Exhibit 10.1


 


[EXECUTION COPY]


 


AMENDED AND RESTATED CREDIT AGREEMENT,


 


dated as of August 9, 2005,


 


(amending and restating the Credit Agreement, dated as of August 15,
2003)


 


among


 


REDDY ICE GROUP, INC.,


as the Borrower,


 


VARIOUS FINANCIAL INSTITUTIONS AND OTHER PERSONS 

FROM TIME TO TIME PARTIES HERETO,

as the Lenders,


 


CREDIT SUISSE,

Cayman Islands Branch,

as the Administrative Agent,



and


 


BEAR STEARNS CORPORATE LENDING INC.,

and

LEHMAN COMMERCIAL PAPER INC.,

as the Co-Documentation Agents,


 


and


 


CIBC WORLD MARKETS CORP.,

as the Syndication Agent


 










 


CIBC WORLD MARKETS CORP.,

BEAR, STEARNS & CO. INC.,

CREDIT SUISSE,


Cayman Islands Branch, and

LEHMAN BROTHERS INC.,


 


as Co-Lead Arrangers and Co-Bookrunners.


 





















 


TABLE OF CONTENTS


 


 


	
  ARTICLE I

  	
  DEFINITIONS AND ACCOUNTING TERMS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.1.

  	
  Defined Terms

  	
   

  
	
  SECTION 1.2.

  	
  Use of Defined Terms

  	
   

  
	
  SECTION 1.3.

  	
  Cross-References

  	
   

  
	
  SECTION 1.4.

  	
  Accounting and Financial
  Determinations

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  COMMITMENTS, BORROWING AND
  ISSUANCE PROCEDURES, NOTES AND LETTERS OF CREDIT

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.1.

  	
  Commitments

  	
   

  
	
  SECTION 2.2.

  	
  Reductions in Commitment Amounts

  	
   

  
	
  SECTION 2.3.

  	
  Borrowing Procedures

  	
   

  
	
  SECTION 2.4.

  	
  Continuation and Conversion
  Elections

  	
   

  
	
  SECTION 2.5.

  	
  Funding

  	
   

  
	
  SECTION 2.6.

  	
  Issuance Procedures

  	
   

  
	
  SECTION 2.7.

  	
  Register; Notes

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  REPAYMENTS, PREPAYMENTS,
  INTEREST AND FEES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.1.

  	
  Repayments and Prepayments;
  Application

  	
   

  
	
  SECTION 3.2.

  	
  Interest Provisions

  	
   

  
	
  SECTION 3.3.

  	
  Fees

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  CERTAIN LIBO RATE AND
  OTHER PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.1.

  	
  LIBO Rate Lending Unlawful

  	
   

  
	
  SECTION 4.2.

  	
  Deposits Unavailable

  	
   

  
	
  SECTION 4.3.

  	
  Increased LIBO Rate Loan Costs,
  etc.

  	
   

  
	
  SECTION 4.4.

  	
  Funding Losses

  	
   

  
	
  SECTION 4.5.

  	
  Increased Capital Costs

  	
   

  
	
  SECTION 4.6.

  	
  Taxes

  	
   

  
	
  SECTION 4.7.

  	
  Payments, Computations, etc.

  	
   

  
	
  SECTION 4.8.

  	
  Sharing of Payments

  	
   

  
	
  SECTION 4.9.

  	
  Setoff

  	
   

  
	
  SECTION 4.10.

  	
  Replacement of Lenders

  	
   

  
	
  SECTION 4.11.

  	
  Mitigation of Claims

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  CONDITIONS TO EFFECTIVENESS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.1.

  	
  Initial Credit Extension

  	
   

  
	
  SECTION 5.2.

  	
  All Credit Extensions

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  REPRESENTATIONS AND
  WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.1.

  	
  Organization, etc.

  	
   

  
	
  SECTION 6.2.

  	
  Due Authorization, Non-Contravention,
  etc.

  	
   

  
	
  SECTION 6.3.

  	
  Government Approval, Regulation,
  etc.

  	
   

  
	
  SECTION 6.4.

  	
  Validity, etc.

  	
   

  



 





















 


	
  SECTION 6.5.

  	
  Financial Information

  	
   

  
	
  SECTION 6.6.

  	
  No Material Adverse Change;
  Solvency

  	
   

  
	
  SECTION 6.7.

  	
  Litigation, Labor Controversies,
  etc.

  	
   

  
	
  SECTION 6.8.

  	
  Subsidiaries

  	
   

  
	
  SECTION 6.9.

  	
  Ownership of Properties

  	
   

  
	
  SECTION 6.10.

  	
  Taxes

  	
   

  
	
  SECTION 6.11.

  	
  Pension and Welfare Plans

  	
   

  
	
  SECTION 6.12.

  	
  Environmental Warranties

  	
   

  
	
  SECTION 6.13.

  	
  Accuracy of Information

  	
   

  
	
  SECTION 6.14.

  	
  Regulations T, U and X

  	
   

  
	
  SECTION 6.15.

  	
  Absence of Any Undisclosed
  Liabilities

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7.1.

  	
  Affirmative Covenants

  	
   

  
	
  SECTION 7.2.

  	
  Negative Covenants

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  EVENTS OF DEFAULT

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.1.

  	
  Listing of Events of Default

  	
   

  
	
  SECTION 8.2.

  	
  Action if Bankruptcy

  	
   

  
	
  SECTION 8.3.

  	
  Action if Other Event of Default

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  THE ADMINISTRATIVE AGENT

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9.1.

  	
  Actions

  	
   

  
	
  SECTION 9.2.

  	
  Funding Reliance, etc.

  	
   

  
	
  SECTION 9.3.

  	
  Exculpation

  	
   

  
	
  SECTION 9.4.

  	
  Successor

  	
   

  
	
  SECTION 9.5.

  	
  Loans by Credit Suisse or any
  Successor Administrative Agent

  	
   

  
	
  SECTION 9.6.

  	
  Credit Decisions

  	
   

  
	
  SECTION 9.7.

  	
  Copies, etc.

  	
   

  
	
  SECTION 9.8.

  	
  Reliance by Administrative Agent

  	
   

  
	
  SECTION 9.9.

  	
  Defaults

  	
   

  
	
  SECTION 9.10.

  	
  Syndication Agent,
  Co-Documentation Agents

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  MISCELLANEOUS PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.1.

  	
  Waivers, Amendments, etc.

  	
   

  
	
  SECTION 10.2.

  	
  Notices; Time

  	
   

  
	
  SECTION 10.3.

  	
  Payment of Costs and Expenses

  	
   

  
	
  SECTION 10.4.

  	
  Indemnification

  	
   

  
	
  SECTION 10.5.

  	
  Survival

  	
   

  
	
  SECTION 10.6.

  	
  Severability

  	
   

  
	
  SECTION 10.7.

  	
  Headings

  	
   

  
	
  SECTION 10.8.

  	
  Execution in Counterparts,
  Effectiveness, etc.

  	
   

  
	
  SECTION 10.9.

  	
  Governing Law; Entire Agreement

  	
   

  



 


ii





















 


	
  SECTION 10.10.

  	
  Successors and Assigns

  	
   

  
	
  SECTION 10.11.

  	
  Sale and Transfer of Credit
  Extensions; Participations in Credit Extensions

  	
   

  
	
  SECTION 10.12.

  	
  Other Transactions

  	
   

  
	
  SECTION 10.13.

  	
  Forum Selection and Consent to
  Jurisdiction

  	
   

  
	
  SECTION 10.14.

  	
  Waiver of Jury Trial

  	
   

  
	
  SECTION 10.15.

  	
  Limitation on Interest

  	
   

  
	
  SECTION 10.16.

  	
  Confidentiality

  	
   

  
	
  SECTION 10.17.

  	
  USA PATRIOT Act Notice

  	
   

  
	
  SECTION 10.18.

  	
  Effect of Amendment and
  Restatement of the Existing Credit Agreement

  	
   

  



 


iii





















 


	
  SCHEDULE I

  	
  -

  	
  Disclosure
  Schedule

  
	
  SCHEDULE II

  	
  -

  	
  Percentages;
  LIBOR Office; Domestic Office

  
	
   

  	
   

  	
   

  
	
  EXHIBIT A-1

  	
  -

  	
  Form of
  Revolving Note

  
	
  EXHIBIT A-2

  	
  -

  	
  Form of
  Term Note

  
	
  EXHIBIT A-3

  	
  -

  	
  Form of
  Swing Line Note

  
	
  EXHIBIT B-1

  	
  -

  	
  Form of
  Borrowing Request

  
	
  EXHIBIT B-2

  	
  -

  	
  Form of
  Issuance Request

  
	
  EXHIBIT C

  	
  -

  	
  Form of
  Continuation/Conversion Notice

  
	
  EXHIBIT D

  	
  -

  	
  Form of
  Lender Assignment Agreement

  
	
  EXHIBIT E

  	
  -

  	
  Form of
  Compliance Certificate

  
	
  EXHIBIT F

  	
  -

  	
  Form of
  Parent Guaranty and Pledge Agreement

  
	
  EXHIBIT G

  	
  -

  	
  Conformed
  Copy of Subsidiary Guaranty

  
	
  EXHIBIT H

  	
  -

  	
  Conformed
  Copy of Borrower Pledge and Security Agreement

  
	
  EXHIBIT I

  	
  -

  	
  Conformed
  Copy of Subsidiary Pledge and Security Agreement

  
	
  EXHIBIT J

  	
  -

  	
  Form of
  Amendment Effective Date Certificate

  
	
  EXHIBIT K

  	
  -

  	
  Form of
  Solvency Certificate

  
	
  EXHIBIT L

  	
  -

  	
  Form of
  Affirmation and Consent

  



 


iv





















 


AMENDED AND RESTATED CREDIT AGREEMENT


 


THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as
of August 9, 2005, is among REDDY ICE GROUP, INC., a Delaware corporation
(the “Borrower”), the various financial institutions and other Persons
from time to time parties hereto (collectively, the “Lenders”), CREDIT
SUISSE, Cayman Islands Branch (“Credit Suisse”), as the administrative
agent for the Lenders (in such capacity, the “Administrative Agent”),
CIBC WORLD MARKETS CORP. (“CIBC World Markets”), as the syndication
agent for the Lenders (in such capacity, the “Syndication Agent”), LEHMAN COMMERCIAL PAPER INC. (“Lehman
Commercial Paper”) and BEAR STEARNS CORPORATE LENDING INC., as the
co-documentation agents, and CIBC WORLD MARKETS, BEAR, STEARNS & CO.
INC. (“Bear Stearns”), CREDIT SUISSE and LEHMAN BROTHERS INC. (“Lehman”),
as the co-lead arrangers and joint bookrunners (collectively, in such
capacities, the “Lead Arrangers”).


 


W  I  T  N  E  S
S  E  T  H:


 


WHEREAS, pursuant to the Credit Agreement, dated as of
August 15, 2003 (as amended, supplemented, amended and restated or
otherwise modified prior to the date hereof, the “Existing Credit Agreement”),
among the Borrower, the lenders party thereto (the “Existing Lenders”),
Credit Suisse, as administrative agent, and the other agents, the Existing
Lenders committed to extend to the Borrower a $35,000,000 revolving credit
facility to make revolving loans (the “Existing Revolving Loans”), (such
term and each other capitalized term used but not defined in the preamble and
the recitals having the meanings provided in Section 1.1), and a
$180,000,000 term loan facility to make term loans, $171,850,000 of which are
outstanding on the Amendment Effective Date (the “Existing Term Loans”,
and collectively with the Existing Revolving Loans, the “Existing Loans”);


 


WHEREAS, the parties hereto wish to amend and restate
the Existing Credit Agreement in its entirety on the Amendment Effective Date
to, among other things, provide for Loans to the Borrower in an amount equal to
the applicable Commitment Amount on and subject to the terms and conditions of
this Agreement;


 


WHEREAS, in connection with the Transaction (defined
below) and the ongoing working capital and general corporate needs of the
Borrower:


 


(a) 
Parent intends to issue on the Amendment Effective Date Capital Securities
through a primary offering raising gross proceeds of not less than $110,000,000
(the “Planned IPO”);


 


(b) 
the Borrower and Parent will use the proceeds of new Loans made hereunder on
the Amendment Effective Date and net proceeds of the Planned IPO received by
Parent to:


 


(i) 
refinance the Existing Loans outstanding on the Amendment Effective Date (the “Refinancing”);


 





















 


(ii) 
acquire, redeem or repay all but approximately $40,000 in principal amount of
the outstanding Subordinated Notes on the Amendment Effective Date (the “Subordinated
Note Payment”) and amend the indenture governing the Subordinated Notes
(provided that while such Subordinated Notes will be accepted for payment on
the Amendment Effective Date, they may not be fully redeemed until the next
Business Day);


 


(iii) 
receive the consent to certain amendments to the indenture governing the Parent
Notes from not less than a majority of the holders of the outstanding Parent
Notes on or after the Amendment Effective Date (the “Parent Notes Consent”);
and


 


(iv) 
pay cash fees (including the Monitoring Agreement Buyout Payment), transaction
bonuses and expenses associated with the Planned IPO, the Refinancing and the
Subordinated Note Payment in an amount not to exceed $50,000,000 (the “Expense
Payments”; and collectively with the Planned IPO, the Refinancing, the
Subordinated Note Payment and the Parent Notes Consent, the “Transaction”).


 


WHEREAS, the Borrower has requested that the Existing
Credit Agreement be amended and restated in its entirety to become effective
and binding on the Borrower pursuant to the terms of this Agreement, and the
Lenders (including certain of the Existing Lenders) have agreed (subject to the
terms of this Agreement) to amend and restate the Existing Credit Agreement in
its entirety to read as set forth in this Agreement, and it has been agreed by
the parties to the Existing Credit Agreement that the Existing Loans that are
not being repaid and other “Obligations” (under, and as defined in, the Existing
Credit Agreement) shall be governed by and deemed to be outstanding under this
Agreement with the intent that the terms of this Agreement shall supersede the
terms of the Existing Credit Agreement (each of which shall hereafter have no
further effect upon the parties thereto); provided that any Rate
Protection Agreements with any one or more Existing Lenders (or their
respective Affiliates) shall continue unamended and in full force and effect;
and


 


WHEREAS, all Obligations are and shall continue to be
secured by all collateral on which a Lien is granted to the Administrative
Agent pursuant to any Loan Document;


 


NOW, THEREFORE, the parties hereto hereby agree to
amend and restate the Existing Credit Agreement, and the Existing Credit
Agreement is hereby amended and restated in its entirety as follows:


 


ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS


 


SECTION 1.1. 
Defined Terms.  The
following terms (whether or not underscored) when used in this Agreement,
including its preamble and recitals, shall, except where the context


 


2





















 


otherwise
requires, have the following meanings (such meanings to be equally applicable
to the singular and plural forms thereof):


 


“Administrative Agent” is defined in the preamble
and includes each other Person appointed as the successor Administrative Agent
pursuant to Section 9.4.


 


“Affected Lender” is defined in Section 4.10.


 


“Affiliate” of any Person means any other
Person which, directly or indirectly, controls, is controlled by or is under
common control with such Person.  “Control”
of a Person means the power, directly or indirectly, (a) to vote 10% or
more of the Capital Securities (on a fully diluted basis) of such Person having
ordinary voting power for the election of directors, managing members or
general partners (as applicable) or (b) to direct or cause the direction
of the management and policies of such Person (whether by contract or
otherwise).


 


“Affirmation and Consent” means the Affirmation
and Consent, dated as of the Amendment Effective Date, among each Subsidiary
Guarantor and the Administrative Agent substantially in the form of Exhibit L
hereto.


 


“Aggregate Initial Term Loan Amount” is defined
in clause (b) of Section 2.1.3.


 


“Agreement” means, on any date, the Existing
Credit Agreement as amended and restated on the Amendment Effective Date and as
the same may thereafter from time to time be further amended, supplemented,
amended and restated or otherwise modified and in effect on such date.


 


“Alternate Base Rate” means, on any date and
with respect to all Base Rate Loans, a fluctuating rate of interest per annum
equal to the higher of (a) the Base Rate in effect on such day and (b) the
Federal Funds Rate in effect on such day plus 1⁄2 of 1%.  Changes in the rate of interest on that
portion of any Loans maintained as Base Rate Loans will take effect
simultaneously with each change in the Alternate Base Rate.  The Administrative Agent will give notice
promptly to the Borrower and the Lenders of changes in the Alternate Base Rate;
provided that the failure to give such notice shall not affect the
Alternate Base Rate in effect after such change.


 


“Amendment Effective Date” means the date this
Agreement becomes effective pursuant to Section 10.8 which is
expected to be on August 12, 2005.


 


“Amendment Effective Date Certificate” means
the certificate executed and delivered by an Authorized Officer of the Borrower
pursuant to the terms of this Agreement, substantially in the form of Exhibit J
hereto.


 


“Annualized Basis” means, (a) with respect
to the end of the first Fiscal Quarter of the Borrower ending after the
Amendment Effective Date, the applicable amount for such Fiscal Quarter
multiplied by four, (b) with respect to the second Fiscal Quarter of the
Borrower ending after the Amendment Effective Date, the applicable amount for
such Fiscal Quarter and the immediately preceding Fiscal Quarter multiplied by
two and (c) with respect to the third Fiscal Quarter of the Borrower
ending after the Amendment Effective Date, the applicable amount for


 


3





















 


such Fiscal Quarter and
the immediately preceding two Fiscal Quarters multiplied by one and one-third; provided
that such applicable amount shall be determined on a pro  forma
basis as if the Transaction was completed on July 1, 2005.


 


“Applicable Margin” means:


 


(a)           with respect to Initial Term Loans,
0.75% for Initial Term Loans maintained as Base Rate Loans and 1.75% for
Initial Term Loans maintained as LIBO Rate Loans; provided that in the
event that the Borrower incurs an Incremental Term Loan and such Incremental
Term Loan (i) (A) matures on or before the one year anniversary of
the Stated Maturity Date for Initial Term Loans and (B) has a higher
Applicable Margin than the Applicable Margin in effect at such time for the
Initial Term Loans, the Applicable Margin in respect of outstanding Initial
Term Loans will automatically be increased to match the Applicable Margin of
such Incremental Term Loans or (ii) (A) matures after the one year
anniversary of the Stated Maturity Date for Initial Term Loans and (B) has
an Applicable Margin that is more than 0.25% higher than the Applicable Margin
in effect at such time for the Initial Term Loans, then the Applicable Margin
in effect at such time in respect of outstanding Initial Term Loans will
automatically be increased by an amount equal to (1) the Applicable Margin
for such Incremental Term Loan less (2) the Applicable Margin then
in effect for the Initial Term Loans less (3) 0.25%;


 


(b)           with respect to Incremental Term
Loans, the rate per annum agreed by the Borrower and the Lenders that have
agreed to provide the Incremental Term Loans; and


 


(c)           with respect to Revolving Loans,
0.75% for Revolving Loans maintained as Base Rate Loans and 1.75% for Revolving
Loans maintained as LIBO Rate Loans.


 


“Approved Fund” means any Person (other than a
natural Person) that (a) 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, and (b) is administered,
advised or managed by a Lender, an Affiliate of a Lender or an entity or an
Affiliate of an entity that administers, advises or manages a Lender.


 


“Asset Swap” means a
Disposition of assets in exchange for assets of a similar nature and to be used
by the Borrower or a Subsidiary in accordance with Section 7.2.1,
or a combination of such assets and cash or cash equivalents, in each case
having a Fair Market Value comparable to the Fair Market Value of the assets
Disposed.


 


“Audited Financial
Statements” is defined in clause (b) of Section 7.1.1.


 


“Authorized Officer” means, relative to any
Obligor, those of its officers, general partners or managing members (as
applicable) whose signatures and incumbency shall have been certified to the
Administrative Agent, the Lenders and the Issuers pursuant to Section 5.1.1.


 


“Available Cash” means, for any Fiscal Quarter,
for the Borrower and its Subsidiaries, the sum (which may be negative) of:


 


4





















 


(a)           EBITDA for such Fiscal Quarter;


 


plus


 


(b)           to the extent not included in Net
Income used in determining such EBITDA, the cash amount realized in respect of
extraordinary, non-recurring or unusual gains;


 


minus


 


(c)           the sum of:


 


(i)  to the extent
included in or added to Net Income in determining such EBITDA, (A) Interest
Expense actually paid in cash by the Borrower or such Subsidiary, (B) income
Taxes actually paid in cash, (C) the cash cost of any extraordinary,
non-recurring or unusual losses and (D) payments made in cash on account
of non-cash losses or non-cash charges expensed, in each case, during such
Fiscal Quarter;


 


(ii)  Capital
Expenditures made during such Fiscal Quarter, excluding any Capital Expenditures
financed with the proceeds (A) of Indebtedness permitted hereunder and
identified pursuant to clause (c) of Section 7.1.1 as
having been applied to finance Capital Expenditures (other than any Capital
Expenditures financed with the proceeds of Revolving Loans and Swing Line
Loans), (B) from sales of assets permitted hereunder or (C) received
as a result of Casualty Events;


 


(iii)  cash
consideration paid for Permitted Acquisitions during such Fiscal Quarter,
excluding any Permitted Acquisitions financed with the proceeds (A) of
Indebtedness permitted hereunder and identified pursuant to clause (c) of
Section 7.1.1 as having been applied to finance Permitted
Acquisitions, (B) from sales of assets permitted hereunder or (C) received
as a result of Casualty Events; and


 


(iv)  payments and
prepayments of principal of such Person’s Indebtedness made during such Fiscal
Quarter (other than prepayments of Revolving Loans, Swing Line Loans or any
Indebtedness repaid in connection with the Transaction), other than to the
extent funded from the incurrence of Indebtedness (other than Revolving Loans)
otherwise permitted hereunder.


 


“Base Rate” means, at any time, the rate of
interest then most recently established by the Administrative Agent in
New York as its base rate for Dollars loaned in the United States.  The Base Rate is not necessarily intended to
be the lowest rate of interest determined by the Administrative Agent in
connection with extensions of credit.


 


5





















 


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


 


“Bear Stearns” is defined in the preamble.


 


“Borrower” is defined in the preamble.


 


“Borrower Pledge and Security Agreement” means
the Pledge and Security Agreement, dated as of the Original Closing Date,
executed and delivered by an Authorized Officer of the Borrower pursuant to the
Existing Credit Agreement, a conformed copy of which is attached as Exhibit H
hereto, together with any supplemental Foreign Pledge Agreements delivered
pursuant to the terms of this Agreement, in each case as amended, supplemented,
amended and restated or otherwise modified from time to time.


 


“Borrowing” means the Loans of the same type
and, in the case of LIBO Rate Loans, having the same Interest Period made by
all Lenders required to make such Loans on the same Business Day and pursuant
to the same Borrowing Request in accordance with Section 2.3.


 


“Borrowing Request” means a Loan request and
certificate duly executed by an Authorized Officer of the Borrower
substantially in the form of Exhibit B-1 hereto.


 


“Business Day” means (a) any day which is
neither a Saturday or Sunday nor a legal holiday on which banks are authorized
or required to be closed in New York, New York and (b) relative
to the making, continuing, prepaying or repaying of any LIBO Rate Loans, any
day which is a Business Day described in clause (a) above and which
is also a day on which dealings in Dollars are carried on in the London interbank
eurodollar market.


 


“Capital Expenditures” means, for any period,
the aggregate amount of (a) all expenditures of the Borrower and its
Subsidiaries for fixed or capital assets made during such period which, in
accordance with GAAP, would be classified as capital expenditures and (b) Capitalized
Lease Liabilities incurred by the Borrower and its Subsidiaries during such
period.  The term Capital Expenditures
shall not include any expenditures for Permitted Acquisitions otherwise
permitted hereunder.


 


“Capital Securities” means, with respect to any
Person, all shares, interests, participations or other equivalents (however
designated, whether voting or non-voting) of such Person’s capital, whether now
outstanding or issued after the Amendment Effective Date, including common
shares, preferred shares, membership interests in a limited liability company,
limited or general partnership interests in a partnership or any other
equivalent of such ownership interest.


 


“Capitalized Lease Liabilities” means, with respect
to any Person, all monetary obligations of such Person and its Subsidiaries
under any leasing or similar arrangement which have been (or, in accordance
with GAAP, should be) classified as capitalized leases, and for purposes of
each Loan Document the amount of such obligations at any time shall be the
capitalized amount thereof at such time, determined in accordance with GAAP,
and the stated maturity thereof shall be the date of the last payment of rent
or any other amount due under such


 


6





















 


lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
premium or a penalty.


 


“Cash Collateralize” means, with respect to a
Letter of Credit, the deposit of immediately available funds into a cash
collateral account maintained with (or on behalf of) the Administrative Agent
on terms reasonably satisfactory to the Administrative Agent in an amount equal
to the Stated Amount of such Letter of Credit.


 


“Cash Equivalent Investment” means, at any
time:


 


(a)           any direct obligation of (or
obligation unconditionally guaranteed by) the United States or a State thereof
(or any agency or political subdivision thereof, to the extent such obligations
are supported by the full faith and credit of the United States or a State
thereof) maturing not more than one year after such time;


 


(b)           commercial paper maturing not more
than 360 days from the date of issue, which is issued by (i) a corporation
(other than an Affiliate of any Obligor) organized under the laws of any State
of the United States or of the District of Columbia and rated “A-1” or higher
by S&P or “P-1” or higher by Moody’s, or (ii) any Lender (or its
holding company);


 


(c)           any certificate of deposit, time
deposit or bankers acceptance, maturing not more than one year after its date
of issuance, which is issued by either (i) any bank organized under the
laws of the United States (or any State thereof) and which has (x) a
credit rating of “A2” or higher from Moody’s or “A” or higher from S&P and
(y) a combined capital and surplus greater than $500,000,000, or (ii) any
Lender;


 


(d)           any repurchase agreement having a
term of 90 days or less entered into with any Lender or any commercial banking
institution satisfying the criteria set forth in clause (c)(i); or


 


(e)           shares of any mutual fund whose
investment guidelines restrict substantially all of such fund’s investments to
investments of the type specified in clauses (a) through (d) above.


 


“Casualty Event” means the damage, destruction
or condemnation, as the case may be, of property of any Person or any of its
Subsidiaries.


 


“CERCLA” means the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended.


 


“CERCLIS” means the Comprehensive Environmental
Response Compensation Liability Information System List.


 


7





















 


“Change in Control” means


 


(a)           any person or group (within the
meaning of Sections 13(d) and 14(d) under the Exchange Act), other
than the Permitted Holders, shall become the ultimate “beneficial owner” (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, of more than 30% of the outstanding Voting Securities of Parent,
collectively, beneficially and of record on a fully diluted basis; or


 


(b)           the failure of Parent at any time to
directly own beneficially and of record on a fully diluted basis 100% of the
outstanding Capital Securities of the Borrower; or


 


(c)           during any period of 24 consecutive
months, individuals who at the beginning of such period constituted the Board
of Directors of Parent (together with any new directors whose election to such
Board or whose nomination for election by the stockholders of Parent was
approved by a vote of a majority of the directors then still in office who were
either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors of Parent then in office.


 


“CIBC World Markets” is defined in the preamble.


 


“Code” means the Internal Revenue Code of 1986,
and the regulations thereunder, in each case as amended, reformed or otherwise
modified from time to time.


 


“Commitment” means, as the context may require,
the Initial Term Loan Commitment, an Incremental Term Loan Commitment, the
Revolving Loan Commitment, the Letter of Credit Commitment or the Swing Line
Loan Commitment.


 


“Commitment Amount” means, as the context may
require, the Initial Term Loan Commitment Amount, the Revolving Loan Commitment
Amount, the Letter of Credit Commitment Amount, an Incremental Term Loan
Commitment Amount or the Swing Line Loan Commitment Amount.


 


“Commitment Termination Date” means, as the
context may require, an Incremental Term Loan Commitment Termination Date, the
Initial Term Loan Commitment Termination Date or the Revolving Loan Commitment
Termination Date.


 


“Commitment Termination Event” means


 


(a)           the occurrence of any Event of
Default with respect to the Borrower described in clauses (a) through
(d) of Section 8.1.9; or


 


(b)           the occurrence and continuance of any
other Event of Default and either


 


(i)  the declaration
of all or any portion of the Loans to be due and payable pursuant to Section 8.3,
or


 


8





















 


(ii)  the giving of
notice by the Administrative Agent, acting at the direction of the Required
Lenders, to the Borrower that the Commitments have been terminated pursuant to Section 8.3.


 


“Compliance Certificate” means a certificate duly
completed and executed by an Authorized Officer of the Borrower, substantially
in the form of Exhibit E hereto.


 


“Contingent Liability” means any agreement,
undertaking or arrangement by which any Person guarantees, endorses or
otherwise becomes or is contingently liable upon (by direct or indirect
agreement, contingent or otherwise, to provide funds for payment, to supply
funds to, or otherwise to invest in, a debtor, or otherwise to assure a
creditor against loss) the Indebtedness of any other Person (other than by
endorsements of instruments in the course of collection or deposit), or
guarantees the payment of dividends or other distributions upon the Capital
Securities of any other Person.  The
amount of any Person’s obligation under any Contingent Liability shall (subject
to any limitation set forth therein) be deemed to be the outstanding principal
amount of the debt, obligation or other liability guaranteed thereby.


 


“Continuation/Conversion Notice” means a notice
of continuation or conversion and certificate duly executed by an Authorized
Officer of the Borrower, substantially in the form of Exhibit C
hereto.


 


“Controlled Group” means all members of a
controlled group of corporations and all members of a controlled group of
trades or businesses (whether or not incorporated) under common control which,
together with the Borrower, are treated as a single employer under
Sections 414(b) or 414(c) of the Code or Section 4001 of
ERISA.


 


“Copyright Security Agreement” means any
Copyright Security Agreement executed and delivered by any Obligor, in
substantially the form of Exhibit C to any Security Agreement, as amended,
supplemented, amended and restated or otherwise modified from time to time.


 


“Credit Extension” means, as the context may
require, (a) the making of a Loan by a Lender, or (b) the issuance of
any Letter of Credit, or the extension of any Stated Expiry Date of any
existing Letter of Credit, by an Issuer.


 


“Credit Parties” means, collectively, the
Lenders, the Issuers, the Administrative Agent, the Syndication Agent and, in
each case, each of their respective successors, transferees and assigns.


 


“Credit Suisse” is defined in the preamble.


 


“Cumulative Distributable Cash” means, for the
Borrower and its Subsidiaries as of any date of determination, the sum of:


 


(a)           $10,000,000;


 


plus


 


9





















 


(b)           the aggregate amount of Available
Cash for each Fiscal Quarter ended during the most recently completed Reference
Period;


 


plus


 


(c)           net cash proceeds received by Parent
in respect of issuances or sales of its Capital Securities after the Amendment
Effective Date but prior to such date of determination to the extent such
proceeds are contributed to the Borrower as equity;


 


minus


 


(d)           the aggregate amount of:


 


(i)  Restricted
Payments made pursuant to clause (f) of Section 7.2.6
prior to such date; and


 


(ii)  Investments
made pursuant to clause (m) of Section 7.2.5 (net of any
dividends, distributions or other payments received in cash in respect of such
Investment) prior to such date;


 


minus


 


(e)           to the extent occurring after the end
of the most recently ended Reference Period and until taken into account in
determining Available Cash for the Fiscal Quarter in which it has occurred, the
aggregate amount of:


 


(i)  amounts applied
towards Permitted Acquisitions pursuant to clause (b)(ii)(B) of Section 7.2.9
prior to such date, excluding any Permitted Acquisitions financed with the
proceeds (A) of Indebtedness permitted hereunder and identified pursuant
to clause (c) of Section 7.1.1 as having been applied
to finance Permitted Acquisitions, (B) from sales of assets permitted
hereunder or (C) received as a result of Casualty Events; and


 


(ii)  prepayments of
the Loans made pursuant to clause (e) of Section 3.1.1
(other than Revolving Loans and Swing Line Loans) prior to such date.


 


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


 


“Disbursement” is defined in Section 2.6.2.


 


“Disbursement Date” is defined in Section 2.6.2.


 


10





















 


“Disclosure Schedule” means the Disclosure Schedule attached
hereto as Schedule I, as it may be amended, supplemented, amended and
restated or otherwise modified from time to time by the Borrower with the
written consent of the Required Lenders.


 


“Disposition” (or similar words such as “Dispose”)
means any sale, transfer, lease, contribution or other conveyance (including by
way of merger) of, or the granting of options, warrants or other rights to, any
Person’s or such Person’s Subsidiaries’ assets (including accounts receivable
and Capital Securities of such Person’s Subsidiaries) to any other Person in a
single transaction or series of transactions.


 


“Dividend Suspension Period” means any period (a) commencing
on the date of delivery of a Compliance Certificate demonstrating that the
Leverage Ratio is greater than 3.75:1.00 as of the last day of the then most
recently completed Fiscal Quarter of the Borrower covered by such Compliance
Certificate delivered pursuant to clause (c) of Section 7.1.1
and (b) ending on the first date thereafter on which the Borrower delivers
a Compliance Certificate pursuant to clause (c) of Section 7.1.1
demonstrating that the Leverage Ratio is equal to or less than 3.75:1.00 as of
the last day of the then most recently completed Fiscal Quarter of the Borrower
covered by such Compliance Certificate; provided that, for the avoidance
of doubt, a Dividend Suspension Period cannot occur prior to the delivery of
the Compliance Certificate for the Fiscal Quarter ending September 30,
2005.


 


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


 


“Domestic Office” means the office of a Lender
designated as its “Domestic Office” on Schedule II hereto or in a
Lender Assignment Agreement, or such other office within the United States as
may be designated from time to time by notice from such Lender to the
Administrative Agent and the Borrower.


 


“EBITDA” means, for any applicable period, the
sum of (a) Net Income, plus (b) to the extent deducted in
determining Net Income, the sum of (i) amounts attributable to
depreciation and amortization, (ii) income tax expense, (iii) Interest
Expense, (iv) any other non-cash charges (less non-cash income) for
which no cash reserves (or receivables) have been or will be set aside (or
created), including non-cash compensation expenses, (v) any loss from the
extinguishment of Indebtedness, (vi) any fees paid prior to the Amendment
Effective Date in respect of the Monitoring Agreement, (vii) the
Transaction Adjustments, (viii) all fees and expenses incurred in
connection with Permitted Acquisitions to the extent accounted for as expenses
and (ix) for the four Fiscal Quarters ending after September 30,
2004, an amount equal to the sum of (x) the special transaction payments paid
to certain members of management and certain directors in connection with the
issuance of the Parent Notes in an amount not to exceed $1,300,000 plus
(y) an amount not to exceed $4,000,000 for other expenses incurred in
connection with the issuance of the Parent Notes and the related amendment to
the Existing Credit Agreement.


 


“Eligible Assignee” means (a) a Lender, (b) an
Affiliate of a Lender, (c) an Approved Fund or (d) any other Person
(other than a natural Person) approved (in the case of this clause (d))
by the Issuer (but then only in the case of any assignment of the Revolving
Loan Commitment) and, unless (i) such Person is taking delivery of an
assignment of Term Loans in


 


11





















 


connection with physical
settlement of a credit derivatives transaction, (ii) the assignment is
being made to such Person by the Administrative Agent or the Syndication Agent
(or one of their Affiliates) during the Primary Syndication or (iii) a
Default has occurred and is continuing, the Borrower (each such approval not to
be unreasonably withheld or delayed).


 


“Environmental Laws” means all applicable
foreign, federal, state or local statutes, laws (including common law),
ordinances, codes, rules, regulations and final orders of a Governmental
Authority (including consent decrees and administrative orders) relating to
public health and safety, occupational safety and health or protection of the
environment.


 


“ERISA” means the Employee Retirement Income
Security Act of 1974, as amended, and any successor statute thereto of similar
import, together with the regulations thereunder, in each case as in effect
from time to time.  References to sections
of ERISA also refer to any successor sections thereto.


 


“Event of Default” is defined in Section 8.1.


 


“Exchange Act” means the Securities Exchange
Act of 1934, as amended.


 


“Exemption Certificate” is defined in clause
(e) of Section 4.6.


 


“Existing Credit Agreement” is defined in the first
recital.


 


“Existing Lenders” is defined in the first
recital.


 


“Existing Letters of Credit” means each of the
Letters of Credit set forth on Item 2.1.2 of Schedule I
hereto.


 


“Existing Loans” is defined in the first
recital.


 


“Existing Revolving Loans” is defined in the first
recital.


 


“Existing Term Loans” is defined in the first
recital.


 


“Expense Payments” is defined in the third
recital.


 


“Fair Market Value”
means, with respect to any asset, the price (after taking into account any
liabilities relating to such asset) that would be negotiated in an arm’s length
transaction for cash between a willing seller and a willing and able buyer,
neither of which is under any compulsion to complete the transaction, as such price
is determined in good faith by management of the Borrower or by the Board of
Directors of the Borrower or a duly authorized committee thereof.  Fair Market Value (other than of any asset
with a public trading market) in excess of $5,000,000 shall be determined by
the Board of Directors of the Borrower acting reasonably and in good faith and
shall be evidenced by a board resolution delivered to the Administrative Agent.


 


12





















 


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


 


“Fee Letters” means (a) the confidential
fee letter, dated the Original Closing Date, from Credit Suisse to the Borrower
and (b) the confidential fee letter, dated March 14, 2005, from CIBC
World Markets, CIBC, Bear Stearns, Bear Stearns Corporate Lending Inc., Lehman,
Lehman Commercial Paper Inc. and Credit Suisse to the Borrower, in each case,
as amended, supplemented, amended and restated or otherwise modified from time
to time.


 


“Filing Statements” means all UCC financing statements or other similar
financing statements and UCC termination statements required pursuant to the
Loan Documents.


 


“Fiscal Quarter” means a quarter ending on the
last day of March, June, September or December.


 


“Fiscal Year” means any period of twelve
consecutive calendar months ending on December 31; references to a Fiscal
Year with a number corresponding to any calendar year (e.g., the “2005
Fiscal Year”) refer to the Fiscal Year ending on December 31 of such
calendar year.


 


“Foreign Pledge Agreement” means any
supplemental pledge agreement governed by the laws of a jurisdiction other than
the United States or a State thereof executed and delivered by the Borrower or
any of its Subsidiaries pursuant to the terms of this Agreement, in form and
substance reasonably satisfactory to the Administrative Agent, as may be
necessary or desirable under the laws of organization or incorporation of a
Subsidiary to further protect or perfect the Lien on and security interest in
any Collateral (as defined in a Security Agreement).


 


“Foreign Subsidiary” means any Subsidiary that
is not a U.S. Subsidiary.


 


“F.R.S. Board” means the Board of Governors of
the Federal Reserve System or any successor thereto.


 


“GAAP” means (a) subject to clause (b) below,
with respect to the interpretation of all accounting terms used herein and in
each other Loan Document, the calculation of all accounting determinations and
computations required to be made hereunder or thereunder (including under Section 7.2.4
and in respect of any defined terms used herein or in any other Loan Document),
those U.S. generally accepted accounting principles applied in the preparation
of the Borrower’s audited consolidated financial statements for the Fiscal Year
ended December 31, 2004 and (b) with respect to the financial
statements of the Borrower required to be delivered pursuant to clauses (a) and
(b) of Section 7.1.1 or any similar financial
statements of the Borrower or any of its Subsidiaries required to be delivered
hereunder or under any other Loan Document, U.S.


 


13





















 


generally accepted
accounting principles in effect at the time (or for the period) to which such
financial statements relate.


 


“Governmental Authority” means the government
of the United States, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other Person exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.


 


“Guarantor” means Parent and each Subsidiary
Guarantor.


 


“Guaranty” means, as the context may require,
the Parent Guaranty and Pledge Agreement and the Subsidiary Guaranty.


 


“Hazardous Material” shall mean any material,
substance, form of energy or pathogen that (a) constitutes a “hazardous
substance” as defined by CERCLA, “hazardous waste” as defined by the Resource
Conservation and Recovery Act, as amended, or a “pollutant”, “contaminant”, “hazardous
material”, “hazardous chemical”, or “regulated substance” within the meaning of
any applicable Environmental Laws, or (b) is otherwise regulated by, or
that otherwise gives rise to liability under, any applicable Environmental
Laws.  Without limiting the generality of
the foregoing, Hazardous Material shall include any substance that contains any
ammonia, ammonia hydroxide, asbestos, polychlorinated biphenyls, or petroleum,
or that is flammable, explosive, radioactive or corrosive.


 


“Hedging Obligations” means, with respect to
any Person, all liabilities of such Person under currency exchange agreements,
interest rate swap agreements, interest rate cap agreements and interest rate
collar agreements, and all other agreements or arrangements designed to protect
such Person against fluctuations in interest rates or currency exchange rates.


 


“herein”, “hereof”, “hereto”, “hereunder”
and similar terms contained in any Loan Document refer to such Loan Document as
a whole and not to any particular Section, paragraph or provision of such Loan
Document.


 


“Impermissible Qualification” means any
qualification or exception to the opinion or certification of any independent
public accountant as to any financial statement of the Borrower


 


(a)           which is of a “going concern” or
similar nature;


 


(b)           which relates to the limited scope of
examination of matters relevant to such financial statement; or


 


(c)           which relates to the treatment or
classification of any item in such financial statement and which, as a
condition to its removal, would require an adjustment to such item the effect
of which would be to cause the Borrower to be in Default.


 


“including” and “include” means including
without limiting the generality of any description preceding such term, and,
for purposes of each Loan Document, the parties hereto


 


14





















 


agree that the rule of
ejusdem  generis shall not be applicable to limit a general
statement, which is followed by or referable to an enumeration of specific
matters, to matters similar to the matters specifically mentioned.


 


“Incremental Term Loan” is defined in clause
(a) of Section 2.1.4.


 


“Incremental Term Loan Commitment” is defined
in clause (a) of Section 2.1.4.


 


“Incremental Term Loan Commitment Termination Date”
means, with respect to any Incremental Term Loan Commitment, the earliest of (a) any
date agreed by the Borrower, the Lender providing such Incremental Term Loan
Commitment and the other Lenders providing related Incremental Term Loan
Commitments, (b) the date upon which Incremental Term Loans in an
aggregate principal amount equal to the related Incremental Term Loan
Commitment Amount shall have been made (immediately after the making of such
Incremental Term Loans on such date) and (c) the date on which any
Commitment Termination Event occurs.


 


“Indebtedness” of any Person means:


 


(a)           all obligations of such Person for
borrowed money or advances and all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments;


 


(b)           all obligations, contingent or
otherwise, relative to the face amount of all letters of credit, whether or not
drawn, and banker’s acceptances issued for the account of such Person;


 


(c)           all Capitalized Lease Liabilities of
such Person;


 


(d)           for purposes of Section 8.1.5
only, all other items which, in accordance with GAAP, would be included as
liabilities on the balance sheet of such Person as of the date at which
Indebtedness is to be determined;


 


(e)           net Hedging Obligations of such
Person;


 


(f)            whether or not so included as
liabilities in accordance with GAAP, all obligations of such Person to pay the
deferred purchase price of property or services (excluding trade accounts
payable in the ordinary course of business which are not overdue for a period
of more than 90 days or, if overdue for more than 90 days, as to which a
dispute exists and adequate reserves in conformity with GAAP have been
established on the books of such Person), and indebtedness secured by (or for
which the holder of such indebtedness has an existing right, contingent or
otherwise, to be secured by) a Lien on property owned or being acquired by such
Person (including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have been assumed
by such Person or is limited in recourse;


 


(g)           obligations arising under Synthetic
Leases; and


 


(h)           all Contingent Liabilities of such
Person in respect of any of the foregoing.


 


15





















 


The Indebtedness of any Person shall include the
Indebtedness of any other Person (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor as a
result of such Person’s ownership interest in or other relationship with such
Person, except to the extent the terms of such Indebtedness provide that such
Person is not liable therefor.


 


“Indemnified Liabilities” is defined in Section 10.4.


 


“Indemnified Parties” is defined in Section 10.4.


 


“Initial Term Loan” is defined in Section 2.1.3.


 


“Initial Term Loan Commitment” means, relative
to any Lender, such Lender’s obligation (if any) to make Initial Term Loans
pursuant to Section 2.1.3.


 


“Initial Term Loan Commitment Amount” means, on
any date, $240,000,000.


 


“Initial Term Loan Commitment Termination Date”
means the earlier of (a) the Amendment Effective Date (immediately after
the making of the Initial Term Loans on such date), and (b) the date on
which any Commitment Termination Event occurs.


 


“Interest Coverage Ratio” means, as of the last
day of any Fiscal Quarter, the ratio computed for the period consisting of such
Fiscal Quarter and each of the three immediately preceding Fiscal Quarters of (a) EBITDA
(for all such Fiscal Quarters) to (b) cash Interest Expense paid or
accrued (for all such Fiscal Quarters); provided that for each of the
first three Fiscal Quarters ending after the Amendment Effective Date, Interest
Expense shall be determined on an Annualized Basis.


 


“Interest Expense” means, for any applicable
period, the aggregate interest expense of the Borrower and its Subsidiaries for
such applicable period determined in accordance with GAAP, including the portion
of any cash payments made or accrued in respect of Capitalized Lease
Liabilities allocable to interest expense.


 


“Interest Period” means, relative to any LIBO
Rate Loan, the period beginning on (and including) the date on which such LIBO
Rate Loan is made or continued as, or converted into, a LIBO Rate Loan pursuant
to Sections 2.3 or 2.4 and shall end on (but exclude) the day
which numerically corresponds to such date one, two, three or six months, and
if available to all Lenders required to make such LIBO Rate Loans, nine or
twelve months thereafter (or, if such month has no numerically corresponding
day, on the last Business Day of such month), as the Borrower may select in its
relevant notice pursuant to Sections 2.3 or 2.4; provided
that


 


(a)           the Borrower shall not be permitted
to select Interest Periods to be in effect at any one time which have
expiration dates occurring on more than ten different dates;


 


(b)           if such Interest Period would
otherwise end on a day which is not a Business Day, such Interest Period shall
end on the next following Business Day (unless


 


16





















 


such next following Business Day is the first Business
Day of a calendar month, in which case such Interest Period shall end on the
Business Day next preceding such numerically corresponding day); and


 


(c)           no Interest Period for any Loan may
end later than the Stated Maturity Date for such Loan.


 


“Investment” means, relative to any Person,


 


(a)           any loan, advance or extension of
credit made by such Person to any other Person, including the purchase by such
Person of any bonds, notes, debentures or other debt securities of any other
Person;


 


(b)           Contingent Liabilities in favor of
any other Person; and


 


(c)           any Capital Securities held by such Person
in any other Person.


 


The amount of any Investment shall be the original
principal or capital amount thereof less all returns of principal or
equity thereon and shall, if made by the transfer or exchange of property other
than cash, be deemed to have been made in an original principal or capital
amount equal to the fair market value of such property at the time of such
Investment.


 


“ISP Rules” is defined in Section 10.9.


 


“Issuance Request” means a Letter of Credit
request and certificate duly executed by an Authorized Officer of the Borrower,
substantially in the form of Exhibit B-2 hereto.


 


“Issuer” means Credit Suisse in its capacity as
Issuer of the Letters of Credit and/or, at the request of Credit Suisse and
with the Borrower’s consent (not to be unreasonably withheld or delayed),
another Lender or an Affiliate of a Lender that has agreed to issue one or more
Letters of Credit hereunder or any Lender or an Affiliate of a Lender that has
an agreement with any Non-Lender Issuer to issue Letters of Credit for the
account of the Borrower and its Subsidiaries.


 


“Lead Arrangers” is defined in the preamble.


 


“Lehman” is defined in the preamble.


 


“Lehman Commercial Paper” is defined in the preamble.


 


“Lender Assignment Agreement” means an
assignment agreement substantially in the form of Exhibit D hereto.


 


“Lenders” is defined in the preamble.


 


“Lender’s Environmental Liability” means any
and all losses, liabilities, obligations, penalties, claims, litigation,
demands, defenses, costs, judgments, suits, proceedings, damages (including
consequential damages), reasonable disbursements or expenses of any kind or
nature whatsoever, whether or not based on strict liability (including
reasonable attorneys’ fees at trial


 


17





















 


and appellate levels;
reasonable experts’ fees and disbursements and expenses incurred in
investigating, defending against or prosecuting any litigation, matter, claim
or proceeding; and reasonable consultant fees, disbursements and expenses) which
may at any time be imposed upon, incurred by or asserted or awarded against the
Administrative Agent, any Lender or any Issuer or any of such Person’s
Affiliates, shareholders, directors, officers, employees, and agents in
connection with or arising from:


 


(a)           the actual or alleged presence or
Release of any Hazardous Material at, from, on, in, under or affecting all or
any portion of any property of the Borrower or any of its Subsidiaries, the
groundwater thereunder, or to the extent resulting from activities of the
Borrower or any of its Subsidiaries or any of their respective predecessors,
any surrounding areas thereof;


 


(b)           any misrepresentation, inaccuracy or
breach of any warranty, contained or referred to in Section 6.12 or
the breach of any covenant in Section 7.1.6;


 


(c)           any actual or alleged material
violation by the Borrower or any of its Subsidiaries of any Environmental Laws;
or


 


(d)           the imposition of any lien for
damages caused by or for the recovery of any costs for the cleanup, Release or
threatened Release of Hazardous Material by the Borrower or any of its
Subsidiaries, or in connection with any property owned or operated at any time
by the Borrower or any of its Subsidiaries.


 


“Letter of Credit” is defined in Section 2.1.2.


 


“Letter of Credit Commitment” means the Issuer’s
obligation to issue Letters of Credit pursuant to clause (a) of Section 2.1.2.


 


“Letter of Credit Commitment Amount” means, on
any date, a maximum amount of $20,000,000, as such amount may be permanently
reduced from time to time pursuant to Section 2.2.


 


“Letter of Credit Outstandings” means, on any
date, an amount equal to the sum of (a) the then aggregate amount which is
undrawn and available under all issued and outstanding Letters of Credit, and (b) the
then aggregate amount of all unpaid and outstanding Reimbursement Obligations.


 


“Leverage Ratio” means, as of the last day of
any Fiscal Quarter, the ratio of (a) Total Debt outstanding on the last
day of such Fiscal Quarter to (b) EBITDA computed for the period consisting
of such Fiscal Quarter and each of the three immediately preceding Fiscal
Quarters.


 


“LIBO Rate” means, with respect to any LIBO
Rate Loans for any Interest Period, the rate per annum determined by the
Administrative Agent at approximately 11:00 a.m. (London time) on the date
that is two Business Days prior to the beginning of the relevant Interest
Period by reference to the British Bankers’ Association Interest Settlement
Rates for deposits in Dollars (as set forth by the Bloomberg Information
Service or any successor thereto or any other service


 


18





















 


selected by the
Administrative Agent which has been nominated by the British Bankers’
Association as an authorized information vendor for the purpose of displaying
such rates) for a period equal to such Interest Period; provided that, to the extent that
an interest rate is not ascertainable pursuant to the foregoing provisions of
this definition, the “LIBO Rate” shall be the interest rate per annum
determined by the Administrative Agent to be the average of the rates per annum
at which deposits in Dollars are offered for such relevant Interest Period to
major banks in the London interbank market in London, England by the
Administrative Agent at approximately 11:00 a.m. (London time) on the date
that is two Business Days prior to the beginning of such Interest Period.


 


“LIBO Rate Loan” means a Loan bearing interest,
at all times during an Interest Period applicable to such Loan, at a rate of
interest determined by reference to the LIBO Rate (Reserve Adjusted).


 


“LIBO Rate (Reserve Adjusted)” means, relative
to any Loan to be made, continued or maintained as, or converted into, a LIBO
Rate Loan for any Interest Period, a rate per annum determined pursuant to the
following formula:


 




	
  LIBO Rate

  	
  =

  	
  LIBO Rate

  
	
  (Reserve
  Adjusted)

  	
   

  	
  1.00 - LIBOR
  Reserve Percentage

  






 


The LIBO Rate (Reserve Adjusted) for any Interest
Period for LIBO Rate Loans will be determined by the Administrative Agent on
the basis of the LIBOR Reserve Percentage in effect two Business Days before
the first day of such Interest Period.


 


“LIBOR Office” means the office of a Lender
designated as its “LIBOR Office” on Schedule II hereto or in a
Lender Assignment Agreement, or such other office designated from time to time
by notice from such Lender to the Borrower and the Administrative Agent,
whether or not outside the United States, which shall be making or maintaining
the LIBO Rate Loans of such Lender.


 


“LIBOR Reserve Percentage” means, relative to
any Interest Period for LIBO Rate Loans, the reserve percentage (expressed as a
decimal) equal to the maximum aggregate reserve requirements (including all
basic, emergency, supplemental, marginal and other reserves and taking into
account any transitional adjustments or other scheduled changes in reserve
requirements) specified under regulations issued from time to time by the
F.R.S. Board and then applicable to assets or liabilities consisting of or
including “Eurocurrency Liabilities”, as currently defined in Regulation D
of the F.R.S. Board, having a term approximately equal or comparable to such
Interest Period.


 


“Lien” means any security interest, mortgage,
pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or otherwise), charge against or interest in property, or other
priority or preferential arrangement of any kind or nature whatsoever, in each
case to secure payment of a debt or performance of an obligation.


 


19





















 


“Loan” means, as the context may require, a
Revolving Loan, a Term Loan or a Swing Line Loan of any type.


 


“Loan Documents” means, collectively, this
Agreement, the Notes, the Letters of Credit, each Fee Letter, each Guaranty,
each Security Agreement, each Mortgage, the Affirmation and Consent, each other
agreement pursuant to which the Administrative Agent is granted a Lien to
secure the Obligations and each other agreement, certificate, document or
instrument delivered in connection with any Loan Document, whether or not
specifically mentioned herein or therein; provided that for purposes of
any agreement pursuant to which the Administrative Agent is granted a Lien to
secure the Obligations, the term “Loan Document” shall include each Rate
Protection Agreement.


 


“Material Adverse Effect” means a material
adverse effect on (a) the condition (financial or otherwise), business,
operations, assets, liabilities (contingent or otherwise) or properties of the
Borrower and its Subsidiaries taken as a whole, (b) the rights and remedies
of any Secured Party under the Loan Documents taken as a whole or (c) the
ability of Parent, the Borrower or any Significant Subsidiary to perform its
Obligations under any Loan Document.


 


“Monitoring Agreement”
means the Monitoring and Management Services Agreement, dated as of the
Original Closing Date, among Parent, the Borrower and the Sponsors, as
amended, supplemented, amended and restated or otherwise modified from time to
time.


 


“Monitoring Agreement Buyout Payment” means the
payment of not more than $4,000,000 to the Sponsors in connection with the
termination of the Monitoring Agreement.


 


“Moody’s” means Moody’s Investors Service, Inc.


 


“Mortgage” means an agreement, a mortgage, deed
of trust or any other document creating or evidencing a Lien on Mortgaged
Property executed, acknowledged and delivered by each Obligor that is the owner
of or holder of interest in Mortgaged Property in favor of the Administrative
Agent for the benefit of the Secured Parties pursuant to the requirements of this
Agreement under which a Lien is granted on the real property and fixtures
described therein, in each case in form and substance reasonably satisfactory
to the Lead Arrangers and as amended, supplemented, amended and restated or
otherwise modified from time to time.


 


“Mortgaged Property” means (a) all real
property owned by any Obligor on the Amendment Effective Date with a fair
market value of at least $1,000,000 (which properties owned as of the Amendment
Effective Date are described in Item 6.9(b) of the Disclosure
Schedule) and (b) all other real property, if any, which shall be subject
to a Mortgage delivered pursuant to Section 7.1.8.


 


“Net Casualty Proceeds” means, with respect to
any Casualty Event, the amount of any insurance proceeds or condemnation awards
(net of any taxes actually paid or estimated by the Borrower to be payable in
cash) received by the Borrower or any of its Subsidiaries in connection with
such Casualty Event (net of all reasonable collection expenses thereof), but
excluding any proceeds or awards required to be paid to a creditor (other than
the Lenders) which holds a Lien permitted by Section 7.2.3 on the
property which is the subject of such


 


20





















 


Casualty Event; provided
that if the amount of any estimated taxes exceeds the amount of taxes actually
required to be paid in cash in respect of such Casualty Event within 12 months
of such Casualty Event, the aggregate amount of such excess shall constitute
Net Casualty Proceeds.


 


“Net Debt Proceeds” means, with respect to each
of (a) the incurrence, sale or issuance by the Borrower or any of its
Subsidiaries after the Amendment Effective Date of any Indebtedness which is
not expressly permitted by Section 7.2.2, or (b) the issuance
by the Borrower of any of its Subsidiaries of preferred stock (other than
preferred stock that does not mature and is not redeemable at the option of the
holder prior to at least six months after the latest Stated Maturity Date for
Term Loans), the excess of (x) the gross cash proceeds actually received by
such Person from such incurrence, sale or issuance, less (y) all
reasonable arranging or underwriting fees and commissions, and all legal,
investment banking, brokerage and accounting and other professional fees, sales
commissions and disbursements and other reasonable closing costs and expenses,
in each case, actually incurred and paid in cash in connection with such
incurrence, sale or issuance.


 


“Net Disposition Proceeds” means the gross cash
proceeds actually received by the Borrower or its U.S. Subsidiaries from any
Disposition pursuant to clauses (c) or (e) of Section 7.2.10
and any cash payment actually received in respect of promissory notes or other
non-cash consideration delivered to the Borrower or its U.S. Subsidiaries in
respect of such specified Dispositions, minus the sum of (a) all
reasonable legal, investment banking, brokerage and accounting fees and
expenses incurred in connection with such Disposition, (b) all reasonable
expenses to prepare such asset for sale and all transportation costs in
connection with such sale, (c) all taxes actually paid or estimated by the
Borrower to be payable in cash within the next 12 months in connection with
such Disposition, (d) payments made by the Borrower or its U.S.
Subsidiaries to retire Indebtedness (other than the Credit Extensions) where
payment of such Indebtedness is required in connection with such Disposition
and (e) the amount of any reserves established by the Borrower or any of
the U.S. Subsidiaries to fund contingent liabilities reasonably estimated to be
payable during the 12 month period following such event that such Person’s
chief financial officer determined in good faith are directly attributable to
such event; provided that if the amount of any estimated taxes pursuant
to clause (c) exceeds the amount of taxes actually required to be
paid in cash in respect of such Disposition or the amount of any estimated
reserves pursuant to clause (e) above exceeds the amount of
reserves actually required to be paid in cash in respect of such Disposition in
each case within 12 months of such Disposition, the aggregate amount of such
excess shall constitute Net Disposition Proceeds.


 


“Net Income” means, for any period, the
aggregate of all amounts (exclusive of all amounts in respect of any
extraordinary gains or losses) which would be included as net income on the
consolidated financial statements of the Borrower and its Subsidiaries for such
period.


 


“New Initial Term Loans” is defined in the second
recital.


 


“Non-Excluded Taxes” means any Taxes imposed
with respect to any Credit Party arising from or in respect of any payment made
or to be made, or income derived from or otherwise imposed with respect to any
Loan Document, other than (i) Taxes (including franchise taxes and branch
profits taxes) imposed on or measured by net income, net profits, or overall


 


21





















 


gross receipts (or any
minimum Taxes imposed in lieu thereof) that are imposed by any Governmental Authority
under the laws of which such Credit Party is incorporated or organized or in
which it maintains an office or (ii) Taxes not described in clause (i) that
are imposed by reason of any connection between the jurisdiction imposing such
Tax and such Credit Party (other than a connection arising merely on account of
its being a party to, performing or receiving a payment under, or enforcing its
rights with respect to, this Agreement).


 


“Non-Lender Issuer” is defined in Section 2.6.6.


 


“Non-U.S. Credit Party” means any Credit Party
that is not a “United States person”, as defined under Section 7701(a)(30)
of the Code.


 


“Note” means, as the context may require, a
Revolving Note, a Term Note or a Swing Line Note.


 


“Obligations” means all obligations (monetary
or otherwise, whether absolute or contingent, matured or unmatured) of the
Borrower and each other Obligor arising under or in connection with a Loan
Document or a Rate Protection Agreement, including Reimbursement Obligations
and the principal of and interest (including interest accruing during the
pendency of any proceeding of the type described in Section 8.1.9,
whether or not allowed in such proceeding) on the Loans.


 


“Obligor” means, as the context may require,
Parent, the Borrower and each other Person (other than a Secured Party)
obligated under any Loan Document.


 


“Organic Document” means, relative to any
Obligor, as applicable, its certificate of incorporation, by-laws, certificate
of partnership, partnership agreement, certificate of formation, limited
liability agreement, operating agreement and all shareholder agreements, voting
trusts and similar arrangements applicable to any of such Obligor’s Capital
Securities.


 


“Original Closing Date” means August 15,
2003.


 


“Other Taxes” means any and all stamp,
documentary or similar excise Taxes or levies that arise on account of any
payment made or required to be made under any Loan Document or from the
execution, delivery, registration, recording or enforcement of any Loan
Document.


 


“Parent” means Reddy Ice Holdings, Inc., a
Delaware corporation.


 


“Parent Guaranty and Pledge Agreement” means
the Parent Guaranty and Pledge Agreement, as amended and restated on the
Amendment Effective Date, executed and delivered by an Authorized Officer of
Parent, substantially in the form of Exhibit F hereto, as amended,
supplemented, amended and restated or otherwise modified from time to time.


 


“Parent Notes” mean the Reddy Ice Holdings, Inc.
10.5% Senior Discount Notes due 2012, issued by Parent on October 27,
2004.


 


“Parent Notes Consent” is defined in the third
recital.


 


22





















 


“Participant” is defined in clause (d) of
Section 10.11.


 


“Participating Issuer” is defined in Section 2.6.6.


 


“Patent Security Agreement” means any Patent
Security Agreement executed and delivered by any Obligor, in substantially the
form of Exhibit A to any Security Agreement, as amended, supplemented,
amended and restated or otherwise modified from time to time.


 


“Patriot Act” is defined in Section 10.17.


 


“PBGC” means the Pension Benefit Guaranty
Corporation and any Person succeeding to any or all of its functions under
ERISA.


 


“Pension Plan” means a “pension plan”, as such
term is defined in Section 3(2) of ERISA, which is subject to
Title IV of ERISA (other than a multiemployer plan as defined in Section 4001(a)(3) of
ERISA), and to which the Borrower or any corporation, trade or business that
is, along with the Borrower, a member of a Controlled Group, may have
liability, including any liability by reason of having been a substantial
employer within the meaning of Section 4063 of ERISA at any time during
the preceding five years, or by reason of being deemed to be a contributing
sponsor under Section 4069 of ERISA.


 


“Percentage” means, as the context may
require, any Lender’s Revolving Loan Percentage or Term Percentage.


 


“Permitted Acquisition” means an acquisition
(whether pursuant to an acquisition of Capital Securities, assets or otherwise)
by the Borrower or any Subsidiary of a business, a line of business or an
operating lease from any Person in which the following conditions are
satisfied:


 


(a)           immediately before and after giving
effect to such acquisition no Default shall have occurred and be continuing or
would result therefrom (including under Section 7.2.1);


 


(b)           the Borrower shall have delivered to
the Administrative Agent a Compliance Certificate for the period of the most
recently completed four full Fiscal Quarters immediately preceding such
acquisition (prepared in good faith and in a manner and using such methodology
which is consistent with the most recent financial statements delivered
pursuant to Section 7.1.1) giving pro  forma effect to
the consummation of such acquisition and evidencing compliance with the
covenants set forth in Section 7.2.4 for the immediately preceding
test date;


 


(c)           if such acquisition is being made
with Cumulative Distributable Cash, the Borrower shall have delivered to the
Administrative Agent a certificate certifying the amount of Cumulative
Distributable Cash immediately before and after giving effect to such
acquisition; and


 


(d)           the Revolving Loan Commitment Amount less
the sum of (i) the amount of Letter of Credit Outstandings and (ii) the
aggregate outstanding principal amount of


 


23





















 


Revolving Loans and Swing line Loans on the date such
acquisition is consummated shall be at least $5,000,000.


 


“Permitted Holders” means (a) Trimaran
Fund Management, L.L.C., Trimaran Fund II, L.L.C., Trimaran Parallel Fund II,
L.P., Trimaran Capital, L.L.C., CIBC Employee Private Equity Fund (Trimaran)
Partners and CIBC MB Inc., (b) Bear Stearns Merchant Capital II, L.P.,
Bear Stearns Merchant Banking Partners II, L.P., Bear Stearns Merchant Banking
Investors II, L.P., Bear Stearns MB-PSERS II, L.P., The BSC Employee Fund III,
L.P. and the BSC Employee Fund IV, L.P., (c) any controlled Affiliate of
any Person referred to in clauses (a) or (b) above that
is organized by such Person primarily for the purpose of making equity or debt
investments in one or more Persons, (d) any officer or director of Parent or the Borrower who owns
common stock of Parent immediately after giving effect to the Merger and (e) any
Related Party. Except for a Permitted Holder specifically identified by name,
in determining whether Capital Securities or Voting Securities are owned by a Permitted Holder, only
Capital Securities and Voting Securities acquired by a Permitted Holder in its described capacity will be
treated as “beneficially owned” by such Permitted Holder.


 


“Person” means any natural person, corporation,
limited liability company, partnership, joint venture, association, trust or
unincorporated organization, Governmental Authority or any other legal entity,
whether acting in an individual, fiduciary or other capacity.


 


“Planned IPO” is defined in the third
recital.


 


“Pledged Subsidiary” means each Subsidiary in
respect of which the Administrative Agent has been granted a security interest
in or a pledge of (a) any of the Capital Securities of such Subsidiary or (b) any
intercompany notes of such Subsidiary owing to the Borrower or another
Subsidiary.


 


“Primary Syndication” means the period
commencing on or prior to the Amendment Effective Date and ending on the
earlier of (a) the date that is 15 days following the Amendment Effective
Date and (b) the date that the Lead Arrangers have declared the primary
syndication of the Credit Extensions to have ended.


 


“Proceeds Account” is defined in clause (d) of
Section 3.1.1.


 


“Quarterly Payment Date” means the last
Business Day of March, June, September and December.


 


“Rate Protection Agreement” means,
collectively, any interest rate swap, cap, collar or similar agreement entered
into by the Borrower or any of its Subsidiaries under which the counterparty of
such agreement is (or at the time such agreement was entered into, was) a
Lender or an Affiliate of a Lender.


 


“Reference Period” means, as at any date, the
period commencing on July 1, 2005 and ending on the last day of the most
recent Fiscal Quarter for which a Compliance Certificate pursuant to clause (c) of
Section 7.1.1 has been delivered by the Borrower prior to such
date;


 


24





















 


provided
that Interest Expense for the Fiscal Quarter ending September 30, 2005
shall be calculated to give pro  forma effect to the Transaction
as though it had occurred on July 1, 2005.


 


“Refinancing” is defined in the third
recital.


 


“Refunded Swing Line Loans” is defined in clause
(b) of Section 2.3.2.


 


“Register” is defined in clause (a) of
Section 2.7.


 


“Reimbursement Obligation” is defined in Section 2.6.3.


 


“Related Party” means (a) any controlling
stockholder, controlling member, general partner, majority owned Subsidiary, or
spouse or immediate family member (in the case of an individual) of any
Permitted Holder, (b) any estate, trust, corporation, partnership or other
entity, the beneficiaries, stockholders, partners, owners or Persons holding a
controlling interest of which consist solely of one or more Permitted Holders
and/or such other Persons referred to in clause (a), or (c) any
executor, administrator, trustee, manager, director or other similar fiduciary
of any Person referred to in the immediately preceding clause (b) acting
solely in such capacity.


 


“Release” means any release, spilling,
emitting, leaking, pumping, pouring, injecting, depositing, disposal,
discharge, dispersal, leaching, dumping or migration into or through the indoor
or outdoor environment.


 


“Replacement Lender” is defined in clause (g) of
Section 10.11.


 


“Replacement Notice” is defined in Section 4.10.


 


“Required Lenders” means, at any time, Lenders
holding more than 50% of the Total Exposure Amount.


 


“Resource Conservation and Recovery Act” means
the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq.,
as amended.


 


“Restricted Payment” means the declaration or
payment of any dividend (other than dividends payable solely in Capital
Securities of the Borrower or any Subsidiary) on, or the making of any payment
or distribution on account of, or setting apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of any class of Capital Securities of the Borrower or any
Subsidiary or any warrants or options to purchase any such Capital Securities
of the Borrower or such Subsidiary, whether now or hereafter outstanding, or
the making of any other distribution in respect thereof, either directly or
indirectly, whether in cash or property, obligations of the Borrower or any
Subsidiary or otherwise (other than distributions payable solely in Capital
Securities of the Borrower or any of its Subsidiaries).


 


“Revolving Loan Commitment” means, relative to
any Lender, such Lender’s obligation (if any) to make Revolving Loans pursuant
to clause (a) of Section 2.1.1.


 


25





















 


“Revolving Loan Commitment Amount” means, on
any date, $60,000,000, as such amount may be reduced from time to time pursuant
to Section 2.2.


 


“Revolving Loan Commitment Termination Date”
means the earliest of


 


(a)           the Stated Maturity Date;


 


(b)           the date on which the Revolving Loan
Commitment Amount is terminated in full or reduced to zero pursuant to the
terms of this Agreement; and


 


(c)           the date on which any Commitment
Termination Event occurs.


 


Upon the occurrence of any event described above, the
Revolving Loan Commitments shall terminate automatically and without any
further action.


 


“Revolving Loan Lender” is defined in clause
(a) of Section 2.1.1.


 


“Revolving Loan Percentage” means, relative to
any Lender, the applicable percentage relating to Revolving Loans set forth
opposite its name on Schedule II hereto under the Revolving Loan
Commitment column or set forth in a Lender Assignment Agreement under the Revolving
Loan Commitment column, as such percentage may be adjusted from time to time
pursuant to Lender Assignment Agreements executed by such Lender and its
assignee Lender and delivered pursuant to Section 10.11. A Lender
shall not have any Revolving Loan Commitment if its percentage under the
Revolving Loan Commitment column is zero.


 


“Revolving Loans” is defined in clause (a) of
Section 2.1.1.


 


“Revolving Note” means a promissory note of the
Borrower payable to any Revolving Loan Lender, in the form of Exhibit A-1
hereto (as such promissory note may be amended, endorsed or otherwise modified
from time to time), evidencing the aggregate Indebtedness of the Borrower to
such Revolving Loan Lender resulting from outstanding Revolving Loans, and also
means all other promissory notes accepted from time to time in substitution
therefor or renewal thereof.


 


“S&P” means Standard & Poor’s
Rating Services, a division of The McGraw-Hill Companies, Inc.


 


“SEC” means the Securities and Exchange
Commission.


 


“Secured Parties” means, collectively, the
Lenders, the Issuers, the Administrative Agent, the Syndication Agent, each
counterparty to a Rate Protection Agreement that is (or at the time such Rate
Protection Agreement was entered into, was) a Lender or an Affiliate thereof,
and, in each case, each of their respective successors, transferees and
assigns.


 


“Security Agreement” means, as the context may
require, the Borrower Pledge and Security Agreement and the Subsidiary Pledge
and Security Agreement.


 


26





















 


“Significant Subsidiary” means each Subsidiary
of the Borrower that (a) accounted for at least 3% of the consolidated
gross revenues of the Borrower and its Subsidiaries or (b) has assets
which represent at least 3% of the consolidated gross assets of the Borrower
and its Subsidiaries, in each case, as of the last day of the most recently
completed Fiscal Quarter with respect to which, pursuant to clauses (a) and
(b) of Section 7.1.1, financial statements have been,
or are required to have been, delivered by the Borrower on or before the date
as of which any such determination is made, as reflected in such financial
statements.


 


“Solvent” means, with respect to any Person and
its Subsidiaries on a particular date, that on such date (a) the fair
value of the property of such Person and its Subsidiaries on a consolidated
basis is greater than the total amount of liabilities, including contingent
liabilities, of such Person and its Subsidiaries on a consolidated basis, (b) the
present fair salable value of the assets of such Person and its Subsidiaries on
a consolidated basis is not less than the amount that will be required to pay
the probable liability of such Person and its Subsidiaries on a consolidated
basis on its debts as they become absolute and matured, (c) such Person
does not intend to, and does not believe that it or its Subsidiaries will,
incur debts or liabilities beyond the ability of such Person and its
Subsidiaries to pay as such debts and liabilities mature, and (d) such
Person and its Subsidiaries on a consolidated basis are not engaged in a
business or a transaction, and such Person and its Subsidiaries on a
consolidated basis are not about to engage in a business or a transaction, for
which the property of such Person and its Subsidiaries on a consolidated basis
would constitute an unreasonably small capital. The amount of Contingent
Liabilities at any time shall be computed as the amount that, in light of all
the facts and circumstances existing at such time, can reasonably be expected
to become an actual or matured liability.


 


“Specified Asset Sales” means a Disposition of
any of the assets and/or Capital Securities of Cassco Ice and Cold Storage Inc.
and/or Southern Bottled Water, Inc. in one transaction or any series of
transactions.


 


“Sponsors” means, collectively, Trimaran Fund
Management, L.L.C., Bear Stearns Merchant Manager II, LLC and their respective
successors and Affiliates.


 


“Stated Amount” means, on any date and with
respect to a particular Letter of Credit, the total amount then available to be
drawn under such Letter of Credit.


 


“Stated Expiry Date” is defined in Section 2.6.


 


“Stated Maturity Date” means (a) with
respect to all Initial Term Loans, the seventh anniversary of the Amendment
Effective Date, (b) with respect to all Revolving Loans and Swing Line
Loans, the fifth anniversary of the Amendment Effective Date and (c) in
the case of any Incremental Term Loan, the date set forth in the agreement
pursuant to which the applicable Lenders agreed to provide the Incremental Term
Commitment in respect of such Incremental Term Loan.


 


“Subordinated Notes” means the Borrower’s 87/8
% senior subordinated notes due 2011, as amended, supplemented, amended and
restated or otherwise modified from time to time.


 


27





















 


“Subordinated Note Payment” is defined in the third
recital.


 


“Subsidiary” means, with respect to any Person,
any other Person of which more than 50% of the outstanding Voting Securities of
such other Person (irrespective of whether at the time Capital Securities of
any other class or classes of such other Person shall or might have voting
power upon the occurrence of any contingency) is at the time directly or
indirectly owned or controlled by such Person, by such Person and one or more
other Subsidiaries of such Person, or by one or more other Subsidiaries of such
Person. Unless the context otherwise specifically requires, the term “Subsidiary”
shall be a reference to a Subsidiary of the Borrower.


 


“Subsidiary Guarantor” means each Subsidiary
that has executed and delivered to the Administrative Agent the Subsidiary
Guaranty.


 


“Subsidiary Guaranty” means the subsidiary
guaranty, dated as of the Original Closing Date, executed and delivered by an
Authorized Officer of each U.S. Subsidiary pursuant to the terms of the
Existing Credit Agreement, a conformed copy of which is attached as Exhibit G
hereto, as amended, supplemented, amended and restated or otherwise modified
from time to time.


 


“Subsidiary Pledge and Security Agreement”
means the Pledge and Security Agreement, dated as of the Original Closing Date,
executed and delivered by each U.S. Subsidiary of the Borrower pursuant to the
terms of the Existing Credit Agreement, a conformed copy of which is attached
as of Exhibit I hereto, together with any supplemental Foreign
Pledge Agreements delivered pursuant to the terms of this Agreement after the
Original Closing Date, in each case as amended, supplemented, amended and
restated or otherwise modified from time to time.


 


“Substitute Lender” is defined in Section 4.10.


 


“Swing Line Lender” means, subject to the terms
of this Agreement, Credit Suisse.


 


“Swing Line Loans” is defined in clause (b) of
Section 2.1.1.


 


“Swing Line Loan Commitment” is defined in clause
(b) of Section 2.1.1.


 


“Swing Line Loan Commitment Amount” means, on
any date, $10,000,000, as such amount may be reduced from time to time pursuant
to Section 2.2.


 


“Swing Line Note” means a promissory note of
the Borrower payable to the Swing Line Lender, in the form of Exhibit A-3
hereto (as such promissory note may be amended, endorsed or otherwise modified
from time to time), evidencing the aggregate Indebtedness of the Borrower to
the Swing Line Lender resulting from outstanding Swing Line Loans, and also
means all other promissory notes accepted from time to time in substitution
therefor or renewal thereof.


 


“Syndication Agent” is defined in the preamble.


 


28





















 


“Synthetic Lease” means, as applied to any
Person, any lease (including leases that may be terminated by the lessee at any
time) of any property (whether real, personal or mixed) (a) that is not a
capital lease in accordance with GAAP and (b) in respect of which the
lessee retains or obtains ownership of the property so leased for federal
income tax purposes, other than any such lease under which that Person is the
lessor.


 


“Tax Returns” means any return, report or
similar statement required to be filed with respect to any Tax (including any
attached schedules) including any informational return, claim for refund,
amended return or declaration of estimated Tax.


 


“Tax Sharing Agreement” means the tax sharing
agreement, dated as of the Original Closing Date, among Parent and the
Borrower, in form and substance reasonably satisfactory to the Lead Arrangers,
as amended, supplemented, amended and restated or otherwise modified from time
to time.


 


“Taxes” means all income, stamp or other taxes,
duties, levies, imposts, charges, assessments, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, and all interest, penalties or similar
liabilities with respect thereto.


 


“Term Loans” means, collectively, the Initial
Term Loans and any Incremental Term Loans.


 


“Term Note” means a promissory note of the
Borrower payable to any Lender, in the form of Exhibit A-2 hereto
(as such promissory note may be amended, endorsed or otherwise modified from
time to time), evidencing the aggregate Indebtedness of the Borrower to such
Lender resulting from outstanding Term Loans, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.


 


“Term Percentage” means, relative to any
Lender, the applicable percentage relating to Term Loans set forth opposite its
name on Schedule II hereto under the Initial Term Loan Commitment
column or Incremental Term Loan Commitment column or set forth in a Lender
Assignment Agreement under the Initial Term Loan Commitment column or
Incremental Term Loan Commitment column, as such percentage may be adjusted
from time to time pursuant to Lender Assignment Agreements executed by such
Lender and its assignee Lender and delivered pursuant to Section 10.11.


 


“Termination Date” means the date on which all
Obligations have been paid in full in cash, all Letters of Credit have been
terminated or expired (or been Cash Collateralized), all Rate Protection
Agreements have been terminated and all Commitments shall have terminated; provided,
that as used in this Agreement only, the occurrence of the “Termination Date”
shall not require the termination of Rate Protection Agreements.


 


“Total Debt” means, on any date, the
outstanding principal amount of all Indebtedness of the Borrower and its
Subsidiaries of the type referred to in clause (a) (which, in the
case of the Revolving Loans and Swing Line Loans, shall be deemed to equal the
average daily amount of the Revolving Loans and Swing Line Loans outstanding
for the Fiscal Quarter ending on or


 


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immediately preceding the
date of determination), clause (c) and clause (g), in each
case of the definition of “Indebtedness” (exclusive of intercompany
Indebtedness between the Borrower and its Subsidiaries) and, without
duplication, any Contingent Liability in respect of any of the foregoing less
amounts on deposit in the Proceeds Account on such date.


 


“Total Exposure Amount” means, on any date of
determination (and without duplication), the outstanding principal amount of
all Loans, the aggregate amount of all Letter of Credit Outstandings and the
unfunded amount of the Commitments.


 


“Trademark Security Agreement” means any
Trademark Security Agreement executed and delivered by any Obligor, in
substantially in the form of Exhibit B to any Security Agreement, as
amended, supplemented, amended and restated or otherwise modified from time to
time.


 


“Transaction” is defined in the third
recital.


 


“Transaction Adjustments” means the fees and
expenses incurred in connection with consummating the Transaction, the issuance
of the Parent Notes, the consent solicitation relating to the Parent Notes, the
fees, expenses and prepayment penalties and call or tender premiums associated
with retirement of Indebtedness (including repurchasing the Subordinated
Notes), management transaction bonuses, the Monitoring Agreement Buyout
Payment, and any legal, advisory and other fees and expenses incurred by the
Borrower in connection with consummating the Transaction and such related
transactions and with assisting certain shareholders of Parent in conducting a
secondary offering of Parent’s Capital Securities in conjunction with the
Planned IPO, such Transaction Adjustments in an aggregate amount not to exceed
$50,000,000.


 


“Transaction Documents” means, collectively,
all agreements furnished pursuant to or in connection with the Planned IPO, in
each case as amended, supplemented, amended and restated or otherwise modified
from time to time.


 


“type” means, relative to any Loan, the portion
thereof, if any, being maintained as a Base Rate Loan or a LIBO Rate Loan.


 


“UCC” means the Uniform Commercial Code as in
effect from time to time in the State of New York; provided that if,
with respect to any Filing Statement or by reason of any provisions of law, the
perfection or the effect of perfection or non-perfection of the security
interests granted to the Administrative Agent pursuant to the applicable Loan
Document is governed by the Uniform Commercial Code as in effect in a
jurisdiction of the United States other than New York, then “UCC” means the
Uniform Commercial Code as in effect from time to time in such other
jurisdiction for purposes of the provisions of each Loan Document and any
Filing Statement relating to such perfection or effect of perfection or non-perfection.


 


“Unaudited Quarterly Financial Statements” is
defined in clause (a) of Section 7.1.1.


 


“United States” or “U.S.” means the
United States of America, its fifty states and the District of Columbia.


 


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“U.S. Subsidiary” means any Subsidiary that is
incorporated or organized under the laws of the United States or a state
thereof or the District of Columbia.


 


“Voting Securities” means, with respect to any
Person, Capital Securities of any class or kind ordinarily having the power to
vote for the election of directors, managers or other voting members of the
governing body of such Person.


 


“wholly owned Subsidiary” means any Subsidiary
all of the outstanding Capital Securities of which (other than any director’s
qualifying shares or investments by foreign nationals mandated by applicable
laws) is owned directly or indirectly by the Borrower.


 


SECTION 1.2. 
Use of Defined Terms. 
Unless otherwise defined or the context otherwise requires, terms for
which meanings are provided in this Agreement shall have such meanings when
used in each other Loan Document and the Disclosure Schedule.


 


SECTION 1.3. 
Cross-References.  Unless
otherwise specified, references in a Loan Document to any Article or Section are
references to such Article or Section of such Loan Document, and
references in any Article, Section or definition to any clause are
references to such clause of such Article, Section or definition.


 


SECTION 1.4. 
Accounting and Financial Determinations.


 


(a)                                  Unless
otherwise specified, all accounting terms used in each Loan Document shall be
interpreted, and all accounting determinations and computations thereunder
(including under Section 7.2.4 and the definitions used in such
calculations) shall be made, in accordance with GAAP.  Unless otherwise expressly provided, all
financial covenants and defined financial terms shall be computed on a
consolidated basis for the Borrower and its Subsidiaries, in each case without
duplication.


 


(b)                                 As
of any date of determination, for purposes of determining the Interest Coverage
Ratio and the Leverage Ratio, (and any financial calculations required to be
made or included within such ratios, or required for purposes of preparing any
Compliance Certificate to be delivered pursuant to clause (b) of
the definition of “Permitted Acquisition”), the calculation of such ratios and
other financial calculations shall include or exclude, as the case may be, the
effect of any business, line of business or operating lease that has been acquired
or disposed of by the Borrower or any of its Subsidiaries pursuant to the terms
hereof (including through mergers or consolidations) as of such date of
determination, as determined by the Borrower on a pro  forma
basis, which determination may include one-time adjustments or reductions in
costs, if any, directly attributable to any such disposition or acquisition, as
the case may be, in each case (i) calculated in accordance with Regulation
S-X of the Securities Act of 1933, as amended, for the period of four Fiscal
Quarters ended on or immediately prior to the date of determination of any such
ratios and (ii) giving effect to any such acquisition or disposition as if
it had occurred on the first day of such four Fiscal Quarter period.


 


(c)                                  If
the Borrower or any Lead Arranger determines that a change in GAAP has altered
the treatment of certain financial data to its detriment under this Agreement,


 


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such party may, by written notice to the Lead Arrangers
not later than 60 days after the end of the Fiscal Quarter during which such
change in GAAP becomes effective, request renegotiation of the financial
covenants affected by such change.  If
the Borrower and the Required Lenders have not agreed on revised covenants
within thirty days after delivery of such notice, then, for purposes of this
Agreement, GAAP will have the meaning set forth in clause (a) of
the definition of “GAAP”.


 


ARTICLE II

COMMITMENTS, BORROWING AND ISSUANCE

PROCEDURES, NOTES AND LETTERS OF CREDIT


 


SECTION 2.1. 
Commitments.  On the terms
and subject to the conditions of this Agreement, the Lenders and the Issuers
severally agree to make Credit Extensions as set forth below.


 


SECTION 2.1.1.  Revolving Loans and Swing Line Loans.  From time to time on any Business Day
occurring from and after the Amendment Effective Date until five Business Days
prior to the Revolving Loan Commitment Termination Date,


 


(a)                                  each
Lender that has a Revolving Loan Commitment (referred to as a “Revolving
Loan Lender”), agrees that it will make loans (relative to such Lender, its
“Revolving Loans”) to the Borrower equal to such Lender’s Revolving Loan
Percentage of the aggregate amount of each Borrowing of the Revolving Loans
requested by the Borrower to be made on such day; and


 


(b)                                 the
Swing Line Lender agrees that it will make loans (its “Swing Line Loans”)
to the Borrower equal to the principal amount of the Swing Line Loan requested
by the Borrower to be made on such day. 
The Commitment of the Swing Line Lender described in this clause is
herein referred to as its “Swing Line Loan Commitment”.


 


On the Amendment Effective Date the Borrower shall
voluntarily prepay all Existing Revolving Loans from the proceeds of Revolving
Loans made on the Amendment Effective Date. 
On the terms and subject to the conditions hereof, the Borrower may from
time to time borrow, prepay and reborrow Revolving Loans and Swing Line
Loans.  No Revolving Loan Lender shall be
permitted or required to make any Revolving Loan if, after giving effect
thereto, the aggregate outstanding principal amount of all Revolving Loans of
such Revolving Loan Lender, together with such Lender’s Revolving Loan
Percentage of the aggregate amount of all Swing Line Loans and Letter of Credit
Outstandings, would exceed such Lender’s Revolving Loan Percentage of the then
existing Revolving Loan Commitment Amount. 
Furthermore, the Swing Line Lender shall not be permitted or required to
make Swing Line Loans if, after giving effect thereto, (i) the aggregate outstanding
principal amount of all Swing Line Loans would exceed the then existing Swing
Line Loan Commitment Amount or (ii) unless otherwise agreed to by the
Swing Line Lender, in its sole discretion, the sum of all Swing Line Loans and
Revolving Loans made by the Swing Line Lender plus the Swing Line Lender’s
Revolving Loan Percentage of the aggregate


 


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amount of Letter of Credit Outstandings would exceed
the Swing Line Lender’s Revolving Loan Percentage of the then existing
Revolving Loan Commitment Amount.


 


SECTION 2.1.2.  Letters of Credit.  Each of the parties hereto acknowledges and
agrees that the Existing Letters of Credit shall continue as Letters of Credit
for all purposes under this Agreement and the Loan Documents and shall be
deemed to have been issued on the Amendment Effective Date.  From time to time on any Business Day
occurring from and after the Amendment Effective Date until thirty days prior
to the Revolving Loan Commitment Termination Date, the relevant Issuer agrees
that it will


 


(a)                                  issue
one or more standby letters of credit (relative to such Issuer, its “Letter
of Credit”) for the account of the Borrower or any Subsidiary Guarantor in
the Stated Amount requested by the Borrower on such day; or


 


(b)                                 extend
the Stated Expiry Date of an existing standby Letter of Credit previously
issued hereunder.


 


No Stated Expiry Date shall extend beyond the earlier
of (i) five Business Days prior to the Revolving Loan Commitment
Termination Date and (ii) unless otherwise agreed to by the Issuer in its
sole discretion, one year from the date of such extension.  No Issuer shall be permitted or required to
issue any Letter of Credit if, after giving effect thereto, (i) the
aggregate amount of all Letter of Credit Outstandings would exceed the Letter
of Credit Commitment Amount or (ii) the sum of the aggregate amount of all
Letter of Credit Outstandings plus the aggregate principal amount of all
Revolving Loans and Swing Line Loans then outstanding would exceed the
Revolving Loan Commitment Amount.


 


SECTION 2.1.3.  Initial Term Loans.  Each Lender with a Commitment to make Initial
Term Loans severally agrees to make loans (relative to such Lender, its “Initial
Term Loan”) to the Borrower on the Amendment Effective Date, in a principal
amount not to exceed its Initial Term Loan Commitment on the Amendment
Effective Date.  In the event that the
Borrower requests Initial Term Loans in an aggregate amount (the “Aggregate
Initial Term Loan Amount”) less than the aggregate of the Lenders’ Initial
Term Loan Commitments, each such Lender shall make an Initial Term Loan to the
Borrower in an amount equal to the Aggregate Initial Term Loan Amount
multiplied by such Lender’s Term Percentage. 
On the Amendment Effective Date the Borrower shall voluntarily prepay
all Existing Term Loans from a portion of the proceeds of the Initial Term
Loans.


 


SECTION 2.1.4.  Incremental Term Loans.


 


(a)                                  At
any time that no Default has occurred and is continuing, the Borrower may
notify the Administrative Agent that the Borrower is requesting that, on the
terms and subject to the conditions contained in this Agreement, the Lenders
and/or other lenders not then a party to this Agreement provide up to an
aggregate amount of $80,000,000 in additional commitments (any such commitment,
an “Incremental Term Loan Commitment”) to make incremental term loans
(relative to such Lender or other lenders, its “Incremental Term Loan”);
provided that no Incremental Term Loan shall (i) require any
scheduled payment of principal (excluding, for the avoidance of doubt,


 


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mandatory prepayments set forth in Section 3.1.1)
prior to the Stated Maturity Date for Initial Term Loans or (ii) have a
Stated Maturity Date that is prior to the Stated Maturity Date for Initial Term
Loans.  Upon receipt of such notice, the
Administrative Agent shall use commercially reasonable efforts to arrange for
the Lenders or other Eligible Assignees to provide such Incremental Term Loan
Commitments; provided  that nothing contained in this Section or
otherwise in this Agreement is intended to commit any Lender or any Agent to
provide any portion of any such Incremental Term Loan Commitments.


 


(b)                                 If
and to the extent that any Lenders and/or other lenders agree, in their sole
discretion, to provide any such Incremental Term Loan Commitments, on any date
on or prior to the Incremental Term Loan Commitment Termination Date with
respect to any Incremental Term Loan Commitment, each Lender that has a
Percentage in excess of zero of such Incremental Term Loan Commitment will make
an Incremental Term Loan to the Borrower equal to such Lender’s Percentage of
the aggregate Borrowing or Borrowings of Incremental Term Loans requested by
the Borrower to be made on such date pursuant to such Incremental Term Loan
Commitment.


 


(c)                                  In
furtherance thereof, the Borrower and the Administrative Agent shall make
conforming amendments to the provisions of this Agreement to provide for such
Incremental Term Loans on the terms agreed between the Borrower and the Lenders
that agreed to provide the Incremental Term Loan Commitments pursuant to which
such Incremental Term Loans were made and the Borrower shall execute and
deliver any additional Notes, other amendments or modifications to any Loan
Document, and any other certificates, consents or legal opinions as the
Administrative Agent may reasonably request.


 


SECTION 2.2. 
Reductions in Commitment Amounts. 
The Commitment Amounts are subject to reduction from time to time as set
forth below.


 


SECTION 2.2.1.  Reductions.  (a) The Borrower may, from time to time
on any Business Day occurring after the Amendment Effective Date, voluntarily
reduce the amount of the Revolving Loan Commitment Amount, the Swing Line Loan Commitment
Amount or the Letter of Credit Commitment Amount on the Business Day so
specified by the Borrower; provided that all such reductions shall
require at least one Business Day’s prior notice to the Administrative Agent
(which notice may be telephonic so long as such notice is confirmed in writing
within 24 hours thereafter) and be permanent, and any partial reduction of any
Commitment Amount shall be in a minimum amount of $5,000,000 and in an integral
multiple of $1,000,000.  Any optional or
mandatory reduction of the Revolving Loan Commitment Amount pursuant to the
terms of this Agreement which reduces the Revolving Loan Commitment Amount
below the sum of (i) the Swing Line Loan Commitment Amount and (ii) the
Letter of Credit Commitment Amount shall result in an automatic and pro rata
reduction of the Swing Line Loan Commitment Amount and/or Letter of Credit
Commitment Amount (as directed by the Borrower in a notice to the
Administrative Agent delivered together with the notice of such voluntary reduction
in the Revolving Loan Commitment Amount) to an aggregate amount not in excess
of the Revolving


 


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Loan Commitment
Amount, as so reduced, without any further action on the part of the Swing Line
Lender or any Issuer.


 


SECTION 2.2.2.  Mandatory.  Following the prepayment in full of the Term
Loans, the Revolving Loan Commitment Amount shall, without any further action,
automatically and permanently be reduced on the date the Term Loans would
otherwise have been required to be prepaid pursuant to clauses (c), (d) or
(e) of Section 3.1.1 in an amount equal to the amount
by which the Term Loans would otherwise be required to be prepaid if Term Loans
had been outstanding.


 


SECTION 2.3. 
Borrowing Procedures.  Loans (other than Swing Line Loans) shall be
made by the Lenders in accordance with Section 2.3.1, and Swing
Line Loans shall be made by the Swing Line Lender in accordance with Section 2.3.2.


 


SECTION 2.3.1.  Borrowing Procedure.  In the case of Loans other than Swing Line
Loans, by telephonic notice to the Administrative Agent on or before
12:00 noon on a Business Day (followed (within one Business Day) by the
delivery of a confirming Borrowing Request), the Borrower may from time to time
irrevocably request, on the same Business Day in the case of Base Rate Loans or
on not less than three Business Days’ notice in the case of LIBO Rate Loans,
and in either case not more than five Business Days’ notice, that a Borrowing
be made, in the case of LIBO Rate Loans, in a minimum amount of $2,000,000 and
an integral multiple of $1,000,000, or in the case of Base Rate Loans, in a
minimum amount of $1,000,000 and an integral multiple of $500,000 or, in either
case, in the unused amount of the applicable Commitment.  On the terms and subject to the conditions of
this Agreement, each Borrowing shall be comprised of the type of Loans, and
shall be made on the Business Day, specified in such Borrowing Request.  In the case of Loans other than Swing Line
Loans, on or before 3:00 p.m. on such Business Day each Lender that has a
Commitment to make the Loans being requested shall deposit with the
Administrative Agent same day funds in an amount equal to such Lender’s
Percentage of the requested Borrowing. 
Such deposit will be made to an account which the Administrative Agent
shall specify from time to time by notice to the Lenders.  To the extent funds are received from the
Lenders, the Administrative Agent shall make such funds available to the
Borrower by wire transfer to the accounts the Borrower shall have specified in
its Borrowing Request.  No Lender’s
obligation to make any Loan shall be affected by any other Lender’s failure to
make any Loan.


 


SECTION 2.3.2.  Swing Line Loans; Participations, etc.  (a)  By telephonic notice to the Swing
Line Lender on or before 12:00 noon on a Business Day (followed (within
one Business Day) by the delivery of a confirming Borrowing Request), the
Borrower may from time to time irrevocably request that Swing Line Loans be
made by the Swing Line Lender in an aggregate minimum principal amount of
$250,000 and an integral multiple of $50,000. 
All Swing Line Loans shall be made as Base Rate Loans and shall not be
entitled to be converted into LIBO Rate Loans. 
The proceeds of each Swing Line Loan shall be made available by the
Swing Line Lender to the Borrower by wire transfer to the account the Borrower
shall have specified in its notice therefor by the close of business on the
Business Day telephonic notice is received by the Swing Line Lender.  Upon the making of each Swing Line Loan, and
without further action on the part of the Swing Line Lender or any other
Person, each Revolving Loan Lender (other than


 


35





















 


the Swing Line
Lender) shall be deemed to have irrevocably purchased, to the extent of its
Revolving Loan Percentage, a participation interest in such Swing Line Loan,
and such Revolving Loan Lender shall, to the extent of its Revolving Loan
Percentage, be responsible for reimbursing within one Business Day of receiving
notice thereof the Swing Line Lender for Swing Line Loans which have not been
reimbursed by the Borrower in accordance with the terms of this Agreement.


 


(b)                                 If
any Default shall occur and be continuing, then each Revolving Loan Lender
(other than the Swing Line Lender) irrevocably agrees that it will, at the
request of the Swing Line Lender, make a Revolving Loan (which shall initially
be funded as a Base Rate Loan) in an amount equal to such Lender’s Revolving
Loan Percentage of the aggregate principal amount of all such Swing Line Loans
then outstanding (such outstanding Swing Line Loans hereinafter referred to as
the “Refunded Swing Line Loans”). 
On or before 11:00 a.m. on the first Business Day following receipt
by each Revolving Loan Lender of a request to make Revolving Loans as provided
in the preceding sentence, each Revolving Loan Lender shall deposit in an
account specified by the Swing Line Lender the amount so requested in same day
funds and such funds shall be applied by the Swing Line Lender to repay the
Refunded Swing Line Loans.  At the time
the Revolving Loan Lenders make the above referenced Revolving Loans, the Swing
Line Lender shall be deemed to have made, in consideration of the making of the
Refunded Swing Line Loans, Revolving Loans in an amount equal to the Swing Line
Lender’s Revolving Loan Percentage of the aggregate principal amount of the
Refunded Swing Line Loans.  Upon the
making (or deemed making, in the case of the Swing Line Lender) of any Revolving
Loans pursuant to this clause, the amount so funded shall become an outstanding
Revolving Loan and shall no longer be owed as a Swing Line Loan.  All interest payable with respect to any
Revolving Loans made (or deemed made, in the case of the Swing Line Lender)
pursuant to this clause shall be appropriately adjusted to reflect the period
of time during which the Swing Line Lender had outstanding Swing Line Loans in
respect of which such Revolving Loans were made.  Each Revolving Loan Lender’s obligation to
make the Revolving Loans referred to in this clause shall be absolute and
unconditional and shall not be affected by any circumstance, including (i) any
set-off, counterclaim, recoupment, defense or other right which such Lender may
have against the Swing Line Lender, any Obligor or any Person for any reason
whatsoever; (ii) the occurrence or continuance of any Default; (iii) any
adverse change in the condition (financial or otherwise) of any Obligor; (iv) the
acceleration or maturity of any Obligations or the termination of any
Commitment after the making of any Swing Line Loan; (v) any breach of any
Loan Document by any Person; or (vi) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.


 


SECTION 2.4. 
Continuation and Conversion Elections.  By telephonic notice to the Administrative
Agent on or before 12:00 noon on a Business Day (followed (within one
Business Day) by the delivery of a confirming Continuation/Conversion Notice),
the Borrower may from time to time irrevocably elect, on not less than one
Business Day’s notice in the case of Base Rate Loans, or three Business Days’
notice in the case of LIBO Rate Loans, and in either case not more than five
Business Days’ notice, that all, or any portion in an aggregate minimum


 


36





















 


amount of
$2,000,000 and an integral multiple of $500,000 be, in the case of Base Rate
Loans, converted into LIBO Rate Loans or be, in the case of LIBO Rate Loans,
converted into Base Rate Loans or continued as LIBO Rate Loans (in the absence
of delivery of a Continuation/Conversion Notice with respect to any LIBO Rate
Loan at least three Business Days (but not more than five Business Days) before
the last day of the then current Interest Period with respect thereto, such
LIBO Rate Loan shall, on such last day, automatically convert to a Base Rate
Loan); provided that (x) each such conversion or continuation shall
be pro rated among the applicable outstanding Loans of all Lenders that have
made such Loans, and (y) no portion of the outstanding principal amount of
any Loans may be continued as, or be converted into, LIBO Rate Loans when any
Default has occurred and is continuing.


 


SECTION 2.5. 
Funding.  Each Lender may,
if it so elects, fulfill its obligation to make, continue or convert LIBO Rate
Loans hereunder by causing one of its foreign branches or Affiliates (or an
international banking facility created by such Lender) to make or maintain such
LIBO Rate Loan; provided that such LIBO Rate Loan shall nonetheless be
deemed to have been made and to be held by such Lender, and the obligation of
the Borrower to repay such LIBO Rate Loan shall nevertheless be to such Lender
for the account of such foreign branch, Affiliate or international banking
facility.  In addition, the Borrower
hereby consents and agrees that, for purposes of any determination to be made
for purposes of Sections 4.1, 4.2, 4.3 or 4.4, it
shall be conclusively assumed that each Lender elected to fund all LIBO Rate
Loans by purchasing Dollar deposits in its LIBOR Office’s interbank eurodollar
market.


 


SECTION 2.6. 
Issuance Procedures.  By
delivering to an Issuer, with a copy to the Administrative Agent, an Issuance
Request on or before 10:00 a.m. on a Business Day, the Borrower may from
time to time irrevocably request on not less than three nor more than ten
Business Days’ notice, in the case of an initial issuance of a Letter of Credit
and not less than three Business Days’ prior notice, in the case of a request for
the extension of the Stated Expiry Date of a standby Letter of Credit (in each
case, unless a shorter notice period is agreed to by the Issuer, in its sole
discretion), that an Issuer issue, or extend the Stated Expiry Date of, a
Letter of Credit in such form as may be requested by the Borrower and approved
by such Issuer, solely for the purposes described in Section 7.1.7.  Each Letter of Credit shall by its terms be
stated to expire on a date (its “Stated Expiry Date”) no later than the
earlier to occur of (i) five Business Days prior to the Revolving Loan
Commitment Termination Date or (ii) (unless otherwise agreed to by an
Issuer, in its sole discretion), one year from the date of its
issuance.  Each Issuer will make
available to the beneficiary thereof the original of the Letter of Credit which
it issues.


 


SECTION 2.6.1.  Other Lenders Participation.  Upon the issuance of each Letter of Credit,
and without further action, each Revolving Loan Lender (other than the Issuer)
shall be deemed to have irrevocably purchased, to the extent of its Revolving
Loan Percentage, a participation interest in such Letter of Credit (including
the contingent liability of such Issuer and the right to receive any
Reimbursement Obligation with respect thereto), and such Revolving Loan Lender
shall, to the extent of its Revolving Loan Percentage, be responsible for
reimbursing the applicable Issuer within one Business Day of receiving (a) notice
from the Issuer that such Reimbursement Obligations have not been reimbursed by
the Borrower in accordance with Section 2.6.3 or (b) notice
from the Administrative Agent (who will have received such notice from the
Borrower) that the Borrower intends to refinance such Reimbursement


 


37





















 


Obligation with a
Revolving Loan.  In addition, such
Revolving Loan Lender shall, to the extent of its Revolving Loan Percentage, be
entitled to receive a ratable portion of the Letter of Credit fees payable
pursuant to Section 3.3.3 with respect to each Letter of Credit
(other than the issuance fees payable to the Issuer of such Letter of Credit
pursuant to the last sentence of Section 3.3.3) and of interest
payable pursuant to Section 3.2 with respect to any Reimbursement
Obligation.  To the extent that any
Revolving Loan Lender has reimbursed any Issuer for a Disbursement, such Lender
shall be entitled to receive its ratable portion of any amounts subsequently
received (from the Borrower or otherwise) in respect of such Disbursement.


 


SECTION 2.6.2.  Disbursements.  An Issuer will notify the Borrower and the
Administrative Agent promptly of the presentment for payment of any Letter of
Credit issued by such Issuer, together with notice of the date (the “Disbursement
Date”) such payment shall be made (each such payment, a “Disbursement”).  Subject to the terms and provisions of such
Letter of Credit and this Agreement, the applicable Issuer shall make such
payment to the beneficiary (or its designee) of such Letter of Credit.  Prior to 12:00 noon on the first
Business Day following the Disbursement Date, the Borrower will (a) deliver
a Borrowing Notice to the Administrative Agent in order to refinance such
Reimbursement Obligation with a Revolving Loan accruing at the Base Rate or (b) reimburse
the applicable Issuer, for all amounts which such Issuer has disbursed under
such Letter of Credit, together with interest thereon at a rate per annum equal
to the rate per annum then in effect for Base Rate Loans (with the then
Applicable Margin for Revolving Loans accruing on such amount) pursuant to Section 3.2
for the period from the Disbursement Date through the date of such
reimbursement.  Without limiting in any
way the foregoing and notwithstanding anything to the contrary contained herein
or in any separate application for any Letter of Credit, the Borrower hereby
acknowledges and agrees that it shall be obligated to reimburse the applicable
Issuer upon each Disbursement of a Letter of Credit, and it shall be deemed to
be the obligor for purposes of each such Letter of Credit issued hereunder
(whether the account party on such Letter of Credit is the Borrower or a
Subsidiary Guarantor).


 


SECTION 2.6.3.  Reimbursement.  The obligation (a “Reimbursement
Obligation”) of the Borrower under Section 2.6.2 to reimburse
an Issuer with respect to each Disbursement (including interest thereon), and,
upon the failure of the Borrower to reimburse an Issuer, each Revolving Loan
Lender’s obligation under Section 2.6.1 to reimburse an Issuer,
shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which the
Borrower or such Revolving Loan Lender, as the case may be, may have or have
had against such Issuer or any Lender, including any defense based upon the
failure of any Disbursement to conform to the terms of the applicable Letter of
Credit (if, in such Issuer’s good faith opinion, such Disbursement is
determined to be appropriate) or any non-application or misapplication by the
beneficiary of the proceeds of such Letter of Credit; provided that
after paying in full its Reimbursement Obligation hereunder, nothing herein
shall adversely affect the right of the Borrower or such Lender, as the case
may be, to commence any proceeding against an Issuer for any wrongful
Disbursement made by such Issuer under a Letter of Credit as a result of acts
or omissions constituting gross negligence or willful misconduct on the part of
such Issuer.


 


38





















 


SECTION 2.6.4.  Deemed Disbursements.  Upon the occurrence and during the
continuation of any Event of Default under Section 8.1.9 or upon
notification by the Administrative Agent (acting at the direction of the
Required Lenders) to the Borrower of its obligations under this Section,
following the occurrence and during the continuation of any other Event of
Default,


 


(a)                                  the
aggregate Stated Amount of all Letters of Credit shall, without demand upon or
notice to the Borrower or any other Person, be deemed to have been paid or disbursed
by the Issuers of such Letters of Credit (notwithstanding that such amount may
not in fact have been paid or disbursed); and


 


(b)                                 the
Borrower shall be immediately obligated to deposit (in the manner described
below) an amount deemed to have been so paid or disbursed by such Issuers.


 


Amounts payable by the Borrower pursuant to this Section shall
be deposited in immediately available funds with the Administrative Agent and
held as collateral security for the Reimbursement Obligations.  When all Events of Defaults giving rise to
the deemed disbursements under this Section have been cured or waived the
Administrative Agent shall return to the Borrower all amounts then on deposit
with the Administrative Agent pursuant to this Section which have not been
applied to the satisfaction of the Reimbursement Obligations.


 


SECTION 2.6.5.  Nature of Reimbursement Obligations.  The Borrower, each other Obligor and, to the
extent set forth in Section 2.6.1, each Revolving Loan Lender shall
assume all risks of the acts, omissions or misuse of any Letter of Credit by
the beneficiary thereof.  No Issuer
(except to the extent of its own gross negligence or willful misconduct) shall
be responsible for:


 


(a)                                  the
form, validity, sufficiency, accuracy, genuineness or legal effect of any
Letter of Credit or any document submitted by any party in connection with the
application for and issuance of a Letter of Credit, even if it should in fact
prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged;


 


(b)                                 the
form, validity, sufficiency, accuracy, genuineness or legal effect of any
instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or the proceeds thereof
in whole or in part, which may prove to be invalid or ineffective for any
reason;


 


(c)                                  failure
of the beneficiary to comply fully with conditions required in order to demand
payment under a Letter of Credit;


 


(d)                                 errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise; or


 


(e)                                  any
loss or delay in the transmission or otherwise of any document or draft
required in order to make a Disbursement under a Letter of Credit.


 


39





















 


None of the foregoing shall affect, impair or prevent
the vesting of any of the rights or powers granted to any Issuer or any
Revolving Loan Lender hereunder.  In
furtherance and not in limitation or derogation of any of the foregoing, any
action taken or omitted to be taken by an Issuer in good faith (and not
constituting gross negligence or willful misconduct) shall be binding upon each
Obligor and each such Revolving Loan Lender, and shall not put such Issuer
under any resulting liability to any Obligor or any Revolving Loan Lender, as
the case may be.


 


SECTION 2.6.6.  Letter of Credit Participation Agreements.  In the event that any Issuer (a “Participating
Issuer”) enters into any agreement with any other Person (a “Non-Lender
Issuer”) to issue letters of credit for the account of the Borrower, such
letter of credit will be deemed to be a Letter of Credit issued hereunder and
the Reimbursement Obligation and other Obligations of the Borrower and related
Obligations of the Guarantors with respect to such Letter of Credit and the
obligation of the Revolving Lenders to participate in such Letters of Credit
will be obligations owed to the Participating Issuer and not the Non-Lender
Issuer.  The Non-Lender Issuer will have
no claims or any other rights hereunder or against any Obligor or any Lender
other than the Participating Issuer.


 


SECTION 2.7. 
Register; Notes.  (a) The Borrower hereby designates the
Administrative Agent to serve as the Borrower’s agent, solely for the purpose of
this clause, to maintain a register (the “Register”) on which the
Administrative Agent will record each Lender’s Commitment, the Loans made by
each Lender and each repayment in respect of the principal amount of the Loans,
annexed to which the Administrative Agent shall retain a copy of each Lender
Assignment Agreement delivered to the Administrative Agent pursuant to Section 10.11.  Failure to make any recordation, or any error
in such recordation, shall not affect any Obligor’s Obligations.  The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, the
Administrative Agent and the Lenders shall treat each Person in whose name a
Loan is registered as the owner thereof for the purposes of all Loan Documents,
notwithstanding notice or any provision herein to the contrary.  Any assignment or transfer of a Commitment or
the Loans made pursuant hereto shall be registered in the Register only upon
delivery to the Administrative Agent of a Lender Assignment Agreement that has
been executed by the requisite parties pursuant to Section 10.11.  No assignment or transfer of a Lender’s
Commitment or Loans shall be effective unless such assignment or transfer shall
have been recorded in the Register by the Administrative Agent as provided in
this Section.


 


(b)                                 The
Borrower agrees that, upon the request of any Lender, the Borrower will execute
and deliver to such Lender a Note evidencing the Loans made by, and payable to
the order of, such Lender in a maximum principal amount equal to such Lender’s
Percentage of the original applicable Commitment Amount.  The Borrower hereby irrevocably authorizes
each Lender to make (or cause to be made) appropriate notations on the grid
attached to such Lender’s Note (or on any continuation of such grid), which
notations, if made, shall evidence, inter  alia, the date of, the
outstanding principal amount of, and the interest rate and Interest Period
applicable to the Loans evidenced thereby. 
Such notations shall, to the extent not inconsistent with notations made
by the Administrative Agent in the Register, be conclusive and binding on each
Obligor absent manifest error; provided that the failure of any Lender
to make any such notations or any error in such notations shall not limit or
otherwise affect any Obligations of any Obligor.


 


40





















 


ARTICLE III

REPAYMENTS, PREPAYMENTS, INTEREST AND FEES


 


SECTION 3.1. 
Repayments and Prepayments; Application.  The Borrower agrees that the Loans shall be
repaid and prepaid pursuant to the following terms.


 


SECTION 3.1.1.  Repayments and Prepayments.  The Borrower shall repay in full the unpaid
principal amount of each Loan upon the applicable Stated Maturity Date
therefor.  Prior thereto, payments and
prepayments of the Loans shall or may be made as set forth below.


 


(a)                                  From
time to time on any Business Day, the Borrower may make a voluntary prepayment,
in whole or in part, of the outstanding principal amount of any


 


(i)  Loans (other
than Swing Line Loans); provided that (A) any such prepayment of
the Term Loans shall be made pro  rata among Term Loans of
the same type and, if applicable, having the same Interest Period of all
Lenders that have made such Term Loans and any such prepayment of Revolving
Loans shall be made pro  rata among the Revolving Loans of the
same type and, if applicable, having the same Interest Period of all Lenders
that have made such Revolving Loans; (B) all such voluntary prepayments
shall require, in the case of Base Rate Loans at least one Business Day’s prior
notice (such notice to be delivered before noon on such day), and in the case
of LIBO Rate Loans at least three Business Day’s prior notice (such notice to
be delivered before noon on such day), and in either case not more than five Business
Days’ prior irrevocable notice to the Administrative Agent (which notice may be
telephonic so long as such notice is confirmed in writing within 24 hours
thereafter and such notice to be delivered before noon on such day); and (C) all
such voluntary partial prepayments shall be, in the case of LIBO Rate Loans, in
an aggregate minimum amount of $2,000,000 and an integral multiple of
$1,000,000 and, in the case of Base Rate Loans, in an aggregate minimum amount
of $1,000,000 and an integral multiple of $500,000; and


 


(ii)  Swing Line
Loans; provided that (A) all such voluntary prepayments shall
require prior telephonic notice to the Swing Line Lender on or before 1:00 p.m.
on the day of such prepayment (such notice to be confirmed in writing within
24 hours thereafter); and (B) all such voluntary partial prepayments
shall be in an aggregate minimum amount of $250,000 and an integral multiple of
$50,000.


 


(iii)  Each notice
of prepayment sent pursuant to this clause shall specify the prepayment date,
the principal amount of each Borrowing (or portion thereof) to be prepaid and
the scheduled installment or installments of principal to which such prepayment
is to be applied.  Each such notice shall
be irrevocable and shall commit the Borrower to prepay such Borrowing by the
amount stated therein on the date stated therein; provided that a notice of
prepayment may state that such notice is conditioned upon the effectiveness of
other credit facilities, in which


 


41





















 


case such notice may be revoked by the Borrower (by
notice to the Administrative Agent on or prior to the specified effective date)
if such condition is not satisfied. All prepayments under this clause (other
than prepayments of Revolving Loans that are Base Rate Loans that are not made
in connection with the termination or permanent reduction of the Revolving Loan
Commitment) shall be accompanied by accrued and unpaid interest on the
principal amount to be prepaid to but excluding the date of payment.


 


(b)                                 On
each date when the sum of (i) the aggregate outstanding principal amount
of all Revolving Loans and Swing Line Loans and (ii) the aggregate amount
of all Letter of Credit Outstandings exceeds the Revolving Loan Commitment
Amount (as it may be reduced from time to time pursuant to this Agreement), the
Borrower shall make a mandatory prepayment of Revolving Loans or Swing Line
Loans (or both) and, if necessary, after repayment of such Loans, Cash
Collateralize Letter of Credit Outstandings, in an aggregate amount equal to
such excess.


 


(c)                                  Concurrently
with the receipt by the Borrower or any of its Subsidiaries of any Net Debt
Proceeds, the Borrower shall (or shall cause such Subsidiary to) make a
mandatory prepayment of the Loans in an amount equal to 100% of such Net Debt
Proceeds, to be applied as set forth in Section 3.1.2.


 


(d)                                 In
the event the Borrower or any of its Subsidiaries receives any Net Disposition
Proceeds or Net Casualty Proceeds, the Borrower shall, (subject to the proviso
hereto) within 5 Business Days of such receipt, deliver to the Administrative
Agent a calculation of the amount of such Net Disposition Proceeds or Net
Casualty Proceeds, and, to the extent the aggregate amount of such proceeds
received by the Borrower and their respective Subsidiaries in any Fiscal Year
exceeds $1,000,000, the Borrower shall (or shall cause such Subsidiary to) make
a mandatory prepayment of the Loans in an amount equal to 100% of such excess; provided
that, upon written notice by the Borrower to the Administrative Agent not more
than 5 Business Days following receipt of any Net Disposition Proceeds or Net
Casualty Proceeds, such proceeds may be retained by the Borrower and its
Subsidiaries (and be excluded from the prepayment requirements of this clause)
if (A) the Borrower informs the Administrative Agent in such notice of its
good faith intention to apply (or cause one or more of its Subsidiaries to
apply) such Net Disposition Proceeds or Net Casualty Proceeds to the
acquisition of other assets or properties in the U.S. consistent with the
businesses permitted to be conducted pursuant to Section 7.2.1
(including by way of merger or Investment), and (B) within 365 days
following the receipt of such Net Disposition Proceeds or Net Casualty
Proceeds, such proceeds are applied or committed to such acquisition.  The amount of such Net Disposition Proceeds
or Net Casualty Proceeds unused or uncommitted after such 365 day period shall
be applied to prepay the Loans as set forth in Section 3.1.2; provided
that in the event the Borrower or such Subsidiary has not applied such
committed but unused Net Disposition Proceeds or Net Casualty Proceeds for such
acquisition within seventeen months following the receipt of such Net
Disposition Proceeds or Net Casualty Proceeds,


 


42





















 


all of such committed but unused Net Disposition
Proceeds or Net Casualty Proceeds shall be applied to prepay the Loans as set
forth in Section 3.1.2 at the end of such seventeen month
period.  At any time after receipt of any
such Net Disposition Proceeds or Net Casualty Proceeds in excess of $2,500,000
during any Fiscal Year (individually or in the aggregate) but prior to the
application thereof to a mandatory prepayment or the acquisition of other
assets or properties as described above, the Borrower shall deposit (or cause
to be deposited) an amount equal to such excess into a cash collateral account
(the “Proceeds  Account”) maintained with (and subject to
documentation reasonably satisfactory to) the Administrative Agent for the
benefit of the Secured Parties (and over which the Administrative Agent shall
have a first priority perfected Lien) pending such application as a prepayment
or to be released as requested by the Borrower in respect of such
acquisition.  Amounts deposited in such
cash collateral account shall be invested in Cash Equivalent Investments, as
directed by the Borrower.


 


(e)                                  Within
15 days after delivering a Compliance Certificate with respect to each
Fiscal Quarter resulting in the commencement or continuation of a Dividend
Suspension Period, the Borrower shall make a mandatory prepayment of the Loans
in an amount equal to 50% of Available Cash (if positive) for such Fiscal
Quarter, to be applied as set forth in Section 3.1.2;


 


(f)                                    Immediately
upon any acceleration of the Stated Maturity Date of any Loans pursuant to Sections
8.2 or   8.3, the Borrower shall repay all the Loans,
unless, pursuant to Section 8.3, only a portion of all the Loans is
so accelerated (in which case the portion so accelerated shall be so repaid).


 


Each prepayment of any Loans made pursuant to this Section shall
be without premium or penalty, except as may be required by Section 4.4.  In lieu of making any mandatory prepayment
pursuant to clauses (c), (d), or (e) of this Section in
respect of any LIBO Rate Loan other than on the last day of the Interest Period
therefor, so long as no Default shall have occurred and be continuing, the
Borrower at its option may deposit with the Administrative Agent an amount equal
to the amount of the LIBO Rate Loan to be prepaid and such LIBO Rate Loan shall
be repaid on the last day of the Interest Period therefor in the required
amount.  Such deposit shall be held by
the Administrative Agent in a corporate time deposit account established on
terms reasonably satisfactory to the Administrative Agent, earning interest at
the then-customary rate for accounts of such type.  Such deposit shall cash collateralize the
applicable Obligations; provided that (A) the Borrower may at any
time direct that such deposit be applied to make the applicable payment
required pursuant to this Section, subject to the provisions of Section 4.4
and (B) upon the occurrence of a Default, such amounts on deposit shall be
applied by the Administrative Agent to prepay the Loans.


 


SECTION 3.1.2.  Application.  Amounts prepaid pursuant to Section 3.1.1
shall be applied as set forth in this Section.


 


(a)                                  Subject
to clause (b), each prepayment or repayment of the principal of the
Loans shall be applied, to the extent of such prepayment or repayment, first,
to the principal amount thereof being maintained as Base Rate Loans, and second,
subject to the


 


43





















 


terms of the last paragraph of Section 3.1.1
and Section 4.4, to the principal amount thereof being maintained
as LIBO Rate Loans.


 


(b)                                 Each
prepayment of the Loans made pursuant to clauses (c), (d) or
(e) of Section 3.1.1 shall be applied (i) first,
to a mandatory prepayment of the outstanding principal amount of all
Term Loans, and (ii) second, once all Term Loans have
been repaid in full, to a reduction of the Revolving Loan Commitment Amount in
accordance with Section 2.2.2.


 


SECTION 3.2. 
Interest Provisions. 
Interest on the outstanding principal amount of the Loans shall accrue
and be payable in accordance with the terms set forth below.


 


SECTION 3.2.1.  Rates.  Pursuant to an appropriately delivered
Borrowing Request or Continuation/Conversion Notice, the Borrower may elect
that the Loans comprising a Borrowing accrue interest at a rate per annum:


 


(a)                                  on
that portion maintained from time to time as a Base Rate Loan, equal to the sum
of the Alternate Base Rate from time to time in effect plus the
Applicable Margin; provided that all Swing Line Loans shall always
accrue interest at a rate per annum equal to the Alternate Base Rate from time
to time in effect plus the then effective Applicable Margin for
Revolving Loans maintained as Base Rate Loans; and


 


(b)                                 on
that portion maintained as a LIBO Rate Loan, during each Interest Period
applicable thereto, equal to the sum of the LIBO Rate (Reserve Adjusted) for
such Interest Period plus the Applicable Margin,


 


but in no event in excess of the maximum nonusurious
interest rate permitted by applicable law. 
All LIBO Rate Loans shall bear interest from and including the first day
of the applicable Interest Period to (but not including) the last day of such
Interest Period at the interest rate determined as applicable to such LIBO Rate
Loan.  Interest on Base Rate Loans shall
be calculated from and including the first day of the Borrowing of such Base
Rate Loan to (but not including) the date interest is required to be paid on
such Base Rate Loan pursuant to Section 3.2.3.


 


SECTION 3.2.2.  Post-Maturity Rates.  After the date any principal amount of any
Loan or Reimbursement Obligation is due and payable (whether on the Stated
Maturity Date, upon acceleration or otherwise), or after any other monetary
Obligation of the Borrower shall have become due and payable, and such
Reimbursement Obligation or Obligation shall not have been paid, the Borrower
shall pay, but only to the extent permitted by law, interest (after as well as
before judgment) on such amounts at a rate per annum equal to (a) in the
case of overdue principal on any Loan, the rate of interest that otherwise
would be applicable to such Loan plus 2% per annum; and (b) in the
case of overdue interest, fees and other monetary Obligations, the Alternate
Base Rate plus 2% per annum, but in no event in excess of the maximum
nonusurious interest rate permitted by applicable law.


 


SECTION 3.2.3.  Payment Dates.  Interest accrued on each Loan shall be
payable, without duplication:


 


44





















 


(a)                                  on
the Stated Maturity Date therefor;


 


(b)                                 on
the date of any payment or prepayment, in whole or in part, of principal
outstanding on such Loan (other than Swing Line Loans and Base Rate Loans) on
the principal amount so paid or prepaid;


 


(c)                                  with
respect to Base Rate Loans (including Swing Line Loans), on each Quarterly
Payment Date occurring after the Amendment Effective Date;


 


(d)                                 with
respect to LIBO Rate Loans, on the last day of each applicable Interest Period
(and, if such Interest Period shall exceed three months, on each Quarterly Payment
Date occurring after the first day of such Interest Period); and


 


(e)                                  on
that portion of any Loans the Stated Maturity Date of which is accelerated
pursuant to Sections 8.2 or 8.3, immediately upon such
acceleration.


 


Interest accrued on Loans or other monetary
Obligations after the date such amount is due and payable (whether on the
Stated Maturity Date, upon acceleration or otherwise) shall be payable upon
demand.


 


SECTION 3.3. 
Fees. 
The Borrower agrees to pay the fees set forth below.  All such fees shall be non-refundable.


 


SECTION 3.3.1.  Commitment Fee.  The Borrower agrees to pay to the
Administrative Agent for the account of each Lender with a Revolving Loan
Commitment, for the period (including any portion thereof when any of its
Commitments are suspended by reason of the Borrower’s inability to satisfy any
condition of Article V) commencing on the Amendment Effective Date
and continuing through the Commitment Termination Date, a commitment fee in an
amount per annum equal to 0.50%, in each case on such Lender’s Percentage of
the sum of the average daily unused portion of the Revolving Loan Commitment
Amount less the average daily amount of Letter of Credit
Outstandings.  All commitment fees
payable pursuant to this Section shall be calculated on a year comprised
of 360 days and payable by the Borrower on each Quarterly Payment Date,
commencing with the first Quarterly Payment Date following the Amendment
Effective Date, and on the Revolving Loan Commitment Termination Date.  The making of Swing Line Loans shall not
constitute usage of the Revolving Loan Commitment with respect to the
calculation of commitment fees to be paid by the Borrower to the Lenders.


 


SECTION 3.3.2.  Other Fees.  The Borrower agrees to pay the fees in the
amounts and on the dates set forth in each Fee Letter.


 


SECTION 3.3.3.  Letter of Credit Fee.  The Borrower agrees to pay to the
Administrative Agent, for the pro  rata account of the applicable
Issuer and each Revolving Loan Lender, a Letter of Credit fee in a per annum
amount equal to the then effective Applicable Margin for Revolving Loans
maintained as LIBO Rate Loans, multiplied by the Stated Amount of each such
Letter of Credit, such fees being payable quarterly in arrears on each
Quarterly Payment Date following the date of issuance of each Letter of Credit
and on the Commitment Termination Date. 
The Borrower further agrees to pay to the applicable Issuer quarterly in
arrears on each Quarterly


 


45





















 


Payment Date
following the date of issuance of each Letter of Credit and on the Commitment
Termination Date an issuance fee as agreed to by the Borrower and such Issuer.


 


ARTICLE IV

CERTAIN LIBO RATE AND OTHER PROVISIONS


 


SECTION 4.1. 
LIBO Rate Lending Unlawful. 
If any Lender shall determine (which determination shall, upon notice
thereof to the Borrower and the Administrative Agent, be conclusive and binding
on the Borrower) that the introduction of or any change in or in the
interpretation of any law makes it unlawful, or any Governmental Authority
asserts that it is unlawful, for such Lender to make or continue any Loan as,
or to convert any Loan into, a LIBO Rate Loan, the obligations of such Lender
to make, continue or convert any such LIBO Rate Loan shall, upon such determination,
forthwith be suspended until such Lender shall notify the Administrative Agent
that the circumstances causing such suspension no longer exist, and all
outstanding LIBO Rate Loans payable to such Lender shall automatically convert
into Base Rate Loans at the end of the then current Interest Periods with
respect thereto or sooner, if required by such law or assertion.


 


SECTION 4.2. 
Deposits Unavailable.  If
the Administrative Agent shall have determined that


 


(a)                                  Dollar
deposits in the relevant amount and for the relevant Interest Period are not
available to it in its relevant market; or


 


(b)                                 by
reason of circumstances affecting its relevant market, adequate means do not
exist for ascertaining the interest rate applicable hereunder to LIBO Rate Loans;


 


then, upon notice from the Administrative Agent to the
Borrower and the Lenders, the obligations of all Lenders under Sections 2.3
and 2.4 to make or continue any Loans as, or to convert any Loans into,
LIBO Rate Loans shall forthwith be suspended until the Administrative Agent
shall notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.


 


SECTION 4.3. 
Increased LIBO Rate Loan Costs, etc.  The Borrower agrees to reimburse each Lender
and Issuer for any increase in the cost to such Lender or Issuer of, or any
reduction in the amount of any sum receivable by such Person in respect of,
such Person’s Commitments and the making of Credit Extensions hereunder
(including the making, continuing or maintaining (or of its obligation to make
or continue) any Loans as, or of converting (or of its obligation to convert)
any Loans into, LIBO Rate Loans) that arise in connection with any change in,
or the introduction, adoption, effectiveness, change in interpretation, reinterpretation
or phase-in after the Amendment Effective Date of, any law or regulation,
directive, guideline, decision or request (whether or not having the force of
law) of any Governmental Authority, except for such changes with respect to
increased capital costs and Taxes which are governed by Sections 4.5 and
4.6, respectively.  Each affected
Lender or Issuer shall promptly notify the Administrative Agent and the
Borrower in writing of the occurrence of any such event, stating the reasons
therefor and the


 


46





















 


additional amount
required fully to compensate such Person for such increased cost or reduced
amount.  Such additional amounts shall be
payable by the Borrower directly to such Lender or Issuer within five days of
its receipt of such notice, and such notice shall, in the absence of manifest
error, be conclusive and binding on the Borrower.  Notwithstanding the foregoing, no Lender or
Issuer shall be entitled to compensation under this Section for any costs
incurred or reductions suffered with respect to any date that it has such costs
unless it shall have notified the Borrower that it will demand compensation for
such costs not more than 180 days after the date on which it shall have become
aware of such costs.


 


SECTION 4.4. 
Funding Losses.  In the
event any Lender shall incur any loss or expense (including any loss or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by such Lender to make or continue any portion of the principal
amount of any Loan as, or to convert any portion of the principal amount of any
Loan into, a LIBO Rate Loan) as a result of


 


(a)                                  any
conversion or repayment or prepayment of the principal amount of any LIBO Rate
Loan on a date other than the scheduled last day of the Interest Period
applicable thereto, whether pursuant to Article III or otherwise;


 


(b)                                 any
Loans not being made as LIBO Rate Loans in accordance with the Borrowing
Request therefor; or


 


(c)                                  any
Loans not being continued as, or converted into, LIBO Rate Loans in accordance
with the Continuation/Conversion Notice therefor;


 


then, upon the written notice of such Lender to the
Borrower (with a copy to the Administrative Agent), the Borrower shall, within
five days of its receipt thereof, pay directly to such Lender such amount as
will (in the reasonable determination of such Lender) reimburse such Lender for
such loss or expense.  Such written
notice shall, in the absence of manifest error, be conclusive and binding on
the Borrower.


 


SECTION 4.5. 
Increased Capital Costs. 
If, after the Amendment Effective Date, any change in, or the
introduction, adoption, effectiveness, change in interpretation,
reinterpretation or phase-in of, any law or regulation, directive, guideline, decision
or request (whether or not having the force of law) of any Governmental
Authority affects or would increase the amount of capital required or expected
to be maintained by any Credit Party or any Person controlling such Credit
Party, and such Credit Party determines (in good faith but in its sole and
absolute discretion) that the rate of return on its or such controlling Person’s
capital as a consequence of the Commitments or the Credit Extensions made, or
the Letters of Credit participated in, by such Credit Party is reduced to a
level below that which such Credit Party or such controlling Person could have
achieved but for the occurrence of any such circumstance, then upon prompt
notice from time to time by such Credit Party to the Borrower, the Borrower
shall within five days following receipt of such notice pay directly to such
Credit Party additional amounts sufficient to compensate such Credit Party or
such controlling Person for such reduction in rate of return.  A statement of such Credit Party as to any
such additional amount or amounts shall, in the absence of manifest error, be
conclusive and binding on the Borrower. 
In determining such amount, such


 


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Credit Party may
use any method of averaging and attribution that it (in its sole and absolute
discretion) shall deem applicable. 
Notwithstanding the foregoing, no Credit Party shall be entitled to
compensation under this Section for any additional amounts with respect to
any date unless it shall have notified the Borrower that it will demand
compensation hereunder not more than 180 days after the date on which it shall
have become aware of such increased costs.


 


SECTION 4.6. 
Taxes. 
The Borrower covenants and agrees as follows with respect to Taxes.


 


(a)                                  Any
and all payments by the Borrower under each Loan Document shall be made free
and clear of, and without deduction or withholding for or on account of, any
Taxes, unless required by law.  In the
event that any Taxes are imposed and required to be deducted or withheld from
any payment required to be made by any Obligor to or on behalf of any Credit
Party under any Loan Document, then:


 


(i)  subject to clause
(f), if such Taxes are Non-Excluded Taxes, the amount of such payment shall
be increased as may be necessary so that such payment is made, after
withholding or deduction for or on account of such Taxes, in an amount that is
not less than the amount provided for in such Loan Document; and


 


(ii)  the Borrower
shall withhold the full amount of such Taxes from such payment (as increased
pursuant to clause (a)(i) of this Section) and shall pay such
amount to the Governmental Authority imposing such Taxes in accordance with
applicable law.


 


(b)                                 In
addition, the Borrower shall pay all Other Taxes imposed to the relevant
Governmental Authority imposing such Other Taxes in accordance with applicable
law.


 


(c)                                  As
promptly as practicable after the payment of Other Taxes or Non-Excluded Taxes,
and in any event within 45 days of any such payment being made, the Borrower
shall furnish to the Administrative Agent a copy of an official receipt (or a
certified copy thereof) evidencing the payment of such Taxes or Other
Taxes.  The Administrative Agent shall
make copies thereof available to any Lender upon request therefor.


 


(d)                                 Subject
to clause (f), the Borrower shall indemnify each Credit Party for any
Non-Excluded Taxes and Other Taxes, levied, imposed or assessed on (and whether
or not paid directly by) such Credit Party whether or not such Non-Excluded
Taxes or Other Taxes are correctly or legally asserted by the relevant
Governmental Authority.  Promptly upon
having knowledge that any such Non-Excluded Taxes or Other Taxes have been
levied, imposed or assessed, and promptly upon notice thereof by any Credit
Party, the Borrower shall pay such Non-Excluded Taxes or Other Taxes directly
to the relevant Governmental Authority provided that the Borrower shall
not be obligated to so indemnify each Credit Party in respect of interest or
penalties attributable to any Non-Excluded Taxes or Other Taxes: (i) to
the extent that (A) such interest or penalties


 


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resulted solely from the failure of the Administrative
Agent or such other Credit Party as applicable, to notify the Borrower of the
imposition of such Non-Excluded Taxes or Other Taxes within 120 days after the
Administrative Agent or such other Credit Party (as the case may be) actually
received written notice of such imposition from the applicable taxing authority
and (B) such interest and penalties are not attributable to periods
beginning seven days after the Borrower actually receives written notice from
the Administrative Agent or such other Credit Party (as the case may be) of the
imposition of such Taxes or (ii) such interest or penalties resulted
solely from the gross negligence or willful misconduct of the Administrative
Agent or such Credit Party.  With respect
to indemnification for Non-Excluded Taxes and Other Taxes actually paid by any
Credit Party or the indemnification provided in the immediately preceding
sentence, such indemnification shall be made within 30 days after the date such
Credit Party makes written demand therefor. 
The Borrower acknowledges that any payment made to any Credit Party or
to any Governmental Authority in respect of the indemnification obligations of
the Borrower provided in this clause shall constitute a payment in respect of
which the provisions of clause (a) and this clause shall apply.


 


(e)                                  Each
Non-U.S. Credit Party, on or prior to the date on which such Non-U.S. Credit
Party becomes a Credit Party hereunder (and from time to time thereafter upon
the request of the Borrower or the Administrative Agent, but only for so long
as such non-U.S. Credit Party is legally entitled to do so), shall deliver to
the Borrower and the Administrative Agent either (i) two duly completed
copies of either (x) Internal Revenue Service Form W-8BEN (or other
applicable Internal Revenue Service Form W-8) claiming eligibility of the
Non-U.S. Credit Party for benefits of an income tax treaty to which the United
States is a party or (y) Internal Revenue Service Form W-8ECI, or in
either case an applicable successor form; or (ii) in the case of a
Non-U.S. Credit Party that is not legally entitled to deliver either form
listed in clause (e)(i), (x) a certificate to the effect that such
Non-U.S. Credit Party is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of
the Code, (B) a “10 percent shareholder” of the Borrower within the
meaning of Section 881(c)(3)(B) of the Code, or (C) a controlled
foreign corporation receiving interest from a related person within the meaning
of Section 881(c)(3)(C) of the Code (referred to as an “Exemption
Certificate”) and (y) two duly completed copies of Internal Revenue Service
Form W-8BEN (or other applicable Internal Revenue Service Form W-8),
or applicable successor forms.


 


(f)                                    The
Borrower shall not be obligated to pay any additional amounts to any Credit
Party pursuant to clause (a)(i), or to indemnify any Lender pursuant to clause
(d), in respect of Non-Excluded Taxes to the extent imposed as a result of (i) the
failure of such Credit Party to deliver to the Borrower the form or forms
and/or an Exemption Certificate, as applicable to such Credit Party, pursuant
to clause (e) or (ii) such form or forms and/or Exemption
Certificate not establishing a complete exemption from the Non-Excluded Tax in
question or the information or certifications made therein by the Credit Party
being untrue or inaccurate on the date delivered in any material respect; provided
that the Borrower shall be obligated to pay additional amounts to any such
Credit Party pursuant to clause (a)(i), or to indemnify any such Credit
Party pursuant to clause (d), in respect of such Non-Excluded Taxes to
the extent that any such failure to deliver a form


 


49





















 


or forms or an Exemption Certificate or the failure of
such form or forms or Exemption Certificate to establish a complete exemption
from Non-Excluded Taxes or inaccuracy or untruth contained therein resulted
from (A) a change in any applicable statute, treaty, regulation or other
applicable law or any official interpretation of any of the foregoing by an
applicable Governmental Authority (a “Change in Law”) enacted, adopted,
promulgated or issued (as the case may be) after the Amendment Effective Date,
which Change in Law rendered such Credit Party no longer legally entitled to
deliver such form or forms or Exemption Certificate or otherwise ineligible for
a complete exemption from such Non-Excluded Taxes, or rendered the information
or certifications made in or such form or forms or Exemption Certificate untrue
or inaccurate in a material respect, or (B) a redesignation of the Credit
Party’s lending office that was made at the request of the Borrower. In
addition, if at the time of an assignment under Section 10.11, any
greater Non-Excluded Taxes subject to payment of additional amounts pursuant to
clause (a)(i) or indemnification pursuant to clause (d) would
apply to the assignee Credit Party than applied to the assignor Credit Party,
then such assignee Credit Party shall not be entitled to additional amounts
pursuant to clause (a)(i) or indemnification pursuant to clause (d) with
respect to the portion of such Non-Excluded Taxes as exceeds the Non-Excluded
Taxes applicable to the assignor Credit Party unless the assignee Credit Party
notifies the Borrower in writing at the time of the assignment (or if the
Borrower’s approval is required for such assignment, at the time of delivery to
the Borrower of a request for such approval) that such greater Non-Excluded
Taxes are applicable to such assignee Credit Party (or if the Borrower’s
approval is required for such assignment, that such greater Non-Excluded Taxes
would be applicable to such assignee if such approval were granted).  Each Credit Party, with respect to itself,
agrees to indemnify and hold harmless the Borrower from any Taxes, penalties,
interest and other reasonable expenses, costs and losses incurred or payable by
the Borrower as a result of the failure of the Borrower to comply with its
obligations under clause (a)(ii) in reliance on any form or
certificate provided to it by such Credit Party pursuant to this Section.


 


(g)                                 If
and to the extent that any Credit Party determines (in good faith) that it has
actually realized a refund of a Tax in respect to which the Borrower paid any
additional amounts to such Credit Party pursuant to clause (a)(i) or
clause (d), such Credit Party shall, to the extent such Credit Party
determines in good faith that such Credit Party may do so without prejudice to
the retention of such refund and without any other adverse Tax consequences to
such Credit Party, pay to the Borrower an amount it determines to be the proportion
of the refund as will leave it, after such payment, in no better or worse
financial position than had the Tax giving rise to the additional amounts not
been imposed and had the additional amounts giving rise to such refund never
been paid in the first place.  If any
refund resulting in a payment by a Credit Party to the Borrower under this
clause is ultimately disallowed (in whole or in part, and including, as a
result of a settlement with an applicable Governmental Authority), the Borrower
shall, within ten days after receiving written notice from such Credit Party,
return to such Credit Party the portion of the payment previously made to the
Borrower by such Credit Party (plus interest for the relevant period(s)
at the applicable rate(s)) as such Credit Party shall determine (in such Credit
Party’s sole discretion exercised in good faith) to be due and owning in
accordance with this clause.


 


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SECTION 4.7. 
Payments, Computations, etc. 
(a)  Unless otherwise expressly provided in a Loan Document, all
payments by the Borrower pursuant to each Loan Document shall be made by the
Borrower to the Administrative Agent for the pro  rata account of
the Credit Parties entitled to receive such payment.  All payments shall be made without setoff,
deduction or counterclaim not later than noon on the date due in same day or
immediately available funds to such account as the Administrative Agent shall
specify from time to time by notice to the Borrower.  Funds received after that time shall be
deemed to have been received by the Administrative Agent on the next succeeding
Business Day.  The Administrative Agent
shall promptly remit in same day funds to each Credit Party its share, if any,
of such payments received by the Administrative Agent for the account of such
Credit Party.  All interest (including
interest on LIBO Rate Loans) and fees shall be computed on the basis of the
actual number of days (including the first day but excluding the last day)
occurring during the period for which such interest or fee is payable over a
year comprised of 360 days (or, in the case of interest on a Base Rate
Loan (calculated at other than the Federal Funds Rate), 365 days or, if
appropriate, 366 days).  Except as
otherwise provided herein, payments due on a day other than a Business Day
shall (except as otherwise required by clause (b) of the definition
of “Interest Period”) be made on the next succeeding Business Day and such
extension of time shall be included in computing interest and fees in
connection with that payment.


 


(b)                                 Except
as otherwise expressly set forth therein, all payments made under any Loan
Document shall be applied upon receipt (i) first,
to the payment of all Obligations (other than Loans or interest thereon) owing
to the Administrative Agent, in its capacity as the Administrative Agent
(including the reasonable fees and expenses of counsel to the Administrative
Agent), (ii) second, after payment in full in
cash of the amounts specified in clause (b)(i), to the ratable
payment of all interest and fees owing and due and payable with respect to the
Credit Extensions and all costs and expenses owing to the Secured Parties
pursuant to the terms of this Agreement, until paid in full in cash, (iii)  third, after payment in full in cash of the
amounts specified in clauses (b)(i) and (b)(ii), to the
ratable payment of the principal amount of the Loans then outstanding and due
and payable, the aggregate Reimbursement Obligations then owing and due and
payable, and Cash Collateralization for contingent liabilities under Letter of
Credit Outstandings and due and payable and, if such payment resulted from the
proceeds of collateral (or a payment under a Guaranty), to amounts owing to
Secured Parties under Rate Protection Agreements and due and payable, (iv) fourth,
after payment in full in cash of the amounts specified in clauses (b)(i) through
(b)(iii), to the ratable payment of all other Obligations owing to the
Secured Parties and due and payable, (v) fifth, after payment in full in
cash of the amounts specified in clauses (b)(i) through (b)(iv),
to each applicable Obligor or any other Person lawfully entitled to receive
such surplus pursuant to an order of a Governmental Authority.


 


SECTION 4.8. 
Sharing of Payments.  If any
Credit Party shall obtain any payment or other recovery (whether voluntary,
involuntary, by application of setoff or otherwise) on account of any Credit
Extension or Reimbursement Obligation (other than pursuant to the terms of Sections
4.3, 4.4, 4.5 or 4.6) in excess of its pro  rata
share of payments obtained by all Credit Parties, such Credit Party shall
purchase from the other Credit Parties such participations in Credit Extensions
made by them as shall be necessary to cause such purchasing Credit Party to


 


51





















 


share the excess
payment or other recovery ratably (to the extent such other Credit Parties were
entitled to receive a portion of such payment or recovery) with each of them; provided
that if all or any portion of the excess payment or other recovery is
thereafter recovered from such purchasing Credit Party, the purchase shall be
rescinded and each Credit Party which has sold a participation to the
purchasing Credit Party shall repay to the purchasing Credit Party the purchase
price to the ratable extent of such recovery together with an amount equal to
such selling Credit Party’s ratable share (according to the proportion of (a) the
amount of such selling Credit Party’s required repayment to the purchasing
Credit Party to (b) total amount so recovered from the purchasing
Credit Party) of any interest or other amount paid or payable by the purchasing
Credit Party in respect of the total amount so recovered.  The Borrower agrees that any Credit Party purchasing
a participation from another Credit Party pursuant to this Section may, to
the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 4.9) with respect to such
participation as fully as if such Credit Party were the direct creditor of the
Borrower in the amount of such participation. 
If under any applicable bankruptcy, insolvency or other similar law any
Credit Party receives a secured claim in lieu of a setoff to which this Section applies,
such Credit Party shall, to the extent practicable, exercise its rights in
respect of such secured claim in a manner consistent with the rights of the
Credit Parties entitled under this Section to share in the benefits of any
recovery on such secured claim.


 


SECTION 4.9. 
Setoff.  Each Credit Party may, upon the occurrence
and during the continuance of any Event of Default described in clauses (a) through
(d) of Section 8.1.9 or, with the consent of the
Required Lenders, upon the occurrence and during the continuance of any other
Event of Default, appropriate and apply to the payment of the Obligations owing
to it (whether or not then due), and (as security for such Obligations) the
Borrower hereby grants to each Secured Party a continuing security interest in,
any and all balances, credits, deposits, accounts or moneys of the Borrower
then or thereafter maintained with such Secured Party (excluding deposits held
by the Borrower as a fiduciary for others); provided that any such
appropriation and application shall be subject to the provisions of Section 4.8.  Each Credit Party agrees promptly to notify
the Borrower and the Administrative Agent after any such appropriation and
application made by such Credit Party; provided that the failure to give
such notice shall not affect the validity of such setoff and application.  The rights of each Credit Party under this Section are
in addition to other rights and remedies (including other rights of setoff
under applicable law or otherwise) which such Credit Party may have.


 


SECTION 4.10. 
Replacement of Lenders.  If
any Lender (an “Affected Lender”) (a) fails to vote in favor of a
modification to this Agreement that is otherwise approved by the requisite
number of Lenders (which, in the case of a modification requiring the consent
of all Lenders or all Lenders of a particular class, means all Lenders or all
Lenders of such class, as applicable, other than such non-consenting Lender), (b) makes
a demand upon the Borrower for (or if the Borrower is otherwise required to
pay) amounts pursuant to Section 4.3, 4.5 or 4.6 (and
the payment of such amounts are, and are likely to continue to be, more onerous
in the reasonable judgment of the Borrower than with respect to the other
Lenders) or (c) gives notice pursuant to Section 4.1 requiring
a conversion of such Affected Lender’s LIBO Rate Loans to Base Rate Loans or
suspending such Lender’s obligation to make Loans as, or to convert Loans into,
LIBO Rate Loans, the Borrower may, within 30 days of the failure to consent or
receipt by the Borrower of such demand or notice, as the case may be, give
notice (a “Replacement Notice”) in


 


52





















 


writing to the
Administrative Agent and such Affected Lender of its intention to replace such
Affected Lender with a financial institution or other Person (a “Substitute
Lender”) designated in such Replacement Notice; provided that no
Replacement Notice may be given by the Borrower if (i) such replacement
conflicts with any applicable law or regulation, (ii) any Event of Default
shall have occurred and be continuing at the time of such replacement, (iii) such
Lender consents to such modification, or, if applicable, (iv) prior to any
such replacement, such Lender shall have taken any necessary action under Section 4.5
or 4.6 (if applicable) so as to eliminate the continued need for payment
of amounts owing pursuant to Section 4.5 or 4.6.  If the Administrative Agent shall, in the
exercise of its reasonable discretion and within 30 days of its receipt of such
Replacement Notice, notify the Borrower and such Affected Lender in writing
that the Substitute Lender is satisfactory to the Administrative Agent (such
consent not to be unreasonably withheld and not being required where the
Substitute Lender is already a Lender or an Affiliate of a Lender), then such
Affected Lender shall, subject to the payment of any amounts due pursuant to Section 4.4,
assign, in accordance with Section 10.11, all of its Commitments,
Loans, Notes (if any) and other rights and obligations under this Agreement and
all other Loan Documents (including Reimbursement Obligations, if applicable)
to such Substitute Lender; provided that (i) such assignment shall
be made pursuant to a Lender Assignment Agreement, (ii) the purchase price
paid by such Substitute Lender shall be in the amount of such Affected Lender’s
Loans and its Percentage of outstanding Reimbursement Obligations, together
with all accrued and unpaid interest and fees in respect thereof, plus
all other amounts (including the amounts demanded and unreimbursed under Sections
4.3, 4.5 and 4.6), owing to such Affected Lender hereunder
and (iii) the Borrower shall pay to the Affected Lender and the
Administrative Agent all reasonable out-of-pocket expenses incurred by the
Affected Lender and the Administrative Agent in connection with such assignment
and assumption (including the processing fees described in Section 10.11).  Upon the effective date of an assignment
described above, the Substitute Lender shall become a “Lender” for all purposes
under the Loan Documents.


 


SECTION 4.11. 
Mitigation of Claims.  Each
Lender agrees that if it makes any demand for payment under Section 4.3,
4.4, 4.5, or 4.6, or if any adoption or change of the type
described in Section 4.1 shall occur with respect to it, it will
use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions and so long as such efforts would not be
disadvantageous to it, as determined in its sole discretion) to designate a
different lending office if the making of such a designation would reduce or
obviate the need for the Borrower to make payments under Section 4.3,
4.4, 4.5, or 4.6, or would eliminate or reduce the effect
of any adoption or change described in Section 4.1.


 


ARTICLE V

CONDITIONS TO EFFECTIVENESS


 


SECTION 5.1. 
Initial Credit Extension. 
The obligations of the Lenders and, if applicable, the applicable Issuer
to fund the initial Credit Extension hereunder shall be subject to the prior or
concurrent satisfaction of each of the conditions precedent set forth in this
Article.


 


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SECTION 5.1.1.  Resolutions, etc.  The Administrative Agent shall have received
from each Obligor, as applicable, (i) a copy of a good standing
certificate (to the extent applicable), dated a date reasonably close to the
Amendment Effective Date, for each such Person and (ii) a certificate,
dated the Amendment Effective Date duly executed and delivered by such Person’s
Secretary or Assistant Secretary, managing member or general partner, as
applicable, as to


 


(a)                                  resolutions
of each such Person’s Board of Directors (or other managing body, in the case
of an entity other than a corporation) then in full force and effect
authorizing, to the extent relevant, all aspects of the Transaction applicable
to such Person and the execution, delivery and performance of each Loan
Document to be executed by such Person and the transactions contemplated hereby
and thereby;


 


(b)                                 the
incumbency and signatures of those of its officers, managing member or general
partner, as applicable, authorized to act with respect to each Loan Document to
be executed by such Person; and


 


(c)                                  the
full force and validity of each Organic Document of such Person and copies
thereof;


 


upon which certificates each Credit Party may
conclusively rely until it shall have received a further certificate of the
Secretary, Assistant Secretary, managing member or general partner, as
applicable, of any such Person canceling or amending the prior certificate of
such Person.


 


SECTION 5.1.2.  Amendment Effective Date Certificate.  The Administrative Agent shall have received
the Amendment Effective Date Certificate, dated the Amendment Effective Date
and duly executed and delivered by an Authorized Officer of the Borrower, in
which certificate the Borrower shall agree and acknowledge that the statements
made therein shall be deemed to be true and correct representations and
warranties of the Borrower as of such date, and, at the time each such
certificate is delivered, such statements shall in fact be true and
correct.  All documents and agreements
required to be appended to the Amendment Effective Date Certificate shall be in
form and substance satisfactory to the Lead Arrangers.


 


SECTION 5.1.3.  Consummation of Transaction.  The Lead Arrangers shall have received
evidence reasonably satisfactory to them that all actions necessary to
consummate the Transaction shall have been taken in accordance with all
applicable law and in accordance with the terms of each applicable Transaction
Document, without amendment or waiver of any material provision thereof.  The Administrative Agent shall have received
copies of the Transaction Documents (as well as all other closing documentation
executed or delivered in connection therewith) executed and delivered by the
parties thereto, each of which shall be in full force and effect.  All aspects of the Transaction shall have
been, or substantially contemporaneously with the making of the initial Loans
will be, consummated.


 


SECTION 5.1.4.  Delivery of Notes.  The Administrative Agent shall have received,
for the account of each Lender that has requested a Note, such Lender’s Notes
duly executed and delivered by an Authorized Officer of the Borrower.


 


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SECTION 5.1.5.  Financial Information, etc.  The Administrative Agent shall have received,


 


(a)                                  audited
consolidated financial statements of Parent and its Subsidiaries as at December 31,
2004;


 


(b)                                 a
pro  forma consolidated balance sheet of Parent and its
Subsidiaries (together with a consolidating schedule thereto for the
Borrower and its Subsidiaries) as of the most recently ended calendar month for
which financial statements are available certified by the chief financial or
accounting Authorized Officer of the Borrower, giving effect to the
consummation of the Transaction and all the transactions contemplated by this
Agreement, which shall be satisfactory to the Administrative Agent; and


 


(c)                                  financial
projections for the five years following the Amendment Effective Date.


 


SECTION 5.1.6.  Solvency, etc.  The Administrative Agent shall have received
a solvency certificate, in substantially the form of Exhibit K,
duly executed and delivered by the chief financial or accounting Authorized
Officer of the Borrower, dated as of the Amendment Effective Date.


 


SECTION 5.1.7.  Approvals.  All material governmental, shareholder and
third party consents and approvals necessary in connection with the
consummation of Transaction, and the related financings and other transactions
contemplated hereby and thereby, shall have been duly obtained and all
applicable waiting periods shall have expired without any action being taken by
any competent authority that could restrain, prevent or impose any materially
adverse conditions on the Transaction or the continued operations of Parent,
the Borrower or any of their respective Subsidiaries.


 


SECTION 5.1.8.  Compliance with Applicable Laws.  The Lead Arrangers shall be reasonably
satisfied that the Transaction and the Borrowings under this Agreement are in
compliance in all material respects with all applicable laws and regulations
(including F.R.S. Board Regulations T, U and X).


 


SECTION 5.1.9.  Rating of Loans.  The Loans shall have been rated by S&P
and Moody’s.


 


SECTION 5.1.10.  Opinions of Counsel.  The Administrative Agent shall have received
opinions, dated the Amendment Effective Date and addressed to the Lead
Arrangers and all Lenders, from Cahill Gordon & Reindel LLP, New York
counsel to the Obligors, in form and substance reasonably satisfactory to the
Lead Arrangers.


 


SECTION 5.1.11.  Fees, Expenses, etc.  Each party to each Fee Letter shall have
received for their own account, or for the account of each Lender, as the case
may be, all fees, costs and expenses due and payable pursuant to Section 3.3
and, if then invoiced, Section 10.3.


 


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SECTION 5.1.12.  Affirmation and Consent.  Each Subsidiary Guarantor shall have duly
authorized, executed, acknowledged and delivered to the Administrative Agent
the Affirmation and Consent, dated as of the Amendment Effective Date.


 


SECTION 5.2. 
All Credit Extensions.  The
obligation of each Lender and each Issuer to make any Credit Extension shall be
subject to the satisfaction of each of the conditions precedent set forth
below.


 


SECTION 5.2.1.  Compliance with Warranties, No Default,
etc.  Both before and after giving
effect to any Credit Extension (but, if any Default of the nature referred to
in Section 8.1.5 shall have occurred with respect to any other
Indebtedness, without giving effect to the application, directly or indirectly,
of the proceeds thereof) the following statements shall be true and correct:


 


(a)                                  the
representations and warranties set forth in each Loan Document shall, in each
case, be true and correct in all material respects with the same effect as if
then made (unless stated to relate solely to an earlier date, in which case
such representations and warranties shall be true and correct in all material
respects as of such earlier date); and


 


(b)                                 no
Default shall have then occurred and be continuing.


 


SECTION 5.2.2.  Credit Extension Request, etc.  Subject to Section 2.3.2, the
Administrative Agent shall have received a Borrowing Request if Loans are being
requested, or an Issuance Request if a Letter of Credit is being requested or
extended.  Each of the delivery of a
Borrowing Request or Issuance Request and the acceptance by the Borrower of the
proceeds of such Credit Extension shall constitute a representation and
warranty by the Borrower that on the date of such Credit Extension (both
immediately before and after giving effect to such Credit Extension and the
application of the proceeds thereof) the statements made in Section 5.2.1
are true and correct in all material respects.


 


SECTION 5.2.3.  Satisfactory Legal Form.  All documents executed or submitted pursuant
hereto by or on behalf of any Obligor shall be reasonably satisfactory in form
and substance to the Administrative Agent and its counsel, and the Administrative
Agent and its counsel shall have received all information, approvals, documents
or instruments as the Administrative Agent or its counsel may reasonably
request in connection with such Credit Extension.


 


ARTICLE VI

REPRESENTATIONS AND WARRANTIES


 


In order to induce each Credit Party to enter into
this Agreement and to make Credit Extensions hereunder, the Borrower represents
and warrants to each Credit Party on the Amendment Effective Date and on each
other date required pursuant to the terms of any Loan Document as set forth in
this Article.


 


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SECTION 6.1. 
Organization, etc.  Each
Obligor is validly organized and existing and in good standing (to the extent
applicable) under the laws of the state or jurisdiction of its incorporation or
organization, is duly qualified to do business and is in good standing as a
foreign entity in each jurisdiction where the nature of its business requires
such qualification, except where the failure to be so qualified could not
reasonably be expected to have a Material Adverse Effect, and has full power
and authority and holds all requisite governmental licenses, permits and other
approvals to enter into and perform its Obligations under each Loan Document to
which it is a party, to own and hold under lease its property and to conduct
its business substantially as currently conducted by it, except where the
failure to do so could not reasonably be expected to have a Material Adverse
Effect.


 


SECTION 6.2. 
Due Authorization, Non-Contravention, etc.  The execution, delivery and performance by
each Obligor of each Loan Document executed or to be executed by it, each
Obligor’s participation in the consummation of all aspects of the Transaction,
and the execution, delivery and performance by the Borrower or (if applicable)
any Obligor of the agreements executed and delivered by it in connection with
the Transaction are in each case within such Person’s powers, have been duly
authorized by all necessary action, and do not


 


(a)                                  contravene
any (i) Obligor’s Organic Documents, (ii) court decree or order
binding on or affecting any Obligor or (iii) law or governmental
regulation binding on or affecting any Obligor; or


 


(b)                                 result
in (i) or require the creation or imposition of, any Lien on any Obligor’s
properties (except as permitted by this Agreement) or (ii) a default under
any material contractual restriction binding on or affecting any Obligor.


 


SECTION 6.3. 
Government Approval, Regulation, etc.  No authorization or approval or other action
by, and no notice to or filing with, any Governmental Authority (other than
those that have been, or on the Amendment Effective Date will be, duly obtained
or made and which are, or on the Amendment Effective Date will be, in full
force and effect) is required for the consummation of the Transaction or the
due execution, delivery or performance by any Obligor of any Loan Document to
which it is a party, or for the due execution, delivery and/or performance of
Transaction Documents, in each case by the parties thereto or the consummation
of the Transaction.  Neither the Borrower
nor any of its Subsidiaries is an “investment company” within the meaning of
the Investment Company Act of 1940, as amended, or a “holding company”, or a “subsidiary
company” of a “holding company”, or an “affiliate” of a “holding company” or of
a “subsidiary company” of a “holding company”, within the meaning of the Public
Utility Holding Company Act of 1935, as amended.


 


SECTION 6.4. 
Validity, etc.  Each Loan
Document and each Transaction Document that constitutes a contract to which any
Obligor is a party, assuming due authorization, execution and delivery by the
other parties thereto, constitutes the legal, valid and binding obligations of
such Obligor, enforceable against such Obligor in accordance with their
respective terms (except, in any case, as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors’ rights generally and by principles of equity).


 


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SECTION 6.5. 
Financial Information.  The
financial statements of Parent and its respective Subsidiaries furnished to the
Administrative Agent and each Lender pursuant to clause (a) of Section 5.1.5
have been prepared in accordance with GAAP consistently applied, and present
fairly in all material respects the consolidated financial condition of the
Persons covered thereby as at the dates thereof and the results of their
operations for the periods then ended. 
All balance sheets, all statements of income and of cash flow and all
other financial information of Parent and its Subsidiaries and/or the Borrower
and its Subsidiaries, as applicable, furnished pursuant to Section 7.1.1
have been and will for periods following the Amendment Effective Date be
prepared in accordance with GAAP consistently applied and do or will present
fairly in all material respects the consolidated financial condition of the
Persons covered thereby as at the dates thereof and the results of their
operations for the periods then ended.


 


SECTION 6.6. 
No Material Adverse Change; Solvency.  There has been no material adverse change in
the condition (financial or otherwise), business, operations, assets,
liabilities (contingent or otherwise) or properties of the Borrower and its
Subsidiaries, taken as a whole, since December 31, 2004.  Parent, the Borrower and the Subsidiary
Guarantors, taken as a whole on a consolidated basis, both before and after
giving effect to each Credit Extension, are Solvent.


 


SECTION 6.7. 
Litigation, Labor Controversies, etc.  There is no pending or, to the knowledge of
the Borrower or any of its Subsidiaries, threatened litigation, action,
proceeding or labor controversy


 


(a)                                  except
as disclosed in Item 6.7 of the Disclosure Schedule, affecting the
Borrower, any of its Subsidiaries or any other Obligor, or any of their
respective properties, businesses, assets or revenues, which could reasonably
be expected to have a Material Adverse Effect, and no materially adverse
development has occurred in any labor controversy, litigation, arbitration or
governmental investigation or proceeding disclosed in Item 6.7 of
the Disclosure Schedule; or


 


(b)                                 which
purports to affect the legality, validity or enforceability of any Loan
Document, the Transaction Documents or the Transaction.


 


SECTION 6.8. 
Subsidiaries.  The Borrower
has no Subsidiaries, except those Subsidiaries which are identified in Item
6.8 of the Disclosure Schedule, or which are permitted to have been organized
or acquired in accordance with Sections 7.2.5 or 7.2.9.


 


SECTION 6.9. 
Ownership of Properties. 
The Borrower and each of its Subsidiaries owns (i) in the case of
owned real property, good and indefeasible fee title to, and (ii) in the
case of owned personal property, good and valid title to, or, in the case of
leased real or personal property, valid and enforceable leasehold interests (as
the case may be) in, all of its properties and assets, tangible and intangible,
of any nature whatsoever, free and clear in each case of all Liens or claims,
except for Liens permitted pursuant to Section 7.2.3 except where
the failure to do so could not reasonably be expected to have a Material
Adverse Effect.  The real property listed
in Item 6.9(a) of the Disclosure Schedule constitutes, as of
the Amendment Effective Date, all of the real property owned or leased by the
Borrower and each of its Subsidiaries as of the Amendment Effective Date.


 


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SECTION 6.10. 
Taxes. 
The Borrower and each of its Subsidiaries has (i) filed all
material Tax Returns and reports required by law to have been filed by it and
all such Tax Returns and reports are true, correct and complete in all material
respects and (ii) has paid all material Taxes thereby shown to be due and
owing, except any such Taxes which are being diligently contested in good faith
by appropriate proceedings and for which adequate reserves in accordance with
GAAP shall have been set aside on the books of the Borrower or the applicable
Subsidiary.


 


SECTION 6.11. 
Pension and Welfare Plans. 
During the twelve-consecutive-month period prior to the Amendment
Effective Date and prior to the date of any Credit Extension hereunder, no
steps have been taken to terminate any Pension Plan, and no contribution
failure has occurred with respect to any Pension Plan sufficient to give rise
to a Lien under Section 302(f) of ERISA on the assets of the Borrower
or any of its Subsidiaries.  No condition
exists or event or transaction has occurred with respect to any Pension Plan
which could reasonably be expected to result in the incurrence by the Borrower
or any member of the Controlled Group of any material liability, fine or
penalty that would have a Material Adverse Effect.


 


SECTION 6.12. 
Environmental Warranties. 
Except as set forth in Item 6.12 of the Disclosure Schedule:


 


(a)                                  the
Borrower and each of its Subsidiaries are, and for the past three years have
been, in compliance with all Environmental Laws except such noncompliance that,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect;


 


(b)                                 there
are no pending or, to the knowledge of the Borrower, threatened (i) claims, complaints, notices or requests for
information received by the Borrower or any of its Subsidiaries with respect to
any alleged violation of any Environmental Law, or (ii) complaints,
notices or inquiries to the Borrower or any of its Subsidiaries with respect to
potential liability under any Environmental Law, in each case, that could,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect;


 


(c)                                  there
have been no Releases of Hazardous Materials at, on, from or under any property
now or previously owned, operated or leased by the Borrower or any of its
Subsidiaries that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect;


 


(d)                                 the
Borrower and its Subsidiaries have been issued and are in material compliance
with all material permits, certificates, approvals, licenses and other
authorizations under Environmental Laws that are necessary for their businesses
as currently conducted, in each case, except that individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect;


 


(e)                                  other
than properties identified as “no further remedial action planned” or as having
similar status, no property now or, to the knowledge of the Borrower,
previously owned, operated or leased by the Borrower or any of its Subsidiaries
is listed or proposed for listing (with respect to owned property only) on the
National Priorities


 


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List pursuant to CERCLA, on the CERCLIS or on any
similar published, final state list of sites requiring investigation or
clean-up, in each case, that could individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect;


 


(f)                                    there
are no underground storage tanks, active or abandoned, including petroleum
storage tanks, on or under any property now or previously owned, operated, used
or leased by the Borrower or any of its Subsidiaries that, individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect;


 


(g)                                 to
the knowledge of the Borrower, neither the Borrower nor any Subsidiary has
disposed of, whether directly or indirectly, any Hazardous Material in a manner
which could reasonably be expected to lead to claims against the Borrower or
such Subsidiary for any investigation or cleanup work, damage to natural
resources or personal injury, or any other liability under Environmental Laws,
including claims under CERCLA, that could reasonably be expected to have a
Material Adverse Effect;


 


(h)                                 there
are no polychlorinated biphenyls, hexavalent chromium or asbestos present at
any property now or previously owned, operated or leased by the Borrower or any
Subsidiary that, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect; and


 


(i)                                     no
conditions exist at, on or under any property now or, to the knowledge of the
Borrower, previously owned, operated or leased by the Borrower, any of its
Subsidiaries or any predecessor thereof that, with or without the passage of
time, or the giving of notice or both, could reasonably be expected to give
rise to liability under any Environmental Law of the Borrower or any of its
Subsidiaries, in each case, that could reasonably be expected to have a
Material Adverse Effect.


 


SECTION 6.13. 
Accuracy of Information. 
None of the factual information (excluding projections) heretofore or
contemporaneously furnished in writing to any Credit Party by or on behalf of
any Obligor in connection with any Loan Document or any transaction
contemplated hereby (including the Transaction) contains any untrue statement
of a material fact, or omits to state any material fact necessary to make any
information therein, under the circumstances under which it is made, not
misleading, and no factual information (excluding projections) hereafter furnished
in connection with any Loan Document by or on behalf of any Obligor to any
Credit Party will contain any untrue statement of a material fact or will omit
to state any material fact necessary to make any information not misleading on
the date as of which such information is dated or certified.  All projections that have been or will be
made available to any Credit Party by the Borrower have been or will be
prepared in good faith based upon reasonable assumptions (it being understood
that such projections are subject to significant uncertainties and
contingencies beyond the Borrower’s control).


 


SECTION 6.14. 
Regulations T, U and X.  No
Obligor is engaged in the business of extending credit for the purpose of
buying or carrying margin stock, and no proceeds of any Credit Extension will
be used to purchase or carry margin stock or otherwise for a purpose which
violates, or would be inconsistent with, F.R.S. Board Regulations T, U or
X.  Terms for which


 


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meanings are
provided in F.R.S. Board Regulations T, U or X or any regulations substituted
therefor, as from time to time in effect, are used in this Section with
such meanings.


 


SECTION 6.15. 
Absence of Any Undisclosed Liabilities.  There are no material liabilities of any
Obligor of any kind whatsoever, whether accrued, contingent, absolute,
determined, determinable or otherwise, other than those liabilities provided
for or disclosed in the most recently delivered financial statements or those
liabilities that have been disclosed to the Lead Arrangers or are otherwise not
prohibited from being incurred hereunder.


 


ARTICLE VII

COVENANTS


 


SECTION 7.1. 
Affirmative Covenants.  The
Borrower agrees with each Credit Party that on and after the Amendment
Effective Date until the Termination Date has occurred, the Borrower will, and
will cause its Subsidiaries to, perform or cause to be performed the
obligations set forth below.


 


SECTION 7.1.1.  Financial Information, Reports, Notices,
etc.  The Borrower will furnish the
Administrative Agent (which will distribute to each Lender) copies of the
following financial statements, reports, notices and information:


 


(a)                                  as
soon as available and in any event within the earlier of (x) 45 days after the
end of each of the first three Fiscal Quarters of each Fiscal Year and (y) if
Parent or the Borrower is a public reporting company at such time, such earlier
date as the SEC requires the filing of such information (or if Parent or the
Borrower is required to file such information on a Form 10-Q with the SEC,
promptly following such filing), an unaudited consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such Fiscal Quarter and
consolidated statements of income and cash flow of the Borrower and its Subsidiaries
for such Fiscal Quarter and for the period commencing at the end of the
previous Fiscal Year and ending with the end of such Fiscal Quarter, and
including, in comparative form the figures for the corresponding Fiscal Quarter
in, and year to date portion of, the immediately preceding Fiscal Year, in each
case, certified as in accordance with GAAP consistently applied (subject to
normal year-end audit adjustments and the omission of footnotes for the monthly
financial statements) presenting fairly in all material respects the
consolidated financial condition of the Persons covered thereby as at the date
thereof and the results of their operations for the periods then ended by the
chief financial or accounting Authorized Officer of the Borrower (collectively,
the “Unaudited Quarterly Financial Statements”); provided that in
the event Parent files quarterly financial statements with the SEC, the
Borrower may elect to deliver consolidated unaudited quarterly financial
statements for Parent and its Subsidiaries in lieu of Unaudited Quarterly
Financial Statements for the Borrower so long as such financial statements are
accompanied by a consolidating schedule thereto for the Borrower and its
Subsidiaries delivered to the Administrative Agent together therewith;


 


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(b)                                 as
soon as available and in any event within the earlier of (x) 90 days after the
end of each Fiscal Year and (y) if Parent or the Borrower is a public reporting
company at such time, such earlier date as the SEC requires the filing of such
information (or if Parent or the Borrower is required to file such information
on a Form 10-K with the SEC, promptly following such filing), a copy of
the consolidated balance sheet of the Borrower and its Subsidiaries, and the
related consolidated statements of income and cash flow of the Borrower and its
Subsidiaries for such Fiscal Year, setting forth in comparative form the
figures for the immediately preceding Fiscal Year, audited (without any
Impermissible Qualification) by nationally recognized independent public
accountants (collectively, the “Audited Financial Statements”); provided
that in the event Parent is required or desires to file audited financial
statements with the SEC, the Borrower may elect to deliver consolidated audited
financial statements for Parent and its Subsidiaries in lieu of Audited
Financial Statements for the Borrower so long as such financial statements are
accompanied by a consolidating schedule for the Borrower and its Subsidiaries
(which shall not be required to be audited) thereto delivered to the
Administrative Agent together therewith;


 


(c)                                  concurrently
with the delivery of the financial information pursuant to clauses (a) and
(b) for each Fiscal Quarter ending after the Amendment Effective
Date, a Compliance Certificate, executed by the chief financial or accounting
Authorized Officer of the Borrower, showing (i) compliance with the
financial covenants set forth in Section 7.2.4 for the period of
four consecutive Fiscal Quarters then ended (or such shorter period as has
elapsed since the Amendment Effective Date), (ii) (A) the amount of
Available Cash during such Fiscal Quarter and Cumulative Distributable Cash at
the end of such Fiscal Quarter and (B) the aggregate amount of Capital
Expenditures and acquisitions, including any Permitted Acquisitions, financed
with the proceeds of Indebtedness permitted hereunder and identifying the
clause of Section 7.2.2 that such Indebtedness is permitted under,
and whether or not such Indebtedness constitutes Revolving Loans, (iii) reasonably
detailed calculations demonstrating compliance with Sections 7.2.2, 7.2.5,
7.2.6 and 7.2.10, (iv) the amount of Restricted Payments, if
any, that the Borrower intends to pay to Parent pursuant to clause (f) of
Section 7.2.6 on the immediately succeeding date on which Parent’s
dividend policy provides for the payment of a dividend (it being understood
that the amount actually paid may differ from such amount reported), and (v) stating
that no Default has occurred and is continuing (or, if a Default has occurred,
specifying the details of such Default and the action that the Borrower or an
Obligor has taken or proposes to take with respect thereto);


 


(d)                                 as
soon as possible and in any event within five days after the Borrower or any
other Obligor obtains knowledge of the occurrence of a Default, a statement of
an Authorized Officer of the Borrower setting forth details of such Default and
the action which the Borrower or such Obligor has taken and proposes to take
with respect thereto;


 


(e)                                  as
soon as possible and in any event within five days after the Borrower or any
other Obligor obtains knowledge of (i) the occurrence of any material
adverse development with respect to any litigation, action, proceeding or labor
controversy described in Item 6.7 of the Disclosure Schedule, (ii) the
commencement of any


 


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litigation, action, proceeding or labor controversy of
the type and materiality described in Section 6.7, or (iii) any
event that could reasonably be expected to have a Material Adverse Effect,
notice thereof and, to the extent any Lead Arranger reasonably requests, copies
of all documentation relating thereto;


 


(f)                                    promptly
after the sending or filing thereof, copies of all reports, notices,
prospectuses and registration statements which any Obligor files with the SEC
or any national securities exchange;


 


(g)                                 promptly
upon becoming aware of (i) the institution of any steps by any Person to
terminate any Pension Plan, (ii) the failure to make a required
contribution to any Pension Plan if such failure is sufficient to give rise to
a Lien under Section 302(f) of ERISA on the assets of the Borrower or
any of its Subsidiaries, (iii) the taking of any action with respect to a
Pension Plan which could reasonably be expected to result in the requirement
that any Obligor furnish a bond or other security to the PBGC or such Pension
Plan, or (iv) the occurrence of any event with respect to any Pension Plan
which could reasonably be expected to result in the incurrence by any Obligor
of any material liability, fine or penalty, notice thereof and copies of all
documentation relating thereto;


 


(h)                                 promptly
upon receipt thereof, copies of all “management letters” submitted to the
Borrower or any other Obligor by the independent public accountants referred to
in clause (b) in connection with each audit made by such
accountants; and


 


(i)                                     such
other financial and other information as any Lender or Issuer through the
Administrative Agent may from time to time reasonably request (including
information and reports in such detail as the Administrative Agent may
reasonably request with respect to the terms of and information provided
pursuant to the Compliance Certificate).


 


SECTION 7.1.2.  Maintenance of Existence; Compliance with
Laws, etc.  The Borrower will, and
will cause each of its Subsidiaries to, preserve and maintain its legal
existence (except as otherwise permitted by Section 7.2.9), and
comply in all material respects with (i) the terms of (and shall perform
or cause the applicable Subsidiary to perform) its obligations under all
material agreements to which it is a party, except where the failure to do so
could not reasonably be expected to have a Material Adverse Effect and (ii) all
applicable laws, rules, regulations and orders, including the payment (before
the same become delinquent), of all material Taxes, imposed upon the Borrower
or its Subsidiaries or upon their property except to the extent being
diligently contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP have been set aside on the books of
the Borrower or such Subsidiary, as applicable, except where the failure to do
so could not reasonably be expected to have a Material Adverse Effect.


 


SECTION 7.1.3.  Maintenance of Properties.  The Borrower will, and will cause each of its
Subsidiaries to, maintain, preserve, protect and keep its and their respective
material properties in good repair, working order and condition (ordinary wear
and tear excepted), and make necessary repairs, renewals and replacements so
that the business carried on by the


 


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Borrower and its
Subsidiaries may be properly conducted at all times, unless the Borrower or
such Subsidiary determines in good faith that the continued maintenance and/or
preservation of such property is no longer economically desirable, necessary or
useful to the business of the Borrower or any of its Subsidiaries or the
Disposition of such property is otherwise permitted by Sections 7.2.9 or
7.2.10.


 


SECTION 7.1.4.  Insurance.  The Borrower will, and will cause each of its
Subsidiaries to maintain:


 


(a)                                  insurance
on its property with financially sound and reputable insurance companies
against loss and damage in at least the amounts (and with only those
deductibles) customarily maintained, and against such risks (including fire and
other risks insured against by extended coverage) as are typically insured
against in the same general area, by Persons of comparable size engaged in the
same or similar business as the Borrower and its Subsidiaries;


 


(b)                                 liability
insurance in customary amounts for similar companies;


 


(c)                                  all
worker’s compensation, employer’s liability insurance or similar insurance as
may be required under the laws of any state or jurisdiction in which it may be
engaged in business; and


 


(d)                                 flood
insurance in customary amounts for similar companies if any improvements
located on any Mortgaged Property are located within a “Flood Hazard Area” in
any Flood Insurance Rate Map published by the Federal Emergency Management
Agency (or successor agency) and otherwise comply with the National Flood
Insurance Program as set forth in the Flood Disaster Prevention Act of 1975, as
amended from time to time.


 


Without limiting the foregoing, all insurance policies
covering collateral required pursuant to this Section shall name the
Administrative Agent on behalf of the Secured Parties as mortgagee or lender
loss payee, as the case may be (in the case of property insurance), or
additional insured and loss payee (in the case of liability insurance), as
applicable, and provide that no cancellation or modification of the policies
will be made without at least thirty days’ prior written notice (or such
shorter period as the Administrative Agent may approve) to the Administrative
Agent.


 


SECTION 7.1.5.  Books and Records.  The Borrower will, and will cause each of its
Subsidiaries to, keep books and records in accordance with GAAP which
accurately reflect in all material respects all of its business affairs and
transactions and permit each Credit Party or any of their respective
representatives, at reasonable times and intervals upon reasonable notice to
the Borrower, to visit each Obligor’s offices, to discuss such Obligor’s
financial matters with its officers and members of management, and its
independent public accountants (and the Borrower hereby authorizes such
independent public accountant to discuss each Obligor’s financial matters with
each Credit Party or their representatives) and to examine (and photocopy
extracts from) any of the Borrower’s books and records.  The Borrower shall pay any fees of such
independent public accountant incurred in connection with any Credit Party’s
exercise of its rights pursuant to this Section.


 


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SECTION 7.1.6.  Environmental Law Covenant.  The Borrower will, and will cause each of its
Subsidiaries to,


 


(a)                                  use
and operate all of its and their facilities and properties in material
compliance with all Environmental Laws, keep all material permits, approvals,
certificates, licenses and other authorizations relating to environmental
matters in effect and remain in material compliance therewith, handle all
Hazardous Materials in material compliance with all applicable Environmental
Laws, take timely action to resolve any material non-compliance with or
material potential liability under Environmental Laws and keep its owned
property free of any material Lien imposed by any Environmental Law (unless
such non-compliance, liability or Lien is being contested in good faith and
consistent with GAAP); and


 


(b)                                 promptly
notify the Administrative Agent of any environmental matter involving a
potential loss to the Borrower or any of its Subsidiaries of greater than
$1,000,000, individually or $2,500,000 in the aggregate and promptly provide to
the Administrative Agent upon its request any written claim, complaint, report,
notice, inquiry or other document relating thereto.


 


SECTION 7.1.7.  Use of Proceeds.  The Borrower will apply the proceeds of the
Credit Extensions as follows:


 


(a)                                  in
the case of the Initial Term Loans, (i) to consummate the Refinancing (ii) to
redeem or repay all or a portion of the Subordinated Notes and (iii) to
pay fees, costs and expenses in connection therewith, with this Agreement and
the Planned IPO;


 


(b)                                 in
the case of the Revolving Loans, for working capital and general corporate
purposes of the Borrower and the Subsidiary Guarantors, including Permitted
Acquisitions and Restricted Payments;


 


(c)                                  in
the case of the Swing Line Loans and Letters of Credit, for working capital and
general corporate purposes and Restricted Payments of the Borrower and the
Subsidiary Guarantors; and


 


(d)                                 in
the case of the Incremental Term Loans, to finance Permitted Acquisitions
(including the repayment of related Indebtedness of the acquired entity that
will not be assumed by the Borrower or its Subsidiaries and to pay the related
transaction fees and expenses), make Capital Expenditures and to refinance
Indebtedness.


 


SECTION 7.1.8.  Future Guarantors, Security, etc.  The Borrower will, and will cause each U.S.
Subsidiary to, execute any documents, Filing Statements, agreements and
instruments, and take all further action (including filing Mortgages with
respect to any real property having a fair market value of at least $1,000,000)
that may be required under applicable law, or that the Administrative Agent may
reasonably request, in order to effectuate the transactions contemplated by the
Loan Documents and in order to grant, preserve, protect and perfect the
validity and first priority (subject to (including as to priority) Liens
permitted by Section 7.2.3) of the Liens created or intended to be
created by the Loan Documents.  The
Borrower will cause


 


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any subsequently
acquired or organized U.S. Subsidiary to execute a supplement to the Subsidiary
Guaranty and each other applicable Loan Document pursuant to which such U.S.
Subsidiary grants to the Administrative Agent in favor of the Secured Parties a
security interest in, or Mortgage on, substantially all of its owned
assets.  In addition, from time to time,
the Borrower will, at its cost and expense, promptly secure the Obligations by
pledging or creating, or causing to be pledged or created, perfected Liens with
respect to such of its assets and properties as the Administrative Agent or the
Required Lenders shall, in their sole discretion and at any time, reasonably
designate, provided that neither the Borrower nor its U.S. Subsidiaries
shall be required to pledge more than 65% of the Voting Securities of any
first-tier Foreign Subsidiary or any of the Voting Securities of any
non-first-tier Foreign Subsidiary.  Such
Liens will be created under the Loan Documents in form and substance reasonably
satisfactory to the Administrative Agent, and the Borrower shall deliver or
cause to be delivered to the Administrative Agent all such instruments and
documents (including legal opinions, title insurance policies and lien
searches) as the Administrative Agent shall reasonably request to evidence
compliance with this Section. 
Notwithstanding anything to the contrary in this Section, so long as no
Event of Default has occurred and is continuing, the Borrower shall not be
required to deliver a Foreign Pledge Agreement with respect to a Foreign
Subsidiary unless such Foreign Subsidiary is a Significant Subsidiary.  The Borrower hereby agrees that it will
within 60 days after the Amendment Effective Date, deliver amendments to the
existing Mortgages necessary to reflect that such Mortgages secure the
Obligations, in each case, in form and substance reasonably satisfactory to the
Administrative Agent; provided that such time period may be extended
with the consent of the Administrative Agent.


 


SECTION 7.1.9.  Rating of Loans.  The Borrower will, and will cause each of its
Subsidiaries to, use commercially reasonable efforts to ensure that the Loans
continue to be rated by S&P and Moody’s or, in either case, another rating
agency reasonably acceptable to the Lead Arrangers.


 


SECTION 7.2. 
Negative Covenants.  The
Borrower covenants and agrees with each Lender, each Issuer and the
Administrative Agent that on and after the Amendment Effective Date until the
Termination Date has occurred, the Borrower will, and will cause its
Subsidiaries to, perform or cause to be performed the obligations set forth
below.


 


SECTION 7.2.1.  Business Activities.  The Borrower will not, and will not permit
any of its Subsidiaries to, engage in any business activity except those
business activities engaged in on the date of this Agreement and business
activities that are reasonably related, ancillary or complementary thereto or a
reasonable extension, development or expansion thereof.


 


SECTION 7.2.2.  Indebtedness.  The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or permit to exist any
Indebtedness, other than:


 


(a)                                  Indebtedness
in respect of the Obligations;


 


(b)                                 [INTENTIONALLY
OMITTED];


 


(c)                                  Indebtedness
existing as of the Amendment Effective Date which is identified in Item
7.2.2(c) of the Disclosure Schedule, and refinancing of such


 


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Indebtedness in a principal amount not in excess of
that which is outstanding on the Amendment Effective Date plus all
reasonable fees, expenses, accrued interest and any required premium in
connection with such financing;


 


(d)                                 unsecured
Indebtedness (i) incurred in the ordinary course of business of the
Borrower and its Subsidiaries (including open accounts extended by suppliers on
normal trade terms in connection with purchases of goods and services which are
not overdue for a period of more than 90 days or, if overdue for more than 90
days, as to which a dispute exists and adequate reserves in conformity with
GAAP have been established on the books of the Borrower or such Subsidiary) and
(ii) in respect of performance, surety or appeal bonds provided in the
ordinary course of business, but excluding (in each case), Indebtedness
incurred through the borrowing of money or Contingent Liabilities in respect
thereof;


 


(e)                                  Indebtedness
(i) in respect of industrial revenue bonds or other similar governmental
or municipal bonds, (ii) evidencing the deferred purchase price of newly
acquired property or incurred to finance the acquisition of equipment of the
Borrower or its Subsidiaries (pursuant to purchase money mortgages or
otherwise, whether owed to the seller or a third party) used in the ordinary
course of business of the Borrower or its Subsidiaries and any Indebtedness
assumed in connection with such acquisition (provided that such
Indebtedness is incurred within 90 days of the acquisition of such property or
equipment), (iii) in respect of Capitalized Lease Liabilities and (iv) refinancing
of Indebtedness referred to in clauses (i) through (iii); provided
that the aggregate amount of all Indebtedness outstanding pursuant to this clause
(e) shall not at any time exceed $10,000,000;


 


(f)                                    Indebtedness
of any Subsidiary owing to the Borrower or any other Subsidiary and
Indebtedness of the Borrower owing to any Subsidiary, which Indebtedness


 


(i)  shall, if
payable to the Borrower or a Subsidiary Guarantor, and if evidenced by one or
more promissory notes, such promissory notes shall be, duly executed and
delivered in pledge to the Administrative Agent pursuant to a Loan Document and
if payable by the Borrower or any Subsidiary Guarantor, be subordinated to the
Obligations on terms and conditions similar to the terms and conditions of
subordination of the Subordinated Notes; and


 


(ii)  if incurred by
a Subsidiary that is not
a Subsidiary Guarantor owing to the Borrower or a Subsidiary Guarantor,
shall not (when aggregated with the amount of Investments made by the Borrower
and the Subsidiary Guarantors in Subsidiaries
that are not Subsidiary Guarantors under clause (e)(i) of Section 7.2.5)
exceed $5,000,000;


 


(g)                                 [INTENTIONALLY
OMITTED]


 


(h)                                 Indebtedness
of a Person existing at the time such Person became a Subsidiary of the
Borrower in connection with a Permitted Acquisition, but only if such


 


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Indebtedness was not created or incurred in
contemplation of such Person becoming a Subsidiary and the refinancing
Indebtedness in respect thereof;


 


(i)                                     Hedging
Obligations entered into in the ordinary course of business and not for speculative
purposes;


 


(j)                                     Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument drawn against insufficient funds in the ordinary
course of business; provided that such Indebtedness is extinguished
within five Business Days of its incurrence;


 


(k)                                  (A) obligations
in respect of performance bonds, bankers’ acceptances, workers’ compensation
claims, surety, bid or appeal bonds, completion guarantees and payment
obligations in connection with self-insurance or similar obligations provided
by the Borrower or any Subsidiary in the ordinary course of business and (B) obligations
owed to (including in respect of letters of credit for the benefit of) any
Person in connection with workers’ compensation, health, disability or other
employee benefits or property, casualty or liability insurance provided by such
Person to the Borrower or any Subsidiary pursuant to reimbursement or
indemnification obligations to such Person, in each case, incurred in the
ordinary course of business;


 


(l)                                     Indebtedness
arising from agreements of the Borrower or any Subsidiary of the Borrower providing
for indemnification, adjustment of purchase price or similar obligations, in
each case, incurred or assumed in connection with the disposition of any
business, assets or a Subsidiary, other than guarantees of Indebtedness
incurred by any Person acquiring all or any portion of such business, assets or
a Subsidiary for the purpose of financing such acquisition; and


 


(m)                               other
Indebtedness of the Borrower and its Subsidiaries (other than Indebtedness of
Subsidiaries that are not Subsidiary Guarantors owing to the Borrower or
Subsidiary Guarantors) in an aggregate amount at any time outstanding not to
exceed $15,000,000;


 


provided that (A) no
Indebtedness otherwise permitted by clauses (e) or (f)(ii) shall
be assumed, created or otherwise incurred if a Default has occurred and is then
continuing or would result therefrom and (B) in the event that an item of
Indebtedness (or any portion thereof) meets the criteria of more than one of
the types of Indebtedness described above, the Borrower, in its sole discretion,
will classify such item of Indebtedness (or any portion thereof) at the time of
incurrence and will only be required to include the amount and type of such
Indebtedness in one of the above clauses.


 


SECTION 7.2.3.  Liens.  The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or permit to exist any Lien
upon any of its property (including Capital Securities of any Person), revenues
or assets, whether now owned or hereafter acquired, except:


 


(a)                                  Liens
securing payment of the Obligations;


 


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(b)                                 [INTENTIONALLY
OMITTED]


 


(c)                                  Liens
existing as of the Amendment Effective Date and disclosed in Item 7.2.3(c) of
the Disclosure Schedule securing Indebtedness described in clause (c) of
Section 7.2.2, and refinancings of such Indebtedness; provided
that no such Lien shall encumber any additional property;


 


(d)                                 Liens
securing Indebtedness of the type permitted under clause (e) of Section 7.2.2;
provided that (i) such Lien is granted within 90 days after such
Indebtedness is incurred, (ii) the Indebtedness secured thereby does not
exceed the cost or the fair market value of the applicable property,
improvements or equipment at the time of such acquisition (or construction) and
(iii) such Lien attaches only to the assets that are the subject of the
Indebtedness referred to in such clause and proceeds thereof and additions and
accessions thereto;


 


(e)                                  Liens
securing Indebtedness permitted by clause (h) of Section 7.2.2;
provided that such Liens existed prior to such Person becoming a
Subsidiary, were not created in anticipation thereof and attach only to the
assets of such Person acquired;


 


(f)                                    Liens
in favor of carriers, warehousemen, mechanics, suppliers, repairmen,
materialmen and landlords and other Liens imposed by law or granted in the
ordinary course of business for amounts not overdue or being diligently
contested in good faith by appropriate proceedings;


 


(g)                                 Liens
incurred or deposits made in the ordinary course of business in connection with
worker’s compensation, unemployment insurance or other forms of governmental
insurance or benefits, or to secure performance of tenders, statutory
obligations, bids, leases or other similar obligations (other than for borrowed
money) entered into in the ordinary course of business or to secure obligations
on surety and appeal bonds or performance bonds;


 


(h)                                 judgment
Liens in existence for less than 45 days after the entry thereof or with
respect to which execution has been stayed or the payment of which is covered
in full (subject to a customary deductible) by insurance maintained with
reputable insurance companies and which do not otherwise result in an Event of
Default under Section 8.1.6;


 


(i)                                     easements,
rights-of-way, zoning restrictions, restrictive covenants, minor defects or
irregularities in title and other similar encumbrances not interfering in any
material respect with the value or use of the property to which such Lien is
attached;


 


(j)                                     Liens
for Taxes not at the time delinquent or thereafter payable without penalty or
being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set aside on
its books;


 


(k)                                  Liens
resulting from operation of law with respect to any judgments, awards or orders
to the extent that such judgments, awards or orders do not cause or constitute
a Default under this Agreement; provided that if any such Liens are on


 


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Collateral, such Liens are being diligently contested
in good faith by appropriate proceedings;


 


(l)                                     Liens
in the form of licenses, leases or subleases granted or created by the Borrower
or any Subsidiary, which licenses, leases or subleases do not interfere, individually
or in the aggregate, in any material respect with the business of the Borrower
or such Subsidiary or individually or in the aggregate materially impair the
use (for its intended purpose) or the value of the property subject thereto;


 


(m)                               Liens
on fixtures or personal property held by or granted to landlords pursuant to leases
to the extent that such Liens are not yet due and payable;


 


(n)                                 Liens
in favor of the trustee under Section 7.07 of the indenture, dated as of July 31,
2003, as amended, supplemented, amended and restated or otherwise modified in
accordance with Section 7.2.11, in respect of the Subordinated
Notes for the benefit of the trustee and not for the benefit of the holders of
the Subordinated Notes for fees, expenses and indemnities of the trustee; and


 


(o)                                 other Liens securing obligations in an amount not to exceed
$5,000,000 at any time outstanding.


 


SECTION 7.2.4.  Financial Condition and
Operations.  The Borrower will
not permit any of the events set forth below to occur.


 


(a)                                  The
Borrower will not permit the Leverage Ratio as of the last day of any Fiscal
Quarter ending after the Amendment Effective Date to be greater than 4.00:1.00.


 


(b)                                 The
Borrower will not permit the Interest Coverage Ratio as of the last day of any
Fiscal Quarter ending after the Amendment Effective Date to be less than
3.25:1.00.


 


SECTION 7.2.5.  Investments.  The Borrower will not, and will not permit
any of its Subsidiaries to, purchase, make, incur, assume or permit to exist
any Investment in any other Person, except:


 


(a)                                  Investments
existing on the Amendment Effective Date and identified in Item 7.2.5(a) of
the Disclosure Schedule;


 


(b)                                 Cash
Equivalent Investments;


 


(c)                                  Investments
received in connection with the bankruptcy or reorganization of, or settlement
of delinquent accounts and disputes with, customers and suppliers, in each case
in the ordinary course of business;


 


(d)                                 Investments
constituting Capital Expenditures;


 


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(e)                                  Investments
by way of contributions to capital or purchases of Capital Securities (i) by
the Borrower in any Subsidiaries or by any Subsidiary in other Subsidiaries; provided
that the aggregate amount of intercompany loans made pursuant to clause (f)(ii) of
Section 7.2.2 and Investments under this clause made by the
Borrower and Subsidiary Guarantors in Subsidiaries that are not Subsidiary
Guarantors shall not exceed the amount set forth in clause(f)(ii) of
Section 7.2.2 at any time, or (ii) by any Subsidiary in the
Borrower;


 


(f)                                    Investments
constituting (i) accounts receivable arising, (ii) trade debt granted,
or (iii) deposits made in connection with the purchase price of goods or
services, in each case in the ordinary course of business;


 


(g)                                 Investments
by way of the acquisition of Capital Securities permitted pursuant to clause
(b) of Section 7.2.9;


 


(h)                                 Investments
consisting of any deferred portion of the sales price received by the Borrower
or any Subsidiary in connection with any Disposition permitted under Section 7.2.10;


 


(i)                                     Investments
result from loans to employees in the ordinary course of business in an
aggregate amount not to exceed $1,000,000 at any one time outstanding;


 


(j)                                     Investments
from receipt of non-cash consideration from a Disposition made in compliance
with Section 7.2.10;


 


(k)                                  Investments
in Hedging Obligations incurred in compliance with Section 7.2.2;


 


(l)                                     Contingent
Liabilities to the extent permitted by Section 7.2.2;


 


(m)                               other than during a Dividend Suspension Period, other
Investments, in an aggregate amount not to exceed the amount of Cumulative
Distributable Cash; and


 


(n)                                 other Investments in an amount not to exceed $5,000,000
since the Amendment Effective Date;


 


provided
that


 


(o)                                 any
Investment which when made complies with the requirements of the definition of
the term “Cash Equivalent Investment” may continue to be held notwithstanding
that such Investment if made thereafter would not comply with such
requirements; and


 


(p)                                 no
Investment otherwise permitted by clauses (e)(i) (to the extent
such Investment constitutes an Investment by an Obligor in a Foreign
Subsidiary), (g), (m) or (n) shall be permitted to be made
if any Default has occurred and is then continuing or would result therefrom.


 


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SECTION 7.2.6.  Restricted Payments,
etc.  The Borrower will not,
and will not permit any of its Subsidiaries to, declare or make a Restricted
Payment, or make any deposit for any Restricted Payment, other than:


 


(a)                                  Restricted
Payments made by Subsidiaries to the Borrower or wholly-owned Subsidiaries;


 


(b)                                 Restricted
Payments made by the Borrower to Parent (i) pursuant to the Tax Sharing
Agreement; provided that the amount of such Restricted Payment shall not
exceed the amount of taxes that the Borrower would have been liable for on a
stand alone basis on a consolidated tax return with its Subsidiaries, (ii) to
pay franchise taxes and other overhead expenses of Parent in an amount not to
exceed $1,000,000 in any Fiscal Year and (iii) in order to permit Parent
to pay Additional Interest (as defined in the Parent Notes Indenture (as defined
in the Parent Guaranty)) in cash in an aggregate amount not exceeding $200,000;


 


(c)                                  repurchases
of Capital Securities from former employees, directors and officers of Parent
and its Subsidiaries in an amount not to exceed $2,000,000 in any Fiscal Year; provided
that, to the extent the amount of repurchases permitted to be made in any
Fiscal Year pursuant to this clause exceeds the aggregate amount of repurchases
actually made by the Borrower and its Subsidiaries during such Fiscal Year, the
excess amount may be carried forward to (but only to) the next succeeding
Fiscal Year, and any such amount carried forward to a succeeding Fiscal Year
shall be deemed to be used following the Borrower and its Subsidiaries using
the amount of repurchases permitted by this clause in such succeeding Fiscal
Year, without giving effect to such carry-forward;


 


(d)                                 repurchases of Capital Securities deemed to occur upon
exercise of stock options if such Capital Securities represents a portion of
the exercise price of such options;


 


(e)                                  Restricted
Payments made by the Borrower to Parent that are necessary to consummate the
Transaction;


 


(f)                                    other
than during any Dividend Suspension Period (i) so long as no Default has
occurred and is continuing, payments to Parent to (A) service cash
interest payments on the Parent Notes that are due and payable or are expected
to become due or payable within 10 days of such Restricted Payment, (B) fund
redemptions or open market purchases of Parent Notes, or (C) fund redemptions
or open market purchases of Parent’s Capital Securities and (ii) so long
as no Default has occurred and is continuing at the time such payment is
declared and so long as no Event of Default has occurred and is continuing at
the time such payment is made, payments to Parent to fund dividend payments on
Parent’s Capital Securities; provided that the aggregate amount of all payments
pursuant to this clause (f) shall not exceed Cumulative
Distributable Cash; and


 


(g)                                 the Monitoring Agreement Buyout Payment.


 


SECTION 7.2.7.  [INTENTIONALLY OMITTED]


 


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SECTION 7.2.8.  Issuance of Capital
Securities.  The Borrower will
not, and will not permit any of its Subsidiaries to issue any Capital
Securities (whether for value or otherwise) to any Person other than (a) in
the case of Subsidiaries, to the Borrower or another wholly owned Subsidiary or
(b) in the case of the Borrower, to Parent, so long as such Capital
Securities are pledged and delivered to the Administrative Agent pursuant to a
Loan Document.


 


SECTION 7.2.9.  Consolidation, Merger, Permitted
Acquisitions, etc.  The Borrower will
not, and will not permit any of its Subsidiaries to, liquidate or dissolve,
consolidate with, or merge into or with, any other Person, or purchase or
otherwise acquire all or substantially all of the assets of any Person (or any
division thereof), except


 


(a)                                  any
Subsidiary may liquidate or dissolve voluntarily into, and may merge with and
into, the Borrower or any other Subsidiary (provided that a Guarantor
may only liquidate or dissolve into, or merge with and into, the Borrower or
another Guarantor), and the assets or Capital Securities of any Subsidiary may
be purchased or otherwise acquired by the Borrower or any other Subsidiary (provided
that the assets or Capital Securities of any Guarantor may only be purchased or
otherwise acquired by the Borrower or another Guarantor); provided that
in no event shall any Pledged Subsidiary consolidate with or merge with and
into any Subsidiary other than another Pledged Subsidiary unless after giving
effect thereto, the Administrative Agent shall have a perfected pledge of, and
security interest in and to, at least the same percentage of the issued and
outstanding interests of Capital Securities (on a fully diluted basis) of the
surviving Person as the Administrative Agent had immediately prior to such
merger or consolidation in form and substance satisfactory to the
Administrative Agent and its counsel, pursuant to such documentation and
opinions as shall be reasonably necessary in the opinion of the Administrative
Agent to create, perfect or maintain the collateral position of the Secured
Parties therein; and


 


(b)                                 so
long as no Default has occurred and is continuing or would occur after giving
effect thereto, the Borrower or any of its Subsidiaries may consummate one or
more Permitted Acquisitions; provided that (i) the aggregate
purchase price (including the assumption of Indebtedness and excluding
consideration to the extent consisting of Capital Securities of Parent) for
such Permitted Acquisition does not exceed $25,000,000 and (ii) the
aggregate amount spent by the Borrower for all Permitted Acquisitions since the
Amendment Effective Date does not exceed the sum of (A) $100,000,000
and (B) the unused amount of Investments permitted pursuant to clause
(m) of Section 7.2.5, and in the case of a Permitted Acquisition
of Capital Securities, such Permitted Acquisition shall result in the
acquisition of a wholly owned U.S. Subsidiary (by merger, stock purchase or
purchase of assets); provided that in the event that the Borrower or any
of its Subsidiaries wants to consummate a Permitted Acquisition at any time a
Dividend Suspension Period has occurred and is continuing, it may not use any
amounts available under clause (ii)(B) to consummate such Permitted
Acquisition.


 


SECTION 7.2.10.  Permitted Dispositions.  The Borrower will not, and will not permit
any of its Subsidiaries to, Dispose of any of the Borrower’s or such
Subsidiaries’ assets


 


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(including accounts receivable and Capital Securities of
Subsidiaries) to any Person in one transaction or series of transactions unless
such Disposition is:


 


(a)                                  inventory or obsolete, damaged, worn out, surplus or
outdated property Disposed of in the ordinary course of its business;


 


(b)                                 permitted by Section 7.2.9;


 


(c)                                  (i) for
fair market value and the consideration received consists of no less than 75%
cash, (ii) the Net Disposition Proceeds received from such Disposition, together
with the Net Disposition Proceeds of all other assets Disposed of pursuant to
this clause (c) since the Amendment Effective Date, does not in the
aggregate exceed $15,000,000 over the term of this Agreement and (iii) the
Net Disposition Proceeds from such Disposition are applied pursuant to Sections
3.1.1 and 3.1.2;


 


(d)                                 from one Obligor to another Obligor;


 


(e)                                  a Specified Asset Sale made for fair market value and the
consideration received consists of no less than 75% cash;


 


(f)                                    a Disposition of Cash Equivalent Investments;


 


(g)                                 a Disposition which constitutes a transfer of assets permitted
by Sections 7.2.2, 7.2.3, 7.2.5 or 7.2.6;


 


(h)                                 the grant in the ordinary course of business of any
non-exclusive license of patents, trademarks, registrations thereof and other
similar intellectual property;


 


(i)                                     any release of intangible claims or rights in connection
with the loss or settlement of a bona fide lawsuit, dispute or other
controversy;


 


(j)                                     an Asset Swap;


 


(k)                                  leases and subleases of assets or properties in the ordinary
course of business not interfering in any material respect with the business of
the Borrower or any of its Subsidiaries; and


 


(l)                                     a sale or discount, in each case without recourse, of
accounts receivable arising in the ordinary course of business, but only in
connection with the compromise or collection thereof.


 


SECTION 7.2.11.  Modification of Certain
Agreements.  The Borrower will
not, and will not permit any of its Subsidiaries to, consent to any amendment,
supplement, waiver or other modification of, or enter into any forbearance from
exercising any rights with respect to the terms or provisions contained in, the
Organic Documents of the Borrower or any of its Subsidiaries if the result
thereof would have an adverse effect on the Lenders (it being agreed that any
modification of any such Organic Document would not have an adverse effect on
the


 


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Lenders if such
modification is made to effectuate a transaction otherwise permitted by the
terms of any Loan Document).


 


SECTION 7.2.12.  Transactions with
Affiliates.  The Borrower will
not, and will not permit any of its Subsidiaries to, enter into or cause or
permit to exist any arrangement, transaction or contract (including for the
purchase, lease or exchange of property or the rendering of services) with any
of its other Affiliates, unless such arrangement, transaction or contract is on
fair and reasonable terms no less favorable to the Borrower or such Subsidiary
than it could obtain in an arm’s-length transaction with a Person that is not
an Affiliate, other than:


 


(a)                                  transactions among Parent, the Borrower and its U.S.
Subsidiaries;


 


(b)                                 loans and advances to employees in the ordinary course of
business;


 


(c)                                  any Restricted Payment permitted by Section 7.2.6
or Investments permitted by Section 7.2.5;


 


(d)                                 issuance and sale of Capital Securities of the Borrower
permitted by Section 7.2.8;


 


(e)                                  any issuance of securities, or other payments, awards or
grants in cash, Capital Securities or otherwise pursuant to, or the funding of,
employment arrangements, stock options and stock ownership plans approved by
the Board of Directors of the Borrower;


 


(f)                                    reasonable
fees and compensation paid to, an indemnity provided for the benefit of,
officers, directors, employees or consultants of the Borrower or any Subsidiary
as determined in good faith by the Borrower’s Board of Directors;


 


(g)                                 any
transaction with a Subsidiary or joint venture or similar entity which would
constitute a transaction with an Affiliate solely because the Borrower or a
Subsidiary owns an equity interest in or otherwise controls such Subsidiary,
joint venture or similar entity;


 


(h)                                 the Monitoring Agreement Buyout Payment; and


 


(i)                                     in connection with the consummation of the Transaction.


 


SECTION 7.2.13.  Restrictive Agreements,
etc.  The Borrower will not,
and will not permit any of its Subsidiaries to, enter into any agreement
prohibiting


 


(a)                                  the creation or assumption of any Lien upon its properties,
revenues or assets, whether now owned or hereafter acquired;


 


(b)                                 the ability of any Obligor to amend or otherwise modify any
Loan Document; or


 


75





















 


(c)                                  the
ability of any Subsidiary to make any payments, directly or indirectly, to the
Borrower, including by way of dividends, advances, repayments of loans,
reimbursements of management and other intercompany charges, expenses and
accruals or other returns on investments.


 


The foregoing prohibitions shall not apply to (i) any
Loan Document, (ii) in the case of clause (a), (A) any
agreement governing any Indebtedness permitted by clause (e) of Section 7.2.2
as to the assets financed with the proceeds of such Indebtedness, (B) customary
provisions restricting subletting or assignment of any lease governing a leasehold
interest, (C) customary provisions restricting assignment of any agreement
entered into in the ordinary course of business, (D) any restrictions by
the holder of a Lien permitted by Section 7.2.3 on the transfer of
the asset or assets subject thereto, (E) customary restrictions and
conditions contained in any agreement relating to the sale of any asset
permitted under Section 7.2.10 pending the consummation of such
sale, (F) any agreement in effect at the time any Subsidiary becomes a
Subsidiary of the Borrower, so long as such agreement was not entered into in
contemplation of such person becoming a Subsidiary of the Borrower, (G) restrictions
on cash or other deposits or net worth requirements imposed by customers under
contracts entered into in the ordinary course of business, (H) in the case
of any joint venture (including any Subsidiary which is a joint venture) which
is not an Obligor, restrictions in such person’s organization or governing documents
or pursuant to any joint venture agreement or stockholders agreement solely to
the extent of the Capital Securities of or assets held in the subject joint
venture or other entity or (I) any agreement in effect on the Amendment
Effective Date and set forth on Item 7.2.13 of the Disclosure Schedule and
(iii) in the case of clauses (a) and (c), any agreement
of a Foreign Subsidiary governing the Indebtedness permitted by clause (f)(ii) of
Section 7.2.2.


 


SECTION 7.2.14.  Sale and Leaseback.  The Borrower will not, and will not permit
any of its Subsidiaries to, directly or indirectly enter into any agreement or
arrangement providing for the sale or transfer by it of any property (now owned
or hereafter acquired) to a Person and the subsequent lease or rental of such
property or other similar property from such Person unless such transaction
complies with Sections 7.2.2 and 7.2.10.


 


SECTION 7.2.15.  Fiscal Year.  The Borrower will not, and will not permit
any of its Subsidiaries to, modify or make any other change to its Fiscal Year.


 


ARTICLE VIII

EVENTS OF DEFAULT


 


SECTION 8.1.  Listing of Events of
Default.  Each of the
following events or occurrences described in this Article shall constitute
an “Event of Default”.


 


SECTION 8.1.1.  Non-Payment of
Obligations.  The Borrower
shall default in the payment or prepayment when due of


 


(a)                                  any principal of any Loan, or any Reimbursement Obligation
or any deposit of cash for collateral purposes pursuant to Section 2.6.4;
or


 


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(b)                                 any fee described in Article III, any interest
on any Loan or any other monetary Obligation to the extent invoiced, and such
default shall continue unremedied for a period of five days after such amount
was due.


 


SECTION 8.1.2.  Breach of Warranty.  Any representation or warranty of any Obligor
made or deemed to be made in any Loan Document (including any certificates
delivered pursuant to Article V) is or shall be incorrect when made
or deemed to have been made in any material respect.


 


SECTION 8.1.3.  Non-Performance of
Certain Covenants and Obligations. 
The Borrower shall default in the due performance or observance of any
of its obligations under: (a) clauses (d) and (e) of
Section 7.1.1, Section 7.1.7 or Section 7.2
or any Obligor shall default in the due performance or observance of its
obligations under Section 5.9(b) of the Parent Guaranty and Pledge
Agreement; or (b) Section 7.1.1 (other than clauses (d) and
(e) thereof) and such default shall continue unremedied for a
period of 5 days after the earlier to occur of (i) notice thereof given to
the Borrower by the Administrative Agent or any Lender or (ii) the date on
which any Obligor has knowledge of such default.


 


SECTION 8.1.4.  Non-Performance of Other
Covenants and Obligations. 
Any Obligor shall default in the due performance and observance of any
other agreement contained in any Loan Document executed by it, and such default
shall continue unremedied for a period of 30 days after the earlier to
occur of (i) notice thereof given to the Borrower by the Administrative
Agent or any Lender or (ii) the date on which any Obligor has knowledge of
such default.


 


SECTION 8.1.5.  Default on Other
Indebtedness.  A default shall
occur in the payment of any amount when due (subject to any applicable grace
period), whether by acceleration or otherwise, of any principal or stated
amount of, or interest or fees on, any Indebtedness (other than Indebtedness
described in Section 8.1.1) of the Borrower or any of its
Subsidiaries or any other Obligor having a principal or stated amount,
individually or in the aggregate, in excess of $7,500,000, or a default shall
occur in the performance or observance of any obligation or condition with
respect to such Indebtedness if the effect of such default is to accelerate the
maturity of any such Indebtedness or such default shall continue unremedied for
any applicable period of time sufficient to permit the holder or holders of
such Indebtedness, or any trustee or agent for such holders, to cause or
declare such Indebtedness to become due and payable or to require such
Indebtedness to be prepaid, redeemed, purchased or defeased, or require an
offer to purchase or defease such Indebtedness to be made, prior to its
expressed maturity.


 


SECTION 8.1.6.  Judgments.  Any final or non-appealable judgment or order
for the payment of money individually or in the aggregate in excess of
$7,500,000 (exclusive of any amounts fully covered by insurance (less
any applicable deductible) and as to which the insurer has not disputed its
responsibility to cover such judgment or order) shall be rendered against the
Borrower or any of its Subsidiaries or any other Obligor and such judgment
shall not have been vacated or discharged or stayed or bonded pending appeal
within 60 days after the entry thereof or enforcement proceedings shall
have been commenced by any creditor upon such judgment or order.


 


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SECTION 8.1.7.  Pension Plans.  Any of the following events shall occur with
respect to any Pension Plan


 


(a)                                  the
institution of any steps by the Borrower, any member of its Controlled Group or
any other Person to terminate a Pension Plan if, as a result of such
termination, the Borrower or any of its Subsidiaries could reasonably be
expected to be required to make a contribution to such Pension Plan, or could
reasonably expect to incur a liability or obligation to such Pension Plan, in
either case in excess of $7,500,000; or


 


(b)                                 a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under Section 302(f) of ERISA
on the assets of the Borrower or any of its Subsidiaries.


 


SECTION 8.1.8.  Change in Control.  Any Change in Control shall occur.


 


SECTION 8.1.9.  Bankruptcy, Insolvency,
etc.  Parent, the Borrower or
any Significant Subsidiary shall


 


(a)                                  become
insolvent or generally fail to pay, or admit in writing its inability or
unwillingness generally to pay, its debts as they become due;


 


(b)                                 apply for, consent to, or acquiesce in the appointment of a
trustee, receiver, sequestrator or other custodian for any substantial part of
the property of any thereof, or make a general assignment for the benefit of
creditors;


 


(c)                                  in
the absence of such application, consent or acquiesce to, or permit or suffer
to exist, the appointment of a trustee, receiver, sequestrator or other
custodian for a substantial part of the property of any thereof, and such
trustee, receiver, sequestrator or other custodian shall not be discharged
within 60 days;


 


(d)                                 permit
or suffer to exist the commencement of any bankruptcy, reorganization, debt
arrangement or other case or proceeding under any bankruptcy or insolvency law
or any dissolution, winding up or liquidation proceeding, in respect thereof,
and, if any such case or proceeding is not commenced by Parent, the Borrower or
any Significant Subsidiary, such case or proceeding shall be consented to or
acquiesced in by Parent, the Borrower or such Significant Subsidiary, as the
case may be, or shall result in the entry of an order for relief or shall
remain for 60 days undismissed, or


 


(e)                                  take any action authorizing, or in furtherance of, any of
the foregoing.


 


SECTION 8.1.10.  Impairment of Security,
etc.  Any Loan Document or any
Lien granted thereunder shall (except in accordance with its terms), in whole
or in part, terminate, cease to be effective or cease to be the legally valid,
binding and enforceable obligation of any Obligor party thereto; any Obligor or
any other party shall, directly or indirectly, contest in any manner such
effectiveness, validity, binding nature or enforceability; or, except as
permitted under any Loan Document, any Lien securing any Obligation shall, in
whole or in part, cease to


 


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be
a perfected first priority Lien (subject to (including with respect to
priority) Liens otherwise permitted hereunder).


 


SECTION 8.2.  Action if Bankruptcy.  If any Event of Default described in clauses
(a) through (d) of Section 8.1.9 with respect
to the Borrower shall occur, the Commitments (if not theretofore terminated)
shall automatically terminate and the outstanding principal amount of all
outstanding Loans and all other Obligations (including Reimbursement
Obligations) shall automatically be and become immediately due and payable,
without notice or demand to any Person and each Obligor shall automatically and
immediately be obligated to Cash Collateralize all Letter of Credit
Outstandings.


 


SECTION 8.3.  Action if Other Event of
Default.  If any Event of
Default (other than any Event of Default described in clauses (a) through
(d) of Section 8.1.9 with respect to the Borrower)
shall occur for any reason, whether voluntary or involuntary, and be
continuing, the Administrative Agent, upon the direction of the Required
Lenders, shall by notice to the Borrower declare all or any portion of the
outstanding principal amount of the Loans and other Obligations (including
Reimbursement Obligations) to be due and payable and/or the Commitments (if not
theretofore terminated) to be terminated, whereupon the full unpaid amount of
such Loans and other Obligations which shall be so declared due and payable
shall be and become immediately due and payable, without further notice, demand
or presentment, and/or, as the case may be, the Commitments shall terminate and
the Borrower shall automatically and immediately be obligated to Cash
Collateralize all Letter of Credit Outstandings.


 


ARTICLE IX

THE ADMINISTRATIVE AGENT


 


SECTION 9.1.  Actions.  Each Lender hereby appoints Credit Suisse as
its Administrative Agent under and for purposes of each Loan Document.  Each Lender authorizes the Administrative
Agent to act on behalf of such Lender under each Loan Document and, in the
absence of other written instructions from the Required Lenders received from
time to time by the Administrative Agent (with respect to which the
Administrative Agent agrees that it will comply, except as otherwise provided
in this Section or as otherwise advised by counsel in order to avoid
contravention of applicable law), to exercise such powers hereunder and
thereunder as are specifically delegated to or required of the Administrative
Agent by the terms hereof and thereof, together with such powers as may be
reasonably incidental thereto.  Each
Lender hereby indemnifies (which indemnity shall survive any termination of
this Agreement) the Administrative Agent, pro  rata according to
such Lender’s proportionate Total Exposure Amount, from and against any and all
liabilities, obligations, losses, damages, claims, costs or expenses of any
kind or nature whatsoever which may at any time be imposed on, incurred by, or
asserted against, the Administrative Agent in any way relating to or arising
out of any Loan Document (including reasonable attorneys’ fees), and as to
which the Administrative Agent is not reimbursed by the Borrower; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, claims, costs or expenses which are
determined by a court of competent jurisdiction in a final proceeding to have
resulted from the


 


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Administrative
Agent’s gross negligence or willful misconduct.  The Administrative Agent shall not be
required to take any action under any Loan Document, or to prosecute or defend
any suit in respect of any Loan Document, unless it is indemnified hereunder to
its satisfaction.  If any indemnity in
favor of the Administrative Agent shall be or become, in the Administrative
Agent’s determination, inadequate, the Administrative Agent may call for
additional indemnification from the Lenders and cease to do the acts
indemnified against hereunder until such additional indemnity is given.  The Administrative Agent is authorized to
release collateral that is permitted to be sold or released pursuant to the
terms of the Loan Documents.


 


SECTION 9.2.  Funding Reliance, etc.  Unless the Administrative Agent shall have
been notified in writing by any Lender by 3:00 p.m. on the Business Day
prior to a Borrowing that such Lender will not make available the amount which
would constitute its Percentage of such Borrowing on the date specified
therefor, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent and, in reliance upon such
assumption, make available to the Borrower a corresponding amount.  If and to the extent that such Lender shall
not have made such amount available to the Administrative Agent, such Lender
and the Borrower severally agree to repay the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date the Administrative Agent made such amount available to the
Borrower to the date such amount is repaid to the Administrative Agent, at the
interest rate applicable at the time to Loans comprising such Borrowing (in the
case of the Borrower) and (in the case of a Lender), at the Federal Funds Rate
(for the first two Business Days after which such amount has not been repaid),
and thereafter at the interest rate applicable to Loans comprising such
Borrowing.


 


SECTION 9.3.  Exculpation.  Neither the Administrative Agent nor any of
its directors, officers, employees or agents shall be liable to any Secured
Party for any action taken or omitted to be taken by it under any Loan
Document, or in connection therewith, except for its own willful misconduct or
gross negligence, nor responsible for any recitals or warranties herein or
therein, nor for the effectiveness, enforceability, validity or due execution
of any Loan Document, nor for the creation, perfection or priority of any Liens
purported to be created by any of the Loan Documents, or the validity,
genuineness, enforceability, existence, value or sufficiency of any collateral
security, nor to make any inquiry respecting the performance by any Obligor of
its Obligations.  Any such inquiry which
may be made by the Administrative Agent shall not obligate it to make any
further inquiry or to take any action. 
The Administrative Agent shall be entitled to rely upon advice of counsel
concerning legal matters and upon any notice, consent, certificate, statement
or writing which the Administrative Agent believes to be genuine and to have
been presented by a proper Person.


 


SECTION 9.4.  Successor.  The Administrative Agent may resign as such
at any time upon at least 30 days’ prior notice to the Borrower and all
Lenders.  If the Administrative Agent at
any time shall resign, the Required Lenders may, with the consent of the
Borrower (not to be unreasonably withheld or delayed) so long as no Default
then exists, appoint another Lender as a successor Administrative Agent which
shall thereupon become the Administrative Agent hereunder.  If no successor Administrative Agent shall
have been so appointed, and shall have accepted such appointment, within
30 days after the retiring Administrative Agent’s giving notice of
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders,


 


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appoint a
successor Administrative Agent, which shall be one of the Lenders or a
commercial banking institution organized under the laws of the United States
(or any State thereof) or a United States branch or agency of a commercial
banking institution, and having a combined capital and surplus of at least
$250,000,000; provided that if such retiring Administrative Agent is
unable to find a commercial banking institution which is willing to accept such
appointment and which meets the qualifications set forth in above, the retiring
Administrative Agent’s resignation shall nevertheless thereupon become
effective and the Lenders shall assume and perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required Lenders
appoint a successor as provided for above. 
Upon the acceptance of any appointment as Administrative Agent hereunder
by a successor Administrative Agent, such successor Administrative Agent shall
be entitled to receive from the retiring Administrative Agent such documents of
transfer and assignment as such successor Administrative Agent may reasonably
request, and shall thereupon succeed to and become vested with all rights,
powers, privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations under the Loan Documents. 
After any retiring Administrative Agent’s resignation hereunder as the
Administrative Agent, the provisions of this Article shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was the
Administrative Agent under the Loan Documents, and Sections 10.3 and
10.4 shall continue to inure to its benefit.


 


SECTION 9.5.  Loans by Credit Suisse
or any Successor Administrative Agent.  Credit Suisse (and any successor Administrative
Agent) shall have the same rights and powers with respect to (a) the
Credit Extensions made by it or any of its Affiliates, and (b) the Notes
held by it or any of its Affiliates as any other Lender and may exercise the
same as if it were not the Administrative Agent.  Credit Suisse and its Affiliates (and any
successor Administrative Agent) may accept deposits from, lend money to, and
generally engage in any kind of business with the Borrower or any Subsidiary or
Affiliate of the Borrower as if Credit Suisse (or such successor Administrative
Agent) were not the Administrative Agent hereunder.


 


SECTION 9.6.  Credit Decisions.  Each Lender acknowledges that it has,
independently of the Administrative Agent and each other Lender, and based on
such Lender’s review of the financial information of the Borrower, the Loan
Documents (the terms and provisions of which being satisfactory to such Lender)
and such other documents, information and investigations as such Lender has
deemed appropriate, made its own credit decision to extend its
Commitments.  Each Lender also
acknowledges that it will, independently of the Administrative Agent and each
other Lender, and based on such other documents, information and investigations
as it shall deem appropriate at any time, continue to make its own credit
decisions as to exercising or not exercising from time to time any rights and
privileges available to it under the Loan Documents.


 


SECTION 9.7.  Copies, etc.  The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by the Borrower pursuant to the terms of the
Loan Documents (unless concurrently delivered to the Lenders by the
Borrower).  The Administrative Agent will
distribute to each Lender each document or instrument received for its account
and copies of all other communications received by the Administrative Agent
from the Borrower for distribution to the Lenders by the Administrative Agent
in accordance with the terms of the Loan Documents.


 


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SECTION 9.8.  Reliance by
Administrative Agent.                         The
Administrative Agent shall be entitled to rely upon any certification, notice
or other communication (including any thereof by telephone, telecopy, telegram
or cable) believed by it to be genuine and correct and to have been signed or
sent by or on behalf of the proper Person, and upon advice and statements of
legal counsel, independent accountants and other experts selected by the Administrative
Agent.  As to any matters not expressly
provided for by the Loan Documents, the Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, thereunder in
accordance with instructions given by the Required Lenders or all of the
Lenders as is required in such circumstance, and such instructions of such
Lenders and any action taken or failure to act pursuant thereto shall be
binding on all Secured Parties.  For
purposes of applying amounts in accordance with this Section, the
Administrative Agent shall be entitled to rely upon any Secured Party that has
entered into a Rate Protection Agreement with any Obligor for a determination
(which such Secured Party agrees to provide or cause to be provided upon request
of the Administrative Agent) of the outstanding Obligations owed to such
Secured Party under any Rate Protection Agreement.  Unless it has actual knowledge evidenced by
way of written notice from any such Secured Party or the Borrower to the
contrary, the Administrative Agent, in acting in such capacity under the Loan
Documents, shall be entitled to assume that no Rate Protection Agreements or
Obligations in respect thereof are in existence or outstanding between any
Secured Party and any Obligor.


 


SECTION 9.9.  Defaults.  The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of a Default unless the
Administrative Agent has received a written notice from a Lender or the
Borrower specifying such Default and stating that such notice is a “Notice of
Default”.  In the event that the
Administrative Agent receives such a notice of the occurrence of a Default, the
Administrative Agent shall give prompt notice thereof to the Lenders.  The Administrative Agent shall (subject to Section 10.1)
take such action with respect to such Default as shall be directed by the
Required Lenders; provided that unless and until the Administrative
Agent shall have received such directions, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default as it shall deem advisable in the best
interest of the Secured Parties except to the extent that this Agreement
expressly requires that such action be taken, or not be taken, only with the
consent or upon the authorization of the Required Lenders or all Lenders.


 


SECTION 9.10.  Syndication Agent,
Co-Documentation Agents. 
Neither the Syndication Agent nor the Co-Documentation Agents shall have
any right, power, obligation, liability, responsibility or duty under this
Agreement (or any other Loan Document) other than those applicable to all
Lenders as such.  Without limiting the
foregoing, neither the Syndication Agent nor the Co-Documentation Agents shall
have or be deemed to have any fiduciary relationship with any other
Lender.  Each Lender acknowledges that it
has not relied, and will not rely, on the Syndication Agent or the
Co-Documentation Agents in deciding to enter into this Agreement and each other
Loan Document to which it is a party or in taking or not taking action
hereunder or thereunder.


 


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ARTICLE X

MISCELLANEOUS PROVISIONS


 


SECTION 10.1.  Waivers, Amendments,
etc.  The provisions of each
Loan Document (other than Rate Protection Agreements, Letters of Credit and
each Fee Letter (which documents may be amended or otherwise modified in
accordance with the terms thereof) may from time to time be amended, modified
or waived, if such amendment, modification or waiver is in writing and
consented to by the Borrower and the Required Lenders; provided, however,
that (i) any such amendment, modification or waiver required to give
effect to any Incremental Term Loan Commitment shall not require the consent of
any Lender other than, and shall require the consent of, any Lender that has
agreed to provide any such Incremental Term Loan Commitment and (ii) no
other such amendment, modification or waiver shall:


 


(a)                                  modify
this Section or change or waive any provision of Section 4.8
requiring pro rata treatment of the Lenders, or the sharing of payments by all
Lenders, in each case without the consent of all Lenders;


 


(b)                                 increase
the aggregate amount of any Credit Extensions required to be made by a Lender
pursuant to its Commitments, extend the final Commitment Termination Date of
Credit Extensions made (or participated in) by a Lender or extend the final
Stated Maturity Date for any Lender’s Loan, in each case without the consent of
such Lender (it being agreed, however, that any vote to rescind any
acceleration made pursuant to Sections 8.2 and 8.3 of amounts owing with
respect to the Loans and other Obligations shall only require the vote of the
Required Lenders);


 


(c)                                  reduce
the principal amount of or rate of interest on any Lender’s Loan, reduce any
fees described in Article III payable to any Lender or extend the
date on which interest or fees are payable in respect of such Lender’s Loans,
in each case without the consent of such Lender;


 


(d)                                 reduce the percentage set forth in the definition of “Required
Lenders” or modify any requirement hereunder that any particular action be
taken by all Lenders without the consent of all Lenders;


 


(e)                                  increase the Stated Amount of any Letter of Credit unless
consented to by the Issuer of such Letter of Credit;


 


(f)                                    except as otherwise expressly provided in a Loan Document,
release (i) the Borrower from its Obligations under the Loan Documents or
any Guarantor from its obligations under a Guaranty or (ii) all or
substantially all of the collateral under the Loan Documents, in each case
without the consent of all Lenders;


 


(g)                                 (i) amend,
modify or waive clause (b) of Section 3.1.1 or (ii) have
the effect (either immediately or at some later time) of enabling the Borrower
to satisfy a condition precedent to the making of a Revolving Loan or the
issuance of a Letter of Credit unless such amendment, modification or waiver
shall have been consented to by


 


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the
Lenders holding a majority of the aggregate amount of the then outstanding
Revolving Loan Commitments; or


 


(h)                                 affect adversely the interests, rights or obligations of the
Administrative Agent (in its capacity as the Administrative Agent) or any
Issuer (in its capacity as Issuer), unless consented to by the Administrative
Agent or such Issuer, as the case may be.


 


No failure or delay on the part of any Credit Party in
exercising any power or right under any Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power or right
preclude any other or further exercise thereof or the exercise of any other
power or right.  No notice to or demand
on any Obligor in any case shall entitle it to any notice or demand in similar
or other circumstances.  No waiver or
approval by any Credit Party under any Loan Document shall, except as may be
otherwise stated in such waiver or approval, be applicable to subsequent
transactions.  No waiver or approval
hereunder shall require any similar or dissimilar waiver or approval thereafter
to be granted hereunder.


 


SECTION 10.2.  Notices; Time.  All notices and other communications provided
under each Loan Document shall be in writing (including by facsimile) and
addressed, delivered or transmitted, if to the Borrower, the Administrative
Agent, a Lender or Issuer to the applicable Person at its address or facsimile
number set forth on Schedule II hereto or set forth in a Lender
Assignment Agreement, or at such other address or facsimile number as may be
designated by such party in a notice to the other parties.  Any notice, if mailed and properly addressed
with postage prepaid or if properly addressed and sent by pre-paid courier
service, shall be deemed given when received; any notice, if transmitted by
facsimile, shall be deemed given when the confirmation of transmission thereof
is received by the transmitter.  Electronic mail and Internet and intranet
websites may be used only to distribute routine communications, such as
financial statements and other information as provided in Section 7.1.1, and to distribute Loan Documents for execution by the parties
thereto, and may not be used for any other purpose, except with the consent of
the Administrative Agent. The parties hereto agree that delivery of an
executed counterpart of a signature page to this Agreement and each other
Loan Document by facsimile shall be effective as delivery of an original
executed counterpart of this Agreement or such other Loan Document.  Unless otherwise indicated, all references to
the time of a day in a Loan Document shall refer to New York time.


 


SECTION 10.3.  Payment of Costs and
Expenses.  The Borrower agrees
to pay on demand all reasonable expenses of the Lead Arrangers (including the
reasonable fees and out-of-pocket expenses of Mayer, Brown, Rowe & Maw
LLP, counsel to the Lead Arrangers and of local
counsel, if any, who may be retained by or on behalf of the Lead Arrangers) in
connection with


 


(a)                                  the
negotiation, preparation, execution and delivery of each Loan Document,
including schedules and exhibits, and any amendments, waivers, consents,
supplements or other modifications to any Loan Document as may from time to
time hereafter be required, whether or not the transactions contemplated hereby
are consummated; and


 


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(b)                                 the
filing or recording of any Loan Document (including the Filing Statements) and
all amendments, supplements, amendment and restatements and other modifications
to any thereof, searches made following the Amendment Effective Date in
jurisdictions where Filing Statements (or other documents evidencing Liens in
favor of the Secured Parties) have been recorded and any and all other
documents or instruments of further assurance required to be filed or recorded
by the terms of any Loan Document; and


 


(c)                                  the preparation and review of the form of any document or
instrument relevant to any Loan Document.


 


The Borrower further agrees to pay, and to save each
Credit Party harmless from all liability for, any stamp or other taxes which
may be payable in connection with the execution or delivery of each Loan
Document, the Credit Extensions or the issuance of any Notes.  The Borrower also agrees to reimburse the
Lead Arrangers upon demand for all reasonable out-of-pocket expenses (including
reasonable attorneys’ fees and legal expenses of one counsel (and any local
counsel) to the Lead Arrangers) incurred by the Lead Arrangers in connection
with (x) the negotiation of any restructuring or “work-out” with the
Borrower, whether or not consummated, of any Obligations and (y) the
enforcement of any Obligations.


 


SECTION 10.4.  Indemnification.  In consideration of the execution and
delivery of this Agreement by each Credit Party, the Borrower shall indemnify,
exonerate, defend and hold each Credit Party and each of their respective
officers, directors, employees and agents and in the case of an Approved Fund,
its trustees and investment advisors (collectively, the “Indemnified Parties”)
free and harmless from and against any and all actions, causes of action,
suits, losses, costs, liabilities and damages (whether or not based on strict
liability and including any special, indirect or consequential damages), and
expenses of any kind or nature whatsoever (irrespective of whether any such
Indemnified Party is a party to the action for which indemnification hereunder
is sought), including reasonable attorneys’ and consultants’ fees and
disbursements, whether incurred in connection with actions between or among the
parties hereto or the parties hereto and third parties (regardless of whether
caused in whole or in part by the simple (but not gross) negligence of any
indemnified party) (collectively, the “Indemnified Liabilities”),
incurred by the Indemnified Parties or any of them as a result of, or arising
out of, or relating to


 


(a)                                  any
transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of any Credit Extension, including all
Indemnified Liabilities arising in connection with the Transaction;


 


(b)                                 the
entering into and performance of any Loan Document by any of the Indemnified
Parties (including any action brought by or on behalf of the Borrower as the
result of any determination by the Required Lenders pursuant to Article V
not to fund any Credit Extension, provided that any such action is
resolved in favor of such Indemnified Party);


 


(c)                                  any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by any Obligor or any Subsidiary thereof of
all or any portion of the


 


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Capital Securities or assets of any Person, whether or
not an Indemnified Party is party thereto;


 


(d)                                 any environmental matter relating to any Obligor or any
Subsidiary thereof;


 


(e)                                  the
actual or alleged presence, escape, seepage, leakage, spillage, discharge,
emission, discharging or release at, on, under, from or affecting any real
property owned or operated by any Obligor or any Subsidiary thereof of any
Hazardous Material (including any losses, liabilities, damages, injuries or
claims and reasonable costs or expenses asserted or arising under any
Environmental Law), regardless of whether caused by, or within the control of,
such Obligor or Subsidiary; or


 


(f)                                    each
Lender’s Environmental Liability (the indemnification herein shall survive
repayment of the Obligations and any transfer of the property of any Obligor or
its Subsidiaries by foreclosure or by a deed in lieu of foreclosure for any
Lender’s Environmental Liability, regardless of whether caused by, or within
the control of, such Obligor or such Subsidiary);


 


except
for Indemnified Liabilities arising for the account of a particular Indemnified
Party to the extent of the relevant Indemnified Party’s breach of contract,
gross negligence or willful misconduct. 
Each Obligor and its successors and assigns hereby waive, release and
agree not to make any claim or bring any cost recovery action against, any
Indemnified Party under any Environmental Law, including CERCLA or any state
equivalent, or any similar law now existing or hereafter enacted.  It is expressly understood and agreed that to
the extent that any Indemnified Party is strictly liable under any
Environmental Laws, each Obligor’s obligation to such Indemnified Party under
this indemnity shall likewise be without regard to fault on the part of any
Obligor with respect to the violation or condition which results in liability
of an Indemnified Party; provided that this waiver and release shall not
apply to the extent that the Indemnified Liabilities arise for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party’s
breach of contract, gross negligence or willful misconduct.  If and to the extent that the foregoing
undertaking may be unenforceable for any reason, each Obligor agrees to make
the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law.


 


SECTION 10.5.  Survival.  The obligations of the Borrower under Sections
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and
the obligations of the Lenders under Sections 9.1 and 10.16,
shall in each case survive any assignment from one Lender to another (in the
case of Sections 10.3 and 10.4) and the occurrence of the
Termination Date.  The representations
and warranties made by each Obligor in each Loan Document shall survive the
execution and delivery of such Loan Document.


 


SECTION 10.6.  Severability.  Any provision of any Loan Document which is
prohibited or unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the


 


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remaining
provisions of such Loan Document or affecting the validity or enforceability of
such provision in any other jurisdiction.


 


SECTION 10.7.  Headings.  The various headings of each Loan Document
are inserted for convenience only and shall not affect the meaning or
interpretation of such Loan Document or any provisions thereof.


 


SECTION 10.8.  Execution in
Counterparts, Effectiveness, etc. 
This Agreement may be executed by the parties hereto in several
counterparts, each of which shall be an original and all of which shall
constitute together but one and the same agreement.  This Agreement shall become effective when
counterparts hereof executed on behalf of the Borrower, the Administrative
Agent and each Lender (or notice thereof satisfactory to the Administrative
Agent) shall have been received by the Administrative Agent; provided,
however that the provisions of this Agreement shall not become operative until
the satisfaction of the conditions in Section 5.1 shall have
occurred.  In the event that the
conditions set forth in Section 5.1 have not been satisfied or waived
by August 19, 2005, this Agreement shall terminate and no longer be
binding on any of the parties hereto.


 


SECTION 10.9.  Governing Law; Entire
Agreement.  EACH LOAN DOCUMENT
(OTHER THAN THE LETTERS OF CREDIT, TO THE EXTENT SPECIFIED BELOW AND EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH IN A LOAN DOCUMENT) WILL EACH BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK). 
EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO LAWS OR
RULES ARE DESIGNATED, THE INTERNATIONAL STANDBY PRACTICES (ISP98--INTERNATIONAL
CHAMBER OF COMMERCE PUBLICATION NUMBER 590 (THE “ISP RULES”)) AND, AS TO
MATTERS NOT GOVERNED BY THE ISP RULES, THE INTERNAL LAWS OF THE STATE OF NEW
YORK.  THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.  THERE ARE NO
ORAL AGREEMENTS BETWEEN THE PARTIES.  The
Loan Documents constitute the entire understanding among the parties hereto
with respect to the subject matter thereof and supersede any prior agreements,
written or oral, with respect thereto.


 


SECTION 10.10.  Successors and Assigns.  This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns; provided that the Borrower may not assign or transfer its
rights or obligations hereunder without the consent of all Lenders.


 


SECTION 10.11.  Sale and Transfer of
Credit Extensions; Participations in Credit Extensions.  Each Lender may assign, or sell
participations in, its Loans, Letters of Credit and Commitments to one or more
other Persons in accordance with the terms set forth below.


 


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(a)                                  Any
Lender may, with the consent of the Administrative Agent (such consent not to
be unreasonably withheld or delayed), assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Commitments and the Loans at the time owing to it); provided
that:


 


(i)  except in the
case of (A) an assignment of the entire remaining amount of the assigning
Lender’s Commitments and the Loans at the time owing to it or (B) an
assignment to a Lender or an Affiliate of a Lender or an Approved Fund with
respect to a Lender, the aggregate amount of the Commitments (which for this
purpose includes Loans outstanding thereunder) or principal outstanding balance
of the Loans of the assigning Lender subject to each such assignment
(determined as of the date the Lender Assignment Agreement with respect to such
assignment is delivered to the Administrative Agent) shall not be less than
$1,000,000 (or, if less, the entire remaining amount of such Lender’s
Commitment or Loans of the relevant tranche; provided that such minimum
amount shall be aggregated for two or more simultaneous assignments by or to
two or more Related Funds), unless the Administrative Agent and, so long as no
Event of Default has occurred and is continuing, the Borrower otherwise consent
(each such consent not to be unreasonably withheld or delayed);


 


(ii)  each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender’s rights and obligations under this Agreement with respect to
the Loans and/or the Commitments assigned, except that this clause (ii) shall
not prohibit any Lender from assigning all or a portion of its rights and
obligations among separate tranches on a non-pro  rata basis; and


 


(iii)  the parties
to each assignment shall (A) electronically execute and deliver to the
Administrative Agent a Lender Assignment Agreement via an electronic settlement
system acceptable to the Administrative Agent (which initially shall be
ClearPar, LLC) or (B) manually execute and deliver to the Administrative
Agent a Lender Assignment Agreement, together, in the case of this clause
(iii)(B), with a processing and recordation fee of $3,500 and if the
Eligible Assignee is not a Lender, administrative details information with
respect to such Eligible Assignee and applicable tax forms.


 


(b)                                 Subject
to acceptance and recording thereof by the Administrative Agent pursuant to clause
(c), from and after the effective date specified in each Lender Assignment
Agreement, (i) the Eligible Assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Lender Assignment
Agreement, have the rights and obligations of a Lender under this Agreement,
and (ii) the assigning Lender thereunder shall, to the extent of the
interest assigned by such Lender Assignment Agreement, subject to Section 10.5,
be released from its obligations under this Agreement (and, in the case of a
Lender Assignment Agreement covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto,
but shall continue to be entitled to the benefits of any provisions of this
Agreement which by their terms survive the termination of this Agreement).  Any


 


88





















 


assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with clauses (a) and
(b) shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with
clause (d).  If the consent of the
Borrower to an assignment or to an Eligible Assignee is required hereunder
(including a consent to an assignment which does not meet the minimum
assignment thresholds specified in this Section), the Borrower shall be deemed
to have given its consent ten Business Days after the date notice thereof has
been delivered by the assigning Lender (through the Administrative Agent or
ClearPar, LLC) unless such consent is expressly refused by the Borrower prior
to such tenth Business Day.


 


(c)                                  The
Administrative Agent shall record each assignment made in accordance with this Section in
the Register pursuant to clause (a) of Section 2.7.  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)                                 Any
Lender may, without the consent of, or notice to, the Borrower or the
Administrative Agent, sell participations to one or more banks or other
entities (a “Participant”) in all or a portion of such Lender’s rights
and/or obligations under this Agreement (including all or a portion of its
Commitments and/or the Loans owing to it); provided that (i) such
Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this
Agreement.  Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, modification or
waiver with respect to any of the items set forth in clauses (a) through
(d) or (f) of Section 10.1, in each case
except as otherwise specifically provided in a Loan Document.  Subject to clause (e), the Borrower
agrees that each Participant shall be entitled to the benefits of Sections
4.3, 4.4, 4.5, 4.6, 7.1.1, 10.3 and 10.4
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to clause (b). 
To the extent permitted by law, each Participant also shall be entitled
to the benefits of Section 4.9 as though it were a Lender, provided
such Participant agrees to be subject to Section 4.8 as though it
were a Lender.


 


(e)                                  A
Participant shall not be entitled to receive any greater payment under Sections
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4 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 Non-U.S. Credit
Party if it were a Lender shall not be entitled to the benefits of Section 4.6
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
the requirements set forth in Section 4.6 as though it were a
Lender.  In


 


89





















 


addition, if at the time of the sale of such
participation, any greater Taxes subject to payment under Section 4.6
would apply to the Participant than applied to the applicable Lender, then such
Participant shall not be entitled to any payment under Section 4.6
with respect to the portion of such Taxes as exceeds the Taxes applicable to
the Lender at the time of the sale of the participation unless the Participant’s
request for the Borrower’s prior written consent for the Participation
described in the first sentence of this clause states that such greater Taxes
would be applicable to such Participant.


 


(f)                                    Any
Lender may at any time, without the consent of any other Person, pledge or
assign a security interest in all or any portion of its rights under this
Agreement 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 of a security interest shall release a Lender
from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.


 


(g)                                 In
the event that S&P or Moody’s, shall, after the date that any Person becomes
a Revolving Loan Lender, downgrade the long-term certificate of deposit ratings
of such Lender, and the resulting ratings shall be below BBB- or Baa3,
respectively, or the equivalent, then the Borrower, the Swing Line Lender and
each Issuer shall each have the right, but not the obligation, upon notice to
such Revolving Loan Lender and the Administrative Agent, to replace such
Revolving Loan Lender with a financial institution (a “Replacement Lender”)
acceptable to the Borrower and the Administrative Agent (such consents not to
be unreasonably withheld or delayed; provided that no such consent shall
be required if the Replacement Lender is an existing Revolving Loan Lender),
and upon any such downgrading of any Revolving Loan Lender’s long-term
certificate of deposit rating, each such Revolving Loan Lender hereby agrees to
transfer and assign (in accordance with this Section all of its
Commitments and other rights and obligations under the Loan Documents
(including Reimbursement Obligations) to such Replacement Lender; provided
that (i) such assignment shall be without recourse, representation or
warranty (other than that such Lender owns the Commitments, Loans and Notes
being assigned, free and clear of any Liens) and (ii) the purchase price
paid by the Replacement Lender shall be in the amount of such Revolving Loan
Lender’s Loans and its Percentage of outstanding Reimbursement Obligations,
together with all accrued and unpaid interest and fees in respect thereof, plus
all other amounts (other than the amounts (if any) demanded and unreimbursed
under Sections 4.2 through (and including) 4.6, which shall be
paid by the Borrower), owing to such Revolving Loan Lender hereunder.  Upon any such termination or assignment, such
Revolving Loan Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of, and subject to the obligations of, any provisions
of this Agreement which by their terms survive the termination of this
Agreement.


 


(h)                                 Notwithstanding
anything else contained in this Section, no Lender may assign its Loans or
Commitments during the Primary Syndication other than (i) assignments by
the Administrative Agent, the Syndication Agent, the Lead Arrangers and their
respective Affiliates or (ii) assignments by a Lender to its Affiliate or
Approved Fund.


 


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(i)                                     Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”)
may grant to a special purpose funding vehicle (a “SPC”), identified as
such in writing from time to time by the Granting Lender to the Administrative
Agent and the Borrower, the option to provide to the Borrower all or any part
of any Loan that such Granting Lender would otherwise be obligated to make to
the Borrower pursuant to this Agreement; provided that (i) nothing
herein shall constitute a commitment by any SPC to make any Loan and (ii) if
an SPC elects not to exercise such option or otherwise fails to provide all or
any part of such Loan, the Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof.  The making
of an Loan by an SPC hereunder shall utilize the Commitment of the Granting
Lender to the same extent, and as if, such Loan were made by such Granting Lender.  Each party hereto hereby agrees that no SPC
shall be liable for any indemnity or similar payment obligation under this
Agreement (all liability for which shall remain with the Granting Lender).  In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior
indebtedness of any SPC, it will not institute against, or join any other
person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the United
States or any State thereof.  In
addition, notwithstanding anything to the contrary contained in this clause,
any SPC may (i) with notice to, but without the prior written consent of,
the Borrower, the Administrative Agent or the Syndication Agent and without
paying any processing fee therefor, assign all or a portion of its interests in
any Loans to the Granting Lender or to any financial institutions (consented to
by the Borrower, the Syndication Agent and the Administrative Agent) providing
liquidity and/or credit support to or for the account of such SPC to support
the funding or maintenance of Loans and (ii) disclose on a confidential
basis any non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of any surety, guarantee or credit or
liquidity enhancement to such SPC. This section may not be amended without
the written consent of the SPC.  The
Borrower acknowledges and agrees, subject to the next sentence,
that, to the fullest extent permitted under applicable law, each SPC,
for purposes of Sections 4.3, 4.4, 4.5, 4.6, 4.8,
4.9, 10.3 and 10.4, shall be considered a Lender.  The Borrower shall not be required to pay any
amount under Sections 4.3, 4.4, 4.5, 4.6, 10.3
and 10.4 that is greater than the amount which it would have been
required to pay had no grant been made by a Granting Lender to a SPC.


 


SECTION 10.12.  Other Transactions.  Nothing contained herein shall preclude the
Administrative Agent, any Issuer or any other Lender from engaging in any
transaction, in addition to those contemplated by the Loan Documents, with the
Borrower or any of its Affiliates in which the Borrower or such Affiliate is
not restricted hereby from engaging with any other Person.


 


SECTION 10.13.  Forum Selection and Consent to
Jurisdiction.  ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, ANY LOAN DOCUMENT, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN)
OR ACTIONS OF THE


 


91





















 


ADMINISTRATIVE
AGENT, THE LENDERS, ANY ISSUER OR THE BORROWER IN CONNECTION HEREWITH OR
THEREWITH MAY BE BROUGHT AND MAINTAINED IN THE COURTS OF THE STATE OF
NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF NEW YORK; PROVIDED THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY
COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENT’S
OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER
PROPERTY MAY BE FOUND.  THE BORROWER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK AT
THE ADDRESS FOR NOTICES SPECIFIED IN SECTION 10.2.  THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE
OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.  TO THE EXTENT THAT THE BORROWER HAS OR
HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM
ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO
JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF
OR ITS PROPERTY, THE BORROWER HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT
PERMITTED BY LAW SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THE LOAN
DOCUMENTS.


 


SECTION 10.14.  Waiver of Jury Trial.  THE ADMINISTRATIVE AGENT, EACH LENDER, EACH
ISSUER AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS THEY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR
IN CONNECTION WITH, EACH LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE
AGENT, SUCH LENDER, SUCH ISSUER OR THE BORROWER IN CONNECTION THEREWITH.  THE BORROWER ACKNOWLEDGES AND AGREES THAT IT
HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH
OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT, EACH
LENDER AND EACH ISSUER ENTERING INTO THE LOAN DOCUMENTS.


 


SECTION 10.15.  Limitation on Interest.  The Borrower, the Administrative Agent and
the Lenders intend to contract in strict compliance with applicable usury laws
from time to time in effect.  In
furtherance thereof such Persons stipulate and agree that none of the terms and
provisions contained in the Loan Documents shall ever be construed to create a
contract to pay, for the use, forbearance or detention of money, interest in
excess of the maximum amount of interest permitted to be charged by applicable
law from time to time in effect.  Neither
the Borrower nor any present or future Guarantors, endorsers or other Persons
hereafter becoming


 


92





















 


liable for payment
of any Obligation shall ever be liable for unearned interest thereon or shall
ever be required to pay interest thereon in excess of the maximum amount that
may be lawfully contracted for, charged or received under applicable law from
time to time in effect, and the provisions of this section shall control
over all other provisions of the Loan Documents that may be in conflict or
apparent conflict herewith.  The
Administrative Agent and the Lenders expressly disavow any intention to
contract for, charge or collect excessive unearned interest or finance charges
in the event the maturity of any Obligation is accelerated.  If (a) the maturity of any Obligation is
accelerated for any reason, (b) any Obligation is prepaid and as a result
any amounts held to constitute interest are determined to be in excess of the
legal maximum, or (c) the Administrative Agent or a Lender shall otherwise
collect moneys that are determined to constitute interest that would otherwise
increase the interest on any or all of the Obligations to an amount in excess
of that permitted to be charged by applicable law then in effect, then all sums
determined to constitute interest in excess of such legal limit shall, without
penalty, be promptly applied to reduce the then outstanding principal of the
related Obligations or, at the option of the Administrative Agent or such
Lender, as applicable, promptly returned to the Borrower upon such
determination.  In determining whether or
not the interest paid or payable, under any specific circumstance, exceeds the
maximum amount permitted under applicable law, the Administrative Agent and the
Lenders and the Borrower shall to the greatest extent permitted under
applicable law, (i) characterize any non-principal payment as an expense,
fee or premium rather than as interest, (ii) exclude voluntary prepayments
and the effects thereof, and (iii) amortize, prorate, allocate and spread
the total amount of interest throughout the entire contemplated term of
instruments evidencing the Obligations in accordance with the amounts
outstanding from time to time thereunder and the maximum legal rate of interest
from time to time in effect under applicable law in order to lawfully contract
for, charge, or receive the maximum amount of interest permitted under
applicable law.  In the event applicable
law provides for an interest ceiling under Chapter 303 of the Texas Finance
Code (the “Texas Finance Code”), as amended, for that day, the ceiling
shall be the “weekly ceiling” as defined in the Texas Finance Code, provided
that if any applicable law permits greater interest, the law permitting the
greatest interest shall apply.  As used
in this section the term “applicable law” means the laws of the State of
Texas or the laws of the United States, whichever allow the greater interest,
as such laws now exist or may be changed or amended or come into effect in the
future.


 


SECTION 10.16.  Confidentiality.  The Lenders and the Administrative Agent
shall hold all non-public information obtained pursuant to or in connection
with this Agreement about Parent or any of its Subsidiaries in accordance with
their customary procedures for handling confidential information of this
nature, but may make disclosure to any of their examiners, Affiliates, their
and their Affiliate’s directors, officers, employees, agents, trustees and
representatives, outside auditors, counsel and other professional advisors or
to any direct or indirect contractual counterparty in swap agreements or such
contractual counterparty’s professional advisor (so long as such contractual
counterparty or professional advisor to such contractual counterparty agrees to
be bound by the provisions of this Section) in connection with this Agreement
or as reasonably required by any potential bona  fide pledgee
under clause (f) of Section 10.11, transferee,
participant or assignee, or in connection with the exercise of remedies under a
Loan Document, or as requested by any governmental agency or representative
thereof


 


93





















 


or
pursuant to legal process or to any quasi-regulatory authority (including the
National Association of Insurance Commissioners); provided that


 


(a)                                  unless
specifically prohibited by applicable law or court order, each Lender and the
Administrative Agent shall notify the Borrower of any request by any
governmental agency or representative thereof (other than any such request in
connection with an examination of the financial condition of such Lender or its
Affiliate by such governmental agency) for disclosure of any such non-public
information prior to or within a reasonable time after disclosure of such
information;


 


(b)                                 prior
to any such disclosure pursuant to this Section, each Lender shall require any
such bona  fide pledgee under clause (f) of Section 10.11,
transferee, participant and assignee receiving a disclosure of non-public
information to agree in writing (i)  to be bound
by this Section; and (ii)  to require such Person to require any other
Person to whom such Person discloses such non-public information to be
similarly bound by this Section; and


 


(c)                                  except
as may be required by an order of a court of competent jurisdiction and to the
extent set forth therein, no Lender shall be obligated or required to return
any materials furnished by Parent, the Borrower or any Subsidiary.


 


Notwithstanding the foregoing paragraphs of this
Section, any party to this Agreement (and each Affiliate, director, officer,
employee, agent or representative of the foregoing or such Affiliate) may
disclose to any and all persons, without limitation of any kind, the tax
treatment and tax structure of the transactions contemplated herein and all
materials of any kind (including opinions or other tax analyses) that are
provided to such party relating to such tax treatment or tax structure.  The
foregoing language is not intended to waive any confidentiality obligations
otherwise applicable under this Agreement except with respect to the
information and materials specifically referenced in the preceding sentence.  This authorization does not extend to
disclosure of any other information, including (a) the identity of
participants or potential participants in the transactions contemplated herein,
(b) the existence or status of any negotiations, or (c) any
financial, business, legal or personal information of or regarding a party or
its affiliates, or of or regarding any participants or potential participants
in the transactions contemplated herein (or any of their respective
affiliates), in each case to the extent such other information is not related
to the tax treatment or tax structure of the transactions contemplated herein.


 


SECTION 10.17.  USA PATRIOT Act Notice.  Each Lender and the Administrative 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 “Patriot Act”), it is required
to obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Lender or the Administrative Agent, as applicable, to
identify the Borrower in accordance with the Patriot Act.


 


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SECTION 10.18.  Effect of Amendment and
Restatement of the Existing Credit Agreement.  On the Amendment Effective Date, the Existing
Credit Agreement shall be amended and restated in its entirety.  The parties hereto acknowledge and agree that
(a) this Agreement and the other Loan Documents, whether executed and
delivered in connection herewith or otherwise, do not constitute a novation or
termination of the “Obligations” (as defined in the Existing Credit Agreement)
under the Existing Credit Agreement as in effect prior to the Amendment
Effective Date and which remain outstanding, (b) the “Obligations” are in
all respects continuing (as amended and restated hereby and which are
hereinafter subject to the terms herein) and (c) the Liens and security
interests as granted under the applicable Loan Documents securing payment of
such “Obligations” are in all respects continuing and in full force and effect
(as assigned to the Administrative Agent for the benefit of the Secured Parties
pursuant to this Agreement and the other Loan Documents).


 


95





















 


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


 


	
   

  	
  REDDY ICE
  GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven J. Janusek

  	
   

  



 





















 


	
   

  	
  CREDIT
  SUISSE, Cayman Islands Branch, formerly known as Credit Suisse First Boston,
  Acting Through Its Cayman Islands Branch, as Administrative Agent, Co-Lead
  Arranger and Bookrunner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Judith E. Smith

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Denise L. Alvarez

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CREDIT SUISSE, Cayman Islands Branch, formerly known as Credit Suisse
  First Boston, Acting Through Its Cayman Islands Branch, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Judith E. Smith

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Denise L. Alvarez

  	
   

  



 


S-2





















 


	
   

  	
  CANADIAN
  IMPERIAL BANK OF COMMERCE, as a Co-Lead Arranger, Syndication Agent and Sole
  Bookrunner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Gerald Girardi

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CIBC INC.,
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Gerald Girardi

  	
   

  
					



 


S-3





















 


	
   

  	
  BEAR,
  STEARNS & CO. INC.,

  
	
   

  	
  as a Co-Lead
  Arranger and Co-Bookrunner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Keith C. Barnish

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BEAR STEARNS
  CORPORATE LENDING INC.,

  
	
   

  	
  as a
  Co-Documentation Agent and a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Keith C. Barnish

  	
   

  



 


S-4





















 


	
   

  	
  LEHMAN
  BROTHERS INC.,

  
	
   

  	
  as a Co-Lead
  Arranger and Co-Bookrunner

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ V. Paul Arzoulan

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LEHMAN
  COMMERCIAL PAPER INC.,

  
	
   

  	
  as a
  Co-Documentation Agent and a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ V. Paul Arzoulan

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  LENDERS:

  	
   

  



 


S-5





















 


	
   

  	
  WACHOVIA
  BANK, NATIONAL

  ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  Jennifer Norris

  	
   

  



 


S-6





















 


	
   

  	
  JP MORGAN
  CHASE BANK N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Carl F. Shafer