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EXHIBIT 10.1   $230,000,000 Senior Secured Credit Facilities CREDIT AGREEMENT    DOANE PET CARE COMPANY, as Borrower,
 DOANE PET CARE ENTERPRISES, INC. as a
Guarantor
 and CREDIT SUISSE FIRST BOSTON,
acting through its Cayman Islands Branch,
as Administrative Agent, Collateral Agent, Sole Bookrunner and Sole Lead Arranger Dated as of November 5, 2004    CREDIT AGREEMENT




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TABLE OF CONTENTS PageSECTION 1. DEFINITIONS
    
    
    21.1 Defined Terms
    
    
    21.2 Other Definitional Provisions
    
    
    24SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
    
    
    252.1 Term Commitments (A)
    
    
    252.2 Procedure for Term Loan Borrowing
    
    
    252.3 Repayment of Term Loans (A)
    
    
    262.4 Revolving Commitments
    
    
    262.5 Procedure for Revolving Loan Borrowing
    
    
    272.6 Swingline Commitment
    
    
    282.7 Procedure for Swingline Borrowing; Refunding of Swingline Loans
    
    
    282.8 Funding by Lenders, Borrowers; Presumptions by Administrative Agent
    
    
    302.9
Commitment Fees, Etc.
    
    
    312.10 Termination or Reduction of Revolving Commitments
    
    
    312.11 Optional Prepayments
    
    
    312.12 Mandatory Prepayments and Commitment Reductions
    
    
    322.13 Conversion and Continuation Options
    
    
    332.14 Limitations on Eurodollar Tranches
    
    
    342.15 Interest Rates and Payment Dates
    
    
    342.16 Computation of Interest and Fees
    
    
    352.17 Inability to Determine Interest Rate
    
    
    352.18 Pro Rata Treatment and Payments
    
    
    362.19 Increased Costs
    
    
    362.20 Taxes
    
    
    382.21 Indemnity
    
    
    402.22 Change of Lending Office
    
    
    402.23 Replacement of Lenders
    
    
    40SECTION 3. LETTERS OF CREDIT
    
    
    413.1 L/C Commitment
    
    
    413.2 Procedure for Issuance of Letter of Credit
    
    
    413.3 Fees and Other Charges
    
    
    423.4 L/C Participations
    
    
    423.5 Reimbursement Obligation of the Borrower
    
    
    433.6 Obligations Absolute
    
    
    433.7 Letter of Credit Payments
    
    
    443.8 Applications
    
    
    44SECTION 4. REPRESENTATIONS AND WARRANTIES
    
    
    444.1 Financial Condition
    
    
    444.2 No Change
    
    
    454.3 Corporate Existence; Compliance with Law
    
    
    454.4 Corporate Power; Authorization; Enforceable Obligations
    
    
    454.5 No Legal Bar
    
    
    454.6 Litigation
    
    
    464.7 No Default
    
    
    46
 CREDIT AGREEMENT




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Page4.8 Ownership of Property; Liens
    
    
    464.9 Intellectual Property
    
    
    474.10 Taxes
    
    
    474.11 Federal Regulations
    
    
    474.12 Labor Matters
    
    
    474.13 ERISA
    
    
    474.14 Investment Company Act; Other Regulations
    
    
    484.15 Subsidiaries
    
    
    484.16 Use of Proceeds
    
    
    484.17 Environmental Matters
    
    
    494.18
Accuracy of Information, Etc.
    
    
    494.19 Security Documents
    
    
    504.20 Solvency
    
    
    504.21 Senior Indebtedness
    
    
    514.22 Regulation H
    
    
    514.23 Mortgaged Properties
    
    
    51SECTION 5. CONDITIONS PRECEDENT
    
    
    515.1 Conditions to Effectiveness
    
    
    515.2 Conditions to Each Extension of Credit
    
    
    51SECTION 6. AFFIRMATIVE COVENANTS
    
    
    546.1 Financial Statements
    
    
    546.2 Certificates; Other Information
    
    
    556.3 Payment of Obligations
    
    
    566.4 Maintenance of Existence; Compliance
    
    
    566.5 Maintenance of Property; Insurance
    
    
    566.6 Inspection of Property; Books and Records; Discussions
    
    
    576.7 Notices
    
    
    576.8 Environmental Laws
    
    
    586.9 Interest Rate Protection
    
    
    586.10
Additional Collateral, Etc.
    
    
    586.11 No Speculative Transactions
    
    
    606.12 Credit Rating
    
    
    606.13 Post Closing Obligations
    
    
    60SECTION 7. NEGATIVE COVENANTS
    
    
    617.1 Financial Condition Covenants
    
    
    617.2 Indebtedness
    
    
    627.3 Liens
    
    
    637.4 Fundamental Changes
    
    
    647.5 Disposition of Property
    
    
    657.6 Restricted Payments
    
    
    657.7 Capital Expenditures
    
    
    667.8 Investments
    
    
    667.9 Optional Payments and Modifications of Certain Debt Instruments
    
    
    677.10 Transactions with Affiliates
    
    
    687.11 Sales and Leasebacks
    
    
    687.12 Changes in Fiscal Periods
    
    
    687.13 Negative Pledge Clauses
    
    
    687.14 Clauses Restricting Restricted Subsidiary Distributions
    
    
    697.15 Lines of Business
    
    
    697.16 Issuances of Preferred Stock
    
    
    69SECTION 8. EVENTS OF DEFAULT
    
    
    69SECTION 9. THE AGENTS
    
    
    72
 CREDIT AGREEMENT




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Page9.1 Appointment and Authority
    
    
    729.2 Rights as a Lender.
    
    
    729.3 Exculpatory Provisions
    
    
    739.4 Reliance by the Agent
    
    
    739.5 Delegation of Duties
    
    
    749.6 Resignation of Administrative Agent
    
    
    749.7 Non-Reliance on Agents and Other Lenders
    
    
    759.8 No Other
Duties, Etc.
    
    
    759.9 Authorization to Release Guarantees and Liens
    
    
    75SECTION 10. MISCELLANEOUS
    
    
    7510.1 Amendments and Waivers
    
    
    7510.2 Notices
    
    
    7710.3 No Waiver; Cumulative Remedies
    
    
    7910.4 Survival of Representations and Warranties
    
    
    7910.5 Expenses, Indemnity; Damage Waiver
    
    
    7910.6 Successors and Assigns; Participations and Assignments
    
    
    8010.7 Right of Set-off
    
    
    8510.8 Sharing of Payments by Lenders
    
    
    8610.9 Severability
    
    
    8610.10 [Reserved]
    
    
    8610.11 Obligations Several; Independent Nature of the Lenders Rights
    
    
    8610.12 Governing Law.
    
    
    8710.13 Submission To Jurisdiction; Waivers
    
    
    8710.14 Acknowledgments
    
    
    8710.15 Confidentiality
    
    
    8810.16 Waiver of Jury Trial
    
    
    8810.17 Counterparts; Integration; Electronic Effectiveness
    
    
    8810.18 Maximum Amount
    
    
    89
 CREDIT AGREEMENT




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ANNEX: A
    
    Sources and Uses Table
 SCHEDULES: 1.1A
    
    Commitments4.1
    
    Material Leases/Commitments4.4
    
    Consents, Authorizations, Filings and Notices4.6
    
    Litigation; Claims4.8
    
    Real Property4.9
    
    Intellectual Property Claims4.13
    
    ERISA Terminations4.15
    
    Subsidiaries4.19(a)
    
    UCC Filing Jurisdictions4.19(b)
    
    Mortgage Filing Jurisdictions4.22
    
    Flood Zone Properties5.1(l)
    
    Certain Properties6.13
    
    Post-Closing Schedule7.2(e)
    
    Existing Indebtedness7.3(f)
    
    Existing Liens7.5
    
    Permitted Dispositions7.8(j)
    
    Existing Joint Ventures7.10
    
    Transactions with Affiliates
 EXHIBITS: A
    
    Form of Guarantee and Collateral AgreementB
    
    Form of Compliance CertificateC
    
    Form of Secretarys CertificateD
    
    Form of MortgageE
    
    Form of Assignment and AssumptionF
    
    Form of Legal Opinion of Counsel for the BorrowerH
    
    Financial Condition CertificateI-1
    
    Form of Term Loan NoteI-2
    
    Form of Revolving NoteI-3
    
    Form of Swingline Note
 CREDIT AGREEMENT




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CREDIT AGREEMENT, dated as of November 5, 2004, among DOANE PET CARE
ENTERPRISES, INC., a Delaware corporation (Holdings), DOANE PET CARE COMPANY,
a Delaware corporation (the Borrower), the several banks and other financial
institutions or entities from time to time parties to this Agreement (the
Lenders) and Credit Suisse First Boston (CSFB), acting through its Cayman
Islands Branch, as administrative agent for the Lenders (in such capacity, the
Administrative Agent), as sole bookrunner, sole lead arranger and as
collateral agent for the Lenders (in such capacity, the Collateral Agent). RECITALS WHEREAS,capitalized terms used in these Recitals shall have the
respective meanings set forth for such terms in Section 1; WHEREAS,Holdings and the Borrower entered into a bank credit facility
with JPMorgan Chase Bank (f/k/a The Chase Manhattan Bank) and certain other
lenders dated as of November 12, 1998 and amended and restated as of May 8,
2000 (as amended, the Existing Credit Facilities); WHEREAS, the Lenders have agreed, severally and not jointly, to extend
certain credit facilities to the Borrower, in an aggregate amount not to exceed
$230,000,000, consisting of $195,000,000 aggregate principal amount of Term
Loans and $35,000,000 aggregate principal amount of Revolving Loan Commitments; WHEREAS,the proceeds of the Term Loans will be used by the Borrower (i)
to repay in full all obligations under the Existing Credit Facilities, (ii) to
pay related fees and expenses, and (iii) for other general corporate purposes; WHEREAS,the proceeds of borrowings under the Revolving Loans (including
Swing Line Loans) will be used for working capital and general corporate
purposes; WHEREAS,the Borrower has agreed to secure all of its Obligations by
granting to Collateral Agent, for the benefit of Secured Parties, a First
Priority Lien on substantially all of its assets, including a pledge of all of
the Capital Stock of each of its Domestic Subsidiaries and 65% of all the
Capital Stock of each of its first-tier Foreign Subsidiaries, subject in each
case to liens permitted herein; WHEREAS,the Guarantors (other than Holdings) have agreed to guarantee the
obligations of the Borrower hereunder and to secure their respective
Obligations by granting to Collateral Agent, for the benefit of Secured
Parties, a First Priority Lien on substantially all of their respective assets,
including a pledge of all of the Capital Stock of each of their respective
Domestic Subsidiaries (other than Doane International Pet Products LLC to the
extent such pledge is prohibited by its limited liability company agreement)
and 65% of all the Capital Stock of each of their respective first-tier
Foreign Subsidiaries; and CREDIT AGREEMENT




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WHEREAS,Holdings has agreed to guarantee the obligations of the Borrower
hereunder to secure its Obligations by granting to the Collateral Agent, for
the benefit of the Secured Parties, a First Priority Lien on all of its
interests in the Borrower. NOW, THEREFORE,in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows: SECTION 1. DEFINITIONS 1.1 Defined Terms As used in this Agreement, the terms listed in this Section 1.1 shall
have the respective meanings set forth in this Section 1.1. ABR: for any day, a rate per annum (rounded upwards, if necessary, to
the next 1/16 of 1%) equal to the greatest of (a) the Prime Rate in effect on
such day, and (b) the Federal Funds Effective Rate in effect on such day plus
1/2 of 1%. For purposes hereof: Prime Rate shall mean the rate of
interest per annum publicly announced from time to time by the Reference Lender
as its prime rate in effect at its principal office in New York City (the Prime
Rate not being intended to be the lowest rate of interest charged by the
Reference Lender in connection with extensions of credit to debtors). Any
change in the ABR due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on the
effective day of such change in the Prime Rate or the Federal Funds Effective
Rate, respectively. ABR Loans: Loans the rate of interest applicable to which is based upon
the ABR. Adjusted LIBO Rate: means, with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum determined
for such day in accordance with the following formula: LIBO Rate 
  Administrative Agent: CSFB, together with its affiliates, as the
administrative agent for the Lenders under this Agreement and the other Loan
Documents, together with any of its successors. Administrative Questionnaire: an Administrative Questionnaire in a form
supplied by the Administrative Agent. Affected Interest Period: as defined in Section 2.17(a). Affiliate: with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. Agents: the collective reference to the Administrative Agent and the
Collateral Agent. CREDIT AGREEMENT 2




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Agreement: this Credit Agreement, as amended, supplemented, restated or
otherwise modified from time to time. Applicable Margin: (i) with respect to Term Loans that are ABR Loans,
3.00%, (ii) with respect to Term Loans that are Eurodollar Loans 4.00%, (iii)
with respect to Revolving Loans that are ABR Loans, 3.50% and (iv) with respect
to Revolving Loans that are Eurodollar Loans, 4.50%. Applicable Percentage: (i) with respect to any Lenders obligation to
make Revolving Loans, the percentage of the Total Revolving Commitments
represented by such Lenders Revolving Commitment, (ii) with respect to any
Lenders obligation to make a Term Loan, the percentage of the aggregate Term
Commitments represented by such Lenders Term Commitment, and (iii) with
respect to all other matters, a fraction, expressed as a percentage, the
numerator of which is equal to the sum of (x) such Lenders Revolving
Commitment, or if the Revolving Commitments have terminated or expired, such
Lenders Revolving Extensions of Credit, plus (y) the outstanding principal
amount of such Lenders Term Loan, and the denominator of which is equal to the
sum of (x) the Total Revolving Commitment, or if the Revolving Commitments have
terminated or expired, the Total Revolving Extensions of Credit, plus (y) the
outstanding principal amount of the Term Loans. The Applicable Percentages
shall be determined giving effect to any assignments. Application: an application, in such form as an Issuing Bank may
specify from time to time, requesting such Issuing Bank to open a Letter of
Credit. Approved Fund: any Fund that is administered, advised or managed by (a)
a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers, advises or manages a Lender. Asset Sale: any Disposition of property or series of related
Dispositions of property by the Borrower or any of its Restricted Subsidiaries
(excluding any such Disposition permitted by clauses (a), (b), (c), (d), (e) or
(f) of Section 7.5). Assignment and Assumption: an assignment and assumption entered into by
a Lender and an Eligible Assignee (with the consent of any party whose consent
is required by Section 10.6), and accepted by the Administrative Agent, in
substantially the form of Exhibit E or any other form approved by the
Administrative Agent. Available Revolving Commitment: as to any Revolving Lender at any time,
an amount equal to the excess, if any, of (a) such Lenders Revolving
Commitment then in effect over (b) such Lenders Revolving Extensions of Credit
then outstanding; provided that in calculating any Lenders Revolving
Extensions of Credit for the purpose of determining such Lenders Available
Revolving Commitment pursuant to Section 2.9(a), the aggregate principal amount
of Swingline Loans then outstanding shall be deemed to be zero. Board: the Board of Governors of the Federal Reserve System of the
United States (or any successor). CREDIT AGREEMENT 3




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Borrower: as defined in the preamble hereto. Borrowing Date: any Business Day specified by the Borrower as a date on
which the Borrower requests the relevant Lenders to make Loans hereunder. Budgets: as defined in Section 6.2(c). Business: as defined in Section 4.17(b). Business Day: a day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to close;
provided that with respect to notices and determinations in connection with,
and payments of principal and interest on, and continuations and conversions of
Eurodollar Loans, such day is also a day for trading by and between banks in
Dollar deposits in the interbank eurodollar market. Capital Expenditures: for any period, the aggregate of all expenditures
by the Borrower and its Restricted Subsidiaries for the acquisition or leasing
(pursuant to a capital lease) of fixed or capital assets or additions to
equipment (including replacements, capitalized repairs and improvements during
such period) that should be capitalized under GAAP on a consolidated balance
sheet of the Borrower and its Restricted Subsidiaries; but excluding
expenditures made with Net Cash Proceeds received by the Borrower or any of its
Restricted Subsidiaries in connection with a Recovery Event that are not
applied to prepay the Term Loans or reduce the Revolving Commitments pursuant
to Section 2.12(b) as a result of the delivery of a Reinvestment Notice. Capital Lease Obligations: as to any Person, the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination
thereof, which obligations are required to be classified and accounted for as
capital leases on a balance sheet of such Person under GAAP and, for the
purposes of this Agreement, the amount of such obligations at any time shall be
the capitalized amount thereof at such time determined in accordance with GAAP. Capital Stock: any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants, rights or options to purchase any of the foregoing. Cash Equivalents: (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition; (b)
certificates of deposit, time deposits, eurodollar time deposits or overnight
bank deposits having maturities of six months or less from the date of
acquisition issued by any Lender or by any commercial bank organized under the
laws of the United States or any state thereof having combined capital and
surplus of not less than $500,000,000; (c) commercial paper of an issuer rated
at least A-1 by Standard & Poors Ratings Services (S&P) or P-1 by Moodys
Investors Service, Inc. (Moodys) or F1 by Fitch IBCA, Inc., or carrying an
equivalent rating by a nationally recognized rating agency, if two of the named
rating agencies cease publishing short-term or commercial paper ratings
generally, and maturing within six months from the date of acquisition; CREDIT AGREEMENT 4




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(d) repurchase obligations of any commercial bank satisfying the
requirements of clause (b) of this definition, having a term of not more than
30 days, with respect to securities issued or fully guaranteed or insured by
the United States government; (e) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States, by any political subdivision or
taxing authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be) are
rated the highest rating applicable by S&P or by Moodys; (f) securities with
maturities of six months or less from the date of acquisition backed by standby
letters of credit issued by any commercial bank satisfying the requirements of
clause (b) of this definition; (g) marketable direct obligations issued by or
unconditionally guaranteed by the government of any member of the European
Union or issued by any agency thereof and backed by the full faith and credit
of such government, in each case maturing within one year from the date of
acquisition; (h) certificates of deposit, time deposits or other deposit
accounts in any currency maintained in the ordinary course of business by the
Borrower or any of its Foreign Subsidiaries in any currency having maturities
of six months or less from the date of creation or available on demand with any
banking entity or trust company organized in a country in which such Subsidiary
is doing business or in which it owns property; or (i) shares of money market
mutual or similar funds which invest exclusively in assets satisfying the
requirements of clauses (a) through (h) of this definition. Change in Law : the occurrence, after the date of this Agreement, of any
of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any
Governmental Authority or (c) the making or issuance of any request, guideline
or directive (whether or not having the force of law) by any Governmental
Authority. Change of Control: (i) (a) prior to the consummation of an initial
public offering of the Capital Stock of the Borrower or Holdings (an IPO),
the Permitted Investors shall cease to beneficially own and control greater
than 50% of the combined voting power of all of the Capital Stock of Holdings
and (b) following the consummation of an IPO, (x) any Person or any two or more
Persons acting in concert shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, of more than 30% of the Capital Stock of Holdings (or other
Securities convertible into such Capital Stock) or (y) Permitted Investors
cease to own at least 35% of common stock of Holdings, (ii) any Person or
group (within the meaning of Rules 13(d)-3 and 13(d)-5 under the Exchange
Act) other than the Permitted Investors shall have obtained the power (whether
or not exercised) to elect a majority of the members of the board of directors
(or similar governing body) of the Borrower, (iii) the Board of Directors of
Holdings cease to consist of a majority of Continuing Directors; (iv) the
Borrower becomes obligated to redeem or repurchase its bonds, notes or other
securities having an aggregate face value in excess of $5,000,000; or (v)
Holdings and other Permitted Investors shall cease to own 100% of the Capital
Stock of the Borrower (other than Preferred Stock). Clinton IDB: the $9,000,000 The Oklahoma Development Finance Authority
Industrial Development Bonds, Series 1998 (Doane Products Company Clinton,
Oklahoma Project) dated as of July 15, 1998 and all loan agreements, mortgages,
security agreements, promissory notes executed and delivered in connection
therewith. CREDIT AGREEMENT 5




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Closing Date: the date (which shall not be later than December 31,
2004) on which the conditions to the effectiveness of this Agreement set forth
in Sections 5.1 and 5.2 shall have been satisfied. Code: the Internal Revenue Code of 1986, as amended from time to time. Collateral: all property of the Loan Parties, now owned or hereafter
acquired, upon which a Lien is purported to be created by any Security
Document. Collateral Agent: CSFB, together with its affiliates, as the collateral
agent for the Lenders under this Agreement and the other Loan Documents,
together with any of its successors. Commitment: as to any Lender, the sum of the Term Commitment and the
Revolving Commitment of such Lender. Commitment Fee Rate: 0.75% per annum. Commonly Controlled Entity: an entity, whether or not incorporated,
that is under common control with the Borrower within the meaning of Section
4001 of ERISA or is part of a group that includes the Borrower and that is
treated as a single employer under Section 414 of the Code. Compliance Certificate: a certificate duly executed by a Responsible
Officer substantially in the form of Exhibit B. Confidential Information Memorandum: the Confidential Information
Memorandum dated October, 2004 and furnished to the Lenders. Consolidated Current Assets: at any date, all amounts (other than cash
and Cash Equivalents) that would, in conformity with GAAP, be set forth
opposite the caption total current assets (or any like caption) on a
consolidated balance sheet of the Borrower and its Restricted Subsidiaries at
such date. Consolidated Current Liabilities: at any date, all amounts that would,
in conformity with GAAP, be set forth opposite the caption total current
liabilities (or any like caption) on a consolidated balance sheet of the
Borrower and its Restricted Subsidiaries at such date, but excluding (a) the
current portion of any Funded Debt of the Borrower and its Restricted
Subsidiaries and (b) without duplication of clause (a) above, all Indebtedness
consisting of Revolving Loans or Swingline Loans to the extent otherwise
included therein. Consolidated EBITDA: for any period, Consolidated Net Income for such
period plus, without duplication and to the extent reflected as a charge in the
statement of such Consolidated Net Income for such period, the sum of (a)
income tax expense, (b) Consolidated Interest Expense, (c) non-cash
depreciation and amortization expense, (e) any extraordinary, unusual,
transition or non-recurring expenses or losses (including, whether or not
otherwise includable as a separate item in the statement of such Consolidated
Net Income for such period, non-cash losses on sales of assets outside of the
ordinary course of business) and (f) any other non- CREDIT AGREEMENT 6




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cash charges (provided that any non-cash charges added back cannot be
duplicated at the time of the related cash payment) and minus, to the extent
included in the statement of such Consolidated Net Income for such period, the
sum of (a) interest income, (b) any extraordinary, unusual or non-recurring
non-cash income or non-cash gains (including, whether or not otherwise
includable as a separate item in the statement of such Consolidated Net Income
for such period, gains on the sales of assets outside of the ordinary course of
business) and (c) any other non-cash income, all as determined on a
consolidated basis. For the purposes of calculating Consolidated EBITDA for any period (each,
a Reference Period) pursuant to any determination of the financial covenants,
(i) if at any time during such Reference Period the Borrower or any Restricted
Subsidiary shall have made any Material Disposition, the Consolidated EBITDA
for such Reference Period shall be reduced by an amount equal to the
Consolidated EBITDA (if positive) attributable to the property that is the
subject of such Material Disposition for such Reference Period or increased by
an amount equal to the Consolidated EBITDA (if negative) attributable thereto
for such Reference Period and (ii) if during such Reference Period the Borrower
or any Restricted Subsidiary shall have made a Material Acquisition,
Consolidated EBITDA for such Reference Period shall be calculated after giving
pro forma effect thereto as if such Material Acquisition occurred on the first
day of such Reference Period, and after giving effect to any credit received
for certain costs and savings recognized by the SEC (the SEC Cost Savings)
associated with such Material Acquisition. As used in this definition,
Material Acquisition means any acquisition of property or series of related
acquisitions of property that (a) constitutes assets comprising all or
substantially all of an operating unit of a business or constitutes all or
substantially all of the common stock of a Person and (b) involves the payment
of consideration by the Borrower and its Restricted Subsidiaries in excess of
$2,500,000 (or its equivalent in other currencies as of the date of such
acquisition or the last of the series of such acquisitions, as determined by
the Borrower in good faith based on then prevailing exchange rates); and
Material Disposition means any Disposition of property or series of related
Dispositions of property that yields gross proceeds to the Borrower or any of
its Restricted Subsidiaries in excess of $2,500,000 (or its equivalent in other
currencies as of the date of such Disposition or the last of the series of such
Dispositions, as determined by the Borrower in good faith based on then
prevailing exchange rates). Consolidated Interest Expense: for any period, total interest expense
(including that attributable to Capital Lease Obligations) of the Borrower and
its Restricted Subsidiaries for such period with respect to all outstanding
Indebtedness of the Borrower and its Restricted Subsidiaries (including net
costs or net gains under Hedge Agreements in respect of interest rates to the
extent such net costs or net gains are allocable to such period in accordance
with GAAP). Consolidated Net Income: for any period, the consolidated net income
(or loss) of the Borrower and its Restricted Subsidiaries, determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the income (or deficit) of any Person accrued prior to the date it
becomes a Restricted Subsidiary of the Borrower or is merged into or
consolidated with the Borrower or any of its Restricted Subsidiaries, except
(i) any Unrestricted Subsidiary of the Borrower that is redesignated as a
Restricted Subsidiary at any time and (ii) as provided in the penultimate
sentence in the definition of Consolidated EBITDA, (b) the income (or
deficit) of any Person (other than a Restricted Subsidiary of the Borrower) in
which the Borrower or any of its CREDIT AGREEMENT 7




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Restricted Subsidiaries has an ownership interest, except to the extent
that any such income is actually received by the Borrower or such Restricted
Subsidiary in the form of dividends or similar distributions and (c) the
undistributed earnings of any Restricted Subsidiary of the Borrower to the
extent that the declaration or payment of dividends or similar distributions by
such Restricted Subsidiary is not at the time permitted by the terms of any
Contractual Obligation (other than under any Loan Document) or Requirement of
Law applicable to such Restricted Subsidiary. Notwithstanding anything herein
to the contrary, solely for purposes of determining Consolidated Net Income for
each fiscal quarter, the Borrower will account for commodity derivative
instruments as 100% effective cash flow hedges under Statement of Financial
Accounting Standards No. 133 issued by the Financial Accounting Standards Board
and, in accordance therewith, the gain or loss on the relevant commodity
derivative instrument shall be classified into earnings when the forecasted
transaction affects the earnings of the Borrower and its Restricted
Subsidiaries. Consolidated Senior Secured Debt: as of any day, the then outstanding
principal balance of the Loans under this Agreement. Consolidated Senior Secured Debt Ratio: as of the last day of any
period of four consecutive fiscal quarters, the ratio of (a) Consolidated
Senior Secured Debt on such day to (b) Consolidated EBITDA for such period. Consolidated Total Debt: at any date, the aggregate principal amount of
all Indebtedness of the Borrower and its Restricted Subsidiaries at such date
(including any IDB but excluding any contingent obligations under acceptance,
letter of credit or similar facilities), determined on a consolidated basis in
accordance with GAAP. Consolidated Working Capital: at any date, the excess of Consolidated
Current Assets on such date over Consolidated Current Liabilities on such date. Continuing Directors: the directors of Holdings on the Closing Date and
each other director, if (i) in each case, such other directors nomination for
election to the board of directors of Holdings is recommended by at least
66-2/3% of the then Continuing Directors or such other director receives the
vote of the Permitted Investors in his or her election by the shareholders of
Holdings or (ii) such other director is nominated in accordance with the
Investors Agreement with respect thereto. Contractual Obligation: as to any Person, any provision of any security
issued by such Person or of any agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its property is bound. Control: the possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
Controlling and Controlled shall have correlative meanings. Default: any of the events specified in Section 8, whether or not any
requirement for the giving of notice, the lapse of time, or both, has been
satisfied. Deposit Account: defined in the Guarantee and Collateral Agreement. CREDIT AGREEMENT 8




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Disposition: with respect to any property, any sale, lease, sale and
leaseback, assignment, conveyance, transfer or other disposition thereof. The
terms Dispose and Disposed of shall have correlative meanings. Dollars and $: dollars in lawful currency of the United States. Domestic Joint Venture: any joint venture of the Borrower organized
under the laws of any jurisdiction within the United States, but excluding any
Subsidiary of the Borrower. Domestic Subsidiary: any Restricted Subsidiary of the Borrower
organized under the laws of any jurisdiction within the United States. ECF Percentage: for each fiscal year ending on or after December 31,
2005, 75.0%; provided that for any fiscal year in which the Consolidated Senior
Secured Debt Ratio shall be less than 2.0 to 1.0, the ECF Percentage shall be
50.0%. Eligible Assignee: (a) a Lender, (b) an Affiliate of a Lender, (c) an
Approved Fund, and (d) any other Person (other than a natural person) approved
by (i) the Administrative Agent, (ii) in the case of any assignment of a
Revolving Commitment, the Issuing Bank, and (iii) unless a Default or an Event
of Default has occurred and is continuing, the Borrower (each such approval not
to be unreasonably withheld or delayed); provided that notwithstanding the
foregoing, Eligible Assignee shall not include the Borrower or any of the
Borrowers Affiliates or Subsidiaries. Environmental Laws: any and all foreign, federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of
Law (including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect. ERISA: the Employee Retirement Income Security Act of 1974, as amended
from time to time. Eurocurrency Reserve Requirements: for each Interest Period for each
Eurodollar Loan, the highest reserve percentage applicable to any Lender during
such Interest Period under regulations issued from time to time by the Board of
Governors of the Federal Reserve System or any successor for determining the
maximum reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement), with respect to
liabilities or assets consisting of or including Eurocurrency liabilities
having a term equal to such Interest Period. Eurodollar Loans: Loans the rate of interest applicable to which is
based upon the LIBO Rate. Eurodollar Tranche: the collective reference to Eurodollar Loans the
then current Interest Periods with respect to all of which begin on the same
date and end on the same later date (whether or not such Loans shall originally
have been made on the same day). CREDIT AGREEMENT 9




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Event of Default: any of the events specified in Section 8; provided
that any requirement for the giving of notice, the lapse of time, or both, has
been satisfied. Excess Cash Flow: for any fiscal year of the Borrower ending on or
after December 31, 2005, the excess, if any, of (a) the sum, without
duplication, of (i) Consolidated Net Income for such fiscal year, (ii) an
amount equal to the amount of all non-cash charges (including depreciation and
amortization) deducted in arriving at such Consolidated Net Income, (iii)
decreases in Consolidated Working Capital for such fiscal year, and (iv) an
amount equal to the aggregate net non-cash loss on the Disposition of property
by the Borrower and its Restricted Subsidiaries during such fiscal year (other
than sales of inventory in the ordinary course of business), to the extent
deducted in arriving at such Consolidated Net Income over (b) the sum, without
duplication, of (i) an amount equal to the amount of all non-cash credits
included in arriving at such Consolidated Net Income, (ii) the aggregate amount
actually paid by the Borrower and its Restricted Subsidiaries in cash during
such fiscal year on account of Capital Expenditures (excluding the principal
amount of Indebtedness incurred in connection with such expenditures and any
such expenditures financed with the proceeds of any Reinvestment Deferred
Amount), (iii) the aggregate amount of all prepayments of Revolving Loans and
Swingline Loans during such fiscal year to the extent accompanying permanent
optional reductions of the Revolving Commitments and all optional prepayments
of the Term Loans during such fiscal year, (iv) the aggregate amount of (A) all
regularly scheduled principal payments of Funded Debt (including the Term
Loans) of the Borrower and its Restricted Subsidiaries made during such fiscal
year (other than in respect of any revolving credit facility to the extent
there is not an equivalent permanent reduction in commitments thereunder) and
(B) all redemptions, repurchases or prepayments of principal of the Senior
Unsecured Notes and the Senior Subordinated Notes permitted by Section 7.6(e)
or otherwise made with the express approval of the Required Lenders, (v)
increases in Consolidated Working Capital for such fiscal year, and (vi) an
amount equal to the aggregate net non-cash gain on the Disposition of property
by the Borrower and its Restricted Subsidiaries during such fiscal year (other
than sales of inventory in the ordinary course of business), to the extent
included in arriving at such Consolidated Net Income. Excess Cash Flow Application Date: as defined in Section 2.12(c). Excluded Taxes: 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 the Borrower hereunder, (a) taxes imposed on or
measured by its overall net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), by the jurisdiction (or any
political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States or any similar tax imposed by any
other jurisdiction in which the Borrower is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.23), any withholding tax that is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new lending office) or is attributable to such Foreign Lenders
failure or inability (other than as a result of a Change in Law) to comply with
Section 2.20(e), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the CREDIT AGREEMENT 10




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time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.20(a). Existing Credit Facilities: as defined in the preamble hereto. Existing Preferred Stock: the Borrowers 14.25% Senior Exchangeable
Preferred Stock due 2007. Facility: each of (a) the Term Commitments and the Term Loans made
thereunder (the Term Facility) and (b) the Revolving Commitments and the
Revolving Extensions of Credit made thereunder (the Revolving Facility). Federal Funds Effective Rate: for any day, the weighted average of the
rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for the day of such transactions received by the Reference Lender
from three federal funds brokers of recognized standing selected by it. Foreign Joint Venture: any joint venture of the Borrower that is not a
Domestic Joint Venture, but excluding any Subsidiary of the Borrower. Foreign Lender: any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is resident for tax
purposes. For purposes of this definition, the United States, each State
thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction. Foreign Subsidiary: any Restricted Subsidiary of the Borrower that is
not a Domestic Subsidiary. Fund: any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business. Funded Debt: as to any Person, all Indebtedness of such Person that
matures more than one year from the date of its creation or matures within one
year from such date but is renewable or extendible, at the option of such
Person, to a date more than one year from such date or arises under a revolving
credit or similar agreement that obligates the lender or lenders to extend
credit during a period of more than one year from such date, including all
current maturities and current sinking fund payments in respect of such
Indebtedness whether or not required to be paid within one year from the date
of its creation and, in the case of the Borrower, Indebtedness in respect of
the Loans. Funding Office: the office of the Administrative Agent located at Eleven
Madison Avenue, New York, NY 11010 (or such office of the Administrative Agent
or any successor Administrative Agent specified by the Administrative Agent or
such successor Administrative Agent in a written notice to the Loan Parties and
the Lenders). CREDIT AGREEMENT 11




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GAAP: generally accepted accounting principles in the United States as
in effect from time to time, except that for purposes of Section 7.1, GAAP
shall be determined on the basis of such principles in effect on the Closing
Date and consistent with those used in the preparation of the most recent
audited financial statements delivered pursuant to Section 4.1(b) except for
those principals pursuant to FAS 150 as disclosed in Note 6 to such financial
statements. 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, the Administrative
Agent and the Required Lenders, all financial covenants, standards and terms in
this Agreement shall continue to be calculated or construed as if such
Accounting Changes had not occurred. Accounting Changes refers to changes in
accounting principles required by the promulgation of any rule, regulation,
pronouncement or opinion by the Financial Accounting Standards Board of the
American Institute of Certified Public Accountants or, if applicable, the SEC. Governmental Authority: the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government (including
any supra-national bodies such as the European Union or the European Central
Bank). Guarantee and Collateral Agreement: the Guarantee and Collateral
Agreement to be executed and delivered by Holdings, the Borrower and each
Domestic Subsidiary that is directly owned by the Borrower or another Domestic
Subsidiary, substantially in the form of Exhibit A, as the same may be amended,
supplemented or otherwise modified from time to time. Guarantee Obligation: as to any Person (the guaranteeing person), any
obligation of (a) the guaranteeing person or (b) another Person (including any
bank under any letter of credit) to induce the creation of which the
guaranteeing person has issued a reimbursement, counterindemnity or similar
obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the primary
obligations) of any other third Person (the primary obligor) in any manner,
whether directly or indirectly, including any obligation of the guaranteeing
person, whether or not contingent, (i) to purchase any such primary obligation
or any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such primary
obligation or (2) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the owner of any such primary obligation
against loss in respect thereof; provided, however, that the term Guarantee
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary CREDIT AGREEMENT 12




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obligation in respect of which such Guarantee Obligation is made and (b)
the maximum amount for which such guaranteeing person may be liable pursuant to
the terms of the instrument embodying such Guarantee Obligation, unless such
primary obligation and the maximum amount for which such guaranteeing person
may be liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing persons maximum reasonably
anticipated liability in respect thereof as determined by the guaranteeing
person in good faith. Guarantors: the collective reference to Holdings and each of the
Domestic Subsidiaries party to the Guarantee and Collateral Agreement. Hedge Agreements: all interest rate swaps, caps or collar agreements or
similar arrangements providing for protection against fluctuations in interest
rates or currency exchange rates or the exchange of nominal interest
obligations, either generally or under specific contingencies. Holdings: as defined in the preamble hereto. IDB: industrial development bonds. Indebtedness: of any Person at any date, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of property or services (other than
current trade payables incurred in the ordinary course of such Persons
business), (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such property), (e) all Capital Lease
Obligations of such Person, (f) all obligations of such Person, contingent or
otherwise, as an account party or applicant under acceptance, letter of credit
or similar facilities, (g) all Guarantee Obligations of such Person in respect
of obligations of the kind referred to in clauses (a) through (f) above; (h)
all obligations of the kind referred to in clauses (a) through (g) above
secured by (or for which the holder of such obligation has an existing right,
contingent or otherwise, to be secured by) any Lien on property (including
accounts and contract rights) owned by such Person, whether or not such Person
has assumed or become liable for the payment of such obligation; and (i) for
the purposes of Section 8(e) only, all obligations of such Person in respect of
Hedge Agreements; provided that, notwithstanding anything herein to the
contrary, Indebtedness shall not include the Existing Preferred Stock or any
Replacement Preferred Stock. Indemnified Taxes: Taxes other than Excluded Taxes. Indemnitee: as defined in Section 10.5(b). Insolvency: with respect to any Multiemployer Plan, the condition that
such Plan is insolvent within the meaning of Section 4245 of ERISA. Insolvent: pertaining to a condition of Insolvency. CREDIT AGREEMENT 13




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Intellectual Property: the collective reference to all rights,
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including
copyrights, copyright licenses, patents, patent licenses, trademarks, trademark
licenses, technology, know-how and processes, and all rights to sue at law or
in equity for any infringement or other impairment thereof, including the right
to receive all proceeds and damages therefrom. Interest Payment Date: (a) as to any ABR Loan, the last Business Day of
each March, June, September and December to occur while such Loan is
outstanding and the final maturity date of such Loan, (b) as to any Eurodollar
Loan having an Interest Period of three months or less, the last day of such
Interest Period, (c) as to any Eurodollar Loan having an Interest Period longer
than three months, each day that is three months, or a whole multiple thereof,
after the first day of such Interest Period and the last day of such Interest
Period and (d) as to any Loan (other than any Revolving Loan that is an ABR
Loan and any Swingline Loan), the date of any repayment or prepayment made in
respect thereof. Interest Period: as to any Eurodollar Loan, (a) initially, the period
commencing on the borrowing or conversion date, as the case may be, with
respect to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto; and (b) thereafter,
each period commencing on the last day of the immediately preceding Interest
Period applicable to such Eurodollar Loan and ending one, two, three or six
months thereafter, as selected by the Borrower by irrevocable notice to the
Administrative Agent not less than three Business Days prior to the last day of
the then current Interest Period with respect thereto; provided that all of the
foregoing provisions relating to Interest Periods are subject to the following: (i) if any Interest Period would otherwise end on a day that is not
a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business Day; (ii) the Borrower may not select an Interest Period under a
particular Facility that would extend beyond the scheduled Revolving
Termination Date or beyond the date final payment is due on the Term
Loans; (iii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and (iv) the Borrower shall select Interest Periods so as not to require
a payment or prepayment of any Eurodollar Loan prior to the last day of an
Interest Period for such Loan. Investments: as defined in Section 7.8. Investors Agreement: the Second Amended and Restated Investors
Agreement, dated as of March 26, 2001, among Holdings, the Borrower, Summit
Capital Inc., Summit/DPC Partners, L.P., J.P. Morgan Partners (B.H.C.A.), L.P.,
Baseball Partners, DLJ Merchant Banking CREDIT AGREEMENT 14




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Partners, L.P., DLJ International Partners, C.V., DLJ Offshore Partners,
C.V., DLJ Merchant Banking Funding, Inc., DLJ First ESC, L.L.C., Bruckmann,
Rosser, Sherrill & Co., L.P., PNC Capital Corp. and certain other persons
signatories thereto, as amended and replaced from time to time. Issuing Bank CSFB, in its capacity as issuer of Letters of Credit
hereunder, or any other Lender that is a commercial bank and is reasonably
acceptable to the Borrower and the Administrative Agent, that agrees, pursuant
to an agreement with and in form and substance reasonably satisfactory to the
Administrative Agent and the Borrower, to be bound by the terms hereof
applicable to the Issuing Bank. Joint Venture: any Domestic Joint Venture or Foreign Joint Venture. L/C Commitment: $20,000,000. L/C Fee Payment Date: the last Business Day of each March, June,
September and December and the Revolving Termination Date. L/C Obligations: at any time, an amount equal to the sum of (a) the
aggregate then undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit that
have not then been reimbursed pursuant to Section 3.5. L/C Participants: with respect to any Letter of Credit, the collective
reference to all the Revolving Lenders other than the Issuing Bank of such
Letter of Credit. Leased Real Property: as defined in Section 4.8(b). Lenders: as defined in the preamble hereto. Letters of Credit: as defined in Section 3.1(a). LIBO Rate: the rate per annum determined by the Administrative Agent at
approximately 11:00 A.M. (London time) on the date which is two (2) Business
Days prior to the beginning of the relevant Interest Period (as specified in
the applicable notice of borrowing or the applicable notice of conversion) by
reference to the British Bankers Association Interest Settlement Rates for
deposits in Dollars (as set forth by any service selected by the Administrative
Agent which has been nominated by the British Bankers Association as an
authorized information vendor for the purpose of displaying such rates) for a
period equal to such Interest Period; provided that, to the extent that an
interest rate is not ascertainable pursuant to the foregoing provisions of this
definition, the LIBO Rate shall be the interest rate per annum determined by
the Administrative Agent to be the average of the rates per annum at which
deposits in Dollars are offered for such relevant Interest Period to major
banks in the London interbank market in London, England by the Reference Lender
at approximately 11:00 A.M. (London time) on the date which is two Business
Days prior to the beginning of such Interest Period. If either of the
Reference Lender shall be unable or shall otherwise fail to supply such rates
to the Administrative Agent upon its request, the CREDIT AGREEMENT 15




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rate of interest shall be determined on the basis of the quotations of the
remaining Reference Lender. Lien: any deed of trust, mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or other
security interest or similar charge or any preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever
(including any conditional sale or other title retention agreement and any
capital lease having substantially the same economic effect as any of the
foregoing). Loan: any loan made or maintained by any Lender pursuant to this
Agreement. Loan Documents: this Agreement, the Security Documents and the Notes. Loan Parties: Holdings, the Borrower and each Restricted Subsidiary of
the Borrower that is a party to a Loan Document. Majority Facility Lenders: with respect to any Facility, the holders of
more than 50% of the aggregate unpaid principal amount of the Term Loans or the
Total Revolving Extensions of Credit, as the case may be, outstanding under
such Facility (or, in the case of the Revolving Facility, prior to any
termination of the Revolving Commitments, the holders of more than 50% of the
Total Revolving Commitments). Majority Revolving Facility Lenders: the Majority Facility Lenders in
respect of the Revolving Facility. Margin Stock: margin stock within the meaning of Regulation U. Material Adverse Effect: a material adverse effect on (a) the business,
assets, property, operations, condition (financial or otherwise) or prospects
of Holdings, the Borrower and its Restricted Subsidiaries taken as a whole, (b)
the ability of any Loan Party to perform its material obligations under any
Loan Documents to which it is a party or (c) the validity or enforceability of
any material provision of this Agreement or any of the other Loan Documents or
the rights or remedies of the Administrative Agent or the Lenders hereunder or
thereunder. Materials of Environmental Concern: any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, in each case, defined or
regulated as such in or under any Environmental Law, including asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation. Mortgaged Properties: the real property as to which the Collateral
Agent for the benefit of the Lenders shall be granted a Lien pursuant to the
Mortgages. Mortgages: each of the mortgages and deeds of trust made by any Loan
Party in favor of, or for the benefit of, the Collateral Agent for the benefit
of the Lenders pursuant to this Agreement, substantially in the form of Exhibit
D (with such changes thereto as shall be advisable under the law of the
jurisdiction in which such mortgage or deed of trust is to be recorded), as the
same may be amended, supplemented or otherwise modified from time to time. CREDIT AGREEMENT 16




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Multiemployer Plan: a Plan that is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA. Net Cash Proceeds: (a) in connection with any Asset Sale or any
Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents
(including any such proceeds received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment
receivable or otherwise, but only as and when received) of such Asset Sale or
Recovery Event, net of attorneys fees, accountants fees, investment banking
fees, brokers or finders fees, amounts required to be applied to the
repayment of Indebtedness secured by a Lien expressly permitted hereunder on
any asset that is the subject of such Asset Sale or Recovery Event (other than
any Lien pursuant to a Security Document) and other customary fees and expenses
actually incurred in connection therewith and net of taxes paid or reasonably
estimated to be payable as a result thereof (after taking into account any
available tax credits or deductions related to such Asset Sale or Recovery
Event and any tax sharing arrangements) and (b) in connection with any issuance
or sale of equity securities or debt securities or instruments or the
incurrence of loans, the cash proceeds received from such issuance or
incurrence, net of attorneys fees, investment banking fees, accountants fees,
underwriting discounts and commissions and other customary fees and expenses
actually incurred in connection therewith. Non-Recourse Debt means Indebtedness (i) no default with respect to
which would permit (upon notice, lapse of time or both) any holder of any other
Indebtedness of Holdings, the Borrower or any of the Restricted Subsidiaries to
declare a default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity, and (ii) as to which the
lenders thereof have been notified in writing that they will not have any
recourse to the capital stock or assets of Holdings, the Borrower or any of the
Restricted Subsidiaries. Notes: the collective reference to the Term Notes the Revolving Notes
and the Swingline Notes. Obligations: the unpaid principal of and interest on (including
interest accruing after the maturity of the Loans and Reimbursement Obligations
and interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
the Borrower or any Guarantor, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Loans and all other
obligations and liabilities of the Borrower or any Guarantor to the
Administrative Agent or to any Lender (or, in the case of Hedge Agreements, any
Affiliate of any Lender), whether direct or indirect, absolute or contingent,
due or to become due, or now existing or hereafter incurred, which arises
under, out of, or in connection with, this Agreement, any other Loan Document,
the Letters of Credit, any Hedge Agreement entered into with any Lender or any
Affiliate of any Lender or any other document made, delivered or given in
connection herewith or therewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs or expenses (including all
fees, charges and disbursements of counsel to the Administrative Agent or to
any Lender that are required to be paid by the Borrower pursuant hereto) or
otherwise. Operating Accounts: defined in the Guarantee and Collateral Agreement. CREDIT AGREEMENT 17




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Other Taxes: all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any
payment made hereunder or under any other Loan Document or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document. Ottawa IDB: the $6,000,000 Ottawa County Finance Authority Industrial
Development Revenue Bonds, Series 1997 (Doane Products Company Project) issued
pursuant to that certain Indenture of Trust dated as of March 1, 1997 between
Ottawa County Finance Authority and Bank of Oklahoma, National Association,
Oklahoma City, Oklahoma, Trustee and all loan agreements, mortgages, security
agreements, promissory notes executed and delivered in connection therewith. Owned Real Property: as defined in Section 4.8(b). Participant: as defined in Section 10.6(d). PBGC: the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA (or any successor). Permitted Acquisitions":any acquisition of (i) 100% of the issued and
outstanding Capital Stock of, or all or substantially all of the assets
constituting a business, division or product line of, any other Person
organized under the laws of any State of the United States whose direct and
indirect revenues are generated primarily from businesses operated in the
United States and (ii) all or a portion of the equity of Doane International
Pet Products LLC and Effeffe, S.p.a. not currently owned by Borrower or a
Restricted Subsidiary, provided in each instance, that (a) the Borrower shall
be in compliance on a pro forma basis after giving effect to such acquisition,
with the requirements of Section 7.1 as of the last measurement date, (b) no
Default or Event of Default shall have occurred and be continuing or result
therefrom, (c) the aggregate purchase price of all such acquisitions shall not
exceed $20,000,000 in cash, exclusive of any equity provided by either the
Borrower or Holdings to consummate such acquisition in the aggregate since the
Closing Date, which purchase prices shall be deemed to include the amount of
any Indebtedness assumed by Holdings or any of its Subsidiaries in connection
therewith, (d) such Person shall have become a Restricted Subsidiary and a
Guarantor and the provisions of Section 6.10 shall have been complied with to
the reasonable satisfaction of the Administrative Agent and the Collateral
Agent, and (e) (i) after consummation of such acquisition, the excess of
Revolving Commitments over the aggregate amount of all outstanding Revolving
Extensions of Credit shall be no less than (together with cash on hand)
$10,000,000, and (ii) the Consolidated Senior Secured Debt Ratio for the period
in which such acquisition occurs shall be equal to or greater than the
Consolidated Senior Secured Debt Ratio in effect as set forth for the
applicable period in Section 7.1(a) minus 0.25. Permitted Investors: each record or beneficial owner as of the Closing
Date (i) of outstanding common stock of Holdings, (ii) of the Existing
Preferred Stock, or (iii) of warrants or rights to acquire common stock of
Holdings; and Permitted Transferees (as defined in the Investors Agreement)
and Affiliates of the foregoing. Person: any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity CREDIT AGREEMENT 18




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Plan: at a particular time, any employee benefit plan that is covered
by ERISA and in respect of which the Borrower or a Commonly Controlled Entity
is (or, if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an employer as defined in Section 3(5) of ERISA. Preferred Stock: the Existing Preferred Stock and the Replacement
Preferred Stock, if any. Pro Forma Balance Sheet: as defined in Section 4.1(a). Pro Forma EBITDA: Consolidated EBITDA for the four-fiscal quarter
period most recently ended 45 days prior to the Closing Date, prepared as if
the borrowings to occur on the Closing Date and the repayment of loans under
the Existing Credit Facilities had occurred at the start of such period. Properties: as defined in Section 4.17(a). Rate Determination Notice: as defined in Section 2.17(a). Real Property: as defined in Section 4.8(b). Recovery Event: any settlement of or payment in excess of $350,000 (or
its equivalent in other currencies as of the date of receipt of payment, as
determined by the Borrower in good faith based on then prevailing exchange
rates) in respect of any property or casualty insurance claim or any
condemnation proceeding relating to any asset of Holdings, the Borrower or any
of its Restricted Subsidiaries. Reference Lender: either (i) the Administrative Agent or (ii) another
Lender determined by the Administrative Agent with the consent of the Borrower. Refunded Swingline Loans: as defined in Section 2.7(b). Refunding Date: as defined in Section 2.7(c). Register: as defined in Section 10.6(c). Registered Loan: as defined in Section 10.6(c) Regulation U: Regulation U of the Board as in effect from time to time. Reimbursement Obligation: the obligation of the Borrower to reimburse an
Issuing Bank pursuant to Section 3.5 for amounts drawn under a Letter of Credit
issued by such Issuing Bank. Reinvestment Deferred Amount: with respect to any Reinvestment Event,
the aggregate Net Cash Proceeds received by the Borrower or any of its
Restricted Subsidiaries in connection therewith that are not applied to prepay
the Term Loans or reduce the Revolving Commitments pursuant to Section 2.12(b)
as a result of the delivery of a Reinvestment Notice. CREDIT AGREEMENT 19




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Reinvestment Event: any Asset Sale or Recovery Event in respect of
which the Borrower has delivered a Reinvestment Notice. Reinvestment Notice: a written notice executed by a Responsible Officer
stating that no Event of Default has occurred and is continuing and that the
Borrower (directly or indirectly through a Restricted Subsidiary) intends and
expects to use all or a specified portion of the Net Cash Proceeds of an Asset
Sale or Recovery Event to acquire assets useful in its business. Reinvestment Prepayment Amount: with respect to any Reinvestment Event,
the Reinvestment Deferred Amount relating thereto less any amount expended
prior to the relevant Reinvestment Prepayment Date to acquire assets useful in
the Borrowers business. Reinvestment Prepayment Date: with respect to any Reinvestment Event,
the earlier of (a) the date occurring one year after such Reinvestment Event
and (b) the date on which the Borrower shall have determined not to, or shall
have otherwise ceased to, acquire assets useful in the Borrowers business with
all or any portion of the relevant Reinvestment Deferred Amount. Related Lender Assignment: an assignment of all or any portion of a Term
Loans or Term Commitment of a Lender to an Affiliate of such Lender or an
Approved Fund of such Lender. Related Parties means, with respect to any Person, such Persons
Affiliates and the partners, directors, officers, employees, agents and
advisors of such Person and of such Persons Affiliates. Reorganization: with respect to any Multiemployer Plan, the condition
that such plan is in reorganization within the meaning of Section 4241 of
ERISA. Replacement Preferred Stock: preferred stock of Holdings or the
Borrower issued after the Closing Date the proceeds of which shall be used to
redeem or repay the Existing Preferred Stock and having terms no less favorable
to the Lenders and the Administrative Agent than those contained in the
Existing Preferred Stock. Reportable Event: any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the thirty day notice period is
waived under the applicable regulations of PBGC Reg. § 4043. Required Lenders: at any time, the holders of more than 50% of the sum
of (a) the aggregate unpaid principal amount of the Term Loans then outstanding
and (b) the Total Revolving Commitments then in effect or, if the Revolving
Commitments have been terminated, the Total Revolving Extensions of Credit then
outstanding. Requirement of Law: as to any Person, the Certificate of Incorporation
and By-Laws or other organizational or governing documents of such Person, and
any law, treaty, rule or regulation or determination of an arbitrator or a
court or other Governmental Authority, in each case applicable to or binding
upon such Person or any of its property or to which such Person or any of its
property is subject. CREDIT AGREEMENT 20




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Responsible Officer: the chief executive officer, president or chief
financial officer of the Borrower, but in any event, with respect to financial
matters, the chief financial officer of the Borrower. Restricted Payments: as defined in Section 7.6. Restricted Subsidiary: any Subsidiary which is not an Unrestricted
Subsidiary. Revolving Commitment: as to any Lender, the obligation of such Lender,
if any, to make Revolving Loans and participate in Swingline Loans and Letters
of Credit in an aggregate principal and/or face amount not to exceed the amount
set forth under the heading Revolving Commitment opposite such Lenders name
on Schedule 1.1A or in an Assignment and Assumption, as the same may be changed
from time to time pursuant to the terms hereof. The amount of the Total
Revolving Commitments of the Closing Date shall be $35,000,000. Revolving Commitment Period: the period from and including the Closing
Date to but excluding the Revolving Termination Date. Revolving Extensions of Credit: as to any Revolving Lender at any time,
an amount equal to the sum of (a) the aggregate principal amount of all
Revolving Loans held by such Lender then outstanding, (b) such Lenders
Revolving Percentage of the L/C Obligations then outstanding and (c) such
Lenders Revolving Percentage of the aggregate principal amount of Swingline
Loans then outstanding. Revolving Facility: as defined in the definition of Facility in this
Section 1.1. Revolving Lender: each Lender that has a Revolving Commitment or that
holds Revolving Loans. Revolving Loans: as defined in Section 2.4(a). Revolving Note: as defined in Section 2.4(c). Revolving Percentage: as to any Revolving Lender at any time, the
percentage which such Lenders Revolving Commitment then constitutes of the
Total Revolving Commitments (or, at any time after the Revolving Commitments
shall have expired or terminated, the percentage which the aggregate principal
amount of such Lenders Revolving Loans then outstanding constitutes of the
aggregate principal amount of the Revolving Loans then outstanding). Revolving Termination Date: the date that is the earlier of (i) 91-days
prior to the maturity of the Senior Subordinated Notes (as refinanced, extended
or renewed as permitted hereunder) and (ii) the fifth anniversary of the
Closing Date. SEC: the Securities and Exchange Commission, any successor thereto and
any analogous Governmental Authority. Securities Account: defined in the Guarantee and Collateral Agreement. CREDIT AGREEMENT 21




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Security Documents: the collective reference to the Guarantee and
Collateral Agreement, the Mortgages, each control agreement entered into by the
Borrower pursuant to Section 6.10(e) and all other security documents at any
time delivered to the Collateral Agent granting a Lien on any property of any
Person to secure the obligations and liabilities of any Loan Party under any
Loan Document. Senior Unsecured Notes: the senior 10 3/4% unsecured notes of the
Borrower due 2010 (including senior unsecured guarantees thereof by any
Restricted Subsidiary that is a Guarantor) issued pursuant to an indenture
dated February 28, 2003 among the Borrower, as issuer, the subsidiary
guarantors party thereto and Wilmington Trust Company as the Trustee, as such
are amended from time to time pursuant to Section 7.9 Senior Subordinated Note Indenture: that certain indenture dated as of
November 12, 1998 made by and among the Borrower, as issuer, and Wilmington
Trust Company, as trustee, pursuant to which the Senior Subordinated Notes are
issued, as such indenture is amended from time to time pursuant to Section 7.9. Senior Subordinated Notes: the Borrowers 9-3/4% Senior Subordinated
Notes due 2007 (as defined in the Senior Subordinated Note Indenture) in an
aggregate outstanding principal amount of $150,000,000 as of the Closing Date. Single Employer Plan: any Plan that is covered by Title IV of ERISA,
but that is not a Multiemployer Plan. Solvent: when used with respect to any Person, means that, as of any
date of determination, (a) the amount of the present fair saleable value of
the assets of such Person will, as of such date, exceed the amount of all
liabilities of such Person, contingent or otherwise, as of such date, as such
quoted terms are determined in accordance with applicable federal and state
laws governing determinations of the insolvency of debtors, (b) the present
fair saleable value of the assets of such Person will, as of such date, be
greater than the amount that will be required to pay the liability of such
Person on its debts as such debts become absolute and matured, (c) such Person
will not have, as of such date, an unreasonably small amount of capital with
which to conduct its business, and (d) such Person will be able to pay its
debts as they mature. For purposes of this definition, (i) debt means
liability on a claim, and (ii) claim means any (x) right to payment,
whether or not such a right is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured or (y) right to an equitable remedy for breach of
performance if such breach gives rise to a right to payment, whether or not
such right to an equitable remedy is reduced to judgment, fixed, contingent,
matured or unmatured, disputed, undisputed, secured or unsecured. Sources and Uses Table: the sources and uses table attached hereto as
Annex A. Subsidiary: as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, partnership or other entity are at the time owned, or the
management of which is CREDIT AGREEMENT 22




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otherwise controlled, directly or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a Subsidiary or to Subsidiaries in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Borrower. Swingline Commitment: the obligation of the Swingline Lender to make
Swingline Loans pursuant to Section 2.6 in an aggregate principal amount at any
one time outstanding not to exceed $10,000,000. Swingline Lender: CSFB, in its capacity as the lender of Swingline
Loans. Swingline Loans: as defined in Section 2.6(a). Swingline Note : as defined in Section 2.7(f). Swingline Participation Amount: as defined in Section 2.7(c). Taxes: all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental
Authority, including any interest, additions to tax or penalties applicable
thereto. Term Commitment: as to Term Lender, the obligation of such Lender to
make its Term Loan to the Borrower hereunder in a principal amount equal to
the amount set forth under the heading Term Commitment opposite such Lenders
name on Schedule 1.1A or an Assignment and Assumption. The aggregate amount of
the Term Commitments is $195,000,000 as of the Closing Date. Term Lenders: the collective reference to the Lenders who have made
Term Loans or is the holder of a Term Loan. Term Loans: a term loan made pursuant to Section 2.1(a). Term Maturity Date: the date that is the earlier of (i) 91-days prior
to the maturity of the Senior Subordinated Notes (as refinanced, extended or
renewed as permitted hereunder) and (ii) the fifth anniversary of the Closing
Date. Term Note: as defined in Section 2.3(b). Term Percentage: as to any Term Lender at any time, the percentage
which the aggregate principal amount of such Lenders Term Loans then
outstanding constitutes of the aggregate principal amount of all Term Loans
then outstanding. Total Revolving Commitments: at any time, the aggregate amount of the
Revolving Commitments then in effect. Total Revolving Extensions of Credit: at any time, the aggregate amount
of the Revolving Extensions of Credit of the Revolving Lenders outstanding at
such time. Type: as to any Loan, its nature as an ABR Loan or a Eurodollar Loan. CREDIT AGREEMENT 23




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Uniform Customs: the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No. 500,
as the same may be amended from time to time. United States: the United States of America. Unrestricted Subsidiary: any Subsidiary of the Borrower (i) designated
as such and listed on Schedule 4.15 on the Closing Date and (ii) any Subsidiary
of the Borrower that is designated by a resolution of the Board of Directors of
Holdings as an Unrestricted Subsidiary, but only to the extent that such
Subsidiary: (a) has no Indebtedness other than Non-Recourse Debt; (b) is not
party to any agreement, contract, arrangement or understanding with Holdings,
the Borrower or any Restricted Subsidiary unless the terms of any such
agreement, contract, arrangement or understanding are no less favorable to
Holdings, the Borrower or such Restricted Subsidiary than those that might be
obtained at the time from Persons who are not Affiliates of Holdings or the
Borrower; (c) is a Person with respect to which neither Holdings, the Borrower
nor any of the Restricted Subsidiaries has any direct or indirect obligation
(x) to subscribe for additional Capital Stock or warrants, options or other
rights to acquire Capital Stock or (y) to maintain or preserve such Persons
financial condition or to cause such Person to achieve any specified levels of
operating results; and (d) has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of Holdings, the
Borrower or any of the Restricted Subsidiaries. If, at any time, any
Unrestricted Subsidiary would fail to meet the foregoing requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes hereof. Subject to the foregoing, the Board of
Directors of Holdings may at any time designate any Unrestricted Subsidiary to
be a Restricted Subsidiary or any Restricted Subsidiary to be an Unrestricted
Subsidiary; provided (i) such designation shall only be permitted if no Default
or Event of Default would be in existence following such designation, (ii) that
any designation of an Unrestricted Subsidiary as a Restricted Subsidiary shall
be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of any
outstanding Indebtedness of such Unrestricted Subsidiary, (iii) that any
designation of a Restricted Subsidiary as an Unrestricted Subsidiary shall be
deemed to be an Investment in an Unrestricted Subsidiary equal to the fair
market value of the Subsidiary so designated and (iv) after the Closing Date no
more than one designation as an Unrestricted Subsidiary shall be made pursuant
to this definition of Unrestricted Subsidiary in respect of any single
Subsidiary of the Borrower (including transferring to any other Subsidiary of
the Borrower substantially all of the assets or business of such Subsidiary). 1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the
defined meanings when used in the other Loan Documents or any certificate
or other document made or delivered pursuant hereto or thereto. CREDIT AGREEMENT 24




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(b) As used herein and in the other Loan Documents, and any certificate or
other document made or delivered pursuant hereto or thereto, (i) accounting
terms relating to Holdings, the Borrower and its Subsidiaries not defined in
Section 1.1 and accounting terms partly defined in Section 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP, (ii)
the words include, includes and including shall be deemed to be followed
by the phrase without limitation, (iii) the word incur shall be construed
to mean incur, create, issue, assume, become liable in respect of or suffer to
exist (and the words incurred and incurrence shall have correlative
meanings), (iv) the words asset and property shall be construed to have the
same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, Capital Stock, securities, revenues,
accounts, leasehold interests and contract rights, (v) the word will shall be
construed to have the same meaning and effect as the word shall, (vi) unless
the context otherwise requires, any reference herein (A) to any Person shall be
construed to include such Persons successors and assigns and (B) to the
Borrower or any other Loan Party shall be construed to include the Borrower or
such Loan Party as debtor and debtor-in-possession and any receiver or trustee
for the Borrower or any other Loan Party, as the case may be, in any bankruptcy
or similar insolvency proceeding and (vii) references to agreements or other
documents shall, unless otherwise specified, be deemed to refer to such
agreements or other documents as amended, supplemented, restated or otherwise
modified from time to time. (c) The words hereof, herein and hereunder and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified. (d) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms. SECTION 2. AMOUNT AND TERMS OF COMMITMENTS 2.1 Term Commitments. (a) Subject to the terms and conditions hereof,
each Lender with a Term Commitment severally and not jointly agrees to make, on
the Closing Date, a Term Loan to the Borrower in an amount equal to such
Lenders Term Commitment. (b) The Borrower may make only one borrowing under the Term Commitments,
which shall be on the Closing Date. Any amount borrowed under this Section 2.1
and subsequently repaid or prepaid may not be reborrowed. Subject to Sections
2.3, 2.11, 2.12 and 8, all amounts owed hereunder with respect to the Term
Loans shall be paid in full no later than the Term Maturity Date. Each
Lenders Term Commitment shall terminate immediately and without further action
on the Closing Date after giving effect to the funding of such Lenders Term
Commitment on such date. 2.2 Procedure for Term Loan Borrowing. The Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 12:00 Noon, New York City time, three Business
Days prior to the anticipated Closing Date) requesting that the Term Lenders
make the Term Loans on the Closing Date and specifying the amount to be
borrowed. Upon receipt of such notice the Administrative Agent shall promptly
notify each Term Lender thereof. Not later than 12:00 Noon, New York City
time, on the Closing Date each Term CREDIT AGREEMENT 25




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Lender having an obligation to make a Term Loan on the Closing Date shall
make available to the Administrative Agent at the relevant Funding Office an
amount in immediately available funds equal to the Term Loan or Term Loans to
be made by such Lender. The Administrative Agent shall credit the account of
the Borrower as specified in its notice of borrowing with the aggregate of the
amounts made available to the Administrative Agent by the Term Lenders in
immediately available funds. 2.3 Repayment of Term Loans. (a) The Term Loans shall be payable
in equal quarterly installments on the last business day of each of
December, March, June, and September following the Closing Date in an
amount equal to one quarter of one percent (0.25%) of the Term Loans
funded on the Closing Date, with the remaining balance payable on the
Term Maturity Date. (b) The Borrower agrees that, upon the request by any Term Lender, the
Borrower will execute and deliver to such Term Lender a promissory note of the
Borrower dated the Closing Date or such date such Lender becomes a party
hereto, as appropriate, evidencing the Term Loans made by such Term Lender,
substantially in the form of Exhibit I-1 (a Term Note), payable to the order
of such Term Lender and in a principal amount equal to, in the case of Term
Notes issued on the Closing Date, the lesser of (A) the initial Term
Commitment of such Term Lender or (B) the unpaid principal amount of the Term
Loan made by such Term Lender, and, in the case of Term Notes issued after the
Closing Date, the unpaid principal amount of the Term Loan made by such Term
Lender. Each Term Lender is hereby authorized to record the date, Type and
amount of each Term Loan made by such Term Lender, the date and amount of each
payment or prepayment of principal thereof, each continuation thereof, each
conversion of all or a portion thereof to another Type and, in the case of
Eurodollar Loans, the length of each Interest Period and Adjusted LIBO Rate
with respect thereto, on the schedule (or any continuation of the schedule)
annexed to and constituting a part of its Term Note, and any such recordation
shall, to the extent permitted by applicable law, constitute prima facie
evidence of the accuracy of the information so recorded; provided that the
failure to make any such recordation (or any error therein) shall not affect
the obligation of the Borrower to repay (with applicable interest) the Term
Loans made to the Borrower in accordance with the terms of this Agreement. A
Term Note and the Obligations evidenced thereby may be assigned or otherwise
transferred in whole or in part only by registration of such assignment or
transfer of such Term Note and the Obligations evidenced thereby in the

Register (and each Term Note shall expressly so provide). 2.4 Revolving Commitments. (a) Subject to the terms and conditions
hereof, each Revolving Lender severally agrees to make revolving credit loans
(Revolving Loans) to the Borrower from time to time during the Revolving
Commitment Period in an aggregate principal amount at any one time outstanding
which, when added to such Revolving Lenders Revolving Percentage of the sum
of (i) the L/C Obligations then outstanding and (ii) the aggregate principal
amount of the Swingline Loans then outstanding, does not exceed the amount of
such Revolving Lenders Revolving Commitment. During the Revolving Commitment
Period, the Borrower may use the Revolving Commitments by borrowing, prepaying
the Revolving Loans in whole or in part, and reborrowing, all in accordance
with the terms and conditions hereof. The Revolving Loans may from time to
time be Eurodollar Loans or ABR Loans, as determined by the Borrower and
notified to the Administrative Agent in accordance with Sections 2.5 and 2.13. CREDIT AGREEMENT 26




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(b) Subject to Sections 2.11, 2.13 and 8, the Borrower shall repay all
outstanding Revolving Loans on the Revolving Termination Date. (c) The Borrower agrees that, upon the request by any Revolving Lender,
the Borrower will execute and deliver to such Revolving Lender a promissory
note of the Borrower dated the Closing Date or such date such Lender becomes a
party hereto, as appropriate, evidencing the Revolving Commitment of such
Revolving Lender, substantially in the form of Exhibit I-2 with appropriate
insertions as to date and principal amount (a Revolving Note). Each
Revolving Lender is hereby authorized to record the date, Type and amount of
each Revolving Loan made by such Revolving Lender, the date and amount of each
payment or prepayment of principal thereof, each continuation thereof, each
conversion of all or a portion thereof to another Type and, in the case of
Eurodollar Loans, the length of each Interest Period and Adjusted LIBO Rate
with respect thereto, on the schedule (or any continuation of the schedule)
annexed to and constituting a part of its Revolving Note, and any such
recordation shall, to the extent permitted by applicable law, constitute prima
facie evidence of the accuracy of the information so recorded; provided that
the failure to make any such recordation (or any error therein) shall not
affect the obligation of the Borrower to repay (with applicable interest) the
Revolving Loans made to the Borrower in accordance with the terms of this
Agreement. A Revolving Note and the Obligations evidenced thereby may be
assigned or otherwise transferred in whole or in part only by registration of
such assignment or transfer of such Revolving Note and the Obligations
evidenced thereby in the Register (and each Revolving Note shall expressly so
provide). 2.5 Procedure for Revolving Loan Borrowing. The Borrower may borrow under
the Revolving Commitments during the Revolving Commitment Period on any
Business Day after the Closing Date; provided that the Borrower shall give the
Administrative Agent irrevocable notice, (which notice must be received by the
Administrative Agent prior to 12:00 Noon, New York City time, (a) three
Business Days prior to the requested Borrowing Date, in the case of Eurodollar
Loans, or (b) one Business Day prior to the requested Borrowing Date, in the
case of ABR Loans), specifying (i) the amount and Type of Revolving Loans to be
borrowed, (ii) the requested Borrowing Date, and (iii) in the case of
Eurodollar Loans, the respective amounts of each such Type of Loan and the
respective lengths of the initial Interest Period therefor. The Borrower may
give the Administrative Agent telephonic notice by the required time of any
proposed borrowing under this subsection 2.5 provided that such notice shall
within one Business Day be confirmed in writing to the Administrative Agent.
Each borrowing under the Revolving Commitments shall be in an amount equal to
(x) in the case of ABR Loans, $100,000 or a whole multiple thereof and (y) in
the case of Eurodollar Loans, $1,000,000 or a whole multiple of $100,000 in
excess thereof; provided that the Swingline Lender may request, on behalf of
the Borrower, borrowings under the Revolving Commitments that are ABR Loans in
other amounts pursuant to Section 2.7. Upon receipt of any such notice from
the Borrower, the Administrative Agent shall promptly notify each Revolving
Lender thereof. Each Revolving Lender will make the amount of its pro rata
share of each borrowing available to the Administrative Agent for the account
of the Borrower at the relevant Funding Office prior to 12:00 Noon, New York
City time, on the Borrowing Date requested by the Borrower in funds immediately
available to the Administrative Agent. Such borrowing will then be made
available to the Borrower by the Administrative Agent crediting the account of
the Borrower as specified in the notice of borrowing with the aggregate of the
amounts made available to the CREDIT AGREEMENT 27




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Administrative Agent by the Revolving Lenders and in like funds as
received by the Administrative Agent. 2.6 Swingline Commitment. (a) Subject to the terms and conditions
hereof, the Swingline Lender agrees to make a portion of the credit otherwise
available to the Borrower under the Revolving Commitments from time to time
during the Revolving Commitment Period by making swing line loans (Swingline
Loans) to the Borrower; provided that (i) the aggregate principal amount of
Swingline Loans outstanding at any time shall not exceed the Swingline
Commitment then in effect (notwithstanding that the Swingline Loans outstanding
at any time, when aggregated with the Swingline Lenders other outstanding
Revolving Loans hereunder, may exceed the Swingline Commitment then in effect)
and (ii) the Borrower shall not request, and the Swingline Lender shall not
make, any Swingline Loan if, after giving effect to the making of such
Swingline Loan, the aggregate amount of the Available Revolving Commitments
would be less than zero. During the Revolving Commitment Period, the Borrower
may use the Swingline Commitment by borrowing, repaying and reborrowing, all in
accordance with the terms and conditions hereof. Swingline Loans shall be ABR
Loans only. (b) The Borrower shall repay all outstanding Swingline Loans on the
Revolving Termination Date. 2.7 Procedure for Swingline Borrowing; Refunding of Swingline Loans. (a) Whenever the Borrower desires that the Swingline Lender make Swingline
Loans it shall give the Swingline Lender irrevocable telephonic notice
confirmed promptly in writing (which telephonic notice must be received by the
Swingline Lender not later than 1:00 P.M., New York City time, on the proposed
Borrowing Date), specifying (i) the amount to be borrowed and (ii) the
requested Borrowing Date (which shall be a Business Day during the Revolving
Commitment Period). Each borrowing under the Swingline Commitment shall be in
an amount equal to $100,000 or a whole multiple thereof. Not later than 3:00
P.M., New York City time, on the Borrowing Date specified in a notice in
respect of Swingline Loans, the Swingline Lender shall make available to the
Borrower an amount in immediately available funds equal to the amount of the
Swingline Loan to be made by the Swingline Lender to an account as specified in
the notice of borrowing. (b) The Swingline Lender, at any time and from time to time in its sole
and absolute discretion may, on behalf of the Borrower (which hereby
irrevocably directs the Swingline Lender to act on its behalf), on one Business
Days notice given by the Swingline Lender to the Administrative Agent no later
than 12:00 Noon, New York City time, request each Revolving Lender to make, and
each Revolving Lender hereby agrees to make, a Revolving Loan, in an amount
equal to such Revolving Lenders Revolving Percentage of the aggregate amount
of the Swingline Loans (the Refunded Swingline Loans) outstanding on the date
of such notice, to repay the Swingline Lender. Each Revolving Lender shall
make the amount of such Revolving Loan available to the Administrative Agent at
the relevant Funding Office in immediately available funds, not later than
12:00 Noon., New York City time, one Business Day after the date of such
notice. The proceeds of such Revolving Loans shall be immediately made
available by the Administrative Agent to the Swingline Lender for application
by the Swingline Lender to the repayment of the Refunded CREDIT AGREEMENT 28




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Swingline Loans. The Borrower irrevocably authorizes the Swingline Lender
to charge the Borrowers accounts with the Administrative Agent (up to the
amount available in each such account) in order to immediately pay the amount
of such Refunded Swingline Loans to the extent amounts received from the
Revolving Lenders are not sufficient to repay in full such Refunded Swingline
Loans. (c) If prior to the time a Revolving Loan would have otherwise been made
pursuant to Section 2.7(b), one of the events described in Section 8(f) shall
have occurred and be continuing with respect to the Borrower or if for any
other reason, as determined by the Swingline Lender in its sole discretion,
Revolving Loans may not be made as contemplated by Section 2.7(b), each
Revolving Lender shall, on the date such Revolving Loan was to have been made
pursuant to the notice referred to in Section 2.7(b) (the Refunding Date),
purchase for cash an undivided participating interest in the then outstanding
Swingline Loans by paying to the Swingline Lender an amount (the Swingline
Participation Amount) equal to (i) such Revolving Lenders Revolving
Percentage times (ii) the sum of the aggregate principal amount of Swingline
Loans then outstanding that were to have been repaid with such Revolving Loans. (d) Whenever, at any time after the Swingline Lender has received from any
Revolving Lender such Lenders Swingline Participation Amount, the Swingline
Lender receives any payment on account of the Swingline Loans, the Swingline
Lender will distribute to such Lender its Swingline Participation Amount
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lenders participating interest was
outstanding and funded and, in the case of principal and interest payments, to
reflect such Lenders pro rata portion of such payment if such payment is not
sufficient to pay the principal of and interest on all Swingline Loans then
due); provided, however, that in the event that such payment received by the
Swingline Lender is required to be returned, such Revolving Lender will return
to the Swingline Lender any portion thereof previously distributed to it by the
Swingline Lender. (e) Each Revolving Lenders obligation to make the Loans referred to in
Section 2.7(b) and to purchase participating interests pursuant to Section
2.7(c) shall be absolute and unconditional and shall not be affected by any
circumstance, including (i) any setoff, counterclaim, recoupment, defense or
other right that such Revolving Lender or the Borrower may have against the
Swingline Lender, the Borrower or any other Person for any reason whatsoever;
(ii) the occurrence or continuance of a Default or an Event of Default or the
failure to satisfy any of the other conditions specified in Section 5; (iii)
any adverse change in the condition (financial or otherwise) of the Borrower;
(iv) any breach of this Agreement or any other Loan Document by the Borrower,
any other Loan Party or any other Revolving Lender; or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing. CREDIT AGREEMENT 29




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(f) The Borrower agrees that, upon the request by the Swingline Lender,
the Borrower will execute and deliver to the Swingline Lender a promissory note
of the Borrower, dated the Closing Date or such date such Lender becomes a
party hereto, as appropriate, evidencing the Swingline Commitment of the
Swingline Lender, substantially in the form of Exhibit I-3 with appropriate
insertions as to date and principal amount (a Swingline Note). The Swingline
Lender is hereby authorized to record the date and amount of each Swingline
Loan made by the Swingline Lender and the date and amount of each payment or
prepayment of principal thereof on the schedule annexed to and constituting a
part of the Swingline Note, and any such recordation shall, to the extent
permitted by applicable law, constitute prima facie evidence of the accuracy of
the information so recorded; provided that the failure to make any such
recordation (or any error therein) shall not affect the obligation of the
Borrower to repay (with applicable interest) the Swingline Loans made to the
Borrower by the Swingline Lender in accordance with the terms of this
Agreement. A Swingline Note and the Obligations evidenced thereby may be
assigned or otherwise transferred in whole or in part only by registration of
such assignment or transfer of such Swingline Note and the Obligations
evidenced thereby in the Register (and each Swingline Note shall expressly so
provide). Any assignment or transfer of all or part of the Obligations
evidenced by a Swingline Note shall be registered in the Register only upon
surrender for registration of assignment or transfer of the Swingline Note
evidencing such Obligations, accompanied by an Assignment and Acceptance duly
executed by the assignor thereof, and thereupon one or more new Swingline Notes
shall be issued to the designated assignee and the old Swingline Note shall be
returned by the Administrative Agent to the Borrower marked cancelled. 2.8 Funding by Lenders, Borrowers; Presumptions by Administrative Agent (a) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lenders share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with Sections 2.2, 2.5 and 2.7 and
may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of a payment to be made by such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation and (ii) in
the case of a payment to be made by the Borrower, the interest rate applicable
to ABR Loans. If the Borrower and such Lender shall pay such interest to the
Administrative Agent for the same or an overlapping period, the Administrative
Agent shall promptly remit to the Borrower the amount of such interest paid by
the Borrower for such period. If such Lender pays its share of the applicable
Borrowing to the Administrative Agent, then the amount so paid shall constitute
such Lenders Loan included in such Borrowing. Any payment by the Borrower
shall be without prejudice to any claim the Borrower may have against a Lender
that shall have failed to make such payment to the Administrative Agent. CREDIT AGREEMENT 30




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(b) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of
the Lenders or the Issuing Bank hereunder that the Borrower will not make such
payment, the Administrative Agent may assume that the Borrower has made such
payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders or the Issuing Bank, as the case may be,
the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders or 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 the Issuing Bank, with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation. 2.9 Commitment Fees, etc. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Lender a commitment fee
for the period from and including the Closing Date to the last day of the
Revolving Commitment Period, computed at the Commitment Fee Rate on the average
daily amount of the Available Revolving Commitment of such Lender during the
period for which payment is made, payable quarterly in arrears on the last
Business Day of each March, June, September and December and on the Revolving
Termination Date, commencing on the first of such dates to occur after the
Closing Date. (b) The Borrower agrees to pay to the Administrative Agent the fees in the
amounts and on the dates previously agreed to in writing by the Borrower and
the Administrative Agent. 2.10 Termination or Reduction of Revolving Commitments. The Borrower
shall have the right, upon not less than three Business Days notice to the
Administrative Agent, to terminate the Revolving Commitments or, from time to
time, to reduce the amount of the Revolving Commitments; provided that no such
termination or reduction of Revolving Commitments shall be permitted if, after
giving effect thereto and to any prepayments of the Revolving Loans and
Swingline Loans made on the effective date thereof, the Total Revolving
Extensions of Credit would exceed the Total Revolving Commitments. Any such
reduction shall be in an amount equal to $1,000,000, or a whole multiple
thereof, and shall reduce permanently the Revolving Commitments then in effect. 2.11 Optional Prepayments. (a) The Borrower may at any time and from
time to time prepay the Loans, in whole or in part, without premium or penalty,
upon irrevocable notice delivered to the Administrative Agent at least three
Business Days prior thereto in the case of Eurodollar Loans and at least one
Business Day prior thereto in the case of ABR Loans, which notice shall specify
the date and amount of prepayment and whether the prepayment is of Eurodollar
Loans or ABR Loans; provided that if a Eurodollar Loan is prepaid on any day
other than the last day of the Interest Period applicable thereto, the Borrower
shall also pay any amounts owing pursuant to Section 2.21 Upon receipt of any
such notice the Administrative Agent shall promptly notify each relevant Lender
thereof. If any such notice is given, the amount specified in such notice
shall be due and payable on the date specified therein, together with (except
in the case of Revolving Loans that are ABR Loans and Swingline Loans) accrued
interest to such date on the amount prepaid. Partial CREDIT AGREEMENT 31




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prepayments of Term Loans and Revolving Loans shall be in an aggregate
principal amount of $1,000,000 or a whole multiple thereof. Partial
prepayments of Swingline Loans shall be in an aggregate principal amount of
$100,000 or a whole multiple thereof. (b) Optional prepayments of the Loans shall be applied first to prepay
outstanding Swing Line Loans to the full extent thereof, and second to prepay
the types of Loans as specified in the correlative notice of prepayment and,
absent such specification, to prepay outstanding Term Loans to ratably reduce
each scheduled installments of principal thereof set forth in subsection 2.3.
Optional prepayments of the Term Loans may not be reborrowed. 2.12 Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall be issued or incurred by Holdings, the
Borrower or any of its Restricted Subsidiaries (excluding any Indebtedness
incurred in accordance with Section 7.2), an amount equal to 100% of the Net
Cash Proceeds thereof shall be applied on the date of such issuance or
incurrence toward the prepayment of the Term Loans and the reduction of the
Revolving Commitments as set forth in Section 2.12(e). (b) If on any date the Borrower or any of its Restricted Subsidiaries
shall receive Net Cash Proceeds from any Asset Sale or Recovery Event occurring
after the Closing Date then, unless a Reinvestment Notice shall be delivered in
respect thereof, such Net Cash Proceeds shall be applied on such date toward
the prepayment of the Term Loans and the reduction of the Revolving Commitments
as set forth in Section 2.12(e); provided that, notwithstanding the foregoing,
(i) with respect to any such Asset Sale, such prepayment shall be required only
to the extent the amount of such Net Cash Proceeds thereof, together with the
aggregate Net Cash Proceeds of all other prior Asset Sales occurring after the
Closing Date that have not been applied to a prepayment pursuant to this
Section 2.12(b) (other than any Reinvestment Deferred Amount), exceeds
$2,000,000, (ii) the aggregate Net Cash Proceeds of Asset Sales and Recovery
Events occurring after the Closing Date that may be excluded from the foregoing
requirement pursuant to a Reinvestment Notice shall not exceed $2,500,000 (or
its equivalent in other currencies as of the date of receipt of such proceeds,
as determined by the Borrower in good faith based on then prevailing exchange
rates) in the aggregate and (iii) on each Reinvestment Prepayment Date, an
amount equal to the Reinvestment Prepayment Amount with respect to the relevant
Reinvestment Event shall be applied toward the prepayment of the Term Loans and
the reduction of the Revolving Commitments as set forth in Section 2.12(e). (c) If, for any fiscal year of the Borrower, there shall be Excess Cash
Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date,
apply the ECF Percentage (in effect as of the last day of such fiscal year) of
such Excess Cash Flow toward the prepayment of the Term Loans and the reduction
of the Revolving Commitments as set forth in Section 2.12(e). Each such
prepayment and commitment reduction shall be made on a date (an Excess Cash
Flow Application Date) no later than five days after the earlier of (i) the
date on which the financial statements of the Borrower referred to in Section
6.1(a), for the fiscal year with respect to which such prepayment is made, are
required to be delivered to the Lenders and (ii) the date such financial
statements are actually delivered. CREDIT AGREEMENT 32




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(d) If on any date Holdings, the Borrower or any of its Restricted
Subsidiaries shall receive Net Cash Proceeds from any sale or issuance of
equity or Capital Stock (except any proceeds of equity sold or issued (i) to
the Permitted Investors or management or employees, (ii) the exercise of
options and warrants held by them or (iii) to redeem preferred stock pursuant
to Section 7.6(b)), then such Net Cash Proceeds shall be applied on such date
toward the prepayment of the Term Loans and the reduction of the Revolving
Commitments as set forth in Section 2.12(e). (e) Amounts to be applied in connection with prepayments and Commitment
reductions made pursuant to Section 2.12 shall be applied, first, to prepay the
Term Loans to ratably reduce each scheduled installments of principal thereof
set forth in subsection 2.3, second, to prepay outstanding Swing Line Loans to
the full extent thereof and to permanently reduce the Revolving Loan Commitment
by the amount of such prepayment, third, to prepay Revolving Loans to the full
extent thereof and to permanently reduce the Revolving Loan Commitments by the
amount of such prepayment, fourth, to prepay outstanding reimbursement
obligations with respect to Letters of Credit and to further permanently reduce
the Revolving Loan Commitments by the amount of such prepayment, fifth, to cash
collateralize Letters of Credit as provided in the Collateral Account Agreement
and to further permanently reduce the Revolving Loan Commitments by the amount
of such cash collateralization, and sixth, to the extent of any remaining
amount, to further reduce the Revolving Loan Commitments; provided that the
proceeds of equity sold through an initial public offering, to the extent not
used as contemplated above, may be used first to prepay Revolving Loans without
reducing the Revolving Commitments so long as the pro forma Consolidated Senior
Debt Ratio is less than 2.50:1.00 after taking into account the application of
such proceeds. Mandatory prepayments of the Term Loans may not be reborrowed. 2.13 Conversion and Continuation Options. (a) The Borrower may elect
from time to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent at least two Business Days prior irrevocable notice of
such election. The Borrower may elect from time to time to convert ABR Loans
to Eurodollar Loans by giving the Administrative Agent at least three Business
Days prior irrevocable notice of such election (which notice shall specify the
length of the initial Interest Period therefor), provided that no ABR Loan
under a particular Facility may be converted into a Eurodollar Loan when any
Event of Default has occurred and is continuing and the Administrative Agent or
the Majority Facility Lenders in respect of such Facility have determined in
its or their sole discretion not to permit such conversions. Upon receipt of
any such notice the Administrative Agent shall promptly notify the Borrower and
each relevant Lender thereof. CREDIT AGREEMENT 33




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(b) Any Eurodollar Loan may be continued as such upon the expiration of
the then current Interest Period with respect thereto by the Borrower giving
irrevocable notice to the Administrative Agent, in accordance with the
applicable provisions of the term Interest Period set forth in Section 1.1,
of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan under a particular Facility may be continued
as such when any Event of Default has occurred and is continuing and the
Administrative Agent has or the Majority Facility Lenders in respect of such
Facility have determined in its or their sole discretion not to permit such
continuations, and provided further that if the Borrower shall fail to give any
required notice as described above in this paragraph or if such continuation is
not permitted pursuant to the preceding proviso, any Eurodollar Loans shall be
automatically converted to ABR Loans on the last day of such then expiring
Interest Period. Upon receipt of any such notice the Administrative Agent
shall promptly notify the Borrower and each relevant Lender thereof. The
Borrower may give the Administrative Agent telephonic notice by the required
time of any proposed conversion/continuation under this Section 2.13; provided
that such notice shall be promptly confirmed in writing by delivery to the
Administrative Agent on or before the proposed conversion/continuation date. 2.14 Limitations on Eurodollar Tranches. Notwithstanding anything to the
contrary in this Agreement, all borrowings, conversions and continuations of
Eurodollar Loans hereunder and all selections of Interest Periods hereunder
shall be in such amounts and be made pursuant to such elections so that, (a)
after giving effect thereto, the aggregate principal amount of the Eurodollar
Loans comprising each Eurodollar Tranche shall be equal to $1,000,000 or a
whole multiple of $100,000 in excess thereof, and (b) no more than 8 Eurodollar
Tranches shall be outstanding at any one time. 2.15 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Adjusted LIBO Rate determined for such
day plus the Applicable Margin. (b) Each ABR Loan shall bear interest at a rate per annum equal to the
ABR plus the Applicable Margin. (c) (i) If all or a portion of the principal amount of any Loan or
Reimbursement Obligation shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), all outstanding Loans and
Reimbursement Obligations shall bear interest at a rate per annum equal to (x)
in the case of the Loans, the rate that would otherwise be applicable thereto
pursuant to the foregoing provisions of this Section 2.15 plus 2% or (y) in
the case of Reimbursement Obligations, the rate applicable to ABR Loans under
the Revolving Facility plus 2%, and (ii) if all or a portion of any interest
payable on any Loan or Reimbursement Obligation or any commitment fee or other
amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to the rate then applicable to ABR Loans
under the relevant Facility plus 2% (or, in the case of any such other amounts
that do not relate to a particular Facility, the rate then applicable to ABR
Loans under the Revolving Facility plus 2%), in each case, with respect to
clauses (i) and (ii) above, from the date of such non-payment until such
amount is paid in full (as well after as before judgment). CREDIT AGREEMENT 34




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(d) Interest shall be payable in arrears on each Interest Payment Date,
provided that interest accruing pursuant to paragraph (c) of this Section 2.15
shall be payable from time to time on demand. 2.16 Computation of Interest and Fees. (a) Interest and fees
payable pursuant hereto shall be calculated on the basis of a 360-day year for
the actual days elapsed, except that, with respect to ABR Loans the rate of
interest on which is calculated on the basis of the Prime Rate, the interest
thereon shall be calculated on the basis of a 365- (or 366-, as the case may
be) day year for the actual days elapsed. The Administrative Agent shall as
soon as practicable notify the Borrower and the relevant Lenders of each
determination of an Adjusted LIBO Rate. Any change in the interest rate on a
Loan resulting from a change in the ABR or Eurocurrency Reserve Rate shall
become effective as of the opening of business on the day on which such change
becomes effective. The Administrative Agent shall as soon as practicable
notify the Borrower and the relevant Lenders of the effective date and the
amount of each such change in interest rate. (b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrower and the Lenders in the absence of manifest error. 2.17 Inability to Determine Interest Rate. (a) If prior to the
first day of any Interest Period (an Affected Interest Period): (i) the Administrative Agent shall have determined (which determination
shall be conclusive and binding upon the Borrower) that, by reason of
circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Adjusted LIBO Rate for such Affected Interest
Period, or (ii) the Administrative Agent shall have received notice from the
Majority Facility Lenders in respect of the relevant Facility that the
Adjusted LIBO Rate, as the case may be, determined or to be determined for
such Affected Interest Period will not adequately and fairly reflect the cost
to such Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Affected Interest Period, the
Administrative Agent shall give telecopy or telephonic notice thereof (a Rate
Determination Notice) to the Borrower and the relevant Lenders as soon as
practicable thereafter. (b) If such Rate Determination Notice is given with respect to the
Adjusted LIBO Rate (x) any Eurodollar Loans having such Affected Interest
Period under the relevant Facility requested to be made on the first day of
such Affected Interest Period shall be made as ABR Loans, (y) any ABR Loans
under the relevant Facility that were to have been converted on the first day
of such Affected Interest Period to Eurodollar Loans shall be continued as ABR
Loans and (z) any outstanding Eurodollar Loans under the relevant Facility
shall be converted, on the last day of the then-current Interest Period, to ABR
Loans. Until such Rate Determination Notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans under the relevant Facility
having such Affected Interest Period shall be made or continued as such, nor
shall the Borrower have the right to convert Loans under the relevant Facility
to Eurodollar Loans having such Affected Interest Period. CREDIT AGREEMENT 35




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2.18 Pro Rata Treatment and Payments. (a) Each borrowing by the
Borrower from the Lenders hereunder, each payment by the Borrower on account of
any commitment fee and any reduction of the Commitments of the Lenders shall be
made pro rata according to the Applicable Percentage of the relevant Lenders. (b) Each payment (including each prepayment) by the Borrower on account of
principal of and interest on any Term Loan shall be made pro rata according to
the respective outstanding principal amount of such Term Loan then held by the
Term Lenders. The amount of each principal prepayment of the Term Loans shall
be applied to reduce the then remaining installments of the Term Loans.
Amounts prepaid on account of the Term Loans may not be reborrowed. (c) Each payment (including each prepayment) by the Borrower on account of
principal of and interest on the Revolving Loans shall be made pro rata
according to the respective outstanding principal amounts of the Revolving
Loans then held by the Revolving Lenders. (d) All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without setoff or counterclaim and shall be made prior to 12:00 Noon,
New York City time, on the due date thereof to the Administrative Agent, for
the account of the Lenders, at the relevant Funding Office, in Dollars and in
immediately available funds. The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as received.
Except as otherwise provided herein, if any payment hereunder (other than
payments on the Eurodollar Loans) becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding Business
Day. If any payment on a Eurodollar Loan becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day unless the result of such extension would be to extend
such payment into another calendar month, in which event such payment shall be
made on the immediately preceding Business Day. In the case of any extension
of any payment of principal pursuant to the preceding two sentences, interest
thereon shall be payable at the then applicable rate during such extension. 2.19 Increased Costs. (a) Increased Costs Generally. If any Change in Law shall: (i) impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against assets of,
deposits with or for the account of, or credit extended or participated in by,
any Lender (except any reserve requirement reflected in the Adjusted LIBO
Rate) or the Issuing Bank; (ii) subject any Lender or the Issuing Bank to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
participation in a Letter of Credit or any Eurodollar Loan made by it, or
change the basis of taxation of payments to such Lender or the Issuing Bank in
respect thereof (except for Indemnified Taxes or Other Taxes covered by
Section 2.20 and the imposition of, or any change in the rate of, any Excluded
Tax payable by such Lender or the Issuing Bank); or CREDIT AGREEMENT 36




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(iii) impose on any Lender or the Issuing Bank or the London interbank
market any other condition, cost or expense affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or participation and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan), or to increase the cost to such Lender or
the Issuing Bank of participating in, issuing or maintaining any Letter of
Credit (or of maintaining its obligation to participate in or to issue 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 any other amount) then, upon request of such Lender or the Issuing Bank,
the 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, as the case may be, for such additional costs incurred or
reduction suffered. (b) Capital Requirements. If any Lender or the Issuing Bank determines
that any Change in Law affecting such Lender or the Issuing Bank or any
lending office of such Lender or such Lenders or the Issuing Banks holding
company, if any, 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, the Commitments of such Lender 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 the 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) Certificates for Reimbursement. 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 2.19 and delivered to the
Borrower shall be conclusive absent manifest error. The Borrower shall pay
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. CREDIT AGREEMENT 37




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(d) Delay in Requests. Failure or delay on the part of any Lender or the
Issuing Bank to demand compensation pursuant to this Section 2.19 shall not
constitute a waiver of such Lenders or the Issuing Banks right to demand
such compensation, provided that the Borrower shall not be required to
compensate a Lender or the Issuing Bank pursuant to this Section 2.19 for any
increased costs incurred or reductions suffered more than nine months prior to
the date that such Lender or the Issuing Bank, as the case may be, notifies
the Borrower of the Change in Law giving rise to such increased costs or
reductions and of such Lenders or the Issuing Banks intention to claim
compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive
effect thereof). The obligations of the Borrower pursuant to this Section
2.19 shall survive the termination of this Agreement and the payment of the
loans and all other amounts payable hereunder. 2.20 Taxes. (a) Payments Free of Taxes. Any and all payments by or
on account of any obligation of the Borrower hereunder or under any other Loan
Document shall be made free and clear of and without reduction or withholding
for any Indemnified Taxes or Other Taxes, provided that if the Borrower shall
be required by applicable law to deduct any Indemnified Taxes (including any
Other Taxes) from such payments, then (i) the sum payable shall be increased
as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.20) 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 been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower
shall timely pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law. (b) Payment of Other Taxes by the Borrower. Without limiting the
provisions of paragraph (a) above, the Borrower shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable
law. (c) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent, each Lender and the Issuing Bank, within 10 days after
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section 2.20) paid by the
Administrative Agent, such Lender or the Issuing Bank, as the case may be, and
any penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability
delivered to the Borrower by a Lender or the Issuing Bank (with a copy to the
Administrative Agent), 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) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent. CREDIT AGREEMENT 38




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(e) Status of Lenders. Each Lender that is a U.S. person as that term is
defined in Section 7701(a)(30) of the Code, other than a Lender that may be
treated as an exempt recipient based on the indicators described in Treasury
Regulation Section 1.6049-4(c)(1)(ii), hereby agrees that it shall, on or
prior to the date on which such Lender becomes a Lender under this Agreement
(or in the case of a participant pursuant to a participation, on or before the
date such Person becomes a participant hereunder), deliver to the Borrower and
the Administrative Agent (or (A) in the case of a participant, to the Lender
from which the related participation shall have been purchased or (B) in the
case of a Related Lender Assignment that is not disclosed to the
Administrative Agent or the Borrower pursuant to Section 10.6, to the
assigning Lender) two accurate, complete and signed copies of Internal Revenue
Service Form W-9 or successor form certifying that such Lender (or
participant, if applicable) is on the date of delivery thereof entitled to an
exemption from United States backup withholding tax. Any Foreign Lender shall deliver to the Borrower and the Administrative
Agent (or (A) in the case of a participant, to the Lender from which the
related participation shall have been purchased or (B) in the case of an
assignee pursuant to a Related Lender Assignment that is not disclosed to the
Administrative Agent in accordance with Section 10.6(b), to the assigning
Lender) (in such number of copies as shall be requested by the recipient) on or
prior to the date on which such Foreign Lender becomes a Lender under this
Agreement (or in the case of a participant pursuant to a participation, on or
before the date such Person becomes a participant hereunder) (and from time to
time thereafter upon the written request of the Borrower or the Administrative
Agent), whichever of the following is applicable: (i) duly completed copies of
Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an
income tax treaty to which the United States is a party, (ii) duly completed
copies of Internal Revenue Service Form W-8ECI or duly completed copies of
Internal Revenue Service Form W-8IMY or any subsequent versions thereof or
successors thereto, in each case claiming complete exemption from, or a reduced
rate of, U.S. Federal withholding tax on payments by the Borrower under this
Agreement. In addition, in the case of a Foreign Lender claiming the benefits
of the exemption for portfolio interest under section 871(h) or 881(c) of the
Code, such Foreign Lender represents that such Foreign Lender is not (A) a
bank within the meaning of section 881(c)(3)(A) of the Code, (B) a 10
percent shareholder of the Borrower within the meaning of section 881(c)(3)(B)
of the Code, or (C) a controlled foreign corporation described in section
881(c)(3)(C) of the Code. No Foreign Lender shall be required to deliver any
form pursuant to this Section 2.20(e) that such Lender is not legally able to
deliver. (f) Treatment of Certain Refunds. If the Administrative Agent, a Lender
or the Issuing Bank determines, in its sole discretion, that it has received a
refund of any Taxes or Other Taxes as to which it has been indemnified by the
Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section 2.20, it shall pay to the Borrower an amount equal to
such refund (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrower under this Section 2.20 with respect to the Taxes
or Other Taxes giving rise to such refund), net of all out-of-pocket expenses
of the Administrative Agent, such Lender or the Issuing Bank, as the case may
be, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund), provided that the
Borrower, upon the request of the Administrative Agent, such Lender or the
Issuing Bank, agrees to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or the Issuing Bank in the
event the CREDIT AGREEMENT 39




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Administrative Agent, such Lender or the Issuing Bank is required to repay
such refund to such Governmental Authority. This paragraph shall not be
construed to require the Administrative Agent, any Lender or the Issuing Bank
to make available its tax returns (or any other information relating to its
taxes that it deems confidential) to the Borrower or any other Person. (g) The agreements in this Section 2.20 shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder. 2.21 Indemnity. The Borrower agrees to indemnify each Lender and to hold
each Lender harmless from any loss or expense that such Lender may sustain or
incur as a consequence of (a) default by the Borrower in making a borrowing of,
conversion into or continuation of Eurodollar Loans after the Borrower has
given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment of or
conversion from Eurodollar Loans after the Borrower has given a notice thereof
in accordance with the provisions of this Agreement or (c) the making of a
prepayment of Eurodollar Loans on a day that is not the last day of an Interest
Period with respect thereto. Such indemnification may include an amount equal
to the excess, if any, of (i) the amount of interest that would have accrued on
the amount so prepaid, or not so borrowed, converted or continued, for the
period from the date of such prepayment or of such failure to borrow, convert
or continue to the last day of such Interest Period (or, in the case of a
failure to borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable rate of
interest for such Loans provided for herein (excluding, however, the Applicable
Margin included therein, if any) over (ii) the amount of interest (as
reasonably determined by such Lender) that would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank eurodollar market. A certificate as to any
amounts payable pursuant to this Section 2.21 submitted to the Borrower by any
Lender shall be conclusive in the absence of manifest error. This covenant
shall survive the termination of this Agreement and the payment of the Loans
and all other amounts payable hereunder for a period of one year. 2.22 Change of Lending Office. If any Lender requests compensation under
Section 2.19, or requires the Borrower to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.20, then such Lender shall use reasonable efforts to designate a
different lending office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices, branches
or affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section
2.19 or 2.20, as the case may be, in the future and (ii) would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment. 2.23 Replacement of Lenders. If any Lender requests compensation under
Section 2.19, or if the Borrower is required to pay any additional amount to
any Lender or any Governmental Authority for the account of any Lender pursuant
to Section 2.20, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Borrower may, at its sole expense and effort, upon notice
to such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in, and CREDIT AGREEMENT 40




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consents required by, Section 10.6), all of its interests, rights and
obligations under this Agreement and the related Loan Documents (other than
indemnification rights that survive the termination of this Agreement and
repayment of the Loans) to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment),
provided that: (i) the Borrower shall have paid to the Administrative Agent the
assignment fee specified in Section 10.6; (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans and
participations in an amount equal to unreimbursed drawings that have been
funded by such Lender in respect of LC Obligations, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other
Loan Documents (including any amounts under Section 2.21) from the assignee (to
the extent of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts); (iii) in the case of any such
assignment resulting from a claim for compensation under Section 2.19 or
payments required to be made pursuant to Section 2.20, such assignment will
result in a reduction in such compensation or payments thereafter; and (iv)
such assignment does not conflict with applicable law. A Lender shall not be required to make any such assignment or delegation
if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply. SECTION 3. LETTERS OF CREDIT 3.1 L/C Commitment. (a) Subject to the terms and conditions hereof, each
Issuing Bank, in reliance on the agreements of the other Revolving Lenders set
forth in Section 3.4(a), agrees to issue letters of credit (Letters of
Credit) for the account of the Borrower or any Restricted Subsidiary on any
Business Day until 30 days prior to the Revolving Termination Date in such form
as may be approved from time to time by such Issuing Bank; provided that no
Issuing Bank shall have any obligation to issue any Letter of Credit if, after
giving effect to such issuance, (i) the L/C Obligations would exceed the L/C
Commitment or (ii) the aggregate amount of the Available Revolving Commitments
would be less than zero. Each Letter of Credit shall (i) be denominated in
Dollars and (ii) expire no later than the earlier of (x) the first anniversary
of its date of issuance and (y) the date that is five Business Days prior to
the Revolving Termination Date, provided that any Letter of Credit with a
one-year term may provide for the renewal thereof for additional one-year
periods (which shall in no event extend beyond the date referred to in clause
(y) above). (b) Each Letter of Credit shall be subject to the Uniform Customs and, to
the extent not inconsistent therewith, the laws of the State of New York. (c) Each Issuing Bank shall not at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause such
Issuing Bank or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law. 3.2 Procedure for Issuance of Letter of Credit. The Borrower may from
time to time request that an Issuing Bank issue a Letter of Credit by
delivering to such Issuing Bank at its address for notices specified herein an
Application therefor, completed to the satisfaction of such Issuing Bank, and
such other certificates, documents and other papers and information as such
Issuing Bank may request. Upon receipt of any Application, such Issuing Bank
will process such Application and the certificates, documents and other papers
and information delivered to it in CREDIT AGREEMENT 41




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connection therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby (but in no event shall
such Issuing Bank be required to issue any Letter of Credit earlier than three
Business Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or as
otherwise may be agreed to by such Issuing Bank and the Borrower. Such Issuing
Bank shall furnish a copy of such Letter of Credit to the Borrower promptly
following the issuance thereof. Such Issuing Bank shall promptly furnish to
the Administrative Agent, which shall in turn promptly furnish to the Lenders
notice of the issuance of each Letter of Credit (including the amount thereof). 3.3 Fees and Other Charges. (a) The Borrower will pay a fee on all
outstanding Letters of Credit at a per annum rate equal to the Applicable
Margin then in effect with respect to Eurodollar Loans under the Revolving
Facility, shared ratably among the Revolving Lenders and payable quarterly in
arrears on each L/C Fee Payment Date after the issuance date of the relevant
Letter of Credit. In addition, the Borrower shall pay to the Issuing Banks for
their respective own accounts a fronting fee of (i) in the case of CSFB, 0.25%
per annum and (ii) in the case of any other Issuing Bank, a rate not to exceed
0.25% per annum as such other Lender and the Borrower shall agree, in each case
on the undrawn and unexpired amount of each Letter of Credit issued by such
Issuing Bank, payable quarterly in arrears on each L/C Fee Payment Date after
the issuance date of such Letter of Credit. (b) In addition to the foregoing fees, the Borrower shall pay or
reimburse each Issuing Bank for such normal and customary costs and expenses as
are incurred or charged by such Issuing Bank in issuing, negotiating, effecting
payment under, amending or otherwise administering any Letter of Credit issued
by such Issuing Bank. 3.4 L/C Participations. (a) Each Issuing Bank irrevocably agrees to
grant and hereby grants to each L/C Participant, and, to induce such Issuing
Bank to issue the Letters of Credit to be issued by it hereunder, each L/C
Participant irrevocably agrees to accept and purchase and hereby accepts and
purchases from such Issuing Bank, on the terms and conditions hereinafter
stated, for such L/C Participants own account and risk an undivided interest
equal to such L/C Participants Revolving Percentage in such Issuing Banks
obligations and rights under each Letter of Credit issued by such Issuing Bank
hereunder and the amount of each draft paid by such Issuing Bank thereunder.
Each L/C Participant unconditionally and irrevocably agrees with each Issuing
Bank that, if a draft is paid under any Letter of Credit for which such Issuing
Bank is not reimbursed in full by the Borrower in accordance with the terms of
this Agreement, such L/C Participant shall pay to such Issuing Bank upon demand
at such Issuing Banks address for notices specified herein an amount equal to
such L/C Participants Revolving Percentage of the amount of such draft, or any
part thereof, that is not so reimbursed. (b) If any amount required to be paid by any L/C Participant to an Issuing
Bank pursuant to Section 3.4(a) in respect of any unreimbursed portion of any
payment made by such Issuing Bank under any Letter of Credit issued by such
Issuing Bank is paid to such Issuing Bank within three Business Days after the
date such payment is due, such L/C Participant shall pay to such Issuing Bank
on demand an amount equal to the product of (i) such amount, times (ii) the
daily average Federal Funds Effective Rate during the period from and including
the date such payment is CREDIT AGREEMENT 42




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required to the date on which such payment is immediately available to
such Issuing Bank, times (iii) a fraction the numerator of which is the number
of days that elapse during such period and the denominator of which is 360. If
any such amount required to be paid by any L/C Participant pursuant to Section
3.4(a) is not made available to such Issuing Bank by such L/C Participant
within three Business Days after the date such payment is due, such Issuing
Bank shall be entitled to recover from such L/C Participant, on demand, such
amount with interest thereon calculated from such due date at the rate per
annum applicable to ABR Loans under the Revolving Facility. A certificate of
such Issuing Bank submitted to any L/C Participant with respect to any amounts
owing under this Section 3.4 shall be conclusive in the absence of manifest
error. (c) Whenever, at any time after an Issuing Bank has made payment under any
Letter of Credit issued by such Issuing Bank and has received from any L/C
Participant its pro rata share of such payment in accordance with Section
3.4(a), such Issuing Bank receives any payment related to such Letter of Credit
(whether directly from the Borrower or otherwise, including proceeds of
Collateral applied thereto by such Issuing Bank), or any payment of interest on
account thereof, such Issuing Bank will distribute to such L/C Participant its
pro rata share thereof; provided, however, that in the event that any such
payment received by such Issuing Bank shall be required to be returned by such
Issuing Bank, such L/C Participant shall return to such Issuing Bank the
portion thereof previously distributed by such Issuing Bank to it. 3.5 Reimbursement Obligation of the Borrower. The Borrower agrees to
reimburse each Issuing Bank on each date on which such Issuing Bank notifies
the Borrower of the date and amount of a draft presented under any Letter of
Credit issued by such Issuing Bank and paid by such Issuing Bank for the amount
of (a) such draft so paid and (b) any taxes, fees, charges or other costs or
expenses incurred by such Issuing Bank in connection with such payment. Each
such payment shall be made to such Issuing Bank at its address for notices
specified herein in lawful money of the United States and in immediately
available funds. Interest shall be payable on any and all amounts remaining
unpaid by the Borrower under this Section 3 from the date such amounts become
payable (whether at stated maturity, by acceleration or otherwise) until
payment in full at the rate set forth in (i) until the second Business Day
following the date of the applicable drawing, Section 2.15(b) and (ii)
thereafter, Section 2.15(c). 3.6 Obligations Absolute. The Borrowers obligations under this Section 3
shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment that the
Borrower may have or have had against any Issuing Bank, any beneficiary of a
Letter of Credit or any other Person. The Borrower also agrees with each
Issuing Bank that such Issuing Bank shall not be responsible for, and the
Borrowers Reimbursement Obligations under Section 3.5 shall not be affected
by, among other things, the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among the Borrower and
any beneficiary of any Letter of Credit issued by such Issuing Bank or any
other party to which such Letter of Credit may be transferred or any claims
whatsoever of the Borrower against any beneficiary of such Letter of Credit or
any such transferee. Each Issuing Bank shall not be liable for any error,
omission, interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with any Letter of Credit
issued by such Issuing Bank, except for errors or omissions found by a final
and nonappealable decision of a court CREDIT AGREEMENT 43




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of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of such Issuing Bank. The Borrower agrees that any action
taken or omitted by each Issuing Bank under or in connection with any Letter of
Credit issued by such Issuing Bank or the related drafts or documents, if done
in the absence of gross negligence or willful misconduct and in accordance with
the standards of care specified in the Uniform Commercial Code of the State of
New York, shall be binding on the Borrower and shall not result in any
liability of such Issuing Bank to the Borrower. 3.7 Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the relevant Issuing Bank shall promptly
notify the Borrower of the date and amount thereof. The responsibility of such
Issuing Bank to the Borrower in connection with any draft presented for payment
under any Letter of Credit issued by such Issuing Bank shall, in addition to
any payment obligation expressly provided for in such Letter of Credit, be
limited to determining that the documents (including each draft) delivered
under such Letter of Credit in connection with such presentment are
substantially in conformity with such Letter of Credit. 3.8 Applications. To the extent that any provision of any Application
related to any Letter of Credit is inconsistent with the provisions of this
Section 3, the provisions of this Section 3 shall apply. SECTION 4. REPRESENTATIONS AND WARRANTIES To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans and issue or participate in the Letters of
Credit, Holdings and the Borrower hereby jointly and severally represent and
warrant to the Administrative Agent and each Lender that: 4.1 Financial Condition. (a) The unaudited pro forma consolidated balance
sheet of the Borrower and its consolidated Subsidiaries (the Pro Forma Balance
Sheet), copies of which have heretofore been furnished to the Administrative
Agent on the Closing Date and each Lender thereafter, has been prepared giving
effect (as if such events had occurred on such date) to (i) the Loans to be
made and the use of the proceeds thereof and (ii) the payment of fees and
expenses in connection with the foregoing. The Pro Forma Balance Sheet has
been prepared based upon the best information available to the Borrower as of
the date of delivery thereof, and presents fairly on a pro forma basis the
estimated financial position of the Borrower and its consolidated Subsidiaries
as at October 2, 2004, assuming that the events specified in the preceding
sentence had actually occurred at such date. (b) (i) The audited consolidated balance sheets of the Borrower and its
Subsidiaries as at fiscal years ending 2001, 2002 and 2003 and the related
consolidated statements of income and of cash flows for such fiscal years ended
on such date and, reported on by and accompanied by an unqualified report from
KPMG and (ii) the unaudited consolidated balance sheets of the Borrower and its
Subsidiaries for the fiscal quarters ended nearest to March 31, 2004 and June
30, 2004 present fairly in all material respects the consolidated financial
condition of the Borrower and its Subsidiaries as at such date, and the
consolidated results of its operations and its consolidated cash flows for the
fiscal year then ended. All such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP (except
as approved by the aforementioned firm of accountants and disclosed therein).
Except as disclosed on CREDIT AGREEMENT 44




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Schedule 4.1, the Borrower and its Restricted Subsidiaries do not have any
material Guarantee Obligations, contingent liabilities and liabilities for
taxes, or any long-term leases or unusual forward or long-term commitments,
including any interest rate or foreign currency swap or exchange transaction or
other obligation in respect of derivatives (as of the date no earlier than 30
days prior to the Closing Date), that are not reflected in the most recent
financial statements referred to in this paragraph. During the period from the
end of fiscal year 2003 to and including the Closing Date, there has been no
Disposition by the Borrower of any material part of its business or property. 4.2 No Change. Since December 31, 2003 there has been no development or
event that has had or could reasonably be expected to have a Material Adverse
Effect. 4.3 Corporate Existence; Compliance with Law. Each of Holdings, the
Borrower and its Restricted Subsidiaries (a) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (b) has the corporate power and authority, and the legal right,
to own and operate its property, to lease the property it operates as lessee
and to conduct the business in which it is currently engaged, (c) is duly
qualified and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification except where failure to do so could not reasonably
be expected to have a Material Adverse Effect and (d) is in compliance with all
Requirements of Law except to the extent that the failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect. 4.4 Corporate Power; Authorization; Enforceable Obligations. Each Loan
Party has the corporate power and authority, and the legal right, to make,
deliver and perform the Loan Documents to which it is a party and, in the case
of the Borrower, to borrow hereunder. Each Loan Party has taken all necessary
corporate action to authorize the execution, delivery and performance of the
Loan Documents to which it is a party and, in the case of the Borrower, to
authorize the borrowings on the terms and conditions of this Agreement. No
consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required in
connection with the borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of this Agreement or any of the Loan
Documents, except (i) consents, authorizations, filings and notices described
in Schedule 4.4, which consents, authorizations, filings and notices have been
obtained or made and are in full force and effect and (ii) the filings referred
to in Section 4.19. Each Loan Document has been duly executed and delivered on
behalf of each Loan Party party thereto. This Agreement constitutes, and each
other Loan Document upon execution will constitute, a legal, valid and binding
obligation of each Loan Party party thereto, enforceable against each such Loan
Party in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law). 4.5 No Legal Bar. The execution, delivery and performance of this
Agreement and the other Loan Documents, the issuance of Letters of Credit, the
borrowings hereunder and the use of the proceeds thereof will not violate any
Requirement of Law or any Contractual Obligation of Holdings, the Borrower or
any of its Restricted Subsidiaries and will not result in, or require, the CREDIT AGREEMENT 45




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creation or imposition of any Lien on any of their respective properties
or revenues pursuant to any Requirement of Law or any such Contractual
Obligation (other than the Liens created by the Security Documents). No
Requirement of Law or Contractual Obligation applicable to the Borrower or any
of its Restricted Subsidiaries could reasonably be expected to have a Material
Adverse Effect. 4.6 Litigation. Except as set forth in Schedule 4.6, no litigation,
investigation or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the knowledge of Holdings or the Borrower,
threatened by or against Holdings, the Borrower or any of its Restricted
Subsidiaries or against any of their respective properties or revenues (a) with
respect to any of the Loan Documents or any of the transactions contemplated
hereby or thereby, or (b) that could reasonably be expected to have a Material
Adverse Effect. 4.7 No Default. Neither Holdings, the Borrower nor any of its Restricted
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect that could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing. 4.8 Ownership of Property; Liens. (a) Each of Holdings, the Borrower and
its Restricted Subsidiaries has good title in fee simple to, or a valid
leasehold interest in, all its material real property, and good title to, or a
valid leasehold interest in, all its other material property, and none of such
property is subject to any Lien except as permitted by Section 7.3. (b) As of the Closing Date, Schedule 4.8 contains a true, accurate and
complete list of (i) all owned real property (the Owned Real Property), and
(ii) all leases, subleases or assignments of leases to the extent the annual
rent due thereunder exceeds $140,000 (together with all amendments,
modifications, supplements, renewals or extensions of any thereof) where
Borrower, Holdings or any Domestic Subsidiary is tenant (whether directly or as
an assignee or successor in interest) under such lease, sublease or assignment
(the Leased Real Property; together with the Owned Real Property the Real
Property). Each agreement listed in clause (ii) of the immediately preceding
sentence is in full force and effect and neither Borrower, Holdings nor any
Domestic Subsidiary has any knowledge of any default that has occurred and is
continuing thereunder on the part of landlord or tenant, and each such
agreement constitutes the legally valid and binding obligation of the tenant
party thereto, enforceable against such party in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors rights generally
or by equitable principles. (c) The Real Property represents all owned and leased real property used
in or necessary for the operation of Borrowers business as it is currently
conducted and operated. (d) To the knowledge of any Responsible Officer, there is no, and the
Borrower has not received any written notice of an existing or threatened
change in the zoning classification of any Owned Real Property or Leased Real
Property (or any portion thereof) from that in effect on the date of this
Agreement, in each instance, which would have a Material Adverse Effect on the
value or use of the Real Property. CREDIT AGREEMENT 46




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4.9 Intellectual Property. Holdings, the Borrower and each of its
Restricted Subsidiaries owns, or is licensed to use, all Intellectual Property
necessary for the conduct of its business as currently conducted. Other than
as set forth on Schedule 4.9, no material claim has been asserted and is
pending by any Person challenging or questioning the use of any Intellectual
Property or the validity or effectiveness of any Intellectual Property, nor
does Holdings or the Borrower know of any valid basis for any such claim. The
use of Intellectual Property by Holdings, the Borrower and its Restricted
Subsidiaries does not infringe on the rights of any Person in any manner that
is reasonably likely to have a Material Adverse Effect. 4.10 Taxes. Each of Holdings, the Borrower and each of its Restricted
Subsidiaries has filed or caused to be filed all federal, state and other
material tax returns that are required to be filed and has paid all taxes shown
to be due and payable on said returns or on any assessments made against it or
any of its property and all other taxes, fees or other charges imposed on it or
any of its property by any Governmental Authority (other than any the amount or
validity of that are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have
been provided on the books of Holdings, the Borrower or its Restricted
Subsidiaries, as the case may be); no tax Lien has been filed, and, to the
knowledge of Holdings and the Borrower, no claim is being asserted, with
respect to any such tax, fee or other charge. 4.11 Federal Regulations. Neither Holdings, the Borrower nor any of its
Subsidiaries is engaged principally, or as one of its important activities in
the business of extending credit for the purpose (whether immediate, incidental
or ultimate) of buying or carrying Margin Stock. No part of the proceeds of
any Loans will be used directly or indirectly for the purpose (whether
immediate, incidental or ultimate) of buying or carrying Margin Stock or for
any purpose that violates the provisions of the regulations of the Board. If
requested by any Lender or the Administrative Agent, the Borrower will furnish
to each Lender and the Administrative Agent a statement in conformity with the
requirements of Federal Reserve Form FR U-1 or FR G-3 referred to in Regulation
U, as to demonstrate the compliance of any Borrowing with Regulation U. 4.12 Labor Matters. Except as, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect: (a) there are no strikes or other
labor disputes against Holdings, the Borrower or any of its Restricted
Subsidiaries pending or, to the knowledge of Holdings or the Borrower,
threatened; (b) the hours worked by and the payments made to employees of
Holdings, the Borrower and its Restricted Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Requirement
of Law dealing with such matters; and (c) all payments due from Holdings, the
Borrower or any of its Restricted Subsidiaries on account of employee health
and welfare insurance have been paid or accrued as a liability on the books of
Holdings, the Borrower or the relevant Subsidiary. 4.13 ERISA. Neither a Reportable Event nor an accumulated funding
deficiency (within the meaning of Section 412 of the Code or Section 302 of
ERISA) in excess of $5,000,000 in the aggregate has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Plan, and each Plan has complied in all CREDIT AGREEMENT 47




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material respects with the applicable provisions of ERISA and the Code
except as set forth on Schedule 4.13 and where the failure to so comply could
not reasonably be expected to have a Material Adverse Effect. Except as set
forth on Schedule 4.13, no termination of a Single Employer Plan has occurred,
and no Lien in favor of the PBGC or a Plan has arisen, during such five-year
period with respect to which there is an unsatisfied liability. The present
value of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued benefits
by an amount that could reasonably be expected to have a Material Adverse
Effect. Neither the Borrower nor any Commonly Controlled Entity has had a
complete or partial withdrawal from any Multiemployer Plan that has resulted or
could reasonably be expected to result in a material liability under ERISA that
could reasonably be expected to have a Material Adverse Effect, and neither the
Borrower nor any Commonly Controlled Entity would become subject to any
material liability under ERISA that could reasonably be expected to have a
Material Adverse Effect if the Borrower or any such Commonly Controlled Entity
were to withdraw completely from all Multiemployer Plans as of the valuation
date most closely preceding the date on which this representation is made or
deemed made. No such Multiemployer Plan is in Reorganization or Insolvent. 4.14 Investment Company Act; Other Regulations. No Loan Party is an
investment company, or a company controlled by an investment company,
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) that limits its ability to incur Indebtedness. No
Loan Party is subject to regulation under the Public Utility Holding Company
Act of 1935, the Federal Power Act or under any other federal or state statute
or regulation which may limit its ability to incur Indebtedness or which may
otherwise render all or any portion of the Obligations unenforceable. 4.15 Subsidiaries. Except as disclosed to the Administrative Agent by
the Borrower in writing from time to time after the Closing Date, (a) Schedule
4.15 sets forth the name and jurisdiction of incorporation of each Subsidiary
and, as to each such Subsidiary, the percentage of each class of Capital Stock
owned by any Loan Party and the designation of such Subsidiary as a Restricted
Subsidiary or an Unrestricted Subsidiary and (b) there are no outstanding
subscriptions, options, warrants, calls, rights or other agreements or
commitments (other than stock options granted to employees or directors and
directors qualifying shares) of any nature relating to any Capital Stock of
the Borrower or any Subsidiary, except as created by the Loan Documents. 4.16 Use of Proceeds. (a) The proceeds of the Term Loans shall be
applied to repay in full the obligations under the Existing Credit Facilities,
to and pay related fees and expenses, as indicated in the Sources and Uses
Table, and for general corporate purposes. (b) The proceeds of the Revolving Loans and the Swingline Loans, and the
Letters of Credit, shall be used to finance the working capital needs and
general corporate purposes of the Borrower and its Subsidiaries in the
ordinary course of business, including Permitted Acquisitions. CREDIT AGREEMENT 48




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4.17 Environmental Matters. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect: (a) the facilities and properties owned, leased or operated by Holdings,
the Borrower or any of its Subsidiaries (the Properties) do not contain, and
have not previously contained, any Materials of Environmental Concern in
amounts or concentrations or under circumstances that constitute or
constituted a violation of, or could give rise to liability under, any
Environmental Law; (b) neither Holdings, the Borrower nor any of its Subsidiaries has
received or is aware of any notice of violation, alleged violation,
non-compliance, liability or potential liability regarding environmental
matters or compliance with Environmental Laws with regard to any of the
Properties or the business operated by Holdings, the Borrower or any of its
Subsidiaries (the Business), nor does Holdings or the Borrower have
knowledge or reason to believe that any such notice will be received or is
being threatened; (c) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a
location that could give rise to liability under, any Environmental Law, nor
have any Materials of Environmental Concern been generated, treated, stored or
disposed of at, on or under any of the Properties in violation of, or in a
manner that could give rise to liability under, any applicable Environmental
Law; (d) no judicial proceeding or governmental or administrative action is
pending or, to the knowledge of Holdings and the Borrower, threatened, under
any Environmental Law to which Holdings, the Borrower or any Subsidiary is or
will be named as a party with respect to the Properties or the Business, nor
are there any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the Properties or the
Business; (e) there has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related to
the operations of Holdings, the Borrower or any Subsidiary in connection with
the Properties or otherwise in connection with the Business, in violation of
or in amounts or in a manner that could give rise to liability under
Environmental Laws; (f) the Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, with all
applicable Environmental Laws, and there is no contamination at, under or
about the Properties or violation of any Environmental Law with respect to the
Properties or the Business; and (g) neither Holdings, the Borrower nor any of its Subsidiaries has
assumed any liability of any other Person under Environmental Laws. 4.18 Accuracy of Information, etc. No statement or information contained
in this Agreement, any other Loan Document, the Confidential Information
Memorandum or any other document, certificate or statement furnished by or on
behalf of any Loan Party to the Administrative Agent or the Lenders, or any of
them, for use in connection with the transactions CREDIT AGREEMENT 49




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contemplated by this Agreement or the other Loan Documents, contained as
of the date such statement, information, document or certificate was so
furnished (or, in the case of the Confidential Information Memorandum, as of
the Closing Date), any untrue statement of a material fact or omitted to state
a material fact necessary to make the statements contained herein or therein
not misleading. The projections and pro forma financial information contained
in the materials referenced above are based upon good faith estimates and
assumptions believed by management of the Borrower to be reasonable at the
time made, it being recognized by the Lenders that such financial information
as it relates to future events is not to be viewed as fact and that actual
results during the period or periods covered by such financial information may
differ from the projected results set forth therein by a material amount.
There is no fact known to any Loan Party that could reasonably be expected to
have a Material Adverse Effect that has not been expressly disclosed herein,
in the other Loan Documents, in the Confidential Information Memorandum or in
any other documents, certificates and statements furnished to the
Administrative Agent and the Lenders for use in connection with the
transactions contemplated hereby and by the other Loan Documents. 4.19 Security Documents. (a) The Guarantee and Collateral Agreement
is effective to create in favor of the Collateral Agent, for the benefit of
the Lenders, a legal, valid and enforceable security interest in the
Collateral described therein and proceeds thereof. In the case of the Pledged
Stock described in the Guarantee and Collateral Agreement, when stock
certificates representing such Pledged Stock are delivered to the Collateral
Agent (to the extent not heretofore so delivered), and in the case of the
other Collateral described in the Guarantee and Collateral Agreement, when
financing statements and other filings specified on Schedule 4.19(a) in
appropriate form are filed in the offices specified on Schedule 4.19(a) (to
the extent not heretofore so filed), the Guarantee and Collateral Agreement
shall (and, in the case of any stock certificates heretofore delivered and of
any financing statements and other filings heretofore filed, does) constitute
a fully perfected Lien on, to the extent perfection may occur by the filing of
financing statements specified in the Guarantee and Collateral Agreement and
as set forth in Section 6.10, and security interest in, all right, title and
interest of the Loan Parties in such Collateral and the proceeds thereof, as
security for the Obligations (as defined in the Guarantee and Collateral
Agreement), in each case prior and superior in right to any other Person. (b) Each of the Mortgages is effective to create in favor of the
Collateral Agent, for the benefit of the Lenders, a legal, valid and
enforceable Lien on the Mortgaged Properties described therein and proceeds
thereof, and when the Mortgages are filed in the offices specified on Schedule
4.19(b), each such Mortgage shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in the
Mortgaged Properties and the proceeds thereof, as security for the Obligations
(as defined in the relevant Mortgage), in each case prior and superior in
right to any other Person (except Liens permitted by Section 7.3 and Liens in
favor of JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank) and
Mercantile Bank of St. Louis, NA, the release of which Borrower is obligated
to pursue under the terms hereof, which liens no longer secure indebtedness
owed to such parties). 4.20 Solvency. Each Loan Party is, and after giving effect to the
incurrence of all Indebtedness and obligations being incurred in connection
herewith and therewith will be and will continue to be, Solvent. CREDIT AGREEMENT 50




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4.21 Senior Indebtedness. (a) The Obligations constitute Senior
Indebtedness of the Borrower under and as defined in the Senior Subordinated
Note Indenture. The obligations of each Restricted Subsidiary under the
Guarantee and Collateral Agreement constitute Guarantor Senior Indebtedness
of such Restricted Subsidiary under and as defined in the Senior Subordinated
Note Indenture. (b) All borrowings of Loans and issuances of Letters of Credit permitted
under this Agreement are, and when incurred or issued will be, permitted under
(and shall give rise to no breach or violation of either of) the definitive
documentation relating to the Senior Subordinated Note Indenture and the
Senior Unsecured Notes and any refinancing indebtedness with respect thereto
or any other subordinated indebtedness. 4.22 Regulation H. Except as set forth on Schedule 4.22, 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 in which flood insurance has been made available
under the National Flood Insurance Act of 1968. 4.23 Mortgaged Properties. Based on the Borrowers good faith judgment,
except for property that is subject to the Liens under the Mortgages or is
referred to in Section 5.1(l) or set forth on Schedule 7.3(f), neither the
Borrower nor any of its Domestic Subsidiaries has a fee or leasehold interest
in any real property having a fair market value in excess of $2,000,000 as of
the Closing Date. SECTION 5. CONDITIONS PRECEDENT 5.1 Conditions to Effectiveness. The effectiveness of this Agreement, and
the obligation of any Lender to make Loans hereunder on the Closing Date, are
subject to the satisfaction of the following conditions precedent: (a) Credit Agreement; Guarantee and Collateral Agreement. The
Administrative Agent shall have received (i) this Agreement, executed and
delivered by Holdings, the Borrower, the Administrative Agent and each Lender
having a Term Commitment or a Revolving Commitment, (ii) the Guarantee and
Collateral Agreement, executed and delivered by the Borrower and each Guarantor
in existence on the Closing Date and (iii) an Acknowledgment and Consent in the
form attached to the Guarantee and Collateral Agreement, executed and delivered
by each Issuer (as defined therein), if any, that is not a Loan Party. (b) Financial Conditions. (i) The Borrowers Pro Forma EBITDA shall be
not less than $74,000,000 and (ii) as of the Closing Date, after giving effect
to the initial borrowings on the Closing Date and the repayment of the
obligations under the Existing Credit Facilities, the Borrowers Consolidated
Senior Secured Debt Ratio shall not be greater than 2.65 to 1.0. (c) Existing Indebtedness. (i) The Borrower and its Restricted
Subsidiaries shall have no Indebtedness for borrowed money outstanding as of
the Closing Date other than under the Facilities, the Senior Subordinated
Notes, the Senior Unsecured Notes and the other Indebtedness permitted by
Section 7.2 and (ii) the Existing Credit Facility and all liens securing
obligations under the Existing Credit Facility shall have been terminated. CREDIT AGREEMENT 51




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(d) Pro Forma Balance Sheet; Financial Statements; Financial Plan. The
Lenders shall have received (i) the Pro Forma Balance Sheet, (ii) the financial
statements of the Borrower and its Subsidiaries referred to in Section 4.1(b),
and (iii) the business plan of Borrower and its Subsidiaries for the fiscal
years 2004 through 2009 and for the fiscal quarter beginning with the fourth
fiscal quarter of 2004 through the fourth fiscal quarter 2006; and such
financial statements and plans shall not, in the reasonable judgment of the
Lenders, reflect any material adverse change in the consolidated financial
condition of the Borrower and its Subsidiaries as reflected in the financial
statements or projections previously furnished to the Lenders. (e) Approvals. All governmental and third party approvals (including
landlords and other consents) advisable in connection the continuing
operations of Holdings, the Borrower and its Restricted Subsidiaries and the
transactions contemplated hereby shall have been obtained and be in full force
and effect, except where the failure to do so could not reasonably be expected
to have a Material Adverse Effect. (f) Lien Searches. The Administrative Agent shall have received the
results of a recent lien, tax and judgment search in each of the jurisdictions
where assets of the Loan Parties are located or recorded, and such search shall
reveal no Liens on any of the assets of the Borrower or its Restricted
Subsidiaries except for Liens permitted by Section 7.3 or discharged on or
prior to the Closing Date pursuant to documentation satisfactory to the
Administrative Agent. (g) Fees. The Lenders and the Administrative Agent shall have received
all fees required to be paid, and all expenses for which invoices have been
presented (including the reasonable fees and expenses of legal counsel), shall
have been paid on or before the Closing Date. (h) Secretarys Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of each Loan Party,
dated the Closing Date, substantially in the form of Exhibit C, with
appropriate insertions and attachments. (i) Legal Opinions. The Administrative Agent shall have received the
following executed legal opinions: (i) an opinion of counsel to the Borrower
and its Restricted Subsidiaries, substantially in the form of Exhibit F and
(ii) of such other local counsel (including with respect to matters governed by
the law of the Kingdom of Denmark, provided that the Borrower may supply such
opinion with respect to the laws of Denmark within 30-days after the Closing
Date or such later date as the Administrative Agent may consent) as may
reasonably be required by the Administrative Agent (and the Borrower hereby
instructs each such counsel to deliver such opinion to the Lenders and the
Administrative Agent). (j) Pledged Stock; Stock Powers; Pledged Notes. The Collateral Agent
shall have received (i) the certificates representing the shares of Capital
Stock pledged pursuant to the Guarantee and Collateral Agreement, together with
an undated stock power for each such certificate executed in blank by a duly
authorized officer of the pledgor thereof and (ii) each promissory note (if
any) pledged to the Collateral Agent pursuant to the Guarantee and Collateral
Agreement endorsed (without recourse) in blank (or accompanied by an executed
transfer form in blank) by the pledgor thereof (or arrangements satisfactory to
the Collateral Agent for delivery thereof shall have been made). CREDIT AGREEMENT 52




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(k) Filings, Registrations and Recordings. Each document (including any
Uniform Commercial Code financing statement) required by the Security Documents
or under law or reasonably requested by the Administrative Agent to be filed,
registered or recorded in order to create in favor of the Administrative Agent,
for the benefit of the Lenders, a perfected Lien on the Collateral described
therein, prior and superior in right to any other Person (other than with
respect to Liens expressly permitted by Section 7.3), shall be in proper form
for filing, registration or recordation. (l) Mortgages, etc. The Collateral Agent shall have received (i) the
Mortgages for the properties listed on Schedule 5.1(l), as required by the
Collateral Agent each duly executed and delivered by the parties thereto, and
such other documentation of a type referred to in Section 6.13 relating to each
such Mortgage or the real property subject thereto as may reasonably be
required by the Collateral Agent (or arrangements satisfactory to the
Collateral Agent for delivery thereof shall have been made); (ii) evidence
satisfactory to Collateral Agent that Borrower has paid (A) to the title
company or to the appropriate governmental authorities all expenses and
premiums of the title company and all other sums required in connection with
the issuance of each title policy and (B) all recording and stamp taxes
(including mortgage recording and intangible taxes) payable in connection with
recording the Mortgages for each Owned Real Property (other than property
subject to the Clinton IDB and Ottawa IDB) in the appropriate real estate
records; (iii) legal opinions relating to the Mortgages described above with
respect to the Owned Real Properties located in the states of California,
Pennsylvania, Texas and Missouri, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Collateral Agent
and (iv) evidence of flood insurance with respect to each Owned Real Property
located in an area at high risk for flood in each case in compliance with any
applicable regulations of the Board of Governors of the Federal Reserve System,
in form and substance reasonably satisfactory to Collateral Agent. (m) No Violation. The Administrative Agent shall be satisfied that the
Borrower and its Subsidiaries are not subject to contractual or other
restrictions that would be violated by the incurrence of indebtedness
hereunder, including, without limitation, under the Senior Subordinated Notes
and the Senior Unsecured Notes. (n) Money Laundering and PATRIOT Act. The Lenders shall have received all
documentation and other information required by bank regulatory authorities
from the Borrower under applicable know your customer and anti-money
laundering rules and regulations, including without limitation the U.S.A.
PATRIOT Act. (o) Hedging Strategies. The Administrative Agent shall have reviewed and
be reasonably satisfied with the terms and provisions of, and arrangements
relating to the Borrowers hedging strategies with respect to commodity prices. (p) Insurance. The Administrative Agent and the Lenders shall have
received insurance certificates satisfying the requirements of Section 5.3(b)
of the Guarantee and Collateral Agreement. (q) Financial Condition Certificate. The Borrower shall have delivered to
the Administrative Agent a certificate from the chief financial officer of the
Borrower, substantially in the form of Exhibit H. CREDIT AGREEMENT 53




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(q) Additional Matters. All required corporate and other proceedings, and
all documents, instruments and other legal matters in connection with the
transactions contemplated by the Loan Documents shall be reasonably
satisfactory in form and substance to the Administrative Agent, and the
Administrative Agent shall have received such other documents in respect of the
transactions contemplated hereby as it shall reasonably request. 5.2 Conditions to Each Extension of Credit. The agreement of each Lender
to make any extension of credit requested to be made by it on any date
(including its initial extension of credit) is subject to the satisfaction of
the following conditions precedent: (a) Representations and Warranties. Each of the representations and
warranties (including, without limitation, Material Adverse Effect and
litigation representations) made by any Loan Party in or pursuant to the Loan
Documents shall be true and correct on and as of such date as if made on and as
of such date. (b) No Default. No Default or Event of Default shall have occurred and be
continuing on such date or after giving effect to the extensions of credit
requested to be made on such date. Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the conditions contained in this
Section 5.2 have been satisfied. SECTION 6. AFFIRMATIVE COVENANTS Holdings and the Borrower hereby jointly and severally agree that, so long
as the Commitments remain in effect, any Letter of Credit remains outstanding
or any Loan or other amount is owing to any Lender or the Administrative Agent
hereunder, each of Holdings and the Borrower shall and shall cause each of its
Restricted Subsidiaries to: 6.1 Financial Statements. Furnish to the Administrative Agent who will
distribute to each Lender: (a) as soon as available, but in any event within 100 days after the end
of each fiscal year of the Borrower, a copy of the audited consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at the end of such
year and the related audited consolidated statements of income and of cash
flows for such year, setting forth in each case in comparative form the figures
for the previous year, reported on without a going concern or like
qualification or exception, or qualification arising out of the scope of the
audit, by KPMG or other independent certified public accountants of nationally
recognized standing, reasonably acceptable to the Administrative Agent; CREDIT AGREEMENT 54




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(b) as soon as available, but in any event not later than 50 days after
the end of each of the first three quarterly periods of each fiscal year of the
Borrower, the unaudited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and of cash flows for such quarter
and the portion of the fiscal year through the end of such quarter, setting
forth in each case in comparative form the figures for the previous year,
certified by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments); and (c) as soon as available, but in any event not later than 30 days after
the end of each fiscal month of the Borrower (other than the fiscal month at
the end of a fiscal quarterly period), the unaudited consolidated balance sheet
of the Borrower and its consolidated Subsidiaries as at the end of such month
and the related unaudited consolidated statements of income and of cash flows
for such month and the portion of the fiscal year through the end of such
month, setting forth in each case in comparative form the figures for the
corresponding fiscal month in the previous fiscal year, certified by a
Responsible Officer as being fairly stated in all material respects (subject to
normal year-end audit adjustments). All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein). 6.2 Certificates; Other Information. Furnish to the Administrative Agent
and each Lender (or, in the case of clause (f), to the relevant Lender): (a) concurrently with the delivery of the financial statements referred
to in Section 6.1(a), a certificate of the independent certified public
accountants reporting on such financial statements stating that in making the
examination necessary therefor no knowledge was obtained of any Default or
Event of Default in respect of Sections 7.1, 7.2 and 7.7, except as specified
in such certificate; (b) concurrently with the delivery of any financial statements pursuant
to Section 6.1(a) and (b), (i) a certificate of a Responsible Officer stating
that, to the best of each such Responsible Officers knowledge, each Loan
Party during such period has observed or performed all of its covenants and
other agreements, and satisfied every condition, contained in this Agreement
and the other Loan Documents to which it is a party to be observed, performed
or satisfied by it, and that such Responsible Officer has obtained no
knowledge of any Default or Event of Default except as specified in such
certificate and (ii) (x) a Compliance Certificate containing all information
and calculations necessary for determining compliance by Holdings, the
Borrower and its Restricted Subsidiaries with the provisions of this Agreement
referred to therein as of the last day of the fiscal quarter or fiscal year of
the Borrower, as the case may be, and (y) to the extent not previously
disclosed to the Administrative Agent, a listing of any material Intellectual
Property acquired by any Loan Party since the date of the most recent list
delivered pursuant to this clause (y) (or, in the case of the first such list
so delivered, since the Closing Date); (c) as soon as available, and in any event no later than 90 days after
the end of each fiscal year of the Borrower, a detailed consolidated budget
for the following fiscal year CREDIT AGREEMENT 55




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(including a projected consolidated balance sheet of the Borrower and its
Restricted Subsidiaries as of the end of the following fiscal year, the
related consolidated statements of projected cash flow, projected changes in
financial position and projected income and a description of the underlying
assumptions applicable thereto), and if any revisions are made to such budget,
as soon as available, significant revisions of such budget with respect to
such fiscal year (collectively, the Budgets), which Budgets shall in each
case be accompanied by a certificate of a Responsible Officer stating that
such Budgets are based on reasonable estimates, information and assumptions
and that such Responsible Officer has no reason to believe that such Budgets
are incorrect or misleading in any material respect; (d) within 90 days after the end of each of the first three fiscal
quarters of the Borrower, and within 100 days after the end of the fourth
fiscal quarter of the Borrower, a narrative discussion and analysis of the
financial condition and results of operations of the Borrower and its
Restricted Subsidiaries for such fiscal quarter and for the period from the
beginning of the then current fiscal year to the end of such fiscal quarter,
as compared to the comparable periods of the previous year (with the delivery
of a quarterly or annual report filed with the SEC being deemed to satisfy the
requirement so long as it contains the management discussion and analysis
required by the instructions therefor on the Closing Date); (e) within five days after the same are sent, copies of all financial
statements and reports that Holdings or the Borrower sends to the holders of
any class of its debt securities or public equity securities and, within five
days after quarterly reports are filed and within 10 days after annual reports
are filed, copies of all financial statements and reports that Holdings or the
Borrower may make to, or file with, the SEC; and (f) promptly, such additional financial and other information as the
Administrative Agent may from time to time reasonably request. 6.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of Holdings, the Borrower or its Subsidiaries, as the case may be. 6.4 Maintenance of Existence; Compliance. (a) (i) Preserve, renew and
keep in full force and effect its corporate existence and (ii) take all
reasonable action to maintain all rights, privileges, franchises, licenses,
permits and regulatory authorizations necessary or desirable in the normal
conduct of its business, except, in each case, as otherwise permitted by
Section 7.4 and except, in the case of clause (ii) above, to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect; and (b) comply with all Contractual Obligations and Requirements of Law
except to the extent that failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect. 6.5 Maintenance of Property; Insurance. (a) Keep all property useful and
necessary in its business in good working order and condition, ordinary wear
and tear excepted and (b) maintain with financially sound and reputable
insurance companies insurance on all its property in at least such amounts and
against at least such risks (but including in any event public liability, CREDIT AGREEMENT 56




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product liability and business interruption) as are usually insured
against in the same general area by companies engaged in the same or a similar
business. 6.6 Inspection of Property; Books and Records; Discussions. (a) Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities and (b) permit
representatives of the Administrative Agent or any Lender including any advisor
engaged by the Administrative Agent for such purpose (provided that in the case
of each Lender or any of its advisors, such right shall be exercised at its own
expense and unless an Event of Default has occurred and is continuing, be
limited to once per fiscal year) to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time upon not less than one Business Days notice and as often as may
reasonably be desired and to discuss the business, operations, properties and
financial and other condition of Holdings, the Borrower and its Restricted
Subsidiaries with officers and employees of Holdings, the Borrower and its
Restricted Subsidiaries and with its independent certified public accountants. 6.7 Notices. Promptly give notice to the Administrative Agent and each
Lender of: (a) the occurrence of any Default or Event of Default; (b) any (i) default or event of default under any Contractual Obligation
of Holdings, the Borrower or any of its Restricted Subsidiaries or (ii)
litigation, investigation or proceeding that may exist at any time between
Holdings, the Borrower or any of its Restricted Subsidiaries and any
Governmental Authority, that in case of either clause (i) or (ii), if not cured
or if adversely determined, as the case may be, could reasonably be expected to
have a Material Adverse Effect; (c) any litigation or proceeding affecting Holdings, the Borrower or any
of its Restricted Subsidiaries in which the amount involved is $2,500,000 (or
its equivalent in other currencies, as determined by the Borrower in good faith
based on then prevailing exchange rates) or more and not covered by insurance
or in which injunctive or similar relief is sought; (d) the following events, as soon as possible and in any event within 30
days after the Borrower knows or has reason to know thereof: (i) the
occurrence of any Reportable Event with respect to any Plan, a failure by the
Borrower or any Commonly Controlled Entity to make any required contribution to
a Plan, the creation of any Lien in favor of the PBGC or a Plan or any
withdrawal from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or the taking of any
other action by the PBGC or the Borrower or any Commonly Controlled Entity or
any Multiemployer Plan with respect to the withdrawal from, or the termination,
Reorganization or Insolvency of, any Plan (other than the termination of a
Single Employer Plan by a Loan Party or any Commonly Controlled Entity pursuant
to a standard termination under Section 404(p) of ERISA); and (e) any development or event that has had or could reasonably be expected
to have a Material Adverse Effect. CREDIT AGREEMENT 57




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Each notice pursuant to this Section 6.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action Holdings, the Borrower or the relevant
Subsidiary proposes to take with respect thereto. 6.8 Environmental Laws. (a) Comply in all material respects with, and
ensure compliance in all material respects by all tenants and subtenants, if
any, with, all applicable Environmental Laws, and obtain and materially comply
with and maintain, and ensure that all tenants and subtenants obtain and comply
with and maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws. (b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws. 6.9 Interest Rate Protection. At all times, commencing one hundred
eighty (180) days after the Closing Date, the Borrower shall ensure that an
aggregate principal amount equal to 50% of the aggregate outstanding principal
amount of Consolidated Total Debt of the Borrower and its Subsidiaries is
either (x) fixed rate Indebtedness or (y) subject to Hedge Agreements in form
and substance reasonably satisfactory to the Administrative Agent with respect
to Indebtedness of Borrower and its Subsidiaries. 6.10 Additional Collateral, etc. (a) With respect to any property
acquired after the Closing Date with a fair market value in excess of $500,000
by the Borrower or any of its Domestic Subsidiaries (other than (w) any
property described in paragraph (b), (c) or (d) below, (x) any property subject
to a Lien expressly permitted by Section 7.3(g), (y) property acquired by any
Unrestricted Subsidiary or Joint Venture and (z) acquisition of any additional
interest in Doane International Pet Products LLC to the extent its limited
liability company agreement prohibits the granting of a security interest in
its limited liability interests (provided, however, that the Borrower shall use
commercially reasonable efforts to amend such agreement to permit such grant))
as to which the Administrative Agent, for the benefit of the Lenders, does not
have a perfected Lien, promptly (i) execute and deliver to the Administrative
Agent such amendments to the Guarantee and Collateral Agreement or such other
documents as the Administrative Agent deems necessary or advisable to grant to
the Administrative Agent, for the benefit of the Lenders, a security interest
in such property, (ii) amend Schedule 5.1(1) and (iii) take all actions
necessary or advisable to grant to the Administrative Agent, for the benefit of
the Lenders, a perfected first priority security interest in such property,
including the filing of Uniform Commercial Code financing statements in such
jurisdictions as may be required by the Guarantee and Collateral Agreement or
by law or as may be requested by the Administrative Agent. (b) With respect to any (a) fee interest in any real property having a
value (together with improvements thereof) of at least $2,000,000 acquired
after the Closing Date by the Borrower or any of its Domestic Subsidiaries
(other than (x) any such real property subject to a Lien expressly permitted by
Section 7.3(g) and (y) real property acquired by any Unrestricted Subsidiary or
Joint Venture); or (b) any property subject to the Clinton IDB and the Ottawa
IDB, following the repayment or termination of such IDB: (i) execute and
deliver a first priority Mortgage, in favor of CREDIT AGREEMENT 58




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the Administrative Agent, for the benefit of the Lenders, covering such
real property, (ii) if requested by the Administrative Agent, provide the
Lenders with (x) title and extended coverage insurance covering such real
property in an amount at least equal to the purchase price of such real
property (or such other amount as shall be reasonably specified by the
Administrative Agent) as well as a current ALTA survey thereof, together with a
surveyors certificate reasonably satisfactory to Administrative Agent and (y)
any consents or estoppels reasonably deemed necessary or advisable by the
Administrative Agent in connection with such Mortgage, each of the foregoing in
form and substance reasonably satisfactory to the Administrative Agent and
(iii) if requested by the Administrative Agent, deliver to the Administrative
Agent legal opinions relating to the matters described above, which opinions
shall be in form and substance, and from counsel, reasonably satisfactory to
the Administrative Agent. (c) With respect to any new Domestic Subsidiary or Domestic Joint Venture
created or acquired after the Closing Date by the Borrower or any of the
Domestic Subsidiaries (including the redesignation of an Unrestricted
Subsidiary as a Restricted Subsidiary), promptly (i) execute and deliver to the
Administrative Agent such amendments to the Guarantee and Collateral Agreement
as the Administrative Agent deems necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a perfected first
priority security interest in the Capital Stock of such new Domestic Subsidiary
or Domestic Joint Venture that is owned by the Borrower or any of its
Restricted Subsidiaries, (ii) deliver to the Administrative Agent the
certificates representing such Capital Stock, together with undated stock
powers, in blank, executed and delivered by a duly authorized officer of the
Borrower or such Domestic Subsidiary or Domestic Joint Venture, as the case may
be, (iii) cause such new Domestic Subsidiary (A) to become a party to the
Guarantee and Collateral Agreement, (B) to take such actions consistent with
Sections 6.10(a) and 6.10(b) necessary or advisable to grant to the
Administrative Agent for the benefit of the Lenders a perfected first priority
security interest in the Collateral described in the Guarantee and Collateral
Agreement with respect to such new Domestic Subsidiary including, the filing of
Uniform Commercial Code financing statements in such jurisdictions as may be
required by the Guarantee and Collateral Agreement or by law or as may be
requested by the Administrative Agent and (C) to deliver to the Administrative
Agent a certificate of such Domestic Subsidiary, substantially in the form of
Exhibit C, with appropriate insertions and attachments, and (iv) if requested
by the Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent. (d) With respect to any new Foreign Subsidiary or Foreign Joint Venture
created or acquired after the Closing Date by the Borrower or any of its
Domestic Subsidiaries (including the redesignation of an Unrestricted
Subsidiary as a Restricted Subsidiary), promptly (i) execute and deliver to the
Administrative Agent such amendments to the Guarantee and Collateral Agreement
as the Administrative Agent deems necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a perfected first
priority security interest in the Capital Stock of such new Foreign Subsidiary
or Foreign Joint Venture that is owned by the Borrower or any of its Restricted
Subsidiaries (provided that in no event shall more than 65% of the total
outstanding Capital Stock of any such new Foreign Subsidiary or Foreign Joint
Venture be required to be so pledged), (ii) deliver to the Administrative Agent
the certificates representing such Capital Stock, together with undated stock
powers, in blank, executed and delivered by a duly authorized officer of the
Borrower CREDIT AGREEMENT 59




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or such Foreign Subsidiary or Foreign Joint Venture, as the case may be,
and take such other action as may be necessary or, in the opinion of the
Administrative Agent, desirable to perfect the Administrative Agents security
interest therein, and (iii) if requested by the Administrative Agent, deliver
to the Administrative Agent legal opinions relating to the matters described
above, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent. (e) (i) With respect to each Operating Account and (ii) with respect to
each other Deposit Account and each other Securities Account (other than any
account the credit balance of which shall not exceed $250,000), enter into
and/or maintain in effect control agreements for the purpose of perfecting the
security interests therein granted pursuant to the Guarantee and Collateral
Agreement, in each case, with the Collateral Agent and the financial
institution at which such account is held, in form and substance reasonably
satisfactory to the Collateral Agent (and the Collateral Agent shall be
authorized for and on behalf of the Lenders to enter into each such agreement);
provided that, with respect to any such account established after the Closing
Date or any such account referred to in clause (ii) above existing on such date
that thereafter exceeds the minimum amount specified above with respect
thereto, the Borrower shall enter into such a control agreement therefor within
30 days after the later of the date such account is established or exceeds such
minimum amount. 6.11 No Speculative Transactions. The Borrower shall not, and shall not
permit any Restricted Subsidiary to, engage in any transaction involving
commodity options, futures contracts or similar transactions, except solely to
hedge against fluctuations in the prices of commodities owned or purchased by
it and the values of foreign currencies receivable or payable by it and
interest swaps, caps or collars, in each case in the ordinary course of
business and not for speculative purposes. 6.12 Credit Rating.The Borrower shall at all times use its commercially
reasonable efforts to cause the Loans to be rated at all times by S&P and by
Moodys. 6.13 Post Closing Obligations. CREDIT AGREEMENT 60




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(a) Borrower hereby agrees that within thirty (30) days after the Closing
Date (or such later date to which the Administrative Agent expressly
consents), Borrower shall deliver (i) current title reports dated within the
last 30 days for each Owned Real Property (other than property subject to the
Clinton IDB or Ottawa IDB), (ii) ALTA mortgagee title insurance policies or
unconditional signed commitments therefor including all endorsements
reasonably required by Administrative Agent issued by one or more title
companies reasonably satisfactory to Administrative Agent with respect to (y)
each Owned Real Property listed on Schedule 6.12(a)(ii) hereto and (z) each
Owned Real Property the fair market value of which exceeds $2,000,000 to the
extent that Administrative Agent requires such a title insurance policy or
unconditional signed commitment therefor in its reasonable discretion in
amounts not less than the fair market value of such real property or such
other amount reasonably required by Administrative Agent and copies of all
recorded documents listed as exceptions to title or otherwise referred to
therein, all in form and substance reasonably satisfactory to Administrative
Agent; (iii) updates of surveys reasonably acceptable to Administrative Agent,
of all Owned Real Properties listed on Schedule 6.12(a)(iii) hereto, certified
to Administrative Agent by a form of certification reasonably acceptable to
Administrative Agent and dated not more than thirty days prior to the Closing
Date; (iv) Mortgages on the Owned Real Properties listed on Schedule
6.12(a)(iv) hereto to the extent Borrower failed to deliver any of such
Mortgages on the Closing Date, provided, however that Borrower shall only be
required to use commercially reasonable efforts to deliver the Mortgage for
the Owned Real Property located in Butler, Missouri; and (v) with respect to
each Owned Real Property subject to a recorded mortgage lien held by JPMorgan
Chase Bank, releases of such mortgage liens in form and substance reasonably
satisfactory to Administrative Agent executed by JPMorgan Chase Bank and in
recordable form for each state where such Owned Real Properties are located. (b) The Borrower hereby agrees that within sixty (60) days after the
Closing Date (or such later date to which the Administrative Agent expressly
consents), the Borrower shall deliver to the Collateral Agent a landlord lien
waiver in form and substance reasonably satisfactory to Collateral Agent with
respect to the Leased Real Property. SECTION 7. NEGATIVE COVENANTS The Borrower hereby agrees that, so long as the Commitments remain in
effect, any Letter of Credit remains outstanding or any Loan or other amount is
owing to any Lender or the Administrative Agent hereunder, the Borrower shall
not, and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly: 7.1 Financial Condition Covenants. (a) Consolidated Senior Secured Debt Ratio. Permit the Consolidated
Senior Secured Debt Ratio as at the last day of any period of four
consecutive fiscal quarters of the Borrower ending with any fiscal
quarter set forth below to exceed the ratio set forth below opposite such
fiscal quarter: RatioFiscal Quarter
ending on or nearest toSeptember 30, 2004
    
    
    2.75 to 1.00December 31, 2004
    
    
    2.75 to 1.00
 CREDIT AGREEMENT 61




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RatioMarch 31, 2005
    
    
    2.75 to 1.00June 30, 2005
    
    
    2.50 to 1.00September 30, 2005
    
    
    2.50 to 1.00December 31, 2005
    
    
    2.25 to 1.00March 31, 2006
    
    
    2.25 to 1.00June 30, 2006
    
    
    2.25 to 1.00September 30, 2006
    
    
    2.25 to 1.00December 31, 2006
    
    
    2.25 to 1.00March 31, 2007
    
    
    2.25 to 1.00June 30, 2007
    
    
    2.25 to 1.00September 30, 2007 and thereafter
    
    
    2.00 to 1.00
 (b) Minimum Consolidated EBITDA. Permit Consolidated EBITDA as at
the last day of any period of four consecutive fiscal quarters of the
Borrower ending with any fiscal quarter set forth below to be less than
the amount set forth below opposite such fiscal quarter: AmountFiscal Quarter
ending on or nearest toSeptember 30, 2004
    
    
    70,000,000December 31, 2004
    
    
    70,000,000March 31, 2005
    
    
    72,500,000June 30, 2005
    
    
    75,000,000September 30, 2005
    
    
    80,000,000December 31, 2005
    
    
    80,000,000March 31, 2006 and thereafter
    
    
    85,000,000
 7.2 Indebtedness. Create, issue, incur, assume, become liable in respect
of or suffer to exist any Indebtedness, except: (a) Indebtedness of any Loan Party pursuant to any Loan Document; (b) Indebtedness of the Borrower to any Restricted Subsidiary and of any
Restricted Subsidiary to the Borrower or any other Restricted Subsidiary
(provided that any indebtedness incurred by a Foreign Subsidiary owing to the
Borrower or any Domestic Subsidiary be evidenced by a note pledged to the
Collateral Agent); (c) Guarantee Obligations incurred in the ordinary course of business by
the Borrower or any of its Subsidiaries of obligations of any Restricted
Subsidiary; (d) [Reserved] (e) Indebtedness (other than the Senior Unsecured Notes and the Senior
Subordinated Notes) outstanding on the Closing Date and listed on Schedule
7.2(e) and any refinancings, refundings, renewals or extensions thereof
(whether denominated in the existing CREDIT AGREEMENT 62




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currency or otherwise, but without increasing the principal amount, or
shortening the maturity, thereof); (f) Indebtedness under the Senior Unsecured Notes and the Senior
Subordinated Notes (including Guarantees thereof by a Restricted Subsidiary
that is a Guarantor) in an aggregate principal amount not to exceed
$213,000,000 and $150,000,000 for the Senior Unsecured Notes and the Senior
Subordinated Notes, respectively, at any one time outstanding and any
refinancings, renewals or extensions of the Senior Subordinated Notes
(without increasing the principal amount (other than as a result of
capitalization of accrued interest, fees or discounts) or shortening the
maturity date or weighted average life to maturity thereof and on terms (other
than the coupon, which shall be not more than the then current market rates)
not less favorable to the obligors and the Lenders taken as a whole than the
Senior Subordinated Notes); (g) Indebtedness with respect to IDB (other than the Clinton IDB and the
Ottawa IDB) in an aggregate principal amount not to exceed $25,000,000 at any
one time outstanding; and (h) additional Indebtedness of the Borrower or any of its Restricted
Subsidiaries and any Guarantee Obligations of the Borrower in respect thereof
in an aggregate principal amount (for the Borrower and all of its Restricted
Subsidiaries) not to exceed $10,000,000 (or its equivalent in other currencies
as of the date such Indebtedness is incurred, as determined by the Borrower in
good faith based on then prevailing exchange rates) at any one time
outstanding. 7.3 Liens. Create, incur, assume or suffer to exist any Lien upon any of
its property, whether now owned or hereafter acquired, except for: (a) Liens for taxes not yet due or that are being contested in good faith
by appropriate proceedings, provided that adequate reserves with respect
thereto are maintained on the books of the Borrower or its Restricted
Subsidiaries, as the case may be, in conformity with GAAP; (b) carriers, warehousemens, mechanics, materialmens, repairmens or
other like Liens arising in the ordinary course of business that are not
overdue for a period of more than 30 days or that are being contested in good
faith by appropriate proceedings; (c) pledges or deposits in connection with workers compensation,
unemployment insurance and other social security legislation; (d) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in
the ordinary course of business; (e) easements, rights-of-way, restrictions and other similar encumbrances
incurred in the ordinary course of business that, in the aggregate, are not
substantial in amount and that do not in any case materially detract from the
value of the property subject thereto or materially interfere with the
ordinary conduct of the business of the Borrower or any of its Restricted
Subsidiaries; CREDIT AGREEMENT 63




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(f) Liens in existence on the Closing Date listed on Schedule 7.3(f) or
Liens securing refinanced Indebtedness permitted by Section 7.2(e), provided
that (i) no such Lien is spread to cover any additional property after the
Closing Date, (ii) the amount of Indebtedness (including the amount of
Indebtedness committed thereunder) secured thereby is not increased and (iii)
no such Lien shall be permitted in respect of any property encumbered on the
Closing Date pursuant to the Clinton IDB or Ottawa IDB following the repayment
or termination of such IDB; (g) Liens securing Indebtedness permitted by Section 7.2(g); (h) Liens created pursuant to the Security Documents; (i) any interest or title of a lessor under any lease entered into by the
Borrower or any other Restricted Subsidiary in the ordinary course of its
business and covering only the assets so leased; and (j) Liens not otherwise permitted by this Section 7.3 and arising after
the Closing Date so long as neither (i) the aggregate outstanding principal
amount of the obligations secured thereby exceeds $10,000,000 (or its
equivalent in other currencies as of the date such Indebtedness is incurred,
as determined by the Borrower in good faith based on then prevailing exchange
rates) at any time nor (ii) the aggregate fair market value (determined as of
the date such Lien is incurred) of the assets subject thereto exceeds
$20,000,000. 7.4 Fundamental Changes. Enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or Dispose of, all or substantially all of its
property or business, create any new subsidiary, or acquire by purchase or
otherwise all or a substantial part of the business, property or assets of, or
Capital Stock or other evidence of beneficial ownership of, any Person or any
unit of division thereof , except that: (a) Holdings or any Restricted Subsidiary of the Borrower may be merged
or consolidated with or into, or liquidated and dissolved and pay liquidating
dividends to, the Borrower (provided that the Borrower shall be the continuing
or surviving corporation) or with or into any Restricted Subsidiary (provided
that such Restricted Subsidiary shall be the continuing or surviving
corporation); (b) any Restricted Subsidiary of the Borrower may Dispose of any or all
of its assets (upon voluntary liquidation or otherwise) to the Borrower or any
Restricted Subsidiary; (c) the Borrower and any Restricted Subsidiary may acquire
inventory, equipment and other assets in the ordinary course of business; (d) the Borrower and any Restricted Subsidiary may make Permitted
Acquisitions and form or acquire wholly-owned Domestic Subsidiaries in
connection therewith and which are joined as additional Restricted
Subsidiaries, Loan Parties and Guarantors in accordance with the terms
hereof; CREDIT AGREEMENT 64




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(e) the Borrower and any Restricted Subsidiary may create and form
Domestic Subsidiaries which are joined as additional Restricted
Subsidiaries, Loan Parties and Guarantors in accordance with the terms
hereof; and (f) the Borrower and any Restricted Subsidiary may create and form
Unrestricted Subsidiaries. 7.5 Disposition of Property. Dispose of any of its property, whether now
owned or hereafter acquired, or, in the case of any Restricted Subsidiary,
issue or sell any shares of such Subsidiarys Capital Stock to any Person,
except: (a) the Disposition of obsolete or worn out property in the ordinary
course of business; (b) the sale of inventory in the ordinary course of business; (c) Dispositions permitted by Section 7.4(b); (d) Dispositions as set forth on Schedule 7.5; (e) the sale or issuance of any Subsidiarys Capital Stock to the Borrower
or any Restricted Subsidiary; (f) any Disposition of property or series of related Dispositions of
property having a fair market value of less than $250,000 (or its equivalent in
other currencies as of the date of such Disposition or the last of such series
of Dispositions, as determined by the Borrower in good faith based on then
prevailing exchange rates); and (g) Dispositions of other property after the Closing Date; provided that
(i) at least 75% of the consideration received in connection with each such
Disposition shall be in the form of cash and (ii) the aggregate market value of
all such Dispositions shall not exceed $10,000,000 (or its equivalent in other
currencies as of the date of such Disposition, as determined by the Borrower in
good faith based on then prevailing exchange rates). 7.6 Restricted Payments. Declare or pay any dividend (other than
dividends payable solely in common stock of the Person making such dividend)
on, or make any payment on account of, or set apart assets for a sinking or
other analogous fund for, the purchase, redemption, defeasance, retirement or
other acquisition of, any Capital Stock of Holdings, the Borrower or any
Restricted Subsidiary, whether now or hereafter outstanding, or make any
repurchases and redemptions of subordinated debt, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of Holdings, the Borrower or any Restricted
Subsidiary (collectively, Restricted Payments), except that: (a) any Restricted Subsidiary may make Restricted Payments to the Borrower
or any other Restricted Subsidiary; CREDIT AGREEMENT 65




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(b) the Borrower may redeem shares of Preferred Stock with Replacement
Preferred Stock or shares of common stock of the Borrower or Holdings; (c) the Borrower may pay dividends to Holdings to permit Holdings to (i)
pay corporate overhead expenses incurred in the ordinary course of business not
to exceed $1,000,000 in any fiscal year and (ii) pay any taxes that are due and
payable by Holdings and the Borrower as part of a consolidated group; (d) the Borrower may pay dividends in kind of additional shares of
Preferred Stock on Preferred Stock; (e) the Borrower may call, prepay, redeem or repurchase the Senior
Subordinated Notes, pursuant to any refinancing thereof or pursuant to any
asset sale tender offers required by the terms of such Indebtedness and may
repay the Senior Subordinated Notes at any time within one year of the stated
maturity thereof if (i) the aggregate principal amount of all outstanding
Senior Subordinated Notes (prior to any such call, prepayment, redemption, or
repurchase permitted by this Section 7.6(e)) is less than $20,000,000 and (ii)
the Borrowers Consolidated Senior Secured Debt Ratio is less than 2.0 to 1.0;
and (f) so long as no Default or Event of Default has occurred and is
continuing or would result therefrom, the Borrower may repurchase shares of, or
options to purchase shares of Capital Stock of the Borrower or any of its
Subsidiaries from former employees and former directors pursuant to the terms
of agreements or plans approved by the board of directors of Holdings; provided
that the aggregate amount of such repurchases following the Closing Date shall
not exceed $5,000,000. 7.7 Capital Expenditures. Make or commit to make any Capital Expenditure,
except Capital Expenditures of the Borrower and its Restricted Subsidiaries in
the ordinary course of business not exceeding $25,000,000 for fiscal year 2004
and $30,000,000 for each fiscal year thereafter (or its equivalent in other
currencies as of the date of such expenditure, as determined by the Borrower in
good faith based on then prevailing exchange rates), provided that up to fifty
percent (50%) of the amount referred to above that is not so expended in the
fiscal year for which it is permitted may be carried over for expenditure in
the next succeeding fiscal year, it being understood that Capital Expenditures
during such succeeding fiscal year shall be deemed to be made, first, in
respect of amounts permitted for such succeeding fiscal year as set forth
above, and second, in respect of the amount so carried over; provided further
that the applicable amount of permitted Capital Expenditures set forth in this
Section 7.7 for any fiscal year shall be increased by the amount of any
reimbursement in such fiscal year from customers for Capital Expenditures
required to be made by such customers. 7.8 Investments. Make any advance, loan, extension of credit (by way of
guaranty or otherwise) or capital contribution to, or purchase any Capital
Stock, bonds, notes, debentures or other debt securities of, or any assets
constituting a business unit of, or make any other investment in, any Person
(all of the foregoing, Investments), except: (a) extensions of trade credit in the ordinary course of business; CREDIT AGREEMENT 66




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(b) Investments in Cash Equivalents; (c) Guarantee Obligations permitted by Section 7.2; (d) loans and advances to employees of Holdings, the Borrower or any
Subsidiary of the Borrower in the ordinary course of business (including for
travel, entertainment and relocation expenses) in an aggregate amount for
Holdings, the Borrower or any Subsidiary of the Borrower not to exceed
$2,000,000 (or its equivalent in other currencies, as determined by the
Borrower in good faith based on prevailing exchange rates as of the end of the
immediately preceding fiscal quarter) at any one time outstanding; (e) Permitted Acquisitions made pursuant to Section 7.4(d); (f) Investments in assets useful in the business of the Borrower and its
Restricted Subsidiaries made by the Borrower or any of its Restricted
Subsidiaries with the proceeds of any Reinvestment Deferred Amount; (g) Investments by the Borrower or any Subsidiary in the Borrower or any
Restricted Subsidiary (other than Investments by the Borrower or any Domestic
Subsidiary in a Foreign Subsidiary after the occurrence and during the
continuation of an Event of Default); (h) except after the occurrence of and during the continuation of a
Default or an Event of Default, in addition to Investments otherwise expressly
permitted by this Section 7.8, Investments by the Borrower or any of its
Subsidiaries in an aggregate amount (valued at cost) not to exceed $7,500,000
(or its equivalent in other currencies as of the date such Investment is made,
as determined by the Borrower in good faith based on then prevailing exchange
rates) net of cash received during such period as a return on capital or other
return on or repayment of such Investment; (i) Investments received as consideration pursuant to Section 7.5(g); and (j) Investments in Unrestricted Subsidiaries listed in Schedule 4.15 and
in Joint Ventures listed in Schedule 7.8(j), in each case as such Investments
are in existence on the Closing Date. 7.9 Optional Payments and Modifications of Certain Debt Instruments. (a)
Make or offer to make any optional or voluntary payment, prepayment, repurchase
or redemption of or otherwise optionally or voluntarily defease or segregate
funds with respect to the Senior Subordinated Notes or any Senior Unsecured
Notes, except as permitted under Section 7.2(f) or 7.6(e) (as applicable), (b)
amend, modify, waive or otherwise change, or consent or agree to any amendment,
modification, waiver or other change to, any of the terms of the Senior
Subordinated Notes, the Senior Subordinated Note Indenture or the Senior
Unsecured Notes or any indenture related thereto or any agreement relating to
Indebtedness refinancing, renewals or extending any of the foregoing (other
than any such amendment, modification, waiver or other change pursuant to a
refinancing of such Indebtedness permitted by Section 7.2(f) or that (i) would
extend the maturity or reduce the amount of any payment of principal thereof or
reduce the rate or extend any date for payment of interest thereon and (ii)
does not involve the payment of a consent fee), (c) amend, CREDIT AGREEMENT 67




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modify, waive or otherwise change, or consent or agree to any amendment,
modification, waiver or other change to, any of the terms of the Preferred
Stock (other than any such amendment, modification, waiver or other change that
(i) would extend the scheduled redemption date or reduce the amount of any
scheduled redemption payment or reduce the rate or extend any date for payment
of dividends thereon, (ii) does not involve the payment of a consent fee, (iii)
converts such Preferred Stock into common shares of either Holdings or the
Borrower or (iv) is not otherwise adverse to the interests of the Lenders) or
(d) designate any Indebtedness (other than obligations of the Loan Parties
pursuant to the Loan Documents and the Senior Unsecured Notes) as Designated
Senior Indebtedness for the purposes of the Senior Subordinated Note
Indenture. 7.10 Transactions with Affiliates. Except as set forth on Schedule 7.10,
enter into any transaction, including any purchase, sale, lease or exchange of
property, the rendering of any service or the payment of any management,
advisory or similar fees, with any Affiliate (other than Holdings, the Borrower
or any Restricted Subsidiary) unless such transaction is (a) otherwise
permitted under this Agreement, (b) in the ordinary course of business of
Holdings, the Borrower or such Subsidiary, as the case may be, or (c) upon fair
and reasonable terms no less favorable to Holdings, the Borrower or such
Subsidiary, as the case may be, than it would obtain in a comparable arms
length transaction with a Person that is not an Affiliate; provided that,
notwithstanding anything in this Section 7.10 or any other provision of this
Agreement to the contrary, no management or similar fees shall be paid or
payable by Holdings, the Borrower or any Restricted Subsidiary to any Affiliate
(other than Holdings, the Borrower or any Restricted Subsidiary)at any time
from and after Closing Date. 7.11 Sales and Leasebacks. Enter into any arrangement with any Person
providing for the leasing by Holdings, the Borrower or any Restricted
Subsidiary of real or personal property that has been or is to be sold or
transferred by Holdings, the Borrower or such Subsidiary to such Person or to
any other Person to whom funds have been or are to be advanced by such Person
on the security of such property or rental obligations of Holdings, the
Borrower or such Subsidiary. 7.12 Changes in Fiscal Periods. Permit the fiscal year of the Borrower to
end on a day other than a Saturday or other day within one week of December 31. 7.13 Negative Pledge Clauses. Enter into or suffer to exist or become
effective any agreement that prohibits or limits the ability of Holdings (with
respect to the Capital Stock of the Borrower), the Borrower or any of its
Restricted Subsidiaries to create, incur, assume or suffer to exist any Lien
upon any of its property or revenues, whether now owned or hereafter acquired,
to secure its obligations under the Loan Documents to which it is a party other
than (a) this Agreement and the other Loan Documents, (b) the Senior
Subordinated Note Indenture and each indenture in respect of the Senior
Unsecured Notes and any agreement related to Indebtedness refinancing, renewal
or extending of any of the foregoing permitted by Section 7.2(f), (c) IDB (only
on property subject of IDB), (d) operating leases (only on property subject to
an operating lease), (e) any agreements governing any purchase money Liens or
Capital Lease Obligations otherwise permitted hereby (in which case, any
prohibition or limitation shall only be effective against the assets financed
thereby) and (f) any agreements governing any Indebtedness of a Foreign
Subsidiary (in which case, any prohibition or limitation shall only be
effective against the assets of such Foreign Subsidiary and its Subsidiaries). CREDIT AGREEMENT 68




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7.14 Clauses Restricting Restricted Subsidiary Distributions. Enter into
or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary of the Borrower to (a)
make Restricted Payments in respect of any Capital Stock of such Restricted
Subsidiary held by, or pay any Indebtedness owed to, the Borrower or any other
Restricted Subsidiary of the Borrower, (b) make loans or advances to, or other
Investments in, the Borrower or any other Restricted Subsidiary of the Borrower
or (c) transfer any of its assets to the Borrower or any other Restricted
Subsidiary of the Borrower, except for such encumbrances or restrictions
existing under or by reason of (i) any restrictions existing under the Loan
Documents, (ii) any restrictions under agreements in effect as of the Closing
Date or any agreements replacing such agreements, and (iii) any restrictions
with respect to a Restricted Subsidiary imposed pursuant to an agreement that
has been entered into in connection with the Disposition of all or
substantially all of the Capital Stock or assets of such Restricted Subsidiary. 7.15 Lines of Business. Enter into any business, either directly or
through any Subsidiary, except for those businesses in which the Borrower and
its Restricted Subsidiaries are engaged on the Closing Date or that are
reasonably related thereto. 7.16 Issuances of Preferred Stock. Issue any shares of any preferred
stock other than the Replacement Preferred Stock. SECTION 8. EVENTS OF DEFAULT If any of the following events shall occur and be continuing: (a) the Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof; or the
Borrower shall fail to pay any interest on any Loan or Reimbursement
Obligation, or any other amount payable hereunder or under any other Loan
Document, within three days after any such interest or other amount becomes
due in accordance with the terms hereof; or (b) any representation or warranty made or deemed made by any Loan Party
herein or in any other Loan Document or that is contained in any certificate,
document or financial or other statement furnished by it at any time under or
in connection with this Agreement or any such other Loan Document shall prove
to have been inaccurate in any material respect on or as of the date made or
deemed made; or (c) (i) any Loan Party shall default in the observance or performance of
any agreement contained in the last sentence of Section 6.1, clause (i) or
(ii) of Section 6.4(a) (with respect to Holdings and the Borrower only),
Section 6.7(a) or Section 7 of this Agreement or Sections 5.5 and 5.7(b) of
the Guarantee and Collateral Agreement or (ii) an Event of Default under and
as defined in any Mortgage shall have occurred and be continuing; or (d) any Loan Party shall default in the observance or performance of any
other agreement contained in this Agreement or any other Loan Document (other
than as provided in paragraphs (a) through (c) of this Section 8), and such
default shall continue unremedied for a period of 30 days; or CREDIT AGREEMENT 69




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(e) Holdings, the Borrower or any of its Restricted Subsidiaries shall
(i) default in making any payment of any principal of any Indebtedness
(including any Guarantee Obligation, but excluding the Loans) on the scheduled
or original due date with respect thereto; or (ii) default in making any
payment of any interest on any such Indebtedness beyond the period of grace,
if any, provided in the instrument or agreement under which such Indebtedness
was created; or (iii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or beneficiary)
to cause, with the giving of notice if required, such Indebtedness to become
due prior to its stated maturity or (in the case of any such Indebtedness
constituting a Guarantee Obligation) to become payable; provided that a
default, event or condition described in clause (i), (ii) or (iii) of this
paragraph (e) shall not at any time constitute an Event of Default unless, at
such time, one or more defaults, events or conditions of the type described in
clauses (i), (ii) and (iii) of this paragraph (e) shall have occurred and be
continuing with respect to Indebtedness the outstanding principal amount of
which exceeds in the aggregate $10,000,000 (or its equivalent in other
currencies, as determined by the Administrative Agent in good faith as of the
date of the relevant default); or (f) (i) Holdings, the Borrower or any of its Restricted Subsidiaries
shall commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or
its debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any substantial
part of its assets, or Holdings, the Borrower or any of its Restricted
Subsidiaries shall make a general assignment for the benefit of its creditors;
or (ii) there shall be commenced against Holdings, the Borrower or any of its
Restricted Subsidiaries any case, proceeding or other action of a nature
referred to in clause (i) above that (A) results in the entry of an order for
relief or any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall be
commenced against Holdings, the Borrower or any of its Restricted Subsidiaries
any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets that results in the entry of an order for any
such relief that shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) Holdings, the
Borrower or any of its Restricted Subsidiaries shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence in,
any of the acts set forth in clause (i), (ii), or (iii) above; or (v)
Holdings, the Borrower or any of its Restricted Subsidiaries shall generally
not, or shall be unable to, or shall admit in writing its inability to, pay
its debts as they become due; or CREDIT AGREEMENT 70




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(g) (i) any Person shall engage in any prohibited transaction (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any accumulated funding deficiency (as defined in Section 302 of
ERISA), whether or not waived, shall exist with respect to any Plan or any
Lien in favor of the PBGC or a Plan shall arise on the assets of the Borrower
or any Commonly Controlled Entity, (iii) a Reportable Event shall occur with
respect to, or proceedings shall commence to have a trustee appointed, or a
trustee shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or appointment of
a trustee is, in the reasonable opinion of the Required Lenders, likely to
result in the termination of such Plan for purposes of Title IV of ERISA, (iv)
any Single Employer Plan shall terminate for purposes of Title IV of ERISA,
(v) the Borrower or any Commonly Controlled Entity shall, or in the reasonable
opinion of the Required Lenders is likely to, incur any liability in
connection with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or exist
with respect to a Plan; and in each case in clauses (i) through (vi) above,
such event or condition, together with all other such events or conditions, if
any, could, in the sole judgment of the Required Lenders, reasonably be
expected to have a Material Adverse Effect; or (h) one or more judgments or decrees shall be entered against Holdings,
the Borrower or any of its Restricted Subsidiaries involving in the aggregate
a liability (not paid or fully covered by insurance as to which the relevant
insurance company has acknowledged coverage) of $10,000,000 (or its equivalent
in other currencies, as determined by the Administrative Agent in good faith
as of the date of the relevant default) or more, and all such judgments or
decrees shall not have been vacated, discharged, stayed or bonded pending
appeal within 30 days from the entry thereof; or (i) any of the Security Documents shall cease, for any reason, to be in
full force and effect, or any Loan Party or any Affiliate of any Loan Party
shall so assert, or any Lien created by any of the Security Documents shall
cease to be enforceable and of the same effect and priority purported to be
created thereby; or (j) the guarantee contained in Section 2 of the Guarantee and Collateral
Agreement shall cease, for any reason, to be in full force and effect or any
Loan Party or any Affiliate of any Loan Party shall so assert; or (k) a Change of Control shall occur; or (l) the Senior Subordinated Notes or any guarantees thereof shall cease,
for any reason, to be validly subordinated to the Obligations or the
obligations of the Restricted Subsidiaries under the Guarantee and Collateral
Agreement, as the case may be, as provided in the indenture therefor, or any
Loan Party, any Affiliate of any Loan Party, the trustee in respect of the
Senior Subordinated Notes or the holders of at least 25% in aggregate
principal amount of the Senior Subordinated Notes shall so assert;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under
this Agreement and the other Loan Documents (including all amounts of L/C CREDIT AGREEMENT 71




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Obligations, whether or not the beneficiaries of the then outstanding Letters
of Credit shall have presented the documents required thereunder) shall
immediately become due and payable, and (B) if such event is any other Event of
Default, with the consent of the Required Lenders, the Administrative Agent
may, or upon the request of the Required Lenders, the Administrative Agent
shall, by notice to the Borrower, declare the Commitments terminated and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement and the other Loan Documents (including all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters
of Credit shall have presented the documents required thereunder) to be due and
payable forthwith, whereupon the Commitments shall immediately terminate and
all Loans and other amounts arising hereunder shall immediately become due and
payable. With respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration
pursuant to this paragraph, the Borrower shall at such time deposit in a cash
collateral account opened by the Administrative Agent an amount equal to the
aggregate then undrawn and unexpired amount of such Letters of Credit. Amounts
held in such cash collateral account shall be applied by the Administrative
Agent to the payment of drafts drawn under such Letters of Credit, and the
unused portion thereof after all such Letters of Credit shall have expired or
been fully drawn upon, if any, shall be applied to repay other obligations of
the Borrower hereunder and under the other Loan Documents. After all such
Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations
of the Borrower hereunder and under the other Loan Documents shall have been
paid in full, the balance, if any, in such cash collateral account shall be
returned to the Borrower (or such other Person as may be lawfully entitled
thereto). Except as expressly provided above in this Section 8, presentment,
demand, protest and all other notices of any kind are hereby expressly waived
by the Borrower. SECTION 9. THE AGENTS 9.1 Appointment and Authority. Each of the Lenders and the Issuing Bank
hereby irrevocably appoints CSFB to act on its behalf as the Administrative
Agent and Collateral Agent hereunder and under the other Loan Documents and
authorizes CSFB, in such capacities, to take such actions on its behalf and to
exercise such powers as are delegated to CSFB, in such capacities, by the terms
hereof or thereof, together with such actions and powers as are reasonably
incidental thereto. The provisions of this Article are solely for the benefit
of the Administrative Agent and the Collateral Agent, the Lenders and the
Issuing Bank, and neither the Borrower nor any other Loan Party shall have
rights as a third party beneficiary of any of such provisions. 9.2 Rights as a Lender. The Persons serving as an Agents hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not an Agent and the term Lender
or Lenders shall, unless otherwise expressly indicated or unless the context
otherwise requires, include the Person serving as an Agent hereunder in its
individual capacity. Such Persons and their Affiliates may accept deposits
from, lend money to, act as the financial advisor or in any other advisory
capacity for and generally engage in any kind of business with the Borrower or
any Subsidiary or other Affiliate thereof as if such Persons were not Agents
hereunder and without any duty to account therefor to the Lenders. CREDIT AGREEMENT 72




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9.3 Exculpatory Provisions. The Agents shall not have any duties or
obligations except those expressly set forth herein and in the other Loan
Documents. Without limiting the generality of the foregoing, the Agents: (a)
shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing; (b) shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby or by the other
Loan Documents that the Agents are required to exercise as directed in writing
by the Required Lenders (or such other number or percentage of the Lenders as
shall be expressly provided for herein or in the other Loan Documents),
provided that the Agents shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or applicable law; and (c)
shall not, except as expressly set forth herein and in the other Loan
Documents, have any duty to disclose, and shall not be liable for the failure
to disclose, any information relating to the Borrower or any of its Affiliates
that is communicated to or obtained by the Persons serving as the Agents or any
of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Administrative Agent
shall believe in good faith shall be necessary, under the circumstances as
provided in Sections 10.1) or (ii) in the absence of its own gross negligence
or willful misconduct. The Administrative Agent shall not be deemed to have
knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by the Borrower, a Lender or the Issuing
Bank. The Agents 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 this Agreement or any other Loan Document, (ii) the contents of
any certificate, report or other document delivered hereunder or thereunder or
in connection herewith or therewith, (iii) the performance or observance of any
of the covenants, agreements or other terms or conditions set forth herein or
therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any
other agreement, instrument or document or (v) the satisfaction of any
condition set forth in Section 5 or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Agents 9.4 Reliance by the Agent. Each Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing
(including any electronic message, Internet or intranet website posting or
other distribution) believed by it to be genuine and to have been signed, sent
or otherwise authenticated by the proper Person. Each Agent also may rely upon
any statement made to it orally or by telephone and believed by it to have been
made by the proper Person, and shall not incur any liability for relying
thereon. In determining compliance with any condition hereunder to the making
of a Loan, or the issuance of a Letter of Credit, that by its terms must be
fulfilled to the satisfaction of a Lender or the Issuing Bank, each Agent may
presume that such condition is satisfactory to such Lender or the Issuing Bank
unless such Agent shall have received notice to the contrary from such Lender
or the Issuing Bank prior to the making of such Loan or the issuance of such
Letter of Credit. Each Agent may consult with legal counsel (who may be counsel
for the Borrower), CREDIT AGREEMENT 73




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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. 9.5 Delegation of Duties. Each Agent may perform any and all of its
duties and exercise its rights and powers hereunder or under any other Loan
Document by or through any one or more sub-agents appointed by such Agent. Each
Agent and any such sub-agent may perform any and all of its duties and exercise
its rights and powers by or through their respective Related Parties. The
exculpatory provisions of this Section 9 shall apply to any such sub-agent and
to the Related Parties of each Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Agent. 9.6 Resignation of Administrative Agent. The Administrative Agent and/or
the Collateral Agent may at any time give notice of its resignation to the
Lenders, the Issuing Bank and the Borrower. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with
the Borrower, to appoint a successor Administrative Agent and/or Collateral
Agent, as applicable which shall be a bank with an office in New York City, or
an Affiliate of any such bank with an office in New York City. If no such
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 the case may be, gives notice of its
resignation, then the retiring Administrative Agent and/or Collateral Agent, as
the case may be, may on behalf of the Lenders and the Issuing Bank, appoint a
successor Administrative Agent and/or Collateral Agent, as applicable, meeting
the qualifications set forth above provided that if the Administrative Agent
and/or Collateral Agent, as applicable, shall notify the Borrower and the
Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice
and (1) the retiring Administrative Agent and/or Collateral Agent, as the case
may be, shall be discharged from its duties and obligations hereunder and under
the Loan Documents (except that in the case of any collateral security held by
the Administrative Agent and/or Collateral Agent, as the case may be, on behalf
of the Lenders or the Issuing Bank under any of the Loan Documents, the
retiring Administrative Agent and/or Collateral Agent, as the case may be,
shall continue to hold such collateral security until such time as a successor
Administrative Agent and/or Collateral Agent, as applicable, is appointed) and
(2) all payments, communications and determinations provided to be made by, to
or through the Administrative Agent and/or Collateral Agent, as applicable,
shall instead be made by or to each Lender and the Issuing Bank directly, until
such time as the Required Lenders appoint a successor Administrative Agent
and/or Collateral Agent, as applicable, as provided for above in this
paragraph. Upon the acceptance of a successors appointment as Administrative
Agent and/or Collateral Agent, as applicable, hereunder, such successor shall
succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent and/or Collateral Agent, as the case may be, shall be
discharged from all of its duties and obligations hereunder or under the other
Loan Documents (if not already discharged therefrom as provided above in this
paragraph). The fees payable by the 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 the Borrower and
such successor. After the retiring Administrative Agents and/or Collateral
Agents resignation hereunder and under the other Loan Documents, the
provisions of this Article and Section 10.5 shall continue in effect for CREDIT AGREEMENT 74




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the benefit of such retiring Administrative Agent and/or Collateral Agent,
as the case may be, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while the
retiring Administrative Agent was acting as Administrative Agent and/or
Collateral Agent, as applicable. 9.7 Non-Reliance on Agents and Other Lenders. Each Lender and the Issuing
Bank acknowledges that it has, independently and without reliance upon any
Agent or any other Lender or any of their Related Parties 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 and the Issuing
Bank also acknowledges that it will, independently and without reliance upon
any Agent or any other Lender or any of their Related Parties 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 any related agreement or
any document furnished hereunder or thereunder. 9.8 No Other Duties, etc. Anything herein to the contrary
notwithstanding, none of the Sole Bookrunner or Sole Lead Arranger listed on
the cover page hereof shall have any powers, duties or responsibilities under
this Agreement or any of the other Loan Documents, except in its capacity, as
applicable, as the Administrative Agent, a Lender or the Issuing Bank
hereunder. 9.9 Authorization to Release Guarantees and Liens. Notwithstanding
anything to the contrary contained herein or in any other Loan Document, the
Collateral Agent is hereby irrevocably authorized by each of the Lenders
(without requirement of notice to or consent of any Lender except as expressly
required by Section 10.1) to take any action requested by the Borrower having
the effect of releasing any Collateral or Guarantee Obligations to the extent
necessary to permit consummation of any transaction not prohibited by any Loan
Document or to the extent reasonably related to the redesignation of a
Restricted Subsidiary as an Unrestricted Subsidiary in accordance with the
provisions hereof or that has been consented to in accordance with Section
10.1. SECTION 10. MISCELLANEOUS 10.1 Amendments and Waivers. (a) Neither this Agreement, any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 10.1. The
Required Lenders and each Loan Party party to the relevant Loan Document may,
or, with the written consent of the Required Lenders, the Administrative Agent
and each Loan Party to the relevant Loan Document may, from time to time, (a)
enter into written amendments, supplements or modifications hereto and to the
other Loan Documents for the purpose of adding any provisions to this Agreement
or the other Loan Documents or changing in any manner the rights of the Lenders
or of the Loan Parties hereunder or thereunder or (b) waive, on such terms and
conditions as the Required Lenders or the Administrative Agent, as the case may
be, may specify in such instrument, any of the requirements of this Agreement
or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) forgive or reduce the principal amount or
extend the final scheduled date of maturity of any Loan, modify or have the
effect of modifying the definition of Term Maturity Date CREDIT AGREEMENT 75




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or Revolving Loan Maturity Date, extend the scheduled date or principal
amount of any amortization payment in respect of any Term Loan, reduce the
stated rate of any interest or fee payable hereunder or extend the scheduled
date of any payment thereof, or increase the amount or extend the expiration
date of any Lenders Revolving Commitment, in each case without the written
consent of each Lender directly affected thereby; (ii) amend, modify or waive
any provision of this Section 10.1 or forgive or reduce any percentage
specified in the definition of Required Lenders or Applicable Percentage or
permit an Interest Period as to any Eurodollar Loan in excess of six months
unless available to all Lenders, consent to the assignment or transfer by any
Loan Party of any of its rights and obligations under this Agreement and the
other Loan Documents, release all or substantially all of the Collateral or
release Holdings or all or substantially all of the other Guarantors from its
or their obligations under the Guarantee and Collateral Agreement (except as
set forth in Section 8.16 in the Guarantee and Collateral Agreement), in each
case without the written consent of all Lenders; (iii) amend, modify or waive
any condition precedent to any extension of credit under the Revolving Facility
set forth in Section 5.2 (including in connection with any waiver of an
existing Default or Event of Default) without the written consent of the
Majority Revolving Facility Lenders; (iv) amend, modify or waive any provision
of Section 2.18 or alter the required application of any repayments or
prepayments as between Facilities pursuant to Section 2.12(e), in each case,
without the consent of Majority Facility Lenders in respect of each Facility
which is being allocated a lesser repayment or prepayment as a result thereof
(provided that Required Lenders may waive, in whole or in part, any mandatory
prepayment under Section 2.12); (v) reduce the percentage specified in the
definition of Majority Facility Lenders with respect to any Facility without
the written consent of all Lenders under such Facility; (vi) amend, modify or
waive any provision of Section 9 without the written consent of the
Administrative Agent; (vii) amend, modify or waive any provision of Section 2.6
or 2.7 without the written consent of the Swingline Lender; (viii) amend,
modify or waive any provision of Section 3 without the written consent of the
Issuing Banks or (ix) amend, modify or waive any provisions in the Loan
Documents to add additional facilities (with tenors not shorter than and on
terms no less favorable than the Facilities) entitled to share ratably in the
Collateral and in prepayments without the written consent of the Required
Lenders. Any such waiver and any such amendment, supplement or modification
shall apply equally to each of the Lenders and shall be binding upon the Loan
Parties, the Lenders, the Administrative Agent and all future holders of the
Loans. In the case of any waiver, the Loan Parties, the Lenders and the
Administrative Agent shall be restored to their former position and rights
hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon. (b) Each Lender grants (x) to the Administrative Agent the right to
purchase all (but not less than all) of such Lenders Commitments and Loans
owing to it and the Notes held by it and all of its rights and obligations
hereunder and under the other Loan Documents, and (y) to the Borrower the right
to cause an assignment of all (but not less than all) of such Lenders
Commitments and Loans owing to it, its participations in the Notes held by it
and all of its rights and obligations hereunder and under the other Loan
Documents to Eligible Assignees, which right may be exercised by the
Administrative Agent or the Borrower, as the case may be, if such Lender (a
Non Consenting Lender) refuses to execute any amendment, waiver or consent
which requires the written consent of Lenders other than Required Lenders and
to which Required Lenders, the Administrative Agent and the Borrower have
otherwise agreed; provided that such Non Consenting CREDIT AGREEMENT 76




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Lender shall receive, in connection with such assignments, payment equal
to the aggregate amount of outstanding Loans owed to such Lender (together with
all accrued and unpaid interest, fees and other amounts (other than
indemnities) owed to such Lender). Each Lender agrees that if the
Administrative Agent or the Borrower, as the case may be, exercises their
option hereunder, it shall promptly execute and deliver all agreements and
documentation necessary to effectuate such assignment as set forth in
subsection 10.6(a). Such Lender shall nonetheless continue to benefit from all
indemnification obligations which are specified herein to survive the
termination of this Agreement. The Borrower shall be entitled (but not
obligated) to execute and deliver such agreement and documentation on behalf of
such Non Consenting Lender and any such agreement and/or documentation so
executed by the Borrower shall be effective for purposes of documenting an
assignment pursuant to subsection 10.6. 10.2 Notices. (a) In the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in
paragraph (b) below), all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopier as
follows: Holdings:
    
    Doane Pet Care Enterprises, Inc.600 Travis, Suite 6110Houston, TX 77002Attention: George B. KellyTelecopy: (713) 332-2700Telephone: (713) 332-2702The Borrower:
    
    Doane Pet Care Company210 Westwood Place South, Suite 400Brentwood, TN 37027Attention: Chief Financial OfficerTelecopy: (615) 309-1191Telephone: (615) 373-7774with a copy to:
    
    Vinson & Elkins LLP2300 First City Tower1001 FanninHouston, TX 77002Attention: Robert R. RabalaisTelecopy: (713) 615-5929Telephone: (713) 758-4526
 CREDIT AGREEMENT 77




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The Administrative Agent,
the Collateral Agent and
CSFB in its capacity as
Issuing Bank:
    
    Credit Suisse First Boston, actingthrough its Cayman Islands BranchEleven Madison AvenueNew York, New York 10010Attention of Agency GroupTelecopy: 212-325-8304Telephone: 212-325-9936Lender or any other Issuing Bank:
    
    to it at its address (or telecopiernumber) set forth in its AdministrativeQuestionnaire.
 Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in paragraph (b) below, shall be effective as provided in said
paragraph (b). (b) Electronic Communications. Notices and other communications to the
Lenders and the Issuing Bank hereunder may be delivered or furnished by
electronic communication (including e-mail and Internet or intranet websites)
pursuant to procedures approved by the Administrative Agent, provided that the
foregoing shall not apply to notices to any Lender or the Issuing Bank pursuant
to subsection 2.1 if such Lender or the Issuing Bank, as applicable, has
notified the Administrative Agent that it is incapable of receiving notices
under such Article by electronic communication. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be
limited to particular notices or communications. Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon
the senders receipt of an acknowledgement from the intended recipient (such as
by the return receipt requested function, as available, return e-mail or
other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient,
such notice or communication shall be deemed to have been sent at the opening
of business on the next business day for the recipient, and (ii) notices or
communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification that such
notice or communication is available and identifying the website address
therefor. CREDIT AGREEMENT 78




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(c) Change of Address, Etc. Any party hereto may change its address or
telecopier number for notices and other communications hereunder by notice to
the other parties hereto. 10.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay
in exercising, on the part of any Agent or any Lender, any right, remedy, power
or privilege hereunder or under the other Loan Documents shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law. 10.4 Survival of Representations and Warranties. All representations and
warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of
the Loans and other extensions of credit hereunder. 10.5 Expenses, Indemnity; Damage Waiver. (a) Costs and Expenses. The
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and/or the Collateral Agent and their Affiliates
(including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent and the Collateral Agent) in connection with the
syndication of the credit facilities provided for herein, the preparation,
negotiation, execution, delivery and administration of this Agreement and the
other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket
expenses incurred by the Issuing Bank in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder and (iii) all out-of-pocket expenses incurred by the
Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank
(including the fees, charges and disbursements of any counsel for the
Administrative Agent, any Lender or the Issuing Bank), in connection with the
enforcement or protection of its rights (A) in connection with this Agreement
and the other Loan Documents, including its rights under this Section, or (B)
in connection with the Loans made or Letters of Credit issued hereunder,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit. (b) Indemnification by the Borrower. The Borrower shall indemnify each
Agent (and any sub-agent thereof), each Lender and the Issuing Bank, and each
Related Party of any of the foregoing Persons (each such Person being called an
Indemnitee) against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses (including the fees,
charges and disbursements of any counsel for any Indemnitee), incurred by any
Indemnitee or asserted against any Indemnitee by any third party or by the
Borrower or any other Loan Party arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or
thereby, (ii) any Loan or Letter of Credit or the use or proposed use of the
proceeds therefrom (including any refusal by the Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents CREDIT AGREEMENT 79




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presented in connection with such demand do not strictly comply with the
terms of such Letter of Credit), (iii) any actual or alleged presence or
Release of Hazardous Materials on or from any property owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Liability related in
any way to the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by the Borrower, and regardless of whether any
Indemnitee is a party thereto, provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses (x) 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 or (y) result from a
claim brought by the Borrower or any other Loan Party against an Indemnitee for
breach in bad faith of such Indemnitees obligations hereunder or under any
other Loan Document, if the Borrower or such Loan Party has obtained a final
and nonappealable judgment in its favor on such claim as determined by a court
of competent jurisdiction. (c) Reimbursement by Lenders. To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under paragraph (a) or (b)
of this Section to be paid by it to any Agent (or any sub-agent thereof), the
Issuing Bank or any Related Party of any of the foregoing, each Lender
severally agrees to pay to such Agent (or any such sub-agent), the Issuing Bank
or such Related Party, as the case may be, such Lenders Applicable Percentage
(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 Agent (or
any such sub-agent) or the Issuing Bank in its capacity as such, or against any
Related Party of any of the foregoing acting for the Administrative Agent (or
any such sub-agent) or Issuing Bank in connection with such capacity. The
obligations of the Lenders under this paragraph (c) are subject to the
provisions of Section 2.13. (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted
by applicable law, neither the Borrower nor Holdings shall assert, and each
hereby waives, any claim against any Indemnitee, on any theory of liability,
for special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of, this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or Letter of
Credit or the use of the proceeds thereof. No Indemnitee referred to in
paragraph (b) above shall be liable for any damages arising from the use by
unintended recipients of any information or other materials distributed by it
through telecommunications, electronic or other information transmission
systems in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby. (e) Payments. All amounts due under this Section shall be payable promptly
after demand therefor. 10.6 Successors and Assigns; Participations and Assignments.
(a) The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that neither CREDIT AGREEMENT 80




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the Borrower nor any other Loan Party may assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent
of the Administrative Agent and each Lender (and any attempted assignment or
transfer by the Borrower or such other Loan Party without such consent shall
be null and void) and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an Eligible Assignee in
accordance with the provisions of paragraph (b) of this Section, (ii) by way
of participation in accordance with the provisions of paragraph (d) of this
Section or (iii) by way of pledge or assignment of a security interest subject
to the restrictions of paragraph (f) of this Section. 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, Participants to the extent provided in paragraph (d) of this
Section and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement. (b) Assignments by Lenders. Any Lender may at any time assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans at
the time owing to it); provided that (i) except in the case of an assignment of the entire remaining amount of
the assigning Lenders Commitment and the Loans at the time owing to it or in
the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund with respect to a Lender, the aggregate amount of the Commitment
(which for this purpose includes Loans outstanding thereunder) or, if the
applicable Commitment is not then in effect, the principal outstanding balance
of the Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent shall not be less than
$1,000,000, in the case of any assignment in respect of a revolving facility,
or $1,000,000, in the case of any assignment in respect of a term facility,
unless each of the Administrative Agent and, so long as no Event of Default
has occurred and is continuing, and except in the case of a Related Lender
Assignment, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed); provided that such amounts shall be
aggregated in respect of a Lender and its Affiliates or Approved Funds, if
any; (ii) each partial assignment shall be made as an assignment (including
without limitation a Related Lender Assignment) of a proportionate part of all
the assigning Lenders rights and obligations under this Agreement with
respect to the Loan or the Commitment assigned; (iii) any assignment of a Revolving Commitment (including without
limitation a Related Lender Assignment) must be approved by the Administrative
Agent and the Issuing Bank and (iv) except as provided below with respect to Related Lender Assignments,
the parties to each assignment shall execute and deliver to the Administrative
Agent (x) an Assignment and Assumption (A) via an electronic settlement system
acceptable to the Administrative Agent (which initially shall be Clear Par,
LLC) or (B) manually, together with a processing and recordation fee of $3,500
(with only one such fee payable in connection with CREDIT AGREEMENT 81




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simultaneous assignments to or by two or more Approved Funds) and (y)
such forms, certificates or other evidence, if any, with respect to United
States federal income tax withholdings matters as the assignee under such
Assignment and Assumption may be required to deliver pursuant to Section
2.20(e), and the Eligible Assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire. Notwithstanding anything contained in this Section 10.6 to the contrary, a
Lender may effect a Related Lender Assignment without delivering an Assignment
and Assumption to the Administrative Agent and without payment of the
processing and recordation fee (provided that, subject to Section 10.6(b)(iv),
such fee shall be payable if a Related Lender Assignment is disclosed by
delivery of a manually executed Assignment and Assumption to the Administrative
Agent) and without delivering an Administrative Questionnaire (provided that
should an assignee party to a Related Lender Assignment that is not a Lender
deliver an Assignment and Assumption for recording, such assignee shall also
deliver an Administrative Questionnaire and applicable tax forms); provided
that the Borrower, the Agents and the other Lenders shall continue to deal
solely and directly with such assigning Lender until such Assignment and
Assumption has been delivered to the Administrative Agent and promptly recorded
in the Register in accordance with Section 10.6(c). The failure of such
assigning Lender to deliver to the Administrative Agent an Assignment and
Assumption with respect to such Related Lender Assignment shall not affect the
legality, validity or binding effect of such assignment, which shall be
effective upon the date specified therein. Subject to the provisions set forth
in the following sentence, the Borrower agrees that each assignee party to a
Related Lender Assignment shall be entitled to the benefits of Sections 2.19,
2.20 and 2.21 to the same extent as if it had consummated such assignment by
delivery of an Assignment and Assumption pursuant to paragraph (b)(iv) of this
Section. To the extent permitted by law, each assignee party to a Related
Lender Assignment also shall be entitled to the benefits of Section 10.7,
provided that as a Lender such assignee shall be subject to Section 10.8. An
assignee party to a Related Lender Assignment shall not be entitled to receive
any greater payment under Section 2.19 or 2.20 than the applicable assignor
Lender would have been entitled to receive with respect to the Loans assigned
in such Related Lender Assignment until an Assignment and Assumption has been
delivered to the Administrative Agent and recorded in the Register in
accordance with Section 10.6(c). Any assignee party to a Related Lender
Assignment shall not be entitled to the benefits of Section 2.20(a) unless such
assignee complies with Section 2.20(e). Except in the case of Related Lender Assignments, subject to acceptance
and recording thereof by the Administrative Agent pursuant to paragraph (c) of
this Section, from and after the effective date specified in each Assignment
and Assumption, the Eligible Assignee thereunder shall be a party to this
Agreement and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lenders rights and obligations under this Agreement, such
Lender shall cease to be a party hereto) but shall continue to be entitled to
the benefits of Sections 2.19, 2.20, 2.21 and 10.5 with respect to facts and
circumstances occurring prior to the effective date of such assignment. Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 10.6 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations CREDIT AGREEMENT 82




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in accordance with paragraph (d) of this Section. In the case of Related
Lender Assignments (and notwithstanding the immediately preceding sentence),
the failure of the assigning Lender to deliver an Assignment and Assumption
with respect to any such Related Lender Assignment to the Administrative Agent
shall not affect the legality, validity or binding effect of such assignment,
which shall be effective upon the date specified therein; provided that the
Borrower, the Agents and the other Lenders shall continue to deal solely and
directly with such assigning Lender until an Assignment and Assumption has been
delivered to the Administrative Agent and recorded in the Register in
accordance with Section 10.6(c) below. (c) Register. The Administrative Agent, acting solely for this purpose as
an agent of the Borrower, shall maintain at one of its offices in New York
City a copy of each Assignment and Assumption delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans and L/C Obligations (a
Registered Loan) owing to, each Lender pursuant to the terms hereof from
time to time (the Register); provided, however, that in the case of any
Related Lender Assignment, and which assignment is not delivered to the
Administrative Agent and not recorded in the Register, the assigning Lender,
acting for this purpose as an agent of the Borrower shall maintain a
comparable register. Upon written request of the Administrative Agent, the
assigning Lender party to a Related Lender Assignment shall provided a written
report setting forth the name of each assignee entered an such Lenders
register as of the date of written report and the amount of the obligations
than held by each such assignee. The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from
time to time upon reasonable prior notice. Upon its receipt of a duly
completed Assignment and Assumption executed by an assigning Lender and an
assignee, the assignees completed Administrative Questionnaire and any forms
required under Section 2.20(e) (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section (to the extent required) and any written consent to such
assignment required by paragraph (b) of this Section (in each case to the
extent required), the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has
been recorded in the Register as provided in this paragraph (except to the
extent provided herein with respect to Related Lender Assignments). (d) Participations. Any Lender may at any time, without the consent of,
or notice to, the Borrower or the Administrative Agent, sell participations to
any Person (other than a natural person or the Borrower or any of the
Borrowers Affiliates or Subsidiaries) (each, a Participant) in all or a
portion of such Lenders rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans owing to it);
provided that (i) such Lenders obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the Borrower,
the Administrative Agent and the Lenders and Issuing Bank shall continue to
deal solely and directly with such Lender in connection with such Lenders
rights and obligations under this Agreement. CREDIT AGREEMENT 83




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Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument
may provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver with respect to any action (i)
effecting the extension of the final maturity of the Loan allocated to such
participation, (ii) effecting a reduction of the principal amount of or the
rate of interest payable on any Loan or any fee allocated to such
participation or increasing the amount of the Participants participation over
the amount then in effect (it being understood that a waiver of any Default or
Event of Default or of a mandatory reduction in the Commitment shall not
constitute a change in the terms of such participation, and that an increase
in any Commitment or Loan shall be permitted without the consent of any
Participant if such Participants participation is not increased as a result
thereof), (iii) releasing all or substantially all of the Collateral, or (iv)
releasing all or substantially all of the Guarantors from their obligations
under the Guaranties. Subject to paragraph (e) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of Sections
2.19 to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Section 10.7 as though it were a Lender, provided such Participant agrees to
be subject to Section 10.8 as though it were a Lender. In the event that any Lender sells participations in a Registered Loan,
such Lender shall maintain a register on which it enters the name of all
participants in the Registered Loans held by it (the Participant Register).
A Registered Loan (and the registered note, if any, evidencing the same) may be
participated in whole or in part only by registration of such participation on
the Participant Register (and each registered note shall expressly so provide).
Any participation of such Registered Loan (and the registered note, if any,
evidencing the same) may be effected only by the registration of such
participation on the Participant Register. (e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Sections 2.18 and 2.19 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation
to such Participant is made with the Borrowers prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 2.20 unless the Borrower is notified of
the participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with Section 2.20(e) as though it were
a Lender. (f) Certain Pledges. Without the consent of or notice to any Agent or any
Loan Party, 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, without limitation, any pledge or assignment to secure
obligations to a Federal Reserve Bank and this Section shall not apply to any
pledge or assignment of a security interst; provided that no such pledge or
assignment of a security interest shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto. CREDIT AGREEMENT 84




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(g) Notwithstanding anything to the contrary contained herein, any Lender
(a Granting Bank) may grant to a special purpose funding vehicle (a SPC),
identified as such in writing from time to time by the Granting Bank to
Administrative Agent and Borrower, the option to provide to Borrower all or
any part of the Borrowing that such Granting Bank would otherwise be obligated
to make to Borrower pursuant to this Agreement; provided, however, that (i)
nothing herein shall constitute a commitment by any SPC to make the Borrowing,
(ii) if a SPC elects not to exercise such option or otherwise fails to provide
all or any part of such Borrowing, the Granting Bank shall be obligated to
make the borrowing pursuant to the terms hereof. The making of a borrowing by
a SPC hereunder shall utilize the Commitment of the Granting Bank to the same
extent, and as if, the borrowing were made by such Granting Bank. Each party
hereto hereby agrees that no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement (all liability for which shall remain
with the Granting Bank). In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior
indebtedness of any SPC, it will not institute against, or join any other
person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the
United States or any State thereof. In addition, notwithstanding anything to
the contrary contained in this Section 10.6(g), any SPC may (i) with notice
to, but without the prior written consent of, Borrower and the Administrative
Agent and without paying any processing fee therefor, assign all or a portion
of its interests in any borrowings to the Granting Bank or to any financial
institutions (consented to by Borrower and the Administrative Agent) providing
liquidity and/or credit support to or for the account of such SPC to support
the funding or maintenance of its Loans and (ii) disclose on a confidential
basis any non-public information relating to its Loan to any rating agency,
commercial paper dealer or provider of any surety, guarantee or credit or
liquidity enhancement to such SPC. This Section may not be amended without
the written consent of the SPC. 10.7 Right of Set-off. If an Event of Default shall have occurred and be
continuing, each Lender, the Issuing Bank, and each of their respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by applicable law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final, in
whatever currency) at any time held and other obligations (in whatever
currency) at any time owing by such Lender, the Issuing Bank or any such
Affiliate to or for the credit or the account of the Borrower against any and
all of the obligations of the Borrower now or hereafter existing under this
Agreement or any other Loan Document to such Lender or the Issuing Bank,
irrespective of whether or not such Lender or the Issuing Bank shall have made
any demand under this Agreement or any other Loan Document and although such
obligations of the Borrower may be contingent or unmatured or are owed to a
branch or office of such Lender or the Issuing Bank different from the branch
or office holding such deposit or obligated on such indebtedness. The rights
of each Lender, the Issuing Bank and their respective Affiliates under this
Section are in addition to other rights and remedies (including other rights
of setoff) that such Lender, the Issuing Bank or their respective Affiliates
may have. Each Lender and the Issuing Bank agrees to notify the Borrower and
the Administrative Agent promptly after any such setoff and application,
provided that the failure to give such notice shall not affect the validity of
such setoff and application. CREDIT AGREEMENT 85




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10.8 Sharing of Payments by Lenders. 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 Loans or other obligations hereunder
resulting in such Lenders receiving payment of a proportion of the aggregate
amount of its Loans and accrued interest thereon or other such obligations
greater than its pro rata share thereof as provided herein, then the Lender
receiving such greater proportion shall (a) notify the Administrative Agent of
such fact, and (b) purchase (for cash at face value) participations in the
Loans and such other obligations of the other Lenders, or make such other
adjustments as shall be equitable, 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 Loans and other
amounts owing them, 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 (x) any payment made by the Borrower pursuant to and in accordance with
the express terms of this Agreement or (y) any payment obtained by a
Lender as consideration for the assignment of or sale of a participation
in any of its Loans or participations in LC Disbursements to any assignee
or participant, other than to the Borrower or any Subsidiary thereof (as
to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation. 10.9 Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. 10.10 [Reserved]. 10.11 Obligations Several; Independent Nature of the Lenders Rights. The
obligations of the Lenders hereunder are several and no Lender shall be
responsible for the obligations or Commitments of any other Lender hereunder.
Nothing contained herein or in any other Loan Document, and no action taken by
the Lenders pursuant hereto or thereto, shall be deemed to constitute the
Lenders as a partnership, an association, a joint venture or any other kind of
entity. The amounts payable at any time hereunder to each Lender shall be a
separate and independent debt, and each Lender shall be entitled to protect and
enforce its rights arising out of this Agreement and it shall not be necessary
for any other Lender to be joined as an additional party in any proceeding for
such purpose. CREDIT AGREEMENT 86




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10.12 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the law of the State of New York. 10.13 Submission To Jurisdiction; Waivers. (a) Each Holdings and the
Borrower irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of the courts of the State of New York sitting
in New York County and of the United States District Court sitting in New York
City, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement or any other Loan Document, or for
recognition or enforcement of any judgment, and each of the parties hereto
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 court
or, to the fullest extent permitted by applicable 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 in any other Loan Document shall affect any right that the
Administrative Agent, any Lender or the Issuing Bank may otherwise have to
bring any action or proceeding relating to this Agreement or any other Loan
Document against the Borrower or its properties in the courts of any
jurisdiction. (b) Waiver of Venue. Each of Holdings and the Borrower irrevocably and
unconditionally waives, to the fullest extent permitted by applicable law, any
objection that it may now or hereafter have to the laying of venue of any
action or proceeding arising out of or relating to this Agreement or any other
Loan Document in any court referred to in paragraph (b) of this Section. Each
of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by applicable law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court. (c) Service of Process. Each party hereto irrevocably consents to service
of process in the manner provided for notices in Section 10.2. Nothing in this
Agreement will affect the right of any party hereto to serve process in any
other manner permitted by applicable law. 10.14 Acknowledgments. Each of Holdings and the Borrower hereby
acknowledges that: (a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents; (b) neither the Agents nor any Lender has any fiduciary relationship with
or duty to Holdings or the Borrower arising out of or in connection with this
Agreement or any of the other Loan Documents, and the relationship between
Agents and Lenders, on one hand, and Holdings and the Borrower, on the other
hand, in connection herewith or therewith is solely that of creditor and
debtor; and (c) no joint venture is created hereby or by the other Loan Documents or
otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among Holdings, the Borrower and the Lenders. CREDIT AGREEMENT 87




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10.15 Confidentiality. Each of the Agents, the Lenders and the Issuing
Bank agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its Affiliates and to
its and its Affiliates respective partners, directors, officers, employees,
agents, advisors and other representatives (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with
the exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii)
any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower and its obligations, (g) with
the consent of the Borrower or (h) to the extent such Information (x) becomes
publicly available other than as a result of a breach of this Section or (y)
becomes available to the Administrative Agent, any Lender, the Issuing Bank or
any of their respective Affiliates on a nonconfidential basis from a source
other than the Borrower. For purposes of this Section, Information means all information received
from the Borrower or any of its Subsidiaries relating to the Borrower or any of
its Subsidiaries or any of their respective businesses, other than any such
information that is available to the Administrative Agent, any Lender or the
Issuing Bank on a nonconfidential basis prior to disclosure by the Borrower or
any of its Subsidiaries, provided that, in the case of information received
from the Borrower or any of its Subsidiaries after the date hereof, such
information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information. 10.16 Waiver of Jury Trial. Each party hereto hereby irrevocably 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 or any other loan document or the transactions
contemplated hereby or thereby (whether based on contract, tort or any other
theory). each party hereto (a) certifies that no representative, agent or
attorney of any other person has represented, expressly or otherwise, that such
other person would not, in the event of litigation, seek to enforce the
foregoing waiver and (b) acknowledges that it and the other parties hereto have
been induced to enter into this agreement and the other loan documents by,
among other things, the mutual waivers and certifications in this section. 10.17 Counterparts; Integration; Electronic Effectiveness. (a) Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which
when taken together shall constitute a single contract. This CREDIT AGREEMENT 88




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Agreement and the other Loan Documents, and any separate letter agreements
with respect to fees payable to the Administrative Agent, constitute the entire
contract among the parties relating to the subject matter hereof and supersede
any and all previous agreements and understandings, oral or written, relating
to the subject matter hereof. Except as provided in Section 5, 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
that, when taken together, bear the signatures of each of the other parties
hereto. 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. (b) Electronic Execution of Assignments. The words execution, signed,
signature, and words of like import in any Assignment and Assumption shall be
deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records
Act, or any other similar state laws based on the Uniform Electronic
Transactions Act. 10.18 Maximum Amount. (a) It is the intention of the Borrower and the Lenders to conform
strictly to the usury and similar laws relating to interest from time to time
in force, and all agreements between the Loan Parties and their respective
Subsidiaries and the Lenders, whether now existing or hereafter arising and
whether oral or written, are hereby expressly limited so that in no
contingency or event whatsoever, whether by acceleration of maturity hereof or
otherwise, shall the amount paid or agreed to be paid in the aggregate to the
Lenders as interest (whether or not designated as interest, and including any
amount otherwise designated but deemed to constitute interest by a court of
competent jurisdiction) hereunder or under the other Loan Documents or in any
other agreement given to secure the Indebtedness or obligations of the
Borrower to the Lenders, or in any other document evidencing, securing or
pertaining to the Indebtedness evidenced hereby, exceed the maximum amount
permissible under applicable usury or such other laws (the Maximum Amount).
If under any circumstances whatsoever fulfillment of any provision hereof, or
any of the other Loan Documents, at the time performance of such provision
shall be due, shall involve exceeding the Maximum Amount, then, ipso facto,
the obligation to be fulfilled shall be reduced to the Maximum Amount. For
the purposes of calculating the actual amount of interest paid and/or payable
hereunder in respect of laws pertaining to usury or such other laws, all sums
paid or agreed to be paid to the holder hereof for the use, forbearance or
detention of the Indebtedness of the Borrower evidenced hereby, outstanding
from time to time shall, to the extent permitted by applicable law, be
amortized, pro-rated, allocated and spread from the date of disbursement of
the proceeds of the Notes until payment in full of all of such Indebtedness,
so that the actual rate of interest on account of such Indebtedness is uniform
through the term hereof. The terms and provisions of this subsection 10.18
shall control and supersede every other provision of all agreements between
the Borrower or any endorser of the Notes and the Lenders. CREDIT AGREEMENT 89




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(b) If under any circumstances any Lender shall ever receive an amount
which would exceed the Maximum Amount, such amount shall be deemed a payment
in reduction of the principal amount of the Loans and shall be treated as a
voluntary prepayment under subsection 2.11(a) and shall be so applied in
accordance with subsection 2.11(b) or if such excessive interest exceeds the
unpaid balance of the Loans and any other Indebtedness of the Borrower in
favor of such Lender, the excess shall be deemed to have been a payment made
by mistake and shall be promptly refunded to the Borrower. CREDIT AGREEMENT 90




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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written. BORROWER:
    
    DOANE PET CARE COMPANYBy:Name:Title:HOLDINGS:
    
    DOANE PET CARE ENTERPRISES, INC.,
as GuarantorBy:Name:Title:ADMINISTRATIVE AGENT:
    
    CREDIT SUISSE FIRST BOSTON,
acting through its Cayman Islands Branch,
as Administrative Agent and as a LenderBy:Name:Title:By:Name:Title:
 CREDIT AGREEMENT 91




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The following annex, exhibits and schedules to the Credit Agreement, dated as of November 5, 2004
among Doane Pet Care Company, as borrower, Doane Pet Care Enterprises, Inc., as guarantor, Credit Suisse First
Boston, as administrative agent, and the lenders party thereto have been omitted, but will be furnished supplementally to
the Securities and Exchange Commission upon request. ANNEX:A
    
    Sources and Uses TableSCHEDULES:1.1A
    
    Commitments4.1
    
    Material Leases/Commitments4.4
    
    Consents, Authorizations, Filings and Notices4.6
    
    Litigation; Claims4.8
    
    Real Property4.9
    
    Intellectual Property Claims4.13
    
    ERISA Terminations4.15
    
    Subsidiaries4.19(a)
    
    UCC Filing Jurisdictions4.19(b)
    
    Mortgage Filing Jurisdictions4.22
    
    Flood Zone Properties5.1(1)
    
    Certain Properties6.13
    
    Post-Closing Schedule7.2(e)
    
    Existing Indebtedness7.3(f)
    
    Existing Liens7.5
    
    Permitted Dispositions7.8(j)
    
    Existing Joint Ventures7.10
    
    Transactions with AffiliatesEXHIBITS:B
    
    Form of Compliance CertificateC
    
    Form of Secretarys CertificateE
    
    Form of Assignment and AssumptionF
    
    Form of Legal Opinion of Counsel for the BorrowerH
    
    Financial Condition CertificateI-1
    
    Form of Term Loan NoteI-2
    
    Form of Revolving NoteI-3
    
    Form of Swingline Note




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EXHIBIT A TO
CREDIT AGREEMENT [FORM OF] GUARANTEE AND COLLATERAL AGREEMENT made by DOANE PET CARE COMPANY and EACH OF THE OTHER GRANTORS (as defined herein) in favor of CREDIT SUISSE FIRST BOSTON,
ACTING THROUGH ITS CAYMAN ISLANDS BRANCH,
as Collateral Agent Dated as of November 5, 2004 27




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TABLE OF CONTENTS PageSECTION 1. DEFINED TERMS
    
    
    11.1 Definitions
    
    
    11.2 Other Definitional Provisions
    
    
    6SECTION 2. GUARANTEE2.1 Guarantee
    
    
    72.2 Right of Contribution
    
    
    82.3 No Subrogation
    
    
    82.4 Amendments, etc. with respect to the Borrower Obligations
    
    
    82.5 Guarantee Absolute and Unconditional
    
    
    92.6 Reinstatement
    
    
    92.7 Payments
    
    
    10SECTION 3. GRANT OF SECURITY INTEREST
    
    
    123.1 Grant of Security Interest
    
    
    123.2 Stock Powers
    
    
    13SECTION 4. REPRESENTATIONS AND WARRANTIES
    
    
    134.1 Representations in Credit Agreement
    
    
    144.2 Title; No Other Liens
    
    
    144.3 Perfected First Priority Liens
    
    
    144.4 Organization Information
    
    
    144.5 Legal Name
    
    
    144.6 Change in Name, Structure, etc
    
    
    144.7 Inventory and Equipment
    
    
    154.6 Farm Products
    
    
    154.7 Pledged Securities
    
    
    154.8 Accounts
    
    
    164.9 Intellectual Property
    
    
    16SECTION 5. COVENANTS
    
    
    175.1 Covenants in Credit Agreement
    
    
    175.2 Delivery of Instruments and Chattel Paper
    
    
    175.3 Maintenance of Insurance
    
    
    175.4 Maintenance of Perfected Security Interest;
Further Documentation
    
    
    185.5 Changes in Locations, Name, etc
    
    
    185.6 Notices
    
    
    185.7 Pledged Securities
    
    
    195.8 Accounts
    
    
    205.9 Intellectual Property
    
    
    205.10 Covenants of Holdings
    
    
    21SECTION 6. REMEDIAL PROVISIONS
    
    
    226.1 Certain Matters Relating to Accounts
    
    
    226.2 Communications with Obligors; Grantors Remain Liable
    
    
    236.3 Pledged Securities
    
    
    246.4 Proceeds to be Turned Over To Collateral Agent
    
    
    25




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Page6.5 Application of Proceeds
    
    
    256.6 Code and Other Remedies
    
    
    266.7 Registration Rights
    
    
    266.8 Waiver; Deficiency
    
    
    27SECTION 7. THE COLLATERAL AGENT
    
    
    277.1 Collateral Agents Appointment as Attorney-in-Fact, etc
    
    
    277.2 Duty of Collateral Agent
    
    
    297.3 Execution of Financing Statements
    
    
    297.4 Authority of Collateral Agent
    
    
    30SECTION 8. MISCELLANEOUS
    
    
    308.1 Amendments in Writing
    
    
    308.2 Notices
    
    
    308.3 No Waiver by Course of Conduct; Cumulative Remedies
    
    
    308.4 Enforcement Expenses; Indemnification
    
    
    308.5 Successors and Assigns
    
    
    318.6 Set-Off
    
    
    318.7 Counterparts
    
    
    318.8 Severability
    
    
    318.9 Section Headings
    
    
    328.10 Integration
    
    
    328.11 GOVERNING LAW
    
    
    328.12 Submission To Jurisdiction; Waivers
    
    
    328.13 Acknowledgements
    
    
    328.14 WAIVER OF JURY TRIAL
    
    
    338.15 Additional Grantors
    
    
    338.16 Releases
    
    
    33
 SCHEDULES: 1
    
    
    Notice Addresses of Guarantors2
    
    
    Description of Pledged Securities3
    
    
    Filings and Other Actions Required to Perfect Security Interests4
    
    
    General Information5
    
    
    Location of Inventory and Equipment6
    
    
    Copyrights, Patents and Trademarks7
    
    
    Accounts8
    
    
    Existing Prior Liens9
    
    
    Investment Accounts10
    
    
    Commercial Tort Claims11
    
    
    Pledged Debt12
    
    
    Letters of CreditANNEXES:1
    
    
    Form of Assumption AgreementEXHIBITSA
    
    
    Trademark Security AgreementB
    
    
    Copyright Security AgreementC
    
    
    Patent Security Agreement
 ii




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GUARANTEE AND COLLATERAL AGREEMENT GUARANTEE AND COLLATERAL AGREEMENT, dated as of November 5, 2004 (as
amended, supplemented or otherwise modified from time to time, this
Agreement), made by DOANE PET CARE ENTERPRISES, INC., a Delaware corporation
(Holdings), DOANE PET CARE COMPANY, a Delaware corporation (the Borrower),
each of the signatories hereto (Holdings, the Borrower and each of the
signatories hereto, together with any other subsidiary of the Borrower that
becomes a party hereto from time to time after the date hereof, the
Grantors), in favor of CREDIT SUISSE FIRST BOSTON, ACTING THROUGH ITS CAYMAN
ISLANDS BRANCH , as Collateral Agent (together with its successors and assigns,
in such capacity, the Collateral Agent) for the Secured Parties (as defined
herein). W I T N E S S E T H: WHEREAS, reference is made to that certain Credit Agreement, dated as of
the date hereof (as it may be amended, restated, supplemented or otherwise
modified from time to time, the Credit Agreement), by and among the Borrower,
Holdings, the lenders party thereto from time to time (the Lenders), Credit
Suisse First Boston, acting through its Cayman Islands Branch, as
Administrative Agent, Sole Bookrunner and Sole Lead Arranger, and the
Collateral Agent. WHEREAS, the Borrower is a member of an affiliated group of companies that
includes each other Grantor; WHEREAS, the Borrower and the other Grantors are engaged in related
businesses, and each Grantor will derive substantial direct and indirect
benefit from the making of the extensions of credit under the Credit Agreement;
and WHEREAS, it is a condition precedent to the obligation of the Lenders to
make or continue their respective extensions of credit to the Borrower under
the Credit Agreement that the Grantors shall have executed and delivered this
Agreement to the Collateral Agent for the ratable benefit of the Secured
Parties; NOW, THEREFORE, the parties hereto agree that the Existing Guarantee and
Collateral Agreement shall, as of the date hereof, be amended and restated in
its entirety as follows: SECTION 1. DEFINED TERMS 1.1 Definitions. (a) Unless otherwise defined herein, terms defined
in the Credit Agreement and used herein shall have the meanings given to them
in the Credit Agreement, or if not defined therein, in the UCC. The following terms shall have the following meanings: 1




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Account Debtor: an account debtor (as such term is defined in Article
9 of the UCC). Accounts: all accounts (as such term is defined in Article 9 of the
UCC) of the Grantors, including, without limitation , accounts, accounts
receivable and other rights of any Grantor to payment for goods sold or leased
or for services rendered, whether now existing or hereafter arising and
wherever arising, and whether or not they have been earned by performance. Agreement: shall have the meaning set forth in the preamble. Borrower Obligations: the collective reference to the Obligations as
defined in the Credit Agreement. Chattel Paper: all chattel paper as such term is defined in Article 9
of the UCC, including, without limitation, electronic chattel paper or
tangible chattel paper, as each term is defined in Article 9 of the UCC. Collateral: as defined in Section 3.1. Commercial Tort Claims: all commercial tort claims as such term is
defined in Article 9 of the UCC, including, without limitation, all commercial
tort claims listed on Schedule 10 (as such schedule may be amended or
supplemented from time to time). Commodities Accounts: all commodity accounts as such term is defined
in Article 9 of the UCC and shall include all of the accounts listed on
Schedule 9 (as such schedule may be amended or supplemented from time to time)
except for commodities accounts with account numbers 13554 and 13555 maintained
with Rand Financial Services, Inc., as commodity intermediary and commodity
accounts agreed in writing by Collateral Agent to be excluded from the
definition of Collateral under this Agreement. Concentration Account: any concentration account established by the
Collateral Agent as provided in Section 6.1 or 6.4. Copyright Licenses: any written agreement (including, without
limitation, those listed in Schedule 6, as such schedule may be amended or
supplemented from time to time), granting any right under any Copyright
(whether such Grantor is licensee or licensor thereunder), including, without
limitation, the grant of rights to manufacture, distribute, exploit and sell
materials derived from any Copyright. Copyrights: (i) all copyrights arising under the laws of the United
States, any other country or any political subdivision thereof, and all Mask
Works (as defined under 17 U.S.C. 901 of the U.S. Copyright Act) whether
registered or unregistered and whether published or unpublished (including,
without limitation, those listed in Schedule 6) as such schedule may be amended
or supplemented from time to time, all registrations and recordings thereof,
and all applications in connection therewith, including, without limitation,
all registrations, recordings and applications in the United States Copyright Office, (ii) the right to
obtain all renewals and 2




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extensions of the foregoing thereof, (iii) all rights
corresponding to the foregoing throughout the world, and (iv) all rights to sue
for past, present and future infringements of the foregoing. Danish Demand Note: the demand promissory note (and any replacement
thereof) issued by Arovit Holdings in favor of DPC Investment dated as of
January 31, 2004, in the principal amount of DKK 1,419,337,236.15, as from time
to time amended (without prejudice to Section 5.7(d)). Deposit Account: all deposit accounts as such term is defined in
Article 9 of the UCC and shall include, without limitation, all of the accounts
listed on Schedule 9 (as such schedule may be amended or supplemented from time
to time). Documents: all documents as such term is defined in Article 9 of the
UCC. DPC Investment: DPC Investment Corp., a Delaware corporation. Equipment: all equipment as such term is defined in Article 9 of the
UCC, all machinery, manufacturing equipment, data processing equipment,
computers, office equipment, furnishings, furniture, appliances, fixtures and
tools (in each case, regardless of whether characterized as equipment under the
UCC) and all accessions or additions thereto, all parts thereof, whether or not
at any time of determination incorporated or installed therein or attached
thereto, and all replacements therefore, wherever located, now or hereafter
existing, including any fixtures. General Intangibles: all general intangibles as such term is defined
in Article 9 of the UCC and, in any event, including, without limitation, with
respect to any Grantor, all contracts, agreements, instruments and indentures
in any form, and portions thereof, to which such Grantor is a party or under
which such Grantor has any right, title or interest or to which such Grantor or
any property of such Grantor is subject, as the same may from time to time be
amended, supplemented or otherwise modified, including, without limitation, (i)
all rights of such Grantor to receive moneys due and to become due to it
thereunder or in connection therewith, (ii) all rights of such Grantor to
damages arising thereunder and (iii) all rights of such Grantor to perform and
to exercise all remedies thereunder. Goods: all goods as such term is defined in Article 9 of the UCC and
shall include, without limitation, all Inventory and Equipment (in each case,
regardless of whether characterized as goods under the UCC). Guarantor Obligations: with respect to any Guarantor, the collective
reference to (i) the Borrower Obligations and (ii) all obligations and
liabilities of such Guarantor which may arise under or in connection with this
Agreement or any other Loan Document to which such Guarantor is a party, in
each case whether on account of guarantee obligations, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise (including,
without limitation, all fees and disbursements of counsel to the Collateral
Agent or to the Secured Partys that are required to be paid by such Guarantor
pursuant to the terms of this Agreement or any other Loan Document). 3




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Guarantors: the collective reference to Holdings and each Grantor other
than the Borrower. Instruments: all instruments as such term is defined in Article 9 of
the UCC. Intellectual Property: the collective reference to all rights,
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including,
without limitation, the Copyrights, the Copyright Licenses, the Patents, the
Patent Licenses, the Trademarks and the Trademark Licenses, and all rights to
sue at law or in equity for any infringement or other impairment thereof,
including the right to receive all proceeds and damages therefrom. Inventory: all inventory as such term is defined in Article 9 of the
UCC and all goods held for sale or lease or to be furnished under contracts of
service or so leased or furnished, all raw materials, work in process, finished
goods, and materials used or consumed in the manufacture, packing, shipping,
advertising, selling, leasing, furnishing or production of such inventory or
otherwise used or consumed in any Grantors business; all goods in which any
Grantor has an interest in mass or a joint or other interest or right of any
kind; and all goods which are returned to or repossessed by any Grantor, all
computer programs embedded in any goods and all accessions thereto and products
thereof (in each case, regardless of whether characterized as inventory under
the UCC). Investment Accounts: all Securities Accounts, Commodities Accounts and
Deposit Accounts. Issuers: the collective reference to each issuer of a Pledged Security. Lender Counterparty: each Lender or any Affiliate of a Lender
counterparty to a Hedge Agreement. MDFC Operating Lease: the Equipment Lease Agreement, between the
Borrower and MDFC Equipment Leasing Corporation, dated as of October 2, 1998,
as amended. Money: all money as such term is defined in Article 9 of the UCC. New York UCC: the Uniform Commercial Code as from time to time in
effect in the State of New York. Obligations: (i) in the case of the Borrower, the Borrower Obligations,
and (ii) in the case of each Guarantor, its Guarantor Obligations. Patent License: all agreements, whether written or oral, providing for
the grant by or to any Grantor of any right to manufacture, use or sell any
invention covered in whole or in part by a Patent (whether such Grantor is
licensee or licensor thereunder), including, without limitation, any of the
foregoing referred to in Schedule 6 (as such schedule may be amended or
supplemented from time to time). 4




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Patents: (i) all letters patent of the United States, any other country
or any political subdivision thereof, all reissues and extensions thereof and
all goodwill associated therewith, including, without limitation, any of the
foregoing referred to in Schedule 6 (as such schedule may be amended or
supplemented from time to time), (ii) all applications for letters patent of
the United States or any other country and all divisions, continuations and
continuations-in-part thereof, including, without limitation, any of the
foregoing referred to in Schedule 6 (as such schedule may be amended or
supplemented from time to time), (iii) all rights to obtain any reissues or
extensions of the foregoing, (iv) all rights corresponding to the foregoing
throughout the world, (v) all inventions and improvements described in the
foregoing, (vi) all rights to sue for past, present and future infringements of
the foregoing and (vii) all licenses, claims, damages and proceeds of suit
arising therefrom. Pledged Debt: all Indebtedness owed to such Grantor, whether or not
evidenced by any instrument, including without limitation, all Pledged Notes. Pledged LLC Interests: all interests in any limited liability company
listed on Schedule 2 (as such schedule may be amended or supplemented from time
to time), together with any other interests, certificates, options or rights
of any nature whatsoever in respect of the limited liability company interest
of any Person that may be issued or granted to, or held by, any Grantor while
this Agreement is in effect. Pledged Notes: all promissory notes listed on Schedule 2 (as such
schedule may be amended or supplemented from time to time), all Intercompany
Notes at any time issued to any Grantor (including, without limitation, the
Danish Demand Note) and all other promissory notes issued to or held by any
Grantor (other than promissory notes issued in connection with extensions of
trade credit by any Grantor in the ordinary course of business). Pledged Partnership Interests: all interests in any general
partnership, limited partnership, limited liability partnership or other
partnership listed on Schedule 2 (as such schedule may be amended or
supplemented from time to time), together with any other interests,
certificates, options or rights of any nature whatsoever in respect of the
partnership interest of any Person that may be issued or granted to, or held
by, any Grantor while this Agreement is in effect. Pledged Trust Interests: all interests in a Delaware business trust or
other trust listed on Schedule 2 (as such schedule may be amended or
supplemented from time to time), together with any other interests,
certificates, options or rights of any nature whatsoever in respect of the
trust interest of any Person that may be issued or granted to, or held by, any
Grantor while this Agreement is in effect. Pledged Securities: the collective reference to the Pledged Notes, the
Pledged Stock the Pledged LLC Interests, the Pledged Partnership Interests and
the Pledged Trust Interests. Pledged Stock: the shares of Capital Stock listed on Schedule 2 (as
such schedule may be amended or supplemented from time to time), together with
any other shares, stock certificates, options or rights of any nature
whatsoever in respect of the Capital Stock of 5




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any Person that may be issued or granted to, or held by, any Grantor while
this Agreement is in effect (which, in the case of the Foreign Subsidiaries,
shall not exceed 65% of the Capital Stock of such Foreign Subsidiaries). Proceeds: all proceeds as such term is defined in Article 9 of the
UCC and, in any event, shall include, without limitation, all dividends or
other income from the Pledged Securities, collections thereon or distributions
or payments with respect thereto. Secured Parties: the Lenders, the Lender Counterparties and Agents and
shall include, without limitation, all former Lenders, Lender Counterparties
and Agents to the extent that any Obligations owing to such Persons were
incurred while such Persons were Lenders, Lender Counterparties or Agents and
such Obligations have not been paid or satisfied in full. Securities Accounts: all securities accounts as such term is defined
in Article 8 of the UCC and shall include, without limitation, all of the
accounts listed on Schedule 9 (as such schedule may be amended or supplemented
from time to time). Securities Act: the Securities Act of 1933, as amended. Trademark License: any agreement, whether written or oral, providing
for the grant by or to any Grantor of any right to use any Trademark (whether
such Grantor is licensee or licensor thereunder), including, without
limitation, any of the foregoing referred to in Schedule 6 (as such schedule
may be amended or supplemented from time to time). Trademarks: (i) all trademarks, trade names, corporate names, company
names, business names, fictitious business names, trade styles, service marks,
logos and other source or business identifiers, and all goodwill associated
therewith, now existing or hereafter adopted or acquired, all registrations and
recordings thereof, and all applications in connection therewith other than any
pending intent to use applications for which a statement of use or an amendment
to allege use have not been filed and accepted, whether in the United States
Patent and Trademark Office or in any similar office or agency of the United
States, any State thereof or any other country or any political subdivision
thereof, or otherwise, and all common-law rights related thereto, including,
without limitation, any of the foregoing referred to in Schedule 6, (as such
schedule may be amended or supplemented from time to time) (ii) the right to
obtain all renewals and extensions of the foregoing, (iii) all of the goodwill
of the business connected with the use of and symbolized by the foregoing and
(iv) the right to sue for past, present and future infringement or dilution of
any of the foregoing or for any injury to goodwill. UCC: the Uniform Commercial Code as in effect from time to time in the
State of New York or, when the context implies, the Uniform Commercial Code as
in effect from time to time in any other applicable jurisdiction. Vehicles: all cars, trucks, trailers, construction and earth moving
equipment and other vehicles and equipment covered by a certificate of title of
any state or of the United States of America and all tires and other
appurtenances to any of the foregoing. 1.2 Other Definitional Provisions. (a) The words hereof, herein,
hereto and hereunder and words of similar import when used in this Agreement
shall refer to this 6




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Agreement as a whole and not to any particular provision of
this Agreement, and Section and Schedule references are to this Agreement unless
otherwise specified. (b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms. (c) Where the context requires, terms relating to the Collateral or any
part thereof, when used in relation to a Grantor, shall refer to such Grantors
Collateral or the relevant part thereof. SECTION 2. GUARANTEE 2.1 Guarantee. (a) Each of the Guarantors hereby, jointly and
severally, unconditionally and irrevocably, guarantees to the Collateral Agent,
for the ratable benefit of the Lenders, the Lender Counterparties and their
respective successors, indorsees, transferees and assigns, the prompt and
complete payment and performance by the Borrower when due (whether at the
stated maturity, by acceleration or otherwise) of the Borrower Obligations. (b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and under
the other Loan Documents shall in no event exceed the amount which can be
guaranteed by such Guarantor under applicable federal and state laws relating
to the insolvency of debtors (after giving effect to the right of contribution
established in Section 2.2). (c) Each Guarantor agrees that the Borrower Obligations may at any time
and from time to time exceed the amount of the liability of such Guarantor
hereunder without impairing the guarantee contained in this Section 2 or
affecting the rights and remedies of the Collateral Agent or any Secured Party
hereunder. (d) The guarantee contained in this Section 2 shall remain in full force
and effect until all the Borrower Obligations and the obligations of each
Guarantor under the guarantee contained in this Section 2 shall have been
satisfied by payment in full, no Letter of Credit shall be outstanding and the
Commitments shall be terminated, notwithstanding that from time to time during
the term of the Credit Agreement, no Borrower Obligations may be outstanding. (e) No payment made by the Borrower, any of the Guarantors, any other
guarantor or any other Person or received or collected by the Collateral Agent
or any Secured Party from the Borrower, any of the Guarantors, any other
guarantor or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application at any time or from time to time in
reduction of or in payment of the Borrower Obligations shall be deemed to
modify, reduce, release or otherwise affect the liability of any Guarantor
hereunder which shall, notwithstanding any such payment (other than any payment
made by such Guarantor in respect of the Borrower Obligations or any payment
received or collected from such Guarantor in respect of the Borrower
Obligations), remain liable for the Borrower Obligations up to the
maximum liability of such Guarantor hereunder until the Borrower
Obligations are paid in full, no Letter of Credit shall be outstanding and the
Commitments are terminated. 7




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2.2 Right of Contribution. Each Guarantor hereby agrees that to the
extent that a Guarantor shall have paid more than its proportionate share of
any payment made hereunder, such Guarantor shall be entitled to seek and
receive contribution from and against any other Guarantor hereunder which has
not paid its proportionate share of such payment. Each Guarantors right of
contribution shall be subject to the terms and conditions of Section 2.3. The
provisions of this Section 2.2 shall in no respect limit the obligations and
liabilities of any Guarantor to the Collateral Agent and the Secured Parties,
and each Guarantor shall remain liable to the Collateral Agent and the Secured
Parties for the full amount guaranteed by such Guarantor hereunder. 2.3 No Subrogation. Notwithstanding any payment made by any
Guarantor hereunder or any set-off or application of funds of any Guarantor by
the Collateral Agent or any Secured Party, no Guarantor shall be entitled to be
subrogated to any of the rights of the Collateral Agent or any Secured Party
against the Borrower or any other Guarantor or any collateral security or
guarantee or right of offset held by the Collateral Agent or any Secured Party
for the payment of the Borrower Obligations, nor shall any Guarantor seek or be
entitled to seek any contribution or reimbursement from the Borrower or any
other Guarantor in respect of payments made by such Guarantor hereunder, until
all amounts owing to the Collateral Agent and the Secured Parties by the
Borrower on account of the Borrower Obligations are paid in full, no Letter of
Credit shall be outstanding and the Commitments are terminated. If any amount
shall be paid to any Guarantor on account of such subrogation rights at any
time when all of the Borrower Obligations shall not have been paid in full,
such amount shall be held by such Guarantor in trust for the Collateral Agent
and the Secured Parties, and shall, forthwith upon receipt by such Guarantor,
be turned over to the Collateral Agent in the exact form received by such
Guarantor (duly indorsed by such Guarantor to the Collateral Agent, if
required), to be applied against the Borrower Obligations, whether matured or
unmatured, in such order as the Collateral Agent may determine. 2.4 Amendments, etc. with respect to the Borrower Obligations. Each
Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any demand for payment of any of the Borrower
Obligations made by the Collateral Agent or any Secured Party may be rescinded
by the Collateral Agent or such Secured Party and any of the Borrower
Obligations continued, and the Borrower Obligations, or the liability of any
other Person upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the Collateral
Agent or any Secured Party, and the Credit Agreement, the other Loan Documents,
and any Hedging Agreement, and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Collateral Agent (or the Required Lenders, the
Majority Facility Lenders or all Lenders, as the case may
be) may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by the Collateral Agent or any
Secured Party for the payment of the Borrower Obligations may be sold,
exchanged, waived, surrendered or released. Neither the Collateral Agent nor
any Secured Party shall have any obligation to protect, secure, perfect or
insure any Lien at any time held by it as security for the Borrower Obligations
or for the guarantee contained in this Section 2 or any property subject
thereto. 8




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2.5 Guarantee Absolute and Unconditional. Each Guarantor waives any
and all notice of the creation, renewal, extension or accrual of any of the
Borrower Obligations and notice of or proof of reliance by the Collateral Agent
or any Secured Party upon the guarantee contained in this Section 2 or
acceptance of the guarantee contained in this Section 2; the Borrower
Obligations, and any of them, shall conclusively be deemed to have been
created, contracted or incurred, or renewed, extended, amended or waived, in
reliance upon the guarantee contained in this Section 2; and all dealings
between the Borrower and any of the Guarantors, on the one hand, and the
Collateral Agent and the Secured Parties, on the other hand, likewise shall be
conclusively presumed to have been had or consummated in reliance upon the
guarantee contained in this Section 2. Each Guarantor waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Borrower or any of the Guarantors with respect to the Borrower
Obligations. Each Guarantor understands and agrees that the guarantee
contained in this Section 2 shall be construed as a continuing, absolute and
unconditional guarantee of payment without regard to (a) the validity or
enforceability of the Credit Agreement or any other Loan Document, any of the
Borrower Obligations or any other collateral security therefor or guarantee or
right of offset with respect thereto at any time or from time to time held by
the Collateral Agent or any Secured Party, (b) any defense, set-off or
counterclaim (other than a defense of payment or performance) which may at any
time be available to or be asserted by the Borrower or any other Person against
the Collateral Agent or any Secured Party, or (c) any other circumstance
whatsoever (with or without notice to or knowledge of the Borrower or such
Guarantor) which constitutes, or might be construed to constitute, an equitable
or legal discharge of the Borrower for the Borrower Obligations, or of such
Guarantor under the guarantee contained in this Section 2, in bankruptcy or in
any other instance. When making any demand hereunder or otherwise pursuing its
rights and remedies hereunder against any Guarantor, the Collateral Agent or
any Secured Party may, but shall be under no obligation to, make a similar
demand on or otherwise pursue such rights and remedies as it may have against
the Borrower, any other Guarantor or any other Person or against any collateral
security or guarantee for the Borrower Obligations or any right of offset with
respect thereto, and any failure by the Collateral Agent or any Secured Party
to make any such demand, to pursue such other rights or remedies or to collect
any payments from the Borrower, any other Guarantor or any other Person or to
realize upon any such collateral security or guarantee or to exercise any such
right of offset, or any release of the Borrower, any other Guarantor or any
other Person or any such collateral security, guarantee or right of offset,
shall not relieve any Guarantor of any obligation or liability hereunder, and
shall not impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of the Collateral Agent or any Secured Party
against any Guarantor. For the purposes hereof demand shall include the
commencement and continuance of any legal proceedings. 2.6 Bankruptcy, etc. (a) The guarantee contained in this Section 2 shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any of the Borrower Obligations is rescinded or recovered
directly or indirectly from any Lender, Lender Counterparty and their
respective successors, indorsees, transferees, and assignees as a preference,
fraudulent transfer or otherwise, or must otherwise be restored or returned by
the Collateral Agent or any Secured Party upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Borrower or any Guarantor, or
upon or as a result of the appointment of a receiver, intervenor or conservator
of, or trustee or similar officer for, the 9




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Borrower or any Guarantor or any
substantial part of its property, or otherwise, all as though such payments had
not been made. (b) So long as any Borrower Obligations remain outstanding, no Guarantor
shall, without the prior written consent of Administrative Agent acting
pursuant to the instructions of Required Lenders, commence or join with any
other Person in commencing any bankruptcy, reorganization or insolvency case or
proceeding of or against the Borrower or any other Guarantor. The obligations
of Guarantors hereunder shall not be reduced, limited, impaired, discharged,
deferred, suspended or terminated by any case or proceeding, voluntary or
involuntary, involving the bankruptcy, insolvency, receivership,
reorganization, liquidation or arrangement of the Borrower or any other
Guarantor or by any defense which Company or any other Guarantor may have by
reason of the order, decree or decision of any court or administrative body
resulting from any such proceeding. (c) Each Guarantor acknowledges and agrees that any interest on any
portion of the Guaranteed Obligations which accrues after the commencement of
any case or proceeding referred to in clause (b) above (or, if interest on any
portion of the Guaranteed Obligations ceases to accrue by operation of law by
reason of the commencement of such case or proceeding, such interest as would
have accrued on such portion of the Guaranteed Obligations if such case or
proceeding had not been commenced) shall be included in the Guaranteed
Obligations because it is the intention of Guarantors and Beneficiaries that
the Guaranteed Obligations which are guaranteed by Guarantors pursuant hereto
should be determined without regard to any rule of law or order which may
relieve the Borrower of any portion of such Guaranteed Obligations. Guarantors
will permit any trustee in bankruptcy, receiver, debtor in possession, assignee
for the benefit of creditors or similar person to pay Administrative Agent, or
allow the claim of Administrative Agent in respect of, any such interest
accruing after the date on which such case or proceeding is commenced. 2.7 Payments. Each Guarantor hereby guarantees that payments
hereunder will be paid to the Collateral Agent without set-off or counterclaim
in Dollars at the office of the Collateral Agent located at the relevant
Funding Office. 2.8 Waivers. Each Guarantor hereby waives, for the benefit of Lenders,
the Lender Counterparties and their respective successors, indorsees,
transferees and assigns: (a) any right to require any Person, as a condition of
payment or performance by such Guarantor, to (i) proceed against Borrower, any
other guarantor (including any other Guarantor) of the Borrower Obligations or
any other Person, (ii) proceed against or exhaust any security held from
Borrower, any such other guarantor or any other Person, (iii) proceed against or
have resort to any balance of any Deposit Account or credit on the books of any
Lender, Lender Counterparty and their respective successors, indorsees,
transferees and assigns in favor of Borrower or any other Person, or (iv)
pursue any other remedy in the power of any Lender, Lender Counterparty and
their respective successors, indorsees, transferees and assigns whatsoever; (b)
any defense arising by reason of the incapacity, lack of authority or any
disability or other defense of Borrower or any other Guarantor including any
defense based on or arising out of the lack of validity or the unenforceability
of the Borrower Obligations or any agreement or instrument relating thereto or
by reason of the cessation of the liability of Borrower or any other Guarantor
from any cause other than payment in full of the Borrower Obligations; (c) any
defense based 10




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upon any statute or rule of law which provides that the
obligation of a surety must be neither larger in amount nor in other respects
more burdensome than that of the principal; (d) any defense based upon any
errors or omissions in the administration of the Borrower Obligations by any
Agent, Lender, the Lender Counterparty and their respective successors,
indorsees, transferees and assigns, except behavior which amounts to bad faith;
(e) (i) any principles or provisions of law, statutory or otherwise, which are
or might be in conflict with the terms hereof and any legal or equitable
discharge of such Guarantors obligations hereunder, (ii) the benefit of any
statute of limitations affecting such Guarantors liability hereunder or the
enforcement hereof, (iii) any rights to set-offs, recoupments and
counterclaims, and (iv) promptness, diligence and any requirement that any
Agent, Lender, the Lender Counterparty and their respective successors,
indorsees, transferees and assigns protect, secure, perfect or insure any
security interest or lien or any property subject thereto; (f) notices,
demands, presentments, protests, notices of protest, notices of dishonor and
notices of any action or inaction, including acceptance hereof, notices of
default hereunder, the Hedge Agreements or any agreement or instrument related
thereto, notices of any renewal, extension or modification of the Borrower
Obligations or any agreement related thereto, notices of any extension of
credit to Borrower and notices of any of the matters referred to in Section 2
and any right to consent to any thereof; and (g) any defenses or benefits that
may be derived from or afforded by law which limit the liability of or
exonerate guarantors or sureties, or which may conflict with the terms hereof. 2.9 Subordination of Other Obligations. Any Indebtedness of Borrower or
any Guarantor now or hereafter held by any Guarantor (the Obligee Guarantor)
is hereby subordinated in right of payment to the Borrower Obligations, and any
such indebtedness collected or received by the Obligee Guarantor after an Event
of Default has occurred and is continuing shall be held in trust for
Administrative Agent on behalf of Beneficiaries and shall forthwith be paid
over to Administrative Agent for the benefit of the Lenders, the Lender
Counterparties and their respective successors, indorsees, transferees and
assigns to be credited and applied against the Borrower Obligations but without
affecting, impairing or limiting in any manner the liability of the Obligee
Guarantor under any other provision hereof. 2.10 Authority of Guarantors or Borrower. It is not necessary
for any Lender, Lender Counterparty and their respective successors,
indorsees, transferees and assigns to inquire into the capacity or powers of
any Guarantor or Borrower or the officers, directors or any agents acting or
purporting to act on behalf of any of them. 2.11
Financial Condition of Borrower. Any Credit Extension may be made to
Borrower or continued from time to time, and any Hedge Agreements may be
entered into from time to time, in each case without notice to or authorization
from any Guarantor regardless of the financial or other condition of Borrower
at the time of any such grant or continuation or at the time such Hedge
Agreement is entered into, as the case may be. No Lender, Lender Counterparty
and their respective successors, indorsees, transferees and assigns shall have
any obligation to disclose or discuss with any Guarantor its assessment, or any
Guarantors assessment, of the financial condition of Borrower. Each Guarantor
has adequate means to obtain information from Borrower on a continuing basis
concerning the financial condition of Borrower and its ability to perform its
obligations under the Credit Documents and the Hedge 11




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Agreements, and each
Guarantor assumes the responsibility for being and keeping informed of the
financial condition of Borrower and of all circumstances bearing upon the risk
of nonpayment of the Borrower Obligations. Each Guarantor hereby waives and
relinquishes any duty on the part of any Lender, Lender Counterparty and their
respective successors, indorsees, transferees and assigns to disclose any
matter, fact or thing relating to the business, operations or conditions of
Borrower now known or hereafter known by any Lender, Lender Counterparty and
their respective successors, indorsees, transferees and assigns. SECTION 3. GRANT OF SECURITY INTEREST 3.1 Grant of Security Interest. Each Grantor hereby assigns,
transfers and grants to the Collateral Agent for the ratable benefit of the
Secured Parties, a security interest in all of the following property now owned
or at any time hereafter acquired by such Grantor or in which such Grantor now
has or at any time in the future may acquire any right, title or interest
(collectively, the Collateral), as collateral security for the prompt and
complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of such Grantors Obligations:  (a)
    
    all Accounts;(b)
    
    all Chattel Paper;(c)
    
    Commercial Tort Claims listed on Schedule 10 (as such schedule
may be amended or supplemented from time to time);(d)
    
    all Commodities Accounts;(e)
    
    all Documents;(f)
    
    all General Intangibles;(g)
    
    all Goods;(h)
    
    all Instruments;(i)
    
    all Intellectual Property;(j)
    
    all Investment Accounts;(k)
    
    all Letter of Credit Rights;(l)
    
    all Money;(m)
    
    all Pledged Debt; 12




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(n)
    
    all Pledged Securities and, in the case of the Danish Demand
Note, including, without limitation, any right of DPC Investment to make
demand for payment upon Arovit Holdings thereunder;(o)
    
    all books and records pertaining to the Collateral and;(p)
    
    to the extent not otherwise included, all Proceeds and products
of any and all of the foregoing and all collateral security and
guarantees given by any Person with respect to any of the foregoing. provided, however, that no Grantor assigns, transfers or grants a security
interest in and to any of its right, title and interests under nor shall the
term Collateral include (a) any of the property now or hereafter securing an
IDB financing or now or hereafter subject of the MDFC Operating Lease; (b) any
lease, license, contract, property rights or agreement to which any Grantor is
a party or any of its rights or interests thereunder if and for so long as the
grant of such security interest shall constitute or result in (i) the
abandonment, invalidation or unenforceability of any right, title or interest
of any Grantor therein or (ii) in a breach or termination pursuant to the terms
of, or a default under, any such lease, license, contract property rights or
agreement (in each case, other than to the extent that any such term would be
rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the
UCC (or any successor provision or provisions) of any relevant jurisdiction or
any other applicable law (including the Bankruptcy Code) or principles of
equity), provided, that the Collateral shall include, the applicable Grantor
hereby grants a security interest in and such security interest shall attach
to, such lease, license, contract, property rights or agreement at such time as
the condition causing such abandonment, invalidation or unenforceability shall
be remedied and to the extent severable, to any portion of such lease, license,
contract, property rights or agreement that does not result in any of the
consequences specified in (i) or (ii) above; (c) any outstanding Capital Stock
of a Foreign Subsidiary in excess of 65% of the voting power of all classes of
Capital Stock of such Foreign Subsidiary to the extent the pledge of any
greater percentage would result in adverse tax consequences to the Borrower or
(d) commodities accounts with account numbers 13554 and
13555 maintained with Rand Financial Services, Inc., as commodity intermediary
and commodity accounts agreed in writing by Collateral Agent to be excluded
from the definition of Collateral under this Agreement. 3.2 Stock Powers. Concurrently with the delivery to the Collateral
Agent of each certificate representing one or more shares of Pledged Stock to
the Collateral Agent, the Grantor owning such Pledged Stock shall deliver an
undated stock power covering such certificate, duly executed in blank by such
Grantor. SECTION 4. REPRESENTATIONS AND WARRANTIES To induce the Secured Parties to enter into the Credit Agreement, the
Letters of Credit and/or Hedge Agreements and to induce the Secured Parties to
make their respective extensions of credit to the Borrower thereunder, each
Grantor hereby represents and warrants to the Collateral Agent and each Secured
Party that: 13




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4.1 Representations in Credit Agreement. In the case of each
Guarantor, the representations and warranties set forth in Section 4 of the
Credit Agreement as they relate to such Guarantor or to the Loan Documents to
which such Guarantor is a party are true and correct in all material respects,
provided that each reference in each such representation and warranty to the
Borrowers knowledge shall, for the purposes of this Section 4.1, be deemed to
be a reference to such Guarantors knowledge. 4.2 Title; No Other Liens. Except for the security interest granted
to the Collateral Agent for the ratable benefit of the Secured Parties pursuant
to this Agreement and the other Liens permitted to exist on the Collateral by
the Credit Agreement, such Grantor owns its respective items of the Collateral
free and clear of any and all Liens or claims of others. No financing
statement or other public notice with respect to all or any part of the
Collateral is on file or of record in any public office, except such as have
been filed in favor of the Collateral Agent, for the ratable benefit of the
Secured Parties, pursuant to this Agreement or as are filed to secure Liens
permitted by the Credit Agreement and except in the case of public notice
filings at the U.S. Patent and Trademark Office which remain on file despite
the filing of a subsequent release. 4.3 Perfected First Priority Liens. The security interests granted
pursuant to this Agreement (a) upon completion of the filings and other actions
specified on Schedule 3 (which, in the case of all filings and other documents
referred to on said Schedule, have been delivered to the Collateral Agent in
completed and duly executed form) will constitute valid perfected security
interests in all of the Collateral in favor of the Collateral Agent, for the
ratable benefit of the Secured Parties, as collateral security for such
Grantors Obligations, enforceable in accordance with the terms hereof against
all creditors of such Grantor and any Persons purporting to purchase any
Collateral from such Grantor and (b) are prior to all other Liens on the
Collateral in existence on the date hereof except for (i) Liens permitted by the Credit Agreement
which have priority over the Liens on the Collateral by operation of law and
(ii) Liens described on Schedule 8 (as such schedule may be amended or
supplemented from time to time). 4.4 Organization Information. Such Grantor has indicated on Schedule
4(A) (as such schedule may be amended or supplemented from time to time): (a)
the type of organization of such Grantor, (b) the jurisdiction of organization
of such Grantor, (c) its organization identification number and (d) the
jurisdiction where the chief executive office or its sole place of business is,
and for the five-year period preceding the Effective Date has been, located. 4.5 Legal Name. The full legal name of such Grantor is as set forth
on Schedule 4(A) (as such schedule may be amended or supplemented from time to
time) and it has not done for the past five (5) years prior to the Effective
Date, and does not do, business under any other name (including any trade-name
or fictitious business name) except for those names set forth on Schedule 4(C)
(as such schedule may be amended or supplemented from time to time). 4.6 Change in Name, Structure, etc. Except as set forth on Schedule
4(C) (as such schedule may be amended or supplemented from time to time), it
has not changed its name, 14




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jurisdiction of organization, chief executive office
or sole place of business or its corporate structure in any way (e.g., by
merger, consolidation, change in corporate form or otherwise) within the past
five (5) years. 4.7 Inventory and Equipment. On the date hereof, the Inventory and
the Equipment (other than mobile goods) are kept at the locations listed on
Schedule 5. 4.8 Farm Products. None of the Collateral constitutes, or is the
Proceeds of, Farm Products. 4.9 As-extracted collateral, etc. On the date hereof, it does not
own any as extracted collateral (as defined in the UCC) or any timber to be
cut. 4.10 No Actions or Consents. Other than the actions required to
register the Pledged Securities in the name of the Collateral Agent after an
Event of Default, all actions and consents, including all filings, notices,
registrations and recordings necessary or desirable for the exercise by the
Collateral Agent of the voting or other rights provided for in this Agreement
or the exercise of remedies respect of the Collateral have been made or
obtained. 4.11 No authorization. No authorization, approval or other action
by, and no notice to or filing with any Governmental Authority or regulatory
body is required for either (i) the pledge or grant by any Grantor of the Liens
purported to be created in favor of the Collateral Agent hereunder or (ii) the
exercise by Collateral Agent of any rights or remedies in respect of any
Collateral (whether specifically granted or created hereunder or created or
provided for by applicable law), except for filings contemplated by Section 4.3
above and as may be required, in connection with the disposition of any Pledged
Equity Interests, by laws generally affecting the offering and sale of
securities. 4.12 Pledged Securities. (a) The shares of Pledged Securities
pledged by such Grantor hereunder constitute (i) in the case of any Issuer
which is a Domestic Subsidiary or a Domestic Joint Venture, all the issued and
outstanding shares of all classes of the Capital Stock of such Issuer owned by
such Grantor, (ii) in the case of any Issuer which is a Foreign Subsidiary, 65%
of all the issued and outstanding shares of all classes of the Capital Stock of
such Issuer owned by such Grantor and (iii) in the case of any Issuer which is
a Foreign Joint Venture, all the issued and outstanding shares of all classes
of the Capital Stock of such Issuer owned by such Grantor. (b) All the shares of the Pledged Securities have been duly and validly
issued and are fully paid and nonassessable. (c) Such Grantor is the record and beneficial owner of, and has good and
marketable title to, the Pledged Securities pledged by it hereunder, free of
any and all Liens or options in favor of, or claims of, any other Person,
except the security interest created by this Agreement. (d) With respect to any Pledged Securities that is represented by a
certificate (other than any Pledged Securities credited to a Securities
Account) or that is an instrument, 15




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such Grantor shall deliver such
certificate or instrument to the Collateral Agent, indorsed in blank by an
effective indorsement (as defined in Section 8-107 of the UCC). 4.13 Accounts. (a) No amount payable to such Grantor under or in
connection with any Account is evidenced by any Instrument or Chattel Paper in
excess of $100,000 in the aggregate which has not been delivered to the
Collateral Agent. (b) The amounts represented by such Grantor to the Secured Parties from
time to time as owing to such Grantor in respect of the Accounts will at such
times be accurate. (c) The places where such Grantor keeps its records concerning such
Grantors Accounts are listed on Schedule 7 or such other location or locations
of which such Grantor shall have provided prior written notice to the
Collateral Agent pursuant to Section 5.6. 4.14 Intellectual Property. (a) Schedule 6 lists all material registered Intellectual Property
owned and currently used by such Grantor on the date hereof. (b) On the date hereof, all material registered U.S. Intellectual
Property is valid, subsisting, unexpired and enforceable, has not been
abandoned and to such Grantors knowledge and as used in connection with the
business of such Grantor, and, except as set forth in Schedule 6, does not
infringe the intellectual property rights of any other Person. (c) Except as set forth in Schedule 6, on the date hereof, none of the
Intellectual Property is the subject of any licensing or franchise agreement
pursuant to which such Grantor is the licensor or franchisor. (d) No holding, decision or judgment has been rendered by any
Governmental Authority which would limit, cancel or question the validity of,
or such Grantors rights in, any Intellectual Property in any respect that
could reasonably be expected to have a Material Adverse Effect. (e) Except as set forth in Schedule 4.9 to the Credit Agreement, no
action or proceeding is pending, or, to the knowledge of such Grantor,
threatened, on the date hereof (i) seeking to limit, cancel or question the
validity of any Intellectual Property or such Grantors ownership interest
therein, or (ii) which, if adversely determined, would have a material adverse
effect on the value of any Intellectual Property. 4.15 Investment Accounts. (a) Schedule 9 (as such schedule may be
amended or supplemented from time to time) sets forth under the headings
Commodities Accounts, Deposit Accounts and Securities Accounts,
respectively, all of the Commodities Accounts, Deposit Accounts and Securities
Accounts in which each Grantor has an interest. Each Grantor is the sole
entitlement holder (in the case of Commodities Accounts and Securities
Accounts) and sole account holder (in the case of Deposit Accounts), and such
Grantor has not consented to, and is not otherwise aware of, any Person (other
the Collateral Agent pursuant hereto) (i) having control (within the meanings
of Sections 8-106 and 9-106 of the UCC) over, or any other interest in, any
such Securities Account or Commodity Account or securities or other property
credited thereto or (ii) having control (within the meanings of Section 9-104
of the 16




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UCC) over, or any other interest in, any such Deposit Account or any
money or other property deposited therein. (b) Each Grantor has taken all actions necessary or desirable to comply
with Section 6.10(e) of the Credit Agreement. 4.16
Commercial Tort Claims. Schedule 10 (as such schedule may be
amended or supplemented from time to time) sets forth all Commercial
Tort Claims of each Grantor on the date hereof in excess of
$1,000,000 in the aggregate. 4.17 Pledged Debt. Schedule 11 (as such schedule may be amended or supplemented from time
to time) lists all Pledged Debt of such Grantor on the date hereof other than
Pledged Notes. 4.18 Letter of Credit Rights. Schedule 12 (as such schedule may be
amended or supplemented from time to time) lists all material letters of credit
to which such Grantor has rights on the date hereof. Each Grantor has obtained
the consent of each issuer of any material letter of credit to the assignment
of the proceeds of the letter of credit to the Collateral Agent. SECTION 5. COVENANTS Each Grantor covenants and agrees with the Collateral Agent and the
Secured Parties that, from and after the date of this Agreement until the
Borrower Obligations shall have been paid in full, no Letter of Credit shall be
outstanding and the Commitments shall have terminated: 5.1 Covenants in Credit Agreement. In the case of each Guarantor,
such Guarantor shall take, or shall refrain from taking, as the case may be,
each action that is necessary to be taken or not taken, as the case may be, so
that no Default or Event of Default is caused by the failure to take such
action or to refrain from taking such action by such Guarantor or any of its
Restricted Subsidiaries. 5.2 Delivery of Instruments and Chattel Paper. If any amount payable
under or in connection with any of the Collateral shall be or become evidenced
by any Instrument or Chattel Paper having a value in excess of $100,000 in the
aggregate, such Instrument or Chattel Paper shall be immediately delivered to
the Collateral Agent, duly indorsed in a manner satisfactory to the Collateral
Agent, to be held as Collateral pursuant to this Agreement. 5.3 Maintenance of Insurance. (a) Such Grantor will maintain, with
financially sound and reputable companies, insurance policies (i) insuring the
Inventory and Equipment against loss by fire, explosion, theft and such other
casualties as may be reasonably satisfactory to the Collateral Agent and (ii)
to the extent requested by the Collateral Agent, insuring such Grantor, the
Collateral Agent and the Secured Parties against liability for personal injury
and property damage relating to such Inventory and Equipment, such policies to
be in such form and amounts and having such coverage as may be reasonably
satisfactory to the Collateral Agent and the Secured Parties. 17




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(b) All such insurance shall (i) provide that the insurer affording such
coverage will endeavor to mail 30 days written notice to the Collateral Agent
in the event of cancellation of such coverage, (ii) name the Collateral Agent
as insured party or loss payee, (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) The Borrower shall deliver to the Collateral Agent and the Secured
Parties a certificate of coverage from a reputable insurance broker with
respect to such insurance during the month of January in each calendar year
beginning 2005 and such supplemental reports with respect thereto as the
Collateral Agent may from time to time reasonably request. 5.4 Maintenance of Perfected Security Interest; Further
Documentation. (a) Such Grantor shall maintain the security interest created
by this Agreement as a perfected security interest having at least the priority
described in Section 4.3 and shall defend such security interest against the
claims and demands of all Persons whomsoever. (b) Such Grantor will furnish to the Collateral Agent and the Secured
Parties from time to time statements and schedules further identifying and
describing the Collateral and such other reports in connection with the
Collateral as the Collateral Agent may reasonably request, all in reasonable
detail. (c) At any time and from time to time, upon the written request of the
Collateral Agent, and at the sole expense of such Grantor, such Grantor will
promptly and duly execute and deliver, and have recorded, or otherwise
authorize the filing of, such further instruments and documents and take such
further actions as the Collateral Agent may reasonably request for the purpose
of obtaining or preserving the full benefits of this Agreement and of the
rights and powers herein granted, including, without limitation, the filing of
any financing or continuation statements under the Uniform Commercial Code (or
other similar laws) in effect in any jurisdiction with respect to the security
interests created hereby. (d) Such Grantor shall not sell, transfer or assign (by operation of law
or otherwise) any Collateral except as permitted in accordance with the Credit
Agreement. 5.5 Changes in Locations, Name, etc. Such Grantor will not, except
upon 15 days prior written notice to the Collateral Agent and delivery to the
Collateral Agent of all additional financing statements and other documents
reasonably requested by the Collateral Agent to maintain the validity,
perfection and priority of the security interests provided for herein and (b)
if applicable, a written supplement to Schedule 5 showing any:  (i)
    
    change the location of its chief executive office or sole place of
business from that referred to in Section 4.4; or(ii)
    
    change its name, identity or type of organization or
jurisdiction of organization corporate structure to such an extent that
any financing statement filed by the Collateral Agent in connection with
this Agreement would become misleading. 5.6 Notices. Such Grantor will advise the Collateral Agent and the
Secured Parties promptly, in reasonable detail, of: 18




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(a) any Lien (other than security interests created hereby, by any Loan
Document or Liens permitted under the Credit Agreement) on any of the
Collateral which would adversely affect the ability of the Collateral Agent to
exercise any of its remedies hereunder; and (b) of the occurrence of any other event which could reasonably be
expected to have a material adverse effect on the aggregate value of the
Collateral or on the security interests created hereby. 5.7 Pledged Securities. (a) If such Grantor shall become entitled
to receive or shall receive any certificate (including, without limitation, any
certificate representing a stock dividend or a distribution in connection with
any reclassification, increase or reduction of capital or any certificate
issued in connection with any reorganization), option or rights in respect of
the Pledged Securities of any Issuer, whether in addition to, in substitution
of, as a conversion of, or in exchange for, any shares of the Pledged
Securities, or otherwise in respect thereof, such Grantor shall accept the same
as the agent of the Collateral Agent and the Secured Parties, hold the same in
trust for the Collateral Agent and the Secured Parties and deliver the same
forthwith to the Collateral Agent in the exact form received, duly indorsed by
such Grantor to the Collateral Agent, if required, together with an undated
stock power covering such certificate duly executed in blank by such Grantor
and with, if the Collateral Agent so requests, signature guaranteed, to be held
by the Collateral Agent, subject to the terms hereof, as additional collateral
security for the Obligations. Any sums paid upon or in respect of the Pledged
Securities upon the liquidation or dissolution of any Issuer shall be paid over
to the Collateral Agent to be held by it hereunder as additional collateral
security for the Obligations, and in case any distribution of capital shall be
made on or in respect of the Pledged Securities or any property shall be
distributed upon or with respect to the Pledged Securities pursuant to the
recapitalization or reclassification of the capital of any Issuer or pursuant
to the reorganization thereof, the property so distributed shall, unless
otherwise subject to a perfected security interest in favor of the Collateral
Agent, be delivered to the Collateral Agent to be held by it hereunder as
additional collateral security for the Obligations. If any sums of money or
property so paid or distributed in respect of the Pledged Securities shall be
received by such Grantor, such Grantor shall, until such money or property is
paid or delivered to the Collateral Agent, hold such money or property in trust
for the Secured Parties, segregated from other funds of such Grantor, as
additional collateral security for the Obligations. (b) Without the prior written consent of the Collateral Agent, such
Grantor will not (i) unless otherwise permitted hereby, vote to enable, or take
any other action to permit, any Issuer to issue any stock or other equity
securities of any nature or to issue any other securities convertible into or
granting the right to purchase or exchange for any stock or other equity
securities of any nature of any Issuer, (ii) sell, assign, transfer, exchange,
or otherwise dispose of, or grant any option with respect to, the Pledged
Securities or Proceeds thereof (except pursuant to a transaction expressly
permitted by the Credit Agreement), (iii) create, incur or permit to exist any
Lien or option in favor of, or any claim of any Person with respect to, any of
the Pledged Securities or Proceeds thereof, or any interest therein, except for
the security interests created by this Agreement or (iv) enter into any
agreement or undertaking restricting the right or
ability of such Grantor or the Collateral Agent to sell, assign or
transfer any of the Pledged Securities or Proceeds thereof. 19




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(c) In the case of each Grantor which is an Issuer, such Issuer agrees
that (i) it will be bound by the terms of this Agreement relating to the
Pledged Securities issued by it and will comply with such terms insofar as such
terms are applicable to it, (ii) it will notify the Collateral Agent promptly
in writing of the occurrence of any of the events described in Section 5.7(a)
with respect to the Pledged Securities issued by it and (iii) the terms of
Sections 6.3(c) and 6.7 shall apply to it, mutatis mutandis, with respect to
all actions that may be required of it pursuant to Section 6.3(c) or 6.7 with
respect to the Pledged Securities issued by it. (d) Such Grantor will not cause or consent to any amendment or
modification of or waiver under the Danish Demand Note or the Danish Pledge
Agreement without the prior written approval of the Required Secured Parties.
DPC Investment will promptly forward to the Collateral Agent any notice or
other communication delivered pursuant to the Danish Demand Note or the Danish
Pledge Agreement. (e) Such Grantor shall deliver to Collateral Agent immediately upon
acquiring rights therein hereafter any Pledged Securities that is represented
by a certificate or that is an instrument (other than any Investment
Related Property credited to a Securities Account), indorsed in blank by an
effective indorsement (as defined in Section 8-107 of the UCC). 5.8 Accounts. (a) Other than in the ordinary course of business
consistent with its past practice, such Grantor will not (i) grant any
extension of the time of payment of any Account, (ii) compromise or settle any
Account for less than the full amount thereof, (iii) release, wholly or
partially, any Person liable for the payment of any Account, (iv) allow any
credit or discount whatsoever on any Account or (v) amend, supplement or modify
any Account in any manner that could materially and adversely affect the value
thereof. (b) Such Grantor will deliver to the Collateral Agent a copy of each
material demand, notice or document received by it that questions or calls into
doubt the validity or enforceability of more than 10% of the aggregate amount
of the then outstanding Accounts. 5.9 Intellectual Property. (a) Such Grantor (either itself or
through licensees) will, except where the failure to do so could not reasonably
be expected to have a Material Adverse Effect, (i) continue to use each
material registered Trademark on each and every trademark class of goods
applicable to its current line as reflected in its current catalogs, brochures
and price lists in order to maintain such Trademark in full force free from any
claim of abandonment for non-use, (ii) maintain as in the past the quality of
products and services offered under such Trademark, (iii) use such Trademark
with the appropriate notice of registration and all other notices and legends
required by applicable Requirements of Law, (iv) not adopt or use any mark
which is confusingly similar or a colorable imitation of such Trademark unless
the Collateral Agent, for the ratable benefit of the Secured Parties, shall
obtain a perfected security interest in such mark pursuant to this Agreement,
and (v) not (and not permit any licensee or sublicensee thereof to) do any act
or knowingly omit to do any act whereby such Trademark may become invalidated
or impaired in any way. (b) Such Grantor (either itself or through licensees) will not do any
act, or omit to do any act, whereby any material Patent may become forfeited,
abandoned or dedicated to the public. 20




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(c) Notwithstanding anything to the contrary, any breach of clauses (a)
or (b) of this Section 5.9 by a licensee shall not be a breach by any Grantor
if the terms of the license granted to such licensee prohibit or require the
licensee to abide by the acts set forth therein and such Grantor is diligently
taking all reasonable action to cause such licensee to comply with the terms of
such licensee. (d) Such Grantor will notify the Collateral Agent and the Secured Parties
immediately if it knows, or has reason to know, that any application or
registration relating to any material Intellectual Property may become
forfeited, abandoned or dedicated to the public, or of any adverse
determination or development (including, without limitation, the institution
of, or any such determination or development in, any proceeding in the United
States Patent and Trademark Office, the United States Copyright Office or any
court or tribunal in any country) regarding such Grantors ownership of, or the
validity of, any material Intellectual Property or such Grantors right to
register the same or to own and maintain the same. (e) Whenever such Grantor, either by itself or through any agent,
employee, licensee or designee, shall file an application for the registration
of any Intellectual Property with the United States Patent and Trademark
Office, the United States Copyright Office or any similar office or agency in
any other country or any political subdivision thereof, such Grantor shall
report such filing to the Collateral Agent within five Business Days after the
last day of the fiscal quarter in which such filing occurs. Upon request of
the Collateral Agent, such Grantor shall execute and deliver, and have
recorded, any and all agreements, instruments, documents, and papers as the
Collateral Agent may request to evidence the Collateral Agents and the Secured
Parties security interest in any Copyright, Patent or Trademark and the
goodwill and general intangibles of such Grantor relating thereto or
represented thereby (including, but not limited to Trademark Security
Agreements, Copyright Security Agreements and Patent Security Agreements in the
Form of Exhibits A, B, & C, respectively). 5.10 Investment Accounts. With respect to any Commodities Accounts,
Securities Accounts or Deposit Accounts that are created or acquired after the
Effective Date, as of or prior to the deposit or transfer of any commodity
contract, securities entitlements or funds, into such Commodities Accounts,
Securities Accounts or Deposit Accounts, respectively, unless otherwise in
accordance with Section 6.10(e) of the Credit Agreement, such Grantor shall
have established the Collateral Agents control (within the meaning of
Section 9-106 of the UCC in the case of Commodities Accounts, Section 8-106 of
the UCC in the case of Securities Accounts or Section 9-104 of the UCC in the
case of Deposit Accounts) over all such Investment Accounts. 5.11 Commercial Tort Claims. With respect to any Commercial Tort Claims in excess of $1,000,000 in
the aggregate hereafter arising, it shall amend Schedule 10 identifying such
new Commercial Tort Claims. 5.12 Letter of Credit Rights. With respect to any material letter
of credit hereafter arising, such Grantor shall obtain the consent of the
issuer thereof to the assignment of the proceeds of the letter of credit to the
Collateral Agent. 21




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5.13 Covenants of Holdings. Holdings covenants and agrees with the
Collateral Agent and the Secured Parties that, from and after the date of this
Agreement until the Loans, any Reimbursement Obligations, and all other
Borrower Obligations then due and owing have been paid in full, no Letter of
Credit shall be outstanding and the Commitments shall have terminated: (a) Holdings shall not conduct or otherwise engage in any business or
operations other than (i) transactions contemplated by the Loan Documents or
the provision of administrative, legal, accounting and management services to
or on behalf of the Borrower or any of its Subsidiaries, (ii) the ownership of
the Capital Stock of the Borrower or any other Person (or any successor
thereto), and the exercise of rights and performance of obligations (including
entering into guarantees and pledge agreements) in connection therewith, (iii)
the entry into, and exercise of rights and performance of obligations in
respect of, (A) the Transaction Documents to which Holdings is a party, this
Agreement and the other Loan Documents to which Holdings is a party, and any
other agreement to which Holdings is a party on the date hereof, in each case
as amended, supplemented, waived or otherwise modified from time to time, and
any refinancings, refundings, renewals or extensions thereof, (B) contracts and
agreements with officers, directors and employees of the Holdings or a
Subsidiary thereof relating to their employment or directorships, (C) insurance
policies and related contracts and agreements, and (D) equity subscription
agreements, registration rights agreements, voting and other stockholder
agreements, engagement letters, underwriting agreements and other agreements in
respect of its equity securities or any offering, issuance or sale thereof,
(iv) the offering, issuance and sale of its equity securities, (v) the filing
of registration statements, and compliance with applicable reporting and other
obligations, under federal, state or other securities laws, (vi) the listing of
its equity securities and compliance with applicable reporting and other
obligations in connection therewith, (vii) the retention of transfer agents,
private placement agents, underwriters, counsel, accountants and other advisors
and consultants, (viii) the performance of obligations under and compliance
with its certificate of incorporation and by-laws, or any applicable law,
ordinance, regulation, rule, order, judgment, decree or permit, including,
without limitation, as a result of or in connection with the activities of the
Borrower and its Subsidiaries, (ix) the incurrence and payment of its operating
and business expenses and any taxes for which it may be liable, and (x) other
activities incidental or related to the foregoing. (b) Holdings shall not own, lease, manage or otherwise operate any
properties or assets (other than in connection with the activities described in
Section 5.13(a)), or incur, create, assume or suffer to exist any Indebtedness
or Guarantee Obligations of Holdings (other than such
as may be incurred, created or assumed or exist in connection with the
activities described in Section 5.10(a)). SECTION 6. REMEDIAL PROVISIONS 6.1 Certain Matters Relating to Accounts. (a) At any time and from
time to time after the occurrence and during the continuance of an Event of
Default, the Collateral Agent shall have the right to make test verifications
of the Accounts in any manner and through any medium that it reasonably
considers advisable, and the relevant Grantor shall furnish all such assistance
and information as the Collateral Agent may reasonably require in connection
with such test verifications. At any time and from time to time after the
occurrence and during the 22




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continuance of an Event of Default, upon the
Collateral Agents reasonable request and at the expense of the relevant
Grantor, such Grantor shall cause independent public accountants or others
reasonably satisfactory to the Collateral Agent to furnish to the Collateral
Agent reports showing reconciliations, aging and test verifications of, and
trial balances for, the Accounts. (b) The Collateral Agent hereby authorizes each Grantor to collect such
Grantors Accounts and the Collateral Agent may curtail or terminate said
authority at any time after the occurrence and during the continuance of an
Event of Default. If required by the Collateral Agent at any time after the
occurrence and during the continuance of an Event of Default, any Proceeds
constituting collections of such Accounts, when collected by such Grantor, (i)
shall be forthwith (and, in any event, within two Business Days) deposited by
such Grantor in the exact form received, duly indorsed by such Grantor to the
Collateral Agent if required, in the Concentration Account established by such
Grantor maintained under the sole dominion and control of the Collateral Agent,
subject to withdrawal by the Collateral Agent for the account of the Secured
Parties only as provided in Section 6.5, and (ii) until so turned over, shall
be held by such Grantor in trust for the Collateral Agent and the other Secured
Parties, segregated from other funds of such Grantor. All Proceeds
constituting collections of Accounts while held by the Concentration Account
bank (or by any Guarantor in trust for the benefit of the Collateral Agent and
the other Secured Parties) shall continue to be collateral security for all of
the Obligations and shall not constitute payment thereof until applied as
hereinafter provided. At any time when an Event of Default has occurred and is
continuing, at the Collateral Agents election, the Collateral Agent may apply
all or any part of the funds on deposit in the Concentration Account
established by the relevant Grantor to the payment of the Obligations of such
Grantor then due and owing, such application to be made as set forth in Section
6.5. (c) At any time and from time to time after the occurrence and during the
continuance of an Event of Default, at the Collateral Agents request, each
Grantor shall deliver to the Collateral Agent all Instruments and Chattel Paper
evidencing any Accounts not otherwise in the possession of the Collateral Agent
and all original and other documents evidencing, and relating to, the
agreements and transactions which gave rise to such Grantors Accounts,
including, without limitation, all original orders, invoices and shipping
receipts. 6.2 Communications with Obligors; Grantors Remain Liable. (a) The Collateral Agent in its own name or in the name of others may
at any time after the occurrence and during the continuance of an Event of
Default, communicate with obligors under the Accounts to verify with them to
the Collateral Agents satisfaction the existence, amount and terms of any
Accounts. (b) Upon the request of the Collateral Agent at any time after the
occurrence and during the continuance of an Event of Default, each Grantor
shall notify obligors on the Accounts that the Accounts have been assigned to
the Collateral Agent for the ratable benefit of the Secured Parties and that
payments in respect thereof shall be made directly to the Collateral Agent. (c) Anything herein to the contrary notwithstanding, each Grantor shall
remain liable under each of the Accounts to observe and perform all the
material conditions and obligations to be observed and performed by it
thereunder, all in accordance with the terms of 23




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any agreement giving rise
thereto. Neither the Collateral Agent nor any Secured Party shall have any
obligation or liability under any Account (or any agreement giving rise
thereto) by reason of or arising out of this Agreement or the receipt by the
Collateral Agent or any Secured Party of any payment relating thereto, nor
shall the Collateral Agent or any Secured Party be obligated in any manner to
perform any of the obligations of any Grantor under or pursuant to any Account
(or any agreement giving rise thereto), to make any payment, to make any
inquiry as to the nature or the sufficiency of any payment received by it or as
to the sufficiency of any performance by any party thereunder, to present or
file any claim, to take any action to enforce any performance or to collect the
payment of any amounts which may have been assigned to it or to which it may be
entitled at any time or times. 6.3 Pledged Securities. (a) Unless an Event of Default shall have
occurred and be continuing and the Collateral Agent shall have given notice to
the relevant Grantor of the Collateral Agents intent to exercise its
corresponding rights pursuant to Section 6.3(b), each Grantor shall be
permitted to receive all cash dividends paid in respect of the Pledged Stock
and all payments made in respect of the Pledged Notes, in each case paid in the
normal course of business of the relevant Issuer and consistent with past
practice, to the extent permitted in the Credit Agreement, and to exercise all
voting and corporate rights with respect to the Pledged Securities. (b) If an Event of Default shall occur and be continuing and the
Collateral Agent shall give notice of its intent to exercise such rights to the
relevant Grantor or Grantors, (i) the Collateral Agent shall have the right to
receive any and all cash dividends, payments or other Proceeds paid in respect
of the Pledged Securities and make application thereof to the Obligations in
such order as the Collateral Agent may determine in accordance with the Loan
Documents, and (ii) any or all of the Pledged Securities shall be registered in
the name of the Collateral Agent or its nominee, and the Collateral Agent or
its nominee may thereafter exercise (x) all voting, corporate and other rights
pertaining to such Pledged Securities at any meeting of shareholders of the
relevant Issuer or Issuers or otherwise and (y) any and all rights of
conversion, exchange and subscription and any other rights, privileges or
options pertaining to such Pledged Securities as if it were the absolute owner
thereof (including, without limitation, the right to exchange at its discretion
any and all of the Pledged Securities upon the merger,
consolidation, reorganization, recapitalization or other fundamental
change in the corporate structure of any Issuer, or upon the exercise by any
Grantor or the Collateral Agent of any right, privilege or option pertaining to
such Pledged Securities, and in connection therewith, the right to deposit and
deliver any and all of the Pledged Securities with any committee, depositary,
transfer agent, registrar or other designated agency upon such terms and
conditions as the Collateral Agent may determine), all without liability except
to account for property actually received by it, but the Collateral Agent shall
have no duty to any Grantor to exercise any such right, privilege or option and
shall not be responsible for any failure to do so or delay in so doing.
Without limiting the foregoing, with respect to the Danish Demand Note and the
Danish Pledge Agreement the Collateral Agent shall have the right to exercise
all rights and remedies of DPC Investment thereunder if an Event of Default
shall occur and be continuing and the Collateral Agent shall give notice of its
intent to exercise such rights to the relevant Grantor or Grantors. 24




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(c) Each Grantor hereby authorizes and instructs each Issuer of any
Pledged Securities pledged by such Grantor hereunder to (i) comply with any
instruction received by it from the Collateral Agent in writing that (x) states
that an Event of Default has occurred and is continuing and (y) is otherwise in
accordance with the terms of this Agreement, without any other or further
instructions from such Grantor, and each Grantor agrees that each Issuer shall
be fully protected in so complying, and (ii) unless otherwise expressly
permitted hereby, pay any dividends or other payments with respect to the
Pledged Securities directly to the Collateral Agent. 6.4 Proceeds to be Turned Over To Collateral Agent. In addition to
the rights of the Collateral Agent and the Secured Parties specified in Section
6.1 with respect to payments of Accounts, if an Event of Default shall occur
and be continuing, and the Collateral Agent shall have sent a written direction
to the Borrower directing it to do so, all Proceeds received by any Grantor
consisting of cash, checks and other near-cash items shall be held by such
Grantor in trust for the Collateral Agent and the Secured Parties and shall,
forthwith upon receipt by such Grantor, be turned over to the Collateral Agent
in the exact form received by such Grantor (duly indorsed by such Grantor to
the Collateral Agent, if required). All Proceeds received by the Collateral
Agent hereunder shall be held by the Collateral Agent in a Concentration
Account maintained under its sole dominion and control. All Proceeds while
held by the Collateral Agent in a Concentration Account (or by such Grantor in
trust for the Collateral Agent and the Secured Parties) shall continue to be
held as collateral security for all the Obligations and shall not constitute
payment thereof until applied as provided in Section 6.5. 6.5 Application of Proceeds. So long as no Event of Default shall
have occurred and be continuing, at such intervals as may be agreed upon by the
Borrower and the Collateral Agent, at any time at the Collateral Agents
election, the Collateral Agent may apply all or any part of Proceeds held in
any Concentration Account in payment of the Obligations in such order as the
Collateral Agent may elect, and any part of such funds which the Collateral
Agent elects not so to apply and deems not required as collateral security for
the Obligations shall be paid over from time to time by the Collateral Agent to the Borrower or to whomsoever may be lawfully
entitled to receive the same. After an Event of Default shall have occurred
and be continuing, except as expressly provided elsewhere in the Loan
Documents, all Proceeds received by the Collateral Agent in respect of any
sale, any collection from, or other realization upon all or any part of the
Collateral shall be applied in full or in part by the Collateral Agent against,
the Obligations in the following order of priority: first, to repay Revolving
Loans and Swingline Loans that have been advanced by the Administrative Agent
or the Swingline Lender, respectively, and to reimburse the Issuing Bank for
draws on Letters of Credit, in each case to the extent not paid or reimbursed
by the Company or the Lenders; second, to the payment of all costs and expenses
of such sale, collection or other realization, including reasonable
compensation to the Collateral Agent and its agents and counsel, and all other
expenses, liabilities and advances made or incurred by the Collateral Agent in
connection therewith, and all amounts for which the Collateral Agent is
entitled to indemnification hereunder (in its capacity as the Collateral Agent
and not as a Lender) and all advances made by the Collateral Agent hereunder
for the account of the applicable Grantor, and to the payment of all costs and
expenses paid or incurred by the Collateral Agent in connection with the
exercise of any right or remedy hereunder or under any other Loan Document, all
in accordance with the terms hereof or thereof; third, to the extent of any
excess of such proceeds, to the payment of all other Obligations for the 25




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ratable benefit of the Secured Parties; and fourth, to the extent of any excess
of such proceeds, to the payment to or upon the order of such Grantor or to
whosoever may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct. 6.6 Code and Other Remedies. If an Event of Default shall occur and
be continuing, the Collateral Agent, on behalf of the Secured Parties, may
exercise, in addition to all other rights and remedies granted to them in this
Agreement and in any other instrument or agreement securing, evidencing or
relating to the Obligations, all rights and remedies of a secured party under
the New York UCC or any other applicable law. Without limiting the generality
of the foregoing, the Collateral Agent, without demand of performance or other
demand, presentment, protest, advertisement or notice of any kind (except any
notice required by law referred to below) to or upon any Grantor or any other
Person (all and each of which demands, defenses, advertisements and notices are
hereby waived), may in such circumstances forthwith collect, receive,
appropriate and realize upon the Collateral, or any part thereof, and/or may
forthwith sell, lease, assign, give option or options to purchase, or otherwise
dispose of and deliver the Collateral or any part thereof (or contract to do
any of the foregoing), in one or more parcels at public or private sale or
sales, at any exchange, brokers board or office of the Collateral Agent or any
Secured Party or elsewhere upon such terms and conditions as it may deem
advisable and at such prices as it may deem best, for cash or on credit or for
future delivery without assumption of any credit risk. The Collateral Agent or
any Secured Party shall have the right upon any such public sale or sales, and,
to the extent permitted by law, upon any such private sale or sales, to
purchase the whole or any part of the Collateral so sold, free of any right or
equity of redemption in any Grantor, which right or equity is hereby waived and
released. Each Grantor further agrees, at the Collateral Agents request, to
assemble the Collateral and make it available to the Collateral Agent at places
which the Collateral Agent shall reasonably select, whether at such Grantors
premises or elsewhere. The Collateral Agent shall apply the net proceeds of
any action taken by it pursuant to this Section 6.6 in accordance with Section
6.5 of this Agreement To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may
acquire against the Collateral Agent or any Secured Party arising out of the
exercise by them of any rights hereunder. If any notice of a proposed sale or
other disposition of Collateral shall be required by law, such notice shall be
deemed reasonable and proper if given at least 10 days before such sale or
other disposition. 6.7 Registration Rights. (a) If the Collateral Agent shall
determine to exercise its right to sell any or all of the Pledged Stock
pursuant to Section 6.6, and if in the opinion of the Collateral Agent it is
necessary or advisable to have the Pledged Stock, or that portion thereof to be
sold, registered under the provisions of the Securities Act, the relevant
Grantor will cause the Issuer thereof to (i) execute and deliver, and cause the
directors and officers of such Issuer to execute and deliver, all such
instruments and documents, and do or cause to be done all such other acts as
may be, in the opinion of the Collateral Agent, necessary or advisable to
register the Pledged Stock, or that portion thereof to be sold, under the
provisions of the Securities Act, (ii) use its best efforts to cause the
registration statement relating thereto to become effective and to remain
effective for a period of one year from the date of the first public offering
of the Pledged Stock, or that portion thereof to be sold, and (iii) make all
amendments thereto and/or to the related prospectus which, in the opinion of
the Collateral Agent, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto. Each Grantor agrees to
cause such 26




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Issuer to comply with the provisions of the securities or Blue Sky
laws of any and all jurisdictions which the Collateral Agent shall designate
and to make available to its security holders, as soon as practicable, an
earnings statement (which need not be audited) which will satisfy the
provisions of Section 11(a) of the Securities Act. (b) Each Grantor recognizes that the Collateral Agent may be unable to
effect a public sale of any or all the Pledged Stock, by reason of certain
prohibitions contained in the Securities Act and applicable state securities
laws or otherwise, and may be compelled to resort to one or more private sales
thereof to a restricted group of purchasers which will be obliged to agree,
among other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale thereof. Each
Grantor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Collateral
Agent shall be under no obligation to delay a sale of any of the Pledged Stock
for the period of time necessary to permit the Issuer thereof to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if such Issuer would agree to do so. (c) Each Grantor agrees to use its best efforts to do or cause to be done
all such other acts as may be necessary to make such sale or sales of all or
any portion of the Pledged Stock pursuant to this Section 6.7 valid and binding
and in compliance with any and all other applicable Requirements of Law. Each
Grantor further agrees that a breach of any of the covenants contained in this
Section 6.7 will cause irreparable injury to the Collateral Agent and the
Secured Parties, that the Collateral Agent and the Secured Parties have no
adequate remedy at law in respect of such breach and, as a consequence, that
each and every covenant contained in this Section 6.7 shall be specifically enforceable against such Grantor,
and such Grantor hereby waives and agrees not to assert any defenses against an
action for specific performance of such covenants except for a defense that no
Event of Default has occurred under the Credit Agreement. 6.8 Deficiency. Each Grantor shall remain liable for any deficiency
if the proceeds of any sale or other disposition of the Collateral are
insufficient to pay its Obligations and the fees and disbursements of any
attorneys employed by the Collateral Agent or any Secured Party to collect such
deficiency. SECTION 7. THE COLLATERAL AGENT 7.1 Collateral Agents Appointment as Attorney-in-Fact, etc. (a)
Each Grantor hereby irrevocably constitutes and appoints the Collateral Agent
and any officer or agent thereof, with full power of substitution, as its true
and lawful attorney-in-fact with full irrevocable power and authority in the
place and stead of such Grantor and in the name of such Grantor or in its own
name, for the purpose of carrying out the terms of this Agreement, to take any
and all reasonably appropriate action and to execute any and all documents and
instruments which may be reasonably necessary or desirable to accomplish the
purposes of this Agreement, and, without limiting the generality of the
foregoing, each Grantor hereby gives the Collateral Agent the power and right,
on behalf of such Grantor, without notice to or assent by such Grantor, to do
any or all of the following: 27




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(i) in the name of such Grantor or its own name, or otherwise, take
possession of and indorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under any
Account or with respect to any other Collateral and file any claim or
take any other action or proceeding in any court of law or equity or
otherwise deemed appropriate by the Collateral Agent for the purpose of
collecting any and all such moneys due under any Account or with respect
to any other Collateral whenever payable; (ii) in the case of any Intellectual Property, execute and deliver,
and have recorded, any and all agreements, instruments, documents and
papers as the Collateral Agent may request to evidence the Collateral
Agents and the Secured Parties security interest in such Intellectual
Property and the goodwill and general intangibles of such Grantor
relating thereto or represented thereby; (iii) unless being disputed under Section 6.3 of the Credit
Agreement, pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral, effect any repairs or any insurance
called for by the terms of this Agreement and pay all or any part of the
premiums therefor and the costs thereof; (iv) execute, in connection with any sale provided for in Section
6.6 or 6.7, any indorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral; and (v) (i) direct any party liable for any payment under any of the
Collateral to make payment of any and all moneys due or to become due
thereunder directly to the Collateral Agent or as the Collateral Agent
shall direct; (ii) ask or demand for, collect, and receive payment of and
receipt for, any and all moneys, claims and other amounts due or to
become due at any time in respect of or arising out of any Collateral;
(iii) sign and indorse any invoices, freight or express bills, bills of
lading, storage or warehouse receipts, drafts against debtors,
assignments, verifications, notices and other documents in connection
with any of the Collateral; (iv) commence and prosecute any suits,
actions or proceedings at law or in equity in any court of competent
jurisdiction to collect the Collateral or any portion thereof and to
enforce any other right in respect of any Collateral; (v) defend any
suit, action or proceeding brought against such Grantor with respect to
any Collateral; (vi) settle, compromise or adjust any such suit, action
or proceeding and, in connection therewith, give such discharges or
releases as the Collateral Agent may deem appropriate; (vii) assign any
Copyright, Patent or Trademark (along with the goodwill of the business
to which any such Copyright, Patent or Trademark pertains), throughout
the world for such term or terms, on such conditions, and in such manner,
as the Collateral Agent shall in its sole discretion determine; and
(viii) generally, sell, transfer, pledge and make any agreement with
respect to or otherwise deal with any of the Collateral as fully and
completely as though the Collateral Agent were the absolute owner thereof
for all purposes, and do, at the Collateral Agents option and such
Grantors expense, at any time, or from time to time, all acts and things
which the Collateral Agent deems necessary to protect, preserve or
realize upon the Collateral and the Collateral Agents and the Secured
Parties security interests therein 28




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and to effect the intent of this
Agreement, all as fully and effectively as such Grantor might do. Anything in this Section 7.1(a) to the contrary notwithstanding, the
Collateral Agent agrees that it will not exercise any rights under the power of
attorney provided for in this Section 7.1(a) unless an Event of Default shall
have occurred and be continuing. (b) If any Grantor fails to perform or comply with any of its agreements
contained herein within the applicable grace periods, the Collateral Agent, at
its option, but without any obligation so to do, may perform or comply, or
otherwise cause performance or compliance, with such agreement. (c) The expenses of the Collateral Agent incurred in connection with
actions undertaken as provided in this Section 7.1, together with interest
thereon at a rate per annum equal to the rate per annum at which interest would
then be payable on past due ABR Loans under the Credit Agreement, from the date
of payment by the Collateral Agent to the date reimbursed by the relevant
Grantor, shall be payable by such Grantor to the Collateral Agent on demand. (d) Each Grantor hereby ratifies all that said attorneys shall lawfully
do or cause to be done by virtue hereof. All powers, authorizations and
agencies contained in this Agreement are coupled with an interest and are
irrevocable until this Agreement is terminated and the security interests
created hereby are released. 7.2 Duty of Collateral Agent. The Collateral Agents sole duty with
respect to the custody, safekeeping and physical preservation of the Collateral
in its possession, under Section 9-207 of the New York UCC or otherwise, shall
be to deal with it in the same manner as the Collateral Agent deals with
similar property for its own account. Neither the Collateral Agent, any
Secured Party nor any of their respective officers, directors, employees or
agents shall be liable for failure to demand, collect or realize upon any of
the Collateral or for any delay in doing so or shall be under any obligation to
sell or otherwise dispose of any Collateral upon the request of any Grantor or
any other Person or to take any other action whatsoever with regard to the
Collateral or any part thereof. The powers conferred on the Collateral Agent
and the Secured Parties hereunder are solely to protect the Collateral Agents
and the Secured Parties interests in the Collateral and shall not impose any
duty upon the Collateral Agent or any Secured Party to exercise any such
powers. The Collateral Agent and the Secured Parties shall be accountable only
for amounts that they actually receive as a result of the exercise of such
powers, and neither they nor any of their officers, directors, employees or
agents shall be responsible to any Grantor for any act or failure to act
hereunder, except for their own gross negligence or willful misconduct. 7.3 Filing of Financing Statements. Pursuant to Section 9-509 of the
New York UCC and any other applicable law, each Grantor authorizes the
Collateral Agent to file or record financing statements and other filing or
recording documents or instruments with respect to the Collateral without the
signature of such Grantor in such form and in such offices as the Collateral
Agent reasonably determines appropriate to perfect the security interests of
the Collateral Agent under this Agreement. 29




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7.4 Authority of Collateral Agent. Each Grantor acknowledges that
the rights and responsibilities of the Collateral Agent under this Agreement
with respect to any action taken by the Collateral Agent or the exercise or
non-exercise by the Collateral Agent of any option, voting right, request,
judgment or other right or remedy provided for herein or resulting or arising
out of this Agreement shall, as between the Collateral Agent and the Secured
Parties, be governed by the Credit Agreement and by such other agreements with
respect thereto as may exist from time to time among them, but, as between the
Collateral Agent and the Grantors, the Collateral Agent shall be conclusively
presumed to be acting as agent for the Secured Parties with full and valid
authority so to act or refrain from acting, and no Grantor shall be under any
obligation, or entitlement, to make any inquiry respecting such authority. SECTION 8. SECTION 8. MISCELLANEOUS 8.1 Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified except in
accordance with Section 10.1 of the Credit Agreement. 8.2 Notices. All notices, requests and demands to or upon the Collateral Agent or
any Grantor hereunder shall be effected in the manner provided for in Section
10.2 of the Credit Agreement; provided that any such notice, request or demand
to or upon any Guarantor shall be addressed to such Guarantor at its notice
address set forth on Schedule 1. 8.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the
Collateral Agent nor any Secured Party shall by any act (except by a written
instrument pursuant to Section 8.1), delay, indulgence, omission or otherwise
be deemed to have waived any right or remedy hereunder or to have acquiesced in
any Default or Event of Default. No failure to exercise, nor any delay in
exercising, on the part of the Collateral Agent or any Secured Party, any
right, power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Collateral Agent or any Secured
Party of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Collateral Agent or such
Secured Party would otherwise have on any future occasion. The rights and
remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any other rights or remedies provided by
law. 8.4 Enforcement Expenses; Indemnification. (a) Each Guarantor
agrees to pay or reimburse each Secured Party for all its costs and expenses
incurred in collecting against such Guarantor under the guarantee contained in
Section 2 or otherwise enforcing or preserving any rights under this Agreement
and the other Loan Documents to which such Guarantor is a party, including,
without limitation, the fees and disbursements of counsel (including the
allocated fees and expenses of in-house counsel) to each Secured Party. (b) Each Guarantor agrees to pay, and to save the Secured Parties
harmless from, any and all liabilities with respect to, or resulting from any
delay in paying, any and all stamp, excise, sales or other taxes which may be
payable or determined to be payable with respect to 30




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any of the Collateral or in
connection with any of the transactions contemplated by this Agreement. (c) Each Guarantor agrees to pay, and to save the Secured Parties
harmless from, any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement to the extent the Borrower
would be required to do so pursuant to Section 10.5 of the Credit Agreement. (d) The agreements in this Section 8.4 shall survive repayment of the
Obligations and all other amounts payable under the Credit Agreement and the
other Loan Documents. 8.5 Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of each Grantor and shall inure to the benefit of the
Secured Parties and their successors and assigns; provided that, except as set forth in Section 7.4 of the Credit Agreement,
no Grantor may assign, transfer or delegate any of its rights or obligations
under this Agreement without the prior written consent of the Collateral Agent. 8.6 Set-Off. Each Grantor hereby irrevocably authorizes each Secured
Party at any time and from time to time, without notice to such Grantor or any
other Grantor, any such notice being expressly waived by each Grantor, to
set-off and appropriate and apply any and all deposits (general or special,
time or demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Secured Party to or for the credit or the account of such
Grantor, or any part thereof in such amounts as such Secured Party may elect,
against and on account of the obligations and liabilities of such Grantor to
such Secured Party hereunder and claims of every nature and description of
such Secured Party against such Grantor, in any currency, whether arising
hereunder, under the Credit Agreement, any other Loan Document or otherwise, as
the Collateral Agent or such Secured Party may elect, whether or not any
Secured Party has made any demand for payment and although such obligations,
liabilities and claims may be contingent or unmatured. Each Secured Party
shall notify such Grantor promptly of any such set-off and the application made
by such Secured Party of the proceeds thereof, provided that the failure to
give such notice shall not affect the validity of such set-off and application.
The rights of each Secured Party under this Section 8.6 are in addition to
other rights and remedies (including, without limitation, other rights of
set-off) which such Secured Party may have. 8.7 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. 8.8 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. 31




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8.9 Section Headings. The Section headings used in this Agreement
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof. 8.10 Integration. This Agreement and the other Loan Documents represent the agreement of
the Grantors, the Collateral Agent and the other Secured Parties with respect
to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by the Collateral Agent or any
other Secured Party relative to subject matter hereof and thereof not expressly
set forth or referred to herein or in the other Loan Documents. 8.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. 8.12 Submission To Jurisdiction; Waivers. Each Grantor hereby
irrevocably and unconditionally: (a) submits for itself and its property in any legal action or proceeding
relating to this Agreement and the other Loan Documents to which it is a party,
or for recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the Courts of the State of New York, the
courts of the United States for the Southern District of New York, and
appellate courts from any thereof; (b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or
claim the same; (c) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Grantor at its
address referred to in Section 8.2 or at such other address of which the
Collateral Agent shall have been notified pursuant thereto; (d) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law or shall limit the right to sue
in any other jurisdiction; and (e) waives, to the maximum extent not prohibited by law, any right it may
have to claim or recover in any legal action or proceeding referred to in this
Section 8.12 any special, exemplary, punitive or consequential damages. 8.13 Acknowledgements. Each Grantor hereby acknowledges that: (a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents to which it is a party; (b) neither the Collateral Agent nor any other Secured Party has any
fiduciary relationship with or duty to any Grantor arising out of or in
connection with this Agreement or
any of the other Loan Documents, and the relationship between the
Grantors, on the one hand, 32




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and the Collateral Agent and other Secured Parties,
on the other hand, in connection herewith or therewith is solely that of debtor
and creditor; and (c) no joint venture is created hereby or by the other Loan Documents or
otherwise exists by virtue of the transactions contemplated hereby among the
Secured Parties or among the Grantors and the Secured Parties. 8.14 WAIVER OF JURY TRIAL. EACH GRANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN. 8.15 Additional Grantors. Each Subsidiary of the Borrower that is
required to become a party to this Agreement pursuant to Section 6.10 of the
Credit Agreement shall become a Grantor for all purposes of this Agreement upon
execution and delivery by such Subsidiary of an Assumption Agreement in the
form of Annex 1 hereto. 8.16 Releases. (a) At such time as the Loans, the Reimbursement
Obligations and the other Obligations shall have been paid in full, the
Commitments have been terminated and no Letters of Credit shall be outstanding,
the Collateral shall be released from the Liens created hereby, and this
Agreement and all obligations (other than those expressly stated to survive
such termination) of the Collateral Agent and each Grantor hereunder shall
terminate, all without delivery of any instrument or performance of any act by
any party, and all rights to the Collateral shall revert to the Grantors. At
the request and sole expense of any Grantor following any such termination, the
Collateral Agent shall deliver to such Grantor any Collateral held by the
Collateral Agent hereunder, and execute and deliver to such Grantor such
documents as such Grantor shall reasonably request to evidence such
termination. (b) If any of the Collateral shall be sold, transferred or otherwise
disposed of by any Grantor in a transaction permitted by the Credit Agreement,
or such Grantor is designated as an Unrestricted Subsidiary in accordance with
the Credit Agreement, then the Collateral Agent, at the request and sole
expense of such Grantor, shall execute and deliver to such Grantor all releases
or other documents reasonably necessary or desirable for the release of the
Liens created hereby on such Collateral and the Capital Stock of such Grantor.
At the request and sole expense of the Borrower, a Subsidiary Guarantor shall
be released from its obligations hereunder in the event that all the Capital
Stock of such Subsidiary Guarantor shall be sold, transferred or otherwise
disposed of in a transaction permitted by the Credit Agreement or such Grantor
is designated as an Unrestricted Subsidiary in accordance with the Credit
Agreement; provided that the Borrower shall have delivered to the Collateral
Agent, at least ten Business Days prior to the date of the proposed release, a
written request for release identifying the relevant Subsidiary Guarantor and
the terms of the sale or other disposition in reasonable detail, including the
price thereof and any expenses in connection therewith, together with a
certification by the Borrower stating that such transaction is in compliance
with the Credit Agreement and the other Loan Documents. (c) With respect to the pledge by DPC Investment of the Capital Stock of
Arovit Holdings pursuant to this Agreement, such pledge, to the extent that
such Capital Stock exceeds 33




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65% of the outstanding Capital Stock of Arovit
Holdings, shall be released in the event of a change in law subsequent to the
date hereof that, in the opinion of counsel (or a nationally recognized
accounting firm) reasonably acceptable to the Collateral Agent (such opinion to
be in form and substance reasonably satisfactory to the Collateral Agent),
results or has a substantial likelihood of resulting in such pledge giving rise
to a deemed dividend to the Borrower under § 956(c) of the Code (and the U.S.
Treasury regulations thereunder) or otherwise has materially adverse United
States tax consequences for the Borrower. 34




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IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to
be duly executed and delivered as of the date first above written. DOANE PET CARE ENTERPRISES, INC.By:Name:Title: DOANE PET CARE COMPANYBy:Name:Title: DOANE/WINDY HILL JOINT VENTURE L.L.C.By:
    Doane Pet Care Company, its sole member By:Name:Title: DPC INVESTMENT CORP.By:Name:Title: DOANE MANAGEMENT CORP.By:Name:Title: 35




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Acknowledged and Agreed to as
of the date hereof by:
CREDIT SUISSE FIRST BOSTON,
acting through its Cayman Islands Branch,
as Collateral AgentBy:Name:Title: By:Name:Title: 36




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EXHIBIT D MORTGAGE from DOANE PET CARE COMPANY, Mortgagor to CREDIT SUISSE FIRST BOSTON, as administrative agent, Mortgagee DATED AS OF NOVEMBER __, 2004 After recording, please return to: Latham & Watkins LLP
885 Third Ave.
New York, NY 10022 ATTN: Dana A. Wallach, esq. 1




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[INSERT STATE] THIS MORTGAGE, dated as of November ___, 2004 is made by DOANE PET CARE
COMPANY, a Delaware corporation (Mortgagor), whose address is 210 Westwood
Place South, Suite 400, Brentwood, Tennessee, 37027, to CREDIT SUISSE FIRST
BOSTON, as administrative agent for the Lenders, referred to below
(Mortgagee), whose address is Eleven Madison Avenue, New York, New York
10010. References to this Mortgage shall mean this instrument and any and
all renewals, modifications, amendments, supplements, extensions,
consolidations, substitutions, spreaders and replacements of this instrument. Background A. Doane Pet Care Company, has entered into the Credit Agreement dated as
of the date hereof (as the same may be amended, supplemented or otherwise
modified from time to time, the Credit Agreement) with several banks and
other financial institutions from time to time parties thereto (the Lenders)
and Mortgagee. The terms of the Credit Agreement are incorporated by reference
in this Mortgage as if the terms thereof were fully set forth herein. Capitalized terms not otherwise defined herein shall have the meanings
ascribed thereto in the Credit Agreement. In the event of a conflict between
this Mortgage and the Credit Agreement, the terms of the Credit Agreement shall
control. References in this Mortgage to the Interest Rates shall mean the
interest rates provided for in Section 2.14 of the Credit Agreement. B. Mortgagor is the owner of the parcel(s) of real property described on
Schedule A attached hereto and made a part hereof (such real property, together
with all of the buildings, improvements, structures and fixtures (including,
without limitation, all gas and electric fixtures, radiators, heaters, docks,
engines and machinery, boilers, ranges, elevators and motors, plumbing, heating
and air conditioning fixtures, carpeting and other floor coverings, water
heaters, cleaning apparatus and other items which are or are to be attached to
such real property) now or subsequently located thereon (the Improvements),
being collectively referred to as the Real Estate). C. Pursuant to the terms and conditions of the Credit Agreement, (i) each
Term Loan Lender has agreed to make a Term Loan to Mortgagor, as evidenced by
the Credit Agreement and if requested by any Lender, a Term Note; (ii) the
Swing Line Lender has agreed to make Swing Line Loans to Mortgagor; (iii) each
Revolving Lender has agreed to make Revolving Loans to Mortgagor; and (iv) the
Issuing Lenders have agreed to issue letters of credit on behalf of Mortgagor
(the Letters of Credit). The Reimbursement Obligations with respect to
drawings under the Letters of Credit are evidenced by the Credit Agreement. D. The obligations of the Lenders to make the Loans, to issue Letters of
Credit and to enter into Hedge Agreements are conditioned upon, among other
things, the execution and delivery by Mortgagor of this Mortgage. Granting Clauses 1




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For ten dollars ($10) and other good and valuable consideration, the
receipt and legal sufficiency of which are hereby acknowledged, Mortgagor
agrees that to secure: (a) repayment of the principal in the amount of $___or
so much thereof as may be outstanding from time to time of and
payment of interest (including, without limitation, interest
accruing after the maturity of the Loans made by each Lender and
interest accruing after the filing of any petition in bankruptcy,
or the commencement of any insolvency, reorganization or like
proceeding, relating to Mortgagor, whether or not a claim for
post-filing or post-petition interest is allowed in such
proceeding) on the Loans made by each Lender to, and the Notes, if
any, held by each Lender of, Mortgagor; (b) payment of all Reimbursement Obligations with respect to
drawings under the Letters of Credit; (c) payment of all obligations under any Hedge Agreement; (d) payment of all other obligations and liabilities of
Mortgagor to Mortgagee and the Lenders, whether direct or indirect,
absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection
with, the Credit Agreement, the Notes, the Letters of Credit, the
Guarantee and Collateral Agreement, the Hedge Agreements, this
Mortgage, the other Security Documents and other Loan Documents or
any other document made, delivered or given in connection herewith
or therewith, in each case whether on account of principal,
interest, Reimbursement Obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all
reasonable fees and disbursements of counsel to Mortgagee or to the
Lenders that are required to be paid by Mortgagor pursuant to the
terms of the Credit Agreement, this Mortgage or any other Loan
Documents) (the items set forth in clauses (a) through (d) being
referred to herein collectively as the Indebtedness); and (e) the performance and observance of each obligation, term,
covenant and condition to be performed or observed by Mortgagor
(the Obligations) under, in connection with or pursuant to the
provisions of the Credit Agreement, the Notes, the Letters of
Credit, the Guarantee and Collateral Agreement, the Hedge
Agreements, this Mortgage and any of the other Security Documents
or any of the other Loan Documents; MORTGAGOR HEREBY GRANTS TO MORTGAGEE A LIEN UPON AND A SECURITY INTEREST IN,
AND HEREBY MORTGAGES, GRANTS, ASSIGNS, TRANSFERS, HYPOTHECATES, PLEDGES,
CONVEYS AND SETS OVER TO MORTGAGEE WITH MORTGAGE COVENANTS: (A) the Real Estate; (B) all the estate, right, title, interest, claim or demand
whatsoever of Mortgagor, in possession or expectancy, in and to the Real
Estate or any part thereof; 2




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(C) all right, title, estate and interest of Mortgagor in, to and
under all easements, rights of way, strips and gores of land, streets,
ways, alleys, passages, sewer rights, waters, water courses, water and
riparian rights, development rights, air rights, mineral rights and all
estates, rights, titles, interests, privileges, licenses, tenements,
hereditaments and appurtenances belonging, relating or appertaining to
the Real Estate, and any reversions, remainders, rents, issues, profits
and revenue thereof and all land lying in the bed of any street, road or
avenue, in front of or adjoining the Real Estate to the center line
thereof; (D) all right, title, estate and interest of Mortgagor in and to
all of the fixtures, equipment (as defined in the Uniform Commercial
Code) chattels, business machines, machinery, apparatus, equipment,
furnishings, fittings and articles of personal property of every kind and
nature whatsoever, and all appurtenances and additions thereto and
substitutions or replacements thereof (together with, in each case,
attachments, components, parts and accessories) currently owned or
subsequently acquired by Mortgagor and now or subsequently attached to,
or contained in or used or usable in any way in connection with any
operation or letting of the Real Estate, including but without limiting
the generality of the foregoing, all screens, awnings, shades, blinds,
curtains, draperies, artwork, carpets, rugs, storm doors and windows,
furniture and furnishings, heating, electrical, and mechanical equipment,
lighting, switchboards, plumbing, ventilating, air conditioning and
air-cooling apparatus, refrigerating, and incinerating equipment,
escalators, elevators, loading and unloading equipment and systems,
stoves, ranges, laundry equipment, cleaning systems (including window
cleaning apparatus), telephones, communication systems (including
satellite dishes and antennae), televisions, computers, sprinkler systems
and other fire prevention and extinguishing apparatus and materials,
security systems, motors, engines, machinery, pipes, pumps, tanks,
conduits, appliances, fittings and fixtures of every kind and description
(all of the foregoing in this paragraph (D) being referred to as the
Equipment); (E) all right, title, estate and interest of Mortgagor in and to
all substitutes and replacements of, and all additions, improvements and
concessions to, the Real Estate and the Equipment, subsequently acquired
by or released to Mortgagor or constructed, assembled or placed by
Mortgagor on the Real Estate, immediately upon such acquisition, release,
construction, assembling or placement, including, without limitation, any
and all building materials whether stored at the Real Estate or offsite,
and, in each such case, without any further mortgage, conveyance,
assignment or other act by Mortgagor; (F) all right, title, estate and interest of Mortgagor in, to and
under all leases, subleases, underlettings, occupancy agreements,
concession agreements, management agreements, licenses and other
agreements relating to the use or occupancy of the Real Estate or the
Equipment or any part thereof, now existing or subsequently entered into
by Mortgagor and whether written or oral and all guarantees of any of the
foregoing (collectively, as any of the foregoing may be amended,
restated, extended, renewed or modified from time to time, the Leases),
and all rights of Mortgagor in respect of cash and securities deposited
thereunder and the right to receive and collect the revenues, income,
rents, issues and profits thereof, together with all other rents,
royalties, issues, 3




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profits, revenue, income and other benefits arising from the use and
enjoyment of the Mortgaged Property (as defined below) (collectively, the
Rents); (G) all right, title, estate and interest of Mortgagor in and to
all trade names, trade marks, logos, copyrights, licenses, good will and
books and records resident in any form or on any media relating to or
used in connection with the operation of the Real Estate or the Equipment
or any part thereof; all general intangibles (as defined in the Uniform
Commercial Code) related to the operation of the Real Estate, Equipment
or Improvements now existing or hereafter arising and the license to use
intellectual property such as computer software owned or licensed by
Mortgagor or other proprietary business information relating to
Mortgagors policies, procedures, manuals and trade secrets; (H) all right, title, estate and interest of Mortgagor in and to
all unearned premiums under insurance policies now or subsequently
obtained by Mortgagor relating to the Real Estate or Equipment and
Mortgagors interest in and to all proceeds of any such insurance
policies (including title insurance policies) including the right to
collect and receive such proceeds, subject to the provisions relating to
insurance generally set forth below; and all awards and other
compensation, including the interest payable thereon and the right to
collect and receive the same, made to the present or any subsequent owner
of the Real Estate or Equipment for the taking by eminent domain,
condemnation or otherwise, of all or any part of the Real Estate or any
easement or other right therein; (I) all right, title, estate and interest of Mortgagor in and to
(i) all contracts from time to time executed by Mortgagor or any manager
or agent on its behalf relating to the ownership, construction,
maintenance, repair, operation, occupancy, sale, leasing or financing of
the Real Estate or Equipment or any part thereof and all agreements
relating to the purchase or lease of any portion of the Real Estate or
any property which is adjacent or peripheral to the Real Estate, together
with the right to exercise such options and all leases of Equipment
(collectively, the Contracts), (ii) all consents, licenses, permits
variances, building permits, certificates of occupancy and other
governmental approvals relating to construction, completion, occupancy,
use or operation of the Real Estate or any part thereof (collectively,
the Permits) and (iii) all drawings, plans, specifications and similar
or related items relating to the Real Estate (collectively, the Plans); (J) all right, title, estate and interest of Mortgagor in and to
any and all monies now or subsequently on deposit for the payment of real
estate taxes or special assessments against the Real Estate or for the
payment of premiums on insurance policies covering the foregoing property
or otherwise on deposit with or held by Mortgagee as provided in this
Mortgage; and all documents as defined in the Uniform Commercial Code
or other receipts covering, evidencing or representing goods now owned or
hereafter acquired by Mortgagor (collectively, Documents); all (i)
instruments as defined in the Uniform Commercial Code, chattel paper
as defined in the Uniform Commercial Code, or letters of credit,
evidencing, representing, arising from or existing in respect of,
relating to, securing or otherwise supporting the payment of, any of the 4




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Collateral (including, without limitation, promissory notes, drafts,
bills of exchange and trade acceptances) and chattel paper obtained by
Mortgagor in connection with the Mortgaged Property (including, without
limitation, all ledger sheets, computer records and printouts, databases,
programs, books of account and files of Mortgagor relating thereto) and
(ii) notes or other obligations of indebtedness owing to Mortgagor from
whatever source arising, in each case now owned or hereafter acquired by
Mortgagor; all inventory as defined in the Uniform Commercial Code,
whether now or hereafter existing or acquired, and which arises out of or
is used in connection with, directly or indirectly, the ownership and
operation of the Mortgaged Property, all Documents representing the same
and all Proceeds and products of the same (including, without limitation,
all goods, merchandise, raw materials, work in process and other personal
property, wherever located, now or hereafter owned or held by Mortgagor
for manufacture, processing, the providing of services or sale, use or
consumption in the operation of the Mortgaged Property (including,
without limitation, fuel, supplies and similar items and all substances
commingled therewith or added thereto) and rights and claims of Mortgagor
against anyone who may store or acquire the same for the account of
Mortgagor, or from whom Mortgagor may purchase the same); and (K) all proceeds (as defined in the Uniform Commercial Code) and,
in any event, shall include, without limitation, all proceeds, products,
offspring, rents, profits or receipts, in whatever form, arising from the
Mortgaged Property (including, without limitation, (i) cash, instruments
and other property received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Mortgaged Property, (ii)
the collection, sale, lease, sublease, concession, exchange, assignment,
licensing or other disposition of, or realization upon, any item or
portion of the Mortgaged Property (including, without limitation, all
claims of Mortgagor against third parties for loss of, damage to,
destruction of, or for proceeds payable under, or unearned premiums with
respect to, policies of insurance in respect of, any the Mortgaged
Property now existing or hereafter arising), (iii) any and all proceeds
of any insurance, indemnity, warranty or guaranty payable to Mortgagor
from time to time with respect to any of the Mortgaged Property, (iv) any
and all payments (in any form whatsoever) made or due and payable to
Mortgagor from time to time in connection with the requisition,
confiscation, condemnation, seizure or forfeiture of all or any part of
the Mortgaged Property by any governmental authority (or any person
acting under color of Governmental Authority) and (v) any and all other
amounts from time to time paid or payable under or in connection with any
of the Mortgaged Property), both cash and noncash, of the foregoing; (All of the foregoing property and rights and interests now owned or
held or subsequently acquired by Mortgagor and described in the foregoing
clauses (A) through (E) are collectively referred to as the Premises,
and those described in the foregoing clauses (A) through (K) are
collectively referred to as the Mortgaged Property). TO HAVE AND TO HOLD the Mortgaged Property and the rights and privileges
hereby mortgaged unto Mortgagee, its successors and assigns for the uses and
purposes set forth herein, until the Indebtedness is fully paid and the
Obligations fully performed. 5




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Terms and Conditions Mortgagor further represents, warrants, covenants and agrees with
Mortgagee as follows: 1. Warranty of Title. Mortgagor warrants the good and marketable title
to the Premises, subject only to the matters that are set forth in Schedule B
of the title insurance policy or policies being issued to Mortgagee to insure
the lien of this Mortgage (the Permitted Exceptions) and that Mortgagor has
the full power, authority and right to execute, deliver and perform its
obligations under this Mortgage and to encumber, mortgage, transfer, give,
grant, bargain, sell, alienate, enfeoff, convey, confirm, warrant, pledge,
assign and hypothecate the same and that this Mortgage is and will remain a
valid and enforceable first lien on and security interest in the Mortgaged
Property, subject only to the Permitted Encumbrances. Mortgagor shall forever
warrant, defend and preserve such title and the validity and priority of the
lien of this Mortgage and shall forever warrant and defend the same to
Mortgagee against the claims of all persons whomsoever. 2. Payment of Indebtedness. Mortgagor shall pay the Indebtedness at the
times and places and in the manner specified in the Notes, the Credit
Agreement, Guarantee and Collateral Agreement and any Hedge Agreement and shall
perform all the Obligations in a timely manner. 3. Requirements. (a) Mortgagor shall promptly comply with, or cause to
be complied with, and conform to (i) all present and future laws, statutes,
codes, ordinances, orders, judgments, decrees, rules, regulations and
requirements, and irrespective of the nature of the work to be done, of each
Governmental Authority which has jurisdiction over the Mortgaged Property and
(ii) all covenants, restrictions and conditions now or later of record which
may be applicable to any of the Mortgaged Property, or to the use, manner of
use, occupancy, possession, operation, maintenance, alteration, repair or
reconstruction of any of the Mortgaged Property, except to the extent that
failure to comply therewith could not, in the aggregate, reasonably be expected
to have a Material Adverse Effect. All present and future laws, statutes,
codes, ordinances, orders, judgments, decrees, rules, regulations and
requirements of every Governmental Authority applicable to Mortgagor or to any
of the Mortgaged Property and all covenants, restrictions, and conditions which
now or later may be applicable to any of the Premises are collectively referred
to as the Legal Requirements. (b) Notwithstanding the provisions of paragraph (a) of this Section,
Mortgagor shall have the right to contest or object in good faith to the
validity or application of any Legal Requirement by appropriate legal
proceedings diligently conducted in good faith, but such right shall not be
deemed or construed in any way as relieving, modifying, or extending
Mortgagors covenant to comply with any such Legal Requirement unless (i)
Mortgagor has given prior written notice to Mortgagee of Mortgagors intent so
to contest or object to such Legal Requirement, (ii) Mortgagor shall
demonstrate to Mortgagees reasonable satisfaction that any delay in compliance
with such Legal Requirement shall not entail a risk of forfeiture of any of the
Mortgaged Property or subject Mortgagor or Mortgagee to any criminal liability,
(iii) by the terms of such Legal Requirement, compliance therewith pending
prosecution of any such legal proceeding may legally be delayed without
incurring any lien, charge or liability of any kind 6




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against the Mortgaged property (other than for Permitted Exceptions or
Liens permitted under Section 7.3 of the Credit Agreement), or any part
thereof, unless Mortgagor shall furnish a good and sufficient bond or surety as
required by and reasonably satisfactory to Mortgagee and (iv) all material
permits required for the operation of the Mortgaged property remain in effect. 4. Payment of Taxes and Other Impositions. (a) Promptly when due,
Mortgagor shall pay and discharge all taxes of every kind and nature
(including, without limitation, all real and personal property, income,
franchise, withholding, transfer, gains, profits and gross receipts taxes), all
charges for any easement or agreement maintained for the benefit of any of the
Mortgaged Property, all general and special assessments, levies, permits,
inspection and license fees, all water and sewer rents and charges, vault
taxes, and all other public charges even if unforeseen or extraordinary,
imposed upon or assessed against or which may become a lien on any of the
Mortgaged Property, or arising in respect of the occupancy, use or possession
thereof, together with any penalties or interest on any of the foregoing (all
of the foregoing are collectively referred to as the Impositions). (i) Upon
reasonable request of Mortgagee evidence acceptable to Mortgagee showing the
payment of any other such Imposition. (b) Mortgagor shall have the right before any delinquency occurs to
contest or object in good faith to the amount or validity of any Imposition by
appropriate legal proceedings, but such right shall not be deemed or construed
in any way as relieving, modifying, or extending Mortgagors covenant to pay
any such Imposition at the time and in the manner provided in this Section 4
unless (i) Mortgagor has given prior written notice to Mortgagee of Mortgagors
intent so to contest or object to an Imposition, (ii) Mortgagor shall
demonstrate to Mortgagees satisfaction that the legal proceedings shall
operate conclusively to prevent the sale of the Mortgaged Property, or any part
thereof, to satisfy such Imposition prior to final determination of such
proceedings and (iii) Mortgagor shall furnish a good and sufficient bond or
surety as requested by and reasonably satisfactory to Mortgagee in the amount
of the Impositions which are being contested plus any interest and penalty
which may be imposed thereon and which could become a lien against the Real
Estate or any part of the Mortgaged Property. 5. Insurance. (a) Mortgagor shall maintain or cause to be maintained on
all of the Premises proper insurance in accordance with Section 6.5(b) of the
Credit Agreement. (b) Each insurance policy (other than flood insurance) shall (x) provide
that the insurer affording such coverage shall mail 30 days written notice to
the Administrative Agent in the event of cancellation of such coverage, and (y)
with respect to all property insurance, provide for deductibles in an amount
reasonably satisfactory to Mortgagee and contain a Replacement Cost
Endorsement without any deduction made for depreciation and with no
co-insurance penalty (or attaching an agreed amount endorsement satisfactory to
Mortgagee), with loss payable solely to Mortgagee (modified, if necessary, to
provide that proceeds in the amount of replacement cost may be retained by
Mortgagee without the obligation to rebuild) as its interest may appear,
without contribution, under a standard or New York mortgagee clause
acceptable to Mortgagee. Liability insurance policies shall name Mortgagee as
an additional insured and contain a waiver of subrogation against Mortgagee.
Each policy shall expressly provide that any proceeds which are payable to
Mortgagee shall be paid by check payable to the order of Mortgagee and
Mortgagor and requiring the endorsement of Mortgagee and Mortgagor. 7




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(c) Mortgagor shall deliver to Mortgagee a certificate of such insurance
in Acord Form 28 acceptable to Mortgagee, together with a copy of the
declaration page for each such policy. Mortgagor shall (i) pay as they become
due all premiums for such insurance and (ii) not later than 30 days prior to
the expiration of each policy to be furnished pursuant to the provisions of
this Section 5, deliver a renewed policy or policies, or duplicate original or
originals thereof, marked premium paid, or accompanied by such other evidence
of payment satisfactory to Mortgagee. (d) Mortgagor promptly shall comply with and conform to (i) all
provisions of each such insurance policy, and (ii) all requirements of the
insurers applicable to Mortgagor or to any of the Mortgaged Property or to the
use, manner of use, occupancy, possession, operation, maintenance, alteration
or repair of any of the Mortgaged Property. Mortgagor shall not use or permit
the use of the Mortgaged Property in any manner which would permit any insurer
to cancel any insurance policy or void coverage required to be maintained by
this Mortgage. (e) If the Mortgaged Property, or any part thereof, shall be destroyed or
damaged, Mortgagor shall give immediate notice thereof to Mortgagee. All
insurance proceeds shall be paid to Mortgagee to be held by Mortgagee as
collateral to secure the payment and performance of the Indebtedness and the
Obligations. Notwithstanding the preceding sentence, provided that no Event of
Default shall have occurred and be continuing, Mortgagor shall have the right
to adjust such loss, and the insurance proceeds relating to such loss shall be
paid over to Mortgagor; provided that Mortgagor shall, promptly after any such
damage, repair all such damage regardless of whether any insurance proceeds
have been received or whether such proceeds, if received, are sufficient to pay
for the costs of repair. If an Event of Default shall have occurred and be
continuing, Mortgagee shall have the right to adjust such loss and use the
insurance proceeds to pay the Indebtedness or repair the Mortgaged Property in
its sole and absolute discretion. (f) In the event of foreclosure of this Mortgage or other transfer of
title to the Mortgaged Property, all right, title and interest of Mortgagor in
and to any insurance policies then in force shall pass to the purchaser or
grantee. (g) Mortgagor may maintain insurance required under this Mortgage by
means of one or more blanket insurance policies maintained by Mortgagor;
provided, however, that (A) any such policy shall specify, or Mortgagor shall
furnish to Mortgagee a written statement from the insurer so specifying, the
maximum amount of the total insurance afforded by such blanket policy that is
allocated to the Premises and the other Mortgaged Property and any sublimits in
such blanket policy applicable to the Premises and the other Mortgaged
Property, (B) each such blanket policy shall include an endorsement providing
that, in the event of a loss resulting from an insured peril, insurance
proceeds shall be allocated to the Mortgaged Property in an amount equal to the
coverages required to be maintained by Mortgagor as provided above and (C) the
protection afforded under any such blanket policy shall be no less than that
which would have been afforded under a separate policy or policies relating
only to the Mortgaged Property. 6. Restrictions on Liens and Encumbrances. Except for the lien of this
Mortgage and the Permitted Exceptions, and except as expressly permitted under
the Credit Agreement, 8




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Mortgagor shall not further mortgage, nor otherwise encumber the Mortgaged
Property nor create or suffer to exist any lien, charge or encumbrance on the
Mortgaged Property, or any part thereof, whether superior or subordinate to the
lien of this Mortgage and whether recourse or non-recourse. 7. Due on Sale and Other Transfer Restrictions. Except as expressly
permitted under the Credit Agreement, Mortgagor shall not sell, transfer,
convey or assign all or any portion of, or any interest in, the Mortgaged
Property. 8. Maintenance. Mortgagor shall maintain or cause to be maintained all
the Improvements in good condition and repair, ordinary wear and tear expected,
and shall not commit or suffer any waste of the Improvements. Mortgagor shall
repair, restore, replace or rebuild promptly any part of the Premises which may
be damaged or destroyed by any casualty whatsoever. 9. Condemnation/Eminent Domain. Immediately upon obtaining knowledge of
the institution of any proceedings for the condemnation of the Mortgaged
Property, or any portion thereof, Mortgagor shall notify Mortgagee of the
pendency of such proceedings. Mortgagee is hereby authorized and empowered by
Mortgagor to settle or compromise any claim in connection with such
condemnation and to receive all awards and proceeds thereof to be held by
Mortgagee as collateral to secure the payment and performance of the
Indebtedness and the Obligations. Notwithstanding the preceding sentence,
provided no Event of Default shall have occurred and be continuing, but subject
to the terms and provisions of the Credit Agreement, Mortgagor shall, at its
expense, diligently prosecute any proceeding relating to such condemnation,
settle or compromise any claims in connection therewith and receive any awards
or proceeds thereof. 10. Leases. (a) Mortgagor shall not (i) execute an assignment or pledge
of any Lease relating to all or any portion of the Mortgaged Property other
than in favor of Mortgagee, or (ii) except as expressly permitted under the
Credit Agreement, without the prior written consent of Mortgagee, execute or
permit to exist any Lease of any of the Mortgaged Property. (b) As to any Lease now in existence or subsequently consented to by
Mortgagee, except as expressly permitted under the Credit Agreement, Mortgagor
shall not, without the prior written consent of Mortgagee, accept a surrender
or terminate, cancel, rescind, supplement, alter, revise, modify or amend such
Lease or permit any such action to be taken nor shall Mortgagor accept the
payment of rent more than thirty (30) days in advance of its due date. 11. Further Assurances. To further assure Mortgagees rights under this
Mortgage, Mortgagor agrees upon demand of Mortgagee to do any act or execute
any additional documents (including, but not limited to, security agreements on
any personalty included or to be included in the Mortgaged Property, a separate
assignment of each Lease in recordable form and any Uniform Commercial Code
financing statements) as may be reasonably required by Mortgagee to confirm the
lien of this Mortgage and all other rights or benefits conferred on Mortgagee. 9




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12. Mortgagees Right to Perform. If Mortgagor fails to perform any of
the covenants or agreements of Mortgagor (other than with respect to the
failure to maintain insurance as required hereunder, in which case Mortgagee
can immediately perform), and such failure constitutes an Event of Default,
without waiving or releasing Mortgagor from any obligation or default under
this Mortgage, may, at any time (but shall be under no obligation to) pay or
perform the same, and the amount or cost thereof, with interest at the rate
provided for in Section 2.14(c) of the Credit Agreement, shall immediately be
due from Mortgagor to Mortgagee and the same shall be secured by this Mortgage
and shall be a lien on the Mortgaged Property prior to any right, title to,
interest in or claim upon the Mortgaged Property attaching subsequent to the
lien of this Mortgage. No payment or advance of money by Mortgagee under this
Section 12 shall be deemed or construed to cure Mortgagors default or waive
any right or remedy of Mortgagee. 13. Hazardous Material. Mortgagee shall have the right at any time to
conduct an environmental audit of the Premises and Mortgagor shall cooperate in
the conduct of such environmental audit. Mortgagor shall give Mortgagee and
its agents and employees access to the Premises to remove Material of
Environmental Concern. Mortgagor shall comply with all provisions of Section
___of the Credit Agreement regarding Materials of Environmental concern and
environmental laws. 14. Events of Default. The occurrence of an Event of Default under the
Credit Agreement shall constitute an Event of Default hereunder. 15. Remedies. (a) Upon the occurrence and during the continuation of
any Event of Default, in addition to any other rights and remedies Mortgagee
may have pursuant to the Loan Documents, or as provided by law, and without
limitation, (a) if such event is an Event of Default specified in clause (i) or
(ii) of Section 8(f) of the Credit Agreement with respect to Mortgagor,
automatically the Commitments shall immediately terminate and the Loans (with
accrued interest thereon) and all other amounts owing under the Credit
Agreement and the other Loan Documents (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) shall immediately become due and payable, and if such event is any
other Event of Default, either or both of the following actions may be taken:
(i) with the consent of the Majority Revolving Facility Lenders, the
Administrative Agent may, or upon the request of the Majority Revolving
Facility Lenders, the Administrative Agent shall, by notice to Mortgagor
declare the Revolving Commitments to be terminated forthwith, whereupon the
Revolving Commitments shall immediately terminate; and (ii) with the consent of
the Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to Mortgagor,
declare the Loans (with accrued interest thereon) and all other amounts owing
under this Mortgage and the other Loan Documents (including all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters
of Credit shall have presented the documents required thereunder) to be due and
payable forthwith, whereupon the same shall immediately become due and payable.
Except as expressly provided above in this Section 15, presentment, demand,
protest and all other notices of any kind are hereby expressly waived. In
addition, upon the occurrence and during the continuation of any Event of
Default, Mortgagee may immediately take such action, without notice or demand,
as it deems advisable to protect and enforce its rights against Mortgagor and
in and to the Mortgaged 10




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Property, including, but not limited to, the following actions, each of
which may be pursued concurrently or otherwise, at such time and in such manner
as Mortgagee may determine, in its sole discretion, without impairing or
otherwise affecting the other rights and remedies of Mortgagee: (i) Mortgagee may, to the extent permitted by applicable law, (A)
take immediate possession of all of the Mortgaged Property and take such
action as Mortgagee, in its sole judgment, deems necessary to protect and
preserve the Mortgaged Property, (B) institute, maintain and complete an
action of mortgage foreclosure against all or any part of the Mortgaged
Property and cause the Mortgaged Property to be sold in total or in
parts, (C) purchase the Mortgaged Property at foreclosure sale, (D)
institute and maintain an action on the Indebtedness, (E) sell all or
part of the Mortgaged Property (Mortgagor expressly granting to Mortgagee
the power of sale), or (F) take such other action at law or in equity for
the enforcement of this Mortgage or any of the Loan Documents as the law
may allow. Mortgagee may proceed in any such action to final judgment
and execution thereon for all sums due hereunder, together with interest
thereon at the rate provided for in Section 2.14(c) of the Credit
Agreement and all costs of suit, including, without limitation,
reasonable attorneys fees and disbursements. Interest at the rate
provided for in Section 2.14(c) of the Credit Agreement shall be due on
any judgment obtained by Mortgagee from the date of judgment until actual
payment is made of the full amount of the judgment. (ii) Mortgagee may personally, or by its agents, attorneys and
employees and without regard to the adequacy or inadequacy of the
Mortgaged Property or any other collateral as security for the
Indebtedness and Obligations enter into and upon the Mortgaged Property
and each and every part thereof and exclude Mortgagor and its agents and
employees therefrom without liability for trespass, damage or otherwise
(Mortgagor hereby agreeing to surrender possession of the Mortgaged
Property to Mortgagee upon demand at any such time) and use, operate,
manage, maintain and control the Mortgaged Property and every part
thereof. Following such entry and taking of possession, Mortgagee shall
be entitled, without limitation, (x) to lease all or any part or parts of
the Mortgaged Property for such periods of time and upon such conditions
as Mortgagee may, in its discretion, deem proper, (y) to enforce, cancel
or modify any Lease and (z) generally to execute, do and perform any
other act, deed, matter or thing concerning the Mortgaged Property as
Mortgagee shall deem appropriate as fully as Mortgagor might do. (b) In case of a foreclosure sale, the Real Estate may be sold, at
Mortgagees election, in one parcel or in more than one parcel and Mortgagee is
specifically empowered, (without being required to do so, and in its sole and
absolute discretion) to cause successive sales of portions of the Mortgaged
Property to be held. 16. Sale of the Properties; Application of Proceeds. Subject to the
requirements of applicable law, the proceeds or avails of a foreclosure sale
and all moneys received by Mortgagee pursuant to any right given or action
taken under the provisions of this Mortgage, shall be applied as follows: 11




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First: To the payment of the costs and expenses of any such sale or other
enforcement proceedings in accordance with the terms hereof and of any judicial
proceeding wherein the same may be made, and in addition thereto, reasonable
compensation to Mortgagee, its agents and counsel, and of all sums due to
Mortgagee under the Loan Documents and all actual out-of-pocket expenses,
advances, liabilities and sums made or furnished or incurred by Mortgagee or
the holders under this Mortgage and the Loan Documents, together with interest
at the rate provided for in Section 2.15 of the Credit Agreement (or such
lesser amount as may be the maximum amount permitted by law), and all taxes,
assessments or other charges, except any taxes, assessments or other charges
subject to which the Mortgaged Property shall have been sold; Second: To the payment of the whole amount when due, owing or unpaid upon
the Indebtedness for principal and interest; and in case such proceeds shall be
insufficient to pay in full the whole amount so due and unpaid, then first, to
the payment of all amounts of interest at the time due and payable on the
Indebtedness, without preference or priority of any installment of interest
over any other installment of interest, and second, to the payment of all
amounts of principal; all such payments of principal and interest to be made
ratably to the holders entitled thereto; Third: To the payment of any other sums required to be paid by Mortgagor
pursuant to any provision of this Mortgage, the Loan Agreement and any other
document or instrument securing the Indebtedness; and Fourth: To the payment of the surplus, if any, to whomsoever may be
lawfully entitled to receive the same. 17. Right of Mortgagee to Credit Sale. Upon the occurrence of any sale
made under this Mortgage, whether made under the power of sale or by virtue of
judicial proceedings or of a judgment or decree of foreclosure and sale,
Mortgagee may bid for and acquire the Mortgaged Property or any part thereof.
In lieu of paying cash therefor, Mortgagee may make settlement for the purchase
price by crediting upon the Indebtedness or other sums secured by this Mortgage
the net sales price after deducting therefrom the expenses of sale and the cost
of the action and any other sums which Mortgagee is authorized to deduct under
this Mortgage. In such event, this Mortgage, the Credit Agreement, Notes,
Guarantee and Collateral Agreement and documents evidencing expenditures
secured hereby may be presented to the Person conducting the sale in order that
the amount so used or applied may be credited upon the Indebtedness as having
been paid. 18. Appointment of Receiver. If an Event of Default shall have occurred
and be continuing, Mortgagee as a matter of right and without notice to
Mortgagor, unless otherwise required by applicable law, and without regard to
the adequacy or inadequacy of the Mortgaged Property or any other collateral as
security for the Indebtedness and Obligations or the interest of Mortgagor
therein, shall have the right to apply to any court having jurisdiction to
appoint a receiver or receivers or other manager of the Mortgaged Property, and
Mortgagor hereby irrevocably consents to such appointment and waives notice of
any application therefor (except as may be required by law). Any such receiver
or receivers shall have all the usual powers and duties of receivers in like or
similar cases and all the powers and duties of Mortgagee in case of 12




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entry as provided in this Mortgage, including, without limitation and to
the extent permitted by law, the right to enter into leases of all or any part
of the Mortgaged Property, and shall continue as such and exercise all such
powers until the date of confirmation of sale of the Mortgaged Property unless
such receivership is sooner terminated. 19. Extension, Release, etc. (a) Without affecting the lien or charge
of this Mortgage upon any portion of the Mortgaged Property not then or
theretofore released as security for the full amount of the Indebtedness,
Mortgagee may, from time to time and without notice, agree to (i) release any
person liable for the Indebtedness, (ii) extend the maturity or alter any of
the terms of the Indebtedness or any guaranty thereof, (iii) grant other
indulgences, (iv) release or reconvey, or cause to be released or reconveyed at
any time at Mortgagees option any parcel, portion or all of the Mortgaged
Property, (v) take or release any other or additional security for any
obligation herein mentioned, or (vi) make compositions or other arrangements
with debtors in relation thereto. If at any time this Mortgage shall secure
less than all of the principal amount of the Indebtedness, it is expressly
agreed that any repayments of the principal amount of the Indebtedness shall
not reduce the amount of the lien of this Mortgage until the lien amount shall
equal the principal amount of the Indebtedness outstanding. (b) No recovery of any judgment by Mortgagee and no levy of an execution
under any judgment upon the Mortgaged Property or upon any other property of
Mortgagor shall affect the lien of this Mortgage or any liens, rights, powers
or remedies of Mortgagee hereunder, and such liens, rights, powers and remedies
shall continue unimpaired. (c) If Mortgagee shall have the right to foreclose this Mortgage,
Mortgagor authorizes Mortgagee at its option to foreclose the lien of this
Mortgage subject to the rights of any tenants of the Mortgaged Property. The
failure to make any such tenants parties defendant to any such foreclosure
proceeding and to foreclose their rights will not be asserted by Mortgagor as a
defense to any proceeding instituted by Mortgagee to collect the Indebtedness
or to foreclose the lien of this Mortgage. (d) Unless expressly provided otherwise, in the event that ownership of
this Mortgage and title to the Mortgaged Property or any estate therein shall
become vested in the same Person, this Mortgage shall not merge in such title
but shall continue as a valid lien on the Mortgaged Property for the amount
secured hereby. 20. Security Agreement under Uniform Commercial Code. (a) It is the
intention of the parties hereto that this Mortgage shall constitute a Security
Agreement within the meaning of the Uniform Commercial Code (the Code) of the
State of [___]. If an Event of Default shall occur under this Mortgage,
then in addition to having any other right or remedy available at law or in
equity, Mortgagee shall have the option of either (i) proceeding under the Code
and exercising such rights and remedies as may be provided to a secured party
by the Code with respect to all or any portion of the Mortgaged Property which
is personal property (including, without limitation, taking possession of and
selling such property) or (ii) treating such property as real property and
proceeding with respect to both the real and personal property constituting the
Mortgaged Property in accordance with Mortgagees rights, powers and remedies
with respect to the real property (in which event the default provisions of the
Code shall not apply). If Mortgagee shall elect to proceed under the Code,
then five days notice of sale of the personal 13




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property shall be deemed reasonable notice and the reasonable expenses of
retaking, holding, preparing for sale, selling and the like incurred by
Mortgagee shall include, but not be limited to, attorneys fees and legal
expenses. At Mortgagees request, Mortgagor shall assemble the personal
property and make it available to Mortgagee at a place designated by Mortgagee
which is reasonably convenient to both parties. (b) Mortgagor and Mortgagee agree, to the extent permitted by law, that:
(i) this Mortgage upon recording or registration in the real estate records of
the proper office shall constitute a financing statement filed as a fixture
filing within the meaning of the Code; (ii) Mortgagor is the record owner of
the Real Estate; and (iii) the addresses of Mortgagor and Mortgagee are as set
forth on the first page of this Mortgage. (c) Mortgagor, upon request by Mortgagee from time to time, shall
execute, acknowledge and deliver to Mortgagee one or more separate security
agreements, in form reasonably satisfactory to Mortgagee, covering all or any
part of the Mortgaged Property and will further execute, acknowledge and
deliver, or cause to be executed, acknowledged and delivered, any financing
statement, affidavit, continuation statement or certificate or other document
as Mortgagee may reasonably request in order to perfect, preserve, maintain,
continue or extend the security interest under and the priority of this
Mortgage and such security instrument. Mortgagor further agrees to pay to
Mortgagee on demand all costs and expenses incurred by Mortgagee in connection
with the preparation, execution, recording, filing and re-filing of any such
document and all reasonable costs and expenses of any record searches for
financing statements Mortgagee shall reasonably require. If Mortgagor shall
fail to furnish any financing or continuation statement within 10 days after
request by Mortgagee, then pursuant to the provisions of the Code, Mortgagor
hereby authorizes Mortgagee, without the signature of Mortgagor, to execute and
file any such financing and continuation statements. The filing of any
financing or continuation statements in the records relating to personal
property or chattels shall not be construed as in any way impairing the right
of Mortgagee to proceed against any personal property encumbered by this
Mortgage as real property, as set forth above. 21. Assignment of Rents. Mortgagor hereby assigns to Mortgagee the Rents
as further security for the payment of the Indebtedness and performance of the
Obligations, and Mortgagor grants to Mortgagee the right to enter the Mortgaged
Property for the purpose of collecting the same and to let the Mortgaged
Property or any part thereof, and to apply the Rents on account of the
Indebtedness. The foregoing assignment and grant is present and absolute and
shall continue in effect until the Indebtedness is paid in full, but Mortgagee
hereby waives the right to enter the Mortgaged Property for the purpose of
collecting the Rents and Mortgagor shall be entitled to collect, receive, use
and retain the Rents until the occurrence of an Event of Default under this
Mortgage; such right of Mortgagor to collect, receive, use and retain the Rents
may be revoked by Mortgagee upon the occurrence of any Event of Default under
this Mortgage by giving not less than five days written notice of such
revocation to Mortgagor. In the event such notice is given, Mortgagor shall
pay over to Mortgagee, or to any receiver appointed to collect the Rents, any
lease security deposits. Mortgagor shall not accept prepayments of
installments of Rent to become due for a period of more than one month in
advance (except for security deposits and estimated payments of percentage
rent, if any). 14




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22. Trust Funds. All lease security deposits of the Real Estate shall be
treated as trust funds not to be commingled with any other funds of Mortgagor.
Within 10 days after request by Mortgagee, Mortgagor shall furnish Mortgagee
satisfactory evidence of compliance with this Section 22, together with a
statement of all lease security deposits by lessees and copies of all Leases
not previously delivered to Mortgagee, which statement shall be certified by
Mortgagor. 23. Additional Rights. The holder of any subordinate lien on the
Mortgaged Property shall have no right to terminate any Lease whether or not
such Lease is subordinate to this Mortgage nor shall any holder of any
subordinate lien join any tenant under any Lease in any action to foreclose the
lien or modify, interfere with, disturb or terminate the rights of any tenant
under any Lease. By recordation of this Mortgage all subordinate lienholders
are subject to and notified of this provision, and any action taken by any such
lienholder contrary to this provision shall be null and void. Upon the
occurrence of any Event of Default, Mortgagee may, in its sole discretion and
without regard to the adequacy of its security under this Mortgage, apply all
or any part of any amounts on deposit with Mortgagee under this Mortgage
against all or any part of the Indebtedness. Any such application shall not be
construed to cure or waive any Default or Event of Default or invalidate any
act taken by Mortgagee on account of such Default or Event of Default. 24. Notices. All notices, requests, demands and other communications
hereunder shall be given in accordance with the provisions of Section 10.2 of
the Credit Agreement to Mortgagor and to Mortgagee as specified therein. 25. No Oral Modification. This Mortgage may not be amended, supplemented
or otherwise modified except in accordance with the provisions of Section 10.1
of the Credit Agreement. To the extent permitted by Applicable Law, any
agreement made by Mortgagor and Mortgagee after the date of this Mortgage
relating to this Mortgage shall be superior to the rights of the holder of any
intervening or subordinate lien or encumbrance. 26. Partial Invalidity. In the event any one or more of the provisions
contained in this Mortgage shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof, but each shall be
construed as if such invalid, illegal or unenforceable provision had never been
included. Notwithstanding to the contrary anything contained in this Mortgage
or in any provisions of the Indebtedness or Loan Documents, the obligations of
Mortgagor and of any other obligor under the Indebtedness or Loan Documents
shall be subject to the limitation that Mortgagee shall not charge, take or
receive, nor shall Mortgagor or any other obligor be obligated to pay to
Mortgagee, any amounts constituting interest in excess of the maximum rate
permitted by law to be charged by Mortgagee. 27. Mortgagors Waiver of Rights. To the fullest extent permitted by
law, Mortgagor waives the benefit of all laws now existing or that may
subsequently be enacted providing for (i) any appraisement before sale of any
portion of the Mortgaged Property, (ii) any extension of the time for the
enforcement of the collection of the Indebtedness or the creation or extension
of a period of redemption from any sale made in collecting such debt and (iii)
exemption of the Mortgaged Property from attachment, levy or sale under
execution or 15




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exemption from civil process. To the full extent Mortgagor may do so,
Mortgagor agrees that Mortgagor will not at any time insist upon, plead, claim
or take the benefit or advantage of any law now or hereafter in force providing
for any appraisement, valuation, stay, exemption, extension or redemption, or
requiring foreclosure of this Mortgage before exercising any other remedy
granted hereunder and Mortgagor, for Mortgagor and its successors and assigns,
and for any and all Persons ever claiming any interest in the Mortgaged
Property, to the extent permitted by law, hereby waives and releases all rights
of redemption, valuation, appraisement, stay of execution, notice of election
to mature or declare due the whole of the secured indebtedness and marshalling
in the event of foreclosure of the liens hereby created. 28. Remedies Not Exclusive. Mortgagee shall be entitled to enforce
payment of the Indebtedness and performance of the Obligations and to exercise
all rights and powers under this Mortgage or under any of the other Loan
Documents or other agreement or any laws now or hereafter in force,
notwithstanding some or all of the Indebtedness and Obligations may now or
hereafter be otherwise secured, whether by mortgage, security agreement,
pledge, lien, assignment or otherwise. Neither the acceptance of this Mortgage
nor its enforcement, shall prejudice or in any manner affect Mortgagees right
to realize upon or enforce any other security now or hereafter held by
Mortgagee, it being agreed that Mortgagee shall be entitled to enforce this
Mortgage and any other security now or hereafter held by Mortgagee in such
order and manner as Mortgagee may determine in its absolute discretion. No
remedy herein conferred upon or reserved to Mortgagee is intended to be
exclusive of any other remedy herein or by law provided or permitted, but each
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute.
Every power or remedy given by any of the Loan Documents to Mortgagee or to
which it may otherwise be entitled, may be exercised, concurrently or
independently, from time to time and as often as may be deemed expedient by
Mortgagee. In no event shall Mortgagee, in the exercise of the remedies
provided in this Mortgage (including, without limitation, in connection with
the assignment of Rents to Mortgagee, or the appointment of a receiver and the
entry of such receiver on to all or any part of the Mortgaged Property), be
deemed a mortgagee in possession, and Mortgagee shall not in any way be made
liable for any act, either of commission or omission, in connection with the
exercise of such remedies. 29. Multiple Security. If (a) the Premises shall consist of one or more
parcels, whether or not contiguous and whether or not located in the same
county, or (b) in addition to this Mortgage, Mortgagee shall now or hereafter
hold one or more additional mortgages, liens, deeds of trust or other security
(directly or indirectly) for the Indebtedness upon other property in the State
in which the Premises are located (whether or not such property is owned by
Mortgagor or by others) or (c) both the circumstances described in clauses (a)
and (b) shall be true, then to the fullest extent permitted by law, Mortgagee
may, at its election, commence or consolidate in a single foreclosure action
all foreclosure proceedings against all such collateral securing the
Indebtedness (including the Mortgaged Property), which action may be brought or
consolidated in the courts of any county in which any of such collateral is
located. Mortgagor acknowledges that the right to maintain a consolidated
foreclosure action is a specific inducement to Mortgagee to extend the
Indebtedness, and Mortgagor expressly and irrevocably waives any objections to
the commencement or consolidation of the foreclosure proceedings in a single
action and any objections to the laying of venue or based on the grounds of
forum non conveniens which it may now or hereafter have. Mortgagor further
agrees that if Mortgagee shall be prosecuting one or 16




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more foreclosure or other proceedings against a portion of the Mortgaged
Property or against any collateral other than the Mortgaged Property, which
collateral directly or indirectly secures the Indebtedness, or if Mortgagee
shall have obtained a judgment of foreclosure and sale or similar judgment
against such collateral, then, whether or not such proceedings are being
maintained or judgments were obtained in or outside the State in which the
Premises are located, Mortgagee may commence or continue foreclosure
proceedings and exercise its other remedies granted in this Mortgage against
all or any part of the Mortgaged Property and Mortgagor waives any objections
to the commencement or continuation of a foreclosure of this Mortgage or
exercise of any other remedies hereunder based on such other proceedings or
judgments, and waives any right to seek to dismiss, stay, remove, transfer or
consolidate either any action under this Mortgage or such other proceedings on
such basis. Neither the commencement nor continuation of proceedings to
foreclose this Mortgage nor the exercise of any other rights hereunder nor the
recovery of any judgment by Mortgagee in any such proceedings shall prejudice,
limit or preclude Mortgagees right to commence or continue one or more
foreclosure or other proceedings or obtain a judgment against any other
collateral (either in or outside the State in which the Premises are located)
which directly or indirectly secures the Indebtedness, and Mortgagor expressly
waives any objections to the commencement of, continuation of, or entry of a
judgment in such other proceedings or exercise of any remedies in such
proceedings based upon any action or judgment connected to this Mortgage, and
Mortgagor also waives any right to seek to dismiss, stay, remove, transfer or
consolidate either such other proceedings or any action under this Mortgage on
such basis. It is expressly understood and agreed that to the fullest extent
permitted by law, Mortgagee may, at its election, cause the sale of all
collateral which is the subject of a single foreclosure action at either a
single sale or at multiple sales conducted simultaneously and take such other
measures as are appropriate in order to effect the agreement of the parties to
dispose of and administer all collateral securing the Indebtedness (directly or
indirectly) in the most economical and least time-consuming manner. 30. Successors and Assigns. All covenants of Mortgagor contained in this
Mortgage are imposed solely and exclusively for the benefit of Mortgagee and
its successors and assigns, and no other person or entity shall have standing
to require compliance with such covenants or be deemed, under any
circumstances, to be a beneficiary of such covenants, any or all of which may
be freely waived in whole or in part by Mortgagee at any time if in its sole
discretion it deems such waiver advisable. All such covenants of Mortgagor
shall run with the land and bind Mortgagor, the successors and assigns of
Mortgagor (and each of them) and all subsequent owners, encumbrancers and
tenants of the Mortgaged Property, and shall inure to the benefit of Mortgagee,
its successors and assigns. The word Mortgagor shall be construed as if it
read Mortgagors whenever the sense of this Mortgage so requires and if there
shall be more than one Mortgagor, the obligations of Mortgagors shall be joint
and several. 31. No Waivers, etc. Any failure by Mortgagee to insist upon the strict
performance by Mortgagor of any of the terms and provisions of this Mortgage
shall not be deemed to be a waiver of any of the terms and provisions hereof,
and Mortgagee, notwithstanding any such failure, shall have the right
thereafter to insist upon the strict performance by Mortgagor of any and all of
the terms and provisions of this Mortgage to be performed by Mortgagor.
Mortgagee may release, regardless of consideration and without the necessity
for any notice to or consent by the holder of any subordinate lien on the
Mortgaged Property, any part of the security held for the obligations secured
by this Mortgage without, as to 17




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the remainder of the security, in anywise impairing or affecting the lien
of this Mortgage or the priority of such lien over any subordinate lien. 32. Governing Law, etc. This Mortgage shall be governed by and construed
in accordance with the laws of [___], except that Mortgagor expressly
acknowledges that by its terms the Credit Agreement and the Notes shall be
governed and construed in accordance with the laws of the State of New York,
without regard to principles of conflict of law, and for purposes of
consistency, Mortgagor agrees that in any in personam proceeding related to
this Mortgage the rights of the parties to this Mortgage shall also be governed
by and construed in accordance with the laws of the State of New York governing
contracts made and to be performed in that State, without regard to principles
of conflict of law. 33. Certain Definitions. Unless the context clearly indicates a contrary
intent or unless otherwise specifically provided herein, words used in this
Mortgage shall be used interchangeably in singular or plural form and the word
Mortgagor shall mean each Mortgagor or any subsequent owner or owners of the
Mortgaged Property or any part thereof or interest therein, the word
Mortgagee shall mean Mortgagee or any successor agent for the Lenders, the
word Notes or Guarantee shall mean the Notes, Credit Agreement, the
Guarantee, the Collateral Agreement, or any other evidence of indebtedness
secured by this Mortgage, the word person shall include any individual,
corporation, partnership, trust, unincorporated association, government,
governmental authority, or other entity, and the words Mortgaged Property
shall include any portion of the Mortgaged Property or interest therein.
Whenever the context may require, any pronouns used herein shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns and pronouns shall include the plural and vice versa. The captions in
this Mortgage are for convenience or reference only and in no way limit or
amplify the provisions hereof. [34. Maximum Secured Amount. With respect to this Mortgage on properties
located in [___], the maximum amount secured hereby is $___.
Property located in [___] may be released from this Mortgage upon payment
of the above amount secured in [___]. The aggregate maximum Indebtedness
under the Credit Agreement is $[___].] This Mortgage has been duly executed by Mortgagor on the date first above
written. DOANE PET CARE COMPANYBy:Name: 18