Second Amended and Restated Credit Guaranty Agreement


    


     

    


     

    


     

    SECOND
      AMENDED AND RESTATED

    CREDIT
      AND GUARANTY AGREEMENT

     

    dated
      as
      of May 25, 2006

     

    among,

     

    SIMMONS
      BEDDING COMPANY, 

    as
      Company,

     

    THL-SC
      BEDDING COMPANY AND CERTAIN SUBSIDIARIES OF COMPANY,

    as
      Guarantors,

     

    THE
      FINANCIAL INSTITUTIONS LISTED HEREIN,

    as
      Lenders,

     

    GOLDMAN
      SACHS CREDIT PARTNERS L.P.,

    as
      Sole
      Bookrunner, Lead Arranger and as Syndication Agent,

     

    DEUTSCHE
      BANK AG, NEW YORK BRANCH,

    as
      Administrative Agent and Collateral Agent

     

    


    GENERAL
      ELECTRIC CAPITAL CORPORATION,

    as
      Co-Documentation Agent 

     

    and

     

    CIT
      LENDING SERVICES CORPORATION,

    as
      Co-Documentation Agent

    


    ________________________________________________________

     

    TERM
      LOAN AND REVOLVING CREDIT FACILITIES

     

    ________________________________________________________

     

    


    



    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    



    TABLE
      OF CONTENTS 

     

    
      
        	 	 Page
	
                SECTION
                  1. DEFINITIONS; INTERPRETATION

              	
                2

              
	
                1.1

              	
                Defined
                  Terms

              	
                2

              
	
                1.2

              	
                Accounting
                  Terms

              	
                36

              
	
                1.3

              	
                Interpretation,
                  etc.

              	
                37

              
	
                 

                SECTION
                  2. CREDIT EXTENSIONS

              	
                 

                37

              
	
                2.1

              	
                Tranche
                  D Term Loans

              	
                37

              
	
                2.2

              	
                Revolving
                  Loans and Swing Line Loans

              	
                38

              
	
                2.3

              	
                Letters
                  of Credit

              	
                40

              
	
                2.4

              	
                Pro
                  Rata Shares

              	
                45

              
	
                2.5

              	
                Use
                  of Proceeds

              	
                45

              
	
                2.6

              	
                Notes;
                  Register; Lenders’ Books and Records

              	
                46

              
	
                2.7

              	
                Interest
                  Payments

              	
                47

              
	
                2.8

              	
                Conversion;
                  Continuation

              	
                48

              
	
                2.9

              	
                Post-Maturity
                  Interest

              	
                49

              
	
                2.10

              	
                Fees

              	
                49

              
	
                2.11

              	
                Scheduled
                  Payments

              	
                50

              
	
                2.12

              	
                Voluntary
                  Prepayments/Commitment Reductions

              	
                51

              
	
                2.13

              	
                Mandatory
                  Prepayments/Commitment Reductions

              	
                54

              
	
                2.14

              	
                Application
                  of Prepayments and Reductions of Commitments

              	
                 

                55

              
	
                2.15

              	
                Collateral
                  Proceeds; Guaranty Payments

              	
                56

              
	
                2.16

              	
                General
                  Provisions Regarding Payments

              	
                57

              
	
                2.17

              	
                Ratable
                  Sharing

              	
                57

              
	
                2.18

              	
                Making
                  or Maintaining Eurodollar Rate Loans

              	
                58

              
	
                2.19

              	
                Increased
                  Costs; Capital Adequacy

              	
                60

              
	
                2.20

              	
                Taxes;
                  Withholding, Etc.

              	
                61

              
	
                2.21

              	
                Capital
                  Adequacy Adjustment

              	
                64

              
	
                2.22

              	
                Obligation
                  to Mitigate

              	
                64

              
	
                2.23

              	
                Defaulting
                  Lenders

              	
                65

              
	
                2.24

              	
                Removal
                  or Replacement of a Lender

              	
                66

              
	
                2.25

              	
                Incremental
                  Facilities

              	
                67

              
	
                 

                SECTION
                  3. CONDITIONS PRECEDENT

              	
                 

                69

              
	
                3.1

              	
                Effective
                  Date

              	
                69

              
	
                3.2

              	
                Conditions
                  to Each Credit Extension

              	
                70

              
	
                 

                SECTION
                  4. REPRESENTATIONS AND WARRANTIES

              	
                 

                71

              
	
                4.1

              	
                Organization
                  and Powers

              	
                71

              
	
                4.2

              	
                Qualification
                  and Good Standing

              	
                71

              
	
                4.3

              	
                Subsidiaries

              	
                72

              
	
                4.4

              	
                Authorization
                  of Borrowing; No Conflict

              	
                72

              
	
                4.5

              	
                Governmental
                  Consents

              	
                72

              
	
                4.6

              	
                Binding
                  Obligation

              	
                73

              
	
                4.7

              	
                Valid
                  Issuance of the Senior Subordinated Notes

              	
                73

              
	
                4.8

              	
                Financial
                  Condition

              	
                73

              
	
                4.9

              	
                No
                  Material Adverse Change

              	
                73

              
	
                4.10

              	
                Litigation;
                  Adverse Facts

              	
                73

              
	
                4.11

              	
                Payment
                  of Taxes

              	
                74

              
	
                4.12

              	
                Title
                  to Properties; Real Property

              	
                74

              
	
                4.13

              	
                Collateral

              	
                74

              
	
                4.14

              	
                Environmental

              	
                75

              
	
                4.15

              	
                No
                  Defaults

              	
                76

              
	
                4.16

              	
                Governmental
                  Regulation

              	
                76

              
	
                4.17

              	
                Margin
                  Stock

              	
                76

              
	
                4.18

              	
                Employee
                  Matters

              	
                76

              
	
                4.19

              	
                Employee
                  Benefit Plans

              	
                76

              
	
                4.20

              	
                [Reserved]

              	
                77

              
	
                4.21

              	
                Solvency

              	
                77

              
	
                4.22

              	
                Certain
                  Related Agreements

              	
                77

              
	
                4.23

              	
                [Reserved]

              	
                77

              
	
                4.24

              	
                Disclosure

              	
                77

              
	
                4.25

              	
                Intellectual
                  Property

              	
                77

              
	
                4.26

              	
                Patriot
                  Act

              	
                78

              
	
                 

                SECTION
                  5. AFFIRMATIVE COVENANTS

              	
                 

                78

              
	
                5.1

              	
                Financial
                  Statements and Other Reports

              	
                78

              
	
                5.2

              	
                Legal
                  Existence, etc.

              	
                82

              
	
                5.3

              	
                Payment
                  of Taxes and Claims

              	
                82

              
	
                5.4

              	
                Maintenance
                  of Properties

              	
                82

              
	
                5.5

              	
                Insurance

              	
                82

              
	
                5.6

              	
                Inspection
                  Rights; Lender Meeting

              	
                83

              
	
                5.7

              	
                Compliance
                  with Laws, Etc.

              	
                83

              
	
                5.8

              	
                Environmental
                  Matters

              	
                83

              
	
                5.9

              	
                Subsidiaries

              	
                85

              
	
                5.10

              	
                [Reserved]

              	
                86

              
	
                5.11

              	
                [Reserved]

              	
                86

              
	
                5.12

              	
                Matters
                  Relating to Additional Real Property Collateral

              	
                86

              
	
                5.13

              	
                Further
                  Assurances

              	
                88

              
	
                 

                SECTION
                  6. NEGATIVE COVENANTS

              	
                 

                88

              
	
                6.1

              	
                Indebtedness

              	
                88

              
	
                6.2

              	
                Liens

              	
                91

              
	
                6.3

              	
                Investments

              	
                92

              
	
                6.4

              	
                [Reserved]

              	
                95

              
	
                6.5

              	
                Restricted
                  Junior Payments

              	
                95

              
	
                6.6

              	
                Financial
                  Covenants

              	
                97

              
	
                6.7

              	
                Fundamental
                  Changes; Asset Sales

              	
                99

              
	
                6.8

              	
                Consolidated
                  Capital Expenditures

              	
                101

              
	
                6.9

              	
                Sales
                  and Lease-Backs

              	
                101

              
	
                6.10

              	
                Transactions
                  with Shareholders and Affiliates

              	
                101

              
	
                6.11

              	
                Amendments
                  or Waivers of Certain Documents

              	
                102

              
	
                6.12

              	
                Conduct
                  of Company Business

              	
                103

              
	
                6.13

              	
                Special
                  Covenants of Holdings

              	
                103

              
	
                6.14

              	
                Fiscal
                  Year

              	
                103

              
	
                6.15

              	
                Securities
                  of Company and Subsidiaries; Restrictions on Subsidiaries

              	
                 

                103

              
	
                6.16

              	
                Designated
                  Senior Debt

              	
                103

              
	
                 

                SECTION
                  7. GUARANTY

              	
                 

                104

              
	
                7.1

              	
                Guaranty
                  of the Obligations

              	
                104

              
	
                7.2

              	
                Limitation
                  on Amount Guarantied

              	
                104

              
	
                7.3

              	
                Payment
                  by Guarantors

              	
                105

              
	
                7.4

              	
                Liability
                  of Guarantors Absolute

              	
                105

              
	
                7.5

              	
                Waivers
                  by Guarantors

              	
                107

              
	
                7.6

              	
                Guarantors’
                  Rights of Subrogation, Contribution, Etc.

              	
                108

              
	
                7.7

              	
                Subordination
                  of Other Obligations

              	
                108

              
	
                7.8

              	
                Continuing
                  Guaranty

              	
                109

              
	
                7.9

              	
                Authority
                  of Guarantors or Company

              	
                109

              
	
                7.10

              	
                Financial
                  Condition of Company and Guarantors

              	
                109

              
	
                7.11

              	
                Bankruptcy,
                  Etc.

              	
                109

              
	
                7.12

              	
                Discharge
                  of Guaranty Upon Sale of Guarantor

              	
                110

              
	
                 

                SECTION
                  8. EVENTS OF DEFAULT

              	
                 

                110

              
	
                8.1

              	
                Events
                  of Default

              	
                110

              
	
                8.2

              	
                Certain
                  Option of Lenders

              	
                113

              
	
                8.3

              	
                Company’s
                  Right to Cure Financial Performance Covenants

              	
                 

                114

              
	
                 

                SECTION
                  9. AGENTS

              	
                 

                114

              
	
                9.1

              	
                Appointment
                  of Agents

              	
                114

              
	
                9.2

              	
                Powers
                  and Duties

              	
                115

              
	
                9.3

              	
                General
                  Immunity

              	
                115

              
	
                9.4

              	
                Agent
                  Entitled to Act as Lender

              	
                116

              
	
                9.5

              	
                Lenders’
                  Representations and Warranties

              	
                116

              
	
                9.6

              	
                Right
                  to Indemnity

              	
                117

              
	
                9.7

              	
                Successor
                  Administrative Agent and Swing Line Lender

              	
                117

              
	
                9.8

              	
                Collateral
                  Documents and Guaranties

              	
                118

              
	
                 

                SECTION
                  10. MISCELLANEOUS

              	
                 

                120

              
	
                10.1

              	
                Notices

              	
                120

              
	
                10.2

              	
                Expenses

              	
                120

              
	
                10.3

              	
                Indemnity

              	
                121

              
	
                10.4

              	
                Set-Off

              	
                122

              
	
                10.5

              	
                Amendments
                  and Waivers

              	
                122

              
	
                10.6

              	
                Successors
                  and Assigns; Participations

              	
                124

              
	
                10.7

              	
                Independence
                  of Covenants

              	
                127

              
	
                10.8

              	
                Survival
                  of Representations, Warranties and Agreements

              	
                127

              
	
                10.9

              	
                No
                  Waiver; Remedies Cumulative

              	
                127

              
	
                10.10

              	
                Marshalling;
                  Payments Set Aside

              	
                127

              
	
                10.11

              	
                Severability

              	
                128

              
	
                10.12

              	
                Obligations
                  Several; Independent Nature of Lenders’ Rights

              	
                 

                128

              
	
                10.13

              	
                Headings

              	
                128

              
	
                10.14

              	
                APPLICABLE
                  LAW

              	
                128

              
	
                10.15

              	
                CONSENT
                  TO JURISDICTION AND SERVICE OF PROCESS

              	
                 

                128

              
	
                10.16

              	
                WAIVER
                  OF JURY TRIAL

              	
                129

              
	
                10.17

              	
                Confidentiality

              	
                129

              
	
                10.18

              	
                Counterparts;
                  Effectiveness

              	
                130

              
	
                10.19

              	
                Maximum
                  Amount

              	
                130

              
	
                10.20

              	
                Reaffirmation
                  and Grant of Security Interest

              	
                131

              
	
                10.21

              	
                Amendment
                  and Restatement

              	
                132

              
	
                10.22

              	
                Patriot
                  Act

              	
                132

              


      

      


    

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    



    SCHEDULES:

     

    
      	 	
              1.1(b)

            	
              Term
                Loan Amounts, Revolving Loan Commitments and Pro Rata
                Shares

            


    

    
      	 	
              2.1(a)

            	
              Continuing
                Lenders

            


    

    
      	 	
              4.1

            	
              Subsidiaries
                of Holdings

            


    

    
      	 	
              4.12

            	
              Real
                Property Assets

            


    

    
      	 	
              6.1

            	
              Certain
                Existing Indebtedness

            


    

    
      	 	
              6.2

            	
              Certain
                Existing Liens

            


    

    
      	 	
              6.3

            	
              Certain
                Existing Investments

            


    

    


    


    EXHIBITS:

     

    
      	 	
              A-1

            	
              Funding
                Notice

            


    

    
      	 	
              A-2

            	
              Conversion/Continuation
                Notice

            


    

    
      	 	
              A-3

            	
              Request
                for Issuance

            


    

    
      	 	
              B-1

            	
              Tranche
                D Term Loan Note

            


    

    
      	 	
              B-2

            	
              New
                Term Loan Note

            


    

    
      	 	
              B-3

            	
              Revolving
                Note

            


    

    
      	 	
              B-4

            	
              Swing
                Line Note

            


    

    
      	 	
              C

            	
              Compliance
                Certificate

            


    

    
      	 	
              D

            	
              Opinion
                of Weil, Gotshal & Manges LLP 

            


    

    
      	 	
              E

            	
              Assignment
                Agreement

            


    

    
      	 	
              F

            	
              Certificate
                Re Non-Bank Status

            


    

    
      	 	
              G

            	
              Solvency
                Certificate

            


    

    
      	 	
              H

            	
              Effective
                Date Certificate

            


    

    
      	 	
              I

            	
              Counterpart
                Agreement

            


    

    
      	 	
              J

            	
              Pledge
                and Security Agreement

            


    

    
      	 	
              K

            	
              Mortgage

            


    

    
      	 	
              L

            	
              Certain
                Adjustments to EBITDA

            


    

    
      	 	
              M

            	
              Joinder
                Agreement

            


    

    


    



    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    



    SECOND
      AMENDED AND RESTATED

    CREDIT
      AND GUARANTY AGREEMENT

     

     

        This
      SECOND AMENDED
      AND RESTATED CREDIT
      AND GUARANTY AGREEMENT
      dated as
      of May 25, 2006, is entered into by and among SIMMONS
      BEDDING COMPANY (formerly
      known as Simmons Company), a Delaware corporation (“Company”),
      THL-SC
      BEDDING COMPANY,
      a
      Delaware corporation (“Holdings”),
      CERTAIN SUBSIDIARIES OF COMPANY PARTY HERETO,
      as
      Guarantors, GOLDMAN SACHS CREDIT PARTNERS L.P.
      (“GSCP”),
      as
      sole bookrunner, lead arranger and syndication agent, THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HERETO
      (together with each such institution’s successors and permitted assigns, each a
“Lender”),
      DEUTSCHE
      BANK AG, NEW YORK BRANCH (“DBNY”),
      as
      administrative agent for Lenders (together with its permitted successors in
      such
      capacity, “Administrative Agent”)
      and as
      collateral agent for Lenders (together with its permitted successors in such
      capacity, “Collateral
      Agent”),
      GENERAL
      ELECTRIC CAPITAL CORPORATION
      (“GE
      Capital”)
      as
      Co-Documentation Agent, and
      CIT LENDING SERVICES CORPORATION (“CIT”)
      as
      Co-Documentation Agent.

     

    R
      E C I T A L S

     

    WHEREAS,
      capitalized terms used herein having the meanings assigned to those terms in
      Section 1.1;

     

    WHEREAS,
      reference is made to that certain Amended and Restated Credit and Guaranty
      Agreement dated as of August 27, 2004 by and among Company, Holdings, certain
      subsidiaries of Company party thereto, GSCP, as sole bookrunner, joint lead
      arranger and as co-syndication agent, the financial institutions listed on
      the
      signature pages thereto (together with each such institutions successors and
      assigns, the “Existing
      Lenders”),
      UBSS,
      as joint lead arranger and co-syndication agent (“UBSS”),
      DBNY,
      as administrative agent and collateral agent, GE Capital as co-documentation
      agent and CIT, as co-documentation agent (as it may amended, restated,
      supplemented or otherwise modified from time to time, the “Existing
      Credit Agreement”)
      which
      amended and restated that certain Credit Agreement dated as of December 19,
      2003
      by and among THL Bedding Company, a Delaware corporation (“THL
      Company”),
      Holdings, GSCP, as sole bookrunner, joint lead arranger and as co-syndication
      agent, the financial institutions listed on the signature pages thereto, UBSS,
      as joint lead arranger and co-syndication agent, DBNY, as administrative agent
      and collateral agent, GE Capital as co-documentation agent and CIT, as
      co-documentation agent (as it may amended, restated, supplemented or otherwise
      modified from time to time, the “Original
      Credit Agreement”);

     

    WHEREAS,
      Company
      desires that certain Existing Lenders and other Lenders party hereto agree
      to
      amend and restate the Existing Credit Agreement in its entirety to (i) refinance
      the existing Tranche C Term Loans made under the Existing Credit Agreement
      (the
“Existing
      Tranche C Term Loans”)
      with
      the Tranche D Term Loans made hereunder; (ii) to provide for additional Tranche
      D Term Loans to refinance the Senior Unsecured Term Loans and (iii) make certain
      other changes as more fully set forth herein, which amendment and restatement
      shall become effective upon satisfaction of the conditions precedent set forth
      herein;

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    WHEREAS,
      Company
      has agreed to secure all of the Obligations by reaffirming its grant to
      Collateral Agent, on behalf of the Secured Parties, of a First Priority Lien
      on
      certain of its real and substantially all of its personal property, including
      a
      pledge of all of the capital stock of each of its Domestic Subsidiaries and
      65%
      of the capital stock of each of the Foreign Subsidiaries which is directly
      owned
      by Company; 

     

    WHEREAS,
      Holdings and certain Subsidiaries of Company have agreed to guarantee the
      Obligations and to secure their guaranties by reaffirming their grant to
      Collateral Agent, on behalf of the Secured Parties, of a First Priority Lien
      on
      certain of their real and substantially all of their respective personal
      property, including (i)
      a pledge
      of all of the capital stock of Company and (ii)
      a pledge
      of all of the capital stock of each Domestic Subsidiary which is a Subsidiary
      Guarantor and 65% of the capital stock of each Foreign Subsidiary which is
      directly owned by a Subsidiary Guarantor;

     

    WHEREAS,
      it is
      the intent of the parties hereto that this Agreement not
      constitute a novation of the obligations and liabilities of the parties under
      the Existing Credit Agreement and that this Agreement amend and restate in
      its
      entirety the Existing Credit Agreement; and

     

    WHEREAS,
      it is
      the intent of the Credit Parties to confirm that all Obligations of the Credit
      Parties under the other Credit Documents shall continue in full force and effect
      and that, from and after the Effective Date, all references to the “Credit
      Agreement”
      contained therein shall be deemed to refer to this Agreement.

     

    NOW,
      THEREFORE,
      in
      consideration of the premises and the agreements, provisions and covenants
      herein contained, Holdings, Company, each of its Subsidiaries party hereto,
      Lenders and Agents agree to amend and restate the Existing Credit Agreement
      as
      follows:

     

    SECTION
      1.   DEFINITIONS;
      INTERPRETATION

     

    1.1  Defined
      Terms

     

    .
      The
      following terms used herein, including (except to the extent specifically stated
      otherwise) the preamble, recitals, exhibits and schedules hereto, shall have
      the
      following meanings:

     

    “Acquisition”
means
      the acquisition of 84% of the outstanding capital stock of Simmons Holdco by
      THL
      Company on December 19, 2003.

     

    “Adjusted
      Eurodollar Rate”
means,
      for any Interest Rate Determination Date with respect to an Interest Period
      for
      a Eurodollar Rate Loan, the rate per annum obtained by dividing (i)
      the
      offered rate (rounded upward to the nearest 1/16 of one percent) appearing
      on
      the Dow Jones/Telerate Monitor on Telerate Access Service Page 3750 (British
      Bankers Association Settlement Rate) (or if such page or service is not
      available, any page reasonably determined by Administrative Agent to be the
      successor thereto) at or about 10:00 a.m. (New York time) on such Interest
      Rate
      Determination Date for U.S. dollar deposits of amounts in same day funds
      comparable to the principal amount of the Eurodollar Rate Loan for which the
      Adjusted Eurodollar Rate is then being determined with maturities comparable
      to
      such Interest Period, by (ii)
      the
      difference of (1)
      a
      percentage equal to 100%, minus (2)
      the
      stated maximum rate of all reserve requirements (including any marginal,
      emergency, supplemental, special or other reserves) applicable on such Interest
      Rate Determination Date to any member bank of the Federal Reserve System in
      respect of “Eurocurrency liabilities” as defined in Regulation D (or any
      successor category of liabilities under Regulation D). If for any reason the
      portion of the Adjusted Eurodollar Rate determined by reference to the mechanics
      of clause (i) of this definition is unavailable, as determined by Administrative
      Agent, such portion of Adjusted Eurodollar Rate for the applicable Interest
      Period shall mean the offered quotation (rounded upward to the nearest 1/16
      of
      one percent) to first class banks in the London interbank market by DBNY for
      U.S. dollar deposits of amounts in same day funds comparable to the principal
      amount of the Eurodollar Rate Loan of DBNY for which the Adjusted Eurodollar
      Rate is then being determined with maturities comparable to such Interest Period
      as of approximately 10:00 a.m. (New York time) on such Interest Rate
      Determination Date.

     

    
      
         

      

      
        2

        
          

        

      

      
         

      

    

    “Additional
      Mortgaged Policy”
has
      the
      meaning assigned to that term in Section 5.12.

     

    “Additional
      Mortgaged Property”
has
      the
      meaning assigned to that term in Section 5.12.

     

    “Adjusted
      Maximum Amount”
has
      the
      meaning assigned to that term in Section 7.2(b).

     

    “Administrative
      Agent”
has
      the
      meaning assigned to that term in the preamble hereto.

     

    “Adverse
      Proceeding”
means
      any action, suit, proceeding (whether administrative, judicial or otherwise),
      governmental investigation or arbitration (whether or not purportedly on behalf
      of Company or any of its Subsidiaries) at law or in equity, or before or by
      any
      federal, state, municipal or other governmental department, commission, board,
      bureau, agency or instrumentality, domestic or foreign (including any
      Environmental Claims), whether pending or, to the knowledge of Company or its
      Material Subsidiaries, threatened in writing against or affecting Company or
      any
      of its Subsidiaries or any property of Company or any of its
      Subsidiaries.

     

    “Affected
      Lender”
has
      the
      meaning assigned to that term in Section 2.18(b).

     

    “Affected
      Loans”
has
      the
      meaning assigned to that term in Section 2.18(b).

     

    “Affiliate,”
      as
      applied to any Person, means any other Person directly or indirectly
      controlling, controlled by, or under common control with, that Person. For
      the
      purposes of this definition, “control”
      (including, with correlative meanings, the terms “controlling,”“controlled by” and
      “under common control with”),
      as
      applied to any Person, means the possession, directly or indirectly, of the
      power to direct or cause the direction of the management and policies of that
      Person, whether through the ownership of voting securities or by contract or
      otherwise. Notwithstanding the foregoing, neither any Agent or any Lender shall
      be deemed to be an Affiliate of any Credit Parties or any Affiliate thereof.
      

     

    “Agent”
      means
      each of the Syndication Agent, Lead Arranger, Administrative Agent, Collateral
      Agent and Co-Documentation Agents.

     

    “Aggregate
      Payments”
has
      the
      meaning assigned to that term in Section 7.2(b).

     

    
      
         

      

      
        3

        
          

        

      

      
         

      

    

    “Agreement”
      means
      this Second Amended and Restated Credit and Guaranty Agreement, as it may be
      amended, restated, supplemented or otherwise modified from time to
      time.

     

    “Applicable Commitment Fee Percentage” means
      (i)
      0.50%
      per annum and (ii)
      0.375%
      per annum if and for so long as the Leverage Ratio in effect from time to time
      is less than 4.50:1.00; provided,
      (A)
      no
      change in the Applicable Commitment Fee Percentage shall be effective until
      three Business Days after the date on which Administrative Agent receives the
      financial statements and a Compliance Certificate pursuant to Section 5.1(d)
      calculating the Leverage Ratio, and (B)
      the
      Applicable Commitment Fee Percentage shall be 0.50% per annum, in each case
      for
      so long (but only for so long) as Company has not submitted to Administrative
      Agent the information described in clause (A) when required under Section 5.1(d).

     

    “Applicable Margin” means
      (i)
      for
      Tranche D Term Loans which are Base Rate Loans, 1.25% per annum and for Tranche
      D Term Loans which are Eurodollar Rate Loans, 2.25% per annum or (B) for Tranche
      D Term Loans which are Base Rate Loans, 1.00% per annum and for Tranche D Term
      Loans which are Eurodollar Rate Loans, 2.00% per annum upon the earlier of (and
      for so long as) (x) the Leverage Ratio in effect is less than 4.50:1.00 or
      (y)
      the Loans are rated at least B1 or better by Moody’s, (ii)
      for
      Swing Line Loans, 1.00% per annum, and (iii)
      for
      Revolving Loans, the applicable percentage per annum determined by reference
      to
      the Leverage Ratio in effect from time to time as set forth below:

     

    
      	
              Leverage
                Ratio

            	
              Applicable
                Margin for Revolving Loans which are Eurodollar
                Loans

            	
              Applicable
                Margin for Revolving Loans which are Base Rate
                Loans

            
	
              35.00:1.00

            	
              2.50%

            	
              1.50%

            
	
              <5.00:1.00
                and 34.50:1.00
                

            	
              2.25%

            	
              1.25%

            
	
              <4.50:1.00
                and 34.00:1.00

            	
              2.00%

            	
              1.00%

            
	
              <4.00:1.00
                and 33.50:1.00

            	
              1.75%

            	
              0.75%

            
	
              <3.50:1.00

            	
              1.50%

            	
              0.50%

            


    

    


    ;
      provided,
      (A)
      no
      change in the Applicable Margin shall be effective until three Business Days
      after the date on which Administrative Agent receives the financial statements
      and a Compliance Certificate pursuant to Section 5.1(d)
      calculating the Leverage Ratio which as of the Effective Date shall be the
      Leverage Ratio as of March 31, 2006 set forth in the Compliance Certificate
      delivered pursuant to Section 5.1(d)
      of the
      Existing Credit Agreement, and (B)
      the
      Applicable Margin for Revolving Loans shall be the applicable percentage per
      annum amount set forth opposite the greatest Leverage Ratio above, in each
      case
      for so long (but only for so long) as Company has not submitted to
      Administrative Agent the information described in clause (A) when required
      under
Section 5.1(d).
      The
      Applicable Margin with respect to any Series of New Term Loans shall be set
      forth in the Joinder Agreement for such Series.

     

    “Asset Sale”
means
      a
      sale, lease or sub-lease (as lessor or sublessor), transfer, conveyance or
      disposition to any Person of all or any part of Company’s or any of its
      Subsidiaries’ businesses, properties or assets, including, without limitation, a
      sale, transfer or other disposition of any Security of Company or any of its
      Subsidiaries.

     

    
      
         

      

      
        4

        
          

        

      

      
         

      

    

    “Assignment Agreement”
means
      an Assignment and Assumption Agreement in the form of Exhibit
      E.

     

    “Authorized Officers”
means,
      as applied to any Person, (i)
      its
      chairman of the board (if an officer) or president or any vice president, and
      (ii)
      its
      chief financial officer, treasurer or any assistant treasurer.

     

    “Bankruptcy Code”
means
      Title 11 of the United States Code entitled “Bankruptcy”, as now and hereafter
      in effect, or any successor statute.

     

    “Base Rate”
means,
      at any time, the higher of (i)
      the
      Prime Rate, and (ii)
      the rate
      equal to the sum of (a)
      0.50%,
plus (b)
      the
      Federal Funds Effective Rate.

     

    “Base Rate Loan”
means
      a
      Loan bearing interest at a rate determined by reference to the Base
      Rate.

     

    “Beneficiary”
means
      Administrative Agent, each of the other Agents, each of the Lenders, and each
      Lender Counterparty. 

     

    “Business Day”
means
      any day excluding Saturday, Sunday and any day which is a legal holiday under
      the laws of the State of New York or is a day on which banking institutions
      located in such state are authorized or required by law or other governmental
      action to close, and with respect to all notices, determinations, fundings
      and
      payments in connection with the Adjusted Eurodollar Rate or any Eurodollar
      Rate
      Loans, that is also a day for trading by and between banks in Dollar deposits
      in
      the London interbank market.

     

    “Capital Lease”
means,
      as applied to any Person, any lease of any property (whether real, personal
      or
      mixed) by that Person as lessee that, in conformity with GAAP, is accounted
      for
      as a capital lease on the balance sheet of that Person.

     

    “Captive
      Insurance Subsidiary”
has
      the
      meaning assigned to that term in Section 6.3(i).

     

    “Cash”
means
      money, currency or a credit balance in any demand or deposit
      account.

     

    “Cash Equivalents”
means,
      as at any date of determination, (i) marketable
      securities (a) issued
      or
      directly and unconditionally guaranteed as to interest and principal by the
      United States Government or (b) issued
      by
      any agency or instrumentality of the United States the obligations of which
      are
      backed by the full faith and credit of the United States, in each case maturing
      within one year after such date; (ii) marketable
      general obligations issued by any state of the United States of America or
      any
      political subdivision of any such state or any public instrumentality thereof,
      in each case maturing within one year after such date and having, at the time
      of
      the acquisition thereof, a rating of “A” or better from either Standard &
Poor’s Ratings Group (“S&P”)
      or
      Moody’s; (iii) commercial
      paper maturing no more than one year from the date of creation thereof and
      having, at the time of the acquisition thereof, a rating of at least A-1 from
      S&P or at least P-1 from Moody’s; (iv) certificates
      of deposit, time deposits, eurodollar time deposits or bankers’ acceptances
      maturing within one year after such date and issued or accepted by any Lender
      or
      by any commercial bank organized under the laws of the United States
      of
      America or any state thereof or the District of Columbia that has capital and
      surplus in excess of $500,000,000; (v) repurchase
      obligations for underlying securities of the types described in clauses (i),
      (ii) and (iv) above entered into with any financial institution meeting the
      qualifications specified in clause (iv) above; and (vi) shares
      of
      any money market mutual fund that invests substantially all of its assets in
      the
      types of investments referred to in clauses (i) through (iv) above or in
      Dollars.

     

    
      
         

      

      
        5

        
          

        

      

      
         

      

    

    “Certificate re Non-Bank Status”
means
      a
      certificate in the form of Exhibit
      F.

     

    “CFO Certification”
means,
      with respect to the financial statements for which such certification is
      required, the certification of the chief financial officer of Company that
      such
      financial statements fairly present, in all material respects, the financial
      condition of Company and its Subsidiaries as at the dates indicated and the
      results of their operations and their cash flows for the periods indicated,
      subject to (in the case of unaudited financial statements) changes resulting
      from audit and normal year-end adjustments and, in the case of monthly financial
      statements, the absence of footnotes.

     

    “Change
      of Control”
means
      the earlier to occur of (a)
      the
      Equity Investors shall cease to have the power, directly or indirectly, to
      vote
      or direct the voting of equity Securities having a majority of the ordinary
      voting power for the election of directors of Holdings; provided, that the
      occurrence of the foregoing event shall not be deemed a Change of Control
      if,

     

    
      	 	
              (i)

            	
              any
                time prior to the consummation of an initial public offering of either
                Parent or Holdings, and for any reason whatsoever, (A) the Equity
                Investors otherwise have the right to designate (and does so designate)
                a
                majority of the board of directors of Holdings or (B) the Equity
                Investors
                own of record and beneficially, directly or indirectly, an amount
                of
                common stock of Holdings equal to an amount of more than fifty percent
                (50%) of the amount of common stock of Holdings owned, directly or
                indirectly, by the Equity Investors of record and beneficially as
                of the
                Closing Date and such ownership by the Equity Investors represents
                the
                largest single block of voting securities of Holdings held by any
                Person
                or related group for purposes of Section 13(d) of the Securities
                and
                Exchange Act of 1934, as amended,
                or

            


    

     

    
      	 	
              (ii)

            	
              at
                any time after the consummation of an initial public offering of
                either
                Parent or Holdings, and for any reason whatsoever, (A) no “person” or
                “group” (as such terms are used in sections 13(d) and 14(d) of the
                Securities Exchange Act of 1934, as amended, but excluding any employee
                benefit plan of such Person and its Subsidiaries, and any person
                or entity
                acting in its capacity as trustee, agent or other fiduciary or
                administrator of any such plan), excluding the Equity Investors,
                shall
                become the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5
                under such Act), directly or indirectly, of more than the greater
                of (x)
                thirty-five percent (35%) of the then outstanding voting stock of
                Holdings
                or (y) the percentage of the then outstanding voting stock of Holdings
                owned beneficially, directly or indirectly, by the Equity Investors,
                (B)
                during any period of twelve (12) consecutive months, the board of
                directors of Holdings shall consist of a majority of the Continuing
                Directors or (C) the Equity Investors have the power, directly or
                indirectly, to vote or direct the voting of at least thirty percent
                (30%)
                of the voting of securities having a majority of the ordinary voting
                power
                for the election of directors of Holdings;
                or

            


    

     

    
      
         

      

      
        6

        
          

        

      

      
         

      

    

    (b) any
      “Change of Control” (or any comparable term) in any document pertaining to the
      Subordinated Indebtedness with an aggregate outstanding principal amount in
      excess of $20,000,000; or

     

    (c) Holdings
      shall cease to own 100% of the equity Securities of Company. 

     

    “CIT”
has
      the
      meaning assigned to that term in the preamble hereto.

     

    “Class”
means
      (i)
      with
      respect to Lenders, each following class of Lenders: (a)
      Lenders
      having Tranche D Term Loan Exposure, (b)
      Lenders
      having Revolving Credit Exposure (including Swing Line Lender), and (c)
      Lenders
      having New Term Loan Exposure of each Series, and (ii)
      with
      respect to Loans, each of the following class of Loans: (a)
      Tranche
      D Term Loans, (b)
      Revolving Loans (including Swing Line Loans) and (c)
      each
      Series of New Term Loans.

     

    “Closing Date”
means
      December 19, 2003, the date the loans made under the Original Credit Agreement
      were made.

     

    “Co-Documentation
      Agents”
means
      each of, GE Capital and CIT in its capacity as a co-documentation
      agent.

     

    “Collateral”
means
      all of the properties and assets (including capital stock) in which Liens are
      purported to be granted by the Collateral Documents.

     

    “Collateral
      Agent”
has
      the
      meaning assigned to that term in the preamble hereto.

     

    “Collateral Documents”
means
      the Pledge and Security Agreement, the Mortgages and any other documents,
      instruments or agreements delivered by any Credit Party pursuant to this
      Agreement or any of the other Credit Documents in order to grant or perfect
      Liens on any assets of such Credit Party as security for the
      Obligations.

     

    “Collateral
      Questionnaire”
means
      a
      certificate of an Authorized Officer in a form reasonably satisfactory to
      Collateral Agent that provides information with respect to the personal or
      mixed
      property of each Credit Party.

     

    “Commercial Letter of Credit”
means
      any letter of credit or similar instrument issued for the purpose of providing
      the primary payment mechanism in connection with the purchase of any materials,
      goods or services by Company or any of its Subsidiaries in the ordinary course
      of business of Company or such Subsidiary.

     

    “Commitments”
means,
      collectively, the Swing Line Loan Commitments, the Revolving Loan Commitments,
      the New Revolving Loan Commitments and the New Term Loan
      Commitments.

     

    “Company”
has
      the
      meaning assigned to that term in the preamble hereto.

     

    
      
         

      

      
        7

        
          

        

      

      
         

      

    

    “Compliance Certificate”
means
      a
      certificate executed by an Authorized Officer in the form of Exhibit
      C.

     

    “Consolidated
      Adjusted EBITDA”
means,
      for any period, without duplication, the sum of the amounts for such period
      of
(i)
      Consolidated Net Income, plus
      to the
      extent the following amounts were deducted in calculating Consolidated Net
      Income: (ii)
      Consolidated Interest Expense, plus (iii)
      provisions for taxes based on income, including but not limited to (without
      duplication) taxes imposed in lieu of income-based taxes, such as those taxes
      based upon gross receipts, net worth, equity, capital or property values (except
      normal real and personal property taxes) and the like, to the extent that such
      alternative tax provisions do not exceed $2,000,000 in the aggregate for any
      Fiscal Year, plus (iv)
      total
      depreciation expense, plus (v)
      total
      amortization expense, plus (vi)
      Management Fees, plus (vii) ESOP
      expenses, plus (viii)
      the
      aggregate amount of the fees, costs and cash expenses paid by Company in
      connection with the consummation of the Acquisition (including, without
      limitation, bonus and option payments) for such period, plus (ix)
      other
      non-cash items reducing Consolidated Net Income (including, without limitation,
      non-cash purchase accounting adjustments and debt extinguishment costs but
      excluding accruals of expenses and the establishment of reserves in the ordinary
      course of business), plus (x)
      the Cure
      Amount, if any, received by Company in respect of such period, plus (xi)
      any
      extraordinary, unusual or non-recurring gains or losses or charges or credits,
      including, but not limited to, any expenses relating to the Acquisition, the
      Mergers and the Related Agreements, plus (xii)
      any
      reasonable expenses or charges related to any issuance of Securities,
      Investments permitted under Section 6.3,
      Permitted Acquisitions, recapitalizations, Asset Sales permitted by Section 6.7
      or
      Indebtedness permitted to be incurred under Section 6.1,
      less
      other
      non-cash items increasing Consolidated Net Income (other than accruals of
      revenue or reversals of reserves in the ordinary course of business), all of
      the
      foregoing as determined on a consolidated basis for Company and its Subsidiaries
      in conformity with GAAP; provided,
      that
      for the periods set forth on Exhibit
      L,
      Consolidated Adjusted EBITDA shall be the amount set forth opposite such period
      on Exhibit
      L.

     

    “Consolidated Capital
      Expenditures”
means,
      for any period, the sum of (i)
      the
      aggregate of all expenditures (whether paid in cash or other consideration
      or
      accrued as a liability and including that portion of Capital Leases which is
      capitalized on the consolidated balance sheet of Company and its Subsidiaries)
      by Company and its Subsidiaries during that period that, in conformity with
      GAAP, are included in “additions to property, plant or equipment” or comparable
      items reflected in the consolidated statement of cash flows of Company and
      its
      Subsidiaries; provided,
      however,
      that
      Consolidated Capital Expenditures shall not include (i) any
      expenditures by Company or any of its Subsidiaries during that period in
      connection with a Permitted Acquisition or, (ii) capital
      expenditures arising from deployment of any Proposed Reinvestment Proceeds
      or
      the Net Cash Proceeds of any issuance of Securities not otherwise required
      to
      repay the Loans pursuant to Section 2.13(b)
      or
(iii) any
      expenditures made with respect to the original acquisition of any property
      that
      has been transferred pursuant to a Permitted Sale/Lease-Back Transaction
      permitted by Section 6.9.

     

    “Consolidated Cash Interest Expense”
means,
      for any period, Consolidated Interest Expense for such period; provided,
      however,
      any
(i) interest
      expense not payable in Cash (including amortization of discount and amortization
      of debt issuance costs), but excluding, however, any amounts referred to in
      Section 2.10
      payable
      on or before the Effective Date and (ii) any
      costs
      associated with mark-to-market changes in Interest Rate Agreements and any
      other
      charges or payments related to any Interest Rate Agreements, in each case,
      shall
      be excluded from the calculation of Consolidated Cash Interest
      Expense.

     

    
      
         

      

      
        8

        
          

        

      

      
         

      

    

    “Consolidated Current Assets”
means,
      as at any date of determination, the total assets of Company and its
      Subsidiaries on a consolidated basis that may properly be classified as current
      assets in conformity with GAAP, excluding (i)
      Cash and
      Cash Equivalents, (ii)
      assets
      (other than inventory) that are held for sale and (iii)
      assets
      pertaining to the Retail Business (including inventory pertaining to the Retail
      Business) that are held for sale.

     

    “Consolidated Current Liabilities”
means,
      as at any date of determination, the total liabilities of Company and its
      Subsidiaries on a consolidated basis that may properly be classified as current
      liabilities in conformity with GAAP, excluding any current liabilities with
      respect to long-term Indebtedness, excluding liabilities associated with the
      Retail Business that are held for sale.

     

    “Consolidated
      Excess Cash Flow”
means,
      for any period, an amount (if positive) equal to the difference of (a) the
      sum,
      without duplication, of the amounts for such period of (i) Consolidated
      Adjusted EBITDA, plus (ii) the
      Consolidated Working Capital Adjustment (excluding any non-cash adjustments
      to
      Consolidated Working Capital Adjustment), minus (b) the
      sum, without duplication, of the amounts for such period of (i) voluntary
      prepayments (but excluding voluntary prepayments of Term Loans pursuant to
      Section 2.12(a)
      and
      repurchases of Term Loans made pursuant to Section 2.12),
      mandatory prepayments pursuant to Section 2.13(d)
      and
      scheduled repayments of Consolidated Total Debt (excluding repayments of
      Revolving Loans or Swing Line Loans except to the extent the Revolving Loan
      Commitments are permanently reduced in connection with such repayments),
plus (ii) Consolidated
      Capital Expenditures (net of any proceeds of any related financings with respect
      to such expenditures), plus (iii) Consolidated
      Cash Interest Expense (without giving effect to the proviso set forth in the
      definition thereof), plus (iv) the
      provision for current taxes based on income of Company and its Subsidiaries
      and
      payable in cash with respect to such period, plus (v) Management
      Fees actually paid in cash during such period, plus (vi) the
      cash
      portion of any purchase price payments made during such period by Company or
      any
      of its Subsidiaries in connection with any Permitted Acquisition or Investments
      (net of the proceeds of any related debt or equity financings with respect
      to
      such Investments), plus (vii) the
      cash
      portion of any purchase price payments made during such period by Company or
      any
      of its Subsidiaries in connection with the acquisition of any Intellectual
      Property (net of any proceeds of any related financings with respect to such
      expenditures), plus (viii) the
      cash
      portion of any Restricted Junior Payments made by Company during such period
      pursuant to Section 6.5
      (net
      of
      any proceeds of any related financings with respect to such Restricted Junior
      Payments), plus (ix) cash
      expenses and charges added to Consolidated Net Income for purposes of
      determining Consolidated Adjusted EBITDA pursuant to clauses (xi) and (xii)
      thereof plus,
      (x)
      the Cure
      Amount, if any. 

     

    “Consolidated Interest
      Expense”
means,
      for any period, total interest expense (including that portion attributable
      to
      Capital Leases in accordance with GAAP and capitalized interest) of Company
      and
      its Subsidiaries on a consolidated basis with respect to all outstanding
      Indebtedness of Company and its Subsidiaries, including all commissions,
      discounts and other fees and charges owed with respect to letters of credit
      and
      bankers’ acceptance financing, but excluding net costs under Interest Rate
      Agreements. For purposes of greater clarity, it is understood that “Consolidated
      Interest Expense” excludes interest income.

     

    
      
         

      

      
        9

        
          

        

      

      
         

      

    

    “Consolidated Net Income”
means,
      for any period, the net income (or loss) of Company and its Subsidiaries on
      a
      consolidated basis for such period determined in conformity with GAAP;
provided,
      there
      shall be excluded the sum of (i)
      the
      income (or loss) of any Person (other than a Subsidiary of Company) in which
      any
      other Person (other than Company or any of its Subsidiaries) has a joint
      interest, except to the extent of the amount of dividends or other distributions
      actually paid to Company or any of its Subsidiaries by such Person during such
      period; plus (ii)
      the
      income (or loss) of any Person accrued prior to the date it becomes a Subsidiary
      of Company or is merged into or consolidated with Company or any of its
      Subsidiaries or that Person’s assets are acquired by Company or any of its
      Subsidiaries; plus (iii)
      the
      income of any Subsidiary of Company to the extent that the declaration or
      payment of dividends or similar distributions by that Subsidiary of that income
      is not at the time permitted by operation of the terms of its charter or any
      agreement, instrument, judgment, decree, order, statute, rule or governmental
      regulation applicable to that Subsidiary; plus (iv)
      any
      after-tax gains or losses attributable to Asset Sales or returned surplus assets
      of any Pension Plan; plus (v)
      (to the
      extent not included in clauses (i)
      through
(iv)
      above)
      any net non-cash extraordinary gains or net non-cash extraordinary losses;
      plus (vi)
      for
      purposes of Section 6.5
      only,
      any goodwill impairment charges; plus (vii)
      for
      purposes of Section 6.6
      only,
      any gains, losses or charges associated with Interest Rate
      Agreements.

     

    “Consolidated Total
      Debt”
means,
      as at any date of determination, the aggregate stated balance sheet amount
      of
      all Indebtedness of the type specified in clauses (a)
      or
(b)
      of the
      definition thereof of Company and its Subsidiaries, determined on a consolidated
      basis in accordance with GAAP.

     

    “Consolidated Working
      Capital”
means,
      as at any date of determination, the excess of Consolidated Current Assets
      less
      Consolidated Current Liabilities.

     

    “Consolidated Working Capital
      Adjustment”
means,
      for any period on a consolidated basis, the amount (which may be a negative
      number) by which Consolidated Working Capital as of the beginning of such period
      exceeds (or is less than) Consolidated Working Capital as of the end of such
      period, excluding any pro forma effects of changes in the classification of
      assets held for sale. 

     

    “Contingent
      Obligation”
means,
      as to any Person, without duplication, any obligation, contingent or otherwise,
      of such Person guaranteeing or having the economic effect of guaranteeing any
      Indebtedness or other obligation payable or performable by another Person (the
      “primary
      obligor”)
      in any
      manner, whether directly or indirectly, and including any obligation of such
      Person, direct or indirect, (i) to purchase or pay (or advance or supply funds
      for the purchase or payment of) such Indebtedness or other obligation, (ii)
      to
      purchase or lease property, securities or services for the purpose of assuring
      the obligee in respect of such Indebtedness or other obligation of the payment
      or performance of such Indebtedness or other obligation, (iii) to maintain
      working capital, equity capital or any other financial statement condition
      or
      liquidity or level of income or cash flow of the primary obligor so as to enable
      the primary obligor to pay such Indebtedness or other obligation, or (iv)
      entered into for the purpose of assuring in any other manner the obligee in
      respect of such Indebtedness or other obligation of the payment or performance
      thereof or to protect such obligee against loss in respect thereof (in whole
      or
      in part). The amount of any Contingent Obligation shall be deemed to be an
      amount equal to the stated or determinable amount of the related primary
      obligation, or portion thereof, in respect of which such Contingent Obligation
      is made or, if not stated or determinable, the maximum reasonably anticipated
      liability in respect thereof as determined by such Person in good faith.


     

    
      
         

      

      
        10

        
          

        

      

      
         

      

    

    “Continuing
      Directors”
shall
      mean the directors of Holdings on the Effective Date, and each other director,
      if, in each case, such other directors’ nomination for election to the board of
      directors of Holdings is recommended by a majority of the then Continuing
      Directors or such other director receives the vote of the Equity Investors
      in
      his or her election by the stockholders of Holdings.

     

    “Continuing
      Lenders”
means
      those lenders under the Existing Credit Agreement identified as Continuing
      Lenders in Schedule 2.1(a).

     

    “Contractual
      Obligation”
means,
      as applied to any Person, any provision of any equity Security issued by that
      Person or of any material indenture, mortgage, deed of trust, contract,
      undertaking, agreement or other instrument to which that Person is a party
      or by
      which it or any of its properties is bound or to which it or any of its
      properties is subject.

     

    “Contributing
      Guarantors”
has
      the
      meaning assigned to that term in Section 7.2(b).

     

    “Conversion/Continuation
      Notice”
means
      a
      notice in the form of Exhibit
      A-2.

     

    “Co-Op
      Subsidiary”
means
      a
      Subsidiary formed by The Simmons Manufacturing Co., LLC, Simmons Caribbean
      Bedding, Inc. (or another Subsidiary of Company) and a third Person formed
      to
      operate as a “T corporation” under the Internal Revenue Code.

     

    “Counterpart Agreement”
means
      a
      counterpart agreement in the form of Exhibit
      I.

     

    “Credit Document”
means
      any of this Agreement, the Notes, any documents or certificates executed by
      Company in favor of Issuing Bank relating to the Letters of Credit, the
      Collateral Documents and all other documents, instruments or agreements executed
      and delivered by a Credit Party for the benefit of Agents, Issuing Bank or
      any
      Lender in connection herewith (in each case, as such other documents,
      instruments or agreements may be amended, restated, supplemented or otherwise
      modified from time to time).

     

    “Credit Extension”
means
      the making of a Loan or the issuing of a Letter of Credit.

     

    “Credit Extension
      Date”
means
      the date of a Credit Extension.

     

    “Credit Party”
means
      Holdings, Company and the Subsidiary Guarantors.

     

    “Cure
      Amount”
has
      the
      meaning assigned to that term in Section 8.3.

     

    “Cure
      Right”
has
      the
      meaning assigned to that term in Section 8.3.

     

    
      
         

      

      
        11

        
          

        

      

      
         

      

    

    “Currency
      Agreement”
means
      any foreign exchange contract, currency swap agreement, futures contract, option
      contract, synthetic cap or other similar agreement or arrangement to which
      Company or any of its Subsidiaries is a party and which is designed to hedge
      against fluctuations in currency values and not for speculative
      purposes.

     

    “DBNY”
has
      the
      meaning assigned to that term in the preamble hereto.

     

    “Default”
means
      a
      condition or event that, after notice or lapse of time or both, would constitute
      an Event of Default.

     

    “Default Excess”
means,
      with respect to any Defaulting Lender, the excess, if any, of such Defaulting
      Lender’s Pro Rata Share of the aggregate outstanding principal amount of
      Revolving Loans of all Lenders (calculated as if all Defaulting Lenders (other
      than such Defaulting Lender) had funded all of their respective Defaulted
      Revolving Loans) over the aggregate outstanding principal amount of all
      Revolving Loans of such Defaulting Lender.

     

    “Defaulting
      Lender”
has
      the
      meaning assigned to that term in Section 2.23.

     

    “Default Period”
means,
      with respect to any Defaulting Lender, the period commencing on the date of
      the
      applicable Funding Default and ending on the earliest of the following dates:
      (i)
      the date
      on which all Commitments are cancelled or terminated and/or the Obligations
      are
      declared or become immediately due and payable, (ii)
      the date
      on which (a)
      the
      Default Excess with respect to such Defaulting Lender shall have been reduced
      to
      zero (whether by the funding by such Defaulting Lender of any Defaulted
      Revolving Loans of such Defaulting Lender or by the non-pro rata application
      of
      any voluntary or mandatory prepayments of the Revolving Loans in accordance
      with
      the terms of Section 2.12
      or
Section 2.13
      or by a
      combination thereof) and (b)
      such
      Defaulting Lender shall have delivered to Company and Administrative Agent
      a
      written reaffirmation of its intention to honor its obligations hereunder with
      respect to its Commitment, and (iii)
      the date
      on which Company, Administrative Agent and Requisite Lenders waive all Funding
      Defaults of such Defaulting Lender in writing.

     

    “Defaulted
      Revolving Loan”
has
      the
      meaning assigned to that term in Section 2.23.

     

    “Dollars”
and
      the
      sign “$”
mean
      the lawful money of the United States of America.

     

    “Domestic
      Subsidiary”
means
      any Subsidiary of Company organized under the laws of any jurisdiction within
      the United States of America (but excluding any Foreign
      Subsidiary).

     

    “Effective
      Date”
means
      the date upon which the conditions set forth in Section 3.1
      are
      satisfied.

     

    “Effective
      Date Certificate”
means
      a
      certificate in the form of Exhibit
      H.

     

    “Eligible Assets”
has
      the
      meaning assigned to that term in Section 2.13(a).

     

    
      
         

      

      
        12

        
          

        

      

      
         

      

    

    “Eligible Assignee”
means
      (i)
      a
      commercial bank, savings and loan association or savings bank or any other
      entity which is an “accredited investor” (as defined in Regulation D under the
      Securities Act) which extends credit or buys loans as one of its businesses
      including insurance companies, mutual funds and lease financing companies and
      any investment fund that invests in commercial loans; and (ii)
      any
      Lender, any Affiliate of any Lender and, with respect to any Lender that is
      an
      investment fund that invests in commercial loans, any other investment fund
      that
      invests in commercial loans and that is managed or advised (other than any
      fund
      that is managed or advised by Highland Capital Management, L.P. or any of its
      Affiliates or Subsidiaries) by the same investment advisor as such Lender or
      by
      an Affiliate of such investment advisor; provided,
      Eligible Assignee shall not include (a)
      any
      Affiliate of Company or Holdings or (b)
      Highland
      Capital Management, L.P. or any of its Affiliates or Subsidiaries. 

     

    “Employee Benefit
      Plan”
means
      any “employee benefit plan” as defined in Section 3(3)
      of ERISA
      which is (currently or hereafter) or within the prior 6 years was maintained
      or
      contributed to by Company, any of its Subsidiaries or any of their respective
      ERISA Affiliates.

     

    “Environmental
      Claim”
means
      any investigation, notice, notice of violation, claim, action, suit, proceeding,
      demand, abatement order or other order or directive (conditional or otherwise),
      by any governmental authority or any other Person, arising (i)
      pursuant
      to or in connection with any actual or alleged violation of any Environmental
      Law; (ii)
      in
      connection with any Hazardous Material or any actual or alleged Hazardous
      Materials Activity; or (iii)
      in
      connection with any actual or alleged damage, injury, threat or harm to health,
      safety, natural resources or the environment.

     

    “Environmental
      Laws”
means
      any and all federal or state (or any subdivision of either of them), statutes,
      ordinances, orders, rules, regulations, guidance documents, judgments,
      Governmental Authorizations, or any other requirements of governmental
      authorities relating to (i)
      environmental matters, including those relating to any Hazardous Materials
      Activity; (ii)
      the
      generation, use, storage, transportation or disposal of Hazardous Materials;
      or
(iii)
      occupational safety and health, industrial hygiene, land use or the protection
      of human, plant or animal health or welfare, in any manner applicable to Company
      or any of its Subsidiaries or any Facility.

     

    “Equity
      Investors”
means
      Sponsor and the Management Investors.

     

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

     

    “ERISA
      Affiliate”
means,
      as applied to any Person, (i)
      any
      corporation which is a member of a controlled group of corporations within
      the
      meaning of Section 414(b) of the Internal Revenue Code of which that Person
      is a
      member; (ii)
      any
      trade or business (whether or not incorporated) which is a member of a group
      of
      trades or businesses under common control within the meaning of Section 414(c)
      of the Internal Revenue Code of which that Person is a member; and (iii)
      any
      member of an affiliated service group within the meaning of Section 414(m)
      or
      (o) of the Internal Revenue Code of which that Person, any corporation described
      in clause (i)
      above or
      any trade or business described in clause (ii)
      above is
      a member. Any former ERISA Affiliate of Company or any of its Subsidiaries
      shall
      continue to be considered an ERISA Affiliate of Company or such Subsidiary
      within the meaning of this definition with respect to the period such entity
      was
      an ERISA Affiliate of Company or such Subsidiary and with respect to liabilities
      arising after such period for which Company or such Subsidiary could be liable
      under the Internal Revenue Code or ERISA.

     

    
      
         

      

      
        13

        
          

        

      

      
         

      

    

    “ERISA
      Event”
means
      (i)
      a
“reportable event” within the meaning of Section 4043 of ERISA and the
      regulations issued thereunder with respect to any Pension Plan (excluding those
      for which the provision for 30-day notice to the PBGC has been waived by
      regulation); (ii)
      the
      failure to meet the minimum funding standard of Section 412 of the Internal
      Revenue Code with respect to any Pension Plan (whether or not waived in
      accordance with Section 412(d) of the Internal Revenue Code) or the failure
      to
      make by its due date a required installment under Section 412(m) of the Internal
      Revenue Code with respect to any Pension Plan or the failure to make any
      required contribution to a Multiemployer Plan; (iii)
      the
      filing by the administrator of any Pension Plan pursuant to Section 4041(a)(2)
      of ERISA of a notice of intent to terminate such plan in a distress termination
      described in Section 4041(c) of ERISA; (iv)
      the
      withdrawal by Company, any of its Subsidiaries or any of their respective ERISA
      Affiliates from any Pension Plan with two or more contributing sponsors or
      the
      termination of any such Pension Plan resulting in liability pursuant to Section
      4063 or 4064 of ERISA; (v)
      the
      institution by the PBGC of proceedings to terminate any Pension Plan, or the
      occurrence of any event or condition which might constitute grounds under ERISA
      for the termination of, or the appointment of a trustee to administer, any
      Pension Plan; (vi)
      the
      imposition of liability on Company, any of its Subsidiaries or any of their
      respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or
      by
      reason of the application of Section 4212(c) of ERISA; (vii)
      the
      withdrawal of Company, any of its Subsidiaries or any of their respective ERISA
      Affiliates in a complete or partial withdrawal (within the meaning of Sections
      4203 and 4205 of ERISA) from any Multiemployer Plan that could reasonably be
      expected to result in material liability therefor, or the receipt by Company,
      any of its Subsidiaries or any of their respective ERISA Affiliates of notice
      from any Multiemployer Plan that it is in reorganization or insolvency pursuant
      to Section 4241 or 4245 of ERISA, or that it intends to terminate or has
      terminated under Section 4041A or 4042 of ERISA; (viii)
      the
      occurrence of an act or omission which could give rise to the imposition on
      Company, any of its Subsidiaries or any of their respective ERISA Affiliates
      of
      material fines, penalties, taxes or related charges under Chapter 43 of the
      Internal Revenue Code or under Section 406, 409, Section 502(c), (i) or (l),
      or
      Section 4071 of ERISA in respect of any Employee Benefit Plan; (ix)
      the
      assertion of a material claim (other than routine claims for benefits) against
      any Employee Benefit Plan other than a Multiemployer Plan or the assets thereof,
      or against Company, any of its Subsidiaries or any of their respective ERISA
      Affiliates in connection with any Employee Benefit Plan; (x)
      receipt
      from the Internal Revenue Service of notice of the failure of any Pension Plan
      (or any other Employee Benefit Plan intended to be qualified under Section
      401(a) of the Internal Revenue Code) to qualify under Section 401(a) of the
      Internal Revenue Code, or the failure of any trust forming part of any Pension
      Plan to qualify for exemption from taxation under Section 501(a) of the Internal
      Revenue Code; or (xi)
      the
      imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the Internal
      Revenue Code or pursuant to ERISA with respect to any Pension Plan.

     

    “ESOP”
means
      the Simmons Company Employee Stock Ownership Plan, as amended and restated
      effective January 17, 1989 whereby the Simmons Company Employee Stock Ownership
      Trust is the record and beneficial owner of the shares of Holdings equity
      Securities pursuant to the terms thereof.

     

    “Eurodollar Rate Loan”
means
      a
      Loan bearing interest at a rate determined by reference to the Adjusted
      Eurodollar Rate.

     

    
      
         

      

      
        14

        
          

        

      

      
         

      

    

    “Event of
      Default”
means
      each of the events set forth in Section 8.1.

     

    “Exchange Act”
means
      the Securities Exchange Act of 1934, as amended from time to time, and any
      successor statute.

     

    “Existing
      Credit Agreement”
has
      the
      meaning assigned to that term in the recitals hereto.

     

    “Existing
      Lenders”
has
      the
      meaning assigned to that term in the recitals hereto.

     

    “Existing
      Notes”
      means
      the 101⁄4% of Series B Senior Subordinated Notes due 2009 of Company.

     

    “Existing
      Tranche C Term
      Loans”
has
      the
      meaning assigned to that term in the recitals hereto.

     

    “Facilities”
means
      any real property (including all buildings, fixtures or other improvements
      located thereon) now, hereafter or (except with respect to Section 5
      and
Section 6)
      heretofore owned, leased, operated or used by Company or any of its Subsidiaries
      or any of their respective predecessors or Affiliates.

     

    “Fair
      Share”
has
      the
      meaning assigned to that term in Section 7.2(b).

     

    “Fair
      Share Shortfall”
has
      the
      meaning assigned to that term in Section 7.2(b).

     

    “Federal Funds Effective Rate”
means,
      for any period, a fluctuating interest rate equal for each day during such
      period to 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 for such day (or, if such day is not a Business
      Day,
      for the next preceding Business Day) by the Federal Reserve Bank of New York,
      or, if such rate is not so published for any day which is a Business Day, the
      average of the quotations for such day on such transactions received by
      Administrative Agent from three Federal funds brokers of recognized standing
      selected by Administrative Agent.

     

    “Fenway”
means
      Fenway Partners Capital Fund II, L.P., a Delaware limited partnership, FPIP,
      LLC, a Delaware limited liability company and FPIP Trust, LLC, a Delaware
      limited liability company.

     

    “Financial
      Performance Covenants”
means
      the covenants of Company set forth in Section 6.6.

     

    “Financial
      Plan”
has
      the
      meaning assigned to that term in Section 5.1(k).

     

    “First
      Priority”
means,
      with respect to any Lien purported to be created in any Collateral pursuant
      to
      any Collateral Document, that (i)
      such
      Lien has priority over any other Lien on such Collateral (other than Permitted
      Encumbrances and Liens permitted pursuant to Section 6.2)
      and
(ii)
      such
      Lien is the only Lien (other than Permitted Encumbrances and Liens permitted
      pursuant to Section 6.2)
      to
      which such Collateral is subject.

     

    
      
         

      

      
        15

        
          

        

      

      
         

      

    

    “Fiscal
      Quarter”
means
      a
      fiscal quarter of any Fiscal Year.

     

    “Fiscal Year”
means
      the fiscal year of Company and its Subsidiaries ending on the last Saturday
      of
      each calendar year or, at the option of Company, December 31 of each calendar
      year.

     

    “Flood
      Hazard Property”
means
      any Real Estate Asset subject to a Mortgage in favor of Collateral Agent, for
      the benefit of the Lenders, and located in an area designated by the Federal
      Emergency Management Agency as having special flood or mud slide
      hazards.

     

    “Floor
      Plan Sales” means
      sales by Company or any of is Subsidiaries of (i)
      inventory
      (other than inventory classified as floor sample inventory) to any Person for
      a
      discount not to exceed 2.5% and (ii)
      with
      respect to inventory classified as floor sample inventory, for a discount not
      to
      exceed 5.0%; provided
      that the
      discounts set forth in clauses (i) and (ii) above may be increased by an
      additional 0.05% (up to a maximum amount of 10.0%) for every 0.50% increase
      to
      the Base Rate above 7.50% per annum. 

     

    “Foreign
      Subsidiary”
means
      any Subsidiary of Company organized under the laws of any jurisdiction outside
      the United States of America (and including any Subsidiary of a Foreign
      Subsidiary that is organized under the laws of any jurisdiction within the
      United States of America).

     

    “Fraudulent
      Transfer Laws”
has
      the
      meaning assigned to that term in Section
      7.2(a).

     

    “Funding and Payment
      Office”
means
      (i)
      the
      office of Administrative Agent located at the address set forth on the
      Administrative Agent’s signature page hereto, or (ii)
      such
      other office of Administrative Agent as may from time to time hereafter be
      designated as such in a written notice delivered by Administrative Agent to
      Company and each Lender.

     

    “Funding
      Default”
shall
      have the meaning assigned to that term in Section 2.23.

     

    “Funding
      Guarantor”
has
      the
      meaning assigned to that term in Section
      7.2(b).

     

    “Funding
      Notice”
means
      a
      notice substantially in the form of Exhibit
      A-1.

     

    “GAAP”
means
      United States of America generally accepted accounting principles in effect
      as
      of the date of determination thereof.

     

    “GE
      Capital”
has
      the
      meaning assigned to that term in the preamble hereto.

     

    “Governmental
      Act”
means
      any act or omission, whether rightful or wrongful, of any present or future
      de jure
      or
de facto
      government or governmental authority.

     

    “Governmental
      Authorization”
means
      any permit, license, authorization, plan, directive, consent order or consent
      decree of or from any federal, state or local governmental authority, agency
      or
      court.

     

    “GSCP”
has
      the
      meaning assigned to that term in the preamble hereto.

     

    
      
         

      

      
        16

        
          

        

      

      
         

      

    

    “Guaranteed
      Obligations”
has
      the
      meaning assigned to that term in Section 7.1.

     

    “Guarantor”
means
      Holdings and each Subsidiary Guarantor.

     

    “Guaranty”
means
      the Guaranty of each Guarantor set forth in Section 7.

     

    “Hazardous
      Materials” means
      any
      chemical, material or substance, exposure to which is prohibited, limited or
      regulated by any governmental authority or which may or could pose a hazard
      to
      the health and safety of the owners, occupants or any persons in the vicinity
      of
      any Facility, or to the indoor or outdoor environment as defined as such by,
      or
      regulated as such under, any Environmental Law including Hazardous Substances,
      Oils, Pollutants or Contaminants as defined in the National Oil and Hazardous
      Substances Pollution Contingency Plan, 40 C.F.R. § 300.5.

     

    “Hazardous Materials
      Activity”
means
      any past, current, proposed or threatened activity, event or occurrence
      involving any Hazardous Materials, including the use, manufacture, possession,
      storage, holding, presence, existence, location, Release, threatened Release,
      discharge, placement, generation, transportation, processing, construction,
      treatment, abatement, removal, remediation, disposal, disposition or handling
      of
      any Hazardous Materials, and any corrective action or response action with
      respect to any of the foregoing.

     

    “Hedge
      Agreement”
means
      an Interest Rate Agreement or a Currency Agreement designed to hedge against
      fluctuations in interest rates or currency values, respectively and not for
      speculative purposes.

     

    “Historical Financial
      Statements”
means
      (i)
      the
      audited financial statements of Pre-Merger Simmons and its Subsidiaries for
      the
      Fiscal Year ended December 28, 2002, consisting of a consolidated balance sheet
      and the related consolidated statements of operations, changes in stockholders’
deficit and cash flows for such Fiscal Year filed under form 8-K-A on September
      16, 2003; and (ii)
      unaudited financial statements of Pre-Merger Simmons and its Subsidiaries for
      the third Fiscal Quarter of 2003, consisting of a consolidated balance sheet
      and
      the related consolidated statements of operations, changes in stockholders’
deficit and cash flows for the period ending on such date, all in reasonable
      detail and certified by the chief financial officer of Company that they fairly
      present, in all material respects, the financial condition of Company and its
      Subsidiaries as at the dates indicated and the results of their operations
      and
      their cash flows for the periods indicated, subject to changes resulting from
      audit and normal year-end adjustments and the absence of footnotes, in the
      case
      of such unaudited financial statements.

     

    “Holdco
      Notes”
      has the
      meaning assigned to that term in Section 6.1(p).

     

    “Holdings”
has
      the
      meaning assigned to that term in the preamble hereto; provided
      that
      from and after the Holdings Merger Effective Date, all references in this
      Agreement and the other Credit Documents to “Holdings” shall instead
      automatically be deemed to refer to and mean Parent, as the surviving
      corporation of the Holdings Merger.

     

    “Holdings
      Merger”
      means
      the merger of Holdings with and into Parent, with Parent as the surviving
      corporation.

     

    
      
         

      

      
        17

        
          

        

      

      
         

      

    

    “Holdings
      Merger Effective Date”
      means
      the date upon which the Holdings Merger becomes effective in accordance with
      the
      related merger agreement and Delaware corporate law.

     

    “Increased
      Amount Date”
has
      the
      meaning assigned to that term in Section 2.25(a).

     

    “Indebtedness”,
      as
      applied to any Person, means, without duplication (a)
      all
      indebtedness for borrowed money, (b)
      that
      portion of obligations with respect to Capital Leases that is properly
      classified as a liability on a balance sheet in conformity with GAAP,
(c)
      notes
      payable and drafts accepted representing extensions of credit whether or not
      representing obligations for borrowed money, (d)
      any
      obligation owed for all or any part of the deferred purchase price of property
      or services (excluding any such obligations incurred under ERISA or any deferred
      compensation plan), which purchase price is (i)
      due more
      than six months from the date of incurrence of the obligation in respect thereof
      (other than trade payables which are due more than six months from the date
      of
      incurrence in the ordinary course of business) or (ii)
      evidenced by a note or similar written debt instrument, (e)
      all
      indebtedness secured by any Lien on any property or asset owned by that Person
      regardless of whether the indebtedness secured thereby shall have been assumed
      by that Person or is nonrecourse to the credit of that Person, (f)
      the face
      amount of any letter of credit issued for the account of that Person or as
      to
      which that Person is otherwise liable for reimbursement of drawings;
(g)
      all
      obligations of such Person in respect of any exchange traded or over the counter
      derivative transaction, including, without limitation, any Interest Rate
      Agreement and Currency Agreement, whether entered into for hedging or
      speculative purposes; and (h)
      Contingent Obligations of such Person in respect of any of the foregoing;
provided,
      in no
      event shall obligations under any Interest Rate Agreement and any Currency
      Agreement be deemed “Indebtedness” for any purpose under Section 6.6.
      The
      amount of Indebtedness of any Person for purposes of clause (e)
      shall be
      deemed to be the lesser of (X)
      the
      aggregate unpaid principal amount of such Indebtedness and (Y)
      the fair
      market value of the property encumbered thereby as determined by such Person
      in
      good faith.

     

    “Indemnified Liabilities”
means,
      collectively, any and all liabilities, obligations, losses, damages (including
      natural resource damages), penalties, actions, judgments, suits, claims
      (including Environmental Claims), costs (including the costs of any
      investigation, study, sampling, testing, abatement, cleanup, removal,
      remediation or other response action necessary to remove, remediate, clean
      up or
      abate any Hazardous Materials Activity), expenses and disbursements of any
      kind
      or nature whatsoever (including the reasonable fees and disbursements of counsel
      for Indemnitees in connection with any investigative, administrative or judicial
      proceeding commenced or threatened by any Person, whether or not any such
      Indemnitee shall be designated as a party or a potential party thereto, and
      any
      fees or expenses incurred by Indemnitees in enforcing this indemnity), whether
      direct or indirect and whether based on any federal, state or foreign laws,
      statutes, rules or regulations (including securities and commercial laws,
      statutes, rules or regulations and Environmental Laws), on common law or
      equitable cause or on contract or otherwise, that may be imposed on, incurred
      by, or asserted against any such Indemnitee, in any manner relating to or
      arising out of (i)
      this
      Agreement or the other Credit Documents or the transactions contemplated hereby
      or thereby (including Lenders’ agreement to make Credit Extensions or the use or
      intended use of the proceeds thereof or the use or intended use of any thereof,
      or any enforcement of any of the Credit Documents (including any sale of,
      collection from, or other realization upon any of the Collateral or the
      enforcement of the Guaranty)); (ii)
      the
      statements contained in the commitment letter delivered by any Lender to Company
      with respect thereto; or (iii)
      any
      Environmental Claim or any Hazardous Materials Activity relating to or arising
      from, directly or indirectly, any past or present activity, operation, land
      ownership, or practice of Company or any of its Subsidiaries.

     

    
      
         

      

      
        18

        
          

        

      

      
         

      

    

    “Indemnitee”
has
      the
      meaning assigned to that term in Section 10.3.

     

    “Installment”
has
      the
      meaning assigned to that term in Section 2.11.

     

    “Installment
      Date”
has
      the
      meaning assigned to that term in Section 2.11.

     

    “Intellectual Property”
means
      all patents, trademarks, servicemarks, tradenames, copyrights, mask works,
      trade
      secrets, technology, know-how and processes and rights of publicity used in
      or
      necessary for the conduct of the business of Company and its Subsidiaries as
      currently conducted that are material to the condition (financial or otherwise),
      business or operations of Company and its Subsidiaries, individually or in
      the
      aggregate.

     

    “Interest Payment
      Date”
means
      with respect to (i)
      any Base
      Rate Loan, each March 30, June 30, September 30 and December 30 of each year,
      commencing on the first such date to occur after the Effective Date; and
(ii)
      any
      Eurodollar Rate Loan, the last day of each Interest Period applicable to such
      Loan; provided,
      in the
      case of each Interest Period of longer than three months “Interest
      Payment Date”
shall
      also include each date that is three months, or an integral multiple thereof,
      after the commencement of such Interest Period.

     

    “Interest Period”
means,
      in connection with a Eurodollar Rate Loan, an interest period of one-, two-,
      three-, six-, nine- or twelve-months, as selected by Company in the applicable
      Notice, (i)
      initially, commencing on the Credit Extension Date or the date of any conversion
      or continuation thereof, as the case may be (permitted pursuant to Section 2.8);
      and
(ii)
      thereafter, commencing on the day on which the immediately preceding Interest
      Period expires; provided,
      (a)
      if an
      Interest Period would otherwise expire on a day that is not a Business Day,
      such
      Interest Period shall expire on the next succeeding Business Day unless no
      further Business Day occurs in such month, in which case such Interest Period
      shall expire on the immediately preceding Business Day; (b)
      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; (c)
      no
      Interest Period with respect to any portion of any Class of Term Loans shall
      extend beyond the such Class’s Tranche D Term Loan Maturity Date or New Term
      Loan Maturity Date, respectively; and (d)
      no
      Interest Period with respect to any portion of the Revolving Loans shall extend
      beyond the Revolving Loan Commitment Termination Date.

     

    “Interest Rate Agreement”
means
      any interest rate swap agreement, interest rate cap agreement, interest rate
      collar agreement or other similar agreement or arrangement to which Company
      or
      any of its Subsidiaries is a party and which is designed to hedge against
      fluctuations in interest rates and not for speculative purposes.

     

    “Interest Rate
      Determination Date”
means,
      with respect to any Interest Period, the second Business Day prior to the first
      day of such Interest Period.

     

    
      
         

      

      
        19

        
          

        

      

      
         

      

    

    “Internal Revenue
      Code”
means
      the Internal Revenue Code of 1986, as amended to the date hereof and from time
      to time hereafter, and any successor statute.

     

    “Investment”
means
      (a)
      any
      direct or indirect purchase or other acquisition by Company or any of its
      Subsidiaries of, or of a beneficial interest in, any of the Securities of any
      other Person (including any Subsidiary of Company); (b)
      any
      direct or indirect loan, advance (other than advances to employees for moving,
      entertainment and travel expenses, drawing accounts and similar expenditures
      in
      the ordinary course of business) or capital contribution by Company or any
      of
      its Subsidiaries to any other Person, including all indebtedness and accounts
      receivable from that other Person that are not current assets or did not arise
      from sales to that other Person in the ordinary course of business; (c)
      Interest
      Rate Agreements or Currency Agreements not constituting Hedge Agreements; or
      (d)
      the
      purchase or other acquisition (in one transaction or a series of transactions)
      of all or substantially all of the property and assets or business of another
      Person or assets constituting a business unit, line of business or division
      of
      any other Person. The amount of any Investment shall be the original cost of
      such Investment plus the cost of all additions thereto, without any adjustments
      for increases or decreases in value, or write-ups, write-downs or write-offs
      with respect to such Investment.

     

    “Issuing
      Bank”
means,
      with respect to any Letter of Credit, the Lender or any of its Subsidiaries
      or
      Affiliates, which issues such Letter of Credit.

     

    “Joinder
      Agreement”
means
      a
      Joinder Agreement substantially in the form of Exhibit
      M.

     

    “Lead Arranger”
means
      GSCP, in its capacity as lead arranger.

     

    “Joint Venture”
means
      a
      joint venture, partnership or other similar arrangement, whether in corporate,
      partnership or other legal form; provided,
      in no
      event shall any Subsidiary of any Person be considered to be a Joint
      Venture.

     

    “Lender”
has
      the
      meaning assigned to that term in the preamble hereto; provided,
      the
      term “Lenders” shall include Swing Line Lender unless the context otherwise
      requires.

     

    “Lender Counterparty”
means
      each Lender, Lead Arranger or any of their respective Affiliates counterparty
      to
      a Hedge Agreement.

     

    “Letter of Credit”
or
      “Letters of Credit”
means
      Commercial Letters of Credit and Standby Letters of Credit issued or to be
      issued by Issuing Bank for the account of Company pursuant to Section 2.3.

     

    “Letter of Credit Sublimit”
means
      the lesser of (i)
      $40,000,000 and (ii)
      the
      aggregate amount of the Revolving Loan Commitments then in effect.

     

    “Letter of Credit
      Usage”
means,
      as at any date of determination, the sum of (i)
      the
      maximum aggregate amount which is, or at any time thereafter may become,
      available for drawing under all Letters of Credit then outstanding, plus (ii)
      the
      aggregate amount of all drawings under Letters of Credit honored by Issuing
      Bank
      and not theretofore reimbursed by or on behalf of Company.

     

    
      
         

      

      
        20

        
          

        

      

      
         

      

    

    “Leverage Ratio”
means
      the ratio, as of any date of determination, of (i) Consolidated
      Total Debt as of such date minus,
      Cash
      and Cash Equivalents of Company and its Subsidiaries as of such date not in
      excess of $30,000,000 to
      (ii) Consolidated
      Adjusted EBITDA for the most recent four-Fiscal Quarter period ended on or
      prior
      to such date.

     

    “Lien”
means
      any lien, mortgage, pledge, assignment, security interest, charge or encumbrance
      of any kind (including any conditional sale or other title retention agreement,
      any lease in the nature thereof, and any agreement to give any security
      interest) and any option, trust or other preferential arrangement having the
      practical effect of any of the foregoing.

     

    “Loan”
means
      a
      Tranche D Term Loan, a Revolving Loan, a Swing Line Loan or a New Term
      Loan.

     

    “Management
      Agreement”
means
      that certain Management Agreement dated as of the Closing Date by and among
      Company and THL Managers V, LLC, a Delaware limited liability company, as the
      same may be amended, restated, supplemented or otherwise modified from time
      to
      time in a manner not prohibited by this Agreement.

     

    “Management
      Fees”
means
      the fees payable pursuant to the Management Agreement.

     

    “Management
      Investors”
means
      the management officers and employees of Parent and its Subsidiaries who are
      investors in Parent or Holdings on the Effective Date.

     

    “Margin Stock”
has
      the
      meaning assigned to that term in Regulation U of the Board of Governors of
      the
      Federal Reserve System as in effect from time to time.

     

    “Material Adverse
      Effect”
means
      (i)
      a
      material adverse effect upon the business, operations, properties, assets or
      condition (financial or otherwise) of Company and its Subsidiaries, taken as
      a
      whole, or (ii)
      the
      impairment (other than as a result of circumstances covered by clause (i) above)
      of the ability of Company or any of its Subsidiaries to perform, or
      Administrative Agent or Lenders to enforce, the Obligations in any material
      respect.

     

    “Material Subsidiary”
means
      each Subsidiary of Company now existing or hereafter acquired or formed by
      Company or its Subsidiaries which, on a consolidated basis for such Subsidiary
      and its Subsidiaries, (i)
      for the
      most recent Fiscal Year accounted for more than 5% of the consolidated revenues
      of Company and its Subsidiaries or (ii)
      as at
      the end of such Fiscal Year, was the owner of more than 5% of the consolidated
      assets of Company and its Subsidiaries.

     

    “Maximum
      Amount”
has
      the
      meaning assigned to that term in Section 10.19.

     

    “Maximum
      Consolidated Capital Expenditures Amount”
has
      the
      meaning assigned to that term in Section 6.8.

     

    “MD&A”
means,
      with respect to financial statements to which it pertains, management’s
      discussion and analysis of Company’s and its Subsidiaries’ financial performance
      for the period covered by such financial statements as compared to projected
      financial performance for such period.

     

    
      
         

      

      
        21

        
          

        

      

      
         

      

    

    “Mergers”
means
      the mergers which occurred on December 19, 2003 of (i) THL Company with and
      into
      Simmons Holdco, with Simmons Holdco being the surviving corporation and (ii)
      Pre-Merger Simmons with and into Simmons Holdco, with Simmons Holdco being
      the
      surviving corporation and changing its name to “Simmons Company”.

     

    “Monthly
      Reports”
has
      the
      meaning assigned to that term in Section 5.1(a).

     

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

     

    “Mortgage”
means
      (i)
      a
      security instrument (whether designated as a deed of trust or a mortgage or
      by
      any similar title) executed and delivered by any Credit Party, substantially
      in
      the form of Exhibit
      K
      annexed
      hereto or in such other form as may be approved by Collateral Agent in its
      sole
      discretion, in each case with such changes thereto as may be recommended by
      Collateral Agent’s local counsel based on local laws or customary local mortgage
      or deed of trust practices, or (ii)
      at
      Collateral Agent’s option, in the case of an Additional Mortgaged Property (as
      defined in Section 5.12),
      an
      amendment to an existing Mortgage, in form satisfactory to Administrative Agent,
      adding such Additional Mortgaged Property to the Real Property Assets encumbered
      by such existing Mortgage, in either case as such security instrument or
      amendment may be amended, restated, supplemented or otherwise modified from
      time
      to time. “Mortgages”
means
      all such instruments, collectively.

     

    “Mortgage Policy”
means
      an Additional Mortgage Policy (as defined in Section 5.12).

     

    “Multiemployer
      Plan”
means
      any Employee Benefit Plan which is a “multiemployer plan” as defined in Section
      3(37) of ERISA.

     

    “National
      Flood Insurance Program”
means
      the National Flood Insurance Program under the National Flood Insurance Act
      of
      1968 and the Flood Disaster Protection Act of 1973.

     

    “Net Asset Sale
      Proceeds”
means,
      with respect to any Asset Sale, an amount equal to the difference of
(i)
      Cash
      payments (including any Cash received by way of deferred payment pursuant to,
      or
      by monetization of, a note receivable or otherwise, but only as and when so
      received) received from such Asset Sale, minus (ii)
      any bona
      fide direct costs incurred in connection with such Asset Sale, including
(a)
      income
      taxes reasonably estimated to be actually payable within two years of the date
      of such Asset Sale as a result of any gain recognized in connection with such
      Asset Sale, (b) payment
      of the outstanding principal amount of, premium or penalty, if any, and interest
      on any Indebtedness (other than the Loans) that is secured by a Lien on the
      stock or assets in question and that is repaid as a result of such Asset Sale,
      (c)
      the
      out-of-pocket expenses incurred by such Person in connection with such Asset
      Sale and (d)
      any
      reserve for adjustment in respect of (x)
      the sale
      price of such asset or assets established in accordance with GAAP and
(y)
      any
      liabilities associated with such asset or assets and retained by such Person
      after such sale or other disposition thereof, including, without limitation,
      pension and other post-employment benefit liabilities and liabilities related
      to
      environmental matters or against any indemnification obligations associated
      with
      such transaction.

     

    
      
         

      

      
        22

        
          

        

      

      
         

      

    

    “Net
      Insurance/Condemnation Proceeds”
means
      the difference of (i)
      any Cash
      payments or proceeds received by Company or any of its Subsidiaries (a)
      under
      any business interruption or casualty insurance policy in respect of a covered
      loss thereunder or (b)
      as a
      result of the taking of any assets of Company or any of its Subsidiaries by
      any
      Person pursuant to the power of eminent domain, condemnation or otherwise,
      or
      pursuant to a sale of any such assets to a purchaser with such power under
      threat of such a taking, minus,
      in each
      case, (ii)(a)
      any
      actual and reasonable documented costs incurred by Company or any of its
      Subsidiaries in connection with the adjustment or settlement of any claims
      of
      Company or such Subsidiary in respect thereof, (b)
      income
      taxes reasonably estimated to be actually payable within two years of the date
      of such event giving rise to such Net Insurance/Condemnation Proceeds as a
      result of any gain recognized in connection with such event, (c)
      payment
      of the outstanding principal amount of, premium or penalty, if any, and interest
      on any Indebtedness (other than the Loans) that is secured by a Lien on the
      assets in question and that is repaid as a result of such casualty or
      condemnation, (d)
      the
      out-of-pocket expenses incurred by such Person in connection with such casualty
      or condemnation and (e)
      any
      reserve for adjustment in respect of (x)
      the sale
      price of such asset or assets established in accordance with GAAP and
(y)
      any
      liabilities associated with such asset or assets and retained by such Person
      after such sale or other disposition thereof, including, without limitation,
      liabilities related to environmental matters or against any indemnification
      obligations associated with such transaction, provided,
      however,
      that
      the receipt by Company and its Subsidiaries from the Closing Date through the
      date of determination of up to an aggregate of $10,000,000 in Net
      Insurance/Condemnation Proceeds in respect of business interruption insurance
      described in clause (a) above shall not be “Net Insurance/Condemnation Proceeds”
for purposes of Section 2.13(a).

     

    “New
      Revolving Loan”
has
      the
      meaning assigned to that term in Section
      2.25(b).

     

    “New
      Revolving Loan Commitments”
has
      the
      meaning assigned to that term in Section 2.25(a).

     

    “New
      Revolving Loan Lender”
has
      the
      meaning assigned to that term in Section 2.25(a).

     

    “New
      Term Loan Commitments”
has
      the
      meaning assigned to that term in Section 2.25(a).

     

    “New
      Term Loan Exposure”
means,
      with respect to any Lender as of any date of determination, the outstanding
      principal amount of the New Term Loans of such Lender.

     

    “New
      Term Loan Lender”
has
      the
      meaning assigned to that term in Section
      2.25(a).

     

    “New
      Term Loan Maturity Date”
means
      the date that New Term Loans of a Series shall become due and payable in full
      hereunder, as specified in the applicable Joinder Agreement, including by
      acceleration or otherwise.

     

    “New
      Term Loan Note”
means
      a
      promissory note substantially in the form of Exhibit B-2, as it may be amended,
      restated, supplemented or otherwise modified.

     

    “New
      Term Loans”
has
      the
      meaning assigned to that term in Section 2.25(c).

     

    
      
         

      

      
        23

        
          

        

      

      
         

      

    

    “Non-Guarantor
      Subsidiary”
means
      (i)
      each of
      the Subsidiaries identified as a Non-Guarantor Subsidiary on Schedule 4.1
      annexed
      hereto and (ii)
      each
      Person that becomes a Subsidiary of Company after the date hereof and in
      accordance with Section 5.9,
      and is
      not required to become a Subsidiary Guarantor; provided,
      however,
      that
      any such Domestic Subsidiary shall cease to be a Non-Guarantor Subsidiary if
      (x)
      it is or
      at any time becomes a Material Subsidiary or (y)
      it
      otherwise ceases to be a Non-Guarantor Subsidiary pursuant to Section 5.9.
      Notwithstanding the foregoing, each of Co-Op Subsidiary and any Captive
      Insurance Subsidiary shall always be a Non-Guarantor Subsidiary. 

     

    “Nonpublic
      Information”
      means
      information that has not been disseminated in a manner making it available
      to
      investors generally, within the meaning of Regulation FD under the Securities
      Act.

     

    “Note”
means
      a
      Tranche D Term Loan Note, a New Term Loan Note, a Revolving Note or a Swing
      Line
      Note.

     

    “Notice”
means
      a
      Funding Notice, a Request for Issuance or a Conversion/Continuation
      Notice.

     

    “Obligations”
means,
      with respect to any Credit Party, obligations of such Credit Party, whether
      now
      existing or hereafter made, incurred or created, whether absolute or contingent,
      liquidated or unliquidated, whether due or not due, and however arising under
      or
      in connection with this Agreement and any other Credit Documents, including
      those arising under successive borrowing transactions hereunder which shall
      either continue the Obligations of such Credit Party from time to time or renew
      them after they have been satisfied and including interest which, but for the
      filing of a petition in bankruptcy with respect to such Credit Party, would
      have
      accrued on any Obligation, whether or not a claim is allowed against such Credit
      Party for such interest in the related bankruptcy proceeding.

     

    “Offer”
has
      the
      meaning assigned to that term in Section 2.12.

     

    “Offer
      Loans”
has
      the
      meaning assigned to that term in Section 2.12.

     

    “Operating
      Lease”
means,
      as applied to any Person, any lease (including leases that may be terminated
      by
      the lessee at any time but excluding any such lease under which that Person
      is
      the lessor) of any property (whether real, personal or mixed) that is not a
      Capital Lease.

     

    “Parent”
means
      Simmons Company (formerly known as THL Bedding Holding Company), a Delaware
      corporation.

     

    “Parent
      IPO”
means
      an initial public offering of the Securities of Parent.

     

    “Parent
      Notes”
      means
      those certain 10% Senior Discount Notes due 2014 issued by Parent pursuant
      to
      that certain Indenture dated as of December 15, 2004 by and between Parent
      and
      Wells Fargo Bank, National Association, as Trustee, as such notes and Indenture
      may be amended, restated, supplemented or otherwise modified from time to
      time.

     

    “PBGC”
      means
      the Pension Benefit Guaranty Corporation or any successor thereto.

     

    
      
         

      

      
        24

        
          

        

      

      
         

      

    

    “Pension Plan”
means
      any Employee Benefit Plan, other than a Multiemployer Plan, which is subject
      to
      Title IV of ERISA.

     

    “Permitted Acquisition”
means
      an acquisition of Securities or assets made pursuant to Section 6.3(e).

     

    “Permitted
      Cure Security”
means
      Securities of Holdings (or of Parent, the proceeds of which have been
      contributed to Holdings) having no mandatory redemption, repurchase, repayment
      or similar requirements prior to the date which occurs six (6) months after
      the
      Tranche D Term Loan Maturity Date and upon which all dividends or distributions,
      at the election of Holdings (or Parent, as the case may be), may be payable
      in
      additional shares of such Security.

     

    “Permitted
      Encumbrances”
means
      the following types of Liens (excluding any such Lien imposed by ERISA):


     

    (a) Liens
      for
      taxes, assessments or governmental charges or claims the payment of which is
      not, at the time, required by Section 5.3;

     

    (b) statutory
      Liens of landlords, statutory Liens of banks and rights of set-off, statutory
      Liens of carriers, warehousemen, mechanics, repairmen, workmen and materialmen,
      and other Liens imposed by law, in each case incurred in the ordinary course
      of
      business which are not, at the time, required to be paid by Section 5.3;

     

    (c) Liens
      incurred or deposits made in the ordinary course of business in connection
      with
      workers’ compensation, unemployment insurance, old age pensions and other types
      of social security, or to secure the performance of tenders, statutory
      obligations, surety, stay, customs and appeal bonds, bids, leases, government
      contracts, insurance premiums, deductibles or co-insured amounts, trade
      contracts, performance and return-of-money bonds and other similar obligations
      (exclusive of obligations for the payment of borrowed money);

     

    (d) any
      attachment or judgment Lien not constituting an Event of Default under
Section 8.1(h);
      

     

    (e) leases,
      subleases, licenses or sublicenses granted to third parties and not interfering
      in any material respect with the ordinary conduct of the business of Company
      or
      any of its Subsidiaries; 

     

    (f) easements,
      rights-of-way, restrictions, encroachments, protrusions, and other minor defects
      or irregularities in title, in each case which do not and will not interfere
      in
      any material respect with the ordinary conduct of the business of Company or
      any
      of its Subsidiaries; 

     

    (g) any
      (i)
      interest
      or title of a lessor, sublessor, licensor or sublicensor, (ii) restriction,
      Lien or encumbrance that the interest or title of such lessor or sublessor,
      licensor, sublicensor may be subject to, or (iii)
      subordination of the interest of the lessee, sublessee, licensee or sublicensee
      under such lease or license to any restriction, Lien or encumbrance referred
      to
      in the preceding clause (ii);
      

     

    
      
         

      

      
        25

        
          

        

      

      
         

      

    

    (h) Liens
      arising from filing UCC financing statements relating to operating leases and
      in
      connection with consignment arrangements; 

     

    (i) Liens
      in
      favor of customs and revenue authorities arising as a matter of law to secure
      payment of customs duties in connection with the importation of goods;


     

    (j) any
      zoning or similar law or right reserved to or vested in any governmental office
      or agency to control or regulate the use of any real property;

     

    (k) Liens
      securing obligations (other than obligations representing Indebtedness for
      borrowed money) under operating, reciprocal easement or similar agreements
      entered into in the ordinary course of business of Company and its Subsidiaries;
      and 

     

    (l) licenses
      of patents, trademarks and other intellectual property rights granted by Company
      or any of its Subsidiaries in the ordinary course of business and not
      interfering in any material respect with the ordinary conduct of the business
      of
      Company or such Subsidiary.

     

    “Permitted
      Liens”
means
      each of the Liens permitted pursuant to Section 6.2.

     

    “Permitted
      Refinancing Indebtedness”
means
      any Indebtedness of Holdings or any Subsidiary of Holdings issued in exchange
      for, or the net proceeds of which are used to extend, refinance, renew, replace,
      defease or refund (collectively, to “Refinance”)
      any
      Indebtedness of such Person; provided
      that
(a)
      the
      principal amount (or accreted value, if applicable) thereof does not exceed
      the
      principal amount (or accreted value, if applicable) of the Indebtedness so
      modified, refinanced, refunded, renewed, replaced, defeased or extended except
      by an amount equal to a reasonable premium or other reasonable amount paid,
      and
      fees and expenses reasonably incurred, in connection with such modification,
      refinancing, refunding, renewal, replacement, defeasance or extension and by
      an
      amount equal to any existing commitments unutilized thereunder or as otherwise
      permitted pursuant to Section 6.1,
      (b)
      such
      modification, refinancing, refunding, renewal or extension providing for a
      final
      maturity date of such Indebtedness equal to or later than the final maturity
      date of, and has a weighted average life equal to or greater than the weighted
      average life of, the Indebtedness being modified, refinanced, refunded, renewed
      or extended, (c)
      if the
      Indebtedness being modified, refinanced, refunded, renewed, replaced, defeased
      or extended is subordinated in right of payment to the Obligations, such
      modification, refinancing, refunding, renewal, replacement or extension is
      subordinated in right of payment to the Obligations on terms not materially
      less
      favorable to the Lenders as those contained in the documentation governing
      the
      Indebtedness being modified, refinanced, refunded, renewed, replaced, defeased
      or extended, taken as a whole, (d)
      the
      terms, conditions (including, if applicable, as to collateral) and interest
      rates of any such modified, refinanced, refunded, renewed, defeased, replaced
      or
      extended Indebtedness are not materially less favorable to the Credit Parties
      or
      the Lenders than the terms and conditions of the Indebtedness being modified,
      refinanced, refunded, renewed, defeased, replaced or extended, taken as a whole,
      (e)
      such
      modification, refinancing, refunding, renewal, replacement or extension is
      incurred only by the Person who is the obligor on the Indebtedness being
      modified, refinanced, refunded, renewed, defeased, replaced or extended;
provided,
      that
      such Indebtedness may include any new or additional obligors so long as
(i)
      such new
      or additional obligors are Credit Parties or simultaneously with the incurrence
      of such Permitted Refinancing Indebtedness become Credit Parties pursuant to
      Section 5.9,
      and
(ii)
      with
      respect to Indebtedness being refinanced with Permitted Refinancing Indebtedness
      that is Subordinated Indebtedness, the obligations of such new or additional
      obligors shall be subordinated in right of payment to the Obligations on terms
      not materially less favorable to the Lenders as those contained in the Senior
      Subordinated Note Indenture, taken as a whole, and (f)
      at the
      time thereof and after giving effect thereto, no Default or Event of Default
      shall have occurred and be continuing.

     

    
      
         

      

      
        26

        
          

        

      

      
         

      

    

    “Permitted Sale/Lease-Back
      Transaction”
has
      the
      meaning assigned to that term in Section 6.9.

     

    “Permitted
      Subordinated Indebtedness”
means
      any unsecured Indebtedness of Company that (a)
      is
      expressly subordinated to the prior payment in full in cash of the Obligations
      on terms and conditions not materially less favorable to the Lenders than the
      terms and conditions of the Senior Subordinated Notes or any Permitted
      Refinancing Indebtedness pertaining thereto, taken as a whole, (b)
      will not
      mature prior to the date that is six (6) months after the Tranche D Term Loan
      Maturity Date, (c)
      has no
      scheduled amortization or payments of principal prior to the date that is six
      (6) months after the Tranche D Term Loan Maturity Date, and (d)
      has
      covenant, default and remedy provisions not materially more restrictive, or
      mandatory prepayment, repurchase, defeasance or redemption provisions no more
      onerous or expansive in scope, than those contained in the Senior Subordinated
      Notes Indenture or any Permitted Refinancing Indebtedness pertaining thereto,
      taken as a whole; provided
      any such
      Indebtedness shall constitute Permitted Subordinated Indebtedness only if
(i)
      both
      before and after giving effect to the issuance or incurrence thereof, no Default
      or Event of Default shall have occurred and be continuing, and (ii)
      the
      chief financial officer of Company shall have delivered an officer’s certificate
      demonstrating compliance with the covenants set forth in Section 6.6
      on a Pro
      Forma Basis as of the most recently ended Fiscal Quarter in form and substance
      reasonably satisfactory to the Administrative Agent, it being understood that
      any capitalized or paid-in-kind interest or accreted principal on such
      Indebtedness shall not constitute an issuance or incurrence of Indebtedness
      for
      purposes of this proviso.

     

    “Person”
means
      and includes natural persons, corporations, limited partnerships, general
      partnerships, limited liability companies, limited liability partnerships,
      joint
      stock companies, Joint Ventures, associations, companies, trusts, banks, trust
      companies, land trusts, business trusts or other organizations, whether or
      not
      legal entities, and governments (whether federal, state or local, domestic
      or
      foreign, and including political subdivisions thereof) and agencies or other
      administrative or regulatory bodies thereof.

     

    “Personal
      Property Collateral Documents”
means
      such documents, certificates and opinions required in order to create in favor
      of Collateral Agent, for the benefit of Secured Parties, a valid, perfected
      First Priority security interest in the personal property Collateral, which
      include:

     

    (i)  evidence
      reasonably satisfactory to Collateral Agent of the compliance by each Credit
      Party of its obligations under the Pledge and Security Agreement and the other
      Collateral Documents (including, without limitation, their obligations to
      execute and deliver UCC financing statements, originals of securities,
      instruments, chattel paper and intercompany notes evidencing Indebtedness
      permitted to be incurred pursuant to Section 6.1);

     

    
      
         

      

      
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    (ii)  a
      completed Collateral Questionnaire executed by an Authorized Officer of the
      relevant Person, together with all attachments contemplated thereby, including
      (A) the results of a recent search of all effective UCC financing statements
      (or
      equivalent filings) made with respect to any personal or mixed property of
      the
      relevant Person in the jurisdictions specified in the Collateral Questionnaire,
      together with copies of all such filings disclosed by such search, and (B)
      UCC
      termination statements (or similar documents) duly executed by all applicable
      Persons for filing in all applicable jurisdictions as may be necessary to
      terminate any effective UCC financing statements (or equivalent filings)
      disclosed in such search (other than any such financing statements in respect
      of
      Permitted Liens); and

     

    (iii)  customary
      opinions of counsel (which counsel shall be reasonably satisfactory to
      Collateral Agent) with respect to the creation and perfection of the security
      interests in favor of Collateral Agent in such Collateral and such other matters
      governed by the laws of each jurisdiction in which the relevant Person is
      located as Collateral Agent may reasonably request, in each case in form and
      substance reasonably satisfactory to Collateral Agent.

     

    “PF
      Asset Sale”
means
      any Asset Sale pertaining to (x)
      an
      entire line of business of Company or its Subsidiaries or (y)
      all of
      the equity Securities or all or substantially all of the assets of any
      Subsidiary of Company. 

     

    “Platform”
as
      defined in Section 5.1(o).

     

    “Pledge and Security
      Agreement”
means
      the Pledge and Security Agreement entered into by and among Company, Guarantors
      and Collateral Agent dated as of the Closing Date, substantially in the form
      of
Exhibit
      J
      annexed
      hereto, as such Pledge and Security Agreement may hereafter be amended,
      restated, supplemented or otherwise modified from time to time.

     

    “Pledged
      Collateral”
means
      the “Pledged Collateral” as defined in the Pledge and Security
      Agreement.

     

    “Pre-Merger
      Simmons”
means
      Simmons Company, a Delaware corporation, which existed prior to the
      Mergers.

     

    “Prime Rate”
means
      the
      rate
      that the Administrative Agent announces from time to time as its prime lending
      rate, as in effect from time to time. The Prime Rate is a reference rate and
      does not necessarily represent the lowest or best rate actually charged to
      any
      customer. The Administrative Agent or any other Lender may make commercial
      loans
      or other loans at rates of interest at, above or below the Prime
      Rate.

     

    “Pro
      Forma Basis”
shall
      mean for purposes of this Agreement (but not for determining the Applicable
      Commitment Fee Percentage or the Applicable Margin) as to any Person, for any
      Permitted Acquisition, PF Asset Sale or incurrence of Indebtedness which occurs
      subsequent to the commencement of a period for which the financial effect of
      such events is being calculated (each, a “Referent
      Event”),
      and
      giving effect to the Referent Event for which such calculation is being made,
      such calculation as will give pro forma effect to such events as if same had
      occurred at the beginning of such period of calculation; and

     

    
      
         

      

      
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    (a) for
      purposes of the foregoing calculation, each Referent Event shall be assumed
      to
      have occurred on the first day of the four consecutive Fiscal Quarter period
      last ended on or before the occurrence of the Referent Event for which such
      pro
      forma effect is being determined (the “Reference
      Period”);
      and

     

    (b) (x)
      all
      Indebtedness (including Indebtedness incurred or assumed in connection with
      the
      Referent Event, whether incurred under this Agreement or otherwise, but
      including, with respect to revolving Indebtedness the average amount of such
      Indebtedness outstanding during the Reference Period) incurred or permanently
      repaid in connection with the Referent Event shall be deemed to have been
      incurred or repaid at the beginning of such Reference Period and (y)
      interest
      expense of such Person attributable to interest on any Indebtedness, for which
      pro forma effect is being given as provided in preceding clause (x),
      bearing
      floating interest rates shall be computed on a pro forma basis as if the rates
      which would have been in effect during the period for which pro forma effect
      is
      being given had been actually in effect during such periods.

     

    Calculations
      made pursuant to the definition of Pro Forma Basis shall be determined in good
      faith by an Authorized Officer of Company and may include adjustments, in the
      reasonable determination of Company as set forth in an officer’s certificate, to
(i)
      reflect
      operating expense reductions reasonably expected to result from any acquisition,
      merger or PF Asset Sale to the extent (x)
      determined on a basis consistent with Article 11 of Regulation S-X promulgated
      under the Securities Act or (y)
      reasonably acceptable to the Administrative Agent and the Syndication Agent
      and
(ii)
      eliminate the effect of any extraordinary accounting event with respect to
      any
      acquired person or assets on Consolidated Net Income.

     

    “Pro Rata
      Share”
means
      (i)
      with
      respect to all payments, computations and other matters relating to the Tranche
      D Term Loan of any Lender, the percentage obtained by dividing (a)
      the
      Tranche D Term Loan Exposure of such Lender by (b)
      the
      aggregate Tranche D Term Loan Exposure of all Lenders, (ii)
      with
      respect to all payments, computations and other matters relating to the
      Revolving Loan Commitment or Revolving Loans of any Lender or any Letters of
      Credit issued or participations therein purchased by any Lender or any
      participations in any Swing Line Loans purchased by any Lender, the percentage
      obtained by dividing (a)
      the
      Revolving Credit Exposure of that Lender by (b)
      the
      aggregate Revolving Credit Exposure of all Lenders, (iii)
      with
      respect to all payments, computations, and other matters relating to New Term
      Loan Commitments or New Term Loans of a particular Series, the percentage
      obtained by dividing (a)
      the New
      Term Loan Exposure of that Lender with respect to that Series by (b)
      the
      aggregate New Term Loan Exposure of all Lenders with respect to that Series,
      and
(iv)
      for all
      other purposes with respect to each Lender, the percentage obtained by
dividing (a)
      the sum
      of the Tranche D Term Loan Exposure of that Lender, plus,
      the
      Revolving Credit Exposure of that Lender, plus,
      the New
      Term Loan Exposure of that Lender by (b)
      the sum
      of the aggregate Tranche D Term Loan Exposure of all Lenders, plus
      the
      aggregate Revolving Credit Exposure of all Lenders, plus
      the
      aggregate New Term Loan Exposure of all Lenders in any such case as the
      applicable percentage may be adjusted by assignments permitted pursuant to
      Section 10.6.
      The
      initial Pro Rata Share of each Lender for purposes of each of clauses (i) and
      (ii) of the preceding sentence is set forth opposite the name of that Lender
      in
Schedule 1.1(b)
      annexed
      hereto.

     

    
      
         

      

      
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    “Projections”
has
      the
      meaning assigned to that term in Section 4.24.

     

    “Proposed Reinvestment Proceeds”
has
      the
      meaning assigned to that term in Section 2.13(a).

     

    “RCRA”
means
      the Resource Conservation and Recovery Act and any state equivalents, as any
      of
      the same may be amended from time to time, and any successors
      thereto.

     

    “Real Property Asset”
means,
      at any time of determination, any interest then owned in fee simple by any
      Credit Party in any real property.

     

    “Refinanced
      Term Loan”
has
      the
      meaning assigned to that term in Section 10.5(f).

     

    “Refunded Swing Line Loan”
has
      the
      meaning assigned to that term in Section 2.2(e).

     

    “Refunding
      Notice”
has
      the
      meaning assigned to that term in Section 2.2(e).

     

    “Register”
has
      the
      meaning assigned to that term in Section 2.6.

     

    “Regulation D”
means
      Regulation D of the Board of Governors of the Federal Reserve System, as in
      effect from time to time.

     

    “Reimbursement Date”
has
      the
      meaning assigned to that term in Section 2.3(d).

     

    “Related Agreements”
means,
      collectively, the Stock Purchase Agreement, the Stockholders Agreement, the
      Management Agreement, the Senior Subordinated Note Documents, the Tender Offer
      Documents, the Senior Unsecured Term Loan Agreement, the indenture governing
      the
      Parent Notes, and all documents relating to any of the foregoing.

     

    “Release”
means
      any release, spill, emission, leaking, pumping, pouring, injection, escaping,
      deposit, disposal, discharge, dispersal, dumping, leaching or migration of
      any
      Hazardous Material into the indoor or outdoor environment (including the
      abandonment or disposal of any barrels, containers or other closed receptacles
      containing any Hazardous Material), including the movement of any Hazardous
      Material through the air, soil, surface water or groundwater.

     

    “Replacement
      Term Loans”
has
      the
      meaning assigned to that term in Section 10.5(f).

     

    “Request for Issuance”
means
      a
      notice in the form of Exhibit
      A-3.

     

    “Requisite Class Lenders”
means,
      at any time of determination (i)
      for the
      Class of Lenders having Tranche D Term Loan Exposure, Lenders having or holding
      more than 50% of the sum of the aggregate Tranche D Term Loan Exposure of all
      Lenders, (ii)
      for the
      Class of Lenders having Revolving Credit Exposure, Lenders having or holding
      more than 50% of the sum of the aggregate Revolving Credit Exposure of all
      Lenders, and (iii)
      for each
      class of Lender having New Term Loan Exposure, Lenders having or holding more
      than 50% of the aggregate New Term Loan Exposure of that class.

     

    
      
         

      

      
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    “Requisite
      Lenders”
means
      Lenders having or holding more than 50% of the sum of (i)
      the
      aggregate Tranche D Term Loan Exposure of all Lenders, plus (ii)
      the
      aggregate Revolving Credit Exposure of all Lenders, plus (iii)
      the
      aggregate New Term Loan Exposure of all Lenders.

     

    “Responsible Officer”
means,
      as to any Person, any of the chairman of the board, the president, the chief
      executive officer, the chief financial officer, any senior or executive vice
      president, the general counsel, the treasurer or assistant treasurer, secretary
      or assistant secretary, the principal financial officer or principal accounting
      officer, of such Person.

     

    “Restricted Junior Payment”
means
      (i)
      any
      dividend or other distribution, direct or indirect, on account of any equity
      Securities of Holdings or its Subsidiaries now or hereafter outstanding, except
      a dividend or other distribution payable solely in shares of equity Securities,
      (ii)
      any
      redemption, retirement, sinking fund or similar payment, purchase or other
      acquisition for value, direct or indirect, of any equity Securities of Holdings
      or its Subsidiaries now or hereafter outstanding, (iii)
      any
      payment made to retire, or to obtain the surrender of, any outstanding warrants,
      options or other rights to acquire equity Securities of Holdings or its
      Subsidiaries now or hereafter outstanding, and (iv)
      any
      payment or prepayment of principal of, premium, if any, or interest on, or
      redemption, purchase, repurchase, retirement, defeasance (including in-substance
      or legal defeasance), sinking fund or similar payment with respect to, any
      Subordinated Indebtedness.

     

    “Retail
      Business”
means,
      the assets owned by, or the equity Securities of collectively, SC Holdings,
      Inc., a Delaware corporation and Gallery Corp., a Delaware corporation and
      each
      of their respective Subsidiaries.

     

    “Revolving Credit Exposure”
means,
      with respect to any Lender as of any date of determination (i)
      prior to
      the termination of the Revolving Loan Commitments, such Lender’s Revolving Loan
      Commitment; and (ii)
      after
      the termination of the Revolving Loan Commitments, the sum of (a)
      the
      aggregate outstanding principal amount of the Revolving Loans of such Lender,
      plus (b)
      in the
      case of Issuing Bank, the aggregate Letter of Credit Usage in respect of all
      Letters of Credit (net of any participations purchased by Lenders in such
      Letters of Credit or any unreimbursed drawing thereunder), plus (c)
      the
      aggregate amount of all participations purchased by such Lender in any
      outstanding Letters of Credit or any unreimbursed drawing under any Letter
      of
      Credit, plus (d)
      in the
      case of Swing Line Lender, the aggregate outstanding principal amount of all
      Swing Line Loans (net of any participation therein purchased by other Lenders),
      plus (e)
      the
      aggregate amount of all participations purchased by such Lender in any
      outstanding Swing Line Loans.

     

    “Revolving Loan”
means
      a
      Loan made by a Lender to Company pursuant to its Revolving Loan
      Commitment.

     

    
      
         

      

      
        31

        
          

        

      

      
         

      

    

    “Revolving Loan Commitment”
means
      the commitment of a Lender to make Revolving Loans to Company pursuant to
Section 2.2(a)(i)
      and/or
Section 2.25
      and
“Revolving Loan Commitments”
means
      such commitments of all Lenders in the aggregate. The amount of each Lender’s
      Revolving Loan Commitment is initially as set forth opposite the name of that
      Lender in Schedule 1.1(b)
      annexed
      hereto, and may be adjusted or reduced pursuant to the terms and conditions
      hereof. As of the Effective Date, the aggregate amount of the Revolving Loan
      Commitments shall be $75,000,000.

     

    “Revolving Loan Commitment Period”
means
      the period from the Effective Date to but excluding the Revolving Loan
      Commitment Termination Date. 

     

    “Revolving Loan Commitment Termination Date”
means
      the earliest to occur of (i)
      the
      sixth anniversary of the Closing Date, (ii)
      the date
      the Revolving Loan Commitments are permanently reduced to zero pursuant to
      Section 2.12(b),
      Section 2.13
      or
Section 2.14,
      and
(iii)
      the date
      of the termination of the Revolving Loan Commitments pursuant to Section 8.1.

     

    “Revolving Loan Lender”
means
      a
      Lender having a Revolving Loan Commitment.

     

    “Revolving Note”
means
      a
      promissory note in the form of Exhibit
      B-3,
      as it
      may be amended, restated, supplemented or otherwise modified from time to
      time.

     

    “Secured
      Parties”
has
      the
      meaning assigned to that term in the Pledge and Security Agreement.

     

    “Secured
      Obligations”
has
      the
      meaning assigned to that term in the Pledge and Security Agreement.

     

    “Securities”
means,
      with respect to any Person, any stock, shares, partnership or other similar
      interests, voting trust certificates, certificates of interest or participation
      in any profit-sharing agreement or arrangement, options, warrants, bonds,
      debentures, notes, or other evidences of indebtedness, secured or unsecured,
      convertible, subordinated or otherwise, or in general any instruments commonly
      known as “securities” or any certificates of interest, shares or participations
      in temporary or interim certificates for the purchase or acquisition of, or
      any
      right to subscribe to, purchase or acquire, any of the foregoing of such
      Person.

     

    “Securities Act”
means
      the Securities Act of 1933, as amended from time to time, and any successor
      statute.

     

    “Sellers”
means
      collectively, Simmons Holdings, LLC, a Delaware limited liability company,
      Fenway, the Management Investors and the ESOP.

     

    “Senior
      Unsecured Term Loan Agreement”
means
      the Senior Unsecured Term Loan and Guaranty Agreement dated as of the Closing
      Date among Company, Holdings, GSCP, as sole bookrunner, joint lead arranger
      and
      co-syndication agent, UBSS as joint lead arranger and co-syndication agent,
      DBNY, as administrative agent and the other agents and lenders party thereto
      as
      it may be amended, modified, renewed, refunded, replaced or refinanced or
      otherwise restructured in whole or in part from time to time whether by the
      same
      or any other agent, lender or group of lenders.

     

    
      
         

      

      
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    “Senior
      Unsecured Term Loans”
means
      the Senior Unsecured Term Loan and Guaranty Agreement of Company due 2012 in
      an
      aggregate principal amount of $140,000,000 made on the Closing Date under the
      Senior Unsecured Term Loan Agreement.

     

    “Senior Subordinated Note Documents”
means
      the Senior Subordinated Note Indenture, the Senior Subordinated Notes and each
      other document executed in connection with the Senior Subordinated Notes, as
      each such document may be amended, restated, supplemented or otherwise modified
      from time to time to the extent permitted under Section 6.11.

     

    “Senior Subordinated Note Indenture”
means
      the indenture dated December 19, 2003 pursuant to which the Senior Subordinated
      Notes are issued, as such indenture may thereafter be amended, restated,
      supplemented or otherwise modified from time to time to the extent permitted
      under Section 6.11
      or
      replaced pursuant to a refinancing permitted under Section
      6.1.

     

    “Senior Subordinated
      Notes”
means
      the Senior Subordinated Notes of Company in the aggregate principal amount
      not
      to exceed $200,000,000 and issued pursuant to the Senior Subordinated Note
      Indenture, with such changes thereto when executed as are permitted under
Section 6.11,
      which
      principal amount may be increased by amounts permitted to be incurred pursuant
      to Section 6.1
      and as
      such notes may thereafter be amended, restated, supplemented or otherwise
      modified from time to time to the extent permitted under Section 6.11
      or
      refinanced to the extent permitted under Section 6.1.

     

    “Series”
has
      the
      meaning assigned to that term in Section 2.25.

     

    “Simmons
      Holdco”
      means
      Simmons Holdings, Inc., a Delaware corporation, before giving effect to the
      Mergers.

     

    “Solvency
      Certificate”
means
      a
      certificate in the form of Exhibit
      G.

     

    “Solvent”
means,
      with respect to any Person, that as of the date of determination both
(i)
      (a)
      the then
      fair saleable value of the property of such Person is (1)
      greater
      than the total amount of liabilities (including contingent liabilities) of
      such
      Person and (2)
      not less
      than the amount that will be required to pay the probable liabilities on such
      Person’s then existing debts as they become absolute and matured considering all
      financing alternatives and potential asset sales reasonably available to such
      Person; (b)
      such
      Person’s capital is not unreasonably small in relation to its business or any
      contemplated or undertaken transaction; and (c)
      such
      Person does not intend to incur, or believe (nor should it reasonably believe)
      that it will incur, debts beyond its ability to pay such debts as they become
      due; and (ii)
      such
      Person is “solvent” within the meaning given that term and similar terms under
      applicable laws relating to fraudulent transfers and conveyances. For purposes
      of this definition, the amount of any contingent liability at any time shall
      be
      computed as the amount that, in light of all of the facts and circumstances
      existing at such time, represents the amount that can reasonably be expected
      to
      become an actual or matured liability.

     

    “Sponsor”
means
      Thomas H. Lee Partners, L.P. and its Affiliates.

     

    
      
         

      

      
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    “Standby Letter of Credit”
means
      any standby letter of credit or similar instrument issued for the purpose of
      supporting (i)
      workers’
compensation liabilities of Company or any of its Subsidiaries, (ii)
      the
      obligations of third party insurers of Company or any of its Subsidiaries
      arising by virtue of the laws of any jurisdiction requiring third party
      insurers, (iii)
      performance, payment, deposit or surety obligations of Company or any of its
      Subsidiaries, in any case if required by law or governmental rule or regulation
      or in accordance with custom and practice in the industry, and (iv)
      such
      other obligations of Company and its Subsidiaries as may be reasonably
      acceptable to Administrative Agent.

     

    “Stock
      Purchase Agreement”
means
      that certain Stock Purchase Agreement dated as of November 17, 2003, by and
      among Simmons Holdco, THL Company, and the Sellers.

     

    “Subordinated
      Indebtedness”
means
      (i)
      the
      Indebtedness of Company under the Senior Subordinated Note Documents; and
(ii)
      any
      other Permitted Subordinated Indebtedness and, in each case, any Permitted
      Refinancing Indebtedness with respect thereto.

     

    “Subsidiary”
means,
      with respect to any Person, any corporation, partnership, limited liability
      company, association, joint venture or other business entity of which more
      than
      50% of the total voting power of shares of stock or other ownership interests
      entitled (without regard to the occurrence of any contingency) to vote in the
      election of the Person or Persons (whether directors, managers, trustees or
      other Persons performing similar functions) having the power to direct or cause
      the direction of the management and policies thereof is at the time owned or
      controlled, directly or indirectly, by that Person or one or more of the other
      Subsidiaries of that Person or a combination thereof.

     

    “Subsidiary
      Guarantor”
means
      any Domestic Subsidiary of Company that is a party hereto as of the Effective
      Date and is not identified as a Non-Guarantor Subsidiary on Schedule
      4.1
      or
      becomes a party to the Guaranty at any time after the Effective Date pursuant
      to
Section 5.9.

     

    “Supplemental Collateral Agent”
has
      the
      meaning assigned to that term in Section 9.8(c).

     

    “Swing Line
      Lender”
means
      Deutsche Bank A.G., Cayman Islands branch, in its capacity as Swing Line Lender
      hereunder, together with its permitted successors and assigns in such
      capacity.

     

    “Swing Line
      Loan”
means
      a
      Loan made by Swing Line Lender to Company pursuant to Section 2.2(a)(ii).

     

    “Swing Line Loan
      Commitment”
means
      the commitment of Swing Line Lender to make Swing Line Loans to Company pursuant
      to Section 2.2(a)(ii).

     

    “Swing Line
      Note”
means
      a
      promissory note substantially in the form of Exhibit
      B-4,
      as it
      may be amended, restated, supplemented or otherwise modified from time to
      time.

     

    “Swing Line Sublimit”
means
      the lesser of (i)
      $10,000,000, and (ii)
      the
      aggregate amount of Revolving Loan Commitments then in effect.

     

    
      
         

      

      
        34

        
          

        

      

      
         

      

    

    “Syndication
      Agent”
means
      GSCP in its capacity as syndication agent.

     

    “Tax”
means
      any present or future tax, levy, impost, duty, charge, fee, deduction or
      withholding of any nature and whatever called, by a governmental authority,
      on
      whomsoever and wherever imposed, levied, collected, withheld or assessed;
provided,
      “Tax
      on the overall net income”
of
      a
      Person shall be construed as a reference to a tax imposed by the jurisdiction
      in
      which that Person is organized or in which that Person’s principal office
      (and/or, in the case of a Lender, its lending office) is located or in which
      that Person (and/or, in the case of a Lender, its lending office) is deemed
      to
      be doing business, on all or part of the net income, profits or gains (whether
      worldwide, or only insofar as such income, profits or gains are considered
      to
      arise in or to relate to a particular jurisdiction, or otherwise, including,
      franchise taxes or taxes substantially similar to franchise taxes) of that
      Person (and/or, in the case of a Lender, its lending office).

     

    “Tender
      Offer”
      means
      the offer by Company to purchase at least 50% of the outstanding Existing Notes
      pursuant to the Tender Offer Documents.

     

    “Tender
      Offer Documents”
      means
      the Offer to Purchase and Consent Solicitation Statement and the Consent of
      Company dated November 18, 2003.

     

    “Term Loan”
means
      a
      Tranche D Term Loan or a New Term Loan.

     

    “Termination
      Date”
means
      the date upon which all of the Commitments of the Lenders hereunder have
      terminated, any Loan or any other non-contingent Obligation which is accrued
      has
      been paid or satisfied in full in Cash and no Letters of Credit are then
      outstanding.

     

    “THL
      Company”
has
      the
      meaning assigned to that term in the recitals hereto, a predecessor to the
      Company.

     

    “Title Company”
means,
      collectively, First American Title Insurance Company and/or one or more other
      title insurance companies reasonably satisfactory to the Agents.

     

    “Total
      Leverage Ratio”
means
      the ratio, as of any date of determination of (i)
      Consolidated Total Debt as of such date plus (A)
      any
      outstanding Indebtedness incurred by Holdings pursuant to Section 6.1(p)
      minus
(B)
      Cash
      and
      Cash Equivalents of Company and its Subsidiaries as of such date not in excess
      of $30,000,000 to (ii)
      Consolidated Adjusted EBITDA for the most recent four-Fiscal Quarter period
      ended on or prior to such date. 

     

    “Total Utilization of Revolving Loan
      Commitments”
means,
      as at any date of determination, the sum of (i)
      the
      aggregate principal amount of all outstanding Revolving Loans (other than
      Revolving Loans made for the purpose of repaying any Refunded Swing Line Loans
      or reimbursing Issuing Bank for any amount drawn under any Letter of Credit
      but
      not yet so applied), plus (ii)
      the
      aggregate principal amount of all outstanding Swing Line Loans, plus (iii)
      the
      Letter of Credit Usage.

     

    “Tranche
      D Term Loan”
means
      a
      Loan made on the Effective Date by a Lender to Company pursuant to Section 2.1.

     

    
      
         

      

      
        35

        
          

        

      

      
         

      

    

    “Tranche
      D Term Loan Amount”
means
      the amount of the Tranche D Term Loan to be lent by a Lender to Company. The
      Tranche D Term Loan Amount of each Lender is initially as set forth opposite
      the
      name of that Lender in Schedule 1.1(b)
      annexed
      hereto, and may be adjusted or reduced pursuant to the terms and conditions
      hereof. As of the Effective Date, the aggregate amount of the Tranche D Term
      Loan Amounts shall be $492 million.

     

    “Tranche
      D Term Loan Exposure”
means,
      with respect to any Lender, as of any date of determination, the outstanding
      principal amount of the Tranche D Term Loans of such Lender; provided,
      at any
      time prior to the making of the Tranche D Term Loans, the Tranche D Term Loan
      Exposure of any Lender shall be equal to such Lender’s Tranche D Term Loan
      Amount.

     

    “Tranche
      D Term Loan Maturity Date”
means
      the earlier of (i)
      December
      19, 2011, and (ii)
      the date
      that all Tranche D Term Loans shall become due and payable in full hereunder,
      whether by acceleration or otherwise.

     

    “Tranche
      D Term Loan Note”
means
      a
      promissory note substantially in the form of Exhibit
      B-1,
      as it
      may be amended, restated, supplemented or otherwise modified from time to
      time.

     

    “Transaction
      Costs”
means
      the fees, costs and expenses payable by Company on or before the Closing Date
      in
      connection with the transactions contemplated by the Credit Documents and the
      Related Agreements.

     

    “Trustee”
means
      State Street Bank & Trust Company as trustee of the ESOP.

     

    “Type”
means
      (i)
      with
      respect to either Term Loans or Revolving Loans, a Base Rate Loan or a
      Eurodollar Rate Loan, and (ii)
      with
      respect to Swing Line Loans, a Base Rate Loan. 

     

    “UBSS”
has
      the
      meaning assigned to that term in the preamble hereto.

     

    “UCC”
means
      the Uniform Commercial Code (or any similar or equivalent legislation) as in
      effect in any applicable jurisdiction.

     

    “Unfunded Benefit
      Liabilities”
has
      the
      meaning assigned to that term in Section 4.19.

     

    “US
      Lender”
has
      the
      meaning assigned to that term in Section 2.20(d).

     

    1.2  Accounting
      Terms

     

    Except
      as
      otherwise expressly provided herein, all accounting terms not otherwise defined
      herein shall have the meanings assigned to them in conformity with GAAP.
      Financial statements and other information required to be delivered by Company
      to Administrative Agent pursuant to Section 5.1(a),
      5.1(b)
      and
5.1(c)
      shall be
      prepared in accordance with GAAP as in effect at the time of such preparation
      (and delivered together with the reconciliation statements provided for in
      Section 5.1(e),
      if
      applicable); provided,
      that
      all calculations in connection with financial definitions and financial
      covenants set forth in Section
      6.6
      shall
      utilize accounting principles and policies in conformity with those used to
      prepare the Historical Financial Statements; provided,
      further,
      if
      Company notifies the Administrative Agent that Company wishes to amend any
      covenant in Section 2.13
      or
Section 6
      or any
      related definition to eliminate the effect of any change in GAAP occurring
      after
      the date of this Agreement on the operation of such covenant (or if
      Administrative Agent notifies Company that the Requisite Lenders wish to amend
      Section 2.13,
      Section 6
      or any
      related definition for such purpose), then (i)
      Company
      and Administrative Agent shall negotiate in good faith to agree upon an
      appropriate amendment to such covenant and (ii)
      Company’s compliance with such covenant shall be determined on the basis of GAAP
      in effect immediately before the relevant change in GAAP became effective until
      such covenant is amended in a manner satisfactory to Company and Requisite
      Lenders. 

     

    
      
         

      

      
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    1.3  Interpretation,
      etc.

     

    Any
      of
      the terms defined herein may, unless the context otherwise requires, be used
      in
      the singular or the plural, depending on the reference. References herein to
      any
      Section, Exhibit or Schedule shall be to a Section, an Exhibit and a Schedule,
      respectively, hereof unless otherwise specifically provided. The use herein
      of
      the word “include”
or
      “including”,
      when
      following any general statement, term or matter, shall not be construed to
      limit
      such statement, term or matter to the specific items or matters set forth
      immediately following such word or to similar items or matters, whether or
      not
      nonlimiting language (such as “without
      limitation”
or
      “but
      not limited to”
or
      words of similar import) is used with reference thereto, but rather shall be
      deemed to refer to all other items or matters that fall within the broadest
      possible scope of such general statement, term or matter. Furthermore, when
      the
      performance of any covenant, duty or other non-monetary obligation is stated
      to
      be required on a day which is not a Business Day, the date of such performance
      shall extend to the immediately succeeding Business Day. Except as otherwise
      set
      forth in this Agreement, whenever any payment to be made hereunder shall be
      stated to be due on a day that is not a Business Day, such payment shall be
      made
      on the next succeeding Business Day and such extension of time shall be included
      in the computation of the payment of interest hereunder or of the commitment
      fees hereunder, as the case may be. For purposes of this Agreement and the
      other
      Credit Documents, Letters of Credit which have been cash collateralized or
      otherwise backstopped shall not be deemed to be outstanding Letters of
      Credit.

     

    SECTION
      2.   CREDIT
      EXTENSIONS

     

    2.1  Tranche
      D Term Loans

     

    (a)   Subject
      to and upon the
      terms and conditions herein set forth, each of the Continuing Lenders agrees
      that the Existing Tranche C Term Loans made by such Continuing Lender under
      the
      Existing Credit Agreement shall remain outstanding on and after the Effective
      Date as “Tranche D Term Loans” made pursuant to this Agreement in the same pro
      rata amount of such Continuing Lenders pro rata share of the Existing Tranche
      C
      Term Loans and such Existing Tranche C Term Loans shall on and after the
      Effective Date have all of the rights and benefits of Tranche D Term Loans
      as
      set forth in this Agreement and the other Credit Documents.

     

    (b)  Subject
      to the terms and conditions hereof, each Lender (other than a Continuing Lender)
      severally agrees to lend to Company on the Effective Date, a Tranche D Term
      Loan
      in an amount equal to such Lender’s Tranche D Term Loan Amount to be used for
      the purposes identified in Section 2.5.

     

    (c)  Any
      amount borrowed under this Section 2.1, and subsequently repaid or prepaid,
      may
      not be reborrowed.

     

    
      
         

      

      
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    2.2  Revolving
      Loans and Swing Line Loans

     

    (a)   During
      the Revolving Loan
      Commitment Period, subject to the terms and conditions hereof, (i)
      each
      Lender severally agrees to make Revolving Loans to Company in the aggregate
      amount up to but not exceeding such Lender’s Revolving Loan Commitment, and
(ii)
      Swing
      Line Lender hereby agrees to make Swing Line Loans to Company in an aggregate
      amount up to but not exceeding the Swing Line Sublimit, in each case to be
      used
      for the purposes identified in Section 2.5.
      Amounts
      borrowed pursuant to this Section 2.2
      may be
      repaid and reborrowed during the Revolving Loan Commitment Period. Each Lender’s
      Revolving Loan Commitment, and Swing Line Lender’s Swing Line Loan Commitment,
      shall expire on the Revolving Loan Commitment Termination Date and all Revolving
      Loans and all Swing Line Loans and all other amounts owed hereunder with respect
      to the Revolving Loans, the Swing Line Loans, the Revolving Loan Commitments
      and
      the Swing Line Loan Commitment shall be paid in full no later than such date.
      

     

    (b)  Except
      pursuant to Section 2.2(e)
      or
Section 2.3(d),
      (i)
      Revolving Loans that are Base Rate Loans shall be made in an aggregate minimum
      amount of $500,000 and integral multiples of $100,000 in excess of that amount,
      (ii)
      Eurodollar Rate Revolving Loans shall be made in an aggregate minimum amount
      of
      $2,000,000 and integral multiples of $500,000 in excess of that amount, and
      (iii)
      Swing
      Line Loans shall be made in an aggregate minimum amount of $250,000 and integral
      multiples of $100,000 in excess of that amount. Anything contained herein to
      the
      contrary notwithstanding, in no event shall the Total Utilization of Revolving
      Loan Commitments at any time exceed the Revolving Loan Commitments then in
      effect.

     

    (c)  Whenever
      Company desires that Lenders make Loans, Company shall deliver to Administrative
      Agent a fully executed and delivered Funding Notice no later than 12:00 noon
      (New York City time) (i)
      at least
      three (3) Business Days in advance of the proposed Credit Extension Date in
      the
      case of a Eurodollar Rate Loan; and (ii)
      at least
      one (1) Business Day in advance of the proposed Credit Extension Date in the
      case of a Base Rate Loan; provided,
      whenever Company desires that Swing Line Lender make a Swing Line Loan, it
      shall
      deliver to Administrative Agent a Funding Notice no later than 12:00 noon (New
      York City time) on the proposed Credit Extension Date. Except as otherwise
      provided herein, a Funding Notice for a Eurodollar Rate Loan (or telephonic
      notice in lieu thereof) shall be irrevocable on and after the related Interest
      Rate Determination Date, and Company shall be bound to make a borrowing in
      accordance therewith. Promptly after receipt by Administrative Agent of a
      Funding Notice (or telephonic notice in lieu thereof), Administrative Agent
      shall notify each Lender or Swing Line Lender, as the case may be, of the
      proposed borrowing.

     

    (d)  Each
      Lender shall make the amount of its Loan available to Administrative Agent
      not
      later than 12:00 noon (New York City time) on the applicable Credit Extension
      Date, and Swing Line Lender shall make the amount of its Swing Line Loan
      available to Administrative Agent not later than 2:30 p.m. (New York City time)
      on the applicable Credit Extension Date, in each case by wire transfer of same
      day funds in Dollars, at the Funding and Payment Office (or, in the case of
      Swing Line Loans, at such other place as Administrative Agent, Company and
      Swing
      Line Lender may approve). Except as provided herein, upon satisfaction or waiver
      of the conditions precedent specified herein, Administrative Agent shall make
      the proceeds of such Loans available to Company on the applicable Credit
      Extension Date by causing an amount of same day funds in Dollars equal to the
      proceeds of all such Loans received by Administrative Agent from Lenders or
      Swing Line Lender, as the case may be, to be credited to the account of Company
      at the Funding and Payment Office (or, in the case of Swing Line Loans, at
      such
      other place as Administrative Agent, Company and Swing Line Lender may approve).
      

     

    
      
         

      

      
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    (e)  With
      respect to any Swing Line Loan that has not been voluntarily prepaid by Company,
      Swing Line Lender may, at any time in its sole and absolute discretion, deliver
      to Administrative Agent (with a copy to Company), no later than 10:00 a.m.
      (New
      York City time) on the first Business Day in advance of the proposed Credit
      Extension Date, a notice (the “Refunding
      Notice”)
      (which
      shall be deemed to be a Funding Notice given by Company) requesting Lenders
      having Revolving Credit Exposure to make Revolving Loans that are Base Rate
      Loans on such Credit Extension Date in an amount equal to the amount of such
      Swing Line Loans (each, a “Refunded
      Swing Line Loan”)
      outstanding on the date of such Refunding Notice. Promptly after receipt by
      Administrative Agent of a Refunding Notice, Administrative Agent shall notify
      each such Lender thereof. Anything contained herein to the contrary
      notwithstanding, the proceeds of such Revolving Loans made by Lenders shall
      be
      immediately delivered by Administrative Agent solely to Swing Line Lender and
      applied to repay a corresponding amount of the applicable Refunded Swing Line
      Loans. Company hereby authorizes Administrative Agent and Swing Line Lender
      to
      charge Company’s accounts, if any (up to the amount available in each such
      account) in order to immediately pay Swing Line Lender the amount of the
      Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans
      made by Lenders are not sufficient to repay in full the Refunded Swing Line
      Loans. If any portion of any such amount paid to Swing Line Lender should be
      recovered by or on behalf of Company from Swing Line Lender in bankruptcy,
      by
      assignment for the benefit of creditors or otherwise, the loss of the amount
      so
      recovered shall be ratably shared among all Lenders having Revolving Credit
      Exposure in the manner contemplated by Section 10.4.

     

    (f)  If
      for
      any reason (i)
      Revolving Loans are not made upon the request of Swing Line Lender as provided
      in Section 2.2(e)
      in an
      amount sufficient to repay any amounts owed to Swing Line Lender in respect
      of
      any outstanding Swing Line Loans; or (ii)
      the
      Revolving Loan Commitments are terminated at a time when any Swing Line Loans
      are outstanding, then, in either case, each Lender having Revolving Credit
      Exposure shall be deemed to, and hereby agrees to, have purchased a
      participation in such outstanding Swing Line Loans in an amount equal to its
      Pro
      Rata Share (calculated, in the case of this clause (ii), immediately prior
      to
      such termination of the Revolving Loan Commitments) of the unpaid amount of
      such
      Swing Line Loans together with accrued interest thereon. Upon one Business
      Day’s
      notice from Swing Line Lender, each such Lender shall deliver to Swing Line
      Lender an amount equal to its respective participation in same day funds at
      the
      Funding and Payment Office. In order to further evidence such participation
      (and
      without prejudice to the effectiveness of the participation provisions set
      forth
      above), each such Lender agrees to enter into a separate participation agreement
      at the request of Swing Line Lender in form and substance reasonably
      satisfactory to Swing Line Lender. In the event any such Lender fails to make
      available to Swing Line Lender the amount of such Lender’s participation as
      provided herein, Swing Line Lender shall be entitled to recover such amount
      on
      demand from such Lender together with interest thereon at the rate customarily
      used by Swing Line Lender for the correction of errors among banks for three
      (3)
      Business Days and thereafter at the Base Rate. In the event Swing Line Lender
      receives a payment of any amount in which other Lenders have purchased
      participations as provided herein, Swing Line Lender shall promptly distribute
      to each such other Lender its Pro Rata Share of such payment. In addition,
      in
      the case of each Lender that is deemed to have purchased a participation in
      such
      outstanding Swing Line Loan as specified in this Section 2.2(f),
      the
      Swing Line Lender (i)
      shall
      keep a register, meeting the requirements of Temporary Treasury Regulation
      Section 5f.103-1(c), of each such Lender, specifying such Lender’s entitlement
      to payments of principal and interest with respect to such participation, and
      (ii)
      shall
      collect, prior to the time such Lender receives payments, from each such Lender
      the appropriate forms, certificates and statements described in Section 2.20
      (and
      updated as required by Section 2.20)
      as if
      such Lender were a Lender under Section 2.20.

     

    
      
         

      

      
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    (g)  Anything
      contained herein to the contrary notwithstanding, each such Lender’s obligation
      to make Revolving Loans for the purpose of repaying any Refunded Swing Line
      Loans, and each such Lender’s obligation to purchase a participation in any
      unpaid Swing Line Loans, shall be absolute and unconditional and shall not
      be
      affected by any circumstance, including (i)
      any
      set-off, counterclaim, recoupment, defense or other right which such Lender
      may
      have against Swing Line Lender, any Credit Party or any other Person for any
      reason whatsoever; (ii)
      the
      occurrence or continuation of an Event of Default or a Default; (iii)
      any
      adverse change in the business, operations, properties, assets, condition
      (financial or otherwise) or prospects of Company or any of its Subsidiaries;
      (iv)
      any
      breach hereof or any other Credit Document by any party thereto; or (v)
      any
      other circumstance, happening or event whatsoever, whether or not similar to
      any
      of the foregoing; provided,
      such
      obligations of each such Lender are subject to the condition that (1)
      Swing
      Line Lender believed in good faith that all conditions under Section 3
      to the
      making of the applicable Refunded Swing Line Loans or other unpaid Swing Line
      Loans, as the case may be, were satisfied at the time such Refunded Swing Line
      Loans or unpaid Swing Line Loans were made, or (2)
      the
      satisfaction of any such condition not satisfied had been waived in accordance
      with Section 10.5
      prior to
      or at the time such Refunded Swing Line Loans or other unpaid Swing Line Loans
      were made.

     

    2.3  Letters
      of Credit

     

    (a)   During
      the Revolving Loan
      Commitment Period, subject to the terms and conditions hereof, Company may
      request from time to time (but in no event later than the date that is thirty
      (30) days prior to the Revolving Loan Commitment Termination Date) that one
      or
      more Lenders issue Letters of Credit for the account of Company for the purposes
      specified in the definitions of Commercial Letters of Credit and Standby Letters
      of Credit; provided
      that all
      such Letters of Credit shall provide for sight drawings. Subject to the terms
      and conditions of this Agreement and in reliance upon the representations and
      warranties of Company herein set forth, any one or more Lenders may, but (except
      as provided herein) shall not be obligated to, issue such Letters of Credit
      in
      accordance with the provisions hereof; provided,
      Company
      shall not request that any Lender issue, and no Lender shall issue: (i)
      any
      Letter of Credit if, after giving effect to such issuance, the Total Utilization
      of Revolving Loan Commitments would exceed the Revolving Loan Commitments then
      in effect; (ii)
      any
      Letter of Credit if, after giving effect to such issuance, the Letter of Credit
      Usage would exceed the Letter of Credit Sublimit then in effect;
      (iii)
      any
      Standby Letter of Credit having an expiration date later than the earlier of
      (1)
      the 10th
      Business Day prior to the Revolving Loan Commitment Termination Date and
(2)
      the date
      which is one year after the date of issuance of such Standby Letter of Credit.
      Notwithstanding the foregoing, Issuing Bank may agree that the expiration date
      of a Standby Letter of Credit will be automatically extended for one or more
      successive periods not to exceed one year each unless the Issuing Bank elects
      not to extend the expiration date for any such additional period and further
      provided that no expiration date for a Standby Letter of Credit will be extended
      beyond the 10th Business Day prior to the Revolving Loan Commitment Termination
      Date; (iv)
      any
      Commercial Letter of Credit having an expiration date (a)
      later
      than the earlier of (1)
      the 30th
      day prior to the Revolving Loan Commitment Termination Date and (2)
      the date
      which is 180 days after the date of issuance of such Commercial Letter of Credit
      (or such other date as shall be agreed to by the Issuing Bank) or (b)
      that is
      otherwise unacceptable to the Issuing Bank in its reasonable discretion; or
      (v)
      any
      Letter of Credit denominated in a currency other than Dollars.

     

    
      
         

      

      
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    (b)  Whenever
      Company desires the issuance of a Letter of Credit, it shall deliver to
      Administrative Agent a Request for Issuance no later than 12:00 noon (New York
      City time) at least three (3) Business Days (in the case of Standby Letters
      of
      Credit) or five (5) Business Days (in the case of Commercial Letters of Credit),
      or in each case such shorter period as may be agreed to by Issuing Bank in
      any
      particular instance, in advance of the proposed date of issuance. Issuing Bank,
      in its reasonable discretion, may require changes in the text of the proposed
      Letter of Credit or any such documents. Upon receipt by Administrative Agent
      of
      a Request for Issuance pursuant to this Section, in the event Administrative
      Agent elects to issue such Letter of Credit, Administrative Agent shall promptly
      so notify Company, and Administrative Agent shall be Issuing Bank with respect
      thereto. In the event that Administrative Agent, in its sole discretion, elects
      not to issue such Letter of Credit, Administrative Agent shall promptly so
      notify Company, whereupon Company may request any other Lender to issue such
      Letter of Credit by delivering to such Lender a copy of the applicable Request
      for Issuance. Any Lender so requested to issue such Letter of Credit shall
      promptly notify Company and Administrative Agent whether or not, in its sole
      discretion, it has elected to issue such Letter of Credit, and any such Lender
      which so elects to issue such Letter of Credit shall be the Issuing Bank with
      respect thereto. In the event that all other Lenders shall have declined to
      issue such Letter of Credit, notwithstanding the prior election of
      Administrative Agent not to issue such Letter of Credit, Administrative Agent
      shall be obligated to issue such Letter of Credit and shall be Issuing Bank
      with
      respect thereto, notwithstanding the fact that the Letter of Credit Usage with
      respect to such Letter of Credit and with respect to all other Letters of Credit
      issued by Administrative Agent, when aggregated with Administrative Agent’s
      outstanding Revolving Loans and Swing Line Loans, may exceed Administrative
      Agent’s Revolving Loan Commitment then in effect. Upon satisfaction or waiver of
      the conditions set forth in Section 3.2,
      Issuing
      Bank shall issue the requested Letter of Credit. Upon the issuance or amendment
      of any Standby Letter of Credit, Issuing Bank shall notify the Administrative
      Agent and the Company, in writing of such issuance or amendment and such notice
      shall be accompanied by a copy of such issuance or amendment. Promptly after
      the
      receipt of such notice, the Administrative Agent shall notify each Lender,
      in
      writing, of such issuance or amendment and in the event any Lender shall so
      request, the Administrative Agent shall provide such Lender with copies of
      such
      issuance or amendment. With regard to Commercial Letters of Credit, each Issuing
      Bank shall on the first Business Day of each week furnish the Administrative
      Agent, by facsimile, with a report detailing the daily aggregate outstanding
      Commercial Letters of Credit for such Issuing Bank during the previous
      week.

     

    
      
         

      

      
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    (c)  In
      determining whether to honor any drawing under any Letter of Credit by the
      beneficiary thereof, Issuing Bank shall be responsible only to examine the
      documents delivered under such Letter of Credit with reasonable care so as
      to
      ascertain whether they appear on their face to be in accordance with the terms
      and conditions of such Letter of Credit. As between Company and Issuing Bank,
      Company assumes all risks of the acts and omissions of, or misuse of the Letters
      of Credit issued by Issuing Bank by, the respective beneficiaries of such
      Letters of Credit. In furtherance and not in limitation of the foregoing,
      Issuing Bank shall not be responsible for: (i)
      the
      form, validity, sufficiency, accuracy, genuineness or legal effect of any
      document submitted by any party in connection with the application for and
      issuance of any such Letter of Credit, even if it should in fact prove to be
      in
      any or all respects invalid, insufficient, inaccurate, fraudulent or forged;
      (ii)
      the
      validity or sufficiency of any instrument transferring or assigning or
      purporting to transfer or assign any such Letter of Credit or the rights or
      benefits thereunder or proceeds thereof, in whole or in part, which may prove
      to
      be invalid or ineffective for any reason; (iii)
      failure
      of the beneficiary of any such Letter of Credit to comply fully with any
      conditions required in order to draw upon such Letter of Credit, except to
      the
      extent that such failure is the result of the gross negligence or willful
      misconduct of the Issuing Bank, as determined by a final and non-appealable
      judgment of a court of competent jurisdiction; (iv)
      errors,
      omissions, interruptions or delays in transmission or delivery of any messages,
      by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
      (v)
      errors
      in interpretation of technical terms; (vi)
      any loss
      or delay in the transmission or otherwise of any document required in order
      to
      make a drawing under any such Letter of Credit or of the proceeds thereof;
      (vii)
      the
      misapplication by the beneficiary of any such Letter of Credit of the proceeds
      of any drawing under such Letter of Credit; or (viii)
      any
      consequences arising from causes beyond the control of Issuing Bank, including
      any Governmental Acts, and none of the above shall affect or impair, or prevent
      the vesting of, any of Issuing Bank’s rights or powers hereunder. Without
      limiting the foregoing and in furtherance thereof, any action taken or omitted
      by Issuing Bank under or in connection with the Letters of Credit or any
      documents and certificates delivered thereunder, if taken or omitted in good
      faith (and without gross negligence or willful misconduct, as determined by
      a
      final and non-appealable judgment of a court of competent jurisdiction and
      in
      accordance with the standard of care specified in the UCC with respect to
      Letters of Credit), shall not put Issuing Bank under any resulting liability
      to
      Company. Notwithstanding anything to the contrary contained in this Section 2.3(c),
      Company
      shall retain any and all rights it may have against Issuing Bank for any
      liability arising solely out of the gross negligence or willful misconduct
      of
      Issuing Bank, as determined by a final and non-appealable judgment of a court
      of
      competent jurisdiction or failure of such Issuing Bank to use the standard
      of
      care specified in the UCC with respect to Letters of Credit.

     

    
      
         

      

      
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    (d)  In
      the
      event Issuing Bank has determined to honor a drawing under a Letter of Credit,
      it shall immediately notify Company and Administrative Agent, and Company shall
      reimburse Issuing Bank on or before the Business Day immediately following
      the
      date on which such drawing is honored (the “Reimbursement
      Date”)
      in an
      amount in Dollars and in same day funds equal to the amount of such honored
      drawing; provided,
      anything contained herein to the contrary notwithstanding, (i)
      unless
      Company shall have notified Administrative Agent and Issuing Bank prior to
      11:00
      a.m. (New York City time) on the date such drawing is honored (or prior to
      11:00
      a.m. (New York City time) on the immediately following Business Day if such
      drawing is made after 11:00 a.m. on the previous Business Day) that Company
      intends to reimburse Issuing Bank for the amount of such honored drawing with
      funds other than the proceeds of Revolving Loans, Company shall be deemed to
      have given a timely Funding Notice to Administrative Agent requesting Lenders
      having a Revolving Loan Commitment to make Revolving Loans that are Base Rate
      Loans on the Reimbursement Date in an amount in Dollars equal to the amount
      of
      such honored drawing, and (ii)
      subject
      to satisfaction or waiver of the conditions specified in Section 3.2
      (and
      Administrative Agent shall promptly notify each such Lender of such deemed
      request), Lenders having a Revolving Loan Commitment shall, on the Reimbursement
      Date, make Revolving Loans that are Base Rate Loans in the amount of such
      honored drawing, the proceeds of which shall be applied directly by
      Administrative Agent to reimburse Issuing Bank for the amount of such honored
      drawing; and provided further,
      if for
      any reason proceeds of Revolving Loans are not received by Issuing Bank on
      the
      Reimbursement Date in an amount equal to the amount of such honored drawing,
      Company shall reimburse Issuing Bank, on demand, in an amount in same day funds
      equal to the excess of the amount of such honored drawing over the aggregate
      amount of such Revolving Loans, if any, which are so received. Nothing in this
      Section 2.3(d)
      shall be
      deemed to relieve any Lender having a Revolving Loan Commitment from its
      obligation to make Revolving Loans on the terms and conditions set forth herein,
      and Company shall retain any and all rights it may have against any such Lender
      resulting from the failure of such Lender to make such Revolving Loans under
      this Section 2.3(d).

     

    (e)  Immediately
      upon the issuance of each Letter of Credit, each Lender having a Revolving
      Loan
      Commitment shall be deemed to have irrevocably purchased, and hereby agrees
      to
      irrevocably purchase, from Issuing Bank a participation in such Letter of Credit
      and any drawings honored thereunder in an amount equal to such Lender’s Pro Rata
      Share (with respect to the Revolving Loan Commitments) of the maximum amount
      which is or at any time may become available to be drawn thereunder. In the
      event that Company shall fail for any reason to reimburse Issuing Bank as
      provided in Section 2.3(d),
      Issuing
      Bank shall promptly notify each such Lender of the unreimbursed amount of such
      honored drawing and of such Lender’s respective participation therein based on
      such Lender’s Pro Rata Share of the Revolving Loan Commitments. Each such Lender
      shall make available to Issuing Bank an amount equal to its respective
      participation, in Dollars and in same day funds, at the office of Issuing Bank
      specified in such notice, not later than 12:00 noon (New York City time) on
      the
      first Business Day (under the laws of the jurisdiction in which such office
      of
      Issuing Bank is located) after the date notified by Issuing Bank. In the event
      that any Lender having a Revolving Loan Commitment fails to make available
      to
      Issuing Bank on such business day the amount of such Lender’s participation in
      such Letter of Credit as provided in this Section 2.3(e),
      Issuing
      Bank shall be entitled to recover such amount on demand from such Lender
      together with interest thereon at the rate customarily used by Issuing Bank
      for
      the correction of errors among banks for three (3) Business Days and thereafter
      at the Base Rate. Nothing in this Section 2.3(e)
      shall be
      deemed to prejudice the right of any Lender to recover from Issuing Bank any
      amounts made available by such Lender to Issuing Bank pursuant to this Section
      in the event that it is determined by the final judgment of a court of competent
      jurisdiction that the payment with respect to a Letter of Credit in respect
      of
      which payment was made by such Lender constituted gross negligence or willful
      misconduct on the part of Issuing Bank or resulted from Issuing Bank’s failure
      to use the standard of care specified in the UCC with respect to Letters of
      Credit. In the event Issuing Bank shall have been reimbursed by other Lenders
      pursuant to this Section 2.3(e)
      for all
      or any portion of any drawing honored by Issuing Bank under a Letter of Credit,
      such Issuing Bank shall distribute to each Lender which has paid all amounts
      payable by it under this Section 2.3(e)
      with
      respect to such honored drawing such Lender’s Pro Rata Share of all payments
      subsequently received by Issuing Bank from Company in reimbursement of such
      honored drawing promptly when such payments are received. Any such distribution
      shall be made to a Lender at its primary address set forth below its name on
      the
      appropriate signature page hereof or at such other address as such Lender may
      request. In addition, in the case of each Lender that is deemed to have
      irrevocably purchased from Issuing Bank a participation in such Letter of Credit
      as specified in this Section 2.3(e),
      the
      Issuing Bank shall keep a register specifying such Lender’s entitlement to
      payments with respect to such participation in accordance with its normal
      business practice which is intended to meet the requirements of Temporary
      Treasury Regulation Section 5f.103-1(c). 

     

    
      
         

      

      
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    (f)  The
      obligation of Company to reimburse Issuing Bank for drawings honored under
      the
      Letters of Credit issued by it and to repay any Revolving Loans made by Lenders
      pursuant to Section 2.3(d)
      and the
      obligations of Lenders having Revolving Credit Exposure under Section 2.3(e)
      shall be
      unconditional and irrevocable and shall be paid strictly in accordance with
      the
      terms hereof under all circumstances including any of the following
      circumstances: (i)
      any lack
      of validity or enforceability of any Letter of Credit; (ii)
      the
      existence of any claim, set-off, defense or other right which Company or any
      Lender may have at any time against a beneficiary or any transferee of any
      Letter of Credit (or any Persons for whom any such transferee may be acting),
      Issuing Bank, Lender or any other Person or, in the case of a Lender, against
      Company, whether in connection herewith, the transactions contemplated herein
      or
      any unrelated transaction (including any underlying transaction between Company
      or one of its Subsidiaries and the beneficiary for which any Letter of Credit
      was procured); (iii)
      any
      draft or other document presented under any Letter of Credit proving to be
      forged, fraudulent, invalid or insufficient in any respect or any statement
      therein being untrue or inaccurate in any respect; (iv)
      payment
      by Issuing Bank under any Letter of Credit against presentation of a draft
      or
      other document which does not substantially comply with the terms of such Letter
      of Credit, except where such payment constitutes gross negligence or willful
      misconduct on the part of the Issuing Bank, as determined by a final and
      non-appealable judgment of a court of competent jurisdiction or results from
      Issuing Bank’s failure to use the standard of care specified in the UCC with
      respect to Letters of Credit; (v)
      any
      adverse change in the business, operations, properties, assets, condition
      (financial or otherwise) or prospects of Company or any of its Subsidiaries;
      (vi)
      any
      breach of this Agreement or any other Credit Document by any party thereto;
      (vii)
      any
      other circumstance or happening whatsoever, whether or not similar to any of
      the
      foregoing; or (viii)
      the fact
      that an Event of Default or a Default shall have occurred and be continuing;
      provided,
      in each
      case, that payment by Issuing Bank under the applicable Letter of Credit shall
      not have constituted gross negligence or willful misconduct of Issuing Bank,
      as
      determined by a final and non-appealable judgment of a court of competent
      jurisdiction or failure of such Issuing Bank to use the standard of care
      specified in the UCC with respect to Letters of Credit under the circumstances
      in question.

     

    (g)  In
      addition to amounts payable as provided herein, Company hereby agrees to
      protect, indemnify, pay and save harmless Issuing Bank from and against any
      and
      all claims, demands, liabilities, damages, losses, costs, charges and expenses
      (including reasonable fees, expenses and disbursements of outside counsel but
      excluding, any and all claims, demands, liabilities, damages, losses, costs,
      charges and expenses relating to Taxes (and any liabilities relating thereto),
      the indemnity for which shall be governed solely and exclusively by Section 2.20)
      which
      Issuing Bank may incur or be subject to as a consequence, direct or indirect,
      of
(i)
      the
      issuance of any Letter of Credit by Issuing Bank, other than as a result of
      (1)
      the
      gross negligence or willful misconduct of Issuing Bank, as determined by a
      final
      and non-appealable judgment of a court of competent jurisdiction or failure
      of
      such Issuing Bank to use the standard of care specified in the UCC with respect
      to Letters of Credit, or (2)
      subject
      to the following clause (ii),
      the
      wrongful dishonor by Issuing Bank of a proper demand for payment made under
      any
      Letter of Credit issued by it, or (ii)
      the
      failure of Issuing Bank to honor a drawing under any such Letter of Credit
      as a
      result of any Governmental Act.

     

    
      
         

      

      
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    2.4  Pro
      Rata Shares

     

    All
      Loans
      made and all participations purchased pursuant to Section 2.1,
      2.2
      and
Section 2.3
      shall be
      made or purchased, as the case may be, by Lenders simultaneously and
      proportionately to their respective applicable Pro Rata Shares, it being
      understood that no Lender shall be responsible for any default by any other
      Lender in such other Lender’s obligation to make a Loan requested hereunder or
      purchase a participation required hereby nor shall the Revolving Loan Commitment
      or Term Loan amount of any Lender be increased or decreased as a result of
      a
      default by any other Lender in such other Lender’s obligation to make a Loan
      requested hereunder or purchase a participation required hereby. Unless
      Administrative Agent shall have been notified by any Lender prior to the
      applicable Credit Extension Date that such Lender does not intend to make
      available to Administrative Agent the amount of such Lender’s Loan requested on
      such Credit Extension Date, Administrative Agent may assume that such Lender
      has
      made such amount available to Administrative Agent on such Credit Extension
      Date
      and Administrative Agent may, in its sole discretion, but shall not be obligated
      to, make available to Company a corresponding amount on such Credit Extension
      Date. If such corresponding amount is not in fact made available to
      Administrative Agent by such Lender, Administrative Agent shall be entitled
      to
      recover such corresponding amount on demand from such Lender together with
      interest thereon, for each day from such Credit Extension Date until the date
      such amount is paid to Administrative Agent, at the customary rate set by
      Administrative Agent for the correction of errors among banks for three (3)
      Business Days and thereafter at the Base Rate. If such Lender does not pay
      such
      corresponding amount forthwith upon Administrative Agent’s demand therefor,
      Administrative Agent shall promptly notify Company and Company shall immediately
      pay such corresponding amount to Administrative Agent together with interest
      thereon, for each day from such Credit Extension Date until the date such amount
      is paid to Administrative Agent, at the rate payable hereunder for Base Rate
      Loans. Nothing in this Section 2.4
      shall be
      deemed to relieve any Lender from its obligation to fulfill its Revolving Loan
      Commitments or its commitments to make Term Loans hereunder or to prejudice
      any
      rights that Company may have against any Lender as a result of any default
      by
      such Lender hereunder.

     

    2.5  Use
      of Proceeds

     

    The
      proceeds of (a)
      the
      Tranche D Term Loans made on the Effective Date shall be applied by Company
      to
      repay in full the (i) Existing Tranche C Term Loans that are not converting
      to
      Tranche D Term Loans on the Effective Date and (ii) Senior Unsecured Term Loans,
      (b)
      the
      Existing Tranche C Term Loans that are converting to Tranche D Term Loans as
      of
      the Effective Date shall remain outstanding on and after the Effective Date
      as
“Tranche D Term Loans” made pursuant to this Agreement in accordance with the
      provisions of Section 2.1(a)
      and
(c)
      the
      Revolving Loans, Swing Line Loans and Letters of Credit made on and after the
      Effective Date shall continue to be applied by Company for working capital
      and
      general corporate purposes of Parent and its Subsidiaries and other purposes
      permitted hereunder. The proceeds from any New Term Loans shall be applied
      by
      Company for working capital, general corporate purposes and other purposes
      permitted hereunder. No portion of the proceeds of any Credit Extension shall
      be
      used in any manner that causes or might cause such Credit Extension or the
      application of such proceeds to violate Regulation T, Regulation U or
      Regulation X of the Board of Governors of the Federal Reserve System or any
      other regulation thereof or to violate the Exchange Act. 

     

    
      
         

      

      
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    2.6  Notes;
      Register; Lenders’ Books and Records

     

    If
      so
      requested by any Lender by written notice to Company (with a copy to
      Administrative Agent) at least two Business Days prior to the Effective Date,
      or
      at any time thereafter, Company shall execute and deliver to such Lender
      (and/or, if applicable and if so specified in such notice, to any Person who
      is
      a permitted assignee of such Lender pursuant to Section
      10.6)
      on the
      Effective Date (or, if such notice is delivered after the Effective Date,
      promptly after Company’s receipt of such notice) a Note or Notes to evidence
      such Lender’s Tranche D Term Loan, New Term Loan, Revolving Loan or Swing
      Line Loan, as the case may be. Each Continuing Lender who has a Note evidencing
      its Existing Tranche C Term Loan shall promptly deliver to Company such Note
      in
      exchange for its Tranche D Term Loan Note. Any Note delivered to a Lender to
      evidence such Lender’s Revolving Loan or Swing Line Loan, as the case may be,
      under the Existing Credit Agreement shall continue to be a Note hereunder and
      shall evidence such Lender’s Revolving Loan or Swing Line Loan under this
      Agreement. Administrative Agent shall maintain, at its address referred to
      in
Section 10.1,
      a
      register for the recordation of the names and addresses of Lenders and Issuing
      Banks and the Revolving Loan Commitments and Loans of each Lender and Letters
      of
      Credit, and drawings honored under the Letters of Credit, issued by each Issuing
      Bank from time to time (the “Register”).
      The
      Register shall be available for inspection by Company or any Lender at any
      reasonable time and from time to time upon reasonable prior notice.
      Administrative Agent shall record in the Register the Revolving Loan Commitments
      and the Loans of each Lender and Letters of Credit, and drawings honored under
      the Letters of Credit, issued by each Issuing Bank, and each repayment or
      prepayment in respect of the principal amount of the Loans (and related interest
      payments with respect to the Loans) and any reimbursement amounts paid to each
      Issuing Bank pursuant to Section 2.3
      (and
      related interest payments), and any such recordation shall be conclusive and
      binding on Company and each Lender, absent demonstrable error; provided,
      failure
      to make any such recordation, or any error in such recordation, shall not affect
      any Lender’s Revolving Loan Commitment or Company’s Obligations in respect of
      any Loan. Company hereby designates the Administrative Agent to serve as
      Company’s agent solely for purposes of maintaining the Register as provided in
      this Section 2.6,
      and
      Company hereby agrees that, to the extent the Administrative Agent serves in
      such capacity, the Administrative Agent and its officers, directors, employees,
      agents and affiliates shall constitute Indemnitees for all purposes. Each Lender
      shall record on its internal records, including its Notes, the amount of the
      Loans and Letters of Credit made or issued, as the case may be, by it and each
      repayment and prepayment and interest payment in respect thereof. Any such
      recordation shall be conclusive and binding on Company, absent demonstrable
      error; provided,
      failure
      to make any such recordation, or any error in such recordation, shall not affect
      any Lender’s Commitments or Company’s Obligations in respect of any applicable
      Loans and Letters of Credit; and provided,
      further,
      in the
      event of any inconsistency between the Register and any Lender’s records, the
      recordations in the Register shall govern. Company, Administrative Agent and
      Lenders shall deem and treat the Persons listed as Lenders in the Register
      as
      the holders and owners of the corresponding Revolving Loan Commitments and
      Loans
      listed therein for all purposes hereof.

     

    
      
         

      

      
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    2.7  Interest
      Payments

     

    (a)   Except
      as otherwise set
      forth herein, each Class of Loan shall bear interest on the unpaid principal
      amount thereof from the date made through maturity (whether by acceleration
      or
      otherwise) at the sum of (x)
      the
      applicable interest rate for the Type of Loan of such Class plus (y)
      the
      Applicable Margin for such Type of Loan of such Class. The Type of any Loan
      (except a Swing Line Loan), and the Interest Period with respect to any
      Eurodollar Rate Loan, shall be selected by Company and notified to
      Administrative Agent and Lenders pursuant to the applicable Funding Notice
      or
      Conversion/Continuation Notice, as the case may be. If on any day a Loan is
      outstanding with respect to which notice has not been delivered to
      Administrative Agent in accordance with the terms hereof specifying the
      applicable basis for determining the rate of interest, then for that day such
      Loan shall be a Base Rate Loan. Notwithstanding anything contained herein to
      the
      contrary, in connection with Eurodollar Rate Loans (i)
      there
      shall be no more than 16 Interest Periods outstanding at any time; and
(ii)
      in the
      event Company fails to specify an Interest Period for any Eurodollar Rate Loan
      in the applicable Funding Notice or Conversion/Continuation Notice, Company
      shall be deemed to have selected an Interest Period of one month. As soon as
      practicable after 10:00 a.m. (New York City time) on each Interest Rate
      Determination Date, Administrative Agent shall determine (which determination
      shall, absent demonstrable error, be final, conclusive and binding upon all
      parties) the interest rate that shall apply to the Eurodollar Rate Loans for
      which an interest rate is then being determined for the applicable Interest
      Period and shall promptly give notice thereof (in writing or by telephone
      confirmed in writing) to Company and each Lender. The interest rates for the
      Tranche D Term Loans on the Effective Date shall be determined in the same
      manner and with the same Interest Periods as the Existing Tranche C Term Loans.
      The interest rates for the Tranche D Term Loans on the Effective Date shall
      be
      determined in the same manner and with the same Interest Periods as the Existing
      Tranche C Term Loans. Each Tranche D Term Loan Lender shall be allocated its
      pro
      rata share of Tranche D Term Loans set at the corresponding interest rates
      and
      Interest Periods as the Existing Tranche C Term Loans. Upon expiration of the
      applicable Interest Period for the Tranche D Term Loans on the Effective Date,
      each Eurodollar Rate Loan shall either be converted to a Base Rate Loan or
      continued as a Eurodollar Rate Loan at Company’s option pursuant to Section 2.8
      hereof.

     

    (b)  Company
      agrees to pay to Issuing Bank, with respect to drawings honored under any Letter
      of Credit honored by it, interest on the amount paid by Issuing Bank in respect
      of each such honored drawing from the date such drawing is honored to but
      excluding the date such amount is reimbursed by or on behalf of Company at
      a
      rate equal to (i)
      for the
      period from the date such drawing is honored to but excluding one day after
      the
      applicable Reimbursement Date, (1)
      the Base
      Rate, plus (2)
      the
      Applicable Margin for Revolving Loans that are Base Rate Loans, and (ii)
      thereafter, a rate which is 2% per annum in excess of the rate of interest
      otherwise payable hereunder with respect to Revolving Loans that are Base Rate
      Loans.

     

    
      
         

      

      
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    (c)  Interest
      payable hereunder shall be computed (i)
      in the
      case of Base Rate Loans, on the basis of a 365/6-day year, as the case may
      be,
      and (ii)
      in the
      case of Eurodollar Rate Loans, on the basis of a 360-day year, in each case
      for
      the actual number of days elapsed in the period during which it accrues. In
      computing interest on any Loan, the date of the making of such Loan or the
      first
      day of an Interest Period applicable to such Loan or, with respect to a Base
      Rate Loan being converted from a Eurodollar Rate Loan, the date of conversion
      of
      such Eurodollar Rate Loan to such Base Rate Loan, as the case may be, shall
      be
      included, and the date of payment of such Loan or the expiration date of an
      Interest Period applicable to such Loan or, with respect to a Base Rate Loan
      being converted to a Eurodollar Rate Loan, the date of conversion of such Base
      Rate Loan to such Eurodollar Rate Loan, as the case may be, shall be excluded;
      provided,
      if a
      Loan is repaid on the same day on which it is made, one day’s interest shall be
      paid on that Loan.

     

    (d)  Except
      as
      otherwise set forth herein, interest on each Loan shall be payable in arrears
      on
      and to (i)
      each
      Interest Payment Date applicable to that Loan; (ii)
      any
      prepayment of that Loan, to the extent accrued on the amount being prepaid;
      and
(iii)
      at
      maturity, including final maturity; provided,
      in the
      event any Swing Line Loan or any Revolving Loan that is a Base Rate Loan is
      prepaid pursuant to Section 2.12(a),
      interest accrued on such Swing Line Loan or Revolving Loan through the date
      of
      such prepayment shall be payable on the next succeeding Interest Payment Date
      applicable to Base Rate Loan, or, if earlier, at final maturity.

     

    (e)  Interest
      payable pursuant to Section 2.7(b)
      shall be
      payable on demand or, if no demand is made, on the date on which the related
      drawing honored under a Letter of Credit is reimbursed in full. Promptly upon
      receipt by Issuing Bank of any payment of interest pursuant to Section 2.7(b),
      (i)
      Issuing
      Bank shall distribute to each Lender having Revolving Credit Exposure, out
      of
      the interest received by Issuing Bank in respect of the period from the date
      such drawing is honored to but excluding the date on which Issuing Bank is
      reimbursed for the amount of such drawing (including any such reimbursement
      out
      of the proceeds of any Revolving Loans), the amount that such Lender would
      have
      been entitled to receive in respect of the letter of credit fee that would
      have
      been payable in respect of such Letter of Credit for such period if no drawing
      had been honored under such Letter of Credit, and (ii)
      in the
      event Issuing Bank shall have been reimbursed by Lenders for all or any portion
      of such honored drawing, Issuing Bank shall distribute to each Lender having
      Revolving Credit Exposure which has paid all amounts payable by it under
Section 2.3(e)
      with
      respect to such honored drawing such other Lender’s Pro Rata Share of any
      interest received by Issuing Bank in respect of that portion of such honored
      drawing so reimbursed by Lenders for the period from the date on which Issuing
      Bank was so reimbursed by Lenders to but excluding the date on which such
      portion of such honored drawing is reimbursed by Company. Any such distribution
      shall be made to a Lender at its primary address set forth below its name on
      the
      appropriate signature page hereof or at such other address as such Lender may
      request.

     

    
      
         

      

      
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    2.8  Conversion;
      Continuation

     

    Company
      shall have the option (a)
      to
      convert at any time all or any part of any Class of Loans from one Type of
      Loan
      to another Type of Loan, provided,
      that
      partial conversions of Base Rate Loans shall be in the aggregate principal
      amount of $1,000,000 and integral multiples of $100,000 in excess of that amount
      and the aggregate principal amount of the resulting Eurodollar Rate Loans
      outstanding in respect of any one (1) Interest Period shall be at least
      $2,000,000 and integral multiples of $1,000,000 in excess of that amount; or
      (b)
      upon the
      expiration of any Interest Period applicable to a Eurodollar Rate Loan, to
      continue all or any portion of such Loan as a Eurodollar Rate Loan; provided,
      (1)
      a
      Eurodollar Rate Loan may only be converted into a Base Rate Loan on the
      expiration date of an Interest Period applicable thereto and (2)
      the
      aggregate principal amount of the resulting Eurodollar Rate Loans outstanding
      in
      respect of any one Interest Period shall be at least $2,000,000 and integral
      multiples of $1,000,000 in excess of that amount. Company shall deliver a
      Conversion/Continuation Notice to Administrative Agent no later than 10:00
      a.m.
      (New York City time) at least one (1) Business Day in advance of the proposed
      conversion date (in the case of a conversion to a Base Rate Loan) and at least
      three (3) Business Days in advance of the proposed conversion/continuation
      date
      (in the case of a conversion to, or a continuation of, a Eurodollar Rate Loan).
      Except as otherwise provided herein, a Conversion/Continuation Notice for
      conversion to, or continuation of, a Eurodollar Rate Loan (or telephonic notice
      in lieu thereof) shall be irrevocable on and after the related Interest Rate
      Determination Date, and Company shall be bound to effect a conversion or
      continuation in accordance therewith. After the occurrence of and during the
      continuation of an Event of Default, unless the Requisite Lenders otherwise
      consent, (i)
      Company
      may not elect to have a Loan be made or maintained as, or converted to, a
      Eurodollar Rate Loan after the expiration of any Interest Period then in effect
      for that Loan; and (ii)
      any
      Funding Notice or Conversion/Continuation Notice given by Company with respect
      to a requested borrowing or conversion/continuation that has not yet occurred
      shall be deemed to be rescinded by Company.

     

    2.9  Post-Maturity
      Interest

     

    Any
      principal payments on the Loans not paid when due and, to the extent permitted
      by applicable law, any interest payments on the Loans or any fees or other
      amounts owed hereunder not paid when due, in each case whether at stated
      maturity, by notice of prepayment, by acceleration or otherwise, shall
      thereafter bear interest (including post-petition interest in any proceeding
      under the Bankruptcy Code or other applicable bankruptcy laws) payable on demand
      at a rate which is 2% per annum in excess of the interest rate otherwise payable
      hereunder with respect to the applicable Loans (or, in the case of any such
      fees
      and other amounts, at a rate which is 2% per annum in excess of the interest
      rate otherwise payable hereunder for Base Rate Loans that are Revolving Loans);
      provided,
      in the
      case of Eurodollar Rate Loans, upon the expiration of the Interest Period in
      effect at the time any such increase in interest rate is effective such
      Eurodollar Rate Loans shall thereupon become Base Rate Loans and shall
      thereafter bear interest payable upon demand at a rate which is 2% per annum
      in
      excess of the interest rate otherwise payable hereunder for Base Rate Loans
      of
      the Class in question. Payment or acceptance of the increased rates of interest
      provided for in this Section 2.9
      is not a
      permitted alternative to timely payment and shall not constitute a waiver of
      any
      Event of Default or otherwise prejudice or limit any rights or remedies of
      Administrative Agent or any Lender.

     

    2.10  Fees

     

    (a)   Company
      agrees to pay to
      Administrative Agent, for distribution to each Lender having Revolving Credit
      Exposure in proportion to that Lender’s Pro Rata Share (determined with respect
      to the Revolving Loan Commitments), commitment fees for the Revolving Loan
      Commitment Period equal to the product of (i)
      the
      average of the daily difference between (1)
      the
      Revolving Loan Commitments, minus (2)
      the sum
      of (A)
      the
      aggregate principal amount of outstanding Revolving Loans (but not any
      outstanding Swing Line Loans) plus (B)
      the
      Letter of Credit Usage, multiplied by
      the
(ii)
      Applicable Commitment Fee Percentage. All such commitment fees shall be
      calculated on the basis of a 360-day year and the actual number of days elapsed
      and shall be payable quarterly in arrears on March 30, June 30, September 30
      and
      December 30 of each year, commencing on the first such date to occur after
      the
      Effective Date, and on the Revolving Loan Commitment Termination
      Date.

     

    
      
         

      

      
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    (b)  Company
      agrees to pay (i)
      a
      fronting fee, payable directly to Issuing Bank for its own account, equal to
      0.25% per annum of the aggregate daily amount available to be drawn under all
      Letters of Credit issued by it, and (ii)
      a letter
      of credit fee, payable to Administrative Agent for the account of Lenders having
      Revolving Credit Exposure, equal to the product of (1)
      the
      Applicable Margin for Revolving Loans that are Eurodollar Rate Loans,
multiplied by (2)
      the
      daily amount available to be drawn under all such Letters of Credit, each such
      fee to be payable in arrears on and to (but not including) the last Business
      Day
      of each of January, April, July and October of each year and computed on the
      basis of a 360-day year for the actual number of days elapsed. Without
      duplication of the foregoing fees, Company agrees to pay documentary and
      processing charges payable directly to Issuing Bank for its own account in
      accordance with Issuing Bank’s standard schedule for such charges in effect at
      the time of such issuance, amendment, transfer or payment, as the case may
      be.
      For purposes of calculating any fees payable under this Section, the daily
      amount available to be drawn under any Letter of Credit shall be determined
      as
      of the close of business on any date of determination. Promptly upon receipt
      by
      Administrative Agent of any amount described in clause (ii)
      above,
      Administrative Agent shall distribute to each Lender having Revolving Credit
      Exposure its Pro Rata Share (determined with respect to the Revolving Loan
      Commitments) of such amount.

     

    (c)  Company
      agrees to pay to the Agents such other fees in the amounts and at the times
      separately agreed upon between Company and the Agents.

     

    2.11  Scheduled
      Payments

     

        Company
      shall
      make principal payments on the Tranche D Term Loans in installments (each an
      “Installment”)
      on the
      dates (each an “Installment
      Date”)
      and in
      the amounts set forth below:

     

    
      	
               

              DATE

               

            	
               

              AMOUNT

               

            
	
              June
                30, 2006

            	
              $1,230,000.00

            
	
              September
                30, 2006

            	
              $1,230,000.00

            
	
              December
                31, 2006

            	
              $1,230,000.00

            
	
              March
                31, 2007

            	
              $1,230,000.00

            
	
              June
                30, 2007

            	
              $1,230,000.00

            
	
              September
                30, 2007

            	
              $1,230,000.00

            
	
              December
                31, 2007

            	
              $1,230,000.00

            
	
              March
                31, 2008

            	
              $1,230,000.00

            
	
              June
                30, 2008

            	
              $1,230,000.00

            
	
              September
                30, 2008

            	
              $1,230,000.00

            
	
              December
                31, 2008

            	
              $1,230,000.00

            
	
              March
                31, 2009

            	
              $1,230,000.00

            
	
              June
                30, 2009

            	
              $1,230,000.00

            
	
              September
                30, 2009

            	
              $1,230,000.00

            
	
              December
                31, 2009

            	
              $1,230,000.00

            
	
              March
                31, 2010

            	
              $1,230,000.00

            
	
              June
                30, 2010

            	
              $1,230,000.00

            
	
              September
                30, 2010

            	
              $1,230,000.00

            
	
              December
                31, 2010

            	
              $1,230,000.00

            
	
              March
                31, 2011

            	
              $117,157,500.00

            
	
              June
                30, 2011

            	
              $117,157,500.00

            
	
              September
                30, 2011

            	
              $117,157,500.00

            
	
              December
                19, 2011

            	
              $117,157,500.00

            


    

    


    ;
      provided,
      in the
      event any New Term Loans are made, such New Term Loans shall be repaid on each
      Installment Date occurring on or after the applicable Increased Amount Date
      in
      an amount equal to (i)
      the
      aggregate principal amount of New Term Loans of the applicable Series of New
      Term Loans, times (ii)
      the
      ratio (expressed as a percentage) of (y)
      the
      original Installment amount of the Tranche D Term Loans to be repaid on such
      Installment Date and (z)
      the
      original aggregate principal amount of the Tranche D Term Loans.

     

    Notwithstanding
      the foregoing, (i)
      such
      scheduled installments shall be reduced in connection with any voluntary or
      mandatory prepayments of the Term Loans in accordance with Sections
      2.12,
      2.13
      and
2.14;
      (ii)
      Tranche
      D Term Loans and all other amounts owed hereunder with respect thereto shall
      be
      paid in full no later than the Tranche D Term Loan Maturity Date, and the final
      installment payable by Company in respect thereof on such date shall be in
      an
      amount sufficient to repay all amounts owing by Company hereunder with respect
      to the Tranche D Term Loans; and (iii)
      New Term
      Loans and all other amounts owed hereunder with respect thereto shall be paid
      in
      full no later than the New Term Loan Maturity Date, and the final installment
      payable by Company in respect thereof on such date shall be in an amount
      sufficient to repay all amounts owing by Company hereunder with respect to
      the
      New Term Loans.

     

    
      
         

      

      
        50

        
          

        

      

      
         

      

    

    2.12  Voluntary
      Prepayments/Commitment Reductions

     

    (a)   Company
      may, upon written
      or telephonic notice to Administrative Agent on or prior to 12:00 noon (New
      York
      City time) on the date of prepayment, which notice, if telephonic, shall be
      promptly confirmed in writing, at any time and from time to time prepay any
      Swing Line Loan on any Business Day in whole or in part in an aggregate minimum
      amount of $250,000 and integral multiples of $100,000 in excess of that amount.
      Company may, upon not less than one (1) Business Day’s prior written or
      telephonic notice, in the case of Base Rate Loans, and three (3) Business Days’
prior written or telephonic notice, in the case of Eurodollar Rate Loans, in
      each case given to Administrative Agent by 12:00 noon (New York City time)
      on
      the date required and, if given by telephone, promptly confirmed in writing
      to
      Administrative Agent (which original written or telephonic notice Administrative
      Agent will promptly transmit by telefacsimile or telephone to each Lender),
      at
      any time and from time to time prepay any Term Loans or Revolving Loans on
      any
      Business Day in whole or in part in an aggregate minimum amount of $500,000
      and
      integral multiples of $100,000 in excess of that amount in the case of Term
      Loans and $100,000 and integral multiples of $500,000 in excess of that amount
      in the case of Revolving Loans; provided,
      however,
      that a
      Eurodollar Rate Loan may only be prepaid on the expiration of the Interest
      Period applicable thereto unless Company pays Lenders any amount required
      pursuant to Section 2.18(c)
      on the
      date of such prepayment. Notice of prepayment having been given as aforesaid,
      the principal amount of the Loans specified in such notice shall become due
      and
      payable on the prepayment date specified therein; provided
      that
      Company may rescind or postpone any such notice of prepayment if such prepayment
      would have resulted from a refinancing of all of the Loans and such refinancing
      shall not be consummated or otherwise shall be delayed. 

     

    
      
         

      

      
        51

        
          

        

      

      
         

      

    

    (b)  Company
      may, upon not less than three (3) Business Days’ prior written or telephonic
      notice confirmed in writing to Administrative Agent (which original written
      or
      telephonic notice Administrative Agent will promptly transmit by telefacsimile
      or telephone to each Lender), at any time and from time to time terminate in
      whole or permanently reduce in part, without premium or penalty, the Revolving
      Loan Commitments in an amount up to the amount by which the Revolving Loan
      Commitments exceed the Total Utilization of Revolving Loan Commitments at the
      time of such proposed termination or reduction; provided,
      any
      such partial reduction of the Revolving Loan Commitments shall be in an
      aggregate minimum amount of $2,000,000 and integral multiples of $1,000,000
      in
      excess of that amount. Company’s notice to Administrative Agent shall designate
      the date (which shall be a Business Day) of such termination or reduction and
      the amount of any partial reduction, and such termination or reduction of the
      Revolving Loan Commitments shall be effective on the date specified in Company’s
      notice and shall reduce the Revolving Loan Commitment of each Lender having
      Revolving Credit Exposure proportionately to its Pro Rata Share (determined
      with
      respect to Revolving Loan Commitments); provided
      that
      Company may rescind or postpone any such notice of termination of the Revolving
      Loan Commitments if such termination would have resulted from a refinancing
      of
      all of the Loans and such refinancing shall not be consummated or otherwise
      shall be delayed. 

     

    (c)  Notwithstanding
      anything to the contrary contained in this Section 2.12
      or any
      other provision of this Agreement, so long as (i)
      there is
      no Default, (ii)
      there is
      no Event of Default and (iii)
      no
      Default or Event of Default would result therefrom, Company may repurchase
      outstanding Term Loans on the following bases:

     

    (i)  Company
      may repurchase on a non-pro rata basis all or any portion of the Term Loans
      of
      one or more Lenders pursuant to an Assignment Agreement, between Company and
      such Lender or Lenders in an aggregate principal amount not to exceed 30% of
      the
      initial aggregate principal amount of Term Loans with respect to all such
      repurchases pursuant to this clause (i);
      provided
      that,
      with respect to such repurchases, Company shall simultaneously provide a copy
      of
      such Assignment Agreement and any other agreements between Company and such
      Lender with respect to such repurchase to Administrative Agent and
      GSCP;

     

    
      
         

      

      
        52

        
          

        

      

      
         

      

    

    (ii)  In
      addition, Company may make one or more offers (each, an “Offer”)
      to
      repurchase all or any portion of the Term Loans (such Term Loans, the
“Offer
      Loans”)
      of
      Lenders, provided,
      (A)
      Company
      delivers a notice of such Offer to Administrative Agent (to be distributed
      to
      the Lenders) no later than 12:00 noon (New
      York
      City time) at least five (5) Business Days in advance of a proposed consummation
      date of such Offer indicating (1)
      the last
      date on which such Offer may be accepted, (2)
      the
      maximum dollar amount of the Offer, (3)
      the
      repurchase price per dollar of principal amount of such Offer Loans at which
      Company is willing to repurchase the Offer Loans and (4)
      the
      instructions, consistent with this Section 2.12(c)
      with
      respect to the Offer (which shall be reasonably acceptable to Company,
      Administrative Agent and GSCP), that a Lender must follow in order to have
      its
      Offer Loans repurchased; (B)
      the
      maximum dollar amount of the Offer shall be no less than an aggregate
      $1,000,000; (C)
      Company
      shall hold the Offer open for a minimum period of two (2) Business Days;
(D)
      a Lender
      who elects to participate in the Offer may choose to tender all or part of
      such
      Lender’s Offer Loans; and (E)
      the
      Offer shall be made to Lenders holding the Offer Loans on a pro rata basis
      in
      accordance with their Pro Rata Shares; provided,
      further
      that, if
      any Lender elects not to participate in the Offer, either in whole or in part,
      the amount of such Lender’s Offer Loans not being tendered shall be excluded in
      calculating the pro rata amount applicable to the balance of such Offer
      Loans; 

     

    (iii)  With
      respect to all repurchases made by Company pursuant to this Section 2.12(c),
      (A)
      Company
      shall pay all accrued and unpaid interest, if any, on the repurchased Term
      Loans
      to the date of repurchase of such Term Loans (B) Company
      shall have provided to all Lenders all information that, together with any
      previously provided information, would satisfy the requirements of Rule 10b-5
      of
      the Exchange Act with respect to an offer by Company to repurchase securities
      registered under the Securities Act (whether or not such securities are
      outstanding) as if such offer was being made as of the date of such repurchase
      of Term Loans from a Lender and (C)
      such
      repurchases shall not be deemed to be voluntary prepayments pursuant to this
      Section 2.12,
      Section 2.13
      or
2.16
      hereunder except that the amount of the Loans so repurchased shall be applied
      on
      a pro rata basis to reduce the scheduled remaining Installments of principal
      on
      such Term Loan; 

     

    (iv)  Following
      repurchase by Company pursuant to this Section 2.12(c),
      the
      Term Loans so repurchased shall be deemed cancelled for all purposes and no
      longer outstanding (and may not be resold by Company), for all purposes of
      this
      Agreement and all other Credit Documents, including, but not limited to
(A)
      the
      making of, or the application of, any payments to the Lenders under this
      Agreement or any other Credit Document, (B)
      the
      making of any request, demand, authorization, direction, notice, consent or
      waiver under this Agreement or any other Credit Document or (C)
      the
      determination of Requisite Lenders, or for any similar or related purpose,
      under
      this Agreement or any other Credit Document. Any payment made by Company in
      connection with a repurchase permitted by this Section 2.12(c)
      shall
      not be subject to the provisions of either Section 2.16
      or
Section 2.17.
      Failure
      by Company to make any payment to a Lender required by an agreement permitted
      by
      this Section 2.12(c)
      shall
      not constitute an Event of Default under Section 8.1(a);
      and

     

    
      
         

      

      
        53

        
          

        

      

      
         

      

    

    (v)  Notwithstanding
      any of the provisions set forth in this Agreement to the contrary, Company,
      the
      Lenders and Agents hereby agree that nothing in this Agreement shall be
      understood to mean or suggest that the Term Loans constitute “securities” for
      purposes of either the Securities Act or the Exchange Act.

     

    2.13  Mandatory
      Prepayments/Commitment Reductions

     

    (a)   No
      later than the first
      Business Day following the date of receipt by Holdings, Company or any of its
      Subsidiaries of any Net Asset Sale Proceeds from Asset Sales made in accordance
      with Sections 6.7(o),
      6.7(p),
      and
Section 6.9,
      or of
      any Net Insurance/Condemnation Proceeds, Company shall prepay the Loans and/or
      the Revolving Loan Commitments shall be permanently reduced in an aggregate
      amount equal to such Net Asset Sale Proceeds or Net Insurance/Condemnation
      Proceeds, as the case may be; provided,
      so long
      as Event of Default shall have occurred and be continuing, Company may deliver
      to Administrative Agent a certificate of an Authorized Officer of Company
      setting forth (1)
      that
      portion of such Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds
      (such portion being the “Proposed
      Reinvestment Proceeds”)
      that
      Company or such Subsidiary intends to reinvest within 365 days of the date
      of
      receipt, in non-current assets useful in the business of Company and its
      Subsidiaries, which may include, in the case of any Proposed Reinvestment
      Proceeds which related to Net Insurance/Condemnation Proceeds, the repair,
      restoration or replacement of the applicable assets of Company or its
      Subsidiaries (such assets being “Eligible
      Assets”)
      and
(2)
      the
      proposed use of such Proposed Reinvestment Proceeds and such other information
      with respect to such reinvestment as Administrative Agent may reasonably
      request. In the event Collateral Agent shall receive any Net
      Insurance/Condemnation Proceeds in its capacity as loss payee pursuant to
Section 5.5,
      Company
      hereby authorizes Collateral Agent to apply an amount equal to all such amounts
      in accordance with this Section 2.13(a);
      provided,
      if
      Company shall elect to exercise its option to reinvest any such proceeds
      pursuant to the first sentence of this Section 2.13(a),
      Company
      shall give notice to Administrative Agent of such election and Administrative
      Agent shall pay over to Company such proceeds and Company shall reinvest such
      proceeds in accordance with the terms of such sentence.

     

    (b)  On
      the
      date of receipt by Parent, Holdings or Company of the Cash proceeds from the
      issuance of any equity Securities in a public offering or in a private placement
      underwritten, placed or initially purchased by an investment bank (it being
      understood that Sponsor is not an investment bank) of Parent, Holdings, Company
      or any of its Subsidiaries, Company shall prepay the Loans and/or the Revolving
      Loan Commitments shall be permanently reduced in an aggregate amount equal
      to
      50% of such proceeds, net of investment banking fees, underwriting discounts
      and
      commissions and other reasonable costs and expenses associated therewith,
      including reasonable legal fees and expenses; provided,
      during
      any period in which the Leverage Ratio as of the last day of the immediately
      preceding Fiscal Quarter (determined for any such period by reference to the
      most recent Compliance Certificate delivered pursuant to Section 5.1(d)
      calculating the Leverage Ratio) (i)
      shall be
      4.00:1.00 or less, Company shall be required to make the prepayment and/or
      reduction required hereby in an amount equal to 25% of such net proceeds, and
      (ii)
      shall
      be
      2.50:1.00 or less, Company shall not be required to make any prepayment and/or
      reduction hereby; and provided further
      that no
      such prepayment or commitment reduction shall be required with respect to an
      amount equal to such proceeds that are received (w)
      in a
      private offering or placement to the extent that such proceeds do not exceed
      $25,000,000 in the aggregate and are utilized to finance Permitted Acquisitions,
      (x)
      pursuant
      to any employee stock or stock option plan, (y)
      in
      connection with sales or issuances of equity Securities to (A)
      the
      Equity Investors, their Affiliates, related funds and limited partners and
      (B)
      other
      Persons making additional equity investments together with the Equity Investors
      after the Closing Date, and (z)
      in
      connection with any Permitted Cure Securities. Notwithstanding the foregoing,
      in
      the event that Parent receives net proceeds from the Parent IPO of at least
      $125,000,000, then Company shall not be required to prepay the Loans hereunder
      to the extent such net proceeds are used to repay the Senior Subordinated Notes
      and/or the Holdco Notes and/or, from and after the Holdings Merger Effective
      Date, the Parent Notes.

     

    
      
         

      

      
        54

        
          

        

      

      
         

      

    

    (c)  On
      the
      first Business Day following the date of receipt by Holdings, Company or its
      Subsidiaries of the Cash proceeds from the issuance of any debt Securities
      (other than the proceeds of Indebtedness permitted under Section 6.1
      (unless
      indicated otherwise in Section 6.1))
      of
      Holdings, Company or its Subsidiaries, Company shall prepay the Loans and/or
      the
      Revolving Loan Commitments shall be permanently reduced in an aggregate amount
      equal to equal to 100% of such proceeds, net, in the case of any such issuance,
      of investment banking fees, underwriting discounts and commissions and other
      reasonable costs and expenses associated therewith, including reasonable legal
      fees and expenses.

     

    (d)  In
      the
      event that there shall be Consolidated Excess Cash Flow for any Fiscal Year
      (commencing with Fiscal Year ended 2006), Company shall, no later than one
      hundred-five (105) days after the end of such Fiscal Year, prepay the Loans
      and/or the Revolving Loan Commitments shall be permanently reduced in an
      aggregate amount equal to 50% of such Consolidated Excess Cash Flow,
minus
      a
      dollar-for-dollar reduction in an amount equal to the amount of prepayments
      and
      repurchases of Tranche D Term Loan made during such Fiscal Year or, without
      duplication, the Fiscal Year in which such payment of Consolidated Excess Cash
      Flow occurs, pursuant to Section
      2.12(a)
      and/or
2.12(c);
      provided,
      during
      any period in which the Leverage Ratio as of the last day of the last Fiscal
      Quarter of such Fiscal Year (determined for any such period by reference to
      the
      most recent Compliance Certificate delivered pursuant to Section 5.1(d)
      calculating the Leverage Ratio) (i)
      shall be
      4.00:1.00 or less, Company shall be required to make the prepayment and/or
      reduction required hereby in an amount equal to 25% of such Consolidated Excess
      Cash Flow, and (ii)
      shall be
      2.50:1.00 or less, Company shall not be required to make any prepayment and/or
      reduction hereby.

     

    (e)  Company
      shall from time to time prepay first,
      the
      Swing Line Loans, and second,
      the
      Revolving Loans to the extent necessary so that the Total Utilization of
      Revolving Loan Commitments shall not at any time exceed the Revolving Loan
      Commitments then in effect.

     

    (f)  Concurrently
      with any prepayment of the Loans and/or reduction of the Commitments pursuant
      to
Sections 2.13(a)
      through
2.13(e),
      Company
      shall deliver to Administrative Agent a certificate by its Authorized Officer
      demonstrating the calculation of the amount of the applicable net proceeds
      or
      Consolidated Excess Cash Flow, as the case may be, that gave rise to such
      prepayment and/or reduction.

     

    
      
         

      

      
        55

        
          

        

      

      
         

      

    

    2.14  Application
      of Prepayments and Reductions of Commitments

     

    (a)   Any
      voluntary prepayments
      made pursuant to Section 2.12
      (other
      than clause (c) thereof) shall be applied as specified by Company in the
      applicable notice of prepayment; provided,
      in the
      event Company fails to specify the Loans to which any such prepayment shall
      be
      applied, such prepayment shall be applied first,
      to
      repay outstanding Swing Line Loans to the full extent thereof, second
      to repay
      outstanding Revolving Loans to the full extent thereof, third
      to
      prepay scheduled Installments of the Term Loans for the immediately succeeding
      twelve-month period, and fourth,
      to
      prepay the Term Loans on a pro rata basis (in accordance with the respective
      outstanding principal amounts thereof) and shall be further applied on a pro
      rata basis (in accordance with the respective outstanding principal amounts
      thereof) to each scheduled installment of principal of the Term Loans, that
      is
      unpaid at the time of such prepayment. 

     

    (b)  Any
      amount (the “Applied
      Amount”)
      required to be paid pursuant to Section 2.13
      shall be
      applied first,
      to
      prepay scheduled Installments of the Term Loans for the immediately succeeding
      twelve-month period, second,
      to
      prepay the Term Loans on a pro rata basis (in accordance with the respective
      outstanding principal amounts thereof) and shall be further applied on a pro
      rata basis (in accordance with the respective outstanding principal amounts
      thereof) to each scheduled installment of principal of the Term Loans, that
      is
      unpaid at the time of such prepayment, third,
      to the
      extent of any remaining portion of the Applied Amount, to prepay the Swing
      Line
      Loans to the full extent thereof and to permanently reduce the Revolving Loan
      Commitments by the amount of such prepayment, fourth,
      to the
      extent of any remaining portion of the Applied Amount, to prepay the Revolving
      Loans to the full extent thereof and to further permanently reduce the Revolving
      Loan Commitments by the amount of such prepayment, fifth,
      to the
      extent of any remaining portion of the Applied Amount, to further permanently
      reduce the Revolving Loan Commitments to the full extent thereof, and
sixth,
      to
      cash-collateralize any Letters of Credit that are outstanding.

     

    (c)  Considering
      each Class of Loans being prepaid separately, any prepayment thereof shall
      be
      applied first to Base Rate Loans to the full extent thereof before application
      to Eurodollar Rate Loans, in each case in a manner which minimizes the amount
      of
      any payments required to be made by Company pursuant to Section 2.18(c);
      provided,
      so long
      as no Event of Default shall have occurred and then be continuing, Company
      may
      elect that the remainder of such prepayments (after application to all Base
      Rate
      Loans) be deposited in a cash collateral account and applied thereafter to
      prepay any Eurodollar Rate Loans at the earliest expiration of the Interest
      Periods applicable thereto. Company hereby grants to Administrative Agent,
      for
      the benefit of such Lenders, a security interest in all amounts in which Company
      has any right, title or interest which are from time to time on deposit in
      such
      cash collateral account and expressly waives all rights (which rights Company
      hereby acknowledges and agrees are vested exclusively in the Administrative
      Agent) to exercise dominion or control over any such amounts.

     

    
      
         

      

      
        56

        
          

        

      

      
         

      

    

    2.15  Collateral
      Proceeds; Guaranty Payments

     

    (a)   Except
      as otherwise
      provided herein, all proceeds received by Collateral Agent in respect of any
      sale of, collection from, or other realization upon all or any part of the
      Collateral after the occurrence and during the continuance of an Event of
      Default, may, in the discretion of Collateral Agent, be held by Collateral
      Agent
      as Collateral for, and/or (then or at any time thereafter) applied in full
      or in
      part by Collateral Agent against, the “Secured
      Obligations”
or
      “Obligations”
(each
      as defined in the applicable Collateral Documents) in the following order of
      priority: first,
      to the
      payment of all costs and expenses of such sale, collection or other realization,
      including reasonable compensation to Collateral Agent and its agents and
      counsel, and all other expenses, liabilities and advances made or incurred
      by
      Collateral Agent in connection therewith, and all amounts for which Collateral
      Agent is entitled to indemnification under such Collateral Documents and
      hereunder and all advances made by Collateral Agent thereunder for the account
      of the applicable Credit Party, and to the payment of all costs and expenses
      paid or incurred by Collateral Agent in connection with the exercise of any
      right or remedy under such Collateral Document or hereunder, all in accordance
      with the terms hereof; second,
      to the
      extent of any excess such proceeds, to the payment of all other such Secured
      Obligations for the ratable benefit of the holders thereof; and third,
      to the
      extent of any excess such proceeds, to the payment to or upon the order of
      such
      Credit Party or to whosoever may be lawfully entitled to receive the same or
      as
      a court of competent jurisdiction may direct.

     

    (b)  All
      payments received by Administrative Agent under the Guaranty shall be applied
      promptly from time to time by Administrative Agent in the following order of
      priority: first,
      to the
      payment of the costs and expenses of any collection or other realization under
      the Guaranty, including reasonable compensation to Collateral Agent and its
      agents and counsel, and all expenses, liabilities and advances made or incurred
      by Collateral Agent in connection therewith, all in accordance with the terms
      of
      the Guaranty and this Agreement; second,
      to the
      extent of any excess such payments, to the payment of all other Obligations
      for
      the ratable benefit of the holders thereof; and third,
      to the
      extent of any excess such payments, to the payment to the applicable Guarantor
      or to whosoever may be lawfully entitled to receive the same or as a court
      of
      competent jurisdiction may direct.

     

    2.16  General
      Provisions Regarding Payments

     

    All
      payments by Company of principal, interest, fees and other Obligations shall
      be
      made in Dollars in same day funds, without defense, set-off or counterclaim,
      free of any restriction or condition, and delivered to Administrative Agent
      not
      later than 12:00 noon (New York City time) on the date due at the Funding and
      Payment Office for the account of Lenders; funds received by Administrative
      Agent after that time on such due date shall be deemed to have been paid by
      Company on the next succeeding Business Day. All payments in respect of the
      principal amount of any Loan (other than voluntary prepayments of Revolving
      Loans and Swing Line Loans) shall include payment of accrued interest on the
      principal amount being repaid or prepaid, and all such payments (and, in any
      event, any payments in respect of any Loan on a date when interest is due and
      payable with respect to such Loan) shall be applied to the payment of interest
      before application to principal. Administrative Agent shall promptly distribute
      to each Lender, at its primary address set forth on its signature page hereto
      or
      at such other address as such Lender may request, its applicable Pro Rata Share
      of all payments and prepayments of principal and interest due hereunder,
      together with all other amounts due thereto, including, without limitation,
      all
      fees payable thereto, received by Administrative Agent. Notwithstanding the
      foregoing provisions hereof, if any Conversion/Continuation Notice is withdrawn
      as to any Affected Lender or if any Affected Lender makes Base Rate Loans in
      lieu of its applicable Pro Rata Share of any Eurodollar Rate Loans,
      Administrative Agent shall give effect thereto in apportioning payments received
      thereafter. Notwithstanding anything to the contrary herein, payments of amounts
      deposited in the collateral account pursuant to Section 2.14(c)
      shall be
      deemed to have been paid by Company on the later of (a)
      the date
      such amounts are so deposited, and (b)
      if
      Company elects to apply such amounts in accordance with Section 2.14(c),
      the
      applicable date or dates such amounts are applied to prepay Eurodollar Rate
      Loans. 

     

    
      
         

      

      
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    2.17  Ratable
      Sharing

     

    Lenders
      hereby agree among themselves that if any of them shall, whether by voluntary
      payment (other than a voluntary prepayment of Loans made and applied in
      accordance with the terms hereof), by realization upon security, through the
      exercise of any right of set-off or banker’s lien, by counterclaim or cross
      action or by the enforcement of any right under the Credit Documents or
      otherwise, or as adequate protection of a deposit treated as cash collateral
      under the Bankruptcy Code, receive payment or reduction of a proportion of
      the
      aggregate amount of principal, interest, amounts payable in respect of Letters
      of Credit, fees and other amounts then due and owing to such Lender hereunder
      or
      under the other Credit Documents (collectively, the “Aggregate
      Amounts Due”
to
      such
      Lender) which is greater than the proportion received by any other Lender in
      respect of the Aggregate Amounts Due to such other Lender, then the Lender
      receiving such proportionately greater payment shall (i)
      notify
      Administrative Agent and each other Lender of the receipt of such payment and
      (ii)
      apply a
      portion of such payment to purchase participations (which it shall be deemed
      to
      have purchased from each seller of a participation simultaneously upon the
      receipt by such seller of its portion of such payment) in the Aggregate Amounts
      Due to the other Lenders so that all such recoveries of Aggregate Amounts Due
      shall be shared by all Lenders in proportion to the Aggregate Amounts Due to
      them; provided,
      if all
      or part of such proportionately greater payment received by such purchasing
      Lender is thereafter recovered from such Lender upon the bankruptcy or
      reorganization of Company or otherwise, those purchases shall be rescinded
      and
      the purchase prices paid for such participations shall be returned to such
      purchasing Lender ratably to the extent of such recovery, but without interest.
      Company expressly consents to the foregoing arrangement and agrees that any
      holder of a participation so purchased may exercise any and all rights of
      banker’s lien, set-off or counterclaim with respect to any and all monies owing
      by Company to that holder with respect thereto as fully as if that holder were
      owed the amount of the participation held by that holder directly by
      Company.

     

    2.18  Making
      or Maintaining Eurodollar Rate Loans

     

    (a)   In
      the event that
      Administrative Agent shall have reasonably determined (which determination
      shall
      be final and conclusive and binding upon all parties hereto), on any Interest
      Rate Determination Date with respect to any Eurodollar Rate Loans, that by
      reason of circumstances affecting the London interbank market adequate and
      fair
      means do not exist for ascertaining the interest rate applicable to such Loans
      on the basis provided for in the definition of Adjusted Eurodollar Rate,
      Administrative Agent shall on such date give notice (by telefacsimile or by
      telephone confirmed in writing) to Company and each Lender of such
      determination, whereupon (i)
      no Loans
      may be made as, or converted to, Eurodollar Rate Loans until such time as
      Administrative Agent notifies Company and Lenders that the circumstances giving
      rise to such notice no longer exist, which notice shall be given as soon as
      reasonably practicable and (ii)
      any
      Funding Notice or Conversion/Continuation Notice given by Company with respect
      to the Loans in respect of which such determination was made shall be deemed
      to
      be rescinded by Company without the necessity of paying any amount under
Section 2.18(c),
      and any
      Funding Notice previously delivered by Company which requested Eurodollar Rate
      Loans may be revoked by Company or, failing that, shall be deemed to be
      converted into a request(s) for borrowing of Base Rate Loans. 

     

    
      
         

      

      
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    (b)  In
      the
      event that on any date any Lender shall have reasonably determined (which
      determination shall be final and conclusive and binding upon all parties hereto
      but shall be made only after consultation with Company and Administrative Agent)
      that the making, maintaining or continuation of its Eurodollar Rate Loans
(i)
      has
      become unlawful as a result of compliance by such Lender in good faith with
      any
      law, treaty, governmental rule, regulation, guideline or order (or would
      conflict with any such treaty, governmental rule, regulation, guideline or
      order
      not having the force of law even though the failure to comply therewith would
      not be unlawful), or (ii)
      has
      become impracticable, or would cause such Lender material hardship, as a result
      of contingencies occurring after the date hereof which materially and adversely
      affect the London interbank market or the position of such Lender in that
      market, then, and in any such event, such Lender shall be an “Affected
      Lender”
and
      it
      shall on that day give notice (by telefacsimile or by telephone confirmed in
      writing) to Company and Administrative Agent of such determination (which notice
      Administrative Agent shall promptly transmit to each other Lender). Thereafter
      (1)
      the
      obligation of the Affected Lender to make Loans as, or to convert Loans to,
      Eurodollar Rate Loans shall be suspended until such notice shall be withdrawn
      by
      the Affected Lender, (2)
      to the
      extent such determination by the Affected Lender relates to a Eurodollar Rate
      Loan then being requested by Company pursuant to a Funding Notice or a
      Conversion/Continuation Notice, the Affected Lender shall make such Loan as
      (or
      convert such Loan to, as the case may be) a Base Rate Loan, (3)
      the
      Affected Lender’s obligation to maintain its outstanding Eurodollar Rate Loans
      (the “Affected
      Loans”)
      shall
      be terminated at the earlier to occur of the expiration of the Interest Period
      then in effect with respect to the Affected Loans or when required by law,
      and
(4)
      the
      Affected Loans shall automatically convert into Base Rate Loans on the date
      of
      such termination. Notwithstanding the foregoing, to the extent a determination
      by an Affected Lender as described above relates to a Eurodollar Rate Loan
      then
      being requested by Company pursuant to a Funding Notice or a
      Conversion/Continuation Notice, Company shall have the option, subject to the
      provisions of Section 2.18(c),
      to
      rescind such Funding Notice or Conversion/Continuation Notice as to all Lenders
      by giving notice (by telefacsimile or by telephone confirmed in writing) to
      Administrative Agent of such rescission on the date on which the Affected Lender
      gives notice of its determination as described above (which notice of rescission
      Administrative Agent shall promptly transmit to each other Lender). Except
      as
      provided in the immediately preceding sentence, nothing in this Section 2.18(b)
      shall
      affect the obligation of any Lender other than an Affected Lender to make or
      maintain Loans as, or to convert Loans to, Eurodollar Rate Loans in accordance
      with the terms hereof.

     

    (c)  Company
      shall compensate each Lender, upon written request by such Lender (which request
      shall set forth the basis for requesting such amounts), for all reasonable
      losses, expenses and liabilities (including any interest paid by such Lender
      to
      lenders of funds borrowed by it to make or carry its Eurodollar Rate Loans
      and
      any loss, expense or liability sustained by such Lender in connection with
      the
      liquidation or re-employment of such funds but excluding (a)
      any loss
      solely attributable to the failure to receive the Applicable Margin on a
      Eurodollar Rate Loan for any period after (y)
      the date
      specified for such Eurodollar Rate Loan in the case of clause (i) below and
      (z)
      the date
      such Eurodollar Rate Loans are prepaid or converted in the case of clause (ii)
      below) which such Lender may sustain: (i)
      if for
      any reason (other than a default by such Lender) a borrowing of any Eurodollar
      Rate Loan does not occur on a date specified therefor in a Funding Notice or
      a
      telephonic request for borrowing, or a conversion to or continuation of any
      Eurodollar Rate Loan does not occur on a date specified therefor in a
      Conversion/Continuation Notice or a telephonic request for conversion or
      continuation; (ii)
      if any
      prepayment or other principal payment or any conversion of any of its Eurodollar
      Rate Loans occurs on a date prior to the last day of an Interest Period
      applicable to that Loan; or (iii)
      if any
      prepayment of any of its Eurodollar Rate Loans is not made on any date specified
      in a notice of prepayment given by Company and (b)
      any
      loss, expense or liability with respect to Taxes (and any liabilities relating
      thereto), the indemnity for which shall be governed solely and exclusively
      by
Section 2.20.

     

    
      
         

      

      
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    (d)  Any
      Lender may make, carry or transfer Eurodollar Rate Loans at, to, or for the
      account of any of its branch offices or the office of an Affiliate of such
      Lender. In addition, in the case of each Lender that makes, carries or transfers
      any Eurodollar Rate Loan at, to, or for the account of an office of an Affiliate
      of such Lender pursuant to this Section 2.18(d),
      such
      Lender: (i) shall keep a register, meeting the requirements of Temporary
      Treasury Regulation Section 5f.103-1(c), relating to each such Affiliate of
      such
      Lender, specifying such Affiliate’s entitlement to payments of principal and
      interest with respect to such Loan, and (ii) shall collect, prior to the time
      such Affiliate receives payments, from each such Lender the appropriate forms,
      certificates and statements described in Section 2.20
      (and
      updated as required by Section 2.20)
      as if
      such Affiliate were a Lender under Section 2.20.

     

    (e)  Calculation
      of all amounts payable to a Lender under this Section 2.18
      and
      under Section 2.19
      shall be
      made as though such Lender had actually funded each of its relevant Eurodollar
      Rate Loans through the purchase of a Eurodollar deposit bearing interest at
      the
      rate obtained pursuant to clause (i) of the definition of Adjusted Eurodollar
      Rate in an amount equal to the amount of such Eurodollar Rate Loan and having
      a
      maturity comparable to the relevant Interest Period and through the transfer
      of
      such Eurodollar deposit from an offshore office of such Lender to a domestic
      office of such Lender in the United States of America; provided,
      each
      Lender may fund each of its Eurodollar Rate Loans in any manner it sees fit
      and
      the foregoing assumptions shall be utilized only for the purposes of calculating
      amounts payable under this Section 2.18
      and
      under Section 2.19.

     

    2.19  Increased
      Costs; Capital Adequacy

     

    Subject
      to the provisions of Section 2.20
      (which
      shall be controlling with respect to the Tax matters), in the event that any
      Lender (which term shall include Issuing Bank for purposes of this Section 2.19)
      shall
      reasonably determine (which determination shall, absent demonstrable error,
      be
      final and conclusive and binding upon all parties hereto) that any law, treaty
      or governmental rule, regulation or order, or any change therein or in the
      interpretation, administration or application thereof (including the
      introduction of any new law, treaty or governmental rule, regulation or order),
      or any determination of a court or governmental authority, in each case that
      becomes effective after the date hereof, or compliance by such Lender with
      any
      guideline, request or directive issued or made after the date hereof by any
      central bank or other governmental or quasi-governmental authority (whether
      or
      not having the force of law): (a)
      imposes,
      modifies or holds applicable any reserve (including any marginal, emergency,
      supplemental, special or other reserve), special deposit, compulsory loan,
      FDIC
      insurance or similar requirement against assets held by, or deposits or other
      liabilities in or for the account of, or advances or loans by, or other credit
      (including letters of credit) extended by, or any other acquisition of funds
      by,
      any office of such Lender (other than any such reserve or other requirements
      with respect to Eurodollar Rate Loans that are reflected in the definition
      of
      Adjusted Eurodollar Rate); or (b)
      imposes
      any other condition (other than with respect to a Tax matter) on or affecting
      such Lender (or its applicable lending office) or its obligations hereunder
      or
      the London interbank market; and the result of any of the foregoing is to
      increase the cost to such Lender of agreeing to make, making or maintaining
      Loans hereunder or to reduce any amount received or receivable by such Lender
      (or its applicable lending office) with respect thereto; then, in any such
      case,
      Company shall promptly pay to such Lender, upon receipt of the statement
      referred to in the next sentence, such additional amount or amounts (in the
      form
      of an increased rate of, or a different method of calculating, interest or
      otherwise as such Lender in its reasonable discretion shall determine) as may
      be
      necessary to compensate such Lender for any such increased cost or reduction
      in
      amounts received or receivable hereunder. Such Lender shall deliver to Company
      (with a copy to Administrative Agent) a written statement, setting forth in
      reasonable detail the basis for calculating the additional amounts owed to
      such
      Lender under this Section 2.19,
      which
      statement shall be conclusive and binding upon all parties hereto absent
      demonstrable error.

     

    
      
         

      

      
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    2.20  Taxes;
      Withholding, Etc.

     

     (a)   All
      sums payable by any
      Credit Party hereunder and the other Credit Documents shall (except to the
      extent required by law) be paid free and clear of, and without any deduction
      or
      withholding on account of, any Tax (other than a Tax on the overall net income
      of any Lender or any Agent), imposed, levied, collected, withheld or assessed
      by
      or within the United States of America or any political subdivision in or of
      the
      United States of America or any other jurisdiction from or to which a payment
      is
      made by or on behalf of any Credit Party or by any federation or organization
      of
      which the United States of America or any such jurisdiction is a member at
      the
      time of payment.

     

    (b)  If
      any
      Credit Party or any other Person is required by law to make any deduction or
      withholding on account of any such Tax from any sum paid or payable by any
      Credit Party to Administrative Agent or any Lender under any of the Credit
      Documents: (i)
      Company
      shall notify Administrative Agent of any such requirement or any change in
      any
      such requirement as soon as Company becomes aware of it; (ii)
      Company
      shall pay any such Tax before the date on which penalties attach thereto, such
      payment to be made (if the liability to pay is imposed on any Credit Party)
      for
      its own account or (if that liability is imposed on Administrative Agent or
      such
      Lender, as the case may be) on behalf of and in the name of Administrative
      Agent
      or such Lender; (iii)
      the sum
      payable by such Credit Party in respect of which the relevant deduction,
      withholding or payment is required shall be increased to the extent necessary
      to
      ensure that, after the making of that deduction, withholding or payment,
      Administrative Agent or such Lender, as the case may be, receives on the due
      date a net sum equal to what it would have received had no such deduction,
      withholding or payment been required or made; and (iv)
      within
      thirty (30) days after paying any sum from which it is required by law to make
      any deduction or withholding, and within 30 days after the due date of payment
      of any Tax which it is required by clause (ii) above to pay, Company shall
      deliver to Administrative Agent evidence reasonably satisfactory to the other
      affected parties of such deduction, withholding or payment and of the remittance
      thereof to the relevant taxing or other authority; provided,
      no such
      additional amount shall be required to be paid to any Lender or any Agent under
      clause (iii) above with respect to any deductions or withholding applicable
      as
      of the date hereof (in the case of each Lender and each Agent listed on the
      signature pages hereof) or the effective date of the Assignment Agreement
      pursuant to which such Lender became a Lender or the date on which a successor
      Lender becomes a Lender, or the date a successor Agent becomes an Agent (in
      the
      case of each other Lender or Agent) in respect of payments to such Lender or
      such Agent.

     

    
      
         

      

      
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    (c)  Each
      Lender and each Agent that is not a United States Person (as such term is
      defined in Section 7701(a)(30) of the Internal Revenue Code) for U.S. federal
      income tax purposes (a “Non-US
      Lender”)
      shall,
      unless previously delivered pursuant to Section 2.20(c)
      of the
      Existing Credit Agreement or Original Credit Agreement, deliver to
      Administrative Agent for transmission to Company, on or prior to the Effective
      Date (in the case of each Lender and each Agent listed on the signature pages
      hereof on the Effective Date) or on or prior to the date of the Assignment
      Agreement pursuant to which it becomes a Lender or on or prior to the date
      a
      successor Lender becomes a Lender or on or prior to the date a successor Agent
      becomes an Agent (in the case of each other Lender and each Agent): (i) two
      original copies of Internal Revenue Service Form W-8BEN or W-8ECI (or any
      successor forms), properly completed and duly executed by such Non-U.S. Lender,
      and such other documentation required under the Internal Revenue Code to
      establish that such Non-U.S. Lender is not subject to deduction or withholding
      of United States federal income tax with respect to any payments to such
      Non-U.S. Lender of principal, interest, fees or other amounts payable under
      any
      of the Credit Documents, or (ii) if such Non-U.S. Lender is not a “bank” or
      other Person described in Section 881(c)(3) of the Internal Revenue Code
      and cannot deliver either Internal Revenue Service Form W-8BEN or W-8ECI
      pursuant to clause (i) above, a Certificate re Non-Bank Status together with
      two
      original copies of Internal Revenue Service Form W-8BEN (or any successor form),
      properly completed and duly executed by such Non-U.S. Lender, and such other
      documentation required under the Internal Revenue Code to establish that such
      Non-U.S. Lender is not subject to deduction or withholding of United States
      federal income tax with respect to any payments to such Non-U.S. Lender of
      interest payable under any of the Credit Documents. Each Non-U.S. Lender
      required to deliver any forms, certificates or other evidence with respect
      to
      United States federal income tax withholding matters pursuant to this
Section 2.20(c)
      hereby
      agrees, from time to time after the initial delivery by such Non-U.S. Lender
      of
      such forms, certificates or other evidence to promptly deliver to Administrative
      Agent for transmission to Company two new original copies of Internal Revenue
      Service Form W-8BEN or W-8ECI, or a Certificate re Non-Bank Status and two
      original copies of Internal Revenue Service Form W-8BEN (or successor forms
      or
      certificates as shall be adopted from time to time by the relevant United States
      taxing authority), as the case may be, properly completed and duly executed
      by
      such Non-U.S. Lender, and such other documentation required under the Internal
      Revenue Code to confirm or establish that such Non-U.S. Lender is not subject
      to
      deduction or withholding of United States federal income tax with respect to
      payments to such Non-U.S. Lender under the Credit Documents, (i) on or before
      the date that any such previously provided forms, certificates or evidence
      expires or becomes inaccurate, (ii) whenever a lapse in time or change in
      circumstances renders such previously provided forms, certificates or other
      evidence obsolete or inaccurate and (iii) from time to time thereafter if
      reasonably requested by Company or Administrative Agent, or to notify
      Administrative Agent and Company of its inability to deliver any such forms,
      certificates or other evidence. Company and each other Credit Party shall not
      be
      required to pay any additional amount to any Non-US Lender under Section 2.20(b)(iii)
      if such
      Non-U.S. Lender shall have (x) failed to deliver the forms, certificates or
      other evidence referred to in this Section 2.20(c),
      or (y)
      notified Administrative Agent and Company of its inability to deliver any such
      forms, certificates or other evidence, as the case may be; provided,
      if such
      Non-U.S. Lender shall have satisfied the requirements of the first sentence
      of
      this Section 2.20(c)
      on the
      Effective Date or on the date of the Assignment Agreement or the date of
      succession pursuant to which it became a Lender or an Agent, as applicable,
      nothing in this last sentence of Section 2.20(c)
      shall
      relieve Company and each other Credit Party of its obligation to pay any
      additional amounts pursuant to this Section 2.20
      in the
      event that, as a result of any change in any applicable law, treaty or
      governmental rule, regulation or order, or any change in the interpretation,
      administration or application thereof, such Non-U.S. Lender is no longer
      properly entitled to deliver forms, certificates or other evidence at a
      subsequent date establishing the fact that such Non-U.S. Lender is not subject
      to withholding as described herein.

     

    
      
         

      

      
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    (d)  Each
      Lender and each Agent that is not a Non-US Lender (a “US
      Lender”)
      shall,
      unless previously delivered pursuant to Section 2.20(d)
      of the
      Existing Credit Agreement or Original Credit Agreement, deliver to
      Administrative Agent and Company two original copies of Internal Revenue Service
      Form W-9 properly completed and duly executed by such US Lender on or prior
      to
      the Effective Date (or on or prior to the date it becomes a party to this
      Agreement), certifying that such US Lender is entitled to an exemption from
      United States backup withholding tax, or any successor form. Each US Lender
      required to deliver any forms, certificates or other evidence with respect
      to
      United States backup withholding tax matters pursuant to this Section 2.20(d)
      hereby
      agrees, from time to time after the initial delivery by such US Lender of such
      forms, certificates or other evidence, that such US Lender shall promptly
      deliver to Administrative Agent for transmission to Company two new original
      copies of Internal Revenue Service Form W-9, properly completed and duly
      executed by such US Lender, together with any other certificate or statement
      of
      exemption required in order to confirm or establish that such US Lender is
      exempt from United States backup withholding tax with respect to payments to
      such US Lender under any of the Credit Documents (i) on or before the date
      that
      any such previously provided forms, certificates or other evidence expires
      or
      becomes obsolete, (ii) whenever a lapse in time or change in circumstances
      render such previously provided forms, certificates or other evidence obsolete
      or inaccurate, and (iii) from time to time thereafter if reasonably requested
      by
      Company or Administrative Agent, or shall notify Administrative Agent and
      Company of its inability to deliver any such forms, certificates or other
      evidence. Company and each other Credit Party shall not be required to pay
      any
      additional amount to any US Lender under Section 2.20(b)(iii)
      to the
      extent deduction or withholding is a result of such US Lender’s failure to
      provide an Internal Revenue Service Form W-9 establishing that such US Lender
      is
      exempt from United States backup withholding tax; provided,
      if such
      US Lender shall have satisfied the requirements of this Section 2.20(d)
      on the
      Effective Date or on the date of the Assignment Agreement or on the date of
      the
      succession pursuant to which it became a Lender or an Agent, as applicable,
      nothing in this last sentence of Section 2.20(d)
      shall
      relieve Company and each other Credit Party of its obligation to pay any
      additional amounts otherwise payable pursuant to Section 2.20(b)(iii)
      in the
      event that, as a result of any change in any applicable law, treaty or
      governmental rule, regulation or order, or any change in the interpretation,
      administration or application thereof, such US Lender is no longer properly
      entitled to deliver forms, certificates or other evidence at a subsequent date
      establishing the fact that such US Lender is not subject to United States backup
      withholding tax as described herein. If such US Lender fails to deliver such
      forms, then Company may withhold from any payment to such US Lender an amount
      equal to the applicable backup withholding tax imposed by the Internal Revenue
      Code.

     

    (e)  If
      any
      Lender or any Agent determines that it has received a refund in respect of
      any
      Taxes as to which additional amounts have been paid to it by Company pursuant
      to
Section 2.20(b)(iii),
      it
      shall promptly remit such refund (including any interest included in such
      refund) to Company, net of all out-of-pocket expenses of such Lender or such
      Agent, as the case may be; provided however,
      that
      Company, upon request of such Lender or such Agent, as the case may be, agrees
      to promptly return such refund to such party in the event such party is required
      to repay such refund to the relevant taxing authority. Such Lender or such
      Agent, as the case may be, shall, at Company’s request, provide Company with a
      copy of any notice of assessment or other evidence of the requirement to repay
      such refund received from the relevant taxing authority (provided that such
      Lender or such Agent, as the case may be, may delete any information therein
      that such Lender or such Agent, as the case may be, deems confidential).


     

    
      
         

      

      
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    (f)  For
      purposes of this Section 2.20,
      the
      term “Lender” shall include Issuing Bank. 

     

    2.21  Capital
      Adequacy Adjustment

     

    If
      any
      Lender (which term shall include Issuing Bank for purposes of this Section 2.21)
      shall
      have determined that the adoption, effectiveness, phase-in or applicability
      after the date hereof of any law, rule or regulation (or any provision thereof)
      regarding capital adequacy, or any change therein or in the interpretation
      or
      administration thereof by any governmental authority, central bank or comparable
      agency charged with the interpretation or administration thereof, or compliance
      by any Lender (or its applicable lending office) with any guideline, request
      or
      directive regarding capital adequacy (whether or not having the force of law)
      of
      any such governmental authority, central bank or comparable agency, has or
      would
      have the effect of reducing the rate of return on the capital of such Lender
      or
      any corporation controlling such Lender as a consequence of, or with reference
      to, such Lender’s Loans or Commitments or Letters of Credit or participations
      therein or other obligations hereunder with respect to the Loans or the Letters
      of Credit to a level below that which such Lender or such controlling
      corporation could have achieved but for such adoption, effectiveness, phase-in,
      applicability, change or compliance (taking into consideration the policies
      of
      such Lender or such controlling corporation with regard to capital adequacy),
      then from time to time, within five (5) Business Days after receipt by Company
      from such Lender of the statement referred to in the next sentence, Company
      shall pay to such Lender such additional amount or amounts as will compensate
      such Lender or such controlling corporation on an after-tax basis for such
      reduction. Such Lender shall deliver to Company (with a copy to Administrative
      Agent) a written statement, setting forth in reasonable detail the basis of
      the
      calculation of such additional amounts, which statement shall be conclusive
      and
      binding upon all parties hereto absent demonstrable error.

     

    2.22  Obligation
      to Mitigate

     

    Each
      Lender (which term shall include Issuing Bank for purposes of this Section 2.22)
      agrees
      that, as promptly as practicable after the officer of such Lender responsible
      for administering its Loans or Letters of Credit, as the case may be, becomes
      aware of the occurrence of an event or the existence of a condition that would
      cause such Lender to become an Affected Lender or that would entitle such Lender
      to receive payments under Section 2.19,
      2.20
      or
2.21,
      it
      will, to the extent not inconsistent with the internal policies of such Lender
      and any applicable legal or regulatory restrictions, use reasonable efforts
      (i)
      to make,
      issue, fund or maintain its Credit Extensions, including any Affected Loans,
      through another office of such Lender, or (ii)
      take
      such other measures as such Lender may deem reasonable, if as a result thereof
      the circumstances which would cause such Lender to be an Affected Lender would
      cease to exist or the additional amounts which would otherwise be required
      to be
      paid to such Lender pursuant to Section 2.19,
      2.20
      or
2.21
      would be
      materially reduced and if, as determined by such Lender in its sole discretion,
      the making, issuing, funding or maintaining of such Commitments, Loans or
      Letters of Credit through such other office or in accordance with such other
      measures, as the case may be, would not otherwise materially adversely affect
      such Commitments, Loans or Letters of Credit or the interests of such Lender;
      provided,
      such
      Lender will not be obligated to utilize such other office pursuant to this
      Section 2.22
      unless
      Company agrees to pay all incremental expenses incurred by such Lender as a
      result of utilizing such other office as described in clause (i) above. A
      certificate as to the amount of any such expenses payable by Company pursuant
      to
      this Section 2.22
      (setting
      forth in reasonable detail the basis for requesting such amount) submitted
      by
      such Lender to Company (with a copy to Administrative Agent) shall be conclusive
      absent demonstrable error. With respect to any Lender’s claim for compensation
      under Sections 2.19,
      2.20
      or
2.21,
      Company
      shall not be required to compensate such Lender for any amount incurred more
      than ninety (90) days prior to the date that such Lender becomes aware of the
      event that gives rise to such claim.

     

    
      
         

      

      
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    2.23  Defaulting
      Lenders

     

    Anything
      contained herein to the contrary notwithstanding, in the event that any Lender
      (a “Defaulting
      Lender”)
      defaults (a “Funding Default”)
      in its
      obligation to fund any Revolving Loan (a “Defaulted Revolving Loan”)
      as a
      result of the appointment of a receiver or conservator with respect to such
      Lender at the direction or request of any regulatory agency or authority, then
      (a)
      during
      any Default Period with respect to such Defaulting Lender, such Defaulting
      Lender shall be deemed not to be a “Lender” for purposes of voting on any
      matters (including the granting of any consents or waivers) with respect to
      any
      of the Credit Documents; (b)
      to the
      extent permitted by applicable law, until such time as the Default Excess with
      respect to such Defaulting Lender shall have been reduced to zero, (i)
      any
      voluntary prepayment of the Revolving Loans shall, if Company so directs at
      the
      time of making such voluntary prepayment, be applied to the Revolving Loans
      of
      other Lenders as if such Defaulting Lender had no Revolving Loans outstanding
      and the Revolving Credit Exposure of such Defaulting Lender were zero, and
      (ii)
      any
      mandatory prepayment of the Revolving Loans shall, if Company so directs at
      the
      time of making such mandatory prepayment, be applied to the Revolving Loans
      of
      other Lenders (but not to the Revolving Loans of such Defaulting Lender) as
      if
      such Defaulting Lender had funded all Defaulted Revolving Loans of such
      Defaulting Lender, it being understood and agreed that Company shall be entitled
      to retain any portion of any mandatory prepayment of the Revolving Loans that
      is
      not paid to such Defaulting Lender solely as a result of the operation of the
      provisions of this clause (b); (c)
      such
      Defaulting Lender’s Revolving Loan Commitment and outstanding Revolving Loans
      and such Defaulting Lender’s applicable Pro Rata Share of the Letter of Credit
      Usage shall be excluded for purposes of calculating the commitment fee payable
      to Lenders pursuant to Section 2.10
      in
      respect of any day during any Default Period with respect to such Defaulting
      Lender, and such Defaulting Lender shall not be entitled to receive any
      commitment fee pursuant to Section 2.10
      with
      respect to such Defaulting Lender’s Commitment in respect of any Default Period
      with respect to such Defaulting Lender; and (d)
      the
      Total Utilization of Revolving Loan Commitments as at any date of determination
      shall be calculated as if such Defaulting Lender had funded all Defaulted
      Revolving Loans of such Defaulting Lender. No Revolving Loan Commitment of
      any
      Lender shall be increased or otherwise affected, and, except as otherwise
      expressly provided in this Section 2.23,
      performance by Company of its obligations hereunder and the other Credit
      Documents shall not be excused or otherwise modified as a result of any Funding
      Default or the operation of this Section 2.23.
      The
      rights and remedies against a Defaulting Lender under this Section 2.23
      are in
      addition to other rights and remedies which Company may have against such
      Defaulting Lender with respect to any Funding Default and which Administrative
      Agent or any Lender may have against such Defaulting Lender with respect to
      any
      Funding Default.

     

    
      
         

      

      
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    2.24  Removal
      or Replacement of a Lender

     

    Anything
      contained herein to the contrary notwithstanding, in the event that:
(a)
      any
      Lender (an “Increased-Cost Lender”)
      shall
      give notice to Company that such Lender is an Affected Lender or that such
      Lender is entitled to receive payments under Section 2.19,
      Section 2.20
      or
Section 2.21,
      the
      circumstances which have caused such Lender to be an Affected Lender or which
      entitle such Lender to receive such payments shall remain in effect, and such
      Lender shall fail to withdraw such notice within five (5) Business Days after
      Company’s request for such withdrawal; or (b)
      any
      Lender shall become a Defaulting Lender, the Default Period for such Defaulting
      Lender shall remain in effect, and such Defaulting Lender shall fail to cure
      the
      default as a result of which it has become a Defaulting Lender within five
      (5)
      Business Days after Company’s request that it cure such default; or (c)
      in
      connection with any proposed amendment, modification, termination, waiver or
      consent with respect to any of the provisions hereof as contemplated by
Section 10.5(b)
      or
Section 10.5(c),
      the
      consent of Requisite Lenders shall have been obtained but the consent of one
      or
      more of such other Lenders (each a “Non-Consenting
      Lender”)
      whose
      consent is required shall not have been obtained; then, with respect to each
      such Increased-Cost Lender, Defaulting Lender or Non-Consenting Lender (the
      “Terminated
      Lender”),
      Company may, by giving written notice to Administrative Agent and any Terminated
      Lender of its election to do so: (i)
      (1)
      elect to
      terminate the Commitment, if any, of such Terminated Lender upon receipt by
      such
      Terminated Lender of such notice, and (2)
      prepay
      on the date of such termination any outstanding Loans made by such Terminated
      Lender, together with accrued and unpaid interest thereon and any other amounts
      payable to such Terminated Lender hereunder pursuant to Section 2.18(c),
      2.19,
      2.20
      or
2.21
      or
      otherwise; or (ii)
      elect to
      cause such Terminated Lender (and such Terminated Lender hereby irrevocably
      agrees) to assign its outstanding Loans and its Commitment, if any, in full
      to
      one or more Eligible Assignees (each a “Replacement
      Lender”)
      in
      accordance with the provisions of Section 10.6
      (and no
      processing or recordation fee shall be payable under Section 10.6);
      provided,
      (1)
      on the
      date of such assignment, Company shall pay any amounts payable to such
      Terminated Lender pursuant to Section 2.18(c),
      2.19,
      2.20
      or
2.21
      or
      otherwise as if it were a prepayment and (2)
      in the
      event such Terminated Lender is a Non-Consenting Lender, each Replacement Lender
      shall consent, at the time of such assignment, to each matter in respect of
      which such Terminated Lender was a Non-Consenting Lender; provided,
      (A)
      Company
      may not make either of such elections with respect to any Terminated Lender
      that
      is also Issuing Bank unless, prior to the effectiveness of such election
      arrangements satisfactory to such Issuing Bank (including the furnishing of
      a
      back-up standby letter of credit in form and substance, and issued by an issuer
      reasonably satisfactory to such Issuing Bank or the depositing of cash
      collateral into a cash collateral account in amounts and pursuant to
      arrangements reasonably satisfactory to such Issuing Bank) have been made with
      respect to each outstanding Letter of Credit issued by such Issuing Bank (or
      such outstanding Letter of Credit has been cancelled) and (B)
      the
      Lender that acts as the Administrative Agent may not be replaced hereunder
      except in accordance with the terms of Section 9.7(a).
      Upon
      the prepayment of all amounts owing to any Terminated Lender and the termination
      of such Terminated Lender’s Commitment, if any, (a)
      the
      definition of “Commitments” shall be deemed modified to reflect any
      corresponding changes in the Commitments, and (b)
      such
      Terminated Lender shall no longer constitute a “Lender” for purposes hereof;
provided,
      any
      rights of such Terminated Lender to indemnification hereunder shall survive
      as
      to such Terminated Lender.

     

    
      
         

      

      
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    2.25  Incremental
      Facilities

     

    (a)  Company
      may by written notice to GSCP elect to request (A)
      prior to
      the Revolving Commitment Termination Date, an increase to the existing Revolving
      Loan Commitments (any such increase, the “New
      Revolving Loan Commitments”)
      and/or
(B)
      the
      establishment of one or more new term loan commitments (the “New
      Term Loan Commitments”),
      by an
      amount not in excess of $100,000,000 in the aggregate and not less than
      $5,000,000 individually (or such lesser amount which shall be approved by
      Administrative Agent and GSCP or such lesser amount that shall constitute the
      difference between $100,000,000 and all such New Revolving Loan Commitments
      and
      New Term Loan Commitments obtained prior to such date), and integral multiples
      of $5,000,000 in excess of that amount. Each such notice shall specify
(A)
      the
      date
      (each, an “Increased
      Amount Date”)
      on
      which Company proposes that the New Revolving Loan Commitments or New Term
      Loan
      Commitments, as applicable, shall be effective, which shall be a date not less
      than (ten) 10 Business Days after the date on which such notice is delivered
      to
      GSCP and (B)
      the
      identity of each Lender or other Person that is an Eligible Assignee (each,
      a
“New
      Revolving Loan Lender”
or
      “New
      Term Loan Lender”,
      as
      applicable) to whom Company proposes any portion of such New Revolving Loan
      Commitments or New Term Loan Commitments, as applicable, be allocated and the
      amounts of such allocations; provided
      that any
      Lender approached to provide all or a portion of the New Revolving Loan
      Commitments or New Term Loan Commitments may elect or decline, in its sole
      discretion, to provide a New Revolving Loan Commitment or a New Term Loan
      Commitment. Such New Revolving Loan Commitments or New Term Loan Commitments
      shall become effective, as of such Increased Amount Date; provided
      that
      (1) no Default or Event of Default shall exist on such Increased Amount
      Date before or after giving effect to such New Revolving Loan Commitments or
      New
      Term Loan Commitments, as applicable; (2) both before and after giving
      effect to the making of any New Revolving Loan or Series of New Term Loans,
      each
      of the conditions set forth in Section 3.2
      shall be
      satisfied; (3)  Company and its Subsidiaries shall be in compliance with
      each of the covenants set forth in Section 6.6
      on a Pro
      Forma Basis as of the last day of the most recently ended Fiscal Quarter after
      giving effect to any Loans made pursuant to such New Revolving Loan Commitments
      on the Increased Amount Date or New Term Loan Commitments, as applicable and
      after giving effect to use of proceeds thereof; (4) the Leverage Ratio on a
      Pro Forma Basis as of the last day of the most recently ended Fiscal Quarter
      after giving effect to any Loans made pursuant to such New Revolving Loan
      Commitments on the Increased Amount Date or New Term Loan Commitments, as
      applicable and after giving effect to use of proceeds thereof, shall be the
      Leverage Ratio as set forth for such Fiscal Quarter in Section 6.6(b) minus
      0.25;
      (5) the New Revolving Loan Commitments or New Term Loan Commitments, as
      applicable, shall be effected pursuant to one or more Joinder Agreements
      executed and delivered by Company, and GSCP, Administrative Agent, each of
      which
      shall be recorded in the Register and shall be subject to the requirements
      set
      forth in Section 2.20(c)
      and
Section 2.20(d);
      (6) Company shall make any payments required pursuant to Section 2.18(c)
      in
      connection with the New Revolving Loan Commitments or New Term Loan Commitments,
      as applicable; and (7) Company shall deliver or cause to be delivered any
      legal opinions or other documents reasonably requested by Administrative Agent
      in connection with any such transaction. Any New Term Loans made on an Increased
      Amount Date shall be designated, a separate series (a “Series”)
      of New
      Term Loans for all purposes of this Agreement.

     

    
      
         

      

      
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    (b)  On
      any
      Increased Amount Date on which New Revolving Loan Commitments are effected,
      subject to the satisfaction of the foregoing terms and conditions, (a)
      each of
      the Revolving Lenders shall assign to each of the New Revolving Loan Lenders,
      and each of the New Revolving Loan Lenders shall purchase from each of the
      Revolving Loan Lenders, at the principal amount thereof (together with accrued
      interest), such interests in the Revolving Loans outstanding on such Increased
      Amount Date as shall be necessary in order that, after giving effect to all
      such
      assignments and purchases, such Revolving Loans will be held by existing
      Revolving Loan Lenders and New Revolving Loan Lenders ratably in accordance
      with
      their Revolving Loan Commitments after giving effect to the addition of such
      New
      Revolving Loan Commitments to the Revolving Loan Commitments, (b)
      each New
      Revolving Loan Commitment shall be deemed for all purposes a Revolving Loan
      Commitment and each Loan made thereunder (a “New
      Revolving Loan”)
      shall
      be deemed, for all purposes, a Revolving Loan and (c)
      each New
      Revolving Loan Lender shall become a Lender with respect to the New Revolving
      Loan Commitment and all matters relating thereto.

     

    (c)  On
      any
      Increased Amount Date on which any New Term Loan Commitments of any Series
      are
      effective, subject to the satisfaction of the foregoing terms and conditions,
      (i)
      each New
      Term Loan Lender of any Series shall make a Loan to Company (a “New
      Term Loan”)
      in an
      amount equal to its New Term Loan Commitment of such Series, and (ii)
      each New
      Term Loan Lender of any Series shall become a Lender hereunder with respect
      to
      the New Term Loan Commitment of such Series and the New Term Loans of such
      Series made pursuant thereto.

     

    (d)  Administrative
      Agent shall notify Lenders promptly upon receipt of Company’s notice of each
      Increased Amount Date and in respect thereof (y)
      the New
      Revolving Loan Commitments and the New Revolving Loan Lenders or the Series
      of
      New Term Loan Commitments and the New Term Loan Lenders of such Series, as
      applicable, and (z)
      in the
      case of each notice to any Revolving Loan Lender, the respective interests
      in
      such Revolving Loan Lender’s Revolving Loans, in each case subject to the
      assignments contemplated by this Section 2.25.

     

    (e)  The
      terms
      and provisions of the New Term Loans and New Term Loan Commitments of any Series
      shall be, except as otherwise set forth herein or in the Joinder Agreement,
      identical to the Tranche D Term Loans. The terms and provisions of the New
      Revolving Loans shall be identical to the Revolving Loans. In any event
(i)
      the
      weighted average life to maturity of all New Term Loans of any Series shall
      be
      no shorter than the weighted average life to maturity of the Tranche D Terms
      Loans, (ii)
      the
      applicable New Term Loan Maturity Date of each Series shall be no shorter than
      the final maturity of the Tranche D Term Loans and (iii)
      the
      interest rate margins applicable to the New Term Loans of each Series shall
      be
      determined by Company and the applicable new Lenders and shall be set forth
      in
      each applicable Joinder Agreement; provided however
      that the
      interest rate applicable to the New Term Loans shall not be greater than the
      highest interest rate that may, under any circumstances, be payable with respect
      to Tranche D Term Loans plus 0.50% per annum unless the interest rate with
      respect to the Tranche D Term Loan is increased so as to be equal to or be
      0.50%
      per annum lower than, the interest rate applicable to the New Term
      Loans.

     

    
      
         

      

      
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    SECTION
      3.   CONDITIONS
      PRECEDENT

     

    3.1  Effective
      Date

     

    The
      obligations of Lenders to make any Credit Extension to be made on the Effective
      Date are subject to the satisfaction, or waiver in accordance with Section 10.5,
      of the
      following conditions on or before the Effective Date:

     

    (a)  This
      Agreement.
      Administrative Agent shall have received sufficient copies of this Agreement,
      executed and delivered by (i) each applicable Credit Party, for each Lender
      and
      its counsel; (ii) each Tranche D Term Loan Lender and Continuing Lender; and
      (iii) Requisite Lenders as such term is defined in the Existing Credit
      Agreement.

     

    (b)  Organizational
      Documents, Etc.
      Administrative Agent shall have received a copy of each of the following
      documents, originally executed (where applicable) and delivered by each Credit
      Party, as applicable: (i)
      certified copies of the Certificate or Articles of Incorporation (or equivalent
      charter document) of such Person, together with a good standing certificate
      from
      the Secretary of State of its jurisdiction of incorporation or formation, as
      applicable and, to the extent generally available, a certificate or other
      evidence of good standing as to payment of any applicable franchise or similar
      taxes from the appropriate taxing authority of each such jurisdiction, each
      dated the Effective Date or a recent date prior thereto; provided that in lieu
      of delivery of each of the documents set forth in this Section 3.1(b)(i),
      the
      Company may deliver a certificate executed by an Authorized Officer of such
      Credit Party certifying that there have been no material amendments to those
      documents previously delivered to the Administrative Agent on the Closing Date
      pursuant to Section 3.1(b)(i)
      of the
      Original Credit Agreement;
      (ii)
      copies
      of the Bylaws (or equivalent operative agreement) of such Person, certified
      as
      of the Effective Date by such Person’s corporate secretary or an assistant
      secretary; provided that in lieu of delivery of each of the documents set forth
      in this Section 3.1(b)(ii),
      the
      Company may deliver a certificate executed by an Authorized Officer of such
      Credit Party certifying that there have been no material amendments to those
      documents previously delivered to the Administrative Agent on the Closing Date
      pursuant to Section 3.1(b)(ii)
      of the
      Original Credit Agreement;
      (iii)
      resolutions of the Board of Directors (or similar governing body) of such Person
      approving and authorizing the execution, delivery and performance of the Credit
      Documents to which it is a party, certified as of the Effective Date by the
      corporate secretary or an assistant secretary of such Person as being in full
      force and effect without modification or amendment; and (iv)
      signature and incumbency certificates of the officers of such Person executing
      the Credit Documents to which it is a party, dated the Effective Date.


     

    (c)  Governmental
      Authorizations and Consents.
      Each
      Credit Party shall have obtained all material Governmental Authorizations and
      all material consents of other Persons, in each case that are necessary in
      connection with the transactions contemplated by the Credit Documents and each
      of the foregoing shall be in full force and effect. No action, request for
      stay,
      petition for review or rehearing, reconsideration, or appeal with respect to
      any
      of the foregoing shall be pending, and the time for any applicable agency to
      take action to set aside its consent on its own motion shall have
      expired.

     

    (d)  Opinions
      of Counsel to Credit Parties.
      Lenders
      shall have received executed copies of the favorable written opinion of Weil,
      Gotshal & Manges LLP, in the form of Exhibit D
      and as
      to such other matters as Agents may reasonably request, and otherwise in form
      and substance reasonably satisfactory to Agents and Latham & Watkins LLP,
      dated as of the Effective Date.

     

    
      
         

      

      
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    (e)  Fees.
      Company
      shall have paid to Administrative Agent, for distribution (as appropriate)
      to
      Agents and Lenders, the fees payable on the Effective Date referred to in
Section 2.10(c)
      and all
      expenses (including the reasonable fees, disbursements and other charges of
      counsel) for which invoices have been presented on or prior to the Effective
      Date.

     

    (f)  Effective
      Date Certificate.
      Holdings and Company shall have delivered to Administrative Agent an Effective
      Date Certificate.

     

    (g)  No
      Litigation.
      There
      shall not exist any action, suit, investigation, litigation or proceeding or
      other legal or regulatory developments, pending or threatened in any court
      or
      before any arbitrator or Governmental Authority that, to the knowledge of
      Company, could reasonably be expected to have a Material Adverse
      Effect.

     

    (h)  Accrued
      Interest.
      All
      accrued and unpaid interest payable on the Tranche C Term Loans outstanding
      immediately prior to the Effective Date and which are not converted into Tranche
      D Term Loans and any amounts payable pursuant to Section 2.18 in respect thereof
      shall have been paid on the Effective Date to the Administrative Agent for
      the
      benefit of the Lenders.

     

    Each
      Agent and Lender, by delivering its signature page to this Agreement, to the
      extent applicable, shall be deemed to have acknowledged receipt of, and
      consented to and approved (as long as substantially in the form delivered to
      such Agent or Lender, as applicable, including any changed pages thereto
      delivered to such Agent or Lenders, as applicable), each Credit Document and
      each other document required to be approved by Requisite Lenders or Lenders,
      as
      applicable.

     

    3.2  Conditions
      to Each Credit Extension

     

    The
      obligation of each Lender to make any Credit Extension on any Credit Extension
      Date, including the Effective Date, is subject to the following further
      conditions precedent:

     

    (a)  Administrative
      Agent, Issuing Bank and Swing Line Lender, as the case may be, shall have
      received a fully executed and delivered Funding Notice or Request for Issuance,
      as the case may be;

     

    (b)  as
      of
      such Credit Extension Date, the representations and warranties contained herein
      and in the other Credit Documents shall be true, correct and complete in all
      material respects on and as of that Credit Extension Date to the same extent
      as
      though made on and as of that date, except to the extent such representations
      and warranties specifically relate to an earlier date, in which case such
      representations and warranties shall have been true, correct and complete in
      all
      material respects on and as of such earlier date;

     

    (c)  as
      of
      such Credit Extension Date, no event shall have occurred and be continuing
      or
      would result from the consummation of the borrowing contemplated by such Funding
      Notice or Letter of Credit contemplated by such Request for Issuance that would
      constitute an Event of Default or a Default; and

     

    
      
         

      

      
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    (d)  on
      or
      before the date of issuance of any Letter of Credit, Administrative Agent shall
      have received all other information required by the applicable Request for
      Issuance, and such other documents or information as Issuing Bank may reasonably
      require in connection with the issuance of such Letter of Credit.

     

    Any
      Notice shall be executed by an Authorized Officer of Company or by the executive
      officer thereof designated by an Authorized Officer of Company in a writing
      delivered to Administrative Agent. In lieu of delivering a Funding Notice or
      Request for Issuance, Company may give Administrative Agent telephonic notice
      by
      the required time of any proposed borrowing, conversion/continuation or issuance
      of a Letter of Credit, as the case may be; provided
      each
      such notice or request shall be promptly confirmed in writing by delivery of
      the
      applicable Funding Notice or Request for Issuance to Administrative Agent on
      or
      before the applicable date of borrowing, continuation/conversion or issuance.
      Neither Administrative Agent nor any Lender shall incur any liability to Company
      in acting upon any telephonic notice referred to above that Administrative
      Agent
      believes in good faith to have been given by a duly authorized officer or other
      person authorized on behalf of Company or for otherwise acting in good faith
      in
      connection with any such notice. Upon conversion or continuation of the
      applicable basis for determining the interest rate with respect to any Loans
      in
      accordance with this Agreement or upon funding of Loans by Lenders in accordance
      herewith, in either case pursuant to any such telephonic notice, Company shall
      have effected a conversion or continuation (as the case may be) or shall have
      effected Loans, respectively, hereunder. Company shall notify Administrative
      Agent (or Issuing Bank, as the case may be) prior to the funding of any Loans
      or
      the issuance of any Letter of Credit in the event that any of the matters to
      which Company is required to certify in the applicable Notice is no longer
      true
      and correct as of the applicable Credit Extension Date, and the acceptance
      by
      Company of the proceeds of any Loans or the issuance of any Letter of Credit
      shall constitute a re-certification by Company, as of the applicable Credit
      Extension Date, as to the matters to which Company is required to certify in
      the
      applicable Funding Notice or Request for Issuance.

     

    SECTION
      4.   REPRESENTATIONS
      AND WARRANTIES

     

    In
      order
      to induce Lenders and Issuing Bank to enter into this Agreement and to make
      each
      Credit Extension to be made thereby, Company represents and warrants to each
      Lender as follows:

     

    4.1  Organization
      and Powers

     

    Each
      Credit Party is a corporation, limited liability company or limited partnership,
      as applicable, duly organized or formed, as applicable, validly existing and,
      to
      the extent such concept applies, in good standing under the laws of its
      jurisdiction of incorporation or formation, as applicable. Each Credit Party
      has
      all requisite corporate or other organizational power and authority to own
      and
      operate its properties, to carry on its business as now conducted and as
      proposed to be conducted, to enter into the Credit Documents to which it is
      a
      party and to carry out the transactions contemplated thereby.

     

    4.2  Qualification
      and Good Standing

     

    
      
         

      

      
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    Each
      Credit Party is qualified to do business and in good standing in every
      jurisdiction where its assets are located and wherever necessary to carry out
      its business and operations, except in jurisdictions where the failure to be
      so
      qualified or in good standing has not had and could not be reasonably be
      expected to have a Material Adverse Effect.

     

    4.3  Subsidiaries

     

    As
      of the
      Effective Date, all of the Subsidiaries of Holdings are identified in
Schedule 4.1.
      As of
      the Effective Date, the issued and outstanding capital stock of each of the
      Subsidiaries of Holdings identified in Schedule 4.1
      is duly
      authorized, validly issued, fully paid and nonassessable and none of such
      capital stock constitutes Margin Stock. Each of the Subsidiaries of Holdings
      is
      a corporation, limited liability company or limited partnership, as applicable,
      duly organized or formed, as applicable, validly existing, to the extent such
      concept applies, and in good standing under the laws of its respective
      jurisdiction of incorporation or formation, as applicable, has all requisite
      corporate power and authority to own and operate its properties and to carry
      on
      its business as now conducted and as proposed to be conducted, and is qualified
      to do business and in good standing in every jurisdiction where its assets
      are
      located and wherever necessary to carry out its business and operations, in
      each
      case except where failure to be so qualified or in good standing or a lack
      of
      such corporate power and authority has not had and could not be reasonably
      expected to have a Material Adverse Effect. As of the Effective Date,
Schedule 4.1
      correctly sets forth the ownership interest of Holdings and each of its
      Subsidiaries in each of the Subsidiaries of Holdings identified
      therein.

     

    4.4  Authorization
      of Borrowing; No Conflict

     

    The
      execution, delivery and performance of the Credit Documents have been duly
      authorized by all necessary corporate, limited liability company or limited
      partnership, as applicable, action on the part of each Credit Party that is
      a
      party thereto. The execution, delivery and performance by Credit Parties of
      the
      Credit Documents to which they are parties and the consummation of the
      transactions contemplated by the Credit Documents do not and will not
(a)
      violate
      any provision of any law or any governmental rule or regulation applicable
      to
      Holdings or any of its Subsidiaries, the Certificate or Articles of
      Incorporation or Bylaws (or equivalent constituent documents) of Holdings or
      any
      of its Subsidiaries or any order, judgment or decree of any court or other
      agency of government binding on Holdings or any of its Subsidiaries, except
      to
      the extent such violation could not be reasonably be expected to have a Material
      Adverse Effect, (b)
      conflict
      with, result in a breach of or constitute (with due notice or lapse of time
      or
      both) a default under any Contractual Obligation of Holdings or any of its
      Subsidiaries, (c)
      result
      in or require the creation or imposition of any Lien upon any of the properties
      or assets of Holdings or any of its Subsidiaries (other than any Liens created
      under any of the Credit Documents in favor of Collateral Agent on behalf of
      the
      Secured Parties), or (d)
      require
      any approval of stockholders or any approval or consent of any Person under
      any
      Contractual Obligation of Holdings or any of its Subsidiaries, except for such
      approvals or consents which will be obtained on or before the Effective Date
      and
      disclosed in writing to Lenders and except for any such consents or approvals
      the failure of which to obtain would not reasonably be expected to have a
      Material Adverse Effect.

     

    4.5  Governmental
      Consents

     

    The
      execution, delivery and performance by Credit Parties of the Credit Documents
      to
      which they are parties and the consummation of the transactions contemplated
      by
      the Credit Documents do not and will not require any registration with, consent
      or approval of, or notice to, or other action to, with or by, any federal,
      state
      or other governmental authority or regulatory body except for (a) those with
      respect to the Collateral contemplated to be made under the Credit Documents,
      (b) those otherwise delivered to the Collateral Agent for filing and/or
      recordation, (c) such as have been obtained and are in full force and effect
      and
      (d) any such consents or approvals the failure of which to obtain would not
      reasonably be expected to have a Material Adverse Effect.

     

    
      
         

      

      
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    4.6  Binding
      Obligation

     

    Each
      of
      the Credit Documents has been duly executed and delivered by each Credit Party
      that is a party thereto and is the legally valid and binding obligation of
      such
      Credit Party, enforceable against such Credit Party in accordance with its
      respective terms, except as may be limited by bankruptcy, insolvency,
      reorganization, moratorium or similar laws relating to or limiting creditors’
rights generally or by equitable principles relating to
      enforceability.

     

    4.7  Valid
      Issuance of the Senior Subordinated Notes

     

    Company
      has the corporate power and authority to issue the Senior Subordinated Notes.
      The Senior Subordinated Notes, when issued and paid for, will be the legally
      valid and binding obligations of Company, enforceable against Company in
      accordance with their terms, except as may be limited by bankruptcy, insolvency,
      reorganization, moratorium or similar laws relating to or limiting creditors’
rights generally or by equitable principles relating to enforceability. The
      subordination provisions of the Senior Subordinated Note Documents will be
      enforceable against the holders of the Senior Subordinated Notes, and the Loans
      and all other monetary Obligations hereunder are and will be within the
      definition of “Senior Debt” included in the Senior Subordinated Note Documents.
      The Senior Subordinated Notes, when issued and sold, will either (a)
      have
      been registered or qualified under applicable federal and state securities
      laws
      or (b)
      be
      exempt therefrom.

     

    4.8  Financial
      Condition

     

    Company
      has heretofore delivered to Lenders the Historical Financial Statements all
      of
      which were prepared in conformity with GAAP and fairly present, in all material
      respects, the financial position, on a consolidated basis, of the entities
      described in such financial statements as at the respective dates thereof and
      the results of operations and cash flows, on a consolidated basis, of the
      entities described therein for each of the periods then ended, subject, in
      the
      case of any such unaudited financial statements, to changes resulting from
      audit
      and normal year-end adjustments and, in the case of interim financial
      statements, except for the absence of notes thereto. 

     

    4.9  No
      Material Adverse Change

     

    Since
      December 31, 2005, no event or change has occurred that has caused or evidences,
      either in any case or in the aggregate, a Material Adverse Effect. 

     

    4.10  Litigation;
      Adverse Facts

     

    There
      are
      no Adverse Proceedings, individually or in the aggregate, that could reasonably
      be expected to result in a Material Adverse Effect. Neither Holdings nor any
      of
      its Subsidiaries (a)
      is in
      violation of any applicable laws (including Environmental Laws) that,
      individually or in the aggregate, could reasonably be expected to result in
      a
      Material Adverse Effect, or (b)
      is
      subject to or in default with respect to any final judgments, writs,
      injunctions, decrees, rules or regulations of any court or any federal, state,
      municipal or other governmental department, commission, board, bureau, agency
      or
      instrumentality, domestic or foreign, that, individually or in the aggregate,
      could reasonably be expected to result in a Material Adverse
      Effect.

     

    
      
         

      

      
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    4.11  Payment
      of Taxes

     

    Except
      in
      accordance with Section 5.3,
      all
      Federal and material state and other tax returns and reports of Holdings and
      its
      Subsidiaries required to be filed by any of them have been timely filed, and
      all
      Federal and material state and other taxes shown on such tax returns to be
      due
      and payable and all assessments, fees and other governmental charges upon
      Holdings and its Subsidiaries and upon their respective properties, assets,
      income, businesses and franchises which are due and payable have been paid
      when
      due and payable except those (a) which are not overdue by more than thirty
      (30)
      days or (b) which are being contested by Holdings or such Subsidiary in good
      faith and by appropriate proceedings or (c) with respect to which the failure
      to
      make such filings or payment could not reasonably be expected to have a Material
      Adverse Effect.

     

    4.12  Title
      to Properties; Real Property

     

    Company
      and its Subsidiaries have, subject to Permitted Liens, (a)
      good,
      sufficient and legal title to (in the case of fee interests in real property);
      (b)
      valid
      leasehold interests in (in the case of leasehold interests in real or owned
      personal property); and (c)
      good
      title to (in the case of all other personal property), all of their respective
      properties and assets except for defects in title that do not materially
      interfere with its ability to conduct its business or to utilize such assets
      for
      their intended purposes or where failure to have such title in the aggregate
      could not reasonably be expected to have a Material Adverse Effect. As of the
      Effective Date, Schedule 4.12
      contains
      a true, accurate and complete list of all (i)
      fee
      interests of any Credit Party in real property, and (ii)
      all
      leases or subleases (together with all amendments, modifications, supplements,
      renewals or extensions of any thereof) affecting or comprising each real
      property asset of any Credit Party, regardless of whether such Credit Party
      is
      the landlord or tenant (whether directly or as an assignee or successor in
      interest) under such lease or sublease (other than leases or subleases
      pertaining to the Retail Business). Except as specified in Schedule 4.12,
      as of
      the Effective Date, (x) each agreement listed in clause (ii) of the immediately
      preceding sentence is in full force and effect, (y) Company does not have
      knowledge of any default that has occurred and is continuing thereunder, and
      (z)
      each such agreement constitutes the legally valid and binding obligation of
      each
      applicable Credit Party, enforceable against such Credit 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 in each case, except to the extent
      any of the foregoing could not reasonably be expected to have a Material Adverse
      Effect.

     

    
      
         

      

      
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    4.13  Collateral

     

    (a)   Except
      for the security
      interest created by the Collateral Documents, each Credit Party owns the
      Collateral owned by such Credit Party free and clear of any Lien other than
      Permitted Liens. (b)
      The
      execution and delivery of the Collateral Documents by the Credit Parties,
      together with (i)
      the
      actions taken on or prior to the Closing Date pursuant to Section 3
      and
Section 5
      of the
      Original Credit Agreement and (ii)
      the
      delivery to Collateral Agent of any Pledged Collateral not delivered to
      Collateral Agent at the time of execution and delivery of the applicable
      Collateral Document (all of which Pledged Collateral has been so delivered
      in
      accordance with the requirements of the applicable Collateral Documents) are
      effective to create in favor of Collateral Agent for the benefit of the Secured
      Parties, as security for the respective Secured Obligations (as defined in
      the
      applicable Collateral Document in respect of any Collateral), a valid and
      perfected First Priority Lien on all of the Collateral, and all filings and
      other actions necessary or desirable to perfect and maintain the perfection
      and
      First Priority Lien status of such Liens have been duly made or taken and remain
      in full force and effect, other than the filing of any UCC financing statements
      and other filings contemplated to be made on the Effective Date which have
      been
      delivered to Collateral Agent for filing (but not yet filed), the filing of
      any
      Mortgages, the periodic filing of UCC continuation statements in respect of
      UCC
      financing statements filed by or on behalf of Collateral Agent and the entering
      into of any deposit account and securities account control agreements.
(c)
      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 Credit Party of the Liens purported to be created in
      favor of Collateral Agent, for the benefit of Secured Parties, pursuant to
      any
      of the Collateral Documents or (ii)
      the
      exercise by Collateral Agent of any rights or remedies in respect of any
      Collateral (whether specifically granted or created pursuant to any of the
      Collateral Documents or created or provided for by applicable law), except
      for
      filings or recordings contemplated by this Section 4.13
      and
      except for consents referred to in Sections 4.4
      and
4.5
      and
      except as may be required, in connection with the disposition of any Pledged
      Collateral, by laws generally affecting the offering and sale of securities
      and
      except as may be required in connection with the foreclosure of any Mortgage.
      (d)
      Except
      such as may have been filed in favor of Collateral Agent, for the benefit of
      Secured Parties, as contemplated by this Section 4.13
      or have
      been filed in connection with Permitted Liens, (i)
      no
      effective UCC financing statement, fixture filing or other instrument similar
      in
      effect covering all or any part of the Collateral is on file in any filing
      or
      recording office and (ii)
      no
      effective filing covering all or any part of the Collateral which is
      Intellectual Property is on file in the United States Patent and Trademark
      Office or the United States Copyright Office or any similar foreign or state
      office. 

     

    4.14  Environmental

     

    Neither
      Holdings nor any of its Subsidiaries nor any of their respective Facilities
      or
      operations are subject to any outstanding written order, consent decree or
      settlement agreement with any Person relating to (a)
      any
      Environmental Law, (b)
      any
      Environmental Claim, or (c)
      any
      Hazardous Materials Activity that, individually or in the aggregate, could
      reasonably be expected to have a Material Adverse Effect. Neither Holdings
      nor
      any of its Subsidiaries has received any letter or request for information
      under
      Section 104 of the Comprehensive Environmental Response, Compensation, and
      Liability Act (42 U.S.C. § 9604) or any comparable state law which could
      reasonably be expected to have a Material Adverse Effect. There are and, to
      Company’s knowledge, have been no conditions, occurrences, or Hazardous
      Materials Activities which could reasonably be expected to form the basis of
      an
      Environmental Claim against Holdings or any of its Subsidiaries that,
      individually or in the aggregate, could reasonably be expected to have a
      Material Adverse Effect. Neither Holdings nor any of its Subsidiaries nor,
      to
      Company’s knowledge, any predecessor of Holdings or any of its Subsidiaries has
      treated, stored or disposed of any hazardous waste at any Facility, and none
      of
      Holdings’ or any of its Subsidiaries’ operations involves the treatment, storage
      or disposal of hazardous waste that, in each case, would require a permit under
      RCRA. Compliance with all current or reasonably foreseeable future requirements
      pursuant to or under Environmental Laws will not, individually or in the
      aggregate, have a reasonable possibility of giving rise to a Material Adverse
      Effect. Notwithstanding anything in this Section 4.14
      to the
      contrary, no event or condition has occurred or is occurring with respect to
      Holdings or any of its Subsidiaries relating to any Environmental Law, any
      Release of Hazardous Materials, or any Hazardous Materials Activity which
      individually or in the aggregate has had or could reasonably be expected to
      have
      a Material Adverse Effect.

     

    
      
         

      

      
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    4.15  No
      Defaults

     

    Neither
      Holdings nor any of its Subsidiaries is in default in the performance,
      observance or fulfillment of any of the obligations, covenants or conditions
      contained in any of its Contractual Obligations, and no condition exists that,
      with the giving of notice or the lapse of time or both, would constitute such
      a
      default, except, in either case, where the consequences, direct or indirect,
      of
      such default or defaults, if any, could not be reasonably be expected to have
      a
      Material Adverse Effect. 

     

    4.16  Governmental
      Regulation

     

    Neither
      Holdings nor any of its Subsidiaries is subject to regulation under the Public
      Utility Holding Company Act of 1935, the Federal Power Act or the Investment
      Company Act of 1940 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.

     

    4.17  Margin
      Stock

     

    Neither
      Holdings nor any of its Subsidiaries is engaged principally, or as one of its
      important activities, in the business of extending credit for the purpose of
      purchasing or carrying any Margin Stock. No part of the proceeds of the Loans
      made to such Credit Party will be used to purchase or carry any such Margin
      Stock or to extend credit to others for the purpose of purchasing or carrying
      any such Margin Stock or for any purpose that violates, or is inconsistent
      with,
      the provisions of Regulation T, U or X of the Board of Governors of the Federal
      Reserve System.

     

    4.18  Employee
      Matters

     

    There
      is
      no strike or work stoppage in existence or threatened involving Holdings or
      any
      of its Subsidiaries that could reasonably be expected to have a Material Adverse
      Effect.

     

    4.19  Employee
      Benefit Plans

     

    Company,
      each of its Subsidiaries and each of their respective ERISA Affiliates are
      in
      compliance with all applicable provisions and requirements of ERISA and the
      regulations and published interpretations thereunder with respect to each
      Employee Benefit Plan, and have performed in all material respects all their
      obligations under each Employee Benefit Plan, except for such noncompliance
      which, individually or in the aggregate, could not reasonably be expected to
      have a Material Adverse Effect. Each Employee Benefit Plan which is intended
      to
      qualify under Section 401(a) of the Internal Revenue Code is so qualified or
      will be qualified by admission of such Plan for an IRS determination in a timely
      fashion, if not already submitted, and the timely making of such amendments
      as
      may be required as a condition for issuance of a favorable determination. No
      ERISA Event has occurred or as of the date hereof is reasonable expected to
      occur where such Event individually or in the aggregate would have a Material
      Adverse Effect. As of the most recent valuation date for any Pension Plan,
      any
      amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of
      ERISA “Unfunded
      Benefit Liabilities”),
      individually or in the aggregate for all Pension Plans (except for purposes
      of
      such computation any Pension Plans with respect to which assets exceed benefit
      liabilities), could not reasonably be expected to have a Material Adverse
      Effect. Neither Company, its Subsidiaries nor their respective ERISA Affiliates
      has completely or partially withdrawn from any Multiemployer Plan, or incurred
      termination liability to the PBGC or withdrawal liability to any Multiemployer
      Plan. As of the most recent valuation date for each Multiemployer Plan for
      which
      the actuarial report is available, the potential liability of Company, its
      Subsidiaries and their respective ERISA Affiliates for a complete withdrawal
      from such Multiemployer Plan (within the meaning of Section 4203 of ERISA),
      when
      aggregated with such potential liability for a complete withdrawal from all
      Multiemployer Plans, based on information available pursuant to Section 4221(e)
      of ERISA, could not reasonably be expected to have a Material Adverse
      Effect.

     

    
      
         

      

      
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    4.20  [Reserved]

     

    4.21  Solvency

     

    Each
      Credit Party is and, upon the incurrence of any Obligation by such Credit Party
      on any date on which this representation and warranty is made, will be,
      Solvent.

     

    4.22  Certain
      Related Agreements

     

    Holdings
      and Company have delivered to the Administrative Agent complete and correct
      copies of the
      Stock
      Purchase Agreement and the Management Agreement and, in each case, of all
      exhibits and schedules thereto as of the Closing Date.

     

    4.23  [Reserved]

     

     

    4.24  Disclosure

     

    No
      written information, reports, financial statements, certificates or exhibits
      (other than any Projections) furnished to Lenders by or on behalf of Company
      or
      any of its Subsidiaries for use in connection with the transactions contemplated
      hereby, when taken as a whole, contained any untrue statement of a material
      fact
      or omitted to state a material fact (known to Company, in the case of any
      document not furnished by it) necessary in order to make the statements
      contained herein or therein not materially misleading in light of the
      circumstances in which the same were made. Any projections and pro forma
      financial information (collectively, the “Projections”)
      contained in such materials are based upon good faith estimates and assumptions
      believed by Company to be reasonable at the time made, it being recognized
      by
      Lenders that such Projections as to future events are not to be viewed as facts
      and that actual results during the period or periods covered by any such
      projections may differ from the projected results. There are no facts known
      to
      Company (other than matters of a general economic nature) that, individually
      or
      in the aggregate, could reasonably be expected to result in a Material Adverse
      Effect and that have not been disclosed herein or in such other documents,
      certificates and statements furnished to Lenders for use in connection with
      the
      transactions contemplated hereby.

     

    4.25  Intellectual
      Property

     

    Each
      of
      the Credit Parties owns or has the valid right to use all Intellectual Property
      free and clear of any and all Liens other than Permitted Liens. All
      registrations therefor are in full force and effect and are valid and
      enforceable, except as could not be expected to have a Material Adverse Effect.
      To each Credit Party’s knowledge, the conduct of the business of each Credit
      Party as currently conducted, including, but not limited to, all products,
      processes, or services, made, offered or sold by each such Credit Party, does
      not infringe upon, violate, misappropriate or dilute any intellectual property
      of any third party which infringement is likely to have a Material Adverse
      Effect. To the Credit Parties’ knowledge, no third party is infringing upon the
      Intellectual Property in any manner which could reasonably be expected to have
      a
      Material Adverse Effect. There is no pending or, to each Credit Party’s
      knowledge, threatened claim or litigation contesting any Credit Party’s right to
      own or use any Intellectual Property or the validity or enforceability thereof
      which could reasonably be expected to have a Material Adverse Effect.


     

    
      
         

      

      
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    4.26  Patriot
      Act

     

    To
      the
      extent applicable, each Credit Party is in compliance, in all material respects,
      with the (i) Trading with the Enemy Act, as amended, and each of the foreign
      assets control regulations of the Untied States Treasury Department (31 CFR,
      Subtitle B, Chapter V, as amended) and any other enabling legislation or
      executive order relating thereto, and (ii) Uniting and Strengthening
      America by Providing Appropriate Tools Required to Intercept and Obstruct
      Terrorism (USA Patriot Act of 2001). No part of the proceeds of the Loans will
      be used, directly or indirectly, for any payments to any governmental official
      or employee, political party, official of a political party, candidate for
      political office, or anyone else acting in an official capacity, in order to
      obtain, retain or direct business or obtain any improper advantage, in violation
      of the United States Foreign Corrupt Practices Act of 1977, as amended.


     

    SECTION
      5.   AFFIRMATIVE
      COVENANTS

     

    Until
      the
      Termination Date has occurred, each of Holdings and Company shall, and shall
      (except in the case of the covenants set forth in Section 5.1)
      cause
      each Subsidiary to:

     

    5.1  Financial
      Statements and Other Reports

     

    Company
      will deliver to Administrative Agent for further distribution (and which
      Administrative Agent shall promptly distribute) to each Lender, in form and
      detail reasonably satisfactory to Administrative Agent:

     

    (a)  as
      soon
      as available and in any event within twenty-five (25) days after the end of
      each
      of the first two (2) months of each Fiscal Quarter ending after the Effective
      Date (such reports, the “Monthly
      Reports”),
      (i)
      the
      consolidated balance sheet of Company and its Subsidiaries as at the end of
      such
      month and the related consolidated statements of income, stockholders’ equity
      and cash flows of Company and its Subsidiaries for such month and (ii)
      for the
      period from the beginning of the then current Fiscal Year to the end of such
      month, setting forth beginning with the monthly financial statements for fiscal
      year 2005, in each case in comparative form the corresponding figures for the
      corresponding periods of the previous Fiscal Year, all in reasonable detail,
      together with a CFO Certification and an MD&A with respect to each of the
      foregoing; provided,
      during
      any period in which the Leverage Ratio as of the last day of the immediately
      preceding Fiscal Quarter (determined for any such period by reference to the
      most recent Compliance Certificate delivered pursuant to Section 5.1(d)
      calculating the Leverage Ratio) is 4.50:1.00 or less, Company shall not be
      required to deliver any Monthly Reports required by this Section 5.1(a)
      for such
      period;

     

    (b)  as
      soon
      as available and in any event within forty-five (45) days after the end of
      the
      first three (3) Fiscal Quarters of each Fiscal Year, the consolidated balance
      sheet of Company and its Subsidiaries as at the end of such Fiscal Quarter
      and
      the related consolidated statements of income, stockholders’ equity and cash
      flows of Company and its 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, setting forth in each case in comparative form the corresponding
      figures for the corresponding periods of the previous Fiscal Year and the
      corresponding figures from the Financial Plan for the current Fiscal Year,
      all
      in reasonable detail, together with (i)
      a
      quarterly accounts receivable exposure report for such Fiscal Quarter in the
      form prepared by management of Company in the ordinary course of business and
      (ii)
      a CFO
      Certification and an MD&A with respect thereto;

     

    
      
         

      

      
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    (c)  as
      soon
      as available and in any event within ninety (90) days after the end of each
      Fiscal Year, (i)
      the
      consolidated balance sheet of Company and its Subsidiaries as at the end of
      such
      Fiscal Year and the related consolidated statements of income, stockholders’
equity and cash flows of Company and its Subsidiaries for such Fiscal Year,
      setting forth in each case in comparative form the corresponding figures for
      the
      previous Fiscal Year and the corresponding figures from the Financial Plan
      for
      the Fiscal Year covered by such financial statements, in reasonable detail,
      together with a CFO Certification and an MD&A with respect thereto; and
(ii) in
      the case of such consolidated financial statements, a report thereon of
      PricewaterhouseCoopers LLP or other independent certified public accountants
      of
      recognized national standing selected by Company and in form and substance
      reasonably satisfactory to Administrative Agent;

     

    (d)  together
      with each delivery of financial statements of Company and its Subsidiaries
      pursuant to Sections 5.1(b)
      and
5.1(c),
      a duly
      executed and completed Compliance Certificate;

     

    (e)  (i)
      if, as a
      result of any change in accounting principles and policies from those used
      in
      the preparation of the Historical Financial Statements, the consolidated
      financial statements of Company and its Subsidiaries delivered pursuant to
      Section 5.1(a),
      5.1(b)
      or
5.1(c)
      will
      differ in any material respect from the consolidated financial statements that
      would have been delivered pursuant to such subdivisions had no such change
      in
      accounting principles and policies been made, then together with the first
      delivery of such financial statements after such change, one or more statements
      of reconciliation for all such prior financial statements in form and substance
      satisfactory to Administrative Agent; and (ii)
      promptly
      upon receipt thereof (unless restricted by applicable professional standards),
      copies of all final management letters submitted to Company by independent
      certified public accountants in connection with each annual, interim or special
      audit of the financial statements of Company and its Subsidiaries made by such
      accountants, including any comment letter submitted by such accountants to
      management in connection with their annual audit;

     

    (f)  together
      with each delivery of consolidated financial statements of Company and its
      Subsidiaries pursuant to Section 5.1(c),
      a
      written statement by the independent certified public accountants giving the
      report thereon stating (i)
      that
      their audit examination has included a review of the terms of the Credit
      Documents, (ii)
      whether,
      in connection therewith, any condition or event that constitutes an Event of
      Default with regard to any of the Financial Performance Covenants has come
      to
      their attention and, if such a condition or event has come to their attention,
      specifying the nature and period of existence thereof, it being understood
      that
      such audit examination was directed primarily at accounting matters; and
(iii)
      that
      nothing has come to their attention that causes them to believe either or both
      that the information contained in any Compliance Certificate is not correct
      or
      that the matters set forth in such Compliance Certificate are not stated in
      accordance with the terms hereof;

     

    (g)  promptly
      upon their becoming available, copies of (i)
      all
      financial statements, reports, notices and proxy statements sent or made
      available generally by Company to its public security holders in such capacity
      or by any Subsidiary of Company to its security holders other than Company
      or
      another Subsidiary of Company, and (ii)
      all
      regular and periodic reports and all registration statements (other than on
      Form
      S-8 or a similar form) and prospectuses, if any, filed by Company or any of
      its
      Subsidiaries with any securities exchange or with the Securities and Exchange
      Commission or any governmental or private regulatory authority;

     

    
      
         

      

      
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    (h)  promptly
      upon any Responsible Officer obtaining knowledge (i)
      of any
      condition or event that constitutes a Default or an Event of Default or that
      notice has been given to Company with respect thereto; (ii)
      that any
      Person has given any notice to Company or any of its Subsidiaries or taken
      any
      other action with respect to any event or condition set forth in Section 8.1(b);
      or
(iii)
      of the
      occurrence of any event or change that has caused or evidences, either in any
      case or in the aggregate, a Material Adverse Effect, a certificate of its
      Authorized Officers specifying the nature and period of existence of such
      condition, event or change, or specifying the notice given or action taken
      by
      any such Person and the nature of such claimed Event of Default, Default,
      default, event or condition, and what action Company has taken, is taking and
      proposes to take with respect thereto;

     

    (i)  promptly
      upon any Responsible Officer obtaining knowledge of (i)
      the
      institution of, or any written threat of, any Adverse Proceeding not previously
      disclosed in writing by Company to Lenders, or (ii)
      any
      material development in any Adverse Proceeding that, in the case of either
      (i)
      or (ii) is reasonably likely to give rise to a Material Adverse Effect, or
      seeks
      to enjoin or otherwise prevent the consummation of, or to recover any damages
      or
      obtain relief as a result of, the transactions contemplated hereby, written
      notice thereof together with such other information as may be reasonably
      available to Company to enable Lenders and their counsel to evaluate such
      matters;

     

    (j)  (i)
      promptly
      but in any event within twenty (20) days after Company, any of its Subsidiaries
      or any of its ERISA Affiliates knows, or has reason to know, that (1)
      any
      ERISA Event with respect to an Employee Benefit Plan has occurred or will occur,
      or (2)
      Company,
      any of its Subsidiaries or any of their respective ERISA Affiliates has applied
      for a waiver of the minimum funding standard under Section 412 of the Code
      or
      Section 302 of ERISA, or (3)
      the
      aggregate present value of the Unfunded Benefit Liabilities under all Pension
      Plans has in any year increased by to an amount in excess of $1,000,000, or
      (4)
      any
      ERISA Event occurs with respect to a Multiemployer Plan which presents a
      material risk of a partial or complete withdrawal (as described in Section
      4203
      or 4205 of ERISA) by Company, any of its Subsidiaries or any of their respective
      ERISA Affiliates from a Multiemployer Plan and such withdrawal is reasonably
      expected to trigger withdrawal liability payments in any year in excess of
      $5,000,000, or (5) Company,
      any of its Subsidiaries or any of their respective ERISA Affiliates is in
“default” (as defined in Section 4219(c)(5) of ERISA) with respect to payments
      to a Multiemployer Plan, or (6)
      the
      potential withdrawal liability (as determined in accordance with Title IV of
      ERISA) of Company, any of its Subsidiaries and their respective ERISA Affiliates
      with respect to all Multiemployer Plans has in any year increased to an amount
      in excess of $5,000,000, or (7)
      there is
      an action brought against Company, any of its Subsidiaries or any of their
      respective ERISA Affiliates under Section 502 of ERISA with respect to its
      failure to comply with Section 515 of ERISA, a certificate of the president
      or
      chief financial officer of Company setting forth the details of each of the
      events described in clauses (1) through (7) above as applicable and the action
      which Company, any of its Subsidiaries or their respective ERISA Affiliates
      proposes to take with respect thereto, together with a copy of any notice or
      filing from the PBGC or which may be required by the PBGC or other agency of
      the
      United States government with respect to each of the events described in clauses
      (1) through (7) above, as applicable;

     

    
      
         

      

      
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    (ii)  As
      soon
      as possible and in any event within ten (10) Business Days after the receipt
      by
      the Company (or to the knowledge of the Company, after receipt by any of its
      Subsidiaries or any of their respective ERISA Affiliates) of a demand letter
      from the PBGC notifying the Company, its Subsidiaries or their respective ERISA
      Affiliates of its decision finding liability, a copy of such letter, together
      with a certificate of the president or chief financial officer of the Company
      setting forth the action which the Company, its Subsidiaries or their respective
      ERISA Affiliates proposes to take with respect thereto;

     

    (k)  as
      soon
      as practicable and in any event no later than sixty (60) days after the
      beginning of each Fiscal Year, a consolidated plan and financial forecast for
      such Fiscal Year (a “Financial
      Plan”),
      including (i)
      a
      forecasted consolidated balance sheet and forecasted consolidated statements
      of
      income and cash flows of Company and its Subsidiaries for such Fiscal Year,
      together with an explanation of the assumptions on which such forecasts are
      based, (ii)
      forecasted consolidated statements of income and cash flows of Company and
      its
      Subsidiaries for each month of each Fiscal Year, together with an explanation
      of
      the assumptions on which such forecasts are based, and (iii)
      such
      other information and projections as any Lender may reasonably
      request;

     

    (l)  with
      reasonable promptness, copies of any material amendment, restatement, supplement
      or other modification to or waiver of the Stock Purchase Agreement and the
      Management Agreement entered into after the date hereof;

     

    (m)  in
      the
      event that (y)
      Credit
      Party acquires rights in Collateral that requires delivery of a Pledge
      Supplement (as such term is defined in the Pledge & Security Agreement)
      pursuant to Sections 4.2(b)(i),
      4.3(c),
      4.4.1(a)(i),
      4.6(b),
      4.7(b)
      and
4.8(b)
      of the
      Pledge & Security Agreement, then Company shall deliver to the Collateral
      Agent such Pledge Supplement, within twenty-five (25) days after the end of
      any
      month in which such Collateral was acquired; and (z)
      any
      Credit Party changes its name, type of organization or jurisdiction of
      organization, it shall comply with the requirements set forth in Section 4.1(b)
      of the
      Pledge and Security Agreement;

     

    (n)  with
      reasonable promptness, such other information and data with respect to Company
      or any of its Subsidiaries as from time to time may be reasonably requested
      by
      any Lender (through the Administrative Agent); 

     

    (o)  Electronic
      Delivery.
      Documents required to be delivered pursuant to clauses (b),
      (c)
      and
(g)
      of this
Section
      5.1
      (to the
      extent any such documents are included in materials otherwise filed with the
      SEC) may be delivered electronically and, if so delivered, shall be deemed
      to
      have been delivered on the date (i) on which Company or Parent posts such
      documents, or provides a link thereto at website www.simmons.com or (ii) on
      which such documents are posted on Company’s or Parent’s behalf on Intralinks®,
      SyndTrak or other relevant website to which each Lender and the Administrative
      Agent have access (whether a commercial, third-party website or whether
      sponsored by the Administrative Agent) (the “Platform”);
      and


     

    
      
         

      

      
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    (p)  Certification
      of Public Information.
      Concurrently with the delivery of any document or notice required to be
      delivered pursuant to this Section 5.1, Company shall indicate in writing
      whether such document or notice contains Nonpublic Information. Any document
      or
      notice required to be delivered pursuant to this Section 5.1 shall be deemed
      to
      contain Nonpublic Information unless Company specifies otherwise. Company and
      each Lender acknowledges that certain of the Lenders may be “public-side”
Lenders (Lenders that do not wish to receive material non-public information
      with respect to Holdings or its Subsidiaries or their securities) and, if
      documents or notices required to be delivered pursuant to this Section 5.1
      or
      otherwise are being distributed through the Platform,
      any
      document or notice that contains Nonpublic Information (or is deemed to contain
      Nonpublic Information) shall not be posted on that portion of the Platform
      designated for such public side Lenders.

     

    5.2  Legal
      Existence, etc.

     

    Except
      as
      permitted under Section 6.7,
      each
      Credit Party will, and will cause each of its Subsidiaries to, at all times
      preserve and keep in full force and effect its legal existence and all rights
      and franchises material to its business; provided,
      that
      neither any Credit Party nor any of its Subsidiaries shall be required to
      preserve any such right or franchise if the preservation thereof is no longer
      desirable in the conduct of the business of such Credit Party or such
      Subsidiary, as the case may be, and that the loss thereof is not disadvantageous
      in any material respect to such Credit Party, such Subsidiary or
      Lenders.

     

    5.3  Payment
      of Taxes and Claims

     

    Each
      Credit Party will, and will cause each of its Subsidiaries to, pay all taxes,
      assessments and other governmental charges imposed upon it or any of its
      properties or assets or in respect of any of its income, businesses or
      franchises before any penalty accrues thereon, and all claims (including claims
      for labor, services, materials and supplies) for sums that have become due
      and
      payable and that by law have or may become a Lien upon any of its properties
      or
      assets, prior to the time when any penalty or fine shall be incurred with
      respect thereto; provided,
      no such
      charge or claim need be paid (a)
      unless
      the failure to pay the same could reasonably be expected to have a Material
      Adverse Effect or (b)
      if it is
      being contested in good faith by appropriate proceedings so long as (i)
      such
      reserve or other appropriate provision, if any, as shall be required in
      conformity with GAAP shall have been made therefor, and (ii)
      in the
      case of a charge or claim which has or may become a Lien against any of the
      Collateral, such contest proceedings conclusively operate to stay the sale
      of
      any portion of the Collateral to satisfy such charge or claim. Company will
      not,
      nor will it permit any of its Subsidiaries to, file or consent to the filing
      of
      any consolidated, combined or unitary income tax return with any Person (other
      than Parent, Holdings or any of Company’s Subsidiaries).

     

    5.4  Maintenance
      of Properties

     

    Each
      Credit Party will, and will cause each of its Subsidiaries to, maintain or
      cause
      to be maintained in good repair, working order and condition, ordinary wear
      and
      tear and casualty and condemnation excepted, all material properties used or
      useful in the business of Company and its Subsidiaries and from time to time
      during its useful life will make or cause to be made all appropriate maintenance
      payments, repairs, renewals and replacements thereof in accordance with prudent
      industry practice.

     

    
      
         

      

      
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    5.5  Insurance

     

    Each
      Credit Party will and will cause its Subsidiaries to maintain or cause to be
      maintained, with financially sound and reputable insurers (including one or
      more
      Captive Insurance Subsidiaries), insurance with respect to liabilities, losses
      or damage in respect of the assets, properties and businesses of Company and
      its
      Subsidiary Guarantors as may customarily be carried or maintained under similar
      circumstances by Persons engaged in similar businesses, in each case in such
      amounts (giving effect to self-insurance), with such deductibles, covering
      such
      risks and otherwise on such terms and conditions as shall be customary for
      Persons similarly situated in the industry. Each such policy of insurance so
      insuring assets of any Credit Party shall (a)
      name
      Administrative Agent for the benefit of Lenders as an additional insured
      thereunder as its interests may appear and (b)
      in the
      case of each business interruption and casualty insurance policy, contain a
      loss
      payable clause or endorsement, satisfactory in form and substance to
      Administrative Agent, that names Administrative Agent for the benefit of Lenders
      as the loss payee thereunder for any covered loss in excess of $500,000 and
      provides for at least thirty (30) days prior written notice to Administrative
      Agent of any cancellation of such policy.

     

    5.6  Inspection
      Rights; Lender Meeting

     

    Each
      Credit Party will, and will cause each of its Subsidiaries to, permit any
      authorized representatives designated by any Lender to visit and inspect any
      of
      the properties of Company or of any of its Subsidiaries, to inspect, copy and
      take copies of extracts from its and their financial and accounting records,
      and
      to discuss its and their affairs, finances and accounts with its and their
      officers and independent public accountants (subject to reasonable requirements
      of confidentiality) (provided,
      Company
      may, if it so chooses, be present at or participate in any such discussion),
      all
      upon reasonable notice and at such reasonable times during normal business
      hours
      and as often as may reasonably be requested; provided,
      that
      excluding any such visits and inspections during the occurrence and continuation
      of an Event of Default, the Lenders shall not exercise such rights more often
      than two (2) times during any calendar year absent the existence of an Event
      of
      Default and only one (1) such time shall be at Company’s expense absent the
      existence of an Event of Default. Company will, upon the request of Agents
      or
      Requisite Lenders, participate in a meeting of Administrative Agent and Lenders
      once during each Fiscal Year or, during the continuance of any Default or Event
      of Default, as reasonably requested by the Agents or the Requisite Lenders,
      to
      be held at Company’s corporate offices (or at such other location as may be
      agreed to by Company and Administrative Agent) at such time as may be agreed
      to
      by Company and Administrative Agent.

     

    5.7  Compliance
      with Laws, Etc.

     

    Each
      Credit Party will comply, and shall cause each of its Subsidiaries and, within
      its control, shall use its commercially reasonable efforts to cause all other
      Persons, if any, on or occupying any Facilities to comply, with the requirements
      of all applicable laws, rules, regulations and orders of any governmental
      authority (including all Environmental Laws), noncompliance with which could
      reasonably be expected to cause, individually or in the aggregate, a Material
      Adverse Effect.

     

    
      
         

      

      
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    5.8  Environmental
      Matters

     

    (a)  Company
      agrees that Administrative Agent may, from time to time and in its reasonable
      discretion, (i)
      retain,
      at Company’s expense, an independent professional consultant to review any
      environmental audits, investigations, analyses and reports relating to Hazardous
      Materials prepared by or for Company which Administrative Agent has requested
      and which indicates conditions or circumstances which Administrative Agent
      reasonably believes may have a significant impact on the business and operations
      of Company or its Subsidiaries and (ii)
      in the
      event (a)
      Administrative Agent reasonably believes that Company has breached any
      representation, warranty or covenant contained in Section 4.10,
      Section 5.7
      (as each
      such section pertains to environmental matters) or Section 4.14
      or that
      there has been a material violation of Environmental Laws at any Facility or
      by
      Company or any of its Subsidiaries at any other location including the Linden,
      New Jersey site or (b)
      an Event
      of Default has occurred and is continuing and the repayment of any amount due
      hereunder has been accelerated, conduct its own investigation of any Facility
      or
      violation; provided
      that, in
      the case of any Facility leased by Company or any of its Subsidiaries, Company
      shall only be obligated to use its reasonable efforts to obtain permission
      for
      Administrative Agent’s professional consultant to conduct an investigation of
      such Facility. For purposes of conducting such a review and/or investigation,
      Company hereby grants to Administrative Agent and its agents, employees,
      consultants and contractors the right to enter into or onto any Facilities
      currently owned, leased, operated or used by Company or any of its Subsidiaries.
      Any such investigation of any Facility shall be conducted, unless otherwise
      agreed to by Company and Administrative Agent, during normal business hours,
      shall be subject to the terms and conditions of all applicable lease and
      lease-related documents and to the requirements of landlords and, to the extent
      reasonably practicable, shall be conducted so as not to interfere with the
      ongoing operations at such Facility or to cause any damage or loss to any
      property at such Facility. Administrative Agent and its agents, employees,
      consultants and contractors shall not perform any subsurface investigations
      of
      soil or ground water without the prior written authorization from Company,
      which
      authorization shall not be unreasonably withheld, and, in the case of a leased
      Facility, without the prior written authorization of the owner of such Facility.
      Company and Administrative Agent hereby acknowledge and agree that any report
      of
      any investigation conducted at the request of Administrative Agent pursuant
      to
      this Section 5.8
      will be
      obtained and shall be used by Administrative Agent and Lenders solely for the
      purposes of Lenders’ internal credit decisions, to monitor and police the Loans
      and to protect Lenders’ security interests, if any, created by the Credit
      Documents. Administrative Agent agrees to deliver a copy of any such report
      to
      Company with the understanding that Company acknowledges and agrees that
(x)
      it will
      indemnify and hold harmless Administrative Agent and each Lender from any costs,
      losses or liabilities relating to Company’s use of or reliance on such report,
(y)
      neither
      Administrative Agent nor any Lender makes any representation or warranty with
      respect to such report, and (z)
      by
      delivering such report to Company, neither Administrative Agent nor any Lender
      is requiring or recommending the implementation of any suggestions or
      recommendations contained in such report.

     

    
      
         

      

      
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    (b)  Company
      will deliver to Administrative Agent and Lenders: (i)
      as soon
      as practicable following receipt thereof, copies of all environmental audits,
      investigations, analyses and reports of any kind or character, whether prepared
      by personnel of Company or any of its Subsidiaries or by independent
      consultants, governmental authorities or any other Persons, with respect to
      significant environmental matters at any Facility which, individually or in
      the
      aggregate, could reasonably be expected to result in a Material Adverse Effect
      or with respect to any Environmental Claims which, individually or in the
      aggregate, could reasonably be expected to result in a Material Adverse Effect;
      (ii)
      promptly
      upon the occurrence thereof, written notice describing in reasonable detail
      (1)
      any
      Release required to be reported to any federal, state or local governmental
      or
      regulatory agency under any applicable Environmental Laws which could reasonably
      be expected to have a Material Adverse Effect, (2)
      any
      remedial action taken by Company or any other Person in response to (x)
      any
      Hazardous Materials Activities the existence of which has a reasonable
      possibility of resulting in one or more Environmental Claims having,
      individually or in the aggregate, a Material Adverse Effect, or (y)
      any
      Environmental Claims that, individually or in the aggregate, have a reasonable
      possibility of resulting in a Material Adverse Effect, and (3)
      Company’s discovery of any occurrence or condition on any real property
      adjoining or in the vicinity of any Facility that is reasonably likely to cause
      such Facility or any part thereof to be subject to any material restrictions
      on
      the ownership, occupancy, transferability or use thereof under any Environmental
      Laws; (iii)
      as soon
      as practicable following the sending or receipt thereof by Company or any of
      its
      Subsidiaries, a copy of any and all written communications of a material nature
      with respect to (1)
      any
      Environmental Claims that, individually or in the aggregate, have a reasonable
      possibility of giving rise to a Material Adverse Effect, (2)
      any
      Release required to be reported to any federal, state or local governmental
      or
      regulatory agency which could reasonably be expected to have a Material Adverse
      Effect, and (3)
      any
      request for information from any governmental agency that suggests such agency
      is investigating whether Company or any of its Subsidiaries may be potentially
      responsible for any Hazardous Materials Activity which could reasonably be
      expected to have a Material Adverse Effect; (iv)
      prompt
      written notice describing in reasonable detail (1)
      any
      proposed acquisition of stock, assets, or property by Company or any of its
      Subsidiaries that could reasonably be expected to (x)
      expose
      Company or any of its Subsidiaries to, or result in, Environmental Claims that
      could reasonably be expected to have, individually or in the aggregate, a
      Material Adverse Effect or (y)
      affect
      the ability of Company or any of its Subsidiaries to maintain in full force
      and
      effect all material Governmental Authorizations required under any Environmental
      Laws for their respective operations and (2)
      any
      proposed action to be taken by Company or any of its Subsidiaries to modify
      current operations in a manner that could reasonably be expected to subject
      Company or any of its Subsidiaries to any material additional obligations or
      requirements under any Environmental Laws that could reasonably be expected
      to
      have, individually or in the aggregate, a Material Adverse Effect; and
(v)
      with
      reasonable promptness, such other documents and information as from time to
      time
      may be reasonably requested by Administrative Agent in relation to any matters
      disclosed pursuant to this Section 5.8.

     

    
      
         

      

      
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    5.9  Subsidiaries

     

    In
      the
      event that any Domestic Subsidiary which was a Non-Guarantor Subsidiary ceases
      to be a Non-Guarantor Subsidiary or any Person becomes a Subsidiary of Company
      after the date hereof, Company will promptly notify Administrative Agent thereof
      and cause such Subsidiary to execute and deliver to Administrative Agent a
      Counterpart Agreement and to take all such further actions and execute all
      such
      further documents, instruments, agreements, opinions and certificates (including
      those comparable to those described in Section 3.1(b)
      and in
      the definition of Personal Property Collateral Documents) as may be necessary
      or, in the reasonable opinion of Administrative Agent, desirable to create
      in
      favor of Collateral Agent, for the benefit of Lenders, a valid and perfected
      First Priority Lien on substantially all of the personal assets of (and the
      equity Securities of) such Subsidiary required hereby and the other Credit
      Documents. With respect to each such Subsidiary, Company shall send to
      Administrative Agent written notice setting forth with respect to such Person
      (a)
      the date
      on which such Person became a Subsidiary of Company, and (b)
      all of
      the data required to be set forth in Schedule 4.1
      with
      respect to all Subsidiaries of Company. Notwithstanding the foregoing, Company
      shall not be required to deliver a Counterpart Agreement or any of the other
      documents described in this Section with respect to (w) any
      Domestic Subsidiary which is not a Material Subsidiary, (x)
      any
      Captive Insurance Subsidiary, (y)
      the
      Co-Op Subsidiary or (z)
      any
      Foreign Subsidiary; provided,
      however,
      that
      notwithstanding the foregoing at no time shall (i)
      the
      aggregate amount of consolidated revenues of the Non-Guarantor Subsidiaries
      (other than Persons referred to in clauses (x) through (z) above) for the most
      recent Fiscal Quarter account for more than 5% of the consolidated revenues
      of
      Company and its Subsidiaries for such Fiscal Quarter or (ii)
      the
      aggregate amount of consolidated assets owned by the Non-Guarantor Subsidiaries
      (other than Persons referred to in clauses (x) through (z) above) at the end
      of
      the most recent Fiscal Quarter account for more than 5% of the consolidated
      assets of Company and its Subsidiaries at the end of such Fiscal Quarter, and
      if
      either such case shall occur, Company shall immediately come into compliance
      with this Section 5.9
      by
      notifying Administrative Agent of the identity of a sufficient number of
      Non-Guarantor Subsidiaries who are Domestic Subsidiaries (who shall cease to
      be
      Non-Guarantor Subsidiaries) and causing such Domestic Subsidiaries to execute
      and deliver to Administrative Agent a Counterpart Agreement and to take all
      such
      further actions and execute all such further documents, instruments, agreements,
      opinions and certificates (including those comparable to those described in
      Section 3.1(b)
      and in
      the definition of Personal Property Collateral Documents) as may be necessary
      or, in the opinion of Administrative Agent, desirable to create in favor of
      Administrative Agent, for the benefit of Lenders, a valid and perfected First
      Priority Lien on substantially all of the personal assets of such Subsidiary
      required hereby and the other Credit Documents or (iii)
      with
      respect to any Foreign Subsidiary that is in existence on the Closing Date
      or
      hereafter acquired or formed, (x) more than 65% of the total outstanding voting
      capital stock of any Foreign Subsidiary, the equity Securities of which are
      held
      directly by a Credit Party, be required to be so pledged to secure the
      Obligations of any Credit Party and (y) any Foreign Subsidiary be required
      to
      pledge assets or provide guarantees under this Agreement or any other Credit
      Document.

     

    5.10  [Reserved]

     

    5.11  [Reserved]

     

    
      
         

      

      
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    5.12  Matters
      Relating to Additional Real Property Collateral

     

    (a)  From
      and
      after the Effective Date, except with respect to any Real Property Asset with
      a
      fair market value of less than $1,000,000 individually or $5,000,000 in the
      aggregate from the Closing Date to the applicable date of determination, in
      the
      event that (x)
      Company
      or any Subsidiary Guarantor acquires any fee interest in real property or
(y)
      at the
      time any Person becomes a Subsidiary Guarantor, such Person owns or holds any
      fee interest in real property, excluding any such Real Property Asset the
      encumbrancing of which requires the consent of any applicable third party or
      (in
      the case of clause (y) above) then-existing senior lienholder, where Company
      and
      its Subsidiaries are unable after reasonably commercial efforts to obtain such
      third party’s consent (any such non-excluded Real Property Asset described in
      the foregoing clause (x) or (y) being an “Additional
      Mortgaged Property”),
      Company or such Subsidiary Guarantor shall deliver to Collateral Agent, as
      soon
      as practicable after such Person acquires such Additional Mortgaged Property
      or
      becomes a Subsidiary Guarantor, as the case may be, the following: (i)
      a fully
      executed and notarized Mortgage in proper form for recording in all appropriate
      places in all applicable jurisdictions, encumbering the interest of such Credit
      Party in such Additional Mortgaged Property; (ii) (a)
      a
      favorable opinion of counsel to such Credit Party, in form and substance
      reasonably satisfactory to Collateral Agent and its counsel, as to the due
      authorization, execution and delivery by such Credit Party of such Mortgage
      and
      such other matters as Collateral Agent may reasonably request, and (b)
      if
      required by Collateral Agent, an opinion of counsel (which counsel shall be
      reasonably satisfactory to Collateral Agent) in the state in which such
      Additional Mortgaged Property is located with respect to the enforceability
      of
      the form of Mortgage to be recorded in such state and such other matters
      (including any matters governed by the laws of such state regarding personal
      property security interests in respect of any Collateral located on such
      Additional Mortgaged Property) as Collateral Agent may reasonably request,
      in
      each case in form and substance reasonably satisfactory to Collateral Agent;
      (iii) (a)
      if
      reasonably required by Collateral Agent, an ALTA mortgagee title insurance
      policy or an unconditional commitment therefor (an “Additional
      Mortgage Policy”)
      issued
      by the Title Company with respect to such Additional Mortgaged Property, in
      an
      amount reasonably satisfactory to Collateral Agent, taking into consideration
      the interest of the Credit Party in such Additional Mortgaged Property, insuring
      Collateral Agent against loss or damage due to title to such Additional
      Mortgaged Property being vested in a Person other than such Credit Party and
      assuring Collateral Agent that such Mortgage creates a valid and enforceable
      First Priority Lien on such Additional Mortgaged Property, subject only to
      the
      standard exceptions, which Additional Mortgage Policy (1)
      shall,
      to the extent available in such jurisdiction, include an endorsement for
      mechanics’ liens, for future advances under this Agreement and for any other
      matters reasonably requested by Collateral Agent and (2)
      shall
      provide for affirmative insurance and such reinsurance as Collateral Agent
      may
      reasonably request, all of the foregoing in form and substance reasonably
      satisfactory to Collateral Agent; and (b)
      evidence
      satisfactory to Collateral Agent that such Credit Party has (i)
      delivered to the Title Company all certificates and affidavits required by
      the
      Title Company in connection with the issuance of the Mortgage Policy and
(ii)
      paid to
      the Title Company or to the appropriate governmental authorities all expenses
      and premiums of the Title Company in connection with the issuance of the
      Additional Mortgage Policy and all recording and stamp taxes (including mortgage
      recording and intangible taxes) payable in connection with recording the
      Mortgage in the appropriate real estate records; (iv)
      if no
      Additional Mortgage Policy is required with respect to such Additional Mortgaged
      Property, a title report issued by the Title Company with respect thereto,
      dated
      not more than thirty (30) days prior to the date such Mortgage is to be recorded
      (or if not possible to obtain a title report dated less than thirty (30) days
      prior to such date, then dated as closely as possible prior to such date, but
      in
      no event more than sixty (60) days prior to such date) and satisfactory in
      form
      and substance to Collateral Agent; (v)
      copies
      of all recorded documents listed as exceptions to title or otherwise referred
      to
      in the Additional Mortgage Policy or title report delivered pursuant to clause
      (v) or (vi) above; and (vi)
      (a)
      evidence, which may be in the form of a certificate from an insurance broker
      or
      a municipal engineer, as to (1)
      whether
      such Additional Mortgaged Property is a Flood Hazard Property and (2)
      if so,
      whether the community in which such Flood Hazard Property is located is
      participating in the National Flood Insurance Program, (b)
      if such
      Additional Mortgaged Property is a Flood Hazard Property, such Credit Party’s
      written acknowledgement of receipt of written notification from Collateral
      Agent
(1)
      that
      such Additional Mortgaged Property is a Flood Hazard Property and (2)
      as to
      whether the community in which such Flood Hazard Property is located is
      participating in the National Flood Insurance Program, and (c)
      in the
      event such Additional Mortgaged Property is a Flood Hazard Property that is
      located in a community that participates in the National Flood Insurance
      Program, evidence that Company has obtained flood insurance in respect of such
      Flood Hazard Property to the extent required under the applicable regulations
      of
      the Board of Governors of the Federal Reserve System.

     

    
      
         

      

      
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    (b)  Company
      shall, and shall cause each of its Subsidiaries to, permit an independent real
      estate appraiser satisfactory to Collateral Agent, upon reasonable notice,
      to
      visit and inspect any Additional Mortgaged Property for the purpose of preparing
      an appraisal of such Additional Mortgaged Property satisfying the requirements
      of any applicable laws and regulations (in each case to the extent required
      under such laws and regulations as determined by Collateral Agent in its
      discretion).

     

    5.13  Further
      Assurances

     

    Each
      of
      Holdings and Company shall take, and cause each of its Subsidiaries to take,
      such actions as Collateral Agent may reasonably request from time to time
      (including, without limitation, the execution and delivery of guaranties,
      security agreements, pledge agreements, Mortgages, stock powers, financing
      statements and other documents, the filing or recording of any of the foregoing,
      title insurance with respect to any of the foregoing that relates to an interest
      in real property, and the delivery of stock certificates and other collateral
      with respect to which perfection is obtained by possession) to ensure that
      the
      Obligations are guarantied by Guarantors and are secured by substantially all
      of
      the assets of Holdings and the Credit Parties. In the event that any Credit
      Party creates a new Subsidiary, all of the equity Securities of such new
      Subsidiary shall, to the extent required by Section 5.9,
      be duly
      and validly pledged to Collateral Agent for the benefit of the Secured Parties
      pursuant to the Collateral Documents, subject to no other Liens. Notwithstanding
      the foregoing, the Collateral Agent shall not take a security interest in those
      assets as to which the Collateral Agent shall determine, in its reasonable
      discretion, that the cost of obtaining such Lien (including any mortgage, stamp,
      intangibles or other tax) are excessive in relation to the benefit to the
      Lenders of the security afforded thereby.

     

    SECTION
      6.   NEGATIVE
      COVENANTS

     

    Until
      the
      Termination Date has occurred, Holdings and Company shall not, nor shall they
      permit any of their Subsidiaries to, directly or indirectly:

     

    6.1  Indebtedness

     

    Create,
      incur, assume or guaranty, or otherwise become or remain directly or indirectly
      liable with respect to, any Indebtedness, except: 

     

    (a)  each
      of
      the Credit Parties may become and remain liable with respect to its respective
      Obligations;

     

    (b)  Company
      and its Subsidiaries, as applicable, may remain liable with respect to
      Indebtedness described in Schedule 6.1
      annexed
      hereto and any Permitted Refinancing Indebtedness in respect
      thereof;

     

    (c)  Permitted
      Subordinated Indebtedness incurred or issued in an aggregate amount not to
      exceed $25,000,000 in any Fiscal Year, unless the proceeds of such excess
      amounts are applied to prepay the Loans pursuant to Section
      2.13(c),
      and
      Permitted Refinancing Indebtedness in respect thereof (provided that the
      proceeds of such Permitted Refinancing Indebtedness in excess of the amount
      applied to repay or prepay such Indebtedness are likewise applied to prepay
      the
      Loans pursuant to Section 2.13(c));

     

    
      
         

      

      
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    (d)  Company
      and its Subsidiaries may become and remain liable with respect to Indebtedness
      under Capital Leases and purchase money Indebtedness; provided,
      that
      the aggregate amount of all Indebtedness outstanding under this clause (d)
      at
      any time shall not exceed $20,000,000;

     

    (e)  Indebtedness
      of (i)
      any
      Credit Party owing to any other Credit Party (other than Indebtedness owed
      to
      Holdings), (ii)
      any
      Subsidiary of Holdings which is not a Credit Party (1)
      to any
      other Subsidiary of Holdings which is not a Credit Party and (2)
      to any
      other Subsidiary of Holdings which is a Credit Party; provided,
      that
      any Indebtedness pursuant to this clause (2) shall have no scheduled
      amortization or payments of principal prior to the date that is six (6) months
      after the Tranche D Term Loan Maturity Date, (iii) any
      Credit Party to any Subsidiary of Holdings which is not a Credit Party in
      respect of an Investment permitted by Section 6.3(a)(iii);
      and
(iv)
      Holdings
      owed to any of its Subsidiaries in lieu of, and not in excess of the amount
      of
      Restricted Junior Payments to the extent permitted to be made to Holdings in
      accordance with Section 6.5;
      provided,
      that
      all such Indebtedness of any Credit Party pursuant to this clause (e) must
      be
      expressly subordinated to the Obligations on terms not materially less favorable
      than those set forth in the Senior Subordinated Notes;

     

    (f)  from
      and
      after the Holdings Merger Effective Date, Indebtedness of Parent under the
      Parent Notes and any Permitted Refinancing Indebtedness in respect
      thereof;

     

    (g)  [Reserved];

     

    (h)  Indebtedness
      incurred by Company with respect to the Senior Subordinated Notes and any
      Permitted Refinancing Indebtedness in respect thereof;

     

    (i)  (i)
      Indebtedness assumed in connection with Permitted Acquisitions (so long as
      such
      Indebtedness was not incurred in anticipation of any such Permitted
      Acquisitions), (ii)
      Indebtedness of newly acquired Subsidiaries acquired in such Permitted
      Acquisitions (so long as such Indebtedness was not incurred in anticipation
      of
      any such Permitted Acquisition); provided,
      that
      the aggregate amount of the Indebtedness incurred pursuant to clauses (i) and
      (ii) shall
      not
      exceed $25,000,000 in the aggregate at any time outstanding and Permitted
      Refinancing Indebtedness in respect thereof, and (iii)
      Indebtedness owed to the seller in any Permitted Acquisition constituting part
      of the purchase price thereof in an aggregate amount not to exceed $50,000,000
      at any time outstanding; provided
      that
      such Indebtedness permitted pursuant to this clause (iii) (1)
      does not
      provide for any prepayment or repayment of all or any portion of the principal
      thereof prior to the date of the final scheduled installment of principal of
      any
      of the Loans, (2)
      is
      subordinated in right of payment to the Obligations and (3)
      upon the
      assumption or incurrence of Indebtedness permitted pursuant to this clause
      (iii), Company and its Subsidiaries will be in compliance with the covenants
      set
      forth in Section 6.6
      on a Pro
      Forma Basis as of the most recent Fiscal Quarter ended, after giving effect
      to
      such Permitted Acquisition and the assumption or incurrence of such Indebtedness
      in connection therewith;

     

    
      
         

      

      
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    (j)  Indebtedness
      of Company and its Subsidiaries in connection with workmen’s compensation
      obligations and insurance premiums of Company and its Subsidiaries;

     

    (k)  Holdings
      and its Subsidiaries may incur and permit to remain outstanding Indebtedness
      (other than for borrowed money) subject to Liens permitted by Section
      6.2;

     

    (l)  Indebtedness
      of Holdings and its Subsidiaries representing deferred compensation to employees
      of Holdings and its Subsidiaries;

     

    (m)  Indebtedness
      incurred by Holdings and its Subsidiaries to current or former directors,
      officers and employees, their respective estates, spouses or former spouses
      to
      finance the purchase or redemption of Capital Stock of Parent or Holdings
      permitted by Section 6.5;

     

    (n)  Indebtedness
      incurred by Holdings or its Subsidiaries in a Permitted Acquisition or an Asset
      Sale with respect to the adjustment of the purchase price or similar
      adjustments;

     

    (o)  Indebtedness
      of Holdings or its Subsidiaries in respect of netting services, overdraft
      protection and similar arrangements in each case in connection with deposit
      accounts;

     

    (p)  unsecured
      Indebtedness of Holdings (and any Permitted Refinancing Indebtedness in respect
      thereof) that (i)
      is not
      supported by any Contingent Obligations of or Liens granted by Company or any
      of
      its Subsidiaries, (ii)
      will not
      mature prior to the date that is six (6) months after the Tranche D Term Loan
      Maturity Date, (iii)
      does not
      permit any payments in cash in respect of the principal thereof for at least
      five (5) years from the date of the issuance of incurrence thereof, and
(iv)
      has
      mandatory prepayment, repurchase or redemption, covenant, default and remedy
      provisions customary for senior discount notes of an issuer that is the parent
      of a borrower under senior secured credit facilities, and in any event not
      materially more restrictive than those contained in the Senior Subordinated
      Note
      Indenture, taken as a whole (the “Holdco
      Notes”);
      provided,
      that an
      Authorized Officer of Company shall deliver to Administrative Agent an officer’s
      certificate demonstrating (w)
      both
      before and after giving effect to the incurrence of such Indebtedness and the
      application of proceeds thereof, no Default or Event of Default shall have
      occurred and be continuing; (x)
      Company
      and its Subsidiaries will be in compliance on a Pro Forma Basis with the
      covenants set forth in Section 6.6
      as of
      the most recently ended Fiscal Quarter, (y)
      the
      Total Leverage Ratio and the Leverage Ratio determined on a Pro Forma Basis
      as
      of the most recent Fiscal Quarter ended shall be less than 6.75:1.00 and
      5.50:1.00 respectively, and (z) the
      ratings on the Loans shall be at least equal to the rating on the Loans received
      by Company from Moody’s on the Closing Date, in the case of each of clauses (x)
      through (z) above, after giving effect to the incurrence of such Indebtedness
      and the application of the proceeds thereof; provided,
      further,
      that
      proceeds of such Indebtedness shall be applied by Holdings to refinance such
      Debt or make Investments and/or Restricted Junior Payments to the extent
      permitted by Section 6.3
      and
Section
      6.5,
      respectively;

     

    (q)  Company
      and its Subsidiaries may become and remain liable with respect to Contingent
      Obligations under Hedge Agreements permitted hereunder;

     

    
      
         

      

      
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    (r)  Indebtedness
      constituting Contingent Obligations if the incurrence of the primary obligation
      is otherwise permitted by this Section 6.1
      (other
      than Contingent Obligations by Company and its Subsidiaries with respect to
      Indebtedness of Holdings);

     

    (s)  Company
      and its Subsidiaries may become and remain liable with respect to repurchase
      obligations with respect to the Floor Plan Sales; 

     

    (t)  Foreign
      Subsidiaries may become and remain liable with respect to Indebtedness in an
      aggregate principal amount at any time outstanding not exceeding $30,000,000;
      and

     

    (u)  Indebtedness
      of Company and its Subsidiaries not otherwise permitted by this Section 6.1
      in an
      aggregate principal amount at any time outstanding not exceeding
      $40,000,000.

     

    6.2  Liens

     

    Create,
      incur, assume or permit to exist any Lien on or with respect to any property
      or
      asset of any kind, whether now owned or hereafter acquired, or file or authorize
      the filing of, any financing statement under the UCC of any State or under
      any
      similar recording or notice statute, except: 

     

    (a)  Permitted
      Encumbrances;

     

    (b)  Liens
      described in Schedule 6.2
      annexed
      hereto and modifications, replacements, renewals or extensions thereof;
provided,
      that
      (i) the Lien does not extend to any additional property other than (A)
      after-acquired property that is affixed to or incorporated in the property
      covered by such Lien or financed by Indebtedness permitted under Section 6.1(d)
      and (B)
      the proceeds and products thereof and (ii) the modification, replacement,
      renewal or extension of the obligations secured or benefited by such Liens
      is
      permitted by Section 6.1;

     

    (c)  purchase
      money Liens (including mortgages, conditional sales, Capital Leases and any
      other title retention or deferred purchase devices) in real or tangible personal
      property of Company or any of its Subsidiaries existing or created at the time
      of acquisition thereof or, in the case of tangible and personal property, within
      sixty (60) days thereafter, or in the case of real property, within one hundred
      twenty (120) days thereafter and the modification, refinancing, refunding,
      renewal or extension of any such Liens; provided,
      that
      the Indebtedness secured by or benefited by such Lien is permitted by
Section 6.1
      hereof;

     

    (d)  Liens
      granted pursuant to the Credit Documents;

     

    (e)  Liens
      on
      property of any of Company’s Foreign Subsidiaries created solely for the purpose
      of securing Indebtedness of any Foreign Subsidiary permitted by Section 6.1;

     

    (f)  Liens
      on
      property of Company or any of its Subsidiaries created solely for the purpose
      of
      securing Indebtedness permitted by Section 6.1(i)(i)
      or (ii)
      and the
      proviso to such clauses (so long as such Lien was not incurred in anticipation
      of the related acquisition); provided
      that no
      such Lien incurred in connection with such Indebtedness shall extend to or
      cover
      other property of Company or such Subsidiary other than the respective property
      so acquired and the proceeds and the products thereof;

     

    
      
         

      

      
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    (g)  Liens
      on
      documents of title and the property covered thereby securing Indebtedness in
      respect of commercial letters of credit;

     

    (h)  Liens
      (i)
      on cash
      advances in favor of the seller of any property to be acquired in an Investment
      permitted by Section
      6.3
      to be
      applied against the purchase price thereof and (ii)
      consisting of a definitive agreement to dispose of property in an Asset Sale
      permitted under Section
      6.7;

     

    (i)  Liens
      arising out of conditional sale, title retention, consignment or similar
      arrangements for the sale of goods entered into by Company and its Subsidiaries
      in the ordinary course of business and permitted hereby;

     

    (j)  Liens
      deemed to exist in connection with Investments in repurchase agreements
      permitted under Section
      6.3;

     

    (k)  Liens
      in
      connection with workmen’s compensation obligations and general liability
      exposure of Company and its Subsidiaries; and

     

    (l)  Liens
      on
      assets of Company and its Subsidiaries not otherwise permitted under this
Section 6.2,
      securing Indebtedness or other obligations in an aggregate principal amount
      at
      any time outstanding not in excess of $40,000,000.

     

    Except
      with respect to (a) this Agreement, (b) specific property encumbered to secure
      payment of particular Indebtedness or to be sold pursuant to an executed
      agreement with respect to an Asset Sale, (c) the agreements entered into with
      Net Jet Sales, Inc. for the purchase of fractional interests in a corporate
      jet
      by Company, (d) customary restrictions contained in leases, subleases, licenses
      and sublicenses permitted hereunder and (e) documents evidencing any
      Indebtedness permitted by Section 6.1,
      no
      Credit Party nor any of its Subsidiaries shall enter into any agreement
      prohibiting the creation or assumption of any Lien upon any of its properties
      or
      assets, whether now owned or hereafter acquired to secure the
      Obligations.

     

    6.3  Investments

     

    Make
      or
      own any Investment in any Person, including any Joint Venture,
      except:

     

    (a)  Investments
      by (i)
      Holdings
      or any of its Subsidiaries in any Credit Party (but, in the case of Investments
      by a Credit Party in Holdings only to the extent set forth in Section 6.1(e)),
      including any new Subsidiary which becomes a Credit Party pursuant to
Section 5.9,
      (ii)
      by any
      Subsidiary of Holdings which is not a Credit Party (1)
      in
      any
      other Subsidiary of Holdings that is also not a Credit Party and (2)
      in any
      Subsidiary of Holdings that is a Credit Party, and (iii)
      Holdings
      and the other Credit Parties in any Subsidiary of Holdings that is not a Credit
      Party in an aggregate amount pursuant to this clause (iii) not to exceed
      $30,000,000 at any one time outstanding (net of any dividends or distributions,
      or prepayments or payments of interest by such Subsidiaries);

     

    (b)  Investments
      existing on the Effective Date and set forth on Schedule 6.3
      and any
      modification, replacement, renewal or extension thereof; provided
      that the
      amount of the original Investment is not increased except by the terms of such
      Investment or as otherwise permitted by this Section 6.3;
      

     

    
      
         

      

      
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    (c)  Company
      and its Subsidiaries may make and own Investments in Cash
      Equivalents;

     

    (d)  Company
      and its Subsidiaries may make Consolidated Capital Expenditures permitted
      hereunder;

     

    (e)  Holdings
      and its Subsidiaries may acquire the Securities of any Person or a line of
      business or division of, or all or substantially all of the business, property
      or assets of any Person the Cash consideration for which constitutes
      $100,000,000 in the aggregate from the Closing Date to the date of
      determination; provided
      that
(i)
      Company
      shall give Administrative Agent at least five (5) days’ notice of the proposed
      transaction, (ii)
      Company
      and its Subsidiaries shall have beneficial ownership of all of the equity
      Securities of the Person acquired and shall comply with the provisions of
Section 5.9,
      (iii)
      any
      business acquired shall be located in the United States or if located outside
      of
      the United States and acquired by a Foreign Subsidiary, such Investment shall
      be
      made in compliance with the provisions of this Section 6.3
      with
      respect to Investments in Foreign Subsidiaries and, unless the Leverage Ratio
      determined on a Pro Forma Basis as of the most recent Fiscal Quarter ended,
      is
      less than 5.00:1.00 at the time of such acquisition all acquisitions of Foreign
      Subsidiaries, foreign properties and foreign assets shall together not exceed
      $50,000,000 in the aggregate from the Closing Date to the date of determination,
      (iv)
      Company
      shall deliver a certificate of an Authorized Officer to Administrative Agent
      and
      Lenders in form and substance reasonably satisfactory to Administrative Agent,
      together with the related financial statements, demonstrating in reasonable
      detail that, after giving effect to the acquisition of such Person or such
      business, property or assets (including any Indebtedness incurred or assumed
      therein), Company and its Subsidiaries are otherwise in compliance on a Pro
      Forma Basis with the covenants set forth in Section 6.6
      and
(v)
      both
      before and after giving effect to the consummation of such acquisition, no
      Default or Event of Default shall exist;

     

    (f)  Holdings
      and its Subsidiaries may make loans and advances to directors, officers and
      employees of Parent and its Subsidiaries in an aggregate amount not to exceed
      $5,000,000 outstanding at any time; 

     

    (g)  Company
      and its Subsidiaries may make and own Investments consisting of notes and other
      non-Cash consideration received in connection with any Asset Sale permitted
      by
Section 6.7(k), (o)
      and
(p);

     

    (h)  Company
      and its Subsidiaries may make and own Investments received in connection with
      the bankruptcy or reorganization of suppliers and customers and in settlement
      of
      delinquent obligations of, and other disputes with, suppliers and customers
      arising in the ordinary course of business and upon the foreclosure with respect
      to any secured Investment or other transfer of title with respect to a secured
      Investment; 

     

    (i)  Company
      and its Subsidiaries may make and own Investments in Subsidiaries created and
      operated as a captive insurance company (the “Captive
      Insurance Subsidiary”)
      in an
      aggregate amount not to exceed $10,000,000 (net of any dividends or
      distributions, or prepayments or payments of interest by the Captive Insurance
      Subsidiary to Company or any of its Subsidiary Guarantors); 

     

    
      
         

      

      
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    (j)  Investments
      constituting Indebtedness permitted to be incurred under Sections 6.1,
      6.2,
      6.5
      and
6.7;

     

    (k)  Investments
      in Hedge Agreements permitted hereunder;

     

    (l)  [Reserved];

     

    (m)  Investments
      in the ordinary course of business consisting of (i) endorsements for collection
      or deposit and (ii) customary trade arrangements with customers;

     

    (n)  loans
      and
      advances to Holdings (and by Holdings to Parent) in lieu of, and not in excess
      of the amount of (after giving effect to any other loans, advances, or
      Restricted Junior Payments in respect thereof) Restricted Junior Payments to
      the
      extent permitted to be made to Holdings (and by Holdings to Parent) in
      accordance with Section 6.5;

     

    (o)  Holdings
      may repurchase Holdings’ Securities to the extent permitted by Section 6.5;

     

    (p)  Investments
      in Co-Op Subsidiary in an amount not to exceed $30,000,000 in the aggregate
      from
      the Closing Date to the date of determination; and

     

    (q)  Holdings
      and its Subsidiaries may make and own other Investments not otherwise permitted
      under this Section 6.3
      in an
      aggregate principal at any time outstanding not exceeding $75,000,000;
provided
      that if
      such Investment is consummated by Holdings, Holdings shall, immediately
      following the closing thereof, cause the assets or Securities acquired to be
      contributed to Company or its Subsidiaries or the merger of Company or its
      Subsidiaries with the Person formed to consummate or acquire such Investment;
      provided,
      further,
      that
      such amount may be increased by an additional $25,000,000 at such time as the
      Leverage Ratio is less than 4.50:1.00.

     

    In
      addition to the Investments permitted pursuant to this Section 6.3,
      Holdings and its Subsidiaries may make additional Investments (which shall
      not
      be counted in the limitations set forth above) as follows: Investments
      consisting of (i)
      the
      reinvestment of the proceeds of issuances of Securities by Holdings not required
      to prepay Loans pursuant to Section 2.13(b)
      (other
      than Permitted Cure Securities) or used to make Restricted Junior Payments,
      (ii)
      the
      reinvestment of that portion of Consolidated Excess Cash Flow not required
      to be
      used to make prepayments pursuant to Section 2.13(d)
      and
(iii)
      the
      proceeds received by Holdings in connection with any Indebtedness incurred
      by
      Holdings permitted pursuant to Section 6.1(p) less
      any
      proceeds of such Indebtedness that are applied to make Restricted Junior
      Payments permitted pursuant to Section 6.5(o);
      provided
      that, if
      such Investment is consummated by Holdings, Holdings shall, immediately
      following the closing thereof, cause the assets or Securities acquired to be
      contributed to Company or its Subsidiaries or the merger of Company or its
      Subsidiaries with the Person formed to consummate or acquire such Investment
      (other than any promissory note of Parent received by Holdings in connection
      with loans and advances by Holdings to Parent in lieu of, and not in excess
      of,
      the amount of (after giving effect to any other loans, advances or Restricted
      Junior Payments in respect thereof) Restricted Junior Payments to the extent
      permitted to be made by Holdings pursuant to Section 6.5).

     

    
      
         

      

      
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    6.4  [Reserved]

     

    6.5  Restricted
      Junior Payments

     

    Declare,
      order, pay, make or set apart any sum for any Restricted Junior Payment,
      except:

     

    (a)  each
      Subsidiary of Company may make Restricted Junior Payments to Company and to
      Subsidiaries of Company and, in the case of a Restricted Junior Payment by
      a
      non-wholly owned Subsidiary, to Company and any Subsidiary and to each other
      owner of Securities of such Subsidiary based on their relative ownership
      interests;

     

    (b)  Company
      and its Subsidiaries may make regularly scheduled payments of interest in
      respect of Subordinated Indebtedness, in each case in accordance with the terms
      of, and only to the extent required by, and subject to the subordination
      provisions contained in, the indenture or other agreement pursuant to which
      such
      Subordinated Indebtedness was issued, as such indenture or other agreement
      may
      be amended from time to time to the extent permitted under Section 6.11;
      

     

    (c)  Company
      may make Restricted Junior Payments to Holdings to permit the payment of
      Management Fees; provided
      that, at
      the time of such Restricted Junior Payment and immediately after giving effect
      thereto, no Event of Default shall have occurred and be continuing under
Section 8.1(a),
      8.1(f)
      and
8.1(g);
      provided,
      further
      that in
      the event such payment is prohibited by the preceding proviso, such Management
      Fees shall continue to accrue and all accrued but unpaid amounts shall be
      payable following the waiver of any such Event of Default;

     

    (d)  Company
      may make Restricted Junior Payments to Holdings, the proceeds of which will
      be
      used (i)
      to
      permit Holdings to pay (or to make a Restricted Junior Payment to Parent to
      enable it to pay) ordinary operating expenses (including, without limitation,
      directors’ fees, indemnification obligations, professional fees and expenses) in
      an aggregate amount not to exceed $2,000,000 in any Fiscal Year; (ii)
      by
      Holdings to pay (or to make a Restricted Junior Payment to Parent to enable
      it
      to pay) its tax liability for the relevant jurisdiction(s) in respect of
      consolidated, combined, unitary or affiliated returns for the relevant
      jurisdiction of Holdings or Parent, as applicable, determined as if Company
      and
      its Subsidiaries filed separate returns; and (iii) by Holdings to pay its (or
      to
      make a Restricted Junior Payment to Parent to enable it to pay its) franchise
      or
      similar taxes;

     

    (e)  Company
      may make Restricted Junior Payments to Holdings (and Holdings may make
      Restricted Junior Payments to Parent) to the extent required for Holdings to
      repurchase its capital stock from deceased or retired employees and from
      employees whose employment with Parent or any of its Subsidiaries has terminated
      for any other reason but only to the extent mandatorily required by the Internal
      Revenue Code or ERISA;

     

    
      
         

      

      
        95

        
          

        

      

      
         

      

    

    (f)  Company
      may make Restricted Junior Payments to Holdings to permit Holdings to repurchase
      its securities (or to make a Restricted Junior Payment to Parent to enable
      it to
      repurchase its Securities) from directors, officers, employees or members of
      management of Parent or any Subsidiary (or their estate, family members, spouse
      or former spouse); provided,
      that
(i)
      at the
      time of such Restricted Junior Payment and immediately after giving effect
      thereto, no Event of Default shall have occurred and be continuing and
(ii)
      the
      aggregate amount of Restricted Junior Payments made pursuant to this clause
      (f)
      in any Fiscal Year shall not exceed $3,000,000 plus
      the
      proceeds of any key-man life insurance maintained by Parent or its Subsidiaries
      and the proceeds of any sale of Securities to directors, officers, employees
      or
      members of management of Parent or any Subsidiary; provided,
      that
      Company may carry-over and make in any subsequent Fiscal Year or years, in
      addition to the amount for such Fiscal Year, the amount not utilized in the
      prior Fiscal Year or years up to a maximum of $12,000,000; provided,
      further
      that in
      the event Company or Holdings are not permitted to not make such Restricted
      Junior Payments in cash pursuant to this clause (f), Company may issue to
      Holdings (and Holdings may issue to Parent and Parent may issue to the holder
      of
      such Securities), as consideration for such repurchase, either (A) a promissory
      note payable to the holder of such Securities or (B) preferred equity Securities
      (which if issued by Holdings, such preferred stock shall otherwise be permitted
      by Section 6.11(c)),
      in
      each case for the balance of any repurchase price which is not permitted to
      be
      paid in cash, it being understood that no payment in cash may be permitted
      to be
      made by Company to Holdings (and by Holdings to Parent) in respect of any such
      promissory note or preferred equity Securities unless and until cash payments
      are again permitted pursuant to this Section 6.5(f);
      

     

    (g)  Company
      may make Restricted Junior Payments in respect of any repurchase, redemption
      or
      repayment of the Senior Subordinated Notes; provided,
      that
(x)
      at the
      time of such Restricted Junior Payment and immediately after giving effect
      thereto, no Event of Default shall have occurred and be continuing, and
(y)
      the
      aggregate amount of such Restricted Junior Payments made pursuant to this clause
      (g) shall not exceed $20,000,000; 

     

    (h)  Company
      may make Restricted Junior Payments to Holdings in order to allow Holdings
      to
      make cash payments of interest with respect to the Holdco Notes, and after
      the
      Holdings Merger Effective Date, the Parent Notes so long as (x)
      after
      giving effect to such Restricted Junior Payment, Company’s minimum interest
      coverage ratio is, on a Pro Forma Basis, 0.25% better than the minimum interest
      coverage ratio then required to be maintained pursuant to Section 6.6(a)
      and
(y)
      at the
      time of such Restricted Junior Payment and immediately after giving effect
      thereto, no Event of Default shall have occurred and be continuing;


     

    (i)  Company
      may make Restricted Junior Payments to Holdings to finance any Investment by
      Holdings to the extent permitted to be made pursuant to Section 6.3;
      provided,
      that
      such Restricted Junior Payment shall be made concurrently with the closing
      of
      such Investment;

     

    (j)  to
      the
      extent they constitute Restricted Junior Payments, Company and its Subsidiaries
      may enter into the transactions contemplated by Sections 6.7
      and
6.10;
      

     

    (k)  Holdings
      and its Subsidiaries may make repurchases of Securities deemed to occur upon
      the
      non-cash exercise of stock options and warrants;

     

    
      
         

      

      
        96

        
          

        

      

      
         

      

    

    (l)  [Reserved];

     

    (m)  Restricted
      Junior Payments to Holdings (and by Holdings to Parent), the proceeds of which
      will be used to make cash payments in lieu of issuing fractional shares of
      Holdings (or Parent) in an aggregate amount not to exceed $50,000;

     

    (n)  so
      long
      as no Default or Event of Default shall have occurred and be continuing or
      would
      be caused thereby, Company may make additional Restricted Junior Payments to
      Holdings, the proceeds of which may be utilized by Holdings to make additional
      Restricted Junior Payments, in an aggregate not to exceed 50%
      of
      the Consolidated Net Income for the period (taken as one accounting period)
      from
      the beginning of the first Fiscal Quarter commencing after the Closing Date
      to
      the end of most recently ended Fiscal Quarter for which internal consolidated
      financial statements of Company are available at the time of such Restricted
      Junior Payment (or, if such Consolidated Net Income for such period is a
      deficit, less 100% of such deficit) less
      the
      amount of any Restricted Junior Payments previously made pursuant to this
Section 6.5(n);
      provided,
      that
      notwithstanding the foregoing, until such time as the Leverage Ratio determined
      on a Pro Forma Basis is less than 5.00:1.00 at any date of determination, all
      such Restricted Junior Payments shall accumulate, but shall not be payable
      or
      paid; 

     

    (o)  in
      addition to the foregoing, Restricted Junior Payments, so long as no Default
      or
      Event of Default shall have occurred and be continuing or be caused thereby,
      Holdings may make additional Restricted Junior Payments with the proceeds of
      (y)
      the Holdco Notes less,
      any
      proceeds of such Indebtedness that are applied to make Investments permitted
      pursuant to Section 6.3
      and (z)
      with the proceeds of any issuances of Securities not required to prepay the
      Loans pursuant to Section 2.13(b)
      (other
      than Permitted Cure Securities) or used to make Investments; and

     

    (p)  in
      the
      event that the net proceeds of the Parent IPO are at least $125,000,000, Company
      may make Restricted Junior Payments funded with such net proceeds in respect
      of
      either (i) any repurchase, redemption or repayment of the Senior Subordinated
      Notes and/or (ii) any repurchase, redemption or repayment of any Holdco
      Notes or, from and after the Holdings Merger Effective Date, the Parent Notes;
      and

     

    Any
      Restricted Junior Payments by Company to Holdings permitted under this
Section 6.5
      shall be
      applied by Holdings for the purposes specified in this Section 6.5.

     

    
      
         

      

      
        97

        
          

        

      

      
         

      

    

    6.6  Financial
      Covenants

     

    (a)  Minimum
      Cash Interest Coverage Ratio.
      Permit
      the ratio of (i)
      Consolidated Adjusted EBITDA to (ii)
      Consolidated Cash Interest Expense for any four-Fiscal Quarter period ending
      on
      the dates set forth below to be less than the correlative ratio
      indicated

     

    
      	
              Four
                Fiscal Quarter Period Ending

            	
              Minimum
                Cash Interest Charge Coverage Ratio

            
	
              June
                30, 2006

            	
               

              1.85:1.00

            
	
              September
                30, 2006

            	
               

              1.85:1.00

            
	
              December
                31, 2006

            	
               

              1.85:1.00

            
	
              March
                31, 2007

            	
               

              2.00:1.00

            
	
              June
                30, 2007

            	
               

              2.15:100

            
	
              September
                30, 2007

            	
               

              2.15:100

            
	
              December
                31, 2007

            	
               

              2.25:100

            
	
              March
                31, 2008

            	
               

              2.75:1.00

            
	
              June
                30, 2008

            	
               

              2.75:1.00

            
	
              September
                30, 2008

            	
               

              2.75:1.00

            
	
              December
                31, 2008

            	
               

              2.75:1.00

            
	
              March
                31, 2009

            	
               

              3.00:1.00

            
	
              June
                30, 2009

            	
               

              3.00:1.00

            
	
              September
                30, 2009

            	
               

              3.00:1.00

            
	
              December
                31, 2009

              and
                each Fiscal Quarter ending thereafter

            	
               

              3.00:1.00

            


    

    


    
      
         

      

      
        98

        
          

        

      

      
         

      

    

    (b)  Maximum
      Leverage Ratio.
      Permit
      the Leverage Ratio as of the last day of any Fiscal Quarter ending on the dates
      set forth below to exceed the correlative ratio indicated:

     

    
      	
              Date

            	
              Maximum
                Leverage Ratio

            
	
              June
                30, 2006

            	
               

              6.25:1.00

            
	
              September
                30, 2006

            	
               

              6.15:1.00

            
	
              December
                31, 2006

            	
               

              5.90:1.00

            
	
              March
                31, 2007

            	
               

              5.60:1.00

            
	
              June
                30, 2007

            	
               

              5.25:100

            
	
              September
                30, 2007

            	
               

              5.00:100

            
	
              December
                31, 2007

            	
               

              5.00:100

            
	
              March
                31, 2008

            	
               

              4.50:1.00

            
	
              June
                30, 2008

            	
               

              4.50:1.00

            
	
              September
                30, 2008

            	
               

              4.50:1.00

            
	
              December
                31, 2008

            	
               

              4.50:1.00

            
	
              March
                31, 2009

            	
               

              4.00:1.00

            
	
              June
                30, 2009

            	
               

              4.00:1.00

            
	
              September
                30, 2009

            	
               

              4.00:1.00

            
	
              December
                31, 2009

              and
                each Fiscal Quarter ending thereafter

            	
               

              4.00:1.00

            


    

    


    (c)  Certain
      Calculations.
      With
      respect to any period during which a Permitted Acquisition or a PF Asset Sale
      has occurred, for purposes of determining compliance with the financial
      covenants set forth in this Section 6.6
      (but not
      for purposes of determining the Applicable Commitment Fee Percentage or the
      Applicable Margin), Consolidated Adjusted EBITDA shall be calculated with
      respect to such period on a Pro Forma Basis giving effect to such Permitted
      Acquisition or PF Asset Sale.

     

    6.7  Fundamental
      Changes; Asset Sales

     

    Except
      to
      the extent otherwise permitted under this Agreement, alter the corporate,
      capital or legal structure (except in a way that does not have a Material
      Adverse Effect) of Holdings, Company or any of its Subsidiaries, consummate
      any
      transaction of merger or consolidation, or liquidate, wind-up or dissolve itself
      (or suffer any liquidation or dissolution), or consummate any Asset Sale
      except:

     

    (a)  any
      Subsidiary of Company may be merged with or into Company or any Subsidiary
      of
      Company, or be liquidated, wound up or dissolved into, or all or any part of
      its
      business, property or assets may be conveyed, sold, leased, transferred or
      otherwise disposed of, in one transaction or a series of transactions, to
      Company or any Subsidiary of Company; provided
      that,
      (i) in the case of such a merger involving Company, Company shall be the
      continuing or surviving Person or the surviving Person shall be a Person
      organized under the laws of the United States of America and expressly assume
      the obligations of Company pursuant to documents reasonably acceptable to
      Administrative Agent, (ii) when any Guarantor is merging with any other
      Subsidiary (A) Guarantor shall be the surviving Person or (B) such transaction
      shall constitute an Investment which Investment must otherwise be permitted
      under Section 6.3
      and
      (iii) in the case of any Asset Sale, such assets shall be transferred to Company
      or its Subsidiaries or such transaction shall constitute an Investment which
      Investment must otherwise be permitted under Section 6.3;

     

    (b)  any
      Subsidiary may merge with any other Person in order to effect an Investment
      permitted under Section 6.3;
      provided
      that (i)
      the surviving Person shall be a Subsidiary which, to the extent required, shall
      have complied with Section 5.9
      or (ii)
      to the extent constituting an Investment, such Investment must otherwise be
      permitted under Section 6.3;

     

    (c)  any
      merger, consolidation, liquidation, wind-up or dissolution, the purpose of
      which
      is to effect a disposition otherwise permitted by this Section 6.7;

     

    (d)  inventory
      sold in the ordinary course of business; 

     

    
      
         

      

      
        99

        
          

        

      

      
         

      

    

    (e)  obsolete,
      worn out or surplus property sold in the ordinary course of business or,
      properties which are no longer useful or necessary in Company’s or its
      Subsidiaries’ business, whether now owned or hereafter acquired;

     

    (f)  property
      sold, transferred or disposed of, to the extent that (i)
      such
      property is exchanged for credit against the purchase price of similar
      replacement property or (ii)
      the
      proceeds of such property is promptly applied to the purchase price of such
      replacement property;

     

    (g)  sales
      and
      transfers permitted by Section 6.5
      with
      respect to issuances of Securities of Holdings;

     

    (h)  the
      sale,
      transfer or disposition of Cash Equivalents;

     

    (i)  the
      sale,
      transfer or disposition of accounts in connection with the collection or
      compromise thereof in the ordinary course of business;

     

    (j)  the
      licensing or sublicensing of Intellectual Property in the ordinary course of
      business on customary terms;

     

    (k)  Asset
      Sales by and among Company and its Subsidiaries in the ordinary course of
      business; provided,
      that
      with respect to any Asset Sale by a Credit Party to a Subsidiary of Company
      that
      is not a Credit Party, not less than 75% of the consideration received therefor
      shall be Cash;

     

    (l)  leases,
      subleases, licenses or sublicenses of property in the ordinary course of
      business and which do not materially interfere with the business of Holdings
      and
      its Subsidiaries;

     

    (m)  consignment
      or similar arrangements for the sale of assets in the ordinary course of
      business;

     

    (n)  Floor
      Plan Sales;

     

    (o)  Company
      and its Subsidiaries may make Asset Sales in any single Fiscal Year of assets
      that have, in the aggregate, a fair market value not in excess of $50,000,000;
      provided
      that (x)
      the consideration received for such assets shall be in an amount at least equal
      to the fair market value thereof; (y) not less than 75% of the consideration
      received therefor shall be Cash; and (z) the proceeds of such Asset Sales shall
      be applied as required by Section 2.13(a);

     

    (p)  In
      addition to the Asset Sales permitted pursuant to Section
      6.7(o) Company
      and its Subsidiaries may make Asset Sales with respect to the sale of the Retail
      Business; provided,
      that
      (x) the consideration received for such Asset Sale shall be in an amount at
      least equal to the fair market value thereof; (y) the consideration received
      therefor shall be consideration that is permitted to be received pursuant to
      the
      terms and provisions of the Senior Subordinated Note Indenture; and (z) the
      proceeds of such Asset Sales shall be applied as required by Section
      2.13(a);
      and

     

    
      
         

      

      
        100

        
          

        

      

      
         

      

    

    (q)  the
      Holdings Merger may be effected;
      provided
      that
      Parent shall (i) expressly assume the obligations of, and be subject to the
      terms and conditions applicable to, Holdings under and in connection with this
      Agreement and the other Credit Documents to the same extent as Holdings and
      (ii)
      create in favor of the Administrative Agent, for the benefit of Lenders, a
      valid
      and perfected first priority Lien in the Capital Stock of the Company, and
      take
      all such further action and execute all such further documents and instruments
      as may be reasonably requested by the Administrative Agent in connection
      therewith.

     

    6.8  Consolidated
      Capital Expenditures

     

    Make
      or
      incur Consolidated Capital Expenditures during any Fiscal Year in an aggregate
      amount in excess of (1) $30,000,000
      (as adjusted in accordance with the provisos hereto, the “Maximum
      Consolidated Capital Expenditures Amount”),
      plus (2) the
      amount of any Consolidated Capital Expenditures made or incurred during such
      Fiscal Year in connection with the construction and outfitting of one new
      production facility in the United States (provided
      that the
      amount of all Consolidated Capital Expenditures permitted by this clause (2)
      during the term of this Agreement shall not exceed $10,000,000 in the
      aggregate); provided
      that the
      Maximum Consolidated Capital Expenditures Amount for any such Fiscal Year shall
      be increased by an amount equal to the excess, if any, of the Maximum
      Consolidated Capital Expenditures Amount for the previous Fiscal Year (prior
      to
      adjustment in accordance with this proviso) over the actual amount of
      Consolidated Capital Expenditures for such previous Fiscal Year; provided,
      further,
      that
      the Maximum Consolidated Capital Expenditures Amount for each Fiscal Year shall
      be increased (1) with the proceeds of any issuances of Securities not required
      to prepay the Loans (other than Permitted Cure Securities) pursuant to
Section 2.13(b)
      received
      by Company or any of its Subsidiaries during such Fiscal Year or used to make
      Restricted Junior Payments; and (2) by that part of Consolidated Excess Cash
      Flow calculated for the immediately preceding Fiscal Year not required to be
      used to prepay the Loans pursuant to Section 2.13(d);
      provided,
      further,
      that
      the Maximum Consolidated Capital Expenditures Amount for any Fiscal Year shall
      be further increased upon the consummation of a Permitted Acquisition by an
      amount equal to 5% of the enterprise value of the assets acquired in connection
      with such Permitted Acquisition.

     

    6.9  Sales
      and Lease-Backs

     

    Become
      or
      remain liable as lessee with respect to any lease, entered into after the date
      hereof, whether an Operating Lease or a Capital Lease, of any property (whether
      real, personal or mixed), which Company or any of its Subsidiaries has sold
      or
      transferred or is to sell or to transfer to any other Person (other than Company
      or any of its Subsidiaries) (a “Permitted
      Sale Lease-Back Transaction”);
      provided,
      Company
      and its Subsidiaries may become and remain liable as lessee with respect to
      any
      such lease if and to the extent that Company or any of its Subsidiaries would
      be
      otherwise permitted to enter into (or not otherwise be prohibited from), and
      remain liable under, such lease hereunder; provided,
      further (i)
      the
      aggregate amount of all such Permitted Sale/Lease-Back Transactions consummated
      after the date hereof shall not exceed $20,000,000 at any time outstanding
      and
(ii)
      the
      proceeds of such Permitted Sale Lease-Back Transaction shall be applied as
      required by Section 2.13(a).

     

    6.10  Transactions
      with Shareholders and Affiliates

     

    Enter
      into or permit to exist any transaction (including the purchase, sale, lease
      or
      exchange of any property or the rendering of any service) with any Affiliate
      of
      Company, on terms that are less favorable to Company or that Subsidiary, as
      the
      case may be, than those that might be obtained at the time from Persons who
      are
      not such an Affiliate; provided,
      the
      foregoing restriction shall not apply, subject to the other covenants contained
      hereunder, (a)
      to any
      transaction between Parent and any of its Subsidiaries or between any of its
      Subsidiaries, (b)
      to the
      payment of reasonable and customary fees paid to members of the Boards of
      Directors of Parent and its Subsidiaries and reimbursement of reasonable
      out-of-pocket expenses of directors, (c)
      to the
      payment of Management Fees, (d)
      to the
      consummation of the transactions contemplated by the Related Agreements and
      the
      payment of Transaction Costs, and
      (e)
      in
      respect of employment and severance arrangements with directors, officers,
      employees and members of management of Parent or any of its Subsidiaries in
      the
      ordinary course of business, (f)
      transactions between Holdings and any of its Subsidiaries with Co-Op Subsidiary
      or any Captive Insurance Subsidiary and (g)
      the
      transactions by Parent and its Subsidiaries to the extent permitted under this
      Section 6.

     

    
      
         

      

      
        101

        
          

        

      

      
         

      

    

    6.11  Amendments
      or Waivers of Certain Documents

     

    (a)  Amendments
      of Organizational Documents, and Management Agreement. (i) Amend
      any
      of the organizational or constituent documents of any Credit Party in a manner
      materially adverse to the Administrative Agent or the Lenders; and (ii)
      amend,
      modify or supplement the Management Agreement or waive or otherwise consent
      to
      any change or departure from any of the terms or conditions of the Management
      Agreement, in each case, in any manner that increases the fees or other amounts
      payable thereunder.

     

    (b)  Amendments
      of Documents Relating to Subordinated Indebtedness.
      Amend
      or otherwise change the redemption, prepayment, repurchase or defeasance
      provisions of any Subordinated Indebtedness, change the subordination provisions
      thereof (or of any guaranty thereof), or amend or change any other term if
      the
      effect of such amendment or change, together with all other amendments or
      changes made, is to increase materially the obligations of the obligor
      thereunder or to confer any additional rights on the holders of such
      Subordinated Indebtedness (or trustee or other representative on their behalf)
      which would be materially adverse to Company or Lenders (other than the
      execution and delivery by Holdings and/or any of its Subsidiaries of a
      supplemental agreement pursuant to which such Subsidiary becomes a guarantor
      thereunder so long as such Subsidiary is also a Guarantor
      hereunder).

     

    (c)  Amendments
      of Documents Relating to Holdings Indebtedness.
      Amend
      or otherwise change the redemption, prepayment, repurchase, defeasance,
      covenant, default or remedy provisions of the Holdco Notes or, from and after
      the Holdings Merger Effective Date, the Parent Notes (or any Permitted
      Refinancing Indebtedness in respect thereof), or amend or change any other
      term
      if the effect of such amendment or change, together with all other amendments
      or
      changes made, is to increase materially the obligations of the obligor
      thereunder or to confer any additional rights on the holders of such
      Indebtedness (or trustee or other representative on their behalf) that would
      be
      materially adverse to Company or Lenders.

     

    (d)  Preferred
      Stock.
      Without
      the prior written approval of Requisite Lenders, issue any preferred stock
      or
      permit any of its Subsidiaries to issue any preferred stock; provided,
      however,
      that
      Holdings or Company shall be permitted to issue preferred stock which does
      not
      provide for any payment or redemption with respect thereto prior to the date
      of
      the final payment in full in Cash of all of the non-contingent Obligations
      under
      this Agreement, provided
      that
      immediately prior to and immediately after the issuance of such preferred stock
      no Event of Default or Default under Section 8.1(k)
      shall
      have occurred and be continuing.

     

    
      
         

      

      
        102

        
          

        

      

      
         

      

    

    6.12  Conduct
      of Company Business

     

    .
      From
      and after the Closing Date, Company shall not, nor shall it permit any of its
      Subsidiaries to, engage in any business other than the businesses engaged in
      by
      Company and its Subsidiaries on the Closing Date and any businesses reasonably
      related or ancillary thereto. 

     

    6.13  Special
      Covenants of Holdings

     

    From
      and
      after the Closing Date, Holdings shall:

     

    (a)  engage
      in
      no business or activities other than (i)
      owning
      100% of the issued and outstanding capital stock of Company, (ii)
      holding
      Cash and Cash Equivalents, (iii)
      activities incidental thereto, (iv)
      as
      otherwise required by mandatory provisions of law, (v)
      the
      transactions contemplated by the Related Agreements, (vi)
      entering
      into the Related Agreements to which it is a party, and
      (vii)
      as
      otherwise specifically permitted hereunder; and 

     

    (b)  not
      own
      or acquire any assets other than (i)
      100% of
      the issued and outstanding equity Securities of Company and (ii)
      as
      specifically permitted hereunder.

     

    6.14  Fiscal
      Year

     

    Change
      its Fiscal Year-end from the final Saturday in the calendar year, provided,
      however,
      that
      Company may change its Fiscal Year-end to December 31.

     

    6.15  Securities
      of Company and Subsidiaries; Restrictions on
      Subsidiaries

     

    (a)  Create,
      incur, assume or suffer to exist any Lien on any equity Securities of Company
      (other than non-consensual Liens arising solely by operation of law) and the
      Liens contemplated by the Credit Documents.

     

    (b)  Create
      or
      otherwise cause or suffer to exist or become effective any consensual
      encumbrance or restriction of any kind on the ability of any such Subsidiary
      to
(w)
      pay
      dividends or make any other distributions on any of such Subsidiary’s equity
      Securities owned by Company or any other Subsidiary of Company, (x)
      repay or
      prepay any Indebtedness owed by such Subsidiary to Company or any other
      Subsidiary of Company, (y)
      make
      loans or advances to Company or any other Subsidiary of Company, or (z)
      transfer
      any of its property or assets to Company or any other Subsidiary of Company
      except for any agreement (A) in effect on the Closing Date, (B) in existence
      at
      the time a Subsidiary becomes a Subsidiary of Company so long as such agreement
      was not entered into solely in contemplation of such Person becoming a
      Subsidiary, (C) in existence at the time any assets were acquired by Company
      or
      any Subsidiary of Company so long as such agreement was not entered into solely
      in contemplation of the acquisition of such assets, (D) representing
      Indebtedness which is permitted by Section 6.1;
      (E) in
      connection with any Asset Sale or other sale of assets permitted hereunder,
      or
      (F) customary restrictions contained in leases, subleases, licenses and
      sublicenses permitted hereunder.

     

    6.16  Designated
      Senior Debt

     

    Designate
      any other Indebtedness of Company or any of its Subsidiaries as “Designated
      Senior Debt” (or any comparable term) under, and as defined in, the Senior
      Subordinated Note Indenture or any other applicable documentation governing
      Subordinated Indebtedness.

     

    
      
         

      

      
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    SECTION
      7.   GUARANTY

     

    7.1  Guaranty
      of the Obligations

     

    Subject
      to the provisions of Section 7.2,
      Guarantors jointly and severally hereby irrevocably and unconditionally guaranty
      the due and punctual payment in full of all Obligations (including Hedge
      Agreements) of Company when the same shall become due, whether at stated
      maturity, by required prepayment, declaration, acceleration, demand or
      otherwise, including amounts that would become due but for the operation of
      the
      automatic stay under Section 362(a) or any other provision of the Bankruptcy
      Code (the “Guaranteed
      Obligations”).

     

    7.2  Limitation
      on Amount Guarantied

     

    (a)   Anything
      contained herein to the
      contrary notwithstanding, if any Fraudulent Transfer Law (as hereinafter
      defined) is determined by a court of competent jurisdiction to be applicable
      to
      the obligations of any Guarantor hereunder, such obligations of such Guarantor
      hereunder shall be limited to a maximum aggregate amount equal to the largest
      amount that would not render its obligations hereunder subject to avoidance
      as a
      fraudulent transfer or conveyance under Section 548 of Title 11 of the United
      States Code or any applicable provisions of comparable state law (collectively,
      the “Fraudulent
      Transfer Laws”),
      in
      each case after giving effect to all other liabilities of such Guarantor,
      contingent or otherwise, that are relevant under the Fraudulent Transfer Laws
      (specifically excluding, however, any liabilities of such Guarantor (x)
      in
      respect of intercompany indebtedness to Company or other affiliates of Company
      to the extent that such indebtedness would be discharged in an amount equal
      to
      the amount paid by such Guarantor hereunder and (y)
      under
      any
      guaranty of Subordinated Indebtedness which guaranty contains a limitation
      as to
      maximum amount similar to that set forth in this Section 7.2(a),
      pursuant to which the liability of such Guarantor hereunder is included in
      the
      liabilities taken into account in determining such maximum amount) and after
      giving effect as assets to the value (as determined under the applicable
      provisions of the Fraudulent Transfer Laws) of any rights to subrogation,
      reimbursement, indemnification or contribution of such Guarantor pursuant to
      applicable law or pursuant to the terms of any agreement (including any such
      right of contribution hereunder).

     

    (b)  Guarantors
      under this Guaranty, together desire to allocate among themselves, in a fair
      and
      equitable manner, their obligations arising under this Guaranty. Accordingly,
      in
      the event any payment or distribution is made on any date by any Guarantor
      under
      this Guaranty (a “Funding
      Guarantor”)
      that
      exceeds its Fair Share (as defined below) as of such date, that Funding
      Guarantor shall be entitled to a contribution from each of the other Guarantors
      in the amount of such other Guarantor’s Fair Share Shortfall (as defined below)
      as of such date, with the result that all such contributions will cause each
      Guarantor’s Aggregate Payments (as defined below) to equal its Fair Share as of
      such date. “Fair
      Share”
      means,
      with respect to a Guarantor as of any date of determination, an amount equal
      to
(i)
      the
      ratio of (x)
      the
      Adjusted Maximum Amount (as defined below) with respect to such Guarantor
      to
      (y)
      the
      aggregate of the Adjusted Maximum Amounts with respect to all Guarantors
      multiplied by
      (ii) the
      aggregate amount paid or distributed on or before such date by all Funding
      Guarantors under this Guaranty in respect of the obligations guarantied.
“Fair
      Share Shortfall”
      means,
      with respect to a Guarantor as of any date of determination, the excess, if
      any,
      of the Fair Share of such Guarantor over the Aggregate Payments of such
      Guarantor. “Adjusted
      Maximum Amount”
      means,
      with respect to a Guarantor as of any date of determination, the maximum
      aggregate amount of the obligations of such Guarantor under this Guaranty
      determined as of such date, in the case of any Guarantor, in accordance with
      Section 7.2(a);
      provided
      that,
      solely for purposes of calculating the “Adjusted Maximum Amount” with respect to
      any Guarantor for purposes of this Section 7.2(b),
      any
      assets or liabilities of such Guarantor arising by virtue of any rights to
      subrogation, reimbursement or indemnification or any rights to or obligations
      of
      contribution hereunder shall not be considered as assets or liabilities of
      such
      Guarantor. “Aggregate
      Payments” means,
      with respect to a Guarantor as of any date of determination, an amount equal
      to
(i)
      the
      aggregate amount of all payments and distributions made on or before such date
      by such Guarantor in respect of this Guaranty (including in respect of
      this Section 7.2(b))
      minus
(ii)
      the
      aggregate amount of all payments received on or before such date by such
      Guarantor from the other Guarantors as contributions under this Section 7.2(b).
      The
      amounts payable as contributions hereunder shall be determined as of the date
      on
      which the related payment or distribution is made by the applicable Funding
      Guarantor. The allocation among Guarantors of their obligations as set forth
      in
      this Section 7.2(b)
      shall
      not be construed in any way to limit the liability of any Guarantor
      hereunder.

     

    
      
         

      

      
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    7.3  Payment
      by Guarantors

     

    Subject
      to Section 7.2(a),
      Guarantors hereby jointly and severally agree, in furtherance of the foregoing
      and not in limitation of any other right which any Beneficiary may have at
      law
      or in equity against any Guarantor by virtue hereof, that upon the failure
      of
      Company to pay any of the Guaranteed Obligations when and as the same shall
      become due, whether at stated maturity, by required prepayment, declaration,
      acceleration, demand or otherwise (including amounts that would become due
      but
      for the operation of the automatic stay under Section 362(a) or any other
      provision of the Bankruptcy Code), Guarantors will upon demand pay, or cause
      to
      be paid, in Cash, to Administrative Agent for the ratable benefit of
      Beneficiaries, an amount equal to the sum of the unpaid principal amount of
      all
      Guaranteed Obligations then due as aforesaid, accrued and unpaid interest on
      such Guaranteed Obligations (including interest which, but for the filing of
      a
      petition in bankruptcy with respect to Company, would have accrued on such
      Guaranteed Obligations, whether or not a claim is allowed against Company for
      such interest in the related bankruptcy proceeding) and all other Guaranteed
      Obligations then owed to Beneficiaries as aforesaid.

     

    7.4  Liability
      of Guarantors Absolute

     

    Each
      Guarantor agrees that, to the maximum extent permitted by applicable law, its
      obligations hereunder are irrevocable, absolute, independent and unconditional,
      and constitute primary obligations of such Guarantor and not a contract of
      surety, and shall not be affected by any circumstance which constitutes a legal
      or equitable discharge of a guarantor or surety other than payment in full
      in
      Cash of the Guaranteed Obligations. In furtherance of the foregoing and without
      limiting the generality thereof, each Guarantor agrees that, to the maximum
      extent permitted by applicable law, 

     

    (a)  this
      Guaranty is a guaranty of payment when due and not of
      collectibility;

     

    (b)  the
      obligations of each Guarantor hereunder are independent of the obligations
      of
      Company and the obligations of any other guarantor (including any other
      Guarantor) of the obligations of Company, and a separate action or actions
      may
      be brought and prosecuted against such Guarantor whether or not any action
      is
      brought against Company or any of such other guarantors and whether or not
      Company is joined in any such action or actions;

     

    
      
         

      

      
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    (c)  payment
      by any Guarantor of a portion, but not all, of the Guaranteed Obligations shall
      in no way limit, affect, modify or abridge any Guarantor’s liability for any
      portion of the Guaranteed Obligations which has not been paid. Without limiting
      the generality of the foregoing, if Administrative Agent is awarded a judgment
      in any suit brought to enforce any Guarantor’s covenant to pay a portion of the
      Guaranteed Obligations, such judgment shall not be deemed to release such
      Guarantor from its covenant to pay the portion of the Guaranteed Obligations
      that is not the subject of such suit, and such judgment shall not, except to
      the
      extent satisfied by such Guarantor, limit, affect, modify or abridge any other
      Guarantor’s liability hereunder in respect of the Guaranteed
      Obligations;

     

    (d)  any
      Beneficiary, upon such terms as it deems appropriate, without notice or demand
      and without affecting the validity or enforceability hereof or giving rise
      to
      any reduction, limitation, impairment, discharge or termination of any
      Guarantor’s liability hereunder, from time to time may (i)
      renew,
      extend, accelerate, increase the rate of interest on, or otherwise change the
      time, place, manner or terms of payment of the Guaranteed Obligations;
(ii)
      settle,
      compromise, release or discharge, or accept or refuse any offer of performance
      with respect to, or substitutions for, the Guaranteed Obligations or any
      agreement relating thereto and/or subordinate the payment of the same to the
      payment of any other obligations; (iii)
      request
      and accept other guaranties of the Guaranteed Obligations and take and hold
      security for the payment of this Guaranty or the Guaranteed Obligations;
(iv)
      release,
      surrender, exchange, substitute, compromise, settle, rescind, waive, alter,
      subordinate or modify, with or without consideration, any security for payment
      of the Guaranteed Obligations, any other guaranties of the Guaranteed
      Obligations, or any other obligation of any Person (including any other
      Guarantor) with respect to the Guaranteed Obligations (provided that no Credit
      Document to which such Guarantor is a party may be amended without its written
      consent); (v)
      enforce
      and apply any security now or hereafter held by or for the benefit of such
      Beneficiary in respect of this Guaranty or the Guaranteed Obligations and direct
      the order or manner of sale thereof, or exercise any other right or remedy
      that
      such Beneficiary may have against any such security, in each case as such
      Beneficiary in its discretion may determine consistent with this Agreement
      or
      the applicable Hedge Agreement and any applicable security agreement, including
      foreclosure on any such security pursuant to one or more judicial or nonjudicial
      sales, whether or not every aspect of any such sale is commercially reasonable,
      and even though such action operates to impair or extinguish any right of
      reimbursement or subrogation or other right or remedy of any Guarantor against
      Company or any security for the Guaranteed Obligations; and (vi)
      exercise
      any other rights available to it under the Credit Documents or the applicable
      Hedge Agreements; and

     

    
      
         

      

      
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    (e)  this
      Guaranty and the obligations of Guarantors hereunder shall be valid and
      enforceable and shall not be subject to any reduction, limitation, impairment,
      discharge or termination for any reason (other than payment in full in Cash
      of
      the Guaranteed Obligations), including the occurrence of any of the following,
      whether or not any Guarantor shall have had notice or knowledge of any of them:
      (i)
      any
      failure or omission to assert or enforce or agreement or election not to assert
      or enforce, or the stay or enjoining, by order of court, by operation of law
      or
      otherwise, of the exercise or enforcement of, any claim or demand or any right,
      power or remedy (whether arising under the Credit Documents or the Hedge
      Agreements, at law, in equity or otherwise) with respect to the Guaranteed
      Obligations or any agreement relating thereto, or with respect to any other
      guaranty of or security for the payment of the Guaranteed Obligations;
(ii)
      any
      rescission, waiver, amendment or modification of, or any consent to departure
      from, any of the terms or provisions (including provisions relating to events
      of
      default) of this Agreement, any of the other Credit Documents, any of the Hedge
      Agreements or any agreement or instrument executed pursuant thereto, or of
      any
      other guaranty or security for the Guaranteed Obligations, in each case whether
      or not in accordance with the terms of this Agreement or such Credit Document,
      such Hedge Agreement or any agreement relating to such other guaranty or
      security (provided that no Credit Document to which such Guarantor is a party
      may be amended without its written consent); (iii)
      the
      Guaranteed Obligations, or any agreement relating thereto, at any time being
      found to be illegal, invalid or unenforceable in any respect; (iv)
      the
      application of payments received from any source (other than payments received
      pursuant to the other Credit Documents or any of the Hedge Agreements or from
      the proceeds of any security for the Guaranteed Obligations, except to the
      extent such security also serves as collateral for indebtedness other than
      the
      Guaranteed Obligations) to the payment of indebtedness other than the Guaranteed
      Obligations, even though any Beneficiary might have elected to apply such
      payment to any part or all of the Guaranteed Obligations; (v)
      any
      Beneficiary’s consent to the change, reorganization or termination of the
      corporate structure or existence of Company or any of its Subsidiaries and
      to
      any corresponding restructuring of the Guaranteed Obligations; (vi)
      any
      failure to perfect or continue perfection of a security interest in any
      collateral which secures any of the Guaranteed Obligations; (vii)
      any
      defenses, set-offs or counterclaims which Company may allege or assert against
      any Beneficiary in respect of the Guaranteed Obligations, including failure
      of
      consideration, breach of warranty, statute of frauds, statute of limitations,
      accord and satisfaction and usury; and (viii)
      any
      other act or thing or omission, or delay to do any other act or thing, which
      may
      or might in any manner or to any extent vary the risk of any Guarantor as an
      obligor in respect of the Guaranteed Obligations.

     

    7.5  Waivers
      by Guarantors

     

    Each
      Guarantor hereby waives, for the benefit of Beneficiaries, to the maximum extent
      permitted by applicable law: (a)
      any
      right to require any Beneficiary, as a condition of payment or performance
      by
      such Guarantor, to (i)
      proceed
      against Company, any other guarantor (including any other Guarantor) of the
      Guaranteed Obligations or any other Person, (ii)
      proceed
      against or exhaust any security held from Company, 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 Beneficiary in favor of Company or any other Person, or
(iv)
      pursue
      any other remedy in the power of any Beneficiary whatsoever; (b)
      any
      defense arising by reason of the incapacity, lack of authority or any disability
      or other defense of Company including any defense based on or arising out of
      the
      lack of validity or the unenforceability of the Guaranteed Obligations or any
      agreement or instrument relating thereto or by reason of the cessation of the
      liability of Company from any cause other than payment in full in Cash of the
      Guaranteed Obligations; (c)
      any
      defense based 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 Beneficiary’s errors or omissions in the administration
      of the Guaranteed Obligations, except behavior which amounts to gross negligence
      or willful misconduct or 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 Beneficiary 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 under this Agreement, the Hedge Agreements or any agreement or
      instrument related thereto, notices of any renewal, extension or modification
      of
      the Guaranteed Obligations or any agreement related thereto, notices of any
      extension of credit to Company and notices of any of the matters referred to
      in
Section 7.4
      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 (other than payment in full in Cash of the Guaranteed
      Obligations).

     

    
      
         

      

      
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    7.6  Guarantors’
      Rights of Subrogation, Contribution, Etc.

     

    Each
      Guarantor hereby waives, until the Termination Date, any claim, right or remedy,
      direct or indirect, that such Guarantor now has or may hereafter have against
      Company or any of its assets in connection herewith or the performance by such
      Guarantor of its obligations hereunder, in each case whether such claim, right
      or remedy arises in equity, under contract, by statute under common law or
      otherwise and including (a)
      any
      right of subrogation, reimbursement or indemnification that such Guarantor
      now
      has or may hereafter have against Company, (b)
      any
      right to enforce, or to participate in, any claim, right or remedy that any
      Beneficiary now has or may hereafter have against Company, and
      (c)
      any
      benefit of, and any right to participate in, any collateral or security now
      or
      hereafter held by any Beneficiary. In addition, until the Termination Date,
      each
      Guarantor shall withhold exercise of any right of contribution such Guarantor
      may have against any other guarantor (including any other Guarantor) of the
      Guaranteed Obligations (including any such right of contribution under
Section 7.2(b)).
      Each
      Guarantor further agrees that, to the extent the waiver or agreement to withhold
      the exercise of its rights of subrogation, reimbursement, indemnification and
      contribution as set forth herein is found by a court of competent jurisdiction
      to be void or voidable for any reason, any rights of subrogation, reimbursement
      or indemnification such Guarantor may have against Company or against any
      collateral or security, and any rights of contribution such Guarantor may have
      against any such other guarantor, shall be junior and subordinate to any rights
      any Beneficiary may have against Company, to all right, title and interest
      any
      Beneficiary may have in any such collateral or security, and to any right any
      Beneficiary may have against such other guarantor. If any amount shall be paid
      to any Guarantor on account of any such subrogation, reimbursement,
      indemnification or contribution rights at any time when the Termination Date
      shall not have occurred, such amount 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 Beneficiaries to be credited and applied
      against the Guaranteed Obligations, whether matured or unmatured, in accordance
      with the terms hereof.

     

    7.7  Subordination
      of Other Obligations

     

    Any
      Indebtedness of Company or any Guarantor now or hereafter held by any Guarantor
      (the “Obligee
      Guarantor”)
      is
      hereby subordinated in right of payment to the Guaranteed 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 Beneficiaries to be credited and
      applied against the Guaranteed Obligations but without affecting, impairing
      or
      limiting in any manner the liability of the Obligee Guarantor under any other
      provision hereof.

     

    
      
         

      

      
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    7.8  Continuing
      Guaranty

     

    This
      Guaranty is a continuing guaranty and shall remain in effect until the
      Termination Date. Each Guarantor hereby irrevocably waives any right to revoke
      this Guaranty as to future transactions giving rise to any Guaranteed
      Obligations.

     

    7.9  Authority
      of Guarantors or Company

     

    It
      is not
      necessary for any Beneficiary to inquire into the capacity or powers of any
      Guarantor or Company or the officers, directors or any agents acting or
      purporting to act on behalf of any of them.

     

    7.10  Financial
      Condition of Company and Guarantors

     

    Any
      Credit Extension may be granted to Company 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 Company or any other Guarantor 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 Beneficiary shall have any obligation to disclose or discuss with
      any
      Guarantor its assessment, or any Guarantor’s assessment, of the financial
      condition of Company or any other Guarantor. Each Guarantor has adequate means
      to obtain information from Company and each other Guarantor on a continuing
      basis concerning the financial condition of Company or such other Guarantor
      and
      its ability to perform its obligations under the Credit Documents and the Hedge
      Agreements, and each Guarantor assumes the responsibility for being and keeping
      informed of the financial condition of Company and each other Guarantor and
      of
      all circumstances bearing upon the risk of nonpayment of the Guaranteed
      Obligations. Each Guarantor hereby waives and relinquishes any duty on the
      part
      of any Beneficiary to disclose any matter, fact or thing relating to the
      business, operations or conditions of Company or any other Guarantor now known
      or hereafter known by any Beneficiary.

     

    7.11  Bankruptcy,
      Etc.

     

     (a)   The
      obligations of
      Guarantors hereunder shall not be reduced, limited, impaired, discharged,
      deferred, suspended or terminated by any proceeding, voluntary or involuntary,
      involving the bankruptcy, insolvency, receivership, reorganization, liquidation
      or arrangement of Company or by any defense which Company may have by reason
      of
      the order, decree or decision of any court or administrative body resulting
      from
      any such proceeding.

     

    (b)  Each
      Guarantor acknowledges and agrees that any interest on any portion of the
      Guaranteed Obligations which accrues after the commencement of any proceeding
      referred to in clause (a) above (or, if interest on any portion of the
      Guaranteed Obligations ceases to accrue by operation of law by reason of the
      commencement of said proceeding, such interest as would have accrued on such
      portion of the Guaranteed Obligations if said proceedings 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 guarantied by Guarantors pursuant hereto should be determined without regard
      to any rule of law or order which may relieve Company 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
      proceeding is commenced.

     

    
      
         

      

      
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    (c)  In
      the
      event that all or any portion of the Guaranteed Obligations are paid by Company,
      the obligations of Guarantors hereunder shall continue and remain in full force
      and effect or be reinstated, as the case may be, in the event that all or any
      part of such payment(s) are rescinded or recovered directly or indirectly from
      any Beneficiary as a preference, fraudulent transfer or otherwise, and any
      such
      payments which are so rescinded or recovered shall constitute Guaranteed
      Obligations for all purposes hereunder; provided
      that
      interest or fees on any such reinstated Guaranteed Obligations shall not be
      payable for the period during which the Beneficiaries were paid such funds
      until
      the date such funds were returned.

     

    7.12  Discharge
      of Guaranty Upon Sale of Guarantor

     

    If
      all of
      the stock of any Guarantor or any of its successors in interest hereunder shall
      be sold or otherwise disposed of (including by merger or consolidation) in
      an
      Asset Sale not prohibited by this Agreement or otherwise consented to by
      Requisite Lenders, the Guaranty of such Guarantor or such successor in interest,
      as the case may be, hereunder shall automatically be discharged and released
      without any further action by any Beneficiary or any other Person effective
      as
      of the time of such Asset Sale.

     

    SECTION
      8.   EVENTS
      OF DEFAULT

     

    8.1  Events
      of Default

     

    If
      any
      one or more of the following conditions or events shall occur:

     

    (a)  failure
      by Company to pay (i)
      any
      installment of principal of any Loan when due, whether at stated maturity,
      by
      acceleration, by notice of voluntary prepayment, by mandatory prepayment or
      otherwise; (ii)
      when due
      any amount payable to Issuing Bank in reimbursement of any drawing under a
      Letter of Credit; or (iii)
      any
      interest on any Loan or any fee or any other amount due hereunder within five
      (5) days after the date due; or

     

    (b)  (i)
      failure
      of Holdings, Company or any of its Subsidiaries to pay when due any principal
      of
      or interest on or any other amount payable in respect of one or more items
      of
      Indebtedness (other than Indebtedness referred to in Section 8.1(a))
      with an
      aggregate principal amount of $20,000,000 or more beyond the end of any grace
      period provided therefor; or (ii)
      breach
      or default by Holdings, Company or any of its Subsidiaries with respect to
      any
      other material term of (1)
      one or
      more items of Indebtedness in the aggregate principal amount referred to in
      clause (i) above or (2)
      any loan
      agreement, mortgage, indenture or other agreement relating to such item(s)
      of
      Indebtedness, if the effect of such breach or default is to cause, or to permit
      the holder or holders of that Indebtedness (or a trustee on behalf of such
      holder or holders) to cause, that Indebtedness to become or be declared due
      and
      payable prior to its stated maturity (upon the giving or receiving of notice,
      lapse of time, both, or otherwise); or

     

    (c)  failure
      of Company to perform or comply with any term or condition contained in
Section 2.5,
      Section 5.1(h),
      Section 5.2
      (with
      respect to Holdings or the Company only), Section 5.10
      or
Section 6
      hereof;
provided
      that any
      Event of Default under Section 6.6
      is
      subject to cure as contemplated by Section 8.3;
      or

     

    
      
         

      

      
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    (d)  any
      representation, warranty or certification made or deemed made by Holdings,
      Company or any of its Subsidiaries in any Credit Document or in any statement
      or
      certificate at any time given by Holdings, Company or any of its Subsidiaries
      in
      writing pursuant hereto or thereto or in connection herewith or therewith shall
      be false in any material respect on the date as of which made or deemed made;
      or

     

    (e)  any
      Credit Party shall default in the performance of or compliance with any term
      contained herein or in any of the other Credit Documents, other than any such
      term referred to in any other provision of this Section 8.1,
      and
      such default shall not have been remedied or waived within thirty (30) days
      after receipt by Company of notice from Administrative Agent or any Lender
      of
      such default, provided
      that the
      failure to comply with the requirements of the first sentence of Section 5.1(p)
      shall not constitute an Event of Default hereunder; or

     

    (f)  (i)
      a court
      having jurisdiction in the premises shall enter a decree or order for relief
      in
      respect of Holdings, Company or any of its Material Subsidiaries (or any group
      of Company’s Subsidiaries that, taken as a whole, would constitute a Material
      Subsidiary) in an involuntary case under the Bankruptcy Code or under any other
      applicable bankruptcy, insolvency or similar law now or hereafter in effect,
      which decree or order is not stayed; or any other similar relief shall be
      granted under any applicable federal or state law; or (ii)
      an
      involuntary case shall be commenced against Holdings, Company or any of its
      Material Subsidiaries (or any group of Company’s Subsidiaries that, taken as a
      whole, would constitute a Material Subsidiary) under the Bankruptcy Code or
      under any other applicable bankruptcy, insolvency or similar law now or
      hereafter in effect; or a decree or order of a court having jurisdiction in
      the
      premises for the appointment of a receiver, liquidator, sequestrator, trustee,
      custodian or other officer having similar powers over Holdings, Company or
      any
      of its Material Subsidiaries (or any group of Company’s Subsidiaries that, taken
      as a whole, would constitute a Material Subsidiary), or over all or a
      substantial part of its property, shall have been entered; or there shall have
      occurred the involuntary appointment of an interim receiver, trustee or other
      custodian of Holdings, Company or any of its Material Subsidiaries (or any
      group
      of Company’s Subsidiaries that, taken as a whole, would constitute a Material
      Subsidiary) for all or a substantial part of its property; or a warrant of
      attachment, execution or similar process shall have been issued against any
      substantial part of the property of Holdings, Company or any of its Material
      Subsidiaries (or any group of Company’s Subsidiaries that, taken as a whole,
      would constitute a Material Subsidiary), and any such event described in this
      clause (ii) shall continue for sixty (60) days unless dismissed, bonded or
      discharged; or

     

    (g)  (i)
      Holdings, Company or any of its Material Subsidiaries (or any group of Company’s
      Subsidiaries that, taken as a whole, would constitute a Material Subsidiary)
      shall have an order for relief entered with respect to it or commence a
      voluntary case under the Bankruptcy Code or under any other applicable
      bankruptcy, insolvency or similar law now or hereafter in effect, or shall
      consent to the entry of an order for relief in an involuntary case, or to the
      conversion of an involuntary case to a voluntary case, under any such law,
      or
      shall consent to the appointment of or taking possession by a receiver, trustee
      or other custodian for all or a substantial part of its property and such
      appointment continues undischarged or unstayed for sixty (60) days; or Holdings,
      Company or any of its Material Subsidiaries (or any group of Company’s
      Subsidiaries that, taken as a whole, would constitute a Material Subsidiary)
      shall make any assignment for the benefit of creditors; or (ii)
      Holdings, Company or any of its Material Subsidiaries (or any group of Company’s
      Subsidiaries that, taken as a whole, would constitute a Material Subsidiary)
      shall be unable, or shall fail generally, or shall admit in writing its
      inability, to pay its debts as such debts become due; or the Board of Directors
      of Holdings, Company or any of its Material Subsidiaries (or any group of
      Company’s Subsidiaries that, taken as a whole, would constitute a Material
      Subsidiary) (or any committee thereof) shall adopt any resolution or otherwise
      authorize any action to approve any of the actions referred to in this
Section 8.1(g);
      or

     

    
      
         

      

      
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    (h)  any
      money
      judgment, writ or warrant of attachment or similar process involving
      individually or in the aggregate at any time an amount in excess of $20,000,000
      (in either case not adequately covered by insurance as to which the insurance
      company has not denied coverage) shall be entered or filed against Holdings,
      Company or any of its Subsidiaries or any of their respective assets and shall
      remain undischarged, unvacated, unbonded or unstayed for a period of sixty
      (60)
      days; or

     

    (i)  any
      order, judgment or decree shall be entered against Holdings, Company or any
      of
      its Subsidiaries decreeing the dissolution or split up of Holdings, Company
      or
      that Subsidiary and such order shall remain undischarged or unstayed for a
      period in excess of thirty (30) days; or

     

    (j)  (i)
      the
      Company and any of its Subsidiaries or ERISA Affiliates are required to
      contribute or pay during any year an aggregate amount to one or more
      Multiemployer Plans which could reasonably be expected to have a Material
      Adverse Effect; (ii)
      there
      shall occur one or more ERISA Events, other than any ERISA Events with respect
      of Multiemployer Plans, which individually or in the aggregate result in
      liability of Company, any of its Subsidiaries or any of their respective ERISA
      Affiliates in excess of $15,000,000 during the term hereof; (iii)
      there
      shall exist an amount of Unfunded Benefit Liabilities individually or in the
      aggregate for all Pension Plans (excluding for purposes of such computation
      any
      Pension Plans with respect to which assets exceed liabilities), which exceeds
      $15,000,000; or (iv)
      circumstances exist which may reasonably give rise to a lien under ERISA with
      respect to any Pension Plan; or

     

    (k)  a
      Change
      of Control shall have occurred; or 

     

    (l)  at
      any
      time after the execution and delivery thereof, (i) the Guaranty, for any reason
      other than the satisfaction in full of all non-contingent Obligations in Cash,
      ceases to be in full force and effect or is declared to be null and void or
      any
      Credit Party denies in writing that it has any further liability, including
      with
      respect to future advances by Lenders, under any Credit Document to which it
      is
      a party, or (ii) any Collateral Document shall cease to be in full force and
      effect (other than by reason of a release of Collateral thereunder in accordance
      with the terms hereof or thereof, the satisfaction in full in Cash of the
      non-contingent Obligations or any other termination of such Collateral Document
      in accordance with the terms hereof or thereof) or shall be declared null and
      void; or the validity or enforceability thereof shall be contested in writing
      by
      any Credit Party; or Collateral Agent shall not have or shall cease to have
      a
      valid security interest in any Collateral purported to be covered thereby,
      perfected and with the priority required by the relevant Collateral Document
      subject to Permitted Liens, for any reason other than the failure of Collateral
      Agent or any Lender to take any action within its control, subject only to
      Permitted Liens;

     

    
      
         

      

      
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    THEN
      (1)
      upon the
      occurrence of any Event of Default described in Section 8.1(f)
      or
8.1(g),
      each of
(A)
      the
      unpaid principal amount of and accrued interest on the Loans, (B)
      an
      amount equal to the maximum amount that may at any time be drawn under all
      Letters of Credit then outstanding (whether or not any beneficiary under any
      such Letter of Credit shall have presented, or shall be entitled at such time
      to
      present, the drafts or other documents or certificates required to draw under
      such Letter of Credit), and (C)
      all
      other Obligations shall automatically become immediately due and payable,
      without presentment, demand, protest or other requirements of any kind, all
      of
      which are hereby expressly waived by each Credit Party, and the obligation
      of
      each Lender to make any Loan, the obligation of Issuing Bank to issue any Letter
      of Credit and the right of any Lender to issue any Letter of Credit hereunder
      shall thereupon terminate, and (2)
      upon the
      occurrence and during the continuation of any other Event of Default,
      Administrative Agent shall, upon the written request or with the written consent
      of Requisite Lenders, by written notice to Company, declare all or any portion
      of the amounts described in clauses (A) through (C) above to be, and the same
      shall forthwith become, immediately due and payable, and the obligation of
      each
      Lender to make any Loan, the obligation of Issuing Bank to issue any Letter
      of
      Credit and the right of any Lender to issue any Letter of Credit hereunder
      shall
      thereupon terminate; provided,
      the
      foregoing shall not affect in any way the obligations of Lenders under
Section 2.3
      or the
      obligations of Lenders to purchase participations in any unpaid Swing Line
      Loans
      as provided in Section 2.2(c).

     

    Company
      shall at such time deposit any amounts described in clause (B) above in one
      or
      more cash collateral accounts opened by the Administrative Agent. Company hereby
      grants to the Administrative Agent, for the benefit of the Issuing Bank and
      each
      Lender with a participation in such Letters of Credit, a security interest
      in
      such cash collateral to secure all Obligations. Any 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 issued for the account of Company,
      and the unused portion thereof after all such Letters of Credit shall have
      expired, been fully drawn upon or back-stopped, if any, shall (i) to the extent
      an Event of Default then exists, be applied to repay the other Obligations
      or
      (ii) shall otherwise be immediately returned to Company. After all such Letters
      of Credit shall have expired, been fully drawn upon or back-stopped and all
      non-contingent Obligations shall have been satisfied and paid in full in Cash,
      the balance, if any, in such cash collateral account shall be returned to
      Company. Company shall execute and deliver to the Administrative Agent, for
      the
      account of the relevant Issuing Bank and the Lenders with participations in
      such
      Letters of Credit, such further documents and instruments as the Administrative
      Agent may request to evidence the creation and perfection of the within security
      interest in such cash collateral account.

     

    8.2  Certain
      Option of Lenders

     

    Notwithstanding
      anything contained in Section 8.1,
      if at
      any time within sixty (60) days after an acceleration of the Loans pursuant
      to
      such Section, Company shall pay all arrears of interest and all payments on
      account of principal which shall have become due otherwise than as a result
      of
      such acceleration (with interest on principal and, to the extent permitted
      by
      law, on overdue interest, at the rates specified herein) and all Events of
      Default and Defaults (other than non-payment of the principal of and accrued
      interest on the Loans, in each case which is due and payable solely by virtue
      of
      acceleration) shall be remedied or waived pursuant to Section 10.5,
      then
      Requisite Lenders, by written notice to Company, may at their option rescind
      and
      annul such acceleration and its consequences; but such action shall not affect
      any subsequent Event of Default or Default or impair any right consequent
      thereon. The provisions of this Section 8.2
      are
      intended merely to bind Lenders to a decision which may be made at the election
      of Requisite Lenders and are not intended, directly or indirectly, to benefit
      Company, and such provisions shall not at any time be construed so as to grant
      Company the right to require Lenders to rescind or annul any acceleration
      hereunder or to preclude Administrative Agent or Lenders from exercising any
      of
      the rights or remedies available to them under any of the Credit Documents,
      even
      if the conditions set forth in this Section 8.2
      are
      met.

     

    
      
         

      

      
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    8.3  Company’s
      Right to Cure Financial Performance Covenants

     

    Notwithstanding
      anything to the contrary contained in Section 8.1,
      in the
      event that Company fails to comply with the requirements of any Financial
      Performance Covenant, until the 10th day subsequent to delivery of the related
      Compliance Certificate, Holdings shall have the right, but in any event no
      more
      than (i)
      two (2)
      times in any twelve-month period and (ii)
      four (4)
      times from the Closing Date to the date of determination, to issue Permitted
      Cure Securities for cash or otherwise receive cash contributions to the capital
      of Holdings, in either case in an aggregate amount equal to the lesser of
(a)
      the
      amount necessary to cure the relevant failure to comply with all the Financial
      Performance Covenants and (b)
      $20,000,000, and, in each case, to contribute any such cash to the capital
      of
      Company (collectively, the “Cure
      Right”),
      and
      upon the receipt by Company of such cash (the “Cure
      Amount”)
      pursuant to the exercise by Holdings of such Cure Right such Financial
      Performance Covenant shall be recalculated giving effect to the following pro
      forma adjustments:

     

    (i)  Consolidated
      Adjusted EBITDA shall be increased, in accordance with the definition thereof,
      solely for the purpose of measuring the Financial Performance Covenants and
      not
      for any other purpose under this Agreement, by an amount equal to the Cure
      Amount; 

     

    (ii)  if,
      after
      giving effect to the foregoing recalculations, Company shall then be in
      compliance with the requirements of all Financial Performance Covenants, Company
      shall be deemed to have satisfied the requirements of the Financial Performance
      Covenants as of the relevant date of determination with the same effect as
      though there had been no failure to comply therewith at such date, and the
      applicable breach or default of the Financial Performance Covenants which had
      occurred shall be deemed cured for all purposes of the Agreement;
      and

     

    (iii)  to
      the
      extent that the Cure Amount proceeds are used to repay Indebtedness, such
      Indebtedness shall not be deemed to have been repaid for purposes of calculating
      the Leverage Ratio for the period with respect to which such Compliance
      Certificate applies.

     

    
      
         

      

      
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    SECTION
      9.   AGENTS

     

    9.1  Appointment
      of Agents

     

    GSCP
      is
      hereby appointed Syndication Agent and Lead Arranger hereunder, and each Lender
      hereby authorizes Syndication Agent and Lead Arranger to act as its agent in
      accordance with the terms hereof and the other Credit Documents. Each of GE
      Capital and CIT is hereby appointed a Co-Documentation Agent hereunder and
      each
      Lender hereby authorizes such Documentation Agent to act as its agent in
      accordance with the terms hereof and the other Credit Documents. DBNY is hereby
      appointed Administrative Agent hereunder and under the other Credit Documents
      and each Lender hereby authorizes Administrative Agent to act as its agent
      in
      accordance with the terms hereof and the other Credit Documents. Each Agent
      hereby agrees to act upon the express conditions contained herein and in the
      other Credit Documents, as applicable. The provisions of this Section 9
      are
      solely for the benefit of Agents and Lenders and no Credit Party shall have
      any
      rights as a third party beneficiary of any of the provisions thereof, except
      as
      provided in Sections 9.7
      and
9.8.
      In
      performing its functions and duties hereunder, each Agent shall act solely
      as an
      agent of Lenders and does not assume and shall not be deemed to have assumed
      any
      obligation towards or relationship of agency or trust with or for Holdings,
      Company or any of their respective Subsidiaries, except as provided in
Section 2.6
      as to
      Administrative Agent with respect to maintaining the Register. Syndication
      Agent
      and Co-Documentation Agents, without consent of or notice to any party hereto,
      may assign any and all of their respective rights or obligations hereunder
      to
      any of their respective Affiliates. As of the Effective Date, neither GSCP,
      in
      its capacity as Syndication Agent and Lead Arranger, nor GE Capital and CIT
      as
      Co-Documentation Agents shall have any obligations but shall be entitled to
      all
      benefits of this Section 9.

     

    9.2  Powers
      and Duties

     

    Each
      Lender irrevocably authorizes each Agent to take such action on such Lender’s
      behalf and to exercise such powers, rights and remedies hereunder and under
      the
      other Credit Documents as are specifically delegated or granted to such Agent
      by
      the terms hereof and thereof, together with such powers, rights and remedies
      as
      are reasonably incidental thereto. Each Agent shall have only those duties
      and
      responsibilities that are expressly specified herein and in the other Credit
      Documents. Each Agent may exercise such powers, rights and remedies and perform
      such duties by or through its agents or employees. No Agent shall have, by
      reason hereof or of any of the other Credit Documents, a fiduciary relationship
      in respect of any Lender; and nothing herein or in any of the other Credit
      Documents, expressed or implied, is intended to or shall be so construed as
      to
      impose upon any Agent any obligations in respect hereof or of any of the other
      Credit Documents except as expressly set forth herein or therein.

     

    9.3  General
      Immunity

     

    (a)   No
      Agent shall be
      responsible to any Lender for the execution, effectiveness, genuineness,
      validity, enforceability, collectibility or sufficiency hereof or of any other
      Credit Document or for any representations, warranties, recitals or statements
      made herein or therein or made in any written or oral statements or in any
      financial or other statements, instruments, reports or certificates or any
      other
      documents furnished or made by any Agent to Lenders or by or on behalf of
      Company to any Agent or any Lender in connection with the Credit Documents
      and
      the transactions contemplated thereby or for the financial condition or business
      affairs of any Credit Party or any other Person liable for the payment of any
      Obligations, nor shall any Agent be required to ascertain or inquire as to
      the
      performance or observance of any of the terms, conditions, provisions, covenants
      or agreements contained in any of the Credit Documents or as to the use of
      the
      proceeds of the Loans or as to the existence or possible existence of any Event
      of Default or Default. Anything contained herein to the contrary
      notwithstanding, Administrative Agent shall not have any liability arising
      from
      confirmations of the amount of outstanding Loans or the Letter of Credit Usage
      or the component amounts thereof. 

     

    
      
         

      

      
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    (b)  None
      of
      Agents nor any of their respective officers, partners, directors, employees
      or
      agents shall be liable to Lenders for any action taken or omitted by any Agent
      under or in connection with any of the Credit Documents except to the extent
      caused by such Agent’s gross negligence or willful misconduct. Each Agent shall
      be entitled to refrain from any act or the taking of any action (including
      the
      failure to take an action) in connection herewith or with any of the other
      Credit Documents or from the exercise of any power, discretion or authority
      vested in it hereunder or thereunder unless and until such Agent shall have
      received instructions in respect thereof from Requisite Lenders (or such other
      Lenders as may be required to give such instructions under Section 10.5)
      and,
      upon receipt of such instructions from Requisite Lenders (or such other Lenders,
      as the case may be), such Agent shall be entitled to act or (where so
      instructed) refrain from acting, or to exercise such power, discretion or
      authority, in accordance with such instructions. Without prejudice to the
      generality of the foregoing, (i)
      each
      Agent shall be entitled to rely, and shall be fully protected in relying, upon
      any communication, instrument or document believed by it to be genuine and
      correct and to have been signed or sent by the proper person or persons, and
      shall be entitled to rely and shall be protected in relying on opinions and
      judgments of attorneys (who may be attorneys for Company and its Subsidiaries),
      accountants, experts and other professional advisors selected by it; and
(ii)
      no
      Lender shall have any right of action whatsoever against any Agent as a result
      of such Agent acting or (where so instructed) refraining from acting hereunder
      or under any of the other Credit Documents in accordance with the instructions
      of Requisite Lenders (or such other Lenders as may be required to give such
      instructions under Section 10.5).

     

    9.4  Agent
      Entitled to Act as Lender

     

    The
      agency hereby created shall in no way impair or affect any of the rights and
      powers of, or impose any duties or obligations upon, any Agent in its individual
      capacity as a Lender hereunder. With respect to its participation in the Loans
      and the Letters of Credit, each Agent shall have the same rights and powers
      hereunder as any other Lender and may exercise the same as though it were not
      performing the duties and functions delegated to it hereunder, and the term
      “Lender” or “Lenders” or any similar term shall, unless the context clearly
      otherwise indicates, include each Agent in its individual capacity. Any Agent
      and its Affiliates may accept deposits from, lend money to and generally engage
      in any kind of banking, trust, financial advisory or other business with Company
      or any of its Affiliates as if it were not performing the duties specified
      herein, and may accept fees and other consideration from Company for services
      in
      connection herewith and otherwise without having to account for the same to
      Lenders.

     

    9.5  Lenders’
      Representations and Warranties

     

    (a)  
      Each
      Lender, by delivering its signature page to this Agreement or a Joinder
      Agreement and funding its Tranche D Term Loan and/or Revolving Loans on the
      Effective Date or by the funding of any New Loans, as the case may be, shall
      be
      deemed to have acknowledged receipt of, and consented to and approved, each
      Credit Document and each other document required to be approved by any Agent,
      Requisite Lenders or Lenders, as applicable on the Effective Date or as of
      the
      date of funding of such New Loans.

     

    
      
         

      

      
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    (b)  Each
      Lender represents and warrants that it has made its own independent
      investigation of the financial condition and affairs of Company and its
      Subsidiaries in connection with the Credit Extensions thereof hereunder and
      that
      it has made and shall continue to make its own appraisal of the creditworthiness
      of Company and its Subsidiaries. No Agent shall have any duty or responsibility,
      either initially or on a continuing basis, to make any such investigation or
      any
      such appraisal on behalf of Lenders or to provide any Lender with any credit
      or
      other information with respect thereto, whether coming into its possession
      before the making of the Loans or at any time or times thereafter, and no Agent
      shall have any responsibility with respect to the accuracy of or the
      completeness of any information provided to Lenders.

     

    9.6  Right
      to Indemnity

     

    Each
      Lender, in proportion to its Pro Rata Share, severally agrees to indemnify
      each
      Agent, to the extent that such Agent shall not have been reimbursed by Company,
      for and against any and all liabilities, obligations, losses, damages,
      penalties, actions, judgments, suits, costs, expenses (including counsel fees
      and disbursements) or disbursements of any kind or nature whatsoever which
      may
      be imposed on, incurred by or asserted against such Agent in exercising its
      powers, rights and remedies or performing its duties hereunder or under the
      other Credit Documents or otherwise in its capacity as such Agent in any way
      relating to or arising out hereof or of the other Credit Documents; provided,
      no
      Lender shall be liable for any portion of such liabilities, obligations, losses,
      damages, penalties, actions, judgments, suits, costs, expenses or disbursements
      resulting from such Agent’s gross negligence or willful misconduct. If any
      indemnity furnished to any Agent for any purpose shall, in the opinion of such
      Agent, be insufficient or become impaired, such Agent may call for additional
      indemnity and cease, or not commence, to do the acts indemnified against until
      such additional indemnity is furnished; provided,
      in no
      event shall this sentence require any Lender to indemnify any Agent against
      any
      liability, obligation, loss, damage, penalty, action, judgment, suit, cost,
      expense or disbursement in excess of such Lender’s Pro Rata Share thereof; and
provided further,
      this
      sentence shall not be deemed to require any Lender to indemnify any Agent
      against any liability, obligation, loss, damage, penalty, action, judgment,
      suit, cost, expense or disbursement described in the proviso in the immediately
      preceding sentence.

     

    9.7  Successor
      Administrative Agent and Swing Line Lender

     

    (a)   Administrative
      Agent may
      resign at any time by giving 30 days’ prior written notice thereof to Lenders
      and Company, and Administrative Agent may be removed at any time with or without
      cause by an instrument or concurrent instruments in writing delivered to Company
      and Administrative Agent and signed by Requisite Lenders. Upon any such notice
      of resignation or any such removal, Requisite Lenders shall have the right,
      upon
      five Business Days’ notice to Company, to appoint a successor Administrative
      Agent, provided
      that
      Company shall have the right to approve any such successor Administrative Agent
      unless an Event of Default then exists under Sections 8.1(a),
      8.1(f)
      or
8.1(g).
      Upon
      the approval by Company (if required hereunder) acceptance of any appointment
      as
      Administrative Agent hereunder by a successor Administrative Agent, that
      successor Administrative Agent shall thereupon succeed to and become vested
      with
      all the rights, powers, privileges and duties of the retiring or removed
      Administrative Agent and the retiring or removed Administrative Agent shall
      be
      discharged from its duties and obligations hereunder. After any retiring or
      removed Administrative Agent’s resignation or removal hereunder as
      Administrative Agent, the provisions of this Section 9
      shall
      inure to its benefit as to any actions taken or omitted to be taken by it while
      it was Administrative Agent hereunder. 

     

    
      
         

      

      
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    (b)  Swing
      Line Lender may resign at any time by giving 30 days’ prior written notice
      thereof to Lenders and Company. Upon any such notice of resignation
      Administrative Agent shall have the right, upon five Business Days’ notice to
      Company, to appoint a successor Swing Line Lender from among the Lenders,
provided
      that
      Company shall have the right to approve any such successor Administrative Agent
      unless an Event of Default then exists under Sections 8.1(a),
      8.1(f)
      or
8.1(g).
      Upon
      the acceptance of any appointment as Swing Line Lender hereunder by a successor
      Swing Line Lender, that successor Swing Line Lender shall thereupon succeed
      to
      and become vested with all the rights, powers, privileges and duties of the
      retiring Swing Line Lender and the retiring Swing Line Lender shall be
      discharged from its duties and obligations hereunder. In such event (i)
      Company
      shall prepay any outstanding Swing Line Loans made by the retiring Swing Line
      Lender, (ii)
      upon
      such prepayment, the retiring Swing Line Lender shall surrender the Swing Line
      Note held by it to Company for cancellation, and (iii)
      Company
      shall issue a new Swing Line Note to the successor Swing Line Lender, in the
      principal amount of the Swing Line Loan Commitment then in effect and with
      other
      appropriate insertions.

     

    9.8  Collateral
      Documents and Guaranties

     

    (a)   Each
      Lender hereby
      further authorizes Administrative Agent or Collateral Agent, as applicable,
      on
      behalf of and for the benefit of the Secured Parties, to enter into each
      Collateral Document as secured party and to be the agent for and representative
      of Lenders with respect to the Guaranty and the Collateral, and each Lender
      agrees to be bound by the terms of each Collateral Document. Subject to
Section 10.5,
      without
      further written consent or authorization from Lenders, Administrative Agent
      or
      Collateral Agent, as applicable, may execute any documents or instruments
      necessary to (i)
      release
      any Lien encumbering any item of Collateral that is the subject of a sale or
      other disposition of assets permitted hereby or to which Requisite Lenders
      (or
      such other Lenders as may be required to give such consent under Section 10.5)
      have
      otherwise consented or (ii)
      release
      any Subsidiary Guarantor from the Guaranty if any of the capital stock of such
      Subsidiary Guarantor is sold to any Person (other than an Affiliate of Company)
      pursuant to a sale or other disposition permitted hereunder or to which
      Requisite Lenders (or such other Lenders as may be required to give such consent
      under Section 10.5)
      have
      otherwise consented and as a result such Person ceases to be a Subsidiary
      hereunder or (iii) subordinate
      any Lien on any property granted to or held by Collateral Agent under the Credit
      Documents to the holder of any Lien on such property that is permitted under
      (x) Section 6.2(c),
      (y) Section 6.2(f)
      and
(z)
      any
      other Section of Section 6.2,
      so long
      as such Lien is granted in connection with the issuance or incurrence
      Indebtedness permitted by Section 6.1
      and the
      proceeds of such Indebtedness are used to purchase assets (including by means
      of
      a Capital Lease) or to refinance Indebtedness which was previously used to
      purchase assets (including any Capital Lease); provided
      that
      such subordination shall only cover the respective property so acquired and
      the
      proceeds and products thereof.

     

    (b)  Anything
      contained in any of the Credit Documents to the contrary notwithstanding,
      Company, Administrative Agent, Collateral Agent and each Lender hereby agree
      that (i)
      no
      Lender shall have any right individually to realize upon any of the Collateral
      or to enforce the Guaranty, it being understood and agreed that all powers,
      rights and remedies hereunder and under the Collateral Documents may be
      exercised solely by Administrative Agent for the benefit of Lenders in
      accordance with the terms hereof, and (ii)
      in the
      event of a foreclosure by Collateral Agent on any of the Collateral pursuant
      to
      a public or private sale, Collateral Agent or any Lender may be the purchaser
      of
      any or all of such Collateral at any such sale and Collateral Agent, as agent
      for and representative of Lenders (but not any Lender or Lenders in its or
      their
      respective individual capacities unless Requisite Lenders shall otherwise agree
      in writing) shall be entitled, for the purpose of bidding and making settlement
      or payment of the purchase price for all or any portion of the Collateral sold
      at any such public sale, to use and apply any of the Obligations as a credit
      on
      account of the purchase price for any collateral payable by Collateral Agent
      at
      such sale.

     

    
      
         

      

      
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    (c)  It
      is the
      purpose hereof and of the other Credit Documents that there shall be no
      violation of any law of any jurisdiction denying or restricting the right of
      banking corporations or associations to transact business as agent or trustee
      in
      such jurisdiction. It is recognized that in case of litigation hereunder or
      under any of the other Credit Documents, and in particular in case of the
      enforcement of any of the Credit Documents, or in case Collateral Agent deems
      that by reason of any present or future law of any jurisdiction it may not
      exercise any of the rights, powers or remedies granted herein or in any of
      the
      other Credit Documents or take any other action which may be desirable or
      necessary in connection therewith, it may be necessary that Collateral Agent
      appoint an additional individual or institution as a separate trustee,
      co-trustee, collateral agent or collateral co-agent (a “Supplemental
      Collateral Agent”).
      In
      the event that Collateral Agent appoints a Supplemental Collateral Agent with
      respect to any Collateral, (i)
      each
      and
      every right, power, privilege or duty expressed or intended hereby or by any
      of
      the other Credit Documents to be exercised by or vested in or conveyed to
      Collateral Agent with respect to such Collateral shall be exercisable by and
      vest in such Supplemental Collateral Agent to the extent, and only to the
      extent, necessary to enable such Supplemental Collateral Agent to exercise
      such
      rights, powers and privileges with respect to such Collateral and to perform
      such duties with respect to such Collateral, and every covenant and obligation
      contained in the Credit Documents and necessary to the exercise or performance
      thereof by such Supplemental Collateral Agent shall run to and be enforceable
      by
      either Collateral Agent or such Supplemental Collateral Agent, and (ii)
      the
      provisions of this Section 9
      and of
Sections 10.2
      and
10.3
      that
      refer to Collateral Agent shall inure to the benefit of such Supplemental
      Collateral Agent and all references therein to Collateral Agent shall be deemed
      to be references to Collateral Agent and/or such Supplemental Collateral Agent,
      as the context may require. Should any instrument in writing from Company or
      any
      other Credit Party be required by any Supplemental Collateral Agent so appointed
      by Collateral Agent for more fully and certainly vesting in and confirming
      to
      him or it such rights, powers, privileges and duties, Company shall, or shall
      cause such Credit Party to, execute, acknowledge and deliver any and all such
      instruments promptly upon request by Collateral Agent. In case any Supplemental
      Collateral Agent, or a successor thereto, shall die, become incapable of acting,
      resign or be removed, all the rights, powers, privileges and duties of such
      Supplemental Collateral Agent, to the extent permitted by law, shall vest in
      and
      be exercised by Administrative Agent until the appointment of a new Supplemental
      Collateral Agent.

     

    (d)  Company
      and each Guarantor hereby authorize the Collateral Agent to file any financing
      statements or continuation statements, and amendments to financing statements
      in
      any jurisdictions and with any filing offices as the Collateral Agent may
      determine, in its sole discretion, are necessary or advisable to perfect or
      to
      maintain the perfection of the first priority security interest granted to
      Collateral Agent under any of the Credit Documents. Such financing statements
      may describe the Collateral in the same manner as described in the Pledge and
      Security Agreement or may contain an indication or description of collateral
      that describes such property in any other manner as the Collateral Agent may
      determine, in its sole discretion, is necessary, advisable or prudent to ensure
      the perfection of the security interest in the Collateral granted to the
      Collateral Agent under any of the Credit Documents, including, without
      limitation, describing such property as “all assets” or “all personal property,
      whether now owned or hereafter acquired.” Collateral Agent will provide Company
      with file-stamped copies of any such filings made by it.

     

    
      
         

      

      
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    SECTION
      10.   MISCELLANEOUS

     

    10.1  Notices

     

    Unless
      otherwise specifically provided herein, any notice or other communication herein
      required or permitted to be given shall be in writing and may be personally
      served, telexed or sent by telefacsimile (and confirmed by telephone) or United
      States mail or courier service and shall be deemed to have been given when
      delivered in person or by courier service, upon receipt of telefacsimile (and
      confirmed by telephone) or telex, or three (3) Business Days after depositing
      it
      in the United States mail with postage prepaid and properly addressed;
provided,
      notices
      to Agents shall not be effective until received. For the purposes hereof, the
      address of each party hereto shall be as set forth under such party’s name on
      the signature pages hereof or (i)
      as to
      Company and Administrative Agent, such other address as shall be designated
      by
      such Person in a written notice delivered to the other parties hereto and
(ii)
      as to
      each other party, such other address as shall be designated by such party in
      a
      written notice delivered to Administrative Agent and Company.

     

    10.2  Expenses

     

    Whether
      or not the transactions contemplated hereby shall be consummated, Company agrees
      to pay promptly (a)
      all the
      actual and reasonable costs and expenses of Administrative Agent and Syndication
      Agent in connection with the preparation of the Credit Documents and any
      consents, amendments, waivers or other modifications thereto; (b)
      all the
      costs of furnishing all opinions by counsel for Company (including any opinions
      requested by Lenders as to any legal matters arising hereunder) and of Company’s
      performance of and compliance with all agreements and conditions on its part
      to
      be performed or complied with hereunder and under the other Credit Documents
      including with respect to confirming compliance with environmental, insurance
      and solvency requirements; (c)
      the
      reasonable fees, expenses and disbursements of a single law firm acting as
      counsel to Agents in connection with the negotiation, preparation, execution
      and
      administration of the Credit Documents and any consents, amendments, waivers
      or
      other modifications thereto and any other documents or matters requested by
      Company; (d)
      all the
      actual costs and reasonable expenses of Collateral Agent in connection with
      creating and perfecting Liens in favor of Collateral Agent on behalf of the
      Secured Parties pursuant to the Collateral Documents and pursuant hereto,
      including filing and recording fees, expenses and stamp or documentary taxes
      or
      similar taxes, search fees, title insurance premiums and reasonable fees,
      expenses and disbursements of counsel to Agents and of a single counsel
      providing any opinions that Syndication Agent, Administrative Agent or Requisite
      Lenders may reasonably request in respect of the Collateral Documents or the
      Liens created pursuant hereto and thereto; (e)
      all the
      actual costs and reasonable expenses (including the reasonable fees, expenses
      and disbursements) of any auditors, consultants, accountants, agents or
      appraisers retained by any Agent with the prior consent of Company (not to
      be
      unreasonably withheld); (f)
      all the
      actual costs and reasonable expenses (including the reasonable fees, expenses
      and disbursements of any consultants, advisors and agents employed or retained
      by Collateral Agent and its counsel) of Agents in connection with the custody
      or
      preservation of any of the Collateral; (g)
      all
      other actual and reasonable costs and expenses incurred by Syndication Agent
      or
      Administrative Agent in connection with the syndication of the Commitments
      and
      the negotiation, preparation and execution of the Credit Documents and any
      consents, amendments, waivers or other modifications thereto and the
      transactions contemplated thereby; and (h)
      after
      the occurrence of an Event of Default, all costs and expenses (including
      reasonable attorneys’ fees of a single counsel to Agents and Lenders) and costs
      of settlement, incurred by Syndication Agent, Administrative Agent and Lenders
      in enforcing any Obligations of or in collecting any payments due from any
      Credit Party hereunder or under the other Credit Documents by reason of such
      Event of Default (including in connection with the sale of, collection from,
      or
      other realization upon any of the Collateral or the enforcement of the Guaranty)
      or in connection with any refinancing or restructuring of the credit
      arrangements provided hereunder in the nature of a “work-out” or pursuant to any
      insolvency or bankruptcy proceedings.

     

    
      
         

      

      
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    10.3  Indemnity

     

    (a)   In
      addition to the
      payment of expenses pursuant to Section 10.2,
      whether
      or not the transactions contemplated hereby shall be consummated, Company and
      each Guarantor agree to defend (subject to Indemnitees’ selection of counsel,
      which shall be reasonably satisfactory to Company), indemnify, pay and hold
      harmless Agents and Lenders, and the officers, partners, directors, trustees,
      employees, agents and affiliates of any of Agents and Lenders (each, an
“Indemnitee”),
      from
      and against any and all Indemnified Liabilities; provided,
      neither
      the Company nor any Guarantor shall have any obligation to any Indemnitee
      hereunder with respect to any Indemnified Liabilities (i) to the extent such
      Indemnified Liabilities arise from the gross negligence or willful misconduct
      or
      bad faith of that Indemnitee or (ii) to the extent such Indemnified Liabilities
      relate to Taxes (and any liabilities relating thereto), the indemnity for which
      shall be governed solely and exclusively by Section 2.20.
      To the
      extent that the undertakings to defend, indemnify, pay and hold harmless set
      forth in this Section 10.3
      may be
      unenforceable in whole or in part because they are violative of any law or
      public policy, Company and the Guarantors shall contribute the maximum portion
      that it is permitted to pay and satisfy under applicable law to the payment
      and
      satisfaction of all Indemnified Liabilities incurred by Indemnitees or any
      of
      them.

     

    (b)  Company
      and each Guarantor agree that neither it nor any of its Subsidiaries will
      settle, compromise or consent to the entry of any judgment in any pending or
      threatened claim, action or proceeding in respect of which indemnification
      or
      contribution could be sought under subsection (a) of this section (whether
      or
      not any Indemnitee is an actual or potential party to such claim, action or
      proceeding) without the prior written consent of the applicable Indemnitees,
      unless such settlement, compromise or consent includes an unconditional release
      of such Indemnitee from all liability arising out of such claim, action or
      proceeding, which consent shall not be unreasonably withheld or
      delayed.

     

    (c)  If
      an
      Indemnitee is requested or required to appear as a witness in any action brought
      by or on behalf of or against Company, any Guarantor or any Affiliate thereof
      in
      which such Indemnitee is not named as a defendant, Company agrees to reimburse
      such Indemnitee for all reasonable expenses incurred by it in connection with
      such Indemnitee’s appearing and preparing to appear as such a witness,
      including, without limitation, the reasonable fees and disbursements of its
      legal counsel.

     

    
      
         

      

      
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    10.4  Set-Off

     

    In
      addition to any rights now or hereafter granted under applicable law and not
      by
      way of limitation of any such rights, upon the occurrence of any Event of
      Default each Lender is hereby authorized by each Credit Party at any time or
      from time to time subject to the consent of Administrative Agent, without notice
      to any Credit Party or to any other Person (other than Administrative Agent),
      any such notice being hereby expressly waived, to set off and to appropriate
      and
      to apply any and all deposits (general or special, including Indebtedness
      evidenced by certificates of deposit, whether matured or unmatured, but not
      including trust accounts) and any other Indebtedness at any time held or owing
      by such Lender to or for the credit or the account of such Credit Party against
      and on account of the obligations and liabilities of such Credit Party to such
      Lender hereunder, the Letters of Credit and participations therein and the
      other
      Credit Documents, including all claims of any nature or description arising
      out
      of or connected herewith, the Letters of Credit and participations therein
      or
      any other Credit Document, irrespective of whether or not (a) such Lender shall
      have made any demand hereunder or (b) the principal of or the interest on the
      Loans or any amounts in respect of the Letters of Credit or any other amounts
      due hereunder shall have become due and payable pursuant to Section 2
      and
      although said obligations and liabilities, or any of them, may be contingent
      or
      unmatured. Each Lender agrees promptly to notify Company and Administrative
      Agent after any such set-off and application made by such Lender; provided,
      however,
      that
      the failure to give such notice shall not affect the validity of such set-off
      and application. Each Credit Party hereby further grants to Administrative
      Agent
      and each Lender a security interest in all deposits and accounts (other than
      trust accounts) maintained with Administrative Agent or such Lender as security
      for the Obligations.

     

    10.5  Amendments
      and Waivers

     

    (a)   Subject
      to Section 10.5(b),
      Section 10.5(c)
      and
Section 10.5(d),
      no
      amendment, modification, supplement or waiver of any provision of the Credit
      Documents, or consent to any departure by any Credit Party therefrom, shall
      in
      any event be effective without the written concurrence of Requisite
      Lenders.

     

    (b)  No
      amendment, modification, supplement or waiver of any provision of the Credit
      Documents, or consent to any departure by any Credit Party therefrom, shall
      extend the scheduled final maturity of any Loan or Note, or waive, reduce or
      postpone any scheduled repayment set forth in Section 2.11,
      or
      extend the stated expiration date of any Letter of Credit beyond the Revolving
      Loan Commitment Termination Date, or postpone the scheduled date of expiration
      of any Commitment or reduce the rate of interest on any Loan (other than any
      waiver of any increase in the interest rate applicable to any Loan pursuant
      to
Section 2.9)
      or any
      commitment fees or letter of credit fees payable hereunder, or extend the time
      for payment of any such interest or fees, or reduce the principal amount of
      any
      Loan or any reimbursement obligation in respect of any Letter of Credit, or
      shall amend any provision of the Credit Documents providing for pro rata
      treatment of Lenders in any such case without the written consent of each Lender
      with Obligations affected thereby (it being understood that any change to the
      definition of Leverage Ratio or in the component definitions thereof shall
      not
      constitute a reduction in any interest rate or any such fee).

     

    
      
         

      

      
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    (c)  No
      amendment, modification, supplement or waiver of any provision of the Credit
      Documents, or consent to any departure by any Credit Party therefrom, shall
      (i)
      amend,
      modify, supplement or waive any provision of this Section 10.5,
      (ii)
      reduce
      the percentage specified in the definition of “Requisite Lenders” or the
      definition of “Pro Rata Share” (it being understood that, with the consent of
      Requisite Lenders, additional extensions of credit pursuant to this Agreement
      may be included in the determination of “Requisite Lenders” and “Pro Rata Share”
on substantially the same basis as the Term Loan amounts, the Term Loans, the
      Revolving Loan Commitments and the Revolving Loans are included on the Effective
      Date), (iii)
      release
      all or substantially all of the Collateral or Holdings or all or substantially
      all of the other Guarantors from the Guaranty except as expressly provided
      in
      the Credit Documents, or (iv)
      consent
      to the assignment or transfer by Company of any of its rights and obligations
      hereunder, in each case without the written consent of each Lender.

     

    (d)  No
      amendment, modification, supplement or waiver of any provision of the Credit
      Documents, or consent to any departure by any Credit Party therefrom, shall:
      (i)
      increase
      the Commitments of any Lender over the amount thereof then in effect for such
      Lender without the consent of such Lender (it being understood that no
      amendment, modification or waiver of any condition precedent, covenant, Default
      or Event of Default, and no increase in the available portion of any Commitment
      of any Lender or the rescission of any acceleration pursuant to Section 8.2,
      shall
      constitute an increase in the Commitment of any Lender); (ii)
      amend,
      modify, terminate or waive any provision hereof relating to the Swing Line
      Loan
      Commitment or the Swing Line Loans without the consent of Swing Line Lender;
      (iii)
      reduce
      the percentage specified in the definition of “Requisite Class Lenders” with
      respect to a particular Class without the consent of each Lender of the affected
      Class, or otherwise amend the definition of “Requisite Class Lenders” without
      the consent of Requisite Class Lenders of each Class (it being understood that,
      with the consent of Requisite Lenders, additional extensions of credit pursuant
      to this Agreement may be included in the determination of “Requisite Class
      Lenders” on substantially the same basis as the Term Loan amounts, the Term
      Loans, the Revolving Loan Commitments and the Revolving Loans are included
      on
      the Effective Date); (iv)
      alter
      the required application of any repayments or prepayments as between Classes
      pursuant to Section 2.14
      without
      the consent of Requisite Class Lenders of each Class which is being allocated
      a
      lesser repayment or prepayment as a result thereof (although Requisite Lenders
      may waive, in whole or in part, any mandatory prepayment so long as the
      application, as between Classes, of any portion of such prepayment which is
      still required to be made is not altered); (v)
      amend,
      modify, terminate or waive any obligation of Lenders relating to the purchase
      of
      participations in Letters of Credit as provided in Section 2.3(e)
      without
      the written consent of Administrative Agent and of Issuing Bank; or (vi)
      amend,
      modify, terminate or waive any provision of Section 9
      as the
      same applies to any Agent, or any other provision hereof as the same applies
      to
      the rights or obligations of any Agent without the consent of such
      Agent.

     

    (e)  Administrative
      Agent may, but shall have no obligation to, with the concurrence of any Lender,
      execute amendments, modifications, waivers or consents on behalf of such Lender.
      Any waiver or consent shall be effective only in the specific instance and
      for
      the specific purpose for which it was given. No notice to or demand on any
      Credit Party in any case shall entitle any Credit Party to any other or further
      notice or demand in similar or other circumstances. Any amendment, modification,
      termination, waiver or consent effected in accordance with this Section 10.5
      shall be
      binding upon each Lender at the time outstanding, each future Lender and, if
      signed by a Credit Party, on such Credit Party.

     

    
      
         

      

      
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    (f)  Notwithstanding
      anything to the contrary contained herein, this Agreement may be amended with
      the written consent of the Administrative Agent, Company, the holders of not
      less than 50.0% of the Revolving Credit Exposure and the Lenders providing
      the
      relevant Replacement Term Loans to permit the refinancing of all outstanding
      Tranche D Term Loans or any Series of New Term Loans (the “Refinanced
      Term Loan”)
      with a
      replacement term loan tranche hereunder (the “Replacement
      Term Loans”),
      provided
      that (a)
      the aggregate principal amount of such Replacement Term Loans shall not exceed
      the aggregate principal amount of such Refinanced Term Loan, (b) the interest
      rate for such Replacement Term Loans shall not be higher than the interest
      rate
      for such Refinanced Term Loan, (c) the weighted average life to maturity of
      such
      Replacement Term Loans shall not be shorter than the weighted average life
      to
      maturity of such Refinanced Term Loan at the time of such refinancing and (d)
      all other terms applicable to such Replacement Term Loans shall be substantially
      identical to, or less favorable to the Lenders providing such Replacement Term
      Loans than those applicable to such Refinanced Term Loan, except to the extent
      necessary to provide for covenants and other terms applicable to any period
      after the latest final maturity of the Term Loans in effect immediately prior
      to
      such refinancing.

     

    10.6  Successors
      and Assigns; Participations

     

    (a)   This
      Agreement shall be
      binding upon the parties hereto and their respective successors and assigns
      and
      shall inure to the benefit of the parties hereto and the successors and assigns
      of Lenders. Neither any Credit Party’s rights or obligations hereunder nor any
      interest therein may be assigned or delegated by any Credit Party without the
      prior written consent of all Lenders.

     

    (b)  No
      assignment or transfer of any Commitment or Loan shall be effective, in each
      case unless and until an Assignment Agreement effecting the assignment or
      transfer thereof shall have been accepted by Administrative Agent and recorded
      in the Register. Prior to such recordation, all amounts owed with respect to
      the
      applicable Commitment or Loan shall be owed to the Lender listed in the Register
      as the owner thereof, and any request, authority or consent of any Person who,
      at the time of making such request or giving such authority or consent, is
      listed in the Register as a Lender shall be conclusive and binding on any
      subsequent holder, assignee or transferee of the corresponding Commitments
      or
      Loans.

     

    (c)  Each
      Lender shall have the right at any time to sell, assign or transfer, in whole
      or
      in part, any Commitment, Loan, Letter of Credit or any other Obligation:
(i)
      upon the
      giving of notice to Administrative Agent, to another Lender, or to an Affiliate
      of the assigning Lender (or if such assigning Lender is a fund that invests
      in
      commercial or bank loans, another such investment fund managed or advised by
      the
      same investment advisor or an Affiliate thereof) or another Lender; or
(ii)
      in the
      case of Term Loans (unless otherwise covered by clause (i) hereof), with the
      consent of Company and Administrative Agent (which consent of Company and
      Administrative Agent shall not be unreasonably withheld or delayed) to any
      other
      Eligible Assignee (treating any two or more investment funds that invest in
      commercial loans and that are managed or advised by the same investment advisor
      or by an Affiliate of such investment advisor as a single Eligible Assignee),
      in
      an aggregate amount of not less than $1,000,000 (or such lesser amount as shall
      constitute the aggregate amount of the Tranche D Term Loan, New Term Loans
      and
      other Obligations of the assigning Lender); or (iii)
      in each
      other case, with the consent of Company and Administrative Agent (which consent
      of Company and Administrative Agent shall not be unreasonably withheld or
      delayed) to any other Eligible Assignee (treating any two or more investment
      funds that invest in commercial loans and that are managed or advised by the
      same investment advisor or by an Affiliate of such investment advisor as a
      single Eligible Assignee), in an aggregate amount of not less than $5,000,000
      (or such lesser amount as shall constitute the aggregate amount of the
      Commitments, Loans, Letters of Credit and participations therein, and other
      Obligations of the assigning Lender); provided,
      however,
      that
      upon the occurrence and during the continuance of an Event of Default with
      respect to Sections 8.1(a),
      8.1(f)
      and
8.1(g),
      the
      consent of Company shall not be required under clauses (ii) and (iii) above.
      Notwithstanding the foregoing, the Swing Line Loan Commitment and the Swing
      Line
      Loans of Swing Line Lender may not be sold, assigned or transferred except
      to
      the extent contemplated by Section 9.7(b).

     

    
      
         

      

      
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    (d)  The
      assigning Lender and the assignee thereof shall execute and deliver to
      Administrative Agent an Assignment Agreement, together with a processing and
      recordation fee of $2,000 (treating any two or more investment funds that invest
      in commercial loans and that are managed or advised by the same investment
      advisor or by an Affiliate of such investment advisor as a single Eligible
      Assignee) and such forms, certificates or other evidence, if any, with respect
      to United States federal income tax withholding matters as the assignee under
      such Assignment Agreement may be required to deliver to Administrative Agent
      pursuant to Section 2.20(c)
      and
Section 2.20(d);
      provided,
      that
      notwithstanding the foregoing to the contrary, no processing fee shall be
      required to be paid with respect to assignments made pursuant to clause (ii)
      of
      the definition of “Eligible Assignee”. Subject to Section 10.6(b),
      upon
      its receipt of a duly executed and completed Assignment Agreement, together
      with
      the processing and recordation fee referred to herein and any forms,
      certificates or other evidence that such assignee may be required hereunder
      to
      deliver to Administrative Agent, Administrative Agent shall, if Administrative
      Agent and Company have consented to the assignment evidenced thereby (in each
      case to the extent such consent is required hereunder), (i)
      accept
      such Assignment Agreement by executing a counterpart thereof as provided therein
      (which acceptance shall evidence any required consent of Administrative Agent
      to
      such assignment), (ii)
      record
      the information contained therein in the Register, and (iii)
      give
      prompt notice thereof to Company. Administrative Agent shall maintain a copy
      of
      each Assignment Agreement delivered to and accepted by it as provided in this
      Section 10.6(d).
      Anything contained herein to the contrary notwithstanding, in the case of an
      assignment to an Affiliate of the assigning Lender, such assignment shall be
      effective between such assigning Lender and its Affiliate immediately without
      compliance with the conditions for assignment under Sections
      10.6(b)
      through
(d),
      but
      shall not be effective with respect to any Credit Party, Administrative Agent,
      any other Agent, any Issuing Bank, any Swing Line Lender or any Lender, and
      each
      Credit Party, Administrative Agent, each other Agent, each Issuing Bank, each
      Swing Line Lender and each Lender shall be entitled to deal solely and directly
      with such assigning Lender under any such assignment, in each case, until the
      conditions for assignment under Sections
      10.6(b)
      through
(d)
      have
      been
      complied with.

     

    (e)  Each
      Lender listed on the signature pages hereof hereby represents and warrants,
      and
      each Lender executing and delivering an Assignment Agreement shall be deemed
      to
      represent and warrant as of the effective date of such Assignment Agreement,
      that (i)
      it is an
      Eligible Assignee; (ii)
      it has
      experience and expertise in the making or purchasing of loans such as the Loans;
      and (iii)
      it will
      make or purchase, as the case may be, its Loans for its own account in the
      ordinary course of its business and without a view to distribution of such
      Loans
      within the meaning of the Securities Act or the Exchange Act or other federal
      securities laws (it being understood that, subject to the provisions of this
      Section 10.6,
      the
      disposition of such Loans or any interests therein shall at all times remain
      within its exclusive control).

     

    
      
         

      

      
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    (f)  Subject
      to the terms and conditions of this Section 10.6,
      as of
      the effective date specified in such Assignment Agreement: (i)
      the
      assignee thereunder shall have the rights and obligations of a “Lender”
hereunder to the extent such rights and obligations hereunder have been assigned
      to it pursuant to such Assignment Agreement and shall thereafter be a party
      hereto and a “Lender” for all purposes hereof; (ii)
      the
      assigning Lender thereunder shall, to the extent that rights and obligations
      hereunder have been assigned thereby pursuant to such Assignment Agreement,
      relinquish its rights (other than any rights which survive the termination
      hereof under Section 10.8)
      and be
      released from its obligations hereunder (and, in the case of an Assignment
      Agreement covering all or the remaining portion of an assigning Lender’s rights
      and obligations hereunder, such Lender shall cease to be a party hereto;
      provided, anything contained in any of the Credit Documents to the contrary
      notwithstanding, Issuing Bank shall continue to have all rights and obligations
      as Issuing Bank with respect to Letters of Credit issued by it until the
      cancellation or expiration of such Letters of Credit and the reimbursement
      of
      any amounts drawn thereunder); (iii)
      the
      Commitments shall be modified to reflect the Commitment of such assignee and
      any
      remaining Commitment of such assigning Lender; and (iv)
      if any
      such assignment occurs after the issuance of the Notes hereunder, the assigning
      Lender shall, upon the effectiveness of such assignment or as promptly
      thereafter as practicable, surrender its applicable Notes to Administrative
      Agent for cancellation, and thereupon new Notes shall be issued to the assignee
      and/or to the assigning Lender, with appropriate insertions, to reflect the
      new
      Commitments and/or outstanding Loans of the assignee and/or the assigning
      Lender.

     

    (g)  In
      addition to the assignments and participations permitted under the provisions
      of
      this Section 10.6,
      any
      Lender may assign and pledge all or any portion of its Loans, the other
      Obligations owed to such Lender, and its Notes to any Federal Reserve Bank
      as
      collateral security pursuant to Regulation A of the Board of Governors of the
      Federal Reserve System and any operating circular issued by such Federal Reserve
      Bank, and any Lender which is an investment fund may pledge all or any portion
      of its Notes or Loans to its trustee (unless such trustee is Highland Capital
      Management, L.P. or any of its Affiliates or Subsidiaries) in support of its
      obligations to such trustee or to its indenture trustee in support of its
      obligations to noteholders on whose behalf such indenture trustee is acting;
      provided, (i)
      no
      Lender shall, as between Company and such Lender, be relieved of any of its
      obligations hereunder as a result of any such assignment and pledge and
(ii)
      in no
      event shall such Federal Reserve Bank or trustee be considered to be a “Lender”
or be entitled to require the assigning Lender to take or omit to take any
      action hereunder.

     

    
      
         

      

      
        126

        
          

        

      

      
         

      

    

    (h)  Each
      Lender shall have the right at any time to sell one or more participations
      to
      any Person (other than Highland Capital Management, L.P. or any of its
      Affiliates or Subsidiaries) in, all or any part of its Commitments, Loans or
      Letters of Credit or participations therein or any other interest herein or
      in
      any other Obligation. The holder of any participation, other than an Affiliate
      of the Lender granting such participation, shall not be entitled to require
      such
      Lender to take or omit to take any action hereunder except action directly
      affecting (i)
      the
      extension of the regularly scheduled maturity of any portion of the principal
      amount of or interest on any Loan or fees allocated to such participation or
      (ii)
      a
      reduction of the principal amount of or the rate of interest payable on any
      Loan
      or fees (other than any waiver of any increase in the interest rate applicable
      to any Loan pursuant to Section 2.9)
      allocated to such participation (it being understood that any change to the
      definition of Leverage Ratio or in the component definitions thereof shall
      not
      constitute a reduction in any interest rate), and all amounts payable by any
      Credit Party hereunder (including amounts payable to such Lender pursuant to
      Section 2.18(c),
      Section 2.19
      or
Section 2.20)
      shall
      be determined as if such Lender had not sold such participation. Each Credit
      Party and each Lender hereby acknowledge and agree that, solely for purposes
      of
Sections 2.17
      and
Section 10.4,
      (1)
      any
      participation will give rise to a direct obligation of each Credit Party to
      the
      participant and (2)
      the
      participant shall be considered to be a “Lender”. 

     

    10.7  Independence
      of Covenants

     

    All
      covenants hereunder shall be given independent effect so that if a particular
      action or condition is not permitted by any of such covenants, the fact that
      it
      would be permitted by an exception to, or would otherwise be within the
      limitations of, another covenant shall not avoid the occurrence of a Default
      or
      an Event of Default if such action is taken or condition exists.

     

    10.8  Survival
      of Representations, Warranties and Agreements

     

    All
      representations, warranties and agreements made herein shall survive the
      execution and delivery of this Agreement and the making of any Credit Extension.
      Notwithstanding anything herein or implied by law to the contrary, the
      agreements of each Credit Party set forth in Sections 2.18(c),
      2.19,
      2.20,
      10.2
      and
10.3
      and the
      agreements of Lenders set forth in Sections 9.3,
      9.6
      and
2.17
      shall
      survive the Termination Date.

     

    10.9  No
      Waiver; Remedies Cumulative

     

    No
      failure or delay on the part of Administrative Agent or any Lender in the
      exercise of any power, right or privilege hereunder or under any other Credit
      Document shall impair such power, right or privilege or be construed to be
      a
      waiver of any default or acquiescence therein, nor shall any single or partial
      exercise of any such power, right or privilege preclude other or further
      exercise thereof or of any other power, right or privilege. The rights, powers
      and remedies given to Beneficiaries hereby are cumulative and shall be in
      addition to and independent of all rights, powers and remedies existing by
      virtue of any statute or rule of law or in any of the other Credit Documents
      or
      in any of the Hedge Agreements. Any forbearance or failure to exercise, and
      any
      delay in exercising, any right, power or remedy hereunder shall not impair
      any
      such right, power or remedy or be construed to be a waiver thereof, nor shall
      it
      preclude the further exercise of any such right, power or remedy.

     

    
      
         

      

      
        127

        
          

        

      

      
         

      

    

    10.10  Marshalling;
      Payments Set Aside

     

    Neither
      Administrative Agent nor any Lender shall be under any obligation to marshal
      any
      assets in favor of any Credit Party or any other Person or against or in payment
      of any or all of the Obligations. To the extent that any Credit Party makes
      a
      payment or payments to Administrative Agent or Lenders (or to Administrative
      Agent for the benefit of Lenders), or Administrative Agent or Lenders enforce
      any security interests or exercise their rights of setoff, and such payment
      or
      payments or the proceeds of such enforcement or setoff or any part thereof
      are
      subsequently invalidated, declared to be fraudulent or preferential, set aside
      and/or required to be repaid to a trustee, receiver or any other party under
      any
      bankruptcy law, any other state or federal law, common law or any equitable
      cause, then, to the extent of such recovery, the obligation or part thereof
      originally intended to be satisfied, and all Liens, rights and remedies therefor
      or related thereto, shall be revived and continued in full force and effect
      as
      if such payment or payments had not been made or such enforcement or setoff
      had
      not occurred, provided
      that
      with respect to calculating interest on any Obligation
      that
      is
      so reinstated, interest shall accrue from the date that such Obligation
      is
      first
      reinstated and not from the previous date of payment.

     

    10.11  Severability

     

    In
      case
      any provision herein or obligation hereunder or the Notes shall be invalid,
      illegal or unenforceable in any jurisdiction, the validity, legality and
      enforceability of the remaining provisions or obligations, or of such provision
      or obligation in any other jurisdiction, shall not in any way be affected or
      impaired thereby.

     

    10.12  Obligations
      Several; Independent Nature of Lenders’ Rights

     

    The
      obligations of 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 Credit Document, and no action taken by Lenders
      pursuant hereto or thereto, shall be deemed to constitute 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, subject to Section 9.8(b),
      each
      Lender shall be entitled to protect and enforce its rights arising out hereof
      and it shall not be necessary for any other Lender to be joined as an additional
      party in any proceeding for such purpose.

     

    10.13  Headings

     

    Section
      headings herein are included herein for convenience of reference only and shall
      not constitute a part hereof for any other purpose or be given any substantive
      effect.

     

    10.14  APPLICABLE
      LAW

     

    THIS
      AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
      GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS
      OF
      THE STATE OF NEW YORK (INCLUDING NEW YORK GENERAL OBLIGATIONS LAW SECTION
      5-1401).

     

    
      
         

      

      
        128

        
          

        

      

      
         

      

    

    10.15  CONSENT
      TO JURISDICTION AND SERVICE OF PROCESS

     

    ALL
      JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY HERETO ARISING OUT OF OR RELATING
      TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT, OR ANY OF THE OBLIGATIONS
      THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
      JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING AND
      DELIVERING THIS AGREEMENT, EACH PARTY HERETO, FOR ITSELF AND IN CONNECTION
      WITH
      ITS PROPERTIES, IRREVOCABLY (a)
      ACCEPTS
      GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH
      COURTS; (b)
      WAIVES
      ANY DEFENSE OF FORUM
      NON CONVENIENS;
      (c)
      AGREES
      THAT SERVICE OF ALL PROCESS UPON ANY CREDIT PARTY IN ANY SUCH PROCEEDING IN
      ANY
      SUCH COURT MAY BE MADE UPON SUCH CREDIT PARTY BY REGISTERED OR CERTIFIED MAIL,
      RETURN RECEIPT REQUESTED, TO THE APPLICABLE PARTY AT ITS ADDRESS PROVIDED IN
      ACCORDANCE WITH SECTION 10.1;
      (d)
      AGREES
      THAT SERVICE AS PROVIDED IN CLAUSE (c) ABOVE IS SUFFICIENT TO CONFER PERSONAL
      JURISDICTION OVER THE APPLICABLE PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT,
      AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT;
(e)
      AGREES
      THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED
      BY
      LAW OR TO BRING PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY OTHER
      JURISDICTION; AND (f)
      AGREES
      THAT THE PROVISIONS OF THIS SECTION RELATING TO JURISDICTION AND VENUE SHALL
      BE
      BINDING AND ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER NEW YORK GENERAL
      OBLIGATIONS LAW SECTION 5-1402 OR OTHERWISE.

     

    10.16  WAIVER
      OF JURY TRIAL

     

    EACH
      OF
      THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL
      OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT
      OR
      ANY OF THE OTHER CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO
      THE
      SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/COMPANY RELATIONSHIP
      THAT
      IS BEING ESTABLISHED. The scope of this waiver is intended to be
      all-encompassing of any and all disputes that may be filed in any court and
      that
      relate to the subject matter of this transaction, including contract claims,
      tort claims, breach of duty claims and all other common law and statutory
      claims. Each party hereto acknowledges that this waiver is a material inducement
      to enter into a business relationship, that each has already relied on this
      waiver in entering into this Agreement, and that each will continue to rely
      on
      this waiver in their related future dealings. Each party hereto further warrants
      and represents that it has reviewed this waiver with its legal counsel and
      that
      it knowingly and voluntarily waives its jury trial rights following consultation
      with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE
      MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER
      SPECIFICALLY REFERRING TO THIS SECTION 10.16
      AND
      EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY
      SUBSEQUENT AMENDMENTS, RESTATEMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
      TO
      THIS AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS
      OR
      AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. In the event of litigation,
      this Agreement may be filed as a written consent to a trial by the
      court.

     

    
      
         

      

      
        129

        
          

        

      

      
         

      

    

    10.17  Confidentiality

     

    Each
      Lender, Issuing Bank and Agent shall hold all non-public information obtained
      pursuant to the terms hereof in accordance with such Lender’s customary
      procedures for handling confidential information of such nature and in
      accordance with prudent lending or investing practices, it being understood
      and
      agreed by Company that in any event a Lender may make disclosures to Affiliates
      of such Lender and such Lender’s and Affiliates’ directors, officers, employees
      and agents in connection with the administration of this Agreement and the
      preservation, exercise or enforcement of the rights of the Agents and the
      Lenders under this Agreement (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) or disclosures
      reasonably required by any bona fide assignee, transferee or participant in
      connection with the contemplated assignment or transfer by such Lender of any
      Loans or any participations therein or by any direct or indirect contractual
      counterparties (or the professional advisors thereto) in swap agreements
      (provided,
      any
      such potential assignee, transferee, participant or swap counterparties and
      advisors are advised of and agree to be bound by the provisions of this
Section 10.17)
      or
      disclosures required or requested by any governmental agency or representative
      thereof or by the National Association of Insurance Commissioners or pursuant
      to
      legal process; provided,
      unless
      specifically prohibited by applicable law or court order, each Lender shall
      use
      reasonable efforts to notify Company of any request by any governmental agency
      or representative thereof (other than any such request in connection with any
      routine examination of such Lender by such governmental agency) for disclosure
      of any such non-public information prior to disclosure of such information;
      and
provided further,
      in no
      event shall any Lender be obligated or required to return any materials
      furnished by Company or any of its Subsidiaries. Notwithstanding anything to
      the
      contrary set forth herein (or in any Credit Document), each party (and each
      of
      their respective employees, representatives or other agents) may disclose to
      any
      and all persons, without limitations of any kind, the tax treatment and tax
      structure of the transactions contemplated by this Agreement and the other
      Credit Documents and all materials of any kind (including opinions and other
      tax
      analyses) that are provided to any such party relating to such tax treatment
      and
      tax structure. However, any information relating to the tax treatment or tax
      structure shall remain subject to the confidentiality provisions hereof (and
      the
      foregoing sentence shall not apply) to the extent reasonably necessary to enable
      the parties hereto, their respective Affiliates, and their and their respective
      Affiliates’ directors officers, employees and agents to comply with applicable
      securities laws. For this purpose, “tax structure” means any facts relevant to
      understanding the federal income tax treatment of the transactions contemplated
      by this Agreement and the other Credit Documents but does not include
      information relating to the identity of any of the parties hereto or any of
      their respective Affiliates.

     

    10.18  Counterparts;
      Effectiveness

     

    This
      Agreement may be executed in any number of counterparts, each of which when
      so
      executed and delivered shall be deemed an original, but all such counterparts
      together shall constitute but one and the same instrument. This Agreement shall
      become effective upon the execution of a counterpart hereof by each of the
      parties hereto and receipt by Company and Administrative Agent of written or
      telephonic notification of such execution and authorization of delivery
      thereof.

     

    
      
         

      

      
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    10.19  Maximum
      Amount

     

    It
      is the
      intention of Company 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 Credit 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 Credit Documents or in any other agreement given to secure the
      indebtedness of Company 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 Credit 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 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 hereunder or under any other Credit Document for the use, forbearance
      or detention of the indebtedness of Company evidenced hereby or by any other
      Credit Document, 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 Loans 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 shall control and supersede every other provision of all
      agreements between Holdings, Company, or any of their respective Subsidiaries
      or
      any endorser of the Notes and the Lenders.

     

    10.20  Reaffirmation
      and Grant of Security Interest

     

        (a)   Each
      Credit Party has (i)
      guarantied the Obligations and (ii) created Liens in favor of Lenders on certain
      Collateral to secure its obligations under Section 7 of the Existing Credit
      Agreement. Each Credit Party hereby acknowledges
      that
      it has reviewed the terms and provisions of this Agreement and consents to
      the
      amendment and restatement of the Existing Credit Agreement effected pursuant
      to
      this Agreement. Each Credit Party hereby (i) confirms that each Credit Document
      to which it is a party or is otherwise bound and all Collateral encumbered
      thereby will continue to guarantee or secure, as the case may be, to the fullest
      extent possible in accordance with the Credit Documents, the payment and
      performance of all Guaranteed Obligations under this Agreement and the Secured
      Obligations (as such term is defined in the Pledge and Security Agreement)
      under
      the Pledge and Security Agreement, as the case may be, including without
      limitation the payment and performance of all such Guaranteed Obligations under
      this Agreement and the Secured Obligations under the Pledge and Security
      Agreement which are joint and several obligations of each grantor now or
      hereafter existing, and (ii) grants to the Collateral Agent for the benefit
      of
      the Secured Parties a continuing Lien on and security interest in and to such
      Credit Party’s right, title and interest in, to and under all Collateral as
      collateral security for the prompt payment and performance in full when due
      of
      the Guaranteed Obligations under this Agreement and the Secured Obligations
      under the Pledge and Security Agreement (whether at stated maturity, by
      acceleration or otherwise).

     

    (b)  Each
      Credit Party acknowledges and agrees that any of the Credit Documents to which
      it is a party or otherwise bound shall continue in full force and effect and
      that all of its obligations thereunder shall be valid and enforceable and shall
      not be impaired or limited by the execution or effectiveness of the amendment
      and restatement of the Existing Credit Agreement. Each Credit Party represents
      and warrants that all representations and warranties contained in the Credit
      Documents to which it is a party or otherwise bound are true, correct and
      complete in all material respects on and as of the Effective Date to the same
      extent as though made on and as of that date, except to the extent such
      representations and warranties specifically relate to an earlier date, in which
      case they were true, correct and complete in all material respects on and as
      of
      such earlier date.

     

    
      
         

      

      
        131

        
          

        

      

      
         

      

    

    10.21  Amendment
      and Restatement

     

        It
      is the
      intention of each of the parties hereto that the Existing Credit Agreement
      be
      amended and restated so as to preserve the perfection and priority of all
      security interests securing indebtedness and obligations under the Existing
      Credit Agreement and that all Indebtedness and Obligations of Company and its
      Subsidiaries hereunder and thereunder shall be secured by the Collateral
      Documents and that this Agreement does not constitute a novation of the
      obligations and liabilities existing under the Existing Credit Agreement. In
      addition, unless specifically amended hereby, each of the Credit Documents,
      the
      Exhibits and Schedules to the Existing Credit Agreement shall continue in full
      force and effect and that, from and after the Effective Date, all references
      to
      the “Credit Agreement” contained therein shall be deemed to refer to this
      Agreement.

     

    10.22  Patriot
      Act

     

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

     

    [The
      remainder of this page is intentionally left blank.]

     

    


     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

        
          


          


          


        

      

    



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

     

    SIMMONS
      BEDDING COMPANY,

    


    


    By: /s/
      William S. Creekmuir

    Name:
      William S. Creekmuir

    Title:
      Chief Financial Officer

    


    Notice
      Address:

    Simmons
      Bedding Company

    One
      Concourse Parkway

    Suite
      800

    Atlanta,
      Georgia 30328

    Attention:
      Chief Financial Officer

    Telephone:
      770-673-2625

    Fax:
      770-392-2608

    


    With
      a copy to:

    


    Thomas
      H.
      Lee Partners, LP

    75
      State
      Street, Suite 26

    Boston,
      Massachusetts 02109

    Attention:
      Todd Abbrecht

    Telephone:
      617-227-1050

    Fax:
      617-227-3514

    


    And:

    


    Weil,
      Gotshal & Manges LLP

    200
      Crescent Court, Suite 300

    Dallas,
      Texas 75201

    Attention:
      Angela L. Fontana, Esq.

    Telephone:
      214-746-7700

    Fax:
      214-746-7777


    
      
        
        

      

      
        S-1

        
          

        

      

      
        
        

      

    


    THL-SC
      BEDDING COMPANY,

    


    


    


    By: /s/
      William S. Creekmuir

    Name:
      William S. Creekmuir

    Title:
      Chief Financial Officer

    


    Notice
      Address:

    c/o
      Simmons Company

    One
      Concourse Parkway

    Suite
      800

    Atlanta,
      Georgia 30328

    Attention:
      Chief Financial Officer

    Telephone:
      770-673-2625

    Fax:
      770-392-2608

    


    With
      a copy to:

    


    Thomas
      H.
      Lee Partners, LP

    75
      State
      Street, Suite 26

    Boston,
      Massachusetts 02109

    Attention:
      Todd Abbrecht

    Telephone:
      617-227-1050

    Fax:
      617-227-3514

    


    


    And:

    


    


    Weil,
      Gotshal & Manges LLP

    200
      Crescent Court, Suite 300

    Dallas,
      Texas 75201

    Attention:
      Angela L. Fontana, Esq.

    Telephone:
      214-746-7700

    Fax:
      214-746-7777


    
      
        
        

      

      
        S-2

        
          

        

      

      
        
        

      

    


    


    THE
      SIMMONS MANUFACTURING CO., LLC

    WORLD
      OF SLEEP OUTLETS, LLC

    SIMMONS
      CONTRACT SALES, LLC

    


    


    By:
      /s/ William S. Creekmuir

    Name:
      William S. Creekmuir

    Title:
      Chief Financial Officer

    


    Notice
      Address:

    c/o
      Simmons Company

    One
      Concourse Parkway

    Suite
      800

    Atlanta,
      Georgia 30328

    Attention:
      Chief Financial Officer

    Telephone:
      770-673-2625

    Fax:
      770-392-2608

    


    With
      a copy to:

    


    Thomas
      H.
      Lee Partners, LP

    75
      State
      Street, Suite 26

    Boston,
      Massachusetts 02109

    Attention:
      Todd Abbrecht

    Telephone:
      617-227-1050

    Fax:
      617-227-3514

    


    


    And:

    


    


    Weil,
      Gotshal & Manges LLP

    200
      Crescent Court, Suite 300

    Dallas,
      Texas 75201

    Attention:
      Angela L. Fontana, Esq.

    Telephone:
      214-746-7700

    Fax:
      214-746-7777

    



    
      
        
        

      

      
        S-3

        
          

        

      

      
        
        

      

    


    WINDSOR
      BEDDING CO., LLC

    SC
      HOLDINGS, INC.

    SLEEP
      COUNTRY USA, INC.

    


    


    By:
      /s/ William S. Creekmuir

    Name:
      William S. Creekmuir

    Title:
      Executive Vice President

    


    Notice
      Address:

    c/o
      Simmons Company

    One
      Concourse Parkway

    Suite
      800

    Atlanta,
      Georgia 30328

    Attention:
      Chief Financial Officer

    Telephone:
      770-673-2625

    Fax:
      770-392-2608

    


    With
      a copy to:

    


    Thomas
      H.
      Lee Partners, LP

    75
      State
      Street, Suite 26

    Boston,
      Massachusetts 02109

    Attention:
      Todd Abbrecht

    Telephone:
      617-227-1050

    Fax:
      617-227-3514

    


    


    And:

    


    


    Weil,
      Gotshal & Manges LLP

    200
      Crescent Court, Suite 300

    Dallas,
      Texas 75201

    Attention:
      Angela L. Fontana, Esq.

    Telephone:
      214-746-7700

    Fax:
      214-746-7777


    
      
        
        

      

      
        S-4

        
          

        

      

      
        
        

      

    


    


    DREAMWELL,
      LTD.

    SIMMONS
      CAPITAL MANAGEMENT, LLC

    


    


    By:
      /s/ David A. Liskow

    Name:
      David A. Liskow

    Title:
      Secretary and Controller

    


    Notice
      Address:

    c/o
      Simmons Company

    One
      Concourse Parkway

    Suite
      800

    Atlanta,
      Georgia 30328

    Attention:
      Chief Financial Officer

    Telephone:
      770-673-2625

    Fax:
      770-392-2608

    


    With
      a copy to:

    


    Thomas
      H.
      Lee Partners, LP

    75
      State
      Street, Suite 26

    Boston,
      Massachusetts 02109

    Attention:
      Todd Abbrecht

    Telephone:
      617-227-1050

    Fax:
      617-227-3514

    


    


    And:

    


    


    Weil,
      Gotshal & Manges LLP

    200
      Crescent Court, Suite 300

    Dallas,
      Texas 75201

    Attention:
      Angela L. Fontana, Esq.

    Telephone:
      214-746-7700

    Fax:
      214-746-7777


    
      
        
        

      

      
        S-5

        
          

        

      

      
        
        

      

    


    GOLDMAN
      SACHS CREDIT PARTNERS L.P.,

    individually,
      as Sole Bookrunner, Lead Arranger, Syndication Agent and as Lender

    


    


    By:
      /s/ Elizabeth Fischer

    Authorized
      Signatory

    


    


    Notice
      Address:

    


    Goldman
      Sachs Credit Partners L.P.

    c/o
      Goldman, Sachs & Co.

    85
      Broad
      Street

    New
      York,
      New York 10004

    Attn:
      Elizabeth Fischer

    Telecopy:
      (212) 357-0932

    



    
      
        
        

      

      
        S-6

        
          

        

      

      
        
        

      

    


    [Page
      intentionally left blank]

     

    


    



    
      
        
        

      

      
        S-7

        
          

        

      

      
        
        

      

    


    DEUTSCHE
      BANK AG, NEW YORK BRANCH,

    as
      Administrative Agent

    


     

    By:
/s/
      Scottye Lindsey

         
      Name:  Scottye Lindsey

    Title: 
      Director

    


    


    By: /s/
      David Mayhew

         
      Name:  David Mayhew

         
      Title:  Managing Director

    


    


    Notice
      Address:

    60
      Wall
      Street, 2nd fl.

    New
      York,
      New York 10005

    Attn:
      Scottye Lindsey

    Telecopy:
      (212) 797-5690

    


    


    DEUTSCHE
      BANK A.G., CAYMAN ISLANDS

    BRANCH,

    individually
      as a Lender

    


    


    By:
      /s/ Mary Kay Coyle

    Name: Mary
      Kay
      Coyle

         
      Title:  Managing Director

    


    


    By: /s/
      David Mayhew

         
      Name:  David Mayhew

         
      Title:  Managing Director

    


    


    Notice
      Address:

    60
      Wall
      Street, 2nd fl.

    New
      York,
      New York 10005

    Attn:
      Scottye Lindsey

    Telecopy:
      (212) 797-5690

    


     

    



    
      
        
        

      

      
        S-8

        
          

        

      

      
        
        

      

    


    GENERAL
      ELECTRIC CAPITAL CORPORATION,

    as
      Co-Documentation Agent and a Lender

     

    By:
      /s/ Robert M. Kadlick

     
    Name:
      Robert
      Kadlick

     
    Title:
      Duly
      Authorized Signatory

    


    


    Notice
      Address:

    201
      Merritt 7   

    Norwalk,
      CT  06856

    Attn:
      Eric Berwin

    Facsimile:
      203-956-4003


    
      
        
        

      

      
        S-9

        
          

        

      

      
        
        

      

    


    CIT
      LENDING SERVICES CORPORATION,

    as
      Co-Documentation Agent and a Lender

     

    By:
      /s/ John D. Crawford

         
Name: 
      John D. Crawford

         
      Title:  Vice President

    


    


    Notice
      Address:

    CIT/Global
      Sponsor Finance

    1
      CIT
      Drive, 2nd Floor

    Livingston,
      New Jersey 07039

    Attn:
      John D. Crawford, Director

    Telephone:
      (973) 740-5554

    Facsimile:
      (973) 740-5721

    


    with
      a
      copy to:

    


    CIT/Global
      Sponsor Finance Legal Dept.

    505
      Fifth
      Avenue

    5th
      Floor

    New
      York,
      NY 10017

    Attn:
      Barbara Habhab,

    Vice
      President 

    Telephone:
      (212) 771-9507

    Facsimile:
      (212) 771-9520


    
      
         

      

      
        S-10