Exhibit 10.69



 





Exhibit 10.69




Italicized sections and changes 

therein are incorporated from the

First Amendment to the Credit

Agreement, which became effective

on April 14, 2004.




$240,000,000




AMENDED AND RESTATED CREDIT AGREEMENT




dated as of October [22], 2004,




among




GENERAL CABLE INDUSTRIES, INC.,

as Borrower,




GENERAL CABLE CORPORATION




and




THE OTHER GUARANTORS PARTY HERETO,

as Guarantors,




THE LENDERS PARTY HERETO,




MERRILL LYNCH CAPITAL, a division of

Merrill Lynch Business Financial Services Inc.,

as Collateral Agent and Syndication Agent,




FLEET CAPITAL CORPORATION,

GENERAL ELECTRIC CAPITAL CORPORATION and

GMAC COMMERCIAL FINANCE LLC,

as Co-Documentation Agents,




MERRILL LYNCH CAPITAL, a division of

Merrill Lynch Business Financial Services Inc., and

UBS SECURITIES LLC,

as Joint Lead Arrangers,




UBS AG, STAMFORD BRANCH,

as Issuing Bank and Administrative Agent




and




UBS LOAN FINANCE LLC,

as Swingline Lender




 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page

	ARTICLE I. DEFINITIONS
	 	 	1	 
	SECTION 1.01   Defined Terms
	 	 	1	 
	SECTION 1.02   Classification of Loans and Borrowings
	 	 	46	 
	SECTION 1.03   Terms Generally
	 	 	46	 
	SECTION 1.04   Accounting Terms; GAAP
	 	 	47	 
	ARTICLE II. THE CREDITS
	 	 	47	 
	SECTION 2.01   Commitments
	 	 	47	 
	SECTION 2.02   Loans
	 	 	48	 
	SECTION 2.03   Borrowing Procedure
	 	 	49	 
	SECTION 2.04   Evidence of Debt; Repayment of Loans
	 	 	50	 
	SECTION 2.05   Fees
	 	 	51	 
	SECTION 2.06   Interest on Loans and Default Compensation
	 	 	52	 
	SECTION 2.07   Termination and Reduction of Commitments
	 	 	53	 
	SECTION 2.08   Interest Elections
	 	 	54	 
	SECTION 2.09   [Intentionally Omitted]
	 	 	55	 
	SECTION 2.10   Optional and Mandatory Prepayments of Loans
	 	 	55	 
	SECTION 2.11   Alternate Rate of Interest
	 	 	59	 
	SECTION 2.12   Increased Costs
	 	 	59	 
	SECTION 2.13   Breakage Payments
	 	 	61	 
	SECTION 2.14   Payments Generally; Pro Rata Treatment; Sharing of Set-offs
	 	 	61	 
	SECTION 2.15   Taxes
	 	 	63	 
	SECTION 2.16   Mitigation Obligations; Replacement of Lenders
	 	 	64	 
	SECTION 2.17   Swingline Loans
	 	 	65	 
	SECTION 2.18   Letters of Credit
	 	 	67	 
	SECTION 2.19   Determination of Borrowing Base
	 	 	72	 
	ARTICLE III. REPRESENTATIONS AND WARRANTIES
	 	 	77	 
	SECTION 3.01   Organization; Powers
	 	 	77	 
	SECTION 3.02   Authorization; Enforceability
	 	 	77	 
	SECTION 3.03   Governmental Approvals; No Conflicts
	 	 	78	 
	SECTION 3.04   Financial Statements
	 	 	78	 
	SECTION 3.05   Properties
	 	 	79	 
	SECTION 3.06   Equity Interests and Subsidiaries
	 	 	81	 
	SECTION 3.07   Litigation; Compliance with Laws
	 	 	82	 
	SECTION 3.08   Agreements
	 	 	82	 
	SECTION 3.09   Federal Reserve Regulations
	 	 	83	 
	SECTION 3.10   Investment Company Act; Public Utility Holding Company Act
	 	 	83	 
	SECTION 3.11   Use of Proceeds
	 	 	83	 







i 









 






	 	 	 	 	 
	 	 	Page

	SECTION 3.12   Taxes
	 	 	83	 
	SECTION 3.13   No Material Misstatements
	 	 	84	 
	SECTION 3.14   Labor Matters
	 	 	84	 
	SECTION 3.15   Solvency
	 	 	84	 
	SECTION 3.16   Employee Benefit and Pension Plans
	 	 	85	 
	SECTION 3.17   Environmental Matters
	 	 	86	 
	SECTION 3.18   Insurance
	 	 	87	 
	SECTION 3.19   Security Documents
	 	 	87	 
	SECTION 3.20   Equity Financing Documents; Representations and Warranties in Agreement
	 	 	88	 
	SECTION 3.21   [Intentionally Omitted.]
	 	 	88	 
	SECTION 3.22   Location of Material Inventory
	 	 	88	 
	SECTION 3.23   Accuracy of Borrowing Base
	 	 	88	 
	SECTION 3.24   Post-Audit Asset Dispositions
	 	 	89	 
	SECTION 3.25   Holding Companies; Inactive Subsidiaries
	 	 	89	 
	SECTION 3.26   Common Enterprise
	 	 	89	 
	ARTICLE IV. CONDITIONS TO CREDIT EXTENSIONS
	 	 	89	 
	SECTION 4.01   Conditions to Continue to Fund the Credit Extensions
	 	 	89	 
	SECTION 4.02   Conditions to All Credit Extensions
	 	 	91	 
	ARTICLE V. AFFIRMATIVE COVENANTS
	 	 	92	 
	SECTION 5.01   Financial Statements, Reports, etc
	 	 	93	 
	SECTION 5.02   Litigation and Other Notices
	 	 	95	 
	SECTION 5.03   Existence; Businesses and Properties
	 	 	96	 
	SECTION 5.04   Insurance
	 	 	97	 
	SECTION 5.05   Obligations and Taxes
	 	 	97	 
	SECTION 5.06   Employee Benefits and Pension Plans
	 	 	98	 
	SECTION 5.07   Maintaining Records; Access to Properties and Inspections
	 	 	99	 
	SECTION 5.08   Use of Proceeds
	 	 	99	 
	SECTION 5.09   Compliance with Environmental Laws; Environmental Reports
	 	 	99	 
	SECTION 5.10   [Intentionally Omitted]
	 	 	99	 
	SECTION 5.11   Additional Collateral; Additional Guarantors
	 	 	100	 
	SECTION 5.12   Security Interests; Further Assurances
	 	 	101	 
	SECTION 5.13   Information Regarding Collateral; Corporate Identity or Taxpayer Identifications
	 	 	102	 
	SECTION 5.14   Post-Closing Collateral Matters
	 	 	102	 
	SECTION 5.15   Borrowing Base-Related Reports
	 	 	103	 
	SECTION 5.16   [Intentionally Omitted]
	 	 	105	 
	SECTION 5.17   Maintenance of Foreign Credit Lines
	 	 	105	 
	SECTION 5.18   Maintenance of Real Property
	 	 	105	 
	ARTICLE VI. NEGATIVE COVENANTS
	 	 	105	 
	SECTION 6.01   Indebtedness
	 	 	106	 







ii 









 






	 	 	 	 	 
	 	 	Page

	SECTION 6.02   Liens
	 	 	109	 
	SECTION 6.03   Sale and Leaseback Transactions
	 	 	112	 
	SECTION 6.04   Investments, Loans and Advances
	 	 	112	 
	SECTION 6.05   Mergers, Consolidations, Sales of Assets and Acquisitions
	 	 	115	 
	SECTION 6.06   Restricted Payments
	 	 	117	 
	SECTION 6.07   Transactions with Affiliates
	 	 	118	 
	SECTION 6.08   Financial Covenants
	 	 	119	 
	SECTION 6.09   Limitation on Modifications of Indebtedness; Modifications
of Certificate of Incorporation, or Other
Constitutive Documents, By-laws and Certain Other Agreements, etc
	 	 	120	 
	SECTION 6.10   Limitation on Certain Restrictions on Subsidiaries
	 	 	120	 
	SECTION 6.11   Limitation on Issuance of Capital Stock
	 	 	121	 
	SECTION 6.12   Limitation on Creation of Subsidiaries
	 	 	121	 
	SECTION 6.13   Business
	 	 	122	 
	SECTION 6.14   Limitation on Accounting Changes
	 	 	122	 
	SECTION 6.15   Fiscal Year
	 	 	122	 
	SECTION 6.16   No Negative Pledges
	 	 	122	 
	SECTION 6.17   Lease Obligations
	 	 	122	 
	SECTION 6.18   Upstream Restrictions
	 	 	122	 
	SECTION 6.19   Holdings Companies; Inactive Subsidiaries
	 	 	123	 
	SECTION 6.20   Material Agreements
	 	 	123	 
	ARTICLE VII. GUARANTEE
	 	 	123	 
	SECTION 7.01   The Guarantee
	 	 	123	 
	SECTION 7.02   Obligations Unconditional
	 	 	124	 
	SECTION 7.03   Reinstatement
	 	 	125	 
	SECTION 7.04   Subrogation; Subordination
	 	 	126	 
	SECTION 7.05   Remedies
	 	 	126	 
	SECTION 7.06   Instrument for the Payment of Money
	 	 	126	 
	SECTION 7.07   Continuing Guarantee
	 	 	127	 
	SECTION 7.08   General Limitation on Guarantee Obligations
	 	 	127	 
	ARTICLE VIII. EVENTS OF DEFAULT
	 	 	128	 
	ARTICLE IX. COLLATERAL MATTERS; CASH COLLATERAL ACCOUNTS; APPLICATION OF COLLATERAL PROCEEDS
	 	 	131	 
	SECTION 9.01   Accounts and Account Collections
	 	 	131	 
	SECTION 9.02   Inventory; Field Audits and Appraisals
	 	 	134	 
	SECTION 9.03   Equipment, Real Property and Appraisals
	 	 	134	 
	SECTION 9.04   Cash Collateral Account
	 	 	135	 
	SECTION 9.05   Application of Proceeds
	 	 	135	 
	ARTICLE X. THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
	 	 	136	 
	SECTION 10.01 Appointment
	 	 	136	 







iii 









 






	 	 	 	 	 
	 	 	Page

	SECTION 10.02 Administrative Agent and Collateral Agent in Their Individual Capacity
	 	 	137	 
	SECTION 10.03 Exculpatory Provisions
	 	 	138	 
	SECTION 10.04 Reliance by the Administrative Agent and the Collateral Agent
	 	 	138	 
	SECTION 10.05 Delegation of Duties
	 	 	139	 
	SECTION 10.06 Successor Administrative Agent and/or Collateral Agent
	 	 	139	 
	SECTION 10.07 Non-Reliance on the Administrative Agent, the Collateral Agent or Other Lenders
	 	 	139	 
	SECTION 10.08 No Other Administrative Agent or Collateral Agent
	 	 	140	 
	SECTION 10.09 Indemnification
	 	 	140	 
	SECTION 10.10 Overadvances
	 	 	140	 
	SECTION 10.11 Special Agent Advances
	 	 	141	 
	ARTICLE XI. MISCELLANEOUS
	 	 	142	 
	SECTION 11.01 Notices
	 	 	142	 
	SECTION 11.02 Waivers; Amendment; Releases of Collateral
	 	 	143	 
	SECTION 11.03 Expenses; Indemnity
	 	 	146	 
	SECTION 11.04 Successors and Assigns
	 	 	147	 
	SECTION 11.05 Survival of Agreement
	 	 	150	 
	SECTION 11.06 Counterparts; Integration; Effectiveness
	 	 	150	 
	SECTION 11.07 Severability
	 	 	150	 
	SECTION 11.08 Right of Setoff
	 	 	150	 
	SECTION 11.09 Governing Law; Jurisdiction; Consent to Service of Process
	 	 	151	 
	SECTION 11.10 Waiver of Jury Trial
	 	 	151	 
	SECTION 11.11 Headings
	 	 	152	 
	SECTION 11.12 Confidentiality
	 	 	152	 
	SECTION 11.13 Interest Rate Limitation
	 	 	153	 
	SECTION 11.14 Lender Addendum
	 	 	153	 
	SECTION 11.15 Dollar Equivalent Calculations
	 	 	153	 
	SECTION 11.16 Judgment Currency
	 	 	153	 
	SECTION 11.17 Patriot Act
	 	 	154	 
	ARTICLE XII. AMENDMENT AND RESTATEMENT OF EXISTING CREDIT AGREEMENT
	 	 	154	 







iv 









 






	 	 	 
	ANNEXES
	 	 
	 
	 	 
	Annex I

	 	Applicable Margin
	Annex II

	 	Lenders and Commitments
	Annex III

	 	Closing Checklist
	 
	 	 
	SCHEDULES
	 	 
	 
	 	 
	Schedule 1.01(a)

	 	Mortgaged Real Property
	Schedule 1.01(b)

	 	Refinancing Indebtedness To Be Repaid
	Schedule 1.01(c)

	 	Guarantors
	Schedule 1.01(d)

	 	Eligible Equipment and Eligible Real Property
	Schedule 1.01(e)

	 	Locations of Eligible Equipment
	Schedule 1.01(f)

	 	Intercompany Agreements
	Schedule 3.03

	 	Governmental Approvals; Compliance with Laws
	Schedule 3.05(b)

	 	Real Property; Maintenance and Repairs
	Schedule 3.06(a)

	 	Subsidiaries
	Schedule 3.06(c)

	 	Corporate Organizational Chart
	Schedule 3.08(c)

	 	Material Agreements
	Schedule 3.16

	 	Canadian Pension Plans
	Schedule 3.17

	 	Environmental Matters
	Schedule 3.18

	 	Insurance
	Schedule 3.22

	 	Location of Material Inventory
	Schedule 4.01(g)

	 	Local Counsel
	Schedule 4.01(n)

	 	Landlord Access Agreements
	Schedule 4.01(o)(iii)

	 	Title Insurance Amounts
	Schedule 5.14

	 	Post-Closing Matters
	Schedule 6.01(b)

	 	Existing Indebtedness
	Schedule 6.01(c)

	 	Existing Interest Rate Protection Agreements
	Schedule 6.02(c)

	 	Existing Liens
	Schedule 6.04(a)

	 	Existing Investments
	Schedule 6.18

	 	Holdings Companies; Inactive Subsidiaries
	 
	 	 
	EXHIBITS
	 	 
	 
	 	 
	Exhibit A-1

	 	Form of Administrative Questionnaire
	Exhibit A-2

	 	Form of Compliance Certificate
	Exhibit A-3

	 	Form of LC Request
	Exhibit A-4

	 	Form of Lender Addendum
	Exhibit B

	 	Form of Assignment and Acceptance
	Exhibit C

	 	Form of Borrowing Request
	Exhibit D

	 	Form of Interest Election Request
	Exhibit E

	 	Form of Joinder Agreement
	Exhibit F

	 	Form of Landlord Lien Waiver and Access Agreement
	Exhibit G

	 	Form of Mortgage







v 









 






	 	 	 
	Exhibit H-1

	 	Form of Revolving Note
	Exhibit H-2

	 	Form of Swingline Note
	Exhibit I-1

	 	Form of Perfection Certificate
	Exhibit I-2

	 	Form of Perfection Certificate Supplement
	Exhibit J-1

	 	Form of US Security Agreement
	Exhibit J-2

	 	Form of Canadian Security Agreement
	Exhibit K

	 	Form of Opinion of Blank Rome LLP
	Exhibit L

	 	Form of Intercompany Note
	Exhibit M

	 	Form of Solvency Certificate
	Exhibit N

	 	Form of Borrowing Base Certificate







vi 









 






AMENDED AND RESTATED CREDIT AGREEMENT




     This AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) dated as of
October [22], 2004, is among GENERAL CABLE INDUSTRIES, INC., a Delaware
corporation (“Borrower”), the Guarantors (such term and each other capitalized
term used but not defined herein having the meaning given to it in Article I),
the Lenders, MERRILL LYNCH CAPITAL a division of Merrill Lynch Business
Financial Services Inc. and UBS SECURITIES LLC, as joint lead arrangers
(collectively, in such capacity, “Arrangers”), MERRILL LYNCH CAPITAL, a
division of Merrill Lynch Business Financial Services Inc., as syndication
agent (in such capacity, “Syndication Agent”), FLEET CAPITAL CORPORATION, as a
co-documentation agent (in such capacity, a “Co-Documentation Agent”), GMAC
COMMERCIAL FINANCE LLC, as a co-documentation agent (in such capacity, a
“Co-Documentation Agent”), GENERAL ELECTRIC CAPITAL CORPORATION, as a
co-documentation agent (in such capacity, a “Co-Documentation Agent”), UBS LOAN
FINANCE LLC, as a Lender and as swingline lender (in such capacity, “Swingline
Lender”), UBS AG, STAMFORD BRANCH, in its individual capacity (in such
capacity, “UBS”), as issuing bank (in such capacity, “Issuing Bank”), and as
administrative agent (in such capacity, “Administrative Agent”) for the Lenders
and MERRILL LYNCH CAPITAL, a division of Merrill Lynch Business Financial
Services Inc., in its individual capacity (in such capacity, “Merrill”) and as
collateral agent and as security trustee (in such capacity, “Collateral Agent”)
for the Secured Parties.



     WITNESSETH:



     WHEREAS, Borrower and certain parties hereto are parties to a Credit
Agreement, dated as of November 24, 2003 (as amended, supplemented or otherwise
modified prior to the date hereof, the “Prior Credit Agreement”), pursuant to
which the Lenders extended Revolving Loans and other Credit Extensions in an
aggregate principal amount at any time outstanding not in excess of $240.0
million for the purposes of (a) effecting the Refinancing, (b) financing any
Permitted Loan Funded Acquisition and (c) providing funds for general corporate
purposes of Borrower;



     WHEREAS, Borrower, the Administrative Agent, the Collateral Agent and
Lenders desire to amend and restate the Prior Credit Agreement on the terms set
forth herein to, among other things, (a) reduce the Applicable Margins as set
forth herein, (b) increase the limitation on Capital Expenditures and (c)
increase the Swingline Commitment.



     NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, and for other good and valuable consideration, the
parties hereto agree to amend and restate the Prior Credit Agreement in its
entirety as follows:



ARTICLE I.




DEFINITIONS




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



1









 





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



     “ABR Borrowing” shall mean a Borrowing comprised of ABR Loans.



     “ABR Loan” shall mean any ABR Revolving Loan.



     “ABR Revolving Borrowing” shall mean a Borrowing comprised of ABR
Revolving Loans.



     “ABR Revolving Loan” shall mean any Revolving Loan bearing interest at a
rate determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.



     “Account Debtor” shall mean any Person who may become obligated to another
Person under, with respect to, or on account of, an Account.



     “Accounting Changes” shall have meaning assigned to such term in Section
1.04.



     “Accounts” shall mean all “accounts,” as such term is defined in the UCC,
in which any Person now or hereafter has rights, including, without limitation,
any and all rights to payment for the sale or lease of goods or rendition of
services, whether or not they have been earned by performance, in each case,
for purposes of calculating the Borrowing Base, net of any credits, rebates or
offsets owed by Borrower or Borrowing Base Guarantors to the respective
customer.



     “Acquisition Consideration” shall mean the purchase consideration for any
Permitted Acquisition and all other payments paid to or for the benefit of the
seller by Holdings or any of its Subsidiaries in exchange for, or as part of,
or in connection with, any Permitted Acquisition, whether paid in cash or by
exchange of Equity Interests or of assets or otherwise and whether payable at
or prior to the consummation of such Permitted Acquisition or deferred for
payment at any future time, whether or not any such future payment is subject
to the occurrence of any contingency, and includes any and all payments
representing the purchase price and any assumptions of Indebtedness,
“earn-outs” and other agreements to make any payment the amount of which is, or
the terms of payment of which are, in any respect subject to or contingent upon
the revenues, income, cash flow or profits (or the like) of any Person or
business.



     “Acquisition Debt Issuance” shall mean unsecured Indebtedness issued to
seller(s) or to or sold through financial institutions acceptable to the
Administrative Agent and the Collateral Agent in their collective reasonable
discretion as consideration for a Permitted Non-Loan Funded Acquisition in an
amount, on such terms (including ownership and structure of the Person being
acquired and the identity of all obligors with respect to such debt), and
subordinated to the Obligations in a manner and form satisfactory to the
Administrative Agent and the Collateral Agent in their collective reasonable
discretion as to right and time of payment and as to any other terms, rights
and remedies thereunder.



     “Activation Notice” shall have the meaning assigned to such term in
Section 9.01(e)(ii).



2









 





     “Adjusted LIBOR Rate” shall mean, with respect to any Eurodollar Revolving
Borrowing for any Interest Period, (a) an interest rate per annum (rounded
upward, if necessary, to the next 1/100 of 1%) determined by the Administrative
Agent to be equal to the LIBOR Rate for such Eurodollar Revolving Borrowing in
effect for such Interest Period divided by (b) 1 minus the Statutory Reserves
(if any) for such Eurodollar Revolving Borrowing for such Interest Period.



     “Administrative Agent” shall have the meaning assigned to such term in the
preamble hereto and includes each other Person appointed as the successor
pursuant to Article X.



     “Administrative Agent Fees” shall have the meaning assigned to such term
in Section 2.05(b).



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



     “Affiliate” shall mean, when used with respect to a specified Person,
another Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified; provided, however, that, for purposes of Section 6.07, the term
“Affiliate” shall also include any Person that directly or indirectly owns more
than 20% of any class of Equity Interests of the Person specified or that is an
executive officer or director of the Person specified.



     “Agreement” shall have the meaning assigned to such term in the preamble
hereto.



     “Alternate Base Rate” shall mean, for any day, a rate per annum (rounded
upward, if necessary, to the next 1/100 of 1%) equal to the greater of (a) the
Base Rate in effect on such day and (b) the Federal Funds Effective Rate in
effect on such day plus 0.50%. If the Administrative Agent shall have
determined (which determination shall be conclusive absent manifest error) that
it is unable to ascertain the Federal Funds Effective Rate for any reason,
including the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms of the definition thereof,
the Alternate Base Rate shall be determined without regard to clause (b) of the
preceding sentence until the circumstances giving rise to such inability no
longer exist. Any change in the Alternate Base Rate due to a change in the
Base Rate or the Federal Funds Effective Rate shall be effective on the
effective date of such change in the Base Rate or the Federal Funds Effective
Rate, respectively.



     “Applicable Margin” shall mean, for any day, with respect to any Revolving
Loan, the applicable percentage set forth in Annex I under the appropriate
caption.



     “Arrangers” shall have the meaning assigned to such term in the preamble
hereto.



     “Asset Sale” shall mean (a) any conveyance, sale, lease, sublease,
assignment, transfer or other disposition (including by way of merger or
consolidation and including any sale and leaseback transaction) of any Property
(including stock of any Subsidiary of Holdings by the
holder thereof) by Holdings, Intermediate Holdings, Borrower or any of
their Subsidiaries to any Person other than Borrower or any Guarantor
(excluding (i) Inventory sold in the ordinary course



3









 





of business, (ii) any sale
or discount, in each case without recourse, of accounts receivable arising in
the ordinary course of business, but only in connection with the compromise or
collection thereof, (iii) disposals of obsolete, uneconomical, negligible, worn
out or surplus Property in the ordinary course of business or (iv) sales of
Cash Equivalents and marketable securities) and (b) any issuance or sale by any
Subsidiary of Holdings of its Equity Interests to any Person (other than to
Borrower or any Guarantor).



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



     “Attributable Indebtedness” shall mean, when used with respect to any sale
and leaseback transaction, as at the time of determination, the present value
(discounted at a rate equivalent to the then-current weighted average cost of
funds for borrowed money of Holdings and all of its Domestic Subsidiaries as at
the time of determination, compounded on a semi-annual basis) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in any such sale and leaseback transaction.



     "AutoZone Account(s)” shall mean those certain Account(s) with AutoZone,
Inc. as the Account Debtor, owing to Borrower, any Borrowing Base Guarantor, or
any Subsidiary thereof.



     "Available Amount” shall mean, with respect to any Eligible Account, an
amount equal to the book value of such Eligible Account multiplied by the then
applicable advance rate with respect to such Eligible Account, as adjusted by
the Collateral Agent in its reasonable credit judgment and pursuant to the
Credit Agreement.



     “Base Rate” shall mean a variable per annum rate, as of any date of
determination, equal to the rate from time to time published in the “Money
Rates” section of The Wall Street Journal as being the “Prime Rate” (or, if
more than one rate is published as the Prime Rate, then the highest of such
rates). The Base Rate will change as of the date of publication in The Wall
Street Journal of a “Prime Rate” that is different from that published on the
preceding Business Day. In the event that The Wall Street Journal shall, for
any reason, fail or cease to publish the “Prime Rate,” Administrative Agent
shall choose a reasonably comparable index or source to use as the basis for
the Base Rate.



     “BIA” shall mean the Bankruptcy and Insolvency Act (Canada), as the same
may be in effect from time to time.



     “Blocked Account” shall have the meaning assigned to such term in Section
9.01(d).



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



     “Borrower” shall have the meaning assigned to such term in the preamble
hereto.



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



4









 





     “Borrowing Base” shall mean at any time, subject to adjustment as provided
in Section 2.19, an amount equal to the lesser of:



     (a) an amount equal to the sum of, without duplication:



          (i) the book value of Eligible Accounts of Borrower multiplied by the
advance rate of 85%, plus



          (ii) the lesser of (i) the advance rate of 60% of the Cost of Eligible
Inventory of Borrower or (ii) the advance rate of 85% of the Net Recovery Cost
Percentage multiplied by the Cost of Eligible Inventory of Borrower, plus



          (iii) the aggregate of all Incorporated Borrowing Bases, plus



          (iv) the Fixed Asset Loan Value of Borrower multiplied by the FALV
Amortization Factor; provided, that the Fixed Asset Loan Value of Borrower
shall in no event exceed $40.0 million, minus



          (v) effective immediately upon notification thereof to Borrower by the
Collateral Agent, any Reserves established from time to time by the Collateral
Agent in the exercise of its reasonable credit judgment;



     or



     (b) the maximum amount permitted to be outstanding pursuant to Section
4.10(b)(3) of the Qualified Senior Note Indenture.



Assets denominated in Canadian Dollars shall for purposes hereof be valued at
the Dollar Equivalents.



The Borrowing Base at any time shall be determined by reference to the most
recent Borrowing Base Certificate theretofore delivered to the Collateral Agent
and the Administrative Agent with such adjustments (subject to any Lender
approval required by Section 2.19) as the Collateral Agent deem appropriate in
its reasonable credit judgment to assure that the Borrowing Base is calculated
in accordance with the terms of this Agreement.



     “Borrowing Base Certificate” shall mean an Officers’ Certificate from
Borrower, substantially in the form of, and containing the information
prescribed by, Exhibit N, delivered to the Administrative Agent and the
Collateral Agent setting forth Borrower’s calculation of the Borrowing Base
(including the maximum amount permitted to be outstanding pursuant to Section
4.10(b)(3) of the Qualified Senior Note Indenture).



     “Borrowing Base Guarantor” shall mean Holdings, Intermediate Holdings,
General Cable Canada, General Cable LLC, General Cable Texas, General Cable
Technologies and any
other Wholly Owned Subsidiary of Borrower which may hereafter be approved
by Administrative Agent and Collateral Agent which (a) is a Domestic Subsidiary
or a Canadian Subsidiary, (b) is currently able to prepare all collateral
reports in a comparable manner to the Borrower’s reporting procedures and (c)
has executed and delivered to Collateral Agent such



5









 





joinder agreements to
guarantees, contribution and set-off agreements and other Security Documents as
Collateral Agent has reasonably requested so long as Collateral Agent has
received and approved, in its reasonable discretion, (i) a collateral audit and
Inventory Appraisal conducted by an independent appraisal or audit firm
designated by Collateral Agent and reasonably acceptable to Borrower and (ii)
all UCC or PPSA search results necessary to confirm Collateral Agent’s first
priority Lien on all of such Borrowing Base Guarantor’s personal Property,
subject to Permitted Liens.



     “Borrowing Base Guarantor Intercompany Loan Account” shall mean the sum of
(a) the net amount of any intercompany advances (including Letters of Credit
issued for the account or benefit of a Borrowing Base Guarantor) which are made
and are outstanding to or for the account of a Borrowing Base Guarantor from
Borrower and (b) interest accrued and unpaid on such amount at the rate per
annum equal to the Alternate Base Rate plus the Applicable Margin in effect
from time to time.



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



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



     “Canadian” shall mean, as to any Person, a Person that is created or
organized under the laws of Canada or a Province or territory of Canada.



     “Canadian Benefit Plans” shall mean all material employee benefit plans of
any nature or kind whatsoever that are not Canadian Pension Plans and are
maintained or contributed to by any Loan Party having employees in Canada.



     “Canadian Dollars” and the sign “Cdn$” shall mean lawful currency of
Canada.



     “Canadian Guaranty” shall mean that certain Guarantee dated as of the
Original Closing Date addressed to the Collateral Agent for the benefit of the
Secured Parties by General Cable Canada, and that certain Guarantee dated as of
the Original Closing Date addressed to the Collateral Agent for the benefit of
the Secured Parties by General Cable Canada Ltd., an Ontario corporation, which
are governed by Canadian law, as the same may from time to time be modified,
amended, extended or reaffirmed in accordance with the terms hereof and with
the consent of Collateral Agent.



     “Canadian Pension Plans” shall mean each plan which is considered to be a
pension plan for the purposes of any applicable pension benefits standards
statute and/or regulation in
Canada established, maintained or contributed to by any Loan Party for its
employees or former employees and shall not mean the Canadian Pension Plan that
is maintained by the Government of Canada.



6









 





     “Canadian Pledge Agreements” shall mean that certain ULC Securities Pledge
Agreement by Holdings pledging all of its Equity Interests in General Cable
Canada, that certain ULC Securities Pledge Agreement by Marathon Manufacturing
Holdings, Inc., a Delaware corporation, pledging all of its Equity Interests in
General Cable Canada, and that certain ULC Securities Pledge Agreement General
Cable Canada Ltd., an Ontario corporation, pledging all of its Equity Interests
in General Cable Canada, each dated as of the Original Closing Date addressed
to Collateral Agent for the benefit of the Secured Parties, as the same may
from time to time be modified amended, extended or reaffirmed in accordance
with the terms hereof and with the consent of Collateral Agent.



     “Canadian Priority Payment Reserve” shall mean, at any time, with respect
to General Cable Canada and any other Canadian Loan Party, the amount past due
and owing by any such Person, or the accrued amount for which any such Person
has an obligation to remit to a Governmental Authority or other Person pursuant
to any applicable law, rule or regulation, in respect of (i) pension fund
obligations; (ii) unemployment insurance; (iii) goods and services taxes; sales
taxes; employee income taxes and other taxes payable or to be remitted or
withheld; (iv) workers’ compensation; (v) vacation pay; and (vi) other like
charges and demands; in each case, in respect of which any Governmental
Authority or other Person may claim a security interest, lien, trust or other
claim ranking or capable of ranking in priority to or pari passu with one or
more of the Liens granted in the Security Documents.



     “Canadian Security Agreement” shall mean that certain Security Agreement
dated as of the Original Closing Date addressed to the Collateral Agent for the
benefit of the Secured Parties by General Cable Canada, which is governed by
Canadian law, as the same may from time to time be modified, amended, extended
or reaffirmed in accordance with the terms hereof and with the consent of
Collateral Agent.



     “Capital Expenditures” shall mean, with respect to any Person, for any
period, the aggregate amount of all expenditures by such Person and its
Subsidiaries during that period for fixed or capital assets that, in accordance
with GAAP, are or should be classified as capital expenditures in the
consolidated balance sheet of such Person and its Consolidated Subsidiaries.



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



     “Cash Collateral Account” shall have the meaning assigned to such term in
Section 9.04.



     “Cash Equivalents” shall mean, as to any Person: (a) securities issued,
or directly, unconditionally and fully guaranteed or insured, by the United
States or any agency or
instrumentality thereof (provided, that the full faith and credit of the
United States is pledged in support thereof) having maturities of not more than
one year from the date of acquisition by such Person; (b) securities issued, or
directly, unconditionally and fully guaranteed or insured, by any state of the
United States of America or any political subdivision of any such state or any
public



7









 





instrumentality thereof maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either Standard & Poor’s Ratings Group or
Moody’s Investors Services, Inc.; (c) time deposits and certificates of deposit
or bankers’ acceptance of any Lender or any commercial bank having, or which is
the principal banking subsidiary of a bank holding company organized under the
laws of the United States, any state thereof or the District of Columbia
having, capital and surplus aggregating in excess of $500.0 million and a
rating of “A” (or such other similar equivalent rating) or higher by at least
one nationally recognized statistical rating organization (as defined in Rule
436 under the Securities Act) with maturities of not more than one year from
the date of acquisition by such Person; (d) repurchase obligations with a term
of not more than 30 days for underlying securities of the types described in
clauses (a) and (b) above entered into with any bank meeting the qualifications
specified in clauses (c) above, which repurchase obligations are secured by a
valid perfected security interest in the underlying securities; (e) commercial
paper issued by any Person incorporated in the United States rated at least A-1
or the equivalent thereof by Standard & Poor’s Rating Service or at least P-1
or the equivalent thereof by Moody’s Investors Service, Inc., and in each case
maturing not more than one year after the date of acquisition by such Person;
(f) investments in money market funds substantially all of whose assets are
comprised of securities of the types described in clauses (a) through (e)
above; and (g) demand deposit accounts maintained in the ordinary course of
business.



     “Cash Management System” shall have the meaning assigned to such term in
Section 9.01(e).



     “Casualty Event” shall mean, with respect to any Property (including Real
Property) of any Person (other than a Person which is a Foreign Subsidiary of
Holdings) any loss of title with respect to such Property or any loss of or
damage to or destruction of, or any condemnation or other taking (including by
any Governmental Authority) of, such Property for which such Person or any of
its Subsidiaries (other than Foreign Subsidiaries) receives insurance proceeds
or proceeds of a condemnation award or other compensation. “Casualty Event”
shall include but not be limited to any taking of all or any part of any Real
Property of any such Person or any part thereof, in or by condemnation or other
eminent domain proceedings pursuant to any law, or by reason of the temporary
requisition of the use or occupancy of all or any part of any Real Property of
any such Person or any part thereof by any Governmental Authority, civil or
military.



     “CCAA” shall mean the Companies’ Creditors Agreement Act (Canada), as the
same may be in effect from time to time.



     “CERCLA” shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. § 9601 et seq.



     “Change in Control” shall be deemed to have occurred if: (a) any Person
or group (within the meanings of the Securities Exchange Act of 1934 and the
rules of the Securities and
Exchange Commission thereunder as in effect on the date hereof) acquires
ownership, directly or indirectly, beneficially or of record, of capital stock
representing more than 30% of the aggregate ordinary voting power represented
by the issued and outstanding stock of Holdings, (b) occupation of a majority
of the seats (other than vacant seats) on the board of directors of



8









 





Holdings by
Persons who were not (i) directors of Holdings on the date hereof, (ii)
nominated by the board of directors of Holdings, or (iii) appointed by
directors so nominated (it being understood that, in the absence of an event
described in clause (a) or (b), the replacement of one or more officers of
Holdings shall not in and of itself constitute a Change in Control), (c)
Holdings at any time ceases to own and control 100% of the capital stock of
Intermediate Holdings, (d) Intermediate Holdings at any time ceases to own and
control 100% of the capital stock of Borrower, (f) Holdings at any time ceases
to, directly or indirectly, own and control 100% of each class of the
outstanding equity interests of each Borrowing Base Guarantor and (g) at any
time a change of control occurs under and as defined in any documentation
relating to any Material Indebtedness.



     “Change in Law” shall mean (a) the adoption of any law, treaty, order,
rule or regulation after the date of this Agreement, (b) any change in any law,
treaty, order, rule or regulation or in the interpretation or application
thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender or Issuing Bank (or for purposes of Section 2.12(b),
by any lending office of such Lender or by such Lender’s or Issuing Bank’s
holding company, if any) with any request, guideline or directive (whether or
not having the force of law) of any Governmental Authority made or issued after
the date of this Agreement.



     “Charges” shall have the meaning assigned to such term in Section 11.13.



     “Chattel Paper” shall mean all “chattel paper,” as such term is defined in
the UCC as in effect on the date hereof in the State of New York, in which any
Person now or hereafter has rights.



     “Class”, when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Swingline Loans and, when used in reference to any Commitment, refers to
whether such Commitment is a Revolving Commitment, Swingline Commitment or LC
Commitment.



     “Closing Date” shall mean October [22], 2004.



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



     “Collateral” shall mean, collectively, all of the Security Agreement
Collateral, the Mortgaged Real Property and all other Property of whatever kind
and nature pledged as collateral under any Security Document.



     “Collateral Agent” shall have the meaning assigned to such term in the
preamble hereto and shall include the Collateral Agent in its capacity as
trustee for the Secured Parties solely for the purposes of English law in
respect of the Collateral which is the subject of the Security Documents and
Foreign Pledge Agreements governed by English law, and each other Person
appointed as the successor pursuant to Article X



     “Collateral Agent Fee” shall have the meaning ascribed to such term in
Section 2.05(b)(ii).



     “Collection Account” shall have the meaning assigned to such term in
Section 9.01(e)(i)



9









 





     “Commercial Letter of Credit” shall mean any letter of credit or similar
instrument issued for the account of Borrower for the benefit of Borrower or
any Borrowing Base Guarantor, for the purpose of providing the primary payment
mechanism in connection with the purchase of materials, goods or services by
Borrower or any Borrowing Base Guarantor in the ordinary course of their
businesses.



     “Commitment” shall mean, with respect to any Lender, such Lender’s
Revolving Commitment, LC Commitment or Swingline Commitment.



     “Commitment Fee” shall have the meaning assigned to such term in Section
2.05(a).



     “Commitments” shall mean the aggregate sum of each Lender’s Commitment.



     “Companies” shall mean Holdings and its Subsidiaries; and “Company” shall
mean any one of them.



     “Compliance Certificate” shall mean a certificate of a Financial Officer
substantially in the form of Exhibit A-2.



     “Concentration Account” shall have the meaning assigned to such term in
Section 9.01(e)(i).



     “Concentration Account Bank” shall have the meaning assigned to such term
in Section 9.01(e)(i).



     “Confidential Information Memoranda” shall mean (a) that certain
confidential offering memorandum dated as of November 19, 2003 with respect to
the proposed issuance by Holdings of the Qualified Senior Notes, (b) that
certain confidential offering memorandum dated as of November 19, 2003 with
respect to the proposed issuance by Holdings of the Convertible Preferred Stock
and (c) that certain prospectus supplement dated as of November 19, 2003 with
respect to the proposed issuance by Holdings of its New Common Stock.



     “Consolidated Companies” shall mean Holdings and its Consolidated
Subsidiaries.



     “Consolidated EBITDA” shall mean, for any applicable measurement period,
Consolidated Net Income for such period, as adjusted by adding thereto (a) any
provision for (or less any benefit from) income and franchise taxes included in
the determination of net income for such period, (b) the amount of Consolidated
Interest Expense, (c) amortization and depreciation deducted in the
determination of net income for such period, (d) amortization of debt discount
and deferred financing costs, capitalized interest, interest paid in kind, (e)
losses (or less gains) from Asset Sales included in the determination of net
income for such period (excluding sales expenses or losses related to current
assets), (f) other non-cash losses (or less gains) included in the
determination of net income for such period and for which no cash outlay
(or cash receipt) is foreseeable, (g) employee severance and other unusual
charges of up to $30.0 million in the aggregate for such period, to the extent
recorded for the financial reporting purposes prior to the first anniversary of
the Original Closing Date and relating to closures of plants located at (i) 37
Cushman St., Taunton MA 02780, (ii) 440 East 8th Street, Marion, IN 46953 and
(iii) 75 Canal St., South Hadley, MA 01075, and (h) with the consent of the



10









 





Administrative Agent, which may be withheld in its reasonable credit judgment,
extraordinary losses (or less gains) included in the determination of net
income during such period, net of related tax effects.



     “Consolidated Fixed Charge Coverage Ratio” shall mean, for any Test
Period, the ratio of (a) Consolidated EBITDA for such Test Period less (i) the
amount of all Capital Expenditures made by Holdings and its Subsidiaries during
such period and (ii) all cash payments in respect of income taxes made during
such period (net of any cash refund in respect of income taxes actually
received during such period) to (b) Consolidated Fixed Charges for such Test
Period.



     “Consolidated Fixed Charges” shall mean, for any period, the sum, without
duplication, of (a) Consolidated Interest Expense for such period; (b) the
scheduled principal amount of all amortization payments on all Indebtedness
(including the principal component of all Capital Lease Obligations) of
Holdings and its Subsidiaries for such period (as determined on the first day
of the respective period); (c) all dividend payments on any series of
Disqualified Capital Stock of Holdings, and (d) all accrued dividends on any
Preferred Stock (other than Disqualified Capital Stock) of Holdings, including
the Convertible Preferred Stock (including dividends payable through the
issuance of Equity Interests to the extent Holdings has not irrevocably
declared such dividends to be payable through the issuance of Equity
Interests). Consolidated Fixed Charges for Test Periods ending March 31, 2004,
June 30, 2004 and September 30, 2004, shall be deemed to be, respectively, the
Consolidated Fixed Charges as calculated for the period commencing on January
1, 2004 and ending on (x) March 31, 2004 and multiplied by 4.0, (y) June 30,
2004 and multiplied by 2.0 and (z) September 30, 2004 and multiplied by 1.333.



     “Consolidated Interest Expense” shall mean, for any period, without
duplication, the total consolidated interest expense of Holdings and its
Consolidated Subsidiaries for such period (calculated without regard to any
limitations on the payment thereof and including commitment fees, letter of
credit fees and net amounts payable under Interest Rate Protection Agreements)
determined in accordance with GAAP plus, without duplication, (a) the portion
of Capital Lease Obligations of Holdings and its Consolidated Subsidiaries
representing the interest factor for such period, (b) imputed interest on
Attributable Indebtedness, (c) cash contributions to any employee stock
ownership plan or similar trust to the extent such contributions are used by
such plan or trust to pay interest or fees to any Person (other than Borrower
or a Wholly Owned Subsidiary) in connection with Indebtedness incurred by such
plan or trust, (d) all interest paid or payable with respect to discontinued
operations, (e) all dividend payments on any series of any Preferred Stock of
any Subsidiary of Holdings (other than any Preferred Stock held by Holding or a
Wholly Owned Subsidiary), and (f) all interest on any Indebtedness of the type
described in clause (f) or (k) of the definition of “Indebtedness” with respect
to Holdings or any of its Subsidiaries.



     “Consolidated Net Income” shall mean, for any period, the consolidated net
income of Holdings and its Consolidated Subsidiaries determined in accordance
with GAAP, but excluding
in any event (a) with the consent of Collateral Agent and Administrative
Agent, which may be withheld in their collective reasonable credit judgment,
after-tax extraordinary gains or extraordinary losses; (b) after-tax gains or
losses realized from (i) the acquisition of any securities, or the
extinguishment or conversion of any Indebtedness or Equity Interest, of
Holdings or any of its Subsidiaries or (ii) any sales of assets (other than
Inventory in the ordinary



11









 





course of business); (c) net earnings or loss of any
other Person (other than a Subsidiary of Holdings) in which Holdings or any
Consolidated Subsidiary has an ownership interest, except (in the case of any
such net earnings) to the extent such net earnings shall have actually been
received by Holdings or such Consolidated Subsidiary (subject to the limitation
in clause (d) below) in the form of cash dividends or distributions; (d) the
net income of any Consolidated Subsidiary to the extent that the declaration or
payment of dividends or similar distributions by such Consolidated Subsidiary
of its net income is not at the time of determination permitted without
approval under applicable law or regulation or under such Consolidated
Subsidiary’s organizational documents or any agreement (except (i) pursuant to
the European Term Loan Documents solely with respect to restrictions on General
Cable Spain’s ability to pay or make dividends and (ii) such other restrictions
as are approved in writing and in advance by the Administrative Agent) or
instrument applicable to such Consolidated Subsidiary or its stockholders; (e)
gains or losses from the cumulative effect of any change in accounting
principles; (f) earnings resulting from any reappraisal, revaluation or
write-up of assets; and (g) the income (or loss) of any Person accrued prior to
the date it becomes a Subsidiary of Holdings or any Consolidated Subsidiary or
is merged into or consolidated with Holdings or any Consolidated Subsidiary or
that Person’s assets are acquired by Holdings or such Consolidated Subsidiary.



     “Consolidated Subsidiary” shall mean, as to any Person, all Subsidiaries
of such Person which are consolidated with such Person for financial reporting
purposes in accordance with GAAP.



     “Contested Collateral Lien Conditions” shall mean, with respect to any
Permitted Lien of the type described in paragraphs (a), (b) and (f) of Section
6.02, the following conditions:




     (a) any Loan Party shall be contesting such Lien in good faith;




     (b) to the extent such Lien is in an amount in excess of $250,000,
in the aggregate with all other such Liens, the Collateral Agent shall
have established a Reserve (to the extent of such Lien on Eligible
Accounts, Eligible Inventory, Eligible Equipment or Eligible Real
Property) with respect thereto or obtained a bond in an amount sufficient
to pay and discharge such Lien and the Collateral Agent’s reasonable
estimate of all interest and penalties related thereto; and




     (c) such Lien shall in all respects be subject and subordinate in
priority to the Lien and security interest created and evidenced by the
Security Documents, except if and to the extent that the law or
regulation creating, permitting or authorizing such Lien provides that
such Lien is or must be superior to the Lien and security interest
created and evidenced by the Security Documents.



     “Contingent Obligation” shall mean, as to any Person, any obligation,
agreement, understanding or arrangement of such Person guaranteeing or intended
to guarantee any Indebtedness, leases, dividends or other obligations (“primary
obligations”) of any other Person (the “primary obligor”) in any manner,
whether directly or indirectly, including, without limitation, any obligation
of such Person, whether or not contingent, (a) to purchase any such primary
obligation or any Property constituting direct or indirect security therefor;
(b) to advance



12









 





or supply funds (i) for the purchase or payment of any such
primary obligation or (ii) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor; (c) 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; (d) with
respect to bankers’ acceptances and letters of credit, until a reimbursement
obligation arises; or (e) otherwise to assure or hold harmless the holder of
such primary obligation against loss in respect thereof; provided, however,
that the term “Contingent Obligation” shall not include endorsements of
instruments for deposit or collection in the ordinary course of business or any
product warranties for deposit or collection in the ordinary course of
business. The amount of any Contingent Obligation shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Contingent Obligation is made (or, if less, the maximum
amount of such primary obligation for which such Person may be liable, whether
severally or jointly, pursuant to the terms of the instrument evidencing such
Contingent Obligation) or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.



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



     “Convertible Preferred Stock” shall mean Holdings’ 5.75% Series A
Redeemable Convertible Preferred Stock of Holdings, par value $0.01 per share,
liquidation preference $50 per share, issued pursuant to the Convertible
Preferred Stock Documents.



     “Convertible Preferred Stock Documents” shall mean the Certificate of
Designations relating to the Convertible Preferred Stock, the Convertible
Preferred Stock Purchase Agreement and other documents pursuant to which the
Convertible Preferred Stock is issued and all other documents executed and
delivered with respect to the Convertible Preferred Stock, in each case in the
form delivered to the Administrative Agent prior to the Original Closing Date.



     “Cost” shall mean, as determined by Collateral Agent in good faith, with
respect to Inventory, the lower of (a) landed cost computed on a first-in
first-out basis in accordance with GAAP or (b) market value; provided, that for
purposes of the calculation of the Borrowing Base, (i) the Cost of the
Inventory shall not include: (A) the portion of the cost of Inventory equal to
the profit earned by any Affiliate on the sale thereof to Borrower or the
Borrowing Base Guarantors, (B) write-ups or write-downs in cost with respect to
currency exchange rates, or (C) as determined by the Collateral Agent in the
Collateral Agent’s reasonable credit judgment, any costs associated with
shipping, handling, customs duties, or other in-bound freight charges, and (ii)
notwithstanding anything to the contrary contained herein, the cost of the
Inventory shall
be computed in the same manner and consistent with the most recent
Inventory Appraisal which has been received and approved by Collateral Agent in
its reasonable discretion.



     “Credit Extension” shall mean, as the context may require, (a) the making
of a Loan by a Lender or (b) the issuance of any Letter of Credit, or the
amendment, extension or renewal of any existing Letter of Credit, by the
Issuing Bank, in each case, whether pursuant to the Prior



13









 





Credit Agreement or
this Agreement; provided, that “Credit Extensions” shall include conversions
and continuations of outstanding Revolving Loans.



     “Debt Issuance” shall mean the incurrence by Holdings, Intermediate
Holdings, Borrower or any of their Subsidiaries of any Indebtedness after the
Original Closing Date (other than as permitted by Section 6.01).



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



     “Default Allocation Percentage” as to any Lender shall mean the quotient
(determined as a percentage) determined as of the date of an Event of Default,
whose numerator equals the principal, interest, fees and other Obligations
owing to such Lender (including all advances made by such Lender following such
Event of Default) plus the amount of such Lender’s marked-to-market exposure
under Specified Hedging Agreements as of such date and whose denominator equals
the principal, interest, fees and other Obligations owing to all Lenders
(including all advances made by the Lenders following such Event of Default)
plus the amount of all Lenders’ marked-to-market exposure under Specified
Hedging Agreements as of such date.



     “Deposit Account Control Agreement” means an agreement, in form and
substance satisfactory to Collateral Agent, among Collateral Agent, Borrower or
a Guarantor maintaining a deposit account at any bank, and such bank, which
agreement provides that (a) such bank shall comply with instructions originated
by Collateral Agent directing disposition of the funds in such deposit account
without further consent by Borrower or such Guarantor (as applicable), and (b)
such bank shall agree that it shall have no Lien on, or right of setoff
against, such deposit account or the contents thereof, other than in respect of
commercially reasonable fees and other items expressly consented to by
Collateral Agent, and containing such other terms and conditions as Collateral
Agent may require, including as to any such agreement pertaining to any Blocked
Account, providing that all items received or deposited in such Blocked Account
are the property of Collateral Agent, and that such bank shall wire, or
otherwise transfer, in immediately available funds, on a daily basis to the
Concentration Account, or, in the case of the Concentration Account, to the
Collection Account, all funds received or deposited into such Blocked Account.



     “Disqualified Capital Stock” shall mean any Equity Interest (other than
Convertible Preferred Stock) which, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable), or upon
the happening of any event, (a) matures (excluding any maturity as the result
of an optional redemption by the issuer thereof) or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or is redeemable at the
option of the holder thereof, in whole or in part, on or prior to the first
anniversary of the Maturity Date, (b) is convertible into or exchangeable
(unless at the sole option of the issuer thereof) for (i) debt
securities or (ii) any Equity Interests referred to in (a) above, in each
case at any time prior to the first anniversary of the Maturity Date, or (c)
contains any repurchase obligation which may come into effect prior to payment
in full of all Obligations.



     “Documentation Agent” shall have the meaning assigned to such term in the
preamble hereto.



14









 





     “Documents” shall mean all “documents,” as such term is defined in the UCC
as in effect on the date hereof in the State of New York, in which any Person
now or hereafter has rights.



     “Dollar Equivalent” shall mean, as to any amount denominated in Canadian
Dollars or any other currency as of any date of determination, the amount of
Dollars that would be required to purchase the amount of Canadian Dollars or
such other currency based upon the spot selling rate at which the
Administrative Agent offers to sell Canadian Dollars or such other currency for
Dollars in the London foreign exchange market at approximately 11:00 a.m.
London time on such date for delivery two (2) Business Days later.



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



     “Domestic” shall mean, as to any Person, a Person which is created or
organized under the laws of the United States, any of its states or the
District of Columbia.



     “Eligible Accounts” shall have the meaning assigned to such term in
Section 2.19(a).



     “Eligible Consigned Inventory” shall mean Eligible Inventory of Borrower
or Borrowing Base Guarantor on consignment (A) on a location at which the
aggregate Cost of such Eligible Inventory is no less than $100,000, (B) with a
consignee of Borrower or Borrowing Base Guarantor with respect to which the
aggregate Cost of such consigned Eligible Inventory is not less than $500,000,
and (C) with respect to which Collateral Agent shall have received, in each
case in form and substance satisfactory to Collateral Agent:



     (a) a valid consignment agreement or arrangement which is reasonably
satisfactory to Collateral Agent is in place with respect to such Eligible
Inventory;



     (b) UCC searches against the consignee in those jurisdictions in which
such Eligible Inventory is subject to consignment and the jurisdiction in which
the consignee is organized or maintains its principal place of business and
such other searches that the Collateral Agent deems necessary or appropriate;



     (c) UCC-1 financing statements between the consignee and the Borrower or
Borrowing Base Guarantor, as consignor, in form and substance satisfactory to
Collateral Agent, which are duly assigned to Collateral Agent;



     (d) a written notice to any lender to the consignee of the first priority
security interest in such Eligible Inventory of Collateral Agent; and



     (e) an agreement in writing, in form and substance satisfactory to
Collateral Agent, from the consignee, pursuant to which such consignee, inter
alia, acknowledges the first priority security interest of Collateral Agent in
such Collateral, agrees to waive any and all claims such consignee may, at any
time, have against such Collateral, whether for processing, storage, breach of
warranty (with respect to prior purchases) or otherwise, and agrees to permit
Collateral Agent access to the premises of such consignee so as to remove such
Collateral from such premises and, in the case of any consignee who at any time
has custody, control or possession of any



15









 





Collateral, acknowledges that it
holds and will hold possession of the Collateral for the benefit of Collateral
Agent and agrees to follow all instructions of Collateral Agent with respect
thereto.



Notwithstanding the foregoing upon reasonable request of Borrower and upon
Collateral Agent receiving evidence satisfactory to it that the applicable
consignee has no secured creditors, Collateral Agent may in its discretion
waive the requirements of clauses (c) and (d) above, but such waiver may be
revoked by the Collateral Agent at any time upon five Business Days written
notices to Borrower; provided, that the amount of the Borrowing Base which may
be determined on the basis of Eligible Consigned Inventory which is eligible
because of Collateral Agent’s waiver of the requirements of clauses (c) and (d)
above shall not exceed $10.0 million at any time.



     “Eligible Equipment” shall mean any Equipment owned by Borrower or
Borrowing Base Guarantor which is acceptable to Collateral Agent in its
reasonable credit judgment for lending purposes and which, without limiting
Collateral Agent’s discretion, meets, and so long as it continues to meet, the
following requirements:



     (a) is located at one of the business locations in the United States or
Canada of such Persons set forth on Schedule 1.01(e),



     (b) is subject to a valid and perfected first priority lien in favor of
Collateral Agent,



     (c) is owned by Borrower or Borrowing Base Guarantor free and clear of all
liens and rights of any other Person, except the valid and perfected first
priority Lien in favor of Collateral Agent and Permitted Liens, if any, which
are subordinated to the Lien of Collateral Agent,



     (d) does not breach any of the representations or warranties pertaining to
such property set forth in this Agreement or the other Loan Documents,



     (e) is covered by insurance reasonably acceptable to Collateral Agent,




     (f) is appraised by an independent appraisal or audit firm designated by
Collateral Agent and reasonably acceptable to Borrower, and



     (g) is not ineligible by virtue of one or more of the criteria set forth
below; provided, however, that such criteria may be revised from time to time
by Collateral Agent in its reasonable credit judgment to address the results of
any audit or appraisal performed by Collateral Agent from time to time after
the date hereof.



An item of Equipment shall be excluded from Eligible Equipment if:



     (i) Borrower or Borrowing Base Guarantor does not have good, valid, and
marketable title thereto;



     (ii) it is located on real property leased by Borrower or Borrowing Base
Guarantor, unless it is subject to a Landlord Lien Waiver and Access Agreement
executed by the lessor, or other third party, as the case may be, and unless it
is segregated or otherwise separately identifiable from goods of other Persons,
if any, stored on the premises;



16









 





     (iii) it is damaged, defective or obsolete, or it constitutes furnishings,
parts, fixtures or is affixed to Real Property, unless such Equipment is
affixed to the Mortgaged Real Property listed on Schedule 1.01(e);



     (iv) Collateral Agent has not received evidence of the property or
casualty insurance required by this Agreement with respect to such Equipment;



     (v) it is subject to a lease with any Person (other than a Borrower or a
Borrowing Base Guarantor, provided, that the Lien on and security interest in
the related lease shall be granted to the Collateral Agent and Collateral Agent
shall have received all control agreements and instruments and all actions
shall be taken as reasonably requested by the Collateral Agent to perfect the
Collateral Agent’s security interest in such lease); or



     (vi) it is located at an owned location subject to a mortgage in favor of
a lender other than the Collateral Agent (unless a reasonably satisfactory
mortgagee waiver has been delivered to the Collateral Agent) or the removal of
which is subject to restrictions relating to financing arrangement, including
any industrial revenue bond financing.



     “Eligible Inventory” shall mean, subject to adjustment as set forth in
Section 2.19(b), items of Inventory of the Borrower and a Borrowing Base
Guarantor.



     “Eligible Real Property” shall mean the Real Properties which (a) are
located at (i) 101 Pleasant Valley Boulevard, Altoona, Pennsylvania 16603
(Blair County) owned in fee simple by Borrower, (ii) 1453 South Washington,
DuQuoin, Illinois 62832 (Perry County) owned in fee simple by Borrower , (iii)
1381 By-Pass North, Lawrenceburg, Kentucky 40342 (Anderson County) owned in
fee simple by Intermediate Holdings, (iv) Three Carol Drive, Lincoln, Rhode
Island 2865 (Town of Lincoln) owned in fee simple by General Cable LLC, (v)
Highway 27 West, Malvern, Arkansas 72105 owned in fee simple by Borrower, (vi)
P.O. Box 430, US highway 80, Marshall, Texas 75688 (Harrison County), owned in
fee simple by Borrower and (vii) 4 Tesseneer Drive, Highland Heights, Kentucky
41076, improvements to which are owned by Intermediate Holdings and which is
subject to that certain Amended and Restated Ground Lease with Option to
Purchase, dated July 26, 1992, between Northern Kentucky University Foundation,
Inc., a Kentucky non-profit corporation and General Cable Technologies (by
assignments from Holdings), or (b) are owned by Borrower or a Borrowing Base
Guarantor and designated from time to time by the Collateral Agent as being
Eligible Real Property, provided, that with respect to each such parcel of
Eligible Real Property, each of the improvements thereon is acceptable to the
Collateral Agent in its reasonable credit judgment for lending purposes and
each of which, without limiting such reasonable credit judgment, meets, or
continues to meet, the following requirements: (i) it is subject to a first
priority mortgage or leasehold mortgage and
lien in favor of Collateral Agent, (ii) it is owned by the Borrower and
applicable Borrowing Base Guarantor free and clear of all liens and rights of
any other Person, except the mortgage or leasehold mortgage and lien in favor
of Collateral Agent and Permitted Liens which are subordinate to such mortgage
liens of the Collateral Agent, (iii) it does not breach any of the
representations or warranties pertaining to such property set forth in this
Agreement or the other Loan Documents, (iv) it is covered by title insurance
with respect to the Lien of Collateral Agent and casualty and property
insurance reasonably acceptable to the Collateral Agent, (v) it is appraised by
an independent appraisal or audit firm designated by Collateral Agent and



17









 





reasonably acceptable to Borrower and (vi) it is the subject of an
environmental report reasonably acceptable to Collateral Agent.



     “Environment” shall mean ambient air, surface water and groundwater
(including, without limitation, potable water, navigable water and wetlands),
the land surface or subsurface strata, natural resources, the workplace or as
otherwise defined in any Environmental Law.



     “Environmental Claim” shall mean any claim, notice, demand, order, action,
suit, proceeding or other communication in each case alleging liability for
investigation, remediation, removal, cleanup, response, corrective action,
damages to natural resources, personal injury, Property damage, fines,
penalties or other costs resulting from, related to or arising out of (i) the
presence, Release or threatened Release in or into the Environment of Hazardous
Material at any location or (ii) any violation of Environmental Law, and shall
include, without limitation, any claim seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting
from, related to or arising out of the presence, Release or threatened Release
of Hazardous Material or alleged injury or threat of injury to health, safety,
the Environment.



     “Environmental Law” shall mean any and all applicable present and future
treaties, laws, statutes, ordinances, regulations, rules, decrees, orders,
judgments, consent orders, consent decrees or other binding requirements, and
the common law, relating to protection of public health or the Environment, the
Release or threatened Release of Hazardous Material, natural resources or
natural resource damages, or occupational safety or health.



     “Environmental Permit” shall mean any permit, license, approval, consent
or other authorization required by or from a Governmental Authority under
Environmental Law.



     “Equipment” shall mean, as to any Person, all of such Person’s now owned
and hereafter acquired equipment, wherever located, including machinery, data
processing and computer equipment (whether owned or licensed and including
embedded software), vehicles, tools, furniture, fixtures, all attachments,
accessions and property now or hereafter affixed thereto or used in connection
therewith, and substitutions and replacements thereof, wherever located.



     “Equity Financing” shall mean the offering of Convertible Preferred Stock
by Holdings on or prior to the Original Closing Date in an amount not less than
$90.0 million and offering of New Common Stock on or prior to the Original
Closing Date in an amount of not less than $41.0 million.



     “Equity Financing Documents” shall mean the applicable Confidential
Information Memoranda and any other documents pursuant to which the Convertible
Preferred Stock and
New Common Stock are issued and all other documents, instruments or
agreements executed and delivered with respect to the Convertible Preferred
Stock or the New Common Stock.



     “Equity Interest” shall mean, with respect to any Person, any and all
shares, interests, participations or other equivalents, including membership
interests (however designated, whether voting or non-voting), of equity of such
Person, including, if such Person is a partnership, partnership interests
(whether general or limited) and any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of



18









 





assets of, such partnership, whether outstanding on, or
issued after, the Original Closing Date, but excluding debt securities
convertible or exchangeable into such equity.



     “Equity Issuance” shall mean, without duplication, any issuance or sale
after the Original Closing Date of (a) any Equity Interests (including any
Equity Interests issued upon exercise of any warrant or option) or any warrants
or options to purchase Equity Interests or (b) any other security or instrument
representing an Equity Interest (or the right to obtain any Equity Interest) in
the issuing or selling Person.



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



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



     “ERISA Event” shall mean (a) any “reportable event,” as such term is
defined in Section 4043(c) of ERISA or the regulations issued thereunder, with
respect to a Plan (other than an event for which the 30-day notice period is
waived by regulation); (b) the existence with respect to any Plan of an
“accumulated funding deficiency” (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived, the failure to make by its due
date a required installment under Section 412(m) of the Code with respect to
any Plan or the failure to make any required contribution to a Multiemployer
Plan; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by any Company or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by any Company or any of its ERISA
Affiliates from the PBGC or a plan administrator of any notice relating to the
intention to terminate any Plan or Plans or to appoint a trustee to administer
any Plan, or the occurrence of any event or condition which could reasonably be
expected to constitute grounds under ERISA for the termination of, or the
appointment of a trustee to administer, any Plan; (f) the incurrence by any
Company or any of its ERISA Affiliates of any liability with respect to the
withdrawal from any Plan or Multiemployer Plan; (g) the receipt by any Company
or its ERISA Affiliates of any notice, concerning the imposition of Withdrawal
Liability or a determination that a Multiemployer Plan is, or is expected to
be, insolvent or in reorganization, within the meaning of Title IV of ERISA;
(h) the making of any amendment to any Plan which could result in the
imposition of a lien or the posting of a bond or other security; and (i) the
occurrence of a nonexempt prohibited transaction
(within the meaning of Section 4975 of the Code or Section 406 of ERISA)
which could result in liability to any Company.



     “Euro”, “euro” “euros” or “EUR” shall mean the single currency of
Participating Member States.



     “Eurodollar Revolving Borrowing” shall mean a Borrowing comprised of
Eurodollar Revolving Loans.



19









 





     “Eurodollar Revolving Loan” shall mean any Revolving Loan bearing interest
at a rate determined by reference to the Adjusted LIBOR Rate in accordance with
the provisions of Article II.



     “European Term Loan” shall mean the term loan and/or revolving financing
to be provided to General Cable Spain by Banco Bilbao Vizcaya Argentaria, S.A.
in the original principal amount of not less than the Dollar Equivalent of EUR
30 million.



     “European Term Loan Documents” shall mean the agreement providing for the
European Term Loan and all other related documents, instruments and agreements
(and any amendments or other modification thereto), each in form and substance
as approved by the Administrative Agent, in its reasonable credit judgment, in
advance and in writing, which documentation shall not include any restriction
other than those approved by the Administrative Agent on the ability of General
Cable Spain to make payments on intercompany loans or other obligations of
General Cable Spain to any Loan Party.



     “Event of Default” shall have the meaning assigned to such term in Article
VIII.



     “Excess Availability” shall mean (a) the lesser of (i) the Revolving
Commitments of all of the Lenders and (ii) the Borrowing Base on the date of
determination less (b) all outstanding Loans and LC Exposure less (c) in
Collateral Agent’s reasonable discretion, the aggregate amount of all the
outstanding and unpaid trade payables and other obligations of Borrower and/or
its Borrowing Base Guarantors which are not paid within 60 days past the due
date according to their original terms of sale, in each case as of such date of
determination less (d) in Collateral Agent’s reasonable discretion, the amount
of checks issued by Borrower and/or its Borrowing Base Guarantors to pay trade
payables and other obligations which are not paid within 60 days past the due
date according to their original terms of sale, in each case as of such date of
determination, but which either have not yet been sent or are subject to other
arrangements which are expected to delay the prompt presentation of such checks
for payment.



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



     “Excluded Taxes” shall mean, with respect to the Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States, or by
the jurisdiction under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which
its applicable lending office is located, and (b) in the case of a Foreign
Lender (other than an assignee pursuant to a request by Borrower under Section
2.16), any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement (or designates a new lending office)
or is attributable to such Foreign Lender’s failure to comply with Section
2.15(e), except to the extent that such Foreign Lender (or its assignor, if
any) was entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from Borrower with respect to such
withholding tax pursuant to Section 2.15(a) (it being understood and agreed,
for the avoidance of doubt, that any withholding tax imposed on a Foreign
Lender as a result of a Change in Law or regulation or



20









 





interpretation thereof
occurring after the time such Foreign Lender became a party to this Agreement
shall not be an Excluded Tax).



     “Existing ABR Borrowings” shall mean all ABR Borrowings advanced under the
Prior Credit Agreement and outstanding on the Closing Date.



     “Existing Eurodollar Revolving Borrowings” shall mean all Eurodollar
Revolving Borrowings advanced under the Prior Credit Agreement and outstanding
on the Closing Date.



     “Existing Obligations” shall mean the “Obligations”, as defined in the
Prior Credit Agreement.



     “Fair Market Value” shall mean, with respect any asset, the price (after
taking into account any liabilities relating to such assets) which could be
negotiated in an arm’s length free market transaction, for cash, between a
willing seller and a willing and able buyer, neither of which is under any
compulsion to complete the transaction.



     “FALV Amortization Factor” shall mean 1 minus a fraction, the numerator of
which is the number of calendar quarters elapsed as of any date of
determination since December 31, 2003 (but in no event more than 28) and the
denominator of which is 28.



     “Federal Funds Effective Rate” shall mean, for any day, the weighted
average of the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day that is a Business Day, the
average of the quotations for the day for such transactions received by the
Administrative Agent from three federal funds brokers of recognized standing
selected by it.



     “Fee Letter” shall mean that certain letter, dated as of the date hereof,
among Borrower, Merrill and UBS with respect to certain Fees to be paid from
time to time by Borrower to Merrill and UBS.



     “Fees” shall mean the Commitment Fees, the Administrative Agent Fees, the
Collateral Agent Fees, the LC Participation Fees, the Fronting Fees and any and
all fees payable to pursuant to this Agreement or any of the other Loan
Documents.



     “Financial Officer” of any Person shall mean the Chief Financial Officer,
principal accounting officer, Treasurer or Controller of such Person.



     “FIRREA” shall mean the Federal Institutions Reform, Recovery and
Enforcement Act of 1989.



     “Fixed Asset Loan Value” shall mean an amount equal to the sum of (a) the
advance rate of 80% of the appraised net orderly liquidation value of the
Eligible Equipment of the Person owning such Eligible Equipment plus (b) the
advance rate of 60% of the appraised fair market value of the Eligible Real
Property of the Person owning such Eligible Real Property. The appraised net
orderly liquidation value of Eligible Equipment and the appraised fair market
value of Eligible Real Property are set forth on Schedule 1.01(d), as Schedule
1.01(d) may be



21









 





amended from time to time as provided herein. The Fixed Asset
Loan Value of Borrower and each of the Borrowing Base Guarantors as of the
Original Closing Date is $44.0 million. If any Eligible Equipment or Eligible
Real Property listed on Schedule 1.01(d) is sold, liquidated or otherwise
ceases to be Eligible Equipment or Eligible Real Property, the calculation of
the Fixed Asset Loan Value of the Person who owns such Eligible Equipment or
Eligible Real Property shall be reduced by the appraised net orderly
liquidation value of such Eligible Equipment or the appraised fair market value
of such Eligible Real Property and such Eligible Equipment and Eligible Real
Property shall be deleted from Schedule 1.01(d) and Collateral Agent shall
correspondingly amend Schedule 1.01(d) without any further action of any party
hereto. At the request of Borrower, the Collateral Agent and may consider
adding Eligible Equipment and/or Eligible Real Property to Schedule 1.01(d),
and if the Collateral Agent determine that the requested Eligible Equipment and
Eligible Real Property is to be added to Schedule 1.01(d), then, upon
completion of appraisals satisfactory to Collateral Agent conducted at
Borrower’s cost and expense, the appraised net orderly net orderly liquidation
value of any additional Eligible Equipment or the appraised fair market value
of any additional Eligible Real Property shall be included in the calculation
of the Fixed Asset Loan Value of the Person who owns such Eligible Equipment or
Eligible Real Property and such Eligible Equipment and Eligible Real Property
shall be added to Schedule 1.01(d) and Collateral Agent shall correspondingly
amend Schedule 1.01(d) without any further action of any party hereto.



     “Foreign” shall mean, as to any Person, a Person which is not created or
organized under the laws of the United States, any of its States or the
District of Columbia, or Canada, or any Province thereof.



     “Foreign Credit Lines” shall mean any and all committed or uncommitted
credit lines and invoice, commercial paper or draft discounting and other
similar credit facilities of Foreign Subsidiaries from banks or other financial
institutions which are currently or may in the future become available for such
Foreign Subsidiaries, other than any such lines or facilities the utilization
of which require that the relevant Foreign Subsidiaries satisfy conditions
which cannot currently be met; the amount of any Foreign Credit Line shall
refer to the maximum amount that can currently be outstanding to the respective
Foreign Subsidiaries under such lines or facilities, including, without
limitation, the face amount of letters of credit and contingent obligations
with respect to guaranties and similar obligations issued in relation or
pursuant thereto.



     “Foreign Guaranties” shall mean the Canadian Guaranty and the Mexican
Guaranty.



     “Foreign Guarantors” shall mean General Cable de Mexico del Norte SA de
CV, a Mexican corporation and General Cable de Latinoamerica, SA de CV, a
Mexican corporation.



     “Foreign Lender” shall mean any Lender that is not, for United States
federal income tax purposes, (i) a citizen or resident of the United States,
(ii) a corporation or entity treated as a
corporation created or organized in or under the laws of the United
States, or any political subdivision thereof, (iii) an estate the income of
which is subject to U.S. federal income taxation regardless of its source or
(iv) a trust if a court within the United States is able to exercise primary
supervision over the administration of such trust and one or more United States
Persons have the authority to control all substantial decisions of such trust.



22









 





     “Foreign Plan” shall mean any employee benefit plan, program, policy,
arrangement or agreement maintained or contributed to by any Foreign Company
with respect to employees employed outside the United States.



     “Foreign Pledge Agreements” shall mean those certain agreements, dated as
of the Original Closing Date, (a) by Borrower pledging 65% of Equity Interests
in General Cable Property Holdings Limited, governed by Jersey law, (b) by
Intermediate Holdings pledging 65% of Equity Interests in General Cable
Investments, SGPS SA, governed by Madeira law, (c) by Intermediate Holdings
pledging 65% of Equity Interests in General Cable Holdings Netherlands C.V.,
governed by the law of the Netherlands, (d) by Intermediate Holdings pledging
65% of Equity Interests in General Cable Holdings (UK) Limited, governed by
English law, (e) by Borrower pledging 65% of Equity Interests in General Cable
Services Limited, governed by English law, (f) by Intermediate Holdings and
Borrower pledging 100% of Equity Interests in General Cable de Mexico del Norte
SA de CV, governed by Mexican law, (g) by Borrower and General Cable
Technologies pledging 100% of Equity Interests in General Cable Holdings de
Mexico SA de CV, governed by Mexican law, and (h) by Intermediate Holdings
pledging 65% of Equity Interests in General Cable Holdings (Spain) SRL,
governed by Spanish law, in each case in favor of the Collateral Agent and in
each case as the same may from time to time be modified, amended, extended or
reaffirmed in accordance with the terms hereof and with the consent of
Collateral Agent.



     “Fronting Fees” shall have the meaning assigned to such term in Section
2.05(c).



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



     “GCC Spain Intercompany Debt” shall mean the GCC Spain Refinancing
Intercompany Debt, the GCC Spain Pre-Closing Intercompany Debt and the GCC
Spain Post-Closing Intercompany Debt, each to the extent permitted by Section
6.01(i) and Section 6.04.



     "GCC Spain Refinancing Intercompany Debt” shall mean the unsecured
Indebtedness owing by General Cable Spain Holdings to Holdings arising due to
repayment in full of obligations of General Cable Spain Holdings under the
applicable agreements listed on Schedule 1.01(b) with the proceeds of an
intercompany advance made by Holdings to General Cable Spain Holdings on or
before the Original Closing Date in anticipation of the Refinancing.



     “General Cable Canada” shall mean General Cable Company, a Nova Scotia
corporation.



     “General Cable LLC” shall mean General Cable Industries, LLC, a Delaware
limited liability company.



     “General Cable Spain” shall mean Grupo General Cable Sistemas, S.A., a
Spanish corporation.



     “General Cable Spain Holdings” shall mean General Cable Holdings (Spain),
SRL, a Spanish limited liability company.



23









 





     “GCC Spain Post-Closing Intercompany Debt” shall mean the unsecured
Indebtedness owing by General Cable Spain to Borrower in the principal amount
of the Dollar Equivalent of up to $1.0 million by reason of intercompany
advances made by Borrower to General Cable Spain after the Original Closing
Date.



     “GCC Spain Pre-Closing Intercompany Debt” shall mean the unsecured
Indebtedness owing by General Cable Spain Holdings to Holdings in the principal
amount of the Dollar Equivalent of $35.0 million by reason of intercompany
advances made by Holdings to General Cable Spain Holdings prior to the Original
Closing Date.



     “General Cable Technologies” shall mean General Cable Technologies Corp.,
a Delaware corporation.



     “General Cable Texas” shall mean General Cable Texas Operations L.P., a
Delaware limited partnership.



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



     “Governmental Real Property Disclosure Requirements” shall mean any
Requirement of Law of any Governmental Authority requiring notification of the
buyer, lessee, mortgagee, assignee or other transferee of any Real Property,
facility, establishment or business, or notification, registration or filing to
or with any Governmental Authority, in connection with the sale, lease,
mortgage, assignment or other transfer (including, without limitation, any
transfer of control) of any Real Property, facility, establishment or business,
of the actual or threatened presence or Release in or into the Environment, or
the use, disposal or handling of Hazardous Material on, at, under or near the
Real Property, facility, establishment or business to be sold, leased,
mortgaged, assigned or transferred.



     “Guaranteed Obligations” shall have the meaning assigned to such term in
Section 7.01.



     “Guarantees” shall mean the guarantees issued pursuant to Article VII and
Foreign Guaranties.



     “Guarantor” shall mean each Borrowing Base Guarantor, each Domestic
Subsidiary listed on Schedule 1.01(c), General Cable Canada Ltd., an Ontario
corporation, each Foreign Guarantor and each other Subsidiary that is or
becomes a party to this Agreement pursuant to Section 5.11.



     “Hazardous Materials” shall mean the following: hazardous substances;
hazardous wastes; polychlorinated biphenyls (“PCBs”) or any substance or
compound containing PCBs;
asbestos or any asbestos-containing materials in any form or condition;
radon or any other radioactive materials including any source, special nuclear
or by-product material; petroleum, crude oil or any fraction thereof; and any
other pollutant or contaminant or hazardous, toxic or dangerous chemicals,
wastes, materials, compounds, constituents or substances, as all such terms are
used in their broadest sense and defined by or under any Environmental Laws.



24









 





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



     “Hedging Reserve” shall mean a Reserve determined by the Collateral Agent
in its reasonable credit judgment and giving effect to the aggregate amount
owing to Borrower or the applicable Borrowing Base Guarantor by a counterparty
to a Specified Hedging Agreement, less the amount Borrower or the applicable
Borrowing Base Guarantor, as applicable, owes such counterparty thereunder,
less the aggregate amount of Property pledged to cash collateralize such
obligation (other than the Collateral granted under the Loan Documents), in
each case based on a mark-to-market analysis and with due regard to recent
market volatility as of the last Business Day of the month (or if not
available, the nearest prior Business Day for which such evaluation is
available).



     “Holding Companies” shall mean Holdings, Intermediate Holdings, Marathon
Manufacturing Holdings, Inc., a Delaware corporation, General Cable Management,
LLC, a Delaware limited liability company and General Cable Overseas Holdings,
Inc., a Delaware corporation, General Cable Investments, SGPS SA, a Madeira
corporation, General Cable Holdings de Mexico SA de CV, a Mexican corporation,
General Cable Holdings New Zealand, a New Zealand corporation, General Cable
Holdings (Spain) SRL, a Spanish corporation, General Cable Holdings Netherlands
C.V., a Dutch corporation, and General Cable Holdings (UK) Limited, an English
corporation.



     “Holdings” shall mean General Cable Corporation, a Delaware corporation.



     “Inactive Subsidiaries” shall mean Genca Corporation, a Delaware
corporation, Diversified Contractors, Inc., a Delaware corporation, MLTC
Company, a Delaware corporation, Marathon Steel Company, an Arizona
corporation, General Cable Canada Ltd., an Ontario corporation, General Cable
Property Holdings Limited, a Jersey corporation, General Cable Service Limited,
organized under the laws of England and Wales and General Cable Export Sales
Corporation, a Barbados corporation.



     “Incorporated Borrowing Base” shall mean at any time, for each Borrowing
Base Guarantor, subject to adjustment as provided in Section 2.19, an amount
equal to the lesser of :



     (a) the sum of, without duplication:



          (i) the book value of Eligible Accounts of such Borrowing Base Guarantor
multiplied by the advance rate of 85%, plus



          (ii) the lesser of (A) the advance rate of 60% of the Cost of Eligible
Inventory of such Borrowing Base Guarantor, or (B) the advance rate of 85% of
the Net Recovery Cost Percentage multiplied by the Cost of Eligible Inventory
of such Borrowing Base Guarantor, plus



          (iii) at Borrower’s request, if and to the extent Borrower’s Fixed Asset
Loan Value is less than $40.0 million, the Fixed Asset Loan Value of such
Borrowing Base Guarantor multiplied by FALV Amortization Factor; provided, that
the aggregate of the Fixed Asset Loan



25









 





Values of Borrower and the Borrowing Base
Guarantors shall in no event exceed $40.0 million, minus



          (iv) in the case of the Incorporated Borrowing Base of General Cable
Canada, the Canadian Priority Payment Reserve, or



     (b) with respect to all Borrowing Base Guarantors except for Holdings,
Intermediate Holdings and General Cable Canada, the applicable Borrowing Base
Guarantor Intercompany Loan Account.



     “Indebtedness” of any Person shall mean, without duplication, (a) all
obligations of such Person for borrowed money or advances; (b) all obligations
of such Person evidenced by bonds, debentures, notes or similar instruments;
(c) all obligations of such Person upon which interest charges are customarily
paid or accrued; (d) all obligations of such Person under conditional sale or
other title retention agreements relating to Property purchased by such Person;
(e) all obligations of such Person issued or assumed as the deferred purchase
price of Property or services (excluding trade accounts payable and accrued
obligations incurred in the ordinary course of business on normal trade terms
and not overdue by more than 90 days); (f) all Indebtedness of others secured
by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on Property owned or
acquired by such Person, whether or not the obligations secured thereby have
been assumed; (g) all Capital Lease Obligations, Purchase Money Obligations and
synthetic lease obligations of such Person; (h) all obligations of such Person
in respect of Hedging Agreements to the extent required to be reflected on a
balance sheet of such Person; (i) all Attributable Indebtedness of such Person;
(j) all obligations for the reimbursement of any obligor in respect of letters
of credit, letters of guaranty, bankers’ acceptances and similar credit
transactions; and (k) all Contingent Obligations of such Person in respect of
Indebtedness or obligations of others of the kinds referred to in clauses (a)
through (j) above. 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 that terms of such Indebtedness provide that such
Person is not liable therefor. For the avoidance of doubt, the
reclassification of the Convertible Preferred Stock pursuant to SFAS 150 or
otherwise in accordance with GAAP shall not be deemed to be Indebtedness
hereunder.



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



     “Indemnitee” shall have the meaning assigned to such term in Section

11.03(b).



     “Information” shall have the meaning assigned to such term in Section
11.12.



     “Instruments” shall mean all “instruments,” as such term is defined in the
UCC as in effect on the date hereof in the State of New York, in which any
Person now or hereafter has rights.



     “Intellectual Property” shall have the meaning assigned to such term in
Section 3.05(c).



26









 





     “Intercompany Agreements” shall mean the agreements listed on Schedule
1.01(f), each as in effect on the Original Closing Date.



     “Interest Election Request” shall mean a request by Borrower to convert or
continue a Revolving Borrowing in accordance with Section 2.08(b),
substantially in the form of Exhibit D.



     “Interest Payment Date” shall mean (a) with respect to any ABR Revolving
Loan, the last day of each month during the period that such Revolving Loan is
outstanding and the Maturity Date of such Revolving Loan, (b) with respect to
any Eurodollar Revolving Loan, the last day of the Interest Period applicable
to the Borrowing of which such Revolving Loan is a part and, in the case of a
Eurodollar Revolving Loan with an Interest Period of more than three months’
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months’ duration after the first day of such Interest
Period, and (c) with respect to any Swingline Loan, the day that such Swingline
Loan is required to be repaid.



     “Interest Period” shall mean, with respect to any Eurodollar Revolving
Borrowing, the period commencing on the date of such Revolving Borrowing and
ending on the numerically corresponding day in the calendar month that is one,
two, three or six months thereafter, as Borrower may elect; provided, that (a)
if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day
and (b) any Interest Period that commences on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the last calendar month of such Interest Period) shall end on the last
Business Day of the last calendar month of such Interest Period. For purposes
hereof, the date of a Revolving Borrowing initially shall be the date on which
such Revolving Borrowing is made and thereafter shall be the effective date of
the most recent conversion or continuation of such Revolving Borrowing;
provided, however, that an Interest Period shall be limited to one month to the
extent required under Section 2.03(e).



     “Interest Rate Protection Agreement” shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or
similar agreement or arrangement entered into by Holdings, Borrower or any of
their Subsidiaries.



     “Intermediate Holdings” shall mean GK Technologies, Incorporated, a New
Jersey corporation.



     “Inventory” shall mean all “inventory,” as such term is defined in the UCC
as in effect on the date hereof in the State of New York, wherever located, in
which any Person now or hereafter has rights.



     “Inventory Appraisal” shall mean (a) on the Original Closing Date, the
report prepared by DoveBid Valuation Services, Inc. dated October 27, 2003 and
(b) thereafter, the most recent inventory appraisal conducted by an independent
appraisal firm designated by Collateral Agent and reasonably acceptable to
Borrower and delivered pursuant to Section 9.02 hereof.



27









 





     “Investment Grade Account Debtor” means an Account Debtor whose unsecured
long term debt is rated “BBB-” or better by Standard & Poor’s Ratings Services,
a division of the McGraw-Hill Companies, Inc. and “Baa3” or better by Moody’s
Investor’s Services, Inc.



     “Investments” shall have the meaning assigned to such term in Section
6.04.



     “Issuing Bank” shall mean, as the context may require, (a) UBS AG,
Stamford Branch, with respect to Letters of Credit issued by it; (b) any other
Lender that may become an Issuing Bank pursuant to Section 2.18(i), with
respect to Letters of Credit issued by such Lender; or (c) collectively, all of
the foregoing.



     “ITA” shall mean the Income Tax Act (Canada) as the same may, from time to
time, be in effect.



     “Joinder Agreement” shall mean that certain joinder agreement
substantially in the form of Exhibit E.



     “Joint Venture” means a Person in which one or more Persons other than any
Company own 50% or more of Equity Interests.



     “Judgment Currency” shall have the meaning assigned to such term in
Section 11.16(a).



     “Landlord Lien Waiver and Access Agreement” shall mean the Landlord Lien
Waiver and Access Agreement, substantially in the form of Exhibit F.



     “LC Commitment” shall mean the commitment of the Issuing Bank to issue
Letters of Credit pursuant to Section 2.18.



     “LC Disbursement” shall mean a payment or disbursement made by the Issuing
Bank pursuant to a Letter of Credit.



     “LC Exposure” shall mean at any time the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
principal amount of all LC Disbursements that have not yet been reimbursed at
such time. The LC Exposure of any Revolving Lender at any time shall mean its
Pro Rata Percentage of the aggregate LC Exposure at such time.



     “LC Participation Fee” shall have the meaning assigned to such term in
Section 2.05(c).



     “LC Request” shall mean a request by Borrower in accordance with the terms
of Section 2.18(b) and substantially in the form of Exhibit A-3, or such other
form as shall be approved by the Administrative Agent.



     “Leases” shall mean any and all leases, subleases, tenancies, options,
concession agreements, rental agreements, occupancy agreements, franchise
agreements, access agreements and any other agreements (including all
amendments, extensions, replacements, renewals, modifications and/or guarantees
thereof), whether or not of record and whether now in existence



28









 





or hereafter
entered into, affecting the use or occupancy of all or any portion of any Real
Property.



     “Lender Addendum” shall mean with respect to any Lender on the Original
Closing Date, a lender addendum in the form of Exhibit A-4  ̧ executed and
delivered by such Lender on the Original Closing Date as provided in Section
11.14.



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



     “Lenders” shall mean (a) the financial institutions that have become a
party hereto pursuant to a Lender Addendum (other than any such financial
institution that has ceased to be a party hereto pursuant to an Assignment and
Acceptance) and (b) any financial institution that has become a party hereto
pursuant to an Assignment and Acceptance. Unless the context clearly indicates
otherwise, the term “Lenders” shall include the Swingline Lender.



     “Letter of Credit” shall mean any (i) Standby Letter of Credit and (ii)
Commercial Letter of Credit, in each case, issued or to be issued by an Issuing
Bank for the account of Borrower pursuant to Section 2.18 of this Agreement or
pursuant to Section 2.18 of the Prior Credit Agreement.



     “Letter of Credit Expiration Date” shall mean the date which is ten
Business Days prior to the Maturity Date.



     “LIBOR Rate” shall mean, with respect to any Eurodollar Revolving
Borrowing for any Interest Period therefor, the rate per annum determined by
the Administrative Agent to be the arithmetic mean (rounded to the nearest
1/100 of 1%) of the offered rates for deposits in Dollars with a term
comparable to such Interest Period that appears on the Telerate British Bankers
Assoc. Interest Settlement Rates Page (as defined below) at approximately 11:00
a.m., London, England time, on the second full Business Day preceding the first
day of such Interest Period; provided, however, that (i) if no comparable term
for an Interest Period is available, the LIBOR Rate shall be determined using
the weighted average of the offered rates for the two terms most nearly
corresponding to such Interest Period and (ii) if there shall at any time no
longer exist a Telerate British Bankers Assoc. Interest Settlement Rates Page,
“LIBOR Rate” shall mean, with respect to each day during each Interest Period
pertaining to Eurodollar Revolving Borrowings comprising part of the same
Borrowing, the rate per annum equal to the rate at which the Administrative
Agent is offered deposits in Dollars at approximately 11:00 a.m., London,
England time, two Business Days prior to the first day of such Interest Period
in the London interbank market for delivery on the first day of such Interest
Period for the number of days comprised therein and in an amount comparable to
its portion of the amount of such Eurodollar Revolving Borrowing to be
outstanding during such Interest Period. “Telerate British Bankers Assoc.
Interest Settlement Rates Page” shall mean the display designated as Page 3750
on the
Telerate System Incorporated Service (or such other page as may replace
such page on such service for the purpose of displaying the rates at which
Dollar deposits are offered by leading banks in the London interbank deposit
market).



29









 





     “Lien” shall mean, with respect to any Property, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, claim, charge, assignment, hypothecation,
security interest or encumbrance of any kind, any other type of preferential
arrangement in respect of such Property or any filing of any financing
statement under the UCC or any other similar notice of Lien under any similar
notice or recording statute of any Governmental Authority, including any
easement, right-of-way or other encumbrance on title to Real Property, in each
of the foregoing cases whether voluntary or imposed by law, and any agreement
to give any of the foregoing; (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of the
foregoing) relating to such Property; and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.



     “Line Reserve” shall mean a reserve established against the Commitments to
reflect the amount of the Commitments which are not available to the Borrower
due to the establishment of a Reinvestment Reserve.



     “Loan Documents” shall mean this Agreement, any Borrowing Base
Certificate, the Letters of Credit, the Notes (if any), the Security Documents,
the Fee Letter and each Specified Hedging Agreement entered into with any
counterparty that was a Lender or an Affiliate of a Lender at the time such
Hedging Agreement was entered into.



     “Loan Parties” shall mean Borrower and Guarantors.



     “Loans” shall mean advances made to or at the instructions of Borrower
pursuant to Article II hereof or pursuant to Article II of the Prior Credit
Agreement and may constitute a Revolving Loan or a Swingline Loan.



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



     “Material Adverse Effect” shall mean (a) a material adverse effect on the
business, Property, results of operations, prospects or condition, financial or
otherwise, or material agreements of Borrower and the Subsidiaries, taken as a
whole; (b) material impairment of the ability of any Borrower, Borrowing Base
Guarantor or any other Guarantor that is not a Holding Company or an Inactive
Subsidiary to fully and timely perform any of their obligations under any Loan
Document, (c) material impairment of the ability of any Guarantor other than
Guarantors described in clause (b) above to fully and timely perform any of
their obligations under any Security Document; (d) material impairment of the
ability of Guarantors other than Guarantors described in clause (b) above, when
such Guarantors are taken as a whole, to fully and timely perform any of their
obligations under any Guarantees; (e) material impairment of the rights of or
benefits or remedies available to the Lenders or the Collateral Agent under any
Loan Document; or (f) a material adverse effect on the Collateral or the Liens
in favor of the Collateral Agent (for its benefit and for the benefit of the
other Secured Parties) on the Collateral or the priority of such Liens.



     “Material Indebtedness” shall mean Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of any Loan Party evidencing an aggregate outstanding principal
amount exceeding $3.0 million. For purposes of



30









 





determining Material
Indebtedness, the “principal amount” of the obligations of such Loan Party in
respect of any Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that such Loan Party would be
required to pay if such Hedging Agreement were terminated at such time.



     “Maturity Date” shall mean November 24, 2008.



     “Maximum Rate” shall have the meaning assigned to such term in Section
11.13.



     “Merrill” shall have the meaning assigned to such term in the preamble
hereto.



     “Mexican Guaranty” shall mean that certain Guarantee dated as of the
Original Closing Date addressed to the Collateral Agent for the benefit of the
Secured Parties by General Cable de Mexico del Norte SA de CV, a Mexican
corporation and General Cable de Latinoamerica, SA de CV, a Mexican
corporation, which is governed by Mexican law, as the same may from time to
time be modified, amended, extended or reaffirmed in accordance with the terms
hereof and with the consent of Collateral Agent.



     “Mortgage” shall mean an agreement, including, but not limited to, a
mortgage, deed of trust or any other document, creating and evidencing a Lien
on a Mortgaged Real Property, which shall be in substantially in the form of
Exhibit G, with such schedules and including such provisions as shall be
necessary to conform such document to applicable local or foreign law or as
shall be customary under applicable local or foreign law, as the same may from
time to time be modified, amended, extended or reaffirmed in accordance with
the terms hereof and with the consent of Collateral Agent.



     “Mortgaged Real Property” shall mean (a) each Real Property identified on
Schedule 1.01(a) hereto and (b) each Real Property, if any, which shall be
subject to a Mortgage delivered after the Original Closing Date pursuant to
Section 5.11(d) or pursuant to Section 5.11(d) of the Prior Credit Agreement.



     “Multiemployer Plan” shall mean a multiemployer plan within the meaning of
Section 4001(a)(3) or Section 3(37) of ERISA (a) to which any Company or any
ERISA Affiliate is then making or accruing an obligation to make contributions;
(b) to which any Company or any ERISA Affiliate has within the preceding five
plan years made contributions; or (c) with respect to which any Company could
incur liability.



     “Net Cash Proceeds” shall mean:




     (a) with respect to any Asset Sale, the cash proceeds received by
any Loan Party (including cash proceeds subsequently received (as and
when received by any Loan Party) in respect of noncash consideration
initially received) net of (i) selling expenses (including reasonable
brokers’ fees or commissions, legal, accounting and other professional
and transactional fees, transfer and similar taxes and Borrower’s good
faith estimate of income taxes paid or payable in connection with such
sale); (ii) amounts
provided as a reserve, in accordance with GAAP, against any
liabilities under any indemnification obligations associated with such
Asset Sale (provided, that, to the extent and at the time any such
amounts are released from such reserve, such amounts shall



31









 





constitute Net
Cash Proceeds); (iii) Borrower’s good faith estimate of payments required
to be made with respect to unassumed liabilities relating to the assets
sold within 90 days of such Asset Sale (provided, that, to the extent
such cash proceeds are not used to make payments in respect of such
unassumed liabilities within 90 days of such Asset Sale, such cash
proceeds shall constitute Net Cash Proceeds); and (iv) the principal
amount, premium or penalty, if any, interest and other amounts on any
Indebtedness for borrowed money which is secured by a senior Lien on the
asset sold in such Asset Sale and which is repaid with such proceeds
(other than any such Indebtedness assumed by the purchaser of such
asset);




     (b) with respect to any Debt Issuance, the cash proceeds thereof,
net of customary fees (including discounts to underwriters), commissions,
costs and other expenses incurred in connection therewith; and




     (c) with respect to any Casualty Event, the cash insurance proceeds,
condemnation awards and other compensation received in respect thereof,
net of all reasonable costs and expenses incurred in connection with the
collection of such proceeds, awards or other compensation in respect of
such Casualty Event and net of amounts which are secured by any senior
Lien (to the extent such Liens constitute Permitted Lien hereunder) on
the applicable Property and which is paid with such proceeds.



     “New Common Stock” shall mean up to 5,807,500 shares of common stock of
Holdings, par value $0.01 per share (of which 5,050,000 are issued on the
Original Closing Date) issued pursuant to the applicable Confidential
Information Memorandum.



     “Net Recovery Cost Percentage” shall mean the fraction, expressed as a
percentage, (a) the numerator of which is the amount equal to the recovery on
the aggregate amount of the Inventory at such time on a “net orderly
liquidation value” basis as set forth in the most recent Inventory Appraisal
received by Collateral Agent in accordance with Section 9.02, net of operating
expenses, liquidation expenses and commissions reasonably anticipated in the
disposition of such assets, and (b) the denominator of which is the original
Cost of the aggregate amount of the Inventory subject to appraisal.



     “NextGen” shall mean NextGen Fiber Optics LLC, a Delaware limited
liability company, whose 49% Equity Interest is owned by Borrower.



     “Notes” shall mean any notes evidencing the Revolving Loans or Swingline
Loans issued pursuant to this Agreement, if any, substantially in the form of
Exhibit H-1 or H-2, as the case may be.



     “Obligation Currency” shall have the meaning assigned to such term in
Section 11.16(a).



     “Obligations” shall mean Existing Obligations and (a) obligations of
Borrower and any and all of the other Loan Parties from time to time arising
under or in respect of the due and punctual payment of (i) the principal of and
premium, if any, and interest (including interest accruing during the pendency
of any bankruptcy, insolvency, receivership or other similar



32









 





proceeding,
regardless of whether allowed or allowable in such proceeding) on the Loans,
when and as due, whether at maturity, by acceleration, upon one or more dates
set for prepayment or otherwise, (ii) each payment required to be made by
Borrower and any and all of the other Loan Parties under this Agreement in
respect of any Letter of Credit, when and as due, including payments in respect
of reimbursement of disbursements, interest thereon and obligations to provide
cash collateral and (iii) all other monetary obligations, including fees,
costs, expenses and indemnities, whether primary, secondary, direct,
contingent, fixed or otherwise (including monetary obligations incurred during
the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), of
Borrower and any and all of the other Loan Parties under this Agreement and the
other Loan Documents, (b) the due and punctual performance of all covenants,
agreements, obligations and liabilities of Borrower and each Loan Party under
or pursuant to this Agreement and the other Loan Documents, (c) the due and
punctual payment and performance of all obligations of Borrower and any and all
of the other Loan Parties under each Specified Hedging Agreement entered into
with any counterparty that is a Lender or an Affiliate of a Lender or was a
Lender or an Affiliate of a Lender at the time such Specified Hedging Agreement
was entered into, and (d) the due and punctual payment and performance of all
obligations in respect of overdrafts and related liabilities owed to any
Lender, any Affiliate of a Lender, the Administrative Agent or the Collateral
Agent arising from treasury, depositary and cash management services or in
connection with any automated clearinghouse transfer of funds.



     “Officers’ Certificate” shall mean a certificate executed by the Chairman
of the Board (if an officer), the Chief Executive Officer, the President, one
of the Financial Officers, each in his or her official (and not individual)
capacity.



     “Original Closing Date” shall mean November 24, 2003.



     “Other Taxes” shall mean any and all present or future stamp or
documentary taxes or any other excise or Property taxes, charges or similar
levies (including interest, fines, penalties and additions to tax) arising from
any payment made or required to be made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.



     “Overadvance” shall have the meaning assigned to such term in Section
10.10.



     “Participant” shall have the meaning assigned to such term in Section
11.04(e).



     “Participating Member State” shall mean any member state which adopts the
euro unit of the single currency pursuant to the Treaty.



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



     “Perfection Certificate” shall mean a certificate in the form of Exhibit
I-1 or any other form approved by the Collateral Agent, as the same shall be
supplemented from time to time by a Perfection Certificate Supplement or
otherwise.



33









 





     “Perfection Certificate Supplement” shall mean a certificate supplement in
the form of Exhibit I-2 or any other form approved by the Collateral Agent.



     “Permitted Acquisition” shall mean Permitted Loan Funded Acquisition,
Permitted Non-Loan Funded Acquisition, or either of them.



     “Permitted Asset Sale” shall mean, any Asset Sale made, directly or
indirectly, by Borrower or any Loan Party which meets each of the following
conditions:



     (a) no Default then exists or would result therefrom;



     (b) Borrower or such Loan Party, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the Fair Market
Value of the assets sold or otherwise disposed of;



     (c) at least 75% of such consideration received by Borrower or such Loan
Party consists of (i) cash or Cash Equivalents, (ii) assets (other than
securities) to be used in a business of a same or substantially similar type as
that conducted by Borrower and the Subsidiaries on the Original Closing Date or
(iii) a combination of cash, Cash Equivalents and such assets described in
clause (c)(ii) above; and



     (d) in the case of any Permitted Asset Sale made by any Domestic and
Canadian Loan Party, the Collateral Agent has reasonably determined the Fixed
Asset Loan Value of any assets included in the Borrowing Base being sold and
made the appropriate adjustments to the Borrowing Base to reflect such Asset
Sale and following such adjustment, Borrower is in compliance with Section
6.08(c).



     “Permitted Fixed Asset Exchange” shall mean, with respect to any Equipment
or Real Property (the “Relinquished Fixed Asset”) of any Company, an exchange
by such Company, in a transaction or series of related transactions
simultaneously or substantially simultaneously consummated, of the Relinquished
Fixed Asset for one or more items of Equipment or Real Property (the “Replaced
Fixed Asset”) of any Person which is useful in the conduct of such Company’s
business and which meets each of the following conditions:




     (a) no Default then exists or would result therefrom;




     (b) is an exchange consummated pursuant to agreements, instruments
and documents which are submitted for review to the Collateral Agent and
the Administrative Agent no less than thirty (30) calendar days prior to
the consummation of such exchange and which are reasonably satisfactory
in their collective reasonable credit judgment of the Collateral Agent
and the Administrative Agent as to form and substance;




     (c) is an exchange of a Relinquished Fixed Asset located in the
United States or Canada owned by a Domestic or Canadian Company for
Replaced Fixed Assets located in the United States or Canada or is an
exchange of a Relinquished Fixed Asset located outside the United State
and Canada owned by a Foreign Company for Replaced Fixed Assets located
outside the United States or Canada;



34









 






     (d) is an exchange of a Relinquished Fixed Asset the Exchange Fair
Market Value of which, when added to the Exchange Fair Market Value of
all Relinquished Fixed Assets exchanged in Permitted Fixed Asset
Exchanges since the Original Closing Date, does not exceed the U.S.
Dollar Equivalent of $75.0 million in the aggregate;




     (e) the Borrower shall have certified to the Collateral Agent and
the Administration Agent the Exchange Fair Market Values of both the
Relinquished Fixed Assets and the Replaced Fixed Assets; and




     (f) if a Relinquished Fixed Asset is a part of the Collateral, it
shall be exchanged for Replaced Fixed Assets with respect to which, at
the closing of any Permitted Fixed Asset Exchange, the Collateral Agent
will be granted a first priority perfected Lien (subject to Permitted
Liens under Sections 6.02(a), (b), (d) and (g)) pursuant to such
documents and by such actions being taken as may be reasonably required
by the Collateral Agent, and if a Relinquished Fixed Asset is Eligible
Equipment or Eligible Real Property, (i) the Replaced Fixed Assets shall
also constitute Eligible Equipment or Eligible Real Property, as the case
may be, as determined by the Collateral Agent in the Collateral Agent’s
reasonable credit judgment and (ii) the Collateral Agent shall determine
the Fixed Asset Loan Value of the Replaced Fixed Asset (including any
Reserves which will be associated therewith) and the Fixed Asset Loan
Value of the Relinquished Fixed Assets;




provided, however, that to the extent (A) the Exchange Fair Market Value
of the Replaced Fixed Assets is less than the Exchange Fair Market Value
of the Relinquished Fixed Assets and/or (B) the Fixed Asset Loan Value of
the Replaced Fixed Assets (after giving effect to any Reserves which will
be associated therewith) determined under clause (f)(ii) above is less
than the Fixed Asset Loan Value of the Relinquished Fixed Assets
determined under clause (f)(ii) above (after giving effect to any
Reserves to be released as a result of the disposition of such Property),
Borrower shall immediately prepay the Obligations (without reduction in
Commitments) in the amount equal to the greater of the difference
obtained in clause (A) or clause (B) of this proviso as if such amount
constituted Net Cash Proceeds of an Asset Sale.



     For the purposes of this definition, “Exchange Fair Market Value” shall
mean Fair Market Value; provided, however, that the Fair Market Value of any
Relinquished Fixed Asset or any Replaced Fixed Asset in excess of $1.0 million
but less than $5.0 million shall be determined conclusively by the board of
directors of Borrower (or a duly authorized committee thereof) acting in good
faith and shall be evidenced by a resolution of such board of directors
delivered to the Administrative Agent and the Collateral Agent; and provided,
further, however, that the Fair Market Value of any Relinquished Fixed Asset or
any Replaced Fixed Asset in excess of $5.0 million shall be determined by the
board of directors of the Borrower as provided in the immediately preceding
proviso, whose determination, however, shall not be conclusive but which shall
be supported by an appraisal as may be requested the Collateral Agent or the
Administrative Agent, at the expense of the Borrower, by an independent,
third-party appraiser designated by the Collateral Agent and reasonably
acceptable to the Borrower.



     “Permitted Liens” shall have the meaning assigned to such term in Section
6.02.



35









 





     “Permitted Loan Funded Acquisition” shall mean, with respect to Borrower
or any Borrowing Base Guarantor other than Holdings or Intermediate Holdings,
any transaction or series of related transactions for the direct or indirect
(a) acquisition of all or substantially all of the Property of any other
Person, or of any business, product line or division of any other Person; (b)
acquisition of in excess of 50% of the Equity Interests of any other Person, or
otherwise causing any other Person to become a Subsidiary of such Person; or
(c) merger or consolidation or any other combination with any other Person (so
long as the Borrower or a Borrowing Base Guarantor is the surviving entity), if
each of the following conditions are met, as reasonably determined by the
Administrative Agent and the Collateral Agent:




     (i) no Default then exists or would result therefrom;




     (ii) after giving effect to such acquisition on a Pro Forma Basis,
(A) Borrower shall be in compliance with all covenants set forth in
Section 6.08 as of the most recent Test Period (assuming, for purposes of
Section 6.08, that such acquisition, and all other Permitted Loan Funded
Acquisitions consummated since the first day of the relevant Test Period
for each of the financial covenants set forth in Section 6.08 ending on
or prior to the date of such acquisition, had occurred on the first day
of such relevant Test Period), (B) the Companies can reasonably be
expected to remain in compliance with such covenants through the Maturity
Date and to have sufficient cash liquidity to conduct their business and
pay their respective debts and other liabilities as they come due and (C)
Excess Availability for the 90-day period preceding the consummation of
such acquisition would have exceeded $75.0 million on a Pro Forma Basis
(after giving effect to such acquisition and the Revolving Loans funded
in connection therewith as if made on the first day of such period) and
the projections in connection with the proposed acquisition (based upon
historical financial data of a recent date reasonably satisfactory to
Collateral Agent, taking into account the proposed acquisition) shall
reflect that such Excess Availability of $75.0 million shall continue for
at least 2 years after the consummation of such acquisition; for the
purposes of this paragraph (ii) the amount of outstanding Loans and LC
Exposure in clause (b) of the definition of the term “Excess
Availability” shall be calculated on the basis of the average daily
outstanding Loans and LC Exposure for the applicable measuring period;




     (iii) no Company shall, in connection with any such acquisition,
assume or remain liable with respect to any Indebtedness or other
liability (including any material tax or ERISA liability) of the related
seller, except (A) to the extent permitted under Section 6.01, and (B)
obligations of the seller incurred in the ordinary course of business and
necessary or desirable to the continued operation of the underlying
properties, and any other such liabilities or obligations not permitted
to be assumed or otherwise supported by any Company hereunder shall be
paid in full or released as to the assets being so acquired on or before
the consummation of such acquisition;




     (iv) the acquired Person shall be engaged in a business of a same or
substantially similar type as that conducted by Borrower and the
Subsidiaries on the Original Closing Date and the Property acquired in
connection with any such acquisition shall be made subject to the Lien of
the Security Documents and shall be free and clear of any Liens, other
than Permitted Liens;



36









 






     (v) Collateral Agent shall have received (except with respect to
asset acquisitions) the Joinder Agreement from the acquired Person,
joinder agreement to the Security Documents in the form annexed thereto
and such other supplemental agreements, blocked account agreements and
other agreements, instruments and documents in connection therewith as
reasonably requested by the Collateral Agent together with all opinions,
certificates, lien search results and other documents, agreements,
instruments and reasonably requested by the Collateral Agent, all in
form and substance reasonably satisfactory to the Collateral Agent;




     (vi) the board of directors or other similar governing body of the
acquired Person shall not have indicated publicly its opposition to the
consummation of such acquisition;




     (vii) with respect to any acquisition involving Acquisition
Consideration of more than $1.0 million, Borrower shall have provided the
Administrative Agent and the Lenders with (A) historical financial
statements for the last three fiscal years of the Person or business to
be acquired (audited if available without undue cost or delay) and
unaudited financial statements thereof for the most recent interim period
which are available, (B) reasonably detailed projections for the
succeeding 2 years pertaining to the Person or business to be acquired,
(C) a reasonably detailed description of all material information
relating thereto and copies of all material documentation pertaining to
such acquisition, and (D) all such other information and data relating to
such acquisition or the Person or business to be acquired as may be
reasonably requested by the Administrative Agent or the Required Lenders;




     (viii) Borrower shall have delivered to the Administrative Agent,
the Collateral Agent and the Lenders an Officers’ Certificate certifying
that (A) such acquisition complies with this definition (which shall have
attached thereto reasonably detailed backup data and calculations showing
such compliance), and (B) such acquisition could not reasonably be
expected to result in a Material Adverse Effect;




     (ix) such acquisition shall be consensual and shall have been
approved by the board of directors of the Person being acquired; and




     (x) the aggregate Acquisition Consideration for all Permitted Loan
Funded Acquisitions since the Original Closing Date shall not exceed
$55.0 million; provided, that any Equity Interests constituting all or a
portion of Acquisition Consideration shall not have a cash dividend
requirement on or prior to the Maturity Date.



     Notwithstanding the foregoing, the Accounts and Inventory of the Person to
be acquired or comprising the assets to be acquired shall not be included as
Eligible Accounts or Eligible
Inventory until a field audit with respect thereto has been completed to
the satisfaction of the Collateral Agent, including the establishment of
Reserves required in the Collateral Agent’s reasonable credit judgment.



     “Permitted Non-Loan Funded Acquisition” shall mean, with respect to
Borrower, any Borrowing Base Guarantor (other than Holdings), or any Foreign
Subsidiary, any transaction or



37









 





series of related transactions for the direct or
indirect (a) acquisition of all or substantially all of the Property of any
other Person, or of any business, product line or division of any other Person;
(b) acquisition of in excess of 50% of the Equity Interests of any other
Person, or otherwise causing any other Person to become a Subsidiary of such
Person; or (c) (i) merger or consolidation or any other combination of the
Borrower or any of the Borrowing Base Guarantors with any other Person (so long
as the Borrower or such Borrowing Base Guarantor shall be the surviving entity)
or (ii) merger or consolidation or any other combination of any Foreign
Subsidiary with any other: (A) Foreign Person which owns assets and operates
business within the United States or Canada; provided, that (x) the aggregate
fair market value of all assets within the United States or Canada of all such
Foreign Persons acquired after the Original Closing Date do not exceed $5.0
million and (y) all such assets shall be transferred to a Domestic or a
Canadian Guarantor within 30 days of the consummation of the Permitted Non-Loan
Funded Acquisition involving such Foreign Person or (B) Foreign Person which
owns assets and operates business outside the United States and Canada so long
as, if such Foreign Subsidiary is a Guarantor or a Foreign Subsidiary whose
Equity Interest has been pledged and delivered to the Collateral Agent for the
benefit of the Secured Parties, such Foreign Subsidiary is the surviving
entity, in each case if each of the following conditions are met, as reasonably
determined by the Administrative Agent and the Collateral Agent:




     (i) no Default then exists or would result therefrom;




     (ii) Acquisition Consideration consists entirely of proceeds of an
Acquisition Debt Issuance permitted hereunder or Equity Issuance or
entirely of a combination of cash which is provided by Foreign
Subsidiaries and proceeds of Acquisition Debt Issuance permitted
hereunder or Equity Issuance;




     (iii) such acquisition shall be consensual and shall have been
approved by the board of directors of the Person being acquired; and




     (iv) after giving effect to such acquisition on a Pro Forma Basis,
(A) Borrower shall be in compliance with all covenants set forth in
Section 6.08 as of the most recent Test Period (assuming, for purposes of
Section 6.08, that such acquisition, and all other Permitted Non-Loan
Funded Acquisitions consummated since the first day of the relevant Test
Period for each of the financial covenants set forth in Section 6.08
ending on or prior to the date of such acquisition, had occurred on the
first day of such relevant Test Period), (B) the Companies can reasonably
be expected to remain in compliance with such covenants through the
Maturity Date and to have sufficient cash liquidity to conduct their
business and pay their respective debts and other liabilities as they
come due and (C) Excess Availability for the 90-day period preceding the
consummation of such acquisition would have exceeded $35.0 million on a
Pro Forma basis (after giving effect to such acquisition and the
Revolving Loans funded in connection therewith as if made
on the first day of such period) and the projections in connection
with the proposed acquisition (based upon historical financial data of a
recent date reasonably satisfactory to the Administrative Agent and the
Collateral Agent, taking into account the proposed acquisition) shall
reflect that such Excess Availability of $35.0 million shall continue for
at least 2 years after the consummation of such acquisition; for the
purposes of this paragraph (iv), the amount of outstanding Loans and LC
Exposure in clause (b) of the



38









 






definition of the term “Excess
Availability” shall be calculated on the basis of the average daily
outstanding Loans and LC Exposure for the applicable measuring period.



     “Person” shall mean any natural Person, corporation, business trust, joint
venture, association, company, limited liability company, partnership or
government, or any agency or political subdivision thereof.



     “Plan” shall mean any “employee pension benefit plan” as such term is
defined in Section 3(2) of ERISA (other than a Multiemployer Plan) subject to
the provisions of Title IV of ERISA or Section 412 of the Code or Section 302
of ERISA which is maintained or contributed to by any Company or its ERISA
Affiliate or with respect to which any Company could incur liability
(including, without limitation, under Section 4069 of ERISA).



     “PNC Hedge Agreement” shall mean that certain ISDA Master Agreement (and
related Schedule) between General Cable Corporation and PNC Bank, National
Association, dated as of November 5, 2001, for a notional amount of $9.0
million, with a maturity of November 11, 2011, as amended by that certain ISDA
Amendment to the ISDA Master Agreement dated as of November 24, 2003 and as the
same may be amended, modified or supplemented from time to time.



     “PPSA” shall mean the Personal Property Security Act as from time to time
in effect in the Province of Nova Scotia and the regulations thereunder, as
from time to time in effect, provided, however, if validity, attachment,
perfection or priority of Collateral Agent’s security interests in any
Collateral are governed by the personal property security laws of any
jurisdiction in Canada other than Nova Scotia, “PPSA” shall mean those personal
property security laws in such other jurisdiction for the purposes of the
provisions hereof relating to such validity, attachment, perfection or priority
and for the definitions related to such provisions.



     “Preferred Stock” shall mean, with respect to any Person, any and all
preferred or preference Equity Interests (however designated) of such Person
whether now outstanding or issued after the Original Closing Date.



     “Prior Credit Agreement” shall have the meaning assigned to such term in
the Recitals hereto.



     “Prior Lien” shall have the meaning assigned to such term in the
applicable Security Document.



     “Pro Forma Basis” shall mean on a basis in accordance with GAAP and
Regulation S-X under the Securities Act and otherwise reasonably satisfactory
to the Administrative Agent.



     “Pro Rata Percentage” of any Revolving Lender at any time shall mean the
percentage of the total Revolving Commitment represented by such Lender’s
Revolving Commitment.



     “Property” shall mean any right, title or interest in or to property or
assets of any kind whatsoever, whether real, personal or mixed and whether
tangible or intangible and including Equity Interests or other ownership
interests of any Person and whether now in existence or owned or hereafter
entered into or acquired, including, without limitation, all Real Property.



39









 





     “Purchase Money Obligation” shall mean, for any Person, the obligations of
such Person in respect of Indebtedness incurred for the purpose of financing
all or any part of the purchase price of any Property (including Equity
Interests of any Person) or the cost of installation, construction or
improvement of any Property or assets and any refinancing thereof; provided,
however, that such Indebtedness is incurred within 90 days after such
acquisition of such Property by such Person.



     “Qualified Capital Stock” of any Person shall mean any capital stock of
such Person that is not Disqualified Capital Stock.



     “Qualified Senior Note Documents” shall mean the Qualified Senior Note
Indenture and other agreement pursuant to which the Qualified Senior Notes are
issued as contemplated by the Confidential Information Memorandum related to
9.5% Senior Notes and all other documents executed and delivered with respect
to the Qualified Senior Notes.



     “Qualified Senior Note Indenture” shall mean that certain Indenture, dated
as of November 24, 2003, among Holdings, the guarantors named therein and US
Bank National Association, as trustee, with respect to the Qualified Senior
Notes, as in effect on the Original Closing Date.



     “Qualified Senior Notes” shall mean Holdings’ 9.5% Senior Notes due 2010
issued pursuant to the Qualified Senior Note Documents and any registered notes
issued by Holdings in exchange for, and as contemplated by the Notes, with
substantially identical terms as the Notes.



     “Real Property” shall mean, collectively, all right, title and interest
(including any leasehold estate) in and to any and all parcels of or interests
in real Property owned, leased or operated by any Person, whether by lease,
license or other means, together with, in each case, all easements,
hereditaments and appurtenances relating thereto, all improvements and
appurtenant fixtures and equipment, all general intangibles and contract rights
and other Property and rights incidental to the ownership, lease or operation
thereof.



     “Refinancing” shall mean the repayment in full and the termination of any
commitment to make extensions of credit under all of the indebtedness of
Holdings and Borrower and Guarantors which was outstanding on the Original
Closing Date, as listed on Schedule 1.01(b).



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



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



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



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



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



40









 





     “Reinvestment Reserve” shall have the meaning assigned to such term in
Section 2.10(g).



     “Release” shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Hazardous Material in,
into, onto or through the Environment.



     “Required Lenders” shall mean, at any time, Lenders having more than fifty
percent (50%) of the Revolving Commitments or, if the Revolving Commitments
have been terminated, more than fifty percent (50%) of the sum of Revolving
Exposure.



     “Requirements of Law” shall mean, collectively, any and all requirements
of any Governmental Authority including any and all laws, ordinances, rules,
regulations or similar statutes or case law.



     “Reserves” shall mean reserves established against the Borrowing Base that
the Collateral Agent may, in its reasonable credit judgment, establish from
time to time and that has a reasonable relationship to the event, condition or
other matter which is the basis for such Reserve as determined by the
Collateral Agent in good faith. Without limiting the generality of the
foregoing, Reserves shall include any Hedging Reserve, Reinvestment Reserve
(including any Line Reserve) and Canadian Priority Payment Reserve.



     “Response” shall mean (a) “response” as such term is defined in CERCLA, 42
U.S.C. § 9601(24), and (b) all other actions required by any Governmental
Authority or voluntarily undertaken to: (i) clean up, remove, treat, abate or
in any other way address any Hazardous Material in the environment; (ii)
prevent the Release or threat of Release, or minimize the further Release, of
any Hazardous Material; or (iii) perform studies and investigations in
connection with, or as a precondition to, clause (i) or (ii) above.



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



     “Restricted Payments” with respect to any Company shall mean (a) a
declaration or payment of a dividend or return of any equity capital to its
stockholders or other equity holders or authorization or the incurrence of any
liability to make any other payment, distribution or delivery of other Property
in respect of Equity Interest (other than common stock of such Company) or cash
to its stockholders or other equity holders as such, (b) redemption,
retirement, purchase, defeasance, or other acquisition, direct or indirect, for
a consideration of any shares of
any class of its capital stock or other Equity Interest outstanding (or
any options or warrants issued by such Person with respect to its capital stock
or other Equity Interest), or setting aside any funds or any payments on
account of the sinking fund for any of the foregoing purposes, or permitting
any of Subsidiaries of such Company to purchase or otherwise acquire for a
consideration any shares of any class of the capital stock of such Person
outstanding (or any options or warrants issued by such Person with respect to
its capital stock), (c) any payment or prepayment of principal of, premium, if
any, or interest, fees or other charges on or with respect to, and any
redemption, purchase, retirement, defeasance, sinking fund or similar payment
and



41









 





any claim for rescission with respect to, any Indebtedness expressly
subordinated as to right and time of payment to the prior indefeasible payment
in full in cash of the Obligations (provided, that the Qualified Senior Notes
shall not be deemed, for the purposes hereof, to be subordinated by reason of
being unsecured), (d) any payment of a claim for the rescission of the purchase
or sale of, or for material damages arising from the purchase or sale of, any
Equity Interest in such Company or of a claim for reimbursement,
indemnification or contribution arising out of or related to any such claim for
damages or rescission and (e) any payment, loan, contribution, or other
transfer of funds or other Property to any stockholder or any other equity
holder of such Company other than payment of compensation in the ordinary
course of business to stockholders or other equity holders who are employees of
such Company. Without limiting the foregoing, “Restricted Payments” with
respect to any Company shall also include all payments made or required to be
made by such Company with respect to any stock appreciation right, plan, equity
incentive or achievement plans or any similar plans or setting aside of any
funds for the foregoing purposes.



     “Revolving Availability Period” shall mean the period from and including
the Closing Date to but excluding the earlier of the Maturity Date and the date
of termination of the Revolving Commitments.



     “Revolving Borrowing” shall mean a Borrowing comprised of Revolving Loans.



     “Revolving Commitment” shall mean, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans hereunder up to the
amount set forth on Schedule I to the Lender Addendum executed and delivered by
such Lender, or in the Assignment and Acceptance pursuant to which such Lender
assumed its Revolving Commitment, as applicable, as the same may be (a) reduced
from time to time pursuant to Section 2.07 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section
11.04. The aggregate amount of the Lenders’ Revolving Commitments on the
Closing Date is $240.0 million.



     “Revolving Exposure” shall mean, with respect to any Lender at any time,
the aggregate principal amount at such time of all outstanding Revolving Loans
of such Lender, plus the aggregate amount at such time of such Lender’s LC
Exposure, plus the aggregate amount at such of such Lender’s Swingline
Exposure.



     “Revolving Lender” shall mean a Lender with a Revolving Commitment.



     “Revolving Loans” shall mean a Loan made by the Lenders to Borrower
pursuant to Section 2.01(a).



     “Robert Bosch Account(s)” shall mean those certain Accounts with Robert
Bosch Corporation, as the Account Debtor, owing to Borrower, any Borrowing Base
Guarantor, or any Subsidiary thereof.



     “Sarbanes-Oxley Act” shall mean the United States Sarbanes-Oxley Act of
2002.



     “SEC” shall mean the Securities and Exchange Commission of the United
States of America.



42









 





     “Secured Parties” shall mean, collectively, the Administrative Agent, the
Collateral Agent, the Lenders, Issuing Bank and each party to a Hedging
Agreement relating to the Loans if at the date of entering into such Hedging
Agreement such Person was a Lender or an Affiliate of a Lender and such
Affiliate executes and delivers to the Administrative Agent a letter agreement
in form and substance acceptable to the Administrative Agent pursuant to which
such Person (i) appoints the Collateral Agent as its agent under the applicable
Loan Documents, (ii) agrees to be bound by the provisions of Section 9.05 and
(iii) ratifies the constitution of the Collateral Agent as the holder of an
irrevocable power of attorney (fondé de pouvoir) as provided in Section
10.01(b).



     “Securities Account Control Agreement” shall have the meaning assigned to
such term in the Security Agreement.



     “Securities Act” shall mean the Securities Act of 1933, as amended.



     “Security Agreement Collateral” shall mean all Property pledged or granted
as collateral pursuant to the Security Agreements delivered on the Original
Closing Date or thereafter pursuant to Section 5.11.



     “Security Agreement” shall mean a Security Agreement substantially in the
form of Exhibit J among the Loan Parties and Collateral Agent for the benefit
of the Secured Parties and Canadian Security Agreement, as the same may from
time to time be modified, amended, extended or reaffirmed in accordance with
the terms hereof and with the consent of Collateral Agent.



     “Security Documents” shall mean the Security Agreements, the Mortgages,
the Perfection Certificate, Foreign Guaranties, Foreign Pledge Agreements,
Canadian Pledge Agreements and each other security document or pledge agreement
delivered in accordance with applicable local or foreign law to grant a valid,
perfected security interest in any Property, and all UCC or PPSA or other
financing statements or instruments of perfection required by such Security
Documents, to be filed with respect to the security interests in Property and
fixtures created pursuant to such Security Documents and any other document or
instrument utilized to pledge as collateral for the Obligations any Property of
whatever kind or nature.



     “Seller” has the meaning assigned to such term in the first recital
hereto.



     “Special Agent Advance” shall have the meaning assigned to such term in
Section 10.11.



     “Specified Hedging Agreements” shall mean the PNC Hedge Agreement or any
Hedging Agreements made or entered into at any time, or in effect at any time
(whether heretofore or hereafter) between Borrower or any Borrowing Base
Guarantors and a counterparty to a Hedging Agreement reasonably satisfactory to
the Administrative Agent and the Collateral Agent (which may include any Lender
hereunder) and on terms reasonably satisfactory to the Administrative Agent and
the Collateral Agent.



     “Standby Letter of Credit” shall mean any standby letter of credit or
similar instrument issued for the purpose of supporting (a) workers’
compensation liabilities of Borrower or any



43









 





Borrowing Base Guarantor, (b) the
obligations of third-party insurers of Borrower or any Borrowing Base Guarantor
arising by virtue of the laws of any jurisdiction requiring third-party
insurers to obtain such letters of credit, or (c) performance, payment, deposit
or surety obligations of Borrower or any Borrowing Base Guarantor if required
by law or governmental rule or regulation or in accordance with custom and
practice in the industry.



     “Statutory Reserves” shall mean, for any Interest Period for any
Eurodollar Revolving Borrowing, the average maximum rate at which reserves
(including any marginal, supplemental or emergency reserves) are required to be
maintained during such Interest Period under Regulation D by member banks of
the United States Federal Reserve System in New York City with deposits
exceeding one billion Dollars against “Eurodollar liabilities” (as such term is
used in Regulation D). Eurodollar Revolving Borrowings shall be deemed to
constitute Eurodollar liabilities and to be subject to such reserve
requirements without benefit of or credit for proration, exceptions or offsets
which may be available from time to time to any Lender under Regulation D.



     “Subsidiary” shall mean, with respect to any Person (the “parent”) at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent’s consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as
any other corporation, limited liability company, partnership, association or
other entity (a) of which securities or other ownership interests representing
more than 50% of the ordinary voting power or, in the case of a partnership,
more than 50% of the general partnership interests are, as of such date, owned,
controlled or held, or (b) that is, as of such date, otherwise Controlled, by
the parent or one or more Subsidiaries of the parent or by the parent and one
or more Subsidiaries of the parent. Unless otherwise set forth herein,
reference in this Agreement to “Subsidiary” shall mean Holdings’ direct and
indirect Subsidiaries.



     “Supermajority Lenders” shall mean, at any time, Lenders having at least
80% of the Revolving Commitments or, if the Revolving Commitments have been
terminated, at least 80% of the sum of Revolving Exposure.



     “Survey” shall mean a survey of any Mortgaged Real Property (and all
improvements thereon) (i) prepared by a surveyor or engineer licensed to
perform surveys in the state where such Mortgaged Real Property is located,
(ii) dated (or redated) not earlier than six months prior to the date of
delivery thereof unless there shall have occurred within six months prior to
such date of delivery any exterior construction on the site of such Mortgaged
Real Property, in which event such survey shall be dated (or redated) after the
completion of such construction or if such
construction shall not have been completed as of such date of delivery,
not earlier than 20 days prior to such date of delivery, (iii) certified by the
surveyor (in a manner reasonably acceptable to the Administrative Agent and the
Collateral Agent) to the Administrative Agent, the Collateral Agent and the
Title Company, (iv) complying in all respects with the minimum detail
requirements of the American Land Title Association as such requirements are in
effect on the date of preparation of such survey and (v) sufficient for the
Title Company to remove all standard survey exceptions from the title insurance
policy (or commitment) relating to such Mortgaged Real Property and issue the
endorsements of the type required by Section 4.01(o)(iii).



44









 





     “Swingline Commitment” shall mean the commitment of the Swingline Lender
to make loans pursuant to Section 2.17, as the same may be reduced from time to
time pursuant to Section 2.07 or Section 2.17.



     “Swingline Exposure” shall mean at any time the aggregate principal amount
at such time of all outstanding Swingline Loans. The Swingline Exposure of any
Revolving Lender at any time shall equal its Pro Rata Percentage of the
aggregate Swingline Exposure at such time.



     “Swingline Lender” shall have the meaning assigned to such term in the
preamble hereto.



     “Swingline Loan” shall mean any Loan made by the Swingline Lender pursuant
to Section 2.17.



     “Syndication Agent” shall have the meaning assigned to such term in the
preamble hereto.



     “Tax Return” shall mean all returns, statements, filings, attachments and
other documents or certifications required to be filed in respect of Taxes.



     “Tax Sharing Agreements” shall mean all tax sharing, tax allocation and
other similar agreements entered into by Holdings or any Subsidiary of
Holdings.



     “Taxes” shall mean (i) any and all present or future taxes, duties,
levies, fees, imposts, assessments, deductions, withholdings or other charges,
whether computed on a separate, consolidated, unitary, combined or other basis
and any and all liabilities (including interest, fines, penalties or additions
to tax) with respect to the foregoing, and (ii) any transferee, successor,
joint and several, contractual or other liability (including, without
limitation, liability pursuant to Treasury Regulation §1.1502-6 (or any similar
provision of state, local or non-U.S. law)) in respect of any item described in
clause (i).



     “Test Period” shall mean, at any time, the four consecutive fiscal
quarters of Borrower then last ended (in each case taken as one accounting
period) for which financial statements have been or are required to be
delivered to the Administrative Agent pursuant to Section 5.01(a) or (b).



     “Title Company” shall mean any title insurance company as shall be
retained by Borrower and reasonably acceptable to the Administrative Agent.



     “Title Policy” shall mean all policies issued by the Title Company in
connection with the Prior Credit Agreement, together with endorsements to such
policies to “bring-down” the status of title and to confirm that such policies
continue to apply to the Mortgages and the Obligations under this Agreement and
the Prior Credit Agreement.



     “Transaction Documents” shall mean the Equity Financing Documents,
Qualified Senior Note Documents and the Loan Documents.



45









 





     “Transactions” shall mean, collectively, the transactions to occur on or
prior to the Original Closing Date pursuant to the Transaction Documents,
including (a) the execution and delivery of the Loan Documents and the initial
borrowings hereunder; (b) the Refinancing; (c) the Equity Financing; (d) the
execution and delivery of the Qualified Senior Note Documents and the financing
contemplated thereunder; and (e) the payment of all fees and expenses to be
paid on or prior to the Original Closing Date and owing in connection with the
foregoing.



     “Treasury Regulation” means the regulations promulgated under the Code.



     “Treaty” shall mean the treaty establishing the European Community being
the Treaty of Rome as amended from time to time.



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



     “UBS” shall have the meaning assigned to such term in the preamble hereto.



     “UCC” shall mean the Uniform Commercial Code of the State of New York or
of any other state the laws of which are required to be applied in connection
with the perfection of security interests in any Collateral.



     “Wholly Owned Subsidiary” shall mean, as to any Person, (a) any
corporation 100% of whose capital stock (other than directors’ qualifying
shares) is at the time owned by such Person and/or one or more Wholly Owned
Subsidiaries of such Person and (b) any partnership, association, joint
venture, limited liability company or other entity in which such Person and/or
one or more Wholly Owned Subsidiaries of such Person have a 100% Equity
Interest at such time. Unless otherwise set forth herein, reference in this
Agreement to “Wholly Owned Subsidiary” shall mean Holdings’ direct and indirect
Wholly Owned Subsidiaries.



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



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



     SECTION 1.03 Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words “include”, “includes” and “including”
shall be deemed to be followed by the phrase “without limitation”. The word
“will” shall be construed to have the same meaning and effect as the word
“shall”. Unless the context requires otherwise (a) any definition of or
reference to any Loan Document, agreement, instrument of other document herein
shall be construed as referring



46









 





to such agreement, instrument or other document
as from time to time amended, supplemented or otherwise modified (subject to
any restrictions on such amendments, supplements or modifications set forth
herein), (b) any reference herein to any Person shall be construed to include
such Person’s successors and assigns, (c) the words “herein”, “hereof” and
“hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement, and (f) the words “asset” and “Property” shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.



     SECTION 1.04 Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all financial statements to be delivered pursuant to this
Agreement shall be prepared in accordance with GAAP as in effect from time to
time and all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect on the date hereof unless agreed to by
Borrower and the Required Lenders. 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
equitably reflect 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 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
Securities and Exchange Commission (or successors thereto or agencies with
similar functions).



ARTICLE II.




THE CREDITS




     SECTION 2.01 Commitments. Subject to the terms and conditions and relying
upon the representations and warranties herein set forth, each Revolving Lender
agrees, severally and not jointly:



     (a) to make Revolving Loans to Borrower, at any time and from time to time
after the Closing Date until the earlier of one Business Day prior to the
Maturity Date and the termination of the Revolving Commitment of such Lender in
accordance with the terms hereof, in an aggregate principal amount at any time
outstanding that will not (subject to provisions of Sections 10.10 and 10.11)
result in such Lender’s Revolving Exposure exceeding the lesser of (A) such
Lender’s Revolving Commitment less such Lender’s Pro Rata Percentage of any
Line Reserve and (B) such Lender’s Pro Rata Percentage multiplied by the
Borrowing Base then in effect.



47









 





     (b) Within the limits set forth in clause (a) above and subject to the
terms, conditions and limitations set forth herein, Borrower may borrow, pay or
prepay and reborrow Revolving Loans.



     SECTION 2.02 Loans. (a) Each Loan (other than Swingline Loans) shall be
made as part of a Borrowing consisting of Loans made by the Lenders ratably in
accordance with their applicable Commitments; provided, that the failure of any
Lender to make any Loan shall not in itself relieve any other Lender of its
obligation to lend hereunder (it being understood, however, that no Lender
shall be responsible for the failure of any other Lender to make any Loan
required to be made by such other Lender). Except for Loans deemed made
pursuant to Section 2.02(f), Loans (other than Swingline Loans) comprising any
Borrowing shall be in an aggregate principal amount that is (i) in the case of
ABR Loans, integral multiples of $1.0 million and not less than $5.0 million or
(B) in the case of Eurodollar Revolving Loans, an integral multiple of $1.0
million and not less than $5.0 million or (ii) equal to the remaining available
balance of the applicable Revolving Commitments.



     (b) Subject to Sections 2.11 and 2.12, each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Revolving Loans as Borrower may request
pursuant to Section 2.03. Each Lender may at its option make any Eurodollar
Revolving Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided, that any exercise of such option shall not
affect the obligation of Borrower to repay such Loan in accordance with the
terms of this Agreement. Borrowings of more than one Type may be outstanding
at the same time; provided further that Borrower shall not be entitled to
request any Borrowing that, if made, would result in more than six Eurodollar
Revolving Borrowings outstanding hereunder at any one time. For purposes of
the foregoing, Borrowings having different Interest Periods, regardless of
whether they commence on the same date, shall be considered separate
Borrowings.



     (c) Except with respect to Loans made pursuant to Section 2.02(f), each
Lender shall make each Loan (other than Swingline Loans) to be made by it
hereunder on the proposed date thereof by wire transfer of immediately
available funds to such account in New York City as the Administrative Agent
may designate not later than 12:00 (noon), New York City time, and the
Administrative Agent shall promptly credit the amounts so received to an
account as directed by Borrower in the applicable Borrowing Request maintained
with the Administrative Agent or, if a Borrowing shall not occur on such date
because any condition precedent herein specified shall not have been met,
return the amounts so received to the respective Lenders.



     (d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender’s portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above, and the Administrative Agent may, in
reliance upon such assumption, make available to Borrower on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender and Borrower severally agree
to repay to the Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount
is made available to Borrower until the date such amount is repaid to the
Administrative



48









 





Agent at (i) in the case of Borrower, the interest rate
applicable at the time to the Loans comprising such Borrowing and (ii) in the
case of such Lender, a rate determined by the Administrative Agent to represent
its cost of overnight or short-term funds (which determination shall be
conclusive absent manifest error). If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount shall constitute
such Lender’s Loan as part of such Borrowing for purposes of this Agreement.



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



     (f) If the Issuing Bank shall not have received from Borrower the payment
required to be made by Section 2.18(e) within the time specified in such
Section, the Issuing Bank will promptly notify the Administrative Agent and the
Collateral Agent of the LC Disbursement and the Administrative Agent will
promptly notify each Revolving Lender of such LC Disbursement and its Pro Rata
Percentage thereof. Each Revolving Lender shall pay by wire transfer of
immediately available funds to the Administrative Agent on such date (or, if
such Revolving Lender shall have received such notice later than 12:00 (noon),
New York City time, on any day, not later than 12:00 (noon), New York City
time, on the immediately following Business Day), an amount equal to such
Lender’s Pro Rata Percentage of such LC Disbursement (it being understood that
such amount shall be deemed to constitute an ABR Revolving Loan of such Lender,
and such payment shall be deemed to have reduced the LC Exposure), and the
Administrative Agent will promptly pay to the Issuing Bank amounts so received
by it from the Revolving Lenders. The Administrative Agent will promptly pay
to the Issuing Bank any amounts received by it from Borrower pursuant to
Section 2.18(e) prior to the time that any Revolving Lender makes any payment
pursuant to this paragraph (f); any such amounts received by the Administrative
Agent thereafter will be promptly remitted by the Administrative Agent to
the Revolving Lenders that shall have made such payments and to the
Issuing Bank, as their interests may appear. If any Revolving Lender shall not
have made its Pro Rata Percentage of such LC Disbursement available to the
Administrative Agent as provided above, such Lender and Borrower severally
agree to pay interest on such amount, for each day from and including the date
such amount is required to be paid in accordance with this paragraph (f) to but
excluding the date such amount is paid, to the Administrative Agent for the
account of the Issuing Bank at (i) in the case of Borrower, a rate per annum
equal to the interest rate applicable to Revolving Loans pursuant to Section
2.06(a), and (ii) in the case of such Lender, for the first such day, the
Federal Funds Effective Rate, and for each day thereafter, the Alternate Base
Rate.



     (g) Borrower hereby authorizes the Administrative Agent to, and in its
sole election Administrative Agent may, debit to the Revolving Loan expenses
reimbursable to the Administrative Agent and the Collateral Agent, Lenders and
Issuing Bank pursuant to Section 11.03 or pursuant to other Loan Documents.



     SECTION 2.03 Borrowing Procedure. To request a Revolving Borrowing,
Borrower shall notify the Administrative Agent of such request by telephone
(promptly confirmed by telecopy) (i) in the case of a Eurodollar Revolving
Borrowing, not later than 11:00 a.m., New York City time, three Business Days
before the date of the proposed Borrowing or (ii) in the case of an ABR
Borrowing, (other than Swingline Loans), not later than 10:00 a.m., New York
City



49









 





time, on the Business Day of the proposed Borrowing. Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Borrowing Request
in a form approved by the Administrative Agent and signed by Borrower. Each
such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:




     (a) whether the requested Borrowing is to be a Revolving Borrowing
or a Swingline Loan;




     (b) the aggregate amount of such Borrowing;




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




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




     (e) in the case of a Eurodollar Revolving Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term “Interest Period”; provided,
that until the earlier of (i) the date on which the Administrative Agent
and the Collateral Agent shall have notified Borrower that the primary
syndication of the Commitments has been completed and (ii) the date which
is 180 days after the Original Closing Date, the Interest Period shall be
one month;




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




     (g) that the conditions set forth in Section 4.02 (b)-(e) are
satisfied as of the date of the notice.



     If no election as to the Type of Borrowing is specified, then the
requested Borrowing shall be an ABR Borrowing. If no Interest Period is
specified with respect to any requested Eurodollar Revolving Borrowing, then
Borrower shall be deemed to have selected an Interest Period of one month’s
duration (subject to the proviso in clause (e) above). Promptly following
receipt of a Borrowing Request in accordance with this Section 2.03, the
Administrative Agent shall notify Collateral Agent of the borrowing Request,
confirm with Collateral Agent that the funding of such Borrowing Request is in
conformity with this Section 2.03 and advise each Lender of the details thereof
and of the amount of such Lender’s Loan to be made as part of the requested
Borrowing.



     SECTION 2.04 Evidence of Debt; Repayment of Loans. (a) Borrower hereby
unconditionally promises to pay (i) to the Administrative Agent for the account
of each Revolving Lender, the then unpaid principal amount of each Revolving
Loan of such Lender on the Maturity Date and (ii) to the Swingline Lender the
then unpaid principal amount of each Swingline Loan on the earlier of the
Maturity Date and the 10th day (or earlier, but, subject to application of
funds under Section 9.01(f), at least two Business Days) after such Swingline
Loan is made; provided, that on each date that a Revolving Borrowing is made,
Borrower shall repay all Swingline Loans that were outstanding on the date such
Borrowing was requested.



50









 





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



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



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



     (e) Any Lender may request that Loans of any Class made by it be evidenced
by a promissory note. In such event, Borrower shall prepare, execute and
deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such
Lender and its registered assigns) in the form of Exhibit H-1 or H-2, as
the case may be. Thereafter, the Loans evidenced by such promissory note and
interest thereon shall at all times (including after assignment pursuant to
Section 11.04) be represented by one or more promissory notes in such form
payable to the order of the payee named therein (or, if such promissory note is
a registered note, to such payee and its registered assigns).



     (f) All funds in the Blocked Accounts (including the Concentration
Account) shall be applied to the Loans and other Obligations in accordance with
Section 9.01 hereof.



     SECTION 2.05 Fees. (a) Commitment Fee. Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee (a
“Commitment Fee”), equal to 0.5% per annum on the average daily unused amount
of each Commitment of such Lender during the period from and including the
Original Closing Date to but excluding the date on which such Commitment
terminates. Accrued Commitment Fees shall be payable in arrears on the last
day of March, June, September and December of each year and on the date on
which the Revolving Commitments terminate, commencing on the first such date to
occur after the Original Closing Date. All Commitment Fees shall be computed
on the basis of a year of 360 days and shall be payable for the actual number
of days elapsed (including the first day but excluding the last day). For
purposes of computing Commitment Fees with respect to Revolving Commitments, a
Revolving Commitment of a Lender shall be deemed to be used to the extent of
the outstanding Revolving Loans and LC Exposure of such Lender (and the
Swingline Exposure of such Lender shall be disregarded for such purpose).



     (b) Administrative Agent Fees; Collateral Agent Fees. Borrower agrees to
pay to the (i) the Administrative Agent, for its own account, the
administrative fees set forth in the Fee Letter



51









 





or such other fees payable in
the amounts and at the times separately agreed upon between Borrower and the
Administrative Agent (the “Administrative Agent Fees”) and (ii) (i) Collateral
Agent, for its own account, the collateral monitoring fee set forth in the Fee
Letter or such other fees payable in the amounts and at the times separately
agreed upon between Borrower and the Collateral Agent (the “Collateral Agent
Fees”).



     (c) LC and Fronting Fees. Borrower agrees to pay (i) to the
Administrative Agent for the account of each Revolving Lender a participation
fee (“LC Participation Fee”) with respect to its participations in Letters of
Credit, which shall accrue at a rate equal to the Applicable Margin from time
to time used to determine the interest rate on Eurodollar Revolving Loans
pursuant to Section 2.06 on the average daily amount of such Lender’s LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Original Closing Date
to but excluding the later of the date on which such Lender’s Revolving
Commitment terminates and the date on which such Lender ceases to have any LC
Exposure, and (ii) to the Issuing Bank a fronting fee (“Fronting Fee”), which
shall accrue at the rate of 0.125% per annum on the average daily amount of the
LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements) during the period
from and including the Original Closing Date to but excluding the later of the
date of termination of the Revolving Commitments and the date on which there
ceases to be any LC Exposure, as well as the Issuing Bank’s standard fees with
respect to the issuance, amendment, renewal or extension of any Letter of
Credit or processing of drawings thereunder. LC Participation Fees and
Fronting Fees accrued through and including the last day of March, June,
September and December of each year shall be payable on the third Business Day
following such last day, commencing on the first such date to occur after the
Original Closing Date; provided, that all such fees shall be payable on the
date on which the Revolving Commitments terminate and any such fees accruing
after the date on which the Revolving Commitments terminate shall be payable on
demand. Any other fees payable to the Issuing Bank pursuant to this paragraph
shall be payable within 10 days after demand. All LC Participation Fees and
Fronting Fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day). Following the occurrence and during the continuance
of an Event of Default, the LC Participation Fee shall be increased to a per
annum rate equal to 2% plus the otherwise applicable rate with respect thereto.



     (d) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders, except that the Fronting Fees shall be paid directly to the
Issuing Bank. Once paid, none of the Fees shall be refundable under any
circumstances.



     SECTION 2.06 Interest on Loans and Default Compensation. (a) Subject to
the provisions of Section 2.06(c), the Loans comprising each ABR Borrowing and
each Swingline Loan, shall bear interest at a rate per annum equal to the
Alternate Base Rate plus the Applicable Margin in effect from time to time.



     (b) Subject to the provisions of Section 2.06(c), the Loans comprising
each Eurodollar Revolving Borrowing shall bear interest at a rate per annum
equal to the Adjusted LIBOR Rate for the Interest Period in effect for such
Borrowing plus the Applicable Margin in effect from time to time.



52









 





     (c) Notwithstanding the foregoing, following the occurrence and during the
continuance of an Event of Default, all Obligations shall, upon written notice
from the Administrative Agent, or at the election of the Required Lenders, bear
interest, after as well as before judgment, at a per annum rate equal to (i) in
the case of principal of any Loan, 2% plus the rate otherwise applicable to
such Loan as provided in the preceding paragraphs of this Section 2.06, (ii) LC
Participation Fee shall increase as provided in Section 2.05(c), and (iii) in
the case of any other amount, 2% plus the rate applicable to ABR Revolving
Loans as provided in paragraph (a) of this Section 2.06.



     (d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and upon termination of the Revolving
Commitments; provided, that (i) interest accrued pursuant to paragraph (c) of
this Section 2.06 shall be payable on demand
(provided, that, absent demand, such interest shall be payable on each
Interest Payment Date and upon termination of the Revolving Commitments), (ii)
in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the Revolving
Availability Period), accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and (iii)
in the event of any conversion of any Eurodollar Revolving Loan prior to the
end of the current Interest Period therefor, accrued interest on such Loan
shall be payable on the effective date of such conversion.



     (e) All interest hereunder shall be computed on the basis of a year of 360
days, except that interest computed by reference to the Alternate Base Rate
shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). The applicable Alternate
Base Rate or Adjusted LIBOR Rate shall be determined by the Administrative
Agent in accordance with the provisions of this Agreement and such
determination shall be conclusive absent manifest error.



     SECTION 2.07 Termination and Reduction of Commitments. (a) The
Revolving Commitments, the Swingline Commitment, and the LC Commitment shall
automatically terminate on the Maturity Date.



     (b) Borrower may at any time terminate, or from time to time permanently
reduce, the Commitments of any Class; provided, that (i) each reduction of the
Commitments of any Class shall be in an amount that is an integral multiple of
$1.0 million and not less than $5.0 million, (ii) the Commitments shall not be
reduced to an amount less than $175.0 million and (iii) the Commitments shall
not be terminated or reduced if, after giving effect to any concurrent
prepayment of the Loans in accordance with Section 2.10, the sum of the
Revolving Exposures would exceed the aggregate amount of Revolving Commitments,
the Swingline Exposures would exceed the Swingline Commitment or the LC
Exposures would exceed the LC Commitment.



     (c) Borrower shall notify the Administrative Agent of any election to
terminate or reduce the Commitments under paragraph (b) of this Section 2.07 at
least three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by Borrower pursuant to
this Section 2.07 shall be irrevocable. Any termination or reduction of the
Commitments of any Class shall be



53









 





permanent. Each reduction of the Commitments
of any Class shall be made ratably among the Lenders in accordance with their
respective Commitments of such Class.



     SECTION 2.08 Interest Elections. (a) Each Revolving Borrowing initially
shall be of the Type specified in the applicable Borrowing Request and, in the
case of a Eurodollar Revolving Borrowing, shall have an initial Interest Period
as specified in such Borrowing Request. Thereafter, Borrower may elect to
convert such Borrowing to a different Type or to continue such Borrowing and,
in the case of a Eurodollar Revolving Borrowing, may elect Interest Periods
therefor, all as provided in this
Section 2.08. Borrower may elect different options with respect to
different portions of the affected Borrowing, in which case each such portion
shall be allocated ratably among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing. Notwithstanding anything to the contrary, Borrower shall
not be entitled to request any conversion or continuation that, if made, would
result in more than six Eurodollar Revolving Borrowings outstanding hereunder
at any one time. This Section 2.08 shall not apply to Swingline Loans, which
may not be converted or continued.



     (b) To make an election pursuant to this Section 2.08, Borrower shall
notify the Administrative Agent of such election by telephone by the time that
a Borrowing Request would be required under Section 2.03 if Borrower was
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request substantially in the form of Exhibit D.



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



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



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



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



          (iv) if the resulting Borrowing is a Eurodollar Revolving Borrowing, the
Interest Period to be applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of the term “Interest
Period”; provided, that until the earlier of (i) the date on which the
Administrative Agent and the Collateral Agent shall have notified Borrower that
the primary syndication of the Commitments has been completed and (ii) the date
which is 180 days after the Original Closing Date, the Interest Period shall be
one month.



54









 





If any such Interest Election Request requests a Eurodollar Revolving Borrowing
but does not specify an Interest Period, then Borrower shall be deemed to have
selected an Interest Period of one month’s duration (subject to the proviso in
clause (iv) above).



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



     (e) If an Interest Election Request with respect to a Eurodollar Revolving
Borrowing is not timely delivered prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as provided herein,
at the end of such Interest Period such Borrowing shall be converted to an ABR
Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies Borrower, then, after the
occurrence and during the continuance of such Event of Default (i) no
outstanding Borrowing may be converted to or continued as a Eurodollar
Revolving Borrowing and (ii) unless repaid, each Eurodollar Revolving Borrowing
shall be converted to an ABR Borrowing at the end of the Interest Period
applicable thereto.



     (f) Any Existing ABR Borrowing outstanding on the Closing Date shall be
deemed to be refinanced on the Closing Date with a new ABR Borrowing, bearing
interest as provided in this Agreement, and such new Borrowing shall be deemed
to be advanced under this Agreement to repay such Existing ABR Borrowings.
Each Existing Eurodollar Revolving Borrowing outstanding on the Closing Date
shall remain outstanding and in all respects be continuing after the Closing
Date and shall be deemed to be a Eurodollar Revolving Borrowing hereunder,
having the Interest Period that commenced on the date of such Existing
Eurodollar Revolving Borrowing (each such Eurodollar Revolving Borrowing being
a “Grandfathered Eurodollar Borrowing” and each such Interest Period being a
“Grandfathered Interest Period”). From and including the Closing Date until
and including the last day of the relevant Grandfathered Interest Period, each
Grandfathered Eurodollar Revolving Borrowing shall bear interest per annum
equal to the Adjusted LIBOR Rate for the applicable Grandfathered Interest
Period plus the Applicable Margin applicable thereto under the Prior Credit
Agreement. Thereafter, Borrower may make elections with respect to the
Grandfathered Eurodollar Borrowings as provided in Section 2.08, and all such
Loans shall bear interest as provided in this Agreement.



     SECTION 2.09 [Intentionally Omitted].



     SECTION 2.10 Optional and Mandatory Prepayments of Loans.



     (a) Optional Prepayments. In addition to prepayments of Borrowings in
accordance with Section 9.01 or Section 2.17(c) hereof, Borrower shall have the
right at any time and from time to time to prepay any Borrowing, in whole or in
part, subject to the requirements of this Section 2.10; provided, that each
partial prepayment shall be in an amount that is an integral multiple of $1.0
million and not less than $5.0 million.



     (b) Revolving Loan and Swingline Loan Prepayments.



          (i) In the event of the termination of all the Revolving Commitments,
Borrower shall, on the date of such termination, repay or prepay all its
outstanding Revolving



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Borrowings and all outstanding Swingline Loans and
replace all outstanding Letters of Credit and/or deposit an amount equal to the
LC Exposure in the Cash Collateral Account.



          (ii) In the event of any partial reduction of the Revolving Commitments,
then (A) at or prior to the effective date of such reduction, the
Administrative Agent shall notify Borrower and the Revolving Lenders of the sum
of the Revolving Exposures after giving effect
thereto and (B) if the sum of the Revolving Exposures would exceed the
aggregate amount of Revolving Commitments after giving effect to such
reduction, then Borrower shall, on the date of such reduction, make prepayments
in accordance with Section 2.10(i) in an amount sufficient to eliminate such
excess.



          (iii) In the event that Excess Availability is less than $15.0 million,
the Borrower shall, without notice or demand, immediately apply an amount equal
to such deficiency to prepay the Loans and any interest accrued thereon, in
accordance with this Section 2.10(b)(iii). The Borrower shall make prepayments
in accordance with Section 2.10(i) in an amount sufficient to restore such
Excess Availability. Notwithstanding the foregoing, any Overadvance made
pursuant to Section 10.10 shall be repaid only on demand in accordance with
such Section.



          (iv) In the event that the sum of all Lenders’ Revolving Exposures exceeds
the Revolving Commitments then in effect (including, without limitation, on any
date on which Dollar Equivalents are determined pursuant to Section 11.15), the
Borrower shall, without notice or demand, make prepayments in accordance with
Section 2.10(i) in an amount sufficient to eliminate such excess.



          (v) In the event that the aggregate LC Exposure exceeds the LC Commitment
then in effect (including, without limitation, on any date on which Dollar
Equivalents are determined pursuant to Section 11.15), the Borrower shall,
without notice or demand, immediately replace or cash collateralize outstanding
Letters of Credit in accordance with the procedures set forth in Section
2.18(j), in an amount sufficient to eliminate such excess.



     (c) Asset Sales. Not later than one Business Day following the receipt of
any Net Cash Proceeds of any Asset Sale by a Loan Party, Borrower shall, and
shall cause the applicable Loan Party (with appropriate adjustments to any
intercompany loan account balances or Borrowing Base Guarantor Intercompany
Loan Account balances, as applicable) to, apply 100% of the Net Cash Proceeds
received with respect thereto to make prepayments in accordance with Section
2.10(i); provided, that:



          (i) no such prepayment shall be required with respect to (A) any Asset
Sale permitted by Section 6.05(b)(ii), (e) or (h), (B) the disposition of
assets subject to a condemnation or eminent domain proceeding or insurance
settlement to the extent it does not constitute a Casualty Event, or (C) Asset
Sales for fair market value resulting in no more than $100,000 in Net Cash
Proceeds per Asset Sale (or series of related Asset Sales) and less than $1.0
million in Net Cash Proceeds in any fiscal year; and



          (ii) subject to Section 2.10(g) and so long as no Event of Default shall
then exist or would arise therefrom and the aggregate of such Net Cash Proceeds
of Asset Sales



56









 





(except Asset Sales permitted under Section 6.05(b)(v)) shall
not exceed $5.0 million in any fiscal year, such proceeds shall not be required
to be so applied on such date to the extent that Borrower shall have delivered
an Officers’ Certificate to the Administrative Agent on or prior to such date
stating that such Net Cash Proceeds shall be used to purchase replacement
assets or acquire 100% of the Equity Interests of any Person that owns such
assets no later than 270 days following the date of such Asset Sale (which
Officers’ Certificate shall set forth the estimates of
the proceeds to be so expended); provided, that all Property purchased
with the Net Cash Proceeds thereof (other than such Property purchased by a
Foreign Subsidiary in connection with a Foreign Permitted Asset Sale) pursuant
to this subsection shall be made subject to the Lien of the applicable Security
Documents in favor of the Collateral Agent, for its benefit and for the benefit
of the other Secured Parties in accordance with Sections 5.11 and 5.12;



     (d) Debt Issuance. Upon any Debt Issuance after the Original Closing Date
(other than Acquisition Debt Issuance), Borrower shall, and shall cause the
other Loan Parties to, make prepayments in accordance with Sections 2.10(i) in
an aggregate principal amount equal to 100% of the Net Cash Proceeds of such
Debt Issuance.



     (e) [Intentionally Omitted].



     (f) Casualty Events. Not later than one Business Day following the
receipt of any Net Cash Proceeds from a Casualty Event, Borrower shall apply,
and shall cause other Loan Parties (with appropriate adjustments to any
intercompany loan account balances or Borrowing Base Guarantor Intercompany
Loan Account balances, as applicable) to apply, an amount equal to 100% of such
Net Cash Proceeds to make prepayments in accordance with Sections 2.10(i);
provided, that subject to Section 2.10(g) and so long as no Event of Default
shall then exist or arise therefrom, such proceeds shall not be required to be
so applied on such date to the extent that in the event such Net Cash Proceeds
shall not exceed $5.0 million in the aggregate at any time, Borrower shall have
delivered an Officers’ Certificate (which Officers’ Certificate shall set forth
the estimates of the proceeds to be so expended) to the Administrative Agent
and the Collateral Agent on or prior to such date stating that such proceeds
shall be used to repair, replace or restore any Property that is subject of a
Casualty Event no later than 270 days following the date of receipt of such
proceeds; provided, further, that all Property purchased with the Net Cash
Proceeds thereof pursuant to this subsection shall be made subject to the Lien
of the applicable Security Documents in favor of the Collateral Agent, for its
benefit and for the benefit of the other Secured Parties in accordance with
Sections 5.11 and 5.12.



     (g) In the event that Borrower has delivered an Officers’ Certificate in
accordance with Section 2.10(c)(ii) or in accordance with Section 2.10(f), (i)
both a Reserve and a Line Reserve (“Reinvestment Reserve”) shall be established
(in the amount of the Net Cash Proceeds less, in the case of a Casualty Event,
the Net Cash Proceeds attributable to lost or destroyed Inventory) which shall
each be released simultaneously with and to the extent of any Loans advanced to
the Borrower for the purpose of purchasing assets in accordance with Section
2.10(c)(ii) or 2.10(f), as applicable; provided, that Borrower submits (with
the applicable Borrowing Request) an Officer’s Certificate setting forth the
use of proceeds of the requested Loan and confirming that such use is in
compliance with Section 2.10(c)(ii) or 2.10(f), as applicable, and (ii) in the
event that any part or all of the Reinvestment Reserve remains in place at the
end of the time period set forth in Section 2.10(c)(ii) or 2.10(f), as
applicable:



57









 






     (A) Borrower shall, and shall cause other Loan Parties to (with
appropriate adjustments to any intercompany loan account balances or
Borrowing Base Guarantor Intercompany Loan Account balances, as
applicable) prepay Obligations in accordance (with a concurrent release
of such Reinvestment Reserve) with Section 2.10(i) in the amount of such
remaining Reinvestment Reserve without reducing Commitments, and




     (B) if such Reinvestment Reserve relates to Eligible Equipment or
Eligible Real Property, (x) such Eligible Equipment or Eligible Real
Property shall be deleted from Schedule 1.01(d) and Schedule 1.01(d)
shall be amended in accordance with the definition of the term “Fixed
Asset Loan Value” (with appropriate adjustments to the Borrowing Base
Guarantor Intercompany Loan Account), and (y) the Fixed Asset Loan Value
of the Person owning such Eligible Equipment or Eligible Real Property
shall be reduced by an amount equal to the appraised net orderly
liquidation value of Eligible Equipment or the appraised fair market
value of Eligible Real Property, as applicable.



     For the purposes of determining whether clause (B) of this paragraph (g)
shall apply, any Equipment located on one of the locations listed on Schedule
1.01(e) shall be deemed Eligible Equipment and therefore clause (B) of this
paragraph (g) shall apply with respect to such Equipment and the amount of the
Net Cash Proceeds of such Equipment shall be deemed to be the appraised net
orderly liquidation value thereof.



     (h) [Intentionally Omitted.]



     (i) Application of Prepayments.



          (i) Prior to any optional or mandatory prepayment of Borrowings hereunder,
Borrower shall select the Borrowing or Borrowings to be prepaid and shall
specify such selection in the notice of such prepayment pursuant to paragraph
(i) of this Section 2.10(i). Subject to Section 9.04 and so long as no Event
of Default shall then exist and be continuing, all mandatory prepayments shall
be applied as follows: first, to Fees and reimbursable expenses of the
Administrative Agent and the Collateral Agent then due and payable pursuant to
the Loan Documents; second, to interest then due and payable on all Loans;
third, to the principal balance of the Swingline Loan until the same has been
repaid in full; fourth, to the outstanding principal balance of Revolving Loans
until the same has been paid in full, including accompanying accrued interest
and charges under Sections 2.12, 2.13 and 2.15 (Borrower may elect which of any
Eurodollar Revolving Borrowings is to be prepaid); fifth, to cash collateralize
all LC Exposures plus any accrued and unpaid Fees with respect thereto (to be
held and applied in accordance with Section 2.18(j) hereof); sixth, to all
other Obligations pro rata in accordance with the amounts that such Lender
certifies is outstanding; and, seventh, returned to Borrower or to such party
as otherwise required by law. All such mandatory prepayments of the Revolving
Loans shall cause a corresponding reduction in the Revolving Commitments of the
Lenders in accordance with their applicable Revolving Commitments.



          (ii) Amounts to be applied pursuant to this Section 2.10 to the prepayment
of Revolving Loans shall be applied, as applicable, first to reduce outstanding
ABR Revolving Loans, respectively. Any amounts remaining after each such
application shall be applied to prepay Eurodollar Revolving Loans, as
applicable. Notwithstanding the foregoing, if the amount



58









 





of any prepayment of
Loans required under this Section 2.10 shall be in excess of the amount of the
ABR Loans at the time outstanding, only the portion of the amount of such
prepayment as is equal to the amount of such outstanding ABR Loans shall be
immediately prepaid and, at the election of Borrower, the balance of such
required prepayment shall be prepaid immediately, together with any amounts
owing to the Lenders under Section 2.13.



     (j) Notice of Prepayment. Borrower shall notify the Administrative Agent
(and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case
of prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 a.m.,
New York City time, three Business Days before the date of prepayment, (ii) in
the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York
City time, one Business Day before the date of prepayment or (iii) in the case
of prepayment of a Swingline Loan, not later than 12:00 (noon), New York City
time, on the date of prepayment. Each such notice shall be irrevocable and
shall specify the prepayment date, the principal amount of each Borrowing or
portion thereof to be prepaid and, in the case of a mandatory prepayment, a
reasonably detailed calculation of the amount of such prepayment. Promptly
following receipt of any such notice (other than a notice relating solely to
Swingline Loans), the Administrative Agent shall advise the Lenders of the
contents thereof. Each partial repayment of any Borrowing shall be in an
amount that would be permitted in the case of an advance of a Borrowing of the
same Type as provided in Section 2.02, except as necessary to apply fully the
required amount of a mandatory prepayment. Each prepayment of a Borrowing
shall be applied ratably to the Loans included in the prepaid Borrowing.
Prepayments shall be accompanied by accrued interest to the extent required by
Section 2.06.



     SECTION 2.11 Alternate Rate of Interest. If prior to the commencement of
any Interest Period for a Eurodollar Revolving Borrowing:



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



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



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



     SECTION 2.12 Increased Costs. (a) If any Change in Law shall:



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



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



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



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



     (c) A certificate of a Lender or the Issuing Bank setting forth the amount
or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section 2.12 shall be delivered to Borrower and shall be conclusive absent
manifest error. Borrower shall pay Administrative Agent for the account of
such Lender or the Issuing Bank, as the case may be, the amount shown as due on
any such certificate within 10 days after receipt thereof.



     (d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section 2.12 shall not constitute a waiver
of such Lender’s or the Issuing Bank’s right to demand such compensation;
provided, that Borrower shall not be required to compensate a Lender or the
Issuing Bank pursuant to this Section 2.12 for any increased costs or
reductions incurred more than 270 days prior to the date that such Lender or
the Issuing Bank, as the case may be, notifies Borrower of the Change in Law
giving rise to such increased costs or reductions and of such Lender’s or the
Issuing Bank’s intention to claim compensation therefor; provided, further
that, if the Change in Law giving rise to such increased



60









 





costs or reductions is
retroactive, then the 270-day period referred to above shall not begin earlier
than the date of effectiveness of the Change in Law.



     SECTION 2.13 Breakage Payments. In the event of (a) the payment or
prepayment, whether optional or mandatory, of any principal of any Eurodollar
Revolving Loan other than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default), (b) the conversion of
any Eurodollar Revolving Loan other than on the last day of the Interest Period
applicable thereto, (c) the failure to borrow, convert, continue or prepay any
Revolving Loan on the date specified in any notice delivered pursuant hereto or
(d) the assignment of any Eurodollar Revolving Loan other than on the last day
of the Interest Period applicable thereto as a result of a request by Borrower
pursuant to Section 2.16, then, in any such event, Borrower shall compensate
each Lender for the loss, cost and expense attributable to such event. In the
case of a Eurodollar Revolving Loan, such loss, cost or expense to any Lender
shall be deemed to include an amount determined by such Lender to be the
excess, if any, of (i) the amount of interest which would have accrued on the
principal amount of such Loan had such event not occurred, at the Adjusted
LIBOR Rate that would have been applicable to such Loan, for the period from
the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan), over (ii) the
amount of interest which would accrue on such principal amount for such period
at the interest rate which such Lender would bid were it to bid, at the
commencement of such period, for Dollar deposits of a comparable amount and
period from other banks in the Eurodollar market. A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive
pursuant to this Section 2.13 shall be delivered to Borrower and Administrative
Agent and shall be conclusive absent manifest error. Borrower shall pay
Administrative Agent for the account of such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.



     SECTION 2.14 Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) Borrower shall make each payment required to be made by it hereunder or
under any other Loan Document (whether of principal, interest, fees or
reimbursement of LC Disbursements, or of amounts payable under Section 2.12,
2.13 or 2.15, or otherwise) on or before the time expressly required hereunder
or under such other Loan Document for such payment (or, if no such time is
expressly required, prior to 2:00 p.m., New York City time), on the date when
due, in immediately available funds, without setoff or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 677 Washington
Boulevard, Stamford, Connecticut, except payments to be made directly to the
Issuing Bank or Swingline Lender as expressly provided herein and except that
payments pursuant to Sections 2.12, 2.13, 2.15 and 11.03 shall be made to the
Administrative Agent for the benefit of to the Persons entitled thereto and
payments pursuant to other Loan Documents shall be made to the Administrative
Agent for the benefit of the Persons specified therein. The Administrative
Agent shall distribute any such payments received by it for the account of any
other Person to the appropriate recipient promptly following receipt thereof.
If any payment under any Loan Document shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing



61









 





interest, interest thereon shall be payable for the period of such
extension. All payments under each Loan Document shall be made in Dollars.



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



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



     (d) Unless the Administrative Agent shall have received notice from
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that
Borrower will not make such payment, the Administrative Agent may assume that
Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders or the Issuing Bank,
as the case may be, the amount due. In such event, if Borrower has not in fact
made such payment, then each of the Lenders or the Issuing Bank, as the case
may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or Issuing Bank with interest
thereon, for each day from and including the date such amount is distributed
to it to but excluding the date of payment to the Administrative Agent, at
the greater of the



62









 





Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.



     (e) If any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.02(c), 2.02(f), 2.14(d), 2.17(d), 2.18(d) or 11.03(d),
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender’s
obligations under such Sections until all such unsatisfied obligations are
fully paid.



     SECTION 2.15 Taxes. (a) Any and all payments by or on account of any
obligation of Borrower or any Borrowing Base Guarantor hereunder or under any
other Loan Document shall be made without set-off, counterclaim or other
defense and free and clear of and without deduction or withholding for any and
all Indemnified Taxes; provided, that if Borrower or such Borrowing Base
Guarantor shall be required by law to deduct any Indemnified Taxes from such
payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions or withholdings
applicable to additional sums payable under this Section 2.15) the
Administrative Agent, Lender or Issuing Bank (as the case may be) receives an
amount equal to the sum it would have received had no such deductions or
withholdings been made, (ii) Borrower or such Borrowing Base Guarantor shall
make such deductions or withholdings and (iii) Borrower or such Borrowing Base
Guarantor shall pay the full amount deducted or withheld to the relevant
Governmental Authority in accordance with applicable law.



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



     (c) Borrower shall indemnify and pay the Administrative Agent, each Lender
and the Issuing Bank, within 10 Business Days after written demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or the Issuing Bank, as the case may be, on
or with respect to any payment by or on account of any obligation of Borrower
hereunder or under any other Loan Document (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under
this Section 2.15) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to Borrower by a Lender or the Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or the Issuing
Bank, shall be conclusive absent manifest error.



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



     (e) Any Foreign Lender that is entitled to an exemption from or reduction
of withholding tax under the law of the jurisdiction in which Borrower is
located, or any treaty to which such



63









 





jurisdiction is a party, with respect to
payments under this Agreement shall deliver to Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law, such
properly completed and executed documentation prescribed by applicable law or
reasonably requested by Borrower as will permit such payments to be made
without withholding or at a reduced rate. Each Foreign Lender either (1) (i)
agrees to furnish either U.S. Internal Revenue Service Form W-8ECI or U.S.
Internal Revenue Service Form W-8BEN (or successor form) and (ii) agrees (for
the benefit of Borrower and the Administrative Agent), to the extent it may
lawfully do so at such times, upon reasonable request by Borrower or the
Administrative Agent, to provide a new Form W-8ECI or Form W-8BEN (or successor
form) upon the expiration or obsolescence of any previously delivered form to
reconfirm any complete exemption from, or any entitlement to a reduction in,
U.S. federal withholding tax with respect to any interest payment hereunder or
(2) in the case of any such Foreign Lender that is not a “bank” within the
meaning of Section 881(c)(3)(A) of the Code, (i) agrees to furnish either (a) a
“Non-Bank Certificate” in a form acceptable to the Administrative Agent and the
Borrower and two accurate and complete original signed copies of Internal
Revenue Service Form W-8BEN (or successor form) or (b) an Internal Revenue Form
W-8ECI (or successor form), certifying (in each case) to such Foreign Lender’s
legal entitlement to an exemption or reduction from U.S. federal withholding
tax with respect to all interest payments hereunder and (ii) agrees (for the
benefit of Borrower and the Administrative Agent) to the extent it may lawfully
do so at such times, upon reasonable request by Borrower or the Administrative
Agent, to provide a new Form W-8BEN or W-8ECI (or successor form) upon the
expiration or obsolescence of any previously delivered form to reconfirm any
complete exemption from, or any entitlement to a reduction in, U.S. federal
withholding tax with respect to any interest payment hereunder.



     (f) If the Administrative Agent or a Lender (or an assignee) determines in
its reasonable discretion that it has received a refund of any Indemnified
Taxes or Other Taxes as to which it has been indemnified by Borrower or with
respect to which Borrower has paid additional amounts pursuant to this Section
2.15, it shall pay over such refund to Borrower (but only to the extent of
indemnity payments made, or additional amounts paid, by Borrower under this
Section 2.15 with respect to the Indemnified Taxes or the Other Taxes giving
rise to such refund), net of all out-of-pocket expenses of the Administrative
Agent or such Lender (or assignee) and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such
refund); provided, however, that Borrower, upon the request of the
Administrative Agent or such Lender (or assignee), agrees to repay the amount
paid over to Borrower (plus any penalties, interest or other charges imposed by
the relevant Governmental Authority) to the Administrative Agent or such Lender
(or assignee) in the event the Administrative Agent or such Lender (or
assignee) is required to repay such refund to such Governmental Authority.
Nothing contained in this Section 2.15(f) shall require the Administrative
Agent or any Lender (or assignee) to make available its tax returns or any
other information which it deems confidential to Borrower or any other Person.
Notwithstanding anything to the contrary, in no event will any Lender be
required to pay any amount to Borrower the payment of which would place such
Lender in a less favorable net after-tax position than such Lender would have
been in had the additional amounts
giving rise to such refund of any Indemnified Taxes or Other Taxes never
been paid in the first place.



     SECTION 2.16 Mitigation Obligations; Replacement of Lenders. (a)
Mitigation of Obligations. If any Lender requests compensation under Section
2.12, or if Borrower is required



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



     (b) Replacement of Lenders. If any Lender requests compensation under
Section 2.12, or if Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.15, or if any Lender defaults in its obligation to fund Loans
hereunder, then Borrower may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 11.04), all of its interests, rights and obligations under
this Agreement to an assignee selected by Borrower that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided, that (i) Borrower shall have received the prior written
consent of the Administrative Agent and the Collateral Agent (and, if a
Revolving Commitment is being assigned, the Issuing Bank and Swingline Lender),
which consent shall not unreasonably be withheld, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans
and participations in LC Disbursements and Swingline Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or Borrower (in the case of all other amounts) and (iii) in the case of
any such assignment resulting from a claim for compensation under Section 2.12
or payments required to be made pursuant to Section 2.15, such assignment will
result in a material reduction in such compensation or payments. A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling Borrower to require such assignment and delegation cease to apply.



     SECTION 2.17 Swingline Loans. (a) Swingline Commitment. Subject to the
terms and conditions set forth herein, the Swingline Lender agrees to make
Swingline Loans to Borrower from time to time during the Revolving Availability
Period, in an aggregate principal amount at any time outstanding that will not
result in (i) the aggregate principal amount of outstanding Swingline Loans
exceeding $20.0
million or (ii) the sum of the total Revolving Exposures exceeding the
lesser of (A) the total Revolving Commitments minus any Reinvestment Reserve
and (B) the Borrowing Base then in effect; provided, that the Swingline Lender
shall not be required to make a Swingline Loan to refinance an outstanding
Swingline Loan. Within the foregoing limits and subject to the terms and
conditions set forth herein, Borrower may borrow, repay and reborrow Swingline
Loans.



     (b) Swingline Loans. To request a Swingline Loan, Borrower shall notify
the Administrative Agent of such request by telephone (confirmed by telecopy),
not later than 2:00 p.m., New York City time, on the day of a proposed
Swingline Loan. Each such notice shall be irrevocable and shall specify the
requested date (which shall be a Business Day) and amount of



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the requested
Swingline Loan. The Administrative Agent will promptly advise the Swingline
Lender of any such notice received from Borrower. The Swingline Lender shall
make each Swingline Loan available to Borrower by means of a credit to the
general deposit account of Borrower with the Swingline Lender (or, in the case
of a Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.18(e), by remittance to the Issuing Bank) by 3:00 p.m.,
New York City time, on the requested date of such Swingline Loan. Borrower
shall not request a Swingline Loan if at the time of and immediately after
giving effect to such request a Default has occurred and is continuing.
Swingline Loans shall be made in minimum amounts of $500,000 and integral
multiples of $100,000 above such amount.



     (c) Prepayment. Borrower shall have the right at any time and from time
to time to repay any Swingline Loan, in whole or in part, upon giving written
or telecopy notice (or telephone notice promptly confirmed by written, or
telecopy notice) to the Swingline Lender and to the Administrative Agent before
12:00 (noon), New York City time on the date of repayment at the Swingline
Lender’s address for notices specified in the Swingline Lender’s Administrative
Questionnaire; provided, that each partial prepayment shall be in an amount
that is an integral multiple of $100,000 and not less than $500,000. All
principal payments of Swingline Loans shall be accompanied by accrued interest
on the principal amount being repaid to the date of payment



     (d) Participations. The Swingline Lender may by written notice given to
the Administrative Agent not later than 12:00 (noon), New York City time, on
any Business Day require the Revolving Lenders to acquire participations on
such Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which Revolving
Lenders will participate. Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each Revolving Lender,
specifying in such notice such Lender’s Pro Rata Percentage of such Swingline
Loan or Loans. Each Revolving Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above, to pay to the Administrative
Agent, for the account of the Swingline Lender, such Lender’s Pro Rata
Percentage of such Swingline Loan or Loans. Each Revolving Lender acknowledges
and agrees that its obligation to acquire participations in Swingline Loans
pursuant to this paragraph is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever (provided, that such payment shall not cause
such Lender’s Revolving Exposure to exceed such Lender’s Revolving
Commitment). Each Revolving Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner
as provided in Section 2.02(f) with respect to Loans made by such Lender (and
Section 2.02 shall apply, mutatis mutandis, to the payment obligations of the
Revolving Lenders), and the Administrative Agent shall promptly pay to the
Swingline Lender the amounts so received by it from the Revolving Lenders. The
Administrative Agent shall notify Borrower of any participations in any
Swingline Loan acquired pursuant to this paragraph, and thereafter payments in
respect of such Swingline Loan shall be made to the Administrative Agent and
not to the Swingline Lender. Any amounts received by the Swingline Lender from
Borrower (or other party on behalf of Borrower) in respect of a Swingline Loan
after receipt by the Swingline Lender of the proceeds of a sale of
participations therein shall be promptly remitted to the Administrative Agent;
any such amounts



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received by the Administrative Agent shall be promptly
remitted by the Administrative Agent to the Revolving Lenders that shall have
made their payments pursuant to this paragraph and to the Swingline Lender, as
their interests may appear. The purchase of participations in a Swingline Loan
pursuant to this paragraph shall not relieve Borrower of any default in the
payment thereof.



     SECTION 2.18 Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, Borrower may request the issuance of Letters of
Credit for Borrower’s account or the account of any Borrowing Base Guarantor in
a form reasonably acceptable to the Administrative Agent and the Issuing Bank,
at any time and from time to time during the Revolving Availability Period
(provided, that Borrower shall be a co-applicant with respect to each Letter of
Credit issued for the account of or in favor of any Borrowing Base Guarantor).
In the event of any inconsistency between the terms and conditions of this
Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by Borrower to, or entered into by
Borrower with, the Issuing Bank relating to any Letter of Credit, the terms and
conditions of this Agreement shall control. Issuing Bank may consent to
issuing Letters of Credit that have automatic extension or renewal provisions
(“evergreen” Letters of Credit) in its sole discretion, which evergreen Letters
of Credit Issuing Bank may, in its sole discretion, elect not to permit to be
extended or renewed at any time. If, as of the date which is 60 days prior to
the Maturity Date, any evergreen Letters of Credit may for any reason remain
outstanding and partially or wholly undrawn, Borrower shall immediately deposit
in the Cash Collateral Account, in the name of the Collateral Agent and for the
benefit of the Secured Parties, an amount in cash representing 105% of the
aggregate maximum amount then available to be drawn under such Letter of Credit
in accordance with Section 9.04 hereof.



     (b) Request for Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit or the amendment,
renewal or extension of an outstanding Letter of Credit, Borrower shall hand
deliver or telecopy (or transmit by electronic communication, if arrangements
for doing so have been approved by the Issuing Bank) an LC Request to the
Issuing Bank and the Administrative Agent not later than 11:00 a.m. on the
third Business Day preceding the requested date of issuance, amendment, renewal
or extension (or such later date and time as is acceptable to the Issuing
Bank). A request for an initial issuance of
a Letter of Credit shall specify in form and detail satisfactory to the
Issuing Bank: (i) the proposed issuance date of the requested Letter of Credit
(which shall be a Business Day); (ii) the amount thereof; (iii) the expiry date
thereof; (iv) the name and address of the beneficiary thereof; (v) the
documents to be presented by such beneficiary in case of any drawing
thereunder; (vi) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; and (vii) such other matters as
the Issuing Bank may require. A request for an amendment, renewal or extension
of any outstanding Letter of Credit shall specify in form and detail
satisfactory to the Issuing Bank (i) the Letter of Credit to be amended,
renewed or extended; (ii) the proposed date of amendment, renewal or extension
thereof (which shall be a Business Day); (iii) the nature of the proposed
amendment, renewal or extension; and (iv) such other matters as the Issuing
Bank may require. If requested by the Issuing Bank, Borrower also shall submit
a letter of credit application on the Issuing Bank’s standard form in
connection with any request for a Letter of Credit. A Letter of Credit shall
be issued, amended, renewed or extended only if (and upon issuance, amendment,
renewal or extension of each Letter of Credit Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment,
renewal or extension (i) the LC Exposure shall not exceed $50.0 million and
(ii) the total Revolving



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Exposures shall not exceed the lesser of (A) the total
Revolving Commitments minus the Line Reserve and (B) the Borrowing Base then in
effect. Unless the Issuing Bank shall agree otherwise, no Letter of Credit
shall be in an initial amount less than $100,000.



     (c) Expiration Date. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) in the case of a Standby Letter of
Credit, (x) the date which is one year after the date of the issuance of such
Standby Letter of Credit (or, in the case of any renewal or extension thereof,
one year after such renewal or extension) and (y) the Letter of Credit
Expiration Date and (ii) in the case of a Commercial Letter of Credit, (x) the
date that is 180 days after the date of issuance of such Commercial Letter of
Credit (or, in the case of any renewal or extension thereof, 180 days after
such renewal or extension) and (y) the Letter of Credit Expiration Date.



     (d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Revolving Lender, and each Revolving Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such Lender’s Pro Rata Percentage of the aggregate amount available to be
drawn under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Revolving Lender hereby absolutely and unconditionally agrees
to pay to the Administrative Agent, for the account of the Issuing Bank, such
Lender’s Pro Rata Percentage of each LC Disbursement made by the Issuing Bank
and not reimbursed by Borrower on the date due as provided in paragraph (e) of
this Section 2.18, or of any reimbursement payment required to be refunded to
Borrower for any reason. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever.



     (e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, Borrower shall reimburse such LC Disbursement by
paying to the Issuing Bank an amount equal to such LC Disbursement not later
than 2:00 p.m., New York City time, on the date that such LC Disbursement is
made, if Borrower shall have received notice of such LC Disbursement prior to
11:00 a.m., New York City time, on such date, or, if such notice has not been
received by Borrower prior to such time, on such date, then not later than 2:00
p.m., New York City time on (i) the Business Day that Borrower receives such
notice, if such notice is received prior to 11:00 a.m., New York City time, on
the day of receipt, or (ii) the Business Day immediately following the day that
Borrower receives such notice, if such notice is not received prior to such
time on the day of receipt; provided, that Borrower may, subject to the
conditions to borrowing set forth herein, request in accordance with Section
2.03 or 2.17 that such payment be financed with an ABR Revolving Borrowing or
Swingline Loan in an equivalent amount and, to the extent so financed,
Borrower’s obligation to make such payment shall be discharged and replaced by
the resulting ABR Revolving Borrowing or Swingline Loan. If Borrower fails to
make such payment when due, the Issuing Bank shall notify the Administrative
Agent and the Administrative Agent shall notify each Revolving Lender of the
applicable LC Disbursement, the payment then due from Borrower in respect
thereof and such Lender’s Pro Rata Percentage



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thereof. Promptly following
receipt of such notice, each Revolving Lender shall pay to the Administrative
Agent its Pro Rata Percentage of the unreimbursed LC Disbursement in the same
manner as provided in Section 2.02(f) with respect to Loans made by such
Lender, and the Administrative Agent shall promptly pay to the Issuing Bank the
amounts so received by it from the Revolving Lenders. Promptly following
receipt by the Administrative Agent of any payment from Borrower pursuant to
this paragraph, the Administrative Agent shall, to the extent that Revolving
Lenders have made payments pursuant to this paragraph to reimburse the Issuing
Bank, distribute such payment to such Lenders and the Issuing Bank as their
interests may appear. Any payment made by a Revolving Lender pursuant to this
paragraph to reimburse the Issuing Bank for any LC Disbursement (other than the
funding of ABR Revolving Loans or a Swingline Loan as contemplated above) shall
not constitute a Loan and shall not relieve Borrower of its obligation to
reimburse such LC Disbursement.



     (f) Obligations Absolute. The obligation of Borrower to reimburse LC
Disbursements as provided in paragraph (e) of this Section 2.18 shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of
any Letter of Credit or this Agreement, or any term or provision therein, (ii)
any draft or other document presented under a Letter of Credit proving to be
forged, fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect, (iii) payment by the Issuing Bank under a
Letter of Credit against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit, or (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section 2.18, constitute a legal or
equitable discharge of, or provide a right of setoff against, the obligations
of Borrower hereunder. Neither the Administrative Agent, the Lenders nor the
Issuing Bank, nor any of their Affiliates, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to
any Letter of Credit (including any document required to make a drawing
thereunder), any error in interpretation of technical terms or any consequence
arising from causes beyond the control of the Issuing Bank; provided, that the
foregoing shall not be construed to excuse the Issuing Bank from liability to
Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by Borrower to the extent
permitted by applicable law) suffered by Borrower that are caused by the
Issuing Bank’s failure to exercise reasonable care when determining whether
drafts and other documents presented under a Letter of Credit comply with the
terms thereof. The parties hereto expressly agree that, in the absence of
gross negligence or willful misconduct on the part of the Issuing Bank (as
finally determined by a court of competent jurisdiction), the Issuing Bank
shall be deemed to have exercised care in each such determination. In
furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, the
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.



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     (g) Disbursement Procedures. The Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall promptly notify the
Administrative Agent and Borrower by telephone (confirmed by telecopy) of such
demand for payment and whether the Issuing Bank has made or will make an LC
Disbursement thereunder; provided, that any failure to give or delay in giving
such notice shall not relieve Borrower of its obligation to reimburse the
Issuing Bank and the Revolving Lenders with respect to any such LC Disbursement
(other than with respect to the timing of such reimbursement obligation set
forth in Section 2.18(e)).



     (h) Interim Interest. If the Issuing Bank shall make any LC Disbursement,
then, unless Borrower shall reimburse such LC Disbursement in full on the date
such LC Disbursement is made, the unpaid amount thereof shall bear interest,
for each day from and including the date such LC Disbursement is made to but
excluding the date that Borrower reimburses such LC Disbursement, at the rate
per annum then applicable to ABR Revolving Loans; provided, that, if Borrower
fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of
this Section 2.18, then Section 2.06(c) shall apply. Interest accrued pursuant
to this paragraph shall be for the account of the Issuing Bank, except that
interest accrued on and after the date of payment by any Revolving Lender
pursuant to paragraph (e) of this Section 2.18 to reimburse the Issuing Bank
shall be for the account of such Lender to the extent of such payment.



     (i) Resignation or Removal of the Issuing Bank. The Issuing Bank may
resign as Issuing Bank hereunder at any time upon at least 30 days’ prior
notice to the Lenders, the Administrative Agent and Borrower. If the resigning
Issuing Bank is UBS, the successor Issuing Bank shall be Merrill Lynch Bank
USA. The Issuing Bank may be replaced at any time by written agreement among
Borrower, the Administrative Agent, the replaced Issuing Bank and the successor
Issuing Bank. One or more Lenders may be appointed as additional Issuing Banks
in accordance with subsection (k) below. The Administrative Agent shall notify
the Lenders of any such replacement of the Issuing Bank or any such additional
Issuing Bank. At the time any such resignation or replacement shall become
effective, Borrower shall pay all unpaid fees accrued for
the account of the replaced Issuing Bank pursuant to Section 2.05(c).
From and after the effective date of any such resignation or replacement or
addition, as applicable, (i) the successor or additional Issuing Bank shall
have all the rights and obligations of the Issuing Bank under this Agreement
with respect to Letters of Credit to be issued thereafter and (ii) references
herein to the term “Issuing Bank” shall be deemed to refer to such successor or
such addition or to any previous Issuing Bank, or to such successor or such
additional Issuing Bank and all previous Issuing Banks, as the context shall
require. After the resignation or replacement of an Issuing Bank hereunder,
the replaced Issuing Bank shall remain a party hereto and shall continue to
have all the rights and obligations of an Issuing Bank under this Agreement
with respect to Letters of Credit issued by it prior to such resignation or
replacement, but shall not be required to issue additional Letters of Credit.
If at any time there is more than one Issuing Bank hereunder, Borrower may, in
its discretion, select which Issuing Bank is to issue any particular Letter of
Credit.



     (j) Cash Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day that Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Lenders with LC Exposure representing greater
than 50% of the total LC Exposure) demanding the deposit of cash



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collateral
pursuant to this paragraph, Borrower shall deposit in the Cash Collateral
Account, in the name of the Collateral Agent and for the benefit of the Secured
Parties, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided, that the obligation to deposit
such cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any kind,
upon the occurrence of any Event of Default with respect to Borrower described
in clause (g) or (h) of Article VIII. Each such deposit shall be held by the
Collateral Agent in a Cash Collateral Account pursuant to Section 9.04 as
collateral for the payment and performance of the obligations of Borrower under
this Agreement. The Collateral Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account. Other
than any interest earned on the investment of such deposits, which investments
shall be made at the option and sole discretion of the Collateral Agent and at
the risk and expense of Borrower, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall be applied by the Collateral Agent to
reimburse the Issuing Bank for LC Disbursements for which it has not been
reimbursed and, to the extent not so applied, shall be held for the
satisfaction of the reimbursement obligations of Borrower for the LC Exposure
at such time or, if the maturity of the Loans has been accelerated (but subject
to the consent of Revolving Lenders with LC Exposure representing greater than
50% of the total LC Exposure), be applied to satisfy other Obligations of
Borrower under this Agreement. If Borrower is required to provide an amount of
cash collateral hereunder as a result of the occurrence of an Event of Default,
such amount plus any accrued interest or realized profits of such amounts (to
the extent not applied as aforesaid) shall be returned to Borrower within three
Business Days after all Events of Default have been cured or waived. If
Borrower is required to provide an amount of such collateral hereunder pursuant
to Section 2.10(b), such amount plus any accrued interest or realized profits
on account of such amount (to the extent not applied as aforesaid) shall be
returned to Borrower as and to the extent that, after giving effect to such
return, Borrower would remain in compliance with Section 2.10(b) and no Default
or Event of Default shall have occurred and be continuing.



     (k) Additional Issuing Banks. Borrower may, at any time and from time to
time with the consent of the Administrative Agent (which consent shall not be
unreasonably withheld) and such Lender, designate one or more additional
Lenders to act as an issuing bank under the terms of this Agreement. Any
Lender designated as an issuing bank pursuant to this paragraph (k) shall be
deemed (in addition to being a Lender) to be the Issuing Bank with respect to
Letters of Credit issued or to be issued by such Lender, and all references
herein and in the other Loan Documents to the term “Issuing Bank” shall, with
respect to such Letters of Credit, be deemed to refer to such Lender in its
capacity as Issuing Bank, as the context shall require.



     (l) The Issuing Bank shall be under no obligation to issue any Letter of
Credit if:



          (i) any order, judgment or decree of any Governmental Authority or
arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank
from issuing such Letter of Credit, or any law applicable to the Issuing Bank
or any request or directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the Issuing Bank shall prohibit,
or request that the Issuing Bank refrain from, the issuance of letters of
credit generally or such Letter of Credit in particular or shall impose upon
the Issuing Bank with respect to such Letter of Credit any restriction, reserve
or capital requirement (for which the



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Issuing Bank is not otherwise compensated
hereunder) not in effect on the Original Closing Date, or shall impose upon the
Issuing Bank any unreimbursed loss, cost or expense which was not applicable on
the Original Closing Date and which the Issuing Bank in good faith deems
material to it; or



          (ii) the issuance of such Letter of Credit would violate one or more
policies of the Issuing Bank.



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



     SECTION 2.19 Determination of Borrowing Base.



     (a) Eligible Accounts. On any date of determination of the Borrowing
Base, all of the Accounts owned by Borrower and each Borrowing Base Guarantor,
as applicable, and reflected in the most recent Borrowing Base Certificate
delivered by the Borrower to the Collateral Agent and the Administrative Agent
shall be “Eligible Accounts” for the purposes of this Agreement, except any
Account to which any of the exclusionary criteria set forth below applies. In
addition, the Collateral Agent reserves the right, at any time and from time to
time after the Original Closing Date, to adjust any of the criteria set forth
below, to establish new criteria and to adjust the applicable advance rate with
respect to Eligible Accounts, in its reasonable credit judgment, subject to the
approval of the Administrative Agent and the Supermajority Lenders in the case
of adjustments, new criteria or changes in the applicable advance rates which
have the effect of making more credit available. Eligible Accounts shall not
include any of the following Accounts:



          (i) any Account in which the Collateral Agent, on behalf of the Secured
Parties, does not have a first priority and exclusive perfected Lien;



          (ii) any Account that is not owned by a Borrower or a Borrowing Base
Guarantor;



          (iii) any Account due from an Account Debtor that is not domiciled in the
United States or Canada or, if not a natural Person, it is not a Domestic or
Canadian Person;



          (iv) any Account that is payable in any currency other than Dollars or
Canadian Dollars;



          (v) any Account that does not arise from the sale of goods or the
performance of services by such Borrower or Borrowing Base Guarantor in the
ordinary course of its business;



          (vi) any Account that does not comply with all applicable legal
requirements, including, without limitation, all laws, rules, regulations and
orders of any Governmental Authority (including any Account due from an Account
Debtor located in the States of New Jersey, Minnesota, Georgia or any other
State, unless Borrower and the Borrowing Base



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Guarantor, as applicable (at the
time the Account was created and at all times thereafter) (i) had filed and has
maintained effective a current notice of business activities report with the
appropriate office or agency of the States of New Jersey, Minnesota, Georgia,
or any other State, as applicable, or (ii) was and has continued to be exempt
from filing such report and has provided the Lenders with satisfactory evidence
thereof);



          (vii) any Account (a) upon which the right to receive payment of either
Borrower or any Borrowing Base Guarantor, as applicable, is not absolute or is
contingent upon the fulfillment of any condition whatsoever unless such
condition is satisfied or (b) as to which either Borrower or any Borrowing Base
Guarantor, as applicable, is not able to bring suit or otherwise enforce its
remedies against the Account Debtor through judicial or administrative process
or (c) that represents a progress billing consisting of an invoice for goods
sold or used or services rendered pursuant to a contract under which the
Account Debtor’s obligation to pay that invoice is subject to the Borrower’s or
Borrowing Base Guarantor’, as applicable, completion of further performance
under such contract or is subject to the equitable lien of a surety bond
issuer;



          (viii) to the extent that any defense, counterclaim, setoff or dispute is
asserted as to such Account, it being understood that the remaining balance of
the Account shall be eligible;



          (ix) any Account that is reissued in respect of partial payment, including
without limitation debit memos and charge backs;



          (x) any Account that is not a true and correct statement of bona fide
indebtedness incurred in the amount of the Account for merchandise sold to or
services rendered and accepted by the applicable Account Debtor;



          (xi) any Account with respect to which an invoice or other electronic
transmission constituting a request for payment, reasonably acceptable to the
Collateral Agent in
form and substance, has not been sent on a timely basis to the applicable
Account Debtor according to the normal invoicing and timing procedures of
Borrower or Borrowing Base Guarantor, as applicable;



          (xii) any Account that arises from a sale to any director, officer, other
employee or Affiliate of Borrower or any Borrowing Base Guarantor (including,
without limitation, NextGen), or to any entity that has any common officer or
director with any Borrower or Borrowing Base Guarantor;



          (xiii) to the extent the Borrower or any Subsidiary is liable for goods
sold or services rendered by the applicable Account Debtor to the Borrower or
any Subsidiary but only to the extent of the potential offset;



          (xiv) any Account that arises with respect to goods that are delivered on
a bill-and-hold, cash-on-delivery basis or placed on consignment (other than
Eligible Consigned Inventory), guaranteed sale or other terms by reason of
which the payment by the Account Debtor is or may be conditional or with
respect to which the applicable Account Debtor is treated by Borrower or a
Borrowing Base Guarantor as a cash-in-advance terms customer (regardless of
whether shipment was in fact withheld subject to receiving payment);



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          (xv) any Account that is in default; provided, that, without limiting the
generality of the foregoing, an Account shall be deemed in default upon the
occurrence of any of the following:




     (a) any Account not paid within 90 days following its original
invoice date;




     (b) any Account which is due according to its original terms
of sale more than 90 days after its original invoice date, except
as may be approved in advance and in writing by Collateral Agent in
its discretion, with such limitations as the Collateral Agent may
deem appropriate; it being understood that (I) as of the Closing
Date, an AutoZone Account, a Robert Bosch Account, or an Account of
Graybar Electric Company, Inc. or State Electric Supply Co., Inc.
which is due according to its original terms of sale more than 90
days after its original invoice date shall not be deemed in default
by reason of this clause (b) or by reason of clause (a) above, as
long as such Account is not more than 30 days past due according to
its original terms of sale and does not remain unpaid for more than
150 days after its original invoice date; (II) to the extent
AutoZone, Inc. or Robert Bosch Corporation is an Investment Grade
Account Debtor, an AutoZone Account or Robert Bosch Account which
is due according to its original terms of sale more than 90 days
after its original invoice date shall not be deemed in default by
reason of this clause (b) or by reason of clause (a) above, as long
as such Account is not more than 30 days past due according to its
original terms of sale and does not remain unpaid for more than 180
days after its original invoice date, and (III) (A) if the
aggregate Available Amounts of all AutoZone Accounts that are
Eligible Accounts shall at any time exceed 25% of the aggregate
Available Amounts of all Eligible Accounts which are included in
the Borrowing
Base, then the Collateral Agent may establish a Reserve in the
exercise of its reasonable credit judgment in an amount equal to
the excess of the aggregate Available Amounts of such AutoZone
Accounts over 25% of the aggregate Available Amounts of all
Eligible Accounts, and (B) if the aggregate Available Amounts of
all Robert Bosch Accounts that are Eligible Accounts shall at any
time exceed 7% of the aggregate Available Amounts of all Eligible
Accounts which are included in the Borrowing Base, then the
Collateral Agent may establish a Reserve in the exercise of its
reasonable credit judgment in an amount equal to the excess of the
aggregate Available Amounts of such Robert Bosch Accounts over 7%
of the aggregate Available Amounts of all Eligible Accounts;




     (c) the Account Debtor obligated upon such Account suspends
business, makes a general assignment for the benefit of creditors
or fails to pay its debts generally as they come due; or




     (d) a petition is filed by or against any Account Debtor
obligated upon such Account under any bankruptcy law or any other
federal, state, provincial or foreign (including any provincial)
receivership, insolvency relief or other law or laws for the relief
of debtors;



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          (xvi) any Account that is the obligation of an Account Debtor (other than
an individual) if 50% or more of the Dollar amount of all Accounts owing by
that Account Debtor are ineligible under the other criteria set forth in this
Section 2.19(a);



          (xvii) any Account as to which any of the representations or warranties in
the Loan Documents are untrue;



          (xviii) to the extent such Account is evidenced by a judgment, Instrument
or Chattel Paper;



          (xix) to the extent such Account exceeds any credit limit established by
the Collateral Agent, in its reasonable credit judgment, following prior notice
of such limit by the Collateral Agent to the Borrower;



          (xx) that portion of any Account (a) in respect of which there has been,
or should have been, established by the Borrower or any Borrowing Base
Guarantor a contra account, whether in respect of contractual allowances with
respect to such Account, audit adjustment, anticipated discounts or otherwise,
or in respect of which Borrower or any Borrowing Base Guarantor accrues
liability for deposits made by Account Debtors in respect of the reels used to
store cable, or (b) which is due from an Account Debtor to whom the Borrower or
any Borrowing Base Guarantor owes a trade payable, but only to the extent of
such trade payable or (c) which the Borrower or any Borrowing Base Guarantor
knows is subject to the exercise by an Account Debtor of any right of
recession, set-off, recoupment, counterclaim or defense or (d) of any Account
Debtor that is taking part in a volume rebate program and is meeting the
requisite volume criteria; or



          (xxi) any Account on which the Account Debtor is a Governmental Authority,
unless Borrower or any Borrowing Base Guarantor, as applicable, has assigned
its rights to
payment of such Account to the Administrative Agent pursuant to, in the
case of a federal Governmental Authority, the Assignment of Claims Act of 1940,
as amended, or Financial Administration Act (Canada), as amended, and pursuant
to applicable law, if any, in the case of any other Governmental Authority, and
such assignment has been accepted and acknowledged by the appropriate
government officers.



     (b) Eligible Inventory. For purposes of this Agreement, Eligible
Inventory shall exclude any Inventory to which any of the exclusionary criteria
set forth below applies. The Collateral Agent shall have the right to
establish, modify or eliminate Reserves against Eligible Inventory from time to
time in its reasonable credit judgment. In addition, the Collateral Agent
reserves the right, at any time and from time to time after the Original
Closing Date, to adjust any of the criteria set forth below, to establish new
criteria and to adjust the applicable advance rate with respect to Eligible
Inventory, in its reasonable credit judgment, subject to the approval of the
Administrative Agent and the Supermajority Lenders in the case of adjustments,
new criteria, changes in the applicable advance rate or the elimination of
Reserves which have the effect of making more credit available. Eligible
Inventory shall not include any Inventory of Borrower or any Borrowing Base
Guarantor that:



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          (i) the Collateral Agent, on behalf of Secured Parties, does not have a
first priority and exclusive perfected Lien on such Inventory;



          (ii) is not located on premises in United States or Canada;



          (iii) (A) is located on premises leased by Borrower or a Borrowing Base
Guarantor, unless (x) at such location the aggregate value of Inventory exceeds
$250,000, and (y) either (1) a reasonably satisfactory Landlord Lien Waiver and
Access Agreement has been delivered to the Collateral Agent, or (2) Reserves
reasonably satisfactory to the Collateral Agent have been established with
respect thereto or (B) is stored with a bailee or warehouseman where the
aggregate value of Inventory exceeds $250,000 unless either (x) a reasonably
satisfactory, acknowledged bailee waiver letter has been received by the
Collateral Agent or (y) Reserves reasonably satisfactory to the Collateral
Agent have been established with respect thereto, or (C) is located at an owned
location subject to a mortgage in favor of a lender other than the Collateral
Agent where the aggregate value of Inventory exceeds $250,000 unless either (x)
a reasonably satisfactory mortgagee waiver has been delivered to the Collateral
Agent or (y) Reserves reasonably satisfactory to the Collateral Agent have been
established with respect thereto;



          (iv) is placed on consignment (other than Eligible Consigned Inventory);



          (v) is covered by a negotiable document of title, unless such document has
been delivered to the Collateral Agent with all necessary endorsements, free
and clear of all Liens except those in favor of the Collateral Agent and the
Lenders and landlords, carriers, bailees and warehousemen if clause (iii) above
has been complied with;



          (vi) is to be returned to suppliers;



          (vii) is obsolete, unsalable, shopworn, seconds, damaged or unfit for sale;



          (viii) is slow moving (in excess of 1-year supply);



          (ix) consists of display items, samples or packing or shipping materials,
manufacturing supplies or replacement parts (it being understood that Eligible
Inventory shall not exclude work-in-process Inventory if it is not excluded in
accordance with other criteria set forth herein, unless otherwise determined by
the Collateral Agent in its reasonable credit judgment);



          (x) is not of a type held for sale in the ordinary course of Borrower’s or
any Borrowing Base Guarantor’s, as applicable, business;



          (xi) breaches any of the representations or warranties pertaining to
Inventory set forth in the Loan Documents;



          (xii) consists of Hazardous Material or goods that can be transported or
sold only with licenses that are not readily available;



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          (xiii) is not covered by casualty insurance maintained as required by
Section 5.04;



          (xiv) consists of custom made Inventory which is not saleable to any other
customer or in ordinary course;



          (xv) is in transit; or



          (xvi) is subject to any licensing arrangement the effect of which would be
to limit the ability of Collateral Agent, or any Person selling the Inventory
on behalf of Collateral Agent, to sell such Inventory in enforcement of the
Collateral Agent’s Liens, without further consent or payment to the licensor or
other.



     (c) Eligible Equipment and Eligible Real Property. The Collateral Agent
shall have the right to establish, modify or eliminate Reserves against
Eligible Equipment and Eligible Real Property from time to time in its
reasonable credit judgment. In addition, the Collateral Agent reserves the
right, at any time and from time to time after the Original Closing Date, to
adjust any of the criteria set forth in the definitions of the terms “Eligible
Equipment” and “Eligible Real Property”, to establish new criteria and to
adjust the applicable advance rate with respect to Eligible Equipment or
Eligible Real Property, in its reasonable credit judgment, subject to the
approval of the Administrative Agent and the Supermajority Lenders in the case
of adjustments, new criteria, changes in the applicable advance rate or the
elimination of Reserves which have the effect of making more credit available
and in the case of any change in the FALV Amortization Factor. Any Equipment
affixed to the Mortgaged Real Property listed on Schedule 1.01(e), if otherwise
eligible hereunder, shall be deemed Eligible Equipment rather than Eligible
Real Property.



ARTICLE III.




REPRESENTATIONS AND WARRANTIES




     Each Loan Party represents and warrants to the Administrative Agent, the
Collateral Agent, the Issuing Bank and each of the Lenders (with references to
the Companies being references thereto after giving effect to the Transactions
unless otherwise expressly stated) that:



     SECTION 3.01 Organization; Powers. Each Company (a) is duly organized and
validly existing under the laws of the jurisdiction of its organization, (b)
has all requisite power and authority to carry on its business as now conducted
and to own and lease its Property and (c) is qualified and in good standing (to
the extent such concept is applicable in the applicable jurisdiction) to do
business in every jurisdiction where such qualification is required, except in
such jurisdictions where the failure to so qualify or be in good standing,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.



     SECTION 3.02 Authorization; Enforceability. The Transactions to be
entered into by each Loan Party are within such Loan Party’s powers and have
been duly authorized by all necessary action. This Agreement has been duly
executed and delivered by each Loan Party and constitutes, and each other Loan
Document to which any Loan Party is to be a party, when executed and delivered
by such Loan Party, will constitute, a legal, valid and binding obligation



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of
such Loan Party, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors’ rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.



     SECTION 3.03 Governmental Approvals; No Conflicts. Except as set forth on
Schedule 3.03, the Transactions (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental
Authority, except (i) such as have been obtained or made and are in full force
and effect, (ii) filings necessary to perfect Liens created under the Loan
Documents and (iii) consents, approvals, registrations, filings or actions the
failure of which to obtain or perform could not reasonably be expected to
result in a Material Adverse Effect, (b) will not violate the charter, by-laws
or other organizational documents of any Company or any order of any
Governmental Authority, (c) will not violate, result in a default or require
any consent or approval under any applicable law or regulation, indenture,
agreement or other instrument binding upon any Company or its assets, or give
rise to a right thereunder to require any payment to be made by any Company,
except for violations, defaults or the creation of such rights that could not
reasonably be expected to result in a Material Adverse Effect, and (d) will not
result in the creation or imposition of any Lien on any Property of any
Company, except Liens created under the Loan Documents and Permitted Liens.



     SECTION 3.04 Financial Statements. (a) Borrower has heretofore furnished to the Lenders the consolidated
balance sheets and related statements of income, stockholders’ equity and cash
flows of Holdings and its consolidated Subsidiaries (i) as of and for the
fiscal years ended December 31, 2000, 2001, 2002 and 2003, audited by and
accompanied by the opinion of Deloitte & Touche LLP, independent public
accountants, and (y) as of and for the six-month period ended June 30, 2004 and
for the comparable period of the preceding fiscal year, in each case, certified
by the Chief Financial Officer of Holdings. Such financial statements have
been prepared in accordance with GAAP consistently applied and present fairly
and accurately the financial condition and results of operations and cash flows
of Holdings and its consolidated Subsidiaries as of such dates and for such
periods. Except as set forth in such financial statements or schedules hereto,
as of the Closing Date, there are no liabilities of any Company of any kind,
whether accrued, contingent, absolute, determined, determinable or otherwise,
which if unpaid could reasonably be expected to result in a Material Adverse
Effect, and there is no existing condition, situation or set of circumstances
which could reasonably be expected to result in such a liability, other than
liabilities under the Loan Documents and the Qualified Senior Note Documents.



     (b) Prior to the Original Closing Date, Borrower has delivered to the
Lenders Holdings’ (i) Confidential Information Memoranda, (ii) unaudited
consolidated and consolidating balance sheets and statements of income and cash
flows as of and for the nine-month period ended September 30, 2003 and for the
comparable period of the preceding fiscal year and (iii) consolidated
projections for a 5-year period after the Original Closing Date. Such
projections and financial statements have been prepared in good faith by the
Loan Parties, based on the assumptions stated therein (which assumptions are
believed by the Loan Parties as of the Original Closing Date and on the Closing
Date to be reasonable), are based on the best information available to the Loan
Parties as of the date of delivery thereof, accurately reflect all adjustments
required to be made to give effect to the Transactions. The projections are
based



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upon the same accounting principles as those used in the preparation of
the financial statements described above and the estimates and assumptions
stated therein, all of which the Loan Parties believes to be reasonable and
fair in light of current conditions and current facts known to the Loan Parties
and, as of the Closing Date, reflect the Loan Parties’ good faith and
reasonable estimates of the future financial performance of the Loan Parties
for the period set forth therein. The projections are not a guaranty of future
performance, and actual results may differ from the projections.



     (c) Since December 31, 2002, there has been no event, change or occurrence
that, individually or in the aggregate, has had or could reasonably be expected
to result in a Material Adverse Effect.



     SECTION 3.05 Properties. (a) Each Company has good title to, or valid
leasehold interests in, all its Property material to its business, except for
minor irregularities or deficiencies in title that, individually or in the
aggregate, do not interfere with its ability to conduct its business as
currently conducted or to utilize such Property for its intended purpose.
Title to all such Property held by such Company is free and clear of all Liens
except for Permitted Liens. The Property of the
Companies, taken as a whole, (i) is in good operating order, condition and
repair (ordinary wear and tear excepted) (except to the extent that the failure
to be in such condition could not reasonably be expected to result in a
Material Adverse Effect) and (ii) constitutes all the Property which is
required for the business and operations of the Companies as presently
conducted.



     (b) Real Property. As of the Closing Date,



          (i) Schedule 3.05(b) contains a true and complete list of each interest in
Real Property owned by any Company and describes the type of interest therein
held by such Company. Schedule 3.05(b) contains a true and complete list of
each Real Property leased, subleased or otherwise occupied or utilized by any
Company, as lessee, sublessee, franchisee or licensee, and describes the type
of interest therein held by such Company and whether such lease, sublease or
other instrument requires the consent of the landlord thereunder or other
parties thereto to the Transactions.



          (ii) The Real Property and the current use thereof complies in all
material respects with (i) all applicable Requirements of Law (including
building and zoning ordinances and codes), and the Borrower or the relevant
Company is not an illegal user of such Real Property, and (ii) all insurance
requirements of this Agreement, in each case, except where noncompliance could
not reasonably be expected to have a Material Adverse Effect.



          (iii) No Casualty Event has been commenced or, to the best knowledge of
Borrower and the Companies, is contemplated with respect to all or any portion
of any material Real Property or for any materially adverse relocation of
roadways providing access to such Real Property other than a Casualty Event
relating to Real Property that has been restored, replaced or rebuilt.



          (iv) There are no current, pending or, to the best knowledge of Borrower
and the Companies, proposed special or other assessments for public
improvements or otherwise



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affecting any Mortgaged Real Properties, nor are
there any contemplated improvements to such Mortgaged Real Properties that may
result in such special or other assessments, in each case, other than such
assessments that will be paid prior to delinquency.



          (v) Neither the Borrower nor the Companies have suffered, permitted or
initiated the joint assessment of any Mortgaged Real Property with any other
real property constituting a separate tax lot that would interfere with the
legal foreclosure of such Mortgaged Real Property independent of any property
that is not a Mortgaged Real Property. All owned Real Property is comprised of
one or more parcels, each of which or such parcels together constitutes a
separate tax lot and none of which constitutes a portion of any other tax lot.



          (vi) Each of the Borrower and the Companies has obtained all material
permits (including assembly permits), licenses, variances and certificates
required by Requirements of Law to be obtained by such Person and necessary to
the use and operation of the Mortgaged Real Properties for the purposes for
which they are currently used. Each of the Borrower and the Companies has
obtained all permits (including assembly permits), licenses, variances and
certificates required by Requirements of Law to be obtained by such Person and
necessary to the
use and operation of Real Property other than Mortgaged Real Properties
except to the extent that the failure to obtain such permits, licenses,
variances and certificates could not, in the aggregate, reasonably be expected
to have a Material Adverse Effect. The use being made of all Real Property is
in material conformity with the certificate of occupancy and/or such other
permits, licenses, variances and certificates for such Real Property and any
other reciprocal easement agreements, restrictions, covenants or conditions
affecting such Real Property.



          (vii) Except for maintenance and repairs in the ordinary course of
business or as set forth on Schedule 3.05(b), to the best knowledge of Borrower
and the Companies, all Real Property owned by Loan Parties is free from
structural defects and all building systems contained therein are in good
working order and condition, ordinary wear and tear excepted, suitable for the
purposes for which they are currently being used.



          (viii) No Person other than the Companies has any possessory interest in
any Real Property or right to occupy any Real Property except for leases,
subleases and concessions (i) in the ordinary course of business and (ii) on
terms no less favorable to the Companies than terms that were available to
unaffiliated parties in the market generally at the time entered into. There
are no outstanding options to purchase or rights of first refusal or
restrictions on transferability affecting any owned Real Property.



          (ix) Except as could not reasonably be expected to have a material adverse
effect on the affected Property, (i) all Real Property has adequate rights of
access to public ways to permit the Real Property to be used for its intended
purpose and is served by operating and adequate water, electric, telephone,
sewer, sanitary sewer and storm drain facilities, (ii) all public utilities
necessary to the continued use and enjoyment of the Real Property and the
Companies have the legal right to the continued use thereof, (iii) all roads
necessary for the full utilization of the Real Property for its current purpose
have been completed and dedicated to public use and accepted by all
Governmental Authorities or are the subject of access easements for the benefit
of such Real Property and (iv) all reciprocal easement agreements affecting any
Real Property are in full force and effect and no Company is aware of any
defaults thereunder. Except for



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public streets and sidewalks and other
non-material parcels in respect of which any further discontinuance of use or
occupying would not materially interfere with the value or utility of adjacent
or nearby Real Property, no Company uses or occupies any real property other
than such Real Property in connection with the use and operation of any Real
Property.



          (x) No building or structure constituting Real Property or any
appurtenance thereto or equipment thereon, or the use, operation or maintenance
thereof, violates any restrictive covenant or encroaches on any easement or on
any property owned by others, which violation or encroachment materially
interferes with the use or could materially adversely affect the value of such
building, structure or appurtenance or which encroachment is necessary for the
operation of the business at any Real Property. All buildings, structures,
appurtenances and equipment necessary for the use of each Mortgaged Real
Property for the purpose for which it is currently being used are located on
the real property encumbered by such Mortgage.



          (xi) Each parcel of Real Property, including each lease, has adequate
available parking to meet legal and operating requirements (after taking into
account reciprocal easement agreements and other easements on adjoining or
nearby land).



          (xii) No portion of the Real Property owned by a Loan Party has suffered
any material damage by fire or other material casualty loss that has not
heretofore been substantially repaired and restored to its original condition.
No portion of the Real Property owned by a Loan Party (other than the Real
Property located in Willimantic, Connecticut for which Borrower has flood
insurance) is located in a special flood hazard area as designated by any
federal governmental authorities.



     (c) Each Company owns, or is licensed to use, all patents, patent
applications, trademarks, trade names, servicemarks, copyrights, technology,
trade secrets, proprietary information, domain names, know-how and processes
necessary for the conduct of its business as currently conducted (the
“Intellectual Property”), except for those the failure to own or license which,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect. No claim has been asserted and is pending by any
Person challenging or questioning the use of any such Intellectual Property or
the validity or effectiveness of any such Intellectual Property, nor does any
Company know of any valid basis for any such claim (except for such claim and
infringement that could not reasonably be expected to result in a Material
Adverse Effect). The use of such Intellectual Property by each Company does
not infringe the rights of any Person, except for such claims and infringements
that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.



     (d) (i) No Company has received any notice of, nor has any knowledge of,
the occurrence or pendency or contemplation of any Casualty Event affecting all
or any portion of the Property and (ii) no Mortgage encumbers improved Real
Property that is located in an area that has been identified by the Secretary
of Housing and Urban Development as an area having special flood hazards and
with respect to which flood insurance has been made available under the
National Flood Insurance Act of 1968.



     SECTION 3.06 Equity Interests and Subsidiaries. (a) Schedule 3.06(a)
sets forth a list of (i) all the Subsidiaries and their jurisdiction of
organization as of the Closing Date and (ii)



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the number of shares of each class
of its Equity Interests authorized, and the number outstanding (and the record
holder of such Equity Interests), on the Closing Date and the number of shares
covered by all outstanding options, warrants, rights of conversion or purchase
and similar rights at the Closing Date. All Equity Interests of each Company
are duly and validly issued and are fully paid and non-assessable and are owned
by Holdings or Borrower, directly or indirectly through Wholly Owned
Subsidiaries and all Equity Interests of Borrower are owned directly by
Intermediate Holdings and all Equity Interests of Intermediate Holdings are
owned directly by Holdings. Each Loan Party is the record and beneficial owner
of, and has good and marketable title to, the Equity Interests pledged by it
under the Security Agreements and Foreign Pledge Agreements, free of any and
all Liens, rights or claims of other Persons, except the security interest
created by the Security Agreements, and there are no outstanding warrants,
options or other rights to purchase, or shareholder, voting trust or similar
agreements outstanding with respect to, or Property that is convertible into,
or that requires the issuance or sale of, any such Equity Interests.



     (b) No consent of any Person including any other general or limited
partner, any other member of a limited liability company, any other shareholder
or any other trust beneficiary is necessary or desirable in connection with the
creation, perfection or first priority status of the security interest of the
Collateral Agent in any Equity Interests pledged to the Collateral Agent for
the benefit of the Secured Parties under the Security Documents or the exercise
by the Collateral Agent of the voting or other rights provided for in the
Security Documents or the exercise of remedies in respect thereof.



     (c) An accurate organization chart, showing the ownership structure of
Holdings, Borrower and each Subsidiary on the Closing Date, and after giving
effect to the Transaction, is set forth on Schedule 3.06(c).



     SECTION 3.07 Litigation; Compliance with Laws. (a) As of the Closing
Date, there are no actions, suits or proceedings at law or in equity by or
before any Governmental Authority now pending or, to the knowledge of any
Company, threatened against or affecting any Company or any business, Property
or rights of any such Person (i) that involve any Loan Document or the
Transactions or (ii) as to which there is a reasonable possibility of an
adverse determination and that, if adversely determined, could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect.



     (b) Except for matters covered by Section 3.17, no Company or any of its
Property is in violation of, nor will the continued operation of their Property
as currently conducted violate, any Requirements of Law (including any zoning
or building ordinance, code or approval or any building permits) or any
restrictions of record or agreements affecting the Real Property or is in
default with respect to any judgment, writ, injunction, decree or order of any
Governmental Authority, where such violation or default could reasonably be
expected to result in a Material Adverse Effect.



     SECTION 3.08 Agreements. (a) No Company is a party to any agreement or
instrument or subject to any corporate or other constitutional restriction that
has resulted or could reasonably be expected to result in a Material Adverse
Effect.



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     (b) No Company is in default in any manner under any provision of any
indenture or other agreement or instrument evidencing Indebtedness, or any
other agreement or instrument to which it is a party or by which it or any of
its Property are or may be bound, where such default could reasonably be
expected to result in a Material Adverse Effect.



     (c) Schedule 3.08(c) accurately and completely lists all material
agreements (other than leases of Real Property set forth on Schedule 3.05(b)
and other than the Intercompany Agreements) to which any Company is a party
which are in effect on the date hereof in connection with the operation of the
business conducted thereby and Borrower has delivered to
the Administrative Agent and the Collateral Agent complete and correct
copies of all such material agreements, including any amendments, supplements
or modifications with respect thereto.



     SECTION 3.09 Federal Reserve Regulations. (a) No Company is engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose of buying or carrying Margin Stock.



     (b) No part of the proceeds of any Loan or any Letter of Credit will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose that entails a violation of, or that is
inconsistent with, the provisions of the regulations of the Board, including
Regulation T, U or X. The pledge of the Security Agreement Collateral pursuant
to the Security Agreements and Foreign Pledge Agreements does not violate such
regulations.



     SECTION 3.10 Investment Company Act; Public Utility Holding Company Act.
No Company is (a) an “investment company” or a company “controlled” by an
“investment company,” as defined in, or subject to regulation under, the
Investment Company Act of 1940, as amended, or (b) a “holding company,” an
“affiliate” of a “holding company” or a “subsidiary company” of a “holding
company,” as defined in, or subject to regulation under, the Public Utility
Holding Company Act of 1935, as amended.



     SECTION 3.11 Use of Proceeds. Borrower will use the proceeds of the
Revolving Loans on and after the Closing Date to refinance the Existing ABR
Borrowings, finance any Permitted Loan Funded Acquisition and for general
corporate purposes.



     SECTION 3.12 Taxes. Each Company has (a) timely filed or caused to be
timely filed all federal Tax Returns and all material, state, local and foreign
Tax Returns or materials required to have been filed by it and all such Tax
Returns are true and correct in all material respects and has (b) duly and
timely paid or caused to be duly and timely paid all Taxes (whether or not
shown on any Tax Return) due and payable by it and all assessments received by
it, except Taxes (i) that are being contested in good faith by appropriate
proceedings and for which such Company shall have set aside on its books
adequate reserves in accordance with GAAP or (ii) which could not, individually
or in the aggregate, have a Material Adverse Effect; provided, that any such
contest of Taxes with respect to Collateral shall also satisfy the Contested
Collateral Lien Conditions. Each Company has made adequate provision in
accordance with GAAP for all Taxes not yet due and payable. Each Company is
unaware of any proposed or pending tax assessments, deficiencies or audits that
could be reasonably expected to, individually or in the aggregate, result in a
Material Adverse Effect.



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     SECTION 3.13 No Material Misstatements. None of any information, report, financial statement, exhibit or
schedule furnished by or on behalf of any Company to the Administrative Agent
or any Lender in connection with the negotiation of any Loan Document or
included therein or delivered pursuant thereto (including the Confidential
Information Memoranda) contained, contains or will contain any material
misstatement of fact or omission, omits or will omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were, are or will be made, not misleading as of the date such
information is dated or certified; provided, that to the extent any such
information, report, financial statement, exhibit or schedule was based upon or
constitutes a forecast or projection, each Loan Party represents only that it
acted in good faith and utilized reasonable assumptions and due care in the
preparation of such information, report, financial statement, exhibit or
schedule.



     SECTION 3.14 Labor Matters. As of the date hereof and the Closing Date,
there are no strikes, lockouts or slowdowns against any Company pending or, to
the knowledge of any Company, threatened. The hours worked by and payments
made to employees of any Company have not been in violation of the Fair Labor
Standards Act or any other applicable federal, state, local or foreign law
dealing with such matters in any manner which could reasonably be expected to
result in a Material Adverse Effect. All payments due from any Company, or for
which any claim may be made against any Company, on account of wages and
employee health and welfare insurance and other benefits, have been paid or
accrued as a liability on the books of such Company except where the failure to
do so could not reasonably be expected to result in a Material Adverse Effect.
The consummation of the Transactions will not give rise to any right of
termination or right of renegotiation on the part of any union under any
collective bargaining agreement to which any Company is bound.



     SECTION 3.15 Solvency. Immediately after the consummation of the
Transactions to occur on the Closing Date and immediately following the making
of each Loan and after giving effect to the application of the proceeds of each
Loan taking into account rights of contribution against or reimbursement from
other Loan Parties, (a) the fair value of the assets of each Loan Party
(individually and on a consolidated basis with its Subsidiaries) will exceed
its debts and liabilities, subordinated, contingent or otherwise; (b) the
present fair saleable value of the Property of each Loan Party (individually
and on a consolidated basis with its Subsidiaries) will be greater than the
amount that will be required to pay the probable liability of its debts and
other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (c) each Loan Party
(individually and on a consolidated basis with its Subsidiaries) will be able
to pay its debts and liabilities, subordinated, contingent or otherwise, as
such debts and liabilities become absolute and matured; and (d) each Loan Party
(individually and on a consolidated basis with its Subsidiaries) will not have
unreasonably small capital with which to conduct its business in which it is
engaged as such business is now conducted and is proposed to be conducted
following the Closing Date and (e) with respect to any Canadian Loan Party,
that on such date (i) the property of such Person is sufficient, if disposed of
at a fairly conducted sale under legal process, to enable payment of all its
obligations, due and accruing due, (ii) the property of such Person is, at a
fair valuation, greater than the total amount of liabilities, including
contingent
liabilities, of such Person, (iii) such Person has not ceased paying its
current obligations in the ordinary course of business as they generally become
due, and (iv)) such Person is not for any reason unable to meet its obligations
as they generally become due. In



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determining the foregoing, the amount of
contingent liabilities (such as litigation, guaranties and pension plan
liabilities) at any time shall be computed as the amount that, in light of all
the facts and circumstances existing at the time, represents the amount that
can be reasonably be expected to become an actual or matured liability.



     SECTION 3.16 Employee Benefit and Pension Plans. (a) Each Domestic
Company and its ERISA Affiliates is in compliance in all material respects with
the applicable provisions of ERISA and the Code and the regulations and
published interpretations thereunder. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such
ERISA Events, could reasonably be expected to result in material liability of
any Domestic Company or any of its ERISA Affiliates or the imposition of a Lien
on any of the assets of a Domestic Company. As of the date of the most recent
financial statements, there is no accumulated funding deficiency (as defined by
Section 412(a) of the Code). Each Company and its ERISA Affiliates are in
compliance with the terms of the July 1999 agreement (and any amendments or
related letters) between Holdings and the PBGC that addresses the Plans. Using
actuarial assumptions and computation methods consistent with subpart 1 of
subtitle E of Title IV of ERISA, the aggregate liabilities of each Company or
its ERISA Affiliates to all Multiemployer Plans in the event of a complete
withdrawal therefrom, as of the close of the most recent fiscal year of each
such Multiemployer Plan, could not reasonably be expected to result in a
Material Adverse Effect.



     (b) Except as set forth in Schedule 3.16, the Canadian Pension Plans are
duly registered under the ITA and all other applicable laws which require
registration and no event has occurred which is reasonably likely to cause the
loss of such registered status. All material obligations of any Canadian Loan
Party (including fiduciary, funding, investment and administration obligations)
required to be performed in connection with the Canadian Pension Plans and the
funding agreements therefor have been performed in a timely fashion. There
have been no improper withdrawals or applications of the assets of the Canadian
Pension Plans or the Canadian Benefit Plans. There are no outstanding disputes
concerning the assets of the Canadian Pension Plans or the Canadian Benefit
Plans. Each of the Canadian Pension Plans is fully funded in accordance with
the contribution schedules determined by the Plan actuary (using actuarial
methods and assumptions which are consistent with the valuations last filed
with the applicable governmental authorities and which are consistent with
generally accepted actuarial principles). General Cable Canada does not employ
any employees outside of Canada.



     (c) Each Foreign Plan has been maintained in substantial compliance with
its terms and with the requirements of any and all applicable laws, statutes,
rules, regulations and orders and has been maintained, where required, in good
standing with applicable regulatory authorities. No Foreign Company has
incurred any material obligation in connection with the termination of or
withdrawal from any Foreign Plan. Each Foreign Plan is funded in accordance
with the contribution schedule determined by the Plan actuary (using actuarial
methods and assumptions
which are consistent with the valuations last filed with the applicable
Governmental Authority and which are consistent with generally accepted
actuarial principles). For each Foreign Plan which is not funded, the
obligations of such Foreign Plan are properly accrued.



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     SECTION 3.17 Environmental Matters. (a) Except as set forth in Schedule
3.17 or except as, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect:



          (i) The Companies and their businesses, operations and Real Property are
and in the last six years have been in compliance with, and the Companies have
no liability under, Environmental Law;



          (ii) The Companies have obtained all Environmental Permits required for
the conduct of their businesses and operations, and the ownership, operation
and use of their assets, under Environmental Law, all such Environmental
Permits are valid and in good standing and, under the currently effective
business plan of the Companies, no expenditures or operational adjustments will
be required in order to renew or modify such Environmental Permits during the
next five years;



          (iii) There has been no Release or threatened Release of Hazardous
Material on, at, under or from any real Property or facility presently or
formerly owned, leased or operated by the Companies or their predecessors in
interest that could result in liability of the Companies under Environmental
Law;



          (iv) There is no Environmental Claim pending or, to the knowledge of the
Companies, threatened against the Companies, or relating to the real Property
currently or formerly owned, leased or operated by the Companies or relating to
the operations of the Companies, and there are no actions, activities,
circumstances, conditions, events or incidents that could form the basis of
such an Environmental Claim; and



          (v) No Person with an indemnity or contribution obligation to the
Companies relating to compliance with or liability under Environmental Law is
in default with respect to such obligation.



     (b) Except as set forth in Schedule 3.17 or except as, individually or in
the aggregate could not reasonably be expected to result in a Material Adverse
Effect:



          (i) No Company is obligated to perform any action or otherwise incur any
expense under Environmental Law pursuant to any order, decree, judgment or
agreement by which it is bound or has assumed by contract or agreement, and no
Company is conducting or financing any Response pursuant to any Environmental
Law with respect to any Real Property or any other location;



          (ii) No Real Property or facility owned, operated or leased by the
Companies and, to the knowledge of the Companies, no real Property or facility
formerly owned, operated or
leased by the Companies or any of their predecessors in interest is (x)
listed or proposed for listing on the National Priorities List promulgated
pursuant to CERCLA or (y) listed on the Comprehensive Environmental Response,
Compensation and Liability Information System promulgated pursuant to CERCLA or
(z) included on any similar list maintained by any Governmental Authority
including, without limitation, any such list relating to petroleum;



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          (iii) No Lien has been recorded or, to the knowledge of any Company,
threatened under any Environmental Law with respect to any Real Property or
assets of the Companies;



          (iv) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not require any
notification, registration, filing, reporting, disclosure, investigation,
remediation or cleanup pursuant to any Governmental Real Property Disclosure
Requirements or any other Environmental Law; and



          (v) The Companies have made available to Lenders all material reports and
assessments in the possession, custody or control of, or otherwise reasonably
available to, the Companies concerning compliance with or liability under
Environmental Law at the properties owned within the United States, which
reports may concern the existence of Hazardous Material at such properties.



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



     SECTION 3.19 Security Documents. (a) The Security Agreements are
effective to create in favor of the Collateral Agent for the benefit of the
Secured Parties, a legal, valid and enforceable security interest in and Lien
on the Security Agreement Collateral and, when (i) financing statements and
other filings in appropriate form are filed in the offices specified on
Schedule 4 to the Perfection Certificate and (ii) upon the taking of possession
or control by the Collateral Agent of the Security Agreement Collateral with
respect to which a security interest may be perfected only by possession or
control (which possession or control shall be given to the Collateral Agent to
the extent possession or control by the Collateral Agent is required by each
Security Agreement), the Lien created by the Security Agreements shall
constitute a fully perfected Lien on, and security interest in, all right,
title and interest of the grantors thereunder in the Security Agreement
Collateral (other than such Security Agreement Collateral in which a security
interest cannot be perfected under the UCC or PPSA as in effect at the relevant
time in the relevant jurisdiction), in each case subject to no Liens other than
Permitted Liens.



     (b) When the Security Agreements or a short form thereof is filed in the
United States Patent and Trademark Office and the United States Copyright
Office, Canadian Intellectual Property Office, as applicable, the Lien created
by such Security Agreements shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the grantors thereunder
in the Intellectual Property (as defined in such Security Agreements), in each
case subject to no Liens other than Permitted Liens.



     (c) Each Mortgage executed and delivered as of the Original Closing Date
is, or, to the extent any Mortgage is duly executed and delivered thereafter by
the relevant Loan Party, will be, effective to create, in favor of the
Collateral Agent, for its benefit and the benefit of the Secured Parties, a
legal, valid and enforceable first priority Lien on and security interest in
all of the Loan Parties’ right, title and interest in and to the Mortgaged Real
Properties thereunder and



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the proceeds thereof, and when the Mortgages are
filed in the offices specified on Schedule 1.01(a), (or, in the case of any
Mortgage executed and delivered after the date thereof in accordance with the
provisions of Sections 5.11 and 5.12, when such Mortgage is filed in the
offices specified in the local counsel opinion delivered with respect thereto
in accordance with the provisions of Sections 5.11 and 5.12) the Mortgages
shall constitute fully perfected Liens on, and security interests in, all
right, title and interest of the Loan Parties in the Mortgaged Real Properties
and the proceeds thereof, in each case prior and superior in right to any other
Person, other than Liens reasonably acceptable to the Administrative Agent and
the Collateral Agent.



     (d) Each Security Document delivered pursuant to Sections 5.11 and 5.12
will, upon execution and delivery thereof, be effective to create in favor of
the Collateral Agent, for the benefit of the Secured Parties, a legal, valid
and enforceable security interest in and Lien on all of the Loan Parties’
right, title and interest in and to the Collateral thereunder, and when all
appropriate filings or recordings are made in the appropriate offices as may be
required under applicable law, such Security Document will constitute a fully
perfected Lien on, and security interest in, all right, title and interest of
the Loan Parties in such Collateral, in each case subject to no Liens other
than the applicable Permitted Liens.



     SECTION 3.20 Equity Financing Documents; Representations and Warranties in
Agreement. (a) The Lenders have been furnished true and complete copies of
each Equity Financing Document to the extent executed and delivered on or prior
to the Original Closing Date.



     (b) All representations and warranties of each Company set forth in the
Equity Financing Documents were true and correct in all material respects as of
the time such representations and warranties were made and shall be true and
correct in all material respects as of the Original Closing Date as if such
representations and warranties were made on and as of such date, unless stated
to relate to a specific earlier date, in which case such representations and
warranties shall be true and correct in all material respects as of such
earlier date.



     SECTION 3.21 [Intentionally Omitted.]



     SECTION 3.22 Location of Material Inventory. Schedule 3.22 sets forth all
locations in the United States and Canada where the aggregate value of
Inventory owned by the Loan Parties exceeds the Dollar Equivalent of $250,000.



     SECTION 3.23 Accuracy of Borrowing Base. At the time any Borrowing
Base Certificate is delivered pursuant to this Agreement, (a) each Account and
each item of Inventory included in the calculation of the Borrowing Base
satisfies all of the criteria stated herein (or of which Borrower has hereafter
been notified by Collateral Agent under Section 2.19) to be an Eligible Account
and an item of Eligible Inventory, respectively, (b) each item of Equipment
included in the calculation of the Borrowing Base satisfies all of the criteria
stated herein to be an Eligible Equipment and (c) each parcel of Real Property
included in the calculation of the Borrowing Base satisfies all of the criteria
stated herein satisfies all of the criteria stated herein to be an Eligible
Real Property.



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     SECTION 3.24 Post-Audit Asset Dispositions. As of the Original Closing
Date, the Borrower and the other Loan Parties have not disposed of assets
(other than Inventory sold in the ordinary course of their business) which are
set forth in the Inventory Appraisal, Equipment appraisal or Real Property
appraisals and which have an aggregate fair market value of more than the
Dollar Equivalent of $250,000.



     SECTION 3.25 Holding Companies; Inactive Subsidiaries. (a) Except for the
ownership of interests in Real Property set forth in Schedule 6.18, no Holding
Company (i) engages in any trade or business other than providing
administrative and managerial services on behalf of the Companies, (ii) owns
any assets (other than Equity Interests and Indebtedness, including
intercompany Indebtedness, which are pledged to the Collateral Agent on the
Closing Date) or (iii) has any liabilities (other than for the Obligations,
intercompany Indebtedness and the Indebtedness evidenced by the Qualified
Senior Notes) in an aggregate amount that exceeds $25,000.



     (b) No Domestic or Canadian Inactive Subsidiary (i) has assets with an
aggregate book value in excess of $25,000 other than Indebtedness and Equity
Interests on the Closing Date pledged to the Collateral Agent, (ii) has any
liabilities (other than for the Obligations, intercompany Indebtedness and the
Indebtedness evidenced by the Qualified Senior Notes) in an aggregate amount
that exceeds $25,000 or (iii) engages in any trade or business.



     SECTION 3.26 Common Enterprise. Holdings is the direct or indirect and
beneficial owner and holder of all of the issued and outstanding shares of
stock or other Equity Interests in the Borrower and the other Guarantors.
Borrower and Guarantors make up a related organization of various entities
constituting a single economic and business enterprise so that Borrower and
Guarantors share a substantial identity of interests such that any benefit
received by any one of them benefits the others. Borrower and certain
Guarantors render services to or for the benefit of Borrower and/or
the other Guarantors, as the case may be, purchase or sell and supply
goods to or from or for the benefit of the others, make loans, advances and
provide other financial accommodations to or for the benefit of Borrower and
Guarantors (including, inter alia, the payment by Borrower and Guarantors of
creditors of the Borrower or Guarantors and guarantees by Borrower and
Guarantors of indebtedness of Borrower and Guarantors and provide
administrative, marketing, payroll and management services to or for the
benefit of Borrower and Guarantors). Borrower and Guarantors have centralized
accounting, common officers and directors and are in certain circumstances are
identified to creditors as a single economic and business enterprise (i.e., as
Holdings’ “domestic” business).



ARTICLE IV.




CONDITIONS TO CREDIT EXTENSIONS




     SECTION 4.01 Conditions to Continue to Fund the Credit Extensions. The
obligation of each Lender to make or continue the Credit Extensions requested
to be made or continued by it on the Closing Date and of each Issuing Bank to
issue or to cause to be issued or continue Letters of Credit on the Closing
Date shall be subject to the prior or concurrent satisfaction of each of the
conditions precedent set forth in this Section 4.01.



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     (a) Loan Documents. All legal matters incident to this Agreement, the
Borrowings and extensions of credit hereunder and the other Loan Documents
shall be satisfactory to the Lenders, to the Issuing Bank to the Administrative
Agent and the Collateral Agent, and there shall have been delivered to the
Administrative Agent and the Collateral Agent an executed counterpart of this
Agreement and such other documents, instruments, agreements, certificates and
legal opinions as the Administrative Agent and/or the Collateral Agent shall
reasonably request in connection with the transactions contemplated by this
Agreement, including all those listed in the Closing Checklist attached hereto
as Annex III.



     (b) Corporate Documents. The Administrative Agent and Collateral Agent
shall have received:



          (i) a certificate of the Secretary or Assistant Secretary of each Loan
Party dated the Closing Date and certifying (A) that there has been no change
to the certificate or articles of incorporation or other constitutive documents
since the Original Closing Date, (B) that there has been no change to the
by-laws of such Loan Party since the Original Closing Date, (C) that attached
thereto is a true and complete copy of resolutions duly adopted by the Board of
Directors of such Loan Party authorizing the execution, delivery and
performance of the Loan Documents to which such Person is a party and, in the
case of Borrower, the borrowings hereunder, and that such resolutions have not
been modified, rescinded or amended and are in full force and effect, (D) as to
the incumbency and specimen signature of each officer executing any Loan
Document or any other document delivered in connection herewith on behalf of
such Loan Party (together with a certificate of another officer as to the
incumbency and specimen signature of the Secretary or Assistant Secretary
executing the certificate in this clause (i));



          (ii) a long form certificate as to the good standing of each Loan Party as
of a recent date, from such Secretary of State; and



          (iii) such other documents as the Lenders, the Issuing Bank or the
Administrative Agent may reasonably request.



     (c) Officers’ Certificate. The Administrative Agent and the Collateral
Agent shall have received a certificate, dated the Closing Date and signed by
the Chief Executive Officer and the Chief Financial Officer of Borrower,
confirming compliance with the conditions precedent set forth in Section 4.01
and paragraphs (b), (c), (d) and (e) of Section 4.02 and certifying that no
Default or Event of Default under the Prior Credit Agreement has occurred and
is continuing as of the Closing Date.



     (d) Opinions of Counsel. The Administrative Agent and Collateral Agent
shall have received, on behalf of themselves, the Arrangers, the Lenders and
the Issuing Bank, (i) a favorable written opinion of (A) Blank Rome LLP,
special counsel for the Loan Parties, substantially to the effect set forth in
Exhibit K and (B) Osler, Hoskin & Harcourt LLP, Canadian counsel for the Loan
Parties and (ii) a favorable written confirmation of each other local and
foreign counsel listed on Schedule 4.01(g) (all of which counsels delivered
opinions in connection with the Prior Credit Agreement), in each case (A) dated
the Closing Date, (B) addressed to the Administrative Agent, the Collateral
Agent, the Issuing Bank and the Lenders



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and (C) covering such other matters
relating to the Loan Documents and the Transactions as the Administrative Agent
shall reasonably request.



     (e) Fees. (i) The Arrangers, Collateral Agent and Administrative Agent
shall have received all Fees and other amounts due and payable (excluding such
Fees which may become due and payable on each anniversary of the Original
Closing Date as set forth in Section 12.01(f)) on or prior to the Closing Date,
including, and, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses (including reasonable legal fees and expenses of Latham
& Watkins, LLP, special counsel to the Administrative Agent and the Collateral
Agent), and the fees and expenses of any local counsel, appraisers, consultants
and other advisors) required to be reimbursed or paid by Borrower hereunder or
under any other Loan Document and (ii) Borrower shall have paid to the
Administrative Agent (for the account of the Lenders) in immediately available
funds an amendment fee equal to each Lender’s Pro Rata Percentage of 0.1% of
the Commitments.



     (f) Personal Property Requirements. The Collateral Agent shall have
received certified copies of UCC, PPSA, tax and judgment lien searches,
bankruptcy and pending lawsuit searches or equivalent reports or searches, each
of a recent date listing all effective financing statements, lien notices or
comparable documents that name any Loan Party as debtor and that are filed in
those state, county or provincial jurisdictions in which any Property of any
Loan Party is located and the state, county or provincial jurisdictions in
which any Loan Party is organized or maintains its principal place of business
and such other searches that the Collateral Agent deems necessary or
appropriate, none of which encumber the Collateral covered or intended to be
covered by the Security Documents (other than Permitted Liens and those
relating to Liens acceptable to the Collateral Agent).



     (g) Real Property Requirements. The Collateral Agent shall have received:



          (i) with respect to each Mortgage, endorsements to each Title Policy (or
zoning letters to the extent obtained by Loan Parties) as shall be reasonably
requested by the Collateral Agent to “bring-down” the status of title and to
confirm that the Title Policy continues to apply to the Mortgages and the
Obligations under this Agreement and the Prior Credit Agreement; and



          (ii) with respect to each Mortgaged Real Property, such affidavits,
certificates, information (including financial data) and instruments of
indemnification (including, without limitation, a so-called “gap”
indemnification) as shall be required to induce the Title Company to issue the
endorsements contemplated in subparagraph (i) above.



     SECTION 4.02 Conditions to All Credit Extensions. The obligation of each
Lender and each Issuing Bank to make any Credit Extension (including the
initial Credit Extension) shall be subject to, and to the satisfaction of, each
of the conditions precedent set forth below.



     (a) Notice. The Administrative Agent shall have received a Borrowing
Request as required by Section 2.03 (or such notice shall have been deemed
given in accordance with Section 2.03) if Loans are being requested or, in the
case of the issuance, amendment, extension or renewal of a Letter of Credit,
the Issuing Bank and the Administrative Agent shall have



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received a notice
requesting the issuance, amendment, extension or renewal of such Letter of
Credit as required by Section 2.18(b) or, in the case of the Borrowing of a
Swingline Loan, the Swingline Lender and the Administrative Agent shall have
received a notice requesting such Swingline Loan as required by Section
2.17(b).



     (b) No Default. The Borrower and each other Loan Party shall be in
compliance in all material respects with all the terms and provisions set forth
herein and in each other Loan Document on its part to be observed or performed,
and, at the time of and immediately after such Credit Extension, no Default
shall have occurred and be continuing on such date or after giving effect to
the Credit Extension requested to be made on such date.



     (c) Representations and Warranties. Each of the representations and
warranties made by any Loan Party set forth in Article III hereof or in any
other Loan Document shall be true and correct in all material respects (except
that any representation and warranty that is qualified as to “materiality” or
“Material Adverse Effect” shall be true and correct in all respects) on and as
of the date of such Credit Extension with the same effect as though made on and
as of such date, except to the extent such representations and warranties
expressly relate to an earlier date.



     (d) No Material Adverse Effect. There has been no event, condition and/or
contingency that has had or is reasonable likely to have a Material Adverse
Effect, as reasonably determined by either the Administrative Agent or the
Collateral Agent.



     (e) No Legal Bar. No order, judgment or decree of any Governmental
Authority shall purport to restrain such Lender from making any Loans to be
made by it or the Issuing Bank from issuing Letters of Credit. No injunction
or other restraining order shall have been issued,
shall be pending or noticed with respect to any action, suit or proceeding
seeking to enjoin or otherwise prevent the consummation of, or to recover any
damages or obtain relief as a result of, the transactions contemplated by this
Agreement or the making of Loans hereunder.



Each of the delivery of a Borrowing Request or notice requesting the issuance,
amendment, extension or renewal of a Letter of Credit and the acceptance by the
Borrower of the proceeds of such Credit Extension shall constitute a
representation and warranty by Borrower and each other Loan Party that on the
date of such Credit Extension (both immediately before and after giving effect
to such Credit Extension and the application of the proceeds thereof) the
conditions contained in this Section 4.02 have been satisfied. Borrower shall
provide such information (including calculations in reasonable detail of the
covenants in Section 6.08) as the Administrative Agent or the Collateral Agent
may reasonably request to confirm that the conditions in this Section 4.02 have
been satisfied.



ARTICLE V.




AFFIRMATIVE COVENANTS




     Each Loan Party covenants and agrees with each Lender that so long as this
Agreement shall remain in effect and until the Commitments have been terminated
and the principal of and interest on each Loan, all Fees and all other expenses
or amounts payable under any Loan Document shall have been paid in full and all
Letters of Credit have been canceled or have



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expired or been fully cash
collateralized and all amounts drawn thereunder have been reimbursed in full,
unless the Required Lenders shall otherwise consent in writing, each Loan Party
will, and will cause each of its Subsidiaries to:



     SECTION 5.01 Financial Statements, Reports, etc. In the case of Holdings
and Borrower, furnish to the Administrative Agent and each Lender:



     (a) Annual Reports. Within 90 days after the end of each fiscal year (but
no later than the date on which Holdings is required to file a Form 10-K under
the Exchange Act), (i) the consolidated and consolidating (by region or, if
requested by the Collateral Agent exercising in its reasonable credit judgment,
by entity) balance sheet of Holdings as of the end of such fiscal year and
related consolidated and consolidating (by region or, if requested by the
Collateral Agent exercising in its reasonable credit judgment, by entity)
statements of income, cash flows and stockholders’ equity for such fiscal year,
and notes thereto (including a note with a balance sheet and statements of
income and cash flows separating out results consistent with reporting to the
SEC), all prepared in accordance with Regulation S-X under the Securities Act
and accompanied by an opinion of Deloitte & Touche LLP or other independent
public accountants of recognized national standing satisfactory to the
Administrative Agent or one of the other “Big 4” accounting firms (which
opinion shall not be qualified as to scope or contain any going concern or
other qualification), stating that such financial statements fairly present, in
all material respects, the consolidated financial condition, results of
operations, cash flows and changes in stockholders’ equity of the Consolidated
Companies as of the end of and for such fiscal year in accordance with GAAP
consistently applied, (ii) a management report in a form
reasonably satisfactory to the Administrative Agent setting forth, on a
consolidating basis (by region or, if requested by the Collateral Agent
exercising in its reasonable credit judgment, by entity), the financial
condition, results of operations and cash flows of the Consolidated Companies
(on a consolidated basis) as of the end of and for such fiscal year, as
compared to the Consolidated Companies’ financial condition, results of
operations and cash flows as of the end of and for the previous fiscal year and
its budgeted results of operations and cash flows, (iii) a management’s
discussion and analysis of the financial condition and results of operations
for such fiscal year, as compared to the previous fiscal year and (iv) a
schedule setting forth the intercompany Indebtedness outstanding and changes
thereto since the prior fiscal year;



     (b) Quarterly Reports. Within 45 days after the end of each of the first
three fiscal quarters of each fiscal year (but no later than the date on which
Holdings is required to file a Form 10-Q under the Exchange Act), (i) the
consolidated and consolidating (by region or, if requested by the Collateral
Agent exercising in its reasonable credit judgment, by entity) balance sheet of
Holdings as of the end of such fiscal quarter and related consolidated and
consolidating (by region or, if requested by the Collateral Agent exercising in
its reasonable credit judgment, by entity) statements of income and cash flows
for such fiscal quarter and for the then elapsed portion of the fiscal year, in
comparative form with the consolidated statements of income and cash flows for
the comparable periods in the previous fiscal year, and notes thereto
(including a note with a balance sheet and statements of income and cash flows
separating out results consistent with reporting to the SEC), all prepared in
accordance with Regulation S-X under the Securities Act and accompanied by a
certificate of a Financial Officer stating that such financial statements
fairly present, in all material respects, the consolidated financial condition,
results of operations and cash flows of the Consolidated Companies as of the
date and for the periods




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specified in accordance with GAAP consistently
applied, and on a basis consistent with audited financial statements referred
to in paragraph (a) if this Section 5.01(b), subject to normal year-end audit
adjustments, (ii) a management report in a form reasonably satisfactory to the
Administrative Agent setting forth, on a consolidating basis (by region or, if
requested by the Collateral Agent exercising in its reasonable credit judgment,
by entity), the financial condition, results of operations and cash flows of
the Consolidated Companies (on a consolidated basis) as of the end of and for
such fiscal quarter and for the then elapsed portion of the fiscal year, as
compared to the Consolidated Companies’ financial condition, results of
operations and cash flows as of the end of such fiscal quarter and for the
comparable periods in the previous fiscal year and its budgeted results of
operations and cash flows, (iii) a management’s discussion and analysis of the
financial condition and results of operations for such fiscal quarter and the
then elapsed portion of the fiscal year, as compared to the comparable periods
in the previous fiscal year and (iv) a schedule setting forth the intercompany
Indebtedness outstanding and changes thereto since the fiscal quarter;




     (c) Monthly Reports. Within 30 days after the end of each month, the
consolidated balance sheet of Holdings as of the end of such month and related
consolidated statements of income and cash flows of Holdings for such month and
for the then elapsed portion of the fiscal year, in comparative form with the
consolidated statements of income and cash flows for the comparable periods in
the previous fiscal year, accompanied by a certificate of a Financial Officer
stating that such financial statements fairly present, in all material
respects, the consolidated results of operations and cash flows of the
Consolidated Companies as of the date and for the periods specified in
accordance with GAAP consistently applied, subject to normal
year-end audit adjustments, and setting forth, on a consolidating basis
(by region or, if requested by the Collateral Agent exercising in its
reasonable credit judgment, by entity), the results of operations and cash
flows for such month and for the then elapsed portion of the fiscal year, as
compared to its results of operations and cash flows for the comparable periods
in the previous fiscal year and its budgeted results of operations and cash
flows and a schedule setting forth the intercompany Indebtedness outstanding
and changes thereto since the prior month;



     (d) Financial Officer’s Certificate. (i) Concurrently with any delivery
of financial statements under paragraphs (a), (b) or (c) above, a certificate
of a Financial Officer certifying that no Default has occurred or, if such a
Default has occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto; (ii)
concurrently with any delivery of financial statements under sub-paragraph (a)
or (b) above, a Compliance Certificate; and (iii) in the case of paragraph (a)
above, a report of the accounting firm opining on or certifying such financial
statements stating that in the course of its regular audit of the financial
statements of Holdings and its Subsidiaries, which audit was conducted in
accordance with GAAP, such accounting firm obtained no knowledge that any
Default has occurred or, if in the opinion of such accounting firm such a
Default has occurred, specifying the nature and extent thereof;



     (e) Financial Officer’s Certificate Regarding Collateral. Concurrently
with any delivery of financial statements under paragraph (a) above, a
certificate of a Financial Officer setting forth the information required
pursuant to the Perfection Certificate or confirming that there has been no
change in such information since the date of the Perfection Certificate or
Supplement;



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     (f) Public Reports. Promptly after the same become publicly available,
copies of all periodic and other reports, proxy statements and other materials
filed by any Company with the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed to holders
of its Indebtedness pursuant to the terms of the documentation governing such
Indebtedness (or any trustee, agent or other representative therefor), as the
case may be;



     (g) Management Letters. Promptly after the receipt thereof by any
Company, a copy of any “management letter” received by any such Person from its
certified public accountants and the management’s responses thereto;



     (h) Budgets. No later than January 1, 2005 for the fiscal year of
Holdings and Borrower ending on December 31, 2005, and no later than 15 days
prior to the first day of each subsequent fiscal year of Holdings and Borrower,
a budget in form reasonably satisfactory to the Administrative Agent and the
Collateral Agent (including budgeted statements of income by each of Borrower’s
business units and sources and uses of cash and balance sheets) prepared by
each of Holdings and Borrower, respectively, for (i) each fiscal month of such
fiscal year prepared in detail and (ii) each of the two years immediately
following such fiscal year prepared in summary form, in each case, of Holdings,
Borrower and their respective Subsidiaries, with appropriate presentation and
discussion of the principal assumptions upon which such budgets are based,
accompanied by the statement of a Financial Officer of each of Holdings and
Borrower to the effect that the budget of Holdings and Borrower, respectively,
is a reasonable estimate for the period covered thereby;



     (i) Annual Meetings with Lenders. Within 120 days after the close of each
fiscal year of Holdings, Holdings and Borrower shall, at the request of the
Administrative Agent or Required Lenders, hold a meeting (at a mutually
agreeable location and time) with all Lenders who choose to attend such meeting
at which meeting shall be reviewed the financial results of the previous fiscal
year and the financial condition of the Companies and the budgets presented for
the current fiscal year of the Companies; and



     (j) Other Information. Promptly, from time to time, such other
information regarding the operations, business affairs and financial condition
of any Company, or compliance with the terms of any Loan Document, as the
Administrative Agent or any Lender may reasonably request.



     SECTION 5.02 Litigation and Other Notices. Furnish to the Administrative
Agent, the Collateral Agent and each Lender prompt written notice of the
following:



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



     (b) the filing or commencement of, or to the knowledge of any Company, any
threat or notice of intention of any Person to file or commence, any action,
suit or proceeding, whether at law or in equity by or before any Governmental
Authority, (i) against any Company or any Affiliate thereof that could
reasonably be expected to result in a Material Adverse Effect or (ii) with
respect to any Loan Document;



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



     (d) the occurrence of a Casualty Event which is reasonably likely to
result in a loss or damage in excess of $100,000 and will ensure that the Net
Cash Proceeds of any Casualty Event (whether in the form of insurance proceeds,
condemnation awards or otherwise) are collected and applied in accordance with
the applicable provisions of this Agreement and the Security Documents;



     (e) (i) the incurrence of any material Lien (other than Permitted Liens)
on, or claim asserted against any of the Collateral or (ii) the occurrence of
any other event which could materially affect the value of the Collateral; and



     (f) any threatened indictment by any Governmental Authority of any Loan
Party, as to which any Loan Party receives knowledge or notice, under any
criminal or civil proceedings against any Loan Party pursuant to which statute
or proceedings the penalties or remedies sought or available include forfeiture
of (i) any of the Collateral having a value in excess of $1.0 million or (ii)
any other Property of any Loan Party which is necessary or material to the
conduct of its business.



     SECTION 5.03 Existence; Businesses and Properties. (a) Do or cause to be done all things necessary to preserve, renew and
keep in full force and effect its legal existence, except as otherwise
expressly permitted under Section 6.05 or, in the case of any Subsidiary, where
the failure to perform such obligations, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.



     (b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
material to the conduct of its business; maintain and operate such business in
substantially the manner in which it is presently conducted and operated;
comply with all applicable Requirements of Law (including any and all zoning,
building, Environmental Law, ordinance, code or approval or any building
permits or any restrictions of record or agreements affecting the Real
Property) and decrees and orders of any Governmental Authority, whether now in
effect or hereafter enacted, except where the failure to comply, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect; pay and perform its obligations under all Leases and
Transaction Documents; and at all times maintain and preserve all Property
material to the conduct of the business of any Loan Party and keep such
Property in good repair, working order and condition and from time to time
make, or cause to be made, all needful and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business of
any Loan Party carried on in connection therewith may be properly conducted at
all times; provided, that nothing in this Section 5.03(b) shall prevent (i)
sales of assets, consolidations or mergers by or involving any Company in
accordance with Section 6.05; (ii) the withdrawal by any Company of its
qualification as a foreign corporation in any jurisdiction where such
withdrawal, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect; or (iii) the abandonment by any Company
of any rights, franchises, licenses, trademarks, tradenames, copyrights or
patents that such Person reasonably determines are not useful to its business.



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     SECTION 5.04 Insurance. (a) Keep its insurable Property adequately
insured at all times by financially sound and reputable insurers (provided,
that Borrower shall not be deemed to breach this provision if, after its
insurer becomes unsound or irreputable, Borrower promptly and diligently
obtains adequate insurance from an alternative carrier); maintain such other
insurance, to such extent and against such risks, including fire and other
risks insured against by extended coverage, as is customary with companies in
the same or similar businesses operating in the same or similar locations,
including public liability insurance against claims for personal injury or
death or Property damage occurring upon, in, about or in connection with the
use of any Property owned, occupied or controlled by it; and maintain such
other insurance as may be required by law; and, with respect to the Collateral,
otherwise maintain all insurance coverage required under each applicable
Security Document, such policies to be in such form and amounts and having such
coverage as may be reasonably satisfactory to the Collateral Agent, it being
agreed that the levels of insurance in place on the Original Closing Date,
absent a material change in the Property of the Loan Parties, shall be
satisfactory to the Collateral Agent so long as appropriate steps are taken to
assure that such insurance coverage is also obtained for any future
Subsidiaries.



     (b) All such insurance shall (i) provide that no cancellation thereof
shall be effective until at least 30 days after receipt by the Collateral Agent
of written notice thereof, (ii) name the Collateral Agent as mortgagee (in the
case of Property insurance) or additional insured (in the case of liability
insurance) or loss payee (in the case of casualty insurance), as applicable,
(iii) if reasonably requested by the Collateral Agent, include a breach of
warranty clause and (iv) be reasonably satisfactory in all other respects to
the Collateral Agent.



     (c) Notify the Collateral Agent immediately whenever any separate
insurance concurrent in form or contributing in the event of loss with that
required to be maintained under this Section 5.04 is taken out by any Company;
and promptly deliver to the Collateral Agent a duplicate original copy of such
policy or policies.



     (d) Obtain flood insurance in such total amount as the Collateral Agent or
the Required Lenders may from time to time reasonably require, if at any time
the area in which any improvements located on any real Property covered by a
Mortgage is designated a “flood hazard area” in any Flood Insurance Rate Map
published by the Federal Emergency Management Agency (or any successor agency),
and otherwise comply with the National Flood Insurance Program as set forth in
the Flood Disaster Protection Act of 1975, as amended from time to time.



     (e) Deliver to the Administrative Agent and the Collateral Agent a report
of a reputable insurance broker with respect to such insurance and such
supplemental reports with respect thereto as the Administrative Agent or the
Collateral Agent may from time to time reasonably request.



     SECTION 5.05 Obligations and Taxes. (a) Pay its Indebtedness and other
obligations promptly and in accordance with their terms and pay and discharge
promptly when due all Taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or in respect of its Property,
before the same shall become delinquent or in default, as well as all lawful
claims for labor, materials and supplies or otherwise that, if unpaid, might
give rise to a Lien other than a Permitted Lien upon such properties or any
part thereof;



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provided, that such payment and discharge shall not be required
with respect to any such Tax, assessment, charge, levy or claim so long as the
validity or amount thereof shall be contested in good faith by appropriate
proceedings and the applicable Company shall have set aside on its books
adequate reserves with respect thereto in accordance with GAAP and such contest
operates to suspend collection of the contested obligation, Tax, assessment or
charge and enforcement of a Lien other than a Permitted Lien and, in the case
of Collateral, the applicable Company shall have otherwise complied with the
Contested Collateral Lien Conditions.



     (b) Timely and correctly file all material Tax Returns required to be
filed by it.



     SECTION 5.06 Employee Benefits and Pension Plans. (a) With respect to each Plan, comply in all material respects with
the applicable provisions of ERISA and the Code and (b) furnish to the
Administrative Agent (x) as soon as possible after, and in any event within 10
days after any Responsible Officer of the Companies or their ERISA Affiliates
or any ERISA Affiliate knows or has reason to know that, any ERISA Event has
occurred that, alone or together with any other ERISA Event could reasonably be
expected to result in liability of the Companies or their ERISA Affiliates in
an aggregate amount exceeding $500,000 or the imposition of a Lien, a statement
of a Financial Officer of Holdings setting forth details as to such ERISA Event
and the action, if any, that the Companies propose to take with respect
thereto, and (y) upon request by the Administrative Agent, copies of: (i) each
Schedule B (Actuarial Information) to the annual report (Form 5500 Series)
filed by any Company or any ERISA Affiliate with the Internal Revenue Service
with respect to each Plan; (ii) the most recent actuarial valuation report for
each Plan; (iii) all notices received by any Company or any ERISA Affiliate
from a Multiemployer Plan sponsor or any governmental agency concerning an
ERISA Event; and (iv) such other documents or governmental reports or filings
relating to any Plan (or employee benefit plan sponsored or contributed to by
any Company) as the Administrative Agent shall reasonably request.



     (b) For each existing Canadian Pension Plan of any Canadian Loan Party,
such Canadian Loan Party shall, except as provided in Schedule 3.16, ensure
that such plan retains its registered status under and is administered in a
timely manner in all material respects in accordance with the applicable
pension plan text, funding agreement, the ITA and all other applicable laws.
For each Canadian Pension Plan hereafter adopted by any Canadian Loan Party
that is required to be registered under the ITA or any other applicable laws,
that Canadian Loan Party shall use its best efforts to seek and receive
confirmation in writing from the applicable governmental authorities to the
effect that such plan is unconditionally registered under the ITA and such
other applicable laws. For each existing and hereafter adopted Canadian
Pension Plan and Canadian Benefit Plan of any Canadian Loan Party, such
Canadian Loan Party shall in a timely fashion perform in all material respects
all obligations (including fiduciary, funding, investment and administration
obligations) required to be performed in connection with such plan and the
funding media therefor. Each Canadian Loan Party shall deliver to Collateral
Agent if requested by Collateral Agent, (i) promptly after the filing thereof
by such Canadian Loan Party with any applicable governmental authority, copies
of each annual and other return, report or valuation with respect to each
Canadian Pension Plan of such Canadian Loan Party; (ii) promptly after receipt
thereof, a copy of any direction, order, notice, ruling or opinion that such
Canadian Loan Party may receive from any applicable Governmental Authority with
respect to any Canadian Pension Plan of such Canadian Loan Party; (iii)
notification within 30 days of any increases having a cost to such



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Canadian
Loan Party in excess of Cdn. $250,000 per annum, in the benefits of any
existing Canadian Pension Plan or Canadian Benefit Plan, or the establishment
of any new Canadian Pension Plan or Canadian Benefit Plan, or the commencement
of contributions to any such plan to which such Canadian Loan Party was not
previously contributing and (iv) all material documents related to matters
disclosed in Schedule 3.16.



     SECTION 5.07 Maintaining Records; Access to Properties and Inspections. Keep proper books of record and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law are made of all
dealings and transactions in relation to its business and activities. Keep
proper records of intercompany accounts (including, without limitation, the
Borrowing Base Guarantor Intercompany Loan Account) with full, true and correct
entries reflecting all payments received and paid (including, without
limitation, funds received by Borrower from swept deposit accounts of the other
Companies). Each Loan Party and other Company whose Equity Interests are
pledged to the Collateral Agent will permit any representatives designated by
the Administrative Agent or the Collateral Agent to visit and inspect the
financial records and the Property of such Loan Party and other Company whose
Equity Interests are pledged to the Collateral Agent at reasonable times and as
often as reasonably requested and to make extracts from and copies of such
financial records, and permit any representatives designated by the
Administrative Agent or the Collateral Agent to discuss the affairs, finances
and condition of any Loan Party and other Company whose Equity Interests are
pledged to the Collateral Agent with the officers thereof and independent
accountants therefor.



     SECTION 5.08 Use of Proceeds. Use the proceeds of the Loans and request
the issuance of Letters of Credit only for the purposes set forth in Section
3.11.



     SECTION 5.09 Compliance with Environmental Laws; Environmental Reports.
(a) Comply, and use its best efforts to cause all lessees and other Persons
occupying Real Property owned, operated or leased by any Loan Party to comply,
in all material respects with all Environmental Laws and Environmental Permits
applicable to its operations and Real Property; obtain and renew all material
Environmental Permits applicable to its operations and Real Property; and
conduct any Response in accordance with Environmental Laws; provided, that no
Company shall be required to undertake any Response to the extent that its
obligation to do so is being contested in good faith and by proper proceedings
and appropriate reserves are being maintained with respect to such
circumstances in accordance with GAAP.



     (b) If a Default caused by reason of a breach of Section 3.17 or 5.09(a)
shall have occurred and be continuing for more than 20 days without the
Companies commencing activities reasonably likely to cure such Default, at the
written request of the Required Lenders through the Administrative Agent,
provide to the Lenders within 45 days after such request, at the expense of
Borrower, an environmental assessment report regarding the matters which are
the subject of such default, including where appropriate, any soil and/or
groundwater sampling, prepared by an environmental consulting firm and in the
form and substance reasonably acceptable to the Administrative Agent and
Collateral Agent and indicating the presence or absence of Hazardous Materials
and the estimated cost of any compliance or Response to address them.



     SECTION 5.10 [Intentionally Omitted]



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     SECTION 5.11 Additional Collateral; Additional Guarantors. (a) Subject
to this Section 5.11, with respect to any Property acquired after the Original
Closing Date by Borrower or any other Loan Party that is intended to be subject
to the Lien created by any of the Security Documents but is not so subject
(but, in any event, excluding any Property described in paragraph (b) of this
subsection) promptly (and in any event within 30 days after the acquisition
thereof provided Collateral Agent has provided all joinder agreements to the
applicable Security Documents necessary for the Loan Parties to comply
herewith): (i) execute and deliver to the Administrative Agent and the
Collateral Agent such amendments or supplements to the relevant Security
Documents or such other documents as the Administrative Agent or the Collateral
Agent shall deem necessary or advisable to grant to the Collateral Agent, for
its benefit and for the benefit of the other Secured Parties, a Lien on such
Property subject to no Liens other than Permitted Liens, and (ii) take all
actions necessary to cause such Lien to be duly perfected to the extent
required by such Security Document in accordance with all applicable
Requirements of Law, including, without limitation, the filing of financing
statements in such jurisdictions as may be reasonably requested by the
Administrative Agent and Collateral Agent. Borrower shall otherwise take such
actions and execute and/or deliver to the Collateral Agent such reasonable
documents as the Administrative Agent or the Collateral Agent shall require to
confirm the validity, perfection and priority of the Lien of the Security
Documents against such after-acquired properties or assets.



     (b) With respect to any Person that is or becomes a Wholly Owned
Subsidiary (other than any Foreign Subsidiary that is not a direct Subsidiary
of a Loan Party) promptly (and in any event within 30 days after such Person
becomes a Subsidiary) (i) deliver to the Collateral Agent the certificates, if
any, representing the Equity Interests of such Subsidiary (provided, that with
respect to any first-tier Foreign Subsidiary, in no event shall more than 65%
of the Equity Interests of any Foreign Subsidiary be subject to any Lien or
pledged under any Security Document if such pledge would have a material
adverse tax impact on Borrower (determined at the reasonable judgment of the
Administrative Agent after consultation with Borrower), together with undated
stock powers or other appropriate instruments of transfer executed and
delivered in blank by a duly authorized officer of such Subsidiary’s parent, as
the case may be, and all intercompany notes owing from such Subsidiary to any
Loan Party together with instruments of transfer executed and delivered in
blank by a duly authorized officer of such Subsidiary, and (ii) cause such new
Subsidiary (other than any Foreign Subsidiary if such pledge would have a
material adverse tax impact on Borrower (determined at the reasonable judgment
of the Administrative Agent after consultation with Borrower) (A) to execute a
Joinder Agreement or such comparable documentation and a joinder agreement to
the Security Documents in the form annexed thereto which is in form and
substance reasonably satisfactory to the Administrative Agent, and (B) to take
all actions necessary or advisable in the opinion of the Collateral Agent to
cause the Lien created by the Security Agreements to be duly perfected to the
extent required by such agreement in accordance with all applicable
Requirements of Law, including, without limitation, the filing of financing
statements in such jurisdictions as may be reasonably requested by the
Collateral Agent.



     (c) If at any time any one or more Wholly Owned Subsidiaries in the
aggregate (other than any Foreign Subsidiary that is not a “first-tier” Foreign
Subsidiary) not otherwise subject to Section 5.11(b) have assets having either
a book value or fair market value in excess of $10.0 million, then Borrower
shall, and shall cause one or more of such Subsidiaries to, comply with



100









 







Section 5.11(b) within the time frames set forth in such subsection so that no one or
more such Subsidiaries in the aggregate hold assets having either a book value
or fair market value in excess of $10.0 million .



     (d) Each Loan Party will promptly grant to the Collateral Agent, within 60
days of the acquisition thereof, a security interest in and Mortgage Lien on
each owned or leased Real Property of such Loan Party as is acquired by such
Loan Party after the Original Closing Date and that, together with any
improvements thereon, individually has a fair market value of at least $1.0
million, as additional security for the Obligations (unless the subject
Property is already mortgaged to a third party to the extent permitted by
Section 6.02). Such Mortgages shall be granted pursuant to documentation
reasonably satisfactory in form and substance to the Administrative Agent and
the Collateral Agent and shall constitute valid and enforceable perfected Liens
subject only to Liens reasonably acceptable to the Collateral Agent. The
Mortgages or instruments related thereto shall be duly recorded or filed in
such manner and in such places as are required by law to establish, perfect,
preserve and protect the Liens in favor of the Collateral Agent required to be
granted pursuant to the Mortgages and all taxes, fees and other charges payable
in connection therewith shall be paid in full. Such Loan Party shall otherwise
take such actions and execute and/or deliver to the Collateral Agent such
documents as the Administrative Agent or the Collateral Agent shall require to
confirm the validity, perfection and priority of the Lien of any existing
Mortgage or new Mortgage against such after-acquired Real Property (including,
without limitation, a Title Policy, a Survey and local counsel opinion (in form
and substance reasonably satisfactory to the Administrative Agent and the
Collateral Agent) in respect of such Mortgage).



     SECTION 5.12 Security Interests; Further Assurances. Promptly, upon the
reasonable request of the Administrative Agent, the Collateral Agent or any
Lender, at Borrower’s expense, execute, acknowledge and deliver, or cause the
execution, acknowledgment and delivery of, and thereafter register, file or
record, or cause to be registered, filed or recorded, in an appropriate
governmental office, any document or instrument supplemental to or confirmatory
of the Security Documents or otherwise deemed by the Administrative Agent or
the Collateral Agent reasonably necessary or desirable for the continued
validity, perfection and priority of the Liens on the Collateral covered
thereby superior to and prior to the rights of all third Persons other than the
holders of Prior Liens and subject to no other Liens except as permitted by the
applicable Security Document, or obtain any consents, including, without
limitation, landlord or similar lien waivers and consents, as may be necessary
or appropriate in connection therewith. Deliver or cause to be delivered to
the Administrative Agent and the Collateral Agent from time to time such other
documentation, consents, authorizations, approvals and orders in form and
substance reasonably satisfactory to the Administrative Agent and the
Collateral Agent as the Administrative Agent and the Collateral Agent shall
reasonably deem necessary to perfect or maintain the Liens on the Collateral
pursuant to the Security Documents. Upon the exercise by the Administrative
Agent, the Collateral Agent or the Lenders of any power, right, privilege or
remedy pursuant to any Loan Document which requires any consent, approval, registration, qualification
or authorization of any Governmental Authority execute and deliver all
applications, certifications, instruments and other documents and papers that
the Administrative Agent, the Collateral Agent or the Lenders may be so
required to obtain. If the Administrative Agent, the Collateral Agent or the
Required Lenders determine that they are required by law or regulation to have
appraisals prepared in respect of the Real Property of any



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Loan Party
constituting Collateral, Borrower shall provide to the Administrative Agent and
Collateral Agent appraisals that satisfy the applicable requirements of the
Real Estate Appraisal Reform Amendments of FIRREA and are otherwise in form and
substance satisfactory to the Administrative Agent and the Collateral Agent.



     SECTION 5.13 Information Regarding Collateral; Corporate Identity or
Taxpayer Identifications. (a) Furnish to the Administrative Agent and the
Collateral Agent 30 days prior written notice (in the form of an officer’s
certificate), clearly describing any of the following changes (i) in any Loan
Party’s corporate name or in any trade name used to identify it in the conduct
of its business or in the ownership of its properties, (ii) in the location of
any Loan Party’s chief executive office, its principal place of business, any
office in which it maintains books or records relating to Collateral owned by
it or any office or facility at which Collateral owned by it is located
(including the establishment of any such new office or facility), (iii) in any
Loan Party’s identity, taxpayer identification, or corporate structure, (iv) in
any Loan Party’s Federal Taxpayer Identification Number or (v) in any Loan
Party’s jurisdiction of organization. Borrower agrees not to effect or permit
any change referred to in the preceding sentence unless all filings have been
made under the UCC or PPSA or otherwise that are required in order for the
Collateral Agent to continue at all times following such change to have a
valid, legal and perfected security interest in all the Collateral. Borrower
agrees to provide to the Collateral Agent such other information in connection
with such changes as the Collateral Agent may reasonably request. Borrower
also agrees promptly to notify the Administrative Agent and the Collateral
Agent if any material portion of the Collateral is subject to a Casualty Event.



     (b) Each year, at the time of delivery of annual financial statements with
respect to the preceding fiscal year pursuant to paragraph (a) of Section 5.01,
deliver to the Administrative Agent and the Collateral Agent a certificate of a
Financial Officer and the chief legal officer of Borrower (i) setting forth any
changes to the information required pursuant to the Perfection Certificate or
confirming that there has been no change in such information since the date of
the Perfection Certificate delivered on the Closing Date or the date of the
most recent certificate delivered pursuant to this Section 5.13(b) and (ii)
certifying that the Loan Parties have not taken any actions (and are not aware
of any actions so taken) to terminate any UCC or PPSA financing statements
(including fixture filings, as applicable) or other appropriate filings,
recordings or registrations to protect and perfect the security interests and
Liens under the Security Documents; it being understood and agreed that, from
time to time, upon reasonable request of a Lender, the Administrative Agent and
the Collateral Agent shall deliver to such Lender such certificates, supporting
documentation and supporting detail delivered to them under Section 5.13 and
Section 5.15.



     SECTION 5.14 Post-Closing Collateral Matters. Execute and deliver the
documents and complete the tasks set forth on Schedule 5.14, in each case
within the time limits specified on such schedule.



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     SECTION 5.15 Borrowing Base-Related Reports. The Borrower shall deliver
or cause to be delivered (at the expense of the Borrower) to the Collateral
Agent and the Administrative Agent the following:




     (a) as soon as available but in no event less frequently than
monthly, not later than 1:00 p.m., New York City time on the tenth
Business Day of the fiscal month following the most recent fiscal month
then ended, a Borrowing Base Certificate from the Borrower accompanied by
such supporting detail and supporting documentation as shall be requested
by the Collateral Agent in its reasonable judgment, provided, that if at
any time Excess Availability is less than $50.0 million and so long as
Borrower does not maintain Excess Availability in excess of $50.0 million
for a period of three (3) consecutive fiscal months, Borrower shall
deliver additional weekly roll-forward of Accounts referenced in
paragraph (b)(i) below within five (5) Business Days after the end of
each calendar week, and, if requested by the Collateral Agent, a
Borrowing Base Certificate (prepared weekly to reflect results
satisfactory to the Collateral Agent) within five (5) Business Days after
the end of each calendar week, or more frequent Borrowing Base
Certificates reflecting shorter periods as reasonably requested by the
Collateral Agent. Each Borrowing Base Certificate shall reflect all
information through the end of the appropriate period for Borrower and
each Borrowing Base Guarantor; for the purposes of this paragraph (a),
the amount of outstanding Loans and LC Exposure in clause (b) of the
definition of the term “Excess Availability” shall be calculated on the
basis of average daily outstanding Loans and LC Exposure for the
applicable measuring period;




     (b) as soon as available but in no event less frequently than
monthly (or more frequently as reasonably requested by the Collateral
Agent), not later than 1:00 p.m., New York City time on the tenth
Business Day of the fiscal month following the most recent fiscal month
then ended, Accounts and Inventory eligibility calculations and all
supporting calculations including, but not limited to, (i) a roll-forward
of Accounts from the last period including but not limited to the
following: sales, other debits, cash collections, write-offs, cash
discounts, product returns, pricing errors, other dilutive credits and
other non-dilutive credits, (ii) a summary trial balance showing Accounts
(consolidated by total customer balance) aged from the original invoice
statement date as follows: 1 to 30 days, 31 to 60 days, 61-90 days and
91 days or more, accompanied by a comparison to the prior month’s summary
trial balance totals, (iii) a detailed trial balance showing Accounts
(consolidated by total customer balance) specifically identified in
Section 2.19 (xv)(a), aged in a format similar to the format set forth in
clause (ii) above, (iv) a schedule of top ten Accounts aged in a format
similar to the format set forth in clause (ii) above, (v) a schedule of
Inventory (other than Inventory on consignment) by location showing raw
materials, work in process and finished goods, (vi) a schedule of
Inventory on consignment by location (vii) a schedule of the top ten
trade payable
balances, (viii) a reconciliation of Accounts to the general ledger
and the financial statements, (ix) a reconciliation of Inventory to the
general ledger and the financial statements, (x) a reconciliation of
trade accounts payable to the general ledger and the financial
statements;



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     (c) on the date any Borrowing Base Certificate is delivered pursuant
to paragraph (a) above or at such more frequent intervals as the
Collateral Agent may request from time to time (together with a copy of
all or any part of such delivery requested by any Lender in writing after
the Closing Date), a copy of the ledger registering the Borrowing Base
Guarantor Intercompany Loan Account as of the date of the Borrowing Base
Certificate, accompanied by such supporting detail and documentation as
shall be requested by the Collateral Agent in its reasonable credit
judgment;




     (d) at the time of delivery of each of the financial statements
delivered pursuant to Sections 5.01(a) and (b), a reconciliation of the
Accounts trial balance and quarter-end Inventory reports of Borrower and
Borrowing Base Guarantors to the general ledger of such Loan Party, in
each case, accompanied by such supporting detail and documentation as
shall be requested by the Collateral Agent in its reasonable credit
judgment;




     (e) on the date any Borrowing Base Certificate is delivered pursuant
to paragraph (a) above following the most recent fiscal quarter then
ended or at such more frequent intervals as the Collateral Agent may
request from time to time (together with a copy of all or any part of
such delivery requested by any Lender in writing after the Closing Date),
a general description of material assets (other than Eligible Equipment
or Eligible Real Property) owned by the Loan Parties which have been
disposed of;




     (f) on the date any Borrowing Base Certificate is delivered pursuant
to paragraph (a) above following the most recent fiscal quarter then
ended or at such more frequent intervals as the Collateral Agent may
request from time to time (together with a copy of all or any part of
such delivery requested by any Lender in writing after the Closing Date),
a list of any applications for the registration of any patent, trademark
or copyright with the United States Patent and Trademark Office, the
United States Copyright Office, the Canadian Intellectual Property Office
or any similar office or agency which any Loan Party has filed in the
prior fiscal quarter;




     (g) not later than the tenth Business Day of each fiscal month (or
more frequently as reasonably requested by the Collateral Agent), a
schedule of all Hedging Agreements, including notional amounts and a
statement setting forth in reasonable detail the amount Borrower or the
applicable Borrowing Base Guarantor, as applicable, owes counterparties
to Specified Hedging Agreements based on a mark-to-market analysis and
with due regard to recent market volatility as of the last Business Day
of the previous fiscal month (or if not available, the nearest prior
Business Day for which such evaluation is available); and




     (h) such other reports, statements and reconciliations with respect
to the Borrowing Base or Collateral of any or all Loan Parties as the
Collateral Agent shall from time to time request in its reasonable credit
judgment.


The delivery of each certificate and report or any other information delivered
pursuant to this Section 5.15 shall constitute a representation and warranty by
the Borrower that the statements


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and information contained therein are true and
correct in all material respects on and as of such date.




     SECTION 5.16 [Intentionally Omitted].



     SECTION 5.17 Maintenance of Foreign Credit Lines.



     At any time when the average Excess Availability for a period of three (3)
consecutive fiscal months, as calculated by the Collateral Agent at the end of
each fiscal month, is less than $100.0 million, Holdings and Borrower shall
cause its Foreign Subsidiaries to maintain at all times the Foreign Credit
Lines in the amount not less than the Dollar Equivalent of $80.0 million and,
after the closing of the transactions contemplated by the European Term Loan
Documents and funding of the European Term Loan, in the amount not less than
the Dollar Equivalent of $50.0 million. For the purposes of this Section, the
amount of outstanding Loans and LC Exposure in clause (b) of the definition of
the term “Excess Availability” shall be calculated on the basis of the average
daily outstanding Loans and LC Exposure for the applicable measuring period.



     SECTION 5.18 Maintenance of Real Property.



     Borrower and each applicable Loan Party shall:



     (a) Keep all Real Property and systems useful and necessary in the
business of Borrower and such Loan Party in good working order and condition,
ordinary wear and tear excepted.



     (b) Maintain all rights of way, easements, grants, privileges, licenses,
certificates, and permits necessary or advisable for the use of any Real
Property and not, without the prior written consent of the Administrative Agent
and the Collateral Agent, consent to any material public or private restriction
as to the use of any Real Property.



     (c) Preserve and protect the Lien status of each respective Mortgage and,
if any Lien (other than a Permitted Lien) is asserted against a Mortgaged Real
Property, promptly and at its expense, give the Administrative Agent and the
Collateral Agent a detailed written notice of such Lien and pay the underlying
claim in full or take such other action so as to cause it to be released or
bonded over in a manner satisfactory to the Administrative Agent and the
Collateral Agent.



ARTICLE VI.




NEGATIVE COVENANTS




     Each Loan Party covenants and agrees with each Lender that, so long as
this Agreement shall remain in effect and until the Commitments have been
terminated and the principal of and interest on each Loan, all Fees and all
other expenses or amounts payable under any Loan Document have been paid in
full and all Letters of Credit have been canceled or have expired or been fully
cash collateralized and all amounts drawn thereunder have been reimbursed in
full, unless the Required Lenders shall otherwise consent in writing, no Loan
Party will, nor will they cause or permit any Subsidiaries to:



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     SECTION 6.01 Indebtedness. Incur, create, assume or permit to exist,
directly or indirectly, any Indebtedness, except:




     (a) Indebtedness incurred pursuant to this Agreement and the other
Loan Documents;




     (b) (i) Indebtedness actually outstanding on the Original Closing
Date and listed on Schedule 6.01(b) or (ii) refinancings or renewals
thereof; provided, that (A) any such refinancing Indebtedness is in an
aggregate principal amount not greater than the aggregate principal
amount of the Indebtedness being renewed or refinanced, plus the amount
of any premiums required to be paid thereon and fees and expenses
associated therewith, (B) such refinancing Indebtedness has a later or
equal final maturity and longer or equal weighted average life than the
Indebtedness being renewed or refinanced and (C) the covenants, events of
default subordination and other provisions thereof (including any
guarantees thereof) shall be, in the aggregate, no less favorable to the
Lenders than those contained in the Indebtedness being renewed or
refinanced, and (iii) the Qualified Senior Notes (including any notes
issued in exchange therefor) in accordance with the registration rights
document entered into in connection with the issuance of the Qualified
Senior Notes;




     (c) Indebtedness of any Company under (i) Interest Rate Protection
Agreements listed on Schedule 6.01(c), (ii) under Specified Hedging
Agreement constituting Interest Rate Protection Agreements entered into
in order to fix the effective rate of interest on the Loans and such
other non-speculative Interest Rate Protection Agreements which
constitute Specified Hedging Agreement which may be entered into from
time to time by such Company and which such Company in good faith
believes will provide protection against fluctuations in interest rates
with respect to floating rate Indebtedness of such Company then
outstanding, and permitted to remain outstanding, pursuant to the other
provisions of this Section 6.01 or (iii) under Specified Hedging
Agreements constituting Interest Rate Protection Agreements entered into
to exchange fixed rate of interest on not more than $100.0 million of
aggregate principal amount of outstanding Indebtedness evidenced by the
Qualified Senior Notes, for floating rate of interest thereon;




     (d) Indebtedness under Specified Hedging Agreements (other than
Interest Rate Protection Agreements) entered into from time to time by
any Company in accordance with Section 6.04(c);




     (e) to the extent recorded in the Companies’ intercompany account
ledgers, intercompany Indebtedness of any of the Companies outstanding to
the extent permitted by Section 6.04(d), 6.04(m) or 6.06(d);




     (f) Indebtedness of the Borrower, its Domestic Subsidiaries and
General Cable Canada in respect of Purchase Money Obligations and Capital
Lease Obligations and refinancings or renewals thereof (other than
refinancings funded with intercompany advances), in an aggregate amount
not to exceed the Dollar Equivalent of $5.0 million at any time
outstanding;



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     (g) Indebtedness incurred by Foreign Subsidiaries (including Foreign
Credit Lines but exclusive of the Indebtedness incurred by General Cable
Spain pursuant to the European Term Loan and exclusive of the GCC Spain
Intercompany Debt) from time to time after the Original Closing Date so
long as the aggregate principal amount of all such Indebtedness
(including trade letters of credit) incurred pursuant to this paragraph
(g) at any time outstanding does not exceed the Dollar Equivalent of (i)
with respect to Indebtedness outstanding under the Foreign Credit Lines,
the Dollar Equivalent of $150.0 million and (ii) with respect to all such
other Indebtedness, $25.0 million; provided, that such Indebtedness
incurred by Foreign Subsidiaries which is owing to Borrower or a
Borrowing Base Guarantor shall be permitted only to the extent permitted
under Section 6.04(d)(ii);




     (h) Indebtedness incurred by General Cable Spain pursuant to the
European Term Loan Documents as long as (i) the aggregate principal
amount of all such Indebtedness at any time outstanding does not exceed
EUR 50.0 million, (ii) the proceeds of such Indebtedness are immediately
applied by General Cable Spain to make a Restricted Payment in an amount
equal to $27,687,748.15 to General Cable Spain Holdings, the proceeds of
which shall be immediately applied by General Cable Spain Holdings to
repay to Holdings the GCC Spain Refinancing Intercompany Debt in an
amount equal to $27,687,748.15, the proceeds of which shall be
immediately advanced by Holdings to Borrower, and the proceeds of which
Borrower shall immediately use to repay the Obligations (without
reduction in Commitments) and (iii) the proceeds of such Indebtedness are
immediately applied by General Cable Spain to repay to Borrower any and
all GCC Spain Intercompany Debt incurred after the Original Closing Date,
the proceeds of which Borrower shall immediately use to repay the
Obligations (without reduction in Commitments);




     (i) the GCC Spain Intercompany Debt as long as (i) the aggregate
principal amount of all GCC Spain Intercompany Debt (other than GCC Spain
Refinancing Intercompany Debt) existing on the Closing Date does not
exceed the Dollar Equivalent of $35.0 million, (ii) the GCC Spain
Refinancing Intercompany Debt does not exceed the Dollar Equivalent of
$27.7 million, (iii) GCC Spain Intercompany Debt incurred by reason of
intercompany advances of Borrower to General Cable Spain after the
Original Closing Date does not exceed the Dollar Equivalent of $1.0 million,
and (iv) in each case, such Indebtedness shall simultaneously be recorded
on General Cable Spain’s, General Cable Spain Holdings’, Borrower’s and
Holdings’ ledgers, as applicable, as an intercompany loan and shall be
evidenced by a promissory note in substantially the form of Exhibit L,
which shall be pledged (and delivered) by Borrower and Holdings as
Collateral pursuant to the Security Agreement;




     (j) Indebtedness for industrial revenue bonds or other similar
governmental or municipal bonds for the deferred purchase price of newly
acquired Property and to finance equipment of Borrower and the Borrowing
Base Guarantors (pursuant to purchase money mortgages or otherwise and
whether owed to the seller or a third party) used in the ordinary course
of business (provided, that such financing is entered into within 180
days of the acquisition of such Property) of Borrower and the Borrowing
Base



107









 






Guarantors which shall not exceed $12 million in the aggregate at
any one time outstanding, and any refinancings of Indebtedness permitted
under this paragraph (h);




     (k) Indebtedness in respect of workers’ compensation claims,
self-insurance obligations, performance bonds, surety appeal or similar
bonds and completion guarantees provided by a Company in the ordinary
course of its business;




     (l) unsecured Contingent Obligations:




     (i) of Holdings in respect of Indebtedness (other than
Indebtedness for borrowed money) of any Foreign Subsidiary to the
extent such Indebtedness is permitted to be incurred by such
Foreign Subsidiary pursuant to paragraph (g) or (h) above and as
long as such Contingent Obligations of Holdings are issued in the
ordinary course business and do not exceed the Dollar Equivalent of
$5.0 million in the aggregate at any time




     (ii) of Holdings or Borrower in respect of lease obligations,
contract obligations or other obligations (other than Indebtedness
for borrowed money) of any other Domestic Loan Party to the extent
not otherwise prohibited hereunder as long as such Contingent
Obligations are issued by Holdings and Borrower in the ordinary
course of their business;




     (iii) of Borrower in respect of Indebtedness for borrowed
money of NextGen as long as such Contingent Obligations do not
exceed, together with all Investments made in NextGen under Section
6.04(n)(ii), $5.0 million in the aggregate at any time;




     (iv) of Holdings in respect of Indebtedness for borrowed money
of Joint Ventures (other than NextGen) as long as such Contingent
Obligations do not exceed, together with all Investments made in
such Joint Ventures under Section 6.04(n)(i), the Dollar Equivalent
of $10 million in the aggregate at any time; or




     (v) of any Foreign Subsidiary in respect of Indebtedness of
any other Foreign Subsidiaries to the extent the primary
Indebtedness of such other Foreign Subsidiary is permitted under
paragraph (g) or (h) above;




     (m) Indebtedness in respect of taxes, assessments or governmental
charges to the extent that payment thereof shall not at the time be
required to be made in accordance with Section 5.05;




     (n) Indebtedness in respect of netting services and overdraft
protections in connection with deposit accounts, in each case in the
ordinary course of business;




     (o) Acquisition Debt Issuance; and




     (p) other unsecured Indebtedness (not of the type covered in
paragraphs (a) – (o) above) of any Company incurred, created, assumed or
permitted to exist after the



108









 






Closing Date not to exceed the Dollar
Equivalent of $1.0 million in the aggregate principal amount at any time
outstanding.



     SECTION 6.02 Liens. Create, incur, assume or permit to exist, directly or
indirectly, any Lien on any Property now owned or hereafter acquired by it or
on any income or revenues or rights in respect of any thereof, except (the
“Permitted Liens”):




     (a) inchoate Liens for taxes, assessments or governmental charges or
levies not yet due and payable or delinquent and Liens for taxes,
assessments or governmental charges or levies, which (i) are being
contested in good faith by appropriate proceedings for which adequate
reserves have been established in accordance with GAAP, which proceedings
(or orders entered in connection with such proceedings) have the effect
of preventing the forfeiture or sale of the Property or assets subject to
any such Lien, or (ii) in the case of any such charge or claim which has
or may become a Lien against any of the Collateral, such Lien and the
contest thereof shall satisfy the Contested Collateral Lien Conditions;




     (b) Liens in respect of Property of any Company imposed by law,
which were incurred in the ordinary course of business and do not secure
Indebtedness for borrowed money, such as carriers’, warehousemen’s,
materialmen’s, landlords’, workmen’s, suppliers’, repairmen’s and
mechanics’ Liens and other similar Liens arising in the ordinary course
of business, and (i) which do not in the aggregate materially detract
from the value of the Property of the Companies, taken as a whole, and do
not materially impair the use thereof in the operation of the business of
the Companies, taken as a whole, (ii) which do not pertain to
Indebtedness that is due and payable or which pertain to Liens that are
being contested in good faith by appropriate proceedings for which
adequate reserves have been established in accordance with GAAP, which
proceedings (or orders entered in connection with such proceedings) have
the effect of preventing the forfeiture or sale of the Property or assets
subject to any such Lien, and (iii) in the case of any such Lien which
has or may become a Lien against any of the Collateral, such Lien and the
contest thereof shall satisfy the Contested Collateral Lien Conditions;




     (c) Liens in existence on the Original Closing Date and set forth on
Schedule 6.02(c); provided, that (i) the aggregate principal amount of
the Indebtedness, if any, secured by such Liens does not increase; and
(ii) such Liens do not encumber any Property other than the Property
subject thereto on the Original Closing Date;




     (d) easements, rights-of-way, restrictions (including zoning
restrictions), covenants, encroachments, protrusions and other similar
charges or encumbrances, and minor title deficiencies on or with respect
to any Real Property, in each case whether now or hereafter in existence,
not (i) securing Indebtedness, (ii) individually or in the aggregate
materially impairing the value or marketability of such Real Property and
(iii) individually or in the aggregate materially interfering with the
conduct of the business of the Companies at such Real Property;




     (e) Liens arising out of judgments or awards not resulting in a
Default and in respect of which such Company shall in good faith be
prosecuting an appeal or



109









 






proceedings for review in respect of which there
shall be secured a subsisting stay of execution pending such appeal or
proceedings; provided, that the aggregate amount of all such judgments or
awards (and any cash and the fair market value of any Property subject to
such Liens) does not exceed $1.0 million at any time outstanding;




     (f) Liens (other than any Lien imposed by ERISA) (i) imposed by law
or deposits made in connection therewith in the ordinary course of
business in connection with workers’ compensation, unemployment insurance
and other types of social security, (ii) incurred in the ordinary course
of business to secure the performance of tenders, statutory obligations
(other than excise taxes), surety, stay, customs and appeal bonds,
statutory bonds, bids, leases, government contracts, trade contracts,
performance and return of money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money), or (iii)
arising by virtue of deposits made in the ordinary course of business to
secure liability for premiums to insurance carriers; provided, that (w)
with respect to clauses (i), (ii) and (iii) hereof, such Liens are for
amounts not yet due and payable or delinquent or, to the extent such
amounts are so due and payable, such amounts are being contested in good
faith by appropriate proceedings for which adequate reserves have been
established in accordance with GAAP, which proceedings for orders entered
in connection with such proceedings have the effect of preventing the
forfeiture or sale of the Property or assets subject to any such Lien,
(x) to the extent such Liens are not imposed by law, such Liens shall in
no event encumber any Property other than cash and Cash Equivalents which
have been deposited with such lienholder or has otherwise been
subordinated to the Liens securing the Obligations hereunder pursuant to
a Landlord Lien Waiver and Access Agreement, (y) in the case of any such
Lien against any of the Collateral, such Lien and the contest thereof
shall satisfy the Contested Collateral Lien Conditions and (z) the
aggregate amount of deposits at any time pursuant to clause (ii) and
(iii) shall not exceed $250,000 in the aggregate;




     (g) Leases or subleases with respect to the assets or properties of
any Company, in each case entered into in the ordinary course of such
Company’s business so long as such Leases are subordinate in all respects
to the Liens granted and evidenced by the Security Documents and do not,
individually or in the aggregate, (i) interfere in
any material respect with the ordinary conduct of the business of
any Company or (ii) materially impair the use (for its intended purposes)
or the value of the Property subject thereto;




     (h) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into by
any Company in the ordinary course of business in accordance with the
past practices of such Company;




     (i) Liens arising pursuant to Purchase Money Obligations or Capital
Lease Obligations incurred pursuant to Section 6.01(f) or Liens arising
pursuant to sale and leaseback transactions to the extent permitted under
Section 6.03; provided, that (i) the Indebtedness secured by any such
Lien (including refinancings thereof) does not exceed 100% of the cost of
the Property being acquired or leased at the time of the incurrence of
such Indebtedness and (ii) any such Liens attach only to the Property
being financed



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pursuant to such Purchase Money Obligations, Capital Lease
Obligations or sale and leaseback transactions and do not encumber any
other Property of any Company;




     (j) bankers’ Liens, rights of setoff and other similar Liens
existing solely with respect to cash and Cash Equivalents on deposit in
one or more accounts maintained by any Company, in each case granted in
the ordinary course of business in favor of the bank or banks with which
such accounts are maintained, securing amounts owing to such bank with
respect to cash management and operating account arrangements, including
those involving pooled accounts and netting arrangements; provided, that
in no case shall any such Liens secure (either directly or indirectly)
the repayment of any Indebtedness;




     (k) Liens on Property of a Person existing at the time such Person
is acquired or merged with or into or consolidated with any Company (and
not created in anticipation or contemplation thereof) so long as such
merger or acquisition is permitted pursuant to Section 6.05; provided,
that such Liens do not extend to Property not subject to such Liens at
the time of acquisition (other than improvements thereon) and are no more
favorable to the lienholders than the existing Lien;




     (l) Liens on Property of Foreign Subsidiaries; provided, that (i)
such Liens do not extend to, or encumber, Property which constitutes
Collateral, and (ii) such Liens extending to the Property of any Foreign
Subsidiary secure only Indebtedness of Foreign Subsidiaries as of the
Original Closing Date or Indebtedness incurred by a Foreign Subsidiary
pursuant to Section 6.01(g);




     (m) Liens granted pursuant to the Security Documents;




     (n) licenses or sublicenses of Intellectual Property granted by any
Company in the ordinary course of business and not interfering in any
material respect with the ordinary conduct of the business of such
Company;




     (o) Liens attaching solely to cash earnest money deposits in
connection with any letter of intent or purchase agreement in connection
with a Permitted Acquisition;




     (p) Liens in favor of customs and revenues authorities which secure
payment of customs duties in connection with the importation of goods to
the extent required by law;




     (q) Liens deemed to exist in connection with set-off rights in the
ordinary course of Borrower’s and its Subsidiaries’ business;




     (r) replacement, extension or renewal of any Lien permitted herein
in the same property previously subject thereto provided the underlying
Indebtedness is permitted to be replaced, extended and renewed under
Section 6.01(b);




     (s) the filing of financing statements solely as a precautionary
measure in connection with operating leases or consignment of goods; and



111









 






     (t) other Liens (not of a type set forth in clauses (a) through (s)
above) incurred in the ordinary course of business of any Company with
respect to obligations (other than Indebtedness) that do not in the
aggregate exceed $1.0 million at any time outstanding;


provided, however, that no Liens (other than Liens permitted under Section
6.02(a)(ii)) shall be permitted to exist, directly or indirectly, on any
Pledged Equity Interests or Pledged Notes (each as defined in the Security
Agreements and Foreign Pledge Agreements).




     SECTION 6.03 Sale and Leaseback Transactions. Enter into any arrangement,
directly or indirectly, with any Person whereby it shall sell or transfer any
Property, real or personal, used or useful in its business, whether now owned
or hereafter acquired, and thereafter rent or lease such Property or other
Property which it intends to use for substantially the same purpose or purposes
as the Property being sold or transferred unless at the time of the proposed
sale and leaseback transaction: (a) no Default then exists or would result
therefrom; (b) the aggregate Fair Market Value of all Property permitted to be
sold and leased back pursuant to this Section 6.03 shall not exceed $10.0
million; (c) Borrower shall have delivered, at least five Business Days prior
thereto, all agreements, documents and instruments pursuant to which the
proposed sale and leaseback is to be effected, all of which shall be on terms
and in form and substance satisfactory to the Administrative Agent and the
Collateral Agent; and (d) Borrower shall have delivered a certificate to the
Administrative Agent and the Collateral Agent certifying that no Default exists
or would result after giving effect to the proposed sale and leaseback,
identifying the Property subject to such sale and leaseback transaction and
that all of the requirements for a Permitted Asset Sale have been satisfied.



     SECTION 6.04 Investments, Loans and Advances. Directly or indirectly,
lend money or credit or make advances to any Person, or purchase or acquire any
stock, obligations or securities of, or any other interest in, or make any
capital contribution to, any other Person, or purchase or own a futures
contract or otherwise become liable for the purchase or sale of currency or
other commodities at a future date in the nature of a futures contract (all of
the foregoing, collectively, “Investments”), except that the following shall be
permitted:




     (a) Investments outstanding on the Original Closing Date and
identified on Schedule 6.04(a);




     (b) the Companies may (i) acquire and hold accounts receivables
owing to any of them if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary terms,
(ii) acquire and hold cash and Cash Equivalents, (iii) endorse negotiable
instruments for collection in the ordinary course of business, (iv) make
lease, utility and other similar deposits in the ordinary course of
business; or (v) make prepayments and deposits to suppliers in the
ordinary course of business;




     (c) any Company may enter into Interest Rate Protection Agreements
to the extent permitted by Section 6.01(c) or may enter into and perform
its obligations under Specified Hedging Agreements entered into in the
ordinary course of business and so long as any such Specified Hedging
Agreement is not speculative in nature and is



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(i)(A) related to income
derived from operations of such Company or otherwise related to purchases
permitted hereunder from suppliers or (B) entered into to protect such
Company against fluctuations in the prices of raw materials used in its
businesses and (ii) permitted by Section 6.01(d);




     (d) (i) Borrower, any Borrowing Base Guarantor, or any Foreign
Subsidiary may make intercompany loans and advances to Borrower or any
other Borrowing Base Guarantor (other than Holdings), (ii) Borrower or
any Borrowing Base Guarantor may make intercompany loans and advances to
any Foreign Subsidiary (other than General Cable Spain) in an amount not
to exceed the Dollar Equivalent of $10.0 million to all Foreign
Subsidiaries (other than General Cable Spain) in the aggregate
outstanding at any time, (iii) Borrower or Holdings may make intercompany
loans or advances to General Cable Spain or General Cable Spain Holdings
giving rise to the GCC Spain Intercompany Debt to the extent permitted in
Section 6.01(i), (iv) Borrower may make intercompany loans and advances
to Marathon Manufacturing Holdings, Inc., a Delaware corporation, MLTC
Company, a Delaware corporation, and General Cable Technologies as long
as such intercompany loans and advances to all such Persons do not exceed
$1.0 million in the aggregate at any time and (v) any Foreign Subsidiary
may make intercompany loans and advances to any other Foreign Subsidiary;
provided, that each loan and advance referenced in clauses (i), (ii),
(iii), (iv) and (v) above shall simultaneously be recorded on Borrower’s,
the applicable Borrowing Base Guarantor’s, or the applicable Foreign
Subsidiary’s ledgers as an intercompany loan and shall be evidenced by a
promissory note in substantially the form of Exhibit L, which, except in
the case of promissory notes evidencing loans or advances made by any
Foreign Subsidiary (other than General Cable Spain), shall be pledged
(and delivered) by Borrower or the applicable Borrowing Base Guarantor
that is the lender of such intercompany loan as Collateral pursuant to
the Security Agreements and Foreign Pledge Agreements and which shall be
subordinated to the Obligations pursuant to such promissory notes;




     (e) Any Company may make loans and advances (including payroll,
travel and entertainment related advances) in the ordinary course of
business to its respective
employees or senior management (other than any loans or advances to
any director or executive officer (or equivalent thereof) that would be
in violation of Section 402 of the Sarbanes-Oxley Act) so long as the
aggregate principal amount thereof made by all Companies at any time
outstanding (determined without regard to any write-downs or write-offs
of such loans and advances) shall not exceed the Dollar Equivalent of $
2.0 million;




     (f) Borrower or Intermediate Holdings may establish Subsidiaries to
the extent permitted by Section 6.12;




     (g) Investments (other than intercompany loans and advances) (i) by
Borrower in any Borrowing Base Guarantor (but with respect to Holdings,
only to the extent such Investments in Holdings are permitted under 6.07,
or with respect to Intermediate Holdings, only to the extent such
Investments in Intermediate Holdings are permitted under Section 6.06(d)
or 6.07), (ii) by any Company (other than Borrower or



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any Borrowing Base
Guarantor) in Borrower or any Borrowing Base Guarantor and (iii) by any
Foreign Subsidiary in any other Company;




     (h) Investments in securities of trade creditors or customers in the
ordinary course of business and consistent with such Company’s past
practices that are received in settlement of bona fide disputes or
pursuant to any plan of reorganization or liquidation or similar
arrangement upon the bankruptcy or insolvency of such trade creditors or
customers;




     (i) Investments made by Borrower or any Subsidiary as a result of
consideration received in connection with an Asset Sale made in
compliance with Section 6.05;




     (j) earnest money required and any Equity Issuance made by Holdings
in connection with and to the extent permitted by Permitted Acquisitions;




     (k) Loan Parties may hold Investments to the extent such Investments
reflect an increase in the value of Investments otherwise permitted under
this Section 6.04 hereof;




     (l) Investments in (i) deposit accounts opened in the ordinary
course of business provided, that such deposit accounts are subject to
Deposit Account Control Agreements and (ii) securities accounts opened in
the ordinary course of business provided, that such securities accounts
are subject to Securities Account Control Agreements;




     (m) Borrower may make intercompany loans and advances to Holdings
solely for the purpose of:




     (i) Holdings’ repurchasing, so long as all proceeds thereof
are in fact promptly used by Holdings to repurchase, outstanding shares of its common stock following the death, disability,
retirement or termination of employment of employees, officers or
directors of any Company as long as (A) such loans and
advances in the aggregate shall not exceed $500,000 in any
fiscal year of Holdings less any Restricted Payments made pursuant
to Section 6.06(d)(i) in such fiscal year and (B) no Event of
Default has occurred and is continuing and no Default would result
after giving effect to any such Restricted Payment;




     (ii) Holdings’ paying, so long as all proceeds thereof are in
fact promptly used by Holdings to pay, its income tax and income
taxes pursuant to the Tax Sharing Agreement, in accordance with
Section 6.07(e), in each case when and as due;




     (iii) Holdings’ paying, so long as all proceeds thereof are in
fact promptly used by Holdings to pay scheduled semi-annual
interest on the Qualified Senior Notes;



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     (iv) Holdings’ making, so long as all proceeds thereof are in
fact promptly used by Holdings to make, Restricted Payments with
respect to Convertible Preferred Stock elected to be made by
Holdings in cash for the current quarter dividend period
(commencing with the first such quarterly dividend period ending
February 24, 2004);




provided, that each loan and advance referenced in clauses (i),
(ii), (iii) and (iv) above shall simultaneously be recorded on
Borrower’s ledger as an intercompany loan and shall be evidenced by
a promissory note in substantially the form of Exhibit L, which
shall be pledged (and delivered) by Borrower as Collateral pursuant
to the Security Agreements and which shall be subordinated to the
Obligations pursuant to such promissory notes;




     (n) additional Investments after the Original Closing Date in any
Joint Venture as long as the aggregate outstanding amount of additional
Investments in all Joint Ventures does not exceed (i) with respect to all
Joint Ventures other than NextGen, together with all Contingent
Obligations issued in respect of such Joint Ventures under Section
6.01(l)(iv) the Dollar Equivalent of $10.0 million in the aggregate or
(ii) with respect to NextGen, together with all Contingent Obligations
issued in respect of NextGen under Section 6.01(l)(iii), the Dollar
Equivalent of $5.0 million in the aggregate; and




     (o) Loan Parties may capitalize or forgive any Indebtedness owed to
it by other Loan Parties (except that Borrower shall not forgive
intercompany loans made to any other Loan Party).



     SECTION 6.05 Mergers, Consolidations, Sales of Assets and Acquisitions.
Wind up, liquidate or dissolve its affairs or enter into any transaction of
merger or consolidation, enter into any Asset Sale, or otherwise convey, sell,
lease or otherwise dispose of (or agree to do any of the foregoing at any
future time) all or any part of its Property or assets, or purchase or
otherwise acquire (in one or a series of related transactions) all or any part
of the Property, Equity Interests, or assets of any Person (or agree to do any
of the foregoing at any future time), except that:




     (a) Capital Expenditures by Borrower and the Subsidiaries shall be
permitted to the extent permitted by Section 6.08(b);




     (b) (i) purchases or other acquisitions of inventory, materials,
equipment and intangible assets in the ordinary course of business shall
be permitted, (ii) subject to Section 2.10(c), Asset Sales of used, worn
out, obsolete or surplus Property by any Company in the ordinary course
of business and the abandonment or other Asset Sale of Intellectual
Property that is, in the reasonable judgment of Borrower, no longer
economically practicable to maintain or useful in the conduct of the
business of the Companies taken as a whole shall be permitted, (iii) sale
of Equipment or Real Property, as applicable, or any portion thereof, due
to the termination of operations at (A) 37 Cushman St., Taunton MA 02780,
(B) 440 East 8th Street, Marion, IN 46953 and (C) 75 Canal St., South
Hadley, MA 01075, in each case, on terms and pursuant to



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documentation
reasonably acceptable to the Administrative Agent and the Collateral
Agent, (iv) Permitted Asset Sales by all Domestic Loan Parties
aggregating no more than $10.0 million less any prepayments made pursuant
to the definition of Permitted Fixed Asset Exchange shall be permitted,
(v) Permitted Asset Sales aggregating no more than $25.0 million less any
prepayments made pursuant to the definition of Permitted Fixed Asset
Exchange shall be permitted by a Foreign Subsidiary after the Closing
Date and (vi) Permitted Fixed Asset Exchanges shall be permitted;




     (c) Investments in connection with any such transaction may be made
to the extent permitted by Section 6.04;




     (d) Holdings and its Subsidiaries may sell Cash Equivalents and use
cash for purposes that are not otherwise prohibited by the terms of this
Agreement in the ordinary course of business;




     (e) Borrower and the Subsidiaries may lease (as lessee or lessor)
real or personal Property and may guaranty such lease, in each case, in
the ordinary course of business and in accordance with the applicable
Security Documents;




     (f) the Transactions shall be permitted as contemplated by the
Transaction Documents;




     (g) Borrower, any Borrowing Base Guarantor (other than Holdings) or,
in the case of any Permitted Non-Loan Funded Acquisition, any Foreign
Subsidiary may consummate Permitted Acquisitions;




     (h) any Loan Party (other than Holdings, Intermediate Holdings or
Borrower) may transfer Property or lease to or acquire or lease Property
from any Loan Party or any Loan Party (other than Holdings, Borrower and
Intermediary Holdings) may be merged into another Domestic or Canadian
Loan Party as long as Borrower, Holdings or Intermediary Holdings is the
surviving corporation of such merger; provided, that the Lien on and
security interest in such Property granted or to be granted in favor of
the Collateral Agent under the Security Documents shall be maintained or
created in accordance with the provisions of Section 5.11 or 5.12, as
applicable;




     (i) any Subsidiary (other than Borrower or any Borrowing Base
Guarantor) may dissolve, liquidate or wind up its affairs at any time;
provided, that such dissolution, liquidation or winding up, as
applicable, could not reasonably be expected to have a Material Adverse
Effect;




     (j) discounts or forgiveness of account receivables in the ordinary
course of business or in connection with collection or compromise thereof
shall be permitted provided the account debtor is not an Affiliate; and




     (k) Permitted Liens (to the extent constituting a conveyance of
Property) shall be permitted.



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To the extent the Supermajority Lenders waive the provisions of this Section
6.05 with respect to the sale of any Collateral, or any Collateral is sold as
permitted by this Section 6.05, such Collateral (unless sold to a Company)
shall be sold free and clear of the Liens created by the Security Documents,
and the Administrative Agent and the Collateral Agent shall take all actions
deemed appropriate in order to effect the foregoing.




     SECTION 6.06 Restricted Payments. Make any Restricted Payment, except
that:




     (a) any Subsidiary that is a Loan Party (other than Borrower and
Intermediate Holdings) (i) may make Restricted Payments to Borrower or
any Domestic Subsidiary or Canadian Subsidiary which is a Wholly Owned
Subsidiary and (ii) if such Domestic Subsidiary or Canadian Subsidiary is
not a Wholly Owned Subsidiary, may make Restricted Payments to its
shareholders generally so long as Borrower or its Subsidiary which owns
the Equity Interest or interests in the Subsidiary making such Restricted
Payments receives at least its proportionate share thereof (based upon
its relative holdings of Equity Interests in the Subsidiary making such
Restricted Payments and taking into account the relative preferences, if
any, of the various classes of Equity Interests in such Subsidiary);




     (b) any Subsidiary that is not a Loan Party (i) may make Restricted
Payments to a Wholly Owned Subsidiary that is not a Loan Party and (ii)
if such Subsidiary is not a Wholly Owned Subsidiary, may make Restricted
Payments to its shareholders generally so long as Subsidiary which owns
the Equity Interest or interests in the Subsidiary making such Restricted
Payments receives at least its proportionate share thereof (based upon
its relative holdings of Equity Interests in the Subsidiary making such
Restricted Payments and taking into account the relative preferences, if
any, of the various classes of Equity Interests in such Subsidiary);




     (c) any Subsidiary that is not a Loan Party may make Restricted
Payments to a Loan Party as long as (i) such Loan Party is the most
direct holder of Equity Interest in such Subsidiary and (ii) proceeds
thereof, through one or more Restricted Payments of the Persons that are
the most direct holders of Equity Interest in the Person making the
Restricted Payments, are received by Borrower or Holdings;




     (d) Borrower may make cash Restricted Payments to Intermediate
Holdings, provided, that Intermediate Holdings contemporaneously uses the
proceeds of such Restricted Payments to make Restricted Payments in the
same amount to Holdings solely for the purpose of:




     (i) Holdings’ repurchasing, so long as all proceeds thereof
are in fact promptly used by Holdings to repurchase, outstanding shares of its common stock following the death, disability,
retirement or termination of employment of employees, officers or
directors of any Company as long as (A) such Restricted Payments in
the aggregate shall not exceed, together with the intercompany
loans and advances under Section 6.04(m)(i), $500,000 in any fiscal
year of Holdings and (B) no Event of Default has occurred and is
continuing and no Default would result after giving effect to any
such Restricted Payment;



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     (iii) Holdings’ paying, so long as all proceeds thereof are in
fact promptly used by Holdings to pay, its income tax and income
taxes pursuant to the Tax Sharing Agreement, in accordance with
Section 6.07(e), in each case when and as due;




     (iv) Holdings’ paying, so long as all proceeds thereof are in
fact promptly used by Holdings to pay scheduled semi-annual
interest on the Qualified Senior Notes;




     (v) Holdings’ making, so long as all proceeds thereof are in
fact promptly used by Holdings to make, Restricted Payments with
respect to Convertible Preferred Stock elected to be made by
Holdings in cash for the current quarter dividend period
(commencing with the first such quarterly dividend period ending
February 24, 2004);



     (e) to the extent any payment under any Intercompany Agreement constitutes
a Restricted Payment, Borrower, Holdings or other Guarantor, as applicable,
party to such Intercompany Agreement may make such Restricted Payment; and



     (f) Borrower may make cash Restricted Payments to Intermediate Holdings
other than those described in clause (d) above, provided, that Intermediate
Holdings uses the proceeds of such Restricted Payments to make Restricted
Payments in the same amount to Holdings as long as (A) the aggregate amount of
such Restricted Payments received by Holdings does not exceed $2.0 million in
any fiscal year of Holdings and (B) Borrower delivers written notice thereof to
Administrative Agent and Collateral Agent prior to making each such Restricted
Payment.



     SECTION 6.07 Transactions with Affiliates. Enter into, directly or
indirectly, any transaction or series of related transactions, whether or not
in the ordinary course of business, with any Affiliate of any Company (other
than between or among Borrower and its Wholly Owned Subsidiaries), other than
in the ordinary course of business and on terms and conditions substantially as
favorable to such Company as would reasonably be obtained by such Company at
that time in a comparable arm’s-length transaction with a Person other than an
Affiliate, except that:




     (a) Restricted Payments may be made to the extent provided in
Section 6.06;




     (b) loans may be made and other transactions may be entered into
between and among any Company and its Affiliates to the extent permitted
by Sections 6.01 and 6.04;




     (c) customary fees may be paid to non-officer directors of Holdings
and customary indemnities may be provided to all directors of Holdings;




     (d) Borrower may pay management fees to Holdings from time to time
in an amount not in excess of Holdings’ compensation expenses for its
employees;




     (e) Borrower or any Subsidiary may make payments to Holdings
pursuant to a Tax Sharing Agreement in an amount not in excess of the
federal and state (in such states



118









 






that permit consolidated or combined
tax returns) income tax liability that Borrower and the Subsidiaries
would have been liable for if any of the Companies had filed their taxes
on a stand-alone basis; provided, that such payments shall be made by
Holdings no earlier than five days prior to the date on which Holdings is
required to make its payments to the Internal Revenue Service, as
applicable;




     (f) Borrower, Holdings and other Guarantors party to the
Intercompany Agreement may make payments under the Intercompany
Agreements; and




     (g) the Transactions may be effected.



     SECTION 6.08 Financial Covenants.



     (a) Minimum Fixed Charge Coverage Ratio. Permit as of the end of each
fiscal quarter ending during the period set forth in the table below the
Consolidated Fixed Charge Coverage Ratio for the Test Period then ended to be
less than the ratio set forth opposite such period in the table below:



	 	 	 
	Period
	 	Coverage Ratio

	From January 1, 2004 through
December 31, 2004

	 	1.00 to 1.00
	From January 1, 2005 through
December 31, 2005

	 	1.15 to 1.00
	From January 1, 2006 through
Maturity Date and thereafter

	 	1.25 to 1.00







     (b) Limitation on Capital Expenditures. Permit the aggregate amount of
Capital Expenditures made in any test period set forth below, to exceed the
amount set forth opposite such period below:



	 	 	 
	 	 	Amount
	Test Period
	 	(in millions)

	From October 1, 2003 through
December 31, 2003

	 	$  7.5
	From January 1, 2004 through
Maturity Date and thereafter

	 	$50.0 per fiscal year






provided, however, that (x) if the aggregate amount of Capital Expenditures
described in this clause (b) for any fiscal year shall be less than the amount
permitted in this clause (b) for such fiscal year (before giving effect to any
carryover), then the shortfall may be added to the amount of Capital
Expenditures permitted in this clause (b) for the immediately succeeding (but
not any


119









 






 other) fiscal year if the amount expended in such fiscal year would not
exceed 125% of the amount permitted for such fiscal year (before any carryover)
and (y) in determining whether any amount is available for carryover, the
amount expended in any fiscal year shall first be deemed to be from the amount
allocated to such year before any carryover.




     (c) Minimum Excess Availability. Except for Overadvances outstanding
under Section 10.10, Borrower shall, at all times, cause the Excess
Availability to exceed $15.0 million.



     SECTION 6.09 Limitation on Modifications of Indebtedness; Modifications of
Certificate of Incorporation, or Other Constitutive Documents, By-laws and
Certain Other Agreements, etc. (i) Amend or modify, or permit the amendment
or modification of, any provision of existing Indebtedness or of any agreement
(including any purchase agreement, indenture, loan agreement or security
agreement) relating thereto other than any amendments or modifications to
Indebtedness which do not in any way materially adversely affect the interests
of the Lenders and are otherwise permitted under Section 6.01(b); (ii) except
as required by Sections 4.08 and 4.11(e) of the Qualified Senior Note
Indenture, make (or give any notice in respect thereof) any voluntary or
optional payment or prepayment on or redemption or acquisition for value of, or
any prepayment or redemption as a result of any asset sale, change of control
or similar event of, any indebtedness outstanding under the Qualified Senior
Notes; (iii) amend or modify, or permit the amendment or modification of, any
provision of any Qualified Senior Notes or any agreement (including any
Qualified Senior Note Document) relating thereto other than amendments or
modifications which do not in any way materially adversely affect the interests
of the Lenders and which are effected to make technical corrections to the
respective documentation; (iv) amend or modify, or permit the amendment or
modification of, any other Transaction Document, in each case except for
amendments or modifications which are not in any way adverse in any material
respect to the interests of the Lenders; or (v) amend, modify or change its
articles of incorporation or other constitutive documents (including by the
filing or modification of any certificate of designation) or by-laws, or any
agreement entered into by it, with respect to its capital stock (including any
shareholders’ agreement), or enter into any new agreement with respect to its
capital stock, other than any amendments, modifications, agreements or changes
pursuant to this clause (v) or any such new agreements pursuant to this clause
(v) which do not in
any way materially adversely affect in any material respect the interests
of the Lenders; and provided, that Holdings may issue such capital stock as is
not prohibited by Section 6.11 or any other provision of this Agreement and may
amend articles of incorporation or other constitutive documents to authorize
any such capital stock.



     SECTION 6.10 Limitation on Certain Restrictions on Subsidiaries. Directly
or indirectly, create or otherwise cause or suffer to exist or become effective
any encumbrance or restriction on the ability of any Subsidiary to (a) pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by Borrower or any other
Subsidiary, or pay any Indebtedness owed to Borrower or any other Subsidiary
(except (i) solely with respect to restrictions on General Cable Spain’s
ability to pay or make dividends as may be set forth in the European Term Loan
Documents and (ii) such other restrictions as are approved in writing and in
advance by the Administrative Agent), (b) make loans or advances to Borrower or
any of Borrower’s other Subsidiaries or (c) transfer any of its properties to
Borrower or any of Borrower’s other Subsidiaries, except for such encumbrances
or restrictions existing under or by reason of (i) applicable law; (ii) this
Agreement and the other Loan



120









 







Documents; (iii) the Qualified Senior Note
Documents; (iv) customary provisions restricting subletting or assignment of
any lease governing a leasehold interest of Borrower or any other Subsidiary;
(v) customary provisions restricting assignment of any agreement entered into
by Borrower or any other Subsidiary in the ordinary course of business; (vi)
any holder of a Lien permitted by Section 6.02 may restrict the transfer of the
asset or assets subject thereto; (vii) restrictions which are not more
restrictive than those contained in this Agreement contained in any documents
governing any Indebtedness incurred after the Original Closing Date in
accordance with the provisions of this Agreement or the Prior Credit Agreement;
(viii) customary restrictions and conditions contained in any agreement
relating to the sale of any Property permitted under Section 6.05 pending the
consummation of such sale; (ix) any agreement in effect at the time such
Subsidiary is a Subsidiary, so long as such agreement was not entered into in
contemplation of such Person becoming a Subsidiary; or (x) in the case of any
joint venture which is not a Loan Party in respect of any matters referred to
in clauses (b) and (c) above, restrictions in such Person’s organizational or
governing documents or pursuant to any joint venture agreement or stockholders
agreements solely to the extent of the Equity Interests of or assets held in
the subject joint venture or other entity.



     SECTION 6.11 Limitation on Issuance of Capital Stock. (a) With respect
to Holdings, issue after the Original Closing Date any Equity Interest that is
not Qualified Capital Stock.



     (b) Neither Intermediate Holdings nor Borrower will, and will not permit
any Subsidiary, to issue any Equity Interest of any Subsidiary (including by
way of sales of treasury stock) or any options or warrants to purchase, or
securities convertible into, Equity Interest of any Subsidiary, except (i) for
stock splits, stock dividends and additional Equity Interests issuances which
do not decrease the percentage ownership of Borrower or any Subsidiaries in any
class of the Equity Interest of such Subsidiary; (ii) Subsidiaries of Borrower
formed after the Closing
Date pursuant to Section 6.12 may issue Equity Interests to Borrower or
the Subsidiary which is to own such stock; and (iii) Borrower may issue common
stock that is Qualified Capital Stock to Holdings. All Equity Interests issued
in accordance with this Section 6.11(b) shall, to the extent required by
Section 5.12 or the Security Agreements and Foreign Pledge Agreements, be
delivered to the Collateral Agent for pledge pursuant to the Security
Agreements and Foreign Pledge Agreements.



     SECTION 6.12 Limitation on Creation of Subsidiaries. Establish, create or
acquire any additional Subsidiaries without the prior written consent of the
Required Lenders; provided, that (A) Intermediate Holdings may establish or
create one or more Foreign Subsidiaries to accomplish Permitted Non-Loan Funded
Acquisitions as long as, if such new Foreign Subsidiary is a first-tier Foreign
Subsidiary (a) 100% of the Equity Interest of any such Foreign Subsidiary is
upon the creation or establishment of any such new Subsidiary (or if such
pledge would have a material adverse tax impact on Intermediate Holdings
(determined at the reasonable judgment of the Administrative Agent after
consultation with Borrower), 65% of the Equity Interest is) pledged and
delivered to the Collateral Agent for the benefit of the Secured Parties under
the Security Agreements and Foreign Pledge Agreements or (B) Borrower may
establish or create one or more Wholly Owned Subsidiaries of Borrower or one of
its Wholly Owned Subsidiaries without such consent so long as (a) 100% of the
Equity Interest of any new Subsidiary is upon the creation or establishment of
any such new Subsidiary (or, in the case of Foreign Subsidiaries



121









 







if such pledge
would have a material adverse tax impact on Borrower (determined at the
reasonable judgment of the Administrative Agent after consultation with
Borrower), 65% of such Equity Interest is) pledged and delivered to the
Collateral Agent for the benefit of the Secured Parties under the Security
Agreements and Foreign Pledge Agreements (other than fund non-Wholly Owned
Subsidiaries acquired in connection with a Permitted Acquisition or pursuant to
Investments pursuant to Section 6.04(h)); (b) upon the creation or
establishment of any such new Wholly Owned Subsidiary, such Subsidiary becomes
a party to the applicable Security Documents and shall become a Guarantor
hereunder and execute a Joinder Agreement and the other Loan Documents all in
accordance with Section 5.11(b) above and (c) such new Subsidiary is a Domestic
Subsidiary or a Canadian Subsidiary.



     SECTION 6.13 Business. (a) With respect to Holdings, engage in any
business activities or have any assets or liabilities, other than (i) its
ownership of the Equity Interests of Borrower and other direct and indirect
Subsidiaries of Holdings and its performance of administrative and managerial
services on behalf of such Companies, (ii) obligations under the Transactions
Documents, and (iii) activities and assets incidental to the foregoing clauses
(i) and (ii).



     (b) With respect to Borrower and the Subsidiaries of Holdings, engage
(directly or indirectly) in any business other than those businesses in which
Borrower and its Subsidiaries are engaged on the Original Closing Date (or
which are substantially related thereto or are reasonable extensions thereof).



     SECTION 6.14 Limitation on Accounting Changes. Make or permit, any change
in accounting policies or reporting practices, without the consent of the
Required Lenders, which consent shall not be unreasonably withheld, except
changes that, in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect or are required by GAAP.



     SECTION 6.15 Fiscal Year. Change its fiscal year end to a date other than
December 31.



     SECTION 6.16 No Negative Pledges. Directly or indirectly enter into or
assume any agreement (other than this Agreement and the Qualified Senior Note
Documents) prohibiting the creation or assumption of any Lien upon its
properties or assets, whether now owned or hereafter acquired, except for
Property subject to purchase money security interests, operating leases and
capital leases and except for the prohibition of the creation of a Lien on the
Equity Interests or Properties of General Cable Spain as may be set forth in
the European Term Loan Documents.



     SECTION 6.17 Lease Obligations. Create, incur, assume or suffer to exist
any obligations as lessee for the rental or hire of real or personal Property
of any kind under leases or agreements to lease having an original term of one
year or more that would cause the direct and contingent liabilities of the
Borrower and its Subsidiaries, on a consolidated basis, in respect of all such
obligations to exceed $15.0 million payable in any period of 12 consecutive
months.



     SECTION 6.18 Upstream Restrictions.



     Directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any
Subsidiary to (a) pay any dividend or make any



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other distributions on its
capital stock or any other Equity Interest (except (i) solely with respect to
restrictions on General Cable Spain’s ability to pay or make dividends as may
be set forth in the European Term Loan Documents and (ii) such restrictions as
are approved in writing and in advance by the Administrative Agent) or (b) make
or repay any loans or advances to any parent of any Subsidiary, or (c) transfer
assets from any Subsidiary to its parent other than restrictions on transfers
of Equipment or Real Property that do not represent more than 5% of the
consolidated assets of the Holdings and its Subsidiaries.



     SECTION 6.19 Holdings Companies; Inactive Subsidiaries. (a) Except for
the ownership interest in Real Property set forth in Schedule 6.18 (and
Indebtedness evidenced by Qualified Senior Notes), (i) permit any Holding
Company to engage in any trade or business other than providing administrative
and managerial services on behalf of the Companies      , (ii) own any assets
(other than Equity Interests and Indebtedness, including intercompany
Indebtedness, which were pledged to the Collateral Agent on the Original
Closing Date) or (iii) incur any liability (other than for the Obligations,
intercompany Indebtedness and the Indebtedness evidenced by Qualified Senior Notes) in an aggregate
amount that exceeds $25,000.



     (b) Cause or permit any Domestic or Canadian Inactive Subsidiary to (i)
own any assets with an aggregate book value in excess of $25,000 (or, in the
case of General Cable Canada, Limited, an Ontario corporation, an aggregate
book value in excess of $25,000 plus the aggregate book value of its assets as
of the Original Closing Date) other than Indebtedness, including intercompany
Indebtedness, and Equity Interests pledged to the Collateral Agent on the
Original Closing Date, (ii) incur any liability (other than for the
Obligations, intercompany Indebtedness and the Indebtedness evidenced by the
Qualified Senior Notes) in an aggregate amount that exceeds $25,000 or (iii)
engage in any trade or business.



     SECTION 6.20 Material Agreements. No Company shall, without the prior
written consent of the Administrative Agent and the Collateral Agent, in their
reasonable collective credit judgments, change or amend the terms of any
Intercompany Agreement; and there shall not have occurred the termination of,
or the receipt by any Loan Party of notice of the termination of, or the
occurrence of any event or condition which would, with the passage of time or
the giving of notice or both, constitute an event of default under or permit
the termination of, any one or more of the Intercompany Agreements, which
occurrence, unless otherwise determined by the Administrative Agent in its
reasonable judgment, shall constitute an Event of Default hereunder.



ARTICLE VII.




GUARANTEE




     SECTION 7.01 The Guarantee. The Guarantors (other than General Cable
Canada, which has contemporaneously herewith executed and delivered the
Canadian Guaranty and other than Foreign Guarantors, which have
contemporaneously herewith executed and delivered Foreign Guaranties) hereby
jointly and severally affirm, acknowledge and ratify the Guarantees under the
Prior Credit Agreement and guarantee as a primary obligor and not as a surety
to each Secured Party and their respective successors and assigns the prompt
payment in full when due



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(whether at stated maturity, by acceleration or
otherwise) of the principal of and interest (including any interest, fees,
costs or charges that would accrue but for the provisions of the Title 11 of
the United States Code after any bankruptcy or insolvency petition under Title
11 of the United States Code) on the Loans made by the Lenders to, and the
Notes held by each Lender of, Borrower, and all other Obligations from time to
time owing to the Secured Parties by any Loan Party under any Loan Document
(including, without limitation, any Specified Hedging Agreement), in each case
strictly in accordance with the terms thereof (such obligations being herein
collectively called the “Guaranteed Obligations”). The Guarantors hereby
jointly and severally agree that if Borrower or other Guarantor(s) shall fail
to pay in full when due (whether at stated maturity, by acceleration or
otherwise) any of the Guaranteed Obligations, the Guarantors will promptly pay
the same, without any demand or notice whatsoever, and that in the case of
any extension of time of payment or renewal of any of the Guaranteed
Obligations, the same will be promptly paid in full when due (whether at
extended maturity, by acceleration or otherwise) in accordance with the terms
of such extension or renewal.



     SECTION 7.02 Obligations Unconditional. The obligations of the Guarantors
under Section 7.01 and under Section 7.01 of the Prior Credit Agreement shall
constitute a guaranty of payment and are absolute, irrevocable and
unconditional, joint and several, irrespective of the value, genuineness,
validity, regularity or enforceability of the Guaranteed Obligations of
Borrower under this Agreement, the Notes, if any, or any other agreement or
instrument referred to herein or therein, or any substitution, release or
exchange of any other guarantee of or security for any of the Guaranteed
Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or Guarantor
(except for payment in full). Without limiting the generality of the
foregoing, it is agreed that the occurrence of any one or more of the following
shall not alter or impair the liability of the Guarantors hereunder which shall
remain absolute, irrevocable and unconditional under any and all circumstances
as described above:




     (a) the genuineness, validity, regularity, enforceability or any
future amendment of, or change in, this Agreement, any other Loan
Document or any other agreement, document or instrument to which Borrower
is or may become a party;




     (b) the absence of any action to enforce this Agreement or any other
Loan Document or the waiver or consent by Administrative Agent and
Lenders with respect to any of the provisions thereof;




     (c) the existence, value or condition of, or failure to perfect its
Lien against, any security for the Obligations or any action, or the
absence of any action, by Administrative Agent and Lenders in respect
thereof (including the release of any such security);




     (d) the insolvency of Borrower or any other Guarantor;




     (e) at any time or from time to time, without notice to the
Guarantors, the time for any performance of or compliance with any of the
Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;



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     (f) any of the acts mentioned in any of the provisions of this
Agreement or the Notes, if any, or any other agreement or instrument
referred to herein or therein shall be done or omitted;




     (g) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be amended in any
respect, or any right under the Loan Documents or any other agreement or
instrument referred to herein or therein shall be amended or waived in
any respect or any other guarantee of any of the Guaranteed
Obligations or any security therefor shall be released or exchanged
in whole or in part or otherwise dealt with;




     (h) any lien or security interest granted to, or in favor of,
Issuing Bank or any Lender or Agent as security for any of the Guaranteed
Obligations shall fail to be perfected;




     (i) the release of Borrower or any other Guarantor; or




     (j) any other action or circumstances that might otherwise
constitute a legal or equitable discharge or defense of a surety or
guarantor (other than indefeasible payment in full in cash of all
Obligations and the termination of all Commitments).



     The Guarantors hereby expressly waive diligence, presentment, demand of
payment, protest and all notices whatsoever, and any requirement that any Loan
Party thereof exhaust any right, power or remedy or proceed against Borrower
under this Agreement or the Notes, if any, or any other agreement or instrument
referred to herein or therein, or against any other Person under any other
guarantee of, or security for, any of the Guaranteed Obligations. The
Guarantors waive any and all notice of the creation, renewal, extension,
waiver, termination or accrual of any of the Guaranteed Obligations and notice
of or proof of reliance by any Secured Party upon this Guarantee or acceptance
of this Guarantee, and the Guaranteed Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred in reliance
upon this Guarantee, and all dealings between Borrower and the Secured Parties
shall likewise be conclusively presumed to have been had or consummated in
reliance upon this Guarantee. This Guarantee shall be construed as a
continuing, absolute, irrevocable and unconditional guarantee of payment
without regard to any right of offset with respect to the Guaranteed
Obligations at any time or from time to time held by Secured Parties, and the
obligations and liabilities of the Guarantors hereunder shall not be
conditioned or contingent upon the pursuit by the Secured Parties or any other
Person at any time of any right or remedy against Borrower or against any other
Person which may be or become liable in respect of all or any part of the
Guaranteed Obligations or against any collateral security or guarantee therefor
or right of offset with respect thereto. This Guarantee shall remain in full
force and effect and be binding in accordance with and to the extent of its
terms upon the Guarantors and the successors and assigns thereof, and shall
inure to the benefit of the Lenders, and their respective successors and
assigns, notwithstanding that from time to time during the term of this
Agreement there may be no Guaranteed Obligations outstanding.



     SECTION 7.03 Reinstatement. The obligations of the Guarantors under this
Article VII shall be automatically reinstated if and to the extent that for any
reason any payment by or on



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behalf of Borrower or other Loan Party in respect
of the Guaranteed Obligations is rescinded or must be otherwise restored by any
holder of any of the Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise. The Guarantors
jointly and severally agree that they will indemnify each Secured Party on
demand for all reasonable costs and expenses (including reasonable fees of
counsel) incurred by such Secured Party in connection with such rescission or
restoration, including any such costs and expenses incurred in defending
against any claim alleging that such payment constituted a preference,
fraudulent transfer or similar payment under any bankruptcy, insolvency or
similar law, other than any costs or expenses resulting from the bad faith or
willful misconduct of such Secured Party.



     SECTION 7.04 Subrogation; Subordination. Each Guarantor hereby agrees
that until the indefeasible payment and satisfaction in full in cash of all
Guaranteed Obligations and the expiration and termination of the Commitments of
the Lenders under this Agreement it shall not exercise any right or remedy
arising by reason of any performance by it of its guarantee in Section 7.01,
whether by subrogation or otherwise, against Borrower or any other Guarantor of
any of the Guaranteed Obligations or any security for any of the Guaranteed
Obligations. The payment of any amounts due with respect to any Indebtedness
of Borrower or any other Guarantor now or hereafter owing to any Guarantor or
Borrower by reason of any payment by such Guarantor under the Guarantee in this
Article VII is hereby subordinated to the prior indefeasible payment in full in
cash of the Guaranteed Obligations. In addition, any Indebtedness of the
Guarantors now or hereafter held by any Guarantor is hereby subordinated in
right of payment in full in cash to the Guaranteed Obligations. Each Guarantor
agrees that it will not demand, sue for or otherwise attempt to collect any
such Indebtedness of Borrower to such Guarantor until the Obligations shall
have been indefeasibly paid in full in cash. If, notwithstanding the foregoing
sentence, any Guarantor shall prior to the indefeasible payment in full in cash
of the Guaranteed Obligations collect, enforce or receive any amounts in
respect of such Indebtedness, such amounts shall be collected, enforced and
received by such Guarantor as trustee for the Secured Parties and be paid over
to Administrative Agent on account of the Guaranteed Obligations without
affecting in any manner the liability of such Guarantor under the other
provisions of the guaranty contained herein.



     SECTION 7.05 Remedies. The Guarantors jointly and severally agree that,
as between the Guarantors and the Lenders, the obligations of Borrower under
this Agreement and the Notes, if any, may be declared to be forthwith due and
payable as provided in Article XI (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Article XI)
for purposes of Section 7.01, notwithstanding any stay, injunction or other
prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against Borrower and that, in the event of
such declaration (or such obligations being deemed to have become automatically
due and payable), such obligations (whether or not due and payable by Borrower)
shall forthwith become due and payable by the Guarantors for purposes of
Section 7.01.



     SECTION 7.06 Instrument for the Payment of Money. Each Guarantor hereby
acknowledges that the guarantee in this Article VII and under Article VII of
the Prior Credit Agreement constitutes an instrument for the payment of money,
and consents and agrees that any Lender or Agent, at its sole option, in the
event of a dispute by such Guarantor in the payment of



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any moneys due
hereunder, shall have the right to bring a motion-action under New York CPLR
Section 3213.



     SECTION 7.07 Continuing Guarantee. The guarantee in this Article VII and
under Article VII of the Prior Credit Agreement is a continuing guarantee of
payment, and shall apply to all Guaranteed Obligations whenever arising.



     SECTION 7.08 General Limitation on Guarantee Obligations. In any action
or proceeding involving any state corporate law, or any state, federal or
foreign bankruptcy, insolvency, reorganization or other law affecting the
rights of creditors generally, if the obligations of any Guarantor under
Section 7.01 and under Section 7.01 of the Prior Credit Agreement would
otherwise be held or determined to be void, voidable, invalid or unenforceable,
or subordinated to the claims of any other creditors, on account of the amount
of its liability under Section 7.01 and under Section 7.01 of the Prior Credit
Agreement, then, notwithstanding any other provision to the contrary, the
amount of such liability shall, without any further action by such Guarantor,
any Loan Party or any other Person, be automatically limited and reduced to the
highest amount that is valid and enforceable and not subordinated to the claims
of other creditors as determined in such action or proceeding.



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ARTICLE VIII.




EVENTS OF DEFAULT




     In case of the happening of any of the following events (“Events of
Default”):




     (a) default shall be made in the payment of any principal of any
Loan or the reimbursement with respect to any LC Disbursement when and as
the same shall become due and payable, whether at the due date thereof or
at a date fixed for prepayment thereof or by acceleration thereof or
otherwise;




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




     (c) any representation or warranty made or deemed made in or in
connection with any Loan Document or the borrowings or issuances of
Letters of Credit hereunder, or any representation, warranty, statement
or information contained in any report, certificate, financial statement
or other instrument furnished in connection with or pursuant to any Loan
Document, shall prove to have been false or misleading in any material
respect when so made, deemed made or furnished; it being recognized by
Lenders, however, that projections as to future events are not to be
viewed as facts and that the actual results during the period or periods
covered by said projections may differ from the projected results;




     (d) default shall be made in the due observance or performance by
any Company of any covenant, condition or agreement contained in Section
5.02, 5.03, 5.08, 5.16 or in Article VI;




     (e) default shall be made in the due observance or performance by
any Company of any covenant, condition or agreement contained in Section
5.01 or 5.15 and such default shall continue unremedied or shall not be
waived for a period of 5 days;




     (f) default shall be made in the due observance or performance by
any Company of any covenant, condition or agreement contained in any Loan
Document (other than those specified in paragraphs (a), (b), (d) or (e)
above) and such default shall continue unremedied or shall not be waived
for a period of 20 days after written notice thereof from the
Administrative Agent or any Lender to Borrower;




     (g) any Company shall (i) fail to pay any principal or interest,
regardless of amount, due in respect of any Indebtedness (other than the
Obligations), when and as the same shall become due and payable, or (ii)
fail to observe or perform any other term, covenant, condition or
agreement contained in any agreement or instrument evidencing or
governing any such Indebtedness if the effect of any failure referred to
in clauses (i) and (ii) is to cause, or to permit the holder or holders
of such Indebtedness or a trustee on its or their behalf (with or without
the giving of notice, the lapse of time or both) to cause, such
Indebtedness to become due prior to its stated maturity; provided, that
it shall not



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constitute an Event of Default pursuant to this paragraph (f) unless
the aggregate amount of all such Indebtedness referred to in clauses (i)
and (ii) exceeds $100,000 at any one time;




     (h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
relief in respect of any Domestic or Canadian Company (other than any
Domestic or Canadian Company which is an Inactive Company and with
respect to which the book value of its tangible assets does not exceed
the Dollar Equivalent of $3.0 million) or any Foreign Company with
respect to which the book value of its tangible assets exceeds the Dollar
Equivalent of $3.0 million, or of a substantial part of the Property or
assets of any Company, under Title 11 of the United States Code, as now
constituted or hereafter amended, BIA, CCAA or any other federal, state
or foreign bankruptcy, insolvency, receivership or similar law; (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator
or similar official for any such Company or for a substantial part of the
Property or assets of any such Company; or (iii) the winding-up or
liquidation of any such Company; and, in any such case, such proceeding
or petition shall continue undismissed for 60 days or an order or decree
approving or ordering any of the foregoing shall be entered;




     (i) any Domestic or Canadian Company or any Foreign Company with
respect to which the book value of its tangible assets exceeds the Dollar
Equivalent of $3.0 million shall (i) voluntarily commence any proceeding
or file any petition seeking relief under Title 11 of the United States
Code, as now constituted or hereafter amended, or any other federal,
state or foreign bankruptcy, insolvency, receivership or similar law;
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or the filing of any petition
described in (g) above; (iii) apply for or consent to the appointment of
a receiver, trustee, custodian, sequestrator, conservator or similar
official for any such Company or for a substantial part of the Property
or assets of any such Company; (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding; (v)
make a general assignment for the benefit of creditors; (vi) become
unable (after taking into account all rights of contribution), admit in
writing its inability or fail generally to pay its debts as they become
due; (vii) take any action for the purpose of effecting any of the
foregoing; or (viii) wind up or liquidate;




     (j) one or more judgments for the payment of money in an aggregate
amount in excess of $1.0 million shall be rendered against any Company or
any combination thereof and the same shall remain undischarged for a
period of 30 consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment
creditor to levy upon assets or properties of any Company to enforce any
such judgment;




     (k) an ERISA Event or noncompliance with respect to Foreign Plans
shall have occurred that, in the reasonable opinion of the Required
Lenders, when taken together with all other such ERISA Events and
noncompliance with respect to Foreign Plans that have occurred, could
reasonably be expected to result in liability of any Domestic or Canadian
Company and its ERISA Affiliates in an aggregate amount exceeding
$500,000 or the imposition of a Lien on any assets of a Company;



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     (l) any security interest and Lien purported to be created by any
Security Document shall cease to be in full force and effect, or shall
cease to give the Collateral Agent, for the benefit of the Secured
Parties, the Liens, rights, powers and privileges purported to be created
and granted under such Security Documents (including a perfected first
priority security interest in and Lien on, all of the Collateral
thereunder (except as otherwise expressly provided in such Security
Document)) in favor of the Collateral Agent, or shall be asserted by
Borrower or any other Loan Party not to be, a valid, perfected, first
priority (except as otherwise expressly provided in this Agreement or
such Security Document) security interest in or Lien on the Collateral
covered thereby;




     (m) the Guarantees shall cease to be in full force and effect,
unless in connection with the sale, merger or dissolution of a Guarantor
to the extent permitted under Section 6.05 hereof;




     (n) any Loan Document or any material provisions thereof shall at
any time and for any reason be declared by a court of competent
jurisdiction to be null and void, or a proceeding shall be commenced by
any Loan Party or any other Person, or by any Governmental Authority,
seeking to establish the invalidity or unenforceability thereof
(exclusive of questions of interpretation of any provision thereof), or
any Loan Party shall repudiate or deny that it has any liability or
obligation for the payment of principal or interest or other obligations
purported to be created under any Loan Document;




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




     (p) any Loan Party shall be prohibited or otherwise restrained from
conducting the business theretofore conducted by it in any manner that
has or could reasonably be expected to result in a Material Adverse
Effect by virtue of any determination, ruling, decision, decree or order
of any court or Governmental Authority of competent jurisdiction; or




     (q) the indictment by any Governmental Authority of any Loan Party
as to which any Loan Party or Administrative Agent receives notice as to
which there is a reasonable possibility of an adverse determination, in
the good faith determination of Administrative Agent, under any criminal
statute, or commencement of criminal or civil proceedings against any
Loan Party pursuant to which statute or proceedings the penalties or
remedies sought or available include forfeiture of (i) any of the
Collateral having a value in excess of $1.0 million or (ii) any other
Property of any Loan Party which is necessary or material to the conduct
of its business;


then, and in every such event (other than an event with respect to Holdings or
Borrower described in paragraph (g) or (h) above), and at any time thereafter
during the continuance of such event, the Administrative Agent or the
Collateral Agent may, and at the request of the Required Lenders shall, by
notice to Borrower, take either or both of the following actions, at the same
or different times: (i) terminate forthwith the Commitments and (ii) declare
the Loans then outstanding to be forthwith due and payable in whole or in part,
whereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and any unpaid accrued Fees and all
other liabilities of Borrower accrued hereunder and under any other Loan


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Document, shall become forthwith due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived by Borrower and the Guarantors, anything contained herein or in any
other Loan Document to the contrary notwithstanding; and in any event with
respect to Holdings or Borrower described in paragraph (g) or (h) above, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and any unpaid accrued Fees
and all other liabilities of Borrower accrued hereunder and under any other
Loan Document, shall automatically become due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived by Borrower and the Guarantors, anything contained herein or
in any other Loan Document to the contrary notwithstanding.




ARTICLE IX.




COLLATERAL MATTERS; CASH COLLATERAL ACCOUNTS; APPLICATION OF COLLATERAL PROCEEDS




     SECTION 9.01 Accounts and Account Collections.



     (a) Borrower and each Borrowing Base Guarantor shall notify Collateral
Agent promptly of: (i) any material delay in the performance by Borrower or
any Borrowing Base Guarantor of any of their material obligations to any
Account Debtor or the assertion of any material claims, offsets, defenses or
counterclaims by any Account Debtor, or any material disputes with Account
Debtors, or any settlement, adjustment or compromise thereof, (ii) all material
adverse information known to any Loan Party relating to the financial condition
of any Account Debtor and (iii) any event or circumstance which, to any Loan
Party’s knowledge, would result in any Account no longer constituting an
Eligible Account. Borrower and each Borrowing Base Guarantor hereby agree not
to grant to any Account Debtor any credit, discount, allowance or extension, or
to enter into any agreement for any of the foregoing, without Collateral
Agent’s consent, except in the ordinary course of business in accordance with
practices and policies previously disclosed in writing to Collateral Agent. So
long as no Event of Default exists or has occurred and is continuing, Borrower
and each Borrowing Base Guarantor may settle, adjust or compromise any claim,
offset, counterclaim or dispute with any Account Debtor. At any time that an
Event of Default exists or has occurred and is continuing, Collateral Agent
shall, at its option, have the exclusive right to settle, adjust or compromise
any claim, offset, counterclaim or dispute with Account Debtors of any Loan
Party or grant any credits, discounts or allowances.



     (b) With respect to each Account: (i) the amounts shown on any invoice
delivered to Collateral Agent or schedule thereof delivered to Collateral Agent
shall be true and complete in all material respects, (ii) no payments shall be
made thereon except payments immediately delivered to Collateral Agent pursuant
to the terms of this Agreement or any applicable Security Document (to the
extent so required), (iii) there shall be no setoffs, deductions, contras,
defenses, counterclaims or disputes existing or asserted with respect thereto
except as reported to Collateral Agent and promptly reflected in the reporting
of the Borrowing Base, in accordance with the terms of this Agreement, and (iv)
none of the transactions giving rise thereto will violate any applicable laws
or regulations, all documentation relating thereto will be legally sufficient
under such laws and regulations and all such documentation will be legally
enforceable in accordance with its terms.



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     (c) Collateral Agent shall have the right at any time or times, in
Collateral Agent’s name or in the name of a nominee of Collateral Agent, to
verify the validity, amount or any other matter relating to any Account or
other Collateral, by mail, telephone, e-mail, facsimile transmission or
otherwise. To facilitate the exercise of the right described in the
immediately preceding sentence, Borrower hereby agrees to provide Collateral
Agent upon request the name and address of each Account Debtor of Borrower or
any Borrowing Base Guarantor.



     (d) Borrower shall establish and maintain, at its sole expense, and shall
cause each Guarantor to establish and maintain, at its sole expense blocked
accounts or lockboxes and related deposit accounts (collectively, the “Blocked
Accounts”), as Collateral Agent may specify, with such banks as are acceptable
to Collateral Agent into which Borrower and Guarantors shall promptly deposit
and direct their respective Account Debtors to directly remit all payments on
Accounts and all payments constituting proceeds of Inventory or other
Collateral (other than proceeds of a Casualty Event or Asset Sales that do not
require a permanent repayment under Loan Documents) in the identical form in
which such payments are made, whether by cash, check or other manner and shall
be identified and segregated from all other funds of the Loan Parties.
Borrower and Guarantors shall deliver, or cause to be delivered, to Collateral
Agent a Deposit Account Control Agreement duly authorized, executed and
delivered by each bank where a Blocked Account for the benefit of Borrower or
any Guarantor is maintained, and by each bank where any other deposit account
is from time to time maintained. Borrower shall further execute and deliver,
and shall cause each Guarantor to execute and deliver, such agreements and
documents as Collateral Agent may require in connection with such Blocked
Accounts and such Deposit Account Control Agreements. Except as permitted by
Section 9.01(e)(iii), Borrower and Guarantors shall not establish any deposit
accounts after the Original Closing Date, unless Borrower or Guarantor (as
applicable) have complied in full with the provisions of this Section 9.01 with
respect to such deposit accounts. Borrower agrees that all payments made to
such Blocked Accounts or other funds received and collected by Collateral Agent
or any Lender, whether in respect of the Accounts, as proceeds of Inventory or
other Collateral or otherwise shall be treated as payments to Collateral Agent
and Lenders in respect of the Obligations and therefore shall constitute the
property of Collateral Agent and Lenders to the extent of the then outstanding
Obligations.



     (e) The Borrower and each Guarantor shall maintain a cash management
system which is acceptable to the Administrative Agent and the Collateral Agent
(the “Cash Management System”). The Cash Management System shall contain,
among other things, the following:



          (i) With respect to the Blocked Accounts of Borrower and such Guarantors
as the Collateral Agent shall determine in its sole discretion, the applicable
bank maintaining such Blocked Accounts shall agree, pursuant to the applicable
Deposit Account Control Agreement, to forward daily all amounts in each Blocked
Account to one Blocked Account designated as concentration account in the name
of Borrower (the “Concentration Account”) at the bank that shall be designated
as the Concentration Account bank for Borrower (the “Concentration Account
Bank”), which, on the Original Closing Date, shall be account #4005296793
maintained by PNC Bank, National Association. The Concentration Account Bank
shall agree, pursuant to the applicable Deposit Account Control Agreement, to
forward daily all amounts in the Concentration Account to the account
designated as collection account (the “Collection Account”) which shall be
under the exclusive dominion and control of the Collateral Agent;



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          (ii) With respect to the Blocked Accounts of such Guarantors as the
Collateral Agent shall determine in its sole discretion, the applicable bank
maintaining such Blocked Accounts shall agree, from and after the receipt of a
notice (an “Activation Notice”) from the Collateral Agent (which Activation
Notice may be given by Collateral Agent at any time in its discretion), to
forward all amounts in each Blocked Account to the applicable Collection
Account and to commence the process of daily sweeps from such Blocked Account
into the Collection Account;



          (iii) Borrower may maintain, in its name, an account or accounts at a bank
reasonably acceptable to Administrative Agent, into which Administrative Agent
shall, from time to time, deposit proceeds of Revolving Loans and Swingline
Loans made to Borrower hereunder and which bank shall agree, pursuant to
Deposit Account Control Agreement relative to such disbursement account, from
and after the receipt of a notice from the Collateral Agent (which notice may
be given by Collateral Agent at any time an Event of Default occurs and is
continuing) to forward all amounts in each Blocked Account to the applicable
Collection Account. Any provision of this Section 9.01 to the contrary
notwithstanding, (A) Loan Parties may maintain payroll accounts and trust
accounts that are not a part of the Cash Management Systems provided that no
Loan Party shall accumulate or maintain cash in such accounts and the
disbursement account(s) described in the preceding sentence as of any date of
determination in excess of checks outstanding against such accounts as of that
date and amounts necessary to meet minimum balance requirements and (B) Loan
Parties may maintain local cash accounts that are not a part of the Cash
Management Systems which individually do not at any time contain funds in
excess of $100,000 and, together with all other such local cash accounts, do
not exceed $1.0 million.



     (f) The Administrative Agent shall apply all funds received in the
Collection Account on a daily basis to the repayment (by transferring same to
the account of or pursuant to direction of Administrative Agent) of (i) first,
Fees and reimbursable expenses of the Administrative Agent and the Collateral
Agent then due and payable; (ii) second, to interest then due and payable on
all Loans, (iii) third, Overadvances, (iv) fourth, the Swingline Loans, (v)
fifth, ABR Revolving Loans, (vi) sixth, Eurodollar Revolving Loans, together
with all accrued and unpaid interest thereon (excluding Eurodollar Revolving
Loans (A) with respect to which the application of such payment would result in
the payment of the principal prior to the last day of the relevant Interest
Period and (B) which Borrower elects to continue pursuant to Section 2.08(b)),
and (vii) last, other amounts which are due, in each case without a reduction
in the Commitments; all further funds received in any of the Collection Account
shall, unless an Event of Default has occurred and is continuing, be
transferred or applied by the Collateral Agent in accordance with the
directions of Borrower or the respective other Loan Party. If an Event of
Default has occurred and is continuing, the Administrative Agent shall not
transfer or apply any such funds from the Collection Account in accordance with
such directions unless the Administrative Agent and the Collateral Agent
determine to release such funds to Borrower. Absent any such determination by
the Administrative Agent and the Collateral Agent, all such funds in the
Collection Account shall be transferred to the Cash Collateral Account to be
applied to the Eurodollar Revolving Loans on the last day of the relevant
Interest Period of such Eurodollar Revolving Loan or to the Obligations as they
come due (whether at stated maturity, by acceleration or otherwise). If
consented to by the Administrative Agent, the Collateral Agent and the Required
Lenders, such funds in the Cash Collateral Account may be released to Borrower.



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     (g) Borrower and its directors, employees, agents and other Affiliates and
Borrowing Base Guarantors shall, acting as trustee for Collateral Agent,
receive, as the property of Collateral Agent, any monies, checks, notes, drafts
or any other payment relating to and/or proceeds of Accounts, Inventory or
other Collateral which come into their possession or under their control and
immediately upon receipt thereof, shall deposit or cause the same to be
deposited in the Blocked Accounts, or remit the same or cause the same to be
remitted, in kind, to Collateral Agent. In no event shall the same be
commingled with Borrower’s own funds. Borrower agrees to reimburse Collateral
Agent on demand for any amounts owed or paid to any bank at which a Blocked
Account is established or any other bank or Person involved in the transfer of
funds to or from the Blocked Accounts arising out of Collateral Agent’s
payments to or indemnification of such bank or Person.



     (h) With respect to the accounts #4005296996 and #4005297008 maintained at
PNC Bank, National Association, Loan Parties represent and warrant that no more
than $2,500 in the aggregate is on deposit therein and covenant and agree that
no Loan Party shall deposit or suffer to be deposited therein any funds, and
Loan Parties shall terminate such accounts no later than December 24, 2003, on
or before which date Borrower agrees to deliver to the Administrative Agent
evidence of such termination.



     SECTION 9.02 Inventory; Field Audits and Appraisals. With respect to the
Inventory: (a) Borrower and Borrowing Base Guarantors shall at all times
maintain records of Inventory reasonably satisfactory to Collateral Agent,
keeping correct and accurate records itemizing and describing the kind, type,
quality and quantity of Inventory, the cost therefor and daily withdrawals
therefrom and additions thereto; (b) any of the Administrative Agent’s and
Collateral Agent’s officers, employees or agents shall have the right, at any
time or times, in the name of the Administrative Agent or Collateral Agent, as
applicable, any designee of the Administrative Agent, Collateral Agent or
Borrower, to verify the validity, amount or any other matter relating to
Accounts or Inventory by mail, telephone, electronic communication, personal
inspection or otherwise and to conduct field audits of the financial affairs
and Collateral of the Loan Parties, and Borrower shall cooperate fully with the
Administrative Agent and Collateral Agent in an effort to facilitate and
promptly conclude any such verification process; (c) the Loan Parties shall
cooperate fully with the Collateral Agent and its agents during all Collateral
field audits and Inventory Appraisals which shall be at the expense of Borrower
and which shall be conducted no more frequently than quarterly, or, following
the occurrence and during the continuation of an Event of Default, more
frequently at Collateral Agent’s request; (d) neither Borrower nor any
Borrowing Base Guarantor shall sell Inventory to any customer on approval, or
any other basis which entitles the customer to return (except for the right of
customers for Inventory which is defective or non-conforming) or may obligate
any Loan Party to repurchase such Inventory; and (e) Borrower Borrowing Base
Guarantor shall keep the Inventory in good and marketable condition.



     SECTION 9.03 Equipment, Real Property and Appraisals.



     With respect to the Equipment and owned Real Property: (a) upon the
Collateral Agent’s request, Borrower shall, at its expense, no more than one
(1) time in any twelve (12) month period commencing with the Original Closing
Date, but at any time or times as the Collateral
Agent may request following the occurrence and during the continuance of
an Event of Default,



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deliver or cause to be delivered to the Collateral Agent
written appraisals as to the Equipment and/or the owned Real Property by an
independent appraiser designated by the Collateral Agent and reasonably
acceptable to Borrower, (b) Borrower and each Borrowing Base Guarantor shall
notify Collateral Agent promptly of any event or circumstance which, to any
Loan Party’s knowledge, would result in any Equipment no longer constituting an
Eligible Equipment and (c) Borrower and each Borrowing Base Guarantor shall
notify Collateral Agent promptly of any event or circumstance which, to any
Loan Party’s knowledge, would result in any Real Property no longer
constituting an Eligible Real Property.



     SECTION 9.04 Cash Collateral Account.



     (a) The Collateral Agent is hereby authorized to establish and maintain at
its office at 222 North LaSalle Street, 16th Floor, Chicago, Illinois 60601,
in the name of the Collateral Agent and pursuant to a dominion and control
Agreement, one or more restricted deposit account designated as a “Cash
Collateral Account” bearing the name of the owners of the funds contained
therein (e.g., General Cable Industries Inc. – Cash Collateral Account). Each
Loan Party shall deposit into its respective Cash Collateral Account from time
to time the cash collateral required to be deposited under Section 2.18(j) or
Section 9.01(f) hereof.



     (b) The balance from time to time in such Cash Collateral Accounts shall
constitute part of the Collateral and shall not constitute payment of the
Obligations until applied as hereinafter provided. Notwithstanding any other
provision hereof to the contrary, all amounts held in the Cash Collateral
Accounts shall constitute collateral security (i) first for the liabilities in
respect of Letters of Credit outstanding from time to time and second for the
other Obligations hereunder until such time as all Letters of Credit shall have
been terminated and all of the liabilities in respect of Letters of Credit have
been paid in full, and (ii) if held in Cash Collateral Account pursuant to
Section 9.01(f), then for the Obligations as provided therein.



     SECTION 9.05 Application of Proceeds. The proceeds received by the
Collateral Agent in respect of any sale of, collection from or other
realization upon all or any part of the Collateral pursuant to the exercise by
the Collateral Agent of its remedies shall be applied, together with any other
sums then held by the Collateral Agent pursuant to this Agreement, promptly by
the Collateral Agent as follows (with, in the case of proceeds from a Borrowing
Base Guarantor, a corresponding reduction in the Borrowing Base Guarantor
Intercompany Loan Account):




     (a) First, to the payment of all reasonable costs and expenses,
fees, commissions and taxes of such sale, collection or other realization
including, without limitation, compensation to the Collateral Agent and
its agents and counsel, and all expenses, liabilities and advances made
or incurred by the Collateral Agent in connection therewith, together
with interest on each such amount at the highest rate then in effect
under this Agreement from and after the date such amount is due, owing or
unpaid until paid in full;




     (b) Second, to the payment of all other reasonable costs and
expenses of such sale, collection or other realization including, without
limitation, costs and expenses and all costs, liabilities and advances
made or incurred by the other Secured Parties in



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connection therewith,
together with interest on each such amount at the highest rate then in
effect under this Agreement from and after the date such amount is due,
owing or unpaid until paid in full;




     (c) Third, without duplication of amounts applied pursuant to
paragraphs (a) and (b) above, to the indefeasible payment in full in
cash, of each Lender’s Default Allocation Percentage of interest,
principal and other amounts constituting Obligations, equally and ratably
in accordance with each Lender’s Default Allocation Percentage of such
amounts; and




     (d) Fourth, the balance, if any, to the Person lawfully entitled
thereto (including the applicable Loan Party or its successors or
assigns).



     In the event that any such proceeds are insufficient to pay in full the
items described in clauses (a) through (c) of this Section 9.02, the Loan
Parties shall remain liable for any deficiency.



ARTICLE X.




THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT




     SECTION 10.01 Appointment. (a) Each Lender hereby irrevocably designates
and appoints UBS as the Administrative Agent under this Agreement and the other
Loan Documents, and each Lender irrevocably authorizes UBS, in its capacity as
the Administrative Agent, to take such actions on its behalf under the
provisions of this Agreement and the other Loan Documents and to exercise such
powers as are expressly delegated to the Administrative Agent by the terms of
this Agreement and the other Loan Documents, together with such actions and
powers as are reasonably incidental thereto.



     (b) Each Secured Party hereby irrevocably designates and appoints Merrill
as the Collateral Agent under this Agreement and the other Loan Documents, and
each Lender irrevocably authorizes Merrill its capacity as the Collateral
Agent, to take such actions on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers as are
expressly delegated to the Collateral Agent by the terms of this Agreement and
the other Loan Documents, together with such actions and powers as are
reasonably incidental thereto. Except as otherwise provided herein, Collateral
Agent shall hold all Collateral and all payments of principal, interest, fees,
charges and expenses received pursuant to this Agreement or any of the Loan
Documents for the benefit of Secured Parties and shall enforce the rights in
the Collateral on behalf of the Secured Parties. Without limiting any of the
foregoing, for the purposes of holding any security granted by any Loan Party
pursuant to the laws of the Province of Quebec, the Collateral Agent shall be
the holder of an irrevocable power
of attorney (fondè de pouvoir) (within the meaning of the Civil Code of
Quebec) for all present and future Secured Parties and in particular for all
present and future holders of the bond(s) issued by any Loan Party in favor of
the Collateral Agent (the “Bond”). Each of the Secured Parties hereby confirms
and ratifies the appointment of the Collateral Agent pursuant to the Prior
Credit Agreement to act as the Person holding an irrevocable power of attorney
(fondè de pouvoir) pursuant to article 2692 of the Civil Code of Quebec in
order to hold security granted by



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a Loan Party in the Province of Quebec to
secure a Bond. By executing an Assignment and Acceptance, each future Secured
Party shall be deemed to ratify the constitution of the Collateral Agent as the
holder of the irrevocable power of attorney (fondè de pouvoir) granted herein.
Each party hereto agrees that, notwithstanding Section 32 of an Act respecting
the Special Powers of Legal Persons (Quebec), Collateral Agent may, as the
Person holding the power of attorney of the Secured Parties, acquire and/or be
holder of the Bond.



     (c) Each Secured Party authorizes and directs the Collateral Agent to
enter into the Security Documents and other Loan Documents for the benefit of
Secured Parties. The Collateral Agent is hereby authorized on behalf of all
Secured Parties, without the necessity of any notice to or further consent from
any Secured Party to take any action with respect to any Collateral or the
Security Documents or the other Loan Documents which may be necessary to
perfect and maintain perfected the security interest in and liens upon the
Collateral granted pursuant to the Security Documents and the other Loan
Documents. Each Secured Party agrees that it shall have recourse under or by
virtue of the Security Documents to the Collateral only through the Collateral
Agent, that it shall have no independent recourse to the Liens created by the
Security Documents and that it shall refrain from exercising any rights or
remedies under the Security Documents which have or may have arisen or which
may arise as a result of an Event of Default or an acceleration of the
maturities of the Obligations, except that, any Secured Party (i) may give
directions to the Collateral Agent as one of the Required Lenders, and (ii)
may, to the extent permitted by law or under any Loan Document, set off any
amount of any balances held by it for the account of any Company or any other
property held or owing by it to or for the credit or for the account of any
Company provided, however, that to the extent the amount so set off is to be
applied to any of the Obligations held by such Secured Party, such amount shall
be delivered by such Secured Party to the Collateral Agent for application
pursuant to this Agreement.



     (d) Notwithstanding paragraph (c) above, each Lender shall have the right,
with prior notice to Administrative Agent and the Collateral Agent, but without
the approval or consent of Administrative Agent, the Collateral Agent or the
other Lenders, with respect to any Specified Hedging Agreement of such Lender,
(i) to declare an event of default, termination event or other similar event
thereunder and to create an early termination date, (ii) to determine net
termination amounts in accordance with the terms of such Specified Hedging
Agreement and to set-off amounts between Specified Hedging Agreement, and (iii)
in the absence of acceleration of all the Obligations under Article VIII, to
prosecute any legal action against the applicable Company to enforce net
amounts owing to such Lender under the Specified Hedging Agreement.



     (e) The Administrative Agent and the Collateral Agent may perform any of
their duties hereunder by or through its agents or employees and each may, from
time to time, agree to reallocate or temporarily assign its rights and
responsibilities hereunder to the other.



     SECTION 10.02 Administrative Agent and Collateral Agent in Their
Individual Capacity. The Person serving as the Administrative Agent and
Collateral Agent hereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though it
were not the Administrative Agent and Collateral Agent, as applicable, and such
Person and its Affiliates may accept deposits from, lend money to and



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generally
engage in any kind of business with Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder or
Collateral Agent, as applicable.



     SECTION 10.03 Exculpatory Provisions. Neither the Administrative Agent
nor the Collateral Agent shall have any duties or obligations except those
expressly set forth in the Loan Documents. Without limiting the generality of
the foregoing, (a) the Administrative Agent and the Collateral Agent, shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing (except for the Collateral Agent in its
capacity as trustee for the Secured Parties in respect of the Collateral which
is the subject of Security Documents governed by English law), (b) the
Administrative Agent the Collateral Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated by the Loan Documents that the
Administrative Agent or the Collateral Agent, as applicable, is required to
exercise in writing by the Required Lenders (or such other number or percentage
of the Lenders as shall be necessary under the circumstances as provided in
Section 11.02), and (c) except as expressly set forth in the Loan Documents,
the Administrative Agent and the Collateral Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to Borrower or any of its Subsidiaries that is communicated to or
obtained by the bank serving as Administrative Agent or Collateral Agent , as
applicable, or any of its respective Affiliates in any capacity. The
Administrative Agent and Collateral Agent shall not be liable for any action
taken or not taken by it with the consent or at the request of the Required
Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as expressly provided in this Agreement) or
in the absence of its own gross negligence or willful misconduct. The
Administrative Agent and Collateral Agent shall not be deemed to have knowledge
of any Default unless and until written notice thereof is given to the
Administrative Agent and Collateral Agent by Borrower or a Lender, and the
Administrative Agent and Collateral Agent shall not be responsible for or have
any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document delivered thereunder or
in connection therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of
any Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent or Collateral Agent, as applicable.



     SECTION 10.04 Reliance by the Administrative Agent and the Collateral
Agent. The Administrative Agent and the Collateral Agent shall be entitled to
rely upon, and shall not incur any liability for relying upon, any notice,
request, certificate, consent, statement, instrument, document or other writing
believed by it to be genuine and to have been signed or sent by the proper
Person. The Administrative Agent and the Collateral Agent also may rely upon
any statement made to it orally or by telephone and believed by it to be made
by the proper Person, and shall not incur any liability for relying thereon.
The Administrative Agent or the Collateral Agent may consult with legal counsel
(who may be counsel for Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.



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     SECTION 10.05 Delegation of Duties. The Administrative Agent and
Collateral Agent may perform any and all its duties and exercise its rights and
powers by or through any one or more sub-agents appointed by the Administrative
Agent or Collateral Agent, as applicable. The Administrative Agent and
Collateral Agent and any such respective sub-agent may perform any and all its
duties and exercise its rights and powers through their respective Affiliates.
The exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Affiliates of each Administrative Agent and Collateral
Agent and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities of Administrative Agent and Collateral Agent.



     SECTION 10.06 Successor Administrative Agent and/or Collateral Agent.
The Administrative Agent and/or Collateral Agent may resign as such at any time
upon at least 20 days’ prior notice to the Lenders, the Issuing Bank and
Borrower. Upon any such resignation, the Required Lenders shall have the
right, in consultation with Borrower, to appoint a successor from among the
Lenders; provided, however, that if the resigning Administrative Agent is UBS,
the successor Administrative Bank shall be Merrill and if the resigning
Collateral Agent is Merrill, the successor Collateral Bank shall be UBS. If no
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative
Agent and/or Collateral Agent, as applicable, gives notice of its resignation,
then the retiring Administrative Agent and/or Collateral Agent, as applicable
may, on behalf of the Lenders and the Issuing Bank, appoint a successor
Administrative Agent and/or Collateral Agent, as applicable, which successor
shall be a commercial banking institution organized under the laws of the
United States (or any state thereof) or a United States branch or agency of a
commercial banking institution, and having combined capital and surplus of at
least $250.0 million; provided, however, that if such retiring Administrative
Agent and/or Collateral Agent, as applicable is unable to find a commercial
banking institution which is willing to accept such appointment and which meets
the qualifications set forth above, the retiring Administrative Agent’s and/or
Collateral Agent’s resignation shall nevertheless thereupon become effective,
and the Lenders shall assume and perform all of the duties of the
Administrative Agent and/or Collateral Agent, as applicable hereunder until
such time, if any, as the Required Lenders appoint a successor Administrative
Agent and/or Collateral Agent, as applicable.



     Upon the acceptance of its appointment as Administrative Agent and/or
Collateral Agent, as applicable, hereunder by a successor, such successor shall
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent and/or Collateral Agent, as applicable,
and the retiring Administrative Agent and/or Collateral Agent, as applicable,
shall be discharged from its duties and obligations hereunder. The fees
payable by Borrower to a successor Administrative Agent and/or Collateral
Agent, as applicable, shall be the same as those payable to its predecessor
unless otherwise agreed between Borrower and such successor. After the
Administrative Agent’s and/or Collateral Agent’s resignation hereunder, the
provisions of this Article X and Section 11.03 shall continue in effect for the
benefit of such retiring Administrative Agent and/or Collateral Agent, as
applicable, its respective sub-agents and their respective Affiliates in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent and/or Collateral Agent, as applicable.



     SECTION 10.07 Non-Reliance on the Administrative Agent, the Collateral
Agent or Other Lenders. Each Lender acknowledges that it has, independently
and without reliance



139









 







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



     SECTION 10.08 No Other Administrative Agent or Collateral Agent. The
Lenders identified in this Agreement, the Syndication Agent and the
Documentation Agent shall not have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders. Without limiting the foregoing, neither the Syndication Agent nor the
Documentation Agent shall have or be deemed to have a fiduciary relationship
with any Lender. Each Lender hereby makes the same acknowledgments with
respect to the Syndication Agent and the Documentation Agent as it makes with
respect to the Administrative Agent or Collateral Agent or any other Lender in
this Article X. Notwithstanding the foregoing, the parties hereto acknowledge
that the Documentation Agent and the Syndication Agent hold such titles in name
only, and that such titles confer no additional rights or obligations relative
to those conferred on any Lender hereunder.



     SECTION 10.09 Indemnification. The Lenders severally agree to indemnify
each Agent in its capacity as such (to the extent not reimbursed by the
Borrower or the Guarantors and without limiting the obligation of the Borrower
or the Guarantors to do so), ratably according to their respective outstanding
Loans and Commitments in effect on the date on which indemnification is sought
under this Section 10.09 (or, if indemnification is sought after the date upon
which all Commitments shall have terminated and the Loans shall have been paid
in full, ratably in accordance with such outstanding Loans and Commitments as
in effect 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 10.09 shall survive the payment of the Loans and all other amounts
payable hereunder.



     SECTION 10.10 Overadvances. The Administrative Agent shall not make (and
shall prohibit the Issuing Bank and Swingline Lender, as applicable, from
making) any Revolving Loans or provide any Letters of Credit to Borrower on
behalf of Lenders intentionally and with actual knowledge that such Revolving
Loans, Swingline Loans, or Letters of Credit would cause the aggregate amount
of the Revolving Exposure to exceed the Borrowing Base, without the prior
consent of all Lenders, except, that, the Administrative Agent (after
consultation with and



140









 







consent of the Collateral Agent) may make (or cause to be
made) such additional Revolving Loans or Swingline Loans or provide such
additional Letters of Credit on behalf of Lenders, intentionally and with
actual knowledge that such Loans or Letters of Credit will cause (a) the total
outstanding Revolving Exposure to exceed the Borrowing Base, or (b) Excess
Availability to be less than $15.0 million, in each case as the Administrative
Agent and the Collateral Agent may deem necessary or advisable in their
collective discretion (each an “Overadvance” and collectively the
“Overadvances”), provided, that: (i) the total principal amount of the
Overadvances to Borrower which the Administrative Agent may make or provide (or
cause to be made or provided) after obtaining such actual knowledge that the
Revolving Exposure equals or exceeds the Borrowing Base shall not exceed the
amount equal to $20.0 million outstanding at any time less the then outstanding
amount of any Special Agent Advances and shall not cause the Revolving Exposure
to exceed the Revolving Commitments of all of the Lenders or the Pro Rata
Percentage of the Revolving Exposure of a Lender to exceed such Lender’s
Revolving Commitment, (ii) without the consent of all Lenders, (A) no
Overadvance shall be outstanding for more than sixty (60) days and (B) after
all Overadvances have been repaid, the Administrative Agent shall not make any
additional Overadvance unless sixty (60) days or more have elapsed since the
last date on which any Overadvance was outstanding and (iii) the Administrative
Agent shall be entitled to recover such funds, on demand from Borrower together
with interest thereon for each day from the date such payment was due until the
date such amount is paid to the Administrative Agent at the interest rate
provided for in Section 2.06(c). Each Lender shall be obligated to pay the
Administrative Agent the amount of its Pro Rata Percentage of any such
Overadvance provided, that the Administrative Agent is acting in accordance
with the terms of this Section 10.10. All Overadvances shall be secured by
Collateral.



     SECTION 10.11 Special Agent Advances. Administrative Agent (after consultation with and consent of the
Collateral Agent) may, at its option, from time to time, at any time on or
after an Event of Default and for so long as the same is continuing or upon any
other failure of a condition precedent to the making of Loans hereunder, make
such disbursements and advances (“Special Agent Advances”) which the
Administrative Agent, in its sole discretion after such consultation with the
Collateral Agent, deems necessary or desirable either (i) to preserve or
protect the Collateral or any portion thereof or (ii) to pay any other amount
chargeable to Borrower pursuant to the terms of this Agreement or any of the
other Loan Documents consisting of costs, fees and expenses and payments to any
Issuing Bank (provided, that in no event shall (i) Special Agent Advances for
such purpose exceed the amount equal to $20.0 million in the aggregate
outstanding at any time less the then outstanding Overadvances under Section
10.10 hereof and (ii) Special Agent Advances plus the Revolving Exposure exceed

the Lenders’ Commitment at the time of such Event of Default or cause any
Lender’s Revolving Exposure to exceed such Lender’s Revolving Loan Commitment
at the time of such Event of Default). Special Agent Advances shall be
repayable on demand and be secured by the Collateral. Special Agent Advances
shall not constitute Loans but shall otherwise constitute Obligations
hereunder. Administrative Agent shall notify each Lender and Borrower in
writing of each such Special Agent Advance, which notice shall include a
description of the purpose of such Special Agent Advance. Each Lender agrees
that it shall make available to Administrative Agent, upon Administrative
Agent’s demand, in immediately available funds, the amount equal to such
Lender’s Pro Rata Percentage of each such Special Agent Advance. If such funds
are not made available to Administrative Agent by such Lender, Administrative
Agent shall be entitled



141









 







to recover such funds, on demand from such Lender
together with interest thereon for each day from the date such payment was due
until the date such amount is paid to Administrative Agent at the Federal Funds
Rate for each day during such period (as published by the Federal Reserve Bank
of New York or at Administrative Agent’s option based on the arithmetic mean
determined by Administrative Agent of the rates for the last transaction in
overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on
that day by each of the three leading brokers of Federal funds transactions in
New York City selected by Administrative Agent) and if such amounts are not
paid within three (3) days of Administrative Agent’s demand, at the highest
interest rate provided for in Section 2.06(a).



ARTICLE XI.




MISCELLANEOUS




     SECTION 11.01 Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as
follows:



     (a) if to any Loan Party, to Borrower at:




General Cable Corporation

4 Tesseneer Drive

Highland Heights, , KY 41076

Attention: Chief Financial Officer

Telecopy No.: (859) 572-8011




with a copy to:




Blank Rome LLP

One Logan Square

Philadelphia, PA 19103

Attention: Matthew Siembieda, Esq.

                   Harvey I. Forman, Esq.

Telecopy No.: (215) 569-5555



     (b) if to the Administrative Agent, to it at:




UBS AG, Stamford Branch

677 Washington Boulevard

Stamford, Connecticut 06901

Attention: Juan Zuniga

Telecopy No.: (203) 719-3888



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with a copy to the Collateral Agent as set

forth in Section 11.01(c) below and, except

with respect to communications under Sections 5.01 and 5.15, to:




Latham & Watkins, LLP

233 S. Wacker Drive, Suite 5800

Chicago, IL 60606

Attention: Donald L. Schwartz

Telecopy No.: (312) 993-9767



     (c) if to the Collateral Agent, to it at:




Merrill Lynch Capital, a division of Merrill Lynch

Business Financial Services Inc.

222 North LaSalle Street,

16th Floor,

Chicago, Illinois 60601

Attention: Mark Gertzof

Telecopy No.: (312) 499-3127




with a copy to the Administrative Agent as set

forth in Section 11.01(b) above and, except

with respect to communications under Sections 5.01 and 5.15, to:




Latham & Watkins, LLP

233 S. Wacker Drive, Suite 5800

Chicago, IL 60606

Attention: Donald L. Schwartz

Telecopy No.: (312) 993-9767



     (d) if to a Lender, to it at its address (or telecopy number) set forth on
the applicable Lender Addendum or in the Assignment and Acceptance pursuant to
which such Lender shall have become a party hereto.


All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or by certified or registered mail, in each case delivered, sent or
mailed (properly addressed) to such party as provided in this Section 11.01 or
in accordance with the latest unrevoked direction from such party given in
accordance with this Section 11.01 and failure to deliver courtesy copies of
notices and other communications shall in no event affect the validity or
effectiveness of such notices and other communications.




     SECTION 11.02 Waivers; Amendment; Releases of Collateral. (a) No failure
or delay by the Administrative Agent, the Collateral Agent, the Issuing Bank or
any Lender in exercising any right or power hereunder or under any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any



143









 







abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies
of the Administrative Agent, the Collateral Agent, the Issuing Bank and the
Lenders hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver
of any provision of any Loan Document or consent to any departure by any Loan
Party therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section 11.02, and then such waiver or
consent shall be effective only in the specific instance and for the purpose
for which given. Without limiting the generality of the foregoing, the making
of a Loan or issuance of a Letter of Credit shall not be construed as a waiver
of any Default, regardless of whether the Administrative Agent, the Collateral
Agent, any Lender or the Issuing Bank may have had notice or knowledge of such
Default at the time.



     (b) Neither this Agreement nor any other Loan Document nor any provision
hereof or thereof may be waived, amended or modified except, in the case of
this Agreement, pursuant to an agreement or agreements in writing entered into
by Borrower and the Required Lenders or, in the case of any other Loan
Document, pursuant to an agreement or agreements in writing entered
into by the Administrative Agent or Collateral Agent, as applicable, and
the Loan Party or Loan Parties that are parties thereto, in each case with the
written consent of the Required Lenders; provided, that no such agreement shall
(i) increase the Dollar amount of the Commitment of any Lender without the
written consent of such Lender or increase the commitments of all Lenders
without the consent of each Lender, (ii) reduce or forgive the principal amount
of any Loan or LC Disbursement or reduce the rate of interest thereon or amend
Annex I or the definition of “Applicable Margin” (other than to waive default
interest under Section 2.06(c) to the extent a waiver of the underlying default
giving rise to such default interest does not require a vote of all Lenders),
or reduce or forgive any Fees payable hereunder, without the written consent of
each Lender affected thereby, (iii) postpone the maturity of any Loan, or the
required date of reimbursement of any LC Disbursement, or any date for the
payment of any interest or fees payable hereunder, or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date of expiration
of any Commitment or postpone the scheduled date of expiration of any Letter of
Credit beyond the Maturity Date, or postpone any prepayment or cash
collateralization required under Section 2.10(b), without the written consent
of each Lender affected thereby, (iv) change Section 2.14(b), (c) or Section
9.05 in a manner that would alter the pro rata sharing of payments or set-offs
required thereby, without the written consent of each Lender, (v) change
Section 2.02(a) or (f) or any other Section of this Agreement in a manner that
would alter the pro rata allocation among the Lenders of Loan or L/C
Disbursements without the written consent of each Lender, (vi) change the
percentage set forth in the definition of “Required Lenders”, “Supermajority
Lenders” or any other provision of any Loan Document (including this Section
11.02) specifying the number or percentage of Lenders (or Lenders of any Class)
required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent of
each Lender (or each Lender of such Class, as the case may be), (vii) release
Holdings or any Guarantor from its Guarantee (except as expressly provided in
Article VII), or limit its liability in respect of such Guarantee, without the
written consent of each Lender, (viii) release all or substantially all of the
Collateral from the Liens of the Security Documents (including pursuant to any
Permitted Fixed Asset Exchange or Permitted Asset Sale) or alter the relative
priorities of the Obligations entitled to the Liens of the Security Documents
(except in connection with securing additional Obligations equally and



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ratably
with the other Obligations), in each case without the written consent of each
Lender, or (ix) change any provisions of any Loan Document in a manner that by
its terms adversely affects the rights in respect of payments due to Lenders
holding Loans of any Class differently than those holding Loans of any other
Class, without the written consent of Lenders holding a majority in interest of
the outstanding Loans and unused Commitments of each affected Class; provided,
further, that (1) no such agreement shall amend, modify or otherwise affect the
rights or duties of the Administrative Agent, the Collateral Agent, the Issuing
Bank or the Swingline Lender without the prior written consent of the
Administrative Agent, the Collateral Agent, the Issuing Bank or the Swingline
Lender, as the case may be, and (2) any waiver, amendment or modification of
this Agreement that by its terms affects the rights or duties under this
Agreement of the Revolving Lenders may be effected by an agreement or
agreements in writing entered into by Borrower and requisite percentage in
interest of the affected Class of Lenders that would be required to consent
thereto under this Section 11.02(b) if such Class of Lenders were the only
Class of Lenders hereunder at the time. Notwithstanding the foregoing, any
provision of this Agreement may be amended by an agreement in writing entered
into by Borrower, the Required Lenders, the Administrative Agent and the
Collateral Agent (and, if their rights or obligations are
affected thereby, the Issuing Bank and the Swingline Lender) if (x) by the
terms of such agreement the Commitment of each Lender not consenting to the
amendment provided for therein shall terminate upon the effectiveness of such
amendment and (y) at the time such amendment becomes effective, each Lender not
consenting thereto receives payment in full of the principal of and interest
accrued on each Loan made by it and all other amounts owing to it or accrued
for its account under this Agreement.



     (c) If, in connection with any proposed change, waiver, discharge or
termination of the provisions of this Agreement that requires unanimous
approval of all Lenders as contemplated by Section 11.02(b) (other than clause
(iii) of such Section), the consent of the Supermajority Lenders is obtained
but the consent of one or more of such other Lenders whose consent is required
is not obtained, then Borrower shall have the right to replace all, but not
less than all, of such non-consenting Lender or Lenders (so long as all
non-consenting Lenders are so replaced) with one or more Persons pursuant to
Section 2.16 so long as at the time of such replacement each such new Lender
consents to the proposed change, waiver, discharge or termination; provided,
however, that Borrower shall not have the right to replace a Lender solely as a
result of the exercise of such Lender’s rights (and the withholding of any
required consent by such Lender) pursuant to paragraph (iii) of Section
11.02(b); provided, further, that concurrently with the effectiveness of its
replacement, each replaced Lender receives payment in full of the principal of
and interest accrued on each Loan made by it and all other amounts owing to it
or accrued for its account under this Agreement as in effect immediately prior
to such replacement.



     (d) Notwithstanding any other provision contained in this Agreement or any
Loan Document, if a “secured creditor” (as that term is defined under the BIA)
is determined by a court of competent jurisdiction not to include a Person to
whom obligations are owed on a joint or joint and several basis, then the
Canadian Loan Parties’ Obligations (and the Obligations of its Subsidiaries),
to the extent such Obligations are secured, only shall be several obligations
and not joint or joint and several obligations.



     (e) Without the consent of the Supermajority Lenders, the Collateral Agent
shall not execute any releases of the Liens created by Security Documents with
respect to Collateral



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having an aggregate Fair Market Value in excess of $15.0
million in any fiscal year of the Borrower except for releases in connection
with Permitted Fixed Asset Exchanges, Permitted Asset Sales, or the disposition
of any Property by Borrower or any Borrowing Base Guarantor (or by the
Collateral Agent in connection with an enforcement of such Liens), as otherwise
permitted under this Agreement.



     SECTION 11.03 Expenses; Indemnity. (a) Borrower and Holdings agree,
jointly and severally, to pay all reasonable out-of-pocket expenses (including
but not limited to expenses incurred in connection with due diligence and
travel, courier, reproduction, printing and delivery expenses) incurred by the
Administrative Agent, the Collateral Agent, the Swingline Lender and the
Issuing Bank in connection with the syndication of the credit facilities
provided for herein and the preparation, execution and delivery, and
administration of this Agreement and the other Loan Documents, including any
Inventory Appraisal, or in connection with any amendments, modifications,
enforcement costs, work-out costs, documentary taxes or waivers of the
provisions hereof or thereof (whether or not
the transactions hereby or thereby contemplated shall be consummated) or
incurred by the Administrative Agent, the Collateral Agent or any Lender in
connection with the work-out enforcement or protection of its rights in
connection with this Agreement (including pursuant to Section 9.02 of this
Agreement) and the other Loan Documents or in connection with the Loans made or
Letters of Credit issued hereunder, including the fees, charges and
disbursements of Latham & Watkins, counsel for the Administrative Agent and the
Collateral Agent, and, in connection with any such enforcement or protection,
or work-out, the fees, charges and disbursements of any other counsel for the
Administrative Agent, the Collateral Agent or any Lender.



     (b) The Loan Parties agree, jointly and severally, to indemnify the
Administrative Agent, the Collateral Agent, each Lender, the Issuing Bank and
the Swingline Lender, each Affiliate of any of the foregoing Persons and each
of their respective directors, officers, trustees, employees and agents (each
such Person being called an “Indemnitee”) against, and to hold each Indemnitee
harmless from, all reasonable out-of-pocket costs and any and all losses,
claims, damages, liabilities and related expenses, including reasonable counsel
fees, charges, expenses and disbursements, incurred by or asserted against any
Indemnitee arising out of, in any way connected with, or as a result of (i) the
Transactions, (ii) any actual or proposed use of the proceeds of the Loans or
issuance of Letters of Credit, (iii) any claim, litigation, investigation or
proceeding relating to any of the foregoing, whether or not any Indemnitee is a
party thereto, or (iii) any actual or alleged presence or Release or threatened
Release of Hazardous Materials, on, under or from any Property owned, leased or
operated by any Company, or any Environmental Claim related in any way to any
Company; provided, that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee.



     (c) The provisions of this Section 11.03 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Commitments, the
expiration of any Letter of Credit, the invalidity or unenforceability of any
term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Administrative Agent, the Collateral
Agent, the Issuing Bank or any Lender.



146









 







All amounts due under this Section
11.03 shall be payable on written demand therefor accompanied by reasonable
documentation with respect to any reimbursement, indemnification or other
amount requested.



     (d) To the extent that Borrower fails to pay any amount required to be
paid by it to the Administrative Agent, the Collateral Agent, the Issuing Bank
or the Swingline Lender under paragraph (a) or (b) of this Section 11.03, each
Lender severally agrees to pay to the Administrative Agent, the Collateral
Agent, the Issuing Bank or the Swingline Lender, as the case may be, such
Lender’s pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided, that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against any of the Administrative Agent, the Collateral
Agent, the Issuing Bank or the Swingline Lender in its capacity as such.
For purposes hereof, a Lender’s “pro rata share” shall be determined based upon
its share of the sum of the total Revolving Exposure and unused Commitments at
the time.



     SECTION
11.04 Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), except that
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 Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby (including any Affiliate of the Issuing
Bank that issues any Letter of Credit) and, to the extent expressly
contemplated hereby, the Affiliates of each of the Administrative Agent, the
Issuing Bank and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.



     (b) Any Lender may assign to one or more banks, insurance companies,
investment companies or funds or other institutions (other than Borrower,
Holdings or any Affiliate or Subsidiary thereof) all or a portion of its rights
and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it); provided, that (i) except in
the case of an assignment to a Lender, an Affiliate of a Lender or a Lender
Affiliate, Borrower (except (i) after the occurrence and during the
continuation of a Default or Event of Default or (ii) prior to the completion
of the primary syndication (as determined by Arrangers) of the Commitments and
the Loans by the Arrangers) and the Administrative Agent (and, in the case of
an assignment of all or a portion of a Revolving Commitment or any Lender’s
obligations in respect of its LC Exposure or Swingline Exposure, the Issuing
Bank and the Swingline Lender) must give their prior written consent to such
assignment (which consent shall not be unreasonably withheld or delayed), (ii)
except in the case of an assignment to a Lender, an Affiliate of a Lender or a
Lender Affiliate, any assignment made in connection with the primary
syndication of the Commitment and Loans by the Arrangers or an assignment of
the entire remaining amount of the assigning Lender’s Commitments or Loans, the
amount of the Commitment or Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than in the case of Revolving Commitments and Revolving Loans, $5.0
million unless each of Borrower and the Administrative Agent otherwise



147









 







consent,
(iii) each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lender’s rights and obligations under this Agreement,
except that this clause (iii) shall not be construed to prohibit the assignment
of a proportionate part of all the assigning Lender’s rights and obligations in
respect of one Class of Commitments or Loans, (iv) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, together with a processing and recordation fee of $3,500, and
(v) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; and provided, further
that any consent of Borrower otherwise required under this paragraph shall
not be required if a Default or an Event of Default has occurred and is
continuing. Subject to acceptance and recording thereof pursuant to paragraph
(d) of this Section 11.04(b), from and after the effective date specified in
each Assignment and Acceptance the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Assignment and Acceptance,
have the rights and obligations of a Lender under this Agreement (provided,
that any liability of Borrower to such assignee under Section 2.12, 2.13 or
2.15 shall be limited to the amount, if any, that would have been payable
thereunder by Borrower in the absence of such assignment, except to the extent
any such amounts are attributable to a Change in Law occurring after the date
of such assignment), and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all 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 2.12, 2.13, 2.15 and 11.03). Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this paragraph 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 (e) of this Section 11.04.



     (c) The Administrative Agent, acting for this purpose as an agent of
Borrower, shall maintain at one of its offices in The City of New York a copy
of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”). The entries
in the Register shall be conclusive in the absence of manifest error, and
Borrower, the Administrative Agent, the Collateral Agent, the Issuing Bank and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by Borrower, the Issuing Bank, the Collateral Agent,
the Swingline Lender and any Lender (with respect to its own interest only), at
any reasonable time and from time to time upon reasonable prior notice.



     (d) Upon its receipt of a duly completed Assignment and Acceptance
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 11.04 and any written consent to such assignment required by
paragraph (b) of this Section 11.04, the Administrative Agent shall accept such
Assignment and Acceptance 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.



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     (e) Any Lender may, without the consent of Borrower, the Administrative
Agent, the Issuing Bank or the Swingline Lender, sell participations to one or
more banks or other entities (a “Participant”) in all or a portion of such
Lender’s rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans owing to it); provided, that (i) such
Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) Borrower, the Administrative Agent,
the Collateral Agent, the Issuing Bank and the
other Lenders shall continue to deal solely and directly with such Lender
in connection with such Lender’s rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce the Loan Documents and to approve any amendment, modification or waiver
of any provision of the Loan Documents; provided, that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 11.02(b) that affects such Participant. Subject to
paragraph (f) of this Section 11.04, Borrower agrees that each Participant
shall be entitled to the benefits of Sections 2.12, 2.13 and 2.15 to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (b) of this Section 11.04. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 11.08
as though it were a Lender; provided, that such Participant agrees to be
subject to Section 2.14(c) as though it were a Lender. Each Lender shall,
acting for this purpose as an agent of the Borrower, maintain at one of its
offices a register for the recordation of the names and addresses of its
Participants, and the amount and terms of its participations, provided, that no
Lender shall be required to disclose or share the information contained in such
register with the Borrower or any other party, except as required by applicable
law.



     (f) A Participant shall not be entitled to receive any greater payment
under Section 2.12, 2.13 or 2.15 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 prior
written consent of Borrower (which consent shall not be unreasonably withheld
or delayed). A Participant that would be a Foreign Lender if it were a Lender
shall not be entitled to the benefits of Section 2.15 unless Borrower is
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of Borrower, to comply with Sections 2.15(e) and (f) as
though it were a Lender.



     (g) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section 11.04 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. In the case of any Lender that is a fund that invests in bank loans,
such Lender may, without the consent of Borrower or the Administrative Agent,
collaterally assign or pledge all or any portion of its rights under this
Agreement, including the Loans and Notes or any other instrument evidencing its
rights as a Lender under this Agreement, to any holder of, trustee for, or any
other representative of holders of, obligations owed or securities issued, by
such fund, as security for such obligations or securities; provided, that the
documentation governing or evidencing such collateral assignment or pledge
shall provide that any foreclosure or similar action by such



149









 







trustee or
representative shall be subject to the provisions of this Section 11.04
concerning assignments and shall not be effective to transfer any rights under
this Agreement or in any Loan, Note or other instrument evidencing its rights
as a Lender under this Agreement unless the requirements of Section 11.04
concerning assignments are fully satisfied.



     SECTION 11.05 Survival of Agreement. All covenants, agreements, representations and warranties made by the
Loan Parties in the Loan Documents and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement or any other Loan
Document shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of the Loan Documents and
the making of any Loans and issuance of any Letters of Credit, regardless of
any investigation made by any such other party or on its behalf and
notwithstanding that the Administrative Agent, the Collateral Agent, the
Issuing Bank or any Lender may have had notice or knowledge of any Default or
incorrect representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as the principal
of or any accrued interest on any Loan or any fee or any other amount payable
under this Agreement is outstanding and unpaid or any Letter of Credit is
outstanding and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.12, 2.13, 2.15 and 11.03 and Article X shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Letters of Credit and the Commitments or the termination of
this Agreement or any provision hereof.



     SECTION 11.06 Counterparts; Integration; Effectiveness. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which
when taken together shall constitute a single contract. This Agreement, the
other Loan Documents and the Fee Letter constitute the entire contract among
the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the
subject matter hereof. Except as provided in Section 4.01, this Agreement
shall become effective when it shall have been executed by the Administrative
Agent and when the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other parties
hereto, and thereafter shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.



     SECTION 11.07 Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.



     SECTION 11.08 Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender and each of its Affiliates are hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final, but excluding trust and payroll accounts) at any time
held and other obligations at any time owing by such Lender or Affiliate to



150









 







or for the credit or the account of
Borrower against any of and all the obligations of Borrower now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Lender under
this Section 11.08 are in addition to other rights and remedies (including
other rights of setoff) which such Lender may have.



     SECTION 11.09 Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and governed by the
law of the State of New York, without regard to conflicts of law principles
that would require the application of the laws of another jurisdiction.



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



     (c) Each Loan Party hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or any other Loan Document in any
court referred to in paragraph (b) of this Section 11.09. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.



     (d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 11.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.



     SECTION 11.10 Waiver of Jury Trial. Each party hereto hereby waives, to
the fullest extent permitted by applicable law, any right it may have to a
trial by jury in any legal proceeding directly or indirectly arising out of or
relating to this Agreement, any other Loan Document or the transactions
contemplated hereby (whether based on contract, tort or any other theory).
Each party hereto (a) certifies that no representative, agent or attorney of
any other party has represented, expressly or otherwise, that
such other party would not, in the event of litigation, seek to enforce
the foregoing waiver and (b) acknowledges that it and the other parties



151









 







hereto
have been induced to enter into this Agreement by, among other things, the
mutual waivers and certifications in this Section 11.10.



     SECTION 11.11 Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.



     SECTION 11.12 Confidentiality. Each of the Administrative Agent, the
Collateral Agent, the Issuing Bank and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its and its Affiliates or its Lender Affiliates’
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential pursuant to
the terms hereof), (b) to the extent requested by any regulatory authority, (c)
to the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section 11.12, to
(i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii)
any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to Borrower and its obligations, (g) with the
consent of Borrower or (h) to the extent such Information (i) is publicly
available at the time of disclosure or becomes publicly available other than as
a result of a breach of this Section 11.12 or (ii) becomes available to the
Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender on a
nonconfidential basis from a source other than Borrower or any Subsidiary. For
the purposes of this Section 11.12, “Information” means all information
received from Borrower or any Subsidiary relating to Borrower or any Subsidiary
or its business, other than any such information that is available to the
Administrative Agent, the Issuing Bank or any Lender on a nonconfidential basis
prior to disclosure by Borrower or any Subsidiary; provided, that, in the case
of information received from Borrower or any Subsidiary after the date hereof,
such information is clearly identified at the time of delivery as confidential.
Any Person required to maintain the confidentiality of Information as provided
in this Section 11.12 shall be considered to have complied with its obligation
to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information. Notwithstanding anything to the contrary set forth
herein or in any other written or oral understanding or agreement to which the
parties hereto are parties or by which they are bound, the parties acknowledge
and agree that (i) any obligations of confidentiality contained herein and
therein do not apply and have not applied from the commencement of discussions
between the parties to the tax treatment and tax structure of the Transactions
(and any related transactions or arrangements), and (ii) each party (and each
of its employees, representatives, or other agents) may disclose to any and all
persons, without
limitation of any kind, the tax treatment and tax structure of the
Transactions and all materials of any kind (including opinions or other tax
analyses) that are provided to such party relating to such tax treatment and
tax structure, all within the meaning of Treasury Regulation Section 1.6011-4;
provided, however, that each party recognizes that the privilege each has to
maintain, in its sole discretion, the confidentiality of a communication
relating to the Transaction,



152









 







including a confidential communication with its
attorney or a confidential communication with a federally authorized tax
practitioner under Section 7525 of the Code, is not intended to be affected by
the foregoing.



     SECTION 11.13 Interest Rate Limitation. Notwithstanding anything herein
to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively, the “Charges”), shall exceed
the maximum lawful rate (the “Maximum Rate”) which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section 11.13 shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or
periods shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Effective
Rate to the date of repayment, shall have been received by such Lender.



     SECTION 11.14 Lender Addendum. Each Lender a party to the Prior Credit
Agreement on the Original Closing Date has delivered to the Administrative
Agent a Lender Addendum duly executed by such Lender, the Borrower and the
Administrative Agent. In addition, each Lender to become a party to this
Agreement on the Closing Date shall do so by delivering to the Administrative
Agent a Lender Addendum duly executed by such Lender, the Borrower and the
Administrative Agent.



     SECTION 11.15 Dollar Equivalent Calculations. For purposes of this
Agreement, all valuations or computations of monetary amounts set forth in this
Agreement or the Loan Documents shall include as the context may require the
Dollar Equivalent of amounts of Canadian Dollars and, in any event, valuation
of assets included in the Borrowing Base which are in Canadian Dollars shall be
converted to Dollar Equivalent of such amounts for the purpose of calculating
the Borrowing Base on each date that a Borrowing Base Certificate is delivered
hereunder and at such other times as designated by the Administrative Agent.
Such Dollar Equivalent shall remain in effect until the same is recalculated by
the Administrative Agent as provided above and notice of such recalculation is
received by the Borrower, it being understood that until such notice of such
recalculation is received, the Dollar Equivalent shall be that Dollar
Equivalent as last reported to the Borrower by the Administrative Agent. The
Administrative Agent shall promptly notify the Borrower and the Lenders of each
such determination of the Dollar Equivalent.



     SECTION 11.16 Judgment Currency. (a) The Borrower’s obligation hereunder
and under the other Loan Documents to make payments in Dollars (pursuant to
such obligation, the “Obligation Currency”) shall not be discharged or
satisfied by any tender or recovery pursuant to any judgment expressed in or
converted into any currency other than the Obligation Currency, except to the
extent that such tender or recovery results in the effective receipt by the
Administrative Agent or the respective Lender of the full amount of the
Obligation Currency expressed to be payable to the Administrative Agent or such
Lender under this Agreement or the other Loan Documents. If, for the purpose
of obtaining or enforcing judgment against the



153









 







Borrower in any court or in any
jurisdiction, it becomes necessary to convert into or from any currency other
than the Obligation Currency (such other currency being hereinafter referred to
as the “Judgment Currency”) an amount due in the Obligation Currency, the
conversion shall be made at the Dollar Equivalent, and in the case of other
currencies, the rate of exchange (as quoted by the Administrative Agent or if
the Administrative Agent does not quote a rate of exchange on such currency, by
a known dealer in such currency designated by the Administrative Agent)
determined, in each case, as of the Business Day immediately preceding the day
on which the judgment is given (such Business Day being hereinafter referred to
as the “Judgment Currency Conversion Date”).



     (b) If there is a change in the rate of exchange prevailing between the
Judgment Currency Conversion Date and the date of actual payment of the amount
due, the Borrower covenants and agrees to pay, or cause to be paid, such
additional amounts, if any (but in any event not a lesser amount) as may be
necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
with the amount of Judgment Currency stipulated in the judgment or judicial
award at the rate of exchange prevailing on the Judgment Currency Conversion
Date.



     (c) For purposes of determining the Dollar Equivalent or any other rate of
exchange for this Section 11.16, such amounts shall include any premium and
costs payable in connection with the purchase of the Obligation Currency.



     SECTION 11.17 Patriot Act. Each Lender and Agent (for itself and not on
behalf of any other party) hereby notifies the Borrower that, pursuant to the
requirements of the USA PATRIOT Act, Title III of Pub. L. 107-56, signed into
law October 26, 2001 (the “Act”), it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender
or Agent, as applicable, to identify the Borrower in accordance with the Act.



ARTICLE XII.




AMENDMENT AND RESTATEMENT OF EXISTING CREDIT AGREEMENT




     SECTION 12.01 The parties hereto agree that, on the Closing Date, the
following transactions shall be deemed to occur automatically, without further
action by any party hereto:



     (a) The Prior Credit Agreement shall be deemed to be amended and restated
in its entirety in the form of this Agreement.



     (b) All Existing Obligations (including, without limitation, all Existing
Eurodollar Revolving Borrowings and all Letters of Credit issued pursuant to
the Prior Credit Agreement) shall in all respects be continuing after the
Closing Date and shall be deemed to be Obligations governed by this Agreement.



     (c) This Agreement shall not be deemed to evidence or result in a novation
or repayment of the Existing Eurodollar Revolving Borrowings and reborrowing
hereunder, but the Existing Obligations under the Prior Credit Agreement and
the Liens securing payment and performance



154









 







thereof shall in all respects be
continuing as Obligations under this Agreement and as Liens securing payment
and performance thereof.



     (d) All references in the Loan Documents executed in connection with the
Prior Credit Agreement (collectively, the “Prior Other Loan Documents”) to (i)
the Prior Credit Agreement or the “Credit Agreement” shall be deemed to include
references to this Agreement, as amended, restated, supplemented or otherwise
modified from time to time, and (ii) the “Lenders” or a “Lender”, the
“Administrative Agent”, or the “Collateral Agent” shall mean such terms as
defined in this Agreement (collectively, the “Prior Loan Documents”). The
Prior Other Loan Documents that are not superseded by corresponding Loan
Documents executed and delivered in connection with this Agreement shall remain
in full force and effect.



     (e) Each Credit Party hereby acknowledges and agrees that each of the
Prior Other Loan Documents to which such Credit Party is a party remains in
full force and effect and hereby ratifies and reaffirms all of its respective
payment and performance obligations, contingent or otherwise, under each of the
Prior Other Loan Documents to which it is a party and, to the extent such
Credit Party granted Liens on or security interests in any of its properties
pursuant to any of the Prior Other Loan Documents as security for the Existing
Obligations, such Credit Party, as the case may be, hereby ratifies and
reaffirms such grant of security and confirms and agrees that such Liens and
security interests secure all of the Obligations under this Agreement and
remain in full force and effect after giving effect to this Agreement. The
execution, delivery and effectiveness of this Agreement shall not operate as a
waiver of any right, power or remedy of the Administrative Agent or the
Collateral Agent or any Lender under the Prior Credit Agreement or any Prior
Other Loan Document, nor constitute a waiver of any provision of the Prior
Credit Agreement or any Prior Other Loan Document, except as specifically set
forth therein.



     (f) The agency fee and the collateral monitoring fee as set forth in the
Fee Letter shall be due and payable on each anniversary of the Original Closing
Date and shall continue to accrue under the Fee Letter.



     SECTION 12.02 Borrower and each Credit Party acknowledges and agrees that
as of close of business on October [22], 2004, the outstanding principal
balance of the Existing Eurodollar Revolving Borrowings (excluding accrued
interest thereon and fees and expenses (including professional fees and
expenses) related thereto) under the Prior Credit Agreement was [$100.0
million] and that neither Borrower nor any other Credit Party or other Person

has any defense, counterclaim or setoff with respect to the payment thereof.



     SECTION 12.03 Each Lender hereunder that was a party to the Prior Credit
Agreement immediately prior to the Closing Date agrees that its “Commitments”
(as defined in the Prior Credit Agreement) shall be replaced with the
Commitments of such Lender hereunder. On the Closing Date, each Lender shall
make payments to, or receive payments from, the Administrative Agent such that
each Lender shall have funded its Pro Rata Percentage of each Loan for which
such Lender has a Commitment.



[Signature Pages Follow]




155









 








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


	 	 	 	 	 
	 	GENERAL CABLE INDUSTRIES, INC., as the

Borrower

 	 
	 	By:  	   /s/ Robert J. Siverd
 	 
	 	 	Name:  	Robert J. Siverd 	 
	 	 	Title:  	Executive Vice President 	 
	 



	 	 	 	 	 
	 	GENERAL CABLE COMPANY, as a Loan Party,

Guarantor and Borrowing Base Guarantor

 	 
	 	By:  	   /s/ Robert J. Siverd
 	 
	 	 	Name:  	Robert J. Siverd 	 
	 	 	Title:  	Executive Vice President 	 
	 



	 	 	 	 	 
	 	GENERAL CABLE CORPORATION, as a Loan Party,

Borrowing Base Guarantor and Guarantor

 	 
	 	By:  	   /s/ Robert J. Siverd
 	 
	 	 	Name:  	Robert J. Siverd 	 
	 	 	Title:  	Executive Vice President 	 
	 



	 	 	 	 	 
	 	GK TECHNOLOGIES, INCORPORATED, as a Loan

Party, Borrowing Base Guarantor and Guarantor

 	 
	 	By:  	   /s/ Robert J. Siverd
 	 
	 	 	Name:  	Robert J. Siverd 	 
	 	 	Title:  	Executive Vice President 	 
	 



	 	 	 	 	 
	 	GENERAL CABLE INDUSTRIES, LLC, as a Loan

Party, Borrowing Base Guarantor and Guarantor

 	 
	 	By:  	   /s/ Robert J. Siverd
 	 
	 	 	Name:  	Robert J. Siverd 	 
	 	 	Title:  	Executive Vice President 	 
	 




[Signature Page to Amended and Restated Credit Agreement]






 









 








	 	 	 	 	 
	 	GENERAL CABLE TECHNOLOGIES CORPORATION, as a Loan Party, Borrowing Base Guarantor and Guarantor

 	 
	 	By:  	   /s/ Robert J. Siverd
 	 
	 	 	Name:  	Robert J. Siverd 	 
	 	 	Title:  	Executive Vice President 	 
	 



	 	 	 	 	 
	 	GENERAL CABLE TEXAS OPERATIONS, L.P., as a Loan Party, Borrowing Base Guarantor and

Guarantor 



By: GENERAL CABLE INDUSTRIES, INC., its

general partner

 	 
	 	 	By:  	   /s/ Robert J. Siverd
 	 
	 	 	Name:  	Robert J. Siverd 	 
	 	 	Title:  	Executive Vice President 	 
	 



	 	 	 	 	 
	 	MARATHON MANUFACTURING HOLDINGS, INC., as
a Loan Party and Guarantor

 	 
	 	By:  	   /s/ Robert J. Siverd
 	 
	 	 	Name:  	Robert J. Siverd 	 
	 	 	Title:  	Executive Vice President 	 
	 



	 	 	 	 	 
	 	GENERAL CABLE OVERSEAS HOLDINGS, INC., as
a Loan Party and Guarantor

 	 
	 	By:  	   /s/ Robert J. Siverd
 	 
	 	 	Name:  	Robert J. Siverd 	 
	 	 	Title:  	Executive Vice President 	 
	 



	 	 	 	 	 
	 	GENERAL CABLE MANAGEMENT LLC, as a Loan

Party and Guarantor

 	 
	 	By:  	   /s/ Robert J. Siverd
 	 
	 	 	Name:  	Robert J. Siverd 	 
	 	 	Title:  	Executive Vice President 	 



7









 






	 	 	 	 	 



	 	 	 	 	 
	 	DIVERSIFIED CONTRACTORS, INC., as a Loan

Party and Guarantor

 	 
	 	By:  	   /s/ Robert J. Siverd
 	 
	 	 	Name:  	Robert J. Siverd 	 
	 	 	Title:  	Executive Vice President 	 
	 



	 	 	 	 	 
	 	MLTC COMPANY, as a Loan Party and Guarantor

 	 
	 	By:  	   /s/ Robert J. Siverd
 	 
	 	 	Name:  	Robert J. Siverd 	 
	 	 	Title:  	Executive Vice President 	 
	 



	 	 	 	 	 
	 	MARATHON STEEL COMPANY, as a Loan Party and

Guarantor

 	 
	 	By:  	   /s/ Robert J. Siverd
 	 
	 	 	Name:  	Robert J. Siverd 	 
	 	 	Title:  	Executive Vice President 	 



8









 






	 	 	 	 	 



	 	 	 	 	 
	 	GENCA CORPORATION, as a Loan Party and

Guarantor

 	 
	 	By:  	   /s/ Robert J. Siverd
 	 
	 	 	Name:  	Robert J. Siverd 	 
	 	 	Title:  	Executive Vice President 	 
	 



	 	 	 	 	 
	 	GENERAL CABLE CANADA LTD., as a Loan Party

and Guarantor

 	 
	 	By:  	   /s/ Robert J. Siverd
 	 
	 	 	Name:  	Robert J. Siverd 	 
	 	 	Title:  	Executive Vice President 	 
	 



	 	 	 	 	 
	 	GENERAL CABLE DE MEXICO DEL NORTE SA DE
CV, as a Loan Party and Guarantor

 	 
	 	By:  	   /s/ Robert J. Siverd
 	 
	 	 	Name:  	Robert J. Siverd 	 
	 	 	Title:  	Executive Vice President 	 
	 



	 	 	 	 	 
	 	GENERAL CABLE DE LATINOAMERICA, SA DE CV, as a Loan Party and Guarantor

 	 
	 	By:  	   /s/ Robert J. Siverd
 	 
	 	 	Name:  	Robert J. Siverd 	 
	 	 	Title:  	Executive Vice President 	 



9









 






	 	 	 	 	 



	 	 	 	 	 
	 	MERRILL LYNCH CAPITAL, a division of

Merrill Lynch Business Financial Services Inc.,

as a Lender, Collateral Agent and Syndication Agent

 	 
	 	By:  	   /s/ Merrill Lynch Capital
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	UBS AG, STAMFORD BRANCH,

as Issuing Bank and Administrative Agent

 	 
	 	By:  	   /s/ UBS AG
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:	    /s/ UBS AG
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	UBS LOAN FINANCE LLC, as a Lender

and Swingline Lender

 	 
	 	By:  	   /s/ UBS Loan Finance LLC
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:	   /s/ UBS Loan Finance LLC
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




	 	 	                                               , a Lender




	 	 	 	 	 
	 	 	 
	 	By:	   /s/ UBS Loan Finance LLC
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





10









 








ANNEX I




Applicable Margin




	 	 	 	 	 	 	 	 	 
	 	 	 
	Fixed Charge	 	Revolving Loans

	Coverage Ratio
	 	Eurodollar
	 	ABR

	Level I: < 1.15:1.00
	 	 	2.50	%	 	 	1.25	%
	Level II: > 1.15:1.00, but
< 1.50:1.00
	 	 	2.25	%	 	 	1.00	%
	Level III: > 1.50:1.00
	 	 	2.00	%	 	 	0.75	%







     Each change in the Applicable Margin resulting from a change in the
Consolidated Fixed Charge Coverage Ratio shall be effective with respect to all
Loans and Letters of Credit outstanding on and after the date of delivery to
the Administrative Agent of the financial statements and certificates required
by Section 5.01(a) or (b) and Section 5.01(d), respectively, indicating such
change until the date immediately preceding the next date of delivery of such
financial statements and certificates indicating another such change.
Notwithstanding the foregoing, the Consolidated Fixed Charge Coverage Ratio
shall be deemed to be in Level I for purposes of determining the Applicable
Margin (i) at any time during which Borrower has failed to deliver the
financial statements and certificates required by Section 5.01(a) or (b) and
Section 5.01(d), respectively, and (ii) at any time during the existence of an
Event of Default.




11