
      relation to the consolidated financial condition of the Borrower and its
      Subsidiaries, in each case, which, is not reflected in the foregoing financial
      statements or in the notes thereto.

    


    6.2 No
      Material Change.

    


    Since
      November 30, 2005, (a) there has been no development or event relating to or
      affecting Borrower or any of its Subsidiaries which has had or would be
      reasonably expected to have a Material Adverse Effect and (b) no dividends
      or
      other distributions have been declared, paid or made upon the Capital Stock
      in
      Borrower or any of its Subsidiaries nor, except as otherwise permitted under
      this Credit Agreement, has any of the Capital Stock in a Credit Party been
      redeemed, retired, purchased or otherwise acquired for value.

    


    6.3 Organization
      and Good Standing.

    


    The
      Borrower and each of its Subsidiaries (a) is duly organized, validly existing
      and in good standing under the laws of the State (or other jurisdiction) of
      its
      organization, (b) is duly qualified and in good standing authorized to do
      business in every jurisdiction where the failure to be so qualified would have
      a
      Material Adverse Effect and (c) has the requisite power and authority to own
      its
      properties and to carry on its business as now conducted and as proposed to
      be
      conducted.

    


    6.4 Due
      Authorization.

    


    Each
      Credit Party (a) has the requisite power and authority to execute, deliver
      and
      perform this Credit Agreement and the other Credit Documents to which it is
      a
      party and to incur the obligations herein and therein provided for and (b)
      is
      duly authorized to, and has been authorized by all necessary action, to execute,
      deliver and perform this Credit Agreement and the other Credit Documents to
      which it is a party.

    


    6.5 No
      Conflicts.

    


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


    
      
        
        

      

      
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    6.6 Consents.

    


    No
      consent, approval, authorization or order of, or filing, registration or
      qualification with, any court or Governmental Authority or third party in
      respect of a Credit Party is required in connection with the execution, delivery
      or performance of this Credit Agreement or any of the other Credit Documents
      by
      a Credit Party, or if required, such consent, approval and authorization has
      been obtained.

    


    6.7 Enforceable
      Obligations.

    


    This
      Credit Agreement and the other Credit Documents have been duly executed and
      delivered and constitute legal, valid and binding obligations of each Credit
      Party enforceable against such Credit Party in accordance with their respective
      terms, except as may be limited by bankruptcy or insolvency laws or similar
      laws
      affecting creditors' rights generally or by general equitable
      principles.

    


    6.8 No
      Default.

    


    Neither
      the Borrower nor any of its Subsidiaries is in default in any respect under
      any
      contract, lease, loan agreement, indenture, mortgage, security agreement or
      other agreement or obligation to which it is a party or by which any of its
      properties is bound which default would have or would be reasonably expected
      to
      have a Material Adverse Effect. No Default or Event of Default has occurred
      or
      exists.

    


    6.9 Ownership.

    


    The
      Borrower and each of its Subsidiaries is the owner of and has good and
      marketable title to all of its assets and none of such assets are subject to
      any
      Lien other than Permitted Liens.

    


    6.10 Indebtedness.

    


    The
      Borrower and its Subsidiaries have no Indebtedness except (a) as disclosed
      in
      the financial statements referenced in Section 6.1, (b) as set forth on
Schedule
      6.10
      and (c)
      as otherwise permitted by this Credit Agreement.

    


    6.11 Litigation.

    


    There
      are
      no actions, suits or legal, equitable, arbitration or administrative
      proceedings, pending or, to the knowledge of any Credit Party, threatened
      against the Borrower or any of its Subsidiaries which, if adversely determined,
      would have or would be reasonably expected to have a Material Adverse Effect.
      

    


    6.12 Taxes.

    


    Each
      of
      the Borrower and its Subsidiaries has filed, or caused to be filed, all tax
      returns (federal, state, local and foreign) required to be filed and paid (a)
      all amounts of taxes shown thereon to be due (including interest and penalties)
      and (b) all other taxes, fees, assessments and other governmental charges
      (including mortgage recording taxes, documentary stamp taxes and intangibles
      taxes) owing by it, except for such taxes (i) which are not yet delinquent
      or
      (ii) that are being contested in good faith and by proper proceedings, and
      against which adequate reserves are being maintained in accordance with GAAP.
      No
      Credit Party is aware of any proposed tax assessments against it, any of its
      Subsidiaries or any other Credit Party.


    
      
        
        

      

      
        57

        
          

        

      

      
        
        

      

    

    6.13 Compliance
      with Law.

    


    Each
      of
      the Borrower and its Subsidiaries is in compliance with all Requirements of
      Law
      and all other laws, rules, regulations, orders and decrees (including without
      limitation Environmental Laws) applicable to it, or to its properties, unless
      such failure to comply would not have or would not be reasonably expected to
      have a Material Adverse Effect. No Requirement of Law would be reasonably
      expected to cause a Material Adverse Effect.

    


    6.14 ERISA.

    


    Except
      as
      would not result in a Material Adverse Effect: 

    


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

    


    (b) The
      actuarial present value of all "benefit liabilities" under each Single Employer
      Plan (determined within the meaning of Section 401(a)(2) of the Code, utilizing
      the actuarial assumptions used to fund such Plans), whether or not vested,
      did
      not, as of the last annual valuation date prior to the date on which this
      representation is made or deemed made, exceed the current value of the assets
      of
      such Plan allocable to such accrued liabilities. 

    


    (c) Neither
      the Borrower, nor any of its Subsidiaries nor any ERISA Affiliate has incurred,
      or, to the best knowledge of the Credit Parties, are reasonably expected to
      incur, any withdrawal liability under ERISA to any Multiemployer Plan or
      Multiple Employer Plan. Neither the Borrower, nor any of its Subsidiaries nor
      any ERISA Affiliate has received any notification that any Multiemployer Plan
      is
      in reorganization (within the meaning of Section 4241 of ERISA), is insolvent
      (within the meaning of Section 4245 of ERISA), or has been terminated (within
      the meaning of Title IV of ERISA), and no Multiemployer Plan is, to the best
      knowledge of the Credit Parties, reasonably expected to be in reorganization,
      insolvent, or terminated.

    


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

    


    (e) The
      present value (determined using actuarial and other assumptions which are
      reasonable with respect to the benefits provided and the employees
      participating) of the liability of the Borrower and its Subsidiaries and each
      ERISA Affiliate for post-retirement welfare benefits to be provided to their
      current and former employees under Plans which are welfare benefit plans (as
      defined in Section 3(1) of ERISA), net of all assets under all such Plans
      allocable to such benefits, are reflected on the Financial Statements in
      accordance with FAS 106.


    
      
        
        

      

      
        58

        
          

        

      

      
        
        

      

    

    (f) Each
      Plan
      which is a welfare plan (as defined in Section 3(1) of ERISA) to which Sections
      601-609 of ERISA and Section 4980B of the Code apply has been administered
      in
      compliance in all material respects with such sections.

    


    6.15 Subsidiaries.

    


    Set
      forth
      on Schedule
      6.15
      is a
      complete and accurate list of all Subsidiaries of each Credit Party. Information
      on Schedule
      6.15
      includes
      jurisdiction of organization, the number of shares of each class of Capital
      Stock outstanding, the number and percentage of outstanding shares of each
      class
      owned (directly or indirectly) by such Credit Party; and the number and effect,
      if exercised, of all outstanding options, warrants, rights of conversion or
      purchase and all other similar rights with respect thereto. The outstanding
      Capital Stock of all such Subsidiaries is validly issued, fully paid and
      non-assessable and is owned by each such Credit Party, directly or indirectly,
      free and clear of all Liens (other than those arising under or contemplated
      in
      connection with the Credit Documents). Other than as set forth in Schedule
      6.15,
      neither
      any Credit Party nor any Subsidiary thereof has outstanding any securities
      convertible into or exchangeable for its Capital Stock nor does any such Person
      have outstanding any rights to subscribe for or to purchase or any options
      for
      the purchase of, or any agreements providing for the issuance (contingent or
      otherwise) of, or any calls, commitments or claims of any character relating
      to
      its Capital Stock. Schedule
      6.15
      may be
      updated from time to time by the Borrower by giving written notice thereof
      to
      the Agent.

    


    6.16 Use
      of
      Proceeds; Margin Stock.

    


    The
      proceeds of the Loans hereunder will be used solely for the purposes specified
      in Section 7.10. None of the proceeds of the Loans will be used for the purpose
      of purchasing or carrying any "margin stock" as defined in Regulation U or
      Regulation X, or for the purpose of reducing or retiring any Indebtedness which
      was originally incurred to purchase or carry "margin stock" or any "margin
      security" or for any other purpose which might constitute this transaction
      a
      "purpose credit" within the meaning of Regulation U, Regulation X or Regulation
      T. None of the Credit Parties owns any "margin stock".

    


    6.17 Government
      Regulation.

    


    No
      Credit
      Party is subject to regulation under the Public Utility Holding Company Act
      of
      1935, the Federal Power Act, the Investment Company Act of 1940 or the
      Interstate Commerce Act, each as amended. In addition, no Credit Party is (a)
      an
      "investment company" registered or required to be registered under the
      Investment Company Act of 1940, as amended, or controlled by such a company,
      or
      (b) a "holding company," or a "Subsidiary company" of a "holding company,"
      or an
      "affiliate" of a "holding company" or of a "Subsidiary" or a "holding company,"
      within the meaning of the Public Utility Holding Company Act of 1935, as
      amended.

    


    6.18 Environmental
      Matters.

    


    (a) Except
      as
      set forth on Schedule 6.18.

    


    (i) each
      of
      the Real Properties and all operations at the Real Properties are in compliance
      with all applicable Environmental Laws, and there is no violation of any
      Environmental Law with respect to the Real Properties or the businesses operated
      by the Borrower or any of its Subsidiaries (the "Businesses"),
      and
      there are no conditions relating to the 

    
      
        
        

      

      
        59

        
          

        

      

      
        
        

      

    

    Businesses
      or Real Properties that could give rise to liability under any applicable
      Environmental Laws.

    


    (ii) (A)
      To
      the best of the Credit Parties' knowledge, there has been no release of
      Hazardous Materials on any of the Real Properties that constitutes a violation
      of Environmental Laws, and (B) all Hazardous Materials located on any of the
      Real Properties are stored in compliance with Environmental Laws.

    


    (iii) Neither
      the Borrower nor any of its Subsidiaries has received any written or oral notice
      of, or inquiry from any Governmental Authority regarding, any violation, alleged
      violation, non-compliance, liability or potential liability regarding Hazardous
      Materials or compliance with Environmental Laws with regard to any of the Real
      Properties or the Businesses, nor does the Borrower or any of its Subsidiaries
      have knowledge or reason to believe that any such notice is being
      threatened.

    


    (iv) Hazardous
      Materials have not been transported or disposed of from the Real Properties,
      or
      generated, treated, stored or disposed of at, on or under any of the Real
      Properties or any other location, in each case by, or on behalf or with the
      permission of, the Borrower or any of its Subsidiaries in a manner that would
      reasonably be expected to give rise to liability under any applicable
      Environmental Law.

    


    (v) No
      judicial proceeding or governmental or administrative action is pending or,
      to
      the knowledge of the Borrower or any of its Subsidiaries, threatened, under
      any
      Environmental Law to which the Borrower or any of its Subsidiaries is or will
      be
      named as a party, nor are there any consent decrees or other decrees, consent
      orders, administrative orders or other orders, or other administrative or
      judicial requirements outstanding under any Environmental Law with respect
      to
      the Borrower or any of its Subsidiaries, the Real Properties or the
      Businesses.

    


    (vi) There
      has
      been no release or threat of release of Hazardous Materials at or from the
      Real
      Properties or arising from or related to the operations (including, without
      limitation, disposal) of the Borrower or any of its Subsidiaries in connection
      with the Real Properties or otherwise in connection with the
      Businesses.

    


    (vii) Neither
      the Borrower nor any of its Subsidiaries has assumed any liability of any Person
      (other than another Credit Party) under any Environmental Law. 

    


    (b) The
      Borrower has adopted procedures that are designed to (i) ensure that each Credit
      Party and their Subsidiaries, any of their operations and each of the properties
      owned or leased by each Credit Party and their Subsidiaries remains in
      compliance with applicable Environmental Laws and (ii) minimize any liabilities
      or potential liabilities that each Credit Party and their Subsidiaries, any
      of
      their operations and each of the properties owned or leased by each Credit
      Party
      and their Subsidiaries may have under applicable Environmental
      Laws.

    


    6.19 Intellectual
      Property.

    


    The
      Borrower and each of its Subsidiaries owns, or has the legal right to use,
      all
      trademarks, tradenames, copyrights, technology, know-how and processes (the
      "Intellectual
      Property")
      necessary for each of them to conduct its business as currently conducted except
      for those the failure to own or have such legal right to use would not have
      or
      be reasonably expected to have a Material Adverse Effect. Set forth on
Schedule
      6.19
      is a
      list of all Intellectual Property owned by the Borrower and its Subsidiaries
      or


    
      
        
        

      

      
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    that
      the
      Borrower or one of its Subsidiaries has the right to use as of the Closing
      Date
      (which list shall identify the Person that owns or has the right to use each
      such item of Intellectual Property), in each case that is registered in the
      United States or Canada. Except as provided on Schedule
      6.19,
      no
      claim has been asserted and is pending by any Person challenging or questioning
      the use of any such Intellectual Property or the validity or effectiveness
      of
      any such Intellectual Property, nor does any Credit Party know of any such
      claim, and to the Credit Parties' knowledge the use of such Intellectual
      Property by the Borrower or any of its Subsidiaries does not infringe on the
      rights of any Person, except for such claims and infringements that in the
      aggregate, would not have or be reasonably expected to have a Material Adverse
      Effect.

    


    6.20 Solvency.

    


    Each
      Credit Party is and, after consummation of the transactions contemplated by
      this
      Credit Agreement, will be Solvent.

    


    6.21 Investments.

    


    All
      Investments of the Borrower and each of its Subsidiaries are either Permitted
      Investments or otherwise permitted by the terms of this Credit
      Agreement.

    


    6.22 No
      Financing of Corporate Takeovers.

    


    No
      proceeds of the Loans hereunder have been or will be used to acquire, directly
      or indirectly, any security in any transaction which is subject to Sections
      13
      or 14 of the Securities Exchange Act of 1934, as amended (including, without
      limitation, Sections 13(d) and 14(d) thereof) or to refinance any Indebtedness
      used to acquire any such securities.

    


    6.23 Jurisdiction
      of Organization, Etc..

    


    Set
      forth
      on Schedule 6.23 is the exact legal name, the jurisdiction of organization,
      federal tax identification number and chief executive office and principal
      place
      of business of each Credit Party. Schedule 6.23 may be updated from time to
      time
      by the Borrower by written notice to the Agent.

    


    6.24 Disclosure.

    


    Neither
      this Credit Agreement nor any financial statements delivered to the Lenders
      nor
      any other document, certificate or statement furnished to the Lenders by or
      on
      behalf of any Credit Party in connection with the transactions contemplated
      hereby contains any untrue statement of a material fact or omits to state a
      material fact necessary in order to make the statements contained therein or
      herein not misleading. 

    


    6.25 Licenses,
      etc.

    


    The
      Borrower and each of its Subsidiaries has obtained and holds in full force
      and
      effect, all franchises, licenses, permits, certificates, authorizations,
      qualifications, accreditations, easements, rights of way and other rights,
      consents and approvals which are necessary for the operation of their respective
      businesses as presently conducted.


    
      
        
        

      

      
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    6.26 No
      Burdensome Restrictions.

    


    Neither
      the Borrower nor any Subsidiary of the Borrower is a party to any agreement
      or
      instrument or subject to any other obligation or any charter or corporate
      restriction or any provision of any applicable law, rule or regulation which,
      individually or in the aggregate, would have or be reasonably expected to have
      a
      Material Adverse Effect.

    


    6.27 Brokers'
      Fees.

    


    No
      Credit
      Party has any obligation to any Person in respect of any finder's, broker's,
      investment banking or other similar fee in connection with any of the
      transactions contemplated under the Credit Documents.

    


    6.28 Labor
      Matters.

    


    There
      are
      no collective bargaining agreements or Multiemployer Plans covering the
      employees of the Borrower or any Subsidiary of the Borrower and none of such
      Persons has suffered any strikes, walkouts, work stoppages or other material
      labor difficulty within the last five years.

    


    6.29 Collateral
      Documents.

    


    The
      Collateral Documents create valid security interests in, and first Liens on,
      the
      Collateral purported to be covered thereby, which security interests and Liens
      are and will remain perfected security interests and Liens, prior to all other
      Liens other than Permitted Liens. Each of the representations and warranties
      made by the Borrower and its Subsidiaries in the Collateral Documents is true
      and correct.

    


    6.30 Subordination.

    


    The
      subordination provisions contained in the Subordinated Indenture are enforceable
      against the Borrower, the Guarantors and the holders of the notes issued
      pursuant thereto, and all Credit Party Obligations hereunder and under the
      other
      Credit Documents are within the definitions of "Senior Debt" (or any comparable
      term) and "Designated Senior Indebtedness" (or any comparable term) included
      in
      such subordination provisions. There exists no Designated Senior Debt for
      purposes of, and as defined in, the Subordinated Indenture (other than the
      Credit Party Obligations).

    


    


    SECTION
      7

    


    AFFIRMATIVE
      COVENANTS

    


    Each
      Credit Party hereby covenants and agrees that so long as this Credit Agreement
      is in effect and until the Loans, together with interest, fees and other
      obligations hereunder, have been paid in full, no Letter of Credit is
      outstanding and the Commitments hereunder shall have terminated:

    


    7.1 Information
      Covenants.

    


    The
      Borrower will furnish, or cause to be furnished, to the Agent:

    


    (a) Annual
      Financial Statements.
      As soon
      as available, and in any event upon the earlier of the date that is ninety-five
      days after the end of each fiscal year of the Borrower or within two Business
      

    
      
        
        

      

      
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    Days
      after the date such information is filed with the SEC, (i) a consolidated and
      consolidating balance sheet and income statement of the Borrower and its
      Subsidiaries, as of the end of such fiscal year, together with related
      consolidated and consolidating statements of operations and retained earnings
      and of cash flows for such fiscal year, setting forth in comparative form
      consolidated figures for the preceding fiscal year, all such financial
      information described above to be in reasonable form and detail and audited by
      independent certified public accountants of recognized national standing
      reasonably acceptable to the Agent and whose opinion shall be to the effect
      that
      such financial statements have been prepared in accordance with GAAP (except
      for
      changes with which such accountants concur) and shall not be limited as to
      the
      scope of the audit or qualified in any manner and (ii) to the extent filed
      with
      the SEC, a copy of the attestation report filed with the SEC of such certified
      public accountants as to the Borrower's internal controls pursuant to Section
      404 of Sarbanes-Oxley.

    


    (b) Quarterly
      Financial Statements.
      As soon
      as available, and in any event upon the earlier of the date that is 45 days
      after the close of each fiscal quarter of the Borrower (other than the fourth
      fiscal quarter, in which case 95 days after the end thereof) or within two
      Business Days of the date such information is filed with the SEC, a consolidated
      balance sheet and income statement of the Borrower and its Subsidiaries, as
      of
      the end of such fiscal quarter, together with related consolidated statements
      of
      operations and retained earnings and of cash flows for such fiscal quarter
      in
      each case setting forth in comparative form consolidated figures for the
      corresponding period of the preceding fiscal year, all such financial
      information described above to be in reasonable form and detail and reasonably
      acceptable to the Agent, and accompanied by a certificate of the chief financial
      officer of the Borrower to the effect that such quarterly financial statements
      fairly present in all material respects the financial condition of the Borrower
      and its Subsidiaries and have been prepared in accordance with GAAP, subject
      to
      changes resulting from audit and normal year-end audit adjustments.

    


    (c) Officer's
      Certificate.
      

    


    (i) At
      the
      time of delivery of the financial statements provided for in Sections 7.1(a)
      and
      7.1(b) above, a certificate of the chief financial or accounting officer of
      the
      Borrower substantially in the form of Exhibit
      7.1(c),
      (A)
      demonstrating compliance with the financial covenants contained in Section
      7.12
      by calculation thereof as of the end of each such fiscal period and (B) stating
      that no Default or Event of Default exists, or if any Default or Event of
      Default does exist, specifying the nature and extent thereof and what action
      the
      Borrower proposes to take with respect thereto.

    


    (ii) At
      the
      time of delivery of the financial statements provided for in Section 7.1(a)
      above for the fiscal years ending November 30, 2006, November 30, 2009 and
      November 30, 2011, an appraisal from an independent third party appraiser
      satisfactory to the Agent with respect to the brand values of the Borrower
      and
      its Subsidiaries. 

    


    (d) Annual
      Business Plan and Budgets.
      No
      later than 70 days after the end of each fiscal year of the Borrower, beginning
      with the fiscal year ending November 30, 2004, an annual business plan and
      budget of the Borrower and its Subsidiaries containing, among other things,
      pro
      forma financial statements for the next fiscal year. 

    


    (e) Compliance
      With Certain Provisions of the Credit Agreement.
      Within
      120 days after the end of each fiscal year of the Borrower, the Borrower shall
      deliver a certificate, containing information regarding the amount of any Asset
      Dispositions that were made during the prior fiscal year.


    
      
        
        

      

      
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    (f) Accountant's
      Certificate.
      Within
      the period for delivery of the annual financial statements provided in Section
      7.1(a), a certificate of the accountants conducting the annual audit stating
      that they have reviewed this Credit Agreement and stating further whether,
      in
      the course of their audit, they have become aware of any Default or Event of
      Default and, if any such Default or Event of Default exists, specifying the
      nature and extent thereof.

    


    (g) Auditor's
      Reports.
      Promptly upon receipt thereof, a copy of any "management letter" submitted
      by
      independent accountants to the Borrower or any of its Subsidiaries in connection
      with any annual, interim or special audit of the books of the Borrower or any
      of
      its Subsidiaries.

    


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

    


    (i) Notices.
      Upon a
      Credit Party obtaining knowledge thereof, such Credit Party will give written
      notice to the Agent immediately of (a) the occurrence of an event or condition
      consisting of a Default or Event of Default, specifying the nature and existence
      thereof and what action the Borrower proposes to take with respect thereto,
      and
      (b) the occurrence of any of the following with respect to the Borrower or
      any
      of its Subsidiaries (i) the pendency or commencement of any litigation, arbitral
      or governmental proceeding against the Borrower or any of its Subsidiaries
      which
      if adversely determined would have or would be reasonably expected to have
      a
      Material Adverse Effect, or (ii) the institution of any proceedings against
      the
      Borrower or any of its Subsidiaries with respect to, or the receipt of notice
      by
      such Person of potential liability or responsibility for violation, or alleged
      violation of any federal, state or local law, rule or regulation, including
      but
      not limited to, Environmental Laws, the violation of which would have or would
      be reasonably expected to have a Material Adverse Effect.

    


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

    
      
        
        

      

      
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    filed
      with the Department of Labor and/or the Internal Revenue Service pursuant to
      ERISA and the Code, respectively, for each "plan year" (within the meaning
      of
      Section 3(39) of ERISA).

    


    (k) Environmental.
      The
      Borrower and each of its Subsidiaries will conduct and complete all
      investigations, studies, sampling, and testing and all remedial, removal, and
      other actions necessary to address all Hazardous Materials on, from, or
      affecting any real property owned or leased by the Borrower or its Subsidiaries
      to the extent necessary to be in compliance with all Environmental Laws and
      all
      other applicable federal, state, and local laws, regulations, rules and policies
      and with the orders and directives of all Governmental Authorities exercising
      jurisdiction over such real property to the extent any failure would have or
      be
      reasonably expected to have a Material Adverse Effect.

    


    (l) Annual
      and Quarterly Reports.
      (i) At
      the time of delivery of the financial statements provided for in Section 7.1(a)
      above, a company-prepared report containing information as to brand sales and
      advertising cost analysis and variable contribution margins for the fiscal
      year
      of the Borrower most recently ending and (ii) at the time of delivery of the
      financial statements provided for in Section 7.1(b) above, a company-prepared
      report containing information with respect to the status of on-going litigation
      of the Borrower and its Subsidiaries, including, without limitation, judgments
      and settlements during such fiscal quarter.

    


    (m) Intellectual
      Property.
      Concurrently with the delivery of the financial statements referred to in
      Sections 7.1(a) and (b), a certificate of a Responsible Officer of the Borrower
      listing (A) all applications, if any, for Copyrights, Patents or Trademarks
      (each such term as defined in the Security Agreement) made since the date of
      the
      prior certificate (or, in the case of the first such certificate, the Closing
      Date), (B) all issuances of registrations or letters on existing applications
      for Copyrights, Patents and Trademarks (each such term as defined in the
      Security Agreement) received since the date of the prior certificate (or, in
      the
      case of the first such certificate, the Closing Date), and (C) all Trademark
      Licenses, Copyright Licenses and Patent Licenses (each such term as defined
      in
      the Security Agreement) entered into since the date of the prior certificate
      (or, in the case of the first such certificate, the Closing Date).

    


    (n) Other
      Information.
      With
      reasonable promptness upon any such request, such other information regarding
      the business, properties or financial condition of the Borrower and its
      Subsidiaries as the Agent or the Required Lenders may reasonably
      request.

    


    Documents
      required to be delivered pursuant to Section 7.1 (to the extent any such
      documents are included in materials otherwise filed with the SEC) may be
      delivered electronically and if so delivered, shall be deemed to have been
      delivered on the date (i) on which the Borrower posts such documents, or
      provides a link thereto on the Borrower's website on the Internet at the website
      address listed on Schedule
      11.1;
      or (ii)
      on which such documents are posted on the Borrower's behalf on an Internet
      or
      intranet website, if any, to which each Lender and the Agent have access
      (whether a commercial, third-party website or whether sponsored by the Agent);
      provided
      that:
      (i) the Borrower shall deliver paper copies of such documents to the Agent
      or
      any Lender that requests the Borrower to deliver such paper copies until a
      written request to cease delivering paper copies is given by the Agent or such
      Lender and (ii) the Borrower shall notify the Agent and each Lender (by
      telecopier or electronic mail) of the posting of any such documents and provide
      to the Agent by electronic mail electronic versions (i.e.,
      soft
      copies) of such documents. Notwithstanding anything contained herein, in every
      instance the Borrower shall be required to provide paper copies of the officer's
      certificates required by Section 7.1(c) to the Agent. Except for such officer's
      certificates, the Agent shall have no obligation to request the delivery or
      to
      maintain copies of the documents referred to above, and in any event shall
      have
      no responsibility to monitor compliance

    
      
        
        

      

      
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     by
      the Borrower with any such request for delivery, and each Lender shall be solely
      responsible for requesting delivery to it or maintaining its copies of such
      documents.

    


    The
      Borrower hereby acknowledges that (a) the Agent and/or the Arranger will make
      available to the Lenders materials and/or information provided by or on behalf
      of the Borrower hereunder (collectively, "Borrower
      Materials")
      by
      posting the Borrower Materials on IntraLinks or another similar electronic
      system (the "Platform")
      and
      (b) certain of the Lenders may be "public-side" Lenders (i.e.,
      Lenders
      that do not wish to receive material non-public information with respect to
      the
      Borrower or its securities) (each, a "Public
      Lender").
      The
      Borrower hereby agrees that it will use commercially reasonable efforts to
      identify that portion of the Borrower Materials that may be distributed to
      the
      Public Lenders and that (w) all such Borrower Materials shall be clearly and
      conspicuously marked "PUBLIC" which, at a minimum, shall mean that the word
      "PUBLIC" shall appear prominently on the first page thereof; (x) by marking
      Borrower Materials "PUBLIC," the Borrower shall be deemed to have authorized
      the
      Agent, the Arranger and the Lenders to treat such Borrower Materials as not
      containing any material non-public information (although it may be sensitive
      and
      proprietary) with respect to the Borrower or its securities for purposes of
      United States Federal and state securities laws (provided, however, that to
      the
      extent such Borrower Materials constitute Information, they shall be treated
      as
      set forth in Section 11.18); (y) all Borrower Materials marked "PUBLIC" are
      permitted to be made available through a portion of the Platform designated
      "Public Investor;" and (z) the Agent and the Arranger shall be entitled to
      treat
      any Borrower Materials that are not marked "PUBLIC" as being suitable only
      for
      posting on a portion of the Platform not designated "Public Investor."


    


    7.2 Preservation
      of Existence and Franchises.

    


    Except
      as
      permitted by Section 8.4, each of the Credit Parties will, and will cause each
      of its Subsidiaries to, do all things necessary to preserve and keep in full
      force and effect in all material respects its existence, rights, franchises
      and
      authority.

    


    7.3 Books
      and
      Records.

    


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

    


    7.4 Compliance
      with Law.

    


    Each
      of
      the Credit Parties will, and will cause each of its Subsidiaries to, comply
      with
      all laws, rules, regulations and orders, and all applicable restrictions imposed
      by all Governmental Authorities, applicable to it and its property (including,
      without limitation, Environmental Laws) if noncompliance with any such law,
      rule, regulation, order or restriction would have or reasonably be expected
      to
      have a Material Adverse Effect.

    


    7.5 Payment
      of Taxes and Other Indebtedness.

    


    Each
      of
      the Credit Parties will, and will cause its Subsidiaries to, pay and discharge
      (a) all taxes, assessments and governmental charges or levies imposed upon
      it,
      or upon its income or profits, or upon any of its properties, before they shall
      become delinquent, (b) all lawful claims (including claims for labor, materials
      and supplies) which, if unpaid, might give rise to a Lien upon any of its
      properties, and (c) except as prohibited hereunder, all of its other
      Indebtedness as it shall become due; provided, however, that a Credit Party
      or
      its Subsidiary shall not be required to pay any such tax, assessment,


    
      
        
        

      

      
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    charge,
      levy, claim or Indebtedness which is being contested in good faith by
      appropriate proceedings and as to which adequate reserves therefor have been
      established in accordance with GAAP, unless the failure to make any such payment
      (i) would give rise to an immediate right to foreclose on a Lien securing such
      amounts or (ii) would have a Material Adverse Effect. 

    


    7.6 Insurance.

    


    Each
      of
      the Credit Parties will, and will cause its Subsidiaries to maintain in full
      force and effect insurance (including worker's compensation insurance, liability
      insurance, casualty insurance and business interruption insurance) with
      financially sound and reputable insurance companies not Affiliates of the
      Borrower or any Subsidiary, in such amounts, with such deductibles and covering
      such risks as are customarily carried by companies engaged in similar businesses
      and owning similar properties in localities where the Borrower or the applicable
      Subsidiary operates; provided that the Borrower and its Subsidiaries may reduce
      the amount of insurance required to be maintained above to the extent the
      Borrower and its Subsidiaries establish a self-insurance program providing
      insurance coverage in lieu of such insurance. All liability policies shall
      have
      each Lender as an additional insured and all casualty policies shall have the
      Agent, on behalf of the Lenders, as loss payee.

    


    In
      the
      event there occurs any material loss, damage to or destruction of the Collateral
      of any Credit Party or any part thereof, such Credit Party shall promptly give
      written notice thereof to the Agent generally describing the nature and extent
      of such damage or destruction. Subsequent to any loss, damage to or destruction
      of the Collateral of any Credit Party or any part thereof, such Credit Party,
      whether or not the insurance proceeds, if any, received on account of such
      damage or destruction shall be sufficient for that purpose, at such Credit
      Party's cost and expense, will promptly repair or replace the Collateral of
      such
      Credit Party so lost, damaged or destroyed; provided, however, that such Credit
      Party shall not be obligated to repair or replace any Collateral so lost,
      damaged or destroyed to the extent the failure to make such repair or
      replacement (a) is desirable to the proper conduct of the business of such
      Credit Party in the ordinary course and otherwise is in the best interest of
      such Credit Party and (b) would not materially impair the rights and benefits
      of
      the Agent or the Lenders under this Credit Agreement or any other Credit
      Document. In the event a Credit Party shall receive any insurance proceeds,
      as a
      result of any loss, damage or destruction, in a net amount in excess of
      $500,000, such Credit Party will immediately pay over such proceeds to the
      Agent
      as cash collateral for the Credit Party Obligations. The Agent agrees to release
      such insurance proceeds to such Credit Party for replacement or restoration
      of
      the portion of the Collateral of such Credit Party lost, damaged or destroyed
      if, (A) the Agent has received written application for such release from such
      Credit Party together with evidence reasonably satisfactory to it that the
      Collateral lost, damaged or destroyed has been or will be replaced or restored
      to its condition (or by Collateral having a value at least equal to the
      condition of the asset subject to the loss, damage or destruction) immediately
      prior to the loss, destruction or other event giving rise to the payment of
      such
      insurance proceeds and (B) on the date of such release no Default or Event
      of
      Default exists. All insurance proceeds shall be subject to the security interest
      of the Lenders under the Collateral Documents.

    


    The
      present insurance coverage of the Borrower and its Subsidiaries is outlined
      as
      to carrier, policy number, expiration date, type and amount on Schedule
      7.6,
      as
Schedule
      7.6
      may be
      amended from time to time by written notice to the Agent.

    


    7.7 Maintenance
      of Property.

    


    Each
      of
      the Credit Parties will, and will cause its Subsidiaries to, maintain and
      preserve its properties and equipment in good repair, working order and
      condition, normal wear and tear excepted, and will make, or cause to be made,
      in
      such properties and equipment from time to time all repairs, 

    
      
        
        

      

      
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    renewals,
      replacements, extensions, additions, betterments and improvements thereto as
      may
      be needed or proper, to the extent and in the manner customary for companies
      in
      similar businesses.

    


    7.8 Performance
      of Obligations.

    


    Each
      of
      the Credit Parties will, and will cause its Subsidiaries to, perform in all
      material respects all of its obligations under the terms of all material
      agreements, indentures, mortgages, security agreements or other debt instruments
      to which it is a party or by which it is bound.

    


    7.9 Collateral.

    


    If,
      subsequent to the Closing Date, a Credit Party shall acquire any intellectual
      property, securities instruments, chattel paper or other personal property
      required to be delivered to the Agent as Collateral hereunder or under any
      of
      the Collateral Documents, the Borrower shall immediately notify the Agent of
      same. Each Credit Party shall take such action (including, but not limited
      to,
      the actions set forth in Section 5.1), as requested by the Agent and at its
      own
      expense, to ensure that the Lenders have a first priority perfected Lien in
      all
      personal property of the Credit Parties (whether now owned or hereafter
      acquired), subject only to Permitted Liens. Each Credit Party shall adhere
      to
      the covenants regarding the location of personal property as set forth in the
      Security Agreement.

    


    7.10 Use
      of
      Proceeds.

    


    The
      Credit Parties will use the proceeds of the Loans solely (a) to refinance the
      existing Indebtedness of the Borrower, (b) to finance the JEWEL Acquisition
      and
      to pay fees and expenses incurred in connection therewith, (c) to provide
      working capital, (d) to finance Permitted Acquisitions and (e) for general
      corporate purposes.

    


    7.11 Audits/Inspections.

    


    Upon
      reasonable notice and during normal business hours, each Credit Party will,
      and
      will cause its Subsidiaries to, permit representatives appointed by the Agent
      or
      any Lender, including, without limitation, independent accountants, agents,
      attorneys and appraisers to visit and inspect such Credit Party's (or its
      Subsidiary's) property, including its books and records, its accounts receivable
      and inventory, its facilities and its other business assets, and to make
      photocopies or photographs thereof and to write down and record any information
      such representative obtains and shall permit the Agent or its representatives
      to
      investigate and verify the accuracy of information provided to the Lenders
      and
      to discuss all such matters with the officers, employees and representatives
      of
      the Credit Parties and their Subsidiaries. The Credit Parties agree that the
      Agent, and its representatives, may conduct an annual audit of the Collateral,
      at the expense of the Borrower.

    


    7.12 Financial
      Covenants.

    


    (a) Fixed
      Charge Coverage Ratio.
      The
      Fixed Charge Coverage Ratio, as of the end of each fiscal quarter, commencing
      with the fiscal quarter ending May 31, 2007, shall be greater than or equal
      to
      2.0 to 1.0.

    


    (b) Leverage
      Ratio.
      The
      Leverage Ratio shall be less than or equal to (i) 4.75 to 1.0 as of the end
      of
      any fiscal quarter ending during the period from May 31, 2007 to and including
      November 30, 2007 and (ii) 4.25 to 1.0 as of the end of any fiscal quarter
      ending on or after February 29, 2008.


    
      
        
        

      

      
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    (c) Senior
      Secured Leverage
      Ratio.
      The
      Senior Secured Leverage Ratio shall be less than or equal to (i) 3.5 to 1.0
      as
      of the end of any fiscal quarter ending during the period from May 31, 2007
      to
      and including November 30, 2007 and (ii) 3.25 to 1.0 as of the end of any fiscal
      quarter ending on or after February 29, 2008.

    


    (d) Brand
      Value.
      As of
      the end of each fiscal quarter of the Borrower, with respect to the Borrower
      and
      its Subsidiaries on a consolidated basis, the ratio of (i) the fair market
      value
      of all brands or product lines of the Borrower and its Subsidiaries on a
      consolidated basis on such date to (ii) Senior Secured Indebtedness on such
      date
      shall be greater than or equal to 2.0 to 1.0. 

    


    7.13 Additional
      Credit Parties.

    


    At
      the
      time any Person becomes a direct Subsidiary of a Credit Party or at the time
      any
      Person that is not a Guarantor hereunder becomes a guarantor under the
      Subordinated Indenture, the Borrower shall so notify the Agent and promptly
      thereafter (but in any event within 30 days after the date thereof) shall cause
      such Person to (a) if such Person is a Domestic Subsidiary or if such Person
      has
      become a guarantor under the Subordinated Indenture, execute a Joinder Agreement
      in substantially the same form as Exhibit
      7.13,
      (b)
      cause all of the Capital Stock of such Person (if such Person is a Domestic
      Subsidiary) or 65% of the Capital Stock of such Person (if such Person is a
      Material Foreign Subsidiary) to be delivered to the Agent (together with undated
      stock powers signed in blank) and pledged to the Agent pursuant to an
      appropriate pledge agreement in substantially the form of the Pledge Agreement
      and otherwise in a form acceptable to the Agent, (c) if such Person is a
      Domestic Subsidiary, pledge all of its assets to the Lenders pursuant to a
      security agreement in substantially the form of the Security Agreement and
      otherwise in a form acceptable to the Agent, (d) if such Person is a Domestic
      Subsidiary and has any Subsidiaries, (i) deliver all of the Capital Stock of
      such Domestic Subsidiaries and 65% of the Capital Stock of such Material Foreign
      Subsidiaries (together with undated stock powers signed in blank) to the Agent
      and (ii) execute a pledge agreement in substantially the form of the Pledge
      Agreement and otherwise in a form acceptable to the Agent, and (e) deliver
      such
      other documentation as the Agent may reasonably request in connection with
      the
      foregoing, including, without limitation, appropriate UCC-1 financing
      statements, landlord waivers, certified resolutions and other organizational
      and
      authorizing documents of such Person and favorable opinions of counsel to such
      Person (which shall cover, among other things, the legality, validity, binding
      effect and enforceability of the documentation referred to above), all in form,
      content and scope reasonably satisfactory to the Agent.

    


    7.14 Ownership
      of Subsidiaries.

    


    The
      Borrower shall (a) at all times own (directly or indirectly through other
      Subsidiaries) 100% of the Capital Stock of its Subsidiaries (except as necessary
      to qualify directors where required by applicable law or to satisfy other
      requirements of applicable law with respect to the ownership of Capital Stock
      of
      Foreign Subsidiaries) and (b) sell, transfer or otherwise dispose of any shares
      of Capital Stock of any of its Subsidiaries only in transactions otherwise
      permitted by this Credit Agreement.

    


    7.15 Appraisal
      Reports.

    


    To
      the
      extent required to comply with FASB 142 or (b) following the occurrence of
      an
      Event of Default (if requested by the Agent), the Borrower and its Subsidiaries
      shall provide the Agent, at the expense of the Borrower, with asset appraisal
      reports with respect to the personal property of the Borrower and its
      Subsidiaries, including without limitation, brand values. 


    
      
        
        

      

      
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    7.16 Post-Closing
      Matters.

    


    The
      Credit Parties agree to use commercially reasonable efforts to obtain landlord
      waivers with respect to each of their respective leased real properties (in
      form
      and substance reasonably satisfactory to the Agent) within 90 days following
      the
      Closing Date.

    


    SECTION
      8

    


    NEGATIVE
      COVENANTS

    


    Each
      Credit Party hereby covenants and agrees that so long as this Credit Agreement
      is in effect and until the Loans, together with interest, fees and other
      obligations hereunder, have been paid in full, no Letter of Credit is
      outstanding and the Commitments hereunder shall have terminated:

    


    8.1 Indebtedness.

    


    No
      Credit
      Party will, nor will it permit any of its Subsidiaries to, contract, create,
      incur, assume or permit to exist any Indebtedness, except:

    


    (a) Indebtedness
      arising under this Credit Agreement and the other Credit Documents;

    


    (b) the
      Subordinated Debt;

    


    (c) Indebtedness
      existing as of the Closing Date as referenced in Section 6.10 (and renewals,
      refinancings or extensions thereof on terms and conditions no more favorable,
      in
      the aggregate, to such Person than such existing Indebtedness and in a principal
      amount not in excess of that outstanding as of the date of such renewal,
      refinancing or extension);

    


    (d) Indebtedness
      owing by one Credit Party to another Credit Party;

    


    (e) purchase
      money Indebtedness (including Capital Leases) incurred by the Borrower or any
      of
      its Subsidiaries to finance the purchase of fixed assets; provided that (i)
      the
      total of all such Indebtedness for all such Persons taken together shall not
      exceed an aggregate principal amount of $2,000,000 at any one time outstanding
      (including any such Indebtedness referred to in subsection (c) above); (ii)
      such
      Indebtedness when incurred shall not exceed the purchase price of the asset(s)
      financed; and (iii) no such Indebtedness shall be refinanced for a principal
      amount in excess of the principal balance outstanding thereon at the time of
      such refinancing; 

    


    (f) obligations
      of the Credit Parties in respect of Hedging Agreements entered into in the
      ordinary course of business to manage existing or anticipated risks and not
      for
      speculative purposes; 

    


    (g) Indebtedness
      incurred by Foreign Subsidiaries not to exceed $500,000, in the aggregate,
      at
      any one time outstanding; 

    


    (h) commercial
      letters of credit in an aggregate face amount not to exceed $1,000,000 at any
      one time outstanding; 

    


    (i) Indebtedness
      of the Borrower under the Convertible Notes in an aggregate principal amount
      not
      to exceed $125,000,000;
      and


    
      
        
        

      

      
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    (j) Indebtedness
      of the Borrower owing to HBA Indemnity Company, Ltd. in an aggregate principal
      amount not to exceed 85% of the aggregate amount of premiums paid by the
      Borrower to HBA Indemnity Company, Ltd. 

    


    8.2 Liens.

    


    No
      Credit
      Party will, nor will it permit its Subsidiaries to, contract, create, incur,
      assume or permit to exist any Lien with respect to any of its property or assets
      of any kind (whether real or personal, tangible or intangible), other than
      any
      "margin stock" within the meaning of Regulation U, whether now owned or after
      acquired, except for Permitted Liens.

    


    8.3 Nature
      of
      Business.

    


    No
      Credit
      Party will, nor will it permit its Subsidiaries to, alter the character of
      its
      business from that conducted as of the Closing Date or engage in any business
      other than the business conducted as of the Closing Date, which with respect
      to
      Signal shall be limited to the ownership of trademarks and tradenames for the
      purpose of licensing (a) any or all of such trademarks and tradenames to the
      Borrower or any other Credit Party and (b) any or all of such trademarks and
      tradenames that are not registered in the United States or Canada to any Foreign
      Subsidiary of the Borrower.

    


    8.4 Consolidation
      and Merger.

    


    No
      Credit
      Party will, nor will it permit its Subsidiaries to, enter into any transaction
      of merger or consolidation or liquidate, wind up or dissolve itself (or suffer
      any liquidation or dissolution); provided that notwithstanding the foregoing
      provisions of this Section 8.4, the following actions may be taken if (a) the
      Agent is given prior written notice of such action, and the Credit Parties
      execute and deliver such documents, instruments and certificates as the Agent
      may request in order to maintain the perfection and priority of the Liens on
      the
      assets of the Credit Parties and (b) after giving effect thereto no Default
      or
      Event of Default exists:

    


    (i) any
      Credit Party may be merged or consolidated with or into the Borrower, or any
      Credit Party (other than the Borrower) may be merged or consolidated with or
      into any other Credit Party; provided that if such transaction shall be between
      the Borrower and another Credit Party, the Borrower shall be the continuing
      or
      surviving corporation; 

    


    (ii) any
      Foreign Subsidiary may merge or consolidate with any other Foreign Subsidiary;
      and 

    


    (iii) any
      Subsidiary may dissolve, liquidate or wind up its affairs at any time provided
      that such dissolution, liquidation or winding up, as applicable, could not
      have
      a Material Adverse Effect.

    


    8.5 Sale
      or
      Lease of Assets.

    


    No
      Credit
      Party will, nor will it permit any of its Subsidiaries to make any Asset
      Disposition other than (a) the
      sale,
      transfer or other disposition of "margin stock" within the meaning of Regulation
      U, (b) the non-recourse sale of trade accounts receivable to a Person that
      is
      not an Affiliate of the Borrower provided that (i) at the time of the sale
      (and
      after giving effect thereto) no Default or Event of Default exists, (ii) as
      a
      result of such sale, no Material Adverse Effect would occur or be reasonably
      expected to occur, and (iii) the amount of such receivables subject to such
      sales do not exceed, in the aggregate, 

    
      
        
        

      

      
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    $7,000,000
      at any time outstanding, (c) other sales of equipment provided that (i) the
      sale
      is for fair market value, (ii) the sale is for cash consideration, (iii) at
      the
      time of the sale (and after giving effect thereto) no Default or Event of
      Default exists, (iv) as a result of such sale, no Material Adverse Effect would
      occur or be reasonably expected to occur and (v) such sales do not exceed,
      in
      the aggregate, $1,000,000 during any fiscal year, (d)
      sales
      of product lines (or the right to produce a consumer product or products)
      provided that (i) the dispositions permitted under this subparagraph (d) shall
      not exceed $20,000,000 during any fiscal year and, (ii) the dispositions
      permitted under this subparagraph (d) during any fiscal year shall be limited
      to
      product lines (or the right to produce a consumer product or products) having
      aggregate sales for the twelve-month period ending on the fiscal quarter ending
      immediately preceding the sale in an aggregate amount not exceeding ten percent
      (10%) of EBITDA for such twelve month period and (iii) the Credit Parties shall
      have delivered to the Agent a Pro Forma Compliance Certificate demonstrating
      that after giving effect to any such disposition on a Pro Forma Basis, the
      Credit Parties and their Subsidiaries would have been in compliance with all
      the
      financial covenants set forth in Section 7.12, (e) the transfer by the Borrower
      of the Capital Stock of Chattem (U.K.) Limited to Chattem Global Consumer
      Products Limited, (f) the sale, lease or transfer or other disposal by a Foreign
      Subsidiary of the Borrower of any or all of its assets (including the Capital
      Stock of any of its Subsidiaries) to any other Subsidiary of the Borrower and
      (g) the sale of the Borrower's Cessna
      Model 650 with Manufacturer's Serial No. 650-0034 and FAA Registration No.
      N650GH.

    


    8.6 Advances,
      Investments and Loans.

    


    No
      Credit
      Party will, nor will it permit any of its Subsidiaries to, make any Investments
      except for Permitted Investments. 

    


    8.7 Restricted
      Payments.

    


    No
      Credit
      Party will, nor will it permit any of its Subsidiaries to, directly or
      indirectly, (a) declare or pay any dividends (whether cash or otherwise) or
      make
      any other distribution upon any shares of its Capital Stock of any class or
      (b)
      purchase, redeem or otherwise acquire or retire or make any provisions for
      redemption, acquisition or retirement of any shares of its Capital Stock of
      any
      class or any warrants or options to purchase any such shares (any such
      declaration, payment, distribution, purchase, redemption or other acquisition,
      a
      "Restricted Payment"); provided, however, (i) the Subsidiaries of the Borrower
      may pay dividends to the Borrower and (ii) the Borrower may purchase, redeem,
      acquire or retire shares of its Capital Stock of any class or any warrants
      or
      options to purchase any such shares of its Capital Stock occurring subsequent
      to
      Fifth Amendment Effective Date in an amount not to exceed $93,110,000 so long
      as
      (A) after giving effect thereto no Default or Event of Default exists and (B)
      the Borrower shall have provided the Agent a Pro Forma Compliance Certificate
      demonstrating that after giving effect to any such transaction on a Pro Forma
      Basis, the Credit Parties and their Subsidiaries would have been in compliance
      with all the financial covenants set forth in Section 7.12. For the avoidance
      of
      doubt, the parties hereto agree that (a) nothing contained in this Section
      8.7
      shall prohibit the Borrower from using $32,042,500 of the proceeds from the
      issuance of the Convertible Notes to fund a convertible note hedge transaction
      with an affiliate of Merrill Lynch & Co. on the date of the issuance of the
      Convertible Notes, which transaction is designed to offset the Borrower's
      exposure to potential dilution of its common stock upon the conversion of the
      Convertible Notes and (b) the use of such proceeds as described above shall
      not
      be considered a Restricted Payment.

    


    8.8 Transactions
      with Affiliates.

    


    No
      Credit
      Party will, nor will it permit its Subsidiaries to, enter into any transaction
      or series of transactions, whether or not in the ordinary course of business,
      with any officer, director, shareholder, 

    
      
        
        

      

      
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    Subsidiary
      or Affiliate other than on terms and conditions substantially as favorable
      as
      would be obtainable in a comparable arm's-length transaction with a Person
      other
      than an officer, director, shareholder, Subsidiary or Affiliate except for
      (a)
      transactions set forth on Schedule
      8.8
      and (b)
      intercompany transactions that are otherwise permitted by this Credit
      Agreement.

    


    8.9 Fiscal
      Year; Organizational Documents.

    


    No
      Credit
      Party will, nor will it permit any of its Subsidiaries to, change its fiscal
      year or materially change its articles or certificate of incorporation or its
      bylaws without the prior written consent of the Required Lenders. The
      Convertible Indenture may not be amended or modified in any material manner
      without the prior written consent of the Required Lenders.

    


    8.10 Prepayments
      of Indebtedness.

    


    No
      Credit
      Party will, nor will it permit any of its Subsidiaries to, (a) amend or modify
      (or permit the amendment or modification of) any of the terms of any
      Indebtedness if such amendment or modification would add or change any terms
      in
      a manner adverse to the Lenders, including but not limited to, shortening final
      maturity or average life to maturity of such Indebtedness or requiring any
      payment to be made sooner than originally scheduled or increasing the interest
      rate applicable thereto or change any subordination provision thereof, (b)
      during the existence of a Default or Event of Default, or if a Default or Event
      of Default would be caused as a result thereof, make (or give any notice with
      respect thereto) any voluntary or optional payment or prepayment or redemption
      or acquisition for value of (including, without limitation, by way of depositing
      money or securities with the trustee with respect thereto before due for the
      purpose of paying when due), refund, refinance or exchange of any other
      Indebtedness and (c) make any repayment in cash for Convertible Notes that
      are
      surrendered by the holders thereof (or otherwise make any payment on the
      principal of any Convertible Notes) unless (i) prior to any such repayment,
      the
      Borrower has Sufficient Liquidity (as defined below), (ii) prior to any such
      repayment, the Borrower shall deliver to the Agent a Pro Forma Compliance
      Certificate demonstrating that after giving effect to any such payment on a
      Pro
      Forma Basis, the Credit Parties and their Subsidiaries would have been in
      compliance with all the financial covenants set forth in Section 7.12 and (ii)
      before and after giving effect to any such repayment, no Default or Event of
      Default shall have occurred and be continuing.

    


    For
      purposes hereof, "Sufficient Liquidity" means cash and Cash Equivalents
      (including, without limitation, availability under the Revolving Committed
      Amount) in an aggregate amount equal to 125% of the sum of the principal amount
      of the Convertible Notes contemplated to be paid by the Borrower in
      cash.

    


    8.11 Subordinated
      Debt.

    


    Notwithstanding
      Section 8.10, no Credit Party will (i) make or offer to make any principal
      payments with respect to the Subordinated Debt, (ii) redeem or offer to redeem
      any of the Subordinated Debt or (iii) deposit any funds intended to discharge
      or
      defease any or all of the Subordinated Debt; provided,
      however,
      the
      Borrower may redeem or repurchase the Subordinated Debt in an aggregate amount
      not to exceed $20,000,000 (such amount to include any accrued interest, premiums
      or penalties associated therewith) during any fiscal year provided
      the
      Credit Parties shall have delivered to the Agent a Pro Forma Compliance
      Certificate demonstrating that after giving effect to such repurchase or
      redemption on a Pro Forma Basis, the Credit Parties and their Subsidiaries
      would
      have been in compliance with all the financial covenants set forth in Section
      7.12. The Subordinated Debt or the Subordinated Indenture may not be amended
      or
      modified in any material manner without the prior written consent of the
      Required Lenders, it being specifically understood and agreed that no amendment
      to Article Four or 

    
      
        
        

      

      
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    Article
      Twelve of the Subordinated Indenture shall be made without the prior written
      consent of the Required Lenders.

    


    8.12 Limitations.

    


    No
      Credit
      Party will, nor will it permit any of its Subsidiaries to, directly or
      indirectly, create or otherwise cause, incur, assume, suffer or permit to exist
      or become effective any consensual encumbrance or restriction of any kind on
      the
      ability of any such Person to (a) pay dividends or make any other distribution
      on any of such Person's Capital Stock, (b) pay any Indebtedness owed to the
      Borrower or any other Credit Party, (c) make loans or advances to any other
      Credit Party or (d) transfer any of its property to any other Credit Party,
      except for encumbrances or restrictions existing under or by reason of (i)
      customary non-assignment provisions in any lease governing a leasehold interest,
      (ii) this Credit Agreement and the other Credit Documents, (iii) the
      Subordinated Indenture.

    


    8.13 Sale
      Leasebacks.

    


    No
      Credit
      Party will, nor will it permit any of its Subsidiaries to, directly or
      indirectly become or remain liable as lessee or as guarantor or other surety
      with respect to any lease, of any property (whether real or personal or mixed),
      whether now owned or hereafter acquired, (a) which such Credit Party or
      Subsidiary has sold or transferred or is to sell or transfer to any other Person
      other than a Credit Party or (b) which such Credit Party or Subsidiary intends
      to use for substantially the same purpose as any other property which has been
      sold or is to be sold or transferred by such Credit Party or Subsidiary to
      any
      Person in connection with such lease.

    


    8.14 Negative
      Pledges.

    


    Other
      than as set forth in Section 4.12 of the Subordinated Indenture, none of the
      Credit Parties will, nor will it permit any of its Subsidiaries to, enter into,
      assume or become subject to any agreement prohibiting or otherwise restricting
      the creation or assumption of any Lien upon its properties or assets, whether
      now owned or hereafter acquired, or requiring the grant of any security for
      such
      obligation if security is given for some other obligation.

    


    8.15 Capital
      Expenditures.

    


    The
      Credit Parties and their Subsidiaries will not make Capital Expenditures, in
      any
      fiscal year, that would exceed $10,000,000 in the aggregate; provided,
      however,
      in
      addition to the maximum annual Capital Expenditures permitted by the preceding
      clause, the Credit Parties shall also be permitted to make (a) a one time
      Capital Expenditure not to exceed $10,000,000 for the construction and/or
      acquisition of a warehouse located in Chattanooga,
      Tennessee and (b) a one time Capital Expenditure not to exceed $8,000,000 for
      the purchase of an airplane.

    


    8.16 Operating
      Leases.

    


    Neither
      the Borrower nor any of its Subsidiaries shall create, incur, assume or permit
      to exist obligations under Operating Leases which require aggregate annual
      payments in excess of $4,500,000.


    
      
        
        

      

      
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    SECTION
      9

    


    EVENTS
      OF DEFAULT

    


    9.1 Events
      of
      Default.

    


    An
      Event
      of Default shall exist upon the occurrence of any of the following specified
      events (each an "Event
      of Default"):

    


    (a) Payment.
      Any
      Credit Party shall:

    


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

    


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

    


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

    


    (c) Covenants.
      Any
      Credit Party shall:

    


    (i) default
      in the due performance or observance of any term, covenant or agreement
      contained in Sections 7.2, 7.4, 7.5, 7.6, 7.9, 7.10, 7.12, 7.13, 7.14, 7.15
      or
      7.16 or Section 8; or

    


    (ii) default
      in the due performance or observance by it of any term, covenant or agreement
      contained in Section 7.1 and such default shall continue unremedied for a period
      of five Business Days after the earlier of an officer of a Credit Party becoming
      aware of such default or notice thereof given by the Agent; or 

    


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

    


    (d) Other
      Credit Documents.
      (i) Any
      Credit Party shall default in the due performance or observance of any term,
      covenant or agreement in any of the other Credit Documents and such default
      shall continue unremedied for a period of at least 30 days after the earlier
      of
      an officer of a Credit Party becoming aware of such default or notice thereof
      given by the Agent, or (ii) any Credit Document shall fail to be in full force
      and effect or to give the Agent and/or the Lenders the security interests,
      liens, rights, powers and privileges purported to be created
      thereby.

    


    (e) Guaranties.
      The
      guaranty given by the Credit Parties hereunder or by any Additional Credit
      Party
      hereafter or any provision thereof shall cease to be in full force and effect,
      or any guarantor 

    
      
        
        

      

      
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    thereunder
      or any Person acting by or on behalf of such guarantor shall deny or disaffirm
      such Guarantor's obligations under such guaranty.

    


    (f) Bankruptcy,
      etc.
      The
      occurrence of any of the following with respect to the Borrower or any of its
      Subsidiaries (i) a court or governmental agency having jurisdiction in the
      premises shall enter a decree or order for relief in respect of the Borrower
      or
      any of its Subsidiaries in an involuntary case under any applicable bankruptcy,
      insolvency or other similar law now or hereafter in effect, or appoint a
      receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
      official of any of the Borrower or any of its Subsidiaries or for any
      substantial part of its property or ordering the winding up or liquidation
      of
      its affairs; or (ii) an involuntary case under any applicable bankruptcy,
      insolvency or other similar law now or hereafter in effect is commenced against
      the Borrower or any of its Subsidiaries and such petition remains unstayed
      and
      in effect for a period of 60 consecutive days; or (iii) the Borrower or any
      of
      its Subsidiaries shall commence a voluntary case under any applicable
      bankruptcy, insolvency or other similar law now or hereafter in effect, or
      consent to the entry of an order for relief in an involuntary case under any
      such law, or consent to the appointment or taking possession by a receiver,
      liquidator, assignee, custodian, trustee, sequestrator or similar official
      of
      such Person or any substantial part of its property or make any general
      assignment for the benefit of creditors; or (iv) the Borrower or any of its
      Subsidiaries shall admit in writing its inability to pay its debts generally
      as
      they become due or any action shall be taken by such Person in furtherance
      of
      any of the aforesaid purposes.

    


    (g) Defaults
      under Other Agreements.
      With
      respect to any Indebtedness (other than Indebtedness outstanding under this
      Credit Agreement) of the Borrower or any of its Subsidiaries in a principal
      amount in excess of $5,000,000, (i) a Credit Party shall (A) default in any
      payment (beyond the applicable grace period with respect thereto, if any) with
      respect to any such Indebtedness, or (B) default (after giving effect to any
      applicable grace period) in the observance or performance of any term, covenant
      or agreement relating to such Indebtedness or contained in any instrument or
      agreement evidencing, securing or relating thereto, or any other event or
      condition shall occur or condition exist, the effect of which default or other
      event or condition is to cause, or permit, the holder or holders of such
      Indebtedness (or trustee or agent on behalf of such holders) to cause
      (determined without regard to whether any notice or lapse of time is required)
      any such Indebtedness to become due prior to its stated maturity; or (ii) any
      such Indebtedness shall be declared due and payable, or required to be prepaid
      other than by a regularly scheduled required prepayment, prior to the stated
      maturity thereof.

    


    (h) Judgments.
      (i) One
      or more final, non-appealable judgments, orders, or decrees shall be entered
      against any one or more of the Borrower or any of its Subsidiaries involving
      a
      liability of $5,000,000 or more, in the aggregate, (to the extent not paid
      or
      covered by self-insurance or insurance provided by a carrier who has
      acknowledged coverage) and such judgments, orders or decrees shall continue
      unsatisfied, undischarged and unstayed for a period of 30 days, or (ii) one
      or
      more judgments, orders, decrees, fines, penalties, settlements, indemnities,
      payments or other liabilities shall be entered against or incurred by any one
      or
      more of the Borrower or any of its Subsidiaries resulting in a liability not
      covered or reimbursable by insurance or third party indemnity payments, in
      each
      case, that are not subject to dispute, of $25,000,000 or more, in the aggregate
      in connection with products liability and/or insurance litigation related
      thereto.

    


    (i) ERISA.
      Any of
      the following events or conditions: (A) any "accumulated funding deficiency,"
      as
      such term is defined in Section 302 of ERISA and Section 412 of the Code,
      whether or not waived, shall exist with respect to any Plan, or any lien shall
      arise on the assets of the Borrower or any of their Subsidiaries or any ERISA
      Affiliate in favor of the PBGC or a Plan; (B) a Termination Event shall occur
      with respect to a Single Employer Plan, which is, in the reasonable opinion
      of
      the Agent, likely to result in the termination of such Plan for purposes of
      Title IV of ERISA; (C) a Termination Event shall 

    
      
        
        

      

      
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    occur
      with respect to a Multiemployer Plan or Multiple Employer Plan, which is, in
      the
      reasonable opinion of the Agent, likely to result in (i) the termination of
      such
      Plan for purposes of Title IV of ERISA, or (ii) the Borrower or any of its
      Subsidiaries or any ERISA Affiliate incurring any liability in connection with
      a
      withdrawal from, reorganization of (within the meaning of Section 4241 of
      ERISA), or insolvency or (within the meaning of Section 4245 of ERISA) such
      Plan; or (D) any prohibited transaction (within the meaning of Section 406
      of
      ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall
      occur which may subject the Borrower or any of its Subsidiaries or any ERISA
      Affiliate to any liability under Sections 406, 409, 502(i), or 502(l) of ERISA
      or Section 4975 of the Code, or under any agreement or other instrument pursuant
      to which the Borrower or any of its Subsidiaries or any ERISA Affiliate has
      agreed or is required to indemnify any person against any such
      liability.

    


    (j) Ownership.
      There
      shall occur a Change of Control.

    


    (k) Subordinated
      Debt.
      (i) Any
      holder of the Subordinated Debt alleges (or any Governmental Authority with
      applicable jurisdiction determines) that the Lenders are not holders of Senior
      Indebtedness (as defined in the Subordinated Indenture) or (ii) the
      subordination provisions in the Subordinated Indenture shall, in whole or in
      part, terminate, cease to be effective or cease to be legally valid, binding
      and
      enforceable against any holder of the Subordinated Debt.

    


    (l) Business.
      The
      Borrower commences to engage in any material respect in a line of business
      or
      activity other than the business of manufacturing and marketing of brand name
      over-the-counter pharmaceuticals, dietary supplements, functional toiletries
      and
      cosmetics.

    


    (m) Subordinated
      Indenture.
      There
      shall occur an "Event of Default" (or any comparable term) under, and as defined
      in, the Subordinated Indenture, (ii) any of the Credit Party Obligations for
      any
      reason shall cease to be "Designated Senior Indebtedness" (or any comparable
      term) under, and as defined in, the Subordinated Indenture, (iii) any
      Indebtedness other than the Credit Party Obligations shall constitute
      "Designated Senior Indebtedness" (or any comparable term) under, and as defined
      in, the Subordinated Indenture or (iv) the subordination provisions of the
      Subordinated Indenture shall, in whole or in part, terminate, cease to be
      effective or cease to be legally valid, binding and enforceable against any
      holder of the notes issued thereunder.

    


    (n) Convertible
      Notes.
      There
      shall occur an "Event of Default" (or any comparable term) under, and as defined
      in, the Convertible Indenture.

    


    9.2 Acceleration;
      Remedies.

    


    Upon
      the
      occurrence of an Event of Default, and at any time thereafter unless and until
      such Event of Default has been waived in writing by the Required Lenders (or
      the
      Lenders as may be required hereunder), the Agent shall, upon the request and
      direction of the Required Lenders, by written notice to the Borrower, take
      any
      of the following actions:

    


    (a) Termination
      of Commitments.
      Declare
      the Commitments terminated whereupon the Commitments shall be immediately
      terminated.

    


    (b) Acceleration
      of Loans.
      Declare
      the unpaid principal of and any accrued interest in respect of all Loans, any
      reimbursement obligations arising from drawings under Letters of Credit and
      any
      and all other Indebtedness or obligations of any and every kind owing by a
      Credit Party to any of the Lenders 

    
      
        
        

      

      
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    hereunder
      to be due whereupon the same shall be immediately due and payable without
      presentment, demand, protest or other notice of any kind, all of which are
      hereby waived by the Credit Parties.

    


    (c) Cash
      Collateral.
      Direct
      the Credit
      Parties to
      Cash
      Collateralize (and the Credit
      Parties agree
      that upon receipt of such notice, or upon the occurrence of an Event of Default
      under Section 9.1(f), they will immediately pay) the LOC Obligations in an
      amount equal to the maximum aggregate amount which may be drawn under all
      Letters of Credits then outstanding.

    


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

    


    Notwithstanding
      the foregoing, if an Event of Default specified in Section 9.1(f) shall occur,
      then the Commitments shall automatically terminate and all Loans, all
      reimbursement obligations arising from drawings under Letters of Credit, all
      accrued interest in respect thereof, all accrued and unpaid fees and other
      Indebtedness or obligations owing to the Lenders hereunder shall immediately
      become due and payable without the giving of any notice or other action by
      the
      Agent or the Lenders, which notice or other action is expressly waived by the
      Credit Parties.

    


    Notwithstanding
      the fact that enforcement powers reside primarily with the Agent, each Lender
      has a separate right of payment and shall be considered a separate "creditor"
      holding a separate "claim" within the meaning of Section 101(5) of the
      Bankruptcy Code or any other insolvency statute.

    


    


    SECTION
      10

    


    AGENCY
      PROVISIONS

    


    10.1 Appointment
      and Authority.
      

    


    (a) Each
      of
      the Lenders and the Issuing Lender hereby irrevocably appoints Bank of America
      to act on its behalf as the Agent hereunder and under the other Credit Documents
      and authorizes the Agent to take such actions on its behalf and to exercise
      such
      powers as are delegated to the Agent by the terms hereof or thereof, together
      with such actions and powers as are reasonably incidental thereto. The
      provisions of this Section 10 are solely for the benefit of the Agent, the
      Lenders and the Issuing Lender, and neither the Borrower nor any other Credit
      Party shall have rights as a third party beneficiary of any of such
      provisions.

    


    (b) The
      Agent
      shall also act as the "collateral
      agent"
      under
      the Credit Documents, and each of the Lenders (in its capacities as a Lender
      and
      Swingline Lender) and the Issuing Lender, hereby irrevocably appoints and
      authorizes the Agent to act as the agent of such Lender and the Issuing Lender
      for purposes of acquiring, holding and enforcing any and all Liens on Collateral
      granted by any of the Credit Parties to secure any of the Credit Party
      Obligations, together with such powers and discretion as are reasonably
      incidental thereto. In this connection, the Agent, as "collateral agent" and
      any
      co-agents, sub-agents and attorneys-in-fact appointed by the Agent pursuant
      to
      Section 10.5 for purposes of holding or enforcing any Lien on the Collateral
      (or
      any portion thereof) granted under the Collateral Documents, or for exercising
      any rights and remedies thereunder at the direction of the Agent), shall be
      entitled to the benefits of all provisions of this Section 10 and Section 11
      (including Section 11.5(c), as though such co-agents, sub-agents and
      attorneys-in-fact were the "collateral agent" under the Credit Documents) as
      if
      set forth in full herein with respect thereto.


    
      
        
        

      

      
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    10.2 Rights
      as
      a Lender.

    


    The
      Person serving as the Agent hereunder shall have the same rights and powers
      in
      its capacity as a Lender as any other Lender and may exercise the same as though
      it were not the Agent and the term "Lender" or "Lenders" shall, unless otherwise
      expressly indicated or unless the context otherwise requires, include the Person
      serving as the Agent hereunder in its individual capacity. Such Person and
      its
      Affiliates may accept deposits from, lend money to, act as the financial advisor
      or in any other advisory capacity for and generally engage in any kind of
      business with the Borrower or any Subsidiary or other Affiliate thereof as
      if
      such Person were not the Agent hereunder and without any duty to account
      therefor to the Lenders.

    


    10.3 Exculpatory
      Provisions.

    


    The
      Agent
      shall not have any duties or obligations except those expressly set forth herein
      and in the other Credit Documents. Without limiting the generality of the
      foregoing, the Agent:

    


    (a) shall
      not
      be subject to any fiduciary or other implied duties, regardless of whether
      a
      Default has occurred and is continuing;

    


    (b) shall
      not
      have any duty to take any discretionary action or exercise any discretionary
      powers, except discretionary rights and powers expressly contemplated hereby
      or
      by the other Credit Documents that the Agent is required to exercise as directed
      in writing by the Required Lenders (or such other number or percentage of the
      Lenders as shall be expressly provided for herein or in the other Credit
      Documents), provided that the Agent shall not be required to take any action
      that, in its opinion or the opinion of its counsel, may expose the Agent to
      liability or that is contrary to any Credit Document or applicable law;
      and

    


    (c) shall
      not, except as expressly set forth herein and in the other Credit Documents,
      have any duty to disclose, and shall not be liable for the failure to disclose,
      any information relating to the Borrower or any of its Affiliates that is
      communicated to or obtained by the Person serving as the Agent or any of its
      Affiliates in any capacity.

    


    The
      Agent
      shall not be liable for any action taken or not taken by it (i) with the consent
      or at the request of the Required Lenders (or such other number or percentage
      of
      the Lenders as shall be necessary, or as the Agent shall believe in good faith
      shall be necessary, under the circumstances as provided in Sections 11.6 and
      9.2) or (ii) in the absence of its own gross negligence or willful misconduct.
      The Agent shall be deemed not to have knowledge of any Default unless and until
      notice describing such Default is given to the Agent by the Borrower, a Lender
      or the Issuing Lender.

    


    The
      Agent
      shall not be responsible for or have any duty to ascertain or inquire into
      (i)
      any statement, warranty or representation made in or in connection with this
      Credit Agreement or any other Credit Document, (ii) the contents of any
      certificate, report or other document delivered hereunder or thereunder or
      in
      connection herewith or therewith, (iii) the performance or observance of any
      of
      the covenants, agreements or other terms or conditions set forth herein or
      therein or the occurrence of any Default, (iv) the validity, enforceability,
      effectiveness or genuineness of this Credit Agreement, any other Credit Document
      or any other agreement, instrument or document, or the creation, perfection
      or
      priority of any Lien purported to be created by the Collateral Documents, (v)
      the value or the sufficiency of any Collateral, or (v) the satisfaction of
      any
      condition set forth in Section 5 or elsewhere herein, other than to confirm
      receipt of items expressly required to be delivered to the
      Agent.


    
      
        
        

      

      
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    10.4 Reliance
      by Agent.
      

    


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

    


    10.5 Delegation
      of Duties.

    


    The
      Agent
      may perform any and all of its duties and exercise its rights and powers
      hereunder or under any other Credit Document by or through any one or more
      sub-agents appointed by the Agent. The Agent and any such sub-agent may perform
      any and all of its duties and exercise its rights and powers by or through
      their
      respective Related Parties. The exculpatory provisions of this Article shall
      apply to any such sub-agent and to the Related Parties of the Agent and any
      such
      sub-agent, and shall apply to their respective activities in connection with
      the
      syndication of the credit facilities provided for herein as well as activities
      as Agent.

    


    10.6 Resignation
      of Agent.

    


    The
      Agent
      may at any time give notice of its resignation to the Lenders, the Issuing
      Lender and the Borrower. Upon receipt of any such notice of resignation, the
      Required Lenders shall have the right, in consultation with the Borrower, to
      appoint a successor, which shall be a bank with an office in the United States,
      or an Affiliate of any such bank with an office in the United States. If no
      such
      successor shall have been so appointed by the Required Lenders and shall have
      accepted such appointment within 30 days after the retiring Agent gives notice
      of its resignation, then the retiring Agent may on behalf of the Lenders and
      the
      Issuing Lender, appoint a successor Agent meeting the qualifications set forth
      above; provided
      that if
      the Agent shall notify the Borrower and the Lenders that no qualifying Person
      has accepted such appointment, then such resignation shall nonetheless become
      effective in accordance with such notice and (a) the retiring Agent shall be
      discharged from its duties and obligations hereunder and under the other Credit
      Documents (except that in the case of any collateral security held by the Agent
      on behalf of the Lenders or the Issuing Lender under any of the Credit
      Documents, the retiring Agent shall continue to hold such collateral security
      until such time as a successor Agent is appointed) and (b) all payments,
      communications and determinations provided to be made by, to or through the
      Agent shall instead be made by or to each Lender and the Issuing Lender
      directly, until such time as the Required Lenders appoint a successor Agent
      as
      provided for above in this Section. Upon the acceptance of a successor's
      appointment as Agent hereunder, such successor shall succeed to and become
      vested with all of the rights, powers, privileges and duties of the retiring
      (or
      retired) Agent, and the retiring Agent shall be discharged from all of its
      duties and obligations hereunder or under the other Credit Documents (if not
      already discharged therefrom as provided above in this Section). The fees
      payable by the Borrower to a successor Agent shall be the same as those payable
      to its predecessor unless otherwise agreed between the 

    
      
        
        

      

      
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    Borrower
      and such successor. After the retiring Agent's resignation hereunder and under
      the other Credit Documents, the provisions of this Section and Section 11.5
      shall continue in effect for the benefit of such retiring Agent, its sub-agents
      and their respective Related Parties in respect of any actions taken or omitted
      to be taken by any of them while the retiring Agent was acting as
      Agent.

    


    Any
      resignation by Bank of America as Agent pursuant to this Section shall also
      constitute its resignation as Issuing Lender and Swingline Lender. Upon the
      acceptance of a successor's appointment as Agent hereunder, (i) such successor
      shall succeed to and become vested with all of the rights, powers, privileges
      and duties of the retiring Issuing Lender and Swingline Lender, (ii) the
      retiring Issuing Lender and Swingline Lender shall be discharged from all of
      their respective duties and obligations hereunder or under the other Credit
      Documents, and (iii) the successor Issuing Lender shall issue letters of credit
      in substitution for the Letters of Credit, if any, outstanding at the time
      of
      such succession or make other arrangements satisfactory to the retiring Issuing
      Lender to effectively assume the obligations of the retiring Issuing Lender
      with
      respect to such Letters of Credit.

     

    10.7 Non-Reliance
      by Agent and Other Lenders.

    


    Each
      Lender and the Issuing Lender acknowledges that it has, independently and
      without reliance upon the Agent or any other Lender or any of their Related
      Parties and based on such documents and information as it has deemed
      appropriate, made its own credit analysis and decision to enter into this Credit
      Agreement. Each Lender and the Issuing Lender also acknowledges that it will,
      independently and without reliance upon the Agent or any other Lender or any
      of
      their Related Parties and based on such documents and information as it shall
      from time to time deem appropriate, continue to make its own decisions in taking
      or not taking action under or based upon this Credit Agreement, any other Credit
      Document or any related agreement or any document furnished hereunder or
      thereunder.

    


    10.8 No
      Other
      Duties, Etc.

    


    Anything
      herein to the contrary notwithstanding, none of the bookrunners, arrangers,
      syndication agents, documentation agents or co-agents shall have any powers,
      duties or responsibilities under this Credit Agreement or any of the other
      Credit Documents, except in its capacity, as applicable, as the Agent, a Lender
      or the Issuing Lender hereunder.

    


    10.9 Agent
      May
      File Proofs of Claim.

    


    In
      case
      of the pendency of any proceeding under the Bankruptcy Code or any other
      judicial proceeding relative to any Credit Party, the Agent (irrespective of
      whether the principal of any Loan or LOC Obligation shall then be due and
      payable as herein expressed or by declaration or otherwise and irrespective
      of
      whether the Agent shall have made any demand on the Borrower) shall be entitled
      and empowered, by intervention in such proceeding or otherwise.

    


    (a) to
      file
      and prove a claim for the whole amount of the principal and interest owing
      and
      unpaid in respect of the Loans, LOC Obligations and all other Credit Party
      Obligations that are owing and unpaid and to file such other documents as may
      be
      necessary or advisable in order to have the claims of the Lenders, the Issuing
      Lender and the Agent (including any claim for the reasonable compensation,
      expenses, disbursements and advances of the Lenders, the Issuing Lender and
      the
      Agent and their respective agents and counsel and all other amounts due the
      Lenders, the Issuing Lender and the Agent under Sections 3.4 and 11.5(a) allowed
      in such judicial proceeding; and


    
      
        
        

      

      
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    (b) to
      collect and receive any monies 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 and the Issuing Lender to make such payments to the Agent and, if the
      Agent shall consent to the making of such payments directly to the Lenders
      and
      the Issuing Lender, to pay to the Agent any amount due for the reasonable
      compensation, expenses, disbursements and advances of the Agent and its agents
      and counsel, and any other amounts due the Agent under Sections 3.4 and
      11.5(a).

    


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

    


    10.10 Collateral
      and Guaranty Matters.

    


    The
      Lenders and the Issuing Lender irrevocably authorize the Agent, at its option
      and in its discretion,

    


    (a) to
      release any Lien on any property granted to or held by the Agent under any
      Credit Document (i) upon termination of the Commitments and payment in full
      of
      all Credit Party Obligations (other than contingent indemnification obligations)
      and the expiration or termination of all Letters of Credit, (ii) that is sold
      or
      to be sold as part of or in connection with any sale permitted hereunder or
      under any other Credit Document, or (iii) if approved, authorized or ratified
      in
      writing in accordance with Section 11.6; 

    


    (b) to
      release any Guarantor from its Guaranty Obligations if such Person ceases to
      be
      a Subsidiary as a result of a transaction permitted hereunder; and

    


    (c) to
      subordinate any Lien on any property granted to or held by the Agent under
      any
      Credit Document to the holder of any Lien on such property that is permitted
      by
      Section 8.2.

    


    Upon
      request by the Agent at any time, the Required Lenders will confirm in writing
      the Agent's authority to release or subordinate its interest in particular
      types
      or items of property, or to release any Guarantor from its Guaranty Obligations
      pursuant to this Section 10.10. In each case as specified in this Section 10.10,
      the Agent will, at the Borrower's expense, execute and deliver to the applicable
      Credit Party such documents as such Credit Party may reasonably request to
      evidence the release of such item of Collateral from the assignment and security
      interest granted under the Collateral Documents or to subordinate its interest
      in such item, or to release such Guarantor from its Guaranty Obligations, in
      each case in accordance with the terms of the Credit Documents and this Section
      10.10.


    
      
        
        

      

      
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    SECTION
      11

    


    MISCELLANEOUS

    


    11.1 Notices;
      Effectiveness; Electronic Communications.

    


    (a) General.
      Unless
      otherwise expressly provided herein, all notices and other communications
      provided for hereunder shall be in writing (including by facsimile
      transmission). All such written notices shall be mailed certified or registered
      mail, faxed or delivered to the applicable address, facsimile number or (subject
      to subsection (c) below) electronic mail address, and all notices and other
      communications expressly permitted hereunder to be given by telephone shall
      be
      made to the applicable telephone number, as follows:

    


    (i) if
      to the
      Borrower, the Agent, the Issuing Lender or the Swingline Lender, to the address,
      facsimile number, electronic mail address or telephone number specified for
      such
      Person on Schedule
      11.1
      or to
      such other address, facsimile number, electronic mail address or telephone
      number as shall be designated by such party in a notice to the other parties;
      and 

    


    (ii) if
      to any
      other Lender, to the address, facsimile number, electronic mail address or
      telephone number specified in its Administrative Questionnaire or to such other
      address, facsimile number, electronic mail address or telephone number as shall
      be designated by such party in a notice to the Borrower, the Agent, the Issuing
      Lender and the Swingline Lender.

    


    Notices
      sent by hand or overnight courier service, or mailed by certified or registered
      mail, shall be deemed to have been given when received; notices sent by
      facsimile shall be deemed to have been given when sent (except that, if not
      given during normal business hours for the recipient, shall be deemed to have
      been given at the opening of business on the next business day for the
      recipient). Notices delivered through electronic communications to the extent
      provided in subsection (b) below, shall be effective as provided in such
      subsection (b).

    


    (b) Electronic
      Communications.
      Notices
      and other communications to the Lenders hereunder may be delivered or furnished
      by electronic communication (including e mail and Internet or intranet websites)
      pursuant to procedures approved by the Agent, provided
      that the
      foregoing shall not apply to notices to any Lender pursuant to Section 2,
      Section 3.3 and Section 3.7 if such Lender has notified the Agent that it is
      incapable of receiving notices under such Sections by electronic communication.
      The Agent or the Borrower (on behalf of itself and the other Credit Parties)
      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.

    


    (c) Effectiveness
      of Facsimile Documents and Signatures.
      Credit
      Documents may be transmitted and/or signed by facsimile. The effectiveness
      of
      any such documents and signatures shall, subject to applicable Requirements
      of
      Law, have the same force and effect as manually-signed originals and shall
      be
      binding on all Credit Parties, the Agent and the Lenders. The Agent may also
      require that any such documents and signatures be confirmed by a manually-signed
      original thereof; provided,
      however,
      that
      the failure to request or deliver the same shall not limit the effectiveness
      of
      any facsimile document or signature.

    


    (d) Reliance
      by Agent and Lenders.
      The
      Agent and the Lenders shall be entitled to rely and act upon any notices
      (including telephonic Notices of Borrowing and Swingline Loan Notices)


    
      
        
        

      

      
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    purportedly
      given by or on behalf of the Borrower even if (i) such notices were not made
      in
      a manner specified herein, were incomplete or were not preceded or followed
      by
      any other form of notice specified herein, or (ii) the terms thereof, as
      understood by the recipient, varied from any confirmation thereof. The Borrower
      shall indemnify each Agent-Related Person and each Lender from all losses,
      costs, expenses and liabilities resulting from the reliance by such Person
      on
      each notice purportedly given by or on behalf of the Borrower. All telephonic
      notices to and other communications with the Agent may be recorded by the Agent,
      and each of the parties hereto hereby consents to such recording.

    


    11.2 Right
      of
      Set-Off.

    


    In
      addition to any rights now or hereafter granted under applicable law or
      otherwise, and not by way of limitation of any such rights, upon the occurrence
      of an Event of Default and the commencement of remedies described in Section
      9.2, each Lender is authorized at any time and from time to time, without
      presentment, demand, protest or other notice of any kind (all of which rights
      being hereby expressly waived), to set-off and to appropriate and apply any
      and
      all deposits (general or special) and any other Indebtedness at any time held
      or
      owing by such Lender (including, without limitation branches, agencies or
      Affiliates of such Lender wherever located) to or for the credit or the account
      of any Credit Party against obligations and liabilities of such Credit Party
      to
      the Lenders hereunder, under the Notes, the other Credit Documents or otherwise,
      irrespective of whether the Agent or the Lenders shall have made any demand
      hereunder and although such obligations, liabilities or claims, or any of them,
      may be contingent or unmatured, and any such set-off shall be deemed to have
      been made immediately upon the occurrence of an Event of Default even though
      such charge is made or entered on the books of such Lender subsequent thereto.
      The Credit Parties hereby agree that any Person purchasing a participation
      in
      the Loans and Commitments hereunder pursuant to Section 11.3(d) or 3.9 may
      exercise all rights of set-off with respect to its participation interest as
      fully as if such Person were a Lender hereunder.

    


    11.3 Successors
      and Assigns.

    


    (a) Successors
      and Assigns Generally.
      The
      provisions of this Credit Agreement shall be binding upon and inure to the
      benefit of the parties hereto and their respective successors and assigns
      permitted hereby, except that neither the Borrower nor any other Credit Party
      may assign or otherwise transfer any of its rights or obligations hereunder
      without the prior written consent of the Agent and each Lender, and no Lender
      may assign or otherwise transfer any of its rights or obligations hereunder
      except (i) to an assignee in accordance with the provisions of Section 11.3(b),
      (ii) by way of participation in accordance with the provisions of Section
      11.3(d), or (iii) by way of pledge or assignment of a security interest subject
      to the restrictions of Section 11.3(f) (and any other attempted assignment
      or
      transfer by any party hereto shall be null and void). Nothing in this Credit
      Agreement, expressed or implied, shall be construed to confer upon any Person
      (other than the parties hereto, their respective successors and assigns
      permitted hereby, Participants to the extent provided in subsection (d) of
      this
      Section and, to the extent expressly contemplated hereby, the Related Parties
      of
      each of the Agent, the Issuing Lender and the Lenders) any legal or equitable
      right, remedy or claim under or by reason of this Credit Agreement.

    


    (b) Assignments
      by Lenders.
      Any
      Lender may at any time assign to one or more assignees all or a portion of
      its
      rights and obligations under this Credit Agreement (including all or a portion
      of its Commitment(s) and the Loans (including for purposes of this subsection
      (b), participations in LOC Obligations and in Swingline Loans) at the time
      owing
      to it); provided
      that any
      such assignment shall be subject to the following conditions:

    


    (i) Minimum
      Amounts.


    
      
        
        

      

      
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    (A) in
      the
      case of an assignment of the entire remaining amount of the assigning Lender's
      Commitment under the Loans at the time owing to it or in the case of an
      assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum
      amount need be assigned; and

    


    (B) in
      any
      case not described in subsection (b)(i)(A) of this Section, the aggregate amount
      of the Commitment (which for this purpose includes Loans outstanding thereunder)
      or, if the Commitment is not then in effect, the principal outstanding balance
      of the Loans of the assigning Lender subject to each such assignment, determined
      as of the date the Assignment and Assumption with respect to such assignment
      is
      delivered to the Agent or, if "Trade Date" is specified in the Assignment and
      Assumption, as of the Trade Date, shall not be less than $1,000,000, in the
      case
      of any assignment in respect of any Loan, unless each of the Agent and, so
      long
      as no Event of Default has occurred and is continuing, the Borrower otherwise
      consents (each such consent not to be unreasonably withheld or delayed);
      provided, however, that concurrent assignments to members of an Assignee Group
      and concurrent assignments from members of an Assignee Group to a single
      Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group)
      will be treated as a single assignment for purposes of determining whether
      such
      minimum amount has been met;

    


    (C)
       the
      consent of the Issuing Lender (such consent not to be unreasonably withheld
      or
      delayed) shall be required for any assignment that increases the obligation
      of
      the assignee to participate in exposure under one or more Letters of Credit
      (whether or not then outstanding); and

    


    (D)
       the
      consent of the Swingline Lender (such consent not to be unreasonably withheld
      or
      delayed) shall be required for any assignment in respect of the Revolving
      Commitments.

    


    (ii) Proportionate
      Amounts.
      Each
      partial assignment shall be made as an assignment of a proportionate part of
      all
      the assigning Lender's rights and obligations under this Credit Agreement with
      respect to the Loans or the Commitment assigned;

    


    (iii) Required
      Consents.
      No
      consent shall be required for any assignment except to the extent required
      by
      subsection (b)(i)(B) of this Section and, in addition:

    


    (A) the
      consent of the Borrower (such consent not to be unreasonably withheld or
      delayed) shall be required unless (1) an Event of Default has occurred and
      is
      continuing at the time of such assignment or (2) such assignment is to a Lender,
      an Affiliate of a Lender or an Approved Fund; and

    


    (B) the
      consent of the Agent (such consent not to be unreasonably withheld or delayed)
      shall be required for assignments in respect of any Commitment if such
      assignment is to a Person that is not a Lender with a Commitment, an Affiliate
      of such Lender or an Approved Fund with respect to such Lender.

    


    (iv) Assignment
      and Assumption.
      The
      parties to each assignment shall execute and deliver to the Agent an Assignment
      and Assumption, together with a processing and recordation fee in the amount,
      if
      any, required as set forth in Schedule
      11.2;
      provided,
      however,
      that
      the Agent may, in its sole discretion, elect to waive such processing and
      recordation fee in the case of 

    
      
        
        

      

      
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    any
      assignment. The assignee, if it shall not be a Lender, shall deliver to the
      Agent an Administrative Questionnaire.

    


    (v) No
      Assignment to Borrower.
      No such
      assignment shall be made to the Borrower or any of the Borrower's Affiliates
      or
      Subsidiaries.

    


    (vi) No
      Assignment to Natural Persons.
      No such
      assignment shall be made to a natural person.

    


    Subject
      to acceptance and recording thereof by the Agent pursuant to subsection (c)
      of
      this Section, from and after the effective date specified in each Assignment
      and
      Assumption, the assignee thereunder shall be a party to this Credit Agreement
      and, to the extent of the interest assigned by such Assignment and Assumption,
      have the rights and obligations of a Lender under this Credit Agreement, and
      the
      assigning Lender thereunder shall, to the extent of the interest assigned by
      such Assignment and Assumption, be released from its obligations under this
      Credit Agreement (and, in the case of an Assignment and Assumption covering
      all
      of the assigning Lender's rights and obligations under this Credit Agreement,
      such Lender shall cease to be a party hereto but shall continue to be entitled
      to the benefits of Sections 3.10, 3.14, 3.15 and 11.5 with respect to facts
      and
      circumstances occurring prior to the effective date of such assignment). Upon
      request, the Borrower (at its expense) shall execute and deliver a Note to
      the
      assignee Lender. Any assignment or transfer by a Lender of rights or obligations
      under this Credit Agreement that does not comply with this subsection shall
      be
      treated for purposes of this Credit Agreement as a sale by such Lender of a
      participation in such rights and obligations in accordance with Section
      11.3(d).

    


    (c) Register.
      The
      Agent, acting solely for this purpose as an agent of the Borrower, shall
      maintain at the Agent's Office a copy of each Assignment and Assumption
      delivered to it and a register for the recordation of the names and addresses
      of
      the Lenders, and the Commitments of, and principal amounts of the Loans and
      LOC
      Obligations owing to, each Lender pursuant to the terms hereof from time to
      time
      (the "Register").
      The
      entries in the Register shall be conclusive, and the Borrower, the Agent and
      the
      Lenders may treat each Person whose name is recorded in the Register pursuant
      to
      the terms hereof as a Lender hereunder for all purposes of this Credit
      Agreement, notwithstanding notice to the contrary. The Register shall be
      available for inspection by the Borrower and any Lender, at any reasonable
      time
      and from time to time upon reasonable prior notice.

    


    (d) Participations.
      Any
      Lender may at any time, without the consent of, or notice to, the Borrower
      or
      the Agent, sell participations to any Person (other than a natural person or
      the
      Borrower or any of the Borrower's Affiliates or Subsidiaries) (each, a
      "Participant")
      in all
      or a portion of such Lender's rights and/or obligations under this Credit
      Agreement (including all or a portion of its Commitment and/or the Loans
      (including such Lender's participations in LOC Obligations and/or Swingline
      Loans) owing to it); provided
      that (i)
      such Lender's obligations under this Credit Agreement shall remain unchanged,
      (ii) such Lender shall remain solely responsible to the other parties hereto
      for
      the performance of such obligations and (iii) the Borrower, the Agent, the
      Issuing Lender and the Lenders shall continue to deal solely and directly with
      such Lender in connection with such Lender's rights and obligations under this
      Credit Agreement. Any agreement or instrument pursuant to which a Lender sells
      such a participation shall provide that such Lender shall retain the sole right
      to enforce this Credit Agreement and to approve any amendment, modification
      or
      waiver of any provision of this Credit Agreement; provided that such agreement
      or instrument may provide that such Lender will not, without the consent of
      the
      Participant, agree to any amendment, waiver or other modification described
      in
      the first proviso to Section 11.6 that affects such Participant. Subject to
      subsection (e) of this Section, the Borrower agrees that each Participant shall
      be entitled to the benefits of Sections 3.10, 3.14 and 3.15 to the same extent
      as 

    
      
        
        

      

      
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    if
      it
      were a Lender and had acquired its interest by assignment pursuant to Section
      11.3(b). To the extent permitted by law, each Participant also shall be entitled
      to the benefits of Section 11.2 as though it were a Lender, provided such
      Participant agrees to be subject to Section 3.9 as though it were a
      Lender.

    


    (e) Limitations
      upon Participant Rights.
      A
      Participant shall not be entitled to receive any greater payment under Section
      3.10 or 3.14 than the applicable Lender would have been entitled to receive
      with
      respect to the participation sold to such Participant, unless the sale of the
      participation to such Participant is made with the Borrower's prior written
      consent. A Participant that would be a Foreign Lender if it were a Lender shall
      not be entitled to the benefits of Section 3.14 unless the Borrower is notified
      of the participation sold to such Participant and such Participant agrees,
      for
      the benefit of the Borrower, to comply with Section 3.14 as though it were
      a
      Lender.

    


    (f) Certain
      Pledges.
      Any
      Lender may at any time pledge or assign a security interest in all or any
      portion of its rights under this Credit Agreement (including under its Note,
      if
      any) to secure obligations of such Lender, including any pledge or assignment
      to
      secure obligations to a Federal Reserve Bank; provided
      that no
      such pledge or assignment shall release such Lender from any of its obligations
      hereunder or substitute any such pledgee or assignee for such Lender as a party
      hereto.

    


    (g) Electronic
      Execution of Assignments.
      The
      words "execution," "signed," "signature," and words of like import in any
      Assignment and Assumption shall be deemed to include electronic signatures
      or
      the keeping of records in electronic form, each of which shall be of the same
      legal effect, validity or enforceability as a manually executed signature or
      the
      use of a paper-based recordkeeping system, as the case may be, to the extent
      and
      as provided for in any applicable law, including the Federal Electronic
      Signatures in Global and National Commerce Act, or any other similar state
      laws
      based on the Uniform Electronic Transactions Act.

    


    (h) Resignation
      as Issuing Lender or Swingline Lender after Assignment.
      Notwithstanding anything to the contrary contained herein, if at any time Bank
      of America assigns all of its Revolving Commitments and Revolving Loans pursuant
      to Section 11.3(b), Bank of America may, (i) upon 30 days' notice to the
      Borrower and the Lenders, resign as Issuing Lender and/or (ii) upon 30 days'
      notice to the Borrower, resign as Swingline Lender. In the event of any such
      resignation as Issuing Lender or Swingline Lender, the Borrower shall be
      entitled to appoint from among the Lenders a successor Issuing Lender or
      Swingline Lender hereunder; provided,
      however,
      that no
      failure by the Borrower to appoint any such successor shall affect the
      resignation of Bank of America as Issuing Lender or Swingline Lender, as the
      case may be. If Bank of America resigns as Issuing Lender, it shall retain
      all
      the rights, powers, privileges and duties of the Issuing Lender hereunder with
      respect to all Letters of Credit outstanding as of the effective date of its
      resignation as Issuing Lender and all LOC Obligations with respect thereto
      (including the right to require the Lenders to make Base Rate Loans or fund
      risk
      participations in Unreimbursed Amounts pursuant to Section 2.2(c)). If Bank
      of
      America resigns as Swingline Lender, it shall retain all the rights of the
      Swingline Lender provided for hereunder with respect to Swingline Loans made
      by
      it and outstanding as of the effective date of such resignation, including
      the
      right to require the Lenders to make Base Rate Loans or fund risk participations
      in outstanding Swingline Loans pursuant to Section 2.3. Upon the appointment
      of
      a successor Issuing Lender and/or Swingline Lender, (a) such successor shall
      succeed to and become vested with all of the rights, powers, privileges and
      duties of the retiring Issuing Lender or Swingline Lender, as the case may
      be,
      and (b) the successor Issuing Lender shall issue letters of credit in
      substitution for the Letters of Credit, if any, outstanding at the time of
      such
      succession or make other arrangements satisfactory to Bank of America to
      effectively assume the obligations of Bank of America with respect to such
      Letters of Credit.


    
      
        
        

      

      
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    11.4 No
      Waiver; Remedies Cumulative.

    


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

    


    11.5 Payment
      of Expenses; Indemnification.

    


    (a) Attorney
      Costs, Expenses and Taxes.
      The
      Borrower agrees (a) to pay or reimburse the Agent for all costs and expenses
      incurred in connection with the development, preparation, negotiation and
      execution of this Credit Agreement and the other Credit Documents and any
      amendment, waiver, consent or other modification of the provisions hereof and
      thereof (whether or not the transactions contemplated hereby or thereby are
      consummated), and the consummation and administration of the transactions
      contemplated hereby and thereby, including all reasonable fees and expenses
      of
      legal counsel and costs and expenses in connection with the use of Intralinks,
      Inc. or other similar information transmission systems in connection with this
      Credit Agreement, and (b) to pay or reimburse the Agent and each Lender for
      all
      costs and expenses incurred in connection with the enforcement, attempted
      enforcement, or preservation of any rights or remedies under this Credit
      Agreement or the other Credit Documents (including all such costs and expenses
      incurred during any "workout" or restructuring in respect of the Credit Party
      Obligations and during any legal proceeding, including any proceeding under
      the
      Bankruptcy Code or any similar laws), including all reasonable fees and expenses
      of legal counsel. The foregoing costs and expenses shall include all search,
      filing, recording, title insurance and appraisal charges and fees and taxes
      related thereto, and other out-of-pocket expenses incurred by the Agent and
      the
      cost of independent public accountants and other outside experts retained by
      the
      Agent or any Lender. All amounts due under this Section 11.5(a) shall be payable
      within ten Business Days after demand therefor. The agreements in this Section
      shall survive the termination of the Revolving Committed Amount and repayment
      of
      all other Credit Party Obligations.

    


    (b) Indemnification.
      Whether
      or not the transactions contemplated hereby are consummated, the Borrower agrees
      to indemnify and hold harmless each Agent-Related Person, each Lender and their
      respective Affiliates, directors, officers, employees, counsel, trustees,
      advisors, agents and attorneys-in-fact (collectively the "Indemnitees")
      from
      and against any and all liabilities, obligations, losses, damages, penalties,
      claims, demands, actions, judgments, suits, costs, expenses and disbursements
      (including reasonable
      fees and expenses of legal counsel)
      of any
      kind or nature whatsoever which may at any time be imposed on, incurred by
      or
      asserted against any such Indemnitee in any way relating to or arising out
      of or
      in connection with (a) the execution, delivery, enforcement, performance or
      administration of any Credit Document or any other agreement, letter or
      instrument delivered in connection with the transactions contemplated thereby
      or
      the consummation of the transactions contemplated thereby, (b) any Commitment,
      Loan or Letter of Credit or the use or proposed use of the proceeds therefrom
      (including any refusal by the Issuing Lender to honor a demand for payment
      under
      a Letter of Credit if the documents presented in connection with such demand
      do
      not strictly comply with the terms of such Letter of Credit), (c) any actual
      or
      alleged presence or release of Hazardous Materials on or from any property
      currently or formerly owned or operated by the Borrower, any Subsidiary or
      any
      other Credit Party, or any liability under Environmental 

    
      
        
        

      

      
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    Laws
      related in any way to the Borrower, any Subsidiary or any other Credit Party,
      or
      (d) any actual or prospective claim, litigation, investigation or proceeding
      relating to any of the foregoing, whether based on contract, tort or any other
      theory (including any investigation of, preparation for, or defense of any
      pending or threatened claim, investigation, litigation or proceeding) and
      regardless of whether any Indemnitee is a party thereto (all the foregoing,
      collectively, the "Indemnified
      Liabilities");
      provided
      that
      such indemnity shall not, as to any Indemnitee, be available to the extent
      that
      such liabilities, obligations, losses, damages, penalties, claims, demands,
      actions, judgments, suits, costs, expenses or disbursements are determined
      by a
      court of competent jurisdiction by final and nonappealable judgment to have
      resulted from the gross negligence or willful misconduct of such Indemnitee.
      No
      Indemnitee shall be liable for any damages arising from the use by others of
      any
      information or other materials obtained through IntraLinks or other similar
      information transmission systems in connection with this Credit Agreement,
      nor
      shall any Indemnitee have any liability for any indirect, punitive or
      consequential damages relating to this Credit Agreement or any other Credit
      Document or arising out of its activities in connection herewith or therewith
      (whether before or after the Closing Date). All amounts due under this Section
      11.5(b) shall be payable within ten Business Days after demand therefor. The
      agreements in this Section shall survive the resignation of the Agent, the
      replacement of any Lender, the termination of the Commitments and the repayment,
      satisfaction or discharge of all the other Credit Party
      Obligations.

    


    11.6 Amendments,
      Waivers and Consents.

    


    No
      amendment or waiver of any provision of this Credit Agreement or any other
      Credit Document, and no consent to any departure by the Borrower or any other
      Credit Party therefrom, shall be effective unless in writing signed by the
      Required Lenders and the Borrower or the applicable Credit Party, as the case
      may be, and acknowledged by the Agent, and each such waiver or consent shall
      be
      effective only in the specific instance and for the specific purpose for which
      given; provided,
      however,
      that no
      such amendment, waiver or consent shall:

    


    (a) extend
      or
      increase the Commitment of any Lender (or reinstate any Commitment terminated
      pursuant to Section 9.2) without the written consent of such Lender (it being
      understood and agreed that a waiver of any condition precedent set forth in
      Section 5.2 or of any Default or Event of Default or a mandatory reduction
      in
      Commitments is not considered an extension or increase in Commitments of any
      Lender);

    


    (b) postpone
      any date fixed by this Credit Agreement or any other Credit Document for any
      payment of principal (excluding mandatory prepayments), interest, fees or other
      amounts due to the Lenders (or any of them) or any scheduled or mandatory
      reduction of the Revolving Committed Amount hereunder or under any other Credit
      Document without the written consent of each Lender directly affected
      thereby;

    


    (c) reduce
      the principal of, or the rate of interest specified herein on, any Loan or
      LOC
      Borrowing, or (subject to clause (iv) of the final proviso to this Section
      11.6)
      any fees or other amounts payable hereunder or under any other Credit Document
      without the written consent of each Lender directly affected thereby;
provided,
      however,
      that
      only the consent of the Required Lenders shall be necessary (i) to amend Section
      3.1(b) for the purpose of changing the default rate of interest or to waive
      any
      obligation of any Borrower to pay interest or Letter of Credit Fees at the
      default rate of interest specified in Section 3.1(b) or (ii) to amend any
      financial covenant hereunder (or any defined term used therein) even if the
      effect of such amendment would be to reduce the rate of interest on any Loan
      or
      LOC Borrowing or to reduce any fee payable hereunder;


    
      
        
        

      

      
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    (d) change
      Section 3.8 or Section 3.9 in a manner that would alter the pro rata sharing
      of
      payments required thereby without the written consent of each Lender directly
      affected thereby;

    


    (e) change
      any provision of this Section or the definition of "Required Lenders" or any
      other provision hereof specifying the number or percentage of Lenders required
      to amend, waive or otherwise modify any rights hereunder or make any
      determination or grant any consent hereunder without the written consent of
      each
      Lender directly affected thereby; 

    


    (f) except
      in
      connection with an Asset Disposition permitted under Section 8.5, release all
      or
      substantially all of the Collateral without the written consent of each Lender
      directly affected thereby; 

    


    (g) release
      the Borrower or, except in connection with a merger or consolidation permitted
      under Section 8.4 or an Asset Disposition permitted under Section 8.5, all
      or
      substantially all of the Guarantors, from its or their obligations under the
      Credit Documents without the written consent of each Lender directly affected
      thereby;

    


    (h) without
      the consent of Lenders (other than Defaulting Lenders) holding in the aggregate
      at least a majority of the Revolving Commitments (or
      if the
      Revolving Commitments have been terminated, the outstanding Revolving Loans
      (and
      participations in any Swingline Loans and LOC Obligations)), (i)
      waive
      any Default or Event of Default for purposes of Section 5.2 for purposes of
      any
      Revolving Loan borrowing or LOC Borrowing, (ii) amend, change, waive, discharge
      or terminate Sections 2.1(a) and (e), 2.2, 2.3 or 2.5(b)(i) or any term,
      covenant or agreement contained in Section 8 or Section 9 or (iii) amend
      or
      change any provision of this Section 11.6(h);

    


    (i) without
      the consent of Lenders (other than Defaulting Lenders) holding in the aggregate
      at least a majority of the outstanding Term Loan (and participations therein),
      (A) amend, change, waive, discharge or terminate Section 3.3(b)(vi) so
      as to alter the manner of application of proceeds of any mandatory prepayment
      required by Section 3.3(b)(ii), (iii), (iv) or (v) hereof or (B) amend
      or change
      any provision of this Section 11.6(i);

    


    (j) without
      the consent of Lenders (other than Defaulting Lenders) holding in the aggregate
      at least a majority of the outstanding Incremental Term Loan (and participations
      therein), (A) amend, change, waive, discharge or terminate
      Section 3.3(b)(vi) so as to alter the manner of application of proceeds of
      any mandatory prepayment required by Section 3.3(b)(ii), (iii), (iv) or (v)
      hereof or (B) amend or change
      any provision of this Section 11.6(j);
      or

    


    and,
      provided further,
      that
      (i) no amendment, waiver or consent shall, unless in writing and signed by
      the
      Issuing Lender in addition to the Lenders required above, affect the rights
      or
      duties of the Issuing Lender under this Credit Agreement or any Letter of Credit
      Application relating to any Letter of Credit issued or to be issued by it;
      (ii)
      no amendment, waiver or consent shall, unless in writing and signed by the
      Swingline Lender in addition to the Lenders required above, affect the rights
      or
      duties of the Swingline Lender under this Credit Agreement; (iii) no amendment,
      waiver or consent shall, unless in writing and signed by the Agent in addition
      to the Lenders required above, affect the rights or duties of the Agent under
      this Credit Agreement or any other Credit Document; and (iv) the Fee Letter
      may
      be amended, or rights or privileges thereunder waived, in a writing executed
      only by the parties thereto. Notwithstanding anything to the contrary herein,
      no
      Defaulting Lender shall have any right to approve or disapprove any amendment,
      waiver or consent hereunder, except that the Commitment of such Lender may
      not
      be increased or extended without the consent of such Lender.


    
      
        
        

      

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

    


    11.7 Counterparts.

    


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

    


    11.8 Headings.

    


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

    


    11.9 USA
      PATRIOT Act Notice.

    


    Each
      Lender and the Agent (for itself and not on behalf of any Lender) hereby
      notifies the Borrower 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 the Borrower,
      which information includes the name and address of the Borrower and other
      information that will allow such Lender or the Agent, as applicable, to identify
      the Borrower in accordance with the Act.

    


    11.10 Survival
      of Indemnification and Representations and Warranties.

    


    All
      indemnities set forth herein and all representations
      and warranties made hereunder and in any other Credit Document or other document
      delivered pursuant hereto or thereto or in connection herewith or therewith
      shall
      survive the execution and delivery of this Credit Agreement, the making of
      the
      Loans, the issuance of the Letters of Credit, the repayment of the Loans, LOC
      Obligations and other obligations and the termination of the Commitments
      hereunder. Such
      representations and warranties have been or will be relied upon by the Agent
      and
      each Lender, regardless of any investigation made by the Agent or any Lender
      or
      on their behalf and notwithstanding that the Agent or any Lender may have had
      notice or knowledge of any Default or Event of Default at the time of any
      extension of credit hereunder, and shall continue in full force and effect
      as
      long as any Loan or any other Credit Party Obligation hereunder shall remain
      unpaid or unsatisfied or any Letter of Credit shall remain
      outstanding.

    


    11.11 Governing
      Law; Venue.

    


    (a) THIS
      CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS
      OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED
      AND
      INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Any legal
      action or proceeding with respect to this Credit Agreement or any other Credit
      Document may be brought in the courts of the State of New York sitting in New
      York City and the United States District Court of the Southern District, and
      any
      appellate court from any thereof, and, by execution and delivery of this Credit
      Agreement, each Credit Party hereby irrevocably 

    
      
        
        

      

      
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    accepts
      for itself and in respect of its property, generally and unconditionally, the
      jurisdiction of such courts. Each Credit Party further irrevocably consents
      to
      the service of process out of any of the aforementioned courts in any such
      action or proceeding by the mailing of copies thereof by registered or certified
      mail, postage prepaid, to it at the address for notices pursuant to Section
      11.1, such service to become effective 30 days after such mailing. Nothing
      herein shall affect the right of a Lender to serve process in any other manner
      permitted by law or to commence legal proceedings or to otherwise proceed
      against a Credit Party in any other jurisdiction.

    


    (b) Each
      Credit Party hereby irrevocably waives any objection which it may now or
      hereafter have to the laying of venue of any of the aforesaid actions or
      proceedings arising out of or in connection with this Credit Agreement or any
      other Credit Document brought in the courts referred to in subsection (a) hereof
      and hereby further irrevocably waives and agrees not to plead or claim in any
      such court that any such action or proceeding brought in any such court has
      been
      brought in an inconvenient forum.

    


    11.12 Waiver
      of
      Jury Trial.

    


    EACH
      PARTY TO THIS CREDIT
      AGREEMENT
      HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
      OR CAUSE OF ACTION ARISING UNDER ANY CREDIT
      DOCUMENT
      OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE
      PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY CREDIT
      DOCUMENT,
      OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR
      HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND
      EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
      CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY
      PARTY TO THIS CREDIT
      AGREEMENT
      MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS
      WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF
      THEIR
      RIGHT TO TRIAL BY JURY.

    


    11.13 Time.

    


    All
      references to time herein shall be references to Eastern Standard Time or
      Eastern Daylight Time, as the case may be, unless specified
      otherwise.

    


    11.14 Severability.

    


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

    


    11.15 Entirety.

    


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


    
      
        
        

      

      
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    11.16 Binding
      Effect; Further Assurances.

    


    This
      Credit Agreement shall become effective at such time when all of the conditions
      set forth in Section 5.1 have been satisfied or waived by the Lenders and it
      shall have been executed by the Borrower, the Guarantors and the Agent, and
      the
      Agent shall have received copies hereof (telefaxed or otherwise) which, when
      taken together, bear the signatures of each Lender, and thereafter this Credit
      Agreement shall be binding upon and inure to the benefit of the Borrower, the
      Guarantors, the Agent and each Lender and their respective successors and
      assigns. The Borrower further agrees, upon the request of the Agent and/or
      the
      Required Lenders, to promptly take such actions, as reasonably requested, as
      are
      appropriate to carry out the intent of this Credit Agreement and the other
      Credit Documents, including, but not limited to, such actions as are reasonably
      necessary to ensure that the Agent, for the benefit of the Lenders, has a
      perfected security interest in all Collateral securing the Credit Party
      Obligations, subject to no Liens other than Permitted Liens.

    


    11.17 Designated
      Senior Indebtedness.

    


    The
      Borrower hereby designates this Credit Agreement and the Credit Party
      Obligations evidenced hereby as "Designated Senior Indebtedness" (as defined
      in
      the Subordinated Indenture) for all purposes of the Subordinated
      Indenture.

    


    11.18 Treatment
      of Certain Information; Confidentiality.

    


    Each
      of
      the Agent, the Issuing Lender and the Lenders agrees to maintain the
      confidentiality of the Information (as defined below), except that Information
      may be disclosed (a) to its Affiliates and to its and its Affiliates' respective
      partners, directors, officers, employees, agents, advisors and representatives
      (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 regulatory
      authority purporting to have jurisdiction over it (including any self-regulatory
      authority, such as the National Association of Insurance Commissioners), (c)
      to
      the extent required by applicable laws or regulations or by any subpoena or
      similar legal process, (d) to any other party hereto, (e) in connection with
      the
      exercise of any remedies hereunder or under any other Credit Document or any
      action or proceeding relating to this Credit Agreement or any other Credit
      Document or the enforcement of rights hereunder or thereunder, (f) subject
      to an
      agreement containing provisions substantially the same as those of this Section,
      to (i) any assignee of or Participant in, or any prospective assignee of or
      Participant in, any of its rights or obligations under this Credit Agreement,
      (ii) any actual or prospective counterparty (or its advisors) to any swap or
      derivative transaction relating to the Borrower and its obligations or (iii)
      any
      pledgee under Section 11.3(f), (g) with the consent of the Borrower or (h)
      to
      the extent such Information (i) becomes publicly available other than as a
      result of a breach of this Section or (ii) becomes available to the Agent,
      any
      Lender, the Issuing Lender or any of their respective Affiliates on a
      nonconfidential basis from a source other than the Borrower.

    


    For
      purposes of this Section, "Information" means all information received from
      any
      Credit Party or any Subsidiary thereof relating to any Credit Party or any
      Subsidiary thereof or their respective businesses, other than any such
      information that is available to the Agent, the Issuing Lender or any Lender
      on
      a nonconfidential basis prior to disclosure by any Credit Party or any
      Subsidiary thereof, provided that, in the case of information received from
      a
      Credit Party or any such Subsidiary after the date hereof, such information
      is
      clearly identified at the time of delivery as confidential. Any Person required
      to maintain the confidentiality of Information as provided in this Section
      shall
      be considered to have complied with its obligation to do so if such Person
      has
      exercised the same degree of care to 

    
      
        
        

      

      
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    maintain
      the confidentiality of such Information as such Person would accord to its
      own
      confidential information.

    


    Each
      of
      the Agent, the Issuing Lender and the Lenders acknowledges that (a) the
      Information may include material non-public information concerning the Borrower
      or a Subsidiary, as the case may be, (b) it has developed compliance procedures
      regarding the use of material non-public information and (c) it will handle
      such
      material non-public information in accordance with applicable Law, including
      Federal and state securities Laws.

    


    11.19 No
      Advisory or Fiduciary Responsibility.

    


    In
      connection with all aspects of each transaction contemplated hereby, the
      Borrower acknowledges and agrees that: (i) the credit facility provided for
      hereunder and any related arranging or other services in connection therewith
      (including in connection with any amendment, waiver or other modification hereof
      or of any other Credit Document) are an arm's-length commercial transaction
      between the Borrower and its Affiliates, on the one hand, and the Agent and
      the
      Arranger, on the other hand, and the Borrower is capable of evaluating and
      understanding and understands and accepts the terms, risks and conditions of
      the
      transactions contemplated hereby and by the other Credit Documents (including
      any amendment, waiver or other modification hereof or thereof); (ii) in
      connection with the process leading to such transaction, the Agent and the
      Arranger each is and has been acting solely as a principal and is not the
      financial advisor, agent or fiduciary, for the Borrower or any of its
      Affiliates, stockholders, creditors or employees or any other Person; (iii)
      neither the Agent nor the Arranger has assumed or will assume an advisory,
      agency or fiduciary responsibility in favor of the Borrower with respect to
      any
      of the transactions contemplated hereby or the process leading thereto,
      including with respect to any amendment, waiver or other modification hereof
      or
      of any other Credit Document (irrespective of whether the Agent or the Arranger
      has advised or is currently advising the Borrower or any of its Affiliates
      on
      other matters) and neither the Agent nor the Arranger has any obligation to
      the
      Borrower or any of its Affiliates with respect to the transactions contemplated
      hereby except those obligations expressly set forth herein and in the other
      Credit Documents; (iv) the Agent and the Arranger and their respective
      Affiliates may be engaged in a broad range of transactions that involve
      interests that differ from those of the Borrower and its Affiliates, and neither
      the Agent nor the Arranger has any obligation to disclose any of such interests
      by virtue of any advisory, agency or fiduciary relationship; and (v) the Agent
      and the Arranger have not provided and will not provide any legal, accounting,
      regulatory or tax advice with respect to any of the transactions contemplated
      hereby (including any amendment, waiver or other modification hereof or of
      any
      other Credit Document) and the Borrower has consulted its own legal, accounting,
      regulatory and tax advisors to the extent it has deemed appropriate. The
      Borrower hereby waives and releases, to the fullest extent permitted by law,
      any
      claims that it may have against the Agent and the Arranger with respect to
      any
      breach or alleged breach of agency or fiduciary duty.

    


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