Exhibit 10.6


 


EXECUTION COPY


 


AMENDMENT AND RESTATEMENT AGREEMENT dated as of December 21,
2004, among INTERLINE BRANDS, INC., a Delaware corporation (“Holdings”),
INTERLINE BRANDS, INC., a New Jersey corporation (the “Borrower”), the
SUBSIDIARY LOAN PARTIES party hereto, the LENDERS party hereto, CREDIT SUISSE
FIRST BOSTON, a bank organized under the laws of Switzerland and acting through
its Cayman Islands branch, as Administrative Agent, and JPMORGAN CHASE BANK,
N.A. (f/k/a JPMorgan Chase Bank), a national banking association, as
Syndication Agent under the Credit Agreement dated as of May 29, 2003, as
amended by Amendment No. 1 thereto dated as of December 19, 2003,
among the Borrower, the Subsidiary Loan Parties party thereto from time to
time, the Lenders party thereto from time to time (the “Existing Lenders”)
and the Agents party thereto, as in effect on the date hereof (the “Existing
Credit Agreement”).


 


WHEREAS (a) Holdings
intends to consummate an initial public offering of its common stock generating
gross proceeds of not less than $187,500,000 (the “Initial Public Offering”),
(b) in connection with the Initial Public Offering, the Borrower will
merge (the “Merger”) with Interline Subsidiary, Inc., a wholly
owned subsidiary of Holdings, with the Borrower as the surviving entity in the
Merger, (c) in the Merger, all the outstanding common stock of the
Borrower will be converted into common stock of Holdings and all the
outstanding Existing Preferred Stock will be converted into the right to
receive an aggregate amount of $55,000,000 in cash and 19,187,500 shares of
common stock of Holdings and (d) the Net Proceeds from the Initial Public
Offering will be used by Holdings and the Borrower to (i) redeem 35% of
the outstanding aggregate principal amount of Senior Subordinated Notes of the
Borrower for an aggregate redemption price (including prepayment premiums and
accrued interest) of approximately $78,100,000, (ii) prepay $31,250,000
aggregate principal amount of Term Loans under the Existing Credit Agreement, (iv) pay
aggregate cash consideration in the Merger of $55,000,000 to the holders of the
Existing Preferred Stock, (iii) pay approximately $5,000,000 in costs in
connection with the termination of certain Swap Agreements of the Borrower and (iv) pay
fees and expenses in connection with the foregoing of approximately
$16,800,000; and


 


WHEREAS Holdings, the
Borrower, the Subsidiary Loan Parties party hereto, the Required Restatement
Lenders (as defined below) and the Administrative Agent have agreed, upon the
terms and subject to the conditions set forth herein, that (a) the
Existing Credit Agreement be amended and restated in its entirety as set forth
in Exhibit A hereto (as so amended and restated, the “Restated Credit
Agreement”), (b) the Revolving Commitments under the Restated Credit Agreement
shall be $100,000,000,


 





















 


with the Revolving
Lenders set forth on Schedule I hereto (the “Restatement Revolving
Lenders”) having the Revolving Commitments identified on such Schedule and
(c) Holdings become a party to the Restated Credit Agreement.


 


NOW, THEREFORE, Holdings,
the Borrower, the Subsidiary Loan Parties party hereto, the Required
Restatement Lenders and the Administrative Agent hereby agree as follows:


 


SECTION 1.  Defined Terms.  Capitalized terms used but not defined herein
shall, unless the context requires otherwise, have the meanings assigned to
such terms in the Restated Credit Agreement or, if not defined therein, in the
Existing Credit Agreement.  As used in
this Agreement:


 


“Decreasing Term
Lenders” shall mean all Term Loan Lenders with outstanding Term Loans under
the Existing Credit Agreement that (A) consent to the amendment and
restatement of the Existing Credit Agreement pursuant to this Agreement and
have the aggregate principal amount of their outstanding Term Loans reduced
pursuant to assignments of a portion of their outstanding Term Loans to one or
more Increasing Term Lenders pursuant to Section 5 of this Agreement, as
specified on Schedule 2 hereto, or (B) are Departing Lenders.


 


“Departing Lenders”
shall mean all Term Loan Lenders with outstanding Term Loans under the Existing
Credit Agreement that do not consent to the amendment and restatement of the
Existing Credit Agreement pursuant to this Agreement.


 


“Increasing Term Lenders”
shall mean the lenders, which may include Existing Lenders, identified on Schedule 2
hereto as “Increasing Term Lenders”.


 


“Required Restatement
Lenders” means, at any time, (i) each of the Lenders (as defined in
the Existing Credit Agreement) required by Section 9.02 of the Existing
Credit Agreement to approve the Restated Credit Agreement and (ii) each of
the other Restatement Revolving Lenders.


 


SECTION 2.  Restatement Effective Date.  (a)  The transactions provided for
in Sections 3, 4 and 5 hereof shall be consummated at a closing to be held on
the Restatement Effective Date at the offices of Cravath, Swaine &
Moore LLP, or at such other time and place as the Borrower and the
Administrative Agent shall agree upon.


 


(b)                                 The
“Restatement Effective Date” shall be specified by the Borrower, and
shall be a date not later than December 21, 2004, as of which date all the
conditions set forth or referred to in Section 6 hereof shall have been
satisfied.


 


SECTION 3.  Amendment and Restatement of the Existing Credit
Agreement; Loans and Letters of Credit. 
(a)  The Existing Credit Agreement is hereby amended and
restated to read in its entirety as set forth in Exhibit A hereto, and the
Administrative Agent is hereby directed by the Required Restatement Lenders to
enter into such Loan Documents and to take such other actions as may be
required to give


 


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effect to the
transactions contemplated hereby.  Holdings
by its signature below becomes a party to the Restated Credit Agreement and
agrees to all the terms and provisions of the Restated Credit Agreement
applicable to it as set forth therein.  From
and after the Restatement Effective Date, the terms “Agreement”, “this
Agreement”, “herein”, “hereinafter”, “hereto”, “hereof” and words of similar
import, as used in the Restated Credit Agreement, shall, unless the context
otherwise requires, refer to the Existing Credit Agreement as amended and
restated in the form of the Restated Credit Agreement, and the term “Credit
Agreement”, as used in the other Loan Documents, shall mean the Restated Credit
Agreement.


 


(b)                                 Holdings
and the Borrower hereby agree, immediately following the consummation of the
Initial Public Offering, (i) to repay not less than $31,250,000 in principal
amount of Term Loans under the Existing Credit Agreement on the Restatement
Effective Date (the “Repaid Term Loans”) and (ii) to repay the
entire aggregate principal amount of Revolving Loans and Swingline Loans (if
any) outstanding under the Existing Credit Agreement on the Restatement
Effective Date (the “Repaid Revolving/Swingline Loans” and, together
with the Repaid Term Loans, the “Repaid Loans”), in each case together
with all accrued interest and other amounts owing in respect of the Repaid Loans
as of the Restatement Effective Date (including any amounts payable pursuant to
Section 2.16 of the Existing Credit Agreement).  The repayment of the Repaid Loans pursuant to
this clause (b) shall be effected pursuant to Section 2.11(a) of
the Existing Credit Agreement.  The
Required Restatement Lenders hereby waive the requirements of Section 2.11(f) of
the Existing Credit Agreement to the extent, but only to the extent, such Section requires
more than one Business Day’s notice of repayment to be given in connection with
the prepayment of the Repaid Term Loans on the Restatement Effective Date.  The aggregate principal amount of all Letters
of Credit outstanding under the Existing Credit Agreement on the Restatement
Effective Date shall continue to be outstanding under the Restated Credit
Agreement and the terms of the Restated Credit Agreement will govern the rights
of the Lenders and the Issuing Bank with respect thereto after the Restatement
Effective Date.


 


SECTION 4.  Fees and Expenses.  On the Restatement Effective Date, the
Borrower shall pay by wire transfer of immediately available funds not later
than 12:00 Noon (New York City time) to the Administrative Agent (a) for
the account of each Decreasing Term Lender other than a Departing Lender, all amounts
payable to such Decreasing Term Lender under Section 2.16 of the Existing
Credit Agreement (treating such Decreasing Term Lender’s assignment of Assigned
Interests (as defined below) hereunder as a prepayment of the Term Loans
included therein) and (b) for the account of each Departing Lender, all
amounts (other than principal of and accrued interest in respect of such
Departing Lender’s outstanding Term Loans) owed to such Departing Lender under
the Loan Documents, including all amounts payable to such Departing Lender
under Section 2.16 of the Existing Credit Agreement (treating such
Departing Lender’s assignment of Assigned Interests hereunder as a prepayment
of the Term Loans included therein).


 


SECTION 5.  Assignments.  (a)  On the Restatement Effective
Date, immediately after giving effect to the prepayment of the Repaid Term
Loans under


 


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Section 3(c) hereof and subject to the terms and conditions
set forth herein, each of the Decreasing Term Lenders shall be deemed to have
sold and assigned to the Increasing Term Lenders, and each of the Increasing
Term Lenders shall be deemed to have purchased and assumed from the Decreasing
Term Lenders, at the principal amount thereof plus all unpaid interest accrued
to but excluding the Restatement Effective Date in respect thereof, such
interests, rights and obligations with respect to the Term Loans of the
Decreasing Term Lenders outstanding on the Restatement Effective Date,
including those interests, rights and obligations referenced in the second
paragraph of Exhibit A to the Existing Credit Agreement (all such
interests, rights and obligations to be referred to herein as the “Assigned
Interests”), as shall be necessary in order that, after giving effect to
all such sales and assignments and purchases and assumptions, (i) the
Decreasing Term Lenders will hold the principal amount of Term Loans set forth
under the heading “Decreasing Term Lenders” in the second column on Schedule 2
hereto, (ii) the Increasing Term Lenders will hold the principal amount of
Term Loans set forth under the heading “Increasing Term Lenders” in the second
column on Schedule 2 hereto and (iii) the Term Loan Lenders that are
neither Decreasing Term Lenders nor Increasing Term Lenders (the “Unchanged
Term Lenders”) will hold the principal amount of Term Loans set forth under
the heading “Unchanged Term Lenders” in the second column on Schedule 2
hereto.  Such sales and assignments and
purchases and assumptions shall be made on the terms set forth in Exhibit A
to the Existing Credit Agreement, including the terms incorporated by reference
into such Exhibit from Annex I thereto, and shall be deemed to comply with
Section 9.04(b) of the Existing Credit Agreement, notwithstanding the
failure of such sales, assignments, purchases and assumptions to comply with
the minimum assignment requirement in Section 9.04(b)(ii)(A) of the
Existing Credit Agreement, the requirement to pay the processing and
recordation fees referenced in Section 9.04(b)(ii)(C) of the Existing
Credit Agreement or the requirement to execute and deliver Assignment and
Assumption Agreements in respect thereof. 
Without limiting the generality of the foregoing, each Increasing Term
Lender and Decreasing Term Lender hereby makes the representations and
warranties required to be made under such Annex I by an Assignor and Assignee,
respectively, with respect to the Assigned Interests being assigned or assumed
by such Lender hereunder.


 


(b)                                 On
the Restatement Effective Date, subject to the terms and conditions set forth
herein, (i) each Increasing Term Lender purchasing and assuming the
Assigned Interests pursuant to paragraph (a) above shall pay the purchase
price for the Assigned Interests purchased by it pursuant to such paragraph (a) by
wire transfer of immediately available funds to the Administrative Agent not
later than 12:00 Noon (New York City time) and (ii) the Administrative
Agent shall pay to each Decreasing Term Lender selling and assigning the
Assigned Interests pursuant to paragraph (a) above, out of the amounts
received by the Administrative Agent pursuant to clause (i) of this
paragraph (b) and pursuant to Section 4 hereof, the purchase price
for the Assigned Interests assigned by such Decreasing Term Lender pursuant to
such paragraph (a) and the other amounts payable to such Decreasing Term
Lender under Section 4 hereof by wire transfer of immediately available
funds to the account designated by such Decreasing Term Lender to the
Administrative Agent not later than 5:00 p.m. (New York City time).


 


4





















 


(c)                                  Each
of the parties hereto hereby consents to the sales, assignments, purchases and
assumptions provided for in paragraphs (a) and (b) above, and agrees
that each Increasing Term Lender shall be a party to the Restated Credit
Agreement and, to the extent of the interests purchased by such Increasing Term
Lender pursuant to such paragraphs or held by such Increasing Term Lender prior
to the Restatement Effective Date, shall have the rights and obligations of a
Term Lender under the Amended and Restated Credit Agreement.


 


(d)                                 If
the Restatement Effective Date shall not occur on the date specified therefor
pursuant hereto, the provisions of Section 2.16(c) of the Existing
Credit Agreement shall be applicable (treating the nonoccurrence of the sales
and assignments and purchases and assumptions contemplated by paragraphs (a) and
(b) of this Section for purposes of such Section 2.16 as the
failure by the Borrower to (i) repay Term Loans of the Decreasing Term
Lenders and (ii) borrow from the Increasing Term Lenders the Term Loans to
be purchased by the Increasing Lenders, in each case, as contemplated by
paragraph (a) of this Section).


 


SECTION 6. 
Conditions.  The
consummation of the transactions set forth in Sections 3, 4 and 5 of this
Agreement shall be subject to the satisfaction of the following conditions
precedent:


 


(a)                                  The
Administrative Agent (or its counsel) shall have received from Holdings, the
Borrower, the Subsidiary Loan Parties party hereto and the Restatement Required
Lenders either (i) a counterpart of this Agreement signed on behalf of
such party or (ii) written evidence satisfactory to the Administrative
Agent (which may include telecopy transmission of a signed signature page of
this Agreement) that such party has signed a counterpart of this Agreement.


 


(b)                                 The
Administrative Agent shall have received a favorable written opinion (addressed
to the Administrative Agent and the Lenders and dated the Restatement Effective
Date) of each of (i) Paul, Weiss, Rifkind, Wharton & Garrison
LLP, counsel for Holdings and the Borrower, substantially in the form of Exhibit B,
and (ii) Dechert LLP, substantially in the form of Exhibit C.  Holdings and the Borrower hereby request such
counsel to deliver such opinions.


 


(c)                                  The
Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of each Loan Party, the authorization
of the Transactions and any other legal matters relating to the Loan Parties,
the Loan Documents or the Transactions, all in form and substance reasonably
satisfactory to the Administrative Agent and its counsel.


 


(d)                                 The
Administrative Agent shall have received a certificate, dated the Restatement
Effective Date and signed by the President, a Vice President or a Financial
Officer of the Borrower, confirming compliance with the conditions set forth in
paragraphs (a) and (b) of Section 4.02 of the Restated Credit
Agreement.


 


5





















 


(e)                                  The
Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Restatement Effective Date, including, to the extent
invoiced, reimbursement or payment of all out-of-pocket expenses (including
reasonable fees, charges and disbursements of counsel) required to be
reimbursed or paid by any Loan Party hereunder or under any other Loan
Document.


 


(f)                                    The
Collateral Agent shall have received (i) all documents and instruments
required by law or reasonably requested by the Collateral Agent to be filed,
registered or recorded to create or perfect the Liens intended to be created
under the Security Documents after giving effect to the Transactions, (ii) the
results of bring-down searches of the Uniform Commercial Code filings made with
respect to the Loan Parties and (iii) a completed update to the Perfection
Certificate dated the Restatement Effective Date (which shall include all
relevant information regarding Holdings) and signed by an executive officer or
Financial Officer of the Borrower, together with all attachments contemplated
thereby.


 


(g)                                 The
Collateral Agent shall have received (i) to the extent requested by the
Collateral Agent, amendments to each Mortgage executed in connection with the
Existing Credit Agreement providing that the Obligations shall be secured by a
Lien on each Mortgaged Property, signed on behalf of the record owner of such
Mortgaged Property, and (ii) such title searches, legal opinions and other
documents with respect thereto as the Collateral Agent may reasonably request
with respect to any such Mortgage, all at the expense of the Loan Parties.


 


(h)                                 The
Administrative Agent shall have received evidence that the insurance required
by Section 5.07 of the Restated Credit Agreement and the Security
Documents is in effect.


 


(i)                                     A
Reaffirmation Agreement substantially in the form of Exhibit D hereto
shall have been delivered by each party thereto.


 


(j)                                     The
Initial Public Offering shall have been consummated, and Holdings shall have
received not less than $187,500,000 in gross cash proceeds as a result of the
Initial Public Offering.  Holdings and
the Borrower shall have repaid the Repaid Loans in accordance with Section 3(b) above.


 


Notwithstanding the
foregoing, the consummation of the transactions set forth in Sections 3, 4 and
5 of this Agreement and the obligations of the Lenders to make Loans under the
Restated Credit Agreement shall not become effective unless each of the
foregoing conditions is satisfied or waived at or prior to 5:00 p.m., New
York City time, on December 21, 2004 (and, in the event such conditions
are not so satisfied or waived, this Agreement shall terminate at such time).


 


SECTION 7. 
Effectiveness; Counterparts; Amendments; Fees.  This Agreement shall become effective when
copies hereof that, when taken together, bear the signatures of Holdings, the
Borrower, the Administrative Agent, the Subsidiary Loan Parties party hereto
and the Required Restatement Lenders shall have been received by


 


6





















 


the Administrative Agent.  This
Agreement may not be amended nor may any provision hereof be waived except
pursuant to a writing signed by Holdings, the Borrower, the Subsidiary Loan
Parties party hereto, the Administrative Agent and the Required Restatement
Lenders.  This Agreement may be executed
in two or more counterparts, each of which shall constitute an original but all
of which when taken together shall constitute a single contract.  Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Agreement.


 


SECTION 8. 
No Novation.  Neither this
Agreement nor the sales, assignments, purchases and assumptions contemplated
hereby shall extinguish the Loans outstanding under the Existing Credit
Agreement or release the Liens granted under the Security Documents.  Nothing herein contained shall be construed
as a substitution or novation of the Loans outstanding under the Existing
Credit Agreement, which shall remain outstanding after the Restatement
Effective Date as modified hereby.  Notwithstanding
any provision of this Agreement, the provisions of Sections 2.15, 2.16, 2.17
and 9.03 of the Existing Credit Agreement as in effect immediately prior to the
Restatement Effective Date will continue to be effective as to all matters
arising out of or in any way related to facts or events existing or occurring
prior to the Restatement Effective Date.


 


SECTION 9. 
Notices.  All notices
hereunder shall be given in accordance with the provisions of Section 9.01
of the Restated Credit Agreement.


 


SECTION 10. 
Applicable Law; Waiver of Jury Trial.  (A) THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.


 


(B)                                EACH
PARTY HERETO HEREBY AGREES AS SET FORTH IN SECTION 9.11 OF THE RESTATED
CREDIT AGREEMENT AS IF SUCH SECTION WERE SET FORTH IN FULL HEREIN.


 


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


 


	
   

  	
   

  	
  INTERLINE
  BRANDS, INC.,

  
	
   

  	
   

  	
  a Delaware
  corporation,

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Thomas J. Tossavainen

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Thomas J.
  Tossavainen

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President
  of Finance &

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Treasurer

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  INTERLINE
  BRANDS, INC.,

  
	
   

  	
   

  	
  a New Jersey
  corporation,

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Thomas J. Tossavainen

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Thomas J.
  Tossavainen

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President
  of Finance &

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Treasurer

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  WILMAR
  FINANCIAL, INC.,

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Thomas J. Tossavainen

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Thomas J.
  Tossavainen

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President
  of Finance &

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Treasurer

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  WILMAR HOLDINGS,
  INC.,

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Thomas J. Tossavainen

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Thomas J.
  Tossavainen

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President
  of Finance &

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Treasurer

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  GLENWOOD
  ACQUISITION LLC,

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Thomas J. Tossavainen

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Thomas J.
  Tossavainen

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President
  of Finance &

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Treasurer

  
								



 





















 


	
   

  	
   

  	
  CREDIT SUISSE
  FIRST BOSTON, acting through its Cayman Islands branch, individually and as
  Administrative Agent,

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Robert Hetu

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Robert Hetu

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Ian W. Nalitt

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Ian W. Nalitt

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Associate

  
							



 





















 


	
   

  	
   

  	
  JPMORGAN CHASE
  BANK, N.A.,

  
	
   

  	
   

  	
  individually and
  as Syndication Agent,

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ William J. Caggiano

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name: 

  	
  William J.
  Caggiano

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
   Managing Director

  
							



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:
  ORIX FINANCIAL SERVICES, INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Christopher L. Smith

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Christopher L.
  Smith

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized
  Representative

  
							



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution: SUN
  TRUST BANK

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ David W. Penter

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  David W. Penter

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
							



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution: 

  	
  GMAC COMMERCIAL
  FINANCE LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ David Grabosky

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  David Grabosky

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
							



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:  

  	
  FLEET NATIONAL
  BANK,

  
	
   

  	
   

  	
   

  	
   

  	
  a Bank of
  America Company

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Peter Van Der Horst

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Peter Van Der
  Horst

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Director

  
							



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution: THE
  BANK OF NEW YORK

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Susan M. Graham

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Susan M. Graham

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
							



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:  

  	
  LEHMAN
  COMMERCIAL PAPER INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Francis Chang

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Francis Chang

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
							



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution: 

  	
  GREEN LANE CLO
  LTD.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Kaitlin Trinh

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Kaitlin Trinh

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
							



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:  

  	
  MERRILL LYNCH
  CAPITAL, a

  
	
   

  	
   

  	
   

  	
   

  	
  division of
  Merrill Lynch Business

  
	
   

  	
   

  	
   

  	
   

  	
  Financial
  Services Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Kelli O’Connell

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Kelli O’Connell

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
							



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:  

  	
  SANKATY
  ADVISORS, LLC as

  
	
   

  	
   

  	
   

  	
   

  	
  Collateral
  Manager for Castle Hill

  
	
   

  	
   

  	
   

  	
   

  	
  I-Ingots, Ltd.,
  as Term Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Diane J. Exter

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Diane J. Exter

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Portfolio
  Manager

  
							



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution: 

  	
  SANKATY
  ADVISORS, LLC as

  
	
   

  	
   

  	
   

  	
   

  	
  Collateral
  Manager for Brant Point

  
	
   

  	
   

  	
   

  	
   

  	
  CBO 2000-1 Ltd.,
  as Term Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Diane J. Exter

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Diane J. Exter

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Portfolio
  Manager

  
							



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution: 

  	
  SANKATY
  ADVISORS, LLC as

  
	
   

  	
   

  	
   

  	
   

  	
  Collateral
  Manager for Race Point

  
	
   

  	
   

  	
   

  	
   

  	
  CLO, Limited, as
  Term Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Diane J. Exter

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Diane J. Exter

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Portfolio
  Manager

  
							



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution: 

  	
  SANKATY
  ADVISORS, LLC as

  
	
   

  	
   

  	
   

  	
   

  	
  Collateral
  Manager for Castle Hill III

  
	
   

  	
   

  	
   

  	
   

  	
  CLO, Limited, as
  Term Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Diane J. Exter

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Diane J. Exter

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Portfolio
  Manager

  
							



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution: 

  	
  SANKATY HIGH
  YIELD

  
	
   

  	
   

  	
   

  	
   

  	
  PARTNERS II,
  L.P.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Diane J. Exter

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Diane J. Exter

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Portfolio
  Manager

  
							



 





















 


	
   

  	
   

  	
   

  	
  SIGNATURE PAGE TO AMENDMENT AND RESTATEMENT
  AGREEMENT DATED AS OF DECEMBER 21, 2004, AMONG INTERLINE BRANDS, INC., A
  DELAWARE CORPORATION, INTERLINE BRANDS, INC., A NEW JERSEY CORPORATION, THE
  SUBSIDIARY LOAN PARTIES PARTY THERETO, THE LENDERS PARTY THERETO, CREDIT
  SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT, AND JPMORGAN CHASE BANK, N.A.,
  AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution: 

  	
  SANKATY
  ADVISORS, LLC as

  
	
   

  	
   

  	
   

  	
   

  	
  Collateral
  Manager for Race Point II

  
	
   

  	
   

  	
   

  	
   

  	
  CLO, Limited, as
  Term Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Diane J. Exter

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Diane J. Exter

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Portfolio
  Manager

  
							



 





















 


	
   

  	
   

  	
   

  	
  SIGNATURE PAGE TO AMENDMENT AND RESTATEMENT
  AGREEMENT DATED AS OF DECEMBER 21, 2004, AMONG INTERLINE BRANDS, INC., A
  DELAWARE CORPORATION, INTERLINE BRANDS, INC., A NEW JERSEY CORPORATION, THE
  SUBSIDIARY LOAN PARTIES PARTY THERETO, THE LENDERS PARTY THERETO, CREDIT
  SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT, AND JPMORGAN CHASE BANK, N.A.,
  AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution: 

  	
  KZH CYPRESSTREE-1
  LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Hi Hua

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Hi Hua

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized Agent

  
							



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution: 

  	
  KZH STERLING LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Hi Hua

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Hi Hua

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized Agent

  
							



 





















 


	
   

  	
   

  	
   

  	
  SIGNATURE PAGE TO AMENDMENT AND RESTATEMENT
  AGREEMENT DATED AS OF DECEMBER 21, 2004, AMONG INTERLINE BRANDS, INC., A
  DELAWARE CORPORATION, INTERLINE BRANDS, INC., A NEW JERSEY CORPORATION, THE
  SUBSIDIARY LOAN PARTIES PARTY THERETO, THE LENDERS PARTY THERETO, CREDIT
  SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT, AND JPMORGAN CHASE BANK, N.A.,
  AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution: 

  	
  HARBOUR TOWN
  FUNDING LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Diana M. Himes

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Diana M. Himes

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Assistant Vice
  President

  
							



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:

  	
  By:

  	
  CALLIDUS DEBT
  PARTNERS

  
	
   

  	
   

  	
   

  	
   

  	
  CLO FUND II,
  LTD.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  Its Collateral
  Manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Callidus Capital

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Management, LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Wayne Mueller

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Wayne Mueller

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Managing
  Director

  
									



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:

  	
  MORGAN STANLEY
  PRIME

  
	
   

  	
   

  	
   

  	
   

  	
  INCOME TRUST

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Elizabeth Bodisch

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Elizabeth
  Bodisch

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
							



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:

  	
  REGIMENT
  CAPITAL, LTD.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Regiment Capital
  Management, LLC

  
	
   

  	
   

  	
   

  	
  as its
  Investment Advisor

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Regiment Capital
  Advisors, LLC

  
	
   

  	
   

  	
   

  	
  its Manager and
  pursuant to delegated

  
	
   

  	
   

  	
   

  	
  authority

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Timothy S. Peterson

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Timothy S.
  Peterson

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  President

  
									



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:

  	
  VAN KAMPEN

  
	
   

  	
   

  	
   

  	
   

  	
  SENIOR INCOME
  TRUST

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  Van Kampen
  Investment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Advisory Corp.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Darvin Pierce

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Darvin Pierce

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Executive
  Director

  
								



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:

  	
  VAN KAMPEN

  
	
   

  	
   

  	
   

  	
   

  	
  SENIOR LOAN FUND

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  Van Kampen
  Investment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Advisory Corp.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Darvin Pierce

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Darvin Pierce

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Executive
  Director

  
							



 





















 


	
   

  	
   

  	
   

  	
  SIGNATURE PAGE TO AMENDMENT AND RESTATEMENT
  AGREEMENT DATED AS OF DECEMBER 21, 2004, AMONG INTERLINE BRANDS, INC., A
  DELAWARE CORPORATION, INTERLINE BRANDS, INC., A NEW JERSEY CORPORATION, THE
  SUBSIDIARY LOAN PARTIES PARTY THERETO, THE LENDERS PARTY THERETO, CREDIT
  SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT, AND JPMORGAN CHASE BANK, N.A.,
  AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution: 

  	
  WACHOVIA BANK,
  NA

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ C. Jeffrey Seaton

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  C. Jeffrey
  Seaton

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  C.V.P./M.D.

  
							



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:

  	
  EATON VANCE
  SENIOR INCOME

  
	
   

  	
   

  	
   

  	
   

  	
  TRUST

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  Eaton Vance
  Management

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  as Investment
  Advisor

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Michael B. Botthof

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Michael B.
  Botthof

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
									



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:

  	
  EATON VANCE
  INSTITUTIONAL

  
	
   

  	
   

  	
   

  	
   

  	
  SENIOR LOAN FUND

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  Eaton Vance
  Management

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  as Investment
  Advisor

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Michael B. Botthof

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Michael B.
  Botthof

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
								



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:

  	
  EATON VANCE CDO
  III, LTD.

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  Eaton Vance
  Management

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  as Investment
  Advisor

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Michael B. Botthof

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Michael B.
  Botthof

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
								



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:

  	
  EATON VANCE CDO
  V, LTD.

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  Eaton Vance
  Management

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  as Investment
  Advisor

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Michael B. Botthof

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Michael B.
  Botthof

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
								



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:

  	
  EATON VANCE CDO
  VI, LTD.

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  Eaton Vance
  Management

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  as Investment
  Advisor

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Michael B. Botthof

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Michael B.
  Botthof

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
								



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:

  	
  GRAYSON &
  CO.

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  Boston
  Management and

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Research as
  Investment Advisor

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Michael B. Botthof

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Michael B.
  Botthof

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
								



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:

  	
  BIG SKY LOAN
  FUND, LTD.

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  Eaton Vance
  Management

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  as Investment Advisor

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Michael B. Botthof

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Michael B.
  Botthof

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
								



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:

  	
  SENIOR DEBT
  PORTFOLIO

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  Boston
  Management and Research

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  as Investment
  Advisor

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Michael B. Botthof

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Michael B.
  Botthof

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
								



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:

  	
  EATON VANCE

  
	
   

  	
   

  	
   

  	
   

  	
  LIMITED DURATION
  INCOME

  
	
   

  	
   

  	
   

  	
   

  	
  FUND

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  Eaton Vance
  Management

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  as Investment
  Advisor

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Michael B. Botthof

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Michael B.
  Botthof

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
								



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:

  	
  CENTURION CDO
  VI, LTD.

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  American Express
  Asset

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Management Group
  as Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Vincent P. Pham

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Vincent P. Pham

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Director-Operations

  
								



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:

  	
  SEQUILS-CENTURION
  V., LTD.

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  American Express
  Asset

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Management Group, Inc.
  as

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Collateral
  Manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Vincent P. Pham

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Vincent P. Pham

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Director-Operations

  
								



 





















 


	
   

  	
   

  	
   

  	
  SIGNATURE PAGE TO AMENDMENT AND RESTATEMENT
  AGREEMENT DATED AS OF DECEMBER 21, 2004, AMONG INTERLINE BRANDS, INC., A
  DELAWARE CORPORATION, INTERLINE BRANDS, INC., A NEW JERSEY CORPORATION, THE
  SUBSIDIARY LOAN PARTIES PARTY THERETO, THE LENDERS PARTY THERETO, CREDIT
  SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT, AND JPMORGAN CHASE BANK, N.A.,
  AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:

  	
  IDS LIFE
  INSURANCE COMPANY

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  American Express
  Asset

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Management Group, Inc.
  as

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Collateral
  Manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Yvonne Stevens

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Yvonne Stevens

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Managing
  Director

  
								



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:

  	
  AMERICAN EXPRESS

  
	
   

  	
   

  	
   

  	
   

  	
  CERTIFICATE
  COMPANY

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  American Express
  Asset

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Management Group
  as Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Yvonne Stevens

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Yvonne Stevens

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Managing
  Director

  
								



 





















 


	
   

  	
   

  	
   

  	
  SIGNATURE PAGE TO AMENDMENT AND RESTATEMENT
  AGREEMENT DATED AS OF DECEMBER 21, 2004, AMONG INTERLINE BRANDS, INC., A
  DELAWARE CORPORATION, INTERLINE BRANDS, INC., A NEW JERSEY CORPORATION, THE
  SUBSIDIARY LOAN PARTIES PARTY THERETO, THE LENDERS PARTY THERETO, CREDIT
  SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT, AND JPMORGAN CHASE BANK, N.A.,
  AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:

  	
  FRANKLIN CLO II,
  LIMITED

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ David Ardini

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  David Ardini

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
								



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:

  	
  FRANKLIN CLO
  III, LIMITED

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ David Ardini

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  David Ardini

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
								



 





















 


	
   

  	
   

  	
   

  	
  SIGNATURE PAGE TO AMENDMENT AND RESTATEMENT
  AGREEMENT DATED AS OF DECEMBER 21, 2004, AMONG INTERLINE BRANDS, INC., A
  DELAWARE CORPORATION, INTERLINE BRANDS, INC., A NEW JERSEY CORPORATION, THE
  SUBSIDIARY LOAN PARTIES PARTY THERETO, THE LENDERS PARTY THERETO, CREDIT
  SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT, AND JPMORGAN CHASE BANK, N.A.,
  AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:

  	
  FRANKLIN CLO IV,
  LIMITED

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ David Ardini

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  David Ardini

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
								



 





















 


	
   

  	
   

  	
   

  	
  SIGNATURE PAGE TO AMENDMENT AND RESTATEMENT
  AGREEMENT DATED AS OF DECEMBER 21, 2004, AMONG INTERLINE BRANDS, INC., A
  DELAWARE CORPORATION, INTERLINE BRANDS, INC., A NEW JERSEY CORPORATION, THE
  SUBSIDIARY LOAN PARTIES PARTY THERETO, THE LENDERS PARTY THERETO, CREDIT
  SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT, AND JPMORGAN CHASE BANK, N.A.,
  AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:

  	
  FRANKLIN
  FLOATING RATE

  
	
   

  	
   

  	
   

  	
   

  	
  DAILY ACCESS
  FUND

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Richard Hsu

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Richard Hsu

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
								



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:

  	
  FRANKLIN
  FLOATING RATE

  
	
   

  	
   

  	
   

  	
   

  	
  TRUST

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Richard Hsu

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Richard Hsu

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
								



 





















 


	
   

  	
   

  	
   

  	
  SIGNATURE PAGE TO AMENDMENT AND RESTATEMENT
  AGREEMENT DATED AS OF DECEMBER 21, 2004, AMONG INTERLINE BRANDS, INC., A
  DELAWARE CORPORATION, INTERLINE BRANDS, INC., A NEW JERSEY CORPORATION, THE
  SUBSIDIARY LOAN PARTIES PARTY THERETO, THE LENDERS PARTY THERETO, CREDIT
  SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT, AND JPMORGAN CHASE BANK, N.A.,
  AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:

  	
  FRANKLIN
  FLOATING RATE

  
	
   

  	
   

  	
   

  	
   

  	
  MASTER SERIES

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Richard Hsu

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Richard Hsu

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
								



 





















 


	
   

  	
   

  	
   

  	
  SIGNATURE PAGE TO AMENDMENT AND RESTATEMENT
  AGREEMENT DATED AS OF DECEMBER 21, 2004, AMONG INTERLINE BRANDS, INC., A
  DELAWARE CORPORATION, INTERLINE BRANDS, INC., A NEW JERSEY CORPORATION, THE
  SUBSIDIARY LOAN PARTIES PARTY THERETO, THE LENDERS PARTY THERETO, CREDIT
  SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT, AND JPMORGAN CHASE BANK, N.A.,
  AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:

  	
  DRYDEN IV –
  LEVERAGED LOAN

  
	
   

  	
   

  	
   

  	
   

  	
  CDO 2003

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  Prudential
  Investment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Management, Inc.,
  as Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Martha Tuttle

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Martha Tuttle

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
   

  
								



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004,
  AMONG INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC.,
  A NEW JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE
  LENDERS PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT,
  AND JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:

  	
  DRYDEN III –
  LEVERAGED LOAN

  
	
   

  	
   

  	
   

  	
   

  	
  CDO 2002

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  Prudential Investment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Management, Inc.,
  as Collateral

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Martha Tuttle

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Martha Tuttle

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
   

  
								



 





















 


	
   

  	
   

  	
   

  	
  SIGNATURE PAGE TO AMENDMENT AND RESTATEMENT
  AGREEMENT DATED AS OF DECEMBER 21, 2004, AMONG INTERLINE BRANDS, INC., A
  DELAWARE CORPORATION, INTERLINE BRANDS, INC., A NEW JERSEY CORPORATION, THE
  SUBSIDIARY LOAN PARTIES PARTY THERETO, THE LENDERS PARTY THERETO, CREDIT
  SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT, AND JPMORGAN CHASE BANK, N.A.,
  AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:

  	
  WHITNEY PRIVATE
  DEBT FUND,

  
	
   

  	
   

  	
   

  	
   

  	
  L.P.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Kevin J. Curley

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Kevin J. Curley

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
								



 





















 


	
   

  	
   

  	
  SIGNATURE PAGE
  TO AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF DECEMBER 21, 2004, AMONG
  INTERLINE BRANDS, INC., A DELAWARE CORPORATION, INTERLINE BRANDS, INC., A NEW
  JERSEY CORPORATION, THE SUBSIDIARY LOAN PARTIES PARTY THERETO, THE LENDERS
  PARTY THERETO, CREDIT SUISSE FIRST BOSTON, AS ADMINISTRATIVE AGENT, AND
  JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Institution:

  	
  SKY CBNA LOAN
  FUNDING LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  /s/ Jessica Moreno

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Jessica Moreno

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Attorney-In-Fact

  
								



 





















EXHIBIT A


 


AMENDED AND RESTATED

CREDIT AGREEMENT


 


dated as of


 


December 21, 2004,


 


among


 


INTERLINE BRANDS, INC.,

a Delaware corporation,

as Holdings


 


 


INTERLINE BRANDS, INC.,

a New Jersey corporation

as Borrower,


 


 


The Lenders Party Hereto,


 


 


CREDIT SUISSE FIRST BOSTON,

as Administrative Agent,


 


and


 


JPMORGAN CHASE BANK, N.A.

(f/k/a JPMorgan Chase Bank),

as Syndication Agent


 


 


J.P.  MORGAN
SECURITIES INC.


 


and


 


CREDIT SUISSE FIRST BOSTON,


 


as Joint Bookrunners and Co-Lead Arrangers


 





















 


[CS&M Ref. 06701-2921


 


2





















 


TABLE OF CONTENTS


 


	
  ARTICLE I

  	
   

  
	
   

  	
   

  
	
  Definitions

  	
   

  
	
   

  	
   

  
	
  SECTION 1.01.
  Defined Terms

  	
   

  
	
  SECTION 1.02. Classification of
  Loans and Borrowings

  	
   

  
	
  SECTION 1.03. Terms Generally

  	
   

  
	
  SECTION 1.04. Accounting Terms;
  GAAP

  	
   

  
	
   

  	
   

  
	
  ARTICLE II

  	
   

  
	
   

  	
   

  
	
  The
  Credits

  	
   

  
	
   

  	
   

  
	
  SECTION 2.01. Commitments

  	
   

  
	
  SECTION 2.02. Loans and
  Borrowings

  	
   

  
	
  SECTION 2.03. Requests for
  Borrowings

  	
   

  
	
  SECTION 2.04. Swingline Loans

  	
   

  
	
  SECTION 2.05. Letters of Credit

  	
   

  
	
  SECTION 2.06. Funding of
  Borrowings

  	
   

  
	
  SECTION 2.07. Interest
  Elections

  	
   

  
	
  SECTION 2.08. Termination and
  Reduction of Commitments

  	
   

  
	
  SECTION 2.09. Repayment of
  Loans; Evidence of Debt

  	
   

  
	
  SECTION 2.10. Amortization of
  Term Loans

  	
   

  
	
  SECTION 2.11. Prepayment of
  Loans

  	
   

  
	
  SECTION 2.12. Fees

  	
   

  
	
  SECTION 2.13. Interest

  	
   

  
	
  SECTION 2.14. Alternate Rate of
  Interest

  	
   

  
	
  SECTION 2.15. Increased Costs

  	
   

  
	
  SECTION 2.16. Break Funding
  Payments

  	
   

  
	
  SECTION 2.17. Taxes

  	
   

  
	
  SECTION 2.18. Payments
  Generally; Pro Rata Treatment; Sharing of Setoffs

  	
   

  
	
  SECTION 2.19. Mitigation
  Obligations; Replacement of Lenders

  	
   

  
	
  SECTION 2.20. Incremental
  Extensions of Credit

  	
   

  
	
   

  	
   

  
	
  ARTICLE III

  	
   

  
	
   

  	
   

  
	
  Representations and
  Warranties

  	
   

  
	
   

  	
   

  
	
  SECTION 3.01. Organization;
  Powers

  	
   

  
	
  SECTION 3.02. Authorization;
  Enforceability

  	
   

  
	
  SECTION 3.03. Governmental
  Approvals; No Conflicts

  	
   

  
	
  SECTION 3.04. Financial
  Condition; No Material Adverse Change

  	
   

  
	
  SECTION 3.05. Properties

  	
   

  



 


i





















 


	
  SECTION 3.06. Litigation and
  Environmental Matters

  	
   

  
	
  SECTION 3.07. Compliance with
  Laws and Agreements

  	
   

  
	
  SECTION 3.08. Investment and
  Holding Company Status

  	
   

  
	
  SECTION 3.09. Taxes

  	
   

  
	
  SECTION 3.10. ERISA

  	
   

  
	
  SECTION 3.11. Disclosure

  	
   

  
	
  SECTION 3.12. Subsidiaries

  	
   

  
	
  SECTION 3.13. Insurance

  	
   

  
	
  SECTION 3.14. Labor Matters

  	
   

  
	
  SECTION 3.15. Solvency

  	
   

  
	
  SECTION 3.16. Senior
  Indebtedness; Designated Senior Indebtedness

  	
   

  
	
   

  	
   

  
	
  ARTICLE IV

  	
   

  
	
   

  	
   

  
	
  Conditions

  	
   

  
	
   

  	
   

  
	
  SECTION 4.01. [Intentionally
  Omitted.]

  	
   

  
	
  SECTION 4.02. Each Credit Event

  	
   

  
	
   

  	
   

  
	
  ARTICLE V

  	
   

  
	
   

  	
   

  
	
  Affirmative Covenants

  	
   

  
	
   

  	
   

  
	
  SECTION 5.01. Financial
  Statements and Other Information

  	
   

  
	
  SECTION 5.02. Notices of
  Material Events

  	
   

  
	
  SECTION 5.03. Information
  Regarding Collateral

  	
   

  
	
  SECTION 5.04. Existence; Conduct
  of Business

  	
   

  
	
  SECTION 5.05. Payment of
  Obligations

  	
   

  
	
  SECTION 5.06. Maintenance of
  Properties

  	
   

  
	
  SECTION 5.07. Insurance

  	
   

  
	
  SECTION 5.08. Casualty and
  Condemnation

  	
   

  
	
  SECTION 5.09. Books and Records;
  Inspection and Audit Rights

  	
   

  
	
  SECTION 5.10. Compliance with
  Laws

  	
   

  
	
  SECTION 5.11. Use of Proceeds
  and Letters of Credit

  	
   

  
	
  SECTION 5.12. Additional
  Subsidiaries

  	
   

  
	
  SECTION 5.13. Further Assurances

  	
   

  
	
   

  	
   

  
	
  ARTICLE VI

  	
   

  
	
   

  	
   

  
	
  Negative Covenants

  	
   

  
	
   

  	
   

  
	
  SECTION 6.01. Indebtedness;
  Certain Equity Securities

  	
   

  
	
  SECTION 6.02. Liens

  	
   

  
	
  SECTION 6.03. Fundamental
  Changes

  	
   

  
	
  SECTION 6.04. Investments,
  Loans, Advances, Guarantees and Acquisitions

  	
   

  
	
  SECTION 6.05. Asset Sales

  	
   

  
	
  SECTION 6.06. Sale and Leaseback
  Transactions

  	
   

  



 


ii





















 


	
  SECTION 6.07. Swap Agreements

  	
   

  
	
  SECTION 6.08. Restricted
  Payments; Certain Payments of Indebtedness

  	
   

  
	
  SECTION 6.09. Transactions with
  Affiliates

  	
   

  
	
  SECTION 6.10. Restrictive
  Agreements

  	
   

  
	
  SECTION 6.11. Amendment of
  Material Documents

  	
   

  
	
  SECTION 6.12. Interest Expense
  Coverage Ratio

  	
   

  
	
  SECTION 6.13. Net Leverage
  Ratio

  	
   

  
	
  SECTION 6.14. Maximum Capital
  Expenditures

  	
   

  
	
   

  	
   

  
	
  ARTICLE VII

  	
   

  
	
   

  	
   

  
	
  Events of Default

  	
   

  
	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  
	
   

  	
   

  
	
  The Administrative Agent

  	
   

  
	
   

  	
   

  
	
  ARTICLE IX

  	
   

  
	
   

  	
   

  
	
  Miscellaneous

  	
   

  
	
   

  	
   

  
	
  SECTION 9.01. Notices

  	
   

  
	
  SECTION 9.02. Waivers;
  Amendments

  	
   

  
	
  SECTION 9.03. Expenses;
  Indemnity; Damage Waiver

  	
   

  
	
  SECTION 9.04. Successors and
  Assigns

  	
   

  
	
  SECTION 9.05. Survival

  	
   

  
	
  SECTION 9.06. Counterparts;
  Integration; Effectiveness

  	
   

  
	
  SECTION 9.07. Severability

  	
   

  
	
  SECTION 9.08. Right of Setoff

  	
   

  
	
  SECTION 9.09. Governing Law;
  Jurisdiction; Consent to Service of Process

  	
   

  
	
  SECTION 9.10. WAIVER OF JURY
  TRIAL

  	
   

  
	
  SECTION 9.11. Headings

  	
   

  
	
  SECTION 9.12. Confidentiality

  	
   

  
	
  SECTION 9.13. Interest Rate
  Limitation

  	
   

  
	
  SECTION 9.14. USA Patriot Act

  	
   

  
	
  SECTION 9.15. Existing Credit
  Agreement; Effectiveness of Amendment and Restatement

  	
   

  



 


iii





















 


	
  SCHEDULES:

  	
   

  
	
   

  	
   

  
	
  Schedule 1.01(a)

  	
  —

  	
  Mortgaged
  Property

  	
   

  
	
  Schedule 1.01(b)

  	
  —

  	
  Specified
  Properties

  	
   

  
	
  Schedule 2.01
  

  	
  —

  	
  Commitments

  	
   

  
	
  Schedule 3.05
  

  	
  —

  	
  Real Property

  	
   

  
	
  Schedule 3.06
  

  	
  —

  	
  Disclosed
  Matters

  	
   

  
	
  Schedule 3.12
  

  	
  —

  	
  Subsidiaries

  	
   

  
	
  Schedule 3.13
  

  	
  —

  	
  Insurance

  	
   

  
	
  Schedule 6.01
  

  	
  —

  	
  Existing
  Indebtedness

  	
   

  
	
  Schedule 6.02
  

  	
  —

  	
  Existing Liens

  	
   

  
	
  Schedule 6.04
  

  	
  —

  	
  Existing
  Investments

  	
   

  
	
  Schedule 6.09
  

  	
  —

  	
  Transactions
  with Affiliates

  	
   

  
	
  Schedule 6.10

  	
  —

  	
  Existing
  Restrictions

  	
   

  
	
   

  	
   

  
	
  EXHIBITS:

  	
   

  
	
   

  	
   

  
	
  Exhibit A

  	
  —

  	
  Form of
  Assignment and Assumption

  	
   

  
	
  Exhibit B 

  	
  —

  	
  Form of
  Borrowing Request

  	
   

  
	
  Exhibit C

  	
  —

  	
  Form of
  Interest Election Request

  	
   

  
	
  Exhibit D-1
  

  	
  —

  	
  [Intentionally
  Omitted]

  	
   

  
	
  Exhibit D-2
  

  	
  —

  	
  [Intentionally
  Omitted]

  	
   

  
	
  Exhibit E

  	
  —

  	
  Form of
  Guarantee and Collateral Agreement

  	
   

  
	
  Exhibit F

  	
  —

  	
  Form of
  Perfection Certificate

  	
   

  
	
  Exhibit G

  	
  —

  	
  Form of
  Reaffirmation and Joinder Agreement

  	
   

  
						



 


iv





















 


AMENDED AND RESTATED
CREDIT AGREEMENT dated as of December 21, 2004, among INTERLINE BRANDS,
INC., a Delaware corporation (“Holdings”), INTERLINE BRANDS, INC., a New
Jersey corporation (the “Borrower”), the LENDERS party hereto, CREDIT
SUISSE FIRST BOSTON, a bank organized under the laws of Switzerland and acting
through its Cayman Islands branch, as Administrative Agent, and JPMORGAN CHASE
BANK, N.A. (f/k/a JPMorgan Chase Bank), a national banking association, as
Syndication Agent.


 


Reference is made to the
Credit Agreement dated as of May 29, 2003, as amended by Amendment No. 1
thereto dated as of December 19, 2003, among the Borrower, the Lenders
party thereto, the Administrative Agent and the Syndication Agent (the “Existing
Credit Agreement”).


 


Holdings intends to
consummate an initial public offering of its common stock generating gross
proceeds of not less than $187,500,000 (the “Initial Public Offering”).  In connection with the Initial Public
Offering, the Borrower will merge (the “Merger”) with Interline
Subsidiary, Inc., a wholly owned subsidiary of Holdings, with the Borrower
as the surviving entity in the Merger and a wholly owned subsidiary of
Holdings.  In the Merger, all the
outstanding common stock of the Borrower will be converted into common stock of
Holdings and all the outstanding Existing Preferred Stock will be converted
into the right to receive $55,000,000 in cash and 19,187,500 shares of common
stock of Holdings.  The Net Proceeds from
the Initial Public Offering will be used by Holdings and the Borrower to (a) redeem
35% of the outstanding aggregate principal amount of Senior Subordinated Notes
of the Borrower for an aggregate redemption price (including prepayment
premiums and accrued interest) of approximately $78,100,000, (b) prepay
$31,250,000 aggregate principal amount of Term Loans under the Existing Credit
Agreement, (c) pay aggregate cash consideration in the Merger of
$55,000,000 to the holders of the Existing Preferred Stock, (d) pay
approximately $5,000,000 in costs in connection with the termination of certain
Swap Agreements of the Borrower and (e) pay fees and expenses in
connection with the foregoing of approximately $16,800,000.  The balance, if any, of the Net Proceeds from
the Initial Public Offering will be retained by the Borrower and used for
general corporate purposes.  The
transactions described in this paragraph are collectively referred to as the “IPO
Transactions”.


 


Subject to the
satisfaction of the conditions set forth in the Amendment and Restatement
Agreement dated as of the date hereof among Holdings, the Borrower, the
Required Restatement Lenders (as defined therein), the Administrative Agent and
the Syndication Agent (the “Amendment and Restatement Agreement”), the
Existing Credit Agreement shall be amended and restated as provided herein.


 





















 


ARTICLE I


 


Definitions


 


SECTION 1.01.  Defined Terms.  As used in this Agreement, the following
terms have the meanings specified below:


 


“ABR”, when used
in reference to any Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Alternate Base Rate.


 


“Additional Senior
Subordinated Notes” means any senior subordinated notes issued by the
Borrower after the Restatement Effective Date and the Indebtedness represented
thereby; provided that (a) such senior subordinated notes (i) shall
not provide for guarantors, obligors or security in addition to those which
apply to the Senior Subordinated Notes, (ii) shall not have a maturity
date that is earlier than the date that is 180 days after the Term Loan
Maturity Date or provide for any amortization, sinking fund or other scheduled
payments (other than regularly scheduled interest payments) prior to the date
that is 180 days after the Term Loan Maturity Date and (iii) shall be
subordinated to the Obligations on terms not less favorable to the Lenders than
the terms in respect of the Senior Subordinated Notes and (b) all other
terms (excluding interest rates and redemption premiums) of such senior
subordinated notes shall not be materially less favorable to the Lenders than
those existing with respect to the Senior Subordinated Notes.


 


“Adjusted LIBO Rate”
means, with respect to any Eurodollar Borrowing for any Interest Period, an
interest rate per annum equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.


 


“Administrative Agent”
means Credit Suisse First Boston, in its capacity as administrative agent for
the Lenders hereunder.


 


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


 


“Affiliate” means,
with respect to a specified Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified.


 


“Agents” means the
Administrative Agent and the Syndication Agent.


 


“Agreement” means
this Amended and Restated Credit Agreement, as the same may be renewed,
extended, modified, supplemented or amended from time to time.


 


“Alternate Base Rate”
means, for any day, a rate per annum equal to the greater of (a) the Prime
Rate in effect on such day and (b) the Federal Funds Effective Rate in
effect on such day plus 1⁄2 of 1%.  Any
change in the Alternate Base Rate due to a 


 


2





















 


change in the Prime Rate
or the Federal Funds Effective Rate shall be effective from and including the
effective date of such change in the Prime Rate or the Federal Funds Effective
Rate, respectively.


 


“Amendment and
Restatement Agreement” has the meaning assigned to such term in the
preamble to this Agreement.


 


“Applicable Percentage”
means, with respect to any Revolving Lender, the percentage of the total
Revolving Commitments represented by such Lender’s Revolving Commitment.  If the Revolving Commitments have terminated
or expired, the Applicable Percentages shall be determined based upon the
Revolving Commitments most recently in effect, giving effect to any
assignments.


 


“Applicable Rate”
means, for any day (a) with respect to any ABR Loan or Eurodollar Loan
that is a Term Loan or Revolving Loan, as the case may be, the applicable rate
per annum set forth below under the caption “Term Loan ABR Spread”, “Term Loan
Eurodollar Spread”, “Revolving Loan ABR Spread” or “Revolving Loan Eurodollar
Spread”, as the case may be, based upon the Net Leverage Ratio or, with respect
to a Revolving Loan, the Leverage Ratio, in each case, as of the most recent
determination date:


 


Applicable Rates for Term Loans


 


	
  Net Leverage Ratio:

  	
   

  	
  Term Loan ABR

  Spread

  	
   

  	
  Term Loan Eurodollar

  Spread

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Category 1

  	
   

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  
	
  Ratio is greater than 4.25 to 1.00

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Category 2 

  	
   

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  
	
  Ratio is less than or equal to 4.25 to 1.00 but
  greater than 3.50 to 1.00

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Category 3 

  	
   

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  
	
  Ratio is less than or equal to 3.50 to 1.00 but
  greater than 3.00 to 1.00

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Category 4 

  	
   

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  
	
  Ratio is less than or equal to 3.00 to 1.00 but
  great than or equal to 2.25 to 1.00

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Category 5 

  	
   

  	
  1.00

  	
  %

  	
  2.00

  	
  %

  
	
  Ratio is less than 2.25 to 1.00

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Applicable Rates for Revolving Loans


 


	
  Leverage Ratio:

  	
   

  	
  Revolving Loan ABR

  Spread

  	
   

  	
  Revolving Loan Eurodollar 

  Spread

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Category 1

  	
   

  	
  2.75

  	
  %

  	
  3.75

  	
  %

  
	
  Ratio is greater than 4.25 to 1.00

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Category 2

  	
   

  	
  2.50

  	
  %

  	
  3.50

  	
  %

  
	
  Ratio is less than or equal to 4.25 to 1.00 but
  greater than 3.50 to 1.00

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Category 3

  	
   

  	
  2.25 

  	
  % 

  	
  3.25 

  	
  % 

  
	
  Ratio is less than or equal to 3.50 to 1.00 but
  greater than 3.00 to 1.00 

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Category 4

  	
   

  	
  1.75

  	
  %

  	
  2.75

  	
  %

  
	
  Ratio is less than or equal to 3.00 to 1.00 but
  great than or equal to 2.25 to 1.00

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Category 5

  	
   

  	
  1.75

  	
  %

  	
  2.75

  	
  %

  
	
  Ratio is less than 2.25 to 1.00

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


3





















 


For purposes of the
foregoing, (i) the Net Leverage Ratio or Leverage Ratio, as applicable,
shall be determined as of the end of each fiscal quarter of the Borrower’s
fiscal year based upon the Borrower’s consolidated financial statements
delivered pursuant to Section 5.01 (a) or (b) or, in the case of
a fiscal quarter of any fiscal year, a Pricing Certificate, and (ii) each
change in the Applicable Rate resulting from a change in the Net Leverage Ratio
or Leverage Ratio, as applicable, shall be effective during the period
commencing on and including the date that is three Business Days after the date
of delivery to the Administrative Agent of such consolidated financial statements
or Pricing Certificate indicating such change and ending on the date
immediately preceding the effective date of the next such change; provided
that the Net Leverage Ratio or Leverage Ratio, as applicable, shall be deemed
to be in Category 1, at the option of the Administrative Agent or at the
request of the Required Lenders, (A) at any time that an Event of Default
has occurred and is continuing or (B) if the Borrower fails to deliver the
consolidated financial statements required to be delivered by it pursuant to Section 5.01
(a) or (b), during the period from the expiration of the time for delivery
thereof until the third Business Day after such consolidated financial
statements are delivered.


 


“Approved Fund”
has the meaning assigned to such term in Section 9.04.


 


“Assignment and
Assumption” means an assignment and assumption entered into by a Lender and
an assignee (with the consent of any party whose consent is required by Section 9.04),
and accepted by the Administrative Agent, in the form of Exhibit A or any
other form approved by the Administrative Agent.


 


“Board” means the
Board of Governors of the Federal Reserve System of the United States of
America.


 


“Borrower” means
Interline Brands, Inc., a New Jersey corporation.


 


“Borrowing” means (a) Loans
of the same Class and Type, made, converted or continued on the same date
and, in the case of Eurodollar Loans, as to which a single Interest Period is
in effect, or (b) a Swingline Loan.


 


“Borrowing Request”
means a request by the Borrower for a Borrowing in accordance with Section 2.03
and substantially in the form of Exhibit B, or such other form as shall be
approved by the Administrative Agent.


 


4





















 


“Business Day”
means any day that is not a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to remain closed; provided
that, when used in connection with a Eurodollar Loan, the term “Business Day”
shall also exclude any day on which banks are not open for dealings in dollar
deposits in the London interbank market.


 


“Buyers Access”
means Buyers Access LLC, a Delaware limited liability company.


 


“Buyers Access
Operating Agreement” means the limited liability company agreement dated as
of April 16, 2003, among Buyers Access, Glenwood Acquisition LLC,
AIMCO/NHP Holdings, Inc. and James M. 
Sweeney.


 


“Capital Expenditures”
means, for any period, (a) the additions to property, plant and equipment
and other capital expenditures of the Borrower and the Subsidiaries, on a
consolidated basis, that are (or would be) set forth in a consolidated
statement of cash flows of the Borrower for such period prepared in accordance
with GAAP (including expenditures for maintenance and repairs which should be
capitalized in accordance with GAAP) and (b) Capital Lease Obligations
incurred by the Borrower and the Subsidiaries, on a consolidated basis, during
such period; provided that Capital Expenditures shall not include (i) expenditures
of proceeds of insurance settlements, condemnation awards and other settlements
in respect of lost, destroyed, damaged or condemned assets, equipment or other
property to the extent such expenditures are made to replace or repair such
lost, destroyed, damaged or condemned assets, equipment or other property or
otherwise to acquire, maintain, develop, construct, improve or repair assets or
properties useful in the business of the Borrower or (ii) investments that
constitute a Permitted Acquisition pursuant to clause (a) of Section 6.04.


 


“Capital Lease
Obligations” of any Person means the obligations of such Person to pay rent
or other amounts under any lease of (or other arrangement conveying the right
to use) real or personal property, or a combination thereof, which obligations
are required to be classified and accounted for as capital leases on a balance
sheet of such Person under GAAP, and the amount of such obligations shall be
the capitalized amount thereof determined in accordance with GAAP.


 


“Certificate of
Designation” means the Wilmar Industries, Inc. Certificate of
Designation of Senior Preferred Stock dated May 16, 2000, as in effect on
the date hereof.


 


“Change in Control”
means (a) the failure by Holdings to own, directly or indirectly,
beneficially and of record, Equity Interests in the Borrower representing 100%
of each of the aggregate voting power and aggregate equity value represented by
the issued and outstanding Equity Interests in the Borrower; (b) the
acquisition of ownership, directly or indirectly, beneficially or of record, by
any Person or group (within the meaning of the Securities Exchange Act of 1934,
as amended, and the rules of the SEC thereunder as in effect on the date
hereof), other than the Permitted Investors, of Equity Interests representing
more than 35% of the aggregate voting power or aggregate equity


 


5





















 


value represented by the
issued and outstanding Equity Interests in Holdings, which represents a greater
percentage of the aggregate ordinary voting power or the aggregate equity
value, as applicable, represented by the issued and outstanding Equity
Interests in Holdings than the percentage of the aggregate ordinary voting
power or the aggregate equity value, as applicable, owned, directly or
indirectly, beneficially and of record, by the Sponsors; (c) occupation of
a majority of the seats (other than vacant seats) on the board of directors of
Holdings by Persons who were neither (i) nominated by the board of
directors of Holdings nor (ii) appointed by directors so nominated; (d) the
acquisition of direct or indirect Control of Holdings by any Person or group
other than the Sponsors; or (e) the occurrence of a “Change of Control”,
as defined in the Senior Subordinated Debt Documents or the terms of any
Additional Senior Subordinated Notes.


 


“Change in Law”
means (a) the adoption of any law, rule or regulation after the
Original Closing Date, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender or
Issuing Bank (or, for purposes of Section 2.15(b), by any lending office
of such Lender or by such Lender’s or Issuing Bank’s holding company, if any)
with any request, guideline or directive (whether or not having the force of
law) of any Governmental Authority made or issued after the date of this
Agreement.


 


“Class”, when used
in reference to any Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, are Revolving Loans, Term Loans, Incremental
Extensions of Credit or Swingline Loans and, when used in reference to any
Commitment, refers to whether such Commitment is a Revolving Commitment or any
Commitment in respect of an Incremental Extension of Credit.


 


“CLO” has the
meaning assigned to such term in Section 9.04.


 


“Code” means the
Internal Revenue Code of 1986, as amended from time to time.


 


“Collateral” means
any and all “Collateral”, as defined in any applicable Security
Document.


 


“Collateral Agent”
means the Administrative Agent or other Person acting as collateral agent for
the Secured Parties (as defined in the Collateral Agreement) under the Security
Documents.


 


“Collateral Agreement”
means the Guarantee and Collateral Agreement among Holdings, the Borrower, the
Subsidiary Loan Parties and the Collateral Agent, substantially in the form of Exhibit E.


 


“Collateral and
Guarantee Requirement” means the requirement that:


 


(a)                                  the
Administrative Agent shall have received from each Loan Party either (i) a
counterpart of the Collateral Agreement duly executed and


 


6





















 


delivered on behalf of such Loan Party or (ii) in
the case of any Person that becomes a Loan Party after the Restatement
Effective Date, a supplement to the Collateral Agreement, substantially in the
form specified therein, duly executed and delivered on behalf of such Loan
Party;


 


(b)                                 all
outstanding Equity Interests of (i) the Borrower and (ii) each
Subsidiary owned by or on behalf of any Loan Party shall have been pledged
pursuant to the Collateral Agreement (except that the Loan Parties shall not be
required to pledge (i) more than 65% of the outstanding voting Equity
Interests of any Foreign Subsidiary that is not a Loan Party but is owned
directly by a Loan Party, (ii) any Equity Interests of a Foreign
Subsidiary that is not owned directly by a Loan Party and (iii) any Equity
Interests in a Joint Venture or Glenwood Acquisition LLC), and the
Administrative Agent shall have received certificates or other instruments
representing all such Equity Interests, together with undated stock powers or
other instruments of transfer with respect thereto endorsed in blank;


 


(c)                                  all
Indebtedness of Holdings, the Borrower and each Subsidiary that is owing to any
Loan Party shall be evidenced by a promissory note and shall have been pledged
pursuant to the Collateral Agreement and the Administrative Agent shall have
received all such promissory notes, together with undated instruments of
transfer with respect thereto endorsed in blank;


 


(d)                                 all
documents and instruments, including Uniform Commercial Code financing
statements, required by law or reasonably requested by the Administrative Agent
to be filed, registered or recorded to create the Liens intended to be created
by the Collateral Agreement and perfect such Liens to the extent required by,
and with the priority required by, the Collateral Agreement, shall have been
filed, registered or recorded or delivered to the Administrative Agent for
filing, registration or recording;


 


(e)                                  the
Administrative Agent shall have received (i) counterparts of a Mortgage
with respect to each Mortgaged Property duly executed and delivered by the
record owner of such Mortgaged Property, (ii) a policy or policies of
title insurance issued by a nationally recognized title insurance company
insuring the Lien of each such Mortgage as a valid first-priority Lien on the
Mortgaged Property described therein, free of any other Liens except as
expressly permitted by Section 6.02, together with such endorsements,
coinsurance and reinsurance as the Administrative Agent may reasonably request,
and (iii) such surveys, abstracts, appraisals, legal opinions and other
documents as the Administrative Agent may reasonably request with respect to
any such Mortgage or Mortgaged Property; and


 


(f)                                    each
Loan Party shall have obtained all consents and approvals required to be
obtained by it in connection with the execution and delivery of all Security
Documents to which it is a party, the performance of its obligations thereunder
and the granting by it of the Liens thereunder.


 


7





















 


“Commitment” means
a Revolving Commitment or any commitment in respect of an Incremental Extension
of Credit or any combination thereof (as the context requires).


 


“Consolidated Cash
Interest Expense” means, for any period, the excess of (a) the sum of (i) the
interest expense (including imputed interest expense in respect of Capital
Lease Obligations) of the Borrower and the Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP, (ii) any
interest accrued during such period in respect of Indebtedness of the Borrower
or any Subsidiary that is required to be capitalized rather than included in
consolidated interest expense for such period in accordance with GAAP, plus (iii) any
cash payments made during such period in respect of obligations referred to in
clause (b)(ii) below that were amortized or accrued in a previous period,
minus (b) the sum of (i) to the extent included in such consolidated
interest expense for such period, non-cash amounts attributable to amortization
of financing costs paid in a previous period, plus (ii) to the extent
included in such consolidated interest expense for such period, non-cash
amounts attributable to amortization of debt discounts or accrued interest
payable in kind for such period plus (iii) interest income for such
period.


 


“Consolidated EBITDA”
means, for any period, Consolidated Net Income for such period plus (a) without
duplication and to the extent deducted in determining such Consolidated Net
Income, the sum of (i) consolidated interest expense of the Borrower and
the Subsidiaries for such period, (ii) consolidated income tax expense of
the Borrower and the Subsidiaries for such period (including any income tax
expense of Holdings for such period to the extent the Borrower has made payment
to or for the account of Holdings in respect thereof), (iii) all amounts
attributable to depreciation and amortization for such period, (iv) amortization
or write-down of intangibles (including goodwill), (v) costs and expenses
paid by the Borrower in connection with the Transactions in an aggregate amount
not to exceed $16,800,000 in the fiscal year ending December 31, 2004 or
within 180 days thereafter, (vi) expenses and payments directly
attributable to the termination of real estate leases or real estate sales, the
relocation of distribution and call center facilities and severance in an
aggregate amount not to exceed $1,400,000, (vii) any extraordinary
non-cash charges of the Borrower and the Subsidiaries for such period and (viii) any
compensation expense or other charges of the Borrower and the Subsidiaries for
such period in respect of split-dollar life insurance cancellation costs and
loans to officers, in each case arising out of the IPO Transactions, and minus (b) without
duplication and to the extent included in determining such Consolidated Net
Income, (i) any extraordinary gains of the Borrower and the Subsidiaries
for such period and (ii) write-up of intangibles (including goodwill), all
determined on a consolidated basis in accordance with GAAP.  For purposes of calculating Consolidated
EBITDA for any period of four consecutive fiscal quarters for testing
compliance with Sections 6.12 and 6.13 and for determining the Applicable Rate
and compliance with Section 2.11(d), if the Borrower or any consolidated
Subsidiary has made any Permitted Acquisition during such period of four
consecutive fiscal quarters ending on the date on which the most recent fiscal
quarter ended, Consolidated EBITDA for the relevant period shall be calculated
after giving pro forma effect thereto (and any


 


8





















 


related incurrence or
repayment of Indebtedness, with any new Indebtedness being deemed to be
amortized over the applicable testing period in accordance with its terms) as
if such Permitted Acquisition had occurred on the first day of the four
consecutive fiscal quarter period for which such calculation is being made
(including cost savings to the extent such cost savings would be permitted to
be reflected in pro forma financial information complying with the requirements
of GAAP and Article XI of Regulation S-X under the Securities Exchange Act
of 1934, as amended).


 


“Consolidated Net
Income” means, for any period, the net income or loss of the Borrower and
the Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP (adjusted to reflect any charge, tax or expense incurred
or accrued by Holdings during such period as though such charge, tax or expense
had been incurred by the Borrower, to the extent that the Borrower has made or
is permitted under the Loan Documents to make any payment to or for the account
of Holdings in respect thereof); provided that there shall be excluded (a) the
income of any Person (other than a Loan Party) in which any other Person (other
than the Borrower or any Subsidiary or any director holding qualifying shares
in compliance with applicable law) owns an Equity Interest, except to the
extent of the amount of dividends or other cash distributions actually paid to
the Borrower or any of the Subsidiaries during such period, and (b) the
income or loss of any Person accrued prior to the date it becomes a Subsidiary
or is merged into or consolidated with the Borrower or any Subsidiary or the
date that such Person’s assets are acquired by the Borrower or any Subsidiary.


 


“Control” means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled”
have meanings correlative thereto.


 


“Default” means
any event or condition which constitutes an Event of Default or which upon
notice, lapse of time or both would, unless cured or waived, become an Event of
Default.


 


“Disclosed Matters”
means the actions, suits and proceedings and the environmental matters
disclosed in Schedule 3.06.


 


“dollars” or “$”
refers to lawful money of the United States of America.


 


“Environmental Laws”
means all laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources, the management,
Release or threatened Release of any Hazardous Material or health and safety
matters.


 


“Environmental
Liability” means all liabilities, obligations, damages, losses, claims,
actions, suits, judgments, orders, fines, penalties, fees, expenses and costs,
(including administrative oversight costs, natural resource damages and
remediation costs), whether contingent or otherwise, arising out of or relating
to:  (a) compliance or


 


9





















 


non-compliance with any
Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to
any Hazardous Materials, (d) the Release or threatened Release of any
Hazardous Materials or (e) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed with respect to
any of the foregoing.


 


“Equity Interests”
means shares of capital stock, partnership interests, membership interests in a
limited liability company, beneficial interests in a trust or other equity
ownership interests in a Person, and any warrants, options or other rights entitling
the holder thereof to purchase or acquire any such equity interest.


 


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


 


“ERISA Affiliate”
means any trade or business (whether or not incorporated) that, together with
the Borrower, is treated as a single employer under Section 414(b) or
(c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412
of the Code, is treated as a single employer under Section 414 of the
Code.


 


“ERISA Event” means
(a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event
for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412
of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of
ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its
ERISA Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA
Affiliate from the PBGC or a plan administrator of any notice relating to an
intention to terminate any Plan or Plans or to appoint a trustee to administer
any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; (g) the receipt by the
Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA; or (h) the existence of any event
or condition that could reasonably be expected to constitute grounds under
ERISA for the termination of, or the appointment of a trustee to administer,
any Plan.


 


“Eurodollar”, when
used in reference to any Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate.


 


“Event of Default”
has the meaning assigned to such term in Article VII.


 


“Excess Cash Flow”
means, for any fiscal year, the sum (without duplication) of:


 


10





















 


(a)                                  the
Consolidated Net Income for such fiscal year, adjusted to exclude any gains or
losses attributable to Prepayment Events; plus


 


(b)                                 the
depreciation, amortization and other non-cash charges or losses deducted in
determining Consolidated Net Income for such fiscal year; plus


 


(c)                                  the
amount, if any, by which Net Working Capital decreased during such fiscal year;
minus


 


(d)                                 the
sum of (i) any non-cash gains included in determining such consolidated
net income (or loss) for such fiscal year plus (ii) the amount, if any, by
which Net Working Capital increased during such fiscal year; minus


 


(e)                                  the
sum of (i) Capital Expenditures for such fiscal year (except to the extent
(A) attributable to the incurrence of Capital Lease Obligations, (B) financed
by incurring Long-Term Indebtedness or (C) made pursuant to Section 6.14(a)(ii) or
Section 6.14(c)) plus (ii) any consideration paid during such fiscal
year to make Permitted Acquisitions or other capital investments to the extent
paid using cash generated in the ordinary course of the Borrower’s business;
minus


 


(f)                                    the
aggregate principal amount of Long-Term Indebtedness repaid or prepaid by the
Borrower and the Subsidiaries, on a consolidated basis, during such fiscal
year, excluding (i) Indebtedness in respect of Revolving Loans and Letters
of Credit (unless and to the extent that there is a corresponding reduction in
the Revolving Commitments), (ii) Term Loans prepaid pursuant to Section 2.11(a),
(c) or (d), and (iii) repayments or prepayments of Long-Term
Indebtedness financed by incurring other Long-Term Indebtedness.


 


“Excluded Taxes”
means, with respect to the Administrative Agent, any Lender, any Issuing Bank
or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) net income or franchise taxes
imposed by the United States of America, a state, locality or other political
subdivision thereof or by any jurisdiction (or political subdivision thereof)
under the laws of which such recipient is subject to such taxes as a result of
a present or former connection to such jurisdiction, (b) any branch
profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction described in clause (a) above and (c) in
the case of a Foreign Lender (other than an assignee pursuant to a request by
the Borrower under Section 2.19(b)), any withholding tax that (i) is
in effect and would apply to amounts payable to such Foreign Lender at the time
such Foreign Lender becomes a party to this Agreement (or designates a new
lending office), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Borrower with
respect to any withholding tax pursuant to Section 2.17(a), or (ii) is
attributable to such Foreign Lender’s failure to comply with Section 2.17(e).


 


11





















 


“Existing Credit
Agreement” has the meaning assigned to such term in the preamble to this
Agreement.


 


“Existing Preferred
Stock” means preferred stock of the Borrower issued pursuant to the
Certificate of Designation.


 


“Federal Funds
Effective Rate” means, for any day, 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 on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.


 


“Financial Officer”
means the chief financial officer, principal accounting officer, treasurer or
controller of the Borrower.


 


“Foreign Lender”
means any Lender that is organized under the laws of a jurisdiction other than
that in which the Borrower is located. 
For purposes of this definition, the United States of America, each
State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.


 


“Foreign Subsidiary”
means any Subsidiary that is organized under the laws of a jurisdiction other
than the United States of America or any State thereof or the District of
Columbia.


 


“GAAP” means
generally accepted accounting principles in the United States of America, as in
effect from time to time.


 


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


 


“Guarantee” of or
by any Person (the “guarantor”) means any obligation, contingent or
otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any
obligation of the guarantor, direct or indirect, (a) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Indebtedness
or other obligation or to purchase (or to advance or supply funds for the
purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to
maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account
party or applicant in respect of any letter of credit or letter


 


12





















 


of guaranty issued to
support such Indebtedness or obligation; provided, that the term
Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business.


 


“Hazardous Materials”
means (a) petroleum products and byproducts, asbestos, urea formaldehyde
foam insulation, polychlorinated biphenyls, radon gas, chlorofluorocarbons and
all other ozone-depleting substances; or (b) any chemical, material,
substance, waste, pollutant or contaminant that is prohibited, limited or
regulated by or pursuant to any Environmental Law.


 


“Holdings” means
Interline Brands, Inc., a Delaware corporation.


 


“Incremental Extensions
of Credit” has the meaning assigned to such term in Section 2.20.


 


“Incremental Facility
Amendment” has the meaning assigned to such term in Section 2.20.


 


“Incremental Facility
Closing Date” has the meaning assigned to such term in Section 2.20.


 


“Indebtedness” of
any Person means, without duplication, (a) all obligations of such Person
for borrowed money, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such
Person upon which interest charges are customarily paid, (d) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (e) all
obligations of such Person in respect of the deferred purchase price of property
or services (excluding current accounts payable incurred in the ordinary course
of business), (f) all Indebtedness of others secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise, to
be secured by) any Lien on property owned or acquired by such Person, whether
or not the Indebtedness secured thereby has been assumed, (g) all
Guarantees by such Person of Indebtedness of others, (h) all Capital Lease
Obligations of such Person, (i) all obligations, contingent or otherwise,
of such Person as an account party or applicant in respect of letters of credit
and letters of guaranty and (j) all obligations, contingent or otherwise, of
such Person in respect of bankers’ acceptances. 
The Indebtedness of any Person shall include the Indebtedness of any
other entity (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 entity, except
to the extent the terms of such Indebtedness provide that such Person is not
liable therefor.  For the avoidance of
doubt, “Indebtedness” shall not include post-closing payment adjustments or
earn-outs to which the seller in a Permitted Acquisition may be entitled
(except to the extent provided under clause (c) of the definition of “Pro
Forma Basis”).


 


“Indemnified Taxes”
means Taxes other than Excluded Taxes.


 


13





















 


“Information
Memorandum” means the Confidential Information Memorandum dated December 2004,
relating to Holdings, the Borrower and the Restatement Transactions.


 


“Initial Public
Offering” has the meaning assigned to such term in the preamble to this
Agreement.


 


“Interest Election
Request” means a request by the Borrower to convert or continue a Revolving
Borrowing or Term Borrowing in accordance with Section 2.07 and
substantially in the form of Exhibit C hereto, or such other form as shall
be approved by the Administrative Agent.


 


“Interest Payment Date”
means (a) with respect to any ABR Loan (including a Swingline Loan), the
last Business Day of each March, June, September and December and (b) with
respect to any Eurodollar Loan, the last day of the Interest Period applicable
to the Borrowing of which such Loan is a part and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months’ duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months’ duration after the first day of such Interest Period.


 


“Interest Period”
means, with respect to any Eurodollar Borrowing, the period commencing on the
date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months (or subject to the
availability to each Lender participating in such Borrowing, nine or twelve
months) thereafter, as the Borrower may elect; provided, that (a) if
any Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (b) any
Interest Period that commences on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period.  For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and thereafter
shall be the effective date of the most recent conversion or continuation of
such Borrowing.


 


“IPO Transactions”
has the meaning assigned to such term in the preamble to this Agreement.


 


“Issuing Bank”
means, as the context may require, (a) Credit Suisse First Boston, with
respect to Letters of Credit issued by it, and (b) any other Revolving
Lender that becomes an Issuing Bank pursuant to Section 2.05(i), with
respect to Letters of Credit issued by it. 
An Issuing Bank may, in its discretion, arrange for one or more Letters
of Credit to be issued by Affiliates of such Issuing Bank, in which case the
term “Issuing Bank” shall include any such Affiliate with respect to Letters of
Credit issued by such Affiliate.


 


14





















 


“Joint Venture”
means (a) Buyers Access and (b) any joint venture arrangement
(whether structured as a corporation, limited liability company, partnership or
other entity or arrangement), which is not a Subsidiary but in which the
Borrower or any Subsidiary owns or controls any Equity Interests.


 


“LC Disbursement”
means a payment made by an Issuing Bank pursuant to a Letter of Credit.


 


“LC Exposure”
means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate amount
of all LC Disbursements that have not yet been reimbursed by or on behalf of
the Borrower at such time.  The LC
Exposure of any Revolving Lender at any time shall be its Applicable Percentage
of the total LC Exposure at such time.


 


“Lenders” means
the Persons listed on Schedule 2.01 and any other Person that shall have
become a party hereto pursuant to an Assignment and Assumption or an
Incremental Facility Amendment, other than any such Person that ceases to be a
party hereto pursuant to an Assignment and Assumption.  Unless the context otherwise requires, the
term “Lenders” includes the Swingline Lender.


 


“Letter of Credit”
means any letter of credit issued pursuant to this Agreement.


 


“Leverage Ratio”
means, on any date, the ratio of (a) Total Indebtedness as of such date to
(b) Consolidated EBITDA for the period of four consecutive fiscal quarters
of the Borrower ended on such date (or, if such date is not the last day of a
fiscal quarter, ended on the last day of the fiscal quarter of the Borrower
most recently ended prior to such date).


 


“LIBO Rate” means,
with respect to any Eurodollar Borrowing for any Interest Period, the rate per
annum determined by the Administrative Agent at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period, by reference to the British Bankers’ Association Interest Settlement Rates
(as set forth by any service selected by the Administrative Agent that has been
nominated by the British Bankers’ Association as an authorized information
vendor for the purpose of displaying such rates) as the rate for dollar
deposits with a maturity comparable to such Interest Period.  In the event that such rate is not available
at such time for any reason, then the “LIBO Rate” with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period
are offered by the principal London office of the bank serving as the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior
to the commencement of such Interest Period.


 


“Lien” means, with
respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
hypothecation, encumbrance, charge or security interest in, on or of such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital


 


15





















 


lease or title retention
agreement (or any financing lease having substantially the same economic effect
as any of the foregoing) relating to such asset and (c) in the case of
securities, any purchase option, call or similar right of a third party with
respect to such securities.


 


“Loan Documents”
means the Amendment and Restatement Agreement, this Agreement, the promissory
notes, if any, executed and delivered pursuant to Section 2.09(e), any
Incremental Facility Amendment, the Collateral Agreement and the other Security
Documents.


 


“Loan Parties”
means Holdings, the Borrower and the Subsidiary Loan Parties.


 


“Loans” means the
loans made by the Lenders to the Borrower pursuant to the Existing Credit
Agreement (to the extent outstanding on the date hereof), this Agreement or an
Incremental Facility Amendment.


 


“Long-Term
Indebtedness” means any Indebtedness that, in accordance with GAAP, constitutes
(or, when incurred, constituted) a long-term liability.


 


“Material Adverse
Effect” means a material adverse effect on (a) the condition
(financial or otherwise), assets, operations or business of Holdings, the
Borrower and the Subsidiaries taken as a whole, (b) the ability of any
Loan Party to perform any of its obligations under any Loan Document or (c) the
rights of or benefits available to the Lenders under any Loan Document.


 


“Material Indebtedness”
means Indebtedness (other than the Loans and Letters of Credit), or obligations
in respect of one or more Swap Agreements, of any one or more of the Borrower
and the Subsidiaries in an aggregate principal amount exceeding
$10,000,000.  For purposes of determining
Material Indebtedness, the “principal amount” of the obligations of the
Borrower or any Subsidiary in respect of any Swap Agreement at any time shall
be the maximum aggregate amount (giving effect to any netting agreements) that
the Borrower or such Subsidiary would be required to pay if such Swap Agreement
were terminated at such time.


 


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


 


“Mortgage” means a
mortgage, deed of trust, assignment of leases and rents, leasehold mortgage or
other security document granting a Lien on any Mortgaged Property to secure the
Obligations.  Each Mortgage shall be
satisfactory in form and substance to the Collateral Agent.


 


“Mortgaged Property”
means, initially, each parcel of real property and the improvements thereon
owned by a Loan Party and identified on Schedule 1.01(a), and includes
each other parcel of real property and improvements thereon with respect to
which a Mortgage is granted pursuant to Section 5.12 or 5.13.


 


16





















 


“Multiemployer Plan”
means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.


 


“Net Leverage Ratio”
means, on any date, the ratio of (a) Net Total Indebtedness as of such
date to (b) Consolidated EBITDA for the period of four consecutive fiscal
quarters of the Borrower ended on such date (or, if such date is not the last
day of a fiscal quarter, ended on the last day of the fiscal quarter of the
Borrower most recently ended prior to such date).


 


“Net Proceeds”
means, with respect to any event (a) the cash proceeds received in respect
of such event including (i) any cash received in respect of any non-cash
proceeds, but only as and when received, (ii) in the case of a casualty,
insurance proceeds, and (iii) in the case of a condemnation or similar
event, condemnation awards and similar payments, net of (b) the sum of (i) all
reasonable fees and out-of-pocket expenses paid by Holdings, the Borrower and
the Subsidiaries to third parties (other than Affiliates) in connection with
such event, (ii) in the case of a sale, transfer or other disposition of
an asset (including pursuant to a sale and leaseback transaction or a casualty
or a condemnation or similar proceeding), the amount of all payments required
to be made by Holdings, the Borrower and the Subsidiaries as a result of such
event to repay Indebtedness (other than Loans) secured by such asset or
otherwise subject to mandatory prepayment as a result of such event, and (iii) the
amount of all taxes paid (or reasonably estimated to be payable) by Holdings,
the Borrower and the Subsidiaries, and the amount of any reserves established
by Holdings, the Borrower and the Subsidiaries to fund contingent liabilities
reasonably estimated to be payable, in each case during the year that such
event occurred or the next succeeding year and that are directly attributable
to such event (as determined reasonably and in good faith by the chief
financial officer of the Borrower).


 


“Net Sales” means,
for any period, the net sales of Holdings, the Borrower and the Subsidiaries
for such period, determined on a consolidated basis in accordance with GAAP.


 


“Net Senior Secured
Leverage Ratio” means, on any date, the ratio of (a) Net Total Secured
Senior Indebtedness as of such date to (b) Consolidated EBITDA for the
period of four consecutive fiscal quarters of the Borrower ended on such date
(or, if such date is not the last day of a fiscal quarter, ended on the last
day of the fiscal quarter of the Borrower most recently ended prior to such
date).


 


“Net Total
Indebtedness” means, as of any date, the sum of (a) the aggregate
principal amount of Indebtedness of the Borrower and the Subsidiaries
outstanding as of such date, in the amount that would be reflected on a balance
sheet prepared as of such date on a consolidated basis in accordance with GAAP,
plus (b) the aggregate principal amount of Indebtedness of the Borrower
and the Subsidiaries outstanding as of such date that is not required to be
reflected on a balance sheet in accordance with GAAP, determined on a
consolidated basis; provided that, for purposes of clause (b) above,
the term “Indebtedness” shall not include (i) contingent obligations of
the Borrower or any Subsidiary as an account party in respect of any letter of
credit or


 


17





















 


letter of guaranty unless
such letter of credit or letter of guaranty supports an obligation that
constitutes Indebtedness and (ii) Indebtedness permitted by clause (xi) of
Section 6.01 (a) to the extent the sole recourse with respect to such
Indebtedness is to the Borrower’s Equity Interests in Buyers Access, minus (c) the
aggregate amount of cash and Permitted Investments of Holdings, the Borrower
and the Subsidiaries as of such date, provided that (x) the aggregate
amount of cash and Permitted Investments permitted to be included in this
clause (c) shall not exceed $10,000,000 and (y) for purposes of
calculating Net Total Indebtedness on December 31, 2004, if the
irrevocable notice relating to the redemption of 35% of the outstanding
aggregate principal amount of the Senior Subordinated Notes of the Borrower
pursuant to Section 6.08(b)(v) shall have been delivered to the
trustee under the Senior Subordinated Notes Indenture, then such redemption
shall be deemed to have occurred on December 31, 2004, with approximately
$78,100,000 of cash and Permitted Investments of Holdings, the Borrower and the
Subsidiaries as of such date.


 


“Net Total Senior
Secured Indebtedness” means, as of any date, (a) Net Total
Indebtedness as of such date minus (b) without duplication, the portion of
Net Total Indebtedness as of such date represented by (i) Indebtedness
that is expressly subordinated in right of payment to the Obligations and (ii) Indebtedness
that is not secured by any Lien.


 


“Net Working Capital”
means, at any date, (a) the consolidated current assets of the Borrower
and the Subsidiaries, as of such date (excluding cash and Permitted
Investments) minus (b) the consolidated current liabilities of the
Borrower and the Subsidiaries as of such date (excluding current liabilities in
respect of Indebtedness).  Net Working
Capital at any date may be a positive or negative number.  Net Working Capital increases when it becomes
more positive or less negative and decreases when it becomes less positive or
more negative.


 


“Non-Consenting Lender”
has the meaning assigned to such term in Section 9.02(b).


 


“Obligations” has
the meaning assigned to such term in the Collateral Agreement.


 


“Original Closing Date”
means May 29, 2003.


 


“Other Taxes”
means any and all present or future recording, stamp, documentary, excise,
transfer, sales, property or similar taxes, charges or levies arising from any
payment made under any Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, any Loan Document.


 


“Participant” has
the meaning set forth in Section 9.04.


 


“PBGC” means the
Pension Benefit Guaranty Corporation referred to and defined in ERISA and any
successor entity performing similar functions.


 


18





















 


“Perfection
Certificate” means a certificate in the form of Exhibit F or any other
form approved by the Collateral Agent.


 


“Permitted Acquisition”
means any acquisition by the Borrower or a wholly owned Subsidiary Loan Party
of all the outstanding Equity Interests in, all or substantially all the assets
of, or all or substantially all the assets constituting a division or line of
business of, a Person if (a) such acquisition was not preceded by, or
consummated pursuant to, a hostile offer, (b) no Default has occurred and
is continuing or would result therefrom, (c) all transactions related
thereto are consummated in accordance with applicable laws, (d) all
actions required to be taken with respect to such acquired or newly formed
Subsidiary or assets under Sections 5.12 and 5.13 shall have been taken, (e) on
a Pro Forma Basis, as of the last day of the most recently ended fiscal quarter
of the Borrower for which financial statements are available, (i) the
Borrower is in compliance with the covenants contained in Sections 6.12 and,
6.13 and (ii) the Net Senior Leverage Ratio is less than 2.50 to 1.00, (f) the
business of such Person or such assets, as the case may be, constitute a
business permitted by Section 6.03(b), and (g) the Borrower has
delivered to the Administrative Agent an officers’ certificate to the effect
set forth in clauses (a), (b), (c), (d), (e) and (f) above, together
with all relevant financial information for the Person or assets to be
acquired.


 


“Permitted
Encumbrances” means:


 


(a)                                  Liens
imposed by law for taxes, fees, assessments and other governmental charges that
are not yet due or are being contested in compliance with Section 5.04;


 


(b)                                 carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens
imposed by law, arising in the ordinary course of business and securing
obligations that are not overdue by more than 45 days or are being contested in
compliance with Section 5.05;


 


(c)                                  pledges
and deposits made in the ordinary course of business in compliance with workers’
compensation, unemployment insurance and other social security laws or
regulations;


 


(d)                                 deposits
to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations
of a like nature, in each case in the ordinary course of business;


 


(e)                                  judgment
liens in respect of judgments that do not constitute an Event of Default under
clause (k) of Article VII;


 


(f)                                    easements,
zoning restrictions, rights-of-way, minor defects or irregularities of title
and similar encumbrances on real property imposed by law or arising in the
ordinary course of business that do not secure any monetary obligations and do
not materially detract from the value of the affected property


 


19





















 


or interfere with the ordinary conduct of business of
the Borrower or any Subsidiary; and


 


(g)                                 landlords’
and lessors’ and other like Liens in respect of rent not in default;


 


provided that the term “Permitted
Encumbrances” shall not include any Lien securing Indebtedness.


 


“Permitted Investments”
means:


 


(a)                                  direct
obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency
thereof to the extent such obligations are backed by the full faith and credit
of the United States of America), in each case maturing within one year from
the date of acquisition thereof;


 


(b)                                 investments
in commercial paper maturing within 270 days from the date of acquisition
thereof and having, at such date of acquisition, a rating of at least A1 by
S&P or P-1 by Moody’s;


 


(c)                                  investments
in certificates of deposit, banker’s acceptances and time deposits maturing
within 180 days from the date of acquisition thereof issued or guaranteed by or
placed with, and money market deposit accounts issued or offered by, any
domestic office of any commercial bank organized under the laws of the United
States of America or any State thereof which has a combined capital and surplus
and undivided profits of not less than $500,000,000;


 


(d)                                 fully
collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (a) above and entered into with a financial
institution satisfying the criteria described in clause (c) above; and


 


(e)                                  money
market funds that (i) comply with the criteria set forth in SEC Rule 2a-7
under the Investment Company Act of 1940, as amended, (ii) are rated AAA
by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least
$5,000,000,000.


 


“Permitted Investors”
means Parthenon Capital, Inc., J.P. 
Morgan Partners LLC, General Motors Investment Management Corporation,
Michael J.  Grebe, William E.  Sanford, William R.  Pray, William S.  Green, Charles Blackmon and any Affiliate of
the foregoing.


 


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


 


20





















 


“Plan” means any
employee pension benefit plan (other than a Multiemployer Plan) subject to the
provisions of Title IV of ERISA or Section 412 of the Code or Section 302
of ERISA, and in respect of which the Borrower has any liability or any ERISA Affiliate
is (or, if such plan were terminated, would under Section 4069 of ERISA be
deemed to be) an “employer” as defined in Section 3(5) of ERISA.


 


“Prepayment Event”
means:


 


(a)                                  any
sale, transfer or other disposition (including pursuant to a sale and leaseback
transaction) of any property or asset of the Borrower or any Subsidiary, other
than dispositions described in clauses (a), (b), (c), (d), (e), (g) and (i) of
Section 6.05; or


 


(b)                                 any
casualty or other insured damage to, or any taking under power of eminent
domain or by condemnation or similar proceeding of, any property or asset of
the Borrower or any Subsidiary, with a fair value immediately prior to such
event equal to or greater than $2,000,000; or


 


(c)                                  the
incurrence by the Borrower or any Subsidiary of any Indebtedness, other than
Indebtedness permitted under Section 6.01.


 


“Pricing Certificate”
means a certificate signed by a Financial Officer, certifying the Net Leverage
Ratio or Leverage Ratio, as applicable, for any period of four fiscal quarters
for which the Net Leverage Ratio or Leverage Ratio, as applicable, is
calculated.


 


“Prime Rate” means
the rate of interest per annum determined from time to time by the
Administrative Agent as its prime rate in effect for dollars at its principal office
in New York City; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective.


 


“Pro Forma Basis”
means, with respect to the calculation of any financial ratio for any period of
four consecutive fiscal quarters (the “Reference Period”) pursuant to Section 2.20,
Section 6.04(a) or Section 6.08(a)(viii):


 


(a)                                  in
making any determination of Consolidated EBITDA, pro forma effect shall be
given to any Permitted Acquisition that occurred during such Reference Period
or thereafter and through and including the date of consummation of the event
requiring the calculation of such financial ratio, as if such Permitted
Acquisition occurred on the first day of such Reference Period;


 


(b)                                 in
making any determination of Net Total Indebtedness, Net Total Senior Secured
Indebtedness or Consolidated Cash Interest Expense, pro forma effect shall be
given to any incurrence, repayment or assumption of Indebtedness that occurred
during such Reference Period or thereafter and through and including the date
of consummation of the event requiring the calculation of such


 


21





















 


financial ratio, as if such incurrence, repayment or
assumption of Indebtedness occurred on the first day of such Reference Period;
and


 


(c)                                  in
making any determination of Net Total Indebtedness or Net Total Senior Secured
Indebtedness in connection with any Permitted Acquisition, the term “Indebtedness”
shall be deemed to include the Borrower’s good faith estimate, as of the date
of consummation of such Permitted Acquisition, of the aggregate amount that
will be payable by the Borrower and the Subsidiaries pursuant to any
post-closing payment adjustments or earn-outs with respect to such Permitted
Acquisition,


 


in the case of clauses (a) and (b) with such
pro forma adjustments (i) as would be permitted to be reflected in pro
forma financial information complying with the requirements of Article 11
of Regulation S-X under the Securities Act (and the interpretations of the SEC
thereunder) and (ii) that represent cost savings reasonably expected by
such Financial Officer to be realized within 12 months of the consummation of
the applicable Permitted Acquisition.


 


“Proposed Change”
has the meaning assigned to such term in Section 9.02(b).


 


“Qualified Preferred
Stock” means, with respect to Holdings, preferred stock of Holdings that (a) does
not require cash dividends to be paid on or prior to the date that is 180 days
after the Term Loan Maturity Date, (b) is not mandatorily redeemable
pursuant to a sinking fund obligation or otherwise prior to the date that is
180 days after the Term Loan Maturity Date, (c) does not contain any
maintenance covenants, other covenants adverse to the Lenders or remedies
(other than voting rights and increases in dividend rates) and (d) is
convertible only into common stock or other securities that would constitute
Qualified Preferred Stock.


 


“Reaffirmation
Agreement” means the Reaffirmation and Joinder Agreement substantially in
the form of Exhibit G and entered into in connection with the Amendment
and Restated Agreement, among Holdings, the Borrower, the other Reaffirming
Parties (as defined therein) and the Collateral Agent, as amended, supplemented
or otherwise modified from time to time.


 


“Register” has the
meaning set forth in Section 9.04.


 


“Related Parties”
means, with respect to any specified Person, such Person’s Affiliates and the
respective directors, officers, employees, agents, trustees and advisors of
such Person and such Person’s Affiliates.


 


“Release” means
any release, spill, emission, leaking, dumping, injection, pouring, deposit,
disposal, discharge, dispersal, leaching or migration into or through the
environment or within or upon any building, structure, facility or fixture.


 


22





















 


“Required Lenders”
means, at any time, Lenders having Revolving Exposures, Term Loans, Loans in
respect of Incremental Extensions of Credit, if any, and unused Commitments
representing more than 50% of the sum of the total Revolving Exposures,
outstanding Term Loans, Loans in respect of Incremental Extensions of Credit,
if any, and unused Commitments at such time.


 


“Restricted Payment”
means any dividend or other distribution (whether in cash, securities or other
property) with respect to any Equity Interests in Holdings, the Borrower or any
Subsidiary, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancellation or termination of any Equity
Interests in Holdings, the Borrower or any Subsidiary or any option, warrant or
other right to acquire any such Equity Interests in Holdings, the Borrower or
any Subsidiary.


 


“Restatement Effective
Date” means the “Restatement Effective Date”, as defined in the
Amendment and Restatement Agreement.


 


“Restatement
Transactions” means the execution and delivery of the Amendment and
Restatement Agreement by each Person party thereto, the satisfaction of the
conditions precedent thereof, and the consummation of the transactions
contemplated thereby.


 


“Retained Excess Cash
Flow” means, with respect to any fiscal year beginning on or after January 1,
2005, the amount of Excess Cash Flow for such fiscal year that the Borrower was
not required to use to prepay the Term Loans pursuant to Section 2.11(d).


 


“Revolving
Availability Period” means the period from and including the Restatement
Effective Date to but excluding the earlier of the Revolving Maturity Date and
the date of termination of the Revolving Commitments.


 


“Revolving Commitment”
means, with respect to each Lender, the commitment, if any, of such Lender to
make Revolving Loans and to acquire participations in Letters of Credit and
Swingline Loans hereunder, expressed as an amount representing the maximum
possible aggregate amount of such Lender’s Revolving Exposure hereunder, as
such commitment may be (a) reduced from time to time pursuant to Section 2.08
and (b) reduced or increased from time to time pursuant to assignments by
or to such Lender pursuant to Section 9.04.  The initial amount of each Lender’s Revolving
Commitment is set forth on Schedule 2.01, or in the Assignment and
Assumption pursuant to which such Lender shall have assumed its Revolving
Commitment, as applicable.  The aggregate
amount of the Lenders’ Revolving Commitments on the Restatement Effective Date
is $100,000,000.


 


“Revolving Exposure”
means, with respect to any Lender at any time, the sum of the outstanding
principal amount of such Lender’s Revolving Loans and its LC Exposure and
Swingline Exposure at such time.


 


23





















 


“Revolving Lender”
means a Lender with a Revolving Commitment or, if the Revolving Commitments
have terminated or expired, a Lender with Revolving Exposure.


 


“Revolving Loan”
means a Loan made pursuant to clause (b) of Section 2.01.


 


“Revolving Maturity
Date” means May 31, 2008.


 


“S&P” means
Standard & Poor’s Ratings Group, Inc.


 


“SEC” means the
Securities and Exchange Commission or any Governmental Authority succeeding to
any of its principal functions.


 


“Security Documents”
means the Collateral Agreement, the Mortgages, the Reaffirmation Agreement and
each other security agreement or other instrument or document executed and
delivered pursuant to Section 5.12 or 5.13 to secure any of the
Obligations.


 


“Senior Subordinated
Debt Documents” means the Senior Subordinated Notes Indenture and all other
instruments, agreements and other documents evidencing or governing the Senior
Subordinated Notes or providing for any Guarantee or other right in respect
thereof.


 


“Senior Subordinated
Notes” means the 111⁄2% senior subordinated notes due 2011 issued by the
Borrower prior to the Restatement Effective Date, and the Indebtedness
represented thereby.


 


“Senior Subordinated
Notes Indenture” means the Indenture dated as of May 23, 2003, among
the Borrower, the Subsidiaries listed therein and The Bank of New York, as
trustee, in respect of the Senior Subordinated Notes.


 


“Shareholders
Agreement” means the amended and restated shareholders’ agreement dated as
of September 29, 2000, among the Borrower and certain shareholders of the
Borrower, as amended on the Restatement Effective Date in connection with the
Initial Public Offering.


 


“Specified Properties”
means the properties (and the improvements thereon) owned by the Borrower and
the Subsidiaries and set forth on Schedule 1.01(b).


 


“Sponsors” means
Parthenon Capital, Inc., J.P. 
Morgan Partners LLC and their respective Controlled Affiliates.


 


“Statutory Reserve
Rate” means a fraction (expressed as a decimal), the numerator of which is
the number one and the denominator of which is the number one minus the
aggregate of the maximum reserve percentages (including any marginal, special,
emergency or supplemental reserves) expressed as a decimal established by the
Board to which the bank serving as the Administrative Agent is subject with
respect to


 


24





















 


the Adjusted LIBO Rate,
for eurocurrency funding (currently referred to as “Eurocurrency Liabilities”
in Regulation D of the Board).  Such
reserve percentages shall include those imposed pursuant to such Regulation
D.  Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D or any
comparable regulation.  The Statutory Reserve
Rate shall be adjusted automatically on and as of the effective date of any
change in any reserve percentage.


 


“Subordinated Debt”
means the Senior Subordinated Notes and the Additional Senior Subordinated
Notes and the Indebtedness represented thereby.


 


“Subordinated
Promissory Note” means the 4% Nonrecourse Subordinated Promissory Note due
2010 issued by Glenwood Acquisition LLC, in the aggregate principal amount of
$3,275,000.


 


“subsidiary”
means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent’s consolidated financial statements if such financial statements
were prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other
entity of which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power or, in the case
of a partnership, more than 50% of the partnership interests are, as of such
date, owned, controlled or held.


 


“Subsidiary” means
any subsidiary of the Borrower.  For the
avoidance of doubt, Buyers Access shall not be deemed a Subsidiary.


 


“Subsidiary Loan Party”
means any wholly owned Subsidiary that is not a Foreign Subsidiary.


 


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


 


“Swingline Exposure”
means, at any time, the aggregate principal amount of all Swingline Loans
outstanding at such time.  The Swingline
Exposure of any Lender at any time shall be its Applicable Percentage of the
total Swingline Exposure at such time.


 


25





















 


“Swingline Lender”
means Credit Suisse First Boston, in its capacity as lender of Swingline Loans
hereunder.


 


“Swingline Loan”
means a Loan made pursuant to Section 2.04.


 


“Syndication Agent”
means JPMorgan Chase Bank.


 


“Taxes” means any
and all present or future taxes, levies, imposts, duties, deductions, charges
or withholdings imposed by any Governmental Authority.


 


“Term Loan” means
a Loan made on the Original Closing Date pursuant to clause (a) of Section 2.01
of the Existing Credit Agreement.


 


“Term Loan Lender”
means a Lender with an outstanding Term Loan.


 


“Term Loan Maturity
Date” means December 31, 2010.


 


“Total Indebtedness”
means, as of any date, the sum of (a) the aggregate principal amount of
Indebtedness of the Borrower and the Subsidiaries outstanding as of such date,
in the amount that would be reflected on a balance sheet prepared as of such
date on a consolidated basis in accordance with GAAP, plus (b) the
aggregate principal amount of Indebtedness of the Borrower and the Subsidiaries
outstanding as of such date that is not required to be reflected on a balance
sheet in accordance with GAAP, determined on a consolidated basis; provided
that, for purposes of clause (b) above, the term “Indebtedness” shall not
include (i) contingent obligations of the Borrower or any Subsidiary as an
account party in respect of any letter of credit or letter of guaranty unless
such letter of credit or letter of guaranty supports an obligation that constitutes
Indebtedness and (ii) Indebtedness permitted by clause (xi) of Section 6.01
(a) to the extent the sole recourse with respect to such Indebtedness is
to the Borrower’s Equity Interests in Buyers Access.


 


“Transactions”
means (a) the IPO Transactions and (b) the Restatement Transactions.


 


“Type”, when used
in reference to any Loan or Borrowing, refers to whether the rate of interest
on such Loan, or on the Loans comprising such Borrowing, is determined by
reference to the Adjusted LIBO Rate or the Alternate Base Rate.


 


“Withdrawal Liability”
means liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part I
of Subtitle E of Title IV of ERISA.


 


SECTION 1.02.  Classification of Loans and Borrowings.  For purposes of this Agreement, Loans may be
classified and referred to by Class (e.g., a “Revolving Loan”) or
by Type (e.g., a “Eurodollar Loan”) or by Class and Type (e.g.,
a “Eurodollar Revolving Loan”). 
Borrowings also may be classified and referred to by Class (e.g.,
a


 


26





















 


“Revolving
Borrowing”) or by Type (e.g., a “Eurodollar Borrowing”) or by Class and
Type (e.g., a “Eurodollar Revolving Borrowing”).


 


SECTION 1.03.  Terms Generally.  The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including”
shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be construed to have
the same meaning and effect as the word “shall”.  Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be
construed to include such Person’s successors and assigns, (c) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any particular provision
hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement and (e) the words “asset” and “property”
shall be construed to have the same meaning and effect and to refer to any and
all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.


 


SECTION 1.04.  Accounting Terms; GAAP.  Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that, if
the Borrower notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the Borrower
that the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.


 


ARTICLE II


 


The Credits


 


SECTION 2.01.  Commitments.  (a)  Subject to the terms and conditions
set forth herein, each Lender agrees to make Revolving Loans to the Borrower
from time to time during the Revolving Availability Period in an aggregate
principal amount that will not result in such Lender’s Revolving Exposure
exceeding such Lender’s Revolving Commitment. 
Within the foregoing limits and subject to the terms and conditions set
forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.


 


27





















 


(b)                                 The
Term Loans were made by the Lenders on the Original Closing Date.  All Term Loans outstanding under the Existing
Credit Agreement on the Restatement Effective Date (after giving effect to the
prepayment of Term Loans with the Net Proceeds of the Initial Public Offering
as contemplated by the Amendment and Restatement Agreement) shall remain
outstanding hereunder on the terms set forth herein.  Amounts prepaid or repaid in respect of Term
Loans may not be reborrowed.


 


SECTION 2.02.  Loans and Borrowings.  (a)  Each Loan (other than a Swingline
Loan) shall be made as part of a Borrowing consisting of Loans of the same Class and
Type made by the Lenders ratably in accordance with their respective
Commitments of the applicable Class.  The
failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
Commitments of the Lenders are several and no Lender shall be responsible for
any other Lender’s failure to make Loans as required.


 


(b)                                 Subject
to Section 2.14, each Revolving Borrowing and Term Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request
in accordance herewith; provided that all Revolving Borrowings made on
the Restatement Effective Date must be made as ABR Borrowings.  Each Swingline Loan shall be an ABR
Loan.  Each Lender at its option may make
any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Loan; provided that any exercise of such option
shall not affect the obligation of the Borrower to repay such Loan in
accordance with the terms of this Agreement.


 


(c)                                  At
the commencement of each Interest Period for any Eurodollar Borrowing, such
Borrowing shall be in an aggregate amount that is an integral multiple of
$500,000 and not less than $2,000,000. 
At the time that each ABR Revolving Borrowing is made, such Borrowing
shall be in an aggregate amount that is an integral multiple of $500,000 and
not less than $1,000,000.  Each Swingline
Loan shall be in an amount that is an integral multiple of $250,000 and not
less than $500,000.  Borrowings of more
than one Type and Class may be outstanding at the same time; provided
that there shall not at any time be more than a total of ten Eurodollar
Borrowings outstanding.  Notwithstanding
anything to the contrary in this Section 2.02(c), an ABR Revolving
Borrowing or Swingline Loan may be in an aggregate amount that is (i) equal
to the entire unused balance of the total Revolving Commitments or (ii) required
to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(e).


 


(d)                                 Notwithstanding
any other provision of this Agreement, the Borrower shall not be entitled to
request, or to elect to convert or continue, any Borrowing if the Interest
Period requested with respect thereto would end after the Revolving Maturity
Date or Term Loan Maturity Date, as applicable.


 


SECTION 2.03.  Requests for Borrowings.  To request a Revolving Borrowing, the
Borrower shall notify the Administrative Agent of such request by telephone (a) in
the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York
City time, three Business Days before the date of the proposed Borrowing
(unless otherwise waived by the Administrative Agent) or (b) in the case
of an ABR Borrowing,


 


28





















 


not
later than 11:00 a.m., New York City time, one Business Day before the
date of the proposed Borrowing; provided that any such notice of an ABR
Revolving Borrowing to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.05(e) may be given not later than 10:00 a.m.,
New York City time, on the date of the proposed Borrowing.  Each such telephonic Borrowing Request shall
be irrevocable and shall be confirmed promptly by hand delivery or telecopy to
the Administrative Agent of a written Borrowing Request signed by the
Borrower.  Each such telephonic and
written Borrowing Request shall specify the following information in compliance
with Section 2.02:


 


(i)                                     the
aggregate amount of such Borrowing;


 


(ii)                                  the
date of such Borrowing, which shall be a Business Day;


 


(iii)                               whether
such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;


 


(iv)                              in
the case of a Eurodollar Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of
the term “Interest Period”;


 


(v)                                 the
location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.06; and


 


(vi)                              whether
all or a portion of the proceeds of such Borrowing will be used to finance
Permitted Acquisitions and, after giving effect to such Borrowing, the
aggregate principal amount of outstanding Revolving Loans used to finance
Permitted Acquisitions (which shall be determined as set forth in Section 2.11(f)).


 


If no election as to the Type of Borrowing is
specified, then the requested Borrowing shall be an ABR Borrowing.  If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the Borrower shall be
deemed to have selected an Interest Period of one month’s duration.  Promptly following receipt of a Borrowing
Request in accordance with this Section, the Administrative Agent shall advise
each Lender of the details thereof and of the amount of such Lender’s Loan to
be made as part of the requested Borrowing.


 


SECTION 2.04.  Swingline Loans.  (a)  Subject to the terms and conditions
set forth herein, the Swingline Lender agrees to make Swingline Loans to the
Borrower from time to time during the Revolving Availability Period, in an
aggregate principal amount at any time outstanding that will not result in (i) the
aggregate principal amount of outstanding Swingline Loans exceeding $15,000,000
or (ii) the aggregate amount of the Lenders’ Revolving Exposures exceeding
the total amount of the Lenders’ Revolving Commitments; provided that
the Swingline Lender shall not be required to make a Swingline Loan to
refinance an outstanding Swingline Loan. 
Within the


 


29





















 


foregoing
limits and subject to the terms and conditions set forth herein, the Borrower
may borrow, prepay and reborrow Swingline Loans.


 


(b)                                 To
request a Swingline Loan, the Borrower shall notify the Swingline Lender of
such request by telephone (confirmed by telecopy), not later than 12:00 noon,
New York City time, on the day of a proposed Swingline Loan.  Each such notice shall be irrevocable and
shall specify the requested date (which shall be a Business Day), amount of the
requested Swingline Loan, and the wire transfer instructions for the account of
the Borrower to which proceeds of the Swingline Loan are to be disbursed.  The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the account of
the Borrower specified in the notice (or, in the case of a Swingline Loan made
to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e),
by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City
time, on the requested date of such Swingline Loan.


 


(c)                                  The
Swingline Lender may by written notice given to the Administrative Agent not
later than 12:00 noon, New York City time, on any Business Day require the
Revolving Lenders to acquire participations on such Business Day in all or a
portion of the Swingline Loans outstanding. 
Such notice shall specify the aggregate amount of Swingline Loans in
which Revolving Lenders will participate. 
Promptly upon receipt of such notice, the Administrative Agent will give
notice thereof to each Revolving Lender, specifying in such notice such Lender’s
Applicable Percentage of such Swingline Loan or Loans.  Each Revolving Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of the Swingline Lender, such Lender’s
Applicable Percentage of such Swingline Loan or Loans.  Each Revolving Lender acknowledges and agrees
that its obligation to acquire participations in Swingline Loans pursuant to
this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever.  Each Revolving Lender shall
comply with its obligation under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.06 with
respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis
mutandis, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts so
received by it from the Revolving Lenders. 
The Administrative Agent shall notify the Borrower of any participations
in any Swingline Loan acquired pursuant to this paragraph, and thereafter
payments in respect of such Swingline Loan shall be made to the Administrative
Agent and not to the Swingline Lender. 
Any amounts received by the Swingline Lender from the Borrower (or other
party on behalf of the Borrower) in respect of a Swingline Loan after receipt
by the Swingline Lender of the proceeds of a sale of participations therein
shall be promptly remitted to the Administrative Agent; any such amounts
received by the Administrative Agent shall be promptly remitted by the
Administrative Agent to the Revolving Lenders that shall have made their
payments pursuant to this paragraph and to the Swingline Lender, as their
interests may appear; provided that any such payment so remitted shall
be repaid to the Swingline Lender or to the Administrative Agent, as
applicable, if and to


 


30





















 


the extent such payment is required to be refunded to the Borrower for
any reason.  The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Borrower of any default in the payment thereof.


 


SECTION 2.05.  Letters of Credit.  (a)  General.  Subject to the terms and conditions set forth
herein, the Borrower may request the issuance of Letters of Credit for its own
account, in a form reasonably acceptable to the Administrative Agent and the
applicable Issuing Bank, at any time and from time to time during the Revolving
Availability Period.  In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by the Borrower to, or entered into by the Borrower with, any Issuing
Bank relating to any Letter of Credit, the terms and conditions of this
Agreement shall control.


 


(b)                                 Notice
of Issuance, Amendment, Renewal, Extension; Certain Conditions.  To request the issuance of a Letter of Credit
(or the amendment, renewal or extension of an outstanding Letter of Credit),
the Borrower shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the
applicable Issuing Bank) to the applicable Issuing Bank (which may be any
Issuing Bank selected by the Borrower if there is more than one Issuing Bank)
and the Administrative Agent (reasonably in advance of the requested date of
issuance, amendment, renewal or extension) a notice requesting the issuance of
a Letter of Credit, or identifying the Letter of Credit to be amended, renewed
or extended, and specifying the date of issuance, amendment, renewal or
extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this
Section), the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare,
amend, renew or extend such Letter of Credit. 
If requested by the applicable Issuing Bank, the Borrower also shall
submit a letter of credit application on such Issuing Bank’s standard form in
connection with any request for a Letter of Credit.  A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or extension
of each Letter of Credit the Borrower shall be deemed to represent and warrant
that), after giving effect to such issuance, amendment, renewal or extension (i) the
LC Exposure shall not exceed $20,000,000 and (ii) the aggregate amount of
the Lenders’ Revolving Exposures shall not exceed the total amount of the
Lenders’ Revolving Commitments.


 


(c)                                  Expiration
Date.  Each Letter of Credit shall
expire at or prior to the close of business on the earlier of (i) the date
one year after the date of the issuance of such Letter of Credit (or, in the
case of any renewal or extension thereof, one year after such renewal or
extension) and (ii) the date that is five Business Days prior to the
Revolving Maturity Date; provided that any standby Letter of Credit may
contain customary automatic renewal provisions agreed upon by the Borrower and
the applicable Issuing Bank pursuant to which the expiration date is
automatically extended by a specific time period (but not to a date later than
the date set forth in clause (ii) above) unless the applicable Issuing
Bank gives notice to the beneficiary of such Letter of Credit at least 60 days
prior to the expiration date of such Letter of Credit.


 


31





















 


(d)                                 Participations.  By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the applicable Issuing Bank or the Lenders, the
applicable Issuing Bank hereby grants to each Revolving Lender, and each
Revolving Lender hereby acquires from such Issuing Bank, a participation in
such Letter of Credit equal to such Lender’s Applicable Percentage of the
aggregate amount available to be drawn under such Letter of Credit.  In consideration and in furtherance of the
foregoing, each Revolving Lender hereby absolutely and unconditionally agrees
to pay to the Administrative Agent, for the account of the applicable Issuing
Bank, such Lender’s Applicable Percentage of each LC Disbursement made by such
Issuing Bank and not reimbursed by the Borrower on the date due as provided in
paragraph (e) of this Section, or of any reimbursement payment required to
be refunded to the Borrower for any reason. 
Each Revolving Lender acknowledges and agrees that its obligation to
acquire participations pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.


 


(e)                                  Reimbursement.  If an Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse
such LC Disbursement by paying to the Administrative Agent an amount equal to
such LC Disbursement not later than 3:00 p.m., New York City time, on the
date that such LC Disbursement is made, if the Borrower shall have received
notice of such LC Disbursement prior to 10:00 a.m., New York City time, on
such date, or, if such notice has not been received by the Borrower prior to
such time on such date, then not later than 3:00 p.m., New York City time,
on (i) the Business Day that the Borrower receives such notice, if such
notice is received prior to 10:00 a.m., New York City time, on the day of
receipt, or (ii) the Business Day immediately following the day that the
Borrower receives such notice, if such notice is not received prior to such
time on the day of receipt; provided that, the Borrower may, subject to
the conditions to borrowing set forth herein, request in accordance with Section 2.03
or 2.04 that such payment be financed with an ABR Revolving Borrowing or
Swingline Loan in an equivalent amount and, to the extent so financed, the
Borrower’s obligation to make such payment shall be discharged and replaced by
the resulting ABR Revolving Borrowing or Swingline Loan.  If the Borrower fails to make such payment
when due, the Administrative Agent shall notify each Revolving Lender of the
applicable LC Disbursement, the payment then due from the Borrower in respect
thereof and such Lender’s Applicable Percentage thereof.  Promptly following receipt of such notice,
each Revolving Lender shall pay to the Administrative Agent its Applicable
Percentage of the payment then due from the Borrower, in the same manner as
provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06
shall apply, mutatis  mutandis, to the payment obligations of the
Revolving Lenders), and the Administrative Agent shall promptly pay to the
applicable Issuing Bank the amounts so received by it from the Revolving
Lenders.  Promptly following receipt by
the Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such


 


32





















 


payment to the applicable Issuing Bank or, to the extent that Revolving
Lenders have made payments pursuant to this paragraph to reimburse such
applicable Issuing Bank, then to such Lenders and the applicable Issuing Bank
as their interests may appear.  Any
payment made by a Revolving Lender pursuant to this paragraph to reimburse the
applicable Issuing Bank for any LC Disbursement (other than the funding of ABR
Revolving Loans or a Swingline Loan as contemplated above) shall not constitute
a Loan and shall not relieve the Borrower of its obligation to reimburse such
LC Disbursement.


 


(f)                                    Obligations
Absolute.  The Borrower’s obligation
to reimburse LC Disbursements as provided in paragraph (e) of this Section shall
be absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability
of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any
draft or other document presented under a Letter of Credit proving to be
forged, fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect, (iii) payment by an Issuing Bank
under a Letter of Credit against presentation of a draft or other document that
does not comply with the terms of such Letter of Credit, or (iv) any other
event or circumstance whatsoever, whether or not similar to any of the foregoing,
that might, but for the provisions of this Section, constitute a legal or
equitable discharge of, or provide a right of setoff against, the Borrower’s
obligations hereunder.  Neither the
Administrative Agent, the Lenders nor any Issuing Bank, nor any of their
Related Parties, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of
any Issuing Bank; provided that the foregoing shall not be construed to
excuse the applicable Issuing Bank from liability to the Borrower to the extent
of any direct damages (as opposed to consequential or punitive damages, claims
in respect of which are hereby waived by the Borrower to the extent permitted
by applicable law) suffered by the Borrower that are caused by such Issuing Bank’s
failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof.  The parties hereto expressly agree that, in
the absence of gross negligence or wilful misconduct on the part of an Issuing
Bank (as finally determined by a court of competent jurisdiction), such Issuing
Bank shall be deemed to have exercised care in each such determination.  In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be in substantial compliance
with the terms of a Letter of Credit, the applicable Issuing Bank may, in its
sole discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.


 


33





















 


(g)                                 Disbursement
Procedures.  An Issuing Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit.  The applicable Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether such Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to
give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the applicable Issuing Bank and the Revolving Lenders
with respect to any such LC Disbursement in accordance with Section 2.05(e).


 


(h)                                 Interim
Interest.  If an Issuing Bank shall
make any LC Disbursement, then, unless the Borrower shall reimburse such LC
Disbursement in full on the date such LC Disbursement is made, the unpaid
amount thereof shall bear interest, for each day from and including the date
such LC Disbursement is made to but excluding the date that the Borrower
reimburses such LC Disbursement, at the rate per annum then applicable to ABR
Revolving Loans; provided that, if the Borrower fails to reimburse such
LC Disbursement when due pursuant to paragraph (e) of this Section, then Section 2.13(c) shall
apply.  Interest accrued pursuant to this
paragraph shall be for the account of the applicable Issuing Bank, except that
interest accrued on and after the date of payment by any Revolving Lender
pursuant to paragraph (e) of this Section to reimburse such Issuing
Bank shall be for the account of such Lender to the extent of such payment.


 


(i)                                     Issuing
Banks.  Any Issuing Bank may be
terminated, and any existing Revolving Lender may become an Issuing Bank, in
each case at any time by written agreement among the Borrower, the
Administrative Agent and the terminated Issuing Bank or additional Issuing Bank
(as applicable).  The Administrative
Agent shall notify the Lenders of any such additional Issuing Bank.  At the time any such termination shall become
effective, the Borrower shall pay all unpaid fees accrued for the account of
the terminated Issuing Bank pursuant to Section 2.12(b).  From and after the effective date of any such
addition of an Issuing Bank, the additional Issuing Bank shall have all the
rights and obligations of an Issuing Bank under this Agreement with respect to
Letters of Credit issued by it.  After
the termination of an Issuing Bank hereunder, the terminated Issuing Bank shall
remain a party hereto and shall continue to have all the rights and obligations
of an Issuing Bank under this Agreement with respect to Letters of Credit
issued by it prior to such termination, but shall not be required to issue
additional Letters of Credit.


 


(j)                                     Cash
Collateralization.  If any Event of
Default shall occur and be continuing, on the Business Day that the Borrower
receives notice from the Administrative Agent or the Required Lenders (or, if
the maturity of the Loans has been accelerated, Revolving Lenders with LC
Exposures representing greater than 50% of the total LC Exposures) demanding
the deposit of cash collateral pursuant to this paragraph, the Borrower shall
deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an amount in cash
equal to the LC Exposures as of such date plus any accrued and unpaid interest
thereon; provided that the obligation to deposit such cash collateral
shall become effective immediately, and such deposit shall become immediately
due and payable, without demand or other notice


 


34





















 


of any kind, upon the occurrence of any Event of Default with respect
to the Borrower described in clause (h) or (i) of Article VII.  The Borrower also shall deposit cash
collateral pursuant to this paragraph as and to the extent required by Section 2.11(b).  Each such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement.  The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such
account.  Other than any interest earned
on the investment of such deposits, which investments shall be made at the
option and sole discretion of the Administrative Agent and at the Borrower’s
risk and expense, such deposits shall not bear interest.  Interest or profits, if any, on such
investments shall accumulate in such account. 
Moneys in such account shall be applied by the Administrative Agent to
reimburse the applicable Issuing Bank for LC Disbursements for which it has not
been reimbursed and, to the extent not so applied, shall be held for the
satisfaction of the reimbursement obligations of the Borrower for the LC
Exposure at such time or, if the maturity of the Loans has been accelerated
(but subject to the consent of Revolving Lenders with LC Exposures representing
greater than 50% of the total LC Exposures), be applied to satisfy other obligations
of the Borrower under this Agreement.  If
the Borrower is required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount (to the extent not
applied as aforesaid) shall be returned to the Borrower within three Business
Days after all Events of Default have been cured or waived.


 


SECTION 2.06.  Funding of Borrowings.  (a)  Each Lender shall make each Loan to
be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account
of the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders; provided that Swingline Loans shall be made as
provided in Section 2.04.  The
Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Borrower
maintained with the Administrative Agent in New York City and designated by the
Borrower in the applicable Borrowing Request; provided that ABR
Revolving Loans and Swingline Loans made to finance the reimbursement of an LC
Disbursement as provided in Section 2.05(e) shall be remitted by the
Administrative Agent to the applicable Issuing Bank.


 


(b)                                 Unless
the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender’s share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance
upon such assumption, make available to the Borrower a corresponding
amount.  In such event, if a Lender has
not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally
agree to pay to the Administrative Agent forthwith on demand such corresponding
amount with interest thereon, for each day from and including the date such
amount is made available to the Borrower to but excluding the date of payment
to the Administrative Agent, at (i) in the case of such Lender, the
greater of the Federal Funds Effective Rate and a rate


 


35





















 


determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the
Borrower, the interest rate applicable to ABR Loans.  If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender’s Loan
included in such Borrowing as of the date of such Borrowing.


 


SECTION 2.07.  Interest Elections.  (a)  Each Revolving Borrowing and Term
Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurodollar Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request.  Thereafter, the Borrower may elect to convert
such Borrowing to a different Type or to continue such Borrowing and, in the
case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as
provided in this Section.  The Borrower
may elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing.  This Section shall not apply to
Swingline Borrowings, which may not be converted or continued.


 


(b)                                 To
make an election pursuant to this Section, the Borrower shall notify the
Administrative Agent of such election by telephone by the time that a Borrowing
Request would be required under Section 2.03 if the Borrower were requesting
a Revolving Borrowing of the Type resulting from such election to be made on
the effective date of such election. 
Each such telephonic Interest Election Request shall be irrevocable and
shall be confirmed promptly by hand delivery or telecopy to the Administrative
Agent of a written Interest Election Request signed by the Borrower.


 


(c)                                  Each
telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02 and paragraph (e) of this
Section:


 


(i)                                     the
Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) below
shall be specified for each resulting Borrowing);


 


(ii)                                  the
effective date of the election made pursuant to such Interest Election Request,
which shall be a Business Day;


 


(iii)                               whether
the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
and


 


(iv)                              if
the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a
period contemplated by the definition of the term “Interest Period”.


 


36





















 


If any such Interest Election Request requests a
Eurodollar Borrowing but does not specify an Interest Period, then the Borrower
shall be deemed to have selected an Interest Period of one month’s duration.


 


(d)                                 Promptly
following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender of the details thereof and of such Lender’s portion of
each resulting Borrowing.


 


(e)                                  If
the Borrower fails to deliver a timely Interest Election Request with respect
to a Eurodollar Borrowing prior to the end of the Interest Period applicable
thereto, then, unless such Borrowing is repaid as provided herein, at the end
of such Interest Period such Borrowing shall be converted to an ABR
Borrowing.  Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the
Borrower, then, so long as an Event of Default is continuing (i) no
outstanding Borrowing may be converted to or continued as a Eurodollar
Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be
converted to an ABR Borrowing at the end of the Interest Period applicable
thereto.


 


SECTION 2.08.  Termination and Reduction of Commitments.  (a) Unless previously terminated, the
Revolving Commitments shall terminate on the Revolving Maturity Date.


 


(b)                                 The
Borrower may at any time terminate, or from time to time reduce, the Commitments
of any Class; provided that (i) each reduction of the Commitments
of any Class shall be in an amount that is an integral multiple of
$5,000,000 and not less than $5,000,000 and (ii) the Borrower shall not
terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Revolving Loans in accordance with Section 2.11,
the aggregate amount of the Lenders’ Revolving Exposures would exceed the total
amount of the Lenders’ Revolving Commitments.


 


(c)                                  The
Borrower shall notify the Administrative Agent of any election to terminate or
reduce the Commitments under paragraph (b) of this Section at least
three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof.  Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof.  Each notice delivered by the Borrower pursuant
to this Section shall be irrevocable; provided that a notice of
termination of the Revolving Commitments delivered by the Borrower may state
that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice
to the Administrative Agent, which shall promptly notify the Lenders, on or
prior to the specified effective date) if such condition is not satisfied.  Any termination or reduction of the
Commitments of any Class shall be permanent.  Each reduction of the Commitments of any Class shall
be made ratably among the Lenders in accordance with their respective
Commitments of such Class.


 


37





















 


SECTION 2.09.  Repayment of Loans; Evidence of Debt.  (a)  The Borrower hereby unconditionally
promises to pay (i) to the Administrative Agent for the account of each
Lender the then unpaid principal amount of each Revolving Loan of such Lender
on the Revolving Maturity Date, (ii) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Term Loan of
such Lender as provided in Section 2.10 and (iii) to the Swingline
Lender the then unpaid principal amount of each Swingline Loan on the Revolving
Maturity Date; provided that on each date that a Revolving Borrowing is
made, the Borrower shall repay all Swingline Loans that were outstanding on the
date such Borrowing was requested.


 


(b)                                 Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to such Lender resulting
from each Loan made by such Lender, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder.


 


(c)                                  The
Administrative Agent shall maintain accounts in which it shall record (i) the
amount of each Loan made hereunder, the Class and Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder for the account of the Lenders and each Lender’s
share thereof.


 


(d)                                 The
entries made in the accounts maintained pursuant to paragraph (b) or (c) of
this Section shall be prima  facie evidence of the existence
and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.


 


(e)                                  Any
Lender may request that Loans of any Class made by it be evidenced by a
promissory note.  In such event, the
Borrower shall prepare, execute and deliver to such Lender a promissory note
payable to the order of such Lender (or, if requested by such Lender, to such
Lender and its registered assigns) and in a form approved by the Administrative
Agent.  Thereafter, the Loans evidenced
by such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more
promissory notes in such form payable to the order of the payee named therein
(or, if such promissory note is a registered note, to such payee and its
registered assigns).


 


SECTION 2.10. Amortization of Term Loans.  (a)  Subject to adjustment pursuant to
paragraph (c) of this Section, the Borrower shall repay Term Borrowings on
each date set forth below in the aggregate principal amount set forth opposite
such date:  


 


38





















 


	
  Date

  	
   

  	
  Amount

  	
   

  
	
  March 31, 2005

  	
   

  	
  $

  	
  250,000

  	
   

  
	
  June 30, 2005

  	
   

  	
  250,000

  	
   

  
	
  September 30, 2005

  	
   

  	
  250,000

  	
   

  
	
  December 30, 2005

  	
   

  	
  250,000

  	
   

  
	
  March 31, 2006

  	
   

  	
  250,000

  	
   

  
	
  June 30, 2006

  	
   

  	
  250,000

  	
   

  
	
  September 29, 2006

  	
   

  	
  250,000

  	
   

  
	
  December 29, 2006

  	
   

  	
  250,000

  	
   

  
	
  March 30, 2007

  	
   

  	
  250,000

  	
   

  
	
  June 29, 2007

  	
   

  	
  250,000

  	
   

  
	
  September 28, 2007

  	
   

  	
  250,000

  	
   

  
	
  December 31, 2007

  	
   

  	
  250,000

  	
   

  
	
  March 31, 2008

  	
   

  	
  250,000

  	
   

  
	
  June 30, 2008

  	
   

  	
  250,000

  	
   

  
	
  September 30, 2008

  	
   

  	
  250,000

  	
   

  
	
  December 31, 2008

  	
   

  	
  250,000

  	
   

  
	
  March 31, 2009

  	
   

  	
  250,000

  	
   

  
	
  June 30, 2009

  	
   

  	
  250,000

  	
   

  
	
  November 30, 2009

  	
   

  	
  250,000

  	
   

  
	
  December 31, 2009

  	
   

  	
  250,000

  	
   

  
	
  March 31, 2010

  	
   

  	
  250,000

  	
   

  
	
  June 30, 2010

  	
   

  	
  250,000

  	
   

  
	
  September 30, 2010

  	
   

  	
  250,000

  	
   

  
	
  December 31, 2010

  	
   

  	
  94,250,000

  	
   

  
					



 


(b)                                 To
the extent not previously paid, all Term Loans shall be due and payable on the
Term Loan Maturity Date.


 


(c)                                  Any
prepayment of a Term Borrowing or an Incremental Extension of Credit shall be (i) in
the case of prepayments made pursuant to Section 2.11(a), allocated
between the Term Borrowings and the Incremental Extensions of Credit as
directed by the Borrower and applied to reduce the remaining subsequent
scheduled repayments of the Term Borrowings or Incremental Extensions of
Credit, as applicable, pursuant to this Section in direct order of
maturity and (ii) in the case of prepayments made pursuant to Section 2.11(c),
Section 2.11(d) or Section 6.01(a)(viii), allocated between the
Term Borrowings and Incremental Extensions of Credit ratably and applied (x) in
the case of Term Borrowings, to reduce the subsequent scheduled


 


39





















 


repayments of the Term Borrowings to be made pursuant to this Section within
such Class ratably and (y) in the case of Incremental Extensions of
Credit, as agreed in the applicable Incremental Facility Amendment implementing
such Incremental Extension of Credit.


 


(d)                                 Prior
to any repayment of any Term Borrowings hereunder, the Borrower shall select
the Borrowing or Borrowings to be repaid and shall notify the Administrative
Agent by telephone (confirmed by telecopy) of such selection not later than
11:00 a.m., New York City time, (i) three Business Days before the
scheduled date of such repayment in the case of Eurodollar Borrowings or (ii) one
Business Day before the scheduled date of repayment in the case of ABR
Borrowings.  Each repayment of a
Borrowing shall be applied ratably to the Loans included in the repaid
Borrowing.  Repayments of Term Borrowings
shall be accompanied by accrued interest on the amount repaid.


 


SECTION 2.11.  Prepayment of Loans.  (a)  The Borrower shall have the right
at any time and from time to time to prepay any Borrowing in whole or in part,
subject to the requirements of this Section.


 


(b)                                 In
the event and on such occasion that the aggregate amount of the Lenders’
Revolving Exposures exceeds the total amount of the Lenders’ Revolving
Commitments, the Borrower shall prepay Revolving Borrowings or Swingline
Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in
an account with the Administrative Agent pursuant to Section 2.05(j)) in
an aggregate amount equal to such excess.


 


(c)                                  In
the event and on each occasion that any Net Proceeds are received by or on
behalf of the Borrower or any Subsidiary in respect of any Prepayment Event,
the Borrower shall, within three Business Days after such Net Proceeds are
received, prepay Term Borrowings and Incremental Extensions of Credit in an
aggregate amount equal to 100% of such Net Proceeds; provided that, in
the case of any event described in clauses (a) or (b) of the
definition of the term “Prepayment Event”, if the Borrower shall deliver to the
Administrative Agent a certificate of a Financial Officer to the effect that
the Borrower and the Subsidiaries intend to apply the Net Proceeds from such
event (or a portion thereof specified in such certificate), within 360 days
after receipt of such Net Proceeds, to acquire real property, equipment or
other tangible assets to be used in the business of the Borrower and the Subsidiaries,
and certifying that no Default has occurred and is continuing, then no
prepayment shall be required pursuant to this paragraph in respect of the Net
Proceeds in respect of such event (or the portion of such Net Proceeds
specified in such certificate, if applicable) except to the extent of any such
Net Proceeds therefrom that have not been so applied or committed to be applied
pursuant to a bona fide contract by the end of such 360-day period, at
which time a prepayment shall be required in an amount equal to such Net
Proceeds that have not been so applied.


 


(d)                                 Commencing
with the fiscal year ending December 31, 2005, the Borrower shall prepay
Term Borrowings and Incremental Extensions of Credit in an


 


40





















 


aggregate amount equal to (i) the excess of (A) 50% of Excess
Cash Flow over (B) prepayments of Term Loans and Incremental Extensions of
Credit under Section 2.11 (a) during such fiscal year, for any fiscal
year for which the Net Leverage Ratio at the end of such fiscal year is greater
than or equal to 3.75 to 1.00, (ii) the excess of (A) 25% of Excess
Cash Flow over (B) prepayments of Term Loans and Incremental Extensions of
Credit under Section 2.11(a) during such fiscal year, for any fiscal
year for which the Net Leverage Ratio at the end of such fiscal year is greater
than or equal to 3.00 to 1.00 and less than 3.75 to 1.00 and (iii) 0% of
Excess Cash Flow for any fiscal year for which the Net Leverage Ratio at the
end of such fiscal year is less than 3.00 to 1.00.  Each prepayment pursuant to this paragraph
shall be made on or before the date on which financial statements are delivered
pursuant to Section 5.01 with respect to the fiscal year for which Excess
Cash Flow is being calculated (and in any event within 90 days after the end of
such fiscal year).


 


(e)                                  Prior
to any optional or mandatory prepayment of Borrowings hereunder, the Borrower
shall select the Borrowing or Borrowings to be prepaid and shall specify such
selection in the notice of such prepayment pursuant to paragraph (f) of
this Section.


 


(f)                                    The
Borrower shall notify the Administrative Agent (and, in the case of prepayment
of a Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy)
of any prepayment hereunder (i) in the case of prepayment of a Eurodollar
Borrowing, not later than 11:00 a.m., New York City time, three Business
Days before the date of prepayment, (ii) in the case of prepayment of an
ABR Borrowing, not later than 11:00 a.m., New York City time, one Business
Day before the date of prepayment or (iii) in the case of prepayment of a
Swingline Loan, not later than 12:00 noon, New York City time, on the date of
prepayment.  Each such notice shall be
irrevocable and shall specify the prepayment date, the principal amount of each
Borrowing or portion thereof to be prepaid and, in the case of a mandatory
prepayment, a reasonably detailed calculation of the amount of such prepayment;
provided that, if a notice of optional prepayment is given in connection with a
conditional notice of termination of the Revolving Commitments as contemplated
by Section 2.08, then such notice of prepayment may be revoked if such
notice of termination is revoked in accordance with Section 2.08.  Promptly following receipt of any such notice
(other than a notice relating solely to Swingline Loans), the Administrative
Agent shall advise the Lenders of the contents thereof.  Each partial prepayment of any Borrowing
shall be in an amount that would be permitted in the case of an advance of a
Borrowing of the same Type as provided in Section 2.02, except as
necessary to apply fully the required amount of a mandatory prepayment.  Each prepayment of a Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing; provided
that prepayments of Revolving Borrowings shall be deemed to be applied first,
to Revolving Borrowings used for purposes other than to finance Permitted
Acquisitions and second, to Revolving Borrowings used to finance Permitted
Acquisitions.  Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.13.


 


(g)                                 All
voluntary prepayments of the Term Loans effected on or prior to the first
anniversary of the Restatement Effective Date with the proceeds of a


 


41





















 


substantially concurrent issuance or incurrence of new term loans under
this Agreement, as amended, amended and restated, supplemented, waived or
otherwise modified from time to time (excluding a refinancing of all the
facilities outstanding under this Agreement in connection with another
transaction not permitted by this Agreement (as determined prior to giving
effect to any amendment or waiver of this Agreement being adopted in connection
with such transaction)), shall be accompanied by a prepayment fee equal to
1.00% of the aggregate amount of such prepayments if the Applicable Rate (or
similar interest rate spread) applicable to such new term loans is or, upon the
satisfaction of certain conditions, could be less than the Applicable Rate
applicable to the Term Loans on the Restatement Effective Date.


 


SECTION 2.12.  Fees. 
(a)  The Borrower agrees to pay to the Administrative Agent for the
account of each Revolving Lender a commitment fee, which shall accrue at a rate
equal to 0.50% per annum on the average daily unused amount of each Revolving
Commitment of such Lender during the period from and including the Original
Closing Date to but excluding the date on which the Revolving Commitments
terminate.  Accrued commitment fees shall
be payable in arrears on the last Business Day of each March, June, September and
December and on the date on which such Commitments terminate, commencing
on the first such date to occur after the date hereof.  All commitment fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).  For purposes of computing commitment fees
with respect to Revolving Commitments, a Revolving Commitment of a Lender shall
be deemed to be used to the extent of the outstanding Revolving Loans and LC
Exposure of such Lender (and the Swingline Exposure of such Lender shall be
disregarded for such purpose).


 


(b)                                 The
Borrower agrees to pay (i) to the Administrative Agent for the account of
each Revolving Lender a participation fee with respect to its participations in
Letters of Credit, which shall accrue at the same Applicable Rate used to
determine the interest rate applicable to Eurodollar Revolving Loans on the average
daily amount of such Lender’s LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Original Closing Date to but excluding the later of the date on
which such Lender’s Revolving Commitment terminates and the date on which such
Lender ceases to have any LC Exposure, and (ii) to the applicable Issuing
Bank a fronting fee, which shall accrue at the rate or rates per annum
separately agreed upon between the Borrower and such Issuing Bank on the
average daily amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Original Closing Date to but excluding the later of the date of
termination of the Revolving Commitments and the date on which there ceases to
be any LC Exposure, as well as the applicable Issuing Bank’s standard fees with
respect to the issuance, amendment, renewal or extension of any Letter of
Credit or processing of drawings thereunder. 
Participation fees and fronting fees shall be payable on the last
Business Day of each March, June, September and December, commencing on
the first such date to occur after the Original Closing Date; provided
that all such fees shall be payable on the date on which the Revolving
Commitments terminate and any such fees accruing after the date on which the
Revolving Commitments terminate shall be payable on demand.  Any other fees


 


42





















 


payable to any Issuing Bank pursuant to this paragraph shall be payable
within 10 days after demand.  All
participation fees and fronting fees shall be computed on the basis of a year
of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).


 


(c)                                  The
Borrower agrees to pay to the Administrative Agent, for its own account, fees
payable in the amounts and at the times separately agreed upon between the
Borrower and the Administrative Agent.


 


(d)                                 All
fees payable hereunder shall be paid on the dates due, in immediately available
funds, to the Administrative Agent (or to the applicable Issuing Bank, in the
case of fees payable to it) for distribution, in the case of commitment fees
and participation fees, to the Lenders entitled thereto.  Fees paid shall not be refundable under any
circumstances.


 


SECTION 2.13.  Interest.  (a)  The Loans comprising each ABR
Borrowing (including each Swingline Loan) shall bear interest at the Alternate
Base Rate plus the Applicable Rate.


 


(b)                                 The
Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted
LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Rate.


 


(c)                                  Notwithstanding
the foregoing, if any principal of or interest on any Loan or any fee or other
amount payable by the Borrower hereunder is not paid when due, whether at
stated maturity, upon acceleration or otherwise, such overdue amount shall bear
interest, after as well as before judgment, at a rate per annum equal to (i) in
the case of overdue principal of any Loan, 2% plus the rate otherwise
applicable to such Loan as provided in the preceding paragraphs of this Section or
(ii) in the case of any other amount, 2% plus the rate applicable to ABR
Revolving Loans as provided in paragraph (a) of this Section.


 


(d)                                 Accrued
interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and, in the case of Revolving Loans, upon termination of the
Revolving Commitments; provided that (i) interest accrued pursuant
to paragraph (c) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment
of an ABR Revolving Loan prior to the end of the Revolving Availability
Period), accrued interest on the principal amount repaid or prepaid shall be
payable on the date of such repayment or prepayment and (iii) in the event
of any conversion of any Eurodollar Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.


 


(e)                                  All
interest hereunder shall be computed on the basis of a year of 360 days, except
that interest computed by reference to the Alternate Base Rate at times when
the Alternate Base Rate is based on the Prime Rate shall be computed on the
basis of a year of 365 days (or 366 days in a leap year), and in each case
shall be payable for


 


43





















 


the actual number of days elapsed (including the first day but
excluding the last day).  The applicable
Alternate Base Rate or Adjusted LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent
manifest error.


 


SECTION 2.14.  Alternate Rate of Interest.  If prior to the commencement of any Interest
Period for a Eurodollar Borrowing:


 


(a)                                  the
Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for
ascertaining the Adjusted LIBO Rate for such Interest Period; or


 


(b)                                 the
Administrative Agent is advised by the Required Lenders that the Adjusted LIBO
Rate for such Interest Period will not adequately and fairly reflect the cost
to such Lenders of making or maintaining their Loans included in such Borrowing
for such Interest Period;


 


then the Administrative Agent shall give notice
thereof to the Borrower and the Lenders by telephone or telecopy as promptly as
practicable thereafter and, until the Administrative Agent notifies the
Borrower and the Lenders that the circumstances giving rise to such notice no
longer exist (which notice the Administrative Agent agrees to give promptly
after such circumstances cease to exist), (i) any Interest Election
Request that requests the conversion of any Borrowing to, or continuation of
any Borrowing as, a Eurodollar Borrowing shall be ineffective and (ii) if
any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be
made as an ABR Borrowing.


 


SECTION 2.15.  Increased Costs.  (a)  If any Change in Law shall:


 


(i)                                     impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement to the extent reflected in the
Adjusted LIBO Rate) or any Issuing Bank; or


 


(ii)                                  impose
on any Lender or any Issuing Bank or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender or
any Letter of Credit or participation therein;


 


and the result of any of the foregoing shall be to
increase the cost to such Lender of making or maintaining any Eurodollar Loan
(or of maintaining its obligation to make any such Loan) or to increase the
cost to such Lender or any Issuing Bank of participating in, issuing or
maintaining any Letter of Credit or to reduce the amount of any sum received or
receivable by such Lender or Issuing Bank hereunder (whether of principal,
interest or otherwise), then the Borrower will pay to such Lender or Issuing
Bank, as the case may be, such additional amount or amounts as will compensate
such Lender or Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.


 


(b)                                 If
any Lender or any Issuing Bank determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of


 


44





















 


return on such Lender’s or Issuing Bank’s capital or on the capital of
such Lender’s or Issuing Bank’s holding company, if any, as a consequence of
this Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to
a level below that which such Lender or Issuing Bank or such Lender’s or
Issuing Bank’s holding company could have achieved but for such Change in Law
(taking into consideration such Lender’s or Issuing Bank’s policies and the
policies of such Lender’s or Issuing Bank’s holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
or Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or Issuing Bank or such Lender’s or Issuing Bank’s
holding company for any such reduction suffered.


 


(c)                                  A
certificate of a Lender or Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or Issuing Bank or its holding company, as
the case may be, as specified in paragraph (a) or (b) of this Section shall
be delivered to the Borrower and shall be conclusive absent manifest
error.  The Borrower shall pay such
Lender or Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.


 


(d)                                 Failure
or delay on the part of any Lender or an Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or
Issuing Bank’s right to demand such compensation; provided that the
Borrower shall not be required to compensate a Lender or Issuing Bank pursuant
to this Section for any increased costs or reductions incurred more than
180 days prior to the date that such Lender or Issuing Bank, as the case may
be, notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender’s or Issuing Bank’s intention to claim
compensation therefor; provided  further that, if the Change in
Law giving rise to such increased costs or reductions is retroactive, then the
180-day period referred to above shall be extended to include the period
of retroactive effect thereof.


 


SECTION 2.16.  Break Funding Payments.  In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b) the
conversion of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto, (c) the failure to borrow, convert, continue or
prepay any Revolving Loan or Term Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.11(f) and is revoked in accordance therewith), or (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.19,
then, in any such event, the Borrower shall compensate each Lender for the loss
(other than loss of margin or anticipated profit), cost and expense
attributable to such event.  In the case
of a Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed
to include an amount determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such
Loan had such event not occurred, at the Adjusted LIBO Rate that would have
been applicable to such Loan, for the period from the date of such event to the
last day of the then current Interest


 


45





















 


Period
therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan), over (ii) the
amount of interest which would accrue on such principal amount for such period
at the interest rate which such Lender would bid were it to bid, at the
commencement of such period, for dollar deposits of a comparable amount and
period from other banks in the eurodollar market.  A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this Section shall
be delivered to the Borrower and shall be conclusive absent manifest
error.  The Borrower shall pay such
Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.


 


SECTION 2.17.  Taxes. 
(a)  Any and all payments by or on account of any obligation of the
Borrower hereunder or under any other Loan Document shall be made free and
clear of and without deduction for any Indemnified Taxes or Other Taxes; provided
that if the Borrower shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative
Agent, a Lender or an Issuing Bank (as the case may be) receives an amount
equal to the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay the
full amount deducted to the relevant Governmental Authority in accordance with
applicable law.


 


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


 


(c)                                  The
Borrower shall indemnify the Administrative Agent, each Lender and each Issuing
Bank, within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Lender
or such Issuing Bank, as the case may be, on or with respect to any payment by
or on account of any obligation of the Borrower hereunder or under any other
Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted
on or attributable to amounts payable under this Section) and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender or an Issuing Bank,
or by the Administrative Agent on its own behalf or on behalf of a Lender or an
Issuing Bank, shall be conclusive absent manifest error.


 


(d)                                 As
soon as practicable after any payment of Indemnified Taxes or Other Taxes by
the Borrower to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.


 


46





















 


(e)                                  Each
Foreign Lender shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made without
withholding or at a reduced rate, pursuant to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which the Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement.


 


(f)                                    If
the Administrative Agent or a Lender determines, in its sole good faith
discretion, that it has received a refund of any Indemnified Taxes or Other
Taxes as to which it has been indemnified by the Borrower or with respect to
which the Borrower has paid additional amounts pursuant to this Section 2.17,
it shall upon such determination pay over such refund to the Borrower (but only
to the extent of indemnity payments made, or additional amounts paid, by the
Borrower under this Section 2.17 with respect to the Indemnified Taxes or
Other Taxes giving rise to such refund), net of all reasonable out-of-pocket
expenses of the Administrative Agent or such Lender and without interest (other
than any interest paid by the relevant Governmental Authority with respect to
such refund); provided that the Borrower, upon the request of the
Administrative Agent or such Lender, agrees to repay the amount paid over to
the Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent or such Lender in
the event the Administrative Agent or such Lender is required to repay such
refund to such Governmental Authority. 
This Section shall not be construed to require the Administrative
Agent or any Lender to make available its tax returns (or any other information
relating to its taxes which it deems confidential) to the Borrower or any other
Person.


 


SECTION 2.18.  Payments Generally; Pro Rata Treatment;
Sharing of Setoffs.  (a)  The
Borrower shall make each payment required to be made by it hereunder or under
any other Loan Document (whether of principal, interest, fees or reimbursement
of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or
2.17, or otherwise) prior to the time expressly required hereunder or under
such other Loan Document for such payment (or, if no such time is expressly
required, prior to 12:00 noon, New York City time), on the date when due, in
immediately available funds, without set-off or counterclaim.  Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon.  All such payments
shall be made to the Administrative Agent at its offices at Eleven Madison
Avenue, New York, New York, except payments to be made directly to an Issuing
Bank or Swingline Lender as expressly provided herein and except that payments
pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the
Persons entitled thereto and payments pursuant to other Loan Documents shall be
made to the Persons specified therein. 
The Administrative Agent shall distribute any such payments received by
it for the account of any other Person to the appropriate recipient promptly
following receipt thereof.  If any
payment under any Loan Document shall be due on a day that is not a


 


47





















 


Business
Day, the date for payment shall be extended to the next succeeding Business
Day, and, in the case of any payment accruing interest, interest thereon shall
be payable for the period of such extension. 
All payments under each Loan Document shall be made in dollars.


 


(b)                                 If
at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be
applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second,
towards payment of principal and unreimbursed LC Disbursements then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed LC Disbursements then due to such
parties.


 


(c)                                  If
any Lender shall, by exercising any right of set-off or counterclaim or by
taking a credit against the purchase price payable in respect of Collateral
pursuant to Section 5.01 of the Collateral Agreement or otherwise, obtain
payment in respect of any principal of or interest on any of its Revolving Loans,
Term Loans or participations in LC Disbursements or Swingline Loans resulting
in such Lender receiving payment of a greater proportion of the aggregate
amount of its Revolving Loans, Term Loans and participations in LC
Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans, Term Loans and participations in LC Disbursements and
Swingline Loans of other Lenders to the extent necessary so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective
Revolving Loans, Term Loans and participations in LC Disbursements and
Swingline Loans; provided that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment
made by the Borrower pursuant to and in accordance with the express terms of
this Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or participant, other than to the Borrower
or any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply).  The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.


 


(d)                                 Unless
the Administrative Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Administrative Agent for the
account of the Lenders or any Issuing Bank hereunder that the Borrower will not
make such payment, the Administrative Agent may assume that the Borrower has
made


 


48





















 


such payment on such date in accordance herewith and may, in reliance
upon such assumption, distribute to the Lenders or the applicable Issuing Bank,
as the case may be, the amount due.  In
such event, if the Borrower has not in fact made such payment, then each of the
Lenders or each Issuing Bank, as the case may be, severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment
to the Administrative Agent, at the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.


 


(e)                                  If
any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.18(d) or 9.03(c),
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender’s
obligations under such Sections until all such unsatisfied obligations are
fully paid.


 


SECTION 2.19.  Mitigation Obligations; Replacement of
Lenders.  (a)  If any Lender
requests compensation under Section 2.15, or if the Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for
the account of any Lender pursuant to Section 2.17, then such Lender shall
use reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in
the future and (ii) would not subject such Lender to any unreimbursed cost
or expense and would not otherwise be disadvantageous to such Lender.  The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment.


 


(b)                                 If
any Lender requests compensation under Section 2.15, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, or if
any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in Section 9.04),
all its interests, rights and obligations under this Agreement to an assignee
that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent (and
if a Revolving Commitment is being assigned, each Issuing Bank and the
Swingline Lender), which consent shall not unreasonably be withheld, (ii) such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and participations in LC Disbursements and Swingline
Loans, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder, from the assignee (to the extent of such outstanding principal
and accrued interest and fees) or the Borrower (in the case of all


 


49





















 


other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.15 or payments
required to be made pursuant to Section 2.17, such assignment will result
in a material reduction in such compensation or payments.  A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.


 


SECTION 2.20.  Incremental Extensions of Credit.  At any time prior to the Term Loan Maturity
Date, subject to the terms and conditions set forth herein, the Borrower may at
any time and from time to time, by notice to the Administrative Agent
(whereupon the Administrative Agent shall promptly deliver a copy of such
notice to each of the Lenders), request to add additional term loans (the “Incremental
Extensions of Credit”) in minimum principal amounts of $50,000,000; provided
that immediately prior to and after giving effect to any Incremental Facility
Amendment (as defined below), (a) no Default has occurred or is continuing
or shall result therefrom and (b) on a Pro Forma Basis, as of the last day
of the most recently ended fiscal quarter of the Borrower for which financial
statements are available, (i) the Borrower shall be in compliance with the
covenants contained in Sections 6.12 and 6.13 and (ii) the Net Senior
Secured Leverage Ratio shall be less than 2.50 to 1.00.  The Incremental Extensions of Credit (a) shall
be in an aggregate principal amount not exceeding $100,000,000, (b) shall
rank pari  passu in right of payment and right of security in
respect of the Collateral with the Term Loans and (c) other than
amortization, pricing and maturity date, shall have the same terms as the Term
Loans as in effect immediately prior to the effectiveness of the applicable
Incremental Facility Amendment; provided that (i) if the Applicable
Rate (which, for such purposes only, shall be deemed to include all upfront or
similar fees or original issue discount payable to all Lenders providing such
Incremental Extensions of Credit) relating to the Incremental Extensions of
Credit exceeds the Applicable Rate (which, for such purposes only, shall be
deemed to include all upfront or similar fees or original issue discount
payable to all Term Loan Lenders) relating to the Term Loans by more than
0.25%, the Applicable Rate relating to the Term Loans shall be adjusted to be
equal to the Applicable Rate (which, for such purposes only, shall be deemed to
include all upfront or similar fees or original issue discount payable to all
Lenders providing such Incremental Extensions of Credit) relating to the
applicable Incremental Extensions of Credit minus 0.25%, (ii) the
Incremental Extensions of Credit shall not have a final maturity date earlier
than the Term Loan Maturity Date and (iii) the Incremental Extensions of
Credit shall not have a weighted average life that is shorter than that of the
then-remaining weighted average life of the Term Loans.  No Term Loan Lender shall be obligated to
provide any Incremental Extension of Credit unless it so agrees.  Any additional bank, financial institution,
Term Loan Lender or other Person that elects to extend Incremental Extensions
of Credit shall be reasonably satisfactory to the Borrower and the
Administrative Agent (any such bank, financial institution, Term Loan Lender or
other Person being called an “Additional Lender”) and shall become a
Lender under this Agreement, pursuant to an amendment (an “Incremental
Facility Amendment”) to this Agreement, giving effect to the modifications
permitted by this Section 2.20, and, as appropriate, the other Loan
Documents, executed by the Borrower, each Additional Lender and the
Administrative Agent.  Commitments in
respect of Incremental


 


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Extensions
of Credit shall be Commitments under this Agreement.  An Incremental Facility Amendment may,
without the consent of any other Lenders, effect such amendments to this
Agreement and the other Loan Documents as may be necessary or appropriate, in the
opinion of the Administrative Agent, to effect the provisions of this Section 2.20
(including voting provisions applicable to the Additional Lenders comparable to
the provisions of clause (B) of the second proviso of Section 9.02).  The effectiveness of any Incremental Facility
Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental
Facility Closing Date”) of each of the conditions set forth in Section 4.02
(it being understood that all references to “the date of such Borrowing”
in such Section 4.02 shall be deemed to refer to the Incremental Facility
Closing Date).  The proceeds of the
Incremental Extensions of Credit shall be used to make Permitted Acquisitions
or to repay outstanding Revolving Loans.


 


ARTICLE III


 


Representations and
Warranties


 


Each of Holdings and the
Borrower represents and warrants to the Lenders that:


 


SECTION 3.01.  Organization; Powers.  Each of Holdings, the Borrower and the
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to own or lease its properties and to carry on its business as
currently conducted and, except where the failure to do so, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.


 


SECTION 3.02.  Authorization; Enforceability.  The Transactions to be entered into by each
Loan Party are within such Loan Party’s powers and have been duly authorized by
all necessary company and, if required, stockholder or member action.  This Agreement has been duly executed and
delivered by Holdings and the Borrower and constitutes, and each other Loan
Document to which any Loan Party is to be a party, when executed and delivered
by such Loan Party, will constitute, a legal, valid and binding obligation of
the Borrower or such Loan Party (as the case may be), enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors’ rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.


 


SECTION 3.03.  Governmental Approvals; No Conflicts.  The Transactions (a) do not require any
material consent or approval of, registration or filing with, or any other
action by, any Governmental Authority, except such as have been obtained or
made and are in full force and effect and except filings necessary to perfect
Liens created under the Loan Documents, (b) will not violate any material
applicable law or regulation or the charter, by-laws or other organizational
documents of Holdings, the Borrower or any Subsidiary or any material order of
any Governmental Authority, (c)


 


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will
not violate or result in a default under any indenture, agreement or other
instrument binding upon Holdings, the Borrower or any Subsidiary or its assets,
or give rise to a right thereunder to require any payment to be made to
Holdings, the Borrower or any of the Subsidiaries, and (d) will not result
in the creation or imposition of any Lien on any asset of Holdings, the
Borrower or any of the Subsidiaries, except Liens created under the Loan
Documents.


 


SECTION 3.04.  Financial Condition; No Material Adverse
Change.  (a)The Borrower has
heretofore furnished to the Lenders (i) its consolidated balance sheet as
of December 27, 2002 and December 26, 2003, (ii) its
consolidated statements of income, stockholders’ equity and cash flows for the
fiscal years ended December 28, 2001, December 27, 2002 and December 26,
2003, in the case of clauses (i) and (ii), reported on by Deloitte &
Touche LLP, independent public accountants, and (iii) its consolidated
balance sheet and consolidated statements of income, stockholders’ equity and
cash flows as of and for the fiscal quarter and nine-month period ended September 24,
2004 (and the comparable period for the prior fiscal year), as reviewed by
Deloitte & Touche LLP, independent public accountants, in accordance
with Statement on Auditing Standards No.  100 and certified by the chief
financial officer of the Borrower.  Such
financial statements present fairly, in all material respects, the financial
position and results of operations and cash flows of the Borrower and the
Subsidiaries, on a consolidated basis, as of such dates and for such periods in
accordance with GAAP, subject to year-end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (iii) above.


 


(b)                                 The
Borrower has heretofore furnished to the Lenders its pro forma consolidated
balance sheet as of September 24, 2004, prepared giving effect to the
Transactions as if the Transactions had occurred on such date.  Such pro forma consolidated balance sheet (i) has
been prepared in good faith based on the same assumptions used to prepare the
pro forma financial statements included in the Information Memorandum (which
assumptions are believed by the Borrower to be reasonable), (ii) is based
on the best information available to the Borrower after due inquiry, (iii) accurately
reflects all adjustments necessary to give effect to the Transactions and (iv) presents
fairly, in all material respects, the pro forma financial position of the
Borrower and the Subsidiaries, on a consolidated basis, as of the Restatement
Effective Date as if the Transactions had occurred on such date.


 


(c)                                  Except
as disclosed in the financial statements referred to above or the notes thereto
or in the Information Memorandum and except for the Disclosed Matters, after
giving effect to the Transactions, none of Holdings, the Borrower or the
Subsidiaries has, as of the Restatement Effective Date, any material contingent
liabilities, unusual long-term commitments or unrealized losses.


 


(d)                                 Since
December 27, 2002, there has been no material adverse change in the
condition (financial or otherwise), assets, operations or business of Holdings,
the Borrower and the Subsidiaries, taken as a whole.


 


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SECTION 3.05.  Properties.  (a)  Each of Holdings, the Borrower and
the Subsidiaries has good title to, or valid leasehold interests in, all the
real and personal property material to its business (including its Mortgaged
Properties), except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.


 


(b)                                 Each
of Holdings, the Borrower and the Subsidiaries owns, or is licensed to use, all
trademarks, tradenames, copyrights, patents and other intellectual property
material to its business, and, to the knowledge of Holdings or the Borrower,
the use thereof by Holdings, the Borrower and the Subsidiaries does not
infringe upon the rights of any other Person, except for any such infringements
that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.


 


(c)                                  Schedule 3.05
sets forth the address of each real property that is owned or leased by
Holdings, the Borrower or any of the Subsidiaries as of the Restatement
Effective Date after giving effect to the Transactions.


 


(d)                                 As
of the Restatement Effective Date, none of Holdings, the Borrower or any of the
Subsidiaries has received notice of, or has knowledge of, any pending or
contemplated condemnation proceeding affecting any Mortgaged Property or any
Specified Property or any sale or disposition thereof in lieu of condemnation.  Neither any Mortgaged Property or any
Specified Property nor any interest therein is subject to any right of first
refusal, option or other contractual right to purchase such Mortgaged Property
or Specified Property or interest therein.


 


SECTION 3.06.  Litigation and Environmental Matters.  (a)  There are no actions, suits or
proceedings by or before any arbitrator or Governmental Authority pending
against or, to the knowledge of Holdings or the Borrower, threatened against or
affecting Holdings, the Borrower or any Subsidiary (i) as to which there
is a reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect (other than the Disclosed Matters) or (ii) that
involve any of the Loan Documents or the Transactions.


 


(b)                                 Except
for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, none of Holdings, the Borrower or any Subsidiary (i) has
failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental
Law, (ii) has become subject to any Environmental Liability, (iii) has
received notice of any claim with respect to any Environmental Liability or (iv) knows
of any basis for any Environmental Liability.


 


SECTION 3.07.  Compliance with Laws and Agreements.  Each of Holdings, the Borrower and the
Subsidiaries is in compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except


 


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where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.  No Default has occurred and is continuing.


 


SECTION 3.08.  Investment and Holding Company Status.  None of Holdings, the Borrower or any of the
Subsidiaries is (a) an “investment company” as defined in, or subject to
regulation under, the Investment Company Act of 1940 or (b) a “holding
company” as defined in, or subject to regulation under, the Public Utility
Holding Company Act of 1935.


 


SECTION 3.09.  Taxes. 
Each of Holdings, the Borrower and the Subsidiaries has timely filed or
caused to be filed all Tax returns and reports required to have been filed and
has paid or caused to be paid all Taxes required to have been paid by it,
except (a) any Taxes that are being contested in good faith by appropriate
proceedings and for which Holdings, the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves to the extent required
by GAAP or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.


 


SECTION 3.10.  ERISA. 
No ERISA Event has occurred or is reasonably expected to occur that, when
taken together with all other such ERISA Events for which liability is
reasonably expected to result, could reasonably be expected to result in an
unsatisfied liability of Holdings, the Borrower and the Subsidiaries in an
aggregate amount exceeding $5,000,000 for all periods.  The present value of all accumulated benefit
obligations under all Plans (based on the assumptions used by such Plan for
purposes of Statement of Financial Accounting Standards No. 87) did not,
as of the date of the most recent financial statements reflecting such amounts,
exceed the fair market value of the assets of such Plan by an amount greater
than $5,000,000.  The minimum funding
standards of ERISA and the Code with respect to each Plan have been satisfied.


 


SECTION 3.11.  Disclosure.  The Borrower has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which Holdings,
the Borrower or any of the Subsidiaries is subject, and all other matters known
to any of them, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect.  Neither the Information Memorandum nor any of
the other reports, financial statements, certificates or other information
furnished by or on behalf of any Loan Party to the Administrative Agent or any
Lender in connection with the negotiation of this Agreement or any other Loan
Document or delivered hereunder or thereunder (as modified or supplemented by
other information so furnished) contains any material misstatement of fact or
omits to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading; provided
that, with respect to projected financial information, Holdings and the
Borrower represent only that such information was prepared in good faith based
upon assumptions believed by it to be reasonable at the time.


 


SECTION 3.12.  Subsidiaries.  Holdings does not have any subsidiaries other
than the Borrower and the Subsidiaries.  Schedule 3.12
sets forth the name of, and


 


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the
ownership interest of the Borrower in, each Subsidiary and identifies each
Subsidiary that is a Subsidiary Loan Party, in each case as of the Restatement
Effective Date.


 


SECTION 3.13.  Insurance.  Schedule 3.13 sets forth a description
of all insurance maintained by or on behalf of Holdings, the Borrower and the
Subsidiaries as of the Restatement Effective Date.  As of the Restatement Effective Date, all
premiums in respect of such insurance have been paid.  The Borrower believes that the insurance
maintained by or on behalf of Holdings, the Borrower and the Subsidiaries is
adequate.


 


SECTION 3.14.  Labor Matters.  As of the Restatement Effective Date, there
are no strikes, lockouts or slowdowns against Holdings, the Borrower or any
Subsidiary pending or, to the knowledge of the Borrower, threatened.  The hours worked by and payments made to
employees of Holdings, the Borrower and the Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Federal,
state, local or foreign law dealing with such matters.  All payments due from Holdings, the Borrower
or any Subsidiary, or for which any claim may be made against Holdings, the
Borrower or any Subsidiary, on account of wages and employee health and welfare
insurance and other benefits, have been paid or accrued as a liability on the
books of Holdings, the Borrower or such Subsidiary.  The consummation of the Transactions will not
give rise to any right of termination or right of renegotiation on the part of
any union under any collective bargaining agreement to which Holdings, the
Borrower or any Subsidiary is bound.


 


SECTION 3.15.  Solvency.  Immediately after the consummation of the
Transactions to occur on the Restatement Effective Date and immediately
following the making of each Loan made on the Restatement Effective Date and
after giving effect to the application of the proceeds of such Loans, (a) the
fair value of the assets of each Loan Party, at a fair valuation, will exceed
its debts and liabilities, subordinated, contingent or otherwise; (b) the
present fair saleable value of the property of each Loan Party will be greater
than the amount that will be required to pay the probable liability of its
debts and other liabilities, subordinated, contingent or otherwise, as such
debts and other liabilities become absolute and matured; (c) each Loan
Party will be able to pay its debts and liabilities, subordinated, contingent
or otherwise, as such debts and liabilities become absolute and matured; and (d) each
Loan Party will not have unreasonably small capital with which to conduct the
business in which it is engaged as such business is currently conducted and is
proposed to be conducted following the Restatement Effective Date.


 


SECTION 3.16.  Senior Indebtedness; Designated Senior
Indebtedness.  The Obligations
constitute “Senior Indebtedness” and “Designated Senior Indebtedness” under and
as defined in the Senior Subordinated Debt Documents and the Subordinated
Promissory Note (and to the extent any Additional Senior Subordinated Notes are
issued, the documents governing the Additional Senior Subordinated Notes).


 


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ARTICLE IV


 


Conditions


 


SECTION 4.01.  [Intentionally Omitted.]


 


SECTION 4.02.  Each Credit Event.  The obligation of each Lender to make a Loan
on the occasion of any Borrowing, and of any Issuing Bank to issue, amend,
renew or extend any Letter of Credit, is subject to receipt of the request
therefor in accordance herewith and to the satisfaction of the following
conditions:


 


(a)                                  The
representations and warranties of each Loan Party set forth in the Loan
Documents shall be true and correct in all material respects on and as of the date
of such Borrowing or the date of issuance, amendment, renewal or extension of
such Letter of Credit, except to the extent such representations and warranties
expressly relate to an earlier date, as applicable.


 


(b)                                 At
the time of and immediately after giving effect to such Borrowing or the
issuance, amendment, renewal or extension of such Letter of Credit, as
applicable, no Default shall have occurred and be continuing.


 


Each Borrowing and each issuance, amendment, renewal
or extension of a Letter of Credit shall be deemed to constitute a
representation and warranty by Holdings and the Borrower on the date thereof as
to the matters specified in paragraphs (a) and (b) of this Section.


 


ARTICLE V


 


Affirmative
Covenants


 


Until the Commitments
have expired or been terminated and the principal of and interest on each Loan
and all fees payable hereunder shall have been paid in full and all Letters of
Credit shall have expired or terminated and all LC Disbursements shall have
been reimbursed, each of Holdings and the Borrower covenants and agrees with
the Lenders that:


 


SECTION 5.01.  Financial Statements and Other Information.  Holdings and the Borrower will furnish to the
Administrative Agent and each Lender through the Administrative Agent:


 


(a)                                  within
90 days (or such shorter period as the SEC shall specify for the filing of
annual reports on Form 10-K) after the end of each fiscal year of
the Borrower, a copy of its audited consolidated balance sheet and related
statements of operations, stockholders’ equity and cash flows as of the end of
and for such year, setting forth in each case in comparative form the figures
as of the end of and for the previous fiscal year, all reported on by Deloitte
and Touche LLP or other independent public accountants of recognized national
standing (without a


 


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“going concern” or like
qualification or exception and without any qualification or exception as to the
scope of such audit) to the effect that such consolidated financial statements
present fairly in all material respects the financial condition and results of
operations of the Borrower and the Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;


 


(b)                                 within
45 days (or such shorter period as the SEC shall specify for the filing of
quarterly reports on Form 10-Q) after the end of each of the first
three fiscal quarters of each fiscal year of the Borrower, its consolidated
balance sheet and related statements of operations, stockholders’ equity and
cash flows as of the end of and for such fiscal quarter and the then elapsed
portion of such fiscal year, setting forth in each case in comparative form the
figures for the corresponding period or periods of (or, in the case of the
balance sheet, as of the end of) the previous fiscal year, all certified by a
Financial Officer as presenting fairly in all material respects the financial
condition and results of operations of the Borrower and the Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes; provided
that the foregoing shall not apply if the Borrower is required to file periodic
reports pursuant to the Securities Exchange Act of 1934, as amended, and has
filed a quarterly report on Form 10-Q with the SEC, which report
shall be furnished to the Administrative Agent promptly following such filing;


 


(c)                                  concurrently
with any delivery of financial statements under clause (a) or (b) above,
a certificate of a Financial Officer (i) certifying as to whether a
Default has occurred and, if a Default has occurred, specifying the details
thereof and any action taken or proposed to be taken with respect thereto, (ii) setting
forth reasonably detailed calculations demonstrating whether there has been
compliance with Sections 6.12, 6.13 and 6.14 and (iii) stating whether any
change in GAAP or in the application thereof has occurred since the date of the
Borrower’s audited financial statements referred to in Section 3.04 and,
if any such change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate;


 


(d)                                 concurrently
with any delivery of financial statements under clause (a) above, a
certificate of the accounting firm that reported on such financial statements
stating whether they obtained knowledge during the course of their examination
of such financial statements of any Default and, if such knowledge has been
obtained, describing such Default (which certificate may be limited to the
extent required by accounting rules or guidelines);


 


(e)                                  within
30 days after the commencement of each fiscal year of the Borrower commencing
with the fiscal year 2006, a detailed consolidated budget for such fiscal year
(including a projected consolidated balance sheet and related statements of
projected operations and cash flows as of the end of and for such fiscal year
and setting forth the assumptions used for purposes of preparing such budget)
and, promptly when available, any significant revisions of such budget;


 


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(f)                                    promptly
after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by Holdings, the Borrower
or any Subsidiary with the SEC, or with any national securities exchange, as
the case may be; and


 


(g)                                 promptly
following any request therefor, such other information regarding the
operations, business affairs and financial condition of the Borrower or any Subsidiary,
or compliance with the terms of any Loan Document, as the Administrative Agent
or any Lender may reasonably request.


 


SECTION 5.02.  Notices of Material Events.  Holdings and the Borrower will furnish to the
Administrative Agent and each Lender through the Administrative Agent prompt
written notice of the following:


 


(a)                                  the
occurrence of any Default;


 


(b)                                 the
filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting Holdings, the
Borrower or any Affiliate thereof that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;


 


(c)                                  the
occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in an
unsatisfied liability of Holdings, the Borrower and the Subsidiaries in an
aggregate amount exceeding $250,000; and


 


(d)                                 any
other development that results in, or could reasonably be expected to result
in, a Material Adverse Effect.


 


Each notice delivered under this Section shall be
accompanied by a statement of a Financial Officer or other executive officer of
the Borrower setting forth the details of the event or development requiring
such notice and any action taken or proposed to be taken with respect thereto.


 


SECTION 5.03.  Information Regarding Collateral.  (a)  Holdings and the Borrower will
furnish to the Administrative Agent prompt written notice of any change (i) in
any Loan Party’s name, (ii) in the jurisdiction of incorporation or
organization of any Loan Party, (iii) in any office in which any Loan
Party maintains books or records relating to Collateral owned by it, or (iv) in
any Loan Party’s organizational identification number.  Holdings and the Borrower also agree to
promptly provide the Administrative Agent with certified organizational
documents reflecting any of the changes described in the preceding
sentence.  Holdings and the Borrower
agree not to effect or permit any change referred to in the preceding sentence
unless all filings have been made under the Uniform Commercial Code or
otherwise that are required in order for the Administrative Agent, for the
benefit of the Lenders, to continue at all times following such change to have
a valid, legal and perfected security interest in all the Collateral.  The Borrower also


 


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agrees
promptly to notify the Administrative Agent if any material portion of the
Collateral is damaged or destroyed.


 


(b)                                 Each
year, at the time of delivery of annual financial statements with respect to
the preceding fiscal year pursuant to clause (a) of Section 5.01, the
Borrower shall deliver to the Administrative Agent a certificate of a Financial
Officer and the chief legal officer of the Borrower (i) setting forth the
information required pursuant to the Perfection Certificate or confirming that
there has been no change in such information since the date of the Perfection
Certificate delivered on the Original Closing Date (as updated on the
Restatement Effective Date) or the date of the most recent certificate
delivered pursuant to this Section and (ii) certifying that all
Uniform Commercial Code financing statements (including fixture filings, as
applicable) or other appropriate filings, recordings or registrations,
including all refilings, rerecordings and reregistrations, containing a
description of the Collateral have been filed of record in each governmental,
municipal or other appropriate office in each jurisdiction identified pursuant
to clause (i) above to the extent necessary to protect and perfect the
security interests under the Collateral Agreement for a period of not less than
18 months after the date of such certificate (except as noted therein with
respect to any continuation statements to be filed within such period).  Each certificate delivered pursuant to this Section 5.03(b) shall
identify in the format of Schedule III to the Collateral Agreement all
Intellectual Property (as defined in the Collateral Agreement) in existence on
the date thereof and then not listed on such Schedule or previously so
identified.


 


SECTION 5.04.  Existence; Conduct of Business.  Each of Holdings and the Borrower will, and
will cause each of the Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges, franchises, patents,
copyrights, trademarks and trade names material to the conduct of its business;
provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.03.


 


SECTION 5.05.  Payment of Obligations.  Each of Holdings and the Borrower will, and
will cause each of the Subsidiaries to, pay its Material Indebtedness and other
material obligations, including Tax liabilities, on or before the time that the
same shall become delinquent or in default, except where (a) the validity
or amount thereof is being contested in good faith by appropriate proceedings, (b) Holdings,
the Borrower or such Subsidiary has set aside on its books adequate reserves
with respect thereto to the extent required by GAAP, (c) such contest
effectively suspends collection of the contested obligation and the enforcement
of any Lien securing such obligation and (d) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.


 


SECTION 5.06.  Maintenance of Properties.  Each of Holdings and the Borrower will, and
will cause each of the Subsidiaries to, keep and maintain all property material
to the conduct of its business in good working order and condition, ordinary
wear and tear excepted.


 


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SECTION 5.07.  Insurance.  Each of Holdings and the Borrower will, and
will cause each of the Subsidiaries to, maintain, with financially sound and
reputable insurance companies (a) insurance in such amounts (with no
greater risk retention) and against such risks as are customarily maintained by
companies of established repute engaged in the same or similar businesses
operating in the same or similar locations and (b) all insurance required
to be maintained pursuant to the Security Documents.  The Borrower will furnish to the
Administrative Agent, promptly following its request, information in reasonable
detail as to the insurance so maintained.


 


SECTION 5.08.  Casualty and Condemnation.  The Borrower (a) will furnish to the
Administrative Agent and each Lender, through the Administrative Agent, prompt
written notice of any casualty or other insured damage to any material portion
of the Collateral or the commencement of any action or proceeding for the
taking of any material portion of the Collateral or interest therein under
power of eminent domain or by condemnation or similar proceeding and (b) will
ensure that the Net Proceeds of any such event (whether in the form of
insurance proceeds, condemnation awards or otherwise) are collected and applied
in accordance with the applicable provisions of the Security Documents.


 


SECTION 5.09.  Books and Records; Inspection and Audit
Rights.  Each of Holdings and the
Borrower will, and will cause each of the Subsidiaries to, keep proper books of
record and account in which full, true and correct entries are made of all
dealings and transactions in relation to its business and activities.  Each of Holdings and the Borrower will, and
will cause each of the Subsidiaries to, permit any representatives designated
by the Administrative Agent or any Lender, upon reasonable prior notice, to
visit and inspect its properties during normal business hours, to examine and
make extracts from its books and records, and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such
reasonable times and as often as reasonably requested.


 


SECTION 5.10.  Compliance with Laws.  Each of Holdings and the Borrower will, and
will cause each of the Subsidiaries to, comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to it or its
property, including Environmental Laws, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.


 


SECTION 5.11.  Use of Proceeds and Letters of Credit.  The proceeds of the Revolving Loans will be
used only for general corporate purposes in the ordinary course of the Borrower’s
business, including Permitted Acquisitions; provided that no more than
$70,000,000 of Revolving Loans may be used to effect Permitted Acquisitions as
provided in Section 6.04(a).  The
proceeds of the Swingline Loans will be used only for general corporate
purposes in the ordinary course of the Borrower’s business.  No part of the proceeds of any Loan and no
Letter of Credit will be used, whether directly or indirectly, for any purpose
that entails a violation of any of the Regulations of the Board, including
Regulations T, U and X.  Letters of
Credit will be issued only for general corporate purposes.


 


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SECTION 5.12.  Additional Subsidiaries.  If any additional Subsidiary is formed or
acquired after the Restatement Effective Date, the Borrower will, within three
Business Days after such Subsidiary is formed or acquired, notify the
Administrative Agent and the Lenders (through the Administrative Agent) thereof
and cause the Collateral and Guarantee Requirement to be satisfied with respect
to such Subsidiary (if it is a Subsidiary Loan Party) and with respect to any
Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of
any Loan Party (except for Equity Interests in any Foreign Subsidiary other
than up to 65% of the outstanding voting Equity Interests and 100% of the
nonvoting Equity Interests of a Foreign Subsidiary that is owned directly by a
Loan Party).


 


SECTION 5.13.  Further Assurances.  (a)  Each of Holdings and the Borrower
will, and will cause each Subsidiary Loan Party to, execute any and all further
documents, financing statements, agreements and instruments, and take all such
further actions (including the filing and recording of financing statements,
fixture filings, mortgages, deeds of trust and other documents), which may be
required under any applicable law, or which the Administrative Agent or the
Required Lenders may reasonably request, to cause the Collateral and Guarantee
Requirement to be and remain satisfied, all at the expense of the Loan
Parties.  The Borrower also agrees to
provide to the Administrative Agent, from time to time upon reasonable request,
evidence reasonably satisfactory to the Administrative Agent as to the
perfection and priority of the Liens created or intended to be created by the
Security Documents.


 


(b)                                 If
any material assets (including any owned real property or improvements thereon
or any interest therein) are acquired by the Borrower or any Subsidiary Loan
Party after the Restatement Effective Date (other than assets constituting
Collateral under the Collateral Agreement that become subject to the Lien of the
Collateral Agreement upon acquisition thereof), the Borrower will, within five
Business Days after such material asset is acquired, notify the Administrative
Agent and the Lenders (through the Administrative Agent) thereof, and, if
requested by the Administrative Agent or the Required Lenders, the Borrower
will cause such assets to be subjected to a Lien securing the Obligations and
will take, and cause the Subsidiary Loan Parties to take, such actions as shall
be necessary or reasonably requested by the Administrative Agent to grant and
perfect such Liens, including actions described in paragraph (a) of this
Section, all at the expense of the Loan Parties; provided that owned
real property or improvements thereon acquired by the Borrower or any
Subsidiary Loan Party after the Restatement Effective Date shall not be
required to be subjected to a Lien securing the Obligations unless the book
value or market value of such real property and improvements is greater than
$5,000,000.


 


ARTICLE VI


 


Negative Covenants


 


Until the Commitments
have expired or been terminated and the principal of and interest on each Loan
and all fees payable hereunder shall have been paid in full and all Letters of
Credit shall have expired or terminated and all LC Disbursements shall


 


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have been reimbursed,
each of the Holdings and the Borrower covenants and agrees with the Lenders
that:


 


SECTION 6.01.  Indebtedness; Certain Equity Securities.  (a)  Neither Holdings nor the Borrower
will, nor will they permit any Subsidiary to, create, incur, assume or permit
to exist any Indebtedness, except:


 


(i)                                     Indebtedness
created under the Loan Documents;


 


(ii)                                  in
the case of the Borrower, the Senior Subordinated Notes in an aggregate
principal amount not to exceed (x) $200,000,000 less (y) the aggregate
principal amount of Senior Subordinated Notes redeemed, repurchased or retired
pursuant to Section 6.08 (and extensions, renewals and replacements of any
such Senior Subordinated Notes that do not increase the outstanding principal
amount thereof or result in an earlier maturity date or decreased weighted
average life thereof and that do not have terms less favorable to the Lenders
and the Borrower than the Senior Subordinated Notes);


 


(iii)                               Indebtedness
existing on the Original Closing Date (other than the Senior Subordinated
Notes) and set forth in Schedule 6.01 and extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof or result in an earlier maturity date or decreased
weighted average life thereof;


 


(iv)                              Indebtedness
of the Borrower to Holdings or any Subsidiary and of any Subsidiary to
Holdings, the Borrower or any other Subsidiary; provided that (A) Indebtedness
of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary
Loan Party shall be subject to Section 6.04 and (B) Indebtedness of
the Borrower to any Subsidiary and Indebtedness of any Subsidiary Loan Party to
any Subsidiary that is not a Subsidiary Loan Party shall be subordinated to the
Obligations on terms reasonably satisfactory to the Administrative Agent;


 


(v)                                 Guarantees
by Holdings, the Borrower of Indebtedness of any Subsidiary and by any
Subsidiary of Indebtedness of the Borrower or any other Subsidiary; provided
that (A) the Indebtedness so guaranteed is permitted by this Section, (B) Guarantees
by Holdings, the Borrower or any Subsidiary Loan Party of Indebtedness of any
Subsidiary that is not a Loan Party shall be subject to Section 6.04 and (C) the
Subordinated Debt shall not be guaranteed by any Subsidiary that is not a
Subsidiary Loan Party and any such Guarantee shall be subordinated to the
Obligations of the applicable Subsidiary on the same terms as the Subordinated
Debt is subordinated to its Obligations;


 


(vi)                              Indebtedness
of the Borrower or any Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including Capital
Lease Obligations (other than Capital Lease Obligations incurred pursuant to
clause (x) of this Section 6.01(a)), and any Indebtedness assumed in
connection with the acquisition of any such assets or secured by a


 


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Lien on any such assets
prior to the acquisition thereof, and extensions, renewals and replacements of
any such Indebtedness that do not increase the outstanding principal amount
thereof or result in an earlier maturity date or decreased weighted average
life thereof; provided that (A) such Indebtedness is incurred prior
to or within 90 days after such acquisition or the completion of such
construction or improvement and (B) the aggregate principal amount of
Indebtedness permitted by this clause (vi) shall not exceed $10,000,000 at
any time outstanding;


 


(vii)                           (A) Indebtedness
of any Person that becomes a Subsidiary after the date hereof, provided
that (1) such Indebtedness exists at the time such Person becomes a
Subsidiary and is not created in contemplation of or in connection with such
Person becoming a Subsidiary and (2) the aggregate principal amount of
Indebtedness permitted by this clause (vii) shall not exceed $15,000,000
at any time outstanding and (B) any refinancings, renewals and
replacements of any such Indebtedness pursuant to the preceding clause (A) that
do not increase the outstanding principal amount thereof or result in an
earlier maturity date or decreased weighted average life thereof;


 


(viii)                        in the
case of the Borrower, (A) the Additional Senior Subordinated Notes; provided
that the proceeds of such Additional Senior Subordinated Notes shall be used (1) if
no Default has occurred and is continuing or would result therefrom, to finance
a Permitted Acquisition pursuant to Section 6.04(a) or (2) to
repay Term Loans and (B) extensions, renewals and replacements of any such
Additional Senior Subordinated Notes that do not increase the outstanding
principal amount thereof or result in an earlier maturity date or decreased
weighted average life thereof and that do not have terms less favorable to the
Lenders and the Borrower than the Additional Senior Subordinated Notes;


 


(ix)                                [Intentionally
Omitted.]


 


(x)                                   Indebtedness
of the Borrower or any Subsidiary consisting of Capital Lease Obligations
incurred in connection with the sale and leaseback transactions relating to the
Specified Properties permitted by Section 6.06(b);


 


(xi)                                the
Subordinated Promissory Note and any pledge of the Equity Interests of Buyers
Access owned by Glenwood Acquisition LLC to secure the Subordinated Promissory
Note;


 


(xii)                             other
unsecured Indebtedness in an aggregate principal amount not exceeding
$20,000,000 at any time outstanding; provided that the aggregate
principal amount of Indebtedness of Subsidiaries that are not Loan Parties
permitted by this clause (xii) shall not exceed $7,500,000 at any time
outstanding; and


 


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(xiii)                          letters
of credit or bank guarantees (other than Letters of Credit issued pursuant to Section 2.05)
having an aggregate face amount not in excess of $10,000,000.


 


(b)                                 Neither
Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue
any preferred Equity Interests other than Qualified Preferred Stock issued to
the Permitted Investors.


 


SECTION 6.02.  Liens. 
Neither Holdings nor the Borrower will, nor will they permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:


 


(a)                                  Liens
created under the Loan Documents;


 


(b)                                 Permitted
Encumbrances;


 


(c)                                  any
Lien on any property or asset of the Borrower or any Subsidiary existing on the
Original Closing Date and set forth in Schedule 6.02; provided that
(i) such Lien shall not apply to any other property or asset of the
Borrower or any Subsidiary and (ii) such Lien shall secure only those
obligations which it secures on the date hereof and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount
thereof;


 


(d)                                 any
Lien existing on any property or asset prior to the acquisition thereof by the
Borrower or any Subsidiary or existing on any property or asset of any Person
that becomes a Subsidiary after the date hereof prior to the time such Person
becomes a Subsidiary; provided that (i) such Lien is not created in
contemplation of or in connection with such acquisition or such Person becoming
a Subsidiary, as the case may be, (ii) such Lien shall not apply to any
other property or assets of the Borrower or any Subsidiary and (iii) such
Lien shall secure only those obligations which it secures on the date of such
acquisition or the date such Person becomes a Subsidiary, as the case may be,
and extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;


 


(e)                                  Liens
on fixed or capital assets acquired, constructed or improved by the Borrower or
any Subsidiary; provided that (i) such security interests secure
Indebtedness permitted by clause (vi) of Section 6.01(a), (ii) such
security interests and the Indebtedness secured thereby are incurred prior to
or within 90 days after such acquisition or the completion of such construction
or improvement, (iii) the Indebtedness secured thereby does not exceed the
cost of acquiring, constructing or improving such fixed or capital assets and (iv) such
security interests shall not apply to any other property or assets of the
Borrower or any Subsidiary;


 


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(f)                                    Liens
that are contractual rights of set-off relating to deposit accounts in favor of
banks and other depositary institutions in the ordinary course of business;


 


(g)                                 Liens
of a collection bank arising in the ordinary course of business under Section 4-210
of the Uniform Commercial Code in effect in the relevant jurisdiction covering
only the items being collected upon;


 


(h)                                 Liens
disclosed on any title insurance policy in respect of a Mortgaged Property
reasonably approved by the Administrative Agent or any Lien of any lessee
reasonably approved by the Administrative Agent;


 


(i)                                     any
Lien arising out of the pledge of the Equity Interests owned by Glenwood
Acquisition LLC in Buyers Access permitted by clause (xi) of Section 6.01(a);


 


(j)                                     any
interest or title of a lessor under any lease entered into by the Borrower and
any Lien arising from precautionary Uniform Commercial Code financing
statements (or equivalent filings, registrations or agreements in foreign
jurisdictions) relating to and covering only equipment leased in accordance
with any Loan Document;


 


(k)                                  Liens
arising out of sale and leaseback transactions relating to the Specified
Properties permitted by Section 6.06(b);


 


(l)                                     Liens
securing obligations in respect of trade-related letters of credit permitted
under Section 6.01(xiii), which Liens shall cover only the goods (or the
documents of title in respect of such goods) financed by such letters of credit
and the proceeds and products thereof; and


 


(m)                               Liens
on inventory to secure trade accounts payable owed to General Electric Company
and its affiliates in the ordinary course of business, provided that (a) such
accounts payable are not overdue and, in any event, are paid within 8 Business
Days after incurrence, (b) the aggregate amount of such accounts payable
that are secured by such Liens and outstanding at any one time shall not exceed
$5,000,000, (c) such Liens are created pursuant to arrangements in
existence on December 17, 2004, or entered into after such date on terms
no less favorable to the Borrower and the Subsidiaries than those in existence
on such date and (d) the inventory subject to such Liens was manufactured
by, or sold under a trade name or trademark used by, General Electric Company
or its affiliates.


 


SECTION 6.03.  Fundamental Changes.  (a)  Neither Holdings nor the Borrower
will, nor will they permit any Subsidiary to, merge into or consolidate with
any other Person, or permit any other Person to merge into or consolidate with
it, or liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto no Default shall have occurred and be
continuing (i) the Borrower may merge with and


 


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into
Holdings, (ii) any Person may merge into the Borrower in a transaction in
which the surviving entity is a Person organized or existing under the laws of
the United States of America, any State thereof or the District of Columbia
and, if such surviving entity is not the Borrower, such Person expressly
assumes, in writing, all of the obligations of the Borrower under the Loan
Documents, (iii) any Person may merge into any Subsidiary in a transaction
in which the surviving entity is a Subsidiary and, if any party to such merger
is a Subsidiary Loan Party, is a Subsidiary Loan Party, and (iv) any
Subsidiary (other than a Subsidiary Loan Party) may liquidate or dissolve if
the Borrower determines in good faith that such liquidation or dissolution is
in the best interests of the Borrower and is not materially disadvantageous to
the Lenders; provided that any such merger involving a Person that is
not a wholly owned Subsidiary immediately prior to such merger shall not be
permitted unless also permitted by Section 6.04.


 


(b)                                 The
Borrower will not, and Holdings and the Borrower will not permit any of the
Subsidiaries to, engage to any material extent in any business other than
businesses of the type conducted by the Borrower and the Subsidiaries on the
Restatement Effective Date and businesses reasonably related thereto.


 


(c)                                  Glenwood
Acquisition LLC will not engage in any business or activity other than the
ownership of Equity Interests in Buyers Access and activities incidental
thereto.  Glenwood Acquisition LLC will
not own or acquire any assets (other than Equity Interests in Buyers Access,
cash and Permitted Investments) or incur any liabilities (other than
liabilities under the Loan Documents, liabilities in respect of Guarantees
permitted by Section 6.01, liabilities imposed by law, including tax
liabilities, and other liabilities incidental to its existence and permitted
business and activities).


 


(d)                                 Holdings
will not engage in any business or activity, or own or acquire any assets or
incur any liabilities, other than in connection with (i) the ownership of
all the outstanding Equity Interests in the Borrower, (ii) the maintenance
of its corporate existence as a public company, (iii) the consummation of
the Transactions (including the payment of customary fees and expenses in
connection therewith), (iv) the performance of its obligations under and
in connection with the Loan Documents, (v) the consummation of any
offering of its Equity Interests permitted under the terms of this Agreement
(including the payment of customary fees and expenses in connection therewith),
(vi) the ordinary course grant of common stock to employees and directors
pursuant to the terms of any employee benefit or stock option plan; provided
that, in the event of any merger of the Borrower and Holdings pursuant to
clause (a) above, Holdings may engage in the activities permitted under
clause (b) above and (vii) investments in its subsidiaries as
permitted by Section 6.01 and Section 6.04.


 


SECTION 6.04.  Investments, Loans, Advances, Guarantees
and Acquisitions.  Neither Holdings
or the Borrower will, nor will they permit any of the Subsidiaries to,
purchase, hold or acquire (including pursuant to any merger with any Person
that was not a wholly owned Subsidiary prior to such merger) any Equity
Interests in or evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, Guarantee any obligations of, or make
or permit to exist any investment or any other


 


66





















 


interest
in, any other Person, or purchase or otherwise acquire (in one transaction or a
series of transactions) any assets of any other Person constituting a business
unit, except:


 


(a)                                  Permitted
Acquisitions; provided that the aggregate cash consideration paid or
required to be paid by the Borrower or a wholly owned Subsidiary in connection
with each Permitted Acquisition does not exceed the sum of (A) Retained
Excess Cash Flow for the fiscal year ended immediately prior to the date of
such Permitted Acquisition (to the extent not previously applied to repurchase
Subordinated Debt, to make Permitted Acquisitions or to make Capital
Expenditures), plus (B) cash generated in the ordinary course of the
business of the Borrower and the Subsidiaries, plus (C) the Net Proceeds
from any issuance of Equity Interests of Holdings (other than in connection
with the Initial Public Offering) during the period of four consecutive fiscal
quarters ended immediately prior to the date of such Permitted Acquisition (to
the extent not previously applied to repurchase Subordinated Debt, to make
Permitted Acquisitions, to make Capital Expenditures or to make investments
under Section 6.04(m)), plus (D) (i) borrowings under the
Revolving Facility in an amount equal to (x) $70,000,000, minus (y) the
aggregate principal amount of Revolving Loans outstanding immediately prior to
the date of such Permitted Acquisition the proceeds of which were applied
previously to finance Permitted Acquisitions, plus (E) the proceeds from
any Incremental Extensions of Credit (to the extent not previously applied to
make Permitted Acquisitions or to prepay Revolving Loans), plus (F) in the
event that, on a Pro Forma Basis as of the last day of most recently ended
fiscal quarter of the Borrower for which financial statements are available,
the Net Leverage Ratio is more than 0.25 below the maximum permitted Net
Leverage Ratio as of the end of such fiscal quarter, as set forth in Section 6.13,
the Net Proceeds of Additional Senior Subordinated Notes;


 


(b)                                 Permitted
Investments;


 


(c)                                  investments
existing on the Original Closing Date and set forth on Schedule 6.04;


 


(d)                                 investments
by Holdings, the Borrower and the Subsidiaries in Equity Interests in their
respective subsidiaries; provided that (i) any such Equity
Interests held by a Loan Party shall be pledged pursuant to the Collateral
Agreement (subject to the limitations applicable to Equity Interests of a
Foreign Subsidiary or a Joint Venture referred to in the definition of the term
“Collateral and Guarantee Requirement”) and (ii) the aggregate amount of
investments by Loan Parties in, and loans and advances by Loan Parties to, and
Guarantees by Loan Parties of Indebtedness of, Subsidiaries that are not Loan
Parties (including all such investments, loans, advances and Guarantees
existing on the Restatement Effective Date) shall not exceed $7,500,000 at any
time outstanding;


 


(e)                                  loans
or advances made by Holdings or the Borrower to any Subsidiary and made by any
Subsidiary to the Borrower or any other Subsidiary; provided that (i) any
such loans and advances made by a Loan Party shall be


 


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evidenced by a promissory
note pledged pursuant to the Collateral Agreement and (ii) the amount of
such loans and advances made by Loan Parties to Subsidiaries that are not Loan
Parties shall be subject to the limitation set forth in clause (d)(ii) above;


 


(f)                                    Guarantees
constituting Indebtedness permitted by Section 6.01; provided that (i) a
Subsidiary shall not Guarantee the Subordinated Debt unless (A) such
Subsidiary also has Guaranteed the Obligations pursuant to the Collateral
Agreement and (B) such Guarantee of the Subordinated Debt is subordinated
to such Guarantee of the Obligations on terms no less favorable to the Lenders
than the subordination provisions of the Subordinated Debt and (ii) the
aggregate principal amount of Indebtedness of Subsidiaries that are not Loan
Parties that is Guaranteed by any Loan Party shall be subject to the limitation
set forth in clause (d)(ii) above;


 


(g)                                 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;


 


(h)                                 receivables
owing to the Borrower or a Subsidiary if created or acquired in the ordinary
course of business and payable or dischargeable in accordance with customary
trade terms; provided that such trade terms may include such
concessionary trade terms as the Borrower or any such Subsidiary deems
reasonable under the circumstances;


 


(i)                                     investments
consisting of Equity Interests, obligations, securities or other property
received in settlement of delinquent accounts in the ordinary course of business
and owing to the Borrower or any Subsidiary or in satisfaction of judgments;


 


(j)                                     investments
in payroll, travel and similar advances to cover matters that are expected at
the time of such advances ultimately to be treated as expenses for accounting
purposes and that are made in the ordinary course of business;


 


(k)                                  loans
or advances to employees made in the ordinary course of business of the
Borrower or a Subsidiary not exceeding $1,000,000 in the aggregate outstanding
at any one time;


 


(l)                                     investments
in the form of Swap Agreements permitted under Section 6.07;


 


(m)                               investments
by the Borrower or any Subsidiary financed with the Net Proceeds from any
issuance of Equity Interests of Holdings during the period of four consecutive
fiscal quarters ended immediately prior to the date of such investment (to the
extent not previously applied to repurchase Subordinated Debt, to make
Permitted Acquisitions, to make Capital Expenditures or to make investments
under this clause (m)); and


 


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(n)                                 other
investments in an aggregate amount, as valued at cost at the time each such
investment is made, not exceeding $20,000,000 in the aggregate for all such
investments made from and after the Restatement Effective Date plus an amount
equal to any repayments, interest, returns, profits, distributions, income and
similar amounts actually received in cash in respect of any such investment
(which amount shall not exceed the amount of such investment valued at cost at
the time such investment was made).


 


SECTION 6.05.  Asset Sales.  Neither Holdings nor the Borrower will, nor
will they permit any of the Subsidiaries to, sell, transfer, lease or otherwise
dispose of any asset, including any Equity Interest owned by it, nor will
Holdings or the Borrower permit any Subsidiary to issue any additional Equity
Interest in such Subsidiary (other than to the Borrower or another Subsidiary
in compliance with Section 6.04), except:


 


(a)                                  sales,
transfers and dispositions of inventory, used, obsolete, worn out or surplus
equipment or property and Permitted Investments in the ordinary course of
business;


 


(b)                                 sales,
transfers and dispositions to the Borrower or a Subsidiary; provided
that any such sales, transfers or dispositions involving a Subsidiary that is
not a Loan Party shall be made in compliance with Section 6.09;


 


(c)                                  sales,
transfers and dispositions of the Specified Properties;


 


(d)                                 sales,
transfers and dispositions of accounts receivable in connection with the
compromise, settlement or collection thereof;


 


(e)                                  sales,
transfers and dispositions of investments permitted by Section 6.04(g);


 


(f)                                    within
360 days after the consummation of a Permitted Acquisition, the sale, transfer
or disposition of assets acquired in connection with such Permitted Acquisition
and not required in the operation of the business of the Borrower or any of the
Subsidiaries;


 


(g)                                 sales,
transfers and dispositions of Equity Interests in Buyers Access in accordance
with the terms of the Buyers Access Operating Agreement;


 


(h)                                 sales,
transfers and other dispositions of assets (other than Equity Interests in a
Subsidiary unless 100% of such Subsidiary) that are not permitted by any other
clause of this Section; provided that the aggregate fair market value of
all assets sold, transferred or otherwise disposed of in reliance upon this
clause (d) shall not exceed $2,500,000 during any fiscal year of the
Borrower;


 


(i)                                     sales,
transfers and dispositions of individual or groups of related assets with a
fair value of less than $500,000; provided that sales, transfers and
dispositions of individual or groups of related assets pursuant to this clause
(i)


 


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shall not exceed
$10,000,000 in the aggregate during the term of this Agreement; and


 


(j)                                     sales
of a non-core line of business for a purchase price not to exceed $10,000,000; provided
that sales of non-core lines of business pursuant to this clause (j) shall not
exceed $25,000,000 in the aggregate during the term of this Agreement.


 


provided that all sales, transfers,
leases and other dispositions permitted hereby (other than those permitted by
clauses (b), (d) and (i) above) shall be made for fair value and for
at least 80% cash consideration.


 


SECTION 6.06.  Sale and Leaseback Transactions.  Neither Holdings nor the Borrower will, and
nor will they permit any of the Subsidiaries to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereafter
acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property
sold or transferred, except for (a) any such sale of any fixed or capital
assets that is made for cash consideration in an amount not less than the cost
of such fixed or capital asset and is consummated within 90 days after
Holdings, the Borrower or such Subsidiary acquires or completes the
construction of such fixed or capital asset and (b) any transaction
involving the Specified Properties.


 


SECTION 6.07.  Swap Agreements.  Neither Holdings nor the Borrower will, and
nor will they permit any of the Subsidiaries to, enter into any Swap Agreement,
except (a) Swap Agreements entered into to hedge or mitigate risks to
which Holdings, the Borrower or any Subsidiary has actual exposure (other than
those in respect of Equity Interests of Holdings, the Borrower or any of the
Subsidiaries) and (b) Swap Agreements entered into in order to effectively
cap, collar or exchange interest rates (from fixed to floating rates, from one
floating rate to another floating rate or otherwise) with respect to any
interest-bearing liability or investment of Holdings, the Borrower or any
Subsidiary.


 


SECTION 6.08.  Restricted Payments; Certain Payments of
Indebtedness.  (a)  The Borrower
will not, nor will it permit any Subsidiary to, declare or make, or agree to
pay or make, directly or indirectly, any Restricted Payment, or incur any
obligation (contingent or otherwise) to do so, except (i) each of Holdings
and the Borrower may declare and pay dividends with respect to its common
stock, payable solely in additional shares of its common stock, and Holdings
may declare and pay dividends with respect to its preferred stock, payable
solely in additional shares of such preferred stock or in shares of its common
stock, (ii) Subsidiaries may declare and pay dividends ratably with
respect to their capital stock, (iii) the Borrower may make Restricted
Payments to Holdings to permit Holdings to make payments pursuant to and in
accordance with stock option plans or other benefit plans for management or
employees of Holdings, the Borrower and the Subsidiaries in an aggregate amount
not to exceed $7,500,000 during any fiscal year, (iv) so long as no
Default has occurred and is continuing or would result therefrom, the Borrower
may make Restricted Payments to Holdings to permit Holdings to make


 


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payments
of or on account of monitoring or management or similar fees payable to the
Permitted Investors in an aggregate amount in any fiscal year not in excess of
$500,000 (plus any reasonable out-of-pocket expenses in connection therewith), (v) Holdings
may (A) redeem the Qualified Preferred Stock pursuant to a conversion into
common stock of Holdings and (B) make any Restricted Payments in
connection with such conversion, in each case, in accordance with the terms of
the Qualified Preferred Stock, (vi) the Borrower may make Restricted
Payments to Holdings at such times and in such amounts (A) not exceeding
$3,000,000 during any fiscal year, as shall be necessary to permit Holdings to
discharge its corporate overhead (including franchise taxes and directors fees)
and other permitted liabilities and to make payments permitted by Section 6.09
and (B) as shall be necessary to pay any taxes that are due and payable by
Holdings as part of a consolidated group that includes the Borrower, to the
extent that such taxes relate to the operations of the Borrower and the
Subsidiaries, (vii) the holders of the Existing Preferred Stock may
receive cash consideration in the Merger in an aggregate amount not to exceed
$55,000,000, (viii) so long as no Default shall have occurred and be
continuing or would result therefrom, Holdings may repurchase, redeem or retire
its outstanding Equity Interests or make other Restricted Payments (and the
Borrower may make Restricted Payments the proceeds of which are to be used by
Holdings to effect such repurchases, redemptions or retirements) in an
aggregate amount not to exceed (A) in the event the Net Leverage Ratio on
a Pro Forma Basis as of the last day of the most recently ended fiscal quarter
of the Borrower for which financial statements are available is greater than or
equal to 2.00 to 1.00, (x) $10,000,000 minus (y) the aggregate amount of
Restricted Payments previously made pursuant to this clause (viii), (B) in
the event the Net Leverage Ratio on a Pro Forma Basis as of the last day of the
most recently ended fiscal quarter of the Borrower for which financial
statements are available is less than 2.00 to 1.00 and greater than or equal to
1.50 to 1.00, (x) $25,000,000 minus (y) the aggregate amount of Restricted
Payments previously made pursuant to this clause (viii) and (C) in
the event the Net Leverage Ratio on a Pro Forma Basis as of the last day of the
most recently ended fiscal quarter of the Borrower for which financial
statements are available is less than 1.50 to 1.00, (x) $40,000,000 minus (y)
the aggregate amount of Restricted Payments previously made pursuant to this
clause (viii) and (ix) so long as no Default shall have occurred and
be continuing or would result therefrom, Holdings may declare and pay dividends
in respect of the shares of its common stock (and the Borrower may make
Restricted Payments the proceeds of which are used by Holdings to make such
dividend payments) in an aggregate amount not to exceed $2,000,000 during any
fiscal year.


 


(b)                                 Neither
Holdings nor the Borrower will, nor will they permit any Subsidiary to, make or
agree to pay or make, directly or indirectly, any payment or other distribution
(whether in cash, securities or other property) of or in respect of principal
of or interest on any Indebtedness, or any payment or other distribution
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any Indebtedness, except:


 


(i)                                     payment
of Indebtedness created under the Loan Documents;


 


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(ii)                                  payment
of regularly scheduled interest and principal payments as and when due in
respect of any Indebtedness, other than payments in respect of the Subordinated
Debt or the Subordinated Promissory Note prohibited by the subordination
provisions thereof;


 


(iii)                               refinancings
of Indebtedness to the extent permitted by Section 6.01;


 


(iv)                              payment
of secured Indebtedness that becomes due as a result of the voluntary sale or transfer
of the property or assets securing such Indebtedness;


 


(v)                                 redemption
of the Senior Subordinated Notes in accordance with the terms of the Senior
Subordinated Notes Indenture with the Net Proceeds of the Initial Public
Offering (including any premium (if any) and accrued and unpaid interest
thereon to the date of such redemption); provided that (A) the
aggregate principal amount of Senior Subordinated Notes redeemed pursuant to
this clause (v) does not exceed 35% of the aggregate principal amount of
Senior Subordinated Notes outstanding immediately prior to the consummation of
the Transactions and (B) such redemption occurs no later than 90 days
following the consummation of the Transactions;


 


(vi)                              redemption,
repurchase and retirement of Subordinated Debt (including any premium (if any)
and accrued and unpaid interest thereon to the date of such redemption,
repurchase or retirement) with the Net Proceeds of any issuance of Equity
Interests of Holdings (other than the Initial Public Offering) during the
period of four consecutive fiscal quarters ended immediately prior to the date
of such redemption, repurchase or retirement (to the extent not previously
applied to repurchase Subordinated Debt, to make Permitted Acquisitions, to
make Capital Expenditures or to make investments under Section 6.04 (m));
and


 


(vii)                           redemption,
repurchase and retirement of Subordinated Debt (including any premium (if any)
and accrued and unpaid interest thereon to the date of such redemption or
repurchase), at any time during any fiscal year in an aggregate amount equal to
(A) $25,000,000, plus (B) Retained Excess Cash Flow for the previous
fiscal year (to the extent such Retained Excess Cash Flow has not been applied
previously to make Permitted Acquisitions, to repurchase Subordinated Debt or
to make Capital Expenditures).


 


(c)                                  If,
as a result of the receipt of any Net Proceeds by the Borrower or any
Subsidiary in connection with any sale, transfer or other disposition pursuant
to Section 6.05(c) or (g), the Borrower would be required by the
terms of the Senior Subordinated Notes Documents or the terms of any Additional
Senior Subordinated Notes to redeem or repurchase (or to make an offer to
redeem or repurchase) any Senior Subordinated Notes or Additional Senior
Subordinated Notes, then the Borrower shall, or shall cause one or more of its
Subsidiaries to, (i) prepay Term Loans in accordance with Section 2.11
as if such sale, transfer or disposition constituted a “Prepayment Event” or (ii) acquire
real property, equipment or other tangible assets, in each case in a manner


 


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that will eliminate any requirement to redeem or repurchase (or to make
an offer to redeem or repurchase) such Senior Subordinated Notes and Additional
Senior Subordinated Notes.  Any such
prepayment or acquisition pursuant to this clause (c) shall be made prior
to the first day on which the Borrower would be required to redeem or
repurchase (or commence an offer to redeem or repurchase) Senior Subordinated
Notes or Additional Senior Subordinated Notes under the Senior Subordinated
Notes Documents or the terms of any such Additional Senior Subordinated Notes,
as applicable.


 


SECTION 6.09.  Transactions with Affiliates.  Except as set forth on Schedule 6.09,
neither Holdings nor the Borrower will, nor will they permit any Subsidiary to,
sell, lease or otherwise transfer any property or assets to, or purchase, lease
or otherwise acquire any property or assets from, or otherwise engage in any
other transactions with, any of its Affiliates, except (a) transactions in
the ordinary course of business that are at prices and on terms and conditions
not less favorable to the Borrower or such Subsidiary than could be obtained on
an arm’s-length basis from unrelated third parties, (b) transactions
between or among the Borrower and the Subsidiary Loan Parties not involving any
other Affiliate, (c) any investment permitted by Sections 6.04(d)(ii),
(e), (f), (m) or (n) or any Restricted Payment permitted by Section 6.08, (d) customary
compensation and reimbursement of expenses of officers and directors of any
Loan Party, including the issuance of Equity Interests of Holdings, in each
case in the ordinary course of business and (e) any sale or disposition of
inventory by the Borrower or any Subsidiary to wholly owned Foreign
Subsidiaries in the ordinary course of business, at a price not less than the
cost of such inventory.


 


SECTION 6.10.  Restrictive Agreements.  Neither Holdings nor the Borrower will, nor
will they permit any Subsidiary to, directly or indirectly, enter into, incur
or permit to exist any agreement or other arrangement that prohibits, restricts
or imposes any condition upon (a) the ability of Holdings, the Borrower or
any Subsidiary to create, incur or permit to exist any Lien upon any of its
property or assets, or (b) the ability of any Subsidiary to pay dividends
or other distributions with respect to any shares of its capital stock or to
make or repay loans or advances to the Borrower or any other Subsidiary or to
Guarantee Indebtedness of the Borrower or any other Subsidiary; provided
that (i) the foregoing shall not apply to restrictions and conditions
imposed by law or by any Loan Document or Senior Subordinated Debt Document, or
the terms of any Additional Senior Subordinated Notes (to the extent such
restrictions or conditions are no more restrictive than those with respect to
Senior Subordinated Notes), (ii) the foregoing shall not apply to
restrictions and conditions existing on or about the date hereof and identified
on Schedule 6.10 (but shall apply to any extension or renewal of, or any
amendment or modification expanding the scope of, any such restriction or
condition), (iii) the foregoing shall not apply to customary restrictions
and conditions contained in agreements relating to the sale of a Subsidiary
pending such sale, provided such restrictions and conditions apply only to the
Subsidiary that is to be sold and such sale is permitted hereunder, (iv) clause
(a) of the foregoing shall not apply to restrictions or conditions imposed
by any agreement relating to secured Indebtedness permitted by this Agreement
if such restrictions or conditions apply only to the property or assets


 


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securing
such Indebtedness and (v) clause (a) of the foregoing shall not apply
to customary provisions in leases restricting the assignment thereof.


 


SECTION 6.11.  Amendment of Material Documents.  Neither Holdings nor the Borrower will, nor
will they permit any Subsidiary to, amend, modify or waive any of its rights
under (a) any Senior Subordinated Debt Document, (b) the Subordinated
Promissory Note, (c) its certificate of incorporation, by-laws or other
organizational documents (other than to change its name) or (d) the terms
of any Additional Senior Subordinated Notes, except for such amendments,
modifications or waivers that could not be reasonably expected to effect any
change materially adverse to the interests and rights of the Administrative
Agent or the Lenders under any Loan Document.


 


SECTION 6.12.  Interest Expense Coverage Ratio.  The Borrower will not permit the ratio of (a) Consolidated
EBITDA to (b) Consolidated Cash Interest Expense, in each case on the last
day of any period of four consecutive fiscal quarters ending on or about any
date set forth below, to be less than the ratio set forth below opposite such
period:


 


	
  Period

  	
   

  	
  Ratio

  	
   

  
	
  December 31, 2004

  	
   

  	
  1.75 to 1.00

  	
   

  
	
  March 31, 2005

  	
   

  	
  1.75 to 1.00

  	
   

  
	
  June 30, 2005

  	
   

  	
  1.75 to 1.00

  	
   

  
	
  September 30, 2005

  	
   

  	
  2.00 to 1.00

  	
   

  
	
  December 31, 2005

  	
   

  	
  2.00 to 1.00

  	
   

  
	
  March 31, 2006

  	
   

  	
  2.00 to 1.00

  	
   

  
	
  June 30, 2006

  	
   

  	
  2.00 to 1.00

  	
   

  
	
  September 30, 2006

  	
   

  	
  2.25 to 1.00

  	
   

  
	
  December 31, 2006

  	
   

  	
  2.25 to 1.00

  	
   

  
	
  March 31, 2007

  	
   

  	
  2.25 to 1.00

  	
   

  
	
  June 30, 2007

  	
   

  	
  2.25 to 1.00

  	
   

  
	
  Thereafter

  	
   

  	
  2.50 to 1.00

  	
   

  



 


SECTION 6.13.  Net Leverage Ratio.  The Borrower will not permit the Net Leverage
Ratio as of the last day of any fiscal quarter ending on or about any date set
forth below to exceed the ratio set forth opposite such period:


 


	
  Period

  	
   

  	
  Ratio

  	
   

  
	
  December 31, 2004

  	
   

  	
  4.50 to 1.00

  	
   

  
	
  March 31, 2005

  	
   

  	
  4.50 to 1.00

  	
   

  
	
  June 30, 2005

  	
   

  	
  4.50 to 1.00

  	
   

  
	
  September 30, 2005

  	
   

  	
  4.50 to 1.00

  	
   

  
	
  December 31, 2005

  	
   

  	
  4.25 to 1.00

  	
   

  
	
  March 31, 2006

  	
   

  	
  4.00 to 1.00

  	
   

  
	
  June 30, 2006

  	
   

  	
  4.00 to 1.00

  	
   

  
	
  September 30, 2006

  	
   

  	
  4.00 to 1.00

  	
   

  
	
  December 31, 2006

  	
   

  	
  3.75 to 1.00

  	
   

  
	
  March 31, 2007

  	
   

  	
  3.75 to 1.00

  	
   

  
	
  June 30, 2007

  	
   

  	
  3.75 to 1.00

  	
   

  
	
  September 30, 2007

  	
   

  	
  3.75 to 1.00

  	
   

  
	
  Thereafter

  	
   

  	
  3.50 to 1.00

  	
   

  



 


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SECTION 6.14.  Maximum Capital Expenditures.  (a)  The Borrower will not, nor will it
permit any Subsidiary to, incur or make any Capital Expenditures during any
fiscal year in an amount exceeding (i) 2.5% of Net Sales for such fiscal
year, plus (ii) Retained Excess Cash Flow for the immediately prior fiscal
year (to the extent such Retained Excess Cash Flow has not been applied
previously to repurchase Subordinated Debt, make Permitted Acquisitions or make
Capital Expenditures).


 


(b)                                 The
amount of any Capital Expenditures permitted to be made in respect of any
fiscal year shall be increased by the unused amount of Capital Expenditures
that were permitted to be made during the immediately preceding fiscal year
pursuant to Section 6.14(a). 
Capital Expenditures in any fiscal year shall be deemed to use, first,
the amount for such fiscal year set forth in Section 6.14(a) and,
second, any amount carried forward to such fiscal year pursuant to this Section 6.14(b).


 


(c)                                  In
addition to the Capital Expenditures permitted pursuant to the preceding
paragraphs (a) and (b), the Borrower and the Subsidiaries may make
additional Capital Expenditures with the Net Proceeds from the issuance of
Equity Interests of Holdings (other than the Initial Public Offering) during
the period of four consecutive fiscal quarters ended immediately prior to the
date of such Capital Expenditure (to the extent not previously applied to
repurchase Subordinated Debt, to make Permitted Acquisitions, to make Capital
Expenditures or to make investments under Section 6.04 (m)).


 


ARTICLE VII


 


Events of Default


 


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


 


(a)                                  the
Borrower shall fail to pay any principal of any Loan or any reimbursement
obligation in respect of any LC Disbursement when and as the same shall become
due and payable, whether at the due date thereof or at a date fixed for
prepayment thereof or otherwise;


 


(b)                                 the
Borrower shall fail to pay any interest on any Loan or any fee or any other
amount (other than an amount referred to in clause (a) of this Article)
payable under this Agreement or any other Loan Document, when and as the same
shall become due and payable, and such failure shall continue unremedied for a
period of three Business Days;


 


(c)                                  any
representation or warranty made or deemed made by or on behalf of Holdings, the
Borrower or any Subsidiary in or in connection with any Loan Document or any
amendment or modification thereof or waiver thereunder,


 


75





















 


or in any report,
certificate, financial statement or other document furnished pursuant to or in
connection with any Loan Document or any amendment or modification thereof or
waiver thereunder, shall prove to have been incorrect in any material respect
on or as of the date when made or deemed made;


 


(d)                                 Holdings
or the Borrower shall fail to observe or perform any covenant, condition or
agreement contained in Section 5.02, 5.04 (with respect to the existence
of Holdings and the Borrower) or 5.11 or in Article VI;


 


(e)                                  any
Loan Party shall fail to observe or perform any covenant, condition or
agreement contained in any Loan Document (other than those specified in clause
(a), (b) or (d) of this Article), and such failure shall continue
unremedied for a period of 30 days after notice thereof from the Administrative
Agent to the Borrower (which notice will be given at the request of any
Lender);


 


(f)                                    Holdings,
the Borrower or any Subsidiary shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any Material
Indebtedness, when and as the same shall become due and payable;


 


(g)                                 any
event or condition occurs that results in any Material Indebtedness becoming
due prior to its scheduled maturity or that enables or permits (with or without
the giving of notice, the lapse of time or both) the holder or holders of any
Material Indebtedness or any trustee or agent on its or their behalf to cause
any Material Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided
that this clause (g) shall not apply to secured Indebtedness that becomes
due as a result of the voluntary sale or transfer of the property or assets
securing such Indebtedness;


 


(h)                                 an
involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, reorganization or other relief in respect
of Holdings, the Borrower or any Subsidiary or its debts, or of a substantial
part of its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for Holdings, the Borrower or any Subsidiary or for a
substantial part of its assets, and, in any such case, such proceeding or
petition shall continue undismissed for 60 days or an order or decree approving
or ordering any of the foregoing shall be entered;


 


(i)                                     Holdings,
the Borrower or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other
relief under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, (ii) consent to the institution
of, or fail to contest in a timely and appropriate manner, any proceeding or
petition described in clause (h) of this Article, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar


 


76





















 


official for Holdings,
the Borrower or any Subsidiary or for a substantial part of its assets, (iv) file
an answer admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any formal action for the purpose of effecting any
of the foregoing;


 


(j)                                     Holdings,
the Borrower or any Subsidiary shall become unable, admit in writing its
inability or fail generally to pay its debts as they become due;


 


(k)                                  one
or more judgments for the payment of money in an aggregate amount in excess of
$3,000,000 shall be rendered against Holdings, the Borrower, any Subsidiary or
any combination thereof and the same shall remain undischarged for a period of
30 consecutive days during which execution shall not be effectively stayed, or
any action shall be legally taken by a judgment creditor to attach or levy upon
any assets of Holdings, the Borrower or any Subsidiary to enforce any such
judgment;


 


(l)                                     an
ERISA Event shall have occurred that, in the reasonable opinion of the Required
Lenders, when taken together with all other ERISA Events that have occurred,
could reasonably be expected to result in an unsatisfied liability of Holdings,
the Borrower and the Subsidiaries in an aggregate amount exceeding $5,000,000
for all periods;


 


(m)                               (i) any
Loan Document shall for any reason be asserted by Holdings, the Borrower or any
Subsidiary Loan Party not to be a legal, valid and binding obligation of any
party thereto; (ii) any Lien purported to be created under any Security
Document shall cease to be, or shall be asserted by any Loan Party not to be, a
valid and perfected Lien on any Collateral, with the priority required by the
applicable Security Document, except (A) as a result of the sale or other
disposition of the applicable Collateral in a transaction permitted under the
Loan Documents or (B) as a result of the Administrative Agent’s failure to
maintain possession of any stock certificates, promissory notes or other
instruments delivered to it under the Collateral Agreement or (iii) the
Guarantees pursuant to the Security Documents by the Subsidiary Loan Parties of
any of the Obligations shall cease to be in full force and effect (other than
in accordance with the terms hereof) or shall be asserted by any Subsidiary
Loan Party not to be in effect or not to be legal, valid and binding
obligations; or


 


(n)                                 a
Change in Control shall occur;


 


then, and in every such event (other than an event
with respect to the Borrower described in clause (h) or (i) of this
Article), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by
notice to the Borrower, take either or both of the following actions, at the
same or different times:  (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or
in part, in which case any principal not so declared to be due and payable


 


77





















 


may thereafter be declared to be due and payable), and
thereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and all fees and other obligations of
the Borrower accrued hereunder, shall become due and payable immediately,
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower; and in case of any event with respect to the
Borrower described in clause (h) or (i) of this Article, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall automatically become due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower.


 


ARTICLE VIII


 


The Administrative
Agent


 


Each of the Lenders and
the Issuing Banks hereby irrevocably appoints the Administrative Agent as its
agent and authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent
by the terms of the Loan Documents, together with such actions and powers as
are reasonably incidental thereto.


 


The bank serving as the
Administrative Agent hereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though it
were not the Administrative Agent, and such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
Holdings, the Borrower or any Subsidiary or other Affiliate thereof as if it
were not the Administrative Agent hereunder.


 


The Administrative Agent
shall not have any duties or obligations except those expressly set forth in
the Loan Documents.  Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be
subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Administrative Agent shall
not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated by the Loan Documents that the Administrative Agent is required to
exercise in writing as directed by the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02), and (c) except as expressly set forth in
the Loan Documents and except for documents, notices and other information to
be provided to the Lenders through the Administrative Agent, the Administrative
Agent shall not have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to Holdings, the Borrower or any
of the Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity.  The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary under the circumstances as provided in Section 9.02) or
in the absence of its own gross negligence or willful misconduct.  The Administrative Agent shall not be 


 


78





















 


deemed not to have
knowledge of any Default unless and until written notice thereof is given to
the Administrative Agent by Holdings, the Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or
in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered thereunder or in connection
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth in any Loan Document, (iv) the
validity, enforceability, effectiveness or genuineness of any Loan Document or
any other agreement, instrument or document, or (v) the satisfaction of
any condition set forth in Article IV or elsewhere in any Loan Document,
other than to confirm receipt of items expressly required to be delivered to
the Administrative Agent.


 


The Administrative Agent
shall be entitled to rely upon, and shall not incur any liability for relying
upon, any notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to have been signed
or sent by the proper Person.  The
Administrative Agent also may rely upon any statement made to it orally or by telephone
and believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon.  The
Administrative Agent may consult with legal counsel (who may be counsel for
Holdings or the Borrower), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.


 


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


 


Subject to the
appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time upon 30 days’
notice to the Lenders, the Issuing Banks and the Borrower.  Upon any such resignation, the Required
Lenders shall have the right to appoint a successor, which successor shall be
approved by the Borrower in writing, such approval not to be unreasonably
withheld.  If no successor shall have
been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of
the Lenders and the Issuing Banks, appoint a successor Administrative Agent
which shall be a bank with an office in New York, New York, or an Affiliate of
any such bank.  Upon the acceptance of
its appointment as Administrative Agent hereunder by a successor, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations


 


79





















 


hereunder.  The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor.  After the Administrative Agent’s resignation
hereunder, the provisions of this Article and Section 9.03 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while it was acting as Administrative
Agent.


 


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


 


ARTICLE IX


 


Miscellaneous


 


SECTION 9.01.  Notices.  (a)  Except in the case of notices and
other communications expressly permitted to be given by telephone, all notices
and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:


 


(i)                                     if
to the Borrower, to it at 801 W.  Bay
Street, Jacksonville, Florida 32204, Attention of Charles Blackmon, Executive
Vice President and Chief Financial Officer (Telecopy No. (904) 421-1434),
with a copy to Parthenon Capital, Inc., 200 State Street, Boston,
Massachusetts 02109, Attention of Drew Sawyer (Telecopy No. (617) 478-7010);


 


(ii)                                  if
to the Administrative Agent, to Credit Suisse First Boston, Eleven Madison
Avenue, New York, New York 10010, Attention of Agency Group (Telecopy No. (212)
325-8304);


 


(iii)                               if
to an Issuing Bank, to it at its address (or facsimile number set forth in its
Administrative Questionnaire (unless such Issuing Bank has specified another
address or facsimile number by notice to the Borrower and the Administrative
Agent));


 


(iv)                              if
to the Swingline Lender, to it at Eleven Madison Avenue, New York, New York
10010, Attention of Agency Group (Telecopy No.  (212) 325-8304); and


 


80





















 


(v)                                 if
to any other Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.


 


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


 


(c)                                  Any
party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the Administrative Agent.  All notices and other communications given to
any party hereto in accordance with the provisions of this Agreement shall be
deemed to have been given on the date of receipt.


 


SECTION 9.02.  Waivers; Amendments.  (a)  No failure or delay by the
Administrative Agent, any Issuing Bank or any Lender in exercising any right or
power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power.  The rights and remedies
of the Administrative Agent, the Issuing Banks and the Lenders hereunder and
under the other Loan Documents are cumulative and are not exclusive of any
rights or remedies that they would otherwise have.  No waiver of any provision of any Loan
Document or consent to any departure by any Loan Party therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of
this Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given.  Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether the Administrative
Agent, any Lender or any Issuing Bank may have had notice or knowledge of such
Default at the time.


 


(b)                                 Except
as provided in Section 2.20 with respect to an Incremental Facility
Amendment, neither this Agreement nor any other Loan Document nor any provision
hereof or thereof may be waived, amended or modified except, in the case of
this Agreement, pursuant to an agreement or agreements in writing entered into
by Holdings, the Borrower and the Required Lenders or, in the case of any other
Loan Document, pursuant to an agreement or agreements in writing entered into
by the Administrative Agent and the Loan Party or Loan Parties that are parties
thereto, in each case with the consent of the Required Lenders; provided
that no such agreement shall (i) increase the Commitment of any Lender
without the written consent of such Lender, (ii) reduce or forgive the
principal amount of any Loan or LC Disbursement or reduce the rate of interest
thereon, or reduce any fees payable hereunder, without the written consent of
each Lender affected thereby, (iii) postpone the maturity of any Loan, or
any scheduled date of payment of the principal amount of any Term Loan under Section 2.10,


 


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or the required date of reimbursement of any LC Disbursement, or any
date for the payment of any interest or fees payable hereunder, or reduce the
amount of, waive or excuse any such payment, postpone the scheduled date of
expiration of any Commitment or permit the expiration date of any Letter of
Credit to be after the fifth Business Day prior to the Revolving Maturity Date,
without the written consent of each Lender affected thereby, (iv) change Section 2.18(b) or
(c) in a manner that would alter the pro rata sharing of payments required
thereby, without the written consent of each Lender, (v) change any of the
provisions of this Section or the percentage set forth in the definition
of the term “Required Lenders” or any other provision of any Loan Document
specifying the number or percentage of Lenders (or Lenders of any Class)
required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent of
each Lender (or each Lender of such Class, as the case may be), (vi) release
any Subsidiary Loan Party from its Guarantee under the Collateral Agreement
(except as expressly provided in the Collateral Agreement), or limit its
liability in respect of such Guarantee, without the written consent of each
Lender, (vii) release all or substantially all of the Collateral from the
Liens of the Security Documents (except as expressly provided in the Collateral
Agreement), without the written consent of each Lender, or (viii) change
any provisions of any Loan Document in a manner that by its terms adversely
affects the rights in respect of payments due to Lenders holding Loans of any Class differently
than those holding Loans of any other Class, without the written consent of
Lenders holding a majority in interest of the outstanding Loans and unused
Commitments of each adversely affected Class; provided  further
that (A) no such agreement shall amend, modify or otherwise affect the
rights or duties of the Administrative Agent, any Issuing Bank or the Swingline
Lender without the prior written consent of the Administrative Agent, such
Issuing Bank or the Swingline Lender, as the case may be, and (B) any
waiver, amendment or modification of this Agreement that by its terms affects
the rights or duties under this Agreement of the Revolving Lenders (but not the
Term Loan Lenders) or the Term Loan Lenders (but not the Revolving Lenders) may
be effected by an agreement or agreements in writing entered into by the
Borrower and the requisite percentage in interest of the affected Class of
Lenders that would be required to consent thereto under this Section if
such Class of Lenders were the only Class of Lenders hereunder at the
time.  Notwithstanding the foregoing, any
provision of this Agreement may be amended by an agreement in writing entered
into by Holdings, the Borrower, the Required Lenders and the Administrative
Agent (and, if their rights or obligations are affected thereby, the Issuing
Banks and the Swingline Lender) if (i) by the terms of such agreement the
Commitment of each Lender not consenting to the amendment provided for therein
shall terminate upon the effectiveness of such amendment and (ii) at the
time such amendment becomes effective, each Lender not consenting thereto
receives payment in full of the principal of and interest accrued on each Loan
made by it and all other amounts owing to it or accrued for its account under
this Agreement.  In connection with any
proposed amendment, modification, waiver or termination (a “Proposed Change”)
requiring the consent of all affected Lenders, if the consent of the Required
Lenders to such Proposed Change is obtained, but the consent to such Proposed
Change of other Lenders whose consent is required is not obtained (any such
Lender whose consent is not obtained as described in this Section 9.02(b) being
referred to as a “Non-Consenting Lender”), then, so long as the


 


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Lender that is acting as the Administrative Agent is not a
Non-Consenting Lender, at the Borrower’s request, any assignee that is
acceptable to the Administrative Agent shall have the right, with the
Administrative Agent’s consent, to purchase from such Non-Consenting Lender,
and such Non-Consenting Lender agrees that it shall, upon the Borrower’s
request, sell and assign to such assignee, at no expense to such Non-Consenting
Lender (including any processing and recordation fee as may be applicable
pursuant to Section 9.04(b)(ii)(C)), all of the Commitments, Term Loans
and Revolving Exposure of such Non-Consenting Lender for an amount equal to the
principal balance of all Term Loans and Revolving Loans (and funded
participations in Swingline Loans and unreimbursed LC Disbursements) held by
such Non-Consenting Lender and all accrued interest and fees with respect thereto
through the date of sale, such purchase and sale to be consummated pursuant to
an executed Assignment and Assumption in accordance with Section 9.04(b).


 


SECTION 9.03.  Expenses; Indemnity; Damage Waiver.  (a)  The Borrower shall pay (i) all
reasonable out-of-pocket expenses incurred by the Agents and their respective
Affiliates (including expenses incurred in connection with due diligence),
including the reasonable fees, charges and disbursements of counsel for the
Agents, in connection with the syndication of the credit facilities provided
for herein, the preparation and administration of the Loan Documents or any
amendments, modifications or waivers of the provisions thereof (whether or not
the transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by any Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all reasonable out-of-pocket
expenses incurred by the Administrative Agent, any Issuing Bank or any Lender,
including the fees, charges and disbursements of any counsel for the
Administrative Agent, any Issuing Bank or any Lender, in connection with the
enforcement or protection of its rights in connection with the Loan Documents,
including its rights under this Section, or in connection with the Loans made
or Letters of Credit issued hereunder, including all such reasonable
out-of-pocket expenses incurred during any workout, restructuring or negotiations
in respect of such Loans or Letters of Credit.


 


(b)                                 The
Borrower shall indemnify the Administrative Agent, each Issuing Bank and each
Lender, and each Related Party of any of the foregoing Persons (each such
Person being called an “Indemnitee”) against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including the reasonable fees, charges and disbursements of any
counsel for any Indemnitee, incurred by or asserted against any Indemnitee
arising out of, in connection with, or as a result of (i) the execution or
delivery of any Loan Document or any other agreement or instrument contemplated
hereby, the performance by the parties to the Loan Documents of their
respective obligations thereunder or the consummation of the Transactions or
any other transactions contemplated hereby, (ii) any Loan or Letter of Credit
or the use of the proceeds therefrom (including any refusal by an Issuing Bank
to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of


 


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Credit), (iii) any actual or alleged presence or Release of
Hazardous Materials on or from any Mortgaged Property or any other property
currently or formerly owned or operated by the Borrower or any of the
Subsidiaries, or any Environmental Liability related in any way to the Borrower
or any of the Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct
of such Indemnitee.


 


(c)                                  To
the extent that the Borrower fails to pay any amount required to be paid by it
to the Administrative Agent, any Issuing Bank or any Swingline Lender under
paragraph (a) or (b) of this Section, (i) in the case of amounts
required to be paid to the Administrative Agent, each Lender severally agrees
to pay to the Administrative Agent such Lender’s pro rata share (determined as
of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount and (ii) in the case of amounts required to
be paid to any Issuing Bank or any Swingline Lender, each Revolving Lender
severally agrees to pay to the applicable Issuing Bank or applicable Swingline
Lender, as the case may be, such Revolving Lender’s pro rata share (determined
as of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against the Administrative Agent, the
applicable Issuing Bank or the applicable Swingline Lender in its capacity as
such.  For purposes hereof, a Lender’s “pro
rata share” shall be determined based upon its share of the sum of the total
Revolving Exposures, outstanding Term Loans and unused Commitments at the time.


 


(d)                                 To
the extent permitted by applicable law, neither Holdings nor the Borrower shall
assert, and each hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as
a result of, this Agreement or any agreement or instrument contemplated hereby,
the Transactions, any Loan or Letter of Credit or the use of the proceeds
thereof.


 


(e)                                  All
amounts due under this Section shall be payable not later than three
Business Days after written demand therefor.


 


SECTION 9.04.  Successors and Assigns.  (a)  The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby (including any Affiliate of
an Issuing Bank that issues any Letter of Credit), except that (i) the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any such
attempted assignment or transfer by the Borrower without such consent shall be
null and void) and (ii) no Lender may assign or otherwise transfer its
rights or obligations hereunder except in accordance with this Section.  Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any


 


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Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of any Issuing Bank that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c) of
this Section) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, any Issuing Bank and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.


 


(b)                                 (i) 
Subject to the conditions set forth in paragraph (b)(ii) below, any Lender
may assign to one or more 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), with the prior written consent (such
consent not to be unreasonably withheld or delayed) of:


 


(A)                              the
Borrower; provided that no consent of the Borrower shall be required for
an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an
Event of Default has occurred and is continuing, or if such assignment is made
in connection with the syndication of the Revolving Commitments by the Agents,
any other assignee;


 


(B)                                the
Administrative Agent; provided that no consent of the Administrative
Agent shall be required for an assignment of all or any portion of a Term Loan
to a Lender, an Affiliate of a Lender or an Approved Fund; and


 


(C)                                the
Issuing Banks; provided that no consent of the Issuing Banks shall be
required for an assignment of all or any portion of a Term Loan.


 


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


 


(A)                              except
in the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning
Lender’s Commitment, the amount of the Commitment of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $2,500,000 (or, in the case of the Term Loans,
$1,000,000) unless each of the Borrower and the Administrative Agent otherwise
consent (such consent not to be unreasonably withheld or delayed), provided
that no such consent of the Borrower shall be required if an Event of Default
has occurred and is continuing;


 


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


 


(C)                                the
parties to each assignment shall (1) electronically execute and deliver to
the Administrative Agent an Assignment and Assumption via an


 


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electronic settlement
system acceptable to the Administrative Agent (which initially shall be
ClearPar, LLC) or (2) if no such system shall be acceptable to the
Administrative Agent, manually execute and deliver to the Administrative Agent
an Assignment and Assumption, together with a processing and recordation fee of
$3,500; provided that only one such fee shall be payable in connection
with simultaneous assignments to or by two or more Approved Funds; and


 


(D)                               the
assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire.


 


For purposes of this Section 9.04(b),
the terms “Approved Fund” and “CLO” have the following meanings:


 


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


 


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


 


(iii)                               Subject to acceptance
and recording thereof pursuant to paragraph (b)(iv) of this Section,
from and after the effective date specified in each Assignment and Assumption
the assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections
2.15, 2.16, 2.17 and 9.03).  Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this Section 9.04 shall be treated for purposes
of this Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with paragraph (c) of this Section.


 


(iv)                              The
Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain at one of its offices a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses
of the Lenders, and the Commitment of, and principal amount of the Loans and LC
Disbursements owing to, each Lender pursuant to the terms hereof from time to
time (the “Register”).  The
entries in the Register shall be conclusive in the absence of clearly
demonstrable error, and the Borrower, the Administrative Agent, the Issuing
Banks and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding


 


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notice to the contrary.  The Register
shall be available for inspection by the Borrower, any Issuing Bank and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.


 


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


 


(c)                                  (i) 
Any Lender may, without the consent of the Borrower, the Administrative Agent,
any Issuing Bank or the Swingline Lender, sell participations to one or more
banks or other entities (a “Participant”) in all or a portion of such
Lender’s rights and obligations under this Agreement (including all or a
portion of its Commitments and the Loans owing to it); provided that (A) such
Lender’s obligations under this Agreement shall remain unchanged, (B) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (C) the Borrower, the Administrative
Agent, the Issuing Banks 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 described in the first proviso
to Section 9.02(b) that affects such Participant.  Subject to paragraph (c)(ii) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section.  To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 9.08
as though it were a Lender, provided such Participant agrees to be subject to Section 2.18(c) as
though it were a Lender.


 


(ii)                                  A
Participant shall not be entitled to receive any greater payment under Section 2.15
or 2.17 than the applicable Lender would have been entitled to receive with respect
to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower’s prior written
consent.  A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.17
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with Section 2.17(e) as
though it were a Lender.


 


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(d)                                 Any
Lender may at any time pledge, assign or grant a security interest in all or
any portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge, assignment or grant to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge,
assignment or grant of a security interest; provided that no such
pledge, assignment or grant of a security interest shall release a Lender from
any of its obligations hereunder or substitute any such pledgee, assignee or
grantee for such Lender as a party hereto.


 


SECTION 9.05.  Survival.  All covenants, agreements, representations
and warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Administrative Agent, any Issuing
Bank or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated.  The provisions of Sections 2.15, 2.16, 2.17
and 9.03 and Article VIII shall survive and remain in full force and
effect regardless of the consummation of the transactions contemplated hereby,
the repayment of the Loans, the expiration or termination of the Letters of
Credit and the Commitments or the termination of this Agreement or any
provision hereof.


 


SECTION 9.06.  Counterparts; Integration; Effectiveness.  This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract.  This
Agreement, the other Loan Documents and any separate letter agreements with
respect to fees payable to the Administrative Agent constitute the entire
contract among the parties relating to the subject matter hereof and supersede
any and all previous agreements and understandings, oral or written, relating
to the subject matter hereof.  Except as provided
in Section 4.01, this Agreement shall become effective when it shall have
been executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.  Delivery of an
executed counterpart of a signature page of this Agreement by telecopy
shall be effective as delivery of a manually executed counterpart of this
Agreement.


 


SECTION 9.07.  Severability.  Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the


 


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invalidity
of a particular provision in a particular jurisdiction shall not invalidate
such provision in any other jurisdiction.


 


SECTION 9.08.  Right of Setoff.  If an Event of Default shall have occurred
and be continuing, each Lender and each of its Affiliates is hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other obligations at any time owing
by such Lender or Affiliate to or for the credit or the account of the Borrower
against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured.  The
applicable Lender shall notify the Borrower and the Administrative Agent of
such setoff or application; provided that any failure to give or delay
in giving such notice shall not affect the validity of any such setoff or
application under this Section.  The
rights of each Lender under this Section are in addition to other rights
and remedies (including other rights of setoff) which such Lender may have.


 


SECTION 9.09.  Governing Law; Jurisdiction; Consent to
Service of Process.  (a)  This
Agreement shall be construed in accordance with and governed by the law of the
State of New York.


 


(b)                                 Each
of Holdings and the Borrower hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to any Loan Document, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court.  Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. 
Nothing in this Agreement or any other Loan Document shall affect any
right that the Administrative Agent, any Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or
any other Loan Document against Holdings, the Borrower or their properties in
the courts of any jurisdiction.


 


(c)                                  Each
of Holdings and the Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any other Loan
Document in any court referred to in paragraph (b) of this Section.  Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.


 


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(d)                                 Each
party to this Agreement irrevocably consents to service of process in the
manner provided for notices in Section 9.01.  Nothing in this Agreement or any other Loan
Document will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.


 


SECTION 9.10.  WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 


SECTION 9.11.  Headings.  Article and Section headings and
the Table of Contents used herein are for convenience of reference only, are
not part of this Agreement and shall not affect the construction of, or be
taken into consideration in interpreting, this Agreement.


 


SECTION 9.12.  Confidentiality.  Each of the Administrative Agent, the Issuing
Banks and the Lenders agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to its
and its Affiliates’ directors, officers, employees, trustees and agents,
including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i) any
assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower and its obligations, (g) with the
consent of the Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent, any Issuing Bank or any Lender on a
nonconfidential basis from a source other than Holdings or the Borrower; provided
that such source is not actually known by such disclosing party to be bound by
an agreement containing provisions substantially the same as those of this
Section.  For


 


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the purposes of this
Section, “Information” means all information received from Holdings and
the Borrower relating to Holdings or the Borrower or their business, other than
any such information that is available to the Administrative Agent, any Issuing
Bank or any Lender on a nonconfidential basis prior to disclosure by Holdings
or the Borrower; provided that, in the case of information received from
Holdings or the Borrower after the date hereof, such information is clearly
identified at the time of delivery as confidential.  Any Person required to maintain the
confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.


 


SECTION 9.13.  Interest Rate Limitation.  Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which are treated as interest on such
Loan under applicable law (collectively the “Charges”), shall exceed the
maximum lawful rate (the “Maximum Rate”) which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or periods
shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Effective
Rate to the date of repayment, shall have been received by such Lender.


 


SECTION 9.14.  USA Patriot Act.  Each Lender hereby notifies the Borrower that
pursuant to the requirements of the USA Patriot Act, it is required to obtain,
verify and record information that identifies the Borrower, which information
includes the name and address of the Borrower and other information that will
allow such Lender to identify the Borrower in accordance with the USA Patriot
Act.


 


SECTION 9.15.  Existing Credit Agreement; Effectiveness
of Amendment and Restatement.  Until
this Agreement becomes effective in accordance with the terms of the Amendment
and Restatement Agreement, the Existing Credit Agreement shall remain in full
force and effect and shall not be affected hereby.  After the Restatement Effective Date, all
obligations of the Borrower under the Existing Credit Agreement shall become
obligations of the Borrower hereunder, secured by the Security Documents, and
the provisions of the Existing Credit Agreement shall be superseded by the
provisions hereof.


 


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