Exhibit 10.1  


CONFORMED COPY  




$125,000,000  


CREDIT AGREEMENT  


among  


SEROLOGICALS CORPORATION,

as Borrower,  


The Several Lenders from Time to Time Parties Hereto,  


LASALLE BANK NATIONAL ASSOCIATION,

as Documentation Agent,  


BANK OF AMERICA, N.A.,

as Syndication Agent,  


and  


JPMORGAN CHASE BANK,

as Administrative Agent  


Dated as of October 14, 2004  




JPMORGAN SECURITIES INC.,

as Lead Arranger and Bookrunner  







 TABLE OF CONTENTS  



	 
	 	 
	 	Page

	SECTION 1.	 	DEFINITIONS	 	1
	 	1.1	 	Defined Terms	 	1
	 	1.2	 	Other Definitional Provisions	 	18
	SECTION 2.	 	AMOUNT AND TERMS OF COMMITMENTS	 	19
	 	2.1	 	Term Commitments	 	19
	 	2.2	 	Procedure for Term Loan Borrowing	 	19
	 	2.3	 	Repayment of Term Loans	 	20
	 	2.4	 	Revolving Commitments	 	20
	 	2.5	 	Procedure for Revolving Loan Borrowing	 	20
	 	2.6	 	Swingline Commitment	 	21
	 	2.7	 	Procedure for Swingline Borrowing; Refunding of Swingline Loans	 	21
	 	2.8	 	Commitment Fees, etc.	 	23
	 	2.9	 	Termination or Reduction of Revolving Commitments	 	23
	 	2.10	 	Optional Prepayments	 	23
	 	2.11	 	Mandatory Prepayments and Commitment Reductions	 	23
	 	2.12	 	Conversion and Continuation Options	 	24
	 	2.13	 	Limitations on Eurodollar Tranches	 	24
	 	2.14	 	Interest Rates and Payment Dates	 	25
	 	2.15	 	Computation of Interest and Fees	 	25
	 	2.16	 	Inability to Determine Interest Rate	 	25
	 	2.17	 	Pro Rata Treatment and Payments	 	26
	 	2.18	 	Requirements of Law	 	27
	 	2.19	 	Taxes	 	28
	 	2.20	 	Indemnity	 	30
	 	2.21	 	Change of Lending Office	 	30
	 	2.22	 	Replacement of Lenders	 	30
	SECTION 3.	 	LETTERS OF CREDIT	 	31
	 	3.1	 	L/C Commitment	 	31
	 	3.2	 	Procedure for Issuance of Letter of Credit	 	31
	 	3.3	 	Fees and Other Charges	 	31
	 	3.4	 	L/C Participations	 	31
	 	3.5	 	Reimbursement Obligation of the Borrower	 	32
	 	3.6	 	Obligations Absolute	 	33
	 	3.7	 	Letter of Credit Payments	 	33
	 	3.8	 	Applications	 	33
	SECTION 4.	 	REPRESENTATIONS AND WARRANTIES	 	34
	 	4.1	 	Financial Condition	 	34
	 	4.2	 	No Change	 	34
	 	4.3	 	Existence; Compliance with Law	 	34
	 	4.4	 	Power; Authorization; Enforceable Obligations	 	35
	 	4.5	 	No Legal Bar	 	35
	 	4.6	 	Litigation	 	35
	 	4.7	 	No Default	 	35
	 	4.8	 	Ownership of Property; Liens	 	35
	 	4.9	 	Intellectual Property	 	35
	 	4.10	 	Taxes	 	36
	 	4.11	 	Federal Regulations	 	36
	 	4.12	 	Labor Matters	 	36
	 	4.13	 	ERISA	 	36
	 	4.14	 	Investment Company Act; Other Regulations	 	37
	 	4.15	 	Subsidiaries	 	37
	 	 	 	 	 









	 	4.16	 	Use of Proceeds	 	37
	 	4.17	 	Environmental Matters	 	37
	 	4.18	 	Accuracy of Information, etc	 	38
	 	4.19	 	Security Documents	 	38
	 	4.20	 	Solvency	 	38
	 	4.21	 	Senior Indebtedness	 	38
	 	4.22	 	Certain Documents	 	38
	SECTION 5.	 	CONDITIONS PRECEDENT	 	39
	 	5.1	 	Conditions to Initial Extension of Credit	 	39
	 	5.2	 	Conditions to Each Extension of Credit	 	41
	SECTION 6.	 	AFFIRMATIVE COVENANTS	 	41
	 	6.1	 	Financial Statements	 	41
	 	6.2	 	Certificates; Other Information	 	42
	 	6.3	 	Payment of Obligations	 	43
	 	6.4	 	Maintenance of Existence; Compliance	 	43
	 	6.5	 	Maintenance of Property; Insurance	 	43
	 	6.6	 	Inspection of Property; Books and Records; Discussions	 	43
	 	6.7	 	Notices	 	43
	 	6.8	 	Environmental Laws	 	44
	 	6.9	 	Additional Collateral, etc	 	44
	 	6.10	 	Further Assurances	 	46
	 	6.11	 	OFAC and BSA Compliance	 	46
	SECTION 7.	 	NEGATIVE COVENANTS	 	46
	 	7.1	 	Financial Condition Covenants.	 	46
	 	7.2	 	Indebtedness	 	47
	 	7.3	 	Liens	 	48
	 	7.4	 	Fundamental Changes	 	49
	 	7.5	 	Disposition of Property	 	49
	 	7.6	 	Restricted Payments	 	50
	 	7.7	 	Investments	 	50
	 	7.8	 	Optional Payments and Modifications of Certain Debt Instruments	 	51
	 	7.9	 	Transactions with Affiliates	 	51
	 	7.10	 	Sales and Leasebacks	 	51
	 	7.11	 	Swap Agreements	 	51
	 	7.12	 	Changes in Fiscal Periods	 	51
	 	7.13	 	Negative Pledge Clauses	 	51
	 	7.14	 	Clauses Restricting Subsidiary Distributions	 	52
	 	7.15	 	Lines of Business	 	52
	 	7.16	 	Amendments to Acquisition Documents	 	52
	SECTION 8.	 	EVENTS OF DEFAULT	 	52
	SECTION 9.	 	THE AGENTS	 	55
	 	9.1	 	Appointment	 	55
	 	9.2	 	Delegation of Duties	 	55
	 	9.3	 	Exculpatory Provisions	 	55
	 	9.4	 	Reliance by Administrative Agent	 	55
	 	9.5	 	Notice of Default	 	56
	 	9.6	 	Non-Reliance on Agents and Other Lenders	 	56
	 	9.7	 	Indemnification	 	56
	 	9.8	 	Agent in Its Individual Capacity	 	57
	 	9.9	 	Successor Administrative Agent	 	57
	 	9.10	 	Documentation Agent and Syndication Agent	 	57
	SECTION 10.	 	MISCELLANEOUS	 	58
	 	10.1	 	Amendments and Waivers	 	58
	 	 	 	 	 









	 	10.2	 	Notices	 	59
	 	10.3	 	No Waiver; Cumulative Remedies	 	59
	 	10.4	 	Survival of Representations and Warranties	 	60
	 	10.5	 	Payment of Expenses and Taxes	 	60
	 	10.6	 	Successors and Assigns; Participations and Assignments	 	61
	 	10.7	 	Adjustments; Set-off	 	63
	 	10.8	 	Counterparts	 	64
	 	10.9	 	Severability	 	64
	 	10.10	 	Integration	 	64
	 	10.11	 	GOVERNING LAW	 	64
	 	10.12	 	Submission To Jurisdiction; Waivers	 	64
	 	10.13	 	Acknowledgements	 	65
	 	10.14	 	Releases of Guarantees and Liens	 	65
	 	10.15	 	Confidentiality	 	65
	 	10.16	 	WAIVERS OF JURY TRIAL	 	66
	 	10.17	 	Delivery of Addenda	 	66
	 	10.18	 	Designated Senior Indebtedness	 	66
	 	10.19	 	USA PATRIOT Act Notice	 	66





SCHEDULES:  



	1.1(a)	 	Lenders
	1.1(b)	 	Existing Letters of Credit
	4.4	 	Consents, Authorizations, Filings and Notices
	4.15	 	Subsidiaries
	4.19	 	UCC Filing Jurisdictions
	7.2(d)	 	Existing Indebtedness
	7.3(f)	 	Existing Liens





EXHIBITS:  



	A	 	Form of Guarantee and Collateral Agreement
	B	 	Form of Compliance Certificate
	C	 	Form of Closing Certificate
	D	 	Form of Assignment and Assumption
	E-1	 	Form of Legal Opinion of King & Spalding LLP
	E-2	 	Form of Legal Opinion of Philip A. Theodore
	F	 	Form of Exemption Certificate
	G	 	Form of Addendum












        CREDIT AGREEMENT (this "Agreement"), dated as of October 14, 2004, among SEROLOGICALS CORPORATION, a Delaware corporation (the
"Borrower"), the several banks and other financial institutions or entities from time to time parties to this Agreement (the
"Lenders"), LASALLE BANK NATIONAL ASSOCIATION, as documentation agent (in such capacity, the "Documentation
Agent"), BANK OF AMERICA, N.A., as syndication agent (in such capacity, the "Syndication Agent"), and JPMORGAN CHASE BANK, as
administrative agent. 


        The
parties hereto hereby agree as follows: 


SECTION 1. DEFINITIONS  


        1.1    Defined Terms.    As used in this Agreement, the terms listed in this Section 1.1 shall have the
respective meanings set forth in this Section 1.1. 


        "ABR": for any day, a rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) 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%. For purposes hereof: "Prime
Rate" shall mean the rate of interest per annum publicly announced from time to time by JPMorgan Chase Bank as its prime rate in effect at its principal office in New York City
(the Prime Rate not being intended to be the lowest rate of interest charged by JPMorgan Chase Bank in connection with extensions of credit to debtors). Any change in the ABR due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective as of the opening of business on the effective day of such change in the Prime Rate or the Federal Funds Effective Rate, respectively. 


        "ABR Loans": Loans the rate of interest applicable to which is based upon the ABR. 


        "Acquisition": as defined in Section 5.1. 


        "Acquisition Documentation": collectively, the Merger Agreement and all schedules, exhibits and annexes thereto and all side letters and
agreements affecting the terms thereof or entered into in connection therewith. 



        "Addendum": an instrument, substantially in the form of Exhibit G, by which a Lender becomes a party to this Agreement as of the
Closing Date. 


        "Adjustment Date": as defined in the Pricing Grid. 


        "Administrative Agent": JPMorgan Chase Bank, together with its affiliates, as the arranger of the Commitments and as the administrative
agent for the Lenders under this Agreement and the other Loan Documents, together with any of its successors. 



        "Affiliate": as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person. For purposes of this definition, "control" of a Person means the power, directly or indirectly, either to (a) vote 10% or more of the securities having ordinary
voting power for the election of directors (or persons performing similar functions) of such Person or (b) direct or cause the direction of the management and policies of such Person, whether
by contract or otherwise. 


        "Agents": the collective reference to the Syndication Agent, the Documentation Agent and the Administrative Agent. 



        "Aggregate Exposure": with respect to any Lender at any time, an amount equal to (a) until the Closing Date, the aggregate amount
of such Lender's Commitments at such time and (b) thereafter, the sum of (i) the aggregate then unpaid principal amount of such Lender's Term Loans and (ii) the amount of such
Lender's Revolving Commitment then in effect or, if the Revolving Commitments have been terminated, the amount of such Lender's Revolving Extensions of Credit then outstanding. 


        "Aggregate Exposure Percentage": with respect to any Lender at any time, the ratio (expressed as a percentage) of such Lender's Aggregate
Exposure at such time to the Aggregate Exposure of all Lenders at such time. 







 



        "Agreement": as defined in the preamble hereto. 


        "Applicable Margin": for each Type of Loan, the rate per annum set forth under the relevant column heading below: 



	 
	 	ABR Loans
	 	Eurodollar Loans
	 
	Revolving Loans and Swingline Loans	 	1.00	%	2.00	%
	Term Loans	 	1.50	%	2.50	%






;
provided, that on and after the first Adjustment Date occurring after the Closing Date, the Applicable Margin will be determined pursuant to the
Pricing Grid. 


        "Application": an application, in such form as the relevant Issuing Lender may specify from time to time, requesting such Issuing Lender
to open a Letter of Credit. 


        "Approved Fund": as defined in Section 10.6(b). 



        "Asset Sale": any Disposition of property or series of related Dispositions of property (excluding any such Disposition permitted by
clause (a), (b), (c) or (d) of Section 7.5) that yields gross proceeds to any Group Member (valued at the initial principal amount thereof in the case of
non-cash proceeds consisting of notes or other debt securities and valued at fair market value in the case of other non-cash proceeds) in excess of $10,000,000. 


        "Assignee": as defined in Section 10.6(b). 


        "Assignment and Assumption": an Assignment and Assumption, substantially in the form of Exhibit D. 


        "Available Revolving Commitment": as to any Revolving Lender at any time, an amount equal to the excess, if any, of (a) such
Lender's Revolving Commitment then in effect over (b) such Lender's Revolving Extensions of Credit then outstanding;  provided, that in calculating any
Lender's Revolving Extensions of Credit for the purpose of determining such Lender's Available Revolving Commitment
pursuant to Section 2.8(a), the aggregate principal amount of Swingline Loans then outstanding shall be deemed to be zero. 


        "Benefited Lender": as defined in Section 10.7(a). 


        "Board": the Board of Governors of the Federal Reserve System of the United States (or any successor). 


        "Borrower": as defined in the preamble hereto. 



        "Borrowing Date": any Business Day specified by the Borrower as a date on which the Borrower requests the relevant Lenders to make Loans
hereunder. 


        "Business": as defined in Section 4.17(b). 


        "Business Day": a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by
law to close, provided, that with respect to notices and determinations in connection with, and payments of principal and interest on, Eurodollar Loans,
such day is also a day for trading by and between banks in Dollar deposits in the interbank eurodollar market. 


        "Capital Expenditures": for any period, with respect to any Person, the aggregate of all expenditures by such Person and its Subsidiaries
(other than any expenditures made with proceeds of any Involuntary Disposition to the extent such expenditures are used to purchase Property that is the same as or similar to the Property subject to
such Involuntary Disposition) for the acquisition or leasing (pursuant to a capital lease) of fixed or capital assets or additions to equipment (including 


2







 



replacements,
capitalized repairs and improvements during such period) that are required to be capitalized under GAAP on a consolidated balance sheet of such Person and its Subsidiaries. 


        "Capital Lease Obligations": as to any Person, 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, for the purposes of this Agreement, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP. 


        "Capital Stock": any and all shares, interests, participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing. 



        "Cash Equivalents": (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States Government or
issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition; (b) certificates of deposit, time
deposits, eurodollar time deposits or overnight bank deposits having maturities of 12 months or less from the date of acquisition issued by any Lender or by any commercial bank organized under
the laws of the United States or any state thereof having combined capital and surplus of not less than $500,000,000, or any bank whose short-term commercial paper rating from S&P is at
least A-2 or the equivalent thereof or from Moody's is at least P-2 or the equivalent thereof (any such bank being an "Approved
Bank"); (c) commercial paper and variable or fixed rate notes issued by any Approved Bank (or by the parent company thereof) or any commercial paper or variable or fixed
rate notes issued by, or guaranteed by, any domestic corporation rated A-2 (or the equivalent thereof) or better by S&P or P-2 (or the equivalent thereof) or better by Moody's)
and maturing within 270 days from the date of acquisition; (d) repurchase obligations of any Lender, Approved Bank, or recognized securities dealer having capital and surplus in excess
of $500,000,000, having a term of not more than 90 days, with respect to securities issued or fully guaranteed or insured by the United States government; (e) securities with maturities
of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such
state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may
be) are rated at least A by S&P or A by Moody's; (f) securities with maturities of 12 months or less from the date of acquisition backed by standby letters of credit issued by any Lender
or any Approved Bank; (g) money market mutual or similar funds that invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition; or
(h) money market funds
that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as amended, (ii) are rated AAA by S&P and Aaa by Moody's and
(iii) have portfolio assets of at least $500,000,000. 


        "CDN Dollar": freely transferable lawful currency of Canada (expressed in dollars). 


        "Closing Date": the date on which the conditions precedent set forth in Section 5.1 shall have been satisfied, which date is
October 14, 2004. 


        "Code": the Internal Revenue Code of 1986, as amended from time to time. 



        "Collateral": all property of the Loan Parties, now owned or hereafter acquired, upon which a Lien is purported to be created by any
Security Document. 


        "Commitment": as to any Lender, the sum of the Term Commitment and the Revolving Commitment of such Lender. 


3







 



        "Commitment Fee Rate": 1/2 of 1% per annum; provided, that on and after the
first Adjustment Date occurring after the Closing Date, the Commitment Fee Rate will be determined pursuant to the Pricing Grid. 


        "Commonly Controlled Entity": an entity, whether or not incorporated, that is under common control with the Borrower within the meaning of
Section 4001 of ERISA or is part of a group that includes the Borrower and that is treated as a single employer under Section 414 of the Code. 



        "Compliance Certificate": a certificate duly executed by a Responsible Officer substantially in the form of Exhibit B. 


        "Conduit Lender": any special purpose corporation organized and administered by any Lender for the purpose of making Loans otherwise
required to be made by such Lender and designated by such Lender in a written instrument; provided, that the designation by any Lender of a Conduit
Lender shall
not relieve the designating Lender of any of its obligations to fund a Loan under this Agreement if, for any reason, its Conduit Lender fails to fund any such Loan, and the designating Lender (and not
the Conduit Lender) shall have the sole right and responsibility to deliver all consents and waivers required or requested under this Agreement with respect to its Conduit Lender, and  provided,
further, that no Conduit Lender shall (a) be entitled to receive any greater amount
pursuant to Section 2.18, 2.19, 2.20 or 10.5 than the designating Lender would have been entitled to receive in respect of the extensions of credit made by such Conduit Lender or (b) be
deemed to have any Commitment. 


        "Confidential Information Memorandum": the Confidential Information Memorandum dated September 2004 and furnished to certain
Lenders. 


        "Consolidated Current Assets": at any date, all amounts (other than cash and Cash Equivalents) that would, in conformity with GAAP, be set
forth opposite the caption "total current assets" (or any like caption) on a consolidated balance sheet of the Borrower and its Subsidiaries at such date. 


        "Consolidated Current Liabilities": at any date, all amounts that would, in conformity with GAAP, be set forth opposite the caption "total
current liabilities" (or any like caption) on a consolidated balance sheet of the Borrower and its Subsidiaries at such date, but excluding (a) the current portion of any Funded Debt of the
Borrower and its Subsidiaries and (b) without duplication of clause (a) above, all Indebtedness consisting of Revolving Loans, Swingline Loans or L/C Obligations to the extent otherwise
included therein. 


        "Consolidated EBITDA": for any period, Consolidated Net Income for such period plus,
without duplication and to the extent reflected as a charge in the statement of such Consolidated Net Income for such period, the sum of (a) income tax, franchise tax and net worth tax expense,
(b) interest expense (including, without limitation, interest expense with respect to Capital Lease Obligations and Specified Swap Agreements), amortization or writeoff of debt discount and
debt issuance costs and commissions, discounts and other fees and charges (including all commissions, discounts and other fees and charges owed with respect to Letters of Credit and bankers'
acceptance financing and net costs under Swap Agreements in respect of interest rates to the extent such net costs are allocable to such period in accordance with GAAP) associated with Indebtedness
(including the Loans and the Letters of Credit), (c) depreciation and amortization expense, (d) amortization of intangibles (including, but not limited to, goodwill) and organization
costs, (e) any extraordinary, unusual or non-recurring non-cash expenses or losses (including, whether or not otherwise includable as a separate item in the statement of
such Consolidated Net Income for such period, non-cash losses on sales of assets outside of the ordinary course of business) and non- recurring losses relating to early
extinguishment of Indebtedness (f) fees and expenses in respect of the Acquisition and the financing thereof in an amount not exceeding $5,000,000 in the aggregate for all periods,
(g) non-cash expenses during such period resulting from the grant of Capital Stock interests to management and employees of the Borrower or any of its Subsidiaries, (h) all
other non-cash expenses or losses of the Borrower or any of its 


4







 



Subsidiaries
for such period (excluding any such charge that constitutes an accrual of or a reserve for cash charges for any future period), (i) nonrecurring charges and expenses related to the
closing of certain of the Borrower's and its Subsidiaries' facilities after the Closing Date not to exceed $5,000,000 in the aggregate and (j) nonrecurring integration costs and expenses
related to the Acquisition, and minus, (a) to the extent included in the statement of such Consolidated Net Income for such period, the sum of
(i) interest income, (ii) any extraordinary, unusual or non-recurring income or gains (including, whether or not otherwise includable as a separate item in the statement of
such Consolidated Net Income for such period, gains on the sales of assets outside of the ordinary course of business), (iii) income tax credits (to the extent not netted from income tax
expense) and (iv) any other non-cash income and (b) any cash payments made during such period in respect of items described in clause (e) above subsequent to the
fiscal quarter in which the relevant non-cash expenses or losses were reflected as a charge in the statement of Consolidated Net Income, all as determined on a consolidated basis. For the
purposes of calculating Consolidated EBITDA for any period of four consecutive fiscal quarters (each, a "Reference Period") pursuant to any determination of the Consolidated Leverage Ratio,
(i) if at any time during such Reference Period the Borrower or any Subsidiary shall have made any Material Disposition, the Consolidated EBITDA for such Reference Period shall be reduced by an
amount equal to the Consolidated EBITDA (if positive) attributable to the property that is the subject of such Material Disposition for such Reference Period or increased by an amount equal to the
Consolidated EBITDA (if negative) attributable thereto for such Reference Period and (ii) if during such Reference Period the Borrower or any Subsidiary shall have made a Material Acquisition,
Consolidated EBITDA for such Reference Period shall be calculated after giving pro forma effect thereto as if such Material Acquisition occurred on the
first day of such Reference Period. As used in this definition, "Material Acquisition" means any acquisition of property or series of related acquisitions of property that (a) constitutes
assets comprising all or substantially all of an operating unit of a business or constitutes all or substantially all of the common stock of a Person and (b) involves the payment of
consideration by the Borrower and its Subsidiaries in excess of $5,000,000; and "Material Disposition" means any Disposition of property or series of related Dispositions of property that yields gross
proceeds to the Borrower or any of its Subsidiaries in excess of $5,000,000. Such calculations may include operating and other expense reductions and other adjustments for such period resulting from
any Material Acquisition that is being given
pro-forma effect to the extent that such operating and other expense reductions and other adjustments would be permitted pursuant to Article XI of Regulation S-X
under the Securities Act of 1933. 


        "Consolidated Fixed Charge Coverage Ratio": for any period, the ratio of (a) Consolidated EBITDA for such period less the aggregate
amount actually paid by the Borrower and its Subsidiaries during such period on account of Capital Expenditures (excluding the principal amount of Indebtedness (other than any Loans) incurred in
connection with such expenditures) to (b) Consolidated Fixed Charges for such period. 


        "Consolidated Fixed Charges": for any period, the sum (without duplication) of (a) Consolidated Interest Expense for such period
and (b) scheduled payments made during such period on account of principal of Indebtedness of the Borrower or any of its Subsidiaries (including scheduled principal payments in respect of the
Term Loans). 


        "Consolidated Interest Expense": for any period, total cash interest expense (including that attributable to Capital Lease Obligations) of
the Borrower and its Subsidiaries for such period with respect to all outstanding Indebtedness of the Borrower and its Subsidiaries (including all commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers' acceptance financing and net costs under Swap Agreements in respect of interest rates to the extent such net costs are allocable to such period in
accordance with GAAP). 


        "Consolidated Leverage Ratio": as at the last day of any period, the ratio of (a) Consolidated Total Debt on such day to
(b) Consolidated EBITDA for such period. 


5







 



        "Consolidated Liquidity": at any time, the sum of (a) the aggregate amount of unrestricted cash and Cash Equivalents of the
Borrower and its Subsidiaries at such time plus (b) the aggregate amount of Excess Revolving Credit Availability at such time. 


        "Consolidated Net Income": for any period, the consolidated net income (or loss) of the Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income (or deficit) of any Person accrued prior to the
date it becomes a Subsidiary of the Borrower or is merged into or consolidated with the Borrower or any of its Subsidiaries, (b) the income (or deficit) of any Person (other than a Subsidiary
of the Borrower) in which the Borrower or any of its Subsidiaries has an ownership interest, except to the extent that any such income is actually received by the Borrower or such Subsidiary in the
form of dividends or similar distributions and (c) the undistributed earnings of any Subsidiary of the Borrower to the extent that the declaration or payment
of dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of any Contractual Obligation (other than under any Loan Document) or Requirement of Law applicable
to such Subsidiary. 


        "Consolidated Senior Debt": all Consolidated Total Debt other than (a) the Convertible Senior Subordinated Debentures and
(b) any other subordinated Indebtedness. 


        "Consolidated Senior Debt Ratio": as of the last day of any period of four consecutive fiscal quarters, the ratio of
(a) Consolidated Senior Debt on such day to (b) Consolidated EBITDA for such period. 


        "Consolidated Total Debt": at any date, the aggregate principal amount of all Indebtedness of the Borrower and its Subsidiaries at such
date, determined on a consolidated basis in accordance with GAAP. 



        "Consolidated Working Capital": at any date, the excess of Consolidated Current Assets on such date  overConsolidated Current Liabilities on such date. 


        "Continuing Directors": the directors of the Borrower on the Closing Date, after giving effect to the Acquisition and the other
transactions contemplated hereby, and each other director, if, in each case, such other director's nomination for election to the board of directors of the Borrower is recommended by at least 51% of
the then Continuing Directors. 


        "Contractual Obligation": as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its property is bound. 


        "Convertible Senior Subordinated Debentures": the 4.75% Convertible Senior Subordinated Debentures of the Borrower due 2033 issued
pursuant to the Indenture. 



        "Default": any of the events specified in Section 8, whether or not any requirement for the giving of notice, the lapse of time, or
both, has been satisfied. 


        "Disposition": with respect to any property, any sale, lease, sale and leaseback, assignment, conveyance, transfer or other disposition
thereof. The terms "Dispose" and "Disposed of" shall have correlative meanings. 


        "Documentation Agent": as defined in the preamble hereto. 



        "Domestic Subsidiary": any Subsidiary of the Borrower organized under the laws of any jurisdiction within the United States. 


        "ECF Percentage": 50%; provided, that the ECF Percentage with respect to any fiscal year
of the Borrower shall be reduced to 0% if the Consolidated Senior Debt Ratio as of the last day of such fiscal year is less than 2.00:1.00. 


6







 



        "Environmental Laws": any and all foreign, Federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees, requirements of any Governmental Authority or other Requirements of Law (including common law) regulating, relating to or imposing liability or standards of conduct concerning
protection of human health or the environment, as now or may at any time hereafter be in effect. 


        "ERISA": the Employee Retirement Income Security Act of 1974, as amended from time to time. 



        "Eurocurrency Reserve Requirements": for any day as applied to a Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such day (including basic, supplemental, marginal and emergency reserves) under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto dealing with reserve requirements prescribed for eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board) maintained by a member bank of the Federal Reserve System. 


        "Eurodollar Base Rate": with respect to each day during each Interest Period pertaining to a Eurodollar Loan, the rate per annum
determined on the basis of the rate for deposits in US Dollars for a period equal to such Interest Period commencing on the first day of such Interest Period appearing on Page 3750 of the Telerate
screen as of 11:00 A.M., London time, two Business Days prior to the beginning of such Interest Period. In the event that such rate does not appear on Page 3750 of the Telerate screen (or
otherwise on such screen), the "Eurodollar Base Rate" shall be determined by reference to such other comparable publicly available service for
displaying eurodollar rates as may be selected by the Administrative Agent or, in the absence of such availability, by reference to the rate at which the Administrative Agent is offered Dollar
deposits at or about 11:00 A.M., New York City time, two Business Days prior to the beginning of such Interest Period in the interbank eurodollar market where
its eurodollar and foreign currency and exchange operations are then being conducted for delivery on the first day of such Interest Period for the number of days comprised therein. 


        "Eurodollar Loans": Loans the rate of interest applicable to which is based upon the Eurodollar Rate. 


        "Eurodollar Rate": with respect to each day during each Interest Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the nearest 1/100th of 1%): 



	Eurodollar Base Rate
 1.00 - Eurocurrency Reserve Requirements






        "Eurodollar Tranche": the collective reference to Eurodollar Loans under a particular Facility the then current Interest Periods with
respect to all of which begin on the same date and end on the same later date (whether or not such Loans shall originally have been made on the same day). 


        "Event of Default": any of the events specified in Section 8, provided that any
requirement for the giving of notice, the lapse of time, or both, has been satisfied. 


        "Excess Cash Flow": for any fiscal year of the Borrower, the excess, if any, of (a) the sum, without duplication, of
(i) Consolidated Net Income for such fiscal year (adjusted to exclude any gains or losses attributable to any Asset Sale or Recovery Event resulting in any mandatory prepayment of the Term
Loans, provided that the excluded amount of any such gain shall in no event exceed the amount of the prepayment that results from the Asset Sale or
Recovery Event to which such gain is attributable), (ii) the amount of all non-cash charges (including depreciation and amortization) and losses deducted in arriving at such
Consolidated Net Income, (iii) decreases in Consolidated Working Capital for such fiscal year, (iv) the net increase during such fiscal year (if any) in deferred tax accounts of the 


7







 



Borrower,
and (v) the aggregate net amount of non-cash loss on the Disposition of property by the Borrower and its Subsidiaries during such fiscal year (other than sales of
inventory in the ordinary course of business), to the extent deducted in arriving at such Consolidated Net Income over (b) the sum, without
duplication, of (i) the amount of all non-cash credits and other non-cash income included in arriving at such Consolidated Net Income, (ii) the aggregate amount
actually paid by the Borrower and its Subsidiaries in cash during such fiscal year on account of Capital Expenditures (excluding the principal amount of Indebtedness incurred in connection with such
expenditures and any such expenditures financed with the proceeds of any Reinvestment Deferred Amount), (iii) the aggregate amount of all prepayments of Revolving Loans and Swingline Loans
during such fiscal year to the extent accompanying permanent optional reductions of the Revolving Commitments and all optional prepayments of the Term Loans during such fiscal year, (iv) the
aggregate amount of all regularly scheduled principal payments and mandatory prepayments of Funded Debt (including the Term Loans) of the Borrower and its Subsidiaries made during such fiscal year
(other than in respect of any revolving credit facility to the extent there is not an equivalent permanent reduction in commitments thereunder), (v) increases in Consolidated Working Capital
for such fiscal year, (vi) the aggregate net amount of non-cash gain on the Disposition of property by the Borrower and its Subsidiaries during such fiscal year (other than sales of
inventory in the ordinary course of business), to the extent included in arriving at such Consolidated Net Income, (vii) the aggregate amount actually paid by the Borrower and its Subsidiaries
in cash during such fiscal year in connection with a Permitted Business Acquisition and other Investments permitted by Section 7.7(f), 7.7(h), 7.7(j) or 7.7(m) to the extent not funded with the
proceeds of Indebtedness incurred by the Borrower or its Subsidiaries or Capital Stock issued by the Borrower or its Subsidiaries, (ix) the net decrease during such fiscal year (if any) in
deferred tax accounts of the Borrower, and (x) the non-cash impact of foreign currency transactions and other adjustments to the equity account, including adjustments to the
carrying value of derivative and financial instruments and to pension liabilities, in each case to the extent such items would otherwise result in any Excess Cash Flow. 


        "Excess Cash Flow Application Date": as defined in Section 2.11(d). 


        "Excess Revolving Credit Availability": at any time, the amount equal to (a) the Total Revolving Commitments at such time  minus (b) the Total Revolving
Extensions of Credit at such time. 



        "Excluded Domestic Subsidiary": any Domestic Subsidiary (other than any Wholly Owned Subsidiary of the Borrower having assets with a book
value greater than $1,000,000) designated as such by the Borrower in a written notice delivered to the Administrative Agent; provided that at no time
shall the amount of all Investments made at or prior to such time by the Borrower or any Subsidiary Guarantor in Excluded Domestic Subsidiaries exceed $5,000,000 in the aggregate; and  provided,
further, that any Excluded Domestic Subsidiary shall cease to be an Excluded Domestic
Subsidiary upon receipt by the Administrative Agent of a written notice from the Borrower revoking such designation. 



        "Excluded Foreign Subsidiary": any Foreign Subsidiary in respect of which the pledge of all of the Capital Stock of such Subsidiary as
Collateral would, in the good faith judgment of the Borrower, result in adverse tax consequences to the Borrower. 


        "Existing Borrower Credit Agreement": the Credit Agreement, dated as of August 29, 2003, among the Borrower, Bank of America, N.A.,
as administrative agent, and the other parties thereto. 


        "Existing Credit Agreements": the collective reference to the Existing Borrower Credit Agreement and the Existing Target Credit Agreement. 



        "Existing Target Credit Agreement": the Credit Agreement, dated as of June 10, 2004, by and between Upstate USA, Inc.,
Upstate Group, Inc., and Bank of America, N.A. 


        "Existing Issuing Lender": Bank of America, N.A. 


8









   
        "Existing Letters of Credit": the letters of credit described on Schedule 1.1(b). 


        "Facility": each of (a) the Term Commitments and the Term Loans made thereunder (the "Term
Facility") and (b) the Revolving Commitments and the extensions of credit made thereunder (the "Revolving Facility"). 


        "Federal Funds Effective Rate": 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 of such transactions received by JPMorgan Chase Bank from three federal funds brokers of recognized standing selected by it. 



        "Fee Payment Date": (a) the third Business Day following the last day of each March, June, September and December and
(b) the last day of the Revolving Commitment Period. 


        "Foreign Subsidiary": any Subsidiary of the Borrower that is not a Domestic Subsidiary. 


        "Fundamental Change": a "Fundamental Change" (or any other defined term having a similar purpose) as defined in the Indenture. 



        "Funded Debt": as to any Person, all Indebtedness of such Person that matures more than one year from the date of its creation or matures
within one year from such date but is renewable or extendible, at the option of such Person, to a date more than one year from such date or arises under a revolving credit or similar agreement that
obligates the lender or lenders to extend credit during a period of more than one year from such date, including all current maturities and current sinking fund payments in respect of such
Indebtedness whether or not required to be paid within one year from the date of its creation and, in the case of the Borrower, Indebtedness in respect of the Loans. 



        "Funding Office": the office of the Administrative Agent specified in Section 10.2 or such other office as may be specified from
time to time by the Administrative Agent as its funding office by written notice to the Borrower and the Lenders. 


        "GAAP": generally accepted accounting principles in the United States as in effect from time to time, except that for purposes of
Section 7.1, GAAP shall be determined on the basis of such principles in effect on the date hereof and consistent with those used in the preparation of the most recent audited financial
statements referred to in Section 4.1(b). In the event that any "Accounting Change" (as defined below) shall occur and such change results in a change in the method of calculation of financial
covenants, standards or terms in this Agreement, then the Borrower and the Administrative Agent agree to enter into negotiations in order to amend such provisions of this Agreement so as to reflect
equitably such Accounting Changes with the desired result that the criteria for evaluating the Borrower's financial condition shall be the same after such Accounting Changes as if such Accounting
Changes had not been made. Until such time as such an amendment shall have been executed and delivered by the Borrower, the Administrative Agent and the Required Lenders, all financial covenants,
standards and terms in this Agreement shall continue to be calculated or construed as if such Accounting Changes had not occurred. "Accounting Changes" refers to changes in accounting principles
required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants or, if applicable,
the SEC. 


        "Governmental Authority": any nation or government, any state or other political subdivision thereof, any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government, any
securities exchange and any self-regulatory organization (including the National Association of Insurance Commissioners). 


9







 



        "Group Members": the collective reference to the Borrower and its Subsidiaries. 


        "Guarantee and Collateral Agreement": the Guarantee and Collateral Agreement to be executed and delivered by the Borrower and each
Subsidiary Guarantor, substantially in the form of Exhibit A. 


        "Guarantee Obligation": as to any Person (the "guaranteeing person"), any obligation,
including a reimbursement, counterindemnity or similar obligation, of the guaranteeing Person that guarantees or in effect guarantees, or which is given to induce the creation of a separate obligation
by another Person (including any bank under any letter of credit) that guarantees or in effect guarantees, any Indebtedness, leases, dividends or other monetary obligations (the
"primary obligations") of any other third Person (the "primary obligor") in any manner, whether directly
or indirectly, including any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; provided, however, that the term Guarantee
Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed
to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by the Borrower in good faith. 


        "Indebtedness": of any Person at any date, without duplication, (a) all indebtedness of such Person for borrowed money,
(b) all obligations of such Person for the deferred purchase price of property or services (other than trade payables incurred in the ordinary course of such Person's business which are not
more than 90 days past due or are being disputed in good faith), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all
indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all Capital Lease Obligations of such Person, (f) all obligations of such
Person, contingent or otherwise, as an account party or applicant under or in respect of acceptances, letters of credit, surety bonds or similar arrangements (other than trade letters of credit),
(g) the liquidation value of all mandatorily redeemable preferred Capital Stock of such Person, (h) all Guarantee Obligations of such Person in respect of obligations of the kind
referred to in clauses (a) through (g) above, (i) all obligations of the kind referred to in clauses (a) through (h) above secured by (or for which the holder of
such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by such Person, whether or not such Person has
assumed or become liable for the payment of such obligation, and (j) for the purposes of Section 8(e) only, all obligations of such Person in respect of Swap Agreements. The Indebtedness
of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness expressly provide that such Person is not liable therefor. 


10







 



        "Indenture": the Indenture, dated as of August 20, 2003, between the Borrower and The Bank of New York with respect to the
Convertible Senior Subordinated Debentures, together with all instruments and other agreements entered into by the Borrower or its Subsidiaries in connection therewith. 


        "Insolvency": with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of Section 4245
of ERISA. 


        "Insolvent": pertaining to a condition of Insolvency. 



        "Intellectual Property": the collective reference to all rights, priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise, including copyrights, copyright licenses, patents, patent licenses, trademarks, trademark licenses, technology,
know-how and processes, and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom. 


        "Interest Payment Date": (a) as to any ABR Loan (other than any Swingline Loan), the last day of each March, June, September and
December to occur while such Loan is outstanding and the final maturity date of such Loan, (b) as to any Eurodollar Loan having an Interest Period of three months or less, the last day of such
Interest Period, (c) as to any Eurodollar Loan having an Interest Period longer than three months, each day that is three months, or a whole multiple thereof, after the first day of such
Interest Period and the last day of such Interest Period, (d) as to any Loan (other than any Revolving Loan that is an ABR Loan and any Swingline Loan), the date of any repayment or prepayment
made in respect thereof and (e) as to any Swingline Loan, the day that such Loan is required to be repaid. 


        "Interest Period": as to any Eurodollar Loan, (a) initially, the period commencing on the borrowing or conversion date, as the case
may be, with respect to such Eurodollar Loan and ending one, two, three or six months thereafter, as selected by the Borrower in its notice of borrowing or notice of conversion, as the case may be,
given with respect thereto; and (b) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such Eurodollar Loan and ending one, two, three or six
months thereafter, as selected by the Borrower by irrevocable notice to the Administrative Agent not later than 11:00 A.M., New York City time, on the date that is three Business Days prior to
the last day of the then current Interest Period with respect thereto; provided that, all of the foregoing provisions relating to Interest Periods are
subject to the following: 



          (i)  if
any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the
result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day; 


         (ii)  the
Borrower may not select an Interest Period under the Revolving Facility that would extend beyond the Revolving Termination Date or an Interest Period under the Term
Facility that would extend beyond the date final payment is due on the Term Loans; 



        (iii)  any
Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last Business Day of a calendar month; and 


        (iv)  the
Borrower shall select Interest Periods so as not to require a payment or prepayment of any Eurodollar Loan during an Interest Period for such Loan. 




        "Investments": as defined in Section 7.7. 



        "Involuntary Disposition" means any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any
property of any Loan Party. 


11







 



        "Issuing Lender": (a) in respect of Existing Letters of Credit only, the Existing Issuing Lender and (b) in respect of each
Letter of Credit issued hereunder on or after the Closing Date, (i) JPMorgan Chase Bank or any affiliate thereof or (ii) any other Lender from time to time designated by the Borrower as
an Issuing Lender with the consent of such Lender and the Administrative Agent, in each case in its capacity as issuer of any Letter of Credit. 


        "L/C Commitment": $10,000,000. 


        "L/C Obligations": at any time, an amount equal to the sum of (a) the aggregate then undrawn and unexpired amount of the then
outstanding Letters of Credit and (b) the aggregate amount of drawings under Letters of Credit that have not then been reimbursed pursuant to Section 3.5. 



        "L/C Participants": with respect to any Letter of Credit, the collective reference to all the Revolving Lenders other than the Issuing
Lender that issued such Letter of Credit. 


        "Lenders": as defined in the preamble hereto; provided, that unless the context otherwise
requires, each reference herein to the Lenders shall be deemed to include any Conduit Lender. 


        "Letters of Credit": as defined in Section 3.1(a). 



        "Lien": any mortgage, pledge, hypothecation, assignment, encumbrance, lien (statutory or other), charge or other security interest or any
other security agreement of any kind or nature whatsoever in
respect of property of any Person (including any deposit arrangement, preference, priority, preferential arrangement, conditional sale or other title retention agreement, and any capital lease, in any
such case having substantially the same economic effect as any of the foregoing). 


        "Loan": any loan made by any Lender pursuant to this Agreement. 



        "Loan Documents": this Agreement, the Security Documents, the Notes and any amendment, waiver, supplement or other modification to any of
the foregoing. 


        "Loan Parties": each Group Member that is a party to a Loan Document. 


        "Majority Facility Lenders": with respect to any Facility, the holders of more than 50% of the aggregate unpaid principal amount of the
Term Loans or the Total Revolving Extensions of Credit, as the case may be, outstanding under such Facility (or, in the case of the Revolving Facility, prior to any termination of the Revolving
Commitments, the holders of more than 50% of the Total Revolving Commitments). 


        "Material Adverse Effect": a material adverse effect on (a) the business, operations, property or financial condition of the
Borrower and its Subsidiaries taken as a whole or (b) the validity or enforceability of this Agreement or any of the other Loan Documents or the rights or remedies of the Administrative Agent
or the Lenders hereunder or thereunder. 


        "Materials of Environmental Concern": any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such in or under any Environmental Law, including asbestos, polychlorinated biphenyls and urea-formaldehyde
insulation. 


        "Merger Agreement": the Agreement and Plan of Merger, dated as of September 7, 2004, by and among the Borrower, Cavalier
Acquisition Company, LLC, the Target and the Stockholder Representative referred to therein. 


        "Moody's": Moody's Investors Service, Inc. (or any successor thereto). 


        "Multiemployer Plan": a Plan that is a multiemployer plan as defined in Section 4001(a)(3) of ERISA. 


12







 



        "Net Cash Proceeds": (a) in connection with any Asset Sale or any Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds as and when received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise,
but only as and when received), net of attorneys' fees, accountants' fees, investment banking fees, amounts required to be applied to the repayment of Indebtedness secured by a Lien expressly
permitted hereunder on any asset that is the subject of such Asset Sale or Recovery Event (other than any Lien pursuant to a Security Document) or otherwise subject to mandatory prepayment as a result
of such event, any reserves established to fund contingent liabilities reasonably estimated to be payable within the following 36-month period and that are directly attributable to such
event (as determined reasonably and in good faith by the Borrower), and other customary fees and expenses actually incurred in connection therewith, and net of taxes paid or reasonably estimated to be
payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements) and (b) in connection with any issuance or sale of Capital Stock
or any incurrence of Indebtedness, the cash proceeds received from such issuance or incurrence, net of attorneys' fees, investment banking fees, accountants' fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred in connection therewith. 


        "Non-Excluded Taxes": as defined in Section 2.19(a). 


        "Non-U.S. Lender": as defined in Section 2.19(d). 


        "Notes": the collective reference to any promissory note evidencing Loans. 


        "Obligations": the unpaid principal of and interest on (including interest accruing after the maturity of the Loans and Reimbursement
Obligations and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding) the Loans and all other obligations and liabilities of the Borrower to the Administrative Agent
or to any Lender (or, in the case of Specified Swap Agreements, any affiliate of any Lender), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document, the Letters of Credit, any Specified Swap Agreement or any other document made, delivered or
given in connection herewith or therewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including all fees, charges and disbursements of
counsel to the Administrative Agent or to any Lender that are required to be paid by the Borrower pursuant hereto) or otherwise. 


        "Other Taxes": any and all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies
arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document. 


        "Participant": as defined in Section 10.6(c). 



        "PBGC": the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor). 


        "Permitted Business Acquisition": any acquisition of all or substantially all the assets of, or shares or other equity interests in, a
Person or division or line of business of a Person if immediately after giving effect thereto: (a) no Default or Event of Default shall have occurred and be continuing or would result
therefrom, (b) any acquired or newly formed corporation, partnership, association or other business entity shall be a Wholly Owned Subsidiary, or a Domestic Subsidiary in which an Investment is
permitted (and to the extent permitted) pursuant to Section 7.7, and all actions required to be taken, if any, with respect to such acquired or newly formed Subsidiary under Section 6.9
shall have been taken and (c)(i) the Borrower and the Subsidiaries shall be in compliance, on a pro forma basis after giving 


13







 



effect
to such acquisition (without regard to the making of any earn-out payments), with the covenants contained in Section 7.1 recomputed as at the last day of the most recently
ended fiscal quarter of the Borrower and the Subsidiaries as if such acquisition and related financings or other transactions (without regard to the making of any earn-out payments) had
occurred on the first day of each relevant period for testing such compliance, and, if the amount of such investment or series of related investments exceeds $10,000,000 (without regard to the making
of any earn-out payments), then the Borrower shall have delivered to the Administrative Agent an officers' certificate to such effect, together with all relevant financial information for
such Subsidiary or assets, and (ii) any acquired or newly formed Subsidiary shall not be liable for any Indebtedness (except for Indebtedness permitted by Section 7.2). 


        "Person": an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever nature. 



        "Plan": at a particular time, any employee benefit plan that is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA. 


        "Pricing Grid": the table set forth below. 



	 
	 	Revolving Loans and Swingline Loans
	 	Term Loans
	 	 
	 
	Consolidated

Leverage

Ratio
	 	Applicable Margin

for Eurodollar Loans
	 	Applicable Margin

for ABR Loans
	 	Applicable Margin

for Eurodollar Loans
	 	Applicable Margin

for ABR Loans
	 	Commitment

Fee Rate
	 
	>4.00:1.00	 	2.00	%	1.00	%	2.50	%	1.50	%	0.50	%
	>3.50:1.00 and £4.00:1.00	 	1.875	%	0.875	%	2.50	%	1.50	%	0.50	%
	>3.00:1.00 and £3.50:1.00	 	1.75	%	0.75	%	2.50	%	1.50	%	0.375	%
	>2.00:1.00 and £3.00:1.00	 	1.50	%	0.50	%	2.50	%	1.50	%	0.375	%
	£2.00:1.00	 	1.50	%	0.50	%	2.25	%	1.25	%	0.375	%





        For
the purposes of the Pricing Grid, changes in the Applicable Margin resulting from changes in the Consolidated Leverage Ratio shall become effective on the date (the
"Adjustment Date") that is three Business Days after the date on which financial statements are delivered to the Lenders pursuant to Section 6.1
and shall remain in effect until the next change to be effected pursuant to this paragraph. If any financial statements referred to above are not delivered within the time periods specified in
Section 6.1, then, until the date that is three Business Days after the date on which such financial statements are delivered, the highest rate set forth in each column of the Pricing Grid
shall apply. In addition, at all times while an Event of Default shall have occurred and be continuing, the highest rate set forth in each column of the Pricing Grid shall apply. Each determination of
the Consolidated Leverage Ratio pursuant to the Pricing Grid shall be made in a manner consistent with the determination thereof pursuant to Section 7.1. 


        "Pro Forma Balance Sheet": as defined in Section 4.1(a). 


        "Projections": as defined in Section 6.2(c). 


        "Properties": as defined in Section 4.17(a). 


14







 



        "Recovery Event": any settlement of or payment in respect of any property or casualty insurance claim or any condemnation proceeding
relating to any asset of any Group Member in excess of $5,000,000. 


        "Refunded Swingline Loans": as defined in Section 2.7. 


        "Register": as defined in Section 10.6(b). 


        "Regulation U": Regulation U of the Board as in effect from time to time. 


        "Reimbursement Obligation": the obligation of the Borrower to reimburse each Issuing Lender pursuant to Section 3.5 for amounts
drawn under Letters of Credit issued by such Issuing Lender. 


        "Reinvestment Deferred Amount": with respect to any Reinvestment Event, the aggregate Net Cash Proceeds received by any Group Member in
connection therewith that are not applied to prepay the Term Loans or reduce the Revolving Commitments pursuant to Section 2.11(c) as a result of the delivery of a Reinvestment Notice. 


        "Reinvestment Event": any Asset Sale or Recovery Event in respect of which the Borrower has delivered a Reinvestment Notice. 



        "Reinvestment Notice": a written notice executed by a Responsible Officer stating that no Event of Default has occurred and is continuing
and that the Borrower (directly or indirectly through a Subsidiary) intends and expects to use all or a specified portion of the Net Cash Proceeds of an Asset Sale or Recovery Event to acquire or
repair assets useful in its business. 


        "Reinvestment Prepayment Amount": with respect to any Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any
amount expended prior to the relevant Reinvestment Prepayment Date to acquire or repair assets useful in the Borrower's business. 



        "Reinvestment Prepayment Date": with respect to any Reinvestment Event, the earlier of (a) the date occurring 12 months
after such Reinvestment Event and (b) the date on which the Borrower shall have determined not to, or shall have otherwise ceased to, acquire or repair assets useful in the Borrower's business
with all or any portion of the relevant Reinvestment Deferred Amount. 


        "Reorganization": with respect to any Multiemployer Plan, the condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA. 


        "Reportable Event": any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Reg. § 4043. 


        "Required Lenders": at any time, the holders of more than 50% of (a) until the Closing Date, the Commitments then in effect and
(b) thereafter, the sum of (i) the aggregate unpaid principal amount of the Term Loans then outstanding and (ii) the Total Revolving Commitments then in effect or, if the
Revolving Commitments have been terminated, the Total Revolving Extensions of Credit then outstanding. 



        "Requirement of Law": as to any Person, the Certificate of Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is subject. 


        "Responsible Officer": the chief executive officer, president or chief financial officer of the Borrower, but in any event, with respect
to financial matters, the chief financial officer of the Borrower. 


15









   
        "Restricted Payments": as defined in Section 7.6. 


        "Revolving Commitment": as to any Lender, the obligation of such Lender, if any, to make Revolving Loans and participate in Swingline
Loans and Letters of Credit in an aggregate principal and/or face amount not to exceed the amount set forth opposite the heading "Revolving Commitment" on Schedule 1 to the Addendum delivered
by such Lender or in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof. The original amount
of the Total Revolving Commitments is $45,000,000. 


        "Revolving Commitment Period": the period from and including the Closing Date to the Revolving Termination Date. 


        "Revolving Extensions of Credit": as to any Revolving Lender at any time, an amount equal to the sum of (a) the aggregate principal
amount of all Revolving Loans held by such Lender then outstanding, (b) such Lender's Revolving Percentage of the L/C Obligations then outstanding and (c) such Lender's Revolving
Percentage of the aggregate principal amount of Swingline Loans then outstanding. 


        "Revolving Lender": each Lender that has a Revolving Commitment or that holds Revolving Loans. 


        "Revolving Loans": as defined in Section 2.4(a). 


        "Revolving Percentage": as to any Revolving Lender at any time, the percentage which such Lender's Revolving Commitment then constitutes
of the Total Revolving Commitments or, at any time after the Revolving Commitments shall have expired or terminated, the percentage which the aggregate principal amount of such Lender's Revolving
Loans then outstanding constitutes of the aggregate principal amount of the Revolving Loans then outstanding, provided, that, in the event that the
Revolving Loans are paid in full prior to the reduction to zero of the Total Revolving Extensions of Credit, the Revolving Percentages shall be determined in a manner designed to ensure that the other
outstanding Revolving Extensions of Credit shall be held by the Revolving Lenders on a comparable basis. 


        "Revolving Termination Date": October 14, 2009. 


        "S&P": Standard & Poor's Ratings Services (or any successor thereto). 


        "SEC": the Securities and Exchange Commission, any successor thereto and any analogous Governmental Authority. 


        "Security Documents": the collective reference to the Guarantee and Collateral Agreement and all other security documents hereafter
delivered to the Administrative Agent granting a Lien on any property of any Person to secure the obligations and liabilities of any Loan Party under any Loan Document. 



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


        "Solvent": when used with respect to any Person, means that, as of any date of determination, (a) the amount of the "present fair
saleable value" of the assets of such Person will, as of such date, exceed the amount of all "liabilities of such Person, contingent or otherwise", as of such date, as such quoted terms are determined
in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b) the present fair saleable value of the assets of such Person will, as of such
date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such Person will not have, as of such
date, an unreasonably small amount of capital with which to conduct its business, and (d) such Person will be able to pay its debts as they mature. For purposes of this definition,
(i) "debt" means liability on a "claim", and (ii) "claim" means any (x) right to payment, whether or not such a right is 


16







 



reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach
of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed,
secured or unsecured. 


        "Specified Swap Agreement": any Swap Agreement entered into by the Borrower and any Lender or affiliate thereof in respect of interest
rates. 


        "Subsidiary": as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the
board of directors or other managers of such corporation, partnership or other
entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower. 


        "Subsidiary Guarantor": each Domestic Subsidiary of the Borrower other than any Excluded Domestic Subsidiary. 



        "Subsidiary Non-Guarantor": any Subsidiary of the Borrower that is not a Subsidiary Guarantor. 


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


        "Swingline Commitment": the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.6 in an aggregate
principal amount at any one time outstanding not to exceed $5,000,000. 


        "Swingline Lender": JPMorgan Chase Bank, in its capacity as the lender of Swingline Loans. 


        "Swingline Loans": as defined in Section 2.6. 


        "Swingline Participation Amount": as defined in Section 2.7. 


        "Syndication Agent": as defined in the preamble hereto. 


        "Target": Upstate Group, Inc., a Delaware corporation. 


        "Term Commitment": as to any Lender, the obligation of such Lender, if any, to make a Term Loan to the Borrower in a principal amount not
to exceed the amount set forth opposite the heading "Term
Commitment" on Schedule 1 to the Addendum delivered by such Lender. The original aggregate amount of the Term Commitments is $80,000,000. 


        "Term Lender": each Lender that has a Term Commitment or that holds a Term Loan. 


        "Term Loan": as defined in Section 2.1. 


        "Term Percentage": as to any Term Lender at any time, the percentage which such Lender's Term Commitment then constitutes of the aggregate
Term Commitments (or, at any time after the Closing Date, the percentage which the aggregate principal amount of such Lender's Term Loans then outstanding constitutes of the aggregate principal amount
of the Term Loans then outstanding). 


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        "Total Revolving Commitments": at any time, the aggregate amount of the Revolving Commitments then in effect. 



        "Total Revolving Extensions of Credit": at any time, the aggregate amount of the Revolving Extensions of Credit of the Revolving Lenders
outstanding at such time. 


        "Transferee": any Assignee or Participant. 


        "Type": as to any Loan, its nature as an ABR Loan or a Eurodollar Loan. 


        "United States": the United States of America. 



        "US Dollar Amount": in respect of an amount all or a portion of which is denominated in CDN Dollars or US Dollars, the sum of
(a) the portion thereof denominated in US Dollars, plus (b) the US Dollar Equivalent of the portion thereof denominated in CDN Dollars. 


        "US Dollar Equivalent": at any time for the determination thereof, with respect to any amount of CDN Dollars, the amount of US Dollars
which could be purchased with such amount of CDN Dollars at the spot rate of exchange therefor as quoted by the Administrative Agent as of 12:00 noon (New York City time) on the date of any
determination thereof for purchase on such date. 


        "US Dollars" and "$": dollars in lawful currency of the United States. 


        "Wholly Owned Subsidiary": as to any Person, any other Person all of the Capital Stock of which (other than directors' qualifying shares
required by law) is owned by such Person directly and/or through other Wholly Owned Subsidiaries. 


        "Wholly Owned Guarantor": any Subsidiary Guarantor that is a Wholly Owned Subsidiary of the Borrower. 



        1.2    Other Definitional Provisions.    (a) Unless otherwise specified therein, all terms defined in this
Agreement shall have the defined meanings when used in the other Loan Documents or any certificate or other document made or delivered pursuant hereto or thereto. 


        (b)   As
used herein and in the other Loan Documents, and any certificate or other document made or delivered pursuant hereto or thereto, (i) accounting terms relating
to any Group Member not defined in Section 1.1 and accounting terms partly defined in Section 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP,
(ii) the words "include", "includes" and "including" shall be deemed to be followed by the phrase "without limitation", (iii) the word "incur" shall be construed to mean incur, create,
issue, assume, become liable in respect of or suffer to exist (and the words "incurred" and "incurrence" shall have correlative meanings), (iv) the words "asset" and "property" shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, Capital Stock, securities, revenues, accounts, leasehold
interests and contract rights, and (v) references to agreements or other Contractual Obligations shall, unless otherwise specified, be deemed to refer to such agreements or Contractual
Obligations as amended, supplemented, restated or otherwise modified from time to time. 



        (c)   The
words "hereof", "herein" and "hereunder" and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise specified. 


        (d)   The
meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms. 


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SECTION 2. AMOUNT AND TERMS OF COMMITMENTS  


        2.1    Term Commitments.    Subject to the terms and conditions hereof, each Term Lender severally agrees to make a
term loan (a "Term Loan") to the Borrower on the Closing Date in an amount not to exceed the amount of the Term Commitment of such Lender. The Term
Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 2.12. 


        2.2    Procedure for Term Loan Borrowing.    The Borrower shall give the Administrative Agent irrevocable notice
(which notice must be received by the Administrative Agent prior to 10:00 A.M., New York City time, one Business Day prior to the anticipated Closing Date) requesting that the Term Lenders make
the Term Loans on the Closing Date and specifying the amount to be borrowed. Upon receipt of such notice the Administrative Agent shall promptly notify each Term Lender thereof. Not later than 12:00
Noon, New York City time, on the Closing Date each Term Lender shall make available to the Administrative Agent at the Funding Office an amount in immediately available funds equal to the Term Loan or
Term Loans to be made by such Lender. The Administrative Agent shall credit the account of the Borrower on the books of such office of the Administrative Agent with the aggregate of the amounts made
available to the Administrative Agent by the Term Lenders in immediately available funds. 


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        2.3    Repayment of Term Loans.    The Term Loan of each Lender shall mature in 28 consecutive quarterly installments,
each of which shall be in an amount equal to such Lender's Term Percentage multiplied by the amount set forth below opposite such installment: 



	Installment
 
	 	Principal Amount

	March 31, 2005	 	$	200,000
	June 30, 2005	 	$	200,000
	September 30, 2005	 	$	200,000
	December 31, 2005	 	$	200,000
	March 31, 2006	 	$	200,000
	June 30, 2006	 	$	200,000
	September 30, 2006	 	$	200,000
	December 31, 2006	 	$	200,000
	March 31, 2007	 	$	200,000
	June 30, 2007	 	$	200,000
	September 30, 2007	 	$	200,000
	December 31, 2007	 	$	200,000
	March 31, 2008	 	$	200,000
	June 30, 2008	 	$	200,000
	September 30, 2008	 	$	200,000
	December 31, 2008	 	$	200,000
	March 31, 2009	 	$	200,000
	June 30, 2009	 	$	200,000
	September 30, 2009	 	$	200,000
	December 31, 2009	 	$	200,000
	March 31, 2010	 	$	9,500,000
	June 30, 2010	 	$	9,500,000
	September 30, 2010	 	$	9,500,000
	December 31, 2010	 	$	9,500,000
	March 31, 2011	 	$	9,500,000
	June 30, 2011	 	$	9,500,000
	September 30, 2011	 	$	9,500,000
	October 14, 2011	 	$	9,500,000






        2.4    Revolving Commitments.    (a) Subject to the terms and conditions hereof, each Revolving Lender
severally agrees to make revolving credit loans ("Revolving Loans") to the Borrower from time to time during the Revolving Commitment Period in an
aggregate principal amount at any one time outstanding which, when added to such Lender's Revolving Percentage of the sum of (i) the L/C Obligations then outstanding and (ii) the
aggregate principal amount of the Swingline Loans then outstanding, does not exceed the amount of such Lender's Revolving Commitment. During the Revolving Commitment Period the Borrower may use the
Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Loans may from time to
time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.5 and 2.12. 


        (b)   The
Borrower shall repay all outstanding Revolving Loans on the Revolving Termination Date. 


        2.5    Procedure for Revolving Loan Borrowing.    The Borrower may borrow under the Revolving Commitments during the
Revolving Commitment Period on any Business Day, provided that the Borrower shall give the Administrative Agent irrevocable notice (which notice must be
received by the Administrative Agent prior to 11:00 A.M., New York City time, (a) three Business Days prior to the 


20







 



requested
Borrowing Date, in the case of Eurodollar Loans, or (b) one Business Day prior to the requested Borrowing Date, in the case of ABR Loans)
(provided that any such notice of a borrowing of ABR Loans under the Revolving Facility to finance payments required by Section 3.5 may be given
not later than 10:00 A.M., New York City time, on the date of the proposed borrowing), specifying (i) the amount and Type of Revolving Loans to be borrowed, (ii) the requested
Borrowing Date and (iii) in the case of Eurodollar Loans, the respective amounts of each such Type of Loan and the respective lengths of the initial Interest Period therefor. Each borrowing
under the Revolving Commitments shall be in an amount equal to (x) in the case of ABR Loans, $1,000,000 or a whole multiple thereof (or, if the then aggregate Available Revolving Commitments
are less than $1,000,000, such lesser amount) and (y) in the case of Eurodollar Loans, $5,000,000 or a whole multiple of $1,000,000 in excess thereof;  provided, that the Swingline Lender may
request, on behalf of the Borrower, borrowings under the Revolving Commitments that are ABR Loans in other
amounts pursuant to Section 2.7. Upon receipt of any such notice from the Borrower, the Administrative Agent shall promptly notify each Revolving Lender thereof. Each Revolving Lender will make
the amount of its pro rata share of each borrowing available to the Administrative Agent for the account of the Borrower at the Funding Office prior to
12:00 Noon, New York City time, on the Borrowing Date requested by the Borrower in funds immediately available to the Administrative Agent. Such borrowing will then be made available to the Borrower
by the Administrative Agent crediting the account of the Borrower on the books of such office with the aggregate of the amounts made available to the Administrative Agent by the Revolving Lenders and
in like funds as received by the Administrative Agent. 


        2.6    Swingline Commitment.    (a) Subject to the terms and conditions hereof, the Swingline Lender agrees to
make a portion of the credit otherwise available to the Borrower under the Revolving Commitments from time to time during the Revolving Commitment Period by making swing line loans
("Swingline Loans") to the Borrower; provided that (i) the aggregate principal amount of
Swingline Loans outstanding at any time shall not exceed the Swingline Commitment then in effect (notwithstanding that the Swingline Loans outstanding at any time, when aggregated with the Swingline
Lender's other outstanding Revolving Loans, may exceed the Swingline Commitment then in effect) and (ii) the Borrower shall not request, and the Swingline Lender shall not make, any Swingline
Loan if, after giving effect to the making of such Swingline Loan, the aggregate amount of the Available Revolving Commitments would be less than zero. During the Revolving Commitment Period, the
Borrower may use the Swingline Commitment by borrowing, repaying and reborrowing, all in accordance with the terms and conditions hereof. Swingline Loans shall be ABR Loans only. 


        (b)   The
Borrower shall repay to the Swingline Lender the then unpaid principal amount of each Swingline Loan on the earlier of the Revolving Termination Date and the first
date after such Swingline Loan is made that is the 15th or last day of a calendar month and is at least two Business Days after such Swingline Loan is made;  provided that on each date that a Revolving
Loan is borrowed, the Borrower shall repay all Swingline Loans then outstanding. 


        2.7    Procedure for Swingline Borrowing; Refunding of Swingline Loans.    (a) Whenever the Borrower desires
that the Swingline Lender make Swingline Loans it shall give the Swingline Lender irrevocable telephonic notice confirmed promptly in writing (which telephonic notice must be received by the Swingline
Lender not later than 1:00 P.M., New York City time, on the proposed Borrowing Date), specifying (i) the amount to be borrowed and (ii) the requested Borrowing Date (which shall
be a Business Day during the Revolving Commitment Period). Each borrowing under the Swingline Commitment shall be in an amount equal to $500,000 or a whole multiple of $100,000 in excess thereof. Not
later than 3:00 P.M., New York City time, on the Borrowing Date specified in a notice in respect of Swingline Loans, the Swingline Lender shall make available to the Administrative Agent at the
Funding Office an amount in immediately available funds equal to the amount of the Swingline Loan to be made by the Swingline Lender. The Administrative Agent shall make the proceeds of such Swingline
Loan available to the Borrower on such Borrowing Date by depositing such proceeds in the 


21







 

account
of the Borrower with the Administrative Agent on such Borrowing Date in immediately available funds. 


        (b)   The
Swingline Lender, at any time and from time to time in its sole and absolute discretion may, on behalf of the Borrower (which hereby irrevocably directs the
Swingline Lender to act on its behalf), on one Business Day's notice given by the Swingline Lender no later than 12:00 Noon, New York City time, request each Revolving Lender to make, and each
Revolving Lender hereby agrees to make, a Revolving Loan, in an amount equal to such Revolving Lender's Revolving Percentage of the aggregate amount of the Swingline Loans (the
"Refunded Swingline Loans") outstanding on the date of such notice, to repay the Swingline Lender. Each Revolving Lender shall make the amount of such
Revolving Loan available to the Administrative Agent at the Funding Office in immediately available funds, not later than 10:00 A.M., New York City time, one Business Day after the date of such
notice. The proceeds of such Revolving Loans shall be immediately made available by the Administrative Agent to the Swingline Lender for application by the Swingline Lender to the repayment of the
Refunded Swingline Loans. The Borrower irrevocably authorizes the Swingline Lender to charge the Borrower's accounts with the Administrative Agent (up to the amount available in each such account) in
order to immediately pay the amount of such Refunded Swingline Loans to the extent amounts received from the Revolving Lenders are not sufficient to repay in full such Refunded Swingline Loans. 


        (c)   If
prior to the time a Revolving Loan would have otherwise been made pursuant to Section 2.7(b), one of the events described in Section 8(f) shall have
occurred and be continuing with respect to the Borrower or if for any other reason, as determined by the Swingline Lender in its sole discretion, Revolving Loans may not be made as contemplated by
Section 2.7(b), each Revolving Lender shall, on the date such Revolving Loan was to have been made pursuant to the notice referred to in Section 2.7(b), purchase for cash an undivided
participating interest in the then outstanding Swingline Loans by paying to the Swingline Lender an amount (the "Swingline Participation Amount") equal
to (i) such Revolving Lender's Revolving Percentage times (ii) the sum of the aggregate principal amount of Swingline Loans then
outstanding that were to have been repaid with such Revolving Loans. 


        (d)   Whenever,
at any time after the Swingline Lender has received from any Revolving Lender such Lender's Swingline Participation Amount, the Swingline Lender receives any
payment on account of the Swingline Loans, the Swingline Lender will distribute to such Lender its Swingline Participation Amount (appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such Lender's participating interest was outstanding and funded and, in the case of principal and interest payments, to reflect such Lender's  pro rata portion of such
payment if such payment is not sufficient to pay the principal of and interest on all Swingline Loans then due);  provided, however, that in the event that
such payment received by the Swingline Lender is required to
be returned, such Revolving Lender will return to the Swingline Lender any portion thereof previously distributed to it by the Swingline Lender. 


        (e)   Each
Revolving Lender's obligation to make the Loans referred to in Section 2.7(b) and to purchase participating interests pursuant to Section 2.7(c) shall
be absolute and unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right that such Revolving Lender or the
Borrower may have against the Swingline Lender, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default or an Event of Default or the failure
to satisfy any of the other conditions specified in Section 5, (iii) any adverse change in the condition (financial or otherwise) of the Borrower, (iv) any breach of this
Agreement or any other Loan Document by the Borrower, any other Loan Party or any other Revolving Lender or (v) any other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing. 


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        2.8    Commitment Fees, etc.    


        (a)   The
Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender a commitment fee for the period from and including the date hereof to the
last day of the Revolving Commitment Period, computed at the Commitment Fee Rate on the average daily amount of the Available Revolving Commitment of such Lender during the period for which payment is
made, payable quarterly in arrears on each Fee Payment Date, commencing on the first such date to occur after the date hereof. 


        (b)   The
Borrower agrees to pay to the Administrative Agent the fees in the amounts and on the dates as set forth in any fee agreements with the Administrative Agent and to
perform any other obligations contained therein. 


        2.9    Termination or Reduction of Revolving Commitments.    The Borrower shall have the right, upon not less than
three Business Days' notice to the Administrative Agent, to terminate the Revolving Commitments or, from time to time, to reduce the amount of the Revolving Commitments;  provided that no such
termination or reduction of Revolving Commitments shall be permitted if, after giving effect thereto
and to any prepayments of the Revolving Loans and Swingline Loans made on the effective date thereof, the Total Revolving Extensions of Credit would exceed the Total Revolving Commitments. Any such
reduction shall be in an amount equal to $1,000,000, or a whole multiple thereof, and shall reduce permanently the Revolving Commitments then in effect. 


        2.10    Optional Prepayments.    The Borrower may at any time and from time to time prepay the Loans, in whole or in
part, without premium or penalty, upon irrevocable notice delivered to the Administrative Agent no later than 11:00 A.M., New York City time, three Business Days prior thereto, in the case of
Eurodollar Loans, and no later than 11:00 A.M., New York City time, one Business Day prior thereto, in the case of ABR Loans, which notice shall specify the date and amount of prepayment and
whether the prepayment is of Eurodollar Loans or ABR Loans; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the
Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.20. Upon receipt of any such notice the Administrative Agent shall promptly notify each
relevant Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (except in the case of Revolving Loans
that are ABR Loans and Swingline Loans) accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans and Revolving Loans shall be in an aggregate principal amount of
$1,000,000 or a whole multiple thereof. Partial prepayments of Swingline Loans shall be in an aggregate principal amount of $100,000 or a whole multiple thereof. 


        2.11    Mandatory Prepayments and Commitment Reductions.    (a) If any Capital Stock shall be issued by any
Group Member (other than any Capital Stock sold to management of any Group Member in connection with option or other compensation arrangements or issued to another Group Member), an amount equal to
50% of the Net Cash Proceeds thereof shall be applied toward the prepayment of the Term Loans as set forth in Section 2.11(e) not later than the Business Day following receipt of such Net Cash
Proceeds. 


        (b)   If
any Indebtedness shall be incurred by any Group Member (excluding any Indebtedness incurred in accordance with Section 7.2), an amount equal to 100% of the Net
Cash Proceeds thereof shall be applied toward the prepayment of the Term Loans as set forth in Section 2.11(e) not later than the Business Day following receipt of such Net Cash Proceeds. 


        (c)   If
on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect
thereof, such Net Cash Proceeds shall be applied toward the prepayment of the Term Loans as set forth in Section 2.11(e) not later than the Business Day following receipt of such Net Cash
Proceeds; provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be 


23







 



excluded
from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $10,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an
amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 2.11(e). 



        (d)   If,
for any fiscal year of the Borrower commencing with the fiscal year ending December 31, 2005, there shall be Excess Cash Flow, the Borrower shall, on the
relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans as set forth in Section 2.11(e). Each such prepayment shall
be made on a date (an "Excess Cash Flow Application Date") no later than five days after the earlier of (i) the date on which the financial
statements of the Borrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders and (ii) the date
such financial statements are actually delivered. 


        (e)   The
application of any prepayment pursuant to Section 2.11 shall be made, first, to ABR Loans and,  second, to Eurodollar Loans, in each case in accordance
with Section 2.17(b). Each prepayment of the Loans under Section 2.11 shall be
accompanied by accrued interest to the date of such prepayment on the amount prepaid. 


        (f)    If
at any time the US Dollar Amount of the Total Revolving Extensions of Credit or the US Dollar Amount of the L/C Obligations exceed 105% of the Total Revolving
Commitments or the L/C Commitment, respectively, as a result of the fluctuation of currency values, the Borrower shall immediately repay the aggregate outstanding Revolving Loans or reimburse any
drawings under Letters of Credit, to the extent required to eliminate such excess. If any such excess remains after repayment in full of the aggregate outstanding Revolving Loans and reimbursement in
full of any drawings under Letters of Credit, the Borrower shall provide cash collateral for Letters of Credit, to the extent required to eliminate such excess, in form and substance reasonably
satisfactory to the Administrative Agent. 


        2.12    Conversion and Continuation Options.    (a) The Borrower may elect from time to time to convert
Eurodollar Loans to ABR Loans by giving the Administrative Agent prior irrevocable notice of such election no later than 11:00 A.M., New York City time, on the Business Day preceding the
proposed conversion date, provided that any such conversion of Eurodollar Loans may only be made on the last day of an Interest Period with respect
thereto. The Borrower may elect from time to time to convert ABR Loans to Eurodollar Loans by giving the Administrative Agent prior irrevocable notice of such election no later than 11:00 A.M.,
New York City time, on the third Business Day preceding the proposed conversion date (which notice shall specify the length of the initial Interest Period therefor),  provided that no ABR Loan under a
particular Facility may be converted into a Eurodollar Loan when any Event of Default has occurred and is continuing
and the Administrative Agent or the Majority Facility Lenders in respect of such Facility have determined in its or their sole discretion not to permit such conversions. Upon receipt of any such
notice the Administrative Agent shall promptly notify each relevant Lender thereof. 


        (b)   Any
Eurodollar Loan may be continued as such upon the expiration of the then current Interest Period with respect thereto by the Borrower giving irrevocable notice to
the Administrative Agent, in accordance with the applicable provisions of the term "Interest Period" set forth in Section 1.1, of the length of the next Interest Period to be applicable to such
Loans, provided that no Eurodollar Loan under a particular Facility may be continued as such when any Event of Default has occurred and is continuing
and the Administrative Agent has or the Majority Facility Lenders in respect of such Facility have determined in its or their sole discretion not to permit such continuations, and  provided, further, that if the Borrower shall fail to give any required notice as described above in
this paragraph or if such continuation is not permitted pursuant to the preceding proviso such Loans shall be automatically converted to ABR Loans on the last day of such then expiring Interest
Period. 


24







 



Upon
receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof. 



        2.13    Limitations on Eurodollar Tranches.    Notwithstanding anything to the contrary in this Agreement, all
borrowings, conversions and continuations of Eurodollar Loans and all selections of Interest Periods shall be in such amounts and be made pursuant to such elections so that, (a) after giving
effect thereto, the aggregate principal amount of the Eurodollar Loans comprising each Eurodollar Tranche shall be equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof and
(b) no more than ten Eurodollar Tranches shall be outstanding at any one time. 



        2.14    Interest Rates and Payment Dates.    (a) Each Eurodollar Loan shall bear interest for each day during
each Interest Period with respect thereto at a rate per annum equal to the Eurodollar Rate determined for such day plus the Applicable Margin. 


        (b)   Each
ABR Loan shall bear interest at a rate per annum equal to the ABR plus the Applicable Margin. 


        (c)   (i) If
all or a portion of the principal amount of any Loan or Reimbursement Obligation shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), all outstanding Loans and Reimbursement Obligations (whether or not overdue) shall bear interest at a rate per annum equal to (x) in the case of the Loans, the rate
that would otherwise be applicable thereto pursuant to the foregoing provisions of this Section plus 2% or (y) in the case of Reimbursement
Obligations, the rate applicable to ABR Loans under the Revolving Facility plus 2%, and (ii) if all or a portion of any interest payable on any
Loan or Reimbursement Obligation or any commitment fee or other amount payable hereunder shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount
shall bear interest at a rate per annum equal to the rate then applicable to ABR Loans under the relevant Facility plus 2% (or, in the case of any such
other amounts that do not relate to a particular Facility, the rate then applicable to ABR Loans under the Revolving Facility plus 2%), in each case,
with respect to clauses (i) and (ii) above, from the date of such non-payment until such amount is paid in full (as well after as before judgment). 


        (d)   Interest
shall be payable in arrears on each Interest Payment Date, provided that interest accruing pursuant to
paragraph (c) of this Section shall be payable from time to time on demand. 


        2.15    Computation of Interest and Fees.    (a) Interest and fees payable pursuant hereto shall be calculated
on the basis of a 360-day year for the actual days elapsed, except that, with respect to ABR Loans the rate of interest on which is calculated on the basis of the Prime Rate, the interest
thereon shall be calculated on the basis of a 365- (or 366-, as the case may be) day year for the actual days elapsed. The Administrative Agent shall as soon as practicable
notify the Borrower and the relevant Lenders of each determination of a Eurodollar Rate. Any change in the interest rate on a Loan resulting from a change in the ABR or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business on the day on which such change becomes effective. The Administrative Agent shall as soon as practicable notify the Borrower and the
relevant Lenders of the effective date and the amount of each such change in interest rate. 



        (b)   Each
determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Borrower and the
Lenders in the absence of manifest error. The Administrative Agent shall, at the request of the Borrower, deliver to the Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to Section 2.14(a). 


        2.16    Inability to Determine Interest Rate.    If prior to the first day of any Interest Period: 



        (a)   the
Administrative Agent shall have determined (which determination shall be conclusive and binding upon the Borrower) that, by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or 



25









  



        (b)   the
Administrative Agent shall have received notice from the Majority Facility Lenders in respect of the relevant Facility that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders (as conclusively certified by such Lenders) of making or maintaining their affected Loans during
such Interest Period, 




the
Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the relevant Lenders as soon as practicable thereafter. If such notice is given (x) any Eurodollar
Loans under the relevant Facility requested to be made on the first day of such Interest Period shall be made as ABR Loans, (y) any Loans under the relevant Facility that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be continued as ABR Loans and (z) any outstanding Eurodollar Loans under the relevant Facility shall be converted,
on the last day of the then-current Interest Period, to ABR Loans. Until such notice has been withdrawn by the Administrative Agent, no further Eurodollar Loans under the relevant Facility
shall be made or continued as such, nor shall the Borrower have the right to convert Loans under the relevant Facility to Eurodollar Loans. 



        2.17    Pro Rata Treatment and Payments.    (a) Each borrowing by the Borrower from the Lenders hereunder, each
payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the
respective Term Percentages or Revolving Percentages, as the case may be, of the relevant Lenders. 


        (b)   Each
payment (including each prepayment) by the Borrower on account of principal of and interest on the Term Loans shall be made pro
rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Lenders. The amount of each principal prepayment of the Term Loans shall
be applied to reduce the then remaining installments of the Term Loans pro rata based upon the respective then remaining principal amounts thereof.
Amounts repaid or prepaid on account of the Term Loans may not be reborrowed. 


        (c)   Each
payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Loans shall be made pro
rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Revolving Lenders. 



        (d)   All
payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or
counterclaim and shall be made prior to 12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in US Dollars
(except as otherwise provided in Section 3.5) and in immediately available funds. The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as
received. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding
Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the
result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension
of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension. 


        (e)   Unless
the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute
its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time
on the Borrowing Date 


26







 



therefor,
such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and
(ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available
to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest
error. If such Lender's share of such borrowing is not made available to the Administrative Agent by such Lender within three Business Days after such Borrowing Date, the Administrative Agent shall
also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans under the relevant Facility, on demand, from the Borrower. 


        (f)    Unless
the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the
Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be
required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment
is not made to the Administrative Agent by the Borrower within three Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any
amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein
shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower. 



        2.18    Requirements of Law.    (a) If the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof or compliance by any Lender with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof: 



          (i)  shall
subject any Lender to any tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any Application or any Eurodollar Loan made by it, or
change the basis of taxation of payments to such Lender in respect thereof (except for Non-Excluded Taxes covered by Section 2.19 and changes in the rate of tax on the overall net
income of such Lender); 


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


        (iii)  shall
impose on such Lender any other condition; 




and
the result of any of the foregoing is to increase the cost to such Lender, by an amount that such Lender deems to be material, of making, converting into, continuing or maintaining Eurodollar
Loans or issuing or participating in Letters of Credit, or to reduce any amount receivable hereunder in respect thereof, then, in any such case, the Borrower shall promptly pay such Lender, upon its
demand, any additional amounts necessary to compensate such Lender for such increased cost or reduced amount receivable. If any Lender becomes entitled to claim any additional amounts pursuant to this
paragraph, it shall promptly notify the Borrower (with a copy to the Administrative Agent) of the event by reason of which it has become so entitled. 



        (b)   If
any Lender shall have determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or in the interpretation or application
thereof or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent 


27







 



to
the date hereof shall have the effect of reducing the rate of return on such Lender's or such corporation's capital as a consequence of its obligations hereunder or under or in respect of any
Letter of Credit to a level below that which such Lender or such corporation could have achieved but for such adoption, change or compliance (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) by an amount deemed by such Lender to be material, then from time to time, after submission by such Lender to the Borrower (with a copy to the
Administrative Agent) of a written request therefor, the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such corporation for such reduction. 


        (c)   A
certificate in reasonable detail as to the calculation of any additional amounts payable pursuant to this Section submitted by any Lender to the Borrower (with a copy
to the Administrative Agent) shall be conclusive in the absence of manifest error. Notwithstanding anything to the contrary in this Section, the Borrower shall not be required to compensate a Lender
pursuant to this Section for any amounts incurred more than six months prior to the date that such Lender notifies the Borrower of such Lender's intention to claim compensation therefor;  provided that,
if the circumstances giving rise to such claim have a retroactive effect, then such six-month period shall be extended to
include the period of such retroactive effect. The obligations of the Borrower pursuant to this Section shall survive the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder. 


        2.19    Taxes.    (a) All payments made by the Borrower under this Agreement shall be made free and clear of,
and without deduction or withholding for or on account of, any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent
or any Lender as a result of a present or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations
or received a payment under, or enforced, this Agreement or any other Loan Document). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded Taxes") or Other Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender
hereunder, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all
Non-Excluded Taxes and Other Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement,  provided, however, that the Borrower shall not be required to increase any such amounts payable to any
Lender with respect to any Non-Excluded Taxes (i) that are attributable to such Lender's failure to comply with the requirements of paragraph (d) or (e) of this
Section or (ii) that are United States withholding taxes imposed on amounts payable to such Lender at the time such Lender becomes a party to this Agreement, except to the extent that such
Lender's assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such Non-Excluded Taxes pursuant to this paragraph. 


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



        (c)   Whenever
any Non-Excluded Taxes or Other Taxes are payable by the Borrower, as promptly as possible thereafter the Borrower shall send to the Administrative
Agent for its own account or for the account of the relevant Lender, as the case may be, a certified copy of an original official receipt received by the Borrower showing payment thereof. If the
Borrower fails to pay any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other
required documentary evidence, the Borrower shall 


28







 



indemnify
the Administrative Agent and the Lenders for any incremental taxes, interest or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. 


        (d)   Each
Lender (or Transferee) that is not a "U.S. Person" as defined in Section 7701(a)(30) of the Code (a "Non-U.S.
Lender") shall deliver to the Borrower and the Administrative Agent (or, in the case of a Participant, to the Lender from which the related participation shall have been
purchased) two copies of either U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI, or, in the case of a Non-U.S. Lender claiming exemption from
U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of "portfolio interest", a statement substantially in the form of Exhibit F and a
Form W-8BEN, or any subsequent versions thereof or successors thereto, properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or
a reduced rate of, U.S. federal withholding tax on all payments by the Borrower under this Agreement and the other Loan Documents. Such forms shall be delivered by each Non-U.S. Lender on
or before the date it becomes a party to this Agreement (or, in the case of any Participant, on or before the date such Participant purchases the related participation). In addition, each
Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or invalidity of any form previously delivered by such Non-U.S. Lender. Each Non-U.S. Lender
shall promptly notify the Borrower at any time it determines that it is no longer in a position to provide any previously delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). Notwithstanding any other provision of this paragraph, a Non-U.S. Lender shall not be required to deliver any form pursuant to
this paragraph that such Non-U.S. Lender is not legally able to deliver. 


        (e)   A
Lender that is entitled to an exemption from or reduction of non-U.S. 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 or reasonably requested by the Borrower, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate, provided that such Lender is legally entitled to complete, execute and deliver such documentation and in such Lender's
judgment such completion, execution or submission would not materially prejudice the legal position of such Lender. 


        (f)    The
Administrative Agent and each Lender agree to cooperate with the Borrower, at the Borrower's sole cost and expense, with any application or other request to, or
proceeding with, the applicable Governmental Authority for a refund of any Excluded Taxes or Other Taxes that are subject to the indemnity pursuant to this Section 2.19. If the Administrative
Agent or any Lender determines that it has received a refund of any Non-Excluded Taxes or Other Taxes as to which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section 2.19, it shall pay over such refund to the Borrower (but only to the extent of indemnity payments made, or additional amounts paid,
by the Borrower under this Section 2.19 with respect to the Non-Excluded Taxes or Other Taxes giving rise to such refund), net of all reasonable
out-of-pocket expenses of the Administrative Agent or such Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such
refund); provided, that the Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower
(plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is
required to repay such refund to such Governmental Authority. This paragraph shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other
information relating to its taxes which it deems confidential) to the Borrower or any other Person. 


        (g)   The
agreements in this Section shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. 


29







 



        2.20    Indemnity.    The Borrower agrees to indemnify each Lender for, and to hold each Lender harmless from, any
loss or expense that such Lender may sustain or incur as a consequence of (a) default by the Borrower in making a borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (b) default by the Borrower in making any prepayment of or conversion from Eurodollar Loans
after the Borrower has given a notice thereof in accordance with the provisions of this Agreement or (c) the making of a prepayment of Eurodollar Loans on a day that is not the last day of an
Interest Period with respect thereto. Such indemnification may include an amount equal to the excess, if any, of (i) the amount of interest that would have accrued on the amount so prepaid, or
not so borrowed, converted or continued, for the period from the date of such prepayment or of such failure to borrow, convert or continue to the last day of such Interest Period (or, in the case of a
failure to borrow, convert or continue, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Loans provided for herein
(excluding, however, the Applicable Margin included therein, if any) over (ii) the amount of interest (as reasonably determined by such Lender)
that would have accrued to such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank eurodollar market. A certificate in reasonable
detail as to the calculation of any amounts payable pursuant to this Section submitted to the Borrower by any Lender shall be conclusive in the absence of manifest error. This covenant shall survive
the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. 


        2.21    Change of Lending Office.    Each Lender agrees that, upon the occurrence of any event giving rise to the
operation of Section 2.18 or 2.19(a) with respect to such Lender, it will, if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the good faith judgment of such Lender, cause such Lender and its lending office(s) to suffer no economic, legal or regulatory disadvantage, and  provided,
further, that nothing in this Section shall affect or postpone any of the obligations of the
Borrower or the rights of any Lender pursuant to Section 2.18 or 2.19(a). 


        2.22    Replacement of Lenders.    The Borrower shall be permitted to replace any Lender that (a) requests
reimbursement for amounts owing pursuant to Section 2.18 or 2.19(a) or (b) defaults in its obligation to make Loans hereunder, with a replacement financial institution;  provided that
(i) such replacement does not conflict with any Requirement of Law, (ii) no Event of Default shall have occurred and be
continuing at the time of such replacement, (iii) prior to any such replacement, such Lender shall have taken no action under Section 2.21 so as to eliminate the continued need for
payment of amounts owing pursuant to Section 2.18 or 2.19(a), (iv) the replacement financial institution shall purchase, at par, all Loans and other amounts owing to such replaced Lender
on or prior to the date of replacement, (v) the Borrower shall be liable to such replaced Lender under Section 2.20 if any Eurodollar Loan owing to such replaced Lender shall be
purchased other than on the last day of the Interest Period relating thereto, (vi) the replacement financial institution, if the replaced Lender is a Revolving Lender or if such replacement
financial institution is not already a Lender, shall be reasonably satisfactory to the Administrative Agent, (vii) the replaced Lender shall be obligated to make such replacement in accordance
with the provisions of Section 10.6 (provided that the Borrower shall be obligated to pay the registration and processing fee referred to therein), (viii) until such time as such
replacement shall be consummated, the Borrower shall pay all additional amounts (if any) required pursuant to Section 2.18 or 2.19(a), as the case may be, and (ix) any such replacement
shall not be deemed to be a waiver of any rights that the Borrower, the Administrative Agent or any other Lender shall have against the replaced Lender. 


30







 


SECTION 3. LETTERS OF CREDIT  


        3.1    L/C Commitment.    (a) Prior to the date hereof, the Existing Issuing Lender has issued the Existing
Letters of Credit, which, from and after the date hereof, shall constitute Letters of Credit hereunder. Subject to the terms and conditions hereof, each Issuing Lender, in reliance on the agreements
of the other Revolving Lenders set forth in Section 3.4(a), agrees to issue letters of credit (the letters of credit issued on and after the Closing Date pursuant to this Section 3,
together with the Existing Letters of Credit, collectively, "Letters of Credit") for the account of the Borrower on any Business Day during the
Revolving Commitment Period in such form as may be approved from time to time by such Issuing Lender; provided that no Issuing Lender shall have any
obligation to issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment or (ii) the
aggregate amount of the Available Revolving Commitments would be less than zero. Each Letter of Credit shall (i) be denominated in US Dollars or CDN Dollars and (ii) expire no later than
the earlier of (x) the first anniversary of its date of issuance and (y) the date that is five Business Days prior to the Revolving Termination Date,  provided that any Letter of Credit with a
one-year term may provide for the renewal thereof for additional one-year periods
(which shall in no event extend beyond the date referred to in clause (y) above). 


        (b)   No
Issuing Lender shall at any time be obligated to issue any Letter of Credit if such issuance would conflict with, or cause such Issuing Lender or any L/C Participant
to exceed any limits imposed by, any applicable Requirement of Law. 



        3.2    Procedure for Issuance of Letter of Credit.    The Borrower may from time to time request that an Issuing
Lender issue a Letter of Credit by delivering to such Issuing Lender at its address for notices specified herein an Application therefor, completed to the satisfaction of such Issuing Lender, and such
other certificates, documents and other papers and information as such Issuing Lender may request. Upon receipt of any Application, an Issuing Lender will process such Application and the
certificates, documents and other papers and information delivered to it in connection therewith in accordance with its customary procedures and shall promptly issue the Letter of Credit requested
thereby (but in no event shall such Issuing Lender be required to issue any Letter of Credit earlier than three Business Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto) by issuing the original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed to by such Issuing
Lender and the Borrower. Such Issuing Lender shall furnish a copy of such Letter of Credit to the Borrower promptly following the issuance thereof. Each Issuing Lender shall promptly furnish to the
Administrative Agent, which shall in turn promptly furnish to the Lenders, notice of the issuance of each Letter of Credit issued by such Issuing Lender (including the amount thereof). 



        3.3    Fees and Other Charges.    (a) The Borrower will pay a fee on all outstanding Letters of Credit at a per
annum rate equal to the Applicable Margin then in effect with respect to Eurodollar Loans under the Revolving Facility, shared ratably among the Revolving Lenders and payable quarterly in arrears on
each Fee Payment Date after the issuance date. In addition, the Borrower shall pay to each Issuing Lender for its own account a fronting fee of 0.125% per annum on the undrawn and unexpired amount of
each Letter of Credit issued by such Issuing Lender, payable quarterly in arrears on each Fee Payment Date after the issuance date. 



        (b)   In
addition to the foregoing fees, the Borrower shall pay or reimburse each Issuing Lender for such normal and customary costs and expenses as are incurred or charged by
such Issuing Lender in issuing, negotiating, effecting payment under, amending or otherwise administering any Letter of Credit. 


        3.4    L/C Participations.    (a) Each Issuing Lender irrevocably agrees to grant and hereby grants to each L/C
Participant, and, to induce such Issuing Lender to issue Letters of Credit, each L/C Participant irrevocably agrees to accept and purchase and hereby accepts and purchases from such 


31







 



Issuing
Lender, on the terms and conditions set forth below, for such L/C Participant's own account and risk an undivided interest equal to such L/C Participant's Revolving Percentage in such Issuing
Lender's obligations and rights under and in respect of each Letter of Credit issued by such Issuing Lender and the amount of each draft paid by such Issuing Lender thereunder. Each L/C Participant
agrees with each Issuing Lender that, if a draft is paid under any Letter of Credit issued by such Issuing Lender for which such Issuing Lender is not reimbursed in full by the Borrower in accordance
with the terms of this Agreement, such L/C Participant shall pay to such Issuing Lender upon demand at such Issuing Lender's address for notices specified herein (but, in the case of any such Letter
of Credit denominated in CDN Dollars, not prior to the conversion to US Dollars referred to in Section 3.5) an amount equal to such L/C Participant's Revolving Percentage of the amount of such
draft, or any part thereof, that is not so reimbursed. Each L/C Participant's obligation to pay such amount shall be absolute and unconditional and shall not be affected by any circumstance, including
(i) any setoff, counterclaim, recoupment, defense or other right that such L/C Participant may have against such Issuing Lender, the Borrower or any other Person for any reason whatsoever,
(ii) the occurrence or continuance of a Default or an Event of Default or the failure to satisfy any of the other conditions specified in Section 5, (iii) any adverse change in
the condition (financial or otherwise) of the Borrower, (iv) any breach of this Agreement or any other Loan Document by the Borrower, any other Loan Party or any other L/C Participant or
(v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing 


        (b)   If
any amount required to be paid by any L/C Participant to an Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion of any payment
made by such Issuing Lender under any Letter of Credit issued by it is paid to such Issuing Lender within three Business Days after the date such payment is due, such L/C Participant shall pay to such
Issuing Lender on demand an amount equal to the product of (i) such amount, times (ii) the daily average Federal Funds Effective Rate during the period from and including the date such
payment is required to the date on which such payment is immediately available to such Issuing Lender, times (iii) a fraction the numerator of which is the number of days that elapse during
such period and the denominator of which is 360. If any such amount required to be paid by any L/C Participant pursuant to Section 3.4(a) is not made available to an Issuing Lender by such L/C
Participant within three Business Days after the date such payment is due, such Issuing Lender shall be entitled to recover from such L/C Participant, on demand, such amount with interest thereon
calculated from such due date at the rate per annum applicable to ABR Loans under the Revolving Facility. A certificate of the relevant Issuing Lender submitted to any L/C Participant with respect to
any amounts owing under this Section shall be conclusive in the absence of manifest error. 



        (c)   Whenever,
at any time after an Issuing Lender has made payment under any Letter of Credit issued by such Issuing Lender and has received from any L/C Participant its  pro rata share of such payment in accordance
with Section 3.4(a), such Issuing Lender receives any payment related to such Letter of Credit
(whether directly from the Borrower or otherwise, including proceeds of collateral applied thereto by such Issuing Lender), or any payment of interest on account thereof, such Issuing Lender will
distribute to such L/C Participant its pro rata share thereof; provided,  however, that in the event that any
such payment received by such Issuing Lender shall be required to be returned by such Issuing Lender, such L/C
Participant shall return to such Issuing Lender the portion thereof previously distributed by such Issuing Lender to it. 


        3.5    Reimbursement Obligation of the Borrower.    If any draft is paid under any Letter of Credit, the Borrower
shall reimburse the Issuing Lender that issued such Letter of Credit for the amount of (a) the draft so paid and (b) any taxes, fees, charges or other costs or expenses incurred by such
Issuing Lender in connection with such payment, not later than 12:00 Noon, New York City time, on (i) the Business Day that the Borrower receives notice of such draft, if such notice is
received on such day prior to 10:00 A.M., New York City time, or (ii) if clause (i) above does not apply, the Business Day 


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immediately
following the day that the Borrower receives such notice. Each such payment shall be made to such Issuing Lender at its address for notices referred to herein in the currency in which such
Letter of Credit is denominated (except that, in the case of any Letter of Credit denominated in CDN Dollars, in the event that such payment is not made to such Issuing Lender within three Business
Days of when such payment is due, upon notice by such Issuing Lender to the Borrower, such payment shall be made in US Dollars, in an amount equal to the US Dollar Amount of the amount of such
payment) and in immediately available funds. Any conversion by any Issuing Lender of any payment to be made by the Borrower in respect of any Letter of Credit denominated in CDN Dollars into US
Dollars in accordance with this Section 3.5 shall be presumptively correct in the absence of manifest error; provided, that upon the request of
the Borrower or any Lender, such Issuing Lender shall provide to the Borrower or such Lender a certificate including reasonably detailed information as to the calculation of such conversion. Interest
shall be payable on any such amounts from the date on which the relevant draft is paid until payment in full at the rate set forth in (x) until the Business Day next succeeding the date of the
relevant notice, Section 2.14(b) and (y) thereafter, Section 2.14(c). 



        3.6    Obligations Absolute.    The Borrower's obligations under this Section 3 shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment that the Borrower may have or have had against any Issuing Lender, any beneficiary of a
Letter of Credit or any other Person. The Borrower also agrees with each Issuing Lender that such Issuing Lender shall not be responsible for, and the Borrower's Reimbursement Obligations under
Section 3.5 shall not be affected by, among other things, the validity or genuineness of documents or of any endorsements thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the Borrower and any beneficiary of any Letter of Credit issued by such Issuing Lender or any other party to which such Letter of Credit may be
transferred or any claims whatsoever of the Borrower against any beneficiary of such Letter of Credit or any such transferee. No Issuing Lender shall be liable for any error, omission, interruption or
delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit, except for errors or omissions found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such
Issuing Lender. The Borrower agrees that any action taken or omitted by an Issuing Lender under or in connection with any Letter of Credit or the related drafts or documents, if done in the absence of
gross negligence or willful misconduct, and in accordance with the duties and obligations expressly set forth herein, shall be binding on the Borrower and shall not result in any liability of such
Issuing Lender to the Borrower. 


        3.7    Letter of Credit Payments.    If any draft shall be presented for payment under any Letter of Credit, the
Issuing Lender that issued such Letter of Credit shall promptly notify the Borrower of the date and amount thereof. The responsibility of an Issuing Lender to the Borrower in connection with any draft
presented for payment under any Letter of Credit issued by such Issuing Lender shall, in addition to any payment obligation expressly provided for in such Letter of Credit, be limited to determining
that the documents (including each draft) delivered under such Letter of Credit in connection with such presentment are substantially in conformity with such Letter of Credit. 


        3.8    Applications.    To the extent that any provision of any Application related to any Letter of Credit is
inconsistent with the provisions of this Section 3, the provisions of this Section 3 shall apply. 


33








   SECTION 4. REPRESENTATIONS AND WARRANTIES  


        To induce the Administrative Agent and the Lenders to enter into this Agreement and to make the Loans and issue or participate in the Letters of Credit, the
Borrower hereby represents and warrants to the Administrative Agent and each Lender that: 



        4.1    Financial Condition.    (a) The unaudited pro forma  consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at June 27, 2004 (including the notes thereto) (the "Pro Forma
Balance Sheet"), copies of which have heretofore been furnished to each Lender, has been prepared giving effect (as if such events had occurred on such date) to (i) the
consummation of the Acquisition, (ii) the Loans to be made on the Closing Date and the use of proceeds thereof and (iii) the payment of fees and expenses in connection with the
foregoing. The Pro Forma Balance Sheet has been prepared based on information believed by the Borrower to be the best information available to the Borrower as of the date of delivery thereof, and
presents fairly in all material respects on a pro forma basis the estimated financial position of Borrower and its consolidated Subsidiaries as at
June 27, 2004, assuming that the events specified in the preceding sentence had actually occurred at such date. 


        (b)   The
audited consolidated balance sheets of the Borrower as at December 30, 2001, December 29, 2002 and December 30, 2003, and the related
consolidated statements of income and of cash flows for the fiscal years ended on such dates, reported on by and accompanied by an unqualified report from Deloitte & Touche LLP (or, in the case
of such December 31, 2001 balance sheet and such related financial statements for the fiscal year then ended, Arthur Andersen LLP), present fairly in all material respects the consolidated
financial condition of the Borrower as at such dates, and the consolidated results of its operations and its consolidated cash flows for the respective fiscal years then ended. The audited
consolidated balance sheets of the Target as at December 31, 2002 and December 31, 2003, and the related consolidated statements of income and of cash flows for the fiscal years ended on
such dates, reported on and accompanied by an unqualified report from PriceWaterhouseCoopers LLP, present fairly in all material respects the consolidated financial condition of the Target as at such
dates, and the consolidated results of its operations and its consolidated cash flows for the respective fiscal years then ended. The unaudited consolidated balance sheet of each of the Borrower as at
June 27, 2004 and, to the best of the Borrower's knowledge and belief, the Target as at June 30, 2004, and the related unaudited consolidated statements of income and cash flows for the
six-month period ended on such date, present fairly in all material respects the consolidated financial condition of the Borrower and the Target, respectively, as at such dates, and the
consolidated results of its operations and its consolidated cash flows for the six-month period then ended (subject to normal year-end audit adjustments). All such financial
statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by the aforementioned
firms of accountants and disclosed therein). As of December 29, 2003, the Group Members taken as a whole had no material Guarantee Obligations, contingent liabilities and liabilities for taxes,
or any long-term leases or unusual forward or long-term commitments, including any interest rate or foreign currency swap or exchange transaction or other obligation in respect
of derivatives, that were not reflected in the most recent audited financial statements referred to in this paragraph or in the notes thereto. During the period from December 29, 2003 to and
including the Closing Date there has been no Disposition by any Group Member of any material part of its business or property. 


        4.2    No Change.    Since December 29, 2003, there has been no development or event that has had or could
reasonably be expected to have a Material Adverse Effect. 


        4.3    Existence; Compliance with Law.    Each Group Member (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the power and authority, and the legal right, to own and operate its property, to lease the property it operates as
lessee and to conduct the business in which it is currently engaged, (c) is duly qualified as a foreign 


34







 



corporation
or other organization and in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such
qualification and where the failure to be so qualified and in good standing could not reasonably be expected to have a Material Adverse Effect and (d) is in compliance with all Requirements of
Law except to the extent that the failure to comply therewith could not, in the aggregate, reasonably be expected to have a Material Adverse Effect. 


        4.4    Power; Authorization; Enforceable Obligations.    Each Loan Party has the power and authority, and the legal
right, to make, deliver and perform the Loan Documents to which it is a party and, in the case of the Borrower, to obtain extensions of credit hereunder. Each Loan Party has taken all necessary
organizational action to authorize the execution, delivery and performance of the Loan Documents to which it is a party and, in the case of the Borrower, to authorize the extensions of credit on the
terms and conditions of this Agreement. No consent or authorization of, filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person is required in
connection with the Acquisition and the extensions of credit hereunder or with the execution, delivery, performance, validity or enforceability of this Agreement or any of the Loan Documents, except
(i) consents, authorizations, filings and notices described in Schedule 4.4, which consents, authorizations, filings and notices have been obtained or made and are in full force and
effect and (ii) the filings referred to in Section 4.19. Each Loan Document has been duly executed and delivered on behalf of each Loan Party party thereto. This Agreement constitutes,
and each other Loan Document upon execution will constitute, a legal, valid and binding obligation of each Loan Party party thereto, enforceable against each such Loan Party in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or at law). 


        4.5    No Legal Bar.    The execution, delivery and performance of this Agreement and the other Loan Documents, the
issuance of Letters of Credit, the borrowings hereunder and the use of the proceeds thereof will not violate any Requirement of Law or any material Contractual Obligation of any Group Member and will
not result in, or require, the creation or imposition of any Lien on any of their respective properties or revenues pursuant to any Requirement of Law or any such Contractual Obligation (other than
the Liens created by the Security Documents). No Requirement of Law or Contractual Obligation applicable to the Borrower or any of its Subsidiaries could reasonably be expected to have a Material
Adverse Effect. 


        4.6    Litigation.    No litigation, investigation or proceeding of or before any arbitrator or Governmental Authority
is pending or, to the knowledge of the Borrower, threatened by or against any Group Member or against any of their respective properties or revenues (a) with respect to any of the Loan
Documents or any of the transactions contemplated hereby or thereby, or (b) that could reasonably be expected to have a Material Adverse Effect. 



        4.7    No Default.    No Group Member is in default under or with respect to any of its Contractual Obligations in any
respect that could reasonably be expected to have a Material Adverse Effect. No Default or Event of Default has occurred and is continuing. 


        4.8    Ownership of Property; Liens.    Each Group Member has title in fee simple to, or a valid leasehold interest
in, all its real property, and good title to, or a valid leasehold interest in, all its other property, and none of such property is subject to any Lien except as permitted by Section 7.3. 



        4.9    Intellectual Property.    Each Group Member owns, or is licensed to use, all Intellectual Property necessary
for the conduct of its business as currently conducted, except where, individually or in the aggregate, any failure to own or have licenses for such Intellectual Property could not reasonably be
expected to have a Material Adverse Effect. No claim has been asserted and is pending by any Person challenging or questioning the use of any Intellectual Property or the validity or effectiveness of 


35







 



any
Intellectual Property, nor does the Borrower know of any valid basis for any such claim, except where any such claim could not reasonably be expected to have a Material Adverse Effect. The use of
Intellectual Property by each Group Member does not infringe on the rights of any Person, except where, individually or in the aggregate, any such infringement could not reasonably be expected to have
a Material Adverse Effect. 


        4.10    Taxes.    Each Group Member has filed or caused to be filed all Federal, state and other material tax returns
that are required to be filed and has paid prior to delinquency thereof all taxes shown to be due and payable on said returns or on any assessments made against it or any of its property and all other
taxes, fees or other charges imposed on it or any of its property by any Governmental Authority (other than any the amount or validity of which are currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the relevant Group Member or as to which any failure to pay could not reasonably
be expected to have a Material Adverse Effect). 


        4.11    Federal Regulations.    No part of the proceeds of any Loans, and no other extensions of credit hereunder,
will be used (a) for "buying" or "carrying" any "margin stock" within the respective meanings of each of the quoted terms under Regulation U as now and from time to time hereafter in
effect for any purpose that violates the provisions of the Regulations of the Board or (b) for any purpose that violates the provisions of the Regulations of the Board. If requested by any
Lender or the Administrative Agent, the Borrower will furnish to the Administrative Agent and each Lender a statement to the foregoing effect in conformity with the requirements of FR
Form G-3 or FR Form U-1, as applicable, referred to in Regulation U. 


        4.12    Labor Matters.    Except as, in the aggregate, could not reasonably be expected to have a Material Adverse
Effect: (a) there are no strikes or other labor disputes against any Group Member pending or, to the knowledge the Borrower, threatened; (b) hours worked by and payment made to employees
of each Group Member have not been in violation of the Fair Labor Standards Act or any other applicable Requirement of Law dealing with such matters; and (c) all payments due from any Group
Member on account of employee health and welfare insurance have been paid or accrued as a liability on the books of the relevant Group Member. 


        4.13    ERISA.    Neither a Reportable Event nor an "accumulated funding deficiency" (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred during the five-year period prior to the date on which this representation is made or deemed made with respect
to any Plan, and each Plan has complied with the applicable provisions of ERISA and the Code, except where, individually or in the aggregate, such occurrence or non-compliance has not
resulted and could not reasonably be expected to result in a material liability to the Group Members taken as a whole. No termination of a Single Employer Plan has occurred, and no Lien in favor of
the PBGC or a Plan has arisen, during such five-year period, except where, individually or in the aggregate, such termination or Lien has not resulted and could not reasonably be expected
to result in a material liability to the Group Members taken as a whole. The present value of all accrued benefits under each Single Employer Plan (based on those assumptions used to fund such Plans)
did not, as of the last annual valuation date prior to the date on which this representation is made or deemed made, exceed the value of the assets of such Plan allocable to such accrued benefits by a
material amount. Neither the Borrower nor any Commonly Controlled Entity has had a complete or partial withdrawal from any Multiemployer Plan that has resulted or could reasonably be expected to
result in a material liability under ERISA, and neither the Borrower nor any Commonly Controlled Entity would become subject to any material liability under ERISA if the Borrower or any such Commonly
Controlled Entity were to withdraw completely from all Multiemployer Plans as of the valuation date most closely preceding the date on which this representation is made or deemed made. No such
Multiemployer Plan is in Reorganization or Insolvent. 


36







 



        4.14    Investment Company Act; Other Regulations.    No Loan Party is an "investment company", or a company
"controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended. No Loan Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) that limits its ability to incur Indebtedness. 


        4.15    Subsidiaries.    Except as disclosed to the Administrative Agent by the Borrower in writing from time to time
after the Closing Date, (a) Schedule 4.15 sets forth the name and jurisdiction of incorporation of each Subsidiary and, as to each such Subsidiary, the percentage of each class of
Capital Stock owned by any Loan Party and (b) there are no outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments (other than those granted to employees
or directors and directors' qualifying shares) of any nature relating to any Capital Stock of the Borrower or any Subsidiary, except as created by the Loan Documents. 


        4.16    Use of Proceeds.    The proceeds of the Term Loans shall be used to finance a portion of the Acquisition and
to pay related fees and expenses. The proceeds of the Revolving Loans and the Swingline Loans, and the Letters of Credit, shall be used for general corporate purposes, provided  that no proceeds of any
Revolving Loan shall be used to make any payment of principal of the Convertible Senior Subordinated Debentures if, after giving effect to such payment,
the Borrower's Consolidated Liquidity would be less than $40,000,000. 



        4.17    Environmental Matters.    Except as, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect: 


        (a)   the
facilities and properties owned, leased or operated by any Group Member (the "Properties") do not contain, and have
not previously contained, any Materials of Environmental Concern in amounts or concentrations or under circumstances that constitute or constituted a violation of, or could give rise to liability
under, any Environmental Law; 


        (b)   no
Group Member has received or is aware of any notice of violation, alleged violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to any of the Properties or the business operated by any Group Member (the
"Business"), nor does the Borrower have knowledge or reason to believe that any such notice will be received or is being threatened; 


        (c)   Materials
of Environmental Concern have not been transported or disposed of from the Properties in violation of, or in a manner or to a location that could reasonably be
expected to give rise to liability under, any Environmental Law, nor have any Materials of Environmental Concern been generated, treated, stored or disposed of at, on or under any of the Properties in
violation of, or in a manner that could reasonably be expected to give rise to liability under, any applicable Environmental Law; 


        (d)   no
judicial proceeding or governmental or administrative action is pending or, to the knowledge of the Borrower, threatened, under any Environmental Law to which any
Group Member is or will be named as a party with respect to the Properties or the Business, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders,
or other administrative or judicial requirements outstanding under any Environmental Law with respect to the Properties or the Business; 



        (e)   there
has been no release or threat of release of Materials of Environmental Concern at or from the Properties, or arising from or related to the operations of any Group
Member in connection with the Properties or otherwise in connection with the Business, in violation of or in amounts or in a manner that could reasonably be expected to give rise to liability under
Environmental Laws; 


        (f)    the
Properties and all operations at the Properties are in compliance, and have in the last five years been in compliance, with all applicable Environmental Laws, and
there is no contamination at, 


37







 



under
or about the Properties or violation of any Environmental Law with respect to the Properties or the Business; and 


        (g)   no
Group Member has assumed any liability of any other Person under Environmental Laws. 


        4.18    Accuracy of Information, etc.    No statement or information contained in this Agreement, any other Loan
Document, the Confidential Information Memorandum or any other document, certificate or statement furnished by or on behalf of any Loan Party to the Administrative Agent or the Lenders, or any of
them, for use in connection with the transactions contemplated by this Agreement or the other Loan Documents, contained as of the date such statement, information, document or certificate was so
furnished (or, in the case of the Confidential Information Memorandum, as of the date of this Agreement), any untrue statement of a material fact or omitted to state a material fact necessary to make
the statements contained herein or therein not misleading. The projections and pro forma financial information contained in the materials referenced
above are based upon good faith estimates and assumptions believed by management of the Borrower to be reasonable at the time made, it being recognized by the Lenders that such financial information
as it relates to future events is not to be viewed as fact and that actual results during the period or periods covered by such financial information may differ from the projected results set forth
therein by a material amount. As of the date hereof, the representations and warranties contained in the Acquisition Documentation are true and correct in all material respects. There is no fact known
to any Loan Party that could reasonably be expected to have a Material Adverse Effect that has not been expressly disclosed herein, in the other Loan Documents, in the Confidential Information
Memorandum or in any other documents, certificates and statements furnished to the Administrative Agent and the Lenders for use in connection with the transactions contemplated hereby and by the other
Loan Documents. 


        4.19    Security Documents.    The Guarantee and Collateral Agreement is effective to create in favor of the
Administrative Agent, for the benefit of the Lenders, a legal, valid and enforceable security interest in the Collateral described therein and proceeds thereof. In the case of the Pledged Stock
described in the Guarantee and Collateral Agreement, when stock certificates representing such Pledged Stock are delivered to the Administrative Agent, and in the case of the other Collateral
described in the Guarantee and Collateral Agreement in which a security interest may be perfected by filing a financing statement or other governmental filing, when financing statements and other
filings specified on Schedule 4.19(a) in appropriate form are filed in the offices specified on Schedule 4.19(a), the Guarantee and Collateral Agreement shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral and the proceeds thereof, as security for the Obligations (as defined in the Guarantee
and Collateral Agreement), in each case prior and superior in right to any other Person (except, in the case of Collateral other than Pledged Stock, Liens permitted by Section 7.3). 


        4.20    Solvency.    Each Loan Party is, and after giving effect to the Acquisition and the incurrence of all
Indebtedness and obligations being incurred in connection herewith and therewith, and to all rights of contribution, subrogation and indemnity of the Subsidiary Guarantors, will be and will continue
to be, Solvent. 


        4.21    Senior Indebtedness.    The Obligations constitute "Senior Indebtedness" and "Designated Senior Indebtedness"
of the Borrower under and as defined in the Indenture. 


        4.22    Certain Documents.    The Borrower has delivered to the Administrative Agent a complete and correct copy of
the Acquisition Documentation and the Indenture, including any amendments, supplements or modifications with respect to any of the foregoing. 


38







 
SECTION 5. CONDITIONS PRECEDENT  


        5.1    Conditions to Initial Extension of Credit.    The agreement of each Lender to make the initial extension of
credit requested to be made by it is subject to the satisfaction, prior to or concurrently with the making of such extension of credit on the Closing Date, of the following conditions precedent: 



        (a)    Credit Agreement; Guarantee and Collateral Agreement.    The Administrative Agent shall have received
(i) this Agreement or, in the case of the Lenders, an Addendum, executed and delivered by the Administrative Agent, the Borrower and each Person listed on Schedule 1.1(a),
(ii) the Guarantee and Collateral Agreement, executed and delivered by the Borrower and each Subsidiary Guarantor and (iii) an Acknowledgement and Consent in the form attached to the
Guarantee and Collateral Agreement, executed and delivered by each Issuer (as defined therein), if any, that is not a Loan Party. 


        In
the event that any one or more Persons listed on Schedule 1.1(a) have not executed and delivered an Addendum on the date scheduled to be the Closing Date (each such Person
being referred to herein as a "Non-Executing Person"), the condition referred to in clause (i) above shall nevertheless be deemed satisfied if on such date the Borrower and the
Administrative Agent shall have designated one or more Persons (the "Designated Lenders") to assume, in the aggregate, all of the Commitments that would have been held by the Non-Executing
Persons (subject to each such Designated Lender's consent and its execution and delivery of an Addendum). Schedule 1.1(a) shall automatically be deemed to be amended to reflect the respective
Commitments of the Designated Lenders and the omission of the Non-Executing Persons as Lenders hereunder. 


        (b)    Acquisition, etc.    The following transactions shall have been consummated, in each case on terms and
conditions reasonably satisfactory to the Administrative Agent: 



          (i)  The
acquisition by the Borrower of all of the outstanding equity interests in the Target (the "Acquisition") shall have
been consummated in accordance with the terms of the Merger Agreement (other than the filing of the merger certificate in the Delaware Secretary of State's office, as to which
arrangements satisfactory to the Administrative Agent shall have been made for the filing of such certificate in such office not later than the Business Day immediately following the Closing Date),
for an aggregate purchase price not exceeding $205,000,000 (subject to working capital adjustments as set forth in the Merger Agreement), and no provision of the Merger Agreement shall have been
waived, supplemented or otherwise modified in a manner materially adverse to the interests of the Borrower or the Lenders; and 


         (ii)  (A)
The Administrative Agent shall have received satisfactory evidence that all commitments under the Existing Credit Agreements shall have been terminated and all
amounts thereunder shall have been paid in full and (B) satisfactory arrangements shall have been made for the termination of all Liens granted in connection therewith. 




        (c)    Pro Forma Balance Sheet; Financial Statements.    The Lenders shall have received (i) the Pro Forma
Balance Sheet, (ii) audited consolidated financial statements of (A) the Borrower for the 2001, 2002 and 2003 fiscal years and (B) the Target for the 2002 and 2003 fiscal years
and (iii) unaudited interim consolidated financial statements of each of the Borrower and the Target for each fiscal quarter ended after the date of the latest applicable financial statements
delivered pursuant to clause (ii) of this paragraph as to which such financial statements are available, and such financial statements shall not, in the reasonable judgment of the
Administrative Agent, reflect any material adverse change in the consolidated financial condition of the Borrower and its Subsidiaries, taken as a whole, or the Borrower, the Target and their
respective Subsidiaries, taken as a whole, as reflected in the financial statements or projections contained in the Confidential Information Memorandum. 



39









  



        (d)    Projections.    The Administrative Agent shall have received projections through 2011 that are satisfactory to
it. 


        (e)    Approvals.    All governmental and third party approvals necessary in connection with the Acquisition, the
continuing operations of the Group Members and the transactions contemplated hereby shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired
without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the Acquisition or the financing contemplated hereby. 


        (f)    Lien Searches.    The Administrative Agent shall have received the results of a recent lien search in each of
the jurisdictions where assets of the Loan Parties are located, and such search shall reveal no liens on any of the assets of the Loan Parties except for liens permitted by Section 7.3 or
discharged on or prior to the Closing Date pursuant to documentation satisfactory to the Administrative Agent. 


        (g)    Fees.    The Lenders and the Administrative Agent shall have received all fees required to be paid, and all
expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel), on or before the Closing Date. All such amounts will be paid with proceeds of Loans made
on the Closing Date and will be reflected in the funding instructions given by the Borrower to the Administrative Agent on or before the Closing Date. 



        (h)    Closing Certificate; Certified Certificate of Incorporation; Good Standing Certificates.    The Administrative
Agent shall have received (i) a certificate of each Loan Party, dated the Closing Date, substantially in the form of Exhibit C, with appropriate insertions and attachments, including the
certificate of incorporation of each Loan Party that is a corporation certified by the relevant authority of the jurisdiction of organization of such Loan Party, and (ii) a long form good
standing certificate for each Loan Party from its jurisdiction of organization. 



        (i)    Legal Opinions.    The Administrative Agent shall have received the following executed legal opinions: 



          (i)  the
legal opinion of King & Spalding LLP, counsel to the Borrower and its Subsidiaries, substantially in the form of Exhibit E-1; 


         (ii)  the
legal opinion of Philip A. Theodore, Vice President, General Counsel of the Borrower and its Subsidiaries, substantially in the form of
Exhibit E-2; 


        (iii)  to
the extent consented to by the relevant counsel, each legal opinion, if any, delivered in connection with the Acquisition Agreement, accompanied by a reliance
letter in favor of the Lenders; and 


        (iv)  the
legal opinion of such other special and local counsel as may reasonably be required by the Administrative Agent. 




Each
such legal opinion shall cover such other matters incident to the transactions contemplated by this Agreement as the Administrative Agent may reasonably require. 



        (j)    Pledged Stock; Stock Powers; Pledged Notes.    The Administrative Agent shall have received (i) the
certificates representing the shares of Capital Stock pledged pursuant to the Guarantee and Collateral Agreement, together with an undated stock power for each such certificate executed in blank by a
duly authorized officer of the pledgor thereof, (ii) each promissory note (if any) pledged to the Administrative Agent pursuant to the Guarantee and Collateral Agreement endorsed (without
recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof and (iii) with respect to any Capital Stock of any Foreign Subsidiary pledged pursuant to the
Guarantee and Collateral Agreement, evidence that 



40







 




such
pledge of such Capital Stock has been duly noted, if necessary or appropriate under applicable law, in the transfer or registry records of such Foreign Subsidiary. 


        (k)    Filings, Registrations and Recordings.    Each document (including any Uniform Commercial Code financing
statement) required by the Security Documents or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative
Agent, for the benefit of the Lenders, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (other than with respect to Liens expressly permitted by
Section 7.3), shall be in proper form for filing, registration or recordation. 


        (l)    Insurance.    The Administrative Agent shall have received insurance certificates satisfying the requirements
of Section 5.2(b) of the Guarantee and Collateral Agreement. 




        5.2    Conditions to Each Extension of Credit.    The agreement of each Lender to make any extension of credit
requested to be made by it on any date (including its initial extension of credit) is subject to the satisfaction of the following conditions precedent: 



        (a)    Representations and Warranties.    Each of the representations and warranties made by any Loan Party in or
pursuant to the Loan Documents shall be true and correct in all material respects on and as of such date as if made on and as of such date, except for representations and warranties expressly stated
to relate to a specific earlier date, in which case such representations and warranties were true and correct in all material respects as of such earlier date. 



        (b)    No Default.    No Default or Event of Default shall have occurred and be continuing on such date or after
giving effect to the extensions of credit requested to be made on such date. 


        (c)    Pro Forma Compliance.    If all or any part of the proceeds of such extension of credit are to be used to make
any payment of principal of the Convertible Senior Subordinated Debentures in accordance with Section 4.16, the Borrower and the Subsidiaries shall be in compliance, on a pro forma basis after
giving effect to such extension of credit and such payment, with the covenants contained in Section 7.1 recomputed as at the last day of the most recently ended fiscal quarter of the Borrower
and the Subsidiaries as if such extension of credit and such payment had occurred on the first day of each relevant period for testing such compliance, and the Borrower shall have delivered to the
Administrative Agent an officers' certificate certifying (i) such compliance with the covenants contained in Section 7.1 and (ii) compliance with the Consolidated Liquidity
requirement set forth in Section 4.16. 





Each
borrowing by and issuance of a Letter of Credit on behalf of the Borrower hereunder shall constitute a representation and warranty by the Borrower as of the date of such extension of credit that
the conditions contained in this Section 5.2 have been satisfied. 


SECTION 6. AFFIRMATIVE COVENANTS  


        The Borrower hereby agrees that, so long as the Commitments remain in effect, any Letter of Credit remains outstanding or any Loan or other amount is owing to any
Lender or the Administrative Agent hereunder, the Borrower shall and shall cause each of its Subsidiaries to: 



        6.1    Financial Statements.    Furnish to the Administrative Agent and each Lender: 



        (a)   as
soon as available, but in any event within 90 days after the end of each fiscal year of the Borrower, a copy of the audited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such year and the related audited consolidated statements of income and of cash flows for such year, setting forth in each case in
comparative form the figures for the previous year, reported on without a "going concern" or like qualification 



41







 

or
exception, or qualification arising out of the scope of the audit, by Deloitte & Touche LLP or other independent certified public accountants of nationally recognized standing; and 


        (b)   as
soon as available, but in any event not later than 45 days after the end of each of the first three quarterly periods of each fiscal year of the Borrower, the
unaudited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such quarter and the related unaudited consolidated statements of income and of cash flows for
such quarter and the portion of the fiscal year through the end of such quarter, setting forth in each case in comparative form the figures for the previous year, certified by a Responsible Officer as
being fairly stated in all material respects (subject to normal year-end audit adjustments). 




All
such financial statements shall be complete and correct in all material respects and shall be prepared in reasonable detail and in accordance with GAAP applied (except as approved by such
accountants or officer, as the case may be, and disclosed in reasonable detail therein) consistently throughout the periods reflected therein and with prior periods. 



        6.2    Certificates; Other Information.    Furnish to the Administrative Agent and each Lender (or, in the case of
clause (f), to the relevant Lender): 



        (a)   concurrently
with the delivery of the financial statements referred to in Section 6.1(a), a written statement of the independent certified public accountants
reporting on such financial statements stating that in making the examination necessary therefor no knowledge was obtained of any Default or Event of Default, except as specified in such written
statement (it being understood that such written statement shall be limited to the items that independent certified public accountants are permitted to cover in such written statements pursuant to
their professional standards and customs of the profession); 


        (b)   concurrently
with the delivery of any financial statements pursuant to Section 6.1, (i) a certificate of a Responsible Officer stating that, to the best of
each such Responsible Officer's knowledge, each Loan Party during such period has observed or performed all of its covenants and other agreements, and satisfied every condition contained in this
Agreement and the other Loan Documents to which it is a party to be observed, performed or satisfied by it, and that such Responsible Officer has obtained no knowledge of any Default or Event of
Default, in each case except as specified in such certificate and (ii) in the case of quarterly or annual financial statements, (x) a Compliance Certificate containing all
information and calculations necessary for determining compliance by each Group Member with the provisions of this Agreement referred to therein as of the last day of the fiscal quarter or fiscal year
of the Borrower, as the case may be, and (y) to the extent not previously disclosed to the Administrative Agent, a description of any change in the jurisdiction of organization of any Loan
Party and a list of any material Intellectual Property, or any material registrations of, or applications to register, any Intellectual Property within the United States, in each case acquired by any
Loan Party since the date of the most recent report delivered pursuant to this clause (y) (or, in the case of the first such report so delivered, since the Closing Date); 



        (c)   as
soon as available, and in any event no later than 45 days after the end of each fiscal year of the Borrower, a detailed consolidated budget for the following
fiscal year (including a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year, the related consolidated statements of projected cash
flow, projected changes in financial position and projected income and a description of the underlying assumptions applicable thereto), and, as soon as available, significant revisions, if any, of
such budget and projections with respect to such fiscal year (collectively, the "Projections"), which Projections shall in each case be accompanied by a
certificate of a Responsible Officer stating that such Projections are based on estimates, information and assumptions as set forth therein or otherwise, in each case 



42







 




believed
to be reasonable, and that such Responsible Officer has no reason to believe that such Projections are incorrect or misleading in any material respect; 


        (d)   no
later than 5 Business Days prior to the effectiveness thereof, copies of substantially final drafts of any proposed amendment, supplement, waiver or other
modification with respect to the Indenture or the Acquisition Documentation; 



        (e)   within
five days after the same are sent, copies of all financial statements and reports that the Borrower sends to the holders of any class of its debt securities or
public equity securities and, within five days after the same are filed, copies of all financial statements and reports that the Borrower may make to, or file with, the SEC; and 


        (f)    promptly,
such additional information regarding the operations, business or financial condition of the Group Members as any Lender may from time to time reasonably
request. 




        6.3    Payment of Obligations.    Pay, discharge or otherwise satisfy at or before maturity or before they become
delinquent, as the case may be, all its material obligations of whatever nature, except where the amount or validity thereof is currently being contested in good faith by appropriate proceedings and
reserves in conformity with GAAP with respect thereto have been provided on the books of the relevant Group Member, or where the failure to pay, discharge or otherwise satisfy such obligations could
not reasonably be expected to have a Material Adverse Effect. 



        6.4    Maintenance of Existence; Compliance.    (a)(i) Preserve, renew and keep in full force and effect its
organizational existence and (ii) take all reasonable action to maintain all rights, privileges and franchises necessary or desirable in the normal conduct of its business, except, in each
case, as otherwise permitted by Section 7.4 and except, in the case of clause (ii) above, to the extent that failure to do so could not reasonably be expected to have a Material Adverse
Effect; and (b) comply with all Contractual Obligations and Requirements of Law except to the extent that failure to comply therewith could not, in the aggregate, reasonably be expected to have
a Material Adverse Effect. 


        6.5    Maintenance of Property; Insurance.    (a) Keep all property useful and necessary in its business in
good working order and condition, ordinary wear and tear excepted and (b) maintain with financially sound and reputable insurance companies insurance on all its property in at least such
amounts and against at least such risks (but including in any event public liability, product liability and business interruption) as are usually insured against in the same general area by companies
engaged in the same or a similar business. 


        6.6    Inspection of Property; Books and Records; Discussions.    (a) Keep proper books of records and account
in which full, true and correct entries in conformity with GAAP and all Requirements of Law shall be made of all dealings and transactions in relation to its business and activities and
(b) permit representatives of any Lender (i) to visit and inspect any of its properties and examine and make abstracts from any of its books and records at any reasonable time and as
often as may reasonably be desired, provided that, so long as no Default or Event of Default shall have occurred and be continuing, reasonable prior
written notice thereof shall have been given to the Borrower and such activities shall be conducted without undue interference or interruption of the Group Members' business and operations, and
(ii) to discuss the business, operations, properties and financial and other condition of the Group Members with officers and employees of the Group Members and with their independent certified
public accountants, provided that, so long as no Default or Event of Default shall have occurred and be continuing, any discussions with such
accountants shall be held only after prior written notice to the Borrower and, at the Borrower's election, with the Borrower's participation in such discussions. 



        6.7    Notices.    Promptly give notice to the Administrative Agent and each Lender of: 



        (a)   the
occurrence of any Default or Event of Default; 



43







 

        (b)   any
(i) default or event of default under any Contractual Obligation of any Group Member or (ii) litigation, investigation or proceeding that may exist at
any time between any Group Member and
any Governmental Authority, that in either case, if not cured or if not dismissed or terminated, as the case may be, could reasonably be expected to have a Material Adverse Effect; 


        (c)   any
litigation or proceeding affecting any Group Member (i) in which the amount of actual damages sought from such Group Member is $5,000,000 or more and not
covered by insurance, (ii) in which material injunctive or similar relief is sought or (iii) which relates to any Loan Document; 


        (d)   the
following events, as soon as possible and in any event within 30 days after the Borrower knows or has reason to know thereof: (i) the occurrence of any
Reportable Event with respect to any Plan, a failure to make any required contribution to a Plan, the creation of any Lien in favor of the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the institution of proceedings or the taking of any other action by the PBGC or the Borrower or any Commonly Controlled Entity or
any Multiemployer Plan with respect to the withdrawal from, or the termination, Reorganization or Insolvency of, any Plan; and 


        (e)   any
development or event that has had or could reasonably be expected to have a Material Adverse Effect. 




Each
notice pursuant to this Section 6.7 shall be accompanied by a statement of a Responsible Officer setting forth details of the occurrence referred to therein and stating what action the
relevant Group Member proposes to take with respect thereto. 


        6.8    Environmental Laws.    (a) Comply in all material respects with, and ensure compliance in all material
respects by all tenants and subtenants, if any, with, all applicable Environmental Laws, and obtain and comply in all material respects with and maintain, and ensure that all tenants and subtenants
obtain and comply in all material respects with and maintain, any and all licenses, approvals, notifications, registrations or permits required by applicable Environmental Laws. For purposes of this
paragraph (a), noncompliance by the Borrower or any Subsidiary with any applicable Environmental Law shall be deemed not to constitute a breach of this covenant provided that, upon learning of
any actual or suspected noncompliance, the Borrower or such Subsidiary shall promptly undertake all reasonable efforts to achieve compliance, and provided further that, in any case, such
noncompliance, and any other noncompliance with Environmental Laws, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. 


        (b)   Conduct
and complete all investigations, studies, sampling and testing, and all remedial, removal and other actions required under Environmental Laws and promptly comply
in all material respects with all lawful orders and directives of all Governmental Authorities regarding Environmental Laws; provided, however, that no violation of this paragraph (b) shall be
deemed to have occurred if the Borrower or any Subsidiary promptly challenges in good faith any such order or directive of any Governmental Authority in a manner consistent with all applicable
Environmental Laws and pursues such challenge or challenges diligently, and the pendency of such challenges, in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. 


        6.9    Additional Collateral, etc.    (a) With respect to any property acquired after the Closing Date by any
Group Member (other than (w) any real property, (x) any property described in paragraph (b) or (c) below, (y) any property subject to a Lien expressly permitted by
Section 7.3(g) or 7.3(j) and (z) property acquired by any Excluded Foreign Subsidiary or Excluded Domestic Subsidiary) as to which the Administrative Agent, for the benefit of the
Lenders, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and 


44







 



Collateral
Agreement or such other documents as the Administrative Agent deems necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a security interest in such
property and (ii) take all actions necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a perfected first priority security interest in such property
(subject to such exceptions as are expressly permitted by the Guarantee and Collateral Agreement), including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be
required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent. 


        (b)   With
respect to any new Domestic Subsidiary (other than an Excluded Domestic Subsidiary) created or acquired after the Closing Date by any Group Member (which, for the
purposes of this paragraph (c), shall include any existing Domestic Subsidiary that ceases to be an Excluded Domestic Subsidiary), promptly (i) execute and deliver to the Administrative
Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a
perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by any Group Member, (ii) deliver to the Administrative Agent the certificates representing
such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Group Member, (iii) cause such new Subsidiary (A) to
become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or advisable to grant to the Administrative Agent for the benefit of the Lenders a perfected first
priority security interest in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing
statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the
Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative
Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent. 


        (c)   With
respect to any new Excluded Domestic Subsidiary created or acquired after the Closing Date by any Group Member, unless such actions are prohibited by the terms of
the organizational documents or other Contractual Obligations of such Group Member, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral
Agreement as the Administrative Agent deems necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a perfected first priority security interest in the Capital
Stock of such new Subsidiary that is owned by any Group Member, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated stock powers, in
blank, executed and delivered by a duly authorized officer of the relevant Group Member and (iii) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. 



        (d)   With
respect to any new Foreign Subsidiary created or acquired after the Closing Date by any Group Member (other than by any Group Member that is a Foreign Subsidiary),
promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by any such Group Member (provided that in
no event shall more than 66% of the total outstanding voting Capital Stock of any Excluded Foreign Subsidiary be required to be so pledged), (ii) deliver to the Administrative Agent the
certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Group Member, and take such other action
as may be necessary or, in the opinion of the 


45







 



Administrative
Agent, desirable to perfect the Administrative Agent's security interest therein, and (iii) if requested by the Administrative Agent, deliver to the Administrative Agent legal
opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. 



        6.10    Further Assurances.    At the request of the Administrative Agent, execute any and all further documents,
financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements and other documents), which may be required under any
applicable law, or which the Administrative Agent may otherwise reasonably request, to effectuate the transactions contemplated by the Loan Documents or to grant, preserve, protect or perfect the
Liens created or intended to be created by the Security Documents or the validity or intended priority of any such Lien, all at the expense of the Loan Parties. 



        6.11    OFAC and BSA Compliance.    (a) Ensure that no person who owns a controlling interest in or otherwise
controls the Borrower or any Subsidiary is or shall be listed on the Specially Designated Nationals and Blocked Person List or other similar lists maintained by the Office of Foreign Assets Control
("OFAC"), the Department of the Treasury, or included in any Executive Orders, (b) not use or permit the use of the proceeds of the Loans to
violate any of the foreign asset control regulations of
OFAC or any enabling statute or Executive Order relating thereto, and (c) comply with any Bank Secrecy Act laws and regulations, as amended, applicable to any of them. 


SECTION 7. NEGATIVE COVENANTS  


        The Borrower hereby agrees that, so long as the Commitments remain in effect, any Letter of Credit remains outstanding or any Loan or other amount is owing to any
Lender or the Administrative Agent hereunder, the Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly: 


        7.1    Financial Condition Covenants.    



        (a)    Consolidated Leverage Ratio.    Permit the Consolidated Leverage Ratio as at the last day of any period of four
consecutive fiscal quarters of the Borrower ending with any fiscal quarter set forth below to exceed the ratio set forth below opposite such fiscal quarter: 



	Fiscal Quarter
	 	Consolidated

Leverage Ratio

	Q4 2004 - Q2 2005	 	4.50:1.00
	Q3 2005 - Q3 2006	 	4.00:1.00
	Q4 2006 and thereafter	 	3.50:1.00






        (b)    Consolidated Fixed Charge Coverage Ratio.    Permit the Consolidated Fixed Charge Coverage Ratio for any period
of four consecutive fiscal quarters of the Borrower ending with any fiscal quarter set forth below to be less than the ratio set forth below opposite such fiscal quarter: 



	Fiscal Quarter
	 	Consolidated Fixed Charge

Coverage Ratio

	Q4 2004 - Q3 2005	 	2.00:1.00
	Q4 2005 - Q3 2006	 	2.50:1.00
	Q4 2006 and thereafter	 	3.00:1.00






;
provided, that for the purposes of determining the ratio described above for any periods that include the fiscal quarters of the Borrower ending
March 31, 2004, June 30, 2004 or September 30, 2004, Consolidated Fixed Charges for such fiscal quarters shall be deemed to equal $1,724,600, $1,365,726 and $2,234,643,
respectively. 


46







 



        (c)    Consolidated Senior Debt Ratio.    Permit the Consolidated Senior Debt Ratio for any period of four consecutive
fiscal quarters of the Borrower to exceed 2.50:1.00. 


        7.2    Indebtedness.    Create, issue, incur, assume, become liable in respect of or suffer to exist any Indebtedness,
except: 



        (a)   Indebtedness
of any Loan Party pursuant to any Loan Document; 


        (b)   Indebtedness
of the Borrower to any Subsidiary and of any Subsidiary Guarantor to the Borrower or any other Subsidiary; 


        (c)   Guarantee
Obligations by the Borrower or any of its Subsidiaries of obligations of any Subsidiary Guarantor; 


        (d)   Indebtedness
outstanding on the date hereof and listed on Schedule 7.2(d) and any refinancings, refundings, replacements, renewals or extensions thereof, in whole
or in part (without increasing, or shortening the maturity of, the principal amount thereof); 



        (e)   Indebtedness
(including, without limitation, Capital Lease Obligations) incurred after the date hereof to finance the acquisition, construction or improvements of fixed
or capital assets (whether unsecured or secured by Liens permitted by Section 7.3(g)) in an aggregate principal amount not to exceed $10,000,000 at any one time outstanding, provided that any
such Indebtedness is incurred not later than 90 days following such acquisition or the completion of such construction or improvments and any refinancings, refundings, replacements, or renewals
or extensions thereof, in whole or in part (without increasing, or shortening the maturity of, the principal amount thereof); 



        (f)    Indebtedness
(i) of any Person that becomes a Subsidiary after the date hereof or (ii) assumed by the Borrower or any Subsidiary in connection with any
acquisition of assets, in each case in a transaction expressly permitted by this Agreement, provided that (A) such Indebtedness exists at the
time such Person becomes a Subsidiary, or such assets are acquired, and is not created in contemplation of or in connection with such Person becoming a Subsidiary or in connection with such
acquisition, as the case may be, and (B) the aggregate principal amount of all such Indebtedness shall not exceed $10,000,000 at any one time outstanding; in each case together with any
refinancings, refundings, replacements, renewals or extensions thereof, in whole or in part (without increasing, or shortening the maturity of, the principal amount thereof); 


        (g)   (i) Indebtedness
of the Borrower in respect of the Convertible Senior Subordinated Debentures in an aggregate principal amount not to exceed $130,000,000 and any
refinancings, refundings or replacements thereof (to the extent the proceeds of such refinancings, refundings or replacements are applied directly to repay principal of the Convertible Senior
Subordinated Debentures), in whole or in part (without increasing, or shortening the maturity of, any principal amount thereof), provided that the
obligations of any Loan Party in respect of the Indebtedness incurred in connection with any such refinancings are subordinated on terms not less favorable in any material respect to holders of
"Senior Indebtedness" as the obligations of the Borrower in respect of the Convertible Senior Subordinated Debentures and (ii) Guarantee Obligations of any Subsidiary Guarantor in respect of
such Indebtedness, provided that such Guarantee Obligations are subordinated on terms not less favorable in any material respect to holders of "Senior
Indebtedness" as the obligations of the Borrower in respect of the Convertible Senior Subordinated Debentures; 


        (h)   Indebtedness
of any Subsidiary Non-Guarantor to the Borrower or any other Subsidiary, and Guarantee Obligations of the Borrower or any Subsidiary in respect
of obligations of any Subsidiary Non-Guarantor, in each case (without duplication) constituting Investments permitted by Section 7.7; 



47









  



        (i)    Indebtedness
of the Borrower or any Subsidiary in respect of workers' compensation claims (and related letters of credit), self-insurance obligations,
performance bonds, surety appeal or similar bonds and completion guarantees provided by the Borrower and the Subsidiaries in the ordinary course of their business; 



        (j)    Indebtedness
in an aggregate principal amount not exceeding $5,000,000 at any time outstanding in respect of lines of credit extended to Foreign Subsidiaries; and 


        (k)   Indebtedness
of the Borrower subordinate to the payment of the Obligations on terms and conditions reasonably satisfactory to the Administrative Agent in an aggregate
principal amount not to exceed $25,000,000 at any time outstanding; and 


        (l)    additional
Indebtedness of the Borrower or any of its Subsidiaries in an aggregate principal amount (for the Borrower and all Subsidiaries) not to exceed $10,000,000 at
any one time outstanding. 




        7.3    Liens.    Create, incur, assume or suffer to exist any Lien upon any of its property, whether now owned or
hereafter acquired, except: 



        (a)   Liens
for taxes not yet due or that are being contested in good faith by appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of the Borrower or its Subsidiaries, as the case may be, in conformity with GAAP; 



        (b)   carriers',
warehousemen's, mechanics', materialmen's, repairmen's or other like Liens arising in the ordinary course of business that are not overdue for a period of
more than 60 days or that are being contested in good faith by appropriate proceedings; 


        (c)   pledges
or deposits in connection with workers' compensation, unemployment insurance and other social security legislation; 


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


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


        (f)    Liens
in existence on the date hereof listed on Schedule 7.3(f), securing Indebtedness permitted by Section 7.2(d), and Liens securing any refinancings,
refundings, replacement, renewals or extensions thereof, in whole or in part, provided that no such Lien is spread to cover any additional property
after the Closing Date and that the amount of Indebtedness secured thereby is not increased; 


        (g)   Liens
securing Indebtedness of the Borrower or any other Subsidiary incurred pursuant to Section 7.2(e) provided  that (i) such Liens shall be created within 30 days after such acquisition or
the completion of such construction or improvement, (ii) such Liens do not at
any time encumber any property other than the property so acquired, constructed, or improved, and (iii) the amount of Indebtedness secured thereby is not increased; 


        (h)   Liens
created pursuant to the Security Documents; 


        (i)    any
interest or title of a lessor under any lease entered into by the Borrower or any other Subsidiary in the ordinary course of its business and covering only the
assets so leased; 


        (j)    any
Lien existing on any property or asset prior to the acquisition thereof by the Borrower or any Subsidiary or existing or any property or asset of any Person that
becomes a 



48







 




Subsidiary
after the Closing Date prior to the time such Person becomes a subsidiary; provided that (x) such Lien is not created in contemplation
of or in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (y) such Lien shall not apply to any other property or assets of the Borrower or any
Subsidiary, and (z) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a subsidiary, as the case may be, and any
refinancings, refundings, replacements, renewals or extensions thereof, in whole or in part; 



        (k)   Liens
in respect of Indebtedness permitted by Section 7.2(j), provided that the assets subject to such Liens are not located in the United States; and 


        (l)    Liens
not otherwise permitted by this Section so long as neither (i) the aggregate outstanding principal amount of the obligations secured thereby nor
(ii) the aggregate fair market value (determined as of the date such Lien is incurred) of the assets subject thereto exceeds (as to the Borrower and all Subsidiaries) $10,000,000 at any one
time. 




        7.4    Fundamental Changes.    Enter into any merger, consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), or Dispose of all or substantially all of its property or business, except that: 



        (a)   any
Subsidiary of the Borrower may be merged or consolidated with or into the Borrower (provided that the Borrower shall
be the continuing or surviving corporation) or with or into any Wholly Owned Subsidiary Guarantor (provided that the Wholly Owned Subsidiary Guarantor
shall be the continuing or surviving corporation); 


        (b)   any
Non-Guarantor Subsidiary of the Borrower may be merged or consolidated with or into another Non-Guarantor Subsidiary of the Borrower; 


        (c)   any
Subsidiary of the Borrower may Dispose of any or all of its assets (i) to the Borrower or any Wholly Owned Subsidiary Guarantor (upon voluntary liquidation,
dissolution or otherwise) or (ii) pursuant to a Disposition permitted by Section 7.5; 



        (d)   any
Non-Guarantor Subsidiary of the Borrower may Dispose of any or all of its assets to another Non-Guarantor Subsidiary of the Borrower; and 


        (e)   any
Investment expressly permitted by Section 7.7 and any Disposition permitted by Section 7.5 may be structured as a merger, consolidation or
amalgamation. 




        7.5    Disposition of Property.    Dispose of any of its property, whether now owned or hereafter acquired, or, in the
case of any Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock to any Person, except: 



        (a)   the
Disposition of surplus, obsolete or worn out property in the ordinary course of business; 


        (b)   the
sale of inventory in the ordinary course of business; 


        (c)   Dispositions
permitted by clause (i) of Section 7.4(c); 


        (d)   the
sale or issuance of any Subsidiary's Capital Stock to the Borrower or any Subsidiary Guarantor; 


        (e)   the
Disposition of Cash Equivalents; 


        (f)    Dispositions
constituting Investments permitted pursuant to Section 7.7 and Dispositions constituting Restricted Payments permitted pursuant to
Section 7.6; and 


        (g)   the
Disposition of other property having a fair market value not to exceed $15,000,000 in the aggregate for any fiscal year of the Borrower. 



49







 





        7.6    Restricted Payments.    Declare or pay any dividend (other than dividends payable solely in Capital Stock of
the Person making such dividend) on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any Capital Stock of any Group Member, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or
property or in obligations of any Group Member (collectively, "Restricted Payments"), except: 



        (a)   (i) any
Subsidiary may make Restricted Payments to the Borrower or any Subsidiary Guarantor and (ii) any Subsidiary of a Subsidiary
Non-Guarantor may make Restricted Payments to such Subsidiary Non-Guarantor; 


        (b)   the
Borrower may repurchase the Borrower's common stock or common stock options from present or former directors, officers or employees of the Borrower or any of its
Subsidiaries upon the death, disability or termination of employment of such officer or employee, provided that the aggregate amount of payments under this subsection (b) subsequent to the
Closing Date (net of proceeds received by the Borrower subsequent to the Closing Date in connection with the resale of such common stock or common stock options) shall not exceed $5,000,000; and 


        (c)   so
long as no Default or Event of Default exists, the Borrower may repurchase the Borrower's common stock subsequent to the Closing Date in an aggregate amount not to
exceed $15,000,000. 




        7.7    Investments.    On or after the Closing Date, make any advance, loan, extension of credit (by way of guaranty
or otherwise) or capital contribution to, or purchase any Capital Stock, bonds, notes, debentures or other debt securities of, or any assets constituting a business unit of, or make any other
investment in, any Person (all of the foregoing, "Investments"), except: 



        (a)   extensions
of trade credit in the ordinary course of business; 


        (b)   Investments
in Cash Equivalents; 


        (c)   Guarantee
Obligations permitted by Section 7.2; 


        (d)   loans
and advances to employees of any Group Member in the ordinary course of business (including for travel, entertainment and relocation expenses) in an aggregate
amount for all Group Members not to exceed $1,000,000 at any one time outstanding; 


        (e)   the
Acquisition; 


        (f)    Investments
in assets useful in the business of the Borrower and its Subsidiaries made by the Borrower or any of its Subsidiaries with the proceeds of any Reinvestment
Deferred Amount; 


        (g)   intercompany
Investments by any Group Member in the Borrower or any Person that, prior to such investment, is a Subsidiary Guarantor or that is an Excluded Domestic
Subsidiary that is becoming a Subsidiary Guarantor at the time such Investment is made; 


        (h)   other
Investments constituting Permitted Business Acquisitions in an aggregate amount (valued at cost) not to exceed $50,000,000 in any calendar year; 


        (i)    intercompany
Investments made by any Subsidiary Non-Guarantor in any other Subsidiary Non-Guarantor; 



        (j)    intercompany
Investments by the Borrower and the Subsidiary Guarantors in any Subsidiary Non-Guarantors in an aggregate amount (valued at cost) not to exceed
$10,000,000 at any time outstanding; 


        (k)   any
Investments received as non-cash consideration for sales, transfers, leases and other Dispositions permitted by Section 7.5 not to exceed
$10,000,000 at any time outstanding; 



50







 




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


        (m)  in
addition to Investments otherwise expressly permitted by this Section 7.7, Investments by the Borrower or any of its Subsidiaries in an aggregate amount
(valued at cost) not to exceed $10,000,000 at any time outstanding. 




        7.8    Optional Payments and Modifications of Certain Debt Instruments.    (a) Make or offer to make any
optional or voluntary payment, prepayment, repurchase or redemption of or otherwise optionally or voluntarily defease or segregate funds with respect to the Convertible Senior Subordinated Debentures;
(b) amend, modify, waive or otherwise change, or consent or agree to any amendment, modification, waiver or other change to, any of the terms of the Convertible Senior Subordinated Debentures
(other than any such amendment, modification, waiver or other change that (i) would extend the maturity or reduce the amount of any payment of principal thereof or reduce the rate or extend any
date for payment of interest thereon and (ii) does not involve the payment of a consent fee) that has not been approved by the Administrative Agent; (c) amend, modify, waive or otherwise
change, or consent or agree to any amendment, modification, waiver or other change to, any of the terms of any preferred stock (other than any such amendment, modification, waiver or other change that
(i) would extend the scheduled redemption date or reduce the amount of any scheduled redemption payment or reduce the rate or extend any date for payment of dividends thereon and
(ii) does not involve the payment of a consent fee); or (d) designate any Indebtedness (other than obligations of the Loan Parties pursuant to the Loan Documents) as "Designated Senior
Indebtedness" (or any other defined term having a similar purpose) for the purposes of the Indenture. 


        7.9    Transactions with Affiliates.    Enter into any transaction, including any purchase, sale, lease or exchange of
property, the rendering of any service or the payment of any management, advisory or similar fees, with any Affiliate (other than the Borrower or any Subsidiary) unless such transaction is
(a) otherwise permitted under this Agreement, (b) in the ordinary course of business of the relevant Group Member, and (c) upon fair and reasonable terms not materially less
favorable to the relevant Group Member than it would obtain in a comparable arm's length transaction with a Person that is not an Affiliate. 


        7.10    Sales and Leasebacks.    Enter into any arrangement with any Person providing for the leasing by any Group
Member of real or personal property that has been or is to be sold or transferred by such Group Member to such Person or to any other Person to whom funds have been or are to be advanced by such
Person on the security of such property or rental obligations of such Group Member, other than any such transaction between Group Members where the sale or transfer is otherwise permitted pursuant to
Section 7.4. 


        7.11    Swap Agreements.    Enter into any Swap Agreement, except (a) Swap Agreements entered into to hedge or
mitigate risks to which the Borrower or any Subsidiary has actual exposure (other than those in respect of Capital Stock or the Convertible Senior Subordinated Debentures) and (b) Swap
Agreements entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any
interest-bearing liability or investment of the Borrower or any Subsidiary. 



        7.12    Changes in Fiscal Periods.    Permit a change in the Borrower's method of determining fiscal years or fiscal
quarters. 


        7.13    Negative Pledge Clauses.    Enter into or suffer to exist or become effective any agreement that prohibits or
limits the ability of any Group Member to create, incur, assume or suffer to exist any Lien upon any of its property or revenues, whether now owned or hereafter acquired, to secure its obligations
under the Loan Documents to which it is a party other than (a) this Agreement and the 


51







 



other
Loan Documents, (b) any agreements governing any purchase money Liens or Capital Lease Obligations otherwise permitted hereby (in which case, any prohibition or limitation shall only be
effective against the assets financed thereby), (c) any document governing Indebtedness containing customary prohibitions and limitations (in the reasonable judgment of the Borrower) so long as
such prohibitions or limitations do not prevent, impair or impede the creation of any Liens in favor of the Lenders under the Loan Documents, (d) agreements relating to any Disposition
permitted pursuant to Section 7.5, provided that such prohibitions and limitations apply only to the property to be sold, and (e) leases and other agreements containing customary
provisions prohibiting or limiting the assignment thereof. 


        7.14    Clauses Restricting Subsidiary Distributions.    Enter into or suffer to exist or become effective any
consensual encumbrance or restriction on the ability of any Subsidiary of the Borrower to (a) make Restricted Payments in respect of any Capital Stock of such Subsidiary held by, or pay any
Indebtedness owed to, the Borrower or any other Subsidiary of the Borrower, (b) make loans or advances to, or other Investments in, the Borrower or any other Subsidiary of the Borrower or
(c) transfer any of its assets to the Borrower or any other Subsidiary of the Borrower, except for such encumbrances or restrictions existing under or by reason of (i) any restrictions
existing under the Loan Documents or the Indenture and (ii) any restrictions with respect to a Subsidiary imposed pursuant to
an agreement that has been entered into in connection with the Disposition of all or substantially all of the Capital Stock or assets of such Subsidiary. 


        7.15    Lines of Business.    Engage to any material extent in any business, either directly or through any
Subsidiary, except for those businesses in which the Borrower and its Subsidiaries are engaged on the date of this Agreement (after giving effect to the Acquisition) or that are reasonably related or
incidental thereto. 


        7.16    Amendments to Acquisition Documents.    (a) Amend, supplement or otherwise modify (pursuant to a waiver
or otherwise) the terms and conditions of the indemnities and licenses furnished to the Borrower or any of its Subsidiaries pursuant to the Acquisition Documentation such that after giving effect
thereto such indemnities or licenses shall be materially less favorable to the interests of the Loan Parties or the Lenders with respect thereto or (b) otherwise amend, supplement or otherwise
modify the terms and conditions of the Acquisition Documentation or any such other documents except for any such amendment, supplement or modification that (i) becomes effective after the
Closing Date and (ii) could not reasonably be expected to have a Material Adverse Effect. 


SECTION 8. EVENTS OF DEFAULT  


        If any of the following events shall occur and be continuing: 



        (a)   the
Borrower shall fail to pay any principal of any Loan or Reimbursement Obligation when due in accordance with the terms hereof; or the Borrower shall fail to pay any
interest on any Loan or Reimbursement Obligation, or any other amount payable hereunder or under any other Loan Document, within five days after any such interest or other amount becomes due in
accordance with the terms hereof; or 


        (b)   any
representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document or that is contained in any certificate, document or financial
or other statement furnished by it at any time under or in connection with this Agreement or any such other Loan Document shall prove to have been inaccurate in any material respect on or as of the
date made or deemed made; or 


        (c)   any
Loan Party shall default in the observance or performance of any agreement contained in clause (i) or (ii) of Section 6.4(a) (with respect to
the Borrower only), Section 6.7(a) 



52







 




or
Section 7 of this Agreement or Sections 5.5 and 5.7(b) of the Guarantee and Collateral Agreement; or 


        (d)   any
Loan Party shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Document (other than as provided in
paragraphs (a) through (c) of this Section), and such default shall continue unremedied for a period of 30 days after written notice to the Borrower from the Administrative Agent
or the Required Lenders; or 


        (e)   any
Group Member shall (i) default in making any payment of any principal of any Indebtedness (including any Guarantee Obligation, but excluding the Loans) on the
scheduled or original due date with respect thereto; or (ii) default in making any payment of any interest on any such Indebtedness beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created; or (iii) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or
contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause, with the giving of notice if required, such Indebtedness to
become due prior to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable; provided, that
a default, event or condition described in clause (i), (ii) or (iii) of this paragraph (e) shall not at any time constitute an Event of Default unless, at such time, one or
more defaults, events or conditions of the type described in clauses (i), (ii) and (iii) of this paragraph (e) shall have occurred and be continuing with respect to Indebtedness
the outstanding principal amount of which exceeds in the aggregate $10,000,000; or 


        (f)    (i) any
Group Member shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver,
trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or any Group Member shall make a general assignment for the benefit of its creditors;
or (ii) there shall be commenced against any Group Member any case, proceeding or other action of a nature referred to in clause (i) above that (A) results in the entry of an
order for relief or any such adjudication or appointment or (B) remains undismissed or undischarged for a period of 60 days; or (iii) there shall be commenced against any Group
Member any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the
entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) any Group Member
shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or
(iii) above; or (v) any Group Member shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or 


        (g)   (i) any
Person shall engage in any "prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA), whether or not waived, shall exist with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of any Group Member or any Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee appointed,
or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or 



53







 




appointment
of a trustee is, in the reasonable opinion of the Required Lenders, likely to result in the termination of such Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan
shall terminate for purposes of Title IV of ERISA, (v) any Group Member or any Commonly Controlled Entity shall, or in the reasonable opinion of the Required Lenders is likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or (vi) any other event or condition shall occur or exist with respect to a Plan;
and in each case in clauses (i) through (vi) above, such event or condition, together with all other such events or conditions, if any, could reasonably be expected to have a Material
Adverse Effect; or 


        (h)   one
or more judgments or decrees shall be entered against any Group Member involving in the aggregate a liability (not paid or fully covered by insurance as to which the
relevant insurance company has acknowledged coverage) of $10,000,000 or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within
30 days from the entry thereof; or 


        (i)    any
of the Security Documents shall cease, for any reason, to be in full force and effect, or any Loan Party or any Affiliate of any Loan Party shall so assert, or any
Lien created by any of the Security Documents in respect of property having a book value or fair market value in excess of $5,000,000 shall cease to be enforceable and of the same effect and priority
purported to be created thereby, or any Loan Party or any Affiliate of any Loan Party shall so assert; or 


        (j)    the
guarantee contained in Section 2 of the Guarantee and Collateral Agreement shall cease, for any reason, to be in full force and effect or any Loan Party or
any Affiliate of any Loan Party shall so assert; or 


        (k)   (i) any
"person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) shall
become, or obtain rights (whether by means or warrants, options or otherwise) to become, the "beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the
Exchange Act), directly or indirectly, of more than 30% of the outstanding common stock of the Borrower; (ii) the board of directors of the
Borrower shall cease to consist of a majority of Continuing Directors; or (iii) a Fundamental Change shall occur; or 


        (l)    the
Convertible Senior Subordinated Debentures or the guarantees thereof shall not be or shall cease to be, for any reason, validly subordinated to the Obligations or
the obligations of the Subsidiary Guarantors under the Guarantee and Collateral Agreement, as the case may be, as provided in the Indenture, or any Loan Party or any Affiliate of any Loan Party shall
so assert; 




then,
and in any such event, (A) if such event is an Event of Default specified in clause (i) or (ii) of paragraph (f) above with respect to the Borrower, automatically the
Commitments shall immediately terminate and the Loans (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents shall immediately become due and
payable, and (B) if such event is any other Event of Default, either or both of the following actions may be taken: (i) with the consent of the Required Lenders, the Administrative Agent
may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower declare the Revolving Commitments to be terminated forthwith, whereupon the Revolving
Commitments shall immediately terminate; and (ii) with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent
shall, by notice to the Borrower, declare the Loans (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents to be due and payable forthwith,
whereupon the same shall immediately become due and payable. With respect to all Letters of Credit with respect to which presentment for honor shall not have occurred at the time of an acceleration
pursuant to this paragraph, the Borrower shall at such time deposit in a cash collateral account opened by the 


54







 

Administrative
Agent an amount equal to the aggregate then undrawn and unexpired amount of such Letters of Credit. Amounts held in such cash collateral account shall be applied by the Administrative
Agent to the payment of drafts drawn under such Letters of Credit, and the unused portion thereof after all such Letters of Credit shall have expired or been fully drawn upon, if any, shall be applied
to repay other obligations of the Borrower hereunder and under the other Loan Documents. After all such Letters of Credit shall have expired or been fully drawn upon, all Reimbursement Obligations
shall have been satisfied and all other obligations of the Borrower hereunder and under the other Loan Documents shall have been paid in full, the balance, if any, in such cash collateral account
shall be returned to the Borrower (or such other Person as may be lawfully entitled thereto). Except as expressly provided above in this Section, presentment, demand, protest and all other notices of
any kind are hereby expressly waived by the Borrower. 


SECTION 9. THE AGENTS  


        9.1    Appointment.    Each Lender hereby irrevocably designates and appoints the Administrative Agent as the agent of
such Lender under this Agreement and the other Loan Documents, and each such Lender irrevocably authorizes the Administrative Agent, in such capacity, to take such action on its behalf under the
provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent by the terms of this Agreement and
the other Loan Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative Agent
shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent. 



        9.2    Delegation of Duties.    The Administrative Agent may execute any of its duties under this Agreement and the
other Loan Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents or attorneys in-fact selected by it with reasonable care. 


        9.3    Exculpatory Provisions.    Neither any Agent nor any of their respective officers, directors, employees,
agents, attorneys-in-fact or affiliates shall be (i) liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection with this
Agreement or any other Loan Document (except to the extent that any of the foregoing are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from its or
such Person's own gross negligence or willful misconduct) or (ii) responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by any Loan
Party or any officer thereof contained in this Agreement or any other Loan Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Agents
under or in connection with, this Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of any Loan Party a party thereto to perform its obligations hereunder or thereunder. The Agents shall not be under any obligation to any Lender to ascertain or to inquire
as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of any Loan
Party. 


        9.4    Reliance by Administrative Agent.    The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any instrument, writing, resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including counsel to the Borrower), 


55







 



independent
accountants and other experts selected by the Administrative Agent. The Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes unless a written
notice of assignment, negotiation or transfer thereof shall have been filed with the Administrative Agent. The Administrative Agent shall be fully justified in failing or refusing to take any action
under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Required Lenders (or, if so specified by this Agreement, all Lenders) as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such
action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other Loan Documents in accordance with a request of the
Required Lenders (or, if so specified by this Agreement, all Lenders), and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future
holders of the Loans. 


        9.5    Notice of Default.    The Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default unless the Administrative Agent has received notice from a Lender or the Borrower referring to this Agreement, describing such Default or Event of Default
and stating that such notice is a "notice of default". In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders (or, if so specified by this Agreement, all
Lenders); provided that unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of the Lenders. 


        9.6    Non-Reliance on Agents and Other Lenders.    Each Lender expressly acknowledges that neither the
Agents nor any of their respective officers, directors, employees, agents, attorneys-in-fact or affiliates have made any representations or warranties to it and that no act by
any Agent hereafter taken, including any review of the affairs of a Loan Party or any affiliate of a Loan Party, shall be deemed to constitute any representation or warranty by any Agent to any
Lender. Each Lender represents to the Agents that it has, independently and without reliance upon any Agent or any other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their affiliates and made
its own decision to make its Loans hereunder and enter into this Agreement. Each Lender also represents that it will, independently and without reliance upon any Agent or any other Lender, and based
on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Loan
Parties and their affiliates. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent shall
not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or
creditworthiness of any Loan Party or any affiliate of a Loan Party that may come into the possession of the Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates. 


        9.7    Indemnification.    The Lenders agree to indemnify each Agent in its capacity as such (to the extent not
reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), ratably according to their respective Aggregate Exposure Percentages in effect on the date on which
indemnification is sought under this Section (or, if indemnification is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full, ratably in 


56







 



accordance
with such Aggregate Exposure Percentages immediately prior to such date), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted against such Agent in any way
relating to or arising out of, the Commitments, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated
hereby or thereby or any action taken or omitted by such Agent under or in connection with any of the foregoing; provided that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from such Agent's gross negligence or willful misconduct. The agreements in this Section shall survive the payment of the Loans and all
other amounts payable hereunder. 


        9.8    Agent in Its Individual Capacity.    Each Agent and its affiliates may make loans to, accept deposits from and
generally engage in any kind of business with any Loan Party as though such Agent were not an Agent. With respect to its Loans made or renewed by it and with respect to any Letter of Credit issued or
participated in by it, each Agent shall have the same rights and powers under this Agreement and the other Loan Documents as any Lender and may exercise the same as though it were not an Agent, and
the terms "Lender" and "Lenders" shall include each Agent in its individual capacity. 


        9.9    Successor Administrative Agent.    The Administrative Agent may resign as Administrative Agent upon
10 days' notice to the Lenders and the Borrower. If the Administrative Agent shall resign as Administrative Agent under this Agreement and the other Loan Documents, then the Required Lenders
shall appoint from among the Lenders a successor agent for the Lenders, which successor agent shall (unless an Event of Default under Section 8(a) or Section 8(f) with respect to the
Borrower shall have occurred and be continuing) be subject to approval by the Borrower (which approval shall not be unreasonably withheld or delayed), whereupon such successor agent shall succeed to
the rights, powers and duties of the Administrative Agent, and the term "Administrative Agent" shall mean such successor agent effective upon such appointment and approval, and the former
Administrative Agent's rights, powers and duties as Administrative Agent shall be terminated, without any other or further act
or deed on the part of such former Administrative Agent or any of the parties to this Agreement or any holders of the Loans. If no successor agent has accepted appointment as Administrative Agent by
the date that is 10 days following a retiring Administrative Agent's notice of resignation, the retiring Administrative Agent's resignation shall nevertheless thereupon become effective, and
the Lenders shall assume and perform all of the duties of the Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for above. After any
retiring Administrative Agent's resignation as Administrative Agent, the provisions of this Section 9 shall inure to its benefit as to any actions taken or omitted to be taken by it while it
was Administrative Agent under this Agreement and the other Loan Documents. 


        9.10    Documentation Agent and Syndication Agent.    Neither the Documentation Agent nor the Syndication Agent shall
have any duties or responsibilities hereunder in its capacity as such. 


57








   SECTION 10. MISCELLANEOUS  


        10.1    Amendments and Waivers.    Neither this Agreement, any other Loan Document, nor any terms hereof or thereof
may be amended, supplemented or modified except in accordance with the provisions of this Section 10.1. The Required Lenders and each Loan Party party to the relevant Loan Document may, or,
with the written consent of the Required Lenders, the Administrative Agent and each Loan Party party to the relevant Loan Document may, from time to time, (a) enter into written amendments,
supplements or modifications hereto and to the other Loan Documents for the purpose of adding any provisions to this Agreement or the other Loan Documents or changing in any manner the rights of the
Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such terms and conditions as the Required Lenders or the Administrative Agent, as the case may be, may specify in such
instrument, any of the requirements of this Agreement or the other Loan Documents or any Default or Event of Default and its consequences; provided,
however, that no such waiver and no such amendment, supplement or modification shall (i) forgive or reduce the principal amount or extend the final scheduled date of
maturity of any Loan, extend the scheduled date of any amortization payment in respect of any Term Loan, reduce the stated rate of any interest or fee payable hereunder (except (x) in
connection with the waiver of applicability of any post-default increase in interest rates (which waiver shall be effective with the consent of the Majority Facility Lenders of each
adversely affected Facility) and (y) that any amendment or modification of defined terms used in the financial covenants in this Agreement shall not constitute a reduction in the rate of
interest or fees for purposes of this clause (i)) or extend the scheduled date of any payment thereof, or increase the amount or extend the expiration date of any Lender's Revolving Commitment,
in each case without the written consent of each Lender directly affected thereby; (ii) eliminate or reduce the voting rights of any Lender under this Section 10.1 without the written
consent of such Lender; (iii) reduce any percentage specified in the definition of Required Lenders, consent to the assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement and the other Loan Documents, release all or substantially all of the Collateral or release all or substantially all of the Subsidiary Guarantors from their obligations under the
Guarantee and Collateral Agreement, in each case without the written consent of all Lenders; (iv) amend, modify or waive any provision of subsection 2.17(a), 2.17(b) or 2.17(c), or of the first
two sentences of subsection 2.17(d), without the written consent of the Majority Facility Lenders in respect of each Facility adversely affected thereby; (v) reduce the percentage specified in
the definition of Majority Facility Lenders with respect to any Facility without the written consent of all Lenders under such Facility; (vi) amend, modify or waive any provision of
Section 9 without the written consent of the Administrative Agent; (vii) amend, modify or waive any provision of Section 2.6 or 2.7 without the written consent of the Swingline
Lender; (viii) amend, modify or waive any provision of Section 3 without the written consent of each Issuing Lender; (ix) eliminate or reduce the amount of any prepayment of Term
Loans or Revolving Loans required to be made pursuant to Section 2.11 without the written consent of the Majority Facility Lenders in respect of each Facility directly adversely affected
thereby; or (x) amend, modify or waive any provision of Section 6.5 of the Guarantee and Collateral Agreement without the written consent of the Majority Facility Lenders in respect of
each Facility (if any) directly adversely affected thereby. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the Lenders and shall be binding upon the Loan Parties, the Lenders, the Administrative Agent and all future holders of the Loans.
In the case of any waiver, the Loan Parties, the Lenders and the Administrative Agent shall be restored to their former position and rights hereunder and under the other Loan Documents, and any
Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right
consequent thereon. 


        Notwithstanding
the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower
(a) to add one or more additional credit facilities to this Agreement, or to increase the Revolving Facility, and to 


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permit
the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan
Documents with the Term Loans and Revolving Extensions of Credit and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities
or increases in any determination of the Required Lenders and Majority Facility Lenders. 


        In
addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Borrower and the Lenders providing the relevant
Replacement Term Loans (as defined below) to permit the refinancing, replacement or modification of all outstanding Term Loans ("Refinanced Term Loans")
with replacement term loans hereunder ("Replacement Term Loans"), provided that (a) the aggregate
principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall
not be higher than the Applicable Margin for such Refinanced Term Loans and (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted
average life to maturity of such Refinanced Term Loans at the time of such refinancing. 


        10.2    Notices.    All notices, requests and demands to or upon the respective parties hereto to be effective shall
be in writing (including by telecopy), and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when delivered, or three Business Days after being deposited in
the mail, postage prepaid, or, in the case of telecopy notice, when received, addressed as follows in the case of the Borrower and the Administrative Agent, and as set forth in an administrative
questionnaire delivered to the Administrative Agent in the case of the Lenders, or to such other address as may be hereafter notified by the respective parties hereto: 



	Borrower:	 	Serologicals Corporation

5655 Spalding Drive

Norcross, Georgia 30092

Attention: Craig Brown

Telecopy: 678-728-2120

Telephone: 678-728-2117
	

Administrative Agent:	
 	

JPMorgan Chase Bank

Loan & Agency Services

1111 Fannin Street, 10th Floor

Houston, Texas 77002

Attention: Denise Ramon

Telecopy: 713-750-2938

Telephone: 713-750-7906






provided that any notice, request or demand to or upon the Administrative Agent or the Lenders shall not be effective until received. 


        Notices
and other communications to the Lenders hereunder may be delivered or furnished by electronic communications pursuant to procedures approved by the Administrative Agent;  provided that the foregoing
shall not apply to notices pursuant to Section 2 unless otherwise agreed by the Administrative Agent and the
applicable Lender. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures
approved by it; provided that approval of such procedures may be limited to particular notices or communications. 


        10.3    No Waiver; Cumulative Remedies.    No failure to exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or privilege hereunder or under the other Loan Documents shall operate as a waiver thereof; nor shall any single or partial 


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exercise
of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers
and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. 


        10.4    Survival of Representations and Warranties.    All representations and warranties made hereunder, in the other
Loan Documents and in any document, certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this Agreement and the making of the Loans
and other extensions of credit hereunder. 


        10.5    Payment of Expenses and Taxes.    The Borrower agrees (a) to pay or reimburse the Administrative Agent
for all its reasonable out-of-pocket costs and expenses incurred in connection with the development, preparation and execution of, and any amendment, supplement or modification
to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby
and thereby, including the reasonable fees and disbursements of counsel to the Administrative Agent and filing and recording fees and expenses, with statements with respect to the foregoing to be
submitted to the Borrower prior to the Closing Date (in the case of amounts to be paid on the Closing Date) and from time to time thereafter on a quarterly basis or such other periodic basis as the
Administrative Agent shall deem appropriate, (b) to pay or reimburse each Lender and the Administrative Agent for all its reasonable out-of-pocket costs and expenses
incurred in connection with the enforcement or preservation of any rights under this Agreement, the other Loan Documents and any such other documents, including the fees and disbursements of counsel
to each Lender and of counsel to the Administrative Agent, (c) to pay, indemnify, and hold each Lender and the Administrative Agent harmless from, any and all recording and filing fees and any
and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other taxes, if any, that may be payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this
Agreement, the other Loan Documents and any such other documents, and (d) to pay, indemnify, and hold each Lender and the Administrative Agent and their respective officers, directors,
employees, affiliates, agents, trustees, advisors and controlling persons (each, an "Indemnitee") harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Loan Documents and any such other documents, including any of the foregoing relating to the use of proceeds of the Loans or the violation
of, noncompliance with or liability under, any Environmental Law applicable to the operations of any Group Member or any of the Properties and the reasonable fees and expenses of legal counsel in
connection with claims, actions or proceedings by any Indemnitee against any Loan Party under any Loan Document (all the foregoing in this clause (d), collectively, the
"Indemnified Liabilities"), provided, that the Borrower shall have no obligation hereunder to any
Indemnitee with respect to Indemnified Liabilities to the extent such Indemnified Liabilities are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from
the gross negligence or willful misconduct of such Indemnitee. Without limiting the foregoing, and to the extent permitted by applicable law, the Borrower agrees not to assert and to cause its
Subsidiaries not to assert, and hereby waives and agrees to cause its Subsidiaries to waive, all rights for contribution or any other rights of recovery with respect to all claims, demands, penalties,
fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature, under or related to Environmental Laws, that any of them might have by statute or otherwise against any
Indemnitee. All amounts due under this Section 10.5 shall be payable not later than 10 days after written demand therefor. Statements payable by the Borrower pursuant to this
Section 10.5 shall be submitted to Attention: Craig Brown (Telephone No. 678-728-2117) (Telecopy No. 678-728-2120), at the address
of the Borrower set forth in 


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Section 10.2,
or to such other Person or address as may be hereafter designated by the Borrower in a written notice to the Administrative Agent. The agreements in this Section 10.5 shall
survive repayment of the Loans and all other amounts payable hereunder. 


        10.6    Successors and Assigns; Participations and Assignments.    (a) The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any affiliate of an Issuing Lender that issues any Letter of
Credit), except that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance
with this Section. 


        (b)   (i) Subject
to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more assignees (each, an
"Assignee") all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time
owing to it) with the prior written consent of: 



        (A)  the
Borrower (such consent not to be unreasonably withheld or delayed), provided that no consent of the Borrower shall be required for an assignment to a Lender, an
affiliate of a Lender, an Approved Fund (as defined below) or, if an Event of Default has occurred and is continuing, any other Person; and 



        (B)  the
Administrative Agent (such consent not to be unreasonably withheld or delayed), provided that no consent of the
Administrative Agent shall be required for an assignment of (I) all or any portion of a Term Loan to a Lender, an affiliate of a Lender or an Approved Fund or (II) all or any portion of
a Revolving Loan or Revolving Commitment to a Lender that is a Revolving Lender immediately prior to such assignment. 



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




        (A)  except
in the case of an assignment to a Lender, an affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender's
Commitments or Loans under any Facility, the amount of the Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 (in the case of the Revolving Facility) or $1,000,000 (in the case of the Term Facility) unless
each of the Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Borrower shall be required if an
Event of Default has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its affiliates or Approved Funds, if any; 


        (B)  the
parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of
$3,500 (it being agreed that only one such fee shall be payable in respect of multiple concurrent assignments by a Lender to one or more Affiliates or Approved Funds of such Lender, or to one or more
other Lenders, or any combination thereof); and 


        (C)  the
Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an administrative questionnaire. 




        For
the purposes of this Section 10.6, "Approved Fund" means any Person (other than a natural person) that is engaged in making,
purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course and that is administered or managed by (a) a Lender, (b) an affiliate of a Lender
or (c) an entity or an affiliate of an entity that administers or manages a Lender. 


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        (iii)  Subject
to acceptance and recording thereof pursuant to paragraph (b)(iv) below, from and after the effective date specified in each Assignment and
Assumption the Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case
of an Assignment and Assumption covering all of the assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to
the benefits of Sections 2.18, 2.19, 2.20 and 10.5); provided, that the assignment of a Revolving Commitment by any Lender to an Approved Fund shall not
relieve the assigning Lender of any of its obligations to fund a Loan under such Revolving Commitment if, for any reason, its Approved Fund fails to fund any such Loan, unless the Borrower has given
its prior written consent to such assignment (such consent not to be unreasonably withheld). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply
with this Section 10.6 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this
Section. 


        (iv)  The
Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered
to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amount of the Loans and L/C Obligations owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the Register shall be conclusive, and the Borrower, the Administrative Agent, the
Issuing Lenders 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. 


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




        (c)   (i) Any
Lender may, without the consent of the Borrower or the Administrative Agent, sell participations to one or more banks or other entities (a
"Participant") in all or a portion of such Lender's rights and obligations under this Agreement (including all or a portion of its Commitments and the
Loans owing to it); provided that (A) such Lender's obligations under this Agreement shall remain unchanged, (B) such Lender shall remain
solely responsible to the other parties hereto for the performance of such obligations and (C) the Borrower, the Administrative Agent, the Issuing Lenders and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement. Any agreement pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided  that such agreement may
provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver that (1) requires the
consent of each Lender directly affected thereby pursuant to the proviso to the second sentence of Section 10.1 and (2) directly affects such Participant. Subject to
paragraph (c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.18, 2.19 and 2.20 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of 


62







 

Section 10.7(b)
as though it were a Lender, provided such Participant shall be subject to Section 10.7(a) as though it were a Lender. 



         (ii)  A
Participant shall not be entitled to receive any greater payment under Section 2.18, 2.19 or 2.20 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower's prior written consent. Any Participant that is
a Non-U.S. Lender shall not be entitled to the benefits of Section 2.19 unless such Participant complies with Section 2.19(d). 




        (d)   Any
Lender may (without the consent of the Borrower or the Administrative Agent) at any time pledge or assign a security interest in all or any portion of its rights
under this Agreement (including the Loans and any Notes or any other instrument evidencing its rights as a Lender under this Agreement) to secure obligations or securities of such Lender, including
any pledge or assignment to secure obligations to a Federal Reserve Bank and any pledge or assignment to any holder of, trustee for, or any other representative of holders of, obligations owed or
securities issued by such Lender, and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or Assignee for such Lender as a party hereto. 


        (e)   The
Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type
described in paragraph (d) above. 


        (f)    Notwithstanding
the foregoing, any Conduit Lender may assign any or all of the Loans it may have funded hereunder to its designating Lender without the consent of the
Borrower or the Administrative Agent and without regard to the limitations set forth in Section 10.6(b). Each of the Borrower, each Lender and the Administrative Agent hereby confirms that it
will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any
state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender;  provided, however, that each Lender
designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any
loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance. 


        10.7    Adjustments; Set-off.    (a) Except to the extent that this Agreement expressly provides
for payments to be allocated to a particular Lender or to the Lenders under a particular Facility, if any Lender (a "Benefitted Lender") shall, at any
time after the Loans and other amounts payable hereunder shall immediately become due and payable pursuant to Section 8, receive any payment of all or part of the Obligations owing to it, or
receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(f), or
otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the Obligations owing to such other Lender, such Benefitted Lender shall
purchase for cash from the other Lenders a participating interest in such portion of the Obligations owing to each such other Lender, or shall provide such other Lenders with the benefits of any such
collateral, as shall be necessary to cause such Benefitted Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided,
however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefitted Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without interest. 



        (b)   In
addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, upon the occurrence and during the continuation of any Event of
Default, without prior notice to the Borrower, any such notice being expressly waived by the Borrower to the extent permitted 


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by
applicable law, upon any amount becoming due and payable by the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such
amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of the Borrower, as the case may
be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided  that the failure to give such notice shall not
affect the validity of such setoff and application. 


        10.8    Counterparts.    This Agreement may be executed by one or more of the parties to this Agreement on any number
of separate counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. Delivery of an executed signature page of this Agreement by facsimile transmission shall be effective as delivery of a manually executed counterpart hereof. A
set of the copies of this Agreement signed by all the parties shall be lodged with the Borrower and the Administrative Agent. 


        10.9    Severability.    Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability
in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. 


        10.10    Integration.    This Agreement and the other Loan Documents represent the entire agreement of the Borrower,
the Administrative Agent and the Lenders with respect to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties by the Administrative Agent or
any Lender relative to the subject matter hereof not expressly set forth or referred to herein or in the other Loan Documents. 



        10.11    GOVERNING LAW.    THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


        10.12    Submission To Jurisdiction; Waivers.    The Borrower hereby irrevocably and unconditionally: 



        (a)   submits
for itself and its property in any legal action or proceeding relating to this Agreement and the other Loan Documents to which it is a party, or for recognition
and enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of the courts of the State of New York, the courts of the United States for the Southern
District of New York, and appellate courts from any thereof; 


        (b)   consents
that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same; 



        (c)   agrees
that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar
form of mail), postage prepaid, to the Borrower at its address set forth in Section 10.2 or at such other address of which the Administrative Agent shall have been notified pursuant thereto; 


        (d)   agrees
that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other
jurisdiction; and 



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        (e)   waives,
to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Section any special,
exemplary, punitive or consequential damages. 




        10.13    Acknowledgements.    The Borrower hereby acknowledges that: 



        (a)   it
has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents; 


        (b)   neither
the Administrative Agent nor any Lender has any fiduciary relationship with or duty to the Borrower arising out of or in connection with this Agreement or any of
the other Loan Documents, and the relationship between Administrative Agent and Lenders, on one hand, and the Borrower, on the other hand, in connection herewith or therewith is solely that of debtor
and creditor; and 


        (c)   no
joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Lenders or among the
Borrower and the Lenders. 




        10.14    Releases of Guarantees and Liens.    (a) Notwithstanding anything to the contrary contained herein or
in any other Loan Document, the Administrative Agent is hereby irrevocably authorized by each Lender (without requirement of notice to or consent of any Lender except as expressly required by
Section 10.1) to take any action requested by the Borrower having the effect of releasing any Collateral or guarantee obligations (i) to the extent necessary to permit consummation of
any transaction not prohibited by any Loan Document or that has been consented to in accordance with Section 10.1 or (ii) under the circumstances described in paragraph (b) below. 


        (b)   At
such time as the Loans, the Reimbursement Obligations and the other obligations under the Loan Documents (other than obligations under or in respect of Swap
Agreements) shall have been paid in full, the Commitments have been terminated, no Letters of Credit shall be outstanding and the obligations under or in respect of Specified Swap Agreements shall
have been cash collateralized, the Collateral shall be released from the Liens created by the Security Documents, and the Security Documents and all obligations (other than those expressly stated to
survive such termination) of the Administrative Agent and each Loan Party under the Security Documents shall terminate, all without delivery of any instrument or performance of any act by any Person. 


        10.15    Confidentiality.    Each of the Administrative Agent and each Lender agrees to keep confidential all
non-public information provided to it by any Loan Party, the Administrative Agent or any Lender pursuant to or in connection with this Agreement that was included in the Confidential
Information Memorandum or that is otherwise designated by the provider thereof as confidential; provided that nothing herein shall prevent the
Administrative Agent or any Lender from disclosing any such information (a) to the Administrative Agent, any other Lender or any affiliate thereof, (b) subject to an agreement to comply
with the provisions of this Section, to any actual or prospective Transferee or any direct or indirect counterparty to any Swap Agreement (or any professional advisor to such counterparty),
(c) to its employees, directors, agents, attorneys, accountants and other professional advisors or those of any of its affiliates, (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 pursuant to the terms hereof), (d) upon the request or demand of any
Governmental Authority, (e) in response to any order of any court or other Governmental Authority or as may otherwise be required pursuant to any Requirement of Law, (f) if required to
do so in connection with any litigation or similar proceeding, (g) that has been publicly disclosed, other than as a result of a breach of this Section 10.15, (h) to the National
Association of Insurance Commissioners or any similar organization or any nationally recognized rating agency that requires access to information about a Lender's investment portfolio in connection
with ratings issued with respect to 


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such
Lender, or (i) in connection with the exercise of any remedy hereunder or under any other Loan Document. 


        10.16    WAIVERS OF JURY TRIAL.    THE BORROWER, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.


        10.17    Delivery of Addenda.    Each initial Lender shall become a party to this Agreement by delivering to the
Administrative Agent an Addendum duly executed by such Lender. 


        10.18    Designated Senior Indebtedness.    The Obligations are hereby designated as "Designated Senior Indebtedness"
for purposes of the Indenture. 


        10.19    USA PATRIOT Act Notice.    Each Lender (for itself and not on behalf of any other party) hereby notifies the
Loan Parties that, pursuant to the requirements of the USA PATRIOT Act, Title III of Pub. L. 107-56, signed into law October 26, 2001 (the
"Act"), it is required to obtain, verify and record information that identifies the Loan Parties, which information includes the name and address of the
Loan Parties and other information that will allow such Lender to identify the Loan Parties in accordance with the Act. 


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



	 	 	SEROLOGICALS CORPORATION
	

 	
 	

By:	
 	

/s/  HAROLD W. INGALLS      
 Name: Harold W. Ingalls

Title: Vice President, Finance
	

 	
 	

JPMORGAN CHASE BANK, as Administrative Agent and as Issuing Lender
	

 	
 	

By:	
 	

/s/  EILEEN W. PIKER      
 Name: Eileen W. Piker

Title: Vice President
	

 	
 	

BANK OF AMERICA, N.A., as Issuing Lender and Syndication Agent
	

 	
 	

By:	
 	

/s/  WILLIAM H. POWELL      
 Name: William H. Powell

Title: Senior Vice President
	

 	
 	

LASALLE BANK NATIONAL ASSOCIATION, as Documentation Agent
	

 	
 	

By:	
 	

/s/  JAMES J. HESS      
 Name: James J. Hess

Title: First Vice President




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