exv10w1



 






Exhibit 10.1




EXECUTION COPY




SECOND AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT




dated
as of December 21, 2005




among




AMERICAN REPROGRAPHICS COMPANY, L.L.C.,




AMERICAN REPROGRAPHICS HOLDINGS, L.L.C.,




AMERICAN REPROGRAPHICS COMPANY




and




CERTAIN SUBSIDIARIES OF AMERICAN REPROGRAPHICS COMPANY, L.L.C.,

as Guarantors,




VARIOUS LENDERS,




GOLDMAN SACHS CREDIT PARTNERS L.P.,

as Sole Lead Arranger and Joint Bookrunner,




JPMORGAN CHASE BANK, N.A.,

as Syndication Agent,




JPMORGAN SECURITIES INC.,

as Joint Bookrunner,




and




GENERAL ELECTRIC CAPITAL CORPORATION,

as Administrative Agent and Collateral Agent




 






Senior Secured Credit Facilities




 






 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	 	Page	 
	SECTION 1. DEFINITIONS AND INTERPRETATION	 	 	2	 
	 
	 	 	 	 	 	 
	 

	 	1.1. Definitions
	 	 	2	 
	 

	 	1.2. Accounting Terms
	 	 	32	 
	 

	 	1.3. Interpretation, etc.
	 	 	32	 
	 
	 	 	 	 	 	 
	SECTION 2. LOANS AND LETTERS OF CREDIT	 	 	32	 
	 
	 	 	 	 	 	 
	 

	 	2.1. Term Loans
	 	 	32	 
	 

	 	2.2. Revolving Loans
	 	 	33	 
	 

	 	2.3. Swing Line Loans
	 	 	34	 
	 

	 	2.4. Issuance of Letters of Credit and Purchase of Participations Therein
	 	 	36	 
	 

	 	2.5. Pro Rata Shares; Availability of Funds
	 	 	40	 
	 

	 	2.6. Use of Proceeds
	 	 	40	 
	 

	 	2.7. Evidence of Debt; Register; Lenders’ Books and Records; Notes
	 	 	40	 
	 

	 	2.8. Interest on Loans
	 	 	41	 
	 

	 	2.9. Conversion/Continuation
	 	 	43	 
	 

	 	2.10. Default Interest
	 	 	44	 
	 

	 	2.11. Fees
	 	 	44	 
	 

	 	2.12. Scheduled Payments/Commitment Reductions
	 	 	45	 
	 

	 	2.13. Voluntary Prepayments/Commitment Reductions
	 	 	46	 
	 

	 	2.14. Mandatory Prepayments/Commitment Reductions
	 	 	49	 
	 

	 	2.15. Application of Prepayments/Reductions
	 	 	51	 
	 

	 	2.16. General Provisions Regarding Payments
	 	 	52	 
	 

	 	2.17. Ratable Sharing
	 	 	54	 
	 

	 	2.18. Making or Maintaining Eurodollar Rate Loans
	 	 	54	 
	 

	 	2.19. Increased Costs; Capital Adequacy
	 	 	56	 
	 

	 	2.20. Taxes; Withholding, etc.
	 	 	57	 
	 

	 	2.21. Obligation to Mitigate
	 	 	59	 
	 

	 	2.22. Defaulting Lenders
	 	 	60	 
	 

	 	2.23. Removal or Replacement of a Lender
	 	 	60	 
	 

	 	2.24. Incremental Facilities
	 	 	61	 
	 
	 	 	 	 	 	 
	SECTION 3. CONDITIONS PRECEDENT	 	 	62	 
	 
	 	 	 	 	 	 
	 

	 	3.1. Effective Date
	 	 	62	 
	 

	 	3.2. Conditions to Each Credit Extension
	 	 	67	 
	 
	 	 	 	 	 	 
	SECTION 4. REPRESENTATIONS AND WARRANTIES	 	 	68	 
	 
	 	 	 	 	 	 
	 

	 	4.1. Organization; Requisite Power and Authority; Qualification
	 	 	68	 
	 

	 	4.2. Capital Stock and Ownership
	 	 	69	 
	 

	 	4.3. Due Authorization
	 	 	69	 
	 

	 	4.4. No Conflict
	 	 	69	 
	 

	 	4.5. Governmental Consents
	 	 	69	 
	 

	 	4.6. Binding Obligation
	 	 	70	 






i









 






	 	 	 	 	 	 	 
	 	 	 	 	 	Page	 
	 

	 	4.7. Historical Financial Statements
	 	 	70	 
	 

	 	4.8. Projections
	 	 	70	 
	 

	 	4.9. No Material Adverse Change
	 	 	70	 
	 

	 	4.10. No Restricted Junior Payments
	 	 	70	 
	 

	 	4.11. Adverse Proceedings, etc.
	 	 	70	 
	 

	 	4.12. Payment of Taxes
	 	 	71	 
	 

	 	4.13. Properties
	 	 	71	 
	 

	 	4.14. Environmental Matters
	 	 	71	 
	 

	 	4.15. No Defaults
	 	 	72	 
	 

	 	4.16. Material Contracts
	 	 	72	 
	 

	 	4.17. Governmental Regulation
	 	 	72	 
	 

	 	4.18. Margin Stock
	 	 	72	 
	 

	 	4.19. Employee Matters
	 	 	72	 
	 

	 	4.20. Employee Benefit Plans
	 	 	73	 
	 

	 	4.21. Certain Fees
	 	 	73	 
	 

	 	4.22. Solvency
	 	 	74	 
	 

	 	4.23. Related Agreements
	 	 	74	 
	 

	 	4.24. Compliance with Statutes, etc.
	 	 	74	 
	 

	 	4.25. Disclosure
	 	 	74	 
	 

	 	4.26. Existing Seller Subordinated Notes and Existing Earn-Out Obligations
	 	 	75	 
	 
	 	 	 	 	 	 
	SECTION 5. AFFIRMATIVE COVENANTS	 	 	75	 
	 
	 	 	 	 	 	 
	 

	 	5.1. Financial Statements and Other Reports
	 	 	75	 
	 

	 	5.2. Existence
	 	 	79	 
	 

	 	5.3. Payment of Taxes and Claims
	 	 	79	 
	 

	 	5.4. Maintenance of Properties
	 	 	79	 
	 

	 	5.5. Insurance
	 	 	79	 
	 

	 	5.6. Inspections
	 	 	80	 
	 

	 	5.7. Lenders Meetings
	 	 	80	 
	 

	 	5.8. Compliance with Laws
	 	 	80	 
	 

	 	5.9. Environmental
	 	 	80	 
	 

	 	5.10. Subsidiaries
	 	 	82	 
	 

	 	5.11. Additional Material Real Estate Assets
	 	 	82	 
	 

	 	5.12. Interest Rate Protection
	 	 	82	 
	 

	 	5.13. Further Assurances
	 	 	82	 
	 

	 	5.14. Miscellaneous Business Covenants
	 	 	83	 
	 
	 	 	 	 	 	 
	SECTION 6. NEGATIVE COVENANTS	 	 	83	 
	 
	 	 	 	 	 	 
	 

	 	6.1. Indebtedness
	 	 	84	 
	 

	 	6.2. Liens
	 	 	85	 
	 

	 	6.3. Equitable Lien
	 	 	87	 
	 

	 	6.4. No Further Negative Pledges
	 	 	87	 
	 

	 	6.5. Restricted Junior Payments
	 	 	87	 
	 

	 	6.6. Restrictions on Subsidiary Distributions
	 	 	88	 
	 

	 	6.7. Investments
	 	 	88	 
	 

	 	6.8. Financial Covenants
	 	 	89	 
	 

	 	6.9. Fundamental Changes; Disposition of Assets; Acquisitions
	 	 	91	 






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	 	 	 	 	 	Page	 
	 

	 	6.10. Disposal of Subsidiary Interests
	 	 	92	 
	 

	 	6.11. Sales and Lease-Backs
	 	 	92	 
	 

	 	6.12. Transactions with Shareholders and Affiliates
	 	 	92	 
	 

	 	6.13. Conduct of Business
	 	 	93	 
	 

	 	6.14. Permitted Activities of Holdings and AR Holdings
	 	 	93	 
	 

	 	6.15. Amendments or Waivers of Certain Related Agreements
	 	 	93	 
	 

	 	6.16. Amendments or Waivers with Respect to Subordinated Indebtedness
	 	 	94	 
	 

	 	6.17. Fiscal Year
	 	 	94	 
	 
	 	 	 	 	 	 
	SECTION 7. GUARANTY	 	 	94	 
	 
	 	 	 	 	 	 
	 

	 	7.1. Guaranty of the Obligations
	 	 	94	 
	 

	 	7.2. Contribution by Guarantors
	 	 	94	 
	 

	 	7.3. Payment by Guarantors
	 	 	95	 
	 

	 	7.4. Liability of Guarantors Absolute
	 	 	95	 
	 

	 	7.5. Waivers by Guarantors
	 	 	97	 
	 

	 	7.6. Guarantors’ Rights of Subrogation, Contribution, etc.
	 	 	98	 
	 

	 	7.7. Subordination of Other Obligations
	 	 	98	 
	 

	 	7.8. Continuing Guaranty
	 	 	99	 
	 

	 	7.9. Authority of Guarantors or Company
	 	 	99	 
	 

	 	7.10. Financial Condition of Company
	 	 	99	 
	 

	 	7.11. Bankruptcy, etc.
	 	 	99	 
	 

	 	7.12. Discharge of Guaranty Upon Sale of Guarantor
	 	 	100	 
	 
	 	 	 	 	 	 
	SECTION 8. EVENTS OF DEFAULT	 	 	100	 
	 
	 	 	 	 	 	 
	 

	 	8.1. Events of Default
	 	 	100	 
	 
	 	 	 	 	 	 
	SECTION 9. AGENTS	 	 	103	 
	 
	 	 	 	 	 	 
	 

	 	9.1. Appointment of Agents
	 	 	103	 
	 

	 	9.2. Powers and Duties
	 	 	103	 
	 

	 	9.3. General Immunity
	 	 	104	 
	 

	 	9.4. Agents Entitled to Act as Lender
	 	 	105	 
	 

	 	9.5. Lenders’ Representations, Warranties and Acknowledgment
	 	 	105	 
	 

	 	9.6. Right to Indemnity
	 	 	105	 
	 

	 	9.7. Successor Administrative Agent and/or Collateral Agent and Swing Line Lender
	 	 	106	 
	 

	 	9.8. Collateral Documents and Guaranty
	 	 	106	 
	 
	 	 	 	 	 	 
	SECTION 10. MISCELLANEOUS	 	 	107	 
	 
	 	 	 	 	 	 
	 

	 	10.1. Notices
	 	 	107	 
	 

	 	10.2. Expenses
	 	 	108	 
	 

	 	10.3. Indemnity
	 	 	108	 
	 

	 	10.4. Set-Off
	 	 	109	 
	 

	 	10.5. Amendments and Waivers
	 	 	109	 
	 

	 	10.6. Successors and Assigns; Participations
	 	 	111	 
	 

	 	10.7. Independence of Covenants
	 	 	114	 
	 

	 	10.8. Survival of Representations, Warranties and Agreements
	 	 	114	 
	 

	 	10.9. No Waiver; Remedies Cumulative
	 	 	114	 






iii









 






	 	 	 	 	 	 	 
	 	 	 	 	 	Page	 
	 

	 	10.10. Marshalling; Payments Set Aside
	 	 	115	 
	 

	 	10.11. Severability
	 	 	115	 
	 

	 	10.12. Obligations Several; Independent Nature of Lenders’ Rights
	 	 	115	 
	 

	 	10.13. Headings
	 	 	115	 
	 

	 	10.14. APPLICABLE LAW
	 	 	115	 
	 

	 	10.15. CONSENT TO JURISDICTION
	 	 	115	 
	 

	 	10.16. WAIVER OF JURY TRIAL
	 	 	116	 
	 

	 	10.17. Confidentiality
	 	 	117	 
	 

	 	10.18. Press Releases and Related Matters
	 	 	117	 
	 

	 	10.19. Usury Savings Clause
	 	 	118	 
	 

	 	10.20. Reaffirmation and Grant of Security Interest
	 	 	118	 
	 

	 	10.21. Counterparts
	 	 	119	 
	 

	 	10.22. USA PATRIOT Act
	 	 	119	 
	 

	 	10.23. Effectiveness
	 	 	119	 
	 

	 	10.24. Reinstatement
	 	 	119	 






	 	 	 	 	 	 	 
	APPENDICES:

	 	 	A	 	 	Notice Addresses
	 
	 	 	 	 	 	 
	SCHEDULES:

	 	 	1.1(a)	 	 	Existing Earn-Out Agreements
	 

	 	 	1.1(b)	 	 	Existing Seller Subordinated Notes
	 

	 	 	1.1(c)	 	 	Restructuring Description
	 

	 	 	3.1(n)	 	 	Counsel Opinions
	 

	 	 	4.1	 	 	Jurisdictions of Organization and Qualification
	 

	 	 	4.2	 	 	Capital Stock and Ownership
	 

	 	 	4.13	 	 	Real Estate Assets
	 

	 	 	4.16	 	 	Material Contracts
	 

	 	 	4.20	 	 	Retiree Benefits
	 

	 	 	5.15	 	 	Post-Closing Items
	 

	 	 	5.16	 	 	Restructuring
	 

	 	 	6.1	 	 	Certain Indebtedness
	 

	 	 	6.2	 	 	Certain Liens
	 

	 	 	6.5(f)	 	 	Permitted Cash Payments of Additional Earn-Out Obligations
	 

	 	 	6.7	 	 	Certain Investments
	 

	 	 	6.12	 	 	Certain Affiliate Transactions
	 
	 	 	 	 	 	 
	EXHIBITS:

	 	 	A-1	 	 	Funding Notice
	 

	 	 	A-2	 	 	Conversion/Continuation Notice
	 

	 	 	A-3	 	 	Issuance Notice
	 

	 	 	B-1	 	 	Tranche C Term Loan Note
	 

	 	 	B-2	 	 	Revolving Loan Note
	 

	 	 	B-3	 	 	Swing Line Note
	 

	 	 	C	 	 	Compliance Certificate
	 

	 	 	D	 	 	Opinions of Counsel
	 

	 	 	E	 	 	Assignment Agreement






iv









 






	 	 	 	 	 	 	 
	 

	 	 	F	 	 	Certificate Re Non-bank Status
	 

	 	 	G	 	 	Effective Date Certificate
	 

	 	 	H	 	 	Counterpart Agreement
	 

	 	 	I	 	 	Pledge and Security Agreement
	 

	 	 	J	 	 	Mortgage
	 

	 	 	K	 	 	Landlord Waiver and Consent Agreement
	 

	 	 	L	 	 	Seller Subordination Agreement
	 

	 	 	M	 	 	Joinder Agreement







v









 






SECOND AMENDED AND RESTATED

CREDIT AND GUARANTY AGREEMENT




     This SECOND AMENDED AND
RESTATED CREDIT AND GUARANTY AGREEMENT, dated as of
December 21,
2005, is entered into by and among AMERICAN REPROGRAPHICS COMPANY, L.L.C., a California limited
liability company (“Company”), AMERICAN REPROGRAPHICS HOLDINGS, L.L.C. (f/k/a Ford Graphics
Holdings, L.L.C.), a California limited liability company (“AR Holdings”), AMERICAN REPROGRAPHICS
COMPANY, a Delaware corporation (“Holdings”), and CERTAIN SUBSIDIARIES OF COMPANY, as Guarantors,
the Lenders party hereto from time to time, GOLDMAN SACHS CREDIT PARTNERS L.P. (“GSCP”), as Sole
Lead Arranger and Joint Bookrunner, JPMORGAN CHASE BANK, N.A. (“JPMCB”), as Syndication Agent (in
such capacity, “Syndication Agent”), JPMORGAN SECURITIES INC. (“JPM”), as Joint Bookrunner, GENERAL
ELECTRIC CAPITAL CORPORATION (“GECC”), as Administrative Agent (together with its permitted
successors in such capacity, “Administrative Agent”) and as Collateral Agent (together with its
permitted successors in such capacity, “Collateral Agent”).



RECITALS:




     WHEREAS, capitalized terms used in these Recitals shall have the respective meanings set forth
for such terms in Section 1.1 hereof;



     WHEREAS, Company, AR Holdings, Holdings, the Guarantors, certain financial institutions and
other persons (the “Existing Lenders”), GSCP, as lead arranger, sole bookrunner, and as syndication
agent, and GECC, as administrative agent and collateral agent, are parties to that certain Amended
and Restated Credit and Guaranty Agreement dated as of June 30, 2005 (as heretofore amended,
supplemented or otherwise modified, the “Existing Credit Agreement”), pursuant to which the
Existing Lenders have extended certain credit facilities to Company, the proceeds of which have
been used to consummate a refinancing and for working capital, certain permitted acquisitions and
general corporate purposes;



     WHEREAS, Company, AR Holdings, Holdings, certain subsidiaries of Company, GSCP, as lead
arranger, sole bookrunner, syndication agent, administrative agent and collateral agent, and the
lenders party thereto are parties to the Second Lien Credit Agreement, pursuant to which the
lenders party thereto have extended certain credit facilities to Company, the proceeds of which
have been used to consummate a refinancing and for working capital, certain permitted acquisitions
and general corporate purposes;



     WHEREAS, Company desires that certain Existing Lenders agree to amend and restate the Existing
Credit Agreement in its entirety to make certain changes as more fully set forth herein, which
amendment and restatement shall become effective upon satisfaction of the conditions precedent set
forth herein;



     WHEREAS, Company has agreed to secure all of its Obligations by reaffirming its grant to
Collateral Agent, for the benefit of Secured Parties, of a first priority Lien on substantially all



 









 







of its assets, including a pledge of all of the Capital Stock of each of its Domestic
Subsidiaries and 65% of all of the Capital Stock of each of its Foreign Subsidiaries;



     WHEREAS, Guarantors have agreed to guarantee the obligations of Company hereunder and to
secure their respective Obligations by reaffirming its grant to Collateral Agent, for the benefit
of Secured Parties, of a first priority Lien on substantially all of their respective assets,
including a pledge of all of the Capital Stock of each of their respective Domestic Subsidiaries
(including Company) and 65% of all of the Capital Stock of each of their respective Foreign
Subsidiaries.



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



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



     NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained, the parties hereto agree as follows:



SECTION 1. DEFINITIONS AND INTERPRETATION




     1.1. Definitions. The following terms used herein, including in the preamble, recitals,
exhibits and schedules hereto, shall have the following meanings:



          “Additional Earn-Out Obligation” means any unsecured contingent liability of Company owed to
any seller in connection with any Permitted Acquisition that (a) constitutes a portion of the
purchase price for such Permitted Acquisition but is not an amount certain on the date of
incurrence thereof and is not subject to any right of acceleration by such seller, (b) is only
payable upon the achievement of performance standards by the Person or other property acquired in
such Permitted Acquisition and in an amount based upon such achievement provided that the maximum
aggregate amount of such liability shall be fixed at a specified amount on the date of such
Permitted Acquisition, and (c) is expressly subordinate and made junior to the payment and
performance in full of all the Obligations in accordance with a subordination agreement
substantially in the form of Exhibit L or an agreement containing substantially similar terms, in
each case with such modifications thereto as may be consented to by Administrative Agent;
provided, however that up to $13,000,000 per annum of such unsecured contingent liabilities
of Company shall not be required to be subordinate pursuant to the above clause (c).



          “Additional Seller Subordinated Notes” means, collectively, the unsecured promissory notes
issued by Company to any seller in connection with a Permitted Acquisition which are expressly
subordinated and made junior to the payment and performance in full of all
the Obligations in accordance with a subordination agreement substantially in the form of
Exhibit L with such modifications thereto as may be consented to by Administrative Agent.



2









 





          “Adjusted Eurodollar Rate” means, for each Interest Period, a rate of interest determined by
Administrative Agent equal to:




     (a) the offered rate for deposits in United States Dollars for the applicable Interest
Period that appears on Telerate Page 3750 as of 11:00 a.m. (London time), on the second full
LIBOR Business Day next preceding the first day of such Interest Period (unless such date is
not a Business Day, in which event the next succeeding Business Day will be used); divided
by




     (b) a number equal to 1.0 minus the aggregate (but without duplication) of the
rates (expressed as a decimal fraction) of reserve requirements in effect on the day that is
two (2) LIBOR Business Days prior to the beginning of such Interest Period (including basic,
supplemental, marginal and emergency reserves under any regulations of the Federal Reserve
Board or other Governmental Authority having jurisdiction with respect thereto, as now and
from time to time in effect) for Eurocurrency funding (currently referred to as
“Eurocurrency Liabilities” in Regulation D of the Federal Reserve Board) that are required
to be maintained by a member bank of the Federal Reserve System.


If such interest rates shall cease to be available from Telerate News Service, the Adjusted
Eurodollar Rate shall be determined from such financial reporting service or other information as
shall be available to Administrative Agent.




          “Administrative Agent” as defined in the preamble hereto.



          “Adverse Proceeding” means any action, suit, proceeding (whether administrative, judicial or
otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of
Holdings or any of its Subsidiaries) at law or in equity, or before or by any Governmental
Authority, domestic or foreign (including any Environmental Claims), whether pending or, to the
knowledge of Holdings or any of its Subsidiaries, threatened against or affecting Holdings or any
of its Subsidiaries or any property of Holdings or any of its Subsidiaries.



          “Affected Lender” as defined in Section 2.18(b).



          “Affected Loans” as defined in Section 2.18(b).



          “Affiliate” means, as applied to any Person, any other Person directly or indirectly
controlling, controlled by, or under common control with, that Person. For the purposes of this
definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled
by” and “under common control with”), as applied to any Person, means the possession, directly or
indirectly, of the power (i) to vote 5% or more of the Securities having ordinary voting power for
the election of directors of such Person or (ii) to direct or cause the direction of the management
and policies of that Person, whether through the ownership of voting securities or by contract or
otherwise.



          “Agent” means each of Syndication Agent, Administrative Agent and Collateral Agent.



3









 





          “Aggregate Amounts Due” as defined in Section 2.17.



          “Aggregate Payments” as defined in Section 7.2.



          “Agreement” means this Second Amended and Restated Credit and Guaranty Agreement, dated as of
December 21, 2005, as it may be amended, supplemented or otherwise modified from time to time.



          “Applicable Margin’’ means (i) with respect to Revolving Loans that are Eurodollar Rate Loans,
a percentage, per annum, determined by reference to the Leverage Ratio in effect from time to time
as set forth below:



	 	 	 
	Leverage	 	Applicable Margin
	Ratio	 	for Revolving Loans
	3 4.0:100
	 	2.75%
	< 4.0:1.0
	 	 
	3 3.5:1.0
	 	2.50%
	< 3.5:1.0
	 	 
	3 3.0:1.0
	 	2.25%
	< 3.0:1.0
	 	2.00%





and (ii) with respect to Swing Line Loans and Revolving Loans that are Index Rate Loans, an amount
equal to (a) the Applicable Margin for Eurodollar Rate Loans as set forth in clause (i)(a) or
(i)(b) above, as applicable, minus (b) 1.00% per annum. No change in the Applicable Margin shall
be effective until three Business Days after the date on which Administrative Agent shall have
received the applicable financial statements and a Compliance Certificate pursuant to Section
5.1(d) calculating the Leverage Ratio. At any time Company has not submitted to Administrative
Agent the applicable information as and when required under Section 5.1(d), the Applicable Margin
shall be determined as if the Leverage Ratio were in excess of 4.0:1.00. Within one Business Day
of receipt of the applicable information under Section 5.1(d), Administrative Agent shall give each
Lender telefacsimile or telephonic notice (confirmed in writing) of the Applicable Margin in effect
from such date.




          “AR Holdings” shall mean American Reprographics Holdings, L.L.C. (f/k/a Ford Graphics
Holdings, L.L.C.), a California limited liability company.



          “Asset Sale” means a sale, lease or sub-lease (as lessor or sublessor), sale and leaseback,
assignment, conveyance, transfer or other disposition to, or any exchange of property with, any
Person (other than Holdings, Company or any Guarantor Subsidiary), in one transaction or a series
of transactions, of all or any part of Holdings’ or any of its Subsidiaries’ businesses, assets or
properties of any kind, whether real, personal, or mixed and whether
tangible or intangible, whether now owned or hereafter acquired, including, without
limitation, the Capital Stock of any of Holdings’ Subsidiaries, other than (i) inventory (or other
assets) sold



4









 







or leased in the ordinary course of business (excluding any such sales by operations
or divisions discontinued or to be discontinued), (ii) Permitted Sale-Leasebacks and (iii) sales of
other assets for aggregate consideration of less than $500,000 in the aggregate during any Fiscal
Year and less than $2,000,000 in the aggregate from and after the Closing Date so long as this
Agreement shall remain in effect.



          “Assignment Agreement” means an Assignment and Assumption Agreement substantially in the form
of Exhibit E, with such amendments or modifications as may be approved by Administrative Agent.



          “Authorized Officer” means, as applied to any Person, any individual holding the position of
chairman of the board (if an officer), chief executive officer, president or one of its vice
presidents (or the equivalent thereof), and such Person’s chief financial officer or treasurer.



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



          “Beneficiary” means each Agent, Issuing Bank, Lender and Lender Counterparty.



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



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



          “Capital Stock” means any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation), including, without limitation, partnership interests and
membership interests, and any and all warrants, rights or options to purchase or other arrangements
or rights to acquire any of the foregoing.



          “Cash” means money, currency or a credit balance in any demand or Deposit Account.



          “Cash Equivalents” means, as at any date of determination, (i) marketable securities (a)
issued or directly and unconditionally guaranteed as to interest and principal by the United States
Government or (b) issued by any agency of the United States the obligations of which are backed by
the full faith and credit of the United States, in each case maturing within
one year after such date; (ii) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any public instrumentality



5









 







thereof, in each case maturing within one year after such date and having, at the time of the
acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (iii)
commercial paper maturing no more than one year from the date of creation thereof and having, at
the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from
Moody’s; (iv) certificates of deposit or bankers’ acceptances maturing within one year after such
date and issued or accepted by any Lender or by any commercial bank organized under the laws of the
United States of America or any state thereof or the District of Columbia that (a) is at least
“adequately capitalized” (as defined in the regulations of its primary Federal banking regulator)
and (b) has Tier 1 capital (as defined in such regulations) of not less than $100,000,000; and (v)
shares of any money market mutual fund that (a) has substantially all of its assets invested
continuously in the types of investments referred to in clauses (i) and (ii) above, (b) has net
assets of not less than $500,000,000, and (c) has the highest rating obtainable from either S&P or
Moody’s.



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



          “Change of Control” means, at any time, (i) Sathiyamurthy Chandramohan or Kumarakulasingam
Suriyakumar shall collectively cease to beneficially own and control at least 15% on a fully
diluted basis of the economic and voting interests in the Capital Stock of Holdings; (ii) any
Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) other than
Sponsor, Sathiyamurthy Chandramohan or Kumarakulasingam Suriyakumar (a) shall have acquired
beneficial ownership of 25% or more on a fully diluted basis of the voting and/or economic interest
in the Capital Stock of Holdings or (b) shall have obtained the power (whether or not exercised) to
elect a majority of the members of the board of directors (or similar governing body) of Holdings;
(iii) (a) prior to the Restructuring, Holdings shall cease to beneficially own and control 100% on
a fully diluted basis of the economic and voting interest in the Capital Stock of AR Holdings and
(b) after the Restructuring, Holdings shall cease to beneficially own and control 100% on a fully
diluted basis of the economic and voting interest in the Capital Stock of Company; (iv) prior to
the Restructuring, AR Holdings shall cease to beneficially own and control 100% on a fully diluted
basis of the economic and voting interest in the Capital Stock of Company; or (v) the majority of
the seats (other than vacant seats) on the board of directors (or similar governing body) of
Holdings cease to be occupied by Persons who either (a) were members of the board of advisors of
Holdings on February 4, 2005 or (b) were appointed to the board of advisors in accordance with the
provisions of the Holdings by-laws.



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



          “Closing Date” means the date on which the Existing Loans were made under the Existing Credit
Agreement, which date was December 18, 2003.



6









 





          “Collateral” means, collectively, all of the real, personal and mixed property (including
Capital Stock) in which Liens are purported to be granted pursuant to the Collateral Documents as
security for the Obligations.



          “Collateral Agent” as defined in the preamble hereto.



          “Collateral Documents” means the Pledge and Security Agreement, the Mortgages, the Landlord
Personal Property Collateral Access Agreements, if any, and all other instruments, documents and
agreements delivered by any Credit Party pursuant to this Agreement or any of the other Credit
Documents in order to grant to Collateral Agent, for the benefit of Lenders, a Lien on any real,
personal or mixed property of that Credit Party as security for the Obligations.



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



          “Commitment” means any Revolving Commitment or New Term Loan Commitment.



          “Company” as defined in the preamble hereto.



          “Company Operating Agreement” means the Amended and Restated Operating Agreement of Company
dated as of April 10, 2000 as in effect on the Closing Date and as such agreement may thereafter be
amended, restated, supplemented or otherwise modified from time to time to the extent permitted
under Section 6.15.



          “Compliance Certificate” means a Compliance Certificate substantially in the form of Exhibit C.



          “Consolidated Adjusted EBITDA” means, for any period, an amount determined for Holdings and
its Subsidiaries on a consolidated basis equal to (i) the sum, without duplication, of the amounts
for such period of (a) Consolidated Net Income, and to the extent already deducted in arriving at
Consolidated Net Income: (b) Consolidated Interest Expense, (c) provisions for taxes based on
income, (d) total depreciation expense, (e) total amortization expense, and (f) other non-Cash
items reducing Consolidated Net Income (excluding any such non-Cash item to the extent that it
represents an accrual or reserve for potential Cash items in any future period or amortization of a
prepaid Cash item that were paid in a prior period), minus (ii) other non-Cash items
increasing Consolidated Net Income for such period (excluding any such non-Cash item to the extent
it represents the reversal of an accrual or reserve for potential Cash item in any prior period).



          “Consolidated Adjusted EBITDAR’’ means, for any period, the sum of the amounts for such period
of (i) Consolidated Adjusted EBITDA plus (ii) Consolidated Rental Payments, each of the foregoing
as determined on a consolidated basis for Company and its Subsidiaries in conformity with GAAP.



7









 





          “Consolidated Capital Expenditures” means, for any period, the aggregate of all expenditures
(whether paid in cash or other consideration or accrued as a liability and including that portion
of Capital Leases which is capitalized on the consolidated balance sheet of Company and its
Subsidiaries) of Holdings and its Subsidiaries during such period determined on a consolidated
basis that, in accordance with GAAP, are or should be included in “purchase of property and
equipment” or similar items reflected in the consolidated statement of cash flows of Holdings and
its Subsidiaries; provided, however, that Consolidated Capital Expenditures shall
not include any expenditures by Holdings or any of its Subsidiaries during that period in
connection with a Permitted Acquisition, including any payment of any Earn-Out Obligation during
that period.



          “Consolidated Cash Interest Expense” means, for any period, Consolidated Interest Expense for
such period, excluding any amount not payable in Cash; provided, for the avoidance of
doubt, that any prepayment premium paid pursuant to Section 2.13(b) of the Second Lien Credit
Agreement shall not be included in the calculation of Consolidated Cash Interest Expense.



          “Consolidated Current Assets” means, as at any date of determination, the total assets of
Holdings and its Subsidiaries on a consolidated basis that may properly be classified as current
assets in conformity with GAAP, excluding Cash and Cash Equivalents.



          “Consolidated Current Liabilities” means, as at any date of determination, the total
liabilities of Holdings and its Subsidiaries on a consolidated basis that may properly be
classified as current liabilities in conformity with GAAP, excluding the current portion of long
term debt.



          “Consolidated Excess Cash Flow” means, for any period, an amount (if positive) equal to: (i)
the sum, without duplication, of the amounts for such period of (a) Consolidated Adjusted EBITDA,
plus (b) the Consolidated Working Capital Adjustment, minus (ii) the sum, without
duplication, of the amounts for such period of (a) voluntary and scheduled repayments of
Consolidated Total Debt (excluding (i) repayments of Revolving Loans or Swing Line Loans except to
the extent (x) such Revolving Loans were made on the Closing Date and are repaid prior to the end
of Fiscal Year 2004 and such repayment amount does not exceed 75% of the aggregate amount of
Revolving Loans made on the Closing Date or (y) the Revolving Commitments are permanently reduced
in connection with such repayments and (ii) repurchases of Term Loans made pursuant to Section
2.13(c)), (b) Consolidated Capital Expenditures (net of any proceeds of (y) any related financings
with respect to such expenditures and (z) any sales of assets used to finance such expenditures),
(c) Consolidated Cash Interest Expense, (d) the provision for current taxes based on income of
Holdings and its Subsidiaries and payable in cash with respect to such period, and any Permitted
Tax Distributions payable in cash with respect to such period, (e) the cash portion of any payment
of any Earn-Out Obligation made by Company during such period, (f) any scheduled repayments under
any Seller Subordinated Notes made by Company made in Cash during such period, (g) the cash portion
of any payment made with respect to a Permitted Acquisition completed during such period, and (h)
the cash portion of any payments made during such period in connection with any repurchases of
Holdings’ Capital Stock from deceased, disabled, terminated or retired employees permitted under
Section 6.5(e).



8









 





          “Consolidated Fixed Charges” means, for any period, the sum, without duplication, of the
amounts determined for Holdings and its Subsidiaries on a consolidated basis equal to (i)
Consolidated Cash Interest Expense, (ii) scheduled payments of principal on Consolidated Total
Debt, (iii) Consolidated Rental Payments, (iv) payments of Earn-Out Obligations required to be made
by Company or any of its Subsidiaries for such period, and (v) scheduled debt repayments required
to be made by Company or any of its Subsidiaries under the Seller Subordinated Notes for such
period.



          “Consolidated Interest Expense” means, for any period, total interest expense (including that
portion attributable to Capital Leases in accordance with GAAP and capitalized interest) of
Holdings and its Subsidiaries on a consolidated basis with respect to all outstanding Indebtedness
of Holdings and its Subsidiaries, including all commissions, discounts and other fees and charges
owed with respect to letters of credit and net costs under Interest Rate Agreements, but excluding,
however, any amounts referred to in Section 2.11(d) payable on or before the Closing Date.



          “Consolidated Net Income” means, for any period, (i) the net income (or loss) of Holdings and
its Subsidiaries on a consolidated basis for such period taken as a single accounting period
determined in conformity with GAAP, minus (ii) (a) the income (or loss) of any Person
(other than a Subsidiary of Holdings) in which any other Person (other than Holdings or any of its
Subsidiaries) has a joint interest, except to the extent of the amount of dividends or other
distributions actually paid to Holdings or any of its Subsidiaries by such Person during such
period, (b) the income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of
Holdings or is merged into or consolidated with Holdings or any of its Subsidiaries or that
Person’s assets are acquired by Holdings or any of its Subsidiaries, (c) the income of any
Subsidiary of Holdings to the extent that the declaration or payment of dividends or similar
distributions by that Subsidiary of that income is not at the time permitted by operation of the
terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary, (d) any after-tax gains or losses
attributable to Asset Sales or returned surplus assets of any Pension Plan, and (e) (to the extent
not included in clauses (a) through (d) above) any net extraordinary gains or net extraordinary
losses.



          “Consolidated Rental Payments” means, for any period, the total rent expense (including,
without limitation, under any agreement to rent or lease any real or personal property (exclusive
of obligations under Capital Leases)) of Company and its Subsidiaries, determined on a consolidated
basis for Company and its Subsidiaries in accordance with GAAP.



          “Consolidated Total Debt” means, as at any date of determination, the aggregate stated balance
sheet amount of all Indebtedness of Holdings and its Subsidiaries determined on a consolidated
basis in accordance with GAAP.



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



          “Consolidated Working Capital Adjustment” means, for any period on a consolidated basis, the
amount (which may be a negative number) by which Consolidated



9









 







Working Capital as of the beginning of such period exceeds (or is less than) Consolidated
Working Capital as of the end of such period.



          “Continuing Lenders” means those lenders under the Existing Credit Agreement.



          “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, undertaking, agreement or
other instrument to which that Person is a party or by which it or any of its properties is bound
or to which it or any of its properties is subject.



          “Contributing Guarantors” as defined in Section 7.2.



          “Conversion/Continuation Date” means the effective date of a continuation or conversion, as
the case may be, as set forth in the applicable Conversion/Continuation Notice.



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



          “Counterpart Agreement” means a Counterpart Agreement substantially in the form of Exhibit H
delivered by a Credit Party pursuant to Section 5.10.



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



          “Credit Document” means any of this Agreement, the Notes, if any, the Collateral Documents,
any documents or certificates executed by Company in favor of Issuing Bank relating to Letters of
Credit, and all other documents, instruments or agreements executed and delivered by a Credit Party
for the benefit of any Agent, Issuing Bank or any Lender in connection with this Agreement.



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



          “Credit Party” means each Person (other than any Agent, Issuing Bank or any Lender or any
other representative thereof) from time to time party to a Credit Document.



          “Currency Agreement” means any foreign exchange contract, currency swap agreement, futures
contract, option contract, synthetic cap or other similar agreement or arrangement, each of which
is for the purpose of hedging the foreign currency risk associated with Holdings’ and its
Subsidiaries’ operations and not for speculative purposes.



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



          “Default Excess” means, with respect to any Defaulting Lender, the excess, if any, of such
Defaulting Lender’s Pro Rata Share of the aggregate outstanding principal amount of Loans of all
Lenders (calculated as if all Defaulting Lenders (other than such Defaulting



10









 







Lender) had funded all of their respective Defaulted Loans) over the aggregate outstanding
principal amount of all Loans of such Defaulting Lender.



          “Default Period” means, with respect to any Defaulting Lender, the period commencing on the
date of the applicable Funding Default and ending on the earliest of the following dates: (i) the
date on which all Commitments are cancelled or terminated and/or the Obligations are declared or
become immediately due and payable, (ii) the date on which (a) the Default Excess with respect to
such Defaulting Lender shall have been reduced to zero (whether by the funding by such Defaulting
Lender of any Defaulted Loans of such Defaulting Lender or by the non-pro rata application of any
voluntary or mandatory prepayments of the Loans in accordance with the terms of Section 2.13 or
Section 2.14 or by a combination thereof) and (b) such Defaulting Lender shall have delivered to
Company and Administrative Agent a written reaffirmation of its intention to honor its obligations
hereunder with respect to its Commitments, and (iii) the date on which Company, Administrative
Agent and Requisite Lenders waive all Funding Defaults of such Defaulting Lender in writing.



          “Defaulted Loan” as defined in Section 2.22.



          “Defaulting Lender” as defined in Section 2.22.



          “Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings
and loan association, credit union or like organization, other than an account evidenced by a
negotiable certificate of deposit.



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



          “Domestic Subsidiary” means any Subsidiary organized under the laws of the United States of
America, any State thereof or the District of Columbia.



          “Earn-Out Obligation” means, collectively, the Existing Earn-Out Obligations and any
Additional Earn-Out Obligations.



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



          “Effective Date Certificate” means the Effective Date Certificate substantially in the form of
Exhibit G.



          “Eligible Assignee” means (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 as one of its businesses; provided, no Affiliate of Holdings
or Sponsor shall be an Eligible Assignee.



11









 





          “Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA
which is or was sponsored, maintained or contributed to by, or required to be contributed by,
Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates.



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



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



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



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



          “ERISA Event” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and
the regulations issued thereunder with respect to any Pension Plan (excluding those for which the
provision for 30-day notice to the PBGC has been waived by regulation); (ii) the failure to meet
the minimum funding standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(d) of the Internal Revenue Code)
or the failure to make by its due date a required installment under Section 412(m) of the Internal
Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan pursuant to
Section 4041(a)(2) of ERISA of a notice of



12









 







intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA;
(iv) the withdrawal by Holdings, any of its Subsidiaries or any of their respective ERISA
Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any
such Pension Plan resulting in liability to Holdings, any of its Subsidiaries or any of their
respective Affiliates pursuant to Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of
proceedings to terminate any Pension Plan, or the occurrence of any event or condition which could
reasonably be expected to constitute grounds under ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan; (vi) the imposition of liability on Holdings, any of
its Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of
ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the withdrawal of
Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates in a complete or
partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer
Plan if there is any potential liability therefore, or the receipt by Holdings, any of its
Subsidiaries or any of their respective ERISA Affiliates of notice from any Multiemployer Plan that
it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends
to terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) the occurrence of an
act or omission which could reasonable be expected to give rise to the imposition on Holdings, any
of its Subsidiaries or any of their respective ERISA Affiliates of fines, penalties, taxes or
related charges under Chapter 43 of the Internal Revenue Code or under Section 409, Section 502(c),
(i) or (l), or Section 4071 of ERISA in respect of any Employee Benefit Plan; (ix) the assertion of
a material claim (other than routine claims for benefits) against any Employee Benefit Plan other
than a Multiemployer Plan or the assets thereof, or against Holdings, any of its Subsidiaries or
any of their respective ERISA Affiliates in connection with any Employee Benefit Plan; (x) receipt
from the Internal Revenue Service of notice of the failure of any Pension Plan (or any other
Employee Benefit Plan intended to be qualified under Section 401(a) of the Internal Revenue Code)
to qualify under Section 401(a) of the Internal Revenue Code, or the failure of any trust forming
part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the
Internal Revenue Code; or (xi) the imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of
the Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan.



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



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



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



          “Existing Credit Agreement” as defined in the recitals hereto.



          “Existing Earn-Out Obligation” means the unsecured contingent liability of Company or ARC
Acquisition Corporation, as the case may be, owed to a seller as a portion of the purchase price
under, and as set forth in, the acquisition agreements which are identified on Schedule 1.1(a)
annexed hereto, as in effect on the Closing Date and as such agreements may



13









 







thereafter be amended, restated, supplemented or otherwise modified from time to time to the
extent permitted under Section 6.16.



          “Existing Lenders” as defined in the recitals hereto.



          “Existing Seller Subordinated Notes” means, collectively, the unsecured promissory notes
identified on Schedule 1.1(b) annexed hereto, which promissory notes were issued by Company to a
seller as a portion of the purchase price in connection with an acquisition consummated prior to
the Closing Date, as such notes are in effect on the Closing Date and as such promissory notes may
thereafter be amended, restated, supplemented or otherwise modified from time to time to the extent
permitted under Section 6.16.



          “Facility” means any real property (including all buildings, fixtures or other improvements
located thereon) now, hereafter or heretofore owned, leased, operated or used by Holdings or any of
its Subsidiaries or any of their respective predecessors or Affiliates.



          “Fair Share” as defined in Section 7.2.



          “Fair Share Contribution Amount” as defined in Section 7.2.



          “Federal Funds Effective Rate” means, for any day, a floating rate equal to the weighted
average of the rates on overnight federal funds transactions among members of the Federal Reserve
System, as determined by Administrative Agent in its sole discretion, which determination shall be
final, binding and conclusive (absent demonstrable error).



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



          “Financial Plan” as defined in Section 5.1(i).



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



          “Fiscal Year” means the fiscal year of Holdings and its Subsidiaries ending on December
31st of each calendar year.



          “Fixed Charge Coverage Ratio” means the ratio as of the last day of any Fiscal Quarter of (i)
Consolidated Adjusted EBITDAR for the four-Fiscal Quarter Period then ending minus the sum,
without duplication, of the amounts for such period of (a) cash payments made in respect of
Consolidated Capital Expenditures (net of any proceeds of any related financings with respect to
such expenditures), and (b) the provision for current taxes based on income of Company and its
Subsidiaries and payable in cash with respect to such period, and any Permitted Tax Distributions
payable in cash with respect to such period to (ii) Consolidated Fixed Charges for such four Fiscal
Quarter Period.



14









 





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



          “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.



          “Funding Default” as defined in Section 2.22.



          “Funding Guarantor” as defined in Section 7.2.



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



          “GAAP” means, subject to the limitations on the application thereof set forth in Section 1.2,
United States generally accepted accounting principles in effect as of the date of determination
thereof.



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



          “Governmental Authority” means any federal, state, municipal, national or other government,
governmental department, commission, board, bureau, court, agency or instrumentality or political
subdivision thereof 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.



          “Governmental Authorization” means any permit, license, authorization, plan, directive,
consent order or consent decree of or from any Governmental Authority.



          “Grantor” as defined in the Pledge and Security Agreement.



          “Guaranteed Obligations” as defined in Section 7.1.



          “Guarantor” means each of Holdings and each Domestic Subsidiary of Holdings (other than
Company).



          “Guarantor Subsidiary” means each Guarantor other than Holdings.



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



          “Hazardous Materials” means any chemical, material or substance, exposure to which is
prohibited, limited or regulated by any Governmental Authority or which may or could pose a hazard
to the health and safety of the owners, occupants or any Persons in the vicinity of any Facility or
to the indoor or outdoor environment.



          “Hazardous Materials Activity” means any past, current or proposed activity, event or
occurrence involving any Hazardous Materials, including the use, manufacture, possession, storage,
holding, presence, existence, location, Release, threatened Release,



15









 







discharge, placement, generation, transportation, processing, treatment, abatement, removal,
remediation, disposal, disposition or handling of any Hazardous Materials, and any corrective
action or response action with respect to any of the foregoing.



          “Hedge Agreement” means an Interest Rate Agreement or a Currency Agreement entered into with a
Lender Counterparty in order to satisfy the requirements of this Agreement or otherwise in the
ordinary course of Holdings’ or any of its Subsidiaries’ businesses and not for speculative
purposes.



          “Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from
time to time may be contracted for, charged, or received under the laws applicable to any Lender
which are presently in effect or, to the extent allowed by law, under such applicable laws which
may hereafter be in effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.



          “Historical Financial Statements” means, as of the Closing Date, (i) the audited financial
statements of AR Holdings and its Subsidiaries, for the immediately preceding three (3) Fiscal
Years, consisting of balance sheets and the related consolidated statements of income, members’
equity and cash flows for such Fiscal Years, and (ii) the unaudited financial statements of AR
Holdings and its Subsidiaries as at the most recently ended Fiscal Quarter and month, consisting of
a balance sheet and the related consolidated statements of income, members’ equity and cash flows
for the three-, six-or nine-month period, as applicable, ending on such date, and, in the case of
clauses (i) and (ii), certified by the chief financial officer of Company that they fairly present,
in all material respects, the financial condition of AR Holdings and its Subsidiaries as at the
dates indicated and the results of their operations and their cash flows for the periods indicated,
subject to changes resulting from audit and normal year-end adjustments.



          “Holdings” shall mean American Reprographics Company, a Delaware corporation.



          “Holdings Operating Agreement” means the Amended and Restated Operating Agreement of AR
Holdings dated as of April 10, 2000, as amended through the Closing Date and as such agreement may
be further amended, restated, supplemented or otherwise modified from time to time to the extent
permitted under Section 6.15.



          “Increased Amount Date” as defined in Section 2.24.



          “Increased-Cost Lender” as defined in Section 2.23.



          “Indebtedness”, as applied to any Person, means, without duplication, (i) all indebtedness for
borrowed money; (ii) that portion of obligations with respect to Capital Leases that is properly
classified as a liability on a balance sheet in conformity with GAAP; (iii) notes payable and
drafts accepted representing extensions of credit whether or not representing obligations for
borrowed money; (iv) any obligation owed for all or any part of the deferred purchase price of
property or services (excluding any such obligations incurred under ERISA and ordinary course trade
payables), which purchase price is (a) due more than six months from the date of incurrence of the
obligation in respect thereof or (b) evidenced by a note or similar written instrument; (v) all
indebtedness secured by any Lien on any property or asset owned or



16









 







held by that Person regardless of whether the indebtedness secured thereby shall have been
assumed by that Person or is nonrecourse to the credit of that Person; (vi) the face amount of any
letter of credit issued for the account of that Person or as to which that Person is otherwise
liable for reimbursement of drawings; (vii) the direct or indirect guaranty, endorsement (otherwise
than for collection or deposit in the ordinary course of business), co-making, discounting with
recourse or sale with recourse by such Person of the obligation of another; (viii) any obligation
of such Person the primary purpose or intent of which is to provide assurance to an obligee that
the obligation of the obligor thereof will be paid or discharged, or any agreement relating thereto
will be complied with, or the holders thereof will be protected (in whole or in part) against loss
in respect thereof (excluding ordinary course trade payables); (ix) any liability of such Person
for an obligation of another through any agreement (contingent or otherwise) (a) to purchase,
repurchase or otherwise acquire such obligation or any security therefor, or to provide funds for
the payment or discharge of such obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise) or (b) to maintain the solvency or any balance sheet
item, level of income or financial condition of another if, in the case of any agreement described
under subclauses (a) or (b) of this clause (ix), the primary purpose or intent thereof is as
described in clause (viii) above; and (x) all obligations of such Person in respect of any exchange
traded or over the counter derivative transaction, including, without limitation, any Interest Rate
Agreement and Currency Agreement, whether entered into for hedging or speculative purposes;
provided, in no event shall obligations under any Interest Rate Agreement and any Currency
Agreement be deemed “Indebtedness” for any purpose under Section 6.8.



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



          “Indemnitee” as defined in Section 10.3.



17









 





          “Index Rate” means, for any day, a floating rate equal to the higher of (i) the rate publicly
quoted from time to time by The Wall Street Journal as the “base rate on corporate loans
posted by at least 75% of the nation’s 30 largest banks” (or, if The Wall Street Journal
ceases quoting a base rate of the type described, the highest per annum rate of interest published
by the Federal Reserve Board in Federal Reserve statistical release H.15 (519) entitled “Selected
Interest Rates” as the Bank prime loan rate or its equivalent), and (ii) the Federal Funds
Effective Rate plus 50 basis points per annum. Each change in any interest rate provided for in
the Agreement based upon the Index Rate shall take effect at the time of such change in the Index
Rate.



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



          “Initial Public Offering” means the initial public offering of Capital Stock of Holdings in an
aggregate minimum amount of net proceeds to Holdings of $70,000,000.



          “Installment” as defined in Section 2.12(a).



          “Interest Coverage Ratio” means the ratio as of the last day of any Fiscal Quarter of (i)
Consolidated Adjusted EBITDAR for the four-Fiscal Quarter Period then ended, to (ii) the sum of the
amounts for such period of (a) Consolidated Cash Interest Expense and (b) Consolidated Rental
Payments.



          “Interest Payment Date” means with respect to (i) any Index Rate Loan, each March 31, June 30,
September 30 and December 31 of each year, commencing on the first such date to occur after the
Effective Date and the final maturity date of such Loan; and (ii) any Eurodollar Rate Loan, the
last day of each Interest Period applicable to such Loan; provided, in the case of each
Interest Period of longer than three months “Interest Payment Date” shall also include each date
that is three months, or an integral multiple thereof, after the commencement of such Interest
Period.



          “Interest Period” means, with respect to any Eurodollar Rate Loan, each period commencing on a
LIBOR Business Day selected by Company pursuant to the Agreement and ending one, two, three, six
or, with the consent of each affected Lender, twelve months thereafter, as selected by Company in
the applicable Funding Notice; provided, that the foregoing provision relating to Interest
Periods is subject to the following:




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




     (b) any Interest Period that would otherwise extend beyond the date set forth in clause
(i) of the definition of “Revolving Commitment Termination Date” shall end two (2) LIBOR
Business Days prior to such date;



18









 






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




     (d) Company shall select Interest Periods so as not to require a payment or prepayment
of any Eurodollar Rate Loan during an Interest Period for such Loan;




     (e) Company shall select Interest Periods so that there shall be no more than 8
separate Eurodollar Rate Loans in existence at any one time; and




     (f) no Interest Period may be selected for any portion of the Term Loans if an Installment for
such Term Loan is payable during such Interest Period and the portion of such Term Loan which
constitutes an Index Rate Loan does not equal or exceed the amount of such Installment.



          “Interest Rate Agreement” means any interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, interest rate hedging agreement or other similar agreement or
arrangement, each of which is for the purpose of hedging the interest rate exposure associated with
Holdings’ and its Subsidiaries’ operations and not for speculative purposes.



          “Interest Rate Determination Date” means, with respect to any Interest Period, the date that
is two Business Days prior to the first day of such Interest Period.



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



          “Investment” means (i) any direct or indirect purchase or other acquisition by Holdings or any
of its Subsidiaries of, or of a beneficial interest in, any of the Securities of any other Person
(other than a Guarantor Subsidiary); (ii) any direct or indirect redemption, retirement, purchase
or other acquisition for value, by any Subsidiary of Holdings from any Person (other than Holdings
or any Guarantor Subsidiary), of any Capital Stock of such Person; and (iii) any direct or indirect
loan, advance (other than advances to employees for moving, entertainment and travel expenses,
drawing accounts and similar expenditures in the ordinary course of business) or capital
contribution by Holdings or any of its Subsidiaries to any other Person (other than Holdings or
any Guarantor Subsidiary), including all indebtedness and accounts receivable from that other
Person that are not current assets or did not arise from sales to that other Person in the ordinary
course of business. The amount of any Investment shall be the original cost of such Investment plus
the cost of all additions thereto, without any adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such Investment.



          “Investor Notes” means, collectively, any unsecured promissory notes issued by AR Holdings to
ARC Acquisition Co., L.L.C., in accordance with Section 6.1(c) of the Holdings Operating Agreement,
which notes are expressly subordinated and made junior to the payment and performance in full of
all the Obligations, each of which shall be substantially in the form of Exhibit B to the Holdings
Operating Agreement, as such notes may be amended, restated,



19









 







supplemented or otherwise modified from time to time to the extent permitted under Section
6.16.



          “Investor Note Tax Benefit Amount” means with respect to the applicable period with respect to
which a Permitted Tax Distribution is determined, the excess, if any, of (i) the amount that such
Permitted Tax Distribution would be for such period had there never been any Investor Notes
outstanding at any time over (ii) the actual Permitted Tax Distribution for such period.



          “Investor Registration Rights Agreement” means the Investor Registration Rights Agreement,
dated April 10, 2000 by and among AR Holdings, ARC Acquisition Co., L.L.C., GS Mezzanine Partners
II, L.P., and GS Mezzanine Partners II Offshore, L.P. and certain other parties signatory thereto
as in effect on the Closing Date and as such agreement may thereafter be amended, restated,
supplemented or otherwise modified from time to time to the extent permitted under Section 6.15.



          “Investor Unitholders Agreement” means the Investor Unitholders Agreement dated April 10, 2000
by and among AR Holdings, ARC Acquisition Co., L.L.C., GS Mezzanine Partners II, L.P., and GS
Mezzanine Partners II Offshore, L.P. as in effect on the Closing Date and as such agreement may
thereafter be amended, restated, supplemented or otherwise modified from time to time to the extent
permitted under Section 6.15.



          “Issuance Notice” means an Issuance Notice substantially in the form of Exhibit A-3.



          “Issuing Bank” means GECC as Issuing Bank hereunder, together with its permitted successors
and assigns in such capacity.



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



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



          “Landlord Consent and Estoppel” means, with respect to any Leasehold Property, a letter,
certificate or other instrument in writing from the lessor under the related lease, pursuant to
which, among other things, the landlord consents to the granting of a Mortgage on such Leasehold
Property by the Credit Party tenant, such Landlord Consent and Estoppel to be in form and substance
acceptable to Collateral Agent in its reasonable discretion, but in any event sufficient for
Collateral Agent to obtain a Title Policy with respect to such Mortgage.



          “Landlord Personal Property Collateral Access Agreement” means a Landlord Waiver and Consent
Agreement substantially in the form of Exhibit K with such amendments or modifications as may be
approved by Collateral Agent.



          “Lead Arranger” as defined in the preamble hereto.



20









 





          “Leasehold Property” means any leasehold interest of any Credit Party as lessee under any
lease of real property, other than any such leasehold interest designated from time to time by
Collateral Agent in its sole discretion as not being required to be included in the Collateral.



          “Lender” means each financial institution listed on the signature pages hereto as a Lender,
and any other Person that becomes a party hereto pursuant to an Assignment Agreement or a Joinder
Agreement.



          “Lender Counterparty” means each Lender or any Affiliate of a Lender counterparty to a Hedge
Agreement (including any Person who is a Lender (and any Affiliate thereof) as of the Closing Date,
but subsequently, whether before or after entering into a Hedge Agreement, ceases to be a Lender)
including, without limitation, each such Affiliate that enters into a joinder agreement with
Collateral Agent.



          “Letter of Credit” means a commercial or standby letter of credit issued or to be issued by
Issuing Bank pursuant to this Agreement.



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



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



          “Leverage Ratio” means the ratio as of the last day of any Fiscal Quarter of (i) Consolidated
Total Debt as of such day to (ii) Consolidated Adjusted EBITDA for the four-Fiscal Quarter period
ending on such date.



          “LIBOR Business Day” means a Business Day on which banks in the City of London are generally
open for interbank or foreign exchange transactions.



          “Lien” means (i) any lien, mortgage, pledge, assignment, security interest, charge or
encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale
or other title retention agreement, and any lease in the nature thereof) and any option, trust or
other preferential arrangement having the practical effect of any of the foregoing and (ii) in the
case of Securities, any purchase option, call or similar right of a third party with respect to
such Securities.



          “Loan” means a Tranche C Term Loan, a Revolving Loan, a Swing Line Loan and a New Term Loan.



          “Margin Stock” as defined in Regulation U of the Board of Governors of the Federal Reserve
System, as in effect from time to time.



21









 





          “Material Adverse Effect” means a material adverse effect on (i) the business, operations,
properties, assets, condition (financial or otherwise) or prospects of Holdings and its
Subsidiaries taken as a whole; (ii) the ability of any Credit Party to fully and timely perform its
Obligations; (iii) the legality, validity, binding effect or enforceability against a Credit Party
of a Credit Document to which it is a party; or (iv) the rights, remedies and benefits available
to, or conferred upon, any Agent and any Lender or any Secured Party under any Credit Document.



          “Material Contract” means any contract or other arrangement to which Holdings or any of its
Subsidiaries is a party (other than the Credit Documents) for which breach, nonperformance,
cancellation or failure to renew could reasonably be expected to have a Material Adverse Effect.



          “Material Real Estate Asset’’ means (i) (a) any fee-owned Real Estate Asset having a fair
market value in excess of $500,000 as of the date of the acquisition thereof and (b) all Leasehold
Properties other than those with respect to which the aggregate payments under the term of the
lease are less than $250,000 per annum or (ii) any Real Estate Asset that the Requisite Lenders
have determined is material to the business, operations, properties, assets, condition (financial
or otherwise) or prospects of Holdings or any Subsidiary thereof, including Company.



          “Moody’s” means Moody’s Investor Services, Inc.



          “Mortgage” means a Mortgage substantially in the form of Exhibit J or an amendment and
restatement of any Mortgage previously delivered to Collateral Agent for the benefit of the Secured
Parties on the Closing Date, as each may be amended, supplemented or otherwise modified from time
to time.



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



          “NAIC” means The National Association of Insurance Commissioners, and any successor thereto.



          “Narrative Report” means, with respect to the financial statements for which such narrative
report is required, a narrative report describing the operations of Holdings and its Subsidiaries
in the form prepared for presentation to senior management thereof for the applicable month, Fiscal
Quarter or Fiscal Year and for the period from the beginning of the then current Fiscal Year to the
end of such period to which such financial statements relate.



          “Net Asset Sale Proceeds” means, with respect to any Asset Sale, an amount equal to: (i) Cash
payments (including any Cash received by way of deferred payment pursuant to, or by monetization
of, a note receivable or otherwise, but only as and when so received) received by Holdings or any
of its Subsidiaries from such Asset Sale, minus (ii) any bona fide direct costs incurred in
connection with such Asset Sale, including (a) income or gains taxes payable by the seller as a
result of any gain recognized in connection with such Asset Sale, (b) payment of the outstanding
principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than the
Loans) that is secured by a Lien on the stock or assets in question and that is required to be
repaid under the terms thereof as a result of such Asset Sale and (c) a



22









 







reasonable reserve for any indemnification payments (fixed or contingent) attributable to
seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale
undertaken by Holdings or any of its Subsidiaries in connection with such Asset Sale.



          “Net Insurance/Condemnation Proceeds” means an amount equal to: (i) any Cash payments or
proceeds received by Holdings or any of its Subsidiaries (a) under any casualty insurance policy in
respect of a covered loss thereunder or (b) as a result of the taking of any assets of Holdings or
any of its Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or
otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of
such a taking, minus (ii) (a) any actual and reasonable costs incurred by Holdings or any
of its Subsidiaries in connection with the adjustment or settlement of any claims of Holdings or
such Subsidiary in respect thereof, and (b) any bona fide direct costs incurred in connection with
any sale of such assets as referred to in clause (i)(b) of this definition, including income taxes
payable as a result of any gain recognized in connection therewith.



          “New Term Loan Commitments” as defined in Section 2.24.



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



          “New Term Loan Lender” as defined in Section 2.24.



          “New Term Loans” as defined in Section 2.24.



          “Non-Consenting Lender” as defined in Section 2.23.



          “Non-US Lender” as defined in Section 2.20(c).



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



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



          “Obligations” means all obligations of every nature of each Credit Party from time to time
owed to the Agents (including former Agents), the Lenders or any of them (and Lender
Counterparties), under any Credit Document or Hedge Agreement, whether for principal, interest
(including interest which, but for the filing of a petition in bankruptcy with respect to such
Credit Party, would have accrued on any Obligation, whether or not a claim is allowed against such
Credit Party for such interest in the related bankruptcy proceeding), reimbursement of amounts
drawn under Letters of Credit, payments for early termination of Hedge Agreements, fees, expenses,
indemnification or otherwise.



          “Obligee Guarantor” as defined in Section 7.7.



          “Offer” as defined in Section 2.13(c).



23









 





          “Offer Loans” as defined in Section 2.13(c).



          “Organizational Documents” means (i) with respect to any corporation, its certificate or
articles of incorporation or organization, as amended, and its by-laws, as amended, (ii) with
respect to any limited partnership, its certificate of limited partnership, as amended, and its
partnership agreement, as amended, (iii) with respect to any general partnership, its partnership
agreement, as amended, and (iv) with respect to any limited liability company, its articles of
organization, as amended, and its operating agreement, as amended. In the event any term or
condition of this Agreement or any other Credit Document requires any Organizational Document to be
certified by a secretary of state or similar governmental official, the reference to any such
“Organizational Document” shall only be to a document of a type customarily certified by such
governmental official.



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



          “Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is
subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA.



          “Permitted Acquisition” means any acquisition by Company or any of its wholly-owned
Subsidiaries, whether by purchase, merger or otherwise, of all or substantially all of the assets
of, all of the Capital Stock of, or a business line or unit or a division of, any Person;
provided,




               (i) immediately prior to, and after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing or would result therefrom;




               (ii) all transactions in connection therewith shall be consummated, in all material
respects, in accordance with all applicable laws and in conformity with all applicable
Governmental Authorizations;




               (iii) in the case of the acquisition of Capital Stock, all of the Capital Stock (except
for any such Securities in the nature of directors’ qualifying shares required pursuant to
applicable law) acquired or otherwise issued by such Person or any newly formed Subsidiary
of Company in connection with such acquisition shall be owned 100% by Company or a Guarantor
Subsidiary thereof, and Company shall have taken, or caused to be taken, as of the date such
Person becomes a Subsidiary of Company, each of the actions set forth in Sections 5.10
and/or 5.11, as applicable;




               (iv) if the consideration to be delivered in connection with the proposed acquisition
includes any deferred consideration payable to any seller, such as payment under a seller
note, Additional Earn-Out Obligations, or extraordinary payments under consulting,
employment or lease agreements with such seller or its Affiliates, such deferred
consideration shall in all cases be expressly subordinated to payment of the Obligations
pursuant to an Additional Seller Subordinated Note or a subordination agreement
substantially in the form of Exhibit L (or an agreement containing substantially similar
terms, in each case with such modifications thereto as may be



24









 






consented to by Administrative Agent), as the case may be, except as otherwise provided
in this Agreement;




               (v) Holdings and its Subsidiaries shall be in compliance with the financial covenants
set forth in Section 6.8 on a pro forma basis after giving effect to such acquisition as of
the last day of the Fiscal Quarter most recently ended, (as determined in accordance with
Section 6.8(f));




               (vi) Company shall have delivered to Administrative Agent at least 10 Business Days
prior to such proposed acquisition, (y) a Compliance Certificate evidencing compliance with
Section 6.8 as required under clause (v) above, together with all relevant financial
information with respect to such acquired assets, including, without limitation, the
aggregate consideration for such acquisition and any other information required to
demonstrate compliance with Section 6.8 and (z) copies of the definitive documentation
relating to such proposed acquisition; and




               (vii) any Person or assets or division as acquired in accordance herewith (y) shall be
in same business or lines of business in which Company and/or its Subsidiaries are permitted
to be engaged pursuant to Section 6.13 and (z) shall have generated positive Consolidated
Adjusted EBITDA (after allowing for pro forma adjustments as may be permitted in Section
6.8(f)) for the most recently completed four-Fiscal Quarter period prior to the date of such
acquisition.



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



          “Permitted Sale-Leasebacks” as defined in Section 6.11.



          “Permitted Tax Distributions” means with respect to each (a) Fiscal Quarter of AR Holdings or
other non-annual taxable period for which taxes are payable by the holders of AR Holdings’ Capital
Stock, cash distributions made to any of the holders of AR Holdings’ Capital Stock, made at
approximately the same time at which federal income tax installments with respect to income for
such Fiscal Quarter or other taxable period are payable, in an amount sufficient to pay such
holder’s estimated federal, state and local income taxes on such holder’s respective share of the
taxable income of AR Holdings for such fiscal quarter or other taxable period, and (b) Fiscal Year
of AR Holdings, cash distributions made to any of the holders of AR Holdings’ Capital Stock, made
after the end of such Fiscal Year and prior to the date one hundred (100) days after the end of
such Fiscal Year, in an amount sufficient to pay such holder’s federal, state and local income
taxes on such holder’s respective share of the taxable income of AR Holdings for such fiscal year,
provided that (i) any cash distribution made under clause (b) with respect to a Fiscal Year for
which quarterly distributions were made as provided in clause (a) shall be reduced by an amount
equal to the sum of such quarterly distributions, and (ii) in the case of each of clauses (a) and
(b) above distributions shall be made only to the extent such income exceeds the cumulative losses
of AR Holdings allocated for tax purposes to its members in the aggregate for prior Fiscal Years
that have not been utilized to reduce taxable income in prior Fiscal Years and that are available
for use in the current Fiscal Year. Permitted Tax Distributions shall be made assuming the holders
of AR Holdings’ Capital Stock are subject to the higher of (x) federal, New York state, and New
York City income taxes at the highest



25









 







marginal rate, and (y) federal, California state, and any local income taxes to which any of
the holders is subject at the highest marginal rate, taking into account any reduction in any one
such tax referred to in either clause (x) or (y) on account of amounts paid or owing with respect
to any other of such taxes.



          “Person” means and includes natural persons, corporations, limited partnerships, general
partnerships, limited liability companies, limited liability partnerships, joint stock companies,
Joint Ventures, associations, companies, trusts, banks, trust companies, land trusts, business
trusts or other organizations, whether or not legal entities, and Governmental Authorities.



          “Phase I Report’’ means, with respect to any Facility, a report that (i) conforms to the ASTM
Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment, E
1527-00 and (ii) was conducted no more than six months prior to the date such report is required to
be delivered hereunder, by one or more environmental consulting firms reasonably satisfactory to
Administrative Agent.



          “Pledge and Security Agreement” means the Pledge and Security Agreement to be executed by
Company and each Guarantor substantially in the form of Exhibit I, as it may be amended,
supplemented or otherwise modified from time to time.



          “Principal Office” means, for each of Administrative Agent, Swing Line Lender and Issuing
Bank, such Person’s “Principal Office” as set forth on Appendix B, or such other office as such
Person may from time to time designate in writing to Company, Administrative Agent and each
Lender.



          “Projections” as defined in Section 4.8.



          “Pro Rata Share” means (i) with respect to all payments, computations and other matters
relating to the Tranche C Term Loan of any Lender, the percentage obtained by dividing (a) the
Tranche C Term Loan Exposure of that Lender by (b) the aggregate Tranche C Term Loan Exposure of
all Lenders; (ii) with respect to all payments, computations and other matters relating to the
Revolving Commitment or Revolving Loans of any Lender or any Letters of Credit issued or
participations purchased therein by any Lender or any participations in any Swing Line Loans
purchased by any Lender, the percentage obtained by dividing (a) the Revolving Exposure of that
Lender by (b) the aggregate Revolving Exposure of all Lenders and (iii) with respect to all
payments, computations, and other matters relating to New Term Loan Commitments or New Term Loans,
the percentage obtained by dividing (a) the New Term Loan Exposure of that Lender by (b) the
aggregate New Term Loan Exposure of all Lenders. For all other purposes with respect to each
Lender, “Pro Rata Share” means the percentage obtained by dividing (A) an amount equal to the sum
of the Tranche C Term Loan Exposure, the Revolving Exposure and the New Term Loan Exposure of that
Lender, by (B) an amount equal to the sum of the aggregate Tranche C Term Loan Exposure, the
aggregate Revolving Exposure and the aggregate New Term Loan Exposure of all Lenders.



          “Real Estate Asset” means, at any time of determination, any interest (fee, leasehold or
otherwise) then owned by any Credit Party in any real property.



26









 





          “Record Document” means, with respect to any Leasehold Property, (i) the lease evidencing such
Leasehold Property or a memorandum thereof, executed and acknowledged by the owner of the affected
real property, as lessor, or (ii) if such Leasehold Property was acquired or subleased from the
holder of a Recorded Leasehold Interest, the applicable assignment or sublease document, executed
and acknowledged by such holder, in each case in form sufficient to give such constructive notice
upon recordation and otherwise in form reasonably satisfactory to Collateral Agent.



          “Recorded Leasehold Interest” means a Leasehold Property with respect to which a Record
Document has been recorded in all places necessary or desirable, in Administrative Agent’s
reasonable judgment, to give constructive notice of such Leasehold Property to third-party
purchasers and encumbrances of the affected real property.



          “Refunded Swing Line Loans” as defined in Section 2.3(b)(iv).



          “Register” as defined in Section 2.7(b).



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



          “Reimbursement Date” as defined in Section 2.4(d).



          “Related Agreements” means, collectively, the Holdings Operating Agreement, the Investor
Notes, the Company Operating Agreement, the Investor Unitholders Agreement, the Investor
Registration Rights Agreement and any other document pursuant to which any other Subordinated
Indebtedness is issued or otherwise incurred.



          “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.



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



          “Replacement Lender” as defined in Section 2.23.



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



          “Requisite Lenders” means one or more Lenders having or holding Tranche C Term Loan Exposure,
New Term Loan Exposure and/or Revolving Exposure and representing



27









 







more than 50% of the sum of (i) the aggregate Tranche C Term Loan Exposure of all Lenders,
(ii) the aggregate Revolving Exposure of all Lenders, and (iii) the aggregate New Term Loan
Exposure of all Lenders.



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



          “Restructuring” means the restructuring and consolidation of certain Subsidiaries of Holdings
other than Company as further described on Schedule 1.1(c) annexed hereto.



          “Revolving Commitment” means the commitment of a Lender to make or otherwise fund any
Revolving Loan and to acquire participations in Letters of Credit and Swing Line Loans hereunder
and “Revolving Commitments” means such commitments of all Lenders in the aggregate. The amount of
each Lender’s Revolving Commitment, if any, shall be equal to such Lender’s Revolving Commitment on
the day immediately prior to the Effective Date. The aggregate amount of the Revolving Commitments
as of the Closing Date is $30,000,000.



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



          “Revolving Commitment Termination Date” means the earliest to occur of (i) December 18, 2008,
(ii) the date the Revolving Commitments are permanently reduced to zero pursuant to Section 2.13(b)
or 2.14, and (iii) the date of the termination of the Revolving Commitments pursuant to Section
8.1.



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



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          “Revolving Loan” means a Loan made by a Lender to Company pursuant to Section 2.2(a) and/or
2.22.



          “Revolving Loan Note” means a promissory note in the form of Exhibit B-2, as it may be
amended, supplemented or otherwise modified from time to time.



          “S&P” means Standard & Poor’s Ratings Group, a division of The McGraw Hill Corporation.



          “Sale-Leaseback” as defined in Section 6.11.



          “Second Lien Credit Agreement” means the Second Lien Credit Agreement dated as of the Closing
Date among the Company as borrower, Holdings, certain subsidiaries of the Company, GSCP as
administrative agent and collateral agent and the lenders party thereto.



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



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



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



          “Seller Subordinated Notes” means, collectively, the Existing Seller Subordinated Notes and
any Additional Seller Subordinated Notes.



          “Senior Note Indentures” means each of (i) that certain Indenture dated as of April 10, 2000
by and among Company, the Subsidiaries of Company party thereto, and Wilmington Trust Company, as
trustee and (ii) that certain Indenture dated as of April 10, 2000 by and among AR Holdings and
Wilmington Trust Company, as trustee, in each case as such indentures may have been amended,
restated, supplemented or otherwise modified from time to time.



          “Solvent” means, with respect to any Credit Party, that as of the date of determination, both
(i) (a) the sum of such Credit Party’s debt (including contingent liabilities) does not exceed the
present fair saleable value of such Credit Party’s present assets; (b) such Credit Party’s capital
is not unreasonably small in relation to its business or any transaction contemplated or undertaken
after the Closing Date; and (c) such Person has not incurred and does not intend to incur, or
believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay such
debts as they become due (whether at maturity or otherwise); and (ii) such Person is “solvent”
within the meaning given that term and similar terms under applicable laws relating to fraudulent
transfers and conveyances. For purposes of this definition,



29









 







the amount of any contingent liability at any time shall be computed as the amount that, in
light of all of the facts and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability (irrespective of whether such
contingent liabilities meet the criteria for accrual under Statement of Financial Accounting
Standard No.5).



          “Sponsor” means Code Hennessy & Simmons IV, L.P..



          “Subject Transaction” as defined in Section 6.8(f).



          “Subordinated Indebtedness” means (i) Indebtedness of Company or any of its Subsidiaries under
any Seller Subordinated Notes and under any Earn-Out Obligations, (ii) Indebtedness of Holdings
under any Investor Notes, and (iii) other Indebtedness of Holdings or any of its Subsidiaries
subordinated in right of payment to the Obligations pursuant to documentation containing
maturities, amortization schedules, covenants, defaults, remedies, subordination provisions and
other material terms in form and substance satisfactory to Administrative Agent and Requisite
Lenders.



          “Subsidiary” means, with respect to any Person, any corporation, partnership, limited
liability company, association, joint venture or other business entity of which more than 50% of
the total voting power of shares of stock or other ownership interests entitled (without regard to
the occurrence of any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions) having the power to
direct or cause the direction of the management and policies thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof; provided, in determining the percentage of ownership
interests of any Person controlled by another Person, no ownership interest in the nature of a
“qualifying share” of the former Person shall be deemed to be outstanding.



          “Swing Line Lender” means GECC in its capacity as Swing Line Lender hereunder, together with
its permitted successors and assigns in such capacity.



          “Swing Line Loan” means a Loan made by Swing Line Lender to Company pursuant to Section 2.3.



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



          “Swing Line Sublimit” means the lesser of (i) $5,000,000, and (ii) the aggregate unused amount
of Revolving Commitments then in effect.



          “Syndication Agent” as defined in the preamble hereto.



          “Tax” means any present or future tax, levy, impost, duty, assessment, charge, fee, deduction
or withholding of any nature and whatever called, by whomsoever, on whomsoever and wherever
imposed, levied, collected, withheld or assessed; provided, “Tax on the overall net income”
of a Person shall be construed as a reference to a tax imposed by the jurisdiction in which that
Person is organized or in which that Person’s applicable principal office



30









 







(and/or, in the case of a Lender, its lending office) is located or in which that Person
(and/or, in the case of a Lender, its lending office) is deemed to be doing business on all or part
of the net income, profits or gains (whether worldwide, or only insofar as such income, profits or
gains are considered to arise in or to relate to a particular jurisdiction, or otherwise) of that
Person (and/or, in the case of a Lender, its applicable lending office).



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



          “Term Loan Commitment” means the commitment of a Lender to make or otherwise fund a Tranche C
Term Loan or a New Term Loan Commitment and “Term Loan Commitments” means such commitments of all
Lenders in the aggregate.



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



          “Term Loan Maturity Date” means the Tranche C Term Loan Maturity Date.



          “Term Loan Note” means a Tranche C Term Loan Note or a New Term Loan Note.



          “Terminated Lender” as defined in Section 2.23.



          “Title Policy” as defined in Section 3.1(i).



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



          “Tranche C Term Loan” means a Tranche C Term Loan affirmed by a Lender to Company pursuant to
Section 2.1(a).



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



          “Tranche C Term Loan Maturity Date” means the earlier of (i) June 18, 2009, and (ii) the date
that all Term Loans shall become due and payable in full hereunder, whether by acceleration or
otherwise.



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



          “Transaction Costs” means the fees, costs and expenses payable by Holdings, Company or any of
Company’s Subsidiaries on or before the Effective Date in connection with the transactions
contemplated by the Credit Documents.




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




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




     1.2. Accounting Terms. Except as otherwise expressly provided herein, all accounting terms
not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP.
Financial statements and other information required to be delivered by Holdings to Lenders pursuant
to Section 5.1(a), 5.1(b) and 5.1(c) shall be prepared in accordance with GAAP as in effect at the
time of such preparation (and delivered together with the reconciliation statements provided for in
Section 5.1(e), if applicable). Subject to the foregoing, calculations in connection with the
definitions, covenants and other provisions hereof shall utilize accounting principles and policies
in conformity with those used to prepare the Historical Financial Statements.



     1.3. Interpretation, etc. Any of the terms defined herein may, unless the context otherwise
requires, be used in the singular or the plural, depending on the reference. References herein to
any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an
Exhibit, as the case may be, hereof unless otherwise specifically provided. The use herein of the
word “include” or “including”, when following any general statement, term or matter, shall not be
construed to limit such statement, term or matter to the specific items or matters set forth
immediately following such word or to similar items or matters, whether or not no limiting language
(such as “without limitation” or “but not limited to” or words of similar import) is used with
reference thereto, but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter.



SECTION 2. LOANS AND LETTERS OF CREDIT




     2.1. Term Loans.



          (a) Loan Commitments.





               (i) Subject to the terms and conditions hereof, (y) each of the Continuing Lenders
affirms that the Tranche C Term Loans made by such Lender under the Existing Credit
Agreement shall remain outstanding on and after the Effective Date, and (z) each Lender
agrees that the New Term Loans made pursuant to this Agreement shall on and after the
Effective Date have all of the rights and benefits of Tranche C Term Loans as set forth in
this Agreement and the other Credit Documents.




               (ii) Any amount that has been borrowed under this Section 2.1(a) and subsequently
repaid or prepaid may not be reborrowed. Subject to Section 2.13(a) and 2.14, all amounts
owed hereunder with respect to Tranche C Term Loans shall be paid in full no later than the
Tranche C Term Loan Maturity Date.



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          (b) Borrowing Mechanics for New Term Loans. Company shall deliver to Administrative
Agent a fully executed Effective Date Certificate no later than one (1) day prior to the Effective
Date.




     2.2. Revolving Loans.



          (a) Revolving Commitments. During the Revolving Commitment Period, subject to the
terms and conditions hereof, each Lender severally agrees to make Revolving Loans to Company in an
aggregate amount up to but not exceeding such Lender’s Revolving Commitment; provided, that
after giving effect to the making of any Revolving Loans, in no event shall the Total Utilization
of Revolving Commitments exceed the Revolving Commitments then in effect. Amounts borrowed
pursuant to this Section 2.2(a) may be repaid and reborrowed during the Revolving Commitment
Period. Each Lender’s Revolving Commitment shall expire on the Revolving Commitment Termination
Date and all Revolving Loans and all other amounts owed hereunder with respect to the Revolving
Loans and the Revolving Commitments shall be paid in full no later than such date.




          (b) Borrowing Mechanics for Revolving Loans.





               (i) Except pursuant to Section 2.4(d), Revolving Loans that are Index Rate Loans shall
be made in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in
excess of that amount, and Revolving Loans that are Eurodollar Rate Loans shall be in an
aggregate minimum amount of $1,000,000 and integral multiples of $250,000 in excess of that
amount.




               (ii) Whenever Company desires that Lenders make Revolving Loans, Company shall deliver
to Administrative Agent a fully executed Funding Notice no later than 10:00 a.m. (New York
City time) at least three Business Days in advance of the proposed Credit Date in the case
of a Eurodollar Rate Loan, and at least one Business Day in advance of the proposed Credit
Date in the case of a Revolving Loan that is an Index Rate Loan. Except as otherwise
provided herein, a Funding Notice for a Revolving Loan that is a Eurodollar Rate Loan shall
be irrevocable on and after the related Interest Rate Determination Date, and Company shall
be bound to make a borrowing in accordance therewith.




               (iii) Notice of receipt of each Funding Notice in respect of Revolving Loans, together
with the amount of each Lender’s Pro Rata Share thereof, if any, together with the
applicable interest rate, shall be provided by Administrative Agent to each applicable
Lender by telefacsimile with reasonable promptness.




               (iv) Each Lender shall make the amount of its Revolving Loan available to
Administrative Agent not later than 12:00 p.m. (New York City time) on the applicable Credit
Date by wire transfer of same day funds in Dollars, at Administrative Agent’s Principal
Office. Except as provided herein, upon satisfaction or waiver of the conditions precedent
specified herein, Administrative Agent shall make the proceeds of such Revolving Loans
available to Company on the applicable Credit Date by causing an amount of same day funds in
Dollars equal to the proceeds of all such Revolving Loans



33









 






received by Administrative Agent
from Lenders to be credited to the account of Company at Administrative Agent’s Principal
Office or such other account as may be designated in writing to Administrative Agent by
Company.



     2.3. Swing Line Loans.



          (a) Swing Line Loans Commitments. During the Revolving Commitment Period, subject to
the terms and conditions hereof, Swing Line Lender hereby agrees to make Swing Line Loans to
Company in the aggregate amount up to but not exceeding the Swing Line Sublimit; provided,
that after giving effect to the making of any Swing Line Loan, in no event shall the Total
Utilization of Revolving Commitments exceed the Revolving Commitments then in effect. Amounts
borrowed pursuant to this Section 2.3 may be repaid and reborrowed during the Revolving Commitment
Period. Swing Line Lender’s Revolving Commitment shall expire on the Revolving Commitment
Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the
Swing Line Loans and the Revolving Commitments shall be paid in full no later than such date.




          (b) Borrowing Mechanics for Swing Line Loans.





               (i) Swing Line Loans shall be made in an aggregate minimum amount of $50,000 and
integral multiples of $25,000 in excess of that amount.




               (ii) Whenever Company desires that Swing Line Lender make a Swing Line Loan, Company
shall deliver to Administrative Agent a Funding Notice no later than 12:00 p.m. (New York
City time) on the proposed Credit Date.




               (iii) Swing Line Lender shall make the amount of its Swing Line Loan available to
Administrative Agent not later than 2:00 p.m. (New York City time) on the applicable Credit
Date by wire transfer of same day funds in Dollars, at Administrative Agent’s Principal
Office. Except as provided herein, upon satisfaction or waiver of the conditions precedent
specified herein, Administrative Agent shall make the proceeds of such Swing Line Loans
available to Company on the applicable Credit Date by causing an amount of same day funds in
Dollars equal to the proceeds of all such Swing Line Loans received by Administrative Agent
from Swing Line Lender to be credited to the account of Company at Administrative Agent’s
Principal Office, or to such other account as may be designated in writing to Administrative
Agent by Company.




               (iv) With respect to any Swing Line Loans which have not been voluntarily prepaid by
Company pursuant to Section 2.13, Swing Line Lender may, at
any time, in its sole and absolute discretion, deliver to Administrative Agent (with a
copy to Company), no later than 11:00 a.m. (New York City time) at least one Business Day in
advance of the proposed Credit Date, a notice (which shall be deemed to be a Funding Notice
given by Company) requesting that each Lender holding a Revolving Commitment make Revolving
Loans that are Index Rate Loans to Company on such Credit Date in an amount equal to the
amount of such Swing Line Loans (the “Refunded Swing Line
Loans”) outstanding on the date
such notice is given which Swing Line Lender requests Lenders to prepay. Anything contained
in this Agreement to the contrary



34









 







notwithstanding, (1) the proceeds of such Revolving Loans
made by the Lenders other than Swing Line Lender shall be immediately delivered by
Administrative Agent to Swing Line Lender (and not to Company) and applied to repay a
corresponding portion of the Refunded Swing Line Loans and (2) on the day such Revolving
Loans are made, Swing Line Lender’s Pro Rata Share of the Refunded Swing Line Loans shall be
deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender to
Company, and such portion of the Swing Line Loans deemed to be so paid shall no longer be
outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note of
Swing Line Lender but shall instead constitute part of Swing Line Lender’s outstanding
Revolving Loans to Company and shall be due under the Revolving Loan Note issued by Company
to Swing Line Lender. Company hereby authorizes Administrative Agent and Swing Line Lender
to charge Company’s accounts with Administrative Agent and Swing Line Lender (up to the
amount available in each such account) in order to immediately pay Swing Line Lender the
amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans
made by Lenders, including the Revolving Loans deemed to be made by Swing Line Lender, are
not sufficient to repay in full the Refunded Swing Line Loans. If any portion of any such
amount paid (or deemed to be paid) to Swing Line Lender should be recovered by or on behalf
of Company from Swing Line Lender in bankruptcy, by assignment for the benefit of creditors
or otherwise, the loss of the amount so recovered shall be ratably shared among all Lenders
in the manner contemplated by Section 2.17.




               (v) If for any reason Revolving Loans are not made pursuant to Section 2.3(b)(iv) in an
amount sufficient to repay any amounts owed to Swing Line Lender in respect of any
outstanding Swing Line Loans on or before the third Business Day after demand for payment
thereof by Swing Line Lender, each Lender holding a Revolving Commitment shall be deemed to,
and hereby agrees to, have purchased a participation in such outstanding Swing Line Loans in
an amount equal to its Pro Rata Share of the applicable unpaid amount together with accrued
interest thereon. Upon one Business Day’s notice from Swing Line Lender, each Lender
holding a Revolving Commitment shall deliver to Swing Line Lender an amount equal to its
respective participation in the applicable unpaid amount in same day funds at the Principal
Office of Swing Line Lender. In order to evidence such participation, each Lender holding a
Revolving Commitment agrees to enter into a participation agreement at the request of Swing
Line Lender in form and substance reasonably satisfactory to Swing Line Lender. In the
event any Lender holding a Revolving Commitment fails to make available to Swing Line Lender
the amount of such Lender’s participation as provided in this paragraph, Swing Line Lender
shall be entitled to recover such amount on demand from such Lender together with interest
thereon for three Business Days at the rate customarily used by
Swing Line Lender for the correction of errors among banks and thereafter at the Index
Rate.




               (vi) Notwithstanding anything contained herein to the contrary, (1) each Lender’s
obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans
pursuant to the second preceding paragraph and each Lender’s obligation to purchase a
participation in any unpaid Swing Line Loans pursuant to the immediately preceding paragraph
shall be absolute and unconditional and shall not be



35









 







affected by any circumstance, including
without limitation (A) any set-off, counterclaim, recoupment, defense or other right which
such Lender may have against Swing Line Lender, any Credit Party or any other Person for any
reason whatsoever; (B) the occurrence or continuation of a Default or Event of Default; (C)
any adverse change in the business, operations, properties, assets, condition (financial or
otherwise) or prospects of any Credit Party; (D) any breach of this Agreement or any other
Credit Document by any party thereto; or (E) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing; provided that such
obligations of each Lender are subject to the condition that Swing Line Lender believed in
good faith that all conditions under Section 3.2 to the making of the applicable Refunded
Swing Line Loans or other unpaid Swing Line Loans, were satisfied at the time such Refunded
Swing Line Loans or unpaid Swing Line Loans were made, or the satisfaction of any such
condition not satisfied had been waived by the Requisite Lenders prior to or at the time
such Refunded Swing Line Loans or other unpaid Swing Line Loans were made; and (2) Swing
Line Lender shall not be obligated to make any Swing Line Loans (A) if it has elected not to
do so after the occurrence and during the continuation of a Default or Event of Default or
(B) at a time when a Funding Default exists unless Swing Line Lender has entered into
arrangements satisfactory to it and Company to eliminate Swing Line Lender’s risk with
respect to the Defaulting Lender’s participation in such Swing Ling Loan, including by cash
collateralizing such Defaulting Lender’s Pro Rata Share of the outstanding Swing Line Loans.



     2.4. Issuance of Letters of Credit and Purchase of Participations Therein.



          (a) Letters of Credit. During the Revolving Commitment Period, subject to the terms
and conditions hereof, Issuing Bank agrees to issue Letters of Credit for the account of Company
in the aggregate amount up to but not exceeding the Letter of Credit Sublimit; provided,
(i) each Letter of Credit shall be denominated in Dollars; (ii) the stated amount of each Letter of
Credit shall be an amount acceptable to Issuing Bank; (iii) after giving effect to such issuance,
in no event shall the Total Utilization of Revolving Commitments exceed the Revolving Commitments
then in effect; (iv) after giving effect to such issuance, in no event shall the Letter of Credit
Usage exceed the Letter of Credit Sublimit then in effect; (v) in no event shall any standby Letter
of Credit have an expiration date later than the earlier of (1) the thirtieth (30th) day
prior to the date set forth in clause (ii) of the definition of “Revolving Commitment Termination
Date” and (2) the date which is one year from the date of issuance of such standby Letter of
Credit; and (vi) in no event shall any commercial Letter of Credit (x) have an expiration date
later than the earlier of (1) the thirtieth (30th) day prior to the date set forth in
clause (ii) of the definition of “Revolving Commitment Termination Date” and (2) the date which is 180 days
from the date of issuance of such commercial Letter of Credit or (y) be issued if such commercial
Letter of Credit is otherwise unacceptable to Issuing Bank in its reasonable discretion. Subject
to the foregoing, Issuing Bank may agree that a standby Letter of Credit will automatically be
extended for one or more successive periods not to exceed one year each, unless Issuing Bank elects
not to extend for any such additional period; provided, Issuing Bank shall not extend any
such Letter of Credit if it has received written notice that an Event of Default has occurred and
is continuing at the time Issuing Bank must elect to allow such extension; provided,
further, in the event a Funding Default exists, Issuing Bank shall not be required to issue
any Letter of Credit unless Issuing Bank has entered into arrangements satisfactory to it and

36









 








Company to eliminate Issuing Bank’s risk with respect to the participation in Letters of Credit of
the Defaulting Lender, including by cash collateralizing such Defaulting Lender’s Pro Rata Share of
the Letter of Credit Usage.




          (b) Notice of Issuance. Whenever Company desires the issuance of a Letter of Credit,
it shall deliver to Administrative Agent an Issuance Notice no later than 12:00 p.m. (New York City
time) at least three Business Days (in the case of standby letters of credit) or five Business Days
(in the case of commercial letters of credit), or in each case such shorter period as may be agreed
to by Issuing Bank in any particular instance, in advance of the proposed date of issuance. Each
such Issuance Notice shall be accompanied by the form of the Letter of Credit and an application
for a Letter of Credit, if any, then required by the Issuing Bank, completed in a manner
satisfactory to such Issuing Bank. Upon satisfaction or waiver of the conditions set forth in
Section 3.2, Issuing Bank shall issue the requested Letter of Credit only in accordance with
Issuing Bank’s standard operating procedures. Upon the issuance of any Letter of Credit or
amendment or modification to a Letter of Credit, Issuing Bank shall promptly notify each Lender of
such issuance, which notice shall be accompanied by a copy of such Letter of Credit or amendment or
modification to a Letter of Credit and the amount of such Lender’s respective participation in such
Letter of Credit pursuant to Section 2.4(e).




          (c) Responsibility of Issuing Bank With Respect to Requests for Drawings and Payments.
In determining whether to honor any drawing under any Letter of Credit by the beneficiary thereof,
Issuing Bank shall be responsible only to examine the documents delivered under such Letter of
Credit with reasonable care so as to ascertain whether they appear on their face to be in
accordance with the terms and conditions of such Letter of Credit. As between Company and Issuing
Bank, Company assumes all risks of the acts and omissions of, or misuse of the Letters of Credit
issued by Issuing Bank, by the respective beneficiaries of such Letters of Credit. In furtherance
and not in limitation of the foregoing, Issuing Bank shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party
in connection with the application for and issuance of any such Letter of Credit, even if it should
in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii)
failure of the beneficiary of any such Letter of Credit to comply fully with any conditions
required in order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher; (v) errors in interpretation of technical
terms; (vi) any loss or delay in the transmission or otherwise of any document required in
order to make a drawing under any such Letter of Credit or of the proceeds thereof; (vii) the
misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under
such Letter of Credit; or (viii) any consequences arising from causes beyond the control of Issuing
Bank, including any Governmental Acts; none of the above shall affect or impair, or prevent the
vesting of, any of Issuing Bank’s rights or powers hereunder. Without limiting the foregoing and
in furtherance thereof, any action taken or omitted by Issuing Bank under or in connection with the
Letters of Credit or any documents and certificates delivered thereunder, if taken or omitted in
good faith, shall not give rise to any liability on the part of Issuing Bank to Company.
Notwithstanding anything to the contrary contained in this Section 2.4(c), Company


37









 







           shall retain any
and all rights it may have against Issuing Bank for any liability arising solely out of the gross
negligence or willful misconduct of Issuing Bank.




          (d) Reimbursement by Company of Amounts Drawn or Paid Under Letters of Credit. In the
event Issuing Bank has determined to honor a drawing under a Letter of Credit, it shall immediately
notify Company and Administrative Agent, and Company shall reimburse Issuing Bank on or before the
Business Day immediately following the date on which such drawing is honored (the “Reimbursement
Date”) in an amount in Dollars and in same day funds equal to the amount of such honored drawing;
provided, anything contained herein to the contrary notwithstanding, (i) unless Company
shall have notified Administrative Agent and Issuing Bank prior to 10:00 a.m. (New York City time)
on the date such drawing is honored that Company intends to reimburse Issuing Bank for the amount
of such honored drawing with funds other than the proceeds of Revolving Loans, Company shall be
deemed to have given a timely Funding Notice to Administrative Agent requesting Lenders to make
Revolving Loans that are Index Rate Loans on the Reimbursement Date in an amount in Dollars equal
to the amount of such honored drawing, and (ii) subject to satisfaction or waiver of the conditions
specified in Section 3.2, Lenders shall, on the Reimbursement Date, make Revolving Loans that are
Index Rate Loans in the amount of such honored drawing, the proceeds of which shall be applied
directly by Administrative Agent to reimburse Issuing Bank for the amount of such honored drawing;
and provided, further, if for any reason proceeds of Revolving Loans are not
received by Issuing Bank on the Reimbursement Date in an amount equal to the amount of such honored
drawing, Company shall reimburse Issuing Bank, on demand, in an amount in same day funds equal to
the excess of the amount of such honored drawing over the aggregate amount of such Revolving Loans,
if any, which are so received. Nothing in this Section 2.4(d) shall be deemed to relieve any
Lender from its obligation to make Revolving Loans on the terms and conditions set forth herein,
and Company shall retain any and all rights it may have against any Lender resulting from the
failure of such Lender to make such Revolving Loans under this Section 2.4(d).




          (e) Lenders’ Purchase of Participations in Letters of Credit. Immediately upon the
issuance of each Letter of Credit, each Lender having a Revolving Commitment shall be deemed to
have purchased, and hereby agrees to irrevocably purchase, from Issuing Bank a participation in
such Letter of Credit and any drawings honored thereunder in an amount equal to such Lender’s Pro
Rata Share (with respect to the Revolving Commitments) of the maximum amount which is or at any
time may become available to be drawn thereunder. In the event that Company shall fail for any
reason to reimburse Issuing Bank as provided in Section 2.4(d), Issuing Bank shall promptly notify
each Lender of the unreimbursed amount of such honored
drawing and of such Lender’s respective participation therein based on such Lender’s Pro Rata
Share of the Revolving Commitments. Each Lender shall make available to Issuing Bank an amount
equal to its respective participation, in Dollars and in same day funds, at the office of Issuing
Bank specified in such notice, not later than 12:00 p.m. (New York City time) on the first business
day (under the laws of the jurisdiction in which such office of Issuing Bank is located) after the
date notified by Issuing Bank. In the event that any Lender fails to make available to Issuing
Bank on such business day the amount of such Lender’s participation in such Letter of Credit as
provided in this Section 2.4(e), Issuing Bank shall be entitled to recover such amount on demand
from such Lender together with interest thereon for three Business Days at the rate customarily
used by Issuing Bank for the correction of errors among banks and thereafter at the


38









 







Index Rate.
Nothing in this Section 2.4(e) shall be deemed to prejudice the right of any Lender to recover from
Issuing Bank any amounts made available by such Lender to Issuing Bank pursuant to this Section in
the event that it is determined that the payment with respect to a Letter of Credit in respect of
which payment was made by such Lender constituted gross negligence or willful misconduct on the
part of Issuing Bank. In the event Issuing Bank shall have been reimbursed by other Lenders
pursuant to this Section 2.4(e) for all or any portion of any drawing honored by Issuing Bank under
a Letter of Credit, such Issuing Bank shall distribute to each Lender which has paid all amounts
payable by it under this Section 2.4(e) with respect to such honored drawing such Lender’s Pro Rata
Share of all payments subsequently received by Issuing Bank from Company in reimbursement of such
honored drawing when such payments are received. Any such distribution shall be made to a Lender
at its primary address set forth below its name on Appendix B or at such other address as such
Lender may request.




          (f) Obligations Absolute. The obligation of Company to reimburse Issuing Bank for
drawings honored under the Letters of Credit issued by it and to repay any Revolving Loans made by
Lenders pursuant to Section 2.4(d) and the obligations of Lenders under Section 2.4(e) shall be
unconditional and irrevocable and shall be paid strictly in accordance with the terms hereof under
all circumstances including any of the following circumstances: (i) any lack of validity or
enforceability of any Letter of Credit; (ii) the existence of any claim, set-off, defense or other
right which Company or any Lender may have at any time against a beneficiary or any transferee of
any Letter of Credit (or any Persons for whom any such transferee may be acting), Issuing Bank,
Lender or any other Person or, in the case of a Lender, against Company, whether in connection
herewith, the transactions contemplated herein or any unrelated transaction (including any
underlying transaction between Company or one of its Subsidiaries and the beneficiary for which any
Letter of Credit was procured); (iii) any draft or other document presented under any Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; (iv) payment by Issuing Bank under any Letter of
Credit against presentation of a draft or other document which does not substantially comply with
the terms of such Letter of Credit; (v) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Holdings or any of its Subsidiaries;
(vi) any breach hereof or any other Credit Document by any party thereto; (vii) any other
circumstance or happening whatsoever, whether or not similar to any of the foregoing; or (viii) the
fact that an Event of Default or a Default shall have occurred and be continuing; provided,
in each case, that payment by Issuing Bank under the applicable Letter of Credit shall not have
constituted gross negligence or willful misconduct of Issuing Bank under the circumstances in
question.




          (g) Indemnification. Without duplication of any obligation of Company under Section
10.2 or 10.3, in addition to amounts payable as provided herein, Company hereby agrees to protect,
indemnify, pay and save harmless Issuing Bank from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable fees, expenses and
disbursements of counsel and allocated costs of internal counsel) which Issuing Bank may incur or
be subject to as a consequence, direct or indirect, of (i) the issuance of any Letter of Credit by
Issuing Bank, other than as a result of (1) the gross negligence or willful misconduct of Issuing
Bank or (2) the wrongful dishonor by Issuing Bank of a proper demand for payment made under any
Letter of Credit issued by it, or (ii) the failure of Issuing Bank to honor a drawing under any
such Letter of Credit as a result of any Governmental Act.




39









 








     2.5. Pro Rata Shares; Availability of Funds.



          (a) Pro Rata Shares. All Loans shall be made, and all participations purchased, by
Lenders simultaneously and proportionately to their respective Pro Rata Shares, it being understood
that no Lender shall be responsible for any default by any other Lender in such other Lender’s
obligation to make a Loan requested hereunder or purchase a participation required hereby nor shall
any Term Loan Commitment or any Revolving Commitment of any Lender be increased or decreased as a
result of a default by any other Lender in such other Lender’s obligation to make a Loan requested
hereunder or purchase a participation required hereby.




          (b) Availability of Funds. Unless Administrative Agent shall have been notified by
any Lender prior to the applicable Credit Date that such Lender does not intend to make available
to Administrative Agent the amount of such Lender’s Loan requested on such Credit Date,
Administrative Agent may assume that such Lender has made such amount available to Administrative
Agent on such Credit Date and Administrative Agent may, in its sole discretion, but shall not be
obligated to, make available to Company a corresponding amount on such Credit Date. If such
corresponding amount is not in fact made available to Administrative Agent by such Lender,
Administrative Agent shall be entitled to recover such corresponding amount on demand from such
Lender together with interest thereon, for each day from such Credit Date until the date such
amount is paid to Administrative Agent, at the customary rate set by Administrative Agent for the
correction of errors among banks for three Business Days and thereafter at the Index Rate. If such
Lender does not pay such corresponding amount forthwith upon Administrative Agent’s demand
therefore, Administrative Agent shall promptly notify Company and Company shall immediately pay
such corresponding amount to Administrative Agent together with interest thereon, for each day from
such Credit Date until the date such amount is paid to Administrative Agent, at the rate payable
hereunder for Index Rate Loans for such Class of Loans. Nothing in this Section 2.5(b) shall be
deemed to relieve any Lender from its obligation to fulfill its Term Loan Commitments and Revolving
Commitments hereunder or to prejudice any rights that Company may have against any Lender as a
result of any default by such Lender hereunder.




     2.6. Use of Proceeds. The proceeds of the Revolving Loans, Swing Line Loans, Letters of Credit and New Term Loans
shall be applied by Company for payment of all principal and interest in respect of the
Indebtedness incurred under the Second Lien Credit Agreement, working capital, Permitted
Acquisitions and general corporate purposes of Holdings and its Subsidiaries; provided,
however, that in no event will the proceeds of Revolving Loans or New Term Loans be used
for the purposes of repurchasing Loans as permitted under Section 2.13(c) hereof. No portion of
the proceeds of any Credit Extension shall be used in any manner to purchase or carry any Margin
Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or
for any purpose that causes or might cause such Credit Extension or the application of such
proceeds to violate Regulation T, Regulation U or Regulation X of the Board of Governors of the
Federal Reserve System or any other regulation thereof or to violate the Exchange Act.



     2.7. Evidence of Debt; Register; Lenders’ Books and Records; Notes.



40









 





          (a) Lenders’ Evidence of Debt. Each Lender shall maintain on its internal records an
account or accounts evidencing the Obligations of Company to such Lender, including the amounts of
the Loans made by it and each repayment and prepayment in respect thereof. Any such recordation
shall be conclusive and binding on Company, absent demonstrable error; provided, that the
failure to make any such recordation, or any error in such recordation, shall not affect any
Lender’s Revolving Commitments or Company’s Obligations in respect of any applicable Loans; and
provided further, in the event of any inconsistency between the Register and any
Lender’s records, the recordation in the Register shall govern.




          (b) Register. Administrative Agent shall maintain at its Principal Office a register
for the recordation of the names and addresses of Lenders and the Revolving Commitments and Loans
of each Lender from time to time (the “Register”). The Register shall be available for inspection
by Company or any Lender at any reasonable time and from time to time upon reasonable prior notice.
Administrative Agent shall record in the Register the Revolving Commitments and the Loans, and
each repayment or prepayment in respect of the principal amount of the Loans, and any such
recordation shall be conclusive and binding on Company and each Lender, absent demonstrable error;
provided, failure to make any such recordation, or any error in such recordation, shall not
affect any Lender’s Revolving Commitments or Company’s Obligations in respect of any Loan. Company
hereby designates GECC to serve as Company’s agent solely for purposes of maintaining the Register
as provided in this Section 2.7, and Company hereby agrees that, to the extent GECC serves in such
capacity, GECC and its officers, directors, employees, agents and affiliates shall constitute
“Indemnitees.” Administrative Agent shall render to Company a monthly accounting of transactions
with respect to the Loans setting forth the balance of the Loans for the immediately preceding
month. Unless Company notifies Administrative Agent in writing of any objection to any such
accounting (specifically describing the basis for such objection) within thirty (30) days
thereafter, each and every such accounting shall, absent demonstrable error, be deemed final,
binding and conclusive on Company in all respects as to all matters reflected therein.




          (c) Notes. If so requested by any Lender by written notice to Company (with a copy to
Administrative Agent) at least two Business Days prior to the Effective Date, or at any
time thereafter, Company shall execute and deliver to such Lender (and/or, if applicable and
if so specified in such notice, to any Person who is an assignee of such Lender pursuant to Section
10.6) on the Effective Date (or, if such notice is delivered after the Effective Date, promptly
after Company’s receipt of such notice) a Note or Notes to evidence such Lender’s Tranche C Term
Loan, Revolving Loan, Swing Line Loan or New Term Loan, as the case may be.




     2.8. Interest on Loans.



          (a) Except as otherwise set forth herein, each Class of Loan shall bear interest on the unpaid
principal amount thereof from the date made through repayment (whether by acceleration or
otherwise) thereof as follows:





               (i) in the case of Revolving Loans:




                    (1) if an Index Rate Loan, at the Index Rate plus the
Applicable Margin; or



41









 






                    (2) if a Eurodollar Rate Loan, at the Adjusted Eurodollar Rate
plus the Applicable Margin;




               (ii) in the case of Swing Line Loans, at the Index Rate plus the Applicable Margin; and




               (iii) in the case of Term Loans:




                    (1) if an Index Rate Loan, at the Index Rate plus 0.75%
per annum; or




                    (2) if a Eurodollar Rate Loan, at the Adjusted Eurodollar Rate
plus 1.75% per annum.



          (b) The basis for determining the rate of interest with respect to any Loan (except a Swing
Line Loan which can be made and maintained as Index Rate Loans only), and the Interest Period with
respect to any Eurodollar Rate Loan, shall be selected by Company and notified to Administrative
Agent and Lenders pursuant to the applicable Funding Notice or Conversion/Continuation Notice, as
the case may be; provided, until the date that Syndication Agent notifies Company that the
primary syndication of the Loans and Revolving Commitments has been completed, as determined by
Syndication Agent, the Term Loans shall be maintained as either (1) Eurodollar Rate Loans having an
Interest Period of no longer than one month or (2) Index Rate Loans. If on any day a Loan is
outstanding with respect to which a Funding Notice or Conversion/Continuation Notice has not been
delivered to Administrative Agent in accordance with the terms hereof specifying the applicable
basis for determining the rate of interest, then for that day such Loan shall be an Index Rate
Loan.




          (c) In connection with Eurodollar Rate Loans there shall be no more than eight (8) Interest
Periods outstanding at any time. In the event Company fails to specify between an
Index Rate Loan or a Eurodollar Rate Loan in the applicable Funding Notice or
Conversion/Continuation Notice, such Loan (if outstanding as a Eurodollar Rate Loan) will be
automatically converted into an Index Rate Loan on the last day of the then-current Interest Period
for such Loan (or if outstanding as an Index Rate Loan will remain as, or (if not then outstanding)
will be made as, an Index Rate Loan). In the event Company fails to specify an Interest Period for
any Eurodollar Rate Loan in the applicable Funding Notice or Conversion/Continuation Notice,
Company shall be deemed to have selected an Interest Period of one month. As soon as practicable
after 10:00 a.m. (New York City time) on each Interest Rate Determination Date, Administrative
Agent shall determine (which determination shall, absent demonstrable error, be final, conclusive
and binding upon all parties) the interest rate that shall apply to the Eurodollar Rate Loans for
which an interest rate is then being determined for the applicable Interest Period and shall
promptly give notice thereof (in writing or by telephone confirmed in writing) to Company and each
Lender.




          (d) Interest payable pursuant to Section 2.8(a) shall be computed on the basis of a 360-day
year, in each case for the actual number of days elapsed in the period during which it accrues. In
computing interest on any Loan, the date of the making of such Loan or the first day of an Interest
Period applicable to such Loan or, with respect to an Index Rate Loan being

42









 








converted from a
Eurodollar Rate Loan, the date of conversion of such Eurodollar Rate Loan to such Index Rate Loan,
as the case may be, shall be included, and the date of payment of such Loan or the expiration date
of an Interest Period applicable to such Loan or, with respect to an Index Rate Loan being
converted to a Eurodollar Rate Loan, the date of conversion of such Index Rate Loan to such
Eurodollar Rate Loan, as the case may be, shall be excluded; provided, if a Loan is repaid
on the same day on which it is made, one day’s interest shall be paid on that Loan.




          (e) Except as otherwise set forth herein, interest on each Loan shall be payable in arrears on
and to (i) each Interest Payment Date applicable to that Loan; (ii) upon any prepayment of that
Loan, whether voluntary or mandatory, to the extent accrued on the amount being prepaid; and (iii)
at maturity, including final maturity; provided, however, with respect to any voluntary
prepayment of an Index Rate Loan, accrued interest shall instead be payable on the applicable
Interest Payment Date; provided, further, that prior to the funding of any New Term
Loans on the Effective Date, accrued interest on each Tranche C Term Loan shall be payable pursuant
to Section 3.1(k) and Company shall set forth in the Funding Notice with respect to the New Term
Loans the Interest Period with respect to all Term Loans.




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




          (g) Interest payable pursuant to Section 2.8(f) shall be computed on the basis of a 360-day
year, in each case for the actual number of days elapsed in the period during which it
accrues, and shall be payable on demand or, if no demand is made, on the date on which the
related drawing under a Letter of Credit is reimbursed in full. Promptly upon receipt by Issuing
Bank of any payment of interest pursuant to Section 2.8(f), Issuing Bank shall distribute to each
Lender, out of the interest received by Issuing Bank in respect of the period from the date such
drawing is honored to but excluding the date on which Issuing Bank is reimbursed for the amount of
such drawing (including any such reimbursement out of the proceeds of any Revolving Loans), the
amount that such Lender would have been entitled to receive in respect of the letter of credit fee
that would have been payable in respect of such Letter of Credit for such period if no drawing had
been honored under such Letter of Credit. In the event Issuing Bank shall have been reimbursed by
Lenders for all or any portion of such honored drawing, Issuing Bank shall distribute to each
Lender which has paid all amounts payable by it under Section 2.4(e) with respect to such honored
drawing such Lender’s Pro Rata Share of any interest received by Issuing Bank in respect of that
portion of such honored drawing so reimbursed by Lenders for the period from the date on which
Issuing Bank was so reimbursed by Lenders to but excluding the date on which such portion of such
honored drawing is reimbursed by Company.




     2.9. Conversion/Continuation.



43









 





          (a) Subject to Section 2.18 and so long as no Default or Event of Default shall have occurred
and then be continuing, Company shall have the option:





               (i) to convert at any time all or any part of any Term Loan or Revolving Loan equal to
$1,000,000 and integral multiples of $250,000 in excess of that amount from one Type of Loan
to another Type of Loan; provided, a Eurodollar Rate Loan may only be converted on
the expiration of the Interest Period applicable to such Eurodollar Rate Loan unless Company
shall pay all amounts due under Section 2.18 in connection with any such conversion; or




               (ii) upon the expiration of any Interest Period applicable to any Eurodollar Rate Loan,
to continue all or any portion of such Loan equal to $1,000,000 and integral multiples of
$250,000 in excess of that amount as a Eurodollar Rate Loan.



          (b) Company shall deliver a Conversion/Continuation Notice to Administrative Agent no later
than 10:00 a.m. (New York City time) at least one Business Day in advance of the proposed
conversion date (in the case of a conversion to an Index Rate Loan) and at least three Business
Days in advance of the proposed conversion/continuation date (in the case of a conversion to, or a
continuation of, a Eurodollar Rate Loan). Except as otherwise provided herein, a
Conversion/Continuation Notice for conversion to, or continuation of, any Eurodollar Rate Loans (or
telephonic notice in lieu thereof) shall be irrevocable on and after the related Interest Rate
Determination Date, and Company shall be bound to effect a conversion or continuation in accordance
therewith.




     2.10. Default Interest. Upon the occurrence and during the continuance of an Event of
Default, the principal amount of all Loans outstanding and, to the extent permitted by applicable
law, any interest
payments on the Loans or any fees or other amounts owed hereunder not paid when due, shall
thereafter bear interest (including post-petition interest in any proceeding under the Bankruptcy
Code or other applicable bankruptcy laws) payable on demand at a rate that is 2% per annum in
excess of the interest rate otherwise payable hereunder with respect to the applicable Loans (or,
in the case of any such fees and other amounts, at a rate which is 2% per annum in excess of the
interest rate otherwise payable hereunder for Index Rate Loans); provided, in the case of
Eurodollar Rate Loans, upon the expiration of the Interest Period in effect at the time any such
increase in interest rate is effective such Eurodollar Rate Loans shall thereupon become Index Rate
Loans and shall thereafter bear interest payable upon demand at a rate which is 2% per annum in
excess of the interest rate otherwise payable hereunder for Index Rate Loans. Payment or
acceptance of the increased rates of interest provided for in this Section 2.10 is not a permitted
alternative to timely payment and shall not constitute a waiver of any Event of Default or
otherwise prejudice or limit any rights or remedies of Administrative Agent or any Lender.



     2.11. Fees.



          (a) Company agrees to pay to Lenders having Revolving Exposure:





               (i) commitment fees equal to (1) the average of the daily difference between (a) the
Revolving Commitments, and (b) the sum of (x) the aggregate principal



44









 







amount of outstanding
Revolving Loans (but not any outstanding Swing Line Loans) plus (y) the Letter of Credit
Usage, times (2) 0.50%; and




               (ii) letter of credit fees equal to (1) the Applicable Margin for Revolving Loans that
are Eurodollar Rate Loans, times (2) the average aggregate daily maximum amount available to
be drawn under all such Letters of Credit (regardless of whether any conditions for drawing
could then be met and determined as of the close of business on any date of determination).


All fees referred to in this Section 2.11(a) shall be paid to Administrative Agent at its Principal
Office and upon receipt, Administrative Agent shall promptly distribute to each Lender its Pro Rata
Share thereof.




          (b) Company agrees to pay directly to Issuing Bank, for its own account, the following fees:





               (i) a fronting fee equal to 0.25%, per annum, times the average aggregate daily amount
available to be drawn under all Letters of Credit (determined as of the close of business on
any date of determination); and




               (ii) such documentary and processing charges for any issuance, amendment, transfer or
payment of a Letter of Credit as are in accordance with Issuing Bank’s standard schedule for
such charges and as in effect at the time of such issuance, amendment, transfer or payment,
as the case may be.



          (c) All fees referred to in Section 2.11(a) and 2.11(b)(i) shall be calculated on the basis of
a 360-day year and the actual number of days elapsed and shall be payable quarterly in arrears on
March 31, June 30, September 30 and December 31 of each year during the Revolving Commitment
Period, commencing on the first such date to occur after the Effective Date, and on the Revolving
Commitment Termination Date.




          (d) In addition to any of the foregoing fees, Company agrees to pay to Agents such other fees
in the amounts and at the times separately agreed upon.




     2.12. Scheduled Payments/Commitment Reductions.



          (a) Scheduled Installments. The principal amounts of the Tranche C Term Loans shall
be repaid in consecutive quarterly installments (each, an
“Installment”) in the aggregate amounts
set forth below on the last day of each Fiscal Quarter commencing December 31, 2005:




45









 






	 	 	 	 	 
	 	 	Term Loan	 
	Fiscal Quarter	 	Installments	 
	December 31, 2005
	 	$	182,765.00	 
	March 31, 2006
	 	$	182,765.00	 
	June 30, 2006
	 	$	182,765.00	 
	September 30, 2006
	 	$	182,765.00	 
	December 31, 2006
	 	$	182,765.00	 
	March 31, 2007
	 	$	182,765.00	 
	June 30, 2007
	 	$	182,765.00	 
	September 30, 2007
	 	$	182,765.00	 
	December 31, 2007
	 	$	182,765.00	 
	March 31, 2008
	 	$	182,765.00	 
	June 30, 2008
	 	$	182,765.00	 
	September 30, 2008
	 	$	17,773,927.50	 
	December 31, 2008
	 	$	17,773,927.50	 
	March 31, 2009
	 	$	17,773,927.50	 
	June 18, 2009
	 	$	17,773,927.50	 





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



Notwithstanding the foregoing, (x) such Installments shall be reduced in connection with any
voluntary or mandatory prepayments of the Term Loans, as the case may be, in accordance with
Sections 2.13, 2.14 and 2.15, as applicable; and (y) Term Loans, together with all other amounts
owed hereunder with respect thereto, shall, in any event, be paid in full no later than the Tranche
C Term Loan Maturity Date.




          (b) Scheduled Reductions. The Revolving Commitments shall be permanently reduced to
zero on the fifth anniversary of the Closing Date




     2.13. Voluntary Prepayments/Commitment Reductions.



          (a) Voluntary Prepayments.





               (i) Any time and from time to time:



46









 






                    (1) with respect to Index Rate Loans, Company may prepay,
without premium or penalty, any such Loans on any Business Day in
whole or in part, in an aggregate minimum amount of $500,000 and
integral multiples of $100,000 in excess of that amount;




                    (2) with respect to Eurodollar Rate Loans, Company may prepay,
without premium or penalty (except as may be required pursuant to
Section 2.18(c)), any such Loans on any Business Day in whole or in
part in an aggregate minimum amount of $1,000,000 and integral
multiples of $250,000 in excess of that amount; and




                    (3) with respect to Swing Line Loans, Company may prepay,
without premium or penalty, any such Loans on any Business Day in
whole or in part in an aggregate minimum amount of $50,000, and in
integral multiples of $25,000 in excess of that amount.




               (ii) All such prepayments shall be made:




                    (1) upon not less than one Business Day’s prior written or
telephonic notice in the case of Index Rate Loans;




                    (2) upon not less than three Business Days’ prior written or
telephonic notice in the case of Eurodollar Rate Loans; and




                    (3) upon written or telephonic notice on the date of
prepayment, in the case of Swing Line Loans;


in each case given to Administrative Agent or Swing Line Lender, as the case may be, by 12:00 p.m.
(New York City time) on the date required and, if given by telephone, promptly confirmed in writing
to Administrative Agent (and Administrative Agent will promptly transmit such telephonic or
original notice for Term Loans or Revolving Loans, as the case may be, by telefacsimile or
telephone to each Lender) or Swing Line Lender, as the case may be. Upon the giving of any such
notice, the principal amount of the Loans specified in such notice shall become due and payable on
the prepayment date specified therein. Any such voluntary prepayment shall be applied as specified
in Section 2.15(a).




          (b) Voluntary Commitment Reductions.





               (i) Company may, upon not less than three Business Days’ prior written or telephonic
notice confirmed in writing to Administrative Agent (which original written or telephonic
notice Administrative Agent will promptly transmit by telefacsimile or telephone to each
applicable Lender), at any time and from time to time terminate in whole or permanently
reduce in part, without premium or penalty, the Revolving Commitments in an amount up to the
amount by which the Revolving Commitments



47









 







exceed the Total Utilization of Revolving
Commitments at the time of such proposed termination or reduction; provided, any
such partial reduction of the Revolving Commitments shall be in an aggregate minimum amount
of $1,000,000 and integral multiples of $250,000 in excess of that amount.




               (ii) Company’s notice to Administrative Agent shall designate the date (which shall be
a Business Day) of such termination or reduction and the amount of any partial reduction,
and such termination or reduction of the Revolving Commitments shall be effective on the
date specified in Company’s notice and shall reduce the Revolving Commitment of each Lender
proportionately to its Pro Rata Share thereof.



          (c) Certain Permitted Term Loan Repurchases.




                         Notwithstanding anything to the contrary contained in this Section 2.13 or any other provision
of this Agreement, so long as (i) there is no Default, (ii) there is no Event of Default and (iii)
no Default or Event of Default would result therefrom, Company may repurchase outstanding Term
Loans on the following basis:




               (i) Company may repurchase all or any portion of the Term Loans of one or more Lenders
pursuant to an Assignment Agreement, between Company and such Lender or Lenders in an
aggregate principal amount not to exceed (y) 10% of the initial aggregate principal amount
of Term Loans with respect to all such repurchases pursuant to this clause (i) and (z)
$10,000,000 in any Fiscal Year; provided that, with respect to such repurchases,
Company shall simultaneously provide a copy of such Assignment
Agreement and any other agreements between Company and such Lender with respect to such
repurchase to Administrative Agent and Syndication Agent;




               (ii)
In addition, Company may make one or more offers (each, an
“Offer”) to repurchase
all or any portion of the Term Loans (such Term Loans, the “Offer Loans”) of Lenders,
provided, (A) Company delivers a notice of such Offer to Administrative Agent and
all Lenders no later than noon (New York City time) at least five Business Days in advance
of a proposed consummation date of such Offer indicating (1) the last date on which such
Offer may be accepted, (2) the maximum dollar amount of the Offer, (3) the repurchase price
per dollar of principal amount of such Offer Loans at which Company is willing to repurchase
the Offer Loans and (4) the instructions, consistent with this Section 2.13(c) with respect
to the Offer (which shall be reasonably acceptable to Company, Administrative Agent and the
Syndication Agent), that a Lender must follow in order to have its Offer Loans repurchased;
(B) the maximum dollar amount of the Offer shall be no less than an aggregate $1,000,000;
(C) Company shall hold the Offer open for a minimum period of two Business Days; (D) a
Lender who elects to participate in the Offer may choose to tender all or part of such
Lender’s Offer Loans; and (E) the Offer shall be made to Lenders holding the Offer Loans on
a pro rata basis in accordance with their Pro Rata Shares; provided, further
that, if any Lender elects not to participate in the Offer, either in whole or in part, the
amount of such Lender’s Offer Loans not being tendered shall be excluded in calculating the
pro rata amount applicable to the balance of such Offer Loans;



48









 







               (iii) With respect to all repurchases made by Company pursuant to this Section 2.13(c),
(A) Company shall pay all accrued and unpaid interest, if any, on the repurchased Term Loans
to the date of repurchase of such Term Loans (B) the repurchase of such Term Loans by
Company shall not be taken into account in the calculation of Consolidated Excess Cash Flow,
(C) Company shall have provided to all Lenders all information that, together with any
previously provided information, would satisfy the requirements of Rule 10b-5 of the
Exchange Act with respect to an offer by Company to repurchase securities registered under
the Securities Act of 1933 (whether or not such securities are outstanding) as if such offer
was being made as of the date of such repurchase of Term Loans from a Lender, (D) such
repurchases shall not be deemed to be voluntary prepayments pursuant to this Section 2.13,
Section 2.15 or 2.16 hereunder except that the amount of the Loans so repurchased shall be
applied on a pro rata basis to reduce the scheduled remaining Installments of principal on
such Term Loan and (E) immediately following consummation of any such repurchase, Company
shall provide notice of such repurchase to Administrative Agent which notice shall include
(1) the identity of each Lender party to such repurchase and the amount of each Term Loan
being repurchased, (2) the accrued interest thereon, (3) the date of repurchase and (4) any
other information Administrative Agent may reasonably request in connection with such
repurchase;




               (iv) Following repurchase by Company pursuant to this Section 2.13(c), the Term Loans
so repurchased shall be deemed cancelled for all purposes and no longer outstanding (and may
not be resold by Company), for all purposes of this Agreement and all other Credit
Documents, including, but not limited to (A) the making of, or the
application of, any payments to the Lenders under this Agreement or any other Credit
Document, (B) the making of any request, demand, authorization, direction, notice, consent
or waiver under this Agreement or any other Credit Document or (C) the determination of
Requisite Lenders, or for any similar or related purpose, under this Agreement or any other
Credit Document. Any payment made by Company in connection with a repurchase permitted by
this Section 2.13(c) shall not be subject to the provisions of either Section 2.16(a) or
Section 2.17. Failure by Company to make any payment to a Lender required by an agreement
permitted by this Section 2.13(c) shall not constitute an Event of Default under Section
8.1(a); and


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




     2.14. Mandatory Prepayments/Commitment Reductions.



          (a) Asset Sales. No later than three (3) Business Days following the date of receipt
by Holdings or any of its Subsidiaries of any Net Asset Sale Proceeds (excluding any Net Asset Sale
Proceeds received in connection with the sale or disposition of inventory or used equipment in the
ordinary course of business), Company shall prepay the Loans and/or the Revolving Commitments shall
be permanently reduced as set forth in Section 2.15(b) in an aggregate amount equal to such Net
Asset Sale Proceeds; provided, (i) so long as no Default or

49









 








Event of Default shall have
occurred and be continuing, and (ii) to the extent that aggregate Net Asset Sale Proceeds from the
Closing Date through the applicable date of determination do not exceed $5,000,000, Company shall
have the option, directly or through one or more of its Subsidiaries, to invest Net Asset Sale
Proceeds in long-term productive assets of the general type used in the business of Company and its
Subsidiaries that are reinvested or identified for reinvestment within one hundred eighty days of
receipt thereof and subsequently reinvested within two hundred seventy days of receipt thereof;
provided further, pending any such investment all such Net Asset Sale Proceeds
shall be applied to prepay Revolving Loans to the extent outstanding (without a reduction in
Revolving Commitments).




          (b) Insurance/Condemnation Proceeds. No later than three (3) Business Days following
the date of receipt by Holdings or any of its Subsidiaries, or Administrative Agent as loss payee,
of any Net Insurance/Condemnation Proceeds, Company shall prepay the Loans and/or the Revolving
Commitments shall be permanently reduced as set forth in Section 2.15(b) in an aggregate amount
equal to such Net Insurance/Condemnation Proceeds; provided, (i) so long as no Default or
Event of Default shall have occurred and be continuing, and (ii) to the extent that aggregate Net
Insurance/Condemnation Proceeds from the Closing Date through the applicable date of determination
do not exceed $5,000,000, Company shall have the option, directly or through one or more of its
Subsidiaries to invest such Net Insurance/Condemnation Proceeds in long-term productive assets of
the general type used in the business of Company and its Subsidiaries that are reinvested or
identified for reinvestment within one hundred eighty days of receipt thereof and subsequently
reinvested within two hundred seventy days of receipt
thereof, which investment may include the repair, restoration or replacement of the applicable
assets thereof; provided further, pending any such investment all such Net
Insurance/Condemnation Proceeds, as the case may be, shall be applied to prepay Revolving Loans to
the extent outstanding (without a reduction in Revolving Commitments).




          (c) Issuance of Equity Securities. No later than three (3) Business Days following
the date of receipt by Holdings of any Cash proceeds from a capital contribution to, or the
issuance of any Capital Stock of, Holdings or any of its Subsidiaries (other than pursuant to any
employee stock or stock option compensation plan or a Permitted Acquisition or warrants or options
in existence as of the Closing Date), Company shall prepay the Loans in an aggregate amount equal
to 50% of such net proceeds (net of underwriting discounts and commissions and other reasonable
costs and expenses associated therewith, including reasonable legal fees and expenses);
provided, during any period in which the Leverage Ratio (determined for any such period by
reference to the most recent Compliance Certificate delivered pursuant to Section 5.1(d)
calculating the Leverage Ratio) shall be 3.0:1.00 or less, Company shall only be required to make
the prepayments and/or reductions otherwise required hereby in an amount equal to 25% of such net
proceeds.




          (d) Issuance of Debt. No later than three (3) Business Days following the date of
receipt by Holdings or any of its Subsidiaries of any Cash proceeds from the incurrence of any
Indebtedness of Holdings or any of its Subsidiaries (other than with respect to any Indebtedness
permitted to be incurred pursuant to Section 6.1), Company shall prepay the Loans and/or the
Revolving Commitments shall be permanently reduced as set forth in Section 2.15(b) in an aggregate
amount equal to 100% of such proceeds, net of underwriting discounts and





50










 





commissions and other
reasonable costs and expenses associated therewith, including reasonable legal fees and expenses.




          (e) Consolidated Excess Cash Flow. In the event that there shall be Consolidated
Excess Cash Flow for any Fiscal Year, Company shall, no later than the earlier of (i) one hundred
twenty (120) days after the end of such Fiscal Year or (ii) the date of filing of Holding’s or the
Company’s required public filings, prepay the Loans and/or the Revolving Commitments shall be
permanently reduced as set forth in Section 2.15(b) in an aggregate amount equal to 50% of such
Consolidated Excess Cash Flow; provided, during any period in which the Leverage Ratio
(determined for any such period by reference to the most recent Compliance Certificate delivered
pursuant to Section 5.1(d) calculating the Leverage Ratio) shall be 3.0:1.00 or less, Company shall
only be required to make the prepayments and/or reductions otherwise required hereby in an amount
equal to 25% of such net proceeds.. Notwithstanding anything to the contrary set forth above, the
Company may make such payments at the end of each Fiscal Quarter prior to the end of such Fiscal
Year and, in the event that the aggregate sum of such quarterly payments is less than the required
prepayment amount hereunder, the Company shall pay the balance thereof in accordance with the terms
hereof. In no event shall any Lender be required to refund any amounts prepaid.




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




          (g) Prepayments Under Subordinated Indebtedness. In addition to any of the
prepayments required pursuant to the foregoing provisions of this Section 2.14, Company shall
prepay the Loans (without permanently reducing the Revolving Credit Commitments unless so required
to effect the purposes of this Section 2.14(g)) in amounts and on dates so as to minimize or
eliminate any mandatory prepayment (prior to the scheduled maturity of any Subordinated
Indebtedness) otherwise required pursuant to the terms of any Subordinated Indebtedness if and to
the extent such other prepayment can be eliminated or minimized as a result of a prepayment
pursuant to this Section 2.14(g)




          (h) Prepayment Certificate. Concurrently with any prepayment of the Loans and/or
reduction of the Revolving Commitments pursuant to Sections 2.14(a) through 2.14(e), Company shall
deliver to Administrative Agent a certificate of an Authorized Officer demonstrating the
calculation of the amount of the applicable net proceeds or Consolidated Excess Cash Flow, as the
case may be. In the event that Company shall subsequently determine that the actual amount
received exceeded the amount set forth in such certificate, Company shall promptly make an
additional prepayment of the Loans and/or the Revolving Commitments shall be permanently reduced in
an amount equal to such excess, and Company shall concurrently therewith deliver to Administrative
Agent a certificate of an Authorized Officer demonstrating the derivation of such excess.




     2.15. Application of Prepayments/Reductions.



51









 





          (a) Application of Voluntary Prepayments by Type of Loans. Any prepayment of any Loan
pursuant to Section 2.13(a) shall be applied as specified by Company in the applicable notice of
prepayment; provided, in the event Company fails to specify the Loans to which any such
prepayment shall be applied, such prepayment shall be applied as follows:





          first, to repay outstanding Swing Line Loans to the full extent thereof;




          second, to repay outstanding Revolving Loans to the full extent thereof; and




          third, to prepay the Term Loans.




          Any prepayment of any Term Loan pursuant to Section 2.13(a) shall be further applied on
a pro rata basis to reduce the remaining scheduled Installments of principal on such Term
Loan.



          (b) Application of Mandatory Prepayments by Type of Loans. Except as may otherwise be
set forth in subsections 2.14(c) and (e) above, any amount required to be paid pursuant to Sections
2.14(a) through 2.14(e) and 2.14 (g) shall be applied as follows:





          first, to prepay Term Loans pro rata across the remaining scheduled Installments of
principal of the Term Loans;




          second, to prepay the Swing Line Loans to the full extent thereof and to permanently
reduce the Revolving Commitments by the amount of such prepayment;




          third, to prepay the Revolving Loans to the full extent thereof and to further
permanently reduce the Revolving Commitments by the amount of such prepayment;




          fourth, to prepay outstanding reimbursement obligations with respect to Letters of
Credit and to further permanently reduce the Revolving Loan Commitments by the amount of
such prepayment;




          fifth, to cash collateralize Letters of Credit and to further permanently reduce the
Revolving Loan Commitments by the amount of such cash collateralization; and




          sixth, to further permanently reduce the Revolving Commitments to the full extent
thereof.



          (c) Application of Prepayments of Loans to Index Rate Loans and Eurodollar Rate Loans.
Considering each Class of Loans being prepaid separately, any prepayment thereof shall be applied
first to Index Rate Loans to the full extent thereof before application to Eurodollar Rate Loans,
in each case in a manner which minimizes the amount of any payments required to be made by Company
pursuant to Section 2.18(c).




     2.16. General Provisions Regarding Payments.



52









 





          (a) All payments by Company of principal, interest, fees and other Obligations shall be made
in Dollars in same day funds, without defense, setoff or counterclaim, free of any restriction or
condition, and delivered to Administrative Agent not later than 12:00 p.m. (New York City time) on
the date due at Administrative Agent’s Principal Office for the account of Lenders; funds received
by Administrative Agent after that time on such due date shall be deemed to have been paid by
Company on the next succeeding Business Day.




          (b) All payments in respect of the principal amount of any Loan (other than voluntary
prepayments of Revolving Loans) shall be accompanied by payment of accrued interest on the
principal amount being repaid or prepaid.




          (c) Administrative Agent shall promptly distribute to each Lender at such address as such
Lender shall indicate in writing, such Lender’s applicable Pro Rata Share of all payments and
prepayments of principal and interest due hereunder, together with all other amounts due thereto,
including, without limitation, all fees payable with respect thereto, to the extent received by
Administrative Agent.




          (d) Notwithstanding the foregoing provisions hereof, if any Conversion/Continuation Notice is
withdrawn as to any Affected Lender or if any Affected Lender
makes Index Rate Loans in lieu of its Pro Rata Share of any Eurodollar Rate Loans,
Administrative Agent shall give effect thereto in apportioning payments received thereafter.




          (e) Subject to the provisos set forth in the definition of “Interest Period”, whenever any
payment to be made hereunder shall be stated to be due on a day that is not a Business Day, such
payment shall be made on the next succeeding Business Day and such extension of time shall be
included in the computation of the payment of interest hereunder or of the Revolving Commitment
fees hereunder.




          (f) Company hereby authorizes Administrative Agent to charge Company’s accounts with
Administrative Agent in order to cause timely payment to be made to Administrative Agent of all
principal, interest, fees and expenses due hereunder (subject to sufficient funds being available
in its accounts for that purpose).




          (g) Administrative Agent shall deem any payment by or on behalf of Company hereunder that is
not made in same day funds prior to 12:00 p.m. (New York City time) to be a non-conforming payment.
Any such payment shall not be deemed to have been received by Administrative Agent until the later
of (i) the time such funds become available funds, and (ii) the applicable next Business Day.
Administrative Agent shall give prompt telephonic notice to Company and each applicable Lender
(confirmed in writing) if any payment is non-conforming. Any non-conforming payment may constitute
or become a Default or Event of Default in accordance with the terms of Section 8.1(a). Interest
shall continue to accrue on any principal as to which a non-conforming payment is made until such
funds become available funds (but in no event less than the period from the date of such payment to
the next succeeding applicable Business Day) at the rate determined pursuant to Section 2.10 from
the date such amount was due and payable until the date such amount is paid in full.





53









 








          (h) If an Event of Default shall have occurred and not otherwise been waived, and the maturity
of the Obligations shall have been accelerated pursuant to Section 8.1, all payments or proceeds
received by Agents hereunder in respect of any of the Obligations, shall be applied in accordance
with the application arrangements described in Section 7.2 of the Pledge and Security Agreement.




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



     2.18. Making or Maintaining Eurodollar Rate Loans.



          (a) Inability to Determine Applicable Interest Rate. In the event that Administrative
Agent shall have determined (which determination shall be final and conclusive and binding upon all
parties hereto), on any Interest Rate Determination Date with respect to any Eurodollar Rate Loans,
that by reason of circumstances affecting the London interbank market adequate and fair means do
not exist for ascertaining the interest rate applicable to such Loans on the basis provided for in
the definition of Adjusted Eurodollar Rate, Administrative Agent shall on such date give notice (by
telefacsimile or by telephone confirmed in writing) to Company and each Lender of such
determination, whereupon (i) no Loans may be made as, or converted to, Eurodollar Rate Loans until
such time as Administrative Agent notifies Company and Lenders that the circumstances giving rise
to such notice no longer exist, and (ii) any Funding Notice or




54









 







Conversion/Continuation
Notice given
by Company with respect to the Loans in respect of which such determination was made shall be
deemed to be rescinded by Company.




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




          (c) Compensation for Breakage or Non-Commencement of Interest Periods. Company shall
compensate each Lender, upon written request by such Lender (which request shall set forth the
basis for requesting such amounts), for all reasonable losses, expenses and liabilities (including
any interest paid by such Lender to Lenders of funds borrowed by it to make or carry its Eurodollar
Rate Loans and any loss, expense or liability sustained by such Lender in connection with the
liquidation or re-employment of such funds but excluding loss of anticipated profits) which such
Lender may sustain: (i) if for any reason (other than a default by such Lender) a borrowing of any
Eurodollar Rate Loan does not occur on a date specified therefor in a Funding Notice or a
telephonic request for borrowing, or a conversion to or continuation of any




55









 







Eurodollar Rate Loan
does not occur on a date specified therefore in a Conversion/Continuation Notice or a telephonic
request for conversion or continuation; (ii) if any prepayment or other principal payment of, or
any conversion of, any of its Eurodollar Rate Loans occurs on a date prior to the last day of an
Interest Period applicable to that Loan (including, without limitation, pursuant to Section 2.13(c)
hereof); or (iii) if any prepayment of any of its Eurodollar Rate Loans is not made on any date
specified in a notice of prepayment given by Company.




          (d) Booking of Eurodollar Rate Loans. Any Lender may make, carry or transfer
Eurodollar Rate Loans at, to, or for the account of any of its branch offices or the office of an
Affiliate of such Lender.




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




     2.19. Increased Costs; Capital Adequacy.



          (a) Compensation For Increased Costs and Taxes. Subject to the provisions of Section
2.20 (which shall be controlling with respect to the matters covered thereby), in the event that
any Lender (which term shall include Issuing Bank for purposes of this Section 2.19(a)) shall
determine (which determination shall, absent demonstrable error, be final and conclusive and
binding upon all parties hereto) that any law, treaty or governmental rule, regulation or order, or
any change therein or in the interpretation, administration or application thereof (including the
introduction of any new law, treaty or governmental rule, regulation or order), or any
determination of a court or governmental authority, in each case that becomes effective after the
date hereof, or compliance by such Lender with any guideline, request or directive issued or made
after the date hereof by any central bank or other governmental or quasi-governmental authority
(whether or not having the force of law): (i) subjects such Lender (or its applicable lending
office) to any additional Tax (other than any Tax on the overall net income of such Lender) with
respect to this Agreement or any of the other Credit Documents or any of its obligations hereunder
or thereunder or any payments to such Lender (or its applicable lending office) of principal,
interest, fees or any other amount payable hereunder; (ii) imposes, modifies or holds applicable
any reserve (including any marginal, emergency, supplemental, special or other reserve), special
deposit, compulsory loan, FDIC insurance or similar requirement against assets held by, or deposits
or other liabilities in or for the account of, or advances or loans by, or other credit extended
by, or any other acquisition of funds by, any office of such Lender (other than any such reserve or
other requirements with respect to Eurodollar Rate Loans that are reflected in the definition of
Adjusted Eurodollar Rate); or (iii) imposes any other condition (other than with respect to a Tax
matter) on or affecting such Lender (or its applicable lending




56









 







office) or its obligations hereunder
or the London interbank market; and the result of any of the foregoing is to increase the cost to
such Lender of agreeing to make, making or maintaining Loans hereunder or to reduce any amount
received or receivable by such Lender (or its applicable lending office) with respect thereto;
then, in any such case, Company shall promptly pay to such Lender, upon receipt of the statement
referred to in the next sentence, such additional amount or amounts (in the form of an increased
rate of, or a different method of calculating, interest or otherwise as such Lender in its sole
discretion shall determine) as may be necessary to compensate such Lender for any such increased
cost or reduction in amounts received or receivable hereunder. Such Lender shall deliver to
Company (with a copy to Administrative Agent) a written statement, setting forth in reasonable
detail the basis for calculating the additional amounts owed to such Lender under this Section
2.19(a), which statement shall be conclusive and binding upon all parties hereto absent
demonstrable error.




          (b) Capital Adequacy Adjustment. In the event that any Lender (which term shall
include Issuing Bank for purposes of this Section 2.19(b)) shall have determined that the
adoption, effectiveness, phase-in or applicability after the Closing Date of any law, rule or
regulation (or any provision thereof) regarding capital adequacy, or any change therein or in
the interpretation or administration thereof by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration thereof, or compliance by any
Lender (or its applicable lending office) with any guideline, request or directive regarding
capital adequacy (whether or not having the force of law) of any such Governmental Authority,
central bank or comparable agency, has or would have the effect of reducing the rate of return on
the capital of such Lender or any corporation controlling such Lender as a consequence of, or with
reference to, such Lender’s Loans or Revolving Commitments or Letters of Credit, or participations
therein or other obligations hereunder with respect to the Loans or the Letters of Credit to a
level below that which such Lender or such controlling corporation could have achieved but for such
adoption, effectiveness, phase-in, applicability, change or compliance (taking into consideration
the policies of such Lender or such controlling corporation with regard to capital adequacy), then
from time to time, within five Business Days after receipt by Company from such Lender of the
statement referred to in the next sentence, Company shall pay to such Lender such additional amount
or amounts as will compensate such Lender or such controlling corporation on an after-tax basis for
such reduction. Such Lender shall deliver to Company (with a copy to Administrative Agent) a
written statement, setting forth in reasonable detail the basis for calculating the additional
amounts owed to Lender under this Section 2.19(b), which statement shall be conclusive and binding
upon all parties hereto absent demonstrable error.




     2.20. Taxes; Withholding, etc.



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




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          (b) Withholding of Taxes. If any Credit Party or any other Person is required by law
to make any deduction or withholding on account of any such Tax from any sum paid or payable by any
Credit Party to Administrative Agent or any Lender (which term shall include Issuing Bank for
purposes of this Section 2.20(b)) under any of the Credit Documents: (i) Company shall notify
Administrative Agent of any such requirement or any change in any such requirement as soon as
Company becomes aware of it; (ii) Company shall pay any such Tax before the date on which penalties
attach thereto, such payment to be made (if the liability to pay is imposed on any Credit Party)
for its own account or (if that liability is imposed on Administrative Agent or such Lender, as the
case may be) on behalf of and in the name of Administrative Agent or such Lender; (iii) the sum
payable by such Credit Party in respect of which the relevant deduction, withholding or payment is
required shall be increased to the extent necessary to ensure that, after the making of that
deduction, withholding or payment, Administrative Agent or such Lender, as the case may be,
receives on the due date a net sum equal to what it would have received had no such deduction,
withholding or payment been required or made; and (iv) within thirty days after paying any sum from
which it is required by law to make any deduction or withholding, and within thirty days after the
due date of payment
of any Tax which it is required by clause (ii) above to pay, Company shall deliver to
Administrative Agent evidence satisfactory to the other affected parties of such deduction,
withholding or payment and of the remittance thereof to the relevant taxing or other authority;
provided, no such additional amount shall be required to be paid to any Lender under clause (iii)
above except to the extent that any change after the date hereof (in the case of each Lender listed
on the signature pages hereof on the Effective Date) or after the effective date of the Assignment
Agreement pursuant to which such Lender became a Lender (in the case of each other Lender) in any
such requirement for a deduction, withholding or payment as is mentioned therein shall result in an
increase in the rate of such deduction, withholding or payment from that in effect at the date
hereof or at the date of such Assignment Agreement, as the case may be, in respect of payments to
such Lender.




          (c) Evidence of Exemption From U.S. Withholding Tax. Each Lender that is not a United
States Person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) for
U.S. federal income tax purposes (a “Non-US Lender”) shall deliver to Administrative Agent and the
Company, on or prior to the Effective Date (in the case of each Lender listed on the signature
pages hereof on the Effective Date) or on or prior to the date of the Assignment Agreement pursuant
to which it becomes a Lender (in the case of each other Lender), and at such other times as may be
necessary in the determination of Company or Administrative Agent (each in the reasonable exercise
of its discretion), (i) two original copies of Internal Revenue Service Form W-8BEN or W-8ECI (or
any successor forms), properly completed and duly executed by such Lender, and such other
documentation required under the Internal Revenue Code and reasonably requested by Company to
establish that such Lender is not subject to deduction or withholding of United States federal
income tax with respect to any payments to such Lender of principal, interest, fees or other
amounts payable under any of the Credit Documents, or (ii) if such Lender is not a “bank” or other
Person described in Section 881(c)(3) of the Internal Revenue Code and cannot deliver either
Internal Revenue Service Form W-8BEN or W-8ECI pursuant to clause (i) above, a Certificate re
Non-Bank Status together with two original copies of Internal Revenue Service Form W-8 (or any
successor form), properly completed and duly executed by such Lender, and such other documentation
required under the Internal Revenue Code and reasonably requested by Company to establish






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that such
Lender is not subject to deduction or withholding of United States federal income tax with respect
to any payments to such Lender of interest payable under any of the Credit Documents. Each Lender
required to deliver any forms, certificates or other evidence with respect to United States federal
income tax withholding matters pursuant to this Section 2.20(c) hereby agrees, from time to time
after the initial delivery by such Lender of such forms, certificates or other evidence, whenever a
lapse in time or change in circumstances renders such forms, certificates or other evidence
obsolete or inaccurate in any material respect, that such Lender shall promptly deliver to
Administrative Agent and the Company two new original copies of Internal Revenue Service Form
W-8BEN or W-8ECI , or a Certificate re Non-Bank Status and two original copies of Internal Revenue
Service Form W-8, as the case may be, properly completed and duly executed by such Lender, and such
other documentation required under the Internal Revenue Code and reasonably requested by Company to
confirm or establish that such Lender is not subject to deduction or withholding of United States
federal income tax with respect to payments to such Lender under the Credit Documents, or notify
Administrative Agent and Company of its inability to deliver any such forms, certificates or other
evidence. Company shall not be required to pay any additional amount to any Non-US Lender under
Section 2.20(b)(iii) if such Lender shall have failed (1) to deliver the forms, certificates
or other evidence referred to in the second sentence of this Section 2.20(c), or (2) to notify
Administrative Agent and Company of its inability to deliver any such forms, certificates or other
evidence, as the case may be; provided, if such Lender shall have satisfied the
requirements of the first sentence of this Section 2.20(c) on the Effective Date or on the date of
the Assignment Agreement pursuant to which it became a Lender, as applicable, nothing in this last
sentence of Section 2.20(c) shall relieve Company of its obligation to pay any additional amounts
pursuant this Section 2.20 in the event that, as a result of any change in any applicable law,
treaty or governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer properly entitled to deliver forms,
certificates or other evidence at a subsequent date establishing the fact that such Lender is not
subject to withholding as described herein.




     2.21. Obligation to Mitigate. Each Lender (which term shall include Issuing Bank for purposes
of this Section 2.21) agrees that, as promptly as practicable after the officer of such Lender
responsible for administering its Loans or Letters of Credit, as the case may be, becomes aware of
the occurrence of an event or the existence of a condition that would cause such Lender to become
an Affected Lender or that would entitle such Lender to receive payments under Section 2.18, 2.19
or 2.20, it will, to the extent not inconsistent with the internal policies of such Lender and any
applicable legal or regulatory restrictions, use reasonable efforts to (a) make, issue, fund or
maintain its Credit Extensions, including any Affected Loans, through another office of such
Lender, or (b) take such other measures as such Lender may deem reasonable, if as a result thereof
the circumstances which would cause such Lender to be an Affected Lender would cease to exist or
the additional amounts which would otherwise be required to be paid to such Lender pursuant to
Section 2.18, 2.19 or 2.20 would be materially reduced and if, as determined by such Lender in its
sole discretion, the making, issuing, funding or maintaining of such Revolving Commitments, Loans
or Letters of Credit through such other office or in accordance with such other measures, as the
case may be, would not otherwise adversely affect such Revolving Commitments, Loans or Letters of
Credit or the interests of such Lender; provided, such Lender will not be obligated to
utilize such other office pursuant to this Section 2.21 unless Company agrees to pay all
incremental expenses incurred by such Lender as a result



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of utilizing such other office as
described in clause (i) above. A certificate as to the amount of any such expenses payable by
Company pursuant to this Section 2.21 (setting forth in reasonable detail the basis for requesting
such amount) submitted by such Lender to Company (with a copy to Administrative Agent) shall be
conclusive absent demonstrable error.




     2.22. Defaulting Lenders. Anything contained herein to the contrary notwithstanding, in the
event that any Lender, except at the direction or request of any regulatory agency or authority,
defaults (a “Defaulting Lender”) in its obligation to fund (a “Funding Default”) any Revolving Loan
or its portion of any unreimbursed payment under Section 2.3(b)(iv) or 2.4(e) (in each case, a
“Defaulted Loan”), then (a) during any Default Period with respect to such Defaulting Lender, such
Defaulting Lender shall be deemed not to be a “Lender” for purposes of voting on any matters
(including the granting of any consents or waivers) with respect to any of the Credit
Documents; (b) to the extent permitted by applicable law, until such time as the Default
Excess with respect to such Defaulting Lender shall have been reduced to zero, (i) any voluntary
prepayment of the Revolving Loans shall, if Company so directs at the time of making such voluntary
prepayment, be applied to the Revolving Loans of other Lenders as if such Defaulting Lender had no
Revolving Loans outstanding and the Revolving Exposure of such Defaulting Lender were zero, and
(ii) any mandatory prepayment of the Revolving Loans shall, if Company so directs at the time of
making such mandatory prepayment, be applied to the Revolving Loans of other Lenders (but not to
the Revolving Loans of such Defaulting Lender) as if such Defaulting Lender had funded all
Defaulted Loans of such Defaulting Lender, it being understood and agreed that Company shall be
entitled to retain any portion of any mandatory prepayment of the Revolving Loans that is not paid
to such Defaulting Lender solely as a result of the operation of the provisions of this clause (b);
(c) such Defaulting Lender’s Revolving Commitment and outstanding Revolving Loans and such
Defaulting Lender’s Pro Rata Share of the Letter of Credit Usage shall be excluded for purposes of
calculating the Revolving Commitment fee payable to Lenders in respect of any day during any
Default Period with respect to such Defaulting Lender, and such Defaulting Lender shall not be
entitled to receive any Revolving Commitment fee pursuant to Section 2.11 with respect to such
Defaulting Lender’s Revolving Commitment in respect of any Default Period with respect to such
Defaulting Lender; and (d) the Total Utilization of Revolving Commitments as at any date of
determination shall be calculated as if such Defaulting Lender had funded all Defaulted Loans of
such Defaulting Lender. No Revolving Commitment of any Lender shall be increased or otherwise
affected, and, except as otherwise expressly provided in this Section 2.22, performance by Company
of its obligations hereunder and the other Credit Documents shall not be excused or otherwise
modified as a result of any Funding Default or the operation of this Section 2.22. The rights and
remedies against a Defaulting Lender under this Section 2.22 are in addition to other rights and
remedies which Company may have against such Defaulting Lender with respect to any Funding Default
and which Administrative Agent or any Lender may have against such Defaulting Lender with respect
to any Funding Default.



     2.23. Removal or Replacement of a Lender. Anything contained herein to the contrary
notwithstanding, in the event that: (a) (i) any Lender (an “Increased-Cost Lender”) shall give
notice to Company that such Lender is an Affected Lender or that such Lender is entitled to receive
payments under Section 2.18, 2.19 or 2.20, (ii) the circumstances which have caused such Lender to
be an Affected Lender or which entitle such Lender to receive such payments shall remain in effect,
and (iii) such Lender shall fail to withdraw such notice within



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five Business Days after Company’s
request for such withdrawal; or (b) (i) any Lender shall become a Defaulting Lender, (ii) the
Default Period for such Defaulting Lender shall remain in effect, and (iii) such Defaulting Lender
shall fail to cure the default as a result of which it has become a Defaulting Lender within five
Business Days after Company’s request that it cure such default; or (c) in connection with any
proposed amendment, modification, termination, waiver or consent with respect to any of the
provisions hereof as contemplated by Section 10.5(b), the consent of Requisite Lenders shall have
been obtained but the consent of one or more of such other Lenders (each a “Non-Consenting Lender”)
whose consent is required shall not have been obtained; then, with respect to each such
Increased-Cost Lender, Defaulting Lender or Non-Consenting Lender (the “Terminated Lender”),
Company may, by giving written notice to Administrative Agent and any Terminated
Lender of its election to do so, (i) elect to cause such Terminated Lender (and such
Terminated Lender hereby irrevocably agrees) to assign its outstanding Loans and its Revolving
Commitments, if any, in full to one or more Eligible Assignees (each a “Replacement Lender”) in
accordance with the provisions of Section 10.6 and (ii) in the event such Terminated Lender fails
to execute and provide an Assignment Agreement, Administrative Agent shall have such powers to
execute the necessary Assignment Agreement on behalf of such Terminated Lender, and Terminated
Lender shall pay any fees payable thereunder in connection with such assignment ; provided,
(1) on the date of such assignment, the Replacement Lender shall pay to Terminated Lender an amount
equal to the sum of (A) an amount equal to the principal of, and all accrued interest on, all
outstanding Loans of the Terminated Lender, (B) an amount equal to all unreimbursed drawings that
have been funded by such Terminated Lender, together with all then unpaid interest with respect
thereto at such time and (C) an amount equal to all accrued, but theretofore unpaid fees owing to
such Terminated Lender pursuant to Section 2.11; (2) on the date of such assignment, Company shall
pay any amounts payable to such Terminated Lender pursuant to Section 2.18(c), 2.19 or 2.20; or
otherwise as if it were a prepayment and (3) in the event such Terminated Lender is a
Non-Consenting Lender, each Replacement Lender shall consent, at the time of such assignment, to
each matter in respect of which such Terminated Lender was a Non-Consenting Lender;
provided, Company may not make such election with respect to any Terminated Lender that is
also an Issuing Bank unless, prior to the effectiveness of such election, Company shall have caused
each outstanding Letter of Credit issued thereby to be cancelled. Upon the prepayment of all
amounts owing to any Terminated Lender and the termination of such Terminated Lender’s Revolving
Commitments, if any, such Terminated Lender shall no longer constitute a “Lender” for purposes
hereof; provided, any rights of such Terminated Lender to indemnification hereunder shall
survive as to such Terminated Lender.




     2.24. Incremental Facilities. Company may by written notice to Administrative Agent and
Syndication Agent elect to request the establishment of one or more new term loan commitments (the
“New Term Loan Commitments”), by an amount not in excess of $207,500,000 in the aggregate with (i)
a maximum amount of $157,500,000 funded on the Effective Date and (ii) not less than $5,000,000
individually (or such lesser amount which shall be approved by Administrative Agent and Syndication
Agent or such lesser amount that shall constitute the difference between $5,000,0000 and all such
New Term Loan Commitments obtained prior to such date), and integral multiples of $1,000,000 in
excess of that amount. Each such notice shall specify (A) the date (each, an “Increased Amount
Date”) on which Company proposes that the New Term Loan Commitments shall be effective, which shall
be a date not less than 10 Business Days after the date on which such notice is delivered to
Administrative Agent



61









 




and Syndication Agent and (B) the identity of each Lender or other Person that
is an Eligible Assignee (each a “New Term Loan Lender”) to whom Company proposes any portion of
such New Term Loan Commitments be allocated and the amounts of such allocations; provided
that any Lender approached to provide all or a portion of the New Term Loan Commitments may elect
or decline, in its sole discretion, to provide a New Term Loan Commitment. Such New Term Loan
Commitments shall become effective, as of such Increased Amount Date; provided that (1) no
Default or Event of Default shall exist on such Increased Amount Date before or after giving effect
to such New Term Loan Commitments; (2) both before and after giving effect to the making of any New
Term Loans, each of the conditions set forth in Section 3.2 shall be satisfied; (3) Company and its
Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Section
6.8 as of the last day of the most recently ended Fiscal Quarter after giving effect to such New
Term Loan Commitments; (4) the New Term Loan Commitments shall be effected pursuant to one or more
Joinder Agreements executed and delivered by Company, Syndication Agent and Administrative Agent,
and each of which shall be recorded in the Register and shall be subject to the requirements set
forth in Section 2.20(c); (5) Company shall make any payments required pursuant to Section 2.18(c)
in connection with the New Term Loan Commitments; and (6) Company shall deliver or cause to be
delivered any legal opinions or other documents reasonably requested by Administrative Agent in
connection with any such transaction.




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



     Administrative Agent shall notify Lenders promptly upon receipt of Company’s notice of each
Increased Amount Date and in respect thereof of New Term Loan Commitments and the New Term Loan
Lenders, subject to the assignments contemplated by this Section.



     The terms and provisions of the New Term Loans and New Term Loan Commitments shall be
identical to the Tranche C Term Loans, including, without limitation, with respect to amortization,
interest and maturity. Each Joinder Agreement may, without the consent of any other Lenders,
effect such amendments to this Agreement and the other Credit Documents as may be necessary or
appropriate, in the opinion of the Syndication Agent and Administrative Agent, to effect the
provision of this Section 2.24.



SECTION 3. CONDITIONS PRECEDENT




     3.1. Effective Date. The obligation of any Lender to make a Credit Extension on the Effective
Date is subject to the satisfaction, or waiver in accordance with Section 10.5, of the following
conditions on or before the Effective Date:



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          (a) Credit Documents. Administrative Agent shall have received sufficient copies of
each Credit Document in a form satisfactory to the Administrative Agent originally executed and
delivered by each applicable Credit Party for each Lender.




          (b) Organizational Documents; Incumbency. Administrative Agent shall have received
(i) sufficient copies of each Organizational Document originally executed and delivered by each
Credit Party, as applicable, and, to the extent applicable, certified as of a recent date by the
appropriate governmental official, for each Lender, each dated the Effective Date or a recent date
prior thereto; provided that in lieu of delivering each Organizational Document, the
Company may deliver a certificate of an Authorized Officer certifying that there have been no
material amendments to those Organizational Documents previously delivered to the Administrative
Agent in connection with the Existing Credit Agreement; (ii) signature and
incumbency certificates of the officers of such Person executing the Credit Documents to which
it is a party; (iii) resolutions of the Board of Directors or similar governing body of each Credit
Party approving and authorizing the execution, delivery and performance of this Agreement and the
other Credit Documents and the Related Agreements to which it is a party or by which it or its
assets may be bound as of the Effective Date, certified as of the Effective Date by its secretary
or an assistant secretary as being in full force and effect without modification or amendment; (iv)
a good standing certificate from the applicable Governmental Authority of each of (i) Company, (ii)
AR Holdings, and (iii) Holdings jurisdiction of incorporation, organization or formation and in
each jurisdiction in which it is qualified as a foreign corporation or other entity to do business,
each dated a recent date prior to the Effective Date; and (v) such other documents as
Administrative Agent may reasonably request.




          (c) Organizational and Capital Structure. The organizational structure and capital
structure of Holdings and its Subsidiaries shall be as set forth on Schedule 4.1.




          (d) Capitalization of Holdings and Company; Related Financings. On or before the
Effective Date, Administrative Agent and Syndication Agent shall be satisfied in all respects with
Holdings’ capital structure.




          (e) Related Agreements. Syndication Agent and Administrative Agent shall each have
received a fully executed or conformed copy of each Related Agreement and any documents executed in
connection therewith, together with copies of each of the opinions of counsel delivered to the
parties under the Related Agreements, accompanied by a letter from each such counsel (to the extent
not inconsistent with such counsel’s established internal policies) authorizing Lenders to rely
upon such opinion to the same extent as though it were addressed to Lenders; provided that
in lieu of delivering each Related Agreement, the Company may deliver a certificate of an
Authorized Officer certifying that there have been no material amendments to those Related
Agreements previously delivered to the Administrative Agent in connection with the Existing Credit
Agreement. There shall be no defaults or events of default (as may be defined in the applicable
Related Agreement) under any Related Agreements and each Related Agreement shall be in full force
and effect, and no provision thereof shall have been modified or waived in any respect determined
by Syndication Agent or Administrative Agent to be material, in each case without the consent of
Syndication Agent and Administrative Agent.




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          (f) Existing Indebtedness. (i) There shall be no material defaults or material events
of default under the Existing Credit Agreement and (ii) on the Effective Date, Holdings and its
Subsidiaries shall have delivered to Syndication Agent and Administrative Agent (1) a fully
executed or conformed copy of each document evidencing the Existing Seller Subordinated Notes and
the Existing Earn-Out Obligations and (2) a certificate from an Authorized Officer of each
applicable Credit Party, in form and substance satisfactory to Syndication Agent and Administrative
Agent, with respect thereto; provided that in lieu of delivering such documents evidencing
the Existing Seller Subordinated Notes and the Existing Earn-Out Obligations, the Company may
deliver a certificate of an Authorized Officer certifying that there have been no material
amendments to those documents evidencing the Existing Seller Subordinated Notes and the Existing
Earn-Out Obligations previously delivered to the Administrative Agent in connection with the
Existing Credit Agreement.




          (g) Transaction Costs. On or prior to the Effective Date, Company shall have
delivered to Administrative Agent Company’s reasonable best estimate of the Transactions Costs
(other than fees payable to any Agent).




          (h) Governmental Authorizations and Consents. Each Credit Party shall have obtained
all Governmental Authorizations and all consents of other Persons, in each case that are necessary
or advisable in connection with the transactions contemplated by the Credit Documents and the
Related Agreements and each of the foregoing shall be in full force and effect and in form and
substance reasonably satisfactory to Syndication Agent and Administrative Agent. All applicable
waiting periods shall have expired without any action being taken or threatened by any competent
authority which would restrain, prevent or otherwise impose adverse conditions on the transactions
contemplated by the Credit Documents or the Related Agreements or the financing thereof and no
action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect
to any of the foregoing shall be pending, and the time for any applicable agency to take action to
set aside its consent on its own motion shall have expired.




          (i) Real Estate Assets. In order to create in favor of Collateral Agent, for the
benefit of Secured Parties, a valid and, subject to any filing and/or recording referred to herein,
perfected first priority security interest in certain Real Estate Assets, Collateral Agent shall
have received from Company and each applicable Guarantor:





          (i) fully executed and notarized Mortgages, in proper form for recording in all
appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset
listed in Schedule 3.1(i) (each, a “Closing Date Mortgaged Property’’);




          (ii) an opinion of counsel (which counsel shall be reasonably satisfactory to
Collateral Agent) in each state in which a Closing Date Mortgaged Property is located with
respect to the enforceability of the form(s) of Mortgages to be recorded in such state and
such other matters as Collateral Agent may reasonably request, in each case in form and
substance reasonably satisfactory to Collateral Agent;



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          (iii) in the case of each Leasehold Property, if any, that is a Closing Date Mortgaged
Property, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property
is a Recorded Leasehold Interest;




          (iv) (a) ALTA mortgagee title insurance policies or unconditional commitments therefore
issued by one or more title companies reasonably satisfactory to Collateral Agent with
respect to each Closing Date Mortgaged Property or such title endorsements and/or updates to
the title insurance policies for any Closing Date Mortgaged Property previously delivered to
Collateral Agent on the Closing Date, as may be reasonably required by Collateral Agent
(each, a “Title Policy”), evidencing title insurance coverage in amounts not less than the
fair market value of each Closing Date Mortgaged Property, together with a title report
issued by a title company with respect thereto, dated not more than thirty days prior to the
Closing Date and copies of all recorded documents listed as exceptions to title or otherwise
referred to therein, each in form and substance reasonably satisfactory to Collateral Agent
and (b) evidence
satisfactory to Collateral Agent that such Credit Party has paid to the title company
or to the appropriate Governmental Authorities all expenses and premiums of the title
company and all other sums required in connection with the issuance of each Title Policy and
all recording and stamp taxes (including mortgage recording and intangible taxes) payable in
connection with recording the Mortgages for each Closing Date Mortgaged Property in the
appropriate real estate records; and




          (v) evidence of flood insurance with respect to each Flood Hazard Property that is
located in a community that participates in the National Flood Insurance Program, in each
case in compliance with any applicable regulations of the Board of Governors of the Federal
Reserve System, in form and substance reasonably satisfactory to Collateral Agent.



          (j) Personal Property Collateral. In order to create in favor of Collateral Agent,
for the benefit of Secured Parties, a valid, perfected first priority security interest in the
personal property Collateral, Collateral Agent shall have received:





          (i) evidence satisfactory to Collateral Agent of the compliance by each Credit Party of
their obligations under the Pledge and Security Agreement and the other Collateral Documents
(including, without limitation, their obligations to execute and deliver UCC financing
statements, originals of securities, instruments and chattel paper and any agreements
governing deposit and/or securities accounts as provided therein);




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



65









 






(or equivalent filings) disclosed in such search (other
than any such financing statements in respect of Permitted Liens);



     (iii) opinions of counsel (which counsel shall be reasonably satisfactory to Collateral
Agent) with respect to the creation and perfection of the security interests in favor of
Collateral Agent in such Collateral and such other matters governed by the laws of each
jurisdiction in which any Credit Party or any personal property Collateral is located as
Collateral Agent may reasonably request, in each case in form and substance reasonably
satisfactory to Collateral Agent; and



     (iv) evidence that each Credit Party shall have taken or caused to be taken any other
action, executed and delivered or caused to be executed and delivered any other agreement,
document and instrument (including, without limitation, any intercompany notes evidencing
Indebtedness permitted to be incurred pursuant to Section
6.1(b)) and made or caused to be made any other filing and recording (other than as set
forth herein) reasonably required by Collateral Agent.



          (k) Payment of Accrued Interest. All interest accrued up to and including the
Effective Date on each Tranche C Term Loan shall be paid in full on the Effective Date.




          (l) [Reserved].




          (m) Evidence of Insurance. Collateral Agent shall have received a certificate from
Company’s insurance broker or other evidence satisfactory to it that all insurance required to be
maintained pursuant to Section 5.5 is in full force and effect and that Collateral Agent, for the
benefit of Lenders has been named as additional insured and loss payee thereunder to the extent
required under Section 5.5.




          (n) Opinions of Counsel to Credit Parties. Lenders and their respective counsel shall
have received originally executed copies of the favorable written opinions of those counsel for
Credit Parties set forth in Schedule 3.1(n), in the form of Exhibit D and as to such other matters
as Administrative Agent or Syndication Agent may reasonably request, dated as of the Effective Date
and otherwise in form and substance reasonably satisfactory to Administrative Agent and Syndication
Agent (and each Credit Party hereby instructs such counsel to deliver such opinions to Agents and
Lenders).




          (o) [Reserved].




          (p) Fees. Company shall have paid to Syndication Agent and Administrative Agent the
fees payable on the Effective Date referred to in Section 2.11(d).




          (q) Effective Date Certificate. Holdings and Company shall have delivered to
Syndication Agent and Administrative Agent an originally executed Effective Date Certificate,
together with all attachments thereto.




          (r) New Term Loans. New Term Loans shall have been made to Company in an aggregate
amount of no more than $157,500,000.




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          (s) Second Lien Indebtedness. All Indebtedness outstanding under the Second Lien
Credit Agreement shall have been paid in full.




          (t) No Litigation. There shall not exist any action, suit, investigation, litigation
or proceeding or other legal or regulatory developments, pending or threatened in any court or
before any arbitrator or Governmental Authority that, in the reasonable opinion of Administrative
Agent and Syndication Agent, singly or in the aggregate, materially impairs any of transactions
contemplated by the Credit Documents or the Related Agreements, or that could reasonably be
expected to have a Material Adverse Effect.




          (u) Completion of Proceedings. All partnership, corporate and other proceedings taken
or to be taken in connection with the transactions contemplated hereby and all documents incidental
thereto not previously found acceptable by Administrative Agent or Syndication Agent and its
counsel shall be satisfactory in form and substance to Administrative Agent and
Syndication Agent and such counsel, and Administrative Agent, Syndication Agent and such
counsel shall have received all such counterpart originals or certified copies of such documents as
Administrative Agent or Syndication Agent may reasonably request.




          (v) Consents. Company, Holdings, Requisite Class Lenders holding Tranche C Term Loan
Exposure and Requisite Lenders (as such terms are defined under the Existing Credit Agreement)
shall have indicated their consent (including consent to use proceeds from the Loans to pay in full
all outstanding indebtedness under the Second Lien Credit Agreement, as required thereunder) by the
execution and delivery of the signature pages hereof to the Administrative Agent.




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



          Notwithstanding the foregoing, Administrative Agent hereby delegates its responsibility to accept delivery of the closing items under this Section 3.1 to GSCP, and GSCP hereby
accepts such delegation. Lenders hereby agree that Administrative Agent may rely on a written acknowledgement by GSCP to Administrative Agent that GSCP has received all of the necessary deliveries, and made, or instructed Administrative Agent to make, all of the necessary filings required under
this Section 3.1 unless such delivery has been waived in accordance with this Agreement.



     3.2. Conditions to Each Credit Extension.



          (a) Conditions Precedent. The obligation of each Lender to make any Loan, or Issuing
Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date, are subject
to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions
precedent:





          (i) Administrative Agent shall have received a fully executed and delivered Funding
Notice or Issuance Notice, as the case may be;




          (ii) after making the Credit Extensions requested on such Credit Date, the Total
Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in
effect;




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



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date, in which
case such representations and warranties shall have been true and correct in all material
respects on and as of such earlier date;




          (iv) as of such Credit Date, no event shall have occurred and be continuing or would
result from the consummation of the applicable Credit Extension that would constitute an
Event of Default or a Default;




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




          (vi) as of such Credit Date, the Leverage Ratio determined as of such date after giving
effect to the contemplated Credit Extension shall not exceed the maximum Leverage Ratio
permitted as of the last day of the immediately succeeding Fiscal Quarter pursuant to
Section 6.8(c); and




          (vii) after giving effect to such Credit Extension the aggregate Cash and Cash
Equivalents of Holdings and its subsidiaries will not exceed $15,000,000.


Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior
to the making of any Credit Extension, additional information reasonably satisfactory to the
requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment
of such Agent or Requisite Lender such request is warranted under the circumstances.




          (b) Notices. Any Notice shall be executed by an Authorized Officer in a writing
delivered to Administrative Agent. In lieu of delivering a Notice, Company may give Administrative
Agent telephonic notice by the required time of any proposed borrowing, conversion/continuation or
issuance of a Letter of Credit, as the case may be; provided each such notice shall be
promptly confirmed in writing by delivery of the applicable Notice to Administrative Agent on or
before the applicable date of borrowing, continuation/conversion or issuance. Neither
Administrative Agent nor any Lender shall incur any liability to Company in acting upon any
telephonic notice referred to above that Administrative Agent believes in good faith to have been
given by a duly authorized officer or other person authorized on behalf of Company or for otherwise
acting in good faith.




SECTION 4. REPRESENTATIONS AND WARRANTIES




     In order to induce Lenders and Issuing Bank to enter into this Agreement and to make each
Credit Extension to be made thereby, each Credit Party represents and warrants to each Lender and
Issuing Bank, on the Effective Date and on each Credit Date, that the following statements are true
and correct:



     4.1. Organization; Requisite Power and Authority; Qualification. Each of Holdings and its
Subsidiaries (a) is duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization as identified in Schedule 4.1, (b) has all requisite power and
authority to own and operate its properties, to carry on its business as now conducted and as



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proposed to be conducted, to enter into the Credit Documents to which it is a party and to carry
out the transactions contemplated thereby, and (c) is qualified to do business and in good standing
in every jurisdiction where its assets are located and wherever necessary to carry out its business
and operations, except in jurisdictions where the failure to be so qualified or in good standing
has not had, and could not be reasonably expected to have, a Material Adverse Effect.




     4.2. Capital Stock and Ownership. The Capital Stock of each of Holdings and its Subsidiaries
has been duly authorized and validly issued and is fully paid and non-assessable. Except as set
forth on Schedule 4.2, as
of the date hereof, there is no existing option, warrant, call, right, commitment or other
agreement to which Holdings or any of its Subsidiaries is a party requiring, and there is no
Capital Stock of Holdings or any of its Subsidiaries outstanding which upon conversion or exchange
would require, the issuance by Holdings or any of its Subsidiaries of any additional Capital Stock
of Holdings or any of its Subsidiaries or other Securities convertible into, exchangeable for or
evidencing the right to subscribe for or purchase, Capital Stock of Holdings or any of its
Subsidiaries. Schedule 4.2 correctly sets forth the ownership interest of Holdings and each of its
Subsidiaries in their respective Subsidiaries as of the Effective Date.



     4.3. Due Authorization. The execution, delivery and performance of the Credit Documents have
been duly authorized by all necessary action on the part of each Credit Party that is a party
thereto.



     4.4. No Conflict. The execution, delivery and performance by Credit Parties of the Credit
Documents to which they are parties and the consummation of the transactions contemplated by the
Credit Documents do not and will not (a) violate any provision of any law or any governmental rule
or regulation applicable to Holdings or any of its Subsidiaries, any of the Organizational
Documents of Holdings or any of its Subsidiaries, or any order, judgment or decree of any court or
other agency of government binding on Holdings or any of its Subsidiaries except to the extent such
violation could not be reasonably expected to have a Material Adverse Effect; (b) conflict with,
result in a breach of or constitute (with due notice or lapse of time or both) a default under any
Contractual Obligation of Holdings or any of its Subsidiaries except to the extent such conflict,
breach or default could not reasonably be expected to have a Material Adverse Effect; (c) result in
or require the creation or imposition of any Lien upon any of the properties or assets of Holdings
or any of its Subsidiaries (other than any Liens created under any of the Credit Documents in favor
of Collateral Agent, on behalf of Secured Parties); or (d) require any approval of stockholders,
members or partners or any approval or consent of any Person under any Contractual Obligation of
Holdings or any of its Subsidiaries, except for such approvals or consents which will be obtained
on or before the Effective Date and disclosed in writing to Lenders and except for any such
approvals or consents the failure of which to obtain will not have a Material Adverse Effect.



     4.5. Governmental Consents. The execution, delivery and performance by Credit Parties of the
Credit Documents to which they are parties and the consummation of the transactions contemplated by
the Credit Documents do not and will not require any registration with, consent or approval of, or
notice to, or other action to, with or by, any Governmental Authority except for filings and
recordings with respect to the Collateral to be made, or



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otherwise delivered to Collateral Agent
for filing and/or recordation, as of the Effective Date, other than certain filings required by the
Securities Exchange Act of 1934.




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



     4.7. Historical Financial Statements. The Historical Financial Statements were prepared in
conformity with GAAP and fairly present, in all material respects, the financial position, on a
consolidated basis, of the Persons described in such financial statements as at the respective
dates thereof and the results of operations and cash flows, on a consolidated basis, of the
entities described therein for each of the periods then ended, subject, in the case of any such
unaudited financial statements, to changes resulting from audit and normal year-end adjustments.
As of the Closing Date, neither AR Holdings nor any of its Subsidiaries had any contingent
liability or liability for taxes, long-term lease or unusual forward or long-term commitment that
is not reflected in the Historical Financial Statements or the notes thereto and which in any such
case is material in relation to the business, operations, properties, assets, condition (financial
or otherwise) or prospects of AR Holdings and any of its Subsidiaries taken as a whole.



     4.8. Projections. On and as of the Effective Date, the projected financial information of
Holdings and its Subsidiaries for the period Fiscal Year 2005 through and including Fiscal Year
2008 (the “Projections") were based on good faith estimates and assumptions made by the management
of Holdings; provided, the Projections are not to be viewed as facts and that actual
results during the period or periods covered by the Projections may differ from such Projections
and that the differences may be material; provided further, as of the Closing Date,
management of AR Holdings believed that the Projections were reasonable and attainable.



     4.9. No Material Adverse Change. Since December 31, 2002, no event, circumstance or change
has occurred that has caused or evidences, either in any case or in the aggregate, a Material
Adverse Effect.



     4.10. No Restricted Junior Payments. Since September 30, 2003, neither Holdings nor any of
its Subsidiaries has directly or indirectly declared, ordered, paid or made, or set apart any sum
or property for, any Restricted Junior Payment or agreed to do so except as permitted pursuant to
Section 6.5.



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



70









 




or foreign, that,
individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.




     4.12. Payment of Taxes. Except as otherwise permitted under Section 5.3, all tax returns and
reports of Holdings and its Subsidiaries required to be filed by any of them have been timely
filed, and all taxes shown on such tax returns to be due and payable and all assessments, fees and
other governmental charges upon Holdings and its Subsidiaries and upon their respective properties,
assets, income, businesses and franchises which are due and payable have been paid when due and
payable. Holdings knows of no proposed tax assessment against Holdings or any of its Subsidiaries
which is not being actively contested by Holdings or such Subsidiary in good faith and by
appropriate proceedings; provided, such reserves or other appropriate provisions, if any,
as shall be required in conformity with GAAP shall have been made or provided therefore.



     4.13. Properties.



          (a) Title. Each of Holdings and its Subsidiaries has (i) good, sufficient and legal
title to (in the case of fee interests in real property), (ii) valid leasehold interests in (in the
case of leasehold interests in real or personal property), and (iii) good title to (in the case of
all other personal property), all of their respective properties and assets reflected in their
respective Historical Financial Statements referred to in Section 4.7 and in the most recent
financial statements delivered pursuant to Section 5.1, in each case except for assets disposed of
since the date of such financial statements in the ordinary course of business or as otherwise
permitted under Section 6.9. Except as permitted by this Agreement, all such properties and assets
are free and clear of Liens.




          (b) Real Estate. As of the Effective Date, Schedule 4.13 contains a true, accurate
and complete list of (i) all Real Estate Assets, and (ii) all leases, subleases or assignments of
leases (together with all amendments, modifications, supplements, renewals or extensions of any
thereof) affecting each Real Estate Asset of any Credit Party, regardless of whether such Credit
Party is the landlord or tenant (whether directly or as an assignee or successor in interest) under
such lease, sublease or assignment. Each agreement listed in Schedule 4.13 is in full force and
effect and Holdings does not have knowledge of any default that has occurred and is continuing
thereunder, and each such agreement constitutes the legally valid and binding obligation of each
applicable Credit Party, enforceable against such Credit Party in accordance with its terms, except
as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors’ rights generally or by equitable principles.




     4.14. Environmental Matters. Neither Holdings nor any of its Subsidiaries nor any of their
respective Facilities or operations are subject to any outstanding written order, consent decree or
settlement agreement with any Person relating to any Environmental Law, any Environmental Claim, or
any Hazardous Materials Activity that, individually or in the aggregate, could reasonably be
expected
to have a Material Adverse Effect. Neither Holdings nor any of its Subsidiaries has received
any letter or request for information under Section 104 of the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. § 9604) or any comparable state law. There
are and, to each of Holdings’ and its Subsidiaries’



71









 




knowledge, have been, no conditions,
occurrences, or Hazardous Materials Activities which could reasonably be expected to form the basis
of an Environmental Claim against Holdings or any of its Subsidiaries that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect. Neither Holdings nor
any of its Subsidiaries nor, to any Credit Party’s knowledge, any predecessor of Holdings or any of
its Subsidiaries has filed any notice under any Environmental Law indicating past or present
treatment of Hazardous Materials at any Facility, and none of Holdings’ or any of its Subsidiaries’
operations involves the generation, transportation, treatment, storage or disposal of hazardous
waste, as defined under 40 C.F.R. Parts 260-270 or any state equivalent in violation of law.
Compliance with all current or reasonably foreseeable future requirements pursuant to or under
Environmental Laws could not be reasonably expected to have, individually or in the aggregate, a
Material Adverse Effect. No event or condition has occurred or is occurring with respect to
Holdings or any of its Subsidiaries relating to any Environmental Law, any Release of Hazardous
Materials, or any Hazardous Materials Activity which individually or in the aggregate has had, or
could reasonably be expected to have, a Material Adverse Effect.




     4.15. No Defaults. Neither Holdings nor any of its Subsidiaries is in default in the
performance, observance or fulfillment of any of the obligations, covenants or conditions contained
in any of its Contractual Obligations, and no condition exists 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.



     4.16. Material Contracts. Schedule 4.16 contains a true, correct and complete list of all the
Material Contracts in effect on the Effective Date, and except as described thereon, all such
Material Contracts are in full force and effect and no defaults in any material respect currently
exist thereunder.



     4.17. Governmental Regulation. Neither Holdings nor any of its Subsidiaries is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal Power Act or the
Investment Company Act of 1940 or under any other federal or state statute or regulation which may
limit its ability to incur Indebtedness or which may otherwise render all or any portion of the
Obligations unenforceable. Neither Holdings nor any of its Subsidiaries is a “registered
investment company” or a company “controlled” by a “registered investment company” or a “principal
underwriter” of a “registered investment company” as such terms are defined in the Investment
Company Act of 1940.



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



     4.19. Employee Matters. Neither Holdings nor any of its Subsidiaries is engaged in any unfair
labor practice that could reasonably be expected to have a Material Adverse Effect.



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There is (a)
no unfair labor practice complaint pending against Holdings or any of its Subsidiaries, or to the
best knowledge of Holdings and Company, threatened against any of them before the National Labor
Relations Board and no grievance or arbitration proceeding arising out of or under any collective
bargaining agreement that is so pending against Holdings or any of its Subsidiaries or to the best
knowledge of Holdings and Company, threatened against any of them, (b) no strike or work stoppage
in existence or threatened involving Holdings or any of its Subsidiaries that could reasonably be
expected to have a Material Adverse Effect, and (c) to the best knowledge of Holdings and Company,
no union representation question existing with respect to the employees of Holdings or any of its
Subsidiaries and, to the best knowledge of Holdings and Company, no union organization activity
that is taking place, except (with respect to any matter specified in clause (a), (b) or (c) above,
either individually or in the aggregate) such as is not reasonably likely to have a Material
Adverse Effect.




     4.20. Employee Benefit Plans. Holdings, each of its Subsidiaries and each of their respective
ERISA Affiliates are in substantial compliance with all applicable provisions and requirements of
ERISA and the Internal Revenue Code and the regulations and published interpretations thereunder
with respect to each Employee Benefit Plan, and have substantially performed all their obligations
under each Employee Benefit Plan. Each Employee Benefit Plan which is intended to qualify under
Section 401(a) of the Internal Revenue Code has received a favorable determination letter from the
Internal Revenue Service indicating that such Employee Benefit Plan is so qualified and nothing has
occurred subsequent to the issuance of such determination letter which would cause such Employee
Benefit Plan to lose its qualified status. No liability to the PBGC (other than required premium
payments), the Internal Revenue Service, any Employee Benefit Plan or any trust established under
Title IV of ERISA has been or is expected to be incurred by Holdings, any of its Subsidiaries or
any of their ERISA Affiliates other than contribution and expense reimbursement in the ordinary
course. No ERISA Event has occurred or is reasonably expected to occur. Except to the extent
disclosed on Schedule 4.20 or as required under Section 4980B of the Internal Revenue Code or
similar state laws, no Employee Benefit Plan provides health or welfare benefits (through the
purchase of insurance or otherwise) for any retired or former employee of Holdings, any of its
Subsidiaries or any of their respective ERISA Affiliates. The present value of the aggregate
benefit liabilities under each Pension Plan sponsored or maintained by Holdings, any of its
Subsidiaries or any of their ERISA Affiliates, (determined as of the end of the most recent plan
year on the basis of the actuarial assumptions specified for funding purposes in the most recent
actuarial valuation for such Pension Plan), did not exceed the aggregate current value of the
assets of such Pension Plan. As of the most recent valuation date for each Multiemployer Plan for
which the actuarial report is available, the potential liability
of Holdings, its Subsidiaries and their respective ERISA Affiliates for a complete withdrawal
from such Multiemployer Plan (within the meaning of Section 4203 of ERISA), when aggregated with
such potential liability for a complete withdrawal from all Multiemployer Plans, based on
information available pursuant to Section 4221(e) of ERISA, does not exceed $1,500,000. Holdings,
each of its Subsidiaries and each of their ERISA Affiliates have complied with the requirements of
Section 515 of ERISA with respect to each Multiemployer Plan and are not in material “default” (as
defined in Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan.



     4.21. Certain Fees. No broker’s or finder’s fee or commission will be payable with respect
hereto or any of the transactions contemplated hereby.



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



     4.23. Related Agreements.



          (a) Delivery. Holdings and Company have delivered to Syndication Agent and
Administrative Agent complete and correct copies of (i) each Related Agreement and of all exhibits
and schedules thereto as of the date hereof and (ii) copies of any material amendment, restatement,
supplement or other modification to or waiver of each Related Agreement entered into after the date
hereof.




          (b) Representations and Warranties. Except to the extent otherwise expressly set
forth herein or in the schedules hereto, and subject to the qualifications set forth therein, each
of the representations and warranties given by any Credit Party in any Related Agreement is true
and correct in all material respects as of the Effective Date (or as of any earlier date to which
such representation and warranty specifically relates). Notwithstanding anything in the Related
Agreement to the contrary, the representations and warranties of each Credit Party set forth in
this Section 4.23 shall, solely for purposes hereof, survive the Effective Date for the benefit of
Lenders.




          (c) Governmental Approvals. All Governmental Authorizations and all other
authorizations, approvals and consents of any other Person required by the Related Agreements have
been obtained and are in full force and effect.



     4.24. Compliance with Statutes, etc. Each of Holdings and its Subsidiaries is in compliance
with all applicable statutes, regulations and orders of, and all applicable restrictions imposed
by, all Governmental Authorities, in respect of the conduct of its business and the ownership of
its property (including compliance with all applicable Environmental Laws with respect to any Real
Estate Asset or
governing its business and the requirements of any permits issued under such Environmental
Laws with respect to any such Real Estate Asset or the operations of Holdings or any of its
Subsidiaries), except such non-compliance that could not reasonably be expected to result in a
Material Adverse Effect.



     4.25. Disclosure. No representation or warranty of any Credit Party contained in any Credit
Document or in any other documents, certificates or written statements furnished to Lenders by or
on behalf of Holdings or any of its Subsidiaries for use in connection with the transactions
contemplated hereby contains any untrue statement of a material fact or omits to state a material
fact (known to Holdings or Company, in the case of any document not furnished by either of them)
necessary in order to make the statements contained herein or therein not misleading in light of
the circumstances in which the same were made. Any projections and pro forma financial information
contained in such materials are based upon good faith estimates and assumptions believed by
Holdings or Company to be reasonable at the time made, it being recognized by Lenders that such
projections as to future events are not to be viewed as facts and that actual results during the
period or periods covered by any such projections may differ from the projected results. There are
no facts known (or which should upon the reasonable exercise of diligence be known) to Holdings or
Company (other than matters of a general economic nature)



74









 




that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect and that have not been
disclosed herein or in such other documents, certificates and statements furnished to Lenders for
use in connection with the transactions contemplated hereby.




     4.26. Existing Seller Subordinated Notes and Existing Earn-Out Obligations. Holdings and
Company have delivered to Syndication Agent and Administrative Agent complete and correct copies of
(i) each document evidencing the Existing Seller Subordinated Notes and the Existing Earn-Out
Obligations and (ii) copies of any amendment, restatement, supplement or other modification to or
waiver of any such document entered into after the date hereof.



SECTION 5. AFFIRMATIVE COVENANTS




     Each Credit Party covenants and agrees that so long as any Commitment is in effect and until
payment in full of all Obligations and cancellation or expiration of all Letters of Credit, each
Credit Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Section 5.



     5.1. Financial Statements and Other Reports. Holdings will deliver to Administrative Agent
and Lenders:



          (a) Monthly Reports. As soon as available, and in any event within thirty (30) days
after the end of each month ending after the Effective Date, the consolidated balance sheet of
Holdings and its Subsidiaries as at the end of such month and the related consolidated
statements of income, members’ equity and cash flows of Holdings and its Subsidiaries for such
month and for the period from the beginning of the then current Fiscal Year to the end of such
month, setting forth in each case in comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year and the corresponding figures from the Financial
Plan for the current Fiscal Year, to the extent prepared on a monthly basis, all in reasonable
detail, together with a Financial Officer Certification and a Narrative Report with respect
thereto;




          (b) Quarterly Financial Statements. As soon as available, and in any event within
forty-five (45) days after the end of each of the first three Fiscal Quarters of each Fiscal Year,
the consolidated and consolidating balance sheets of Holdings and its Subsidiaries as at the end of
such Fiscal Quarter and the related consolidated (and with respect to statements of income,
consolidating) statements of income, members’ equity and cash flows of Holdings and its
Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current
Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding periods of the previous Fiscal Year and the
corresponding figures from the Financial Plan for the current Fiscal Year, all in reasonable
detail, together with a Financial Officer Certification and a Narrative Report with respect
thereto;




          (c) Annual Financial Statements. As soon as available, and in any event within ninety
(90) days after the end of each Fiscal Year, (i) the consolidated and consolidating balance sheets
of Holdings and its Subsidiaries as at the end of such Fiscal Year and the related consolidated
(and with respect to statements of income, consolidating) statements of income,




75









 







members’ equity and
cash flows of Holdings and its Subsidiaries for such Fiscal Year, setting forth in each case in
comparative form the corresponding figures for the previous Fiscal Year and the corresponding
figures from the Financial Plan for the Fiscal Year covered by such financial statements, in
reasonable detail, together with a Financial Officer Certification and a Narrative Report with
respect thereto; and (ii) with respect such consolidated financial statements a report thereon of
PricewaterhouseCoopers LLP or other independent certified public accountants of recognized national
standing selected by Holdings, and reasonably satisfactory to Administrative Agent (which report
shall be unqualified as to going concern and scope of audit, and shall state that such consolidated
financial statements fairly present, in all material respects, the consolidated financial position
of Holdings and its Subsidiaries as at the dates indicated and the results of their operations and
their cash flows for the periods indicated in conformity with GAAP applied on a basis consistent
with prior years (except as otherwise disclosed in such financial statements) and that the
examination by such accountants in connection with such consolidated financial statements has been
made in accordance with generally accepted auditing standards) together with a written statement by
such independent certified public accountants stating (1) that their audit examination has included
a review of the terms of the Credit Documents, (2) whether, in connection therewith, any condition
or event that constitutes a Default or an Event of Default has come to their attention and, if such
a condition or event has come to their attention, specifying the nature and period of existence
thereof, and (3) that nothing has come to their attention that causes them to believe that the
information contained in any Compliance Certificate is not correct or that the matters set forth in
such Compliance Certificate are not stated in accordance with the terms hereof;




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




          (e) Statements of Reconciliation after Change in Accounting Principles. If, as a
result of any change in accounting principles and policies from those used in the preparation of
the Historical Financial Statements, the consolidated financial statements of Holdings and its
Subsidiaries delivered pursuant to Section 5.1(b) or 5.1(c) will differ in any material respect
from the consolidated financial statements that would have been delivered pursuant to such
subdivisions had no such change in accounting principles and policies been made, then, together
with the first delivery of such financial statements after such change, one or more statements of
reconciliation for all such prior financial statements in form and substance satisfactory to
Administrative Agent;




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




76









 







condition, and what action
Company has taken, is taking and proposes to take with respect thereto;




          (g) Notice of Litigation. Promptly upon any officer of Holdings or Company obtaining
knowledge of (i) the institution of, or non-frivolous threat of, any Adverse Proceeding not
previously disclosed in writing by Company to Lenders, or (ii) any material development in any
Adverse Proceeding that, in the case of either (i) or (ii) if adversely determined, could be
reasonably expected to have a Material Adverse Effect, or seeks to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as a result of, the transactions
contemplated hereby, written notice thereof together with such other information as may be
reasonably available to Holdings or Company to enable Lenders and their counsel to evaluate such
matters;




          (h) ERISA. (i) Promptly upon becoming aware of the occurrence of or forthcoming
occurrence of any ERISA Event, a written notice specifying the nature thereof, what action
Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates has taken, is taking
or proposes to take with respect thereto and, when known, any action taken or threatened by the
Internal Revenue Service, the Department of Labor or the PBGC with respect thereto; and (ii) with
reasonable promptness, copies of (1) each Schedule B (Actuarial Information) to the annual report
(Form 5500 Series) filed by Holdings, any of its Subsidiaries or any of their respective ERISA
Affiliates with the Internal Revenue Service with respect to each Pension Plan; (2) all notices
received by Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates from a
Multiemployer Plan sponsor concerning an ERISA Event; and (3)
copies of such other documents or governmental reports or filings relating to any Employee
Benefit Plan as Administrative Agent shall reasonably request;




          (i) Financial Plan. As soon as practicable and in any event no later than thirty (30)
days after the beginning of each Fiscal Year, a consolidated plan and financial forecast for such
Fiscal Year and each Fiscal Year (or portion thereof) through the final maturity date of the Loans
(a “Financial Plan"), including (i) a forecasted consolidated balance sheet and forecasted
consolidated statements of income and cash flows of Holdings and its Subsidiaries for each such
Fiscal Year, together with pro forma Compliance Certificates for each such Fiscal Year and an
explanation of the assumptions on which such forecasts are based, (ii) forecasted consolidated
statements of income and cash flows of Holdings and its Subsidiaries for each month of such Fiscal
Year, (iii) forecasts demonstrating projected compliance with the requirements of Section 6.8
through the final maturity date of the Loans and (iv) forecasts demonstrating adequate liquidity
through the final maturity date of the Loans without giving effect to any additional debt or equity
offerings not reflected in the Projections, together, in each case, with an explanation of the
assumptions on which such forecasts are based all in form and substance reasonably satisfactory to
Agents;




          (j) Insurance Report. As soon as practicable and in any event by the last day of each
Fiscal Year, a report in form and substance satisfactory to Administrative Agent outlining all
material insurance coverage maintained as of the date of such report by Holdings and its
Subsidiaries and all material insurance coverage planned to be maintained by Holdings and its
Subsidiaries in the immediately succeeding Fiscal Year;




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          (k) Notice of Change in Managers or Board of Advisors. With reasonable promptness,
written notice of any change in the managers or board of advisors (or similar governing body) of
Holdings or Company;




          (l) Notice Regarding Material Contracts. Promptly, and in any event within ten
Business Days (i) after any Material Contract of Holdings or any of its Subsidiaries is terminated
or amended in a manner that is materially adverse to Holdings or such Subsidiary, as the case may
be, or (ii) any new Material Contract is entered into, a written statement describing such event,
with copies of such material amendments or new contracts, delivered to Administrative Agent (to the
extent such delivery is permitted by the terms of any such Material Contract, provided, no such
prohibition on delivery shall be effective if it were bargained for by Holdings or its applicable
Subsidiary with the intent of avoiding compliance with this Section 5.1(l));




          (m) Environmental Reports and Audits. As soon as practicable following receipt
thereof, copies of all environmental audits and reports with respect to environmental matters at
any Facility or which relate to any environmental liabilities of Holdings or its Subsidiaries
which, in any such case, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect;




          (n) Information Regarding Collateral. (a) Company will furnish to Collateral Agent
prompt written notice of any change (i) in any Credit Party’s corporate name, (ii) in any Credit
Party’s identity or corporate structure or (iii) in any Credit Party’s Federal Taxpayer
Identification Number. Company agrees not to effect or permit any change referred to in the
preceding sentence unless all filings have been made under the Uniform Commercial Code or
otherwise that are required in order for Collateral Agent to continue at all times following such
change to have a valid, legal and perfected security interest in all the Collateral and for the
Collateral at all times following such change to have a valid, legal and perfected security
interest as contemplated in the Collateral Documents. Company also agrees promptly to notify
Collateral Agent if any material portion of the Collateral is damaged or destroyed;




          (o) Annual Collateral Verification. Each year, at the time of delivery of annual
financial statements with respect to the preceding Fiscal Year pursuant to Section 5.1(c), Company
shall deliver to Collateral Agent an Officer’s Certificate (i) either confirming that there has
been no material change in such information since the date of the Collateral Questionnaire
delivered on the Closing Date or the date of the most recent certificate delivered pursuant to this
Section and/or identifying such changes and (ii) certifying that all Uniform Commercial Code
financing statements (including fixtures filings, as applicable) or other appropriate filings,
recordings or registrations, have been filed of record in each governmental, municipal or other
appropriate office in each jurisdiction identified pursuant to clause (i) above to the extent
necessary to protect and perfect the security interests under the Collateral Documents for a period
of not less than 18 months after the date of such certificate (except as noted therein with respect
to any continuation statements to be filed within such period); and




          (p) Other Information. (A) Promptly upon their becoming available, copies of (i) all
financial statements, reports, notices and proxy statements sent or made available generally by
Holdings to its security holders acting in such capacity or by any Subsidiary of Holdings to its
security holders other than Holdings or another Subsidiary of Holdings, (ii) all regular and




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periodic reports and all registration statements and prospectuses, if any, filed by Holdings or any
of its Subsidiaries with any securities exchange or with the Securities and Exchange Commission or
any governmental or private regulatory authority, (iii) 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, and (B) such other information
and data with respect to Holdings or any of its Subsidiaries as from time to time may be reasonably
requested by Administrative Agent or any Lender.




     5.2. Existence. Except as otherwise permitted under Section 6.9, each Credit Party will, and
will cause each of its Subsidiaries to, at all times preserve and keep in full force and effect its
existence and all rights and franchises, licenses and permits material to its business;
provided, no Credit Party or any of its Subsidiaries shall be required to preserve any such
existence, right or franchise, licenses and permits if such Person’s board of directors (or similar
governing body) shall determine that the preservation thereof is no longer desirable in the conduct
of the business of such Person, and that the loss thereof is not disadvantageous in any material
respect to such Person or to Lenders.



     5.3. Payment of Taxes and Claims. Each Credit Party will, and will cause each of its
Subsidiaries to, pay all Taxes imposed upon it or any of its properties or assets or in respect of
any of its income, businesses or
franchises before any penalty or fine accrues thereon, and all claims (including claims for
labor, services, materials and supplies) for sums that have become due and payable and that by law
have or may become a Lien upon any of its properties or assets, prior to the time when any penalty
or fine shall be incurred with respect thereto; provided, no such Tax or claim need be paid
if it is being contested in good faith by appropriate proceedings promptly instituted and
diligently conducted, so long as (a) adequate reserve or other appropriate provision, as shall be
required in conformity with GAAP shall have been made therefore, and (b) in the case of a Tax or
claim which has or may become a Lien against any of the Collateral, such contest proceedings
conclusively operate to stay the sale of any portion of the Collateral to satisfy such Tax or
claim. No Credit Party will, nor will it permit any of its Subsidiaries to, file or consent to the
filing of any consolidated income tax return with any Person (other than Holdings or any of its
Subsidiaries).



     5.4. Maintenance of Properties. Each Credit Party will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained in good repair, working order and condition,
ordinary wear and tear excepted, all material properties used or useful in the business of Holdings
and its Subsidiaries and from time to time will make or cause to be made all appropriate repairs,
renewals and replacements thereof.



     5.5. Insurance. Holdings will maintain or cause to be maintained, with financially sound and
reputable insurers, such public liability insurance, third party property damage insurance,
business interruption insurance and casualty insurance with respect to liabilities, losses or
damage in respect of the assets, properties and businesses of Holdings and its Subsidiaries as may
customarily be carried or maintained under similar circumstances by Persons of established
reputation engaged in similar businesses, in each case in such amounts (giving effect to
self-insurance), with such deductibles, covering such risks and otherwise on such terms and
conditions as shall be customary for such Persons. Without limiting the generality of the
foregoing, Holdings will maintain or cause to be maintained (a) flood insurance with respect to



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each Flood Hazard Property that is located in a community that participates in the National Flood
Insurance Program, in each case in compliance with any applicable regulations of the Board of
Governors of the Federal Reserve System, and (b) replacement value casualty insurance on the
Collateral under such policies of insurance, with such insurance companies, in such amounts, with
such deductibles, and covering such risks as are at all times carried or maintained under similar
circumstances by Persons of established reputation engaged in similar businesses. Each such policy
of insurance shall (i) name Administrative Agent, on behalf of Lenders 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, satisfactory in form and substance to Administrative
Agent, that names Administrative Agent, on behalf of Lenders as the loss payee thereunder and
provides for at least thirty days’ prior written notice to Administrative Agent of any modification
or cancellation of such policy.




     5.6. Inspections Each Credit Party will, and will cause each of its Subsidiaries to, permit any authorized
representatives designated by any Lender to visit and inspect any of the properties of any Credit
Party and any of its respective Subsidiaries, to inspect, copy and take extracts from its and their
financial and accounting records, and to discuss its and their affairs, finances and accounts with
its and their officers and independent public accountants, all upon reasonable notice and at such
reasonable times during normal business hours and as often as may reasonably be requested.



     5.7. Lenders Meetings. Holdings and Company will, upon the request of Administrative Agent or
Requisite Lenders, participate in a meeting of Administrative Agent and Lenders once during each
Fiscal Year to be held at Company’s corporate offices (or at such other location as may be agreed
to by Company and Administrative Agent) at such time as may be agreed to by Company and
Administrative Agent.



     5.8. Compliance with Laws. Each Credit Party will comply, and shall cause each of its
Subsidiaries and all other Persons, if any, on or occupying any Facilities to comply, with the
requirements of all applicable laws, rules, regulations and orders of any Governmental Authority
(including all Environmental Laws), noncompliance with which could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.



     5.9. Environmental.



          (a) Environmental Disclosure. Holdings will deliver to Administrative Agent and
Lenders:





          (i) as soon as practicable following receipt thereof, copies of all environmental
audits, investigations, analyses and reports of any kind or character, whether prepared by
personnel of Holdings or any of its Subsidiaries or by independent consultants, Governmental
Authorities or any other Persons, with respect to environmental matters at any Facility
which could reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect or with respect to any Environmental Claims which could reasonably
be expected to have, either individually or in the aggregate, a Material Adverse Effect;



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          (ii) promptly upon the occurrence thereof, written notice describing in reasonable
detail (1) any Release required to be reported to any federal, state or local governmental
or regulatory agency under any applicable Environmental Laws, (2) any remedial action taken
by Holdings or any other Person in response to (A) any Hazardous Materials Activities the
existence of which has a reasonable possibility of resulting in one or more Environmental
Claims having, individually or in the aggregate, a Material Adverse Effect, or (B) any
Environmental Claims that, individually or in the aggregate, have a reasonable possibility
of resulting in a Material Adverse Effect, and (3) Holdings or Company’s discovery of any
occurrence or condition on any real property adjoining or
in the vicinity of any Facility that could cause such Facility or any part thereof to
be subject to any material restrictions on the ownership, occupancy, transferability or use
thereof under any Environmental Laws;




          (iii) as soon as practicable following the sending or receipt thereof by Holdings or
any of its Subsidiaries, a copy of any and all written communications with respect to (1)
any Environmental Claims that, individually or in the aggregate, have a reasonable
possibility of giving rise to a Material Adverse Effect, (2) any Release required to be
reported to any federal, state or local governmental or regulatory agency, and (3) any
request for information from any governmental agency that suggests such agency is
investigating whether Holdings or any of its Subsidiaries may be potentially responsible for
any material Hazardous Materials Activity;




          (iv) prompt written notice describing in reasonable detail (1) any proposed acquisition
of stock, assets, or property by Holdings or any of its Subsidiaries that could reasonably
be expected to (A) expose Holdings or any of its Subsidiaries to, or result in,
Environmental Claims that could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect or (B) affect the ability of Holdings or any of its
Subsidiaries to maintain in full force and effect all material Governmental Authorizations
required under any Environmental Laws for their respective operations and (2) any proposed
action to be taken by Holdings or any of its Subsidiaries to modify current operations in a
manner that could reasonably be expected to subject Holdings or any of its Subsidiaries to
any additional material obligations or requirements under any Environmental Laws; and




          (v) with reasonable promptness, such other documents and information as from time to
time may be reasonably requested by Administrative Agent in relation to any matters
disclosed pursuant to this Section 5.9(a).



          (b) Hazardous Materials Activities, Etc. Each Credit Party shall promptly take, and
shall cause each of its Subsidiaries promptly to take, any and all actions necessary to (i) cure
any violation of applicable Environmental Laws by such Credit Party or its Subsidiaries that could
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and
(ii) make an appropriate response to any Environmental Claim against such Credit Party or any of
its Subsidiaries and discharge any obligations it may have to any Person thereunder where failure
to do so could reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect.




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     5.10. Subsidiaries. In the event that any Person becomes a Domestic Subsidiary of Company,
Company shall (a) promptly cause such Domestic Subsidiary to become a Guarantor hereunder and a
Grantor under the Pledge and Security Agreement by executing and delivering to Administrative Agent
and Collateral Agent a Counterpart Agreement, and (b) take all such actions and execute and
deliver, or cause to be executed and delivered, all such documents, instruments, agreements, and
certificates as are similar to those described in Sections 3.1(b), 3.1(i) (with respect to a
Material Real Estate Asset), 3.1(j), 3.1(k) and 3.1(n). In the event that any Person becomes a
Foreign Subsidiary of Company, and the ownership interests of such Foreign Subsidiary are
owned by Company or by any Domestic Subsidiary thereof, Company shall, or shall cause such Domestic
Subsidiary to, deliver, all such documents, instruments, agreements, and certificates as are
similar to those described in Sections 3.1(b), and Company shall take, or shall cause such Domestic
Subsidiary to take, all of the actions referred to in Section 3.1(j)(i) necessary to grant and to
perfect a first priority Lien in favor of Collateral Agent, for the benefit of Secured Parties,
under the Pledge and Security Agreement in 65% of such ownership interests. With respect to each
such Subsidiary, Company shall promptly send to Administrative Agent written notice setting forth
with respect to such Person (i) the date on which such Person became a Subsidiary of Company, and
(ii) all of the data required to be set forth in Schedules 4.1 and 4.2 with respect to all
Subsidiaries of Company; provided, such written notice shall be deemed to supplement
Schedule 4.1 and 4.2 for all purposes hereof.



     5.11. Additional Material Real Estate Assets. In the event that any Credit Party acquires a
Material Real Estate Asset or a Real Estate Asset owned or leased on the Effective Date becomes a
Material Real Estate Asset and such interest has not otherwise been made subject to the Lien of the
Collateral Documents in favor of Collateral Agent, for the benefit of Secured Parties, then such
Credit Party, contemporaneously with acquiring such Material Real Estate Asset, shall take all such
actions and execute and deliver, or cause to be executed and delivered, all such mortgages,
documents, instruments, agreements, opinions and certificates similar to those described in
Sections 3.1(i), 3.1(j) and 3.1(k) with respect to each such Material Real Estate Asset that
Collateral Agent shall reasonably request to create in favor of Collateral Agent, for the benefit
of Secured Parties, a valid and, subject to any filing and/or recording referred to herein,
perfected first priority security interest in such Material Real Estate Assets. In addition to the
foregoing, Company shall, at the request of Requisite Lenders, deliver, from time to time, to
Administrative Agent such appraisals as are required by law or regulation of Real Estate Assets
with respect to which Collateral Agent has been granted a Lien.



     5.12. Interest Rate Protection. No later than ninety (90) days following the Effective Date,
Company shall maintain, or caused to be maintained, in effect one or more Interest Rate Agreements
for a term of not less than three years and otherwise in form and substance reasonably satisfactory
to Administrative Agent and Syndication Agent, such that not less than an aggregate notional
principal amount of 40% of the aggregate principal amount of the Term Loans outstanding from time
to time (based on the assumption that such notional principal amount was a Eurodollar Rate Loan
with an Interest Period of three months).



     5.13. Further Assurances. At any time or from time to time upon the request of Administrative
Agent, each Credit Party will, at its expense, promptly execute, acknowledge and deliver such
further documents and do such other acts and things as Administrative Agent or Collateral Agent may
reasonably request in order to effect fully the purposes of the Credit



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Documents, including
providing Lenders with any information requested pursuant to Section 10.21. In furtherance and not
in limitation of the foregoing, each Credit Party shall take such actions as Administrative Agent
or Collateral Agent may reasonably request from time to time to ensure that the Obligations are
guarantied by the Guarantors and are secured by substantially all of the assets of Holdings, and
its Subsidiaries and all of the outstanding Capital Stock of Company and its Subsidiaries (subject
to limitations contained in the Credit Documents with respect to Foreign Subsidiaries).




     5.14. Miscellaneous Business Covenants. Unless otherwise consented to by Agents or Requisite
Lenders:



          (a) Non-Consolidation. Holdings will and will cause each of its Subsidiaries to: (i)
maintain entity records and books of account separate from those of any other entity which is an
Affiliate of such entity; (ii) not commingle its funds or assets with those of any other entity
which is an Affiliate of such entity; and (iii) provide that its board of directors or other
analogous governing body will hold all appropriate meetings to authorize and approve such entity’s
actions, which meetings will be separate from those of other entities.




          (b) Cash Management Systems. Holdings and its subsidiaries shall establish and
maintain cash management systems with a Lender reasonably acceptable to Agents.




          (c) Filing of Agreement. No later than the earlier of the next filing of a quarterly
report on Form 10Q or annual report on Form 10K, provided that Holdings or any of its
Subsidiaries is otherwise required to file periodic reports with the Securities and Exchange
Commission, Holdings or such Subsidiaries shall file a copy of this Agreement and the schedules
hereto as a material contract with the Securities and Exchange Commission.




     5.15. Post-Closing Items. Company shall take all such actions to deliver and/or execute the
certificates or documents set forth on Schedule 5.15 within the time frames specified on Schedule
5.15; provided that any of the initial time frames set forth on Schedule 5.15 may be
extended by an additional thirty (30) days with the consent of the Administrative Agent.



     5.16. Restructuring. No later than January 31, 2006, Company and Holdings shall have completed the
Restructuring. In the event the Restructuring is not completed by such time or any of the entities
listed on Schedule 5.16 remain Subsidiaries of Company after such date, Company shall deliver to
Administrative Agent those documents that otherwise would have been delivered on the Effective Date
pursuant to Section 3.1 for each such Subsidiary.



SECTION 6. NEGATIVE COVENANTS




     Each Credit Party covenants and agrees that, so long as any Commitment is in effect and until
payment in full of all Obligations and cancellation or expiration of all Letters of Credit, such
Credit Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Section 6.




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     6.1. Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly
or indirectly liable with respect to any Indebtedness, except:



          (a) the Obligations;




          (b) (x) Indebtedness of any Guarantor Subsidiary to Company or to any other Guarantor
Subsidiary, or of Company to any Guarantor Subsidiary; provided, (i) all such Indebtedness
shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien
pursuant to the Pledge and Security Agreement, (ii) all such Indebtedness shall be unsecured and
subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of
the applicable promissory notes or an intercompany subordination agreement that in any such case,
is reasonably satisfactory to Administrative Agent, and (iii) any payment by any such Guarantor
Subsidiary under any guaranty of the Obligations shall result in a pro tanto reduction of the
amount of any Indebtedness owed by such Subsidiary to Company or to any of its Subsidiaries for
whose benefit such payment is made; and (y) Indebtedness of any Subsidiary of Company which is not
a Guarantor Subsidiary to any other Subsidiary of Company that is not a Guarantor Subsidiary;




          (c) (i) Indebtedness of Company or any of its Subsidiaries under any Seller Subordinated Notes
and under any Earn-Out Obligations and (ii) Indebtedness of Holdings under any Investor Notes;




          (d) Indebtedness incurred by Holdings or any of its Subsidiaries arising from agreements
providing for indemnification, adjustment of purchase price or similar obligations, or from
guaranties or letters of credit, surety bonds or performance bonds securing the performance of
Company or any such Subsidiary pursuant to such agreements, in connection with Permitted
Acquisitions or permitted dispositions of any business, assets or Subsidiary of Holdings or any of
its Subsidiaries;




          (e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety,
statutory, appeal or similar obligations incurred in the ordinary course of business;




          (f) Indebtedness in respect of netting services, overdraft protections and otherwise in
connection with deposit accounts;




          (g) guaranties in the ordinary course of business of the obligations of suppliers, customers,
franchisees and licensees of Holdings and its Subsidiaries;




          (h) guaranties by Company of Indebtedness of a Guarantor Subsidiary or guaranties by a
Subsidiary of Company of Indebtedness of Company or a Guarantor Subsidiary with respect, in each
case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1;




          (i) Indebtedness described in Schedule 6.1, but not any extensions, renewals or replacements
of such Indebtedness;




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          (j) Indebtedness with respect to Capital Leases in an aggregate amount not to exceed at any
time $45,000,000;




          (k) purchase money Indebtedness in an aggregate amount not to exceed at any time $3,000,000
(including any Indebtedness acquired in connection with a Permitted Acquisition); provided,
any such Indebtedness (i) shall be secured only to the asset acquired in connection with the
incurrence of such Indebtedness, and (ii) shall constitute not less than 100% of the aggregate
consideration paid with respect to such asset;




          (l) (i) Indebtedness of Company with respect to Additional Seller Subordinated Notes in an
aggregate amount not to exceed $40,000,000 at any time and (ii) Indebtedness of Company and ARC
Acquisition Corporation with respect to the Existing Seller Subordinated Notes;




          (m) (i) Indebtedness of Company with respect to Additional Earn-Out Obligations;
provided that such Additional Earn-Out Obligations also conform to the requirements of
clause (iv) of the definition of Permitted Acquisition and (ii) Indebtedness of Company and ARC
Acquisition Corporation with respect to Existing Earn-Out Obligations;




          (n) Indebtedness of Holdings with respect to any Investor Notes; and




          (o) other unsecured Indebtedness of Holdings and its Subsidiaries in an aggregate amount not
to exceed at any time $5,000,000.




     6.2. Liens. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly
or indirectly, create, incur, assume or permit to exist any Lien on or with respect to any property
or asset of any kind (including any document or instrument in respect of goods or accounts
receivable) of Holdings or any of its Subsidiaries, whether now owned or hereafter acquired, or any
income or profits therefrom, or file or permit the filing of, or permit to remain in effect, any
financing statement or other similar notice of any Lien with respect to any such property, asset,
income or profits under the UCC of any State or under any similar recording or notice statute,
except:



          (a) Liens in favor of Collateral Agent for the benefit of Secured Parties granted pursuant to
any Credit Document;




          (b) Liens for Taxes if obligations with respect to such Taxes are being contested in good
faith by appropriate proceedings promptly instituted and diligently conducted, so long as such
reserves or other appropriate provisions, if any, as shall be required by GAAP shall have been made
for any such contested amounts;




          (c) statutory Liens of landlords, banks (and rights of set-off), of carriers, warehousemen,
mechanics, repairmen, workmen and materialmen, and other Liens imposed by law (other than any such
Lien imposed pursuant to Section 401 (a)(29) or 412(n) of the Internal
Revenue Code or by ERISA), in each case incurred in the ordinary course of business (i) for
amounts not yet overdue or (ii) for amounts that are overdue and that (in the case of any such
amounts overdue for a period in excess of five days) are being contested in good faith by




85









 







appropriate proceedings, so long as such reserves or other appropriate provisions, if any, as shall
be required by GAAP shall have been made for any such contested amounts;




          (d) Liens incurred or deposits made in the ordinary course of business in connection with
workers’ compensation, unemployment insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government
contracts, trade contracts, performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money or other Indebtedness), so long as no
foreclosure, sale or similar proceedings have been commenced with respect to any portion of the
Collateral on account thereof;




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




          (f) any interest or title of a lessor or sublessor under any lease of real estate permitted
hereunder;




          (g) Liens solely on any cash earnest money deposits made by Holdings or any of its
Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder;




          (h) purported Liens evidenced by the filing of precautionary UCC financing statements relating
solely to operating and capital leases of personal property entered into in the ordinary course of
business;




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




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




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




          (l) Liens incurred in connection with the purchase or shipping of goods or assets on the
related assets and proceeds thereof in favor of the seller or shipper of such goods or assets;




          (m) Liens described in Schedule 6.2 or on a title report delivered pursuant to Section
3.1(i)(iv);




          (n) Liens securing Indebtedness permitted pursuant to 6.1(i) and in existence as of the
Closing Date;




          (o) Liens securing Indebtedness permitted pursuant to 6.1(k); provided, any such Lien
shall encumber only the asset acquired with the proceeds of such Indebtedness; and




86









 








          (p) other Liens on assets other than the Collateral securing Indebtedness in an aggregate
amount not to exceed $500,000 at any time outstanding.




     6.3. Equitable Lien. If any Credit Party or any of its Subsidiaries shall create or assume
any Lien upon any of its properties or assets, whether now owned or hereafter acquired, other than
Permitted Liens, it shall make or cause to be made effective provisions whereby the Obligations
will be secured by such Lien equally and ratably with any and all other Indebtedness secured
thereby as long as any such Indebtedness shall be so secured; provided, notwithstanding the
foregoing, this covenant shall not be construed as a consent by Requisite Lenders to the creation
or assumption of any such Lien not otherwise permitted hereby.



     6.4. No Further Negative Pledges. Except (a) with respect to specific property encumbered to
secure payment of particular Indebtedness or to be sold pursuant to an executed agreement with
respect to a permitted Asset Sale, (b) with respect to restrictions by reason of customary
provisions restricting assignments, subletting or other transfers contained in leases, licenses and
similar agreements entered into in the ordinary course of business (provided that such restrictions
are limited to the property or assets secured by such Liens or the property or assets subject to
such leases, licenses or similar agreements, as the case may be) and (c) as otherwise provided
herein, no Credit Party nor any of its Subsidiaries shall enter into any agreement prohibiting the
creation or assumption of any Lien upon any of its properties or assets, whether now owned or
hereafter acquired.



     6.5. Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its
Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or
indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set
apart, any sum for any Restricted Junior Payment except the following shall be permitted:



          (a) Company may make regularly scheduled payments in respect of any Subordinated Indebtedness
of Company and its Subsidiaries in accordance with the terms of, and only to the extent required
by, and subject to the subordination provisions contained in, the indenture or other agreement
pursuant to which such Subordinated Indebtedness was issued or is otherwise subject;




          (b) [Reserved];




          (c) [Reserved];




          (d) so long as no Default or Event of Default shall have occurred and be continuing or shall
be caused thereby, Company may make Restricted Junior Payments to
Holdings in an aggregate amount not to exceed $100,000 in any Fiscal Year, to the extent
necessary to permit Holdings to pay general administrative costs and expenses;




          (e) Company may make Restricted Junior Payments to Holdings to the extent required to permit
Holdings to repurchase its Capital Stock, in each case from deceased, disabled, terminated or
retired officers, directors, consultants or employees of Holdings and its Subsidiaries, so long as
Holdings applies the amount of such Restricted Junior Payment for such purpose; provided,
that (x) at the time of each such Restricted Junior Payment and immediately after giving effect
thereto, no Default or Event of Default shall have occurred and be continuing




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and (y) the aggregate
amount of Restricted Junior Payments made pursuant to this clause (e) shall not exceed $750,000 in
any Fiscal Year;




          (f) Company may make Restricted Junior Payments with respect to cash payments in respect of
Additional Earn-Out Obligations (including Additional Earn-Out Obligations which do not constitute
Subordinated Indebtedness) in an aggregate amount not to exceed in any Fiscal Year the aggregate
amount corresponding to such Fiscal Year set forth on Schedule 6.5(f).




          (g) [Reserved].




     6.6. Restrictions on Subsidiary Distributions. Except as provided herein, no Credit Party
shall, nor shall it permit any of its Subsidiaries to, create or otherwise cause or suffer to exist
or become effective any consensual encumbrance or restriction of any kind on the ability of any
Subsidiary of Company to (a) pay dividends or make any other distributions on any of such
Subsidiary’s Capital Stock owned by Company or any other Subsidiary of Company, (b) repay or prepay
any Indebtedness owed by such Subsidiary to Company or any other Subsidiary of Company, (c) make
loans or advances to Company or any other Subsidiary of Company, or (d) transfer any of its
property or assets to Company or any other Subsidiary of Company other than restrictions (i) in
agreements evidencing Indebtedness permitted by Section 6.1(k) that impose restrictions on the
property so acquired and (ii) by reason of customary provisions restricting assignments, subletting
or other transfers contained in leases, licenses, joint venture agreements and similar agreements
entered into in the ordinary course of business, and (iii) that are or were created by virtue of
any transfer of, agreement to transfer or option or right with respect to any property, assets or
Capital Stock not otherwise prohibited under this Agreement.



     6.7. Investments. No Credit Party shall, nor shall it permit any of its Subsidiaries to,
directly or indirectly, make or own any Investment in any Person, including without limitation any
Joint Venture, except:



          (a) Investments in Cash and Cash Equivalents;




          (b) equity Investments owned as of the Closing Date in any Subsidiary and Investments made
after the Closing Date in wholly-owned Subsidiaries of Company;




          (c) Investments (i) in accounts receivable arising and trade credit granted, in each case, in
the ordinary course of business and in any Securities received in satisfaction or partial
satisfaction thereof from financially troubled account debtors and (ii) deposits, prepayments and
other credits to suppliers made in the ordinary course of business consistent with the past
practices of Holdings and its Subsidiaries;




          (d) intercompany loans to the extent permitted under Section 6.1(b);




          (e) Consolidated Capital Expenditures permitted by Section 6.8(e);




          (f) loans and advances to employees of Holdings and its Subsidiaries made in the ordinary
course of business in an aggregate principal amount not to exceed at any time $1,000,000
outstanding in the aggregate;




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          (g) Investments made in connection with Permitted Acquisitions permitted pursuant to Section
6.9;




          (h) Investments described in Schedule 6.7; and




          (i) other Investments in an aggregate amount not to exceed at any time $1,000,000.



Notwithstanding the foregoing, in no event shall any Credit Party make any Investment which results
in or facilitates in any manner any Restricted Junior payment not otherwise permitted under the
terms of Section 6.5.




6.8. Financial Covenants.




          (a) Interest Coverage Ratio. Holdings shall not permit the Interest Coverage Ratio as
of the last day of any Fiscal Quarter (which last day occurs in any period set forth below),
beginning with the Fiscal Quarter ending June 30, 2005, to be less than the correlative ratio
indicated:




	 	 	 	 	 
	 	 	Interest
	Period	 	Coverage Ratio
	Effective Date – December 31, 2005
	 	 	1.70:1.00	 
	January 1, 2006 – September 30, 2006
	 	 	1.75:1.00	 
	October 1, 2006 – September 30, 2007
	 	 	2.00:1.00	 
	October 1, 2007 – September 30, 2008
	 	 	2.25:1.00	 
	October 1, 2008 – December 31, 2008
	 	 	2.30:1.00	 
	January 1, 2009 – March 31, 2009
	 	 	2.40:1.00	 
	Thereafter
	 	 	2.50:1.00	 






     (b) Fixed Charge Coverage Ratio. Holdings shall not permit the Fixed Charge Coverage
Ratio as of the last day of any Fiscal Quarter (which last day occurs in any period set forth
below), beginning with the Fiscal Quarter ending December 31, 2005, to be less than the correlative
ratio indicated:



	 	 	 	 	 
	 	 	Fixed Charge
	Period	 	Coverage Ratio
	December 31, 2005 and thereafter
	 	 	1.10:1.00	 






     (c) Leverage Ratio. Holdings shall not permit the Leverage Ratio as of the last day
of any Fiscal Quarter (which last day occurs in any period set forth below), beginning with the
Fiscal Quarter ending December 31, 2005, to exceed the correlative ratio indicated:



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	Period	 	Leverage Ratio
	Effective Date – December 31, 2006
	 	 	3.50:1.00	 
	January 1, 2007 – March 31, 2008
	 	 	3.25:1.00	 
	April 1, 2008 – June 30, 2008
	 	 	3.20:1.00	 
	July 1, 2008 – September 30, 2008
	 	 	3.00:1.00	 
	October 1, 2008 – December 31, 2008
	 	 	2.80:1.00	 
	January 1, 2009 – March 31, 2009
	 	 	2.60:1.00	 
	Thereafter
	 	 	2.40:1.00	 






          (d) [Reserved].




          (e) Maximum Consolidated Capital Expenditures. Holdings shall not, and shall not
permit its Subsidiaries to, make or incur Consolidated Capital Expenditures, in any Fiscal Year
indicated below, in an aggregate amount for Holdings and its Subsidiaries in excess of the
corresponding amount set forth below opposite such Fiscal Year; provided, such amount for
any Fiscal Year shall be increased by an amount equal to the excess, if any, (but in no event more
than $1,000,000) of such amount for the previous Fiscal Year (as adjusted in accordance with this
proviso) over the actual amount of Consolidated Capital Expenditures for such previous Fiscal Year:




	 	 	 	 	 
	Fiscal	 	Consolidated
	Year	 	Capital Expenditures
	2005
	 	$	25,000,000	 
	2006
	 	$	25,000,000	 
	2007
	 	$	25,000,000	 
	2008
	 	$	25,000,000	 
	2009
	 	$	11,000,000	 






          (f) Certain Calculations. With respect to any period during which a Permitted
Acquisition or an Asset Sale has occurred (each, a “Subject
Transaction”), for purposes of
determining compliance with (i) the financial covenants set forth in this Section 6.8 (but not for
purposes of determining the Applicable Margin) and (ii) clause “vii” of the definition of Permitted
Acquisition, Consolidated Adjusted EBITDA and the components of Consolidated Fixed Charges shall be
calculated with respect to such period on a pro forma basis (including pro forma adjustments
arising out of events which are directly attributable to a specific transaction, are factually
supportable and are expected to have a continuing impact, in each case determined on a basis
consistent with Article 11 of Regulation S-X promulgated under the Securities Act and as
interpreted by the staff of the Securities and Exchange Commission, which would include cost




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savings resulting from head count reduction, closure of facilities and similar restructuring
charges, which pro forma adjustments shall be certified by the chief financial officer of Holdings)
using the historical audited financial statements of any business so acquired or to be acquired or
sold or to be sold and the consolidated financial statements of Holdings and its Subsidiaries which
shall be reformulated as if such Subject Transaction, and any Indebtedness incurred or repaid in
connection therewith, had been consummated or incurred or repaid at the beginning of such period
(and assuming that such Indebtedness bears interest during any portion of the applicable
measurement period prior to the relevant acquisition at the weighted average of the interest rates
applicable to outstanding Loans incurred during such period).




     6.9. Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor
shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation,
or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey,
sell, lease or sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in
one transaction or a series of transactions, all or any part of its
business, assets or property of any kind whatsoever, whether real, personal or mixed and
whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or
otherwise (other than purchases or other acquisitions of inventory, materials and equipment and
capital expenditures in the ordinary course of business) the business, property or fixed assets of,
or stock or other evidence of beneficial ownership of, any Person or any division or line of
business or other business unit of any Person, except:



          (a) any Subsidiary of Holdings may be merged with or into Company or any Guarantor Subsidiary,
or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may
be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of
transactions, to Company or any Guarantor Subsidiary; provided, in the case of such a
merger, Company or such Guarantor Subsidiary, as applicable shall be the continuing or surviving
Person;




          (b) sales or other dispositions of assets that do not constitute Asset Sales;




          (c) Asset Sales (excluding Asset Sales under Section 6.9(g)), the proceeds of which (valued at
the principal amount thereof in the case of non-Cash proceeds consisting of notes or other debt
Securities and valued at fair market value in the case of other non-Cash proceeds) (i) are less
than $200,000 with respect to any single Asset Sale or series of related Asset Sales and (ii) when
aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, are less
than $1,000,000; provided (1) the consideration received for such assets shall be in an
amount at least equal to the fair market value thereof (determined in good faith by the board of
directors of Company (or similar governing body)), (2) no less than 80% thereof shall be paid in
Cash, and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);




          (d) disposals of obsolete, worn out or surplus property;




          (e) Permitted Acquisitions, the cash consideration for which constitutes (i) for so long as
the Leverage Ratio is greater than or equal to 3.0:1.0, less than $25,000,000 in the aggregate in
any Fiscal Year and (ii) at any time after the Leverage Ratio has fallen below




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3.0:1.0, less than
$40,000,000 in the aggregate in any Fiscal Year; provided, however, that in the
Fiscal Year 2005, the cash consideration for Permitted Acquisitions shall be less than $45,000,000;




          (f) Investments made in accordance with Section 6.7; and




          (g) Asset Sales of equipment in connection with Permitted Sale-Leasebacks, provided
that the proceeds of any such Permitted Sale-Leaseback shall be entirely in cash and shall not be
less than 100% of the fair market value of the equipment being sold (determined in good faith by
the board of advisors of Company (or similar governing body)).




     6.10. Disposal of Subsidiary Interests. Except for any sale of all of its interests in the
Capital Stock of any of its Subsidiaries in compliance with the provisions of Section 6.9 and
except with respect to Liens securing the Obligations hereunder, no Credit Party shall, nor shall
it permit any of its Subsidiaries to, (a)
directly or indirectly sell, assign, pledge or otherwise encumber or dispose of any Capital
Stock of any of its Subsidiaries, except to qualify directors if required by applicable law; or (b)
permit any of its Subsidiaries directly or indirectly to sell, assign, pledge or otherwise encumber
or dispose of any Capital Stock of any of its Subsidiaries, except to another Credit Party (subject
to the restrictions on such disposition otherwise imposed hereunder), or to qualify directors if
required by applicable law.



     6.11. Sales and Lease-Backs. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, become or remain liable as lessee or as a guarantor or
other surety with respect to any lease (a “Sale-Leaseback”) of any property (whether real, personal
or mixed), whether now owned or hereafter acquired, which such Credit Party (a) has sold or
transferred or is to sell or to transfer to any other Person (other than Holdings or any of its
Subsidiaries), or (b) intends to use for substantially the same purpose as any other property which
has been or is to be sold or transferred by such Credit Party to any Person (other than Holdings or
any of its Subsidiaries) in connection with such lease; provided, however, that
Company and its Subsidiaries may enter into Sale-Leasebacks which are in the ordinary course of
Company’s or such Subsidiary’s business, consistent with past practice and at market rates and
subject to compliance with Section 6.9(g), with respect to equipment acquired by Company and its
Subsidiaries after the Closing Date (“Permitted Sale-Leasebacks”). For avoidance of doubt,
Sale-Leasebacks that result in Capital Leases shall be treated as Indebtedness for all purposes of
this Agreement.



     6.12. Transactions with Shareholders and Affiliates. No Credit Party shall, nor shall it
permit any of its Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction (including the purchase, sale, lease or exchange of any property or the rendering of
any service) with any holder of 5% or more of any class of Capital Stock of Holdings or any of its
Subsidiaries or with any Affiliate of Holdings or of any such holder, on terms that are less
favorable to Holdings or that Subsidiary, as the case may be, than those that might be obtained at
the time from a Person who is not such a holder or Affiliate; provided, the foregoing
restriction shall not apply to (a) any transaction between Company and any Guarantor Subsidiary;
(b) reasonable and customary fees paid to members of the board of directors (or similar governing
body) of Holdings and its Subsidiaries; (c) compensation arrangements for officers



92









 




and other employees of Holdings and its Subsidiaries entered into in the ordinary course of business; and (d)
transactions described in Schedule 6.12.




     6.13. Conduct of Business. From and after the Effective Date, no Credit Party shall, nor
shall it permit any of its Subsidiaries to, engage in any business other than (i) the businesses
engaged in by such Credit Party on the Effective Date and similar or related businesses and (ii)
such other lines of business as may be consented to by Requisite Lenders.



     6.14. Permitted Activities of Holdings and AR Holdings. (a) Holdings shall not (i) incur,
directly or indirectly, any Indebtedness or any other obligation or liability whatsoever other than
the Indebtedness and obligations under the
Related Agreements; (ii) create or suffer to exist any Lien upon any property or assets now
owned or hereafter acquired by it other than the Liens created under the Collateral Documents to
which it is a party or permitted pursuant to Section 6.2; (iii) engage in any business or activity
or own any assets other than (v) prior to the Restructuring, holding 100% of the Capital Stock of
AR Holdings, (w) after the Restructuring, holding 100% of the Capital Stock of Company, (x)
performing its obligations and activities incidental thereto under the Credit Documents, and to the
extent not inconsistent therewith, the Related Agreements; (y) paying general administrative costs
and expenses in the ordinary course of business; and (z) making Restricted Junior Payments and
Investments to the extent permitted by this Agreement; (iv) consolidate with or merge with or into,
or convey, transfer or lease all or substantially all its assets to, any Person; (v) sell or
otherwise dispose of any Capital Stock of any of its Subsidiaries; (vi) create or acquire any
Subsidiary or make or own any Investment in any Person other than AR Holdings; or (vii) fail to
hold itself out to the public as a legal entity separate and distinct from all other Persons.



     (b) AR Holdings shall not (i) incur, directly or indirectly, any Indebtedness or any other
obligation or liability whatsoever other than the Indebtedness and obligations under the Related
Agreements; (ii) create or suffer to exist any Lien upon any property or assets now owned or
hereafter acquired by it other than the Liens created under the Collateral Documents to which it is
a party or permitted pursuant to Section 6.2; (iii) engage in any business or activity or own any
assets other than (w) holding 100% of the Capital Stock of Company, (x) performing its obligations
and activities incidental thereto under the Credit Documents, and to the extent not inconsistent
therewith, the Related Agreements; (y) paying general administrative costs and expenses in the
ordinary course of business; (z) making Restricted Junior Payments and Investments to the extent
permitted by this Agreement; and (zz) holding the Capital Stock of American Reprographics Midco,
LLC (“Midco”) provided that Midco shall not own any assets and thereafter shall not engage in any
business or other activity; (iv) consolidate with or merge with or into, or convey, transfer or
lease all or substantially all its assets to, any Person; (v) sell or otherwise dispose of any
Capital Stock of any of its Subsidiaries; (vi) create or acquire any Subsidiary or make or own any
Investment in any Person other than Company; or (vii) fail to hold itself out to the public as a
legal entity separate and distinct from all other Persons.



     6.15. Amendments or Waivers of Certain Related Agreements. Except as set forth in Section
6.16, no Credit Party shall nor shall it permit any of its Subsidiaries to, agree to any material
amendment, restatement, supplement or other modification to, or waiver of, any of its material
rights under any Related Agreement after the Effective Date which may adversely affect the
interests of any of the Agents or the Lenders without in each case obtaining the prior written



93









 




consent of Requisite Lenders to such amendment, restatement, supplement or other modification or
waiver.




     6.16. Amendments or Waivers with Respect to Subordinated Indebtedness. No Credit Party shall,
nor shall it permit any of its Subsidiaries to, amend or otherwise change the terms of any
Subordinated Indebtedness or make any payment consistent with an amendment thereof or change
thereto, if the effect of such amendment or change is to increase the interest rate applicable to
such Subordinated Indebtedness, change (to earlier dates) any dates upon which payments of
principal or interest are due thereon, change any event of default or
condition to an event of default with respect thereto (other than to eliminate any such event
of default or increase any grace period related thereto), change the redemption, prepayment or
defeasance provisions thereof, change the subordination provisions of such Subordinated
Indebtedness (or of any guaranty thereof), or if the effect of such amendment or change, together
with all other amendments or changes made, is to increase materially the obligations of the obligor
thereunder or to confer any additional rights on the holders of such Subordinated Indebtedness (or
a trustee or other representative on their behalf) which would be adverse to any Credit Party or
Lenders.



     6.17. Fiscal Year. No Credit Party shall, nor shall it permit any of its Subsidiaries to
change its Fiscal Year-end from December 31.



SECTION 7. GUARANTY




     7.1. Guaranty of the Obligations. Subject to the provisions of Section 7.2, Guarantors
jointly and severally hereby irrevocably and unconditionally guaranty to Administrative Agent for
the ratable benefit of the Beneficiaries the due and punctual payment in full of all Obligations
when the same shall become due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including amounts that would become due but for the operation of
the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)) (collectively,
the “Guaranteed Obligations”).



     7.2. Contribution by Guarantors. All Guarantors desire to allocate among themselves
(collectively, the “Contributing Guarantors”), in a fair and equitable manner, their obligations
arising under this Guaranty. Accordingly, in the event any payment or distribution is made on any
date by a Guarantor (a “Funding Guarantor”) under this Guaranty such that its Aggregate Payments
exceeds its Fair Share as of such date, such Funding Guarantor shall be entitled to a contribution
from each of the other Contributing Guarantors in an amount sufficient to cause each Contributing
Guarantor’s Aggregate Payments to equal its Fair Share as of such date. “Fair Share” means, with
respect to a Contributing Guarantor as of any date of determination, an amount equal to (a) the
ratio of (i) the Fair Share Contribution Amount with respect to such Contributing Guarantor to (ii)
the aggregate of the Fair Share Contribution Amounts with respect to all Contributing Guarantors
multiplied by (b) the aggregate amount paid or distributed on or before such date by all Funding
Guarantors under this Guaranty in respect of the obligations Guaranteed. “Fair Share Contribution
Amount” means, with respect to a Contributing Guarantor as of any date of determination, the
maximum aggregate amount of the obligations of such Contributing Guarantor under this Guaranty that
would not render its obligations hereunder or thereunder subject to avoidance as a fraudulent
transfer or conveyance under Section 548 of



94









 




Title 11 of the United States Code or any comparable
applicable provisions of state law; provided, solely for purposes of calculating the “Fair
Share Contribution Amount” with respect to any Contributing Guarantor for purposes of this Section
7.2, any assets or liabilities of such
Contributing Guarantor arising by virtue of any rights to subrogation, reimbursement or
indemnification or any rights to or obligations of contribution hereunder shall not be considered
as assets or liabilities of such Contributing Guarantor. “Aggregate Payments” means, with respect
to a Contributing Guarantor as of any date of determination, an amount equal to (1) the aggregate
amount of all payments and distributions made on or before such date by such Contributing Guarantor
in respect of this Guaranty (including, without limitation, in respect of this Section 7.2), minus
(2) the aggregate amount of all payments received on or before such date by such Contributing
Guarantor from the other Contributing Guarantors as contributions under this Section 7.2. The
amounts payable as contributions hereunder shall be determined as of the date on which the related
payment or distribution is made by the applicable Funding Guarantor. Notwithstanding anything
herein to the contrary, the allocation among Contributing Guarantors of their obligations as set
forth in this Section 7.2 shall not be construed in any way to limit the liability of any
Contributing Guarantor hereunder. Each Guarantor is a third party beneficiary to the contribution
agreement set forth in this Section 7.2.




     7.3. Payment by Guarantors. Subject to Section 7.2, Guarantors hereby jointly and severally
agree, in furtherance of the foregoing and not in limitation of any other right which any
Beneficiary may have at law or in equity against any Guarantor by virtue hereof, that upon the
failure of Company to pay any of the Guaranteed Obligations when and as the same shall become due,
whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise
(including amounts that would become due but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)), Guarantors will upon demand pay, or cause to
be paid, in Cash, to Administrative Agent for the ratable benefit of Beneficiaries, an amount equal
to the sum of the unpaid principal amount of all Guaranteed Obligations then due as aforesaid,
accrued and unpaid interest on such Guaranteed Obligations (including interest which, but for
Company’s becoming the subject of a case under the Bankruptcy Code, would have accrued on such
Guaranteed Obligations, whether or not a claim is allowed against Company for such interest in the
related bankruptcy case) and all other Guaranteed Obligations then owed to Beneficiaries as
aforesaid.



     7.4. Liability of Guarantors Absolute. Each Guarantor agrees that its obligations hereunder
are irrevocable, absolute, independent and unconditional and shall not be affected by any
circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than
payment in full of the Guaranteed Obligations. In furtherance of the foregoing and without
limiting the generality thereof, each Guarantor agrees as follows:



          (a) this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty
is a primary obligation of each Guarantor and not merely a contract of surety;




          (b) Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default
notwithstanding the existence of any dispute between Company and any Beneficiary with respect to
the existence of such Event of Default;




95









 








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




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




          (e) any Beneficiary, upon such terms as it deems appropriate, without notice or demand and
without affecting the validity or enforceability hereof or giving rise to any reduction,
limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time
to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change
the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise,
release or discharge, or accept or refuse any offer of performance with respect to, or
substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate
the payment of the same to the payment of any other obligations; (iii) request and accept other
guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the
Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind,
waive, alter, subordinate or modify, with or without consideration, any security for payment of the
Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation
of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v)
enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in
respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or
exercise any other right or remedy that such Beneficiary may have against any such security, in
each case as such Beneficiary in its discretion may determine consistent herewith or the applicable
Hedge Agreement and any applicable security agreement, including foreclosure on any such security
pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale
is commercially reasonable, and even though such action operates to impair or extinguish any right
of reimbursement or subrogation or other right or remedy of any Guarantor against Company or any
security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under
the Credit Documents or the Hedge Agreements; and




          (f) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable
and shall not be subject to any reduction, limitation, impairment, discharge or termination for any
reason (other than payment in full of the Guaranteed Obligations), including the occurrence of any
of the following, whether or not any Guarantor shall have had notice or knowledge of any of them:
(i) any failure or omission to assert or enforce or agreement or election not to assert or enforce,
or the stay or enjoining, by order of court, by operation of law or




96









 







otherwise, of the exercise or enforcement of, any claim or demand or any right, power or
remedy (whether arising under the Credit Documents or the Hedge Agreements, at law, in equity or
otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with
respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii)
any rescission, waiver, amendment or modification of, or any consent to departure from, any of the
terms or provisions (including provisions relating to events of default) hereof, any of the other
Credit Documents, any of the Hedge Agreements or any agreement or instrument executed pursuant
thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether
or not in accordance with the terms hereof or such Credit Document, such Hedge Agreement or any
agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any
agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any
respect; (iv) the application of payments received from any source (other than payments received
pursuant to the other Credit Documents or any of the Hedge Agreements or from the proceeds of any
security for the Guaranteed Obligations, except to the extent such security also serves as
collateral for indebtedness other than the Guaranteed Obligations) to the payment of indebtedness
other than the Guaranteed Obligations, even though any Beneficiary might have elected to apply such
payment to any part or all of the Guaranteed Obligations; (v) any Beneficiary’s consent to the
change, reorganization or termination of the corporate structure or existence of Holdings or any of
its Subsidiaries and to any corresponding restructuring of the Guaranteed Obligations; (vi) any
failure to perfect or continue perfection of a security interest in any collateral which secures
any of the Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Company may
allege or assert against any Beneficiary in respect of the Guaranteed Obligations, including
failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations,
accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do
any other act or thing, which may or might in any manner or to any extent vary the risk of any
Guarantor as an obligor in respect of the Guaranteed Obligations.




     7.5. Waivers by Guarantors. Each Guarantor hereby waives, for the benefit of Beneficiaries:
(a) any right to require any Beneficiary, as a condition of payment or performance by such
Guarantor, to (i) proceed against Company, any other guarantor (including any other Guarantor) of
the Guaranteed Obligations or any other Person, (ii) proceed against or exhaust any security held
from Company, any such other guarantor or any other Person, (iii) proceed against or have resort to
any balance of any Deposit Account or credit on the books of any Beneficiary in favor of Company or
any other Person, or (iv) pursue any other remedy in the power of any Beneficiary whatsoever; (b)
any defense arising by reason of the incapacity, lack of authority or any disability or other
defense of Company or any other Guarantor including any defense based on or arising out of the lack
of validity or the unenforceability of the Guaranteed Obligations or any agreement or instrument
relating thereto or by reason of the cessation of the liability of Company or any other Guarantor
from any cause other than payment in full of the Guaranteed Obligations; (c) any defense based upon
any statute or rule of law which provides that the obligation of a surety must be neither larger in
amount nor in other respects more burdensome than that of the principal; (d) any defense based upon
any Beneficiary’s errors or omissions in the administration of the Guaranteed Obligations, except
behavior which amounts to bad faith; (e) (i) any principles or provisions of law, statutory or
otherwise, which are or might be in conflict with the terms hereof
and any legal or equitable discharge of such Guarantor’s obligations hereunder, (ii) the
benefit of any statute of limitations affecting such Guarantor’s



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liability hereunder or the
enforcement hereof, (iii) any rights to set-offs, recoupments and counterclaims, and (iv)
promptness, diligence and any requirement that any Beneficiary protect, secure, perfect or insure
any security interest or lien or any property subject thereto; (f) notices, demands, presentments,
protests, notices of protest, notices of dishonor and notices of any action or inaction, including
acceptance hereof, notices of default hereunder, the Hedge Agreements or any agreement or
instrument related thereto, notices of any renewal, extension or modification of the Guaranteed
Obligations or any agreement related thereto, notices of any extension of credit to Company and
notices of any of the matters referred to in Section 7.4 and any right to consent to any thereof;
and (g) any defenses or benefits that may be derived from or afforded by law which limit the
liability of or exonerate guarantors or sureties, or which may conflict with the terms hereof.




     7.6. Guarantors’ Rights of Subrogation, Contribution, etc. Until the Guaranteed Obligations
shall have been indefeasibly paid in full and the Revolving Commitments shall have terminated and
all Letters of Credit shall have expired or been cancelled, each Guarantor hereby waives any claim,
right or remedy, direct or indirect, that such Guarantor now has or may hereafter have against
Company or any other Guarantor or any of its assets in connection with this Guaranty or the
performance by such Guarantor of its obligations hereunder, in each case whether such claim, right
or remedy arises in equity, under contract, by statute, under common law or otherwise and including
without limitation (a) any right of subrogation, reimbursement or indemnification that such
Guarantor now has or may hereafter have against Company with respect to the Guaranteed Obligations,
(b) any right to enforce, or to participate in, any claim, right or remedy that any Beneficiary now
has or may hereafter have against Company, and (c) any benefit of, and any right to participate in,
any collateral or security now or hereafter held by any Beneficiary. In addition, until the
Guaranteed Obligations shall have been indefeasibly paid in full and the Revolving Commitments
shall have terminated and all Letters of Credit shall have expired or been cancelled, each
Guarantor shall withhold exercise of any right of contribution such Guarantor may have against any
other guarantor (including any other Guarantor) of the Guaranteed Obligations, including, without
limitation, any such right of contribution as contemplated by Section 7.2. Each Guarantor further
agrees that, to the extent the waiver or agreement to withhold the exercise of its rights of
subrogation, reimbursement, indemnification and contribution as set forth herein is found by a
court of competent jurisdiction to be void or voidable for any reason, any rights of subrogation,
reimbursement or indemnification such Guarantor may have against Company or against any collateral
or security, and any rights of contribution such Guarantor may have against any such other
guarantor, shall be junior and subordinate to any rights any Beneficiary may have against Company,
to all right, title and interest any Beneficiary may have in any such collateral or security, and
to any right any Beneficiary may have against such other guarantor. If any amount shall be paid to
any Guarantor on account of any such subrogation, reimbursement, indemnification or contribution
rights at any time when all Guaranteed Obligations shall not have been finally and indefeasibly
paid in full, such amount shall be held in trust for Administrative Agent on behalf of
Beneficiaries and shall forthwith be paid over to Administrative Agent for the benefit of
Beneficiaries to be credited and applied against the Guaranteed Obligations, whether matured or
unmatured, in accordance with the terms hereof.



     7.7. Subordination of Other Obligations. Any Indebtedness of Company or any Guarantor now or
hereafter held by any Guarantor (the “Obligee Guarantor”) is hereby



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subordinated in right of
payment to the Guaranteed Obligations, and any such indebtedness collected or received by the
Obligee Guarantor after an Event of Default has occurred and is continuing shall be held in trust
for Administrative Agent on behalf of Beneficiaries and shall forthwith be paid over to
Administrative Agent for the benefit of Beneficiaries to be credited and applied against the
Guaranteed Obligations but without affecting, impairing or limiting in any manner the liability of
the Obligee Guarantor under any other provision hereof.




     7.8. Continuing Guaranty. This Guaranty is a continuing guaranty and shall remain in effect
until all of the Guaranteed Obligations shall have been paid in full and the Revolving Commitments
shall have terminated and all Letters of Credit shall have expired or been cancelled. Each
Guarantor hereby irrevocably waives any right to revoke this Guaranty as to future transactions
giving rise to any Guaranteed Obligations.



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



     7.10. Financial Condition of Company. Any Credit Extension may be made to Company or
continued from time to time, and any Hedge Agreements may be entered into from time to time, in
each case without notice to or authorization from any Guarantor regardless of the financial or
other condition of Company at the time of any such grant or continuation or at the time such Hedge
Agreement is entered into, as the case may be. No Beneficiary shall have any obligation to
disclose or discuss with any Guarantor its assessment, or any Guarantor’s assessment, of the
financial condition of Company. Each Guarantor has adequate means to obtain information from
Company on a continuing basis concerning the financial condition of Company and its ability to
perform its obligations under the Credit Documents and the Hedge Agreements, and each Guarantor
assumes the responsibility for being and keeping informed of the financial condition of Company and
of all circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations. Each
Guarantor hereby waives and relinquishes any duty on the part of any Beneficiary to disclose any
matter, fact or thing relating to the business, operations or conditions of Company now known or
hereafter known by any Beneficiary.



     7.11. Bankruptcy, etc. (a) So long as any Guaranteed Obligations remain outstanding, no
Guarantor shall, without the prior written consent of Administrative Agent acting pursuant to the
instructions of Requisite Lenders, commence or join with any other Person in commencing any
bankruptcy, reorganization or insolvency case or proceeding of or against Company or any other
Guarantor. The obligations of Guarantors hereunder shall not be reduced, limited, impaired, discharged,
deferred, suspended or terminated by any case or proceeding, voluntary or involuntary, involving
the bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of Company or
any other Guarantor or by any defense which Company or any other Guarantor may have by reason of
the order, decree or decision of any court or administrative body resulting from any such
proceeding.



          (b) Each Guarantor acknowledges and agrees that any interest on any portion of the Guaranteed
Obligations which accrues after the commencement of any case or proceeding referred to in clause
(a) above (or, if interest on any portion of the Guaranteed Obligations ceases to accrue by
operation of law by reason of the commencement of such case or proceeding, such




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interest as would
have accrued on such portion of the Guaranteed Obligations if such case or proceeding had not been
commenced) shall be included in the Guaranteed Obligations because it is the intention of
Guarantors and Beneficiaries that the Guaranteed Obligations which are guaranteed by Guarantors
pursuant hereto should be determined without regard to any rule of law or order which may relieve
Company of any portion of such Guaranteed Obligations. Guarantors will permit any trustee in
bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar person
to pay Administrative Agent, or allow the claim of Administrative Agent in respect of, any such
interest accruing after the date on which such case or proceeding is commenced.




          (c) In the event that all or any portion of the Guaranteed Obligations are paid by Company,
the obligations of Guarantors hereunder shall continue and remain in full force and effect or be
reinstated, as the case may be, in the event that all or any part of such payment(s) are rescinded
or recovered directly or indirectly from any Beneficiary as a preference, fraudulent transfer or
otherwise, and any such payments which are so rescinded or recovered shall constitute Guaranteed
Obligations for all purposes hereunder.




     7.12. Discharge of Guaranty Upon Sale of Guarantor. If all of the Capital Stock of any
Guarantor or any of its successors in interest hereunder shall be sold or otherwise disposed of
(including by merger or consolidation) in accordance with the terms and conditions hereof, the
Guaranty of such Guarantor or such successor in interest, as the case may be, hereunder shall
automatically be discharged and released without any further action by any Beneficiary or any other
Person effective as of the time of such Asset Sale.



SECTION 8. EVENTS OF DEFAULT




     8.1. Events of Default. If any one or more of the following conditions or events shall occur:



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




          (b) Default in Other Agreements. (i) Failure of any Credit Party or any of their
respective Subsidiaries to pay when due any principal of or interest on or any other amount payable
in respect of one or more items of Indebtedness (other than Indebtedness referred to in Section
8.1(a)) with an aggregate principal amount of $1,000,000 or more, beyond the grace period, if any,
provided therefore; or (ii) breach or default by any Credit Party with respect to any other
material term of (1) one or more items of Indebtedness in the individual or aggregate principal
amounts referred to in clause (i) above or (2) any loan agreement, mortgage, indenture or other
agreement relating to such item(s) of Indebtedness, in each case beyond the grace period, if any,
provided therefore, if the effect of such breach or default is to cause, or to permit the holder or
holders of that Indebtedness (or a trustee on behalf of such holder or holders), to




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cause, that
Indebtedness to become or be declared due and payable (or redeemable) prior to its stated maturity
or the stated maturity of any underlying obligation, as the case may be; or




          (c) Breach of Certain Covenants. Failure of any Credit Party to perform or comply
with any term or condition contained in Section 2.6, Section 5.2 or Section 6; or




          (d) Breach of Representations, etc. Any representation, warranty, certification or
other statement made or deemed made by any Credit Party in any Credit Document or in any statement
or certificate at any time given by any Credit Party or any of its Subsidiaries in writing pursuant
hereto or thereto or in connection herewith or therewith shall be false in any material respect as
of the date made or deemed made; or




          (e) Other Defaults Under Credit Documents. Any Credit Party shall default in the
performance of or compliance with any term contained herein or any of the other Credit Documents,
other than any such term referred to in any other Section of this Section 8.1, and such default
shall not have been remedied or waived within thirty days after the earlier of (i) an officer of
such Credit Party becoming aware of such default or (ii) receipt by Company of notice from
Administrative Agent or any Lender of such default; or




          (f) Involuntary Bankruptcy; Appointment of Receiver, etc.. (i) A court of competent
jurisdiction shall enter a decree or order for relief in respect of Holdings or any of its
Subsidiaries in an involuntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, which decree or order is not
stayed; or any other similar relief shall be granted under any applicable federal or state law; or
(ii) an involuntary case shall be commenced against Holdings or any of its Subsidiaries under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect; or a decree or order of a court having jurisdiction in the premises for the
appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having
similar powers over Holdings or any of its Subsidiaries, or over all or a substantial part of its
property, shall have been entered; or there shall have occurred the involuntary appointment of an
interim receiver, trustee or other custodian of Holdings or any of its Subsidiaries for all or a
substantial part of its property; or a warrant of attachment, execution or similar process shall
have been issued against any substantial part of the property of Holdings or any of its
Subsidiaries, and any such event described in this clause (ii) shall continue for sixty days
without having been dismissed, bonded or discharged; or




          (g) Voluntary Bankruptcy; Appointment of Receiver, etc.. (i) Holdings or any of its
Subsidiaries shall have an order for relief entered with respect to it or shall commence a
voluntary case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect, or shall consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such
law, or shall consent to the appointment of or taking possession by a receiver, trustee or other
custodian for all or a substantial part of its property; or Holdings or any of its Subsidiaries
shall make any assignment for the benefit of creditors; or (ii) Holdings or any of its Subsidiaries
shall be unable, or shall fail generally, or shall admit in writing its inability, to pay its debts
as such debts become due; or the board of directors (or similar governing body) of Holdings or any
of its




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Subsidiaries (or any committee thereof) shall adopt any resolution or otherwise authorize
any action to approve any of the actions referred to herein or in Section 8.1(f); or




          (h) Judgments and Attachments. Any money judgment, writ or warrant of attachment or
similar process involving in the aggregate at any time an amount in excess of $2,000,000 (in any
case to the extent not adequately covered by insurance as to which a solvent and unaffiliated
insurance company has acknowledged coverage) shall be entered or filed against Holdings or any of
its Subsidiaries or any of their respective assets and shall remain undischarged, unvacated,
unbonded or unstayed for a period of ninety days (or in any event later than five days prior to the
date of any proposed sale thereunder); or




          (i) Dissolution. Any order, judgment or decree shall be entered against any Credit
Party decreeing the dissolution or split up of such Credit Party and such order shall remain
undischarged or unstayed for a period in excess of thirty days; or




          (j) Employee Benefit Plans. (i) There shall occur one or more ERISA Events which
individually or in the aggregate results in or might reasonably be expected to result in liability
of Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates in excess of
$2,000,000 during the term hereof; or (ii) there exists any fact or circumstance that reasonably
could be expected to result in the imposition of a Lien or security interest under Section 412(n)
of the Internal Revenue Code or under ERISA;




          (k) Change of Control. A Change of Control shall occur; or




          (l) Guaranties, Collateral Documents and other Credit Documents. At any time after
the execution and delivery thereof, (i) the Guaranty for any reason, other than the satisfaction in
full of all Obligations, shall cease to be in full force and effect (other than in accordance with
its terms) or shall be declared to be null and void or any Guarantor shall repudiate its
obligations thereunder, (ii) this Agreement or any Collateral Document ceases to be in full force
and effect (other than by reason of a release of Collateral in accordance with the terms hereof or
thereof or the satisfaction in full of the Obligations in accordance with the terms hereof) or
shall be declared null and void, or Collateral Agent shall not have or shall cease to have a valid
and perfected Lien in any Collateral purported to be covered by the Collateral Documents with the
priority required by the relevant Collateral Document, in each case for any
reason other than the failure of Collateral Agent or any Secured Party to take any action
within its control, or (iii) any Credit Party shall contest the validity or enforceability of any
Credit Document in writing or deny in writing that it has any further liability, including with
respect to future advances by Lenders, under any Credit Document to which it is a party;



THEN, (1) upon the occurrence of any Event of Default described in Section 8.1(f) or 8.1(g),
automatically, and (2) upon the occurrence of any other Event of Default, at the request of (or
with the consent of) Requisite Lenders, upon notice to Company by Administrative Agent, (A) the
Revolving Commitments, if any, of each Lender having such Revolving Commitments and the obligation
of Issuing Bank to issue any Letter of Credit shall immediately terminate; (B) each of the
following shall immediately become due and payable, in each case without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly waived by each Credit
Party: (I) the unpaid principal amount of and accrued interest on the Loans, (II) an




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amount equal to the maximum amount that may at any time be drawn under all Letters of Credit then outstanding
(regardless of whether any beneficiary under any such Letter of Credit shall have presented, or
shall be entitled at such time to present, the drafts or other documents or certificates required
to draw under such Letters of Credit), and (III) all other Obligations; provided, the
foregoing shall not affect in any way the obligations of Lenders under Section 2.3(b)(iv) or
Section 2.4(e); (C) Administrative Agent may cause Collateral Agent to enforce any and all Liens
and security interests created pursuant to Collateral Documents; and (D) Administrative Agent shall
direct Company to pay (and Company hereby agrees upon receipt of such notice, or upon the
occurrence of any Event of Default specified in Section 8.1(f) and (g) to pay) to Administrative
Agent such additional amounts of cash, to be held as security for Company’s reimbursement
Obligations in respect of Letters of Credit then outstanding, equal to the Letter of Credit Usage
at such time.




SECTION 9. AGENTS




     9.1. Appointment of Agents. JPMCB is hereby appointed Syndication Agent hereunder, and each
Lender hereby authorizes Syndication Agent to act as its agent in accordance with the terms hereof
and the other Credit Documents. GECC is hereby appointed Administrative Agent hereunder and under
the other Credit Documents and each Lender hereby authorizes Administrative Agent to act as its
agent in accordance with the terms hereof and the other Credit Documents. GECC is hereby appointed
Collateral Agent hereunder and under the other Credit Documents and each Lender hereby authorizes
Collateral Agent to act as its agent in accordance with the terms hereof and the other Credit
Documents. Each Agent hereby agrees to act upon the express conditions contained herein and the
other Credit Documents, as applicable. The provisions of this Section 9 are solely for the benefit
of Agents and Lenders and no Credit Party shall have any rights as a third party beneficiary of any
of the provisions thereof. In performing its functions and duties hereunder, each Agent shall act
solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any
obligation towards or relationship of agency or trust with or for Holdings or any of its
Subsidiaries. Syndication Agent, without consent of or notice to any party hereto, may assign any
and all of its rights or obligations hereunder to any of its Affiliates. As of the
Effective Date, JPMCB, in its capacity as Syndication Agent, shall not have any obligations
but shall be entitled to all benefits of this Section 9.



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



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     9.3. General Immunity.



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




          (b) Exculpatory Provisions. No Agent nor any of its officers, partners, directors,
employees or agents shall be liable to Lenders for any action taken or omitted by any Agent under
or in connection with any of the Credit Documents except to the extent caused by such Agent’s gross
negligence or willful misconduct. Each Agent shall be entitled to refrain from any act or the
taking of any action (including the failure to take an action) in connection with this Agreement or
any of the other Loan Documents or from the exercise of any power, discretion or authority vested
in it hereunder or thereunder unless and until such Agent, in the case of any Agent other than the
Collateral Agent, shall have received instructions in respect thereof from Requisite Lenders (or
such other Lenders as may be required to give such instructions under subsection 10.5) or, in the
case of the Collateral Agent, in accordance with the Pledge and
Security Agreement or other applicable Collateral Document, and, upon receipt of such
instructions from Requisite Lenders (or such other Lenders, as the case may be) or in accordance
with the Pledge and Security Agreement or other applicable Collateral Document, as the case may be,
such Agent shall be entitled to act or (where so instructed) refrain from acting, or to exercise
such power, discretion or authority, in accordance with such instructions. In no event shall any
Agent be liable for punitive, special, consequential, incidental, exemplary or other similar
damages. Without prejudice to the generality of the foregoing, (i) each Agent shall be entitled to
rely, and shall be fully protected in relying, upon any communication, instrument or document
believed by it to be genuine and correct and to have been signed or sent by the proper Person or
Persons, and shall be entitled to rely and shall be protected in relying on opinions and judgments
of attorneys (who may be attorneys for Holdings and its Subsidiaries), accountants, experts and
other professional advisors selected by it; and (ii) no Lender shall have any right of action
whatsoever against any Agent as a result of such Agent acting or (where so instructed) refraining
from acting under this Agreement or any of the other Loan Documents, in the case of any Agent other
than the Collateral Agent, in accordance with the instructions of Requisite Lenders (or such other
Lenders as may be required to give such instructions under subsection 10.5) or, in the case of the
Collateral Agent, in accordance with the Pledge and Security Agreement or other applicable
Collateral Document.




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



     9.5. Lenders’ Representations, Warranties and Acknowledgment.



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




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




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



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suit, cost, expense or
disbursement in excess of such Lender’s Pro Rata Share thereof; and provided
further, this sentence shall not be deemed to require any Lender to indemnify any Agent
against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or
disbursement described in the proviso in the immediately preceding sentence.




     9.7. Successor Administrative Agent and/or Collateral Agent and Swing Line Lender. The
Administrative Agent and/or Collateral Agent may at any time give notice of its resignation to the
Lenders and the Company, and Administrative Agent and/or the Collateral Agent may be removed at any
time with or without cause by an instrument or concurrent instruments in writing delivered to
Company and Administrative Agent and signed by Requisite Lenders. Upon any such notice of
resignation or any such removal, Requisite Lenders shall have the right, upon five Business Days’
notice to Company and in consultation with the Company, to appoint a successor Administrative Agent
and/or Collateral Agent, as applicable. Upon the acceptance of any appointment as Administrative
Agent and/or Collateral Agent, as applicable, hereunder by a successor Administrative Agent and/or
Collateral Agent, as applicable, that successor Administrative Agent and/or Collateral Agent, as
applicable, shall thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring or removed Administrative Agent and/or Collateral Agent, as applicable,
and the retiring or removed Administrative Agent and/or Collateral Agent, as applicable, shall
promptly (i) transfer to such successor Administrative Agent and/or Collateral Agent, as
applicable, all sums, Securities and other items of Collateral held under the Collateral Documents,
together with all records and other
documents necessary or appropriate in connection with the performance of the duties of the
successor Administrative Agent and/or Collateral Agent, as applicable, under the Credit Documents,
and (ii) execute and deliver to such successor Administrative Agent and/or Collateral Agent, as
applicable, such amendments to financing statements, and take such other actions, as may be
necessary or appropriate in connection with the assignment to such successor Administrative Agent
and/or Collateral Agent, as applicable, of the security interests created under the Collateral
Documents, whereupon such retiring or removed Administrative Agent and/or Collateral Agent, as
applicable, shall be discharged from its duties and obligations hereunder. After any retiring or
removed Administrative Agent’s and/or Collateral Agent’s, as applicable, resignation or removal
hereunder as Administrative Agent and/or Collateral Agent, as applicable, the provisions of this
Section 9 shall inure to its benefit as to any actions taken or omitted to be taken by it while it
was Administrative Agent and/or Collateral Agent, as applicable hereunder. Any resignation or
removal of Administrative Agent pursuant to this Section shall also constitute the resignation or
removal of GECC or its successor as Swing Line Lender, and any successor Administrative Agent
appointed pursuant to this Section shall, upon its acceptance of such appointment, become the
successor Swing Line Lender for all purposes hereunder. In such event (a) Company shall prepay any
outstanding Swing Line Loans made by the retiring or removed Administrative Agent in its capacity
as Swing Line Lender, (b) upon such prepayment, the retiring or removed Administrative Agent and
Swing Line Lender shall surrender any Swing Line Note held by it to Company for cancellation, and
(c) Company shall issue, if so requested by successor Administrative Agent and Swing Line Loan
Lender, a new Swing Line Note to the successor Administrative Agent and Swing Line Lender, in the
principal amount of the Swing Line Loan Sublimit then in effect and with other appropriate
insertions.



     9.8. Collateral Documents and Guaranty.



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          (a) Agents under Collateral Documents and Guaranty. Each Lender hereby further
authorizes Administrative Agent or Collateral Agent, as applicable, on behalf of and for the
benefit of Lenders, to be the agent for and representative of Lenders with respect to the Guaranty,
the Collateral, and the other Collateral Documents. Subject to Section 10.5, without further
written consent or authorization from Lenders, Administrative Agent or Collateral Agent, as
applicable may execute any documents or instruments necessary to (i) release any Lien encumbering
any item of Collateral that is the subject of a sale or other disposition of assets permitted
hereby or to which Requisite Lenders (or such other Lenders as may be required to give such consent
under Section 10.5) have otherwise consented or (ii) release any Guarantor from the Guaranty
pursuant to Section 7.12 or with respect to which Requisite Lenders (or such other Lenders as may
be required to give such consent under Section 10.5) have otherwise consented.




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




SECTION 10. MISCELLANEOUS




     10.1. Notices. Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given to a Credit Party, Syndication Agent,
Collateral Agent, Administrative Agent, Swing Line Lender or Issuing Bank, shall be sent to such
Person’s address as set forth on Appendix B or in the other relevant Credit Document, and in the
case of any Lender, the address as indicated on Appendix B or otherwise indicated to Administrative
Agent in writing. Each notice hereunder shall be in writing and may be personally served, telexed
or sent by telefacsimile or United States mail or courier service and shall be deemed to have been
given when delivered in person or by courier service and signed for against receipt thereof, upon
receipt of telefacsimile or telex, or three Business Days after depositing it in the United States
mail with postage prepaid and properly addressed; provided, no notice to any Agent shall be
effective until received by such Agent.



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     10.2. Expenses. Whether or not the transactions contemplated hereby shall be consummated,
Company agrees to pay promptly (a) all the actual and reasonable costs and expenses of preparation
of the Credit Documents and any consents, amendments, waivers or other modifications thereto; (b)
all the costs of furnishing all opinions by counsel for Company and the other Credit Parties; (c)
the reasonable fees, expenses and disbursements of counsel to Agents (in each case including
allocated costs of internal counsel) in connection with the negotiation, preparation, execution and
administration of the Credit Documents and any consents, amendments, waivers or other modifications
thereto and any other documents or matters requested by Company; (d) all the actual costs and
reasonable expenses of creating and perfecting Liens in favor of Collateral Agent, for the benefit
of Lenders pursuant hereto, including filing and recording fees, expenses and taxes, stamp or
documentary taxes, search fees, title insurance premiums and reasonable fees, expenses and
disbursements of counsel to each Agent and of counsel providing any opinions that any Agent or
Requisite Lenders may request in respect of the Collateral or the Liens created pursuant to the
Collateral Documents; (e) all the actual costs and reasonable fees, expenses and disbursements of
any auditors, accountants, consultants or appraisers; (f) all the actual costs and reasonable
expenses (including the reasonable fees, expenses and disbursements
of any appraisers, consultants, advisors and agents employed or retained by Collateral Agent
and its counsel) in connection with the custody or preservation of any of the Collateral; (g) all
other actual and reasonable costs and expenses incurred by each Agent in connection with the
syndication of the Loans and Commitments and the negotiation, preparation and execution of the
Credit Documents and any consents, amendments, waivers or other modifications thereto and the
transactions contemplated thereby; and (h) after the occurrence of a Default or an Event of
Default, all costs and expenses, including reasonable attorneys’ fees (including allocated costs of
internal counsel) and costs of settlement, incurred by any Agent and Lenders in enforcing any
Obligations of or in collecting any payments due from any Credit Party hereunder or under the other
Credit Documents by reason of such Default or Event of Default (including in connection with the
sale of, collection from, or other realization upon any of the Collateral or the enforcement of the
Guaranty) or in connection with any refinancing or restructuring of the credit arrangements
provided hereunder in the nature of a “work-out” or pursuant to any insolvency or bankruptcy cases
or proceedings. At the reasonable request of the Company, Agents shall, in its sole discretion,
use its commercially reasonable efforts to provide back-up documentation for any of the above
reimbursable costs, fees and expenses; provided, however, the inability to provide
such back-up documentation shall not be a reason for the any Credit Party to object to or refuse
reimbursement of any such costs, fees and expenses.



     10.3. Indemnity.



          (a) In addition to the payment of expenses pursuant to Section 10.2, whether or not the
transactions contemplated hereby shall be consummated, each Credit Party agrees to defend (subject
to Indemnitees’ selection of counsel), indemnify, pay and hold harmless, each Agent and Lender and
the officers, partners, directors, trustees, investment advisers, employees, agents and Affiliates
of each Agent and each Lender (each, an “Indemnitee”), from and against any and all Indemnified
Liabilities; provided, no Credit Party shall have any obligation to any Indemnitee
hereunder with respect to any Indemnified Liabilities to the extent such Indemnified Liabilities
arise from the gross negligence or willful misconduct of that Indemnitee. To the extent that the
undertakings to defend, indemnify, pay and hold harmless set forth in this Section




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10.3 may be
unenforceable in whole or in part because they are violative of any law or public policy, the
applicable Credit Party shall contribute the maximum portion that it is permitted to pay and
satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Indemnitees or any of them.




          (b) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit
Party hereby waives, any claim against Lenders, Agents and their respective Affiliates, directors,
employees, attorneys or 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 therefore is
based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in
connection with, arising out of, as a result of, or in any way related to, this Agreement or any
Credit 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 Holdings and Company
hereby waives, releases and agrees 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.




     10.4. Set-Off. In addition to any rights now or hereafter granted under applicable law and
not by way of limitation of any such rights, upon the occurrence of any Event of Default each
Lender is hereby authorized by each Credit Party at any time or from time to time subject to the
consent of Administrative Agent (such consent not to be unreasonably withheld or delayed), without
notice to any Credit Party or to any other Person (other than Administrative Agent), any such
notice being hereby expressly waived, to set off and to appropriate and to apply any and all
deposits (general or special, including Indebtedness evidenced by certificates of deposit, whether
matured or unmatured, but not including trust accounts) and any other Indebtedness at any time held
or owing by such Lender to or for the credit or the account of any Credit Party against and on
account of the obligations and liabilities of any Credit Party to such Lender hereunder, the
Letters of Credit and participations therein and under the other Credit Documents, including all
claims of any nature or description arising out of or connected hereto, the Letters of Credit and
participations therein or with any other Credit Document, irrespective of whether or not (a) such
Lender shall have made any demand hereunder or (b) the principal of or the interest on the Loans or
any amounts in respect of the Letters of Credit or any other amounts due hereunder shall have
become due and payable pursuant to Section 2 and although such obligations and liabilities, or any
of them, may be contingent or unmatured.



     10.5. Amendments and Waivers.



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




          (b) Affected Lenders’ Consent. Without the written consent of each Lender (other
than a Defaulting Lender) that would be affected thereby, no amendment, modification, termination,
or consent shall be effective if the effect thereof would:




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          (i) extend the scheduled final maturity of any Loan or Note;




          (ii) waive, reduce or postpone any Installment or other scheduled repayment (but not
prepayment);




          (iii) extend the stated expiration date of any Letter of Credit beyond the Revolving
Commitment Termination Date;




          (iv) reduce the rate of interest on any Loan (other than any waiver of any increase in
the interest rate applicable to any Loan pursuant to Section 2.10) or any fee payable
hereunder;




          (v) extend the time for payment of any such interest or fees;




          (vi) reduce the principal amount of any Loan or any reimbursement obligation in respect
of any Letter of Credit;




          (vii) amend, modify, terminate or waive any provision of Section 2.17, this Section
10.5(b) or Section 10.5(c);




          (viii) amend the definition of “Requisite Lenders” or “Pro Rata Share”;




          (ix) release all or substantially all of the Collateral or all or substantially all of
the Guarantors from the Guaranty except as expressly provided in the Credit Documents; or




          (x) consent to the assignment or transfer by any Credit Party of any of its rights and
obligations under any Credit Document.



          (c) Other Consents. No amendment, modification, termination or waiver of any
provision of the Credit Documents, or consent to any departure by any Credit Party therefrom,
shall:





          (i) increase any Commitment of any Lender over the amount thereof then in effect
without the consent of such Lender; provided, no amendment, modification or waiver
of any condition precedent, covenant, Default or Event of Default shall constitute an
increase in any Commitment of any Lender;




          (ii) amend, modify, terminate or waive any provision hereof relating to the Swing Line
Sublimit or the Swing Line Loans without the consent of Swing Line Lender;




          (iii) amend the definition of “Requisite Class Lenders” without the consent of
Requisite Class Lenders of each Class;




          (iv) amend or waive any mandatory prepayment or alter the required application of any
repayments or prepayments as between Classes pursuant to Section



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2.15 without the consent of
Requisite Class Lenders of each Class which is being allocated a lesser repayment or
prepayment as a result thereof; provided, Requisite Lenders may waive, in whole or
in part, any prepayment so long as the application, as between Classes, of any portion of
such prepayment which is still required to be made is not altered;




          (v) amend, modify, terminate or waive any obligation of Lenders relating to the
purchase of participations in Letters of Credit as provided in Section 2.4(e) without the
written consent of Administrative Agent and of Issuing Bank; or




          (vi) amend, modify, terminate or waive any provision of Section 9 as the same applies
to any Agent, or any other provision hereof as the same applies to the rights or obligations
of any Agent, in each case without the consent of such Agent.



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




     10.6. Successors and Assigns; Participations.



          (a) Generally. This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties hereto and the
successors and assigns of Lenders. No Credit Party’s rights or obligations hereunder nor any
interest therein may be assigned or delegated by any Credit Party without the prior written consent
of all Lenders. 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
and, to the extent expressly contemplated hereby, Affiliates of each of the Agents and Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.




          (b) Register. Company, Administrative Agent and Lenders shall deem and treat the
Persons listed as Lenders in the Register as the holders and owners of the corresponding
Commitments and Loans listed therein for all purposes hereof, and no assignment or transfer of any
such Commitment or Loan shall be effective, in each case, unless and until an Assignment Agreement
effecting the assignment or transfer thereof shall have been delivered to and accepted by
Administrative Agent and recorded in the Register as provided in Section 10.6(e). Prior to such
recordation, all amounts owed with respect to the applicable Commitment or Loan shall be owed to
the Lender listed in the Register as the owner thereof, and any request, authority or consent of
any Person who, at the time of making such request or giving such authority or consent, is listed
in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or
transferee of the corresponding Commitments or Loans.




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          (c) Right to Assign. Each Lender shall have the right at any time to sell, assign or
transfer all or a portion of its rights and obligations under this Agreement, including, without
limitation, all or a portion of its Commitment or Loans owing to it or other Obligation
(provided, however, that each such assignment shall be of a uniform, and not
varying, percentage of all rights and obligations under and in respect of any Loan and any related
Commitments):





          (i) to any Person meeting the criteria of clause (i) of the definition of the term of
“Eligible Assignee” upon the giving of notice to Company and Administrative Agent; and




          (ii) to any Person meeting the criteria of clause (ii) of the definition of the term of
“Eligible Assignee” and, in the case of assignments of Revolving Loans or Revolving
Commitments to any such Person (except in the case of assignments made by or to GSCP),
consented to by each of Company and Administrative Agent (such consent not to be (x)
unreasonably withheld or delayed or, (y) in the case of Company, required at any time an
Event of Default shall have occurred and then be continuing); provided, further each
such assignment pursuant to this Section 10.6(c)(ii) shall be in an aggregate amount of not
less than (A) $2,500,000 (or such lesser amount as may be agreed to by Company and
Administrative Agent or as shall constitute the aggregate amount of the Revolving
Commitments and Revolving Loans of the assigning Lender) with respect to the assignment of
the Revolving Commitments and Revolving Loans and (B) $1,000,000 (or such lesser amount as
may be agreed to by Company and Administrative Agent or as shall constitute the aggregate
amount of the Term Loan of the assigning Lender) with respect to the assignment of Term
Loans.



          (d) Mechanics. The assigning Lender and the assignee thereof shall execute and
deliver to Administrative Agent an Assignment Agreement, together with such forms, certificates or
other evidence, if any, with respect to United States federal income tax withholding matters as the
assignee under such Assignment Agreement may be required to deliver to Administrative Agent
pursuant to Section 2.20(c).




          (e) Notice of Assignment. Upon its receipt of a duly executed and completed
Assignment Agreement (and any forms, certificates or other evidence required by this Agreement in
connection therewith), Administrative Agent shall record the information contained in such
Assignment Agreement in the Register, shall give prompt notice thereof to Company and shall
maintain a copy of such Assignment Agreement.




          (f) Representations and Warranties of Assignee. Each Lender, upon execution and
delivery hereof or upon executing and delivering an Assignment Agreement, as the case may be,
represents and warrants as of the Effective Date or as of the applicable Effective Date (as defined
in the applicable Assignment Agreement) that (i) it is an Eligible Assignee; (ii) it has experience
and expertise in the making of or investing in commitments or loans such as the applicable
Commitments or Loans, as the case may be; and (iii) it will make or invest in, as the case may be,
its Commitments or Loans for its own account in the ordinary course of its business and without a
view to distribution of such Commitments or Loans within the meaning of the Securities Act or the
Exchange Act or other federal securities laws (it being understood that,




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subject to the provisions
of this Section 10.6, the disposition of such Commitments or Loans or any interests therein shall
at all times remain within its exclusive control).




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




          (h) Participations. Each Lender shall have the right at any time to sell one or more
participations to any Person (other than Holdings, any of its Subsidiaries or any of its
Affiliates) in all or any part of its Commitments, Loans or in any other Obligation. The holder of
any such participation, other than an Affiliate of the Lender granting such participation, shall
not be entitled to require such Lender to take or omit to take any action hereunder except with
respect to any amendment, modification or waiver that would (i) extend the final scheduled maturity
of any Loan, Note or Letter of Credit (unless such Letter of Credit is not extended beyond the
Revolving Commitment Termination Date) in which such participant is participating, or reduce the
rate or extend the time of payment of interest or fees thereon (except in connection with a waiver
of applicability of any post-default increase in interest rates) or reduce the principal amount
thereof, or increase the amount of the participant’s participation over the amount thereof then in
effect (it being understood that a waiver of any Default or Event of Default or of a mandatory
reduction in the Commitment shall not constitute a change in the terms of such participation, and
that an increase in any Commitment or Loan shall be permitted without the consent of any
participant if the participant’s participation is not increased as a result thereof), (ii) consent
to the assignment or transfer by any Credit Party of any of its rights and obligations under this
Agreement or (iii) release all or substantially all of the Collateral under the Collateral
Documents (except as expressly provided in the Credit Documents) supporting the Loans hereunder in
which such participant is participating. Company agrees that each participant shall




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be entitled to the benefits of Sections 2.18(c), 2.19 and 2.20 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to paragraph (c) of this Section;
provided, (i) a participant shall not be entitled to receive any greater payment under
Section 2.19 or 2.20 than the applicable Lender would have been entitled to receive with respect to
the participation sold to such participant, unless the sale of the participation to such
participant is made with Company’s prior written consent and (ii) a participant that would be a
Non-US Lender if it were a Lender shall not be entitled to the benefits of Section 2.20 unless
Company is notified of the participation sold to such participant and such participant agrees, for the benefit of
Company, to comply with Section 2.20 as though it were a Lender. To the extent permitted by law,
each participant also shall be entitled to the benefits of Section 10.4 as though it were a Lender,
provided such Participant agrees to be subject to Section 2.17 as though it were a Lender.




          (i) Certain Other Assignments. In addition to any other assignment permitted pursuant
to this Section 10.6, (i) any Lender may assign and/or pledge all or any portion of its Loans, the
other Obligations owed by or to such Lender, and its Notes, if any, to secure obligations of such
Lender including, without limitation, any Federal Reserve Bank as collateral security pursuant to
Regulation A of the Board of Governors of the Federal Reserve System and any operating circular
issued by such Federal Reserve Bank; provided, no Lender, as between Company and such
Lender, shall be relieved of any of its obligations hereunder as a result of any such assignment
and pledge, and provided further, in no event shall the applicable Federal Reserve
Bank, pledgee or trustee be considered to be a “Lender” or be entitled to require the assigning
Lender to take or omit to take any action hereunder.




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



     10.8. Survival of Representations, Warranties and Agreements. All representations, warranties
and agreements made herein shall survive the execution and delivery hereof and the making of any
Credit Extension. Notwithstanding anything herein or implied by law to the contrary, the
agreements of each Credit Party set forth in Sections 2.18(c), 2.19, 2.20, 10.2, 10.3 and 10.4 and
the agreements of Lenders set forth in Sections 2.17, 9.3(b) and 9.6 shall survive the payment of
the Loans, the cancellation or expiration of the Letters of Credit and the reimbursement of any
amounts drawn thereunder, and the termination hereof.



     10.9. No Waiver; Remedies Cumulative. No failure or delay on the part of any Agent or any
Lender in the exercise of any power, right or privilege hereunder or under any other Credit
Document shall impair such power, right or privilege or be construed to be a waiver of any default
or acquiescence therein, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other power, right or privilege.
The rights, powers and remedies given to each Agent and each Lender hereby are cumulative and shall
be in addition to and independent of all rights, powers and remedies existing by virtue of any
statute or rule of law or in any of the other Credit Documents or any of the Hedge Agreements. Any
forbearance or failure to exercise, and any delay in exercising, any



114









 




right, power or remedy
hereunder shall not impair any such right, power or remedy or be construed to be a waiver thereof,
nor shall it preclude the further exercise of any such right, power or remedy.




     10.10. Marshalling; Payments Set Aside. Neither any Agent nor any Lender shall be under any obligation to marshal any assets in
favor of any Credit Party or any other Person or against or in payment of any or all of the
Obligations. To the extent that any Credit Party makes a payment or payments to Administrative
Agent or Lenders (or to Administrative Agent, on behalf of Lenders), or Administrative Agent or
Lenders enforce any security interests or exercise their rights of setoff, and such payment or
payments or the proceeds of such enforcement or setoff or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a
trustee, receiver or any other party under any bankruptcy law, any other state or federal law,
common law or any equitable cause, then, to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied, and all Liens, rights and remedies therefore 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.



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



     10.12. Obligations Several; Independent Nature of Lenders’ Rights. The obligations of Lenders
hereunder are several and no Lender shall be responsible for the obligations or Commitment of any
other Lender hereunder. Nothing contained herein or in any other Credit Document, and no action
taken by Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The amounts payable at
any time hereunder to each Lender shall be a separate and independent debt, and each Lender shall
be entitled to protect and enforce its rights arising out hereof and it shall not be necessary for
any other Lender to be joined as an additional party in any proceeding for such purpose.



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



     10.14. APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.



     10.15. CONSENT TO JURISDICTION. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY CREDIT PARTY
ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT DOCUMENT, OR ANY OF THE OBLIGATIONS, MAY BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT



115









 




JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY
EXECUTING AND DELIVERING THIS AGREEMENT, EACH CREDIT PARTY, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, IRREVOCABLY (a) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND
VENUE OF SUCH COURTS; (b) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (c) AGREES THAT SERVICE OF
ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, TO THE APPLICABLE CREDIT PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH
SECTION 10.1; (d) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (c) ABOVE IS SUFFICIENT TO CONFER
PERSONAL JURISDICTION OVER THE APPLICABLE CREDIT PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT,
AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (e) AGREES 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.




     10.16. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY
OF THE OTHER CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS
LOAN TRANSACTION OR THE LENDER/COMPANY RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT
AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO
ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT
EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE
TO RELY ON THIS WAIVER IN 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 10.16 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 CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.



116









 





     10.17. Confidentiality. Each Lender shall hold all non-public information regarding Company
and its Subsidiaries and their businesses identified as such by Company and obtained by such Lender
pursuant to the requirements hereof in accordance with such Lender’s customary procedures for
handling confidential information of such nature and in accordance with prudent lending or
investing practices, it being understood and agreed by Company that, in any event, a Lender may
make (i) disclosures of such information to Affiliates of such Lender and to their agents and
advisors (and to other persons authorized by a Lender or Agent to organize, present or disseminate
such information in connection with disclosures otherwise made in accordance with this Section
10.17), (ii) disclosures of such information reasonably required by any bona fide or potential
assignee, transferee or participant in connection with the contemplated assignment, transfer or
participation by such Lender of any Loans or any participations therein or to any pledgee referred
to in Section 10.6(i) or by any direct or indirect contractual counterparties (or the professional
advisors thereto) in Hedge Agreements (provided, such pledgee or counterparties and advisors are
advised of and agree to be bound by the provisions of this Section 10.17), (iii) disclosure to any
rating agency when required by it, provided that, prior to any disclosure, such rating
agency shall undertake in writing to preserve the confidentiality of any confidential information
relating to the Credit Parties received by it from any of the Agents or any Lender, and (iv)
disclosures required or requested by any governmental agency or representative thereof or by the
NAIC or pursuant to legal or judicial process; provided, unless specifically prohibited by
applicable law or court order, each Lender shall make reasonable efforts to notify Company of any
request by any governmental agency or representative thereof (other than any such request in
connection with any examination of the financial condition or other routine examination of such
Lender by such governmental agency) for disclosure of any such non-public information prior to
disclosure of such information. Notwithstanding anything to the contrary set forth herein, each
party (and each of their respective employees, representatives or other agents) may disclose to any
and all persons, without limitations of any kind, the tax treatment and tax structure of the
transactions contemplated by this Agreement and all materials of any kind (including opinions and
other tax analyses) that are provided to any such party relating to such tax treatment and tax
structure. However, any information relating to the tax treatment or tax structure shall remain
subject to the confidentiality provisions hereof (and the foregoing sentence shall not apply) to
the extent reasonably necessary to enable the parties hereto, their respective Affiliates, and
their and their respective Affiliates’ directors and employees to comply with applicable securities
laws. For this purpose, “tax structure” means any facts relevant to the federal income tax
treatment of the transactions contemplated by this Agreement but does not include information
relating to the identity of any of the parties hereto or any of their respective Affiliates.



     10.18. Press Releases and Related Matters. Each Credit Party executing this Agreement agrees
that neither it nor its Affiliates will in the future issue any press releases or other public
disclosure using the name of GECC or its affiliates or referring to this Agreement or the other
Credit Documents without at least two (2) Business Days’ prior notice to GECC and without the prior
written consent of GECC unless (and only to the extent that) such Credit Party or Affiliate is
required to do so under law and then, in any event, such Credit Party or Affiliate will consult
with GECC before issuing such press
release or other public disclosure. Each Credit Party consents to the publication by
Administrative Agent or any Lender of advertising material relating to the financing transactions
contemplated by this Agreement using Company’s name, product photographs, logo or trademark.
Administrative Agent or such Lender shall provide a



117









 




draft of any advertising material to each
Credit Party for review and comment prior to the publication thereof. Administrative Agent
reserves the right to provide to industry trade organizations information necessary and customary
for inclusion in league table measurements.




     10.19. Usury Savings Clause. Notwithstanding any other provision herein, the aggregate
interest rate charged with respect to any of the Obligations, including all charges or fees in
connection therewith deemed in the nature of interest under applicable law shall not exceed the
Highest Lawful Rate. If the rate of interest (determined without regard to the preceding sentence)
under this Agreement at any time exceeds the Highest Lawful Rate, the outstanding amount of the
Loans made hereunder shall bear interest at the Highest Lawful Rate until the total amount of
interest due hereunder equals the amount of interest which would have been due hereunder if the
stated rates of interest set forth in this Agreement had at all times been in effect. In addition,
if when the Loans made hereunder are repaid in full the total interest due hereunder (taking into
account the increase provided for above) is less than the total amount of interest which would have
been due hereunder if the stated rates of interest set forth in this Agreement had at all times
been in effect, then to the extent permitted by law, Company shall pay to Administrative Agent an
amount equal to the difference between the amount of interest paid and the amount of interest which
would have been paid if the Highest Lawful Rate had at all times been in effect. Notwithstanding
the foregoing, it is the intention of Lenders and Company to conform strictly to any applicable
usury laws. Accordingly, if any Lender contracts for, charges, or receives any consideration which
constitutes interest in excess of the Highest Lawful Rate, then any such excess shall be cancelled
automatically and, if previously paid, shall at such Lender’s option be applied to the outstanding
amount of the Loans made hereunder or be refunded to Company.



     10.20. Reaffirmation and Grant of Security Interest.



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




118









 








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




     10.21. Counterparts. This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.



     10.22. USA PATRIOT Act. Each Lender hereby notifies the Company that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act"), it is required to obtain, verify and record information that identifies the
Company, which information includes the name and address of the Company and other information that
will allow such Lender to identify the Company in accordance with the Act.



     10.23. Effectiveness. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto and receipt by Company and Administrative Agent of
written or telephonic notification of such execution and authorization of delivery thereof. It is
the intention of each of the parties hereto that the Existing Credit Agreement be amended and
restated so as to preserve the perfection and priority of all security interests securing
indebtedness and obligations under the Existing Credit Agreement and that all Indebtedness and
Obligations of Company and its Subsidiaries hereunder and thereunder shall be secured by the
Collateral Documents and that this Agreement does not constitute a novation of the obligations and
liabilities existing under the Existing Credit Agreement. The parties hereto further acknowledge
and agree that this Agreement constitutes an amendment of the Existing Credit Agreement made under
and in accordance with the terms of subsection 10.5 of the Existing Credit Agreement. In addition,
unless specifically amended hereby, each of the Credit Documents, the Exhibits and Schedules to
the Existing Credit Agreement shall continue in full force and effect and that, from and after
the Effective Date, all references to the “Credit Agreement” contained therein shall be deemed to
refer to this Agreement.



     10.24. Reinstatement. This Agreement shall remain in full force and effect and continue to be
effective should any petition be filed by or against any Credit Party for liquidation or
reorganization, should any Credit Party become insolvent or make an assignment for the benefit of
any creditor or creditors or should a receiver or trustee be appointed for all or any significant
part of any Credit Party’s assets, and shall continue to be effective or to be reinstated, as the
case may be, if at any time payment and performance of the Obligations, or any part thereof, is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee of the Obligations, whether as a “voidable preference,” “fraudulent
conveyance,” or otherwise, all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded, reduced, restored or



119









 




returned, the
Obligations shall be reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.




[Remainder of page intentionally left blank]





120










 






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



	 	 	 	 	 	 	 
	 	 	AMERICAN REPROGRAPHICS COMPANY, L.L.C.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ S. Chandramohan	 	 
	 

	 	 	 	 

	 	 
	 	 	Name: Sathiyamurthy Chandramohan	 	 
	 	 	Title: Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	AMERICAN REPROGRAPHICS COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ S. Chandramohan	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Sathiyamurthy Chandramohan	 	 
	 	 	Title: Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	AMERICAN REPROGRAPHICS
HOLDINGS, L.L.C.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ S. Chandramohan	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Sathiyamurthy Chandramohan	 	 
	 	 	Title: Chief Executive Officer	 	 






 









 






GUARANTOR SUBSIDIARIES




	 	 	 	 	 	 	 
	 	 	ARC ACQUISITION CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ S. Chandramohan	 	 
	 

	 	 	 	 

	 	 
	 	 	Name: Sathiyamurthy Chandramohan	 	 
	 	 	Title: Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	BLUE PRINT SERVICE COMPANY,
INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ S. Chandramohan	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Sathiyamurthy Chandramohan	 	 
	 	 	Title: Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	LEET-MELBROOK, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ S. Chandramohan	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Sathiyamurthy Chandramohan	 	 
	 	 	Title: Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	PENINSULA BLUEPRINT, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ S. Chandramohan	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Sathiyamurthy Chandramohan	 	 
	 	 	Title: Chief Executive Officer	 	 
	 
	 	 	QUALITY REPROGRAPHIC
SERVICES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ S. Chandramohan	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Sathiyamurthy Chandramohan	 	 
	 	 	Title: Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	MIRROR PLUS TECHNOLOGIES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ S. Chandramohan	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Sathiyamurthy Chandramohan	 	 
	 	 	Title: Chief Executive Officer	 	 






 









 





	 	 	 	 	 	 	 
	 	 	E. PAVILION, L.L.C.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ S. Chandramohan	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Sathiyamurthy Chandramohan	 	 
	 	 	Title: Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	FRANKLIN GRAPHICS CORPORATION	 	 
	 
	 

	 	By:	 	/s/ S. Chandramohan	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Sathiyamurthy Chandramohan	 	 
	 	 	Title: Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	ENGINEERING REPRO SYSTEMS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ S. Chandramohan	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Sathiyamurthy Chandramohan	 	 
	 	 	Title: Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	DUNN BLUE PRINT COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ S. Chandramohan	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Sathiyamurthy Chandramohan	 	 
	 	 	Title: Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	OCB, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ S. Chandramohan	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Sathiyamurthy Chandramohan	 	 
	 	 	Title: Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	RIDGWAY’S, LTD.	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	By: Ridway’s GP, LLC	 	 
	 

	 	 	 	       its General Partner	 	 
	 
	 

	 	By:	 	/s/ S. Chandramohan	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Sathiyamurthy Chandramohan	 	 
	 	 	Title: Manager	 	 






 









 





	 	 	 	 	 	 	 
	 	 	REPROGRAPHICS NORTHWEST, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ S. Chandramohan	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Sathiyamurthy Chandramohan	 	 
	 	 	Title: Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	WILCO REPROGRAPHICS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ S. Chandramohan	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Sathiyamurthy Chandramohan	 	 
	 	 	Title: Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	BPI REPRO, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ S. Chandramohan	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Sathiyamurthy Chandramohan	 	 
	 	 	Title: Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	RIDGWAY’S GP, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ S. Chandramohan	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Sathiyamurthy Chandramohan	 	 
	 	 	Title: Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	RIDGWAY’S LP, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ S. Chandramohan	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Sathiyamurthy Chandramohan	 	 
	 	 	Title: Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	THE PEIR GROUP, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ S. Chandramohan	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Sathiyamurthy Chandramohan	 	 
	 	 	Title: Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	THE PEIR GROUP INTERNATIONAL, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ S. Chandramohan	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Sathiyamurthy Chandramohan	 	 
	 	 	Title: Chief Executive Officer	 	 






 









 






	 	 	 	 	 	 	 
	 	 	LICENSING SERVICES INTERNATIONAL, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ S. Chandramohan	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Sathiyamurthy Chandramohan	 	 
	 	 	Title: Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	PLANWELL, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ S. Chandramohan	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Sathiyamurthy Chandramohan	 	 
	 	 	Title: Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	SUBHUB, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ S. Chandramohan	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Sathiyamurthy Chandramohan	 	 
	 	 	Title: Chief Executive Officer	 	 
	 	 	 	 	 
	 	 	GEORGIA BLUEPRINT COMPANY, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ S. Chandramohan	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Sathiyamurthy Chandramohan	 	 
	 	 	Title: Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	CHARLES A. TORRENCE COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/  S. Chandramohan	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Sathiyamurthy Chandramohan	 	 
	 	 	Title: Chief Executive Officer	 	 







 









 






	 	 	 	 	 
	LENDERS
	 	 	 	 
	 
	 	 	 	 
	 	 	GOLDMAN SACHS CREDIT PARTNERS L.P.,
	 	 	as Sole Lead Arranger and Joint Bookrunner
	 
	 	 	 	 
	 

	 	By:	 	/s/ Elizabeth Fisher
	 

	 	 	 	 
	 

	 	 	 	Authorized Signatory






 









 






	 	 	 	 	 
	 	 	GENERAL ELECTRIC CAPITAL

CORPORATION,
	 	 	as Administrative Agent, Collateral Agent, Swing
	 	 	Line Lender, Issuing Bank and a Lender
	 
	 	 	 	 
	 

	 	By:	 	/s/ Ken A. Brown
	 

	 	 	 	 
	 

	 	 	 	Name: Ken A. Brown
	 

	 	 	 	Title: Duly Authorized Signatory






 









 






	 	 	 	 	 
	 	 	LASALLE BANK NATIONAL ASSOCIATION,
	 	 	as a Lender
	 
	 	 	 	 
	 

	 	By:	 	/s/ Keith J. Cable
	 

	 	 	 	 
	 

	 	 	 	Name: Keith J. Cable
	 

	 	 	 	Title: Vice President






 









 






APPENDIX A

TO CREDIT AND GUARANTY AGREEMENT




Notice Addresses




AMERICAN REPROGRAPHICS COMPANY, L.L.C.

700 North Central Avenue, Suite 550

Glendale, CA 91203

Attention: Chief Financial Officer

Telecopier: (626) 441-6649




AMERICAN REPROGRAPHICS HOLDINGS, L.L.C.

700 North Central Avenue, Suite 550

Glendale, CA 91203

Attention: Chief Financial Officer

Telecopier: (626) 441-6649




FOR EACH GUARANTOR SUBSIDIARY:

700 North Central Avenue, Suite 550

Glendale, CA 91203

Attention: Chief Financial Officer

Telecopier: (626) 441-6649




in each case, with a copy to:




Code Hennessy & Simmons

10 South Wacker Drive, Suite 3175

Chicago, IL 60606




Attention: Thomas J. Formolo

Telecopier: (312) 876-3851




APPENDIX-B-1














 








GOLDMAN SACHS CREDIT PARTNERS L.P.,

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



Goldman Sachs Credit Partners L.P.

85 Broad Street

New York, New York 10004

Attention: Elizabeth Fischer

Telecopier: (212) 357-9110

e-mail: elizabeth.fischer@gs.com




with a copy to:



Goldman Sachs Credit Partners L.P.

30 Hudson Street

Jersey City, NJ 07302-4699

Attention: Pedro Ramirez

Telecopier: (917) 343-8319




APPENDIX-B-2














 








GENERAL ELECTRIC CAPITAL CORPORATION,

as Administrative Agent, Collateral Agent,

Swing Line Lender, Issuing Bank and a Lender




Administrative Agent’s, Collateral Agent’s, Swing Line Lender’s

And Issuing Bank’s Principal Office:



General Electric Capital Corporation

500 West Monroe Street, 17th Floor

Chicago, Illinois 60661

Attention: Ken A. Brown

Telecopier: 312-463-3848




in each case, with a copy to:



General Electric Capital Corporation

500 West Monroe Street, 16th Floor

Chicago, Illinois 60661

Attention: Steven Roth, Corporate Counsel

Telecopier: 312-441-6876




APPENDIX-B-3














 








SCHEDULE 6.5(f)




Permitted Cash Payments of Additional Earn-Out Obligations




	 	 	 	 	 
	 	 	Permitted Cash Payment of	 
	 	 	Additional Earn-Out	 
	Fiscal Year	 	Obligations	 
	2005
	 	$	7,000,000	 
	2006
	 	$	9,000,000	 
	2007 and thereafter
	 	$	11,000,000	 






SCHEDULE-6.5(f)
















 






EXHIBIT A-1 TO

SECOND AMENDED AND RESTATED

CREDIT AND GUARANTY AGREEMENT




FUNDING NOTICE




     Reference is made to the Second Amended and Restated Credit and Guaranty Agreement, dated as
of December [___], 2005 (as it may be amended, supplemented or otherwise modified, the “Credit
Agreement”; the terms defined therein and not otherwise defined herein being used herein as therein
defined), by and among AMERICAN REPROGRAPHICS COMPANY, L.L.C., a California limited liability
company (“Company”), AMERICAN REPROGRAPHICS HOLDINGS, L.L.C. (f/k/a Ford Graphics Holdings,
L.L.C.), a California limited liability company, AMERICAN REPROGRAPHICS COMPANY, a Delaware
corporation, certain Subsidiaries of Company, as Guarantors, the Lenders party thereto from time to
time, GOLDMAN SACHS CREDIT PARTNERS L.P., as Sole Lead Arranger and Joint Book Runner, JPMORGAN
CHASE BANK, N.A., as Syndication Agent, JPMORGAN SECURITIES INC., as Joint Bookrunner, and GENERAL
ELECTRIC CAPITAL CORPORATION as Administrative Agent and as Collateral Agent.



     Pursuant to Sections 2.2 and 2.3 of the Credit Agreement, Company desires that Lenders make
the following Loans to Company in accordance with the applicable terms and conditions of the Credit
Agreement on [                    , 20___] (the “Credit Date”):



	 	 	 	 	 	 	 
	1.	 	Revolving Loans	 	 
	 
	 	 	 	 	 	 
	 

	 	o
	 	Index Rate Loans:	 	 
	 
	 	 	 	 	 	 
	 

	 	o
	 	Eurodollar Rate Loans, with an
initial Interest Period of
[                    ] month(s):
	 	$[___,___,___]
$[___,___,___]
	2.	 	Swing Line Loans:	 	$[___,___,___]






     Company hereby certifies that:




     (i) after making the Loans requested on the Credit Date, the Total Utilization of
Revolving Commitments shall not exceed the Revolving Commitments then in effect;




     (ii) as of the Credit Date, the representations and warranties contained in each of the
Credit Documents are true, correct and complete in all material respects on and as of such
Credit Date to the same extent as though made on and as of such date, except to the extent
such representations and warranties specifically relate to an earlier date, in which case
such representations and warranties are true, correct and complete in all material respects
on and as of such earlier date;



EXHIBIT A-1-1









 






     (iii) as of the Credit Date no injunction or other restraining order shall have been
issued and no hearing to cause an injunction or other restraining order to be issued
shall be pending or noticed with respect to any action, suit or proceeding seeking to
enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief
as a result of, the borrowing contemplated hereby; and




     (iv) as of the Credit Date, no event has occurred and is continuing or would result
from the consummation of the borrowing contemplated hereby that would constitute an Event of
Default or a Default.



	 	 	 	 	 
	Date: [                    , 20__]       	AMERICAN REPROGRAPHICS COMPANY,
L.L.C.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



EXHIBIT A-1-2









 






	 	 	 	 	 



EXHIBIT B-1 TO

SECOND AMENDED AND RESTATED

CREDIT AND GUARANTY AGREEMENT




TRANCHE C TERM LOAN NOTE




			
	 	 	 
	$[1][___,___,___]
	 	[____________,20___]
	 
	 	New York, New York






     FOR VALUE RECEIVED, AMERICAN REPROGRAPHICS COMPANY, L.L.C., a California limited liability
company (“Company”), promises to pay [NAME OF LENDER] (“Payee”) or its registered assigns the
principal amount of [DOLLARS] ($[1][___,___,___]) in the installments referred to below.



     Company also promises to pay interest on the unpaid principal amount hereof, from the date
hereof until paid in full, at the rates and at the times which shall be determined in accordance
with the provisions of that certain Second Amended and Restated Credit and Guaranty Agreement,
dated as of December [___], 2005 (as it may be amended, supplemented or otherwise modified, the
“Credit Agreement”; the terms defined therein and not otherwise defined herein being used herein as
therein defined), by and among Company, AMERICAN REPROGRAPHICS HOLDINGS, L.L.C. (f/k/a Ford
Graphics Holdings, L.L.C.), a California limited liability company, AMERICAN REPROGRAPHICS COMPANY,
a Delaware corporation, certain Subsidiaries of Company, as Guarantors, the Lenders party thereto
from time to time, GOLDMAN SACHS CREDIT PARTNERS L.P., as Sole Lead Arranger and Joint Book Runner,
JPMORGAN CHASE BANK, N.A., as Syndication Agent, JPMORGAN SECURITIES INC., as Joint Bookrunner, and
GENERAL ELECTRIC CAPITAL CORPORATION as Administrative Agent and as Collateral Agent.



     Company shall make principal payments on this Note as set forth in Section 2.12 of the Credit
Agreement.



     This Note is one of the “Tranche C Term Loan Notes” in the aggregate principal amount of
$[___] and is issued pursuant to and entitled to the benefits of the Credit Agreement, to which
reference is hereby made for a more complete statement of the terms and conditions under which the
Term Loan evidenced hereby was made and is to be repaid and may be transferred or assigned.



     All payments of principal and interest in respect of this Note shall be made in lawful money
of the United States of America in same day funds at the Principal Office of Administrative Agent
or at such other place as shall be designated in writing for such purpose in accordance with the
terms of the Credit Agreement. Unless and until an Assignment Agreement effecting the assignment
or transfer of the obligations evidenced hereby shall have been accepted by Administrative Agent
and recorded in the Register, Company, each Agent and Lenders shall be entitled to deem and treat
Payee as the owner and holder of this Note and the obligations





 




			
	 	 	[1] Lender’s Tranche C Term Loan Commitment




EXHIBIT B-1-1









 









evidenced hereby. Payee hereby agrees, by its acceptance hereof, that before disposing of
this Note or any part hereof it will make a notation hereon of all principal payments previously
made hereunder and of the date to which interest hereon has been paid; provided, the failure to
make a notation of any payment made on this Note shall not limit or otherwise affect the
obligations of Company hereunder with respect to payments of principal of or interest on this Note.




     This Note is subject to mandatory prepayment and to prepayment at the option of Company, each
as provided in the Credit Agreement.



     THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY AND PAYEE HEREUNDER SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.



     Upon the occurrence of an Event of Default, the unpaid balance of the principal amount of this
Note, together with all accrued and unpaid interest thereon, may become, or may be declared to be,
due and payable in the manner, upon the conditions and with the effect provided in the Credit
Agreement.



     The terms of this Note are subject to amendment only in the manner provided in the Credit
Agreement.



     No reference herein to the Credit Agreement and no provision of this Note or the Credit
Agreement shall alter or impair the obligations of Company, which are absolute and unconditional,
to pay the principal of and interest on this Note at the place, at the respective times, and in the
currency herein prescribed.



     Company promises to pay all costs and expenses, including reasonable attorneys’ fees, all as
provided in the Credit Agreement, incurred in the collection and enforcement of this Note. Company
and any endorsers of this Note hereby consent to renewals and extensions of time at or after the
maturity hereof, without notice, and hereby waive diligence, presentment, protest, demand notice of
every kind and, to the full extent permitted by law, the right to plead any statute of limitations
as a defense to any demand hereunder.



[Remainder of page intentionally left blank]




EXHIBIT B-1-2









 





     IN WITNESS WHEREOF, Company has caused this Note to be duly executed and delivered by its
officer thereunto duly authorized as of the date and at the place first written above.



	 	 	 	 	 
	 	AMERICAN REPROGRAPHICS COMPANY, L.L.C.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



EXHIBIT B-1-3









 






	 	 	 	 	 



EXHIBIT C TO

SECOND AMENDED AND RESTATED

CREDIT AND GUARANTY AGREEMENT




COMPLIANCE CERTIFICATE




THE UNDERSIGNED HEREBY CERTIFIES AS FOLLOWS:





     1. I am the Chief Financial Officer of each of AMERICAN REPROGRAPHICS HOLDINGS, L.L.C. (“AR
Holdings”) and AMERICAN REPROGRAPHICS COMPANY, L.L.C.
(“Company”).



     2. I have reviewed the terms of that certain Second Amended and Restated Credit and Guaranty
Agreement, dated as of December [___], 2005 (as it may be amended, supplemented or otherwise
modified, the “Credit Agreement”; the terms defined therein and not otherwise defined herein being
used herein as therein defined), by and among Company, AR Holdings, AMERICAN REPROGRAPHICS COMPANY,
a Delaware corporation, certain Subsidiaries of Company, as Guarantors, the Lenders party thereto
from time to time, GOLDMAN SACHS CREDIT PARTNERS L.P., as Sole Lead Arranger and Joint Book Runner,
JPMORGAN CHASE BANK, N.A., as Syndication Agent, JPMORGAN SECURITIES INC., as Joint Bookrunner, and
GENERAL ELECTRIC CAPITAL CORPORATION as Administrative Agent and as Collateral Agent, and I have
made, or have caused to be made under my supervision, a review in reasonable detail of the
transactions and condition of Company and its Subsidiaries during the accounting period covered by
the attached financial statements.



     3. The examination described in paragraph 2 above did not disclose, and I have no knowledge
of, the existence of any condition or event which constitutes an Event of Default or Default during
or at the end of the accounting period covered by the attached financial statements or as of the
date of this Certificate, except as set forth in a separate attachment, if any, to this
Certificate, describing in detail, the nature of the condition or event, the period during which it
has existed and the action which Company has taken, is taking, or proposes to take with respect to
each such condition or event.



     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 [mm/dd/yy] pursuant to Section 5.1(d) of the Credit Agreement.



[Remainder of page intentionally left blank]




EXHIBIT C-1









 





	 	 	 	 	 
	 	AMERICAN REPROGRAPHICS HOLDINGS, L.L.C.

AMERICAN REPROGRAPHICS COMPANY, L.L.C.

 	 
	 	By:  	 	 
	 	 	Name:  	Mark W. Legg 	 
	 	 	Title:  	Chief Financial Officer 	 



EXHIBIT C-2









 






	 	 	 	 	 



ANNEX A TO

COMPLIANCE CERTIFICATE




FOR THE FISCAL [QUARTER] [YEAR] ENDING [                      , 200   ].




	 	 	 	 	 	 	 	 	 
	1. Consolidated
Adjusted EBITDA: (i) - (ii) =	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	 

	 	(i)
	 	(a)
	 	Consolidated Net Income:
	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	(b)
	 	Consolidated Interest Expense:
	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	(c)
	 	provisions for taxes based on income:
	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	(d)
	 	total depreciation expense:
	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	(e)
	 	total amortization expense:
	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	(f)
	 	other non-Cash items reducing Consolidated Net Income1:
	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	 	 	(ii)	 	other non-Cash items increasing Consolidated Net Income2:	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	2. Consolidated
Adjusted EBITDAR: (i) + (ii) =	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	 	 	(i)	 	Consolidated Adjusted EBITDA:	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	 	 	(ii)	 	Consolidated Rental Payments:	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	3. Consolidated
Capital Expenditures:	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	4. Consolidated Cash
Interest Expense:	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	5. Consolidated
Current Assets:	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	6. Consolidated
Current Liabilities:	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	7. Consolidated
Excess Cash Flow: (i) - (ii) =	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	 

	 	(i)
	 	(a)
	 	Consolidated Adjusted EBITDA:
	 	$[___,___,___]








 




			
	1	 	Excluding any such non-Cash item to the extent that it
represents an accrual or reserve for potential Cash items in any future period
or amortization of a prepaid Cash item that were paid in a prior period.
	 
	2	 	Excluding any such non-Cash item to the extent it
represents the reversal of an accrual or reserve for potential Cash item in any
prior period.




EXHIBIT C-A-1









 










	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(b)
	 	Consolidated Working Capital Adjustment:
	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	 

	 	(ii)
	 	(a)
	 	voluntary and scheduled repayments
of Consolidated Total
Debt3:
	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	(b)
	 	Consolidated Capital
Expenditures4:
	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	(c)
	 	Consolidated Cash Interest Expense:
	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	(d)
	 	the provision for current taxes based on
income of Holdings and its Subsidiaries
and payable in cash with respect to such
period, and any Permitted Tax Distributions
payable in cash with respect to such period:
	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	(e)
	 	the cash portion of any payment of any
Earn-Out Obligation made by Company
during such period:
	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	(f)
	 	any scheduled repayments under any Seller

Subordinated Notes made by Company made

in Cash during such period:
	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	(g)
	 	the cash portion of any payment made with
respect to a Permitted Acquisition completed
during such period:
	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	(h)
	 	the cash portion of any payments made during
such period in connection with any repurchases
of Holdings’ Capital Stock from deceased,
disabled, terminated or retired employees permitted
under Section 6.5(e):
	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	8. Consolidated Fixed Charges: (i) + (ii) + (iii) + (iv) + (v) =	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	 	 	(i)	 	Consolidated Cash Interest Expense:	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 







 




			
	 	 	3 Excluding (i) repayments of Revolving Loans or Swing
Line Loans except to the extent (x) such Revolving Loans were made on the
Closing Date and are repaid prior to the end of Fiscal Year 2004 and such
repayment amount does not exceed 75% of the aggregate amount of Revolving Loans
made on the Closing Date or (y) the Revolving Commitments are permanently
reduced in connection with such repayments and (ii) repurchases of Term Loans
made pursuant to Section 2.13(c).
	 
	 	 	4 Net of any proceeds of (y) any related financings with
respect to such expenditures and (z) any sales of assets used to finance such
expenditures.




EXHIBIT C-A-2









 










	 	 	 	 	 	 	 	 	 
	 	 	(ii)	 	scheduled payments of principal on Consolidated Total Debt:	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 
	 	 	(iii)	 	Consolidated Rental Payments:	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	 	 	(iv)	 	payments of Earn-Out Obligations required to be
made by Company or any of its Subsidiaries for such period:	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	 	 	(v)	 	scheduled debt repayments required to be made by Company
or any of its Subsidiaries under the Seller Subordinated Notes
for such period: $	 	[___,___,___]
	 

	 	 	 	 	 	 	 	 
	9. Consolidated Interest Expense:	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	10. Consolidated Net Income: (i) - (ii) =	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	 	 	(i)	 	the net income (or loss) of Holdings and its Subsidiaries
on a consolidated basis for such period taken as a single
accounting period determined in conformity with GAAP:	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	 

	 	(ii)
	 	(a)
	 	the income (or loss) of any Person
(other than a Subsidiary of Holdings)
in which any other Person
(other than Holdings or any of its Subsidiaries)
has a joint interest, except to the extent of
the amount of dividends or other distributions
actually paid to Holdings or
any of its Subsidiaries by such Person during such
period:
	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	(b)
	 	the income (or loss) of any Person accrued
prior to the date it becomes a Subsidiary of
Holdings or is merged into or consolidated
with Holdings or any of its Subsidiaries or that
Person’s assets are acquired by Holdings
or any of its Subsidiaries:
	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	(c)
	 	the income of any Subsidiary of Holdings
to the extent that the declaration or payment
of dividends or similar distributions by that
Subsidiary of that income is not at the time
permitted by operation of the terms of its charter
or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation
applicable to that Subsidiary:
	 	$[___,___,___]






EXHIBIT C-A-3









 





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	(d)	 	any after-tax gains or losses attributable to
Asset Sales or returned surplus assets
of any Pension Plan:	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	(e)	 	to the extent not included in clauses (ii)(a)
through (d) above, any net extraordinary
gains or net non-cash extraordinary losses:	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 	 	 
	11. Consolidated Rental Payments:	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 	 	 
	12. Consolidated Total Debt:	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 	 	 
	13. Consolidated Working Capital: (i) - (ii) =	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 	 	 
	 	 	(i)	 	Consolidated Current Assets:	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 	 	 
	 	 	(ii)	 	Consolidated Current Liabilities:	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 	 	 
	14. Consolidated Working Capital Adjustment: (i) - (ii) =	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 	 	 
	 	 	(i)	 	Consolidated Working Capital as of the beginning of such period:	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 	 	 
	 	 	(ii)	 	Consolidated Working Capital as of the end of such period:	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 	 	 
	15. Fixed Charge Coverage Ratio: (i)/(ii) =	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 	 	(i)	 	(a)-(b)	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	(a)	 	Consolidated Adjusted EBITDAR

for the four-Fiscal Quarter Period then ended:	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(b)
	 	i.
	 	cash payments made in respect
of Consolidated Capital
Expenditures5:
	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	ii.
	 	the provision for current taxes based on
income of Company and its Subsidiaries
and payable in cash with respect to such
period, and any Permitted Tax
Distributions payable in cash with respect
to such period:
	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	 	 	 
	 	 	(ii)	 	Consolidated Fixed Charges

for such four-Fiscal Quarter Period:	 	$[___,___,___]








 




			
	 	 	5 Net of any proceeds of any related financings with
respect to such expenditures.




EXHIBIT C-A-4









 










	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Actual:    
	 	_.___:1.00
	 

	 	 	 	 	 	 	 	Required:
	 	_.___:1.00
	16. Interest Coverage Ratio: (i)/(ii) =	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(i)	 	Consolidated Adjusted EBITDAR

for the four-Fiscal Quarter Period then ended:	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(ii)	 	(a) Consolidated Cash Interest Expense:	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	(b) Consolidated Rental Payments:	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Actual:    
	 	_.___:1.00
	 

	 	 	 	 	 	 	 	Required:
	 	_.___:1.00
	17. Leverage Ratio: (i)/(ii) =	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(i)	 	Consolidated Total Debt as of such day:	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(ii)	 	Consolidated Adjusted EBITDA

for the four-Fiscal Quarter period ending on such date:	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Actual:    
	 	_.___:1.00
	 

	 	 	 	 	 	 	 	Required:
	 	_.___:1.00
	 
	 	 	 	 	 	 	 	 	 	 
	18. Maximum Consolidated Capital Expenditures: (i) + (ii) =	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(i)	 	Permitted Consolidated Capital Expenditures for

current Fiscal Year:	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(ii)	 	the excess, if any, (but in no event more than
$1,000,000 of such amount for the previous Fiscal Year
(as adjusted in accordance with this proviso)
over the actual amount of Consolidated Capital
Expenditures for such previous Fiscal Year:	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Actual:     
	 	$[___,___,___]
	 

	 	 	 	 	 	 	 	Maximum:
	 	$[___,___,___]







EXHIBIT C-A-5









 






EXHIBIT E TO

SECOND AMENDED AND RESTATED

CREDIT AND GUARANTY AGREEMENT




ASSIGNMENT AGREEMENT




     This
Assignment 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, 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 or
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 Fund1]
	 
	 	 	 	 
	3.

	 	Borrower:
	 	American Reprographics Company, L.L.C.
	 
	 	 	 	 
	4.

	 	Administrative Agent:
	 	General Electric Capital Corporation,

as the administrative agent under the

Credit Agreement
	 
	 	 	 	 
	5.

	 	Credit Agreement:
	 	The Second Amended and Restated Credit
Agreement dated as of December [___], 2005
among American Reprographics Company,
L.L.C., American Reprographics Company
Holdings, L.L.C., American Reprographics
Company, the Lenders parties thereto,
General Electric Capital Corporation, as
Administrative Agent, and the other agents
parties thereto








 




			
	 	 	1 Select as applicable.





EXHIBIT E-1









 






	6.	 	Assigned Interest:





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Aggregate Amount of	 	 	Amount of	 	 	Percentage Assigned	 
	 	 	 	 	 	 	Commitment/Loans	 	 	Commitment/Loans	 	 	of Commitment/	 
	 	 	Facility Assigned	 	 	for all Lenders	 	 	Assigned	 	 	Loans2	 
	 
	 	 	 	3	 	$	 	 	 	$	 	 	 	 	 	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	$	 	 	 	$	 	 	 	 	 	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	$	 	 	 	$	 	 	 	 	 	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 




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:








 




			
	2	 	Set forth, to at least 9 decimals, as a percentage
of the Commitment/Loans of all Lenders thereunder.
	 
	3	 	Fill in the appropriate terminology for the types of
facilities under the Credit Agreement that are being assigned under this
Assignment (e.g. “Revolving Commitment”, “Tranche C Term Loan
Commitment”, etc.)





EXHIBIT E-2









 





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




	 	 	 	 	 
	 	 	ASSIGNOR
	 	 	[NAME OF ASSIGNOR]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	 	 	ASSIGNEE
	 	 	[NAME OF ASSIGNEE]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 





[Consented to and]4 Accepted:




	 	 	 	 	 
	GENERAL ELECTRIC CAPITAL CORPORATION,	 	 
	as Administrative Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	Title:	 	 
	 
	 	 	 	 
	[Consented to:]5	 	 
	 
	 	 	 	 
	AMERICAN REPROGRAPHICS COMPANY, L.L.C.	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	Name:	 	 
	Title:	 	 








 




			
	4	 	To be added only if the consent of the
Administrative Agent is required by the terms of the Credit Agreement.
	 
	5	 	To be added only if the consent of the Company is
required by the terms of the Credit Agreement.






EXHIBIT E-3








 






ANNEX 1




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT 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 Company, 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 Eligible Assignee under the Credit Agreement,
(iii) from and after the Effective Date, it shall be bound by the provisions of
the Credit Agreement 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 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, and (v) if it is a Non-US 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 that time, continue
to make its own credit 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.





EXHIBIT E-4









 






	2.	 	Payments. 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.6






	3.	 	General Provisions. This Assignment shall be binding upon, and inure to the benefit
of, the parties hereto and their respective successors and 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.







 




			
	6	 	Administrative Agent should consider whether this
method conforms to its systems. In some circumstances, the following
alternative language may be appropriate: “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 Assignee whether such amounts have accrued prior to or on or
after the Effective Date. The Assignor and the Assignee shall make all
appropriate adjustments in payments by the Administrative Agent for periods
prior to the Effective Date or with respect to the making of this assignment
directly between themselves.”





EXHIBIT E-5









 





EXHIBIT G TO

SECOND AMENDED AND RESTATED

CREDIT AND GUARANTY AGREEMENT




EFFECTIVE DATE CERTIFICATE




     THE UNDERSIGNED HEREBY CERTIFY AS FOLLOWS:



     1. We are, respectively, the chief executive officer and the chief financial officer of
AMERICAN REPROGRAPHICS HOLDINGS, L.L.C. (“AR
Holdings”), AMERICAN REPROGRAPHICS COMPANY, L.L.C.
(“Company”) and AMERICAN REPROGRAPHICS COMPANY (“Holdings”).



     2. Reference is made to the Second Amended and Restated Credit and Guaranty Agreement, dated
as of December [___], 2005 (as it may be amended, supplemented or otherwise modified, the “Credit
Agreement”; the terms defined therein and not otherwise defined herein being used herein as therein
defined), by and among AR Holdings, Company, Holdings, certain Subsidiaries of Company, as
Guarantors, the Lenders party thereto from time to time, GOLDMAN SACHS CREDIT PARTNERS L.P., as
Sole Lead Arranger and Joint Bookrunner, JPMORGAN CHASE BANK, N.A., as Syndication Agent, JPMORGAN
SECURITIES INC., as Joint Bookrunner, and GENERAL ELECTRIC CAPITAL CORPORATION as Administrative
Agent and as Collateral Agent.



     3. We have reviewed the terms of Section 3 of the Credit Agreement and the definitions and
provisions contained in such Credit Agreement relating thereto, and in our opinion we have made, or
have caused to be made under our supervision, such examination or investigation as is necessary to
enable us to express an informed opinion as to the matters referred to herein.



     4. Based upon our review and examination described in paragraph 3 above, we certify, on
behalf of Company, that:




     (i) as of the Effective Date, the representations and warranties contained in each of
the Credit Documents are true, correct and complete in all material respects on and as of
the Effective Date to the same extent as though made on and as of such date, except to the
extent such representations and warranties specifically relate to an earlier date, in which
case such representations and warranties are true, correct and complete in all material
respects on and as of such earlier date;




     (ii) as of the Effective Date, no injunction or other restraining order shall have been
issued and no hearing to cause an injunction or other restraining order to be issued shall
be pending or noticed with respect to any action, suit or proceeding seeking to enjoin or
otherwise prevent the consummation of, or to recover any damages or obtain relief as a
result of, the borrowing contemplated hereby;



EXHIBIT G-1









 






     (iii) as of the Effective Date, no event has occurred and is continuing or would result
from the consummation of the borrowing contemplated hereby that would constitute an Event of
Default or a Default; and




     (iv) as of the Effective Date, no event has occurred and is continuing which
constitutes a material default or a material event of default under the Existing
Indebtedness (as defined in the Credit Agreement).



     5. Attached as Annex A hereto are true and complete (and, where applicable, executed and
conformed) copies of each of the Related Agreements and Material Contracts which have been entered
into, amended, supplemented or revised after the Closing Date. Except as set forth herein there
have been no material amendments to those Related Agreements previously delivered to the
Administrative Agent in connection with the Existing Credit Agreement.



     6. Attached as Annex B hereto are true and complete (and, where applicable, executed and
conformed) copies of each of the Existing Seller Subordinated Notes and the Existing Earn-Out
Obligations which have been entered into, amended, supplemented or revised after the Closing Date
and not otherwise previously delivered to the Administrative Agent. Except as set forth herein
there have been no material amendments to those Existing Seller Subordinated Notes and the Existing
Earn-Out Obligations previously delivered to the Administrative Agent in connection with the
Existing Credit Agreement.



     7. Each Credit Party has requested the counsel listed on Annex C hereto to deliver to Agents
and Lenders on the Closing Date favorable written opinions setting forth substantially all the
matters in the form of opinion designated in Exhibit D annexed to the Credit Agreement, and as to
such other matters as Syndication Agent and Administrative Agent may reasonably request.



[Remainder of page intentionally left blank.]




EXHIBIT G-2









 





     The foregoing certifications are made and delivered as of December [___], 2005.



	 	 	 	 	 
	 	 	AMERICAN REPROGRAPHICS HOLDINGS, L.L.C.
	 
	 	 	 	 
	 

	 	By:
	 	 
	 

	 	 	 	 
	 

	 	 	 	Name: Sathiyamurthy Chandramohan
	 

	 	 	 	Title: Chief Executive Officer
	 
	 	 	 	 
	 

	 	By:
	 	 
	 

	 	 	 	 
	 

	 	 	 	Name: Mark W. Legg
	 

	 	 	 	Title: Chief Financial Officer
	 
	 	 	 	 
	 	 	AMERICAN REPROGRAPHICS COMPANY, L.L.C.
	 
	 	 	 	 
	 

	 	By:
	 	 
	 

	 	 	 	 
	 

	 	 	 	Name: Sathiyamurthy Chandramohan
	 

	 	 	 	Title: Chief Executive Officer
	 
	 	 	 	 
	 

	 	By:
	 	 
	 

	 	 	 	 
	 

	 	 	 	Name: Mark W. Legg
	 

	 	 	 	Title: Chief Financial Officer
	 
	 	 	 	 
	 	 	AMERICAN REPROGRAPHICS COMPANY
	 
	 	 	 	 
	 

	 	By:
	 	 
	 

	 	 	 	 
	 

	 	 	 	Name: Sathiyamurthy Chandramohan
	 

	 	 	 	Title: Chief Executive Officer
	 
	 	 	 	 
	 

	 	By:
	 	 
	 

	 	 	 	 
	 

	 	 	 	Name: Mark W. Legg
	 

	 	 	 	Title: Chief Financial Officer






EXHIBIT G-3









 





Annex A




Related Agreements and Material Contracts




EXHIBIT G-4









 





Annex B




Existing Seller Subordinated Notes and Existing Earn-Out Obligations




EXHIBIT G-5









 





Annex C




List of Counsel




EXHIBIT G-6









 






EXHIBIT L TO
SECOND AMENDED AND RESTATED

CREDIT AND GUARANTY AGREEMENT




SELLER SUBORDINATION AGREEMENT




     This
Seller Subordination Agreement (this “Agreement”), dated as of [___, 200_], is
entered into by and between AMERICAN REPROGRAPHICS COMPANY, L.L.C., a California limited liability
company (the “Buyer’’) and [NAME OF SELLER] (the “Seller’’) for the benefit of the Senior Lenders
(as defined herein).



     WHEREAS, the Buyer and the Seller have entered into that certain [Asset/Stock Purchase
Agreement dated as of [___, 200_],] [INSERT DESCRIPTION OF ALL SELLER SUBORDINATED NOTES AND
CONSULTING, EMPLOYMENT AND LEASE AGREEMENTS WHICH PROVIDE FOR EXTRAORDINARY PAYMENTS TO THE SELLER
OR ITS AFFILIATES IN CONNECTION WITH THE PURCHASE AGREEMENT] (collectively, the “Purchase
Documents”); and



     WHEREAS, the Seller has agreed to subordinate the Subordination Obligations (as defined below)
to the Senior Indebtedness (as defined below) on the terms and subject to the conditions hereof;



     NOW, THEREFORE, in consideration of the premises and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Buyer and the Seller agree as
follows;



     1. Definitions. As used herein, the following terms shall have the following meanings:



     “Holdings’’ American Reprographics Holdings, L.L.C., a California limited liability
company.



     “Person’’ means an individual, a partnership, a corporation, an association, a limited
liability company, a joint stock company, a trust, a joint venture, an unincorporated organization
or a governmental entity or any department, agency or political subdivision thereof.



     “Senior Agent’’ shall mean General Electric Capital Corporation, as the Administrative
Agent for the Lenders under the Senior Credit Agreement, and its successors in such capacity, or if
there is then no acting Administrative Agent under the Senior Credit Agreement, financial
institutions or other Persons holding a majority in principal amount of the outstanding Senior
Indebtedness under the Senior Credit Agreement.



     “Senior Credit Agreement” shall mean the Credit and Guaranty Agreement, dated as of
December 18, 2003, by and among the Buyer, Holdings, certain Subsidiaries of the Buyer, as
guarantors, the financial institutions and other



EXHIBIT L-1









 




Persons listed therein as lenders, Goldman Sachs Credit Partners L.P., as Lead Arranger, Sole
Book Runner and Syndication Agent, and General Electric Capital Corporation as Administrative Agent
and as Collateral Agent, as amended, restated, modified or supplemented from time to time, together
with any credit agreement or similar document from time to time executed by the Buyer, Holdings
and/or any of their respective subsidiaries to evidence any Refinancing (as defined in the
definition of Senior Indebtedness) or successive Refinancings.




     “Senior Debt Documents” shall mean the Senior Credit Agreement and all other documents
and instruments evidencing, governing, guarantying, creating or securing any Senior Indebtedness
under the Senior Credit Agreement (including, without limitation, the guaranty agreements executed
and delivered by Holdings and certain subsidiaries of the Buyer in respect of the Obligations under
and as defined in the Senior Credit Agreement) and under any other Senior Indebtedness, including
without limitation, indebtedness under the Senior Subordinated Note Documents (as defined in the
Senior Credit Agreement) and under any other Senior Indebtedness, including without limitation,
indebtedness under the Senior Note Indentures (as defined in the Senior Credit Agreement).



     “Senior Indebtedness’’ shall mean (i) all Obligations (as defined in the Senior Credit
Agreement) now or hereafter incurred pursuant to and in accordance with the Senior Debt Documents
relating to the Senior Credit Agreement, including any principal, prepayment charges, interest
(including, without limitation, interest accruing after the filing of a petition initiating any
proceeding under the Bankruptcy Code, whether or not allowed as a claim in such proceeding), fees,
indemnities and reimbursement of fees, expenses and other amounts, and (ii) any indebtedness and
other obligations incurred for the purpose of refinancing, restructuring, extending or renewing
(collectively, “Refinancing’’) the obligations of the Buyer under the Senior Credit Agreement as
set forth in clause (i) above.



     “Senior Lenders” shall mean the financial institutions and/or other Persons party to,
or holders of any Indebtedness outstanding under, the Senior Credit Agreement and/or the Senior
Note Indentures (as defined in the Senior Credit Agreement whether or not then in effect) as
“Lenders’’ from time to time.



     2. Subordination.



          (a) Agreement to Subordinate. The Buyer and the Seller (for itself and each future
holder of Subordinated Obligations) hereby agree that the indebtedness of the Buyer and any of its
subsidiaries evidenced by [INSERT REFERENCES TO THE SELLER SUBORDINATED NOTES AND THE RELEVANT
PROVISIONS OF THE PURCHASE AGREEMENT AND RELATED DOCUMENTS WITH RESPECT TO ANY ADDITIONAL EARNOUT
OBLIGATIONS (AS DEFINED IN THE SENIOR CREDIT AGREEMENT) AND TO ANY EXTRAORDINARY PAYMENTS TO THE
SELLER OR ITS AFFILIATES] and all rights or claims arising out of or associated with such
indebtedness (the “Subordinated Obligations’’), shall be junior and subordinate in



EXHIBIT L-2









 








right of payment to the prior payment in full in cash of all Senior Indebtedness, in
accordance with the provisions of this Section 2; provided, however, that except as
provided in sections 2(b) and 2(c) below Buyer may pay and Seller may receive and retain payments
which are currently due under the Subordinated Obligations. Each holder of Senior Indebtedness
shall be deemed to have acquired Senior Indebtedness in reliance upon the agreements of the Buyer
and the Seller contained in this Section 2. The provisions of this Section 2 shall be reinstated
if at any time any payment of any of the Senior Indebtedness is rescinded or must otherwise be
returned by any holder of Senior Indebtedness or any representative of such Seller upon the
insolvency, bankruptcy or reorganization of the Buyer or any affiliate of the Buyer. In no event
shall the Seller commence any action or proceeding to contest the provisions of this Section 2 or
the priority of the Liens (as defined in the Senior Credit Agreement) granted to the holders of the
Senior Indebtedness by the Buyer. The Seller shall not take, accept or receive any collateral
security from the Buyer for the payment of the Subordinated Obligations.




          (b) Liquidation, Dissolution, Bankruptcy. In the event of any insolvency, bankruptcy,
dissolution, winding up, liquidation, arrangement, reorganization, marshalling of assets or
liabilities, composition, assignment for the benefit of creditors or other similar proceedings
relating to the Buyer, its debts, its property or its operations, whether voluntary or involuntary,
including, without limitation the filing of any petition or the taking of any action to commence
any of the foregoing (which, in the case of action by a third party, is not dismissed within 60
days) (a “Bankruptcy Event’’), all Senior Indebtedness shall first be paid in full in cash or other
immediately available funds before the Seller shall be entitled to receive or retain any payment or
distribution of assets of the Buyer with respect to any Subordinated Obligations. In the event of
any such Bankruptcy Event, any payment or distribution of assets to which the Seller would be
entitled if the Subordinated Obligations were not subordinated to the Senior Indebtedness in
accordance with this Section 2, whether in cash, property, securities or otherwise, shall be paid
or delivered by the debtor, custodian, trustee or agent or other Person making such payment or
distribution, or by the Seller if received by it, directly to the Senior Agent on behalf of the
holders of the Senior Indebtedness (subject to any intercreditor agreement or arrangement among
such holders) for application to the payment of the Senior Indebtedness remaining unpaid, to the
extent necessary to make payment in full in cash or other immediately available funds of all Senior
Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to or
for the holders of the Senior Indebtedness.




          (c) No Payments with Respect to Subordinated Obligations in Certain Circumstances.




               (i) In circumstances in which Section 2(b) is not applicable, no payment of any nature
(including, without limitation, any distribution of assets) in respect of the Subordinated
Obligations (including, without limitation, pursuant to any judgment with respect thereto or on
account of the purchase or redemption or other acquisition of Subordinated Obligations, by set off,
prepayment



EXHIBIT L-3








 





exchange or other manner) shall be made by or on behalf of the Buyer if, at the time of such
payment:




                    (A) a default in the payment when due (whether at the maturity thereof, or upon acceleration
of maturity or otherwise and without giving effect to any applicable grace periods) of all or any
portion of the Senior Indebtedness (whether of principal, interest or any other amount with respect
thereto) shall have occurred, and such default shall not have been cured or waived in accordance
with the terms of the Senior Debt Documents; or



                    (B) subject to the last sentence of this Section 2(c), (x) the Buyer shall have received
notice from the Senior Agent of the occurrence of one or more “Events of Default” (as defined in
the Senior Credit Agreement) in respect of the Senior Indebtedness (other than payment defaults
described in Section 2(c)(i)(A) above), (y) any such Event of Default shall not have been cured or
waived in accordance with the terms of the Senior Debt Documents or the Second Lien Debt Documents,
as applicable, and (z) 150 days shall not have elapsed since the date such notice was received.



     The Buyer may resume payments (and may make any payments missed due to the application of
Section 2(c)(i)) in respect of the Subordinated Obligations or any judgment with respect thereto:



     (I) in the case of a default referred to in clause (A) of this Section 2(c)(i), upon a cure or
waiver thereof in accordance with the terms of the Senior Debt Documents and the Second Lien Debt
Documents; or



     (II) in the case of an Event of Default or Events of Default referred to in clause (B) of this
Section 2(c)(i), upon the earlier to occur of (1) the cure or waiver of all such Events of Default
in accordance with the terms of the Senior Debt Documents and the Second Lien Debt Documents, or
(2) the expiration of such period of 150 days.



               (ii) Following any acceleration of the maturity of any Senior Indebtedness and as long as such
acceleration shall continue unrescinded and unannulled, such Senior Indebtedness shall first be
paid in full in cash before any payment is made on account of or applied on the Subordinated
Obligations.



               (iii) The Buyer shall give prompt written notice to the Seller of (i) any default in respect
of Senior Obligations referred to in Section 2(c)(i)(A) and (ii) any notice of the type described
in Section 2(c)(i)(B) from the Senior Agent or any Second Priority Agent.



          (d) When Distribution Must Be Paid Over. In the event that the Seller shall receive
any payment or distribution of assets that the Seller is not entitled to receive or retain under
the provisions of this Agreement in respect of the Subordinated Obligations, the Seller shall hold
any amount so received in trust for the holders of Senior Indebtedness, shall segregate such assets
from other assets held

EXHIBIT L-4








 








by the Seller and shall forthwith turn over such payment or distribution (without liability
for interest thereon) to the Senior Agent on behalf of the holders of Senior Indebtedness (subject
to any intercreditor agreement or arrangement among such holders) in the form received (with any
necessary endorsement) to be applied to Senior Indebtedness.




          (e) Exercise of Remedies. So long as any Senior Indebtedness is outstanding (including
any loans, any letters of credit, any commitments to lend or any lender guarantees), the Seller
shall not exercise any rights or remedies in respect of the Subordinated Obligations, including,
without limitation, any action (l) to demand or sue for collection of amounts payable under any
Purchase Document in respect of the Subordinated Obligations or (2) to commence or join with any
other creditor (other than the holder of a majority in principal amount of the Senior Indebtedness)
in commencing any proceeding in connection with or premised on the occurrence of a Bankruptcy Event
prior to the earlier of:




                    (A) the payment in full in cash or other immediately available funds of all Senior
Indebtedness;



                    (B) the initiation of a proceeding (other than a proceeding prohibited by clause (2) of this
Section 2(e)) in connection with or premised upon the occurrence of a Bankruptcy Event;



                    (C) the expiration of 150 days immediately following the receipt by the Senior Agent and the
Second Priority Agent of notice that the Seller intends to exercise its rights or remedies in
respect of the Subordinated Obligations from the Seller; and



                    (D) the acceleration of the maturity of the Senior Indebtedness in excess of $10,000,000;



     provided, however, that if, with respect to (B) and (D) above, such proceeding
or acceleration, respectively, is rescinded, or with respect to (C) above, during such 150-day
period such event of condition giving rise to the Seller’s right to exercise its rights or remedies
in respect of the Subordinated Obligations has been cured or waived, the prohibition against taking
the actions described in this Section 2(e) shall automatically be reinstated as of the date of the
rescission, cure or waiver, as applicable. In all events, unless an event described in clause (B)
or (D) above has occurred and not been rescinded, the Seller shall give thirty (30) days prior
written notice to the Senior Agent and the Second Priority Agent before taking any action described
in this Section 2(e), which notice shall describe with specificity the action that the Seller in
good faith intends to take.



          (f) Amending Senior Indebtedness. Any holder of Senior Indebtedness may, at any time
and from time to time, without the consent of or notice to the Seller (i) modify or amend the terms
of the Senior Indebtedness,

EXHIBIT L-5









 








(ii) sell, exchange, release, fail to perfect a lien on or a security interest in or otherwise in
any manner deal with or apply any property pledged or mortgaged to secure, or otherwise securing,
Senior Indebtedness, (iii) release any guarantor or any other person liable in any manner for the
Senior Indebtedness, (iv) exercise or refrain from exercising any rights against the Buyer or any
other person, (v) apply any sums by whomever paid or however realized to Senior Indebtedness or
(vi) take any other action that might be deemed to impair in any way the rights of the Seller. Any
and all of such actions may be taken by the holders of Senior Indebtedness without incurring
responsibility to the Seller and without impairing or releasing the obligations of the Seller to
the holders of Senior Indebtedness.




          (g) Certain Rights in Bankruptcy. In order to enable each holder of Senior
Indebtedness to enforce their rights hereunder in any bankruptcy, insolvency or similar proceeding,
the Seller hereby irrevocably authorizes and empowers the Senior Agent (or if there is none, the
Second Priority Agent) (and its representative or representatives) to demand, sue for, collect and
receive all payments and distributions in respect of the Subordinated Obligations, to file and
prove all claims (including claims in bankruptcy) relating to the Subordinated Obligations, to
exercise any right to vote arising with respect to the Subordinated Obligations and any claims
hereunder in any bankruptcy, insolvency or similar proceeding and take any and all other actions in
the name of the Seller, as the Senior Agent (or if there is none, the Second Priority Agent)
determines to be necessary or appropriate.




          (h) Subrogation. No payment or distribution to any holder of Senior Indebtedness
pursuant to the provisions of this Agreement shall entitle the Seller to exercise any right of
subrogation in respect thereof until (i)(1) all Senior Indebtedness shall have been paid in full in
cash, (2) all commitments to lend under Senior Indebtedness shall have been terminated, (3) all
letters of credit shall have been cancelled or otherwise terminated, (4) all guarantees
constituting Senior Indebtedness shall have been terminated and (5) all lender guarantees
constituting Senior Indebtedness shall have been permanently reduced to zero or (ii) all holders of
Senior Indebtedness have consented in writing to the taking of such action.




          (i) Relative Rights. The provisions of this Section 2 are for the benefit of the
holders of Senior Indebtedness (and their successors and assigns) and shall be enforceable by them
directly against the Seller. The Seller acknowledges and agrees that any breach of the provisions
of this Section 2 will cause irreparable harm for which the payment of monetary damages may be
inadequate. For this reason, the Seller agrees that, in addition to any remedies at law or equity
to which a holder of the Senior Indebtedness may be entitled, a holder of the Senior Indebtedness
will be entitled to an injunction or other equitable relief to prevent breaches of the provisions
of this Section 2 and/or to compel specific performance of such provisions. The provisions of this
Section 2 shall continue to be effective or be reinstated, as the case may be, if at any time any
payment of Senior Indebtedness is rescinded or must otherwise be returned by any holder of Senior
Indebtedness upon the occurrence of a Bankruptcy Event or otherwise, all as though

EXHIBIT L-6









 








such payment had not been made. The provisions of this Section 2 are not intended to impair
and shall not impair as between the Buyer and the Seller, the obligation of the Buyer, which is
absolute and unconditional, to pay the Seller all amounts owing under the Purchase Documents in
respect of the Subordinated Obligations.




          (j) Transfers. The Seller agrees that it will not (a) sell, assign or otherwise
transfer, in whole or in part, the Subordinated Obligations owed to it or any interest therein to
any other person or entity (a "Transferee") or (b) create, incur or suffer to exist any
security interest, lien, charge or other encumbrance whatsoever upon any Subordinated Obligations
owed to it in favor of any Transferee unless, in either case, such Transferee expressly
acknowledges to the Senior Lenders in writing the subordination provided for herein and agrees to
be bound by all of the terms hereof.




          (k) Amendment. So long as any Senior Indebtedness (including any letter of credit or
lender guarantee) is outstanding or there is a commitment to lend any Senior Indebtedness
(including any commitment under the Senior Debt Documents or the Second Lien Debt Documents, as
applicable) the terms of this Agreement may be amended only with the consent of the Senior Agent.
Subject to the foregoing, without the consent of the Senior Agent hereof, this Agreement may be
amended by the Buyer and the Seller to cure any ambiguity, defect or inconsistency that does not
affect the subordination provisions hereof or the rights of the Senior Lenders.




          (l) Acknowledgment of Security Interest. The Seller hereby acknowledges, and agrees
to, the Buyer’s grant of its interest herein to the lenders under the Senior Credit Agreement and
the Second Lien Credit Agreement to collaterally secure the Buyer’s obligations under such Senior
Credit Agreement and Second Lien Credit Agreement.




          (m) Reserved.




          (n) Governing Law. The construction, validity and interpretation of the provisions of
Section 2 of this Agreement shall be governed by and construed in accordance with the domestic laws
of the State of New York, without giving effect to any choice of law or conflict of law provision
or rule (whether of the State of New York or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of New York.




[Remainder of page intentionally left blank.]




EXHIBIT L-7








 








     IN WITNESS WHEREOF, the Buyer and the Seller have executed and delivered this Agreement on the
date first written above.



	 	 	 	 	 
	 	AMERICAN REPROGRAPHICS COMPANY, L.L.C.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	[NAME OF SELLER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




EXHIBIT L-8










 






EXHIBIT M TO

SECOND AMENDED AND RESTATED

CREDIT AND GUARANTY AGREEMENT




JOINDER AGREEMENT




     This
JOINDER AGREEMENT, dated as of [___, 20___] (this “Agreement”), by and among [NAMES
OF NEW LENDERS] (each a “Lender” and collectively the “Lenders”), AMERICAN REPORGRAPHICS COMPANY,
L.L.C., a California limited liability company, as a borrower (“Company”), AMERICAN REPROGRAPHICS
HOLDINGS, L.L.C., a California limited liability company, as a guarantor (“AR Holdings”), AMERICAN
REPROGRAPHICS COMPANY, a Delaware corporation, as a guarantor (“Holdings”), and certain
Subsidiaries of Company, as guarantors, GOLDMAN SACHS CREDIT PARTNERS L.P. (“GSCP”), as Sole Lead
Arranger and Joint Bookrunner, JPMORGAN CHASE BANK, N.A. (“JPMCB”), as Syndication Agent, JPMORGAN
SECURITIES INC. (“JPM”), as Joint Bookrunner, and GENERAL ELECTRIC CAPITAL CORPORATION (“GECC”), as
Administrative Agent and Collateral Agent.



RECITALS:




     WHEREAS, reference is hereby made to the SECOND AMENDED AND RESTATED CREDIT AND GUARANTY
AGREEMENT, dated as of December [ ], 2005 (as it may be amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”; the terms defined therein and not
otherwise defined herein being used herein as therein defined), by and among Company, AR Holdings,
Holdings, Lenders party thereto from time to time, GSCP, as Sole Lead Arranger and Joint
Bookrunner, JPMCB, as Syndication Agent, JPM, as Joint Bookrunner, and GECC, as Administrative
Agent and Collateral Agent; and



     WHEREAS, subject to the terms and conditions of the Credit Agreement, Company may provide New
Term Loan Commitments by entering into one or more Joinder Agreements with the New Term Loan
Lenders.



     NOW, THEREFORE, in consideration of the premises and agreements, provisions and covenants
herein contained, the parties hereto agree as follows:



     Each Lender party hereto hereby agrees to commit to provide its respective Commitment as set
forth on Schedule A annexed hereto, on the terms and subject to the conditions set forth below:



     Each Lender (i) confirms that it has received a copy of the Credit Agreement and the other
Credit Documents, together with copies of the financial statements referred to therein and such
other documents and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Joinder Agreement (this “Agreement”); (ii) agrees that it will,
independently and without reliance upon the Administrative Agent or any other Lender or



EXHIBIT M-1









 







Agent and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) appoints and authorizes Administrative Agent and Syndication Agent to take such
action as agent on its behalf and to exercise such powers under the Credit Agreement and the other
Credit Documents as are delegated to Administrative Agent and Syndication Agent, as the case may
be, by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv)
agrees that it will perform in accordance with their terms all of the obligations which by the
terms of the Credit Agreement are required to be performed by it as a Lender.



     Each Lender hereby agrees to make its Commitment on the following terms and conditions1:




	1.	 	Applicable Margin. The Applicable Margin for each Series [___] New Term Loan shall mean, as
of any date of determination, a percentage per annum as set forth below plus the
pricing premium, if any, less the pricing reduction, if any, in each case as set forth below:





	 	 	 	 	 
	Series [__] New Term Loans
	Total	 	Eurodollar	 	Base Rate
	Leverage Ratio	 	Rate Loans	 	Loans
	[___:___]

	 	[___]%
	 	[___]%
	 

	 	 
	 	 






	2.	 	Principal Payments. Company shall make principal payments on the Series [___] New Term Loans
in installments on the dates and in the amounts set forth below:





	 	 	 	 	 
	 	 	(B)	 
	(A)	 	Scheduled	 
	Payment	 	Repayment of	 
	Date	 	Series [__] New Term Loans	 
	 
	 	$	 
	 
	 
	 	$	 
	 
	 
	 	$	 
	 
	 
	 	$	 
	 
	 
	 	$	 
	 
	 
	 	$	 
	 
	 
	 	$	 
	 
	TOTAL
	 	$	 
	 








 




			
	 	 	1 Insert completed items 1-7 as applicable, with respect
to New Term Loans with such modifications as may be agreed to by the parties
hereto to the extent consistent with Section 2.24 of the Credit Agreement.




EXHIBIT M-2









 











	3.	 	Voluntary and Mandatory Prepayments. Scheduled installments of principal of the Series [___]
New Term Loans set forth above shall be reduced in connection with any voluntary or mandatory
prepayments of the Series [___]New Term Loans in accordance with Sections 2.12, 2.13 and 2.14
of the Credit Agreement respectively; and provided further, that the Series
[___] New Term Loans and all other amounts under the Credit Agreement with respect to the
Series [___] New Term Loans shall be paid in full no later than six months prior to the
maturity of any Subordinated Indebtedness, and the final installment payable by Company in
respect of the Series [___] New Term Loans on such date shall be in an amount, if such amount
is different from the amount specified above, sufficient to repay all amounts owing by Company
under the Credit Agreement with respect to the Series [___] New Term Loans.






	4.	 	Prepayment Fees. Company agrees to pay to each [New Term Loan Lender] the following
prepayment fees, if any: [___].





     [Insert other additional prepayment provisions with respect to New Term Loans]




	5.	 	Other Fees. Company agrees to pay each New Term Loan Lender its Pro Rata Share of an
aggregate fee equal to [___] on [___, 20___].






	6.	 	Proposed Borrowing. This Agreement represents Company’s request to borrow Series [___] New
Term Loans from New Term Loan Lender as follows (the
“Proposed Borrowing”):





	 	 	 	 	 	 	 	 	 
	a.	 	Business Day of Proposed Borrowing: [________, 20__]
	b.	 	Amount of Proposed Borrowing: $[__________]
	c.

	 	Interest rate option:
	 	o
	 	a.
	 	Base Rate Loan(s)
	 

	 	 	 	o
	 	b.
	 	Eurodollar Rate Loans with an initial
Interest Period of ___month(s)







	7.	 	[New Lenders. Each New Term Loan Lender acknowledges and agrees that upon its execution of
this Agreement and the making of Series [___] New Term Loans that such New Term Loan Lender
shall become a “Lender” under, and for all purposes of, the Credit Agreement and the other
Credit Documents, and shall be subject to and bound by





EXHIBIT M-3









 










the terms thereof, and shall perform all the obligations of and shall have all rights of a
Lender thereunder.]1




	8.	 	Credit Agreement Governs. Except as set forth in this Agreement, Series [___] New Term Loans
shall otherwise be subject to the provisions of the Credit Agreement and the other Credit
Documents.






	9.	 	Company’s Certifications. By its execution of this Agreement, the undersigned officer, to
the best of his or her knowledge, and Company hereby certify that:






	 	i.	 	The representations and warranties contained in the Credit
Agreement and the other Credit Documents are true, complete and correct in all
material respects on and as of the date hereof to the same extent as though
made on and as of the date hereof, except to the extent such representations
and warranties specifically relate to an earlier date, in which case such
representations and warranties were true, complete and correct in all material
respects on and as of such earlier date;
	 
	 	ii.	 	No event has occurred and is continuing or would result from
the consummation of the Proposed Borrowing contemplated hereby that would
constitute a Default or an Event of Default; and
	 
	 	iii.	 	Company has performed in all material respects all agreements
and satisfied all conditions which the Credit Agreement provides shall be
performed or satisfied by it on or before the date hereof.






	10.	 	Company Covenants. By its execution of this Agreement, Company hereby covenants that:






	 	i.	 	Company shall deliver or cause to be delivered the following
legal opinions and documents: [___], together with all other legal
opinions and other documents reasonably requested by Administrative Agent in
connection with this Agreement; and
	 
	 	ii.	 	Set forth on the attached Officers’ Certificate are the
calculations (in reasonable detail) demonstrating compliance with the financial
tests described in Section 6.8 of the Credit Agreement.






	11.	 	Eligible Assignee. By its execution of this Agreement, each New Term Loan Lender represents
and warrants that it is an Eligible Assignee.






	12.	 	Notice. For purposes of the Credit Agreement, the initial notice address of each New Term
Loan Lender shall be as set forth below its signature below.







 




			
	 	 	1 Insert bracketed language if the lending institution is
not already a Lender.





EXHIBIT M-4









 






	13.	 	Non-US Lenders. For each New Term Loan Lender that is a Non-US Lender, delivered herewith to
Administrative Agent are such forms, certificates or other evidence with respect to United
States federal income tax withholding matters as such New Term Loan Lender may be required to
deliver to Administrative Agent pursuant to subsection 2.20(c) of the Credit Agreement.






	14.	 	Recordation of the New Loans. Upon execution and delivery hereof, Administrative Agent will
record the Series [___] New Term Loans made by New Term Loan Lenders in the Register.






	15.	 	Amendment, Modification and Waiver. This Agreement may not be amended, modified or waived
except by an instrument or instruments in writing signed and delivered on behalf of each of
the parties hereto.






	16.	 	Entire Agreement. This Agreement, the Credit Agreement and the other Credit Documents
constitute the entire agreement among the parties with respect to the subject matter hereof
and thereof and supersede all other prior agreements and understandings, both written and
verbal, among the parties or any of them with respect to the subject matter hereof.






	17.	 	GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL
BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.






	18.	 	Severability. Any term or provision of this Agreement which is invalid or unenforceable in
any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such
invalidity or unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of any of the
terms or provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so
broad as would be enforceable.






	19.	 	Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed
to be an original, but all of which shall constitute one and the same agreement.





[Remainder of page intentionally left blank]




EXHIBIT M-5









 








     IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to
execute and deliver this Joinder Agreement as of the date first written above.



	 	 	 
	[NAME OF NEW LENDER]
	 
	 	 
	By:

	 	 

	Name:
	 	 
	Title:
	 	 
	 
	 	 
	Notice Address:
	 
	 	 
	Attention:
	Telephone:
	Facsimile:
	 
	 	 
	AMERICAN REPORGRAPHICS COMPANY, L.L.C.
	 
	 	 
	By:

	 	 

	Name:
	 	 
	Title:
	 	 
	 
	 	 
	AMERICAN REPROGRAPHICS HOLDINGS, L.L.C.
	 
	 	 
	By:

	 	 

	Name:
	 	 
	Title:
	 	 
	 
	 	 
	AMERICAN REPROGRAPHICS COMPANY
	 
	 	 
	By:

	 	 

	Name:
	 	 
	Title:
	 	 






EXHIBIT M-6









 





	 	 	 
	[NAME OF SUBSIDIARY]
	 
	 	 
	By:

	 	 

	Name:
	 	 
	Title:
	 	 






EXHIBIT M-7









 





	 	 	 
	Consented to by:
	 
	 	 
	JPMORGAN CHASE BANK, N.A.,
	as Syndication Agent
	 
	 	 
	By:

	 	 

	 

	 	     Authorized Signatory
	 
	 	 
	GENERAL ELECTRIC CAPITAL CORPORATION,
	as Administrative Agent
	 
	 	 
	By:

	 	 

	Name:
	 	 
	Title:
	 	 







EXHIBIT M-8









 






SCHEDULE A

TO JOINDER AGREEMENT




	 	 	 	 	 
	Name of Lender	 	Type of Commitment	 	Amount
	[                                        ]

	 	New Term Loan

Commitment
	 	$[                                        ]
	 
	 	 	 	 
	[                                        ]

	 	New Term Loan

Commitment
	 	$[                                        ]
	 
	 	 	 	 
	 

	 	 	 	Total: [                                        ]







EXHIBIT M-9