Exhibit 10.4


 


EXECUTION COPY




 





 


 


FIRST LIEN CREDIT AGREEMENT


 


dated as of


 


December 16, 2005,


 


among


 


WEIGHTWATCHERS.COM, INC.,


 


THE LENDERS PARTY HERETO


 


and


 


CREDIT SUISSE,


as Administrative Agent and Collateral Agent


 






 


CREDIT SUISSE,


as Sole Lead Arranger and Sole Bookrunner


 




 





 


 

















 


ARTICLE I


 


Definitions


 


	
  SECTION 1.01.

  	
  Defined Terms

  	
  1

  
	
  SECTION 1.02.

  	
  Terms Generally

  	
  19

  
	
  SECTION 1.03.

  	
  Pro Forma Calculations

  	
  20

  
	
  SECTION 1.04.

  	
  Classification of Loans and Borrowings

  	
  20

  



 


ARTICLE II


 


The Loans


 


	
  SECTION 2.01.

  	
  Commitments

  	
  20

  
	
  SECTION 2.02.

  	
  Loans

  	
  20

  
	
  SECTION 2.03.

  	
  Borrowing Procedure

  	
  21

  
	
  SECTION 2.04.

  	
  Evidence of Debt; Repayment of Loans

  	
  22

  
	
  SECTION 2.05.

  	
  Fees

  	
  22

  
	
  SECTION 2.06.

  	
  Interest on Loans

  	
  22

  
	
  SECTION 2.07.

  	
  Default Interest

  	
  23

  
	
  SECTION 2.08.

  	
  Alternate Rate of Interest

  	
  23

  
	
  SECTION 2.09.

  	
  Termination and Reduction of Commitments

  	
  23

  
	
  SECTION 2.10.

  	
  Conversion and Continuation of Borrowings

  	
  24

  
	
  SECTION 2.11.

  	
  Repayment of Borrowings

  	
  25

  
	
  SECTION 2.12.

  	
  Optional Prepayment

  	
  26

  
	
  SECTION 2.13.

  	
  Mandatory Prepayments

  	
  27

  
	
  SECTION 2.14.

  	
  Reserve Requirements; Change in Circumstances

  	
  28

  
	
  SECTION 2.15.

  	
  Change in Legality

  	
  29

  
	
  SECTION 2.16.

  	
  Indemnity

  	
  30

  
	
  SECTION 2.17.

  	
  Pro Rata Treatment

  	
  30

  
	
  SECTION 2.18.

  	
  Sharing of Setoffs

  	
  30

  
	
  SECTION 2.19.

  	
  Payments

  	
  31

  
	
  SECTION 2.20.

  	
  Taxes

  	
  32

  
	
  SECTION 2.21.

  	
  Assignment of Commitments Under Certain Circumstances; Duty to
  Mitigate

  	
  32

  



 


ARTICLE III


 


Representations and Warranties


 


	
  SECTION 3.01.

  	
  Organization; Powers

  	
  34

  
	
  SECTION 3.02.

  	
  Authorization

  	
  34

  
	
  SECTION 3.03.

  	
  Enforceability

  	
  34

  
	
  SECTION 3.04.

  	
  Governmental Approvals

  	
  35

  
	
  SECTION 3.05.

  	
  Financial Statements

  	
  35

  
	
  SECTION 3.06.

  	
  No Material Adverse Change

  	
  35

  



 

















 


	
  SECTION 3.07.

  	
  Title to Properties; Possession Under Leases

  	
  36

  
	
  SECTION 3.08.

  	
  Subsidiaries

  	
  36

  
	
  SECTION 3.09.

  	
  Litigation; Compliance with Laws

  	
  36

  
	
  SECTION 3.10.

  	
  Agreements

  	
  36

  
	
  SECTION 3.11.

  	
  Federal Reserve Regulations

  	
  36

  
	
  SECTION 3.12.

  	
  Investment Company Act

  	
  37

  
	
  SECTION 3.13.

  	
  Use of Proceeds

  	
  37

  
	
  SECTION 3.14.

  	
  Tax Returns

  	
  37

  
	
  SECTION 3.15.

  	
  No Material Misstatements

  	
  37

  
	
  SECTION 3.16.

  	
  Employee Benefit Plans

  	
  37

  
	
  SECTION 3.17.

  	
  Environmental Matters

  	
  37

  
	
  SECTION 3.18.

  	
  Insurance

  	
  38

  
	
  SECTION 3.19.

  	
  Security Documents

  	
  38

  
	
  SECTION 3.20.

  	
  Labor Matters

  	
  38

  
	
  SECTION 3.21.

  	
  Solvency

  	
  39

  
	
  SECTION 3.22.

  	
  Transaction Documents

  	
  39

  



 


ARTICLE IV


 


Conditions of Lending


 


ARTICLE V


 


Affirmative Covenants


 


	
  SECTION 5.01.

  	
  Existence; Compliance with Laws; Businesses and Properties

  	
  42

  
	
  SECTION 5.02.

  	
  Insurance

  	
  42

  
	
  SECTION 5.03.

  	
  Obligations and Taxes

  	
  43

  
	
  SECTION 5.04.

  	
  Financial Statements, Reports, etc

  	
  43

  
	
  SECTION 5.05.

  	
  Litigation and Other Notices

  	
  45

  
	
  SECTION 5.06.

  	
  Information Regarding Collateral

  	
  45

  
	
  SECTION 5.07.

  	
  Maintaining Records; Access to Properties and Inspections;
  Maintenance of Ratings

  	
  46

  
	
  SECTION 5.08.

  	
  Use of Proceeds

  	
  46

  
	
  SECTION 5.09.

  	
  Employee Benefits

  	
  46

  
	
  SECTION 5.10.

  	
  Compliance with Environmental Laws

  	
  46

  
	
  SECTION 5.11.

  	
  Further Assurances

  	
  46

  
	
  SECTION 5.12.

  	
  Interest Rate Protection

  	
  47

  



 


ARTICLE VI


 


Negative Covenants


 


	
  SECTION 6.01.

  	
  Indebtedness

  	
  47

  
	
  SECTION 6.02.

  	
  Liens

  	
  48

  
	
  SECTION 6.03.

  	
  Sale and Lease-Back Transactions

  	
  50

  



 

















 


	
  SECTION 6.04.

  	
  Investments, Loans and Advances

  	
  50

  
	
  SECTION 6.05.

  	
  Mergers, Consolidations, Sales of Assets and Acquisitions

  	
  51

  
	
  SECTION 6.06.

  	
  Restricted Payments; Restrictive Agreements

  	
  52

  
	
  SECTION 6.07.

  	
  Transactions with Affiliates

  	
  53

  
	
  SECTION 6.08.

  	
  Business of the Borrower and Subsidiaries

  	
  53

  
	
  SECTION 6.09.

  	
  Other Indebtedness and Agreements

  	
  53

  
	
  SECTION 6.10.

  	
  Capital Expenditures

  	
  53

  
	
  SECTION 6.11.

  	
  Interest Coverage Ratio

  	
  55

  
	
  SECTION 6.12.

  	
  Fixed Charge Coverage Ratio

  	
  55

  
	
  SECTION 6.13.

  	
  Maximum Leverage Ratio

  	
  55

  
	
  SECTION 6.14.

  	
  Fiscal Year

  	
  55

  



 


ARTICLE VII


 


Events of Default


 


ARTICLE VIII


 


The Administrative Agent and the Collateral
Agent


 


ARTICLE IX


 


Miscellaneous


 


	
  SECTION 9.01.

  	
  Notices

  	
  60

  
	
  SECTION 9.02.

  	
  Survival of Agreement

  	
  61

  
	
  SECTION 9.03.

  	
  Binding Effect

  	
  61

  
	
  SECTION 9.04.

  	
  Successors and Assigns

  	
  61

  
	
  SECTION 9.05.

  	
  Expenses; Indemnity

  	
  65

  
	
  SECTION 9.06.

  	
  Right of Setoff

  	
  66

  
	
  SECTION 9.07.

  	
  Applicable Law

  	
  66

  
	
  SECTION 9.08.

  	
  Waivers; Amendment

  	
  66

  
	
  SECTION 9.09.

  	
  Interest Rate Limitation

  	
  67

  
	
  SECTION 9.10.

  	
  Entire Agreement

  	
  68

  
	
  SECTION 9.11.

  	
  WAIVER OF JURY TRIAL

  	
  68

  
	
  SECTION 9.12.

  	
  Severability

  	
  68

  
	
  SECTION 9.13.

  	
  Counterparts

  	
  68

  
	
  SECTION 9.14.

  	
  Headings

  	
  69

  
	
  SECTION 9.15.

  	
  Jurisdiction; Consent to Service of Process

  	
  69

  
	
  SECTION 9.16.

  	
  Confidentiality

  	
  69

  
	
  SECTION 9.17.

  	
  USA PATRIOT Act Notice

  	
  70

  



 

















 


SCHEDULES


 


	
  Schedule 1.01

  	
  -

  	
  Guarantors

  
	
  Schedule 2.01

  	
  -

  	
  Lenders and Commitments

  
	
  Schedule 3.07(b)

  	
  -

  	
  Leased Real Property

  
	
  Schedule 3.08

  	
  -

  	
  Subsidiaries

  
	
  Schedule 3.09

  	
  -

  	
  Litigation

  
	
  Schedule 3.17

  	
  -

  	
  Environmental Matters

  
	
  Schedule 3.18

  	
  -

  	
  Insurance

  
	
  Schedule 3.19(a)

  	
  -

  	
  UCC Filing Offices

  
	
  Schedule 4.01

  	
  -

  	
  Local Counsel

  
	
  Schedule 6.01

  	
  -

  	
  Existing Indebtedness

  
	
  Schedule 6.02

  	
  -

  	
  Existing Liens

  
	
  Schedule 6.07

  	
  -

  	
  Certain Affiliate Transactions

  



 


EXHIBITS


 


	
  Exhibit A

  	
   

  	
  -

  	
   

  	
  Form of Administrative Questionnaire

  
	
  Exhibit B

  	
   

  	
  -

  	
   

  	
  Form of Assignment and Acceptance

  
	
  Exhibit C

  	
   

  	
  -

  	
   

  	
  Form of Borrowing Request

  
	
  Exhibit D

  	
   

  	
  -

  	
   

  	
  Form of First Lien Guarantee Agreement

  
	
  Exhibit E

  	
   

  	
  -

  	
   

  	
  Form of Intercreditor Agreement

  
	
  Exhibit F

  	
   

  	
  -

  	
   

  	
  Form of First Lien Pledge Agreement

  
	
  Exhibit G

  	
   

  	
  -

  	
   

  	
  Form of First Lien Pledge and Security Agreement

  
	
  Exhibit H-1

  	
   

  	
  -

  	
   

  	
  Form of Opinion of Simpson Thacher & Bartlett LLP

  
	
  Exhibit H-2

  	
   

  	
  -

  	
   

  	
  Form of Local Counsel Opinion

  



 

















 


FIRST LIEN CREDIT AGREEMENT
dated as of December 16, 2005 (this “Agreement”), among WEIGHTWATCHERS.COM, INC.,
a Delaware corporation (the “Borrower”), the Lenders (as defined in Article I),
and CREDIT SUISSE, as administrative agent (in such capacity, the “Administrative Agent”)
and as collateral agent (in such capacity, the “Collateral Agent”) for the Lenders.


 


Pursuant to a Redemption Agreement dated as of June 13,
2005 (the “Redemption
Agreement”), among Artal Luxembourg S.A., a Luxembourg
corporation (the “Seller”),
the Borrower and Weight Watchers International, Inc., a Virginia corporation
(“Parent”),
the Borrower intends to redeem (the “Redemption”) all of the outstanding shares of
its common stock held by the Seller for aggregate cash consideration of
approximately $304,800,000 (the “Cash Consideration”).


 


In connection with the foregoing, the Borrower has
requested the Lenders to extend credit in the form of Loans (such term and
each other capitalized term used but not defined in this introductory statement
having the meaning given it in Article I) on the Closing Date, in an
aggregate principal amount not in excess of $170,000,000. The proceeds of the
Loans, together with cash on hand at the Borrower and the proceeds of the loans
under the Second Lien Credit Agreement, are to be used solely to pay the Cash
Consideration and related fees and expenses.


 


The Lenders are willing to extend such credit to the
Borrower on the terms and subject to the conditions set forth herein.
Accordingly, the parties hereto agree as follows:


 


ARTICLE I


 


Definitions


 


SECTION 1.01. Defined
Terms. As used in this Agreement, the following terms shall 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.


 


“Adjusted LIBO Rate” shall mean, with respect to any
Eurodollar Borrowing for any Interest Period, an interest rate per annum equal
to the product of (a) the LIBO Rate in effect for such Interest Period and
(b) Statutory Reserves.


 


“Administrative Questionnaire” shall mean an
Administrative Questionnaire in the form of Exhibit A, or such other form as
may be supplied from time to time by the Administrative Agent.


 


“Affiliate” shall mean, when used 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; provided, however, that, for purposes of Section 6.07,
the term “Affiliate” shall also include any person that directly or indirectly
owns 15% or more of any class of Equity Interests of the person specified
or that is an officer or director of the person specified.


 


“Alternate Base Rate” shall mean, 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%. If the Administrative Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to ascertain the
Federal Funds Effective Rate for any reason, including the inability or failure
of the Administrative Agent to obtain sufficient quotations in accordance with
the terms of the definition thereof, the Alternate Base Rate shall be
determined without regard to clause (b) of the preceding sentence
until the circumstances giving rise to such inability no longer exist. Any
change in the Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective on the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, as the case may be.


 


“Applicable Percentage” shall mean, for any day, (a) with
respect to any Eurodollar Loan, 2.25% and (b) with respect to any ABR Loan,
1.25%.


 


“Asset Sale” shall mean the sale, transfer or other
disposition (by way of merger, casualty, condemnation or otherwise) by the
Borrower or any of the Subsidiaries to any person other than the Borrower or
any Guarantor of (a) any Equity Interests of any of the Subsidiaries
(other than directors’ qualifying shares) or (b) any other assets of the
Borrower or any of the Subsidiaries (other than (i) inventory, damaged,
obsolete or worn out assets and Permitted Investments, in each case disposed of
in the ordinary course of business, (ii) dispositions between or among
Foreign Subsidiaries and (iii) any sale, transfer or other disposition or series of
related sales, transfers or other dispositions having a value not in excess of
$350,000).


 


“Assignment and Acceptance” shall mean an assignment and
acceptance entered into by a Lender and an assignee, and accepted by the
Administrative Agent, in the form of Exhibit B or such other form as
shall be approved by the Administrative Agent.


 


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


 


“Borrowing” shall mean Loans of the same 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.


 


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


 


“Business Day” shall mean any day other than a Saturday,
Sunday or day on which banks in New York City are authorized or required by law
to close; provided,


 


2

















 


however, 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.


 


“Capital Expenditures” shall mean, for any period, (a) the
additions to property, plant and equipment and other capital expenditures
(including capitalized web site development costs and capitalized software) of
the Borrower and its consolidated Subsidiaries that are (or should be) set
forth in a consolidated statement of cash flows of the Borrower for such period
prepared in accordance with GAAP and (b) Capital Lease Obligations or
Synthetic Lease Obligations incurred by the Borrower and its consolidated
Subsidiaries during such period, but excluding in each case any such
expenditure made to restore, replace or rebuild property to the condition of
such property immediately prior to any damage, loss, destruction or
condemnation of such property, to the extent such expenditure is made with
insurance proceeds, condemnation awards or damage recovery proceeds relating to
any such damage, loss, destruction or condemnation.


 


“Capital Lease Obligations” of any person shall mean 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.


 


“Change in Control” shall mean (a) any “person” or “group”
(as such terms are used in Rule 13d-5 under the Securities Exchange Act of
1934, as amended (the “Exchange
Act”), and Sections 13(d) and 14(d) of the
Exchange Act) of persons (other than the Permitted ARTAL Investor Group)
becomes, directly or indirectly, in a single transaction or in a related series of
transactions by way of merger, consolidation, or other business combination or
otherwise, the “beneficial owner” (as such terms is used in Rule 13d-3 of
the Exchange Act) of more than 20% of the total voting power in the aggregate
of all classes of Equity Interests of Parent then outstanding entitled to vote
generally in elections of directors of Parent; (b) at all times, as
applicable, individuals who on the Closing Date constituted the Board of
Directors of Parent (together with any new directors whose election to such
Board or whose nomination for election by the stockholders of Parent was
approved by a member of the Permitted ARTAL Investor Group or a vote of 66.67%
of the directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
Board of Directors of Parent then in office; or (c) Parent ceasing to own,
beneficially and of record, 100% of the Equity Interests of the Borrower.


 


“Change in Law” shall mean (a) the adoption of any
law, rule or regulation after the date of this Agreement, (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, for purposes of Section 2.14,
by any lending office of such Lender or by such Lender’s holding company, if
any) with any


 


3

















 


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.


 


“Closing Date” shall mean December 16, 2005.


 


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


 


“Collateral” shall mean all the “Collateral” as defined
in any Security Document.


 


“Commitment” shall mean, with respect to any Lender, such
Lender’s commitment to make a Loan hereunder as set forth on Schedule 2.01.


 


“Confidential Information Memorandum” shall mean the
Confidential Information Memorandum of the Borrower dated November 2005.


 


“Consolidated EBITDA” shall mean, 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 for such period, (ii) consolidated income tax expense for
such period, (iii) all amounts attributable to depreciation and
amortization for such period, (iv) non-recurring office relocation
expenses during such period, (v) fees and expenses associated with the
Transactions during such period, (vi) fees and compensation expenses
related to employee stock options during such period and (vii) any
non-cash charges (other than the write-down of current assets) for such period,
and minus (b) without duplication (i) all cash payments made during
such period on account of reserves, restructuring charges and other non-cash
charges added to Consolidated Net Income pursuant to clause (a)(vii) above
in a previous period and (ii) to the extent included in determining such
Consolidated Net Income, any extraordinary gains and all non-cash items of
income for such period, all determined on a consolidated basis in accordance
with GAAP. For purposes of determining the Fixed Charge Coverage Ratio, the
Interest Coverage Ratio and the Leverage Ratio as of or for the periods ended on
December 31, 2005, March 31, 2006 and June 30, 2006,
Consolidated EBITDA will be deemed to be equal to (i) for the fiscal
quarter ended March 31, 2005, $6,180,398, (ii) for the fiscal quarter
ended June 30, 2005, $11,006,852, and (iii) for the fiscal quarter
ended September 30, 2005, $11,600,295.


 


“Consolidated Fixed Charges” shall mean, for any period,
the sum of (a) Consolidated Interest Expense for such period, (b) the
aggregate amount of scheduled principal payments made during such period in
respect of long term Indebtedness of the Borrower and the Subsidiaries (other
than payments made by the Borrower or any Subsidiary to the Borrower or a
Subsidiary), (c) the aggregate amount of principal payments (other than
scheduled principal payments) made during such period in respect of long term
Indebtedness of the Borrower and the Subsidiaries, to the extent that such
payments reduced any scheduled principal payments that would have become due
within one year after the date of the applicable payment, (d) Capital
Expenditures for such period and (e) the aggregate amount of Taxes paid in
cash and (without duplication) Tax Payments in cash by the Borrower and the
Subsidiaries during such period. For purposes


 


4

















 


of
determining the Fixed Charge Coverage Ratio for the period of four consecutive
quarters ended December 31, 2005, March 31, 2006 and June 30,
2006, Consolidated Fixed Charges shall be deemed to be equal to (a) the
Consolidated Fixed Charges for the fiscal quarter ended December 31, 2005,
multiplied by 4, (b) the Consolidated Fixed Charges for the two
consecutive fiscal quarters ended March 31, 2006, multiplied by 2 and (c) the
Consolidated Fixed Charges for the three consecutive fiscal quarters ended June 30,
2006, multiplied by 4/3, respectively.


 


“Consolidated Interest Expense” shall mean, for any
period, the sum of (a) the cash interest expense (including imputed
interest expense in respect of Capital Lease Obligations and Synthetic Lease
Obligations) of the Borrower and the Subsidiaries for such period, determined
on a consolidated basis in accordance with GAAP, plus (b) 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 (c) the
aggregate amount of all dividends in respect of Disqualified Stock paid in cash
by the Borrower and the Subsidiaries during such period. For purposes of
determining the Interest Coverage Ratio for the period of four consecutive
quarters ended December 31, 2005, March 31, 2006, and June 30,
2006, Consolidated Interest Expense shall be deemed to be equal to (a) the
Consolidated Interest Expense for the fiscal quarter ended December 31,
2005, multiplied by 4, (b) the Consolidated Interest Expense for the two
consecutive fiscal quarters ended March 31, 2006, multiplied by 2 and (c) the
Consolidated Interest Expense for the three consecutive fiscal quarters ended June 30,
2006, multiplied by 4/3, respectively.


 


“Consolidated Net Income” shall mean, 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; provided that there shall be excluded (a) the
income of any Subsidiary to the extent that the declaration or payment of
dividends or similar distributions by the Subsidiary of that income is not at
the time permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, statute, rule or governmental regulation
applicable to such Subsidiary, (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, (c) the income of
any person in which any other person (other than the Borrower or a wholly owned
Subsidiary or any director holding qualifying shares in accordance with
applicable law) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to the Borrower or a wholly
owned Subsidiary by such person during such period, and (d) any
extraordinary gains attributable to sales of assets.


 


“Control” shall mean 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 ownership of voting securities, by
contract or otherwise, and the terms “Controlling” and “Controlled” shall
have meanings correlative thereto.


 


“Credit Facility” shall mean the term loan facility
provided for by this Agreement.


 


5

















 


“Current Assets” shall mean, at any time, the
consolidated current assets (other than cash and Permitted Investments) of the
Borrower and the Subsidiaries.


 


“Current Liabilities” shall mean, at any time, the
consolidated current liabilities of the Borrower and the Subsidiaries at such
time, but excluding the current portion of any long-term Indebtedness.


 


“Declined Proceeds” shall have the meaning assigned to
such term in Section 2.13(e).


 


“Default” shall mean any event or condition which upon
notice, lapse of time or both would constitute an Event of Default.


 


“Disqualified Stock” 
shall mean any Equity Interest that, by its terms (or by the terms of
any security into which it is convertible or for which it is exchangeable), or
upon the happening of any event, (a) matures (excluding any maturity as
the result of an optional redemption by the issuer thereof) or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is
redeemable at the option of the holder thereof, in whole or in part, or
requires the payment of any cash dividend or any other scheduled payment
constituting a return of capital, in each case at any time on or prior to the
first anniversary of the Maturity Date, or (b) is convertible into or
exchangeable (unless at the sole option of the issuer thereof) for (i) debt
securities or (ii) any Equity Interest referred to in clause (a) above,
in each case at any time prior to the first anniversary of the Maturity Date.


 


“dollars” or “$” shall mean lawful money of the United
States of America.


 


“Domestic Subsidiaries” shall mean all Subsidiaries
incorporated or organized under the laws of the United States of America, any
State thereof or the District of Columbia.


 


“Eligible Assignee” shall mean any commercial bank,
insurance company, investment or mutual fund or other entity that is an “accredited
investor” (as defined in Regulation D under the Securities Act of 1933, as
amended) that extends credit or invests in bank loans as one of its businesses;
provided that neither the
Borrower nor any Affiliate thereof shall be an Eligible Assignee.


 


“Environmental Laws” shall mean all former, current and
future Federal, state, local and foreign laws (including common law), treaties,
regulations, rules, ordinances, codes, decrees, judgments, directives, orders
(including consent orders), and agreements in each case, relating to protection
of the environment, natural resources, human health and safety or the presence,
Release of, or exposure to, Hazardous Materials, or the generation,
manufacture, processing, distribution, use, treatment, storage, transport,
recycling or handling of, or the arrangement for such activities with respect
to, Hazardous Materials.


 


“Environmental Liability” shall mean all liabilities,
obligations, damages, losses, claims, actions, suits, judgments, orders, fines,
penalties, fees, expenses and costs


 


6

















 


(including
administrative oversight costs, natural resource damages and remediation
costs), whether contingent or otherwise, arising out of or relating to (a) compliance
or 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
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” shall mean shares of capital stock,
partnership interests, membership interests in a limited liability company,
beneficial interests in a trust or other equity interests in any person.


 


“Equity Issuance” shall mean any issuance or sale by the
Borrower or any Subsidiary of any Equity Interests (other than Disqualified
Stock) of the Borrower or any such Subsidiary, as applicable, except in each
case for (a) any issuance or sale to the Borrower or any Subsidiary, (b) any
issuance of directors’ qualifying shares and (c) any issuance of Equity
Interests to Parent, to the extent the proceeds thereof are used substantially
concurrently, and in any event within five Business Days of such issuance, to
finance a Permitted Acquisition.


 


“ERISA” shall mean the Employee Retirement Income
Security Act of 1974, as the same may be amended from time to time.


 


“ERISA Affiliate” shall mean 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” shall mean (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 or the
withdrawal or partial withdrawal of the Borrower or any of its ERISA Affiliates
from any Plan or Multiemployer Plan; (e) the receipt by the Borrower or
any of its ERISA Affiliates from the PBGC or a plan administrator of any notice
relating to the intention to terminate any Plan or Plans or to appoint a
trustee to administer any Plan; (f) the adoption of any amendment to a
Plan that would require the provision of security pursuant to Section 401(a)(29)
of the Code or Section 307 of ERISA; (g) the receipt by the Borrower
or any of its ERISA Affiliates of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any of its ERISA Affiliates 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; (h) the occurrence of a “prohibited
transaction” with


 


7

















 


respect
to which the Borrower or any of the Subsidiaries is a “disqualified person”
(within the meaning of Section 4975 of the Code) or with respect to which
the Borrower or any such Subsidiary could otherwise be liable; or (i) any
Foreign Benefit Event.


 


“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” shall have the meaning assigned to
such term in Article VII.


 


“Excess Cash Flow” shall mean, for any fiscal year of the
Borrower, the excess of (a) the sum, without duplication, of (i) Consolidated
EBITDA for such fiscal year and (ii) reductions to noncash working capital
of the Borrower and the Subsidiaries for such fiscal year (i.e., the decrease, if any, in Current
Assets minus Current Liabilities from the beginning to the end of such fiscal
year) over (b) the sum, without duplication, of (i) the amount of any
Taxes and Tax Payments payable in cash by the Borrower and the Subsidiaries
with respect to such fiscal year, (ii) Consolidated Interest Expense for
such fiscal year payable in cash, (iii) Capital Expenditures made in cash
in accordance with Section 6.10 during such fiscal year, except to the extent
financed with the proceeds of Indebtedness, equity issuances, casualty
proceeds, condemnation proceeds or other proceeds that would not be included in
Consolidated EBITDA, (iv) permanent repayments of Indebtedness (other than
(x) mandatory prepayments of Loans under Section 2.13 and
(y) Voluntary Prepayments) made by the Borrower and the Subsidiaries
during such fiscal year, but only to the extent that such prepayments by their
terms cannot be reborrowed or redrawn and do not occur in connection with a
refinancing of all or any portion of such Indebtedness, (v) additions to
noncash working capital for such fiscal year (i.e.,
the increase, if any, in Current Assets minus Current Liabilities from the
beginning to the end of such fiscal year) and (vi) investments by the
Borrower and the Subsidiaries made in compliance with Section 6.04(g).


 


“Excluded Taxes” shall mean, with respect to the
Administrative Agent, any Lender or any other recipient of any payment to be
made by or on account of any obligation of the Borrower hereunder, (a) income
or franchise taxes imposed on (or measured by) its net income by the United
States of America, or by the jurisdiction under the laws of which such
recipient is organized or in which its principal office is located or, in the
case of any Lender, in which its applicable lending office is located, (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 2.21(a)), any withholding tax that is imposed
on amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party to this Agreement (or designates a new lending office) or is
attributable to such Foreign Lender’s failure to comply with Section 2.20(e),
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 such
withholding tax pursuant to Section 2.20(a).


 


8

















 


“Federal Funds Effective Rate” shall mean, 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 the day for such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.


 


“Fee Letter” shall mean the Fee Letter dated November 2,
2005, between the Borrower and the Administrative Agent.


 


“Fees” shall have the meaning assigned to such term in Section 2.05.


 


“Financial Officer” of any person shall mean the chief
financial officer, principal accounting officer, treasurer or controller of
such person.


 


“Fixed Charge Coverage Ratio” shall mean, for any period,
the ratio of (a) Consolidated EBITDA for such period to (b) Consolidated
Fixed Charges for such period.


 


“Foreign Benefit Event” shall mean, with respect to any
Foreign Pension Plan, (a) the existence of unfunded liabilities in excess
of the amount permitted under any applicable law, or in excess of the amount
that would be permitted absent a waiver from a Governmental Authority, (b) the
failure to make the required contributions or payments, under any applicable
law, on or before the due date for such contributions or payments, (c) the
receipt of a notice by a Governmental Authority relating to the intention to
terminate any such Foreign Pension Plan or to appoint a trustee or similar
official to administer any such Foreign Pension Plan, or alleging the
insolvency of any such Foreign Pension Plan, (d) the incurrence of any
material liability by the Borrower or any Subsidiary under applicable law on
account of the complete or partial termination of such Foreign Pension Plan or
the complete or partial withdrawal of any participating employer therein, or (e) the
occurrence of any transaction that is prohibited under any applicable law and
that could reasonably be expected to result in the incurrence of any liability
by the Borrower or any of the Subsidiaries, or the imposition on the Borrower
or any of the Subsidiaries of any fine, excise tax or penalty resulting from
any noncompliance with any applicable law, in each case in an amount that would
result in material liability.


 


“Foreign Lender” shall mean 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 Pension Plan” shall mean any benefit plan that
under applicable law is required to be funded through a trust or other funding
vehicle other than a trust or funding vehicle maintained by a Governmental
Authority.


 


“Foreign Subsidiary” shall mean any Subsidiary that is
not a Domestic Subsidiary.


 


9

















 


“GAAP” shall mean United States generally accepted
accounting principles applied on a consistent basis.


 


“Governmental Authority” shall mean any Federal, state,
local or foreign court or governmental agency, authority, instrumentality or
regulatory body.


 


“Granting Lender” shall have the meaning assigned to such
term in Section 9.04(i).


 


“Grantors” shall mean (a) with respect to the Pledge
Agreement, Parent and (b) with respect to the Pledge and Security
Agreement, the Borrower.


 


“Guarantee” of or by any person shall mean any
obligation, contingent or otherwise, of such person 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
such person, 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 of such Indebtedness or other obligation, (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 of such
Indebtedness or other obligation or (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; provided, however, that the term “Guarantee” shall
not include endorsements for collection or deposit in the ordinary course of
business.


 


“Guarantee Agreement” shall mean the First Lien Guarantee
Agreement, substantially in the form of Exhibit D, among the
Borrower, the Subsidiaries party thereto and the Collateral Agent for the
benefit of the Secured Parties.


 


“Guarantor” shall mean each Subsidiary listed on Schedule 1.01,
and each other Subsidiary that is or becomes a party to the Guarantee
Agreement.


 


“Hazardous Materials” shall mean (a) any petroleum
products or byproducts and all other hydrocarbons, coal ash, radon gas,
asbestos, urea formaldehyde foam insulation, volatile organic compounds,
polychlorinated biphenyls, chlorofluorocarbons and all other ozone-depleting
substances and (b) any other chemical, material, substance or waste that
is prohibited, limited or regulated by or pursuant to any Environmental Law.


 


“Hedging Agreement” shall mean any interest rate
protection agreement, foreign currency exchange agreement, commodity price
protection agreement or other interest or currency exchange rate or commodity
price hedging arrangement.


 


“Indebtedness” of any person shall mean, without
duplication, (a) all obligations of such person for borrowed money or with
respect to deposits or advances of any kind, (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


 


10

















 


customarily
paid, (d) all obligations of such person under conditional sale or other title
retention agreements relating to property or assets purchased by such person, (e) all
obligations of such person issued or assumed as the deferred purchase price of
property or services (excluding trade accounts payable and accrued obligations
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 obligations secured thereby have
been assumed, (g) all Guarantees by such person of Indebtedness of others,
(h) all Capital Lease Obligations and Synthetic Lease Obligations of such
person, (i) all obligations of such person as an account party in respect
of letters of credit, (j) all obligations of such person in respect of
bankers’ acceptances and (k) all obligations of such person in respect of
Disqualified Stock of such person. The Indebtedness of any person shall include
the Indebtedness of any partnership in which such person is a general partner.


 


“Indemnified Taxes” shall mean Taxes other than Excluded
Taxes.


 


“Interest Coverage Ratio” shall mean, for any period, the
ratio of (a) Consolidated EBITDA for such period to (b) Consolidated
Interest Expense for such period.


 


“Intercreditor Agreement” shall mean the Intercreditor
Agreement dated as of the date hereof, substantially in the form of Exhibit E,
among the Borrower, Parent, the Collateral Agent and the Second Lien Collateral
Agent (as defined therein).


 


“Interest Payment Date” shall mean (a) with respect
to any ABR 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 that would have been an Interest Payment Date
had successive Interest Periods of three months’ duration been applicable to
such Borrowing.


 


“Interest Period” shall mean, with respect to any
Eurodollar Borrowing, the period commencing on the date of such Borrowing and
ending on the numerically corresponding day (or, if there is no numerically
corresponding day, on the last day) in the calendar month that is one, two,
three or six (or nine or twelve, if agreed to by the Lenders) months
thereafter, as the Borrower may elect; provided,
however, that 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. Interest shall accrue from
and including the first day of an Interest Period to but excluding the last day
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.


 


11

















 


“Lenders” shall mean (a) the persons listed on Schedule 2.01
(other than any such person that has ceased to be a party hereto pursuant to an
Assignment and Acceptance) and (b) any person that has become a party
hereto pursuant to an Assignment and Acceptance.


 


“Leverage Ratio” shall mean, on any date, the ratio of
Total Debt on such date to Consolidated EBITDA for the period of four consecutive
fiscal quarters most recently ended on or prior to such date. In any period of
four consecutive fiscal quarters in which a Permitted Acquisition occurs, the
Leverage Ratio shall be determined on a pro forma basis in accordance with Section 1.03.


 


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


 


“Lien” shall mean, with respect to any asset, (a) any
mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest
in or on such asset, and (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset.


 


“Loan Documents” shall mean this Agreement, the Security
Documents and the promissory notes, if any, executed and delivered pursuant to Section 2.04(e).


 


“Loan Parties” shall mean the Borrower and the Guarantors.


 


“Loans” shall mean the term loans made by the Lenders to
the Borrower pursuant to Section 2.01.


 


“Margin Stock” shall have the meaning assigned to such
term in Regulation U.


 


“Material Adverse Effect” shall mean (a) a
materially adverse effect on the business, assets, liabilities, operations,
condition (financial or otherwise) or operating results of the Borrower and the
Subsidiaries, taken as a whole, (b) a material impairment of the ability
of the Borrower or any other Loan Party to perform any of its material
obligations under any Loan Document to which it is or will be a party or (c) a
material


 


12

















 


impairment
of the rights of or benefits available to the Lenders under any Loan Document.


 


“Material Indebtedness” shall mean Indebtedness (other
than the Loans), or obligations in respect of one or more Hedging Agreements,
of any one or more of the Borrower and the Subsidiaries in an aggregate
principal amount exceeding $2,500,000. For purposes of determining Material
Indebtedness, the “principal amount” of the obligations of the Borrower or any
Subsidiary in respect of any Hedging 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 Hedging Agreement were
terminated at such time.


 


“Maturity Date” shall mean December 16, 2010.


 


“Moody’s” shall mean Moody’s Investors Service, Inc.,
or any successor thereto.


 


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


 


“Net Cash Proceeds” shall mean (a) with respect to
any Asset Sale, the cash proceeds (including cash proceeds subsequently
received (as and when received) in respect of noncash consideration initially
received), net of (i) selling expenses (including reasonable broker’s fees
or commissions, legal fees, transfer and similar taxes and the Borrower’s good
faith estimate of income taxes paid or payable in connection with such sale), (ii) amounts
provided as a reserve, in accordance with GAAP, against any liabilities under
any indemnification obligations or purchase price adjustment associated with
such Asset Sale (provided that,
to the extent and at the time any such amounts are released from such reserve,
such amounts shall constitute Net Cash Proceeds) and (iii) the principal
amount, premium or penalty, if any, interest and other amounts on any
Indebtedness for borrowed money which is secured by the asset sold in such
Asset Sale and which is required to be repaid with such proceeds (other than
any such Indebtedness assumed by the purchaser of such asset); provided, however,
that, if (x) the Borrower intends to reinvest such proceeds in productive
assets of a kind then used or usable in the business of the Borrower and its
Subsidiaries within 365 days of receipt of such proceeds and (y) no
Default or Event of Default shall have occurred and shall be continuing at the
time of receipt of such proceeds, such proceeds shall not constitute Net Cash
Proceeds except to the extent not so used at the end of such 365-day period, at
which time such proceeds shall be deemed to be Net Cash Proceeds; and (b) with
respect to any issuance or incurrence of Indebtedness or any Equity Issuance,
the cash proceeds thereof, net of all taxes and customary fees, commissions,
costs and other expenses incurred in connection therewith.


 


“Obligations” shall mean all obligations defined as “Obligations”
in the Pledge and Security Agreement and the other Security Documents.


 


“Other Taxes” shall mean any and all present or future
stamp or documentary taxes or any other excise or property taxes, charges or similar
levies arising from any


 


13

















 


payment
made under any Loan Document or from the execution, delivery or enforcement of,
or otherwise with respect to, any Loan Document.


 


“Parent” shall have the meaning assigned to such term in
the introductory statement to this Agreement.


 


“Parent Credit
Agreement” shall
mean the Fifth Amended and Restated Credit Agreement dated as of January 21,
2004, among Parent, the lenders party thereto, Credit Suisse, as syndication
agent and a lead arranger, and The Bank of Nova Scotia, as administrative agent
and a lead arranger, as amended from time to time.


 


“PBGC” shall mean the Pension Benefit Guaranty
Corporation referred to and defined in ERISA.


 


“Perfection Certificate” shall mean the Perfection
Certificate substantially in the form of Exhibit B to the Pledge and
Security Agreement.


 


 “Permitted Acquisition”
shall have the meaning assigned to such term in Section 6.04(g).


 


“Permitted ARTAL Investor Group” means the Seller or any
of its direct or indirect wholly owned Subsidiaries and ARTAL Group S.A., a
Luxembourg corporation, or any of its direct or indirect wholly owned
Subsidiaries.


 


“Permitted Investments” shall mean:


 


(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, the highest credit rating obtainable from S&P or from Moody’s;


 


(c) investments in certificates of deposit,
banker’s acceptances and time deposits maturing within one year from the date
of acquisition thereof issued or guaranteed by or placed with, and money market
deposit accounts issued or offered by, the Administrative Agent or any domestic
office of any commercial bank organized under the laws of the United States of
America or any State thereof that 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 of
clause (c) above;


 


14

















 


(e) investments in “money market funds” within
the meaning of Rule 2a-7 of the Investment Company Act of 1940, as
amended, substantially all of whose assets are invested in investments of the
type described in clauses (a) through (d) above;


 


(f) investments in so-called “auction rate”
securities rated AAA or higher by S&P or Aaa or higher by Moody’s and which
have a reset date not more than 90 days from the date of acquisition thereof;
and


 


(g) other short-term investments utilized by
Foreign Subsidiaries in accordance with normal investment practices for cash
management in investments of a type analogous to the foregoing.


 


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


 


“Plan” shall mean 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 307 of ERISA, and in
respect of which the Borrower 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.


 


“Pledge Agreement” shall mean the First Lien Pledge
Agreement, substantially in the form of Exhibit F, between Parent and
the Collateral Agent for the benefit of the Secured Parties.


 


“Pledge and Security Agreement” shall mean the First Lien
Pledge and Security Agreement, substantially in the form of Exhibit G,
between the Borrower and the Collateral Agent for the benefit of the Secured
Parties.


 


“Pledged Collateral” shall mean (a) all the “Collateral”
as defined in the Pledge Agreement and (b) all the “Pledged Collateral” as
defined in the Pledge and Security Agreement.


 


“Prime Rate” shall mean the rate of interest per annum
determined from time to time by Credit Suisse as its prime rate in effect at
its principal office in New York City and notified to the Borrower.


 


“Redemption” shall have the meaning assigned to such term
in the introductory statement to this Agreement.


 


“Redemption Agreement” shall have the meaning assigned to
such term in the introductory statement to this Agreement.


 


“Register” shall have the meaning assigned to such term
in Section 9.04(d).


 


“Regulation T” shall mean Regulation T of the Board
as from time to time in effect and all official rulings and interpretations
thereunder or thereof.


 


15

















 


“Regulation U” shall mean Regulation U of the Board
as from time to time in effect and all official rulings and interpretations
thereunder or thereof.


 


“Regulation X” shall mean Regulation X of the
Board as from time to time in effect and all official rulings and
interpretations thereunder or thereof.


 


“Related Fund” shall mean, with respect to any Lender
that is a fund or commingled investment vehicle that invests in bank loans, any
other fund that invests in bank loans and is managed or advised by the same
investment advisor as such Lender or by an Affiliate of such investment
advisor.


 


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


 


“Release” shall mean 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.


 


“Repayment Date” shall have the meaning given such term
in Section 2.11.


 


“Required Lenders” shall mean, at any time, Lenders
having Loans and Commitments representing more than 50% of the sum of all Loans
and Commitments at such time.


 


“Responsible Officer” of any person shall mean any
executive officer or Financial Officer of such person and any other officer or
similar official thereof responsible for the administration of the obligations
of such person in respect of this Agreement.


 


“Restricted Indebtedness” shall mean Indebtedness of the
Borrower or any Subsidiary, the payment, prepayment, repurchase or defeasance
of which is restricted under Section 6.09(b).


 


“Restricted Payment” shall mean any dividend or other
distribution (whether in cash, securities or other property) with respect to
any Equity Interests in 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,
cancelation or termination of any Equity Interests in the Borrower or any
Subsidiary or any option, warrant or other right to acquire any such Equity
Interests in the Borrower or any Subsidiary; provided,
however, that the Redemption shall not be a Restricted Payment.


 


“Second Lien
Credit Agreement” shall
mean the Second Lien Credit Agreement dated as of the date hereof among the
Borrower, the lenders from time to time party thereto and Credit Suisse, as
administrative agent and collateral agent, as the same may be amended,
supplemented or otherwise modified from time to time.


 


16

















 


“Second Lien Loan Documents” shall mean the “Loan
Documents”, as defined in the Second Lien Credit Agreement, other than the
Intercreditor Agreement.


 


 “Second Priority Liens”
shall have the meaning assigned to such term in the Intercreditor Agreement.


 


“Secured Parties” shall have the meaning assigned to such
term in any Security Document.


 


“Security Documents” shall mean the Pledge and Security
Agreement, the Guarantee Agreement, the Pledge Agreement, the Intercreditor
Agreement and each of the security agreements, mortgages and other instruments
and documents executed and delivered pursuant to any of the foregoing or
pursuant to Section 5.11.


 


“Seller” shall have the meaning assigned to such term in
the introductory statement to this Agreement.


 


“SPC” shall have the meaning assigned to such term in Section 9.04(i).


 


“S&P” shall mean Standard & Poor’s Ratings
Service, or any successor thereto.


 


“Statutory Reserves” shall mean 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 and any other banking authority, domestic
or foreign, to which the Administrative Agent or any Lender (including any
branch, Affiliate, or other fronting office making or holding a Loan) is
subject for Eurocurrency Liabilities (as defined in Regulation D of the
Board). Eurodollar Loans shall be deemed to constitute Eurocurrency Liabilities
as defined in Regulation D of the Board) 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. Statutory Reserves shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.


 


“subsidiary” shall mean, with respect to any person
(herein referred to as the “parent”), any corporation, partnership, limited
liability company, association or other business entity (a) of which
securities or other ownership interests representing more than 50% of the
equity or more than 50% of the ordinary voting power or more than 50% of the
general partnership interests are, at the time any determination is being made,
owned, Controlled or held, or (b) that is, at the time any determination
is made, otherwise Controlled, by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the parent.


 


“Subsidiary” shall mean any subsidiary of the Borrower.


 


“Synthetic Lease” shall mean, as to any person, any lease
(including leases that may be terminated by the lessee at any time) of any
property (whether real, personal or


 


17

















 


mixed)
(a) that is accounted for as an operating lease under GAAP and (b) in
respect of which the lessee retains or obtains ownership of the property so
leased for U.S. federal income tax purposes, other than any such lease under
which such person is the lessor.


 


“Synthetic Lease Obligations” shall mean, as to any
person, an amount equal to the capitalized amount of the remaining lease
payments under any Synthetic Lease that would appear on a balance sheet of such
person in accordance with GAAP if such obligations were accounted for as
Capital Lease Obligations.


 


“Synthetic Purchase Agreement” shall mean any swap,
derivative or other agreement or combination of agreements pursuant to which
the Borrower or any Subsidiary is or may become obligated to make (a) any
payment in connection with a purchase by any third party from a person other
than the Borrower or any Subsidiary of any Equity Interest or Restricted
Indebtedness or (b) any payment (other than on account of a permitted
purchase by it of any Equity Interest or Restricted Indebtedness) the amount of
which is determined by reference to the price or value at any time of any
Equity Interest or Restricted Indebtedness; provided
that no phantom stock or similar plan providing for payments only to current or
former directors, officers or employees of the Borrower or the Subsidiaries (or
to their heirs or estates) shall be deemed to be a Synthetic Purchase
Agreement.


 


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


 


“Tax Payments” shall mean net payments in cash by the
Borrower to Parent in respect of Taxes attributable to the operations of the
Borrower and the Subsidiaries pursuant to tax sharing arrangements in effect
from time to time.


 


“Total Debt” shall mean, at any time, the total
Indebtedness of the Borrower and the Subsidiaries at such time (excluding
Indebtedness of the type described in clause (i) of the definition of
such term, except to the extent of any unreimbursed drawings thereunder) minus
the amount of cash and Permitted Investments held by the Borrower and the
Subsidiaries as of such date, in an aggregate amount not to exceed $5,500,000.


 


“Transactions” shall mean, collectively, (a) the
performance by the Borrower of the Redemption Agreement and the consummation of
the transactions contemplated thereby, (b) the execution, delivery and
performance by the Loan Parties of the Loan Documents to which they are or will
be a party and the making of the Borrowings hereunder, (c) the execution,
delivery and performance of the Second Lien Credit Agreement by the parties
thereto and the making of the borrowings thereunder, (d) the execution,
delivery and performance by Parent of the Pledge Agreement and the pledge of
the Equity Interest of the Borrower thereunder and (e) the payment of
related fees and expenses.


 


“Type”, when used in respect of any Loan or Borrowing,
shall refer to the Rate by reference to which interest on such Loan or on the
Loans comprising such Borrowing is


 


18

















 


determined.
For purposes hereof, the term “Rate” shall mean the Adjusted LIBO Rate and the
Alternate Base Rate.


 


“USA PATRIOT Act” shall mean The Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26,
2001)).


 


“Voluntary Prepayment” shall mean a prepayment of
principal of Loans pursuant to Section 2.12 in any year to the extent that
such prepayment reduces the scheduled installments of principal due in respect
of Loans as set forth in Section 2.11 in any subsequent year.


 


“wholly owned Subsidiary” of any person shall mean a
subsidiary of such person of which securities (except for directors’ qualifying
shares) or other ownership interests representing 100% of the Equity Interests
are, at the time any determination is being made, owned, Controlled or held by
such person or one or more wholly owned Subsidiaries of such person or by such
person and one or more wholly owned Subsidiaries of such person.


 


“Withdrawal Liability” shall mean 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. Terms
Generally. The definitions in Section 1.01 shall apply
equally to both 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”; and
the words “asset” and “property” shall be construed as having 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. All
references herein to Articles, Sections, Exhibits and Schedules shall be deemed
references to Articles and Sections of, and Exhibits and Schedules to, this
Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (a) any reference in this Agreement to any Loan
Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time and (b) all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided, however, that if the Borrower notifies the
Administrative Agent that the Borrower wishes to amend any covenant in Article VI
or any related definition to eliminate the effect of any change in GAAP
occurring after the date of this Agreement on the operation of such covenant
(or if the Administrative Agent notifies the Borrower that the Required Lenders
wish to amend Article VI or any related definition for such purpose), then
the Borrower’s compliance with such covenant shall be determined on the basis
of GAAP in effect immediately before the relevant change in GAAP became
effective, until either such notice is withdrawn or such covenant is amended in
a manner satisfactory to the Borrower and the Required Lenders.


 


19

















 


SECTION 1.03. Pro
Forma Calculations. With respect to any period of four
consecutive fiscal quarters during which any Permitted Acquisition occurs (and
for purposes of determining whether an acquisition is a Permitted Acquisition
under Section 6.04(g) or would result in a Default or an Event of
Default), the Leverage Ratio shall be calculated with respect to such period on
a pro forma basis after giving effect to such Permitted Acquisition (including,
without duplication, (a) all pro forma adjustments permitted or required
by Article 11 of Regulation S-X under the Securities Act of 1933, as
amended, and (b) pro forma adjustments for cost savings (net of continuing
associated expenses) to the extent such cost savings are factually supportable
and have been realized or are reasonably expected to be realized within
12 months following such Permitted Acquisition, provided that all such adjustments shall be set forth in a
reasonably detailed certificate of a Financial Officer of the Borrower), using,
for purposes of making such calculations, the historical financial statements
of the Borrower and the Subsidiaries which shall be reformulated as if such
Permitted Acquisition, and any other Permitted Acquisitions that have been
consummated during the period, had been consummated on the first day of such
period.


 


SECTION 1.04. Classification
of Loans and Borrowings. For
purposes of this Agreement, Loans and Borrowings may be classified and
referred to by Type (e.g., a “Eurocurrency
Loan” or a “Eurocurrency Borrowing”).


 


ARTICLE II


 


The Loans


 


SECTION 2.01. Commitments.
Subject to the terms and conditions and relying upon the representations and
warranties herein set forth, each Lender agrees, severally and not jointly, to
make a Loan to the Borrower on the Closing Date in a principal amount not
to exceed its Commitment. Amounts paid or prepaid in respect of Loans may not
be reborrowed.


 


SECTION 2.02. Loans.
(a)  Each Loan shall be made as part of a Borrowing consisting of
Loans made by the Lenders ratably in accordance with their Commitments; provided, however, that the failure of any
Lender to make any Loan shall not in itself relieve any other Lender of its
obligation to lend hereunder (it being understood, however, that no Lender
shall be responsible for the failure of any other Lender to make any Loan
required to be made by such other Lender). The Loans comprising any Borrowing
shall be in an aggregate principal amount that is an integral multiple of
$1,000,000 and not less than $5,000,000.


 


(b)   Subject to Sections
2.08 and 2.15, each Borrowing shall be comprised entirely of ABR Loans or
Eurodollar Loans as the Borrower may request pursuant to Section 2.03.
Each Lender may at its option 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. Borrowings of more than one Type may be
outstanding at the same time; provided,
however, that the Borrower shall not be


 


20

















 


entitled
to request any Borrowing that, if made, would result in more than three
Eurodollar Borrowings outstanding hereunder at any time. For purposes of the
foregoing, Borrowings having different Interest Periods, regardless of whether
they commence on the same date, shall be considered separate Borrowings.


 


(c)   Each Lender shall make
the Loan to be made by it hereunder on the Closing Date by wire transfer of
immediately available funds to such account in New York City as the
Administrative Agent may designate not later than 1:00 p.m., New York
City time, and the Administrative Agent shall promptly credit the amounts so
received to an account designated by the Borrower in the Borrowing Request or,
if the Borrowing shall not occur on such date because any condition precedent
herein specified shall not have been met, return the amounts so received to the
respective Lenders.


 


(d)   Unless the
Administrative Agent shall have received notice from a Lender prior to the date
of Borrowing that such Lender will not make available to the Administrative
Agent such Lender’s portion of the Borrowing, the Administrative Agent may assume
that such Lender has made such portion available to the Administrative Agent on
the date of the Borrowing in accordance with paragraph (c) above and
the Administrative Agent may, in reliance upon such assumption, make available
to the Borrower on such date a corresponding amount. If the Administrative
Agent shall have so made funds available then, to the extent that such Lender
shall not have made such portion available to the Administrative Agent, such
Lender and the Borrower severally agree to repay to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Borrower to but
excluding the date such amount is repaid to the Administrative Agent at (i) in
the case of the Borrower, a rate per annum equal to the interest rate
applicable at the time to the Loans comprising such Borrowing and (ii) in
the case of such Lender, a rate determined by the Administrative Agent to
represent its cost of overnight or short-term funds (which determination shall
be conclusive absent manifest error). If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount shall constitute
such Lender’s Loan as part of such Borrowing for purposes of this
Agreement.


 


SECTION 2.03. Borrowing
Procedure. In order to request the 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 proposed Borrowing, and (b) in
the case of an ABR Borrowing, not later than 12:00 (noon), New York City
time, one Business Day before the proposed Borrowing. A telephonic Borrowing
Request shall be irrevocable, and shall be confirmed promptly by hand delivery
or fax to the Administrative Agent of a written Borrowing Request and shall
specify the following information: (i) whether such Borrowing is to be a
Eurodollar Borrowing or an ABR Borrowing; (ii) the date of such Borrowing
(which shall be a Business Day); (iii) the number and location of the
account to which funds are to be disbursed; (iv) the amount of such
Borrowing; and (v) if such Borrowing is to be a Eurodollar Borrowing, the
Interest Period with respect thereto. If no election as to the Type of
Borrowing is specified in any such notice, then the requested Borrowing shall
be an ABR Borrowing. If no Interest Period with respect to any Eurodollar
Borrowing is


 


21

















 


specified
in such notice, then the Borrower shall be deemed to have selected an Interest
Period of one month’s duration. The Administrative Agent shall promptly advise
the applicable Lenders of any notice given pursuant to this Section 2.03
(and the contents thereof), and of each Lender’s portion of the requested
Borrowing.


 


SECTION 2.04. Evidence
of Debt; Repayment of Loans. (a)  The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
each Lender the principal amount of each Loan of such Lender as provided in Section 2.11.


 


(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 the
Loan made by such Lender hereunder, including the amounts of principal and
interest payable and paid to such Lender from time to time under this
Agreement.


 


(c)   The Administrative
Agent shall maintain accounts in which it will record (i) the amount of
each Loan made hereunder, the Type thereof and, if applicable, 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 from the Borrower or any Guarantor and each Lender’s share
thereof.


 


(d)   The entries made in
the accounts maintained pursuant to paragraphs (b) and (c) above
shall be prima facie evidence of
the existence and amounts of the obligations therein recorded; provided, however,
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 obligations of
the Borrower to repay the Loans in accordance with their terms.


 


(e)   Any Lender may request
that Loans made by it hereunder be evidenced by a promissory note. In such
event, the Borrower shall execute and deliver to such Lender a promissory note
payable to such Lender and its registered assigns and in a form and
substance reasonably acceptable to the Administrative Agent and the Borrower.
Notwithstanding any other provision of this Agreement, in the event any Lender
shall request and receive such a promissory note, the interests represented by
such note shall at all times (including after any assignment of all or part of
such interests pursuant to Section 9.04) be represented by one or more
promissory notes payable to the payee named therein or its registered assigns.


 


SECTION 2.05. Fees.
The Borrower agrees to pay to the Administrative Agent, for its own account,
the fees (the “Fees”)
set forth in the Fee Letter at the times and in the amounts specified therein.
Once paid, none of the Fees shall be refundable under any circumstances.


 


SECTION 2.06. Interest
on Loans. (a)  Subject to the provisions of Section 2.07,
the Loans comprising each ABR Borrowing shall bear interest (computed on
the basis of the actual number of days elapsed over a year of 365 or
366 days, as the


 


22

















 


case
may be, when the Alternate Base Rate is determined by reference to the
Prime Rate and over a year of 360 days at all other times and calculated
from and including the date of such Borrowing to but excluding the date of
repayment thereof) at a rate per annum equal to the Alternate Base Rate plus
the Applicable Percentage.


 


(b)   Subject to the
provisions of Section 2.07, the Loans comprising each Eurodollar Borrowing
shall bear interest (computed on the basis of the actual number of days elapsed
over a year of 360 days) at a rate per annum equal to the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable
Percentage.


 


(c)   Interest on each Loan
shall be payable on the Interest Payment Dates applicable to such Loan except
as otherwise provided in this Agreement. The applicable Alternate Base Rate or
Adjusted LIBO Rate for each Interest Period or day within an Interest Period,
as the case may be, shall be determined by the Administrative Agent, and
such determination shall be conclusive absent manifest error.


 


SECTION 2.07. Default
Interest. If the Borrower shall default in the payment of any
principal of or interest on any Loan or any other amount due hereunder, by
acceleration or otherwise, or under any other Loan Document, then, until such
defaulted amount shall have been paid in full, to the extent permitted by law,
such amount shall bear interest (after as well as before judgment), payable on
demand, (a) in the case of principal, at the rate otherwise applicable to
such Loan pursuant to Section 2.06 plus 2.00% per annum and (b) in
all other cases, at a rate per annum (computed on the basis of the actual
number of days elapsed over a year of 365 or 366 days, as the case may be,
when determined by reference to the Prime Rate and over a year of 360 days at
all other times) equal to the rate that would be applicable to an ABR Loan plus
2.00% per annum.


 


SECTION 2.08. Alternate
Rate of Interest. In the event, and on each occasion, that on
the day two Business Days prior to the commencement of any Interest Period for
a Eurodollar Borrowing the Administrative Agent shall have determined that
dollar deposits in the principal amounts of the Loans comprising such Borrowing
are not generally available in the London interbank market, or that the rates
at which such dollar deposits are being offered will not adequately and fairly
reflect the cost to any Lender of making or maintaining its Eurodollar Loan
during such Interest Period, or that reasonable means do not exist for
ascertaining the Adjusted LIBO Rate, the Administrative Agent shall, as soon as
practicable thereafter, give written or fax notice of such determination to the
Borrower and the Lenders. In the event of any such determination, until the
Administrative Agent shall have advised the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, any request by the
Borrower for a Eurodollar Borrowing pursuant to Section 2.10 shall be
deemed to be a request for an ABR Borrowing. Each determination by the
Administrative Agent under this Section 2.08 shall be conclusive absent
manifest error.


 


SECTION 2.09. Termination
and Reduction of Commitments. (a)  The Commitments shall
automatically terminate upon the earlier to occur of (i)  the making of
the Loans on the Closing Date and (ii)  5:00 p.m., New York City
time, on December 30, 2005.


 


23

















 


(b)   Upon at least three
Business Days’ prior irrevocable written or fax notice to the Administrative
Agent, the Borrower may at any time in whole permanently terminate, or
from time to time in part permanently reduce, the Commitments; provided, however,
that each partial reduction of the Commitments shall be in an integral multiple
of $1,000,000.


 


(c)   Each reduction in the
Commitments hereunder shall be made ratably among the Lenders in accordance
with their respective Commitments.


 


SECTION 2.10. Conversion
and Continuation of Borrowings. The Borrower shall have the
right at any time upon prior irrevocable notice to the Administrative Agent by
telephone (a) not later than 12:00 (noon), New York City time, one
Business Day prior to conversion, to convert any Eurodollar Borrowing into an
ABR Borrowing, (b) not later than 12:00 (noon), New York City time,
three Business Days prior to conversion or continuation, to convert any ABR
Borrowing into a Eurodollar Borrowing or to continue any Eurodollar Borrowing
as a Eurodollar Borrowing for an additional Interest Period, and (c) not later
than 12:00 (noon), New York City time, three Business Days prior to
conversion, to convert the Interest Period with respect to any Eurodollar
Borrowing to another permissible Interest Period, subject in each case to the
following:


 


(i)  each conversion or continuation shall be
made pro rata among the Lenders in accordance with the respective principal
amounts of the Loans comprising the converted or continued Borrowing;


 


(ii)  if less than all the outstanding
principal amount of any Borrowing shall be converted or continued, then each
resulting Borrowing shall satisfy the limitations specified in
Sections 2.02(a) and 2.02(b) regarding the principal amount and
maximum number of Borrowings of the relevant Type;


 


(iii)  each conversion shall be effected by
each Lender and the Administrative Agent by recording for the account of such
Lender the new Loan of such Lender resulting from such conversion and reducing
the Loan (or portion thereof) of such Lender being converted by an equivalent
principal amount; accrued interest on any Eurodollar Loan (or portion thereof)
being converted shall be paid by the Borrower at the time of conversion;


 


(iv)  if any Eurodollar Borrowing is converted
at a time other than the end of the Interest Period applicable thereto, the Borrower
shall pay, upon demand, any amounts due to the Lenders pursuant to Section 2.16;


 


(v)  any portion of a Borrowing maturing or
required to be repaid in less than one month may not be converted into or
continued as a Eurodollar Borrowing;


 


(vi)  any portion of a Eurodollar Borrowing
that cannot be converted into or continued as a Eurodollar Borrowing by reason
of the immediately preceding clause shall be automatically converted at the end
of the Interest Period in effect for such Borrowing into an ABR Borrowing;


 


24

















 


(vii)  no Interest Period may be selected
for any Eurodollar Borrowing that would end later than a Repayment Date
occurring on or after the first day of such Interest Period if, after giving
effect to such selection, the aggregate outstanding amount of (A) the
Eurodollar Borrowings with Interest Periods ending on or prior to such
Repayment Date and (B) the ABR Borrowings would not be at least equal to
the principal amount of Borrowings to be paid on such Repayment Date; and


 


(viii)  upon notice to the Borrower from the
Administrative Agent given at the request of the Required Lenders, after the
occurrence and during the continuance of a Default or Event of Default, no
outstanding Loan may be converted into, or continued as, a Eurodollar
Loan.


 


Each telephonic request pursuant to this Section 2.10
shall be confirmed promptly in writing by hand delivery or fax to the
Administrative Agent, shall be irrevocable and shall refer to this Agreement
and specify (i) the identity and amount of the Borrowing that the Borrower
requests be converted or continued, (ii) whether such Borrowing is to be
converted to or continued as a Eurodollar Borrowing or an ABR Borrowing, (iii) if
such notice requests a conversion, the date of such conversion (which shall be
a Business Day) and (iv) if such Borrowing is to be converted to or
continued as a Eurodollar Borrowing, the Interest Period with respect thereto.
If no Interest Period is specified in any such notice with respect to any
conversion to or continuation as a Eurodollar Borrowing, the Borrower shall be
deemed to have selected an Interest Period of one month’s duration. The
Administrative Agent shall advise the Lenders of any notice given pursuant to
this Section 2.10 and of each Lender’s portion of any converted or
continued Borrowing. If the Borrower shall not have given notice in accordance
with this Section 2.10 to continue any Borrowing into a subsequent
Interest Period (and shall not otherwise have given notice in accordance with
this Section 2.10 to convert such Borrowing), such Borrowing shall, at the
end of the Interest Period applicable thereto (unless repaid pursuant to the
terms hereof), automatically be continued into an ABR Borrowing.


 


SECTION 2.11. Repayment
of Borrowings. (a)  The Borrower shall pay to the
Administrative Agent, for the account of the Lenders, on the dates set forth
below, or if any such date is not a Business Day, on the next preceding
Business Day (each such date being called a “Repayment Date”), a principal amount of
the Loans (as adjusted from time to time pursuant to Sections 2.11(b),
2.12 and 2.13(e)) equal to the amount set forth below for such date, together
in each case with accrued and unpaid interest on the principal amount to be
paid to but excluding the date of such payment:


 




	
  Repayment Date

  	
   

  	
  Amount

  	
   

  
	
  March 31,
  2006

  	
   

  	
  $

  	
  425,000

  	
   

  
	
  June 30,
  2006

  	
   

  	
  $

  	
  425,000

  	
   

  
	
  September 30,
  2006

  	
   

  	
  $

  	
  425,000

  	
   

  
	
  December 31,
  2006

  	
   

  	
  $

  	
  425,000

  	
   

  
	
  March 31,
  2007

  	
   

  	
  $

  	
  425,000

  	
   

  
	
  June 30,
  2007

  	
   

  	
  $

  	
  425,000

  	
   

  
	
  September 30,
  2007

  	
   

  	
  $

  	
  425,000

  	
   

  






 


25

















 




	
  Repayment Date

  	
   

  	
  Amount

  	
   

  
	
  December 31,
  2007

  	
   

  	
  $

  	
  425,000

  	
   

  
	
  March 31,
  2008

  	
   

  	
  $

  	
  425,000

  	
   

  
	
  June 30,
  2008

  	
   

  	
  $

  	
  425,000

  	
   

  
	
  September 30,
  2008

  	
   

  	
  $

  	
  425,000

  	
   

  
	
  December 31,
  2008

  	
   

  	
  $

  	
  425,000

  	
   

  
	
  March 31,
  2009

  	
   

  	
  $

  	
  425,000

  	
   

  
	
  June 30,
  2009

  	
   

  	
  $

  	
  425,000

  	
   

  
	
  September 30,
  2009

  	
   

  	
  $

  	
  425,000

  	
   

  
	
  December 31,
  2009

  	
   

  	
  $

  	
  425,000

  	
   

  
	
  March 31,
  2010

  	
   

  	
  $

  	
  425,000

  	
   

  
	
  June 30,
  2010

  	
   

  	
  $

  	
  425,000

  	
   

  
	
  September 30,
  2010

  	
   

  	
  $

  	
  425,000

  	
   

  
	
  Maturity
  Date

  	
   

  	
  $

  	
  161,925,000

  	
   

  






 


(b)   In the event and on
each occasion that the Commitments shall be reduced or shall expire or
terminate other than as a result of the making of a Loan, the installments
payable on each Repayment Date shall be reduced pro rata by an aggregate amount
equal to the amount of such reduction, expiration or termination.


 


(c)   To the extent not
previously paid, all Loans shall be due and payable on the Maturity Date,
together with accrued and unpaid interest on the principal amount to be paid to
but excluding the date of payment.


 


(d)   All repayments
pursuant to this Section 2.11 shall be subject to Section 2.16, but
shall otherwise be without premium or penalty.


 


SECTION 2.12. Optional
Prepayment. (a)  The Borrower shall have the right at any
time and from time to time to prepay any Borrowing, in whole or in part, upon
at least three Business Days’ prior written or fax notice (or telephone notice
promptly confirmed by written or fax notice) in the case of Eurodollar Loans,
or written or fax notice (or telephone notice promptly confirmed by written or
fax notice) at least one Business Day prior to the date of prepayment in the
case of ABR Loans, to the Administrative Agent before 11:00 a.m., New York
City time; provided, however,
that each partial prepayment shall be in an amount that is an integral multiple
of $1,000,000.


 


(b)   Optional prepayments
of Loans shall be applied pro rata against the remaining scheduled installments
of principal due in respect of the Loans under Section 2.11.


 


(c)   Each notice of prepayment
shall specify the prepayment date and the principal amount of each Borrowing
(or portion thereof) to be prepaid, shall be irrevocable and shall commit the
Borrower to prepay such Borrowing by the amount stated therein on the date
stated therein; provided that any
such notice delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other financing arrangements, in which
case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such


 


26

















 


condition
is not satisfied. All prepayments under this Section 2.12 shall be subject
to Section 2.16 but otherwise without premium or penalty. All prepayments
under this Section 2.12 shall be accompanied by accrued and unpaid
interest on the principal amount to be prepaid to but excluding the date of
payment.


 


SECTION 2.13. Mandatory
Prepayments. (a)  Not later than the fifth Business Day
following the receipt of Net Cash Proceeds in respect of any Asset Sale, the
Borrower shall apply 100% of the Net Cash Proceeds received with respect
thereto to prepay outstanding Loans in accordance with Section 2.13(e).


 


(b)   In the event and on
each occasion that an Equity Issuance occurs, the Borrower shall, substantially
simultaneously with (and in any event not later than the fifth Business Day
next following) the occurrence of such Equity Issuance, apply 50% (or, if after
giving effect to the use of the proceeds of such Equity Issuance, the Leverage
Ratio would be less than 4.50 to 1.0, 25%) of the Net Cash Proceeds therefrom
to prepay outstanding Loans in accordance with Section 2.13(e); provided that no prepayment under this
paragraph shall be required if after giving effect to the use of the proceeds
of such Equity Issuance, the Leverage Ratio would be less than 3.50 to 1.0.


 


(c)   No later than the
earlier of (i) 90 days after the end of each fiscal year of the
Borrower, commencing with the fiscal year ending on December 31, 2006, and
(ii) the date on which the financial statements with respect to such
period are delivered pursuant to Section 5.04(a), the Borrower shall
prepay outstanding Loans in accordance with Section 2.13(e) in an
aggregate principal amount equal to the excess, if any, of (i) 50% of
Excess Cash Flow for the fiscal year then ended over (ii) Voluntary
Prepayments made during such fiscal year; provided
that (A) such percentage shall be reduced to 25% if the Leverage Ratio as
of the end of such fiscal year was less than 4.50 to 1.00 and (B) no
prepayment under this paragraph shall be required if the Leverage Ratio as of
the end of such fiscal year was less than 3.50 to 1.00.


 


(d)   In the event that any
Loan Party or any subsidiary of a Loan Party shall receive Net Cash Proceeds
from the issuance or incurrence of Indebtedness for money borrowed or
Disqualified Stock of any Loan Party or any subsidiary of a Loan Party (other
than any cash proceeds from the issuance of Indebtedness or Disqualified Stock
permitted pursuant to Section 6.01), the Borrower shall, substantially
simultaneously with (and in any event not later than the fifth Business Day
next following) the receipt of such Net Cash Proceeds by such Loan Party or
such subsidiary, apply an amount equal to 100% of such Net Cash Proceeds to
prepay outstanding Loans in accordance with Section 2.13(e).


 


(e)   Mandatory prepayments
of outstanding Loans under this Agreement shall be allocated ratably among the
Lenders that accept the same and applied pro rata against the remaining
scheduled installments of principal due in respect of the Loans of such Lenders
under Section 2.11. Any Lender may elect, by notice to the
Administrative Agent at or prior to the time and in the manner specified by the
Administrative Agent, prior to any prepayment of Loans required to be made by
the Borrower pursuant to this Section 2.13, to decline all (but not a
portion) of its pro rata share of such prepayment (such declined


 


27

















 


amounts,
the “Declined Proceeds”).
Any Declined Proceeds shall be offered to the Lenders not so declining such
prepayment (with such Lenders having the right to decline any prepayment with
Declined Proceeds at the time and in the manner specified by the Administrative
Agent). Any remaining Declined Proceeds shall be applied first, as may be
required pursuant to the mandatory prepayment provisions of the Second Lien
Credit Agreement and second, as determined by the Borrower.


 


(f)   The Borrower shall
deliver to the Administrative Agent, at the time of each prepayment required
under this Section 2.13, (i) a certificate signed by a Financial
Officer of the Borrower setting forth in reasonable detail the calculation of
the amount of such prepayment and (ii) to the extent practicable, at least
five Business Days prior written notice of such prepayment. Each notice of
prepayment shall specify the prepayment date, the Type of each Loan being
prepaid and the principal amount of each Loan (or portion thereof) to be prepaid; provided, however, that, if at the time of any prepayment pursuant to
this Section 2.13 there shall be outstanding Borrowings of different Types
or Eurodollar Borrowings with different Interest Periods, and if some but not
all Lenders shall have accepted such mandatory prepayment, then the aggregate
amount of such mandatory prepayment shall be allocated ratably to each
outstanding Borrowing of the accepting Lenders. All prepayments of Borrowings
under this Section 2.13 shall be subject to Section 2.16, but shall
otherwise be without premium or penalty, and shall be accompanied by accrued
and unpaid interest on the principal amount to be prepaid to but excluding the
date of payment.


 


SECTION 2.14. Reserve
Requirements; Change in Circumstances. (a)  Notwithstanding
any other provision of this Agreement, if any Change in Law shall 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 which is reflected in the
Adjusted LIBO Rate) or shall impose on such Lender or the London interbank
market any other condition affecting this Agreement or Eurodollar Loans made by
such Lender, 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 to reduce
the amount of any sum received or receivable by such Lender hereunder (whether
of principal, interest or otherwise) by an amount deemed by such Lender to be
material, then the Borrower will pay to such Lender upon demand such additional
amount or amounts as will compensate such Lender for such additional costs
incurred or reduction suffered.


 


(b)   If any Lender shall
have determined that any Change in Law regarding capital adequacy has or would
have the effect of reducing the rate of return on such Lender’s capital or on
the capital of such Lender’s holding company, if any, as a consequence of this
Agreement or the Loans made by such Lender pursuant hereto to a level below
that which such Lender or such Lender’s holding company could have achieved but
for such Change in Law (taking into consideration such Lender’s policies and
the policies of such Lender’s holding company with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time the
Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender or such Lender’s holding company for any such reduction
suffered.


 


28

















 


(c)   A certificate of a
Lender setting forth the amount or amounts necessary to compensate such Lender
or its holding company, as applicable, as specified in paragraph (a) or
(b) above 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 delivered by it within 10 days after its
receipt of the same.


 


(d)   Failure or delay on
the part of any Lender to demand compensation for any increased costs or
reduction in amounts received or receivable or reduction in return on capital
shall not constitute a waiver of such Lender’s right to demand such
compensation; provided that the
Borrower shall not be under any obligation to compensate any Lender under
paragraph (a) or (b) above with respect to increased costs or
reductions with respect to any period prior to the date that is 120 days
prior to such request if such Lender knew or could reasonably have been expected
to know of the circumstances giving rise to such increased costs or reductions
and of the fact that such circumstances would result in a claim for increased
compensation by reason of such increased costs or reductions; provided further that the foregoing
limitation shall not apply to any increased costs or reductions arising out of
the retroactive application of any Change in Law within such 120-day period.
The protection of this Section shall be available to each Lender
regardless of any possible contention of the invalidity or inapplicability of
the Change in Law that shall have occurred or been imposed.


 


SECTION 2.15. Change
in Legality. (a)  Notwithstanding any other provision of
this Agreement, if any Change in Law shall make it unlawful for any Lender
to maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by written
notice to the Borrower and to the Administrative Agent:


 


(i)  such Lender may declare that
Eurodollar Loans will not thereafter (for the duration of such unlawfulness) be
continued for additional Interest Periods and ABR Loans will not thereafter
(for such duration) be converted into Eurodollar Loans, whereupon any request
to convert an ABR Borrowing to a Eurodollar Borrowing or to continue a
Eurodollar Borrowing for an additional Interest Period shall, as to such Lender
only, be deemed a request to continue an ABR Loan as such for an additional
Interest Period or to convert a Eurodollar Loan into an ABR Loan, as the case may be,
unless such declaration shall be subsequently withdrawn; and


 


(ii)  such Lender may require that all
outstanding Eurodollar Loans made by it be converted to ABR Loans, in which
event all such Eurodollar Loans shall be automatically converted to ABR Loans
as of the effective date of such notice as provided in paragraph (b) below.


 


In
the event any Lender shall exercise its rights under (i) or (ii) above,
all payments and prepayments of principal that would otherwise have been
applied to repay the converted Eurodollar Loans of such Lender shall instead be
applied to repay the ABR Loans resulting from the conversion of such Eurodollar
Loans.


 


29

















 


(b)   For purposes of this Section 2.15,
a notice to the Borrower by any Lender shall be effective as to each Eurodollar
Loan made by such Lender, if lawful, on the last day of the Interest Period
then applicable to such Eurodollar Loan; in all other cases such notice shall
be effective on the date of receipt by the Borrower.


 


SECTION 2.16. Indemnity.
The Borrower shall indemnify each Lender against any loss or expense that such
Lender may sustain or incur as a consequence of (a) any event, other
than a default by such Lender in the performance of its obligations hereunder,
which results in (i) such Lender receiving or being deemed to receive any
amount on account of the principal of any Eurodollar Loan prior to the end of
the Interest Period in effect therefor, (ii) the conversion of any
Eurodollar Loan to an ABR Loan, or the conversion of the Interest Period with
respect to any Eurodollar Loan, in each case other than on the last day of the
Interest Period in effect therefor, or (iii) any Eurodollar Loan to be
made by such Lender (including any Eurodollar Loan to be made pursuant to a
conversion or continuation under Section 2.10) not being made after notice
of such Loan shall have been given by the Borrower hereunder (any of the events
referred to in this clause (a) being called a “Breakage Event”) or (b) any
default in the making of any payment or prepayment required to be made
hereunder. In the case of any Breakage Event, such loss shall include an amount
equal to the excess, as reasonably determined by such Lender, of (i) its
cost of obtaining funds for the Eurodollar Loan that is the subject of such
Breakage Event for the period from the date of such Breakage Event to the last
day of the Interest Period in effect (or that would have been in effect) for
such Loan over (ii) the amount of interest likely to be realized by such
Lender in redeploying the funds released or not utilized by reason of such
Breakage Event for such period. A certificate of any Lender setting forth any
amount or amounts which such Lender is entitled to receive pursuant to this Section 2.16
shall be delivered to the Borrower and shall be conclusive absent manifest
error.


 


SECTION 2.17. Pro
Rata Treatment. Except as required under Section 2.13
or 2.15, each Borrowing, each payment or prepayment of principal of any
Borrowing, each payment of interest on the Loans, each reduction of the
Commitments and each conversion of any Borrowing to or continuation of any
Borrowing as a Borrowing of any Type shall be allocated pro rata among the
Lenders in accordance with their respective Commitments (or, following the
termination of the Commitments, in accordance with the respective principal
amounts of their outstanding Loans). Each Lender agrees that in computing such
Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent
may, in its discretion, round each Lender’s percentage of such Borrowing to the
next higher or lower whole dollar amount.


 


SECTION 2.18. Sharing
of Setoffs. Each Lender agrees that if it shall, through the
exercise of a right of banker’s lien, setoff or counterclaim against the
Borrower or any other Loan Party, or pursuant to a secured claim under Section 506
of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, obtain payment (voluntary or involuntary) in respect of any
Loan or Loans as a result of which the unpaid principal portion of its Loans
shall be proportionately less than the unpaid principal portion of the


 


30

















 


Loans
of any other Lender, it shall be deemed simultaneously to have purchased from
such other Lender at face value, and shall promptly pay to such other Lender
the purchase price for, a participation in the Loans of such other Lender, so
that the aggregate unpaid principal amount of the Loans and participations in
Loans held by each Lender shall be in the same proportion to the aggregate
unpaid principal amount of all Loans then outstanding as the principal amount
of its Loans prior to such exercise of banker’s lien, setoff or counterclaim or
other event was to the principal amount of all Loans outstanding prior to such
exercise of banker’s lien, setoff or counterclaim or other event; provided, however,
that if any such purchase or purchases or adjustments shall be made pursuant to
this Section 2.18 and the payment giving rise thereto shall thereafter be
recovered, such purchase or purchases or adjustments shall be rescinded to the
extent of such recovery and the purchase price or prices or adjustment restored
without interest. The Borrower expressly consents to the foregoing arrangements
and agrees that any Lender holding a participation in a Loan deemed to have
been so purchased may exercise any and all rights of banker’s lien, setoff
or counterclaim with respect to any and all moneys owing by the Borrower to
such Lender by reason thereof as fully as if such Lender had made a Loan
directly to the Borrower in the amount of such participation.


 


SECTION 2.19. Payments.
(a)  The Borrower shall make each payment (including principal of or
interest on any Borrowing or any Fees or other amounts) hereunder and under any
other Loan Document not later than 12:00 (noon), New York City time, on
the date when due in immediately available dollars, without setoff, defense or
counterclaim. Each such payment shall be made to the Administrative Agent at
its offices at Eleven Madison Avenue, New York, NY 10010. The Administrative Agent
shall promptly distribute to each Lender any payments received by the
Administrative Agent on behalf of such Lender.


 


(b)   Except as otherwise
expressly provided herein, whenever any payment (including principal of or
interest on any Borrowing or any Fees or other amounts) hereunder or under any
other Loan Document shall become due, or otherwise would occur, on a day that
is not a Business Day, such payment may be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of interest or Fees, if applicable.


 


(c)   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 hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on
such date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders the amount due. In such event, if the Borrower does
not in fact make such payment, then each of the Lenders severally agrees to
repay to the Administrative Agent forthwith on demand the amount so distributed
to such Lender, in immediately available funds with interest thereon, for each
day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at a rate determined
by the Administrative Agent to represent its cost of overnight or short-term
funds (which determination shall be conclusive absent manifest error).


 


31

















 


SECTION 2.20. Taxes.
(a)  Any and all payments by or on account of any obligation of the
Borrower or any other Loan Party 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 or any other Loan Party 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 or Lender (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 or such Loan Party shall make such
deductions and (iii) the Borrower or such Loan Party 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 and each Lender, within 10 days after
written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by the Administrative Agent or such Lender, as the case may be,
on or with respect to any payment by or on account of any obligation of the
Borrower or any other Loan Party 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 by the
Administrative Agent on behalf of itself or a Lender, shall be conclusive
absent manifest error.


 


(d)   As soon as practicable
after any payment of Indemnified Taxes or Other Taxes by the Borrower or any
other Loan Party 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.


 


(e)   Any Foreign Lender
that is entitled 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 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 of withholding.


 


SECTION 2.21. Assignment
of Commitments Under Certain Circumstances; Duty to Mitigate. (a) 
In the event (i) any Lender delivers a certificate requesting


 


32

















 


compensation
pursuant to Section 2.14, (ii) any Lender delivers a notice described
in Section 2.15, (iii) the Borrower is required to pay any additional
amount to any Lender or any Governmental Authority on account of any Lender
pursuant to Section 2.20 or (iv) any Lender refuses to consent to any
amendment, waiver or other modification of any Loan Document requested by the
Borrower that requires the consent of a greater percentage of the Lenders than
the Required Lenders and such amendment, waiver or other modification is
consented to by the Required Lenders, the Borrower may, at its sole expense and
effort (including with respect to the processing and recordation fee referred
to in Section 9.04(b)), upon notice to such Lender and the Administrative
Agent, require such Lender to transfer and assign, without recourse (in
accordance with and subject to the restrictions contained in Section 9.04),
all of its interests, rights and obligations under this Agreement to an
Eligible Assignee that shall assume such assigned obligations (which Eligible
Assignee may be another Lender, if a Lender accepts such assignment); provided that (x) such assignment
shall not conflict with any law, rule or regulation or order of any court
or other Governmental Authority having jurisdiction, (y) the Borrower
shall have received the prior written consent of the Administrative Agent,
which consent shall not unreasonably be withheld or delayed, and (z) the
Borrower or such assignee shall have paid to the affected Lender in immediately
available funds an amount equal to the sum of the principal of and interest
accrued to the date of such payment on the outstanding Loans of such Lender
plus all Fees and other amounts accrued for the account of such Lender
hereunder with respect thereto (including any amounts under Sections 2.14
and 2.16); provided further that,
if prior to any such transfer and assignment the circumstances or event that
resulted in such Lender’s claim for compensation under Section 2.14,
notice under Section 2.15 or the amounts paid pursuant to Section 2.20,
as the case may be, cease to cause such Lender to suffer increased costs
or reductions in amounts received or receivable or reduction in return on
capital, or cease to have the consequences specified in Section 2.15, or
cease to result in amounts being payable under Section 2.20, as the case may be
(including as a result of any action taken by such Lender pursuant to
paragraph (b) below), or if such Lender shall waive its right to
claim further compensation under Section 2.14 in respect of such
circumstances or event or shall withdraw its notice under Section 2.15 or
shall waive its right to further payments under Section 2.20 in respect of
such circumstances or event or shall consent to the proposed amendment, waiver,
consent or other modification, as the case may be, then such Lender shall
not thereafter be required to make any such transfer and assignment hereunder.
Each Lender hereby grants to the Administrative Agent an irrevocable power of
attorney (which power is coupled with an interest) to execute and deliver, on
behalf of such Lender as assignor, any Assignment and Acceptance necessary to
effectuate any assignment of such Lender’s interests hereunder in the
circumstances contemplated by this Section 2.21(a).


 


(b)   If (i) any Lender
shall request compensation under Section 2.14, (ii) any Lender
delivers a notice described in Section 2.15 or (iii) the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority on account of any Lender, pursuant to Section 2.20, then such
Lender shall use reasonable efforts (which shall not require such Lender to
incur an unreimbursed loss or unreimbursed cost or expense or otherwise take
any action inconsistent with its internal policies or legal or regulatory
restrictions or suffer any disadvantage or burden deemed by it to be


 


33

















 


significant)
(x) to file any certificate or document reasonably requested in writing by
the Borrower or (y) to assign its rights and delegate and transfer its
obligations hereunder to another of its offices, branches or affiliates, if
such filing or assignment would reduce its claims for compensation under Section 2.14
or enable it to withdraw its notice pursuant to Section 2.15 or would
reduce amounts payable pursuant to Section 2.20, as the case may be,
in the future. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such filing or
assignment, delegation and transfer.


 


ARTICLE III


 


Representations
and Warranties


 


The Borrower represents and warrants to the
Administrative Agent, the Collateral Agent and each of the Lenders that:


 


SECTION 3.01. Organization;
Powers. The Borrower and each of the Subsidiaries (a) is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has all requisite power and
authority to own its property and assets and to carry on its business as now
conducted and as proposed to be conducted, (c) is qualified to do business
in, and is in good standing in, every jurisdiction where such qualification is
required, except where the failure so to qualify could not reasonably be
expected to result in a Material Adverse Effect, and (d) has the power and
authority to execute, deliver and perform its obligations under each of
the Loan Documents and each other agreement or instrument contemplated thereby
to which it is or will be a party and, in the case of the Borrower, to borrow
hereunder.


 


SECTION 3.02. Authorization.
The Transactions (a) have been duly authorized by all requisite corporate
and, if required, stockholder action and (b) will not (i) violate (A) any
provision of law, statute, rule or regulation, or of the certificate or
articles of incorporation or other constitutive documents or by-laws of the
Borrower or any Subsidiary, (B) any order of any Governmental Authority or
(C) any provision of any indenture, agreement or other instrument to which
the Borrower or any Subsidiary is a party or by which any of them or any of
their property is or may be bound, (ii) be in conflict with, result
in a breach of or constitute (alone or with notice or lapse of time or both) a
default under, or give rise to any right to accelerate or to require the
prepayment, repurchase or redemption of any obligation under any such
indenture, agreement or other instrument or (iii) result in the creation
or imposition of any Lien upon or with respect to any property or assets now
owned or hereafter acquired by the Borrower or any Subsidiary (other than Liens
created hereunder or under the Security Documents and the Second Priority
Liens).


 


SECTION 3.03. Enforceability.
This Agreement has been duly executed and delivered by the Borrower and
constitutes, and each other Loan Document when executed and delivered by each
Loan Party that is or will be a party thereto will constitute, a legal, valid
and binding obligation of such Loan Party enforceable against such Loan Party
in accordance with its terms.


 


34

















 


SECTION 3.04. Governmental
Approvals. No material action, consent or approval of,
registration or filing with or any other action by any Governmental Authority
is or will be required in connection with the Transactions, except for (a) the
filing of Uniform Commercial Code financing statements and filings with
the United States Patent and Trademark Office and the United States Copyright
Office and (b) such as have been made or obtained and are in full force
and effect.


 


SECTION 3.05. Financial
Statements. (a)  The Borrower has heretofore furnished to
the Administrative Agent its consolidated balance sheets and related statements
of income, stockholder’s equity and cash flows (i) as of and for the
fiscal years ended December 31, 2002, December 31, 2003 and December 31,
2004, audited by and accompanied by the opinion of
PricewaterhouseCoopers LLP, independent public accountants, and (ii) as
of and for the fiscal quarter and the portion of the fiscal year ended September 30,
2005, and each fiscal month ended after September 30, 2005 and at least
30 days before the Closing Date. Such financial statements present fairly
the financial condition and results of operations and cash flows of the
Borrower and its consolidated Subsidiaries as of such dates and for such
periods. Such balance sheets and the notes thereto disclose all material
liabilities, direct or contingent, of the Borrower and its consolidated
Subsidiaries as of the dates thereof. Such financial statements were prepared
in accordance with GAAP applied on a consistent basis, subject, in the case of
unaudited financial statements, to year-end audit adjustments and the absence
of footnotes.


 


(b)   The Borrower has
heretofore delivered to the Administrative Agent its unaudited pro forma
consolidated balance sheet and related pro forma statements of income,
stockholder’s equity and cash flows as of and for the fiscal quarter ended September 30,
2005, prepared giving effect to the Transactions as if they had occurred, with
respect to such balance sheet, on such date and, with respect to such other
financial statements, on the first day of the four-fiscal quarter period ending
on such date. Such pro forma financial statements have been prepared in good
faith by the Borrower, based on the assumptions used to prepare the pro forma
financial information contained in the Confidential Information Memorandum
(which assumptions are believed by the Borrower on the date hereof and on the
Closing Date to be reasonable), are based on the best information available to
the Borrower as of the date of delivery thereof, accurately reflect all
adjustments required to be made to give effect to the Transactions and present
fairly on a pro forma basis the estimated consolidated financial position of
the Borrower and its consolidated Subsidiaries as of such date and for such
period, assuming that the Transactions had actually occurred at such date or at
the beginning of such period, as the case may be.


 


SECTION 3.06. No
Material Adverse Change. No event, change or condition has
occurred that has had, or could reasonably be expected to have, a material
adverse effect on the business, assets, liabilities, operations, condition (financial
or otherwise) or operating results of the Borrower and the Subsidiaries, taken
as a whole, since December 31, 2004.


 


35

















 


SECTION 3.07. Title
to Properties; Possession Under Leases. (a)  As of the Closing
Date, neither the Borrower nor any of the Subsidiaries owns any real property
in fee.


 


(b)   Each of the Borrower
and the Subsidiaries has complied with all obligations under all material
leases to which it is a party and all such leases are in full force and effect.
Each of the Borrower and the Subsidiaries enjoys peaceful and undisturbed
possession under all such material leases. Schedule 3.07(b) lists
completely and correctly as of the Closing Date all real property leased by the
Borrower and the Subsidiaries and the addresses thereof.


 


SECTION 3.08. Subsidiaries.
Schedule 3.08 sets forth as of the Closing Date a list of all Subsidiaries
and the percentage ownership interest of the Borrower therein. The shares of
capital stock or other ownership interests so indicated on Schedule 3.08
are fully paid and non-assessable and are owned by the Borrower, directly or
indirectly, free and clear of all Liens (other than Liens created under the
Security Documents and any Second Priority Liens).


 


SECTION 3.09. Litigation;
Compliance with Laws. (a)  Except as set forth on Schedule 3.09,
there are no actions, suits or proceedings at law or in equity or by or before
any Governmental Authority now pending or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any Subsidiary or any business,
property or rights of any such person (i) that involve any Loan Document
or the Transactions or (ii) that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect.


 


(a)   Since the date of this
Agreement, there has been no change in the status of the matters disclosed on Schedule 3.09
that, individually or in the aggregate, has resulted in, or materially
increased the likelihood of, a Material Adverse Effect.


 


SECTION 3.10. Agreements.
Neither the Borrower nor any of the Subsidiaries is in default in any manner
under any provision of any indenture or other agreement or instrument
evidencing Material Indebtedness, or any other material agreement or instrument
to which it is a party or by which it or any of its properties or assets are or
may be bound, where such default could reasonably be expected to result in
a Material Adverse Effect.


 


SECTION 3.11. Federal
Reserve Regulations. (a)  Neither the Borrower nor any of
the Subsidiaries is engaged principally, or as one of its important activities,
in the business of extending credit for the purpose of buying or carrying
Margin Stock.


 


(b)   No part of the
proceeds of any Loan will be used, whether directly or indirectly, and whether
immediately, incidentally or ultimately, for any purpose that entails a
violation of, or that is inconsistent with, the provisions of the Regulations
of the Board, including Regulation T, U or X.


 


36

















 


SECTION 3.12. Investment
Company Act. Neither the Borrower nor any Subsidiary is an “investment
company” as defined in, or subject to regulation under, the Investment Company
Act of 1940.


 


SECTION 3.13. Use
of Proceeds. The Borrower will use the proceeds of the Loans
only for the purposes specified in the introductory statement to this
Agreement.


 


SECTION 3.14. Tax
Returns. Each of the Borrower and the Subsidiaries has filed or
caused to be filed all Federal and all material state, local and foreign tax
returns or materials required to have been filed by it and has paid or caused
to be paid all taxes due and payable by it and all assessments received by it,
except taxes that are being contested in good faith by appropriate proceedings
and for which the Borrower or such Subsidiary, as applicable, shall have set
aside on its books adequate reserves.


 


SECTION 3.15. No
Material Misstatements. None of (a) the Confidential
Information Memorandum or (b) any other information, report, financial
statement, exhibit or schedule furnished by or on behalf of the
Borrower to the Administrative Agent or any Lender in connection with the
negotiation of any Loan Document or included therein or delivered pursuant
thereto, taken as a whole, contained, contains or will contain any material
misstatement of fact or omitted, omits or will omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were, are or will be made, not misleading; provided that to the extent any such
information, report, financial statement, exhibit or schedule was
based upon or constitutes a forecast or projection, the Borrower represents
only that it acted in good faith and utilized reasonable assumptions and due
care in the preparation of such information, report, financial statement, exhibit or
schedule.


 


SECTION 3.16. Employee
Benefit Plans. Each of the Borrower and its ERISA Affiliates is,
with respect to all Plans and Multiemployer Plans, in compliance in all
material respects with the applicable provisions of ERISA and the Code and the
regulations and published interpretations thereunder. No ERISA Event has
occurred or is reasonably expected to occur that, when taken together with all
other such ERISA Events, could reasonably be expected to result in material
liability of the Borrower or any of its Subsidiaries or ERISA Affiliates.


 


SECTION 3.17. Environmental
Matters. (a)  Except as set forth in Schedule 3.17 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 the Borrower or any of the Subsidiaries (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.


 


(b)   Since the date of this
Agreement, there has been no change in the status of the matters disclosed on Schedule 3.17
that, individually or in the aggregate, has resulted in, or materially
increased the likelihood of, a Material Adverse Effect.


 


37

















 


SECTION 3.18. Insurance.
Schedule 3.18 sets forth a true, complete and correct description of all
insurance maintained by the Borrower or by the Borrower for its Subsidiaries as
of the Closing Date. As of such date, such insurance is in full force and
effect and all premiums have been duly paid. The Borrower and its Subsidiaries
have insurance in such amounts and covering such risks and liabilities as are
in accordance with normal industry practice.


 


SECTION 3.19. Security
Documents. (a)  Each of the Pledge and Security Agreement
and the Pledge Agreement, upon execution and delivery thereof by the parties
thereto, will create in favor of the Collateral Agent, for the ratable benefit
of the Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined therein) and the proceeds thereof and (i) when the
Pledged Collateral is delivered to the Collateral Agent, the Lien created under
such Security Document shall constitute a fully perfected first priority Lien
on, and security interest in, all right, title and interest of the Grantors in
such Pledged Collateral, in each case prior and superior in right to any other
person, and (ii) when financing statements in appropriate form are
filed in the offices specified on Schedule 3.19(a), the Lien created under
the Pledge and Security Agreement will constitute a fully perfected first
priority Lien on, and security interest in, all right, title and interest of
the Borrower in such Collateral (other than Intellectual Property, as defined
in the Pledge and Security Agreement), in each case prior and superior in right
to any other person, other than with respect to Liens expressly permitted by Section 6.02.


 


(b)   Upon the recordation
of the Pledge and Security Agreement with the United States Patent and
Trademark Office and the United States Copyright Office, together with the
financing statements in appropriate form filed in the offices specified on
Schedule 3.19(a), the Lien created under the Pledge and Security Agreement
shall constitute a fully perfected first priority Lien on, and security
interest in, all right, title and interest of the Borrower in the Intellectual
Property (as defined in the Pledge and Security Agreement) in which a security
interest may be perfected by filing in the United States and its
territories and possessions, in each case prior and superior in right to any
other person (it being understood that subsequent recordings in the United
States Patent and Trademark Office and the United States Copyright Office may be
necessary to perfect a Lien on registered trademarks and patents, trademark and
patent applications and registered copyrights acquired by the Borrower after
the date hereof).


 


SECTION 3.20. Labor
Matters. As of the Closing Date, there are no strikes, lockouts
or slowdowns against the Borrower or any Subsidiary pending or, to the
knowledge of the Borrower, threatened. Except as could not reasonably be
expected to have a Material Adverse Effect, (a) the hours worked by and
payments made to employees of 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, and (b) all payments
due from the Borrower or any Subsidiary or for which any claim may be made
against 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 the Borrower or such Subsidiary. The consummation of
the Transactions will not give rise to any right of termination or right of


 


38

















 


renegotiation
on the part of any union under any collective bargaining agreement to
which the Borrower or any Subsidiary is bound.


 


SECTION 3.21. Solvency.
Immediately after the consummation of the Transactions to occur on the Closing
Date and immediately following the making of each Loan and after giving effect
to the application of the proceeds of each Loan, (a) the fair value of the
assets of the Borrower and the Subsidiaries determined on a consolidated basis,
at a fair valuation, will exceed their debts and liabilities, subordinated,
contingent or otherwise; (b) the present fair saleable value of the
property of the Borrower and the Subsidiaries determined on a consolidated
basis will be greater than the amount that will be required to pay the probable
liability of their debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute and matured; (c) the
Borrower and the Subsidiaries determined on a consolidated basis will be able
to pay their 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 now conducted and is
proposed to be conducted following the Closing Date.


 


SECTION 3.22. Transaction
Documents. The Borrower has delivered to the Administrative
Agent a complete and correct copy of the Redemption Agreement (including all
schedules, exhibits, amendments, supplements and modifications thereto) as in
effect on the Closing Date. Neither the Borrower nor, to the knowledge of the
Borrower, any other person party thereto is in default in the performance or
compliance with any material provisions thereof. The Redemption Agreement
complies in all material respects with all applicable laws.


 


ARTICLE IV


 


Conditions of
Lending


 


The obligations of the Lenders to make the Loans
hereunder are subject to the satisfaction of the following conditions:


 


(a)   The Administrative
Agent shall have received a notice of Borrowing as required by Section 2.03.


 


(b)   The representations
and warranties set forth in Article III and in each other Loan Document
shall be true and correct in all material respects on and as of the date of the
making of such Loans with the same effect as though made on and as of such
date, except to the extent such representations and warranties expressly relate
to an earlier date.


 


(c)   At the time of and
immediately after the making of such Loans, no Default or Event of Default
shall have occurred and be continuing.


 


(d)   The Administrative
Agent shall have received, on behalf of itself and the Lenders, a favorable
written opinion of (i) Simpson Thacher & Bartlett LLP,
counsel for the Borrower, substantially to the effect set forth in Exhibit H-1,
and (ii) each local


 


39

















 


counsel
listed on Schedule 4.01, substantially to the effect set forth in Exhibit H-2,
in each case (A) dated the Closing Date, (B) addressed to the
Administrative Agent and the Lenders and (C) covering such matters
relating to the Loan Documents and the Transactions as the Administrative Agent
shall reasonably request, and the Borrower hereby requests each of its counsel
to deliver such opinions.


 


(e)   All legal matters
incident to this Agreement, the Borrowings and extensions of credit hereunder
and the other Loan Documents shall be satisfactory to the Lenders and to the
Administrative Agent.


 


(f)   The Administrative
Agent shall have received (i) a copy of the certificate of incorporation,
including all amendments thereto, of each Loan Party, certified as of a recent
date by the Secretary of State of the State of Delaware, and a certificate as
to the good standing of each Loan Party as of a recent date, from such
Secretary of State; (ii) a certificate of the Secretary or Assistant
Secretary of each Loan Party dated the Closing Date and certifying (A) that
attached thereto is a true and complete copy of the bylaws of such Loan Party
as in effect on the Closing Date and at all times since a date prior to the
date of the resolutions described in clause (B) below, (B) that
attached thereto is a true and complete copy of resolutions duly adopted by the
Board of Directors of such Loan Party authorizing the execution, delivery and
performance of the Loan Documents to which such person is a party and, in the
case of the Borrower, the borrowings hereunder, and that such resolutions have
not been modified, rescinded or amended and are in full force and effect, (C) that
the certificate of incorporation of such Loan Party have not been amended since
the date of the last amendment thereto shown on the certificate of good
standing furnished pursuant to clause (i) above, and (D) as to
the incumbency and specimen signature of each officer executing any Loan
Document or any other document delivered in connection herewith on behalf of
such Loan Party; (iii) a certificate of another officer as to the
incumbency and specimen signature of the Secretary or Assistant Secretary
executing the certificate pursuant to clause (ii) above; and (iv) such
other documents as the Lenders or the Administrative Agent may reasonably
request.


 


(g)   The Administrative
Agent shall have received a certificate, dated the Closing Date and signed by a
Financial Officer of the Borrower, confirming compliance with the conditions
precedent set forth in paragraphs (b) and (c) of this Article IV.


 


(h)   The Administrative
Agent shall have received all Fees and other amounts due and payable on or
prior to the Closing Date, including, to the extent invoiced, reimbursement or
payment of all reasonable out-of-pocket expenses required to be reimbursed or
paid by the Borrower hereunder or under any other Loan Document.


 


(i)   The Security Documents
shall have been duly executed by the Borrower, each Loan Party that is to be a
party thereto and, in the case of the Pledge Agreement, Parent, and shall be in
full force and effect on the Closing Date. The Collateral Agent on behalf of
the Secured Parties shall have a security interest in the Collateral of the type
and priority described in each Security Document.


 


40

















 


(j)   The Collateral Agent shall
have received a Perfection Certificate with respect to the Loan Parties dated
the Closing Date and duly executed by a Responsible Officer of the Borrower,
and shall have received the results of a search of the Uniform Commercial
Code filings (or equivalent filings) made with respect to the Loan Parties in
the states (or other jurisdictions) of formation of such persons, in which the
chief executive office of each such person is located and in the other
jurisdictions in which such persons maintain property, in each case as
indicated on such Perfection Certificate, together with copies of the financing
statements (or similar documents) disclosed by such search, and accompanied by
evidence satisfactory to the Collateral Agent that the Liens indicated in any
such financing statement (or similar document) would be permitted under Section 6.02
or have been or will be contemporaneously released or terminated.


 


(k)   The Administrative Agent
shall have received a copy of, or a certificate as to coverage under, the
insurance policies required by Section 5.02 and the applicable provisions
of the Security Documents, each of which shall be endorsed or otherwise amended
to include a customary lender’s loss payable endorsement and to name the
Collateral Agent as additional insured, in form and substance satisfactory
to the Administrative Agent.


 


(l)   The Redemption shall have
been, or substantially simultaneously with the funding of Loans on the Closing
Date shall be, consummated in accordance with the Redemption Agreement and
applicable law, without giving effect to any modification or waiver that is
materially adverse to the interests of the Lenders of any terms or conditions
of the Redemption Agreement unless otherwise approved by the Required Lenders.
The Administrative Agent shall have received copies of the Redemption Agreement
and all certificates, opinions and other documents delivered thereunder,
certified by a Financial Officer as being complete and correct.


 


(m)   Immediately after giving
effect to the Transactions and the other transactions contemplated hereby, the
Borrower and the Subsidiaries shall have outstanding no Indebtedness or
preferred stock other than (a) Indebtedness outstanding under this
Agreement and the Second Lien Credit Agreement and (b) Indebtedness set
forth on Schedule 6.01.


 


(n)   The Lenders shall have
received the financial statements and opinion referred to in Section 3.05.


 


(o)   The Administrative Agent
shall have received a certificate from the chief financial officer of the
Borrower certifying that the Borrower and its subsidiaries, on a consolidated
basis after giving effect to the Transactions to occur on the Closing Date, are
solvent.


 


(p)   All requisite Governmental
Authorities and third parties shall have approved or consented to the
Transactions and the other transactions contemplated hereby to the extent
required, all applicable appeal periods shall have expired and there shall not
be any pending or threatened litigation, governmental, administrative or
judicial action that 


 


41

















 


could
reasonably be expected to restrain, prevent or impose burdensome conditions on
the Transactions or the other transactions contemplated hereby.


 


(q)   The Lenders shall have
received, at least five days prior to the Closing Date, all documentation and
other information required by regulatory authorities under applicable “know
your customer” and anti-money laundering rules and regulations, including
the USA PATRIOT Act.


 


ARTICLE V


 


Affirmative
Covenants


 


The Borrower covenants and agrees with each Lender
that so long as this Agreement shall remain in effect and until the Commitments
have been terminated and the principal of and interest on each Loan and all
Fees and all other expenses or amounts payable under any Loan Document shall
have been paid in full, unless the Required Lenders shall otherwise consent in
writing, the Borrower will, and will cause each of the Subsidiaries to:


 


SECTION 5.01. Existence;
Compliance with Laws; Businesses and Properties. (a)  Do or
cause to be done all things necessary to preserve, renew and keep in full force
and effect its legal existence, except as otherwise expressly permitted under Section 6.05.


 


(b)   Do or cause to be done
all things necessary to obtain, preserve, renew, extend and keep in full force
and effect the rights, licenses, permits, franchises, authorizations, patents,
copyrights, trademarks and trade names material to the conduct of its business;
comply in all material respects with all applicable laws, rules, regulations
and decrees and orders of any Governmental Authority, whether now in effect or
hereafter enacted; and at all times maintain and preserve all property material
to the conduct of such business and keep such property in good repair, working
order and condition and from time to time make, or cause to be made, all needed
and proper repairs, renewals, additions, improvements and replacements thereto
necessary in order that the business carried on in connection therewith may be
properly conducted at all times.


 


SECTION 5.02. Insurance.
(a)  Keep its insurable properties adequately insured at all times by
financially sound and reputable insurers; maintain such other insurance, to
such extent and against such risks, including fire and other risks insured
against by extended coverage, as is customary with companies in the same or
similar businesses operating in the same or similar locations, including public
liability insurance against claims for personal injury or death or property
damage occurring upon, in, about or in connection with the use of any
properties owned, occupied or controlled by it; and maintain such other insurance
as may be required by law.


 


(b)   Cause all such
policies covering any Collateral to be endorsed or otherwise amended to include
a customary lender’s loss payable endorsement and other customary provisions,
in form and substance reasonably satisfactory to the Administrative Agent
and the Collateral Agent; deliver original or certified copies of all such
policies to the


 


42

















 


Collateral
Agent; deliver to the Administrative Agent and the Collateral Agent, prior to
the cancellation, modification or nonrenewal of any such policy of insurance, a
copy of a renewal or replacement policy (or other evidence of renewal of a
policy previously delivered to the Administrative Agent and the Collateral
Agent) together with evidence satisfactory to the Administrative Agent and the
Collateral Agent of payment of the premium therefor.


 


(c)   Notify the
Administrative Agent and the Collateral Agent promptly whenever any separate
insurance concurrent in form or contributing in the event of loss with
that required to be maintained under this Section 5.02 is taken out by any
Loan Party; and promptly deliver to the Administrative Agent and the Collateral
Agent a duplicate original copy of such policy or policies.


 


SECTION 5.03. Obligations
and Taxes. Pay and discharge promptly when due all material
taxes, assessments and governmental charges or levies imposed upon it or upon
its income or profits or in respect of its property, before the same shall
become delinquent or in default, as well as all lawful claims for labor,
materials and supplies or otherwise that, if unpaid, might give rise to a Lien
upon such properties or any part thereof; provided,
however, that such payment and
discharge shall not be required with respect to any such tax, assessment,
charge, levy or claim so long as the validity or amount thereof shall be
contested in good faith by appropriate proceedings and the Borrower shall have
set aside on its books adequate reserves with respect thereto in accordance with
GAAP and such contest operates to suspend collection of the contested
obligation, tax, assessment or charge and enforcement of a Lien and, in the
case of a Mortgaged Property, there is no risk of forfeiture of such property.


 


SECTION 5.04. Financial
Statements, Reports, etc. In the case of the Borrower, furnish
to the Administrative Agent for distribution to each Lender:


 


(a)   within 90 days
after the end of each fiscal year, its consolidated balance sheet and related
statements of income, stockholders’ equity and cash flows showing the financial
condition of the Borrower and its consolidated Subsidiaries as of the close of
such fiscal year and the results of its operations and the operations of such
Subsidiaries during such year, together with comparative figures for the
immediately preceding fiscal year, all audited by
PricewaterhouseCoopers LLP or other independent public accountants of
recognized national standing and accompanied by an opinion of such accountants
(which opinion shall be without a “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 fairly present
the financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied;


 


(b)   within 45 days
after the end of each of the first three fiscal quarters of each fiscal year,
its consolidated balance sheet and related statements of income, stockholders’
equity and cash flows showing the financial condition of the Borrower and its
consolidated Subsidiaries as of the close of such fiscal quarter and the
results of its operations and the operations of such Subsidiaries during such
fiscal quarter and the then


 


43

















 


elapsed
portion of the fiscal year, and comparative figures for the same periods in the
immediately preceding fiscal year, all certified by one of its Financial
Officers as fairly presenting the financial condition and results of operations
of the Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end audit
adjustments;


 


(c)   within 30 days after
the end of each of the first two fiscal months of each fiscal quarter, its
consolidated balance sheet and related statements of income and cash flows
showing the financial condition of the Borrower and its consolidated
Subsidiaries during such fiscal month and the then elapsed portion of the
fiscal year, all certified by one of its Financial Officers as fairly
presenting the financial condition and results of operations of the Borrower
and its consolidated Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied, subject to normal year-end audit adjustments;


 


(d)   concurrently with any
delivery of financial statements under paragraph (a), (b) or (c) above,
a letter of the accounting firm (if such accounting firm is then providing
similar letters for other corporate clients) (in the case of
paragraph (a)) and a certificate of a Financial Officer (in the case of
paragraph (a), (b) or (c)) opining on or certifying such statements
(which letter, when furnished by an accounting firm, may be limited to
accounting matters with respect to Sections 6.11, 6.12 and 6.13 and disclaim
responsibility for legal interpretations) (i) certifying that no Event of
Default or Default has occurred or, if such an Event of Default or Default has
occurred, specifying the nature and extent thereof and any corrective action
taken or proposed to be taken with respect thereto, (ii) setting forth
computations in reasonable detail satisfactory to the Administrative Agent
demonstrating compliance with the covenants contained in Sections 6.10, 6.11,
6.12 and 6.13 and, in the case of a certificate delivered with the financial
statements required by paragraph (a) above, setting forth the
Borrower’s calculation of Excess Cash Flow, and (iii) in the case of any
certificate delivered by a Financial Officer, describing any Asset Sales that
were consummated during the preceding period and the amount and the use or the
intended use of the Net Cash Proceeds thereof;


 


(e)   within 90 days
after the commencement of each fiscal year of the Borrower, a 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 summarizing the assumptions used for purposes of
preparing such budget);


 


(f)   promptly after the
same become publicly available, copies of all periodic and other reports, proxy
statements and other materials filed by the Borrower or any Subsidiary with the
Securities and Exchange Commission, or any Governmental Authority succeeding to
any or all of the functions of said Commission, or with any national securities
exchange, or distributed to its shareholders, as the case may be;


 


44

















 


(g)   promptly after the
receipt thereof by the Borrower or any of the Subsidiaries, a copy of any “management
letter” received by any such person from its certified public accountants and
the management’s response thereto;


 


(h)   promptly after the
request by any Lender, all documentation and other information that such Lender
reasonably requests in order to comply with its ongoing obligations under
applicable “know your customer” and anti-money laundering rules and
regulations, including the USA PATRIOT Act; and


 


(i)   promptly, from time to
time, 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, through
the Administrative Agent, may reasonably request.


 


SECTION 5.05. Litigation
and Other Notices. Furnish to the Administrative Agent and each
Lender prompt written notice of the following:


 


(a)   any Event of Default
or Default, specifying the nature and extent thereof and the corrective action
(if any) taken or proposed to be taken with respect thereto;


 


(b)   the filing or
commencement of, or any threat or notice of intention of any person to file or
commence, any action, suit or proceeding, whether at law or in equity or by or
before any Governmental Authority, against the Borrower or any Affiliate
thereof that could reasonably be expected to result in a Material Adverse
Effect;


 


(c)   any development that
has resulted in, or could reasonably be expected to result in, a Material
Adverse Effect; and


 


(d)   any notice of any
change in the ratings of the Credit Facility by S&P or Moody’s, or any
notice from either such agency indicating its intent to effect such a change or
to place the Borrower or the Credit Facility on a “CreditWatch” or “WatchList”
or any similar list, in each case with negative implications, or its cessation
of, or its intent to cease, rating the Credit Facility.


 


SECTION 5.06. Information
Regarding Collateral. (a)  Furnish to the Administrative
Agent prompt written notice of any change (i) in any Loan Party’s
corporate name, (ii) in the jurisdiction of organization or formation of
any Loan Party, (iii) in any Loan Party’s identity or corporate structure
or (iv) in any Loan Party’s Federal Taxpayer Identification Number. The
Borrower agrees 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 Collateral Agent to
continue at all times following such change to have a valid, legal and
perfected security interest in all the Collateral.


 


(b)   In the case of the
Borrower, each year, at the time of delivery of the annual financial statements
with respect to the preceding fiscal year pursuant to Section 5.04(a),
deliver to the Administrative Agent a certificate of a Financial Officer
setting forth the information required pursuant to Section 2 of the
Perfection Certificate or confirming that


 


45

















 


there
has been no change in such information since the date of the Perfection
Certificate delivered on the Closing Date or the date of the most recent
certificate delivered pursuant to this Section 5.06.


 


SECTION 5.07. Maintaining
Records; Access to Properties and Inspections; Maintenance of Ratings.
(a)  Keep proper books of record and account in which full, true and
correct entries in conformity with GAAP and all requirements of law are made of
all dealings and transactions in relation to its business and activities. Each
Loan Party will, and will cause each of its subsidiaries to, permit any
representatives designated by the Administrative Agent or, during the existence
of any Event of Default, any Lender to visit and inspect the financial records
and the properties of such person at reasonable times and as often as
reasonably requested and to make extracts from and copies of such financial
records, and permit any representatives designated by the Administrative Agent
or, during the existence of any Event of Default, any Lender to discuss the
affairs, finances and condition of such person with the officers thereof and
independent accountants therefor.


 


(b)   In the case of the
Borrower, use commercially reasonable efforts to cause the Credit Facility to
be rated by S&P and Moody’s.


 


SECTION 5.08. Use
of Proceeds. Use the proceeds of the Loans only for the purposes
specified in the introductory statement to this Agreement.


 


SECTION 5.09. Employee
Benefits. (a) With respect to all Plans, Multiemployer
Plans and Foreign Pension Plans, comply in all material respects with the
applicable provisions of ERISA and the Code and the laws applicable to any
Foreign Pension Plan and (b) furnish to the Administrative Agent as soon
as possible after, and in any event within ten days after any responsible
officer of the Borrower or any ERISA Affiliate knows or has reason to know
that, any ERISA Event has occurred that, alone or together with any other ERISA
Event could reasonably be expected to result in material liability of the
Borrower or any Subsidiary, a statement of a Financial Officer of the Borrower
setting forth details as to such ERISA Event and the action, if any, that the
Borrower proposes to take with respect thereto.


 


SECTION 5.10. Compliance
with Environmental Laws. Except as could not reasonably be
expected to result in a Material Adverse Effect, (a) comply, and cause all
lessees and other persons occupying its properties to comply, in all material
respects with all Environmental Laws applicable to its operations and
properties; and (b) obtain and renew all material environmental permits
necessary for its operations and properties; and conduct any remedial action in
accordance with Environmental Laws.


 


SECTION 5.11. Further
Assurances. Execute any and all further documents, financing
statements, agreements and instruments, and take or cause to be taken all
further action (including filing Uniform Commercial Code and other
financing statements, mortgages and deeds of trust) that may be required
under applicable law, or that the Required Lenders, the Administrative Agent or
the Collateral Agent may reasonably request, in order to effectuate the
transactions contemplated by the Loan


 


46

















 


Documents
and in order to grant, preserve, protect and perfect the validity and first
priority of the security interests created or intended to be created by the
Security Documents. The Borrower will cause any subsequently acquired or
organized Domestic Subsidiary to become a Loan Party by executing the Guarantee
Agreement. In addition, from time to time, the Borrower will, at its cost and
expense, promptly secure the Obligations by pledging or creating, or causing to
be pledged or created, perfected security interests with respect to such of its
assets and properties as the Administrative Agent or the Required Lenders shall
designate (it being understood that it is the intent of the parties that the
Obligations shall be secured by, among other things, substantially all the
assets of the Borrower (including real and other properties acquired subsequent
to the Closing Date)). Such security interests and Liens will be created under
the Security Documents and other security agreements, mortgages, deeds of trust
and other instruments and documents in form and substance satisfactory to
the Collateral Agent, and the Borrower shall deliver or cause to be delivered
to the Lenders all such instruments and documents (including legal opinions,
title insurance policies and lien searches) as the Collateral Agent shall
reasonably request to evidence compliance with this Section. The Borrower
agrees to provide such evidence as the Collateral Agent shall reasonably
request as to the perfection and priority status of each such security interest
and Lien. In furtherance of the foregoing, the Borrower will give prompt notice
to the Administrative Agent of the acquisition by it of any real property (or
any interest in real property) having a value in excess of $250,000.


 


SECTION 5.12. Interest
Rate Protection. No later than the 180th day after the Closing
Date, the Borrower shall enter into, and for a minimum of one year thereafter
maintain, Hedging Agreements acceptable to the Administrative Agent that result
in at least 50% of the aggregate principal amount of its funded long-term
Indebtedness being effectively subject to a fixed or maximum interest rate
acceptable to the Administrative Agent.


 


ARTICLE VI


 


Negative
Covenants


 


The Borrower covenants and agrees with each Lender that,
so long as this Agreement shall remain in effect and until the Commitments have
been terminated and the principal of and interest on each Loan, all Fees and
all other expenses or amounts payable under any Loan Document have been paid in
full, unless the Required Lenders shall otherwise consent in writing, the
Borrower will not, nor will it cause or permit any of the Subsidiaries to:


 


SECTION 6.01. Indebtedness.
Incur, create, assume or permit to exist any Indebtedness (including any
Disqualified Stock), except:


 


(a) Indebtedness existing on the date hereof
and set forth in Schedule 6.01 and any extensions, renewals or
replacements of such Indebtedness to the extent the principal amount of such
Indebtedness is not increased, neither the final maturity nor the weighted
average life to maturity of such Indebtedness is


 


47

















 


decreased, such Indebtedness, if subordinated to the Obligations,
remains so subordinated on terms no less favorable to the Lenders, and the
original obligors in respect of such Indebtedness remain the only obligors
thereon;


 


(b) Indebtedness created
hereunder and under the other Loan Documents;


 


(c) Indebtedness under the Second Lien Credit
Agreement in an aggregate principal amount at any time outstanding not to
exceed $50,000,000;


 


(d) intercompany Indebtedness of the Borrower
and the Subsidiaries to the extent permitted by Section 6.04(c);


 


(e) Indebtedness of the Borrower or any
Subsidiary incurred to finance the acquisition, construction or improvement of
any fixed or capital assets, and extensions, renewals and replacements of any
such Indebtedness that do not increase the outstanding principal amount
thereof; provided that (i) such
Indebtedness is incurred prior to or within 90 days after such acquisition or
the completion of such construction or improvement and (ii) the aggregate
principal amount of Indebtedness permitted by this Section 6.01(e), when
combined with the aggregate principal amount of all Capital Lease Obligations
and Synthetic Lease Obligations incurred pursuant to Section 6.01(f) shall
not exceed $5,000,000 at any time outstanding;


 


(f) Capital Lease Obligations and Synthetic
Lease Obligations in an aggregate principal amount, when combined with the
aggregate principal amount of all Indebtedness incurred pursuant to Section 6.01(e),
not in excess of $5,000,000 at any time outstanding;


 


(g) Indebtedness under performance bonds or
with respect to workers’ compensation claims, in each case incurred in the
ordinary course of business;


 


(h) Indebtedness acquired or assumed by the
Borrower or any Subsidiary in connection with any Permitted Acquisition in an
aggregate principal amount not in excess of $10,000,000 at any time
outstanding; provided that such
Indebtedness existed at the time of such Permitted Acquisition and was not
created in connection therewith or in contemplation thereof;


 


(i) Guarantees of Indebtedness of the Borrower
or any of its Subsidiaries that is incurred in compliance with this Section 6.01;
provided, however, that any such
Guarantee by the Borrower of Indebtedness of a Subsidiary shall be deemed to be
an investment in such Subsidiary for purposes of Section 6.04(a); and


 


(j) other Indebtedness of the Borrower or the
Subsidiaries in an aggregate principal amount not exceeding $5,000,000 at any
time outstanding.


 


SECTION 6.02. Liens.
Create, incur, assume or permit to exist any Lien on any property or assets
(including Equity Interests or other securities of any person, including


 


48

















 


any
Subsidiary) now owned or hereafter acquired by it or on any income or revenues
or rights in respect of any thereof, except:


 


(a) Liens on property or assets of the Borrower
and its Subsidiaries existing on the date hereof and set forth in Schedule 6.02;
provided that such Liens shall
secure only those obligations which they secure on the date hereof and
extensions, renewals and replacements thereof permitted hereunder;


 


(b) any Lien created under the Loan Documents;


 


(c) the Second Priority Liens;


 


(d) Liens for taxes not yet due or which are
being contested in compliance with Section 5.03;


 


(e) landlords’, carriers’, warehousemen’s,
mechanics’, materialmen’s, repairmen’s or other like Liens arising in the
ordinary course of business and securing obligations that are not due overdue
by more than 30 days or which are being contested in compliance with Section 5.03;


 


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


 


(g) deposits to secure the performance of bids,
trade contracts (other than for Indebtedness), leases (other than Capital Lease
Obligations), statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature incurred in the ordinary course of
business;


 


(h) zoning restrictions, easements,
rights-of-way, restrictions on use of real property and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and do not materially detract from the
value of the property subject thereto or interfere with the ordinary conduct of
the business of the Borrower or any of its Subsidiaries;


 


(i) purchase money security interests in real
property, improvements thereto or equipment hereafter acquired (or, in the case
of improvements, constructed) by the Borrower or any Subsidiary; provided that (i) such security
interests secure Indebtedness permitted by Section 6.01, (ii) such
security interests are incurred, and the Indebtedness secured thereby is
created, within 180 days after such acquisition (or construction), (iii) the
Indebtedness secured thereby does not exceed the lesser of the cost or the fair
market value of such real property, improvements or equipment at the time of
such acquisition (or construction) and (iv) such security interests do not
apply to any other property or assets of the Borrower or any Subsidiary;


 


(j) Liens arising out of judgments that do not
constitute an Event of Default under paragraph (i) of Article VII;
and


 


49

















 


(k) other Liens that do not, individually or in the
aggregate, secure obligations (or encumber property with a fair market value)
in excess of $3,500,000.


 


SECTION 6.03. Sale
and Lease-Back Transactions. Enter into any arrangement,
directly or indirectly, with any person 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 which it intends to use for substantially the same purpose or purposes
as the property being sold or transferred.


 


SECTION 6.04. Investments,
Loans and Advances. Purchase, hold or acquire any Equity
Interests, evidences of indebtedness or other securities of, make or permit to
exist any loans or advances to, or make or permit to exist any investment or
any other interest in, any other person, except:


 


(a) (i) investments by the Borrower and
the Subsidiaries existing on the date hereof in the Equity Interests of the
Subsidiaries and (ii) additional investments by the Borrower and the
Subsidiaries in the Equity Interests of the Subsidiaries; provided that (A) any such Equity
Interests held by the Borrower shall be pledged pursuant to the Pledge and
Security Agreement (subject to the limitations applicable to voting stock of a
Foreign Subsidiary referred to therein) and (B) the aggregate amount of
investments made after the Closing Date by the Borrower in, and loans and
advances made after the Closing Date by the Borrower to, Subsidiaries
(determined without regard to any write-downs or write-offs of such
investments, loans and advances) shall not exceed $10,000,000 at any time
outstanding (net of intercompany royalties, service fees and dividends, in each
case paid by any Subsidiary to the Borrower);


 


(b) Permitted Investments;


 


(c) loans or advances made by 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 the Borrower shall be evidenced by a promissory
note pledged to the Collateral Agent for the ratable benefit of the Secured
Parties pursuant to the Pledge and Security Agreement and (ii) the amount
of such loans and advances made by the Borrower to Subsidiaries shall be
subject to the limitation set forth in clause (a) above;


 


(d) 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;


 


(e) the Borrower and the Subsidiaries may make
loans and advances in the ordinary course of business to their respective
employees so long as the aggregate principal amount thereof at any time
outstanding (determined without regard to


 


50

















 


any write-downs or write-offs of such loans and advances) shall not
exceed $1,000,000;


 


(f) the Borrower and the Subsidiaries may enter
into Hedging Agreements that (i) are required by Section 5.12 or (ii) are
not speculative in nature;


 


(g) the Borrower or any Subsidiary may acquire
all or substantially all the assets of a person or line of business of such
person, or not less than 100% of the Equity Interests (other than directors’
qualifying shares) of a person (referred to herein as the “Acquired Entity”); provided that (i) such acquisition
was not preceded by an unsolicited tender offer for such Equity Interests by,
or proxy contest initiated by, the Borrower or any Subsidiary; and (ii) at
the time of such transaction (A) both before and after giving effect
thereto, no Default or Event of Default shall have occurred and be continuing; (B) the
Borrower would be in compliance with the covenants set forth in
Sections 6.11, 6.12 and 6.13 as of the most recently completed period of
four consecutive fiscal quarters ending prior to such transaction for which the
financial statements and certificates required by Section 5.04(a) or
5.04(b) have been delivered, after giving pro forma effect to such
transaction and to any other event occurring after such period as to which pro
forma recalculation is appropriate (including any other transaction described
in this Section 6.04(g) occurring after such period) as if such
transaction had occurred as of the first day of such period; (C) the total
consideration paid in connection with such acquisition and any other
acquisitions pursuant to this Section 6.04(g) (including any Indebtedness
of the Acquired Entity that is assumed by the Borrower or any Subsidiary
following such acquisition) shall not in the aggregate exceed $25,000,000; and (D) the
Borrower shall have delivered a certificate of a Financial Officer, certifying
as to the foregoing and containing reasonably detailed calculations in support
thereof, in form and substance satisfactory to the Administrative Agent
(any acquisition of an Acquired Entity meeting all the criteria of this Section 6.04(g) being
referred to herein as a “Permitted
Acquisition”); and


 


(g) in addition to investments permitted by
paragraphs (a) through (g) above, additional investments, loans and
advances by the Borrower and the Subsidiaries so long as the aggregate amount
invested, loaned or advanced pursuant to this paragraph (h) (determined
without regard to any write-downs or write-offs of such investments, loans and
advances) does not exceed $7,500,000 in the aggregate (plus any returns of
capital actually received by the Borrower or the Subsidiary investor in respect
of investments theretofore made by it pursuant to this paragraph (h)).


 


SECTION 6.05. Mergers,
Consolidations, Sales of Assets and Acquisitions. (a) 
Merge into or consolidate with any other person, or permit any other person to
merge into or consolidate with it, or sell, transfer, lease or otherwise
dispose of (in one transaction or in a series of transactions) all or
substantially all the assets (whether now owned or hereafter acquired) of the
Borrower or less than all the Equity Interests of any Subsidiary, or purchase,
lease or otherwise acquire (in one transaction or a series of


 


51

















 


transactions)
all or any substantial part of the assets of any other person, except that
(i) the Borrower and any Subsidiary may purchase and sell inventory
in the ordinary course of business and (ii) if at the time thereof and
immediately after giving effect thereto no Event of Default or Default shall
have occurred and be continuing (x) any Subsidiary may merge into the
Borrower or a wholly owned Subsidiary in a transaction in which the surviving
entity is the Borrower or a wholly owned Subsidiary and no person other than
the Borrower or a wholly owned Subsidiary receives any consideration (provided that if any party to any such
transaction is a Loan Party, the surviving entity of such transaction shall be
a Loan Party) and (y) the Borrower and the Subsidiaries may make
investments and acquisitions permitted by Section 6.04.


 


(b)   Make any Asset Sale
not otherwise permitted under paragraph (a) above unless (i) such
Asset Sale is for consideration at least 75% of which is cash or cash
equivalents promptly converted to cash, (ii) such consideration is at
least equal to the fair market value of the assets being sold, transferred,
leased or disposed of and (iii) the fair market value of all assets sold,
transferred, leased or disposed of pursuant to this paragraph (b) shall
not exceed (i) $3,000,000 in any fiscal year or (ii) $15,000,000 in
the aggregate.


 


SECTION 6.06. Restricted
Payments; Restrictive Agreements. (a)  Declare or make, or
agree to declare or make, directly or indirectly, any Restricted Payment
(including pursuant to any Synthetic Purchase Agreement), or incur any
obligation (contingent or otherwise) to do so; provided,
however, that (i) any
Subsidiary may declare and pay dividends or make other distributions
ratably to its equity holders, (ii) the Borrower and the Subsidiaries may pay
dividends in respect of Disqualified Stock permitted to be issued hereunder and
(iii) the Borrower may make Tax Payments to Parent; provided, however,
that the amount of such Tax Payments shall not exceed the amount that the
Borrower and the Subsidiaries would be required to pay in respect of Federal,
State and local taxes were the Borrower and the Subsidiaries to pay such taxes
as stand-alone taxpayers.


 


(b)   Enter into, incur or
permit to exist any agreement or other arrangement that prohibits, restricts or
imposes any condition upon (i) the ability of the Borrower or any
Subsidiary to create, incur or permit to exist any Lien upon any of its
property or assets, or (ii) the ability of any Subsidiary to pay dividends
or other distributions with respect to any of its Equity Interests 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 (A) the foregoing shall
not apply to restrictions and conditions imposed by law or by any Loan
Document, (B) 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, (C) the foregoing shall not apply to
restrictions and conditions imposed on any Foreign Subsidiary by the terms of
any Indebtedness of such Foreign Subsidiary permitted to be incurred hereunder,
(D) clause (i) 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 securing such Indebtedness, (E) the foregoing shall
not apply to restrictions and conditions contained in the Second Lien Loan
Documents, (F) clause (i) of the foregoing shall


 


52

















 


not
apply to customary provisions in leases and other contracts restricting the
assignment thereof and (G) clause (i) of the foregoing shall not
apply to restrictions and conditions contained in the Parent Credit Agreement.


 


SECTION 6.07. Transactions
with Affiliates. Except for transactions described on Schedule 6.07,
sell or transfer any property or assets to, or purchase or acquire any property
or assets from, or otherwise engage in any other transactions with, any of its
Affiliates other than the Borrower or any of its wholly owned Subsidiaries,
except that the Borrower or any Subsidiary may engage in any of the
foregoing transactions 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.


 


SECTION 6.08. Business
of the Borrower and Subsidiaries. Engage at any time in any
business or business activity other than the business currently conducted by it
and business activities reasonably incidental or ancillary thereto.


 


SECTION 6.09. Other
Indebtedness and Agreements. (a)  Permit any waiver,
supplement, modification or amendment of the Second Lien Credit Agreement or
the Loan Documents (as defined therein) if the effect of such waiver,
supplement, modification or amendment would materially increase the obligations
of the obligor or confer additional material rights on the holders of such
Indebtedness in a manner materially adverse to the Borrower, any of the
Subsidiaries or the Lenders; provided
that the foregoing will not prohibit any waiver, supplement, modification or
amendment of the Second Lien Credit Agreement or the Loan Documents (as defined
therein) expressly permitted by the Intercreditor Agreement.


 


(b)   (i)  Make
any distribution, whether in cash, property, securities or a combination
thereof, other than regular scheduled payments of interest as and when due, in
respect of, or pay, or offer or commit to pay, or directly or indirectly
(including pursuant to any Synthetic Purchase Agreement) redeem, repurchase,
retire or otherwise acquire for consideration, or set apart any sum for
the aforesaid purposes, any Indebtedness under the Second Lien Credit Agreement
(other than with Declined Proceeds applied in accordance with the mandatory
prepayment provisions of the Second Lien Credit Agreement as contemplated by Section 2.13(e)),
or (ii) pay in cash any amount in respect of any Indebtedness or preferred
Equity Interests that may at the obligor’s option be paid in kind or in
other securities.


 


SECTION 6.10. Capital
Expenditures. (a)  Permit the aggregate amount of Capital
Expenditures made by the Borrower and the Subsidiaries in any fiscal year to
exceed $9,000,000.


 


(b)   The unused amount of
permitted Capital Expenditures set forth in paragraph (a) above in
respect of any fiscal year commencing with the fiscal year ending on December 31,
2006, may be carried forward and used in the next succeeding fiscal year.
For purposes of this paragraph, the amount of Capital Expenditures made in any
fiscal year shall be allocated first,
to the amount carried forward to such fiscal year from


 


53

















 


the
immediately preceding fiscal year, and second,
to the scheduled amount permitted under paragraph (a) above for such
fiscal year.


 


54

















 


SECTION 6.11. Interest
Coverage Ratio. Permit the Interest Coverage Ratio for any
period of four consecutive fiscal quarters, in each case taken as one
accounting period, set forth below to be less than the ratio set forth below
for such fiscal quarter:


 


	
  Fiscal Year

  	
   

  	
  First Quarter

  	
   

  	
  Second Quarter

  	
   

  	
  Third Quarter

  	
   

  	
  Fourth Quarter

  	
   

  
	
  2006

  	
   

  	
  1.85:1

  	
   

  	
  1.85:1

  	
   

  	
  1.85:1

  	
   

  	
  2.00:1

  	
   

  
	
  2007

  	
   

  	
  2.00:1

  	
   

  	
  2.00:1

  	
   

  	
  2.25:1

  	
   

  	
  2.25:1

  	
   

  
	
  2008

  	
   

  	
  3.00:1

  	
   

  	
  3.00:1

  	
   

  	
  3.00:1

  	
   

  	
  3.00:1

  	
   

  
	
  2009 and
  thereafter

  	
   

  	
  3.50:1

  	
   

  	
  3.50:1

  	
   

  	
  3.50:1

  	
   

  	
  3.50:1

  	
   

  



 


SECTION 6.12. Fixed
Charge Coverage Ratio. Permit the Fixed Charge Coverage Ratio
for any period of four consecutive fiscal quarters, in each case taken as one
accounting period, to be less than 1.25 to 1.00.


 


SECTION 6.13. Maximum
Leverage Ratio. Permit
the Leverage Ratio at the end of any fiscal quarter set forth below to be
greater than the ratio set forth below for such fiscal quarter:


 


	
  Fiscal Year

  	
   

  	
  First Quarter

  	
   

  	
  Second Quarter

  	
   

  	
  Third Quarter

  	
   

  	
  Fourth Quarter

  	
   

  
	
  2006

  	
   

  	
  6.75:1

  	
   

  	
  6.75:1

  	
   

  	
  6.75:1

  	
   

  	
  6.50:1

  	
   

  
	
  2007

  	
   

  	
  6.00:1

  	
   

  	
  5.75:1

  	
   

  	
  5.50:1

  	
   

  	
  5.25:1

  	
   

  
	
  2008

  	
   

  	
  4.25:1

  	
   

  	
  4.25:1

  	
   

  	
  4.25:1

  	
   

  	
  4.25:1

  	
   

  
	
  2009 and
  thereafter

  	
   

  	
  3.50:1

  	
   

  	
  3.50:1

  	
   

  	
  3.50:1

  	
   

  	
  3.50:1

  	
   

  



 


SECTION 6.14. Fiscal
Year. With respect to the Borrower, change its fiscal year-end
to a date other than December 31 (or a date that is no more than five days
before or after December 31).


 


ARTICLE VII


 


Events of Default


 


In case of the happening of any of the following
events (each, an “Event
of Default”):


 


(a) any representation or warranty made or
deemed made in or in connection with any Loan Document or the borrowings
hereunder, or any representation, warranty, statement or information contained
in any report, certificate, financial statement or other instrument furnished
in connection with or pursuant to any Loan Document, shall prove to have been
false or misleading in any material respect when so made, deemed made or
furnished;


 


55

















 


(b) default shall be made in the payment of any
principal of any Loan 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 by
acceleration thereof or otherwise;


 


(c) default shall be made in the payment of any
interest on any Loan or any Fee or other amount (other than an amount referred
to in (b) above) due under any Loan Document, when and as the same shall
become due and payable, and such default shall continue unremedied for a period
of three Business Days;


 


(d) default shall be made in the due observance
or performance by the Borrower or any Subsidiary of any covenant, condition or
agreement contained in Section 5.01(a) (with respect to the Borrower
only) or 5.08 or in Article VI;


 


(e) default shall be made in the due observance
or performance by the Borrower or any Subsidiary of any covenant, condition or
agreement contained in any Loan Document (other than those specified in (b), (c) or
(d) above) and such default shall continue unremedied for a period of
30 days after notice thereof from the Administrative Agent or the Required
Lenders to the Borrower;


 


(f) (i)  the Borrower or any
Subsidiary shall fail to pay any principal or interest, regardless of amount,
due in respect of any Material Indebtedness, when and as the same shall become
due and payable, or (ii) any other 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 (ii) 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;


 


(g) an involuntary proceeding shall be
commenced or an involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of the Borrower or any
Subsidiary, or of a substantial part of the property or assets of the
Borrower or a Subsidiary, under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other Federal, state or foreign
bankruptcy, insolvency, receivership or similar law, (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar
official for the Borrower or any Subsidiary or for a substantial part of
the property or assets of the Borrower or a Subsidiary or (iii) the
winding-up or liquidation of the Borrower or any Subsidiary; and 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;


 


56

















 


(h) the Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title 11
of the United States Code, as now constituted or hereafter amended, or any
other Federal, state or foreign bankruptcy, insolvency, receivership or similar
law, (ii) consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or the filing of any petition described
in (g) above, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for
the Borrower or any Subsidiary or for a substantial part of the property
or assets of the Borrower or any Subsidiary, (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, (vi) become
unable, admit in writing its inability or fail generally to pay its debts as
they become due or (vii) take any action for the purpose of effecting any
of the foregoing;


 


(i) one or more judgments shall be rendered
against the Borrower, any Subsidiary or any combination thereof and the same
shall remain undischarged for a period of 60 consecutive days during which
execution shall not be effectively stayed, or any action shall be legally taken
by a judgment creditor to levy upon assets or properties of the Borrower or any
Subsidiary to enforce any such judgment and such judgment is for the payment of
money in an aggregate amount in excess of $2,500,000;


 


(j) an ERISA Event shall have occurred that, when
taken together with all other such ERISA Events, could reasonably be expected
to result in a Material Adverse Effect;


 


(k) any Guarantee under the Guarantee Agreement for
any reason shall cease to be in full force and effect (other than in accordance
with its terms), or any Guarantor shall deny in writing that it has any further
liability under the Guarantee Agreement (other than as a result of the
discharge of such Guarantor in accordance with the terms of the Loan
Documents);


 


(l) any security interest purported to be created by
any Security Document shall cease to be, or shall be asserted by the Borrower,
any other Loan Party or Parent not to be, a valid, perfected, first priority
(except as otherwise expressly provided in this Agreement or such Security
Document) security interest in the securities, assets or properties covered
thereby, except to the extent that any such loss of perfection or priority
results from the failure of the Collateral Agent to maintain possession of
certificates representing securities pledged under such Security Document; or


 


(m) there shall have occurred a Change in Control;


 


then, and in every such event (other than an event
with respect to the Borrower described in paragraph (g) or (h) above),
and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the


 


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Required
Lenders shall, by notice to the Borrower, take either or both of the following
actions, at the same or different times:  (i) terminate
forthwith the Commitments and (ii) declare the Loans then outstanding to
be forthwith due and payable in whole or in part, whereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and any unpaid accrued Fees and all other liabilities of the Borrower
accrued hereunder and under any other Loan Document, shall become forthwith due
and payable, without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived by the Borrower, anything
contained herein or in any other Loan Document to the contrary notwithstanding;
and in any event with respect to the Borrower described in paragraph (g) or
(h) above, the Commitments shall automatically terminate and the principal
of the Loans then outstanding, together with accrued interest thereon and any
unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder
and under any other Loan Document, shall automatically become due and payable,
without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived by the Borrower, anything contained herein or
in any other Loan Document to the contrary notwithstanding.


 


ARTICLE VIII


 


The
Administrative Agent and the Collateral Agent


 


Each Lender hereby irrevocably appoints the
Administrative Agent and the Collateral Agent (for purposes of this Article VIII,
the Administrative Agent and the Collateral Agent are referred to collectively
as the “Agents”)
its agent and authorizes the Agents to take such actions on its behalf and to
exercise such powers as are delegated to such Agent by the terms of the Loan
Documents, together with such actions and powers as are reasonably incidental
thereto. Without limiting the generality of the foregoing, the Agents are
hereby expressly authorized to execute any and all documents (including
releases) with respect to the Collateral and the rights of the Secured Parties
with respect thereto, as contemplated by and in accordance with the provisions
of this Agreement and the Security Documents. Each of the Lenders acknowledges
and agrees that the Collateral Agent shall also act, subject to and in
accordance with the terms of the Intercreditor Agreement, as the collateral
agent for the lenders under the Second Lien Credit Agreement.


 


The bank serving as the Administrative Agent and/or
the Collateral 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 an Agent, and such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
the Borrower or any Subsidiary or other Affiliate thereof as if it were not an
Agent hereunder.


 


Neither Agent shall have any duties or obligations
except those expressly set forth in the Loan Documents. Without limiting the
generality of the foregoing, (a) neither Agent shall be subject to any
fiduciary or other implied duties, regardless of whether a Default has occurred
and is continuing, (b) neither Agent shall have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and


 


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powers
expressly contemplated hereby that such Agent is instructed in writing to
exercise by the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section 9.08),
and (c) except as expressly set forth in the Loan Documents, neither Agent
shall have any duty to disclose, nor shall it be liable for the failure to
disclose, any information relating to the Borrower or any of the Subsidiaries
that is communicated to or obtained by the bank serving as Administrative Agent
and/or Collateral Agent or any of its Affiliates in any capacity. Neither Agent
shall 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 9.08)
or in the absence of its own gross negligence or willful misconduct. Neither
Agent shall be deemed to have knowledge of any Default unless and until written
notice thereof is given to such Agent by the Borrower or a Lender, and neither
Agent shall 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 such Agent.


 


Each 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. Each Agent may also
rely upon any statement made to it orally or by telephone and believed by it to
have been made by the proper person, and shall not incur any liability for
relying thereon. Each Agent may consult with legal counsel (who may be
counsel for the Borrower), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.


 


Each 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 it. Each Agent and any such sub-agent may perform any
and all its duties and exercise its rights and powers by or 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 each
Agent and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facility provided for herein as
well as activities as Agent.


 


Subject to the appointment and acceptance of a
successor Agent as provided below, either Agent may resign at any time by
notifying the Lenders and the Borrower. Upon any such resignation, the Required
Lenders shall have the right, with the consent of the Borrower (not to be
unreasonably withheld or delayed and so long as no Event of Default shall have
occurred and be continuing), to appoint a successor. If no successor shall have
been so appointed by the Required Lenders and shall have accepted such


 


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appointment
within 30 days after the retiring Agent gives notice of its resignation,
then the retiring Agent may, on behalf of the Lenders, appoint a successor
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 Agent
hereunder by a successor, such successor shall succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and obligations hereunder.
The fees payable by the Borrower to a successor Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Borrower
and such successor. After an Agent’s resignation hereunder, the provisions of
this Article and Section 9.05 shall continue in effect for the
benefit of such retiring Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while acting as Agent.


 


Each Lender acknowledges that it has, independently
and without reliance upon the Agents 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 Agents
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 or any other
Loan Document, any related agreement or any document furnished hereunder or
thereunder.


 


ARTICLE IX


 


Miscellaneous


 


SECTION 9.01. Notices.
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 fax, as follows:


 


(a)   if to the Borrower, to
it at 11 Madison Avenue, 17th Floor, New York, NY 10010, Attention
of General Counsel (Fax No. (212) 589-2601);


 


(b)   if to the
Administrative Agent or the Collateral Agent, to Credit Suisse, Eleven Madison
Avenue, New York, NY 10010, Attention of Agency Group (Fax No. (212)
325-8304); and


 


(c)   if to a Lender, to it
at its address (or fax number) set forth on Schedule 2.01 or in the
Assignment and Acceptance pursuant to which such Lender shall have become a
party hereto.


 


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 if delivered by hand or
overnight courier service or sent by fax or on the date five Business Days
after dispatch by certified or registered mail if mailed, in each case
delivered, sent or mailed (properly addressed) to such party as provided in
this


 


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Section 9.01
or in accordance with the latest unrevoked direction from such party given in
accordance with this Section 9.01. As agreed to among the Borrower, the
Administrative Agent and the applicable Lenders from time to time, notices and
other communications may also be delivered by e-mail to the e-mail address
of a representative of the applicable person provided from time to time by such
person.


 


SECTION 9.02. Survival
of Agreement. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments prepared or delivered in connection with or pursuant to this
Agreement or any other Loan Document shall be considered to have been relied
upon by the Lenders and shall survive the making by the Lenders of the Loans,
regardless of any investigation made by the Lenders or on their behalf, 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 or any other Loan Document is outstanding and unpaid and so long as
the Commitments have not been terminated. The provisions of Sections 2.14,
2.16, 2.20 and 9.05 shall remain operative and in full force and effect
regardless of the expiration of the term of this Agreement, the consummation of
the transactions contemplated hereby, the repayment of any of the Loans, the
expiration of the Commitments, the invalidity or unenforceability of any term
or provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Administrative Agent, the Collateral Agent or any
Lender.


 


SECTION 9.03. Binding
Effect. This Agreement shall become effective when it shall have
been executed by the Borrower and 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.


 


SECTION 9.04. Successors
and Assigns. (a)  Whenever in this Agreement any of the
parties hereto is referred to, such reference shall be deemed to include the
permitted successors and assigns of such party; and all covenants, promises and
agreements by or on behalf of the Borrower, the Administrative Agent, the
Collateral Agent or the Lenders that are contained in this Agreement shall bind
and inure to the benefit of their respective successors and assigns.


 


(b)   Each Lender may assign
to one or more Eligible Assignees all or a portion of its interests, rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans at the time owing to it), with the prior written consent of the
Borrower and the Administrative Agent (in each case not to be unreasonably
withheld or delayed); provided, however, that (i) the amount of the
Commitment or Loans of the assigning Lender subject to each such assignment and
after giving effect to such assignment (in each case determined as of the date
the Assignment and Acceptance with respect to such assignment is delivered to
the Administrative Agent) shall not be less than $1,000,000 (provided that the Loans and Commitments of
Lenders that are Affiliates or Related Funds shall be aggregated for purposes
of determining such minimum amount), (ii) the parties to each such
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance via an electronic settlement system acceptable to the
Administrative Agent (or, if previously agreed with the Administrative Agent,


 


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manually)
and shall pay to the Administrative Agent a processing and recordation fee of
$3,500 (which fee may be waived or reduced in the sole discretion of the
Administrative Agent), provided
that only one such fee shall be payable in the case of concurrent assignments
to persons that, after giving effect to such assignments, will be Related
Funds, (iii) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire and all applicable tax
forms and (iv) the consent of the Borrower shall not be required (A) if
such assignment is made to another Lender or an Affiliate or Related Fund of a
Lender or (B) after the occurrence and during the continuance of an Event
of Default. Upon acceptance and recording pursuant to paragraph (e) of
this Section 9.04, from and after the effective date specified in each
Assignment and Acceptance, (A) the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement
and (B) the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of
Sections 2.14, 2.16, 2.20 and 9.05.


 


(c)   By executing and
delivering an Assignment and Acceptance, the assigning Lender thereunder and
the assignee thereunder shall be deemed to confirm to and agree with each other
and the other parties hereto as follows:  (i) such assigning
Lender warrants that it is the legal and beneficial owner of the interest being
assigned thereby free and clear of any adverse claim and that its Commitment,
and the outstanding balances of its Loans, in each case without giving effect
to assignments thereof which have not become effective, are as set forth in
such Assignment and Acceptance, (ii) except as set forth in (i) above,
such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement, any
other Loan Document or any other instrument or document furnished pursuant
hereto, or the financial condition of the Borrower or any Subsidiary or the
performance or observance by the Borrower or any Subsidiary of any of its
obligations under this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto; (iii) such assignee
represents and warrants that it is an Eligible Assignee, legally authorized to
enter into such Assignment and Acceptance; (iv) such assignee confirms
that it has received a copy of this Agreement, together with copies of the most
recent financial statements referred to in Section 3.05(a) or
delivered pursuant to Section 5.04, the Intercreditor Agreement and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (v) such
assignee will independently and without reliance upon the Administrative Agent,
the Collateral Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (vi) such assignee agrees to be bound by the terms of the
Intercreditor Agreement; (vii) such assignee appoints and authorizes the
Administrative Agent and the


 


62

















 


Collateral
Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement as are delegated to the Administrative Agent and the
Collateral Agent, respectively, by the terms hereof, together with such powers
as are reasonably incidental thereto; and (viii) such assignee agrees that
it will perform in accordance with their terms all the obligations which
by the terms of this Agreement are required to be performed by it as a Lender.


 


(d)   The Administrative
Agent, acting for this purpose as an agent of the Borrower, shall maintain at
one of its offices in The City of New York a copy of each Assignment and
Acceptance 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 owing to, each Lender pursuant to the terms hereof from time to time (the
“Register”).
The entries in the Register shall be conclusive and the Borrower, the
Administrative Agent, the Collateral Agent and the Lenders may treat each
person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register shall be available for inspection by the Borrower
and the Collateral Agent, at any reasonable time and from time to time upon
reasonable prior notice.


 


(e)   Upon its receipt of,
and consent to, a duly completed Assignment and Acceptance executed by an
assigning Lender and an assignee, an Administrative Questionnaire completed in
respect of the assignee (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) above
and the written consent of the Administrative Agent and, if required, the
Borrower to such assignment and any applicable tax forms, the Administrative
Agent shall (i) accept such Assignment and Acceptance and (ii) record
the information contained therein in the Register. No assignment shall be
effective unless it has been recorded in the Register as provided in this
paragraph (e).


 


(f)   Each Lender may without
the consent of the Borrower or the Administrative Agent sell participations to
one or more banks or other persons in all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans owing to it); provided,
however, that (i) such
Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks or other
persons shall be entitled to the benefit of the cost protection provisions
contained in Sections 2.14, 2.16 and 2.20 to the same extent as if they
were Lenders (but, with respect to any particular participant, to no greater
extent than the Lender that sold the participation to such participant) and (iv) the
Borrower, the Administrative Agent and the Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement, and such Lender shall retain the sole
right to enforce the obligations of the Borrower relating to the Loans and to
approve any amendment, modification or waiver of any provision of this
Agreement (other than amendments, modifications or waivers decreasing the
amount of principal of or the rate at which interest is payable on the Loans in
which such participating bank or person has an


 


63

















 


interest,
extending any scheduled principal payment date or date fixed for the payment of
interest on the Loans in which such participating bank or person has an
interest, increasing or extending the Commitments in which such participating
bank or person has an interest or releasing any Guarantor (other than in
connection with the sale of such Guarantor in a transaction permitted by Section 6.05)
or all or substantially all of the Collateral).


 


(g)   Any Lender or
participant may, in connection with any assignment or participation or proposed
assignment or participation pursuant to this Section 9.04, disclose to the
assignee or participant or proposed assignee or participant any information
relating to the Borrower furnished to such Lender by or on behalf of the
Borrower; provided that, prior to
any such disclosure of information designated by the Borrower as confidential,
each such assignee or participant or proposed assignee or participant shall
execute an agreement whereby such assignee or participant shall agree (subject
to customary exceptions) to preserve the confidentiality of such confidential
information on terms no less restrictive than those applicable to the Lenders
pursuant to Section 9.16.


 


(h)   Any Lender may at
any time assign all or any portion of its rights under this Agreement to secure
extensions of credit to such Lender or in support of obligations owed by such
Lender; provided that no such
assignment shall release a Lender from any of its obligations hereunder or
substitute any such assignee for such Lender as a party hereto.


 


(i)   Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant
to a special purpose funding vehicle (an “SPC”), identified as such in writing from
time to time by the Granting Lender to the Administrative Agent and the
Borrower, the option to provide to the Borrower all or any part of any
Loan that such Granting Lender would otherwise be obligated to make to the
Borrower pursuant to this Agreement; provided
that (i) nothing herein shall constitute a commitment by any SPC to
make any Loan and (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the Granting
Lender shall be obligated to make such Loan pursuant to the terms hereof. The
making of a Loan by an SPC hereunder shall utilize the Commitment of the
Granting Lender to the same extent, and as if, such Loan were made by such
Granting Lender. Each party hereto hereby agrees that no SPC shall be liable
for any indemnity or similar payment obligation under this Agreement (all
liability for which shall remain with the Granting Lender). In furtherance of
the foregoing, each party hereto hereby agrees (which agreement shall survive
the termination of this Agreement) that, prior to the date that is one year and
one day after the payment in full of all outstanding commercial paper or other
senior indebtedness of any SPC, it will not institute against, or join any
other person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the United
States or any State thereof. In addition, notwithstanding anything to the
contrary contained in this Section 9.04, any SPC may (i) with
notice to, but without the prior written consent of, the Borrower and the
Administrative Agent and without paying any processing fee therefor, assign all
or a portion of its interests in any Loans to the Granting Lender or to any
financial institutions (consented to by the Borrower and Administrative Agent)
providing liquidity and/or credit support to or for the account of such SPC to support
the funding or maintenance of Loans and (ii) disclose on a confidential
basis any non-public information relating to its


 


64

















 


Loans
to any rating agency, commercial paper dealer or provider of any surety,
guarantee or credit or liquidity enhancement to such SPC.


 


(j)   The Borrower shall not
assign or delegate any of its rights or duties hereunder without the prior
written consent of the Administrative Agent and each Lender, and any attempted
assignment without such consent shall be null and void.


 


SECTION 9.05. Expenses;
Indemnity. (a)  The Borrower agrees to pay all reasonable
out-of-pocket expenses incurred by the Administrative Agent and the Collateral
Agent in connection with the syndication of the Credit Facility and the
preparation and administration of this Agreement and the other Loan Documents
or in connection with any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions hereby or thereby
contemplated shall be consummated) or incurred by the Administrative Agent, the
Collateral Agent or, during the existence of an Event of Default, any Lender in
connection with the enforcement or protection of its rights in connection with
this Agreement and the other Loan Documents or in connection with the Loans
made hereunder, including the fees, charges and disbursements of Cravath,
Swaine & Moore LLP, counsel for the Administrative Agent and the
Collateral Agent, and, in connection with any such enforcement or protection,
the reasonable fees, charges and disbursements of any other counsel for the
Administrative Agent, the Collateral Agent or any Lender.


 


(b)   The Borrower agrees to
indemnify the Administrative Agent, the Collateral Agent, each Lender and each
Related Party of any of the foregoing persons (each such person being called an
“Indemnitee”)
against, and to hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including reasonable counsel fees,
charges and disbursements, incurred by or asserted against any Indemnitee
arising out of, in any way connected with, or as a result of (i) the
execution or delivery of this Agreement or any other Loan Document or any
agreement or instrument contemplated thereby, the performance by the parties
thereto of their respective obligations thereunder or the consummation of the
Transactions and the other transactions contemplated thereby (including the
syndication of the Credit Facility), (ii) the use of the proceeds of the
Loans, (iii) any claim, litigation, investigation or proceeding relating
to any of the foregoing, whether or not any Indemnitee is a party thereto (and
regardless of whether such matter is initiated by a third party or by the
Borrower, any other Loan Party or any of their respective Affiliates), or (iv) any
actual or alleged presence or Release of Hazardous Materials on any 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 the Subsidiaries; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of
such Indemnitee or (y) result from a claim brought by the Borrower or any of
its Subsidiaries against an Indemnitee for breach in bad faith of such
Indemnitee’s obligations hereunder or under any other Loan Document, if the
Borrower or such Subsidiary has obtained a final and nonappealable judgment in
its favor on such claim as determined by a court of competent jurisdiction.


 


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(c)   To the extent that the
Borrower fails to pay any amount required to be paid by it to the
Administrative Agent or the Collateral Agent under paragraph (a) or (b) of
this Section 9.05, each Lender severally agrees to pay to the
Administrative Agent or the Collateral Agent, as the case may be, 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; 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 or the Collateral
Agent in its capacity as such. For purposes hereof, a Lender’s “pro rata share”
shall be determined based upon its outstanding Loans at the time.


 


(d)   To the extent
permitted by applicable law, the Borrower shall not assert, and hereby waives,
any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement
or any agreement or instrument contemplated hereby, the Transactions, any Loan
or the use of the proceeds thereof.


 


(e)   The provisions of this
Section 9.05 shall remain operative and in full force and effect
regardless of the expiration of the term of this Agreement, the consummation of
the transactions contemplated hereby, the repayment of any of the Loans, the
expiration of the Commitments, the invalidity or unenforceability of any term
or provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Administrative Agent, the Collateral Agent or any
Lender. All amounts due under this Section 9.05 shall be payable on
written demand therefor.


 


SECTION 9.06. Right
of Setoff. If an Event of Default shall have occurred and be
continuing under paragraph (b), (c), (g) or (h) of Article VII
or, with the consent of the Administrative Agent or the Required Lenders, upon
the occurrence of any other Event of Default, each Lender is hereby authorized
at any time and from time to time, except to the extent prohibited 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 indebtedness at any time owing
by such Lender 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 and other Loan Documents held by such Lender, irrespective of whether
or not such Lender shall have made any demand under this Agreement or such
other Loan Document and although such obligations may be unmatured. The
rights of each Lender under this Section 9.06 are in addition to other
rights and remedies (including other rights of setoff) which such Lender may have.


 


SECTION 9.07. Applicable
Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS
EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.


 


SECTION 9.08. Waivers;
Amendment. (a)  No failure or delay of the Administrative
Agent, the Collateral Agent or any Lender in exercising any power or


 


66

















 


right
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
Collateral Agent 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 this Agreement or any other Loan
Document or consent to any departure by the Borrower or any other Loan Party
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on the Borrower in any case shall entitle the Borrower to any
other or further notice or demand in similar or other circumstances.


 


(b)   Neither this Agreement
nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrower
and the Required Lenders; provided,
however, that no such agreement
shall (i) decrease the principal amount of, or extend the maturity
of, or any scheduled principal payment date or date for the payment of any
interest on, any Loan, or waive or excuse any such payment or any part thereof,
or decrease the rate of interest on any Loan, without the prior written consent
of each Lender directly adversely affected thereby, (ii) increase or
extend the Commitment of any Lender without the prior written consent of such Lender, (iii) amend
or modify the pro rata requirements of Section 2.17, the provisions of Section 9.04(j)
or the provisions of this Section or release any Guarantor (other than in
connection with the sale of such Guarantor in a transaction permitted by Section 6.05)
or all or substantially all of the Collateral, without the prior written
consent of each Lender, (iv) modify the protections afforded to an
SPC pursuant to the provisions of Section 9.04(i) without the written
consent of such SPC or (v) reduce the percentage contained in the
definition of the term “Required Lenders” without the prior written consent of
each Lender (it being understood that with the consent of the Required Lenders,
additional extensions of credit pursuant to this Agreement may be included
in the determination of the Required Lenders on substantially the same basis as
the Commitments on the date hereof); provided
further that no such agreement
shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent or the Collateral Agent hereunder or under any other Loan
Document without the prior written consent of the Administrative Agent or the
Collateral Agent.


 


SECTION 9.09. 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 9.09 shall be cumulated and the interest and
Charges payable


 


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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 9.10. Entire
Agreement. This Agreement, the Fee Letter and the other Loan
Documents constitute the entire contract between the parties relative to the
subject matter hereof. Any other previous agreement among the parties with
respect to the subject matter hereof is superseded by this Agreement and the
other Loan Documents. Nothing in this Agreement or in the other Loan Documents,
expressed or implied, is intended to confer upon any person (other than the
parties hereto and thereto, their respective successors and assigns permitted
hereunder and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent, the Collateral Agent and the Lenders) any
rights, remedies, obligations or liabilities under or by reason of this
Agreement or the other Loan Documents.


 


SECTION 9.11. 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 RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. 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 AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.


 


SECTION 9.12. Severability.
In the event any one or more of the provisions contained in this Agreement or
in any other Loan Document should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein and therein shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.


 


SECTION 9.13. Counterparts.
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, and
shall become effective as provided in Section 9.03. Delivery of an
executed signature


 


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page to
this Agreement by facsimile transmission shall be as effective as delivery of a
manually signed counterpart of this Agreement.


 


SECTION 9.14. 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
are not to affect the construction of, or to be taken into consideration in
interpreting, this Agreement.


 


SECTION 9.15. Jurisdiction;
Consent to Service of Process. (a)  Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the exclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or the other Loan Documents, 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 shall be heard and determined only 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
shall affect any right that the Administrative Agent, the Collateral Agent or
any Lender may otherwise have to bring any action or proceeding relating
to this Agreement or the other Loan Documents against the Borrower or its
properties in the courts of any jurisdiction.


 


(b)   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 the other Loan Documents in any New York
State or Federal court. 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.


 


(c)   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 will affect the right
of any party to this Agreement to serve process in any other manner permitted
by law.


 


SECTION 9.16. Confidentiality.
Each of the Administrative Agent, the Collateral Agent 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’
officers, directors, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to
the extent requested by any regulatory authority or quasi-regulatory authority
(such as the National Association of Insurance Commissioners), (c) to the
extent required by applicable laws or regulations or by any subpoena or similar
legal process, (d) in connection with the exercise of any remedies


 


69

















 


hereunder
or under the other Loan Documents or any suit, action or proceeding relating to
the enforcement of its rights hereunder or thereunder, (e) subject to an
agreement containing provisions substantially the same as those of this Section 9.16,
to (i) any actual or prospective assignee of or participant in any of its
rights or obligations under this Agreement and the other Loan Documents or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower or any Subsidiary or any of their
respective obligations, (f) with the consent of the Borrower or (g) to
the extent such Information becomes publicly available other than as a result
of a breach of this Section 9.16. For the purposes of this Section, “Information” shall mean all information
received from the Borrower and related to the Borrower or Parent or their
business, other than any such information that was available to the
Administrative Agent, the Collateral Agent or any Lender on a nonconfidential
basis prior to its disclosure by the Borrower. Any person required to maintain
the confidentiality of Information as provided in this Section 9.16 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 its own confidential information.


 


SECTION 9.17. USA
PATRIOT Act Notice. Each Lender and the Administrative Agent
(for itself and not on behalf of any Lender) hereby notifies the Borrower that
pursuant to the requirements of the USA PATRIOT Act, it is required to obtain,
verify and record information that identifies the Borrower, which information
includes the name and address of the Borrower and other information that will
allow such Lender or the Administrative Agent, as applicable, to identify the
Borrower in accordance with the USA PATRIOT Act.


 


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blank]


 


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


 


 


	
   

  	
  WEIGHTWATCHERS.COM, INC.,

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ DAVID P. KIRCHHOFF

  	
   

  
	
   

  	
   

  	
  Name: David P. Kirchhoff

  	
   

  
	
   

  	
   

  	
  Title:   CEO & President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CREDIT SUISSE, CAYMAN ISLANDS

  BRANCH, individually and as

  Administrative Agent and Collateral Agent,

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ ROBERT HETU

  	
   

  
	
   

  	
   

  	
  Name: Robert Hetu

  	
   

  
	
   

  	
   

  	
  Title:   Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ CASSANDRA DROOGAN

  	
   

  
	
   

  	
   

  	
  Name: Cassandra Droogan

  	
   

  
	
   

  	
   

  	
  Title:   Associate

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


 


71

















 


 


	
   

  	
  JPMORGAN CHASE BANK, N.A.,

  
	
   

  	
      As Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ LOUISE E. DUCHI

  	
   

  
	
   

  	
   

  	
  Name: Louise E. Duchi

  	
   

  
	
   

  	
   

  	
  Title:   Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


 


72

















 


 


	
   

  	
  COMMERZBANK AG, NEW YORK 

  
	
   

  	
  AND GRAND CAYMAN BRANCHES

  
	
   

  	
      As
  Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ ADAM T. STROM

  	
   

  
	
   

  	
   

  	
  Name: Adam T. Strom

  	
   

  
	
   

  	
   

  	
  Title:   Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ HENRY J. SPARK

  	
   

  
	
   

  	
   

  	
  Name: Henry J. Spark

  	
   

  
	
   

  	
   

  	
  Title:   Assistant Vice
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


 


73

















 


 


	
   

  	
  BAYERISHE
  HYPO-UND VEREINSBANK AG,

  
	
   

  	
  NEW
  YORK BRANCH

  
	
   

  	
      As Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ MARTHA G. MARTINEZ

  	
   

  
	
   

  	
   

  	
  Name: Martha G. Martinez

  	
   

  
	
   

  	
   

  	
  Title:   Associate
  Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ JENNIFER LARROW

  	
   

  
	
   

  	
   

  	
  Name: Jennifer Larrow

  	
   

  
	
   

  	
   

  	
  Title:   Associate
  Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


 


74

















 


 


	
   

  	
  SOVEREIGN
  BANK

  
	
   

  	
      As Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ ANTONIA BADOLATO

  	
   

  
	
   

  	
   

  	
  Name: Antonia Badolato

  	
   

  
	
   

  	
   

  	
  Title:   Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


 


75

















 


 


	
   

  	
  MIZUHO CORPORATE BANK, LTD.

  
	
   

  	
      As Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ JAMES FAYEN

  	
   

  
	
   

  	
   

  	
  Name: James Fayen

  	
   

  
	
   

  	
   

  	
  Title:   Deputy General
  Manager

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


 


76