Exhibit 10.6


 


	
   

  



$430,000,000


 


CREDIT AGREEMENT


 


Dated as of November 10,
2006,


 


Among


 


GENERAC ACQUISITION CORP.,


 


GPS CCMP MERGER CORP.,


 


THE LENDERS PARTY HERETO,


 


JPMORGAN CHASE BANK, N.A.,

as Administrative Agent,


 


GOLDMAN SACHS CREDIT
PARTNERS L.P.,

as Syndication Agent,


 


and


 


BARCLAYS BANK PLC,


 


as Documentation Agent


 


and


 


WILMINGTON TRUST COMPANY,


as Collateral Agent


 


	
  GOLDMAN SACHS CREDIT
  PARTNERS L.P.

  	
  J.P. MORGAN SECURITIES INC.

  



as Joint Lead Arrangers and as Joint
Bookrunners


 


	
   

  



 

















 


TABLE
OF CONTENTS


 


	
   

  	
  Page

  
	
   

  
	
  ARTICLE I

  
	
   

  
	
  Definitions

  
	
   

  
	
  SECTION 1.01.

  	
  Defined
  Terms

  	
  1

  
	
  SECTION 1.02.

  	
  Terms
  Generally

  	
  31

  
	
  SECTION 1.03.

  	
  Effectuation
  of Transactions

  	
  31

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
   

  
	
  The Credits

  
	
   

  
	
  SECTION 2.01.

  	
  Commitments

  	
  31

  
	
  SECTION 2.02.

  	
  Loans and
  Borrowings

  	
  31

  
	
  SECTION 2.03.

  	
  Requests
  for Borrowings

  	
  32

  
	
  SECTION 2.04.

  	
  Reserved

  	
  33

  
	
  SECTION 2.05.

  	
  Reserved

  	
  33

  
	
  SECTION 2.06.

  	
  Funding
  of Borrowings

  	
  33

  
	
  SECTION 2.07.

  	
  Interest
  Elections

  	
  33

  
	
  SECTION 2.08.

  	
  Termination
  and Reduction of Commitments

  	
  34

  
	
  SECTION 2.09.

  	
  Repayment
  of Loans; Evidence of Debt

  	
  34

  
	
  SECTION 2.10.

  	
  Repayment
  of Term Loans

  	
  35

  
	
  SECTION 2.11.

  	
  Prepayment
  of Loans

  	
  35

  
	
  SECTION 2.12.

  	
  Fees

  	
  36

  
	
  SECTION 2.13.

  	
  Interest

  	
  36

  
	
  SECTION 2.14.

  	
  Alternate
  Rate of Interest

  	
  37

  
	
  SECTION 2.15.

  	
  Increased
  Costs

  	
  37

  
	
  SECTION 2.16.

  	
  Break
  Funding Payments

  	
  38

  
	
  SECTION 2.17.

  	
  Taxes

  	
  38

  
	
  SECTION 2.18.

  	
  Payments
  Generally; Pro Rata Treatment; Sharing of Set-offs

  	
  40

  
	
  SECTION 2.19.

  	
  Mitigation
  Obligations; Replacement of Lenders

  	
  41

  
	
  SECTION 2.20.

  	
  Illegality

  	
  42

  
	
  SECTION 2.21.

  	
  Incremental
  Extensions of Credit

  	
  42

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
   

  
	
  Representations and Warranties

  
	
   

  
	
  SECTION 3.01.

  	
  Organization;
  Powers

  	
  43

  
	
  SECTION 3.02.

  	
  Authorization

  	
  43

  
	
  SECTION 3.03.

  	
  Enforceability

  	
  44

  
	
  SECTION 3.04.

  	
  Governmental
  Approvals

  	
  44

  
	
  SECTION 3.05.

  	
  Financial
  Statements

  	
  44

  
	
  SECTION 3.06.

  	
  No
  Material Adverse Effect

  	
  45

  
	
  SECTION 3.07.

  	
  Title to
  Properties; Possession Under Leases

  	
  45

  
	
  SECTION 3.08.

  	
  Subsidiaries

  	
  45

  
	
  SECTION 3.09.

  	
  Litigation;
  Compliance with Laws

  	
  45

  



 


i

















 


	
  SECTION 3.10.

  	
  Investment
  Company Act

  	
  45

  
	
  SECTION 3.11.

  	
  Use of
  Proceeds

  	
  46

  
	
  SECTION 3.12.

  	
  Federal
  Reserve Regulations

  	
  46

  
	
  SECTION 3.13.

  	
  Tax
  Returns

  	
  46

  
	
  SECTION 3.14.

  	
  No
  Material Misstatements

  	
  46

  
	
  SECTION 3.15.

  	
  Employee
  Benefit Plans

  	
  47

  
	
  SECTION 3.16.

  	
  Environmental
  Matters

  	
  47

  
	
  SECTION 3.17.

  	
  Security
  Documents

  	
  48

  
	
  SECTION 3.18.

  	
  Solvency

  	
  48

  
	
  SECTION 3.19.

  	
  Labor
  Matters

  	
  49

  
	
  SECTION 3.20.

  	
  Insurance

  	
  49

  
	
  SECTION 3.21.

  	
  Transaction Documents

  	
  49

  
	
  SECTION 3.22.

  	
  Patriot
  Act

  	
  49

  
	
  SECTION 3.23.

  	
  No
  Default

  	
  49

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  
	
   

  
	
  Conditions of Lending

  
	
   

  
	
  SECTION 4.01.

  	
  Conditions

  	
  50

  
	
  SECTION 4.02.

  	
  Additional Conditions

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
   

  
	
  Affirmative Covenants

  
	
   

  
	
  SECTION 5.01.

  	
  Existence;
  Businesses and Properties

  	
  53

  
	
  SECTION 5.02.

  	
  Insurance

  	
  53

  
	
  SECTION 5.03.

  	
  Taxes

  	
  54

  
	
  SECTION 5.04.

  	
  Financial
  Statements, Reports, etc.

  	
  54

  
	
  SECTION 5.05.

  	
  Litigation
  and Other Notices

  	
  56

  
	
  SECTION 5.06.

  	
  Compliance
  with Laws

  	
  56

  
	
  SECTION 5.07.

  	
  Maintaining
  Records; Access to Properties and Inspections

  	
  56

  
	
  SECTION 5.08.

  	
  Compliance
  with Environmental Laws

  	
  57

  
	
  SECTION 5.09.

  	
  Further
  Assurances; Mortgages

  	
  57

  
	
  SECTION 5.10.

  	
  Fiscal
  Year; Accounting

  	
  59

  
	
  SECTION 5.11.

  	
  Maintenance
  of Ratings

  	
  59

  
	
  SECTION 5.12.

  	
  Interest
  Rate Protection

  	
  59

  
	
  SECTION 5.13.

  	
  Use of
  Proceeds

  	
  59

  
	
  SECTION 5.14.

  	
  Certification
  of Public Information

  	
  59

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  
	
   

  
	
  Negative Covenants

  
	
   

  
	
  SECTION 6.01.

  	
  Indebtedness

  	
  60

  
	
  SECTION 6.02.

  	
  Liens

  	
  62

  
	
  SECTION 6.03.

  	
  Sale and
  Lease-Back Transactions

  	
  65

  
	
  SECTION 6.04.

  	
  Investments,
  Loans and Advances

  	
  66

  
	
  SECTION 6.05.

  	
  Mergers,
  Consolidations, Sales of Assets and Acquisitions

  	
  67

  
	
  SECTION 6.06.

  	
  Dividends
  and Distributions

  	
  70

  



 


ii

















 


	
  SECTION 6.07.

  	
  Transactions
  with Affiliates

  	
  72

  
	
  SECTION 6.08.

  	
  Business
  of Holdings, the Borrower and the Subsidiaries

  	
  73

  
	
  SECTION 6.09.

  	
  Limitation on Modifications of Indebtedness;
  Modifications of Certificate of Incorporation, By-Laws and Certain Other
  Agreements; etc.

  	
  74

  
	
  SECTION 6.10.

  	
  Total
  Leverage Ratio

  	
  76

  
	
  SECTION 6.11.

  	
  Swap
  Agreements

  	
  76

  
	
  SECTION 6.12.

  	
  Capital
  Expenditures

  	
  76

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  
	
   

  
	
  Events of Default

  
	
   

  
	
  SECTION 7.01.

  	
  Events of
  Default

  	
  77

  
	
  SECTION 7.02.

  	
  Holdings’s
  Right to Cure

  	
  80

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  
	
   

  
	
  The Agents

  
	
   

  
	
  SECTION 8.01.

  	
  Appointment

  	
  80

  
	
  SECTION 8.02.

  	
  Delegation
  of Duties

  	
  81

  
	
  SECTION 8.03.

  	
  Exculpatory
  Provisions

  	
  81

  
	
  SECTION 8.04.

  	
  Reliance
  by Administrative Agent

  	
  81

  
	
  SECTION 8.05.

  	
  Notice of
  Default

  	
  82

  
	
  SECTION 8.06.

  	
  Non-Reliance
  on Agents and Other Lenders

  	
  82

  
	
  SECTION 8.07.

  	
  Indemnification

  	
  82

  
	
  SECTION 8.08.

  	
  Agent in
  Its Individual Capacity

  	
  83

  
	
  SECTION 8.09.

  	
  Successor
  Agent

  	
  83

  
	
  SECTION 8.10.

  	
  Syndication
  Agent and Documentation Agent

  	
  83

  
	
  SECTION 8.11.

  	
  Withholding
  Tax

  	
  83

  
	
  SECTION 8.12.

  	
  Collateral
  Matters, Collateral Agent’s Duties

  	
  83

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  
	
   

  
	
  Miscellaneous

  
	
   

  
	
  SECTION 9.01.

  	
  Notices

  	
  84

  
	
  SECTION 9.02.

  	
  Survival
  of Agreement

  	
  85

  
	
  SECTION 9.03.

  	
  Binding
  Effect

  	
  85

  
	
  SECTION 9.04.

  	
  Successors
  and Assigns

  	
  85

  
	
  SECTION 9.05.

  	
  Expenses;
  Indemnity

  	
  88

  
	
  SECTION 9.06.

  	
  Right of
  Set-off

  	
  90

  
	
  SECTION 9.07.

  	
  Applicable
  Law

  	
  90

  
	
  SECTION 9.08.

  	
  Waivers;
  Amendment

  	
  90

  
	
  SECTION 9.09.

  	
  Interest
  Rate Limitation

  	
  92

  
	
  SECTION 9.10.

  	
  Entire
  Agreement

  	
  92

  
	
  SECTION 9.11.

  	
  WAIVER OF
  JURY TRIAL

  	
  92

  
	
  SECTION 9.12.

  	
  Severability

  	
  92

  
	
  SECTION 9.13.

  	
  Counterparts

  	
  93

  
	
  SECTION 9.14.

  	
  Headings

  	
  93

  
	
  SECTION 9.15.

  	
  Jurisdiction;
  Consent to Service of Process

  	
  93

  



 


iii

















 


	
  SECTION 9.16.

  	
  Confidentiality

  	
  93

  
	
  SECTION 9.17.

  	
  Release
  of Liens and Guarantees

  	
  94

  
	
  SECTION 9.18.

  	
  USA
  PATRIOT Act

  	
  94

  
	
  SECTION 9.19.

  	
  Marshalling;
  Payments Set Aside

  	
  94

  
	
  SECTION 9.20.

  	
  Obligations
  Several; Independent Nature of Lenders’ Rights

  	
  95

  
	
  SECTION 9.21.

  	
  Electronic
  Execution of Assignments

  	
  95

  



 


	
  Exhibits and Schedules

  
	
   

  	
   

  
	
  Exhibit A

  	
  Form of Assignment and Acceptance

  
	
  Exhibit B

  	
  Form of Administrative Questionnaire

  
	
  Exhibit C

  	
  Form of Borrowing Request

  
	
  Exhibit D

  	
  Form of Interest Election Request

  
	
  Exhibit E

  	
  Form of Collateral Agreement

  
	
  Exhibit F

  	
  Form of Solvency Certificate

  
	
  Exhibit G

  	
  Form of Subordination Provisions

  
	
  Exhibit H

  	
  Form of Intercompany Note

  
	
  Exhibit I

  	
  Form of Compliance Certificate

  
	
   

  	
   

  
	
  Schedule 2.01

  	
  Commitments

  
	
  Schedule 3.04

  	
  Governmental Approvals

  
	
  Schedule 3.08(a)

  	
  Subsidiaries

  
	
  Schedule 3.17

  	
  Financing Statements and Other Filings

  
	
  Schedule 3.20

  	
  Insurance

  
	
  Schedule 5.09

  	
  Mortgaged Properties

  
	
  Schedule 6.01

  	
  Indebtedness

  
	
  Schedule 6.02(a)

  	
  Liens

  
	
  Schedule 6.04

  	
  Investments

  
	
  Schedule 6.07

  	
  Transactions with Affiliates

  



 


iv

















 


CREDIT
AGREEMENT dated as of November 10, 2006 (this “Agreement”), among GPS
CCMP MERGER CORP., a Wisconsin corporation (the “Company”), GENERAC
ACQUISITION CORP., a Delaware corporation (“Holdings”), the LENDERS
party hereto from time to time, JPMORGAN CHASE BANK, N.A., as administrative
agent (in such capacity, the “Administrative Agent”), J.P. MORGAN
SECURITIES INC., as syndication agent (in such capacity, the “Syndication
Agent”), BARCLAYS BANK PLC, as documentation agent (in such capacity, the “Documentation
Agent”), WILMINGTON TRUST COMPANY, as collateral agent (and its successors
and assigns in such capacity, the “Collateral Agent”) and GOLDMAN SACHS
CREDIT PARTNERS L.P. and J.P. MORGAN SECURITIES INC. as joint lead arrangers
and joint bookrunners (in such capacities, the “Joint Lead Arrangers”).


 


Pursuant
to and in connection with the Merger Agreement (with such term and each other
capitalized term used but not defined in this preamble having the meaning
assigned thereto in Article I) and the transactions contemplated
thereby, (a) the First Lien Financing will be consummated, (b) the
Merger will be consummated in accordance with the terms of the Merger Agreement
and (c) the Transaction Costs will be paid.


 


The
Borrower has requested that the Lenders extend credit in the form of Term Loans
on the Closing Date in an aggregate principal amount of $430.0 million.


 


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


 


ARTICLE
I


 


Definitions


 


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


 


“ABR”
shall mean for any day, a rate per annum equal to the greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective Rate
in effect on such day plus 1⁄2 of 1%.  For
purposes hereof: “Prime Rate” shall mean the rate of interest per annum
determined from time to time by JPMorgan Chase Bank, N.A. as its prime rate in
effect at its principal office in New York, City and notified to the Borrower
(the Prime Rate not being intended to be the lowest rate of interest charged by
JPMorgan Chase Bank, N.A. in connection with extensions of credit to
debtors).  Any change in the ABR due to a
change in the Prime Rate or the Federal Funds Effective Rate shall be effective
as of the opening of business on the effective day of such change in the Prime
Rate or the Federal Funds Effective Rate, respectively.


 


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


 


“ABR
Loan” shall mean any ABR Term Loan.


 


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


 


“Additional
Lender” shall have the meaning assigned to such term in Section 2.21.


 

















 


“Adjusted
LIBO Rate” shall mean, with respect to any Eurocurrency Borrowing for any
Interest Period, an interest rate per annum equal to (a) the LIBO Rate in
effect for such Interest Period divided by (b) one minus the Statutory
Reserves applicable to such Eurocurrency Borrowing, if any.


 


“Administrative
Agent” shall have the meaning assigned to such term in the introductory
paragraph of this Agreement.


 


“Administrative
Agent Fee Letter” shall mean the Fee Letter dated November 9, 2006
between the Borrower and the Administrative Agent.


 


“Administrative
Agent Fees” shall have the meaning assigned to such term in Section 2.12(a).


 


“Administrative
Questionnaire” shall mean an Administrative Questionnaire in the form of Exhibit B.


 


“Affected
Lender” shall have the meaning assigned to such term in Section 2.20.


 


“Affiliate”
shall mean, when used with respect to a specified person, another person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the person specified; provided,
however, no Agent or Lender shall be deemed to be an Affiliate of any
Loan Party by virtue of its execution of this Agreement.


 


“Agents”
shall mean the Administrative Agent, the Syndication Agent, the Collateral
Agent and the Documentation Agent.


 


“Agreement”
shall have the meaning assigned to such term in the introductory paragraph of
this Agreement.


 


“Applicable
Margin” shall mean for any day with respect to any Term Loan, 6.00% in the
case of any Eurocurrency Loan and 5.00% in the case of any ABR Loan.


 


“Assignment
and Acceptance” shall mean an assignment and acceptance entered into by a
Lender and an assignee, and accepted by the Administrative Agent and the
Borrower (if the Borrower’s consent is required by this Agreement), in the form
of Exhibit A or such other form as shall be approved by the Administrative
Agent.


 


“Available
Basket Amount” at any date of determination, an amount (to the extent not
otherwise applied prior to such date) equal to:


 


(a)  the sum of (i) the
Available Excess Cash Flow Amount, (ii) the cumulative amount of cash
proceeds from the sale of Qualified Capital Stock of the Borrower after the
Closing Date the proceeds of which have been received by the Borrower (other
than such proceeds used for the purpose specified in Section 6.09(b) or
for any Specified Equity Contribution) and (iii) the aggregate amount of
Below Threshold Net Proceeds, minus


 


(b)  the sum at the
time of determination of:


 


(i)                                     any amounts
thereof used to make (A) Investments pursuant to Section 6.04(b) and
(q) and (B) expenditures that would be Capital Expenditures but
for paragraph (a) of the proviso to the definition thereof after the
Closing Date and on or prior to the date of determination, and


 


2

















 


(ii)                                  the cumulative
amount of dividends paid and distributions made pursuant to Section 6.06(e)(ii)
(without duplication of amounts paid by the Borrower to Holdings which are then
further distributed by Holdings under said section) after the Closing Date and
on or prior to the date of determination.


 


“Available
Excess Cash Flow Amount” shall mean, at any date of determination, (a) 
the sum of the amounts of Excess Cash Flow for all Excess Cash Flow Periods
ending on or prior to such date minus (b) the sum at such date of (i) the
aggregate amount of prepayments required to be made pursuant to Section 2.11(c) of
the First Lien Credit Agreement through the date of determination and (ii) the
aggregate amount of Voluntary Prepayments of First Lien Indebtedness and
Voluntary Prepayments of Second Lien Indebtedness made for all Excess Cash Flow
Periods ending on or prior to the date of determination; provided that,
in the case of any Excess Cash Flow Period which has been completed and in
respect of which the amount of Excess Cash Flow shall have been calculated as
contemplated by Section 5.04(c) but the prepayment required
pursuant to Section 2.11(c) of the First Lien Credit Agreement
is not yet due and payable in accordance with the provisions of Section 2.11(c) of
the First Lien Credit Agreement as of such date of determination, then the
amount of Excess Cash Flow for such Excess Cash Flow Period and the amount of
prepayments that will be so required to be made in respect of such Excess Cash
Flow shall be included for purposes of this definition.


 


“Below
Threshold Net Proceeds” shall mean cash proceeds received by the Borrower
or any of its Restricted Subsidiaries, which in any fiscal year do not exceed
$5.0 million and which otherwise would constitute Net Proceeds.


 


“Board”
shall mean the Board of Governors of the Federal Reserve System of the United
States of America, or any successor thereto.


 


“Borrower”
shall mean, initially the Company, and after giving effect to the Transactions
on the Closing Date, Generac.


 


“Borrowing”
shall mean a group of Loans of a single Type under the Facility and made on a
single date and, in the case of Eurocurrency Loans, as to which a single
Interest Period is in effect.


 


“Borrowing
Minimum” shall mean $1.0 million.


 


“Borrowing
Multiple” shall mean $500,000.


 


“Borrowing
Request” shall mean a request by the Borrower in accordance with the terms
of Section 2.03 and, if written, substantially in the form of Exhibit C-1.


 


“Budget”
shall have the meaning assigned to such term in Section 5.04(e).


 


“Business
Day” shall mean any day that is not a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law or
other governmental action to remain closed; provided that when used in
connection with a Eurocurrency Loan, the term “Business Day” shall also
exclude any day on which banks are not open for dealings in deposits in Dollars
in the London interbank market.


 


“Capital
Expenditures”:  in respect of any
period, the aggregate of all expenditures incurred by the Borrower and its
Restricted Subsidiaries during such period that, in accordance with GAAP, are
required to be classified as capital expenditures, including Capital Lease
Obligations incurred, 


 


3

















 


provided, however, that Capital Expenditures for the
Borrower and the Restricted Subsidiaries shall not include:


 


(a)  expenditures to
the extent they are made with proceeds of the Available Basket Amount,


 


(b)  expenditures of
proceeds of insurance settlements, condemnation awards and other settlements in
respect of lost, destroyed, damaged or condemned assets, equipment or other
property to the extent such expenditures are made to replace or repair such
lost, destroyed, damaged or condemned assets, equipment or other property or
otherwise to acquire, maintain, develop, construct, improve, upgrade or repair
assets or properties useful in the business of the Borrower and its Restricted
Subsidiaries within 12 months of receipt of such proceeds,


 


(c)  expenditures
that are accounted for as capital expenditures of such person and that actually
have been paid for by a third party (other than the Borrower or any Restricted
Subsidiary thereof) and for which neither the Borrower nor any Restricted
Subsidiary has provided or is required to provide or incur, directly or
indirectly, any consideration or obligation to such third party or any other
person (whether before, during or after such period),


 


(d)  the book value
of any asset owned by such person prior to or during such period to the extent
that such book value is included as a capital expenditure during such period as
a result of such person reusing or beginning to reuse such asset during such
period without a corresponding expenditure actually having been made in such
period, provided that (i) any expenditure necessary in order to
permit such asset to be reused shall be included as a Capital Expenditure
during the period that such expenditure actually is made and (ii) such
book value shall have been included in Capital Expenditures when such asset was
originally acquired,


 


(e)  the purchase
price of equipment or property purchased during such period to the extent the
consideration therefor consists of any combination of (i) used or surplus
equipment or property traded in at the time of such purchase and (ii) the
proceeds of a reasonably concurrent sale of used or surplus equipment or
property, in each case, in the ordinary course of business,


 


(f)  expenditures
that are accounted for as capital expenditures in connection with transactions
constituting Permitted Business Acquisitions, or


 


(g)  expenditures
under vendor agreements that are satisfied through non-cash means including the
delivery of product.


 


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


 


“Cash
Interest Expense” shall mean, with respect to the Borrower and its
Restricted Subsidiaries on a consolidated basis for any period Interest Expense
paid in cash for such Period.


 


“CCMP”
shall mean CCMP Capital Advisors, LLC.


 


“Change
in Control” shall mean:


 


4

















 


(a)  the acquisition
of record ownership or direct beneficial ownership (i.e., excluding indirect
beneficial ownership through intermediate entities by any person which is the
subject of clause (b) and (c) below) by any person other than
Holdings (or another Parent Entity that has become a Loan Party) of any Equity
Interests in the Borrower, such that after giving effect thereto Holdings (or
another Parent Entity that has become a Loan Party) shall cease to beneficially
own and control 100% of the Equity Interests of the Company,


 


(b)  prior to a
Qualified IPO, the failure by the Permitted Investors to beneficially own,
directly or indirectly, Equity Interests of Holdings (or another Parent Entity
that has become a Loan Party) representing at least 50% of the aggregate
ordinary voting power and economic interest represented by the issued and
outstanding Equity Interests in Holdings (or another Parent Entity that has a
become a Loan Party),


 


(c)  after a
Qualified IPO, (i) the acquisition of beneficial ownership, directly or
indirectly, by any person or group (within the meaning of the Securities
Exchange Act of 1934, as amended, and the rules of the SEC thereunder as
in effect on the date hereof), other than the Permitted Investors, of Equity
Interests in Holdings representing more than 35% of the aggregate ordinary voting
power represented by the issued and outstanding Equity Interests in Holdings
and (ii) the beneficial ownership, directly or indirectly, by the
Permitted Investors of Equity Interests in Holdings representing in the
aggregate a lesser percentage of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests in Holdings than
such person or group, or


 


(d)  occupation of a
majority of the seats (other than vacant seats) on the board of managers (or
equivalent governing body) of Holdings, by persons who were not nominated or
appointed by such board of managers (or equivalent governing body) or by the
Permitted Investors, directly or indirectly (including pursuant to any
agreement among equity holders of Holdings or any other Parent Entity).


 


“Change
in Law” shall mean (a) the adoption of any law, rule or
regulation after the Closing Date, (b) any change in law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the Closing Date or (c) compliance by any Lender (or, for
purposes of Section 2.15(b), by any Lending Office of such Lender
or by such Lender’s holding company, if any) with any written request,
guideline or directive (whether or not having the force of law) of any Governmental
Authority made or issued after the Closing Date.


 


“Change
in Working Capital” shall mean, with respect to the Borrower and the
Restricted Subsidiaries on a consolidated basis at any date of determination,
the amount of Changes in Current Assets and Liabilities; provided that,
Changes in Working Capital shall be calculated without regard to any Changes in
Current Assets and Liabilities as a result of (a) any reclassification in
accordance with GAAP of assets or liabilities, as applicable, between current
and noncurrent, (b) the effects of purchase accounting or (c) the
effect of fluctuations in the amount of accrued or contingent obligations under
Swap Agreements.


 


“Changes
in Current Assets and Liabilities” shall mean the sum of those amounts that
comprise the changes in the current assets (excluding cash and cash equivalents
(including Permitted Investments) and deferred tax accounts) and current
liabilities section of the Borrower’s statement of cash flows as prepared on a
consolidated basis excluding tax accruals and deferred taxes.


 


“Charges”
shall have the meaning assigned to such term in Section 9.09.


 


5














 


“Closing
Date” shall mean November 10, 2006.


 


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


 


“Documentation
Agent” shall have the meaning assigned to such term in the introductory
paragraph of this Agreement.


 


“Collateral”
shall mean all the “Collateral” as defined in any Security Document and shall
also include the Mortgaged Properties, if any.


 


“Collateral
Agent” shall mean Wilmington Trust Company or any other financial
institution then acting as Collateral Agent under the Second Lien Loan
Documents.


 


“Collateral
Agent Fees” shall have the meaning assigned to such term in Section 2.12(a).


 


“Collateral
Agreement” shall mean the Second Lien Guarantee and Collateral Agreement,
as amended, supplemented or otherwise modified from time to time, in the form
of Exhibit E, among Holdings, the Borrower, each Subsidiary Loan Party and
the Administrative Agent.


 


“Collateral
and Guarantee Requirement” shall mean the requirement that:


 


(a)  on the Closing Date, the Administrative Agent
shall have received (I) from Holdings, the Borrower and each Subsidiary
Loan Party, a counterpart of the Collateral Agreement duly executed and
delivered on behalf of such person and (II) an Acknowledgment and Consent
in the form attached to the Collateral Agreement, executed and delivered by
each issuer of Pledged Collateral (as defined in the Collateral Agreement), if
any, that is a Loan Party,


 


(b)  on the Closing Date or as otherwise provided
in the Collateral Agreement, the Collateral Agent for the benefit of the
Secured Parties shall have received (I) a pledge of all the issued and
outstanding Equity Interests of (A) the Borrower and (B) each
Domestic Subsidiary which is a Restricted Subsidiary owned on the Closing Date
directly by or on behalf of Holdings, the Borrower or any Subsidiary Loan
Party; (II) a pledge of 65% of the outstanding Equity Interests of each “first
tier” Foreign Subsidiary directly owned by Holdings, the Borrower or a
Subsidiary Loan Party; and (III) all certificates or other instruments (if
any) representing such Equity Interests, together with stock powers or other
instruments of transfer with respect thereto endorsed in blank,


 


(c)  on the Closing Date, all Indebtedness having,
in the case of each instance of Indebtedness, an aggregate principal amount in
excess of $5.0 million (other than (i) intercompany current liabilities
incurred in the ordinary course of business in connection with the cash
management operations of Holdings and its Subsidiaries or (ii) to the
extent that a pledge of such promissory note or instrument would violate
applicable law) that is owing to any Loan Party and evidenced by a promissory
note or an instrument and shall have been pledged pursuant to the Collateral
Agreement, and the Collateral Agent for the benefit of the Secured Parties
shall have received all such promissory notes or instruments, together with
note powers or other instruments of transfer with respect thereto endorsed in
blank,


 


(d)  on the Closing Date, the Borrower shall grant
to the Collateral Agent security interests and mortgages in the Mortgaged
Property referred to in Schedule 5.09 owned on the date hereof pursuant to a
Mortgage, record or file, the Mortgage in such manner and in such places as is
required by law to establish, perfect, preserve and protect the Liens pursuant
to the Mortgages 


 


6

















 


and pay, all Taxes, fees and
other charges payable in connection therewith. 
Unless otherwise waived by the Administrative Agent, with respect to
each such Mortgage, the Borrower shall deliver to the Administrative Agent
contemporaneously therewith (A) a policy or policies or marked-up
unconditional binder of title insurance or foreign equivalent thereof, as
applicable, paid for by the Borrower, issued by a nationally recognized title
insurance company insuring the Lien of each such Mortgage as a valid first Lien
on the Mortgaged Property described therein, free of any other Liens except as
permitted by Section 6.02, together with such endorsements,
coinsurance and reinsurance as the Administrative Agent may reasonably request
and (B) the legal opinions of local U.S. counsel in the state where such
Mortgaged Property is located, in form and substance reasonably satisfactory to
the Administrative Agent,


 


(e)  on the Closing Date, or as otherwise provided
in the Collateral Agreement, the Collateral Agent for the benefit of the
Secured Parties, shall have been granted security interests in personal
property of Holdings, the Borrower or any such Subsidiary Loan Parties in
accordance with the Collateral Agreement,


 


(f)  in the case of any person that becomes a
Subsidiary Loan Party after the Closing Date, the Administrative Agent shall
have received a supplement to the Collateral Agreement, in the form specified
therein, duly executed and delivered on behalf of such Subsidiary Loan Party,


 


(g)  after the Closing Date, (A) all the
outstanding Equity Interests of any person that becomes a Subsidiary Loan Party
after the Closing Date, (B) all the Equity Interests of Borrower issued
after the Closing Date and (C) subject to Section 5.09(g) and
Section 6.02(w), all other Equity Interests of any other Subsidiary
that are acquired by a Loan Party after the Closing Date, shall have been
pledged pursuant to the Collateral Agreement (provided that in no event
shall more than 65% of the issued and outstanding Equity Interests of any “first
tier” Foreign Subsidiary directly owned by such Loan Party be pledged to secure
Obligations of any Loan Party, and in no event shall any of the issued and
outstanding Equity Interests of any Foreign Subsidiary that is not a “first
tier” Foreign Subsidiary be pledged to secure Obligations of any Loan Party),
and the Collateral Agent for the benefit of the Secured Parties shall have
received all certificates or other instruments (if any) representing such
Equity Interests, together with stock powers or other instruments of transfer
with respect thereto endorsed in blank,


 


(h)  except as disclosed on Schedule 3.04
or as otherwise contemplated by any Security Document, all documents and
instruments, including Uniform Commercial Code financing statements, required
by law or reasonably requested by the Administrative Agent to be filed,
registered or recorded to create the Liens intended to be created by the
Security Documents (in each case, including any supplements thereto) and
perfect such Liens to the extent required by, and with the priority required
by, the Security Documents, shall have been filed, registered or recorded or
delivered to the Administrative Agent for filing, registration or the recording
concurrently with, or promptly following, the execution and delivery of each
such Security Document, and


 


(i)  On the Closing Date, the Administative Agent
shall have received insurance certificates from the Borrower’s insurance broker
or other evidence reasonably satisfactory to it that all insurance required to
be maintained pursuant to Section 5.02 is in full force and effect
and such certificates shall (i) name the Collateral Agent, as collateral
agent on behalf of the Secured Parties as an additional insured thereunder as
its interests may appear and (ii) in the case of each casualty insurance
policy, contain a loss payable clause or endorsement, reasonably satisfactory
in form and substance to Administrative Agent, that, from and after the
Discharge of First Lien Obligations (as defined in the Intercreditor Agreement)
names the Collateral Agent, (as defined in 


 


7

















 


the First Lien Credit
Agreement) on behalf of Lenders (as defined in the First Lien Credit Agreement)
as the loss payee thereunder and provides for at least thirty days’ prior
written notice to the Administrative Agent and Collateral Agent, as applicable,
of any modification or cancellation of such policy.


 


“Collateral Questionnaire” shall mean a
certificate in form reasonably satisfactory to the Administrative Agent that
provides information with respect to the personal or mixed property of each
Loan Party.


 


“Commitments”
shall mean with respect to any Lender, such Lender’s Term Loan Commitment.


 


“Company”
shall have the meaning assigned to such term in the introductory paragraph of
this Agreement.


 


“Company
Competitor” shall mean any person that competes with or controls a
person that competes with the business of the Company from time to
time as notified by the Borrower to the Administrative Agent in writing.


 


“Conduit
Lender” shall mean any special purpose corporation organized and
administered by any Lender for the purpose of making Loans otherwise required
to be made by such Lender and designated by such Lender in a written
instrument; provided, that the designation by any Lender of a Conduit
Lender shall not relieve the designating Lender of any of its obligations to
fund a Loan under this Agreement if, for any reason, its Conduit Lender fails
to fund any such Loan, and the designating Lender (and not the Conduit Lender)
shall have the sole right and responsibility to deliver all consents and
waivers required or requested under this Agreement with respect to its Conduit
Lender, and provided, further, that no Conduit Lender shall (a) be
entitled to receive any greater amount pursuant to Section 2.15, 2.16,
2.17 or 9.05 than the designating Lender would have been entitled
to receive in respect of the extensions of credit made by such Conduit Lender
or (b) be deemed to have any Commitment.


 


“Consolidated
Net Income” shall mean, with respect to any person for any period, the
aggregate of the Net Income of such person and its subsidiaries for such
period, on a consolidated basis; provided, however, that, without
duplication,


 


(i)                                     any net
after-tax (A) extraordinary, (B) nonrecurring or (C) unusual
gains or losses or income or expenses (less all fees and expenses relating
thereto) including, without limitation, any severance expenses, and fees,
expenses or charges related to any offering of Equity Interests of Holdings or
the Borrower, any Investment or Indebtedness permitted to be incurred hereunder
or refinancings thereof (in each case, whether or not successful), including
any such fees, expenses or charges related to the Transactions, in each case,
shall be excluded,


 


(ii)                                  any net
after-tax income or loss from discontinued operations and any net after-tax
gain or loss on disposal of discontinued operations shall be excluded,


 


(iii)                               any net
after-tax gain or loss (less all fees and expenses or charges relating thereto)
attributable to business dispositions or asset dispositions other than in the
ordinary course of business (as determined in good faith by the board of
directors (or equivalent governing body) of the Borrower) shall be excluded,


 


(iv)                              any net
after-tax income or loss (less all fees and expenses or charges relating
thereto) attributable to the early extinguishment of indebtedness shall be
excluded,


 


8

















 


(v)                                 the Net Income
for such period of any person that is not a subsidiary of such person, or is an
Unrestricted Subsidiary, or that is accounted for by the equity method of accounting,
shall be included only to the extent of the amount of dividends or
distributions or other payments (including any ordinary course dividend,
distribution or other payment) paid in cash (or to the extent converted into
cash) to the referent person or a subsidiary thereof in respect of such period,


 


(vi)                              consolidated
Net Income for such period shall not include the cumulative effect of a change
in accounting principles during such period, and


 


(vii)                           any increase in
amortization or depreciation or any non-cash charges resulting from any
amortization, write-up, write-down or write-off of assets with respect to
assets revalued upon the application of purchase accounting (including tangible
and intangible assets, goodwill, deferred financing costs and inventory
(including any adjustment reflected in the “cost of goods sold”
or similar line item of the financial statements)) in connection with the
Transactions, Permitted Business Acquisitions or an merger, consolidation or
similar transaction not prohibited hereunder.


 


“Consolidated
Senior Secured Debt” at any date shall mean the sum of (without
duplication) (i) the principal of all Loans (as defined in the First Lien
Credit Agreement) of the Borrower and its Restricted Subsidiaries outstanding
under the First Lien Credit Agreement plus, (ii) the aggregate principal
amount of all other Indebtedness of the Borrower and its Restricted
Subsidiaries (other than the Loans) that is secured by any Lien on any asset of
the Borrower or any of its Restricted Subsidiaries, is outstanding at such time
is otherwise included in Consolidated Total Debt and which Lien is not
subordinated to the Liens securing the First Lien Indebtedness less the
unrestricted (other than to the extent constituting Collateral) cash and marketable
securities (determined in accordance with GAAP) of the Borrower and its
Restricted Subsidiaries on such date.


 


“Consolidated
Total Debt” at any date shall mean the sum of (without
duplication) (i) all Capital Lease Obligations and Indebtedness of the Borrower
and its Restricted Subsidiaries for borrowed money (excluding letters of credit
to the extent undrawn), (ii) Indebtedness in respect of the deferred
purchase price of property or services of the Borrower and its Restricted
Subsidiaries to the extent in the case of clause (ii) such Indebtedness
appears or should appear in the “liabilities” section of the consolidated
balance sheet of the Borrower and its Restricted Subsidiaries in accordance
with GAAP determined on a consolidated basis on such date less the unrestricted
(other than to the extent constituting Collateral) cash and marketable
securities (determined in accordance with GAAP) of the Borrower and its
Restricted Subsidiaries on such date.


 


“Contractual Obligation” means, as
applied to any person, any provision of any security issued by that person or
of any indenture, mortgage, deed of trust, contract, written 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.


 


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


 


“Cure
Right” shall have the meaning assigned to such term in Section 7.02(a).


 


9

















 


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


 


“Defaulting
Lender” shall mean any Lender with respect to which a Lender Default is in
effect.


 


“Disinterested
Director” shall mean, with respect to any person and transaction, a member
of the board of managers (or equivalent governing body) of such person who does
not have any material direct or indirect financial interest in or with respect
to such transaction.


 


“Disqualified
Institutions” shall mean Company Competitors and those banks,
financial institutions or other institutional lenders in each case identified
to the Administrative Agent in writing from time to time.


 


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


 


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


 


“EBITDA”
shall mean, with respect to Borrower and its Restricted Subsidiaries on a
consolidated basis for any period, the Consolidated Net Income of Borrower and
the Restricted Subsidiaries for such period plus (a) the sum of (in
each case without duplication and to the extent the respective amounts
described in subclauses (i) through (x) of this clause (a) reduced
such Consolidated Net Income for the respective period for which EBITDA is
being determined):


 


(i)                                     provision for
Taxes based on income, profits or capital of the Borrower and the Restricted
Subsidiaries for such period, including, without limitation, state, foreign,
franchise and similar taxes, and Tax Distributions made by the Borrower during
such period,


 


(ii)                                  Interest
Expense of the Borrower and the Restricted Subsidiaries for such period,


 


(iii)                               depreciation
and amortization expenses of the Borrower and its Restricted Subsidiaries for
such period,


 


(iv)                              business
optimization expenses and restructuring charges and reserves (which, for the
avoidance of doubt, shall include retention, severance, systems establishment
cost, excess pension charges, contract termination costs (including future
lease commitments) and costs to consolidate facilities and relocate employees);
provided that with respect to each business optimization expense or
restructuring charge or reserve, the Borrower shall have delivered to the
Administrative Agent a certificate of the Chief Financial Officer of the
Borrower specifying and quantifying such expense, charge or reserve and stating
that such expense, charge or reserve is a business optimization expense or
restructuring charge or reserve, as the case may be,


 


(v)                                 the amount of
management, consulting, monitoring, transaction and advisory fees and related
expenses paid to the Permitted Investors (or any accruals related to such fees
and related expenses) during such period;


 


(vi)                              Transaction
Costs, cash expenses incurred directly in connection with any Investment,
equity issuance or debt issuance or refinancings (whether or not consummated),


 


(vii)                           any non-cash
charges reducing Consolidated Net Income (excluding any such non-cash charge to
the extent it represents an accrual of or reserve for cash charges in any
future 


 


10

















 


period or amortization of a
prepaid cash expense that was paid in a prior period not included in the
calculation),


 


(viii)                        letter of
credit fees,


 


(ix)                                to the extent
actually reimbursed, expenses incurred to the extent covered by indemnification
provisions in any agreement in connection with a Permitted Business
Acquisition, and


 


(x)                                   to the extent
covered by insurance under which the insurer has been properly notified and has
not denied or contested coverage, expenses with respect to liability events, or
casualty events or business interruption,


 


minus (b) (without
duplication and to the extent the amounts described in this clause (b) increased
such Consolidated Net Income for the respective period for which EBITDA is
being determined) income tax credits and distributions and dividends pursuant
to Section 6.06(b)(i) and (iii) and all non-cash gains
increasing Consolidated Net Income of the Borrower and its Restricted
Subsidiaries for such period (but excluding any such gains (x) in respect
of which cash or other assets were received in a prior period or will be
received in a future period or (y) which represent the reversal of any
accrual of, or cash reserve for, anticipated cash charges in any prior period).


 


For
purposes of determining EBITDA under this Agreement for any period that
includes any of the fiscal quarters ended December 31, 2005, March 31,
2006, June 30, 2006 and September 30, 2006 EBITDA for such fiscal
quarters shall be deemed to be $42,800,000, $40,300,000, $67,300,000 and $56,400,000,
respectively.


 


“Eligible
Assignee” shall mean (i) any Lender, any Affiliate of any Lender and
any Related Fund (any two or more Related Funds being treated as a single
Eligible Assignee for all purposes hereof), and (ii) any commercial bank,
insurance company, investment or mutual fund or other entity that is an “accredited
investor” (as defined in Regulation D under the Securities Act) and which
extends credit or buys loans.


 


“environment”
shall mean ambient and indoor air, surface water and groundwater (including
potable water, navigable water and wetlands), the land surface or subsurface
strata, natural resources such as flora and fauna, the workplace or as
otherwise defined in any Environmental Law.


 


“Environmental
Laws” shall mean all laws (including common law), rules, regulations,
codes, ordinances, orders, decrees or judgments, promulgated or entered into by
or with any Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources, the generation, management,
Release or threatened Release of, or actual or alleged exposure to, any
Hazardous Materials or to occupational health and safety (to the extent
relating to the environment or Hazardous Materials).


 


“Equity
Interests” of any person shall mean any and all shares,
interests, participations or other equivalents of or interests in (however
designated) equity of such person, including any preferred stock, any limited
or general partnership interest and any limited liability company membership
interest and any and all warrants, rights or options to purchase or other
rights to acquire any of the foregoing.


 


“Equity
Financing” shall mean the investment by CCMP and its Affiliates, directly
or indirectly, in common equity or Qualified Capital Stock of the Borrower in
an aggregate amount in cash 


 


11

















 


equal to not less than 25% of the Pro Forma total consolidated
capitalization of the Borrower after giving effect to the Transactions on the
Closing Date.


 


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


 


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


 


“ERISA
Event” shall mean (a) any Reportable Event; (b) the existence
with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412
of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of
ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan, the failure to make by its due date a required installment
under Section 412(m) of the Code with respect to any Plan or
the failure to make any required contribution to a Multiemployer Plan; (d) the
incurrence by Holdings, the Borrower, a Subsidiary or any ERISA Affiliate of
any liability under Title IV of ERISA with respect to the termination of any
Plan; (e) the receipt by Holdings, the Borrower, a Subsidiary or any ERISA
Affiliate from the PBGC or a plan administrator of any notice relating to an
intention to terminate any Plan or to appoint a trustee to administer any Plan
under Section 4042 of ERISA; (f) the incurrence by Holdings,
the Borrower, a Subsidiary or any ERISA Affiliate of any liability with respect
to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or
(g) the receipt by Holdings, the Borrower, a Subsidiary or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan from
Holdings, the Borrower, a Subsidiary or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.


 


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


 


“Eurocurrency
Loan” shall mean any Eurocurrency Term Loan.


 


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


 


“Event
of Default” shall have the meaning assigned to such term in Section 7.01.


 


“Excess
Cash Flow” shall mean, with respect to the Borrower and its Subsidiaries on
a consolidated basis for any Excess Cash Flow Period, an amount (in any case
not less than zero) equal to (A) EBITDA of the Borrower and its
Subsidiaries on a consolidated basis for such Excess Cash Flow Period, minus,
without duplication, (B) the sum of


 


(a)  Cash Interest Expense and scheduled payments
of Indebtedness for such Excess Cash Flow Period,


 


(b)  (i) Capital Expenditures and (ii) the
aggregate consideration paid in cash during the Excess Cash Flow Period in
respect of Investments permitted under Section 6.04 (including
Permitted Business Acquisitions) to the extent such Investments are not
financed, or intended to be financed, using the proceeds of the incurrence of
long-term Indebtedness,


 


12

















 


(c)  Capital Expenditures that the Borrower or any
Restricted Subsidiary shall, during such Excess Cash Flow Period, become
obligated to make, but that are not made during such Excess Cash Flow Period, provided
that the Borrower shall deliver a certificate to the Administrative Agent in
connection with the delivery of the Excess Cash Flow certificate for such
Excess Cash Flow Period, signed by a Responsible Officer of the Borrower and
certifying that such Capital Expenditures will be completed in the first 125
days of the following Excess Cash Flow Period,


 


(d)  all Taxes based on income, profits or capital
of the Borrower and its Restricted Subsidiaries including state, foreign,
franchise and similar taxes and Tax Distributions made by the Borrower during
such Excess Cash Flow Period or that will be made within six months after the
close of such Excess Cash Flow Period, in each case, paid in cash, (provided
that any amount so deducted in respect of such Taxes or Tax Distribution that
will be made after the close of such Excess Cash Flow Period shall not be
deducted again in a subsequent Excess Cash Flow Period),


 


(e)  an amount equal to any positive Change in
Working Capital of the Borrower and its Restricted Subsidiaries for such Excess
Cash Flow Period,


 


(f)  cash expenditures made in respect of Swap
Agreements during such Excess Cash Flow Period, to the extent not reflected as
a subtraction in the computation of EBITDA (or to the extent added thereto) or
an addition to Cash Interest Expense,


 


(g)  amounts paid in cash during such Excess Cash
Flow Period on account of (x) items that were accounted for as non-cash
reductions of Net Income in determining Consolidated Net Income or as non-cash
reductions of Consolidated Net Income in determining EBITDA of the Borrower and
its Restricted Subsidiaries in a prior Excess Cash Flow Period and (y) reserves
or accruals established in purchase accounting, and


 


(h)  the amount related to items that were added
to or not deducted from Net Income in calculating Consolidated Net Income or
were added to or not deducted from Consolidated Net Income in calculating
EBITDA (including the items referred to in clauses (iv), (v), (vi), (viii), (ix) and
(x) of the definition thereof) to the extent either (x) such items
represented a cash payment (which had not reduced Excess Cash Flow upon the
accrual thereof in a prior Excess Cash Flow Period), or an accrual for a cash
payment, by the Borrower and its Restricted Subsidiaries or (y) such items
did not represent cash received by the Borrower and its Restricted
Subsidiaries, in each case on a consolidated basis during such Excess Cash Flow
Period,


 


plus, without
duplication, (C) the sum of


 


(a)  an amount equal to any negative Change in
Working Capital for such Excess Cash Flow Period,


 


(b)  to the extent any permitted Capital
Expenditures referred to in clause (B)(c) above do not occur in the first
125 days of the following Excess Cash Flow Period of the Borrower specified in
the certificate of the Borrower delivered pursuant to clause (B)(c) above,
the amount of such Capital Expenditures that were not so made in such 125-day
period,


 


(c)  cash payments received in respect of Swap
Agreements during such Excess Cash Flow Period to the extent not included in
the computation of EBITDA,


 


13

















 


(d)  any extraordinary, unusual or nonrecurring
gain realized in cash during such Excess Cash Flow Period (except to the extent
such gain consists of Net Proceeds subject to Section 2.11(b)),


 


(e)  to the extent deducted in the computation of
EBITDA, cash interest income,


 


(f)  the amount of consideration paid with respect
to assets acquired as part of a Permitted Business Acquisition to the extent
such assets have been subsequently disposed of pursuant to Section 6.05(h) and
such amount reduced Excess Cash Flow in a prior year, and


 


(g)  the amount related to items that were
deducted from or not added to Net Income in connection with calculating
consolidated Net Income or were deducted from or not added to consolidated Net
Income in calculating EBITDA to the extent either (x) such items
represented cash received by the Borrower or any Subsidiary or (y) such
items do not represent cash paid by the Borrower or any Subsidiary, in each
case on a consolidated basis during such Excess Cash Flow Period.


 


“Excess
Cash Flow Period” shall mean each fiscal year of the Borrower commencing
with the 2007 fiscal year.


 


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


 


“Excluded
Taxes” shall mean, with respect to the Administrative Agent, any Lender, or
any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) income taxes imposed on (or
measured by) its net income (or franchise taxes imposed in lieu of net income
taxes) by the United States of America (or any state thereof) or the
jurisdiction under the laws of which such recipient is organized or in which
its principal office is located or, in the case of any Lender, in which its
applicable Lending Office is located or any other jurisdiction as a result of
such recipient engaging in a trade or business in such jurisdiction for tax
purposes, (b) any branch profits tax or any similar tax that is imposed by
any jurisdiction described in clause (a) above (c) in the case
of a Lender making a Loan to the Borrower, any withholding tax imposed by the
United States or imposed by the jurisdiction in which such Lender is
incorporated or has its principal place of business that (x) is in effect
and would apply to amounts payable hereunder to such Lender at the time such
Lender becomes a party to such Loan to the Borrower (or designates a new
Lending Office) except to the extent that such Lender (or its assignor, if any)
was entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts from a Loan Party with respect to
any withholding tax pursuant to Section 2.17(a) or Section 2.17(c) or
(y) is attributable to such Lender’s failure to comply with Section 2.17(e) (without
giving effect to the last sentence thereof) with respect to such Loan unless
such failure to comply with Section 2.17(e) is a result of a change
in law after the date such Lender becomes a party to such Loan to the Borrower
(or designates a new Lending Office) and (d) any interest, additions to
taxes or penalties with respect to the foregoing.


 


“Existing
Debt” shall mean the Indebtedness of Holdings and its Subsidiaries in
existence on the Closing Date prior to the consummation of the Transactions to
be consummated on the Closing Date.


 


“Existing
Debt Documents” shall mean any and all of the documents or instruments
governing the Existing Debt.


 


14

















 


“Existing
Owners” shall mean the Reinvesting Management Group, as such terms are
defined in the Merger Agreement as in effect on the Closing Date.


 


“Existing
Term Loans” shall have the meaning assigned to such term in Section 2.21.


 


“Facility”
shall mean the facility and commitments utilized in making Loans and credit
extensions hereunder, it being understood that as of the date of this Agreement
there is one Facility, i.e., the Term Facility.


 


“Family
Members” shall mean an individual’s spouse, former spouse, parent,
siblings, children, or other lineal descendants of such individual.


 


“Federal
Funds Effective Rate” shall mean, for any day the rate per annum
(expressed, as a decimal, rounded upwards, if necessary, to the next higher
1/100 of 1%) equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; provided, (i) if
such day is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (ii) if no such rate is
so published on such next succeeding Business Day, the Federal Funds Rate for
such day shall be the average rate charged to Administrative Agent, in its capacity
as a Lender, on such day on such transactions as determined by Administrative
Agent.


 


“Fee
Letter” shall mean that certain Fee Letter dated October 20, 2006 by
and among the Borrower, the Agents and certain other parties and that certain
Fee Letter dated as of the date hereof among Collateral Agent and Company.


 


“Fees”
shall mean the Administrative Agent Fees and Collateral Agent Fees.


 


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


 


“First
Lien Collateral Documents” shall mean the “Guaranty and Collateral
Agreement” and any “Mortgages” (in each case as defined in the First Lien
Credit Agreement) and each other security agreement or other instrument or
document executed and delivered to secure First Lien Indebtedness and any
related obligations, as amended, restated, supplemented, otherwise modified,
replaced, renewed, extended or refinanced from time to time in accordance with
requirements thereof and the Intercreditor Agreement.


 


“First
Lien Credit Agreement” shall mean the Credit Agreement, dated as of
Novermber 10, 2006, by and among Holdings, the Borrower, the financial
institutions from time to time party thereto as lenders, Goldman Sachs Credit
Partners, L.P., as administrative agent, JPMorgan Securities Inc., as
syndication agent, Barclays Bank PLC, as documentation agent, and Goldman Sachs
Credit Partners, L.P. and JPMorgan Securities Inc., as joint lead arrangers and
joint bookrunners, as amended, restated, supplemented, otherwise modified,
replaced, renewed, extended or refinanced from time to time in accordance with
requirements thereof and the Intercreditor Agreement.


 


“First
Lien Financing” shall mean the financing contemplated by the First Lien
Loan Documents.


 


15














 


“First Lien Indebtedness”
shall mean Indebtedness pursuant to the First Lien Loan Documents.


 


“First
Lien Loan Documents” shall mean the “Loan Documents” as defined in the
First Lien Credit Agreement as in effect on the date hereof, in each case as
amended, restated, supplemented, otherwise modified, replaced, renewed,
extended or refinanced from time to time in accordance with requirements
thereof and of this Agreement, and the Intercreditor Agreement.


 


“Foreign
Lender” shall mean any Lender that is not a “United States person” as
defined in Section 7701(a)(30) of the Code.


 


“Foreign
Subsidiary” shall mean any Subsidiary that is incorporated or organized
under the laws of any jurisdiction other than the United States of America, any
State thereof or the District of Columbia.


 


“GAAP”
shall mean generally accepted accounting principles in effect from time to time
in the United States.


 


“Generac”
shall mean Generac Power Systems, Inc., a Wisconsin corporation.


 


“GSCP”
shall have the meaning assigned to such term in the introductory paragraph of
this Agreement.


 


“Governmental
Authority” shall mean any federal, state, local or foreign court or
governmental agency, authority, instrumentality or regulatory or legislative
body or any entity or officer exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to any government or
any court, in each case whether associated with a state of the United States,
the United States, or a foreign entity or government.


 


“Guarantee”
of or by any person (the “guarantor”) shall mean (a) any
obligation, contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other obligation of any
other person (the “primary obligor”) in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep well, to purchase assets, goods, securities
or services, to take-or-pay or otherwise) or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such
Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof, (iii) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay
such Indebtedness or other obligation, (iv) entered into for the purpose
of assuring in any other manner the holders of such Indebtedness or other
obligation of the payment thereof or to protect such holders against loss in
respect thereof (in whole or in part) or (v) as an account party in
respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or other obligation, or (b) any Lien on any assets of the
guarantor securing any Indebtedness of any other person, whether or not such
Indebtedness or other obligation is assumed by the guarantor; provided, however,
that the term “Guarantee” shall not include endorsements for collection or deposit,
in either case in the ordinary course of business, or customary and reasonable
indemnity obligations in effect on the Closing Date or entered into in
connection with any acquisition or disposition of assets permitted under this
Agreement.  The amount of any Guarantee
for purposes of clause (b) shall be deemed to be equal to the
lesser of (i) the aggregate 


 


16

















 


unpaid amount of such Indebtedness and (ii) the fair market value
of the property encumbered thereby as determined by such person in good faith.


 


“guarantor”
shall have the meaning assigned to such term in the definition of the term “Guarantee”.


 


“Hazardous
Materials” shall mean all pollutants, contaminants, wastes, chemicals,
materials, substances and constituents of any nature which are subject to
regulation by any Governmental Authority or which would reasonably be likely to
give rise to liability under any Environmental Law, including, without
limitation, explosive or radioactive substances or petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated
biphenyls or radon gas.


 


“Holdings”
shall have the meaning assigned to such term in the introductory paragraph of
this Agreement.


 


“Incremental
Extensions of Credit” shall have the meaning assigned to such term in Section 2.21.


 


“Incremental
Facility Amendment” shall have the meaning assigned to such term in Section 2.21.


 


“Incremental
Facility Closing Date” shall have the meaning assigned to such term in Section 2.21.


 


“Indebtedness”
of any person shall mean, without duplication, (a) all obligations
of such person for borrowed money, (b) all obligations of such person
evidenced by bonds, debentures, notes or similar instruments to the extent the
same would appear as a liability on a balance sheet prepared in accordance with
GAAP, (c) all obligations of such person under conditional sale or other
title retention agreements relating to property or assets purchased by such
person, (d) all obligations of such person issued or assumed as the
deferred purchase price of property or services (other than current
intercompany liabilities (but not any refinancings, extensions, renewals or
replacements thereof) incurred in the ordinary course of business and maturing
within 365 days after the incurrence thereof), to the extent that the same
would be required to be shown as a long term liability on a balance sheet
prepared in accordance with GAAP, (e) all Guarantees by such person of
Indebtedness of others, (f) all Capital Lease Obligations of such person, (g) all
payments that such person would have to make in the event of an early
termination, on the date Indebtedness of such person is being determined, in
respect of outstanding Swap Agreements net of payments such person would
receive in the event of early termination on such date of determination, (h) the
principal component of all obligations, contingent or otherwise, of such person
as an account party in respect of letters of credit and (i) the principal
component of all obligations of such person in respect of bankers’
acceptances.  The Indebtedness of any
person shall include the Indebtedness of any partnership in which such person
is a general partner, other than to the extent that the instrument or agreement
evidencing such Indebtedness expressly limits the liability of such person in
respect thereof.  The Indebtedness of the
Borrower and the Restricted Subsidiaries shall exclude (i) accrued
expenses and accounts and trade payables, (ii) liabilities under vendor
agreements to the extent such indebtedness may be satisfied through non-cash
means such as purchase volume earnings credits and (iii) reserves for
deferred income taxes.


 


“Indemnified
Taxes” shall mean all Taxes other than Excluded Taxes and Other Taxes.


 


“Indemnitee”
shall have the meaning assigned to such term in Section 9.05(b).


 


17

















 


“Information”
shall have the meaning assigned to such term in Section 3.14(a).


 


“Information
Memorandum” shall mean the Confidential Information Memorandum dated October 2006,
as modified or supplemented prior to the Closing Date.


 


“Intercompany
Note” shall mean the Intercompany Note substantially in the form of Exhibit H;
provided that at any time prior to the Discharge of First Lien
Obligations (as defined in the Intercreditor Agreement) such term shall refer
to the Intercompany Note as defined in the First Lien Credit Agreement.


 


“Intercreditor
Agreement” shall mean the Intercreditor Agreement, dated as of the date
hereof, among the Administrative Agent and the administrative agent under the
First Lien Credit Agreement, the Collateral Agent and acknowledged by the
Borrower.


 


“Interest
Election Request” shall mean a request by the Borrower to convert or
continue a Term Borrowing in accordance with Section 2.07.


 


“Interest
Expense” shall mean, with respect to any person for any
period, the sum without duplication of (a) gross interest expense of such
person for such period on a consolidated basis, including (i) the
amortization of debt discounts, (ii) the amortization of all fees
(including fees with respect to Swap Agreements) payable in connection with the
incurrence of Indebtedness to the extent included in interest expense and (iii) the
portion of any payments or accruals with respect to Capital Lease Obligations
allocable to interest expense and (b) capitalized interest of such
person.  For purposes of the foregoing,
gross interest expense shall be determined after giving effect to any net
payments made or received and costs incurred by the Borrower and its Restricted
Subsidiaries with respect to Swap Agreements (provided that payments and
costs upon the settlement or termination of a Swap Agreement will not be
included in Interest Expense).


 


“Interest
Payment Date” shall mean, (a) with respect to any Eurocurrency Loan,
the last day of the Interest Period applicable to the Borrowing of which such
Loan is a part and, in the case of a Eurocurrency Borrowing with an Interest
Period of more than three months’ duration, each day that would have been an
Interest Payment Date had successive Interest Periods of three months’ duration
been applicable to such Borrowing and, in addition, the date of any refinancing
or conversion of such Borrowing with or to a Borrowing of a different Type and (b) with
respect to any ABR Loan, the last day of March, June, September and December of
each year.


 


“Interest
Period” shall mean, as to any Eurocurrency Borrowing, the period commencing
on the date of such Borrowing or on the last day of the immediately preceding
Interest Period applicable to such Borrowing, as applicable, and ending on the
numerically corresponding day (or, if there is no numerically corresponding
day, on the last day) in the calendar month that is 1, 2, 3 or 6 months
thereafter (or 9 or 12 months, if available to all relevant Lenders), as the
Borrower may elect, or the date any Eurocurrency Borrowing is converted to an
ABR Borrowing in accordance with Section 2.07 or repaid or prepaid
in accordance with Section 2.09, 2.10 or 2.11; provided,
unless the Administrative Agent shall otherwise agree, that the Interest Period
for the initial Eurocurrency Borrowing shall be of one month’s duration; provided,
however, that if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day.  Interest shall
accrue from and including the first day of an Interest Period to but excluding
the last day of such Interest Period.


 


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


 


18

















 


“Joint
Lead Arrangers” shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.


 


“Joint
Venture” shall mean a joint venture or similar arrangement, whether in
corporate, partnership or other legal form which is not a Subsidiary but in
which the Borrower or any Subsidiary owns or controls any Equity Interests; provided,
in no event shall any corporate Subsidiary of any person be considered to be a
Joint Venture to which such person is a party.


 


“Lender”
shall mean each financial institution listed on Schedule 2.01
(other than any such person that has ceased to be a party hereto pursuant to an
Assignment and Acceptance in accordance with Section 9.04), as well
as any person that becomes a “Lender” hereunder in accordance with Section 9.04.


 


“Lender
Default” shall mean (i) the refusal (which has not been retracted) or
failure of a Lender to make available its portion of any Borrowing (in each
case, when required to be made available, acquired or funded in accordance with
the terms hereof), or (ii) a Lender having notified the Borrower and/or
the Administrative Agent that it does not intend to comply with its obligations
under Section 2.06.


 


“Lending
Office” shall mean, as to any Lender, the applicable branch, office or
Affiliate of such Lender designated by such Lender to make Loans.


 


“LIBO
Rate” shall mean, with respect to any Eurocurrency Borrowing for any
Interest Period, the rate per annum equal to the rate determined by
Administrative Agent to be the offered rate which appears on the page of
the Telerate Screen which displays an average British Bankers Association
Interest Settlement Rate (such page currently being page number 3740
or 3750, as applicable) for deposits (for delivery on the first day of such
period) with a term equivalent to such period in Dollars, determined as of
approximately 11:00 a.m. (London, England time) on the Quotation Day for
such Interest Period, or (b) in the event the rate referenced in the
preceding clause (a) does not appear on such page or service or if
such page or service shall cease to be available, the rate per annum equal
to the rate determined by Administrative Agent to be the offered rate on such
other page or other service which displays an average British Bankers
Association Interest Settlement Rate for deposits (for delivery on the first
day of such period) with a term equivalent to such period in Dollars,
determined as of approximately 11:00 a.m. (London, England time) on the
Quotation Day for such Interest Period, or (c) in the event the rates
referenced in the preceding clauses (a) and (b) are not available,
the rate per annum equal to the offered quotation rate to first class banks in
the London interbank market by Deutche Bank Trust Company Americas for deposits
(for delivery on the first day of the relevant period) in Dollars of amounts in
same day funds comparable to the principal amount of the applicable Loan of
Administrative Agent, in its capacity as a Lender, for which the Adjusted
Eurodollar Rate is then being determined with maturities comparable to such
period as of approximately 11:00 a.m. (London, England time) on such
Interest Rate Determination Date.


 


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


 


“Loan
Documents” shall mean this Agreement, the Intercreditor Agreement, the
Security Documents, the Administrative Agent Fee Letter, the Fee Letter and any
Note issued under Section 2.09(e), any amendments (including any
Incremental Facility Amendment) and waivers to any of the foregoing.


 


19

















 


“Loan
Parties” shall mean Holdings, the Borrower and the Subsidiary Loan Parties
and any Parent Entity, in lieu of Holdings, that has executed and delivered an
assumption agreement in substantially the form of Exhibit D to the
Collateral Agreement and become a “Guarantor” and “Grantor” thereunder.


 


“Loans”
shall mean the Term Loans.


 


“Local
Time” shall mean New York City time.


 


“Management
Agreement” means that certain Advisory Services Agreement dated as of November 10,
2006 by and among Generac Acquisition Corp, GPS CCMP Acquisition Corp., Generac
Power Systems, Inc., CCMP Capital Advisors, LLC, and CCMP Capital Asia
PTE, Ltd. and CCMP Capital Asia Consulting Company Ltd.


 


“Management
Group” shall mean the group consisting of the directors, officers and other
management personnel of Holdings, the Borrower and its Restricted Subsidiaries.


 


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


 


“Material
Adverse Effect” shall mean a material adverse effect on and/or material
adverse developments with respect to the business, property, operations or
condition of the Borrower and its Subsidiaries, taken as a whole.


 


“Maturity
Date” shall mean May 10, 2014.


 


“Maximum
Rate” shall have the meaning assigned to such term in Section 9.09.


 


“Merger”
shall mean the merger of the Company with and into Generac, with Generac being
the surviving corporation, who without any further act or deed shall automatically
by operation of law become the Borrower hereunder and assume all of the
obligations, covenants, duties and liabilities of GPS CCMP Merger Corp. as if
originally a party hereto.


 


“Merger
Agreement” shall mean the Agreement and Plan of Merger, dated as of September 13,
2006, by and among Generac, Holdings, the Borrower and Robert D. Kern, as
representative for the shareholders listed on Exhibit A thereto.


 


“Moody’s”
shall mean Moody’s Investors Service, Inc.


 


“Mortgaged
Properties” shall mean the properties listed on Schedule 5.09 and the owned
real properties of the Loan Parties encumbered by a Mortgage pursuant to Section 5.09.


 


“Mortgage”
shall have the meaning assigned to such term in Section 5.09(c).


 


“Multiemployer
Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of
ERISA to which the Borrower, Holdings or any Subsidiary or any ERISA Affiliate
(other than one considered an ERISA Affiliate only pursuant to subsection (m) or
(o) of Code Section 414) is making or accruing an obligation
to make contributions, or has within any of the preceding six plan years made
or accrued an obligation to make contributions.


 


20

















 


“Net
Income” shall mean, with respect to any person, the net income (loss) of
such person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends.


 


“Net
Proceeds” shall mean:


 


(a)  an amount equal
to 100% of the cash proceeds actually received by the Borrower or any of its
Restricted Subsidiaries, which, in any fiscal year in the aggregate for all
such persons exceeds $5,000,000 (including any cash payments received by way of
deferred payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise and including casualty
insurance settlements and condemnation awards, but only as and when received)
from any loss, damage, destruction or condemnation of, or any sale, transfer or
other disposition (including any sale and leaseback of assets and any mortgage
or lease of real property) to any person of any asset or assets of the Borrower
or any Restricted Subsidiary in a single transaction or series of related
transactions (other than those pursuant to Section 6.05(a), (b),
(c), (e), (f), (i), (j), (k), (m),
(n), (o), (p), (r), (t), (u), and (v)),
net of (i) attorneys’ fees, accountants’ fees, investment banking fees,
survey costs, title insurance premiums, and related search and recording
charges, transfer taxes, deed or mortgage recording taxes, payments of debt and
other obligations relating to the applicable asset then due and payable or
required to be paid or discharged by the purchaser, transfer or other
disposition of such asset (other than pursuant hereto or pursuant to any First
Lien Indebtedness), other customary expenses and brokerage, consultant and
other customary fees and expenses actually incurred in connection therewith, (ii) Taxes
paid or payable as a result thereof or any Tax Distributions resulting
therefrom) and (iii) any reserve for adjustment in respect of (A) the
sale price of such asset or assets established in accordance with GAAP and (B) any
liabilities associated with such asset or assets and retained by the Borrower
or such Restricted Subsidiary after such sale, transfer or other disposition
thereof, including pension and other post-employment benefit obligations
associated with such transaction, provided that if no Event of Default
exists and Holdings or the Borrower shall deliver a certificate of a Responsible
Officer of the Borrower to the Administrative Agent promptly following receipt
of any such proceeds setting forth the Borrower’s intention to use or commit to
use any portion of such proceeds, to acquire, maintain, develop, construct,
improve, upgrade or repair assets useful in the business the Borrower and its
Restricted Subsidiaries or make Permitted Business Acquisitions, in each case
within 15 months of such receipt, then such portion shall not constitute Net
Proceeds except to the extent not so used or not contractually committed to be
so used within such 15 month period (it being understood that (1) any
amount so contractually committed to be used within such 15 month period must
be so used within 180 days of such commitment and (2) if any portion of
such proceeds are not so used within such period (whether because such amount
is contractually committed to be used and subsequent to such date such contract
is terminated or expires without such portion being so used or for any other
reason), such remaining portion shall constitute Net Proceeds (as of the date
of such termination or expiration (if applicable) without giving effect to this
proviso), provided that if such Net Proceeds arose from the sale of an
asset of a Loan Party, such proceeds must be reinvested in the assets of a Loan
Party or be permitted as an Investment pursuant to Section 6.04,
and,


 


(b)  an amount equal
to 100% of the cash proceeds received by the Borrower or any Restricted
Subsidiary from the incurrence, issuance or sale by the Borrower or any of its
Restricted Subsidiaries of any Indebtedness (other than Indebtedness permitted
by Section 6.01) net of all taxes and fees (including investment
banking fees), commissions, underwriting discounts, costs and other expenses,
in each case incurred in connection with such issuance or sale.


 


21

















 


“Non-Consenting
Lender” shall have the meaning assigned to such term in Section 2.19(c).


 


“Nonpublic
Information” shall mean information which has not been disseminated in a
manner making it available to investors generally, within the meaning of
Regulation FD.


 


“Note”
shall have the meaning assigned to such term in Section 2.09(e).


 


“Obligations”
shall mean all obligations of every nature of each Loan Party from time to time
owed to the Agents (including former Agents) under any Loan Document, whether
for principal, interest (including interest which, but for the filing of a
petition in bankruptcy with respect to such Loan Party, would have accrued on any
Obligation, whether or not a claim is allowed against such Loan Party for such
interest in the related bankruptcy proceeding), fees, expenses, indemnification
or otherwise.  For the avoidance of
doubt, Incremental Term Loans incurred pursuant to Section 2.21
shall constitute Obligations.


 


“Other
Taxes” shall mean any and all present or future stamp or documentary taxes
or any other excise or property taxes, charges or similar levies arising from
any payment made hereunder or from the execution, delivery or enforcement of,
or otherwise with respect to, the Loan Documents, and any and all interest and
penalties related thereto.


 


“Parent
Entity” shall mean any of (i) Holdings and (ii) any other person
of which Holdings is a Subsidiary.


 


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


 


“PBGC”
shall mean the Pension Benefit Guaranty Corporation referred to and defined in
ERISA and any successor entity performing similar functions.


 


“Permitted
Business Acquisition” shall mean any acquisition by the Borrower or
any Restricted Subsidiary of all or substantially all of the assets of, or a
majority of the outstanding Equity Interests (other than directors’ qualifying
shares and similar de minimis
holdings required by applicable law) in, a person or division or line of
business of a person, provided that: (i) immediately prior to, and
after giving effect thereto, no Event of Default shall have occurred and be
continuing or would result therefrom; (ii) (A) the Borrower and its
Subsidiaries shall be in compliance, on a Pro Forma Basis with the Total
Leverage Ratio and, the Borrower shall have delivered to the Administrative
Agent at least five days prior to such acquisition a certificate of a
Responsible Officer of the Borrower to such effect, together with all financial
information for such Subsidiary or assets that is reasonably requested by the
Administrative Agent and available to the Borrower, and (B) any acquired
or newly formed Subsidiary shall not be liable for any Indebtedness (except for
Indebtedness permitted by Section 6.01), (iii) if less than
all of the Equity Interests of a person are acquired, such person shall,
notwithstanding the definition of Subsidiary Loan Party, become a Subsidiary
Loan Party and (iv) if such person is a Foreign Subsidiary of the
Borrower, the acquisition thereof and any Investments therein shall be
permitted by Section 6.04 (b).


 


“Permitted
Debt Securities” shall mean unsecured Indebtedness of the Borrower, (i) that
are expressly subordinated to the prior payment in full of the Obligations
pursuant to provisions substantially similar to those set forth in Exhibit G
or otherwise on terms reasonably satisfactory to the Administrative Agent (it being
understood that customary high yield subordination terms prevailing at the time
of determination shall be deemed to be so satisfactory), (ii) the
terms of which do not provide for any scheduled repayment, mandatory redemption
(other than pursuant to customary provisions relating to 


 


22

















 


redemption or repurchase upon change of control or sale of assets) or
sinking fund obligation prior to the date that is 91 days after the Term
Facility Maturity Date, (iii) in the case of such Indebtedness in excess
of $35.0 million, the covenants, events of default, and remedy provisions of
which, taken as a whole, are not more restrictive to, or the mandatory
repurchase or redemption provisions thereof are not more onerous or expansive
in scope, taken as a whole, on, the Borrower and its Restricted Subsidiaries
than the terms of the Loan Documents, as reasonably determined by the
Administrative Agent and (iv) in the case of such Indebtedness in excess
of $35.0 million, in respect of which no Subsidiary of the Borrower that is not
an obligor under the Loan Documents is an obligor.


 


“Permitted
Investments” shall mean:


 


(a)  direct
obligations of the United States of America or any member of the European Union
or any agency thereof or obligations guaranteed by the United States of America
or any member of the European Union or any agency thereof, in each case with
maturities not exceeding two years;


 


(b)  time deposit
accounts, certificates of deposit and money market deposits maturing within 180
days of the date of acquisition thereof issued by a bank or trust company that
is organized under the laws of the United States of America, any state thereof
or any foreign country recognized by the United States of America having
capital, surplus and undivided profits in excess of $250.0 million and whose
long-term debt, or whose parent holding company’s long-term debt, is rated A
(or such similar equivalent rating or higher by at least one nationally
recognized statistical rating organization (as defined in Rule 436 under
the Securities Act);


 


(c)  repurchase
obligations with a term of not more than 180 days for underlying securities of
the types described in clause (a) above entered into with a bank
meeting the qualifications described in clause (b) above;


 


(d)  commercial
paper, maturing not more than one year after the date of acquisition, issued by
a corporation organized and in existence under the laws of the United States of
America or any foreign country recognized by the United States of America with
a rating at the time as of which any investment therein is made of P-2 (or
higher) according to Moody’s, or A-1 (or higher) according to S&P;


 


(e)  securities with
maturities of two years or less from the date of acquisition issued or fully
guaranteed by any State, commonwealth or territory of the United States of
America, or by any political subdivision or taxing authority thereof, and rated
at least A by S&P or A by Moody’s;


 


(f)  shares of
mutual funds whose investment guidelines restrict 95% of such funds’
investments to those satisfying the provisions of clauses (a) through (e) above;


 


(g)  money market
funds that (i) comply with the criteria set forth in Rule 2a-7 under
the Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa
by Moody’s and (iii) have portfolio assets of at least $5.0 billion; and


 


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


 


23

















 


“Permitted
Investors” shall mean (x) the Sponsors, (y) the Existing Owners
and any of their Permitted Transferees and (z) the members of the
Management Group so long as the Sponsors shall own, directly or indirectly,
Equity Interests in Holdings representing a majority of the Equity Interests in
Holdings owned directly or indirectly by the persons described in clauses (x), (y) and
(z).


 


“Permitted
Refinancing Indebtedness” shall mean any Indebtedness
issued in exchange for, or the net proceeds of which are used to extend,
refinance, renew, replace, defease or refund (collectively, to “Refinance”),
the Indebtedness being Refinanced (or previous refinancings thereof
constituting Permitted Refinancing Indebtedness); provided that (a) the
principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or accreted
value, if applicable) of the Indebtedness so Refinanced (plus unpaid accrued
interest and premium thereon, any committed or undrawn amounts and underwriting
discounts, fees, commissions and expenses, associated with such Permitted
Refinancing Indebtedness), except as otherwise permitted under Section 6.01,
(b) the final maturity date of such Permitted Refinancing Indebtedness is
no earlier than the earlier of (i) the final maturity date of the
Indebtedness being refinanced and (ii) the date that is 91 days after the
Term Facility Maturity Date, (c) if the Indebtedness being Refinanced is
by its terms subordinated in right of payment to the Obligations under this
Agreement, such Permitted Refinancing Indebtedness shall be subordinated in
right of payment to such Obligations on terms at least as favorable to the
Lenders as those contained in the documentation governing the Indebtedness
being Refinanced, taken as a whole, (d) no Permitted Refinancing
Indebtedness shall have obligors or contingent obligors that were not obligors
or contingent obligors (or that would not have been required to become obligors
or contingent obligors) in respect of the Indebtedness being Refinanced and (e) if
the Indebtedness being Refinanced is (or would have been required to be)
secured by any collateral of a Loan Party (whether equally and ratably with, or
junior to, the Secured Parties or otherwise), such Permitted Refinancing
Indebtedness may be secured by such collateral on terms no less favorable,
taken as a whole, to the Secured Parties than those contained in the
documentation governing the Indebtedness being Refinanced, taken as a whole; and
provided further, that with respect to a Refinancing of (x) Permitted
Debt Securities such Permitted Refinancing Indebtedness shall meet the
requirements of clauses (i), (ii), (iii) and (iv) of the definition
of “Permitted Debt Securities” and (y) First Lien Indebtedness, any
Liens securing such Permitted Refinancing Indebtedness shall be subject to the
Intercreditor Agreement or another intercreditor agreement that is no less
favorable, taken as a whole, to the Secured Parties than the Intercreditor Agreement.


 


“Permitted
Transferees” shall mean the collective reference to (i) any Existing
Owner, (ii) any direct or indirect stockholder, member, partner or
Affiliate of any Existing Owner; (ii) transferees of Equity Interests of
any Existing Owner pursuant to buy/sell provisions under current stockholder,
partnership, operating or similar agreements to which any Existing Owner is
bound, solely to the extent any such transfer is made to a party to such
agreements (or to an Affiliate of such party); (iii) any Family Member of
any person described in the foregoing clauses (i) and (ii) (or a
Family Member of any such person’s spouse, former spouse, parent, sibling,
children or other lineal descendants, heirs or estate), a company, partnership
or a trust established for the benefit of any of the foregoing or any personal
representative, estate or executor under any will of any such Family Member or
pursuant to the laws of intestate succession.


 


“person”
shall mean any natural person, corporation, business trust, joint venture,
association, company, partnership, limited liability company, individual or
family trust, or other organization (whether or not a legal entity), or any
government or any agency or political subdivision thereof.


 


“Plan”
shall mean any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of
the Code and in respect of which 


 


24

















 


Holdings, the Borrower, any Subsidiary or any ERISA Affiliate is (or,
if such plan were terminated, would under Section 4069 of ERISA be
deemed to be) an “employer” as defined in Section 3(5) of
ERISA.


 


“Platform”
shall have the meaning assigned to such term in Section 5.14.


 


“Pledged
Collateral” shall have the meaning assigned to such term in the Collateral
Agreement.


 


“primary
obligor” shall have the meaning assigned to such term in the definition of
the term “Guarantee”.


 


“Pro Forma Basis” shall mean, as
to any calculation of the Total Leverage Ratio or the Total Senior Secured
Leverage Ratio for any events as described below that occur subsequent to the
commencement of any period of four consecutive quarters (the “Reference
Period”) for which the financial effect of such events is being calculated,
and giving effect to the events for which such calculation is being made, such
calculation as will give pro forma effect to such
events as if such events occurred on the first day of the Reference Period (it
being understood and agreed that unless otherwise specified, such Reference
Period shall be deemed to be the four consecutive fiscal quarters ending on the
last day of the most recently ended fiscal quarter of the Borrower and its
Subsidiaries for which financial statements are available and such pro forma adjustments shall be
excluded to the extent already accounted for in the calculation of EBITDA for
such period):  (i) in making any
determination of EBITDA, pro forma effect shall
be given to any asset disposition of a Restricted Subsidiary, manufacturing
facility or line of business, to any asset acquisition, any discontinued
operation or any operational change and any Subsidiary Redesignation in each
case that occurred during the Reference Period (or, in the case of
determinations made with respect to any action the taking of which hereunder is
subject to compliance on a Pro Forma Basis or otherwise with the Total Leverage
Ratio or the Total Senior Secured Leverage Ratio (any such action, a “Restricted
Action”) occurring during the Reference Period or thereafter and through
and including the date of such determination) and (ii) in making any
determination on a Pro Forma Basis, (x) all Indebtedness (including
Indebtedness incurred or assumed and for which the financial effect is being
calculated, whether incurred under this Agreement or otherwise, but excluding
normal fluctuations in revolving Indebtedness incurred for working capital
purposes) incurred or permanently repaid during the Reference Period (or, in
the case of determinations made with respect to any Restricted Action,
occurring during the Reference Period or thereafter and through and including
the date of such determination) shall be deemed to have been incurred or repaid
at the beginning of such 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 the preceding clause (x), bearing floating
interest rates shall be computed on a pro forma basis
utilizing the rate which is or would be in effect with respect to such
Indebtedness as at the relevant date of determination as if such rate had been
actually in effect during the period for which pro forma effect is
being given.


 


Pro forma calculations made pursuant
to the definition of the term “Pro Forma Basis” shall be determined in good
faith by a Responsible Officer of the Borrower and, for any fiscal period
ending on or prior to the first anniversary of any such asset acquisition,
asset disposition, discontinued operation or operational change or Subsidiary
Redesignation, may include adjustments to reflect operating expense reductions
and other operating improvements or synergies reasonably expected to result
from such asset acquisition, asset disposition, discontinued operation,
operational change, or Subsidiary Redesignation and for purposes of determining
compliance with the Total Leverage Ratio or the Total Senior Secured Leverage
Ratio, such adjustments may reflect additional operating expense reductions and
other additional operating improvements and synergies that (x) would be
includable in pro forma financial statements prepared in accordance with
Regulation S-X and (y) such other adjustments 


 


25

















 


not includable in Regulation S-X under the
Securities Act for which substantially all of the steps necessary for the
realization thereof have been taken or are reasonably anticipated by the
Borrower to be taken in the next 12 month period following the consummation
thereof and, are estimated on a good faith basis by the Borrower; provided,
however that the aggregate amount of any such adjustments pursuant to clause (y) shall
not exceed three percent (3%) of the consolidated
revenues of the Borrower in any fiscal year. 
The Borrower shall deliver to the Administrative Agent a certificate of
a Responsible Officer of the Borrower setting forth such demonstrable or
additional operating expense reductions and other operating improvements or
synergies and information and calculations supporting them in reasonable detail.


 


“Projections”
shall mean the projections of Holdings, the Borrower and the Subsidiaries
included in the Information Memorandum and any other projections and any
forward-looking statements of such entities furnished to the Lenders or the
Administrative Agent in writing by or on behalf of Holdings, the Borrower or
any of its Subsidiaries.


 


“Qualified
Capital Stock” means any Equity Interest of any person that does not by its
terms (or by the terms of any security into which it is convertible or for
which it is exchangeable or exercisable) or upon the happening of any event (a) provide
for scheduled payments of dividends in cash (other than at the option of the
issuer) prior to the date that is 91 days after the Term Facility Maturity
Date, (b) become mandatorily redeemable (other than pursuant to customary
provisions relating to redemption upon a change of control or sale of assets)
pursuant to a sinking fund obligation or otherwise prior to the date that is 91
days after the Term Facility Maturity Date, (c) become convertible or
exchangeable at the option of the holder thereof for Indebtedness (other than
Indebtedness constituting Permitted Debt Securities that the Borrower would be
permitted to incur under Section 6.01(o) on the date of
conversion) or Equity Interests that are not Qualified Capital Stock, or (d) contain
any maintenance covenants, other covenants adverse to the Lenders or remedies
(other than voting rights and increases in dividends).


 


“Qualified
IPO” shall mean an underwritten public offering of the Equity Interests of
any Parent Entity which generates gross proceeds to such Parent Entity of at
least $100.0 million.


 


“Quotation
Day” shall mean, with respect to any Eurocurrency Borrowing and any
Interest Period, the day on which it is market practice in the relevant
interbank market for prime banks to give quotations for deposits in Dollars for
delivery on the first day of such Interest Period.  If such quotations would normally be given by
prime banks on more than one day, the Quotation Day will be the last of such
days.


 


“Reference
Period” shall have the meaning assigned to such term in the definition of
the term “Pro Forma Basis”.


 


“Refinance”
shall have the meaning assigned to such term in the definition of the term “Permitted
Refinancing Indebtedness”, and “Refinanced” shall have a meaning correlative
thereto.


 


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


 


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


 


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


 


26














 


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


 


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


 


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


 


“Remaining Present Value” shall mean, as of any
date with respect to any lease, the present value as of such date of the
scheduled future lease payments with respect to such lease, determined with a
discount rate equal to a market rate of interest for such lease reasonably
determined at the time such lease was entered into.


 


“Reportable Event” shall mean any reportable
event as defined in Section 4043(c) of ERISA or the
regulations issued thereunder, other than those events as to which the 30-day
notice period referred to in Section 4043(c) of ERISA has been
waived, with respect to a Plan (other than a Plan maintained by an ERISA
Affiliate that is considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of Section 414 of the Code).


 


“Required Lenders” shall mean, at any time,
Lenders having Loans outstanding that represent more than 50% of the sum of all
Loans outstanding at such time.  The
Loans of any Defaulting Lender shall be disregarded in determining Required
Lenders at any time.


 


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


 


“Restricted Action” shall have the meaning
assigned to such term in the definition of “Pro Forma Basis.”


 


“Restricted Subsidiary” means each Subsidiary
of the Borrower that is not an Unrestricted Subsidiary.


 


“S&P” shall mean Standard & Poor’s
Ratings Group, Inc.


 


“Sale and Lease-Back Transaction” shall have
the meaning assigned to such term in Section 6.03.


 


“SEC” shall mean the Securities and Exchange
Commission or any successor thereto.


 


“Secured Parties” shall mean the “Secured
Parties” as defined in the Collateral Agreement.


 


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


 


27

















 


“Security Documents” shall mean the Mortgages,
the Collateral Agreement and each of the security agreements, mortgages and
other instruments and documents executed and delivered pursuant to any of the
foregoing or pursuant to Section 5.09.


 


“Specified Equity Contribution” shall have the
meaning assigned to such term Section 7.02(a).


 


“Sponsors” shall mean CCMP and its Affiliates.


 


“Statutory Reserves” shall mean the aggregate
of the maximum reserve percentages (including any marginal, special, emergency
or supplemental reserves) expressed as a decimal established by the Board and
any other banking authority, domestic or foreign, to which the Administrative
Agent or any Lender (including any branch, Affiliate, or other fronting office
making or holding a Loan) is subject for Eurocurrency Liabilities (as defined
in Regulation D of the Board). 
Eurocurrency Loans shall be deemed to constitute Eurocurrency
Liabilities as defined in Regulation D of the Board) and to be subject to
such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D. Statutory Reserves shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.


 


“Subordinated Intercompany Debt” shall have the
meaning assigned to such term in Section 6.01(d).


 


“Subsidiary” shall mean, with respect to any
person (herein referred to as the “parent”), any corporation,
partnership, association or other business entity of which securities or other
ownership interests representing more than 50% of the ordinary voting power or
more than 50% of the partnership interests are, at the time any determination
is being made, directly or indirectly, owned, Controlled or held by the parent.


 


“Subsidiary Loan Party” shall mean each
Restricted Subsidiary that is a Wholly Owned Subsidiary of the Borrower, other
than (a) any Foreign Subsidiary (b) any Subsidiary of a Foreign
Subsidiary and (c) any Unrestricted Subsidiary.


 


“Subsidiary Redesignation” shall have the
meaning provided in the definition of “Unrestricted Subsidiary” contained in
this Section 1.01.


 


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


 


“Syndication Agent” shall have the meaning
assigned to such term in the introductory paragraph of this Agreement.


 


“Tax Distribution” shall have the meaning
assigned to such term in Section 6.06(f).


 


28

















 


“Taxes” shall mean any and all present or
future taxes, levies, imposts, duties (including stamp duties), deductions,
charges (including ad valorem charges) or withholdings imposed by any
Governmental Authority and any and all interest and penalties related thereto.


 


“Tax Sharing Agreement” means the Tax Sharing
Agreement dated as of November 10, 2006 among the Borrower and GPS CCMP
Acquisition Corp.


 


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


 


“Term Facility” shall mean the Term Loan
Commitments and the Term Loans made hereunder.


 


“Term Loan Commitment” shall mean with respect
to each Lender, the commitment of such Lender to make Term Loans pursuant to Section 2.01(a) in
an aggregate amount not to exceed the amount set forth opposite such Lender’s
name on Schedule 2.01 under the caption “Term Commitment” or in an
Assignment and Acceptance pursuant to which such Lender becomes a party hereto
in accordance with Section 9.04, as applicable, as such amount may
be adjusted from time to time in accordance with this Agreement.  The aggregate amount of the Term Loan Commitments
on the Closing Date is $430.0 million.


 


“Term Loans” shall mean the term loans made by
the Lenders to the Borrower on the Closing Date pursuant to Section 2.01(a).


 


“Term Lender” shall mean a Lender with a Term
Loan Commitment and/or an outstanding Term Loan.


 


“Test Period” shall mean, on any date of
determination, the period of four consecutive fiscal quarters (taken as one
accounting period) of the Borrower (a) then most recently ended for which
financial statements are available or (b) in the case of calculations
pursuant to Section 6.10, ended on the last day of the fiscal
quarter in question.


 


“Total Leverage Ratio” shall mean, on any date,
the ratio of Consolidated Total Debt to EBITDA for the relevant Test Period,
all determined on a consolidated basis.


 


“Total Senior Secured Leverage Ratio” shall
mean, on any date, the ratio of Consolidated Senior Secured Debt, as of such
date to (b) EBITDA for the relevant Test Period, all determined on a
consolidated basis.


 


“Transaction Costs” means fees and expenses
payable or otherwise borne by Holdings, any other Parent Entity, the Borrower
and the Subsidiaries in connection with the Transactions occurring on or about
the Closing Date.


 


“Transaction Documents” shall mean the Merger
Agreement, First Lien Loan Documents and the Loan Documents.


 


“Transactions” shall mean, collectively, the
transactions to occur pursuant to the Transaction Documents, including (a) the
consummation of the Merger; (b) the execution and delivery of the Loan
Documents and the initial borrowings hereunder; (c) the First Lien
Financing; (d) the repayment of the Existing Debt and (e) the payment
of the Transaction Costs.


 


29

















 


“Type”, when used in respect of any Loan or
Borrowing, shall refer to the Rate by reference to which interest on such Loan
or on the Loans comprising such Borrowing is determined.  For purposes hereof, the term “Rate” shall
include the Adjusted LIBO Rate and the ABR.


 


“Uniform Customs” shall have the meaning
assigned to such term in Section 9.07.


 


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


 


“U.S. Bankruptcy Code” shall mean Title 11
of the United States Code, as amended, or any similar federal or state law for
the relief of debtors.


 


“Unrestricted Subsidiary” shall mean any
Subsidiary of the Borrower that is acquired or created after the Closing Date
designated by the Borrower as an Unrestricted Subsidiary hereunder by written
notice to the Administrative Agent; provided that the Borrower shall
only be permitted to so designate an Unrestricted Subsidiary so long as (a) no
Default or Event of Default exists or would result therefrom and (b) the
designation of such Unrestricted Subsidiary shall comply with Section 6.04,
with the amount of the fair market value of any assets owned by such
Unrestricted Subsidiary and any of its Subsidiaries at the time of the
designation thereof  being deemed an
Investment pursuant to Section 6.04.  The Borrower may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary for purposes of the credit
documentation (each, a “Subsidiary Redesignation”); provided that
(i)  no Default or Event of Default then exists or would occur as a
consequence of any such Subsidiary Redesignation (including, but not limited
to, under Sections 6.01 and 6.02), (ii) calculations are
made by the Borrower of compliance with the Total Leverage Ratio for the
relevant Reference Period, on a Pro Forma Basis as if the respective Subsidiary
Redesignation (as well as all other Subsidiary Redesignations theretofore
consummated after the first day of such Reference Period) had occurred on the
first day of such Reference Period, and such calculations shall show that such
financial covenants would have been complied with if the Subsidiary
Redesignation had occurred on the first day of such Reference Period (for this
purpose, if the first day of the respective Reference Period occurs prior to
the Closing Date, calculated as if the Total Leverage Ratio had been applicable
from the first day of the Reference Period), (iii) all representations and
warranties contained herein and in the other Loan Documents shall be true and
correct in all material respects with the same effect as though such
representations and warranties had been made on and as of the date of such
Subsidiary Redesignation (both before and after giving effect thereto), unless
stated to relate to a specific earlier date, in which case such representations
and warranties shall be true and correct in all material respects as of such
earlier date, (iv) treating such Subsidiary Redesignation as a
contribution to the Borrower of an amount equal to the fair market value of
such Unrestricted Subsidiary and (v) the Borrower shall have delivered to
the Administrative Agent an officer’s certificate executed by a Responsible
Officer of the Borrower, certifying to such officer’s knowledge, compliance
with the requirements of preceding clauses (i) through (iv),
inclusive, and containing the calculations required by the preceding
clause (ii).


 


“Voluntary Prepayments of First Lien Indebtedness”
shall mean any “Voluntary Prepayments” as defined in the First Lien Credit
Agreement as in effect on the date hereof.


 


“Voluntary Prepayments of Second Lien Indebtedness”
shall mean any voluntary prepayment of Term Loans pursuant to Section 2.11(a).


 


“Wholly Owned Subsidiary” of any person shall
mean a subsidiary of such person, all of the outstanding Equity Interests of
which (other than directors’ qualifying shares or nominee or other 


 


30

















 


similar shares (including shares issued to foreign nationals) required
pursuant to applicable law) are owned by such person or another Wholly Owned
Subsidiary of such person.


 


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


 


SECTION 1.02.      Terms
Generally.  The definitions set forth
or referred to in Section 1.01 shall apply equally to both the
singular and plural forms of the terms defined. 
Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including”
shall be deemed to be followed by the phrase “without limitation”. All
references herein to Articles, Sections, Exhibits and Schedules shall be deemed
references to Articles and Sections of, and Exhibits and Schedules to, this
Agreement unless the context shall otherwise require.  Except as otherwise expressly provided
herein, any reference in this Agreement to any Loan Document or other agreement
or instrument shall mean such Loan Document, agreement or instrument as
amended, restated, amended and restated, supplemented, otherwise modified,
replaced, renewed, extended or refinanced from time to time and any reference
in this Agreement to any person shall include a reference to such person’s
successors-in-interest.  Except as
otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time to
time; provided that, if the Borrower notifies the Administrative Agent
that the Borrower requests an amendment to any provision hereof to eliminate
the effect of any change occurring after the Closing Date in GAAP or in the
application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in accordance
herewith; provided further that if an amendment is requested by the
Borrower or the Required Lenders, then the Borrower and the Administrative
Agent shall negotiate in good faith to enter into an amendment of such affected
provisions to preserve the original intent thereof in light of such change in
GAAP or the application thereof subject to the approval of the Required
Lenders.


 


SECTION 1.03.      Effectuation
of Transactions.  Each of the
representations and warranties of Holdings and the Borrower contained in this
Agreement (and all corresponding definitions) are made after giving effect to
the Transactions, unless the context otherwise requires.


 


ARTICLE II


 


The Credits


 


SECTION 2.01.      Commitments.  Subject to the terms and conditions set forth
herein, each Term Lender agrees to and shall make Term Loans to the Borrower on
the Closing Date in a principal amount not to exceed its Term Loan Commitment.


 


SECTION 2.02.      Loans
and Borrowings.  (a)  Each
Loan shall be made as part of a Borrowing consisting of Loans and of the same
Type made by the Lenders ratably in accordance with their respective Term Loan
Commitments hereunder.  The failure of
any Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided that the Commitments of
the Lenders are several and no Lender shall be responsible for any other Lender’s
failure to make Loans as required.


 


31

















 


(b)   Subject to Section 2.14,
each Borrowing shall be comprised entirely of ABR Loans or Eurocurrency Loans
as the Borrower may request in accordance herewith.  Each Lender at its option may make any ABR
Loan or Eurocurrency Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that any exercise
of such option shall not affect the obligation of the Borrower to repay such
Loan in accordance with the terms of this Agreement and such Lender shall not
be entitled to any amounts payable under Section 2.15 or 2.17
solely in respect of increased costs resulting from such exercise and existing
at the time of such exercise.


 


(c)   At the commencement of each Interest
Period for any Eurocurrency Borrowing, such Borrowing shall be in an aggregate
amount that is an integral multiple of the Borrowing Multiple and not less than
the Borrowing Minimum.  At the time that
each ABR Borrowing is made, such Borrowing shall be in an aggregate amount that
is an integral multiple of the Borrowing Multiple and not less than the Borrowing
Minimum.  Borrowings of more than one
Type and under more than one Facility may be outstanding at the same time; provided
that there shall not at any time be more than a total of fifteen (15)
Eurocurrency Borrowings outstanding.


 


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


 


SECTION 2.03.      Requests
for Borrowings.  To request a Term
Borrowing, the Borrower shall notify the Administrative Agent of such request
by telephone (a) in the case of a Eurocurrency Borrowing, not later than
1:00 p.m., Local Time, three Business Days before the date of the proposed
Borrowing or (b) in the case of an ABR Borrowing, not later than 1:00 p.m.,
Local Time. one Business Day before the date of the proposed Borrowing.  Each such telephonic Borrowing Request shall
be irrevocable and shall be confirmed promptly by hand delivery or fax to the
Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the Borrower.  Each such telephonic and written Borrowing
Request shall specify the following information in compliance with Section 2.02:


 


(i)     the
location and number of the Borrower’s account to which funds are to be
disbursed;


 


(ii)    the
aggregate amount of the requested Borrowing;


 


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


 


(iv)   whether
such Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing; and


 


(v)    in
the case of a Eurocurrency Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of
the term “Interest Period”.


 


If no Interest Period is specified with respect to any
requested Eurocurrency Borrowing, then the Borrower shall be deemed to have
selected a Eurocurrency Borrowing with an Interest Period of one month’s
duration.  Promptly following receipt of
a Borrowing Request in accordance with this Section, the Administrative Agent
shall advise each Lender of the details thereof and of the amount of such
Lender’s Loan to be made as part of the requested Borrowing.


 


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SECTION 2.04.      Reserved.


 


SECTION 2.05.      Reserved.


 


SECTION 2.06.      Funding
of Borrowings.  (a)  Each
Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds by 12:00 p.m.,
Local Time, to the account of the Administrative Agent most recently designated
by it for such purpose by notice to the Lenders.  The Administrative Agent will make the
proceeds of such Loans available to the Borrower by promptly crediting the
amounts so received, in like funds, to an account designated by the Borrower in
the applicable Borrowing Request.


 


(b)   Unless the Administrative Agent shall
have received notice from a Lender prior to the proposed date of any Borrowing
that such Lender will not make available to the Administrative Agent such
Lender’s share of such Borrowing, the Administrative Agent may assume that such
Lender has made such share available on such date in accordance with
paragraph (a) of this Section and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount.  In such event, if a Lender has not in fact
made its share of the applicable Borrowing available to the Administrative
Agent, then the applicable Lender and the Borrower severally agree to pay to
the Administrative Agent forthwith on demand (without duplication) such
corresponding amount with interest thereon, for each day from and including the
date such amount is made available to the Borrower to but excluding the date of
payment to the Administrative Agent, at (i) in the case of such Lender,
the greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on
interbank compensation or (ii) in the case of the Borrower, the interest
rate applicable to ABR Loans.  If such
Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender’s Loan included in such Borrowing.


 


SECTION 2.07.      Interest
Elections.  (a)  Each
Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurocurrency Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request.  Thereafter, the Borrower may elect to convert
such Borrowing to a different Type or to continue such Borrowing and, in the
case of a Eurocurrency Borrowing, may elect Interest Periods therefor, all as
provided in this Section.  The Borrower
may elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing.


 


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


 


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


 


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


 


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


 


33

















 


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


 


(iv)   if
the resulting Borrowing is a Eurocurrency Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a
period contemplated by the definition of the term “Interest Period”.


 


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


 


(e)    If the Borrower fails to
deliver a timely Interest Election Request with respect to a Eurocurrency
Borrowing prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest
Period such Borrowing shall be converted to an ABR Borrowing.  Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the Administrative
Agent, at the written request (including a request through electronic means) of
the Required Lenders, so notifies the Borrower, then, so long as an Event of
Default is continuing (i) no outstanding Borrowing may be converted to or
continued as a Eurocurrency Borrowing and (ii) unless repaid, each
Eurocurrency Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.


 


SECTION 2.08.      Termination
and Reduction of Commitments.  The
parties hereto acknowledge that the Term Loan Commitments will terminate at the
earlier to occur of (x) 5:00 p.m., Local Time, on the Closing Date
and (y) the making of any Term Loans hereunder.


 


SECTION 2.09.      Repayment
of Loans; Evidence of Debt.  (a)  The
Borrower hereby unconditionally promises to pay to the Administrative Agent for
the account of each Lender the then unpaid principal amount of each Term Loan
of such Lender as provided in Section 2.10.  Once prepaid or repaid, Term Loans may not be
reborrowed.


 


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


 


(c)   The Administrative Agent (or its
agent or sub-agent appointed by it) shall maintain the Register, as set forth
in Section 9.04(b)(iv), in which it shall record (i) the
amount of each Loan made hereunder, the Facility and Type thereof and the
Interest Period (if any) applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) any amount received by the
Administrative Agent hereunder for the account of the Lenders and each Lender’s
share thereof.


 


(d)   The entries made in the accounts
maintained pursuant to paragraph (b) or (c) of this Section shall
be prima facie evidence of the existence and amounts of the obligations
recorded therein absent manifest error; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement and, provided further
that in the event of any inconsistency between the Register and any Lender’s
records, the recordations in the Register shall govern.


 


34

















 


(e)   Any Lender may request that Loans
made by it be evidenced by a promissory note (a “Note”).  In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent and the
Borrower.  Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be
represented by one or more promissory notes in such form payable to the payee
named therein.


 


SECTION 2.10.      Repayment
of Term Loans.  (a)  The
Borrower shall repay all Term Loans on the Maturity Date.


 


(b)   [Reserved].


 


(c)    Prepayment of the Borrowings from:


 


(i)    Net
Proceeds pursuant to Section 2.11(b) shall be applied first to
ABR Term Loans and then to Eurocurrency Term Loans, and to such Term Borrowings
on a pro rata basis, with the application thereof in direct
order of maturity, and


 


(ii)   any
optional prepayments of the Term Loans pursuant to Section 2.11(a) shall
be applied to the remaining installments thereof as directed by the Borrower.


 


(d)   Prior to any optional repayment
of any Borrowing hereunder, the Borrower shall notify the Administrative Agent
by telephone (confirmed by fax) of the Borrowings to be repaid not later than
12:00 p.m., Local Time, (i) in the case of an ABR Borrowing, one
Business Day before the scheduled date of such repayment and (ii) in the
case of a Eurocurrency Borrowing, three Business Days before the scheduled date
of such repayment.  Each repayment of a
Borrowing shall be applied ratably to the Loans included in the repaid
Borrowing.  Repayments of Borrowings
shall be accompanied by accrued interest on the amount repaid.  In the event the Borrower fails to specify
the Borrowings to which any such prepayment shall be applied, such prepayment
shall be applied to prepay the ABR Term Loans and then to the Eurocurrency Term
Loans, in each case, on a pro rata basis (in accordance with the respective outstanding
principal amounts thereof).


 


SECTION 2.11.      Prepayment
of Loans.  (a)  The
Borrower shall have the right at any time and from time to time to prepay any
Borrowing in whole or in part, without premium or penalty (but subject to Section 2.11(f) and
Section 2.16), in an aggregate principal amount that is an integral
multiple of the Borrowing Multiple and not less than the Borrowing Minimum or,
if less, the amount outstanding, subject to prior notice in accordance with Section 2.10(d).


 


(b)   To the extent not required to be
used to prepay loans under the First Lien Credit Agreement, the Borrower shall
apply, without duplication, all Net Proceeds within three Business Days of
receipt thereof to prepay Term Borrowings in accordance with paragraphs (c) and
(d) of Section 2.10.


 


(c)   [Reserved].


 


(d)   [Reserved].


 


(e)   Concurrently with any prepayment
pursuant to Section 2.11(b), the Borrower shall deliver to the
Administrative Agent a certificate of a Financial Officer demonstrating the
calculation of the amount of the applicable Net Proceeds.  In the event that the Borrower shall
subsequently determine that the actual amount received exceeded the amount set
forth in such certificate, the Borrower shall


 


35

















 


promptly make an additional prepayment of the Loans in an amount equal
to such excess, and the Borrower shall concurrently therewith deliver to
Administrative Agent a certificate of a Financial Officer demonstrating the
derivation of such excess.


 


(f)   In the event that the Term Loans are
prepaid or repaid in whole or in part by the Borrower pursuant to Section 2.11(a) or
made pursuant to Section 2.11(b) with Net Proceeds of the type
described in clause (b) of the definition of Net Proceeds prior to the second
anniversary of the Closing Date, the Borrower shall pay to Lenders, a
prepayment premium on the amount so prepaid or repaid as follows: (i) 2.00%
if such repayment occurs on or prior to the first anniversary of the Closing
Date and (ii) 1.00% if such repayment occurs after the first anniversary
of the Closing Date but on or before the second anniversary of the Closing
Date.


 


(g)   Notwithstanding the foregoing
provisions of this Section 2.11, no mandatory prepayments shall be
required pursuant to Section 2.11(b) to the extent that an amount
equal to the applicable Net Proceeds is applied to prepay amounts outstanding
under the First Lien Credit Agreement.


 


SECTION 2.12.      Fees.  (a)   The Borrower agrees (i) to
pay to the Administrative Agent, for the account of the Administrative Agent,
the agency fees set forth in the Administrative Agent Fee Letter at the times
and in the amount specified therein (the “Administrative Agent Fees”)
and (ii) to pay to the Collateral Agent, for the account of the Collateral
Agent, such fees and expenses as may be agreed to from time to time between the
Borrower and the Collateral Agent, when and as due (the “Collateral Agent
Fees”).


 


(b)   All Fees shall be paid on the dates
due, in immediately available funds, to (i) the Collateral Agent and (ii) the
Administrative Agent for distribution, if and as appropriate, among the
Lenders.  Once paid, none of the Fees
shall be refundable under any circumstances.


 


SECTION 2.13.      Interest.  (a)  The Loans comprising each ABR
Borrowing shall bear interest at the ABR plus the Applicable Margin.


 


(b)   The Loans comprising each Eurocurrency
Borrowing shall bear interest at the Adjusted LIBO Rate for the Interest Period
in effect for such Borrowing plus the Applicable Margin.


 


(c)   Notwithstanding the foregoing, if any
principal of or interest on any Loan or any Fees or other amount payable by the
Borrower hereunder is not paid when due, whether at stated maturity, upon
acceleration or otherwise, such overdue amount shall bear interest, after as
well as before judgment, at a rate per annum equal to (i) in the case of
overdue principal of any Loan, 2% plus the rate otherwise applicable to such
Loan as provided in the preceding paragraphs of this Section or (ii) in
the case of any other amount, 2% plus the rate applicable to ABR Loans as
provided in paragraph (a) of this Section.


 


(d)   Accrued interest on each Loan shall be
payable in arrears on each Interest Payment Date for such Loan on the Maturity
Date; provided that (i) interest accrued pursuant to
paragraph (c) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan, accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurocurrency Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion.


 


(e)   All interest hereunder shall be
computed on the basis of a year of 360 days, except that interest computed by
reference to the ABR at times when the ABR is based on the Prime Rate shall


 


36

















 


be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).  The applicable ABR, Adjusted LIBO Rate or
LIBO Rate shall be determined by the Administrative Agent, and such determination
shall be conclusive absent manifest error.


 


SECTION 2.14.      Alternate
Rate of Interest.  If prior to the
commencement of any Interest Period for a Eurocurrency Borrowing:


 


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


 


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


 


then the Administrative Agent shall give written notice thereof to the
Borrower and the Lenders as promptly as practicable thereafter and, until the
Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurocurrency Borrowing shall be ineffective
and such Borrowing shall be converted to or continued as on the last day of the
Interest Period applicable thereto an ABR Borrowing, and (ii) if any
Borrowing Request requests a Eurocurrency Borrowing, such Borrowing shall be
made as an ABR Borrowing.


 


SECTION 2.15.      Increased
Costs.  (a)  If any Change
in Law shall:


 


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


 


(ii)   impose
on any Lender or the London interbank market any other condition affecting this
Agreement or Eurocurrency Loans made by such Lender;


 


and the result of any of the foregoing shall be to increase the cost to
such Lender of making or maintaining any Eurocurrency Loan (or of maintaining
its obligation to make any such Loan) or to increase the cost to such Lender or
to reduce the amount of any sum received or receivable by such Lender hereunder
(whether of principal, interest or otherwise), then within thirty days of receipt
of a certificate of the type specified in paragraph (c) below the Borrower
will pay to such Lender such additional amount or amounts as will compensate
such Lender for such additional costs incurred or reduction suffered.


 


(b)   If any Lender determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender’s capital or on the capital of such
Lender’s holding company, if any, as a consequence of this Agreement or the
Loans made by such Lender to a level below that which such Lender or such
Lender’s holding company could have achieved but for such Change in Law (taking
into consideration such Lender’s policies and the policies of such Lender’s
holding company with respect to capital adequacy), then from time to time
within thirty days of receipt of a certificate of the type specified in
paragraph (c) below the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender or such Lender’s holding company
for any such reduction suffered.


 


37














 


(c)   A certificate of a Lender setting
forth in reasonable detail the calculation of the amount or amounts necessary
to compensate such Lender or its holding company, as applicable, as specified
in paragraph (a) or (b) of this Section shall be delivered to
the Borrower and shall be conclusive absent manifest error.  The Borrower shall pay such Lender the amount
shown as due on any such certificate within 30 days after receipt thereof.


 


(d)   Promptly after any Lender has
determined that it will make a request for increased compensation pursuant to
this Section 2.15, such Lender shall notify the Borrower
thereof.  Failure or delay on the part of
any Lender to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender’s right to demand such compensation; provided
that the Borrower shall not be required to compensate a Lender pursuant to this
Section for any increased costs or reductions incurred more than 90 days
prior to the date that such Lender notifies the Borrower of the Change in Law
giving rise to such increased costs or reductions and of such Lender’s
intention to claim compensation therefor; provided, further,
that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 90-day period referred to above shall be extended to
include the period of retroactive effect thereof


 


(e)   This Section 2.15 shall
not apply to Taxes, which shall be exclusively governed by Section 2.17.


 


SECTION 2.16.      Break
Funding Payments.  In the event of (a) the
payment of any principal of any Eurocurrency Loan other than on the last day of
an Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurocurrency Loan other than on the
last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Eurocurrency Loan on the date specified
in any notice delivered pursuant hereto or (d) the assignment of any
Eurocurrency Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.19,
then, in any such event, the Borrower shall compensate each Lender for the
loss, cost and expense attributable to such event (excluding loss of
margin).  A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive
pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error.  The
Borrower shall pay such Lender the amount shown as due on any such certificate
within 30 days after receipt thereof.


 


SECTION 2.17.      Taxes.  (a)  Any and all payments by or on
account of any obligation of any Loan Party hereunder shall be made free and
clear of and without deduction or withholding for any Indemnified Taxes or
Other Taxes; provided that if a Loan Party shall be required to deduct
any Indemnified Taxes or Other Taxes from such payments, then (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section) the Administrative Agent or any Lender receives an amount equal
to the sum it would have received had no such deductions been made, (ii) such
Loan Party shall make such deductions and (iii) such Loan Party shall
timely pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.


 


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


 


(c)   Each Loan Party shall indemnify the
Administrative Agent and each Lender, within 10 days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent, such Lender on or with respect to any payment by or
on account of any obligation of such Loan Party hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and


 


38

















 


reasonable expenses arising therefrom or with respect thereto.  A certificate as to the amount of such
payment or liability, prepared in good faith and delivered to such Loan Party
by a Lender or by the Administrative Agent on its own behalf, on behalf of
another Agent or on behalf of a Lender, shall be conclusive absent manifest
error.


 


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


 


(e)   Each Foreign Lender shall deliver to
the Borrower and the Administrative Agent (in such number of copies as shall be
reasonably requested by the recipient) on the date on which such Foreign Lender
becomes a Lender under this Agreement, whichever of the following is
applicable:  (i) duly completed
copies of Internal Revenue Service Form W-8BEN (or any subsequent versions
thereof or successors thereto), claiming eligibility for benefits of an income
tax treaty to which the United States of America is a party, (ii) duly
completed copies of Internal Revenue Service Form W-8ECI (or any
subsequent versions thereof or successors thereto), (iii) in the case of a
Foreign Lender claiming the benefits of the exemption for portfolio interest
under Section 871(h) or 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a “bank”
within the meaning of Section 881(c)(3)(A) of the Code, (B) a
“10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3) or
881(c)(3)(B) of the Code, or (C) a “controlled foreign
corporation” described in Section 881(c)(3)(C) of the Code and
(y) duly completed copies of 
Internal Revenue Service Form W-8BEN (or any subsequent versions thereof
or successors thereto) or (iv) any other form prescribed by applicable law
as a basis for claiming exemption from or a reduction in United States federal
withholding tax duly completed together with such supplementary documentation
as may be prescribed by applicable law to permit the Borrower to determine the
withholding or deduction required to be made. 
Each Foreign Lender shall promptly notify the Borrower and the
Administrative Agent at any time it determines that it is no longer in a
position to provide any previously delivered certificate to the Borrower (or
any other form of certification adopted by the United States of America or
other taxing authorities for such purpose) and shall deliver updated forms
and/or certifications promptly upon the inaccuracy or invalidity of any
previously delivered form or certificate. 
In addition, each Lender that is not a Foreign Lender shall deliver to
the Borrower and the Administrative Agent two copies of Internal Revenue
Service Form W-9 (or any subsequent versions thereof or successors
thereto) on or before the date such Lender becomes a party and upon the
expiration or inaccuracy of any form previously delivered by such Lender.  Notwithstanding any other provision of this
paragraph, a Lender shall not be required to deliver any form pursuant to this
paragraph that such Lender is not legally able to deliver.


 


(f)   If the Administrative Agent or a
Lender receives a refund of any Indemnified Taxes or Other Taxes as to which it
has been indemnified by a Loan Party or with respect to which such Loan Party
has paid additional amounts pursuant to this Section 2.17, it shall
pay over such refund to such Loan Party (but only to the extent of indemnity
payments made, or additional amounts paid, by such Loan Party under this Section 2.17
with respect to the Indemnified Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Administrative Agent or such
Lender (including any Taxes imposed with respect to such refund) as is
determined by the Administrative Agent or Lender and in its sole discretion,
and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided that such Loan Party,
upon the request of the Administrative Agent or such Lender, agrees to repay as
soon as reasonably practicable the amount paid over to such Loan Party (plus
any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Lender in the event the
Administrative Agent or such Lender is required to repay such refund to such
Governmental Authority.  This Section 2.17(f) shall
not be construed to


 


39

















 


require the Administrative Agent or any Lender to make available its
Tax returns (or any other information relating to its Taxes which it deems
confidential) to the Loan Parties or any other person.


 


SECTION 2.18.      Payments
Generally; Pro Rata Treatment; Sharing of Set-offs.  (a)  Unless otherwise specified,
the Borrower shall make each payment required to be made by it hereunder
(whether of principal, interest, fees, or of amounts payable under Section 2.15,
2.16, or 2.17, or otherwise) prior to 2:00 p.m., Local Time,
on the date when due, in immediately available funds, without condition or
deduction for any defense, recoupment, set-off or counterclaim.  Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon.  All such payments
shall be made to the Administrative Agent to the applicable account designated
to the Borrower by the Administrative Agent. 
The Administrative Agent shall distribute any such payments received by
it for the account of any other person to the appropriate recipient promptly
following receipt thereof.  If any
payment or performance obligation hereunder shall be due or required on a day that
is not a Business Day, the date for payment or performance shall be extended to
the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such
extension.  All payments hereunder shall
be made in Dollars.  Any payment required
to be made by the Administrative Agent hereunder shall be deemed to have been
made by the time required if the Administrative Agent shall, at or before such
time, have taken the necessary steps to make such payment in accordance with
the regulations or operating procedures of the clearing or settlement system
used by the Administrative Agent to make such payment.


 


(b)   If at any time insufficient funds are
received by and available to the Administrative Agent from the Borrower to pay
fully all amounts of principal, interest and fees then due from the Borrower
hereunder, such funds (except as otherwise provided in the Collateral Agreement
with respect to the application of amounts realized from the Collateral) shall
be applied (i) first, towards payment of interest and fees then due
from the Borrower hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and (ii) second,
towards payment of principal then due from the Borrower hereunder, ratably
among the parties entitled thereto in accordance with the amounts of principal
then due to such parties.


 


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


 


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(d)   Unless the Administrative Agent shall
have received notice from the Borrower prior to the date on which any payment
is due to the Administrative Agent for the account of the Lenders hereunder
that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders
the amount due.  In such event, if the
Borrower has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date
of payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.


 


(e)   If any Lender shall fail to make any
payment required to be made by it pursuant to Section 2.06(b) or
2.18(d), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for the account of such Lender to satisfy
such Lender’s obligations under such Sections until all such unsatisfied
obligations are fully paid.


 


SECTION 2.19.      Mitigation
Obligations; Replacement of Lenders. 
(a)  If any Lender requests compensation under Section 2.15,
or if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 2.17,
then such Lender shall use reasonable efforts to designate a different Lending
Office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or Affiliates, if, in
the reasonable judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17,
as applicable, in the future and (ii) would not subject such Lender to any
material unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender in any material respect.  The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment.


 


(b)   If any Lender requests compensation
under Section 2.15, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 2.17, or is a Defaulting Lender,
or becomes an Affected Lender, then the Borrower may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, (i) terminate
the Commitments of such Lender and repay all obligations of the Borrower owing
to such Lender relating to the Loans and participations held by such Lender as
of such termination date or (ii) require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 9.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the
prior written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of
an amount equal to the outstanding principal of its Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts) and (iii) in the
case of any such assignment resulting from a claim for compensation under Section 2.15
or payments required to be made pursuant to Section 2.17, such
assignment will result in a reduction in such compensation or payments.  Nothing in this Section 2.19
shall be deemed to prejudice any rights that the Borrower may have against any
Lender that is a Defaulting Lender.


 


(c)   If any Lender (such Lender, a “Non-Consenting
Lender”) has failed to consent to a proposed amendment, waiver, discharge
or termination which pursuant to the terms of Section 9.08 requires
the consent of all of the Lenders affected and with respect to which the
Required Lenders shall


 


41

















 


have granted their consent, then the Borrower shall have the right
(unless such Non-Consenting Lender grants such consent) to replace such
Non-Consenting Lender by (i) terminating the Commitments of such Lender
and repaying all obligations of the Borrower owing to such Lender relating to
the Loans and participations held by such Lender as of such termination date or
(ii) requiring such Non-Consenting Lender to assign all or the affected
portion of its Loans, and its Commitments hereunder to one or more assignees
reasonably acceptable to the Administrative Agent, provided that: (a) all
Obligations of the Borrower owing to such Non-Consenting Lender being replaced
shall be paid in full to such Non-Consenting Lender concurrently with such
assignment, (b) the replacement Lender shall purchase the foregoing by
paying to such Non-Consenting Lender a price equal to the principal amount
thereof plus accrued and unpaid interest thereon, plus any amount equal to the
prepayment premium that would otherwise be received by such Lender under Section 2.11(f) upon
an optional repayment in full of such Lender’s Loans, (c)  in connection
with any such assignment the Borrower, Administrative Agent, such
Non-Consenting Lender shall otherwise comply with Section 9.04, and
(d) the replacement Lender shall grant its consent with respect to the
applicable proposed amendment, waiver, discharge or termination.  Each Lender hereby grants to the
Administrative Agent an irrevocable power of attorney (which power is coupled
with an interest) to execute and deliver, on behalf of such Lender as assignor,
any Assignment and Acceptance necessary to effectuate any assignment of such
Lender’s interests hereunder in the circumstances contemplated by this Section 2.19(c).


 


SECTION 2.20.      Illegality  If any Lender reasonably determines that any
Change in Law has made it unlawful, or that any Governmental Authority has
asserted after the Closing Date that it is unlawful, for any Lender or its
applicable Lending Office to make or maintain any Eurocurrency Loans, then, on
notice thereof by such Lender to the Borrower through the Administrative Agent (at which time such Lender shall be deemed an “Affected
Lender”), any obligations of such Affected Lender to make or
continue Eurocurrency Loans or to convert ABR Borrowings to Eurocurrency
Borrowings shall be suspended until such Affected Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to
such determination no longer exist.  Upon
receipt of such notice, the Borrower shall upon demand from such Affected
Lender (with a copy to the Administrative Agent), either convert all
Eurocurrency Borrowings of such Affected Lender to ABR Borrowings, either on
the last day of the Interest Period therefor, if such Affected Lender may
lawfully continue to maintain such Eurocurrency Borrowings to such day, or
immediately, if such Affected Lender may not lawfully continue to maintain such
Loans.  Upon any such prepayment or
conversion, the Borrower shall also pay accrued interest on the amount so
prepaid or converted.


 


SECTION 2.21.      Incremental
Extensions of Credit.  Subject to the
terms and conditions set forth herein, the Borrower may at any time and from
time to time, request to add additional term loans (the “Incremental
Extensions of Credit”) in minimum principal amounts of $20.0 million, provided
that (a) immediately prior to and after giving effect to any Incremental
Facility Amendment (and the making of any Incremental Extensions of Credit
pursuant thereto), no Default or Event of Default has occurred or is continuing
or shall result therefrom and the Borrower shall be in compliance, on a Pro
Forma Basis (including giving pro forma effect to any
Incremental Facility Amendment (and the making of any Incremental Extensions of
Credit pursuant thereto)), with the Total Leverage Ratio required by Section 6.10
and (b) the aggregate principal amount (or committed amount, if
applicable) of all Incremental Extensions of Credit pursuant to this Section 2.21
shall not exceed (i) $100.0 million minus (ii) the aggregate
principal amount (or committed amount, if applicable) of “Incremental Extensions
of Credit” (as defined in the First Lien Credit Agreement). The Incremental
Extensions of Credit shall rank pari passu in right of
payment and right of security in respect of the Collateral with the Term
Loans.  In the case of additional term
loans, other than amortization, pricing or maturity date, such additional term
loans shall have the same terms as the Term Loans (the “Existing Term Loans”)
existing immediately prior to the effectiveness of an Incremental Facility
Amendment (except as otherwise agreed by the Administrative Agent and
Additional Lenders agreeing to provide a commitment in respect of such


 


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Incremental Extension of Credit provided that
any such agreement shall affect solely the terms of such Incremental Extension
of Credit and not any other Loan or Borrowings or Commitments (or any other
Lender) unless this Agreement has been amended in accordance with Section 9.08
without reference to this Section 2.21); provided that,
without the prior written consent of the Required Lenders, Incremental
Extensions of Credit shall not have a final maturity date earlier than the
Maturity Date and shall not have a weighted average life that is shorter than
that of the then-remaining weighted average life of the Term Loans.  Any additional bank, financial institution,
existing Lender or other person that elects to extend commitments to provide
Incremental Extensions of Credit shall be reasonably satisfactory to the
Borrower and the Administrative Agent (any such bank, financial institution or
other person being called an “Additional Lender”) and shall become a
Lender under this Agreement, pursuant to an amendment (an “Incremental
Facility Amendment”) to this Agreement, giving effect to the modifications permitted
by this Section 2.21, and, as appropriate, the other Loan
Documents, executed by the Borrower, each Additional Lender, if any, and the
Administrative Agent.  Commitments in
respect of Incremental Extensions of Credit shall become Commitments under this
Agreement after giving effect to such Incremental Facility Amendment.  An Incremental Facility Amendment providing
for term loans may, without the consent of any other Lenders, effect such
amendments to this Agreement and the other Loan Documents as may be reasonably
necessary or appropriate, in the opinion of the Administrative Agent, to effect
the provisions of this Section, and provided, however, the
interest rates and fees applicable to any Incremental Extension of Credit shall
be determined by the Borrower and the Additional Lenders (as defined
below).  The effectiveness of any
Incremental Facility Amendment shall be subject to the satisfaction on the date
thereof (each, an “Incremental Facility Closing Date”) of each of the
conditions set forth in Section 4.01 (it being understood that all
references to “the date of such Borrowing” in such Section 4.01
shall be deemed to refer to the Incremental Facility Closing Date), and, except
as otherwise specified in the applicable Incremental Facility Amendment, the
Administrative Agent shall have received legal opinions, board resolutions and
other closing documents and certificates reasonably requested by the
Administrative Agent and consistent with those delivered on the Closing Date
under Section 4.02.  The
proceeds of the Incremental Extensions of Credit may be used for any purpose
not otherwise prohibited hereunder. 
Notwithstanding anything to the contrary in this Section 2.21,
no existing Lender shall be obligated to provide Incremental Extensions of
Credit.


 


ARTICLE
III


 


Representations and Warranties


 


Each of Holdings (solely to the extent applicable to
it) and the Borrower represents and warrants to each of the Lenders that (it
being understood and agreed that the representations and warranties made on the
Closing Date are deemed to be made concurrently with the Transactions):


 


SECTION 3.01.      Organization;
Powers.  Each of Holdings, the
Borrower and each of the Restricted Subsidiaries (a) is a limited
partnership, limited liability company or corporation duly organized, validly
existing and in good standing (or, if applicable in a foreign jurisdiction,
enjoys the equivalent status under the laws of any jurisdiction of organization
outside the United States) under the laws of the jurisdiction of its organization,
(b) has all requisite power and authority to own its property and assets
and to carry on its business as now conducted, (c) is qualified to do
business and in good standing in each jurisdiction where such qualification is
required, except where the failure so to qualify or to be in good standing
could not reasonably be expected to have a Material Adverse Effect.


 


SECTION 3.02.      Authorization.  The execution, delivery and performance by
Holdings, the Borrower and each of the Subsidiary Loan Parties of each of the
Loan Documents to which it is a party, and the borrowings hereunder and the
transactions forming a part of the Transactions (a) have been duly
authorized by all corporate, stockholder, limited partnership or limited
liability company action


 


43

















 


required to be obtained by Holdings, the Borrower and such Subsidiary
Loan Parties and (b) will not (i) violate (A) any provision of (x) law,
statute, rule or regulation applicable to such party, or (y) of the
certificate or articles of incorporation or other constitutive documents or
by-laws of Holdings, the Borrower or any such Subsidiary Loan Party, (B) any
applicable order of any court or any rule, regulation or order of any
Governmental Authority or (C) any provision of any indenture, certificate
of designation for preferred stock, agreement or other instrument to which
Holdings, the Borrower or any such Subsidiary Loan Party is a party or by which
any of them or any of their property is or may be bound, (ii) be in
conflict with, result in a breach of or constitute (alone or with notice or
lapse of time or both) a default under, give rise to a right of or result in
any cancellation or acceleration of any right or obligation (including any
payment) or to a loss of a material benefit under any such indenture,
certificate of designation for preferred stock, agreement or other instrument,
where any such conflict, violation, breach or default referred to in
clause (i)(A)(x), (i)(B), (i)(C) or (ii) of this Section 3.02,
could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, or (iii) result in the creation or imposition of
any Lien upon or with respect to any property or assets now owned or hereafter
acquired by Holdings, the Borrower or any such Subsidiary Loan Party, other
than the Liens created by the Loan Documents and Liens permitted by Section 6.02
hereof.


 


SECTION 3.03.      Enforceability.  This Agreement has been duly executed and
delivered by Holdings and the Borrower and constitutes, and each other Loan
Document when executed and delivered by each Loan Party that is party thereto
will constitute, a legal, valid and binding obligation of such Loan Party
enforceable against each such Loan Party in accordance with its terms, subject
to (i) the effects of bankruptcy, insolvency, moratorium, reorganization,
fraudulent conveyance or other similar laws affecting creditors’ rights
generally, (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and (iii) implied
covenants of good faith and fair dealing.


 


SECTION 3.04.      Governmental Approvals.  No action, consent or approval of,
registration or filing with or any other action by any Governmental Authority
is or will be required in connection with the Transactions, except for (a) the
filing of Uniform Commercial Code financing statements, (b) filings with
the United States Patent and Trademark Office and the United States Copyright
Office and comparable offices in foreign jurisdictions and equivalent filings
in foreign jurisdictions, (c) recordation of the Mortgages, (d) such
as have been made or obtained and are in full force and effect, (e) such
actions, consents, approvals, registrations or filings the failure to be
obtained or made which could not reasonably be expected to have a Material
Adverse Effect and (f) filings or other actions listed on Schedule 3.04.


 


SECTION 3.05.      Financial Statements.  (a)  The audited combined balance
sheets of Generac and its Subsidiaries at December 31, 2003, 2004 and
2005, and the audited combined statements of income and cash flows of Generac
and it Subsidiaries for such fiscal years, reported on by and accompanied by an
audit opinion from Deloitte & Touche LLP, copies of which have
heretofore been furnished to each Lender, present fairly in all material
respects the combined financial condition of Generac and its Subsidiaries for
such periods and as at such dates and the combined results of operations and
cash flows of Generac and its Subsidiaries for the years then ended.


 


(b)   The unaudited interim consolidated
balance sheet of Generac and its Subsidiaries as at June 30, 2006, and the
related unaudited interim combined statements of income and cash flows for the
6-month period ended June 30, 2006 (including for the comparable period in
fiscal year 2005), present fairly in all material respects the combined
financial condition of Generac and its Subsidiaries as at such date (subject to
normal year-end audit adjustments).  All
such financial statements have been prepared in accordance with GAAP (subject
to (i) normal year-end adjustments and (ii) the absence of notes),
except as approved by the aforementioned firm of accountants and disclosed
therein.


 


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SECTION 3.06.      No Material Adverse Effect.  Since December 31, 2005, there has been
no event, development, circumstance or change has occurred that has or would
reasonably be expected to have a Material Adverse Effect.


 


SECTION 3.07.      Title to Properties; Possession Under
Leases.  (a)  Each of
Holdings, the Borrower and its Restricted Subsidiaries has good and insurable
fee simple title to the Mortgaged Properties, and good and insurable fee simple
title to, or easements or other limited property interests in, all its other
real properties and has good and valid title to its personal property and
assets, in each case, free and clear of Liens except for defects in title that
do not impair the value thereof in any material respect or interfere with its
ability to conduct its business as currently conducted or to utilize such
properties and assets for their intended purposes and Liens expressly permitted
by Section 6.02 or arising by operation of law and except where the
failure to have such title or interest or existence of such Lien could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.


 


(b)   Each of Holdings, the Borrower and the
Restricted Subsidiaries owns or possesses, or is licensed or otherwise has the
right to use, all patents, trademarks, service marks, trade names and
copyrights and all licenses and rights with respect to the foregoing,
reasonably necessary for the present conduct of its business, without any
conflict (of which the Borrower has been notified in writing) with the rights
of others, except where the failure to have
such rights or where such conflicts and restrictions could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.


 


SECTION 3.08.      Subsidiaries.  (a)  Schedule 3.08(a) 
sets forth as of the Closing Date the name and jurisdiction of incorporation,
formation or organization of each Subsidiary of Holdings and, as to each such
Subsidiary, the percentage of each class of outstanding Equity Interests owned
by Holdings or by any such subsidiary.


 


(b)   As of the Closing Date, there are no
outstanding subscriptions, options, warrants, calls, rights or other agreements
or commitments (other than directors’ qualifying shares) of any nature relating
to any Equity Interests of any Restricted Subsidiaries of the Borrower.


 


SECTION 3.09.      Litigation; Compliance with Laws.  (a)  There are no actions, suits,
investigations or proceedings at law or in equity or by or on behalf of any
Governmental Authority or in arbitration now pending against, or to the
knowledge of Holdings or the Borrower threatened in writing against, Holdings
or the Borrower or any of its Restricted Subsidiaries or any business, property
or rights of any such person (i) that involve any Loan Document or the
Transactions or (ii) that would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.


 


(b)   None of Holdings, the Borrower, the
Subsidiaries or their respective properties or assets is in violation of any
law, rule or regulation (including any zoning, building, ordinance, code
or approval or any building permit, but excluding any Environmental Laws that
are the subject of Section 3.16) or any restriction of record or
agreement affecting any Mortgaged Property, or is in default with respect to
any judgment, writ, injunction or decree of any Governmental Authority, where
such violation or default could reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect.


 


SECTION 3.10.      Investment Company Act.  None of Holdings, the Borrower and the
Restricted Subsidiaries is an “investment company” as defined in, or subject to
regulation under, the Investment Company Act of 1940, as amended.


 


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SECTION 3.11.      Use
of Proceeds.  The Borrower will use
the proceeds of the Term Loans made on the Closing Date, together with the
proceeds of the First Lien Financing, solely to consummate the Transactions
(including the payment of Transaction Costs).


 


SECTION 3.12.      Federal Reserve Regulations.  (a)  None of Holdings, the Borrower
and the Restricted Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.


 


(b)   No part of the proceeds of any Loan
will be used, whether directly or indirectly, and whether immediately,
incidentally or ultimately, (i) to purchase or carry Margin Stock or to
extend credit to others for the purpose of purchasing or carrying Margin Stock
or to refund indebtedness originally incurred for such purpose, or (ii) for
any purpose that entails a violation of, or that is inconsistent with, the
provisions of the Regulations of the Board, including Regulation U or
Regulation X.


 


SECTION 3.13.      Tax Returns.


 


(a)   Each of Holdings, the Borrower and the
Subsidiaries has filed or caused to be filed all U.S. federal, state, local and
non-U.S. Tax returns required to have been filed by it that are material to
such companies, taken as a whole, and each such Tax return is true and correct
in all material respects, except, in each case, as could not be, individually
or in the aggregate, reasonably expected to have a Material Adverse Effect;


 


(b)   Each of Holdings, the Borrower and the
Subsidiaries has timely paid or caused to be timely paid all Taxes shown to be
due and payable by it on the returns referred to in clause (a) and
all other Taxes or assessments (or made adequate provision (in accordance with
GAAP) for the payment of all such amounts due) with respect to all periods or
portions thereof ending on or before the Closing Date (except Taxes or
assessments that are being contested in good faith by appropriate proceedings
in accordance with Section 5.03 and for which Holdings, the
Borrower or any of its Subsidiaries (as the case may be) has set aside on its
books adequate reserves in accordance with GAAP), which Taxes, if not paid or
adequately provided for, could, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; and


 


(c)   Other than as could not be,
individually or in the aggregate, reasonably expected to have a Material
Adverse Effect, with respect to each of Holdings, the Borrower and the
Subsidiaries, no tax lien has been filed, and, to the knowledge of the Borrower
and its Subsidiaries, no claim is being asserted, with respect to any such
Taxes.


 


SECTION 3.14.      No Material Misstatements.  To the Borrower’s knowledge, (a)  all
written information (other than the Projections, other forward looking
information and information of a general economic or industry specific nature)
(the “Information”) concerning Holdings, the Borrower, its Subsidiaries
and the Transactions included in the Information Memorandum or otherwise
prepared by or on behalf of the foregoing or their representatives and made
available, by or on behalf of Holdings or the Borrower, to the Joint Lead
Arrangers, any Lenders or the Administrative Agent in connection with the
Transactions or any other transactions contemplated hereby, when taken as a
whole, were true and correct in all material respects as of the Closing Date
and does not as of such date contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
contained therein not materially misleading in light of the circumstances under
which such statements were made.


 


(b)   The Projections furnished to the Joint
Lead Arrangers, the Administrative Agent or the Lenders (i) have been
prepared in good faith based upon assumptions believed by the Borrower to be
reasonable at the time made, as of the date the Projections were furnished to
the Joint Lead Arrangers, the


 


46

















 


Administrative Agent or the Lenders and as of the Closing Date (it
being understood that actual results may vary from the Projections and that
such variations may be material).


 


SECTION 3.15.      Employee Benefit Plans.  (a)  Except as could not reasonably
be expected, individually or in the aggregate, to have a Material Adverse
Effect:  (i) each of the Borrower,
the Restricted Subsidiaries and the ERISA Affiliates is in compliance with the
applicable provisions of ERISA and the provisions of the Code relating to Plans
and the regulations and published interpretations thereunder; (ii) no
Reportable Event has occurred during the past five years as to which the
Borrower, any of its Restricted Subsidiaries or any ERISA Affiliate was
required to file a report with the PBGC, other than reports that have been
filed; (iii) the present value of all benefit liabilities under each Plan
of the Borrower its Restricted Subsidiaries and the ERISA Affiliates (based on
those assumptions used to fund such Plan), does not exceed the value of the assets
of such Plan and the present value of all accrued benefit obligations of all
underfunded Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) does not exceed the value of the
assets of all such underfunded Plans; (iv) no ERISA Event has occurred or
is reasonably expected to occur; and (v) none of the Borrower, the
Restricted Subsidiaries and the ERISA Affiliates has received any written
notification that any Multiemployer Plan is in reorganization or is in
endangered or critical status or has been terminated within the meaning of
Title IV of ERISA, or has knowledge that any Multiemployer Plan is reasonably
expected to be in reorganization or in endangered or critical status or to be
terminated.


 


(b)   With respect to each employee benefit
arrangement mandated by non-US law (a “Foreign Benefit Arrangement”) and with
respect to each employee benefit plan (within the meaning of Section 3(3) of
ERISA, whether or not subject to ERISA) maintained or contributed to by any of
the Borrower, the Restricted Subsidiaries or any ERISA Affiliate that is not
subject to US law (a “Foreign Plan”), (i) any employer and employee
contributions required by applicable law or by the terms of such Foreign
Arrangement or Foreign Plan have been made, or, if applicable, accrued in
accordance with normal accounting practices; (ii) the accrued benefit
obligations of each Foreign Plan with respect to all current and former
participants (based on the assumptions used to fund such Foreign Plan) do not
exceed the assets of such Foreign Plan; (iii) each Foreign Plan that is
required to be registered has been registered and has been maintained in good
standing with applicable regulatory authorities; and (iv) each such
Foreign Benefit Arrangement and Foreign Plan is in compliance (A) with all
applicable provisions of law and all applicable regulations and published
interpretations thereunder with respect to such Foreign Plan or Foreign Benefit
Arrangement and (B) with the terms of such plan, except, in each case, for
such noncompliance that could not reasonably be expected to have a Material
Adverse Effect..


 


SECTION 3.16.      Environmental Matters.  Except as to matters that could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect: (i) no written notice of violation, request for
information, order, complaint or assertion of penalty has been received by the
Borrower or any of its Restricted Subsidiaries, and there are no judicial,
administrative or other actions, suits or proceedings pending or, to the
knowledge of the Borrower, threatened which allege a violation of or liability
under any Environmental Laws or concerning Hazardous Materials, in each case
relating to the Borrower or any of its Restricted Subsidiaries, (ii) each
of the Borrower and its Restricted Subsidiaries has all permits necessary for
its operations to comply with all applicable Environmental Laws and is, and
during the term of all applicable statutes of limitation, has been, in compliance
with the terms of such permits and with all other applicable Environmental
Laws, (iii) no Hazardous Material is located at any property currently or
formerly owned, operated or leased by the Borrower or any of its Restricted
Subsidiaries in quantities or concentrations that would reasonably be expected
to give rise to any liability or obligation of the Borrower or any of its
Restricted Subsidiaries under any Environmental Laws, and no Hazardous Material
has been generated by or on behalf of the Borrower or any of its Restricted
Subsidiaries that has been transported to or Released at or from any location
in a manner that would reasonably be expected to give rise to any liability or
obligation of the Borrower or any of its


 


47

















 


Restricted Subsidiaries, and (iv) there is no
agreement to which the Borrower or any of its Restricted Subsidiaries is a
party in which the Borrower or any of its Restricted Subsidiaries has assumed
or undertaken, or retained, responsibility for any known or reasonably likely
liability or obligation arising under or relating to Environmental Laws.


 


SECTION 3.17.      Security Documents.  (a)  The Collateral Agreement is
effective to create in favor of the Collateral Agent (for the benefit of the
Secured Parties) a legal, valid and enforceable security interest in the
Collateral described therein and proceeds thereof.  In the case of the Pledged Collateral
described in the Collateral Agreement, when certificates or promissory notes,
as applicable, representing such Pledged Collateral are delivered to the
Collateral Agent (together with transfer powers or endorsements executed in
blank), and in the case of the other Collateral described in the Collateral
Agreement (other than registered copyrights and copyright applications), when
financing statements and other filings described on Schedule 3.17 are
filed by the Administrative Agent in the offices specified on Schedule 3.17,
the Collateral Agent (for the benefit of the Secured Parties) shall have a
fully perfected Lien on, and security interest in, all right, title and
interest of the Loan Parties in such Collateral and, subject to Section 9-315
of the New York Uniform Commercial Code, the proceeds thereof, as security for
the Obligations to the extent perfection can be obtained by filing Uniform
Commercial Code financing statements, in each case prior and superior in right
to any other person (except, in the case of Collateral other than Pledged
Collateral, Liens expressly permitted by Section 6.02 and Liens
having priority by operation of law).


 


(b)   When the Collateral Agreement or a
summary thereof is properly filed by the Administrative Agent in the United
States Copyright Office or the United States Patent and Trademark Office, as
applicable, the Collateral Agent (for the benefit of the Secured Parties) shall
have a fully perfected Lien on, and security interest in, all right, title and
interest of the Loan Parties thereunder in the Collateral consisting of
registered copyrights and copyright applications, in each case prior and
superior in right to any other person except Liens expressly permitted by Section 6.02
and Liens having priority by operation of law (it being understood that
subsequent recordings in the United States Copyright Office or United States
Patent and Trademark Office, as the case may be, may be necessary to perfect a
lien on registered copyrights and copyright applications acquired by the
grantors after the Closing Date).


 


(c)   The Mortgages shall be effective to
create in favor of the Collateral Agent (for the benefit of the Secured
Parties) a legal, valid and enforceable Lien on all of the Loan Parties’ right,
title and interest in and to the Mortgaged Property thereunder and the proceeds
thereof, and when such Mortgages are filed or recorded by Administrative Agent
in the proper real estate filing or recording offices, the Collateral Agent
(for the benefit of the Secured Parties) shall have a fully perfected Lien on,
and security interest in, all right, title and interest of the Loan Parties in
such Mortgaged Property and, to the extent applicable, subject to Section 9-315
of the Uniform Commercial Code, the proceeds thereof, in each case prior and
superior in right to any other person, other than with respect to the rights of
a person pursuant to Liens expressly permitted by Section 6.02 and
Liens having priority by operation of law.


 


SECTION 3.18.      Solvency.  (a)  Immediately after giving
effect to the Transactions on the Closing Date and immediately following the
making of each Loan on the Closing Date and after giving effect to the
application of the proceeds of each Loan, (i) the fair value of the assets
of Holdings, the Borrower and its Subsidiaries on a consolidated basis, at a
fair valuation, will exceed the debts and liabilities, direct, subordinated,
contingent or otherwise, of Holdings, the Borrower and its Subsidiaries on a
consolidated basis, respectively; (ii) the present fair saleable value of
the property of Holdings, the Borrower and its Subsidiaries on a consolidated
basis will be greater than the amount that will be required to pay the probable
liability of Holdings, the Borrower and its Subsidiaries on a consolidated
basis, respectively, on their debts and other liabilities, direct,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (iii) Holdings, the Borrower and its
Subsidiaries


 


48

















 


on a consolidated basis will be able to pay their debts and
liabilities, direct, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; (iv) Holdings, the Borrower and
its Subsidiaries on a consolidated basis will not have unreasonably small
capital with which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted following the
Closing Date; and (v) neither Holdings, the Borrower, nor any of its
Subsidiaries shall be “insolvent”
under the meaning assigned to such term in 11 U.S.C. §101 et. seq. and
Wisconsin Statutes Chapter 242.


 


(b)   Neither Holdings nor the Borrower
intends to, and neither Holdings nor the Borrower believes that it or any of
its subsidiaries will, incur debts beyond the ability of Holdings and its Subsidiaries,
on a consolidated basis, to pay such debts as they mature, taking into account
the timing and amounts of cash to be received by it or any such subsidiary and
the timing and amounts of cash to be payable on or in respect of its
Indebtedness or the Indebtedness of any such subsidiary.


 


SECTION 3.19.      Labor Matters.  Except as, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect:  (a) there are no strikes or other labor
disputes pending or, to the knowledge of Holdings or the Borrower, threatened
in writing against the Borrower or any of its Restricted Subsidiaries; (b) the
hours worked and payments made to employees of the Borrower and its Restricted
Subsidiaries have not been in violation of the Fair Labor Standards Act or any
other applicable law dealing with such matters; and (c) all payments due
from the Borrower or any of its Restricted Subsidiaries or for which any claim
may be made against the Borrower or any of its Restricted Subsidiaries, on account
of wages and employee health and welfare insurance and other benefits have been
paid or accrued as a liability on the books of the Borrower or such Restricted
Subsidiary to the extent required by GAAP. 
Except as, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect the consummation of the Transactions
will not give rise to a right of termination or right of renegotiation on the
part of any union under any material collective bargaining agreement to which
the Borrower or any of its Subsidiaries (or any predecessor) is a party or by
which Holdings, the Borrower or any of its Subsidiaries (or any predecessor) is
bound.


 


SECTION 3.20.      Insurance.  Schedule 3.20 sets forth a true,
complete and correct description of all material insurance maintained by or on
behalf of Holdings, the Borrower or the Subsidiaries as of the Closing
Date.  As of such date, such insurance is
in full force and effect.


 


SECTION 3.21.      Transaction Documents.  Holdings and the Borrower have delivered to
the Administrative Agent a true and correct copy of the Merger Agreement
(including all schedules, exhibits, amendments, supplements and modifications
thereto) and the First Lien Loan Documents.


 


SECTION 3.22.      Patriot Act.  To the extent applicable, each Loan 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).  To the knowledge of the Borrower, 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 3.23.      No
Default.  Neither Holdings, the
Borrower nor any of their Restricted 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


 


49

















 


exists which, with the giving of notice or the lapse of time or both,
could constitute such a default, except where the consequences, direct or
indirect, of such default or defaults, if any, could not reasonably be expected
to have a Material Adverse Effect.


 


ARTICLE
IV


 


Conditions of Lending


 


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


 


SECTION 4.01.      Conditions.  On the Closing Date (and any Incremental
Facility Closing Date):


 


(a)   The Administrative Agent shall have
received, in the case of a Borrowing, a Borrowing Request as required by Section 2.03.


 


(b)   The representations and warranties set
forth in Article III hereof shall be true and correct in all
material respects as of such date, with the same effect as though made on and
as of such date, except to the extent such representations and warranties
expressly relate to an earlier date (in which case such representations and
warranties shall be true and correct in all material respects as of such earlier
date); provided that, notwithstanding anything to the contrary contained
herein, the only representation relating to the Borrower and its Subsidiaries
and their businesses the making of which shall be a condition to Borrowing on
the Closing Date, shall be (i) the representations made by Generac in the
Merger Agreement as are material to the interests of the Lenders, but only to
the extent that Holdings and the Borrower have the right to terminate their
obligations under the Merger Agreement as a result of a breach of such
representations in the Merger Agreement and (ii) the representations and
warranties in Sections 3.01, 3.02, 3.03, 3.10 and 3.12
of this Agreement.


 


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


 


Each Borrowing shall be deemed to constitute a
representation and warranty by the Borrower on the date of such Borrowing,
issuance, amendment, extension or renewal as applicable, that the conditions
specified in paragraphs (b) and (c) of this Section 4.01
shall have been satisfied on such date in accordance with the terms of such
paragraphs.


 


SECTION 4.02.      Additional Conditions.  On the Closing Date:


 


(a)   The Administrative Agent (or its
counsel) shall have received from each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party or (ii) written
evidence satisfactory to the Administrative Agent (which may include fax
transmission of a signed signature page of this Agreement) that such party
has signed a counterpart of this Agreement.


 


(b)   The Administrative Agent shall have
received, on behalf of itself and the Lenders on the Closing Date, a written
opinion of Weil, Gotshal & Manges LLP, special counsel for Holdings
and the Borrower, (A) dated the Closing Date, (B) addressed to the
Administrative Agent, the Collateral Agent and the Lenders on the Closing Date
and (C) in form and substance reasonably satisfactory to the
Administrative Agent and covering such other matters relating to the Loan
Documents and the Transactions as the Administrative Agent shall reasonably
request, and each of Holdings and the Borrower hereby instructs its counsel to
deliver such opinions.


 


50














 


(c)   The Administrative Agent shall have received in the
case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and
(iv) below:


 


(i)   a copy of the
certificate or articles of incorporation, certificate of limited partnership or
certificate of formation, including all amendments thereto, of each Loan Party,
certified as of a recent date by the Secretary of State (or other similar
official) of the jurisdiction of its organization, and a certificate as to the
good standing (to the extent such concept or a similar concept exists under the
laws of such jurisdiction) of each such Loan Party as of a recent date from
such Secretary of State (or other similar official);


 


(ii)   a certificate
of the secretary or assistant secretary or similar officer of each Loan Party
dated the Closing Date and certifying:


 


(A)          that attached thereto
is a true and complete copy of the by-laws (or limited partnership agreement,
limited liability company agreement or other equivalent governing documents) of
such Loan Party as in effect on the Closing Date and at all times since a date
prior to the date of the resolutions described in clause (B) below,


 


(B)           that attached
thereto is a true and complete copy of resolutions duly adopted by the board of
directors (or equivalent governing body) of such Loan Party (or its managing
general partner or managing member) authorizing the execution, delivery and
performance of the Loan Documents to which such person is a party and, in the
case of the Borrower, the borrowings hereunder, and that such resolutions have
not been modified, rescinded or amended and are in full force and effect on the
Closing Date,


 


(C)           that the certificate
or articles of incorporation, certificate of limited partnership or certificate
of formation of such Loan Party has not been amended since the date of the last
amendment thereto disclosed pursuant to clause (i) above,


 


(D)          as to the incumbency
and specimen signature of each officer executing any Loan Document or any other
document delivered in connection herewith on behalf of such Loan Party,


 


(E)           as to the absence of
any pending proceeding for the dissolution or liquidation of such Loan Party;


 


(iii)   a certificate
of another officer as to the incumbency and specimen signature of the Secretary
or Assistant Secretary or similar officer executing the certificate pursuant to
clause (ii) above; and


 


(iv)   a certificate
of a Responsible Officer of Holdings or the Borrower certifying that  as of the Closing Date (i) all the
representations and warranties set forth in Section 4.01 are true
and correct and (ii) that as of the Closing Date, no Default or Event of
Default has occurred and is continuing or would result from any Borrowing to
occur on the date hereof or the application of the proceeds thereof.


 


(d)  
(i) The Collateral and Guarantee Requirement shall have been satisfied, (ii) the
Administrative Agent shall have received a duly completed Collateral
Questionnaire dated the Closing Date, together with all attachments
contemplated thereby, (iii) the Administrative Agent shall have received
the results of a search of the Uniform Commercial Code (or equivalent) filings
made with respect to the Loan Parties and copies of the financing statements
(or similar documents) disclosed by 


 


51

















 


such search and (iv) the
Administrative Agent shall have received evidence reasonably satisfactory to
the Administrative Agent that the Liens indicated by such financing statements
(or similar documents) are either permitted by Section 6.02 or have
been released (or authorized for release in a manner satisfactory of the
Agent).


 


(e)  
The Lenders shall have received the financial statements, Projections and other
financial information referred to in Sections 3.05 and Section 3.14.


 


(f)  
On the Closing Date, substantially concurrently with the funding of the Loans,
Holdings and its Subsidiaries shall have (i) consummated the Merger in all
material respects on the terms described in the Merger Agreement and no
provisions thereof shall have been waived, amended, supplemented or otherwise
modified in a manner adverse to the Lenders in any material respect without the
consent of the Administrative Agent and the Administrative Agent under the
First Lien Credit Agreement, (ii) consummated the Equity Financing, (iii) repaid
in full all Existing Debt (other than Indebtedness permitted under Section 6.01)
and caused the termination of any commitments to lend or make other extensions
of credit under all such Existing Debt, (v) delivered to the
Administrative Agent all documents or instruments necessary to release all
Liens securing Indebtedness or other obligations of Holdings and its
Subsidiaries being so repaid or terminated, and (vi) made arrangements
satisfactory to Administrative Agent with respect to the cancellation of any
letters of credit outstanding with respect to the Indebtedness being so repaid
or terminated, or the issuance of letters of credit under the First Lien Credit
Agreement to support the obligations of Holdings and its Subsidiaries with
respect thereto.


 


(g)  
The Lenders shall have received a solvency certificate substantially in the
form of Exhibit F and signed by the Chief Financial Officer of the
Borrower.


 


(h)   The
Agents shall have received all fees payable thereto or to any Lender on or
prior to the Closing Date and, to the extent invoiced, all other amounts due
and payable pursuant to the Loan Documents on or prior to the Closing Date,
including, to the extent invoiced, reimbursement or payment of all reasonable
out-of-pocket expenses (including reasonable fees, charges and disbursements of
Simpson Thacher & Bartlett LLP) required to be reimbursed or paid by
the Loan Parties hereunder or under any other Loan Document.


 


(i)   Since June 30, 2006, except as contemplated
by the Acquisition and the Transactions, there shall not have occurred and
there is no circumstance or occurrence that is reasonably likely to have
(individually or in the aggregate) a Material Adverse Effect (as such term is
defined in the Merger Agreement).


 


(j)  
The Agents shall
have received, at least ten days prior to the Closing Date, all
documentation and other information required by regulatory authorities under
applicable “know your customer” and anti-money laundering rules and regulations,
including without limitation the USA PATRIOT Act.


 


(k)  
The Administrative Agent shall have received duly executed originals of a
letter of direction from the Borrower addressed to the Administrative Agent, on
behalf of itself and Lenders, with respect to the disbursement on the Closing
Date of the proceeds of the Loans made on such date.


 


Each Agent and
each Lender, by delivering its signature page to this Agreement and
funding a Loan on the Closing Date shall be deemed to have acknowledged receipt
of and consented to and approved each Loan Document and each other document
required to be approved by any Agent or Lender, as applicable, on the Closing
Date.


 


52

















 


ARTICLE V


 


Affirmative Covenants


 


Each of Holdings
(solely as to Sections 5.01, 5.05 and 5.09 as applicable
to it) and the Borrower covenants and agrees with each Lender that so long as
this Agreement shall remain in effect and until the Commitments have been
terminated and the principal of and interest on each Loan, all Fees and all
other expenses or amounts payable under any Loan Document (other than obligations for taxes, costs,
indemnifications, reimbursements, damages and other contingent liabilities in
respect of which no claim or demand for payment has been made or, in the case
of indemnifications, no notice been given (or reasonably satisfactory
arrangements have otherwise been made)) shall have been paid in full,
unless the Required Lenders shall otherwise consent in writing, the Borrower (and
Holdings solely to the extent applicable to it) will, and the Borrower will
cause each of its Restricted Subsidiaries to:


 


SECTION 5.01.              Existence; Businesses and Properties.  (a)  Do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal
existence, except (i) where the failure to do so would not reasonably be
expected to have a Material Adverse Effect, (ii) as otherwise expressly
permitted under Section 6.05, and (iii) the liquidation or
dissolution of Restricted Subsidiaries if the assets of such Restricted
Subsidiaries (to the extent they exceed estimated liabilities) are acquired by
the Borrower or a Subsidiary of the Borrower.


 


(b)  
Except where the failure to do so would not reasonably be expected to have a
Material Adverse Effect, do or cause to be done all things necessary to (i) lawfully
obtain, preserve, renew, extend and keep in full force and effect the permits,
franchises, authorizations, patents, trademarks, service marks, trade names,
copyrights, licenses and rights with respect thereto reasonably necessary to
the normal conduct of the business of the Borrower and its Restricted
Subsidiaries, and (ii) at all times maintain and preserve all property
reasonably necessary to the normal conduct of the business of the Borrower and
its Restricted Subsidiaries and keep such property in satisfactory repair,
working order and condition and from time to time make, or cause to be made,
all needful and proper repairs, renewals, additions, improvements and
replacements thereto in accordance with prudent industry practice (in each case
except as expressly permitted by this Agreement).


 


SECTION 5.02.              Insurance. 
(a)  Maintain, with financially sound and reputable insurance
companies, insurance in such amounts and against such risks as are customarily
maintained by similarly situated companies engaged in the same or similar
businesses operating in the same or similar locations.  Each such policy of insurance shall (i) name
the Collateral Agent, on behalf of Secured Parties as an additional insured
thereunder as its interests may appear, (ii) in the case of each casualty
insurance policy, contain a loss payable clause or endorsement, reasonably
satisfactory in form and substance to the Administrative Agent, that, from and
after the Discharge of First Lien Obligations (as defined in the Intercreditor
Agreement) names the Collateral Agent, on behalf of Lenders as the loss payee
thereunder and provides for at least thirty days’ prior written notice to the
Administrative Agent of any cancellation of such policy.


 


(b)  
If at any time the area in which the Premises (as defined in the Mortgages) are
located is designated a special “flood hazard area” in any Flood Insurance Rate
Map published by the Federal Emergency Management Agency (or any successor
agency), obtain flood insurance in such reasonable total amount as the
Administrative Agent may from time to time reasonably require, and otherwise
comply with the National Flood Insurance Program as set forth in the Flood Disaster
Protection Act of 1973, as it may be amended from time to time.


 


53

















 


SECTION 5.03.              Taxes. 
Pay and discharge promptly when due all material Taxes, imposed upon it
or upon its income or profits or in respect of its property, as well as all
lawful claims which, if unpaid, might give rise to a Lien (other than a Lien
permitted under Section 6.02) upon such properties or any part
thereof except to the extent not overdue by more than 30 days or, if more than
30 days overdue; (i) the validity or amount thereof shall be contested in
good faith by appropriate proceedings, and the Borrower or the affected
Restricted Subsidiary, as applicable, shall have set aside on its books
reserves in accordance with GAAP with respect thereto or (ii) with respect
to which the failure to make payment could not reasonably be expected to have a
Material Adverse Effect, and (b) in the case of a Tax or claim which has
or may become a Lien on any of the Collateral, such contest proceedings
conclusively operate to stay the sale of any portion of the Collateral to
satisfy such Tax or claim.


 


SECTION 5.04.              Financial Statements, Reports,
etc.  Furnish to the
Administrative Agent (which will promptly furnish such information to the
Lenders):


 


(a)   within
110 days after the end of each fiscal year (commencing with fiscal year 2006), (x) a
consolidated balance sheet and related statements of operations, cash flows and
owners’ equity showing the financial position of the Borrower and its Subsidiaries
as of the close of such fiscal year and the consolidated results of its
operations during such year and setting forth in comparative form the
corresponding figures for the prior fiscal year, which consolidated balance
sheet and related statements of operations, cash flows and owners’ equity shall
be audited by independent public accountants of recognized national standing
and accompanied by an opinion of such accountants (which opinion shall be
without a “going concern” or like qualification or exception and without any
qualification or exception as to the scope of such audit) to the effect that
such consolidated financial statements fairly present, in all material
respects, the financial condition and results of operations of the Borrower and
its Subsidiaries on a consolidated basis in accordance with GAAP (it being
understood that the delivery by the Borrower of annual reports on Form 10-K
of the Borrower and its consolidated Subsidiaries shall satisfy the
requirements of this Section 5.04(a) to the extent such annual
reports include the information specified herein) and (y) supporting
schedules reconciling such consolidated balance sheet and related statements of
operations, cash flows and owners’ equity with the consolidated financial
condition and results of operations of the Borrower for the relevant period;


 


(b)   within
45 days after the end of each of the first three fiscal quarters of each fiscal
year (commencing with the first fiscal quarter of 2007), (x) a
consolidated balance sheet and related statements of operations and cash flows
showing the financial position of the Borrower and its Subsidiaries as of the
close of such fiscal quarter and the consolidated results of its operations
during such fiscal quarter and the then-elapsed portion of the fiscal year and
setting forth in comparative form the corresponding figures for the
corresponding periods of the prior fiscal year, all of which shall be in
reasonable detail and which consolidated balance sheet and related statements
of operations and cash flows shall be certified by a Financial Officer of the
Borrower on behalf of the Borrower as fairly presenting, in all material
respects, the financial position and results of operations of the Borrower and
its Subsidiaries on a consolidated basis in accordance with GAAP (subject to
normal year-end audit adjustments and the absence of footnotes) (it being
understood that the delivery by the Borrower of quarterly reports on Form 10-Q
of the Borrower and its consolidated Subsidiaries shall satisfy the requirements
of this Section 5.04(b) to the extent such quarterly reports
include the information specified herein) and (y) supporting schedules
reconciling such consolidated balance sheet and related statements of
operations, cash flows and owners’ equity with the consolidated financial
position and results of operations of the Borrower for the relevant period;


 


54

















 


(c)   (i) concurrently
with any delivery of financial statements under paragraphs (a) or (b) above,
a certificate of a Financial Officer of the Borrower in substantially the form
attached hereto as Exhibit I (x) certifying that no Default or
Event of Default has occurred or, if such a Default or an Event of Default or
Default has occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto and (y) commencing
with the fiscal quarter ending September 30, 2007, setting forth
computations in detail reasonably satisfactory to the Administrative Agent
demonstrating compliance with the Total Leverage Ratio and (ii) concurrently
with any delivery of financial statements under paragraph (a) above, (A) a
certificate of the accounting firm opining on or certifying such statements
stating whether they obtained knowledge during the course of their examination
of such statements of any Default or Event of Default under Section 6.10
(which certificate may be limited to accounting matters and disclaims
responsibility for legal interpretations, and may be subject to other customary
qualifications) and (B) a certificate of a Financial Officer of the
Borrower commencing with the 2007 Excess Cash Flow Period, setting forth the
amount, if any, of Excess Cash Flow for the Excess Cash Flow Period then ended
and the Available Excess Cash Flow Amount as of the date of such certificate,
in each case together with the calculation thereof in reasonable detail;


 


(d)   promptly
after the same become publicly available, copies of all periodic and other
publicly available reports, proxy statements and, to the extent requested by
the Administrative Agent, other materials filed by Holdings, the Borrower or
any of its Subsidiaries with the SEC or any securities exchange, or after an
initial public offering, distributed to its stockholders generally, as
applicable and all press releases and other statements made available generally
by Holdings or any of its Subsidiaries to the public concerning material
developments in the business of Holdings or any of its Subsidiaries;


 


(e)   within
90 days after the beginning of each fiscal year, a detailed consolidated and
consolidated quarterly budget for such fiscal year (including a projected
consolidated and consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such fiscal year, and the related consolidated
and consolidated statements of projected cash flow and projected income) and,
as soon as available, significant revisions, if any, of such budget and
quarterly projections with respect to such fiscal year (to the extent that such revisions have been approved by the Borrower’s
board of directors (or equivalent governing body)), including a
description of underlying assumptions with respect thereto (collectively, the “Budget”),
which Budget shall in each case be accompanied by the statement of a Financial
Officer of the Borrower to the effect that, to such Financial Officer’s
knowledge, the Budget is a reasonable estimate for the period covered thereby;


 


(f)    promptly,
a copy of the final management letter of independent accountants submitted to
the board of directors (or equivalent governing body) or any committee thereof
of any of the Borrower or any Restricted Subsidiary in connection with the
annual audit made by independent accountants of the books of the Borrower or
any such Restricted Subsidiary;


 


(g)   promptly
following a request therefor, all documentation and other information that the
Administrative Agent reasonably requests on its behalf or on behalf of any
Lender in order to comply with its ongoing obligations under applicable “know
your customer” and anti-money laundering rules and regulations, including
the USA PATRIOT Act;


 


(h)   together
with the delivery of the annual compliance certificate required by Section 5.04(c),
deliver an updated Collateral Questionnaire reflecting all changes since the
date of the information most recently received pursuant to this paragraph (i) or
Section 5.09(f); and


 


55

















 


(i)    in
connection with each annual renewal of the insurance policies referred to in Section 5.02,
an insurance broker’s certificate evidencing the insurance coverage maintained
by the Loan Parties and a certificate by the Borrower that such insurance is in
compliance with the insurance coverage required by the Loan Documents; and


 


(j)    promptly,
from time to time, such other information regarding the operations, Collateral,
business affairs and financial condition of Holdings, the Borrower or any of
its Subsidiaries, or compliance with the terms of any Loan Document, as in each
case the Administrative Agent may reasonably request (for itself or on behalf
of any Lender or Agent).


 


SECTION 5.05.              Litigation and Other Notices.  Furnish to the Administrative Agent written
notice of the following promptly after any Responsible Officer of Holdings or
the Borrower obtains actual knowledge thereof:


 


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


 


(b)   the
filing or commencement of, or any written threat or notice of intention of any
person to file or commence, any action, suit or proceeding, whether at law or
in equity or by or before any Governmental Authority or in arbitration, against
Holdings, the Borrower or any of its Subsidiaries as to which an adverse
determination is reasonably probable and which, if adversely determined, could
reasonably be expected to have a Material Adverse Effect;


 


(c)   the
occurrence of any ERISA Event that, together with all other ERISA Events that
have occurred, could reasonably be expected to have a Material Adverse Effect;
and


 


(d)   any
other development specific to Holdings, the Borrower or any of its Subsidiaries
that is not a matter of general public knowledge and that has had, or could
reasonably be expected to have, a Material Adverse Effect.


 


SECTION 5.06.              Compliance with Laws.  Comply with all laws, rules, regulations and
orders of any Governmental Authority applicable to it or its property, except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect; provided
that this Section 5.06 shall not apply to Environmental Laws, which
are the subject of Section 5.08, or to laws related to Taxes, which
are the subject of Section 5.03.


 


SECTION 5.07.              Maintaining Records; Access to Properties and
Inspections.  Maintain all financial
records in a manner sufficient to permit the
preparation of consolidated financial statements in accordance with
GAAP.  Upon the request of Administrative
Agent permit any persons designated by the Administrative Agent or, upon the
occurrence and during the continuance of an Event of Default, the Collateral
Agent or any Lender to visit and inspect the financial records and the
properties of Holdings, the Borrower or any of its Subsidiaries at reasonable
times during normal business hours, upon reasonable prior notice to Holdings or
the Borrower, and as often as reasonably requested and to make extracts from
and copies of such financial records, and permit any persons designated by the
Administrative Agent or, upon the occurrence and during the continuance of an
Event of Default, any Lender upon reasonable prior notice to Holdings or the
Borrower to discuss the affairs, finances and condition of Holdings, the
Borrower or any of its Subsidiaries with the officers thereof and independent
accountants therefor (subject to reasonable requirements of confidentiality,
including requirements imposed by law or by contract); provided,
that the Borrower shall have the right to have one or more of its designees
present during any discussions with its independent accountants and provided,
further, that the Administrative Agent shall not exercise its rights
under this Section 5.07 more than two times during any 


 


56

















 


calendar year absent the existence of an
Event of Default and only one such time shall be at the Borrower’s
expense.  To the extent practicable and
so long as no Event of Default has occurred and is continuing, the
Administrative Agent agrees to use commercially reasonable efforts to
coordinate and otherwise to conduct the foregoing visits and inspections so as
to avoid creating unreasonable burdens upon management of the Borrower and its
Subsidiaries.


 


SECTION 5.08.              Compliance with Environmental Laws.  (a)  Comply, and make reasonable
efforts to cause all lessees and other persons occupying its properties to
comply, with all Environmental Laws applicable to its operations and
properties; and obtain and renew all authorizations and permits required
pursuant to Environmental Law for its operations and properties, in each case
in accordance with Environmental Laws. 
This clause (a) shall be deemed not breached by a noncompliance
with the foregoing if, upon learning of such noncompliance, the Borrower and
any affected Subsidiaries promptly undertake reasonable efforts to eliminate
such noncompliance, and such noncompliance and the elimination thereof, in the
aggregate with any other noncompliance with any of the foregoing and the
elimination thereof, could not reasonably be expected to have a Material
Adverse Effect


 


(b)  
Except as could not reasonably be
expected to have a Material Adverse Effect,  generate, use, treat, store, release, dispose
of, and otherwise manage Hazardous Materials in a manner that would not
reasonably be expected to result in a material liability to any Borrower or any
of its Restricted Subsidiaries or to materially affect any real property owned
or leased by any of them; and take reasonable efforts to prevent any other
person from generating, using, treating, storing, releasing, disposing of, or
otherwise managing Hazardous Materials in a manner that could reasonably be
expected to result in a material liability to, or materially affect any real
property owned or operated by, the Borrower or any of its Restricted
Subsidiaries.


 


SECTION 5.09.              Further Assurances; Mortgages.  (a)  Execute any and all further
documents, financing statements, agreements and instruments, and take all such
further actions (including the filing and recording of financing statements,
fixture filings, Mortgages and other documents and recordings of Liens in stock
registries), that may be required under any applicable law, or that the
Administrative Agent may reasonably request, to cause the Collateral and
Guarantee Requirement to be and remain satisfied, all at the expense of the
Loan Parties and provide to the Administrative Agent, from time to time upon
reasonable request, evidence reasonably satisfactory to the Administrative
Agent as to the perfection and priority of the Liens created or intended to be
created by the Security Documents.


 


(b)  
If any asset (including any fee owned real property (other than real property
covered by paragraph (c) below) or improvements thereto or any
interest therein) that has an individual fair market value in an amount greater
than $5.0 million is acquired by Holdings, the Borrower or any Subsidiary Loan
Party after the Closing Date or owned by an entity at the time it becomes a Subsidiary
Loan Party (in each case other than assets constituting Collateral under a
Security Document that become subject to the Lien of such Security Document
upon acquisition thereof), cause such asset to be subjected to a Lien securing
the Obligations and take, and cause the Subsidiary Loan Parties to take, such
actions as shall be necessary or reasonably requested by the Administrative
Agent to grant and perfect such Liens, including actions described in paragraph (a) of
this Section, all at the expense of the Loan Parties, subject to paragraph (c) or
paragraph (g) below.


 


(c)  
Upon the request of the Administrative Agent, grant and cause each of the
Subsidiary Loan Parties to grant to the Collateral Agent for the benefit of the
Secured Parties security interests and mortgages in such owned real property of
the Borrower or any such Subsidiary Loan Parties acquired after the Closing
Date and having a value at the time of acquisition in excess of $5.0 million
pursuant to documentation in such form as is reasonably satisfactory to the
Administrative Agent (each, a 


 


57

















 


“Mortgage”) and
constituting valid and enforceable Liens subject to no other Liens except as
are permitted by Section 6.02. 
Unless otherwise waived by the Administrative Agent, with respect to
each such Mortgage, the Borrower shall deliver (at its expense) to the
Administrative Agent  and Collateral
Agent contemporaneously therewith (i) a policy or policies or marked-up
unconditional binder of title insurance or foreign equivalent thereof, as
applicable, paid for by the Borrower, issued by a nationally recognized title
insurance company insuring the Lien of each such Mortgage as a valid first Lien
on the Mortgaged Property described therein, free of any other Liens except as
permitted by Section 6.02, together with such endorsements,
coinsurance and reinsurance as the Administrative Agent may reasonably request
and (ii) the legal opinions of local U.S. counsel in the state where such
real property is located, in form and substance reasonably satisfactory to the
Administrative Agent.


 


(d)  
If any additional direct or indirect Restricted Subsidiary of Holdings is
formed or acquired after the Closing Date and if such Subsidiary  is a Subsidiary Loan Party, concurrently with
the delivery of financial statements pursuant to Section 5.04(a) or
(b), notify the Administrative Agent, the Collateral Agent and the
Lenders thereof and, within 20 Business Days after such date or such longer
period as the Administrative Agent shall agree, cause the Collateral and
Guarantee Requirement to be satisfied with respect to such Subsidiary and with
respect to any Equity Interest in or Indebtedness of such Subsidiary Loan Party
owned by or on behalf of any Loan Party.


 


(e)  
If any additional Foreign Subsidiary of Holdings is formed or acquired after
the Closing Date and if such Subsidiary is a “first tier” Foreign Subsidiary,
concurrently with the delivery of financial statements pursuant to Section 5.04(a) or
(b), notify the Administrative Agent, the Collateral Agent and the
Lenders thereof and, within 20 Business Days after such date or such longer
period as the Administrative Agent shall reasonably agree, cause the Collateral
and Guarantee Requirement to be satisfied with respect to any Equity Interest
in such Foreign Subsidiary owned by or on behalf of any Loan Party.


 


(f)  
(i) Furnish to the Administrative Agent prompt written notice of any
change in (A) any Loan Party’s corporate or organization name, (B) any
Loan Party’s organizational form or (C) any Loan Party’s organizational
identification number; provided that neither Holdings nor the Borrower
shall effect or permit any such change unless all filings have been made, or
will have been made by the Administrative Agent within any applicable statutory
period, under the Uniform Commercial Code or otherwise that are required in
order for the Collateral Agent to continue at all times following such change
to have a valid, legal and perfected security interest in all the Collateral
for the benefit of the Secured Parties and (ii) promptly notify the
Administrative Agent if any material portion of the Collateral is damaged or
destroyed.


 


(g)  
The Collateral and Guarantee Requirement and the provisions of this Section 5.09
need not be satisfied with respect to (i) any Equity Interests if, and to
the extent that, and for so long as doing so would violate, applicable law or,
other than in the case of Wholly-Owned Subsidiaries, a contractual obligation
binding on such Equity Interests, (ii) any assets acquired after the
Closing Date, to the extent that, and for so long as, taking such actions would
violate applicable law or a contractual obligation binding on such assets that
existed at the time of the acquisition thereof and was not created or made
binding on such assets in contemplation or in connection with the acquisition
of such assets (except in the case of assets acquired with Indebtedness
permitted pursuant to Section 6.01 that is secured by a Lien
permitted pursuant to Section 6.02); (ii) any cash, cash
equivalents or deposit accounts or securities accounts, (iii) any motor
vehicles or similar property subject to state law certificate of title
statutes, (iv) other assets as to which the Administrative Agent
determines, in its reasonable discretion, that the costs of obtaining a
perfected security interest are excessive in relation to the value of the
security to be afforded thereby and (v) other assets which the
Administrative Agent, in consultation with the Borrower, 


 


58

















 


determines, in its reasonable
discretion, should be excluded taking into account the practical operations of
the Borrower’s business and its client relationships.


 


SECTION 5.10.              Fiscal Year; Accounting.  In the case of Holdings and the Borrower,
cause its fiscal year to end on December 31.


 


SECTION 5.11.              Maintenance of Ratings.  At all times use commercially reasonable
efforts to maintain ratings issued by Moody’s and S&P with respect to the
Facilities.


 


SECTION 5.12.              Interest Rate Protection.  Within 90 days after the Closing Date, the
Borrower will enter into, and thereafter for a period of not less than two
years (which may be satisfied with a combination of Eurocurrency Borrowings
hereunder (and as defined in the First Lien Credit Agreement) with an Interest
Period of 12 months and a forward Swap Agreement that effectively fixes the
rate of interest for a continual period of not less than two years) will
maintain in effect, one or more Swap Agreements for interest rate protection, provided
that not more than 50% of the sum of the outstanding Loans under the Term
Facilities and the Term Facility (as defined in the First Lien Credit
Agreement) of the Borrower and its Subsidiaries as of the Closing Date shall be
required to be subject to such Swap Agreements or bear interest at a fixed rate
of interest.


 


SECTION 5.13.              Use of Proceeds. 
Use the proceeds of the Term Loans made on the Closing Date solely to
consummate the Transactions (including the payment of Transaction Costs).


 


SECTION 5.14.              Certification of Public Information.  Concurrently with the delivery of any
document or notice required to be delivered pursuant to any Loan Document, the
Borrower shall indicate in writing whether such document or notice contains
Nonpublic Information.  The Borrower and
each Lender acknowledge that certain of the Lenders may be “public-side”
Lenders (Lenders that do not wish to receive material non-public information
with respect to the Borrower, its Subsidiaries or their securities) and, if
documents or notices required to be delivered pursuant to this Section 5.15
or otherwise are being distributed through IntraLinks/IntraAgency, Syndtrak or
another relevant website or other information platform (the “Platform”), any document
or notice that the Borrower has indicated contains Nonpublic Information shall
not be posted on that portion of the Platform designated for such public-side
Lenders.  If the Borrower has not
indicated whether a document or notice delivered pursuant to this Section 5.15
contains Nonpublic Information, the Administrative Agent reserves the right to
post such document or notice solely on that portion of the Platform designated
for Lenders who wish to receive material nonpublic information with respect to
the Borrower, its Subsidiaries and their securities.


 


ARTICLE VI


 


Negative Covenants


 


Each of
Holdings (solely as to Section 6.08(a)) and the Borrower covenants
and agrees with each Lender that, so long as this Agreement shall remain in
effect and until the Commitments have been terminated and the principal of and
interest on each Loan, all Fees and all other expenses or amounts payable under
any Loan Document (other than obligations for
taxes, costs, indemnifications, reimbursements, damages and other contingent
liabilities in respect of which no claim or demand for payment or has been made
or, in the case of indemnifications, no notice been given or reasonably
satisfactory arrangements have otherwise been made) have been paid in
full, unless the Required Lenders shall otherwise consent in writing, the
Borrower will not and will not permit any of its Restricted Subsidiaries to
(and Holdings as to Section 6.08(a), will not):


 


59














 


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


 


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


 


(b)   Indebtedness pursuant to
Swap Agreements permitted by Section 6.11;


 


(c)   Indebtedness owed to
(including obligations in respect of letters of credit or bank guarantees or
similar instruments for the benefit of) any person providing workers’
compensation, health, disability or other employee benefits or property,
casualty or liability insurance or self-insurance or other similar obligations
to the Borrower or any Restricted Subsidiary, pursuant to reimbursement or
indemnification obligations to such person, provided that upon the
incurrence of Indebtedness with respect to reimbursement obligations regarding
workers’ compensation claims, such obligations are reimbursed not later than 60
days following such incurrence;


 


(d)   Indebtedness of the Borrower
to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary
(including pursuant to the Intercompany Note), provided that (i) Indebtedness
of any Subsidiary that is not a Subsidiary Loan Party to the Loan Parties shall
be permitted under Section 6.04 and (ii) Indebtedness of the
Borrower to any Subsidiary and Indebtedness of any other Loan Party to any
Subsidiary that is not a Subsidiary Loan Party (the “Subordinated
Intercompany Debt”) shall be subordinated to the Obligations pursuant to
the subordination terms set forth in the Intercompany Note;


 


(e)   Indebtedness in respect of
bids, trade contracts (other than for debt for borrowed money), leases (other
than Capital Lease Obligations), statutory obligations, surety, stay, customs
and appeal bonds, performance, performance and completion and return of money
bonds, government contracts, financial assurances and completion guarantees and
similar obligations, in each case provided in the ordinary course of business,
including those incurred to secure health, safety and environmental obligations
in the ordinary course of business (including letters of credit, bank
guarantees or similar instruments in lieu of such items to support the issuance
thereof);


 


(f)    Cash Management Obligations
(as defined in the First Lien Credit Agreement) and other Indebtedness in
respect of netting services, overdraft protection and similar arrangements, in
each case, in connection with cash management and deposit accounts;


 


(g)   (i) Indebtedness
assumed or acquired in connection with Permitted Business Acquisitions, which
Indebtedness in each case, exists at the time of such Permitted Business
Acquisition and is not created in contemplation of such event, the aggregate
principal amount thereof at the time of such acquisition or assumption together
with Indebtedness outstanding pursuant to paragraph (h) of this Section 6.01,
this paragraph (g) and the Remaining Present Value of leases
permitted under Section 6.03 does not exceed the greater of (x) $86.25
million and (y) an amount equal to 11.5% of the consolidated revenues of
the Borrower and its Restricted Subsidiaries for the period of four fiscal
quarters most recently ended on or prior to the date of determination for which
financial statements are available; and (ii) any Permitted Refinancing
Indebtedness incurred to Refinance such Indebtedness;


 


(h)   Capital Lease Obligations,
mortgage financings and purchase money Indebtedness (including any industrial
revenue bond, industrial development bond and similar financings) incurred by
the Borrower or any Restricted Subsidiary prior to or within 270 days after the
acquisition, lease, repair or improvement of the respective asset in order to
finance such acquisition, lease, repair or improvement, and any Permitted
Refinancing Indebtedness in respect 


 


60

















 


thereof,
in an aggregate principal amount that at the time of, and after giving effect
to, the incurrence thereof (together with Indebtedness outstanding pursuant to paragraph (g) of
this Section 6.01, this paragraph (h) and the Remaining
Present Value of leases permitted under Section 6.03) would not
exceed the greater of (x) $86.25 million and (y) an amount equal to
11.5% of the consolidated revenues of the Borrower and its Restricted
Subsidiaries for the period of four fiscal quarters most recently ended on or prior
to the date of determination for which financial statements are available;


 


(i)    Capital Lease Obligations
incurred by the Borrower or any Restricted Subsidiary in respect of any Sale
and Lease-Back Transaction that is permitted under Section 6.03;


 


(j)    First Lien Indebtedness and
any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;


 


(k)   Guarantees (i) by the
Subsidiary Loan Parties of the Indebtedness of the Borrower described in
paragraph (j), (ii) by the Borrower or any Subsidiary Loan Party of
any Indebtedness of any other Loan Party permitted to be incurred under this
Agreement, (iii) by the Borrower or any Subsidiary Loan Party of
Indebtedness otherwise permitted hereunder of any Subsidiary that is not a
Subsidiary Loan Party or (iv) by any Restricted Subsidiary that is not a
Loan Party of Holdings and its Subsidiaries to the extent, in the case of
clauses (iii) and (iv), such Guarantees are permitted by Section 6.04(b),
(j), (m),  (o) or (q); provided that
Guarantees by the Borrower or any Subsidiary Loan Party under this Section 6.01(k) of
any other Indebtedness of a person that is subordinated to the Obligations
shall be expressly subordinated to the Obligations on terms not materially less
favorable to the Lenders as those contained in the subordination of such other
Indebtedness to the Obligations;


 


(l)    Indebtedness arising from
agreements of the Borrower or any Restricted Subsidiary providing for
indemnification, adjustment of purchase or acquisition price or similar obligations,
in each case, incurred or assumed in connection with the acquisition or
disposition of any business or assets (including Equity Interests of
Subsidiaries) of the Borrower or any Subsidiary permitted by Section 6.04
or Section 6.05, other than Guarantees of Indebtedness incurred by
any person acquiring all or any portion of such business or assets for the
purpose of financing such acquisition;


 


(m)  Indebtedness supported by a
letter of credit, under the First Lien Credit Agreement;


 


(n)   Indebtedness consisting of (i) the
financing of insurance premiums or (ii) take-or-pay obligations contained
in supply arrangements, in each case, in the ordinary course of business;


 


(o)   (i) Permitted Debt
Securities and (ii) Permitted Refinancing Indebtedness in respect thereof;
provided that, in the case of clause (i), after giving effect to any
such incurrence, no Event of Default shall have occurred and be continuing and
the Borrower shall be in compliance with the Total Leverage Ratio on a Pro
Forma Basis;


 


(p)   other Indebtedness of the
Borrower or any Restricted Subsidiary, in an aggregate principal amount that at
the time of, and after giving effect to, the incurrence thereof, would not
exceed the sum of $57.5 million plus the amount by which (A) the greater of
(x) $86.25 million and (y) an amount equal to 11.5% of the
consolidated revenues of the Borrower and its Restricted Subsidiaries for the
period of four fiscal quarters most recently ended on or prior to the date of
determination for which financial statements are available exceeds (B) the
sum of all 


 


61

















 


Indebtedness
outstanding pursuant to paragraphs (h) and (i) of this Section 6.01
plus the Remaining Present Value of leases permitted under Section 6.03;


 


(q)   Indebtedness existing on the
Closing Date and set forth on Schedule 6.01 and any Permitted
Refinancing Indebtedness incurred to Refinance such Indebtedness;


 


(r)    letters of credit or bank
guarantees (other than letters of credit issued pursuant to the First Lien
Credit Agreement) having an aggregate face amount not to exceed $17.25 million
outstanding at any time;


 


(s)   Indebtedness incurred by the
Borrower and its Restricted Subsidiaries representing (i) deferred
compensation to directors, officers, employees, members of management and
consultants of such person in the ordinary course of business or (ii) deferred
compensation or other similar arrangements in connection with the Transactions
or any Permitted Business Acquisition;


 


(t)    Indebtedness consisting of
promissory notes issued by the Borrower and its Restricted Subsidiaries to
current or former directors, officers, employees, members of management or
consultants of such person (or their respective estate, heirs, family members,
spouse or former spouse) to finance the purchase or redemption of Equity
Interests of any Parent Entity permitted by Section 6.05;


 


(u)   Indebtedness in respect of
letters of credit, bankers’ acceptances supporting trade payables, warehouse
receipts or similar facilities entered into in the ordinary course of business;
and


 


(v)   all premium (if any),
interest (including post-petition interest), fees, expenses, charges and
additional or contingent interest on Indebtedness described in paragraphs (a) through
(u) above.


 


SECTION 6.02.              Liens.  Create, incur, assume or permit to exist any
Lien on any property or assets (including Equity Interests, evidences of
Indebtedness or other securities of any person) at the time owned by it or on
any income or revenues or rights in respect of any thereof, except:


 


(a)   Liens on property or assets
of the Borrower and its Restricted Subsidiaries existing on the Closing Date
and set forth on Schedule 6.02 or, to the extent not listed in such
Schedule, where such property or assets have a fair market value that does not
exceed $1.15 million in the aggregate and any refinancing, modification,
replacement, renewal or extension thereof; provided, that the Lien does
not extend to any additional property other than after-acquired property that
is affixed to or incorporated in the property covered by such Lien and the
proceeds and products thereof;


 


(b)   any Lien created under the
Loan Documents or permitted in respect of any Mortgaged Property by the terms
of the applicable Mortgage;


 


(c)   any Lien securing Indebtedness
or Permitted Refinancing Indebtedness permitted by Section 6.01(g),
provided that such Lien (i) in the case of Liens securing Capital
Lease Obligations, applies solely to the assets securing such Indebtedness
immediately prior to the consummation of the related Permitted Business
Acquisition and after acquired property, to the extent required by the
documentation governing such Indebtedness (without giving effect to any
amendment thereof effected in contemplation of such acquisition or assumption),
and the 


 


62

















 


proceeds
and products thereof; provided, that individual financings otherwise
permitted to be secured hereunder provided by one person (or its affiliates)
may be cross collateralized to other such financings provided by such person
(or its affiliates), (ii) in the case of Liens securing Indebtedness other
than Capital Lease Obligations or purchase money Indebtedness, such Liens do
not extend to the property of any person other than the person acquired or
formed to make such acquisition and the subsidiaries of such person (which
person shall own no property other than the property acquired in such Permitted
Business Acquisition), (iii) in the case of clause (i) and clause
(ii), such Lien is not created in contemplation of or in connection with
such acquisition or assumption and (iv) in the case of a Lien securing
Permitted Refinancing Indebtedness, any such Lien is permitted, subject to
compliance with clause (e) of the definition of the term “Permitted
Refinancing Indebtedness”;


 


(d)   Liens for Taxes, assessments
or other governmental charges or levies which are not overdue by more than 30
days or, if more than 30 days overdue, (i) which are being contested in
accordance with Section 5.03 or (ii) the aggregate amount of
which is not in excess of $5.75 million;


 


(e)   landlord’s, carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s, construction or other
like Liens arising in the ordinary course of business and securing obligations
that are not overdue by more than 30 days or, if more than 30 days overdue, (i) which
are being contested in accordance with Section 5.03 or (ii) the
aggregate amount of which is not in excess of $5.75 million;


 


(f)    (i) pledges and
deposits made (including obligations in respect of letters of credit, bank
guarantees or similar instruments to secure) in the ordinary course of business
in compliance with the Federal Employers Liability Act or any other workers’
compensation, unemployment insurance and other social security laws or
regulations and deposits securing premiums or liability to insurance carriers
under insurance or self-insurance arrangements in respect of such obligations
or otherwise as permitted in Section 6.01(c) and (ii) pledges
and deposits securing liability for reimbursement or indemnification
obligations of (including obligations in respect of letters of credit, bank
guarantees or similar instruments for the benefit of) insurance carriers in
respect of property, casualty or liability insurance to the Borrower or any
Subsidiary provided by such insurance carriers;


 


(g)   deposits to secure the
performance of bids, trade contracts (other than for debt for borrowed money),
leases (other than Capital Lease Obligations), statutory obligations, surety, stay,
customs and appeal bonds, performance, performance and completion and return of
money bonds, government contracts, financial assurances and completion and
similar obligations and similar obligations of a like nature (including letters
of credit, bank guarantees or similar instruments in lieu of any such items or
to support the issuance thereof) incurred in the ordinary course of business,
including those incurred pursuant to Environmental Laws in the ordinary course
of business;


 


(h)   zoning restrictions,
easements, trackage rights, leases (other than Capital Lease Obligations),
licenses, special assessments, rights-of-way, restrictions on use of real
property and other similar encumbrances incurred in the ordinary course of
business that, in the aggregate, do not interfere in any material respect with
the ordinary conduct of the business of the Borrower or any Subsidiary;


 


(i)    Liens securing Capital
Lease Obligations, mortgage financings, and purchase money Indebtedness or
improvements thereto hereafter acquired, leased or repaired by the Borrower or 


 


63

















 


any
Restricted Subsidiary (including the interests of vendors and lessors under
conditional sale and title retention agreements); provided that (i) such
security interests secure Indebtedness permitted by Section 6.01(h) (including
any Permitted Refinancing Indebtedness in respect thereof), (ii) such
security interests are created, and the Indebtedness secured thereby is
incurred, within 270 days after such acquisition, lease, completion of construction or repair or improvement,
(iii) the Indebtedness secured thereby does not exceed the cost of such
equipment or other property or improvements at the time of such acquisition or
construction, including transaction costs (including any fees, costs or
expenses or prepaid interest or similar items) incurred by the Borrower or any
Restricted Subsidiary in connection with such acquisition or construction or
material repair or improvement or financing thereof and (iv) such security
interests do not apply to any other property or assets of the Borrower or any
Restricted Subsidiary (other than to the proceeds and products of and the
accessions to such equipment or other property or improvements but not to other
parts of the property to which any such improvements are made); provided,
that individual financings otherwise permitted to be secured hereunder provided
by one person (or its affiliates) may be cross collateralized to other such
financings provided by such person (or its affiliates);


 


(j)    Liens arising out of sale
and lease-back transactions permitted under Section 6.03, so long
as such Liens attach only to the property sold and being leased in such
transaction and any accessions thereto or proceeds or products thereof and
related property;


 


(k)   Liens securing judgments
that do not constitute an Event of Default under Section 7.01(j);


 


(l)    Liens disclosed by the
title insurance policies delivered pursuant to Section 5.09 and any
replacement, extension or renewal of any such Lien; provided that such
replacement, extension or renewal Lien shall not cover any property other than
the property that was subject to such Lien prior to such replacement, extension
or renewal; provided, further, that the Indebtedness and other
obligations secured by such replacement, extension or renewal Lien are
permitted by this Agreement;


 


(m)  any interest or title of a
lessor, sublessor, licensor or sublicensee under any leases, subleases,
licenses or sublicenses entered into by the Borrower or any Restricted
Subsidiary in the ordinary course of business;


 


(n)   Liens that are contractual
rights of set-off (i) relating to the establishment of depository
relations with banks not given in connection with the issuance of Indebtedness,
(ii) relating to pooled deposit or sweep accounts of the Borrower or any
Restricted Subsidiary to permit satisfaction of overdraft or similar
obligations incurred in the ordinary course of business of the Borrower or any
Restricted Subsidiary, (iii) relating to purchase orders and other
agreements entered into with customers of the Borrower or any Restricted
Subsidiary in the ordinary course of business and (iv) attaching to
commodity trading or other brokerage accounts incurred in the ordinary course
of business;


 


(o)   Liens arising solely by
virtue of any statutory or common law provision relating to banker’s liens,
rights of set-off or similar rights;


 


(p)   Liens securing obligations
in respect letters of credit permitted under Section 6.01(c), (e), (r) and
(u);


 


64

















 


(q)   (i) leases, subleases,
licenses or sublicenses of property in the ordinary course of business or (ii) rights
reserved to or vested in any person by the terms of any lease, license,
franchise, grant or permit held by the Borrower or any Restricted Subsidiary or
by a statutory provision to terminate any such lease, license, franchise, grant
or permit or to require periodic payments as a condition to the continuance
thereof;


 


(r)    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;


 


(s)   Liens (i) solely on any
cash earnest money deposits or Permitted Investments made by the Borrower or
any of its Restricted Subsidiaries in connection with any letter of intent or
purchase agreement with respect to any Permitted Business Acquisition and (ii) consisting
of an agreement to dispose of any property in a transaction permitted under Section 6.05;


 


(t)    Liens arising from
precautionary UCC financing statements regarding operating leases or
consignment or bailee arrangements;


 


(u)   Liens on securities that are
the subject of repurchase agreements constituting Permitted Investments under
clause (c) of the definition thereof arising out of such repurchase
transaction;


 


(v)   Liens securing obligations
under the First Lien Loan Documents;


 


(w)  Liens on Equity Interests in
Joint Ventures or Unrestricted Subsidiaries securing obligations of such Joint
Venture or Unrestricted Subsidiaries, as applicable;


 


(x)    Liens in favor of the
Borrower or its Restricted Subsidiaries securing Indebtedness permitted under Section 6.04(b);


 


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


 


(z)    other Liens with respect to
property or assets of the Borrower or any Restricted Subsidiaries; provided
that the amount of the Indebtedness or other obligations secured by such Liens
does not exceed $28.75 million at any time.


 


SECTION 6.03.              Sale
and Lease-Back Transactions.  Enter
into any arrangement, directly or indirectly, with any person whereby it shall
sell or transfer any property, real or personal, used or useful in its
business, whether now owned or hereafter acquired, and substantially
contemporaneously rent or lease from the transferee such property or other
property that it intends to use for substantially the same purpose or purposes as
the property being sold or transferred (a “Sale and Lease-Back Transaction”),
provided that a Sale and Lease-Back Transaction shall be permitted (a) with
respect to property (i) owned by the Borrower or any Domestic Subsidiary
which is a Restricted Subsidiary that is acquired, leased, repaired or improved
after the Closing Date so long as such Sale and Lease-Back Transaction is
consummated within 270 days of the acquisition, lease, repair or improvement of
such property or (ii) owned by any Foreign Subsidiary which is a
Restricted Subsidiary regardless of when such property was acquired or (b) with
respect to any property owned by the Borrower or any Domestic Subsidiary which
is a Restricted Subsidiary, if at the time the lease in connection therewith is
entered into, and after giving effect to the entering into of such lease, the
Remaining Present Value of such lease (together with Indebtedness outstanding
pursuant to paragraphs (g) and (h) of Section 6.01 and
the Remaining Present


 


65

















 


Value
of outstanding leases previously entered into under this Section 6.03(b))
would not exceed the greater of (x) $86.25 million and (y) an amount
equal to 11.5% of the consolidated revenues of the Borrower and its Restricted
Subsidiaries for the period of four fiscal quarters most recently ended on or
prior to the date of determination for which financial statements are
available.


 


SECTION 6.04.              Investments,
Loans and Advances.  Purchase, hold
or acquire any Equity Interests, evidences of Indebtedness or other securities
of, make or permit to exist any loans or advances to or Guarantees of the
obligations of, or make or permit to exist any investment or any other interest
in any other person, or make a designation of a Restricted Subsidiary as an
Unrestricted Subsidiary of (each, an “Investment”), except:


 


(a)   the Transactions;


 


(b)   Investments by the Borrower
or any Restricted Subsidiary in the Equity Interests of the Borrower or any
Subsidiary as a result of intercompany loans or Guarantees of Indebtedness
otherwise expressly permitted hereunder of the Borrower or any Subsidiary; provided
that the sum of Investments (valued at the time of the making thereof and
without giving effect to any write-downs or write-offs thereof, but net in the
case of intercompany loans) after the Closing Date by the Borrower and the
Subsidiary Loan Parties in Subsidiaries (including Foreign Subsidiaries of the
Borrower) that are not Subsidiary Loan Parties shall not exceed an aggregate
net amount equal to (x) $40.25 million (plus any return of capital
actually received in cash by the Borrower or any Subsidiary Loan Party in
respect of Investments theretofore made by them pursuant to this
paragraph (b)); plus (y) the portion, if any, of the Available
Basket Amount on the date of such election that the Borrower elects to apply to
this clause(b)(y); and provided  further that intercompany current
liabilities incurred in the ordinary course of business in connection with the
cash management operations of the Borrower and its Restricted Subsidiaries
shall not be included in calculating the limitation in this paragraph at any
time;


 


(c)   Permitted Investments and
investments that were Permitted Investments when made;


 


(d)   Investments arising out of
the receipt by the Borrower or any Subsidiary of non-cash consideration for the
sale of assets permitted under Section 6.05 (excluding Section 6.05(e));


 


(e)   (i) loans and advances
to directors, officers, employees, members of management or consultants of
Holdings, the Borrower or any Restricted Subsidiary in the ordinary course of
business not to exceed $8.625 million in the aggregate at any time outstanding
(calculated without regard to write-downs or write-offs thereof) and (ii) advances
of payroll payments and expenses to directors, officers, employees, members of
management or consultants in the ordinary course of business;


 


(f)    accounts receivable, notes
receivable, security deposits and prepayments arising and trade credit granted
in the ordinary course of business and any Investments received in satisfaction
or partial satisfaction thereof from financially troubled account debtors and
other credits to suppliers made in the ordinary course of business;


 


(g)   Investments under Swap
Agreements permitted pursuant to Section 6.11;


 


(h)   Investments existing on, or
contractually committed as of, the Closing Date and set forth on Schedule 6.04
and any modification, replacement, renewal or extension thereof so long as any
such modification, renewal or extension thereof does not increase the amount of
such Investment except as otherwise permitted by this Section 6.04;


 


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(i)    Investments resulting from
pledges and deposits permitted by Section 6.02(f) and (g);


 


(j)    Investments constituting
Permitted Business Acquisitions;


 


(k)   Guarantees (i) permitted
by Sections 6.01(k) and (ii) of leases (other than
Capital Lease Obligations) or of other obligations not constituting
Indebtedness, in each case in the ordinary course of business;


 


(l)    Investments received in
connection with the bankruptcy or reorganization of any person, or settlement
of obligations of, or other disputes with or judgments against, or foreclosure
or deed in lieu of foreclosure with respect to any Lien held as security for an
obligation, in each case in the ordinary course of business;


 


(m)  Investments of the Borrower
or any Restricted Subsidiary acquired after the Closing Date or of a person
merged into or consolidated with the Borrower or a Restricted Subsidiary, in
each case, in accordance with Section 6.05 (other than Section 6.05(e)),
after the Closing Date to the extent that such Investments were not made in
contemplation of or in connection with such acquisition, merger or
consolidation and were in existence on the date of such acquisition, merger or
consolidation and any modification, replacement, renewal or extension thereof
so long as any such modification, renewal or extension thereof does not
increase the amount of such Investment except as otherwise permitted by this Section 6.04;


 


(n)   acquisitions by the Borrower
of obligations of one or more directors, officers, employees, members or
management or consultants of Holdings, the Borrower or its Subsidiaries in
connection with such person’s acquisition of Equity Interests of Holdings (or
its Parent Entity), so long as no cash is actually advanced by the Borrower or
any of its Subsidiaries to such persons in connection with the acquisition of
any such obligations;


 


(o)   Investments in Holdings in
amounts and for purposes for which dividends or distributions to Holdings are
permitted under Section 6.06;


 


(p)   Investments consisting of
Indebtedness, Liens, Sale and Lease-Back Transactions, mergers, consolidations,
sales of assets and acquisition and dividends and distributions permitted under
Section 6.01, 6.02, 6.03, 6.05 and 6.06;
and


 


(q)   other Investments by the
Borrower or any Restricted Subsidiary in an aggregate amount (valued at the
time of the making thereof, and without giving effect to any write-downs or
write-offs thereof) not to exceed (i) $57.5 million, (plus any
returns of capital actually received in cash by the relevant investor in
respect of investments theretofore made by it pursuant to this
paragraph (q)) plus (ii) the portion, if any, of the Available
Basket Amount on the date of such election that the Borrower elects to apply to
this Section 6.04(q); provided that, with respect to clause
(ii), any such Investment in an Unrestricted Subsidiary may not be used to pay
or facilitate the payment of a dividend or any other distribution to the
ultimate shareholder of any Parent Entity unless such dividend or other
distribution is otherwise permitted by Section 6.06(e).


 


SECTION 6.05.              Mergers,
Consolidations, Sales of Assets and Acquisitions.  Merge into or consolidate with any other
person, or permit any other person to merge into or consolidate with it, or
sell, transfer, lease or otherwise dispose of (in one transaction or in a
series of related transactions) all or any part of its assets (whether now
owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of
any Equity Interests of any Restricted Subsidiary of the Borrower, except that this Section shall not prohibit:


 


67

















 


(a)   (i) the sale of
inventory in the ordinary course of business by the Borrower or any Restricted
Subsidiary, (ii) the sale of surplus, obsolete or worn out equipment or
other property in the ordinary course of business by the Borrower or any
Restricted Subsidiary, (iii) the leasing or subleasing of real property in
the ordinary course of business by the Borrower or any Restricted Subsidiary or
(iv) the sale of or other disposition of Permitted Investments in the
ordinary course of business;


 


(b)   if at the time thereof and
immediately after giving effect thereto no Event of Default shall have occurred
and be continuing, (i) the merger of any Subsidiary of Holdings (which
shall either be (A) newly formed expressly for the purpose of such
transaction and which owns no assets or (B) a Subsidiary of the Borrower)
into the Borrower in a transaction in which the Borrower is the surviving or
resulting entity or the surviving or resulting person expressly assumes the
obligations of the Borrower in a manner reasonably satisfactory to the
Administrative Agent, (ii) the merger or consolidation of any Subsidiary
with or into any other Subsidiary; provided that in a transaction
involving (A) the Borrower or (B) any Subsidiary Loan Party, a
Subsidiary Loan Party shall be the surviving or resulting person or such
transaction shall be an Investment permitted by Section 6.04 or (iii) the
liquidation or dissolution of any Restricted Subsidiary (other than the
Borrower) or change in form of entity of any Restricted Subsidiary if the Borrower
determines in good faith that such liquidation, dissolution or change in form
is in the best interests of the Borrower;


 


(c)   sales, transfers, leases or
other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation
or otherwise); provided that any sales, transfers, leases or other
dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan
Party shall be made in compliance with Section 6.04 and Section 6.07;


 


(d)   Sale and Lease-Back
Transactions permitted by Section 6.03;


 


(e)   Liens permitted by Section 6.02,
Investments permitted by Section 6.04, and dividends,
distributions, redemptions and repurchases permitted by Section 6.06;


 


(f)    the sales, transfers or
other dispositions of receivables in the ordinary course of business and not as
part of an accounts receivables financing transaction;


 


(g)   sales, transfers, leases or
other dispositions of assets by the Borrower or any Restricted Subsidiary not
otherwise permitted by this Section 6.05; provided that the
aggregate gross proceeds (including non-cash proceeds) of any or all assets
sold, transferred, leased or otherwise disposed of in reliance upon this
paragraph (g) shall not exceed during any fiscal year $28.75 million with
any unused amount to be carried forward to the succeeding 730 days; provided,
further, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);


 


(h)   sales, transfers, leases or
other dispositions by the Borrower or any Restricted Subsidiary of assets that
were acquired in connection with an acquisition permitted hereunder (including,
without limitation, Permitted Business Acquisitions); provided that any
such sale, transfer, lease or other disposition shall be made or contractually
committed to be made within 270 days of the date such assets were acquired
by the Borrower or such Subsidiary; and provided  further that, on
a Pro Forma Basis for such disposition of a line of business or manufacturing
facility and the consummation of such Permitted Business Acquisition, the
Borrower and its Restricted Subsidiaries are in compliance with the Total
Leverage Ratio;


 


68














 


(i)  any merger or consolidation
in connection with an Investment permitted under Section 6.04
(including any Subsidiary Redesignation or the designation of an Unrestricted
Subsidiary as a Restricted Subsidiary); provided that (i) if the
continuing or surviving person is a Restricted Subsidiary, such Restricted
Subsidiary shall have complied with its obligations under Section 5.09,
(ii) in the case of a transaction, the purpose of which is a Subsidiary
Redesignation or the designation of an Unrestricted Subsidiary as a Restricted
Subsidiary, such transaction must be consummated in compliance with Section 6.04,
and (iii) if the Borrower is a party thereto, the Borrower shall be the
continuing or surviving person or the continuing or surviving person shall assume
the obligations of the Borrower in a manner reasonably acceptable to the
Administrative Agent;


 


(j)    licensing and
cross-licensing arrangements involving any technology or other intellectual
property of the Borrower or any Restricted Subsidiary in the ordinary course of
business;


 


(k)   sales, leases or other
dispositions of inventory of the Borrower and its Restricted Subsidiaries
determined by the management of the Borrower to be no longer useful or
necessary in the operation of the business of the Borrower or any of its
Subsidiaries;


 


(l)    Permitted Business
Acquisitions;


 


(m)  the issuance of Qualified
Capital Stock by the Borrower;


 


(n)   sales of Equity Interests of
any Subsidiary of the Borrower; provided that, in the case of the sale
of the Equity Interests of a Subsidiary Loan Party, the purchaser shall be the
Borrower or another Subsidiary Loan Party or such transaction shall fit within
another clause of this Section 6.05 or constitute an Investment
permitted by Section 6.04 (other than Section 6.04(d));


 


(o)   sales, transfers, leases and
other dispositions of property to the extent that (A) such property is
exchanged for credit against the purchase price of similar replacement property
or (B) the proceeds of such sale, transfer, lease or other disposition are
promptly applied to the purchase price of such replacement property;


 


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


 


(q)   transfers of property
subject to casualty or condemnation proceeding (including in lieu thereof) upon
receipt of the Net Proceeds therefor;


 


(r)    sales, transfers, leases
and other dispositions of property in the ordinary course of business
consisting of the abandonment of intellectual property rights which, in the
reasonable good faith determination of the Borrower, are not material to the
conduct of the business of the Borrower and its Restricted Subsidiaries;


 


(s)   sales, transfers, leases and
other dispositions of Investments in Joint Ventures to the extent required by,
or made pursuant to, buy/sell arrangements between the joint venture parties
set forth in, joint venture arrangements and similar binding arrangements;


 


(t)    sales, transfers, leases
and other dispositions of real property and related assets in the ordinary
course of business in connection with relocation activities for directors,
officers, 


 


69

















 


employees,
members of management, or consultants of the Borrower and its Restricted
Subsidiaries;


 


(u)   voluntary terminations of
Swap Agreements;


 


(v)   the expiration of any option
agreement in respect of real or personal property;


 


(w)  sales, transfers, leases and
other dispositions of Unrestricted Subsidiaries;


 


(x)    any Restricted Subsidiary
of the Borrower may consummate a merger, dissolution, liquidation or
consolidation, the purpose of which is to effect a sale, lease, transfer or
other disposition of assets otherwise permitted under this Section 6.05;
and


 


(y)  sales, transfers, leases and
other dispositions permitted by Section 6.04 (other than Section 6.04(p))
and Section 6.06 (other than Section 6.06(h)) and Liens
permitted by Section 6.02.


 


Notwithstanding
anything to the contrary contained above in this Section 6.05, (i) no
sale, transfer or other disposition of assets in excess of $5.75 million shall
be permitted by this Section 6.05 (other than sales, transfers,
leases or other dispositions pursuant to clause (b), (c), (l), (r), (s) or
(t)) unless such disposition is for fair market value and (ii) no sale,
transfer or other disposition of assets shall be permitted by paragraph (d) or
(k) of this Section 6.05 unless such disposition is for at
least 75% cash consideration and (iii) no sale, transfer or other
disposition of assets in excess of $5.75 million shall be permitted by
paragraph (g) or (h) of this Section 6.05 unless such
disposition is for at least 75% cash consideration; provided that for
purposes of the 75% cash consideration requirement in the foregoing clauses (ii) and
(iii), (x) the amount of any Indebtedness of the Borrower or any
Restricted Subsidiary (as shown on such person’s most recent balance sheet or
in the notes thereto) that is assumed by the transferee of any such assets and (y) the amount of any trade-in value applied
to the purchase price of any replacement assets acquired in connection with
such sale transfer or disposition shall be deemed to be cash.


 


SECTION 6.06.              Dividends
and Distributions.  Declare or pay,
directly or indirectly, any dividend or make any other distribution (by
reduction of capital or otherwise), whether in cash, property, securities or a
combination thereof, with respect to any of its Equity Interests (other than
dividends and distributions on Equity Interests payable solely by the issuance
of additional Equity Interests of the person paying such dividends or
distributions) or directly or indirectly redeem, purchase, retire or otherwise
acquire for value any of its Equity Interests or set aside any amount for any
such purpose (other than through the issuance of additional Equity Interests of
the person redeeming, purchasing, retiring or acquiring such shares); provided,
however, that:


 


(a)   any Restricted Subsidiary of
the Borrower may declare and pay dividends to, repurchase its Equity Interests
from or make other distributions to the Borrower or to any Restricted
Subsidiary of the Borrower (which, in the case of non-Wholly Owned
Subsidiaries, shall be made (x) to the Borrower or any Restricted
Subsidiary that is a direct or indirect parent of such Subsidiary and to each
other owner of Equity Interests of such Subsidiary based on their relative
ownership interests or (y) to the extent required by agreements set forth
on Schedule 6.07);


 


(b)   the Borrower may declare and
pay dividends or make other distributions as shall be necessary to allow
Holdings (or any Parent Entity) (i) to pay operating expenses in the
ordinary course of business and other corporate overhead, legal, accounting and
other professional fees 


 


70

















 


and
expenses, (ii) to pay fees and expenses related to any debt or equity
offering, investment or acquisition permitted hereunder (whether or not
successful), (iii) to pay  franchise or similar taxes and other fees
and expenses reasonably required in connection with the maintenance of its
existence and its ownership of the Borrower and in order to permit Holdings to
make payments (other than cash interest payments) which would otherwise be
permitted to be paid by the Borrower under Section 6.07(b), (iv) to
finance any Investment permitted to be made under Section 6.04;  provided,
that (A) such dividend or distribution under this clause (iv) shall
be made substantially concurrently with the closing of such Investment and (B) the
Parent Entity shall, immediately following the closing thereof cause all
property acquired to be contributed to the Borrower or one of its Restricted
Subsidiaries or the merger of the person formed or acquired into the Borrower
or one of its Restricted Subsidiaries in order to consummate such Investment;
and (v) the proceeds of which shall be used by any Parent Entity to pay
customary salary, bonus and other benefits payable to directors, officers, employees,
members of management or consultants of the Parent Entity to the extent such
salary, bonuses and other benefits are directly attributable and reasonably
allocated to the operations of the Borrower and its Subsidiaries;


 


(c)   the Borrower may declare and
pay dividends or make other distributions the proceeds of which are used to
purchase or redeem (i) the Equity Interests of any Parent Entity
(including related stock appreciation rights or similar securities) held by
then present or former directors, officers, employees, members of management or
consultants of Holdings, the Borrower or any of its Subsidiaries (or the
estate, heirs, family members, spouse or former spouse of any of the foregoing)
or by any Plan, provided that the aggregate amount of such purchases or
redemptions under this paragraph (c) shall not exceed in any fiscal year
$8.625 million (plus the sum of the amount of (x) net proceeds
received by the Borrower during such fiscal year from sales of Equity Interests
of any Parent Entity to directors, officers, employees, members of management
or consultants of Holdings, the Borrower or any Subsidiary (or the estate,
heirs, family members, spouse or former spouse of any of the foregoing), or any
Plan and (y) net proceeds of any key-man life insurance policies received
during such fiscal year), which, if not used in any year, may be carried
forward to the next subsequent fiscal year and (ii) fractional shares of
stock;


 


(d)   the Borrower may make
non-cash repurchases of Equity Interests deemed to occur upon exercise of stock
options or similar Equity Interests if such repurchased Equity Interests
represent a portion of the exercise price of such options;


 


(e)   the Borrower may pay
dividends or make distributions to Holdings in an aggregate amount equal to (i) $40.25 million
plus (ii) the portion, if any, of the Available Basket Amount on
the date of such election that the Borrower elects to apply to this Section 6.06(e)(ii);
provided that, with respect to clause (ii), at the time of such dividend
or distribution and after giving effect thereto and to any borrowing in
connection therewith, the Total Senior Secured Leverage Ratio on a Pro Forma
Basis does not exceed 5.50:1.00 and, with respect to both clause (i) and
clause (ii), no Default or Event of Default has occurred and is continuing;


 


(f)    the Borrower and any
Subsidiary may pay dividends or other distributions to any direct or indirect
member of an affiliated group of corporations that files a consolidated U.S.
federal tax return with the Borrower in accordance with the Tax Sharing
Agreement (the “Tax Distributions”), provided that, such Tax
Distributions shall not exceed the amount that the Borrower or the Subsidiaries
would have been required to pay in respect of federal, state or local taxes, as
the case may be, in respect of such year if the Borrower or the Subsidiaries
had paid such taxes directly as a stand-alone taxpayer or stand-alone group;


 


71

















 


(g)   the Borrower may make
dividends and distributions with the net proceeds of any issuance of Qualified
Capital Stock after the Closing Date; and


 


(h)   to the extent constituting a
dividend and other distribution permitted under this Section 6.06,
the Borrower and its Restricted Subsidiaries may enter into the transactions
expressly permitted by Section 6.05 (other than Section 6.05(e))
or Section 6.07.


 


SECTION 6.07.              Transactions
with Affiliates.  (a)  Sell
or transfer any property or assets to, or purchase or acquire any property or
assets from, or otherwise engage in any other transaction with, any of its
Affiliates, unless such transaction is (i) otherwise permitted (or
required) under this Agreement or (ii) upon terms no less favorable to the
Borrower or such Restricted Subsidiary, as applicable, than would be obtained
in a comparable arm’s-length transaction with a person that is not an
Affiliate; provided that this clause (ii) shall not apply to (A) the
payment to the Permitted Investors of the monitoring and management fees,
transactions fees and expenses permitted under the Management Agreement or (B) the
indemnification of directors, officers, employees, members of management or
consultants of any Parent Entity, the Borrower and its Subsidiaries in
accordance with customary practice.  Any
transaction or series of related transactions involving the payment of less
than $2.30 million with any such Affiliate shall be deemed to have satisfied
the standard set forth in clause (ii) above if such transaction is
approved by a majority of the Disinterested Directors of the board of managers
(or equivalent governing body) of any Parent Entity, the Borrower or such
Restricted Subsidiary.


 


(b)  
The foregoing paragraph (a) shall not prohibit,


 


(i)    any issuance of
securities, or other payments, awards or grants in cash, securities or
otherwise pursuant to, or the funding of, employment arrangements, stock
options and stock ownership plans approved by the board of directors (or
equivalent governing body) of any Parent Entity,


 


(ii)   loans or advances to directors,
officers, employees, members of management or consultants of Holdings, the
Borrower or any of its Subsidiaries permitted or not prohibited by Section 6.04,


 


(iii)   transactions among
Holdings, the Borrower and the Subsidiary Loan Parties and transactions among
the Subsidiary Loan Parties otherwise or not prohibited by the Loan Documents,


 


(iv)   the payment of fees and
indemnities to directors, officers, employees, members of management or
consultants of any Parent Entity, the Borrower and its Restricted Subsidiaries
in the ordinary course of business,


 


(v)   transactions pursuant to the
Transaction Documents and permitted agreements in existence on the Closing Date
and set forth on Schedule 6.07 or any amendment thereto to the
extent such amendment is not adverse to the Lenders in any material respect,


 


(vi)   (A) any employment or
severance agreements or arrangements entered into by the Borrower or any of its
Restricted Subsidiaries in the ordinary course of business, (B) any
subscription agreement or similar agreement pertaining to the repurchase of
Equity Interests pursuant to put/call rights or similar rights with employees,
officers, directors, members of management or consultants, and (C) any
employee compensation, benefit plan or arrangement, any health, disability or
similar insurance plan which covers employees, and any reasonable employment
contract or arrangement and transactions pursuant thereto,


 


72

















 


(vii)   dividends, distributions,
redemptions and repurchases permitted under Section 6.06,


 


(viii)   any purchase by Holdings
of or contributions to, the equity capital of the Borrower; provided
that all Equity Interests of the Borrower shall be pledged to the Collateral
Agent on behalf of the Lenders pursuant to the Collateral Agreement,


 


(ix)   payments by the Borrower or
any of its Restricted Subsidiaries to the Permitted Investors made for any
financial advisory, financing, underwriting or placement services or in respect
of other investment banking activities, including in connection with
acquisitions or divestitures, which payments are approved by the majority of
the board of directors (or equivalent governing body) of the Borrower, in good
faith,


 


(x)   transactions among the
Borrower and its Restricted Subsidiaries for the purchase or sale of goods,
products, parts and services entered into in the ordinary course of business in
a manner consistent with past practice,


 


(xi)   any transaction in respect
of which the Borrower delivers to the Administrative Agent (for delivery to the
Lenders) a letter addressed to the board of directors (or equivalent governing
body) of the Borrower from an accounting, appraisal or investment banking firm,
in each case of nationally recognized standing that is (A) in the good
faith determination of the Borrower qualified to render such letter and (B) reasonably
satisfactory to the Administrative Agent, which letter states that such
transaction is on terms that are no less favorable to the Borrower or such
Subsidiary, as applicable, than would be obtained in a comparable arm’s-length
transaction with a person that is not an Affiliate,


 


(xii)   the payment of all fees,
expenses, bonuses and awards related to the Transactions contemplated by the
Transaction Documents, including fees to the Permitted Investors,


 


(xiii)   Guarantees permitted by Section 6.01,


 


(xiv)   the issuance and sale of
Qualified Capital Stock or Permitted Debt Securities,


 


(xv)   transactions with Joint
Ventures for the purchase or sale of goods and services entered into in the
ordinary course of business,


 


(xvi)   transactions pursuant to
the Tax Sharing Agreement; and


 


(xvii)   the payment of fees and
expenses, and the making of indemnification payments pursuant to, the
Managements Agreements.


 


SECTION 6.08.              Business
of Holdings, the Borrower and the Subsidiaries.  Notwithstanding any other provisions hereof,
engage at any time in any business or business activity other than:


 


(a)   in the case
of Holdings, (A) ownership and acquisition of Equity Interests in the
Borrower, together with activities directly related thereto, (B) performance
of its obligations under and in connection with the Loan Documents, the First
Lien Loan Documents (and Permitted Refinancing Indebtedness in respect thereof)
and the other agreements contemplated hereby and thereby, (C) actions
incidental to the consummation of the Transactions, (D) the incurrence of
and performance of its obligations related to Indebtedness and Guarantees
incurred by Holdings after the Closing Date and that is directly related to the
other activities referred to in, or otherwise permitted by, this Section 6.08(a) 


 


73

















 


including the payment by Holdings of
dividends or other distributions in respect of its Equity Interest including as
referred to in clause (F), (E) actions required by law to maintain its
existence, (F) the payment of dividends and the making of other
distributions and taxes, (G) the issuance of Equity Interests and (H) activities
incidental to its maintenance and continuance and to the foregoing activities,
or


 


(b)   in the case
of the Borrower and any Restricted Subsidiary, any business or business
activity conducted by any of them on the Closing Date and any business or
business activities incidental or related thereto, or any business or activity
that is reasonably similar thereto or a reasonable extension, development or
expansion thereof or ancillary thereto.


 


Notwithstanding anything to
the contrary contained in herein, Holdings shall not sell, dispose of, grant a
Lien on or otherwise transfer its Equity Interests in the Borrower (other (i) than
Liens created by the Collateral Documents and the First Lien Collateral
Documents, (ii) Liens arising by operation of law that would be permitted
under Section 6.02(d) or (iii) the sale, disposition or other
transfer (whether by purchase and sale, merger, consolidation, liquidation or
otherwise) of the Equity Interests of the Borrower to any Parent Entity that
becomes a Loan Party and agrees to be bound by this Section 6.08).


 


SECTION 6.09.              Limitation
on Modifications of Indebtedness; Modifications of Certificate of
Incorporation, By-Laws and Certain Other Agreements; etc.  (a)  Amend or modify in any manner
materially adverse to the Lenders, or grant any waiver or release under or
terminate in any manner (if such granting or termination shall be materially
adverse to the Lenders), the articles or certificate of incorporation or
by-laws or limited liability company operating agreement of Holdings, the
Borrower or any of the Subsidiary Loan Parties, the Management Agreements or
the Merger Agreement.


 


(b)   Make, or
agree to make, directly or indirectly, any payment or other distribution
(whether in cash, securities or other property) of or in respect of principal
of or interest on any Permitted Debt Securities or any Permitted Refinancing
Indebtedness in respect thereof, or any payment or other distribution (whether
in cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any Permitted Debt Securities or any Permitted
Refinancing Indebtedness in respect thereof (except for Refinancings otherwise
permitted by Section 6.01(j) or (o), except for
payments of regularly scheduled interest, and, to the extent this Agreement is
then in effect, principal on the scheduled maturity date thereof; provided,
however, that the Borrower may at any time and from time to time
repurchase, redeem, acquire, cancel or terminate all or any portion of any
Permitted Debt Securities with the cash proceeds of Qualified Capital Stock
issued by the Borrower, so long as such proceeds are not included in any
determination of the Available Basket Amount, and do not constitute a Specified
Equity Contribution the proceeds of which are applied as contemplated by Section 7.02; or


 


(i)   Amend or modify, or permit
the amendment or modification of, any provision of any Permitted Debt
Securities or any Permitted Refinancing Indebtedness in respect thereof, or any
agreement relating thereto, other than amendments or modifications that are not
materially adverse to Lenders and that do not affect the subordination
provisions thereof (if any) in a manner adverse to the Lenders; or


 


(ii)   Amend or modify, or permit
the amendment or modification of, any provision of the First Lien Loan
Documents except to the extent not prohibited under the Intercreditor
Agreement.


 


(c)   Permit the
Borrower or any Restricted Subsidiary to enter into any agreement or instrument
that by its terms restricts (i) the payment of dividends or distributions
or the making of cash advances to (or the repayment of cash advances from) the
Borrower or any Restricted Subsidiary or 


 


74

















 


(ii) the granting of Liens pursuant to
the Security Documents, in each case other than those arising under any Loan
Document, except, in each case, restrictions existing by reason of:


 


(A)          restrictions imposed by applicable law;


 


(B)           contractual encumbrances or
restrictions in effect on the Closing Date (including under the First Lien Loan
Documents) or contained in any agreements related to any Permitted Refinancing
Indebtedness incurred to Refinance such Indebtedness, or any such encumbrances
or restrictions in any agreements relating to any Permitted Debt Securities
issued after the Closing Date or Permitted Refinancing Indebtedness in respect
thereof, in each case so long as the scope of such encumbrance or restriction
is no more expansive in any material respect than any such encumbrance or
restriction in effect on the Closing Date (or the date of issuance as the case
may be), or any agreement (regardless of whether such agreement is in effect on
the Closing Date) providing for the subordination of Subordinated Intercompany
Debt;


 


(C)           any restriction on a Subsidiary
imposed pursuant to an agreement entered into for the sale or disposition of
all or substantially all the Equity Interests or assets of such Subsidiary
pending the closing of such sale or disposition;


 


(D)          customary provisions in Joint Venture
agreements and other similar agreements applicable to Joint Ventures entered
into in the ordinary course of business;


 


(E)           any restrictions imposed by any
agreement relating to secured Indebtedness permitted by this Agreement to the
extent that such restrictions apply only to the property or assets securing
such Indebtedness;


 


(F)           customary provisions contained in
leases, subleases, licenses or sublicenses of intellectual property and other
similar agreements entered into in the ordinary course of business;


 


(G)           customary provisions restricting
subletting or assignment of any lease governing a leasehold interest;


 


(H)          customary provisions restricting
assignment of any agreement entered into in the ordinary course of business;


 


(I)            customary restrictions and
conditions contained in any agreement relating to the sale of any asset or
person permitted under Section 6.05 pending the consummation of
such sale;


 


(J)            customary restrictions and
conditions contained in the document relating to any Lien, so long as (1) such
Lien is permitted under Section 6.02 and such restrictions or
conditions relate only to the specific asset subject to such Lien and the
proceeds and products thereof, and (2) such restrictions and conditions
are not created for the purpose of avoiding the restrictions imposed by this Section 6.09;


 


(K)          customary net worth provisions
contained in real property leases entered into by Subsidiaries of the Borrower,
so long as the Borrower has determined in good faith that such net worth
provisions could not reasonably be expected to impair the ability of the
Borrower and its Subsidiaries to meet their ongoing obligations;


 


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(L)           any agreement in effect at the time
such person becomes a Restricted Subsidiary, so long as such agreement was not
entered into in contemplation of such person becoming a Restricted Subsidiary;
or


 


(M)         restrictions contained in any documents
documenting Indebtedness of any Foreign Subsidiary permitted hereunder.


 


SECTION 6.10.              Total
Leverage Ratio.  Permit the Total
Leverage Ratio for any Test Period ending on the last day of any fiscal quarter
occurring in any period set forth below, to be in excess of the ratio set forth
below for such period.


 


	
  Period

  	
   

  	
  Ratio

  
	
  October 1,
  2007 to December 31, 2007

  	
   

  	
  9.00 to 1.00

  
	
  January 1,
  2008 to March 31, 2008

  	
   

  	
  9.00 to 1.00

  
	
  April 1,
  2008 to June 30, 2008

  	
   

  	
  8.75 to 1.00

  
	
  July 1,
  2008 to September 30, 2008

  	
   

  	
  8.50 to 1.00

  
	
  October 1,
  2008 to December 31, 2008

  	
   

  	
  8.00 to 1.00

  
	
  January 1,
  2009 to March 31, 2009

  	
   

  	
  8.00 to 1.00

  
	
  April 1,
  2009 to June 30, 2009

  	
   

  	
  7.75 to 1.00

  
	
  July 10,
  2009 to September 30, 2009

  	
   

  	
  7.50 to 1.00

  
	
  October 1,
  2009 to December 31, 2009

  	
   

  	
  7.00 to 1.00

  
	
  January 1,
  2010 to March 31, 2010

  	
   

  	
  7.00 to 1.00

  
	
  April 1,
  2010 to June 30, 2010

  	
   

  	
  6.75 to 1.00

  
	
  July 1,
  2010 to September 30, 2010

  	
   

  	
  6.50 to 1.00

  
	
  October 1,
  2010 to December 31, 2010

  	
   

  	
  6.00 to 1.00

  
	
  January 1,
  2011 to March 31, 2011

  	
   

  	
  6.00 to 1.00

  
	
  April 1,
  2011 to June 30, 2011

  	
   

  	
  5.75 to 1.00

  
	
  July 1,
  2011 to September 30, 2011

  	
   

  	
  5.50 to 1.00

  
	
  Thereafter

  	
   

  	
  5.00 to 1.00

  



 


If the Borrower or a
Restricted Subsidiary intends to take any Restricted Action prior to the date
on which the Borrower first would be required to deliver a compliance
certificate pursuant to Section 5.04(a), then, for purposes of
determining compliance with the Total Leverage Ratio, the applicable Total
Leverage Ratio shall be 9.00:1.00 and EBITDA shall be measured for the most
recent four fiscal quarter period for which quarterly financial statements are
available.


 


SECTION 6.11.              Swap
Agreements.  Enter into any Swap
Agreement, other than (a) Swap Agreements entered into in the ordinary
course of business (and not for speculative purposes) to hedge or mitigate
risks to which the Borrower or any Subsidiary is exposed in the conduct of its
business or the management of its liabilities (including, without limitation,
raw material, supply costs and currency risks), and (b) Swap Agreements
entered into in order to effectively cap, collar or exchange interest rates
(from fixed to floating rates, from one floating rate to another floating rate
or otherwise) with respect to any interest-bearing liability or investment of
the Borrower or any Subsidiary (and not for speculative purposes).


 


SECTION 6.12.               Capital
Expenditures.  Make or commit to make
any Capital Expenditure, except Capital Expenditures of the Borrower and its
Restricted Subsidiaries in the ordinary course of business not exceeding (a) for
the period from the Closing Date to December 31, 2006, $17.25 million; and
for each fiscal year thereafter $34.5 million plus (b) plus the average
Capital Expenditures of any person acquired in connection with a Permitted
Business Acquisition for three fiscal years


 


76

















 


immediately preceding such Permitted Business Acquisition multiplied by
1.25.  Notwithstanding anything to the
contrary in the preceding sentence, (a) to the extent that the aggregate
amount of Capital Expenditures made by the Borrower and its Restricted
Subsidiaries in any fiscal year pursuant to the preceding sentence is less than
the amount permitted for such fiscal year, the amount of the difference may be
carried forward and used to make Capital Expenditures in the immediately
succeeding fiscal year (the “Carryforward Amount”) and (b) if the
aggregate amount of Capital Expenditures made by the Borrower and its
Restricted Subsidiaries in any fiscal year is greater than the amount otherwise
available for Capital Expenditures in such fiscal year (including the
Carryforward Amount), an amount up to 100% of the amount otherwise available in
the immediately succeeding fiscal year pursuant to the preceding sentence may
be reallocated to such current fiscal year so long as the base amount of
Capital Expenditures permitted in the preceding sentence during the next
succeeding fiscal year shall be reduced by such amount carried back.


 


ARTICLE
VII


 


Events of Default


 


SECTION 7.01.              Events
of Default.  In case of the happening
of any of the following events (each, an “Event of Default”):


 


(a)   any representation or
warranty made or deemed made by Holdings, the Borrower or any other Loan Party
in any Loan Document, or in any certificate or other instrument furnished in
connection with or pursuant to any Loan Document, shall prove to have been
false or misleading in any material respect when so made, deemed made pursuant
to the terms of the Loan Documents or furnished by Holdings, the Borrower or
any other Loan Party;


 


(b)   default shall be made in the
payment of any principal of any Loan when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed for prepayment
thereof or by acceleration thereof or otherwise;


 


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


 


(d)   default shall be made in the
due observance or performance by Holdings, the Borrower or any of its
Restricted Subsidiaries of any covenant, condition or agreement contained in Section 5.01(a) (with
respect to Holdings or the Borrower), 5.05(a) or in Article VI;


 


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


 


(f)    (i) any event or
condition occurs that (A) results in the First Lien Indebtedness or any
other Indebtedness in excess of $28.75 million becoming due prior to its
scheduled maturity or (B) enables or permits (with all applicable grace
periods having expired) the holder or holders of First Lien Indebtedness or any
other Indebtedness in excess of $28.75 million or any trustee or agent on its
or their behalf to cause any First Lien Indebtedness or any other Indebtedness
in excess of $28.75 million to become due, or to require the prepayment,
repurchase, redemption or


 


77

















 


defeasance
thereof, prior to its scheduled maturity and which, with respect to this clause
(B) has continued unremedied for a period of 60 consecutive days or (ii) Holdings,
the Borrower or any of its Restricted Subsidiaries shall fail to pay the
principal of any Indebtedness in excess of $28.75 million at the stated final
maturity thereof; provided that this paragraph (f) shall not apply
to secured Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness if such sale or
transfer is permitted hereunder;


 


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


 


(h)   an involuntary proceeding shall
be commenced or an involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of Holdings, the Borrower or
any of its Restricted Subsidiaries, or of a substantial part of the property or
assets of Holdings, the Borrower or any Restricted Subsidiary, under Title 11
of the United States Code, as now constituted or hereafter amended, or any
other federal, state or foreign bankruptcy, insolvency, receivership or similar
law, (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Holdings, the Borrower or any of its
Restricted Subsidiaries or for a substantial part of the property or assets of
Holdings, the Borrower or any of its Restricted Subsidiaries or (iii) the
winding-up or liquidation of Holdings, the Borrower or any Restricted
Subsidiary (except, in the case of any Restricted Subsidiary, in a transaction
permitted by Section 6.05); and such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or ordering
any of the foregoing shall be entered;


 


(i)    Holdings, the Borrower or
any Restricted Subsidiary shall (i) voluntarily commence any proceeding or
file any petition seeking relief under Title 11 of the United States Code, as
now constituted or hereafter amended, or any other federal, state or foreign
bankruptcy, insolvency, receivership or similar law, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or the filing of any petition described in paragraph (h) above,
(iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for Holdings, the
Borrower or any of its Restricted Subsidiaries or for a substantial part of the
property or assets of Holdings, the Borrower or any Restricted Subsidiary, (iv) file
an answer admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of creditors
or (vi) become unable or admit in writing its inability or fail generally
to pay its debts as they become due;


 


(j)    the failure by Holdings,
the Borrower or any Restricted Subsidiary to pay one or more final judgments
aggregating in excess of $28.75 million (to the extent not covered by
third-party insurance as to which the insurer has been notified of such
judgment and does not deny coverage), which judgments are not discharged or
effectively waived or stayed for a period of 60 consecutive days, or any action
shall be legally taken by a judgment creditor to levy upon assets or properties
of Holdings, the Borrower or any Restricted Subsidiary to enforce any such
judgment;


 


(k)   (i) a Reportable Event
or Reportable Events shall have occurred with respect to any Plan or a trustee
shall be appointed by a United States district court to administer any Plan, (ii) the
PBGC shall institute proceedings (including giving notice of intent thereof) to
terminate any Plan or Plans, (iii) Holdings, the Borrower or any
Restricted Subsidiary or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that it has incurred or will be assessed
Withdrawal Liability to such Multiemployer Plan and such person does not have
reasonable grounds for contesting such Withdrawal Liability or is not
contesting such Withdrawal Liability in a timely and appropriate manner, (iv) Holdings,
the Borrower or any Restricted Subsidiary or any ERISA Affiliate shall have
been notified by the sponsor of a Multiemployer 


 


78

















 


Plan
that such Multiemployer Plan is in reorganization or is being terminated,
within the meaning of Title IV of ERISA or (v) Holdings, the Borrower or
any Restricted Subsidiary shall engage in any “prohibited transaction” (as
defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan; and in each case in clauses (i) through (v) above,
such event or condition, together with all other such events or conditions, if
any, could reasonably be expected to have a Material Adverse Effect; or


 


(l)    (i) any Loan Document
shall for any reason cease to be, or shall be asserted in writing by Holdings,
the Borrower or any Restricted Subsidiary not to be, a legal, valid and binding
obligation of any party thereto, (ii) any security interest purported to
be created by any Security Document and to extend to assets that are not
immaterial to Holdings, the Borrower and the Restricted Subsidiaries on a
consolidated basis shall cease to be, or shall be asserted in writing by
Holdings, the Borrower or any other Loan Party not to be (other than in a
notice to the Administrative Agent or the Collateral Agent to take requisite
actions to perfect such Lien), a valid and perfected security interest
(perfected as and having the priority required by this Agreement or the
relevant Security Document and subject to such limitations and restrictions as
are set forth herein and therein) in the securities, assets or properties
covered thereby, except to the extent (x) any such loss of perfection or
priority results from the failure of the Collateral Agent to maintain
possession of certificates actually delivered to it representing securities
pledged under the Collateral Agreement, (y) such loss is covered by a
lender’s title insurance policy as to which the insurer has been notified of
such loss and does not deny coverage and the Administrative Agent shall be
reasonably satisfied with the credit of such insurer or (z) such loss of
perfected security interest may be remedied by the filing of appropriate
documentation without the loss of priority, (iii) the Guarantees pursuant
to the Security Documents by Holdings, the Borrower or the Subsidiary Loan
Parties of any of the Obligations shall cease to be in full force and effect (other
than in accordance with the terms thereof), or shall be asserted in writing by
Holdings or the Borrower or any Subsidiary Loan Party not to be in effect or
not to be legal, valid and binding obligations, (iv) the Obligations of
the Borrower or the Guarantees pursuant to the Security Documents by Holdings,
the Borrower or the Subsidiary Loan Parties shall cease to constitute senior
indebtedness under the subordination provisions of any indenture or other
instruments, agreements and documents evidencing or governing any Permitted
Debt Securities in excess of $28.75 million or such subordination provisions
shall be invalidated or otherwise cease (in each case so long as such
indenture, instrument, agreement or document is then in effect), or shall be asserted
in writing by Holdings, the Borrower or any Subsidiary Loan Party to be invalid
or to cease to be legal, valid and binding obligations of the parties thereto,
enforceable in accordance with their terms;


 


then, and in every such
event (other than an event with respect to the Borrower described in
paragraph (h) or (i)(i), (ii), (iii) or (iv) above), and at
any time thereafter during the continuance of such event, the Administrative
Agent may, and at the request of the Required Lenders shall, upon notice to the
Borrower, take any or all of the following actions, at the same or different
times:  declare the Loans then
outstanding to be forthwith due and payable in whole or in part, whereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder and under any other Loan Document, shall become
forthwith due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived by the Borrower,
anything contained herein or in any other Loan Document to the contrary
notwithstanding; and in any event with respect to the Borrower described in
paragraph (h) or (i)(i), (ii), (iii) or (iv) above,
the principal of the Loans then outstanding, together with accrued interest
thereon and any unpaid accrued Fees and all other liabilities of the Borrower
accrued hereunder and under any other Loan Document, shall automatically become
due and payable without


 


79

















 


presentment, demand, protest
or any other notice of any kind, all of which are hereby expressly waived by
the Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding.


 


SECTION 7.02.              Holdings’s
Right to Cure.


 


(a)  Notwithstanding
anything to the contrary contained in Section 7.01, in the event
that the Borrower fails (or, but for the operation of this Section 7.02,
would fail) to comply with the requirements of the Total Leverage Ratio, until
the expiration of the 20th day subsequent to the date the certificate
calculating the Total Leverage Ratio is required to be delivered pursuant to Section 5.04(c),
the Borrower shall have the right to issue Qualified Capital Stock for cash
(the “Cure Right”), and upon the receipt by the Borrower of such cash
(the “Specified Equity Contribution”) the Total Leverage Ratio shall be
recalculated giving effect to the following pro forma
adjustments:


 


(i)  EBITDA shall
be increased, solely for the purpose of determining compliance with Section 6.10
and not for any other purpose under this Agreement (including taking any
Restricted Action), by an amount equal to the Specified Equity Contribution;
and


 


(ii)  if, after giving
effect to the foregoing recalculations, the Borrower shall then be in
compliance with the requirements of the Total Leverage Ratio, the Borrower
shall be deemed to have satisfied the requirements of the Total Leverage Ratio
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 Total Leverage Ratio that had occurred shall be deemed cured
for this purposes of this Agreement.


 


(b)  Notwithstanding
anything herein to the contrary, (i) in each four-fiscal-quarter period
there shall be at least one fiscal quarter with respect to which the Cure Right
is not exercised, (ii) in each eight fiscal quarter period, there shall be
a period of at least four consecutive fiscal quarters with respect to which the
Cure Right is not exercised and (iii) the Specified Equity Contribution
shall be no greater than the amount required for purposes of complying with the
Total Leverage Ratio.


 


ARTICLE
VIII


 


The Agents


 


SECTION 8.01.              Appointment.  Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender and Wilmington
Trust Company as Collateral Agent of such Lender under this Agreement and the
other Loan Documents and the Collateral Agent, and each such Lender irrevocably
authorizes the Administrative Agent and the Collateral Agent, in such
capacities, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to such Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto.  Notwithstanding
any provision to the contrary elsewhere in this Agreement, neither the
Administrative Agent nor the Collateral Agent shall have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent or the Collateral Agent, as applicable.  Without limiting the generality of the foregoing,
the Agents are hereby expressly authorized to execute any and all documents
(including releases) with respect to the Collateral and the rights of the
Secured Parties with respect thereto, as contemplated by and in accordance with
the provisions of this Agreement and the Security Documents.  Without limiting the foregoing, each Lender
irrevocably appoints the Collateral Agent to act as the “Second Lien Collateral
Agent” under the


 


80

















 


Intercreditor
Agreement and authorizes and directs the Collateral Agent to execute, deliver
and perform the Intercreditor Agreement on such Lender’s behalf and each such
Lender agrees to be bound by the terms thereof.


 


SECTION 8.02.              Delegation
of Duties.  The Administrative Agent
and the Collateral Agent may execute any of its duties under this Agreement and
the other Loan Documents by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.  Neither the Administrative Agent nor the
Collateral Agent shall be responsible for the negligence or misconduct of any
agents or attorneys-in-fact selected by it with reasonable care.


 


SECTION 8.03.              Exculpatory
Provisions.  The Agents shall not
have any duties or obligations except those expressly set forth in the Loan
Documents.  Neither any Agent nor any of
their Related Parties shall be (i) liable for any action lawfully taken or
omitted to be taken by it or such person under or in connection with this
Agreement or any other Loan Document (except to the extent that any of the
foregoing are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from its or such person’s own gross
negligence or willful misconduct) or (ii) responsible in any manner to any
of the Lenders for (or have any duty to ascertain or acquire into) any
recitals, statements, representations or warranties made by any Loan Party or
any officer thereof contained in this Agreement or any other Loan Document or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Agents or any Related Party under or in connection
with, this Agreement or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or for any failure of any Loan Party a party thereto to
perform its obligations hereunder or thereunder.  The Agents shall not (x) be subject to
any fiduciary or other implied duties regardless of whether a Default has
occurred and is continuing and (y) except as expressly set forth in the
Loan Documents, have any duty to disclose, nor shall it be liable for the
failure to disclose, any information relating to Holdings, the Borrower or any
Subsidiary that is communicated to or obtained by the bank serving as
Administrative Agent or any of its affiliates in any capacity.  The Agents shall not be under any obligation
to any Lender to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of any Loan
Party.


 


SECTION 8.04.              Reliance
by Agents.  The Agents and their
respective Related Parties shall be entitled to rely, and shall be fully
protected in relying, upon any instrument, writing, resolution, notice,
consent, certificate, affidavit, letter, fax, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper person or
persons and upon advice and statements of legal counsel (including counsel to
Holdings or the Borrower), independent accountants and other experts selected by
the Agents.  The Agents and their Related
Parties may deem and treat the payee of any Note as the owner thereof for all
purposes unless a written notice of assignment, negotiation or transfer thereof
shall have been filed with the Administrative Agent.  The Agents and their Related Parties shall be
fully justified in failing or refusing to take any action under this Agreement
or any other Loan Document unless it shall first receive such advice or
concurrence of the Required Lenders (or, if so specified by this Agreement, all
Lenders) as any such person deems appropriate or such person shall first be
indemnified to its satisfaction by the Lenders against any and all liability
and expense that may be incurred by such person by reason of taking or
continuing to take any such action.  The
Agents and their respective Related Parties shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
other Loan Documents in accordance with a request of the Required Lenders (or,
if so specified by this Agreement, all Lenders) (or, in the case of the
Collateral Agent, in accordance with a request from the Administrative Agent),
and such request and any action taken or failure to act pursuant thereto shall
be binding upon all the Lenders and all future holders of the Loans.


 


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SECTION 8.05.              Notice
of Default.  No Agent shall be deemed
to have knowledge or notice of the occurrence of any Default or Event of
Default unless such Agent has received notice from a Lender, Holdings or the
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a “notice of default”.  In the event that an Agent receives such a
notice, such Agent shall give notice thereof to the Lenders.  The Agents shall take such action with
respect to such Default or Event of Default as shall be reasonably directed in
writing by the Required Lenders (or, if so specified by this Agreement, all
Lenders (or, in the case of the Collateral Agent, as directed in writing the
Administrative Agent)); provided that unless and until the Agents shall
have received such directions, the Agents may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests of
the Lenders.


 


SECTION 8.06.              Non-Reliance
on Agents and Other Lenders.  Each
Lender expressly acknowledges that neither the Agents nor any of their respective
Related Parties have made any representations or warranties to it and that no
act by any Agent hereafter taken, including any review of the affairs of a Loan
Party or any affiliate of a Loan Party, shall be deemed to constitute any
representation or warranty by any Agent to any Lender.  Each Lender represents to the Agents that it
has, independently and without reliance upon any Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and
their affiliates and made its own decision to make its Loans hereunder and
enter into this Agreement.  Each Lender
also represents that it will, independently and without reliance upon any Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement
and the other Loan Documents, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property, financial
and other condition and creditworthiness of the Loan Parties and their
affiliates.  Except for notices, reports
and other documents expressly required to be furnished to the Lenders by the
Agents hereunder, the Agents shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the
business, operations, property, condition (financial or otherwise), prospects
or creditworthiness of any Loan Party or any affiliate of a Loan Party that may
come into the possession of the Agents or respective Related Parties.


 


SECTION 8.07.              Indemnification.  The Lenders agree to indemnify each Agent in
its capacity as such and its Related Parties (to the extent not reimbursed by
Holdings or the Borrower and without limiting the obligation of Holdings or the
Borrower to do so), each in an amount equal to its pro rata share (based on its Commitments hereunder (or if such
Commitments shall have expired or been terminated, in accordance with the
respective principal amounts of its applicable outstanding Loans)) thereof,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever (including, without limitation, attorneys fees) that may at any
time (whether before or after the payment of the Loans) be imposed on, incurred
by or asserted against such Agent and/or its or their Related Parties in any
way relating to or arising out of, the Commitments, this Agreement, any of the
other Loan Documents or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by such Agent and/or its or their Related Parties under or in
connection with any of the foregoing; provided that no Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
that are found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from such Person’s gross negligence or willful
misconduct.  The agreements in this Section shall
survive the payment of the Loans and all other amounts payable hereunder.


 


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SECTION 8.08.              Agent
in Its Individual Capacity.  Each
Agent and its affiliates may make loans to, accept deposits from and generally
engage in any kind of business with any Loan Party as though such Agent were
not an Agent.  With respect to its Loans
made or renewed by it, each Agent shall have the same rights and powers under
this Agreement and the other Loan Documents as any Lender and may exercise the
same as though it were not an Agent, and the terms “Lender” and “Lenders” shall
include each Agent in its individual capacity.


 


SECTION 8.09.              Successor
Agent.  The Administrative Agent or
the Collateral Agent may resign as Administrative Agent or Collateral Agent, as
applicable, upon 30 days’ notice to the Lenders and the Borrower.  If either the Administrative Agent or the
Collateral Agent shall resign in such capacity under this Agreement and the
other Loan Documents, then the Required Lenders shall appoint from among the
Lenders a successor agent for the Lenders, which successor agent shall (unless
an Event of Default under Sections 7.01 (h) or (i)(i), (ii), (iii) or
(iv) above shall have occurred and be continuing) be subject to
approval by the Borrower (which approval shall not be unreasonably withheld or
delayed), whereupon such successor agent shall succeed to the rights, powers
and duties of the Administrative Agent or the Collateral Agent as the case may
be, and the term “Administrative Agent” or “Collateral Agent”
shall mean such successor agent effective upon such appointment and approval,
and the former Administrative Agent’s or Collateral Agent’s rights, powers and
duties as Administrative Agent or Collateral Agent shall be terminated, without
any other or further act or deed on the part of such former Administrative
Agent or Collateral Agent or any of the parties to this Agreement or any holders
of the Loans.  If no successor agent has
accepted appointment as Administrative Agent or Collateral Agent, as
applicable, by the date that is 30 days following a retiring Administrative
Agent’s or Collateral Agent’s notice of resignation, the retiring
Administrative Agent’s or Collateral Agent’s resignation shall nevertheless
thereupon become effective, and the Lenders shall assume and perform all of the
duties of the Administrative Agent or Collateral Agent, as applicable,
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above; provided that nothing herein shall require
that the Collateral Agent resign or retire from its role as collateral agent
under any Security Document whether referred to therein collateral agent or any
analogous term therein.  After any
retiring Administrative Agent’s resignation as Administrative Agent or
Collateral Agent’s retiring as Collateral Agent, the provisions of this Article VIII
shall inure to its benefit and to the benefit of its officers, directors,
employees, agents, attorneys-in-fact and affiliates as to any actions taken or
omitted to be taken by it while it was Administrative Agent or Collateral
Agent, as applicable, under this Agreement and the other Loan Documents.


 


SECTION 8.10.              Syndication
Agent and Documentation Agent.  Neither the Syndication Agent nor the
Documentation Agent shall have any duties or responsibilities hereunder in its
capacity as such.


 


SECTION 8.11.              Withholding
Tax.  To the extent required by any
applicable law, the Administrative Agent may withhold from any interest payment
to any Lender an amount equivalent to any applicable withholding tax.  If the Internal Revenue Service or any other
Governmental Authority asserts a claim that the Administrative Agent did not
properly withhold tax from amounts paid to or for the account of any Lender
because the appropriate form was not delivered or was not properly executed or
because such Lender failed to notify the Administrative Agent of a change in circumstance
which rendered the exemption from, or reduction of, withholding tax ineffective
or for any other reason, such Lender shall indemnify the Administrative Agent
fully for all amounts paid, directly or indirectly, by the Administrative Agent
as tax or otherwise, including any penalties or interest and together with all
expenses (including legal expenses, allocated internal costs and out-of-pocket
expenses) incurred.


 


SECTION 8.12.              Collateral
Matters, Collateral Agent’s Duties. 
The Collateral Agent is authorized on behalf of all the Lenders and the
other Secured Parties, without the necessity of any


 


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notice to or further consent from the Lenders, from time to time to
take any action with respect to any Collateral or the Security Documents which
may be necessary to perfect and maintain a perfected security interest in and
Liens upon the Collateral granted pursuant to the Loan Documents.  Except for the safe custody of any Collateral
in its possession and the accounting for moneys actually received by it
hereunder or under any of the other Loan Documents, the Collateral Agent shall
have no duty as to any Collateral, as to ascertaining or taking action with
respect to calls, conversions, exchanges, maturities, trades or other matters
relative to any Collateral, whether or not the Collateral Agent is deemed to
have knowledge of such matters, or as to taking of any necessary steps to
create or preserve rights against any parties or any other rights pertaining to
any Collateral (including the filing of UCC-1 Financing Statements, UCC
Continuation Statements or any amendments thereto).  The Collateral Agent shall be deemed to have
exercised appropriate and due care in the custody and preservation of any
Collateral in its possession if such Collateral is accorded treatment
substantially equal to that which other collateral agents accord similar
property.  Each Lender agrees that any
action taken by the Collateral Agent or the Required Lenders in accordance with
the terms of this Agreement or the other Loan Documents, and the exercise by
the Collateral Agent or the Required Lenders of their respective powers set
forth therein or herein, together with such other powers that are reasonably
incidental thereto, shall be binding upon all of the Lenders.


 


ARTICLE
IX


 


Miscellaneous


 


SECTION 9.01.              Notices.  (a)  Notices and other
communications provided for herein shall be in writing and shall be delivered
by hand or overnight courier service, mailed by certified or registered mail or
sent by fax, as follows:


 


(i)  if to any
Loan Party, to Generac Power Systems, Inc., Highway 59 and Hillside Road, P.O. Box
8, Waukesha Wisconsin, 53187, attention Aaron Jagdfeld, York Ragen and Joseph
Kavalary, Telecopier: (262) 968-9372, with a copy to GPS CCMP Merger
Corp. c/o CCMP Capital Advisors, LLC, 245 Park Avenue, 16th Floor, New York, NY, 10167-2403, attention:
Stephen McKenna, Telecopier: (212) xxx-xxxx, with a copy to Weil, Gotshal &
Manges LLP, 200 Crescent Court, Suite 300, Dallas, Texas 75201-6950,
Attention Angela L. Fontana, Telecopier: (214) 746-7777;;


 


(ii)  if to the
Administrative Agent, to JPMorgan Chase Bank, N.A, 1111 Fannin 10th Floor, Houston, TX 77002, Attention: Bammy
Adedugbe, Telecopier: (713) 750-2228.


 


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


 


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


 


(c)  All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date
of receipt if delivered by hand or overnight courier service, sent by fax or
(to the extent permitted by paragraph (b) above)


 


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electronic means or on the
date five Business Days after dispatch by certified or registered mail if
mailed, in each case delivered, sent or mailed (properly addressed) to such
party as provided in this Section 9.01 or in accordance with the
latest unrevoked direction from such party given in accordance with this Section 9.01.


 


(d)  Any
party hereto may change its address or fax number for notices and other
communications hereunder by notice to the other parties hereto.


 


SECTION 9.02.              Survival
of Agreement.  All representations
and warranties made by the Loan Parties herein and in the other Loan Documents
shall be considered to have been relied upon by the Lenders and shall survive
the making of the Loans, the execution and delivery of the Loan Documents, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any Fee or any other amount (other than
obligations for taxes, costs, indemnifications, reimbursements, damages and
other contingent liabilities in respect of which no claim or demand for payment
has been made or, in the case of indemnifications, no notice has been given (or
reasonably satisfactory arrangements have otherwise been made)) payable under
this Agreement or any other Loan Document is outstanding and unpaid and so long
as the Commitments have not been terminated. 
Without prejudice to the survival of any other agreements contained
herein, obligations for taxes, costs, indemnifications, reimbursements, damages
and other contingent liabilities contained herein (including pursuant to Sections 2.15,
2.17 and 9.05) shall survive the payment in full of the principal
and interest hereunder, the termination of the Commitments or this Agreement
limited in the manner set forth herein, or the invalidity or unenforceability
of any term or provision of this Agreement or any other Loan Document.


 


SECTION 9.03.              Binding
Effect.  This Agreement shall become
effective when it shall have been executed by Holdings, the Borrower and the
Administrative Agent and when the Administrative Agent shall have received
copies hereof which, when taken together, bear the signatures of each of the
other parties hereto, and thereafter shall be binding upon and inure to the
benefit of Holdings, the Borrower, the Administrative Agent and each Lender and
their respective permitted successors and assigns.


 


SECTION 9.04.              Successors
and Assigns.  (a)  The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted
hereby, except that (i) the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by the Borrower without
such consent shall be null and void) and (ii) no Lender may assign or
otherwise transfer its rights or obligations hereunder except in accordance
with this Section 9.04. 
Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants (to the extent provided
in paragraph (c) of this Section 9.04), and, to the
extent expressly contemplated hereby, the Related Parties of each of the Agents
and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.


 


(b)  (i)    Subject to the conditions set forth in clause
(ii) below, any Lender may assign to one or more Eligible Assignees (other
than to any Disqualified Institution) all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitments
and the Loans at the time owing to it) (provided, however, that pro
rata assignments shall not be required and each assignment shall be of a
uniform, and not varying, percentage of all rights and obligations under and in
respect of any applicable Loan and any related Commitments) with the prior
written consent (such consent not to be unreasonably withheld or delayed) of
the Borrower, provided that no consent of the Borrower shall be required
for an assignment to an Affiliate of a Lender, or if an Event of Default under Section 7.01(b), (c),
(h) or (i)(i), (ii), (iii) or (iv) has
occurred and is continuing.


 


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


 


(A)          except in the case of an assignment to
a Lender, an affiliate of a Lender or an Related Fund or an assignment of the
entire remaining amount of the assigning Lender’s Commitments or Loans, the
amount of the Commitments or Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $1.0 million, unless each of the Borrower and the Administrative
Agent otherwise consent, provided that (1) no such consent of the
Borrower shall be required if an Event of Default under Section 7.01(b),
(c), (h) or (i)(i), (ii), (iii) or (iv) has
occurred and is continuing and (2) such amounts shall be aggregated in
respect of each Lender and its Affiliates or Related Funds, if any.


 


(B)           the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Acceptance
together with a processing and recordation fee of $3,500; and


 


(C)           the Eligible Assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire and all applicable tax forms.


 


(iii)  Subject to
acceptance and recording thereof pursuant to clause (b)(v) below,
from and after the effective date specified in each Assignment and Acceptance
the Eligible Assignee thereunder shall be a party hereto and, to the extent of
the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections
2.15, 2.16, 2.17 and 9.05, as well as any Fees accrued
for its account and not yet paid).  Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 9.04 shall be
treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of
this Section 9.04.


 


(iv)  The
Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain at one of its offices a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses
of the Lenders, and the Commitments of, and principal amount of the Loans owing
to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive absent manifest error, and the Borrower, the Administrative Agent
and the Lenders may treat each person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary.  The Register shall be available for
inspection by the Borrower and any Lender (with respect to any entry related to
such Lender’s Loans), at any reasonable time and from time to time upon
reasonable prior notice.


 


(v)  Upon its
receipt of a duly completed Assignment and Acceptance executed by an assigning
Lender and an Eligible Assignee, the Eligible Assignee’s completed
Administrative Questionnaire (unless the Eligible Assignee shall already be a
Lender hereunder) and any applicable tax forms, and any written consent to such
assignment required by clause (i) above, the Administrative Agent shall
accept such Assignment and Acceptance and record the information contained
therein in the Register.  No assignment,
whether or not evidenced by a promissory


 


86

















 


note, shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this
clause (v).


 


(c)  (i)  Any
Lender may, without the consent of the Borrower or the Administrative Agent,
sell participations to one or more banks or other entities (other than to any
Company Competitor) (a “Participant”) in all or a portion of such Lender’s
rights and obligations under this Agreement (including all or a portion of its
Commitments and the Loans owing to it); provided that (A) such
Lender’s obligations under this Agreement shall remain unchanged, (B) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (C) the Borrower, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this
Agreement.  Any agreement pursuant to
which a Lender sells such a participation shall provide that such Lender shall
retain the sole right to enforce this Agreement and the other Loan Documents
and to approve any amendment, modification or waiver of any provision of this
Agreement and the other Loan Documents; provided that such agreement may
provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver that requires the consent of
each Lender directly affected thereby pursuant to Section 9.04(a)(i) or
clauses (i), (ii), (iii) or (vi) of the
first proviso to Section 9.08(b). 
Subject to paragraph (c)(ii) of this Section 9.04,
the Borrower agrees that each Participant shall be entitled to the benefits of Sections
2.15, 2.16 and 2.17 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to paragraph (b) of
this Section 9.04.  To the
extent permitted by law, each Participant also shall be entitled to the
benefits of Section 9.06 as though it were a Lender, provided
such Participant shall be subject to Section 2.18(c) as though
it were a Lender.


 


(ii)  A
Participant shall not be entitled to receive any greater payment under Section 2.15,
2.16 or 2.17 than the applicable Lender would have been entitled to receive
with respect to the participation sold to such Participant, unless the sale of
the participation to such Participant is made with the Borrower’s prior written
consent expressly acknowledging such Participant may receive a greater
benefit.  A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.17
to the extent such Participant fails to comply with Section 2.17(e) as
though it were a Lender.


 


(d)  Any
Lender may at any time, without the consent of or notice to the Administrative
Agent or the Borrower, pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section 9.04 shall not apply to any such
pledge or assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any of
its obligations hereunder or substitute any such pledgee or Eligible Assignee
for such Lender as a party hereto.


 


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


 


(f)  Notwithstanding
the foregoing, any Conduit Lender may assign any or all of the Loans it may
have funded hereunder to its designating Lender without the consent of the
Borrower or the Administrative Agent. 
Each of Holdings, the Borrower, each Lender and the Administrative Agent
hereby confirms that it will not institute against a Conduit Lender or join any
other person in instituting against a Conduit Lender any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding under any
state bankruptcy or similar law, for one year and one day after the payment in
full of the latest maturing commercial paper note issued by such Conduit
Lender; provided, however, that each Lender designating any
Conduit Lender hereby agrees to indemnify, save and hold harmless each


 


87

















 


other party hereto and each
Loan Party for any loss, cost, damage or expense arising out of its inability
to institute such a proceeding against such Conduit Lender during such period
of forbearance.


 


(g)  If
the Borrower wishes to replace the Loans or Commitments under any Facility with
ones having different terms, it shall have the option, with the consent of the
Administrative Agent and subject to at least three Business Days’ advance
notice to the Lenders under such Facility, instead of prepaying the Loans or
reducing or terminating the Commitments to be replaced, to (i) require the
Lenders under such Facility to assign such Loans or Commitments to the
Administrative Agent or its designees and (ii) amend the terms thereof in
accordance with Section 9.08 (with such replacement, if applicable,
being deemed to have been made pursuant to Section 9.08(d)).  Pursuant to any such assignment, all Loans
and Commitments to be replaced shall be purchased at par (allocated among the
Lenders under such Facility in the same manner as would be required if such
Loans were being optionally prepaid or such Commitments were being optionally
reduced or terminated by the Borrower), accompanied by payment of any accrued
interest and fees thereon and any amounts owing pursuant to Section 9.05(b).  By receiving such purchase price, the Lenders
under such Facility shall automatically be deemed to have assigned the Loans or
Commitments under such Facility pursuant to the terms of the form of Assignment
and Acceptance attached hereto as Exhibit A, and accordingly no other
action by such Lenders shall be required in connection therewith.  The provisions of this paragraph (g) are
intended to facilitate the maintenance of the perfection and priority of
existing security interests in the Collateral during any such replacement.


 


SECTION 9.05.              Expenses;
Indemnity.  (a)  The
Borrower agrees to pay (i) all reasonable out-of-pocket expenses
(including Other Taxes) incurred by the Administrative Agent in connection with
the preparation of this Agreement and the other Loan Documents, or by the
Administrative Agent in connection with the syndication of the Commitments or
by the Administrative Agent or the Collateral Agent in connection with the
administration of this Agreement (including expenses incurred in connection
with due diligence and initial and ongoing Collateral examination to the extent
incurred with the reasonable prior approval of the Borrower and the reasonable
fees, disbursements and charges for no more than one outside counsel and, if
necessary one local counsel in each jurisdiction where Collateral is located
and one outside counsel to the Collateral Agent) or in connection with the
administration of this Agreement and any amendments, modifications or waivers
of the provisions hereof or thereof (whether or not the Transactions hereby
contemplated shall be consummated) and (ii) all reasonable out-of-pocket
expenses incurred by the Administrative Agent, the Collateral Agent or any
Lender in connection with the enforcement or protection of their rights in
connection with this Agreement and the other Loan Documents, in connection with
the Loans made hereunder (including the reasonable fees, charges and
disbursements of Simpson Thacher & LLP, counsel for the
Administrative Agent and the Joint Lead Arrangers, and, if necessary, the
reasonable fees, charges and disbursements of one local counsel per relevant
jurisdiction and one outside counsel to the Collateral Agent).


 


(b)  The
Borrower agrees to indemnify the Administrative Agent, the Collateral Agent,
the Joint Lead Arrangers, each Lender and each of their respective Affiliates,
successors and assigns and the directors, trustees, officers, employees,
advisors, controlling persons and agents of each of the foregoing (each such
person being called an “Indemnitee”) against, and to hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
reasonable out-of-pocket costs and related expenses (including reasonable
documented fees, charges and disbursements of Simpson Thacher &
Bartlett LLP and, if necessary, one local counsel in each relevant jurisdiction
to the Agents, taken as a whole, in each relevant jurisdiction and one outside
counsel to the Collateral Agent) incurred by or asserted against any Indemnitee
arising out of, relating to, or as a result of (i) the execution or
delivery of this Agreement or any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the performance by the parties
hereto and thereto of their respective obligations thereunder or the
consummation of the Transactions and the other transactions contemplated
hereby, (ii) the use of the


 


88

















 


proceeds of the Loans or (iii) any
claim, litigation, investigation or proceeding relating to any of the
foregoing, whether or not any Indemnitee is a party thereto, provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or costs or related expenses (x) are
determined by a judgment of a court of competent jurisdiction to have resulted
by reason of the gross negligence, bad faith or willful misconduct of, or
breach by, such Indemnitee (or its Related Parties), (y) arise out of any
claim, litigation, investigation or proceeding brought by such Indemnitee (or
its Related Parties) against another Indemnitee (or its Related Parties) (other
than any claim, litigation, investigation or proceeding brought by or against
the Administrative Agent, acting in its capacity as Administrative Agent) that
does not involve any act or omission of the Borrower or any of its Affiliates
and arises out of disputes among the Lenders and/or their transferees.  Subject to and without limiting the
generality of the foregoing sentence, the Borrower agrees to indemnify each
Indemnitee against, and hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities and reasonable out-of-pocket documented costs and
reasonable out-of-pocket costs and related expenses, including reasonable
counsel or consultant fees, charges and disbursements (limited to one counsel
plus, if necessary, one local counsel in each relevant jurisdiction), incurred
by or asserted against any Indemnitee arising out of, in any way connected
with, or as a result of (A) any claim related in any way to Environmental
Laws and Holdings, the Borrower or any of their Subsidiaries, or (B) any
actual or alleged presence, Release or threatened Release of Hazardous
Materials at, under, on or from any Property, provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or costs or related expenses are
determined by a court of competent jurisdiction by judgment to have resulted
from the gross negligence, bad faith or willful misconduct of, or breach by,
such Indemnitee or any of its Related Parties. 
The Borrower shall not be liable for any settlement of any proceeding
referred to in this Section 9.05 effected without the Borrower’s
written consent (such consent not to be unreasonably withheld or delayed); provided, however,
that the Borrower shall indemnify the Indemnitees from and against any loss or
liability by reason of such settlement if the Borrower was offered the right to
assume the defense of such proceeding and did not assume such defense or such
proceeding was settled with the written consent of the Borrower, subject to, in
each case, the Borrower’s right in this Section 9.05 to claim an
exemption from such indemnity obligations. 
The Borrower shall indemnify the Indemnitees from and against any final
judgment for the plaintiff in any proceeding referred to in this Section 9.05,
subject to the Borrower’s right in this Section 9.05 to claim an
exemption from such indemnity obligations. 
The Borrower shall not, without the prior written consent of any
Indemnitee, effect any settlement of any pending or threatened proceeding in
respect of which such Indemnitee is a party and indemnity could have been
sought hereunder by such Indemnitee unless such settlement (i) includes an
unconditional release of such Indemnitee from all liability or claims that are
the subject matter of such proceeding and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any Indemnitee.  To the
extent permitted by applicable law, each party hereto hereby waives for itself
(and, in the case of the Borrower, for each other Loan Party) any claim against
any Loan Party, any Lender, any Agent and their respective affiliates,
directors, employees, attorneys, agents or sub-agents, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) (whether or not the claim therefor is based on
contract, tort or duty imposed by any applicable legal requirement) arising out
of, in connection with, as a result of, or in any way related to, this
Agreement or any Loan Document or any agreement or instrument contemplated
hereby or thereby or referred to herein or therein, the transactions
contemplated hereby or thereby, any Loan or the use of the proceeds thereof or
any act or omission or event occurring in connection therewith, and each party
hereto (and in the case of the Borrower on behalf of each other Loan Party)
hereby waive, release and agree not to sue upon any such claim or any such
damages, whether or not accrued and whether or not known or suspected to exist
in its favor.  The provisions of this Section 9.05
shall remain operative and in full force and effect regardless of the
expiration of the term of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Obligations, the termination
of the Commitments, the invalidity or unenforceability of any term or provision
of this Agreement or any other Loan Document, or any investigation made by or
on behalf of


 


89

















 


the Agents or any
Lender.  All amounts due under this Section 9.05
shall be payable on written demand therefor accompanied by reasonable
documentation with respect to any reimbursement, indemnification or other
amount requested.


 


(c)  Except
as expressly provided in Section 9.05(a) with respect to Other
Taxes, which shall not be duplicative with any amounts paid pursuant to Section 2.17,
this Section 9.05 shall not apply to Taxes.


 


SECTION 9.06.              Right
of Set-off.  If an Event of Default
shall have occurred and be continuing, each Lender is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such
Lender to or for the credit or the account of Holdings, the Borrower or any
Subsidiary Loan Party against any of and all the obligations of Holdings or the
Borrower now or hereafter existing under this Agreement or any other Loan
Document held by such Lender, irrespective of whether or not such Lender shall
have made any demand under this Agreement or such other Loan Document and
although the obligations may be unmatured. 
The rights of each Lender under this Section 9.06 are in
addition to other rights and remedies (including other rights of set-off) that
such Lender may have.


 


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


 


SECTION 9.08.              Waivers;
Amendment.  (a)  No failure
or delay of the Administrative Agent or any Lender in exercising any right or
power hereunder or under any Loan Document shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power.  The rights and remedies
of the Administrative Agent and the Lenders hereunder and under the other Loan
Documents are cumulative and are not exclusive of any rights or remedies that
they would otherwise have.  No waiver of
any provision of this Agreement or any other Loan Document or consent to any
departure by Holdings, the Borrower or any other Loan Party therefrom shall in
any event be effective unless the same shall be permitted by paragraph (b) below,
and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. 
No notice or demand on Holdings, the Borrower or any other Loan Party in
any case shall entitle such person to any other or further notice or demand in
similar or other circumstances.


 


(b)  Except
as provided in Section 2.21 with respect to an Incremental Facility
Amendment, neither this Agreement nor any other Loan Document nor any provision
hereof or thereof may be waived, amended or modified except (x) in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by Holdings, the Borrower, the Administrative Agent and the
Required Lenders and (y) in the case of any other Loan Document, pursuant
to an agreement or agreements in writing entered into by each party thereto and
the Administrative Agent and consented to by the Required Lenders; provided, however,
that no such agreement shall


 


(i)  decrease or
forgive the principal amount of, or extend the final maturity of, or decrease
the rate of interest on, any Loan, without the prior written consent of each
Lender directly and adversely affected thereby; provided, that any
amendment to the Total Leverage Ratio or the component definitions in this
Agreement shall not constitute a reduction in the rate of interest for purposes
of this clause (i),


 


90

















 


(ii)  decrease the
amount of any fees of or premium payable to any Lender without the prior
written consent of such Lender,


 


(iii)  extend or
waive any date on which payment of interest on any Loan or any premium or any
Fees is due, without the prior written consent of each Lender directly and
adversely affected thereby,


 


(iv)  amend or
modify the provisions of Section 2.18(b) or (c) or
2.10(d) of this Agreement or Section 6.5 of the
Collateral Agreement in a manner that would by its terms alter the pro rata
sharing of payments required thereby, without the prior written consent of each
Lender directly and adversely affected thereby,


 


(v)  amend or
modify the provisions of this Section 9.08, Section 9.04(a)(i) or
the definition of the term “Required Lenders”, without the prior written
consent of each Lender directly and adversely affected thereby (it being
understood that, with the consent of the Required Lenders, additional
extensions of credit pursuant to this Agreement may be included in the
determination of the Required Lenders on substantially the same basis as the
Loans and Commitments are included on the Closing Date), or


 


(vi)  release all
or substantially all the Collateral or release all or substantially all of the
value of the Guarantees under the Collateral Agreement, unless, in the case of
a Subsidiary Loan Party, all or substantially all the Equity Interests of such
Subsidiary Loan Party is sold or otherwise disposed of in a transaction
permitted by this Agreement, without the prior written consent of each Lender,


 


provided, further,
that no such agreement shall amend, modify or otherwise affect the rights or duties
of the Administrative Agent or Collateral Agent hereunder without the prior
written consent of the Administrative Agent or Collateral Agent, as applicable;
provided, however, if an Affiliate of Holdings or any Permitted Investor
shall be a Lender, the Loans held by such person shall be deemed to have been
voted in the same manner as the Required Lenders (assuming for this purpose
that the Loans held by such person were not outstanding other than in respect
of Section 9.04(a)(ii), and clauses (i), (ii), (iii) or (iv) of
the first proviso to this Section 9.08(b)).  Each Lender shall be bound by any waiver,
amendment or modification authorized by this Section 9.08 and any
consent by any Lender pursuant to this Section 9.08 shall bind any
assignee of such Lender.


 


(c)  Without
the consent of the Syndication Agent, the Documentation Agent or any Joint Lead
Arranger or Lender, the Loan Parties and the Agents may (in their respective
sole discretion, or shall, to the extent required by any Loan Document) enter
into any amendment, modification or waiver of any Loan Document, or enter into
any new agreement or instrument, to effect the granting, perfection,
protection, expansion or enhancement of any security interest in any Collateral
or additional property to become Collateral for the benefit of the Secured
Parties, or as required by local law to give effect to, or protect any security
interest for the benefit of the Secured Parties, in any property or so that the
security interests therein comply with applicable law.


 


(d)  Notwithstanding
the foregoing, this Agreement may be amended (or amended and restated) with the
written consent of the Required Lenders, the Administrative Agent and the
Borrower (a) to add one or more additional credit facilities to this Agreement
and to permit the extensions of credit from time to time outstanding thereunder
and the accrued interest and fees in respect thereof to share ratably in the
benefits of this Agreement and the other Loan Documents with the Term Loans and
the accrued interest and fees in respect thereof and (b) to include
appropriately the Lenders holding such credit facilities in any determination
of the Required Lenders.


 


91

















 


SECTION 9.09.              Interest
Rate Limitation.  Notwithstanding
anything herein to the contrary, if at any time the applicable interest rate on
any Loan, together with all fees and charges that are treated as interest under
applicable law (collectively, the “Charges”), as provided for herein or
in any other document executed in connection herewith, or otherwise contracted
for, charged, received, taken or reserved by any Lender, shall exceed the
maximum lawful rate (the “Maximum Rate”) that may be contracted for,
charged, taken, received or reserved by such Lender in accordance with
applicable law, the rate of interest payable hereunder, together with all
Charges payable to such Lender, shall be limited to the Maximum Rate, provided
that such excess amount shall be paid to such Lender on subsequent payment dates
to the extent not exceeding the legal limitation.


 


SECTION 9.10.              Entire
Agreement.  This Agreement, the other
Loan Documents and the agreements regarding certain Fees referred to herein
constitute the entire contract between the parties relative to the subject
matter hereof.  Any previous agreement
among or representations from the parties or their Affiliates with respect to
the subject matter hereof is superseded by this Agreement and the other Loan
Documents.  Notwithstanding the
foregoing, the Fee Letter shall survive the execution and delivery of this
Agreement and remain in full force and effect. 
Nothing in this Agreement or in the other Loan Documents, expressed or
implied, is intended to confer upon any party other than the parties hereto and
thereto, and their respective successors and assigns permitted hereunder, any
rights, remedies, obligations or liabilities under or by reason of this
Agreement or the other Loan Documents.


 


SECTION 9.11.              WAIVER
OF JURY TRIAL.  EACH 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 HEREUNDER OR UNDER ANY OF THE
OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT
MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER 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 ITS 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 9.11 AND EXECUTED BY EACH OF
THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER LOAN
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.


 


SECTION 9.12.              Severability.  In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby.  The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid


 


92

















 


provisions
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.


 


SECTION 9.13.              Counterparts.  This Agreement may be executed in two or more
counterparts, each of which shall constitute an original but all of which, when
taken together, shall constitute but one contract, and shall become effective
as provided in Section 9.03. 
Delivery of an executed counterpart to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed original.


 


SECTION 9.14.              Headings.  Article and Section headings and
the Table of Contents used herein are for convenience of reference only, are
not part of this Agreement and are not to affect the construction of, or to be
taken into consideration in interpreting, this Agreement.


 


SECTION 9.15.              Jurisdiction;
Consent to Service of Process.  (a)  Each
of the parties hereto hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or federal court of the United States of America sitting in New York
City, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State
or, to the extent permitted by law, in such federal court.  Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.  Nothing in this
Agreement shall affect any right that any Lender, the Administrative Agent may
otherwise have to bring any action or proceeding relating to this Agreement,
the other Loan Documents against Holdings, the Borrower or any Loan Party or
their properties in the courts of any jurisdiction.


 


(b)  Each
of the parties hereto hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the other Loan Documents in any
New York State or federal court.  Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court.


 


(c)  Each
of the parties hereto agrees that service of all process in any such
proceeding  in any such court may be made
by registered or certified mail, return receipt requested at its address
provided in Section 9.01 agrees that service as so provided in is
sufficient to confer personal jurisdiction over the applicable credit party in
any such proceeding in any such court, and otherwise constitutes effective and
binding service in every respect; and agrees that agents and 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.


 


SECTION 9.16.              Confidentiality.  Each of the Lenders and each of the Agents
agrees that it shall maintain in confidence any information relating to
Holdings, the Borrower and the other Loan Parties furnished to it by or on
behalf of Holdings, the Borrower or the other Loan Parties (other than
information that (a) has become generally available to the public other
than as a result of a disclosure by such party, (b) has been independently
developed by such Lender or such Agent without violating this Section 9.16
or (c) was available to such Lender or such Agent from a third party
having, to such person’s knowledge, no obligations of confidentiality to
Holdings, the Borrower or any other Loan Party) and shall not reveal the same
other than to its directors, trustees, officers, employees and advisors with a
need to know or to any person that approves or administers the Loans on behalf of
such Lender (so long as each


 


93

















 


such
person shall have been instructed to keep the same confidential in accordance
with this Section 9.16), except: 
(A) to the extent necessary to comply with law or any legal process
or the requirements of any Governmental Authority, self-regulatory authorities
(including the National Association of Insurance Commissioners) or of any
securities exchange on which securities of the disclosing party or any
affiliate of the disclosing party are listed or traded (in which case we will
promptly notify you, in advance, to the extent permitted by applicable law or
the rules governing the process requiring such disclosure) (B) as
part of the reporting or review procedures to, or examinations by, Governmental
Authorities or self-regulatory authorities, including the National Association
of Insurance Commissioners or the National Association of Securities Dealers, Inc.,
(C) to its parent companies, affiliates, auditors, assignees, transferees
and participants (so long as each such person shall have been instructed to
keep the same confidential in accordance provisions not less restrictive than
this Section 9.16), (D) in order to enforce its rights under
any Loan Document in a legal proceeding, (E) to any pledgee under Section 9.04(d) or
any other prospective assignee of, or prospective Participant in, any of its
rights under this Agreement (so long as such person shall have been instructed
to keep the same confidential in accordance with this Section 9.16
or other provisions at least as restrictive as this Section 9.16), (F) to
any direct or indirect contractual counterparty in Swap Agreements or such
contractual counterparty’s professional advisor (so long as such contractual
counterparty or professional advisor to such contractual counterparty agrees to
be bound by the provisions of this Section 9.16), (G) disclosure
to any rating agency when required by it (so long as such person shall have
been instructed to keep the same confidential in accordance with this Section 9.16)
and (H) with the consent of the Borrower. 
In addition, each Agent and each Lender may disclose the existence of
this Agreement and the information about this Agreement to market data
collectors, similar services providers to the lending industry, and service
providers to the Agents and the Lenders in connection with the administration
and management of this Agreement and the other Loan Documents.


 


SECTION 9.17.              Release
of Liens and Guarantees.  In the
event that any Loan Party conveys, sells, leases, assigns, transfers or
otherwise disposes of any assets or all or any portion of any of the Equity
Interests or assets of any Subsidiary Loan Party to a person that is not (and
is not required to become) a Loan Party in each case in a transaction not
prohibited by Section 6.05 or in connection with a Subsidiary
Redesignation or in connection with a pledge of the Equity Interests of joint
ventures permitted by Section 6.02, the Administrative Agent and the
Collateral Agent shall promptly (and the Lenders hereby authorize the
Administrative Agent and the Collateral Agent to) take such action and execute
any such documents as may be reasonably requested by Holdings or the Borrower
and at the Borrower’s expense to release any Liens created by any Loan Document
in respect of such Equity Interests or assets, and, in the case of a
disposition of the Equity Interests of any Subsidiary Loan Party in a
transaction permitted by Section 6.05 or in connection with a
Subsidiary Redesignation and as a result of which such Subsidiary Loan Party
would cease to be a Subsidiary, terminate such Subsidiary Loan Party’s
obligations under its Guarantee.  Any
representation, warranty or covenant contained in any Loan Document relating to
any such Equity Interests, asset or subsidiary of Holdings shall no longer be
deemed to be made once such Equity Interests or asset is so conveyed, sold,
leased, assigned, transferred or disposed of.


 


SECTION 9.18.              USA
PATRIOT Act.  Each Lender hereby
notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act,
it is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and
other information that will allow such Lender to identify the Borrower in
accordance with the USA PATRIOT Act.


 


SECTION 9.19.              Marshalling;
Payments Set Aside.  Neither any Agent nor any Lender shall be
under any obligation to marshal any assets in favor of any Loan Party or any
other person or against or in payment of any or all of the Obligations.  To the extent that any Loan Party makes a


 


94

















 


payment
or payments to Administrative Agent or Lenders (or to Administrative Agent, on
behalf of Lenders), or any 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.


 


SECTION 9.20.              Obligations
Several; Independent Nature of Lenders’ Rights.  The obligations of
Lenders hereunder are several and no Lender shall be responsible for the
obligations or Commitment of any other Lender hereunder.  Nothing contained herein or in any other Loan
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 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.


 


SECTION 9.21.              Electronic
Execution of Assignments.   The words “execution,” “signed,” “signature,”
and words of like import in any Assignment Agreement shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of
which shall be of the same legal effect, validity or enforceability as a manually
executed signature or the use of a paper-based recordkeeping system, as the
case may be, to the extent and as provided for in any applicable law, including
the Federal Electronic Signatures in Global and National Commerce Act, the New
York State Electronic Signatures and Records Act, or any other similar state
laws based on the Uniform Electronic Transactions Act.


 


[Signature Pages Follow]


 


95














 


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


 


	
   

  	
  GENERAC
  ACQUISITION CORP.

  
	
   

  	
   

  
	
   

  	
   

  	
  By

  
	
   

  	
   

  	
   

  	
  /s/ Aaron P. Jagdfeld

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Aaron
  P. Jagdfeld

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Chief
  Financial Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  GPS
  CCMP MERGER CORP.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  	
  /s/ Aaron P. Jagdfeld

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Aaron
  P. Jagdfeld

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Chief
  Financial Officer

  



 


96

















 


	
   

  	
  JPMORGAN CHASE BANK, N.A., Individually
  and as Administrative Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by:

  	
  /s/
  Kathryn A. Duncan

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Kathryn
  A. Duncan

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Managing Director

  



 


 


97

















 


	
   

  	
  GOLDMAN SACHS., Individually and as Syndication
  Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
  Illegible

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  



 


98

















 


	
   

  	
  WILMINGTON TRUST COMPANY, as Collateral
  Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by:

  	
  /s/
  James A. Hanley 

  
	
   

  	
   

  	
   

  	
  Name:

  	
  James
  A. Hanley

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Assistant
  Vice President 

  



 


99














 


Exhibit A


to the Second Lien Credit Agreement


 


GPS CCMP MERGER CORP.


 


ASSIGNMENT AND ACCEPTANCE AGREEMENT


 


This
Assignment and Acceptance Agreement (the “Assignment”) is dated as of
the Effective Date set forth below and is entered into by and between [Insert name of Assignor]  (the “Assignor”) and [Insert name of Assignee]  (the “Assignee”).
Capitalized terms used but not defined herein shall have the meanings given to
them in the Credit Agreement identified below (as it may be amended, restated,
amended and restated, supplemented or otherwise modified from time to time, the
“Credit Agreement”), receipt of a copy of which is hereby acknowledged
by the Assignee. The Standard Terms and Conditions set forth in Annex 1
attached hereto are hereby agreed to and incorporated herein by reference and
made a part of this Assignment as if set forth herein in full.


 


For
an agreed consideration, the Assignor hereby irrevocably sells and assigns to
the Assignee, and the Assignee hereby irrevocably purchases and assumes from
the Assignor, subject to and in accordance with the Standard Terms and
Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below, the interest in and to all of the
Assignor’s rights and obligations under the Credit Agreement and any other
documents or instruments delivered pursuant thereto that represents the amount
and percentage interest identified below of all of the Assignor’s outstanding
rights and obligations under the respective facilities identified below
(including, to the extent included in any such facilities, letters of credit
and swingline loans) (the “Assigned Interest”). Such sale and assignment
is without recourse to the Assignor and, except as expressly provided in this
Assignment and the Credit Agreement, without representation or warranty by the
Assignor.


 


	
  1.

  	
  Assignor:

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  Assignee:

  	
                                               [and
  is an

  
	
   

  	
   

  	
  Affiliate/Approved
  Fund [Identify
  Lender]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Borrower:

  	
  GPS
  CCMP MERGER CORP.

  
	
   

  	
   

  	
   

  
	
  4.

  	
  Administrative
  Agent:

  	
  JPMORGAN
  CHASE BANK, N.A., as the administrative agent under the Credit Agreement

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Credit
  Agreement:

  	
  The
  Credit Agreement dated as of November 10, 2006 (the “Credit Agreement”),
  among the Borrower, GENERAC ACQUISITION CORP., a Delaware corporation (“Holdings”),
  the LENDERS party thereto from time to time, JPMORGAN CHASE BANK, N.A., as
  administrative agent (in

  



 


A-1

















 


	
   

  	
   

  	
  such
  capacity, together with its successors and assigns, the “Administrative
  Agent”), the other agents named therein and GOLDMAN SACHS
  CREDIT PARTNERS L.P. and J.P. MORGAN SECURITIES INC., as joint lead arrangers
  and joint bookrunners.

  
	
   

  	
   

  	
   

  
	
  6.

  	
  Assigned
  Interest:

  	
   

  



 


	
  Facility Assigned

  	
   

  	
  Aggregate Amount of

  Loans

  for all Lenders

  	
   

  	
  Amount of Loans

  Assigned

  	
   

  	
  Percentage Assigned 

  of Loans(1)

  	
   

  
	
  Term

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  
										



 


Effective Date:                           ,
20      [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH
SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]


 


	
  7.

  	
  Notice
  and Wire Instructions:

  	
   

  



 


 


	
  [NAME
  OF ASSIGNOR]

  	
  [NAME
  OF ASSIGNEE]

  
	
   

  	
   

  
	
  Notices:

  	
  Notices:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  	
  Attention:

  
	
   

  	
  Telecopier:

  	
   

  	
  Telecopier:

  
	
   

  	
   

  
	
  with
  a copy to:

  	
  with
  a copy to:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  	
  Attention:

  
	
   

  	
  Telecopier:

  	
   

  	
  Telecopier:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Wire
  Instructions:

  	
  Wire
  Instructions:

  



 






(1) Set forth, to at
least 9 decimals, as a percentage of the Commitment/Loans of all Lenders
thereunder.


 


A-2

















 


The
terms set forth in this Assignment are hereby agreed to:


 


 


	
   

  	
  ASSIGNOR

  
	
   

  	
  [NAME
  OF ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE

  
	
   

  	
  [NAME
  OF ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


	
  [Consented
  to and](2) Accepted:

  	
   

  
	
   

  	
   

  
	
  [JPMORGAN
  CHASE BANK, N.A., as

  	
   

  
	
    Administrative Agent

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
    Title:]

  	
   

  
	
   

  	
   

  
	
  [Consented
  to:(3)

  	
   

  
	
   

  	
   

  
	
  [GPS
  CCMP MERGER CORP.

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
    Title:]

  	
   

  
				



 






(2) To be added only
if the consent of the Administrative Agent is required by the terms of the
Credit Agreement. 


 


(3) To
be added only if the consent of the Borrower is required by the terms of the
Credit Agreement.


 


A-3

















 


ANNEX
1


 


STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT

AND ACCEPTANCE AGREEMENT


 


1.       Representations and
Warranties.


 


1.1   Assignor.   The Assignor (a) represents and warrants
that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the
Assigned Interest is free and clear of any lien, encumbrance or other adverse
claim and (iii) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with
respect to (i) any statements, warranties or representations made in or in
connection with any Credit Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value, of the Credit
Agreement or any other instrument or document delivered pursuant thereto, other
than this Assignment (herein collectively the “Credit Documents”), or
any collateral thereunder, (iii) the financial condition of the Borrower,
any of its Subsidiaries or Affiliates or any other Person obligated in respect
of any Credit Document or (iv) the performance or observance by the Borrower,
any of its Subsidiaries or Affiliates or any other Person of any of their
respective obligations under any Credit Document.


 


1.2   Assignee.   The Assignee (a) represents and warrants
that (i) it has full power and authority, and has taken all action necessary,
to execute and deliver this Assignment and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
meets all requirements of an Assignee under the Credit Agreement (subject to
receipt of such consents as may be required under the Credit Agreement), (iii) from
and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Assigned Interest,
shall have the obligations of a Lender thereunder, (iv) it has received a
copy of the Credit Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 5.04 thereof, as applicable, and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment and to purchase
the Assigned Interest on the basis of which it has made such analysis and
decision independently and without reliance on the Administrative Agent or any
other Lender and (v) if it is a Foreign Lender, attached to the Assignment
is any documentation required to be delivered by it pursuant to the terms of
the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees
that (i) it will, independently and without reliance on the Administrative
Agent, the Assignor or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit


 


A-4

















 


decisions
in taking or not taking action under the Credit Documents, and (ii) it
will perform in accordance with their terms all of the obligations which by the
terms of the Credit Documents are required to be performed by it as a Lender.


 


2.       Payments.    All payments with respect to
the Assigned Interests shall be made on the Effective Date as follows:


 


2.1   From and after the Effective
Date, the Administrative Agent shall make all payments in respect of the
Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignor for amounts which have accrued to but excluding the
Effective Date and to the Assignee for amounts which have accrued from and
after the Effective Date.


 


3.       General Provisions.   This Assignment shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and
permitted assigns. This Assignment may be executed in any number of
counterparts, which together shall constitute one instrument. Delivery of an
executed counterpart of a signature page of this Assignment by telecopy
shall be effective as delivery of a manually executed counterpart of this
Assignment. This Assignment shall be governed by, and construed in accordance
with, the internal laws of the State of New York without regard to conflict of
laws principles thereof.


 


A-5

















 


Exhibit B


to
the Second Lien Credit Agreement


 


FORM OF
ADMINISTRATIVE QUESTIONNAIRE


 


I.  Borrower
Name:


 


II.  Legal
Name of Lender for Signature Page:


 


III. Name
of Lender for any eventual tombstone:


 


 


IV. Legal
Address:


 


 


V.  Contact
Information:


 


	
   

  	
   

  	
  Credit Contact

  	
   

  	
  Operations Contact

  	
   

  	
  Legal Counsel

  
	
  Name:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Email:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


VI. Lender’s Wire Payment Instructions: 


 


	
  Pay
  to:

  	
   

  	
   

  	
   

  
	
   

  	
    (Name
  of Lender)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
    (ABA#)

  	
   

  	
  (City/State)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
    (Account
  #)

  	
   

  	
  (Account
  Name)

  



 


Please return this form, by fax, to the attention of [                       ],
fax [      ], no later than 5:00 p.m. New
York City time, on [            ],
2006.


 


B-1

















 


Borrower Name:


 


VII.  Organizational
Structure:


 


Foreign
Branch, organized under which laws


 


Lender’s
Tax ID:


 


Tax
withholding Form Attached (For Foreign Buyers)


 


[       ] Form W-9


[       ] Form W-8


[       ]  Form 4224 effective:


[       ] Form 1001


[       ]
W/Hold
              %
Effective


[       ]
Form 4224 on file with Administrative Agent from previous current year’s
transaction


 


VIII.  Payment Instructions:


 


Servicing
Site:


 


 


Pay
To:


 


 


	
  IX.  Name of
  Authorized Officer:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Signature:

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  



 


B-2

















 


X. Institutional Investor Sub-Allocations 


 


	
  Institution
  Legal

  	
   

  	
   

  
	
  Fund
  Manager:

  	
   

  	
   

  



 


Sub-Allocations:


 


	
  Exact
  Legal

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name

  	
   

  	
  Sub-

  	
   

  	
  Direct Signer to

  	
   

  	
   

  	
   

  	
   

  
	
  (for

  	
   

  	
  Allocation

  	
   

  	
  Credit

  	
   

  	
  Purchase by

  	
   

  	
  Date of Post

  
	
  documentation

  	
   

  	
  (Indicate

  	
   

  	
  Agreement

  	
   

  	
  Assignment

  	
   

  	
  Closing

  
	
  purposes)

  	
   

  	
  US$)

  	
   

  	
  (Yes / No)

  	
   

  	
  (Yes / No)

  	
   

  	
  Assignment

  
	
  1.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Special
Instructions


 


 


B-3














 


Exhibit C


to
the Second Lien Credit Agreement


 


GPS CCMP MERGER CORP.


 


FORM OF BORROWING REQUEST


 


JPMorgan Chase Bank, N.A.,


as Administrative Agent for the Lenders
referred to below,


1111 Fannin 10th Floor,


Houston, TX 77002


Attention: Katie Rose


 


	
   

  	
  November 10, 2006

  



 


Ladies and Gentlemen:


 


The undersigned, GPS CCMP
MERGER CORP., a Wisconsin Corporation (the “Borrower”), refers to the
Credit Agreement dated as of November 10, 2006 (as the same may be
amended, restated, amended and restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”), among the
Borrower, GENERAC ACQUISITION CORP., a Delaware corporation (“Holdings”), the LENDERS
party thereto from time to time, JPMORGAN CHASE BANK, N.A., as administrative
agent (in such capacity, together with its successors and assigns, the “Administrative
Agent”), the other agents named therein and GOLDMAN SACHS
CREDIT PARTNERS L.P. and J.P. MORGAN SECURITIES 1NC., as joint lead arrangers
and joint bookrunners. Terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement. The Borrower
hereby gives you notice pursuant to Section 2.03 of the Credit Agreement
that it requests a Borrowing under the Credit Agreement, and in that connection
sets forth below the terms on which such Borrowing is requested to be made:


 


(A)          Date of Borrowing 

(which is a Business Day)                                          November[      ], 2006


 


(B)           Aggregate
Amount of Borrowing


 


(C)           Type of Borrowing(1)


 






(1)  Specify Eurocurrency Borrowing or ABR
Borrowing.


 


C-4

















 


Exhibit
B


to
the Second Lien Credit Agreement


 


 


(D)          Interest Period and the last
day thereof(2)


 


(E)           Funds are requested to be disbursed to the
Borrower’s account
with                     
(Account
No.                                 ).


 


 


[Remainder
of page intentionally left blank]


 






(2)   To be an Interest Period
contemplated by definition of “Interest Period” in the Credit Agreement (with
respect to Eurocurrency Borrowings only).


 


B-5

















 


The Borrower hereby
represents and warrants to the Administrative Agent and the Lenders that, on
the date of this Borrowing Request and on the date of the related Borrowing,
the conditions to lending specified in Section[s] 4.01 and [4.02(3)] of the
Credit Agreement have been satisfied.


 


 


	
   

  	
  GPS CCMP MERGER CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 






(3) [Insert for Borrowing on the Closing Date.]


 


B-6














 


Exhibit D


to the Second Lien Credit Agreement


 


FORM OF INTEREST ELECTION REQUEST


 


Reference
is made to the Credit Agreement dated as of November 10, 2006 (as amended,
restated, amended and restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), among GPS CCMP
MERGER CORP., a Wisconsin corporation (the “Borrower”), GENERAC
ACQUISITION CORP., a Delaware corporation (“Holdings”), the LENDERS
party thereto from time to time, JPMORGAN CHASE BANK, N.A., as administrative
agent (in such capacity, together with its successors and assigns, the “Administrative
Agent”), the other agents named therein and GOLDMAN SACHS
CREDIT PARTNERS L.P. and J.P. MORGAN SECURITIES INC., as joint lead arrangers
and joint bookrunners.


 


Pursuant
to Section 2.07 of the Credit Agreement, the Borrower desires to convert
or to continue the following Loans, each such conversion and/or continuation to
be effective as of   /   /20   :


 


Term Borrowings:


 


	
   

  	
  $[   ,   ,   ]

  	
  Eurocurrency
  Borrowing to be continued with Interest Period of       
  month(s).

  
	
   

  	
   

  	
   

  
	
   

  	
  $[   ,   ,   ]

  	
  ABR
  Borrowing to be converted to a Eurocurrency Borrowing with Interest Period of
       month(s).

  
	
   

  	
   

  	
   

  
	
   

  	
  $[   ,   ,   ]

  	
  Eurocurrency
  Borrowing to be converted to ABR Loans.

  



 


D-1

















 


Borrower
hereby certifies that as of the date hereof, no event has occurred and is
continuing or would result from the consummation of the conversion and/or
continuation contemplated hereby that would constitute an Event of Default.


 


 


	
  Date:   /   /20

  	
  GPS CCMP MERGER CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


D-2

















 


Exhibit E


to the Second Lien Credit Agreement


 


FORM OF COLLATERAL AGREEMENT


 

















 


Exhibit
F


to
the Second Lien Credit Agreement


 


FORM OF SOLVENCY CERTIFICATE

November 10, 2006


 


THE
UNDERSIGNED HEREBY CERTIFIES ON BEHALF OF GPS CCMP MERGER CORP., IN MY CAPACITY
AS AN OFFICER AND NOT INDIVIDUALLY, AS FOLLOWS AS OF THE DATE HEREOF:


 


1.   I am the chief financial
officer of GENERAC ACQUISITION CORP., a Delaware corporation (“Holdings”)
and GPS CCMP MERGER CORP., a Wisconsin corporation (the “Borrower”).


 


2.   Reference is made to the
Credit Agreement dated as of November 10, 2006 (the “Credit Agreement”),
among the Borrower, GENERAC ACQUISITION CORP., a Delaware corporation (“Holdings”),
the LENDERS party thereto from time to time, JPMORGAN CHASE BANK, N.A., as
administrative agent (in such capacity, together with its successors and
assigns, the “Administrative Agent”), the other agents named therein and
GOLDMAN SACHS CREDIT PARTNERS L.P. and J.P. MORGAN SECURITIES INC., as joint
lead arrangers and joint bookrunners.


 


3.   I have reviewed, or caused
to be reviewed under my supervision, the terms of Article III and Article IV
of the Credit Agreement and the definitions and provisions contained in the
Credit Agreement relating thereto.


 


4.   Based upon my review and
examination described in paragraph 3 above, 1 certify that as of the date
hereof, after giving effect to the consummation of the transactions
contemplated by the Merger Agreement, the related financings and the other
transactions contemplated by the other Transaction Documents (i) the fair
value of the assets of Holdings, the Borrower and its Subsidiaries on a
consolidated basis, at a fair valuation, will exceed the debts and liabilities,
direct, subordinated, contingent or otherwise, of Holdings, the Borrower and
its Subsidiaries on a consolidated basis, respectively; (ii) the present
fair saleable value of the property of Holdings, the Borrower and its
Subsidiaries on a consolidated basis will be greater than the amount that will
be required to pay the probable liability of Holdings, the Borrower and its
Subsidiaries on a consolidated basis, respectively, on their debts and other liabilities,
direct, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (iii) Holdings, the Borrower and
its Subsidiaries on a consolidated basis will be able to pay their debts and
liabilities, direct, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (iv) Holdings, the Borrower
and its Subsidiaries on a consolidated basis will not have unreasonably small
capital with which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted
following the Closing Date.


 


F-1

















 


[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]


 


F-1

















 


The
foregoing certifications are made and delivered as of the date first written
above.


 


 


	
   

  	
  GPS
  CCMP MERGER CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:
  Aaron P. Jagdfeld

  
	
   

  	
   

  	
  Title:
  Chief Financial Officer

  



 


F-1

















 


Exhibit G


to the Second Lien Credit Agreement


 


FORM OF SUBORDINATION PROVISIONS


 


Reference
is made to the Credit Agreement dated as of November 10, 2006 (as amended,
restated, amended and restated, supplemented or otherwise modified from time to
time, the “Credit Agreement”), among GPS CCMP MERGER CORP., a Wisconsin
corporation (the “Borrower”), GENERAC ACQUISITION CORP., a Delaware
corporation (“Holdings”), the LENDERS party thereto from time to time, JPMORGAN
CHASE BANK, N.A., as administrative agent (in such capacity, together with its
successors and assigns, the “Administrative Agent”), the other agents
named therein and GOLDMAN SACHS CREDIT PARTNERS L.P. and J.P. MORGAN SECURITIES
INC., as joint lead arrangers and joint bookrunners. Terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement.


 


A.            [Defined terms to be
included]:


 


“Cash
Management Agreement” shall mean any agreement evidencing Cash Management
Obligations entered into by (i) [Holdings], the Borrower or any of its
Subsidiaries and (ii) a Lender Counterparty.


 


“Designated
Senior Debt” means:


 


(1)             any
Indebtedness outstanding under the Loan Documents, Second Lien Loan Documents, Specified
Hedge Agreements or Cash Management Agreements and any permitted Refinancing
Indebtedness in request thereof; and


 


(2)             any other
Senior Debt permitted under the [applicable debt instrument], and that has been
designated by the Borrower as “Designated Senior Debt.”


 


“Obligations”
means: any principal, premium, if any, interest, including interest accruing on
or after the filing of any petition in bankruptcy or for reorganization
relating to the Borrower or its Subsidiaries whether or not a claim for
post-filing interest is allowed in such proceedings, penalties, fees, charges, expenses,
indemnifications, reimbursement obligations, damages, including liquidated
damages, guarantees and other liabilities or amounts payable under the
documentation governing any Indebtedness or in respect thereof; but excluding
contingent indemnification and reimbursement obligations which are not due and
payable.


 


“Permitted
Junior Securities” means:


 


(1)             Equity
Interests in Borrower, Holdings, any Subsidiary Loan Party, or any other
business entity provided for by a plan of reorganization with respect to such
person which has been confirmed by a bankruptcy court of competent jurisdiction;
or


 


(2)             debt securities
of the Borrower, Holdings, any Subsidiary Loan Party, or any other business
entity provided for by a plan of reorganization with respect to such person
which has been confirmed by a bankruptcy court of competent jurisdiction that (i) has
a maturity date at least 180 days later than the maturity date of the [term
facility maturity date] and (ii) are


 


G-1

















 


subordinated,
to substantially the same extent as, or to a greater extent than, the
Subordinated Debt is subordinated to Senior Debt under the these subordination
provisions, to all Senior Debt and any debt securities issued in exchange for
Senior Debt.


 


“Senior
Debt” means:


 


(1)             all
Indebtedness of Borrower, Holdings or any Subsidiary Loan Party outstanding
under any of the Loan Documents, the Specified Hedge Agreements, the Cash
Management Agreements, and the First Lien Loan Documents;


 


(2)             any other
Indebtedness of Borrower, Holdings or any Subsidiary Loan Party permitted to be
incurred under the terms of the [applicable debt instrument], unless the
instrument under which such Indebtedness is incurred expressly provides that it
is on a parity with or subordinated in right of payment to the Subordinated
Debt; and


 


(3)             all Obligations
with respect to the items listed in the preceding clauses (1) and (2) (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Borrower or its Subsidiaries whether or not a
claim for post-filing interest is allowed in such proceedings).


 


Notwithstanding anything to the contrary in the preceding, Senior Debt
will not include:


 


(1)             any liability
for federal, state, local or other taxes owed or owing by Borrower, Holdings or
any Subsidiary or Affiliate thereof;


 


(2)             any trade
payables;


 


(3)             the portion of
any Indebtedness that is incurred in violation of the [applicable debt
instrument]; or


 


(4)             Indebtedness
which is classified as non-recourse in accordance with GAAP or any unsecured
claim arising in respect thereof by reason of the application of section 1111 (b)(1) of
the Bankruptcy Code.


 


“Subordinated
Debt” means: indebtedness incurred under the [applicable debt instrument].


 


B.            Subordination


 


The payment of principal, interest and premium and
liquidated damages, if any, on the Subordinated Debt will be subordinated in
right of payment to the indefeasible prior payment in full of all Senior Debt
of the Borrower, including Senior Debt incurred after the date of the
[applicable debt instrument].


 


The
holders of Senior Debt will be entitled to receive payment in full of all
Obligations due in respect of Senior Debt (including interest after the
commencement of any bankruptcy proceeding at the rate specified in the
applicable Senior Debt whether or not a claim for post petition interest is
allowed in any such proceeding, and any make whole or prepayment premium


 


G-2

















 


regardless
whether or not claims for such amounts are allowed in such proceedings) before
the holders of Subordinated Debt will be entitled to receive any payment with
respect to the Subordinated Debt (except that holders of Subordinated Debt may
receive and retain Permitted Junior Securities or payments received from any
trust established pursuant to [insert defeasance and/or discharge provisions
under applicable debt instrument] if the subordination provisions described in
this section and the terms of the Designated Senior Debt related thereto were
not violated at the time the applicable amounts were deposited in trust or with
the [Trustee][Agent]), in the event of any distribution to creditors of the
Borrower:


 


(1)             in a
liquidation or dissolution of the Borrower or any other Loan Party;


 


(2)             in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Borrower [or any other Loan Party] and [their] respective properties;


 


(3)             in an
assignment for the benefit of creditors; or


 


(4)             in any
marshaling of the assets and liabilities of the Borrower [or any other Loan
Party].


 


The
Borrower also may not make any payment or distribution in respect of the
Subordinated Debt (except in the form of Permitted Junior Securities or
payments, on behalf of the Borrower, from any trust established pursuant to
[insert defeasance and/or discharge provisions under applicable debt
instrument] if the subordination provisions described in this section and the
terms of the Designated Senior Debt related thereto were not violated at the
time the applicable amounts were deposited in trust or with the
[Trustee][Agent]) if:


 


(1)             a default in
the payment of any principal, premium, interest or any other amount payable in
respect of Designated Senior Debt occurs and is continuing beyond any
applicable grace period (including at maturity); or


 


(2)             any other
default occurs and is continuing on any series of Designated Senior Debt that
permits holders of that series of Designated Senior Debt to accelerate its
maturity and the trustee/agent receives a notice of such default (a “Payment
Blockage Notice”) from the Borrower or the holders of any Designated
Senior Debt; provided, however, that the Borrower may make such payments or
distributions in respect of the Subordinated Debt without regard to the
foregoing if the Borrower and the [Trustee][Agent] receive written notice
approving such payment from the representative of such issue of Designated
Senior Debt.


 


Payments
on the Subordinated Debt may and will be resumed:


 


(1)             in the case of
a payment default, upon the date on which such default is cured or waived; and


 


(2)             in the case of
a nonpayment default, upon the earlier of (x) the date on which such
nonpayment default is cured or waived, (y) 179 days after the date on
which the applicable Payment Blockage Notice is received and (z) the date
the [trustee]/[agent] receives notice, from


 


G-3

















 


the
Borrower or the holders of such Designated Senior Debt rescinding the Payment
Blockage Notice, unless, in each case, the maturity of such Designated Senior
Debt has been accelerated.


 


No
new Payment Blockage Notice may be delivered unless and until:


 


(1)             360 days have
elapsed since the delivery of the immediately prior Payment Blockage Notice; and


 


(2)             all scheduled
payments of principal, interest and premium and liquidated damages, if any, on
the Subordinated Debt that have come due have been paid in full in cash.


 


No nonpayment default that existed or was continuing on the date of
delivery of any Payment Blockage Notice to the holders of Subordinated Debt (or
any [trustee]/[agent] acting therefor) will be, or be made, the basis for a
subsequent Payment Blockage Notice.


 


If
any holder of Subordinated Debt (or any [trustee]/[agent] acting therefor) receives
a payment or distribution in respect of the Subordinated Debt (except in
Permitted Junior Securities or payments received from any trust established
pursuant to [insert defeasance and/or discharge provisions under applicable
debt instrument] if the subordination provisions described in this section and
the terms of the Designated Senior Debt related thereto were not violated at
the time the applicable amounts were deposited in trust or with the
[Trustee][Agent]) when the payment is prohibited by these subordination
provisions, then any such holder of Subordinated Debt (or any [trustee]/[agent]
acting therefor), as the case may be, will hold the payment or distribution in
trust for the benefit of the holders of Senior Debt. Upon the proper written
request of the holders of Senior Debt, any such holder of Subordinated Debt (or
[trustee]/[agent] acting therefor), as the case may be, will deliver such
payment or distribution in trust to the holders of Senior Debt or their proper
representative.


 


The
Borrower must promptly notify holders of Senior Debt if payment on the
Subordinated Debt is accelerated because of an Event of Default.


 


G-4














 


Exhibit
H


to
the Second Lien Credit Agreement


 


FORM OF GLOBAL INTERCOMPANY NOTE


 




	
  Note
  Number: 1

  	
   

  	
   

  	
   

  	
  Dated: [    ], 2006

  






 


FOR
VALUE RECEIVED, GPS CCMP MERGER CORP. and each of its Subsidiaries (collectively,
the “Group Members” and each, a “Group
Member”) which is a party to this global intercompany note (this
“Promissory Note”) promises to pay to the order
of such other Group Member as makes loans to such Group Member (each Group
Member which borrows money pursuant to this Promissory Note is referred to herein
as a “Payor” and each Group Member which makes loans and
advances pursuant to this Promissory Note is referred to herein as a “Payee”),
on demand, in lawful money of the United States of America, in
immediately available funds and at the appropriate office of the Payee, the
aggregate unpaid principal amount of all loans and advances heretofore and
hereafter made by such Payee to such Payor and any other indebtedness now or
hereafter owing by such Payor to such Payee as shown either on Schedule A
attached hereto (and any continuation thereof) or in the books and records of
such Payee. The failure to show any such Indebtedness or any error in showing
such Indebtedness shall not affect the obligations of any Payor hereunder. Capitalized
terms used herein but not otherwise defined herein shall have the meanings
given such terms in the Credit Agreement dated as of November 10, 2006 (as
amended, restated, amended and restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”), among GPS CCMP
MERGER CORP., a Wisconsin corporation (the “Borrower”), GENERAC
ACQUISITION CORP., a Delaware corporation (“Holdings”), the LENDERS
party thereto from time to time, JPMORGAN CHASE BANK, N.A., as
administrative agent (in such capacity, together with its successors and
assigns, the “Administrative Agent”), the other
agents named therein and GOLDMAN SACHS CREDIT PARTNERS L.P. and J.P. MORGAN
SECURITIES INC., as joint lead arrangers and joint bookrunners.


 


The
unpaid principal amount hereof from time to time outstanding shall bear
interest at a rate equal to the rate as may be agreed upon in writing from time
to time by the relevant Payor and Payee. Upon demand for payment of any
principal amount hereof, accrued but unpaid interest on such principal amount
shall also be due and payable. Interest shall be paid in lawful money of the
United States of America and in immediately available funds. Interest shall be
computed for the actual number of days elapsed on the basis of a year
consisting of 365 days.


 


Each
Payor and any endorser of this Promissory Note hereby waives presentment, demand,
protest and notice of any kind. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof shall operate
as a waiver of such rights.


 


This
Promissory Note has been pledged by each Payee who is a grantor under the
Security Documents to the Administrative Agent, for the benefit of the Secured
Parties, as security for such Payee’s Secured Obligations, if any, under the
Credit Agreement, the Collateral Agreement and the other Loan Documents to
which such Payee is a party. Each Payor acknowledges and agrees that the
Administrative Agent and the other Secured Parties may exercise all the rights
of such Payees under this Promissory Note and will not be subject to any
abatement, reduction, recoupment, defense, setoff or counterclaim available to
such Payor.


 


H-1

















 


Each
Payee which is not a grantor under the Security Documents (a “Subordinated
Payee”) agrees that any and all claims of such Subordinated
Payee against any Payor or any endorser of this Promissory Note, or against any
of their respective properties, shall be subordinate and subject in right of
payment to the Obligations until all of the Obligations have been performed and
paid in full in immediately available funds, no Letters of Credit are
outstanding and the Commitments have been terminated; provided, that each Payor
may make payments to the applicable Subordinated Payee so long as no Event of
Default shall have occurred and be continuing. Notwithstanding any right of any
Subordinated Payee to ask, demand, sue for, take or receive any payment from
any Payor, all rights, Liens and security interests of such Subordinated Payee,
whether now or hereafter arising and howsoever existing, in any assets of any
Payor (whether constituting part of the security or collateral given to the
Administrative Agent or any Secured Party to secure payment of all or any part
of the Obligations or otherwise) shall be and hereby are subordinated to the
rights of the Administrative Agent or any Secured Party in such assets until
the payment in full of the Obligations (other than obligations for taxes, costs,
indemnifications, reimbursement, damages and other contingent liabilities in
respect of which no claim or demand for payment has been made or, in the case
of indemnifications, no notice has been given (or reasonably satisfactory
arrangements have otherwise been made)). Except as permitted by the Credit
Agreement, if an Event of Default has occurred and is continuing, the
Subordinated Payees shall have no right to possession of any such asset or to
foreclose upon, or exercise any other remedy in respect of, any such asset, whether
by judicial action or otherwise, unless and until all of the Obligations shall
have been performed and paid in full in immediately available funds (other than
obligations for taxes, costs, indemnifications, reimbursement, damages and
other contingent liabilities in respect of which no claim or demand for payment
has been made or, in the case of indemnifications, no notice has been given (or
reasonably satisfactory arrangements have otherwise been made)), no Letters of
Credit are outstanding and the Commitments under the Credit Agreement have been
terminated.


 


If
an Event of Default shall have occurred and be continuing, except as otherwise
permitted under the Credit Agreement, should any payment, distribution, security
or other investment property or instrument or any proceeds thereof be received
by any Subordinated Payee upon or with respect to Payor Indebtedness owing to
such Subordinated Payee prior to such time as the Obligations have been
performed and paid in full in immediately available funds (other than
obligations for taxes, costs, indemnifications, reimbursement, damages and
other contingent liabilities in respect of which no claim or demand for payment
has been made or, in the case of indemnifications, no notice has been given (or
reasonably satisfactory arrangements have otherwise been made)), no Letters of
Credit are outstanding and the Commitments have been terminated, such
Subordinated Payee shall receive and hold the same in trust, as trustee, for
the benefit of the Administrative Agent and the Secured Parties, and shall
forthwith deliver the same to the Administrative Agent, for the benefit of the
Secured Parties, in precisely the form received (except for the endorsement or
assignment of such Subordinated Payee where necessary or advisable in the
Administrative Agent’s judgment), for application to any of the Obligations, due
or not due, and, until so delivered, the same shall be segregated from the
other assets of such Subordinated Payee and held in trust by such Subordinated
Payee as the property of the Administrative Agent, for the benefit of the
Secured Parties. If such Subordinated Payee fails to make any such endorsement
or assignment to the Administrative Agent, the Administrative


 


H-2

















 


Agent
or any of its officers, employees or representatives are hereby irrevocably
authorized to make the same.


 


Each
Payee agrees that until the Obligations have been performed and paid in full in
immediately available funds, no Letters of Credit are outstanding and the
Commitments have been terminated, such. Subordinated Payee will not otherwise
amend, modify, supplement, waive or fail to enforce any provision of this
Promissory Note.


 


Notwithstanding anything to the contrary contained herein, in
any other Loan Document or in any such promissory note or other instrument, this
Promissory Note (i) replaces and supersedes any and all promissory notes
or other instruments which create or evidence any loans or advances made on or
before the date hereof by any Group Member to any other Group Member, and (ii) shall
not be deemed replaced, superseded or in any way modified by any promissory
note or other instrument entered into on or after the date hereof which
purports to create or evidence any loan or advance by any Group Member to any other
Group Member.


 


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


 


From
time to time after the date hereof, additional Subsidiaries of the Group
Members may become parties hereto by executing a counterpart signature page to
this Promissory Note (each additional Subsidiary, an
“Additional Payor”). Upon delivery of such
counterpart signature page to the Payees, notice of which is hereby waived
by the other Payors, each Additional Payor shall be a Payor and shall be as
fully a party hereto as if such Additional Payor were an original signatory
hereof. Each Payor expressly agrees that its obligations arising hereunder
shall not be affected or diminished by the addition or release of any other
Payor hereunder. This Promissory Note shall be fully effective as to any Payor
that is or becomes a party hereto regardless of whether any other Person
becomes or fails to become or ceases to be a Payor hereunder.


 


This
Promissory Note may be executed in-any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the
same agreement.


 


(signature page follows)


 


H-3

















 


IN
WITNESS WHEREOF, each Payor has caused this Note to be duly executed and
delivered by its officer thereunto duly authorized as of the date first above
written.


 


 


	
   

  	
  GPS
  CCMP MERGER CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GENERAC
  ACQUISITION CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [SUBSIDIARIES]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					



 


H-4

















 


SCHEDULE
A


 


TRANSACTIONS

ON

GLOBAL INTERCOMPANY NOTE


 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Outstanding

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Principal

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Amount of

  	
   

  	
  Amount of

  Principal

  	
   

  	
  Balance

  from Payor

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name of

  	
   

  	
  Name of

  	
   

  	
  Advance

  	
   

  	
  Paid This

  	
   

  	
  to Payee

  	
   

  	
  Notation Made

  	
   

  
	
  Date

  	
   

  	
  Payor

  	
   

  	
  Payee

  	
   

  	
  This Date

  	
   

  	
  Date

  	
   

  	
  This Date

  	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


H-5

















 


ENDORSEMENT


 


FOR VALUE RECEIVED, each of the undersigned does hereby sell, assign
and transfer to                                                          
all of its right, title and interest in and to the Global Intercompany Note, dated
[     ], [   ], 20   
(as amended, supplemented, replaced or otherwise modified from time to time, the
“Promissory Note”), made by GENERAC ACQUISITION
CORP. (“Holdings”), GPS CCMP MERGER CORP. (the “Borrower”),
and each other Subsidiary of Holdings or any other Person that becomes
a party thereto, and payable to the undersigned. This endorsement is intended
to be attached to the Promissory Note and, when so attached, shall constitute
an endorsement thereof.


 


The
initial undersigned shall be the Loan Parties. From time to time after the date
thereof, additional Subsidiaries of the Loan Parties shall become parties to
the Promissory Note (each, an “Additional Payee”) and, if such
Subsidiary is or becomes a Loan Party, a signatory to this endorsement by
executing a counterpart signature page to the Promissory Note and to this
endorsement.  Upon delivery of such
counterpart signature page to the Payors, notice of which is hereby waived
by the other Payees, each Additional Payee shall be a Payee and shall be as
fully a Payee under the Promissory Note and, if applicable, a signatory to this
endorsement as if such Additional Payee were an original Payee under the
Promissory Note and, if applicable, an original signatory hereof. Each Payee
expressly agrees that its obligations arising under the Promissory Note and
hereunder shall not be affected or diminished by the addition or release of any
other Payee under the Promissory Note or hereunder. This endorsement shall be
fully effective as to any Payee that is or becomes a signatory hereto
regardless of whether any other Person becomes or fails to become or ceases to
be a Payee to the Promissory Note or hereunder.


 


	
  Dated:

  	
   

  	
   

  



 


(signature page follows)


 


H-6

















 


	
   

  	
  GPS
  CCMP MERGER CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  GENERAC
  ACQUISITION CORP.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  [SUBSIDIARY
  LOAN PARTIES]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


H-7














 


Exhibit I


to the Second Lien Credit Agreement


 


The
foregoing certifications, together with the computations set forth in the Annex
A hereto and the financial statements delivered with this Certificate in
support hereof, are made and delivered as of the date first written above
pursuant to Section 5.04 (c) of the Credit Agreement.


 


	
   

  	
  GPS CCMP MERGER CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: [        ]

  
				



 


I-2

















 


ANNEX A TO


COMPLIANCE CERTIFICATE


 


FOR THE FISCAL [QUARTER] [YEAR] ENDING [                 ,
      ] 20   


 

















 


SCHEDULE 2.01


 


COMMITMENTS




TERM LOAN


 


	
  LENDER

  	
   

  	
  COMMITMENT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  GOLDMAN SACHS CREDIT PARTNERS L.P.

  	
   

  	
  $

  	
  430,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
  $

  	
  430,000,000.00

  	
   

  



 


SCHEDULE 2.01 – GENERAC SECOND LIEN CREDIT AGREEMENT


 

















 


Schedule 3.04

Governmental Approvals


 


Registration
of Goldman Sachs Credit Partners L.P. as a mortgage banker in Wisconsin.


 

















 


Schedule 3.08(a)

Subsidiaries


 


	
  Name

  	
   

  	
  Jurisdiction

  	
   

  	
  Percentage of each

  class of

  outstanding Equity

  Interests owned

  	
   

  	
  Ownership

  	
   

  
	
  Generac Acquisition Corp.

  	
   

  	
  Delaware

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  GPS CCMP Merger Corp.

  	
   

  	
  Wisconsin

  	
   

  	
  100

  	
  %

  	
  Generac Acquisition Corp.

  	
   

  



 

















 


Schedule 3.17

Financing Statements and Other Filings


 


	
  Type
  of Filing

  	
   

  	
  Office to File

  
	
   

  	
   

  	
   

  
	
  UCC-1
  Financing Statement

  	
   

  	
  Wisconsin
  Department of Financial Institutions

  
	
  UCC-1
  Financing Statement

  	
   

  	
  Delaware
  Secretary of State

  



 














 


Schedule 3.20

Insurance


 


Property Casualty Insurance Policy
Summary


Policy Year: 08/01/2006 – 08/01/2007 (unless
noted)


 


	
  Automobile

  	
   

  	
   

  
	
  Policy
  Carrier:

  	
   

  	
  Wausau
  Business Insurance Company

  
	
  Policy
  Coverage: 

  	
   

  	
  Auto &
  truck accidents

  
	
  Coverage
  Limits: 

  	
   

  	
  $1,000,000
  per accident

  
	
  Deductible:

  	
   

  	
  $1,000
  private passenger/$1,000 tractor trailer/$5,000 medical

  
	
   

  	
   

  	
   

  
	
  Crime

  	
   

  	
   

  
	
  Policy
  Carrier:

  	
   

  	
  Chubb
  Forefront (Federal Insurance Company)

  (8/1/2006 – 11/10/2006 Existing)

  
	
  Policy
  Coverage:

  	
   

  	
  Employee
  dishonesty, depositor’s forgery, money & securities, etc.

  
	
  Coverage
  Limits:

  	
   

  	
  $3,000,000,
  $1,000,000 for counterfeit and credit card forgery

  
	
  Deductible:

  	
   

  	
  $25,000
  per occurrence

  
	
   

  	
   

  	
   

  
	
  Crime

  	
   

  	
   

  
	
  Policy
  Carrier:

  	
   

  	
  Chubb
  Forefront (Federal Insurance Company)

  (11/10/2006 – 8/1/2007 Go-Forward Coverage)

  
	
  Policy
  Coverage:

  	
   

  	
  Employee
  dishonesty, depositor’s forgery, money & securities, etc. 

  
	
  Coverage
  Limits: 

  	
   

  	
  $3,000,000,
  $1,000,000 for counterfeit and credit card forgery 

  
	
  Deductible:

  	
   

  	
  $25,000
  per occurrence

  
	
   

  	
   

  	
   

  
	
  Directors &
  Officers:  

  	
   

  	
   

  
	
  Policy
  Carrier:

  	
   

  	
  Chubb
  Forefront (Federal Insurance Company)

  
	
   

  	
   

  	
  (8/1/2006
  – 11/10/2006 Existing)

  
	
  Policy
  Coverage: 

  	
   

  	
  Covers
  directors & officers defense costs, settlements & judgments
  

  
	
  Coverage
  Limits: 

  	
   

  	
  $10,000,000
  each loss each policy period

  
	
  Deductible:

  	
   

  	
  $0
  insuring Clause A / $50,000 insuring Clause B & C

  
	
   

  	
   

  	
   

  
	
  Directors &
  Officers:  

  	
   

  	
   

  
	
  Policy
  Carrier:

  	
   

  	
  Chubb
  Forefront (Federal Insurance Company)

  
	
   

  	
   

  	
  (11/10/2006
  – 8/1/2007 Go-Forward)

  
	
  Policy
  Coverage: 

  	
   

  	
  Covers
  directors & officers defense costs, settlements & judgments
  

  
	
  Coverage
  Limits: 

  	
   

  	
  $10,000,000
  each loss each policy period

  
	
  Deductible:

  	
   

  	
  $0
  insuring Clause A / $50,000 insuring Clause B & C

  
	
   

  	
   

  	
   

  
	
  Directors &
  Officers:  

  	
   

  	
   

  
	
  Policy
  Carrier:

  	
   

  	
  Chubb
  Forefront (Federal Insurance Company)

  
	
   

  	
   

  	
  (11/10/2006
  – 11/10/2012 Tail Policy)

  
	
  Policy
  Coverage: 

  	
   

  	
  Covers
  directors & officers defense costs, settlements & judgments
  

  
	
  Coverage
  Limits: 

  	
   

  	
  $10,000,000
  each loss each policy period

  
	
  Deductible:

  	
   

  	
  $0
  insuring Clause A / $50,000 insuring Clause B &  C

  



 

















 


	
  Fiduciary:

  	
   

  	
   

  
	
  Policy
  Carrier:

  	
   

  	
  Chubb
  Forefront (Federal Insurance Company)

  (8/1/2006 – 11/10/2006 Existing)

  
	
  Policy
  Coverage:  

  	
   

  	
  Benefit
  programs

  
	
  Coverage
  Limits:

  	
   

  	
  $4,000,000
  each loss each policy period

  
	
  Deductible:

  	
   

  	
  $1,000
  insuring Clause A / $0 voluntary settlement

  
	
   

  	
   

  	
   

  
	
  Fiduciary:  

  	
   

  	
   

  
	
  Policy
  Carrier:

  	
   

  	
  Chubb
  Forefront (Federal Insurance Company)

  (11/10/2006 – 8/1/2007 Go-Forward)

  
	
  Policy
  Coverage:  

  	
   

  	
  Benefit
  programs

  
	
  Coverage
  Limits:

  	
   

  	
  $4,000,000
  each loss each policy period

  
	
  Deductible:

  	
   

  	
  $1,000
  insuring Clause A / $0 voluntary settlement

  
	
   

  	
   

  	
   

  
	
  Fiduciary:  

  	
   

  	
   

  
	
  Policy
  Carrier:

  	
   

  	
  Chubb
  Forefront (Federal Insurance Company)

  (11/10/2006 – 11/10/2012 Tail Policy)

  
	
  Policy
  Coverage:

  	
   

  	
  Benefit
  programs

  
	
  Coverage
  Limits:

  	
   

  	
  $4,000,000
  each loss each policy period

  
	
  Deductible:

  	
   

  	
  $1,000
  insuring Clause A / $0 voluntary settlement

  
	
   

  	
   

  	
   

  
	
  Special
  Crime:

  	
   

  	
   

  
	
  Policy
  Carrier:

  	
   

  	
  Chubb
  Forefront (Federal Insurance Company)

  (8/1/2006 – 11/10/2006 Existing)

  
	
  Policy
  Coverage:  

  	
   

  	
  Kidnap,
  Ransom & Extortion

  
	
  Coverage
  Limits:

  	
   

  	
  $1,000,000
  each loss each policy period 

  
	
  Deductible:

  	
   

  	
  $0

  
	
   

  	
   

  	
   

  
	
  Special
  Crime:

  	
   

  	
   

  
	
  Policy
  Carrier:

  	
   

  	
  Chubb
  Forefront (Federal Insurance Company)

  (11/10/2006 – 8/1/2007 Go-Forward)

  
	
  Policy
  Coverage:  

  	
   

  	
  Kidnap,
  Ransom & Extortion

  
	
  Coverage
  Limits:

  	
   

  	
  $1,000,000
  each loss each policy period 

  
	
  Deductible:

  	
   

  	
  $0

  
	
   

  	
   

  	
   

  
	
  Worker’s
  Compensation:

  	
   

  	
   

  
	
  Policy
  Carrier: 

  	
   

  	
  Wausau
  Business Insurance Company 

  
	
  Policy
  Coverage: 

  	
   

  	
  Statutory
  benefits

  
	
  Coverage
  Limits: 

  	
   

  	
  $500,000
  each accident each employee 

  
	
  Deductible:

  	
   

  	
  $0

  
	
   

  	
   

  	
   

  
	
  General
  Liability:

  	
   

  	
   

  
	
  Policy
  Carrier: 

  	
   

  	
  Wausau
  Underwriters Insurance Co.

  
	
  Policy
  Coverage: 

  	
   

  	
  Products
  liability, premises, personal injury, employee benefits liability 

  
	
  Coverage
  Limits: 

  	
   

  	
  $1,000,000
  each occurrence / $2,000,000 aggregate

  
	
  Deductible:

  	
   

  	
  $25,000
  per occurrence / $100,000 aggregate

  



 


2

















 


	
  Umbrella:

  	
   

  	
   

  
	
  Policy
  Carrier: 

  	
   

  	
  Athena
  Assurance (St. Paul Fire & Marine)

  
	
  Policy
  Coverage:

  	
   

  	
  Umbrella
  over auto, G/L, employer’s liability, foreign, and employee benefits
  liability

  
	
  Coverage
  Limits: 

  	
   

  	
  $10,000,000
  each occurrence / $10,000,000 aggregate

  
	
  Deductible:

  	
   

  	
  $0
  / $10,000 insured’s retention

  
	
   

  	
   

  	
   

  
	
  Excess
  Umbrella:  

  	
   

  	
   

  
	
  Policy
  Carrier: 

  	
   

  	
  Firemans
  Fund Insurance Co.

  
	
  Policy
  Coverage:

  	
   

  	
  Excess
  over umbrella on auto, G/L, employer’s liability, foreign, and employee
  benefits liability

  
	
  Coverage
  Limits: 

  	
   

  	
  $40,000,000
  each occurrence / $40,000,000 aggregate

  
	
  Deductible:

  	
   

  	
  $0

  
	
   

  	
   

  	
   

  
	
  International
  Package:  

  	
   

  	
   

  
	
  Policy
  Carrier:

  	
   

  	
  St.
  Paul Fire and Marine

  
	
  Policy
  Coverage:

  	
   

  	
  International
  general liability, auto, voluntary work comp, and MEDEX 

  
	
  Coverage
  Limits: 

  	
   

  	
  $1,000,000
  each

  
	
  Deductible:

  	
   

  	
  $0

  
	
   

  	
   

  	
   

  
	
  Property/BI/Equipment
  Breakdown:

  
	
  Policy
  Carrier:

  	
   

  	
  Liberty
  Mutual Property

  
	
  Policy
  Coverage:

  	
   

  	
  Blanket
  buildings & personal property / blanket business income &
  extra expense / equipment breakdown (boiler & machinery) / foreign
  tool & die

  
	
  Coverage
  Limits:

  	
   

  	
  $191,034,979
  building & personal property / $217,812,870 business interruption /
  $100,000,000 equipment breakdown

  
	
  Deductible:

  	
   

  	
  $25,000
  combined / 24hr

  
	
   

  	
   

  	
   

  
	
  Ocean
  Cargo:

  	
   

  	
   

  
	
  Policy
  Carrier: 

  	
   

  	
  Hartford

  
	
  Policy
  Coverage:

  	
   

  	
  To/from
  all ports/places in the world, excludes countries on the “U.S. Enemies” list

  
	
  Coverage
  Limits: 

  	
   

  	
  $1,000,000
  per vessel / $1,000,000 per aircraft / $25,000 per parcel post package / other

  
	
  Deductible:

  	
   

  	
  $5,000
  per occurrence

  
	
   

  	
   

  	
   

  
	
  Employed
  Lawyers:  

  	
   

  	
   

  
	
  Policy
  Carrier:

  	
   

  	
  American
  International Specialty Lines Ins. Co. (term 5/4/06-07) 

  
	
  Policy
  Coverage:

  	
   

  	
  Covers
  employed attorney of GPS or other employee assisting attorney for “wrongful acts”
  – negligent, error, omission, misstatement, breach of duty

  
	
  Coverage
  Limits: 

  	
   

  	
  $1,000,000
  per claim / $1,000,000 aggregate

  
	
  Deductible:

  	
   

  	
  $0

  



 


3

















 


	
  Lawyer’s
  Professional Liability:

  
	
  Policy
  Carrier:

  	
   

  	
  Colony
  Insurance Company (term 5/4/06-07)

  
	
  Policy
  Coverage:

  	
   

  	
  Covers
  law firm or other employee assisting attorney of law firm for negligent acts
  or omissions regarding usual and customary services

  
	
  Coverage
  Limits:

  	
   

  	
  $500,000
  per claim / $1,000,000 aggregate

  
	
  Deductible:

  	
   

  	
  $5,000

  



 


4

















 


Schedule 5.09

Mortgaged Properties


 


1.                                       305,000 square
foot facility on 60 acres located at the following street address: State
Highway 59 & Hillside Road, Genesee, Wisconsin.


 


2.                                       295,000 square
foot facility on 34 acres located at the following street address: 757 Necomb
Road, Whitewater, Wisconsin.


 


3.                                       249,000 square
foot facility on 19 acres located at the following street address: 211 Murphy
Drive, Eagle, Wisconsin.


 


4.                                       6,000 square
foot training facility on two acres located at the following street address:
214 Murphy Drive, Eagle, Wisconsin.


 


5.                                       145,000 square
foot facility on 22 acres located at the following street address: 104 Generac
Drive, Maquoketa, Iowa.


 


6.                                       Vacant parcel
constituting 18.6586 acres located in Whitewater, Wisconsin and adjacent to
Generac’s Whitewater, Wisconsin facility described above.


 

















 


Schedule 6.01

Indebtedness


 


None.


 

















 


Schedule 6.02(a)

Liens


 


	
  Jurisdiction

  	
   

  	
  Debtor

  	
   

  	
  Secured Party

  	
   

  	
  Filing Info

  
	
  Wisconsin
  SOS

  	
   

  	
  Generac
  Power Systems Inc

  	
   

  	
  NMHG
  Financial Services, Inc.

  	
   

  	
  030018068124

  
	
   

  	
   

  	
  Hilside
  Rd & Hwy 59 W

  	
   

  	
  42
  Old Ridgebury Road

  	
   

  	
  10/31/03

  
	
   

  	
   

  	
  Waukesha,
  WI 53187

  	
   

  	
  Danbury,
  CT 06810

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Wisconsin
  SOS

  	
   

  	
  Generac
  Power Systems, Inc.

  	
   

  	
  IBM
  Credit LLC

  	
   

  	
  040001844219

  
	
   

  	
   

  	
  Hillside
  Rd & Hwy 59 W

  	
   

  	
  1
  North Castle Drive

  	
   

  	
  2/3/04

  
	
   

  	
   

  	
  Waukesha,
  WI 53187

  	
   

  	
  Armonk,
  NY 10504-2575

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Wisconsin
  SOS

  	
   

  	
  Generac
  Power Systems, Inc.

  	
   

  	
  Southgate
  Capital, LLC

  	
   

  	
  050015145319

  
	
   

  	
   

  	
  Hwy
  59 & Hillside Drive

  	
   

  	
  4440
  S 108th Street

  	
   

  	
  10/19/05

  
	
   

  	
   

  	
  Waukesha,
  WI 53186

  	
   

  	
  Milwaukee,
  WI 53188

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  and

   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  US
  Bank National Association

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  777
  E Wisconsin Ave

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Milwaukee,
  WI 53202

  	
   

  	
   

  



 

















 


Schedule 6.04

Investments


 


None.


 

















 


Schedule 6.07

Transactions with Affiliates


 


None.